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Exhibit 10.30
LEASE AND LEASE AGREEMENT
Between
CARNEGIE CENTER ASSOCIATES
The Landlord
And
ADVANCED MAGNETICS, INC.
The Tenant
For Leased Premises In
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx
September 6, 1994
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TABLE OF CONTENTS
Page
----
1 Definitions....................................................................................1
2 Lease Of The Leased Premises...................................................................1
3 Rent...........................................................................................1
4 Term...........................................................................................2
5 Preparation Of The Leased Premises.............................................................3
6 Options........................................................................................4
7 Use And Occupancy..............................................................................5
8 Utilities, Services, Maintenance And Repairs...................................................7
9 Allocation Of The Expenses Of Utilities, Services, Maintenance, Repairs And Taxes..............8
10 Computation And Payment Of Allocated Expenses Of Utilities And Capital Expenditures...........9
11 Leasehold Improvements, Fixtures And Trade Fixtures..........................................12
12 Alterations, Improvements And Other Modifications By The Tenant..............................13
13 Landlord's Rights Of Entry And Access........................................................14
14 Liabilities And Insurance Obligations........................................................15
15 Casualty Damage To Building Or Leased Premises...............................................18
16 Condemnation.................................................................................19
17 Assignment Or Subletting By Tenant...........................................................19
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18 Signs, Displays And Advertising..............................................................23
19 Quiet Enjoyment..............................................................................23
20 Relocation...................................................................................23
21 Surrender....................................................................................24
22 Events Of Default............................................................................24
23 Rights And Remedies..........................................................................25
24 Termination Of The Term......................................................................28
25 Mortgage And Underlying Lease Priority.......................................................29
26 Transfer By Landlord.........................................................................29
27 Indemnification..............................................................................30
28 Parties' Liability...........................................................................31
29 Security Deposit.............................................................................33
30 Representations..............................................................................33
31 Reservation In Favor Of Tenant...............................................................34
32 Tenant's Certificates And Mortgagee Notice Requirements......................................34
33 Waiver Of Jury Trial And Arbitration.........................................................36
34 Severability.................................................................................36
35 Notices......................................................................................36
36 Captions.....................................................................................36
37 Counterparts.................................................................................36
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38 Applicable Law...............................................................................37
39 Exclusive Benefit............................................................................37
40 Successors...................................................................................37
41 Amendments...................................................................................37
42 Waiver.......................................................................................37
43 Course Of Performance........................................................................37
44 Landlord's Concessions.......................................................................37
TABLE OF EXHIBITS
Exhibit
-------
Leased Premises Floor Space Diagram........................................ A
Property Description....................................................... B
Work Letter................................................................ C
Building Rules and Regulations............................................. D
Definitions and Index of Definitions....................................... E
Acknowledgment and Amendment............................................... F
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LEASE AND LEASE AGREEMENT, dated as of September 6, 1994, between
CARNEGIE CENTER ASSOCIATES, a New Jersey general partnership, with offices at
Suite 100, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Landlord"),
and ADVANCED MAGNETICS, INC., a Delaware corporation, with its principal office
at 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Tenant").
Subject to all the terms and conditions set forth below, the Landlord and
the Tenant hereby agree as follows:
1 DEFINITIONS. Certain terms and phrases used in this Agreement
(generally those whose first letters are capitalized) are defined in Exhibit E
attached hereto and, as used in this Agreement, they shall have the respective
meanings assigned or referred to in that exhibit.
2 LEASE OF THE LEASED PREMISES.
2.1 The Landlord shall, and hereby does, lease to the Tenant, and
the Tenant shall, and hereby does, accept and lease from the Landlord, the
Leased Premises during the Term. The Leased Premises consist of 5,174 square
feet of gross rentable floor space on the second floor of 104 Carnegie Center,
as more fully described in the definition of Leased Premises set forth in
Exhibit E attached hereto.
2.2 The Landlord shall, and hereby does, grant to the Tenant, and
the Tenant shall, and hereby does, accept from the Landlord, the non-exclusive
right to use the Common Facilities during the Term for itself, its employees,
other agents and Guests in common with the Landlord, any tenants of Other Leased
Premises, any of their respective employees, other agents and guests and such
other persons as the Landlord may, in the Landlord's sole discretion, determine
from time to time.
3 RENT.
3.1 The Tenant shall punctually pay the Rent for the Leased
Premises for the Term to the Landlord in the amounts and at the times set forth
below, without xxxx or other demand and without any offset, deduction or, except
as may be otherwise specifically set forth in this Agreement, abatement
whatsoever.
3.2 The Basic Rent for the Leased Premises during the Initial Term
shall be at the rate per year set forth below:
Period Annual Basic Rental Rate
------ ------------------------
Commencement Date through the $117,449.80
end of Lease Year 1
Lease Year 2 $120,036.80
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The annual rate of Basic Rent for the Leased Premises during any Renewal Term
shall be as set forth in subsection 6.3 of this Agreement for the respective
Renewal Term.
3.3 The Tenant shall punctually pay the applicable Basic Rent
in equal monthly installments in advance on the first day of each month during
the Term, with the exception of Basic Rent for the first full calendar month of
the Initial Term and for any period of less than a full calendar month at the
beginning of the Term. The Tenant shall pay the Basic Rent for the first full
calendar month of the Initial Term upon execution and delivery of this
Agreement. The Tenant shall punctually pay the Basic Rent for a period of less
than a full calendar month at the beginning of the Term on the Commencement
Date.
3.4 The Basic Rent and the Additional Rent for any period of
less than a full calendar month shall be prorated on a per diem basis within the
partial month. In the event that any installment of Basic Rent cannot be
calculated by the time payment is due, such portion as is then known or
calculable shall be then due and payable; and the balance shall be due upon the
Landlord's giving notice to the Tenant of the amount of the balance due.
3.5 The Additional Rent for the Leased Premises during the Term
shall be promptly paid by the Tenant in the respective amounts and at the
respective times set forth in this Agreement.
3.6 That portion of any amount of Rent or other amount due
under this Agreement which is not paid on the day it is first due shall incur a
late charge equal to the sum of: (i) five percent of that portion of any amount
of Rent or other amount due under this Agreement which is not paid on the day it
is first due and (ii) interest on that portion of any amount of Rent or other
amount due under this Agreement which is not paid on the day it is first due at
the Base Rate(s) in effect from time to time plus two additional percentage
points from the day such portion is first due through the day of receipt thereof
by the Landlord. Any such late charge due from the Tenant shall be due
immediately.
4 TERM.
4.1 The Initial Term shall commence on the Commencement Date
and shall continue for two years from the beginning of the Initial Year, unless
sooner terminated in accordance with section 24 of this Agreement. The Term
shall commence on the Commencement Date and shall continue until the later of
the conclusion of the Initial Term or the conclusion of any Renewal Term, unless
sooner terminated in accordance with section 24 of this Agreement.
4.2 Unless one or more of the conditions contemplated by
subsection 4.3 of this Agreement occurs, the Commencement Date shall be the
later of:
4.2.1 the Target Date; or
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4.2.2 the date that the last of each of the following
conditions set forth in this subsection 4.2.2 of the Agreement that is
specifically applicable shall have occurred:
4.2.2.1 if the Leased Premises is being prepared
exclusively by contractors selected and retained by the Landlord, the date the
Leased Premises can first be legally occupied for its intended use;
4.2.2.2 preparation of the Leased Premises in
accordance with the Tenant Plan as it pertains to repainting and recarpeting is
substantially completed ;
4.2.2.3 the Landlord can deliver actual and
exclusive possession of the Leased Premises, free of rubbish and debris, to the
Tenant (except for any contractors not selected and retained by the Landlord and
their rubbish and debris).
4.3 In the event one or more of the conditions contemplated by
this subsection 4.3 of the Agreement occurs, notwithstanding anything to the
contrary set forth in subsection 4.2 of this Agreement, the Commencement Date
shall be the earliest applicable date specified below:
4.3.1 the earliest date the Tenant takes any of the
following actions shall be the Commencement Date in the event the Tenant takes
possession of, occupies or moves any furniture, furnishings equipment (with the
exception of equipment required for telecommunications hook-ups), supplies or
other possessions into, the Leased Premises or any portion thereof earlier than
the date otherwise determined in accordance with subsection 4.2 of this
Agreement;
4.3.2 the date that the last of the conditions set forth
in subsection 4.2.2 of this Agreement that is specifically applicable shall have
occurred if (i) the Tenant shall have requested the Landlord or any contractors
selected and retained by the Landlord to complete their work as it pertains to
repainting and recarpeting before the Target Date and (ii) they shall have done
so.
4.4 Once it is ascertained in accordance with subsections 4.2
and 4.3 of this Agreement, the Landlord shall give prompt notice of the
Commencement Date to the Tenant; and if the Tenant does not object thereto by
notice given to the Landlord within 10 days of the Landlord's notice, the date
set forth in the Landlord's notice shall thereafter be conclusively presumed to
be the Commencement Date.
5 PREPARATION OF THE LEASED PREMISES.
5.1 [This subsection intentionally left blank.]
5.2 [This subsection intentionally left blank.]
5.3 If, at or prior to the execution and delivery of this
Agreement, the Tenant shall not have requested the Landlord in writing to
provide the Tenant Plan, the Tenant shall deliver the complete Tenant Plan as it
pertains to repainting and recarpeting to the Landlord not
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later than the Tenant Plan Due Date and the complete Tenant Plan as it pertains
to other work to the Landlord at the Tenant's convenience. The Tenant Plan shall
be the Tenant's expense.
5.4 Within three days after receipt of each of the Tenant Plans
contemplated by subsection 5.3 of this Agreement, the Landlord shall give
notice* to the Tenant of the Landlord's price to the Tenant to supply or
perform, or both, the work contemplated by the respective Tenant Plan being
provided by the Landlord or the Landlord's contractors. Such price shall include
15% of the Landlord's contractors' aggregate price as the Landlord's general
contracting fee and shall be net of any credit for work being provided by the
Landlord without charge to the Tenant in accordance with subsection 44.1 of this
Agreement. If acceptable to the Tenant, the Tenant shall sign a copy of the
notice and return it to the Landlord, together with payment of 33-1/3% of such
net price, within three days after it was given authorizing the Landlord and the
Landlord's contractors to supply or perform the work contemplated by both the
respective Tenant Plan and the notice at the net price set forth in the
respective notice. The Tenant shall pay the balance of such net price to the
Landlord in proportion to the progress of such work, as and when billed by the
Landlord at convenient intervals, with payment of any remaining final balance
due from the Tenant upon completion of such respective work which, to the extent
the Tenant Plan pertains to repainting and recarpeting, the Landlord shall use
its best efforts to complete by the Target Date and which, in the case of other
work, shall be completed as soon as reasonably practicable after receipt of the
related Tenant Plan and notice contemplated above.
6 OPTIONS.
6.1 If, prior to the respective date of exercise thereof, (a)(i)
no Event of Default shall have occurred or (ii) if an Event of Default shall
have occurred, the Tenant shall have previously cured it in full or the Landlord
shall have waived it and (b) there shall not have been a History of Recurring
Events of Default, the Tenant shall have two options, exercisable exclusively at
the times and in the manner set forth below in subsection 6.2 of this Agreement,
to extend the Term for one additional period of one year's duration per option.
The respective options and the respective periods to which each option relates
shall be consecutive and, if the respective option is properly exercised, the
respective period to which it relates shall commence upon the end of the
Expiring Term. Each such option is an "Option to Renew."
6.2 In the event the Tenant desires to exercise the next available
Option to Renew, the Tenant shall do so exclusively by giving timely notice
thereof to the Landlord no earlier than nine, and no later than six, months
prior to the end of the Expiring Term. In the event the Tenant fails timely to
exercise any Option to Renew, that option to Renew and any subsequent Options to
Renew shall thereupon expire.
6.3 The Basic Rent for the Leased Premises during any Renewal Term
shall be at the rate per year set forth below:
------------------------
* in the form attached hereto as Exhibit F, entitled "Acknowledgment &
Amendment."
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Period Annual Basic Rental Rate
------ ------------------------
Lease Year 3 (Renewal Term $123,917.30
Appurtenant to first Option to Renew)
Lease Year 4 (Renewal Term $127,797.80
Appurtenant to second option to Renew)
6.4 In the event the Tenant assigns this Agreement or sublets,
or licenses the use or occupancy of, the Leased Premises or any portions thereof
other than in accordance with subsection 17.6 of this Agreement, or attempts to
do so:
6.4.1 any Option to Renew which the Tenant has theretofore
properly exercised with respect to a Renewal Term that has not yet actually
commenced shall be rescinded, if the Landlord so elects by notice to the Tenant,
to the same extent as if it had not been exercised at all; and
6.4.2 any Option to Renew or any other type of option or
optional right exercisable by the Tenant not theretofore timely and otherwise
properly exercised by the Tenant shall thereupon expire.
7 USE AND OCCUPANCY.
7.1 The Tenant shall continuously occupy and use the Leased
Premises during the Term exclusively as a general business, sales and
administrative office for its business of manufacturing pharmaceutical products.
7.2 In connection with the Tenant's use and occupancy of the
Leased Premises and use of the Common Facilities, the Tenant shall observe, and
the Tenant shall cause the Tenant's employees, other agents and Guests to
observe, each of the following:
7.2.1 the Tenant shall not do, or permit or suffer the
doing of, anything which might have the effect of creating not insignificantly
increased risk of, or damage from, fire, explosion or other casualty;
7.2.2 the Tenant shall not do, or permit or suffer the
doing of, anything which would have the effect of (a) increasing any premium for
any liability, property, casualty or excess coverage insurance policy otherwise
payable by the Landlord or any tenant of Other Leased Premises or (b) making any
such types or amounts of insurance coverage unavailable or less available to the
Landlord or any tenant of Other Leased Premises;
7.2.3 to the extent they are not inconsistent with this
Agreement, the Tenant and the Tenant's employees, other agents and Guests shall
comply with the Building Rules and Regulations attached hereto as Exhibit D, and
with any changes made therein by the Landlord if, with respect to any such
changes, the Landlord shall have given notice of the
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particular changes to the Tenant and such changes shall not materially adversely
affect the conduct of the Tenant's business in the Leased Premises and shall
apply to all tenants of Other Leased Premises generally;
7.2.4 the Tenant and the Tenant's employees, other agents
and Guests shall not create, permit or continue any Nuisance in or around the
Carnegie Center Complex, the Leased Premises, the Other Leased Premises, the
Building, the common Facilities and the Property;
7.2.5 The Tenant and the Tenant's employees, other agents
and Guests shall not permit the Leased Premises to be regularly occupied by more
than one individual per 200 square feet of usable floor space of the Leased
Premises;
7.2.6 the Tenant and the Tenant's employees, other agents
and Guests shall comply with all Federal, state and local statutes, ordinances,
rules, regulations and orders as they pertain to the Tenant's use and occupancy
of the Leased Premises, to the conduct of the Tenant's business and to the use
of the common Facilities, except that this subsection shall not require the
Tenant to make any structural changes that may be required thereby that are
generally applicable to the Building as a whole;
7.2.7 the Tenant and the Tenant's employees, other agents
and Guests shall comply with the requirements of the Board of Fire underwriters
(or successor organization) and of any insurance carriers providing liability,
property, casualty or excess insurance coverage regarding the Property, the
Building, the Common Facilities or any portions thereof, any other improvements
on the Property and the Carnegie Center Complex, except that this subsection
shall not require the Tenant to make any structural changes that may be required
thereby that are generally applicable to the Building as a whole;
7.2.8 the Tenant and the Tenant's employees, other agents
and Guests shall not bring or discharge any substance (solid liquid or gaseous),
or conduct any activity, in or on the Carnegie Center Complex, the Property, the
Building, the Common Facilities or the Leased Premises that shall have been
identified by any Federal, state or local statute (including, without limiting
the generality of the foregoing, the Spill Compensation and Control Act (58
N.J.S.A. ss.23.11 ET SEQ.) and the Environmental Cleanup Responsibility Act (13
N.J.S.A. ss.1 K-6 ET SEQ.), as they may be amended), ordinance, rule, regulation
or order as toxic or hazardous to health or to the environment;
7.2.9 the Tenant and the Tenant's employees, other agents
and Guests shall not draw electricity in the Leased Premises in excess of the
rated capacity of the electrical conductors and safety devices including,
without limiting the generality of the foregoing, circuit breakers and fuses, by
which electricity is distributed to and throughout the Leased Premises and,
without the prior written consent of the Landlord in each instance, shall not
connect any fixtures, appliances or equipment to the electrical distribution
system serving the Building and the Leased Premises other than typical
professional office equipment such as minicomputers, microcomputers,
typewriters, copiers, telephone systems, coffee machines and table top
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xxxxxxxxx xxxxx, xxxx of which, considered individually and in the aggregate,
overall and per fused or circuit breaker protected circuit, shall exceed the
above limits;
7.2.10 on a timely basis the Tenant shall pay directly and
promptly to the respective taxing authorities any taxes (other than Taxes)
charged, assessed or levied exclusively on the Leased Premises or arising
exclusively from the Tenant's use and occupancy of the Leased Premises; and
7.2.11 the Tenant shall not initiate any appeal or contest
of any assessment or collection of Taxes for any period without, in each
instance, the prior written consent of the Landlord which, without being deemed
unreasonable, the Landlord may withhold if the Building was not 90% occupied by
paying tenants throughout that period or if the Tenant is not joined by tenants
of Other Leased Premises that leased throughout that period, and that are then
leasing, at least 80% of all Other Leased Premises, determined by their gross
rentable floor space.
8 UTILITIES, SERVICES, MAINTENANCE AND REPAIRS.
8.1 The Landlord shall provide or arrange for the provision of:
8.1.1 such maintenance and repair of the Building (except
the Leased Premises and Other Leased Premises); the common Facilities; and the
heating, ventilation and air conditioning systems, any plumbing systems and the
electrical systems in the Building, the common Facilities, the Leased Premises
and other Leased Premises as is necessary to keep the same in good order and
operational condition;
8.1.2 such garbage removal from the Building and the
Common Facilities; and such janitorial services for the Building, the Leased
Premises and Other Leased Premises as is customarily provided for first class
office buildings in the immediate area;
8.1.3 water to the Building and, if the appropriate
plumbing has been installed therein, the Leased Premises and Other Leased
Premises;
8.1.4 sewage disposal for the Building;
8.1.5 passenger elevator service for the Building;
8.1.6 snow clearance from, and sweeping of, Parking
Facilities, sidewalks and private access roads which are part of the Property or
the Common Facilities; and
8.1.7 the maintenance of landscaping which is part of the
Property or the Common Facilities.
8.2 The Landlord shall provide or arrange for the provision of:
8.2.1 such maintenance and repair of the Leased Premises,
except for refinishing walls and wall treatments, base, ceilings, floor
treatments and doors in general from
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time to time or for gouges, spots, marks, damage or defacement caused by anyone
other than the Landlord, its employees and other agents, and except for the
Tenant's furniture, furnishings, equipment and other property;
8.2.2 such maintenance and repair of the Other Leased
Premises, except for refinishing walls and wall treatments, base, ceilings,
floor treatments and doors in general from time to time or for gouges, spots,
marks, damage or defacement caused by anyone other than the Landlord, its
employees and other agents, and except for the respective tenants' furniture,
furnishings, equipment and other property;
8.2.3 the electricity required for the operation of the
Building, the Property and the Common Facilities during Regular Business Hours
and, on a reduced service basis, during other than Regular Business Hours; and,
at all times, the electricity required for the Leased Premises and Other Leased
Premises;
8.2.4 such heat, ventilation and air conditioning for the
Building, the Leased Premises and Other Leased Premises as is customarily
provided for first class office buildings in the immediate area for the
comfortable use of the Building during Regular Business Hours; and
8.2.5 heated water to the Building (except the Leased
Premises and other Leased Premises, unless the appropriate plumbing, fixtures
and hot water heating units have been installed therein).
8.3 Except as specifically set forth in subsections 8.1 and
8.2.1 of this Agreement, the Tenant shall maintain and repair the Leased
Premises and keep the Leased Premises in as good condition and repair,
reasonable wear and use excepted, as the Leased Premises are upon the completion
of any improvements contemplated by section 5 of this Agreement.
9 ALLOCATION OF THE EXPENSES OF UTILITIES, SERVICES, MAINTENANCE,
REPAIRS AND TAXES.
9.1 Tenant Electric Charges for periods other than Regular
Business Hours shall be borne by the Tenant.
9.2 The Tenant shall not bear any portion of the operational
Expenses and Taxes incurred during the Term.
10 COMPUTATION AND PAYMENT OF ALLOCATED EXPENSES OF UTILITIES AND
CAPITAL EXPENDITURES.
10.1 The Tenant shall promptly pay the following additional
amounts to the Landlord at the respective times set forth below:
10.1.1 commencing with the first day of the first month
after the Landlord gives any notice contemplated by subsection 10.9 of this
Agreement to the Tenant and
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continuing on the first day of each month thereafter until the earlier of (a)
the end of the Term or (b) the last month of the useful life set forth in the
respective notice, one-twelfth of the Tenant's Share of any Annual Amortized
Capital Expenditure, computed in accordance with subsection 10.9 of this
Agreement;
10.1.2 promptly as and when billed therefor by the
Landlord, Tenant Electric Charges for periods other than Regular Business Hours;
and
10.1.3 promptly as and when billed therefor by the
Landlord, the amount of any expense which would otherwise fall within the
definition of Operational Expenses, but which is specifically paid or incurred
by the Landlord for operation and maintenance of the Building, the Common
Facilities or the Property outside Regular Business Hours at the specific
request and for the sole benefit of the Tenant or the amount of any expenditure
incurred for maintenance or repair of damage to the Building, the Common
Facilities, the Property, the Leased Premises or the Other Leased Premises
caused directly or indirectly, in whole or in part, by the active or passive
negligence or intentional act of the Tenant or any of its employees, other
agents or Guests.
10.2 "Operational Expenses" means all expenses paid or incurred
by the Landlord in connection with the operation and maintenance of the
Property, the Building, the Common Facilities and any other improvements on the
Property (other than Taxes, Capital Expenditures (which are separately allocated
to the Tenant in accordance with subsection 10.1.1 of this Agreement) and those
expenses contemplated by subsections 10.1.2 and 10.1.3 of this Agreement)
including, without limiting the generality of the foregoing:
10.2.1 Utilities Expenses;
10.2.2 the expense of providing the services, maintenance
and repairs contemplated by subsections 8.1, 8.2.1 and 8.2.2 of this Agreement,
whether furnished by the Landlord's employees or by independent contractors or
other agents;
10.2.3 wages, salaries, fees and other compensation and
payments and payroll taxes and contributions to any social security,
unemployment insurance, welfare, pension or similar fund and payments for other
fringe benefits required by law or union agreement (or, if the employees or any
of them are not represented by a union, then payments for benefits comparable to
those generally required by union agreement in first class office buildings in
the immediate area which are unionized) made to or on behalf of any employees of
Landlord performing services rendered in connection with the operation and
maintenance of the Building, the Common Facilities and the Property, including,
without limiting the generality of the foregoing, elevator operators, elevator
starters, window cleaners, porters, janitors, maids, miscellaneous handymen,
watchmen, persons engaged in patrolling and protecting the Building, the Common
Facilities and the Property, carpenters, engineers, firemen, mechanics,
electricians, plumbers, other tradesmen, other persons engaged in the operation
and maintenance of the Building, Common Facilities and Property, Building
superintendent and assistants; building manager, and clerical and administrative
personnel;
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10.2.4 the uniforms of all employees and the cleaning,
pressing and repair thereof;
10.2.5 premiums and other charges incurred by Landlord with
respect to all insurance relating to the Building, the Common Facilities and the
Property and the operation and maintenance thereof, including, without
limitation: property and casualty, fire and extended coverage insurance,
including windstorm, flood, hail, explosion, other casualty, riot, rioting
attending a strike, civil commotion, aircraft, vehicle and smoke insurance;
public liability insurance; elevator, boiler and machinery insurance; excess
liability coverage insurance; use and occupancy insurance; worker's compensation
and health, accident, disability and group life insurance for all employees; and
casualty rent insurance;
10.2.6 sales and excise taxes and the like upon any
Operational Expenses and Capital Expenditures;
10.2.7 management fees of any independent managing agent
for the Property, the Building or the Common Facilities; and if there shall be
no independent managing agent, or if the managing agent shall be a person
affiliated with the Landlord, the management fees that would customarily be
charged for the management of the Property, the Building and the Common
Facilities by an independent, first class managing agent in the immediate area;
10.2.8 the cost of replacements for tools, supplies and
equipment used in the operation, service, maintenance, improvement, inspection,
repair and alteration of the Building, the Common Facilities and the Property;
10.2.9 the cost of repainting or otherwise redecorating any
part of the Building or the Common Facilities;
10.2.10 decorations for the lobbies and other Common
Facilities in the Building;
10.2.11 the cost of licenses, permits and similar fees and
charges related to operation, repair and maintenance of the Building, the
Property and the Common Facilities;
10.2.12 an allocable share of service, replacement, repair,
maintenance and other charges assessed from time to time by the Carnegie Center
Owner's Association to the Building; and
10.2.13 any and all other expenditures of the Landlord in
connection with the operation, alteration, repair or maintenance of the
Property, the Common Facilities or the Building as a first-class office building
and facilities in the immediate area which are properly treated as an expense
fully deductible as incurred in accordance with generally applied real estate
accounting practice.
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10.3 "Capital Expenditures" means the following expenditures
incurred or paid by the Landlord in connection with the Property, the Building,
the Common Facilities and any other improvements on the Property:
10.3.1 all costs and expenses incurred by the Landlord in
connection with retrofitting the entire Building or the common Facilities, or
any portion thereof, to comply with any change in Federal, state or local
statute, rule, regulation, order or requirement which change takes effect after
the original completion of the Building;
10.3.2 all costs and expenses incurred by the Landlord to
replace and improve the Property, the Building or the Common Facilities or
portions thereof for the purpose of continued operation of the Property, the
Building and the Common Facilities as a first class office complex in the
immediate area; and
10.3.3 all costs and expenses incurred by the Landlord in
connection with the installation of any energy, labor or other cost saving
device or system on the Property or in the Building or the Common Facilities.
10.4 "Capital Expenditures" shall not include any of the
following:
10.4.1 principal or interest on any mortgage indebtedness
on the Property, the Building or any portion thereof;
10.4.2 any capital expenditure, or amortized portion
thereof, other than those included in the definition of Capital Expenditures set
forth in subsection 10.3 above;
10.4.3 expenditures for any leasehold improvement which is
made in connection with the preparation of any portion of the Building for
occupancy by a new tenant or which is not made generally to or for the benefit
of the Leased Premises and all Other Leased Premises or generally to the
Building or the Common Facilities;
10.4.4 to the extent the Landlord actually receives
proceeds of property and casualty insurance policies on the Building, other
improvements on the Property or the Common Facilities, expenditures for repairs
or replacements occasioned by fire or other casualty to the Building or the
Common Facilities;
10.4.5 expenditures for repairs, replacements or rebuilding
occasioned by any of the events contemplated by section 16 of this Agreement;
10.4.6 expenditures for costs, including advertising and
leasing commissions, incurred in connection with efforts to lease portions of
the Building and to procure new tenants for the Building;
10.4.7 expenditures for the salaries and benefits of the
executive officers, if any, of the Landlord;
10.4.8 Operational Expenses and Taxes; and
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10.4.9 depreciation (as that term is used in the accounting
sense in the context of generally applied real estate accounting practice) of
the Building, the Common Facilities and any other improvement on the Property.
10.5 As soon as practicable after incurring any Capital
Expenditure, the Landlord shall furnish the Tenant with a notice setting forth:
10.5.1 a description of the Capital Expenditure and the
subject thereof;
10.5.2 the date the subject of the respective Capital
Expenditure was first placed into service and the period of useful life selected
by the Landlord in connection with the determination of the Annual Amortized
Capital Expenditure;
10.5.3 the amount of the Annual Amortized Capital
Expenditure; and
10.5.4 the Tenant's Share of item 10.5.3 above.
10.6 Within 30 days after the Landlord gives any notice
enumerated in subsection 10.5 of this Agreement, the Tenant or the Tenant's
authorized agent, upon one week's prior notice to the Landlord, may inspect the
Landlord's books and records, as they pertain to the particular expense in
question, at the Landlord's office regarding the subject of any such notice to
verify the amount(s) and calculation(s) thereof.
10.7 The mere enumeration of an item within the definitions of
Operational Expenses and Capital Expenditures in subsections 10.2 and 10.3 of
this Agreement, respectively, shall not be deemed to create an obligation on the
part of the Landlord to provide such item unless the Landlord is affirmatively
required to provide such item elsewhere in this Agreement.
11 LEASEHOLD IMPROVEMENTS, FIXTURES AND TRADE FIXTURES. All leasehold
improvements to the Leased Premises, fixtures installed in the Leased Premises
and the blinds and floor treatments or coverings shall be the property of the
Landlord, regardless of when, by which party or at which party's cost the item
is installed. Movable furniture, furnishings, trade fixtures and equipment of
the Tenant which are in the Leased Premises shall be the property of the Tenant,
except as may otherwise be set forth in section 23 of this Agreement.
12 ALTERATIONS, IMPROVEMENTS AND OTHER MODIFICATIONS BY THE TENANT.
12.1 Except as may be otherwise contemplated by section 5 of
this Agreement, the Tenant shall not make any alterations, improvements or other
modifications to the Leased Premises which effect structural changes in the
Building or any portion thereof, change the functional utility or rental value
of the Leased Premises or affect the mechanical, electrical, plumbing or other
systems installed in the Building or the Leased Premises.
12.2 The Tenant shall not make any other alterations,
improvements or modifications to the Leased Premises, the Building or the
Property or make any boring in the ceiling, walls or floor of the Leased
Premises or the Building unless the Tenant shall have first:
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12.2.1 furnished to the Landlord detailed, New Jersey
architect-certified construction drawings, construction specifications and, if
they pertain in any way to the heating, ventilation and air conditioning or
other systems of the Building, related engineering design work and
specifications regarding, the proposed alterations, improvements or other
modifications;
12.2.2 not received a notice from the Landlord objecting
thereto in any respect within 30 days of the furnishing thereof (which objection
shall not be unreasonably made by the Landlord or which lack of timely notice of
objection shall not be deemed the Landlord's affirmative consent for any
purpose);
12.2.3 obtained any necessary or appropriate building
permits or other approvals from the Municipality and, if such permits or other
approvals are conditional, satisfied all conditions to the satisfaction of the
Municipality; and
12.2.4 met, and continued to meet, all the following
conditions with regard to any contractors selected by the Tenant and any
subcontractors, including materialmen, in turn selected by any of them:
12.2.4.1 the Tenant shall have sole responsibility
for payment of, and shall pay, such contractors;
12.2.4.2 the Tenant shall have sole responsibility
for coordinating, and shall coordinate, the work to be supplied or performed by
such contractors, both among themselves and with any contractors selected by the
Landlord;
12.2.4.3 the Tenant shall not permit or suffer the
filing of any mechanic's notice of intention or other lien or prospective lien
by any such contractor or subcontractor with respect to the Property, the Common
Facilities, the Building or any other improvements on the Property; and if any
of the foregoing should be filed by any such contractor or subcontractor, the
Tenant shall forthwith obtain and file the complete discharge and release
thereof or provide such payment bond(s) from a reputable, financially sound
institutional surety as will, in the opinions of the Landlord, the holders of
any mortgage indebtedness on, or other interest in, the Property, the Building,
the Common Facilities or any other improvements on the Property, or any portions
thereof, and their respective title insurers, be adequate to assure the complete
discharge and release thereof;
12.2.4.4 prior to any such contractor's entering
upon the Property, the Building or the Leased Premises or commencing work the
Tenant shall have delivered to the Landlord (a) all the Tenant's certificates of
insurance set forth in section 14 of this Agreement, conforming in all respects
to the requirements of section 14 of this Agreement, except that the effective
dates of all such insurance policies shall be prior to any such contractor's
entering upon the Property, the Building or the Leased Premises or commencing
work (if any work is scheduled to begin before the Commencement Date) and (b)
similar certificates of insurance from each of the Tenant's contractors
providing for coverage in equivalent amounts, together with their respective
certificates of workers' compensation insurance, employer's liability insurance
and
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products completed operations insurance, the latter providing coverage in at
least the amount required for the Tenant's comprehensive general public
liability and excess insurance;
12.2.4.5 each such contractor shall be a party to
collective bargaining agreements with those unions that are certified as the
collective bargaining agents of all bargaining units of such contractor, of
which all such contractor's workpersons shall be members in good standing;
12.2.4.6 each such contractor shall perform its
work in a good and workpersonlike manner and shall not interfere with or hinder
the Landlord or any other contractor in any manner;
12.2.4.7 there shall be no labor dispute of any
nature whatsoever involving any such contractor or any workpersons of such
contractor or the unions of which they are members with anyone; and if such a
labor dispute exists or comes into existence the Tenant shall forthwith, at the
Tenant's sole cost and expense, remove all such contractors and their
workpersons from the Building, the Common Facilities and the Property; and
12.2.4.8 the Tenant shall have the sole
responsibility for the security of the Leased Premises and all contractors'
materials, equipment and work, regardless of whether their work is in progress
or completed.
12.3 After the Commencement Date, the Tenant may apply any wall
covering or other treatment to the walls of the Leased Premises (so long as such
wall covering or treatment is not unconventional in first class office buildings
and hang any decorative wall hangings), all without the prior written consent of
the Landlord.
13 LANDLORD'S RIGHTS OF ENTRY AND ACCESS. The Landlord and its
authorized agents shall have the following rights of entry and access to the
Leased Premises:
13.1 In case of any emergency or threatened emergency, at any
time for any purpose which the Landlord reasonably believes under such
circumstances will serve to prevent, eliminate or reduce the emergency, or the
threat thereof, or damage or threatened damage to persons and property.
13.2 Upon at least two days' prior verbal advice to the Tenant,
at any time for the purpose of erecting or constructing improvements,
modifications, alterations and other changes to the Building or any portion
thereof, including, without limiting the generality of the foregoing, the Leased
Premises, the Common Facilities or the Property or for the purpose of repairing,
maintaining or cleaning them, whether for the benefit of the Landlord, the
Building, all tenants of Other Leased Premises in the Building, or one or more
tenants of Other Leased Premises, the Carnegie Center Complex or others. In
connection with any such improvements, modifications, alterations, other
changes, repairs, maintenance or cleaning, the Landlord may close off such
portions of the Property, the Building and the Common Facilities and interrupt
such services as may be necessary to accomplish such work, without liability to
the Tenant therefor and without such closing or interruption being deemed an
eviction or constructive
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eviction or requiring an abatement of Rent. However, in accomplishing any such
work, the Landlord shall endeavor not to materially interfere with the Tenant's
use and enjoyment of the Leased Premises or the conduct of the Tenant's business
and to minimize interference, inconvenience and annoyance to the Tenant.
13.3 At all reasonable hours for the purpose of performing
janitorial services in the Leased Premises and, during Regular Business Hours
or, by prior arrangement with the Tenant, at all reasonable hours for the
purpose of operating, inspecting or examining the Building, including the Leased
Premises, or the Property.
13.4 At any time after the Tenant has vacated the Leased
Premises, for the purpose of preparing the Leased Premises for another tenant or
prospective tenant.
13.5 If practicable by appointment with the Tenant, at all
reasonable hours for the purpose of showing the Building to prospective
purchasers, mortgagees and prospective mortgagees and prospective ground lessees
and lessors.
13.6 If practicable by appointment with the Tenant, at all
reasonable hours during the last six months of the Term for the purpose of
showing the Leased Premises to prospective tenants thereof.
13.7 The mere enumeration of any right of the Landlord within
this section 13 of the Agreement shall not be deemed to create an obligation on
the part of the Landlord to exercise any such right unless the Landlord is
affirmatively required to exercise such right elsewhere in this Agreement.
14 LIABILITIES AND INSURANCE OBLIGATIONS.
14.1 The Tenant shall, at the Tenant's own expense, purchase
before the Commencement Date, and maintain in full force and effect throughout
the Term and any other period during which the Tenant may have possession of the
Leased Premises, the following types of insurance coverage from financially
sound and reputable insurers, licensed by the State of New Jersey to provide
such insurance and acceptable to the Landlord, in the minimum amounts set forth
below, each of which insurance policies shall be for the benefit of, and shall
name the Landlord, the Landlord's managing agent and mortgagees and ground
lessors known to the Tenant, if any, of the Building, the Common Facilities, the
Property or any interest therein, their successors and assigns as additional
persons insured, and none of which insurance policies shall contain a
"co-insurance" clause:
14.1.1 comprehensive general public liability insurance
(including a "broad form" coverage endorsement) and excess ("umbrella")
insurance which, without limiting the generality of the foregoing, considered
together shall insure against such risks as bodily injury, death and property
damage, with a combined single limit of not less than $3,000,000.00 for each
occurrence with respect to each type of risk;
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14.1.2 contractual liability insurance which shall insure
the risk of the Tenant's failure to perform all the Tenant's obligations under
this Agreement by which the Tenant indemnifies the Landlord, in an amount not
less than $3,000,000.00; and
14.1.3 property, casualty and "all risks" insurance which,
without limiting the generality of the foregoing, shall insure against the risk
of damage and loss by reason of fire, explosion and all other casualties, of the
Leased Premises and leasehold improvements thereto.
14.2 With respect to risks:
14.2.1 as to which this Agreement requires either party to
maintain insurance, or
14.2.2 as to which either party is effectively insured and
for which risks the other party may be liable, the party required to maintain
such insurance and the party effectively insured shall use its best efforts to
obtain a clause, if available from the respective insurer, in each such
insurance policy expressly waiving any right of recovery, by reason of
subrogation to such party's rights or otherwise, the respective insurer might
otherwise have or obtain against the other party, so long as such a clause can
be obtained in the respective insurance policy without additional premium cost.
If such a clause can be obtained in the respective insurance policy, but only at
additional premium cost, such party shall, by notice to the other party,
promptly advise the other party of such fact and the amount of the additional
premium cost. If the other party desires the inclusion of such a clause in the
notifying party's respective insurance policy, the other party shall, within 10
days of receipt of the notifying party's notice, by notice advise the notifying
party of its desire and enclose therewith its check in the full amount of the
additional premium cost; otherwise the notifying party need not obtain such a
clause in the respective insurance.
14.3 Each party hereby waives any right of recovery against the
other party for any and all damages for property losses and property damages
which are actually insured by either party, but only to the extent:
14.3.1 that the waiver set forth in this subsection 14.3
does not cause or result in any cancellation of, or diminution in, the insurance
coverage otherwise available under any applicable insurance policy;
14.3.2 of the proceeds of any applicable insurance policy
(without adjustment for any deductible amount set forth therein) actually
received by such party for such respective loss or damages; and
14.3.3 the substance of the clause contemplated by
subsection 14.2 of this Agreement is actually and effectively set forth in the
respective insurance policy.
The waiver set forth in this subsection 14.3 of the Agreement shall not apply
with respect to liability insurance policies (as opposed to property and
casualty insurance policies).
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14.4 The Tenant hereby waives any right of recovery it might
otherwise have against the Landlord for losses and damages caused actively or
passively, in whole or in part, by any of the risks the Tenant is required to
insure against in accordance with subsections 14.1.1 or 14.1.3 of this
Agreement, unless such waiver would cause or result in a cancellation of, or
diminution in, the coverage of the Tenant's policies of insurance against such
risks.
14.5 The Landlord shall have no liability whatsoever to the
Tenant or the Tenant's employees, other agents or Guests or anyone else for any
death, bodily injury, property loss or other damages suffered by any of them or
any of their property which is not proximately caused by the negligence or
intentional misconduct of the Landlord, its agents or employees.
14.6 Each policy of insurance required under subsection 14.1 of
this Agreement shall include provisions to the effect that:
14.6.1 no act or omission of the Tenant, its employees,
other agents or Guests shall result in a loss of insurance coverage otherwise
available under such policy to any person required to be named as an additional
insured in accordance with subsection 14.1 of this Agreement; and
14.6.2 the insurance coverage afforded by such policy shall
not be diminished, cancelled, permitted to expire or otherwise terminated for
any reason except upon 30 days' prior written notice from the insurer to every
person required to be named as an additional insured in accordance with
subsection 14.1 of this Agreement.
14.7 With respect to each type of insurance coverage referred to
in subsection 14.1 of this Agreement, prior to the Commencement Date the Tenant
shall cause its insurer(s) to deliver to the Landlord the certificate(s) of the
insurer(s) setting forth the name and address of the insurer, the name and
address of each additional insured, the type of coverage provided, the limits of
the coverage, any deductible amounts, the effective dates of coverage and that
each policy under which coverage is provided affirmatively includes provisions
to the effect set forth in subsection 14.6 of this Agreement. In the event any
of such certificates indicates a coverage termination date earlier than the end
of the Term or the end of any other period during which the Tenant may have
possession of the Leased Premises, no later than 10 days before any such
coverage termination date, the Tenant shall deliver to the Landlord respective,
equivalent, new certificate(s) of the insurer(s).
14.8 The Landlord represents that it maintains property
insurance coverage for the Building and other improvements on the Property and
liability insurance coverage in the form of a blanket insurance policy for
several projects of the Landlord and its Affiliates. The basic property
insurance blanket policy limit is well in excess of $100,000,000 with a $10,000
deductible.
14.9 The Landlord hereby waives any right of recovery it might
otherwise have against the Tenant for losses and damages caused actively or
passively, in whole or in part, by any of the risks the Landlord is required to
insure against in accordance with subsection 14.8 of
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this Agreement, unless such waiver would cause or result in a cancellation of,
or diminution in, the coverage of the Landlord's policies of insurance against
such risks.
15 CASUALTY DAMAGE TO BUILDING OR LEASED PREMISES.
15.1 In the event of any damage to the Building or any portion
thereof by fire or other casualty:
15.1.1 with the result that the Leased Premises are
rendered untenantable in whole or in part due either (i) to casualty damage to
the Leased Premises itself or (ii) to casualty damage to necessary Common
Facilities such that the Tenant is unable to access and use any portion of the
Leased Premises for the purpose contemplated by subsection 7.1 of this
Agreement;
15.1.2 regarding which, within 60 days after the occurrence
of the casualty, the Landlord gives notice to the Tenant that the Landlord can
restore the Leased Premises within 180 days after the occurrence of the casualty
to the same condition they were in immediately prior to the occurrence of the
casualty and can restore the Common Facilities within the same period so that
there is no material interference in the Tenant's ability to access and use and
enjoy the Leased Premises, and
15.1.3 regarding which the Landlord does restore the Leased
Premises within such period of 180 days, then this Agreement shall remain in
full force and effect, but Rent shall xxxxx from the date of the casualty until
such time as such restoration has been completed and be reduced during such
period by the amount which bears the same proportion to the Rent otherwise
payable during such period as the gross rentable floor space of the Leased
Premises which are rendered untenantable bears to the gross rentable floor space
of the Leased Premises.
15.2 In the event of casualty damages in the circumstances set
forth in subsection 15.1 of this Agreement which do not result in a termination
of the Term, the Landlord shall cause restoration to proceed diligently and
expediently to the extent the Landlord has received proceeds of any property,
casualty or liability insurance on the damaged portions.
15.3 The Tenant shall promptly advise the Landlord by the
quickest means of communication of the occurrence or threatened occurrence of
any casualty damage to the Building or the Leased Premises of which the Tenant
becomes aware.
16 CONDEMNATION. If the Leased Premises, or any portion thereof, or
the Building or the Common Facilities, or any substantial portion of any of the
foregoing, shall be acquired for any public or quasi-public use or purpose by
statute, right of eminent domain or private sale in lieu thereof, with the
result the Tenant can not use and occupy the Leased Premises for the purpose set
forth in subsection 7.1 of this Agreement, the Tenant hereby waives any claim
against the Landlord, the condemning authority or other person acquiring same
for any thing of value, tangible or intangible, including, without limiting the
generality of the foregoing, the putative value of any leasehold interest or
loss of the use of same, except for any right the Tenant
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might have to make a claim, independent of, and without reference to or having
any effect on, any award or claim of the Landlord, against the condemning
authority or other acquiring party regarding the value of the Tenant's installed
trade fixtures and other installed equipment which are not removable from the
Leased Premises or for ordinary and necessary moving and relocation expenses
occasioned thereby.
17 ASSIGNMENT OR SUBLETTING BY TENANT.
17.1 Except as may be specifically set forth in this section 17
of the Agreement, the Tenant shall not:
17.1.1 assign, or purport to assign, this Agreement or any
of the Tenant's rights hereunder;
17.1.2 sublet, or purport to sublet, the Leased Premises or
any portion thereof;
17.1.3 license, or purport to license, the use or occupancy
of the Leased Premises or any portion thereof;
17.1.4 otherwise transfer, or attempt to transfer any
interest including, without limiting the generality of the foregoing, a
mortgage, pledge or security interest, in this Agreement, the Leased Premises or
the right to the use and occupancy of the Leased Premises; or
17.1.5 indirectly accomplish, or permit or suffer the
accomplishment of, any of the foregoing by merger or consolidation with another
entity, by acquisition or disposition of assets or liabilities outside the
ordinary course of the Tenant's business or by acquisition or disposition, by
the Tenant's equity owners or subordinated creditors, of any of their respective
interests in the Tenant.
17.2 The Tenant shall not assign this Agreement or any of the
Tenant's rights hereunder or sublet the Leased Premises or any portion thereof
without first giving 30 days' prior notice to the Landlord of its desire to
assign or sublet and requesting the Landlord's consent and without first
receiving the Landlord's prior written consent. The Tenant's notice to the
Landlord shall include:
17.2.1 the full name, address and telephone number of the
proposed assignee or sublessee;
17.2.2 a description of the type(s) of business in which
the proposed assignee or sublessee is engaged and proposes to engage;
17.2.3 a description of the precise use to which the
proposed assignee or sublessee intends to put the Leased Premises or portion
thereof;
17.2.4 the proposed assignee's or subtenant's most recent
quarterly and annual financial statements prepared in accordance with generally
accepted accounting principles
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and any other evidence of financial position and responsibility that the Tenant
or proposed assignee or sublessee may desire to submit;
17.2.5 by diagram and measurement of the actual square feet
of floor space, the precise portion of the Leased Premises proposed to be
subject to the assignment of this Agreement or to be sublet;
17.2.6 a complete, accurate and detailed description of the
terms of the proposed assignment or sublease including, without limiting the
generality of the foregoing, all consideration paid or given, or proposed to be
paid or to be given, by the proposed assignee, sublessee or other person to the
Tenant and the respective times of payment or delivery; and
17.2.7 any other information reasonably requested by the
Landlord.
17.3 By the expiration of the notice period contemplated by
subsection 17.2 of this Agreement, the Landlord, in its sole discretion, shall
take one of the following actions by notice to the Tenant:
17.3.1 grant consent on the terms and conditions set forth
in subsection 17.4 of this Agreement and such other reasonable terms and
conditions set forth in the Landlord's notice;
17.3.2 refuse to grant consent for any of the reasons set
forth in subsection 17.5 of this Agreement; or
17.3.3 elect to terminate the Term as of (a) the end of the
third full month after the Tenant has given notice of the Tenant's desire to
assign or sublet or (b) the proposed effective date of the proposed assignment
or sublease.
17.4 The Landlord's consent to the Tenant's proposed assignment
or sublease, if granted under subsection 17.3.1 of this Agreement, shall be
subject to all the following terms and conditions (and to any other terms and
conditions permitted by that subsection):
17.4.1 any proposed assignee or sublesee shall, by document
executed and delivered forthwith to the Landlord, agree to be bound by all the
obligations of the Tenant set forth in this Agreement;
17.4.2 the Tenant shall remain liable under this Agreement,
jointly and severally with any proposed assignee or sublessee, for the timely
performance of all obligations of the Tenant set forth in this Agreement;
17.4.3 the Tenant shall forthwith deliver to the Landlord
manually executed copies of all documents regarding the proposed assignment or
sublease and a written, accurate and complete description, manually executed
both by the Tenant and the proposed assignee or sublessee, of any other
agreement, arrangement or understanding between them regarding the same;
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17.4.4 with respect to any consideration or other thing of
value received or to be received by the Tenant in connection with any such
assignment or sublease (other than those payable in equal monthly installments
each month during the proposed term of any such assignment or sublease), the
Tenant shall pay to the Landlord one-half of any such amount and one-half of the
fair market value of any other thing of value within 10 days of receipt of same;
and
17.4.5 with respect to any amount payable to the Tenant in
equal monthly installments each month during the proposed term of any such
assignment or sublease in connection with such assignment or sublease, which
amount is in excess of the amount which bears the same ratio to the monthly
installment of Rent due from the Tenant as the usable floor space of the Leased
Premises subject to the assignment or sublease bears to the usable floor space
of the entire Leased Premises, the Tenant shall pay one-half of such excess to
the Landlord together with the Tenant's monthly installment of Rent.
17.5 The Landlord's refusal to grant consent under subsection
17.3.2 of this Agreement shall not be deemed an unreasonable withholding of
consent if based upon any of the following reasons (or any other reason
permitted by that subsection):
17.5.1 the Landlord desires to take the action enumerated
in subsection 17.3.3 of this Agreement:
17.5.2 there is already another assignee, sublessee or
licensee of all or a portion of the Leased Premises;
17.5.3 the proposed sublease is for a term of less than one
year;
17.5.4 the proposed sublease is for a term which would
expire after the Term;
17.5.5 less than one year remains in the Term as of the
proposed effective date of the proposed assignment or sublease;
17.5.6 the general reputation, financial position or
ability or type of business of, or the anticipated use of the Leased Premises by
the proposed assignee or proposed sublessee is reasonably unsatisfactory to the
Landlord or is inconsistent with those of tenants of Other Leased Premises or of
the Carnegie Center Complex or inconsistent with any commitment made by the
Landlord to any such other tenant;
17.5.7 the proposed consideration to be paid to the Tenant
during any period of 12 months is less than the amount of the Market Rental Rate
divided by the gross rentable floor space of the Leased Premises and multiplied
by that portion of the gross rentable floor space of the Leased Premise proposed
to be subject to the proposed assignment or sublease and the Tenant or any of
its agents shall have publicized such lower rate in any media or broad based
mailing;
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17.5.8 the gross rentable floor space of the portion of the
Leased Premises proposed to be sublet is less than one-third of the gross
rentable floor space of the Leased Premises; or
17.5.9 the proposed assignee or sublessee is a tenant of
other Leased Premises or other premises in the Carnegie Center Complex.
17.6 Notwithstanding anything to the contrary set forth in
section 17 of this Agreement, the Landlord hereby consents to the Tenant's
subletting the Leased Premises or portion thereof specified below if:
17.6.1 at or prior to the respective dates of exercise and
effectiveness thereof (a) (i) no Event of Default shall have occurred or (ii) if
an Event of Default shall have occurred, the Tenant shall have previously cured
it in full and the Landlord shall have waived it and (b) there shall not have
been a History of Recurring Events of Default; and
17.6.2 the Tenant and the proposed sublessee comply with
all the conditions set forth in subsections 17.4.1 through 17.4.3 of this
Agreement; and
17.6.3 at the date of effectiveness of the proposed sublet
there is not already more than one other assignee, sublessee or licensee of the
Leased Premises or any portions thereof; and
17.6.4 one of the following is applicable:
17.6.4.1 the proposed sublessee is, and continues
to be, an Affiliate of the Tenant, and if the proposed sublessee is also a
person controlling the Tenant the proposed sublessee shall also have and shall
continue to have a net worth at least as great as the greatest of the net worth
of the Tenant (i) on the Commencement Date, (ii) before the transaction or event
giving rise to such controlling relationship and (iii) immediately after the
transaction or event giving rise to such controlling relationship; or
17.6.4.2 the proposed sublessee is a person (a)
resulting from the merger or consolidation of the Tenant with or into such
person or (b) purchasing substantially all the assets (subject to substantially
all the liabilities) of the Tenant, provided either the Tenant or the proposed
sublessee shall have and shall continue to have a net worth at least as great as
the greatest of the net worth of the Tenant (i) on the Commencement Date, (ii)
before the transaction or event giving rise to such controlling relationship and
(iii) immediately after the transaction or event giving rise to such controlling
relationship.
18 SIGNS, DISPLAYS AND ADVERTISING.
18.1 The Tenant shall have one sign identifying the Landlord's
assigned number for the Leased Premises at the principal entrance to the Leased
Premises. The Tenant may identify itself in or on each of: the sign at the
principal entrance to the Leased Premises, the Building directory and the
directory, if any, on the floor of the Building on which the Leased
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Premises is located. All such signs, and the method and materials used in
mounting and dismounting them, shall be in accordance with the Landlord's
specifications. All such signs shall be provided and mounted by the Landlord at
the Landlord's expense, except that the Tenant shall bear any expense of
identifying itself on the sign at the principal entrance to the Leased Premises.
18.2 No other sign, advertisement, fixture or display shall be
used by the Tenant on the Property or in the Building or the Common Facilities.
Any signs other than those specifically permitted under subsection 18.1 of this
Agreement shall be removed promptly by the Tenant or by the Landlord at the
Tenant's expense.
19 QUIET ENJOYMENT. The Landlord is the owner of the Building, the
Property and those Common Facilities located on the Property. The Landlord has
the right and authority to enter into and execute and deliver this Agreement
with the Tenant. So long as an Event of Default shall not have occurred, the
Tenant shall and may peaceably and quietly have, hold and enjoy the Leased
Premises during the Term in accordance with this Agreement.
20 RELOCATION. At any time and from time to time during the Term, on
at least 60 days' prior notice to the Tenant, the Landlord shall have the right
to move the Tenant out of the Leased Premises and into premises having at least
equal floor space located in the Building or in any other comparable building
located in the Carnegie Center Complex for the duration of the Term. In the
event the Landlord exercises this right of relocation, the Landlord shall
decorate the new premises similarly to the Leased Premises and remove, relocate
and reinstall the Tenant's furniture, trade fixtures, furnishings and equipment,
all at the sole cost and expense of the Landlord. When the substitute new
premises are ready, the Tenant shall surrender the Leased Premises. Following
any such relocation, this Agreement shall continue in full force and effect
except for the description of the Leased Premises, the Building and the Property
which, upon completion of such relocation, shall be deemed amended to describe
the substitute new premises, building and property, respectively, to which the
Tenant shall have been relocated in accordance with this section 20 of the
Agreement.
21 SURRENDER. Upon termination of the Term, or at any other time at
which the Landlord, by virtue of any provision of this Agreement or otherwise
has the right to re-enter and re-take possession of the Leased Premises, the
Tenant shall surrender possession of the Leased Premises; remove from the Leased
Premises all property owned by the Tenant or anyone else other than the
Landlord; remove from the Leased Premises any alterations, improvements or other
modifications to the Leased Premises that the Landlord may request by notice;
make any repairs required by such removal; clean the Leased Premises; except in
the event of casualty damage to the Leased Premises which shall not have been
restored, leave the Leased Premises in as good order and condition as it was
upon the completion of any improvements contemplated by section 5 of this
Agreement, ordinary wear and use excepted; return all copies of all keys and
passes to the Leased Premises, the Common Facilities and the Building to the
Landlord; and, if termination of the term shall have occurred other than
exclusively in connection with expiration of the Term, receive the Landlord's
written acceptance of the Tenant's surrender. In those instances where written
acceptance of surrender is required, the Landlord shall not be deemed to
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have accepted the Tenant's surrender of the Leased Premises unless and until the
Landlord shall have executed and delivered the Landlord's written acceptance of
surrender to the Tenant, which shall not be unreasonably withheld or delayed.
22 EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an Event of Default under this Agreement:
22.1 the Tenant's failure to pay any installment of Basic Rent
or any amount of Additional Rent when it is first due, except in the case of the
first two instances thereof in any period of 12 consecutive months, in which
instances, the Tenant's failure to pay any installment of Basic Rent or any
amount of Additional Rent within five days after the Landlord's verbal advice to
the Tenant that any such amount was not received by the time it was first due;
22.2 the Tenant's failure to complete performance of any of the
Tenant's obligations under this Agreement (other than those contemplated by
subsection 22.1 of this Agreement) within 20 days after the Landlord shall have
given notice to the Tenant specifying which of the Tenant's obligations has not
been performed and in what respects, unless completion of performance within
such period of 20 days is not possible using diligence and expedience, then
within a reasonable time of the Landlord's notice so long as the Tenant shall
have commenced substantial performance within the first five days of such period
of 20 days and shall have continued to provide substantial performance,
diligently and expediently, through to completion of performance;
22.3 the discovery that any representation made by the Tenant in
this Agreement shall have been inaccurate or incomplete in any material respect
either on the date it was made or the date as of which it was made;
22.4 the sale, transfer or other disposition of any interest of
the Tenant in the Leased Premises by way of execution or other legal process;
22.5 with the exception of those of the following events to
which section 365 of the Bankruptcy Code shall apply in the context of an office
lease (in which case subsection 22.7 of this Agreement shall apply):
22.5.1 the Tenant's voluntarily becoming a "debtor," as
that term is defined in section 101 of the Bankruptcy Code;
22.5.2 in connection with the Tenant's involuntarily
becoming a "debtor," as that term is defined in section 101 of the Bankruptcy
Code, the earlier of: (i) the expiration of 60 days from the date of the filing
of the involuntary petition in bankruptcy without the Tenant's obtaining a
dismissal of the involuntary petition or (ii) the Bankruptcy Court's granting an
order for relief;
22.5.3 in connection with the appointment of a receiver or
trustee of the Tenant's property or affairs, the expiration of 60 days from that
time without the Tenant's obtaining a dismissal of such appointment; or
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22.5.4 the Tenant's making an assignment for the benefit
of, or an arrangement with or among, creditors or filing a petition in
insolvency or for reorganization or for the appointment of a receiver;
22.6 in the event of the occurrence of any of the events
enumerated in subsection 22.6 of this Agreement to which section 365 of the
Bankruptcy Code shall apply in the context of an office lease, the earlier of
the bankruptcy trustee's rejection or deemed rejection (as those terms are used
in section 365 of the Bankruptcy Code) of this Agreement; or
22.7 the Tenant's abandoning the Leased Premises before
expiration of the Term without the prior written consent of the Landlord.
23 RIGHTS AND REMEDIES.
23.1 Upon the occurrence of an Event of Default the Landlord
shall have all the following rights and remedies:
23.1.1 to elect to terminate the Term by giving notice of
such election, and the effective date thereof, to the Tenant and to receive
Termination Damages;
23.1.2 to elect to re-enter and re-take possession of the
Leased Premises, without thereby terminating the Term, by giving notice of such
election, and the effective date thereof, to the Tenant and to receive
Re-Leasing Damages;
23.1.3 if the Tenant remains in possession of the Leased
Premises after the Tenant's obligation to surrender the Leased Premises shall
have arisen, to remove the Tenant and the Tenant's and any others' possessions
from the Leased Premises by any of the following means without any liability to
the Tenant therefor, any such liability to the Tenant therefor which might
otherwise arise being hereby waived by the Tenant: legal proceedings (summary or
otherwise), writ of dispossession and any other means and to receive Holdover
Damages and, except in the circumstances contemplated by section 20 of this
Agreement, to receive all expenses incurred in removing the Tenant and the
Tenant's and any others' possessions from the Leased Premises, and of storing
such possessions if the Landlord so elects;
23.1.4 to be awarded specific performance, temporary
restraints and preliminary and permanent injunctive relief regarding Events of
Default where the Landlord's rights and remedies at law may be inadequate and,
in connection with any Event of Default involving the Tenant's failure to
perform its obligations under sections or subsections 7.2, 12, 13, 17.1, 17.2,
18, 20, 21, 26.3, 26.4 and 32, without the necessity of proving actual damages
or the inadequacy of the rights and remedies at law;
23.1.5 to receive all expenses incurred in securing,
preserving, maintaining and operating the Leased Premises during any period of
vacancy, in making repairs to the Leased Premises,, in preparing the Leased
Premises for re-leasing and in re-leasing the Leased Premises including, without
limiting the generality of the foregoing, any brokerage commissions;
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23.1.6 to receive all legal expenses, including without
limiting the generality of the foregoing, attorneys' fees incurred in connection
with pursuing any of the Landlord's rights and remedies, including
indemnification rights and remedies;
23.1.7 if the Landlord, in its sole discretion, elects to
perform any obligation of the Tenant under this Agreement (other than the
obligation to pay Rent) which the Tenant has not timely performed, to receive
all expenses incurred in so doing;
23.1.8 to elect to pursue any legal or equitable right and
remedy available to the Landlord under this Agreement or otherwise; and
23.1.9 to elect any combination, or any sequential
combination of any of the rights and remedies set forth in subsection 23.1 of
this Agreement.
23.2 In the event the Landlord elects the right and remedy set
forth in subsection 23.1.1 of this Agreement, Termination Damages shall be equal
to the amount which, at the time of actual payment thereof to the Landlord, is
the sum of:
23.2.1 all accrued but unpaid Rent;
23.2.2 the present value (calculated using the most
recently available (at the time of calculation) published weekly average yield
on United States Treasury securities having maturities comparable to the balance
of the then remaining Term) of the sum of all payments of Rent remaining due (at
the time of calculation) until the date the Term would have expired (had there
been no election to terminate it earlier) less the present value (similarly
calculated) of all payments of rent to be received through the end of the Term
(had there been no election to terminate it earlier) from a lessee, if any, of
the Leased Premises at the time of calculation; and
23.2.3 the Landlord's reasonably estimated cost of
demolishing any leasehold improvements to the Leased Premises.
23.3 In the event the Landlord elects the right and remedy set
forth in subsection 23.1.2 of this Agreement, Re-Leasing Damages shall be equal
to the Rent less any rent actually and timely received by the Landlord from any
lessee of the Leased Premises or any portion thereof, payable at the respective
times that Rent is payable under the Agreement.
23.4 In the event the Landlord elects the right and remedy set
forth in subsection 23.1.3 of this Agreement, Holdover Damages shall mean
damages at the rate per month or part thereof equal to the greater of: (a) one
and one-half times one-twelfth of the then Market Rental Rate plus all
Additional Rent as set forth in this Agreement or (b) double the average amount
of all payments of Rent due under this Agreement during each of the last 12 full
calendar months prior to the Landlord's so electing or, in the event the Term
shall have terminated by expiration under subsection 24.1.1 of this Agreement,
the last full 12 calendar months of the Term, in either case payable in full on
the first day of each holdover month or part thereof.
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23.5 In connection with any summary proceeding to dispossess and
remove the Tenant from the Leased Premises under subsection 23.1.3 of this
Agreement, the Tenant hereby waives:
23.5.1 any notices for delivery of possession thereof, of
termination, of demand for removal therefrom, of the cause therefor, to cease,
to quit and all other notices that might otherwise be required pursuant to 2 A
N.J.S.A. 18-53 ET SEQ.;
23.5.2 any right the Tenant might otherwise have to
transfer or remove such proceeding from the court (or the particular division or
part of the court) or other forum in which it shall have been instituted by the
Landlord to another court, division or part; and
23.5.3 any right the Tenant might otherwise have to appeal
any judgment awarding possession of the Leased Premises to the Landlord (but
this subsection shall not be deemed a waiver of any right the Tenant might
otherwise have to appeal any judgment other than a judgment awarding possession
of the Leased Premises to the Landlord).
23.6 The enumeration of rights and remedies in this section 23
of the Agreement is not intended to be exhaustive or exclusive of any rights and
remedies which might otherwise be available to the Landlord, or to force an
election of one or more rights and remedies to the exclusion of others,
concurrently, consecutively or sequentially. On the contrary, each right and
remedy enumerated in this section 23 of the Agreement is intended to be
cumulative with each other right and remedy enumerated in this section 23 of the
Agreement and with each other right and remedy that might otherwise be available
to the Landlord; and the selection of one or more of such rights and remedies at
any time shall not be deemed to prevent resort to one or more others of such
rights and remedies at the same time or a subsequent time, even with regard to
the same occurrence sought to be remedied. Nothing in this section 23 of the
Agreement shall be deemed to sanction recovery by the Landlord of damages for
unpaid Rent in arrears with respect to any given period under more than one of
the following subsections: 23.2, 23.3 and 23.4.
24 TERMINATION OF THE TERM.
24.1 The Term shall terminate upon the earliest of the following
events to occur:
24.1.1 expiration of the Term;
24.1.2 in connection with a transaction contemplated by
section 16 of this Agreement, the later of (a) the vesting of the acquiring
party's right to possession or (b) the Tenant's vacating the Leased Premises;
24.1.3 under the circumstances contemplated by
subsection 15.1 of this Agreement, upon the Tenant's giving notice of the
failure of the Landlord to give, on a timely basis, the notice contemplated by
subsection 15.1.2 of this Agreement (within 30 days of the last date that the
Landlord might timely have given timely notice under subsection 15.1.2 of this
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Agreement) and that the Tenant desires termination of the Term (which
termination shall be effective as of the date of the subject casualty with
respect to those portions of the Leased Premises rendered untenantable and as of
the date of the Tenant's giving notice with respect to those portions of the
Leased Premises which were not rendered untenantable);
24.1.4 under the circumstances contemplated by
subsection 15.1 of this Agreement, upon the expiration of 30 additional days
(without the Landlord's completion of restoration in the interim) after the
Tenant's notice that the Landlord has not restored the Leased Premises on a
timely basis and that the Tenant desires termination of the Term (which
termination shall be effective as of the date of the subject casualty with
respect to those portions of the Leased Premises rendered untenantable and as of
the date of the Tenant's giving notice with respect to those portions of the
Leased Premises which were not rendered untenantable);
24.1.5 the effective date of any election by the Landlord
under subsection 17.3.3 of this Agreement in response to the Tenant's notice of
the Tenant's desire to assign this Agreement or to sublet all or a portion of
the Leased Premises; or
24.1.6 the effective date of any election by the Landlord
to terminate the Term under subsection 23.1.1 of this Agreement.
24.2 No termination of the Term shall have the effect of
releasing the Tenant from any obligation or liability theretofore or thereby
incurred and, until the Tenant shall have surrendered the Leased Premises in
accordance with section 21 of this Agreement, from any obligation or liability
thereafter incurred.
25 MORTGAGE AND UNDERLYING LEASE PRIORITY. This Agreement and the
estate, interest and rights hereby created for the benefit of the Tenant are,
and shall always be, subordinate to any mortgage (other than a mortgage created
by the Tenant or a sale, transfer or other disposition by the Tenant in the
nature of a security interest in violation of subsections 17.1.4 and 22.5,
respectively, of this Agreement) already or afterwards placed on the Carnegie
Center Complex, the Property, the Common Facilities, the Building or any estate
or interest therein including, without limiting the generality of the foregoing,
any new mortgage or any mortgage extension, renewal, modification,
consolidation, replacement, supplement or substitution. This Agreement and the
estate, interest and rights hereby created for the benefit of the Tenant are,
and shall always be, subordinate to any ground lease already or afterwards made
with regard to the Carnegie Center Complex, the Property, the Common Facilities,
the Building or any estate or interest therein including, without limiting the
generality of the foregoing, any new ground lease or any ground lease extension,
renewal, modification, consolidation, replacement, supplement or substitution.
The provisions of this section 25 of the Agreement shall be self-effecting; and
no further instrument shall be necessary to effect any such subordination.
Nevertheless, the Tenant hereby consents that any mortgagee or mortgagee's
successor in interest may, at any time and from time to time, by notice to the
Tenant, subordinate its mortgage to the estate and interest created by this
Agreement; and upon the giving of such notice, the subject mortgage shall be
deemed subordinate to the estate and interest created by this Agreement
regardless of the respective times of execution or delivery of either or of
recording the subject mortgage.
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26 TRANSFER BY LANDLORD.
26.1 The Landlord shall have the right at any time and from time
to time to sell, transfer, lease or otherwise dispose of the Carnegie Center
Complex, the Property, the common Facilities or the Building or any of the
Landlord's interests therein, or to assign this Agreement or any of the
Landlord's rights thereunder.
26.2 upon giving notice of the occurrence of any transaction
contemplated by subsection 26.1 of this Agreement, the Landlord shall thereby be
relieved of any obligation that might otherwise exist under this Agreement with
respect to periods subsequent to the effective date of any such transaction. If,
in connection with any transaction contemplated by subsection 26.1 of this
Agreement the Landlord transfers, or makes allowance for, any Security Deposit
of the Tenant and gives notice of that fact to the Tenant, the Landlord shall
thereby be relieved of any further obligation to the Tenant with regard to any
such Security Deposit; and the Tenant shall look solely to the transferee with
respect to any such Security Deposit.
26.3 In the event of the occurrence of any transaction
contemplated by subsection 26.1 of this Agreement the Tenant, upon written
request therefor from the transferee, shall attorn to and become the tenant of
such transferee upon the terms and conditions set forth in this Agreement.
26.4 Notwithstanding anything to the contrary that may be set
forth in subsections 26.1, 26.2 and 26.3 of this Agreement, in the event any
mortgage contemplated by section 25 of this Agreement is enforced by the
respective mortgagee pursuant to remedies provided in the mortgage or otherwise
provided by law or equity and any person succeeds to the interest of the
Landlord as a result of, or in connection with, any such enforcement, the Tenant
shall, upon the request of such successor in interest, automatically attorn to
and become the Tenant of such successor in interest without any change in the
terms or provisions of this Agreement, except that such successor in interest
shall not be bound by: (a) any payment of Basic Rent or Additional Rent
(exclusive of prepayments in the nature of a Security Deposit) -for more than
one month in advance or (b) any amendment or other modification of this
Agreement which was made without the consent of such mortgagee or such successor
in interest; and, upon the request of such successor in interest, the Tenant
shall execute, acknowledge and deliver any instruments) confirming such
attornment.
26.5 If this Agreement and the estate, interest and rights
hereby created for the benefit of the Tenant are ever subject and subordinate to
any ground lease contemplated by section 25 of this Agreement:
26.5.1 upon the expiration or earlier termination of the
term of any such ground lease before the termination of the Term under this
Agreement, the Tenant shall attorn to, and become the Tenant of, the lessor
under any such ground lease and recognize such lessor as the Landlord under this
Agreement for the balance of the Term; and
26.5.2 such expiration or earlier termination of the term
of any such ground lease shall have no effect on the Term under this Agreement.
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26.6 Notwithstanding anything to the contrary that may be set
forth in section 25 of this Agreement, with respect to any mortgages or ground
leases contemplated by section 25 of this Agreement, the Landlord shall use its
best efforts to obtain from each such mortgagee and ground lessor its respective
standard form of non-disturbance, attornment and subordination agreement
including a provision to the effect that, in the event of enforcement of any
remedies provided in the respective mortgage or ground lease, respectively, or
otherwise, so long as an Event of Default shall not have occurred, the Tenant
shall not be disturbed in its possession of the Leased Premises in accordance
with this Agreement. Any processing or other fee that the mortgagee or ground
lessor may charge and any reasonable legal expense that the Landlord may incur
in connection with performing its obligations under this subsection shall be
paid by the Tenant and, with respect to any processing or other fee charged by
the mortgagee or ground lessor, in advance.
27 INDEMNIFICATION.
27.1 The Tenant shall, and hereby does, indemnify the Landlord
against any and all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses including, without limiting the generality of the
foregoing, expenses of investigation, defense and enforcement thereof or of the
obligation set forth in this section 27 of the Agreement including, without
limiting the generality of the foregoing, attorneys' fees, imposed on or
incurred by the Landlord in connection with any of the following matters which
occurs during the Term:
27.1.1 any matter, cause or thing arising out of the use,
occupancy, control or management of the Leased Premises or any portion thereof
which is not proximately caused by the Landlord's negligence or intentional
misconduct;
27.1.2 any negligence or intentional act on the part of the
Tenant or any of its employees, other agents or Guests;
27.1.3 any accident, injury or damage to any person or
property occurring in the Leased Premises which is not proximately caused by-the
Landlord's negligence intentional misconduct ;
27.1.4 any representation made by the Tenant in this
Agreement shall have been inaccurate or incomplete in any material respect
either on the date it was made or the date as of which it was made;
27.1.5 the imposition of any mechanic's, materialman's or
other lien on the Property, the Common Facilities, the Building, the
Leased-Premises or any-portion-of any of the foregoing, or the filing of any
notice of intention to obtain any such lien, in connection with any alteration,
improvement or other modification of the Leased Premises made or authorized by
the Tenant (which indemnification obligation shall be deemed to include the
Tenant's obligations set forth in subsection 12.2.4.3 of this Agreement); or
27.1.6 any failure on the part of the Tenant to perform or
comply with any obligation of the Tenant set forth in this Agreement.
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27.2 Payment of indemnification claims by the Tenant to the
Landlord shall be due upon the Landlord's giving notice thereof to the Tenant.
27.3 The Landlord shall promptly give notice of any claim
asserted, or action or proceeding commenced, against it as to which it intends
to claim indemnification from the Tenant and, upon notice from the Tenant so
requesting, shall forward to the Tenant copies of all claim or litigation
documents received by it. Upon receipt of such notice the Tenant may, by notice
to the Landlord, participate therein and, to the extent it may desire, assume
the defense thereof through independent counsel selected by the Tenant and
reasonably satisfactory to the Landlord. The Landlord shall not be bound by any
compromise or settlement of any such claim, action or proceeding without its
prior written consent.
28 PARTIES' LIABILITY.
28.1 None of the following occurrences shall constitute a breach
of this Agreement by the Landlord, a termination of the Term, an active or
constructive eviction or an occurrence requiring an abatement of Rent:
28.1.1 the inability of the Landlord to provide any utility
or service to be provided by the Landlord, as described in section 8 of this
Agreement which is due to causes beyond the Landlord's control, or to necessary
or advisable improvements, maintenance, repairs or emergency, so long as the
Landlord uses reasonable efforts and diligence under the circumstances to
restore the interrupted service or utility;
28.1.2 any improvement, modification, alteration or other
change made to the Carnegie Center Complex, the Property, the Building or the
common Facilities by the Landlord consistently with the Landlord's obligations
set forth in subsection 13.2 of this Agreement; and
28.1.3 any change in any Federal, state or local law or
ordinance.
28.2 Except for the commencement, duration or termination of the
Term (other than under the circumstances contemplated by subsection 15.1 of this
Agreement), the Tenant's obligation to make timely payments of Rent, the
Tenant's obligation to maintain certain insurance coverage in effect and the
period within which any option to Renew or any other type of option or optional
right exercisable by the Tenant must be exercised, any period of time during
which the Landlord or the Tenant is prevented from performing any of its
respective obligations under this Agreement because of fire, any other casualty
or catastrophe, strikes, lockouts, civil commotion, acts of God or the public
enemy, governmental prohibitions or preemptions, embargoes or inability to
obtain labor or material due to shortage, governmental regulation or
prohibition, shall be added to the time when such performance is otherwise
required under this Agreement.
28.3 In the event the Landlord is an individual, partnership,
joint venture, association or a participant in a joint tenancy or tenancy in
common, the Landlord, the partners, venturers, members and joint owners shall
not have any personal liability or obligation under or
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in connection with this Agreement or the Tenant's use and occupany of the Leased
Premises; but recourse shall be limited exclusively to the Landlord's interest
in the Building.
28.4 If, at any time during the Term, the payment or collection of
any Rent otherwise due under this Agreement shall be limited, frozen or
otherwise subjected to a moratorium by applicable law, and such limitation,
freeze or other moratorium shall subsequently be lifted, whether before or after
the termination of the Term, such aggregate amount of Rent as shall not have
been paid or collected during the Term on account of any such limitation, freeze
or other moratorium, shall thereupon be due and payable at once. There shall be
added to the maximum period of any otherwise applicable statute of limitation
the entire period during which any such limitation, freeze or other moratorium
shall have been in effect.
28.5 If this Agreement is executed by more than one person as
Tenant, their liability under this Agreement and in connection with the use and
occupancy of the Leased Premises shall be joint and several.
28.6 In the event any rate of interest, or other charge in the
nature of interest, calculated as set forth in this Agreement would lead to the
imposition of a rate of interest in excess of the maximum rate permitted by
applicable usury law, only the maximum rate permitted shall be charged and
collected.
29 SECURITY DEPOSIT. The Tenant shall pay to the Landlord upon
execution and delivery of this Agreement the sum of $14,228.00 as a security
deposit to be held by the Landlord as security for the Tenant's performance of
all the Tenant's obligations under this Agreement. The Landlord may commingle
the Security Deposit with its general funds. Any interest earned on the Security
Deposit shall belong to the Landlord. The Tenant shall not encumber the Security
Deposit. The Landlord, in its sole discretion, may apply the Security Deposit to
cure any Event of Default under this Agreement. If any such application is made,
upon notice by the Landlord to the Tenant, the Tenant shall promptly replace the
amount so applied. If there has been no Event of Default, within 30 days after
termination of the Term the Landlord shall return the entire balance of the
Security Deposit to the Tenant. The Tenant will not look to any foreclosing
mortgagee of the Property, the Building, the Common Facilities or any interest
therein for such return of the balance of the Security Deposit, unless the
mortgagee has expressly assumed the Landlord's obligations under this Agreement
or has actually received the balance of the Security Deposit.
30 REPRESENTATIONS. The Tenant hereby represents and warrants that:
30.1 its Standard Industrial Classification (SIC) code is 2834 and
it will promptly give notice of any change therein during the Term to the
Landlord;
30.2 no broker or other agent has shown the Leased Premises or the
Building to the Tenant, or brought either to the Tenant's attention, except
Princeton Realty Advisors L. P., whose entire commission therefor is set forth
in a separate document and which commission the Tenant understands will be paid
by the Landlord directly to the person named;
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30.3 the execution and delivery of, the consummation of the
transactions contemplated by and the performance of all its obligations under,
this Agreement by the Tenant have been duly and validly authorized by its
general partners, to the extent required by their partnership agreement and
applicable law, if the Tenant is a partnership or, if the Tenant is a
corporation, by its board of directors and, if necessary by its stockholders at
meetings duly called and held on proper notice for that purpose at which there
were respective quorums present and voting throughout or, alternatively, by
effective written consent of its board of directors and, if necessary, its
stockholders; and no other approval, partnership, corporate, governmental or
otherwise, is required to authorize any of the foregoing or to give effect to
the Tenant's execution and delivery of this Agreement; and
30.4 the execution and delivery of, the consummation of the
transactions contemplated by and the performance of all its obligations under,
this Agreement by the Tenant will not result in a breach or violation of, or
constitute a default under, the provisions of any statute, charter, certificate
of incorporation or bylaws or partnership agreement-of the Tenant or any
affiliate of the Tenant, as presently in effect, or any indenture, mortgage,
lease, deed of trust, other agreement, instrument, franchise, permit, license,
decree, order, notice, judgment, rule or order to or of which the Tenant or any
affiliate of the Tenant is a party, a subject or a recipient or by which the
Tenant, any affiliate of the Tenant or any of their respective properties and
other assets is bound.
31 RESERVATION IN FAVOR OF TENANT. Neither the Landlord's forwarding
a copy of this document to any prospective tenant nor any other act on the part
of the Landlord prior to execution and delivery of this Agreement by the
Landlord shall give rise to any implication that any prospective tenant has a
reservation, an option to lease or an outstanding offer to lease any premises.
32 TENANT'S CERTIFICATES AND MORTGAGEE NOTICE REQUIREMENTS.
32.1 Upon request of the Landlord at any time or from time to
time, but in no event more than 13 days after the Landlord's respective request,
the Tenant shall execute, acknowledge and deliver to the Landlord or its
designee an estoppel or other certificate, satisfactory in form and substance to
the Landlord and any of its mortgagees, ground lessors or lessees or transferees
or prospective mortgagees, ground lessors or lessees or transferees, with
respect to any of or all the following matters:
32.1.1 whether this Agreement is then in full force and
effect;
32.1.2 whether this Agreement has not been amended,
modified, superseded, canceled, repudiated or revoked;
32.1.3 whether the Landlord has satisfactorily completed
all construction work, if any, required of the Landlord or contractors selected
and retained by the Landlord in connection with readying the Leased Premises for
occupancy by the Tenant in accordance with section 5 of this Agreement;
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32.1.4 whether the Tenant is then in actual possession of
the Leased Premises;
32.1.5 whether, to its knowledge, the Tenant then has no
defenses or counterclaims under this Agreement or otherwise against the Landlord
or with respect to the Leased Premises;
32.1.6 whether, to the Tenant's knowledge, Landlord is not
then in breach of this Agreement in any respect;
32.1.7 whether the Tenant then has no knowledge of any
assignment of this Agreement, the pledging or granting of any security interest
in this Agreement or in Rent due and to become due under this Agreement;
32.1.8 whether Rent is not then accruing under this
Agreement in accordance with its terms;
32.1.9 whether any Rent is not then in arrears;
32.1.10 whether Rent due or to become due under this
Agreement has not been prepaid by more than one month;
32.1.11 if the response to any of the foregoing matters is
in the negative, a specification of all the precise reasons that necessitated
the negative response in each instance; and
32.1.12 any other matter reasonably requested by the
Landlord or any of its mortgagees, ground lessors or lessees or transferees or
prospective mortgagees, ground lessors or lessees or transferees, including,
without limiting the generality of the foregoing, such information as the
Landlord may reasonably request for purposes of assuring compliance with the
Environmental Cleanup Responsibility Act (13 N.J.S.A. ss.1K-6 ET SEQ.), as it
may be amended, and any other applicable Federal, state or local statute,
ordinance, rule, regulation or order concerned with environmental matters.
32.2 If, in connection with the Landlord's or a prospective
transferee's obtaining financing or refinancing of the Carnegie Center Complex,
the Property, the Building, the Common Facilities, any portion thereof or any
interest therein, the Landlord or a prospective lender shall so request, the
Tenant shall furnish to the requesting party within 15 days of the request:
32.2.1 its written consent to any requested modifications
of this Agreement provided that, in each such instance, the requested
modification does not increase the Rent otherwise due or, in the reasonable
judgment of the Tenant, otherwise materially increase the obligations of the
Tenant under this Agreement or materially adversely affect the Tenant's
leasehold interest created hereby or the Tenant's use and enjoyment of the
Leased Premises (except in the circumstances contemplated by section 16 of this
Agreement).
-34-
39
32.3 If the Landlord or any of its mortgagees gives notice to the
Tenant of any of their respective names and addresses from time to time, the
Tenant shall give notice to each such mortgagee of any notice of breach or
default previously or afterwards given by the Tenant to the Landlord under this
Agreement and provide in such notice that if the Landlord has not cured such
breach or default within any permissible cure period then such mortgagee shall
have the greater of (a) an additional period of 30 days or (b) if such default
cannot practically be cured within such period, such additional period as is
reasonable under the circumstances, within which to cure such default. Upon
request of the Landlord at any time or from time to time, the Tenant shall
execute, acknowledge and deliver to the Landlord or its designee an
acknowledgment of receipt of any such notice, an acknowledgment of receipt of
any notice of assignment of this Agreement or rights hereunder by the Landlord
to any of its mortgagees and the Tenant's agreement to the foregoing effect on
the respective forms,-if any, furnished by the Landlord or the respective
mortgagees.
32.4 Approximately (i) 90 days prior to the termination of the
Term and (ii) 30 days prior to any relocation of the Tenant from the Leased
Premises (as constituted on the Commencement Date), the Tenant shall obtain from
the New Jersey Department of -Environmental Protection, and deliver to the
Landlord, the Department's-unconditional certificate of non-applicability or
approval of the Tenant's negative declaration or clean-up plan, together with
copies of all documents furnished to the Department in connection with obtaining
such certificate or approval.
33 WAIVER OF JURY TRIAL AND ARBITRATION. The parties hereby waive any
right they might otherwise have to a trial by jury in connection with any
dispute arising out of or in connection with this Agreement or the use and
occupancy of the Leased Premises; and they hereby consent to arbitration of any
such dispute in Princeton, New Jersey, in accordance with the rules for
commercial arbitration of the American Arbitration Association or successor
organization, except that the Landlord, in its sole discretion, may, with
respect to any dispute involving either (i) the Landlord's right to re-enter and
re-take possession of the Leased Premises or (ii) the determination of money
damages following the occurrence of an Event of Default under this Agreement,
elect to pursue any of or all its rights in any court of competent jurisdiction.
Judgment upon any arbitration award may be entered in any court of competent
jurisdiction.
34 SEVERABILITY. In the event that any provision of this Agreement,
or the application of any provision in any instance, shall be conclusively
determined by a court of competent jurisdiction to be illegal, invalid or
otherwise unenforceable, such determination shall not affect the validity or
enforceability of the balance of this Agreement.
35 NOTICES. All notices contemplated, permitted or required by this
Agreement shall be in writing. All notices required by this Agreement shall be
delivered by messenger, by overnight courier service (such as Fedex and the
like) or by facsimile or forwarded by certified mail--return receipt requested,
addressed to the intended party at its address first set forth above (adding, in
the case of notices to the Landlord after the Commencement Date, "Attention:
Lease Administration") or, in the case of notices to the Tenant during the Term
or any other period
-35-
40
during which the Tenant shall be in possession of the Leased Premises, at the
Leased Premises. Either party may from time to time change the address
prescribed in this Agreement for notices to it by notice to the other. All
mailed notices required under this Agreement shall be deemed given upon their
deposit, properly addressed and postage prepaid, in a postal depository or upon
delivery by any of the other modes contemplated above, to the intended party,
regardless of whether delivery shall be refused.
36 CAPTIONS. Captions have been inserted at the beginning of each
section of this Agreement for convenience of reference only and such captions
shall not affect the construction or interpretation of any such section of this
Agreement.
37 COUNTERPARTS. This Agreement may be executed in more than one
counterpart, each of which shall constitute an original of this Agreement but
all of which, taken together, shall constitute one and the same Agreement.
38 APPLICABLE LAW. This Agreement and the obligations of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of New Jersey.
39 EXCLUSIVE BENEFIT. Except as may be otherwise specifically set
forth in this Agreement, this Agreement is made exclusively for the benefit of
the parties hereto and their permitted assignees and no one else shall be
entitled to any right, remedy or claim by reason of any provision of this
Agreement.
40 SUCCESSORS. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns.
41 AMENDMENTS. This Agreement contains the entire agreement of the
parties hereto, subsumes all prior discussions and negotiations and, except as
may otherwise be specifically set forth in this Agreement, this Agreement may
not be amended or otherwise modified except by a writing signed by all the
parties to this Agreement.
42 WAIVER. Except as may otherwise be specifically set forth in this
Agreement, the failure of any party at any time or times to require performance
of any provision of this Agreement shall in no manner affect the right at a
later time to enforce the same. No waiver by any party of any condition, or of
the breach of any term, covenant, representation or warranty set forth in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed to be or construed as a further or continuing waiver of any such
condition or breach, or as a waiver of any other condition or of the breach of
any other term, covenant, representation or warranty set forth in this
Agreement. The Landlord's acceptance of, or endorsement on, any partial payment
of Rent or any late payment of Rent from the Tenant shall. not operate as a
waiver of the Landlord's right to the balance of the Rent due on a timely basis
regardless of any writing to the contrary on, or accompanying, the Tenant's
partial payment or the Landlord's putative acquiescence therein.
-36-
41
43 COURSE OF PERFORMANCE. No course of dealing or performance by the
parties, or any of them, shall be admissible for the purpose of obtaining an
interpretation or construction of this Agreement at variance with the express
language of the Agreement itself.
44 LANDLORD'S CONCESSIONS.
44.1 Notwithstanding anything to the contrary that may be set
forth in subsection 5.4 of this Agreement, (a)(i) if no Event of Default shall
have occurred or (ii) if an Event of Default shall have occurred, the Tenant
shall have previously cured it in full and the Landlord shall have waived it and
(b) if the preparation of the Leased Premises contemplated by section 5 of this
Agreement is being accomplished exclusively through contractors selected by the
Landlord and (c) if the scope of the work contemplated by the Tenant Plan is
limited to (i) repainting those portions of the interior walls of the Leased
Premises in the Tenant's choice of building standard color where the Tenant does
not wish to retain existing wall treatments, (ii) recarpeting floors of the
Leased Premises with building standard carpet in the Tenant's choice of building
standard color (from the Landlord's existing inventory of building standard
carpet on hand) and (iii) constructing two offices in the Leased Premises with
building standard materials and finishes, the Landlord shall credit against any
amount otherwise due from the Tenant in accordance with subsection 5.4 of this
Agreement an amount equal to 100% thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
LANDLORD:
CARNEGIE CENTER ASSOCIATES
By: Princeton Carnegie Associates
By /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx, General Partner
TENANT:
ADVANCED MAGNETICS, INC.
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, Vice President
Scientific Operations
-37-
42
EXHIBIT A
LEASED PREMISES FLOOR SPACE DIAGRAM
43
EXHIBIT B
PROPERTY DESCRIPTION
DESCRIPTION OF 000 XXXXXXXX XXXXXX
XXXX XXXXXXX XXXXXXXX
XXXXXX XXXXXX, XXX XXXXXX
All that certain lot, parcel or tract of land situate and lying in the
Township of West Windsor, County of Xxxxxx and State of New Jersey and being
more particularly described as lot 70 in block 9, as shown on a map entitled
"Final Plat, Carnegie Center, Tax Xxx 0, Xxxxx 0, situate in West Windsor
Township, Xxxxxx County, New Jersey," dated February 11, 1980, and filed in the
Xxxxxx County Clerk's Office as Map No. 2426 on May 29, 1980, as the same may be
amended.
44
EXHIBIT C-
WORK LETTER
The following is the Work Letter referred to in the Agreement of which
this exhibit is a part.
The Building's structure is a three-story office building of Construction
Type 2C with a steel frame, a metal deck floor system, a brick exterior facade
and insulated glass. The floors will sustain a live load of 100 pounds per
square foot of usable floor space plus an allowance of 20 pounds per square foot
for partitions and will have a typical bay size of 30 feet by 30 feet.
Among other Common Facilities, the Building will contain two men's and
two women's bathrooms on each floor, two drinking fountains on each floor and
two hydraulic elevators with a capacity of 2,500 pounds each and will have
Parking Facilities with approximately 500 lined parking spaces. For purposes of
telecommunications hookups, a Building telephone switching room and space
between the finished ceilings and the underside of the floor above (or roof) are
provided as common Facilities.
"Building standard" shall mean the type and grade of material, equipment
or device designated by the Landlord as standard for leased premises in the
Building.
The Tenant will include the following information as part of its Tenant
Plan:
1. The location and extent of floor loading, if any, in excess of
the building standard specified above.
2. Special air conditioning requirements, if any, in excess of the
building standard.
3. Plumbing requirements, if any.
4. Estimated total electrical load, including lighting
requirements, lighting switch requirements and electrical outlet requirements,
if any, in excess of the building standard, setting forth the amount of the
load, locations and types.
45
EXHIBIT D-
BUILDING RULES AND REGULATIONS
The following are the Building Rules and Regulations adopted in
accordance with subsection 7.2.3 of the Agreement of which this exhibit is a
part; and the Tenant and the Tenant's employees, other agents and Guests shall
comply with these Building Rules and Regulations:
1. The sidewalks, driveways, entrances, passages, courts, lobby,
esplanade areas, plazas, elevators, vestibules, stairways, corridors, halls and
other Common Facilities shall not be obstructed or encumbered or used for any
purpose other than ingress and egress to and from the Leased Premises. The
Tenant shall not permit or suffer any of its employees, other agents or Guests
to congregate in any of the said areas. No door mat of any kind whatsoever shall
be placed or left in any public hall or outside any entry door of the Leased
Premises.
2. No awnings or other projections shall be attached to the
outside walls of the Building. No curtains, drapes, blinds, shades or screens
shall be attached to, hung in or used in connection with any window or door of
the Leased Premises without the prior written consent of Landlord. If such
consent is given, such curtains, drapes, blinds, shades or screens shall be of a
quality, type, design and color, and attached in the manner, approved by
Landlord.
3. Except as otherwise specifically provided in subsection 18.1 of
the Agreement, no sign, insignia, advertisement, object, notice or other
lettering shall be exhibited, inscribed, painted or affixed so as to be visible
from outside the Leased Premises or the Building. In the event of the violation
of the foregoing by the Tenant, the Landlord may remove same without any
liability and may charge the expense incurred in such removal to the Tenant.
4. The sashes, doors, skylights, windows, and doors that reflect
or admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed and no bottles, parcels or other
articles shall-be placed on the window xxxxx.
5. No showcase or other articles shall be placed in front of
or affixed to any part of the Building or the Common Facilities.
6. The lavatories, water and wash closets and other plumbing
fixtures shall not be used for any purposes other than those for which they were
designed and constructed, and no sweepings, rubbish, rags, acids or other
substances shall be thrown or deposited therein. All damages resulting from any
misuse thereof shall be repaired at the expense of the Tenant that permitted or
suffered the violation hereof by the Tenant, the Tenant's employees, other
agents or Guests.
7. The Tenant shall not xxxx, paint, drill into or in any way
deface any part of the Leased Premises, the Building, the Common Facilities or
the Property. No boring, cutting or stringing of wires shall be permitted,
except with the prior written consent of the Landlord,
46
and as the Landlord may direct. Linoleum and other resilient floor coverings
shall be laid so that the same shall not come in direct contact with the floor
of the Leased Premises; and if linoleum or other resilient floor coverings are
desired, an interlining of builder's deadening felt shall be first affixed to
the floor by a paste or other material that is, and will remain, soluble in
water. The use of cement or other adhesive material that either is not, or will
not remain, soluble in water is prohibited.
8. No bicycles, vehicles, animals, reptiles, fish or birds of any
kind shall be brought into or kept in or about the Leased Premises.
9. No noise including, without limiting the generality of the
foregoing, music or the playing of musical instruments, recordings, radio or
television which, in the reasonable judgment of Landlord, might disturb tenants
of Other Leased Premises shall be made or permitted by the Tenant. Nothing shall
be done or permitted in the Leased Premises by the Tenant which would impair or
interfere with the use or enjoyment of Other Leased Premises by any tenant
thereof. Nothing shall be thrown out of the doors, windows or skylights or down
the passageways of the Building.
10. The Tenant shall not manufacture any commodity, or prepare or
dispense any foods or beverages, tobacco, flowers or other commodities or
articles without the prior written consent of the Landlord.
11. Duplicates of keys and passes distributed to the Tenant by the
Landlord shall not be made. The Tenant shall provide appropriate security for
keys. Nothing shall be done to render any lock inoperable by the Building Grand
Master Key. No lock shall be installed without the Landlord's prior written
consent; and any lock so installed shall be operable by the Building Grand
Master Key. Upon termination of the Term, all keys, passes and duplicates
provided by the Landlord to the Tenant, or otherwise procured by the Tenant,
shall be returned to the Landlord. Any failure to comply with the foregoing
which requires changes in locks, new or additional keys, passes or duplicates or
other services of a locksmith shall be paid by the Tenant.
12. All deliveries and removals, and the carrying in or out of any
safes, freight, furniture, packages, boxes, crates or any other object or matter
of any description shall take place during such hours, in such manner and in
such elevators and passageways as the Landlord may determine from time to time.
The Landlord reserves the right to inspect all objects and matter being brought
into the Building or the Common Facilities and to exclude from the Building and
the Common Facilities all objects and matter that violates any of these Building
Rules and Regulations or that are contraband. The Landlord may (but shall not be
obligated to) require any person leaving the Building or the common Facilities
with any package or object or matter from the Leased Premises to establish his
authority from the Tenant to do so. The establishment and enforcement of such a
requirement shall not impose any responsibility on the Landlord for the
-protection of the Tenant against the removal of property from the Leased
Premises. The Landlord shall not be liable to the Tenant for damages or loss
arising from the admission, exclusion or ejection of any person to or from the
Leased-Premises or the Building or the Common Facilities under this rule.
X-0
00
00. The Tenant shall not place any object in any advertising or
display of such identifying sign.
14. The Landlord shall have the right to prohibit any advertising
or display of any identifying sign by the Tenant which in the Landlord's
judgment tends to impair the reputation of the Building or its desirability;
and, on written notice from the Landlord, the Tenant shall refrain from or
discontinue such advertising or display of such identifying sign.
15. The Landlord reserves the right to exclude from the Building
and the Common Facilities during hours other than Regular Business Hours all
persons who do not present a pass thereto signed by both the Landlord and the
Tenant. All persons entering or leaving the Building or the Common Facilities
during hours other than Regular Business may be required to sign a register. The
Landlord will furnish passes to persons for whom the Tenant requests same in
writing. The establishment and enforcement of such a requirement shall not
impose any responsibility on the Landlord for the protection of the Tenant
against unauthorized entry of persons.
16. The Tenant, before closing and leaving the Leased Premises at
any time shall see that all lights and appliances generating heat (other than
the heating system) are turned off. All entrance doors to the Leased Premises
shall be left locked by the Tenant when the Leased Premises are not in use. At
any time when the Building or the Common Facilities are locked during hours
other than Regular Business Hours, the Building and the Common Facilities locks
shall not be defeated by any means, such as by leaving a door ajar.
17. No person shall go upon the roof of the Building without the
prior written consent of the Landlord.
18. Any requirements of the Tenant may be attended to only upon
application at the office of the Building. The Landlord and its agents shall not
perform any work or do any work or do anything outside of the Landlord's
obligations under the Agreement except upon special instructions from the
Landlord on terms acceptable to the Landlord and the Tenant.
19. Canvassing, soliciting and peddling in the Building and the
Common Facilities are prohibited and the Tenant shall cooperate to prevent same.
20. There shall not be used in any space, or in the public halls
or other Common Facilities of the Building, in connection with the moving or
delivery or receipt of safes, freight, furniture, packages, boxes, crates,
paper, office material, or any other matter or thing, any hand trucks or dollies
except those equipped with rubber tires, side guards and such other safeguards
as the Landlord shall require. No hand trucks shall be used in passenger
elevators, and no passenger elevators shall be used for the moving, delivery or
receipt of the aforementioned articles. In connection with moving in or out any
Furniture, furnishings, equipment, heavy articles and heavy packages, the Tenant
shall take such precautions as may be
D-3
48
necessary to prevent excessive wear and tear in the Building's common Facilities
and the Leased Premises including, without limiting the generality of the
foregoing, floor and wall treatments.
21. The Tenant shall not cause or permit any odors of cooking or
other processes or any unusual or objectionable odors to emanate from the Leased
Premises which might constitute a Nuisance. No cooking shall be done in the
Leased Premises other than as specifically permitted in the Agreement.
22. The Landlord reserves the right not to enforce any Building
Rule or Regulation against any tenants of Other Leased Premises. The Landlord
reserves the right to rescind, amend or waive any Building Rule and Regulation
when, in the Landlord's reasonable judgment, it appears necessary or desirable
for the reputation, safety, care or appearance of the Building or the
preservation of good order therein or the operation of the Building or the
comfort of tenants or others in the Building. No rescission, amendment or waiver
of any Building Rule and Regulation in favor of one tenant shall operate as a
rescission, amendment or waiver in favor of any other tenant.
D-4
49
EXHIBIT E
DEFINITIONS AND INDEX OF DEFINITIONS
In accordance with section 1 of the Agreement of which this exhibit is a
part, throughout the Agreement the following terms and phrases shall have the
meanings set forth or referred to below:
1 "Additional Rent" means all amounts, other than Basic Rent and any
Security Deposit, required to be paid by the Tenant to the Landlord in
accordance with this Agreement.
2 "Affiliate" of any person means a person controlling, controlled by, or
under common control with, that person.
3 "Agreement" means this Lease and Lease Agreement (including exhibits), as
it may have been amended.
4 "Annual Amortized Capital Expenditure" means the payment amount
determined as an annuity payable in arrears using the cost incurred by the
Landlord for any Capital Expenditure as the present value, the number of years
of its useful life (not exceeding 10 years) selected by the Landlord in
accordance with generally applied real estate accounting practice as the number
of periods and the Base Rate in effect when the respective improvement is first
placed into service plus two additional percentage points as the annual rate of
interest.
5 "Base Rate" means the prime commercial lending rate per year as announced
from time to time by The Chase Manhattan Bank (National Association) at its
principal office in New York City.
6 "Basic Rent" is defined in subsection 3.2 of this Agreement.
7 "Building" means the office building erected on the Property which is
commonly known as 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, as it may,
in the Landlord's sole discretion, be increased, decreased, modified;-altered or
otherwise changed from time to time before, during or after the Term. As the
Building is presently constructed it consists of 100,338 gross rentable square
feet of floor space.
8 "Capital Expenditure" is defined in subsection 10.3 of this Agreement.
9 "Commencement Date" is defined in section 4 of this Agreement.
10 "Common Facilities" means the areas, facilities and improvements provided
by the Landlord in the Building.(except the Leased Premises and the Other Leased
Premises) and on or about the Property, including, without limiting the
generality of the foregoing, the Parking Facilities and access roads thereto,
sidewalks providing access to the Building, hallways,
50
stairways, elevators, lobbies and other public areas for non-exclusive use by
the Tenant in accordance with subsection 2.2 of this Agreement, as they may, in
the Landlord's sole discretion, be increased, decreased, modified, altered or
otherwise changed from time to time before, during or after the Term.
11 "Common Walls" means those walls which separate the Leased Premises from
Other Leased Premises.
12 "Electric Charges" means all the supplying utility's charges for, or in
connection with, furnishing electricity including charges determined by actual
usage, any seasonal adjustments, demand charges, energy charges, energy
adjustment charges and any other charges, howsoever denominated, of the
supplying utility, including sales and excise taxes and the like.
13 "Event of Default" is defined in section 22 of this Agreement.
14 "Expiring Term" means, when used in the context of any option to Renew,
the Term as it is then scheduled to expire (immediately prior to exercise of the
next available Option to Renew).
15 The Tenant's "Guests" shall mean the Tenant's licensees, invitees and all
others in, on or about the Leased Premises, the Building, the Common Facilities
or the Property, either at the Tenant's express or implied request or invitation
or for the purpose of soliciting or visiting the Tenant.
16 A "History of Recurring Events of Default" means the occurrence of three
or more Events of Default (whether or not cured by the Tenant) in any period of
12 months.
17 "Holdover Damages" is defined in subsection 23.4 of this Agreement.
18 The "Index" means the "all items" index figure for the New York
Northeastern New Jersey average of the Consumer Price Index for all urban wage
earners and clerical workers which uses a base period of 1982-84=100, published
by the United States Department of Labor, so long as it continues to be
published. If the Index is not published for a period of three consecutive
months, or if its base period is changed, the term "Index" shall mean that
index, as nearly equivalent in purpose, function and coverage as practicable to
the original Index, which the Landlord shall have designated by notice to the
Tenant.
19 "Initial Term" means the period so designated in subsection 4.1 of this
Agreement.
20 "Initial Year" means the first 12 full calendar months of the Initial
Term.
21 "Landlord" means the person so designated at the beginning of this
Agreement and those successors to the Landlord's interest in the Property and/or
the Landlord's rights and obligations under this Agreement contemplated by
section 26 of this Agreement.
X-0
00
00 "Leased Premises" means that portion of the interior of the Building (as
viewed from the interior of the Leased Premises) bounded by the interior sides
of the unfinished floor and the finished ceiling on the second floor (as the
floors have been designated by the Landlord) of the Building, the centers of all
Common Walls and the exterior sides of all walls other than Common Walls, the
outline of which floor space is designated on the diagram set forth in Exhibit A
attached hereto, which portion contains 4,445 square feet of usable floor space
and 5,174 square feet of gross rentable floor space; and references within this
Agreement to the gross rentable floor space and the usable floor space,
respectively, of the Leased Premises shall mean the respective quantities herein
specified.
23 "Legal Holidays" means New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
24 "Market Rental Rate" means, at the time of reference, the gross rentable
floor space of the Leased Premises multiplied by the greater of: (a) that annual
rate of Basic Rent per square foot of gross rentable floor space which is then
being quoted by the Landlord for comparable Other Leased Premises (or would then
be quoted if comparable Other Leased Premises were then available) or (b) that
annual rate of Basic Rent per square foot of gross rentable floor space in
effect during the Expiring Term.
25 "Municipality" means the Township of West Windsor in Xxxxxx County, New
Jersey, or any successor municipality with jurisdiction over the Property.
26 "Nuisance" means any condition or occurrence which unreasonably or
materially interferes with the authorized use and enjoyment of the Other Leased
Premises and the Common Facilities by any tenant of Other Leased Premises or by
any person authorized to use any other Leased Premises or Common Facilities or
with the authorized use of any other areas, buildings or other improvements in
the Carnegie Center Complex.
27 "Operational Expenses" is defined in subsection 10.2 of this Agreement.
28 "Option to Renew" is defined in subsection 6.1 of this Agreement.
29 "Other Leased Premises" means all premises within the Building, with the
exception of the Leased Premises, that are, or are available to be, leased to
tenants or prospective tenants, respectively.
30 "Parking Facilities" means the parking area adjacent to the Building,
containing the approximate number of lined parking spaces set forth in the Work
Letter, which parking area is provided as Common Facilities and which parking
area shall not be reduced in such a manner as to materially interfere with the
Tenant's requirements for parking for its employees, other agents and Guests.
31 "Person" includes an individual, a corporation, a partnership, a trust,
an estate, an unincorporated group of persons and any group of persons.
X-0
00
00 "Property" means the parcel of land, as it may, in the Landlord's sole
discretion, be increased, decreased, modified, altered or otherwise changed from
time to time before, during or after the Term, on which the Building is erected.
As the Property is presently constituted it is more particularly described in
Exhibit B attached hereto.
33 "Regular Business Hours" means 8:00 A.M. to 6:00 P.M., Monday through
Friday, except on Legal Holidays.
34 "Re-Leasing Damages" is defined in subsection 23.3.
35 "Renewal Term" means, at the time of reference, any portion of the Term,
other than the Initial Term, as to which the Tenant has properly exercised an
Option to Renew which Option to Renew `has not, been rescinded in accordance
with subsection 6.4.1 of this Agreement.
36 "Rent" means Basic Rent and Additional Rent.
37 "Security Deposit" is designated in section 29 of this Agreement.
38 "Target Date" means September 19, 1994.
39. "Taxes" means, in any calendar year, the aggregate amount of real
property taxes, assessments and sewer rents, rates and charges, state and local
taxes, transit taxes and every other governmental charge, whether general or
special, ordinary or extraordinary (except corporate franchise taxes and taxes
imposed on, or computed as a function of, net income or net profits from all
sources and except taxes charged, assessed or levied exclusively on the Leased
Premises or arising exclusively from the Tenant's occupancy of the Leased
Premises) charged, assessed or levied by any taxing authority with respect to
the Property, the Building, the Common Facilities and any other improvements on
the Property and an allocable portion of Taxes with respect to other portions of
the Carnegie center Complex, less any refunds or rebates (net of expenses
incurred in obtaining any such refunds or rebates) of Taxes actually received by
the Landlord during such calendar year with respect to any period during the
Term for the benefit of the Tenant, tenants of Other Leased Premises and the
Landlord. If during the Term there shall be a change in the means or methods of
taxing real property generally in effect at the beginning of the Term and
another type of tax or method of taxation should be substituted in whole or in
part for, or in lieu of, Taxes, the amounts calculated under such other types of
tax or by such other methods of taxation shall also be deemed to be Taxes. Until
such time as the actual amount of Taxes for any calendar year becomes known, the
amount thereof shall be the Landlord's estimate of Taxes for that calendar year.
40 "Tenant" means the person so designated at the beginning of this
Agreement.
41 "Tenant Electric Charges" means (a) during Regular Business Hours, none
and (b) during other than Regular Business Hours, a charge at the rate of $75.00
per hour or partial hour of use.
X-0
00
00 "Tenant Plan" means informal construction drawings and related
construction specifications regarding the build-out of the Leased Premises
including, without limiting the generality of the foregoing, the information
called for by the Work Letter, complying in all respects with applicable
building and fire codes and insurance underwriting standards in effect and in
sufficient detail to permit skilled contractors to supply and perform the work
called for therein.
43 "Tenant Plan Due Date" means September 7, 1994.
44 "Tenant's Share" of any amount means 5.16%.
45 "Term" means the Initial Term plus, at the time of reference, any Renewal
Term.
46 "Termination Damages" is defined in subsection 23.2 of this Agreement.
47 "Utilities Expenses" means Electric Charges (other than Tenant Electric
Charges) and all charges for any other fuel that may be used in providing
electricity and services powered by electricity that the Landlord provides in
accordance with section 8 of this Agreement to the Building, the Leased
Premises, Other Leased Premises, the Common Facilities and the Property,
including sales and excise taxes and the like.
48 "Work Letter" means Exhibit C attached hereto which generally describes
the type of construction of the Building.
X-0
00
XXXXXXX X
ACKNOWLEDGMENT AND AMENDMENT
CARNEGIE CENTER ASSOCIATES, as Landlord, and ADVANCED MAGNETICS, INC., as
Tenant, acknowledge and agree as follows:
1. The Tenant Plan, as it pertains to work other than repainting and
recarpeting ("TP2"), referred to in the Lease and Lease Agreement dated
September 6, 1994 (the "Agreement") between the Landlord and the Tenant for the
Leased Premises, was received on 1994 by the Landlord and consists of the
following:
[DESCRIPTION TO BE INSERTED]
2. Through contractors selected by it, the Landlord shall perform certain
work shown on the TP2 as itemized below, in a good and workmanlike manner, and
use its best efforts to achieve completion of that work in a timely manner after
receipt of the TP2 at a net price to the Tenant of $___________.___ (which is
net of all credits to the Tenant in accordance with the Lease and which includes
the Landlord's general contractor's fee).
[ITEMIZATION TO BE INSERTED]
3. The Tenant hereby authorizes the Landlord to proceed with preparation
of the Leased Premises in accordance with this Acknowledgment and Amendment and
the work shown on the TP2 as itemized above. Any subsequent changes in the work
shown on the TP2, together with related price and schedule adjustments, shall be
authorized only by a written change order signed by the Landlord and the Tenant.
The price reflecting the change order, if any, shall be paid for within 30 days
after completion of the work required by the change order.
4. Defined terms used herein shall have the respective meanings assigned
in the Agreement.
5. Except as specifically set forth above, the Agreement will be in full
force and effect in accordance with its original terms.
55
Date: , 1994 Landlord:
------------------------
By: Metric Construction &
Development, its Affiliate
By:
-------------------------------------
Xxxxxx Xxxxx
Director of Construction
Tenant: ADVANCED MAGNETICS, INC.
Date: , 1994 By:
-------------------------------------
Xxxxxx X. Xxxxx
Vice President
Scientific Operations
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