COMMERCIAL LEASE
THIS LEASE is made on the 1st day of December , 2003.
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The Landlord hereby agrees to lease to the Tenant, and the Tenant hereby agrees
to hire and take from the Landlord, the Leased Premises described below pursuant
to the terms and conditions specified herein:
LANDLORD: Union Square, L.P. TENANT(S): PROTALEX, Inc.
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Address: P.O. Box 59 Address: 717 Encino N. E., Suite 17
New Hope, PA 18938 Albuquerque, NM 87102
Telephone: (215) 862-1014 Telephone: 215-598-1179
Facsimile: (215) 862-1023 Facsimile: 215-598-9590
1. Leased Premises. The Leased Premises are those premises described as:
Building: "A" Building
Address: _145_ Union Square Drive
New Hope, PA 18938
Gross Floor Area of Leased Premises: 3,795 square feet, pursuant to attached
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plan.
2. Term.
A. The term of the Lease ("Initial Term") shall be for a period
of Three ( 3 ) years, unless sooner terminated or extended, as
hereinafter provided, and shall commence on the 9th day of
January , 200_4 ("Commencement Date") and end on the 28th day
of February , 200_7 ("Expiration Date").
B. Commencement Date of the Initial Term is determined by
allowing sixty working days for build-out of the Leased
Premises, from the date Landlord receives a building permit
for the Leased Premises. (See Paragraph 9 below, Delivery of
Possession.)
C. If Tenant remains in possession of the Leased Premises with
the written consent of the Landlord after the lease Expiration
Date stated above (without exercising, if applicable, an
option to extend) this Lease will be converted to a
month-to-month Lease and each party shall have the right to
terminate the Lease by giving at least one month's prior
written notice to the other party.
D. The period commencing on the day the tenancy begins, and
ending on the last day of the twelfth month next succeeding
the commencement of the Initial Term of this Lease, shall
constitute the first lease year as used herein, and each
successive period of twelve months shall constitute a lease
year.
3. Option to Extend. Tenant is granted the right and option to extend the term
of this Lease for an additional one or two years beyond the Initial Term hereof
(each, an "extension period", together with the Initial Term, the "Term"), the
first extension period to commence upon the expiration of the initial term of
this Lease, provided that: A. Such option must be exercised, if at all, by
written notice from Tenant to Landlord given at least six (6) months prior
to the expiration of the then current Term;
B. At the time of exercising each option, and at the commencement
of each extension period, this Lease shall be in full force
and effect and there shall exist no Event of Default by
Tenant; and
C. In the event the foregoing option is effectively exercised,
all the terms and conditions contained in this Lease shall
continue to apply during any extension period.
4. Base Rent.
A. The Tenant agrees to pay the ANNUAL BASE RENT of Ninety-One
Thousand, Eighty Dollars ($91,080.00 ) payable in equal
installments of $7,590.00 in advance on the first day of each
and every calendar month during the Initial Term of this Lease
without deduction or demand. (Note: See Paragraph 6,
Additional Rent, below)
B. Rent shall be payable to Landlord's address above.
C. Rent shall increase 5% per year during the Initial Term. Rent
for years one and two of the optional extension period of this
Lease shall increase at 2.5% per year.
D. Tenant shall pay a "late charge" of ten percent (10%) each
month on a cumulative basis of any installment of Rent (or any
such charge as may be considered Additional Rent under this
Lease) when paid more than ten (10) days after the due date.
E. Tenant shall pay $50.00 for any checks returned by the bank
for insufficient funds.
5. Base Rent Adjustment. If in any tax year commencing with the fiscal
year 2005 , the real estate taxes and property insurance on the land
and Building, of which the Leased Premises are a part, are in excess of
the amount of real estate taxes and property insurance thereon for the
fiscal year 2003 (hereinafter called the "Base Year"), Tenant will pay
to Landlord as Additional Rent hereunder, when and as designated by
notice in writing by Landlord, 100% percent of Tenant's proportionate
share of such increase in the real estate taxes and property insurance
over the Base Year that may occur in each year of the term of this
Lease or any extension or renewal thereof and proportionately for any
part of a fiscal year.
6. Additional Rent.
A. All sums of money required to be paid by Tenant under this
Lease (except for Base Rent), whether or not the same are
designated "Additional Rent", shall be owed by Tenant to
Landlord as rent. Base Rent and Additional Rent shall be
referred to sometimes as Rent.
B. Electric utilities for year one shall be charged for at a rate
of $2.00 per square foot ($632.50 per month).
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Utilities for subsequent years of the Term, or any extension
period thereof, shall be based on Tenant's pro-rata
share of the average monthly electric bill from year one of
the Lease Term. In the event Tenant, and the tenant
for the adjacent space at 140 Union Square Drive, agree upon
terms to divide proportionate shares of the actual
monthly metered electric utility bill for the entire 6,164
square foot space, this Additional Rent shall
terminate and the electric utility bill shall be agreed upon
and paid for by the two tenant parties. If this
agreement for pro rata payment between the two tenant parties
terminates, then Tenant shall resume payment as
designated above, beginning with year two.
7. Common Area Maintenance Rent. Tenant shall be required to pay to
Landlord Additional Rent for maintenance of common areas, which shall
include cleaning of common hallways, washing the interior and exterior
of windows, common area utilities, trash removal, snow removal,
landscape maintenance and any other maintenance expenses that are of a
general nature. The annual amount of Common Area Maintenance Rent for
the first year of this Lease term is $2.00 per square foot of gross
floor area. The monthly amount of Common Area Maintenance Rent for the
Leased Premises for year one is $632.50.
8. Security Deposit. Upon execution of this Lease, the sum of
Seven Thousand, Five Hundred Ninety Dollars ($7,590.00 )
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shall be deposited by the Tenant with the Landlord as security for the
faithful performance of all the covenants and
conditions of the lease by the said Tenant ("Security Deposit").
The Security Deposit is not an advance rent deposit or
measure of Landlord's damages in case of Tenant's default. Upon each
occurrence of an Event of Default hereunder,
Landlord may use all or part of the Security Deposit to pay delinquent
payments due under the Lease and the cost of any
damages injury, expense of liability caused by such Event of Default
without prejudice to any other right or remedy
provided under this Lease, and law or in equity. Tenant shall pay
Landlord on demand the amount that will restore the
Security Deposit to its original amount. If the Tenant faithfully
performs all the covenants and conditions on his part
to be performed, then the Security Deposit (or portion thereof
remaining) shall be returned to the Tenant, without
interest. This Security Deposit is not required to be placed in an
escrow account.
9. Delivery of Possession. If for any reason
the Landlord cannot deliver possession of
the Leased Premises to the Tenant on the
Commencement Date, this Lease shall not be
void or voidable, nor shall the Landlord be
liable to the Tenant for any loss or damage
resulting therefrom. However, there shall be
an abatement of Rent for the period between
the date upon which the Landlord delivers
possession, which shall become the adjusted
Commencement Date of the Term of this Lease
and the date of payment for the initial
installment of Base Rent.
10. Use of Premises. The Leased premises may be
used only for the following purpose(s):
Office space and bio-tech
laboratory
11. Condition of Leased Premises; Maintenance and Repair: At the time of
delivery of possession, the Leased Premises shall be in good order and
repair and in the condition described in the Specifications for Union
Square attached hereto as Exhibit B. The Tenant agrees to take good
care of and maintain the Leased Premises in good condition through the
term of the lease.
Subject to the provisions of this Lease, Tenant shall make and pay the
costs of all repairs and maintenance of all interior painting; repairs
and maintenance of approved signs; and repairs and replacements of all
floor coverings, lighting, and other fixtures and equipment inside the
Leased Premises, and repair and restoration of all damaged plate glass
in the Leased Premises unless such repairs are required due to the
neglect of Landlord. Landlord will maintain the HVAC system at its sole
cost, unless any repairs are a result of the Tenant's negligence, in
which case, Tenant shall pay as Additional Rent, the cost of any such
repairs. In the event Tenant's fit-out to the previously existing space
layout require HVAC adjustment, any such adjustments shall be at
Tenant's expense.
12. Utilities. Responsibility for all utilities and services that are furnished
to the Leased
Premises shall be as designated below. The application for and
connecting of utilities, as well as all services, shall be made by and
only in the name of the responsible party.
Electric Tenant (see 6 B. above) Water/Sewer Tenant
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Trash Landlord Cleaning (interior) Tenant Telephone Tenant
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13. Compliance with Laws and Regulations. Tenant, at its expense, shall
promptly comply with all federal, state, and municipal laws, orders,
and regulations, and with all lawful directives of public officers,
which impose any duty upon it or Landlord with respect to the Leased
Premises. Tenant at its expense, shall obtain all required licenses or
permits for the conduct of its business within the terms of this Lease,
or for the making of repairs, alterations, improvements, or additions
to the Leased Premises after delivery of possession. Landlord, when
necessary, will join with the Tenant in applying for all such permits
or licenses.
14. Alterations and Improvements. Tenant shall not make any alterations,
improvements or additions to the Leased Premises
without the prior written consent of Landlord, which consent shall
not be reasonably withheld. Tenant shall supply
Landlord with a list of contractors and subcontractors, and
with plans and specifications for all such alterations,
improvements and additions prior to requesting such consent.
All alterations, improvements and additions made by Tenant
shall remain upon the Leased Premises at the expiration or earlier
termination of this Lease and shall become the
property of Landlord unless Landlord shall, prior to or after
the termination of this Lease, have given written notice to
Tenant to remove same or any of same, in which event Tenant shall
remove such alterations, improvements and additions and
restore the Premises to the same good order and condition in which
it was on the Commencement Date. Should Tenant fail
so to do, Landlord may do so, and Tenant shall reimburse Landlord
for Landlord's expenses, on demand. All of such
alterations, improvements or additions shall be made solely
at Tenant's expense; and Tenant agrees to indemnify, defend
and save harmless Landlord (a) on account of any injury to third
persons or property by reason of any such improvements,
additions or alterations, and (b) from the payment of any claim
on account of bills for labor or materials furnished or
claimed to have been furnished in connection therewith. Tenant
agrees to procure all necessary licenses, permits and
approvals before undertaking such work and to do all such work in
a good and workmanlike manner, employing materials of
first class quality and complying with all applicable governmental
requirements.
15. Assignment/Subletting Restrictions. Tenant may not assign this
agreement or sublet the Leased Premises without the prior written
consent of the Landlord, which consent shall not be unreasonably
withheld. Any assignment, sublease or other purported license to use
the Leased Premises by Tenant without the Landlord's consent shall be
void and shall (at Landlord's option) terminate this Lease. In the
event that Landlord shall provide its consent to an assignment or
sublease of the Leased Premises, such consent (i) shall not constitute
a waiver of Landlord's right to withhold its consent to a subsequent
assignment or sublease; and (ii) shall not reduce Tenant's obligations
under the Lease.
16. Insurance.
A. By Landlord. Landlord shall at all times during the term of
this Lease, at its expense, insure and keep in effect on the
Building in which the Leased Premises are located, fire
insurance with extended coverage. The Tenant shall not permit
any use of the Leased Premises which will make voidable any
insurance on the property of which the Leased Premises are a
part, or on the contents of said property or which shall be
contrary to any law or regulation from time to time
established by the applicable fire insurance rating
association. Tenant shall on demand reimburse the Landlord,
and all other tenants, the full amount of any increase in
insurance premiums caused by the Tenant's use of the premises.
B. By Tenant. Tenant shall, at its expense, during the term
hereof, maintain and deliver to Landlord, upon request, public
liability and property damage and plate glass insurance
policies with respect to the Leased Premises. Such policies
shall name the Landlord and Tenant as insured, and have limits
of at least $1,000,000.00 for injury or death to any one
person and $1,000,000.00 for any one accident, and with
respect to damage to property and with full coverage for plate
glass. Such policies shall be in whatever form and with such
insurance companies as are reasonably satisfactory to
Landlord, and shall name the Landlord as additional insured,
and shall provide for at least ten days prior notice to
Landlord of cancellation.
17. Indemnification of Landlord. Tenant shall defend, indemnify, and hold
Landlord harmless from and against any claim, loss, expense or damage
to any person or property in or upon the Leased Premises, arising out
of Tenant's use or occupancy of the Leased Premises, or arising out of
any act or neglect of Tenant or its servants, employees, agents, or
invitees.
18. Condemnation. If all or any part of the Leased Premises is
taken by eminent domain, this Lease shall expire on the date
of such taking, and the rent shall be apportioned as of that
date. No part of any such award shall belong to Tenant.
19. Destruction of Premises. If the building in which the Leased
Premises is located is damaged by fire or other casualty,
without Tenant's fault, and the damage, in Landlord's sole
judgment, is so extensive as to effectively constitute a total
destruction of the property or building, this Lease shall
terminate and the Rent shall be apportioned to the time of the
damage. In all other cases of damage without Tenant's fault,
Landlord shall repair the damage with reasonable dispatch, and
if the damage has rendered the Leased Premises wholly or
partially untenable, the Rent shall be apportioned until the
damage is repaired. In determining what constitutes reasonable
dispatch, consideration shall be given to delays caused by
strikes, adjustment of insurance, and other causes beyond the
Landlord's control.
20. Default. Each of the following shall constitute an Event of
Default ("Event of Default"):
A. Failure to Pay Annual Base Rent. Tenant fails to pay any
installment of Base Rent within ten (10) days after such
installment is due and payable; or
B. Other Payment Failure. Tenant fails to pay any utility,
Additional Rent or other charge or payment due or payable by
Tenant under this Lease on any day upon which the same shall
be due and payable, if such failure continues for ten (10)
days after receipt of written notice that he same is due and
payable; or
C. Other Violations. Tenant defaults in the performance of any
other obligation, covenant or agreement of Tenant to be
performed or observed under this Lease, and such default
continues and is not cured by Tenant within ten (10) days
after Landlord has given to Tenant a written notice specifying
the same (provided that if such default cannot reasonably be
cured within 10 days, no Event of Default shall occur if
Tenant initiates such cure within the 10 day period and
diligently pursues it to completion in a reasonable time
thereafter), but in no event shall such period exceed the
lesser of (i) an additional sixty (60) days or (ii) the
remaining term of the Lease; or
D. Occupancy. Tenant fails to assume occupancy of the Leased
Premises, to open its business or to operate its business in
the Leased Premises pursuant to the provisions of this Lease.
E. Judgment. Any execution or attachment is issued against Tenant
or any of Tenant's property and is not discharged or vacated
within the twenty (20) days after issuance thereof.
F. Insolvency. Tenant makes an assignment for the benefit of
creditors or becomes a party or subject to any liquidation or
dissolution action or proceeding, or the institution of any
bankruptcy, reorganization, insolvency or other proceeding for
the relief of financially distressed debtors with respect to
Tenant, or a receiver, liquidator, custodian or trustee being
appointed for Tenant or a substantial part of Tenant's assets
and, if any of the same occur involuntarily, the same is not
dismissed or discharged within thirty (30) days; or the entry
of an order or relief against Tenant under Title II of the
United States Code entitled "Bankruptcy"; or Tenant taking any
action to effect, or which indicates Tenant's or acquiescence
in, any of the foregoing.
21. Landlord's Rights upon Default. Upon the occurrence of an
Event of Default, the Landlord may exercise any or all of its
rights under this Lease, in addition to those it may have at
law or in equity.
A. Termination. Upon the occurrence of any one or more of such Event of
Default, Landlord may serve upon Tenant a notice that this Lease will terminate
on a date to be specified therein, and Tenant shall have no right to avoid the
cancellation or termination by payment of any sum due or by other performance of
any condition, term or covenant broken, and notwithstanding any statute, rule or
law, or decision of any court to the contrary, Tenant shall remain liable as set
forth hereinafter for rent and any other charges due Landlord under this Lease,
plus the costs incurred by Landlord to prepare leased Premises for a new Tenant.
B. Right of Possession. Upon any Event of Default, and if the notice
provided for in Paragraph 21 A above shall have been given and this
Lease shall be terminated; or if the Leased Premises becomes vacant or
deserted; then in all or any of such events, in addition to and not in
lieu of, all other remedies of Landlord, Landlord may without notice
terminate all services (including, but not limited to, the furnishing
of utilities) and re-enter the Leased Premises, either by force or
otherwise, and/or by summary proceedings or otherwise disposes Tenant,
and remove its effects and repossess and enjoy the Leased Premises,
together with all alterations, additions and improvements, all without
being liable to prosecution or damages therefore.
22. Additional Remedies of Landlord.
A. In the event of any Event of Default, re-entry, termination
and/or dispossession by summary proceedings or
otherwise, in addition to, and not in lieu of, all
other remedies which Landlord has under this Lease, at law or
in equity; (1) the Base Rent, Common Area Maintenance
Rent and all Additional Rent shall become due thereupon and
be paid up to the time of such re-entry, dispossession
and/or expiration; and (2) Landlord may relet the Leased
Premises or any part of parts thereof, either in the name
of Landlord or otherwise for a term of rental which may
at Landlord's option be less than or exceed the period
which would otherwise have constituted the balance of the
term of this Lease, and at such rental or rentals and
upon such other terms and conditions as Landlord, in its
sole discretion, may deem advisable. Landlord may
make such alterations and repairs as Landlord deems necessary
in order to relet the Leased Premises upon each such
reletting all rentals received by Landlord from such
reletting shall be applied, first, to the payment of
any costs and expenses of such reletting, including
brokerage fees, attorneys' fees and costs of such
alterations and repairs; second, to the payment of any
indebtedness other than rent due hereunder from Tenant
to Landlord; third, to the payment of rent due and unpaid
hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future rent as the same
may become due and payable hereunder. If such rents
received from such reletting during any month are less than
that to be paid during that month by Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly.
No such reentry or taking possession of the Leased Premises by
Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such
intention be given to Tenant or unless the termination
thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination,
Landlord may at any time thereafter elect to terminate
this Lease for such previous breach.
B. Landlord shall have the election, in place and instead of
holding Tenant so liable, to recover against Tenant, as
liquidated damages for loss of the bargain and not as a
penalty, a sum equal to the monthly amount of Base Rent and
all Additional Rent multiplied by the number of months and
fractional months which would have constituted the balance of
the term (or such lesser time period specified by Landlord),
together with costs and reasonable attorney's fees. Actions to
collect amounts due by Tenant may be brought from time to
time, on one or more occasions, without the necessity of
Landlord's waiting until the expiration of the Lease term.
D. Tenant hereby expressly waives the service of notice of
intention to re-enter or to institute legal proceedings
granted by or under any present or future laws in the event of
Tenant being evicted or disposed for any cause, or in any
event of Landlord obtaining possession of the Leased Premises
by reason of the violation by Tenant of any of the covenants
and conditions of this Lease or otherwise. The words
"re-enter" and "re-entry" as used in this Lease are not
restricted to their technical legal meaning.
23. CONFESSION OF JUDGMENT. (THIS CLAUSE SHALL APPLY PROVIDED TENANT'S
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DEFAULT IS NOT DUE TO LANDLORD'S FAILURE TO PERFORM
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UNDER THE TERMS OF THE LEASE.) IF THE BASE RENT, ADDITIONAL RENT
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AND/OR OTHER CHARGES HEREBY RESERVED AS RENT SHALL
REMAIN UNPAID FOR A PERIOD OF TEN (10) DAYS AFTER THE DAY WHEN
THE SAME SHOULD BE PAID IN ACCORDANCE WITH THE TERMS OF
THIS LEASE, OR IF THE TENANT DEFAULTS OR BREACHES ANY OF THE TERMS,
CONDITIONS OR COVENANTS OF THIS LEASE, AND FAILS TO
CURE SUCH DEFAULT OR BREACH WITHIN THE APPLICABLE PERIOD OF TIME,
PROVIDED PRIOR WRITTEN NOTICE IS PROVIDED TO THE
TENANT, THE TENANT HEREBY GRANTS THE FOLLOWING WARRANT OF ATTORNEY:
TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
PROTHONOTARY, CLERK OF COURT OR ATTORNEY OF ANY COURT OF RECORD,
TO APPEAR FOR THE TENANT IN ANY AND ALL ACTIONS WHICH
MAY BE BROUGHT FOR SUCH RENT AND/OR CHARGES AND TO CONFESS AND
ENTER JUDGMENT AGAINST THE TENANT AND IN FAVOR OF
LANDLORD, ITS SUCCESSORS OR ASSIGNS, FOR ALL OF ANY PART OF THE
BASE RENT OR ADDITIONAL RENT SPECIFIED IN THIS LEASE AND
THEN UNPAID INCLUDING, AT THE OPTION OF LANDLORD, THE RENT FOR THE
ENTIRE UNEXPIRED BALANCE OF THE TERM OF THIS LEASE,
AND/OR OTHER CHARGES, COSTS AND EXPENSES RESERVED AS RENT OR AGREED
TO BE PAID BY THE TENANT AND FOR INTEREST AND COSTS
TOGETHER WITH REASONABLE ATTORNEY'S FEES. SUCH AUTHORITY SHALL NOT
BE EXHAUSTED BY ONE EXERCISE THEREOF, AND JUDGMENT
MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY
OF THE SAID RENT AND/OR CHARGES RESERVED AS RENT SHALL
FALL DUE OR BE IN ARREARS. THIS PROVISION SHALL BE ENFORCEABLE
ONLY PURSUANT TO LEGAL AUTHORITY EXISTING AT THE TIME OF
SUCH CONFESSION AND SHALL OTHERWISE NOT INVALIDATE THE REMAINING
TERMS AND CONDITIONS OF THIS LEASE AGREEMENT. TENANT
RELEASES AND AGREES TO RELEASE LANDLORD, AND ANY AFOREMENTIONED
ATTORNEY, FROM ALL ERRORS AND DEFECTS WHATSOEVER OF A
PROCEDURAL NATURE IN ENTERING SUCH JUDGMENT OR IN CAUSING SUCH
WRIT OR PROCESS TO BE ISSUED OR IN ANY PROCEEDING THEREON
OR CONCERNING THE SAME.
Tenant initials
24. Care and Operation of Premises.
A. The Leased Premises, including Tenant's windows and signs, shall
be kept neat, clean and in good repair and order by Tenant at
Tenant's expense. Tenant shall store all of Tenant's trash,
garbage, and other refuse in suitable receptacles within the
Leased Premises and shall be responsible for the removal and
disposition of refuse from the Leased Premises to proper container
areas provided by Landlord.
B. Tenant shall not cause or permit any unusual or objectionable
noises or odors to emanate from the Leased Premises, or permit
the playing or making of any music, sound or advertising
matter which can be heard outside of the Leased Premises.
Tenant agrees that no noxious fumes or hazardous wastes or
chemicals will be used on or emitted from the Leased Premises
in the daily conduct of the Tenant's business.
C. Tenant shall not obstruct, encumber or use for any purposes,
other than ingress or egress to and from the Leased Premises,
the sidewalks in front of or abutting any part of the Leased
Premises or the entrances or vestibules thereof and no selling
shall be conducted or products displayed by Tenant anywhere
within the Union Square Condominium outside the Leased
Premises unless the same shall be expressly permitted by this
Lease.
25. Gross Floor Area. For the purpose of this Lease, "gross floor area"
shall be deemed to mean the area within the exterior faces of the
exterior walls (except party walls and walls between spaces occupied by
two or more separate occupants, in both of which cases the center of
the wall in question shall be used instead of the exterior face
thereof) of all floors, without deduction or exclusion for any space
occupied by or used for columns or other interior construction or
equipment servicing the Leased Premises, and any common hallway
directly behind leased area.
26. Signs. Tenant shall post no signs unless specifically approved by Landlord.
All signs shall
conform to all zoning codes and of such size, color, design and
character and in such location as Landlord shall approve in writing. No
other signs, lettering or other forms of inscription or advertising
devices shall be displayed on the exterior of the Leased Premises or on
the inner or on the outer face of the windows, entrances, or doors,
without prior written approval of Landlord. Landlord reserves to itself
the exclusive right to the use of the roof of the Building for all
purposes.
27. Common Areas.
A. Landlord reserves the right to make changes, additions, alterations or
improvements in or to the common areas of the Building; provided,
however that there shall thereby be caused no unreasonable obstruction
of Tenant's right of access to the Leased Premises, or any unreasonable
interference with Tenant's use of the Leased Premises, or any reduction
in the minimum required size of such common areas.
B. Tenant will at its expense, keep the areas immediately in front of its
doors free of debris, et cetera.
28. Rules and Regulations. Tenant, and its servants, employees, agents,
licensees and concessionaires shall observe faithfully and comply with
such reasonable rules and regulations existing for the property or
those which may be from time to time adopted by the Landlord governing
the use of the common areas. The Landlord reserves the right from time
to time to make reasonable changes in such rules and regulations and to
make reasonable changes, additions, alterations or improvements in or
to such common areas. Tenant further agrees that it is bound by all of
the covenants, terms, conditions, requirements and rules and
regulations in the Declaration of Condominium, Bylaws, and Rules and
Regulations of Union Square Condominium.
29. Extraneous Warranties and Representations. Landlord or Landlord's
agents have made no representations, warranties or promises with
respect to the Union Square Condominium, the Building, or the Leased
Premises, except as herein expressly set forth.
30. Landlord's Right to Enter. Landlord may, at reasonable times, and with
prior notice (except in case of emergency) enter the Leased Premises to
inspect it, to make repairs or alterations, and to show it to potential
buyers, lenders or tenants.
31. Surrender upon Termination. At the end of the Lease term Tenant shall
peaceably surrender the Leased Premises to Landlord in as good
condition as it was in at the beginning of the term, reasonable use and
wear excepted.
32. Quiet Enjoyment. Landlord agrees that if Tenant shall pay the rent as
aforesaid and perform the covenants and agreements herein contained on
its part to be performed, Tenant shall peaceably hold and enjoy the
said Leased Premises without hindrance or interruption by Landlord or
by any other person or persons acting under or through Landlord.
33. No Smoking Building. The Building in which the Leased Premises is
located is a non- smoking building and Tenant agrees that neither
Tenant, his employees, guests or clients will be allowed to smoke in
the Building.
34. Subordination. This Lease, and the Tenant's leasehold interest, is and
shall be subordinate, subject and inferior to any and all mortgages,
liens, security interests and encumbrances now and thereafter placed on
the Leased Premises by Landlord, any and all extensions, renewals,
consolidations, assignments and refinancings (collectively,
"Mortgages") of such mortgages, liens, security interests and
encumbrances and all advances paid under such mortgages. In the case
that Landlord's interest under the Mortgage shall terminate for any
reason and if the holder of any such Mortgage ("Mortgagee") or if the
grantee of a deed in lieu of foreclosure, or if the purchaser at any
foreclosure sale or at any sale under a power of sale contained in any
such Mortgage shall at its sole option so request, Tenant shall attorn
to, and recognize such Mortgagee, grantee or purchaser, as the case may
be, as Landlord under this Lease for the balance then remaining of the
term of this Lease, subject to all terms of this Lease. The aforesaid
provisions shall be self operative and no further instrument or
document shall be necessary unless required by any such Mortgagee,
grantee or purchaser. Notwithstanding anything to the contrary set
forth above, any Mortgagee may at any time subordinate its Mortgage to
this Lease, without Tenant's consent, by execution of a written
document subordinating such Mortgage to this Lease, and thereupon this
Lease shall be deemed prior to such Mortgage.
35. Execution of Estoppel Certificate. At any time Landlord or any
Mortgagee, can require Tenant, within 20 days of the date of such
written request, to execute and deliver to Landlord and/or such
Mortgagee, without charge and in a form satisfactory to Landlord and/or
such Mortgagee, a written statement: (a) ratifying this Lease; (b)
confirming the commencement and expiration dates of the term of this
lease; (c) certifying that Tenant is in occupancy of the Leased
Premises, and that the Lease is in full force and effect and has not
been modified, assigned, supplemented or amended except by such
writings as shall be
stated; (d) certifying that all conditions and agreements under this
Lease to be satisfied or performed by Landlord have been satisfied and performed
except as shall be stated; (e) certifying that Landlord is not in default under
the Lease and thereafter no defenses or offsets against the enforcement of this
Lease by Landlord, or stating the defaults and/or defenses claim by Tenant; (f)
reciting the amount of advance rent, if any, paid by Tenant and the date to
which such rent has been paid; (g) reciting the amount of Security Deposited
held by Landlord, if any, and (h) any other information which Landlord or the
Mortgagee shall reasonably require.
36. Miscellaneous Terms:
A. Notices. Any notice, statement, demand or other communication
by one party to the other, shall be given by personal
delivery, by mailing the same by certified mail, return
receipt requested, postage prepaid or by private delivery
service guaranteeing overnight delivery, addressed to the
Tenant at the premises, or to the Landlord at the address set
forth above, or by facsimile transmission to the fax numbers
set forth above. The date of notice shall be deemed to be the
date personally delivered, the date fax, two (2) business days
after deposit in the United States mail, or one (1) business
day after deposited with overnight delivery service.
B. Severability. If any clause or provision herein shall be
adjudged invalid or unenforceable by a court of competent
jurisdiction or by operation of any applicable law, it shall
not affect the validity of any other clause or provision,
which shall remain in full force and effect.
C. Waiver. The failure of either party to enforce any of the
provisions of this lease shall not be considered a waiver of
that provision or the right of the party to thereafter enforce
the provision .
D. Waiver of Jury Trial. Landlord and Tenant do hereby waive the
right of Jury Trial in any action arising as a result of any
claim made under this Lease or in any other ways otherwise in
connection herewith. The parties understand that this will
result in any dispute not heard by a jury but will be heard by
a Judge or other proper party as the case may be.
E. Complete Agreement. This Lease constitutes the entire
understanding of the parties with respect to the subject
matter hereof and may not be modified except by an instrument
in writing and signed by the parties.
F. Brokers. Tenant represents and warrants to Landlord that
Tenant has had no dealing, negotiations or
consultations with respect to the Leased Premises or
this transaction with any broker or finder and that no
broker or finder called the Leased Premises or any other
space in the Union Square Condominium to Tenant's
attention. In the event that any broker or finder claims
to have submitted the Leased Premises or any other
space in the Union Square Condominium to Tenant, to
have induced Tenant to lease the Leased Premises or to have
taken part with Tenant or any of its principals, agents
or employees in any dealings, negotiations or
consultations with respect to the Leased Premises or
this transaction, Tenant shall be responsible for and shall
defend, indemnify and save Landlord harmless from and
against all costs, fees (including, without limitation,
reasonable attorney's fees), expenses, liabilities and
claims incurred or suffered by Landlord as a result
thereof.
37. Lease Documents. In addition to the Commercial Lease, the following are
attached to the Lease and are hereby incorporated in and made part of the Lease
as though fully set forth at length in the Lease: Exhibit A (Building Plan),
Exhibit B (Specifications for Union Square) and Exhibit C (Declaration of
Condominium Use Restrictions) and are collectively referred to as the "Lease
Agreement" or "Lease".
38. First Right of Refusal. Tenant shall have the First Right of Refusal to
lease contiguous space, upon availability, upon the same terms and at the same
Base Rent and Common Area Maintenance Rent rate as Tenant's then current rate.
IN WITNESS WHEREOF the parties intending to be legally bound, have set
their hands and seals on this day of , 2003.
LANDLORD:
UNION SQUARE, LIMITED PARTNERSHIP
Joanne W. Lutostansky
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Witness By: George E. Michael, Partner
TENANT:
PROTALEX, INC.
Steven Kane
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Witness By: Steven Kane, President, CEO