EXHIBIT 10.3
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THIS AGREEMENT (the "Lease"), made the day of , 2001, by and between
XXXXXXX MONTROSE, L.L.C., a New Jersey Limited Liability Company, c/o Adler
Development, LLC, 000 Xxxxxxx Xxxxxx Xxxxxxx, Xxxx 00, Xxxxxx, Xxx Xxxxxx 00000,
hereinafter called "Landlord"; and ABLE LABORATORIES, a Delaware Corporation,
about to have an office at 0000 Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx
00000, hereinafter called "Tenant".
W I T N E S S E T H:
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WHEREAS, Landlord owns certain lands and premises in the Borough of South
Plainfield, County of Middlesex and State of New Jersey, which said lands and
premises are commonly known as 0000 Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxx (the
"Property"), all as more particularly referred to and described by metes and
bounds on Schedule "A" annexed hereto and made a part hereof; and
WHEREAS, Landlord has erected a one-story industrial-type building
containing approximately 59,740 square feet (hereinafter called the "Building")
on the lands and premises aforementioned, of which Building Tenant shall occupy
approximately 21,980 square feet, outside outside dimensions to center line of
common wall (hereinafter called the "Leased Premises"), all in accordance with
the terms and conditions hereinafter mentioned and the considerations herein
expressed; and
WHEREAS, the Property and the Building are part of a larger complex (the
"Complex") which is owned by Landlord, it being understood that Tenant shall be
responsible for Tenant's pro rata portion of common maintenance items allocated
to the Property and the Building,
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for the rents
reserved, the mutual considerations herein and the parties mutually intending to
be legally bound hereby, Landlord does demise, lease and let unto Tenant and
Tenant does rent and take from Landlord the Leased Premises as described in
Paragraph #1, and Landlord and Tenant do hereby mutually covenant and agree as
follows:
1. LEASED PREMISES
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1.1 The Leased Premises shall consist of approximately 21,980 square
feet of the Building, based on outside outside dimensions to center line of
common wall, as said Building is located on the lands described on Schedule "A",
together with
all improvements therein which have been constructed by Landlord for the use of
Tenant, and together with all easements, improvements, tenements, appurtenances,
hereditaments, fixtures and rights and privileges appurtenant thereto including,
without limitation, the non-exclusive right to use the parking areas, walkways
and driveways located on the Property. The Leased Premises are shown on the
floor plan annexed hereto and made a part hereof as Schedule "B".
1.2 It is understood and agreed between Landlord and Tenant that:
(a) access to public streets is provided by a common access easement
along the southerly boundary of the Property;
(b) there is a common grassed mall area to be shared by the occupants
of the Building and the buildings to the south and east of the
Building; and
(c) there are common utility lines.
The Lease shall be together with and subject to the easements for the same,
which shall be non-exclusive and which shall be shared by other tenants located
in the Complex, which common use shall not interfere with Tenant's reasonable
use and occupancy of the Leased Premises. Any one or more of the aforesaid
easements may be recorded and amended of record to effectuate the purposes for
which they are created as long as they do not interfere with Tenant's use and
enjoyment of the Leased Premises. Tenant expressly covenants and agrees that it
shall have no right to erect any fence or barrier between any of the easements
or affecting the same as hereinabove referred to.
1.3 Tenant's Percentage, for all Lease purposes, is hereby deemed to
be 36.8%.
2. TERM OF LEASE
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2.1 Landlord leases unto Tenant and Tenant hires the Leased Premises
for the term of three (3) years (the "Term"), to commence on October 1, 2001
(the "Commencement Date"), subject to the provisions of Article 2.2 hereof.
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2.2 The Commencement Date shall be October 1, 2001, whether or not the
work to be performed by Landlord in accordance with Article 4.1 has been
completed. Notwithstanding the above, the Base Rent and Additional Rent payable
hereunder shall xxxxx in the event that Landlord shall not paint and recarpet
(provided that Landlord shall have the right to substitute for carpeting which
has been chosen by Tenant carpeting of equal quality and standard, provided in
the event that the carpeting chosen by Tenant is not in stock) the Leased
Premises within ten (10) business days following the date of execution of this
Lease, until such work is completed. In any event, Tenant shall have the right
to use and occupy the warehouse area of the Leased Premises as of October 1,
2001. The last day of the Term shall be called the "Expiration Date".
2.3 Tenant agrees that it will execute, within ten (10) days of
Landlord's request therefor, an estoppel letter as may be required by Landlord's
mortgagee from time to time, certifying among other things the Commencement Date
and Expiration Date of the Lease, status of current rent payments by Tenant, and
any other pertinent information as may be reasonably required by such mortgagee.
3. RENT
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3.1 The Tenant covenants and agrees to pay the annual rent
(hereinafter called "Base Rent") as follows:
(a) During the first (1st) year of the lease term, Tenant shall pay
Base Rent at the rate of ONE HUNDRED NINE THOUSAND NINE HUNDRED AND 00/100
($109,900.00) DOLLARS per annum, payable in equal installments in the sum of
NINE THOUSAND ONE HUNDRED FIFTY EIGHT AND 33/100 ($9,158.33) DOLLARS per month.
(b) During the second (2nd) year of the lease term, Tenant shall pay
Base Rent at the rate of ONE HUNDRED EIGHTEEN THOUSAND SIX HUNDRED NINETY TWO
AND 00/100 ($118,692.00) DOLLARS per annum, payable in equal installments in the
sum of NINE THOUSAND EIGHT HUNDRED NINETY ONE AND 00/100 ($9,891.00) DOLLARS per
month.
(c) During the third (3rd) year of the lease term, Tenant shall pay
Base Rent at the rate of ONE HUNDRED TWENTY SEVEN THOUSAND FOUR HUNDRED EIGHTY
FOUR AND 00/100 ($127,484.00) DOLLARS per annum, payable in equal installments
in the sum of TEN THOUSAND SIX HUNDRED TWENTY THREE AND 67/100 ($10,623.67)
DOLLARS per month.
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(d) The Base Rent shall be payable on the first day of each and every
month during the Term (except that the first installment of Base Rent payable
hereunder shall be paid on the execution of the Lease).
3.2 (i) All sums payable by Tenant pursuant to the Lease, except for
Base Rent, shall be Additional Rent. Tenant shall reimburse Landlord for
Tenant's Percentage of Landlord's total expense incurred in operating, managing,
maintaining, repairing and replacing the Property including, but not limited to,
the following items:
(a) real estate taxes (Article 8);
(b) the cost of maintenance, repair and replacement
services, including management fees (Article 6);
(c) utility charges (Article 7); and
(d) insurance carried by Landlord (Article 9).
All Additional Rent payments by Tenant shall be received by Landlord within
thirty (30) days of receipt by Tenant of Landlord's invoice therefore, except
for real estate taxes, which shall be paid with the Base Rent, as set forth in
Article 8. All invoices delivered to Tenant shall contain a breakdown of the
required charges and backup invoices or documentation.
(ii) Landlord shall make a reasonable estimate of the Additional
Rent which will be required during the period from September 1 through the
following August 31 (an "Operating Year"), for each Operating Year occurring
during the Term. Landlord shall furnish such estimate to Tenant and Tenant shall
pay to Landlord one-twelfth (1/12) of the estimated Additional Rent for such
Operating Year during each month of said Operating Year, as Additional Rent. At
the expiration of the first Operating Year, Landlord shall furnish to Tenant a
breakdown, certified by Landlord, as to the total cost of required Additional
Rent for such Operating Year. In the event that the estimated Additional Rent
payments made by Tenant shall be less than the actual Additional Rent required
for such Operating Year, Tenant shall pay to Landlord, in one (1) lump sum, any
difference in such obligation, said sum to be paid within thirty (30) days after
demand. In the event the actual Additional Rent applicable to such Operating
Year shall be less than the estimated Additional Rent payments made by Tenant,
any such overage shall be applied to the monthly Base Rent
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and Additional Rent charges prospectively due under the lease. This procedure
shall be followed during each Operating Year of the Term, and at the Expiration
Date, any overage or underage shall be credited or paid after computation by
Landlord, which obligation of Landlord and Tenant shall survive the expiration
of the Term. In the event that any item of Additional Rent has not been included
in Landlord's estimate, Landlord shall have the right to xxxx Tenant for any
such cost, and Tenant shall pay to Landlord the invoiced amount within thirty
(30) days after demand.
In addition to the aforementioned items, Additional Rent shall also include any
payments required of Tenant pursuant to Articles 3.3, 11.2, 13.4, and 40.4, as
well as all other items required to be paid by Tenant by the Lease.
3.3 Any installment of Base Rent accruing hereunder which is not
received by Landlord prior to the fifth (5th) day of any month (including
Saturdays, Sundays and Holidays), or any Additional Rent which is not received
by Landlord within thirty (30) days of Tenant's receipt of Landlord's invoice
therefor (Base Rent and Additional Rent being sometimes collectively referred to
herein as "rent"), shall bear a late charge of ten (10%) per cent of such
amount, which amount shall be payable as Additional Rent hereunder, and the
failure to pay such charge shall be a default by Tenant hereunder. It is
expressly understood and agreed that the foregoing late charge is not a penalty,
but agreed upon compensation to Landlord for administrative costs incurred by
Landlord in connection with any such late payment. In addition, any payment of
Base Rent or Additional Rent which is not paid within thirty (30) days of the
date upon which it is due shall require the payment of interest at the rate of
one and one-half (1 1/2%) percent per month, calculated from the date that such
payment was due through the date that any such payment is actually made.
3.4 If the term of this Lease shall begin or end on a day other than
the first or last day of a calendar month, as applicable, the rent for such
partial month shall be prorated.
3.5 It is expressly understood and agreed that upon execution of the
within Lease Tenant shall pay the first (1st) monthly installment of Base Rent
and real estate taxes payable hereunder, together with the security deposit
which is hereinafter referred to.
4. CONDITION OF LEASED PREMISES
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4.1 Tenant shall take the Leased Premises and improvements as of the
Commencement Date of this Lease in an "as is" condition, except that Landlord
shall recarpet and repaint the office area of the Leased Premises, using
building standard materials. Landlord, at Tenant's sole expense, will install
air conditioning in the warehouse pursuant to Tenant's specifications,
subsequent to the Commencement Date.
4.2 It is expressly understood and agreed that Tenant shall be
responsible to obtain a Certificate of Occupancy permitting Tenant's use and
occupancy of the Leased Premises in accordance with Article 5 hereof.
5. USE
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5.1 Tenant covenants and agrees to use and occupy the Leased Premises
for office and warehouse purposes only, which use by Tenant, however, is and
shall be expressly subject to all applicable zoning ordinances, rules and
regulations of any governmental boards or bureaus having jurisdiction thereof.
5.2 The Leased Premises shall not be used for the storage of
flammable, hazardous or toxic materials and that Tenant is expressly prohibited
from using the Leased Premises for manufacturing purposes.
6. REPAIRS AND MAINTENANCE
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6.1 Landlord, shall, with due diligence, at its own cost and expense
(without reimbursement from Tenant), make all structural repairs to the exterior
walls, structural steel, foundation and roof of the Building, provided that any
damage to the foregoing is not caused by the negligence of Tenant, its servants,
employees, invitees or agents, in which case said damage shall be repaired at
the sole cost and expense of Tenant, except to the extent covered by any
insurance maintained for the Building and/or Leased Premises. Landlord shall,
subject to reimbursement as described in the following sentence, undertake the
maintenance of the roof and the maintenance, repair and replacement of the roof
leaders, flashings, metal gravel stops, gutters and drains; Tenant shall
reimburse Landlord within fifteen (15) days after written demand for Tenant's
Percentage of any cost attributable to the foregoing. Landlord shall be
responsible, at its sole cost and expense, for the repair and replacement of the
roof if the same shall become necessary at any time during the Term of the
Lease.
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6.2 Tenant shall, except as provided in Articles 6.1 and 6.3, take
good care of the Leased Premises and, at its cost and expense, keep and maintain
in good repair the interior and exterior of the Leased Premises, including, but
not limited to the floor, loading docks, windows and doors, the air-conditioning
and heating plant, the plumbing, pipes and fixtures belonging thereto; and shall
replace all mechanical systems and working parts used in connection with the
air-conditioning, electrical, heating and plumbing plants, fixtures and systems
exclusively serving the Leased Premises, including ballasts and fluorescent
fixtures; and shall keep the water and sewer pipes and connections free from ice
and other obstructions, and shall generally maintain and repair the interior and
exterior of the Leased Premises and shall, at the end of the expiration of the
term, deliver up the Leased Premises in good order and condition, damages by the
elements, ordinary wear and tear, damage by fire and other casualty and taking
by eminent domain excepted. Tenant expressly agrees that it shall enter into a
periodic maintenance agreement with a reputable heating, ventilating and
air-conditioning contractor, which contract shall provide for a minimum of four
(4) inspections per year. A copy of said contract shall be forwarded to Landlord
when received and thereafter on an annual basis, and a copy of each inspection
report shall be delivered to Landlord within ten (10) days of receipt thereof by
Tenant. Tenant covenants and agrees that it shall not cause or permit any waste
(other than reasonable wear and tear), damage or disfigurement to the Leased
Premises, or any overloading of the floors of the Building.
6.3 Tenant shall reimburse Landlord for Tenant's Percentage of
Landlord's total expense in maintaining, repairing and replacing the lawns,
shrubbery, driveways and parking areas (including snow removal from the parking
area) of the entire Property; which said sum shall be paid by Tenant to Landlord
within fifteen (15) days from the date of billing and Landlord shall supply to
Tenant a complete breakdown of the cost items. In addition to the above, Tenant
shall pay Landlord a management fee in the amount of three (3%) percent of
Tenant's Base Rent payments. Tenant shall, at its sole cost and expense, keep
the sidewalks and steps adjacent to the Leased Premises free and clear of ice,
snow and debris.
6.4 Tenant expressly understands that the cost of maintaining the
landscaping, driveways and parking areas, utility lines and storm sewer systems
serving the Complex shall be allocated to the Building and the other buildings
located on the
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Complex based upon the benefits that each of the buildings enjoys, and that
Tenant's pro rata obligation as hereinabove set forth in Article 6.3 shall be
based upon such an allocation.
6.5 Tenant acknowledges that Landlord has installed a lawn sprinkler
system serving the Property. Tenant agrees to pay to Landlord Tenant's
Percentage of Landlord's cost of maintaining and operating said water sprinkler
system, which cost shall be paid in the same manner as hereinafter provided in
Article 7.
7. UTILITIES
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Tenant shall, at its own cost and expense, pay all utility meter and
service charges (which are separately metered), including gas and electric
charges, janitorial and garbage disposal service. Tenant shall pay to Landlord,
as Additional Rent, Tenant's Percentage of Landlord's cost and expense for
sewer, ordinary water usage, parking lot lighting and lawn sprinkler charges, as
well as 13.3% of the standby sprinkler charges applicable to the Complex (which
standby sprinkler charges are currently EIGHT HUNDRED SEVENTY FIVE AND 88/100
($875.88) DOLLARS per quarter, as set forth on Schedule "C"), within fifteen
(15) days from the date of billing, and Landlord shall supply to Tenant at its
request a complete breakdown of such cost items.
8. TAXES
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8.1 Tenant shall, during the term of the Lease, promptly pay monthly,
as Additional Rent, one-twelfth (1/12th) of Tenant's Percentage of all real
estate and personal property taxes assessed against the Property for land,
Building and improvements, including such added assessment or omitted assessment
which may be levied against the Property for the year 2001, et seq., by the
applicable governmental taxing authority, said obligation to be prorated as of
the Commencement Date and as of the Expiration Date hereof, as applicable. In
addition, Tenant shall, during the term of this Lease, pay at its cost and
expense Tenant's Percentage of any levy for the installation of local
improvements affecting the Property as may be assessed by any governmental
boards or bureaus having jurisdiction thereof. Any assessment or imposition for
capital or public improvements which shall be payable by law at the option of
the taxpayer in installments, may be so paid by Tenant in installments, as to
its pro rata portion thereof, together with any required interest. The real
estate tax obligation of Tenant hereinabove set forth shall include Tenant's
Percentage, if levied, of any tax or imposition which may be levied by any
governmental authority, agency or subdivision thereof having jurisdiction
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applicable to parking lot usage. Landlord shall furnish to Tenant the annual
real estate tax xxxx and a breakdown of Tenant's Percentage thereof. In the
event of any change in real estate taxes which shall require an adjustment of
increase or decrease in Tenant's annual tax obligation, such difference shall be
adjusted by Landlord and Tenant annually during the month of August of each
Lease year, or as soon thereafter as is reasonably practicable.
8.2 In the event Landlord wishes to contest any assessment or levy of
taxes on the Property, it is understood and agreed that said contest may include
other real property owned by Landlord. In the event of any reduction or rebate
of taxes which is paid to Landlord, Tenant shall be credited with its pro rata
portion thereof, after deducting the costs and expenses incurred by Landlord in
contesting or litigating said assessment, provided that Tenant has previously
paid a portion of the taxes being rebated. Tenant shall have no right to file
any tax appeal affecting the Property. Landlord hereby agrees that it shall make
a bona fide determination, on an annual basis, as to the advisability of filing
a tax appeal.
8.3 If at any time during the term of this Lease the method or scope
of taxation prevailing at the commencement of the Lease term shall be altered,
modified or enlarged so as to cause the method of taxation to be changed, in
whole or in part, so that in substitution for the real estate taxes now assessed
there may be, in whole or in part, a capital levy or other imposition based on
the value of the Property, or the rents received therefrom, or some other form
of assessment based in whole or in part on some other valuation of the Property,
then and in such event, such substituted tax or imposition shall be payable and
discharged by Tenant pro rata in the manner required pursuant to such law
promulgated, which shall authorize such change in the scope of taxation, and as
required by the terms and conditions of the within Lease.
8.4 Nothing in this Lease contained shall require Tenant to pay any
franchise, estate, inheritance, succession, capital levy or transfer tax of
Landlord, or Federal Income Tax, State Income Tax, or excess profits or revenue
tax, unless such taxes are in substitution for real property taxes as a result
of such change in the manner and scope of taxation as hereinbefore provided in
Article 8.3.
9. INSURANCE
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9.1 Landlord will, subject to the reimbursement as described below,
obtain for the benefit of Landlord, wherein Landlord shall be the named insured,
fire insurance on an "all risk" basis, including flood and earthquake insurance
(if obtainable) in an amount and value equivalent to the full replacement value
of all the insurable improvements located on the Property, which policy of
insurance shall include broad form boiler and machinery coverage (inclusive of
air-conditioning system, if requested by Tenant in writing) together with
insurance coverage against sprinkler damage to the Building and its
improvements. Said insurance, in any event, shall not be less than the amount of
any first mortgage which may be placed on the Property by Landlord and shall be
in such form as any such bona fide mortgagee may reasonably require. Landlord
shall have the right from time to time to determine the full replacement value
as may be required to comply with full replacement insurance requirements. The
insurance to be obtained by Landlord shall include casualty rent insurance
payable to and insuring the interest of Landlord as to the value of the rental
obligation hereunder to the extent of one (1) year's Rent, (inclusive of real
estate taxes and applicable insurance premiums). Landlord and Tenant agree that
the fire and casualty insurance policy to be obtained by Landlord shall contain
a deductible provision in the amount of TWO THOUSAND FIVE HUNDRED AND 00/100
($2,500.00) DOLLARS, or such higher amount as may be imposed by Landlord's
insurance carrier. In the event of fire or casualty as contemplated by Article
14 hereof, Tenant expressly agrees that it shall pay to Landlord a sum equal to
an amount up to Tenant's pro rata portion of said deductible amount, within
thirty (30) days after demand, to cover such loss or damage, based upon that
portion of the Leased Premises which is damaged as compared to all of the
premises in the Building which are damaged, or the full deductible amount if the
loss is limited to all or a portion of the Leased Premises.
9.2 Tenant covenants and agrees that it will, at its sole cost and
expense, carry general public liability insurance in the minimum amount of FIVE
MILLION AND 00/100 ($5,000,000.00) DOLLARS, combined single limit for personal
injury and property damage. Tenant's liability insurance policy shall (i) name
as additional insureds Landlord and Landlord's mortgagees of whom Landlord shall
have given Tenant written notice, provided that Landlord and Landlord's
mortgagees shall only be insured as their interests may appear under this Lease,
and (ii) be written on a form reasonably satisfactory to Landlord by a good and
solvent insurance company of recognized standing, admitted to do business
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in the State of New Jersey having an A-7 rating or better by AM Best. Tenant
shall furnish to Landlord a certificate of said liability insurance on the
Commencement Date hereunder and shall provide update certificates of said
insurance upon the renewal of any such policy.
9.3 Landlord shall obtain liability insurance applicable to the
Property, which policy shall have the same coverage as hereinabove provided in
Article 9.2.
9.4 It is expressly understood and agreed that all policies of
insurance shall contain a clause that the same shall not be canceled except on
thirty (30) days' written notice to any and all parties in interest.
9.5 Each party, in connection with insurance policies required to be
furnished in accordance with the terms and conditions of this Lease, or in
connection with insurance policies which they obtain insuring such insurable
interest as Landlord or Tenant may have in its own properties, whether personal
or real, shall expressly waive any right of subrogation on the part of the
insurer against Landlord or Tenant as the same may be applicable, which right to
the extent not prohibited or violative of any such policy is hereby expressly
waived, and Landlord and Tenant each mutually waive all right of recovery
against each other, their agents, or employees for any loss, damage or injury of
any nature whatsoever to property or person for which either party is required
by this Lease to carry insurance.
9.6 Tenant shall pay to Landlord Tenant's Percentage of the cost of
all insurance to be carried by Landlord hereunder, except Tenant shall pay the
full premium for casualty rent insurance attributable to Tenant's Leased
Premises, which payment shall be made by Tenant to Landlord within fifteen (15)
days after written demand, said demand to include a copy of the insurance
premium xxxx and Certificate of Insurance, together with a computation of
Tenant's monetary obligations in connection therewith.
9.7 In the event the use by Tenant of the Leased Premises shall cause
an increase in insurance premiums solely due to the use and conduct of Tenant's
business and occupancy of the Leased Premises, then and in that event, Tenant
shall pay at its cost and expense, within fifteen (15) days after written
demand, such excess premium costs. Landlord shall furnish to Tenant such
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collaborating data as may be required to establish the basis for such additional
premium charge.
10. SIGNS
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Tenant, at its sole cost and expense, shall have the right and
privilege of erecting at the Leased Premises such signs as are necessary or
desirable for the purpose of identifying Tenant, subject to the prior written
approval thereof by Landlord, which approval shall not be unreasonably withheld.
Landlord further agrees that it shall install a directory sign near the street,
at Tenant's sole cost and expense, subject to municipal approval. The said signs
shall comply with the applicable rules and regulations of the applicable
governmental boards and bureaus having jurisdiction thereof. The erection of
such sign shall not cause any structural damage to the Building. It is expressly
understood and agreed that Tenant shall not erect roof signs. Tenant hereby
agrees that it shall remove all of its signage upon the expiration or earlier
termination of this Lease, and Tenant shall restore any portion of the Leased
Premises, the Building or the Property which is damaged by the removal of any
such sign.
11. FIXTURES
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11.1 Tenant is given the right and privilege of installing and
removing property, equipment and fixtures in the Leased Premises during the term
of the Lease. However, if Tenant is in default and moves out, or is
dispossessed, and fails to remove any property, equipment and fixtures or other
property prior to any such dispossession or removal, then and in that event, the
said property, equipment and fixtures or other property shall be deemed at the
option of Landlord to be abandoned; or in lieu thereof, at Landlord's option,
Landlord may remove such property and charge the reasonable cost and expense of
removal and storage or disposal of the same to Tenant.
11.2 Anything to the contrary contained herein notwithstanding, it is
expressly understood and agreed that Tenant may install, connect and operate
equipment as may be deemed necessary by Tenant for its business, subject to
compliance with applicable rules and regulations of governmental boards and
bureaus having jurisdiction thereof. Subject to the terms and conditions of this
Lease, the machinery, fixtures and equipment belonging to Tenant shall at all
times be considered and intended to be personal property of Tenant, and not part
of the realty, and subject to removal by Tenant, provided at the time of such
removal, that Tenant is not in default pursuant to the terms and conditions of
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this Lease, and that Tenant, at its own cost and expense, pays for any damage to
the Leased Premises and the Building caused by such removal.
12. GLASS
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Tenant expressly covenants and agrees to replace any broken glass in
the windows or other apertures of the Leased Premises which may become damaged
or destroyed, at Tenant's sole cost and expense.
13. ASSIGNMENT AND SUBLETTING
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13.1 Tenant shall neither assign this Lease nor sublet all or any
portion of the Leased Premises without Landlord's prior written consent, which
consent shall not be unreasonably withheld, subject to Landlord's rights
hereinafter provided in Article 13.4. Landlord may withhold such consent if, in
the reasonable exercise of its judgment, it determines that any of the following
enumerated conditions are applicable:
(a) the proposed assignee's or subtenant's financial condition is not
sufficient to meet its obligations undertaken in such assignment or
sublease;
(b) the proposed use of the Leased Premises is not appropriate for the
Building or in keeping with the character of its existing tenancies;
(c) such assignee's or subtenant's occupancy will cause an excessive
density of traffic or make excessive demands on the Building's services,
maintenance or facilities;
(d) such assignee or subtenant is a tenant of and is vacating premises
in the Building or the Complex;
(e) the rental obligation of such assignee or subtenant would be less
than that which Landlord is then offering to other tenants or potential
tenants of the Complex;
(f) Landlord wishes to accept the offer as provided in Article 13.4.
13.2 Any request by Tenant for Landlord's consent to an assignment of
the Lease shall state the proposed assignee's address and be accompanied by a
profit and loss and balance statements of the proposed assignee for the prior
three (3) years,
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as well as duplicate original of the instrument of assignment (wherein the
assignee assumes, jointly and severally with Tenant, the performance of Tenant's
obligations hereunder).
13.3 Any request by Tenant for Landlord's consent to a sublease shall
state the proposed subtenant's address and be accompanied by profit and loss and
balance statements of the proposed subtenant for the prior three (3) years, as
well as a duplicate original of the instrument of sublease (wherein Tenant and
the proposed subtenant agree that such sublease is subject to the Lease and such
subtenant agrees that, if the Lease is terminated because of Tenant's default,
such subtenant shall, at Landlord's option, attorn to Landlord).
13.4 Any request by Tenant for Landlord's consent to an assignment of
the Lease or a sublease of all or substantially all of the Leased Premises shall
clearly set forth the proposed terms of such proposed assignment or sublease and
shall constitute Tenant's offer to cancel the Lease. Landlord may accept such
offer by notice to Tenant within thirty (30) days after Landlord's receipt
thereof, in which event, the Lease shall terminate as of the end of the month
following the month in which such notice is sent (with the same effect as if
such date were the date fixed herein for the natural expiration of the term),
Base Rent and Additional Rent shall be apportioned to such date, Tenant shall
surrender the Leased Premises on such date as herein provided, and subject to
payment of required Lease adjustments, the parties shall thereafter have no
further liability one to the other. If Landlord fails to send such notice,
Tenant, within twenty (20) days after the expiration of such thirty (30) day
period, may assign the Lease or sublet all or substantially all of the Leased
Premises to the proposed assignee or subtenant and upon the terms specified in
such request, subject, however, to Landlord's rights under Article 13.1(a)
through (e). In any event, Tenant shall pay to Landlord, as Additional Rent, all
amounts received by Tenant from the assignee or subtenant in excess of the Base
Rent and Additional Rent payable by Tenant hereunder, after first deducting
therefrom the reasonable advertising costs, real estate brokerage commissions
and legal fees incurred by Tenant in connection with such assignment or
subletting.
13.5 In the event of a permitted assignment, Landlord may collect Base
Rent and Additional Rent directly from the assignee. In the event of a permitted
sublease, Landlord may, if Tenant defaults hereunder, collect Base Rent and
Additional Rent
14
directly from the subtenant. In either such event, Landlord may apply any
amounts so collected to the Base Rent and Additional Rent hereunder without
thereby waiving any provisions hereof or releasing Tenant from liability for the
performance of its obligations hereunder.
13.6 Landlord's consent to any assignment or sublease hereunder shall
not be deemed a consent to any further proposed assignment or sublease by Tenant
or any one claiming under or through Tenant, except in accordance with this
Article 13.
13.7 It is expressly understood and agreed that Tenant's Option to
Renew, as hereinafter set forth in Article 49, shall be personal to Tenant only,
and may not be exercised by any permitted assignee or subtenant hereunder.
13.8 As an express inducement to Landlord to enter into the within
Lease, it is understood and agreed that in no event shall the Lease be assigned
or the Leased Premises be sublet for any use other than that permitted to
Tenant, or for any use including the storage of flammable liquids, or hazardous
or toxic substances, without Landlord's prior written approval, which approval
Landlord may withhold in its sole and absolute discretion.
13.9 Notwithstanding the foregoing, Landlord's consent shall not be
required for any assignment or subletting to an entity controlling, controlled
by, for in common control with Tenant, nor to any entity that succeeds to
Tenant's interest in this Lease by reason of merger, sale/acquisition (whether
by reason of the sale/acquisition of all or substantially all of the stock or
assets of Tenant), consolidation or reorganization; provided, however, with
respect to an assignment or a sublease of all or substantially all of the Leased
Premises, such successor entity shall have a net worth comparable to Tenant as
of the date of such assignment and/or sublease or as of the date of execution of
this Lease, whichever is greater.
14. FIRE AND CASUALTY
-----------------
14.1 In case of any damage to or destruction of the Building or the
Leased Premises by fire or other casualty occurring during the term of this
Lease which is not covered by the insurance required to be carried by Article
9.1, or which cannot be repaired within two hundred ten (210) days from the
happening of such casualty, or in the event that less than three (3) months will
remain in the Term (inclusive of any exercised renewal options)
15
upon completion of such repair, then, in such event, the term hereby created
shall, at the option of either party, upon written notice to the other by
certified mail, return receipt requested, within thirty (30) days of such fire
or casualty, cease and become null and void from the date of such destruction or
damage. Landlord shall notify Tenant within thirty (30) days from the happening
of such fire or casualty as to whether or not the Leased Premises can be
restored within the aforementioned two hundred ten (210) day period. However, if
neither party shall elect to cancel this Lease within the thirty (30) day period
hereinabove provided, Landlord shall thereupon repair and restore the Leased
Premises with reasonable speed and dispatch, and the rent shall not be accrued
after said damage or while the repairs and restorations are being made, but
shall recommence immediately after said Leased Premises are restored. Anything
in this Article 14 to the contrary notwithstanding, it is expressly understood
and agreed that Landlord shall be obligated to restore the Leased Premises only
to the extent of such cost as will be equivalent to the proceeds received by
Landlord pursuant to the fire insurance coverage to be provided to Landlord as
in Article 9 provided. If the insurance proceeds are not sufficient to restore
the Leased Premises to substantially the same condition which they were in prior
to the casualty, then Landlord shall have a period of thirty (30) days within
which to determine whether to terminate the term hereby created unless Landlord
and Tenant shall mutually agree to the funding of any such excess construction
costs. In the event of cancellation in accordance with this Article, Tenant
shall immediately surrender the Leased Premises and Tenant's interest in said
Lease to Landlord, and Tenant shall only pay rent to the time of such
destruction or damage, in which event, Landlord may re-enter and repossess the
Leased Premises thus discharged from this Lease and may remove all parties
therefrom.
14.2 In the event of any other insured casualty, which shall be
repairable within two hundred ten (210) days from the happening of such damage
or casualty, Landlord shall repair and restore the Leased Premises with
reasonable speed and dispatch, and the rent shall xxxxx and be equitably
apportioned as the case may be as to any portion of the Leased Premises which
shall be unfit for occupancy by Tenant, or which cannot be used by Tenant so as
to conduct its business. The payment of rent, however, shall recommence
immediately upon restoration of the Leased Premises.
14.3 Nothing hereinabove contained with respect to Tenant's right to
xxxxx rent under proper conditions shall be
16
construed to limit or affect Landlord's right to payment under any claim for
damages covered by the rent insurance policy pursuant to the contract therefor
required to be provided pursuant to Article 9 of this Lease.
14.4 For the purposes of this Article 14, in determining what
constitutes reasonable speed and dispatch, consideration shall be given for
delays which would be excuses for non-performance as in Article 27 hereinafter
provided (Force Majeure).
14.5 In the event of such fire or casualty as above provided, wherein
Landlord shall rebuild, Tenant agrees, at its cost and expense, to forthwith
remove any and all of its equipment, fixtures, stock and personal property as
the same may be required to permit Landlord to expedite rebuilding and/or
repair. In any event, Tenant shall assume at its sole risk the responsibility
for damage or security with respect to such property in the event the Building
area where the same may be located has been damaged, until the Building shall be
restored and made secure.
14.6 Anything in this Article 14 to the contrary notwithstanding, it
is expressly understood and agreed that wherever reconstruction shall be
undertaken, in the event of damage or casualty as in this Article 14 provided,
Landlord shall prosecute such reconstruction with reasonable speed and dispatch.
In the event, however, such reconstruction or repair shall not be completed
within seven (7) months from the date of such damage or casualty, then, in that
event, Tenant shall have the option at the expiration of the seven (7) month
period to terminate the Lease by notice in writing by Tenant to Landlord by
certified mail, return receipt requested. In the event of such termination,
neither party shall thereafter have any further liability, one to the other, in
accordance with the terms and conditions of the Lease.
15. COMPLIANCE WITH LAWS, RULES AND REGULATIONS
-------------------------------------------
15.1 (i) Tenant covenants and agrees that upon acceptance and
occupancy of the Leased Premises, it will, during the Lease term, promptly, at
Tenant's cost and expense, execute and comply with all statutes, ordinances,
rules, orders, regulations and requirements of the Federal, State and City
Government and of any and all their departments and bureaus, applicable to the
Leased Premises, as the same may require correction, prevention and abatement of
nuisances, violations or other grievances, in, upon or
17
connected with the Leased Premises, arising from the operations of Tenant
therein.
(ii) Tenant covenants and agrees, at its own cost and expense,
to comply with such regulations or requests as may be required by the fire or
liability insurance carriers providing insurance for the Leased Premises, and
will further comply with such other requirements that may be promulgated by the
Board of Fire Underwriters, in connection with the use and occupancy by Tenant
of the Leased Premises in the conduct of its business.
(iii) Tenant covenants and agrees that it will not commit any
nuisance, nor permit the emission of any objectionable sound, noise or odors
which would be violative of any applicable governmental rule or regulation or
would per se create a nuisance. Tenant further covenants and agrees that it will
handle and dispose of all rubbish, garbage and waste in connection with Tenant's
operations in the Leased Premises in accordance with reasonable regulations
established by Landlord from time to time in order to keep the Leased Premises
in an orderly condition and in order to avoid unreasonable emission of dirt,
fumes, odors or debris which may constitute a nuisance or induce pests or
vermin.
(iv) Notwithstanding anything hereinabove contained in this
Article 15.1, Landlord shall be responsible for compliance with all laws, rules
and regulations which are applicable to the Building as a matter of general
application as an office/warehouse type building. Tenant shall be responsible
for any such compliance which is required due to the specific manner of Tenant's
use and occupancy of the Leased Premises.
15.2 In case Tenant shall fail or neglect to comply with the aforesaid
statutes, ordinances, rules, orders, regulations and requirements or any of
them, or in case Tenant shall neglect or fail to make any necessary repairs,
then Landlord or Landlord's agents may after ten (10) days' notice (except for
emergency repairs, which may be made immediately) enter said Leased Premises and
make said repairs and comply with any and all of the said statutes, ordinances,
rules, orders, regulations or requirements, at the cost and expense of Tenant
and in case of Tenant's failure to pay therefor, the said cost and expense shall
be added to the next month's rent and be due and payable as such, or Landlord
may deduct the same from the balance of any sum remaining in Landlord's hands.
This provision is in addition to the right of Landlord to
18
terminate this Lease pursuant to Article 17 hereof by reason of any default on
the part of Tenant, subject to the rights of Tenant as hereinabove mentioned in
the manner as in this Lease otherwise provided.
15.3 Without limiting anything hereinabove contained in this Article
15, Tenant expressly covenants and agrees to fully comply with the provisions of
the New Jersey Industrial Site Recovery Act (N.J.S.A. 13:1K-6, et seq.)
hereinafter referred to as "ISRA", and all regulations promulgated thereto (or
under its predecessor statute, the New Jersey Environmental Cleanup
Responsibility Act) prior to the expiration or earlier termination of the within
Lease, or at any time that any action of Tenant triggers the applicability of
ISRA. In particular, 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 which have been
promulgated pursuant to ISRA. In the event evidence of such compliance is not
delivered to Landlord prior to surrender of the Leased Premises by Tenant to
Landlord, it is understood and agreed that Tenant shall be liable to pay to
Landlord an amount equal to two times the Base Rent then in effect, prorated on
a monthly basis, together with all applicable Additional Rent from the date of
such surrender until such time as evidence of compliance with ISRA has been
delivered to Landlord, and together with any costs and expenses incurred by
Landlord in enforcing Tenant's obligations under this Article 15.3. Evidence of
compliance, as used herein, shall mean a "letter of non-applicability" issued by
the New Jersey Department of Environmental Protection, hereinafter referred to
as "NJDEP", or an approved "no further action letter" or a "remediation action
workplan" which has been fully implemented and approved by NJDEP. Evidence of
compliance shall be delivered to Landlord, together with copies of all
submissions made to, and received from, the NJDEP, including all environmental
reports, test results and other supporting documentation. In addition to the
above, Tenant hereby agrees that it shall cooperate with Landlord in the event
of the termination or expiration of any other lease affecting the Property, or a
transfer of any portion of the property indicated on Schedule "A", or any
interest therein, which triggers the provisions of ISRA. In such case, Tenant
agrees that it shall fully cooperate with Landlord in connection with any
information or documentation which may be requested by the NJDEP. In the event
that any remediation of the Property is required in connection with the conduct
by Tenant of its business in the Leased Premises, Tenant expressly covenants and
agrees that it shall be
19
responsible for that portion of said remediation which is attributable to
Tenant's use and occupancy thereof. 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. Tenant hereby agrees that it shall promptly inform
Landlord of any change in its SIC number or the nature of the business to be
conducted in the Leased Premises. The within covenants shall survive the
expiration or earlier termination of the Lease term.
16. INSPECTION BY LANDLORD
----------------------
Tenant agrees that Landlord's agents, and other representatives, shall
have the right, upon reasonable piror oral notice to Tenant, during normal
business hours, to enter into and upon the Leased Premises, or any part thereof,
at all reasonable hours for the purpose of examining the same, or for exhibiting
the same to prospective tenants [during the last twelve (12) months of the term
of this Lease, or at any time that Tenant is in default hereunder] and
purchasers (at all times) in the presence of a representative of Tenant (except
in the event of emergency) or making such repairs or alterations therein as may
be necessary for the safety and preservation thereof, without unduly or
unreasonably disturbing the operations of Tenant (except in the event of
emergency).
17. DEFAULT BY TENANT
-----------------
17.1 Each of the following shall be deemed a default by Tenant and
breach of this Lease:
(1) (i) filing of a petition by Tenant for adjudication as a
bankrupt, or for reorganization, or for an arrangement under any federal or
state statute;
(ii) dissolution or liquidation of Tenant;
(iii) appointment of a temporary or permanent receiver or a
temporary or permanent trustee of all or substantially all the property of
Tenant;
(iv) taking possession of the agency pursuant to statutory
authority for dissolution, rehabilitation, reorganization or liquidation of
Tenant;
20
(v) making by Tenant of an assignment for the benefit of
creditors; or
(vi) abandonment, desertion or vacation of the Leased Premises
by Tenant.
If any event mentioned in this subdivision (1) shall occur, Landlord
may thereupon or at any time thereafter elect to cancel this Lease by ten
(10) days' notice to Tenant, and this Lease shall terminate on the day in
such notice specified with the same force and effect as if that date were
the date herein fixed for the expiration of the term of the Lease.
(2) (i) Default in the payment of the Base Rent or Additional Rent
herein reserved or any part thereof for a period of seven (7) days after
the same is due and payable as in this Lease required.
(ii) A default in the performance of any other covenant or
condition of this Lease on the part of Tenant to be performed for a period
of thirty (30) days after written notice. For purposes of this subdivision
(2) (ii) hereof, no default on the part of Tenant in performance of work
required to be performed or acts to be done or conditions to be modified
shall be deemed to exist if steps shall have been commenced by Tenant
diligently after notice to rectify the same and shall be prosecuted to
completion with reasonable diligence, subject, however, to unavoidable
delays.
17.2 In case of any such default under Article 17.1(2) and at any time
thereafter following the expiration of the respective grace periods above
mentioned, Landlord may serve a notice upon Tenant electing to terminate this
Lease upon a specified date not less than five (5) days after the date of
serving such notice and this Lease shall then expire on the date so specified as
if that date has been originally fixed as the expiration date of the term herein
granted; however, a default under Article 17.1(2) hereof shall be deemed waived
if such default is made good before the date specified for termination in the
notice of termination served on Tenant.
17.3 In case this Lease shall be terminated as hereinbefore provided,
or by summary proceedings or otherwise, Landlord or its agents may, immediately
or any time thereafter, re-enter and resume possession of the Leased Premises or
such part
21
thereof, and remove all persons and property therefrom, either by summary
proceedings or by a suitable action or proceeding at law without being liable
for any damages, provided any entry pursuant to the foregoing shall be in
accordance with law. No re-entry by Landlord shall be deemed an acceptance of a
surrender of this Lease.
17.4 In case this Lease shall be terminated as hereinafter provided,
or by summary proceedings or otherwise, Landlord may, in its own name and in its
own behalf, relet the whole or any portion of the Leased Premises, for any
period equal to or greater or less than the remainder of the then current term,
for any sum which it may deem reasonable, to any tenant which it may deem
suitable and satisfactory, and for any use and purpose which it may deem
appropriate, and in connection with any such Lease Landlord may make such
changes in the character of the improvements on the Leased Premises as Landlord
may determine to be appropriate or helpful in effecting such lease, and Landlord
may grant concessions or free rent. Landlord agrees that it will take reasonable
steps to mitigate Tenant's damages. It is specifically understood and agreed
that Landlord, by listing the Leased Premises for lease with a recognized real
estate broker doing business in the Middlesex County, New Jersey, shall be
conclusive proof of Landlord's reasonable efforts to mitigate Tenant's damages.
Landlord shall not in any event be required to pay Tenant any surplus of any
sums received by Landlord on a reletting of the Leased Premises in excess of the
rent reserved in this Lease.
17.5 (1) Whether or not this Lease be terminated by summary
proceedings, or otherwise, as provided in this Article 17, and whether or not
the Leased Premises be relet, Landlord shall be entitled to recover from Tenant,
the following:
(i) a sum equal to all expenses, if any, including reasonable
counsel fees, incurred by Landlord in recovering possession of the Leased
Premises, the costs of reletting the Leased Premises, and all reasonable
costs and charges for the care of the Leased Premises while vacant, which
damages shall be due and payable by Tenant to Landlord at such time or
times as such expenses shall have been incurred by Landlord; and
(ii) a sum equal to all damages set forth in this Article 17 and
in Article 18 hereinafter referred to.
22
(2) Without any previous notice or demand, separate actions may
be maintained by Landlord against Tenant from time to time to recover any
damages which, at the commencement of any such action, have then or theretofore
become due and payable to Landlord under this Article 17 and subsections hereof
without waiting until the end of the then current term.
(3) All sums which Tenant has agreed to pay by way of taxes,
sewer charges, water rents or water meter charges, insurance premiums and other
similar items becoming due from time to time under the terms of this Lease,
shall be deemed Additional Rent reserved in this Lease within the meaning of
this Article 17 and subsections hereof. Notwithstanding anything in this Lease
to the contrary, all amounts payable by Tenant to or on behalf of Landlord under
this Lease, whether or not expressly denominated as rent, shall constitute rent
for the purposes of section 502(b)(6)of the Bankruptcy Code, 11 U.S.C. Section
502(b)(6), or any successor statute.
(4) LANDLORD AND TENANT EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION BROUGHT TO ENFORCE OR INTERPRET THE TERMS AND CONDITIONS OF
THIS LEASE.
18. LIABILITY OF TENANT FOR DEFICIENCY
----------------------------------
In the event that the relation of Landlord and Tenant may cease or
terminate by reason of the default by Tenant and the re-entry of Landlord as
permitted by the terms and conditions contained in this Lease or by the
ejectment of Tenant by summary proceedings or other judicial proceedings, or
after the abandonment of the Leased Premises by Tenant, it is hereby agreed that
Tenant shall remain liable to pay in monthly payments the rent which shall
accrue subsequent to the re-entry by Landlord, and Tenant expressly agrees to
pay as damages for the breach of the covenants herein contained the difference
between the rent reserved and the rent collected and received, if any, by
Landlord, during the remainder of the unexpired term, as the amount of such
difference or deficiency shall from time to time be ascertained. Anything herein
contained to the contrary notwithstanding, the rent referred to shall include
the stated reserved Base Rent together with all Additional Rent and charges
required to be paid by Tenant under the Lease including but not limited to taxes
and insurance costs, and the costs of re-renting.
23
19. NOTICES
-------
All notices required or permitted to be given to Landlord shall be
given by certified mail, return receipt requested, or by overnight courier, at
the address hereinbefore set forth on the first page of this Lease, and/or such
other place as Landlord may designate in writing, with a copy thereof being
delivered by regular mail to EPSTEIN, FITZSIMMONS, BROWN, RINGLE, XXXXX & XXXXXX
P.C., Attention: XXXXXX X. XXXXX, ESQ., 000 Xxxxx Xxxxxxx Xxxx, X.X. Xxx 000,
Xxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000.
All notices required or permitted to be given to Tenant shall be given
by certified mail, return receipt requested, or by overnight courier at the
address hereinbefore set forth on the first page of this Lease, and/or such
other place as Tenant shall designate in writing.
20. NON-WAIVER BY LANDLORD
----------------------
The failure of Landlord to insist upon strict performance of any of
the covenants or conditions of this Lease, or to exercise any option of Landlord
herein conferred in any one or more instances, shall not be construed as a
waiver by Landlord of any of its rights or remedies in this Lease, and shall not
be construed as a waiver, relinquishment or failure of any such covenants,
conditions, or options, but the same shall be and remain in full force and
effect.
21. RIGHT OF TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS
----------------------------------------------------
21.1 Tenant may make alterations, additions or improvements to the
Leased Premises only with the prior written consent of Landlord, which consent
shall not be unreasonably withheld, provided such alterations, additions or
improvements do not require structural changes in the Leased Premises, or do not
lessen the value of the Leased Premises or the Building. Any consent which
Landlord may give shall be conditioned upon Tenant furnishing to Landlord,
detailed plans and specifications with respect to any such changes, to be
approved by Landlord in writing. As a condition of such consent, Landlord
reserves the right to require Tenant to remove, at Tenant's sole cost and
expense, any such alterations or additions prior to the expiration of the Lease
term, which election shall be made by landlord at the time it gives its consent
to any such alteration or addition. If Landlord does not require such removal,
any such alterations or additions shall be deemed to be part of the realty upon
installation. All such alterations, additions or improvements shall be only in
conformity
24
with applicable governmental and insurance company requirements and regulations
applicable to the Leased Premises. Landlord reserves the right to require Tenant
to use Landlord's designated contractors in the event of any changes to the
mechanical, electrical, or fire safety systems serving the Leased Premises.
Tenant shall hold and save Landlord harmless and indemnify Landlord against any
claim for damage or injury in connection with any of the foregoing work which
Tenant may make as hereinabove provided.
21.2 Nothing herein contained shall be construed as a consent on the
part of Landlord to subject the estate of Landlord to liability under the
Construction Lien Law of the State of New Jersey, it being expressly understood
that Landlord's estate shall not be subject to such liability.
22. NON-LIABILITY OF LANDLORD
-------------------------
22.1 It is expressly understood and agreed by and between the parties
to this agreement that Tenant shall assume all risk of damage to its property,
equipment and fixtures occurring in or about the Leased Premises, whatever the
cause of such damage or casualty.
22.2 It is expressly understood and agreed that in any event, Landlord
shall not be liable for any damage or injury to property or person caused by or
resulting from steam, electricity, gas, water, rain, ice or snow, or any leak or
flow from or into any part of the Building, or from any damage or injury
resulting or arising from any other cause or happening whatsoever.
23. WARRANTY OF TITLE
-----------------
Landlord represents that it has title to the lands and premises which
are the subject of this Lease and that it has the full right, capacity and
authority to enter into the within Lease Agreement.
24. RESERVATION OF EASEMENT
-----------------------
Landlord reserves the right, easement and privilege to enter on the
Leased Premises, Building and Property in order to install, at its own cost and
expense, any storm drains and sewers and/or utility lines in connection
therewith as may be required by Landlord. It is understood and agreed that if
such work as may be required by Landlord requires an installation which may
displace any paving, lawn, seeded area or shrubs, Landlord, shall, at its own
cost and expense, restore said paving, lawn, seeded area or shrubs. Landlord
covenants that the foregoing work shall not
25
unreasonably interfere with the normal operation of Tenant's business, and
Landlord shall indemnify and save Tenant harmless in connection with such
installations.
25. AIR, GROUND AND WATER POLLUTION
-------------------------------
Tenant expressly covenants and agrees to indemnify, defend, and save
Landlord harmless against any claim, damage, liability, costs, penalties, or
fines which Landlord may suffer as a result of air, ground or water pollution
caused by Tenant in its use of the Leased Premises. Tenant covenants and agrees
to notify Landlord immediately of any claim or notice served upon it with
respect to any such claim Tenant is causing water, ground or air pollution; and
Tenant, in any event, will take immediate steps to halt, remedy or cure any
pollution of air, ground or water caused by Tenant by its use of the Leased
Premises. Landlord hereby agrees that it shall indemnify, defend and save
harmless Tenant from and against any and all claims or liabilities incurred in
connection with the environmental condition of the Leased Premises existing as
of the Commencement Date hereunder. The foregoing covenants shall survive the
expiration or earlier termination of this Lease.
26. FINANCIAL INFORMATION
---------------------
Tenant hereby agrees to deliver, upon Landlord's written request,
sufficient financial information to any proposed mortgagee of Landlord in order
that said proposed mortgagee may properly evaluate the financial condition of
Tenant in connection with any proposed mortgage loan affecting the Building. All
such information shall be kept confidential by Landlord and its proposed
mortgagees, and upon request of Tenant, Landlord and any such proposed mortgagee
shall execute to Tenant a non-disclosure agreement in form reasonably acceptable
to Landlord and such proposed mortgagee.
27. FORCE MAJEURE
-------------
Except for the obligation of Tenant to pay rent and other charges as
in this Lease provided, the period of time during which Landlord or Tenant is
prevented from performing any act required to be performed under this Lease by
reason of fire, catastrophe, strikes, lockouts, civil commotion, acts of God or
the public enemy, government prohibitions or preemptions, embargoes, inability
to obtain material or labor by reason of governmental regulations or
prohibitions, the act or default of the other party, or other events beyond the
reasonable control of Landlord or Tenant, as the case may be, shall be added to
the time for
26
performance of such act. This provision shall not, however, be construed to
extend the Lease term under any circumstances.
28. STATEMENTS BY LANDLORD AND TENANT; LANDLORD'S CONSENT
-----------------------------------------------------
28.1 Landlord and Tenant agree at any time and from time to time upon
not less than ten (10) days' prior notice from the other to execute, acknowledge
and deliver to the party requesting same, a statement in writing, certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), that it is not in default (or if claimed to be in
default, stating the amount and nature of the default), specifying the dates to
which the Base Rent and other charges have been paid in advance, if any, and
setting forth the Commencement Date and the date of expiration hereunder; it
being intended that any such statement delivered pursuant to this paragraph may
be relied upon as to the facts contained therein.
28.2 Upon Tenant's request, Landlord further agrees to execute a
Landlord's Consent and Waiver in connection with any current or future financing
transaction of Tenant relating to its property, equipment and fixtures, waiving
any Landlord's lien which Landlord may possess against said property equipment
and fixtures. Any such Landlord's Consent and Waiver shall be in a form which is
reasonably acceptable to Landlord.
29. CONDEMNATION
------------
29.1 If due to condemnation or taking or seizure by any authority
having the right of eminent domain, (i) more than fifteen (15%) per cent of the
Leased Premises is taken, or (ii) in the event that more than twenty-five (25%)
per cent of the Property is taken (including the parking areas, but exclusive of
front, side and rear set back areas), or (iii) if access to the Leased Premises
be denied, which taking in the manner hereinabove referred to and in excess of
the foregoing percentage amounts shall unreasonably or unduly interfere with the
use of the Building or parking area, or deny access to the Leased Premises, then
and in any of such events as hereinabove provided, the Lease term created shall,
at the option of Tenant, terminate, cease and become null and void from the date
when the authority exercising the power of eminent domain takes or interferes
with the use of the Leased Premises, its use of the ground area, parking area,
or area of access to the Leased Premises. Tenant shall only be responsible for
the payment of rent until the time of surrender. In any event, no part of
Landlord's
27
condemnation award shall belong to or be claimed by Tenant. Without diminishing
Landlord's award, Tenant shall have the right to make a claim against the
condemning authority for such independent claim which it may have and as may be
allowed by law, for costs and damages due to relocating, moving and other
similar costs and charges directly incurred by Tenant and resulting from such
condemnation.
29.2 In the event of any partial taking which would not be cause for
termination of the within Lease or in the event of any partial taking in excess
of the percentages provided in Article 29.1, and in which event Tenant shall
elect to retain the balance of the Leased Premises remaining after such taking,
then and in either event, the rent shall xxxxx in an amount mutually to be
agreed upon between Landlord and Tenant based on the relationship that the
character of the property taken bears to the property which shall remain after
such condemnation. In any event, no part of Landlord's condemnation award shall
belong to or be claimed by Tenant. However, Landlord shall, to the extent
permitted by applicable law and as the same may be practicable on the site of
the Leased Premises, at Landlord's sole cost and expense, promptly make such
repairs and alterations in order to restore the Building, Property and/or
improvements to the extent of the condemnation award.
30. QUIET ENJOYMENT
---------------
Landlord further covenants that Tenant, on paying the rental and
performing the covenants and conditions contained in this Lease, shall and may
peaceably and quietly have, hold and enjoy the Leased Premises for the term
aforesaid.
31. SURRENDER OF PREMISES
---------------------
On the last day, or earlier permitted termination of the Lease term,
Tenant shall quit and surrender the Leased Premises in good and orderly
condition and repair (reasonable wear and tear, and damage by fire or other
casualty excepted) and shall deliver and surrender the Leased Premises to
Landlord peaceably, together with all alterations, additions and improvements
in, to or on the Leased Premises made by Tenant as permitted under the Lease.
Landlord reserves the right, however, to require Tenant at its cost and expense
to remove any alterations or improvements installed by Tenant and not permitted
or consented to by Landlord pursuant to the terms and conditions of the Lease,
so as to restore the Leased Premises to the condition found at the inception of
the Lease term, which covenant by Tenant shall survive the surrender and the
28
delivery of the Leased Premises as provided hereunder. Tenant expressly
covenants and agrees that the Leased Premises shall be surrendered to Landlord
in "broom clean" condition. Prior to the expiration of the Lease term Tenant
shall remove all of its property, fixtures, equipment and trade fixtures from
the Leased Premises. All property not removed by Tenant shall be deemed
abandoned by Tenant, and Landlord reserves the right to charge the reasonable
cost of removal, storage and disposal of the same to Tenant, which obligation
shall survive the Lease termination and surrender hereinabove provided. If the
Leased Premises are not surrendered to the end of the Lease term, Tenant shall
indemnify Landlord against loss or liability resulting from delay by Tenant in
surrendering the Leased Premises, including, without limitation, any claims made
by any succeeding tenant founded on the delay.
32. INDEMNITY
---------
Anything in this Lease to the contrary notwithstanding, and without
limiting Tenant's obligation to provide insurance pursuant to Article 9
hereunder, Tenant covenants and agrees that it will indemnify, defend and save
harmless Landlord against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including without limitation
reasonable attorneys' fees, which may be imposed upon or incurred by Landlord by
reason of any of the following occurring during the term of this Lease:
(i) Any matter, cause or thing arising out of use, occupancy,
control or management of the Leased Premises and any part thereof;
(ii) Any negligence on the part of Tenant or any of its agents,
contractors, servants, employees, licensees or invitees;
(iii) Any accident, injury, damage to any person or property occurring
in, or about the Leased Premises;
(iv) Any failure on the part of Tenant to perform or comply with any
of the covenants, agreements, terms or conditions contained in this Lease
on its part to be performed or complied with.
(v) Subject to the exception set forth in Article 22.1, the
foregoing shall not require indemnity by Tenant in the event of damage or
injury occasioned by the negligence or
29
acts of commission or omission of Landlord, its agents, servants or
employees.
Landlord shall promptly notify Tenant of any such claim asserted
against it and shall promptly send to Tenant copies of all papers or legal
process served upon it in connection with any action or proceeding brought
against Landlord by reason of any such claim.
33. SHORT FORM LEASE
----------------
It is understood between the parties hereto that this Lease will not
be recorded, but that a short form lease, describing the property leased hereby,
giving the term of this Lease, and making particular mention of any special
clauses as herein contained, may be recorded by Landlord in accordance with the
laws governing and regulating the recording of such documents in the State of
New Jersey.
34. LEASE CONSTRUCTION
------------------
This Lease shall be construed pursuant to the laws of the State of New
Jersey.
35. BIND AND INURE CLAUSE
---------------------
The terms, covenants and conditions of the within Lease shall be
binding upon and inure to the benefit of each of the parties hereto, their
respective executors, administrators, heirs, successors and assigns, as the case
may be.
36. DEFINITIONS
-----------
The neuter gender, when used herein and in the acknowledgment
hereafter set forth, shall include all persons and corporations, and words used
in the singular shall include words in the plural where the text of the
instrument so requires.
37. NET RENT
--------
It is the purpose and intent of Landlord and Tenant that the rent
shall be absolutely net to Landlord, so that this Lease shall yield, net, to
Landlord, the rent specified in Article 3 hereof in each month during the term
of the Lease, and that all costs, expenses and obligations of every kind and
nature whatsoever relating to the Leased Premises which may arise or become due
during or out of the term of this Lease, shall be paid by Tenant, except for
such obligations and charges as have otherwise expressly been assumed by
Landlord in accordance with the terms and conditions of this Lease. Nothing
herein shall require Tenant to
30
undertake obligations in connection with the sale or mortgaging of the Leased
Premises, unless otherwise expressly provided in accordance with the terms and
conditions of this Lease.
38. DEFINITION OF TERM OF "LANDLORD"
--------------------------------
When the term "Landlord" is used in this Lease it shall be construed
to mean and include only the owner of the fee title of the Property. Upon the
transfer by Landlord of the fee title hereunder, Landlord shall advise Tenant in
writing by certified mail, return receipt requested of the name of Landlord's
transferee. In such event, the then Landlord shall be automatically freed and
relieved from and after the date of such transfer of title of all personal
liability with respect to the performance of any of the covenants and
obligations on the part of Landlord herein contained to be performed, provided
any such transfer and conveyance by Landlord is expressly subject to the
assumption by the grantee or transferee of the obligations of Landlord to be
performed pursuant to the terms and conditions of the within Lease.
39. COVENANTS OF FURTHER ASSURANCES
-------------------------------
If, in connection with obtaining financing for the Building, the
Mortgage Lender shall request reasonable modifications to this Lease as a
condition to such financing, Tenant will not unreasonably withhold, delay or
refuse its consent thereto, provided that such modifications do not in Tenant's
reasonable judgment increase the obligations of Tenant hereunder or materially
adversely affect the leasehold interest hereby created or Tenant's use and
enjoyment of the Leased Premises.
40. LANDLORD'S REMEDIES
-------------------
40.1 The rights and remedies given to Landlord in this Lease are
distinct, separate and cumulative remedies, and no one of them, whether or not
exercised by Landlord, shall be deemed to be in exclusion of any of the others.
40.2 In addition to any other legal remedies for violation or breach
by or on the part of Tenant or by any undertenant or by anyone holding or
claiming under Tenant or any one of them, of the restrictions, agreements or
covenants of this Lease on the part of Tenant to be performed or fulfilled, such
violation or breach shall be restrainable by injunction at the suit of Landlord.
31
40.3 No receipt of money by Landlord from any receiver, trustee or
custodian, debtor in possession, or any permitted subtenant, shall reinstate,
continue or extend the term of this Lease or affect any notice theretofore given
to Tenant, or to any such receiver, trustee or custodian, debtor in possession,
or any permitted subtenant, or operate as a waiver or estoppel of the right of
Landlord to recover possession of the Leased Premises for any of the causes
therein enumerated by any lawful remedy; and the failure of Landlord to enforce
any covenant or condition by reason of its breach by Tenant shall not be deemed
to void or affect the right of Landlord to enforce the same covenant or
condition on the occasion of any subsequent default or breach.
40.4 Tenant agrees that it shall reimburse Landlord for Landlord's
reasonable attorney's fees incurred in enforcing the terms and conditions of
this Lease on the part of Tenant to be performed. Tenant further agrees to
reimburse Landlord for Landlord's attorney's fees incurred in connection with
the review by Landlord of any Landlord's waiver, assignment or sublet agreement
or any other documentation reviewed by Landlord at Tenant's request.
41. COVENANT AGAINST LIENS
----------------------
Tenant agrees that it shall not knowingly encumber, or suffer or
permit to be encumbered, the Leased Premises or the fee thereof by any lien,
charge or encumbrance, and Tenant shall have no authority to mortgage or
hypothecate this Lease in any way whatsoever. The violations of this Article
shall be considered a breach of this Lease.
42. BROKERAGE
---------
The parties mutually represent to each other that XXXXXXX XXXXX REALTY
INC. and RESOURCE REALTY OF CENTRAL NJ are the sole brokers who negotiated and
consummated the within transaction, and that neither party dealt with any other
broker in connection with the within agreement, it being understood and agreed
that the Landlord shall be responsible, at its sole cost and expense, to pay the
real estate brokerage commission in connection with this transaction. Landlord
agrees to indemnify, defend and save harmless Tenant in connection with the
claims of any other real estate broker claiming commissions in connection with
the within transaction and claiming authority from Landlord. Tenant agrees to
indemnify, defend and save harmless Landlord in connection with the claims of
any other real estate broker claiming commissions in
32
connection with the within transaction and claiming authority from Tenant.
43. SUBORDINATION OF LEASE
----------------------
This Lease shall be subject and subordinate at all times to the lien
of any mortgages or ground rents or other encumbrances now or hereafter placed
on the Complex, Building and Leased Premises without the necessity of any
further instrument or act on the part of Tenant to effectuate such
subordination, but Tenant covenants and agrees to execute and deliver upon
demand such further instrument or instruments evidencing such subordination of
the Lease to the lien of any such mortgage or ground rent or other encumbrances
as shall be desired by a mortgagee or proposed mortgagee or by any person.
Landlord shall use reasonable efforts to obtain from its current mortgagee, and
Landlord shall obtain from all future mortagees of the Leased Premises, a
Subordination, Non-Disturbance and Attornment Agreement for the benefit of
Tenant; any such Subordination, Non-Disturbance and Attornment Agreement shall
be written on the applicable mortgagee's customary form.
44. MUTUAL PARKING
--------------
It is expressly understood and agreed between the Landlord and Tenant
that the entire parking area and access driveways will be for the mutual use and
benefit of the Landlord and Tenant hereunder, and/or the Landlord's other
tenants in the building. Tenant shall be entitled to utilize, at no additional
cost, twenty eight (28) parking spaces in the parking area; at least ten (10) of
said spaces shall be used by Tenant in the parking area to the rear of the
Leased Premises. The parties agree that they will not permit the access
driveways to be blocked so as to unreasonably interfere with the use of said
access driveways and parking area.
45. SECURITY
--------
Upon execution of this Lease, the Tenant shall deposit with the
Landlord the sum of THIRTY TWO THOUSAND NINE HUNDRED SEVENTY AND 00/100
($32,970.00) DOLLARS as security for the full and faithful performance of this
Lease upon the part of the Tenant to be performed. After the first (1st)
anniversary of the Commencement Date of this Lease, and providing the Tenant is
not in default hereunder and has performed all of the conditions of this Lease,
the Landlord shall return the said sum of TEN THOUSAND NINE HUNDRED NINETY AND
00/100 ($10,990.00) DOLLARS to the Tenant. Upon termination of this Lease, and
providing the Tenant has not been in default hereunder and has performed all of
the conditions of this
33
Lease, the Landlord shall return the balance of the security deposit then
remaining in Landlord's hands to the Tenant. Anything herein contained to the
contrary notwithstanding, it is expressly understood and agreed that the said
security deposit shall not bear interest. Tenant covenants and agrees that it
will not assign, pledge, hypothecate, mortgage or otherwise encumber the
aforementioned security during the term of this Lease. It is expressly
understood and agreed that the Landlord shall have the right to co-mingle the
security funds with its general funds and said security shall not be required to
be segregated.
46. LIMIT OF LANDLORD'S LIABILITY
-----------------------------
Tenant shall look solely to Landlord's estate in the Property for the
enforcement of any judgment or decree requiring the payment of money to Tenant
by reason of any default or breach by Landlord under this Lease. In no event
shall there be any personal liability on the part of Landlord (or its individual
partners) beyond its interest in the Property and no other assets of Landlord
(or its individual partners) shall be subject to levy, execution, attachment or
any other legal process.
47. ADJUSTMENT OF TENANT'S PERCENTAGE
---------------------------------
In the event that the Building (or Complex) is modified, enlarged or
expanded so that the total square footage of said Building (or Complex) is more
or less than 59,740 square feet (or in the event the total square footage of the
Complex is more or less than 165,740 square feet), Tenant's Percentage for all
Lease purposes shall be adjusted accordingly.
48. SURVIVAL OF OBLIGATION
----------------------
It is expressly understood and agreed that in the event there are any
obligations of Tenant with respect to payment or performance as required under
the terms and conditions of this Lease that shall have not been performed prior
to the expiration or termination of the Lease in accordance with its terms, such
obligation, including the obligation to make rent adjustments and other Lease
adjustments, shall survive the expiration or termination of the Lease term and
surrender of the Leased Premises by Tenant to Landlord.
49. OPTION TO RENEW
---------------
Provided Tenant is not in default pursuant to the terms and conditions
of this Lease, Tenant is hereby given the right and privilege to renew the
within Lease, for one (l) three (3) year renewal period, to commence at the end
of the initial term
34
of this Lease, which renewal shall be upon the same terms and conditions as in
this Lease contained, except as follows:
(l) During the three (3) year renewal term, there shall be paid
annually Base Rent in the amount of ONE HUNDRED THIRTY SIX THOUSAND TWO HUNDRED
SEVENTY SIX AND 00/100 ($136,276.00) DOLLARS per annum payable in equal
installments of ELEVEN THOUSAND THREE HUNDRED FIFTY SIX AND 33/100 ($11,356.33)
DOLLARS per month. Tenant shall continue to pay all Additional Rent and other
charges required by the terms and conditions of this Lease during said three (3)
year renewal term.
(2) The right, option, and privilege of Tenant to renew this Lease
as hereinabove set forth is expressly conditioned upon Tenant delivering to
Landlord, in writing, by certified mail, return receipt requested, twelve (12)
months's prior notice of its intention to renew, which notice shall be given to
Landlord by Tenant no later than twelve (12) months prior to the date fixed for
termination of the original term of this Lease.
50. EXECUTION AND DELIVERY
----------------------
The submission of the within Lease by Landlord to Tenant for review
and approval shall not be deemed an option to lease, an offer to lease, or a
reservation of the Leased Premises in favor of Tenant, it being intended that no
rights or obligations shall be created by Landlord or Tenant until the execution
and delivery of the within Lease by Landlord and Tenant, one to the other.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals or caused these presents to be signed by its proper corporate officers and
caused its proper corporate seal to be hereunto affixed, the day and year first
above written.
WITNESS: XXXXXXX MONTROSE, L.L.C.
By: (L.S.)
------------------------ ------------------------------
Xxxxxx Xxxxx, Manager
ATTEST: ABLE LABORATORIES
By:
------------------------ ------------------------------
00
XXXXX XX XXX XXXXXX )
) SS.:
COUNTY OF )
BE IT REMEMBERED, that on this day of ,
2001, before me the subscriber, personally appeared XXXXXX XXXXX, who, I am
satisfied, is a Manager of XXXXXXX MONTROSE, L.L.C., a New Jersey Limited
Liability Company, the Landlord mentioned in the within Instrument, and
thereupon he acknowledged that he signed, sealed and delivered the same as his
act and deed, for the uses and purposes therein expressed.
______________________________
STATE OF )
) SS.
COUNTY OF )
BE IT REMEMBERED, that on this day of
2001, before me, the subscriber, personally
appeared , who, I am satisfied, is the
person who signed the within Instrument as of
ABLE LABORATORIES, a Delaware Corporation, the Tenant named therein, and he
thereupon acknowledged that the said instrument made by the corporation and
sealed with its corporate seal, was signed, sealed with the corporate seal and
delivered by him as such officer and is the voluntary act and deed of the
corporation, made by virtue of authority from its Board of Directors.
______________________________
L E A S E A G R E E M E N T
- - - - - - - - - - - - - -
BY AND BETWEEN:
XXXXXXX MONTROSE, L.L.C.,
a New Jersey Limited Liability Company,
"Landlord"
-and-
ABLE LABORATORIES
a Delaware Corporation,
"Tenant"
PREMISES: 0000 Xxxxxxx Xxxx
Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
PREPARED BY: XXXXXX X. XXXXX, ESQ.
DATED:
L E A S E A G R E E M E N T
- - - - - - - - - - - - - -
BY AND BETWEEN
XXXXXXX MONTROSE, L.L.C.,
a New Jersey Limited Liability Company,
"Landlord"
-and-
ABLE LABORATORIES
a Delaware Corporation,
"Tenant"
-------------------------------------------
DATED:
-------------------------------------------
LAW OFFICES
EPSTEIN, FITZSIMMONS, XXXXX
XXXXXX, XXXXX & XXXXXX
A Professional Corporation
000 Xxxxx Xxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx Xxxxxxxx, XX 00000-0000
(000) 000-0000
Fax (000) 000-0000
TABLE OF CONTENTS
-----------------
1. LEASED PREMISES......................................................1
---------------
2. TERM OF LEASE........................................................2
-------------
3. RENT.................................................................2
----
4. CONDITION OF LEASED PREMISES.........................................4
----------------------------
5. USE..................................................................5
---
6. REPAIRS AND MAINTENANCE..............................................5
-----------------------
7. UTILITIES............................................................6
---------
8. TAXES................................................................6
-----
9. INSURANCE............................................................7
---------
10. SIGNS................................................................9
-----
11. FIXTURES.............................................................9
--------
12. GLASS...............................................................10
-----
13. ASSIGNMENT AND SUBLETTING...........................................10
-------------------------
14. FIRE AND CASUALTY...................................................12
-----------------
15. COMPLIANCE WITH LAWS, RULES AND REGULATIONS.........................13
-------------------------------------------
16. INSPECTION BY LANDLORD..............................................15
----------------------
17. DEFAULT BY TENANT...................................................15
-----------------
18. LIABILITY OF TENANT FOR DEFICIENCY..................................18
----------------------------------
19. NOTICES.............................................................18
-------
20. NON-WAIVER BY LANDLORD..............................................18
----------------------
21. RIGHT OF TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS................18
----------------------------------------------------
22. NON-LIABILITY OF LANDLORD...........................................19
-------------------------
23. WARRANTY OF TITLE...................................................19
-----------------
24. RESERVATION OF EASEMENT.............................................19
-----------------------
25. AIR, GROUND AND WATER POLLUTION.....................................20
-------------------------------
26. FINANCIAL INFORMATION...............................................20
---------------------
27. FORCE MAJEURE.......................................................20
-------------
28. STATEMENTS BY LANDLORD AND TENANT; LANDLORD'S CONSENT...............20
-----------------------------------------------------
29. CONDEMNATION........................................................21
------------
30. QUIET ENJOYMENT.....................................................21
---------------
31. SURRENDER OF PREMISES...............................................22
---------------------
32. INDEMNITY...........................................................22
---------
33. SHORT FORM LEASE....................................................23
----------------
34. LEASE CONSTRUCTION..................................................23
------------------
35. BIND AND INURE CLAUSE...............................................23
---------------------
36. DEFINITIONS.........................................................23
-----------
37. NET RENT............................................................23
--------
38. DEFINITION OF TERM OF "LANDLORD"....................................23
--------------------------------
39. COVENANTS OF FURTHER ASSURANCES.....................................24
-------------------------------
40. LANDLORD'S REMEDIES.................................................24
-------------------
41. COVENANT AGAINST LIENS..............................................24
----------------------
42. BROKERAGE...........................................................25
---------
43. SUBORDINATION OF LEASE..............................................25
----------------------
44. MUTUAL PARKING......................................................25
--------------
45. SECURITY............................................................25
--------
46. LIMIT OF LANDLORD'S LIABILITY.......................................26
-----------------------------
47. ADJUSTMENT OF TENANT'S PERCENTAGE...................................26
---------------------------------
48. SURVIVAL OF OBLIGATION..............................................26
----------------------
49. OPTION TO RENEW.....................................................26
---------------
50. EXECUTION AND DELIVERY..............................................27
----------------------
SCHEDULE "A" - METES AND BOUNDS DESCRIPTION
SCHEDULE "B" - PLAN
SCHEDULE "C" - UTILITY CHARGES
REFERENCE DATA
--------------
The following definitions shall be applicable for all purposes of this Lease,
wherever the same are initially capitalized:
Base Rent: See Article 3.1.
Additional Rent: See Article 3.2.
Building: 0000 Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx, containing
approximately 59,740 gross rentable square feet.
Commencement Date: October 1, 2001, subject to the provisions of Article 2.2.
Expiration Date: September 30, 2004, subject to the provisions of Article 2.2.
Leased Premises: The premises shown on the building plan annexed to this Lease
as Schedule "B", which Leased Premises are deemed to have a gross rentable area
of 21,980 square feet, together with all fixtures and equipment now or hereafter
attached thereto.
Property: The Property described by metes and bounds on Schedule "A" of the
Lease.
Rent: All Base Rent and Additional Rent payable by Tenant under this Lease.
Tenant's Percentage: 36.8%, subject to the provisions of Article 47.
Term: Three (3) years.
XXXXXXX MONTROSE, L.L.C.
By:
------------------------------
Xxxxxx Xxxxx, Managing Member
ABLE LABORATORIES
By:
------------------------------
