EXHIBIT 10.18
LEASE
BY AND BETWEEN
ARE-279 PRINCETON ROAD, LLC
as Landlord
and
COELACANTH CHEMICAL CORPORATION,
as Tenant
LEASE
THIS LEASE is made as of October 21, 1998 ("Effective Date"), by and
between ARE-279 PRINCETON ROAD, LLC., a Delaware limited liability company
("Landlord") and COELACANTH CHEMICAL CORPORATION, a Delaware corporation
("Tenant"). All Section references herein are to the provisions of this Lease,
unless expressly stated otherwise.
1. Lease of Premises
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
upon the terms and conditions hereof, that certain property more particularly
described on Exhibit A attached hereto (the "Property") and all improvements
located thereon, including, but not limited to, the building containing
approximately 42,600 square feet (the "Building"; the Building and the Property
are collectively referred to herein as the "Premises").
2. Basic Lease Provisions
2.1 For convenience of the parties, certain basic provisions of
this Lease are set forth herein.
2.1.1 ADDRESS OF THE BUILDING:
000 Xxxxxxxxx Xxxx
Xxxx Xxxxxxx, Xxx Xxxxxx 00000
2.1.2 Initial Basic Rent:
$254,386.25 per annum
2.1.3 Initial Monthly Installments of Basic Rent:
$21,198.85
2.1.4 (a) Commencement Date: October 21, 1998
(b) Expiration Date: January 31, 2004, subject
to extension as provided herein.
2.1.5 Security Deposit: $84,795.40, subject to
adjustment in accordance with Section 9.
2.1.6 Permitted Use: scientific research and
office uses consistent with Section 10.
2.1.7 Address for Rent Payment:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Accounts Receivable
Address for Notices to Landlord:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
2.1.8 Address for Notices to Tenant
Prior to Tenant occupying the Premises:
000 Xxxxxx Xxxxxx X-000
Xxx Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
After Tenant occupies the Premises, Tenant's
address shall be the address of the
Building.
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2.1.9 Guarantor of Lease: None
3. Term
3.1 This Lease shall be binding upon and inure to the benefit of
Landlord and Tenant, and each of their respective successors and permitted
assigns from and after the date hereof.
3.2 The term of this Lease (the "Term") will commence on the
Commencement Date and end on the Expiration Date, subject to any extension or
termination rights set forth herein.
4. Possession and Commencement Date
4.1 Landlord shall endeavor to tender possession of the Premises to
Tenant as soon as reasonably possible after the Effective Date, but in any event
on or before April 1, 1999 (the "Target Commencement Date"). Landlord shall have
no obligation to make any improvements in, or to perform any work to, the
Premises, and Tenant shall accept the Premises in "as-is" condition. The
provisions of the immediately preceding sentence shall not relieve Landlord of
its obligations set forth in Section 18.2 hereof. Tenant agrees, if Landlord
fails to so tender possession of the Premises on or before the Target
Commencement Date, Landlord shall not be liable to Tenant for any loss or damage
resulting there from, and this Lease shall not be void or voidable except as
specifically provided in this Section 4.1. If Landlord has not so tendered
possession of the Premises by the Target Commencement Date, then either Landlord
or Tenant may, by written notice to the other, elect to terminate this Lease. If
this Lease is terminated pursuant to this Section 4.1, the Security Deposit
shall be returned to Tenant and neither Landlord nor Tenant shall have any
further rights, duties or obligations under this Lease, except with respect to
provisions which, by their terms, survive termination of this Lease.
4.2 The Commencement date shall be October 21, 1998.
4.3 Landlord shall permit Tenant to enter the Premises prior to the
Commencement Date for purposes of developing plans and specifications for
improvements to be made by Tenant to the Premises, provided, that (i) Tenant
complies with any requirements imposed by Landlord regarding such entry, (ii)
Tenant shall furnish to Landlord evidence satisfactory to Landlord that
insurance overages required of Tenant under the provisions of Article 21 are in
effect, and (iii) Tenant acknowledges in writing that such entry shall be
subject to all the terms and conditions of this Lease other than the payment of
Basic Rent and Improvement Rent.
4.4 Landlord shall be permitted to access areas of the Premises
necessary for utilities, services, safety, repair and operation of the Building.
5. Rent
5.1 Tenant agrees, commencing on the Commencement Date, to pay Landlord
as Basic Rent for the Premises the sum set forth in Section 2.1.2 subject to the
rental increases provided in Section 6. Basic Rent shall be paid in equal
monthly installments, each in advance of the first day of each and every
calendar month during the Term. Notwithstanding anything to the contrary set
forth herein, Tenant shall have no obligation to pay Basic Rent for any period
prior to the Rent Commencement Date.
For purposes of this Lease, the term "Rent Commencement Date" shall
mean the earlier of (i) February 18, 1999, or (ii) the date Tenant commences the
conduct of business in any portion of the Premises. Notwithstanding anything to
the contrary contained in this Section 5.1, if the Rent Commencement Date occurs
as a result of Tenant occupying 4,000 square feet of space in the Building or
less, then Tenant shall pay a proportionate amount of Basic Rent and Improvement
Rent, if any, based upon the amount of square feet in the Building Tenant is
then occupying until the earlier of (x) the date Tenant is conducting business
in more than 4,000 square feet of space in the Building, or (y) February 18,
1999 (the period from the Rent Commencement Date until one of the events
described in clauses (x) or (y) occurs is hereinafter referred to as the
"Reduced Basic Rent Period"). During the Reduced Basic Rent Period, in addition
to the Basic Rent and the Improvement Rent provided above, Tenant shall pay all
costs required herein to be paid by Tenant pertaining to the Premises, provided
that Landlord shall be responsible for the payment of
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Impositions (as defined in Section 7.1 hereof) during such period. Beginning on
the day immediately after the Reduced Basic Rent Period, Tenant shall pay the
entire Basic Rent and Improvement Rent, if any, provided in Sections 2.1.2 and
5.2.1, respectively, and all costs required herein to be paid by Tenant,
including Impositions.
5.2 Throughout the Term, Landlord shall pay for the "build-out" of the
Premises and other similar improvements made by Tenant to the Premises ("Tenant
Improvements") in accordance with this Section 5.2 and Exhibit B, in an
aggregate amount not to exceed Two Million Dollars ($2,000,000.00) ("Tenant
Improvement Allowance"). Tenant Improvements shall not include repairs to the
Premises. In no event shall Landlord be required to disburse more than an
aggregate amount of $2,000,000.00 for the Tenant Improvements during the Term
(as same may be extended). In addition, Landlord shall not be obligated to
disburse the Tenant Improvement Allowance, if (a) Tenant is in Default of any of
its obligations under this Lease, (b) Tenant has been in Default under this
Lease four (4) or more times during the twelve (12) month period immediately
prior to the date Tenant requests payment of the Tenant Improvement Allowance,
(c) since the date of Tenant's initial occupancy of the Premises, Tenant does
not occupy at least forty-five percent (45%) of the Building, (d) the Tenant
Improvements in question are not completed within six (6) months after the
construction thereof has commenced.
5.2.1 Beginning on January 1, 2000, Tenant shall pay to
Landlord, on an monthly basis together with payments of Basic Rent, for each
month during the initial Term of this Lease, an amount equal to sixteen percent
(16%) per annum of the total Tenant Improvement Allowance paid by Landlord as of
such date and, during any Extension Term (as defined in Section 40.2 hereof), an
amount equal to twelve percent (12%) per annum of the total Tenant Improvement
Allowance paid by Landlord as of such date (collectively, the "Improvement
Rent"). The actual amount of such Improvement Rent shall be set forth in the
written acknowledgment by the parties.
5.2.2 Landlord shall not be obligated to make any payment of
the Tenant Improvement Allowance if Tenant commences Tenant improvements during
the last three years of the Term of this Lease, unless Tenant has exercised an
Extension Right in accordance with Article 40.
5.2.3 If, at any time during the Term of this Lease, fifty
percent (50%) or more of the ownership interests with full voting rights in
Tenant ("Voting Control") is owned or held by any person or entity, other than
Oak Investment Partners, L.P., and/or Oxford Biosciences, L.P. and/or any entity
controlling, controlled by or under common control with such respective
entities, then (i) Tenant shall pay Landlord, within ten (10) days after demand
therefore, all Tenant Improvement Rent payable during the remaining Term of this
Lease (including any Extension Term, if Tenant has then exercised its right to
extend the Term of this Lease); (ii) Landlord shall have no obligation to make
any further disbursements of the Tenant Improvement Allowance during the Term of
this Lease, except for disbursements in connection with a Tenant Improvement
which has been approved by Landlord as of the date Voting Control is not held by
the parties referred to above and the work for such Tenant Improvement has
commenced as of such date; and (iii) any principal balance of the Brokerage Loan
(as defined in Section 25.1) and any current and unpaid interest thereon shall
be due or payable in its entirety within ten (10) days after demand therefore.
For purposes of this Section 5.2.3 the terms "control", "controlling" or
"controlled" shall mean Voting Control.
5.3 In addition to Basic Rent and Improvement Rent, Tenant agrees to
pay to Landlord as additional rent ("Additional Rent"), at times hereinafter
specified in this Lease, any other amounts Tenant assumes or agrees to pay under
the provisions of this Lease that are owed to Landlord, including, without
limitation, any and all other sums due by reason of any default of Tenant or
failure of Tenant to comply with this Lease, after notice and lapse of
applicable cure period.
5.4 Basic Rent, Improvement Rent and Additional Rent shall together be
denominated "Rent". Rent shall be paid to Landlord, without abatement, deduction
or offset, in lawful money of the United States of America, at the office of
Landlord as set forth in Section 2.1.7 or to such other person or at such other
place as Landlord may from time designate in writing. If the Term commences or
ends on a day other than the first day of a calendar month, then the Rent for
such fraction of a month shall be prorated for such period on the basis of a
thirty (30) day month and a three hundred sixty (360) day year and shall be paid
at the then current rate for such fractional month.
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6. Rent Adjustments
On the second and fourth anniversary of the Commencement Date, Basic
Rent shall increase to one hundred two and one half percent (102.5%) of the
Basic Rent payable immediately before such adjustment.
Rent adjustments during the Extension Term shall be determined in
accordance with Section 40.2 hereof.
7. Taxes and Expenses
7.1 It is the intention of Landlord and Tenant that Basic Rent and
Improvement Rent, if any, herein specified shall be net to Landlord in each year
during the Term of this Lease. Accordingly, all costs, expenses, and obligations
of any kind relating to the Premises (except as otherwise specifically provided
in this Lease) which may arise or become due during the Term of this Lease shall
be paid by Tenant, and Landlord shall be indemnified by Tenant against such
costs, expenses and obligations.
7.1.2 Tenant shall pay as Additional Rent hereunder during the
Term, to the public officers charged with the collection thereof, before any
fine, penalty, interest or cost may be added thereto for the non-payment
thereof, all real estate taxes, assessments, water rates and water charges, and
other governmental charges, general and special, ordinary and extraordinary,
unforeseen as well as foreseen, of any kind and nature whatsoever in said
categories (all of which taxes, assessments, and other governmental charges are
hereafter referred to as "Imposition"), that are assessed, levied, confirmed,
imposed or become a lien upon the Premises or the sidewalks or streets in front
of or adjoining the Premises, or become payable, during the Term of this Lease;
provided, however, that if, by law, any such Imposition may at the option of the
taxpayer be paid in installments (with no interest accruing on the unpaid
balance of such Imposition), Tenant is required to pay only such installments as
may become due during the Term of this Lease before any fine, penalty, interest
or cost may be added thereto for the non-payment of any such installment. Any
Imposition relating to a fiscal period of the taxing authority, a part of which
period is included within the Term of this Lease and a part of which is included
in a period of time either before the Commencement Date or after the Expiration
Date, shall (whether or not such Imposition shall be assessed, levied,
confirmed, imposed or become a lien upon the Premises or shall become payable
during the Term of this Lease) be adjusted between Landlord and Tenant as of the
Commencement Date and/or Expiration Date as may be necessary so that Tenant
shall in no event pay any portion of such Imposition which is not applicable to
the Term of this Lease.
7.1.3 Nothing contained in this Lease shall require Tenant to
pay any franchise, corporate, estate, inheritance, succession, capital levy or
transfer tax of Landlord.
7.1.4 Tenant shall furnish to Landlord for its inspection,
upon Landlord's written request, within ten (10) days after the date any amount
is payable by Tenant, as provided in this Article, official receipts of the
appropriate taxing authorities or other proof satisfactory to Landlord
evidencing payment.
7.1.5 Tenant, at its sole cost and expense, shall have the
right to contest or appeal the validity of any Imposition or the amount of any
assessed valuation of the Premises, provided, that, (a) Tenant pays any
Impositions prior to contesting same, (b) Tenant obtains Landlord's approval,
which shall not be unreasonably withheld, prior to submitting any pleadings or
documents in connection with the contest or prior to agreeing to any settlement
of such contest, and (c) any action contesting any Imposition or assessment
shall not cause Landlord to incur any penalty or interest or in any manner
affect Landlord's ownership of the Premises. Landlord agrees that it shall
cooperate with Tenant in any such proceeding, provided, that Tenant reimburse
Landlord for the actual costs and expenses incurred by Landlord in connection
therewith. Tenant shall be entitled to any refund of any such Imposition or
other charges and penalties or interest thereon which have been paid by Tenant
less any costs incurred by Landlord in assisting Tenant in such proceedings. The
term "proceedings" as used herein shall include appeals to any superior or
appellate court or body having or claiming jurisdiction over the Premises.
Tenant agrees to indemnify and hold Landlord harmless from all costs, expenses,
liabilities and damages Landlord may incur as a result of Tenant bringing any
contest or appeal to the validity of any Imposition or the amount of any
assessed valuation of the Premises (which indemnity shall survive the
termination of this Lease).
7.1.6 Tenant shall pay, prior to delinquency, any and all
taxes levied against any personal property or trade fixtures placed by Tenant in
or about the Premises.
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8. Intentionally Deleted
9. Security Deposit
9.1 Tenant has deposited with Landlord the sum set forth in Section
2.1.5 (the "Security Deposit") in cash, which Security Deposit shall be held by
Landlord as security for the performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the Term. If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, any provision relating to the payment of Rent,
Landlord may (but shall not be required to) use, apply or retain all or any part
of the Security Deposit for the payment of any Rent or any other sum in default,
or to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant's default. If any portion of the Security Deposit is so used
or applied, Tenant shall, upon demand therefore, deposit cash with Landlord in
an amount sufficient to restore the Security Deposit to its original amount, and
Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep the Security Deposit separate from its general
fund, nor shall Tenant be entitled to any interest earned by Landlord on the
Security Deposit.
9.2 In lieu of depositing cash as the Security Deposit, Tenant shall
have the right, but not the obligation, to deliver to Landlord an unconditional,
irrevocable standby letter of credit in the amount of the Security Deposit set
forth in Section 2.1.5 (the "Letter of Credit"), which Letter of Credit shall:
(i) be in a form reasonably acceptable to Landlord, (ii) be issued by, and
confirmed by PNC Bank, N.A., or such other financial institution selected by
Tenant and reasonably acceptable to Landlord, (iii) be for the benefit of
Landlord, but shall be assignable by Landlord to any subsequent purchaser or
encumbrancer of the Building or the Property, (iv) be automatically renewable
from year to year throughout the term, (v) be payable by sight draft in New
Jersey, upon presentation of a certification signed by an officer of Landlord
which states a default under the Lease has occurred and has not been cured
within any applicable cure period, and (vi) be payable if such Letter of Credit
is not renewed on or before the date which is thirty (30) days prior to its
expiration. In the event that Tenant delivers to Landlord the Letter of Credit
for the Security Deposit, Landlord shall have the right to draw upon the Letter
of Credit and use such proceeds in the same manner as provided in Section 9.1
hereof.
9.3 As of the date that the Basic Rent and Improvement Rent, if any,
payable hereunder increases pursuant to Section 6 hereof, Tenant shall deposit
with Landlord an additional sum or deposit with Landlord a new Letter of Credit
so that the Security Deposit or the Letter of Credit is, at all times, equal to
four (4) months of the Basic Rent and Improvement Rent, if any, then required to
be paid by Tenant as of such date.
9.4 Upon the institution of any bankruptcy or other debtor-creditor
proceedings against Tenant, the Security Deposit shall be deemed to be applied
first to the payment of Rent and other charges due Landlord for all periods
prior to the filing of such proceedings.
9.5 Landlord may deliver the Security Deposit to any purchaser of
Landlord's interest in the Premises and thereupon Landlord shall be discharged
from any further liability with respect to the Security Deposit. This provision
shall apply to any subsequent transfers.
9.6 If Tenant shall fully perform every provision of this Lease to be
performed by Tenant, the Security Deposit, or any balance thereof, shall be
returned to Tenant (or, at Landlord's option, to the last assignee of Tenant's
interest hereunder) within ninety (90) days after the expiration or earlier
termination of this Lease.
10. Use
10.1 Tenant shall use the Premises for the purpose set forth in Section
2.1.6 (the "Permitted Use") and shall not use the Premises, or permit or suffer
the Premises to be used, for any other purpose without the prior written consent
of Landlord which may be withheld in Landlord's sold discretion. Notwithstanding
anything to the contrary set forth in this Section 10 or in Section 2.1.6,
Tenant agrees that at no time during the Term shall it alter or modify the
Premises in such a manner so as to convert laboratory space into office space,
nor shall Tenant permit any laboratory space to be used as office space, other
than the "Wet lab" areas which may be used by Tenant for office space without
such space being converted into office space as a result of Tenant performing
any alterations thereto.
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10.2 Tenant shall not use or occupy the Premises in violation of any
federal, state and local laws and regulations, zoning ordinances, or the
certificate of occupancy issued for the Building, and shall, upon three (3)
days' written notice from Landlord, discontinue any use of the Premises which is
declared or claimed by any governmental authority having jurisdiction over the
Premises to be a violation of law, regulation or zoning ordinance or of such
certificate of occupancy, or which in the opinion of Landlord violates any law,
regulation or zoning ordinance or the certificate of occupancy. Tenant shall
comply with any direction of any governmental authority having jurisdiction
which shall, by reason of the nature of Tenant's use or occupancy of the
Premises, impose any duty upon Tenant or Landlord with respect to the Premises
or with respect to the use or occupancy thereof.
10.3 Tenant shall not do or suffer to be done anything which will
invalidate or increase the cost of any fire, environmental, extended coverage or
any other insurance policy covering the Premises and shall comply with all
rules, orders, regulations and requirements of the insurers of the Premises
and/or the Building and Tenant shall promptly upon demand reimburse Landlord for
any additional premium charged for such policy by reason of Tenant's failure to
comply with the provisions of this Section 10.3.
10.4 No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by Tenant nor shall any changes be made in existing
locks or the mechanism thereof without the prior written consent of Landlord.
Tenant must, upon termination of this Lease, return to Landlord all keys to the
Premises or any part thereof, either furnished to, or otherwise procured by
Tenant. If any key so furnished or procured is lost, Tenant shall pay to
Landlord the cost of replacing the same or of changing the lock or locks opened
by such lost key if Landlord shall deem it necessary to make such change.
10.5 No awnings or other projection shall be attached to any outside
wall of the Building without Landlord's consent, which shall not be unreasonably
withheld or delayed.
10.6 No sign, advertisement or notice shall be exhibited, painted or
affixed by Tenant on or within any part of the Premises without the prior
written consent of Landlord which shall not be unreasonably withheld or delayed.
10.7 Notwithstanding any other provision herein to the contrary, Tenant
shall be responsible for all liabilities, costs and expense arising out of or in
connection with the compliance of the Premises with the Americans with
Disabilities Act, 42 U.S.C. Section 12101, et seq. (together with regulations
promulgated pursuant thereto, "ADA") and Tenant hereby indemnities and agrees to
defend and hold Landlord harmless from and against any loss, cost, liability or
expense (including reasonable attorneys fees and disbursements) arising out of
any failure of the Premises to comply with the ADA.
11. Brokers
11.1 Tenant represents and warrants it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease and
Tenant knows of no other real estate broker or agent who is or might be entitled
to a commission in connection with this Lease. Tenant hereby indemnifies and
shall defend, hold and save Landlord harmless from and against any and all
claims for any commissions or fees in connection with this Lease made by any
broker or finder having worked, or claiming to have worked, on behalf of Tenant.
If the representations in this Sections 11.1 are inaccurate, and as a result
thereof Tenant is responsible for paying any brokerage commission in connection
with this Lease, Landlord shall loan Tenant the amount of such brokerage
commission, in an amount not to exceed $70,000.00 (the "Brokerage Loan"). In
such event, Tenant shall execute loan documents reasonably satisfactory to
Landlord which shall provide that Tenant shall pay, in monthly installments,
interest on the amount loaned to tenant equal to twelve percent (12%) per annum
with the principal being repaid within five (5) years. Notwithstanding anything
to the contrary contained in this section 11.1, Landlord shall have no
obligation to make Brokerage Loan to Tenant if (i) Tenant is in Default of any
provisions of this Lease, or (ii) Tenant has been in Default under this Lease
four (4) or more times during the twelve (12) month period immediately prior to
the date Tenant requests Landlord to make the Brokerage Loan.
11.2 Landlord represent and warrants it has had no dealings with any
real estate broker or agent in connections with the negotiation of this Lease
and Landlord knows of no other real commission in connection with
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this Lease. Landlord hereby indemnifies and shall defend, hold and save Tenant
harmless from and against any and all claims for any commissions or fees in
connection with this Lease made by any broker or finder having worked, or
claiming to have worked, on behalf of Landlord.
12. Holding Over
12.1 If, with Landlord's express written consent, tenant holds
possession of all or any part of the Premises after the expiration or earlier
termination of the Term, Tenant shall become a tenant month-to-month upon date
of such expiration or earlier termination, and in such case Tenant shall
continue to pay Basic Rent and Improvement Rent, if any, in the amount payable
upon the date of the expiration or earlier termination of this lease or such
other amount as Landlord may indicate, in Landlord's sole and absolute
discretion, and all other provisions, representations, covenants and agreements
contained herein, other than with respect to the Term and any extensions
thereof, but specifically including, without limitations, the adjustment of
Basic rent pursuant to Section 6, shall remain in full force and effect.
12.2 Notwithstanding the foregoing, if tenant remains in possession of
the Premises after expiration or earlier termination of the Term without the
express written consent of Landlord, tenant shall become a tenant at sufferance
upon the terms of this Lease except the monthly rental shall be equal to one
hundred fifty percent (150%) of the Basic rent, the Improvement Rent, if any,
and Additional Rent in effect during the last thirty (30) days of the term.
Tenant shall be responsible for all damages suffered by Landlord resulting from
or occasioned by Tenant's holding over.
12.3 Acceptance by Landlord of Rent after such expiration or earlier
termination of the Term shall not result in a renewal or reinstatement of this
lease.
12.4 The foregoing provisions of this Article 12 are in addition to,
and do not affect, Landlord's right to re-entry or any other rights of Landlord
hereunder or as otherwise provided by law.
13. Intentionally Deleted
14. Condition of Premises
Tenant acknowledges neither Landlord nor any agent of Landlord has made
any representation or warranty with respect to the condition of the Premises or
the Building, or with respect to the suitability of same for the conduct of
tenant's business. The taking of possession of the Premises by Tenant shall,
except as otherwise agreed in writing by Landlord and Tenant, conclusively
establish the Premises and Building were at such time in good, sanitary and
satisfactory condition and repair.
15. Rule and regulations
15.1 Tenant shall Have the right to use the Premises, subject to the
rules and regulations adopted by Landlord and attached hereto as Exhibit "C",
together with such other reasonable and nondiscriminatory rules and regulations
as are hereafter promulgated by Landlord in its reasonable discretion (the
"Rules and Regulations").
16. Utilities and Services
16.1 Tenant shall pay for all water, (including the cost to service,
repair and replace reverse osmosis, deionized and other treated water), gas,
heat, light, power, telephone and other utilities supplied to the Premises,
together with any fees, surcharges and taxes thereon.
16.2 Landlord shall not be liable for, not shall any eviction of Tenant
result from, the failure to furnish any such utility or service whether or not
such failure is caused by accident, breakage, repairs, strikes, lockouts or
other labor disturbances or labor disputes of any character, governmental
regulation, moratorium or other governmental action, inability despite the
exercise of reasonable diligence or by any other cause, including the gross
negligence of Landlord. Upon any such failure, tenant shall not be entitled to
any abatement or reduction of rent, nor be relieved from operation of any
covenant or agreement of this lease.
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16.3 Tenant shall pay directly to the applicable utility or service
provider, prior to delinquency, for any separately metered utilities and
services which may be furnished to tenant or the Premises during the Term, and,
within five (5) days after request, deliver to Landlord evidence of such
payment.
16.4 Tenant shall not, without the prior written consent of Landlord,
use any device in the Premises, which will in any way increase the amount of
ventilation, air exchange, gas, steam, electricity or water beyond the existing
capacity of the Building.
16.5 Landlord reserves the right to stop service of the elevator,
plumbing, heating, ventilation, air conditioning and electric systems, when
necessary, by reason of accident or emergency or for repairs, alterations or
improvements, in the judgment of Landlord desirable or necessary to be made,
until said repairs, alterations or improvements shall have been completed, and
Landlord shall have no responsibility or liability for failure to supply
elevator facilities, plumbing, ventilation, heating, air conditioning or
electric service during any such period of interruption; provided, however, that
Landlord shall give Tenant twenty-four (24) hours advance notice of any planned
stoppage of services in the Building for routine maintenance and repair. No such
advance notice shall be required for unscheduled repairs. Landlord shall have no
responsibility or liability for failure to supply elevator facilities, plumbing,
ventilation, air conditioning or electric service, when prevented from doing so
by strike or accident, or by laws, rules, order, ordinances, directions,
regulations or requirements of any federal, state, county or municipal authority
or failure to deliver gas, oil or other suitable fuel supply or inability by
exercise or reasonable diligence to obtain gas, oil or other suitable fuel.
17. Alterations
17.1 Tenant shall comply with the provisions of Exhibit B in connection
with performing any Tenant Improvements. With respect to any alterations,
additions or improvements in or to the Premises which will not be paid for from
the Tenant Improvement Allowance, and is therefore not deemed to be a Tenant
improvement, Tenant shall comply with the following provisions of Exhibit B
attached hereto: Sections 1.1, 1.3, the first paragraph in Article 3, Sections
3.1, 3.3, 3.5, 5.1, 7.2 and 7.3, Article 8, Article 9 and Section 10.1. With
regard to any alterations made by Tenant, the time periods for any Landlord
approval or consent set forth in the articles and sections of Exhibit B referred
to above shall be ten (10) business days, rather than the time periods set forth
in said sections and articles. Except as expressly provided herein, Landlord's
consent shall not be required for any alteration, addition or improvement which
costs less than $50,000.00, when aggregated with the cost of any other work by
Tenant in the immediately preceding twelve (12) month period, but Tenant shall
give Landlord written notice of such improvements at least ten (10) business
days prior to the commencement of such work. For any improvements that do not
require Landlord's consent, Tenant shall comply with the provisions of Exhibit B
set forth above, other than those provisions that require Landlord's consent to
any plans with respect to such improvements. For any work or alteration which
costs more than $50,000.00 but less than $150,000.00, when aggregated with the
cost of any other work by Tenant in the immediately preceding twelve (12) month
period, Tenant must obtain Landlord's prior written consent, which approval
shall not be unreasonably withheld. For any work or alteration which costs more
than $150,000.00 when aggregated with the cost of any other work by Tenant in
the immediately preceding twelve (12) month period, Landlord's written consent
shall be required and may be withheld by Landlord in its sole and absolute
discretion. Notwithstanding anything to the contrary provided above, if any
proposed alteration, addition or improvement affects: (i) any structural
portions of the Building including exterior walls, roof, foundation and core of
the Building, (ii) the exterior of the Building, or (iii) any Building systems,
including elevator, plumbing, air conditioning, heating, electrical, security,
life safety and power, then Landlord may withhold its consent with respect
thereto in its sole and absolute discretion. In seeking Landlord's approval,
Tenant shall provide Landlord, at least 10 business days in advance of any
proposed construction, with plans, specifications, bid proposals, work contracts
and such other information concerning the nature and cost of the alterations as
may be reasonably requested by Landlord.
17.2 Tenant agrees there shall be no construction of partitions or
other obstructions which might interfere with free access to mechanical
installation or service facilities of the Building or interfere with the moving
of Landlord's equipment to or from the enclosures containing said installations
or facilities.
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17.3 Tenant agrees any work by Tenant shall be accomplished in such a
manner as to permit fire sprinkler system and fire water supply lines to remain
fully operable at all times.
17.4 Tenant covenants and agrees all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
directions, regulations and requirements of all governmental agencies, offices,
departments, bureaus and boards having jurisdiction, and in full compliance with
the rules, orders, directions, regulations, and requirements of any applicable
fire rating bureau. Tenant shall provide Landlord with "as-built" plans showing
any change in the Premises.
17.5 Before commencing any work which, (i) costs more than $50,000.00
(when aggregated with the cost of any other work by Tenant in the immediately
preceding 12 month period), or (ii) which Landlord does not have to be
reasonable in granting its approval pursuant to Section 17.1 hereof, tenant
shall, if required by Landlord, secure at Tenant's own cost and expense, a
completion and lien indemnity bond satisfactory to Landlord for said work.
17.6 All alterations, attached equipment, decorations, fixtures, trade
fixtures, additions and improvements, subject to Section 17.8, attached to or
built into the Premises, made by either of Landlord or Tenant, including
(without limiting the generality of the foregoing) all floor and wallcovering,
built-in cabinet work and paneling, sinks and related plumbing fixtures,
exterior venting fume hoods and walk-in freezers and refrigerators (if paid for
by the Landlord or with the proceeds of the Tenant Improvement Allowance), clean
rooms, climatized rooms, ductwork, conduits, electrical panels circuits, shall
become the property of Landlord upon expiration or earlier termination of the
term of this Lease, and shall remain upon and be surrendered with the Premises
as a part thereof; provided, however, Landlord may at any time elect to cause
Tenant to remove any such items from the Premises upon the expiration or earlier
termination of this Lease, and, if Landlord so elects, Tenant shall remove such
alterations, attached equipment, decorations, fixtures, trade fixtures,
additions and improvements upon the expiration or earlier termination of this
Lease and restore any damage caused by or occasioned as a result of such
removal.
17.7 Tenant shall repair any damage to the Premises caused by Tenant's
removal of any property from the Premises. During any such restoration period,
tenant shall pay Rent to Landlord as provided herein as if said space were
otherwise occupied by Tenant.
17.8 All moveable business and trade fixtures, machinery and equipment,
together with all additions and accessories thereto, installed in and upon the
Premises by Tenant, the removal of which shall not damage the Premises and which
were not paid for by the tenant Improvement Allowance, shall be and remain the
property of tenant and may be moved by Tenant at any time during the Term. If
Tenant shall fail to remove all of its effects from the Premises prior to
expiration or earlier termination of this Lease, then Landlord may, at its
option, remove the same in any manner Landlord shall choose, and store said
effects without liability to Tenant for loss thereof or damage thereto, and
Tenant agrees to pay Landlord upon demand any expenses incurred in connection
with such removal and storage or Landlord may, at its option, without notice,
sell said property or any of the same, at private sale without legal process,
for such price as Landlord may obtain and apply the proceeds of such sale
against any amounts due under this Lease from Tenant to Landlord and against any
expenses incident to the removal, storage and sale of said personal property.
17.9 Notwithstanding any other provision of this Article 17 to the
contrary, in no event may Tenant remove any improvement from the Premises as to
which Landlord contributed payment, including, without limitation, the Tenant
Improvements made pursuant to the Work Letter without Landlord's prior written
consent, which my be withheld in Landlord's sole discretion.
17.10 For any work or alteration which requires Landlord's consent
pursuant to Sections 17.1 hereof, Tenant shall pay to Landlord as Additional
Rent an amount equal to three percent (3%) of all amounts expended by Tenant to
complete any work alteration for monitoring and inspecting Tenant's work, which
amounts and costs shall not exceed $50,000.00, in the aggregate for any work or
alteration made in any twelve (12) month period. For purposes of payment of such
sum, Tenant shall submit to Landlord copies of all bills, invoices, and
statements covering the costs of such charges, which will be accompanied by
payment to the Landlord of the percentage fee set forth above. Tenant shall
reimburse Landlord for any extra expense incurred by Landlord by reason of
faulty work
9
done by Tenant or its contractors, or by reason of delays caused by such work,
or by, or by reason of delays caused by such work, or by reason of inadequate
cleanup.
18. Repairs and Maintenance
18.1 Tenant shall, at its own cost and expense, keep and maintain the
Premises, including, but not limited to, the parking areas, the heating,
ventilating and air conditioning systems and the sprinkler system in a
first-class manner consistent with other buildings of the same use and class and
located within the vicinity of the Premises, and all repairs and replacements
shall be in quality and class at least equal to the original work. Landlord
shall assign to Tenant all warranties and guaranties, if any, pertaining to any
component of the Premises which is Tenant's responsibility to maintain pursuant
to the terms hereof. Tenant shall, at its own cost and expense, maintain and
provide for regular lawn and general landscape maintenance and parking and
driveway repairs on the Premises.
Prior to Tenant making any repair to, or a replacement of, any
component of the Building, which costs more than ten thousand dollars
($10,000.00) and which, in accordance with generally accepted accounting
principles, would be deemed to be a capital improvement (a "Capital Repair"),
Tenant shall deliver to Landlord: (a) plans and specifications for any such
repair and/or replacement, (b) the contracts with the general contractor and all
subcontractors who are to perform such repair and/or replacements, and (c) any
and all warranties and guaranties from the companies supplying the replacement
components to the Building (collectively the "Construction Documents"). Tenant
agrees that it shall comply with the following provisions of Exhibit B in making
any Capital Repair: Sections 1.1, 1.3, the first paragraph in Article 3;
Sections 3.1, 3.3, 3.4, 3.5, 5.1, 7.2 and 7.3, Article 8, Article 9 and Section
10.1. With respect to any capital repair, the time periods provided for any
Landlord approval or consent set forth in the sections and articles of Exhibit B
referred to above shall be ten (10) business days, rather than the time periods
set forth in said sections and articles.
At any time prior to Landlord approving any Capital Repair, Landlord
shall have the right to elect to perform such Capital Repair pursuant to the
Construction Documents or pursuant to plans and specifications and contracts
mutually agreed to by Landlord and Tenant.
If Landlord does not elect to perform the Capital Repair, Landlord
shall reimburse Tenant for the cost actually paid by Tenant in performing the
Capital repair within thirty (30) days after receipt of the following documents
(the "Reimbursement Documents").
(a) invoices from the general contractor and all subcontractors
indicating that such invoices have been paid in full;
(b) a statement from the general contractor indicating that all amounts
payable to the general contractor under the general contract have been paid in
full and all subcontractors performing work with respect to the Capital Repair
has been paid in full;
(c) lien waivers from the general contractor and each subcontractor
performing the Capital Repair; and
(d) if there are plans and specifications for such Capital Improvement,
a certificate from a licensed architect providing that the Capital Repair has
been performed in accordance with the plans and specifications approved by
Landlord.
In no event shall Landlord have an obligation to reimburse Tenant for
the costs of performing a Capital Repair if Tenant is then in Default under this
Lease or if tenant has been in Default of any of its obligations under this
Lease more than four (4) times in the twelve (12) month period immediately prior
to the date Tenant delivers to Landlord the Reimbursement Documents. Any amounts
paid to Landlord in connection with a Capital Repair (whether or not Landlord
made the Capital Repair or reimbursed Tenant for the costs of a Capital Repair)
shall not be credited against the Tenant Improvement Allowance).
If Landlord reimburses Tenant for a Capital Improvement as provided
above or if Landlord performs any Capital Improvement on behalf of Tenant,
Tenant shall pay Landlord, as Additional rent on a monthly basis together with
payments of Basic rent, the following:
10
(a) for a repair which is not a replacement of any component
of the Building, Tenant shall pay the annual amortized cost of the Capital
Improvement amortized over the shorter of (i) the remaining useful life of the
asset as determined in accordance with generally accepted accounting principles,
and (ii) the remaining Term of this Lease, including any renewal options which
have not been exercised (or, if all renewal options have been exercised, for the
purposes of this Section 18.1 only, Tenant shall be deemed to have one renewal
option of 5 years), but in no event more than ten (10) years; and
(b) for a replacement of any component of the Building, as
compared to a repair thereof, Tenant shall pay the annual amortized cost of the
Capital Improvement amortized over the longer of (i) the remaining useful life
of the asset as determined in accordance with generally accepted accounting
principles, and (ii) the remaining Term of this Lease, including any renewal
options which have not been exercised (or, if all renewal options have been
exercised, for purposes of this Section 18.1 only, Tenant shall be deemed to
have one renewal option of 10 years).
18.2 Landlord shall, at its own cost and expense, maintain the
structural portions of the Premises, consisting of the roof, foundation and
footings, exterior and load bearing walls, load bearing cables and floors, and
shall in a reasonable manner repair or replace same as the need shall arise
unless due to the intentional acts or negligence of the Tenant, its agents,
servants, employees or invitees, in which case Tenant shall be responsible for
such repairs. Landlord shall have no obligation to maintain or repair any other
aspects of the premises, such responsibility being Tenant's pursuant to Section
18.1 hereof.
19. Liens
19.1 Subject to the immediately succeeding sentence, Tenant shall keep
the Premises and the Building free from any liens arising out of work performed,
materials furnished or obligations incurred by Tenant. Tenant further covenants
and agrees that any mechanic's lien filed against the Premises or against the
Building for work claimed to have been done for, or materials claimed to have
been furnished to Tenant, will be discharged by Tenant, by bond or otherwise,
within twenty (20) days after the filing thereof, at the sole cost and expense
of Tenant.
19.2 Should Tenant fail to discharge any lien described in Section 19.1
within the time periods provided therein, Landlord shall have the right, but not
the obligation, to discharge such lien. In such event, Tenant shall pay Landlord
as Additional Rent landlord's costs of discharging such lien within ten (10)
days after delivery to Tenant of notice of the costs incurred by Landlord. The
failure of Tenant to reimburse Landlord for such costs within such ten (10) day
period shall be a Default by Tenant, and Landlord shall have the right to
exercise any remedies it may have under this Lease.
19.3 Notwithstanding anything to the contrary contained in this Article
19, landlord hereby waives any lien it may have at law or in equity on any
personal property owned or used by Tenant, provided, that such personal property
was not paid for by the Tenant Improvement Allowance.
20. Indemnification and Exculpation
20.1 Tenant hereby indemnities and agrees to defend and save Landlord
harmless from and against any and all demands, claims, liabilities, losses,
costs, expenses, actions, causes of action, damages or judgments, and all
reasonable expenses incurred in investigating or resisting the same (including,
without limitation, reasonable attorneys' fees, charges and disbursements), for
injury or death to person or injury to property occurring within or about the
Premises, arising directly or indirectly out of Tenant's, its employees',
agents', or guests' use or occupancy of the Premises or a breach or default by
Tenant in the performance of any of its obligations hereunder, unless caused
solely by the willful act or gross negligence of the Landlord.
20.2 Landlord shall not be liable to Tenant and Tenant assumes all risk
of damage to personal property, production or scientific research, including
loss of records kept within the Premises, unless and except if such loss is due
to willful disregard of Landlord. Tenant further waives any claim for injury to
Tenant's business or loss of income relating to any such damage or destruction
of personal property including any loss of records.
11
20.3 Tenant acknowledges and agrees Landlord shall not be liable for
injuries or losses caused by criminal acts of third parties and the risk that
any security device or service may malfunction or otherwise be circumvented by a
criminal is assumed by Tenant. Tenant shall, at Tenant's sole cost, obtain
insurance coverage to the extent Tenant desires protection against such criminal
acts.
21. Insurance - Waiver of Subrogation
21.1 At all times during the Term of this Lease, Tenant, at its sole
cost and expense, shall maintain standard fire and extended coverage insurance
covering the Building and any other improvements on the Premises in an amount
not less than one hundred (100%) percent of the "replacement cost", insuring
against the perils of fire, lightning and extended coverage. Tenant shall
provide Landlord with a certificate of insurance on or before the Commencement
Date evidencing the insurance coverage as one hundred (100%) percent of the
replacement cost as provided above and renewal certificates shall be furnished
to Landlord at least thirty (30) days prior to the expiration date of each
policy for which the certificate was theretofore furnished.
The insurance required by Tenant pursuant to this Section 21.1
shall be obtained by Landlord, and Tenant shall reimburse Landlord for the cost
thereof within ten (10) days after receipt of notice of such cost from Landlord.
The payments due under this Section 21.1 shall be deemed to be Additional Rent.
If the Buildings or other improvements situated upon the
Premises should be damaged or destroyed by fire, tornado or any other casualty,
Tenant shall give immediate written notice thereof to Landlord.
21.2 At all times during the Term of this Lease, Tenant, at its own
cost, shall procure and maintain comprehensive public liability insurance with
limits of not less than $3,000,000.00 per occurrence for death or bodily injury
and not less than $1,000,000.00 for property damage with respect to the
Premises.
21.3 The aforesaid insurance required of Tenant shall name Landlord,
its officers, employees and agents, as additional insureds and, with respect to
the insurances described in Section 21.1, as a named insured (with all loss
proceeds thereof expressly being made payable to Landlord). Said insurance shall
be with companies having a rating of not less than a policyholder rating of A
and financial category rating of at least Class XII in "Best's Insurance Guide."
Tenant shall obtain for Landlord from the insurance companies or cause the
insurance companies to furnish certificates of coverage to Landlord. No such
policy shall be cancelable or subject to reduction of coverage or other
modification or cancellation except after 30 days prior written notice to
Landlord from the insurer. All such policies shall be written as primary
policies, not contributing with and not in excess of the coverage which Landlord
may carry. Tenant's policy may be a "blanket policy" which specifically provides
the amount of insurance shall not be prejudiced by other losses covered by the
policy. Tenant shall, at least 20 days prior to the expiration of such policies,
furnish Landlord with renewals or binders. Tenant agrees if Tenant does not take
out and maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and at its cost to be paid as
Additional Rent.
21.4 Tenant assumes the risk of damage to the Premises, the Building,
any fixtures, goods, inventory, merchandise, equipment, and leasehold
improvements, and Landlord shall not be liable for injury to Tenant's business
or any loss of income therefrom relative to such damage all as more particularly
heretofore set forth within this Lease. Tenant, at Tenant's cost, shall carry
such insurance as Tenant desires for Tenant's protection with respect to
personal property of Tenant or business interruption.
21.5 In each instance where insurance is to name Landlord, its
officers, employees and agents as additional insureds, Tenant shall upon written
request of Landlord also designate any one or more of the following as
additional insureds and deliver certificates evidencing same to the following
parties: (i) any lender of Landlord holding a security interest in the Building
or real property upon which the Building is situated, and/or (ii) the landlord
under any lease wherein Landlord is tenant of the real property upon which the
Building is located if the interest of Landlord is or shall become that of a
tenant under a ground lease rather than that of a fee owner, and/or (iii) any
management company retained by Landlord to manage the Premises, if any.
21.6 Landlord and Tenant each hereby waive any and all rights of
recovery against the other and against the officers, directors, employees,
agents, and representatives of the other, on account of loss or damage
occasioned
12
to such waiving party or its property or the property of others under its
control to the extent such loss or damage is insured against under any fire and
extended coverage insurance policy which either party may have in force at the
time of such loss or damage or which Tenant is required to carry pursuant to the
terms hereof. Each policy of insurance Tenant is required to procure and
maintain pursuant to the terms of this Article 21 shall contain a waiver by the
insurer of the right to subrogation against Landlord, including a statement that
the insurance shall not be invalidated should any insured waive in writing prior
to a loss any and all right of recovery against any party for loss of the
property described in the insurance policy.
21.7 Landlord may require insurance policy limits to be raised to
conform with requirements of Landlord's lender.
22. Damage or Destruction
22.1 Upon a partial destruction of the Building by fire or other perils
covered by extended coverage insurance, not exceeding twenty-five percent (25%)
of the full replacement cost thereof, and if the damage thereto is such that the
building may be repaired, reconstructed or restored within a period of six (6)
months from the date of the happening of such casualty and provided Landlord
receives insurance proceeds sufficient to cover the cost of such repairs,
Landlord shall commence and proceed diligently with the work of repair,
reconstruction and restoration and this Lease shall continue in full force and
effect.
22.2 Upon any damage to or destruction of the Building, other than as
provided in Section 22.1, Landlord may elect to repair, reconstruct and restore
the Building, in which case this Lease shall continue in full force and effect.
If Landlord elects not to repair then this Lease shall terminate as of date of
destruction.
22.3 Landlord shall give written notice to Tenant of its election not
to repair, reconstruct or restore the Building within the 60 day period
following the date of damage or destruction.
22.4 Upon any termination of this Lease under any of the provisions of
the Article, the parties shall be released thereby without further obligation to
the other from the date possession of the Premises is surrendered to Landlord
except for items which have theretofore occurred or any obligations which
specifically survive the termination of this Lease as provided in this Lease.
22.5 During any repair, reconstruction and restoration as herein
provided, the rental provided to be paid under this Lease shall be abated
proportionately based on the extent to which Tenant's use of the Premises is
impaired during the period of such repair, reconstruction or restoration, unless
Landlord provides Tenant with other space during the period of repair, which in
Tenant's reasonable opinion is suitable for the temporary conduct of Tenant's
business.
22.6 Notwithstanding anything to the contrary contained in this Article
22, should Landlord be delayed or prevented from completing the repair or
restoration of the damage to the Premises after the occurrence of such damage or
destruction by reason of acts of God, war, governmental restrictions, inability
to procure the necessary labor or materials, strikes, or other causes beyond the
control of Landlord, the time for Landlord to commence or complete repairs shall
be extended, provided, at the election of Landlord, Landlord shall be relieved
of its obligation to make such repairs or restoration and Tenant shall be
released from its obligation under this Lease as of the end of eight (8) months
from date of destruction, if repairs required to provide Tenant use of the
Premises are not then substantially complete.
22.7 If Landlord is obligated to or elects to repair or restore as
herein provided, Landlord shall be obligated to make repairs or restoration only
of those portions of the building and the Premises which were originally
provided at Landlord's expense; the repair and restoration of items not provided
at Landlord's expense shall be the obligation of Tenant. If Tenant elected to
upgrade certain improvements from the standard normally provided by Landlord,
Landlord shall, upon the need for replacement due to an insured loss, provide
only the standard Landlord improvements unless Tenant shall elect to again
upgrade and pay any additional cost of such upgrades, except to such extent as
insurance proceeds which, if received, the excess proceeds are adequate to
provide such upgrades, in addition to providing for basic reconstruction and
standard improvements.
13
22.8 Notwithstanding anything to the contrary contained in this
Article, Landlord shall not have any obligation whatsoever to repair,
reconstruct or restore the Premises when the damage resulting from any casualty
covered under this Article occurs during the last 24 months of the Term, or to
the extent insurance proceeds are not available therefore.
23. Eminent Domain
23.1 If the whole of the Premises, or such part thereof as shall
materially and substantially interfere with Tenant's use and occupancy thereof,
shall be taken for any public or quasi public purpose by any lawful power or
authority by exercise of the right of appropriation, condemnation or eminent
domain, or sold to prevent such taking, Tenant or Landlord may terminate this
Lease effective as of the date possession is required to be surrendered to said
authority.
23.2 Upon a partial taking of the Premises which does not materially
and substantially interfere with Tenant's use of the Premises, Landlord may
elect to terminate this Lease as of such taking if such taking is, in the sole
opinion of Landlord, of a material nature such as to make it uneconomical to
continue use of the unappropriated portion for purposes of leasing such space to
Tenant.
23.3 Tenant shall be entitled to any award which is specifically
awarded as compensation for the taking of Tenant's personal property, which was
installed at Tenant's expense and for costs of Tenant moving to a new location.
Except as set forth in the immediately preceding sentence, any award for such
taking shall belong to Landlord.
23.4 If, upon any taking of the nature described in this Article 23,
this Lease continues in effect, Landlord shall promptly proceed to restore the
Premises to substantially the same condition prior to such partial taking. To
the extent such restoration is feasible, as determined by Landlord in its sole
discretion, the Rent shall be abated proportionately based upon the extent to
which Tenant's use of the Premises has decreased on the basis of the percentage
of the rental value of the Premises after such taking and the rental value of
the Premises prior to such taking.
24. Defaults and Remedies
24.1 Late payment by Tenant to Landlord of Rent and other sums due will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult and impracticable to ascertain. Such costs
include, but are not limited to, processing and accounting charges and late
charges which may be imposed on Landlord by the terms of any mortgage or trust
deed covering the Premises. Tenant shall reimburse Landlord for any actual costs
Landlord incurs as a result of such late payments. In addition, Rent not paid
when due shall bear interest from the 5th day after the date due until paid at
the lesser of (i) 12% annum or (ii) the maximum rate permitted by law.
24.2 No payment by Tenant or receipt by Landlord of a lesser amount
than the Rent payment herein stipulated shall be deemed to be other than on
account of the Rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or pursue any other remedy
provided. If at any time a dispute shall arise as to any amount or sum of money
to be paid by Tenant to Landlord, Tenant shall have the right to make payment
"under protest" and such payment shall not be regarded as a voluntary payment,
and there shall survive the fight on the part of Tenant to institute suit for
recovery of the payment paid under protest.
24.3 If Tenant fails to pay any sum of money required to be paid by it
hereunder, or shall fail to perform any other act on its part to be performed
hereunder, Landlord may, without waiving or releasing Tenant from any
obligations of Tenant, but shall not be obligated to, make such payment or
perform such act. All sums so paid or incurred by Landlord, together with
interest thereon, from the date such sums were paid or incurred, at the annual
rate equal to 12% per annum or highest rate permitted by law, whichever is less,
shall be payable to Landlord on demand as Additional Rent.
14
24.4 The occurrence of any one or more of the following events shall
constitute "Default" hereunder by Tenant:
24.4.1 The failure by Tenant to make any payment of Rent as
and when due within three (3) days after the date such rent is due;
24.4.2 The failure by Tenant to observe or perform any
obligation or covenant contained herein (other than described in Sections 24.4.1
and 24.4.10) to be performed by Tenant, where such failure shall continue for a
period of 30 days after written notice thereof from Landlord to Tenant. Such
notice shall be in lieu of, and not in addition to, any notice required under
applicable law; provided, if Tenant's Default reasonably requires more than 30
days to cure, then Tenant shall not be deemed to be in default if Tenant shall
commence such cure within the said 30 day period and thereafter diligently
prosecute the same to completion, further provided, however, such cure is
completed no later than 90 days from the date of written notice;
24.4.3 Tenant makes an assignment for the benefit of
creditors;
24.4.4 A receiver, trustee or custodian is appointed to, or
does, take title, possession or control of all or substantially all, of Tenant's
assets;
24.4.5 Tenant files a voluntary petition under the Bankruptcy
Code (or any similar law) or an order for relief is entered against Tenant
pursuant to a voluntary or involuntary proceeding commenced under any chapter of
the Bankruptcy Code;
24.4.6 Any involuntary petition is filed against the Tenant
under any chapter of the Bankruptcy Code and is not dismissed within 90 days;
24.4.7 Tenant's interest in this Lease is attached, executed
upon, or otherwise judicially seized and such action is not released within 90
days of the action;
24.4.8 The use of the Premises or any part thereof for any
purpose other than expressly specified in Article 10 and such use shall continue
for a period of five (5) days after notice;
24.4.9 Tenant fails to maintain the insurance required
pursuant to Article 21, or Tenant fails to deliver to Landlord the insurance
certificates required by Article 21 within the time periods set forth in Article
21, and such default shall continue for a period of five (5) days after notice;
or
24.4.10 The failure by Tenant to observe or perform any
obligation or covenant contained in Article 39 hereof to be performed by Tenant,
where such failure shall continue for a period of 15 days after written notice
thereof from Landlord to Tenant. Such notice shall be in lieu of, and not in
addition to, any notice required under applicable law; provided, if Tenant's
Default reasonably requires more than 15 days to cure, then Tenant shall not be
deemed to be in default if Tenant shall Commence such cure within said 15 day
period and thereafter diligently prosecute the same to completion, further
provided, however, such cure is completed no later than 45 days from the date of
written notice.
Notices given under this Section 24.4 shall specify the alleged default and
shall demand Tenant perform the provisions of this Lease or pay the Rent that is
in arrears, as the case may be, within the applicable period of time, or quit
the Premises. No such notice shall be deemed a forfeiture or a termination of
this Lease unless Landlord elects otherwise in such notice.
24.5 This Lease and the Term and estate hereby granted are subject to
the limitation that whenever a Default shall have happened and be continuing,
Landlord shall have the right, at its election, then or thereafter while any
such Default shall continue and notwithstanding the fact that Landlord may have
some other remedy hereunder or at law or in equity, to give Tenant written
notice of Landlord's intention to terminate this Lease on a date specified in
such notice, which date shall be not less than five (5) days after the giving of
such notice, and upon the date so specified, this Lease and the estate hereby
granted shall expire and terminate with the same force and effect as if the date
specified in such notice were the date hereinbefore fixed for the expiration of
this Lease, and all right
15
of Tenant hereunder shall expire and terminate, and Tenant shall be liable as
hereinafter in this Section 24.5 provided. If any such notice is given, Landlord
shall have, on such date so specified, the right of re-entry and possession of
the Premises and the right to remove all persons and property therefrom and to
store such property in a warehouse or elsewhere at the risk and expense, and for
the account, of Tenant. Should Landlord elect to re-enter as herein provided or
should Landlord take possession pursuant to legal proceedings of pursuant to any
notice provided for by law, Landlord may from time to time re-let the Premises
or any part thereof for such term or terms and at such rental or rentals and
upon such terms and conditions as Landlord may deem advisable, with the right to
make commercially reasonable alterations in and repairs to the Premises.
24.6 In the event of any of any termination of this Lease as in this
Article 24 provided or as required or permitted by law, Tenant shall forthwith
quit and surrender the Premises to Landlord, and Landlord may, without further
notice, enter upon, re-enter, possess and repossess the same by summary
proceedings, ejectment or otherwise, and again have, repossess and enjoy the
same as if this Lease had not been made, and in any such event Tenant and no
person claiming through or under Tenant by virtue of any law or an order of any
court shall be entitled to possession or to remain in possession of the Premises
but shall forthwith quit and surrender the Premises. Landlord, at its option,
notwithstanding any other Provision of this Lease, shall be entitled to recover
from Tenant, as and for liquidated damages, the sum of:
(a) all Basic Rent, Improvement Rent, Additional Rent and
other amounts payable by Tenant hereunder then due or accrued and unpaid, and
(b) the amount equal to the aggregate of all unpaid Basic
Rent, Improvement Rent and Additional Rent which would have been payable if this
Lease had not been terminated prior to the end of the Term then in effect,
discounted to its then present value in accordance with accepted financial
practice using a rate of five percent (5%) per annum, for loss of the bargain;
and
(c) all other damages and expenses (including attorneys' fees
and expenses), if any, which Landlord shall have sustained by reason of the
breach of any provision of this Lease; less
(d) (i) the net proceeds of any re-letting actually received
by Landlord and (ii) the amount of damages which Tenant proves could have been
avoided had Landlord taken reasonable steps to mitigate its damages. Landlord
shall conclusively be deemed to have attempted to mitigate its damages if the
Premises are listed with a reputable broker doing business in the Xxxxxx County
area and requesting market rate.
24.7 Nothing herein contained shall limit or prejudice the right of
Landlord, in any bankruptcy or insolvency proceeding, to prove for and obtain as
liquidated damages by reason of such termination an amount equal to the maximum
allowed by any bankruptcy or insolvency proceedings, or to prove for and obtain
as liquidated damages by reason of such termination, an amount equal to the
maximum allowed by any statute or rule of law whether such amount shall be
greater or less than the excess referred to above.
24.8 Nothing in this Article 24 shall be deemed to affect the right of
either party to indemnifications pursuant to this Lease.
24.9 If Landlord terminates this Lease upon the occurrence of a
Default, Tenant will quit and surrender the Premises to Landlord or its agents,
and Landlord may, without further notice, enter upon, re-enter and repossess the
premises by summary proceedings, ejectment or otherwise. The words "enter",
"re-enter", and "re-entry" are not restricted to their technical legal meanings.
24.10 If either party shall be in default in the observance or
performance of any provision of this Lease, and an action shall be brought for
the enforcement thereof in which it shall be determined that such party was in
default, the party in default shall pay to the other all fees, costs and other
expenses which may become payable as a result there of or in connection
therewith, including attorneys' fees and expenses.
24.11 If tenant shall default in the keeping, observance or performance
of any covenant, agreement, term, provision or condition herein contained,
Landlord, without thereby waiving such default, may perform the same for the
account and at the expense of Tenant (a) immediately or at any time thereafter
and without notice in the
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case of emergency or in case such default will result in a violation of any
legal of insurance requirements, or in the imposition of any lien against all or
any portion of the Premises, and (b) in any other case if such default continues
after the cure period provided in Section 24.4.2 . All reasonable costs and
expenses incurred by Landlord in connection with any such performance by it for
the account of Tenant and also all reasonable costs and expenses, including
attorneys' fees and disbursements incurred by Landlord in any action or
proceeding (including any summary dispossess proceeding) brought by Landlord to
enforce any obligation of Tenant under this Lease and/or right of Landlord in or
to the Premises, shall be paid by Tenant to Landlord within ten (10) days after
demand.
24.12 Except as otherwise provided in this Article 24, no right or
remedy herein conferred upon or reserved to Landlord is intended to be exclusive
of any other right or remedy, and every right and remedy shall be cumulative and
in addition to any other legal or equitable right or remedy given hereunder, or
now or hereafter existing. No waiver of any provision of this Lease shall be
deemed to have been made unless expressly so made in writing. Landlord shall be
entitled, to the extent permitted by law, to seek injunctive relief in case of
the violation, or attempted or threatened violation, of any provision of this
Lease, or to seek a decree compelling observance or performance of any provision
of this Lease, or to seek any other legal or equitable remedy.
25. Assignment or Subletting
25.1 Without Landlord's prior written consent, Tenant shall not,
directly or indirectly, voluntarily or by operation of law, assign this Lease or
sublease the Premises or any part thereof or mortgage, pledge, or hypothecate
its leasehold interest or grant any concession or license within the Premises
and any attempt to do any of the foregoing shall be void and of no effect. For
purposes of this paragraph, a transfer of ownership interests controlling Tenant
shall be deemed an assignment of this Lease unless such ownership interests are
publicly traded or are in connection with a private placement, financing or
initial public offering. Notwithstanding the above, Tenant may assign or sublet
the Premises, or any part thereof, to any entity controlling Tenant, controlled
by Tenant or under common control with Tenant (a "Tenant Affiliate"), without
the prior written consent of Landlord. For purposes hereof, the term "control"
or "controlling" shall mean an ownership interest with full voting rights in
such entity of at least twenty percent (20%).
25.2 If Tenant desires to assign, sublease, hypothecate or otherwise
transfer this Lease or sublet the Premises to any person or entity, other than a
Tenant Affiliate, then at least 30 days, but not more than 90 days, prior to the
date Tenant desires the assignment or sublease to be effective (the "Assignment
Date"), Tenant shall give Landlord a notice (the "Assignment Notice") containing
such information about the proposed assignee or sublessee, including the
proposed use of the Premises and any Hazardous Materials proposed to be used or
stored in the Premises, the Assignment Date, any relationship between Tenant and
the proposed assignee or sublessee, and all material terms and conditions of the
proposed assignment or sublease, and such other information as Landlord may deem
reasonably necessary or appropriate to its consideration whether to grant its
consent. Landlord may, by giving written notice to Tenant within 30 days after
receipt of the Assignment Notice: (i) grant or refuse such consent, in its sole
but reasonable discretion with respect to subleases affecting less than 50% of
the total space in the Premises, and in Landlord's sole discretion with respect
to all other subleases and for any assignment, or (ii) terminate this Lease with
respect to the space described in the Assignment Notice, as of the Assignment
Date (an "Assignment Termination"). Notwithstanding anything to the contrary in
the immediately preceding sentence, Landlord shall only have the right to
terminate this Lease with respect to the space described in the Assignment
Notice, if after the proposed assignment or sublease Tenant will be occupying
less than either (x) forty-five percent (45%) of the space in the entire
Premises, or (y) less than the amount that Tenant initially occupied on the date
which is six (6) months after the Commencement Date. If Landlord elects an
Assignment Termination, this Lease, and the term and estate herein granted,
shall terminate as of the Assignment Date with respect to the space described in
such Assignment Notice. No failure of Landlord to exercise any such option to
terminate this Lease shall be deemed to be Landlord's consent to the proposed
assignment, sublease or other transfer. Tenant shall reimburse Landlord for all
of Landlord's reasonable out-of-pocket expenses in connection with its
consideration of any Assignment Notice. Landlord shall not be deemed to have
unreasonably withheld its consent to a sublease affecting less than 50% of the
space in the Premises, if Landlord determines, in its sole and absolute
discretion, that such sublease will have an adverse affect on Landlord's status
as a Real Estate Investment Trust, provided, however, if Landlord determines
that the terms and provisions of a sublease agreement, rather than the identity
of the subtenant, has an adverse affect on Landlord's status as a Real Estate
Investment Trust, Landlord shall notify Tenant with ten (10) days of
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discovering such fact, and shall notify Tenant as to those provisions in the
sublease agreement which need to be changed.
25.3 As a condition to any such assignment or subletting, Landlord may
require:
25.3.1 that any assignee or subtenant agree, in writing at the
time of such assignment or subletting, that if Landlord gives such third party
notice Tenant is in Default under this Lease, such third party shall thereafter
make all payments otherwise due Tenant directly to Landlord, which payments will
be received by Landlord without any liability except to credit such payment
against those due under the Lease, and any such third party shall agree to
attorn to Landlord or its successors and assigns should this Lease be terminated
for any reason; provided, however, in no event shall Landlord or its successors
or assigns be obligated to accept such attornment; and
25.3.2 a list of Hazardous Materials, certified by the
proposed assignee or sublessee to be true and correct, which the proposed
assignee or sublessee intends to use or store in the Premises together with the
Documents, referred to in Section 39.2 with respect to such proposed assignee or
sublessee.
25.4 Not withstanding any assignment or subletting, Tenant shall at all
times remain fully and primarily responsible and liable for the payment of Rent
and for compliance with all of Tenant's other obligations under this Lease.
Except for an assignment or sublease to a Tenant Affiliate, if the Rent due and
payable by a sublessee or assignee (or a combination of the rental payable under
such sublease or assignment plus any bonus or other consideration therefore or
incident thereto) exceeds the rental payable under this Lease, then Tenant shall
be bound and obligated to pay Landlord as additional Rent hereunder 50% of the
rental and other consideration which is in excess of 125% of the rental payable
under this Lease with ten (10) days following receipt thereof by Tenant. If
Tenant shall sublet the Premises or any part thereof, Tenant hereby immediately
and irrevocably assigns to Landlord, as security for Tenant's obligations under
this Lease, all rent from any such subletting and Landlord as assignee and as
attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord's
application, may collect such rent and apply it toward Tenant's obligations
under this Lease; except that, until the occurrence of an act of Default by
Tenant, Tenant shall have the right to collect such rent.
25.5 The consent by Landlord to an assignment or subletting shall not
relieve Tenant or any assignees of this Lease or sublessee of the Premises from
obtaining the consent of landlord to any further assignment or subletting nor
shall it release Tenant or any assignee or sublessee of Tenant from full and
primary liability under the Lease. The acceptance of Rent or any other sum due
hereunder, or the acceptance f performance of any other term, covenant, or
condition thereof, from any other person or entity shall not be deemed to be a
waiver of any of the provisions of this Lease or a consent to any subletting,
assignment or other transfer of the Premises.
25.6 Landlord, in its sole and absolute discretion, may provide any
subtenant with a tenant improvement allowance for improvements in the Premises
on terms and provisions similar to the provisions set forth in Section 5.2.1
hereof.
25.7 With respect to all subleases and assignments (whether or not
Landlord has the right to consent to same), Tenant shall deliver to Landlord a
duly executed sublease or assignment agreement, as the case may be, for
Landlord's approval, which approval shall not be unreasonably withheld or
delayed. Landlord shall not be deemed to have unreasonably withheld its approval
to any sublease or assignment agreement if such sublease or assignment will in
any manner adversely affect Landlord's status as a real estate investment rust,
in the sole and absolute discretion of Landlord.
26. Attorneys' Fees and Costs
26.1 If either party commences an action against the other party
arising out of or in connection with this Lease, the prevailing party shall be
entitled to have and recover from the non-prevailing party reasonable attorneys'
fees, charges and disbursements and costs of suit.
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27. Bankruptcy
27.1 If a debtor, trustee, or debtor in possession under the Bankruptcy
Code, or other person with similar rights, duties and powers under any other
law, proposes to cure any default under this Lease or to assume or assign this
Lease, and is obliged to provide adequate assurance to Landlord that: (i) a
default will be cured, (ii) Landlord will be compensated for its damages arising
from any breach of this Lease, or (iii) future performance under this Lease will
occur, then adequate assurance shall include any or all of the following, as
designated by Landlord:
27.1.1 Those acts specified in the Bankruptcy Code or other
law as included within the meaning of adequate assurance, even if this Lease
does not concern a shopping center or other facility described in such laws;
27.1.2 A prompt cash payment to compensate Landlord for any
monetary defaults or actual damages arising directly from a breach of this
Lease;
27.1.3 A cash deposit in an amount at least equal to the
Security Deposit as referenced in 2.1.5 originally required at time of execution
of this Lease, as same may have been increased pursuant to Section 9.2.
27.1.4 The assumption or assignment of all of Tenant's
interest and obligations under this Lease.
28. Estoppel Certificate
Tenant shall, within 10 days of written notice from Landlord, execute,
acknowledge and deliver a statement in writing substantially in the form
attached to this Lease as Exhibit "D" with the blanks filled in, and on any
other form reasonably requested by a proposed lender or purchaser, (i)
certifying this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying this Lease as
so modified is in full force and effect) and the dates to which the rental and
other charges are paid in advanced, if any, (ii) acknowledging there are not, to
Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or
specifying such defaults if any are claimed and (iii) setting forth such further
information with respect to this Lease or the Premises as may be requested
thereon by Landlord. Any such statement may be relied upon by any prospective
purchaser or encumbrancer of all or any portion of the real property of which
the Premises are a part. Tenant's failure to deliver such statement within such
time shall, at the option of Landlord, constitute a Default under this Lease,
and, in any event, shall be conclusive upon Tenant that the Lease is in full
force and effect and without modification except as may be represented by
Landlord in any certificate prepared by Landlord and delivered to Tenant for
execution.
29. Joint and Several Obligations
29.1 If more than one person or entity executes this Lease as Tenant,
29.1.1 Each of them is jointly and severally liable for the
keeping, observing and performing of all of the terms, covenants, conditions,
provisions and agreements of this Lease to be kept, observed and performed by
Tenant, and
29.1.2 The term "Tenant" as used in this Lease shall mean and
include each of them jointly and severally. The act of, notice from, notice to,
refund to, or the signature of, any one or more of them, with respect to the
tenancy of this Lease, including, but not limited to, any renewal, extension,
expiration, termination or modification of this Lease, shall be binding upon
each and all of the persons and/or entities executing this Lease as Tenant with
the same force and effect as if each and all of them had so acted, so given or
received such notice or refund or so signed.
30. Definition of Landlord: Limitation of Landlord's Liability
30.1 The term "Landlord" as used in this Lease shall mean ARE-279
Princeton Road, LLC or its successor-in-interest under this Lease at the time in
question. Upon any transfer, assignment or conveyance of all of Landlord's
interest in the Premises ("Landlord's Interest"): (i) the person or entity who
is then Landlord shall without further action be freed and relieved, from and
after the date of such transfer, assignment or conveyance, of
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all liability for the performance of any covenants or obligations contained in
this Lease thereafter to be performed by Landlord and, (ii) the transferee of
Landlord's Interest shall, without further action, be deemed to have assumed and
agreed to observe and perform any and all obligations of Landlord hereunder
during its ownership of Landlord's Interest. Landlord may transfer all or any
portion of its interest in the Building, the Premises or this Lease without the
consent of Tenant and any such transfer or subsequent transfer shall not be
deemed a violation of any of the terms or conditions of this Lease.
30.2 If Tenant recovers a money judgment against Landlord as a result
of: (i) any breach of this Lease by Landlord, or (ii) any breach of any duty or
obligation of any kind however arising owed by Landlord to Tenant as a
consequence of the landlord/tenant relationship created hereunder, such judgment
shall be satisfied only out of the interest of Landlord in the Building and not
out of any other assets of Landlord, the parties hereby expressly agreeing that
Landlord shall not be personally liable for any such money judgment.
30.3 If Landlord is a partnership, limited liability company or joint
venture, the members of such limited liability company or the partners of such
partnership shall not be personally liable and no member or partner of Landlord
shall be sued or named as a party in any suit or action or service of process be
made against any partner of Landlord except as may be necessary to secure
jurisdiction of the partnership, limited liability company or joint venture. If
Landlord is a corporation, the shareholders, directors, officers, employees,
and/or agents of such corporation shall not be personally liable and no
shareholder, director, officer, employee or agent of Landlord shall be sued or
named as a party in any suit or action or service of process made against any
shareholder, director, officer, employee or agent of Landlord. No partner,
member shareholder, director, employee, or agent of Landlord shall be required
to answer or otherwise plead to any service of process and no judgment will be
taken or writ of execution levied against any partner, member, shareholder,
director, employee or agent of Landlord.
30.4 Each of the covenants and agreements of this Article 30 shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or by common law and shall survive the termination of the
Lease.
31. Premises Control by Landlord
31.1 Landlord reserves full control over the Premises to the extent not
inconsistent with Tenant's use and enjoyment of the Premises. This reservation
includes but is not limited to right of Landlord to grant easements and licenses
to others and the right to maintain or establish ownership of the Building
separate from fee title to the land on which the Building is located.
31.2 Tenant shall, should Landlord so request, promptly join with
Landlord in execution of such documents as may be reasonably appropriate to
assist Landlord to implement any such action, provided Tenant need not execute
any document which imposes liability on Tenant or materially and substantially
deprives Tenant of the quiet enjoyment and use of the Premises pursuant to this
Lease.
31.3 Landlord may, at any and all reasonable times during non-business
hours (or during business hours if Tenant so requests), and upon reasonable
advance notice (provided no time restrictions shall apply or advance notice need
by given if an emergency necessitates an immediate entry), enter the Premises to
(a) inspect the same and to determine whether Tenant is in compliance with its
obligations hereunder, (b) supply any service Landlord is required to provide
hereunder, (c) show the Premises to prospective lenders, insurers, investors,
purchasers or, during the last year of the Term, tenants, (d) post notices of
nonresponsibility, and (e) alter, improve or repair any portion of the Building.
In connection with any such alteration, improvement or repair, Landlord may
erect in the Premises scaffolding and other structures reasonably required for
the work to be performed. In no event shall Tenant's Rent xxxxx as a result of
any such entry or work; provided, however, all such work shall be done in such a
manner as to cause as little interference to Tenant as reasonably possible.
Landlord shall at all times retain a key with which to unlock all of the doors
in the Premises. If an emergency necessitates immediate access to the Premises,
Landlord may use whatever force is necessary to enter the Premises and any such
entry to the Premises shall not constitute a forcible or unlawful entry to the
Premises, an unlawful detainer of the Premises, or an eviction of Tenant from
the Premises, or any portion thereof.
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32. Quiet Enjoyment
So long as Tenant is not in default, Landlord covenants Landlord or
anyone acting through or under Landlord will not disturb Tenant's occupancy of
the Premises except as permitted by the provisions of this Lease.
33. Intentionally Deleted
34. Parking Improvements
43.7 If any governmental authority requires additional parking spaces
to be located on the Premises: (i) Landlord shall perform the work necessary to
create such parking spaces, and (ii) Tenant shall pay Landlord on a monthly
basis, as annual Additional Rent, together with payments of Basic Rent, for each
month during the remaining Term of this Lease (including extensions) an amount
equal to 10% of one-half of the actual costs incurred by Landlord in
constructing such parking spaces.
35. Subordination and Attornment
35.1 This lease shall be subject and subordinate to the lien of any
mortgage, deed of trust, or lease in which Landlord is tenant, now or hereafter
in force against the Premises, and to all advances made or hereafter to be made
upon the security thereof without the necessity of the execution and delivery of
any further instruments on the part of Tenant to effectuate such subordination;
provided, however that so long as there is no Default hereunder, Tenant's right
to possession of the Premises shall not be disturbed by the holder of any such
lien.
35.2 Notwithstanding the foregoing, Tenant shall execute and deliver
upon demand such further instrument or instruments evidencing such subordination
of this Lease to the lien of any such mortgage or mortgages or deeds of trust or
lease in which Landlord is tenant as may be required by Landlord. However, if
any such mortgagee, beneficiary or landlord under lease wherein Landlord is
tenant so elects, this Lease shall be deemed prior in lien to any such lease,
mortgage, or deed of trust upon or including the Premises regardless of date and
Tenant will execute a statement in writing to such effect at Landlord's request.
If Tenant fails to execute any document required from Tenant under this Section
within 10 days after written request therefor, Tenant hereby constitutes and
appoints Landlord as its special attorney-in-fact to execute and deliver any
such document or documents in the name of Tenant. Such power is coupled with an
interest and is irrevocable.
35.3 If any proceedings are brought for foreclosure, or upon the
exercise of the power of sale under any mortgage or deed of trust made by the
Landlord covering the Premises, the Tenant shall, at the election of the
purchaser at such foreclosure or sale, attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as the landlord under this
Lease.
36. Surrender
36.1 No surrender of possession of any part of the Premises shall
release Tenant from any of its obligations hereunder unless accepted by
Landlord.
36.2 The voluntary or other surrender of this Lease by Tenant shall not
work a merger, unless Landlord consents and shall, at the option of Landlord,
operate as an assignment to it of any or all subleases or subtenancies.
36.3 The voluntary or other surrender of any ground or underlying lease
that now exists or may hereafter be executed affecting the Premises, or a mutual
cancellation, thereof, or of Landlord's interest therein, shall not work a
merger and shall, at the option of the successor of Landlord's interest in the
Premises, operate as an assignment of this Lease.
36.4 Upon the expiration or earlier termination of this Lease, Tenant
shall surrender the Premises to Landlord broom clean and free of debris; with
all of Tenant's moveable business and trade fixtures which have not been paid
for with the Tenant Improvements Allowance removed therefrom; with all
alterations, improvements and fixtures required by Landlord to be removed from
the Premises actually removed and all damage as a result of our caused by such
removal repaired; and with all licenses, permits and similar items which will
restrict or affect the use
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of the Premises (the "Use Permits") after the Expiration Date released and fully
terminated. Tenant shall be deemed to be a holdover tenant in accordance with
Article 12 hereof until it delivers to Landlord a release of the Use Permits.
37. Waiver and Modification
No provision of this Lease may be modified, amended or added to except
by an agreement in writing. The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition herein
contained.
38. Waiver of Jury Trial and Counterclaim
THE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE
OR OCCUPANCY OF THE PREMISES, AND OR ANY CLAIM OF INJURY OR DAMAGE.
39. Hazardous Materials
39.1 Tenant shall not cause or permit any Hazardous Materials (as
hereinafter defined) to be brought upon, kept or used in or about the Premises,
in violation of applicable law by Tenant, its agents, employees, contractors or
invitees. If Tenant breaches the obligation stated in the preceding sentence, or
if the presence of Hazardous Materials results in contamination of the Premises,
or any adjacent property or if contamination of the Premises or any adjacent
property by Hazardous Materials otherwise occurs during the Term of this Lease
or any extension or renewal hereof or holding over hereunder, Tenant hereby
indemnities and shall defend and hold Landlord, its officers, directors,
employees, agents and contractors harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises, damages for the loss or
restriction on use of rentable or usable space or of any amenity of the
Premises, damages arising from any adverse impact on marketing of space in the
Premises, and sums paid in settlement of claims, attorneys' fees, consultant
fees and expert fees) which arise during or after the Term of this Lease as a
result of such contamination. This indemnification of landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Materials present in the air, soil or
ground water above on or under the Premises. Without limiting the foregoing, if
the presence of any Hazardous Materials on the Premises or any adjacent
property, caused or permitted by Tenant results in any contamination of the
Premises, or any adjacent property, Tenant shall promptly take all actions at
its sole expense as are necessary to return the Premises or any adjacent
property, to the condition existing prior to the time of such contamination,
provided Landlord's approval of such action shall first be obtained, which
approval shall not unreasonably be withheld so long as such actions would not
potentially have any material adverse long-term or short-term effect on the
Premises.
39.2 Landlord acknowledges it is not the intent of this Article 39 to
prohibit Tenant from operating its business as described in Section 2.1.6 above.
Tenant may operate its business according to the custom of the industry so long
as the use or presence of Hazardous Materials is strictly and properly monitored
according to all applicable governmental requirements. As a material inducement
to Landlord to allow Tenant to use Hazardous Materials in connection with its
business, Tenant agrees to deliver to Landlord prior to the Commencement Date a
list identifying each type of Hazardous Materials to be present on the Premises
and setting forth any and all governmental approvals or permits required in
connection with the presence of such Hazardous Materials on the Premises
("Hazardous Materials List"). Tenant shall deliver to Landlord an updated
Hazardous Materials List at least once a year and shall also deliver an updated
list before any new Hazardous Materials are brought onto the Premises. Tenant
shall deliver to Landlord true and correct copies of the following documents
(the "Documents") relating to the handling, storage, disposal and emission of
Hazardous Materials prior to the Commencement Date, or if unavailable at that
time, concurrent with the receipt from or submission to a governmental agency:
permits; approvals; reports and correspondence; storage and management plans,
notice of violations of any laws; plans relating to the installation of any
storage tanks to be installed in or under Building (provided, said installation
of
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tanks shall only be permitted after Landlord has given Tenant its written
consent to do so, which consent may be withheld in Landlord's sole and absolute
discretion); and all closure plans or any other documents required by any and
all federal, state and local governmental agencies and authorities for any
storage tanks installed in, on or under the Building for the closure of any such
tanks. Tenant is not required, however, to provide Landlord with any portion(s)
of the Documents containing information of a proprietary nature which, in and of
themselves, do not contain a reference to any Hazardous Materials or hazardous
activities. It is not the intent of this Section to provide Landlord with
information which could be detrimental to Tenant's business should such
information become possessed by Tenant's competitors.
39.3 Notwithstanding the provisions of Section 39.1 above, if (i)
Tenant or the proposed assignee or sublessee of Tenant has been required by any
prior landlord, lender or governmental authority to take remedial action in
connection with Hazardous Materials contaminating a property if the
contamination resulted from such party's action or use of the property in
question, or (ii) Tenant or the proposed assignee or sublessee is subject to an
enforcement order issued by any governmental authority in connection with the
use, disposal or storage of a Hazardous Materials, Landlord shall have the right
to terminate this Lease in Landlord's sole and absolute discretion (with respect
to any such matter involving Tenant) and shall not be unreasonable for Landlord
to withhold its consent to any proposed assignment or subletting (with respect
to any such matter involving a proposed assignee or sublessee).
39.4 At any time, and from time to time, prior to the expiration or
earlier termination of the Term, or any extensions thereof, Landlord shall have
the right to conduct appropriate tests of the Premises to demonstrate
contamination has occurred as a result of Tenant's use of the Premises. Tenant
shall be solely responsible for and shall defend, indemnify and hold Landlord,
its agents and contractors harmless from and against any and all claims, costs
and liabilities including actual attorneys' fees, charges and disbursements,
arising out of or in connection with any removal, clean up, restoration and
materials required hereunder to return the Premises and any other property of
whatever nature to their condition existing prior to the time of any such
contamination. Tenant shall pay for the cost of the tests of the Premises.
39.5 If underground or other storage tests storing Hazardous Materials
are located on the Premises or are hereafter placed on the Premises by any
party, Tenant shall monitor the storage tanks, maintain appropriate records,
implement reporting procedures, property close any underground storage tanks,
and take or cause to be taken all other steps necessary or required under the
all applicable federal, state and local laws, rules and regulations as they now
exist or may hereafter be adopted or amended.
39.6 Tenant's obligations under this Article 39 shall survive the
expiration or earlier termination of the Lease. During any period of time
employed by Tenant or Landlord after the termination of this Lease to complete
the removal from the Premises of any such Hazardous Materials and the release
and termination of any licenses or permits restricting the use of the Premises,
Tenant shall continue to pay the full Rent in accordance with this Lease, which
Rent shall be prorated daily on the basis of a 30 day month.
39.7 If Tenant's operations at the Premises now or hereafter constitute
an "Industrial Establishment" (as defined under ISRA, as hereinafter defined) or
are subject to the provisions of any other environmental law, then Tenant agrees
to comply, at its sole cost and expense, with all requirements of ISRA and any
other applicable environmental law to the reasonable satisfaction of Landlord
and to the satisfaction of the governmental entity, department or agency having
jurisdiction over such matters (including, but not limited to, performing site
investigations and performing any removal and remediation required in connection
therewith), in connection with (i) the occurrence of the Expiration Date, (ii)
any termination of this Lease prior to the Expiration Date, (iii) any closure,
transfer or consolidation of Tenant's operations at the Premises, (iv) any
change in the ownership or control of Tenant, (iv) any permitted assignment of
this Lease or permitted sublease of all or party of the Premises or (v) any
other action by Tenant which triggers ISRA or any other environmental law;
provided, however, the foregoing provisions of this Section 39.7 shall not
require Tenant to cleanup and/or remediate any Hazardous Materials other than
those Hazardous Materials for which it is responsible under the provisions of
this Article 39.
In connection with Tenant's performance of its obligations above, if,
with respect to ISRA, Tenant has failed to obtain a negative declaration or to
complete an approved clean-up plan or to otherwise comply with the provisions of
ISRA prior to the Expiration Date, or if, with respect to any other
environmental law, Tenant has failed
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to fully comply with the applicable provisions of such other environmental law
prior to the Expiration Date, Tenant shall be deemed to be a holdover tenant,
shall pay rent at the rate set forth in Section 12.2 and shall continue to
diligently pursue compliance with ISRA and/or such other environmental law;
provided, however, if Tenant's failure is attributable solely to the failure of
the applicable governmental entity, department or agency to timely process the
filings by Tenant, then Tenant shall pay rent at the same rate paid by Tenant
during the last lease year of this Lease instead of at the holdover rate. Upon
Tenant's full compliance with the provisions of ISRA or of such other
environmental law, Tenant shall deliver possession of the Premises to Landlord
in accordance with the provisions of this Lease and the rent then payable by
Tenant shall be adjusted as of said date.
In connection with (i) any sale or other disposition of all or part of
Landlord's interest in the Premises, (ii) any change in the ownership or control
of Landlord, (iii) any condemnation, (iv) any foreclosure or (v) any other
action by Landlord which triggers ISRA or any other environmental law, Landlord
shall comply, at its sole cost and expense, with all requirements of ISRA and
such other applicable environmental law; provided, however, if any site
investigation is required as a result of Tenant's use and occupancy of the
Premises or a spill or discharge of Hazardous Material caused by the act,
negligence of omission of Tenant or Tenant's employees, invitees, contractors or
agents, then Tenant shall pay all costs associated with said site investigation;
in addition, if any removal and remediation is required as a result of a spill
or discharge of a Hazardous Material caused by the act, negligence or omission
of Tenant or Tenant's employees, invitees, contractors or agents, then Tenant
shall pay all costs associated with said removal and remediation.
If, in connection with such compliance, Landlord requires any
affidavits, certifications or other information from Tenant, Tenant agrees to
cooperate with Landlord and to deliver to Landlord without charge all such
documents within five (5) business days after Tenant's receipt of said request.
39.8 Tenant hereby represents and warrants to Landlord that Tenant's
operations at the Premises have the following Standard Industrial Classification
number, as published by the most recent addition of the Standard Industrial
Classification Manual published by the Federal Executive Office of the
President, Office of Management and Budget: 8371.
39.9 Landlord hereby represents that I has no knowledge of any
Hazardous Materials being located on the Premises except s may be set forth on
that certain draft Environmental Report prepared by Dames and Xxxxx dated
September 14, 1998. Landlord and Tenant each acknowledge that in making he
representation in the immediately preceding sentence, Landlord has no obligation
to make any further investigation or inquiry other than reviewing the
Environmental Report referred to above.
39.10 As used herein, the term "Hazardous Materials" means any
hazardous or toxic substance, material or waste which is or becomes regulated by
any agency, department, commission, or other governmental or regulatory
authority of any local, state or federal government having or claiming
jurisdiction over the Premises or the conduct of Tenant's business therein (a
"Governmental Agency"), including, without limitation, any material or substance
which is ; (i) now or at any time hereafter defined as or declared to be
"hazardous," "toxic," or any other word, phrase or term intended to denote
materials and/or substances which are considered to be health risks, which are
not to be released into the environment or the use, storage and disposal of
which are regulated by any Governmental Agency, (ii) petroleum, (iii) asbestos,
(iv) designated as a "hazardous substance": pursuant to Section 311 of the
Federal Water Pollution Control Act (33 U.S.C. Section 1317), (v) defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et. seq. (42 U.S.C. Section 6903), (vi)
defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9601
et. seq.; or (v) defined as "hazardous substance" or "hazardous waste" pursuant
to the Industrial Site Recovery Act of the State of New Jersey ("ISRA"),
N.J.S.A. 131K-6 et. seq. and the regulations promulgated thereunder.
40. Right to Extend Term.
Tenant shall have the right to extend the Term of the Lease upon the
following terms and conditions:
40.1 Tenant shall have 2 consecutive rights (each, an "Extension
Right") to extend the term of this Lease for 5 years each (individually the
"First Extension Term" and the "Second Extension Term: each, an
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"Extension Term") on the same terms and conditions as provided in this Lease
except as otherwise provided in this Article 40.
40.2 Beginning on the first day of the First Extension Term (the "First
Extension Term Commencement Date") and continuing until the day immediately
preceding the one year anniversary of the First Extension Term Commencement
Date, Tenant shall pay Landlord Basic Rent in an amount equal to the greater of
(a) the average of the Basic Rent payable by Tenant as of the date immediately
preceding the First Extension Term Commencement Date and the Market Rate (as
defined below), or (b) the Basic Rent payable by Tenant as of the date
immediately preceding the First Extension Term Commencement Date. In addition to
the Basic Rent, Tenant shall continue to pay Landlord the Improvement Rent
required pursuant to Section 5.2 hereof.
As of the first anniversary of the First Extension Term Commencement
Date and each anniversary thereafter during the First Extension Term (each
anniversary date is hereinafter referred to as the "First Extension Term
Adjustment Date"), Basic Rent shall increase by increases in the Consumer Price
Index (as hereinafter defined), provided, however that Basic Rent shall increase
on each First Extension Term Adjustment Date by as least one hundred two and
three quarters percent (102.75%), notwithstanding the fact that the Consumer
Price Index may not have increased by 2.75%, and in no event shall Basic Rent
increase by more than one hundred five and one half percent(105.5%),
notwithstanding the fact that the Consumer Price Index may have increased by
more the 5.5%.
Basic Rent payable during the First Extension Term as provided herein
shall be determined by multiplying Basic Rent payable immediately before each
First Extension Term Adjustment Date by the percentage difference, if any,
between the Consumer Price Index as of the date which is one year prior to the
applicable First Extension Term Adjustment Date (the "Base Month") and the
Consumer Price Index as of the applicable First Extension Term Adjustment Date.
"Consumer Price Index" shall mean the Consumer Price Index for All Urban
Consumers ("CPI-U") published by the Bureau of Labor Statistics of the United
States Department of Labor, New York-Northern New Jersey-Long Island Area
(1992-1994=100), or any successor index thereto, appropriately adjusted. In the
event the Consumer Price Index is converted to a different standard reference
base or otherwise revised, the determination of adjustments provided for herein
shall be made with the use of such conversion factor, formula or table for
converting the Consumer Price Index as may be published by the Bureau of Labor
Statistics or, if said Bureau shall not publish the same, then with the use of
such conversion factor, formula or table as may be published by Xxxxxxxx-Xxxx,
Inc., or any other nationally-recognized publisher or similar statistical
information. If the Consumer Price Index ceases to be published and there is no
successor thereto, such other index, as Landlord and Tenant shall agree upon in
writing, shall be substituted for the Consumer Price Index.
Beginning on the first day of the Second Extension Term (the "Second
Extension Term Commencement Date") and continuing until the day immediately
preceding the one year anniversary of the Second Extension Term Commencement
Date, Tenant shall pay Landlord Basic Rent in an amount equal to the greater of
(a) the average of the Basic Rent payable by Tenant as of the date immediately
preceding the Second Extension Term Commencement Date and the Market Rate (as
defined below), or (b) the Basic Rent payable by Tenant as of the date
immediately preceding the Second Extension Term Commencement Date. In addition
to the Basic Rent, Tenant shall continue to pay Landlord the Improvement Rent
required pursuant to Section 5.2 hereof.
As of the first anniversary of the Second Extension Term (the "Second
Extension Term Commencement Date") and on each anniversary of the Second
Extension Term Commencement Date (each anniversary date is hereinafter referred
to as the "Second Extension Term Adjustment Date") through the end of the Second
Extension Term, Basic Rent shall increase by any increase in the Consumer Price
Index as provided above, provided, however, that Basic Rent shall increase on
each Second Extension Term Adjustment Date by at least one hundred three percent
(103.00%), notwithstanding the fact that the Consumer Price Index may not have
increased by 3%, and in no event shall Basic Rent increase by more than one
hundred six percent (106.0%), notwithstanding the fact that the Consumer Price
Index may have increased by more than 6%.
40.3 Within thirty (30) days after Landlord's receipt of Tenant's
renewal notice, Landlord shall notify Tenant of its determination of the annual
fair market rental value of the Premises for the applicable Extension Term.
Within twenty (20) days after Tenant's receipt of Landlord's notice, Tenant
shall have the right to (i) accept Landlord's determination of the annual fair
market rental value, or (ii) dispute Landlord's determination of the
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annual fair market rental value. If Tenant disputes Landlord's determination,
then Tenant shall select an independent appraiser to make a determination of the
annual fair market rental value of the Premises, said appraiser shall be a MAI
appraiser having at least ten (10) years experience, who is an employee of a
reputable brokerage firm and who is familiar with the "flex space" rental market
in Princeton, New Jersey. Tenant's appraiser shall submit its determination of
the annual fair market rental value to Landlord within thirty (30) days after
his/her appointment. If Landlord and Tenant's appraiser are unable to agree upon
the annual fair market rental value of the Premises within thirty (30) days
after Landlord's receipt of the appraiser's determination, then either party may
request the American Arbitration Association located in the office closest to
the Premises to appoint an independent appraiser, who is a MAI appraiser having
at least ten (10) years experience and who is familiar with the "flex space"
rental market in Princeton, New Jersey. Said appraiser shall select whichever
determination (Landlord's or Tenant's appraiser's) said appraiser believes is
the closest to the annual fair market rental value of the Premises, and parties
hereto agree to be bound by said selection. Landlord and Tenant shall share
equally the costs and expenses of the American Arbitration Association and the
appraiser selected by said association. If the determination of the annual fair
market rental value of the Premises is not made before the commencement of the
First Extension Term or the Second Extension Term, as the case may be, Tenant
shall pay the Basic Rent determined by Landlord until the determination has been
made. Within thirty (30) days after the determination has been made, Tenant
shall pay to Landlord the amount of any underpayment or Landlord shall credit to
Tenant the amount of any overpayment, whichever the case may be. The fair market
rental value of the Premises as determined by Landlord, Tenant's appraiser or
the appraiser determined by the American Arbitration Association shall take into
account that this Lease is a triple net lease and any extraordinary maintenance
associated with the materials comprising the Building (as opposed to maintenance
of the Premises as a result of Tenant's operations therein). The fair market
rental value of the Premises for the Extension Term as provided herein shall be
the "Market Rent" as such term is used in this Lease.
40.4 Extension Rights are personal to Coelacanth Chemical Corporation
and are not assignable separate and apart from this Lease.
40.5 Extension Rights are conditional upon Tenant giving Landlord
written notice of its election to exercise each Extension Right at least one
year prior to the expiration of the initial term of the Lease or the expiration
of any Extension Term, time being of the essence.
40.6 Notwithstanding anything set forth above to the contrary,
Extension Rights shall not be in effect and Tenant may not exercise any of the
Extension Rights:
40.6.1 during any period of time Tenant is in Default under
any provision of this Lease; or
40.6.2 If Tenant has been in Default under this Lease four (4)
or more times during the twelve (12) month period immediately prior to the date
Tenant attempts to exercise an Extension Right.
40.7 The Period of time within which any Extension Right may be
exercised shall not be extended or enlarged by reason of the Tenant's inability
to exercise the Extension Rights because of the provisions of Section 40.6
above.
40.8 The Extension Rights shall terminate and be of no further force or
effect even after Tenant's due and timely exercise of an Extension Right, if,
after such exercise, but prior to the commencement date of an Extension Term,
(i) Tenant fails to timely cure any Default by Tenant under this Lease; or (ii)
Tenant has defaulted four (4) or more times during the period from the date of
the exercise of an Extension Right to the date of the commencement of the
Extension Term.
41. Miscellaneous
41.1 Terms and Headings. Where applicable in this Lease, the singular
includes the plural and the masculine or neuter includes the masculine, feminine
and neuter. The section headings of this Lease are not a part of this Lease and
shall have no effect upon the construction or interpretation of any part
thereof.
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41. 2 Examination of Lease. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or
option for lease, and it is not effective as a lease or otherwise until
execution by and delivery to both Landlord and Tenant.
41.3 Time. Time is of the essence with respect to the performance of
every provision of this Lease in which time of performance is a factor.
41.4 Covenants and Conditions. Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
41.5 Entire Agreement. The terms of this Lease are intended by the
parties as a final expression of their agreement with respect to the terms as
are included herein, and may not be contradicted by evidence of any prior or
contemporaneous agreement. The Exhibits and Addenda hereto, if any, are
incorporated herein by this reference and this Lease and the Exhibits and
Addenda hereto, if any, all constitute a single integrated agreement.
41.6 Severability. Any provision of this Lease which shall prove to be
invalid, void, or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
41.7 Recording. Neither party shall record this Lease. At the request
of either party, Landlord and Tenant shall execute and record a memorandum of
lease in form and substance reasonably satisfactory to both parties.
41.8 Impartial Construction. The language in all parts of this Lease
shall be in all cases construed as a whole according to its fair meaning and not
strictly for or against either Landlord or Tenant.
41.9 Inurement. Each of the covenants, conditions and agreements herein
contained shall inure to the benefit of and shall apply to and be binding upon
the parties hereto and their respective heirs, legatees, devisees, executors,
administrators, successors, assigns, sublessees, or any person who may come into
possession of said Premises or any part thereof in any manner whatsoever.
Nothing contained in this Section 41.9 shall in any way alter the provisions
against assignment or subletting in this Lease.
41.10 Notices. Any notice, consent, demand, xxxx, statement, or other
communication required or permitted to be given hereunder must be in writing and
may be given by personal delivery or reputable overnight courier and shall be
deemed given when received, addressed to Tenant at the Premises, or to Tenant or
Landlord at the addresses shown in Sections 2.1.7 and 2.1.8 of the Basic Lease
Provisions. Either party may, by notice to the other given pursuant to this
Section, specify additional or different addresses for notice purposes.
41.11 Jurisdiction. This Lease shall be governed by, construed and
enforced in accordance with the laws of the state in which the Premises are
located, applied to contracts made in such state to be wholly performed in such
state.
41.12 Authority. That individual or those individuals signing this
Lease guarantee, warrant and represent said individual or individuals have the
power, authority and legal capacity to sign this Lease on behalf of and to bind
all entities, corporations, partnerships, joint venturers or other organizations
and/or entities on whose behalf said individual or individuals have signed.
41.13 Tenant shall provide to Landlord, upon request from time to time
during the Term of this Lease, but in no event more often than once in any
twelve (12) month period, Tenant's most recent business plan and financial
information, including the most recent audited financial statements of Tenant.
42. Option Rights
42.1 If Landlord determines, in its sole and absolute discretion, to
sell the Premises, then Landlord shall first deliver to Tenant a notice (the
"Availability Notice") which states that the Premises are available for sale.
Tenant shall have an exclusive period of one hundred twenty (120) days from the
date of the Availability Notice to
27
negotiate, in good faith, a purchase and sale agreement for the Premises, on
terms and conditions that are mutually acceptable to Landlord and Tenant, in
their respective sole and absolute discretions. Notwithstanding the foregoing,
neither Landlord nor Tenant shall be liable to the other for the failure of the
parties to reach agreement on the terms and conditions of such purchase and sale
agreement. If Landlord and Tenant do not agree upon the terms and conditions of
such purchase and sale agreement within such one hundred twenty (120) day
period, then the rights of Tenant pursuant to this Section 42.1 shall be null
and void and of no further force and effect, and Landlord shall have the right
to sell the Premises without offering same to Tenant pursuant to this Section
42.1. If Landlord and Tenant enter into a purchase and sale agreement for the
Premises within such one hundred twenty (120) day period, then Landlord shall
sell, and Tenant shall purchase, the Premises on the terms and conditions set
forth in the purchase and sale agreement. Tenant's rights under this Section
42.1 shall be null and void if, as of the date of the Availability Notice, and
thereafter until execution of a purchase and sale agreement by Landlord and
Tenant with respect to the Premises, (a) a Default has occurred under this
Lease, or an event has occurred which, with the passage of time, may ripen into
a Default under this Lease, (b) Coelacanth Chemical Corporation is not in
occupancy of at least 80% of the entire Premises as of such dates, or (c) Voting
Control of Tenant is held by any person or entity other than Oak Investment
Partners, L.P. and/or Oxford Biosciences, L.P. and/or any entity controlling,
controlled by or under common control with such respective entities, as provided
in Section 5.2.3. A default by Tenant to purchase the Property pursuant to the
terms and conditions set forth in the purchase and sale agreement referred to
above shall be deemed to be a default by Tenant of its obligations hereunder and
Tenant shall no longer have any rights to purchase the Property pursuant to this
Section 42.1.
42.2 If Landlord and Tenant do not enter into a purchase and sale
agreement pursuant to Section 42.1 above, and either (a) within two (2) years
after the date of the Availability Notice, Landlord receives a bona-fide written
offer to purchase the Premises for a price less than ninety percent (90%) of the
highest price offered by Tenant, and Landlord desires to accept such offer, or
(b) more than two (2) years after the date of the Availability Notice, Landlord
receives a bona-fide written offer to purchase the Premises for any price, and
Landlord desires to accept such offer, then Landlord shall deliver written
notice to Tenant of the terms and conditions of such offer (the "Offer Notice").
In either event, Tenant shall have fifteen (15) days from its receipt of the
Offer Notice to deliver written notice to Landlord that Tenant agrees to
purchase the Premises on the terms and conditions set forth in the Offer Notice.
Tenant's failure to respond to the Offer Notice within such fifteen (15) day
period shall conclusively be deemed a waiver of its rights set forth in this
Section 42.2. If Tenant exercises its right to purchase the Premises pursuant to
this Section 42.2, then Tenant and Landlord shall enter into a purchase and sale
agreement for the Premises on the terms and conditions set forth in such Offer
Notice. The failure of Tenant to execute a purchase and sale agreement for the
Premises within thirty (30) days after exercise of its right to purchase the
Premises pursuant to this Section 4.2, for any reason other than the willful
default of Landlord, shall be deemed a waiver of its rights set forth in this
Section 42.2. The failure of Tenant to fulfill its obligation to purchase the
property pursuant to a purchase and sale agreement shall be deemed a default by
Tenant of its obligations hereunder, and Tenant shall no longer have any rights
to purchase the Property under this Section 42.2. Notwithstanding the foregoing,
neither Landlord nor Tenant shall be liable to the other for the failure of the
parties to reach agreement on the terms and conditions of such purchase and sale
agreement. In the event the Tenant declines to exercise, or waives, its right to
purchase the Premises pursuant to this Section 42.2, then (i) Tenant's rights
pursuant to this Section 42.2 shall terminate and be of no further force and
effect, and shall not be reinstated if Landlord subsequently accepts another
offer to purchase the Premises, and (ii) Landlord may sell the Premises to any
purchaser, on terms and conditions which are satisfactory to Landlord in its
sole and absolute discretion (which may be more favorable to the purchaser than
the terms of the Offer Notice). Tenant's rights under this Section 42.2 shall be
null and void if, as of the date of the Offer Notice, and thereafter until
execution of a purchase and sale agreement by Landlord and Tenant with respect
to the Premises, (1) a Default has occurred under this Lease, or an event has
occurred which, with the passage of time, may ripen into a Default under this
Lease, (2) Coelacanth Chemical Corporation is not in occupancy of at least 80%
of the entire Premises as of such dates, or (3) Voting Control of Tenant is held
by any person or entity other than Oak Investment Partners, L.P. and/or Oxford
Biosciences, L.P. and/or any entity controlling, controlled by or under common
control with such respective entities, as provided in Section 5.2.3.
43. Arbitration
43. 1 Except as provided in Sections 24.4.1 and 24.4.2, the parties
hereto consent to arbitration of all disputes.
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43.2 The party desiring arbitration shall give notice to that effect to
the other party. Within ten (10) days thereafter, the party not requesting
arbitration shall propose three (3) arbitrators and the other party shall select
one (1) of the three (3).
43.3 The arbitrator shall be a fit and impartial person who shall have
had at least 10 years experience in the State of New Jersey in a calling
connected with the matter of the dispute and shall have no prior, present or
proposed future affiliation or connection with either party.
43.4 The arbitration shall be conducted to the extent consistent with
this Article in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto). The decision
and award shall be rendered by the Arbitrator within 30 days after the
appointment of the Arbitrator. Such decision and award shall be in writing and
shall be final and conclusive on the parties and counterpart copies thereof
shall be delivered to each of the parties. In rendering such decision and award,
the Arbitrator shall not add to, subtract from or otherwise modify the
provisions of this Lease. Judgment may be had on the decision and award of the
Arbitrator so rendered in any court of competent jurisdiction.
43.5 Each party shall pay the fees and expenses of the Arbitrator and
all other expenses of the arbitration (other than the fees and disbursements of
attorneys or witnesses for each party) shall be borne by the parties equally.
43.6 Notwithstanding anything to the contrary elsewhere provided in
this Lease, if the subject matter of a dispute which is provided in this Lease
to be determined by an arbitration is (a) one which would directly affect the
liability of an insurer under any of the policies of insurance referred to
herein and the party which is the insured under such policy so notifies the
other party or (b) one which cannot be the subject of arbitration under a
mortgage, deed of trust or lease in which Landlord is tenant encumbering the
Premises then unless such insurer or the holder of a mortgage, deed of trust or
lease in which Landlord is tenant encumbering the Premises gives its written
consent to the determination of such matter by arbitration, the dispute shall
not be determined by arbitration and the parties shall be left to such other
remedies as they may have.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date first above written.
Landlord:
ARE-279 PRINCETON ROAD, LLC,
a Delaware limited liability company
By: Alexandria Real Estate Equities, L.P.,
a Delaware limited partnership, Managing Member
By: ARE-QRS Corp., a Maryland corporation,
General partner
--------------------------------------
Name:
Title:
Tenant:
COELACANTH CHEMICAL CORPORATION
By:
--------------------------
Name:
Title:
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