LEASE AGREEMENT
By and Between
FLEET BANK, N.A.
Landlord
and
PREMIER RESEARCH WORLDWIDE LTD.
as Tenant
Dated as of: May 14, 1999
Property location: ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
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TABLE OF CONTENTS
Page
----
Article 1 - Premises 1
Article 2 - Term, Option 1
Article 3 - Rent; Additional Rent; Security Deposit 1
Article 4 - Possession; Quiet Enjoyment 4
Article 5 - Use of Premises 4
Article 6 - Taxes 4
Article 7 - Insurance 4
Article 8 - Indemnification 5
Article 9 - Utilities and Services: Parking 5
Article 10 - Repairs and Maintenance 6
Article 11 - Alterations 6
Article 12 - Trade Fixtures 6
Article 13 - Mechanic's Liens 7
Article 14 - Damage and Destruction 7
Article 15 - Condemnation 8
Article 16 - Environmental Provisions 8
Article 17 - Signs and Advertisements 9
Article 18 - Entry by Landlord 9
Article 19 - Assignment and Subletting 9
Article 20 - Subordination/Estoppel 10
Article 21 - Default 10
Article 22 - Return of Premises; Holdover 13
Article 23 - Notices 13
Article 24 - Broker's Commissions 14
Article 25 - Limitation of Landlord's Liability 14
Article 26 - Rules and Regulations 14
Article 27 - Recording of Lease 14
Article 28 - Miscellaneous 14
Exhibits
--------
EXHIBIT A - Premises
EXHIBIT B - Tenant Improvements
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LEASE AGREEMENT
SUMMARY OF LEASE TERMS
DATE OF EXECUTION: May 14, 1999
LANDLORD: Fleet Bank, N.A.
TENANT: Premier Research Worldwide Ltd.
BUILDING ADDRESS: ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
PREMISES: Approximately 14,088 rentable square
feet
PERMITTED USE OF PREMISES: General Office Purposes
COMMENCEMENT DATE: May 1, 1999
RENT COMMENCEMENT DATE: ▇▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ DATE: April 30, 2006
ANNUAL RENT Years 1-2 $253,584.00
Years 3 -5 $281,760.00
Years 6-7 $295,848.00
BASE YEAR: 1999
TENANTS PROPORTIONATE SHARE: 14.71%
OPTION: One (1) additional term of five (5)
years.
LANDLORD'S ADDRESS FOR NOTICES: Fleet Bank, N.A.
Corporate Properties Transactions
Group
MA OF 0803
Attn: Director of Real Estate
Transactions
if by U.S. Mail: ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
if by Fedex or other private courier: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
with copy to
Legal Counsel: Fleet Financial Group
Legal Department, MA BO F10C
Attn: Real Estate Legal Counsel
if by U.S. Mail: ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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if by Fedex or other private courier: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LANDLORD'S ADDRESS FOR PAYMENTS: Fleet Bank, N.A.
c/o CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
Department 842
P.O. Box 40,000
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
TENANT'S ADDRESS FOR NOTICES: Premier Research Worldwide Ltd.
with copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
EXHIBITS: The following Exhibits are attached hereto and made a part of this
lease agreement by reference thereto:
Exhibit A - Premises
Exhibit B - Tenant Improvements
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LEASE AGREEMENT
This LEASE AGREEMENT ("Lease"), dated as of this 14 day of, May 1999, is made by
and between Fleet Bank, N.A.("Landlord") with an address of c/o Corporate
Properties, MA OF 0803, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, and Premier
Research Worldwide Ltd. having an address at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇ ("Tenant").
Article 1 - Premises
Section 1.01. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, for the term and subject to the covenants, agreements and
conditions hereinafter set forth, those certain premises consisting of
approximately 14,088 square feet of space, known as (the "Premises"), shown on
Exhibit A attached hereto, and consisting of a portion of the first floor of the
building ("Building") located at ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ (the
Building and the land upon which it is situated hereinafter collectively, the
"Property").
Section 1.02. Landlord hereby also grants to Tenant the non-exclusive
right to use the common areas associated with the Building (the "Common Areas"),
which are defined herein as all areas and facilities outside the Premises
contained in or related to the Building that are provided for the general use
and convenience of Tenant and of other tenants of rental space in the Building
and their respective agents, invitees and customers. The Common Areas may
include, without limitation, pedestrian walkways, restrooms, stairways,
landscaped areas, sidewalks, service corridors, throughways, common lobbies,
elevators and private roads servicing the Building. The Common Areas shall not
include any parking facilities except, that Tenant shall have the non-exclusive
right to use no more than 56 parking spaces, as provided in Section 9.02. The
Landlord makes no representations or warranties as to what shall from time to
time constitute the Common Areas and reserves the right at its sole discretion
to alter and reconfigure the Common Areas provided that Tenant's access to the
Premises is not materially impaired.
Article 2 - Term
Section 2.01. The initial term (the "Initial Term") of this Lease shall
commence on May 1, 1999 (the "Commencement Date") and, subject to earlier
termination or extension as hereinafter provided, end on April 30, 2006 (the
"Expiration Date").
Section 2.02. Provided that this Lease is in full force and effect and
Tenant is not in default of its obligations hereunder either at the time of the
exercise of its rights hereunder or at the commencement of the Additional Term
(as herein defined), Tenant shall have the right to extend the term of this
Lease for one (1) additional five (5) year period (the "Additional Term") at the
rental rate described in Section 3.02 below. The Initial Term and the Additional
Term together shall constitute the "Term". Tenant shall exercise such right by
sending written notice to Landlord no later than September 30, 2005. If Tenant
fails to so notify Landlord, then its rights hereunder shall lapse and be of no
further force and effect. Time shall be of the essence.
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Article 3 - Rent; Additional Rent; Security Deposit
Section 3.01. Commencing August 1, 1999 and continuing through July 31,
2006, Tenant agrees to pay to Landlord annual rent ("Base Rent") for the use of
the Premises, in lawful money of the United States without advance notice,
demand, offset or deduction as follows: During the first and second years of the
Initial Term, Tenant agrees to pay Landlord Base Rent in the amount of Two
Hundred Fifty Three Thousand Five Hundred Eighty Four Dollars ($253,584.00)
payable in equal monthly installments of Twenty One Thousand One Hundred Thirty
Two Dollars ($21,132.00); during the third, fourth and fifth years of the
Initial Term, Tenant agrees to pay Landlord Base Rent in the amount of Two
Hundred Eighty One Thousand Seven Hundred Sixty Dollars ($281,760.00) payable in
equal monthly installments of Twenty Three Thousand Four Hundred Eighty Dollars
($23,480.00); during the sixth and seventh years of the Initial Term, Tenant
agrees to pay Landlord Base Rent in the amount of Two Hundred Ninety Five
Thousand Eight Hundred Forty Eight Dollars ($295,848.00), payable in equal
monthly installments of Twenty Four Thousand Six Hundred Fifty Four Dollars
($24,654.00). All installments of Base Rent shall be payable on the first day of
each month in advance to the Landlord at the following address: Fleet Bank,
N.A., c/o CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Department 842, ▇.▇. ▇▇▇ ▇▇,▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇. During the period May 1, 1999 through July 31, 1999, provided that
Tenant is not in default of its obligations under this Lease at any time during
such period, Tenant's obligation to pay Base Rent and Additional Rent shall be
abated and Tenant's obligation to pay rent shall commence on August 1, 1999
("Rent Commencement Date").
Section 3.02. In the event that Tenant exercises its option to extend
the term of the Lease as provided in Section 2.02, the annual Base Rent for such
Additional Term shall be the then Fair Market Rental Value, as hereinafter
defined, of the Premises, but in no event shall it be less than $295,848.00. The
Fair Market Rental Value of the Premises, as of any date, is defined as the
rental rates then being charged for untenanted premises otherwise similar to the
Premises in Bridgewater, NJ within five (5) miles of the Premises. Tenant shall
have the right to request from the Landlord, nine (9) months prior to the
expiration of the then term of the Lease, Landlord's opinion as to the Fair
Market Rental Value of the Premises, and Landlord shall respond in writing
within thirty (30) days. If Landlord and Tenant have not agreed upon a
designation of a Fair Market Rental Value on or before three months prior to the
commencement of such Additional Term, Landlord and Tenant each shall have the
right, by written notice given to the other, to submit such Fair Market Rental
Value to arbitration. Fair Market Rental Value shall be submitted to arbitration
as follows: Fair Market Rental Value shall be determined by impartial
arbitrators, one to be chosen by Landlord, one to be chosen by Tenant, and a
third to be selected, if necessary, as below provided. The unanimous written
decision of the two first chosen, without selection and participation of a third
arbitrator, or otherwise, the written decision of a majority of three
arbitrators chosen and selected as aforesaid, shall be conclusive and binding
upon Landlord and Tenant. Landlord and Tenant shall each notify the other of its
chosen arbitrator within ten (10) days following the call for arbitration and,
unless such two arbitrators shall have reached a unanimous decision within
thirty (30) days after their designation, they shall notify the President of the
American Arbitration Association (or such organization as may succeed to said
American Arbitration Association) and request it to select an impartial third
arbitrator, who shall be an office building owner, a real estate counselor or a
broker dealing with like types of properties, to determine Fair Market Rental
Value as hereinabove defined. Such third arbitrator and the first two chosen
shall, subject to the commercial arbitration rules of the American Arbitration
Association, hear the parties and their
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evidence and render their decision within thirty (30) days following the
conclusion of such hearing and notify Landlord and Tenant thereof. Landlord and
Tenant shall bear the expense of the third arbitrator (if any) equally. The
decision of the arbitrators shall be binding and conclusive and judgment upon
the award or decision of the arbitrators may be entered in any federal or state
court located in New Jersey; and the parties consent to the jurisdiction of such
court. If the dispute between the parties as to the Fair Market Rental Value has
not been resolved before the commencement of the Additional Term then Tenant
shall pay Base Rent based upon the annual Base Rent in effect immediately prior
to the commencement of the Additional Term in question until either the
agreement of the parties as to the Fair Market Rental Value, or the decision of
the arbitrators, as the case may be, at which time Tenant shall pay any
underpayment to Landlord.
Section 3.03. Increase in Operating Costs and Taxes Over Base Year.
(a) In the event that the amount of Operating Costs (hereinafter defined) during
any calendar year subsequent to the calendar year in which the Commencement Date
occurs (the "Operating Cost Base Year") shall exceed the Operating Base Year
Operating Costs, Tenant shall pay to Landlord, as additional rent (hereinafter
called "Additional Rent"), Tenants Proportionate Share, as hereinafter defined,
of such excess, prorated for the last year of the term of the Lease. "Operating
Costs" shall mean all reasonable costs incurred and expenditures made by
Landlord (including costs and expenditures for outside contractors, and
contractors who may be affiliated with Landlord to the extent that the contracts
are at reasonable rates consistent with the type and quality of the services
rendered) in the operation and management, for repairs, replacements, and
improvements, or for cleaning and maintenance of the Property including, without
limitation, parking areas, driveways and walkways on or related to the Property,
related equipment, facilities and appurtenances, elevators, cooling and heating
equipment owned by Landlord; and electricity deregulation compliance costs.
Operating Costs shall also include any costs directly or indirectly to ensure
that any building system (including, without limitation, elevator equipment,
security devices, alarm systems, HVAC equipment and utility equipment) will
accurately process date and/or time data relating to the year 2000 ("Y2K
Costs"). Notwithstanding the fact that under generally accepted accounting
practices, these Y2K Costs may be treated as capital expenditures, such costs
shall be deemed to be Operating Costs under this section. If less than 95% of
the rentable square feet in the Building is rented or occupied at any time
during the Operating Cost Base Year, Operating Costs for such Base Cost Year
shall be an amount equal to the Operating Costs which would normally be expected
to be incurred had 95% of the Building's rentable square feet been occupied and
had Landlord been supplying services to 95% of the Building's rentable square
feet throughout such Base Cost Year. Operating Costs shall not include the
following items:
(i) Any ground lease rental;
(ii) Costs of capital repairs or capital replacements, capital
improvements and equipment, including those incurred as
electricity deregulation compliance costs and Y2K Costs,
except where such capital repair, improvement, equipment or
replacement results in a net reduction in Operating Costs
after the cost of the improvement or replacement is amortized
and charged to Tenant over the useful life of the improvement
or replacement;
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(iii) Rentals for items (except when needed in connection with
normal repairs and maintenance of the of the Building which
shall be permitted) which if purchased, rather than rented,
under generally accepted accounting principles would
constitute a capital improvement, except where such item
results in a net reduction in Operating Costs after the cost
of the rental is charged to Tenant;
(iv) Costs incurred by Landlord for the repair or replacement of
damage to the Building or its contents cause by fire or other
casualty in excess of any applicable deductible under the
insurance policy covering the loss or damage;
(v) Costs, including permit, license and inspection costs,
incurred with respect to the installation of Tenant's or other
occupants improvements made for Tenant or other occupants in
the Building or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for Tenant
or other occupants of the Building;
(vi) Depreciation, amortization, lender's fees and interest
payments;
(vii) Leasing commissions, attorneys' fees, space planning costs and
other costs and expenses in connection with negotiation of
this Lease and with other present or prospective tenants of
other occupants of the Building;
(viii) Costs in connection with services or other benefits which are
not offered to Tenant but which are provided to another tenant
or occupant of the Building;
(ix) Costs incurred by Landlord due to the violation by Landlord or
any tenant or occupant of Building (other than Tenant) of the
terms and conditions of any lease of space in the Building;
(x) All items and services for which Tenant or any tenant or
occupant of the Building reimburses Landlord (other than
through Tenant's proportionate share of Operating Costs), or
which Landlord provides selectively to one or more tenants or
occupants (other than Tenant) without reimbursement;
(xi) Advertising and promotional expenditures, and the costs of
acquiring and installing signs in or on the Building
identifying the owner of the Building or any tenant or
occupant of the Building other than expenditures for the
repair and maintenance of existing signage;
(xii) Any costs associated with gift taxes, excise taxes, profit
taxes or capital levies;
(xiii) Tax penalties incurred as a result of Landlord's negligence,
inability or unwillingness to make payment when due, not
attributable to Tenant's failure to make payments to Landlord
for such items in accordance with the Lease;
(xiv) Any and all costs arising from the presence of Hazardous
Substances (defined in Article 16) now or hereafter pertaining
to the Building in or about the Building including, without
limitation Hazardous Substances in the groundwater or soil;
7
(xv) Costs to repair defects in any of the tenant improvements
installed by Landlord in the Premises or to maintain the
structural portions of the Building;
(xvi) Capital costs for sculpture, paintings or other objects of
art;
(xvii) Costs (including all related attorney's fees and costs of
settlements, judgments and any payments in lieu thereof)
arising from claims, disputes or potential disputes between
Landlord and other tenants of the Building;
(xviii) Landlord's general corporate overhead;
(xix) Costs of any items for which Landlord is reimbursed by
insurance, or otherwise compensated by parties other than
tenants of the Building;
(xx) Costs for any separate utility meters Landlord may install for
other tenants of the Building, unless the installation is
required by a utility company or government entity;
(xxi) Costs for construction for Landlord to comply with or
penalties assessed against Landlord for Landlord's
noncompliance with, the Americans with Disabilities Act of
1990 (42 U.S.C. sec. 1281-1283);
(xxii) Installation costs of sprinklers, whether required now or in
the future; except where such installation results in a net
reduction in Operating Costs, including but not limited to
insurance costs, after the cost of the installation is
amortized and charged to Tenant over the useful life of the
installation;
(b) In the event that the amount of Property Taxes (hereinafter
defined) which are due to any taxing authority during the term of this Lease, in
any fiscal year subsequent to the year in which Commencement Date occurs (the
"Property Tax Base Year") shall exceed the Property Tax Base Year Property
Taxes, Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate
Share, as hereinafter defined of such excess, prorated for the last year of the
term of the Lease. "Property Taxes" shall mean the sum of the real estate taxes
(including, without limitation, school and town taxes), payments in lieu of
taxes, water assessments, water rents, sewer assessments, governmental levies,
charges, impositions, or agreements, assessments and special assessments imposed
upon the Premises and any rights or interests appurtenant to either, whether
general or special, ordinary or extraordinary, foreseen or unforeseen
(including, without limitation, any tax, excise or fee measured by or payable
with respect to any rent levied against Landlord and/or all or any portion of
the Property). Property Taxes shall include all such amounts levied during the
Term of this Lease even if such taxes are billed after the Expiration Date, and
Tenant's obligations with respect thereto shall survive the termination of this
Lease. If at any time during the Term of this Lease the methods of taxation
prevailing at the commencement of the Term shall be altered so that in lieu of
or as an addition to or as a substitute for the whole or any part of the taxes,
assessments, levies, impositions or charges now levied, assessed or imposed on
real estate and the improvements thereon, there shall be levied, assessed or
imposed (i) a tax, assessment, levy, imposition or charge wholly or partially as
capital levy or otherwise on the rents
8
received therefrom, or (ii) a tax, assessment, levy, imposition or charge
measured by or based in whole or in part upon the Property and imposed upon
Landlord, or (iii) a license fee or charge measured by the rents payable by
Tenant to Landlord, then all such taxes, assessments, levies, impositions or
charges, or the part thereof so measured or based, shall be deemed to be
included within the term "Property Taxes" for the purposes hereof.
(c) For purposes of this Article, the term Tenant's Proportionate Share
is 14.71 (14.71%) percent, calculated as follows: 14,088 square feet (Tenant's
space)/ 95,759 square feet (total number of square feet in the Building).
(d) Landlord shall deliver to Tenant annually written estimates with
respect to the amounts of Additional Rent payable pursuant to this Article 3 and
Tenant shall pay such estimated amount in equal monthly installments along with
the Base Rent due, in accordance with the payment procedure set forth in Section
3.01. Landlord shall have the right to periodically revise the annual estimates
based upon information available to Landlord which indicates a reasonable
likelihood of an increase in the amount of such costs. If Landlord shall fail to
deliver an annual estimate, until such time as Landlord does deliver such annual
estimate Tenant's obligation with respect to the payment of Additional Rent
shall be based upon the most recent annual estimate. Within three (3) months
after the end of each calendar year, Landlord shall deliver to Tenant a
reasonably detailed statement ("Statement") setting forth the actual cost of
items included in Additional Rent for such prior calendar year. If Tenant shall
have paid less than the amount set forth in the Statement, Tenant shall pay the
balance shown on the Statement to Landlord within thirty (30) days after the
date of the Statement. If Tenant shall have paid more than the amount set forth
in the Statement, Landlord shall credit such amount against future payments of
Rent; provided that if the Lease has expired, Landlord shall pay such amount to
Tenant at the time of delivery of the Statement. Landlord's and Tenant's rights
and obligations with respect to such payments shall survive the expiration or
earlier termination of this Lease.
(e) Tenant shall have the right to audit the Statement and shall
exercise such right by giving written notice to Landlord within thirty (30) days
of receipt of the Statement. All documentation and calculation for the audited
period upon which the Statement is based shall be made available to Tenant at
the offices where Landlord keeps such records during normal business hours
within ten (10) days after Landlord receives a written request from Tenant to
make such examination. Upon the completion of such audit, Tenant shall deliver a
copy of the audit to Landlord and the ▇▇▇▇ for the increased Operating Costs for
the audited period shall be adjusted accordingly. If Tenant shall have paid less
than such adjusted amount, Tenant shall promptly pay to Landlord the amount of
such underpayment. If Tenant shall have paid more than such adjusted amount,
Landlord shall credit such amount against future payments of Rents; provided
that if the Lease has expired, Landlord shall pay such amount to Tenant within
thirty (30) days of the completion of the audit. In the event that Tenant
disputes any amounts billed by Landlord pursuant to this Article 3, Tenant must
first pay such total amount billed within the time stipulated in this Lease
before Tenant may gain access to Landlord's records for review purposes.
(f) Additional Rent and Base Rent are collectively referred to in this
Lease as "Rent".
Section 3.04. A late fee of 5% of the overdue amount will be charged
for Rent received after the fifth day following written notice that such Rent is
due. It is understood and agreed by the parties that such untimely receipt of
rent will cause Landlord to incur costs not contemplated
9
by this Lease, the exact amount of which being extremely difficult and
impracticable to determine. The parties hereby agree that this late fee
represents a fair and reasonable estimate of the costs that Landlord will incur
due to late payment of Rent by Tenant. In the event that Tenant does not pay
such Rent within ten (10) days following written notice that such Rent is due,
Tenant shall pay an interest charge ("Interest") for Rent (which shall be deemed
to include Additional Rent). The Interest shall be at a rate of Eighteen percent
(18%) per annum, or alternatively, the maximum amount allowable under the New
Jersey law, whichever is greater provided such amount does not exceed the
maximum amount allowable under state law.
Section 3.05. Upon execution of this Lease, Tenant shall deposit with
Landlord the sum of $126,792.00 (the "Deposit"), which shall be held as a
security for Tenant's performance as herein provided. At the time of execution
of this Lease Tenant may elect instead to furnish to Landlord and thereafter
keep in full force and effect for the term of the Lease, as it may be extended,
an irrevocable letter of credit ("Letter"), in a form and drawn upon a bank
satisfactory to Landlord, in the amount of $126,792.00 in favor of Landlord to
secure the satisfactory performance by Tenant of its obligations under this
Lease. (The Deposit and the Letter, collectively hereinafter "Security
Deposit"). Provided that Tenant shall not have been in default of its obligation
under this Lease at any time during the first year of the Initial Term, on May
1, 2000, the amount of the Security Deposit shall be reduced to $63,396.00 and
the amount, if held as a deposit, so released shall be promptly paid to Tenant.
In no event shall the Security Deposit be considered a measure of liquidated
damages. All or any part of the Security Deposit may be applied by Landlord in
full or partial satisfaction of any default by Tenant. If all or any part of the
Security Deposit is so applied, Tenant upon demand will restore the Security
Deposit to its full amount by the deposit of additional funds to be held as part
of the Deposit or renewal of the Letter so that it is restored to its amount
immediately prior to such application. At the expiration of the Lease and upon
the satisfaction by Tenant of its obligations hereunder the balance of the
Security Deposit, if any, and any accrued interest thereon, will be paid over to
Tenant.
Article 4 - Possession: Quiet Enjoyment
Section 4.01. Landlord shall, on or before the Commencement Date
deliver possession of the Premises to Tenant in their "as is" condition. It is
agreed that the Tenant has had sufficient opportunity to inspect the Premises
and that the Landlord has made no warranties or representations whatsoever with
respect to the physical condition of the Premises or the suitability of the
Premises for Tenant's intended use.
Section 4.02. Provided that Tenant is not in default of its obligations
under this Lease, Landlord covenants and agrees to keep Tenant in quiet
possession and enjoyment of the Premises against the claims of anyone lawfully
claiming by, through or under the Landlord during the Term, and warrants that it
has full power and authority to lease the Premises to Tenant for the Term.
Article 5 - Use of Premises
Section 5.01. Tenant shall continuously use the Premises for general
office purposes ("Permitted Use"), which shall be deemed to include the testing
of computer software written by Tenant, and for no other purpose without the
prior written consent of Landlord, which consent shall be in Landlord's sole
discretion.
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Section 5.02. Tenant, at its own cost and expense, shall comply with
all federal, state, county or local law, ordinance, rule or regulation
applicable to the use and occupancy of the Premises including the Americans With
Disabilities Act (42 U.S.C. sec. 1281-1283) and similar laws, rules and
regulations (collectively "ADA"); provided that Landlord shall comply, at
Landlord's cost, with the requirements of the ADA affecting the Premises and the
property where the Premises are located and Tenant shall comply, at Tenant's
cost, with the requirements of the ADA, compliance with which is necessitated by
Tenant's alterations made to the Premises or the use being made by Tenant of the
Premises.
Article 6 - Taxes
Section 6.01. Tenant shall pay before delinquency all taxes which are
levied or assessed upon Tenant's equipment, furniture, fixtures and Tenant's
other personal property installed or located in or on the Premises.
Section 6.02. Landlord shall pay before delinquency all real property
and/or rental taxes which are now or hereafter imposed upon the Property and/or
the Building by any governmental agency or authority having jurisdiction over
the Property, or any net income, franchise, estate, inheritance or transfer tax
imposed upon the Property.
Article 7 - Insurance
Section 7.01. At all times during the Term, at its own cost and
expense, Tenant shall keep or cause to be kept the following:
(a) commercial general liability and property damage insurance coverage
(sometimes known as broad form comprehensive general liability insurance), which
policy shall include coverage for claims arising from bodily injury, personal
injury and property damage occurring upon, in or about the Premises. The
coverage shall be on an occurrence basis and the combined single limits shall be
not less than $1,000,000;
(b) insurance covering all of Tenant's property and all equipment, fixtures,
motors, machinery, furnishings and furniture installed and owned by Tenant and
used in connection with the Premises insured against loss or damage on a
comprehensive all risk basis;
(c) Workers' Compensation Insurance covering all employees as required by law;
(d) During the course of any construction or renovation of any permitted
improvements on the Premises pursuant to Article 11, appropriate builder's risk
insurance and owner's contingent or protective liability insurance, naming
Landlord as additional insured, covering claims not covered by or under the
terms of the above-mentioned comprehensive general liability insurance, with
combined single limit coverage of $1,000,000, or such higher amount as Landlord
may from time to time reasonably require, and if Tenant shall contract with any
independent contractor for the furnishing of labor, materials or services to
Tenant, Tenant shall require such independent contractor to maintain Workers'
Compensation Insurance covering all persons working on the job site or in
connection with such construction. Tenant agrees to furnish
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Landlord with certificates evidencing all such insurance prior to the
commencement of any such construction or renovations. All such insurance shall
insure the interests of Landlord regardless of any breach or violation by such
independent contractor of warranties, declarations or conditions contained in
such policies or any action or inaction of such independent contractor or of any
other person.
As to all insurance required pursuant to subparagraphs (a) through (d)
above, (i) insurance shall be obtained from responsible companies qualified to
do business and in good standing in the state in which the Premises are located;
(ii) Landlord shall be named as an additional insured on all such policies; and
(iii) the interests of Landlord shall be insured regardless of any breach or
violation by Tenant of warranties, declarations or conditions contained in such
policies or any action or inaction of Tenant or of any other person. Tenant
agrees to furnish Landlord with certificates evidencing all such insurance prior
to the beginning of the term hereof, and annually thereafter, and evidencing
renewal thereof at least thirty (30) days prior to the expiration of any such
policy. Each such policy shall be non-cancelable with respect to the interest of
Landlord without at least twenty (20) days' prior written notice thereof.
Section 7.02. Landlord shall cause to be maintained, throughout the
Term (a) a policy of commercial general liability insurance with respect to the
Property, and (b) policies of insurance covering damage to the Building,
excluding Tenant's fixtures, or equipment, in the amount of the full replacement
value thereof, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief and
"all risk". Landlord shall furnish Tenant, upon written demand therefor, a
certificate evidencing such insurance.
Section 7.03. Tenant and Landlord covenant that with respect to any
insurance coverage carried by either Tenant or Landlord in connection with the
Premises, whether or not such insurance is required by the terms of this Lease,
such insurance shall provide for the waiver by the insurance carrier of any
subrogation rights against Landlord, its agents, servants and employees under
Tenant's insurance policies or against Tenant, its agents, servants and
employees under Landlord's insurance policies. If a party to this Lease is
unable to obtain such a provision in any such insurance policy, then that party
shall cause the other party to be named an additional insured under such
insurance policy.
Article 8 - Indemnification
Section 8.01. Tenant shall hold Landlord harmless from and defend
Landlord against any and all claims or liability for any injury or damage
(including consequential damages and reasonable attorneys' fees) to any person
or property whatsoever (a) occurring in, on, or about the Premises; (b)
occurring in, on or about the Building, when such injury or damage shall be
caused in part or in whole by the act, neglect, fault, or omission of any duty
with respect to the same, by Tenant, its agents, employees, or invitees, or (c)
arising out of Tenant's breach of its obligations under this Lease. The
provisions of this Section 8.01 shall continue in effect and shall survive
(among other events) any termination or expiration of this Lease.
Section 8.02. Landlord shall hold Tenant harmless from and defend
Tenant against any
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and all claims or liability for any injury or damage (including reasonable
attorneys' fees) to any person or property whatsoever (a) occurring in, on, or
about the Premises caused by the act, neglect, fault, or omission of any duty
with respect to the same, by Landlord, its agents, employees, or invitees, and
(b) occurring in, on, or about the Building, unless such injury or damage shall
be caused in part or in whole by the act, neglect, fault, or omission of any
duty with respect to the same, by Tenant, its agents, employees, or invitees.
The provisions of this Section 8.02 shall continue in effect and shall survive
(among other events) any termination or expiration of this Lease.
Article 9 - Utilities and Services: Parking
Section 9.01. Landlord shall, at its sole cost, cause, for normal
office purposes, electricity, water and sewage service to be furnished to the
Premises for the use of Tenant. Tenant shall, at its sole cost and expense, pay
or cause to be paid all charges (including any deposits) for telephone or other
services or utilities furnished to the Premises or to Tenant.
Section 9.02. Tenant shall have the non-exclusive right to park not
more than 56 standard passenger motor vehicles ("Vehicles"), free of charge in
the parking facilities servicing the Building ("Parking Area"). Landlord may
from time to time establish reasonable rules and regulations for the Parking
Area, and Tenant agrees to observe the same upon being advised thereof. Any and
all parking of Vehicles in said Parking Area shall be at the risk of the owner
of the same. Landlord reserves the right to reconfigure and reassign the parking
spaces in the Parking Area.
Section 9.03. Tenant agrees to comply with (a) all applicable laws,
rules and regulations regarding the collection, sorting, separation and
recycling of waste products, garbage, refuse and trash (collectively "Trash")
and (b) any rules and regulations which Landlord in its sole discretion may
institute regarding Trash collection and recycling.
Article 10 - Repairs and Maintenance
Section 10.01. Except as provided in Section 10.02, Landlord shall do
the following:
(a) Maintain in good condition and repair during the Term all
structural components of the Property, including, without limitation, the
foundation, roof, exterior walls of the Building, and the plumbing, electrical,
heating, and air-conditioning systems which are a part of and/or service the
Premises, except for those owned by the Tenant; and
(b) Maintain and keep clean all Common Areas, including the
Parking Area, remove snow therefrom with reasonable dispatch when required,
provide adequate lighting and drainage for the Parking Area during normal
business hours, and maintain all landscaping in a neat and orderly condition;
and
(c) Cause trash and refuse to be removed daily or as often as
is reasonably necessary from the Building so as to avoid unreasonable
accumulations of the same; provided that Landlord shall not be obligated to
accept for disposal any Trash which has not been sorted and separated in
compliance with the provisions of Section 9.03, and in such case, Tenant shall
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be required to arrange for disposal of its Trash at its sole cost and expense,
using a contractor satisfactory to Landlord.
Section 10.02. Tenant, at its sole expense, shall maintain in good
condition and make all interior repairs to the Premises during the Term which
are necessary to keep the Premises in substantially as good condition as on the
Commencement Date, reasonable wear and tear and damage by fire or other casualty
excepted.
Article 11 - Alterations
Section 11.01. Tenant shall make no alterations, installations,
additions or improvements ("Alterations", which shall be deemed to include any
changes to Alterations previously approved by Landlord) of a structural nature
in or to the Premises. Tenant shall make non-structural changes only with the
prior written consent of Landlord; provided Landlord may disapprove any
Alterations or decorative changes which in the sole opinion of Landlord harm the
architectural integrity or appearance of the Building or conflict with the use
of the rest of the Building. Landlord will not unreasonably withhold, delay or
condition its consent to non-structural Alterations costing in the aggregate
less than $10,000.00. If such Alterations are consented to by Landlord, they
shall be made only by contractors or mechanics approved by Landlord at Tenant's
expense. Any such Alterations must comply with applicable laws, including but
not limited to, any and all regulations governing potential asbestos containing
materials. Tenant shall install and maintain the Alterations, interior
decoration and appearance in a first class manner. At the time of consenting to
Alterations, Landlord shall notify Tenant whether such Alterations shall be
required to be removed at the expiration or earlier termination of this Lease.
Any Alternations not removed shall become the property of Landlord. If Tenant is
required to remove such Alterations, Tenant shall restore the Premises to their
condition immediately prior to the making of such Alterations, reasonable wear
and tear excluded.
Section 11.02. If Landlord elects to require Tenant to remove such
Alterations, and such removal and restoration of the Premises are not effected
by Tenant by (i) the expiration or earlier termination of this Lease; or (ii)
within thirty (30) days from the date of notice by Landlord requiring the same,
whichever is later, Tenant shall be deemed to be holding over under Article 22,
Section 22.03 of this lease until such time as the Alterations are removed and
the Premises restored to its prior condition, and shall remain liable for any
and all consequential damages sustained by Landlord as a result.
Section 11.03. Tenant shall indemnify and hold Landlord harmless from
any loss, cost or expense (including reasonable attorneys' fees) incurred by
Landlord as a consequence of any defects in design, materials or workmanship
resulting from Tenant's Alterations.
Section 11.04. Tenant shall reimburse Landlord for Landlord's
reasonable costs for reviewing and approving or disapproving plans and
specifications for Alterations by Tenant, including but not limited to,
reasonable fees for engineers, architects and/or attorneys retained by Landlord
for these purposes. Such reimbursement shall be made by Tenant to Landlord
within thirty (30) days of Landlord's invoicing of Tenant.
Section 11.05. If any change ("Change") to any approved Alteration
increases the cost of
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any work to be performed by Landlord ("Landlord's Work") pursuant to this Lease,
Landlord shall provide Tenant with invoices documenting and evidencing such
increased costs and Tenant shall reimburse Landlord for such increased costs
within ten (10) days after receipt thereof. Such costs shall include the actual
costs incurred by Landlord, including but not limited to, reasonable fees for
engineers and architects retained by Landlord for these purposes, to revise
plans and specifications for Landlord's Work to indicate work resulting from an
approved Change, and to construct the Landlord's Work shown on such revised
plans to the extent that such costs exceed the costs that Landlord would have
had to pay to cause the Landlord's Work to be constructed (as reflected by
Landlord's original plans if such Change had not been made). If such Change
delays Landlord's completion of Landlord's Work, such delay period shall not be
considered when determining the Commencement Date defined in Section 2.01.
Section 11.06. Landlord and Tenant contemplate that at the commencement
of the Term of this Lease Tenant will undertake certain Alterations shown on
Exhibit B attached hereto and made a part hereof ("Initial Alterations"). By
execution of this Lease the Initial Alterations are deemed approved. The Initial
Alterations shall be subject to all of the provisions of this Article 11;
provided that Tenant shall not be required to remove them at the expiration or
earlier termination of the Term. Landlord shall have no financial obligation
with respect to the Initial Alterations except that Landlord shall reimburse
Tenant up to, but not more than, $281,760.00 ("Cash Allowance") of the cost of
the Initial Alterations. Such sum has been calculated at a rate of $20.00 per
square foot of area of the Premises. Provided that Tenant is not in default of
it's obligations under this Lease, such sum shall be paid to Tenant within 30
days of presentation to Landlord of (a) the certificate of occupancy, if
applicable, or such other evidence of completion of the work as is satisfactory
to Landlord and (b) third party invoices and mechanics lien waivers evidencing
completion of and payment for the work for which reimbursement is sought.
Article 12 - Trade Fixtures
All equipment (other than exhaust vents and fans and heating, air
conditioning and ventilating system), business and office machines, furniture
and other items of personal property (except Alterations including without
limitation walls, floors, ceilings, wiring, plumbing, sewerage, and water pipes
and lines) owned or installed by Tenant in the Premises at its expense shall
remain the property of Tenant, (and any taxes thereon and risk of loss shall be
borne by Tenant, and may be removed by Tenant at any time provided that Tenant
shall at its expense, repair any damage, holes or openings caused or occasioned
by such removal whether by Tenant or Landlord as hereafter provided and provided
that during the Term such removal does not adversely affect the appearance of
the Premises). Any such personal property of the Tenant left upon the Premises
at the end of the Term may, at the election of Landlord and after reasonable
notice to Tenant, (a) be removed, sold, stored or discarded at Tenant's expense;
or (b) be deemed to have been abandoned and to belong to the Landlord.
Article 13 - Mechanic's Liens
Tenant shall keep the Property free from and promptly remove any
mechanic's liens and indemnify, defend, and hold Landlord harmless from any and
all liability or expense of any kind and description which may arise out of or
be connected in any way with Tenant's
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Alterations. If any mechanic's or other lien shall at any time be filed against
the Premises by reason of labor, services or materials performed or furnished to
Tenant, Tenant shall cause the same to be discharged of record by payment or the
posting of a bond, to the satisfaction of Landlord within ten (10) days of the
filing of the lien. If Landlord shall incur any fees (including attorneys' fees)
by reason of the filing of any such lien, Tenant shall be obligated for the
payment of such fees. If Tenant shall fail to cause such lien to be so
discharged or bonded after being notified of the filing thereof, then, in
addition to any other right or remedy of Landlord, Landlord may bond or
discharge the same by paying the amount claimed to be due or posting a bond, and
the costs incurred by Landlord, including reasonable attorneys' fees, together
with interest thereon at the rate of 18% per annum, shall be due and payable by
Tenant to Landlord as Additional Rent. Landlord's consent to the construction of
Alterations shall not be deemed to be such consent of the Landlord or
acknowledgment that its estate is beholden for the payment for such Alterations
as would bind the interest of the Landlord under applicable mechanic's lien law.
Article 14 - Damage and Destruction
Section 14.01. Should a substantial portion of the Premises or of the
Building be damaged by fire or other casualty, Landlord may elect to terminate
this Lease by giving written notice to Tenant within sixty (60) days of such
fire or casualty, specifying a termination date, and this Lease shall terminate
as of the termination date specified. If Landlord does not elect to terminate
this Lease, then it shall give notice to Tenant within such sixty-day period of
the period required to complete the restoration and repair of the Premises. When
such fire or other casualty renders the Premises substantially unsuitable for
the' intended use, a just and proportionate abatement of Base Rent shall be
made, and Tenant may elect to terminate this Lease if:
(a) Landlord fails to give written notice within sixty (60) days of
such fire or casualty of its intention to restore the Premises, or
(b) Landlord advises Tenant in such notice that the period required for
restoration and repair exceeds 270 days, or
(c) Landlord fails to restore the Premises to a condition substantially
suitable for their intended use within the period set forth in its notice to
Tenant.
If Tenant elects to so terminate this Lease, Tenant shall give a written notice
of termination to Landlord within thirty (30) days following the lapsed time
period described in Section 14.01(a) or (b), as applicable, specifying a
termination date, and this Lease shall terminate as of the termination date.
Section 14.02. Landlord shall not be required to repair any injury or
damage by fire, or other casualty, or to make any repairs or replacements, of
any Alterations installed in the Premises by Tenant; and Tenant shall, at
Tenants sole cost and expense, repair and restore its portion of such
Alterations.
Section 14.03. In the event the Premises or the Building is totally
destroyed or rendered wholly unusable for Tenant's Permitted Use, this Lease
shall terminate and Tenant shall be liable for Rent only up to the date of such
total destruction.
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Article 15 - Condemnation
If a substantial portion of the Building is taken or condemned under
the power of eminent domain, or by purchase in lieu of such taking or
condemnation, Landlord may elect to terminate the Lease effective as of the date
of such taking, condemnation or purchase by giving written notice to Tenant. If
the Premises or Tenant's right of access thereto are taken or condemned under
the power of eminent domain, or by purchase in lieu of such taking or
condemnation, and as a result thereof the use and enjoyment of the Premises by
Tenant are materially impaired, Tenant may, at its sole option, but without
prejudice to any rights and claims which it may otherwise have on account of
such taking, condemnation or sale, terminate this Lease effective as of the date
of such taking, condemnation or purchase by giving written notice to Landlord at
any time prior to the effective date of such taking, condemnation or purchase.
If either Landlord or Tenant do not elect to terminate this Lease, the Rent
reserved for the remainder of the Term shall be reduced in proportion to the
portion of the Premises taken, condemned or sold, having due regard to the
nature and extent of the injury caused thereby to the Premises and to Tenant's
Permitted Use thereof, and such reduction in Rent shall be without prejudice to
any rights and claims which Tenant may otherwise have on account of such taking
or condemnation or sale. Landlord reserves to itself, and Tenant assigns to
Landlord, all rights to damages accruing on account of any taking under the
power of eminent domain or by reason of any act of any public or quasi-public
authority for which damages are payable. Tenant agrees to execute such
instruments of assignment as may be reasonably required by Landlord in any
proceeding, except it is agreed and understood, however, that Landlord does not
reserve to itself, and Tenant does not assign to Landlord, any damages
specifically payable for Tenant's trade, fixtures, furniture, moving expenses,
and/or Tenant's leasehold improvements.
Article 16 - Environmental Provisions
Section 16.01. Tenant shall not cause or permit any Hazardous Substance
(as defined below) to be brought upon, kept, disposed of or used in, on or about
the Premises by Tenant, its agents, employees, contractors, or invitees.
Section 16.02. As used in this Article 16, the term "Hazardous
Substance" means any substance which is toxic, ignitable, reactive, or corrosive
and which is regulated by any local government, the State of New Jersey, or the
United States government.
Section 16.03. Tenant represents, warrants and covenants that is has
obtained, is in compliance with, and will continue to comply with all federal,
state and local environmental law permits, licenses and other authorizations
which are required under all environmental laws and regulations, including laws
relating to emission, discharges releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, air, surface water,
groundwater, or land), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes.
Section 16.04. Tenant shall immediately notify the Landlord in the
event of any spill,
17
pollution or contamination affecting the Premises from a Hazardous Substance,
and shall immediately forward to the Landlord any notices or correspondence
relating to such matters received or sent by Tenant.
Section 16.05. Tenant shall immediately contain and remove at its sole
cost and expense any Hazardous Substance found on the Premises if caused by
Tenant or anyone acting under Tenant; and such work must be done in compliance
with all applicable laws.
Section 16.06.Tenant will indemnify, defend, and hold Landlord harmless
from and against any claim, cost, damage (including without limitation
consequential damages), expense (including without limitation reasonable
attorneys' fees and expenses), loss, liability, or judgment now or hereafter
arising as a result of any claim for environmental cleanup costs, any resulting
damage to the environment and any other environmental claims against Tenant,
Landlord, the Premises, the Building or the Property relating to any act or
failure to act by Tenant or anyone claiming under Tenant. The provisions of this
Section 16.06 shall continue in effect and shall survive (among other events)
any termination or expiration of this Lease.
Section 16.07. Landlord will indemnify, defend and hold Tenant harmless
from and against any claim, cost, damage (including without limitation
consequential damages), expense (including without limitation reasonable
attorneys' fees and expenses), loss, liability, or judgment now or hereafter
arising as a result of any claim associated with any required clean-up or other
actions arising from the existence, release or threatened release of Hazardous
Material on, in or under the Premises unless such Hazardous Materials are
released by Tenant, its agents or contractors. Without limiting the foregoing,
in the event that any such Hazardous Materials are determined to be located on
the Property, Landlord shall, at Landlord's sole cost, promptly take all steps
necessary to comply with all applicable laws and regulations and the provisions
of this Lease. The provisions of this Section 15.03 shall survive any
termination or expiration of this Lease.
Article 17 - Signs and Advertising
Tenant shall not place any sign on or around the Premises without the
advance written consent of Landlord, which consent shall be in Landlord's sole
discretion. Notwithstanding the foregoing, and subject in each instance to the
advance written consent of Landlord, which shall not be unreasonably delayed,
conditioned or withhold, Tenant at its sole expense may (a) place its name on
its entry door, and (b) install a freestanding directional sign. Tenant's name
shall be placed in the building directory in the west lobby.
Article 18 - Entry by Landlord
Landlord and its agents shall have the right to enter into and upon the
Premises at all reasonable times for the purpose of examining and exhibiting the
same, for making any necessary repairs or alterations thereto, for the purpose
of supplying any service, or building maintenance to be provided by Landlord
hereunder, provided, however, that Landlord shall advise Tenant a reasonable
time in advance thereof, and, provided further, that the operations of Tenant
shall not be interfered with unreasonably thereby. Notwithstanding the
foregoing, in the
18
event of an emergency and if despite its reasonable efforts the Landlord is
unable to give advance notice to Tenant, Landlord shall have the right to enter
into the Premises to make emergency repairs and shall thereafter notify Tenant
of such entry as soon as reasonably practicable thereafter.
Article 19 - Assignment and Subletting
Section 19.01. Tenant will not assign, sublet, permit another to
occupy, pledge, mortgage, or otherwise transfer this Lease or the whole or any
part of the Premises without in each instance having first received the express
written consent of Landlord which will not be unreasonably withheld or delayed
provided that the person(s) or entity to whom the Premises are assigned or
sublet is not a Financial Services Institution, otherwise, consent shall be in
Landlord's sole discretion. For purposes of this provision any entity engaged in
any of the following activities shall be deemed to be a Financial Services
Institution: (a) operation of a commercial bank, savings bank, savings and loan
association, credit union, a mutual or thrift association or any other
institution that accepts deposits of money, (b) operation of any sort of
automated teller machine or cash dispensing machine, (c) operation of a stock
brokerage firm, (d) operation of a mortgage broker, (e) operation of a finance
company, mortgage company or any other institution that lends money, (f)
investment banking, and (g) insurance brokerage. In any case where Landlord
shall consent to an assignment or subletting, Tenant shall remain primarily
liable for Tenant's obligations hereunder. In the event that the Premises are
sublet or this Lease is assigned or another is permitted to occupy the Premises,
Tenant shall pay to Landlord fifty percent (50%) of all net payments (gross rent
exclusive of brokerage commissions) in excess of the rental rates and other
amounts required to be paid by Tenant pursuant to this Lease. It shall be a
condition to the validity of any assignment or subletting that the terms of any
sublease or assignment shall not be more favorable than the terms of this Lease
and shall not be more favorable than the terms which Landlord is then offering
for new rental space in the Building or for existing rental space in the
Building which will be coming available. The transfer of a majority interest in
the capital stock of any corporate Tenant or a majority of the interest in any
partnership Tenant, however accomplished, and whether in a single transaction or
in a series of related or unrelated transactions, shall be deemed an assignment
of this Lease. Notwithstanding the foregoing, Tenant shall have the right to
sublease all or a portion of the Premises, to permit occupancy of all or a
portion of the Premises, and to assign its interest in this Lease to any
Affiliated Entity, as hereinafter defined, which is not a Financial Services
Institution, without obtaining prior Landlord's consent, and any such transfer
shall not be subject to the provisions of Section 19.02. "Affiliated Entity" for
purposes of this provision is defined as (a) any entity which controls, is
controlled by, or is under common control with, Tenant, or (b) any entity that
succeeds to Tenant's business by merger, consolidation, reorganization or other
form of corporate reorganization. Landlord acknowledges that the Premises will
be occupied by DLB Systems and that DLB Systems is an Affiliated Entity of
Tenant.
Section 19.02. Landlord, shall at its option have the right to
recapture the portion of the space made available by Tenant for sublease or
assignment. Tenant shall give notice to Landlord of each instance where it
intends to so transfer its interest and of the terms of the proposed
transaction, and Landlord shall have thirty (30) days to respond. In the event
Landlord elects to
19
recapture such space, such recapture shall be effective as of the date upon
which the proposed sublease or assignment would have been effective and Tenant's
rent shall be proportionately abated as of that date without the execution of
any further instrument or document by Landlord and Tenant. In the event Landlord
elects against recapture, Tenant may proceed with the intended transfer subject
to Section 19.01 hereinabove. If such transfer fails to occur, Tenant shall
remain obligated to notify Landlord of any future proposed transfer.
Section 19.03. Tenant shall reimburse Landlord for Landlord's
reasonable costs for reviewing and approving or disapproving of any assignment,
sublet, occupancy, pledge, mortgage, or other transfer proposed by Tenant,
including but not limited to, reasonable fees for accountants and/or attorneys
retained by Landlord for these purposes. Such reimbursement shall be made by
Tenant to Landlord within thirty (30) days of Landlord's invoicing of Tenant.
Section 19.04. If Tenant (which term for the purposes of this Section
19.02 shall include the authorized representative of Tenant's estate in
Bankruptcy) assumes this Lease and proposes to assign the same pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. ss. 101 et seq., or any future
statute in amendment or in substitution thereof (the "Bankruptcy Code") to any
person or entity who shall have made a bona fide offer to accept an assignment
of this Lease on terms acceptable to the Tenant, then notice of such proposed
assignment, setting forth (i) the name and address of such person or entity,
(ii) all of the terms and conditions of such offer, and (iii) adequate assurance
to be provided Landlord to assure such person's or entity's future. performance
under the Lease, including, without limitation, the assurance referred to in
Section 365 (b) (3) of the Bankruptcy Code, shall be given to Landlord by Tenant
no later than twenty (20) days after receipt by the Tenant, but in any event no
later than ten (10) days prior to the date that Tenant shall make application to
a court of competent jurisdiction for authority and approval to enter into such
assignment and assumption. Landlord shall thereupon have the prior right and
option, to be exercised by notice to Tenant at any. time prior to the effective
date of such proposed assignment, to accept an assignment of this Lease upon the
same terms and conditions and for the same consideration, if any, as the bona
fide offer made by such person or entity, less any brokerage commissions which
may be payable out of the consideration to be paid by such persons or entity for
the assignment of this lease.
In the event this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, then any and all monies or other
consideration paid, payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to Landlord, shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant or of
the estate of Tenant within the meaning of the Bankruptcy Code. Any and all
monies or other considerations constituting Landlord's property under the
preceding sentence not paid or delivered to Landlord shall be held in trust for
the benefit of Landlord and shall be promptly paid to or turned over to
Landlord.
Any person or entity to which this Lease is assigned, pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall, upon demand, execute and
deliver to Landlord an instrument confirming such assumption.
20
Article 20 - Subordination, Estoppel
Section 20.01. This Lease will be subject and subordinate to any
mortgage of the Property now existing or hereafter executed by Landlord or its
successors and assigns. Such subordination is automatic and is effective without
any further act of Tenant, but Tenant hereby agrees from time to time on request
from Landlord to execute and deliver any instruments that may be required by any
lender to confirm the subordination provided for herein. It is a condition of
the effectiveness of any subordination agreement as to all mortgages which now
or hereafter affect the Property, that the mortgagee of any such mortgage shall
execute a commercially reasonable non-disturbance agreement which provides that
in the event of foreclosure such mortgagee, its successors and assigns, will
recognize Tenant's rights under this Lease and shall not disturb Tenant's
possession hereunder. Any mortgagee may elect that this Lease shall have
priority over its mortgage, and upon notification of such election by such
mortgagee to Tenant, this Lease shall be deemed to have priority over such
mortgage whether this Lease is dated prior to or subsequent to the date of such
mortgage. Tenant hereby appoints Landlord, with full power of substitution, as
Tenant's attorney-in-fact (which appointment shall be irrevocable and shall be
deemed to be coupled with an interest) to execute and deliver any such
instrument for and in the name of Tenant.
Section 20.02. Tenant, within twenty (20) days after written request
from Landlord shall deliver to Landlord and any proposed purchaser or lender a
written certificate stating whether this Lease is in full force and effect, if
any amendments have been executed, if any defaults exist by Landlord or by
Tenant hereunder and the nature of any alleged default, if Tenant is then
claiming any offsets, counterclaims or defenses to this Lease, and any other
matter which may be reasonably requested.
Article 21 - Default
Section 21.01. If any of the following shall occur, Tenant shall be
deemed in default of this Lease: (a) Tenant shall fail to pay any Rent or other
sum when and as the same becomes due and payable and such failure shall continue
for more than ten (10) days following receipt of written notice that the same is
due; (b) if within the twelve month period immediately preceding, Tenant shall
have failed on two (2) occasions to pay any Rent or other sum when and as the
same became due and payable, and Tenant shall again fail to pay any Rent or
other sum when and as the same becomes due and payable; (c) Tenant shall fail to
perform any of the other duties required to be performed by Tenant under this
Lease or otherwise breaches this Lease and such failure or breach shall continue
for more than thirty (30) days after receipt of written notice thereof from
Landlord; provided, however, that if such cannot reasonably be cured within such
thirty (30) day period, Tenant shall have such additional time, but not more
than sixty (60) days, as is reasonably necessary to cure such breach; (d) Tenant
shall make a general assignment for the benefit of creditors, admit in writing
its inability to pay its debts as they become due, file a petition in
bankruptcy, have an order of relief entered against it, or file or have filed
against Tenant a petition seeking any reorganization, receivership, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation.
Section 21.02. In the event of default, to the extent not prohibited by
applicable law Landlord, upon written notice of termination to Tenant, and with
or without process of law (with
21
force if necessary, provided Tenant has vacated the Premises) may enter into and
upon the Premises or any part thereof or mail a notice of termination addressed
to Tenant at the Premises, and repossess the same as of Landlord's former estate
and expel Tenant and those claiming through or under Tenant and remove its and
their effects (forcibly, if necessary) without being deemed guilty of any manner
of trespass and without prejudice to any remedies which might otherwise be used
for arrears of rent or prior breach of covenant, and upon such entry or mailing
as aforesaid this Lease shall terminate; Tenant hereby waiving all statutory
rights (including without limitation rights of redemption, if any, to the extent
such rights may be lawfully waived) and Landlord, without notice to Tenant, may
store Tenant's effects, and those of any person claiming through or under Tenant
at the expense and risk of Tenant, and, if Landlord so elects, may sell such
effects at public auction or private sale and apply the net proceeds to the
payment of all sums due to Landlord from Tenant if any, and pay over the
balance, if any, to Tenant.
Section 21.03. Upon the termination of this Lease, Tenant shall
nevertheless remain liable for all Rent then due and payable hereunder as of the
date of the termination of this Lease, together with all damages due or
sustained by Landlord prior to such termination or arising as a result of events
or conditions occurring or in existence during the Term hereof and prior to or
after such termination, and all reasonable costs, fees and expenses incurred by
Landlord in pursuit of, or in the collection of its remedies hereunder or under
any law, or in leasing or attempting to lease all or any portion of the Premises
to others from time to time (including, without limitation, all repossession
costs, brokerage commissions, reasonable attorney's fees in connection with the
foregoing matters, and all costs of such alterations, repairs, and decorations
as Landlord, in its reasonable judgment, considers necessary or advisable in
connection with such reletting) (all such rent, damages, costs, fees and
expenses being referred to herein as the "Termination Damages") and, in addition
thereto, additional damages (the "Liquidated Damages"), which, at the election
of Landlord, shall be either of the following:
(a) an amount or amounts equal to all Rent which, but for
termination, would have been payable to Landlord over the remainder of
the Term, reduced by the amount of Rent, if any, which the Landlord
shall actually receive from time to time during such period from others
to whom the Premises may be rented from time to time. The Landlord
shall not be obligated to attempt to collect any rental or other
payment obligation from any other person renting all or any portion of
the Premises by litigation or otherwise. Such Liquidated Damages shall
be computed and payable in monthly installments, with interest on any
amount in arrears at the rate of two percent (2%) per annum in excess
of the Fleet Prime Rate, in arrears, on the first day of each calendar
month following termination of the Lease and shall continue to become
due and payable in monthly installments until the date on which the
Term would have expired but for such termination; and any and all
amounts due and payable hereunder, including any amount in arrears,
shall be a continuing liability of Tenant thereafter, and interest
thereon shall accrue at the rate of two percent (2%) per annum in
excess of the Fleet Prime Rate, until Tenant shall discharge same by
payment to Landlord of the amount due, and any suit or action brought
from time to time to collect any such Liquidated Damages for any month
or months shall not in any manner prejudice the right of Landlord to
collect any Liquidated Damages for any subsequent month or months by a
similar proceeding; or
(b) an amount equal to the present value (as of the date of
such termination) of all Rent which, but for termination of this Lease,
would have become due during the
22
remainder of the Term, reduced by an amount equal to the fair rental
value of the Premises over the remainder of the Term, as determined by
an independent real estate appraiser named by Landlord, in which case
such Liquidated Damages shall be payable to Landlord in one lump sum on
demand made by Landlord at any time and shall bear interest at the rate
of two percent (2%) per annum in excess of the Fleet Prime Rate from
the date of termination until paid. For purposes of this clause (ii),
present value shall be computed by the application of a discount rate
equal to the discount rate in effect at the Federal Reserve Bank
nearest to the location of the Premises as of the date of
determination.
Section 21.04. In addition, if this Lease is terminated, Landlord may,
but shall have no obligation to, relet the Premises or any part thereof, alone
or together with other premises, for such term or terms (which may be greater or
less than the period which otherwise would have constituted the balance of the
Term) and on such terms and conditions (which may include concessions or free
rent and alterations of the Premises) as Landlord, in its uncontrolled
discretion, may determine, but Landlord shall not be liable for, nor shall
Tenants obligations hereunder be diminished by reason of, failure by Landlord to
relet the Premises or any failure by Landlord to collect any rent due upon such
reletting, and Tenant, to the extent Tenant may lawfully do so, hereby waives
all right to require Landlord to relet the Premises.
Section 21.05. Nothing contained in this Lease shall however, limit or
prejudice the right of Landlord to prove for and obtain in proceedings under any
federal or state laws, including but not limited to laws relating to bankruptcy,
insolvency or reorganization by reason of the termination of this Lease, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which the damages are to be
proved, whether or not the amount be greater than the amount of the loss or
damages referred to above.
Section 21.06. Any and all rights and remedies which Landlord may have
under this Lease, and at law and equity, shall be cumulative and shall not be
deemed inconsistent with each other, and any two or more of all such rights and
remedies may be exercised at the same time insofar as permitted by law.
Section 21.07. The waiver by either party of any default shall not be
deemed to be a waiver of any subsequent default under the same, or under any
other term, covenant or condition of this Lease. The subsequent acceptance of
any Rent by Landlord shall not be deemed to be a waiver of any preceding default
by Tenant under any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding default at the time of acceptance of such
Rent. The acceptance of a partial payment of any Rent installment by Landlord
shall not be deemed to be a waiver of the default occasioned by the Tenant's
failure to pay such installment in its entirety.
Article 22 - Return of Premises: Holdover
Section 22.01. At the expiration or other termination of the Term,
Tenant will remove from the Premises its property and that of all claiming under
it, will repair any damage caused by such removal, and will peaceably yield up
to Landlord the Premises in as good condition in all
23
respects as the same were at the commencement of this Lease, except for ordinary
wear and tear, damage by the elements, by any exercise of the right of eminent
domain or by any public or other authority, or damage not caused by Tenant and
with respect to which Tenant is not required to maintain insurance hereunder.
Section 22.02. If Tenant remains in possession of the Premises after
the expiration of the Term and continues to pay Rent without any express
agreement as to holding over, Landlord's acceptance of Rent will be deemed an
acknowledgment of Tenant's holding over upon a month- to-month tenancy, subject,
however, to all of the terms and conditions of this Lease except as to the Term
and any option to renew or extend the Lease and except that the monthly Rent
shall be 150% of the Rent paid for the last month of the Term.
Section 22.03. If Tenant remains in possession of the Premises after
the expiration of he Term, as such may be extended hereunder, whether as a
month-to-month tenant pursuant to Section 22.02 or otherwise, and Landlord at
any time declines to accept the Rent at the rate specified herein, Tenant's
holding over thereafter will be deemed to be as a tenant-at-sufferance. Tenant
will nevertheless be subject to all of the terms and conditions of this Lease
except as to the Term hereof and any option to renew and except that during the
first two months of so remaining in possession Tenant will pay a monthly fee in
an amount equal to 150% of the Rent paid for the last month of the Term and
thereafter an amount equal to 200% of the Rent paid for the last month of the
Term for Tenant's use and occupancy of the Premises and will pay all loss, cost
or damage (including attorneys' fees) sustained by Landlord on account of such
holding over. Landlord's acceptance of any payments pursuant to this Section
22.03 shall not be deemed to create a landlord-tenant relationship between the
parties.
Article 23 - Notices
All notices required to be given herein shall be given by (a) certified
mail, postage prepaid, return receipt requested, (b) by service in hand with
receipt, (c) by facsimile with an original copy to follow by recognized
overnight delivery service for which proof of delivery is available, or (d) by
recognized overnight delivery service for which proof of delivery is available,
to the following addresses:
Landlord: LEGAL Fleet Bank, N.A.
NOTICE: Corporate Properties
Transactions Group
MA OF 0803
Attn: Director of Real Estate
Transactions
if by U.S. Mail: ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
if by Fedex or other private courier: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy, which shall
not be deemed notice,
to Legal Counsel: Fleet Financial Group
Legal Department MA BO F10C
Attn: Real Estate Legal Counsel
if by U.S. Mail: P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
24
if by Fedex or other private courier: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tenant: Premier Research Worldwide Ltd.
with copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
or to such other addresses and to such other persons as the parties may from
time to time designate in writing. The time of giving of any such notice shall
be deemed to be three (3) days after such notice is mailed.
Article 24 - Broker's Commissions
Pursuant to a separate agreement between Landlord and Insignia/ESG
("Broker"), Landlord shall pay a commission to Broker in connection with the
execution of this Lease. Each party hereto represents that it has not dealt with
any other real estate broker or agent in connection with the negotiation of this
Lease or the leasing of the Premises. Each party shall hold the other harmless
from all damages resulting from any claims that may be asserted against the
other party by any broker, finder, or other person or entity with whom the other
party has dealt.
Article 25 - Limitation of Landlord's Liability
Tenant shall neither assert nor seek to enforce any claim for breach of
this Lease against any of Landlord's assets other than Landlord's interest in
the Property and in the rents, issues and profits thereof. No partner, trustee,
stockholder, officer, director, employee or beneficiary of Landlord shall be
personally liable under the Lease, and Tenant shall look solely to Landlord's
interest as the landlord in the Property in pursuit of its remedies upon an
event of default hereunder so that the general assets of Landlord and of the
individual partners, trustees, stockholders, officers, employees or
beneficiaries of the Landlord shall not be subject to levy, execution or other
enforcement procedure for the satisfaction of the remedies of Tenant. In the
event Landlord sells or otherwise transfers its interest in the Property (or a
part thereof which includes the Premises), then from and after such sale or
other transfer Landlord shall be released from liability hereunder and Tenant
shall look solely to the interests in the Property of Landlord's transferee for
the performance of all of the obligations of Landlord hereunder.
Article 26 - Rules and Regulations
Tenant shall abide by the rules and regulations which may be
established from time to time by Landlord with respect to the Building and the
Property. In the event that there shall be conflict between such rules and
regulations and the provisions of this Lease, the provisions of
25
this Lease shall control.
Article 27 - Recording of Lease
The parties hereto agree that this Lease shall not be recorded, but the
Landlord and Tenant hereby agree upon request of either party to enter into a
notice of lease in recordable form, setting forth the names of the parties,
describing the Premises, specifying the Term, and such other provisions, except
rental provisions, with respect to the Lease as will put on notice any third
party of the existence of this Lease. In such event, Tenant shall provide
Landlord with a release of notice of lease to be held by Landlord in escrow for
recording by Landlord in the event this Lease is terminated or expires.
Article 28 - Miscellaneous
Section 28.01. The words "Landlord" and "Tenant", as used herein shall
include the plural as well as the singular. Words used in the masculine gender
herein shall include feminine and neuter forms thereof.
Section 28.02. The covenants and conditions contained herein shall be
binding upon and inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties hereto.
Section 28.03. The article headings in this Lease are for convenience
only, and shall not limit or otherwise affect the meaning of any provisions
hereof.
Section 28.04. Time is of the essence in each and every provision of
this Lease.
Section 28.05. The invalidity or unenforceability of any provision of
this Lease shall not affect any other provision hereof.
Section 28.06. This Lease shall be construed and enforced in accordance
with the laws of the state in which the Premises are located.
Section 28.07. This Lease constitutes the entire agreement between the
parties hereto and may not be modified in any manner other than by written
agreement, executed by all of the parties hereto or their successors in
interest. No prior understanding or representation of any kind made before the
execution of this Lease shall be binding upon either party unless incorporated
herein.
Section 28.08. Submittal of a draft of this Lease does not constitute
an offer to lease the Premises upon the terms set forth herein. Neither party
shall be bound unless and until all necessary approvals are obtained and a
mutually satisfactory lease agreement has been executed and delivered by both
parties. Unless and until such agreement is fully executed and delivered by all
of the parties, any of the parties shall have the absolute right to enter into
discussions with other parties and, at any time and without notice, to terminate
negotiations regarding the proposed transaction without obligation.
26
Section 28.09. Whenever Tenant shall claim under any provision of this
Lease that Landlord has unreasonably withheld or delayed its consent or approval
to some request of Tenant which consent Landlord has specifically agreed herein
not to unreasonably withhold or delay, Tenant shall have no claim for damages by
reason of such alleged withholding or delay, and Tenant's sole remedy therefore
shall be declaratory or injunctive relief, but in any event without the recovery
of damages. Unless Landlord has specifically agreed herein not to unreasonably
withhold or delay its consent in a given instance, all consents or approvals of
Landlord required herein may be granted or refused in Landlord's discretion.
Whenever Landlord agrees in this Lease that a required consent shall not be
unreasonably withheld or delayed, it is agreed that Landlord may withhold or
delay its consent if any master lessor or mortgagee shall have withheld or
delayed any consent which may be required of it.
Section 28.10. EXCEPT IN THE CASE OF GROSS NEGLIGENCE, WILLFUL
MALFEASANCE OR WILLFUL MISFEASANCE, LANDLORD SHALL NOT BE LIABLE TO TENANT FOR
ANY CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO,
LOSS OF ANTICIPATED PROFITS, LOSS OF USE OR UTILIZATION OF FACILITIES, RESULTING
FROM ITS PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT,
EVEN IF LANDLORD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
27
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date
first set forth above:
LANDLORD: Fleet Bank, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
TENANT: Premier Research Worldwide Ltd.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
In Boston, Massachusetts on the 14th day of May 1999, before me personally
appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the Vice President of Fleet Bank, N.A., to me known
and known by me to be the person executing the foregoing instrument, and he
acknowledged said instrument by him executed to be his free act and deed in said
capacity and the free act and deed of Fleet Bank, N.A.
/s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Notary Public
My commission expires: 5/1/03
------
In _____________________________ on the ____________ day of __________________
1999, before me personally appeared the ___________________________, the
______________________________ of Premier Research Worldwide Ltd., to me known
and known by me to be the person executing the foregoing instrument, and he
acknowledged said instrument by him executed to be his free act and deed in said
capacity and the free act and deed of Premier Research Worldwide Ltd..
___________________________________
Notary Public
My commission expires:
28
EXHIBIT A - Premises
i
