LEASE AGREEMENT
THIS AGREEMENT, made the 15th day of June, 2001 by and between
NEW BRUNSWICK SCIENTIFIC CO., INC.
44 Talmadge Road
P.O. Box 4005
Edison, New Jersey 08818-4005
(hereinafter called the "Landlord"); and
DGI BIOTECHNOLOGIES, INC.
40 Talmadge Road
P.O. Box 424
Edison, New Jersey 08818-0424
(hereinafter called the "Tenant").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Landlord owns certain lands and premises in the Township of
Edison, County of Middlesex, and State of New Jersey, situated on 44 Talmadge
Road, Edison, County of Middlesex, New Jersey, and containing 243,000 square
feet of building, (the "Premises");
WHEREAS, the Tenant intends to enter into an equity financing transaction
with one or more investors (the "Financing"), and in contemplation thereof the
Landlord and Tenant desire to enter into this Lease Agreement; and
WHEREAS, the Landlord intends to lease to the Tenant that portion of said
building containing approximately 8,800 square feet, located in the northeast
corner of the Premises (the "Leased Premises");
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for the rents
reserved, the mutual considerations herein and the parties mutually intending to
be legally bound hereby, the Landlord does demise, lease and let unto the
Tenant; and the Tenant does rent and take from the Landlord the Leased Premises
and the Landlord and Tenant do hereby mutually covenant and agree as follows:
1
1. LEASED PREMISES
----------------
The Leased Premises shall consist of approximately 8,800 square feet
located in the northeast corner of the Premises. At no additional cost to
Tenant, Landlord will provide access to and use of the common areas and space
that Tenant has been utilizing prior to the date hereof for refrigerated
storage, general storage and radioactive material storage, and autoclaves (the
"Common Storage Area"). The term "Common" as used herein denotes co-use by
Landlord and Tenant. In addition to the foregoing, Landlord will provide
Tenant, at no additional cost to Tenant, access and use of the common water
supply and a total of seventeen (17) parking spaces (which shall include an
appropriate number of handicapped parking spaces), clearly marked for Tenant's
visitors in the parking area in front of Leased Premises and as many unmarked
parking spaces as needed for Tenant's employees in the rear parking lot of the
Premises. The Tenant shall be permitted to affix signs, in location, content
and style reasonably acceptable to the Landlord, on the front door or area
adjacent to the front door of the Leased Premises and in front of the Premises.
All signs installed by the Tenant shall conform with all municipal ordinances or
other applicable laws and regulations.
2. TERM OF LEASE
---------------
The Landlord leases unto the Tenant and the Tenant hires the
aforementioned Leased Premises for a term commencing on the date of the first
closing of the Financing and to terminate on May 31, 2003 (the "Term"); however,
Tenant may terminate this lease at any time by providing Landlord with ninety
(90) days prior written notice. Landlord may terminate this lease at any time
by providing the Tenant with at least one (1) year's prior written notice.
3. FIXED RENT
-----------
(a) The fixed annual rent during the term of this Lease shall be Two
Hundred Eleven Thousand Two Hundred Dollars and 00/100 ($211,200.00) per year
payable by the Tenant in equal monthly installments of Seventeen Thousand Six
Hundred Dollars and 00/100 ($17,600.00) each on or before the first day of each
month, in advance. The fixed annual rent is the total rent due Landlord by
Tenant it being understood that Landlord shall be solely responsible for paying
2
all utilities, meter charges, service charges and utilities including gas,
electric, city water, sewer, garbage disposal and standby sprinkler charges, if
any for the Premises, Leased Premises, and Common Storage Areas. Landlord shall
further be responsible for paying all real estate taxes and fire insurance
premiums for the premises and improvements thereon (as set forth in Article 8
(a)) in connection with the Leased Premises.
(b) All rents due herein and other sums due under this Lease shall be
paid in U.S. funds payable on a U.S. bank at the office of the Landlord or at
such other place designated by Landlord from time to time, without any prior
demand and without any deduction or set-off whatsoever promptly on the dates
due.
(c) Tenant hereby acknowledges that late payment to Landlord of rent
or other sums due hereunder will cause Landlord to incur costs not contemplated
by this Lease, the exact amount of which will be extremely difficult to
ascertain. If any rent or other sums due from Tenant is not received by
Landlord within thirty (30) days after its due date, then Tenant shall pay to
Landlord a late charge equal to three percent (3%) of such overdue amount, plus
costs and reasonable attorneys' fees, if any, incurred by Landlord to collect
amounts due from Tenant. The parties hereby agree that such late charges
represent a fair and reasonable estimate of the cost that Landlord will incur by
reason of Tenant's late payment. Landlord's acceptance of such late charges
shall not constitute a waiver of Tenant's default with respect to such overdue
amount or estop Landlord from exercising any of the other rights and remedies
provided under this Lease or at law.
4. USE
---
Tenant shall use the Leased Premises for research and development and
general office space (and for no other purpose whatsoever) subject to and in
accordance with all rules, regulations, laws, ordinances, statutes and
requirements of all government authorities having jurisdiction over the Leased
Premises. Tenant warrants to the Landlord it will not permit any flammable or
hazardous materials, other than materials of the same nature or type as those
materials used by the Tenant prior to the date of this Agreement, to enter, be
3
stored, used or remain on the Leased Premises or Common Storage Area without the
Landlord's prior written permission.
5. REPAIRS AND MAINTENANCE
-------------------------
(a) The Tenant shall, at its own cost and expense, maintain and make
all repairs and replacements to the Leased Premises, except structural
(structural defined as load bearing walls, steel, foundation and roof
structure), provided that any damage to the foregoing is not caused by the
negligence or intentional act or omission of the Landlord, its servants,
employees or agents. Should damage to the Leased Premises be caused by the
negligence or intentional act or omission of Landlord, its servants, employees
or agents then, at Landlord's option, Landlordshall either promptly effect all
repairs required as a result of such damage or reimburse to Tenant the costs and
expenses associated therewith.
(b) The Tenant covenants and agrees that it shall not cause or permit
any waste (other than reasonable wear and tear and loss due to casualty),
damage, disfigurement or injury to the Leased Premises, or any overloading of
the floors of the building constituting part of the Leased Premises.
(c) (i) The Landlord agrees to maintain the Premises (not including
the Leased Premises) and Common Storage Areas in good order and repair, unless
damage thereto shall have been caused by the negligence or intentional act or
omission of the Tenant, its agents, employees, contractors or invitees.
(ii) The Landlord shall maintain, repair and keep free and clear of ice
and snow, the driveways, parking areas, sidewalks and steps to the Leased
Premises and the Common Storage Area.
6. UTILITIES
---------
The Landlord shall provide to the Leased Premises and Common Storage
Area, and shall be responsible for paying at its own cost and expense, all
utility meter charges, deposits, service charges and utilities, including gas,
electric, city water, sewer, garbage disposal and standby sprinkler charges, if
any.
4
7. TAXES
-----
The Landlord shall pay all real estate taxes assessed against the
Leased Premises including the land and buildings by the Township of Edison,
during the Term of this Lease.
8. INSURANCE
---------
(a) Landlord will pay the annual insurance premium to enable Landlord
to carry, for the benefit of the Tenant, fire insurance with full extended
coverage, including vandalism and malicious mischief in the Edison, New Jersey
area, in an amount equivalent, in Landlord's reasonable judgment, to the full
replacement value of the insurable improvements to the Premises.
(b) The Tenant covenants and agrees that it will carry liability
insurance, which said insurance shall be in the minimum amount of $2,000,000.00
per occurrence, and a minimum amount of $500,000.00 for property damage, and the
Tenant further covenants and agrees that it will add and maintain as a party
insured by such policy the interest of the Landlord, and upon request will
furnish Landlord with a certificate of said liability insurance in a form
reasonably satisfactory to Landlord. Tenant shall be responsible for paying all
premiums and other amounts due in connection with said insurance. The amount of
Tenant's insurance shall not limit Tenant's liability hereunder.
(c) It is expressly understood and agreed that all above-mentioned
policies of insurance shall contain a clause that the same will not be canceled
except upon thirty (30) days' written notice to any insured parties in interest.
(d) Landlord and Tenant each hereby releases the other from
liability for damage or destruction to the Premises containing the Leased
Premises and the improvements located on the Property, whether or not caused by
acts or omissions of the other party, caused by or resulting from any risks
required to be insured against by Landlord or Tenant pursuant to this Lease;
provided, however, such release shall only be in force and effect in respect of
damage or destruction normally covered by standard policies of fire insurance
with extended coverage (whether or not such coverage is in effect). Each part
shall cause its fire insurance policies to contain a provision whereby the
insurer either waives any right of subrogation against the other party or agrees
that such a release shall not invalidate the insurance, whichever is obtainable.
9. FIXTURES
--------
(a) The Tenant is given the right and privilege of installing and
removing (without damage to real property or, if damage is caused to real
property, with adequate repairs thereto) its personal property, furniture,
equipment and fixtures in the Leased Premises, it being understood and agreed,
however, that in the event of: (i) default by the Tenant under the terms and
conditions of this Lease; or (ii) upon the expiration of this Lease; or (iii) if
the Tenant moves out or is dispossessed and, in the case of (i), (ii) or (iii)
above, Tenant fails to remove any such property, equipment and fixtures or other
property within thirty (30) days after such default or removal pursuant to the
applicable terms and conditions of this Lease; then and in any such event, the
said property, equipment and fixtures or other property shall be deemed, at the
option of the Landlord, to be abandoned, (and become Landlord's property) or in
lieu thereof, at the Landlord's option, it may remove such property and charge
the reasonable cost and expense of removal and storage to the Tenant.
(b) Anything to the contrary contained herein notwithstanding it is
expressly understood and agreed that the Tenant may without injury to real
property install, connect and operate equipment as may be deemed necessary by
the Tenant to conduct its business subject to applicable rules and regulations
of governmental agencies, boards and bureaus having jurisdiction thereof;
provided, in any event, that subject to the terms and conditions of this article
and article 9(a), the machinery and fixtures belonging to the Tenant shall, at
all times, be considered and intended to be personal property of the Tenant, and
not part of the realty, and subject to removal, by the Tenant, and that the
Tenant, at its own cost and expense, pays for any damage to the Leased Premises
caused by such installation and removal.
10. ASSIGNMENT AND SUBLETTING
---------------------------
(a) Tenant will not assign or sublet this Lease in whole or part, nor
sublet all or any part of the Leased Premises.
5
(b) Notwithstanding section (a) above, Tenant shall have the right
without Landlord's consent, to assign this Lease all or any portion of the
Leased Premises to a corporation or other entity which controls, is controlled
by or is controlled in common with Tenant or to a successor by merger,
consolidation or a sale of all or substantially all of the assets of the capital
stock of Tenant. The term "control" as used herein shall mean holding more than
fifty (50%) percent of the voting interest in such entity. Notwithstanding any
approved assignment, the Tenant shall remain fully liable on this Lease and
shall not be released from performing any of the terms, covenants and conditions
of this Lease.
11. FIRE OR OTHER CASUALTY LOSS
-------------------------------
(a) In case of damage by fire or other casualty to the building in
which the Leased Premises is located, if the damage is so extensive as to
require substantial reconstruction of such building, this Lease shall cease at
either party's option and the rent shall be apportioned as of the time of
damage. Substantial reconstruction shall mean damage so extensive that the cost
of restoration shall be fifty percent (50%) of the entire cost of the demolition
of the damaged building and the erection of a new building of the same size and
design shall exceed fifty percent (50%) of the replacement cost of the building
immediately prior to such damage.
(b) In all other cases of damages by fire or other casualty to the
Leased Premises or the building of which it is a part, the Landlord shall repair
(using proceeds of insurance claim) the damage with reasonable dispatch, and if
the damage has rendered the Leased Premises untenantable, in whole or in part,
there shall be an apportionment of the rent until the damage has been repaired.
In determining what constitutes reasonable dispatch, consideration shall be
given to delays caused by strikes, governmental approvals, adjustment of
insurance claims and other causes beyond the Landlord's control.
(c) If the restoration is not completed within six (6) months after
the occurrence of the fire or other casualty, Tenant shall have the right to
terminate this Lease, without penalty therefor, by forthwith giving written
notice thereof to Landlord.
6
12. COMPLIANCE WITH LAWS, RULES AND REGULATIONS
------------------------------------------------
(a) Tenant shall, at Tenant's sole cost and expense, without notice
or demand from Landlord, faithfully observe and comply with all laws, rules and
requirements of all county, municipal, state, federal and other applicable
governmental authorities, now in force, or which may hereafter be in force,
pertaining to Tenant's manner of use and occupancy and use of the Leased
Premises (including in connection with Tenant's surrender of the Leased Premises
upon the expiration or termination of this Lease). Tenant shall not be required
to make any alterations to the structural elements of the Premises, Leased
Premises or Common Storage Areas in order to comply with any such laws, rules
and requirements except to the extent that such non-compliance is a direct
result of any alterations made by the Tenant.
(b) Tenant agrees to comply with all applicable requirements of
the Industrial Site Recovery Act ("ISRA") N.J.S.A. l3:1K-6 et seq. and the Spill
--------
Compensation and Control Act ("Spill Act") N.J.S.A. 58:l0-23 et seq., and all
--------
regulations promulgated in connection therewith regarding any substances or
materials placed or used upon the Leased Premises by Tenant, its agents,
employees or contractors. All references to ISRA and/or the Spill Act in this
Lease shall be deemed to include any predecessor or successor statute(s) to
same.
(c) That in case the Tenant shall fail or neglect to comply with
the aforesaid statutes, ordinances, rules, orders, regulations and requirements
or any of them, or in case the Tenant shall neglect to maintain the Leased
Premises or fail to make any necessary repairs called for in the Lease, then the
Landlord or the Landlord's agents may after thirty (30) days' written notice and
Tenant's failure to cure within said period, unless Tenant has commenced in a
material manner efforts to comply or to make such repairs or maintenance and
diligently prosecutes same to completion (except, in the case of an emergency,
action may be taken immediately), enter Leased Premises and make such repairs,
effect such maintenance necessary to comply with any and all of the said
statutes, ordinances, rules, orders, regulations or requirements, at the
reasonable cost and expense (including experts and reasonable attorney's fees)
of the Tenant and in case of the Tenant's failure to pay therefore, the said
cost and expense shall be added to the next month's rent and be due and payable
as such, or the Landlord may deduct the same from the balance of any monies
remaining with Landlord. The failure by the Landlord to take any action
hereunder, or the delay by Landlord in taking any action, shall not place any
liability or obligation on the Landlord. This provision is in addition to the
right of the Landlord to terminate this Lease by reason of any default on the
part of the Tenant.
13. INSPECTION BY LANDLORD
------------------------
The Tenant agrees that the said Landlord's agents, and other
representatives, shall have the right to enter into and upon Leased Premises, or
any part thereof, at all reasonable hours for the purpose of inspecting the same
upon reasonable advance notice to Tenant, except in the event of emergency, for
effecting such maintenance, making such repairs or alterations therein as may be
necessary for the safety and preservation thereof.
l4. RIGHT OF RE-ENTRY
-------------------
If the Leased Premises, or any part thereof, shall become vacant
due to the Tenant's removal or failure to pay rent and other charges payable
hereunder during the said term, or should the Tenant be evicted by summary
proceedings or by other judicial process, the Landlord or Landlord's
representatives may re-enter the same, either by force or otherwise, without
being liable to prosecution therefore; and relet the Leased Premises as the
Agent of the Tenant and receive rent thereof; applying the same, first to the
payment of such reasonable expenses as the Landlord may incur in reentering, and
then to the payment of the rent due by the Tenant. The Tenant, however, shall
continue to remain liable for any deficiency. Notwithstanding anything to the
contrary contained herein, Tenant shall have the right to terminate this
Agreement on ninety (90) days prior written notice pursuant to Section 2.
15. DEFAULT
-------
(a) It is expressly understood and agreed that subject to the
terms and conditions of the within Lease, in case the Leased Premises shall be
abandoned by Tenant, or if default be made in the payment of the fixed rent or
other monetary obligations due hereunder to be paid for by the Tenant and such
default shall continue for a period of thirty (30) days after written notice
7
from the Landlord to the Tenant, and if such default shall not have been
remedied or cured by Tenant within said thirty (30) day period; or
(b) If the Tenant defaults in the prompt and full performance of
any of the provisions of this Lease, or if the Tenant shall fail to comply with
any of the statutes, ordinances, rules, orders, regulations and requirements of
the federal, state, county and municipal government; and such default shall
continue for a period of thirty (30) days after written notice from the Landlord
to the Tenant, and if such default shall not have been remedied or cured by
Tenant within said thirty (30) day period, or if the Tenant shall file a
petition in bankruptcy or arrangement, or be adjudicated a bankrupt or make an
assignment for the benefit of creditors or take advantage of any insolvency act,
or any involuntary petition or similar pleading is filed in any court under any
section of any state or federal bankruptcy act seeking to declare Tenant
bankrupt or seeking a plan of reorganization for Tenant and such petition or
pleading is not removed within forty-five (45) days after its filing.
Notwithstanding the foregoing, Tenant shall be granted such additional time as
is reasonably required to remedy or cure any such default, provided, Tenant
diligently prosecutes such remedy or cure to completion.
(c) Then and in any such event of default under (a) and (b) above
Landlord may, with or without any demand whatsoever or further notice, pursue
any one or more of the following remedies: (i) Landlord shall have the right,
at its election, to cancel and terminate this Lease and dispossess Tenant; or,
(ii) Landlord shall have the right without terminating or canceling this Lease
to declare all amounts and rents due under this Lease for the remainder of the
existing term (or any applicable extension or renewal thereof) to be immediately
due and payable, and thereupon all rents and other charges due hereunder to the
end of the initial term or any renewal term, if applicable, shall be
accelerated; (iii) Landlord may elect to enter and repossess the Leased Premises
and relet the Leased Premises for Tenant's account, holding Tenant liable in
damages for all expenses incurred in any such reletting (including without
limitation advertising expenses, brokerage commissions, attorney's fees, and
repairs, replacements, alterations and improvements) and for any difference
between the amount of rent received from such reletting and that due and payable
8
under the terms of this Lease; or (iv) Landlord may enter upon the Leased
Premises and do whatever Tenant is obligated to do under the terms of this Lease
(and Tenant agrees to reimburse Landlord on demand for any reasonable expenses
which Landlord may incur in effecting compliance with Tenant's obligations under
this Lease and Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action)other than damages caused by
Landlord's negligence or willful misconduct. All such remedies of Landlord
shall be cumulative, and in addition, Landlord may pursue any other remedies
that may be permitted by law or in equity. Forbearance by Landlord to enforce
one or more of the remedies herein provided upon an event of default shall not
be deemed or construed to constitute a waiver of such default.
(d) It is expressly understood and agreed, however, that the
Landlord's right to terminate this Lease, pursuant to the terms and conditions
of the foregoing subparagraph (b) as to failure to comply with said statutes,
etc., of the federal, state, county and municipal government, shall be subject
to the Tenant's right of curing, or beginning to cure, any condition or event
upon which the Landlord relies for terminating this Lease, within thirty (30)
days after the written notice provided in subparagraph (a) above.
(e) Notwithstanding anything to the contrary contained herein,
Tenant shall have the right to terminate this Agreement on ninety (90) days
prior written notice pursuant to Section 2.
l6. NOTICES
-------
All notices required or permitted to be given to the Landlord or to
the Tenant shall be made in writing and given in person or by certified mail,
return receipt requested, or by reliable overnight carrier addressed to parties
hereto, at the addresses set forth on the first page of this Lease.
17. NONWAIVER BYPARTIES
--------------------
Failure of either party to insist upon the strict performance of
any provisions or to exercise any option or enforce any rules and regulations
shall not be construed as a waiver for the future of any such provision, rule or
option. The receipt by Landlord of rent with knowledge of the breach of any
9
provision of this Lease shall not be deemed a waiver of such breach. No
provision of this Lease shall be deemed to have been waived unless such waiver
be in writing signed by both parties. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent shall be deemed to be other
than on account of the earliest rent then unpaid nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy provided in this Lease.
18. LIABILITY OF TENANT FOR DEFICIENCY
--------------------------------------
In the event that the relation of the Landlord and Tenant may cease
or terminate by reason of the re-entry of the Landlord under the terms and
conditions contained in this Lease or by the ejectment of the Tenant by summary
proceedings or other judicial process, or after the abandonment of the premises
by the Tenant, it is hereby agreed that the Tenant shall remain liable to pay in
monthly payments the rent which accrued subsequent to the re-entry by the
Landlord, and the Tenant expressly agrees to pay as damages for the breach of
the covenants herein contained the difference between the rent reserved and the
rent collected and received (after deducting costs and expenses), if any, by the
Landlord, during the remainder of the unexpired term, and such difference or
deficiency between the rent reserved herein and the rent collected, if any,
shall become due and payable in monthly payments during the remainder of the
unexpired term, as the amounts of such difference or deficiency shall from time
to time be ascertained. Notwithstanding anything to the contrary contained
herein, Tenant shall have the right to terminate this Agreement on ninety (90)
days prior written notice pursuant to Section 2.
19. RIGHT OF TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS
-----------------------------------------------------------
Except as otherwise set forth herein, the Tenant may not make
alterations, additions or improvements to the Leased Premises without the
written consent of the Landlord which consent shall not be unreasonably
withheld, conditioned or delayed. Such alterations, additions or improvements
shall be in conformity with applicable governmental and insurance company
10
requirements and at the end of the term of this Lease shall either be removed by
the Tenant (without damage to real property or, if damage is caused to real
property, with adequate repairs thereto) or remain as part of the Leased
Premises. In the event the Landlord requires that they be removed the Tenant
shall place the Leased Premises in the same condition as it was prior to such
alterations, additions or improvements (reasonable wear and tear and loss due to
casualty excepted). Notwithstanding the foregoing, Landlord's approval shall
not be required for Tenant's installation of electrical outlets, sinks, and sink
connections.
20. NON-LIABILITY OF LANDLORD
---------------------------
Except if due to any leaks in the roof of the Premises or the
negligence or willful acts of Landlord, its agents or employees, it is expressly
understood and agreed by and between the parties to this agreement that the
Landlord shall not be liable for any damage or injury to person or property
caused by or resulting from steam, electricity, gas, water, rain, ice or snow,
or any leak or flow from or into any part of said building, or from any damage
or injury resulting or arising from any other cause or happening whatsoever, nor
shall Landlord be liable for any damage caused by other tenants, if any, or
person in, upon or about Leased Premises. It is expressly understood and
agreed, in any event, that the Tenant assumes all risk of damage to its property
occurring in or about the Leased Premises, except if due to the negligence or
willful act of Landlord or due to any leaks in the roof of the Premises.
21. HOLDOVER
--------
If the Tenant remains in the premises beyond the expiration date of
this Lease, as it may have been extended or renewed, such holding over in itself
shall not constitute a renewal or extension of this Lease, but in such event a
tenancy from "month to month" shall arise at two times the then monthly rent.
22. QUIET ENJOYMENT
----------------
Upon payment by the Tenant of the rents herein provided, and upon
the observance and performance of all the covenants, terms and conditions on
Tenant's part to be observed and performed, Tenant shall peaceably and quietly
hold and enjoy the Leased Premises for the term hereby demised without hindrance
11
or interruption by Landlord or any other person or persons lawfully or equitably
claiming by, through or under the Landlord, subject, nevertheless, to the terms
and conditions of this Lease.
23. RESERVATION OF EASEMENT
-------------------------
The Landlord reserves the right to grant itself easements and to
enter on the Leased Premises during normal business hours and after notice to
Tenant in order to install, at its own cost and expense, driveways, storm
drains, sewers and/or utility lines in connection therewith as may be required
by the Landlord, or to service, repair, have repaired or replaced, or install,
at its own cost and expense, the HVAC system, utility lines, sprinkler system,
and structural deficiencies. The Landlord covenants that any such easements
granted hereunder shall not have more than a de minimis adverse effect on the
Leased Premises or Tenant's use thereof and that Landlord shall use its best
efforts so that the foregoing work and easements shall not interfere with the
normal operation of Tenant's business.
24. ENVIRONMENTAL RESPONSIBILITY
-----------------------------
(a) Tenant expressly covenants and agrees to indemnify the
Landlord against any claim, damage, liability, costs, penalties or fines
(whether resulting from failure to obtain required permits, or otherwise) which
the Landlord may suffer as a result of the Tenant's violation of any portion of
ISRA, the Spill Act or any other environmental pollution to the extent caused by
the Tenant in its use of the Leased Premises. The Tenant covenants and agrees
to notify the Landlord immediately of any claim or notice served upon it with
respect to any such claim the Tenant is in violation of ISRA or the Spill Act or
is causing other environmental pollution and at its sole cost and expense to
immediately take any and all actions required by law.
(b) Upon the Tenant's removal from the premises Tenant agrees, at
all times after said removal to comply with and to indemnify, defend and save
Landlord harmless in respect to any and all claims or causes or actions which
may be asserted against Landlord by reason of Tenant's violation of ISRA, the
Spill Act and any other environmental laws to the extent such violation is
caused by Tenant in its use of the Leased Premises.
12
(c) The Tenant hereby agrees not to handle, store or dispose of
any hazardous or toxic waste substance upon the Premises which is prohibited by
any federal, state or local statute, ordinance or regulation, except in
compliance with such applicable laws.
25. SUBORDINATION OF LEASE
------------------------
This Lease and the term and estate hereby granted are and shall be
subject and subordinate to the lien of all mortgages which may now or at any
time hereafter affect all or any portion of the land or building of the
Landlord's interest therein, and to all renewals, modifications, consolidations,
replacements and extensions thereof. The foregoing provisions for the
subordination of this Lease shall be self-operative and no further instrument
shall be required to effect any such subordination; but Tenant shall, however,
upon request by Landlord, at any time or times execute and deliver any and all
instruments in a form reasonably acceptable to Tenant that may be necessary or
proper to effect such subordination or to confirm or evidence the same. If
Tenant shall fail or otherwise refuse to execute a subordination in accordance
with this paragraph, then, and upon such event, Tenant shall be deemed to have
appointed Landlord and Landlord shall thereupon be regarded as the
attorney-in-fact of Tenant, duly authorized for the sole purpose of executing
and delivering the required subordination for and on behalf of Tenant. Landlord
shall use its best efforts to obtain from any mortgagee an agreement providing
that so long as Tenant is not in default under the terms of this Lease, the
leasehold estate of Tenant created hereby and Tenant's peaceful and quiet
possession of the Demised Premises shall be undisturbed by any foreclosure so
long as Tenant continues to comply with the terms of this Lease.
26. SURRENDER OF DEMISED PREMISES
--------------------------------
Upon the expiration or other termination of the term of this Lease,
Tenant shall quit and surrender to the Landlord the Leased Premises, broom clean
and in good order, ordinary wear and tear and loss due to casualty excepted.
Subject to the provisions herein, the Tenant shall remove all property of the
Tenant as directed by Landlord, and failing to do so, Landlord may cause all of
said property to be removed at the cost and expense of the Tenant, and Tenant
13
agrees to promptly pay all costs and expenses incurred thereby. The Tenant's
obligations under this section shall survive the expiration or termination of
this Lease.
27. CONDEMNATION
------------
If the whole or any part of the Leased Premises shall be acquired
or condemned by eminent domain for any public or quasi-public use or purpose,
then the term of this Lease shall, at the option of either party, cease and
terminate as of the date of title vesting in such proceedings and all rentals
shall be paid up to that date and Tenant shall have no claim against Landlord
nor the condemning authority for the value of any unexpired term of this Lease.
Tenant shall be entitled to seek a separate award against the condemning
authority for its fixtures, equipment and moving expenses but same shall have no
affect upon Landlord's claim.
28. FEES AND EXPENSES
-------------------
(a) In case suit shall be brought for recovery of possession of
the Leased Premises, for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of Tenant to be kept or performed, and a breach shall be
established, Tenant shall pay to Landlord all expenses incurred therefore,
including a reasonable attorney's fee.
(b) In the event Tenant shall fail to pay any rent or other sums
due, and such failure shall continue for thirty (30) days, then, in addition to
Landlord's rights herein, interest shall accrue thereon at the rate of eight
percent (8%) per annum from the thirty-first day after due date to the date of
payment.
29. NO REPRESENTATIONS BY LANDLORD
---------------------------------
Neither Landlord nor Landlord's agents have made any
representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the Leased Premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the Premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease. Tenant has inspected the building
14
and the Leased Premises and is thoroughly acquainted with their condition, and
agrees to take the same "as is" and acknowledges that the taking of possession
of the Leased Premises by Tenant shall be conclusive evidence that the Leased
Premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects and condition of the roof. All understandings and agreements
heretofore made between the parties hereto are merged in this contract, which
alone fully and completely expresses the agreement between Landlord and Tenant
and any executory agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of it in whole or in part, unless
such executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
30. GOVERNING LAW
--------------
The Lease shall be governed in all respects by the laws of the
State of New Jersey.
31. CLEANING AND HEATING, VENTILATION AND AIR-CONDITIONING
-----------------------------------------------------------
(a) Except as otherwise provided herein and at no additional
cost to Tenant, Landlord shall cause the Leased Premises to be cleaned to the
same extent in which such Leased Premises are being cleaned as of the date of
this agreement.
(b) Landlord, at its sole cost and expense, shall maintain and
operate the Building's heating, ventilating and air-conditioning systems (herein
collectively called the "HVAC system") and shall furnish ventilation, cooling
and heat in the Leased Premises and Common Storage Areas through the HVAC system
during Tenant's regular business hours and in such amounts sufficient for the
conduct of Tenant's use specified in Section 4.
32. BIND AND INURE
----------------
The terms, covenants and conditions of the written Lease shall be
15
binding upon and inure to the benefit of each of the parties hereto, their
respective executors, administrators, heirs and successors and assigns, as the
case may be.
33. SEVERABILITY
------------
If any term, covenant, condition or provision of this Lease, or the
application therefor to any person or circumstance, shall ever be held to be
invalid or unenforceable, then in each such event the remainder of this Lease or
the application of such term, covenant, condition or provision to any other
person or any other circumstance (other than those as to which it shall be
invalid or unenforceable) shall not be thereby affected, and each term,
covenant, condition and provision hereof shall remain valid and enforceable to
the fullest extent permitted by law.
34. SECURITY
--------
Landlord shall provide, at no additional cost to Tenant, building
security to the Premises in the same manner as has been provided by Landlord to
Tenant prior to the date hereof. Landlord shall have no liability whatsoever
for any damages, costs, or expenses incurred by Tenant or its employees or
invitees resulting from insufficient security at the Leased Premises. Tenant
shall be solely responsible for obtaining and paying for any additional security
it deems necessary or appropriate to protect its property and for the safety of
its employees or invitees.
35. ACCESS
------
Tenant and its employees, licensees, and invitees shall have access
to the Leased Premises and Common Storage Areas at all times, 24 hours per day,
365 days per year, for the conduct of Tenant's business in accordance with the
terms of this Lease Agreement.
16
IN WITNESS WHEREOF, the parties hereto above placed their hands and
seals or caused these presents to be signed by their proper corporate officers
and caused their proper corporate seals to be hereunto affixed, the day and year
first above written.
WITNESS: NEW BRUNSWICK SCIENTIFIC CO., INC.
______________________ By:________________________________
Name:
Title:
WITNESS: DGI BIOTECHNOLOGIES, INC.
______________________ By:________________________________
Name:
Title:
17