\n1. THE LEASED PROPERTY …………………………………………… 1
\n2. TERM ………………………………………………………… 2
\n3. USE OF THE LEASED PROPERTY …………………………………….. 2
\n4. RENT AND ADDITIONAL RENT ………………………………………. 3
\n5. INSURANCE ……………………………………………………. 4
\n6. UTILITIES ……………………………………………………. 6
\n7 DESTRUCTION ………………………………………………….. 6
\n8. COMPLIANCE WITH LAWS ………………………………………….. 6
\n9. ALTERATIONS AND REPAIRS ……………………………………….. 7
\n10. SIGNS ……………………………………………………….. 8
\n11. ACCESS TO THE PROPERTY ………………………………………… 8
\n12. ASSIGNMENT AND SUBLETTING ……………………………………… 9
\n13. CONDEMNATION …………………………………………………. 10
\n14. ENVIRONMENTAL COMPLIANCE ………………………………………. 10
\n15. SURRENDER BY TENANT AT END OF TERM ……………………………… 12
\n16. EVENT OF DEFAULT BY TENANT\/OTHER TENANT DEFAULTS …………………. 13
\n17. SUBORDINATION ………………………………………………… 14
\n18. QUIET ENJOYMENT ………………………………………………. 15
\n19. CERTIFICATES …………………………………………………. 15
\n20. NOTICES ……………………………………………………… 16
\n21. INTERPRETATION ……………………………………………….. 16
\n22. BROKERAGE REPRESENTATION ………………………………………. 17
\n23. ENTIRE AGREEMENT\/ NO WAIVER ……………………………………. 17
\n24. NEW JERSEY LAW ……………………………………………….. 19
\n25. CONSENTS …………………………………………………….. 19
\n26. LIMITATION OF LIABILITY AND INDEMNIFICATION ……………………… 19
\n27. AUTHORITY ……………………………………………………. 21
\n<\/c><\/s><\/caption>\n<\/table>\n POST CLOSING LEASE<\/p>\n
THIS POST CLOSING LEASE (this “Lease”), made as of the ____ th day of
\nJanuary, 2002, by and between IMCLONE SYSTEMS INCORPORATED, a Delaware
\ncorporation, having an address at 180 Varick Street, New York, New York 10014
\n(the “Landlord”), and HIGHLAND PACKAGING LABS, INC., a New Jersey corporation,
\nhaving an address at 1181 Route 202, Somerville, New Jersey 08876 (the
\n“Tenant”).<\/p>\n
WITNESSETH:<\/p>\n
WHEREAS, contemporaneously with the execution and delivery hereof and
\npursuant to an Agreement of Purchase and Sale dated as of December ___, 2001,
\n(the “Agreement”), Landlord has purchased from Corum Realty, Limited Partnership
\n(“Corum”), the Property (as defined in the Agreement), including, without
\nlimitation, the land and improvements commonly known as 1181 Route 202,
\nBranchburg, Somerset County, New Jersey; and<\/p>\n
WHEREAS, Tenant operates a packaging operation (the “Business”) at a
\nportion of the Property; and<\/p>\n
WHEREAS, Tenant is under common control with Corum and is wholly owned
\nby Corum’s general partners; and<\/p>\n
WHEREAS, Tenant is currently marketing the Business for sale as a going
\nconcern and desires to occupy the Leased Property for the term provided herein
\nin order to effect such sale or to otherwise liquidate the Business; and<\/p>\n
WHEREAS, Landlord is hereby leasing to Tenant, and Tenant is hereby
\nleasing from Landlord, a portion of the Property more fully described or
\ndepicted on Exhibit A hereto (the “Leased Property”), on the terms and
\nconditions set forth herein.<\/p>\n
NOW, THEREFORE, in consideration of the foregoing and the mutual
\ncovenants and commitments contained therein, the parties covenant and agree as
\nfollows:<\/p>\n
1. THE LEASED PROPERTY. Landlord, for and in consideration of the
\ncovenants and agreements hereinafter mentioned, reserved and contained, to be
\nkept and performed by Tenant, does hereby demise and lease unto Tenant and
\nTenant does hereby lease and hire from Landlord, the Leased Property, together
\nwith access across, through and\/or over portions of the Property as is and shall
\nbe necessary or advisable to allow Tenant to access the Leased Property for the
\npurposes hereinafter provided. It is understood and agreed between the parties
\nhereto that the Tenant has thoroughly inspected the Leased Property demised
\nhereunder and, is thoroughly familiar with the condition of the Leased Property
\ndemised hereunder and agree to accept the Leased Property in its “as is, where
\nis, with all faults” condition. Landlord makes no representations whatsoever
\nwith respect to the condition of Leased Property demised hereunder.<\/p>\n
2. TERM. Landlord leases unto Tenant and Tenant hires from Landlord
\n the Leased Property for the Term to commence on the Commencement Date, and to
\n end on the Expiration Date. The “Commencement Date” shall be the date hereof.
\n The “Expiration Date” shall be the earliest to occur of (a) April 30, 2002;
\n unless the term of this Lease is extended through June 30, 2002 in accordance
\n with Paragraph 15 hereof (b) the date, if any, mutually agreed upon by the
\n parties and (c) any other termination of this Lease in accordance with its
\n terms.<\/p>\n
3. USE OF THE LEASED PROPERTY.<\/p>\n
3.1 Use of the Leased Property. Tenant covenants and agrees to use the
\nLeased Property only for the Permitted Use and at all times subject to the
\nApprovals (as hereinafter defined), if any. The term “Permitted Use” means the
\noperation of the Business, and for no other use whatsoever.<\/p>\n
3.2 Approvals. Tenant, at its cost and expense, shall duly procure and
\nthereafter maintain all Approvals, if any, which shall be required for the
\nproper and lawful conduct of the Permitted Use on the Leased Property or any
\npart thereof, and Tenant shall furnish a photostatic copy thereof to Landlord
\nupon Landlord’s request therefor. The term “Approvals” means all governmental
\nrequirements and conditions relating to the Permitted Use. Tenant shall at all
\ntimes comply with the terms and conditions of each such Approval. Landlord and
\nTenant agree to reasonably cooperate with each other in the obtaining of the
\nnecessary permits and approvals in connection with each other’s operations.<\/p>\n
3.3 Reservation of Rights. Landlord reserves the right at any time,
\nwithout incurring any liability to Tenant therefor, and without affecting or
\nreducing any of Tenant’s covenants and obligations hereunder, to make such
\nchanges, alterations, additions and improvements in or to the street entrances,
\nparking lots, roadways and driveways, as Landlord, in its sole and absolute
\ndiscretion, shall deem necessary or desirable to comply with the requirements of
\nany federal, state or local governmental agency, commission, board or political
\nsubdivision (each a “Regulatory Authority”). Landlord reserves the right, and
\nTenant shall permit Landlord, (i) to install, erect, use and maintain pipes,
\nducts and conduits in and through the Leased Property and (ii) to make such
\nrepairs, changes, alterations, additions and improvements in or to the Leased
\nProperty as Landlord is required to make by Regulatory Authorities. Landlord
\nshall be allowed to take all materials into and upon the Leased Property that
\nmay be required in connection therewith without any liability to Tenant and
\nwithout the same constituting an eviction of Tenant, in whole or in part, and
\nwithout any abatement or reduction in Rent payable hereunder or any reduction of
\nTenant’s covenants and obligations hereunder.<\/p>\n
2<\/p>\n
4. RENT AND ADDITIONAL RENT.<\/p>\n
4.1 Minimum Rent.<\/p>\n
No minimum rent shall be payable by Tenant to Landlord in
\nconnection with this Lease. The term “Rent” means all amounts payable by Tenant
\nto Landlord hereunder, including minimum rent, if any, and Additional Rent (as
\nhereinafter defined).<\/p>\n
4.2 Additional Rent. Any and all charges other than the minimum rent
\npayable by Tenant under the various sections of this Lease, whether to Landlord
\nor directly to other persons shall be referred to herein as “Additional Rent”.
\nTenant shall provide Landlord with proof of payment thereof upon Landlord’s
\nrequest. In the event of non-payment of any item of Additional Rent, Landlord
\nshall have all the rights and remedies with respect thereto as is herein and at
\nlaw provided for in case of non-payment of Rent.<\/p>\n
4.3 Operating Expenses. During the Term of this Lease, Tenant shall
\ntimely pay (a) by direct contract or by reimbursement of Landlord promptly after
\ndemand all costs and expenses relating to or allocable to the ownership,
\nmanagement, repair, maintenance, replacement, restoration or operation of the
\nLeased Property (collectively, “LP Operating Expenses”), if any, and (b) by
\nreimbursement of Landlord promptly after demand, Tenant’s Proportionate Share
\n(as defined below) of all costs and relating to or allocable to the ownership,
\nmanagement, repair, maintenance, replacement, restoration or operation of the
\nportion of the Property not constituting the Leased Property (collectively, the
\n“Property Operating Expenses”).<\/p>\n
4.4 Tenant’s Proportionate Share. Tenant’s Proportionate Share shall be
\nequal to one hundred (100%) percent.<\/p>\n
4.5 Taxes. Tenant shall pay to Landlord promptly after demand Tenant’s
\nProportionate Share of all Taxes. The term “Taxes” means the sum of the real
\nestate taxes and assessments, special assessments, impositions, and other
\ngovernmental charges of every kind and nature whatsoever, extraordinary, as well
\nas ordinary, unforeseen, as well as foreseen, and each and every installment
\nthereof, which during the Term shall be charged, laid, levied, assessed,
\nimposed, become due and payable, or liens upon the Property or any part thereof,
\nby any federal, state or local authorities having jurisdiction thereto, and all
\ntaxes, assessments, imposition and charges levied or imposed in place of or in
\naddition to any of the foregoing, together with all interest and penalties
\nthereof, under or by virtue of all present or future laws, ordinances,
\nrequirements, orders, directions, rules or regulations of any Regulatory
\nAuthority. Taxes shall not include any federal, state or municipal income tax,
\nor any profit, inheritance, estate, succession, gift, franchise or transfer tax
\nimposed directly upon Landlord. The term “Tax Year” means each 12 month period
\n(deemed for the purposes of this definition to have 365 days) established as the
\ntax year by the taxing authorities having lawful jurisdiction over the Property.<\/p>\n
4.6 Security Deposit. Contemporaneously with the execution and delivery
\nhereof, Tenant has deposited with Landlord a security deposit in the amount of
\n$400,000 for the<\/p>\n
3<\/p>\n
payment of Rent and the full and faithful performance by the Tenant of the
\ncovenants and conditions on the part of the Tenant to be performed hereunder. In
\nthe event Tenant defaults in respect to any of the terms, provisions and
\nconditions of this Lease, including, but not limited to, the payment of Rent and
\nAdditional Rent, Landlord may use, apply or retain the whole or any part of the
\nsecurity so deposited to the extent required for the payment of any Rent and
\nAdditional Rent or any other sum as to which Tenant is in default or for any sum
\nwhich Landlord may expend or may be required to expend by reason of Tenant’s
\ndefault in respect of any of the terms, covenants and conditions of this Lease,
\nincluding but not limited to, any damages resulting from Tenant’s failing to
\ntimely and properly vacate the Leased Property on the Expiration Date, whether
\nsuch damages accrued before or after summary proceedings or other re-entry by
\nLandlord. Subject to the provisions of this Section 4.6, said sum (or the
\nbalance thereof) shall be returned to the Tenant, without interest, after the
\nexpiration of the term hereof, provided that the Tenant has fully and faithfully
\nperformed all such covenants and conditions and is not in arrears in Rent. If
\nLandlord applies or retains any part of the security so deposited, Tenant, upon
\ndemand, shall deposit with Landlord the amount so applied or retained, so that
\nLandlord shall have the full security on hand at all times during the term of
\nthis Lease. Tenant further covenants that it will not assign or encumber or
\nattempt to assign or encumber the monies deposited herein as security and that
\nneither Landlord nor its successors or assigns shall be bound by any assignment,
\nencumbrance, attempted assignment or attempted encumbrance.<\/p>\n
5. INSURANCE.<\/p>\n
5.1 Tenant’s Insurance. Tenant shall maintain during the term of this
\nLease the following coverages.<\/p>\n
(a) Physical Damage Insurance covering (i) all of Tenant’s
\nproperty on the Leased Property, and (ii) any improvements, additions and
\nalterations made to the Leased Property by Tenant (collectively, “Tenant
\nImprovements”).<\/p>\n
(b) Comprehensive General Liability Insurance including
\nProduct\/Completed Operations Liability, covering the insured against claims of
\nbodily injury, personal injury and property damage arising out of Tenant’s
\noperations, assumed liabilities or use of the Leased Property, including a Broad
\nForm Comprehensive General Liability endorsement covering the insuring
\nprovisions of this Lease and the performance by Tenant of the indemnity
\nagreements set forth in this Lease, for limits of liability not less than:<\/p>\n
Bodily Injury and $1,000,000 each occurrence
\n Property Damage Liability $1,000,000 annual aggregate<\/p>\n
Personal Injury Liability $1,000,000 each occurrence
\n $1,000,000 annual aggregate
\n 0% Insured’s participation<\/p>\n
4<\/p>\n
(c) Automobile Liability Insurance for all owned, nonowned and hired
\nvehicles, covering the insured against claims of bodily injury and property
\ndamage with limits of liability not less than $1,000,000 each occurrence.<\/p>\n
(d) Workers Compensation and Employer’s Liability Insurance with limits
\nof liability not less than:<\/p>\n
Workers Compensation Statutory Limits<\/p>\n
Employer’s Liability $1,000,000\/$1,000,000\/$1,000,000<\/p>\n
(e) Umbrella Liability Insurance covering the insured against claims of
\nbodily injury, personal injury and property damage with limits of liability of
\nnot less than $4,000,000 in excess of the limits provided in 5.1(b) and 5.1(c).<\/p>\n
(f) Tenant shall carry and maintain during the entire term of this
\nLease, at Tenant’s sole cost and expense, increased amounts of the insurance
\nrequired to be carried by Tenant pursuant to this Article, and such other
\nreasonable types of insurance coverage and in such reasonable amounts, as may be
\nreasonably requested by Landlord.<\/p>\n
5.2 Compliance With Insurance Requirements. Tenant shall neither use
\nthe Leased Property nor permit the Leased Property to be used or acts to be done
\ntherein which will (a) increase the premium of any insurance described in this
\nArticle; (b) cause a cancellation of or be in conflict with any such insurance
\npolicies; (c) result in a refusal by insurance companies of good standing to
\ninsure the Leased Property in amounts reasonably satisfactory to Landlord; or
\n(d) subject Landlord to any liability or responsibility for injury to any person
\nor property by reason of any operation being conducted in the Leased Property.
\nTenant shall, at Tenant’s expense, comply as to the Leased Property with all
\ninsurance company requirements pertaining to the use of the Leased Property. If
\nTenant’s conduct or use of the Leased Property causes any increase in the
\npremium for such insurance policies, then Tenant shall reimburse Landlord for
\nany such increase. Tenant, at Tenant’s expense, shall comply with all rules,
\norders, regulations or requirements of the American Insurance Association
\n(formerly the National Board of Fire Underwriters) AND with any similar body.<\/p>\n
5.3 Waiver of Subrogation. Landlord and Tenant agree to have their
\nrespective insurance companies issuing property damage insurance waive any
\nrights of subrogation that such companies may have against Landlord or Tenant.
\nAs long as such waivers of subrogation are contained in their respective
\ninsurance policies, Landlord and Tenant hereby waive any right that either may
\nhave against the other on account of any loss or damage to their respective
\nproperty to the extent such loss or damage is insurable under policies of
\ninsurance for fire and all risk coverage, theft, public liability, or other
\nsimilar insurance.<\/p>\n
5.4 Standards for Insurance. The minimum limits of policies of
\ninsurance required of Tenant under this Lease shall in no event limit the
\nliability of Tenant under this Lease. Such<\/p>\n
5<\/p>\n
insurance shall (i) name Landlord, and any other party it so specifies, as
\nadditional insureds; (ii) specifically cover the liability assumed by Tenant
\nunder this Lease; (iii) be issued by an insurance company having a rating of not
\nless than A-X in Best’s Insurance Guide or which is otherwise acceptable to
\nLandlord and licensed to do business in the State of New Jersey; (iv) be primary
\ninsurance as to all claims thereunder and provide that any insurance carried by
\nLandlord is excess and non-contributing with any insurance requirement of
\nTenant; (v) provide that said insurance shall not be canceled or coverage
\nchanged unless thirty (30) days’ prior written notice shall have been given to
\nLandlord and any mortgagee of Landlord; and (vi) contain a cross-liability
\nendorsement or severability of interest clause acceptable to Landlord. Tenant
\nshall deliver duplicate copies of said policy or policies or original
\ncertificates thereof to Landlord on or before the Commencement Date and at least
\nthirty (30) days before the expiration dates thereof. In the event Tenant shall
\nfail to procure such insurance, or to deliver such policies or certificate,
\nLandlord may, at its option, procure such policies for the account of Tenant,
\nand the cost thereof shall be paid to Landlord as Additional Rent within five
\n(5) days after delivery to Tenant of bills therefor.<\/p>\n
6. UTILITIES. Tenant shall pay all utility meter, connection and
\nservice charges, including those for gas, sewer, electricity, water and standby
\nsprinkler and any deposits required by utility suppliers. Landlord shall not be
\nrequired to furnish any utilities to Tenant.<\/p>\n
7. DESTRUCTION. If at any time during the term hereof the Leased
\nProperty shall be damaged or destroyed in whole or in part by fire or other
\ncasualty or by the elements, Tenant shall give notice thereof to Landlord.
\nLandlord, at Landlord’s option, may terminate this Lease upon notice to Tenant
\nand Tenant shall have thirty (30) days after the giving of such notice to vacate
\nand surrender the Leased Property to Landlord.<\/p>\n
8. COMPLIANCE WITH LAWS. Tenant, at its expense, shall comply with the
\nApprovals and with all laws, orders, ordinances, regulations and requirements of
\nRegulatory Authorities and directions made pursuant to law by any public officer
\nor officers which, in respect of the Leased Property or the use and occupancy
\nthereof or the abatement of any nuisance in, on or about the Leased Property,
\nshall impose any violation, order or duty upon Landlord or Tenant arising from
\n(a) Tenant’s occupancy, use or manner of use of the Leased Property, (b) any
\ninstallations, equipment or other property therein, (c) any cause or condition
\ncreated by or at the instance of Tenant, or (d) any breach of any of Tenant’s
\nobligations hereunder. Tenant shall pay to Landlord, as Additional Rent
\nhereunder, promptly upon being billed therefor, amounts equal to all costs,
\nexpenses, fines, penalties and damages which may be imposed upon or incurred by
\nLandlord by reason of or arising out of Tenant’s failure to fully and promptly
\ncomply with and observe the provisions of this Section. Tenant shall give prompt
\nnotice to Landlord of any notice that Tenant may receive of the violation of any
\nlaw, ordinance, order, regulation, or requirement of any public authority or
\ndirection of any public officer or official applicable to the Leased Property.<\/p>\n
6<\/p>\n
9. ALTERATIONS AND REPAIRS.<\/p>\n
9.1 Tenant’s Obligations to Repair and Maintain.<\/p>\n
(a) Tenant, at its sole cost and expense, throughout the term
\nof this Lease, shall keep and maintain in good working order and condition the
\nLeased Property, the Tenant Improvements, the equipment, fixtures and
\nappurtenances therein, and shall make all repairs and replacements, interior and
\nexterior, structural and non-structural, ordinary and extraordinary, in and to
\nthe Leased Property as and when needed to keep and maintain them in good working
\norder and condition. In addition, Tenant shall be responsible, at its sole cost
\nand expense, for making all repairs, wherever on or with respect to the Leased
\nProperty occurring, the need for which is caused by or arises out of (i) the
\nperformance or existence of any Tenant’s construction work or alterations, (ii)
\nthe moving of any property of Tenant in or out of the Property, and (iii) the
\nacts, omission, neglect, improper conduct or other cause of Tenant or any of its
\npermitted sublessees, or its or their employees, agents, contractors, visitors,
\nlicensees or invitees.<\/p>\n
(b) All repairs, maintenance and replacements which Tenant is
\nresponsible for pursuant to this Section shall be performed in accordance with
\nthe requirements of this Article. If Tenant fails to make any repairs,
\nrestorations or replacements for which Tenant is responsible under this Lease,
\nLandlord, after notice to Tenant and reasonable opportunity to do so, except in
\nan emergency when no notice shall be required, may (but shall not be obligated
\nto) make same and Landlord’s costs of doing so shall be collectible as
\nAdditional Rent hereunder and shall be paid by Tenant to Landlord within five
\n(5) days after rendition of Landlord’s bill or statement therefor.<\/p>\n
9.2 Limitation in Liability. Except as otherwise may be expressly
\nprovided in this Lease, Landlord shall have no liability to Tenant, nor shall
\nTenant’s covenants and obligations under this Lease be reduced or abated in any
\nmanner whatsoever by reason of any inconvenience, annoyance, interruption or
\ninjury to business arising from Landlord’s making any repairs or changes which
\nLandlord is required or permitted by this Lease, or required by law, to make in
\nor to any portion of the Property.<\/p>\n
9.3 Tenant Changes. Tenant shall make no alterations, decorations,
\ninstallations, additions or improvements in or to the Leased Property.<\/p>\n
9.4 Mechanic’s Lien.<\/p>\n
(a) Tenant will not do any act or suffer any act which will,
\nin any way, encumber the title of Landlord (or Tenant) in and to the Leased
\nProperty nor will the interest or estate of Landlord or Tenant in the Leased
\nProperty be in any way subject to any claim by way of lien or encumbrance,
\nwhether by operation of law or by virtue of any express or implied contract by
\nTenant. Tenant will not suffer or permit any liens to be filed against the
\nLeased Property, or any part thereof, by reason of any work, labor, services or
\nmaterials done for, or supplied, or claimed to have been done for, or supplied
\nto Tenant, or anyone holding the Leased<\/p>\n
7<\/p>\n
Property, or any part thereof, through or under Tenant. If any such lien is at
\nany time filed against the Leased Property, Tenant will cause the same to be
\ndischarged of record within ten (10) days after the date of filing the same, by
\neither payment, deposit or bonding and if Tenant shall fail to do so, then, in
\naddition to any other right or remedy of Landlord, Landlord may, but shall not
\nbe obligated to, procure the discharge of the same either by paying the amount
\nclaimed to be due by deposit in court or bonding, and\/or Landlord will be
\nentitled, if Landlord so elects, to compel the prosecution of an action for the
\nforeclosure of such lien by the lien or and to pay the amount of the judgment,
\nif any, in favor of the lienor with interest, costs and allowances. Any amount
\npaid or deposited by Landlord for any of the aforesaid purposes, and all legal
\nand other expenses of Landlord, including reasonable attorneys’ fees, in
\ndefending such action or in procuring the discharge of such lien, with all
\nnecessary disbursements in connection therewith, will become due and payable as
\nAdditional Rent on the date of payment or deposit as the case may be.<\/p>\n
(b) Nothing in this Lease shall be deemed to be, or construed
\nin any way as constituting, the consent or request of Landlord, express or
\nimplied by inference or otherwise, to any person, firm or corporation for the
\nperformance of any labor or the furnishing of any materials for any
\nconstruction, rebuilding, alteration or repair of or to the Leased Property or
\nany part thereof, nor as giving Tenant any right, power or authority to contract
\nfor or permit the rendering of any services or the furnishing of any materials
\nwhich might in any way give rise to a right to file any lien against Landlord’s
\ninterest in the Leased Property.<\/p>\n
10. SIGNS. Tenant may maintain its currently existing exterior and
\ninterior signs on the Leased Property; provided, however, that such signs are
\nconsistent with the Approvals and comply with all laws, ordinances and
\nregulations of Regulatory Authorities.<\/p>\n
11. ACCESS TO THE PROPERTY. Tenant shall permit Landlord or its agents
\nto enter the Leased Property, at reasonable times, for the purpose of inspecting
\nthe Leased Property; provided, however, that Landlord shall be under no
\nobligation to so inspect. Landlord agrees not to interfere with Tenant’s
\nbusiness operations in exercising its rights hereunder and to give Tenant prior
\nnotice of its exercise of such rights. Tenant is and shall be in exclusive
\ncontrol and possession of the Leased Property as provided herein, and Landlord
\nshall not in any event whatsoever be liable for any injury or damage to any
\nLeased Property or to any person happening on or about the Leased Property, nor
\nfor any injury or damage to the Leased Property, nor to any property of Tenant,
\nor of any other person located on in the Leased Property. The provisions hereof
\npermitting Landlord to enter and inspect the Leased Property are made for the
\npurpose of enabling Landlord to be informed as to whether Tenant is complying
\nwith the agreements, terms, covenants and conditions hereof and to do such acts
\nas Tenant shall fail to do.<\/p>\n
8<\/p>\n
12. ASSIGNMENT AND SUBLETTING.<\/p>\n
12.1 Prohibited Transfers.<\/p>\n
(a) Tenant shall not, whether voluntarily or involuntarily, by
\noperation of law or otherwise, without Landlord’s consent, which Landlord may
\nwithhold in its sole and absolute discretion, (i) assign or otherwise transfer
\nthis Lease or any interest therein or offer or advertise to do so, except as set
\nforth in Section 12.3 below; and (ii) sublet or suffer or permit the Leased
\nProperty or any part thereof to be used, occupied or utilized by anyone other
\nthan Tenant or offer or advertise to do so, or (iii) mortgage, pledge, encumber
\nor otherwise hypothecate (any of which shall be referred to as a “Mortgaging”)
\nthis Lease or the Leased Property or any part thereof in any manner whatsoever.<\/p>\n
(b) The consent by Landlord to any assignment, subletting or
\nmortgaging shall not in any manner be construed to relieve Tenant, or any
\nassignee or sublessee from obtaining Landlord’s prior express written consent to
\nany other or further assignment, subletting, or Mortgaging. In no event shall
\nany permitted sublessee assign or encumber its sublease or further sublet all or
\na portion of its sublet space, or otherwise suffer or permit the sublet space or
\nany part thereof to be used or occupied by others.<\/p>\n
12.2 Transfers of Interests in Entities. For purposes of this Article,
\nthe transfer by any means of the legal or beneficial interests in either voting
\npower, capital or profits in Tenant or in any corporation, partnership or other
\nentity directly, or indirectly comprising Tenant, of the majority of the issued
\nand outstanding capital stock of any corporate Tenant or subtenant, or the
\ntransfer of a majority of the beneficial interest in any other entity
\n(partnership or otherwise) which is the Tenant or a subtenant, however
\naccomplished, whether in a single transaction or in a series of related or
\nunrelated transactions, shall be deemed an assignment of this Lease or a
\nsublease, as the case may be. Tenant agrees to furnish Landlord with such
\ninformation as Landlord may reasonably request from time to time in order to
\nassure Landlord that neither Tenant nor any permitted subtenant have violated
\nthe provisions of this Article. Notwithstanding the foregoing, the trading of
\nTenant’s shares on a public stock market shall not be a transfer or assignment
\nin violation of this Article.<\/p>\n
12.3 Limited-Right of Assignment. Tenant’s interest in this lease may
\nbe assigned to the buyer of the Business on (but not prior to) the closing date
\nof the sale of the Business; provided, that (x) Landlord shall have received no
\nless than ten (10) days prior notice of such assignment and (y) assignee
\nacknowledges in writing that assignee shall vacate the Property by no later than
\nApril 30, 2002 unless this Lease is extended to June 30, 2002 pursuant to
\nSection 15.1(b) below, in which event assignee shall vacate the Property by no
\nlater than June 30, 2002. Tenant shall not be relieved of any of its obligations
\nunder this Lease by virtue of any assignment and shall remain fully liable
\nhereunder.<\/p>\n
9<\/p>\n
13. CONDEMNATION. Each party shall give to the other prompt notice of
\nany actual or threatened taking or condemnation of all or any portion of any of
\nthe Leased Property. If, during the Term of this Leased Lease, there shall occur
\na taking or condemnation of all or any substantial portion of the Property, or a
\ndeed has been given in lieu thereof, or, if there is pending any proceeding in
\ncondemnation or eminent domain for the taking or use of all or any substantial
\npart of the Leased Property, then, in such event, this Lease shall terminate, in
\nwhich event neither party shall have any further rights or obligations hereunder
\nexcept as expressly set forth to the contrary herein. If there is a condemnation
\nor taking of any Leased Property which is not deemed to be substantial, this
\nLease shall continue in effect. In any event, all damages awarded for such
\ntaking under the power of eminent domain, whether for the whole or a part of the
\nLeased Property, shall belong to and be the property of Landlord, whether such
\ndamages shall be awarded as compensation for diminution in value to the
\nleasehold or to the fee; provided, however, that Tenant shall, to the extent
\nthat same shall not reduce Landlord’s award, be entitled to any award from the
\ncondemnor for loss of business and depreciation to, and cost of removal of,
\nstock and fixtures. The terms “condemnation,” “taking” or similar terms as
\nherein used shall mean the acquisition by a public or quasi-public authority
\nhaving the right to take the same by condemnation or by power of eminent domain
\nor otherwise, regardless of whether such taking is the result of actual
\ncondemnation or of voluntary conveyance.<\/p>\n
14. ENVIRONMENTAL COMPLIANCE.<\/p>\n
14.1 Environmental Compliance.<\/p>\n
(a) Tenant, at its expense, shall comply with all applicable
\nEnvironmental Laws with respect to its use and occupancy of the Leased Property;
\nprovided, however, that nothing herein contained shall be construed as limiting
\nor waiving any of Corum’s obligations as seller under the Agreement.<\/p>\n
(b) No Hazardous Materials, shall be handled, upon, about,
\nabove or beneath the Leased Property or any portion thereof by or on behalf of
\nTenant, or its contractors, clients, officers, directors, employees, agents, or
\ninvitees. Any such Hazardous Materials so Handled shall be known as Tenant’s
\nHazardous Materials. Notwithstanding the foregoing, normal quantities of
\nTenant’s Hazardous Materials customarily used in connection with the Permitted
\nUse may be Handled at the Leased Property. Tenant’s Hazardous Materials
\npermitted by the foregoing sentence shall be Handled at all times in compliance
\nwith the manufacturer’s instructions therefor and all applicable Environmental
\nLaws. Tenant agrees to execute affidavits, representations, and the like from
\ntime to time at Landlord’s request stating Tenant’s best knowledge and belief
\nregarding the presence of Hazardous Materials on the Leased Property.<\/p>\n
(c) Landlord and Tenant shall immediately notify the other if
\nit receives: (i) any notices or correspondence from the NJDEP (as defined below)
\nalleging the presence or release of any Hazardous Material in, on, around or
\nunder the Leased Property; or (ii) any information suggesting or demonstrating
\nthe release or presence of any Hazardous Material in, on, around or under the
\nLeased Property.<\/p>\n
10<\/p>\n
14.2 ISRA.<\/p>\n
(a) Landlord and Tenant acknowledge that the Permitted Use may
\ncause the Leased Property to be subject to the provisions of the Industrial Site
\nRecovery Act, N.J.S.A. 13:1K-6 et seq. and the regulations promulgated
\nthereunder and any successor legislation and regulations (“ISRA”). Except as set
\nforth in the Agreement to be obligations of Corum, as seller, Tenant shall, at
\nTenant’s own expense, make all submissions to, provide all information to, and
\ncomply with all requirements of, the Industrial Site Evaluation Element (the
\n“Element”) of the New Jersey Department of Environmental Protection (“NJDEP”) in
\nconnection with any ISRA compliance required as a result of Tenant’s use of the
\nLeased Property. Tenant shall provide copies to Landlord of all materials
\nsubmitted to and received from NJDEP pursuant to ISRA.<\/p>\n
(b) Tenant’s obligations under this Article shall arise if
\nthere is any “closing operations” or “transferring ownership or operations” of
\nan “industrial establishment” as defined by ISRA, at the Leased Property if
\ntriggered by Tenant or by a “change in ownership” of Tenant as defined by ISRA;
\nprovided however, that as a result of the closing under the Agreement Tenant
\nshall not be obligated to comply with ISRA separately from Corum’s pending
\napplication, unless required to do so by NJDEP, but Tenant shall file a General
\nInformation Notice (GIN) under the existing ISRA case number, if necessary.
\nPrior to the expiration or sooner termination of this Lease, Tenant shall
\ndeliver to Landlord evidence of compliance with ISRA, or evidence that no
\ncompliance with ISRA is required, in the form of (i) a nonapplicability
\ndetermination, (ii) a de minimis quantity exemption as set forth in Section 9 of
\nISRA, (iii) an approved a “No Further Action Letter” as defined by ISRA and
\nissued by NJDEP, or (iv) a letter from NJDEP stating that an approved “Remedial
\nAction Workplan” (as described in (c) below) has been completed and the Leased
\nProperty is in full compliance with ISRA.<\/p>\n
(c) Should NJDEP determine that a “Remedial Action Workplan”
\nas defined under ISRA, be prepared and\/or that a “remediation”, as defined under
\nISRA, be undertaken because of any spills or discharges of Hazardous Materials
\nat the Leased Property which occur during the Term of this Lease and which
\nspills are caused by Tenant, its agents, employees or independent contractors,
\nthen Tenant shall, at Tenant’s own expense, prepare and submit the required
\ninformation and provide the necessary “funding source” if required, as defined
\nby ISRA, and carry out the approved remediation.<\/p>\n
14.3. Indemnification. Tenant shall indemnify, defend and hold harmless
\nLandlord from and against any and all claims, actions, liabilities, losses,
\npenalties, damages, fines, costs and expenses (including, without limitation,
\nthe reasonable fees and expenses of counsel, engineers, other professionals or
\nexperts, including those to enforce this indemnity) of any kind whatsoever,
\nforeseen or unforeseen, which Landlord may incur by reason of Tenant’s failure
\nto fulfill Tenant’s obligations under this Article.<\/p>\n
11<\/p>\n
14.4 Defined Terms. The following terms have the meanings ascribed
\nthereto:<\/p>\n
Environmental Laws. All now and hereafter existing statutes,
\nlaws, ordinances, codes, regulations, rules, rulings, orders, decrees,
\ndirectives, policies and requirements by any Regulatory Authority regulating,
\nrelating to, or imposing liability or standards of conduct concerning public
\nhealth and safety or the environment, including, without limitation, the
\nIndustrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq.) (“ISRA”), the Spill
\nCompensation and Control Act (N.J.S.A. 58:10-23.11 et seq.) (“Spill Act”), the
\nSolid Waste Management Act (N.J.S.A. 13:1E-1 et seq.), the Resource and
\nConservation Recovery Act (Section 6901 et seq.) (“RCRA”), the Comprehensive
\nEnvironmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601
\net seq.) (“CERCLA”).<\/p>\n
Handle. Any installation, handling, generation, storage,
\ntreatment, use, disposal, discharge, release, manufacture, refinement, presence,
\nmigration, emission, abatement, removal, transportation, or any other activity
\nof any type in connection with or involving Hazardous Substances. The term
\ndefined shall also include other verb forms of the verb “to handle”.<\/p>\n
Hazardous Materials or Hazardous Substances. Any toxic
\nsubstances, hazardous wastes, or hazardous substances, as defined in or pursuant
\nto any Environmental Law.<\/p>\n
14.5 Survival. Tenant’s obligations and liabilities under this Article
\nshall survive the expiration or earlier termination of this Lease.<\/p>\n
15. SURRENDER BY TENANT AT END OF TERM.<\/p>\n
15.1 Termination.<\/p>\n
(a) This Lease may be terminated upon mutual agreement of the
\nparties.<\/p>\n
(b) This Lease shall terminate: (i) on April 30, 2002 unless
\nTenant shall have given notice to Landlord on or before March 31, 2002, that
\nTenant shall have entered into a contract to sell the Business as a going
\nconcern and Tenant requires the extension of this Lease to effectuate an orderly
\ntransfer of the assets of Tenant to the buyer of the Business, in which event
\nthe Expiration Date of this Lease shall be extended to June 30, 2002, or (ii) in
\nthe event that this Lease is otherwise terminated in accordance with its terms,
\nin which event the Expiration Date shall be the date on which this Lease is so
\nterminated.<\/p>\n
15.2 Surrender by Tenant at End of Term. On the Expiration Date, or the
\nearlier termination hereof, unless resulting from the Closing under the
\nAgreement, Tenant shall peaceably and quietly surrender and deliver up to
\nLandlord possession of the Property, vacant and broom clean, in as good
\ncondition and repair as at the Commencement Date, ordinary wear and tear and
\ndamage by condemnation excepted. By the Expiration Date or earlier termination
\nhereof, Tenant shall remove from the Leased Property all personal property and
\nchattels of Tenant.<\/p>\n
12<\/p>\n
15.3 Landlord’s Right to Remove. If Tenant fails to remove Tenant’s
\npersonal property at such time as Landlord may be entitled to re-enter and take
\npossession of the Leased Property pursuant to any provision of this Lease,
\nLandlord may remove Tenant’s personal property from the Leased Property and to
\ndispose of it or place it in a reasonably safe place of storage, such moving,
\ndisposal and storage to be at the sole cost and expense of Tenant. Tenant
\ncovenants and agrees to pay to Landlord all reasonable expenses which Landlord
\nincurs for such removal, demolition, disposal and storage. Alternatively, at the
\noption of Landlord, Tenant shall be deemed to have abandoned any or all of
\nTenant’s personal property and the same may be disposed of or shall become the
\nproperty of Landlord.<\/p>\n
15.4 Holdover Rent. If Tenant holds over or remains in possession of
\nthe Leased Property after the expiration of the Term or after any earlier
\ntermination of this Lease, such holding over or continued possession shall
\ncreate only a month to month tenancy. Tenant recognizes and agrees that (i) the
\ndamage to Landlord resulting from any failure by Tenant to surrender the Leased
\nProperty timely will be substantial, will exceed the amount of monthly Rent
\ntheretofore payable hereunder, and will be impossible of accurate measurement,
\nand (ii) the lack of minimum rent payable hereunder has been established in
\nconjunction with and as part of the transactions contemplated by the Agreement,
\nand absent the Agreement, Landlord would not have agreed to lease the Leased
\nProperty to Tenant in consideration of payment of only Additional Rent payable
\nhereunder. Therefore, Tenant shall pay rent for the period from the expiration
\nor sooner termination of the Term of this Lease through and including the date
\nwhen Tenant shall actually vacate and surrender the Leased Property in
\naccordance with and as required by the provisions of this Lease, equal to the
\naggregate of (a) monthly rent at the rate of $100,000 per month (“Minimum
\nHoldover Rent”), which the parties acknowledge is reasonable and fair
\ncompensation for the use of the Leased Property and (b) Additional Rent
\nspecified in this Lease. The resulting month to month tenancy may be terminated
\nat any time by either party as of the last day of any calendar month on not less
\nthan thirty (30) days’ written notice given to the other party.<\/p>\n
16. EVENT OF DEFAULT BY TENANT\/OTHER TENANT DEFAULTS.<\/p>\n
16.1 Events of Default. If during the Term there shall occur any of the
\nfollowing events (“Events of Default”):<\/p>\n
(a) If Tenant shall fail to pay Additional Rent within ten
\n(10) days after written notice from Landlord; or<\/p>\n
(b) In the event that Tenant shall fail to observe any other
\nrequirement, obligation, agreement, covenant or condition of this Lease, other
\nthan the Events of Default expressly set forth in Section 17.1(a), and any such
\nfailure shall continue for thirty (30) days after written notice from Landlord
\nspecifying the basis for such default, or if such failure cannot reasonably be
\nremedied within such time period, if Tenant shall not diligently commence to<\/p>\n
13<\/p>\n
remedy such failure within such thirty (30) day time period and thereafter
\nprosecute the same to completion with diligence;<\/p>\n
then, at any time following any of such Event of Default, Landlord, may give
\nTenant notice of termination of this Lease and take possession of the Property,
\nusing appropriate judicial process. The giving of such notice to Tenant shall
\nterminate Tenant’s right to possession of the Leased Property under this Lease
\nwithout discharging Tenant from any of its liabilities hereunder.<\/p>\n
16.2 Conditions Precedent. This Lease shall automatically terminate
\nwithout the requirement of any notice in the event that:<\/p>\n
(a) either party shall have become insolvent, or generally
\ndoes not pay its debts as they become due, or admits in writing its inability to
\npay its debts, or makes a deed of trust or assignment for the benefit of
\ncreditors; or<\/p>\n
(b) a petition in bankruptcy, insolvency, receivership,
\ndissolution or similar proceeding shall have been commenced voluntarily by a
\nparty; or<\/p>\n
(c) any such proceeding shall have been commenced
\ninvoluntarily against a party and the same shall not have been dismissed or
\neffectively stayed within sixty days from the commencement thereof.<\/p>\n
16.3 Right of Re-Entry If Landlord elects to terminate Tenant’s right
\nto possession of the Leased Property under Section 16.1 following an Event of
\nDefault or under Section 16.2, Landlord shall re-enter and take possession of
\nthe Leased Property (using appropriate judicial process), and Tenant shall be
\nobligated to pay to Landlord upon demand, and Landlord shall be entitled to
\nrecover of and from Tenant, (a) all Rent payable to the date of termination of
\nTenant’s right to possession, plus (b) the cost to Landlord of all reasonable
\nlegal and other expenses and costs (including attorney’s fees) incurred by
\nLandlord in obtaining possession of the Leased Property, plus (c) any reasonable
\ncosts and expenses incurred in enforcing any provision of this Lease.<\/p>\n
17. SUBORDINATION.<\/p>\n
17.1 Subordination. This Lease and all rights of Tenant hereunder are
\nsubject and subordinate to all mortgages which may now or hereafter affect the
\nProperty (any of the foregoing being herein referred to as a “Superior
\nMortgage”) whether or not such Superior Mortgages shall also cover other lands
\nand\/or buildings and\/or leases, to each and every advance made or hereafter to
\nbe made under such Superior Mortgages, and to all renewals, modifications,
\nconsolidations, replacements and extensions of such Superior Mortgages. This
\nArticle shall be self-operative and no further instrument of subordination shall
\nbe required. In confirmation of such subordination, Tenant shall promptly
\nexecute, acknowledge and deliver any certificate that Landlord, the holder of
\nany Superior Mortgage, or any of their respective successors in interest may
\nreasonably request to evidence such subordination. If Tenant fails to execute,
\nacknowledge<\/p>\n
14<\/p>\n
or deliver any such instruments within seven (7) days after request therefor,
\nTenant hereby irrevocably constitutes and appoints Landlord as Tenant’s
\nattorney-in-fact, coupled with an interest, to execute any such certificate or
\ncertificates for and on behalf of Tenant.<\/p>\n
17.2 Attornment. At the option of Landlord or any successor landlord,
\nincluding the holder of any Superior Mortgage or the purchaser of the mortgaged
\npremises in foreclosure who shall succeed to the Landlord’s interest herein
\n(collectively the “Successor Landlord”), Tenant agrees that neither the
\nforeclosure of a Superior Mortgage, nor the institution of any suit, action,
\nsummary or other proceeding against the Landlord or any Successor Landlord, nor
\nany foreclosure proceeding brought by the holder of any such Superior Mortgage
\nto recover possession of the premises covered thereby, shall by operation of the
\nlaw or otherwise result in cancellation or termination of this Lease or the
\nobligations of the Tenant hereunder, and at the option and upon the request of
\nany such Successor Landlord, Tenant covenants and agrees to attorn to and
\nrecognize such Successor Landlord as Tenant’s landlord under this Lease and
\nshall promptly execute and deliver any instrument that such Successor Landlord
\nmay reasonably request to evidence such attornment. Upon such attornment, this
\nLease shall continue in full force and effect as a direct Lease between the
\nSuccessor Landlord and Tenant upon all of the terms, conditions and covenants as
\nare set forth in this Lease except that the Successor Landlord shall not:<\/p>\n
(a) be liable for any previous act or omission of Landlord
\nunder this Lease;<\/p>\n
(b) be subject to any offset not expressly provided for in
\nthis Lease, which theretofore shall have accrued to Tenant against Landlord; and<\/p>\n
(c) be bound by any previous modification of this Lease or by
\nany previous prepayment of more than one month’s Rent, unless such modification
\nor prepayment shall have been expressly approved in writing by the holder of the
\nSuperior Mortgagee, through or by reason of which the Successor Landlord shall
\nhave succeeded to the rights of Landlord under this Lease.<\/p>\n
18. QUIET ENJOYMENT. Landlord covenants that Tenant, on paying the Rent
\nand performing the covenants and conditions contained in this Lease, shall and
\nmay peaceably and quietly have, hold and enjoy the Leased Property for the Term
\nof this Lease, subject to the terms and conditions of this Lease.<\/p>\n
19. CERTIFICATES. Tenant and Landlord each agree at any time and from
\ntime to time during the Term of this Lease, within 30 days after written request
\nfrom Landlord or Tenant, as applicable, to execute, acknowledge and deliver to
\nthe other party or to such third person as requested by such other party, a
\nstatement in writing certifying that this Lease is unmodified and in full force
\nand effect (or if there have been modifications, that the same is in full force
\nand effect as modified and stating the modifications), and the dates to which
\nthe Additional Rent has been paid in advance, if any, and stating whether or
\nnot, to the best of such certifying party’s knowledge, the other party is in
\ndefault in the performance of any covenant,<\/p>\n
15<\/p>\n
agreement or condition contained in this Lease, and, if so, specifying each such
\ndefault of which such certifying party may have knowledge. Such third person
\nshall have the right to rely upon the contents of any such written statement of
\nTenant or Landlord.<\/p>\n
20. NOTICES. Unless otherwise notified in writing to the contrary, any
\nnotice, election or request required or permitted by the terms hereof to be
\ngiven by any party hereto shall be effectively delivered for all purposes if
\npersonally delivered or sent by certified or registered mail, return receipt
\nrequested, with first class postage prepaid, or by overnight delivery service
\nwith proof of delivery, and if directed to Landlord, properly addressed to it at
\nthe address for the Landlord set forth in the preamble of this Lease, with a
\ncopy of such notice to the Landlord’s attorneys, Wolff & Samson, P.A., 5 Becker
\nFarm Road, Roseland, New Jersey 07068, Attn: Jeffrey M. Gussoff, Esq., and if
\ndirected to Tenant, properly addressed to it at the address for the Tenant set
\nforth in the preamble of this Lease, with a copy of such notice to the Tenant’s
\nattorneys, Hoagland, Longo, Moran, Dunst & Doukas, 40 Paterson Street, P.O. Box
\n480, New Brunswick, New Jersey 08903, Attn: Gary Hoagland, Esq. Every notice,
\ndemand, request or other communication hereunder shall be deemed to have been
\ngiven or served (a) at the time that the same shall be deposited with the
\novernight courier or deposited in the United States mails, postage prepaid, in
\nthe manner aforesaid, or (b) when received if delivered personally or sent by
\nfacsimile transmission.<\/p>\n
21. INTERPRETATION. Unless otherwise specified, the rules of
\nconstruction set forth in this Article shall be applicable for all purposes of
\nthis Lease and all documents or instruments supplemental hereto:<\/p>\n
(a) All references herein to numbered Articles, Sections,
\nSubsections, Schedules or Exhibits are references to the Articles, Sections and
\nSubsections hereof, and the Schedules and Exhibits attached hereto. The terms
\n“include,” “including” and similar terms shall be construed as if followed by
\nthe phrase “without being limited to”. Singular words include the plural and
\nplural words include the singular. The term “person” shall include natural
\npersons, firms, trusts, partnerships, corporations and any other public and
\nprivate legal entities. The term “provisions” when used with respect hereto or
\nto any other document or instrument, shall be construed as if preceded by the
\nphrase “terms, covenants, agreements, requirements, conditions and\/or.” The
\nterms “hereto,” “herein,” “hereof,” “hereunder” and similar terms shall refer to
\nthis Lease in its entirety, unless the context clearly indicates otherwise.
\nArticle, Section, Subsection, Schedule and Exhibit captions are used for
\nconvenience and reference only and in no way define, limit or affect the
\nconstruction of the provisions hereof. No inference in favor of any party shall
\nbe drawn from the fact that such party has drafted any portion hereof. All
\nrecitals set forth in, and all schedules and exhibits to, this Lease are
\nincorporated by reference in this Lease. The terms “lease” or “sublease” shall
\nmean “lease, sublease, tenancy, subtenancy, letting, subletting, license or
\nsublicense” and the term “tenant” shall mean “subtenant, lessee, sublessee,
\nlicensee, sublicensee or occupant.” Words importing any gender or number shall
\nbe deemed to refer to the masculine, feminine, neuter, singular or plural as the
\nidentity of the person or item requires. The term “the date hereof” or like term
\nshall mean the date when a fully executed copy of this Lease has been delivered
\nto both Landlord and Tenant (or their counsel).<\/p>\n
16<\/p>\n
(b) If any provision of this Lease is held to be illegal,
\ninvalid or unenforceable, and if the rights or obligations of any party hereto
\nunder this Lease will not be materially and adversely affected thereby, such
\nprovision will be fully severable, this Lease will be construed and enforced as
\nif such an illegal, invalid or unenforceable provision had never comprised a
\npart hereof, and the remaining provisions of this Lease will remain in full
\nforce and effect and will not be affected by the illegal, invalid or
\nunenforceable provision or by its severance.<\/p>\n
(c) All of the terms and provisions of this Lease shall be
\ndeemed and construed to be “covenants” and “conditions” to be performed by the
\nrespective parties as though words specifically expressing or importing
\ncovenants and conditions were used in each separate term and provision hereof.<\/p>\n
(d) The parties hereto agree that they have mutually prepared
\nand reviewed this Lease and no rules of construction shall be adversely applied
\nagainst either as the preparer of this Lease.<\/p>\n
(e) This Lease may be executed simultaneously in a number of
\ncounterparts, each of which shall be deemed an original, but all of which
\ntogether shall constitute one and the same instrument.<\/p>\n
22. BROKERAGE REPRESENTATION. Tenant and Landlord each represents and
\nwarrants to the other that it knows of no person who is entitled to a commission
\nor sum in lieu thereof in connection with the execution of this Lease or the
\ncreation of the tenancy effected by this Lease, and each agrees to save, defend
\nand indemnify the other from and against any claims, costs or damages
\nattributable to any misrepresentation or breach of warranty by the indemnitor
\nhereunder.<\/p>\n
23. ENTIRE AGREEMENT\/ NO WAIVER.<\/p>\n
23.1 Entire Agreement. This Lease, and the exhibits attached hereto,
\nconstitute the entire agreement between the parties with respect to the subject
\nmatter hereof, and supersede any and all prior communications or writings with
\nrespect thereto and there are no oral or written understandings, representations
\nor commitments of any kind, express or implied, which are not expressly set
\nforth herein or in the Agreement or on the instruments delivered in connection
\nwith the closing under the Agreement.<\/p>\n
23.2 Modifications Must be in Writing. No oral or written modification
\nof this Lease by any officer, agent or employee of Tenant or Landlord, either
\nbefore or after execution of this Lease, shall be of any force or effect unless
\nsuch modification is in writing and signed by both parties.<\/p>\n
17<\/p>\n
23.3 No Waiver of Future Violations. The waiver of any breach or
\nfailure to enforce any of the terms, covenants or conditions of this Lease shall
\nnot in any way (a) affect, limit, modify or waive the future enforcement of such
\nterms, covenants or conditions, or (b) constitute a waiver of any breach or
\nfailure of any other terms, covenants or conditions, any course of dealing or
\ncustom of the trade notwithstanding, or (c) prevent a subsequent act, which
\nwould have originally constituted a breach or violation, from having all the
\nforce and effect of an original breach or violation.<\/p>\n
23.4 No Waiver Upon Receipt of Rent. The receipt by Landlord of Rent
\nwith knowledge of the breach of any covenant of this Lease shall not be deemed a
\nwaiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
\namount than the monthly Rent herein stipulated shall be deemed to be other than
\non account of the earliest stipulated Rent, nor shall any endorsement or
\nstatement on any check or any letter accompanying any check or payment of Rent
\nbe deemed an accord and satisfaction, and Landlord may accept and deposit such
\ncheck or payment without prejudice to Landlord’s right to recover the balance of
\nsuch Rent or pursue any other remedy in this Lease provided.<\/p>\n
23.5 Force Majeure. If Landlord or Tenant shall be delayed, hindered in
\nor prevented from the performance of any acts required hereunder, other than the
\npayment of Rent, or timely surrender of the Leased Property by Tenant, by reason
\nof Force Majeure, then performance of such acts shall be excused for the period
\nof the delay and the period for the performance of any such act shall be
\nextended for a period equal to the period of such delay. The term “Force
\nMajeure” means any cause beyond a party’s reasonable control, including Acts of
\nGod, strikes, blackouts, failure of power, labor troubles, shortage of materials
\nor services, governmental preemption in connection with a national or local
\nemergency, riots, insurrection, the act or failure to act of the other party, or
\nby reason of any rule, order or regulation of any governmental agency or by
\nreason of the conditions of supply and demand which have been or are affected by
\nwar, hostilities or similar emergency.<\/p>\n
23.6 Further Assurances. From time to time, at the Landlord’s or the
\nTenant’s reasonable request and without further consideration, the Tenant or the
\nLandlord, as the case may be, shall execute and deliver such other instruments
\nand take such other actions as the Landlord or the Tenant may request in order
\nto more effectively convey, lease to, invest in the Tenant and to put the Tenant
\nin possession and operating control of all or any part of the Leased Property,
\nand to otherwise consummate the transactions contemplated hereby.<\/p>\n
23.7 Binding Effect. This Lease shall bind and inure to the benefit of
\nand be enforceable by the parties hereto, and their respective successors and
\nassigns.<\/p>\n
23.8 No Third Party Rights. This Lease shall not be construed to create
\nany rights under this Lease in any third party, whether as a third party
\nbeneficiary or otherwise. Nothing contained herein may be relied upon or
\nenforced by any person or entity other than the Landlord and the Tenant.<\/p>\n
18<\/p>\n
23.9 No Recording. None of the parties hereto shall have any right to
\nrecord or file this Lease or any memorandum or other document relating to this
\nLease prior to the Closing, except for a Notice of Settlement.<\/p>\n
24. NEW JERSEY LAW. This Lease shall be governed by and construed in
\naccordance with the laws of the State of New Jersey. Landlord and Tenant hereby
\nmutually waive their rights to trial by jury in any action, proceeding or
\ncounterclaim brought by either of the parties hereto against the other on any
\nmatters whatsoever arising out of or in any way connected with this Lease,
\nTenant’s use or occupancy of the Lease Property, and any claim of injury or
\ndamage. Tenant hereby waives, to the fullest extent permitted by law, the right
\nto interpose any counterclaim (other than compulsory counterclaims) in any
\nsummary proceeding instituted by Landlord against Tenant or in any action
\ninstituted by Landlord for unpaid Rent under this Lease.<\/p>\n
25. CONSENTS. In the event the Tenant claims or asserts that the
\nLandlord has violated or failed to perform a covenant of Landlord not to
\nunreasonably withhold or delay Landlord’s consent or approval, or in any case
\nwhere Landlord’s reasonableness in exercising its judgment is in issue, Tenant’s
\nsole remedy shall be an action for specific performance, declaratory judgment or
\ninjunction and in no event shall Tenant be entitled to any money damages for a
\nbreach of such covenant and in no event shall Tenant claim or assert any claims
\nfor money damages in any action or by way of set-off, defense or counterclaim
\nand Tenant hereby specifically waives the right to any money damages or other
\nremedies. Whenever Landlord’s consent or approval is required under this Lease,
\nand this Lease does not specify that such consent or approval shall not be
\nunreasonably withheld or delayed, Landlord may determine whether to grant or
\nwithhold such consent or approval in its sole and absolute discretion,
\nregardless of whether such refusal to consent or approve may be deemed
\narbitrary. Whenever this Lease requires Landlord’s consent or approval, Tenant
\nshall reimburse Landlord on demand as a condition to granting such consent or
\napproval any costs that may be incurred in connection with reviewing the request
\nfor consent or approval, including, without limitation, reasonable attorneys’
\nfees.<\/p>\n
26. LIMITATION OF LIABILITY AND INDEMNIFICATION.<\/p>\n
26.1 Limitation on Liability. Landlord shall not be liable to Tenant
\nfor (a) any loss, injury or damage to property of Tenant or for any loss of or
\ndamage to any property of Tenant or others by theft or action by a third party,
\n(b) any injury or damage to persons or property resulting from fire, explosion,
\nfalling plaster, steam, gas, electricity, water, rain or snow leaks from any
\npart of the Leased Property or from the pipes, appliances or plumbing works or
\nfrom the roof, street or subsurface or from any other place or by dampness or by
\nany other cause of whatsoever nature, (c) any of the foregoing damage, loss or
\ninjury caused by operations in construction of any private, public or
\nquasi-public work, or (d) any damage, loss or injury caused by or attributable,
\nin whole or in part, to any latent defect in the Leased Property.<\/p>\n
19<\/p>\n
26.2 Indemnification. Tenant shall indemnify and hold harmless Landlord
\nand all Superior Mortgagees and its and their respective partners, directors,
\nofficers, agents and employees from and against any and all claims, actions,
\nliabilities, losses, penalties, damages, costs and expenses (including, without
\nlimitation, the reasonable fees and expenses of counsel, including those to
\nenforce this indemnity) (collectively the “Damages”), arising from or in
\nconnection with:<\/p>\n
(a) the conduct or management of the Leased Property, or any
\nwork or thing whatsoever done, or any condition created in or about the Leased
\nProperty during the term of this Lease or any holdover period;<\/p>\n
(b) any act, omission or negligence of Tenant or any of its
\npermitted subtenants or permitted licensees or its or their partners, directors,
\nofficers, agents, employees or contractors;<\/p>\n
(c) any accident, injury or damage whatever (unless caused
\nsolely by Landlord’s negligence) occurring in, at or upon the Leased Property;
\nand<\/p>\n
(d) any breach or default by Tenant in the full and prompt
\npayment and performance of Tenant’s obligations under this Lease.<\/p>\n
In case any action or proceeding be brought against Landlord and\/or any Superior
\nMortgagee and\/or its or their partners, directors, officers, agents and\/or
\nemployees by reason of any such claim, Tenant, at its expense, upon notice from
\nLandlord or such Superior Mortgagee, shall resist and defend such action or
\nproceeding by counsel reasonably satisfactory to Landlord and\/or such Superior
\nMortgagee. The provisions of this Section 26.2 shall survive the expiration or
\nearlier termination of this Lease.<\/p>\n
26.3 Landlord for the Time Being. The obligations of Landlord under
\nthis Lease shall not be binding upon Landlord named herein after the sale,
\nconveyance, assignment or transfer by such Landlord (or upon any subsequent
\nlandlord after the sale, conveyance, assignment or transfer by such subsequent
\nlandlord) of the Leased Property, and in the event of any such sale, conveyance,
\nassignment or transfer, Landlord shall be and hereby is entirely freed and
\nrelieved of all covenants and obligations of Landlord hereunder, and it shall be
\ndeemed and construed without further agreement between the parties or their
\nsuccessors in interest, or between the parties and the purchaser, grantee,
\nassignee or other transferee that such purchaser, grantee, assignee or other
\ntransferee has assumed and agreed to carry out any and all covenants and
\nobligations of Landlord hereunder. In no event shall any guardian, trustee,
\nadvisor, beneficiary, director, officer, partner, employee, owner or principal
\nor any partner or other person or entity comprising the Landlord (collectively,
\nthe “Parties”), be liable for the performance of Landlord’s obligations under
\nthis Lease. Tenant shall look solely to Landlord to enforce Landlord’s
\nobligations hereunder and shall not seek any damages against any of the Parties.
\nThe liability of Landlord for Landlord’s obligations under this Lease shall not
\nexceed and shall be limited to Landlord’s interest in the Leased Property and
\nTenant shall not look to any other property or<\/p>\n
20<\/p>\n
assets of Landlord or the property or assets of any of the Parties in seeking
\neither to enforce Landlord’s obligations under this Lease or to satisfy a
\njudgment for Landlord’s failure to perform such obligations.<\/p>\n
27. AUTHORITY.<\/p>\n
27.1 Landlord’s Authority. Landlord covenants that Landlord is a
\ncorporation duly organized and validly existing under the laws of the State of
\nDelaware. This Lease is, and all other agreements and documents to be delivered
\nby the Landlord hereunder, when executed and delivered by the Landlord in
\naccordance with the provisions hereof and thereof, will be, valid and binding
\nobligations of the Landlord enforceable in accordance with their respective
\nterms, except as the same may be limited by bankruptcy, insolvency, moratorium,
\nreorganization or other laws of general applicability relating to or affecting
\nthe enforcement of creditors’ rights generally or by general principles of
\nequity.<\/p>\n
27.2 Tenant’s Authority. Tenant covenants that Tenant is a corporation
\nduly organized and validly existing under the laws of the State of New Jersey,
\nand that Tenant is duly authorized to enter into this Lease. This Lease is, and
\nall other agreements and documents to be delivered by Tenant hereunder are valid
\nand binding obligations of Tenant enforceable in accordance with their
\nrespective terms, except as the same may be limited by bankruptcy, insolvency,
\nmoratorium, reorganization or other laws of general applicability relating to or
\naffecting the enforcement of creditors’ rights generally or by general
\nprinciples of equity.<\/p>\n
IN WITNESS WHEREOF, the parties have caused this Lease to be executed
\nby their duly authorized representations and, if applicable, and attested, all
\nas of the day and year first above written.<\/p>\n
HIGHLAND PACKAGING LABS, INC.<\/p>\n
By: ____________________________
\n Name:
\n Title:<\/p>\n
IMCLONE SYSTEMS INCORPORATED<\/p>\n
By: ____________________________
\n Name:
\n Title:<\/p>\n
21<\/p>\n
EXHIBIT A – LEASED PROPERTY<\/p>\n
The Leased Property consists of all of the property except for the hatched area
\nmarked on the diagram below:<\/p>\n
[GRAPHIC OF LEASED PROPERTY]<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7835],"corporate_contracts_industries":[9405],"corporate_contracts_types":[9601,9579],"class_list":["post-41772","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-imclone-inc","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-land__nj","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41772","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41772"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41772"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41772"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41772"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}