EXHIBIT 10.1
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SUBLEASE
This sublease dated February 1, 2000 between Synaptic Pharmaceutical
Corporation, a Delaware corporation having its principal offices at 000 Xxxxxxx
Xxxx, Xxxxxxx, XX 00000 (the "Sublessor") and Linguagen Corp. (the "Sublessee").
WHEREAS, Sublessor is the tenant of ARE 000 Xxxxxxx Xxxx, LLC (the
"Overlandlord") under certain lease agreements and amendments thereto listed on
Schedule A attached hereto and made part hereof (collectively the "Xxxxxxxxx")
relating to land and improvements located in the County of Bergen, Town of
Paramus, State of New Jersey known as 000 Xxxxxxx Xxxx (the "Paramus Facility");
and
WHEREAS, the Sublessor desires to sublet a portion of the Paramus
Facility comprised of approximately 2,500 square feet located in the southeast
part of the Paramus Facility as shown on Schedule B attached hereto and made a
part hereof (the "Demised Premises") to the Sublessee upon and subject to the
terms and conditions hereinbelow setforth;
WITNESSETH
That in consideration of the mutual agreements herein contained, the
parties hereto do hereby covenant to and with each other as follows:
1. DEMISE OF PREMISES
A. Sublessor does hereby sublet to Sublessee and Sublessee does hereby
sublet from Sublessor the Demised Premises at the rent and upon the
terms and conditions herein stated, for a term of up to eighteen (18)
months to commence on February 1, 2000 (the "Commencement Date") and
to expire at midnight on July 31, 2001 (the "Expiration Date"), such
period hereinafter referred to as the "Term".
B. The Sublessee can effect a termination of this Sublease prior the
Expiration Date by informing Sublessor in writing no later than 60
days of its intention to surrender the Demised premises, hereinafter
referred to as "Early Termination". Early Termination of this Sublease
will result in the surrender by the Sublessee of any security deposit
to the Sublessor.
2. USE
A. The Demised Premises may be occupied and used for the following use
and purposes (and for no other): research and development laboratory
and related offices, at all times in accordance with applicable zoning
laws, rules and regulations now in effect or which may become
effective during the Term.
B. Sublessee shall not use the Demised Premises for a business that
competes with the primary business of the Overlandlord.
C. Sublessee
shall not use or permit the use of the Demised Premises or any part
thereof in any way, which would violate the covenants, agreements,
terms provisions and conditions of this Sublease or for any unlawful
purpose or in any unlawful manner or in violation of the Certificate
of Occupancy for the Demised Premises (if any) or the Paramus
Facility.
3. MONTHLY RENT
A. Sublessee agrees to pay Sublessor a fixed monthly rent ("Rent") in
advance, without offset, counterclaim or diminution, on or before the
first day of each month during the Term. All payments of Rent shall be
made to the Sublessor at its address hereinabove provided. Sublessee
shall pay to the Sublessor Rent according to the following schedule:
(i) for the period from and including February 1, 2000, through
and including July 31, 2000, the annual rate of $17.50 per square
foot ($3,645.83 per month); and
(ii) for the period from and including August 1, 2000, through and
including July 31, 2001, the annual rate of $18.75 per
square foot ($3,906.25 per month).
B. If, upon 90 days prior written request by the Sublessee, and
subsequent timely approval by the Sublessor, the Sublessee expresses
an intention to remain on the Demised Premises, the Sublessor, at its
option, may extend the term of this Sublease for a period of
twenty-four (24) months (the "Extension Period"). During the Extension
Period, which will be for the period from and including August 1, 2001
through and including July 31, 2003, Sublessee agrees to pay Sublessor
Rent, which during the first twelve (12) months shall be at the annual
rate of $21.00 per square foot ($4,375.00 per month), and during the
subsequent twelve (12) months shall be at $21.00 per square foot
adjusted to reflect the twelve month increase in the Consumer Price
Index as published by the Department of Labor, Bureau of Statistics
for All Urban Consumers for the month of July 2002.
C. Utilities and services furnished to the Demised Premises for the
benefit of the Sublessee shall be provided and paid for as follows:
(a) Water -- by Sublessor
(b) Electricity -- by Sublessor
(c) HVAC -- by Sublessor
(d) Janitorial and rubbish removal -- by Sublessee
(e) Janitorial in common areas -- by Sublessor
(f) Cafeteria subsidy -- by Sublessee
D. Sublessee agrees to make direct payment of rent to the Overlandlord
upon notice to Sublessee of Sublessor's default under the Xxxxxxxxx.
4. SUBLESSEE'S ALTERATIONS
A. No alteration or improvements may take place within the Demised
Premises during the Term of this Sublease without the express written
consent of both the Sublessor and Overlandlord, subject to the terms
of the Xxxxxxxxx.
5. SUBLETTING; ASSIGNMENT
A. Neither the Demised Premises nor any portion thereof may be sublet or
occupied or used at any time by persons other than the Sublessee.
B. This Sublease may not be assigned.
6. THE XXXXXXXXX
A. Sublessor represents (i) that it holds 83,843 square feet in the
Paramus Facility free of encumbrances pursuant to the Xxxxxxxxx; (ii)
that the Xxxxxxxxx remains in full force and effect as of the date
hereof; (iii) that Sublessor is current with respect to its rent
payments and has not received notice from the Overlandlord of any
breach or default with respect to any of the Sublessor's obligations
of the Xxxxxxxxx
B. Sublessee warrants to Sublessor that, from and after the Commencement
Date, Sublessor shall not be placed or rendered in breach, violation
of or in default with respect to any of Sublessor's duties or
obligations as lessee under the Xxxxxxxxx nor with respect to failure
to fulfill or comply with or cause compliance with or fulfillment of
any condition, representation or warranty therein contained;
C. Sublessor grants no rights to Sublessee greater as to scope or
duration than those arising under the Xxxxxxxxx. Sublessor reserves to
itself the reversionary interest in the Xxxxxxxxx and in the Demised
Premises following termination of this sublease or expiration of its
Term.
7. INDEMNIFICATION; INSURANCE
A. Sublessee shall indemnify, defend and save Sublessor and Overlandlord
harmless against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses which may be alleged,
imposed upon or incurred by Sublessor or Overlandlord by reason of any
of the following occurring during the Term of this Sublease:
(a) Any matter, cause or thing arising out of use, occupancy,
control or management of the Demised Premises or any part thereof caused by the
Sublessee or any of its agents, contractors, servants, employees, licensees or
invitees;
(b) Any work or thing done in, or about the Demised Premises or
any part thereof by Sublessee or any of its agents, contractors, servants,
employees, licensees or invitees;
(c) Any negligence on the part of Sublessee or any of its agents,
contractors, servants, employees, licensees or invitees;
(d) Any accident, injury, death or damage to any person or
property occurring on the Demised Premises, or any part thereof where such
accident, injury, death or damage resulted from an act or omission on the part
of the Sublessee or any of its agents, contractors, servants, employees,
licensees or invitees or on the part of any other person on Demised Premises
under or by right of the Sublessee or its leasehold estate;
(e) Any accident, injury, death or damage to any person or
property occurring on any approaches to or exits from the Demised Premises,
but not included in the Demised Premises,where such accident, injury, death or
damage resulted from an act or omission on the part of the Sublessee or any
of its agents, contractors, servants, employees, licensees or invitees
or on the part of any other person on, in, near or about the Demised Premises
under or by right of the Sublessee or its leasehold estate;
(f) All attorneys fees, costs of investigation and defense and
other expenses incurred by Sublessor or Overlandlord in connection with any
matter indemnified against, including the costs of enforcing the within
indemnification.
B. Sublessor agrees to promptly notify Sublessee of any claim asserted
against it for which indemnification is sought and shall promptly send
to Sublessee copies of all papers or legal processes served upon it in
connection with any action or proceeding brought against Sublessor by
reason of any such claim. Sublessee's indemnity shall survive the Term
of this Sublease.
C. Throughout the Term of this Sublease, and any other period during
which Sublessee shall be in possession or occupancy, Sublessee, at its
sole cost and expense, shall maintain in force and effect the
following insurance coverages in respect of the Demised Premises;
(a) Fire and extended coverage insuring Sublessee's furniture,
furnishings, trade fixtures and leasehold improvements
against loss or damage by fire and customary all risk
"extended coverages" with limits of not less than their full
replacement value;
(b) Comprehensive general public liability insurance, naming
Sublessee, Sublessor and Overlandlord as insureds, with limits
of not less than FIVE MILLION ($5,000,000) DOLLARS for
personal and bodily injury or death to one person, FIVE
MILLION $5,000,000 DOLLARS for death or personal and bodily
injury to all persons in any one occurrence, and FIVE HUNDRED
THOUSAND ($500,000) DOLLARS for property damage. The amount of
these limits may be increased at the Sublessor's or
Overlandlord's reasonable discretion.
(c) Prior to commencement of any repairs, alterations or
construction activities, Sublessee shall ensure that any
contractor or contractor's employee who may be performing
such repairs, alterations or construction activities, is
covered by an appropriate liability policy.
D. All insurance required to be carried by Sublessee hereunder, unless
otherwise stated herein, shall insure Sublessor, the Overlandlord and
such other reasonable designees of Sublessor as may have insurable
interests. Such policies shall be issued by insurance companies with a
general policy holder's rating of not less than B+ and a financial
rating of not less than Class X as rated by the most current Best's
Insurance Reports. Each such policy shall contain a provision to the
effect that it cannot be cancelled or amended, insofar as the Demised
Premises, without at least 30 days prior written notice to the
Sublessor. Each such policy shall contain a waiver of subrogation
clause whereby the insurer waives all rights of subrogation as against
the Overlandlord, Sublessor and their employees, agents and
representatives. Such casualty policies shall, by their terms, be
payable notwithstanding any act or negligence of Sublessee, Sublessor
or Overlandlord or their agents, or employees, and notwithstanding the
occupation or use of the Demised Premises for purposes more hazardous
than permitted by the policy. A duplicate original on each such
required policy or original certificate of each such coverage shall be
delivered by Sublessee to Sublessor prior to the first occupancy of
the Demised Premises by Sublessee and thereafter not less than 30 days
prior to the expiration of such policy.
E. Sublessor and Sublessee hereby remise and release each other and their
respective officers, employees, agents and other representatives of
and from any liability hereafter arising from loss, damage or injury
caused by fire or other casualty covered by their respective
insurance. Such insurance shall contain a waiver of the insurer's
right of subrogation.
F. To the maximum extent permitted by law, Sublessee agrees that
Sublessor or Overlandlord shall not be responsible or liable to the
Sublessee or to those claiming by, through or under Sublessee, for any
loss or damage to property of Sublessee or of others that may be
placed or contained within the Demised Premises.
8. DAMAGE OR DESTRUCTION
A. Sublessee shall notify Sublessor promptly of any damage or destruction
of the Demised Premises by fire, explosion, storm, flood, water, wind,
Act of God or other cause ("Casualty Damage") and in no event later
than five (5) days thereafter. The Sublessee represents, warrants and
covenants that in the case of Casualty Damage, the Sublessee shall
perform those obligations with respect to repair, restoration and/or
reconstruction of the Paramus Facility as Sublessor is obligated to
perform pursuant to the Xxxxxxxxx.
B. Sublessor represents, warrants and covenants that in the case of
Casualty Damage to the Demised Premises that is caused by the actions
of the Sublessor, the Sublessor shall perform those obligations with
respect to repair, restoration and/or reconstruction of the Demised
Premises in a timely manner.
9. REQUIREMENTS OF LAW
A. The Sublessee agrees to observe and comply with all laws, ordinances,
statutes, court orders, rules, and regulations of the Federal, State,
County and Municipal authorities applicable to the use and occupancy
by the Sublessee of the Demised Premises and/or to Sublessee's
business therein. The Sublessee agrees not to do or to permit anything
to be done on the Demised Premises, or keep anything therein, which
will increase the rate of fire insurance premiums over their current
levels or which will obstruct or interfere with the rights of other
tenants within the Paramus Facility, or which will conflict with the
regulations of the local fire department.
B. Without limiting the generality of the foregoing, Sublessee
acknowledges the existence of environmental laws, rules and
regulations with which the Sublessee shall comply, including but not
limited to the Environmental Cleanup Responsibility Act of 1983 and
the regulations promulgated thereunder ("ECRA") as amended by the
Industrial Site Recovery Act of 1993; the regulation promulgated
thereunder and any successor or amended legislation or regulations
("ISRA").
10. REPAIRS, MAINTENANCE, ALTERATIONS
A. Throughout the Term of this Sublease, Sublessee shall, at its sole
cost and expense, take good care of the Demised Premises and keep the
same in good order and condition and will bear the costs of keeping
the Demised Premises in good order.
11. CONDEMNATION
A. If the Paramus Facility or any part thereof wherein the Demised
Premises are located shall be taken by public or quasi-public
authority under any power of eminent domain or condemnation, this
Sublease, at the option of the Sublessor, shall forthwith terminate
and the Tenant shall have no claim or interest in or to any award of
damages for such taking.
12. SECURITY DEPOSIT
A. Prior to occupation of the Demised Premises, Sublessee shall furnish
Sublessor a Security Deposit equal to one month's Rent as calculated
under Section 3 A (i) of this Sublease. Such Security Deposit will be
held by the Sublessor for the Term of this Sublease and any extensions
thereof, and may be returned as provided for herein to the Sublessee
upon Sublessee's surrender of the Demised Premises. Should the
Sublessor, upon inspection of the Demised Premises, deem the Demised
Premises to be in good order, the Security Deposit will be returned in
full within 10 business days. Should the Sublessor, upon inspection of
the Demised Premises, deem the Demised Premises to be damaged,
unclean, or to have experienced unreasonable wear and tear during the
Term of this Sublease, the Sublessee will have 60 days to remedy such
damage, uncleanliness, or wear and tear. Failure by the Sublessee to
provide such remedy will result in the return of no portion of the
Security Deposit should the cost of such remedy be in excess of the
Security Deposit. The Security Deposit may be used by the Sublessor to
remedy the Demised Premises after the 60 days has passed. Any unused
portion of the Security Deposit will then be promptly returned to the
Sublessee after such remedies are made.
13. SURRENDER OF DEMISED PREMISES
A. On the last day of the Term or the termination or Extension Period of
this Sublease, Sublessee shall quit and surrender the Demised Premises
vacant, broom clean, in good order, condition and repair.
14. SUBORDINATION
A. This Sublease, at the option of Sublessor or Overlandlord, shall be
subject and subordinate to all present and future underlying leases
(including the Xxxxxxxxx) and all present and future mortgages, in all
amounts and all advances thereon, which may now or hereafter encumber
the Xxxxxxxxx, the Paramus Facility, and/or the Demised Premises, and
to all renewals, replacements, modifications, consolidations and
extensions of any thereof. As a condition to subordination to any
future encumbrance of the Xxxxxxxxx, the holder thereof shall enter
into a non-disturbance agreement with the Sublessee to the effect
that, provided that Sublessee shall not be in default hereunder,
Sublessee will not be named as a defendant in any foreclosure of the
leasehold mortgage and will not be disturbed in its possession or use
of the Demised Premises by the holder of such leasehold mortgage or
purchaser of the Xxxxxxxxx at the foreclosure.
15. CAFETERIA
A. Sublessee shall have a non-exclusive license to use the cafeteria in
the Paramus Facility for its employees and business invitees at
Sublessee's risk and expense on the same terms that the Sublessor's
employees are permitted to use such cafeteria and subject to
compliance with such reasonable rules and regulations as may be
promulgated by Sublessor from time to time regarding the use of the
cafeteria which are applied
uniformly to all and enforced without
discrimination. Nothing herein shall oblige Sublessor to continue to
operate or maintain a cafeteria in the Paramus Facility, and should
the operation of the cafeteria be suspended or discontinued, there
shall be no adjustment to Rent as a result thereof.
B. Sublessee agrees to pay, on a timely basis, a pro rata share of the
cafeteria subsidy. The pro rata shared costs will be based on employee
headcount and will be billed on a monthly basis via invoice by the
Sublessor to the Sublessee.
16. SIGNS
A. No sign, advertisement or notice shall be affixed to or placed upon
any part of the Paramus Facility or the grounds thereon by the
Sublessee, prior to the approval by the Sublessor and Overlandlord.
Such approval shall not be unreasonably withheld or delayed. Any fees
or expenses incurred to affix or maintain an approved sign, including
locally legislated annual sign fees, will be borne by the Sublessee.
At the expiration or termination of this Sublease, and at the cost of
the Sublessee, Sublessee shall cause all such signs to promptly be
removed and Sublessee shall repair any damage caused thereby.
17. RIGHT TO INSPECT
A. The Sublessor shall have the right to enter the Demised Premises at
reasonable hours in the day or night to examine the same to make such
repairs, additions or alterations as it shall deem necessary for the
safety, preservation, restoration of the Paramus Facility or for the
safety or convenience of the occupants or users of the Paramus
Facility, provided that Sublessee receives at least 2 days prior
notice of such entry. Additionally, Sublessor and Overlandlord have
the right to enter the Demised Premises at any time and without notice
in the event that emergency repairs must be made to the Paramus
Facility.
18. BUILDING SECURITY
A. Sublessee recognizes that the Sublessor uses the Paramus Facility as a
research facility, that aspects of such research are highly
confidential, and that Sublessor could sustain severe damage if
disclosure of confidential information were made to unauthorized
parties. Accordingly, Sublessee agrees not to allow or permit its
employees, agents, or invitees to enter portions of the Paramus
Facility other than the Demised Premises and common areas leading to
the cafeteria and restrooms, except as may be authorized by the
Sublessor. In addition, Sublessor may promulgate reasonable security
procedures from time to time regarding the Paramus Facility, and
Sublessee will comply therewith, and instruct its employees, agents
and invitees with respect thereto. Sublessee will use the entrance on
the west side of the Paramus Facility as a means of ingress and
egress. Security codes shall be given to Sublessee and its employees
in order to attain entrance to the building. If the Sublessee or its
employees learns that a person other than
its employees or Sublessor's employees is using a security code,
Sublessee shall immediately report this condition to the Sublessor.
B. Sublessor recognizes that the Sublessee will use the Demised Premises
as a research facility, that aspects of such research are highly
confidential, and that Sublessee could sustain severe damage if
disclosure of confidential information were made to unauthorized
parties. Accordingly, Sublessor agrees not to allow or permit its
employees, agents, or invitees to enter the Demised Premises except in
accordance with Section 18 of this Sublease.
19. PARKING
A. Sublessee, its employees and invitees are granted the non-exclusive
right to use up to 10 parking spaces in the parking lot on the north
side of the Paramus Facility.
20. LOADING
B. Sublessor will allow Sublessee to use loading dock at such times and
to the extent that such use does not unreasonably conflict with
Sublessor's use or the rights of other tenants that may be in the
Paramus Facility.
21. QUIET ENJOYMENT
A. Sublessor covenants and agrees with Sublessee that upon Sublessee's
paying the Rent and observing all of the terms, covenants and
conditions of this Sublease on Sublessee's part to be observed and
performed hereunder, Sublessee may peacefully and quietly enjoy the
Demised Premises, without molestation, hindrance or disturbance.
Sublesee agrees to allow other tenants of the Paramus Facility to
peacefully and quietly enjoy their own premises during the Term of
this Sublease.
22. DEFAULT; SUBLESSOR'S REMEDIES
A. If any one or more of the following events (sometimes called "Events
of Default") shall occur:
(1) If default shall be made in the due and punctual payment of any Rent
payable under this Sublease or any part hereof, when and as the same
shall become due and payable, and such default shall continue for a
period of ten (10) days after such due date and Sublessee fails to
cure such default within two (2) days of receiving a request for
payment of Rent from Sublessor; or
(2) If Sublessee shall violate, breach, fail to observe or to comply with
any of the other agreements, terms, representations, warranties,
covenants or conditions of this
Sublease or of its obligations with
respect to the Xxxxxxxxx ("Default") and shall fail to cure such
Default within thirty (30) days after notice from Sublessor to
Sublessee with respect to a Default under this Sublease or within the
time period permitted in the Xxxxxxxxx, or in the case of a Default or
a contingency which cannot with due diligence be cured within said
thirty day period, if Sublessee fails to proceed within said thirty
day period to cure the same and thereafter to prosecute the curing of
such Default with due diligence until completion it being intended in
connection with a Default not susceptible of being cured with due
diligence within said thirty-day period that the time for cure shall
be extended only for such period as may be reasonably necessary to
complete the same with due diligence); or
(3) If Sublessee shall file a voluntary petition in bankruptcy or shall be
adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or other relief under the present or any
future federal bankruptcy act or any other present or future federal,
state or other bankruptcy or insolvency statute or law, or shall seek
or consent to or acquiesce in the appointment of a receiver, trustee
or liquidator of Sublessee or of all or any substantial part of its
assets; or
(4) If, within thirty (30) days after the commencement of any proceeding
against Sublessee seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or other relief or
any petition filed against Sublessee under the present or any future
federal bankruptcy act or any other present or future federal, state
or other bankruptcy or insolvency statute or law, such proceeding or
petition shall not have been dismissed;
then, and in case of any event
described in the foregoing subsections (1) or (2) of this Section 22,
the Sublessor at any time thereafter may give written notice to
Sublessee specifying such Event or Events of Default and stating that
this Sublease and the term hereby demised shall expire and terminate
on the date specified in such notice, which shall be at least ten (10)
days after the giving of such notice and upon such date, this Sublease
and the term hereby demised and all rights of Sublessee hereunder
shall expire and terminate, and Sublessee shall remain liable as
hereinafter provided. No further notice shall be required in the case
of a default under subsections (3) or (4), in which case this Sublease
shall automatically terminate, and Sublessor shall be entitled to the
maximum allowable claim in any such bankruptcy proceeding.
B. Any bankruptcy or insolvency petition or proceeding referred to in
subsections A (3) or A (4) of this Section 22 shall result in
termination of this Sublease only if the same shall be taken by or
brought against the then holder of the Sublessee's leasehold estate
under this sublease. The provisions of the said subsections are
further subject to any paramount rights of any receiver, trustee,
debtor in possession or other person pursuant to the Federal
Bankruptcy Act, provided that covenants, conditions and provisions
required to be performed by Sublessee hereunder shall continue to be
timely and faithfully performed without interruption.
C. Upon any such termination of this Sublease, the Sublessee shall quit
and peacefully surrender (in accordance with the surrender
requirements of this Sublease) the Demised Premises to Sublessor, and
upon any such termination the Sublessor may, without further notice,
enter upon and re-enter the Demised Premises and possess and repossess
itself thereof, by force, summary proceedings, ejectment or otherwise,
and may dispossess Sublessee and remove it and all persons and
property from the Demised Premises, and may have and hold the Demised
Premises together with the right to receive all rental income and
other revenues of and from the Demised Premises.
D. If this Sublease shall be terminated pursuant to this Section, or by
summary proceedings or otherwise, or if the Demised Premises or any
part thereof shall be abandoned by Sublessee, or shall become vacant
during the Term hereof and Sublessee shall fall in arrears with
respect to payment of Rent, Sublessor may in its own name, or as agent
Sublessee if this Sublease shall not have been terminated, relet the
Demised Premises or any part thereof, for such term or terms (which
may be greater or less than the period which would otherwise have
constituted the balance of the Term of this Sublease) and on such
conditions (which may include concessions or free rent and alterations
of the Demised Premises) as Sublessor in its sole discretion, may
determine; and Sublessor may collect and receive the rents therefor.
Sublessor shall in no way be responsible or liable for any failure or
delay in reletting the Demised Premises or any part thereof or of any
failure to collect any rents due upon such reletting. Sublessor's duty
with respect to mitigation of damages shall be deemed to be fulfilled
by listing (under an exclusive listing which shall not exceed 12
months) the Demised Premises for re-let with a broker who deals with
commercial and/or industrial properties, in the area, and by
negotiating in good faith with prospective tenants introduced by such
broker in accordance with customary leasing practices prevailing at
the time. The foregoing shall not preclude other or alternative means
of mitigating damages.
E. (1) No such termination of this Sublease, or summary proceedings, or
repossession of the Demised Premises shall relieve Sublessee of its
liability and obligations under this Sublease, whether or not the
Demised Premises shall be relet. In any such event, Sublessee shall
pay Sublessor all items of Rent and other charges required to be paid
by Sublessee up to the time of such event; and thereafter:
(i) Sublessee, until the end of the Term or any extension of this
Sublease, or what would have been such Term in the absence of any such event,
shall be liable to Sublessor, as damages for Sublessee's Default, for the
equivalent of the amount of all items of Rent and other charges which would be
payable hereunder by Sublessee if this Sublease were still in effect, less
(without duplication) the net proceeds of any reletting effected pursuant to the
provisions of Section 22D, after deducting all Sublessor's expenses in
connection with taking possession, holding, maintaining, securing, protecting,
insuring, repairing and reletting the Demised Premises, including without
limitation, all repossession costs, an equitably apportioned share of brokerage
commissions, operating expenses, legal expenses, alteration costs and other
expenses of preparation for such reletting;
(ii) Sublessee shall pay all such disbursements for such enumerated
expenses in cash promptly on written demand, and shall pay the deficiencies
between the Rent and other charges which would have been payable under this
sublease if the same were still in have effect and the revenues actually
received by Sublessor, if any, as a result of reletting at the end of each month
as such deficiencies shall arise; and
(iii) At any time after termination of this Sublease pursuant to this
Section 22, in lieu of collecting the monthly deficiencies or any further
monthly deficiencies as aforesaid, Sublessor shall be entitled to recover lump
sum liquidated damages from Sublessee, payable on demand, and calculated in the
following Section 22E(2)
(2) As an alternative to monthly or further monthly deficiency payments
described in the preceding subsection (1) in addition to the immediate
cash payment for all costs and expenses referred to in the said
preceding subsection but giving credit for rental deficiencies
previously paid by Sublessee), Sublessor shall have the right, at its
election, to recover lump sum liquidated damages payable in cash upon
demand, in an amount equal to the difference between the Rent and
other charges reserved in this Sublease scheduled to accrue from the
date of such election to the date of the expiration of the Term, over
the then fair and reasonable rental value of the Demised Premises for
the same period. Said damages shall become due and payable to
Sublessor whether or not this Sublease shall be terminated, and if
terminated, without regard to the manner in which it is terminated. In
the computation of such damages, the difference between any
installment of Rent thereafter becoming due and the and reasonable
rental value of the Demised Premises for the period for which such
installment was payable shall be discounted to present value as of the
date of such election by Sublessor at the rate of ten (10%) percent
per annum. Sublessor's said right of election for lump sum liquidated
damages shall not be barred by Sublessor's prior demand for or receipt
of monthly rental deficiency installments, all of which shall be paid
as provided in the preceding subsection (1) until the time of
Sublessor's election for lump sum liquidated damages, at which time
the latter shall become due and payable based on the remainder of Term
as aforesaid. If the Demised Premises or any part thereof shall have
been relet by Sublessor for the unexpired Term, or part thereof, the
amount of rent reserved upon such reletting shall be deemed to be the
fair and reasonable rental value for the part or the whole of the said
Demised Premises so relet during the term of such reletting. 'Upon
payment of such lump sum liquidated damages this Sublease and
Sublessee's entire estate and rights with respect to the Demised
Premises shall terminate and neither party shall thereafter have any
rights or obligations to xxxxx other thereafter arising hereunder.
(3) Nothing herein contained shall limit or prejudice the right of
Sublessor to prove for and obtain, as liquidated damages or other
lawful damages, an amount equal to the maximum allowed by any statute
or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not
such amount be greater, equal to, or less than the amount of the
damages referred to in this Sublease.
(4) Damages hereunder shall be calculated without duplication of any
amounts required to be paid by Sublessee.
F. Sublessee hereby expressly waives, so far as, permitted by law, the
service of any notice of intention to re-enter provided for in any
statute, and except as herein otherwise provided, Sublessee, for and
on behalf of itself and 'all persons claiming through or under
Sublessee 'including any leasehold, mortgagee or other creditor 'also
waives any and all right of redemption or re-entry or repossession in
case Sublessee shall be dispossessed by a judgment or by warrant of
any court or Judge or in case of re-entry or repossession by Sublessor
or in case of any expiration or termination of this Sublease. The
terms "enter", "re-enter", "entry" and "re-entry" as used in this
Sublease are not restricted to their technical legal meanings.
Sublessee hereby waives its right to plead any counterclaim or offset
in any action or proceeding brought by Sublessor against Sublessee for
non-payment of Rent or default hereunder. The foregoing shall not,
however, be construed as a waiver of Sublessee's right to assert any
claim in a separate action brought by Sublessee.
G. The rights and remedies of Sublessor provided in this Sublease shall
be cumulative and not exclusive, one of the other. In addition to
those stated herein or otherwise available under then current law, the
Sublessor shall be entitled to injunctive relief for any breach or
threatened breach if the Court shall deem such relief to be
appropriate to the circumstances. Any re-entry by Sublessor shall be
allowed peaceably by Sublessee without interference or hindrance and
Sublessor shall not be liable in damages for any such re-entry or
guilty of any trespass. A re-entry or taking of possession of the
Demised Premises by Sublessor shall not be construed as an election on
Sublessor's part to terminate this Sublease unless a notice of such
termination intention is given to Sublessee or unless the termination
of this Sublease is decreed by a court of competent jurisdiction.
H. If Sublessor shall engage counsel to collect any Rent or other charges
or to otherwise enforce any rights or remedies hereunder, Sublessee
shall be liable for payment or reimbursement of such counsel's
reasonable fees and for all costs and disbursements.
23. OPTION TO RENT ADDITIONAL SPACE
A. Sublessor grants Sublessee the right of first refusal to rent an
additional 2,500 contiguous square feet of space (the "Additional
Space") as shown on Schedule C attached hereto, on the same terms,
costs and conditions as set forth in this Sublease. Sublessee agrees
to inform Sublessor of its intention to rent the Additional Space in
writing no later than 60 days prior to Sublessee's anticipated
occupation of such Additional Space. Sublessor agrees to inform
Sublessee in writing within 10 days of its intention to meet with a
third party with the purpose of subletting the Additional Space to
same third party.
B. The Additional Space may not be occupied in any way or used for any
purpose by the Sublessee without the written approval of the
Sublessor. Any such occupation would be considered a breach under
Section 21 of this Sublease.
24. GENERAL PROVISIONS
A. NO PARTNERSHIP: Neither party hereto shall be deemed, in any way or
for any purpose, to have become, by the execution of this Sublease or
any action taken hereunder, a partner of the other party in its
business or otherwise or a joint venturer or a member of any joint
enterprise with such other party.
B. GOVERNING LAW: This Sublease shall be governed exclusively by the
provisions hereof and by the laws of the State of New Jersey.
C. BINDING EFFECT: The terms and provisions of this Sublease shall be
binding upon and shall inure to the benefit of Sublessor and Sublessee
and their respective successors, assigns, heirs, administrators,
executors and personal representatives, if any. Nothing in this
Subsection shall be deemed to authorize or permit any assignment or
other transfer, in whole or in part, of the interest of Sublessee in
violation of any other provisions contained in this Sublease. However,
any person or entity occupying the Demised Premises or any portion
thereof as a result of any such assignment or transfer in violation of
the provisions of this Sublease shall be bound by all the obligations
of Sublessee hereunder, but shall not be entitled to any of the
benefits of Sublessee hereunder.
D. ESTOPPEL LETTERS: At any time and from time to time, within ten (10)
days after request by either party (the "Requesting Party") and
without charge the party receiving such request (the "Other Party")
shall execute, acknowledge and deliver to the Requesting Party or to
its designee, a statement in writing stating (1) that this Sublease is
unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as so
modified); (2) the Commencement Date and the Expiration Date; (3) that
all conditions to be performed by the Requesting Party hereunder have
been performed, or stating those claimed by the Other Party not to
have been performed; (4) that there are no defenses or offsets against
the Requesting Party, or stating those claimed; (5) that the
obligation for the payment of Rent has commenced and stating the
date(s) to which Rent and other charges have been paid in advance, if
any, and (6) such other reasonable and relevant matters requested by
the Requesting Party relating to this Sublease. It is intended that
any such statement may be relied upon by any prospective purchaser of
the fee or any leasehold, or any mortgagee, or any assignee of any
thereof, under any conveyance, assignment or mortgage now or hereafter
made or to be made with respect to the fee , the Xxxxxxxxx or any
other leaseholder or interest in the Paramus Facility or the Demised
Premises.
E. NO WAIVER: The failure of Sublessor or Sublessee to insist in any one
or more cases upon the performance of any of the provisions,
covenants, agreements or conditions of this Sublease or to exercise
any option herein contained shall not be
construed as a waiver or a
relinquishment for the future of any such provision, covenant,
agreement, condition or option or of any other payment or the
acceptance by Sublessor of performance of anything required by this
Sublease to be performed by Sublessor with or without knowledge of the
breach of a covenant shall not be deemed a waiver of such breach. No
waiver of any provision, covenant, agreement or condition of this
Sublease shall be deemed to have been made unless expressed in writing
and signed by the party against whom such waiver is charged.
F. MODIFICATION IN WRITING: This Sublease may not be changed orally, but
only by an agreement in writing signed by the party against whom
enforcement of any change, modification or discharge is sought.
G. ENTIRE AGREEMENT: There are no oral agreements between the parties
hereto affecting this Sublease, and, this Sublease supersedes and
cancels any and all previous negotiations, arrangements, agreements
and undertakings, if any, between the parties hereto with respect to
the subject matter hereof, and none thereof shall be used to interpret
or construe this Sublease.
Synaptic Pharmaceutical Corporation
(Sublessor)
By:/s/ Xxxxxx X. Xxxxxx
-----------------------------
Linguagen Corporation
(Sublessee)
By:/s/ Xxxxxxx X. Xxxxxx
---------------------------
Schedule A - The Xxxxxxxxx
Sublease Agreement dated October 31, 1991 by and between Playtex
Apparel, Inc., as landlord, and Neurogenetic Corporation, as tenant.
First Sublease Amendment between Playtex apparel, Inc.(the "Sublessor")
and Synaptic Pharmaceutical Corporation (as Successor to Neurogenetic Corp.)
(the "Sublessee") 000 Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the "Demised
Premises")
Agreement Between Century Associate ("Century") and Synaptic
Pharmaceutical Corporation
First Amendment to Lease dated as of November 25, 1998 by and between
ARE-215 College Road, LLC ("Landlord"), and Synaptic Pharmaceutical Corporation,
("Tenant")
Schedule B Demised Premises [GRAPHIC OMITTED]
Schedule C Additional Space [GRAPHIC OMITTED]
