EXHIBIT 10.4
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Sublease Agreement
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is entered into as of the 10th day
of November, 2000 by and between Becton, Dickinson and Company, a New Jersey
corporation ("Sublessor"), having an office at 1 Becton Drive, Franklin Lakes,
New Jersey 07417, and Drug Delivery Technologies, Inc., a Delaware corporation
("Sublessee"), having an office at 535 Madison Avenue, New York, New York 10022.
WHEREAS, Lincoln Fair Lawn Associates, a New Jersey general partnership
(the "Prime Landlord") and Sublessor entered into that certain Lease Agreement
dated June 23, 1987, as amended by that certain First Amendment to Lease dated
November 19, 1991, as amended by that certain Second Amendment to Lease dated
June 10, 1996 (as it may be further amended from time to time hereafter, the
"Prime Lease"), a copy of which is attached hereto as EXHIBIT A and made a part
hereof, for certain premises located in a building at 13-01 Pollitt Drive, Fair
Lawn, New Jersey, as more particularly described in the Prime Lease (the
"Subleased Premises");
WHEREAS, Sublessor and Sublessee have agreed and desire to enter into a
sublease with respect to the Subleased Premises, all upon the terms and
conditions of this Sublease.
NOW THEREFORE, in consideration of the foregoing recitals and for good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. SUBLEASE. Sublessor hereby subleases to Sublessee and
Sublessee hereby subleases from Sublessor, the Subleased Premises in accordance
with the terms and conditions herein set forth.
2. TERM. The term of this Sublease shall commence on the
date first set forth above and, unless sooner terminated as provided elsewhere
herein, shall terminate on September 29, 2006 (the "Term").
3. RENT.
(a) BASE RENT. Sublessee shall pay to Sublessor as monthly
rent for use of the Subleased Premises a sum equal to the fixed monthly rent
payable by Sublessor under the Prime Lease (including any renewal term thereof)
("Base Rent"). Base Rent shall be payable in advance on the first day of each
month, without deduction or set-off. Sublessee, without notice, demand,
deduction or set-off whatsoever, shall make payments of Base Rent to Sublessor
in such manner and place as Sublessor may direct in writing. If any rental
payment date falls on a day of the month other than the first day of such month
or if any rental payment is for a period which is shorter than one month, then
the rental for any such fractional month shall be a proportionate amount of a
full calendar month's rental based on the proportion that the number of days in
such fractional month bears to the number of days in the calendar month during
which such fractional month occurs. All other payments or adjustments required
to be made under the terms of this Sublease that require proration on a time
basis shall be prorated on the same basis.
(b) ADDITIONAL RENT. Sublessee shall also pay, at such times
and in such manner as provided for in the Prime Lease, the pro rata share of the
estimated annual cost of taxes, insurance, repairs and replacements to the
exterior of the Subleased Premises and other items attributable to the Subleased
Premises that Sublessor is obligated to pay as "additional rent" under the Prime
Lease ("Additional Rent"). Sublessee shall not be obligated to pay, as
Additional Rent, the cost of depreciation or amortization of any leasehold
improvements constructed by the Prime Landlord during the term of the Prime
Lease for the benefit of the tenant of the Subleased Premises, such payments
being the obligation of Sublessor for the remainder of the Term.
(c) LATE PAYMENTS. In the event that installments of rent or
any other payments of money that may be due under this Sublease are not received
by Sublessor within ten (10) days after the applicable due date, there shall be
added to such payment, and simultaneously due and owing, a late charge equal to
four (4(cent)) cents for each dollar of each payment so in arrears, and if not
paid within thirty (30) days after due, interest shall accrue and be payable at
a rate equal to five (5%) percent above the prime rate then charged by Chase
Manhattan Bank as it is changed from time to time. The parties hereby agree that
inasmuch as the exact amount of the costs to be incurred by Sublessor in the
event of late payment by Sublessee of any of the sums due hereunder are
difficult to ascertain, such late charge represents a fair and reasonable
estimate of the costs Sublessor will incur by reason of late payment by
Sublessee.
4. USE OF SUBLEASED PREMISES. Sublessee shall use the
Subleased Premises in furtherance of any research, development, creation,
manufacture and/or distribution related to drug delivery systems and/or drug
development activities, or such other uses as may be authorized by agreement of
the parties hereto and the Prime Landlord (the "Permitted Uses"). Sublessee
shall, at Sublessee's sole cost and expense, comply with all applicable federal,
state and local laws, including, without limitation, all applicable
environmental laws, ordinances or other regulations and shall obtain, and
maintain and comply with during the Term all necessary permits or licenses
applicable to Sublessee's Permitted Uses of the Subleased Premises. Sublessee
will make no installations, alterations, additions or improvements (other than
artwork, furniture or trade fixtures mounted or installed in the ordinary course
of business) to the Subleased Premises, except with the prior written consent of
the Prime Landlord and the prior written consent of the Sublessor (such consent
not to be unreasonably withheld) and otherwise in compliance with the provisions
of the Prime Lease. Sublessee shall maintain the Subleased Premises in a clean
and safe manner and in as good repair as the same are turned over to it,
ordinary wear and tear and damage by the elements excepted.
5. INSURANCE.
(a) As required by Section 8 below, the Sublessee, at its
sole cost and expense, shall maintain, in addition to any insurance provided by
Prime Landlord under the Prime Lease, the insurance required of Tenant pursuant
to Paragraph 6 of the Prime Lease, including, without limitation, broad form
contractual liability coverage, in compliance with the provisions thereof.
(b) In addition, Sublessee, at its sole cost and expense,
shall maintain property damage insurance for all risks covering all fixtures and
leasehold improvements in or about the
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Subleased Premises with companies reasonably acceptable to Sublessor licensed to
do business in the State of New Jersey, and which hold a "General Policyholders
Rating" of at least A Minus as set forth in the most current issue of "Best's
Insurance Guide."
(c) Each such policy of insurance shall name each of Prime
Lessor and Sublessor as additional insureds, as their interests may appear.
Sublessee shall deliver to Sublessor certificates evidencing the existence,
amounts and endorsements of the insurance described in subsections (a) and (b)
above not later than the date of execution of this Sublease. No such policy
shall be cancelable or subject to reduction of coverage or other modification
except after thirty (30) days' prior written notice to Sublessor. Sublessee
shall, at least (30) days prior to the expiration of any such policy, furnish
Sublessor with a renewal or "binder" thereto, in the absence of which Sublessor
may order such insurance and charge the cost thereof to Sublessee, which amount
shall be deemed additional rent hereunder and shall be payable by Sublessee upon
demand.
6. DEFAULT.
(a) The following events shall be considered events of
default by Sublessee hereunder:
(1) Sublessee shall fail to pay any installment of
rent hereby reserved and such failure shall continue for a period of 5 days
after written notice of default is given by Sublessor to Sublessee.
(2) Sublessee shall fail to comply with any term,
provision or covenant of this Sublease of the Prime Lease, other than the
payment of rent, and shall not cure such failure within 20 days after written
notice thereof to Sublessee.
(3) Sublessee shall become insolvent, or shall make
a transfer in fraud of creditors or shall make an assignment for the benefit of
creditors or shall be adjudged a bankrupt or insolvent in proceedings filed
against Sublessee or shall file a voluntary petition in bankruptcy.
(4) A receiver or trustee shall be appointed for all
or substantially all of Sublessee's assets.
(5) Sublessee shall desert or vacate any substantial
portion of the Subleased Premises, or cease to operate for more than 20 days
without the express written permission of Sublessor.
(b) Upon the occurrence of any of such events of default,
Sublessor shall have the option to pursue any one or more of the following
remedies without notice or demand whatsoever:
(1) Terminate this Sublease, in which event
Sublessee shall immediately surrender the Subleased Premises to Sublessor, and,
if Sublessee fails so to do, Sublessor may, without prejudice to any other
remedy that it may have for possession or arrearages in rent or rent for the
remainder of the Term, enter upon and take possession of the
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Subleased Premises and expel or remove Sublessee and any other person who may be
occupying said Subleased Premises or any part thereof, by force if necessary,
without being liable for prosecution or any claim of damages therefor; and
Sublessee agrees to pay to Sublessor on demand the amount of all loss and damage
that Sublessor may suffer by reason of such termination, whether through
inability to relet the Subleased Premises on satisfactory terms or otherwise.
(2) Enter upon and take possession of the Subleased
Premises and expel or remove Sublessee and any other person who may be occupying
said Subleased Premises or any part thereof, by force if necessary, without
being liable for prosecution or any claim for damages thereof, and relet the
Subleased Premises and receive the rent therefor; and Sublessee agrees to pay to
Sublessor on demand any deficiency that may arise by reason of such reletting.
(3) Enter upon the Subleased Premises, by force if
necessary, without being liable for prosecution or any claim for damages
therefor, and do whatever Sublessee is obligated to do under the terms of this
Sublease, and Sublessee agrees to reimburse Sublessor on demand for any expenses
which Sublessor may incur in thus effecting compliance with Sublessee's
obligations under this Sublease, and Sublessee further agrees that Sublessor
shall not be liable for any damages resulting to the Sublessee from such action,
whether caused by the negligence of Sublessor or otherwise.
(c) Pursuit of any of the foregoing remedies shall not
preclude pursuit of any of the other remedies provided for herein or any other
remedies provided by law, all of which may be enforced cumulatively, nor shall
pursuit of any remedy provided for herein constitute a forfeiture or waiver of
any rent due to Sublessor hereunder or of any damages accruing to Sublessor by
reason of the violation of any of the terms, provisions and covenants herein
contained. Failure by Sublessor to enforce one or more of the remedies herein
provided upon any event of default shall not be deemed or construed to
constitute a waiver of such default, or of any other violation or breach of any
of the terms, provisions and covenants herein contained.
(d) The parties expressly intend by the foregoing to create
a reversionary interest in Sublessor to the end that this instrument be in all
respects construed as a true sublease, and the parties hereto waive the
provisions or operation of any law or legal doctrine to the extent inconsistent
herewith.
(e) Except as otherwise provided herein, with respect to any
breach of this Agreement by Sublessee described in subsection 6(a) above, if
Sublessor reasonably believes, after a reasonable time period, that Sublessee
will not cure such breach within the period provided therefor, Sublessor shall
have the right to cure such breach within such period, and Sublessee shall
reimburse Sublessor for all of Sublessor's reasonable costs incurred in
connection with such cure.
7. INDEMNIFICATION.
(a) SUBLESSEE'S INDEMNIFICATION OBLIGATIONS. Sublessee shall
indemnify, hold harmless and defend, at Sublessee's expense, Sublessor and Prime
Landlord, their respective shareholders, directors, officers, employees and
agents (collectively, the "Sublessor's
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Indemnitees) from and against any and all actions, claims, demands and expenses
(including without limitation reasonable attorneys' fees and costs) relating,
directly or indirectly, to the use and occupancy of the Subleased Premises by
Sublessee or Sublessee's employees, agents or invitees during the Term, or to
any breach or default in the performance of any obligation on Sublessee's part
to be performed under the terms of the Prime Lease or of this Sublease, or
arising from any negligence of Sublessee, or any of Sublessee's agents, servants
or employees, unless the same were caused by the willful or grossly negligent
acts of the Sublessor's Indemnitee seeking such indemnity.
(b) SUBLESSOR'S INDEMNIFICATION OBLIGATIONS. Sublessor shall
indemnify, hold harmless and defend, at Sublessor's expense, Sublessee, its
shareholders, directors, officers, employees and agents (other than Sublessor or
any affiliate thereof) (collectively, the "Sublessee Indemnitees") from and
against any and all actions, claims, demands and expenses (including without
limitation reasonable attorneys' fees and costs) relating, directly or
indirectly, to the use of the Subleased Premises by Sublessor or Sublessor's
employees, agents or invitees prior to the commencement of the Term, or any
other obligations of Sublessor as tenant under the Prime Lease prior to the
commencement of the Term.
8. COMPLIANCE WITH PRIME LEASE. This Sublease (including
the length of the Term hereof) is subject and subordinate to all terms,
covenants and conditions of the Prime Lease. Except as otherwise specifically
set forth herein, Sublessee shall perform and observe and be bound by all of the
terms, covenants and conditions of the Prime Lease with respect to the Subleased
Premises as if it were the Tenant and Sublessor were the Landlord; PROVIDED,
HOWEVER, that Sublessee shall have no obligation to make any payments of Base
Rent to the Prime Landlord under the Prime Lease. Except as otherwise provided
herein, Sublessee shall have all of the rights, privileges and obligations of
the tenant under the Prime Lease (including, without limitation, rights to
occupy additional space in the Building and to purchase the building where the
Subleased Premises are located from the Prime Landlord). Sublessor and Sublessee
shall be required to promptly provide the other with any and all notices
received by them or any agent thereof from the Prime Landlord or any agent
thereof with respect to the Prime Lease or the use or occupancy of the Subleased
Premises by Sublessee or Sublessor. Sublessor shall not amend or otherwise
modify the Prime Lease without the prior written consent of Sublessee.
9. INSPECTION; COMPLIANCE. Sublessor shall have the right
to enter the Subleased Premises at any time, in the case of an emergency, and
otherwise at reasonable times and upon reasonable prior notice, for the purpose
of inspecting the condition of the Subleased Premises and for verifying
compliance by Sublessee with this Sublease and all applicable laws, and to
employ experts and/or consultants in connection therewith and/or to advise
Sublessor with respect to Sublessee's activities, including, but not limited to,
the installation, operation, use, monitoring, maintenance, or removal of any
hazardous substance or storage tank on or from the Subleased Premises. The costs
and expenses of any such inspections shall be paid by Sublessor, unless (i) a
default or breach of this Sublease, a material violation of Applicable Law, or a
material contamination of the Subleased Premises, was caused or was contributed
to in substantial and material part by Sublessee is found to exist or be
imminent, or (ii) the foregoing inspection is requested or ordered by a
governmental authority as the result of any such existing or imminent violation
or contamination. In the case of any event described in clauses (i) and (ii)
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in this Section 9, Sublessee shall, upon request, reimburse Sublessor for the
reasonable costs and expenses of such inspections.
10. TERMINATION. Any permitted termination of the Prime
Lease by its terms by Prime Lessor shall automatically terminate this Sublease
effective as of the Prime Lease termination.
11. SECURITY MEASURES. Sublessee hereby acknowledges that
the rent paid hereunder does not include the cost of guard service or other
security measures, and that Sublessor shall have no obligation whatsoever to
provide same.
12. HOLDOVER TENANCY. Sublessee has no right to retain
possession of the Subleased Premises or any part thereof beyond the expiration
or earlier termination of this Sublease.
13. SUBORDINATION OF SUBLEASE. This Sublease is and shall at
all times be subject and subordinate to the Lease.
14. CONSENT OF PRIME LESSOR. This Sublease is expressly
contingent upon the written consent hereto, as evidenced below, of Prime Lessor,
as required by the Prime Lease. In the event such consent is not obtained, this
Sublease shall be null and void, and thereafter neither party hereto shall bear
any obligation hereunder to the other.
15. NOTICES. All notices, demands, consents, approvals,
requests and instruments or documents by this Sublease required or permitted to
be given to or served upon the Sublessor or the Sublessee shall be in writing.
Any such notice, demand, consent, approval, request, instrument or document
shall be delivered by hand, or sent by overnight courier or express delivery
service or by certified mail, return receipt requested, addressed at the address
set forth below, or at such other address as either party shall designate by
notice, as follows:
If to Sublessor:
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, New Jersey 07417-1880
Attention: Director, Corporate Facilities Engineering
with a copy to:
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, New Jersey 07417-1880
Attention: General Counsel
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If to Sublessee:
Drug Delivery Technologies, Inc.
535 Madison Avenue
New York, New York 10022
Attention: Donald F. Farley
with a copy to:
Kirkpatrick & Lockhart LLP
1251 Avenue of the Americas
New York, New York 10020-1104
Attention: Stephen R. Connoni, Esq.
Any notice so served shall be deemed served upon receipt if delivered by hand,
and otherwise shall be deemed served two (2) business days following posting
thereof or delivery thereof to the overnight courier or express delivery service
16. GENERAL.
(a) ASSIGNMENT. This Sublease shall bind and inure to the
benefit of the parties hereto and to their respective heirs, personal
representatives and assigns. Sublessee shall not assign its interest in this
Sublease, nor shall it subsublease any portion of the Subleased Premises,
without the prior written consent of the Prime Landlord and Sublessor, such
consent not to be unreasonably withheld, conditioned or delayed.
(b) ENTIRE AGREEMENT; SEVERABILITY. This Sublease contains
the entire agreement between the parties with respect to the subject matter
hereof and shall not be modified in any manner except by an instrument in
writing executed by the Sublessor and the Sublessee. The invalidity of any
portion hereof shall not affect the force and effect of the remaining valid
provisions of this Sublease.
(c) PERMITTED ACTS. Any act by Prime Lessor permitted
pursuant to the Lease shall be deemed a permitted act by Sublessor pursuant to
this Sublease, and Sublessee shall respond to same as if Sublessor were the
acting party.
(d) HEADINGS. The headings and subheadings hereof are
inserted for convenience of reference only and shall not affect the
interpretation of this Sublease.
(e) GOVERNING LAW. This Sublease shall be construed and the
legal relations hereunder of the parties bound hereby will be determined,
according to the internal laws of the State of New Jersey without regard to
choice of law principles thereof.
(f) COUNTERPARTS. This Sublease may be executed in several
counterparts, each - of which will be deemed to be an original.
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IN WITNESS WHEREOF, the parties hereto have set their hands as of the
day and year first above written.
SUBLESSOR:
BECTON, DICKINSON AND COMPANY
By: /s/ James J. Bialek
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Title : ATTORNEY-IN-FACT
SUBLESSEE:
DRUG DELIVERY TECHNOLOGIES, INC.
By: /s/ Donald F. Farley
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Title: Chairman
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EXHIBIT A
PRIME LEASE
SEE ATTACHED
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THIS LEASE AGREEMENT, made and entered into this 23rd day of June, 1987,
by and between LINCOLN FAIR LAWN ASSOCIATES, a general partnership of the State
of New Jersey, with offices located at 235 Moore Street, Hackensack, New Jersey
07601, as Landlord, and BECTON DICKINSON AND COMPANY, a New Jersey corporation,
with offices located at One Becton Drive, Franklin Lakes, New Jersey 07417-1880,
as Tenant;
W I T N E S S E T H:
FOR VALUE RECEIVED, it is hereby agreed that:
1. The Landlord by these presents does hereby lease and rent to the
Tenant, and said Tenant hereby agrees to lease and take upon the terms and
conditions set forth herein approximately 27,000 square feet in a building
located at 13-01 Pollitt Drive, Fair Lawn, New Jersey (said space being shown on
the plan attached hereto and marked Exhibit "A") together with non-exclusive
rights to use the 30 spaces in the parking lot adjacent to the building.
2. The term of this lease shall be for 60 months commencing the
date on which Landlord delivers to Tenant possession of that portion of the
building presently occupied by Anderson Jacobson, Inc., as provided in Article
19 hereof. The parties shall execute an addendum to this lease acknowledging the
date of commencement of its term (the "Commencement Date").
3. Beginning with six months after the Commencement Date, as
defined in Article 2, Tenant agrees to pay Landlord a fixed minimum rental
payable in equal monthly installments of $22,368.08 on the first day of each and
every month in advance This rent shall apply notwithstanding the actual square
foot area of the demised premises as measured by either party. During the period
of the first six months after the Commencement Date, there shall be no fixed
minimum rental due and payable. In the event the Commencement Date is other than
the first day of a month, rental, for said partial months, when due, shall be
prorated. In the event that installments of rent or any other payments of money
which may be due under this lease are not received by Landlord within ten (10)
days after the applicable due date, there shall be added to such payment, and
simultaneously due and owing, a late charge equal to four (4(cent)) cents for
each dollar of each payment so in arrears, and if not paid within thirty (30)
days after due, interest shall accrue and be payable at a rate equal to five
(5%) percent above the prime rate then charged by Chase Manhattan Bank as it is
changed from time to time.
Said rental payments together with all other payments required hereunder
shall be payable to Landlord at:
235 Moore Street
Hackensack, New Jersey 07601
until further notice from Landlord.
4. In addition to the fixed minimum rental set forth in Paragraph 3
above, Tenant agrees to pay periodically within ten days of written demand by
Landlord the following, beginning with the Commencement Date:
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a. Tenant's pro rata share, 70.32%, of all taxes levied
against the entire building and land of which the demised premises are a part.
The term "taxes" shall mean and include all taxes, assessments
and other governmental charges, general and special, ordinary and
extraordinary, of any kind and nature whatsoever, applicable to the
premises, including but not limited to assessments for public
improvements or benefits which shall, during the term hereof, be laid,
assessed, levied, imposed upon, or become due and payable and a lien
upon the premises or any part thereof, but excluding franchise, estate,
inheritance, succession, capital, levy, transfer, income or excess
profits tax imposed upon Landlord; provided, if, at the time during the
term of this lease, under the laws of the State of New Jersey or any
political subdivision thereof in which the premises are or may be
situated, a tax or excise on rents or other tax, however described, is
levied or assessed by the State of New Jersey or such political
subdivision against Landlord on account of the rent expressly reserved
hereunder, as a substitute in whole or in part for taxes assessed or
imposed by the State of New Jersey or such political subdivision on land
and buildings, or on land or buildings, such tax or excise on rents or
other tax shall be included within the definition "taxes," but only to
the extent of the amount thereof which is lawfully assessed or imposed
upon Landlord and which was so assessed or imposed as a direct result of
Landlord's ownership of this lease, or of the rent accruing under this
lease.
b. Tenant's pro rata share, 70.32%, of the cost incurred by
Landlord in maintaining the insurance required by Paragraph 5 hereof.
Tenant shall also be responsible for the cost of any and all
utilities, including electric, water, sewer, gas and/or oil consumed at
the leased premises, all of which shall be separately metered.
5. Landlord shall, at its sole cost and expense, keep all buildings
and improvements located on the demised premises insured with a broad-form fire
insurance policy, extended coverage, in an amount equal to the full insurable
value thereof. Landlord shall periodically increase the insurance coverage to
reflect increases in full insurable value.
(a) If the demised premises shall be partially damaged by
fire or other cause without the fault or neglect of Tenant, Tenant's
servants, employees, agents, visitors, or licensees, the damage shall be
repaired by and at the expense of Landlord and the fixed minimum rent
until such repairs shall be made shall be apportioned according to the
part of the demised premises which is usable by Tenant. But if such
partial damage is due to the fault or neglect of Tenant, Tenant's
servants, employees, agents, visitors or licensees, without prejudice to
any other rights and remedies of Landlord and, without prejudice to the
rights of subrogation of Landlord's insurer, the damage shall be
repaired by Landlord but there shall be no apportionment or abatement of
rent. No penalty shall accrue for any delay which may arise by reason of
adjustment of insurance on the part of Landlord and for any delay on
account of "labor troubles" or any other cause, similar or dissimilar,
beyond Landlord's control. Tenant shall give immediate notice to
Landlord in case of fire in the demised premises. If the demised
premises are totally or substantially damaged or are rendered wholly or
substantially untenantable by fire or other cause, and if Landlord
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shall decide not to restore or not to rebuild the same, or if the
building shall be substantially damaged so that Landlord shall decide to
demolish it or to rebuild it or to remodel it (whether or not the
demised premises have been damaged), then or in any of such events,
Landlord may, within 90 days after such fire or other cause, give Tenant
a notice in writing of such decision, and thereupon the term of this
lease shall expire by lapse of time upon the third day after such notice
is given, and Tenant shall vacate the demised premises and surrender the
same to Landlord. If Tenant shall not be in default under this lease,
then, upon the termination of this lease, under the conditions provided
for in the sentence immediately preceding, Tenant's liability for rent
shall cease as of the day following the casualty.
(b) No damage, compensation or claims shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from
any repair or restoration of any portion of the demised premises or of
the building except for rent abatement as provided in (a) above.
6. The Tenant, at its sole cost, shall maintain, in addition to the
insurance provided by Landlord under Paragraph 5 above:
(a) General public liability insurance against claims for
injury or death or property damage occurring upon, in or about the
demised premises or the adjoining streets or passageways in such limits
as Landlord may reasonably re-quire for personal injury to any one
person and to any number of persons arising out of one accident and for
property damage. General public liability insurance limits of
$1,000,000/$2,000,000 and property damage insurance limits of $250,000
are deemed reasonable as of the date hereof.
(b) The Tenant will be responsible for all damage to plate
and window glass in the demised premises.
(c) All insurance shall be effected under policies issued by
insurers of recognized responsibility authorized to do business in the
State of New Jersey and shall name Landlord and Tenant and any
institutional mortgagee, as their interest may appear, as the insured.
Upon the execution of this lease Tenant shall deliver to Landlord a
binder evidencing the required coverage and shall deliver an original
policy or certificate of insurance within 15 days of execution and
thereafter not less than 10 days prior to the expiration dates of
expiring policies, originals of the policies or certificates evidencing
the same shall be delivered by Tenant to Landlord except that whenever
the demised premises shall be mortgaged by the Landlord, such policies
of insurance shall be lodged with the holder of the mortgage lien and
certified copies shall be delivered to the Landlord. Each such policy
shall, to the extent obtainable, contain a provision that such policy
shall not be canceled or modified without at least 10 days prior written
notice to the Landlord and to any mortgagee named therein.
(d) Landlord and Tenant each hereby waive any and all rights
of recovery against the other for loss of or damage to such waiving
party or its property or the
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property of others under its control where such loss or damage is
insured against under any insurance policy in force at the time of such
loss or damage.
(e) Upon the default of the Tenant in effecting any such
insurance or procuring or delivering the policies therefor as directed
by the Landlord, or in paying the premiums therefor and any and all
charges incidental thereto when the same become payable, or in procuring
and delivering to the Landlord renewals of expired policies as provided
above, the Landlord may procure any such insurance and/or pay the
premiums and other charges incidental thereto, and any and all amounts
so paid by Landlord shall be additional rent hereunder to be added to
the next installment of rent thereafter to become due and the Land-lord
shall have all rights and remedies including summary proceedings, with
respect to the same as with respect to rent.
7. Throughout the term of this lease, Landlord shall be responsible
for all structural and roof repairs and shall maintain the exterior of the
premises including landscaped and parking areas and driveways in good condition
and repair. With regard to repairs and replacements to the exterior of the
premises, including landscaped and parking areas and driveways, but excluding
structural and roof repairs, Tenant shall reimburse Landlord, within ten days
after written demand, for 70.32% of the reasonable cost of all such repairs and
replacements.
Tenant agrees, throughout the term of this lease, to take good
care of the demised premises and fixtures and the appurtenances therein and
shall make, at its own expense, repairs and replacements required to keep the
demised premises and fixtures in good working order and condition. Tenant shall
maintain, at its own expense, all light bulbs, fluorescent tubes and lighting
fixtures in the demised premises, including all component parts such as
starters, ballasts, and lenses or grills. All repairs made by Tenant shall be at
least equal in quality to the original work. Tenant shall not make any
installations, alterations, additions or improvements in or to the demised
premises without first obtaining Landlord's written consent thereto, and shall
make the same and all repairs only between such hours and by such contractors or
mechanics as may be approved in writing by Landlord. All alterations,
decorations, installations, additions or improvements upon the demised premises
made by either party (including but not limited to paneling, partitions,
railings and the like), except Tenant's movable trade fixtures and furniture,
shall, unless Landlord elects otherwise (by notice in writing to Tenant given
not less than 20 days prior to the expiration or other termination of this lease
or of any renewal or extension thereof) become the property of Landlord and
shall remain upon, and be surrendered with, said premises, as a part thereof, at
the end of said term or renewal term, as the case may be.
8. In the event the entire premises shall be appropriated or taken
under the power of eminent domain by any public or quasi-public authority, this
Agreement shall terminate and expire as of the date of such taking and Tenant
shall thereupon be released from any further liability hereunder.
In the event that either a portion of the premises or the
building of which the premises are a part is condemned or taken by eminent
domain proceedings so as to render the premises substantially unusable, then in
such event Tenant shall have the right to cancel and terminate this Agreement as
of the date of such taking upon giving to Landlord notice in writing of such
election within 30 days after the receipt by Tenant from Landlord of written
notice of
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such appropriation or taking. Landlord agrees that it will give written notice
to Tenant immediately upon appropriation or taking hereunder. Any taking or
appropriation by eminent domain proceedings shall be deemed to render the
premises substantially unusable hereunder if such appropriation or taking
results in Tenant's inability to use the premises in the manner in which and for
the purposes for which it has been used or can be used under this Agreement. In
the event of such cancellation, Tenant shall thereupon be released from any
further liability under this Lease Agreement.
If this Lease Agreement is terminated in either manner
hereinabove provided, the fixed monthly advance rental for the last month of
Tenant's occupancy shall be prorated and Landlord agrees to refund to Tenant any
such fixed rental paid in advance. Unless local law shall permit the payment of
a damage award to be made directly to tenant for loss of its interest, then the
entire damage award of the condemnation proceedings shall be paid to Landlord
but Landlord shall, and hereby does, assign to Tenant out of any award paid to
Landlord the greater of the following two amounts:
(a) Such portion thereof, if any, as shall be determined in
such condemnation proceedings to be the value of Tenant's interest and
business, or
(b) If Tenant shall have made improvements or alterations in
the premises after the date hereof and shall have not yet fully
amortized its expenditures for such improvements or alterations, a sum
equal to the unamortized portion of any such expenditures.
9. Subject to Paragraph 19 hereof, the taking of possession of the
demised premises shall be conclusive evidence, as against Tenant, that Tenant
accepts the same in "as is" condition and that said 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.
10. The Landlord covenants that the Tenant, upon payment of the rent
and additional rent above reserved, upon the due performance of the covenants
and agreements herein contained, shall and may at all times during the term
hereby granted peaceably and quietly have, hold and enjoy the demised premises
for the term of this lease. This covenant shall not be personal but shall run
with the land and be binding upon any transferee, successor or assign of the
Landlord.
11. The following events shall be considered events of default by
Tenant hereunder:
(a) Tenant shall fail to pay any installment of rent hereby
reserved and such failure shall continue for a period of 5 days after
written notice of default is given by Landlord to Tenant.
(b) Tenant shall fail to comply with any term, provision or
covenant of this lease, other than the payment of rent, and shall not
cure such failure within 30 days after written notice thereof to Tenant.
(c) Tenant shall become insolvent, or shall make a transfer
in fraud of creditors or shall make an assignment for the benefit of
creditors or shall be adjudged a
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bankrupt or insolvent in proceedings filed against Tenant or shall file
a voluntary petition in bankruptcy.
(d) A receiver or trustee shall be appointed for all or
substantially all of Tenant's assets.
(e) Tenant shall desert or vacate any substantial portion of
the leased premises, or cease to operate for more than 30 days without
the express written permission of Landlord.
Upon the occurrence of any of such events of default, Landlord
shall have the option to pursue any one or more of the following remedies
without notice or demand whatsoever:
(a) Terminate this lease, in which event Tenant shall
immediately surrender the premises to Landlord, and if Tenant fails so
to do, Landlord may, without prejudice to any other remedy which it may
have for possession or arrearages in rent or rent for the remainder of
the lease term, enter upon and take possession of the leased premises
and expel or remove Tenant and any other person who may be occupying
said premises or any part thereof, by force if necessary, without being
liable for prosecution or any claim of damages therefor; and Tenant
agrees to pay to Landlord on demand the amount of all loss and damage
which Landlord may suffer by reason of such termination, whether through
inability to relet the leased premises on satisfactory terms or
otherwise.
(b) Enter upon and take possession of the leased premises
and expel or remove Tenant and any other person who may be occupying
said premises or any part thereof, by force if necessary, without being
liable for prosecution or any claim for damages therefor, and relet the
premises and receive the rent therefor; and Tenant agrees to pay to
Landlord on demand any deficiency that may arise by reason of such
reletting.
(c) Enter upon the leased premises by force if necessary,
without being liable for prosecution or any claim for damages therefor,
and do whatever Tenant is obligated to do under the terms of this lease,
and Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in thus 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 whether caused by the negligence of Landlord or otherwise.
Pursuit of any of the foregoing remedies shall not preclude
pursuit of any of the other remedies provided for herein or any other remedies
provided by law, all of which may be enforced cumulatively, nor shall pursuit of
any remedy provided for herein constitute a forfeiture or waiver of any rent due
to Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained.
Failure by Landlord to enforce one or more of the remedies herein provided upon
any event of default shall not be deemed or construed to constitute a waiver of
such default, or of any other violation or breach of any of the terms,
provisions and covenants herein contained.
-15-
12. The Tenant may not assign this lease or let or underlet the
whole or any part of said premises without obtaining in advance the written
consent of Landlord, which shall not be unreasonably withheld; provided,
however, that any portion of the demised premises may be occupied by an
affiliate or subsidiary of the Tenant without requiring procurement of the
Landlord's consent hereunder, so long as Tenant remains liable for the
performance of all of its obligations hereunder.
13. Tenant represents that it has dealt with no broker other than
Alexander Summer and Company incident to the negotiations and execution of this
lease.
14. The Tenant may make alterations, additions or improvements to
the leased premises without the consent of Landlord only if such alterations,
additions or improvements do not require structural changes in the leased
premises, or do not lessen the value of the leased premises. In the event any
alterations, additions or improvements to be made require structural changes,
the same shall only be made upon the Tenant obtaining the prior written consent
of the Landlord, which consent the Landlord shall not unreasonably withhold,
provided the same do not lessen the value of the leased premises or does not
change the basic design and/or utility of the building. Landlord agrees, if
consent is requested by Tenant, to advise Tenant of its decision within 15 days.
Failure of the Landlord to give such written advice within 15 days shall be
deemed consent by the Landlord to the proposed alterations, additions or
improvements. All such alterations, additions or improvements shall be only in
conformity with applicable governmental and insurance company requirements and
regulations applicable to the leased premises. Tenant shall hold and save
Landlord harmless and indemnify Landlord against any claim for damages or injury
in connection with any of the foregoing work which Tenant may make as
hereinabove provided.
Nothing herein contained shall be construed as a consent on the
part of the Landlord to subject the estate of the Landlord to liability under
the mechanic's lien law of the State of New Jersey, it being expressly
understood that the Landlord's estate shall not be subject to such liability.
15. It is agreed that the Tenant shall assume all risk of damage to
its property, equipment and fixtures occurring in or about the demised premises,
whatever the cause of such damage or casualty, and that, in any event, the
Landlord shall not be liable for any damage or injury to property or person
caused by or resulting from steam, electricity, gas, water, rain, ice or snow,
or any leak or flow from or into any part of said building, or from any damage
or injury resulting or arising from any other cause or happening whatsoever;
unless said damage or injury is caused as a direct result of the sole gross
negligence of the Landlord, its employees, agents or subcontractors.
16. This lease shall be subject and subordinate at all times to the
lien of any institutional mortgages now or hereafter placed on the land and
building and leased premises without the necessity of any further instrument or
act on the part of Tenant to effectuate such subordination, but Tenant covenants
and agrees to execute and deliver upon demand such further instrument or
instruments evidencing such subordination of the lease to the lien of any such
institutional mortgage as shall be desired by a mortgagee or proposed mortgagee
or by any per-son.
-16-
17. Tenant agrees at any time and from time to time upon not less
than ten (10) business days' prior notice by Landlord or any mortgagee to
execute, acknowledge and deliver to Landlord or such mortgagee, as the case may
be, or any other party specified by Landlord or such mortgagee, a statement in
writing certifying that this lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as modified and stating the modifications) and the dates to which the rent and
other charges have been paid in advance, if any, and stating whether or not to
the best knowledge of the signer of such certificate Tenant or Landlord is in
default in performance of any covenant, agreement or condition contained in this
lease, and, if so, specifying each such default of which the signer may have
knowledge, it being intended that any such statement delivered pursuant to this
paragraph may be relied upon by any prospective purchaser of the fee or any
mortgagee hereof or any assignee of any mortgage.
18. a. Tenant shall, at Tenant's own expense, comply with the
Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 et seq. and the
regulations promulgated thereunder ("ECRA") as the same may relate to Tenant's
occupancy. Tenant shall, at Tenant's own expense, make all submissions to,
provide all information to, and comply with all requirements of, the Bureau of
Industrial Site Evaluation ("the Bureau") of the New Jersey Department of
Environmental Protection ("NJDEP") relating to Tenant's occupancy. Should the
Bureau or any other division of NJDEP determine that a cleanup plan be prepared
and that a cleanup be undertaken because of any spills or discharges of
hazardous substances or wastes at the demised premises which occur prior to or
during the term of this lease as a result of the activities of the Tenant and
its employees, agents or invitees, then Tenant shall, at Tenant's own expense,
prepare and submit the required plans and financial assurances, and carry out
the approved plans. At no expense to Landlord, Tenant shall promptly provide all
information requested by Landlord for preparation of non-applicability
affidavits and, where applicable, shall promptly sign such affidavits when
requested by Landlord. Tenant shall indemnify, defend and save harmless Landlord
from all fines, suits, procedures, claims and actions of any kind arising out of
or in any way connected with any spills or discharges of hazardous substances or
wastes at the demised premises which occur during the term of this lease as a
result of the activities of the Tenant and its employees, agents or invitees;
and from all fines, suits, procedures, claims and actions of any kind arising
out of Tenant's failure to provide all information, make all submissions and
take all actions required by the ECRA Bureau or any other division of NJDEP as a
result of Tenant's occupancy. Tenant's obligations and liabilities under this
paragraph shall continue so-long as Landlord remains responsible for any spills
or discharges of hazardous substances or wastes as a result of Tenant's
activities at the demised premises which occur during the term of this lease.
b. Tenant shall promptly supply to Landlord all reports and
notices made by Tenant pursuant to the Hazardous Substance
Discharge--Reports and Notices Act, N.J.S.A. 13:1K-15 et seq. and the
regulations promulgated thereunder ("Reports and Notices Act").
c. Tenant shall promptly furnish to Landlord true and
complete copies of all documents, submissions and correspondence
provided by Tenant to the Bureau and all documents, re-ports, directives
and correspondence provided by the Bureau to Tenant.
-17-
Tenant shall also promptly furnish to Landlord true and complete copies
of all sampling and test results obtained from samples and tests taken
at and around the premises.
d. As a condition precedent to Tenant's right to sub-lease
the premises or to assign the lease, Tenant shall have received from the
Bureau either (i) a non-qualified approval of Tenant's negative
declaration or (ii) a non-applicability letter, for which Tenant shall
promptly apply pursuant to ECRA. If this condition shall not be
satisfied, then Landlord shall have the right to withhold consent to
sublease or assignment.
e. The provisions of this Article 18 shall also apply to
Tenant's activities which occurred prior to the Commencement Date as
they may affect that portion of the demised premises which Tenant
occupied pursuant to its lease with the Landlord dated May 15, 1981.
19. Anything in this lease to the contrary notwithstanding, Tenant
agrees that Tenant shall look solely to the estate and property of Landlord in
the property in which the leased premises is located, and subject to the prior
rights of any Mortgagee of the property, for the collection of any judgment (or
other judicial process) requiring the payment of money by Landlord in the event
of any default or breach by Landlord with respect to any of the terms, covenants
and conditions of this lease to be observed and/or performed by Landlord, and no
other assets of Landlord shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies.
20. All notices, demands and requests required under this lease
shall be in writing. All such notices, demands and requests shall be sent by
United States certified mail, return receipt requested, postage prepaid, or by
messenger, addressed as hereinafter provided and shall be effective when
received by, or delivery refused by, the addressee:
To Tenant: Becton Dickinson and Company
Consumer Products Division
One Becton Drive
Franklin Lakes, NJ 07417-1880
with copy by regular mail: Becton Dickinson and Company
Critichem Division
One Becton Drive
Franklin Lakes, NJ 07417-1880
additional copy by Becton Dickinson and Company
regular mail to: Consumer Products Division
One Becton Drive
Franklin Lakes, NJ 07417-1880
Attention: Law Department
To Landlord: Lincoln Fair Lawn Associates
235 Moore Street
Hackensack, NJ 07601
-18-
Landlord or Tenant may from time to time change the address for receipt
of notice by giving notice thereof to the other in accordance with the
provisions of this paragraph.
21. On the Commencement Date of this lease, the lease between
Lincoln Fair Lawn Associates, as landlord, and Becton Dickinson, Inc., Consumer
Products Division, as tenant, dated May 15, 1981 for 10,051 square feet in the
same building shall be deemed to have been terminated, automatically; except
that Tenant shall pay to Landlord all money due thereunder to the Commencement
Date.
22. This lease contains the entire agreement between the parties and
shall not be modified in any manner except by an instrument in writing executed
by the parties. If any term or provision of this lease, or the application
thereof, to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term and
provision of this lease shall be valid and be enforced to the fullest extent
permitted by law.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written to this Lease Agreement.
WITNESS: LINCOLN FAIR LAWN ASSOCIATES
By: _________________________
ATTEST: BECTON DICKINSON AND COMPANY
/s/ Raymond P. Ohlmuller By: /s/ Paul Creager
- ------------------------ ----------------
RAYMOND P. OHLMULLER PAUL CREAGER
Assistant Secretary Group President
-19-
FIRST AMENDMENT TO LEASE
AGREEMENT MADE November 19, 1991, by and between LINCOLN FAIR LAWN
ASSOCIATES, a New Jersey general partnership, with its office at 235 Moore
Street, Hackensack, New Jersey 07601 ("Landlord") and BECTON DICKINSON AND
COMPANY, a New Jersey corporation, with its office located at 1 Becton Drive,
Franklin Lakes, New Jersey 07417-1880 ("Tenant");
RECITALS:
1. Landlord and Tenant entered into a certain Lease Agreement dated
June 23, 1987 (the "Lease") for certain premises located in a building at 13-01
Pollitt Drive, Fair Lawn, New Jersey; and
2. Landlord and Tenant intend to extend the term of the Lease and
to amend certain other provisions.
NOW, THEREFORE, in consideration of the mutual promises hereby contained
and other good and valuable consideration, it is mutually agreed as follows:
1. The Recitals as set forth hereinabove are hereby incorporated
into this Agreement and made a part hereof.
2. Paragraph 2 of the Lease is hereby amended to extend the term
for an additional five (5) years, beginning on February 1, 1993 and ending on
January 31, 1998.
3. Paragraph 3 of the Lease is hereby amended to provide that the
fixed minimum rental shall be payable in equal monthly installments of
$18,038.33 on the first day of each and every month in advance, beginning on
February 1, 1993 and for the remaining term of the Lease.
4. Paragraph 18 of the Lease is hereby amended to add the following
subparagraphs:
"f. If Tenant is responsible for spills and/or
discharges on the premises during its occupancy of the premises
pursuant to this lease, Tenant further agrees to make an
appropriate submission to the NJDEP pursuant to ECRA, which
submission may include, but not be limited to, an application
for an administrative consent order ("ACO") in the event that
Landlord shall seek to sell the premises. Further, Tenant agrees
that it shall furnish a surety bond, Letter of Credit or such
other financial security which would guarantee the
implementation of any potential cleanup at the premises, as
required by the NJDEP, and to further diligently prosecute any
required ECRA submissions including execution of any and all
necessary documents. As with all other aspects of any ECRA
application by Tenant respecting Tenant's use and occupancy of
the premises, Tenant shall bear all costs' in connection with
same, and perform all other acts necessary or required by the
NJDEP.
"g. In the event the Tenant shall have failed to
comply in any respect over which it has control with the terms
and conditions of this Section 18, then upon such failure to
comply, and only in the event that NJDEP does not permit the
premises to be occupied by another tenant, it shall be deemed
the Tenant has remained in possession of the premises; and shall
be considered as a holdover tenant. These rights are in addition
to any other rights and remedies the Landlord may have under law
with respect to such holdover tenancy."
5. A new Paragraph 25 is hereby added to the Lease, and it shall
read as follows:
"25. a. Beginning with the first day of the
month next following the execution of this Agreement, Tenant
covenants and agrees to pay Landlord, as additional rent, the
sum of one twelfth (1/12th) of its pro rata share of estimated
annual cost of repairs and replacements to the exterior of the
premises as described in Paragraph 7 of this Lease, taxes and
insurance, in advance, on the first day of each calendar month
of the lease. Landlord intends to give Tenant written notice
once a year of the amount of estimated monthly payments for
repair and replacements, taxes and insurance, and Tenant will
pay these amounts monthly without further notice or billing. In
the event that such annual costs for any calendar year during
the term hereof shall exceed the estimated sum, Tenant shall pay
its pro rata share of any such excess within thirty (30) days
from written notice by Landlord to Tenant. In the event the
total estimated payments for the year exceed Tenant's share of
the actual costs, Landlord shall credit such excess amount
against the next due payments of fixed rent and additional rent.
Within ninety (90) days after the end of each calendar year
Landlord shall furnish Tenant with a statement in reasonable
detail of the actual costs for the preceding calendar year
showing computation of Tenant's pro rata share of the excess.
Said statement shall be rebuttable evidence of the actual amount
of costs of the Property as well as the amount, if any, due from
Tenant. No further evidence shall be required of Landlord by
Tenant prerequisite to the making of any payment to Landlord by
Tenant as contemplated in this paragraph; provided, however, the
Tenant shall be provided with reasonable documentation setting
forth the costs of Landlord for same upon request thereof by
Tenant. Tenant shall have the right to inspect the applicable
accounting records of Landlord at the office of Landlord's
managing agent upon reasonable prior notice. Any payments to be
made hereunder shall be made by Tenant within ten (10) days from
the date of billing from Landlord. Payments for partial year
shall be prorated. However, Landlord will have the right to bill
Tenant for its pro rata share of repairs, replacements, taxes
and insurance when incurred if they exceed the estimated annual
budget for that category, and the budget and monthly estimated
payments shall be adjusted accordingly, if necessary.
b. Tenant shall have the right, at any
reasonable time upon ten (10) days' prior written notice to
Landlord, to have its representative audit and examine
Landlord's books and records at the office of Landlord's
managing agent in New Jersey relating to such costs within one
year after Tenant has received the annual statement of such
actual charges. All these costs shall be audited and
-21-
examined at the same time. If such audit shall disclose a
liability of Landlord to reimburse Tenant for overcharges of ten
(10%) percent or more of the total original charge, Landlord
shall promptly pay to Tenant the reasonable cost of such audit
and the amount of the deficiency plus interest from the date
such excess shall have been refunded to Tenant at the same rate
of interest as provided in Paragraph 2 of Lease. After one year
from the date Tenant has received the annual statement of such
annual charges, Tenant shall be deemed, automatically and
conclusively, to have approved and accepted such charges, unless
Tenant has conducted an audit and has notified Landlord in
writing, within the one-year period, that it contests the
charges and sets forth specific items and the amount which it
contends is incorrect."
6. Paragraph 19 of the Lease is hereby deleted as Tenant now
occupies the Anderson Space.
7. Paragraph 20 of the Lease is hereby amended to delete it in its
entirety.
8. Except as herein amended or modified, all of the terms and
provisions of the Lease shall remain in full force and effect. In the event of
any conflict between the provisions of this Agreement and the original Lease,
the provisions of this Agreement shall govern and prevail.
9. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and sealed on the date first above written.
WITNESS: LINCOLN FAIR LAWN ASSOCIATES
/s/ Mitchell W. Marcus By: /s/ Stanley H. Marcus
- ---------------------- ---------------------
Mitchell W. Marcus Stanley H. Marcus, General Partner
ATTEST: BECTON DICKINSON AND COMPANY
/s/ Raymond P. Ohlmuller By: /s/ D. Cheatham
- ------------------------ ---------------
Raymond P. Ohlmuller D. Cheatham
Vice President and Secretary Vice President and Treasurer
-3-
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE dated June 10, 1996, by and between
LINCOLN FAIR LAWN ASSOCIATES, a New Jersey general partnership with its offices
at 235 Moore Street, Hackensack, New Jersey 07601 (hereinafter referred to as
"Landlord"), and BECTON DICKINSON AND COMPANY, a New Jersey corporation, with an
address at 1 Becton Drive, Franklin Lakes, New Jersey 07417-1880 (hereinafter
referred to as "Tenant");
RECITALS:
1. Landlord and Tenant have executed and delivered a certain Lease
Agreement dated June 23, 1987, as amended by a First Amendment To Lease dated
November 19, 1991 (hereinafter together referred to as the "Lease") for certain
premises located in a building at 13-01 Pollitt Drive, Fair Lawn, New Jersey
(hereinafter referred to as "demised premises").
2. Landlord and Tenant desire to amend the Lease to extend the term
and modify certain other provisions,
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. The Recitals set forth above are hereby incorporated into this
Amendment with the same force and effect as if they had been set forth at length
herein.
2. The Lease is hereby amended to extend the term for an additional
eight (8) years and eight (8) months, beginning on February 1, 1998 and ending
on September 30, 2006 (hereinafter referred to as the "Extended Term").
3. The fixed minimum monthly rental for the period from February 1,
1993 to and including September 30, 1996 will remain $18,038.33, but such rent
for the period from October 1, 1996 to and including September 30, 1997 will be
$17,125.00 and for the period from October 1, 1997 to and including January 31,
1998 will be $18,558.42.
4. The fixed minimum rental to be paid monthly by Tenant in advance
on the first day of each and every month during the entire Extended Term will be
$18,558.42.
5. A new Paragraph 26 is hereby added to the Lease, as follows:
"26. Upon expiration of the term of the Extended Term, Tenant
shall have the right and option to extend the term of the Lease for one
period of five (5) years. The right and option to extend the term of the
Lease shall be subject to and contingent upon each and every of the
conditions set forth hereinafter. Tenant's right and option to extend
the term of the Lease shall be exercisable by Tenant giving written
notice of the exercise of the right and option to Landlord at least nine
(9) months prior to the expiration of the Extended Term. In the event
Tenant fails to give written notice of its intention to exercise its
right and option as
-4-
provided above within the stated time period, Tenant's right and option
to extend the term of the Lease shall (upon the date by which written
notice should have been received by Landlord) be deemed to have been
waived by Tenant and shall be of no further force or effect. In the
event Tenant exercises its right and option in accordance with the
provisions hereof, the term of the Lease shall be extended accordingly,
and all references contained in the Lease to the term shall be construed
to refer to the original term of the Lease, as extended, whether or not
specific reference is made thereto in the Lease. Unless otherwise
expressly provided to the contrary, the option term of the Lease shall
be upon the same terms, conditions and covenants as set forth in the
Lease and this Amendment except that there- shall be no further right or
option to extend the term of the Lease. It is important to Landlord that
it know whether or not the option is exercised by Tenant so that it may
seek a replacement tenant to avoid loss of rent, and, there-fore, the
time within which the option must be exercised is hereby made of the
essence. The right and option to extend the term of the Lease shall be
subject to and contingent upon each and every one of the following
conditions:
(i) The Lease is in full force and effect;
(ii) Tenant shall not be in default under any of the terms,
provisions, covenants and conditions of the Lease; and
(iii) In lieu of the fixed minimum rental set forth in this
Amendment, the fixed minimum rental to be paid by Tenant monthly during
the option period shall be $22,650.67 per month."
6. A new Paragraph 27 is hereby added to the Lease as follows:
"27. A. In the event Landlord intends to lease any space
("Additional Space") in the property in which the demised premises is
located during the term of this Lease as extended pursuant to Paragraph
26 hereof, Landlord shall give written notice of such intention to
Tenant, and during the thirty (30) day period after Tenant's receipt of
the notice, Tenant will have the exclusive right to negotiate with
Landlord to lease the Additional Space on such terms and provisions as
Landlord and Tenant may agree (the "New Lease"); provided, however, that
all non-monetary provisions shall be consistent with this Lease and the
term and option periods shall be co-terminus with this Lease, and the
option to extend the term must be exercised only simultaneously with the
option set forth in Paragraph 26 hereof. Also, the New Lease shall
contain a provision making a default under this lease a simultaneous
default under the New Lease, and, upon execution of the New Lease, this
Lease shall be deemed to have been amended, automatically, to provide
that a default under the New Lease shall be a simultaneous default under
this lease. In the event the New Lease has not been agreed upon and
executed by Tenant and delivered to Landlord within the later of (i)
same thirty (30) day period or (ii) ten (10) days after Tenant has
received a written New Lease which conforms to the agreement between
Landlord and Tenant, then Tenant's right to lease the Additional Space
will terminate,
-5-
automatically. In the event Tenant accepts and executes the New Lease,
Landlord shall execute and return to Tenant a copy of the New Lease
within three (3) days after its receipt thereof.
B. In the event the New Lease is not agreed upon by
Landlord and Tenant, or in the event the New Lease is agreed upon by
Landlord and Tenant- but not executed by Tenant and delivered to
Landlord, as herein provided, then during the period of nine (9) months
after Tenant's right to enter into a New Lease, as provided in Paragraph
27.A. hereof, has terminated, Landlord shall have the right to lease the
Additional Space to any tenant on any terms. However in the event
Landlord does not sign a new lease with a tenant within the said nine
(9) month period, then Tenant's rights and Landlord's obligations, as
set forth in Paragraph 27.A: hereof will be revived and apply again.
C. Time shall be of the essence with regard to all time
periods in this Paragraph 27.
D. The provisions of this Paragraph 27 shall separately
apply to any amount of Additional Space which Landlord intends to lease
during the term hereof as extended hereby."
7. A New Paragraph 28 is hereby added to the Lease as follows:
"28. A. In the event Landlord intends to sell the
property in which the demised premises is located (the "Property")
during the term of this Lease and before Landlord makes any solicitation
or listing of the property for sale, Landlord shall submit to Tenant a
proposal (the "Proposal") setting forth the sales price. Tenant shall
have twenty (20) business days (excluding Saturday, Sunday and legal
holidays) days from its receipt of the Proposal to accept the Proposal
by signing it and returning it to the Landlord, which shall be received
by the Landlord within the same ten-day period. Within five (5) days
thereafter, Landlord will submit to Tenant an Agreement of Sale (the
"Agreement") consistent with the Proposal and providing for the
following and such other terms and conditions as are customary for such
a transaction: (i) a ten (10%) percent refundable deposit on signing to
be held by Landlord's attorney in an interest-bearing trust account with
interest to be paid to the party receiving the deposit, (ii) a
forty-five (45) day contingency period to permit Tenant to make such
engineering and/or environmental inspections to its sole satisfaction,
verify that ISRA has been complied with by Landlord, and review the
status of title to its satisfaction with the right to terminate the
contract within such period and receive its deposit and interest without
any further obligation by Landlord or Tenant, and (iii) Landlord's
agreement to use its best efforts to have other tenant's cooperate with
Tenant so that it can perform its inspections; however, said forty-five
(45) day period will be extended, automatically, for a period of time
equal to such period during which the lack of cooperation of the other
tenants prevented or hindered Tenant from completing its inspections.
Closing will take place thirty (30) days after the end of the forty-five
(45) day period. Tenant will sign the
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Agreement and send it to Landlord, together with the deposit within five
(5) days after Tenant's receipt. Landlord will immediately sign and
return one fully executed copy of the Agreement to Tenant. The failure
of Tenant to accept and execute the Proposal and Agreement in the manner
herein provided shall be deemed, automatically and irrevocably, an
election by Tenant to reject the Proposal and to terminate its right to
purchase the demised premises, subject to Paragraph 28.B. below.
B. In the event the Proposal and Agreement are not accepted
by Tenant as herein provided, Landlord shall have the right to sell the
Property to any other person or entity for any price and terms it
desires during a period of one (1) year after the date the Proposal was
originally submitted. If Landlord has not sold and conveyed title to the
Property within that one year period, then Tenant's right of first
refusal will apply again in the same manner. However, in the event
Landlord intends to sell the Property to another party at any time prior
to two (2) months after the Tenant's right has terminated and the sales
price is more than ten (10%) percent less than the sales price contained
in the Proposal, Landlord shall give Tenant written notice of its
intention to sell to another party and set forth the new terms. Tenant
shall then have the option to purchase in the same manner and on the
same terms and conditions as set forth in the second notice and with the
same procedures as set forth in paragraph A of this Paragraph 28.
C. A foreclosure sale by a mortgagee which holds a mortgage
on the Property or a conveyance of title to the Property by a deed in
lieu of foreclosure will not give Tenant the right to purchase the
Property pursuant. to this Paragraph 28, but such foreclosure or deed in
lieu of foreclosure will not extinguish Tenant's right to Purchase the
Property pursuant to this Paragraph 28 thereafter, provided that this
Lease is in full force and effect and Tenant is not in default of the
terms, provisions, covenants and conditions of this Lease.
D. Time shall be of the essence with regard to all time
periods in this Paragraph 28."
8. Paragraph 16 of the Lease is hereby deleted entirely and the
following is substituted in its place:
"16. This Lease is and shall be subject and subordinated to
the lien of the mortgage now affecting the demised premises, at the date
hereof, and to any mortgage or mortgages hereafter made affecting the
demised premises, and to all renewals, modifications, consolidations,
replacements, or extensions thereof, irrespective of the time of
recording such mortgage, provided that such mortgagees agree in a
written document, in a form attached hereto as Exhibit "A" with regard
to the mortgage about to be executed and delivered to Valley National
Bank and substantially the same substantive provisions with regard to
future mortgages, that Tenant's occupancy and all rights pursuant to
this lease shall not be disturbed nor terminated so long as Tenant is
not in default of its obligations hereunder beyond any cure periods."
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9. Paragraph 6 of the Lease is hereby amended to provide that all
insurance shall not name Landlord and any mortgagee as insureds, but shall
include contractual liability covering insuring Tenant's indemnity obligations
under this Lease.
10. A new Paragraph 29 is hereby added to the Lease as follows:
"29. Without limiting Tenant's obligation to provide, pay
for, and maintain insurance pursuant to Paragraph 6 of this Lease, and
except as is caused by the negligence, acts of omission or commission on
the part of Landlord or any of its agents, contractors, servants,
employees, licensees or invitees, Tenant covenants and agrees that it
will indemnify, defend and hold harmless Landlord against and from all
liabilities, obligations, damages, penalties, claims, costs, charges and
expenses, including without limitation reasonable attorney's fees, which
may be imposed upon or incurred by Landlord by reason of any of the
following occurrences during the term of this Lease as extended pursuant
to Paragraph 26:
(i) Tenant's use or occupancy of the demised premises or any
part thereof;
(ii) Negligence, or acts of omission or commission on the
part of the Tenant or any of its agents, contractors, servants,
employees, licensees or invitees;
(iii) A failure on the part of Tenant to perform or comply
with any of the covenants, agreements, terms or conditions contained in
this Lease on its part to be performed or complied with.
Landlord shall promptly notify Tenant of any such claim asserted
against it and shall promptly send to Tenant copies of all papers or
legal process served upon it in connection with an action or proceeding
brought against Landlord by reason of any such claim."
11. The parties will execute a memorandum, in recordable form,
stating Tenant's rights to lease and/or purchase the property as provided
herein, which memorandum may be recorded at Tenant's expense.
12. Except as otherwise specifically provided herein, all of the
terms and provisions of the Lease shall continue in full force and effect. In
the event of any conflict between the provisions of this Amendment and the
Lease, the provisions of this Amendment shall govern and prevail.
This Amendment shall be binding upon and shall be for the benefit of the
parties hereto and their respective successors and assigns.
Executed on the date first above written.
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WITNESS: LANDLORD:
LINCOLN FAIR LAWN ASSOCIATES
/s/ M. Robert Poley By: /s/ Stanley H. Marcus
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M. Robert Poley Stanley H. Marcus, General Partner
ATTEST: TENANT:
BECTON DICKINSON AND COMPANY
/s/ Dean J. Paranicas By: /s/ Raymond P. Ohlmuller
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Dean J. Paranicas Raymond P. Ohlmuller
Assistant Secretary Vice President and Secretary
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