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Exhibit 10.41
NEW JERSEY
EXECUTION
LEASE
BRANDYWINE OPERATING PARTNERSHIP, L.P.,
LANDLORD,
AND
i-STAT CORPORATION,
TENANT,
FOR SUITE 100
104 WINDSOR CENTER
EAST WINDSOR, NEW JERSEY
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TABLE OF CONTENTS
Page No.
1. SUMMARY OF DEFINED TERMS 1
2. PREMISES 4
3. TERM 5
4. TENANT IMPROVEMENTS 6
5. FIXED RENT; SECURITY DEPOSIT 6
6. ADDITIONAL RENT 10
7. UTILITIES 19
8. SIGNS; USE OF PREMISES AND COMMON AREAS 19
9. ENVIRONMENTAL MATTERS 21
10. TENANT'S ALTERATIONS 26
11. CONSTRUCTION LIENS 27
12. ASSIGNMENT AND SUBLETTING 28
13. LANDLORD'S RIGHT OF ENTRY 30
14. REPAIRS AND MAINTENANCE 30
15. INSURANCE; SUBROGATION RIGHTS 33
16. INDEMNIFICATION 35
17. QUIET ENJOYMENT 36
18. FIRE DAMAGE 36
19. SUBORDINATION; RIGHTS OF MORTGAGEE 38
20. CONDEMNATION 38
21. ESTOPPEL CERTIFICATE 39
22. DEFAULT 40
23. CURING TENANT DEFAULTS 45
24. CURING LANDLORD DEFAULTS 45
25. LANDLORD'S REPRESENTATIONS AND WARRANTIES 46
26. SURRENDER 46
27. RULES AND REGULATIONS 47
28. GOVERNMENTAL REGULATIONS 47
29. NOTICES 49
30. BROKERS 49
31. CHANGE OF BUILDING/PROJECT NAME 50
32. LANDLORD'S LIABILITY 50
33. AUTHORITY 51
34. NO OFFER 51
35. RENEWAL 51
36. RIGHT OF FIRST NEGOTIATION FOR EXPANSION SPACE 53
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38. MISCELLANEOUS PROVISIONS 55
39. WAIVER OF TRIAL BY JURY 59
40. CONSENT TO JURISDICTION 59
EXHIBITS
EXHIBIT "A" LEGAL DESCRIPTION
EXHIBIT "A-1" SPACE PLAN OF PREMISES
EXHIBIT "A-2" CONFIRMATION OF LEASE TERM
EXHIBIT "B" WORK AGREEMENT
EXHIBIT "C" RULES AND REGULATIONS
EXHIBIT "D" CLEANING SPECIFICATIONS
EXHIBIT 5(c) LETTER OF CREDIT
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LEASE
THIS LEASE (this "Lease") entered into as of the ___ day of July, 1998,
by and between BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership, with an office at 0000 Xxxxx Xxxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx
00000, ("Landlord"), and i-STAT CORPORATION, a Delaware corporation, with its
principal place of business at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx
00000 ("Tenant").
WITNESSETH
In consideration of the mutual covenants herein set forth, and
intending to be legally bound, the parties hereto covenant and agree as follows:
1. SUMMARY OF DEFINED TERMS.
The parties agree that the following defined terms, as used in this
Lease, shall have the meanings and shall be construed as set forth below:
(a) "Building": The building located at 000 Xxxxxxx Xxxxxx
Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx.
(b) "Commencement Date": July 15, 1998.
(c) "Expiration Date": September 30, 2003, unless otherwise
extended pursuant to the terms hereof.
(d) "Project": The Building, the land and all other
improvements located at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx, as
more particularly described in Exhibit "A" attached hereto.
(e) "Premises": Xxxxx Xx. 000, being an approximately 37,474
rentable square foot portion of the first floor of the Building shown on the
space plan attached hereto as Exhibit "A-1" and made a part hereof, such space
being comprised of approximately 33,824 square feet being referred to as the
"Initial Space" and approximately 3,650 square feet being referred to as the
"Remainder Space", including access to and non-exclusive use of that certain
loading dock attached thereto, access to and use of common areas of the Project
and all appurtenances thereto and a minimum of one hundred forty-five (145)
unreserved parking spaces.
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(f) "Term": Commencing on the Commencement Date and expiring
on the Expiration Date, unless such Term is otherwise extended or terminated in
accordance with the terms hereof.
(g) "Fixed Rent":
FIXED RENT PER MONTHLY
RENTABLE SQUARE FOOT INSTALLMENTS ANNUAL
LEASE YEAR PER ANNUM OF FIXED RENT FIXED RENT
---------- --------- ------------- ----------
1-5 $17.50 $54,649.58 $655,795.00
(h) "Security Deposit": $400,000.00, to be held and disbursed
as more fully set forth in Section 5 hereof.
(i) "Rent Commencement Date": October 1, 1998, subject to
Section 5(a) hereof.
(j) "Tenant's Allocated Share": 56.05%.
(k) "Rentable Area": The Premises contain 37,474 rentable
square feet. The Building contains 66,855 rentable square feet.
(l) "Permitted Uses": Tenant shall be permitted to use the
Premises in a manner consistent with the operation of Tenant's corporate
offices, including but not limited to, general office purposes, research and
development, sales and marketing, wholesale sales, light manufacturing and
assembly of medical device products, as such may be changed from time to time
based on written notice to Landlord, warehouse and distribution, and any and all
legally permissible activities directly related or incidental thereto, such
directly related or incidental use not to exceed an aggregate of 5,000 rentable
square feet, such space not necessarily being contiguous. Landlord hereby
warrants and represents that, to the best of its knowledge, information and
belief based solely on the East Windsor Township Zoning Letter attached hereto,
applicable zoning and the Building's certificate of occupancy permit Tenant's
Permitted Uses at the Premises. Landlord shall not unreasonably withhold,
condition or delay its consent to uses at the Premises other than those
specified above, provided such other uses are generally in keeping with the
standards of the Building.
(m) "Broker": Xxxxxxx & Xxxxxxxxx of New Jersey, Inc.
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(n) "Notice Address/Contact"
Tenant: Prior to Tenant's occupancy of the Premises:
i-STAT Corporation
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxx,
Chief Financial Officer
After Tenant's occupancy of the Premises:
At the Premises
Attn: Xxxxx Xxxxx,
Chief Financial Officer
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Landlord: Brandywine Operating Partnership, L.P.
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxx, Vice President
with a copy to:
Brandywine Realty Trust
00 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx,
General Counsel
(o) "Tenant's Standard Industrial Classification Number": 3845
(p) "Additional Rent": All sums of money or charges required
to be paid by Tenant pursuant to the express terms and conditions this Lease
other than Fixed Rent, whether or not such sums or charges are designated as
"Additional Rent".
(q) "Rent": All Fixed Rent and Additional Rent payable by
Tenant to Landlord under this Lease.
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(r) "Expense Stop": Expense Stop shall mean $4.48 per rentable
square foot per year.
(s) "Work Agreement": Exhibit "B" attached hereto and
incorporated herein by this reference.
2. PREMISES.
(a) Landlord does hereby lease, demise and let unto Tenant and
Tenant does hereby hire and lease from Landlord the Premises for the Term, upon
the provisions, conditions and limitations set forth herein. The lease of the
Premises to Tenant includes the right, together with other tenants of the
Building and members of the public, to use the common public areas of the
Building and all appurtenances related thereto.
(b) Landlord hereby warrants and represents, to the best of
its knowledge without independent verification, that the Premises is comprised
of approximately 37,474 rentable square feet of space.
(c) Landlord hereby further warrants and represents that, as
of the Commencement Date: (i) the Premises shall be vacant, broom-clean and
ready for Tenant's exclusive occupancy; (ii) all fit-up work to be performed by
Landlord, if any, shall be substantially completed such that Tenant and its
contractors may reasonably commence construction of the Tenant Improvements
(hereinafter defined); (iii) all mechanical equipment and utility systems
serving the Premises shall be in operating condition; (iv) the Premises shall be
structurally sound and "water-tight"; (v) Tenant's access to the Premises shall
be unimpeded; (vi) Landlord has not received written notice that the Premises
and the Building do not comply with all applicable laws, codes, statutes,
ordinances, guidelines, rules and regulations; and (vii) to the best of
Landlord's knowledge there are no existing mechanical problems with the Building
systems. Landlord's warranties and representations under this Section 2 shall be
true and correct as of the commencement of the Term. Any provisions in this
Lease purporting to require Tenant to accept the Premises "as is" shall be
subject to Landlord's covenants, warranties and representations set forth in
this Lease, and shall be further subject to any pre-existing conditions not
created by Tenant, including, without limitation, any latent defects.
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3. TERM.
(a) The Term of this Lease shall commence on July 15, 1998
with respect to the Initial Space and upon the vacation of the Remainder Space
by Chesapeake Park Inc. (such date being estimated as being on or before July
29, 1998)(collectively, the "Commencement Date"). Notwithstanding anything to
the contrary set forth herein, Tenant's obligation to pay to Landlord any Fixed
Rent or Additional Rent provided for herein shall not commence until the Rent
Commencement Date.
(b) In the event that completion of the Tenant Improvements
(hereinafter defined) is delayed for any reason: (i) this Lease shall remain in
full force and effect and Tenant shall have no claim against Landlord by reason
of any such delay, except to the extent such delay is a Landlord Delay
(hereinafter defined in the Work Agreement); and (ii) commencing on the Rent
Commencement Date, Tenant shall be obligated to pay to Landlord full Fixed Rent
and Additional Rent owing under this Lease.
4. TENANT IMPROVEMENTS. Tenant, at Tenant's sole cost and expense,
subject, however, to application of the Improvement Allowance (hereinafter
defined in the Work Agreement), shall construct in the Premises the Tenant
Improvements (hereinafter described in the Work Agreement) in accordance with
the terms of the Work Agreement. In the event that Landlord and Tenant have not
finally agreed upon the scope and details of the Tenant Improvements as of the
date of execution of this Lease, Tenant's submissions to Landlord of plans and
specifications detailing such work shall be subject to Landlord's written
approval in accordance with the Work Agreement. Upon completion of the Tenant
Improvements, Tenant shall execute the Confirmation of Lease Term attached
hereto as Exhibit "A-2".
5. FIXED RENT; SECURITY DEPOSIT.
(a) Commencing on the Rent Commencement Date, Tenant shall pay
to Landlord without notice, set-off or demand (except as otherwise set forth
herein), the Fixed Rent payable hereunder in equal monthly installments in the
amounts set forth in Section 1(g) hereof, in advance on the first day of each
calendar month during the Term by wire transfer of immediately available funds
to the account at First Union National Bank, account no. 2030000359075; such
transfer to be confirmed to Brandywine Realty
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Services Corporation's accounting department (000-000-0000 - fax) by written
facsimile with ABA federal reference routing number 000000000; provided,
however, that in the event that Landlord fails to deliver the Remainder Space on
or before October 1, 1998, Landlord shall provide Tenant with a rent credit in
the amount of Five Thousand Three Hundred, Twenty Two Dollars and Ninety Two
Cents($5,322.92) to be applied to the monthly installment(s) of Fixed Rent next
coming due under this Lease. Landlord shall notify Tenant's Chief Financial
Officer by fax within one (1) business day at the address set forth herein if
Landlord does not receive such wire transfer after receiving Tenant's fax of the
ABA federal reference number. Notwithstanding the immediately preceding
sentence, Tenant shall pay the first monthly installment of Fixed Rent to
Landlord upon the execution of this Lease by Tenant. Otherwise, Fixed Rent shall
not commence nor be due and owing until the Rent Commencement Date.
Notwithstanding the foregoing, in the event Chesapeake Park,
Inc. fails to vacate and surrender the Remainder Space on or before July 28,
1998, the following terms and conditions shall apply: (i) Landlord shall, at
Landlord's sole cost and expense, no later than Wednesday, July 29, 1998, file
with the appropriate court (and pursue in an expeditious and diligent manner to
completion) an eviction action against Chesapeake Park, Inc. seeking to obtain
full possession of the Remainder Space as soon as possible thereafter, and
Landlord shall deliver the Remainder Space to Tenant as soon as Landlord
recovers possession of such space from Chesapeake Park, Inc.; (ii) in the event
the Tenant Improvements to the Remainder Space are not completed before October
1, 1998 as a result of delays in completion of same resulting from Chesapeake
Park, Inc.'s failure to vacate and surrender the Remainder Space on or before
July 28, 1998, the Rent Commencement Date with regard to the Remainder Space
only shall be extended on a day for day basis for each day including and after
July 28, 1998 Landlord is unable to deliver the Remainder Space provided that
completion of the Tenant Improvements for such Remainder Space is delayed after
September 17, 1998; (iii) in the event Tenant incurs additional third-party,
out-of-pocket costs in completing the Tenant Improvements, Landlord shall
reimburse Tenant for the actual additional costs as evidenced by third-party
invoices incurred by Tenant as a result thereof, including, without limitation,
causing tradesmen to return to the Premises after completing their work on the
Initial Space, fees of architects for field changes or other conforming changes
to the Tenant's Plans and governmental filing and permit fees, if any, which
reimbursement shall, at Tenant's
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option, be either in cash or a rent credit to be applied to the monthly
installment(s) of Fixed Rent next coming due under this Lease upon Tenant's
delivery of invoices to Landlord documenting such additional costs; (iv)
Landlord's liability to Tenant in subparagraph (iii) above shall be limited to
the holdover rent actually collected by Landlord from Chesapeake Park, Inc. for
each month and portion of a month that Chesapeake Park, Inc. remains in
possession of the Remainder Space after July 28, 1998; and (v) Landlord shall
pursue, at Landlord's sole cost and expense, in an expeditious and diligent
manner to completion, any and all actions against Chesapeake Park, Inc.
necessary to recover the holdover rent from Chesapeake Park, Inc.
(b) In the event any Fixed Rent or Additional Rent, charge,
fee or other amount due from Tenant under the express terms of this Lease are
not paid to Landlord within five (5) days that same is past due, Tenant shall
also pay as Additional Rent a service and handling charge equal to ten (10%)
percent of the total payment then due. This provision shall not prevent Landlord
from exercising any other remedy herein provided or otherwise available at law
or in equity in the event of any default by Tenant.
(c) Upon the payment by Landlord of (I) 75% of the Improvement
Allowance (as defined in the Work Agreement), Tenant shall deliver to Landlord,
as escrow agent, a Letter of Credit substantially in the form attached hereto as
Exhibit 5(c) for the benefit of Landlord, in the sum of Three Hundred Fifty
Thousand Dollars ($350,000.00) (the "L/C Deposit"), and (II) the remaining 25%
of the Improvement Allowance in accordance with the Work Letter, Tenant shall
deposit with Landlord cash in the form of a check the amount of Fifty Thousand
Dollars ($50,000.00) (the "Cash Deposit") (the L/C Deposit and the Cash Deposit
are hereinafter collectively referred to as the "Security Deposit"). The
Security Deposit shall be provided to Landlord as security (and not prepaid
rent) for the payment of Fixed Rent and Additional Rent and for the faithful
performance by Tenant of all other covenants, conditions and agreements of this
Lease. Landlord shall have no right in or to the Security Deposit unless and
until Tenant has defaulted under this Lease. In no event shall the Security
Deposit be subject to the rights of creditors and/or Landlord's mortgagee(s),
unless a default by Tenant has otherwise occurred under this Lease.
(d) Subject to Section 5(e) below (and provided Landlord has
not otherwise drawn down the Cash Deposit) the following adjustments shall be
made to the L/C Deposit: (i) on
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the first anniversary of the Rent Commencement Date the amount of the L/C
Deposit shall be reduced to Two Hundred Sixty Two Thousand, Five Hundred Dollars
($262,500.00) and shall remain in full force and effect thereafter; (ii) on the
second anniversary of the Rent Commencement Date, the amount of the L/C Deposit
shall be reduced to One Hundred Seventy-five Thousand Dollars ($175,000.00) and
shall remain in full force and effect thereafter; (iii) on the third anniversary
of the Rent Commencement Date, the amount of the L/C Deposit shall be reduced to
Eighty Seven Thousand Five Hundred Dollars ($87,500.00) and shall remain in full
force and effect; and (iv) on the fourth anniversary of the Rent Commencement
Date, the L/C Deposit shall be terminated. If any sum payable by Tenant to
Landlord shall be overdue and unpaid beyond applicable notice and cure periods,
if any, or if Landlord makes any payments on behalf of Tenant, or if Tenant
fails to perform any of the express terms of this Lease, then Landlord, at its
option and without prejudice to any other remedy which Landlord may have, may
apply all or part of the L/C Deposit to compensate Landlord for the non-payment
of Fixed Rent or Additional Rent.
(e) Notwithstanding anything to the contrary contained herein,
if either: (A) an individual monetary Event of Default (including any stated
notice and cure periods hereunder, if any) being in an amount less than $60,000
occurs hereunder more than one (1) time during the Term hereof, or (B) a
monetary Event of Default costing $60,000 or more ever occurs; even if either of
such defaults has been cured, Tenant shall have no right to reduce the L/C
Deposit and such L/C Deposit shall remain in place for the benefit of Landlord
in the amount then in existence at the time of the occurrence of the Event of
Default, without reduction, for the remainder of the Term.
(f) Landlord shall hold the Cash Deposit in a separate,
FDIC-insured account at a reputable national banking institution, with offices
in the East Windsor, New Jersey area. Landlord shall keep Tenant duly apprized
of the location and account number for the Cash Deposit. If any sum payable by
Tenant to Landlord shall be overdue and unpaid beyond applicable notice and cure
periods, or if Landlord makes any payments on behalf of Tenant, or if Tenant
fails to perform any of the terms of this Lease, then Landlord, at its option
and without prejudice to any other remedy which Landlord may have, may apply all
or part of the Cash Deposit to compensate Landlord for the payment of Fixed Rent
or Additional Rent. Tenant shall restore the Cash Deposit to the original sum
deposited within fifteen (15) days after Landlord's written demand to so
restore. The Cash Deposit,
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plus any interest accrued thereon, shall be repaid to Tenant within thirty (30)
days after the expiration or earlier termination of the Term of this Lease.
(g) In the event of the sale or transfer of Landlord's
interest in the Building, Landlord shall transfer Landlord's rights in the
Security Deposit to the purchaser or assignee, in which event Tenant shall look
only to the new landlord for the return of the Security Deposit; provided said
purchaser or assignee agrees to assume all of Landlord's obligations under this
Lease. In the event of any permitted assignment of all of Tenant's interest in
this Lease, the Security Deposit shall be returned to Tenant if the assignee
posts a replacement security deposit.
(h) Landlord hereby approves the form of letter of credit
attached hereto as Exhibit "5(c)" and incorporated herein by this reference,
which letter of credit shall be for a term of four (4) years and subject to the
terms and conditions of this Section 5.
6. ADDITIONAL RENT.
(a) Tenant shall pay to Landlord, as Additional Rent, the
following charges ("Recognized Expenses"):
(i) Insurance Premiums. The following insurance
premiums paid or payable by Landlord for insurance with respect to the Project
as follows:
(A) Fire and extended coverage insurance
(including demolition and debris removal);
(B) Insurance against Landlord's rental loss
or abatement (but not including business interruption coverage on behalf of
Tenant), from damage or destruction from fire or other casualty;
(C) Landlord's comprehensive liability
insurance (including bodily injury and property damage) and boiler insurance;
and
(D) Such other insurance as Landlord or any
reputable mortgage lending institution holding a mortgage on the Building may
reasonably require; provided the premiums for such insurance are commercially
reasonable and consistent with the
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cost of similar insurance procured by landlords of comparable properties.
If the coverage period of any of such insurance obtained by Landlord commences
before or extends beyond the Term, the total premium therefore shall be
equitably prorated over the Term of this Lease. If any such insurance is
provided by blanket coverage, the part of the premium allocated to the Project
shall be equitably determined by Landlord but shall not exceed the amount of
premium due if insurance was provided by a policy only insuring the Project.
Should Tenant's occupancy or use of the Premises at any time change and thereby
cause an increase in such insurance premiums on the Premises, the Building
and/or the Project, Tenant shall pay to Landlord the entire amount of such
increase. Landlord warrants and represents to Tenant that Tenant's Permitted
Uses under this Lease shall not result in an increase in Landlord's insurance
premiums.
(ii) Operating Expenses. All actual and reasonably
allocated costs (based on Tenant's usage or equitably determined by Landlord)
and the Building related common area expenses incurred and paid by Landlord
during the Term, including, but not limited to:
(A) The operation of the Building and the
Project, including, but not limited to, lighting; cleaning of the Building
exterior and common areas of the Building exterior and interior; trash removal
and recycling; repairs and maintenance of fire suppression and alarm systems;
utilities benefitting the common areas of the Building and the Project; removing
snow, ice and debris and maintaining all landscape areas (including replacing
and replanting flowers, shrubbery and trees); maintaining and repairing all
other exterior improvements on the Project; all repairs and compliance costs
necessitated by laws enacted or which become effective after the Commencement
Date including, without limitation, any additional regulations or requirements
enacted after the date hereof regarding the Americans With Disabilities Act (as
such applies to the Project or the common areas of the Building but not to any
individual tenant's space); storm water runoff required of Landlord under
applicable laws, rules and regulations; and policing and regulating traffic to
and from the Project. Landlord's obligation to provide snow removal services
shall be limited to the parking areas and the sidewalk entrances;
(B) Non-capital expense or charge which
would be considered an expense of maintaining, operating or
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repairing the Project under generally accepted accounting principles; and
(C) The amortized cost of any capital repair
(using the useful life of such capital repair for purposes of figuring the
amortized cost) to the Building and the common areas specifically related
thereto which (i) reduces the Recognized Expenses hereunder, or (ii) is for the
necessary replacement or repair of the Building systems; and
(D) Management fee not to exceed four
percent (4%) of Fixed Rent which is applicable to the overall operation of the
Project. It is expressly understood that legal fees incurred in an action
against an individual tenant shall not be included as an operating expense
pursuant to this Section 6(a)(ii). Landlord shall not collect more than 100% of
the total actual costs and allocated costs actually incurred as permitted
hereunder.
In addition to the foregoing, pursuant to Section 14(f),
Tenant may elect to provide its own janitorial service or to have Landlord
provide such service at Tenant's sole cost and expense, such cost to not be a
part of the Expense Stop hereunder.
Notwithstanding the foregoing, the term "Recognized Expenses"
shall not include any of the following:
(A) the cost of repairs or other work
occasioned by fire, windstorm or other casualty or the condemnation of a portion
of the Project;
(B) leasing commissions, accountants',
consultants', auditors' or attorneys' fees, costs and disbursements and other
expenses incurred in connection with negotiations or disputes with other tenants
or prospective tenants or other occupants, or associated with the enforcement of
any other leases or the defense of Landlord's title to or interest in the real
property or any part thereof;
(C) the costs incurred by Landlord in
connection with construction of the Building and related facilities, the
correction of defects in the construction of the Building;
(D) the costs (including permit, licenses
and inspection fees) incurred in renovating or otherwise
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improving, decorating, painting or redecorating the non-common areas of the
Building, space for other tenants or occupants in the Building, or vacant space
in the Building;
(E) the costs of any items or services sold
or provided to tenants (including Tenant) for which Landlord is reimbursed by
such tenants;
(F) depreciation and amortization;
(G) the costs incurred due to a breach by
Landlord or any other tenant of the terms and conditions of any lease;
(H) overhead and profit increment paid to
subsidiaries or affiliates of Landlord for management or other services on or to
the Building or for supplies or other materials, to the extent that the costs of
such services, supplies or materials exceed the reasonable costs that would have
been paid had the services, supplies or materials been provided by unaffiliated
parties on a reasonable basis;
(I) interest on debt or amortization
payments on any mortgage or deeds of trust or any other borrowings and any
ground rent;
(J) ground rents or rentals payable by
Landlord pursuant to any over-lease;
(K) any compensation paid to clerks,
attendants or other persons in commercial concessions operated by Landlord;
(L) all items and services for which Tenant
reimburses Landlord or which Landlord provides selectively to one or more
tenants or occupants of the Building (other than Tenant) without reimbursement;
(M) the costs incurred by Landlord in
managing or operating any "pay for" parking facilities within the Project;
(N) the Recognized Expenses (including
attorneys' fees) resulting from the negligence or willful misconduct of
Landlord;
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(O) any fines or fees for Landlord's failure
to comply with governmental, quasi-governmental, or regulatory agencies' rules
and regulations;
(P) legal, accounting and other expenses
related to Landlord's financing, re-financing, mortgaging or selling of the
Building or the Project;
(Q) any environmental compliance or
remediation costs of any kind except if caused by Tenant or its agents,
licensees or invitees;
(R) any costs, fees or expenses not
expressly referred to in this Lease, or any costs required to be paid by
Landlord alone hereunder, or otherwise provided to be paid by parties other than
Tenant;
(S) wages, salaries, fees and fringe
benefits paid to administrative or executive personnel or officers or partners
of Landlord who are not directly involved in the management and operations of
the Building other than reasonably allocated accounts receivable clerks;
(T) the cost of any square footage additions
to the Project;
(U) the cost of capital improvements to the
roof, structure, footings, foundation and facade of the Building;
(V) the cost of overtime or other expense to
Landlord in curing its defaults under this or any other lease or performing work
expressly provided in this or any other lease to be borne at Landlord's sole
expense; and
(W) the cost of any utilities furnished to
rentable areas in the Building other than the Premises not comprising common
areas thereof.
(b) Taxes. Taxes shall be defined as all taxes, assessments
and other governmental charges ("Taxes"), including special assessments for
public improvements which are levied or assessed against the Project during the
Term or, if levied or assessed prior to the Term, which properly are allocable
to the Term, and real estate tax appeal expenditures incurred by Landlord to the
extent of any reduction resulting thereby. Notwithstanding the foregoing, Taxes
shall not include: any inheritance, estate, succession, transfer, gift,
franchise, corporation, net income, profit tax, capital levy that is or may
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be imposed upon Landlord or other non-real estate taxes; any Taxes resulting
from a transfer of the Building or the Project; and any increase in Taxes due to
capital improvements other than the Tenant Improvements in the Building;
provided, however, that if at any time during the Term the method of real estate
taxation prevailing as of the Commencement Date shall be altered so that in lieu
thereof or as a substitute for the whole or any part of the Taxes now levied,
assessed or imposed on real estate as there shall be levied, assessed or imposed
(i) a tax on the rents received from such real estate, or (ii) a license fee
measured by the rents receivable by Landlord from the Premises or any portion
thereof, or (iii) a tax or license fee imposed upon the Premises or any portion
thereof, then the same shall be included in the computation of Taxes hereunder.
(c) In the event Landlord receives any refunds or abatements
of Taxes during any periods for which Tenant has made Additional Rent payments
therefor, Landlord shall promptly so notify Tenant and Tenant shall promptly
receive Tenant's Allocable Share of such refunds or abatements in the form of
reimbursement(s) or Additional Rent credit(s), at the sole option of Tenant and
the Expense Stop shall be adjusted to reflect such reduced Taxes. In addition,
Tenant shall have the right, from time to time, after notice to Landlord, by
appropriate proceedings conducted diligently and in good faith, to contest the
amount(s) or validity of any Taxes, and Landlord agrees to reasonably cooperate,
at no cost to Landlord, with Tenant in such proceedings.
(d) Commencing January 1, 1999, and in each calendar year
thereafter during the Term (as same may be extended), Tenant shall pay, in
monthly installments in advance, on account of Tenant's Allocated Share of
Recognized Expenses and Taxes on a per square foot basis, the estimated amount
of the increase of such Recognized Expenses and Taxes on a per square foot basis
for such year in excess of the Expense Stop multiplied by the rentable square
footage of the Premises as determined by Landlord in its reasonable discretion
and as set forth in a notice, such notice to include the basis for such
calculation, to be provided to Tenant prior to such date (e.g., if Tenant's
Allocated Share of the 1999 Recognized Expenses and Taxes is $5.48, then Tenant
shall be responsible for payment of Recognized Expenses and Taxes in the amount
of $37,474 (being [$5.48 - $4.48] x 37,474). Prior to the end of that year and
thereafter for each successive calendar year (each, a "Lease Year"), or any part
thereof, Landlord shall send to Tenant a statement of projected increases in
Recognized Expenses and Taxes in excess of the Expense Stop
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and shall indicate what Tenant's projected share of Recognized Expenses and
Taxes shall be. Said amount shall be paid in equal monthly installments in
advance by Tenant as Additional Rent commencing January 1 of the applicable
Lease Year.
Tenant shall have the right, at its sole cost and
expense, to audit or have its appointed accountant audit Landlord's records
related to Recognized Expenses and Taxes provided that any such audit may not
occur more frequently than once each calendar year nor apply to any year prior
to the then current calendar year (unless such audit uncovers a miscalculation
in Recognized Expenses and/or Taxes in excess of Five Thousand Dollars
($5,000.00). In the event Tenant's audit discloses any discrepancy, Landlord and
Tenant shall use their best efforts to resolve the dispute and make an
appropriate adjustment, failing which, they shall submit any such dispute to
arbitration pursuant to the rules and under the jurisdiction of the American
Arbitration Association in Xxxxxx County, New Jersey. The decision rendered in
such arbitration shall be final, binding and non-appealable. The expenses of
arbitration, other than individual legal and accounting expenses which shall be
the respective parties' responsibility, shall be divided equally between the
parties. In the event, by agreement or as a result of an arbitration decision,
it is determined that the actual Recognized Expenses and/or Taxes exceeded those
claimed by Landlord, Landlord shall refund the difference between the amount of
Recognized Expenses and/or Taxes paid by Tenant and the actual amount of
Recognized Expenses and/or Taxes to Tenant within ten (10) business days of such
determination, together with interest thereon at the statutory rate if such
reconciliation is not completed within four (4) months. In addition, if it is
determined that the aggregate amount of Recognized Expenses and/or Taxes paid by
Tenant exceed those claimed by Landlord by more than six percent (6%), the
actual, reasonable costs of Tenant's audit (including legal and accounting
costs) shall be reimbursed by Landlord.
(e) If during the course of any Lease Year, Landlord shall
have reason to believe that the Recognized Expenses and Taxes shall be different
than that upon which the aforesaid projections were originally based, then
Landlord shall be entitled to adjust the amount by reallocating the remaining
payments for such year, for the months of the Lease Year which remain for the
revised projections, and to advise Tenant of an adjustment in future monthly
amounts to the end result that the Recognized Expenses and Taxes shall be
collected on a reasonably current basis each Lease Year.
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(f) Within four (4) months following the end of each Lease
Year or as soon thereafter as administratively available, Landlord shall send to
Tenant a statement of actual expenses incurred for Recognized Expenses and Taxes
for the prior Lease Year showing the Tenant's Allocated Share due from Tenant.
Landlord shall use its best efforts to provide Tenant with the aforesaid
statements on or before February 28 of each Lease Year. If Landlord is unable to
provide such statements by February 28, Landlord shall not have been deemed to
waive its right to collect any such amounts as Additional Rent. If Landlord is
unable to provide final statements on or before February 28 of each Lease Year,
Landlord shall provide Tenant with its unaudited internal estimates of such
costs by February 28, with the caveat that the final statements may deviate from
the estimate provided. In the event the amount prepaid by Tenant exceeds the
amount that was actually due then Landlord shall issue a credit to Tenant in an
amount equal to the over charge, which credit Tenant may apply to future
payments on account of Recognized Expenses and Taxes until Tenant has been fully
credited with such over charge. In the alternative, Tenant shall have the right
to request that Landlord pay such over charge directly to Tenant, which amount
Landlord shall pay to Tenant within thirty (30) days after Tenant's election. In
addition, if the over charge due to Tenant is more than the aggregate total of
future Additional Rent payments, Landlord shall pay to Tenant the difference
between the credit and such aggregate total. In the event Landlord has
undercharged Tenant then Landlord shall send Tenant an invoice with the
additional amount due, which amount shall be paid in full by Tenant within
fifteen (15) days of Tenant's receipt of such invoice.
(g) The payments of Recognized Expenses and Taxes hereunder
shall for all purposes be treated and considered as Additional Rent, and the
failure of Tenant to pay the same as and when due in advance and without demand
shall have the same effect as failure to pay any installment of Fixed Rent and
shall afford Landlord all the remedies in this Lease therefor as well as at law
or in equity.
(h) If the Term of this Lease shall have expired and the
amount prepaid by Tenant exceeds the amount that was actually due to Landlord,
then Landlord shall refund any remainder to Tenant within sixty (60) days after
the expiration of the Term.
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(i) Tenant shall not be liable for any increases in Related
Expenses or Taxes which are not fairly allocable to the Term.
7. UTILITIES. From and after the Commencement Date, Tenant shall make
arrangements with each utility company and public body to provide, in Tenant's
name, gas and telephone services necessary for Tenant's use of the Premises, and
Tenant shall cause such utilities to be separately metered, to the extent
possible. Tenant shall cause electricity to be separately metered as part of its
Work Agreement. Tenant shall pay directly to the companies furnishing said
utility services the cost of all service connection fees and the cost of all
utilities consumed by Tenant throughout the Term. If any utility service is not
separately metered, Landlord shall pay the bills for the Building, and Tenant
shall pay to Landlord prior to the time when each xxxx becomes due the Tenant's
Allocated Share or such reasonably allocated costs based on Tenant's usage. In
the event that Tenant fails to pay in a timely manner any sum required under
this Section 7, Landlord shall have the right, but not the obligation, upon
prior written notice to Tenant, to pay any such sum. Any sum so paid by Landlord
shall be deemed to be owing by Tenant to Landlord and due and payable as
Additional Rent within fifteen (15) days after written demand therefor. Tenant's
obligations for the payment of the costs incurred for utilities that serve the
Premises prior to the termination of this Lease shall survive termination
hereof.
8. SIGNS; USE OF PREMISES AND COMMON AREAS.
(a) Landlord shall, at Landlord's sole cost and expense,
provide Tenant with standard identification signage on all of the Building's
directories, exterior directional signs and at the entrance to the Premises. No
other signs shall be placed, erected or maintained by Tenant at any place upon
the Premises, the Building or the Project, except as otherwise set forth in
Section 8(e) below.
(b) Tenant may use and occupy the Premises only for the
express purposes stated in Section 1(l) above; and the Premises shall not be
used or occupied, in whole or in part, for any other purpose without the prior
written consent of Landlord; provided that Tenant's right to so use and occupy
the Premises shall remain expressly subject to the provisions of Section 28
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herein. No machinery or equipment shall be permitted that shall cause vibration,
noise or disturbance beyond the Premises.
(c) Tenant shall not commit or suffer any waste upon the
Premises, the Building or the Project or any nuisance, or any other act or thing
which may disturb the quiet enjoyment of any other tenant in the Building or the
Project.
(d) Tenant shall have the right, non-exclusive and in common
with others, to use the exterior paved driveways and walkways of the Building
for vehicular and pedestrian access to the Building. Tenant shall also have the
right, in common with other tenants of the Building and Landlord, to use in the
designated parking areas of the Project one hundred forty-five (145) parking
spaces on a non-reserved basis at the Project for the parking of vehicles of
Tenant, its employees, agents, contractors, suppliers, vendors, customers,
invitees and licensees, incident to Tenant's Permitted Uses of the Premises.
Landlord warrants and represents to its knowledge that Tenant's Permitted Uses
shall not overburden the parking at the Building (including, but not limited to,
Tenant's right to use the loading dock attached to the Premises). Landlord shall
have the right to establish reasonable regulations, applicable to all tenants,
governing the use of or access to any interior or exterior common areas; and
such regulations, when communicated by written notification from Landlord to
Tenant, shall be deemed incorporated by reference hereinafter and part of this
Lease provided such regulations do not result in any material change to Tenant's
use and enjoyment of the Premises and/or such common areas.
(e) Notwithstanding anything to the contrary set forth herein,
Tenant shall have the right, so long as Tenant occupies at least 30,000 square
feet, to install and shall maintain if installed, a free-standing exterior
monument sign near or adjacent to the entrance to the Premises not to exceed 32
square feet(the "Sign"), as determined by Tenant in its sole reasonable
discretion, which identifies Tenant provided that (i) the Sign is permitted
under and conforms to all applicable laws, rules and regulations of the State of
New Jersey and any other governmental authorities having appropriate
jurisdiction; (ii) Tenant obtains all approvals and permits required for the
installation of the Sign; and (iii) all of the terms and conditions of this
Section 8(e) have been satisfied. The design, materials, size, color, exact
location and other attributes of the Sign must be approved by Landlord in its
reasonable discretion. Tenant shall pay for the purchase, installation and
maintenance of the Sign, at its sole cost and expense, and shall install the
Sign reasonably
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promptly after the Tenant has obtained all required consents and approvals.
Tenant acknowledges that Landlord makes no representations or warranties
regarding the ability or likelihood of Tenant's obtaining all necessary
approvals or permits for the Sign and Tenant agrees that the failure to obtain
any such approvals or permits shall not relieve Tenant from any obligations
under this Lease. On or before the end of the Term, Tenant shall, at its
expense, remove the Sign and repair that portion of the Building and/or the
Project affected thereby to the condition such part of the Building was in at
the time the Sign was installed, ordinary wear and tear and casualty excepted.
9 ENVIRONMENTAL MATTERS.
(a) Hazardous Substances.
(i) Tenant shall not, except as provided in
subsection 9(a)(ii) below, bring or otherwise cause to be brought or permit any
of its agents, employees, contractors or invitees to bring in, on or about any
part of the Premises, the Building or the Project, any hazardous substance or
hazardous waste in violation of law, as such terms are or may be defined in (x)
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. 9601 et seq., as the same may from time to time be amended, and the
regulations promulgated pursuant thereto ("CERCLA"); the United States
Department of Transportation Hazardous Materials Table (49 CFR 172.102); by the
Environmental Protection Agency as hazardous substances (40 CFR Part 302); the
Clean Air Act; and the Clean Water Act, and all amendments, modifications or
supplements thereto; and/or (y) the Industrial Site Recovery Act, formerly known
as the Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 et seq., as
the same may from time to time be amended, and the regulations promulgated
pursuant thereto ("ISRA"); and/or (z) any other rule, regulation, ordinance,
statute or requirements of any governmental or administrative agency regarding
the environment.
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(ii) Tenant may bring to and use at the Premises,
hazardous substances, supplies or other items, incidental to its normal business
operations under the Standard Industrial Classification Number referenced in
Section 1(o) above in accordance with all laws. Tenant shall store and handle
such substances in strict accordance with all environmental laws. In addition,
Landlord recognizes that Tenant's business operations include the use and
handling of human blood and human blood related products. Landlord agrees that
Tenant shall be permitted to use and handle such blood and blood products so
long as Tenant complies with all applicable laws relating thereto with the terms
and conditions of this Section 9.
(iii) Landlord hereby warrants and represents, based
solely on the Phase I Report delivered to Tenant, that it has no knowledge, of
any hazardous materials or substances in or about the Premises, the Building or
the Project, which are environmentally hazardous or harmful, or which violate
applicable laws, codes, statutes, ordinances, guidelines, rules and regulations.
Said hazardous substances and materials include, without limitation, asbestos,
radon, PCB's or petroleum products. Landlord shall have sole liability for, and
Tenant shall have no liability for, any and all hazardous materials (and any
related equipment such as, but not limited to, underground storage tanks) not
created or deposited by Tenant or its licensees, employees, agents or invitees.
In addition, Landlord has delivered to Tenant on or before the Commencement Date
the environmental assessments or reports which Landlord has regarding the
Premises, the Building or the Project.
(b) Industrial Site Recovery Act.
(i) Tenant represents and warrants that Tenant's
Standard Industrial Classification Number as designated in the Standard
Classification Manual prepared by the Office of Management and Budget, and as
set forth in Section 1(o) hereof, is correct. Tenant covenants and agrees to
notify Landlord at least thirty (30) days prior to any change of facts which
would result in the change of Tenant's Standard Industrial Classification Number
from its present number.
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(ii) Except for (i) the drawing of human blood from
employees, and (ii) the storage and use of animal blood, each type of blood
stated in (i) and (ii) to be used in connection with testing operations
utilizing single use disposable cartridges, and (iii) the disposal of the
by-products and residual blood from such testing, each of (i), (ii), and (iii)
to be done in accordance with all applicable laws, Tenant shall not engage in
operations at the Premises which involve the generation, manufacture, refining,
transportation, treatment, storage, handling or disposal of "hazardous
substances" or "hazardous waste" as such terms are defined under ISRA. Tenant
further covenants that it will not cause or permit to exist any "discharge" (as
such term is defined under ISRA) on or about the Premises.
(iii)(A) If Tenant's operations at the Premises now
or hereafter constitute an "Industrial Establishment" subject to the
requirements of ISRA, then prior to: (1) closing operations or transferring
ownership or operations of Tenant at the Premises (as defined under ISRA), (2)
the expiration or sooner termination of this Lease, or (3) any assignment of
this Lease or any subletting by Tenant of any portion of the Premises, Tenant
shall, at its expense, comply with ISRA by obtaining, at Tenant's sole cost and
expense, either a Letter of Non-Applicability ("LNA"), De Minimis Quantity
Exemption, Remediation Agreement, Expedited Review approval, or any other
applicable authorization letter issued by NJDEP ("ISRA Clearance") authorizing
Tenant's ISRA-triggering event. Further, if required under ISRA, Tenant shall
proceed to cause NJDEP to issue a No Further Action Letter in connection with
Tenant's ISRA-triggering event. Provided, further, that in no event shall Tenant
be responsible for investigation, remediation or any other actions related to
contamination or conditions existing prior to the execution of this Lease. Any
failure of Tenant to provide any information and submission as required under
N.J.S.A. 13:1K-11.9, shall constitute a default under this Lease. Any assignee
or subtenant of Tenant shall be deemed to have acknowledged, and by entering
into such assignment or sublease, and/or by entering into possession of the
Premises, does hereby, acknowledge, their obligations to comply with ISRA,
jointly and severally with Tenant under the provisions of this Lease.
(B) With respect to any ISRA-triggering
event where Landlord is the "triggering party," Landlord shall comply with ISRA,
at Landlord's sole cost and expense, by obtaining ISRA Clearance authorizing
Landlord's ISRA-triggering event. (By way of example only, and without
limitation, Landlord shall be deemed
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the triggering party in the event of (1) a sale of the Premises (2) a change in
control of Landlord, a stock sale, partnership situation change and/or (3) asset
sale). Further, if required under ISRA, Landlord shall proceed to cause NJDEP to
issue a No Further Action Letter in connection with Landlord's ISRA-triggering
event.
Landlord and Tenant acknowledge that the use of
institutional controls, engineering controls, deed restrictions, deed notices,
classification exception areas, or the like ("Controls"), may be required as
part of a remediation program under ISRA and each party hereby consents to the
reasonable use of such Controls.
Upon written request of the other party, each party
shall cooperate with the other in obtaining ISRA approvals, and in inspections
required by NJDEP, which shall include execution of all affidavits required by
NJDEP and any other requirements requested by NJDEP.
(iv) Any representation or certification made by
Landlord or Tenant in connection with an application for an ISRA "LNA" or other
authorization letter or approval from NJDEP shall also constitute a
representation and warranty in favor of the other party, i.e., the Landlord or
Tenant, as the case may be. Any misrepresentation or breach of warranty
contained in Tenant's applications to NJDEP, if any, shall constitute a default
under this Lease; provided, however, if ISRA approvals requested by NJDEP are
not issued due to factors relating solely to the Building or parties other than
Tenant and its agents, contractors and employees, then Tenant shall be deemed to
have complied with this provision.
(v) With respect to an ISRA-triggering event of the
Tenant, in the event Tenant is obligated, under this Section or otherwise, to
perform and/or cooperate in performing any ISRA obligations and/or obtain and/or
cooperate in obtaining any ISRA approval, by way of an LNA, Remediation
Agreement, "negative declaration", the performance of an approved remedial
action work plan, the obtaining of a no further action letter, and/or otherwise
(collectively the "ISRA Obligations") and, prior to fully performing such ISRA
Obligations, there occurs the scheduled expiration of the Term of this Lease or
Tenant's cessation of operations (collectively, a "Lease Termination"), and in
the event (i) Landlord is obligated to deliver possession to a new tenant and
(ii) under ISRA, Landlord is prevented from being able to deliver lawful
possession because of such failure
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of Tenant to procure ISRA Clearance, then Tenant shall, following such Lease
Termination, pay, at the time and in the manner Fixed Rent payments were due
during the Term, an amount equal to: (i) Fixed Rent in effect immediately prior
to such Lease Termination; and (ii) Additional Rent as provided under the Lease
until such ISRA Clearance has been procured. Provided, however, that Landlord
shall not be entitled to any such payments so long as Tenant procures ISRA
Clearance for all ISRA-triggering events of the Tenant, if any, in accordance
with this Lease, it being specifically understood that certain ISRA Obligations
of Tenant may extend beyond the Lease Termination.
(c) Additional Terms.
(i) In the event of Tenant's failure to comply with
this Section, Landlord may, after written notice to Tenant and Tenant's failure
to cure or diligently proceed to cure (if such matter cannot be cured within
(30) days) within thirty (30) days of its receipt of such notice, at Landlord's
option, perform any and all of Tenant's obligations as aforesaid and all costs
and expenses incurred by Landlord in the exercise of this right shall be deemed
to be Additional Rent payable on demand and with interest at the Default Rate
until payment.
(ii) The parties acknowledge and agree that Tenant
shall not be held responsible for any environmental issues or latent defects at
the Premises unless such issue was caused by (as opposed to being exacerbated
by) an action or omission of Tenant or its agents, employees, invitees or
consultants activities at the Premises.
(iii) This Section 9 shall survive the expiration or
sooner termination of this Lease for the applicable statute of limitations
period.
10. TENANT'S ALTERATIONS. Tenant will not secure any fixture, apparatus
or equipment or make alterations, improvements or physical additions
(collectively, "Alterations") of any kind to any part of the Premises without
first obtaining the written consent of Landlord, such consent not to be
unreasonably withheld, conditioned or delayed. Landlord's consent shall not be
required for the installation of any office equipment or fixtures including
internal partitions which do not require the disturbance of any structural
elements or systems (other than attachment thereto) within the Building and the
performance of minor cosmetic decorating and remodeling in the Premises. Once
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Landlord has approved Tenant's Alterations, Tenant, prior to the commencement of
labor or supply of any materials, must furnish to Landlord: (i) certificates of
insurance evidencing (A) general public liability insurance for personal injury
and property damage in the minimum amount of $1,000,000.00 combined single
limit, (B) statutory xxxxxxx'x compensation insurance, and (C) employer's
liability insurance from each contractor to be employed (all such policies shall
be non-cancelable without thirty (30) days' prior written notice to Landlord and
shall be in amounts and with companies reasonably satisfactory to Landlord);
(ii) construction documents prepared and sealed by a registered New Jersey
architect if such Alteration is in excess of Twenty Five Thousand Dollars
($25,000.00); (iii) all applicable building permits required by law; and (iv) an
executed, effective waiver of mechanics liens from such contractors and all
sub-contractors. Any consent by Landlord permitting Tenant to do any or cause
any work to be done in or about the Premises shall be and hereby is conditioned
upon Tenant's work being performed by workmen and mechanics working in harmony
and not interfering with labor employed by Landlord, Landlord's mechanics or
their contractors or by any other tenant or their contractors. Notwithstanding
the foregoing, once Landlord has approved specific contractors or subcontractor
to perform the Alterations, Landlord shall not be permitted to withdraw its
approval of Tenant's use of said contractors and subcontractors until after such
Alterations have been completed.
All Alterations (whether temporary or permanent in character)
made in or upon the Premises shall be Landlord's property upon installation and
shall remain on the Premises without compensation to Tenant unless Tenant shall,
upon requesting Landlord's approval for such Alterations, have given written
notice to Landlord that Tenant shall remove same at the expiration of this
Lease, in which event Tenant shall promptly remove such Alterations and restore
the Premises to its condition prior to the Alterations being completed,
reasonable wear and tear and casualty excepted. All furniture, movable trade
fixtures and equipment installed by Tenant may be removed by Tenant at the
termination of this Lease, or if not so removed shall, at the option of
Landlord, become the property of Landlord. All such installations, removals and
restoration shall be accomplished in a good and workmanlike manner so as not to
damage the Premises or the Building and in such manner so as not to disturb
other tenants in the Building. If Tenant fails to remove any items required to
be removed pursuant to this Section 10, Landlord may do so and the costs and
expenses thereof shall be deemed Additional Rent hereunder and shall be
reimbursed by
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Tenant to Landlord within fifteen (15) business days of Tenant's receipt of an
invoice therefor from Landlord.
11. CONSTRUCTION LIENS.
(a) Tenant will not voluntarily suffer or permit any
contractor's, subcontractor's or supplier's lien (a "Construction Lien") to be
filed against the Premises or any part thereof by reason of work, labor services
or materials supplied to Tenant or claimed to have been supplied to Tenant. If
any Construction Lien shall at any time be filed against the Premises or any
part thereof, Tenant, within thirty (30) days after notice of the filing
thereof, shall cause it to be discharged of record by payment, deposit, bond,
order of a court or competent jurisdiction or otherwise. If Tenant shall fail to
cause such Construction Lien to be discharged within the period aforesaid, then
in addition to any other right or remedy, Landlord may, but shall not be
obligated to, discharge such Construction Lien either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit or by
bonding proceedings. Any amount so paid by Landlord, plus all of Landlord's
costs and expenses associated therewith (including, without limitation,
reasonable legal fees), shall constitute Additional Rent payable by Tenant under
this Lease and shall be paid by Tenant to Landlord on demand with interest from
the date of advance by Landlord at the Default Rate (hereinafter defined).
(b) Nothing in this Lease, or in any consent to the making of
Alterations shall be deemed or construed in any way as constituting
authorization by Landlord for the making of any Alterations by Tenant within the
meaning of Section 3 of the Construction Lien Law (P.L. 1993, c. 318) or any
amendment thereof, or constituting a request by Landlord, express or implied, to
any contractor, subcontractor or supplier for the performance of any labor or
the furnishing of any materials for the use or benefit or Landlord.
12. ASSIGNMENT AND SUBLETTING.
(a) Except as otherwise set forth herein, Tenant shall not,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed and which consent shall be granted
or denied within (i) ten (10) days for a general office use subtenant or
assignee or (ii) twenty (20) days for a non-office use subtenant or assignee of
Tenant's request for such consent, assign or hypothecate this Lease or any
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interest herein or sublet the Premises or any part thereof for all other uses.
If Landlord fails to respond to Tenant's request within such ten (10) or twenty
(20) day period, as the case may be, Landlord shall be deemed to have approved
such request. Any of the foregoing acts without such consent shall be void.
Subject to Section 12(f) below, this Lease shall not, nor shall any interest
herein, be assignable as to the interest of Tenant by operation of law or by
merger, consolidation or asset sale, without the written consent of Landlord.
(b) If at any time or from time to time during the term of
this Lease Tenant desires to assign all or any part of the Premises (i)
consisting of more than an aggregate of 7,000 square feet, (ii) to more than a
total of two subtenants or assignees at any time, or (iii) for a period in
excess of 2-1/2 years, under any events set forth above as (i), (ii) or (iii),
Tenant shall give notice to Landlord of such intent. Landlord shall have the
option, exercisable by notice given to Tenant within thirty (30) days after
receipt of Tenant's notice, of reacquiring the portion of the Premises proposed
to be assigned and terminating the Lease with respect thereto.
(c) Tenant shall pay to Landlord fifty percent (50%) of any
sums or other economic consideration received by Tenant as a result of any
subletting, assignment or license (less the cost of leasehold improvements made
to the sublet or assigned portion of the Premises by Tenant for subtenant or
assignee, and other reasonable expenses incident to the subletting or
assignment, including standard leasing commissions) whether denominated as
rentals under the sublease or otherwise, which exceed, in the aggregate, the
total sums which Tenant is obligated to pay Landlord under this Lease (prorated
to reflect obligations allocable to that portion of the Premises subject to such
sublease or assignment) without affecting or reducing any other obligation of
Tenant hereunder.
(d) Regardless of Landlord's consent, no subletting or
assignment shall release Tenant of Tenant's obligation or alter the primary
liability of Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rental by Landlord from any
other person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting. In the event of default by any assignee
of Tenant or any subtenant of Tenant in the performance of any of the terms
hereof, Landlord may
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proceed directly against Tenant without the necessity of exhausting remedies
against such assignee or subtenant.
(e) In the event that (i) the Premises or any part thereof are
sublet and Tenant is in default under this Lease, or (ii) this Lease is assigned
by Tenant, then, Landlord may collect Rent from the assignee or subtenant and
apply the net amount collected to the rent herein reserved; but no such
collection shall be deemed a waiver of the provisions of this Section 12 with
respect to assignment and subletting, or the acceptance of such assignee or
subtenant as Tenant hereunder, or a release of Tenant from further performance
of the covenants herein contained.
(f) Notwithstanding anything to the contrary set forth herein,
Tenant shall have the right, upon prior written notice to Landlord, but without
obtaining Landlord's consent, to assign this Lease or sublet all or part of the
Premises to any affiliate which is at least fifty-one percent (51%) owned by
Tenant, parent, subsidiary which is at least fifty-one percent (51%) owned by
Tenant, divisional entity which is at least fifty-one percent (51%) owned by
Tenant, joint venture entity of Tenant which is at least fifty-one percent (51%)
owned by Tenant, or to any entity arising by virtue of merger, consolidation or
other business combination with Tenant which is at least fifty-one percent (51%)
owned by Tenant, or Tenant's parent entity, or to any purchaser of all or
substantially all of Tenant's stock or assets so long as such entity has a net
worth of at least $50,000,000, or to any entity under the ownership or control
of Tenant's parent entity or holding entity (individually, a "Related Entity"
and collectively, "Related Entities"), so long as Tenant continues to remain
liable under the terms of this Lease. The provisions of Section 12(b) and
Section 12(e), above, shall not apply to the assignment of this Lease or the
subletting of all or a portion of the Premises to a Related Entity.
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13. LANDLORD'S RIGHT OF ENTRY. Landlord, its agents and employees may
enter the Premises at all reasonable times during regular business hours upon
twenty-four (24) hours prior notice to Tenant (except in the case of an
emergency, in which case no prior notice is necessary) for the purpose of
conducting inspections, repairs, alterations to adjoining space, appraisals, or
other reasonable purposes, including the enforcement of Landlord's rights under
this Lease, provided Landlord shall use reasonable efforts not to unreasonably
interfere with Tenant's business operations during any such access. Landlord
also shall have the right to enter the Premises at all reasonable times during
regular business hours after giving prior notice to Tenant and Landlord shall
provide written notice to Tenant during the last nine (9) months of the Term, to
exhibit the Premises to any prospective purchaser, tenant and/or mortgagee.
14. REPAIRS AND MAINTENANCE.
(a) Except as specifically otherwise provided in Sections
14(b) and (c) below, Tenant, at its sole cost and expense and throughout the
Term of this Lease, shall keep and maintain the Premises and any installed
signage per Section 8 in good order and condition, free of accumulation of dirt
and rubbish, and shall promptly make all non-structural repairs necessary to
keep and maintain such good order and condition, reasonable wear and tear and
casualty excepted. Tenant shall have the option of replacing lights, ballasts
and tubes, itself or it shall have the ability to advise Landlord of Tenant's
desire to have Landlord make such repairs. If requested by Tenant, Landlord
shall replace such lights, ballasts and tubes within a reasonable time of notice
to Landlord and shall charge Tenant for such services at Landlord's standard
rate (such rate to be competitive with the market rate for such services).
Tenant shall not use or permit the use of any portion of the Premises for
outdoor storage. When used in this Section 14, the term "repairs" shall include
replacements and renewals when necessary. All repairs made by Tenant shall
utilize materials and equipment which are at least equal in quality and
usefulness to those originally used in constructing the Building and the
Premises. Landlord hereby warrants and represents that the HVAC system serving
the Premises shall be in operational order and condition on the Commencement
Date, and shall, throughout the Term, provide levels of ventilation, humidity,
heating and cooling which are appropriate for Tenant's Permitted Use. Except for
damage caused by Tenant's negligence or willful misconduct,
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Landlord shall be responsible for maintenance, repairs, replacements and
additions to said HVAC system during the Term, said maintenance to include
periodic testing and cleaning of the duct work as is reasonably necessary to
avoid unsafe or unhealthy interior air conditions. Any overtime charges for
Tenant's HVAC usage shall be proportionately reduced to reflect any simultaneous
usage by other tenants. In addition, the rates for such overtime usage shall not
exceed the normal and customary rates charged at comparable first-class office
buildings in the Xxxxxx County, New Jersey area. Tenant's Allocated Share of
Landlord's cost for HVAC service, maintenance and repairs shall be included as a
portion of Recognized Expenses.
(b) Landlord, throughout the Term of this Lease, at Landlord's
sole cost and expense so long as such damage is not caused by Tenant or its
agents, licensees, employees or invitees' acts or omissions, shall make all
necessary repairs to the structural elements of the Building including, without
limitation, footings, foundations and the structural steel columns and girders
forming a part of the Premises and the Building.
(c) Landlord, throughout the Term of this Lease, shall make
all necessary repairs to the Building and the common areas, including the roof,
walls, exterior portions of the Premises and the Building, utility lines,
equipment and other utility facilities in the Building, which serve more than
one tenant of the Building, and to any driveways, sidewalks, curbs, loading
docks, parking and landscaped areas, and other exterior improvements for the
Building. Tenant shall pay Tenant's Allocated Share of the cost of all repairs
to be performed by Landlord pursuant to this Section 14(c) as Additional Rent as
provided, and as limited with respect to capital items, in accordance with
Section 6 hereof.
(d) Landlord shall keep and maintain all common areas
appurtenant to the Building and any sidewalks, parking areas, curbs and access
ways adjoining the Project in a clean and orderly condition, free of
accumulation of dirt, rubbish, snow and ice, and shall keep and maintain all
landscaped areas in a neat and orderly condition. Tenant shall pay Tenant's
Allocated Share of the cost of all work to be performed by Landlord pursuant to
this Section 14(d) as Additional Rent as provided in Section 6 hereof.
(e) Notwithstanding anything herein to the contrary, repairs
to the Premises, the Building or the Project and its appurtenant common areas
caused as a result of the negligence or
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willful misconduct of Tenant or any employee, agent, invitees or contractor of
Tenant shall be made at the sole cost and expense of Tenant, except to the
extent covered by Landlord's insurance.
(f) Tenant shall have the right to elect to have Landlord
provide Tenant with janitorial services for the Premises, Monday through Friday
of each week in accordance with the guidelines set forth in Exhibit "D" attached
hereto and Tenant shall pay Landlord the actual cost thereof as Additional Rent
as provided in Section 6 hereof. In no event shall Tenant be responsible for any
portion of the cost of such janitorial services (i) if Tenant does not utilize
such janitorial services, or (ii) for any tenant or other occupant of the
building.
15. INSURANCE; SUBROGATION RIGHTS.
(a) Tenant shall obtain and keep in force at all times during
the Term hereof, at its own expense, com general liability insurance including
contractual liability and personal injury liability and all similar coverages,
with combined single limits of $3,000,000.00 on account of bodily injury to or
death of one or more persons as the result of any one accident or disaster and
on account of damage to property or in such other amounts as Landlord may from
time to time require pursuant to policies set forth in the next sentence. The
policy limits set forth herein shall be subject to periodic review, and Landlord
reserves the right to require that Tenant increase the liability coverage limits
if, in the reasonable opinion of Landlord, the coverage becomes inadequate and
is less than commonly maintained by tenants of similar buildings in the area
making similar uses.
(b) Tenant shall, at its sole cost and expense, maintain in
full force and effect on all Tenant's trade fixtures, equipment and personal
property on or in the Premises, a policy of all risk property insurance covering
the full replacement value of such property. Tenant shall also provide and keep
in force, business interruption insurance in an amount equivalent to twelve (12)
months' Fixed Rent and Additional Rent which shall not contain a deductible
greater than seventy-two (72) hours.
(c) All insurance required hereunder shall not be subject to
cancellation without at least thirty (30) days' prior notice (except in the
event of non-payment of premiums) to all insureds, and shall name Landlord,
Brandywine Realty Trust, Brandywine Realty Services Corporation and Tenant as
additional insureds, as their interests may appear, and, if requested by
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Landlord, shall also name as an additional insured any mortgagee or holder of
any mortgage which may be or become a lien upon any part of the Premises. Prior
to the Commencement Date, Tenant shall provide Landlord with certificates of the
policy or policies of insurance above referred to, with evidence that the
coverages required have been obtained and that premiums have been paid in full
for the policy periods. Tenant shall also furnish to Landlord throughout the
Term hereof replacement certificates or copies of renewal polices, together with
evidence of like paid premiums at least ten (10) days prior to the expiration
dates of the then current policy or policies. All the insurance required under
this Lease shall be issued by insurance companies authorized to do business in
the State of New Jersey with a financial rating of at least an A as rated in the
most recent edition of Best's Insurance Reports and in business for the past
five years. The limit of any such insurance shall not limit the liability of
Tenant hereunder. If Tenant fails to procure and maintain such insurance,
Landlord may, but shall not be required to, procure and maintain the same, at
Tenant's expense to be reimbursed by Tenant as Additional Rent within ten (10)
days of written demand; provided, however, that Landlord shall be required to
give Tenant ten (10) business days notice of its intent to procure insurance on
Tenant's behalf and Tenant shall fail to procure same (or provide proof that
such insurance already exists) within such ten (10) business day period. Any
deductible under such insurance policy or self-insured retention under such
insurance policy in excess of Five Thousand Dollars ($5,000) must be approved by
Landlord in writing prior to issuance of such policy. Tenant shall not
self-insure without Landlord's prior written consent. The policy limits set
forth herein shall be subject to periodic review, and Landlord reserves the
right to require that Tenant increase the liability coverage limits if, in the
reasonable opinion of Landlord, the coverage becomes inadequate and is less than
commonly maintained by tenants of similar buildings in the area making similar
uses.
(d) Landlord shall obtain and maintain the following insurance
during the Term of this Lease: (i) replacement cost insurance including all risk
perils on the Building and on the Project, and (ii) general liability insurance
(including bodily injury and property damage) covering Landlord's operations at
the Project in amounts held by reasonably prudent landlords of comparable
first-class properties in the Xxxxxx County, New Jersey area.
(e) Each party hereto, and anyone claiming through or under
them by way of subrogation, waives and releases any cause
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of action it might have against the other party and Brandywine Realty Trust and
their respective employees, officers, partners, trustees and agents, on account
of any loss or damage that is insured against under any insurance policy
required to be obtained hereunder that covers the Project, the Building or the
Premises, Landlord's or Tenant's fixtures, personal property, the Tenant
Improvements or business and which names Landlord and Brandywine Realty Trust or
Tenant, as the case may be, as a party insured. Each party hereto agrees that it
will cause its insurance carrier to endorse all applicable policies waiving the
carrier's right of recovery under subrogation or otherwise against the other
party. During any period while such waiver of right of recovery is in effect,
each party shall look solely to the proceeds of such policies for compensation
for loss, to the extent such proceeds are paid under such policies.
16. INDEMNIFICATION. Tenant shall defend, indemnify and hold harmless
Landlord and Brandywine Realty Trust and their respective employees and agents
from and against any and all actions, damages, liability and expense (including
all expenses and liabilities incurred in defense of any such claim or any action
or proceeding brought thereon) arising from (i) Tenant's use of the Premises in
violation of the terms of the Lease, (ii) the conduct of Tenant's business in
violation of the terms of the Lease, (iii) any activity, work or things done,
permitted or suffered by Tenant in or about the Premises or elsewhere contrary
to the requirements of this Lease, (iv) any breach or default in the performance
of any obligation on Tenant's part to be performed under the terms of this
Lease, and (v) any negligence or willful act of Tenant or any of Tenant's
agents, contractors or employees. In the event Landlord, Brandywine Realty
Services Corporation or Brandywine Realty Trust shall be made a party to any
litigation commenced against Tenant, its agents, subtenants, licensees,
concessionaires, contractors, customers or employees, then Tenant shall defend
(with counsel reasonably acceptable to Landlord), indemnify and hold harmless
Landlord, Brandywine Realty Services Corporation and Brandywine Realty Trust and
Tenant shall pay all costs, expenses and reasonable attorney's fees incurred or
paid by Landlord and Brandywine Realty Trust in connection with such litigation.
Tenant shall further indemnify and hold harmless Landlord, Brandywine Realty
Services Corporation and Brandywine Realty Trust from and against any and all
third-party claims, actions, damages, liability and expense which may be imposed
upon or incurred by or asserted against Landlord by reason of (A) loss of life,
personal injury and/or damage to property occurring in or about the Premises,
occasioned
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by reason of any act or omission of Tenant, its agents, subtenants, licensees,
concessionaires, contractors, customers, employees and/or third parties and (B)
any failure on the part of Tenant to keep, observe and perform any of the terms,
covenants, agreements, conditions, limitations or Rules and Regulations
contained in this Lease on Tenant's part to be kept, observed and performed.
Tenant's indemnity of Landlord set forth herein specifically excludes any
losses, liabilities, claims, damages or expenses arising from the negligence or
misconduct of Landlord or Landlord's agents, employees, contractors, or
invitees, or arising from Landlord's breach of its obligations or
representations under this Lease. In addition, in no event shall Tenant ever be
liable for any consequential or punitive damages. Landlord hereby agrees to
indemnify, defend and hold Tenant harmless from and against any and all losses,
liabilities, claims, damages or expenses (including, without limitation,
reasonable attorneys' fees and costs), arising from or in connection with the
negligence or misconduct of Landlord or Landlord's agents, employees or
contractors, or arising from or in connection with Landlord's breach of its
obligations or representations in this Lease. Any provisions in this Lease which
purport to limit, waive or release Landlord or Tenant for its negligence or
misconduct (or the negligence or misconduct of Landlord's or Tenant's agents,
employees or contractors) shall be of no effect.
17. QUIET ENJOYMENT. Provided Tenant has performed all of the terms and
conditions of this Lease, including the payment of Fixed Rent and Additional
Rent, to be performed by Tenant, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term, without hindrance from Landlord, or anyone
claiming by through or under Landlord.
18. FIRE DAMAGE.
(a) Except as provided below, in case of damage to the
Premises by fire or other casualty, Landlord shall repair the damage within one
hundred eighty (180) days of such damage. Such repair work shall be commenced
promptly following notice of the damage and completed with due diligence, taking
into account the time required for Landlord to effect a settlement with and
procure insurance proceeds from the insurer, and excluding delays due to Force
Majeure (hereinafter defined). In the event of any casualty damage or loss
rendering all or part of the Premises, or Tenant's access thereto, untenantable,
all Fixed Rent and Additional Rent shall be proportionately abated to reflect
the
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rentable area of the Premises (and access thereto) remaining tenantable after
such casualty. Said abatement shall begin as of the date of the casualty and end
on the date Landlord tenders possession of the Premises restored and rendered
tenantable for Tenant's business operations.
(b) Notwithstanding the foregoing, if (i) the damage is of a
nature or extent that, in Landlord's reasonable judgment (to be communicated to
Tenant within sixty (60) days from the date of the casualty), the repair and
restoration work would require more than one hundred eighty (180) consecutive
days to complete after the casualty and, assuming normal work crews not engaged
in overtime by sending written notice of such termination to the other party
within ten (10) days of Tenant's receipt of the notice from Landlord described
above, or (ii) if more than fifty percent (50%) of the total area of the
Building is extensively damaged, Landlord and Tenant shall each have the right
to terminate this Lease and all the unaccrued obligations of the parties hereto
by sending written notice of such termination to the other party within thirty
(30) days of such casualty. Such notice is to specify a termination date no less
than ten (10) days after its transmission. In addition to the foregoing, in the
event the Premises are untenantable because of the nature or extent of the
damage, all Fixed Rent and Additional Rent shall be abated as of the date of the
casualty.
(c) Notwithstanding the foregoing, if (i) all or substantially
all (i.e., fifty percent (50%) or more) of the rentable area of the Premises are
rendered untenantable by such casualty; or (ii) the Premises cannot reasonably
be restored within one hundred eighty (180) days of the casualty loss; or (c) a
casualty loss occurs during the last year of the Term and affects fifty percent
(50%) or more of the rentable area of the Premises, then, in any of said events,
Tenant shall have the right to cancel this Lease effective on the date of such
casualty, without liability, upon written notice to Landlord, in which case upon
payment of all outstanding amounts owed Landlord through the effective date of
termination and performance of all obligations hereunder through such effective
date, Landlord shall immediately return any prepaid Fixed Rent, the L/C and the
Cash Deposit.
19. SUBORDINATION; RIGHTS OF MORTGAGEE.
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(a) Subject to Section 19(c) hereof, this Lease shall be
subject and subordinate at all times to the lien of any mortgages now or
hereafter placed upon the Premises, the Building and/or the Project and land of
which they are a part without the necessity of any further instrument or act on
the part of Tenant to effectuate such subordination. Tenant further agrees to
execute and deliver upon demand such further instrument or instruments
evidencing such subordination of this Lease to the lien of any such mortgage and
such further instrument or instruments of attornment as shall be desired by any
mortgagee or proposed mortgagee or by any other person.
(b) In the event Landlord shall be or is alleged to be in
default of any of its obligations owing to Tenant under this Lease, Tenant
agrees to give to the holder of any mortgage (collectively the "Mortgagee") now
or hereafter placed upon the Premises, the Building and/or the Project, notice
by registered mail of any such default which Tenant shall have served upon
Landlord, provided that prior thereto Tenant has been notified in writing (by
way of Notice of Assignment of Rents and/or Leases or otherwise in writing to
Tenant) of the name and addresses of any such Mortgagee.
(c) Tenant's subordination and attornment to any future
mortgages, ground leases or encumbrances shall be conditioned upon its receipt
of reasonable and binding nondisturbance agreements protecting Tenant's tenancy
as long as Tenant is not in default of its obligations under this Lease.
Landlord hereby represents and warrants that there are no mortgages or ground
leases affecting the Project.
20. CONDEMNATION.
(a) If more than twenty (20%) percent of the floor area of the
Premises is taken or condemned for a public or quasi-public use (a sale in lieu
of condemnation to be deemed a taking or condemnation for purposes of this
Lease), this Lease shall, at either party's option, terminate as of the date
title to the condemned real estate vests in the condemnor, and Fixed Rent and
Additional Rent herein reserved shall be apportioned and paid in full by Tenant
to Landlord to that date and all rent prepaid for period beyond that date shall
forthwith be repaid by Landlord to Tenant and neither party shall thereafter
have any liability hereunder.
(b) If less than twenty (20%) percent of the floor area of the
Premises is taken or if neither Landlord nor Tenant
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have elected to terminate this Lease pursuant to Section 20(a) above, Landlord
shall promptly do such work as may be reasonably necessary to restore the
portion of the Premises not taken to tenantable condition.
(c) If this Lease is not terminated after any such taking or
condemnation, Fixed Rent and Additional Rent shall be equitably reduced in
proportion to the area of the Premises which has been taken for the balance of
the Term.
(d) If a part or all of the Premises shall be taken or
condemned, all compensation awarded upon such condemnation or taking shall go to
Landlord. Notwithstanding the foregoing, nothing in this Lease shall preclude
Tenant from claiming and collecting from the condemning authority an award for
Tenant's trade fixtures, loss of business, and moving and relocation costs.
21. ESTOPPEL CERTIFICATE. Each party agrees at any time and from time
to time, within ten (10) days after the other party's written request, to
execute, acknowledge and deliver to the other party a written instrument in
recordable form certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that it is in full force and effect
as modified and stating the modifications), and the dates to which Fixed Rent,
Additional Rent, and other charges have been paid in advance, if any, and
stating whether or not to the best knowledge of the party signing such
certificate, the requesting party is in default in the performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such default of which the signer may have knowledge. It is intended that
any such certification and statement delivered pursuant to this Section 21 may
be relied upon by any prospective purchaser of the Project or the Building or
any mortgagee thereof or any assignee of Landlord's interest in this Lease or of
any mortgage upon the fee of the Premises or any part thereof.
22. DEFAULT. In the event:
(i) Tenant fails to pay any installment of Fixed Rent or any
amount of Additional Rent when due, and such failure shall continue for a period
of ten (10) calendar days after Tenant's receipt of written notice to Tenant of
such failure;
(ii) any attachment or execution against a substantial part
of Tenant's assets or of Tenant's interests in
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this Lease remains unstayed or undismissed or is not bonded over for a period of
more than thirty (30) days from the recording of such attachment;
(iii) a substantial part of Tenant's assets are taken by
final unappealable judgment in any action against Tenant,
(iv) Tenant fails to observe or perform any of the Tenant's
express obligations herein contained within thirty (30) days after Tenant's
receipt of written notice specifying the default, or the expiration of such
additional time period as is reasonably necessary for Tenant to cure such
default, provided Tenant immediately commences and thereafter proceeds with all
due diligence and in good faith to cure such default;
(v) Tenant makes any assignment for the benefit of creditors
except in the case of purchase money financing;
(vi) a petition is filed or any proceeding is commenced
against Tenant under any federal or state bankruptcy or insolvency law and such
petition or proceeding is not dismissed within ninety (90) days;
then, in any such event, an Event of Default shall be deemed to exist and Tenant
shall be in default hereunder.
If an Event of Default shall occur, the following provisions
shall apply and Landlord shall have, in addition to all other rights and
remedies available at law or in equity, the rights and remedies set forth
herein, which rights and remedies may be exercised upon or at any time following
the occurrence of an Event of Default unless, prior to such exercise, the Event
of Default has been cured by Tenant in all material respects:
(a) Acceleration of Rent. By notice to Tenant, Landlord shall
have the right to accelerate all Fixed Rent and all expense installments due
hereunder and otherwise payable in installments over the remainder of the Term,
and, at Landlord's option, any other Additional Rent to the extent that such
Additional Rent can be determined and calculated to a fixed sum; and the amount
of accelerated rent to the termination date, without further notice or demand
for payment, shall be due and payable by Tenant within fifteen (15) days after
Landlord has so notified Tenant, such amount collected from Tenant shall be
discounted to present value using an interest rate of ten percent (10%) per
annum. Additional Rent which has not been included, in
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whole or in part, in accelerated rent, shall be due and payable by Tenant during
the remainder of the Term, in the amounts and at the times otherwise provided
for in this Lease.
(b) Termination of Lease. By notice to Tenant, Landlord shall
have the right to terminate this Lease as of a date specified in the notice of
termination and in such case, Tenant's rights, including any based on any
options to renew, to the possession and use of the Premises shall end absolutely
as of the termination date; and this Lease shall also terminate in all respects
except for the provisions hereof regarding Landlord's damages and Tenant's
liabilities arising prior to, out of and following the Event of Default and the
ensuing termination. Following such termination and the notice of same provided
above (as well as upon any other termination of this Lease by expiration of the
Term or otherwise) Landlord immediately shall have the right to recover
possession of the Premises; and to that end, Landlord may enter the Premises and
take possession, without the necessity of giving Tenant any notice to quit or
any other further notice, with or without legal process or proceedings, and in
so doing Landlord may remove Tenant's property (including any improvements or
additions to the Premises which Tenant made, unless made with Landlord's consent
which expressly permitted Tenant to not remove the same upon expiration of the
Term), as well as the property of others as may be in the Premises, and make
disposition thereof in such manner as Landlord may deem to be commercially
reasonable and necessary under the circumstances.
(c) Tenant's Continuing Obligations/Landlord's Reletting
Rights.
(i) Unless and until Landlord shall have terminated
this Lease under Section 22(a) above, Tenant shall remain fully liable and
responsible to perform all of the covenants and to observe all the conditions of
this Lease throughout the remainder of the Term to the early termination date;
and, in addition, Tenant shall pay to Landlord, upon demand and as Additional
Rent, the total sum of all costs, losses and expenses, including reasonable
attorneys' fees, as Landlord incurs, directly or indirectly, because of any
Event of Default having occurred.
(ii) If Landlord either terminates Tenant's right to
possession without terminating this Lease or terminates this Lease and Tenant's
leasehold estate as above provided, then, subject to the provisions below,
Landlord shall have the unrestricted right to relet the Premises or any part(s)
thereof
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to such tenant(s) on such terms and for such period(s) as Landlord may deem
appropriate. Landlord agrees to use reasonable efforts to mitigate its damages
hereunder in the event of an Event of Default by Tenant, provided that Landlord
shall not be liable to Tenant for its inability to mitigate damages if it shall
endeavor to relet the Premises in a like manner as it offers other comparable
vacant space or property available for leasing to others in the Project of which
the Building is a part. If Landlord relets the Premises after such a default,
the costs recovered from Tenant shall be reallocated to take into consideration
any additional rent which Landlord receives from the new tenant which is in
excess to that which was owed by Tenant.
(d) Landlord's Damages.
(i) The damages which Landlord shall be entitled to
recover from Tenant shall not exceed the sum of:
(A) all Fixed Rent and Additional Rent
accrued and unpaid as of the termination date; and
(B) (i)all costs and expenses incurred by
Landlord in recovering possession of the Premises, including removal and storage
of Tenant's property, and (ii) the costs and expenses of restoring the Premises
to the condition in which the same were to have been surrendered by Tenant as of
the expiration of the Term; and
(C) the then discounted present value (as
stated in Section 22(a) above) of all Fixed Rent and Additional Rent (to the
extent that the amount(s) of Additional Rent has been then determined) otherwise
payable by Tenant over the remainder of the Term as reduced to present value.
Less deducting from the total determined under subparagraphs (A), (B) and (C)
all Rent and all other Additional Rent to the extent determinable as aforesaid,
(to the extent that like charges would have been payable by Tenant) which
Landlord receives from other tenant(s) by reason of the leasing of the Premises
or part during or attributable to any period falling within the otherwise
remainder of the Term.
The damage sums payable by Tenant under the preceding provisions of this Section
22(c) shall be payable on demand from time to time as the amounts are
determined; and if from Landlord's subsequent receipt of rent as aforesaid from
reletting, there be
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any excess payment(s) by Tenant by reason of the crediting of such rent
thereafter received, the excess payment(s) shall be refunded by Landlord to
Tenant, without interest.
(e) Interest on Damage Amounts. Any sums payable by Tenant
hereunder, which are not paid after the same shall be due, shall bear interest
from that day until paid at the rate of four (4%) percent over the then Prime
Rate as published daily under the heading "Money Rates" in The Wall Street
Journal, unless such rate be usurious as applied to Tenant, in which case the
highest permitted legal rate shall apply (the "Default Rate").
(f) Landlord's Statutory Rights. Landlord shall have all
rights and remedies now or hereafter existing at law or in equity with respect
to the enforcement of Tenant's obligations hereunder and the recovery of the
Premises. No right or remedy herein conferred upon or reserved to Landlord shall
be exclusive of any other right or remedy, but shall be cumulative and in
addition to all other rights and remedies given hereunder or now or hereafter
existing at law. Landlord shall be entitled to injunctive relief in case of the
violation, or attempted or threatened violation, of any covenant, agreement,
condition or provision of this Lease, or to a decree compelling performance of
any covenant, agreement, condition or provision of this Lease.
(g) Remedies Not Limited. Nothing herein contained shall limit
or prejudice the right of Landlord to exercise any or all rights and remedies
available to Landlord by reason of default or to prove for and obtain in
proceedings under any bankruptcy or insolvency laws, an amount equal to the
maximum allowed by any law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damage referred to
above.
(h) No Waiver by Landlord. No delay or forbearance by Landlord
in exercising any right or remedy hereunder, or Landlord's undertaking or
performing any act or matter which is not expressly required to be undertaken by
Landlord shall be construed, respectively, to be a waiver of Landlord's rights
or to represent any agreement by Landlord to undertake or perform such act or
matter thereafter. Waiver by Landlord of any breach by Tenant of any covenant or
condition herein contained (which waiver shall be effective only if so expressed
in writing by Landlord) or failure by Landlord to exercise any right or remedy
in respect of any such breach shall not constitute a waiver or relinquishment
for the future of Landlord's right to have any
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such covenant or condition duly performed or observed by Tenant, or of
Landlord's rights arising because of any subsequent breach of any such covenant
or condition nor bar any right or remedy of Landlord in respect of such breach
or any subsequent breach. Landlord's receipt and acceptance of any payment from
Tenant which is tendered not in conformity with the provisions of this Lease or
following an Event of Default (regardless of any endorsement or notation on any
check or any statement in any letter accompanying any payment) shall not operate
as an accord and satisfaction or a waiver of the right of Landlord to recover
any payments then owing by Tenant which are not paid in full, or act as a bar to
the termination of this Lease and the recovery of the Premises because of
Tenant's previous default.
23. CURING TENANT DEFAULTS. If Tenant shall default in the performance
of any of its non-monetary obligations hereunder, Landlord without prejudice and
in addition to any other rights it may have at law or in equity, after giving
Tenant written notice of such default and after failure by Tenant within thirty
(30) days of the receipt of such notice to correct or to undertake and
diligently pursue correction of said default(s) in which event the thirty (30)
day period shall be extended for a reasonable time not to exceed an additional
fifteen (15) days (which notice and/or opportunity to cure shall not be required
in case Landlord shall determine that an emergency exists requiring prompt
action), may cure such defaults(s) on behalf of Tenant; and Tenant shall
reimburse Landlord on demand for all costs incurred by Landlord in that regard
plus interest thereon from the date(s) of expenditure at the Default Rate, which
shall be deemed Additional Rent payable hereunder.
24. CURING LANDLORD DEFAULTS. If Landlord shall default in the
performance of any of its non-monetary obligations hereunder which will result
in a material adverse effect on Tenant's operations within the Premises, Tenant
without prejudice and in addition to any other rights it may have at law or in
equity, after giving Landlord written notice of such default and after failure
by Landlord within thirty (30) days of the receipt of such notice to correct or
to undertake and diligently pursue correction of said default(s) in which event
the thirty (30) day period shall be extended for a reasonable time (which notice
and/or opportunity to cure shall not be required in case Tenant shall determine
that an emergency exists requiring prompt action and Landlord's on-site
maintenance personnel are not promptly available), may cure such defaults(s) on
behalf of Landlord; and
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Landlord shall reimburse Tenant within ten (10) days of written demand with all
invoices documenting such costs for all costs incurred by Tenant in that regard
plus interest thereon from the date(s) of expenditure at the Default Rate. In
the event Landlord fails to reimburse Tenant or object to the costs thereof
within thirty (30) days of Tenant's written demand for such payment, Tenant
shall have the right to offset such amount against Fixed Rent and Additional
Rent next coming due under this Lease.
25. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord represents and
warrants to Tenant as follows:
(1) Landlord is the fee owner of the Building and the Project;
(2) Subject to Chesapeake Park Inc.'s vacation of the
Remainder Space with respect to the ability to occupy and lease such Remainder
Space, Landlord has the full right, power and authority to lease the Premises to
Tenant as provided in this Lease;
(3) Tenant shall have access and use of the Premises
twenty-four (24) hours per day, seven (7) days per week, at no extra charge
other than for overtime HVAC and maintenance after standard building hours of
8:00 a.m. to 6:00 p.m., Monday through Friday.
26. SURRENDER. Tenant shall, at the expiration of the Term, promptly
quit and surrender the Premises in good order and condition and in conformity
with the applicable provisions of this Lease, excepting only reasonable wear and
tear and damage by fire or other casualty. Tenant shall have no right to
holdover beyond the expiration of the Term and in the event Tenant shall fail to
deliver possession of the Premises as herein provided, such occupancy shall not
be construed to effect or constitute other than a tenancy at sufferance. During
any period of occupancy beyond the expiration of the Term the amount of Fixed
Rent owed to Landlord by Tenant shall automatically become two hundred percent
(200%) of the sum of Fixed
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Rent as calculated under the provisions of this Lease. If Tenant fails to
surrender the space within thirty (30) days of the termination date, Landlord
may elect to automatically extend the Term on a month-to-month basis, at
Landlord's option, with a Fixed Rent of two hundred percent (200%) of the sum of
the Fixed Rent as calculated under the provisions of this Lease. The failure or
delay of Landlord in notifying or evicting Tenant following the expiration or
sooner termination of the Term shall not create any tenancy rights in Tenant and
any such payments by Tenant may be applied by Landlord against its costs and
expenses, including attorney's fees incurred by Landlord as a result of such
holdover. If Landlord accepts Tenant's holdover Rent, Landlord agrees to treat
Tenant as a holdover (as opposed to a trespasser).
27. RULES AND REGULATIONS. Tenant agrees that at all times during the
Term of this Lease (as same may be extended) Tenant, its employees, agents,
invitees and licensees shall comply with all rules and regulations specified on
Exhibit "C" attached hereto and made a part hereof (the "Rules and
Regulations"), together with all reasonable Rules and Regulations as Landlord
may from time to time promulgate provided they do not increase the financial
burdens of Tenant or unreasonably restrict Tenant's rights under this Lease. In
case of any conflict or inconsistency between the provisions of this Lease and
any Rules and Regulations, the provisions of this Lease shall control. Landlord
shall have no duty or obligation to enforce any Rule and Regulation, or any
term, covenant or condition of any other lease, against any other tenant, and
Landlord's failure or refusal to enforce any Rule or Regulation or any term,
covenant of condition of any other lease against any other tenant shall be
without liability to Landlord or Tenant. However, if Landlord does enforce Rules
or Regulations, Landlord shall endeavor to enforce same equally in a
non-discriminatory manner.
28. GOVERNMENTAL REGULATIONS.
(a) Tenant shall, in the use and occupancy of the Premises and
the conduct of Tenant's business operations therein, at all times comply with
all applicable laws, ordinances, orders, notices, rules and regulations of the
federal, state and municipal governments, or any of their departments and the
regulations of the insurers of the Premises, the Building and/or the Project.
Except as immediately set forth above, Landlord, at its sole cost and expense,
shall comply with all applicable laws, codes, statutes, ordinances, rules and
regulations relating to the Premises, the Building and/or the Project,
including, without limitation, building, health, disability and fire code
requirements.
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(b) Without limiting the generality of the foregoing, Tenant
shall (i) obtain, at Tenant's expense, before engaging in Tenant's business
operations within the Premises, all necessary licenses and permits including
(but not limited to) state and local business licenses or permits, and (ii)
remain in compliance with and keep in full force and effect at all times all
licenses, consents and permits necessary for the lawful conduct of Tenant's
business or profession at the Premises. Tenant shall pay all personal property
taxes, income taxes and other taxes, assessments, duties, impositions and
similar charges which are or may be assessed, levied or imposed upon Tenant and
which, if not paid, could be liened against the Premises or against Tenant's
property therein or against Tenant's leasehold estate.
(c) Landlord shall be responsible for compliance with Title
III of the Americans with Disabilities Act of l990, 42 U.S.C. Section 12181 et
seq. and its regulations, (collectively, the "ADA") (i) as to the design and
construction of the Building and the Project, including, without limitation, the
exterior common areas (e.g., sidewalks and parking areas) and the interior
common areas (e.g., elevators and public lavatories). Except as set forth above
in the initial sentence hereto, Tenant shall be responsible for compliance of
the Premises with the ADA, if applicable, to the extent that it affects the use
and occupancy of the Premises and/or the conduct of Tenant's business therein,
which compliance shall include, without limitation (i) provision for full and
equal enjoyment of the goods, services, facilities, privileges, advantages or
accommodations of the Premises as contemplated by and to the extent required by
the ADA, (ii) compliance relating to requirements under the ADA or amendments
thereto arising after the date of this Lease and (iii) compliance relating to
the design, layout, renovation, redecorating, refurbishment, alteration, or
improvement to the Premises made or requested by Tenant at any time.
(d) Tenant shall indemnify, protect, defend and save Landlord
harmless with regard to any notice of violation by Tenant with any law, order,
ordinance, regulation, permit, license or other governmental matter in any way
relating to the conduct of Tenant's business or profession in the Premises. If
Landlord is named as defendant or a responsible party with respect to any
alleged violation by Tenant as aforesaid, Landlord also may require, by notice
to Tenant, that the matters or conduct giving rise thereto be discontinued by
Tenant unless and until the alleged violation is resolved in Tenant's favor.
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(e) Landlord shall indemnify, protect, defend, and save Tenant
harmless with regard to any non-compliance or alleged non-compliance by Landlord
with any law, order, ordinance, regulation, permit, license, or other
governmental matter in any way relating to the Landlord's operation or ownership
of the Building and the Project.
29. NOTICES. Wherever in this Lease it shall be required or permitted
that notice or demand be given or served by either party to this Lease to or on
the other party, such notice or demand shall be deemed to have been duly given
or served if in writing and either: (i) personally served; (ii) delivered by
pre-paid nationally recognized overnight courier service (e.g., Federal Express)
with evidence of receipt required for delivery; or (iii) forwarded by registered
or certified mail, return receipt requested, postage prepaid; in all such cases
addressed to the parties at the addresses set forth in Section 1 (n) hereof.
Each such notice shall be deemed to have been given to or served upon the party
to which addressed on the date the same is delivered or delivery is refused.
Either party hereto may change its address to which said notice shall be
delivered or mailed by giving written notice of such change to the other party
hereto, as herein provided.
30. BROKERS. Landlord and Tenant represent and warrant to each other
that neither has had any dealings, negotiations or consultations with respect to
the Premises or this transaction with any broker or finder other than the Broker
identified in Section 1(m) hereof; and that otherwise no broker or finder called
the Premises to Tenant's attention for lease or took any part in any dealings,
negotiations or consultations with respect to the Premises or this Lease. Each
party agrees to indemnify and hold the other harmless from and against all
liability, cost and expense, including attorney's fees and court costs, arising
out of any misrepresentation or breach of warranty under this Section 30.
31. CHANGE OF BUILDING/PROJECT NAME. Landlord reserves the right at any
time and from time to time to change the name by which the Building and/or
Project is designated; provided, however, that Landlord shall provide Tenant
with thirty (30) days prior written notice of Landlord's intention to so change
the name of the Building.
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32. LANDLORD'S LIABILITY. Landlord's obligations hereunder shall be
binding upon Landlord only for the period of time that Landlord is in ownership
of the Building; and, upon termination of that ownership, Tenant, except as to
any obligations which have then due and owing, shall look solely to Landlord's
successor in interest in the Building for the satisfaction of each and every
obligation of Landlord hereunder. Landlord shall have no personal liability
under any of the terms, conditions or covenants of this Lease and Tenant shall
look solely to the equity of Landlord in the Building of which the Premises form
a part for the satisfaction of any claim, remedy or cause of action accruing to
Tenant as a result of the breach of any action of this Lease by Landlord. In
addition to the foregoing, no recourse shall be had for any obligation of
Landlord or Brandywine Realty Trust, or for any claim based on Landlord's
obligations under this Lease against any past, present of future trustee,
shareholder, officer, director, agent or employee of Landlord or Brandywine
Realty Trust, whether by virtue of any statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all such other liability
being expressly waived and released by Tenant with respect to the above-named
individuals and entities. Any provisions in this Lease which purport to release
Landlord of its obligations under this Lease upon any transfer of Landlord's
interest in the Project, shall only release Landlord for said obligations
accruing on and after such transfer. Any provisions in this Lease which purport
to limit Tenant's recourse against Landlord to Landlord's interest in the
Project shall include any and all proceeds derived from such interest,
including, without limitation, any sales, rental and insurance proceeds.
33. AUTHORITY.
(a) Tenant represents and warrants that (i) Tenant is duly
organized, validly existing and legally authorized to do business in the State
of New Jersey, and (ii) the persons executing this Lease are duly authorized to
execute and deliver this Lease on behalf of Tenant.
(b) Landlord represents and warrants that (i) Landlord is duly
organized, validly existing and legally authorized to do business in the State
of New Jersey, and (ii) the persons executing this Lease are duly authorized to
execute and deliver this Lease on behalf of Landlord.
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34. NO OFFER. The submission of the Lease by Landlord to Tenant for
examination does not constitute a reservation of or option for the Premises or
of any other space within the Building or in other buildings owned or managed by
Landlord or its affiliates. This Lease shall become effective as a Lease only
upon the execution and legal delivery thereof by both parties hereto.
35. RENEWAL.
(a) Tenant shall have and is hereby granted the option to
extend the Term hereof for one (1) additional period of five (5) years (a
"Renewal Period"), provided (i) Tenant gives written notice to Landlord of
Tenant's election to exercise such extension option no later than nine (9)
months prior to the expiration of the last Lease Year of the Term, and (ii) no
event exists at the time of the exercise of such option or arises subsequent
thereto, which event by notice and/or the passage of time would constitute an
Event of Default if not cured within the applicable cure period.
(b) All terms and conditions of this Lease, including, without
limitation, all provisions governing the payment of Additional Rent, shall
remain in full force and effect during the Renewal Period, except that Fixed
Rent payable during the first Lease Year of the Renewal Period shall be equal to
the lesser of (i) ninety-five percent (95%) of the then-current Fair Market
Rental Rate (hereinafter defined) with respect to comparable office space at the
time of the commencement of the Renewal Period (using an expense stop based on
then current cost in the calendar year in which the Renewal Period commences),
or (ii) Fixed Rent payable during the last Lease Year of the initial Term or the
Renewal Period, as the case may be. As used in this Lease, the term "Fair Market
Rental Rate" shall mean the fair market rental rate per square foot of rentable
area that would be agreed upon between a landlord and a tenant entering into a
new lease for comparable space as to location, configuration, view and elevator
exposure, size and use, in a comparable building as to location, quality,
reputation and age, with a comparable build-out, a comparable term and a
comparable Expense Stop for operating expense and real estate tax pass-throughs
assuming the following: (A) the landlord and the tenant are informed and
well-advised and each is acting in what it considers its own best interests and
(B) the tenant will continue to pay Tenant's Allocated Share of increases in
Recognized Expenses and Taxes over a new expense stop (which, for Tenant, is the
calendar year during which occurs the first day of the Renewal Period).
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(c) Landlord and Tenant shall negotiate in good faith to
determine Fixed Rent for the first Lease Year of the Renewal Period, for a
period of thirty (30) days after the date on which Landlord receives Tenant's
written notice of Tenant's election to exercise the extension option provided
for under this Section 35. If Landlord and Tenant cannot agree on the Fair
Market Rent, the Fair Market Rent shall be established by the following
procedure: (1) Tenant and Landlord shall agree on a single MAI certified
appraiser who shall have a minimum of ten (10) years experience in real estate
leasing in the market in which the Premises is located and who has not conducted
within the previous five (5) years and does not presently conduct and does not
anticipate conducting business in the future with either Tenant or Landlord, (2)
Landlord and Tenant shall each notify the other (but not the appraiser), of its
determination of such Fair Market Rent and the reasons therefor, (3) during the
next fourteen (14) days both Landlord and Tenant shall prepare a written
critique of the other's determination and shall deliver it to the other party,
(4) on the tenth (10th) day following delivery of the critiques to each other,
Landlord's and Tenant's determinations and critiques (as originally submitted to
the other party, with no modifications whatsoever) shall be submitted to the
appraiser, who shall decide whether Landlord's or Tenant's determination of Fair
Market Rent is more correct. The determinations so chosen shall be the Fair
Market Rent. The appraiser shall not be empowered to choose any number other
than the Landlord's or Tenant's. The fees of the appraiser shall be split by the
parties.
(d) Should Landlord and Tenant reach agreement as to Fixed
Rent for the first Lease Year of the Renewal Period within the thirty (30) day
period set forth in Section 28(c), above, Tenant shall execute an amendment
modifying this Lease within a reasonable period of time after Landlord presents
same to Tenant, or, in the alternative, within a reasonable period of time after
the appraisers' determination of same, which agreement shall set forth, inter
alia, Fixed Rent for first Lease Year of the Renewal Period.
36. RIGHT OF FIRST NEGOTIATION FOR EXPANSION SPACE.
(a) In the event that any space in the Building becomes or is
reasonably anticipated by Landlord to become vacant and freely available for
Landlord to lease to Tenant during the
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Term (including any renewals or extensions thereof), Landlord shall provide
Tenant with written notice ("Availability Notice") of the availability of such
space (the "Expansion Space"). In addition, Landlord shall advise Tenant in
writing of any lease requests or requests for proposal which Landlord receives
which Landlord reasonably believes are likely to meet Landlord's then existing
leasing criteria (the "Interest Notice"). Provided that no Event of Default
occurs which is not cured within the applicable cure period and Tenant provides
to Landlord written notice ("Expansion Notice"), within thirty (30) days after
receipt of Landlord's Interest Notice, of Tenant's desire to expand the Premises
into the Expansion Space, Tenant shall have the first opportunity (the "Right of
First Opportunity") to negotiate with Landlord for a ten (10) day period
immediately following Tenant's delivery of such Expansion Notice, the terms on
which it will lease the Expansion Space and secure an amendment or addendum to
the Lease (the "Expansion Amendment") executed and delivered by Landlord and
Tenant evidencing such terms. In the event that (i) Landlord and Tenant fail to
agree on such terms and execute and deliver an Expansion Amendment within such
ten (10) day period, or (ii) Tenant fails to deliver the Expansion Notice (or
otherwise fails to comply with any other condition to the exercise of its Right
of First Opportunity) within the time period set forth above, Tenant's Right of
First Opportunity to lease the Expansion Space pursuant to this Section 36 shall
terminate until such time that additional Expansion Space becomes available in
the future (i.e., the Interest Notice party does not execute a lease or it
executes a lease and the term thereunder expires), and subject to Section 37
below, Landlord shall have the right to lease the Expansion Space at any time to
any other person or entity upon the same terms and conditions which Landlord
offered said Expansion Space to Tenant. Time is of the essence in this Section
36.
(b) If Tenant leases the Expansion Space, within the time and
in the manner provided in this Section 36, then as of the Expansion Space
Commencement Date (hereinafter defined), the parties shall execute a mutually
agreeable form of Lease Amendment.
37. RIGHT OF FIRST REFUSAL. With respect to the Expansion Space, if
prior to Tenant's delivery of an Expansion Notice to Landlord, Landlord receives
a third party (i) written offer to lease space in the Building, (ii) executed
Request for Proposal, or (ii) executed letter of intent to lease space in the
Building, (any of events (i), (ii) or (iii) being referred to as an "Offer")
Landlord shall advise Tenant in writing of such Offer
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together with a copy of such Offer. Provided that no event has occurred which
with the passage of time or the giving of notice would be deemed an Event of
Default if not cured within the applicable cure period, Tenant is granted the
right of first refusal (the "Right of First Refusal") to agree to all of the
terms and conditions of the Offer with respect to the entire space noted in any
such Offer. Tenant shall have until 5:00 p.m. E.S.T. on the tenth (10th) day
from its receipt of the Offer from Landlord to exercise in writing its Right of
First Refusal, and, thereby, be bound by the terms and conditions of such Offer.
If Tenant exercises its Right of First Refusal, the Offer space shall
immediately become part of the leased Premises hereunder at the lease rates set
forth in the Offer and Landlord and Tenant shall execute a mutually agreed upon
form of Lease Amendment with respect to the space and terms set forth in the
Offer. If Tenant does not exercise its Right of First Refusal within the above
noted time period, Tenant shall be deemed to have refused to exercise its Right
of First Refusal for such Offer. Notwithstanding the foregoing, if Landlord does
not enter into such Offer with respect to the space therein described, then
Tenant's Right of First Negotiation and Right of First Refusal shall thereafter
apply to such space. Time is of the essence in connection with this provision of
the Lease.
38. MISCELLANEOUS PROVISIONS.
A. Successors. The respective rights and obligations provided
in this Lease shall bind and inure to the benefit of the parties hereto, their
successors and assigns.
B. Governing Law. This Lease shall be construed, governed and
enforced in accordance with the laws of the State of New Jersey, without regard
to principles relating to conflicts of law.
C. Severability. If any provisions of this Lease shall be held
to be invalid, void or unenforceable, the remaining provisions hereof shall in
no way be affected or impaired and such remaining provisions shall remain in
full force and effect.
D. Captions. Marginal captions, titles or exhibits and riders
and the table of contents in this Lease are for convenience and reference only,
and are in no way to be construed as defining, limiting or modifying the scope
of intent of the various provisions of this Lease.
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E. Gender. As used in this Lease, the word "person" shall mean
and include, where appropriate, an individual, corporation, partnership or other
entity; the plural shall be substituted for the singular, and the singular for
the plural, where appropriate; and the words of any gender shall mean to include
any other gender.
F. Entire Agreement. This Lease, including the Exhibits,
supersedes any prior discussions, proposals, negotiations and discussions
between the parties and this Lease contains all the agreements, conditions,
understandings, representations and warranties made between the parties hereto
with respect to the subject matter hereof, and may not be modified orally or in
any manner other than by an agreement in writing signed by both parties hereto
or their respective successors in interest. Without in any way limiting the
generality of the foregoing, this Lease can only be extended pursuant to the
terms hereof, and in Tenant's case, with the due exercise of an option (if any)
contained herein or a formal agreement signed by both Landlord and Tenant
specifically extending the terms. Until a final binding amendment or
modification is signed, no negotiations, correspondence by Landlord or offers to
extend the terms shall be deemed an extension of the termination date for any
period whatsoever.
G. Counterparts. This Lease may be executed in any number of
counterparts, each of which when taken together shall be deemed to be one and
the same instrument.
H. Telefax Signatures. The parties acknowledge and agree that
notwithstanding any law or presumption to the contrary a telefaxed signature of
either party whether upon this Lease or any related document shall be deemed
valid and binding and admissible by either party against the other as if same
were an original ink signature.
I. Calculation of Time. In computing any period of time
prescribed or allowed by any provision of this Lease, the day of the act, event
or default from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, unless it is
a Saturday, Sunday or a legal holiday, in which event the period runs until the
end of the next day which is not a Saturday, Sunday, or legal holiday. Unless
otherwise provided herein, all Notices and other periods expire as of 5:00 p.m.
(local time in East Windsor, New Jersey) on the last day of the Notice or other
period.
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J. No Merger. There shall be no merger of this Lease or of the
leasehold estate hereby created with the fee estate in the Premises or any part
thereof by reason of the fact that the same person, firm, corporation, or other
legal entity may acquire or hold, directly or indirectly, this Lease of the
leasehold estate and the fee estate in the Premises or any interest in such fee
estate, without the prior written consent of Landlord's mortgagee.
K. Time of the Essence. TIME IS OF THE ESSENCE IN ALL
PROVISIONS OF THIS LEASE, INCLUDING ALL NOTICE PROVISIONS TO BE PERFORMED BY OR
ON BEHALF OF TENANT AND LANDLORD.
L. Recordation of Lease. Tenant shall have the right to record
a memorandum of this Lease upon written notice to Landlord. Upon either Tenant's
or Landlord's request, the parties agree to execute a short form of this Lease
for recording purposes containing such terms as the parties believe appropriate
or desirable, the expense thereof to be borne by the party requesting such
recording. If such a short form of this Lease is recorded, upon the termination
of this Lease, Tenant shall execute, acknowledge, and deliver to Landlord an
instrument in writing releasing and quitclaiming to Landlord all right, title
and interest of Tenant in and to the Premises arising from this Lease or
otherwise, all at the cost of Landlord.
M. Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than any payment of Fixed Rent or Additional Rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated Fixed Rent or Additional Rent due and payable hereunder, nor shall
any endorsement or statement or any check or any letter accompanying any check
or payment as Rent be deemed an accord and satisfaction. Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other right or remedy provided for in this
Lease, at law or in equity.
N. No Partnership. Landlord does not, in any way or for any
purpose, become a partner of Tenant in the conduct of its business, or
otherwise, or joint venturer or a member of a joint enterprise with Tenant. This
Lease establishes a relationship solely of that of a landlord and tenant.
O. Attorneys' Fees. In the event Landlord and Tenant engage in
any litigation regarding any subject matter relating to this Lease, the
unsuccessful litigant shall pay the successful
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litigant all reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees and costs, incurred by the successful litigant in
connection with such litigation.
P. General Abatement. If all or part of the Premises (or
Tenant's access thereto) are rendered untenantable and continue for four (4)
consecutive days, and such conditions were not caused by Tenant, Tenant's Rent
obligations shall proportionately xxxxx for the duration of such untenantable
conditions, said abatement to reflect the portions of the Premises which are
untenantable. The conditions giving rise to such abatement shall include,
without limitation, casualty losses, environmental conditions and Landlord's
failure to perform its maintenance, repair and replacement obligations under the
Lease which cause a material adverse effect on Tenant's operations.
Notwithstanding the foregoing, if such untenantable conditions arise and
continue for four (4) consecutive days at any time during the last year of the
Term, and affect the material operations of Tenant's business or more of the
rentable area of the Premises, Tenant shall have the right to terminate this
Lease, without liability, upon written notice to Landlord, in which case
Landlord shall immediately return any prepaid Rent, the L/C Deposit and the Cash
Deposit.
Q. Force Majeure. Landlord and Tenant shall be excused from
performing an obligation or undertaking other than the payment of Rent and
Additional Rent provided for in this Lease so long as such performance is
prevented or delayed, retarded or hindered by Act of God, force majeure, fire,
earthquake, flood, explosion, action of the elements, war, invasion,
insurrection, riot, mob violence, sabotage, inability to procure or a general
shortage of labor, equipment, facilities, materials or supplies in the open
market, failure of transportation, strike, lockout, action of labor unions, a
taking by eminent domain, requisition, laws orders of government, or of civil,
military or naval authorities, or any other cause whether similar or dissimilar
to the foregoing, not within the reasonable control of Landlord or Tenant,
including reasonable delays for adjustments of insurance ("Force Majeure").
39. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT WAIVE THE RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT
MATTER OF THIS LEASE. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY
MADE BY TENANT AND TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON
ACTING ON BEHALF OF LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS
WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR
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NULLIFY ITS EFFECT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR
HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN
THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE
WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
TENANT FURTHER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS WAIVER PROVISION AND AS EVIDENCE OF SAME HAS EXECUTED THIS
LEASE.
40. CONSENT TO JURISDICTION. Tenant hereby consents to the exclusive
jurisdiction of the state courts located in Xxxxxx County, New Jersey and to the
federal courts located in the District of New Jersey.
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IN WITNESS WHEREOF, the parties hereto have executed this
Lease under seal the day and year first above written.
WITNESS: LANDLORD:
BRANDYWINE OPERATING
PARTNERSHIP, L.P.
By: Brandywine Realty Trust,
------------------------- Its general partner
By:
------------------------------------------
Xxxxxx X. Xxxxxxx,
President and CEO
WITNESS: TENANT:
i-STAT CORPORATION
By:
------------------------ ------------------------------------------
Name:
Title:
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROJECT
[Attach]
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EXHIBIT "A-1"
SPACE PLAN OF THE PREMISES
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EXHIBIT "A-2"
CONFIRMATION OF LEASE TERM
THIS MEMORANDUM made as of the ___ day of _________, 1998, between
BRANDYWINE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, with an
office at 00 Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
("Landlord") and _________________________, with its principal place of business
at ______________________________ ______________________ ("Tenant"), who entered
into a lease dated for reference purposes as of ___________ __, 1998, covering
certain premises located at ________________________________________________.
All capitalized terms, if not defined herein, shall be defined as they are
defined in the Lease.
1. The Parties to this Memorandum hereby agree that the date of
______________, 1998 is the "Commencement Date" of the Term, that the date
___________, 1998 is the Rent Commencement Date and the date _________ is the
expiration date of this Lease.
2. Tenant hereby confirms the following:
(a) That it has accepted possession of the Premises pursuant
to the terms of the Lease;
(b) That Landlord has fulfilled all of its duties as set forth
in the Lease;
(c) That there are no offsets or credits against rentals, nor
has any security deposit been paid except as provided by the Lease terms;
(d) That the Lease is in full force and effect.
3. This Memorandum, each and all of the provisions hereof, shall inure
to the benefit, or bind, as the case may require, the parties hereto, and their
respective successors and assigns, subject to the restrictions upon assignment
and subletting contained in the Lease.
WITNESS: LANDLORD:
BRANDYWINE OPERATING PARTNERSHIP,
L.P.
By: Brandywine Realty Trust,
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its general partner
By:
----------------------------- -------------------------------------
[SEAL]
WITNESS: TENANT:
i-STAT CORPORATION
By:
----------------------------- -------------------------------------
[SEAL]
X-0-0
00
XXXXXXX "X"
WORK AGREEMENT
This Work Agreement (this "Work Agreement") is attached to and made a
part of that certain Lease (the "Lease") dated July ___, 1998, by and between
Brandywine Operating Partnership, L.P., as landlord ("Landlord") and i-STAT
Corporation, as tenant ("Tenant") for the premises (the "Premises") described
therein in the building located at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx
Xxxxxx (the "Building"). It is the intent of this Work Agreement that Tenant
shall be permitted freedom in the design and layout of the Premises, consistent
with applicable building codes and requirements of law, including without
limitation the Americans With Disabilities Act, and with sound architectural and
construction practice in similarly situated buildings. Capitalized terms not
otherwise defined in this Work Agreement shall have the meanings set forth in
the Lease. In the event of any conflict between the terms hereof and the terms
of the Lease, the terms hereof shall prevail for the purposes of design and
construction of the Tenant Improvements (hereinafter defined).
A. TENANT IMPROVEMENTS. All construction, improvements or alterations
required by Tenant in the Premises (the "Tenant Improvements") shall be
undertaken by Tenant, at Tenant's sole cost and expense, subject to the
application of the Improvement Allowance (hereinafter defined), in accordance
with the terms of this Work Agreement.
B. PLANS AND SPECIFICATIONS.
1. SPACE PLANNER/ARCHITECT. Tenant shall employ the services
of The AZTEC Corporation/AZTEC Architects P.C. (the "Space Planner") to prepare
space plans and working drawings and specifications for the Tenant Improvements.
Tenant's Plan (hereinafter defined) shall be prepared in accordance with the
Building standard format for working drawings and with information furnished by
and coordination with Landlord's space planner and structural, mechanical,
electrical and plumbing engineers. Tenant shall be solely responsible for all
fees and costs of the Space Planner, subject to the application of the
Improvement Allowance.
2. TIME SCHEDULE. Landlord and Tenant shall adhere to the
following schedule:
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a. Tenant has delivered the Final Space Plan and
Landlord has accepted such Final Space Plan subject to receipt and review of
mechanical and electrical plans. Within seven (7) days after Landlord has
approved the Preliminary Plan, Tenant shall furnish to Landlord for its review
and approval a proposed detailed space plan for the Tenant Improvements (the
"Final Space Plan") prepared by the Space Planner. The Final Space Plan shall
contain the information and otherwise comply with the reasonable requirements of
Landlord. Landlord shall advise Tenant of Landlord's approval or disapproval of
the Final Space Plan within seven (7) days after Tenant submits the Final Space
Plan to Landlord. Tenant shall revise the proposed Final Space Plan to meet
Landlord's objections, if any, and resubmit the Final Space Plan to Landlord for
its review and approval promptly after Landlord notifies Tenant of Landlord's
objections, if any. Landlord shall respond to any revised Final Space Plan
submitted by Tenant within three (3) business days after its submission.
b. On or before July 24th, Tenant shall furnish to
Landlord for its review and approval all architectural plans, working drawings
and specifications (the "Contract Documents") for the construction of the Tenant
Improvements in the Premises in accordance with the Final Space Plan. The
Contract Documents shall include without limitation the final mechanical,
electrical, plumbing and structural plans and specifications for the Premises
and all final architectural plans, working drawings and specifications for the
Tenant Improvements. The Contract Documents shall be sufficient in form and
substance to enable the Contractor (hereinafter defined) to obtain a building
permit for the construction of the Tenant Improvements. Landlord shall advise
Tenant of Landlord's approval or disapproval of the Contract Documents, or any
of them, within three (3) business days after Tenant submits the Contract
Documents to Landlord. Tenant shall revise the Contract Documents to meet
Landlord's objections, if any, and resubmit the Contract Documents to Landlord
for its review and approval promptly after Landlord notifies Tenant of
Landlord's objections, if any. Landlord shall respond to any revised Contract
Documents submitted by Tenant within three (3) business days after their
submission.
c. The Preliminary Plan, the Final Space Plan and the
Contract Documents are referred to collectively herein as the "Tenant's Plan."
d. The Tenant's Plan shall comply with all applicable
building codes, laws and regulations (including without limitation the Americans
With Disabilities Act).
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3. CHANGES. If there are any changes requested by
Tenant, after Landlord's approval of Tenant's Plan in accordance with the
schedule set forth above, each such change must be approved by Landlord (which
approval shall not be unreasonably withheld, conditioned or delayed) and paid
for by Tenant subject, however, to the application of the Improvement Allowance
described in Section C.2 below. Tenant shall be responsible for all
architectural and engineering costs and delivery resulting from such changes
subject, however, to the application of the Improvement Allowance described in
Section C.2 below.
C. COST OF TENANT IMPROVEMENTS.
1. CONSTRUCTION COSTS. All costs of design and construction of
the Tenant Improvements, including without limitation the costs of all space
planning, architectural and engineering work related thereto, all governmental
and quasi-governmental approvals and permits required therefor, the cost to
install the Tenant Improvements by the Contractor (hereinafter defined), all
other direct and indirect construction costs (collectively, "Construction
Costs"), shall be paid by Tenant, subject, however, to the application of the
Improvement Allowance described in Section C.2 below, not previously disbursed
pursuant to this Work Agreement (the "Available Allowance").
2. IMPROVEMENT ALLOWANCE. Landlord agrees to provide to Tenant
an allowance (the "Improvement Allowance") in the amount of Six Hundred Eighteen
Thousand Three Hundred Twenty-One Dollars ($618,321.00) (or Sixteen and 50/100
Dollars ($16.50) per rentable square foot of the Premises), to be applied solely
to the Construction Costs and the reasonably documented costs of Landlord's
construction manager not to exceed $1,200 (being $60/hour for a 20 hour period).
In addition, Landlord agrees to fund 1/2 the cost of (i) the demising wall, and
(ii) the shipping door in the loading dock area and other loading dock
improvements as shown on Tenant's Plans, Landlord's portion of such costs not to
exceed $10,000, to be built by Tenant in accordance with the Tenant's Plan.
Subject to the provisions of Section C.3, below, the Construction Costs shall be
paid by Landlord to the extent of, and shall be deducted by Landlord from, the
Available Allowance, as invoices therefor are rendered to Landlord as and when
Construction Costs are actually incurred by Tenant; provided, however, that
Landlord shall have received a final lien release and Tenant shall have
satisfied all of the other conditions set forth in Section C.3, below. In the
event that Tenant does not expend all of the Improvement Allowance for costs
permitted hereunder, the unused portion of the Improvement Allowance shall be
credited to monthly installments of Fixed Rent
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next coming due under the Lease. Notwithstanding the foregoing, Tenant shall not
be permitted to use more than Fifty-Six Thousand Two Hundred Eleven Dollars
($56,211.00)(or One and 50/100 Dollars ($1.50) per rentable square foot of the
Premises) of the Improvement Allowance for the Construction Costs pertaining to
design fees, architectural and engineering drawings and construction documents.
3. DISBURSEMENT OF IMPROVEMENT ALLOWANCE. Disbursement of the
Improvement Allowance shall be subject to the following conditions:
a. The Draw Request shall include Tenant's Space
Planners and Tenant's certification that the Tenant Improvements covered thereby
have been satisfactorily completed, and shall be substantiated by invoices for
such work. Within fifteen (15) days of Landlord's receipt of the final Draw
Request, Landlord shall make payment to the Contractor or as otherwise directed
by Tenant, subject as hereinafter provided.
b. The draw request covering construction work shall
be accompanied by the AIA Application and Certificate for Payment (AIA Documents
G702 and G703), certified by the Space Planner, and covering only such work as
is actually installed in the Premises. All Certificates for Payment shall
include full releases of lien.
c. Landlord shall not disburse the initial 75% of the
Improvement Allowance until Landlord has received a final Draw Request
accompanied by final lien waivers and/or other evidence reasonably satisfactory
to Landlord that all contractors, workers, material and service suppliers and
all other persons having claims against Tenant for payment of work done or
material or services supplied in connection with the Tenant Improvements have
been paid in full, a temporary certificate of occupancy has been issued by the
relevant local authority, and Tenant has accepted the Premises. Upon delivery by
Tenant and receipt by Landlord of a final certificate of occupancy from the
relevant local authorities, Landlord shall release the remaining 25% of the
Improvement Allowance.
4. COSTS EXCEEDING AVAILABLE ALLOWANCE. All Construction Costs
in excess of the Available Allowance shall be paid by Tenant within thirty (30)
days of receipt by Tenant of invoices therefor.
D. CONSTRUCTION.
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1. SELECTION OF TENANT'S CONTRACTOR. Once Landlord has
approved the Tenant's Plan, Tenant shall prepare a bid package in order to
obtain a fixed price bid for the construction of the Tenant Improvements (the
"Bid Package"). Tenant shall submit the Bid Package to each of the following
general contractors: Selkirk Group; Sweetwater Construction Corporation; NOVA
Corporation; and NTX Incorporated (the "Approved General Contractors"). Once
Tenant has received from the Approved General Contractors bids for the
construction of the Tenant Improvements, Tenant shall select the contractor to
undertake the Tenant Improvements (the "Contractor") from the foregoing list of
Approved General Contractors.
2. CONSTRUCTION BY THE CONTRACTOR. In undertaking the Tenant
Improvements, Tenant and the Contractor shall comply with the following
conditions:
a. No work shall proceed without Landlord's prior
written approval (which shall not be unreasonably withheld, conditioned or
delayed) of (i) Tenant's subcontractors, and (ii) compliance by Tenant with the
insurance requirements set forth below;
b. All work (except pre-construction work) shall be
performed in conformity with (i) the final approved Tenant's Plan, (ii) all
applicable codes and regulations of governmental authorities having jurisdiction
over the Building and the Premises, and (iii) valid building permits and other
authorizations from appropriate governmental agencies, when required, which
shall have been obtained at Tenant's sole expense. Any work not acceptable to
the appropriate governmental agencies shall be promptly corrected or replaced at
Tenant's expense; and
c. Before any work is commenced or the Contractor's
equipment is moved onto any part of the Building, the Contractor and all
subcontractors shall deliver to Landlord certificates evidencing the following
types of insurance coverage in the following minimum amounts:
(165535 Worker's compensation coverage as
required by law and employers liability coverage, including without limitation
bodily injury caused by disease with a limit of $250,000.00 per employee;
(265535 Comprehensive general liability
policy to include, without limitation, completed operations, property damage,
independent contractor's and personal injury
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coverage with limits in an amount of not less than $2,000,000.00 Combined Single
Limit; and
(365535 Automobile liability coverage, with
bodily injury limits of at least $1,000,000.00 per accident.
X. XXXXX BY TENANT OR LANDLORD. No delay by Tenant in completing the
Tenant Improvements shall delay or otherwise affect the Rent Commencement Date.
In the event that Landlord fails to approve or reject the Contract Documents
and/or any other documents or reasonable requests submitted to Landlord within
the applicable Response Period (hereinafter defined) (a "Landlord Delay") such
requests shall be deemed approved by Landlord. If the Tenant Improvements are
not substantially completed by September 30, 1998, notwithstanding commercially
reasonable efforts by Tenant to do so, then for each such day of Landlord Delay,
the Rent Commencement Date shall be extended by one (1) day. As used herein, the
term "Response Period" shall mean the time periods set forth in subsections
B.2.a, b and c, above, or elsewhere in this Work Agreement or the Lease, within
which Landlord is required to approve or reject Contract Documents, or any other
documents or reasonable requests respectively.
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EXHIBIT "C"
BUILDING RULES AND REGULATIONS
LAST REVISION: FEBRUARY 1, 1998
Landlord reserves the right to rescind any of these rules and make such other
and further rules and regulations as in the reasonable judgment of Landlord
shall from time to time be needed for the safety, protection, care and
cleanliness of the Project, the operations thereof, the preservation of good
order therein and the protection and comfort of its tenants, their agents,
employees and invitees, which rules when made and notice thereof given to Tenant
shall be binding upon him in a like manner as if originally prescribed. Landlord
will notify Tenant in writing of any changes to the Building Rules and
Regulations.
1. Sidewalks, entrances, passages, elevators, vestibules, stairways,
corridors, halls, lobby and any other part of the Building shall not be
obstructed or encumbered by any tenant or used for any purpose other
than ingress or egress to and from each tenant's premises. Landlord
shall have the right to control and operate the common portions of the
Building and exterior facilities furnished for common use of the
tenants (such as the eating, smoking, and parking areas) in a
commercially reasonable, non-arbitrary, non-prejudicial and prudent
manner. Landlord shall program the exterior lights, to the extent
possible, to stay on until 11:00 p.m.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord. All
drapes, or window blinds, must be of a quality, type and design, color
and attached in a manner approved by Landlord.
3. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, or placed in hallways or
vestibules in the common areas without the prior written consent of
Landlord.
4. Rest rooms and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed and no
debris, rubbish, rags or other substances shall be thrown therein. Only
standard toilet tissue may be flushed in commodes. All damage resulting
from any misuse of these fixtures shall be the responsibility of the
Tenant who, or whose employees or agents shall have caused same.
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5. Tenants shall not construct or maintain, use or operate in any part of
the Project any electrical device, wiring or other apparatus in
connection with a loud speaker system or other sound/communication
system which may be heard outside the Premises. Any such communication
system to be installed within the Premises shall require prior written
approval of Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed.
6. No bicycles, baby carriages or other vehicles and no animals, birds or
other pets of any kind shall be brought into or kept in or about the
Building; provided, however, Tenant may store its Employee's bicycles
within the Premises, all such bicycles to be brought into the Project
via the loading doors.
7. No tenant shall cause or permit any unusual or objectionable odors to
be produced upon or permeate from its premises.
8. No tenant, or employees of Tenant, shall make any unseemly or
disturbing noises or disturb or interfere with the occupants of this or
neighboring buildings or residences by voice, musical instrument,
radio, talking machines, whistling, singing, or in any way. All passage
through the Building's hallways, elevators, and main lobby shall be
conducted in a quiet, business-like manner.
9. No tenant shall throw anything out of the doors, windows, or down
corridors or stairs of the Building.
10. No tenant may change the use of the premises without the prior written
approval of Landlord. Tenant shall be permitted to use the Premises for
the Permitted Use.
11. Tenant shall not place or use in or about the Premises or Project any
explosives, gasoline, kerosene oil, acids, caustics or any other
flammable, explosive, or hazardous material without prior written
consent of Landlord.
12. No smoking is permitted in the rest rooms, hallways, elevators, stairs,
lobby, exit and entrances vestibules, sidewalks, parking lot area
except for the designated exterior smoking area. All cigarette ashes
and butts are to be deposited in the containers provided for same, and
not disposed of on sidewalks, parking lot areas, or toilets within the
Building rest rooms.
13. Tenants are not to install any additional locks or bolts of any kind
upon any door or window of the Building without
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prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Each tenant must, upon
the termination of tenancy, return to the Landlord all keys for the
Premises, either furnished to or otherwise procured by such tenant, and
all security access card to the Building.
14. All doors to hallways and corridors shall be kept closed during
business hours except as they may be used for ingress or egress.
15. Tenant shall not use the name of the Building, Landlord or Landlord's
agent in any way in connection with his business except as the address
thereof. Landlord shall also have the right to prohibit any advertising
by Tenant, which, in its sole opinion, tends to impair the reputation
of the Building or its desirability as a building for offices, and upon
written notice from Landlord, Tenant shall refrain from or discontinue
such advertising.
16. Tenants must be responsible for all security access cards issued to
them, and to secure the return of same from any employee terminating
employment with them. No person/company other than Building tenants
and/or their employees may have security access cards unless Landlord
grants prior written approval.
17. All deliveries by vendors, couriers, clients, employees or visitors to
the Building which involve the use of a hand cart, hand truck, or other
heavy equipment or device must be made via the Freight Elevator. Except
to the extent Landlord recovers under applicable insurance or from the
applicable vendor, Tenant shall be responsible to Landlord for any loss
or damage resulting from any deliveries made by or for Tenant to the
Building.
18. Landlord reserves the right to inspect all freight to be brought into
the Building, and to exclude from the Building all freight or other
material which violates any of these rules and regulations.
19. Tenants will refer all contractors, contractor's representatives and
installation technicians, rendering any service on or to the premises
for such tenant, to Landlord for Landlord's approval and supervision
before performance of any contractual service or access to Building.
This provision shall apply to all work performed in the Building
including installation of telephones, telegraph equipment, electrical
devices and attachments and installations of any
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nature affecting floors, walls, woodwork, trim, windows, ceilings,
equipment or any other physical portion of the Building. Landlord
reserves right to require that all agents of contractors/vendors sign
in and out of the Building.
20. Landlord reserves the right to exclude from the Building at all times
any person who is not known or does not properly identify himself to
Landlord's management or security personnel.
21. No space within the Building, or in the common areas such as the
parking lot, may be used at any time for the purpose of lodging,
sleeping, or for any immoral or illegal purposes.
22. No employees or invitees of Tenant shall use the hallways, stairs,
lobby, or other common areas of the Building as lounging areas during
"breaks" or during lunch periods.
23. Each tenant, before closing and leaving their premises, shall use their
commercially reasonable efforts to lower the blinds within their
spaces.
24. No canvassing, soliciting or peddling is permitted in the Building or
its common areas by tenants, their employees, or other persons. Each
tenant shall cooperate to prevent same and shall report any such
incident to Landlord's management.
25. No mats, trash, or other objects shall be placed in the public
corridors, hallways, stairs, or other common areas of the Building.
26. Tenant must place all recyclable items of cans, bottles, plastic and
office recyclable paper in appropriate containers provided by Landlord
in each tenant's space. Removable of these recyclable items will be by
Landlord's janitorial personnel.
27. Landlord does not maintain suite finishes which are non-standard, such
as kitchens, bathrooms, wallpaper, special lights, etc.
28. No pictures, signage, advertising, decals, banners, etc. are permitted
to be placed in or on windows in such a manner as they are visible from
the exterior, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, conditioned or delayed.
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29. Tenant and Tenant's employees are prohibited at any time from eating or
drinking in hallways, elevators, rest rooms, lobby or lobby vestibules.
30. Tenant shall be responsible to Landlord for any acts of vandalism
performed in the Building by its employees, agents, invitees or
visitors.
31. No tenant shall permit the visit to its premises of persons in such
numbers or under such conditions as to interfere with the use and
enjoyment of the entrances, hallways, elevators, lobby or other public
portions or facilities of the Building and exterior common areas by
other tenants.
36. Landlord's employees shall not perform any work or do anything outside
of their regular duties unless under special instructions from
Landlord. Requests for such requirements must be submitted in writing
to Landlord.
32. Tenant agrees that neither tenant nor its agents, employees, licensees
or invitees will interfere in any manner with the installation and/or
maintenance of the heating, air conditioning and ventilation facilities
and equipment.
33. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from tenant's area or common areas of the
Project, except where such loss was caused by Landlord, its agent or
employees.
34. Landlord will not permit entrance to tenant's premises by use of pass
key controlled by Landlord, to any person at any time without written
permission of tenant, except employees, contractors or service
personnel supervised or employed by Landlord.
35. Tenant and its agents, employees and invitees shall observe and comply
with the driving and parking signs and markers on the Building grounds
and surrounding areas.
36. Tenant and its employees, invitees and agents shall not enter other
separate tenants' hallways, restrooms or premises unless they have
received prior approval from Landlord's management.
************
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EXHIBIT "D"
CLEANING SPECIFICATIONS
[Attach]
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EXHIBIT "5(c)"
LETTER OF CREDIT
[Attach]
D-2
