RIDER ATTACHED TO AND FORMING
PART OF LEASE DATED
,
2008
BY AND BETWEEN GOODRICH EXECUTIVE L.L.C., AS LANDLORD
AND TETRAGENEX PHARMACEUTICALS, INC., AS TENANT
37. This
rider is hereby made part of the lease above described to which it
is attached and in each instance in which the provisions, or any
part thereof, of this rider shall contradict or be inconsistent
with the provisions, or any part thereof, of said lease as
constituted without this rider, the provisions of this rider shall
prevail and govern and the contradicted or inconsistent provisions
of said lease shall be deemed amended accordingly.
38.
LIENS
Tenant
agrees to indemnify and save Landlord harmless from and against any
and all bills for labor performed or equipment, fixtures and
materials furnished to or for Tenant, and from and against any and
all liens, bills or claims therefore or against the demised
premises or the building of which it forms a part, and from and
against all losses, damages, costs, expenses, suits and claims
whatsoever in connection with the work performed by or for Tenant.
The demised premises and the building shall at all times be free of
liens for labor and materials supplied or claimed to have been
supplied to or on behalf of Tenant, and no financing statements or
other security instruments shall be filed against the demised
premises or the building or the contents thereof.
Tenant
shall not directly or indirectly create or permit to be created or
to remain, and shall discharge, any mortgage, lien, security
interest, encumbrance or charge on, pledge of or conditional sale
or other retention agreement with respect to the demised premises
or any part thereof, any equipment, fixtures or materials therein,
Tenant’s interest under this lease, or any fixed rent or
other rent payable under this lease. Supplementing the provisions
of Article “3” hereof, the parties agree that if any
action, suit or proceeding be brought upon any lien of the nature
described in Article “3” hereof, for the enforcement of
foreclosure of the same, Tenant covenants and agrees, at its own
cost and expense, to defend the Landlord herein and to pay any and
all costs and damages, including Landlord’s attorneys’
fees, and satisfy and discharge any judgment entered
therein.
Further
supplementing the provisions of Article “3” hereof,
Tenant agrees to deliver to Landlord, not later than five (5)
business days prior to the date contemplated for the commencement
of any alteration, certificates of general liability, property
damage and public liability insurance in form and content
satisfactory to Landlord together with Worker’s Compensation
Insurance certificate, all with evidence of payment of premium
thereon and providing for at least (10) days’ prior written
notice of cancellation of same to Landlord.
39.
LATE CHARGE
Whenever in
this lease any sum, amount, item or charge, other than reserved
rent, shall become due and payable by Tenant to Landlord, the same
shall be deemed to be additional rent and the Landlord shall have
the same rights and remedies for the nonpayment thereof as the
Landlord would have for the nonpayment of the reserved or minimum
rent herein stipulated and provided for to be paid by the Tenant.
In the event that any payment to be made by Tenant shall become
overdue for a period in excess of ten (10) days, a “late
charge” of One Hundred Dollars ($100.00) may be charged by
Landlord and shall be payable by Tenant on the 1st day of the month
following Landlord’s demand therefor. The phrase
“rent” as used in this lease shall mean the fixed or
minimum rent reserved hereunder together with all other charges due
from Tenant hereunder, which collectively constitute additional
rent.
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40.
DEMAND FOR CERTIFIED CHECKS
In the
event Tenant shall furnish Landlord with four (4) insufficient
funds checks during the period of this lease term, or each
successive option period if applicable, Tenant will then be
required to furnish Landlord with certified checks for all rent,
additional rent, and arrears due and owing throughout the term of
the lease and/or option period. Failure by Tenant to comply with
this provision will constitute a default under the terms
hereof.
41.
HEATING, VENTILATION, AND AIR CONDITIONING
(a) As long
as Tenant is not in default under this lease, the Landlord, at its
own cost and expense, shall, through the central air conditioning,
heating and ventilation system of the building, furnish and
distribute in the demised premises, ventilation and/or conditioned
air (which term includes heating from October 1st through April
30th, as well as air cooling from May 1st to September 30th) on
business days (Monday through Friday, holidays excepted) from 8:30
A.M. to 5:30 P.M. prevailing time, and on Saturdays from 8:30 A.M.
to 2:00 P.M. when in Landlord’s reasonable judgment the same
is required for comfortable occupancy of the demised premises.
Tenant shall keep and cause to be kept closed the doors (when not
in use) and all of the windows in the demised premises whenever the
air conditioning system is in operation, and to lower and close the
blinds when reasonably necessary because of the sun’s
position. Tenant agrees to cooperate fully with Landlord at all
times and to abide by all rules, regulations and requirements which
Landlord reasonably may prescribe for the proper functioning and
protection of the HVAC system.
(b)
Landlord shall have free and unrestricted access to all HVAC
equipment. Landlord reserves the right to interrupt, curtail, stop
or suspend any of the services herein referred when necessary
because of accident, repairs, alterations or improvements, which in
the judgment of Landlord are desirable or necessary, or to comply
with government restrictions in the use of materials or in the use
of the HVAC system or because of strikes or other cause or causes
beyond the reasonable control of the Landlord, whether such other
cause or causes are similar or dissimilar to those hereinabove
mentioned, and no diminution or abatement of rent or other
compensation shall or will be claimed by the Tenant nor shall this
lease or any of the obligations of the Tenant be affected or
reduced by reason of the interruptions, curtailment or suspension
of HVAC services, provided that if resumption is, or becomes,
within Landlord’s reasonable control, Landlord shall use all
diligent and reasonable efforts to cause such
resumption.
If Tenant
shall require any heating, ventilation or air conditioning service
after the standard hours, Tenant shall request such service at
least twenty-four (24) hours prior to the time Tenant desires said
overtime services. Tenant agrees to pay, as additional rent, such
charges for such overtime services as Landlord reasonably may
determine from time to time. Landlord’s charges for providing
such additional service shall be proportionately increased as
increases in electricity or steam rates occur. Landlord shall have
the right to decline to furnish conditioned air on hours and days
other than the regular hours and days if, in the reasonable opinion
of the Landlord, the furnishing of such service would be
impractical or detrimental to the operation of the
building.
42.
TAX ESCALATION
(a) The
term “Real Property” shall mean collectively the land
and the building erected thereon.
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(b) The
term “Taxes” shall mean all the taxes and assessments,
special or otherwise, levied, assessed or imposed by Federal, State
or Local Governments against the Real Property of which the demised
premises form a part. If due to a future change in the method of
taxation, any franchise, income, profit or other tax, or other
payment, shall be levied against Landlord in whole or in part in
substitution for or in lieu of any tax which would otherwise
constitute a Tax, such franchise, income, profit or other tax or
payment shall be deemed to be a Tax for the purposes
hereof.
(c) The
term “Tax Year” shall mean each period of twelve (12)
consecutive months commencing on the first day of the Base Tax Year
(as defined below), and each twelve month period thereafter, or
such other period as may hereafter be duly adopted as the fiscal
year for real estate tax purposes by the City of Englewood Cliffs.
As used herein and in Article 43 hereof, the phrase “term of
the lease” shall mean the original term provided for in this
lease and any renewal or extension thereof, irrespective of the
sooner termination hereof by reason of Tenant’s
default.
(d) The
term “Base Tax Year” shall mean the Calendar Year
2009.
(e) The
term “Base Taxes” shall mean the Taxes payable for the
Base Tax Year.
(f) If
taxes for any Tax Year shall be increased above the Base Taxes,
then the Tenant shall pay to
the Landlord as additional rent 0.68% of such increase. The
amount due hereunder shall be paid by Tenant within ten (10) days
after the Landlord shall submit a statement to Tenant, showing in
reasonable detail, the computation of the amount, if any, due
hereunder to Landlord. Landlord shall have the right, at its sole
discretion, to bill Tenant the amount due hereunder either in one
lump sum or in equal monthly installments. Any such tax increase
for the Tax Year in which this lease shall end shall be
apportioned.
(g) A tax
bill for any relevant Tax Year (including the Base Tax Year) shall
be conclusive evidence of the amount of taxes imposed for such year
unless the assessment for such year be protested and, in such
latter event, all computations and payments hereunder, pending
final determination of the proceeding, shall be based upon such
original tax bill, with retroactive adjustment to be made following
such final determination.
43.
OPERATING COST INCREASE
As used in
this Paragraph: (A) “Operating Costs” shall mean all
reasonable costs and expenses and taxes thereon, if any, paid or
incurred by Owner or on behalf of Owner with respect to the
operation, cleaning, repair, safety, management, security and
maintenance of the demised premises and the Building containing
same, and the parking area and other Common Areas (as defined
below), in a manner consistent with that of buildings of similar
type and quality in the vicinity of the Building, including but not
limited to the following: (a) salaries, wages and bonuses paid to,
and the cost of any hospitalization, medical, surgical, union and
general welfare benefits (including group life insurance, any
pension, retirement or life insurance plan and other benefit or
similar expense relating to, employees of Owner engaged in the
operation, cleaning, repair, safety, management, security or
maintenance of the Building or in providing services to tenants of
the Building; (b) social security, unemployment and other payroll
taxes, the cost of providing disability and workmen’s
compensation coverage imposed by any legal requirements, union
contracts or otherwise with respect to said employees; (c) the cost
of electricity, heating, and air conditioning for the public or
common area portions of the Building; (d) gas, steam, water and
other fuel and utilities; (e) the cost of casualty, rent, liability
and any other insurance on or with respect to the Building, in
limits reasonably determined by Owner in accordance with customary
and usual standards for office buildings; (f) the
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cost of
repairs, maintenance and painting of the public or non-tenant areas
in the Building; (g) repairs of roofs and the like; (h) rental of
signs and equipment; (i) lighting; (j) removal of snow, trash,
rubbish, garbage and other refuse; (k) depreciation of machinery
and equipment used in maintenance, repair and/or replacement; (l)
the cost of personnel to implement such services, to direct parking
or to police the common areas; (m) gardening and landscaping; (n)
legal and professional fees incurred in connection with the
operation of the Building; (o) actual management fees paid to a
third party with respect to the Building, or if no managing agent
is employed by Landlord, a management fee not in excess of the then
prevailing management fees charged for comparable buildings in the
metropolitan area containing the Building; and (p) maintenance,
repair, striping, sweeping, and snow plowing of the parking area,
curbs, and sidewalks. The preceding list is for definitional
purposes only and shall not impose any obligation upon Landlord to
incur such expenses or provide such service, except if stated
elsewhere in this Lease. Common Areas shall include all common
facilities and shall mean all areas, space, equipment, signs and
special services provided by Landlord for the common or joint use
and benefit of the occupants of the building, and their employees,
agents, servants, customers and other invitees, including without
limitation, parking areas, elevators, roofs, stairs, hallways,
curbs and sidewalks.
(B)
Operating Cost Base Year shall be the calendar year
2009.
(C)
Operating Cost Base shall mean the Operating Costs for the
Operating Cost Base Year (whether or not retroactively
determined).
(D)
Tenant’s Proportionate Share shall mean 0.68
percent.
(E) If the
Operating Costs for any calendar year during the term of this Lease
shall increase above the
Operating Costs for the Operating Cost Base Year, then Tenant shall
pay to Landlord as additional rent 0.68% of such increase.
During the first calendar year following the Operating Cost Base
Year, the amount due hereunder shall be paid by Tenant within ten
(10) days after Landlord shall submit a statement to Tenant,
showing in reasonable detail the computation of the amount, if any,
due hereunder to Landlord. Any such Operating Cost increase for the
calendar year in which this Lease shall end shall be apportioned
accordingly.
If the
Operating Costs shall be changed at any time during the remainder
of the term of this lease after the Operating Cost Base Year, so
that the Operating Costs shall then exceed the Operating Cost Base,
Tenant shall pay as additional rent the sum equal to Tenant’s
Proportionate Share of the amount by which the Operating Costs for
the respective calendar year are greater than the Operating Cost
Base, as an estimate of the Operating Cost Expense for the coming
calendar year, in equal monthly installments commencing with the
first monthly installment of fixed rent falling due hereunder on or
after the effective date of such change in the Operating Costs and
continuing thereafter until a new adjustment shall have become
effective in accordance with the provisions of this Paragraph 43.
Following the end of each calendar year, an adjustment shall be
made based on the actual Operating Cost Expenses for said calendar
year, and Tenant shall pay Landlord any difference between the
estimated (billed) and actual figures within ten (10) days after
Landlord shall submit a statement to Tenant. In no event shall
Landlord be obligated to refund any sums to Tenant if the Operating
Cost Expenses are less than the Operating Cost Base.
Every
notice given by Landlord pursuant to this Paragraph 43 shall be
conclusive and binding upon Tenant unless (i) within five (5) days
after the receipt of such notice Tenant shall notify Landlord that
it disputes the correctness of the notice,
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specifying
the particular respects in which the notice is claimed to be
incorrect, and (ii) if such dispute shall not have been settled by
agreement, Tenant shall submit the dispute to arbitration pursuant
to this lease within ten (10) days after receipt of the notice.
Pending the determination of such dispute by agreement or
arbitration as aforesaid, the Tenant shall pay additional rent or
accept credit in accordance with Landlord’s notice and such
payment or acceptance shall be without prejudice to Tenant’s
position. If the dispute shall be determined in Tenant’s
favor, Landlord shall forthwith pay Tenant the amount of
Tenant’s overpayment of rents resulting from compliance with
Landlord’s statement.
44.
ELECTRICITY
(a) As long
as Tenant is not in default in the payment of any rent or the
performance of any covenants of this lease on Tenant’s part
to be performed, Landlord shall furnish to the demised premises
Standard Electrical Service for Tenant’s requirements for
lighting and electrical appliances and equipment within the demised
premises. In addition to the annual rental rate as specified on the
front page of this Lease and additional rent as specified elsewhere
herein, Tenant shall pay for the electricity used in the demised
premises at the rate of $1,570.50 per annum, payable in
equal monthly installments of $130.88 , and the aforesaid
amount shall be deemed further additional rent and shall be paid on
the first day of each and every month. Landlord reserves the right
to have an electrician survey the demised premises (at
Landlord’s sole cost and expense) to determine the actual
electric consumption of Tenant. In the event the survey indicates
that Tenant’s actual electric consumption exceeds the
foregoing amount, Tenant shall pay the increased amount as
additional rent from the date of the survey through the expiration
of the term of this Lease.
Tenant also
agrees to purchase from Landlord or its agent all lamps, starters,
ballasts or bulbs used in the demised premises. Tenant’s use
of electricity in the demised premises shall be for the operation
of lighting, business machines such as personal computers and other
small office machines and lamps, and shall not at any time exceed
the capacity of any of the electrical conductors and equipment in
or otherwise serving the demised premises.
In order to
insure that such capacity is not exceeded and to avert possible
adverse effect upon the building electric service, Tenant shall
not, without Landlord’s prior written consent in each
instance, connect any additional fixtures, appliances or equipment
(other than lamps, personal computers, and similar small office
machines) to the building’s electric distribution system or
make any alteration or addition to the electric system of the
demised premises existing at the commencement of the term of the
lease. Should Landlord grant such consent, all additional risers or
other equipment required therefor shall be installed by Landlord
and the cost thereof shall be paid by the Tenant upon
Landlord’s demand. As a condition to granting such consent,
Landlord may require that the Tenant agree to an increase in the
fixed rent by an amount which will reflect the value to the Tenant
(determined by the current public utility rates for direct purchase
by Tenant) of the additional services to be furnished by the
Landlord.
If the
public utility rate schedule for the supply of electric current to
the building shall be increased or decreased during the term of
this lease, the amount defined in this Paragraph as Tenant’s
cost for electricity shall be equitably adjusted to reflect the
resulting increase or decrease in Landlord’s cost of
furnishing electric service to the demised premises. Landlord
reserves the right to discontinue furnishing electric energy to the
Tenant in the demised premises at any time upon not less than
thirty (30) days’ written notice to the Tenant. If Landlord
exercises such right of termination, this lease shall
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continue
in full force and effect and shall be unaffected thereby except
only that from and after the effective date of such termination
Landlord shall not be obligated to furnish electric energy to the
Tenant and the Tenant’s cost for electricity under this
Paragraph shall be adjusted to reflect the resulting decrease in
Landlord’s cost of furnishing electric service to the demised
premises. If Landlord so discontinues furnishing electric service
to Tenant, Tenant shall arrange to obtain electric energy directly
from the public utility company furnishing electric services to the
building. Such electric energy may be furnished to Tenant by means
of the then existing building system feeders, risers and wiring to
the extent that same are available, suitable and safe for such
purposes. All meters and additional panel boards, feeders, risers,
wiring and other conductors and equipment which may be required to
obtain electric energy directly from such public utility company
shall be installed by the Landlord at Tenant’s
expense.
45.
ASSIGNMENT AND SUBLETTING
(a) Tenant
covenants and agrees that it will not, by operation of law or
otherwise, assign, mortgage or encumber this lease, nor sublet or
permit the demised premises or any part thereof to be used by
others without Owner’s prior written consent in each
instance, which consent shall not be unreasonably withheld. In
determining whether to grant consent to Tenant’s sublet or
assignment request, Landlord may consider any reasonable factor.
Landlord and Tenant agree that any one of the following factors, or
any other reasonable factor, will be reasonable grounds for
deciding Tenant’s request:
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(i)
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financial
strength of the proposed subtenant/assignee must be at least equal
to that of the existing tenant;
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(ii)
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business
reputation of the proposed subtenant/assignee must be in accordance
with generally acceptable commercial standards;
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(iii)
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use of the
premises by the proposed subtenant/assignee must be identical to
the use permitted by this lease;
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(iv)
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managerial and
operational skills of the proposed subtenant/assignee must be the
same as those of the existing tenant;
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(v)
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use of the
premises by the proposed subtenant/assignee will not violate or
create any potential violation of any laws;
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(vi)
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use of the
premises will not violate any other agreements affecting the
premises, the Landlord or other Tenants.
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In no event
may Tenant sublet all or any part of the demised premises, assign
this lease in any manner or otherwise permit the occupancy of all
or any part of the demised premises to any tenant, assignee,
sublessee or other occupants of the building of which the demised
premises forms a part. Any such request by Tenant to sublease all
or any part of the demised premises, assign this lease in any
manner or otherwise permit the occupancy of all or any part of the
demised premises to any party who is a tenant, former tenant,
assignee, sublessee or other occupancy of space in the building of
which the demised premises forms a part shall not be subject to the
terms of this numbered Article “45” hereof. Such party
is hereinafter referred to as a “Prohibited Party”. The
consent by Owner to any assignment or subletting shall not in any
manner be construed to relieve Tenant from obtaining Owner’s
express written consent to any other or further assignment or
subletting.
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(b) Tenant
may without Owner’s prior written consent, assign this lease
to a corporation or other business entity (herein sometimes called
a “successor corporation”) into or with which Tenant
shall be merged, or consolidated, or a wholly owned or controlled
corporation, or a franchisee, provided that the successor
corporation shall use the demised premises only for the purpose
specified in Paragraph 2 of this lease and provided further that
there is delivered to Owner within five (5) business days after the
effective date of such assignment, an instrument duly executed and
acknowledged by the assignee whereby assignee assumes performance
of Tenant’s obligations under this lease, as well as a true
copy of the instrument of merger or consolidation, if the
transaction wherein the assignment is made be one of merger or
consolidation, or proof satisfactory to Owner that such assignment
is to a wholly owned or controlled corporation, if the transaction
wherein the assignment is made be one to a wholly owned or
controlled corporation. If Tenant requests Owner’s consent to
any other assignment of this lease or subletting of all or any
portion of the demised premises, other than to a “Prohibited
Party”, it shall submit in writing to Owner, at the time it
requests such consent:
(i)
the name and address of the proposed assignee or subtenant; (ii)
the terms and conditions of the proposed assignment or subletting;
(iii) the nature and character of the business of the proposed
assignee or subtenant; and (iv) banking, financial and other credit
information relating to the proposed assignee or subtenant,
reasonably sufficient to enable Owner to determine the proposed
assignee’s or subtenant’s financial
responsibility.
(c) Owner
shall have the following options to be exercised by written notice
to Tenant within thirty (30) business days after Tenant’s
aforesaid request for Owner’s consent, which request shall be
deemed sufficient upon which Owner must act only if the four (4)
conditions in subparagraph (b) above have been complied with to
Owner’s reasonable satisfaction:
(i)
If the request be for Owner’s consent to an assignment, Owner
may require Tenant to execute an assignment to Owner, or to anyone
designated by Owner, without payment of any premium therefor,
provided that concurrently with the delivery of such assignment
Owner, for itself and for any successor in interest as Owner, will
execute and deliver an instrument releasing and discharging the
Tenant from all obligations under this lease accruing after the
effective date of such assignment but if said assignment be a pro
tanto assignment, then such release and discharge shall relate to
only so much of the demised premises as is covered by such
assignment;
(ii)
If the request be for Owner’s consent to a sublease, Owner
may require Tenant to execute a sublease to the Owner and/or its
designee for the same term as the proposed sublease and upon the
same terms and conditions as are contained in the proposed sublease
except that the Owner or its designee shall not be required to pay
any monies under said sublease other than reserved rent and
additional rent at the same annual rate payable by Tenant under
this lease, but prorated and apportioned according to the number of
square feet of rentable area contained in the sublet premises, and
except further, that Owner or its designee shall not be required to
pay any premium therefor or perform any work thereunder as
subtenant (for the purpose of readying the sublet premises for
use), and except further, that the sublease shall provide for the
unqualified right on the part of the subtenant to sub-sublet or
assign the sublease to others for any lawful purpose and to alter
the sublet premises in any manner Owner or its designee shall
desire. Concurrently, with the delivery of the sublease to Owner,
Owner, for itself and for any successor in interest as Owner, will
execute and deliver an instrument indemnifying and holding Tenant
harmless from any loss of rent or for other damages which Tenant
might sustain by reason of the default of the sublessee under the
sublease.
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(d) If
Owner shall not exercise any of its aforesaid options within the
time limited therefor, and if the use of the demised premises
remains unchanged and the financial responsibility of the proposed
assignee or subtenant be reasonably acceptable to Owner, its
consent to the proposed assignment or subletting shall not be
withheld, provided, however, that each of the following conditions
is first complied with:
(i)
Tenant shall not then be in default under this lease;
(ii)
If the proposed assignment or subletting be of the entire demised
premises, the assignee or
sublessee as the case may be, shall execute an agreement, in form
reasonably satisfactory to the Owner, whereby such proposed
assignee or sublessee assumes performance of Tenant’s
obligations under this lease and shall become jointly and severally
liable with the Tenant for the performance thereof. If the proposed
subletting be of less than the entire demised premises, sublessee
shall execute and deliver a pro rata assumption of Tenant’s
lease obligations;
(iii)
A duplicate original of the instrument of assignment or sublease,
as the case may be, and of the assumption agreement duly executed
by the appropriate party, shall be delivered to the Owner before
the assignee or sublessee shall be let into possession of the
demised premises or the sublet portion thereof.
(iv)
Tenant shall pay the sum of Five Hundred Dollars ($500.00)
representing attorneys’ fees incurred by Owner in connection
with the review and/or preparation and/or execution of any
documents submitted to Owner relating to the proposed assignment or
subletting.
(e) If
Owner’s written consent to a subletting shall have been
obtained, Tenant shall pay to Owner, as additional rent hereunder
due on the 1st day of each month of the term of the sublease, an
amount equal to 100% of the annual sublet rent in excess of the
annual rent payable hereunder, except that if the sublet be for
less than all of the demised premises, appropriate pro rata
adjustment of the rent payable under this lease shall be made in
determining the excess of sublet rental over the pro rated rental
payable under this lease. “Rent” or
“Rental” as used herein shall mean the aggregate of
reserved or fixed rent and any additional rent payable under the
pertinent sublease, and such aggregate payable under the within
lease.
(f) Each of
the foregoing provisions and conditions shall apply to each and
every further attempted assignment or subletting other than to a
“Prohibited Party”. An assignment of lease or a
subletting as above provided shall not discharge or release from
liability hereunder the Tenant or any other person, firm, or
corporation which shall have previously assumed Tenant’s
obligations hereunder, such liability to remain and continue for
the balance of the term with the same force and effect as though no
assignment had been effected.
(g) The
transfer in the aggregate of fifty percent (50%) or more of (i) the
voting stock of any corporate tenant or (ii) the voting interest in
any partnership tenant shall be deemed an assignment within the
meaning of Article “11” of this lease and of this
numbered Article, and shall require Owner’s prior written
consent, which consent will not be unreasonably withheld upon
compliance with all of the conditions set forth in subdivisions
(a), (b), (c) and (d) hereof. The provisions hereof shall not apply
to the transactions described in the first sentence of (b)
hereof.
(h) The
provisions of this Article shall apply only to an assignment of
this lease by the initial Tenant and to a subletting of all or any
portion of the demised premises by the initial Tenant to other than
a “Prohibited Party” and shall not apply to any other
transaction providing for occupancy of all or any portion of the
demised premises by a (i) third party other than the Tenant’s
assignee or Tenant’s sublessee or (ii) an assignment or
subletting to a “Prohibited Party”. For such other
transactions, the provisions of Article “11” shall
apply.
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46.
BANKRUPTCY AND DEFAULT
(A)
BANKRUPTCY: (a) If Tenant assumes this lease and proposes to assign
the same pursuant to the provisions of the Bankruptcy Code, 11
U.S.C. S 101 et seq. (the “Bankruptcy Code”) to any
person or entity who shall have made a bona fide offer to accept an
assignment of this lease on terms acceptable to Tenant, then notice
of such proposed assignment, setting forth (i) the name and address
of such proposed person, (ii) all of the terms and conditions of
such offer, and (iii) the adequate assurance to be provided
Landlord to assure such person’s future performance under the
lease, including, without limitation, the assurance referred to in
section 365(b)(3) of the Bankruptcy Code, shall be given to
Landlord by Tenant not later than twenty (20) days after receipt by
Tenant but in no event later than ten (10) days prior to the date
that Tenant shall make application to a court of competent
jurisdiction for authority and approval to enter into such
assignment and assumption, and Landlord shall thereupon have the
prior right and option, to be exercised by notice to Tenant given
at any time prior to the effective date of such proposed
assignment, to accept an assignment of this lease upon the same
terms and conditions and for the same consideration, if any, as the
bona fide offer made by such person, less any brokerage commission
which may be payable out of the consideration to be paid by such
person for the assignment of this lease.
Furthermore,
as one element (but not the exclusive element) of the adequate
assurance (as stated in (iii) above) that such a trustee must
provide Landlord for the future performance by any such assignee of
Tenant’s obligations under this lease, there shall be
deposited with Landlord within ten (10) days of demand therefore,
to beheld pursuant to the provisions of Paragraph 30 hereof in
addition to any other prepaid rent or security previously deposited
with Landlord the amount of at least one (1) full year’s
annual reserved rent and any additional rent (at the then current
level of annual reserved rent and additional rent on the effective
date of such assignment) to secure the full and faithful
performance of the obligations of Tenant hereunder. In addition,
adequate assurance shall mean that any such assignee of this lease
shall have a net worth, exclusive of good will, equal to at least
fifteen (15) times the aggregate of the annual reserved rent
reserved hereunder plus all additional rent for the preceding
calendar year.
(b) If this
lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise delivered in connection with
such assignment shall be paid or delive