Lease Termination and Surrender Agreement, dated March 26, 2021, by and between the Company and 300 CR LLC
Certain confidential information contained in this exhibit was omitted by means of redacting a portion of the text and replacing it with [*****], pursuant to Regulation S-K Item 601(b) of the Securities Act of 1933, as amended. Certain confidential information has been excluded from the exhibit because it is: (i) not material; and (ii) would be competitively harmful if publicly disclosed.
LEASE TERMINATION AND SURRENDER AGREEMENT
THIS LEASE TERMINATION AND SURRENDER AGREEMENT (this “Agreement”) dated as of March 26, 2021 between 300 CR LLC (the “Landlord”) and ADVAXIS INC. (the “Tenant”).
W I T N E S S E T H:
WHEREAS, 300 CRA LLC (Landlord’s predecessor-in-interest) and Tenant are parties to that certain Lease Agreement dated, May 27, 2015, as amended by a First Amendment to Lease Agreement dated February 1, 2016 and as further amended by a Second Amendment to Lease Agreement dated August 29, 2016 (collectively, the “Lease”), relating to a portion of the Building located at 305 College Road East, Princeton, New Jersey (“Premises”), as more particularly described in the Lease;
WHEREAS, the Lease is scheduled to expire on November 30, 2025 (“Scheduled Expiration Date”);
WHEREAS, Tenant requested that the Lease be terminated prior to the Scheduled Expiration Date; and
WHEREAS, Landlord has agreed that Tenant may surrender the Premises prior to the Scheduled Expiration Date and Landlord shall accept the surrender of the Premises on the condition that Landlord has entered into a replacement lease for the Premises and otherwise pursuant to the terms and conditions in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Capitalized Terms. Capitalized terms used herein, but not defined herein, shall have the meanings given to such terms in the Lease.
2. Lease Termination. (a) Subject to the terms of this Agreement, the Lease and the term and estate granted thereunder shall terminate and expire as of March 31, 2021 (“Surrender Date”), as fully and completely as if the Surrender Date were the date originally fixed in the Lease as the termination date, and Tenant shall surrender the Premises to Landlord on the Surrender Date, and Landlord shall accept the Premises on the Surrender Date. After the Surrender Date, Tenant shall have no further rights, obligations or liabilities of any kind or nature under the Lease, except as expressly provided in this Agreement and except as survive the termination of the Lease. Provided that Tenant has complied with all its obligations under this Agreement including payment in full of the Termination Fee, and Tenant is not otherwise in default under the Lease, Landlord for itself and on behalf of its successors, assigns, agents, and attorneys, hereby fully and completely releases and discharges Tenant and its successor, assigns, representatives, employees, officers, directors, owners, members, and managers (collectively, the “Tenant Group”) from any and all actions, causes of action, suits, claims, demands, damages, costs, liabilities, and obligations, whatsoever, in law or in equity, that Landlord had, has or may ever have against the Tenant Group arising out of or otherwise relating, directly or indirectly, to the Lease and/or the Premises except for indemnity obligations which expressly survive termination of the Lease.
(b) Tenant shall continue to comply with and/or perform all of its obligations under the Lease, including, without limitation, the payment of Basic Annual Rent and Additional Rent in accordance with the provisions of the Lease, to and including the Surrender Date.
3. Termination Payment. In consideration for Landlord agreeing to terminate this Lease on the Surrender Date, Tenant shall pay to Landlord the sum of One Million Dollars ($1,000,000) (“Termination Fee”). Any unapplied security deposits held by Landlord on account of the Lease, which security deposits total $182,486.70 as of the date of this Agreement, shall be credited against the Termination Fee. Accordingly, the balance of the Termination Fee (e.g. $817,513.30) shall be paid by Tenant to Landlord upon the Surrender Date (such amount, the “Termination Payment”). All sums shall be paid by wire pursuant to the wire instructions attached to this Agreement.
4. Condition of Demised Premises. On or before the Surrender Date, Tenant shall comply with all of the terms and conditions of the Lease which are applicable to the surrender and termination of the Lease, including, but not limited to, the provisions of Paragraph 26 of the Lease, provided, however, Landlord and Tenant agree that Tenant’s obligation under the Lease to remove certain furniture, fixtures, and equipment from the Premises may be modified pursuant to a separate agreement between Tenant and Cytosorbents Medical, Inc. (“Cytosorbents”), which is attached hereto as Schedule A.
5. Hold Over. In the event that Tenant fails to surrender the Premises to Landlord in accordance with the terms of the Lease and this Agreement on or before the Surrender Date, Landlord shall have all of its rights and remedies set forth in the Lease in connection with such holdover.
6. Encumbrances. Tenant hereby expressly covenants and warrants to Landlord that Tenant has not done or suffered any act or thing whereby the Premises are or may be in any way encumbered.
7. Miscellaneous. This Agreement, together with the Lease, is the complete understanding between the parties and supersedes all other prior agreements and representations concerning its subject matter. To the extent of any inconsistency between the Lease and this Agreement, the terms of this Agreement shall control.
8. Counterparts. This Agreement may be executed and delivered in any number of counterparts, each of which, when so executed and delivered, shall constitute an original, fully enforceable counterpart for all purposes.
9. No Offer. The mailing or delivery of this document or any draft of this document by Landlord or its agent or attorney to Tenant, its agent or attorney shall not be deemed an offer by the Landlord on the terms set forth in this document or draft, and this document or draft may be withdrawn or modified by Landlord or its agent at any time and for any reason. The purpose of this Paragraph 9 is to place Tenant on notice that this document or draft shall not be effective, nor shall Tenant have any rights with respect hereto, unless and until Landlord shall execute this document.
10. Broker. Tenant agrees to indemnify and hold harmless Landlord from and against any threatened or asserted claims, liabilities, losses or judgments (including reasonable attorneys’ fees and disbursements) by any real estate broker or sales representative claiming a commission, finder’s fee or other compensation in connection with this Agreement. The provisions of this Paragraph 10 shall survive the termination of the Lease.
11. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of New Jersey without regard to its conflicts of law provision.
12. Authority. Each Party represents and warrants that its undersigned representative has the right and authority to enter into and execute this Agreement and any related documents on its behalf.
13. CONDITIONAL ON NEW LEASE. TENANT HEREBY ACKNOWLEDGES AND AGREES THAT NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THIS AGREEMENT IS EXPRESSLY CONDITIONED UPON LANDLORD ENTERING INTO A NEW LEASE FOR THE ENTIRE PREMISES WITH CYTOSORBENTS. LANDLORD SHALL HAVE NO OBLIGATION TO ENTER INTO A NEW LEASE WITH CYTOSORBENTS OR ANY OTHER TENANT AND ANY NEW LEASE SHALL BE ACCEPTABLE TO LANDLORD IN ITS SOLE AND ABSOLUTE DISCRETION. IF SUCH NEW LEASE IS NOT MUTUALLY EXECUTED BY LANDLORD AND CYTOSORBENTS BY MARCH 26, 2021, THIS AGREEMENT SHALL AUTOMATICALLY BE NULL AND VOID AND THE LEASE SHALL REMAIN IN FULL FORCE AND EFFECT.
[Signatures continue on next page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
|300 CR LLC|
|By:||300 CR Manager LLC, its Member|
|By:||/s/ Kenneth A. Berlin|
|Name:||Kenneth A. Berlin|
President and Chief Executive Officer,
Interim Chief Financial Officer
LANDLORD WIRE INSTRUCTIONS
SCHEDULE A – AGREEMENT WITH CYTOSORBENTS
[continued on next page]