Attached files
Exhibit
10.10
LEASE
THIS
LEASE AGREEMENT, made this 1st day of September, 2009 between ENTERPRISE
DEVELOPMENT CENTER, at the New Jersey Institute of Technology, having an office
at 211 Warren Street, Newark, New Jersey, 07103 (hereinafter referred to as the
"Landlord"), and BioNeutral Group, Inc a Nevada corporation having an office at
211 Warren Street, Newark, NJ 07103, hereinafter referred to as the
"Tenant").
WITNESSETH:
1. DEMISED
PREMISES; RESERVATION OF SPACE; TERM
1.1 In consideration of the rents, mutual covenants and agreements hereinafter
set forth, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, for a term of twelve months ["Term" (as the same may be adjusted by
Article 1.4)] to commence on the Commencement Date hereinafter defined, the
Demised Premises described in Article 1.2, situated in that certain building
located at 211 Warren Street, Newark, New Jersey 07103
("Building").
1.
2 Such premises (Lab #515) and (office #416) have an
approximate gross rentable areas of 590 and 519 square feet and are located on
the fifth and fourth floors of the Building. The aforementioned premises, all
fixtures and equipment now and hereafter attached thereto are hereinafter
referred to as the "Demised Premises".
1.3 The Term of this Lease shall commence on the first to occur of the following
events, which shall hereinafter be called the "Commencement Date" (1) the date
when Tenant or anyone claiming through or under Tenant first occupies the Leased
Premises, or (2) the 1st day of September, 2009.
1.4 The Term of this Lease shall end ("Expiration Date") unless sooner
terminated pursuant hereto or by law, on the last day of the twelfth (12th)
month following the Commencement Date.
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1.5 If delivery of possession of the Demised Premises shall be delayed beyond
the Commencement Date of this Lease for any cause whatsoever, Landlord shall not
be liable to Tenant for any damages resulting from such delay and Tenant's
obligation to pay rent shall be suspended and abated until possession of the
Demised Premises is delivered. In the event of such a delay, it is understood
and agreed that the Commencement date shall also he postponed until delivery of
possession and that the Expiration Date shall be correspondingly
extended.
1.6 Promptly upon the determination by Landlord of the revised Commencement Date
and the revised Expiration Date, Landlord shall send written notice to Tenant of
such revised dates and the parties shall be bound by said dates.
1.7 Tenant's initial occupancy of the Demised Premises shall be deemed an
acknowledgment by Tenant that the Demised Premises are then in good
and tenantable condition.
1.8 The Demised Premises include the right, in common with, other tenants of the
Building, to use the common entranceways, lobby, corridors, lavatories,
stairways, elevators, lunchroom, and conference rooms, without additional charge
or rent.
2. RENTS
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2.1 Tenant
covenants and agrees to pay to Landlord, at its designated payment center
at P.O. Box 18110, Newark, NJ 07191-8110, through-out the full term of
this Lease, but subject to adjustments as hereinafter provided, an annual
guaranteed basic rent ("Basic Rent") in the amount of Thirty-Four
Thousand, Eight and 50/100 ( $34,008.50) DOLLARS, payable in equal monthly
installments, of Two Thousand, Eight Hundred, Thirty-four and 04/100
($2,834.04) DOLLARS.
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Annual
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Year
V
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Year
VI
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Lab#
515
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$21,033,50 ($35.65)
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$21,033.50 ($35.65)
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Office
#416
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$12,975 ($25.00)
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$12,975 ($25.00)
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Total
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$34,008.50
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$34,008.50
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Monthly
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Lab
#5I5
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$1,752.79
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$1,752.79
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Office #416
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$1,081.25
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$1,081.25
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Total
Mthly
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$2,834.04
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$2,834.04
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2
2.2 The rent installment for the first
month of the term hereof shall be paid not later than the
Commencement Date. Each installment of rent shall be paid, in
advance, on the first of each calendar month thereafter. The aforementioned rent
includes an apportionment for the common area attributable to the Demised
Premises.
(a) If the
Commencement Date or the Expiration Date occurs other than on the first day of a
calendar month, the Rent for any partial month within the Term shall be
prorated.
(b) All
payments of Rent, Additional Costs and other payments to Landlord required
hereunder shall be made without demand, deduction or offset, in lawful money of
the United States of America, (payable to New Jersey Institute of Technology /
EDC III and shall be delivered to P.O. Box 18110, Newark, New Jersey 07191-8110
or to such other party and place as may be designated by notice, in writing,
from Landlord to Tenant from time to time.
(c) Any
monthly installments of Basic Rent accruing hereunder which is not
received by Landlord prior to the tenth (10th) day of any month, shall bear a
late charge and service fee of five (5%) percent of such amount, which amount
shall be payable as Additional Costs hereunder, and the failure to pay such
charge shall be a Default by Tenant hereunder.
(d) All
payments of Rent received shall be applied as follows:
first, to
Additional Costs,
second, to
past due rents,
third, to
current rents due.
(e) No
payment by Tenant or receipt and acceptance by Landlord of a lesser amount than
the Basic Rent, Additional Costs, or
other payments to Landlord required hereunder shall be deemed to be other than
part payment of the full amount then due and payable, nor shall any endorsement
or statement on any check or any letter accompanying any check, payment of rent
or other payment, be deemed an accord and satisfaction; and Landlord may accept
such part payment without prejudice to Landlord's right to recover the balance
due and payable or pursue any other remedy in this lease provided.
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2.3 Tenant agrees to pay to
Landlord, in monthly payments, any and all expenses incurred ("Additional
Costs") by either the Landlord or Tenant in connection with:
| 1. |
Electricity
- extraordinary use such as air conditioning,
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| 2. | Natural gas, |
| 3. | Water - extraordinary use, |
| 4. | Rubbish/solid waste removal - such as amount, |
| 5. | Telephone installation, |
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6.
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Office services such as photocopying, facsimile usage, computer usage, secretarial services, etc., |
| 7. | Additional parking spaces |
2.4 Tenant shall have the right to inspect the records of Landlord to determine
the basis for which Additional Costs are calculated. Tenant shall be given
notice of any Additional Costs within 60 days of Landlord's receipt of
bill.
3, SECURITY
3.1 Tenant shall also deposit
with Landlord an additional sum of ONE THOUSAND ONE HUNDRED TWO HUNDRED AND
FIFTY AND 00/100 ($1,250.00) Dollars as a security deposit (the “Security”) for
the full and faithful performance of this lease upon the part of Tenant to be
performed. Upon termination of this lease, and providing Tenant is not in
default hereunder and has performed all of the conditions of this lease,
Landlord shall return the Security. Anything herein contained to the contrary
notwithstanding, it is expressly understood and agreed that the security shall
not bear interest and may be co-mingled with other funds of the Landlord or New
Jersey Institute of Technology. Tenant covenants and agrees that it will not
assign, pledge, hypothecate, mortgage or otherwise encumber the Security during
the Term.
4. UTILITIES AND
SERVICES
4.1 Landlord will furnish heat to
maintain the Demised Premises and the common area between October 1 and May 1 of
each-year of the Term of this Lease. Landlord may furnish air conditioning to
the Demised Premises at its option during the term of this Lease.
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4.2 Landlord will furnish
electricity for lighting purposes in the Demised Premises and the common area
for the operation of ordinary office equipment and ordinary office appliances in
the Demised Premises, excluding however, machinery and other equipment requiring
heavier than normal office use of electricity.
4.3 Landlord shall furnish, at
times set by Landlord, ordinary janitor services. Janitor service shall include
carpet vacuuming. dusting, cleaning, remove trash, maintaining restroom
supplies, and cleaning fixtures. Janitor services shall not disrupt normal
business hour activity.
4.4 At its option, Landlord
may provide basic internet service
to Tenant during the term of the Lease. Landlord hereby reserves the right to
charge Tenant a reasonable cost for the internet service upon thirty (30) days
prior written notice and to terminate such internet service in the event that
Tenant refuses and/or declines to pay the same. Tenant understands that Landlord
does not guarantee or warrant that any internet (including firewall, security
and networking) service connections provided under this Lease will befree
ofinfection or viruses, worms, Trojan horses nr other code that manifest
contaminating or destructive properties. Tenant shall be responsible for
implementing sufficient procedures for maintaining a means for the
reconstruction of any lost data. Tenant assumes total responsibility and risk
for its use of any such internet service connections provided under
this Lease which Landlord provides "AS IS" and does not makeany express or
implied warranties, representations or endorsements whatsoever (including
without limitation warranties of title or non-infringement, or the implied
warranties of merchantability or fitness for a particular purpose) with regard
to such services or the internet generally and Landlord shall not be liable for
any cost or damage arising either directly or indirectly from any such
transaction. Landlord does not warrant that such internet service connections
shall be uninterrupted or error-free or that defects in such services will be
corrected. Tenant understands that the pure nature of the internet contains
unedited materials which may be offensive to Tenant and/or its employees and
Tenant's access to such materials is at its own risk. In no event will Landlord
be liable for: (a) any incidental, consequential,
or indirect damages (including, but not limited to, damages for loss or profits,
business interruption, loss of programs or information, and the like) arising
out of the use of or inability to use such services, or any information, or
transactions provided on such services, or downloaded from such services, or any
delay of
such information or services; or (b) any claim attributable to errors,
omissions, or other inaccuracies in the telephone and/or internet services or
information downloaded through the services. All use of the internet service
connections by the Tenant shall be in full compliance with all federal, state
and local laws and Tenant agrees to indemnify and hold Landlord harmless with
respect to all claims and damages related to Tenant's violation of the
same.
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4.5
Landlord, without notice to Tenant, may cut off and discontinue gas,
electricity, janitor services, or any or all ether utilities whenever any Rent
or Additional Costs are not paid by Tenant when 30 days past normal due date or
whenever such discontinuance is necessary by reason of accident or emergency, or
for repairs, alterations, replacements, or improvements in the reasonable
judgment of Landlord are desirable or necessary to be made, or of difficulty or
inability in securing supplies or labor, or of strikes, or of any other cause be
similar or dissimilar to those hereinabove specifically mentioned, until said
cause has been removed. There shall be no diminution or abatement of Rent or
other compensation due from Tenant to Landlord hereunder, nor shall this Lease
be affected or any of Tenant’s
obligation hereunder reduced, and Landlord shall have no responsibility or
liability for any such interruption, curtailment, stoppage or suspension of
services or systems as in this Article 4 above provided, except that Landlord
shall exercise reasonable diligence to eliminate the cause of same.
5. USE
OF DEMISED PREMISES
5.1 Tenant covenants to use the Demised Premises only for carrying on the
business of developing and commercializing proprietary formulations of specialty
chemicals dud to permit Landlord to transmit heat, air conditioning, and
electric current through the Demised Premises at all times at the discretion of
Landlord, provided, however, that Landlord shall not exercise this right in such
a way as to unreasonably inconvAni.r2,nce
Tenant, or unreasonably interfere with Tenant's use of the Demised Premises. All
property of any kind which may be on the Demised Premises shall be at the sole
risk of Tenant or those claiming through or under Tenant.
5.2
Tenant shall not commit, or suffer to be committed, any waste on the Demised
Premises, nor shall Tenant maintain, commit, or permit the maintenance or
commission of any nuisance on the Demised
Premises or use the Demised Premises for any unlawful purpose.
5.3 Tenant shall comply with any and all laws, ordinances, urder6 and
regulations of any governmental authority which are applicable to its use of the
Demised Premises.
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5.4
Tenant shall allow Landlord to enter premises at any reasonable time tc make
inspection and at any time to act in emergencies.
5.5
Tenant's customers may use the common parking area on a non-exclusive basis.
Tenant's employees will park in areas designated by the Landlord.
5.6
Tenant shall neither abandon nor vacate the Demised Premises during the term of
this Lease without agreeing to the continuation of rent and
expenses.
5.7
Tenant will not be allowed to operate coin machines without Landlord's
consent.
5.8 The
Tenant shall not sub-let the premises nor any portion thereof, nor shall this
lease be assigned by the Tenant without the prior written consent of the
Landlord endorsed hereon.
6.
ALTERATIONS
6.1
Tenant shall not make any alterations, painting, repairs, additions,
improvements or other changes in the Demised Premises or to the building grounds
or attach or affix thereto or build thereon, any article without the advance
written consent of Landlord in each and every in$1..a.44. Before any work is
performed or any materials are delivered on the Demised Premises or in the
buildings and grounds, Tenant shall comply with Landlord's requests for plans,
specifications, names of contractors, necessary permits and indemnifications
against liens, costs, damages, and expenses of any kind and shall submit to
Landlord's supervision of operations during construction. All erections,
alteration, additions and improvements, whether temporary or permanent in
character, which may be made upon the premises either by the Landlord or the
Tenant, except furniture and movable fixtures installed at the expense of
the
Tenant, shall be the property of the Landlord and shall remain upon and be
surrendered with the premises as a part thereof at the termination of this Lease
without compensation to the Tenant. Landlord
reserves, however, as a condition of its consent, the right, at Tenant's cost
and expense, to restore the Demised Premises to their original
condition at the termination of this Lease.
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7. FIXTURES
7.1 All
fixtures, including carpeting and permanent shelving installed by Tenant during
the term of this Lease, whether on permanent foundation or in whatever manner
affixed to the Demised Premises, shall be deemed to have attached to the Real
Estate and to have become the property of this lease, Tenant shall remove any or
all of such property if Landlord demands that Tenant effects such removal. In
the event that such removal is demanded, Tenant shall repair all damages to the
Demised Premises to the condition in which they were prior to the installation
of the articles so removed.
7.2 Tenant may install and
remove property, equipment and fixtures in the Demised Premises during the Term.
If Tenant moves out or is dispossessed, and fails to remove any such property,
equipment and fixtures, Landlord may, at its option, either remove and store
said property, equipment and fixtures or the same shall be deemed to be
abandoned, and Tenant shall reimburse Landlord for the costs of removal and
storage or disposal, as deemed applicable in the sole discretion of the
Landlord.
7.3 Landlord shall repair, at
Tenant's cost and expense, any damage to the Demised Premises resulting from the
removal of the Tenant's property, equipment and fixtures.
7.4 All installation and
removal of Tenant's fixtures, property and equipment shall be done in accordance
with all applicable laws and ordinances and the rules and regulations of all
governmental boards and bodies having jurisdiction.
8. MAINTENANCE
AND REPAIRS
8.1 Subject to reasons beyond its
control, Landlord agrees, at its expense, to maintain and keep in repair the
Demised Premises during the term of this Lease, except for damages caused by
Tenant, its agents, employees, visitors, licensees, contractors, or suppliers,
and except, for items installed for Tenant not of architectural specified
standard materials. There shall be no allowance
to Tenant for a diminution of rental value and no liability on the part of the
Landlord by reason of inconvenience, annoyance or injury to business arising
from the making of any repairs in or to any portion of the Demised Premises or
the buildings and grounds (or in or to fixtures, appurtenances or equipment
thereof).
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8.2 Tenant shall take good care
of the Demised Premises and the fixture, appurtenances and equipment therein
and, at its sole cost and expense, make such repairs thereto necessitated by
licensees, contractors or suppliers, or by the use of the Demised Premises in a
manner contrary to the purposes for which same are leased to Tenant, and as when
needed to preserve them in good order and condition, fair wear and tear
excepted. All damage or injury to the Demised Premises including the floors,
walls and ceilings (and to the fixtures, appurtenances, and equipment therein)
or to the building and grounds caused by Tenant, its agents, employees,
visitors, licensees, contractors, or suppliers, moving, installing or removing
furniture equipment or other property in, within, or out of, the Demised
Premises or building and grounds shall be repaired, restored, or replaced
promptly by Tenant at its sole costs and expense, to the reasonable satisfaction
of Landlord. All aforesaid repairs, restorations, and replacements shall conform
to the standards of the architectural specifications. In the event Tenant shall
fail to make such necessary repairs, restorations and replacements, structural,
non-structural, or otherwise, any charge or cost so incurred by Landlord shall
be paid by Tenant to Landlord as Additional Costs payable with the installment
of rent next becoming due under the terms of this Lease. This provision shall be
construed as an additional remedy granted to Landlord and not in limitation of
any other rights and remedies which Landlord has or may have in said
circumstances.
8.3 The Tenant agrees to keep the
Demised Premises and all parts thereof in a clean. and sanitary condition and
free from trash and inflammable material. Tenant shall have access to Landlord's
trash dumpster for the disposal of routine, non hazardous waste.
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9. DAMAGE
TO OR DESTRUCTION OF DEMISED PREMISES
9.1 If, during the term of this
Lease the Demised Premises are damaged by any casualty or event which is covered
by an applicable insurance policy, to the extent that the same are rendered
wholly unfit for occupancy, and if the Demised Premises cannot, in the judgment
of a reputable contractor satisfactory toLandlord,
be repaired within ninety (90) days from the time of such damage, then this
Lease, at the option of Tenant, may be terminated as of the date of such damage.
In the event Tenant elects to terminate this Lease, Tenant shall pay the rent
apportioned to the time of damage and shall immediately surrender the Demised
Premises to Landlord who may enter upon and repossess the same and Tenant shall
be relieved from any further liability hereunder. If Tenant does not elect to
terminate this Lease, or if any damages by any of the above casualties,
rendering the Demised Premises wholly unfit, can, and in the judgment of such
contractor, be repaired within ninety (90) days thereafter, Landlord agrees to
repair such damage promptly and this Lease shall not be affected in any manner
except that if Tenant cannot utilize the Demised Premises during such period,
rent shall be suspended and shall not accrue from the date of such damage until
such repairs have been completed. If the Demised Premises shall be so slightly
damaged by any of the above casualties as not rendered wholly unfit for
occupancy, Landlord shall repair the premises promptly and during the period
from the date of such damage until the repairs are completed, the rent shall be
apportioned so Tenant pays an amount which bears the same ratio to the entire
monthly rent as the portion of the Demised Premises which Tenant is able to
occupy without disturbance during such periods bears to the entire Demised
Premises. If the damage by any of the above casualties is so slight that Tenant
is not disturbed in its possession and enjoyment of the Demised Premises, then
Landlord shall repair the same promptly and in that case the rent accrued or
accruing shall not abate.
9.2 If, during the term of this
Lease, the Demised Premises are damaged by any casualty not covered by an
applicable insurance policy, either rendering the Demised Premises partially
untenantable or totally untenantable, then and in that event, Landlord shall,
within thirty (30) days from the date when said damage has occurred, notify
Tenant, in writing, as to whether or not Landlord elects to rebuild, or repair
the Demised Premises at its own sole cost and expense. Upon receipt of such
notice of election not to rebuild, either party shall have the right to
terminate this Lease effective as of the date when such election not to rebuild
is made, or, Tenant may elect to rebuild the Demised Premises at the sole cost
and expense of Tenant. In the event of termination, all liabilities of each
party to the other, incurred no earlier than the date of termination, shall
cease and terminate.
10.
LANDLORD'S ACCESS FOR FUTURE CONSTRUCTION
10.1 Landlord reserves the right
to enter the Building, Land and Demised Premises in connection with the
construction and erection of any additions or improvements to the Building and
Land of which the Demised Premises are a part, provided that in the use of such
right Landlord shall not unreasonably interfere with Tenant's use of the Demised
Premises.
11.
INSURANCE
11.1 Tenant covenants and agrees
that it will carry on the premises covered hereunder, including the parking and
other common areas
liability insurance in the minimum amount of ONE MILLION and 00/100
($1,000,000.00) DOLLARS per accident and TWO HUNDRED FIFTY THOUSAND AND 00/100
($250,000.00) DOLLARS for property damage to protect Tenant and Landlord against
liability for personal and bodily injury, death and property damage (including
water). Tenant further covenants and agrees that it will add Landlord as a named party insured by such
policy as its interests appear under this lease and furnish Landlord with a
certificate of said liability insurance prior to the Commencement Date. Tenant
agrees that such insurance coverage will be maintained in full force and effect
during the Term. In addition, it is expressly understood and agreed that
Tenant's liability policy shall (I) name as insureds Tenant, Landlord, and, if
Landlord requests. Landlord's mortgagees, if any, provided that Landlord and
Landlord's mortgagees shall only be insured as their interests may appear under
this lease; (ii) be written on a form reasonably satisfactory to Landlord by a
good and solvent insurance company of recognized standing, admitted to do
business in the State of New Jersey and reasonably satisfactory to Landlord; and
(iii) provide that it will be non-cancelable, except on thirty (30) days• prior
written notice to Landlord and, if requested by Landlord, Landlord's
mortgagees.
11.2 Tenant shall maintain fire
legal liability insurance in the amount of at least $100,000 to cover
replacement value of all of Tenant's property and fixtures and equipment located
on the Leased Premises and damage to other property caused by a fire started on
Tenant's Premises.
11.3 Tenant, at its own cost and
expense, shall insure its own fixtures, equipment and contents.
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11.4 Tenant will indemnify
Landlord and save Landlord harmless from and against any claims in connection
with any accident, in or damage whatsoever caused to anyone or any property
arising directly or indirectly out of Tenant's use of the demised premises cu-
in or about same, including the acts of guest, licensees, contractors, servants,
subtenants, trespassers or others acting through or under them. The liability
insurance referred to above shall include insurance of the contractual
obligations of the Tenant set forth herein.
12.
DEFAULT
12.1 Each of the following
events, (hereinafter called "Event of Default"), shall be a default hereunder by
Tenant and a breach of this Lease,
(a) If Tenant
shall violate any covenant or agreement providing for the payment of rent or
Additional Costs, and such violation shall continue for ten (10) days after
notice.
(b) If Tenant
shall assign, transfer, encumber, sublet or permit the use of the Demised
Premises by others except in a manner permitted in Article 5.
(c) If Tenant
shall be adjudicated as bankrupt whether voluntarily or involuntarily, or make
any general assignment for the benefit of any insolvency, receivership, or
Bankruptcy Acts.
(d) If a
receiver or trustee shall be appointed for, or to take possession of, all or a
substantial part of the property of Tenant or Tenant's leasehold
interest.
(e) If the
Premises are vacated or abandoned by Tenant.
(f) If there
be any attachment, execution or other judicial seizure of all or a substantial
part of the assets of Tenant or Tenant's leasehold, where such an attachment,
execution or seizure is not discharged within thirty (30) days.
(g) If
the estate of Tenant be transferred or passed to, or devolve upon, any other
person or corporation by operation of law.
(h) If
Tenant shall be in default of fulfilling any of the other covenants and
conditions of this Lease and such default shall continue for thirty (30) days
after written notice thereof from Landlord to Tenant.
12.2 In the event of such Event
of Default:
(a) Landlord
has the right to enter upon the Demised Premises and again have, repossess, and
enjoy the same as if this Lease has not been made, and thereupon this
Lease shall terminate without prejudice, however, to the right of Landlord to
recover from Tenant all rent and other sums unpaid up to the time of such
re-entry. In the event of any such default and re-entry, Landlord shall have the
right to re-let the Demised Premises for the remainder of the then existing term
for the highest rent then obtainable, and to recover from tenant the difference
between the rent reserved by this Lease and the amount obtained by such
re-letting, less the costs and expenses reasonably incurred by Landlord in such
re-letting. In the event that the amount obtained exceeds the rent herein
reserved, Landlord shall not be required to pay such excess to
Tenant.
(b) Tenant
hereby authorizes and empowers any attorney of any court of record within the
United States or elsewhere, to appear for Tenant and to confess judgment against
Tenant in favor of Landlord as often as necessary, as of any term with or
without declaration filed, for the sum due by reason of said default in the
payment of rent, including unpaid rent for the balance of the term of this lease
if the same shall have become due and payable under the provisions herein,
and/or for the sum due by reason of any breach of covenant, duty, agreement or
obligation by Tenant herein, together with costs of suit and five (5%.)
percent added as attorney's fees, with release of all errors. Tenant waives any
right to stay of execution and extension of any levy on property from levy and
execution thereon apt well
as any levy on property pursuant to any such judgment and expressly waives the
exception statute now in force or enacted hereafter by any state or nation, to
the extent such statutes may be waived.
(c)
Tenant further, at the option of Landlord, authorizes and empowers any such
attorney, either in addition to or without such judgment for the amount due
according to the terms of this Lease to appear for Landlord and confess judgment
forthwith
against Tenant in favor of Landlord in an amicable action of ejectment for the
Demised Premises, with all the conditions, fees, releases, waivers or stay of
execution and waiver of exemption to accompany said confession of judgment for
said sum or sums due; and authorizes the entry of such action, confession of
judgment therein and the immediate issuing of a writ of possession with clause
of execution for the amount of such judgment and costs, without leave of Court,
and Landlord may without notice re-enter and expel Tenant from the Demised
Premises and also any person holding under it and in each case, this Lease or
a true copy thereof shall be a sufficient warrant of any
person.
(d) All
rights and remedies of Landlord under this Lease shall be cumulative and none
shall exclude any other right to remedy at law. Such right and remedies may be
exercised and enforced concurrently and whenever and as often as occasion
thereof arises.
13. WAIVER OF
DEFAULT
13.1 Acceptance by Landlord of
part payment on any installment of rent by Tenant shall not constitute an accord
and satisfaction as to the rental obligation of Tenant. Failure of either party
to complain of any act or omission on the part of the other party, no matter how
long the same may continue, shall not be deemed to be a waiver by said party of
any of their rights hereunder. No waiver by either party at any time, express or
implied, or any breach of any provision of this Lease shall be deemed a waiver
of a breach of any provision of this or a consent to any subsequent breach of
the same or any other provision.
14. SUBORDINATION
14.1 This Lease shall be subject
and subordinate at all times to the lien of any mortgage or encumbrances, which
may now or which may at any time hereafter be made a lien upon the Building of
which the Leased Premises are a part or upon Landlord's interest therein. Tenant
shall, execute and deliver such further instrument or instruments subordinating
this lease to the lien of any such mortgage or encumbrance as shall be desired
by any mortgagee or party secured for proposed mortgagee or party proposed to be
secured;] and Tenant hereby appoints Landlord the attorney-in-fact of
Tenant, irrevocably, to execute and deliver any such instrument or instruments
for Tenant.
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14.2 Tenant hereby
agrees not to look to the holder of any mortgage upon the Building either in its
capacity as mortgagee, mortgagee
in possession, or successor in title, for accountability for any
security deposit required by Landlord hereunder, unless said sums have actually
been received by said mortgagee as security for Tenants performance of this
Lease.
15. SURRENDER
15.1 Tenant covenants
and agrees to deliver up and surrender to
Landlord possession of the Leased Premises upon expiration of this
Lease, or its earlier termination as may be herein provided, broom clean and in
as good condition and relief as the same shall be at the commencement of the
term of this Lease or may have been put by Landlord during the continuance
ordinary wear and tear and damage by fire or the elements expected.
15.2 Landlord shall
also have the right to enter upon the Leased Premises for a period
commencing one hundred twenty (120) days prior to the termination of this Lease
for the purpose of exhibiting the same to prospective tenants or purchaser. Any
entry upon the premises for the purpose of exhibiting the same shall not
interfere with the normal business operations of the Tenant.
15.3 Tenant shall, at
the expense of Tenant, remove all property
of Tenant and all fixtures, alterations, additions, and improvements
as to which Landlord shall have made the demand as provided
in paragraphs
6 and 9 hereof, repair all damages to the Leased Premises caused by such removal
and restore the Leased Premises to the condition is which they were prior to the
installation of the articles so removed and as to which Landlord shall have not
made such demand, shall be deemed to have been abandoned
by Tenant and may be retained or disposed of by Landlord. This
obligation of Tenant to observe or perform this covenant shall survive the
expiration or termination of the term of this Lease.
16. HOLDING
OVER
16.1 If Tenant shall
not immediately surrender possession of the
Leased premises
at the termination of this Lease, Tenant shall become a
tenant from month to month, provided rent shall be paid to and accepted by
Landlord, in advance, at twice the rate of Basic
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Rent
payable hereunder just prior to the termination of this Lease; but unless and
until Landlord shall accept such double rent from Tenant, Landlord shall
continue to be entitled to retake or recover possession of the Leased Premises
as heretofore provided in case of default on the part of Tenant, and Tenant
shall be liable to Landlord for any loss or damage it may sustain by reason of
Tenants failure to surrender possession of The Leased Premises immediately upon
the expiration of the term of this Lease.
17. REIMBURSEMENT
17.1 All terms,
covenants and conditions herein contained, to be performed by tenant shall be
performed at its sole expense, and if Landlord shall pay any sum of money to do
any act which required the payment of money, by reason of the failure, neglect
or refusal of Tenant to perform such term, covenant or condition, the sum of
money to be paid to Landlord shall be payable by Tenant to Landlord with the
next succeeding installment or rent.
18. ASSIGNMENT
AND SUBLEASE
18.1 Tenant shall not
assign., transfer, mortgage, or encumber this Lease without obtaining the prior
written consent of Landlord. The consent by Landlord to any assignment,
transfer, or sub letting to any party other than Landlord shall not be construed
as a waiver or release of Tenant from the terms of any covenants or obligations
under this Lease, nor shall the collection or acceptance of rent from any such
assignee, transferee, subtenant or occupant constitute a waiver of, or release
of Tenant from any covenant or obligation contained in this Lease.
19.
BROKERAGE
19.1
Landlord and Tenant represent that they have dealt with no ether broker in
connection with this Lease except Coldwell Banker Commercial ( Feist & Feist
Realty Corp ) for which the Landlord will make a one time payment of $639.00 (
5% of first year's rent ). Should any claim be made against Landlord by any
broker for commissions in connection with this Lease, based on any acts of
Tenant or its representatives, Tenant shall indemnify Landlord against all
liability and expenses (including reasonable attorneys fees) incurred in
connection therewith. Should any such claim be
made against Tenant on account of any acts of Landlord or its representatives,
Landlord shall indemnify Tenant against all liability
and expenses (including reasonable attorneys fees) incurred in connection
therewith.
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20. RIGHTS
AND REMEDIES CUMULATIVE
20.1
The rights and remedies provided by this Lease are cumulative and the use of any
right or remedy by either party shall not preclude or waive the right of either
party to use any or all other remedies. Said rights and remedies arc given in
addition to any other rights the parties may have by law, statute or
ordinance otherwise.
21. INSPECTION
BY LANDLORD
21.1 Tenant agrees that Landlord and its agents, and other representatives, shall have the right to enter into and upon the Demised Premises at all reasonable hours, without unduly disturbing the operations of tenant, for the purpose of examining the same or for making such repairs or alterations therein as may be necessary for the safety and preservation thereof.
22. NOTICES
AND DEMANDS
22.1 All notices
required or permitted hereunder shall he deemed to have been given if mailed in
any United States Post Office by certified or registered mail, postage prepaid,
addressed to Landlord at the address set forth at the head of this agreement or
such other place as Landlord shall designate in writing. All notices required or
permitted to be given to Tenant shall be given by certified mail, return receipt
requested, addressed to Tenant at the Demised Premises, or such other place as
Tenant shall designate in writing.
22.2 Tenant hereby
elects domicile at the Leased Premises for the purpose of service of all
notices, writs, of summons, or other legal documents, or process, in any suit,
action, or proceeding which Landlord may undertake under this
Lease.
23. COMPLIANCE
WITH LAWS, RULES AND REGULATIONS
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23.1 Tenant covenants
and agrees that upon acceptance and occupancy of the Demised Premises, it will,
during the Term, promptly,
at Tenant's cost and expense, 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 Demised
Premises, as the same may require (correction, prevention and abatement of
nuisances, violations or other grievances, in, upon or connected with the
Demised Premises, arising from the operations of Tenant therein.
23.2 In connection
with the use and occupancy by Tenant of the Demised Premises in the conduct of
its business, Tenant covenants and agrees, at its own cost and expense,
to comply with
such regulations or requests as may reasonably be required by the fire or
liability insurance carriers providing insurance for the Property, and will
further comply with such other requirements that may be promulgated by the Board
of Fire Underwriters.
23.3
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, gnifbage and waste in connection with Tenant's operations in the
Demised Premises in accordance with reasonable regulations established by
Landlord from time to time in order to keep the Property 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.
23.4 In case Tenant
shall fail or neglect to comply with any of the aforesaid statutes, ordinances,
rules, orders, regulations and requirements 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 the Demised 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 months
Rent and be due and payable as such, or Landlord may deduct the same from the
balance of any sum remaining in Landlords hands. This provision is in addition
to the right of Landlord to terminate this lease 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
provided.
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24. QUIET
ENJOYMENT
24.1 Landlord
covenant.s and agrees with Tenant that upon Tenant paying the Rent and
Additional Costs and observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the Leased Premises hereby demised, subject, nevertheless, to
the terms and conditions of this Lease, and to the mortgages hereinbefore
mentioned.
25. SIGNS
25.1 Landlord agrees
that it will provide a directory in the lobby area of the Building, and Landlord
shall identify Tenant's business name by signage on or near the entrance doorway
to the Demised Premises. Tenant shall not have the right to place any other
signs in or about the property.
26.
NON-LIABILITY OF LANDLORD
26.1 It is understood
and agreed that Landlord, in its capacity as Landlord and, if applicable, as
builder or general contractor of the Building in which the Demised. Premises are
located, shall not be liable to Tenant, Tenant's agent, employees, contractors,
invitees or any other occupant of the Demised Premises for any damage to
property or for any inconvenience or annoyance to Tenant or any other occupant
of the Demised Premises or interruption of Tenant's or such other occupants
business, arising out of or attributable to (I) the design and construction of
the Demised Premises and the Building; (ii) any maintenance, repairs,
replacements, additions, alterations, substitutions and installations made to
the Demised Premises and the Building; (iii) the failure of Landlord to perform
Landlord's lease obligations; and (iv) any cause or happening whatsoever,
including negligence by Landlord and Landlord's agents, servants and employees
with respect to any of the events or occurrences referred to in subdivisions (i)
through (iii), or otherwise. The foregoing covenant is an express inducement to
Landlord to enter into the within lease and Tenant acknowledges that it
understands the scope and consequences of Landlord's exculpation as herein
provided.
26.2 Anything
hereinabove contained to the contrary notwithstanding, Tenant in all events
shall assume all risk of damage or loss to its property, equipment and fixtures
occurring in or about
the Demised Premises, whatever the cause of such damage or loss, including
Landlord's negligence.
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27. EMINENT
DOMAIN/CONDEMNATION
27.1 If the premises
or a substantial part thereof wherein the Demised Premises are located shall be
taken by public or quasi-public authority under any power of eminent domain or
condemnation, this Lease, at the option of the Landlord or Tenant, shall
forthwith terminate and the Tenant shall have no claim or interest in or to any
award of damages for such taking; provided, however, that Tenant shall have the
right to seek a separate award for its damages and expenses as allowed by
law.
28. FORCE
MAJEURE
28.1 This tease and
the obligation of Tenant to pay rent hereunder and perform all of the other
covenants and agreements hereunder on part of Tenant to be performed shall
nowise be affected, impaired or excused because Landlord is unable to supply or
is delayed in supplying any service expressly or implied Lo be supplied or is
unable to make, or is delayed in making any repairs, additions, alterations or
decorations-ation or is unable to supply or is delayed in supplying any
equipment or fixtures if Landlord is prevented or delayed from so doing by
reason of governmental preemption, or in connection with any rule, order or
regulation of any department or subdivision thereof of any governmental agency,
or by reason of the conditions of supply and demand or for any reason beyond the
reasonable control of Landlord.
29. LEASE
PROVISIONS
29.1 The foregoing
rights and remedies are not intended to be exclusive but as additional to all
rights and remedies the Landlord would otherwise have by law.
30. CAPTIONS
OF ARTICLES
30.1 The captions of
the articles throughout this Lease are for the convenience and reference only,
and the words contained therein shall be in no way held to explain, modify,
amplify or aid in the
interpretation, construction, or meaning of the provisions of this
instrument.
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31. GOVERNING
LAW
31.1 This Lease shall
be construed and governed by the laws of the State of New Jersey. Should any provision of the
Lease and/or its conditions be illegal car- not enforceable it or they shall be
considered severable, and the Lease and its conditions shall remain it force and
be binding upon the Parties as though the said provisions had never been
included.
32. INCUBATOR
PROGRAM
INTENTIONALLY
OMITTED
33.
MISCELLANEOUS
33.1 The Lessor and
Leasee Hereby Acknowledge That the Leased Premises is subject to the terms and
conditions of the Economic Development Administration ( EDA ) Special Award
Conditions ( Award No. 01-49-0321 ), wherein the use of the leased space
within the Leased Premises is restricted to Small Business Development and
Technology commercialization. The Leaser agrees that this Agreement. of Lease is
consistent with EDA's policies concerning, but not limited to, non-relocation
(as refined in EDA's regulations found at C FR 316.3), non-discrimination and
adequate consideration, in that the Leasee is providing market value
compensation to the Lessor for this Lease. Moreover, the use of the Lease space
must be used for no other purpose other than the general and specific purpose of
the Award. Finally, the Agreement of Lease shall be subordinate, junior and
inferior to the priority of the lien of the Award provided to EDA.
33.2
The term "Tenant" shall include legal representatives, successors and assigns.
All covenants herein made binding upon Tenant shall be construed to be equally
applicable to and binding upon its agents, employees and others claiming the
right to be in the
Leased Premises and in said building and grounds through or under
Tenant.
33.2
If more than one individual, firm or corporation shall join as Tenant, singular
context shall be construed to be the joint and several obligations of each party
signing as Tenant, and; when the parties signing as Tenant are partners, shall
be the obligation of the.c firm and of the individual members
thereof.
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33.3 Feminine or
neuter pronouns shall be substituted for those of the masculine form, and the
plural shall be substituted for the singular, wherever the context shall
require. It is also agreed that no specific words, phrases, or clauses herein
used shall be taken or construed to control, limit or cut down the scope or
meaning of any general words, phrases or clauses used in connection on
therewith.
33.4 Consistent with
its operation as an incubator program, NJIT and/or EDC may from time to time
provide business advice to and consult with Client Company either directly or
through a third party. In such an event, neither NJIT and/or EDC or the third
party is responsible for the quality or correctness of the advise and Client
Company shall bring no claims against NJIT and/or MC or the Third Party, on
account of the advise, assistance, consultations and services.
34. PROVISIONS
BINDING
34.1 Except as herein
otherwise provided, the terms and provisions hereof shall be binding upon and
shall inure to the benefit of the heirs, executors, administrators, successors
And permitted assigns, respectively, of Landlord and Tenant. The reference
contained to successors and assigns of Tenant is not intended to constitute a
consent to assignment by Landlord, but has reference only to those instances in
which Landlord may have given written consent to a particular
assignment.
35. ENTIRE
AGREEMENT
35.1
The writing contains the entire agreement between the parties hereto and no
agent, representative, salesman or officer of Landlord hereto has the authority
to make or has made any statement, agreement or
representation, either oral, or written, in connection therewith, modifying,
adding or changing the terms and conditions herein set forth. No dealings
between the parties or customs shall be permitted to contradict various
additions or to modify the terms hereof. No modifications of this lease shall be
binding unless such modifications shall be in writing and signed by the parties
hereto. This Lease Agreement cancels and supersedes all
previous lease agreements of any date or nature between Landlord and
Tenant.
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IN WITNESS HEREOF,
and intending to be legally bound hereby, the parties have set their hands and
seals to this 1st. day of September, 2009.
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