<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 1O-QSB
|X| Quarterly report under Section 13 or 15(d) of the Securities Exchange Act
of 1934 For the quarterly period ended March 31, 1998
|_| Transaction report under Section 13 or 15 (d) of the Exchange Act For
the transition period from ____________ to ______________
Commission file number 0-22245
NEXMED, INC.
- --------------------------------------------------------------------------------
(Exact Name of Small Business Issuer as Specified in Its Charter)
Nevada 87-0449967
- ------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
350 Corporate Boulevard, Robbinsville, NJ 08691
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices)
(609) 208-9688
- --------------------------------------------------------------------------------
(Issuer's Telephone Number, Including Area Code)
N/A
- --------------------------------------------------------------------------------
(Former Name, Former Address and Former Fiscal Year, if Changed
Since Last Report)
Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15 (d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes |X| No |_|
APPLICABLE ONLY TO CORPORATE ISSUERS
State the number of shares outstanding of each of the issuer's classes of
common equity, as of the latest practicable date: At May 15, 1998, 6,295,098
shares of common stock were outstanding.
Transitional Small Business Disclosure Format (check one):
Yes |_| No |X|
<PAGE>
PART I
FINANCIAL INFORMATION
Item 1. Financial Statements
NexMed, Inc.
Condensed Consolidated Balance Sheets
March 31,
1998
(unaudited)
-----------
Assets
Current assets:
Cash and cash equivalents $ 1,613,518
Accounts receivable 1,109,111
Inventories 672,110
Due from related party 168,827
Prepaid expenses and other assets 153,683
-----------
Total current assets 3,717,249
Furniture and equipment, net 1,566,577
Debt issuance costs, net of accumulated amortization
of $25,764 42,941
Intangibile assets, net of accumualted amortization
of $12,381 241,269
-----------
Total assets $ 5,568,036
===========
Liabilities and stockholders' equity
Current liabilities:
Notes payable $ 2,825,972
Due to related party 1,413,197
Due to officer 50,000
Accounts payable and accrued expenses 1,954,469
-----------
Total current liabilities 6,243,638
-----------
Minority interest 866,480
Commitments and contingencies
Stockholders' equity:
Preferred stock, $.001 par value, 10,000,000
shares authorized, none issued and outstanding --
Common stock, $.001 par value, 40,000,000
shares authorized, 6,470,098 and 6,180,098 issued
and outstanding, respectively 6,470
Additional paid-in capital 7,691,463
Accumulated deficit (9,177,177)
Cumulative translation adjustments (7,955)
-----------
(1,487,199)
Less: deferred compensation (54,883)
-----------
Total stockholders' equity (1,542,082)
===========
Total liabilities and stockholders' equity $ 5,568,036
===========
See notes to unaudited condensed consolidated financial statements
1
<PAGE>
NexMed, Inc.
Condensed Consolidated Statement of Operations (Unaudited)
For the three months
ended March 31,
---------------------------
1998 1997
----------- -----------
Revenue
Product sales $ 1,204,670
License fees -- $ 50,000
----------- -----------
Total revenues 1,204,670 50,000
----------- -----------
Operating expenses
Cost of products sold 1,043,498 --
Selling, general and administrative 712,274 276,653
Research and development 387,656 287,428
----------- -----------
Total operating expenses 2,143,428 564,081
----------- -----------
Loss from operations (938,758) (514,081)
Interest income (expense), net (127,573) 2,523
----------- -----------
Loss before minority interest (1,066,331) (511,558)
Minority interest 70,588 --
----------- -----------
Net loss $ (995,743) $ (511,558)
=========== ===========
Basic and diluted loss per share $ (0.16) $ (0.09)
----------- -----------
Weighted average common shares outstanding
used for basic and diluted loss per share 6,183,320 5,798,298
----------- -----------
See notes to unaudited condensed consolidated financial statements
2
<PAGE>
NexMed, Inc.
Condensed Consolidated Statement of Cash Flows (Unaudited)
For the three months
ended March 31,
---------------------------
1998 1997
----------- -----------
Cash flows from operating activities
Net loss $ (995,743) $ (511,558)
Adjustments to reconcile net loss to
net cash from operating activities
Depreciation and amortization 87,803 5,784
Non-cash compensation expense 40,375 48,313
Increae in accounts receivable (241,742) --
Increase in inventories (111,971) --
Increae (decrease) in prepaid expenses
and other assets (47,402) 18,750
Increase (decrease) in account payable
and accrued expenses 644,618 (72,104)
----------- -----------
Net cash used in operating activities (624,062) (510,815)
----------- -----------
Cash flow from investing activities
Capital expenditures (29,828) (53,066)
Advances to Joint Venture 1,870,000 --
----------- -----------
Net cash used in investing activities 1,840,172 (53,066)
----------- -----------
Cash flow from financing activities
Issuance of common stock, net of
offering costs 347,500 2,096,220
Issuance of notes payable 240,213 100,000
Decrease in due to related party (373,494) --
Increase in due to officer 50,000 --
Repayment of notes payable -- (25,000)
----------- -----------
Net cash from financing activities 264,219 2,171,220
----------- -----------
Net increase in cash 1,480,329 1,607,339
Cash, beginning of period 133,189 194,577
----------- -----------
Cash, end of period $ 1,613,518 $ 1,801,916
=========== ===========
See notes to unaudited condensed consolidated financial statements
3
<PAGE>
NexMed, Inc.
Notes to Unaudited Condensed Consolidated Financial Statements
1. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-QSB and Article 10-01
of Regulation S-B. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for annual
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three months ended March 31, 1998 are
not necessarily indicative of the results that may be expected for the year
ended December 31, 1998. For further information, refer to the financial
statements and notes thereto dated March 2, 1998 included in the NexMed, Inc.
(the "Company") Form 10-KSB.
Effective January 1, 1998, upon the consummation of the joint venture agreement
(see Note 2), the Company is no longer considered a development stage company.
2. Joint Venture Agreement with Zhongshan Xiaolan Pharmaceutical Factory.
In July 1997, the Company, through its wholly-owned subsidiary, NexMed (Asia)
Limited, entered into an agreement to form a Chinese joint-venture company,
NexMed Pharmaceuticals (Zhongshan) Ltd. (the "JV") with Zhongshan Xiaolan
Pharmaceuticals Factory (the "JV Partner"). Under the terms of the agreement,
the Company was required to make an initial contribution of $2,170,000, and is
required to make additional contributions of $700,000 and $630,000 by September
1999 and 2000, respectively, in exchange for a 70% equity interest in the JV.
Effective January 1, 1998, the Company contributed $1,870,000 of the $2,170,000
initial payment and the Company was given an extension of time to complete
payment of the remaining $300,000 by the JV Partner until September 1998. If the
Company is unable to complete the initial payment by September 1998, the Company
and the JV Partner will re-divide the percentage equity in the JV according to
the ratio of actual investments.
3. New Accounting Pronouncements
Effective January 1, 1998, the Company adopted Financial Accounting Standards
No. 130, "Reporting Comprehensive Income" ("FAS 130"), which requires the
presentation of the components of comprehensive income in the company's
financial statement for reporting periods beginning subsequent to December 15,
1997. Comprehensive income is defined as the change in the company's equity
during a financial reporting period from transactions and other circumstances
from non-owner sources (including cumulative translation adjustments, minimum
pension liabilities and unrealized gains/losses on available for sale
securities). Comprehensive income for the three months ended March 31, 1998 and
1997 is as follows:
Three Months ended March 31,
1998 1997
----------- -----------
Net loss $ (995,743) $ (511,558)
Cumulative translation adjustments (7,955) --
----------- -----------
$(1,003,698) $ (511,558)
=========== ===========
Effective January 1, 1998, the Company adopted Financial Accounting Standards
No. 131, "Disclosure about Segments of an Enterprise and Related Information"
("FAS 131"), which requires disclosure of information about operating segments
in annual financial statements for reporting periods beginning subsequent to
December 15, 1997. Operating segments are defined as components of an enterprise
about which separate financial information is available that is evaluated
regularly by the chief operating
4
<PAGE>
decision maker in deciding how to allocate resources and in assessing
performance. The adoption of FAS 131 did not have a material impact on the
Company's financial statements.
4. Issuance of Common Stock
In March 1998, the Company issued 275,000 shares of common stock at $1.25 per
share in a private placement. The Company received net proceeds of $343,750 from
the issuance.
In January 1998, options to acquire 15,000 shares of common stock at $.25 per
share were exercised. The Company received net proceeds of $3,750.
5. Notes Payable
In January and February 1998, the Company issued short-term notes in the
aggregate principal amount of approximately $240,000. The notes bear interest at
rates ranging from 12% to 15% per annum. The notes are payable, together with
accrued but unpaid interest, on various dates through January 1999.
6. Related Party Transactions
In January 1998, the Company was advanced $50,000 from an officer and director
of the Company under an informal agreement. The advance bears interest at 15%
per annum and is due in December 1998.
Due to related party of $1,413,917 at March 31, 1998, represents an unsecured,
uncollateralizied revolving line of credit with the JV Partner. The line of
credit bears interest at 11.1% per annum and expires in September 2000. The
source of the funds is a line of credit extended to the JV Partner by a Chinese
bank.
7. Subsequent Events
In April 1998, the Company issued 48,500 shares of common stock at $1.25 per
share in a private placement. The Company received gross proceeds of $60,625
from the issuance.
In April 1998, the Company and the holders of two notes payable in the aggregate
principal amount of approximately $216,000 rolled over the outstanding principal
and unpaid interest, in the amount of approximately $31,000, into new notes. The
new notes bear interest at rates ranging from 12% to 15% and are payable
together with accrued but unpaid interest on various dates through October 1998.
In May 1998, the Company completed a private offering of 1,360,000 shares of its
common stock at a $1.50 per share.
Item 2. Management's Discussion and Analysis
GENERAL
NexMed, Inc. ("NexMed"), which has been in existence since 1987, has,
since 1994, positioned itself as a medical and pharmaceutical technology company
with a focus on developing and commercializing therapeutic products based on
proprietary delivery systems. NexMed (together with its subsidiaries, the
"Company") is currently focusing its efforts on:
(i) new and patented pharmaceutical products based on a penetration
enhancement topical delivery technology known as NexACT(TM) which may enable the
active drug to be better absorbed through the skin. Currently, the primary
topical treatment product under development by the Company is Alprox-TD(TM), an
alprostadil cream for the treatment of male erectile dysfunction (impotence).
Also under research and development are ibuprofen and ketoprofen cream
formulations for sports medicine and arthritis treatment, an acyclovir
anti-viral cream for the treatment of herpes simplex and an alprostadil-based
product, known as Femprox(TM), for the treatment of female sexual dysfunction.
(ii) the Viratrol(R) device, a proprietary therapeutic medical device for
the treatment of herpes simplex diseases which does not require the use of any
drugs. The Company believes that the electrical current, which is topically
delivered by the patented device to an infected site, blocks lesions from
forming or shortens healing time once lesions develop; and
(iii) the manufacturing and distributing of generic pharmaceutical
products through its Joint-Venture in China (the "JV"). The Company expects to
continue and expand upon the production and distribution in China and export to
other international markets of generic medical and pharmaceutical products
currently approved and sold in China.
In 1998, the Company intends to expand its research, development, and
marketing activities and capabilities, both domestically and internationally;
with regard to its proprietary pharmaceuticals products and to execute a
business strategy with the goal of achieving a level of development and
commercialization sufficient to enable the Company to attract potential
strategic partners with resources sufficient to further develop
5
<PAGE>
and market its proprietary products. For its generic pharmaceutical business,
the Company intends for the JV to develop new products, acquire new production
equipment and retrofit the existing production facilities to meet the newly-
proposed Chinese Good Manufacturing Practices (GMP) standards.
With respect to the regulatory approval of its new products, in the U.S.
the Company intends to initiate in 1998, pending sufficient funding, Phase II
studies for the Alprox-TD(TM) treatment cream for male impotence and Phase I
studies for the Femprox(TM) treatment cream for female sexual dysfunction. In
China, the Chinese Department of Health has approved the Company to initiate a
200 to 300-patient Phase II study, and pending satisfactory results, the Company
intends to submit a New Drug Application in China before the end of 1998. For
the Viratrol(R) device, the Company is conducting a 60-patient, double-blind
study in China, and intending to file an IDE with the FDA and initiate clinical
studies in the U.S.
COMPARISON OF RESULTS OF OPERATIONS BETWEEN FIRST QUARTER OF 1998 AND OF 1997
Revenues. The Company recorded revenues of $1,204,670 and $50,000 during
the first quarter of operations in 1998 and 1997, respectively. The 1998
revenues were generated from the JV's product manufacturing and distribution of
generic pharmaceutical products in China and the 1997 revenues resulted from the
agreement to license the exclusive rights to manufacture and distribute Alprox-
TD(TM) in Taiwan to Lotus Medical Supply, Inc. The Company is pursuing other
licensing and other partnering agreements which if entered into, may result in
additional contract revenues or product sales in 1998. In addition, the Company
anticipates that the increase in the production capacity of the JV should result
in additional sales revenue in 1998.
Research and Development Expenses. Research and development expenses
increased $100,228 to $387,656 in 1998 from $287,428 in 1997. The increase is
attributed to the two Investigational New Drug (IND) applications filed with the
FDA, and the U.S. Phase I study for Alprox-TD(TM). The Company expects the trend
of increasing its research spending to continue during 1998, as its products
enter into clinical studies in the U.S.
General and Administrative Expenses. General and administrative expenses
were $712,224 and $276,653, in 1998 and 1997, respectively. The increase is due
primarily to the establishment of the JV. The Company's general and
administrative expenses are expected to continue to increase in the future in
support of its research efforts in the U.S., and product commercialization
efforts in China and other international markets. The rate of increase in
general and administrative expenses is expected to be less than the growth rate
of research and development spending. During the first quarter of 1998, the
Company recorded a non-cash charge of approximately $40,375 for certain options
and warrants granted to consultants.
Interest Income and Expense. The Company recognized $127,573 in interest
expense during the first quarter of 1998, compared with $2,523 in income during
the
6
<PAGE>
same period in 1997. The increase is due to notes issued in the fourth quarter
of 1997 and the JV's interest expense for its working capital line of credit.
Interest expense is expected to increase during 1998, in line with the
anticipated increase in working capital requirements of the Company for the
operations of the JV and the expansion of its research and development
activities.
Net Loss. The net loss applicable to common shareholders was ($995,743) or
($0.16) per share for the first quarter in 1998, compared with a net loss of
($511,558) or ($0.09) per share for the same period in 1997. The net loss during
the first quarter of 1998 is attributable in large measure to the increase in
expenses associated with the establishment of the JV, the U.S. product
development programs, and the international commercialization efforts.
LIQUIDITY AND CAPITAL RESOURCES
The Company has experienced net losses and negative cash flow from
operations each year since its inception. Through March 31, 1998, the Company
has incurred an accumulated deficit of $9,177,177. The Company has financed its
operations primarily from sales of equity securities and from borrowing.
In consideration for the formation of the JV, the JV partner's parent,
Xiaolan Industrial General Corporation, is providing the JV with a $1,566,265
(RMB 13 million) unsecured, uncollateralized, revolving line of credit for
working capital. The source of the funds provided to the JV is a line of credit
previously extended to the Company's JV partner, Zhongshan City Xiaolan
Pharmaceuticals Factory ("the Factory"), by the China Industrial and Commercial
Bank. The line of credit provided by the Factory to the JV expires in September
2000 and requires payment of interest only during the term. Interest may be paid
on a monthly basis or accrued at the JV's option. The JV currently pays interest
to the Factory at a rate of 0.924% per month, or 11.088% per year. The line of
credit currently provided to the Factory by the China Industrial and Commercial
Bank is due in September 2000, and the bank has stated that it will not continue
to extend the loan to the Factory and agreed that the JV should apply directly
for the loan. In addition to the payment of interest, the JV is obligated to pay
the principal at the end of the term. The Factory has also provided the JV with
an additional $216,867 (RMB 1.8 million) for working capital, which the parties
have agreed will be repaid on the same terms as the RMB 13 million loan.
The Company's expenditures and capital requirements will depend on
numerous factors, but will mainly be affected by the progress of its research
and development programs, its pre-clinical and clinical testing, its ability to
raise adequate funding, and its ability to complete additional corporate
partnership agreements. The Company's cash needs are expected to continue to
increase significantly in order to fund the additional expenses the Company will
incur as it expands its current research and development programs and completes
its required capital contribution to the China JV.
7
<PAGE>
In the course of its development activities, the Company has incurred
significant losses and expect to incur substantial additional development costs.
As a result, the Company will require additional funds for its U.S. and
international operations and may seek private or public equity investments and
future collaborative arrangements with third parties to meet such needs. In
order to meet its immediate funding requirements, repay short-tern indebtedness
and maintain day-to-day operations, the Company estimates that it will require
$6.5 million over the next 12 months. There is no assurance that such additional
funds will be available for the Company to finance its operations on acceptable
terms, if at all. The Company is actively seeking to raise additional capital,
including through an ongoing private placement. However, if the Company is
unable to raise sufficient funds, the Company may be required to delay, reduce,
or eliminate some or all of its research and development activities, planned
clinical studies, and administrative programs. Based upon the Company's current
resources and anticipated proceeds from the ongoing private placement, the
Company believes that it will have enough cash to sustain its operations through
July 1998. The Company's working capital and additional funding requirements
will depend upon numerous factors, including: (i) the progress of the Company's
research and development programs; (ii) the timing and results of preclinical
testing and clinical trials; (iii) the timing and costs of obtaining regulatory
approvals; (iv) the level of resources that the Company devotes to sales and
marketing capabilities; (v) technological advances; (vi) the activities of
competitors; and (vii) the ability of the Company to conduct clinical trials, to
obtain regulatory approvals and, if such approvals are obtained, to manufacture
and market products.
OTHER FACTORS WHICH MAY AFFECT OPERATING RESULTS
Research And Development
In the first quarter of 1998, the Company spent $387,656 on research
and development. Since January 1, 1994, when the Company repositioned itself as
a medical and pharmaceutical technology company, the Company has spent
$4,338,936 on research and development.
The Company will need significant funding to pursue its research,
development and commercialization plans. The potential products upon which the
Company intends to focus its current development efforts, including the
Alprox-TD(TM) cream and the Viratrol(R) device, are in the research and
development stage. The Company has not begun to market or generate revenues from
the commercialization of any of these products under development. The Company's
products under development will require significant time-consuming and costly
research, development, preclinical studies, clinical testing, regulatory
approval and significant additional investment prior to their commercialization.
There can be no assurance that the research and development activities funded by
the Company will be successful, that products under development will prove to be
safe and effective, that any of the preclinical or clinical development work
will be completed, or that the anticipated products will be commercially viable
or
8
<PAGE>
successfully marketed. In addition, there can be no assurance that the Company
will be successful in obtaining regulatory approval or developing any additional
products, that if successful, it will be able to attract sufficient capital to
complete any development and commercialization undertaken or that any such
development and commercialization will be successful.
Forward-Looking Information
This report contains forward-looking information, including statements
regarding the Company's plans, objectives, expectations and intentions. All
forward-looking statements are subject to risks and uncertainties that could
cause the Company's actual results and experience to differ materially from such
projections. Reference should be made to the Company's annual report on Form
l0-KSB for the fiscal year ended December 31, 1997 and, in particular, the
sections entitled "Description of Business" and "Plan of Operation."
PART II
OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds
In January 1998, the Company issued 15,000 shares of Common Stock upon the
exercise of options at a price of $0.25 per share, in reliance upon Section 4(2)
of the Securities Act of 1933 (the "Securities Act").
In March and April 1998, the Company sold 323,500 shares of its Common
Stock, $0.001 par value per share ("Common Stock"), at a total offering price of
$404,375, or $1.25 per share, to 17 individual investors pursuant to an
exemption from registration under the Securities Act provided by Rule 506 of
Regulation D thereunder. The proceeds of the offering were used for salaries and
benefits of employees, general overhead expenses, the funding of clinical
studies and pre-production activities.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits (in accordance with Item 601 of Regulation S-B)
Set forth below are all the exhibits to this Quarterly Report on Form
10-QSB.
9
<PAGE>
Exhibit
Number Description
------ -----------
10.12 Lease Between Trafalgar House Real Estate, a division of
Trafalgar House Property, Inc., and NexMed (U.S.A.), Inc.,
dated February 6, 1998
27 Financial Data Schedule
(b) Reports on Form 8-K
A Report on Form 8-K, dated February 23, 1998 was filed by the Company
during the quarter ended March 31, 1998. Item 2 was reported. No financial
statements were included. An amendment to such report was filed by the Company
on Form 8-K/A on March 16, 1997. Included in the amendment were (i) the audited
financial statements for the years ended December 31, 1996 and 1995, and
unaudited financial statements for the nine months ended September 30, 1997 and
1996, for the business acquired, and (ii) the unaudited pro forma combined
financial statements for the years ended December 31, 1996 and 1995 and the nine
months ended September 30, 1997.
10
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of
1934, the registrant caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
NEXMED, INC.
Date: May 15, 1998 /s/ Y. Joseph Mo
------------ ---------------------------------------
Y. Joseph Mo
Chairman of the Board of Directors,
President and Chief Executive
Officer
Date: May 15, 1998 /s/ Vivian H. Liu
------------ ---------------------------------------
Vivian H. Liu,
Vice President and Secretary
11
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1997
<CASH> 1,613,518
<SECURITIES> 0
<RECEIVABLES> 1,109,111
<ALLOWANCES> 0
<INVENTORY> 672,110
<CURRENT-ASSETS> 3,717,249
<PP&E> 1,685,117
<DEPRECIATION> (118,540)
<TOTAL-ASSETS> 5,568,036
<CURRENT-LIABILITIES> 6,243,638
<BONDS> 0
0
0
<COMMON> 6,470
<OTHER-SE> (1,548,552)
<TOTAL-LIABILITY-AND-EQUITY> 5,568,036
<SALES> 1,204,670
<TOTAL-REVENUES> 0
<CGS> 1,043,498
<TOTAL-COSTS> 1,043,498
<OTHER-EXPENSES> 1,099,930
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 127,573
<INCOME-PRETAX> (995,743)
<INCOME-TAX> 0
<INCOME-CONTINUING> (995,743)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (995,743)
<EPS-PRIMARY> (0.16)
<EPS-DILUTED> (0.16)
</TABLE>
<PAGE>
========================================
LEASE
Between
TRAFALGAR HOUSE REAL ESTATE,
a division of
TRAFALGAR HOUSE PROPERTY, INC.
Landlord,
and
NEXMED (USA), INC.
Tenant,
Dated: as of February 6, 1998
========================================
MERCER CORPORATE PARK
MERCER COUNTY, NEW JERSEY
<PAGE>
TABLE OF CONTENTS
ARTICLE 1. Reference Data
ARTICLE 2. Demise; Term; Commencement Date; Tenant's Work
ARTICLE 3. Fixed Rent; Additional Rent
ARTICLE 4. Intentionally Omitted
ARTICLE 5. Tax Payment
ARTICLE 6. Expense Payment
ARTICLE 7. Electricity
ARTICLE 8. Use and Occupancy
ARTICLE 9. Compliance with Legal Requirements; Environmental
Compliance
ARTICLE 10. Alterations and Installations
ARTICLE 11. Fixtures and Equipment; Tenant's Property
ARTICLE 12. Maintenance and Repairs
ARTICLE 13. Required Insurance
ARTICLE 14. Damage and Restoration
ARTICLE 15. Condemnation
ARTICLE 16. Building Services
ARTICLE 17. Rules and Regulations
ARTICLE 18. Landlord's Access to Premises; Related Matters
ARTICLE 19. Subordination; Estoppel Certificates; Attornment
ARTICLE 20. Inability to Perform
ARTICLE 21. Surrender of Premises
ARTICLE 22. Assignment, Mortgaging, Subletting, etc.
ARTICLE 23. Quiet Enjoyment
ARTICLE 24. Real Estate Brokers
ARTICLE 25. Adjacent Excavation; Shoring
ARTICLE 26. Defaults; Conditional Limitations; Remedies
ARTICLE 27. Indemnification
ARTICLE 28. Consents and Approvals
ARTICLE 29. Notices
ARTICLE 30. No Waivers
ARTICLE 31. No Representations by Landlord; Landlord's Interest;
Transferee Landlords
ARTICLE 32. Signage; Name of Building; Waiver of Zoning Rights
ARTICLE 33. Memorandum of Lease; No Recording
ARTICLE 34. Security Deposit
ARTICLE 35. Miscellaneous
ARTICLE 36. Right of First Refusal
SCHEDULES
SCHEDULE A The Land
EXHIBITS
EXHIBIT A Floor Plan of Office Premises
EXHIBIT A-1 Floor Plan of Warehouse Premises
EXHIBIT B-1 Definitions
EXHIBIT B-2 Assessments, Expenses and Taxes
EXHIBIT C Permitted Encumbrances
EXHIBIT D Required Insurance
EXHIBIT E Form of Contract of Sale
<PAGE>
I N D E X
Section
-------
Additional Rent................................................ 3.3
ADA............................................................ 9.1
Alteration..................................................... Ex. "B-1"
Alterations Insurance.......................................... 10.4, Ex. "D"
Bank Account................................................... 34.2
Base Expenses.................................................. Ex. "B-2"
Base Taxes..................................................... Ex. "B-2"
Building....................................................... Recitals
Building Systems............................................... Ex. "B-l"
Bureau......................................................... 9.2
Contract....................................................... 36.1
Corporate Park................................................. Ex. "B-1"
Certifying Party............................................... 19.3
City........................................................... Ex. "B-1
Commencement Date.............................................. 1.1
Condemnation................................................... Ex. "B-1"
Damage......................................................... Ex. "B-1"
Decorations.................................................... Ex. "B-1"
Default........................................................ 26.1
Effective Date................................................. 22.5
Employee....................................................... Ex. "B-1"
Encumbrance.................................................... Ex. "B-1"
Estoppel Certificate........................................... 19.3
Expenses....................................................... Ex. "B-2"
Expense Payment................................................ 6.1
Expense Statement.............................................. 6.3
Expiration Date................................................ 1.1
Fees-And-Costs................................................. Ex. "B-1"
Fixed Rent..................................................... 3.1
force majeure.................................................. Ex."B-1"
Government Entity.............................................. Ex. "B-1"
Hazardous Materials............................................ Ex. "B-1"
HVAC System.................................................... 16.1
HVAC Unit...................................................... 16.1
Insurance Policy............................................... 13.2
Insurance Requirement.......................................... Ex."B-1"
Interest Rate.................................................. Ex. "B-1"
ISRA........................................................... 9.2
Land........................................................... Recitals
Landlord....................................................... Preamble
Landlord's Affiliates.......................................... Ex. "B-1"
Landlord's Estimate............................................ 6.2
Law or Legal Requirements...................................... Ex. "B-1"
Legal Proceeding............................................... Ex. "B-1"
Lien........................................................... Ex. "B-1"
Managing Agent................................................. Ex. "B-1"
New Landlord................................................... 19.2
NJDEPE......................................................... 9.2
"notice"....................................................... 29.1
Office Premises................................................ 1.1
Operating Year................................................. Ex. "B-2"
<PAGE>
Permitted Encumbrances......................................... Ex. "C"
Person......................................................... Ex. "B-1"
Premises....................................................... 1.1
Property....................................................... Ex. "B-1"
Property Employees............................................. Ex. "B-1"
Purchase Price................................................. 36.1
Rent........................................................... Ex. "B-1"
Requesting Party............................................... 19.3
Required Insurance............................................. 13.1, Ex. "D"
Restoration or Restore......................................... Ex. "B-1"
Rules and Regulations.......................................... 17.1
Senior Encumbrance............................................. Ex. "B-1"
State.......................................................... Ex. "B-1"
Tax Payment.................................................... 5.1
Tax Statement.................................................. 5.2
Tax Year....................................................... Ex. "B-2"
Taxes.......................................................... Ex. "B-2"
Tenant......................................................... Preamble
Tenant's Affiliates............................................ Ex. "B-1"
Tenant's Percentage............................................ 1.1
Tenant's Work.................................................. 2.3
Term........................................................... 2.1
Termination Notice............................................. 26.2
Warehouse Premises............................................. 1.1
Warehouse Premises Commencement Date........................... 1.1
<PAGE>
MERCER CORPORATE PARK
LEASE made as of February 6, 1998 between TRAFALGAR HOUSE REAL
ESTATE a division of Trafalgar House Property, Inc., c/o Jones Lang Wootton, One
Battery Park Place, New York, New York 10004 ("Landlord") and NEXMED (USA),
INC., a Delaware corporation with offices at 6087 Triangle Drive, Commerce, CA
90040 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord is the owner of that certain real property located
in Mercer County, New Jersey, which real property is described in Schedule "A",
hereto (the "Land") and the building and improvements situated thereon commonly
known by the street address 350 Corporate Boulevard, Robbinsville, New Jersey
08691 (the "Building"); and
WHEREAS, Tenant desires to lease from Landlord, and Landlord is
willing to lease to Tenant (i) approximately 6,010 rentable square feet of the
Building for general office use and (ii) subject to Section 2.5 of this Lease,
approximately 5,540 rentable square feet of the Building for warehouse use;
NOW THEREFORE, in consideration of the rents and agreements set
forth herein, and intending to be legally bound hereby, Landlord and Tenant
agree as follows:
ARTICLE 1. Reference Data.
1.1 Any reference in this Lease to the following terms shall
incorporate therein the data defining such term as set forth in this Article:
PREMISES: (i) Approximately 6,010 rentable square feet
of the Building for general office use, as
shown on the floor plan attached hereto as
Exhibit A (the "Office Premises") and (ii)
subject to the provisions of Section 2.5
hereof, approximately 5,540 rentable square
feet of the Building for warehouse use, as
shown on the floor plan attached hereto as
Exhibit A-1 (the "Warehouse Premises").
LEASE TERM: With respect to the Office Premises, the
term (the "Term") of this Lease shall be
five (5) years commencing at 12:00 a.m. on
the Rent Commencement Date and expiring at
11:59 p.m. on the Expiration Date.
COMMENCEMENT DATE: The date that vacant possession of the
Office Premises is made legally available
for occupancy by Tenant free of all
tenancies.
RENT COMMENCEMENT
DATE: The date which is twenty-one (21) days
following the Commencement Date. Fixed Rent
and all Additional Rent shall be due and
payable from and after the Rent Commencement
Date.
<PAGE>
EXPIRATION DATE: The date immediately preceding the fifth
(5th) anniversary of the Rent Commencement
Date.
FIXED RENT:
- --------------------------------------------------------------------------------
Annual Fixed
Annual Fixed Rent for Office
Annual Fixed Rent for Premises and
Rent for Office Warehouse Warehouse Monthly Fixed
Year Premises Premises Premises Rent
- --------------------------------------------------------------------------------
1 $78,130.00 - 0 - $ 78,130.00 $ 6,510.83
- --------------------------------------------------------------------------------
2 78,130.00 38,780.00 116,910.00 9,742.50
- --------------------------------------------------------------------------------
3 81,135.00 49,860.00 130,995.00 10,916.25
- --------------------------------------------------------------------------------
4 81,135.00 49,860.00 130,995.00 10,916.25
- --------------------------------------------------------------------------------
5 81,135.00 49,860.00 130,995.00 10,916.25
- --------------------------------------------------------------------------------
The first year of the Term shall commence on
the Rent Commencement Date and end on the
date immediately preceding the first
anniversary of the Rent Commencement Date.
All years of the Term next succeeding shall
begin on each anniversary of the Rent
Commencement Date and end on the date
immediately preceding the next succeeding
anniversary of the Rent Commencement Date.
TENANT'S PERCENTAGE: 10.02%
PERMITTED USES: (i) With respect to the Office Premises,
general, executive and administrative
offices, and (ii) with respect to the
Warehouse Premises, warehouse use.
SIC CODE:
BROKER(S): Fennelly Associates, Inc.
SECURITY DEPOSIT: $13,021.66
ELECTRICITY: Direct Metering
1.2 Each reference in this Lease to any of the terms set forth in
Section 1.1 shall be construed to incorporate the reference data included
therein.
ARTICLE 2. Demise; Term; Tenant's Work
2.1 Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord for the Term, the Premises described in Section 1.1 together with the
non-exclusive right to use the common areas of the Property, subject however, to
the Permitted Encumbrances set forth in Exhibit "C" hereto. The term of this
Lease (the "Term") and the Commencement Date are described in Section 1.1.
-2-
<PAGE>
2.2 Tenant agrees that Landlord shall not be required to perform any
work to prepare the Premises for Tenant's occupancy except that Landlord shall,
at Landlord's expense (i) repair the exhaust fan located in the existing
lavatory located in the Office Premises and (ii) erect a demising wall as shown
on Exhibit A, and Tenant agrees that Tenant, by executing the Lease, accepts the
Premises "as is", in their present condition, without representation, covenant
or warranty by Landlord except as otherwise expressly provided in this Lease.
With respect to the Office Premises, Landlord represents that all systems,
equipment and fixtures will be in working order and the roof free of leaks on
the Commencement Date.
2.3 Tenant agrees to perform all work required to prepare the
Premises for Tenant's occupancy (all such work, "Tenant's Work") in compliance
with all Laws (including the Americans with Disabilities Act);
2.4 All Tenant's Work shall be performed as an Alteration in
accordance with the provisions of Article 10 of this Lease.
2.5. On the date immediately preceding the first anniversary of the
Rent Commencement Date, provided as of such date (i) this Lease shall be in full
force and effect and (ii) Tenant shall not be in default with respect to any of
the obligations of Tenant under this Lease, Landlord shall lease and Tenant
shall hire from Landlord the Warehouse Premises. Subject to the provisions
contained in this Section 2.5, on the date immediately preceding the first
anniversary of the Rent Commencement Date, Landlord shall deliver possession of
the Warehouse Premises to Tenant (the date of delivery of possession of the
Warehouse Premises to Tenant being hereinafter referred to as the "Warehouse
Premises Commencement Date") in its "as is" condition, and Landlord shall have
no obligation to perform any work or Alterations in order to prepare the
Warehouse Premises for Tenant's use or occupancy thereof. If, as of the first
anniversary of the Rent Commencement Date, (i) this Lease is not in full force
and effect or (ii) Tenant is in default with respect to any of the obligations
of Tenant under this Lease, then Landlord, in Landlord's sole and absolute
discretion, may elect, by notice to Tenant, to void Tenant's rights to the
Warehouse Premises under this Section 2.5, in which case Tenant shall have no
rights whatsoever with respect to the Warehouse Premises and Landlord shall have
no obligation to deliver possession of the Warehouse Premises to Tenant, and
Tenant shall have no obligation to pay rent for the Warehouse Premises,
notwithstanding the provisions of Article 1.1.
2.6 From and after the Warehouse Premises Commencement Date, the
provisions of this Lease shall apply to the Warehouse Premises, except that:
(i) the term "Premises" shall be deemed to include the Warehouse
Premises;
(ii) the Fixed Rent shall be increased to reflect the inclusion of
the Annual Fixed Rent for Warehouse Premises, as indicated in Section 1.1;
(iii) Tenant's Percentage shall be changed to 19.25%;
(iv) all Additional Rent shall be recalculated to reflect the
inclusion of the Warehouse Premises within the Premises; and
(vi) the term with respect to the Warehouse Premises shall be
co-terminous with the Term of the Lease.
ARTICLE 3. Fixed Rent; Additional Rent.
3.1 Tenant shall pay fixed rent ("Fixed Rent") in the amounts
described in Section 1.1 and all Additional Rent (as defined in Section 3.3)
commencing on the Rent
-3-
<PAGE>
Commencement Date. Tenant acknowledges that Landlord is not obligated to provide
janitorial services or furnish electrical current (except as set forth in
Article 7) to the Premises and that Fixed Rent does not include the costs of
providing such services to the Premises. Fixed Rent and Additional Rent shall be
payable at the offices of the Managing Agent, or at such other place as Landlord
may designate by notice to Tenant, in lawful money of the United States, by
unendorsed check drawn to Landlord's order on a United States bank or financial
institution having an office in the State.
3.2 Any Fixed Rent or Additional Rent payable for one or more full
calendar months in a partial calendar year at the beginning or end of the Lease
Term shall be prorated based upon the number of months. Any Fixed Rent or
Additional Rent payable for a portion of a month shall be prorated based upon
the number of days in the applicable calendar month.
3.3 Tenant agrees to pay as additional rent ("Additional Rent") all
costs and expenses (including all Fees-And-Costs) other than Fixed Rent, which
Tenant has assumed or agreed to pay to Landlord pursuant to this Lease. Unless
otherwise provided, Tenant shall pay all Additional Rent to Landlord fifteen
(15) days after written notice to Tenant. Landlord shall have the same rights
and remedies to terminate this Lease and/or to recover possession of the
Premises for Tenant's failure to pay Additional Rent as for Tenant's failure to
pay Fixed Rent.
3.4 Tenant shall pay all Fixed Rent and Additional Rent promptly
when due and payable, without notice or demand, and without offset, deduction,
credit, abatement, or counterclaim of any kind or for any reason whatsoever,
except as expressly provided to the contrary in this Lease. If Tenant fails to
pay any installment of Fixed Rent or any amount of Additional Rent for more than
five (5) days after the same is due, Tenant shall pay interest thereon at the
Interest Rate from the date due through the date of payment, together with
$50.00 as a charge incident to the handling of a delinquent account.
3.5 If Tenant fails to make any payment whatsoever required by this
Lease (other than Rent), or if Tenant fails to keep or perform any other term of
this Lease after the expiration of any applicable notice and cure period(s), or
if this Lease provides in any case that Landlord may take certain actions at
Tenant's expense, Landlord may, on fifteen (15) days, written notice to Tenant
(except in the event of an emergency in which case no notice will be required),
make any such payment and/or take such action as Landlord deems reasonably
necessary or desirable to perform and fulfill such term, covenant, condition or
provision. Tenant agrees to reimburse Landlord, within fifteen (15) days after
notice by Landlord, for all reasonable amounts so paid or incurred by Landlord
(including all reasonable and customary Fees-And-Costs, if any), together with
interest on each such amount at the Interest Rate from the date such payment
shall be made or such amounts shall be paid or incurred by Landlord.
ARTICLE 4. Intentionally Omitted.
ARTICLE 5. Tax Payment.
5.1 Tenant shall pay Landlord as Additional Rent for each Tax Year
(or portion thereof) occurring during the Term an amount (the "Tax Payment")
equal to Tenant's Percentage of all Taxes for such Tax Year in excess of the
Base Taxes. The Tax Payment shall be payable in four (4) equal quarterly
installments on the thirtieth (30th) day before each such installment is due.
5.2 Landlord shall furnish Tenant with a written statement of the
Tax Payment due with respect to each Tax Year (each such statement, a "Tax
Statement") (together with a copy of the applicable tax bills, or equivalent
documentation). If Landlord issues a Tax Statement after the beginning of the
applicable Tax Year, then until such Tax Statement is rendered, Tenant shall pay
the Tax Payment for such Tax Year in four (4) equal quarterly installments based
upon the most recent Tax Statement rendered to Tenant; and within thirty (30)
-4-
<PAGE>
days after receiving a new Tax Statement, Tenant shall either pay Landlord an
amount equal to any underpayment for such Tax Year, or receive a credit against
subsequent payments under this Article 5 in an amount equal to any overpayment
for such Tax Year. Landlord's delay in rendering a Tax Statement with respect to
any Tax Year shall not prejudice Landlord's right thereafter to render a Tax
Statement with respect to that (or any later) Tax Year. The rights and
obligations of Landlord and Tenant under this Article shall survive expiration
of the Term or other termination of this Lease.
5.3 If at any time, Taxes are required to be paid in annual,
semi-annual, or other installments, or on any date or dates other than as
presently required, whether such Taxes are required to be paid to any Government
Entity or to be paid to a lender or ground lessor in escrow pursuant to a
mortgage or ground lease of the Property then, at Landlord's option, the Tax
Payments shall be correspondingly rescheduled so that Tenant's Tax Payments are
due not earlier than thirty (30) days before such payments are due (except that
with respect to any escrow of Taxes required under any mortgage or ground lease,
payments into such escrow shall not be required to be made more often than
quarterly). A Tax Payment covering any fiscal period which includes a period
before the Commencement Date or after the Expiration Date shall be apportioned
between Landlord and Tenant on a per diem basis.
ARTICLE 6. Expense Payment.
6.1 Tenant shall pay Landlord, as Additional Rent for each Operating
Year an amount equal to Tenant's Percentage of all Expenses for each Operating
Year (or any portion thereof) in excess of the Base Expenses (such amounts shall
be collectively referred to in this Lease as the "Expense Payment").
6.2 Landlord shall give Tenant a written statement for each
Operating Year no later than ninety (90) days after the commencement of such
Operating Year, setting forth Landlord's reasonable estimate of Tenant's Expense
Payment for such Operating Year ("Landlord's Estimate"). Tenant shall pay
Landlord an amount equal to one-twelfth (1/12) of Landlord's Estimate on the
first day of each and every month during the Operating Year. If Landlord
delivers Landlord's Estimate after an Operating Year begins then, until the
first day of the month after the month in which Tenant receives Landlord's
Estimate, Tenant shall pay Landlord an amount equal to the monthly sums payable
by Tenant under this Section for the last month of the preceding Operating Year;
and on the first day of the month following the month in which Tenant receives
Landlord's Estimate (and monthly thereafter for the balance of such Operating
Year) Tenant shall pay Landlord an amount equal to one-twelfth (1/12) of
Landlord's Estimate. If Tenant's previous payments for the Operating Year were
more or less than the amounts which Tenant should have paid pursuant to
Landlord's Estimate, Tenant shall pay any underpayment within thirty (30) days
after receiving Landlord's Estimate or Landlord shall credit any overpayment
against subsequent payments under this Article 6. Landlord may reasonably revise
all or any part of Landlord's Estimate for a particular Operating Year.
6.3 No later than six (6) months subsequent to the end of each
Operating Year, Landlord shall submit to Tenant a reasonably detailed written
statement (the "Expense Statement") prepared by the Managing Agent setting forth
the Expenses for the preceding Operating Year and the balance of the Expense
Payment, if any, due from Tenant for such Operating Year. If Tenant's payments
under Section 6.2 were greater than the Expense Payment for such Operating Year,
Landlord shall apply such excess to, at Landlord's option, Fixed Rent,
Additional Rent or Tenant's Expense Payment for the following Operating Year. If
Tenant's prior payments were less than the Expense Payment for such Operating
Year, Tenant shall pay Landlord the deficiency within thirty (30) days after
receipt of the Expense Statement. Landlord's delay in rendering an Expense
Statement for any Operating Year shall not prejudice Landlord's right thereafter
to render an Expense Statement with respect to that (or any later) Operating
Year. The rights and obligations of Landlord and Tenant under this Article shall
survive expiration of the Term or other termination of this Lease.
-5-
<PAGE>
6.4 If the Commencement Date is other than the first day of an
Operating Year, or if the Expiration Date is a day other than the last day of an
Operating Year, the Expense Payment for such partial year shall be adjusted on a
per diem basis to reflect the number of days in the Operating Year actually
within the Term.
6.5 Each Expense Statement shall be conclusive and binding upon
Tenant unless within ninety (90) days after receipt thereof Tenant notifies
Landlord that Tenant disputes the correctness of such Expense Statement,
specifying the particular respects in which the same Expense Statement is
allegedly incorrect. Pending the determination of any such dispute, Tenant shall
make all payments in accordance with the disputed statement without prejudice to
Tenant's position.
ARTICLE 7. Electricity.
7.1 Tenant shall obtain and pay for Tenant's entire separate supply
of electric current by direct application to, and arrangement with, the public
utility company servicing the Building. Tenant agrees within thirty (30) days of
the Commencement Date (and with respect to the Warehouse Premises, within thirty
(30) days of the Warehouse Premises Commencement Date) to install a meter, at
Tenant's sole cost and expense, to measure Tenant's electrical consumption in
the Premises, and to open a direct account with the electric utility servicing
the Premises. If, pursuant to a Legal Requirement or the policies or operating
practices of the public utility company servicing the Building, Tenant is no
longer permitted to obtain electrical energy directly from the public utility
company, Landlord will furnish electrical energy to the Premises either, at
Landlord's option, on a "check-metering" basis or a rent-inclusion basis.
Landlord shall give Tenant notice at least thirty (30) days prior to the date on
which Landlord shall commence furnishing electrical energy to the Premises
(unless such notice is not feasible under the circumstances, in which event
Landlord will give Tenant such notice as is reasonably possible), which notice
will set forth the terms on which Landlord will so furnish electrical energy to
the Premises. In no event shall the method selected by Landlord result in a cost
to Tenant for electrical energy in excess of the cost which Tenant would have
borne had Tenant continued to receive electric energy directly from the public
utility servicing the Premises. If any utilities are not (or cannot be)
separately metered or assessed or are only partially separately metered or
assessed and are used in common with other tenants of the Building, Tenant will
pay to Landlord an equitable apportionment of such charges for utilities used in
common with other tenants of the Building, based on the square footage of floor
space leased to each tenant using such common facilities, the average electrical
consumption of each tenant and other pertinent considerations, in addition to
Tenant's payment of the separately metered charges.
7.2 Tenant's use of electric current in the Premises shall not
exceed the capacity of any electrical conductors and equipment in or otherwise
serving the Premises. Tenant shall not, without the prior consent of Landlord
make or perform or permit any alteration to wiring installations or other
electrical facilities in or serving the Premises. If Landlord grants such
consent, all additional conduit, feeders and wiring or other equipment required
therefor shall be provided and/or installed by Landlord and the cost thereof
shall be paid by Tenant as Additional Rent within fifteen (15) days after demand
therefor.
7.3 Landlord shall not be liable to Tenant for any reduction in
service, failure, or defect in the supply or character of electric current
furnished to the Premises where such reduction in service, failure, or defect is
required by Legal Requirements or results from any requirement, act or omission
of the public utility supplying electricity to the Property, or for any other
reason whatsoever other than Landlord's wrongful or negligent acts or omissions.
7.4 Notwithstanding any other provision of the Lease, Tenant agrees
that until such time as Tenant shall have arranged with the public utility
servicing the Building to obtain electricity by directing metering of Tenant's
consumption, all electricity consumed in the Premises shall be registered on the
existing meter and billed to Tenant at Landlord's cost as
-6-
<PAGE>
Additional Rent. Tenant agrees to pay all such charges within ten (10) days of
being billed therefor.
ARTICLE 8. Use and Occupancy.
8.1 Tenant covenants that it shall take possession promptly after
the Commencement Date, continuously occupy the Premises and not vacate or
abandon the Premises during the Term. The Office Premises shall be used for the
uses described in Section 1.1 and for no other use and the Warehouse Premises
shall be used for the use described in Section 1.1 and for no other use.
8.2 Tenant shall not: (a) create a public or private nuisance or
cause or allow any disfigurement or damage to the Premises or permit waste or
trash to accumulate in the Premises; (b) use or permit the use of the Premises
for any hazardous purpose or for any uses in violation of the Certificate of
Occupancy for the Building or do anything (or permit anything to be done) which
would result in a change of Tenant's primary SIC classification or number to a
classification or number falling within the following classifications or
numbers: 22-39 (both inclusive), 44-49 (both inclusive), 51 or 76; and/or (c)
impair or interfere with any services furnished to other tenants of the
Property, or the maintenance of the Property or the Corporate Park.
ARTICLE 9. Compliance with Legal Requirements; Environmental
Compliance.
9.1 Prior to the Commencement Date (or the Warehouse Premises
Commencement Date, with respect to the Warehouse Premises), if Tenant is then in
possession of the Premises, and at all times during the Term, Tenant, at
Tenant's sole cost and expense, shall promptly comply with all present and
future Legal Requirements and all other orders, rules and regulations of any
Government Entity which shall impose any violation, order or duty upon Landlord
or Tenant with respect to the Premises or with respect to Tenant's manner of use
of the Premises, whether or not any such Legal Requirement shall necessitate
alterations or improvements or interfere with the use or enjoyment of the
Premises; provided, however, that Tenant shall not be required to make
structural alterations to the Premises in order to comply with Legal
Requirements, all of which shall be the responsibility of Landlord, unless the
necessity therefor arises as a result of Tenant's manner of use of the Premises
(in contradiction to the use of the Premises for general office purposes); or as
a result of Tenant's failure to comply with any obligation of Tenant under this
Lease; nor shall Tenant be required to remedy any violation of Legal
Requirements which is caused by the acts of Landlord or Landlord's Affiliates,
prior Tenants or subsequent Tenants. Without limiting the foregoing, Tenant
shall make or cause to be made all Alterations (including, without limiting the
generality of the requirement in this sentence, removing such barriers and
providing such alternative services), as shall be required by the Americans with
Disabilities Act of 1990 and such rules and regulations as shall be from time to
time promulgated thereunder (the "ADA") required as a result of the making of
any Alterations by Tenant or Tenant's specific use, and not generally applicable
to office/warehouse uses. Tenant shall procure, pay for and maintain all
permits, approvals, licenses and other authorizations needed for the conduct of
Tenant's business in the Premises and shall provide true and complete copies
thereof upon demand by Landlord.
9.2 Tenant shall, at Tenant's own expense, comply with the
Industrial Site Recovery Act, 1993 N.J. Laws 139 ("ISRA") and the regulations
promulgated thereunder, with respect to Tenant's obligations under this Lease,
which may now or hereafter arise; and Tenant shall further comply with all
applicable requirements of, the Bureau of Industrial Site Evaluation (the
"Bureau") of the New Jersey Department of Environmental Protection and Energy
("NJDEPE"). Should the Bureau of any other division or agency of NJDEPE
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
Premises which occur during the Term of this Lease and
-7-
<PAGE>
which are caused by Tenant or Tenant's Affiliates, then Tenant shall prepare and
submit the required plans and financial assurances, and carry out the approved
plans at Tenant's expense (provided, however, that if such plan or cleanup is
required as a result of the acts or omissions of Landlord or Landlord's
Affiliates then Landlord shall prepare and submit the required plans and
financial assurances and carry out the approved plans at Landlord's expense).
Tenant, shall promptly provide all information reasonably available and within
Tenant's control requested by Landlord for preparation of nonapplicability
affidavits and shall promptly sign such affidavits when requested by Landlord.
Tenant's obligations and liabilities under this Section shall survive the Term
without limitation. Tenant's failure to abide by the terms of this Section shall
be restrainable by injunction. Tenant hereby agrees that only sanitary sewage
(as defined in N.J.S.A. 7:14A-1.9) shall be discharged into the sewer or septic
system and that no "industrial pollutants" (as defined in the Clean Water Act of
1977 and any amendments thereto) shall be discharged into such system. Landlord
shall cooperate and provide reasonable access to Tenant to comply with the
requirements of Article 9.
9.3 Tenant hereby covenants and agrees, at its sole cost and
expense, to indemnify, protect and save Landlord, Landlord's Affiliates harmless
against and from any and all damages, losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, judgments, suits, proceedings,
costs, disbursements or expenses (including, without limitation, reasonable
attorneys' and experts' fees and disbursements and court and transcript Costs)
which may at any time be imposed upon, incurred by, or asserted or awarded
against Landlord, Landlord's Affiliates, to the extent the same result from the
acts or omissions of Tenant, Tenant's Affiliates and/or Tenant's sub-tenants or
designees, and/or any of Tenant's contractors while on the Premises with respect
to the storage, maintenance, use, discharge, spillage, or disposal of any
Hazardous Materials on, in, under or affecting any portion of the Property, or
any surrounding areas.
9.4 Notwithstanding anything to the contrary herein, Tenant shall
not be responsible for any acts or omissions of Landlord or Landlord's
Affiliates which caused liability under any Legal Requirements before or during
the Term of this Lease. Notwithstanding the above, nothing herein shall make
Tenant responsible for any costs relating to environmental contamination which
either (1) existed on the Property prior to the Commencement Date; (2) was
caused by Landlord, or Landlord' employees, agents, or contractors or other
tenants or former tenants; or (3) occurs or migrates to the Property after
Tenant quits the Premises, unless caused by the acts of Tenant, or Tenant's
employees, agents, or contractors.
ARTICLE 10. Alterations and Installations.
10.1 Tenant shall not commence any Alteration without Landlord's
prior written consent.
10.2 Landlord will not unreasonably withhold nor delay its consent
to an Alteration except, however, to any Alteration which: (a) in Landlord's
reasonable opinion will alter or adversely affect any portion of the Building
Systems or structure, facade, roof, or foundation of the Building; (b) will
detract from the use or character of the Property; (c) will require amendment of
any certificate of occupancy for the Property; or (d) in Landlord's reasonable
opinion will adversely interfere with the use or occupancy of any other tenant
of the Property. Landlord may reasonably impose, as a condition to the granting
of its consent to any Alteration that Tenant remove such Alteration at the end
of the Term as required pursuant to Section 11.2.
10.3 Tenant shall cause all plans and specifications for a proposed
Alteration to be prepared at Tenant's expense (by a licensed architect or
engineer if required as a condition to the procuring of any permit or other
approval required by applicable Legal Requirements and otherwise by a competent
designer or draftsperson) and shall submit the same to Landlord for Landlord's
written approval; provided, however, that Landlord's approval (if given) shall
not imply that the Alteration is properly designed or complies with Legal
Requirements.
-8-
<PAGE>
10.4 With respect to every Alteration: (a) Tenant shall procure or
cause to be procured all permits, approvals, consents, licenses required by
applicable Legal Requirements; (b) Tenant shall undertake and complete all work
in connection with the Alteration expeditiously and in a good and workmanlike
manner; (c) each Alteration when completed will conform to the plans and
specifications approved by Landlord; (d) Tenant shall employ only contractors
approved by Landlord in writing, such approval not to be unreasonably withheld,
and any contractor employed by Tenant (and all subcontractors) shall agree to
use only such labor as will not result in, or threaten to result in,
jurisdictional disputes, work stoppages, picketing, boycotts or strikes or which
shall cause labor strife with other workers employed at the Property or at the
Corporate Park; (e) Tenant shall carry (and will cause its contractors and
sub-contractors to carry) all Alterations Insurance coverages described in
Exhibit D hereto; (f) Tenant shall reimburse Landlord for the reasonable cost of
review by architects and/or engineers, field inspection, coordination, and other
reasonable out-of-pocket costs of Landlord with respect to such Alteration.
10.5 No Lien for any labor, materials, or other services or things
furnished to Tenant shall attach to Landlord's estate or interest in the
Property and no consent by Landlord to any Alteration shall be construed as a
consent on the part of the Landlord to subject the Premises or the Property to
any liability or obligation under the Mechanic's Lien Law of the State of New
Jersey. Tenant agrees to discharge, at Tenant's expense every Lien filed against
the Premises and/ or the Property for work claimed to have been done for or
materials claimed to have been furnished to Tenant, within thirty (30) days
after written notice from Landlord.
ARTICLE 11. Fixtures and Equipment; Tenant's Property.
11.1 All Alterations made and installed upon or in the Premises by
Landlord either at Landlord's expense or with respect to which Landlord has
granted Tenant a credit or allowance (including, without limitation, all
Landlord's Work and any Tenant's Work with respect to which a credit or
allowance has been granted by Landlord) shall be Landlord's property and shall
remain upon the Premises (and be surrendered by Tenant) at the end of the Term.
11.2 All Alterations made and installed upon or in the Premises
(whether by Landlord or Tenant) which are "fixtures" under the Legal
Requirements of the State, and which are of a permanent nature and which cannot
be removed without material damage to the Property shall become Landlord's
property and shall remain upon (and be surrendered) with the Premises at the end
of the Term or upon any earlier cancellation or termination of this Lease.
Landlord shall have the right to require Tenant to remove any Alterations which
Landlord advised Tenant that it would require Tenant to remove and Restore, and
Tenant shall remove the same in accordance with such request.
11.3 All furniture, furnishings and trade fixtures furnished by
Tenant or at Tenant's expense (including all business machines and equipment,
counters, screens, cages, freestanding partitions, freestanding cabinets,
freestanding lighting fixtures and equipment and drinking fountains) and any
other movable property of Tenant shall be and remain property of Tenant which
Tenant must remove on or before the Expiration Date.
11.4 If any Alterations or other property which Tenant may or must
remove under Sections 11.2 or 11.3 are not removed on or before the Expiration
Date, Landlord may at any time thereafter upon five (5) days' notice to Tenant
remove and dispose of the same at Tenant's expense.
11.5 Tenant shall provide Landlord with photocopies of all bills,
invoices, and records relating to Alterations costing more than five thousand
dollars ($5,000) in each instance within a reasonable time after the completion
of such Alterations. Tenant shall also provide Landlord with all manuals and
other instructional materials pertaining to any equipment or machinery installed
by Tenant in the Premises.
-9-
<PAGE>
ARTICLE 12. Maintenance and Repairs.
12.1 Landlord shall, at its expense, maintain the Building including
roof and structural elements and all parking lots and landscaping, keeping all
spaces, driveways and sidewalks free from snow and ice and in good repair and
condition as befits similar properties in the general location of the Property.
12.2 Tenant shall be responsible for the maintenance and repair of
the Premises and to keep the Premises and all partitions, window frames and
moldings, glass, doors, door openers, fixtures, equipment and any supplemental
HVAC, electrical, plumbing and mechanical systems installed by Tenant (if any),
and appurtenances thereto and all other parts of the Premises in good order,
condition and repair, and clean, orderly, sanitary and safe.
12.3 If Tenant fails to maintain or make any repairs required to be
made by Tenant under this Article 12 after fifteen (15) days prior notice from
Landlord, or to commence and diligently prosecute such repairs if the same
cannot be completed within such ten (10) days, Landlord may perform such
maintenance or repairs at Tenant's expense and collect the cost thereof from
Tenant upon ten (10) days, written notice, as Additional Rent, together with
fifteen percent (15%) of the cost thereof.
ARTICLE 13. Required Insurance.
13.1 In this Lease "Required Insurance" means the insurance
coverages specified in Exhibit "D". At Tenant's sole expense, Tenant shall
secure and keep in force all Required Insurance at all times during the Term.
13.2 All policies of Required Insurance shall be issued by an
insurance company rated "A" or better by Best's and having a Best's Financial
Size category of "XIV" or better and licensed to do business in the State. (Each
policy providing Required Insurance is referred to in this Lease as an
"Insurance Policy".) Each Insurance Policy shall provide that the same shall not
be canceled except after thirty (30) days, prior notice to Landlord.
Certificates of insurance or, if required by Landlord or the holder of any
Senior Encumbrance, certified copies or duplicate originals of the original
policies, together with reasonably satisfactory evidence of payment of the
premiums therefor, shall be delivered to Landlord and the holder of any Senior
Encumbrance on or before the Commencement Date.
13.3 All policies of property and casualty insurance carried by
Landlord and Tenant shall include a waiver by the insurer of all rights of
subrogation against Landlord and Landlord's Affiliates in connection with any
lose or damage thereby insured against. If Insurance Policies with such waivers
are available only at extra premium, the insured party will give written notice
to the other, who may pay the extra premium for such waiver within thirty (30)
days after giving of such notice; and the insured party will then secure the
waiver of subrogation. Landlord and Tenant hereby release each other from any
claims, losses, liability or Damage, whether or not caused by the negligence of
the other, due to hazards covered by Insurance Policies containing such a waiver
of subrogation. If the release of either Landlord or Tenant or any other party
in this Section contravenes any law respecting exculpatory agreements, the party
purportedly released hereunder shall not be released; but such party's liability
shall be secondary to that of the other party's insurer.
13.4 All insurance procured by Tenant under this Article 13 shall be
issued in the names (as additional insureds) and for the benefit of Landlord,
Landlord's Affiliates and, at Landlord's request, the holder of any Senior
Encumbrance, as their respective interests may appear, and shall contain an
endorsement that each of such parties shall be entitled to recover under said
policies for any loss or Damage occasioned by reason of the negligence or
tortious acts of Tenant, its servants, agents, employees and contractors. Tenant
and Landlord shall
-10-
<PAGE>
cooperate with each other and with the holders of any Senior Encumbrances in
connection with collection of any insurance proceeds.
13.5 Tenant shall not secure separate insurance concurrent in form
or contributing in the event of loss with any Insurance Policy required under
this Lease. Tenant shall not do or permit to be done any act or thing upon the
Premises which will invalidate any Insurance Policy or be in conflict with any
Insurance Requirements, or increase the rate of fire insurance applicable to the
Property. Tenant shall reimburse Landlord, as Additional Rent not later than
fifteen (15) days after demand, for all increases of Landlord's insurance
premiums resulting from violations of Tenant's obligations under Section 13.6.
In any Legal Proceeding involving the cost of insurance, a schedule or "make-up"
of rates issued by the body making insurance rates for the Property or the
Premises shall be presumptive evidence of the items and charges taken into
consideration in fixing the insurance rates then applicable to the Premises or
the Property.
13.6 Landlord shall maintain at all times during the Term fire and
extended coverage insurance covering the Building in the minimum amount
sufficient to prevent Landlord from being a co-insurer under its policies of
insurance and public liability and property damage insurance in an amount
customary for properties similar to the Property; or, self-insure the
aforementioned coverages. If Landlord shall self-insure hazards covered under
this Section, the waiver of subrogation required by Section 13.3 shall apply to
Landlord as though a policy of insurance was in effect.
ARTICLE 14. Damage and Restoration.
14.1 Tenant shall promptly notify Landlord of any Damage to the
Premises. If the Premises shall be Damaged or rendered untenantable or partially
untenantable by fire, the elements, or other insured casualty, and this Lease is
not terminated pursuant to this Article, Landlord shall proceed with due
diligence to repair such Damage and Restore the Premises promptly and with due
diligence following the collection by Landlord of insurance proceeds in respect
of such fire or other casualty, subject to delays reasonably beyond the control
of Landlord. Landlord shall not be liable for any interruption to Tenant's
business or for any Damage to, or replacement or Restoration of, Tenant's
inventory, trade fixtures, furniture, furnishings and equipment and other
property removable by Tenant under the provisions of this Lease or to any
leasehold improvements installed in the Premises by Tenant, all of which
replacement and Restoration shall be promptly undertaken and completed by Tenant
at its sole cost and expense.
14.2 If, as a result of such Damage, either:
(a) the Premises is damaged or rendered untenantable to the extent
of twenty-five percent (25%) percent or more thereof at any
time during the Term; or
(b) the Building is Damaged or rendered untenantable to the extent
of fifty percent (50%) or more of its replacement cost or to
the extent that substantial alteration, demolition, or
reconstruction of the Building shall be required (whether or
not the Premises shall have been damaged or rendered
untenantable); or
(c) the Restoration of the Premises will require more than six (6)
months, then
in each case, in the professional opinion of a reputable contractor or architect
selected by Landlord, then, in any of such events, rent shall abate from the
date of casualty or damage, and Landlord or Tenant may, not later than ninety
(90) days following date of such Damage, give the other party a notice in
writing terminating this Lease. If either party elects to terminate this Lease
as aforesaid, the Term shall expire upon the thirtieth (30th) day after such
notice is given
-11-
<PAGE>
as if such date were the Expiration Date and Tenant shall thereupon vacate the
Premises and surrender the same to Landlord in accordance with all provisions of
this Lease.
14.3 If Landlord is required to Restore the Premises pursuant to the
provisions of this Article 14, Landlord's obligation shall be limited to
Restoration of the Premises (excluding restoration of all furniture, trade
fixtures and other movable personal property and fixtures whether the same were
installed by Tenant or by Landlord). Tenant, at Tenant's expense, shall promptly
perform all replacements or Restoration not required to be performed by Landlord
and shall promptly re-enter the Premises and resume doing business in accordance
with all provisions of this Lease. Landlord shall not be liable for delays
occasioned by adjustment of losses with insurance carriers or by any other cause
so long as Landlord shall proceed in good faith.
14.4 In any case in which all or a part of the Premises become
unusable by Tenant for a consecutive period of more than two (2) days as a
result of fire, the elements or other insured casualty not caused by the
negligence or wrongful conduct of Tenant or of its Employees or guests, Tenant
shall be entitled to an abatement of Rents from the date of such Damage to the
date when the Premises have been substantially Restored. Such abatement shall be
in direct proportion to the ratio of the usable area of the Premises rendered
unusable as a result of such Damage to the total usable area of the Premises.
14.5 This Article shall be considered an express agreement governing
any case of Damage to the Premises and any provisions of the Legal Requirements
of the State of New Jersey which conflict with the provisions set forth herein
are hereby waived by Tenant. Without limiting the foregoing, Tenant hereby
expressly waives the benefit of New Jersey Revised Statutes, Title 46, Chapter
8, Sections 6 and 7 and any successor statute.
ARTICLE 15. Condemnation.
15.1 If all or any part of the Premises shall be Condemned by any
Government Entity, this Lease shall terminate as to the portion so taken on the
date Tenant is required to yield possession thereof to the Condemning Government
Entity. Landlord shall Restore the portion of the Premises not Condemned so that
it may be legally occupied by Tenant and all Rents shall be reduced in direct
proportion to the ratio that the usable area of the Premises so taken bears to
the total usable area of the Premises. If the Condemnation renders the remainder
of the Premises unsuitable for the uses of Tenant permitted under Section 1.1,
then either Landlord or Tenant may terminate this Lease as of the date when
Tenant is required to yield possession by giving notice terminating this Lease
within ninety (90) days after such date. If twenty-five percent (25%) or more of
the Building is Condemned as aforesaid, or if parking spaces on the Property are
substantially reduced by such Condemnation, or if Landlord does not deem it
reasonably feasible to replace such parking spaces with other parking spaces on
the portion of the Property not Condemned, then either party may elect to
terminate this Lease as of the date on which possession thereof is required to
be yielded to the Condemning Government Entity, by giving notice of such
election within thirty (30) days after such date. If Landlord elects to
terminate this Lease as aforesaid, the Term shall expire upon the thirtieth
(30th) day after such notice is given as if such date were the Expiration Date
and Tenant shall thereupon vacate the Premises and surrender the same to
Landlord in accordance with all provisions of this Lease.
15.2 In the event of any permanent Condemnation of all or any
portion of the Property, whether or not this Lease shall be terminated by virtue
thereof, Landlord shall be entitled to receive the entire award and
compensation, without deduction for any estate vested in Tenant by this Lease
(or any value attributable thereto) and Tenant agrees to execute and file any
and all applications and documents necessary or desirable to facilitate
Landlord's collection of any such award and compensation. Nothing contained in
this Article shall be deemed to prevent Tenant from making a separate claim in
any Condemnation proceeding for the unamortized cost of any fixtures or
leasehold improvements paid for by Tenant for moving expenses and business
dislocation costs and for the loss of Tenant's "good will", if any, but only if
such award shall be
-12-
<PAGE>
made by the Government Entity in addition to, and shall not result in a
reduction of the award received by, Landlord.
ARTICLE 16. Building Services.
16.1 Landlord shall maintain and repair the heating, air
conditioning and ventilation system (the "HVAC System") serving the Office
Premises to distribute heating, ventilation and air conditioning to the Office
Premises. The HVAC System shall be equipped with controls operable by Tenant and
metered to register Tenant's electrical consumption which shall be paid by
Tenant. Tenant shall keep unobstructed all vents, intakes, outlets and grilles
of the HVAC System and shall comply and observe all regulations and requirements
reasonably prescribed by Landlord for the proper functioning of such systems.
The rearrangement of partitioning which interferes with normal operation of the
HVAC System, may require changes in the heating, ventilating and/or
air-conditioning systems servicing the Premises in order to provide comfortable
occupancy. Such changes shall be made at Tenant's expense as Alterations in
accordance with the provisions of Article 10, subject to all provisions set
forth in that Article. Nothing in this Lease shall be deemed to require Landlord
to operate, maintain or repair, at Landlord's expense, any supplementary or
accessory HVAC system which is not a part of the central HVAC System.
16.2 Landlord shall furnish hot and cold water to the Office
Premises 24 hours per day, 365 days per year for ordinary lavatory, drinking,
and office cleaning purposes.
16.3 All services other than as provided pursuant to Section 16.1 or
16.2 to be provided to, or which shall be necessary for the conduct of, Tenant's
operations within the Premises, including, without limitation and for purposes
of illustration, electricity, gas, telephone, janitorial, cleaning, security and
any other utility or service which Tenant shall deem necessary or desirable,
shall be separately arranged, maintained and paid for by Tenant. Tenant's
utilities shall be separately metered, where possible, and all costs of any
utilities not separately metered shall be Additional Rent. Landlord shall not
provide cleaning services to any portion of the Premises. Tenant, at its sole
cost and expense, shall cause the Premises to be kept clean and in a good and
orderly condition as befits similar buildings in Mercer County. In the event
Tenant shall employ a contractor to provide any services to the Premises, such
contractor (and any subcontractors) shall agree to employ only such labor as
will not result in jurisdictional disputes or strikes. Tenant shall inform
Landlord of the names of any contractor or subcontractor Tenant proposes to use
in the Premises at least fifteen (15) days prior to the beginning of work by
such contractor or subcontractors.
16.4 Landlord reserves the right to stop or interrupt any of the
services required to be provided under this Lease, and the use of any Building
Systems or other facilities, at such times as shall be required by reason of
accidents, strikes, making of necessary repairs, alterations or improvements,
inability to secure a proper supply of fuel, gas, steam, water, electricity,
labor or supplies, or any other similar or dissimilar causes whatsoever beyond
Landlord's reasonable control. In any case in which such interruption occurs for
a period of more than five (5) days, Tenant shall be entitled to an abatement of
rent from the date of such interruption until the date that the services have
been restored.
16.5 If Tenant desires extra services or overtime services, Landlord
will directly charge Tenant for such extra or overtime services and exclude
those charges from Expenses.
ARTICLE 17. Rules and Regulations.
17.1 Tenant shall observe and comply with all rules and regulations
uniformly applicable to all Tenants at the Property reasonably promulgated by
Landlord from time to time (the "Rules and Regulations").
-13-
<PAGE>
17.2 Landlord shall not be liable for the non-compliance by any
other tenant, occupant, or owner of the Corporate Park with the Rules and
Regulations, but shall take reasonable measures to enforce same.
ARTICLE 18. Landlord's Access to Premises; Related Matters.
18.1 Tenant shall permit Landlord to erect, use and maintain pipes,
ducts and conduits in and through the Premises, provided the same are installed
adjacent to or concealed behind the wall and ceilings of the Premises. Landlord
shall be allowed to bring into the Premises all necessary materials, equipment,
tools, and supplies to be used for any work permitted or required under this
Lease; and Rents shall not abate while said repairs or alterations are being
made. Landlord shall use reasonable efforts to minimize interference with
Tenant's business operations in the Premises.
18.2 Landlord shall at all times have a key to unlock all of the
doors in and about the Premises. No additional locks, other devices or systems
which would restrict access to the Premises shall be placed upon any doors
without the prior consent of the Landlord, Landlord may enter the Premises on
business days during business hours on reasonable notice, but at any time in
case of emergency (and by force, if necessary, in such event) to exhibit the
Premises in connection with any prospective sale, lease or financing; to inspect
the Premises and/or to perform any maintenance or to make any repairs,
alterations, or improvements which Landlord deems necessary or which are
otherwise permitted or required under this Lease.
ARTICLE 19. Subordination; Estoppel Certificates; Attornment.
19.1 This Lease and the leasehold estate created hereby, are now and
shall hereafter be subject and subordinate in every respect to all Senior
Encumbrances. This subordination shall be self-operative; however, if and
whenever requested by Landlord or the holder of any Senior Encumbrance, Tenant
shall execute and deliver promptly any certificate or instrument (in recordable
form, if required) requested to evidence such subordination.
19.2 Upon request of any future fee owner or the holder of any
Senior Encumbrance who succeeds to the rights of Landlord hereunder (any such
Person, a "New Landlord"), Tenant shall attorn to and recognize each New
Landlord as "Landlord" under this Lease; and Tenant shall promptly execute and
deliver any instrument which each New Landlord may reasonably request to
evidence such attornment. Upon such attornment, this Lease shall continue in
full force and affect as, or as if it were, a direct lease between New Landlord
and Tenant; except, however, that any New Landlord (if not Landlord, an
affiliate of Landlord or a nominee or designee of Landlord) shall not:
(a) be liable for any previous act or omission of Landlord under the
Lease, or any claim which shall have previously accrued to Tenant against
any prior Landlord (unless such act, omission or claim shall be of a
continuing nature); or
(b) be bound by any prepayment to any prior Landlord of more than
one month's Fixed Rent or Additional Rent, after Tenant has received
Notice of New Landlord's interest, unless the New Landlord shall have
approved the prepayment in writing or received the prepayment in question;
or
(c) be subject to any prior offsets, claims, defenses, or
counterclaims which Tenant may have against any prior Landlord (other than
claims of a continuing nature, or any abatement of Rents or any credit or
offset against such Rents required to be given to Tenant pursuant to any
express provision of this Lease); and
-14-
<PAGE>
19.3 Upon the request of a party (in this Section 19.3, the
"Requesting Party") from time to time, the other party (the "Certifying Party")
shall, within ten (10) days of receipt of said notice or request deliver to the
Requesting Party a written statement (each such, an "Estoppel Certificate")
certifying that: (a) there are no agreements other than the Lease (and no
amendments, modifications, extensions, or other revisions of the Lease) in
effect between Tenant and Landlord (or any other Person) with respect to the
Premises (b) to the best of the Certifying Party's knowledge, such party has no
setoff, claim, demand or cause of action against the Requesting Party; (c) to
the best of the Certifying Party's knowledge, the Requesting Party is not in
default in the performance of any of its obligations under the Lease; and the
Certifying Party has not given any notice of default to the Requesting Party;
and (d) that the Certifying Party's SIC number or classification has not
changed. In each Estoppel Certificate the certifying Party shall certify, also,
the amount of Fixed Rent then payable under the Lease, the amounts (and
elements) of Additional Rent then payable, and the dates to which Tenant has
paid the same. The representations required in (a)-(d) above shall be modified
to reflect the true facts at the time given.
19.4 If the holder of any Senior Encumbrance requests reasonable
modifications in this Lease as a condition to approval of any financing or
refinancing of the Land and/or the Building, Tenant will not unreasonably
withhold or delay making any requested modifications which do not increase Fixed
Rent or Additional Rent, shorten or extend the Term or otherwise adversely
affect Tenant's other rights, benefits and obligations under this Lease.
19.5 Except for the first month's Fixed Rent, Tenant will pay no
Rent under this Lease more than thirty (30) days in advance of its due date.
19.6 Tenant will not exercise any right to terminate this Lease
based upon any alleged act or omission of Landlord unless Tenant first gives
written notice of such act or omission to Landlord and to the holder of each
Senior Encumbrance and until a reasonable period of time for such holder of the
Senior Encumbrance to remedy such act or omission elapses after the giving of
such notice (during which time such holder shall have the right, but no
obligation, to remedy the alleged act or omission). Tenant agrees, further, not
to exercise any such right if the holder of any such Senior Encumbrance
commences to cure such act or omission within a reasonable time after such
notice and diligently continues to prosecute such cure to completion.
19.7 Landlord shall use commercially reasonable efforts to obtain
from the holder of any Senior Encumbrance for the benefit of Tenant a
"non-disturbance" agreement in commercially reasonable form. Landlord shall have
no liability to Tenant if Tenant shall not receive a non-disturbance agreement,
nor shall the same relieve or release Tenant from any of the obligations of
Tenant under this Lease.
ARTICLE 20. Inability to Perform.
20.1 Except as set forth in this Lease, this Lease and Tenant's
obligations to pay Rent and perform all of Tenant's other covenants, agreements,
terms, provisions and conditions hereunder shall not be affected, impaired or
excused because Landlord is unable to fulfill any of Landlord's obligations or
is unable to furnish or is delayed in furnishing any work or service whatsoever
expressly or impliedly to be furnished, or is unable to make or is delayed in
making any repairs. Landlord anticipates that the Office Premises shall be
legally available to Tenant for occupancy on February 15, 1998. If Landlord
cannot deliver the Office Premises legally available for occupancy by March 1,
1998, Tenant may terminate this Lease upon not less then five (5) days prior
written notice to Landlord.
20.2 Unless otherwise provided specifically to the contrary, this
Lease shall not be terminated because Tenant is unable to fulfill any of
Tenant's non-monetary obligations or is unable to make or is delayed from so
doing by reason of any cause beyond Tenant's reasonable control (including,
without limitation, strikes, governmental preemption in connection with a
-15-
<PAGE>
national emergency, Legal Requirements, failure of utilities or public services,
or severe weather).
ARTICLE 21. Surrender of Premises.
21.1 Upon the expiration of the Term or any earlier termination of
this Lease, Tenant shall quit and surrender to Landlord the Premises, broom
clean, in the condition required under this Lease, excepting ordinary wear and
tear and Damage. This Section shall survive the expiration of the Term or any
earlier termination of this Lease.
21.2 If Tenant remains in possession of the Premises after the
expiration or termination of this Lease, the parties recognize and agree that
the damage to Landlord will be substantial, will exceed the amount of monthly
Fixed Rent and Additional Rent theretofore payable hereunder and will be
impossible to measure accurately. Tenant, therefore, at the option of Landlord,
shall be deemed to be occupying the Premises as a tenant from month to month, at
a monthly rental payable in advance, equal to 150% of the Fixed Rent and
Additional Rent payable during the last month of the Term, subject to all of the
other terms of this Lease insofar as the same are applicable to a month-to-month
tenancy. Nothing herein contained shall be deemed to permit Tenant to remain in
possession of the Premises after the expiration or sooner termination of the
term of this Lease.
ARTICLE 22. Assignment, Mortgaging, Subletting, etc.
22.1 Except as otherwise expressly provided in this Article, Tenant
shall not, without obtaining the prior written consent of Landlord, in each
instance:
(a) assign or otherwise transfer this Lease, or any part of Tenant's
right, title or interest therein;
(b) sublet all or any part of the Premises or allow all or any part
of the Premises to be used or occupied by any other Persons; or
(c) mortgage, pledge or otherwise encumber this Lease, Tenant's
leasehold or the Premises.
For purposes of this Article the transfer of more than forty-nine per cent (49%)
of any class of capital stock of Tenant (if Tenant is a corporation), or the
transfer of more than forty-nine per cent (49%) of the total interests in Tenant
(if Tenant is a partnership, trust or other incorporated entity), however
accomplished, whether in a single transaction or in a series of related or
unrelated transactions, shall be deemed an assignment of this Lease; and an
agreement by any other Person, directly or indirectly, to assume Tenant's
obligations under this Lease shall be deemed an assignment. Tenant agrees to
furnish to Landlord upon demand at any time such information and assurances as
Landlord may reasonably request that neither Tenant, nor any previously
permitted subtenant, has violated the provisions of this Article.
22.2 Section 22.1 shall not apply to transactions entered into by
Tenant with a corporation into (or with) which Tenant is merged or consolidated
or to which substantially all of Tenant's assets are transferred or to any
corporation which shall be an affiliate, subsidiary or parent of Tenant,
provided that:
(a) such merger, consolidation, or transfer of assets is for a good
business purpose and not a device for the transfer of Tenant's interest in
this Lease; and
(b) the affiliate, subsidiary, parent, assignee or successor entity
has a net worth at least equal to or in excess of the net worth of Tenant
immediately prior to such merger, consolidation, or transfer, or as of the
date of this Lease, whichever is greater, as
-16-
<PAGE>
evidenced by financial statements prepared and certified by Independent
certified public accountants.
For the purpose of this Section 22.2 a "subsidiary" or "affiliate" of Tenant
shall mean the following:
(a) An "affiliate" shall mean any corporation which, directly or
indirectly, controls or is controlled by or is under common control with
Tenant.
(b) A "subsidiary" shall mean any corporation all of whose ownership
interests shall, at the time, be owned directly or indirectly by Tenant.
22.3 Any assignment made pursuant to Section 22.2, Tenant (or its
successor) shall have delivered to Landlord financial statements certified by
Tenant's accountant evidencing satisfaction of the net worth requirement in
Section 22.2(b).
22.4 Tenant covenants that, notwithstanding any assignment or
transfer, Tenant shall remain fully and jointly and severally liable for the
payment of all Rents due and to become due under this Lease and for the
performance and observance of all of the covenants, agreements, terms,
provisions and conditions of this Lease on the part of Tenant to be performed or
observed. After any assignment, subletting, or other transfer permitted under
Sections 22.1 or 22.2, Tenant's liabilities and obligations under this Lease
shall not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the Term, or modifying any obligations
contained in this Lease, or by any waiver or failure of Landlord to enforce any
of Tenant's obligations under this Lease, but Tenant shall not be liable for any
increase in obligations or term without the separate agreement of Tenant.
22.5 If Tenant agrees to assign this Lease or to sublet fifty
percent (50%) or more of the usable area of the Premises, Tenant shall, prior to
the effective date thereof (the "Effective Date") deliver to Landlord executed
counterparts of any such agreement and of all ancillary agreements with the
proposed assignee or subtenant, as applicable. Landlord shall then have the
right to terminate this Lease on the Effective Date of such assignment or
sublease as if it were the Expiration Date, such right to be exercised by
written notice to Tenant given within thirty (30) days of the date Landlord
receives executed counterparts of any sublease or assignment. If Landlord
exercises its option under this Section 22.5, Landlord may then lease the
Premises or any portion thereof to Tenant's proposed assignee or subtenant, as
the case may be, without any liability whatsoever to Tenant.
22.6 If Section 22.5 is inapplicable or, if Section 22.5 is
applicable and Landlord does not elect to terminate this Lease (in whole or in
part) under Section 22.5, Landlord shall not unreasonably withhold or delay its
consent to an assignment of this Lease, or a subletting of the whole or a part
of the Premises provided:
(a) Tenant shall give Landlord the name and business address of the
proposed subtenant or assignee, adequate information with respect to the
nature and character of the proposed subtenant's or assignee's business,
references and current financial information as are reasonably
satisfactory to Landlord, and an executed counterpart of the sublease or
assignment agreement, all of which shall be reasonably satisfactory to
Landlord;
(b) the proposed subtenant or assignee must be a reputable party
whose financial net worth, credit and financial responsibility are,
considering the obligations under this Lease, reasonably satisfactory to
Landlord;
(c) the nature and character of the proposed subtenant or assignee
and its intended use of the Premises are in keeping with the standards of
the Property and do not pose an environmental risk to the Property;
-17-
<PAGE>
(d) the proposed subtenant or assignee is not then an occupant and
vacating any part of the Building or another building in the Project or a
Person who dealt with Landlord or the Managing Agent (directly or through
a broker) with respect to space in the Building or another building in the
Corporate Park during the six (6) months immediately preceding Tenant's
request for Landlord's consent;
(e) Tenant shall bear all costs of providing appropriate means of
ingress and egress from the sublet space (or of demising the space to be
subleased from the remainder of the Premises);
(f) Tenant shall have paid Landlord all reasonable Fees-And-Costs
incurred by Landlord in connection with the proposed transaction;
(g) the proposed subtenant or assignee is not (w) a bank or trust
company branch office, safe deposit business, savings and loan association
or loan company; (x) employment or recruitment agency (y) school, college,
university or educational institution whether or not for profit; or (z) a
Government Entity, or government of any other sovereign nation (or any
branch or division thereof);
(h) in the case of a subletting of a portion of the Premises, the
portion so sublet shall be regular in shape and suitable for normal
renting purposes; and
(i) there shall be no more than one (1) subtenant of the Premises at
any time.
22.7 If Landlord has not elected to terminate this Lease (in whole
or in part) under Section 22.5 or, if Landlord consents to or is deemed to have
consented to any assignment or sublease, Tenant shall pay Landlord, as
Additional Rent:
(a) in the case of each and every assignment, an amount equal to
fifty percent (50%) of all sums and other considerations whatsoever paid
to Tenant by the assignee for (or by reason of) such assignment (including
any sums paid for the sale of Tenant's fixtures, leasehold improvements
made at Tenant's expense, equipment, furniture, furnishings or other
personal property which are in excess of the fair market value thereof)
after first deducting the reasonable costs incurred by Tenant in
connection with such assignment for legal fees and disbursements,
brokerage commissions, accounting fees and advertising costs; and
(b) in the case of each and every sublease fifty percent (50%) of
all rents, additional charges or other consideration whatsoever payable to
Tenant by the subtenant which exceed all Rents under this Lease accruing
during the term of the sublease in respect of the subleased space
(allocated in proportion to the space demised, as reasonably computed by
the Managing Agent) pursuant to the terms hereof (including, any sums paid
for the sale or rental of Tenant's fixtures, leasehold improvements made
at Tenant's expense, equipment, furniture or furnishings or other personal
property which are in excess of the fair market value thereof) after first
deducting the reasonable costs incurred by Tenant in connection with such
subletting for any legal fees and disbursements, brokerage commissions,
accounting fees, advertising costs, reasonable costs of constructing
demising walls in connection with any subletting.
Tenant shall pay Landlord all amounts due under this Section 22.7 as and when
paid by the assignee or subtenant to Tenant. The provisions of this Section 22.7
shall not be applicable to any subletting or assignment made pursuant to Section
22.2.
22.8 As a condition precedent to Tenant's assignment of the Lease or
its sublet of all or part of the Premises, Tenant, at its sole cost and expense,
shall have received from the Bureau, if required, either a non-qualified
approval of Tenant's negative declaration, or a non-applicability letter, for
which Tenant shall promptly apply pursuant to ISRA. No assignment or
-18-
<PAGE>
sublease shall become effective, whether or not Landlord may have previously
afforded its consent, if the terms of this Section 22.8 are not satisfied.
ARTICLE 23. Quiet Enjoyment.
23.1 Upon paying all Fixed Rent and Additional Rent and keeping and
performing the terms, covenants, conditions and provisions of this Lease, Tenant
may lawfully and quietly hold and enjoy the Premises during the Term without
hindrance, ejection, molestation, or interruption, subject, however, to the
terms, covenants, conditions, and provisions of this Lease.
23.2 Nothing in this Section shall prevent Landlord from performing
alterations or repairs on other portions of the Building not leased to Tenant,
nor shall performance of such alterations or repairs be construed as a breach of
this covenant by Landlord. There shall be no allowance to Tenant for a
diminution of rental value (and no liability on the part of Landlord) by reason
of inconvenience, annoyance or injury to business arising from the making of any
maintenance, repairs or Alterations by Landlord, Tenant, or any other Person in
or to the Premises or the Property. Landlord shall exercise reasonable diligence
to minimize interference with Tenant's business operations, but shall not be
required to perform any maintenance, repairs, Restoration or Alterations on an
overtime or premium pay basis.
ARTICLE 24. Real Estate Brokers.
24.1 Each party hereby represents and warrants to the other party
that it has had no dealings with any real estate broker or sales agent in
connection with the negotiation and execution of this Lease other than the
Broker named in Article 1 hereof.
24.2 Each party agrees to indemnify and hold the other party
harmless from and against the breach, by the indemnifying party, of the
representations and warranties made pursuant to Section 24.1. Each party's
indemnity shall cover all commissions, fees and expenses claimed by a real
estate broker or sales agent other than the Broker and all expenses which the
other party incurs to defend against any such claim, including all
Fees-And-Costs.
24.3 Landlord agrees to pay the Broker specified in Article 1 any
commissions due in connection with the execution and delivery of this Lease to
which it may be entitled pursuant to a separate written agreement.
ARTICLE 25. Adjacent Excavation; Shoring.
25.1 If excavation, foundation, other substructure work, or other
construction work shall be made or authorized upon land adjacent to the
Premises, Tenant shall afford to the Person causing (or authorized to cause)
such excavation, license to enter the Premises to do such work as necessary to
preserve the walls of the Building from injury or damage, and to support the
same by proper foundations, without any claim for damages or indemnity against
Landlord, or diminution or abatement of Rents.
ARTICLE 26. Defaults; Conditional Limitations; Remedies.
26.1 Each of the following events shall be a "Default" under this
Lease:
(a) Tenant fails to pay any amount of Fixed Rent, when the same
shall be due, and such failure shall continue for five (5) days after
written notice from Landlord to Tenant;
-19-
<PAGE>
(b) Tenant fails to pay any amount of Additional Rent when the same
shall be due, and such failure shall continue for five (5) days after
written notice from Landlord to Tenant;
(c) Tenant fails to keep or perform any other covenant or provision
of this Lease, and such failure continues for fifteen (15)days after
written notice from Landlord, unless such failure requires work to be
performed, acts to be done, or conditions to be remedied which cannot be
performed, done or remedied within such fifteen (15) days, in which case
the Default shall not be deemed to exist as long as Tenant duly commences
and diligently and continuously prosecutes completion all steps necessary
to cure and remedy the same;
(d) Tenant admits, in writing, that Tenant is unable to pay Tenant's
debts as such become due;
(e) Tenant makes an assignment for the benefit of creditors;
(f) Tenant files a voluntary petition in bankruptcy or Tenant files
any petition or answer seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under any present or future Legal Requirements, or Tenant seeks or
consents to or acquiesces in or suffers the appointment of any trustee,
receiver or liquidator of Tenant or of the Premises (or, Tenant's interest
therein) or of all or any substantial part of Tenant's property;
(g) if, within thirty (30) days after the commencement of any
proceeding against Tenant seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief
under any present or future Legal Requirements, such proceeding is not
dismissed; or if, within sixty (60) days after the appointment (without
the consent or acquiescence of Tenant) of any trustee, receiver or
liquidator of Tenant or of all or any substantial part of Tenant's
property or of the Premises (or Tenant's interest therein), such
appointment is not vacated or stayed on appeal or otherwise; or
(h) Tenant shall abandon the Premises or fail to take occupancy of
the Premises within sixty (60) days of the Commencement Date (or with
respect to the Warehouse Premises, the Warehouse Premises Commencement
Date).
26.2 If and whenever any Default occurs, at Landlord's option,
Landlord may give written notice to Tenant (the "Termination Notice") stating
that this Lease and the Term shall expire and terminate on the date specified in
such Termination Notice (which date shall be not earlier than five (5) days
after the giving of the Termination Notice). In such event, this Lease and the
Term (and Tenant's entire right, title, and interest therein) shall expire and
terminate as if the date specified in the Termination Notice were the Expiration
Date; and Tenant shall quit and surrender the Premises but shall remain liable
as hereinafter provided.
26.3 If and whenever any Default occurs, or if this Lease and the
Term terminate under Section 26.2, or otherwise, Landlord may without notice
re-enter and repossess the Premises; and Tenant shall remain liable as
hereinafter provided. If Landlord so re-enters, at its option, Landlord may:
(a) complete Landlord's Work to the extent not then completed;
(b) repair and alter the Premises in such manner as Landlord may
deem necessary or desirable without relieving Tenant of any liability
whatsoever under this Lease; and/or
(c) let or relet the Premises (or any parts thereof) for the whole
or any part of the remainder of the Term, or for a longer period, in
Landlord's name or as agent of Tenant, and pay and apply all rents and
other sums thus collected or received as follows:
-20-
<PAGE>
(i) first, to all reasonable costs and expenses which Landlord
pays or incurs in terminating this Lease, re-entering, retaking,
repossessing, repairing and/or altering the Premises, and removing
all Persons and property therefrom, including all Fees-And-Costs;
(ii) second, to all reasonable costs and expenses which
Landlord incurs in securing any new tenant of the Premises
(including in such costs brokerage commissions and reasonable
expenses of preparing the Premises for re-letting, and all
Fees-And-Costs; and, if Landlord maintains the Premises, all costs
and expenses of maintaining the Premises, including utilities) and
(iii) third, any balance then remaining on account of Tenant's
liability to Landlord.
In no case shall re-entry by Landlord, whether under summary proceedings or
otherwise, absolve or discharge Tenant from any liability whatsoever under this
Lease. Except as specifically provided in the next sentence, Landlord's failure
to relet or to collect Rent from a reletting shall not relieve Tenant of any
liability whatsoever under this Lease. Notwithstanding anything to the contrary
contained herein, Landlord agrees to take commercially reasonable actions to
relet the Premises on terms which are reasonably satisfactory to Landlord;
provided that Tenant first surrenders the Premises to Landlord and waives in
writing any right to redeem its interest in the Premises and any right to
re-enter the Premises.
26.4 If this Lease and the Term terminate under Section 26.2, or if
Landlord re-enters the Premises under Section 26.3 or by any summary proceeding
or other Legal Proceeding, then, in any of such events, Tenant shall pay to
Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be, represents
the then value of the excess, if any, of (x) the aggregate amount of Fixed
Rent and Additional Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Rent to be the same
as was payable for the year, or if less than 365 days have then elapsed
since the Commencement Date, the partial year, immediately preceding such
termination or reentry) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the case
may be, and ending with the date that would have been the Expiration Date
if this Lease had not so terminated or if Landlord had not so reentered
the Premises, less (y) the aggregate rental value of the Premises for the
same period, both discounted to their present value at the rate of six
percent (6%) per annum, or
(b) sums equal to the Fixed Rent and Additional Rent which would
have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Premises, payable upon the due dates
therefor (as provided in this Lease) following such termination or such
re-entry until the date that would have been the Expiration Date if this
Lease had not so terminated or if Landlord had not so re-entered the
Premises, less rents collected and applied to Tenant's liability pursuant
to Paragraph 26.3(c)iii.
Landlord may bring Legal Proceedings from time to time, at Landlord's election,
for the recovery of damages, or for a sum equal to any installment or
installments of Fixed Rent or Additional Rent or any liquidated damages or other
sum payable by Tenant to Landlord pursuant to this Article and nothing in this
Lease shall require Landlord to await the originally scheduled Expiration Date
for any such purpose. Nothing herein contained shall be construed to limit or
preclude recovery by Landlord against Tenant of any sums, damages or claims to
indemnification which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default of Tenant hereunder.
26.5 Nothing in this Lease shall limit or prejudice Landlord's right
to prove and obtain as liquidated damages in any bankruptcy, insolvency,
receivership, reorganization or
-21-
<PAGE>
dissolution proceeding an amount equal to the maximum allowed by any applicable
Legal Requirements at the time when such damages are to be proved, whether such
amount is greater, equal to, or less than, the amount of damages otherwise
specified in this Article. Tenant's interest in the Lease shall not pass to any
trustee, receiver, assignee for the benefit of creditors, or any other person or
entity, or otherwise by operation of law under the laws of the State unless the
Landlord consents in writing to such transfer.
26.6 No receipt of moneys by Landlord from Tenant after a
termination of this Lease, shall reinstate, continue or extend the Term or
affect any Termination Notice or other written notice previously given to
Tenant, or operate as a waiver of Landlord's right to enforce payment of Fixed
Rent or Additional Rent then or subsequently becoming due, or operate as a
waiver of Landlord's right to recover possession of the Premises. If Tenant is
in arrears in the payment of Fixed Rent or Additional Rent, Tenant waives its
right, if any, to designate the item against which any payments made by Tenant
are to be credited and Tenant agrees that Landlord may apply any payment made by
Tenant to any items as Landlord may see fit, irrespective of and notwithstanding
any designation or request by Tenant as to the items against which any such
payment shall be credited.
26.7 In the event Tenant is dispossessed by judgment or warrant of
any court, or in the event of re-entry or repossession by Landlord or in the
event of expiration or any termination of this Lease, Tenant (on behalf of
Tenant and all Persons claiming by, through, or under Tenant) hereby expressly
waives service of any notice of intention to re-enter now or hereafter provided
by law, or of commencement of Legal Proceedings for such purpose; any and all
right of redemption now or hereafter provided by law and any reentry or
repossession or right to Restore the Term or legal continuance of this Lease.
26.8 Landlord and Tenant hereby waive trial by jury in any Legal
Proceeding brought by either against the other with respect to any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant or Tenant's use or occupancy of the Premises
(other than any suit for personal injury). If Landlord commences any summary
proceeding or other Legal Proceeding for nonpayment of Rents, Tenant will not
interpose and does hereby waive the right to interpose any counterclaim of
whatever nature or description in any such proceeding (unless Tenant's failure
to interpose such counterclaim shall waive its right to assert the same cause of
action in a separate action or proceeding).
26.9 In the event of any Default, or any threatened breach by a
party of any term, covenant, condition or provision of this Lease, the other
party shall be entitled to enjoin such Default or threatened breach.
26.10 Each right and remedy of a party in this Lease shall be
cumulative and in addition to every other right or remedy of such party in this
Lease, or now or hereafter existing at law or in equity; and the exercise (or
beginning of exercise) by a party of any one or more rights or remedies shall
not preclude the simultaneous or later exercise by such party of any and all
other rights or remedies of such party in this Lease, or now or hereafter
existing at law or in equity.
ARTICLE 27. Indemnification.
27.1 Subject to all other provisions of this Lease (including, but
not limited to, Article 13 hereof), Tenant hereby agrees, to the fullest extent
permitted by law, to indemnify Landlord and Landlord's Affiliates and hold
Landlord and/or Landlord's Affiliates harmless from and against (and to pay the
full amount of) all loss, liability, obligation, damage, penalty, tax, cost,
claim, demand, judgment, charge, or expense of every kind whatsoever (other than
consequential damages) which Landlord and/or Landlord's Affiliates may suffer,
incur, or pay out, or which may be asserted against Landlord and/ or Landlord's
Affiliates in whole or in part, by reason of, or in connection with:
-22-
<PAGE>
(a) any Legal Proceeding by Landlord to terminate the Lease, or any
other Legal Proceeding by Landlord against Tenant, in which Landlord
secures a judgment against Tenant, final beyond appeal;
(b) any Default by Tenant in the observance or performance of any
obligation under the Lease (including matters involving the payment of
Rent and Additional Rent);
(c) any bodily injury, sickness, disease or death of or to any
Person, or any Damage to or of the Premises or the Property (or to
property of any other Person), resulting from any acts or omissions of
Tenant, or Tenant's Affiliates; and
(d) any failure of Tenant to comply with Legal Requirements or
Insurance Requirements (as required under this Lease).
Subject to all other provisions of this Lease (including, but not limited to,
Article 13 hereof), Landlord hereby agrees, to the fullest extent permitted by
law, to indemnify Tenant and/or Tenant's Affiliates and hold Tenant and/or
Tenant's Affiliates harmless from and against (and to pay the full amount of)
all loss, liability, obligation, damage, penalty, tax, cost, claim, demand,
judgment, charge, or expense of every kind whatsoever (other than consequential
damages) which Tenant and/or Tenant's Affiliates may suffer, incur, or pay out,
or which may be asserted against Tenant and/or Tenant's Affiliates, In whole or
in part, by reason of, or in connection with;
(aa) any Legal Proceeding by Tenant to terminate the Lease, or any
other Legal Proceeding by Tenant against Landlord, in which Tenant secures
a judgment against Landlord, final beyond appeal;
(bb) any default by Landlord in the observance or performance of any
obligation under the Lease;
(cc) any bodily injury, sickness, disease or death of or to any
Person, or any Damage to the Premises or the Property (or to property of
any other Person), resulting from any acts or omissions of Landlord or
Landlord's Affiliates;
(dd) any failure of Landlord to comply with Legal Requirements or
Insurance Requirements (as required under this Lease).
Any reference in Sections 27.2, 27.3 and 27.4 to "the indemnifying party" shall
mean the party required to indemnify and hold harmless the Persons entitled to
indemnification under this Section 27.1; any reference in Sections 27.2, 27.3
and 27.4 to "the indemnified Persons" shall mean the Persons entitled to be
indemnified and held harmless under this Section 27.1, as the context requires.
27.2 The indemnifying party shall defend any and all Legal
Proceedings commenced against the indemnified Persons by any Person concerning
any matter covered by any indemnity or obligation under Section 27.1. In such
event, the indemnifying party shall expeditiously deliver to the indemnified
Persons copies of documents served in any Legal Proceeding and, whenever
requested by the indemnified Persons, shall advise as to the status of such
Legal Proceeding. If the indemnifying party fails to defend diligently any such
Legal Proceeding, or if the indemnified Persons elect to defend by written
notice to the indemnifying party at any time, the indemnified Persons shall have
the right (but no obligation) to defend the same at such indemnifying party's
expense. The indemnifying party shall not settle any such Legal Proceeding
without the indemnified Persons prior written consent, which consent shall not
be unreasonably withheld or delayed.
27.3 The indemnities and obligations set forth in Sections 27.1 and
27.2 shall cover and include all reasonable Fees-And-Costs incurred by an
indemnified Person in connection with any and every matter and amount referred
to in Sections 27.1 and 27.2. The
-23-
<PAGE>
indemnifying party shall pay all such Fees-And-Costs to an indemnified Person
fifteen (15) days after demand.
27.4 The indemnifying party shall notify each indemnified Person
promptly of every Legal Proceeding or claim which may or might be covered by any
indemnity under this Article 27 and/or by any Required Insurance. The
indemnifying party shall also give timely notice of such Legal Proceedings and
claims to each insurer which has issued an applicable policy of Required
Insurance; and any insured claim for which an indemnifying party may be
responsible may be defended by such party's insurance carrier.
ARTICLE 28. Consents and Approvals.
28.1 Landlord shall consider each request by Tenant for Landlord's
consent or approval in good faith. Notwithstanding anything to the contrary
contained in this Lease, if any provision of this Lease expressly or impliedly
obligates Landlord not to unreasonably withhold its consent or approval, an
action for declaratory judgment or specific performance will be Tenant's sole
right and remedy in any dispute as to whether Landlord has breached such
obligation, except that if Tenant shall demand and obtain in such proceeding a
judgment concluding that Landlord withheld or delayed any such consent in bad
faith or in an arbitrary or capricious manner, Tenant shall be entitled to money
damages (including reasonable attorney's fees) to compensate Tenant for
Landlord's unreasonable withholding or delay of such consent.
ARTICLE 29. Notices.
29.1 All notices, requests, demands, elections, consents, approvals
and other communications hereunder must be in writing (each such, a "notice")
and addressed as follows (or to any other address which either party may
designate by notice):
If to Landlord: With a copy to:
Trafalgar House Real Estate Morgan, Lewis & Bockius LLP
a division of Trafalgar House 101 Park Avenue
Property, Inc. New York, New York 10178
c/o Jones Lang Wootton Attention: Mario J. Suarez, Esq.
One Battery Park Place
New York, New York 10004
Attention: Ms. Ronnie Ragoff
If to Tenant:
before the Commencement Date after the Commencement Date
to: to:
NEXMED (USA), INC. NEXMED (USA), INC.
6087 Triangle Drive 6087 Triangle Drive
Commerce, CA 90040 Commerce, CA 90040
Attention: Mr. Y. Joseph Mo Attention: Mr. Y. Joseph Mo
-24-
<PAGE>
with a copy to: with a copy to:
Drinker Biddle & Reath Drinker Biddle & Reath
105 College Road East 105 College Road East
Box 627 Box 627
Princeton, NJ 08542 Princeton, NJ 08542
Attention: Richard S. Goldman, Esq. Attention: Richard S. Goldman, Esq.
Any notice required or desired to be given under this Lease by either party to
the other shall be deemed to have been duly given only if delivered by hand,
evidenced by written receipt, or mailed by either first class, registered mail,
return receipt requested, postage and fees prepaid or overnight delivery
service, evidenced by written receipt. A notice sent by registered mail shall be
deemed given as of the receipt date indicated on the return receipt. All other
notices shall be deemed given when received.
ARTICLE 30. No Waivers.
30.1 No agreement to accept a surrender of this Lease shall be valid
unless in writing signed by Landlord. The delivery of keys to any agent of
Landlord shall not operate as a termination of this Lease or a surrender of the
Premises. The failure of either party to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this Lease
shall not prevent a subsequent act, which would have originally constituted a
violation, from having all the force and affect of an original violation.
30.2 This Lease contains the entire agreement between the parties,
and any executory agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment of it in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
ARTICLE 31. No Representations by Landlord; Landlord's Interest;
Transferee Landlords.
31.1 Neither Landlord, Landlord's Affiliates nor Landlord's agents
have made any representations or promises with respect to the Property or the
Premises except as expressly set forth in this Lease.
31.2 Tenant agrees to look solely to Landlord's interest in the
Property for the satisfaction of any right or remedy of Tenant for the
collection of a judgment (or other judicial process) requiring the payment of
money by Landlord or Landlord's Affiliates, in the event of any liability by
Landlord, and no other property or assets of Landlord or of Landlord's
Affiliates shall be subject to levy, execution, attachment, or other enforcement
procedure for the satisfaction of Tenant's remedies under or with respect to
this Lease, the relationship of Landlord and Tenant hereunder, or Tenant's use
and occupancy of the Premises, or any other liability of Landlord or Landlord's
Affiliates to Tenant.
31.3 Nothing contained in this Lease shall be deemed in any way to
limit, restrict or otherwise affect Landlord's absolute right at any time or
times to convey its interest in and to the Property, subject at all times to
this Lease, or to assign its interest in this Lease, or to assign from time to
time the whole or any portion of Fixed Rent or Additional Rent at any time paid
or payable hereunder by Tenant to Landlord, to a lender, lessor or other
transferee designated by Landlord in a notice to Tenant, and in any such case
Tenant shall pay Fixed Rent and Additional Rent payable by Tenant to Landlord,
or the portion thereof so assigned, subject to the provisions of this Lease, to
Landlord's designee at the address mentioned in any such notice.
-25-
<PAGE>
31.4 In the event of any transfer of title to the Property, or in
the event of a lease of the Property, the transferor Landlord shall be and
hereby is entirely freed and relieved of all covenants, obligations and
liabilities of Landlord hereunder to be performed after the date of such
transfer or lease of the Property, as the case may be (provided, however, that
Landlord shall remain liable for all obligations of Landlord which occurred
prior to the transfer or lease of the Property) and it shall be deemed and
construed as a covenant running with the land without further agreement between
the parties or their successors in interest, or between the parties and the
transferee of title to the Property or said lease, or the said lessee of the
Property that the transferee or the lessee, as applicable, has assumed and
agreed to carry out any and all such covenants, obligations and liabilities of
Landlord hereunder as of the date of such transfer or lease of the Property, as
the case may be.
ARTICLE 32. Signage; Name of Building; Waiver of Zoning Rights.
32.1 Tenant shall have the right to place one (1) identifying sign
on the pylon sign monument on the Property together with other tenants of the
Corporate Park and one (1) sign on the entrance door to the Premises. The size,
type, graphic layout and color of each such sign shall be subject to the written
approval of Landlord, and shall conform to the signage criteria of the Corporate
Park. Tenant shall not affix or display any other sign, advertisement or notice
of any prior nature visible from the exterior of the Premises without the prior
written consent of Landlord.
32.2 Landlord shall provide Tenant with (i) twenty four (24) spaces
for automobile parking in the Building's parking area for use by Tenant and its
employees as of the Commencement Date and (ii) an additional twenty four (24)
spaces as of the Warehouse Premises Commencement Date. Tenant's use of the
parking facilities shall be subject to all of Landlord's uniform regulations
with respect to parking and to Tenant's compliance with any variance or other
governmental permission applicable with respect to such parking.
32.3 Landlord shall have the right at any time to change the
designated address of the Building, providing such change in the designated
address of the Building is required due to necessary business reasons. The
Building may be named by Landlord after any Person whether or not such name is,
or resembles, the name of a tenant of the Building.
32.4 Tenant hereby quitclaims, releases, transfers and assigns to
Landlord any interest of any kind in any zoning or development rights with
respect to the Land and/or the Property which Tenant might acquire by reason of
this Lease.
ARTICLE 33. Memorandum of Lease; No Recording.
33.1 At Landlord's request, the parties shall execute and deliver a
memorandum of lease in form and substance satisfactory to Landlord, which
supplementary memorandum shall set forth the Commencement Date as determined;
said memorandum of this Lease shall not be deemed to modify or to change any of
the provisions of this Lease.
33.2 This Lease shall not be recorded by Tenant and any attempted or
actual recording shall be a Default hereunder.
ARTICLE 34. Security Deposit.
34.1 Tenant has deposited with Landlord upon the execution of this
Lease the Security Deposit set forth in Article 1 to secure Tenant's obligations
under this Lease. Landlord shall have the right, to apply all or any part of the
Security Deposit to cure any Default of Tenant under this Lease, notwithstanding
the exercise of any other remedy by Landlord. In such event,
-26-
<PAGE>
upon Landlord's demand, Tenant shall deposit with Landlord an amount equal to
the portion of the Security Deposit so applied in order that Landlord may hold
the full amount of the Security Deposit at all times during the Term.
34.2 Landlord shall invest the Security Deposit in a non interest
bearing Bank Account chosen by Landlord. In this Lease "Bank Account", means an
account in any state or national bank, trust company, savings bank, and/or
savings and loan association. Landlord shall have no responsibility for the rate
or amount of any interest earned on the Security Deposit or for the preservation
of the principal of the Security Deposit.
34.3 If there exists no uncured Default under the terms of this
Lease, the Security Deposit shall be returned to Tenant, together with all
interest accrued thereon, within thirty (30) days after the termination of this
Lease and delivery of exclusive possession of the Premises to Landlord.
ARTICLE 35. Miscellaneous.
35.1 This Lease shall be governed by and construed in accordance
with the laws of the State of New Jersey.
35.2 Any interest payable by a party under this Lease shall be at
the Interest Rate, unless otherwise provided.
35.3 Schedule A and Exhibits "A" through "D" (and all accompanying
schedules and appendices) to this Lease are incorporated in this Lease by
reference.
35.4 The terms, covenants, conditions, and provisions of this Lease
shall bind and inure to the benefit of Landlord and Tenant and their permitted
legal representatives, successors, and assigns.
35.5 The unenforceability, invalidity, or illegality of any
provision herein shall not render any other provision herein unenforceable,
invalid, or illegal.
35.6 Wherever used in this Lease the words "include, or "including"
shall be construed as incorporating "but not limited to" or "without
limitation"; the phrase "at Tenant's expense, or 'at Landlord's expense" means
at the sole and exclusive expense Of the respective party.
35.7 Wherever this Lease imposes any obligation upon Tenant or
Landlord, or provides that Tenant or Landlord shall be responsible for any
action or matter, the Lease shall be construed to mean that such party shall
perform or undertake the matter at such party's expense.
35.8 The captions of this document are for the convenience of the
parties only and neither limit nor amplify the provisions of this Lease.
35.9 Each party represents and warrants to the other that the
execution, delivery and performance of this Lease has been duly authorized by
all necessary corporate or partnership action.
ARTICLE 36. Right of First Refusal
36.1 For so long as this Lease shall be in effect, and provided
Tenant is not then in default of any of the terms, covenants and conditions on
its part to be performed or observed under this Lease, Tenant shall have a right
of first refusal on the terms hereinafter described, with respect to a proposed
sale of the Property by Landlord, subject however to all the provisions of this
Article. Tenant's right of first refusal under this Article 36, shall be
exercisable as follows:
-27-
<PAGE>
(a) If at any time during the Term of this Lease, Landlord, as "owner" of
the Property, is negotiating the basic business terms of a prospective
sale of the Property for cash, property or purchase money promissory
obligations to make cash payments in the future, (or any combination
thereof) (hereinafter referred to as the "Purchase Price"), Landlord shall
notify Tenant of such negotiations and shall offer to sell the property to
Tenant for the price and upon the same basic terms and conditions that
Landlord is prepared to sell the Property. Such offer shall be made by
executing and delivering to Tenant two counterpart originals of a contract
of sale (the "Contract") substantially in the form (with the exception of
purchase price and other basic business terms) of the form of Contract of
Sale annexed hereto as Exhibit "E". If Tenant elects to accept such offer,
it shall do so by executing and delivering to Landlord within five (5)
business days after receipt of the Contract, both counterpart originals of
the Contract and by paying to Landlord upon the execution and delivery of
the Contract, the downpayment specified therein. Time shall be of the
essence for the exercise of Tenant's election under this Article.
(b) If Tenant fails to accept Landlord's offer in the manner set forth
above, within such five (5) day period, Tenant shall promptly return the
Contract to Landlord and Landlord may sell the Property for the Purchaser
Price set forth n the Contract and on the same basic terms and conditions
set forth in the Contract and the provisions of this Article 36 shall be
of no further force or effect. If Tenant fails to accept Landlord's offer,
Tenant shall execute and deliver within five days of Landlord's request
thereof, a written confirmation that Tenant has elected not to exercise
its right of first refusal under this Article 36.
(c) If Tenant accepts Landlord's offer and thereafter defaults in the
purchase of the Property, in addition to any other rights and remedies
Landlord may have against Tenant pursuant to this Lease, the Contract or
by law, by reason of such default, Tenant shall forfeit the downpayment,
the provisions of this Article 36 shall be of no further force or effect
and Landlord shall thereafter be free to dispose of the Property without
complying with this Article 36.
(d) If Tenant fails to accept Landlord's offer and Landlord is thereafter
able to consummate the sale of the Property, the provisions this Article
shall no longer apply to the Property nor be of any further force or
effect.
(e) The provisions of this Article 36 shall not apply (i) to any Senior
Encumbrance or any conveyance, sale, transfer, assignment or other
transfer of the Property (or any part thereof) in connection with a
foreclosure or other enforcement thereof or deed in lieu of foreclosure
thereof, (ii) to any conveyance, sale, transfer or assignment to any of
Landlord's Affiliates, (iii) to a lease of the Property by Landlord, (iv)
to the sale, transfer, assignment or other transfer of one or more
beneficial, partnership or stock interests in Landlord, or (v) to a
conveyance by Landlord of the Property by operation of law.
(f) The right of first refusal pursuant to this Article 36 is personal to
NEXMED (USA), INC. and may not be transferred or assigned to any assignee
of this Lease or to any other party. The termination, cancellation, or
surrender of this Lease shall terminate any right of Tenant pursuant to
this Article.
-28-
<PAGE>
IN WITNESS WHEREOF, LANDLORD AND TENANT HAVE RESPECTIVELY EXECUTED
THIS LEASE AS OF THE DATE AND YEAR FIRST ABOVE WRITTEN.
WITNESS: TRAFALGAR HOUSE REAL ESTATE,
a division of Trafalgar House
Property, Inc.
/s/ [ILLEGIBLE] By: /s/ W.J.B. Davies
- ---------------------------- ---------------------------
Name: Name: W.J.B. Davies
Title: President
WITNESS: NEXMED (USA), INC.
/s/ [ILLEGIBLE] By: /s/ Y. Joseph Mo
- ---------------------------- ---------------------------
Name: Name: Y. Joseph Mo
Title: President & CEO
-29-
<PAGE>
Schedule A
The Land
All that certain plot, piece or parcel of land situate, lying and
being in the Township of Washington, Mercer County, New Jersey, commonly known
as Mercer Corporate Park and designated as Lot 31, Block 41 on the Tax Map of
Washington Township, consisting of 92.6 acres.
<PAGE>
Exhibit A
Floor Plan of Office Premises
[GRAPHIC OMITTED]
<PAGE>
Exhibit A-1
Floor Plan of Warehouse Premises
[GRAPHIC OMITTED]
<PAGE>
Exhibit B-1
Definitions
The following terms shall have the following meanings wherever used
in this Lease:
"Alteration" means any and every alteration, addition, construction
or improvement of or to the Premises, other than Decorations.
"Building Systems" means the plumbing, heating, ventilating, air
conditioning, mechanical and electrical systems, installations, and facilities
of the Building (exclusive of Tenant's supplemental, special or unique systems,
installations or facilities).
"City" means Robbinsville, Mercer County, New Jersey and/or any
other municipality having jurisdiction over the Property, and any successor
thereto.
"Condemnation" (or to "Condemn") means any and every taking
(temporary or permanent) for any public or quasi-public purpose, by any
Government Entity by exercise of condemnation or eminent domain (or any transfer
or conveyance by agreement in lieu thereof).
"Corporate Park" means all of the improved and unimproved real
property described in Schedule A together with any and all buildings, structures
and improvements now or hereafter constructed thereon and together with any
appurtenances thereto.
"Damage" means any and all damage or destruction resulting from
fire, flood or other casualty.
"Decorations" shall mean any and all floor coverings, objects of
art, wall and ceiling coverings, and other similar decorative items undertaken
or installed by Tenant in the Premises.
"Employee" means an officer, director or employee.
"Encumbrance" means any and every lease, security interest, charge,
covenant, restriction, lien, mortgage, or other encumbrance of any kind
whatsoever.
"Fees-And-Costs" means the reasonable fees, charges, disbursements
and expenses of attorneys, architects, engineers, expert witnesses, contractors,
consultants and other Persons.
"force majeure" means the occurrence of any event which is beyond
the reasonable control of Landlord or Tenant, as the case may be, including,
without limitation, the inability to obtain building permits or other approvals
from a Government Entity on a timely basis, unavailability of building
materials, strikes and labor disruptions, unusual weather conditions, Acts of
God, Acts of War, building moratoriums, sewer moratoriums, earthquake, flood or
other natural disaster.
"Government Entity" means the United States, the State, Mercer
County, the City, and any and every other agency, department, commission,
rule-making body, bureau, instrumentality and/or political subdivision of
government of any kind whatsoever, now existing or hereafter created, now or
hereafter having jurisdiction over the Property.
"Hazardous Materials" means any substance or material defined or
designated as hazardous or toxic waste, hazardous or toxic material, hazardous
or toxic substance, or other similar term, by any federal, state or local
environmental Legal Requirements. Substances or
<PAGE>
materials which are incorporated into generally available commercial products
and which are required for the routine operation or maintenance of ordinary
office machinery such as photocopiers, typewriters and microcomputers (for
example, photocopier toner or ink, office equipment cleaning products and
lubricating oil), shall not be deemed to be 'Hazardous Materials" under this
Lease so long as they are stored, used and disposed of by Tenant in compliance
with all applicable Legal Requirements.
"Insurance Requirement" means any rule, regulation, code, or other
requirement issued by any fire insurance rating bureau or any body having
similar functions and/or any insurance company which has issued a policy of
Required Insurance, as in effect from the date of this Lease through the
Expiration Date.
"Interest Rate" means a rate per annum equal to the lesser of: (x)
2% above the so-called "base rate" or "prime rate" (the "Prime Rate") of
Citibank, N.A., or any successor thereto, as publicly announced at its principal
office from time to time (or, if such rate shall cease to be quoted by Citibank,
N.A.1 or any successor thereto, a publicly quoted referenced lending rate
reasonably designated by Landlord which is comparable as an Indicator of
interest rates to the Prime Rate); or (y) the maximum rate of interest, if any,
which Tenant may legally contract to pay in the State.
"Landlord's Affiliates" means: Landlord's Employees and/or any
Person affiliated with Landlord through common ownership of stock, partnership
or other beneficial interests, or through common management or control and which
is engaged in the performance of services relating to the development,
construction, management and/or operation of the Corporate Park.
"Legal Proceeding" means every action, litigation, summary
proceeding, arbitration, administrative proceeding, and other legal or equitable
proceeding of any kind whatsoever.
"Law" or "Legal Requirements" means each and every law, rule,
regulation, order, ordinance, statute, requirement, code, or executive mandate
of any kind whatsoever, present or future, issued by any Government Entity
applicable to or affecting the Property, as well as the Conceptual Master Plan
and The Developers Agreement, as each such term is defined in the Declaration.
"Lien" means any and every lien or charge of any kind whatsoever for
the furnishing (or alleged furnishing) of (or on account of) labor, materials,
services, facilities, or any other things whatsoever.
"Managing Agent" means the managing agent of the Property, as
designated by Landlord from time to time, together with its successors and
assigns. The Managing Agent may be Landlord or a Landlord Affiliate.
"Person" means an individual person, corporation, partnership,
trust, joint venture, proprietorship, estate or other incorporated or
unincorporated enterprise, entity, or organization of any kind whatsoever.
"Property" means, collectively, the Land and the Building and every
part or portion thereof and all appurtenances thereto.
"Property Employees" means all Employees of Landlord and other
personnel who are directly involved with the operation, management, maintenance
and repair of the Property.
"Rent" or "Rents" means, collectively, Fixed Rent and Additional
Rent.
"Restoration" (or "Restore") means and includes any and all repairs,
restorations, rebuilding, reconstruction and replacements of every kind.
-2-
<PAGE>
"Senior Encumbrance" means any, some or all of the following, as the
context requires; (x) any and every mortgage now a lien, or hereafter becoming a
lien, upon the Land and/or the Building; and (y) any ground or underlying lease
presently or hereafter in affect between Landlord, as lessee or tenant, and any
owner of the Land and/or the Building.
"State" means the State of New Jersey.
"Tenant's Affiliates" means: Tenant's Employees and/or any Person
affiliated with Tenant through common ownership of stock, partnership or other
beneficial interests or through common management and control.
-3-
<PAGE>
Exhibit B-2
Assessments, Expenses and Taxes
"Base Expenses" means all Expenses incurred by Landlord for calendar
year 1998.
"Base Taxes" means all Taxes incurred by Landlord for calendar year
1998.
"Expenses" means all reasonable costs, fees and expenses and any
taxes thereon, which Landlord pays or incurs in and for the operation,
maintenance and repair of the Property including but not limited to: (a) water
and water charges, water meter (if applicable) and steam, gas and any other fuel
or utilities furnished to the common areas of the Property; (b) electricity
furnished to the common areas of the Property and for the operation of Building
Systems which serve the Property generally; (c) exterior wall and window
cleaning and maintenance and all plaza, sidewalk, curb and other public area
maintenance and cleaning; (d) landscaping, decoration and cleaning of grounds,
sidewalks, parking lots, and other exterior areas of the Property; (e) rubbish
and trash removal and recycling; (f) the purchase price or rental cost, as
applicable, of all building and cleaning supplies, hand tools and materials; (g)
fire, extended coverage, boiler and machinery, sprinkler apparatus, property
damage, loss of rental, flood and plate glass, and other types of hazard
insurance; public and other liability insurance; cost of fidelity bond premiums
or insurance and any other insurance carried with respect to the Property (which
is reasonable and not excessive); (h) wages, and benefits of Property Employees
through the level of building manager; (i) worker's compensation insurance,
payroll, social security, unemployment and other similar taxes with respect to
such Property Employees; (j) charges for independent contractors (including
attorneys accountants and auditors) performing work included within the
definition of Expenses; (k) cost of permits or licenses for the operation of the
Property or any equipment located therein and required by any Government Entity
or pursuant to any Legal Requirements; (l) maintenance costs and expenses, and
ordinary repairs, replacements and improvements, which are necessary or
appropriate for the continued operation of the Property; (m) reasonable
management fees or, if Landlord itself renders customary management services, a
sum in lieu thereof which is not in excess of the then prevailing rates for
management fees in the county in which the Property is situated for office
buildings similar to the Building; (n) blacktopping or other paving (or
repaving) of parking areas, and painting or striping of such areas and snow
removal from sidewalks and parking areas and from roofs and other areas of the
Property; (o) any capital improvement made to the Building after the
Commencement Date which is designed to reduce Operating Expenses, the cost of
which shall be amortized over such reasonable period as Landlord shall
determine, together with interest on the unamortized balance of such cost as may
have been paid by Landlord on funds borrowed for the purpose of constructing
said capital improvements.
Notwithstanding anything to the contrary in the definition of
Expenses in this Lease, Expenses shall not include the following: (a) costs of
structural and roof repairs and replacements for the Building; (b) depreciation
and amortization and other non-cash items such as reserves for bad debts and the
like; (c) expenses incurred in leasing or procuring tenants (including, without
limitation, lease or brokerage commissions, advertising expenses, and expenses
of renovating or otherwise preparing space for tenants); (d) interest and
amortization payments on any mortgage or mortgages and other financing charges
including origination fees, points or prepayment charges; (e) rent or any other
sums payable under any ground or underlying lease or leases; (f) compensation
paid for clerks and attendants in concessions or newsstands operated by
Landlord; (g) the cost of any service for which any tenant, including Tenant,
for which tenant is charged directly; (h) the cost of installing, operating and
maintaining a specialty improvement; (i) any cost or expense representing an
amount paid to a related person or entity which is in excess of the amount which
would be paid in the absence of such relationship; (j) any expenditures for
which Landlord is entitled to be reimbursed (other than pursuant to a general
operating cost pass through); (k) any expense paid or incurred by Landlord in
connection with the operation, management, repair or maintenance of the Property
which is not properly expensed in accordance with generally accepted principles
of real estate accounting; (l) repairs to the
-4-
<PAGE>
extent that Landlord receives insurance proceeds therefore (or would have
received such proceeds but for Landlord's negligence or willful act or failure
to act); (m) increases in insurance premiums to the extent such increase is
related to increased risks associated with the activities of any other tenant;
(n) the cost of any work or service supplied by Landlord consisting of work or
services which are not provided to Tenant; (o) expenses resulting from the
tortious conduct or gross negligence of Landlord, its agents or employees within
the scope of their employment; (p) the cost of redecorating, refitting, or
repairing, or special cleaning or other services or higher level of service not
provided on a regular basis to other tenants of the Property; (q) costs
associated with the operation of the business of Landlord, as opposed to costs
specifically attributable to the operation of the Property; and (r) costs of any
fines or penalties, or any interest thereon.
"Operating Year" means each twelve (12) month period (or any portion
thereof), commencing on January 1 and expiring on December 31 of each calendar
year.
"Taxes" means (a) all real estate taxes and sewer rents, rates and
charges; and (b) general and special assessments for public improvements or
benefits which are levied, assessed or imposed by the City, the County, the
State, or any other Government Entity upon or with respect to the Building
and/or the Land. ("Taxes" shall not include Landlord's federal, state or local
income taxes nor franchise, gift, transfer, excise, capital stock, estate,
succession, inheritance, mortgage, corporation, partnership or any gross
receipts or profits taxes.)
"Tax Year" means each twelve (12) month period (or any portion
thereof), commencing on January 1 and expiring on December 31 of each calendar
year or such other period as may be adopted as the fiscal year for real estate
tax purposes by the City, from time to time.
-5-
<PAGE>
Exhibit C
Permitted Encumbrances
The following are "Permitted Encumbrances" to which this Lease (and
Tenant's estate hereunder) are and shall be subject and subordinate:
1. any and all Senior Encumbrances now or at any time hereafter in
effect or constituting liens on or against the Property;
2. all zoning regulations and ordinances of the State or the city
and all other laws of every kind whatsoever, whensoever enacted;
3. utility company rights, licensee, and/or easements to maintain
poles, lines, wires, towers, stations, cables, pipes, boxes and/or other
fixtures or installations presently serving, crossing, existing, or
granted on, under or with respect to the Property (none of which
materially adversely affect Tenant's rights under this Lease);
4. encroachments, overlaps, boundary line disputes and other matters
which would be disclosed by an accurate survey and inspection of the
Property.
-1-
<PAGE>
Exhibit D
Required Insurance
The following is Required Insurance under this Lease:
1. Comprehensive general commercial liability insurance containing
the so-called "occurrence" clause (which shall include specifically the Premises
and all streets, alleys, vaults, and sidewalks appurtenant to the premises) with
coverage limits not less than:
(a) bodily each occurrence: $3,000,000
(b) property damage each occurrence: $3,000,000
subject to increases from time to time which are not in excess of increases for
similar properties; and
2. Insurance upon Tenant's property and fixtures which are not
included in the basic construction of the Building or Landlord's Work in an
amount equal to the full replacement value thereof, including any increase in
value resulting from increased costs, with coverage against such perils and
casualties as are commonly included in "all risk" insurance policies (including
fire, extended coverage, boiler, breakage of glass, sprinkler leakage,
explosion, collapse, vandalism and malicious mischief); and
3. Worker's compensation and employer's liability insurance:
(a) statutory worker's compensation including
occupational disease as required by Legal Requirements; and
(b) employer's liability insurance with minimum limits
approved by Landlord (not less than $500,000).
4. Any other insurance coverages commercially available from time to
time and reasonably requested by Landlord, which are then customarily obtained
by tenants of properties similar to the Corporate Park.
Alterations Insurance
The following coverages, with the following minimum limits of
coverage, are "Alterations Insurance" for purposes of Section 10.4:
(a) Worker's compensation and employer's liability insurance:
(i) statutory worker's compensation including
occupational disease as required by Legal Requirements; and
(ii) employer's liability insurance with minimum limits
approved by Landlord (not less than $500,000).
(b) Comprehensive commercial general liability insurance with
limits of:
<PAGE>
(i) bodily injury:
each person $3,000,000
each occurrence $3,000,000
aggregate completed
operations $3,000,000
(ii) property damage:
each occurrence $3,000,000
(iii) coverage shall include also:
(A) personal injury groups A, B, C with employee
exclusion deleted.
(B) broad form property damage including all CU
hazards.
(C) independent contractors.
(D) blanket contractual liability.
(E) products liability and completed operations.
(c) Comprehensive automobile liability, including all owned,
not-owned and hired vehicles with a $3,000,000 combined single
limit.
-2-
<PAGE>
Exhibit E
-------------------------------------------------------------------
AGREEMENT
between
TRAFALGAR HOUSE PROPERTY, INC.,
Seller
and
NEXMED (USA), INC.,
Purchaser
-------------------------------------------------------------------
PREMISES:
MERCER CORPORATE PARK
MERCER COUNTY, NEW JERSEY
<PAGE>
TABLE OF CONTENTS
Section and Title Page
- ----------------- ----
1. Subject of Conveyance...............................................1
2. Purchase Price......................................................2
3. Title Matters.......................................................2
4. Violations..........................................................3
5. Assessments.........................................................4
6. Apportionments......................................................4
7. Tax Rate............................................................5
8. Water and Gas Meter.................................................5
9. Deed................................................................5
10. Documents to be Delivered by Seller.................................5
11. Deliveries by Purchaser.............................................7
12. Title Search and Investigations; Inability to Convey................7
13. Unpaid Taxes........................................................9
14. Removal of Liens and Encumbrances..................................10
15. Judgments and Unpaid Taxes.........................................10
16. The Closing........................................................10
17. Broker.............................................................10
18. As Is..............................................................11
19. Amendment; Assignment..............................................11
20. Risk of Loss.......................................................12
21. Seller's Representations...........................................12
22. Purchaser's Representations........................................14
23. Certain Covenants of Seller........................................15
24. Breach.............................................................15
25. Notices............................................................16
26. Tax Reduction Proceedings; Rollback Tax Liability..................17
27. Governing Law......................................................18
-i-
<PAGE>
28. No Waivers.........................................................18
29. Invalidity.........................................................18
30. Counterparts.......................................................18
31. Deposit in Escrow..................................................18
32. Reimbursement of Expenses..........................................21
33. ISRA...............................................................22
34. Development Agreements.............................................22
35. Financing..........................................................22
36. Miscellaneous......................................................23
-ii-
<PAGE>
SCHEDULES
SCHEDULE A - THE LAND
SCHEDULE B - SCHEDULE OF LEASES
SCHEDULE C - SCHEDULE OF CONTRACTS
SCHEDULE D - APPROVALS
-iii-
<PAGE>
EXHIBITS
EXHIBIT A - FORM OF DEED
EXHIBIT B - FORM OF BILL OF SALE
EXHIBIT C - FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES
EXHIBIT D - FORM OF ASSIGNMENT AND ASSUMPTION OF CONTRACTS
EXHIBIT E - FORM OF ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENTS
EXHIBIT F - FORM OF FIRPTA AFFIDAVIT
-iv-
<PAGE>
AGREEMENT dated as of __________, ____, between TRAFALGAR HOUSE
PROPERTY, INC., a Delaware corporation with offices c/o Jones Lang Wootton USA,
One Battery Park Plaza, New York, NY 10004 ("Seller") and NEXMED (USA), INC., a
Delaware corporation with offices at 6087 Triangle Drive, Commerce, CA 90040
("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the owner of the Premises (as hereinafter
defined); and
WHEREAS, Seller desires to sell the Premises to Purchaser, and
Purchaser desires to purchase the Premises from Seller, on the terms and
conditions set forth in this Agreement,
NOW THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration the parties agree as follows:
1. Subject of Conveyance.
The Seller hereby agrees to sell and convey, and the Purchaser
hereby agrees to purchase, subject to all terms and conditions set forth in this
Agreement:
(a) those certain plots, pieces or parcels of land situate,
lying and being in the County of Mercer, Township of Robbinsville and State of
New Jersey, as described in Schedule A annexed hereto (the "Land"); and
(b) the building, open parking areas and improvements erected
on the Land and commonly known as 350 Corporate Boulevard, Mercer Corporate Park
Robbinsville, New Jersey 08691-1598 (the "Building"); and
(c) all appurtenances in and to the Land and the Building; and
(d) all right, title and interest, if any, of the Seller in
and to those certain fixtures, equipment and other personal property affixed to
or appurtenant to the Land and Building which are not the property of tenants of
the Building or of other persons (the "Personal Property"); and
(e) all right, title and interest, if any, of the Seller in
and to any land lying in the bed of any public street, road, alley, easement,
right of way, water, water course, hereditament or avenue opened or proposed, in
front of or adjoining said Land and Building (including strips and gores between
the Land and abutting property), to the center line thereof.
(The foregoing properties, rights and interests set forth or described in
sub-sections (i), (ii), (iii), (iv), (v) and (vi) of this Section 1, are
hereinafter collectively referred to as the "Premises".)
2. Purchase Price.
The purchase price for the Premises is [TO BE PROVIDED BY SELLER]
payable as follows:
(a) [10% OF PURCHASE PRICE] on the execution and delivery of
this Agreement (that amount, together with any interest earned thereon, the
"Deposit"), by (i) certified or official bank check drawn on or by a bank which
is a member of the New York Clearing House Association to the order of Seller's
attorneys, Morgan, Lewis & Bockius LLP(the "Escrow Agent"), or (ii) wire
transfer of federal funds to a banking account designated by the Escrow Agent
(to be held in escrow in accordance with Section 31); and
(b) the balance of the purchase price, after adjustments and
apportionments as set forth in the settlement statement to be executed by the
parties in connection with the Closing, shall be payable by Purchaser to Seller
(or as otherwise directed by Seller) at the
<PAGE>
Closing by one or more bank checks to not more than five (5) payees, as
requested by Seller not less than two (2) days prior to the Closing; and/or (ii)
by wire transfer of immediately available federal funds to not more than five
(5) bank accounts designated by Seller not less than two (2) business days prior
to the Closing.
(c) Any interest earned on the Deposit shall be divided
equally at the Closing between Seller and Purchaser; except that if this
Agreement is terminated by Purchaser pursuant to Section 12 hereof, then all
interest on the Deposit shall belong to the Purchaser.
3. Title Matters.
The Premises are sold and are to be conveyed subject to the
following matters (the "Permitted Encumbrances"):
(a) Any and all laws, statutes, ordinances, codes, rules,
regulations, requirements, or executive mandates as the same may be amended
subsequent to the date hereof (collectively "Laws") affecting the Premises
adopted by the United States, the State of New Jersey, the County of Mercer, and
any and every other agency, department, commission, rule-inducing body, bureau,
instrumentality and/or political subdivision of government of every kind
whatsoever having jurisdiction thereof (each a "Government Entity"); and
(b) Encroachments, if any, of improvements (other than
buildings) on any street or highway; provided same do not materially impair the
value of the Premises or its continued use as it is being used on the date of
this Agreement; and
(c) State of facts which a survey or physical inspection
thereof would disclose provided the same does not render Seller's title
unmarketable; and
(d) Subject to all other provisions of this Agreement, the
Leases (as hereinafter defined) and the rights of tenants, subtenants and other
parties in possession under the Leases as set forth on Schedule C annexed hereto
and made a part hereof; and
(e) The Contracts (as hereinafter defined), and any
replacements and renewals thereof (subject to apportionment as provided in this
Agreement), if and to the extent the same are assumed by Purchaser, at its
option, at Closing; and
(f) Real estate taxes, water and sewer charges, and all
special assessments, assessments for improvements and other assessments, if any,
which are not due and payable prior to the date of the Closing (subject to
apportionment as provided in this Agreement); and
(g) The Rollback Tax Liability (as herein defined); and
(h) The Development Agreements (as herein defined); and
(i) Easements of record and rights of record of public
utilities; and
(j) Covenants, restrictions, easements, reservations and
agreements of record affecting the Premises; and
(k) Such other matters as any reputable title insurer licensed
to do business in the State of New Jersey (the "Title Insurer") shall be
willing, without special premium, to omit as exceptions to coverage.
4. Violations.
All violations or notes or notices of violations of law or municipal
ordinances, orders or requirements (collectively, "Violations") noted or issued
prior to the date of this Agreement, and all Violations noted or issued on or
after the date of this Agreement which can be removed at a cost to Seller of
-2-
<PAGE>
$10,000 or less, shall be removed by Seller, and the Premises shall be conveyed
free of the same; provided, however, that Seller shall be entitled to an
adjournment of the Closing for a period not exceeding 60 days for the purpose of
removing such Violations. Seller shall not be obligated to remove, or take any
action or incur any expense in connection with, any Violations noted or issued
on or after the date of this Agreement which cannot be removed at a cost to
Seller of $10,000 or less, and if any such Violations are noted or issued,
unless Seller agrees, at its option, to remove such Violations, Purchaser shall
have the right, at its option, to (a) terminate this Agreement and receive a
refund of the Deposit, and upon such termination and refund this Agreement shall
be deemed terminated and the parties hereto shall be released of all obligations
and liabilities under this Agreement, except those that are expressly stated to
survive the cancellation or termination of this Agreement, and Purchaser shall
have no rights of action against Seller, in law or in equity, for damages or
specific performance; or (b) accept title to the Premises subject to the
Violations, and waive the Violations, in which event Seller shall make the
deliveries provided in this Agreement to Purchaser, to the extent Seller is able
so to do, and Purchaser shall receive a credit of $10,000 against the purchase
price to be paid at Closing.
5. Assessments.
If, at the date of the Closing, the Premises or any part thereof
shall be or shall have been affected by any assessments or special assessments
payable by its terms in installments, of which the first installment is then a
charge or lien, or has been paid, (a) any such assessments or installments
payable on or after the date of the Closing shall be the responsibility of
Purchaser, and (b) any such assessments or installments payable prior to the
date of the Closing shall be deemed an objection to title governed by the
provisions of Section 12. If, at the date of the Closing, the Premises or any
part thereof shall be or shall have been affected by any assessments or special
installments payable by its terms in a lump sum or payable, at the option of the
payor, in a lump sum or installments, any such assessments or installments
(including any installments payable on or after the date of the Closing) shall
be deemed an objection to title governed by the provisions of Section 12. The
provisions of this Section shall survive the Closing.
6. Apportionments.
(a) The following are to be apportioned as of the date
immediately preceding the date of the Closing:
(b) Only to the extent that any existing Tenant has failed to
vacate its premises prior to the Closing Date; Seller and Purchaser shall
apportion all rents and additional rents due under the Leases ("Rents") as and
when collected.
(c) Subject to Section 7, real estate taxes and assessments on
the basis of the fiscal year for which assessed.
(d) Subject to Section 8, water and sewer charges and rents on
the basis of the fiscal year for which assessed, unless the meters are read on
the date of the Closing; provided, however, if any such charges or rents are
payable by any tenant by the express terms of its Lease, such charges or rents
shall not be apportioned.
(e) Subject to Section 8 utilities, including, without
limitation, telephone, electricity (and any sales tax thereon) and gas, on the
basis of the most recently issued bills therefor; unless the meters are read on
the date of the Closing; provided, however, if any such charges or rents are
payable by any tenant by the express terms of its Lease, such charges or rents
shall not be apportioned.
(f) Any charges, advance payments and deposits paid or payable
under the Contracts which Purchaser assumes at Closing, and which shall not have
been terminated as of the Closing.
(g) Fees for Licenses and permits, to the extent actually
transferred.
-3-
<PAGE>
(h) Fuel (including sales tax), based on a reading and the
current price therefor.
(i) Except as otherwise provided in this Agreement, the
apportionments shall be made in accordance with the customs in respect to title
closings in the jurisdiction where the Premises are located.
(j) Any errors in calculations or apportionments shall be
corrected or adjusted as soon as practicable after the Closing.
(k) The provisions of this Section shall survive the Closing.
7. Tax Rate. If the Closing shall occur before the tax rate is
fixed, the apportionment of real estate taxes shall be upon the basis of the tax
rate for the next preceding year applied to the latest assessed valuation,
subject to further and final adjustment when the tax rate is fixed for the year
in which the Closing takes place. The provisions of this Section shall survive
the Closing.
8. Water and Gas Meter. If there are water or gas meters on the
Premises, Seller shall furnish readings to a date not more than five days prior
to the date of the Closing, and the unfixed meter charges and the unfixed sewer
rents, if any, based thereon for the intervening time shall be apportioned on
the basis of such last reading.
9. Deed. The deed to the Premises (the "Deed") shall be a bargain
and sale deed, with covenant against grantor's acts in the form of Exhibit A
attached hereto, and shall be duly executed and acknowledged so as to convey to
Purchaser the fee simple of the Premises, free of all encumbrances other than
Permitted Encumbrances, except as otherwise expressly set forth in this
Agreement.
10. Documents to be Delivered by Seller.
(a) At the Closing, Seller shall execute, acknowledge where
appropriate and/or deliver the following:
(b) The Deed.
(c) All tax and information returns, and any transfer or
documentary stamp taxes, required in connection with this transaction.
(d) A bill of sale in the form of Exhibit B attached hereto.
(e) An assignment of all leases in the form of Exhibit C
attached hereto and made a part hereof (the "Assignment and Assumption of
Leases").
(f) An assignment to Purchaser in the form of Exhibit D
attached hereto and made a part hereof (the "Assignment and Assumption of
Contracts"), of all of the interest of Seller in those Contracts which are in
effect on the Closing Date and which Purchaser elects, at its option, or is
required by the terms of this Agreement, to assume.
(g) An assignment to Purchaser in the form of Exhibit E
attached hereto and made a part thereof (the "Assignment and Assumption of
Development Agreements") of all of the interest of Seller in those Development
Agreements which are in effect on the Closing Date.
(h) To the extent in Seller's possession or available to
Seller at no cost or expense, original counterparts of all of the Leases,
initialed by Purchaser, copies of all other Leases, certified by Seller as true
and complete to the actual knowledge of Seller and initialed by Purchaser, and
copies of all of the Contracts.
-4-
<PAGE>
(i) Originals or copies of all applicable bills, invoices,
fuel readings and lists required for the apportionments referred to in Section
6.
(j) To the extent they are then in Seller's possession or
available to Seller at no cost or expense, copies of all Books and Records, and
all Licenses and Permits.
(k) Possession of the Premises in the condition required by
this Agreement, and all keys and combinations therefor; and
(l) Any other documents required by this Agreement to be
delivered by Seller at the Closing or reasonably necessary to effectuate the
transactions contemplated herein.
(m) An affidavit of title in form and substance reasonably
satisfactory to Seller.
(n) A statement setting forth the purchase price with all
adjustments and prorations shown thereon.
(o) A certified copy of a corporate resolution of the Board of
Directors of Seller authorizing Seller to execute this Agreement and sell the
Premises to Purchaser.
(p) The provisions of this Section shall survive the Closing.
11. Deliveries by Purchaser.
(a) At the Closing, Purchaser shall execute, acknowledge where
appropriate and/or deliver the following:
(b) Pay to Seller the portion of the purchase price referred
to in Section 2(b), as adjusted for apportionments under Section 6; and
(c) Execute and deliver the Assignment and Assumption of
Contracts, the Assignment and Assumption of Leases and the Assignment and
Assumption of Development Agreements and assume Purchaser's obligations
thereunder; and
(d) Cause the deed to be recorded, duly complete all required
real property transfer tax returns and cause all such returns and checks in
payment of such taxes to be delivered to the appropriate officers promptly after
the Closing; and
(e) Purchaser shall deliver a certified copy of the corporate
resolution of its Board of Directors to execute this Agreement and purchase its
share of the Premises; and
(f) Deliver any other document required by this Agreement to
be delivered by Purchaser at the Closing or reasonably necessary to effectuate
the transactions contemplated herein.
(g) The provisions of this Section shall survive the Closing.
12. Title Search and Investigations; Inability to Convey.
(a) Purchaser shall, promptly after it executes this
Agreement, order a title search of the Premises and conduct such investigations
(collectively, "Investigations") of the Premises as Purchaser deems advisable,
including, without limitation, Leases, Contracts, engineering, environmental,
soil, licenses, permits, approvals, and all other information and matters which
Purchaser deems advisable. Seller shall cooperate in all reasonable respects
with Purchaser during the Investigation period and thereafter, including by
giving Purchaser reasonable access to the Premises and all Books and Records and
all other information pertaining to the Premises in the possession or within the
control of Seller for the purpose of conducting the
-5-
<PAGE>
Investigations. Purchaser shall provide Seller with reasonable notice prior to
entering the Premises to conduct any Investigations and shall provide Seller
with copies of its certificate of title, and title search or title reports
(including, without limitation, the tax and any other searches ordered by
Purchaser). Purchaser shall not perform any Investigations which damage any part
of the Premises (except soil tests, provided any damage is repaired immediately,
and, unless follow-up work is required, prior to the next Investigation). Seller
shall have no obligations or liabilities to Purchaser in connection with the
Investigations or the results of the Investigations. Purchaser shall indemnify,
defend and hold harmless Seller from and against any claims, actions,
proceedings, losses, liabilities, costs and expenses caused by or arising out of
any Investigations, including, without limitation, reasonable attorneys' fees.
The provisions of the immediately preceding two sentences shall survive the
Closing, or the termination of this Agreement prior to the Closing.
(b) Purchaser shall have the right, at its option, at any time
prior to 5:00 p.m. Eastern Standard Time on ______*/______, 1997 (the
"Investigation Date"), to terminate this Agreement on account of the existence
of an "Adverse Environmental Condition" (as herein defined) by giving notice to
Seller and Escrow Agent of its intention to terminate this Agreement pursuant to
this provision; and, upon receipt of such notice, the Escrow Agent shall refund
the Deposit, (minus the sum of $100,000) to Purchaser and this Agreement shall
be deemed cancelled, and neither party shall have any further obligation to the
other under this Agreement, except for those obligations that are expressly
stated to survive the cancellation or termination of this Agreement; except that
Seller may retain the sum of $100,000 from the Deposit as liquidated damages.
Purchaser shall notify Seller and the Escrow Agent promptly, but in any event
not later than the Investigation Date, if Purchaser decides to terminate this
Agreement or, alternatively, not to terminate this Agreement; provided, however,
that unless Purchaser notifies Seller and the Escrow Agent on or prior to the
Investigation Date of its intention to terminate this Agreement, Purchaser shall
be deemed to have irrevocably decided not to terminate this Agreement. The term
"Adverse Environmental Condition" shall mean a condition identified in writing
by a reputable and duly licensed engineer subsequent to the completion of a
"Phase One" environmental investigation which shall cost, in the professional
opinion of such engineer, more than $25,000 to cure.
(c) Notwithstanding any provision of this Agreement to the
contrary, if Seller shall be unable to convey the Premises in accordance with
the terms of this Agreement, or if any other conditions to Purchaser's
obligations under this Agreement shall not be satisfied, the sole obligation and
liability of Seller shall be to direct the Escrow Agent to refund to Purchaser
the Deposit, and to pay Purchaser's net cost of examining title, which cost is
not to exceed the charges fixed by the local board of title underwriters and
actually to be paid by Purchaser, and survey charges actually to be paid by
Purchaser, which charges are not to exceed $5,000, whereupon this Agreement
shall be deemed cancelled and the parties hereto shall be released of all
obligations and liabilities under this Agreement, except those that are
expressly stated to survive the cancellation or termination of this Agreement;
and Purchaser shall have no rights of action against Seller, in law or in
equity, for damages or specific performance. Notwithstanding the foregoing,
Purchaser shall have the right to accept such title as Seller can convey, and to
waive any conditions to Purchaser's obligation under this Agreement, in which
event Seller shall make the deliveries provided in this Agreement to Purchaser,
to the extent that Seller is able so to do, and there shall be no reduction in
the purchase price. Seller shall have no duty nor shall Seller be required to
take any action, to institute any proceedings or to incur any expense in order
to remedy or remove any objections to title, otherwise to render title in
accordance with the terms of this Agreement, or to satisfy any other conditions
to Purchaser's obligations under this Agreement; and if Seller shall elect not
to take any action, institute any proceeding or incur any expense to remedy or
remove any objection to title, otherwise to render title in accordance with the
terms of this Agreement, or to satisfy any other conditions to Purchaser's
obligations under this Agreement, then for the purposes of this Section, Seller
shall be deemed unable to convey the Premises in accordance with the terms of
this Agreement; provided, however, that if at the Closing there are any
encumbrances or other matters affecting title to the Premises other than
- ----------
*/ Thirty (30) days from Contract Date.
-6-
<PAGE>
Permitted Encumbrances ("Title Objections") which are of the nature that they
are in a liquidated amount (such as mechanics liens, judgments or tax liens),
Seller shall cause such Title Objections to be removed of record.
Notwithstanding the foregoing, unless any Title Objections are voluntarily
created by Seller (such as a mortgage), with respect to which no dollar
limitation shall apply, Seller shall not be required to spend more than $10,000
in the aggregate in removing such Title Objection of record, and if such amount
is insufficient, Seller shall not be required to take any action and Purchaser
shall have the right, at its option, to (i) terminate this Agreement and receive
a refund of the Deposit, and upon such termination and refund this Agreement
shall be deemed terminated and the parties hereto shall be released of all
obligations and liabilities under this Agreement, except those that are
expressly stated to survive the cancellation or termination of this Agreement,
and Purchaser shall have no rights of action against Seller, in law or in
equity, for damages or specific performance; or (ii) accept such title as Seller
can convey, and to waive all Title Objections, in which event Seller shall make
the deliveries provided in this Agreement to Purchaser, to the extent that
Seller is able so to do, and Purchaser shall receive a credit against the
purchase price of $10,000 at Closing. The acceptance of the Deed by Purchaser
shall be deemed a full performance and discharge of every agreement and
obligation of Seller to be performed under this Agreement, except those, if any,
which are specifically stated in this Agreement to survive the Closing. Unless
otherwise specifically stated, no obligations, liabilities, representations or
warranties of Seller or Purchaser shall survive the Closing. Purchaser shall be
responsible for all charges and premiums in connection with its title report and
search, title insurance policy and survey, if any (except as otherwise provided
herein), and Investigations, and any sales tax (and sales tax return) required
in connection with the transaction contemplated by this Agreement. Except as set
forth in Section 19, Seller shall be responsible for all real estate transfer
and documentary stamp taxes required in connection with the transaction
contemplated by this Agreement. The provisions of this Section shall survive the
Closing.
13. Unpaid Taxes.
The amount of any unpaid taxes and assessments, water charges, and
sewer rents, if any, which Seller is obligated to pay and discharge, with
interest and penalties thereon to a date not less than four business days after
the date of the Closing, may, at the option of Seller, be allowed to Purchaser
out of the purchase price, provided official bills therefor with interest and
penalties thereon figured to said date are furnished by Seller at the Closing.
14. Removal of Liens and Encumbrances.
If at the date of the Closing there are any liens or encumbrances
which Seller elects to pay and discharge, Seller may use any portion of the
purchase price to satisfy the same, provided Seller shall simultaneously either
deliver to Purchaser at the Closing instruments in recordable form sufficient to
satisfy such liens and encumbrances of record, together with the cost of
recording or filing said instruments, or, provided that Seller has made
arrangements with Purchaser's title insurance company at or before the Closing,
Seller shall deposit with said company sufficient monies to insure the obtaining
and recording of such satisfactions and the issuance of title insurance to
Purchaser free of such liens and encumbrances. Purchaser, if request is made
within a reasonable time prior to the date of the Closing, agrees to provide at
the Closing no more than five separate certified or official bank checks or
federal funds wire transfers as requested, for all or part of the purchase
price, to facilitate the satisfaction of any such liens or encumbrances or for
any other reason. The existence of any such liens and encumbrances shall not be
deemed objections to title if Seller shall comply with the foregoing
requirements.
15. Judgments and Unpaid Taxes.
If a search of the title discloses judgments, bankruptcies or other
returns against other persons having names the same as or similar to that of
Seller, Seller shall on request deliver to Purchaser an affidavit stating that
such judgments, bankruptcies or other returns are not against Seller. Unpaid
franchise taxes of any corporation in the chain of the title to the Premises
shall not be objections to title if Purchaser's title insurance company will
insure Purchaser against collection of such taxes out of the Premises. If
Purchaser's title insurance company will not insure Purchaser
-7-
<PAGE>
against collection of such taxes out of the Premises, Seller may be required to
post such bond or have moneys held in escrow as title insurance company may
require.
16. The Closing.
The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at the office of Seller's counsel, Morgan, Lewis &
Bockius LLP, 101 Park Avenue, New York, NY 10178, at 10:00 A.M. on [TO BE
INSERTED BY SELLER] (Notwithstanding the foregoing, at either party's election,
the transactions may be closed in escrow with Purchaser's title insurer acting
as the escrow agent on terms to be mutually agreed upon.) Time will be of the
essence for the closing to occur on [TO BE INSERTED BY SELLER].
17. Broker.
Purchaser and Seller each represent and warrant to the other that
they dealt with no broker in connection with, nor has any broker had any part in
bringing about, this transaction other than Fennelly Associates, Inc. and Jones
Lang Wootton USA (collectively, the "Broker"). Seller shall pay the brokerage
commission due to the Broker in accordance with a separate agreement. Purchaser
and Seller shall each indemnify, defend and hold harmless the other from and
against any claim by any broker or other person for a commission or other
compensation in connection with this transaction if such claim is based in whole
or in part upon any act of the indemnifying party or its representatives, and
from all losses, liabilities, costs and expenses in connection with such claim,
including, without limitation, reasonable attorneys' fees. The provisions of
this Section shall survive the Closing, or the termination of this Agreement
prior to the Closing.
18. As Is.
All understandings and agreements heretofore had between the parties
hereto are merged in this Agreement, which alone fully and completely expresses
their agreement. This Agreement is entered into after full investigation,
neither party relying upon any statement or representation, not embodied in this
Agreement, made by the other. Purchaser covenants that on or before
____**/_____, ______ it will inspect the Premises, the Buildings constituting
part of the Premises, the uses thereof, the environmental condition thereof, the
state of title to the Premises, and the fixtures, equipment and personal
property included in this sale, to its satisfaction, that it will have
independently investigated, analyzed, and appraised the value and profitability
thereof, that it will have received and/or reviewed the Leases (and Lease
files), the Contracts, all licenses, permits and approvals with respect to the
Premises and their use, and all other documents referred to herein, that it will
be thoroughly acquainted with all of the foregoing, and that, subject to the
provisions of Section 12(b), it agrees to take title to the Premises "AS IS" and
in their condition existing on **, ____ subject to reasonable use, wear, tear
and exposure to the elements between **, ____ and the date of the Closing.
Purchaser expressly acknowledges that, except as expressly provided herein,
neither Seller nor any agent or representative of Seller has made, and Seller is
not liable for or bound by in any manner, any express or implied warranties,
guaranties, promises, statements, inducements, representations or information
pertaining to the Leases, the Contracts, any licenses, permits, approvals or
other documents referred to herein, or the Premises, the fixtures, equipment and
personal property located therein, the physical condition, environmental
condition, state of title, income, expenses or operation thereof, or any other
matter or thing with respect thereto. The provisions of this Section shall
survive the Closing.
19. Amendment; Assignment.
This Agreement may not be changed or terminated orally or in any
manner other than by a written agreement executed by the party to be charged.
The provisions of this Agreement shall extend to, bind and inure to the benefit
of the parties hereto and their respective
- ----------
**/ Thirty (30) days from Contract Date.
-8-
<PAGE>
heirs, executors, personal representatives, administrators, successors and
assigns. Purchaser shall not sell, assign or otherwise transfer this Agreement
or purchaser's interest under this Agreement without the express written consent
of Seller, and any purported sale, assignment or other transfer made without
said consent shall be void and of no force and effect; provided, however, that
Purchaser may assign this Agreement without the consent of Seller but upon prior
notice to Seller to any entity controlling, controlled by or under common
control with Purchaser whose financial condition is reasonably acceptable to
Seller. In the event that Purchaser sells, assigns or otherwise transfers this
Agreement or Purchaser's interest in this Agreement, Purchaser shall pay all
real estate transfer and documentary stamp taxes, and all other charges, taxes
and fees due in respect of such sale, assignment or transfer, file all returns
required to be filed in connection therewith, and indemnify, defend and hold
harmless Seller from and against any claims, actions, proceedings, losses,
liabilities, costs and expenses incurred by Seller as a result of the failure of
Purchaser to pay such taxes, charges or fees or file such returns. The
provisions of this paragraph shall survive the Closing.
20. Risk of Loss.
If prior to the Closing any Material Portion of the Premises (as
hereinafter defined) shall be taken by condemnation or eminent domain or damaged
or destroyed by fire or other casualty, either party shall have the right to
cancel this Agreement by giving notice to the other party within 15 days
following notice of the taking or fire or other casualty. If either party shall
give that notice, Seller shall direct the Escrow Agent to refund to Purchaser
the Deposit, whereupon this Agreement shall be deemed cancelled and the parties
hereto shall be released of all obligations and liabilities hereunder, except
those that are expressly stated to survive the cancellation or termination of
this Agreement; and neither party shall have any rights of action against the
other, in law or in equity, for damages or specific performance. If an
immaterial portion of the Premises shall be taken by condemnation or eminent
domain or damaged or destroyed by fire or other casualty, or if a Material
Portion of the Premises is taken or damaged by fire or other casualty and
neither party cancels this Agreement, Purchaser shall purchase the Premises in
accordance with this Agreement and the purchase price shall not be reduced
(except that at the Closing Purchaser shall receive a credit against the
purchase price in the amount of Seller's insurance "deductible" or "co-insurance
payment"), but Seller's rights to (i) any award resulting from such taking, or
(ii) any insurance proceeds resulting from such fire or other casualty (less any
sums expended by Seller for repair and restoration), shall be assigned by Seller
to Buyer at the Closing. A "Material Portion of the Premises" (a) shall be
deemed to have been taken by condemnation or eminent domain, if the portion
taken equals or exceeds 20 percent of the Premises, and (b) shall be deemed to
have been damaged or destroyed by fire or other casualty, if the cost of repair
and restoration shall be estimated by a contractor selected by Seller to exceed
$50,000. Seller and Purchaser waive the provision of any law of the State of New
Jersey applicable to the subject matter of this Section, and agree that their
respective rights in the event of a taking or damage or destruction shall be
governed by this section.
21. Seller's Representations.
(a) Seller represents and warrants to Purchaser, as follows:
(b) Seller is duly organized and validly existing corporation
in good standing under the laws of the State of Delaware.
(c) Seller is duly and legally authorized by all requisite
corporate action to enter into this Agreement and to sell, transfer and convey
the Premises.
(d) The person executing this Agreement on behalf of Seller is
a duly authorized representative of Seller and has full power and authority to
execute this Agreement on behalf of Seller. Seller has all requisite power and
authority to sell the Premises to Purchaser and to execute this Agreement and
the other documents and instruments contemplated hereby; and to the best of
Seller's knowledge, except as provided in this Agreement, the performance of
Seller's duties hereunder or thereunder do not require Seller to obtain any
authorizations, consents or approvals, licenses, exemptions from or filings or
registrations with any person, entity, court,
-9-
<PAGE>
executive or legislative body, governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which have not been
obtained by Seller or otherwise waived.
(e) This Agreement, when duly executed and delivered, will be
the legal, valid and binding obligation of Seller, enforceable in accordance
with the terms of this Agreement. Seller's performance of its duties and
obligations under this Agreement and the transfer documents contemplated hereby
will not conflict with, or result in a breach of or default under, any provision
of any of Seller's organizational documents any agreements, instruments,
decrees, judgments, injunctions, orders, writs, laws, rules or regulations, or
any determination or award of any court or arbitrator, to which Seller is a
party or by which its assets are or may be bound.
(f) Attached hereto as Schedule B is a Schedule of all leases
(and all subleases entered into by any tenants under the leases of which Seller
has actual knowledge) of space at the Premises, and all other occupancy
agreements with respect to any portion of the Premises of which Seller has
actual knowledge (hereinafter collectively called the "Leases") on the date of
this Agreement.
(g) Attached hereto as Schedule C is a list of all service
contracts, equipment leases, maintenance contracts, supply contracts, management
agreements and other material agreements (hereinafter collectively called the
"Contracts") which pertain to or affect the Premises or any part thereof on the
date of this Agreement.
(h) There are and shall at the Closing be no employees, and no
employment agreements or contracts or union agreements or contracts, oral or
written, which pertain to or affect the Premises or any part thereof
(i) There are no actions, suits or proceedings currently
pending or, to Seller's actual knowledge, threatened, which if successful would
adversely affect Purchaser's right, title and interest in and to the Premises.
(j) Seller has received no written notice of any violation of
any law with respect to the Premises which remains uncured on the date of this
Agreement.
(k) Seller has received no written notice of any pending or
threatened condemnation or eminent domain proceeding with respect to the
Premises or any part thereof
(l) Seller has received no written notice of any actual or
proposed assessments or special assessments against the Premises, other than
annual real estate taxes.
(m) With respect to any representations or warranties of
Seller contained in this Agreement that are qualified to the extent of Seller's
"knowledge" or words of like meaning, "knowledge" shall mean the actual
knowledge of Ms. Ronnie Ragoff, a Director of Jones Lang Wootton USA.
(n) Notwithstanding anything to the contrary contained herein
or in any of the closing documents, Seller shall not be liable for, and
Purchaser shall not be entitled to exercise any right or remedy or to assert any
claim against Seller with respect to, any breach of any representation or
warranty made by Seller herein with respect to any Lease if and to the extent
Seller delivers an estoppel certificate from the tenant under the Lease
expressly affirming such representation or warranty; and in such event such
representation or warranty shall be deemed not to have been made by Seller.
22. Purchaser's Representations.
(a) Purchaser represents and warrants to Seller, as follows:
-10-
<PAGE>
(b) Purchaser is a corporation duly organized and validly
existing in good standing in good standing under the laws of the State of
Delaware and has all requisite power and authority to conduct its business as
currently conducted .
(c) This Agreement, when duly executed and delivered, will be
the legal, valid and binding obligation of Purchaser enforceable in accordance
with the terms of this Agreement. Purchaser is duly and legally authorized to
enter into this Agreement, and has complied with all laws, rules, regulations,
and agreements to which it may be subject. The undersigned representative of
Purchaser is duly authorized to act on behalf of and to bind Purchaser to the
terms of this Agreement.
(d) Purchaser's performance of its duties and obligations
under this Agreement will not conflict with, or result in a breach of or default
under, any agreements, instruments, decrees, judgments, injunctions, order,
writs, laws, rules or regulations, or any determination or award of any
arbitrator, to which Purchaser is a party or by which its assets are or may be
bound.
(e) Purchaser acknowledges that at the Closing the Purchaser
will have inspected the Premises and will be fully familiar with the physical
condition and state of repair of the Premises and the Buildings and is taking
the Premises "as is" and in their present condition, subject to reasonable use,
wear, tear and exposure to the elements between now and the Closing Date,
without any reduction in the purchase price for any change in such condition by
reason thereof subsequent to the date of this Agreement.
23. Certain Covenants of Seller.
(a) Seller covenants that between the date of this Agreement
and the Closing:
(b) Seller shall not modify or amend any Contract in any
material respect or enter into any new Contract unless the same is terminable
without penalty by Seller on or prior to the Closing.
(c) Seller shall maintain in full force and effect until the
Closing Seller's casualty insurance policies.
(d) Seller shall not enter into any new lease or modify,
amend, renew or extend any existing Lease.
(e) If any space is vacant on the Closing Date, Purchaser
shall accept the Premises subject to such vacancy, provided that the vacancy was
not permitted or created by Seller in violation of any provision of this
Agreement, which time shall be of the essence.
(f) Between the date of this Agreement and the date of
Closing, Seller will perform its obligations under the Leases, Contracts and
Permitted Encumbrances.
(g) Between the date of this Agreement and the date of
Closing, Seller will not voluntarily encumber the Premises.
24. Breach.
(a) If for any reason Purchaser breaches any representation,
warranty or agreement under this Agreement, Seller, as and for its sole remedy
arising out of such breach, shall be entitled to terminate this Agreement upon
notice to Purchaser and Escrow Agent shall promptly deliver the Deposit to
Seller. Upon Seller's receipt of the Deposit, neither party shall have any
further obligations under this Agreement.
(b) If for any reason other than a willful failure to convey
the Premises in accordance with this Agreement, Seller shall fail to comply with
any representation, warranty or
-11-
<PAGE>
agreement under this Agreement, then Purchaser, as and for its sole remedy
arising out of such breach, shall have the right to terminate this Agreement
upon notice to Seller, in which event the Deposit shall be returned by Escrow
Agent to Purchaser and neither party shall thereafter have any further
obligations under this Agreement. In the event that Seller willfully fails to
convey the Premises in accordance with this Agreement, Purchaser shall be
entitled, at its option, to (i) terminate this Agreement upon notice to Seller,
in which event the Deposit shall be returned by Escrow Agent to Purchaser and
neither party shall thereafter have any further obligations under this
Agreement; (ii) commence an action against Seller seeking specific performance
of Seller's obligations under this Agreement; or (iii) pursue all of its
remedies at law or in equity.
25. Notices.
All notices, demands, requests or other communications required or
permitted to be given under this Agreement must be in writing and shall be
deemed to have been properly given if delivered by hand or sent by (a)
registered or certified mail, postage prepaid, return receipt requested, (b)
reputable overnight delivery service, or (c) telecopy, as follows:
If to Seller:
Trafalgar House Property, Inc.
375 Phillips Boulevard
Trenton, NJ 08618
Attention: Mr. W. J. B. Davies
Telephone: 609-883-2006
Fax: 609-883-8544
with a copy to:
Jones Lang Wootton USA
One Battery Park Plaza
New York, NY 10004
Attn: Ms. Ronnie Ragoff
Telephone: 212-612-7744
Fax: 212-612-7735
with a copy to Seller's counsel:
Morgan, Lewis & Bockius
101 Park Avenue
New York, New York 10178
Attention: Mario J. Suarez, Esq.
Telephone: (212) 309-6000
Fax: (212) 309-6273
If to Purchaser:
NexMed (USA), Inc.
6087 Triangle Drive
Commerce, CA 90040
Attention: Mr. Y. Joseph Mo
President
with a copy to Purchaser's counsel:
Drinker, Biddle & Reath
105 College Road East
Suite 400
Princeton, NJ 08540
Attention: Richard Goldman, Esq.
-12-
<PAGE>
Telephone: (609) 497-7050
Fax: (609) 921-2265
Any party may, by notice given in accordance with this Section, designate a
different address for notices, demands, requests or other communications.
Notices, demands, requests and other communications shall be deemed given on the
date the same is received as evidenced by a receipt or an acknowledgment of
receipt (and the failure of a party to accept a communication shall be deemed
receipt).
26. Tax Reduction Proceedings; Rollback Tax Liability
26.1 Seller shall have the right to prosecute and continue to
prosecute subsequent to the Closing any pending tax certiorari proceedings for
the tax year in which the Closing occurs and all prior tax years. Any refunds
obtained for any tax years prior to the tax year in which the Closing occurs,
net of the expenses incurred in obtaining such refunds, shall be paid to Seller.
Any refund obtained for the tax year in which the Closing occurs, net of the
reasonable expenses incurred in obtaining such refund, shall be paid to
Purchaser to the extent of the amount thereof which is payable to the tenants
under the Leases (and Purchaser shall make the required refunds to such
tenants), and the balance thereof, if any, shall be apportioned to the date
preceding the date of the Closing, with any portion thereof allocable to periods
subsequent to the date preceding the date of the Closing to be paid to Purchaser
and the remainder to be paid to Seller. The provisions of this Section shall
survive the Closing.
26.2 Seller shall not be responsible for, and Purchaser shall be
solely responsible for, any so-called "rollback tax" liability resulting from
the withdrawal of the Premises (or any part thereof) from tax-abated status
under the Farmland Assessments Act of 1964, as supplemented and amended to the
date hereof, pertaining to the Tax Year in which the rollback becomes effective
and all prior years. Accordingly, there shall be no apportionment of rollback
taxes and all such taxes shall be borne by Purchaser. This Section shall survive
the Closing.
27. Governing Law.
Irrespective of the place of execution or performance, this
Agreement shall be governed by and construed in accordance with the law of the
State of New Jersey. This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Agreement to be drafted. If any words or phrases in this Agreement shall have
been stricken out or otherwise eliminated, whether or not any other words or
phrases have been added, this Agreement shall be construed as if the words or
phrases so stricken out or otherwise eliminated were never included in this
Agreement and no implication or inference shall be drawn from the fact that said
words or phrases were so stricken out or otherwise eliminated. All terms and
words used in this Agreement, regardless of the number or gender in which they
are used, shall be deemed to include any other number and any other gender as
the context may require.
28. No Waivers.
No waiver by either party of any failure or refusal to comply with
any obligations under this Agreement shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
29. Invalidity.
If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of the Agreement, 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 Agreement shall be valid and be enforceable to the fullest
extent permitted by law.
-13-
<PAGE>
30. Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original
for all purposes, but all such counterparts shall together constitute but one
and the same instrument.
31. Deposit in Escrow.
Simultaneously with the execution and delivery of this Agreement,
Purchaser has delivered the Deposit to the Escrow Agent to be held in escrow by
the Escrow Agent on the following terms and conditions:
(a) The Deposit shall be deposited in a money market account
in Citibank, N.A.
(b) The Escrow Agent shall deliver the Deposit to Seller or to
Purchaser, as the case may be, upon the following conditions:
(c) The Deposit to Seller, at the Closing or
(d) the Deposit to Seller, upon receipt of written demand
therefor signed by Seller, stating that Purchaser has defaulted in the
performance of its obligations under this Agreement and Seller has terminated
this Agreement on account of said default of Purchaser, provided, however, the
Escrow Agent shall not honor such demand in either case until not less than 10
days after the date on which the Escrow Agent shall have provided (in the manner
set forth above for the giving of notices) a copy of such demand to Purchaser,
nor thereafter if during such 10-day period the Escrow Agent shall have received
written notice of objection from Purchaser in accordance with the provisions of
this Section; or
(e) the Deposit to Purchaser, upon receipt of written demand
therefor signed by Purchaser, stating that (a) this Agreement has been
terminated and that Purchaser is entitled under this Agreement to the return of
the Deposit (except that Seller may retain $100,000 to the extent permitted in
accordance with Section 12(b) of this Contract), or (b) Seller has defaulted in
the performance of its obligations under this Agreement and Purchaser has
terminated this Agreement on account of said default of Seller; provided,
however, that the Escrow Agent shall not honor such demand in either case until
not less than 10 days after the date on which the Escrow Agent shall have
provided (in the manner set forth above for the giving of notices) a copy of
such demand to Seller, nor thereafter if during such 10-day period the Escrow
Agent shall have received written notice of objection from Seller in accordance
with the provisions of this Section.
(f) Any notice, demand or request to the Escrow Agent shall be
sufficient only if received by the Escrow Agent within the applicable time
period set forth herein, if any. Notices, demands and requests to the Escrow
Agent shall be given to it at 101 Park Avenue, New York, New York 10178,
Attention Mario J. Suarez, Esq. in the manner aforesaid. Notices, demands and
requests from the Escrow Agent to Seller or Purchaser shall be given to them at
their respective addresses first set forth above, in the manner aforesaid.
(g) Upon receipt of a written demand for the Deposit made by
Purchaser or Seller pursuant to Section 31(b), the Escrow Agent shall promptly
provide a copy thereof (in the manner set forth above for the giving of notices)
to the other party. The other party shall have the right to object to the
delivery of the Deposit by providing the Escrow Agent with written notice of
objection within 10 days after the date of the Escrow Agent's providing of such
copy to the other party, but not thereafter. Upon receipt of such notice of
objection, the Escrow Agent shall promptly provide a copy thereof (in the manner
set forth above for the giving of notices) to the party who made the written
demand.
(h) If (i) the Escrow Agent shall have received a notice of
objection as provided for in Section 31(d) and within the time therein
prescribed, or (ii) any other
-14-
<PAGE>
disagreement or dispute shall arise between or among any of the parties hereto
and/or any other persons resulting in adverse claims and demands being made for
the Deposit, whether or not litigation has been instituted, then and in any such
event, the Escrow Agent shall refuse to comply with any claims or demands on it
and continue to hold the Deposit until the Escrow Agent receives either (A) a
written notice signed by both Seller and Purchaser directing the disbursement of
the Deposit, or (B) a final order, which is not (or is no longer) appealable, of
a court of competent jurisdiction, entered in a proceeding in which Seller,
Purchaser and the Escrow Agent are named as parties, directing the disbursement
of the Deposit, in either of which events the Escrow Agent shall then disburse
the Deposit in accordance with said direction. The Escrow Agent shall not be or
become liable in any way or to any person for its refusal to comply with any
such claims or demands until and unless it has received a direction of the
nature described in clause (A) or clause (B) of this Section 31(e). In no event
shall either Seller or Purchaser have any right to prohibit or object to the
Escrow Agent drawing the full amount of the Deposit pursuant to the provisions
of Section 31(b), and the Escrow Agent shall have no liability whatsoever in
connection with such drawing, notwithstanding an objection by either Seller or
Purchaser. If, however, the Escrow Agent is prohibited from drawing the full
amount of the Deposit pursuant to an order of any court, then the Escrow Agent
shall have no obligation to take any action with respect to such order and shall
have no liability for the failure or refusal to draw the full amount of the
Deposit. Notwithstanding the foregoing provisions of this Section 31(e), the
Escrow Agent shall have the following rights:
(i) if the Escrow Agent shall have received a written notice
signed by either Seller or Purchaser advising that a litigation between Seller
and Purchase over entitlement to the deposit has been commenced, the Escrow
Agent may, on notice to Seller and Purchaser, deposit the Deposit with the clerk
of the court in which said litigation is pending;
(j) the Escrow Agent may, on notice to Seller and Purchaser,
take such affirmative steps as it may, at its option, elect in order to
terminate its duties as the Escrow Agent, including, without limitation, the
deposit of the Deposit with a court of competent jurisdiction and the
commencement of an action for interpleader, the costs thereof to be borne by
whichever of Seller or Purchaser is the losing party.
(k) Upon the taking by the Escrow Agent of any action
permitted by this Section, the Escrow Agent shall be released of and from all
liability hereunder except for any gross negligence or willful default. Except
as otherwise provided in this Section, all costs and expenses incurred by the
Escrow Agent in performing its duties as the Escrow Agent, including, without
limitation, attorneys' fees (either paid to retained attorneys or amounts
representing the fair value of legal services rendered to or for itself) shall
be borne by whichever of Seller or Purchaser is the losing party.
(l) The Escrow Agent acts hereunder as a depository only and
is not responsible or liable in any manner whatever for (i) the sufficiency,
correctness, genuineness, collection or validity of any instrument deposited
with it, (ii) the form of execution of such instruments, (iii) the identity,
authority or rights of any person executing or depositing the same, (iv) the
terms and conditions of any instrument pursuant to which the parties may act, or
(v) the loss of the Deposit (due to early presentation for payment or
otherwise), except for its gross negligence or willful default.
(m) The Escrow Agent shall not have any duties or
responsibilities except those set forth in this Section, and shall not incur any
liability in acting upon any signature, notice, request, waiver, consent,
receipt or other paper or document believed by the Escrow Agent to be genuine,
and the Escrow Agent may assume that any person purporting to give it any notice
on behalf of any party in accordance with the provisions hereof has been duly
authorized to do so, except that this will not relieve the Escrow Agent of
liability for its gross negligence or willful default.
(n) The terms and provision of this Section shall create no
right in any person, firm or corporation other than the parties hereto and their
respective successors and assigns, and no third party shall have the right to
enforce or benefit from the terms hereof.
-15-
<PAGE>
(o) Purchaser hereby acknowledges that (i) the Escrow Agent
has represented Seller in connection with this Agreement, (ii) the Escrow Agent
may continue to represent Seller in connection with this Agreement and the
transactions contemplated by this Agreement, and (iii) if any dispute or
litigation arises under this Agreement (including, without limitation, any
dispute or litigation involving the Deposit), the Escrow Agent may represent
Seller in connection therewith.
(p) The Escrow Agent has executed this Agreement for the sole
purpose of agreeing to act as such in accordance with the term of this Section.
32. Reimbursement of Expenses.
If any litigation arises under this Agreement with respect to the
Deposit, notwithstanding any provision of this Agreement to the contrary
(including, without limitation, any provision limiting the liability of Seller
or Purchaser), all reasonable costs and expenses of the litigation (including,
without limitation, the reasonable attorneys and witness fees paid or payable by
the other party) shall be borne by whichever of Seller or Purchaser is the
losing party.
33. ISRA.
Seller shall provide to Purchaser at or prior to Closing either (i)
a Letter of Non-Applicability from the New Jersey Department of Environmental
Protection and Energy ("NJDEPE") stating the Premises is not subject to the
Industrial Site Recovery Act (N.J.S.A.13:1K-6 et. seq.) and the Spill
Compensation and Control Act, N.J.S.A. ss. 58:10-23 et seq. or (ii) a negative
declaration stating that there has been no discharge of hazardous substances or
wastes on the site or that any such discharge has been cleaned up in accordance
with the procedures of the NJDEPE and that no hazardous substances or wastes
remain at the Personal Property.
34. Development Agreements.
34.1 The parties acknowledge that the Premises are subject to a
certain Developer's Agreement dated as of December 28, 1989 by and among The
Township of Washington, The Planning Board of the Township of Washington, and
Seller, as amended. The Purchaser further acknowledges that the Premises is
subject to certain Federal, State and local permits, permissions and approvals
(in this Section, the "Approvals") pertaining to the use and development of the
Premises. All of the Approvals known to Seller are identified in Schedule D to
this Agreement. (The Development Agreements, as amended, and the Approvals
referred to herein are collectively referred to as the "Development
Agreements".)
34.2 On the Closing Date, the Seller will assign to the Purchaser
and the Purchaser will assume from the Seller all of the Seller's obligations
under the Development Agreements and the Seller's obligations under other
development agreements approved by Purchaser, such assignment and assumption to
be evidenced by an instrument captioned "Assignment and Assumption of
Development Agreements and Approvals" in the form set forth in Exhibit E to this
Agreement.
34.3 The Development Agreements shall be a Permitted Encumbrance
under this Agreement.
34.4 The provisions of this Section 34 shall survive the Closing.
35. Financing(1)
35.1 The obligations of Purchaser under this Agreement are subject
to and
- ----------
(1) This Section 35 is only applicable if the prospective sale of the Premises
to a third party provides for a financing contingency.
-16-
<PAGE>
expressly conditioned upon the receipt by Purchaser, on or before
_____*/_______, ____, of a commitment (the "Commitment") for a loan on the
following terms, whether or not conditional upon any factors other than an
appraisal satisfactory to the lender: The principal amount of such loan shall be
at least [TO BE INSERTED BY SELLER] interest shall accrue and be payable on such
loan at an annual rate of no more than eight and 50/100 percent (8.50%); the
term of such loan shall be not less than 20 years, and such loan shall be
secured by a first priority mortgage on the Premises.
35.2 Promptly after the execution and delivery of this Agreement,
Purchaser shall (i) make application for such loan, (ii) furnish accurate and
complete information to the lender, (iii) pay all fees, points and charges
required in connection with such application and loan, (iv) pursue such
application with due diligence, and (v) cooperate in good faith with such lender
to obtain the Commitment. Purchaser shall provide Seller with the name of each
lender to which Purchaser has made application for the loan and otherwise keep
Seller informed and fully apprised of the status of the application. Purchaser
shall give Seller immediate notice of the obtaining of the Commitment.
35.3 If Purchaser does not receive the Commitment on or before
____*____, ____, Purchaser shall have the right to cancel this Agreement by
giving notice to Seller on or before (the "Financing Contingency Date");
provided that, upon receipt of such notice, Seller shall have the right, but not
the obligation, to provide the Commitment itself, by providing the Commitment
and giving notice to Purchaser on or before the Financing Contingency Date. If
Seller provides the Commitment and notice on or before the Financing Contingency
Date, Purchaser shall not have the right to cancel this Agreement and Purchaser
shall purchase the Property in accordance with this Agreement. If Seller does
not provide the Commitment and Notice on or before the Financing Contingency
Date, Seller shall permit the Escrow Agent to refund to Purchaser the Deposit,
whereupon this Agreement shall be deemed cancelled and the parties hereto shall
be released of all obligations and liabilities under this Agreement, except
those that are expressly stated to survive the cancellation or termination of
this Agreement; and neither party shall have any other rights of action against
the other at law or in equity, for damages or for specific performance. If
Purchaser shall not give that notice, Purchaser shall be deemed to have waived
its right to cancel this Agreement pursuant to this Section.
36. Miscellaneous.
(a) The captions or paragraph titles contained in this
Agreement are for convenience and reference only and shall not be deemed a part
of the text of this Agreement.
(b) The word "person" shall mean any natural person,
partnership, corporation or any other form of business or legal entity. If the
Purchaser consists of more than one person, the obligations of the persons
constituting the Purchaser shall be joint and several.
(c) No provision, covenant, representation or warranty
contained in this Agreement shall survive the delivery of the deed except as may
be otherwise expressly provided herein. Acceptance of the deed is an acceptance
of all of the obligations of the Seller hereunder except such as may be
expressly required to survive the Closing under this Agreement.
(d) Each party shall bear responsibility for all costs and
expenses, including attorneys' fees, appraisals, and engineering studies
incurred by each of them in the course of the negotiation, execution, delivery
and performance of this Agreement and all documents, instruments and agreements
entered into or delivered in connection with this Agreement.
(e) By entering into this Agreement neither party intends to
benefit any other person; and no person who is not a party to their Agreement
shall have any right or claim
- ----------
*/ To be inserted by Seller.
-17-
<PAGE>
against a party under, derived from or in any way relating to this Agreement or
any closing document.
(f) The parties have executed a side letter (the "Side
Letter") on the date hereof providing for the reimbursement by Purchaser of
certain costs to be incurred by the Seller in connection with the relocation of
Trafalgar House Property, Inc. Purchaser's obligation under the Side Letter are
independent of Purchaser's rights and obligations under this Agreement and shall
not be affected by Purchaser's cancellation of this Agreement.
(g) TO THE EXTENT PERMITTED BY APPLICABLE LAWS, EACH PARTY
WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ALL CLAIMS IT MAY NOW HAVE OR
WHICH IT MAY HEREAFTER HAVE THE RIGHT TO ASSERT AGAINST THE OTHER PARTY.
-18-
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto on the day and year first above written.
SELLER
TRAFALGAR HOUSE PROPERTY, INC.
By: _______________________________
Print Name: _______________________
Title: ____________________________
PURCHASER
NEXMED (USA), INC.
By: _______________________________
Print Name: _______________________
Title: ____________________________
The Escrow Agent hereby agrees
to the escrow provisions of
Section 31.
MORGAN, LEWIS & BOCKIUS
By: ___________________________
Mario J. Suarez, Partner
-19-
<PAGE>
SCHEDULE A
THE LAND
All that certain plot, piece or parcel of land situate, lying and
being in the Township of Washington, Mercer County, New Jersey, commonly known
as Mercer Corporate Park and designated as Lot 31, Block 41 on the Tax Map of
Washington Township, consisting of 92.6 acres.
<PAGE>
SCHEDULE B
SCHEDULE OF LEASES
1. ____________________________________________________________________
___________________________________________________________________________.
2. ____________________________________________________________________
___________________________________________________________________________.
3. ____________________________________________________________________
___________________________________________________________________________.
<PAGE>
SCHEDULE C
SCHEDULE OF CONTRACTS
The following Contracts are in effect on a month-to-month basis:
1. Contract between Seller and _______________________.
2. Contract between Seller and _________________________.
Seller proposes to cancel these contracts prior to Closing.
<PAGE>
SCHEDULE D
APPROVALS
<PAGE>
EXHIBIT A
FORM OF DEED
This Deed was prepared
by Mario J. Suarez
_____________________
Signature
DEED
This Deed is made as of _____________, 1997, between
TRAFALGAR HOUSE PROPERTY, INC., a Delaware corporation with an
address at 375 Phillips Boulevard, Trenton, NJ 08618
("Grantor"); and
_____________________________________________________________
________________________________________________ ("Grantee").
Transfer of Ownership. The Grantor grants and conveys (transfers
ownership of) forever, unto the Grantee the property described below
(hereinafter "Property"). This transfer is made for the sum of
_______________________________ ($________) The Grantor acknowledges receipt of
this money.
Tax Map Reference. (N.J.S.A. 46:15-2.1) Municipality of
[Robbinsville Township], Mercer County Block ___, Lot ____.
Property. The Property consists of the land together with all
appurtenances and all the buildings, structures and improvements located
thereon. The Property is described on Schedule "A" attached hereto and made a
part thereof.
Covenant by Grantor. The Grantor covenants that the Grantor has done
no act to encumber the Property except for those items set forth on Schedule "B"
attached hereto and made a part hereof. This covenant is called a "covenant as
to grantor's acts" (N.J.S.A. 46:4-6). This promise means that the Grantor has
not allowed anyone else to obtain any legal rights which affect the Property,
except as set forth in Schedule "B".
<PAGE>
Signatures. This Deed is signed by a proper corporate officer of the
General Partner of the Grantor as of the date at the top of the first page.
ATTEST: TRAFALGAR HOUSE PROPERTY, INC.
____________________________ By:________________________________
Name: Name:
Title:
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. W.J.B. Davies, as President of TRAFALGAR HOUSE PROPERTY, INC., who
is personally known by me or has produced a driver's license, as identification
and who did (did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. Y. Joseph Mo as President of NEXMED(USA), INC., who is personally
known by me or has produced a driver's license, as identification and who did
(did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
EXHIBIT B
FORM OF BILL OF SALE
BILL OF SALE dated as of __________ __, 1995, from Trafalgar House
Property, Inc., a Delaware corporation having an office c/o Jones Lang Wootton
USA, One Battery Park Plaza, New York, New York 10004 ("Seller") to
_______________________, a _________ corporation having an office
__________________ ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into a certain Agreement (the
"Purchase Agreement") pursuant to which, among other things, Seller has agreed
to sell to Purchaser, on the terms therein and herein provided, all right, title
and interest, if any, of Seller in and to those certain fixtures, equipment and
other personal property affixed to or appurtenant to the Land and Buildings (as
such terms are defined in the Purchase Agreement) which are not the property of
tenants of the Buildings or of other persons (the "Personal Property"); and
WHEREAS, Seller now desires to sell to Purchaser all of Seller's
right, title and interest, if any, in and to the Personal Property,
NOW, THEREFORE, for ten ($10.00) dollars and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. All capitalized terms used and not defined herein shall have the
meanings accorded to such terms in the Purchase Agreement.
2. Seller does hereby sell, assign, convey, transfer and set over unto
Purchaser and its successors and assigns all of Seller's right, title and
interest, if any, in and to the Personal Property, to have and to hold the same
unto Purchaser and its successors and assigns forever, from and after the date
hereof.
3. This Bill of Sale shall inure to the benefit of, and be binding upon,
the parties hereto and their respective successors and assigns. This Bill of
Sale shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of New Jersey.
<PAGE>
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the
day and year first above written.
SELLER
TRAFALGAR HOUSE PROPERTY, INC.
By: _____________________________
Print Name: _____________________
Title: __________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. W.J.B. Davies, as President of TRAFALGAR HOUSE PROPERTY, INC., who
is personally known by me or has produced a driver's license, as identification
and who did (did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. Y. Joseph Mo as President of NEXMED (USA), INC., who is personally
known by me or has produced a driver's license, as identification and who did
(did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION
OF LEASES
ASSIGNMENT AND ASSUMPTION OF LEASES dated as of ______ __, 1995, by
and between Trafalgar House Property, Inc., a Delaware corporation having an
office c/o Jones Lang Wootton USA, One Battery Park Plaza, New York, New York
10004 ("Assignor") and ________________________, a ______________ corporation,
having an office ___________________ ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee have entered into a certain Agreement
(the "Purchase Agreement") pursuant to which, among other things, Assignor has
agreed to assign to Assignee, and Assignee has agreed to accept and assume, on
the terms therein and herein provided, all leases, agreements to lease,
licenses, concessions and other occupancy agreements affecting the Premises,
together with all supplements, amendments and modifications thereto, all as set
forth on Schedule "A" annexed hereto and made a part hereof (the "Leases"), and
all of Assignor's right, title and interest, as "landlord" thereto; and
WHEREAS, Assignor now desires to assign to Assignee, and Assignee
desires to take by assignment, all of Assignor's right, title and interest in,
to and under the said Leases,
NOW, THEREFORE, for ten ($10.00) dollars and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. All capitalized terms used and not defined herein shall have the
meanings accorded to such terms in the Purchase Agreement.
2. Assignor does hereby sell, assign, convey, transfer and set over unto
Assignee and its successors and assigns all of Assignor's right, title and
interest in, to and under the Leases, to have and to hold the same unto Assignee
and its successors and assigns forever, from and after the date hereof.
3. Assignee hereby accepts the assignment of the Leases and assumes and
agrees to pay and perform the obligations of Assignor first accruing from and
after the date hereof with respect to the Leases.
4. This Assignment and Assumption of Leases shall inure to the benefit of,
and be binding upon, the parties hereto and their respective successors and
assigns. This Assignment and Assumption of Leases shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New
Jersey.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption of Leases as of the day and year first above written.
ASSIGNOR:
TRAFALGAR HOUSE PROPERTY, INC.
By: _____________________________
Print Name: _____________________
Title: __________________________
ASSIGNEE:
NEXMED(USA), INC.
By: _____________________________
Print Name: _____________________
Title: __________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. W.J.B. Davies, as President of TRAFALGAR HOUSE PROPERTY, INC., who
is personally known by me or has produced a driver's license, as identification
and who did (did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. Y. Joseph Mo as President of NEXMED (USA), INC., who is personally
known by me or has produced a driver's license, as identification and who did
(did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION
OF CONTRACTS
ASSIGNMENT AND ASSUMPTION OF CONTRACTS dated as of ______ __, 1995,
by and between Trafalgar House Property, Inc., a Delaware corporation having an
office c/o Jones Lang Wootton USA, One Battery Park Plaza, New York, New York
10004 ("Assignor") and _______________________________, a ______________
corporation having an office at ___________________________________
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee entered into a certain Purchase
Agreement (the "Purchase Agreement"), pursuant to which, among other things,
Assignor agreed to assign to Assignee and Assignee agreed to accept, assume and
perform, on the terms therein and herein provided (1) all service, maintenance,
supply, and management contracts and purchase orders, all guarantees and
warranties and all other contracts and agreements relating to the operation,
maintenance and management of the Premises which Purchaser elects or is required
to assume; said contracts are set forth on Schedule A attached hereto; and
WHEREAS, Assignor now desires to assign to Assignee, and Assignee
desires to take by assignment, all of Assignor's right, title and interest in,
to and under said Contracts,
NOW, THEREFORE, for ten ($10.00) dollars and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. All capitalized terms used and not defined herein shall have the
meanings accorded to such terms in the Purchase Agreement.
2. Assignor does hereby sell, assign, convey, transfer and set over unto
Assignee, and its successors and assigns, all of Assignor's right, title and
interest in, to and under the Contracts to have and to hold the same unto
Assignee and its successors and assigns forever from and after the date hereof.
3. Assignee hereby accepts the assignment of the Contracts and assumes and
agrees to pay and perform the obligations of Assignor first accruing from and
after the date hereof with respect to the Contracts.
4. This Assignment and Assumption of Contracts shall inure to the benefit
of and be binding upon the parties hereto and their respective successors and
assigns. This Assignment and Assumption of Contracts shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New
Jersey.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption of Contracts as of the day and year first above written.
ASSIGNOR:
TRAFALGAR HOUSE PROPERTY, INC.
By: _____________________________
Print Name: _____________________
Title: __________________________
ASSIGNEE:
NEXMED (USA), INC.
By: _____________________________
Print Name: _____________________
Title: __________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. Y. Joseph Mo as President of NEXMED (USA), INC., who is personally
known by me or has produced a driver's license, as identification and who did
(did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. W.J.B. Davies, as President of TRAFALGAR HOUSE PROPERTY, INC., who
is personally known by me or has produced a driver's license, as identification
and who did (did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION
OF DEVELOPMENT AGREEMENTS
ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENTS AND APPROVALS
dated as of ______ __, 1995, by and between TRAFALGAR HOUSE PROPERTY, INC., a
Delaware Corporation having an office c/o Jones Lang Wootton USA, One Battery
Park Plaza, New York, New York 10004 ("Assignor") and NEXMED (USA), INC., a
_____________ corporation with offices at 6087 Triangle Drive, Commerce, CA
90040 ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee entered into a certain Purchase
Agreement (the "Purchase Agreement"), pursuant to which, among other things,
Assignor agreed to assign to Assignee and Assignee agreed to accept, assume and
perform, on the terms therein and herein provided (i) that certain Development
Agreement dated December 28, 1989, as amended; and (ii) the permits, permissions
and variances set forth in an Exhibit to this instrument*/, and all other
agreements, declarations and undertakings relating to the development of the
Premises and the operation of the Premises as a business park which are
assignable by Assignor (collectively the "Development Agreements"); and
WHEREAS, Assignor now desires to assign to Assignee, and Assignee
desires to take by assignment, all of Assignor's right, title and interest in,
to and under said Development Agreements,
NOW, THEREFORE, for ten ($10.00) dollars and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. All capitalized terms used and not defined herein shall have the
meanings accorded to such terms in the Purchase Agreement.
2. Assignor does hereby sell, assign, convey, transfer and set over unto
Assignee, and its successors and assigns, all of Assignor's right, title and
interest in, to and under the Development Agreements.
3. Assignee hereby accepts the assignment of the Development Agreements
and assumes and agrees to pay and perform the obligations of Assignor with
respect to the Development Agreements.
4. This Assignment and Assumption of Development Agreements shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns. This Assignment and Assumption of Development Agreements
shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption of Development Agreements as of the day and year first above
written.
ASSIGNOR:
- ----------
*/ This Exhibit will consist of the "Approvals" identified in Schedule "D" to
the Agreement.
<PAGE>
TRAFALGAR HOUSE PROPERTY, INC.
By: _____________________________
Print Name: _____________________
Title: __________________________
ASSIGNEE:
NEXMED (USA), INC.
By: _____________________________
Print Name: _____________________
Title: __________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. Y. Joseph Mo as President of NEXMED (USA), INC., who is personally
known by me or has produced a driver's license, as identification and who did
(did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
<PAGE>
STATE OF )
: ss.:
COUNTY OF )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State of New Jersey to take acknowledgements, personally
appeared Mr. W.J.B. Davies, as President of TRAFALGAR HOUSE PROPERTY, INC., who
is personally known by me or has produced a driver's license, as identification
and who did (did not) take an oath.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal this ____ day of December, 1997.
____________________
Notary Public
My Commission Expires:
________________________
