Exhibit 10.67
LEASE AGREEMENT
THIS LEASE is executed this 26 day of April, 2004, by and between DUKE
REALTY LIMITED PARTNERSHIP, an Indiana limited partnership doing business in
North Carolina as Duke Realty of Indiana Limited Partnership ("Landlord"), and
GENAISSANCE PHARMACEUTICALS, INC., a Delaware corporation ("Tenant").
WITNESSETH:
ARTICLE 1 - LEASE OF PREMISES
SECTION 1.01. BASIC LEASE PROVISIONS AND DEFINITIONS.
(a) Leased Premises (shown outlined in EXHIBIT A hereto): Suite C of the
building (the "Building") located at 000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxx,
Xxxxx Xxxxxxxx 00000, within Perimeter Park (the "Park").
(b) Rentable Area of the Leased Premises: approximately 37,072 square
feet. Except as otherwise provided in ARTICLES 9 and 10 below, Landlord and
Tenant hereby conclusively agree that the square footage of the Rentable Area
shall be as stated herein and is not subject to dispute or re-measurement by
either party.
(c) Tenant's Proportionate Share of the Building: 67.0% (based on 37,072
rentable square feet divided by the 55,668 rentable square feet within the
Building).
(d) Minimum Annual Rent:
Year 1 $ 0.00
Year 2 $ 427,069.44
Year 3 $ 435,966.72
Year 4 $ 445,234.72
Year 5 $ 454,873.44
Year 6 $ 464,512.16
Year 7 $ 474,521.60
Year 8 $ 484,531.04
Year 9 $ 494,911.20
Year 10 $ 505,662.08
Year 11 $ 172,261.23*
* represents four (4) Monthly Rental Installments
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(e) Monthly Rental Installments:
Months 1 - 12 $ 0.00
Months 13 - 24 $ 35,589.12
Months 25 - 36 $ 36,330.56
Months 37 - 48 $ 37,102.89
Months 49 - 60 $ 37,906.12
Months 61 - 72 $ 38,709.35
Months 73 - 84 $ 39,543.47
Months 85 - 96 $ 40,377.59
Months 97 - 108 $ 41,242.60
Months 109 - 120 $ 42,138.51
Months 121 - 124 $ 43,065.31
(f) Intentionally Omitted.
(g) Target Commencement Date: October 1, 2004.
(h) Lease Term: Ten (10) years and Four (4) months.
(i) Security Deposit: $213,534.72
(j) Broker: Xxxxx & Xxxxx|Xxxxxx Xxxxxxxxx representing Tenant.
(k) Permitted Use: Genetic laboratory, general office purposes and
ancillary uses thereto including pantry and storage.
(l) Address for notices and payments are as follows:
Landlord: Duke Realty Limited Partnership
c/o Duke Realty Corporation
Attn.: Raleigh Market - Senior Property Manager
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
With Rental Duke Realty Limited Partnership
Payments to: 00 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Tenant: Genaissance Pharmaceuticals, Inc.
0 Xxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxxx 00000-0000
(m) Guarantor(s): None.
EXHIBITS
Exhibit A - Leased Premises
Exhibit B - Tenant Improvements
Exhibit B-1- Scope of Work
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Exhibit C - Rules and Regulations
Exhibit D - Letter of Understanding
Exhibit E - Tenant's Signage Specifications
Exhibit F - Form of Irrevocable Letter of Credit
Exhibit G - Form of Memorandum of Lease
SECTION 1.02. LEASE OF PREMISES. Landlord hereby leases to Tenant and
Tenant hereby leases from Landlord the Leased Premises, under the terms and
conditions herein, together with a non-exclusive right, in common with others,
to use the following (collectively, the "Common Areas"): the areas of the
Building and the underlying land and improvements thereto that are designed for
use in common by all tenants of the Building and their respective employees,
agents, customers, invitees and others.
SECTION 1.03. LANDLORD'S COVENANTS. Landlord hereby represents and
covenants with Tenant as follows:
(a) Landlord is the sole fee simple owner of the Building and the Common
Areas;
(b) Tenant shall have 24 hour access to the Leased Premises 365 days a
year, seven days per week; and
(c) As of the date hereof, no ground lease affecting the Building is
superior to this Lease.
ARTICLE 2 - TERM AND POSSESSION
SECTION 2.01. TERM. The Lease Term shall commence as of the date (the
"Commencement Date") that Substantial Completion (as defined in EXHIBIT B
hereto) of the Tenant Improvements (as defined in Section 2.02 below) occurs.
SECTION 2.02. CONSTRUCTION OF TENANT IMPROVEMENTS. Landlord shall construct
and install all leasehold improvements to the Leased Premises (collectively, the
"Tenant Improvements") in accordance with EXHIBIT B attached hereto and made a
part hereof.
SECTION 2.03. SURRENDER OF THE PREMISES.
(a) Upon the expiration or earlier termination of this Lease, Tenant shall
immediately surrender the Leased Premises to Landlord in broom-clean condition
and in good condition and repair, reasonable wear and tear and loss by casualty
or condemnation excepted. Tenant shall also remove its personal property, trade
fixtures and any of Tenant's alterations designated by Landlord (including
wiring and cabling, except as hereinafter provided), promptly repair any damage
caused by such removal, and restore the Leased Premises to the condition
existing upon the Commencement Date, reasonable wear and tear and loss by
casualty or condemnation excepted; provided, however, that Tenant shall not be
required to remove Tenant's wiring and cabling provided that such wiring and
cabling is left in good and usable condition for the next tenant's use of the
Leased Premises and legibly tagged for future use. If Tenant fails to do so,
Landlord may restore the Leased Premises to such condition at Tenant's expense,
Landlord may cause all of said property to be removed at Tenant's expense, and
Tenant hereby agrees to pay all
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the reasonable costs and expenses thereby reasonably incurred. All Tenant
property which is not removed within ten (10) days following Landlord's written
demand therefor shall be conclusively deemed to have been abandoned by Tenant,
and Landlord shall be entitled to dispose of such property at Tenant's cost
without thereby incurring any liability to Tenant. Notwithstanding anything to
the contrary contained herein, Tenant shall have no obligation to remove any
Tenant Improvements made prior to the Commencement Date. The provisions of this
section shall survive the expiration or other termination of this Lease.
(b) Without limiting anything set forth in subsection (a) above, on or
before the expiration or any earlier termination of this Lease, Tenant shall
obtain any required environmental decommissioning documentation from the State
of North Carolina.
SECTION 2.04. HOLDING OVER. If Tenant retains possession of the Leased
Premises after the expiration or earlier termination of this Lease or Tenant
fails to comply with SECTION 2.03(b) above, Tenant shall become a tenant from
month to month at one hundred fifty percent (150%) of the Monthly Rental
Installment in effect at the end of the Lease Term, and otherwise upon the
terms, covenants and conditions herein specified, so far as applicable.
Acceptance by Landlord of rent in such event shall not result in a renewal of
this Lease, and Tenant shall vacate and surrender the Leased Premises to
Landlord upon Tenant being given thirty (30) days prior written notice from
Landlord to vacate whether or not said notice is given on the rent paying date.
This SECTION 2.04 shall in no way constitute a consent by Landlord to any
holding over by Tenant upon the expiration or earlier termination of this Lease,
nor limit Landlord's remedies in such event.
ARTICLE 3 - RENT
SECTION 3.01. BASE RENT. Tenant shall pay to Landlord the Minimum Annual
Rent in the Monthly Rental Installments, in advance, without deduction or
offset, beginning on the Commencement Date and on or before the first day of
each and every calendar month thereafter during the Lease Term. The Monthly
Rental Installment for partial calendar months shall be prorated.
SECTION 3.02. ADDITIONAL RENT.
(a) In addition to the Minimum Annual Rent, Tenant shall pay to Landlord
for each calendar year included within the Lease Term, as "Additional Rent,"
Tenant's Proportionate Share of all costs and expenses incurred by Landlord
during the Lease Term for Real Estate Taxes and Operating Expenses for the
Building and Common Areas.
(b) OPERATING EXPENSES.
(i) "Operating Expenses" shall mean all of Landlord's expenses for
operation, repair, replacement and maintenance to keep the Building and Common
Areas in good order, condition and repair (including all additional direct costs
and expenses of operation and maintenance of the Building that vary based on
occupancy [i.e. cleaning] which Landlord reasonably determines it would have
paid or incurred during such year if the Building had been fully occupied),
including, but not limited to, management or administrative fees; utilities;
stormwater discharge fees; license, permit and inspection fees; fees and
assessments imposed by
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any covenants or owners' association; security services; insurance premiums and
deductibles; and maintenance, repair and replacement of the driveways, parking
areas (including snow removal), exterior lighting, landscaped areas, walkways,
curbs, storm conveyance systems, sewer lines, exterior walls, foundation,
structural frame, roof and gutters. The cost of any capital improvement shall be
amortized over the useful life of such improvement (as reasonably determined by
Landlord in accordance with generally accepted accounting principles), and only
the amortized portion shall be included in Operating Expenses. In the event that
any facilities, services or utilities used in connection with the Building are
provided from another building owned or operated by Landlord, or vice versa, the
costs incurred by Landlord in connection therewith shall be allocated to
Operating Expenses by Landlord on an equitable basis.
(ii) Notwithstanding anything contained in this Lease to the contrary,
the following costs shall be excluded from Operating Expenses:
(A) Cost attributable to improvements or work at the Building
which are part of any existing plans and specifications for
the Building but which have not yet been built (i.e.,
planting, parking lot lighting, striping, roads, etc.).
(B) Leasing costs of any type, including attorneys' fees, and
costs incurred in connection with procuring tenants or
releasing as well as retaining existing tenants.
(C) Costs incurred due to Landlord violations of any of the
terms and conditions of any leases in the Building,
including without limitation, this Lease.
(D) Salaries of Landlord's or managing agent's employees above
senior building manager and management fees in excess of
four percent (4%) of the aggregate gross rents for the
Building.
(E) Any costs related to the addition of other tenants and/or
expansion of the Building.
(F) Costs attributable to enforcing leases against tenants in
the Building, such as attorneys' fees, court costs, adverse
judgments and similar expenses.
(G) Amortization of debt.
(H) Debt service on any mortgages of the Landlord, rental under
any ground or underlying lease and charges and fees incurred
by Landlord in connection with the procurement and recording
of any such mortgage or ground or underlying lease.
(I) Auditors' fees (except for accountant's fees incurred in
connection with the preparation of statements of Operating
Expenses for the Building in the normal course and not in
connection with disputes).
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(J) Any costs, fines or penalties incurred to the extent due to
a violation by Landlord or any tenant or occupant of the
Building of any laws, rules or regulations to the extent not
the responsibility of Tenant, or of any of the terms and
conditions of this Lease or any other lease, obligation or
agreement relating to the Building, or costs incurred due to
the negligence or willful misconduct of Landlord or
Landlord's employees, agents or contractors.
(K) Repairs and other work occasioned by fire or other casualty
to the extent in excess of $100,000.
(L) Expenses for vacant or vacated space, including without
limitation utility, security and renovation costs.
(M) All items and services for which Tenant reimburses Landlord
under other provisions of this Lease (or pays to third
parties on behalf of Landlord).
(N) To the extent that any employee of Landlord performs work or
services for another property owned or operated by Landlord
or managing agent, the reasonably allocated portion of such
employee's compensation with respect to work not performed
in connection with the Building.
(O) Expenses incurred in connection with special or unusual
services or other benefits of the type that are provided to
some, but not all tenants of the Building.
(P) Rent or other payments due on any lease(s) or other
document(s) through which Landlord's title or interest in
the Property is derived.
(Q) Any costs, fines or penalties incurred to the extent due to
a violation by Landlord of any governmental rule or
authority and the defense of same.
(R) Costs of removal, abatement or treatment of asbestos or any
other Hazardous Substances present in the Building or in the
Common Areas as of the date of this Lease and which are
required to be removed or otherwise dealt with by Landlord
pursuant to applicable laws and/or requirements of
governmental authorities in effect as of the date of this
Lease.
(S) Repairs and other work occasioned by condemnation to the
extent Landlord is reimbursed by condemnation award.
(c) "Real Estate Taxes" shall include any form of real estate tax or
assessment or service payments in lieu thereof, and any license fee (excluding
any environmental or brokerage
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license fee), commercial rental tax, improvement bond or other similar charge or
tax (other than inheritance, income, franchise, conveyance, capital gains,
stock, gift, use or estate tax) imposed upon the Building or Common Areas (or
against Landlord's business of leasing the Building) by any authority having the
power to so charge or tax, together with costs and expenses of contesting the
validity or amount of Real Estate Taxes but in no event shall fees exceed
thirty-three percent (33%) of the good faith estimated tax savings).
Additionally, Tenant shall pay, prior to delinquency, all taxes assessed against
and levied upon its trade fixtures, furnishings, equipment and all personal
property of Tenant contained in the Leased Premises.
SECTION 3.03. PAYMENT OF ADDITIONAL RENT. Landlord shall estimate the total
amount of Additional Rent to be paid by Tenant during each calendar year of the
Lease Term, pro-rated for any partial years. After the first twelve (12) months
of the Lease Term, Tenant shall pay to Landlord each month, at the same time the
Monthly Rental Installment is due, unless otherwise agreed to, an amount equal
to one-twelfth (1/12) of the estimated Additional Rent for such year. Within a
reasonable time after the end of each calendar year, Landlord shall submit to
Tenant a statement of the actual amount of such Additional Rent and within
thirty (30) days after receipt of such statement, Tenant shall pay any
deficiency between the actual amount owed and the estimates paid during such
calendar year. In the event of overpayment, Landlord shall credit the amount of
such overpayment toward the next installments of Minimum Rent, and in the last
year of the Lease Term shall refund to Tenant any overpayment.
SECTION 3.04. LATE CHARGES. Tenant acknowledges that Landlord shall incur
certain additional unanticipated administrative and legal costs and expenses if
Tenant fails to timely pay any payment required hereunder. Therefore, in
addition to the other remedies available to Landlord hereunder, if any payment
required to be paid by Tenant to Landlord hereunder shall become overdue, such
unpaid amount shall bear interest from the due date thereof to the date of
payment at the prime rate (as reported in the WALL STREET JOURNAL) of interest
("Prime Rate") plus three percent (3%) per annum.
SECTION 3.05. AUDIT RIGHT.
(a) Landlord shall maintain accounting books and records reflecting the
Operating Expenses and Real Estate Taxes of the Building substantially in
accordance with generally acceptable accounting principals ("GAAP") and sound
accounting and management practices. Within ninety (90) days after receipt by
Tenant of Landlord's statement of actual Operating Expenses and Real Estate
Taxes incurred for the prior year, Tenant and Tenant's agents and accountants
shall have the right to inspect and audit Landlord's books and records relating
to Operating Expenses and Real Estate Taxes for the Building (the "Records"), at
Landlord's office, during normal business hours upon fifteen (15) days' prior
written notice.
(b) If Tenant, after having a reasonable opportunity to examine the
Records, disagrees with Landlord's statement, then Tenant may send a written
notice to Landlord (the "Dispute Notice"), specifying in reasonable detail the
basis for Tenant's disagreement, the amount of the Additional Rent that Tenant
claims was due for the applicable calendar year and the amount of any refund
claimed to be due Tenant. Anything herein to the contrary notwithstanding,
Tenant shall not delay or withhold payment of any balance shown to be due
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pursuant to Landlord's statement because of any objection that Tenant may raise
with respect thereto.
(c) If Landlord agrees with the Dispute Notice, the parties shall enter
into a written agreement confirming such error and then Tenant shall be entitled
to a credit against future Minimum Annual Rent for said overpayment (or a refund
of any overpayment if the Lease Term has expired) or Tenant shall pay to
Landlord the amount of any underpayment, as the case may be.
(d) If Landlord disagrees with the Dispute Notice, Landlord shall notify
Tenant of such disagreement within forty-five (45) days following Landlord's
receipt of the Dispute Notice, and thereafter Landlord and Tenant shall use good
faith efforts to try to resolve the issue. Notwithstanding the foregoing,
however, if Landlord and Tenant fail to resolve the issue within thirty (30)
days after Landlord's delivery of Landlord's notice of objection, and the
disagreement involves more than $10,000.00, either party may, by delivery of
written notice to the other party (the "Operating Expenses Arbitration Notice"),
elect to resolve the issue through arbitration.
(e) If either party delivers an Operating Expenses Arbitration Notice,
then Landlord and Tenant shall use commercially reasonable efforts to select an
arbitrator to resolve the issue. Such arbitrator shall be an accountant,
unaffiliated with Landlord or Tenant, specializing in real estate matters, with
at least ten (10) years prior experience in the metropolitan area in which the
Leased Premises are located and with a working knowledge of current operating
expense pass-through practices. The determination of such arbitrator shall be
binding on both Landlord and Tenant as to the amount of Real Estate Taxes and
Operating Expenses for the applicable calendar year.
(f) If, following the determination of Tenant's Proportionate Share of
Real Estate Taxes and Operating Expenses pursuant to this SECTION 3.05,
Landlord's calculation of Tenant's Proportionate Share of Real Estate Taxes and
Operating Expenses for the inspected calendar year resulted in an overpayment by
more than five percent (5%) of Tenant's Proportionate Share of Real Estate Taxes
and Operating Expenses, Landlord shall also pay the reasonable fees and expenses
of Tenant's independent professionals, if any, conducting said inspection, as
well as the costs of the arbitrator, if applicable. Otherwise, Tenant shall pay
all costs of Tenant's independent professionals and the costs of the arbitrator,
if applicable.
(g) All of the information obtained through Tenant's inspection with
respect to financial matters (including, without limitation, costs, expenses and
income) and any other matters pertaining to Landlord, the Leased Premises, the
Building and/or the Park as well as any compromise, settlement or adjustment
reached between Landlord and Tenant relative to the results of the inspection
shall be held in strict confidence by Tenant and its officers, agents, and
employees; and Tenant shall cause its independent professionals to be similarly
bound. The obligations within the preceding sentence shall survive the
expiration or earlier termination of the Lease.
SECTION 3.06. CAP ON CONTROLLABLE EXPENSES. Notwithstanding anything in
this Lease to the contrary, Tenant will be responsible for Tenant's
Proportionate Share of Real Estate Taxes, insurance premiums, utilities, snow
removal, landscaping and charges assessed against or
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attributed to the Building pursuant to any applicable declaration of protective
covenants ("Uncontrollable Expenses"), without regard to the level of increase
in any or all of the above in any year or other period of time. Tenant's
obligation to pay all other Operating Expenses that are not Uncontrollable
Expenses (herein "Controllable Expenses") shall be limited to a six percent (6%)
per annum increase over the amount the Controllable Expenses for the immediately
preceding calendar year would have been had the Controllable Expenses increased
at the rate of six percent (6%) in all previous calendar years beginning with
the actual Controllable Expenses for the year ending December 31, 2004.
ARTICLE 4 - SECURITY DEPOSIT
Upon Tenant's execution of this Lease, Tenant will deliver to Landlord an
Irrevocable Letter of Credit (the "Letter of Credit") in the amount of the
Security Deposit, in substantially the form attached hereto as EXHIBIT F and
made a part hereof from a financial institution acceptable to Landlord. Tenant
shall cause the Letter of Credit to be maintained in full force and effect
throughout the Lease Term and during the forty-five (45) day period after the
later of (a) the expiration of the Lease Term or (b) the date that Tenant
delivers possession of the Leased Premises to Landlord, as security for the
performance by Tenant of all of Tenant's obligations contained in this Lease. In
the event that, during the Lease Term, Tenant fails to deliver to Landlord a
renewal or replacement to the Letter of Credit by a date no later than
forty-five (45) days prior to its expiration date, Landlord shall have the right
to demand and receive payment in full under the letter of credit and to hold the
cash proceeds as the Security Deposit under this Lease. In the event of a
default by Tenant Landlord may apply all or any part of the Security Deposit to
cure all or any part of such default; and Tenant agrees to promptly, upon
demand, deposit such additional sum with Landlord as may be required to maintain
the full amount of the Security Deposit. All sums held by Landlord pursuant to
this section shall be without interest. Within forty-five (45) days following
the end of the Lease Term, Landlord shall return the Security Deposit to Tenant
by surrendering the Letter of Credit and any cash then constituting the Security
Deposit, less any amounts retained by Landlord to cure any default of Tenant
hereunder.
ARTICLE 5 - USE
SECTION 5.01. USE OF LEASED PREMISES. The Leased Premises are to be used by
Tenant solely for the Permitted Use and for no other purposes without the prior
written consent of Landlord.
SECTION 5.02. COVENANTS OF TENANT REGARDING USE. Tenant shall (i) use and
maintain the Leased Premises and conduct its business thereon in a safe,
careful, and lawful manner, (ii) comply with all laws, rules, regulations,
orders, ordinances, directions and requirements of any governmental authority or
agency, now in force or which may hereafter be in force, including without
limitation those which shall impose upon Landlord or Tenant any duty with
respect to or triggered by a change in the use or occupation of, or any
improvement or alteration to, the Leased Premises, and (iii) comply with and
obey the Building rules and regulations attached hereto as EXHIBIT C and made a
part hereof, as such may be modified by Landlord from time to time provided that
Tenant receives prior written notice. Tenant shall not do or permit anything to
be done in or about the Leased Premises or Common Areas which constitutes a
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nuisance or which interferes with the rights of other tenants or injures or
annoys them. Landlord shall not be responsible to Tenant for the nonperformance
by any other tenant or occupant of the Building of its lease or of any rules and
regulations, provided however (x) Landlord shall enforce all leases and rules
and regulations uniformly against all of the tenants of the Building, and (y)
Landlord agrees to take reasonable measures to assure such other tenant's
compliance with such rules and regulations to the extent such tenant's
noncompliance interferes with Tenant's quiet enjoyment of the Leased Premises.
Tenant shall not overload the floors of the Leased Premises beyond their
designed weight bearing capacity, which Landlord has determined to be 750 pounds
per square foot. All damage to the floor structure or foundation of the Building
due to improper positioning or storage of items or materials shall be repaired
by Landlord at the sole expense of Tenant, who shall reimburse Landlord
immediately therefor upon demand. Tenant shall not use the Leased Premises, or
allow the Leased Premises to be used, for any purpose or in any manner which
would invalidate any policy of insurance now or hereafter carried on the
Building or increase the rate of premiums payable on any such insurance policy
unless Tenant reimburses Landlord as Additional Rent for any increase in
premiums charged.
SECTION 5.03. LANDLORD'S RIGHTS REGARDING USE. In addition to the rights
specified elsewhere in this Lease, Landlord shall have the following rights
regarding the use of the Leased Premises or the Common Areas, each of which may
be exercised without notice (except as hereinafter provided) or liability to
Tenant (except in the case of the negligence or willful misconduct of Landlord,
its agents, employees or contractors not otherwise waived pursuant to SECTION
8.06 below): (a) Landlord may install such signs, advertisements, notices or
tenant identification information as it shall deem necessary or proper; (b)
Landlord shall have the right at any time to control, change or otherwise alter
the Common Areas as it shall deem necessary or proper; and (c) Landlord or
Landlord's agent shall be permitted to inspect or examine the Leased Premises at
any reasonable time upon reasonable prior notice (except in an emergency when no
notice shall be required), and Landlord shall have the right to make any repairs
to the Leased Premises which are necessary for its preservation; provided,
however, that any such repairs made by Landlord shall be at Tenant's expense,
except as provided in SECTION 7.02 hereof. Except as otherwise expressly
provided herein, Landlord shall incur no liability to Tenant for such entry, nor
shall such entry constitute an eviction of Tenant or a termination of this
Lease, or entitle Tenant to any abatement of rent therefor.
SECTION 5.04. INTERFERENCE WITH USE OF THE LEASED PREMISES. Without
limiting anything set forth in SECTION 5.03 above, if, as a result of Landlord's
negligence or willful misconduct in exercising its rights pursuant to SECTION
5.03 above or SECTION 15.05 below, the Leased Premises (or portion thereof) is
untenantable for a period of more than five (5) consecutive business days,
Minimum Annual Rent and Tenant's obligation to pay its Proportionate Share of
Real Estate Taxes and Operating Expenses shall xxxxx for each such consecutive
day after said five (5) business day period that such area of the Leased
Premises is so rendered until such area is no longer untenantable. Provided,
however, to the extent that the Leased Premises, or portion thereof, is
untenantable as a result of the negligence or willful misconduct of Tenant, its
agents, employees, contractors, subtenants, invitees or assignees, or Tenant's
default in its obligations under this Lease, Tenant shall not be entitled to
abatement under this SECTION 5.04. The Leased Premises shall be considered
untenantable to the extent that Tenant does not use the Leased Premises or
portion thereof as a result of Landlord's activities. It is agreed and
understood that Tenant shall not use nor be entitled to use the portion of the
Leased Premises during any day for
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which Landlord is obligated to xxxxx Minimum Annual Rent hereunder. Except as
otherwise set forth in SECTION 13.03, the abatement herein provided shall be
Tenant's sole and exclusive remedy in the event the Leased Premises is
untenantable as a result of Landlord's activities pursuant to SECTION 5.03
above.
SECTION 5.05. COMPLIANCE WITH LAW.
(a) EXISTING GOVERNMENTAL REGULATIONS. If any federal, state or local
laws, ordinances, orders, rules, regulations or requirements (collectively,
"Governmental Requirements") in existence as of the date of the Lease require an
alteration or modification of the Leased Premises (a "Code Modification") and
such Code Modification (i) is not made necessary as a result of the specific use
being made by Tenant of the Leased Premises (as distinguished from an alteration
or improvement which would be required to be made by the owner of any warehouse,
laboratory or office building comparable to the Building irrespective of the use
thereof by any particular occupant), and (ii) is not made necessary as a result
of any alteration of the Leased Premises by Tenant, such Code Modification shall
be performed by Landlord, at Landlord's sole cost and expense.
(b) GOVERNMENTAL REGULATIONS - LANDLORD RESPONSIBILITY. If, as a result of
one or more Governmental Requirements that are not in existence as of the date
of this Lease, it is necessary from time to time during the Lease Term, to
perform a Code Modification to the Building or the Common Areas that (i) is not
made necessary as a result of the specific use being made by Tenant of Leased
Premises (as distinguished from an alteration or improvement which would be
required to be made by the owner of any warehouse-office building comparable to
the Building irrespective of the use thereof by any particular occupant), and
(ii) is not made necessary as a result of any alteration of the Leased Premises
by Tenant, such Code Modification shall be performed by Landlord and cost
thereof shall be included in Operating Expenses without being subject to any
applicable cap on expenses set forth herein.
(c) GOVERNMENTAL REGULATIONS - TENANT RESPONSIBILITY. If, as a result of
one or more Governmental Requirements, it is necessary from time to time during
the Lease Term to perform a Code Modification to the Building or the Common
Areas that is made necessary as a result of the specific use being made by
Tenant of the Leased Premises or as a result of any alteration of the Leased
Premises by Tenant, such Code Modification shall be the sole and exclusive
responsibility of Tenant in all respects; provided, however, that Tenant shall
have the right to retract its request to perform a proposed alteration in the
event that the performance of such alteration would trigger the requirement for
a Code Modification.
ARTICLE 6 - UTILITIES AND SERVICES
To the extent, utilities are separately metered to include only the Leased
Premises, Tenant shall obtain in its own name and pay directly to the
appropriate supplier the cost of all utilities and services serving the Leased
Premises, including janitorial services. However, if any services or utilities
are jointly metered with other property, Landlord, on a monthly basis, shall
make a reasonable and equitable determination of Tenant's proportionate share of
the cost of such utilities and services (at rates that would have been payable
if such utilities and services had been directly billed by the utilities or
services providers to Tenant) and Tenant shall pay such share to
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Landlord within fifteen (15) days after receipt of Landlord's written statement.
Except as expressly provided herein, Landlord shall not be liable in damages or
otherwise for any failure or interruption of any utility or other building
service and no such failure or interruption shall entitle Tenant to terminate
this Lease or withhold sums due hereunder. In the event of utility
"deregulation", Landlord may choose the service provider. In the event Landlord
is responsible for an interruption in the supply of utilities as provided
herein, and such interruption of service renders the Leased Premises or any
portion of the Leased Premises untenantable for more than five (5) consecutive
business days after Landlord receives written notice from Tenant of such
interruption of service, Tenant shall be entitled to an abatement of Minimum
Annual Rent and Tenant's obligation to pay its Proportionate Share of Real
Estate Taxes and Operating Expenses with respect to the area which is affected
for each day after the fifth (5th) business day that such area of the Leased
Premises is so rendered until such service is restored. Provided, however, to
the extent that such interruption is caused or continues as a result of the
negligence or willful misconduct of Tenant, its agents, employees, contractors,
subtenants, invitees or assignees, Tenant shall not be entitled to any abatement
hereunder. The Leased Premises shall be considered untenantable if Tenant does
not use the Leased Premises or portion thereof affected in the conduct of its
normal business operations as a result of said interruption of service to the
Leased Premises. It is agreed and understood that Tenant shall not use nor be
entitled to use the portion of the Leased Premises affected by such interruption
to conduct its normal business operations during any day for which Landlord is
obligated to xxxxx rent hereunder. The abatement herein provided shall be
Tenant's sole and exclusive remedy for interruption of service. Landlord agrees
to use its reasonable efforts to restore such utility service as soon as
possible.
ARTICLE 7 - MAINTENANCE AND REPAIRS
SECTION 7.01. TENANT'S RESPONSIBILITY. During the Lease Term, Tenant shall,
at its own cost and expense, maintain the Leased Premises in good condition,
including interior janitorial services, regularly servicing and promptly making
all repairs and replacements thereto, including but not limited to (a) the
heating, ventilating and air conditioning systems, whether located inside or
outside of the Leased Premises, but only to the extent exclusively serving the
Leased Premises, (b) the electrical systems (including light bulb replacement)
and plumbing systems located within the Leased Premises, and (b) the plate
glass, floors, windows and doors. Without limiting the foregoing, Tenant shall
obtain a preventive maintenance contract on the heating, ventilating and
air-conditioning systems, and provide Landlord with a copy thereof. The
preventive maintenance contract shall meet or exceed Landlord's standard
maintenance criteria, and shall provide for the inspection and maintenance of
the heating, ventilating and air conditioning system on not less than a
semi-annual basis. Landlord shall pass through to Tenant the benefit of any
heating, ventilating and air conditioning systems warranties held by Landlord
with respect to the Leased Premises.
SECTION 7.02. LANDLORD'S RESPONSIBILITY. During the Lease Term, Landlord
shall maintain in good condition and repair, and replace as necessary (a) the
roof, exterior walls, foundation and structural frame of the Building, (b) all
Building systems located outside the Leased Premises, including, without
limitation, the electrical, plumbing and any mechanical systems, (c) all
Building-standard sprinklers and Building-standard life safety systems (whether
located inside or outside of the Leased Premises), but excluding any (i)
non-Building standard
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INDUSTRIAL LEASE
sprinklers or life safety systems to the extent exclusively serving the Leased
Premises, or (ii) fiber optic and telephone lines to the extent exclusively
serving the Leased Premises, all of which excluded items shall be maintained by
Tenant, and (d) the parking and landscaped areas. The costs of all maintenance,
repair and replacement performed by or on behalf of Landlord pursuant to this
SECTION 7.02 shall be included in Operating Expenses to the extent provided in
SECTION 3.02; provided, however, that to the extent any of the foregoing items
require repair because of the negligence, misuse, or default of Tenant, its
employees, agents, customers or invitees, Landlord shall make such repairs
solely at Tenant's expense.
SECTION 7.03. ALTERATIONS. Tenant shall not permit alterations in or to the
Leased Premises unless and until the plans have been approved by Landlord in
writing, which approval shall not be unreasonably withheld or delayed. As a
condition of such approval, Landlord may in writing, as part of such approval,
require Tenant to remove the alterations and restore the Leased Premises upon
termination of this Lease; otherwise, all such alterations shall become a part
of the realty and the property of Landlord, and shall not be removed by Tenant.
All alterations shall be made in accordance with all applicable laws,
regulations and building codes, in a good and workmanlike manner and using
materials of quality equal to or better than the original construction of the
Building. No person shall be entitled to any lien derived through or under
Tenant for any labor or material furnished to the Leased Premises, and nothing
in this Lease shall be construed to constitute a consent by Landlord to the
creation of any lien. If any lien is filed against the Leased Premises for work
claimed to have been done for or material claimed to have been furnished to
Tenant (except in connection with the initial Tenant Improvements), Tenant shall
cause such lien to be bonded or discharged of record within thirty (30) days
after notice thereof to Tenant.
SECTION 7.04. PERMITTED ALTERATIONS. Notwithstanding the foregoing,
Landlord's consent to alterations to the Leased Premises shall not be required
if such alterations (a) are non-structural in nature, (b) do not affect the
Building systems, (c) do not require Tenant to obtain a building permit, (d) do
not exceed Ten Thousand and 00/100 Dollars ($10,000.00) in cost in any one
instance and One Hundred Thousand Dollars ($100,000.00) in cost in the aggregate
during the Lease Term (except to the extent that such alterations consist of
repainting or replacing the wallcovering or carpet, in which case the thresholds
set forth in this subsection (d) shall not apply), and (e) Tenant provides
Landlord prior written notice of its intention to make such alterations stating
in reasonable detail the nature, extent and estimated cost of such alterations
together with the plans and specifications for the same, if applicable.
SECTION 7.05. SIGNAGE. Landlord, at its expense, shall provide building
standard signage for Tenant on the door to the Leased Premises at ground level
immediately in front of the reception area and at the top of the Building on the
Building's facade facing the street. In addition, Landlord shall provide, at
Landlord's expense, directional signage in front of the xxxxx tree located
outside of the Building near Tenant's reception area, the precise location of
which directional signage shall be mutually agreed upon by Landlord and Tenant.
All such signage shall include Tenant's name and logo. The location, materials,
color and style, however, shall be subject to Landlord's review and approval.
Landlord hereby approves the specifications for the sign at the top of the
Building, which specifications are attached hereto and made a part hereof as
EXHIBIT E.
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ARTICLE 8 - INDEMNITY AND INSURANCE
SECTION 8.01. RELEASE. All of Tenant's trade fixtures, merchandise,
inventory and all other personal property in or about the Leased Premises, the
Building or the Common Areas, which is deemed to include the trade fixtures,
merchandise, inventory and personal property of others located in or about the
Leased Premises or Common Areas at the invitation, direction or acquiescence
(express or implied) of Tenant (all of which property shall be referred to
herein, collectively, as "Tenant's Property"), shall be and remain at Tenant's
sole risk, except as hereinafter expressly provided. Landlord shall not be
liable to Tenant or to any other person for, and Tenant hereby releases Landlord
from (a) any and all liability for theft or damage to Tenant's Property, and (b)
any and all liability for any injury to Tenant or its employees, agents,
contractors, guests and invitees in or about the Leased Premises, the Building
or the Common Areas, except to the extent caused by the negligence or willful
misconduct of Landlord, its agents, employees or contractors. Nothing contained
in this SECTION 8.01 shall limit (or be deemed to limit) the waivers contained
in SECTION 8.06 below. In the event of any conflict between the provisions of
SECTION 8.06 below and this SECTION 8.01, the provisions of SECTION 8.06 shall
prevail. This SECTION 8.01 shall survive the expiration or earlier termination
of this Lease.
SECTION 8.02. INDEMNIFICATION BY TENANT. Tenant shall protect, defend,
indemnify and hold Landlord, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses, and expenses (including reasonable attorneys' fees and expenses at the
trial and appellate levels) to the extent (a) arising out of or relating to any
act, omission, negligence, or willful misconduct of Tenant or Tenant's agents,
employees, contractors, or invitees in or about the Leased Premises, the
Building or the Common Areas, (b) arising out of or relating to any of Tenant's
Property, or (c) arising out of any other act or occurrence within the Leased
Premises, in all such cases (a), (b) and (c), except to the extent caused by the
negligence or willful misconduct of Landlord, its agents, employees or
contractors. In addition, and without limiting the foregoing, Tenant shall
indemnify Landlord from all costs, losses, expenses and attorneys' fees in
connection with any construction or alteration in or about the Leased Premises
pursuant to SECTION 7.03 above (but excluding any construction or alteration
pursuant to EXHIBIT B hereto) and any related lien. Nothing contained in this
SECTION 8.02 shall limit (or be deemed to limit) the waivers contained in
SECTION 8.06 below. In the event of any conflict between the provisions of
SECTION 8.06 below and this SECTION 8.02, the provisions of SECTION 8.06 shall
prevail. This SECTION 8.02 shall survive the expiration or earlier termination
of this Lease.
SECTION 8.03. INDEMNIFICATION BY LANDLORD. Landlord shall protect, defend,
indemnify and hold Tenant, its agents, employees and contractors harmless from
and against any and all claims, damages, demands, penalties, costs, liabilities,
losses and expenses (including reasonable attorneys' fees and expenses at the
trial and appellate levels) to the extent arising out of or relating to any act,
omission, negligence or willful misconduct of Landlord or Landlord's agents,
employees or contractors. Nothing contained in this SECTION 8.03 shall limit (or
be deemed to limit) the waivers contained in SECTION 8.06 below. In the event of
any conflict between the provisions of SECTION 8.06 below and this SECTION 8.03,
the provisions of SECTION 8.06 shall prevail. This SECTION 8.03 shall survive
the expiration or earlier termination of this Lease.
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INDUSTRIAL LEASE
SECTION 8.04. TENANT'S INSURANCE.
(a) During the Lease Term (and any period of early entry or occupancy or
holding over by Tenant, if applicable), Tenant shall maintain the following
types of insurance, in the amounts specified below:
(i) LIABILITY INSURANCE. Commercial General Liability Insurance
(which insurance shall not exclude blanket contractual liability, broad form
property damage, bodily injury, or fire damage coverage) covering the Leased
Premises and Tenant's use thereof against claims for bodily injury or death and
property damage, which insurance shall provide coverage on an occurrence basis
with a combined single limit of not less than $3,000,000 per occurrence, and
with general aggregate limits of not less than $7,000,000 for each policy year,
which limits may be satisfied by any combination of primary and excess or
umbrella per occurrence policies.
(ii) CASUALTY INSURANCE. Special Form Insurance (which insurance
shall not exclude flood or earthquake) in the amount of the full replacement
cost of Tenant's Property and betterments (including alterations or additions
performed by Tenant pursuant hereto, but excluding those improvements, if any,
made pursuant to SECTION 2.02 above), which insurance shall include an agreed
amount endorsement waiving coinsurance limitations.
(iii) WORKER'S COMPENSATION INSURANCE. Worker's Compensation
insurance in amounts required by applicable law.
(b) All insurance required by Tenant hereunder shall (i) be issued by one
or more insurance companies reasonably acceptable to Landlord, licensed to do
business in the State in which the Leased Premises is located and having an AM
Best's rating of A IX or better, and (ii) provide that said insurance shall not
be materially changed, canceled or permitted to lapse on less than thirty (30)
days' prior written notice to Landlord. In addition, Tenant's insurance shall
protect Tenant and Landlord as their interests may appear, naming Landlord,
Landlord's managing agent, and any mortgagee requested by Landlord, as
additional insureds under its commercial general liability policies, provided
that Landlord notifies Tenant in writing of the name and address of Landlord's
managing agent and Landlord's mortgagee. On or before the Commencement Date (or
the date of any earlier entry or occupancy by Tenant), and thereafter, within
thirty (30) days prior to the expiration of each such policy, Tenant shall
furnish Landlord with certificates of insurance in the form of XXXXX 27 (or,
alternatively, in the form of XXXXX 25 with all non-reliance language stricken),
evidencing all required coverages, together with a copy of the endorsements to
Tenant's commercial general liability policies naming the appropriate additional
insureds. Upon Tenant's receipt of a request from Landlord, Tenant shall provide
Landlord with copies of all insurance policies, including all endorsements,
evidencing the coverages required hereunder. If Tenant fails to carry such
insurance and furnish Landlord with such certificates of insurance or copies of
insurance policies (if applicable), Landlord, after written notice to Tenant,
may obtain such insurance on Tenant's behalf and Tenant shall reimburse Landlord
upon demand for the cost thereof as Additional Rent. If Tenant elects not to
carry business interruption insurance, Tenant releases Landlord from any and all
liability arising during the Lease Term which would have been covered by
business interruption insurance had Tenant carried such insurance.
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INDUSTRIAL LEASE
SECTION 8.05. LANDLORD'S INSURANCE. During the Lease Term, Landlord shall
maintain the following types of insurance, in the amounts specified below (the
premiums for which shall be included in Operating Expenses):
(a) LIABILITY INSURANCE. Commercial General Liability Insurance (which
insurance shall not exclude blanket, contractual liability, broad form property
damage, bodily injury, or fire damage coverage) covering the Building and the
Common Areas against claims for bodily injury or death and property damage,
which insurance shall provide coverage on an occurrence basis with a combined
single limit of not less than $3,000,000 per occurrence, and with general
aggregate limits of not less than $7,000,000 for each policy year, which limits
may be satisfied by any combination of primary and excess or umbrella per
occurrence policies.
(b) CASUALTY INSURANCE. Special Form Insurance (which insurance shall not
exclude flood or earthquake) in the amount of the full replacement cost of the
Building, including, without limitation, any improvements, if any, made pursuant
to SECTION 2.02 above, but excluding Tenant's Property and any other items
required to be insured by Tenant pursuant to SECTION 8.04 (ii) above.
SECTION 8.06. WAIVER OF SUBROGATION. Notwithstanding anything contained in
this Lease to the contrary, Landlord and Tenant hereby waive any rights each may
have against the other on account of any loss of or damage to their respective
property, the Leased Premises, its contents, or other portions of the Building
or Common Areas arising from any risk which is required to be insured against by
SECTIONS 8.04(a)(ii) and 8.05(b) above. The special form coverage insurance
policies maintained by Landlord and Tenant as provided in this Lease shall
include an endorsement containing an express waiver of any rights of subrogation
by the insurance company against Landlord and Tenant, as applicable.
ARTICLE 9 - CASUALTY
In the event of total or partial destruction of the Building or the Leased
Premises by fire or other casualty, Landlord agrees promptly to restore and
repair same; provided, however, Landlord's obligation hereunder with respect to
the Leased Premises shall be limited to the reconstruction of the Tenant
Improvements as were originally required to be made by Landlord pursuant to
SECTION 2.02 above, if any. Notwithstanding anything to the contrary contained
herein, rent shall proportionately xxxxx during the time that the Leased
Premises or part thereof are unusable because of any such damage.
Notwithstanding the foregoing, if Landlord determines that the Leased Premises
and/or access thereto are (a) so destroyed that Landlord (or Landlord's
architect, if applicable) estimates that they cannot be repaired or rebuilt or
within two hundred ten (210) days from the casualty date; or (b) destroyed by a
casualty that is not covered in any amount by the insurance required hereunder
or, if covered, such insurance proceeds are not released by any mortgagee
entitled thereto or, excluding Landlord's deductible or self-insured retention
amounts, are insufficient to rebuild the Building and the Leased Premises; then
Landlord shall give written notice to Tenant of such determination (the
"Casualty Notice") within sixty (60) days of such casualty. Either Landlord or
Tenant may terminate this Lease with respect to matters thereafter accruing by
giving written notice to the other party within thirty (30) days after
Landlord's delivery of the Casualty Notice. Notwithstanding the aforesaid 60-day
period, Landlord shall use reasonable efforts to notify Tenant of the estimated
time that will
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INDUSTRIAL LEASE
be required to repair or rebuild the Leased Premises within forty-five (45) days
following the casualty event. Tenant waives any right under applicable laws
inconsistent with the terms of this paragraph. Notwithstanding the provisions of
this paragraph, if any such damage or destruction occurs within the final twelve
(12) months of the term hereof, then either Landlord or Tenant, in their
respective sole discretion, may, without regard to the aforesaid two hundred ten
(210) day period, terminate this Lease by written notice to the other, such
notice to be given within thirty (30) days following a casualty.
ARTICLE 10 - EMINENT DOMAIN
If all or any substantial part of the Building or Common Areas shall be
acquired by the exercise of eminent domain, Landlord may terminate this Lease by
giving written notice to Tenant on or before the date that actual possession
thereof is so taken. If all or any part of the Leased Premises shall be acquired
by the exercise of eminent domain so that the Leased Premises or access thereto
shall become unusable by Tenant for the Permitted Use, Tenant may terminate this
Lease as of the date that actual possession thereof is so taken by giving
written notice to Landlord. All damages awarded shall belong to Landlord;
provided, however, that Tenant may claim dislocation damages if such amount is
not subtracted from Landlord's award. In the event the Lease is terminated
pursuant to this ARTICLE 10, neither Landlord nor Tenant shall have any further
obligations hereunder except for (a) those obligations that accrue prior to said
termination, and (b) those obligations that expressly survive the expiration or
any earlier termination of this Lease (including, without limitation, Landlord's
obligation to return the Letter of Credit pursuant to ARTICLE 4 above).
ARTICLE 11 - ASSIGNMENT AND SUBLEASE
SECTION 11.01. REQUIREMENTS. Tenant shall not assign this Lease or sublet
the Leased Premises in whole or in part without Landlord's prior written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned. In the event of any assignment or subletting, Tenant shall remain
primarily liable hereunder. The acceptance of rent from any other person shall
not be deemed to be a waiver of any of the provisions of this Lease or to be a
consent to the assignment of this Lease or the subletting of the Leased
Premises. Without in any way limiting Landlord's right to refuse to consent to
any assignment or subletting of this Lease, Landlord reserves the right to
refuse to give such consent if in Landlord's commercially reasonable opinion (i)
the use of the Leased Premises proposed by the proposed assignee or subtenant
does not fall within the definition of the Permitted Use; (ii) Landlord has a
reasonable basis to believe that the business reputation of the proposed
assignee or subtenant is unacceptable (e.g. the proposed assignee or subtenant
is engaged in, or intends to engage in, activities lacking moral turpitude or
other illicit activities, or the proposed assignee or sublessee has had a
previous business relationship with Landlord that resulted in litigation); (iii)
the financial worth of the proposed assignee or subtenant is insufficient to
meet the obligations under the proposed assignment or sublease; or (iv) if the
prospective assignee or subtenant is a third party that is already a tenant in
the Building or the Park, Landlord has space available to meet such tenant's
needs, and Landlord has either given a proposal to, or received a proposal from,
such tenant for the lease of space within the previous ninety (90) day period.
Tenant hereby agrees that in marketing the Leased Premises for sublease or
assignment, it will not publicly advertise the Leased Premises for a proposed
rent that is less than the then current rent for similar premises in
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INDUSTRIAL LEASE
the Park. In the event that Tenant sublets the Leased Premises or any part
thereof, or assigns this Lease and at any time receives rent and/or other
consideration for the lease of the Leased Premises, but not for sale of any of
Tenant's Property, which exceeds that which Tenant would at that time be
obligated to pay to Landlord, Tenant shall pay to Landlord (x) fifty percent
(50%) of the gross excess of such rent and/or other consideration less
reasonable costs incurred by Tenant in connection therewith (including
commissions, advertising costs, legal costs, tenant improvement costs and the
cost of subtenant or assignee concessions) as such rent and/or other
consideration is received by Tenant. In addition, should Landlord agree to an
assignment or sub
lease agreement, Tenant will pay to Landlord on demand the sum
of $500.00 to partially reimburse Landlord for its costs, including reasonable
attorneys' fees, incurred in connection with processing such assignment or
subletting request.
SECTION 11.02. ADVERTISING. Notwithstanding any provision of this Lease to
the contrary, Tenant shall not use the name of Landlord, any insignia of
Landlord, or any likeness of the Building without Landlord's consent (not to be
unreasonably withheld) in any of its advertising for such sublease or
assignment.
SECTION 11.03. PERMITTED TRANSFERS. Notwithstanding anything to the
contrary contained in SECTION 11.01 above, Tenant shall have the right, without
Landlord's consent, to (a) sublet all or part of the Leased Premises or assign
all or any part of this Lease to any related corporation or other entity which
controls Tenant, is controlled by Tenant or is under common control with Tenant,
or to a successor entity into which or with which Tenant is merged or
consolidated or which acquires substantially all of Tenant's assets or property;
or (b) effectuate any public offering or other sale or trading of Tenant's stock
through the "over the counter market" or through any U.S. or foreign recognized
stock exchange, regardless of whether same results in a change in control of
Tenant, provided that in the event of a transfer pursuant to clause (a), (i) the
tangible net worth after any such transaction is not less than the tangible net
worth of Tenant as of the date hereof, (ii) such successor entity assumes all of
the obligations and liabilities of Tenant, and (iii) Tenant gives ten (10) days
prior notice to Landlord (any such entity hereinafter referred to as a
"Permitted Transferee"). For the purpose of this ARTICLE 11 (x) "control" shall
mean ownership of not less than fifty percent (50%) of all voting stock or legal
and equitable interest in such corporation or entity, and (y) "tangible net
worth" shall mean the excess of the value of tangible assets (i.e. assets
excluding those which are intangible such as goodwill, patents and trademarks)
over liabilities. Any such transfer shall not relieve Tenant of its obligations
under this Lease. Nothing in this paragraph is intended to nor shall permit
Tenant to transfer its interest under this Lease as part of a fraud or
subterfuge to intentionally avoid its obligations under this Lease (for example,
transferring its interest to a shell corporation that subsequently files a
bankruptcy), and any such transfer shall constitute a Default hereunder. Except
as aforesaid, any change in control of Tenant resulting from a merger,
consolidation, or stock transfer, or any sale of substantially all of the assets
of Tenant that do not meet the requirements of this SECTION 11.03 shall be
deemed an assignment or transfer that requires Landlord's prior written consent
pursuant to SECTION 11.01 above.
ARTICLE 12 - TRANSFERS BY LANDLORD
SECTION 12.01. SALE OF THE BUILDING. Landlord shall have the right to sell
the Building at any time during the Lease Term, subject to the rights of Tenant
hereunder; and such sale shall
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INDUSTRIAL LEASE
operate to release the selling entity from liability hereunder after the date of
such conveyance. In the event a transferee shall agree to assume the obligations
and liabilities of Landlord under the Lease prior to the date of the transfer,
upon Tenant's receipt of an assumption of all the Landlord's obligations under
this Lease by the buyer of the Building, the selling entity shall be released
from all obligations and liabilities under the Lease.
SECTION 12.02. ESTOPPEL CERTIFICATE. Within ten (10) business days
following receipt of a written request from either party, the other shall
execute and deliver to the requesting party, without cost, an estoppel
certificate in such form as the requesting party may reasonably request
certifying (i) that this Lease is in full force and effect and unmodified or
stating the nature of any modification, (ii) the date to which rent has been
paid, (iii) that there are not, to the other party's knowledge, any uncured
defaults or specifying such defaults if any are claimed, and (iv) any other
matters or state of facts reasonably required respecting the Lease. Such
estoppel may be relied upon by the requesting party and by any purchaser or
mortgagee of the Building and subtenant or assignee of this Lease.
SECTION 12.03. SUBORDINATION. Landlord represents that as of the date of
this Lease, the Building is not encumbered by any mortgage. Landlord shall have
the right to subordinate this Lease to any mortgage hereafter placed upon the
Building by so declaring in such mortgage, provided that the holder of said
mortgage agrees not to disturb Tenant's possession of the Leased Premises so
long as Tenant shall not be in Default, as evidenced by a Subordination,
Non-Disturbance and Attornment Agreement ("SNDA") executed by holders of any
mortgages on the Leased Premises. Such SNDA shall provide that (i) in the event
the mortgagee files suit to foreclose the mortgage, the mortgagee will not join
Tenant in the foreclosure proceedings so long as Tenant is not in default beyond
any notice and cure period under any of the terms, covenants and conditions of
the Lease, (ii) in the event mortgagee succeeds to the interest of mortgagor, as
Landlord, and Tenant is not in default under the terms, covenants or conditions
of the Lease beyond any notice and cure period, the mortgagee shall be bound to
Tenant under all of the terms, covenants and conditions of the Lease, (iii)
Tenant agrees to attorn to mortgagee upon receipt of written notice from
Landlord or such mortgagee, and (iv) Tenant agrees to give mortgagee notice of
Landlord's default and an opportunity to cure that does not exceed Landlord's
cure period under this Lease measured from the date of mortgagee's receipt of a
notice of default. For purposes of this SECTION 12.03, the term "mortgage" shall
be deemed to refer to any mortgage, deed to secure debt, deed of trust or other
instrument in the nature thereof, and any amendments or modifications thereto.
ARTICLE 13 - DEFAULT AND REMEDY
SECTION 13.01. DEFAULT. The occurrence of any of the following shall be a
"Default":
(a) Tenant fails to pay any Monthly Rental Installment or Additional Rent
within ten (10) calendar days following written notice from Landlord on the
first occasion in any twelve (12) month period, and (ii) within five (5)
business days after the same is due on any subsequent occasion within said
twelve (12) month period.
(b) Tenant fails to perform or observe any other term, condition, covenant
or obligation required under this Lease for a period of thirty (30) days after
Tenant's receipt of
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INDUSTRIAL LEASE
notice thereof from Landlord; provided, however, that if the nature of Tenant's
default is such that more than thirty days are reasonably required to cure, then
such default shall be deemed to have been cured if Tenant commences such
performance within said thirty-day period and thereafter diligently completes
the required action within a reasonable time.
(c) Tenant shall assign or sublet all or a portion of the Leased Premises
in contravention of the provisions of Article 11 of this Lease.
(d) All or substantially all of Tenant's assets in the Leased Premises or
Tenant's interest in this Lease are attached or levied under execution (and
Tenant does not discharge the same within sixty (60) days thereafter); a
petition in bankruptcy, insolvency or for reorganization or arrangement is filed
by or against Tenant (and Tenant fails to secure a stay or discharge thereof
within sixty (60) days thereafter); Tenant is insolvent and unable to pay its
debts as they become due; Tenant makes a general assignment for the benefit of
creditors; Tenant takes the benefit of any insolvency action or law; the
appointment of a receiver or trustee in bankruptcy for Tenant or its assets if
such receivership has not been vacated or set aside within thirty (30) days
thereafter; or, dissolution or other termination of Tenant's corporate charter
if Tenant is a corporation. Notwithstanding the foregoing, (i) if Tenant
converts from one corporate entity to another, (i.e. a corporation to a limited
liability company), or (ii) all or substantially all of the stock or assets of
Tenant are acquired, such conversion or sale shall not be considered a default
hereunder provided that Tenant complies with the terms of Article 11 of this
Lease.
(e) Tenant shall fail to vacate the Leased Premises upon termination of
the Lease.
SECTION 13.02. REMEDIES. Upon the occurrence of any Default, Landlord shall
have the following rights and remedies, in addition to those allowed by law or
in equity, any one or more of which may be exercised without further notice to
Tenant:
(a) Landlord may apply the Security Deposit or re-enter the Leased
Premises and cure any default of Tenant, and Tenant shall reimburse Landlord as
additional rent for any reasonable costs and expenses, which Landlord thereby
incurs; and Landlord shall not be liable to Tenant for any loss or damage, which
Tenant may sustain by reason of Landlord's action.
(b) Landlord may terminate this Lease or, without terminating this Lease,
terminate Tenant's right to possession of the Leased Premises as of the date of
such Default, and thereafter (i) neither Tenant nor any person claiming under or
through Tenant shall be entitled to possession of the Leased Premises, and
Tenant shall immediately surrender the Leased Premises to Landlord; and (ii)
Landlord may re-enter the Leased Premises and dispossess Tenant and any other
occupants of the Leased Premises by any lawful means and may remove their
effects, without prejudice to any other remedy which Landlord may have. Landlord
shall have the right to secure the Premises against unauthorized entry and shall
allow Tenant supervised access to the Leased Premises to remove those items
belonging to Tenant. Upon the termination of this Lease, Landlord may by notice
to Tenant, declare the present value (discounted at the Prime Rate) of all rent
which would have been due under this Lease for the balance of the Lease Term to
be immediately due and payable, whereupon Tenant shall be obligated to pay the
same to Landlord, together with all loss or damage which Landlord may sustain by
reason of Tenant's Default ("Default Damages"), which shall include without
limitation expenses of preparing the Leased
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INDUSTRIAL LEASE
Premises for re-letting, demolition, repairs, tenant improvements, brokers'
commissions and attorneys' fees, it being expressly understood and agreed that
the liabilities and remedies specified in this subsection (b) shall survive the
termination of this Lease.
(c) Landlord may, without terminating this Lease, re-enter the Leased
Premises and re-let all or any part thereof for a term different from that which
would otherwise have constituted the balance of the Lease Term and for rent and
on terms and conditions different from those contained herein, Landlord shall
have the right to secure the Premises against unauthorized entry, shall allow
Tenant supervised access to the Leased Premises to remove those items belonging
to Tenant, and Tenant shall be immediately obligated to pay to Landlord as
liquidated damages the present value (discounted at the Prime Rate) of the
difference between the rent provided for herein and that provided for in any
lease covering a subsequent re-letting of the Leased Premises, for the period
which would otherwise have constituted the balance of the Lease Term, together
with all of Landlord's Default Damages. Any rent collected by Landlord in excess
of the rent due hereunder shall be applied against Landlord's Default Damages.
(d) Landlord may xxx for injunctive relief or to recover damages for any
loss resulting from the Default.
SECTION 13.03. LANDLORD'S DEFAULT AND TENANT'S REMEDIES. Landlord shall be
in default if it fails to perform any term, condition, covenant or obligation
required under this Lease for a period of thirty (30) days after written notice
thereof from Tenant to Landlord; provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is such that it cannot
reasonably be performed within thirty (30) days, such default shall be deemed to
have been cured if Landlord commences such performance within said thirty-day
period and thereafter diligently undertakes to complete the same. Upon the
occurrence of any such default, Tenant may xxx for injunctive relief or to
recover damages for any loss directly resulting from the breach, but except as
herein otherwise provided to the contrary, Tenant shall not be entitled to
terminate this Lease or withhold, offset or xxxxx any sums due hereunder.
SECTION 13.04. LIMITATION OF LANDLORD'S LIABILITY. If Landlord shall fail
to perform any term, condition, covenant or obligation required to be performed
by it under this Lease and if Tenant shall, as a consequence thereof, recover a
money judgment against Landlord, Tenant agrees that it shall look solely to
Landlord's right, title and interest in and to the Building for the collection
of such judgment; and Tenant further agrees that no other assets of Landlord
shall be subject to levy, execution or other process for the satisfaction of
Tenant's judgment. For purposes of this SECTION 13.04, Landlord's equity
interest in the Building shall be deemed to be no less than twenty percent (20%)
of the fair market value of the Building determined as of the date on which
Tenant initiates the applicable action to enforce its rights under the Lease.
SECTION 13.05. NONWAIVER OF DEFAULTS. Neither party's failure or delay in
exercising any of its rights or remedies or other provisions of this Lease shall
constitute a waiver thereof or affect its right thereafter to exercise or
enforce such right or remedy or other provision. No waiver of any default shall
be deemed to be a waiver of any other default. Landlord's receipt of less than
the full rent due shall not be construed to be other than a payment on account
of rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction. No act or
omission by Landlord or its employees or
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INDUSTRIAL LEASE
agents during the Lease Term shall be deemed an acceptance of a surrender of the
Leased Premises, and no agreement to accept such a surrender shall be valid
unless in writing and signed by Landlord.
SECTION 13.06. ATTORNEYS' FEES. If either party defaults in the performance
or observance of any of the terms, conditions, covenants or obligations
contained in this Lease and the non-defaulting party obtains a judgment against
the defaulting party, then the defaulting party agrees to reimburse the
non-defaulting party for reasonable attorneys' fees incurred in connection
therewith.
SECTION 13.07. WAIVER OF DISTRAINT. Notwithstanding anything to the
contrary contained herein, Landlord hereby waives and releases any statutory or
common law right it may have to place a lien on any Tenant's Property or to
exercise any right of distraint with respect thereto.
ARTICLE 14 - LANDLORD'S RIGHT TO RELOCATE TENANT
INTENTIONALLY OMITTED
ARTICLE 15 - TENANT'S RESPONSIBILITY REGARDING
ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES
SECTION 15.01. DEFINITIONS.
(a) "Environmental Laws" - All present or future federal, state and
municipal laws, codes, orders, decrees, ordinances, rules and regulations as
well as the rules and regulations of the United States Environmental Protection
Agency or any other federal, state or municipal agency or governmental board or
entity having jurisdiction over the Building, regulating, relating to, or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous, waste, substance, or material, gas or petroleum product.
(b) "Hazardous Substances" - For purposes of this Lease, "Hazardous
Substances" means and includes any hazardous or toxic substance, pollutant,
contaminant, gas, or petroleum product defined as such in (or for purposes of)
any Environmental Laws.
SECTION 15.02. COMPLIANCE. Tenant, at its sole cost and expense, shall
promptly comply with Environmental Laws in the operation of its business at and
in connection with its use and occupancy of the Leased Premises, including any
notice issued by a governmental authority having jurisdiction over the Leased
Premises, which shall impose any duty upon Tenant with respect to the use,
occupancy, maintenance or alteration of the Leased Premises whether such notice
shall be served upon Landlord or Tenant.
SECTION 15.03. ENVIRONMENTAL RESTRICTIONS. Tenant shall operate its
business and maintain the Leased Premises in compliance with all Environmental
Laws. Tenant shall not cause or permit the use, generation, release,
manufacture, refining, production, processing, storage or disposal of any
Hazardous Substances on, under or about the Leased Premises, or the
transportation to or from the Leased Premises of any Hazardous Substances,
except as permitted pursuant to SECTION 15.08 below, in which case the use,
storage or disposal of such Hazardous
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INDUSTRIAL LEASE
Substances shall be performed in compliance with the Environmental Laws and the
standards prevailing in the industry.
SECTION 15.04. NOTICES, AFFIDAVITS, ETC. Tenant shall immediately notify
Landlord of any violation by Tenant, its employees, agents, representatives,
invitees or contractors of the Environmental Laws on, under or about the Leased
Premises. Tenant shall immediately deliver to Landlord any notice received by
Tenant relating to any suspected violation of Environmental Laws by Tenant
received from any source. Landlord agrees to notify Tenant if, and only if (a)
Landlord receives notice of any suspected violation of Environmental Laws by
Landlord or another tenant on, under or about the Building or Common Areas, (b)
Landlord confirms such violation of Environmental Laws, and (c) Landlord
determines that such violation requires remediation. Landlord hereby agrees to
undertake such confirmation and determination as promptly as reasonably possible
following Landlord's receipt of such notice.
SECTION 15.05. LANDLORD'S RIGHTS. Landlord and its agents shall have the
right, but not the duty, upon advance notice (except in the case of emergency
when no notice shall be required) to inspect the Leased Premises and conduct
tests thereon to determine whether or the extent to which there has been a
violation of Environmental Laws by Tenant or whether there has been a release of
Hazardous Substances on, under or about the Leased Premises. In exercising its
rights herein, Landlord shall use reasonable efforts to minimize interference
with Tenant's use of the Leased Premises for the Permitted Use, but such
inspection and testing shall not constitute an eviction of Tenant, in whole or
in part, and except to the extent of the negligence or willful misconduct of
Landlord not otherwise waived pursuant to SECTION 8.06 above, Landlord shall not
be liable for any interference, loss, or damage to Tenant's property or business
caused thereby, except as otherwise provided in SECTION 5.04 above. Tenant
acknowledges, however, that in no event, whatsoever, shall Landlord be liable
for the lost profits of Tenant.
SECTION 15.06. TENANT'S ENVIRONMENTAL INDEMNIFICATION. Tenant shall
indemnify Landlord and Landlord's managing agent from any and all claims,
losses, liabilities, costs, expenses and damages, including reasonable
attorneys' fees, costs of testing and remediation costs, incurred by Landlord in
connection with the release of Hazardous Substances at or emanating from the
Leased Premises and/or any breach by Tenant of its obligations under this
Article 15, except to the extent (a) of Landlord's (or its agent's, employee's,
or contractor's) negligence or willful misconduct not otherwise waived by Tenant
pursuant to SECTION 8.06 above, or (b) otherwise set forth in this SECTION
15.06. The covenants and obligations under this Article 15 shall survive the
expiration or earlier termination of this Lease. Notwithstanding anything
contained in this Article 15 to the contrary, Tenant shall not have any
liability to Landlord under this Article 15 resulting from any conditions
existing, or events occurring, or any Hazardous Substances existing or
generated, at, in, on, under or in connection with the Leased Premises prior to
the Commencement Date of this Lease or resulting from the acts or omissions of
Landlord or another tenant during the Lease Term, except to the extent Tenant
knowingly exacerbates the same.
SECTION 15.07. LANDLORD'S REPRESENTATION. To the best of Landlord's
knowledge and belief, Landlord represents that as of the Commencement Date, the
Leased Premises shall either be in compliance with all governmental codes,
ordinances, rules and regulations (including but not limited to all
Environmental Laws) or, shall be brought into compliance with same. To the
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INDUSTRIAL LEASE
actual knowledge of Hooker Xxxxxxx and Xxxxx Xxxxxx, who are the current
employees of Landlord responsible for the leasing and management of the
Building, there has been no release of Hazardous Substances and no remediation
of Hazardous Substances has taken place at the Building or in the Common Areas.
SECTION 15.08. HAZARDOUS SUBSTANCES. If and only if Tenant complies with
all of the following conditions, Tenant may use and store in the Leased Premises
certain Hazardous Substances: (a) prior to using or storing any Hazardous
Substances in the Leased Premises, Tenant delivers to Landlord written notice
setting forth the name and estimated quantity of all such Hazardous Substances,
together with the MSDS Sheets for such Hazardous Substances (to the extent not
previously delivered to Landlord), (b) Tenant takes all commercially reasonable
precautions necessary or advisable and uses all commercially reasonable efforts
to prevent a release of any Hazardous Substances, (c) Tenant uses and stores all
Hazardous Substances in accordance with the Materials Safety Data Sheets (the
"MSDS Sheets") that Tenant provides to Landlord, (d) Tenant does not use or
store any Hazardous Substances in a manner that would cause the Leased Premises
to become subject to regulation as a hazardous waste treatment, storage or
disposal facility under the Resource Conservation and Recovery Act ("RCRA") or
the regulations promulgated thereunder, and (e) Tenant shall not use or store
any Hazardous Substances in a manner as to cause Tenant to become regulated as a
generator under RCRA other than as a "Conditionally Exempt Small Quantity
Generator", which shall mean the current RCRA definition of a generator of not
more than 100kg. of hazardous waste per month. Provided that Tenant complies
with this ARTICLE 15, Landlord acknowledges and agrees that Tenant may use
ethidium bromide (in quantities not to exceed 1,000 milligrams at any given
time), radio isotope P32 (in quantities not to exceed 20mCuries at any given
time), radio isotope P33 (in quantities not to exceed 20mCuries at any given
time), and radio isotope S35 (in quantities not to exceed 20mCuries at any given
time) at the Leased Premises in accordance with the foregoing.
SECTION 15.09. LANDLORD INDEMNITY. Landlord hereby agrees to indemnify
Tenant and hold Tenant harmless from and against any and all reasonable and
actual expense, loss and liability suffered by Tenant (with the exception of any
and all punitive or consequential damages) by reason of Hazardous Substances
disposed or released at the Building or Common Areas or upon or within the
Leased Premises during the Lease Term by Landlord or its agents, employees or
contractors. Notwithstanding the foregoing, Landlord shall have the right to
undertake and perform any studying, remedying, removing, disposing or otherwise
addressing the existence of any Hazardous Substances that are the responsibility
of Landlord hereunder and of all communications with regulatory or governmental
agencies with respect thereto, and Tenant shall not perform such acts and
communications unless (a) Tenant is specifically required by Environmental Laws
to perform such acts, and (b) Landlord has failed or refused to perform such
acts and communications after having been afforded reasonable written notice by
Tenant and having had reasonable opportunity to perform such acts and
communications.
ARTICLE 16 - MISCELLANEOUS
SECTION 16.01. BENEFIT OF LANDLORD AND TENANT. This Lease shall inure to
the benefit of and be binding upon Landlord and Tenant and their respective
successors and assigns.
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INDUSTRIAL LEASE
SECTION 16.02. GOVERNING LAW. This Lease shall be governed in accordance
with the laws of the State where the Building is located.
SECTION 16.03. MEMORANDUM OF LEASE. The parties agree that this Lease may
not be recorded but that at the request of either party the other shall execute
a Memorandum of Lease, which may be recorded, in substantially the form attached
hereto as EXHIBIT G and made a part hereof. The parties agree to remove the
Memorandum of Lease of record upon the expiration or earlier termination of this
Lease. In the event of an early termination as a result of Tenant's default and
vacation of the Leased Premises, Tenant agrees that Landlord can unilaterally
remove the Memorandum of Lease of record.
SECTION 16.04. FORCE MAJEURE. Landlord and Tenant (except with respect to
the payment of any monetary obligation) shall be excused for the period of any
delay in the performance of any obligation hereunder when such delay is
occasioned by causes beyond its control, including but not limited to work
stoppages, boycotts, slowdowns or strikes; shortages of materials, equipment,
labor or energy; unusual weather conditions; or acts or omissions of
governmental or political bodies.
SECTION 16.05. EXAMINATION OF LEASE. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation of or
option for Lease, and it is not effective as a Lease or otherwise until
execution by and delivery to both Landlord and Tenant.
SECTION 16.06. INDEMNIFICATION FOR LEASING COMMISSIONS. The parties hereby
represent and warrant that the only real estate brokers involved in the
negotiation and execution of this Lease are the Brokers and that no other party
is entitled, as a result of the actions of the respective party, to a commission
or other fee resulting from the execution of this Lease. Each party shall
indemnify the other from any and all liability for the breach of this
representation and warranty on its part. Landlord shall pay the Brokers a
commission in connection with this Lease in accordance with a separate
agreement.
SECTION 16.07. NOTICES. Any notice required or permitted to be given under
this Lease or by law shall be deemed to have been given if it is written and
delivered in person or by overnight courier with computerized tracking
capabilities or mailed by certified mail, postage prepaid, to the party who is
to receive such notice at the address specified in Article 1. If delivered in
person, notice shall be deemed given as of the delivery date. If sent by
overnight courier, notice shall be deemed given as of the first business day
after sending. If mailed, the notice shall be deemed to have been given on the
date that is three business days after mailing. Either party may change its
address by giving written notice thereof to the other party.
SECTION 16.08. PARTIAL INVALIDITY; COMPLETE AGREEMENT. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions shall remain in full force and effect. This Lease represents the
entire agreement between Landlord and Tenant covering everything agreed upon or
understood in this transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof or in effect between the
parties. No change or addition shall be made to this Lease except by a written
agreement executed by Landlord and Tenant.
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INDUSTRIAL LEASE
SECTION 16.09. FINANCIAL STATEMENTS. During the Lease Term and any
extensions thereof, Tenant shall provide to Landlord on an annual basis, within
ninety (90) days following the end of Tenant's fiscal year, a copy of Tenant's
most recent financial statements (certified and audited if the Minimum Annual
Rent hereunder exceeds $100,000) prepared as of the end of Tenant's fiscal year.
Such financial statements shall be signed by Tenant who shall attest to the
truth and accuracy of the information set forth in such statements. All
financial statements provided by Tenant to Landlord hereunder shall be prepared
in conformity with generally accepted accounting principles, consistently
applied. Notwithstanding the foregoing, to the extent that Tenant is required to
file financial information with the Securities and Exchange Commission and as
long as Tenant's annual report containing financial information about Tenant is
available online, the provisions of this SECTION 16.09 shall not apply.
SECTION 16.10. REPRESENTATIONS AND WARRANTIES. The undersigned represent
and warrant that (i) such party is duly organized, validly existing and in good
standing (if applicable) in accordance with the laws of the state under which it
was organized and if such state is not the state in which the Leased Premises is
located, that it is authorized to do business in such state; and (ii) the
individual executing and delivering this Lease has been properly authorized to
do so, and such execution and delivery shall bind such party.
ARTICLE 17 - SPECIAL PROVISIONS
SECTION 17.01. OPTION TO EXTEND.
(a) GRANT AND EXERCISE OF OPTION. Provided that (i) Tenant is not then in
default hereunder (or, if Tenant is then in default, provided that Tenant cures
such default within the applicable cure period set forth in SECTION 13.01
above), (ii) the creditworthiness of Tenant, as revealed by its most current
financial statements, is materially the same as or better than on the date of
the Lease, and (iii) the current use of the Leased Premises is consistent with
the Permitted Use hereunder, Tenant shall have one (1) option to extend the
Lease Term for one (1) additional period of five (5) years (the "Extension
Term"). The Extension Term shall be upon the same terms and conditions contained
in the Lease for the Lease Term except (i) Tenant shall not have any further
option to extend and (ii) the Minimum Annual Rent shall be adjusted as set forth
in subsection (b) below ("Rent Adjustment"). Tenant shall exercise such option
by delivering to Landlord, no later than twelve (12) months prior to the
expiration of the Lease Term, written notice of Tenant's desire to extend the
Lease Term. Tenant's failure to properly exercise such option shall be deemed a
waiver of such option. If Tenant properly exercises its option to extend,
Landlord and Tenant shall execute an amendment to the Lease reflecting the terms
and conditions of the Extension Term, within thirty (30) days after Tenant's
exercise of its option to extend.
(b) RENT ADJUSTMENT. The Minimum Annual Rent for the Extension Term shall
be an amount equal to one hundred three percent (103%) of the Minimum Annual
Rent in effect at the end of the Lease Term for the first twelve (12) months of
the Extension Term, escalated by three percent (3%) for each successive twelve
(12) month period of the Extension Term. The Monthly Rental Installment shall be
an amount equal to one-twelfth (1/12) of the Minimum Annual Rent for the
Extension Term and shall be paid at the same time and in the same manner as
provided in the Lease.
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INDUSTRIAL LEASE
(c) PERSONAL. Notwithstanding the foregoing, in the event of an assignment
or subletting to other than a Permitted Transferee, and further provided that
the option to extend set forth in subsection (a) above has not been exercised,
the following provision will apply in lieu of the foregoing:
GRANT AND EXERCISE OF OPTION. Provided that (i) the Lease is in full force
and effect, (ii) no Default has occurred and is then continuing and no facts or
circumstances exist which, with the giving of notice or the passage of time, or
both, would constitute a Default, and (iii) the creditworthiness of Tenant, as
revealed by its most current financial statements, is materially the same as or
better than on the date of the Lease, Tenant shall have one (1) option to extend
the initial Lease Term (the "Original Term") for one (1) additional period of
five (5) years (the "Extension Term"). The leasing of the Leased Premises for
the Extension Term shall be upon the same terms and conditions contained in the
Lease for the Original Term except (i) Tenant shall not have any further option
to extend; (ii) any improvement allowances or other concessions applicable to
the Leased Premises during the Original Term shall not apply to the Extension
Term, and (iii) the Minimum Annual Rent shall be adjusted as set forth herein
(said adjustment being referred to herein as the "Rent Adjustment"). Tenant
shall exercise such option by delivering to Landlord, no later than one hundred
eighty (180) days prior to the expiration of the Original Term, written notice
of Tenant's desire to extend the Original Term. Tenant's failure to timely
exercise such option shall be deemed a waiver of such option. If Tenant properly
exercises its option to extend, Landlord shall notify Tenant of Landlord's
determination of the Rent Adjustment no later than ninety (90) days prior to the
commencement of the Extension Term. Tenant shall have five (5) business days
following its receipt of Landlord's notice to notify Landlord in writing that
Tenant objects to the Rent Adjustment, and therefore that Tenant retracts its
option to extend the Lease Term, in which case the Lease Term shall expire on
its scheduled expiration date and Tenant's option to extend shall be void and of
no further force and effect. Tenant shall be deemed to have accepted the Rent
Adjustment if it fails to deliver to Landlord a written objection thereto within
said five (5) business day period. If Tenant timely exercises its option to
extend, Landlord and Tenant shall execute an amendment to the Lease (or, at
Landlord's option, a new lease on the form then in use for the Building)
reflecting the terms and conditions of the Extension Term, within thirty (30)
days after Tenant's acceptance (or deemed acceptance) of the Rent Adjustment.
The Minimum Annual Rent for the Extension Term shall be determined by Landlord
based on the monthly rent charged to renewing tenants for comparable buildings
(e.g., age, physical condition, number of stories, total size, comparable
location) in the area in which the Leased Premises are located, taking into
account all financial terms, including without limitation, base rent, free rent,
escalations, work contributions and allowances and leasing and brokerage
commissions; provided, however, that in no event shall the Minimum Annual Rent
per square foot during the Extension Term be less than the highest Minimum
Annual Rent per square foot payable during the Original Term. The Monthly Rental
Installments shall be an amount equal to one-twelfth (1/12) of the Minimum
Annual Rent for the Extension Term and shall be paid at the same time and in the
same manner as provided in the Lease.
SECTION 17.02. PARKING. Tenant shall be entitled to 3.34 parking spaces for
every 1,000 rentable square feet of the Leased Premises (rounded up to the
nearest whole number) in the parking areas established for the Building. All
spaces shall be unreserved on a first-come, first-served basis.
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INDUSTRIAL LEASE
SECTION 17.03. ADDITIONAL POWER. Tenant shall have the exclusive right, to
use the back-up generator and UPS system that currently services the Building
(the "Additional Power") as a back-up power source for the Leased Premises.
Landlord represents that the Additional Power will be in good working order as
of the Commencement Date and that Landlord shall have obtained any permits for
use of the Additional Power as required by governmental authority having
jurisdiction over the Additional Power. Specifically and without limitation,
Landlord agrees to replace the batteries in the uninterrupted power supply
system. Tenant may not increase its power requirements, thereby increasing the
amount of power that the Additional Power must provide to the Leased Premises,
without Landlord's prior written consent. During the Lease Term, Tenant shall be
responsible for the maintenance and repair of the Additional Power at its sole
cost and expense; provided, however, that Landlord shall connect the Additional
Power to those outlets and equipment indicated by Tenant as part of the Tenant
Improvements. Upon the earlier termination or expiration of this Lease, the
Additional Power shall remain the property of Landlord.
SECTION 17.04. ROOFTOP INSTALLATION.
(a) ROOF AREA. "Roof Area" shall mean the surface of the roof of the
Building.
(b) DISH. "Dish" shall mean a satellite dish (not exceeding four (4) feet
in diameter) and related equipment.
(c) LICENSE OF ROOF AREA. Provided Tenant is not in default under the
Lease, and provided further that Tenant complies with all zoning and other
municipal and county rules and regulations, and all applicable restrictions of
record, Tenant shall have the right, at its own cost and expense and subject to
the terms hereof, to install, operate and maintain the Dish on the Roof Area, so
long as the Dish is used exclusively for Tenant's use and not sold to or
utilized in any manner by a third party. Tenant shall be solely responsible for
obtaining any necessary permits and licenses required to install and operate the
Dish. Copies of such permits and licenses shall be provided to Landlord.
(d) INSTALLATION OF THE DISH.
(i) The size, location, design and manner of installation of the
Dish and all related wiring shall be designated and approved by Landlord. After
obtaining written approval of Landlord, Tenant shall have reasonable access to
the roof for installation and maintenance of the Dish and shall have the right
to install all reasonable wiring related thereto. However, unless otherwise
approved by Landlord in writing, in no event shall Tenant be permitted to
penetrate the roof membrane in connection with the installation or maintenance
of the Dish. Tenant represents and warrants that the installation and
maintenance of the Dish will not cause any damage to the structural portions of
the Building. Tenant shall be responsible for repairing any such damages to the
structure.
(ii) Tenant shall use the roofing company specified by the
Landlord to perform any work affecting the roof, provided the costs charged by
such roofer are competitive with charges for similar services within the same
geographic region. Tenant shall match as nearly as possible the color of the
Dish to the existing facade of the Building. All cable runs,
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INDUSTRIAL LEASE
conduit and sleeving shall be installed in a good workmanlike manner. Cables and
transmission lines shall be routed and attached in accordance with current,
state of the art industry practices. The Dish shall be identified with
permanently marked, weather proof tags at the following locations: (A) each
antenna bracket; (B) at the transmission line building entry point; (C) at the
interior wall feed through or any other transmission line exit point; and (D) at
any transmitter combiner, duplexer, or multifed receive port. In addition, all
Tenant telephone blocks, demarcs, and cables shall be clearly identified with
the Tenant's name, type of line, and circuit number.
(iii) Tenant shall install, operate and maintain the Dish in
accordance with all federal, state and local laws and regulations. Prior to
installation of the Dish, Tenant shall, on behalf of the installer, provide
Landlord with a certificate of insurance reasonably satisfactory to Landlord.
(e) ROOF WORK. If, during the term of this Agreement, as same may be
extended, Landlord needs to perform maintenance work to Landlord's equipment on
the roof of the Building or repair or replace the roof of the Building ("Roof
Work"), Tenant agrees to cooperate and work with Landlord (at Tenant's sole cost
and expense) to achieve said Roof Work. Landlord agrees to provide at least
thirty (30) days notice to Tenant of its intention to perform said work; except
in the case of emergency Roof Work in which case Landlord shall give as much
notice as possible under the circumstances. Such plan may require the relocation
of any portion of the Dish at Tenant's cost and expense or Tenant's installation
of temporary equipment. Moreover, if a temporary relocation of the Dish is
required to accommodate the Roof Work, Landlord agrees to exercise commercially
reasonable efforts to identify a technically feasible alternative location for
the relocation portion of the Dish that will not impede the Roof Work.
Notwithstanding the foregoing, Landlord does not warrant and represent that in
all circumstances that an alternative location will be available and,
consequently, Landlord's obligation to provide such alternative location is
subject to the availability of such space and under no circumstances shall
Landlord be liable to Tenant for any consequential damages as a result of such
relocation including, but not limited to, loss of business income or
opportunity. Notwithstanding the foregoing, Tenant shall move the Dish back to
its original location after the Roof Work is completed unless the parties agree
to utilize the relocated area permanently.
(f) INTERFERENCE. Tenant shall not use the Roof Area or the Dish in any
way that interferes with the use and enjoyment of the Property by: (i) Landlord,
(ii) tenants or licensees of Landlord leasing or licensing space in the Building
primarily for the same or similar use as a majority of the other tenants or
licensees in the Building and which is consistent with the purpose for which the
Building is operated ("Building Tenants"), or (iii) tenants or licensees of
Landlord who commenced occupancy at the Building on a date which precedes the
date of Tenant's installation of the Dish (the "Dish Commencement Date"), and
who are leasing or licensing space from Landlord and using the Property as a
communications transmitting or receiving site ("Existing Licensees"). The
operation of the Dish shall not interfere with the maintenance or operation of
the Building, including but not limited to the roof, MATV, CATV or other video
systems, HVAC systems, electronically controlled elevator systems, computers,
telephone systems, or any other system serving the Building and/or its
occupants. The operation of the Dish shall not interfere with radio or
telecommunication equipment installed by telecommunication service providers at
the Building prior to the Dish Commencement Date. Tenant shall indemnify
Landlord and hold Landlord harmless from all expenses, costs, damages,
29
INDUSTRIAL LEASE
loss, claims or other expenses and liabilities arising from any such
interference. Tenant agrees to cease all operations (except for testing as
approved by Landlord) within twenty-four (24) hours of receipt of notice from
Landlord of such interference and to continue to cease all operations until the
interference has been corrected to the sole satisfaction of the Landlord. If
such interference has not been corrected within thirty (30) days, Landlord may
require Tenant to remove the specific items from the Dish causing such
interference. All operations by Tenant shall be lawful and in compliance with
all FCC rules and regulations. Tenant shall be responsible for all costs
associated with any tests deemed necessary to resolve any and all interference
which Landlord determines or reasonably believes is being caused by the Dish or
Tenant's use thereof.
(g) EMERGENCIES. Notwithstanding the foregoing, if an emergency situation
exists which Landlord reasonably determines, in its sole discretion, to be
attributable to the Dish, Landlord shall immediately notify Tenant verbally, who
shall act diligently and expediently to remedy the emergency situation. Should
Tenant fail to so remedy the emergency situation or should Landlord reasonably
determine that the response time by Tenant is not adequate given the nature of
the emergency, Landlord may then shut down the Dish and Tenant shall have no
recourse against Landlord as a result of such action.
(h) REMOVAL OF THE DISH UPON TERMINATION. Following any termination or
expiration of this Lease, Tenant shall remove all of the Dish from the Building.
In performing such removal, Tenant shall restore the Roof Area and any personal
property and fixtures thereon to as good a condition as they were prior to the
installation or placement of the Dish, reasonable wear and tear excepted. If
Tenant fails to remove the Dish within thirty (30) days after expiration or
earlier termination of this Agreement, Landlord may remove and dispose of the
Dish and Tenant shall reimburse Landlord for the costs of such removal and
restoration of the Roof Area. Moreover, Landlord may deem the Dish abandoned in
which event the Dish shall become Landlord's property. This subsection (h) shall
survive the expiration or earlier termination of this Lease.
(i) UTILITIES. Tenant shall be responsible for obtaining and paying for
all utilities to operate the Dish.
(j) TENANT'S RIGHT TO DISCONTINUE USE. Tenant reserves the right to
discontinue its use of the Dish at any time prior to the termination of the
Lease or any renewal or extension thereof for any reason whatsoever, provided
that Tenant gives thirty (30) days prior written notice thereof to Landlord.
(k) INDEMNITY. Tenant shall indemnify, defend and hold Landlord harmless
from and against any and all liability, damages (including but not limited to
personal injury, death, or property damages), costs, expenses, and attorneys'
fees incurred by Landlord arising from any Dish related cause whatsoever,
including those arising from the installation, use, maintenance and removal
thereof. This subsection (k) shall survive the expiration or earlier termination
of this Lease.
SECTION 17.05. HVAC. Notwithstanding anything to the contrary set forth in
this Lease, on or before the Commencement Date, Landlord shall replace, at its
sole cost and expense, all
30
INDUSTRIAL LEASE
heating, ventilation and air-conditioning units serving the Leased
Premises(collectively, the "Units"). Throughout the Lease Term, Landlord shall
pass through to Tenant the benefit of any warranties on the Units held by
Landlord.
SECTION 17.06. COUNTERPARTS. This Lease may be executed in multiple
counterparts, each of which shall be deemed and original and both of which, when
taken together, shall constitute one and the same document.
[EXECUTION SIGNATURES CONTAINED ON THE FOLLOWING PAGE]
31
INDUSTRIAL LEASE
IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal
as of the day and year first above written.
LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP, an Indiana
limited partnership doing business in North
Carolina as Duke Realty of Indiana Limited
Partnership
By: Duke Realty Corporation,
its General Partner
By:/s/ H. Xxxxxx Xxxxxx [SEAL]
--------------------------
Printed: H. Xxxxxx Xxxxxx
-----------------------
Title: SVP
-------------------------
TENANT:
GENAISSANCE PHARMACEUTICAL, INC., a
Delaware corporation
By: Xxx X. Xxxxxx [SEAL]
------------------------
Printed: Xxx X. Xxxxxx
---------------------
Title: SVP & CFO
-----------------
END OF EXECUTION SIGNATURES
32
INDUSTRIAL LEASE
EXHIBIT A
LEASED PREMISES
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1
INDUSTRIAL LEASE
EXHIBIT B
1. LANDLORD'S OBLIGATIONS. Tenant has personally inspected the Leased
Premises and except as specifically provided to the contrary in the Lease,
including, without limitation, this EXHIBIT B, accepts the same "AS IS". Except
for Landlord's representations and warranties set forth in the Lease and
Landlord's obligations set forth in SECTION 7.02 of the Lease, Landlord shall
have no responsibility with respect to the Leased Premises except to construct
and install within the Leased Premises, in a good and workmanlike manner, and in
compliance with all applicable laws, the Tenant Improvements, in accordance with
this EXHIBIT B. Landlord, at its expense, shall deliver the Leased Premises to
Tenant with the electrical, plumbing, sprinkler, gas, and heating, air
conditioning and ventilation systems serving the Leased Premises in working
order on the Commencement Date.
2. CONSTRUCTION DRAWINGS, COST STATEMENT AND ALLOWANCE.
(a) On or before the thirtieth (30th) day following the date hereof,
Landlord shall prepare and submit to Tenant a set of construction drawings (the
"CD's") covering all work to be performed by Landlord in constructing and
installing the Tenant Improvements, which shall be based on the scope of work
attached as EXHIBIT B-1 hereto. Landlord shall bear responsibility for ensuring
that (i) the CD's are prepared by an architect and or engineer licensed in the
State of North Carolina, (ii) such CD's will comply with the laws, codes, and
ordinances of governmental authority having jurisdiction over the Leased
Premises, and (iii) the CD's represent the reasonable and logical development of
the scope of work set forth on EXHIBIT B-1 hereto.
(b) Tenant shall have seven (7) days after receipt of the CD's in
which to review the CD's and to give Landlord written notice of Tenant's
approval of the CD's or its requested changes thereto. Tenant shall have no
right to request any changes to the CD's that would materially alter the
exterior appearance or basic nature of the Building or the Building systems. If
Tenant requests any changes to the CD's that increase the scope of work, any
resulting delay shall be deemed a Tenant Delay. If Tenant fails to approve or
request changes to the CD's within seven (7) days after its receipt of the CD's,
then Tenant shall be deemed to have approved the CD's and the same shall
thereupon be final. If Tenant requests any changes to the CD's, Landlord shall
make those changes which are reasonably requested by Tenant and shall within ten
(10) days of its receipt of such request submit the revised portion of the CD's
to Tenant. Tenant may not thereafter disapprove the revised portions of the CD's
unless Landlord has failed to incorporate reasonable comments of Tenant and,
subject to the foregoing, the CD's, as modified by said revisions, shall be
deemed to be final upon the submission of said revisions to Tenant. Landlord and
Tenant agree that any changes requested by Tenant shall be deemed reasonable
provided such change does not affect any structural elements of the Building and
cannot be seen from outside of the Leased Premises. Landlord shall at all times
in its preparation of the CD's or incorporation of Tenant's comments, and Tenant
shall at all times in its review of the CD's and of any revisions thereto, act
reasonably and in good faith. Following Tenant's approval (or deemed approval)
of the CD's, upon Landlord's request, Tenant agrees to confirm Tenant's consent
to the CD's in writing within three (3) days following Tenant's receipt of the
revised CD's.
1
INDUSTRIAL LEASE
(c) Following Tenant's approval (or deemed approval) of the CD's,
Landlord shall solicit competitive bids from at least three (3) subcontractors
for each major trade. Landlord and Tenant shall review the bids jointly and
Tenant shall select one sub-contractor for each item bid. Tenant shall not be
required to choose the low bidder. It is the parties' intent that the Landlord
or its subsidiary act as general contractor for construction of the Tenant
Improvements. The total cost of the Tenant Improvements (the "Total Cost") shall
equal the sum of the following: (i) the cost of construction work performed
directly by Landlord's contractors and subcontractors (the "Construction Cost"),
(ii) the cost of General Conditions (as hereinafter defined), currently
estimated to be $99,932.80, (iii) the cost of reasonable design fees and
engineering fees incurred by Landlord in the design of the Space Plan and the
CD's (the "Design Cost"), currently estimated to be $39,425.60, (iv) a fee in
the amount of seven percent (7%) of the Construction Cost, and the General
Conditions, and (v) a fee in the amount of three and one-half percent (3 1/2%)
of the Design Cost. General Conditions shall include the following expenses:
supervisory fees for the project superintendent, project manager and
administrative assistant, building permit fee, cost of the contractor's
commercial general liability, workers' compensation and employer liability
insurance, including deductibles, safety railings if required, copying charges
for the CD's and any other documents required to complete the Tenant
Improvements, postage, computers, computer operation, faxing, telephones,
hoisting equipment, fire protection, unloading equipment, first aid supplies and
service, clean-up, temporary construction barriers, temporary heat, lighting and
electricity, temporary/portable toilets, waste management and dumpsters, permit,
testing and inspection fees and the cost of temporary utilities. Promptly
following the selection of all subcontractors, Landlord shall deliver to Tenant
a statement of the Total Cost (the "Cost Statement"). Notwithstanding the
forgoing, the Cost Statement shall not include any fees for review of the Space
Plan by the construction manager or general contractor. Tenant agrees to
acknowledge the Cost Statement in writing within three (3) days following
Landlord's written request therefor. Notwithstanding the foregoing, if all the
bids received for any major trade cause Tenant's internal budget for the Tenant
Improvements to be exceeded, Tenant may require revisions to the CD's, at
Tenant's cost, and that the revised CD's be rebid by the same or different
bidders. In such event, any delay to Substantial Completion that cannot be
mitigated during construction shall constitute Tenant Delay (as hereinafter
defined).
(d) Tenant shall be responsible for the Total Cost to design,
construct and install the Tenant Improvements only to the extent that the Cost
Statement, taking into account any increases or decreases resulting from any
Change Orders (as hereinafter defined), exceeds Seven Hundred Thousand and
No/100 Dollars ($700,000.00) (the "Allowance"). Following Substantial Completion
of the Tenant Improvements, Tenant shall pay to Landlord the difference between
the Cost Statement (taking into account any increases or decreases resulting
from any Change Orders) and the Allowance within ten (10) days of Landlord's
request therefor. Tenant's failure to deliver the payments required in this
paragraph shall entitle Landlord to stop the construction and installation of
the Tenant Improvements until such payment is received, and any resulting delay
shall constitute a Tenant Delay hereunder. In addition, all delinquent payments
shall accrue interest at 10% per annum. If the Allowance exceeds the Cost
Statement (taking into account any increases or decreases resulting from any
Change Orders), such savings shall be paid by Landlord to Tenant as a credit
against the Additional Rent first becoming due under the Lease.
2
INDUSTRIAL LEASE
(e) Landlord shall apply for and obtain all permits, inspections and
any certificate of occupancy required for the construction of the Tenant
Improvements and the use and occupancy of the Leased Premises, except for any
permits and inspections not included in the Tenant Improvements. Landlord hereby
warrants to Tenant that construction of the Tenant Improvements shall be carried
out in a workmanlike manner and compliance with all laws and that the Tenant
Improvements shall be built in accordance with the CD's, as same may be amended
by Change Order (as hereinafter defined). Landlord hereby further warrants to
Tenant, which warranty shall survive for the one (1) year period following the
Commencement Date, that (i) the materials and equipment furnished by Landlord's
contractors in the completion of the Tenant Improvements will be of good quality
and new, (ii) such materials and equipment and the work of such contractors
shall be free from defects not inherent in the quality required or permitted
hereunder, and (iii) the Tenant Improvements will be constructed in accordance
with the CD's, as same may be amended by Change Order. This warranty shall
exclude damages or defects caused by Tenant, its agents, employees or
contractors, improper or insufficient maintenance, improper operation or normal
wear and tear under normal usage.
3. SCHEDULE AND EARLY OCCUPANCY. Within ten (10) days following Tenant's
approval of the Cost Statement, Landlord shall provide Tenant with a proposed
schedule for the construction and installation of the Tenant Improvements and
shall notify Tenant of any material changes to said schedule. If, according to
the proposed schedule, the date for Substantial Completion is later than the
Target Commencement Date, Tenant's acceptance of such schedule shall not be
deemed a waiver of any of Tenant's rights under Sections 5(b) or 5(c) of this
EXHIBIT B. Landlord agrees to use commercially reasonable efforts, at no
additional cost to Landlord, to mitigate any delay in the schedule. Tenant
agrees to coordinate with Landlord and Landlord agrees to cooperate with Tenant
and Tenant's contractor regarding the installation of Tenant's phone and data
wiring, furniture installation and any other trade related fixtures that will
need to be installed in the Leased Premises prior to Substantial Completion. In
addition, if and to the extent permitted by applicable laws, rules and
ordinances, Tenant shall have the right to enter the Leased Premises for thirty
(30) days prior to the scheduled date for Substantial Completion (as may be
modified from time to time) in order to install wiring and fixtures and
otherwise prepare the Leased Premises for occupancy, which right shall expressly
exclude making any structural modifications. Landlord shall coordinate entries
by Tenant's contractors in order to permit cabling and wiring to be installed
while walls and floors are open. During any entry prior to the Commencement Date
(a) Tenant shall comply with all terms and conditions of this Lease other than
the obligation to pay rent, (b) Tenant shall not interfere with Landlord's
completion of the Tenant Improvements, (c) Tenant shall cause its personnel and
contractors to comply with the terms and conditions of Landlord's rules of
conduct (which Landlord has heretofore furnished to Tenant), and (d) Tenant
shall not begin operation of its business. Tenant acknowledges that with respect
to any finish work undertaken by Tenant's contractors, Tenant shall be
responsible for obtaining all applicable permits and inspections.
4. CHANGE ORDERS. Tenant shall have the right to request changes to the
CD's at any time following the date Tenant approves or is deemed to have
approved the CD's pursuant to paragraph 2(a) hereof by way of written change
order (each, a "Change Order", and collectively, "Change Orders"). Following a
request from Tenant, and provided such Change Order is approved by Landlord
(Landlord agreeing not to unreasonably withhold its approval of any Change
Order), Landlord shall prepare and submit promptly to Tenant a memorandum
setting
3
INDUSTRIAL LEASE
forth the impact on cost and schedule resulting from said Change Order (the
"Change Order Memorandum of Agreement"). Tenant shall, within three (3) days
following Tenant's receipt of the Change Order Memorandum of Agreement, either
(a) execute and return the Change Order Memorandum of Agreement to Landlord, or
(b) retract its request for the Change Order. At Landlord's option, Tenant shall
pay to Landlord (or Landlord's designee), within ten (10) days following
Landlord's request, any increase in the cost to construct the Tenant
Improvements over the Allowance resulting from the Change Order, as set forth in
the Change Order Memorandum of Agreement. Landlord shall not be obligated to
commence any work set forth in a Change Order until such time as Tenant has
delivered to Landlord the Change Order Memorandum of Agreement executed by
Tenant and, if applicable, Tenant has paid Landlord in full for said Change
Order.
5. TENANT DELAY.
(a) Notwithstanding anything to the contrary contained in the Lease,
if Substantial Completion of the Tenant Improvements is delayed beyond the
Target Commencement Date as a result of Tenant Delay (as hereinafter defined),
then, for purposes of determining the Commencement Date, Substantial Completion
of the Tenant Improvements shall be deemed to have occurred on the date that
Substantial Completion of the Tenant Improvements would have occurred but for
such Tenant Delay. Without limiting the foregoing, Landlord shall use
commercially reasonable speed and diligence to Substantially Complete the Tenant
Improvements on or before the Target Commencement Date.
(b) Provided this Lease is executed by Tenant on or before April 27,
2004, if Landlord fails to achieve Substantial Completion within thirty (30)
days of the Target Commencement Date, as extended for Tenant Delay or Force
Majeure, then Landlord shall provide Tenant one (1) day's Minimum Annual Rental
and Additional Rent abatement for each day of delay after such thirty (30) day
period until the Leased Premises are delivered to Tenant. Such abatement shall
commence as of the first anniversary of the Commencement Date, shall be Tenant's
sole remedy for Landlord's failure to deliver the Leased Premises as set forth
above, and Tenant shall not be entitled to damages (consequential or otherwise)
as a result thereof. For example, assuming there is no Tenant Delay or Force
Majeure, if Landlord achieves Substantial Completion on November 5, 2004, (a)
the Commencement Date will be November 5, 2004, and (b) Tenant's obligation to
pay Minimum Annual Rent and Additional Rent will xxxxx during the five (5) day
period commencing as of November 5, 2005 and continuing through and including
November 9, 2005.
(c) Notwithstanding the foregoing, for purposes of this SECTION 5 (i)
in no event shall Force Majeure include any delay due to the default, negligence
or willful misconduct of any contractors or subcontractors performing the Tenant
Improvements, (ii) if the delay in Substantial Completion of the Tenant
Improvements is due to Force Majeure and such delay is in excess of seventy-five
(75) days beyond the Target Commencement Date, Tenant, at Tenant's option, shall
have the right to receive one (1) day's Minimum Annual Rent abatement for each
two (2) days of Force Majeure delay after such seventy-five (75) day period
until the Leased Premises are delivered to Tenant. Such abatement shall commence
as of the first anniversary of the Commencement Date, shall be Tenant's sole
remedy for Landlord's failure to deliver the Leased Premises as set forth above,
and Tenant shall not be entitled to damages (consequential or
4
INDUSTRIAL LEASE
otherwise) as a result thereof. For example, if Substantial Completion is
delayed, entirely due to Force Majeure, until December 31, 2004, (x) the
Commencement Date will be December 31, 2004, (y) Tenant shall be entitled to 8
days of abatement (due to the Force Majeure delay exceeding the 75 day period by
16 days), making Tenant's obligation to pay Minimum Annual Rent and Additional
Rent xxxxx during the eight (8) day period commencing as of December 31, 2005
and continuing through and including January 7, 2005.
6. LETTER OF UNDERSTANDING. Promptly following the Commencement Date,
Tenant shall execute Landlord's Letter of Understanding in substantially the
form attached hereto as EXHIBIT C and made a part hereof, acknowledging (a) the
Commencement Date of this Lease, and (b) except for any punchlist items, that
Tenant has accepted the Leased Premises, subject to Landlord's representations
and warranties set forth in the Lease, including without limitation, this
EXHIBIT B. If Tenant takes possession of and occupies the Leased Premises,
Tenant shall be deemed to have accepted the Leased Premises and that the
condition of the Leased Premises and the Building was at the time satisfactory
and in conformity with the provisions of this Lease in all respects, subject to
any punchlist items and subject to Landlord's representations and warranties set
forth in the Lease, including without limitation, this EXHIBIT B.
7. DEFINITIONS. For purposes of this Lease (a) "Substantial Completion"
(or any grammatical variation thereof) shall mean completion of all approved
exterior signage and completion of construction of the Tenant Improvements, as
established by a certificate of occupancy for the Leased Premises or other
similar authorization issued by the appropriate governmental authority
permitting lawful use and occupancy of the Leased Premises, such that Tenant
could occupy the Leased Premises on that date without material interruption from
Landlord's contractor in completing any punchlist work, and subject only to
punchlist items to be identified by Landlord and Tenant in a joint inspection of
the Leased Premises prior to Tenant's occupancy, and (b) "Tenant Delay" shall
mean any delay in the completion of the Tenant Improvements attributable to
Tenant, including, without limitation (i) Tenant's failure to meet any time
deadlines specified herein, (ii) Change Orders requested by Tenant, (iii) the
performance of any other work in the Leased Premises by any person, firm or
corporation employed by or on behalf of Tenant who fail to cooperate with
Landlord's contractor in creating a schedule that will not delay either party's
work, or any failure to complete or delay in completion of such Tenant's work,
(iv) Landlord's inability to obtain an occupancy permit for the Leased Premises
because of the need for completion of all or a portion of improvements being
installed in the Leased Premises directly by Tenant, and (v) any other act or
omission of Tenant.
END OF EXHIBIT B
5
EXHIBIT "B-1"
[Image]
FILTERED ESTIMATE EXHIBIT "B-1" 12:33 PM 4/23/2004
TENANT NAME: Genaissance PROJECT #: _________________
BLD. LOCATION: 000 Xxxxxxxxx Xxxx G/L ACCOUNT: _________________
PROPOSAL DATE: 3/15/2004 MOVE-IN
REVISED (#) DATE: 3/22/2004 DATE: _________________
PROJECT MANGER: Xxxx Xxxxx
ARCH. DWG. BY: IS Design
DRAWING DATE: 3/11/2004 Total Cost: $ 1,219,310.92
BUILDING DATE: Office Fee: $ 85,351.76
OFFICE - RSF: 37,072 Project Total: $ 1,303,282.79 #########
WAREHOUSE - RSF: COST/RSF: $ 35.16
TOTAL - RSF: 37,072
Based upon the "Contract Documents", DUKE REALTY LIMITED
PARTNERSHIP ("Duke") agrees to perform the following "Work"
COST CODE JOB COST UNIT GRAND COST/
CSI TASK ITEM CATEGORY DESCRIPTION QTY UNIT PRICE TOTAL DIV. TOTALS RSF
---------------------------------------------------------------------------------------------------------------------------------
TIME PERIOD REQUIREMENTS
BID PROCESS 2 WKS
ARCHITECTURAL/MECHANICAL/ 4 WKS
ELECTRICAL/PLUMBING DESIGN
BUILDING PERMIT 6 WKS
CONSTRUCTION 14 WKS
PUNCH LIST COMPLETION 4 WKS
01 00 000 GENERAL CONDITIONS
01 05 000 PERMITS/FEES $ 9,268.00 $ 0.25
01 05 002 O BUILDING PERMIT - TOWN OF 37,072 SF $ 0.25 $ 9,268.00
MORRISVILLE
01 10 000 INSURANCE $ 21,000.00 $ 0.57
01 10 002 O LIABILITY INSURANCE (1.5% 1 LS $ 21,000,00 $ 21,000.00
OF VOLUME)
01 15 000 SUPERVISION $ 42,400.00 $ 1.14
01 15 002 L SUPERINTENDENT W/TRUCK 16 WKS $ 1,350.00 $ 21,600.00
01 15 010 L PROJECT MANAGER 16 WKS $ 987.50 $ 15,800.00
01 15 012 L ADMINISTRATIVE ASSISTANT 1 LS $ 5,000.00 $ 5,000.00
01 25 000 TEMPORARY UTILITIES $ 5,307.20 $ 0.14
01 25 004 O TEMPORARY UTILITY USAGE 37,072 SF $ 0.10 $ 3,707.20
01 25 012 O JOB TOILETS 16 WKS $ 100.00 $ 1,600.00
01 35 000 EQUIPMENT & MISCELLANEOUS $ 3,707.20 $ 0.10
BUILDING COMPONENTS
01 35 014 O MISCELLANEOUS MATERIALS 37,072 SF $ 0.10 $ 3,707.20
AND PROTECTION
01 50 000 PROJECT CLEAN-UP $ 18,250.40 $ 0.49
01 50 002 O DAILY CLEAN UP 37,072 SF $ 0.10 $ 3,707.20
01 50 004 O FINAL CLEAN UP 37,072 SF $ 0.10 $ 3,707.20
01 50 010 O DUMPSTER RENTAL 14 WK $ 650.00 $ 9,100.00
01 60 012 O CARPET EXTRACTION TRUCK 6,200 SF $ 0.28 $ 1,736.00
MOUNTED EQUIPMENT
01 60 000 DESIGN FEES $ 39,425.60 $ 1.06
01 60 016 O ARCHITECTURAL CD'S-OFFICE 37,072 SF $ 0.85 $ 31,511.20
01 60 018 O INTERIOR SPACE PLANNING 37,072 SF $ 0.20 $ 7,414.40
01 60 032 O BLUEPRINTS/PRINTING COSTS 1 LS $ 500.00 $ 500.00
=================================================================================================================================
01 99 999 TOTAL DIVISION 1 $ 139,358.40 $ 139,358.40 $ 3.76
02 00 000 DEMOLITION/SITEWORK
02 05 000 DEMOLITION $ 25,015.70 $ 0.67
02 05 000 S DEMO DOOR UNITS 10 EA $ 75.00 $ 750.00
02 05 002 S REMOVE AND REINSTALL 37,000 SF $ 0.07 $ 2,590.00
ESCHUTON RINGS
02 05 002 S REMOVE CEILING TILE & GRID 21,675 SF $ 0.30 $ 6,502.50
02 05 002 S REMOVE EXISTING 9'0" HIGH 309 LF $ 10.00 $ 3,090.00
DRYWALL PARTITIONS.
02 05 002 S REMOVE EXISTING 10'0" HIGH 144 LF $ 13.00 $ 1,872.00
DRYWALL PARTITIONS.
02 05 002 S REMOVE EXISTING VCT. 3,000 SF $ 0.65 $ 1,950.00
02 05 002 S REMOVE EXISTING CARPET AND 24,684 SF $ 0.30 $ 7,405.20
BASE.
02 05 002 S REMOVE RAISED FLOORING 535 SF $ 1.60 $ 856.00
=================================================================================================================================
02 99 999 TOTAL DIVISION 2 $ 25,015.70 $ 25,015.70 $ 0.67
1
Based upon the "Contract Documents", DUKE REALTY LIMITED
PARTNERSHIP ("Duke") agrees to perform the following "Work"
COST CODE JOB COST UNIT GRAND COST/
CSI TASK ITEM CATEGORY DESCRIPTION QTY UNIT PRICE TOTAL DIV. TOTALS RSF
---------------------------------------------------------------------------------------------------------------------------------
03 00 000 CONCRETE
03 20 000 CONCRETE WORK $ 1,350.00 $ 0.04
03 20 002 S EXCAVATE AND INSTALL 4" 150 SF $ 9.00 $ 1,350.00
THICK CONCRETE PAD
=================================================================================================================================
03 99 999 TOTAL DIVISION 3 $ 1,350.00 $ 1,350.00 $ 0.04
06 00 000 CARPENTRY
06 10 000 FINISH CARPENTRY/MILLWORK $ 168,886.00 $ 4,56
06 10 002 S MELAMINE SHELF & SUPPORT 2 512 LF $ 48.00 $ 24,576.00
ROWS
06 10 002 S EPOXY RESIN COUNTER TOPS 508 LF $ 90.00 $ 45,720.00
36" WIDE (Budget Allowance)
06 10 002 S EXPOXY RESIN COUNTER TOPS 290 LF $ 125.00 $ 36,250.00
60" WIDE W/SUPPORTS
(Budget Allowance)
06 10 002 S BASE CABINETS - METAL 470 LF $ 120.00 $ 56,400.00
(Budget Allowance)
06 10 002 S PLASTIC LAMINATE BASE/WALL 18 LF $ 330.00 $ 5,940.00
CABINETS WITH COUNTER TOP
FOR BREAK/FILE
=================================================================================================================================
06 99 999 TOTAL DIVISION 6 $ 168,886.00 $ 168,886.00 $ 4.56
07 00 000 MOISTURE PROTECTION
07 40 000 CANOPIES $ 3,000.00 $ 0.08
07 40 002 S METAL CANOPY FOR COMPRESSOR 1 AL $ 3,000.00 $ 3,000.00
=================================================================================================================================
07 99 999 TOTAL DIVISION 7 $ 3,000.00 $ 3,000.00 $ 0.08
08 00 000 DOORS/HARDWARE/WINDOWS
08 05 000 WOOD DOORS/FRAMES $ 32,035.00 $ 0.86
08 05 004 S 3' X 8' SOLID CORE FIELD 10 EA $ 380.00 $ 3,800.00
FINISHED XXXXX ENTRY DOOR
WITH STANDARD HINGES AND A
PRE-FINISHED METAL FRAME.
08 05 004 S 3' X 8' SOLID CORE FIELD 1 EA $ 680.00 $ 680.00
FINISHED BIRCH ENTRY DOOR
WITH STANDARD HINGES AND A
HOLLOW METAL FRAME.45
MINUTE RATED
08 05 004 S 6' X 8' SOLID CORE FIELD 1 EA $ 1,410.00 $ 1,410.00
FINISHED BIRCH ENTRY DOOR
WITH STANDARD HINGES AND A
HOLLOW METAL FRAME. 45
MINUTE RATED W/CLOSURE
08 05 004 S 3' X 8' HOLLOW METAL 1 EA $ 770.00 $ 770.00
INTERIOR SINGLE DOOR UNIT
W/45 MIN RATING
08 05 004 S 5' X 8' HOLLOW METAL 1 EA $ 1,490.00 $ 1,490.00
INTERIOR SINGLE DOOR UNIT.
W/45 MIN RATING
08 05 004 S 5' X 8" HOLLOW METAL 13 EA $ 950.00 $ 12,350.00
INTERIOR SINGLE DOOR XXXX
00 00 000 X 3' X 8" HOLLOW METAL 6 EA $ 470.00 $ 2,820.00
INTERIOR SINGLE DOOR
08 05 004 S RELOCATE EXISTING 3 EA $ 190.00 $ 570.00
DOORS/FRAMES/
HARDWARE AND SIDELITES
08 05 004 S RELOCATE EXISTING 1 EA $ 510.00 $ 510.00
DOORS/FRAMES/
HARDWARE AND SIDELITES FOR
CONF ROOM W. NEW R HAND
DOOR
08 05 004 S SIDELITE AND ALUMINUM 160 SF $ 22.00 $ 3,520.00
FRAME W/ 1/4" CLEAR
TEMPERED GLASS
08 05 004 S 24" X 36" GLASS KIT IN DOOR 14 EA $ 260.00 $ 3,640.00
08 05 004 S 6" X 24" GLASS KIT IN DOOR 5 EA $ 95.00 $ 475.00
08 05 000 HARDWARE (LOCK/KEYS) $ 11,158.00 $ 0.30
08 05 006 S 93K LEVER HANDLE LOCKSET 4 EA $ 169.00 $ 676.00
(HEAVE DUTY)
08 05 006 S 73K LEVER HANDLE LOCKSET 32 EA $ 110.00 $ 3,520.00
(MEDIUM DUTY)
08 05 006 S 73K LEVER HANDLE PASSAGE 20 EA $ 70.00 $ 1,400.00
(MEDIUM DUTY)
08 05 006 S ELECTRIC STRIKE 15 EA $ 260.00 $ 3,900.00
08 05 006 S COMBINATED CORES WITH NO 1 EA $ 62.00 $ 62.00
HARDWARE PURCHASED
08 05 006 S COMBINATED CORES WITH 32 EA $ 50.00 $ 1,600.00
(6)EA TENANT KEYS
08 10 000 OVERHEAD DOORS $ 300.00 $ 0.01
2
Based upon the "Contract Documents", DUKE REALTY LIMITED
PARTNERSHIP ("Duke") agrees to perform the following "Work"
COST CODE JOB COST UNIT GRAND COST/
CSI TASK ITEM CATEGORY DESCRIPTION QTY UNIT PRICE TOTAL DIV. TOTALS RSF
---------------------------------------------------------------------------------------------------------------------------------
08 10 002 S REFURBIS OVERHEAD DOOR 1 EA $ 300.00 $ 300.00
08 20 000 GLASS & GLAZING $ 1,368.00 $ 0.04
08 20 002 S EXTERIOR STOREFRONT 36 SF $ 38.00 $ 1,368.20
FRAMING TO CONSISTS OF 1
3/4" X 4 1/2" CLEAR OR
=================================================================================================================================
08 99 999 TOTAL DIVISION 8 $ 44,861.00 $ 44,861.00 $ 1.21
09 00 000 FINISHES
09 10 000 S GENERAL CONSTRUCTION $ 146,858.00 $ 3.96
09 10 006 S EXTEND EXISTING WALL TO 100 LF $ 50.00 $ 5,000.00
DECK
09 10 006 S DRYWALL PARTITIONS 10' 0" 218 LF $ 30.00 $ 6,540.00
XXXX/00 XX. 0 0/0"
XXX-XX/00" XX/0/0" DRYW.
09 10 006 S DRYWALL PARTITIONS 14' 0" 1,098 LF $ 70.00 $ 76,860.00
XXXX/00 XX. 0 0/0"
XXX-XX/00 "OC/5/8" DRYW.
09 10 006 S RAISE WALL IN RECEPTION 58 LF $ 9.00 $ 522.00
FOR NEW CEILING
09 10 006 S ALUMINUM CAPS AT WINDOW 6 EA $ 50.00 $ 300.00
MULLION
09 10 006 S FIRE SPRAY AT RATED WALL 326 LF $ 7.00 $ 2,282.00
09 10 006 S PATCH AND POINT UP 1 AL $ 3,000.00 $ 3,000.00
09 10 006 S STANDARD 2' X 4' ACOUSTIC 20,400 SF $ 1.25 $ 25,500.00
CEILING TILE W/GRID @ 10'
09 10 006 S UPGRADE TO 2 X 4 VINYL 20,400 SF $ 0.32 $ 6,528.00
WRAPPED
09 10 006 S REPLACE TILE IN OFFICE 10,040 SF $ 0.85 $ 8,534.00
AREA W/ 2X4 CORTEGA
09 10 006 S ADD FOR 2X4 TEGULAR IN 1 ADD $ 6,980.00 $ 6,980.00
OFFICE AREA
09 10 006 S REMOVE AND REINSTALL 7,560 SF $ 0.50 $ 3,780.00
EXISTING CEILING PADS
09 10 006 RAISE CEILING W/2X2 480 SF $ 2.15 $ 1,032.00
TEGULAR TILE IN RECEPTION
09 15 000 S INTERIOR WALL FINISHES $ 24,094.65 $ 0.65
09 15 002 S PAINT DOORS AND FRAMES 4 EA $ 85.00 $ 340.00
WITH TWO COATS OF ENAMEL
FINISH
09 15 002 S PAINT DOOR LEAFS ONLY WITH 42 EA $ 50.00 $ 2,100.00
TWO COATS OF ENAMEL FINISH
09 15 002 S PAINT DOOR FRAMES ONLY 2 EA $ 50.00 $ 100.00
WITH TWO COATS OF ENAMEL
FINISH
09 15 002 S PAINT DRYWALL WITH TWO 43,770 SF $ 0.25 $ 10,723.65
COATS OF LATEX PAINT
09 15 002 S PAINT DRYWALL WITH TWO 14,950 SF $ 0.38 $ 5,681.00
COATS OF EGGSHELL
09 15 002 S ADD TO PAINT LAB WALLS 1 ADD $ 5,150.00 $ 5,150.00
WITH EPXY INSTEAD OF
EGGSHELL
09 25 000 FLOOR FINISHES $ 103,048.70 $ 2.78
09 25 002 S STANDARD CARPET TO BE 7,456 SF $ 1.75 $ 13,048.00
DIRECT GLUE DOWN LEVEL
LOOP (PATCRAFT DEADLINE)
OR LEVEL LOOP (DESIGN
WEAVE CARAVAN) THROUGHOUT
OFFICE AREA
09 25 002 S UPGRADED CARPET TO BE 53 SY $ 30.00 $ 1,590.00
DIRECT GLUE DOWN 36 OZ.
NYLON CUT PILE THROUGHOUT
OFFICE AREA (ALLOWANCE
$18.00/SQ. YD. INSTALLED)
09 25 002 S 4" VINYL COVE BASE 4,382 LF $ 1.00 $ 4,382.00
09 25 002 S STANDARD 1/8" COMMERCIAL 1,684 SF $ 1.50 $ 2,526.00
VINYL COMPOSITION TILE
09 25 002 S JOHNSITE ANTHEM SHEET 17,341 SF $ 4.70 $ 81,502.70
FLOORING CHEMICALLY WELDED
09 30 000 RESTROOM FINISH ALLOWANCE $ 3,000.00 $ 0.08
09 30 002 S REFURBISH RESTROOM (PAINT, 2 AL $ 1,500.00 $ 3,000.00
FIX HARDWARE, CAULK,
CEILING TILE, ETC.)
=================================================================================================================================
09 99 999 TOTAL DIVISION 9 $ 277,001.35 $ 277,001.35 $ 7.47
10 00 000 SPECIALTIES
10 05 000 TOILET PARTITIONS & $ 150.00 $ 0.00
ACCESSORIES
10 05 002 S GRAB BAR 4 EA $ 37.50 $ 150.00
10 20 000 s SIGNAGE AND GRAPHICS $ 1,795.00 $ 0.05
10 20 002 S BUILDING DIRECTORY 5 EA $ 125.00 $ 625.00
10 20 002 S INTERIOR SIGNAGE 18 EA $ 65.00 $ 1,170.00
10 30 000 FIRE EXTINGUISHERS/CABINETS $ 2,070.00 $ 0.06
3
Based upon the "Contract Documents", DUKE REALTY LIMITED
PARTNERSHIP ("Duke") agrees to perform the following "Work"
COST CODE JOB COST UNIT GRAND COST/
CSI TASK ITEM CATEGORY DESCRIPTION QTY UNIT PRICE TOTAL DIV. TOTALS RSF
---------------------------------------------------------------------------------------------------------------------------------
10 30 002 S WALL MOUNT FIRE 18 EA $ 115.00 $ 2,070.00
EXTINGUISHERS WITH NO
CABINET
=================================================================================================================================
10 99 999 TOTAL DIVISION 10 $ 4,015.00 $ 4,015.00 $ 0.11
12 00 000 FURNISHINGS
12 05 000 WINDOW TREATMENTS $ 800.00 $ 0.02
12 05 002 S HORIZONTAL MINI BLINDS 1 AL $ 800.00 $ 800.00
=================================================================================================================================
12 99 999 TOTAL DIVISION 12 $ 800.00 $ 800.00 $ 0.02
15 00 000 MECHANICAL
15 05 000 SPRINKLERS $ 56,876.00 $ 1.53
15 05 008 S ADD AND RELOCATE SPRINKLER 1 LS $ 55,976.00 $ 55,976.00
HEADS TO MEET CODE FOR
ORDINARY HAZARD
OCCUPANCY. INSTALL FM200
SYSTEM IN DATA AND
ARCHIVAL ROOM. ENGINEERED
DRAWINGS
15 05 008 S RAISE SPRINKLERS RECEPTION 1 LS $ 900.00 $ 900.00
15 10 000 PLUMBING $ 182,532.47 $ 4.92
THE FOLLOWING PLUMBING
FIXTURES INCLUDE ALL
NECESSARY CONCRETE SAWCUT
AND REMOVAL/WASTE/WATER
AND VENTS
15 10 004 S MISC. PLUMBING REPAIR AND 1 AL $ 2,100.00 $ 2,100.00
REFURBISH AND EXISTING
BATHROOMS
15 10 004 S SINGLE BOWL, STAINLESS 1 EA $ 0.01 $ 0.01
STEEL SINK AND FAUCET
15 10 004 S DISHWASHER HOOK-UP 1 EA $ 0.01 $ 0.01
15 10 004 S COFFEE MAKER AND ICE MAKER 1 EA $ 0.01 $ 0.01
HOOK-UP
15 10 000 X 000 XXXXXX ELECTRIC WATER 1 EA $ 0.01 $ 0.01
HEATER
15 10 004 S HOT WATER CIRCULATING PUMP 1 EA $ 0.01 $ 0.01
15 10 004 S TEMPERING VALVE FOR 1 EA $ 0.01 $ 0.01
EMERGENCY SHOWERS
15 10 004 S TEMPERED WATER CIRCULATING 1 EA $ 0.01 $ 0.01
PUMP
15 10 004 S 1.5" BACKFLOW PREVENTER 1 EA $ 0.01 $ 0.01
FOR LAB WATER
15 10 004 S SINGLE BOWL, STAINLESS 9 EA $ 0.01 $ 0.09
STEEL LAB SINK AND FAUCET
15 10 004 S EMERGENCY EYEWASH/SHOWER 8 EA $ 0.01 $ 0.08
XXXX
00 00 000 X XXXXX XXXXX 0 XX $ 0.01 $ 0.08
15 10 004 S 1/2" DUAL AIR, VACUM AND 14 EA $ 0.01 $ 0.14
NITROGEN XXXXX
00 00 000 X XXXXXX AIR COMPRESSOR 1 AL $ 20,000.00 $ 20,000.00
22CFM@100 PSIG W/120 GAL
TANK
15 10 004 S DUPLEX VACUM PUMP 1 AL $ 11,700.00 $ 11,700.00
45CFM@.5torr W/80 Gal TANK
15 10 004 S ALLOWANCE FOR NITROGEN 1 AL $ 5,800.00 $ 5,800.00
EQUIPMENT ($5800)
15 10 004 S PRICE FOR ABOVE INCLUDING 1 LS $ 142,932.00 $ 142,932.00
FLOOR CUTTING AND PATCHING
15 15 000 HVAC $ 118,400.00 $ 3.19
15 15 002 S REWORK AND INSTALL NEW 1 LS $ 103,400.00 $ 103,400.00
DUCTWORK AS NECESSARY TO
CONFORM TO NEW FLOOR PLAN,
FURNISH AND INSTALL NEW
CEILING DIFFUSERS AND RETURN
AIR GRILLES TO CONFORM TO NEW
FLOOR PLAN, FURNISH AND
INSTALL WALL MOUNTED
THERMOSTATS FOR EACH SYSTEM AS
REQUIRED, STARTUP AND LABEL
UNITS, PERFORM A CERTIFIED AIR
TEST AND BALANCE, PROVIDE A
CERTIFIED AIR TEST AND BALANCE
15 15 010 S 5 TON AUXILIARY LIEBERT 1 EA $ 15,000.00 $ 15,000.00
COOLING FOR SERVER ROOM
=================================================================================================================================
15 99 999 TOTAL DIVISION 15 $ 357,808.47 $ 357,808.47 $ 9.65
16 00 000 ELECTRICAL
16 05 000 LIGHTING-OFFICE $ 29,715.00 $ 0.80
4
Based upon the "Contract Documents", DUKE REALTY LIMITED
PARTNERSHIP ("Duke") agrees to perform the following "Work"
COST CODE JOB COST UNIT GRAND COST/
CSI TASK ITEM CATEGORY DESCRIPTION QTY UNIT PRICE TOTAL DIV. TOTALS RSF
---------------------------------------------------------------------------------------------------------------------------------
16 05 012 S 2' X 4' LAY-IN (4)-LAMP 40 EA $ 140.00 $ 5,600.00
LIGHT FIXTURE W/ACRYLIC
LENS
16 05 012 S RELOCATE EXISTING 2' X 4' 150 EA $ 70.00 $ 10,500.00
LAY-IN LIGHT FIXTURE
16 05 012 S RELAMP EXISTING FIXTURE TO 80 EA $ 20.00 $ 1,600.00
REMAIN
16 05 012 S REWORK EXISTING LIGHT 20 EA $ 60.00 $ 1,200.00
CIRCUIT
16 05 012 S 8' LOW VOLTAGE TRAK LIGHT 1 EA $ 825.00 $ 825.00
WITH 6 STANDARD FIXTURES
16 05 012 S STANDARD RECESSED 150 WATT 10 EA $ 200.00 $ 2,000.00
DOWN LIGHT
16 05 012 S STANDARD RECESSED 150 WATT 2 EA $ 265.00 $ 530.00
DIRECTIONAL WALL WASHER
16 05 012 S STANDARD RECESSED 16 EA $ 250.00 $ 4,000.00
FLUORESCENT DOWN LIGHT
16 05 012 S DOUBLE SINGLE POLE LIGHT 30 EA $ 80.00 $ 2,400.00
SWITCH
16 05 012 S DOUBLE THREE WAY LIGHT 6 EA $ 90.00 $ 540.00
SWITCH
16 05 000 X XXXXXX XXXX XXX LIGHT 2 EA $ 110.00 $ 220.00
SWITCH
16 05 012 S SINGLE POLE 1500 WATT 2 EA $ 150.00 $ 300.00
DIMMER SWITCH (UP TO 10
LIGHTS/SWITCH)
16 05 000 POWER-OFFICE $ 88,172.00 $ 2.38
16 05 016 S DISCONNECTION FOR 1 LS $ 7,000.00 $ 7,000.00
DEMOLITION
16 05 016 S STANDARD 15 AMP/120 VOLT 40 EA $ 80.00 $ 3,200.00
DUPLEX RECEPTACLE
16 05 016 S STANDARD 15 AMP/120 VOLT 1 EA $ 80.00 $ 80.00
DUPLEX RECEPTACLE
16 05 016 S DOUBLE DUPLEX 20 AMP/120 6 EA $ 90.00 $ 540.00
VOLT RECEPTACLE
16 05 016 S DEDICATED 20 AMP/120 VOLT 28 EA $ 220.00 $ 6,160.00
DUPLEX RECEPTACLE
16 05 016 S DISHWASHER CIRCUIT/SWITCH 1 EA $ 220.00 $ 220.00
AND CONNECTION
16 05 016 S DEDICATED DOUBLE DUPLEX 20 80 EA $ 220.00 $ 17,600.00
AMP/120 VOLT RECEPTACLE
16 05 016 S 220 V ON GEN OR UPS 16 EA $ 300.00 $ 4,800.00
16 05 000 X 000 V ON GEN 6 EA $ 300.00 $ 1,800.00
16 05 016 S SO CORD DROP W/SR 36 EA $ 110.00 $ 3,960.00
RECEPTACLE
16 05 016 S FURNISH AND INSTALL 1 LS $ 38,252.00 $ 38.252.00
WIREMOLD 5500 WITH THE
FOLLOWING ITEMS: 140
Dedicated duplex outlets
wired to either gen or ups
and rough in and stub up
70 spots for data
16 05 016 S FURNITURE POWER JUNCTION 4 EA $ 350.00 $ 1,400.00
BOX WITH (3) CIRCUIT/ (1)
SHARED NEUTRAL/ (1)
GROUND/PARTITION
CONNECTION/ AND (1)
PHONE/DATA OPENING.
TENANTS FURNITURE TO BE A
MINIMUM (5) WIRE SYSTEM.
POWER TO ENERGIZE UP TO
(6) FURNITURE STATIONS
16 05 016 S WALL PARTITION PHONE/DATA 30 EA $ 35.00 $ 1,050.00
16 05 016 S RESTROOM EXHAUST FAN 1 EA $ 260.00 $ 260.00
16 05 016 S HOT WATER HEATER HOOK-UP 1 EA $ 725.00 $ 725.00
WITH A 480 VOLT CIRCUIT
16 05 016 S HOOKUP AIR COMPRESSOR WITH 1 EA $ 1,125.00 $ 1,125.00
NEMA DISCONNECT
16 05 000 FIRE SAFETY DEVICES-OFFICE $ 34,840.00 $ 0.94
16 05 020 S EXIT AND EMERGENCY LIGHT 10 EA $ 200.00 $ 2,000.00
COMBO W/1 1/2 HR. BATTERY
BACK-UP
16 05 020 S EXIT LIGHT FIXTURE W/1 1/2 10 EA $ 150.00 $ 1,500.00
HR. BATTERY BACK-UP
16 05 020 S EMERGENCY LIGHT FIXTURE 40 EA $ 150.00 $ 6,000.00
W/1 1/2 HR. BATTERY BACK-UP
16 05 020 S HORN/STROBE FIRE ALARM UNIT 28 EA $ 290.00 $ 8,120.00
16 05 020 S STROBE FIRE ALARM UNIT 2 EA $ 285.00 $ 570.00
16 05 020 S FIRE ALARM PULL STATION 5 EA $ 250.00 $ 1,250.00
16 05 020 S SMOKE DETECTOR FOR ROOM 2 EA $ 300.00 $ 600.00
16 05 020 S RELAY CONTROL MODULES 20 EA $ 200.00 $ 4,000.00
16 05 020 S SMOKE DETECTOR FOR NEW 12 EA $ 500.00 $ 6,000.00
HEAT PUMP XXXX
00 00 000 X XXXXXXX POWER SUPPLY 1 EA $ 1,000.00 $ 1,000.00
16 05 020 S FACP PANEL 1 EA $ 3,000.00 $ 3,000.00
16 05 020 S TESTING AND CHECKOUT 1 EA $ 800.00 $ 800.00
16 05 000 SERVICE AND DISTRIBUTION $ 44,488.00 $ 1.20
16 05 024 S ADD ADDITIONAL PANELS TO 1 LS $ 26,338.00 $ 26,338.00
EXISTING GEAR FOR UPS AND
GENERATOR CIRCUITS
5
Based upon the "Contract Documents", DUKE REALTY LIMITED
PARTNERSHIP ("Duke") agrees to perform the following "Work"
COST CODE JOB COST UNIT GRAND COST/
CSI TASK ITEM CATEGORY DESCRIPTION QTY UNIT PRICE TOTAL DIV. TOTALS RSF
---------------------------------------------------------------------------------------------------------------------------------
16 05 024 S ELEC. DRAWING FEES/PERMITS 1 LS $ 18,150.00 $ 18,150.00
AND INSPECTIONS.
(INDUSTRIAL
OFFICE/WAREHOUSE PROJECTS)
=================================================================================================================================
16 99 999 TOTAL DIVISION 16 $ 197,215.00 $ 197,215.00 $ 5.32
TOTAL COST: $ 1,219,310.92 $ 1,219,310.92 $ 32.89
18 00 000 OVERHEAD & FEE
18 05 002 O PROJECT OVERHEAD & FEE 7.00% $ 83,971.87 $ 83,971.87 $ 2.27
=================================================================================================================================
18 99 999 TOTAL DIVISION 18 $ 83,971.87 $ 83,971.87 $ 2.27
=================================================================================================================================
PROJECT TOTALS: $ 1,303,282.79 $ 1,303,282.79
=================================================================================================================================
TOTAL COST/RSF $ 35.16 $ 35.16 $ 35.16
EXCLUSIONS/QUALIFICATIONS/
ALTERNATIVES
PRICING IS BUDGETARY
WAITING FINAL SCOPE BASED
ON USING NEW RTUs
ONLY 3.5% FEE ON DESIGN
COSTS
=================================================================================================================================
*Budgetary only,
subject to change
in accordance
CUSTOMER TO PAY: $ 603,282.79 with the lease
IF APPLICABLE, LANDLORD TO PAY: $ 700,000.00
Customer will pay to Duke the "Lump sum as stipulated above" (the "Contract
Sum").
6
INDUSTRIAL LEASE
EXHIBIT C
RULES AND REGULATIONS
1. The sidewalks, common areas, and public portions of the Building, such
as entrances, passages, courts, elevators, vestibules, stairways, corridors or
halls, and the streets, alleys or ways surrounding or in the vicinity of the
Building shall not be obstructed by Tenant, even temporarily, or encumbered by
Tenant or used for any purpose other than ingress to and egress from the
Premises.
2. Except for any approved signage, no awnings or other projections shall
be attached to the outside walls of the Building.
3. Except as provided in the Lease, no sign, advertisement, notice or
other lettering shall be exhibited, inscribed, painted or affixed by Tenant on
any part of the outside of the Premises or Building unless approved by Landlord.
Signs on entrance doors shall, at Tenant's expense, be inscribed, painted or
affixed for each tenant by sign makers approved by Landlord. In the event of the
violation of the foregoing by Tenant, Landlord may remove same without notice to
Tenant or any liability therefor, and may charge the expense incurred by such
removal to Tenant.
4. The sashes, sash doors, skylights, windows, heating, ventilating and
air conditioning vents and doors that reflect or admit light and air into the
halls, passageways or other public places in the Building shall not be covered
or obstructed by Tenant.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the public halls,
corridors, or vestibules without the prior written consent of Landlord.
6. The bathrooms and plumbing fixtures shall not be used for any purposes
other than those for which they were designed, and no sweepings, rubbish, rags,
or other substances shall be thrown therein. All damages resulting from any
misuse of the bathrooms or fixtures shall be the responsibility of Tenant.
7. Tenant shall not in any way deface any part of the Premises or the
Building.
8. No bicycles, vehicles, or animals of any kind shall be brought into or
kept in or about the Premises, or in the Building but Tenant may keep vehicles
in the parking lot adjacent to the Building. No cooking shall be done or
permitted by Tenant on the Premises except in conformity with all applicable
laws, statutes, regulations and ordinances and then only in the area designated
as a kitchen, if any, on the Premises of Tenant, which is to be primarily used
by Tenant's employees for heating beverages, warming food in a microwave and
light snacks. Tenant shall not cause or permit any unusual or objectionable
odors to be produced upon or permeate from the Premises.
9. All desks shall be serviced by chairs with rollers that are equipped
with floor mats underneath each chair.
1
INDUSTRIAL LEASE
10. No space in the Building shall be used for the sale of merchandise,
goods, or property of any kind at auction.
11. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of the Building or
neighboring buildings or premises or those having business with them, whether by
the use of any musical instrument, radio, talking machine, unmusical noise,
whistling, singing, or in any other way. Tenant shall not throw anything out of
the doors, windows or skylights or down the passageways.
12. Neither Tenant, nor any of Tenant's servants, employees, agents,
visitors, or licensees, shall at any time bring or keep upon the Leased Premises
any inflammable, combustible or explosive fluid, or chemical substance, other
than reasonable amounts of cleaning fluids or solvents required in the normal
operation of Tenant's business offices, and except as expressly allowed in this
Lease.
13. No additional locks or bolts of any kind shall be placed upon any of
the doors, walls, accessways, or windows by Tenant, nor shall any changes be
made in existing locks or the mechanism thereof, without the prior written
approval of Landlord, which approval shall not be unreasonably withheld and
unless and until a duplicate key or access card, as applicable, is delivered to
Landlord. Tenant shall, upon the termination of its tenancy (i) return to
Landlord all keys for the Premises and for any area of the Building, or common
areas, either furnished to, or otherwise procured by Tenant, (ii) restore the
locks, walls, accessways, windows, and doors to their original condition on the
date of this Lease by removing any security measures installed by Tenant,
repairing any damage to the Premises or to the Building as a result of the
removal, and (iii) in the event of the loss of any keys furnished to Tenant by
Landlord, Tenant shall pay to Landlord the cost thereof.
14. Tenant shall not overload any floor.
15. Tenant shall not occupy or permit any portion of the Premises to be
used for the possession, storage, manufacture or sale of liquor, illegal
narcotics, or tobacco in any form.
16. INTENTIONALLY OMITTED.
17. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
18. INTENTIONALLY OMITTED.
19. Canvassing, soliciting, and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
20. All paneling, and other wood products not considered furniture shall
be of fire retardant materials.
21. No smoking is permitted in the Premises, or in the Building. Smoking
is permitted outside the Building in designated smoking areas. All cigarette
butts and other refuse should be placed in designated containers.
2
INDUSTRIAL LEASE
22. No weapons concealed or visible are permitted in the Premises, in the
Building, or on the Land.
23. Any outdoor patio, exterior generator area if Tenant itself installs a
generator (other than the existing generator located at the Building as of the
date of this Lease), or other open area used exclusively by Tenant must be
screened on all sides using materials in form, substance, coloring, design, and
quality are subject to the prior approval of Landlord, and must be designed and
constructed in accordance with plans and specifications that are subject to the
prior approval of Landlord.
Whenever the above rules conflict with any of the rights or obligations of
Tenant pursuant to the provisions of the Lease, the provisions of the Lease
shall govern. Landlord shall not be responsible to Tenant or liable for the
non-observance or violation of any of these Rules and Regulations by any other
tenant, provided however Landlord hereby agrees to uniformly enforce the Rules
and Regulations against all tenants in the Building.
3
INDUSTRIAL LEASE
EXHIBIT D
LETTER OF UNDERSTANDING
Duke Realty Limited Partnership, an Indiana limited partnership
Attention:_________________________________
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
RE:
Lease Agreement between Duke Realty Limited Partnership, an Indiana
limited partnership ("Landlord") and________________("Tenant") for the
Leased Premises located at ____________________ (the "Leased
Premises"), dated, _________ (the "Lease"). Lease ID No.____________
Dear Sir or Madame:
The undersigned on behalf of Tenant hereby certifies to Landlord as
follows:
1. The Commencement Date under the Lease is ____________________.
2. The rent commencement date is ______________________.
3. The expiration date of the Lease is ____________________.
4. The Lease (including amendments if any) is the entire agreement
between Landlord and Tenant as to the leasing of the Leased Premises and is in
full force and effect.
5. The Landlord has completed the improvements designated as Landlord's
obligation under the Lease (excluding punch-list items as agreed upon by the
Landlord and Tenant), if any, and Tenant has accepted the Leased Premises as of
the Commencement Date, subject to the terms of the Lease.
6. To the best of the undersigned's knowledge, there are no uncured
events of default by either Tenant or Landlord under the Lease.
IN WITNESS WHEREOF, the undersigned has caused this Letter of Understanding
to be executed this _____ day of ___________, 200__.
GENAISSANCE PHARMACEUTICALS, INC.
By:
--------------------------------------
Printed Name:
----------------------------
Title:
-----------------------------------
1
INDUSTRIAL LEASE
Accepted and acknowledged
this _____ day of ________, 2004 by
DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Corporation
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
2
INDUSTRIAL LEASE
EXHIBIT E
TENANT'S SIGNAGE SPECIFICATIONS
[Image]
INDUSTRIAL LEASE
EXHIBIT F
IRREVOCABLE LETTER OF CREDIT
SPECIMEN
COMERICA BANK HAS PREPARED THIS DRAFT UPON THE REQUEST AND BASED
ON THE INFORMATION PROVIDED. NO REPRESENTATION AS
TO THE ACCURACY OR WILLINGNESS FOR COMMITMENT IS
MADE BY COMERICA BANK TO ISSUE THIS LETTER OF
CREDIT IN THIS OR ANY OTHER FORM.
******************************************************************************
BLTC
TELEX NO: 3772134 MNB INTL DET COMERICA BANK
FAX NO: 000-000-0000 INTERNATIONAL TRADE SERVICES
SWIFT: MNBDUS6S LAX 0000 XXXXXXXXX XXX., 0XX XXXXX
XX XXXXXXX, XX 00000
DATE OF ISSUE: APRIL , 2004
BENEFICIARY:
DUKE REALTY LIMITED PARTNERSHIP
0000 XXXXXXXXXXX XXXX, XXX. 000
XXXXXX, XX 00000
GENTLEMEN:
AT THE REQUEST AND ON THE INSTRUCTIONS OF OUR CUSTOMER, GENAISSANCE
PHARMACEUTICALS, INC., 0 XXXXXXX XXXX, XXX XXXXX, XX. 00000 (THE "APPLICANT"),
WE HEREBY ESTABLISH THIS IRREVOCABLE LETTER OF CREDIT NO. XXXXX-XX ("THE LETTER
OF CREDIT") IN THE AMOUNT OF $213,534.72 (TWO HUNDRED THIRTEEN THOUSAND FIVE
HUNDRED THIRTY FOUR AND 72/100 U.S. DOLLARS) IN YOUR FAVOR. THIS LETTER OF
CREDIT IS
1
INDUSTRIAL LEASE
EFFECTIVE IMMEDIATELY AND EXPIRES ON FEBRUARY 28, 2005. THIS LETTER OF CREDIT
WILL BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ADDITIONAL ONE (1) YEAR
PERIODS UNLESS WE PROVIDE AT LEAST THIRTY (30) DAYS NOTICE TO YOU AT BOTH OF THE
FOLLOWING ADDRESSES: DUKE REALTY LIMITED PARTNERSHIP, 0000 XXXXXXXXXXX XXXX,
XXXXX 000, XXXXXX, XXXXXXX 00000, ATTENTION GENERAL COUNSEL AND DUKE REALTY
LIMITED PARTNERSHIP, 000 XXXX 00XX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XXXXXXX
00000, ATTENTION CHIEF FINANCIAL OFFICER BY CERTIFIED MAIL OR NATIONAL COURIER
SERVICE THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR SUCH ADDITIONAL
PERIOD. NO EXTENSION WILL BE GRANTED, HOWEVER, WHICH EXTENDS THE MATURITY DATE
OF THIS LETTER OF CREDIT BEYOND FEBRUARY 28, 2015.
FUNDS UNDER THIS LETTER OF CREDIT WILL BE MADE AVAILABLE TO YOU AGAINST RECEIPT
BY US OF THE FOLLOWING DOCUMENTS, APPROPRIATELY COMPLETED AND SIGNED BY ONE OF
YOUR AUTHORIZED OFFICERS, INDICATING THE NAME AND TITLE OF THE SIGNER:
1. A SIGHT DRAFT IN THE FORM OF ANNEX A ATTACHED HERETO
2. YOUR DRAWING CERTIFICATE IN THE FORM OF ANNEX B ATTACHED HERETO
PRESENTATION OF SUCH SIGHT DRAFT AND DRAWING CERTIFICATE SHALL BE MADE AT OUR
OFFICE LOCATED AT COMERICA BANK, XXX XXXXXXX XXXXXX, 00XX XXXXX, XX 0000, 000
XXXXXXXX XXXXXX, XXXXXXX, XXXXXXXX 00000, ATTENTION INTERNATIONAL TRADE
SERVICES.
PARTIAL DRAWINGS ARE ALLOWED.
THIS LETTER OF CREDIT IS TRANSFERABLE SUCCESSIVELY IN ITS ENTIRETY ONLY UP TO
THE THEN AVAILABLE AMOUNT IN FAVOR OF ANY NOMINATED TRANSFEREE THAT IS THE
SUCCESSOR IN INTEREST TO BENEFICIARY OR IS THE NEW OWNER OF CERTAIN STATED
PROPERTY ("TRANSFEREE"), ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE IN
COMPLIANCE WITH THEN APPLICABLE LAWS AND REGULATIONS, INCLUDING BUT NOT LIMITED
TO THE REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S. DEPARTMENT OF
COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINAL
AMENDMENT(S), IF ANY MUST BE SURRENDERED TO US TOGETHER WITH OUR LETTER OF
TRANSFER DOCUMENTATION (IN THE FORM OF EXHIBIT "C" ATTACHED HERETO).
UNLESS OTHERWISE EXPRESSLY STATED, THIS LETTER OF CREDIT IS SUBJECT TO THE
UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION),
INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS"),
WHICH IS INCORPORATED INTO THE TEXT OF THIS LETTER OF CREDIT BY REFERENCE.
2
INDUSTRIAL LEASE
THIS LETTER OF CREDIT SHALL BE DEEMED TO BE ISSUED UNDER THE LAWS OF THE STATE
OF GEORGIA, SPECIFICALLY THE UNIFORM COMMERCIAL CODES, ARTICLE V AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA
SPECIFICALLY THE UNIFORM COMMERCIAL CODES ARTICLE V, WITH RESPECTS TO MATTERS
NOT GOVERNED BY THE UNIFORM CUSTOMS AND MATTERS ON WHICH THE UNIFORM CUSTOMS AND
THE LAWS OF THE STATE OF GEORGIA, UCC ARTICLE V, ARE INCONSISTENT.
WE HEREBY ENGAGE WITH YOU OR YOUR TRANSFEREE THAT ALL DRAFT(S) DRAWN AND
DOCUMENTS PRESENTED UNDER AND IN COMPLIANCE WITH THE TERMS OF THIS LETTER OF
CREDIT WILL BE DULY HONORED WITHIN THREE (3) BUSINESS DAYS OF OUR RECEIPT OF
DOCUMENTS AT COMERICA BANK, INTERNATIONAL DEPT., 000 XXXXXXXX XXX., 24TH FLOOR,
XXX XXXXXXX XXXXXX, XXXXXXX, XX 00000 ON OR BEFORE FEBRUARY 28, 2005 OR ANY
AUTOMATICALLY EXTENDED EXPIRY DATE.
VERY TRULY YOURS
COMERICA BANK
BY:
------------------
---------------------
AUTHORIZED SIGNATURE
(NAME AND TITLE)
3
INDUSTRIAL LEASE
ANNEX A
SIGHT DRAFT
[DATE]
AT SIGHT
PAY TO THE ORDER OF DUKE REALTY LIMITED PARTNERSHIP THE SUM OF
______________________ AND __________/100 U.S. DOLLARS ($__________) DRAWN ON
COMERICA BANK, AS ISSUER OF IRREVOCABLE LETTER OF CREDIT NO. __________ DATED
____________, 20__.
DUKE REALTY LIMITED PARTNERSHIP, AN INDIANA LIMITED PARTNERSHIP
BY: DUKE REALTY CORPORATION, ITS GENERAL PARTNER
BY:
----------------------------------
NAME:
--------------------------------
TITLE:
-------------------------------
4
INDUSTRIAL LEASE
ANNEX B
[MUST BE ON BENEFICIARY=S LETTERHEAD]
DRAWING CERTIFICATE
[DATE]
COMERICA BANK
XXX XXXXXXX XXXXXX
00XX XXXXX, XX 0000
000 XXXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
ATTN: INTERNATIONAL TRADE SERVICES
RE: IRREVOCABLE LETTER OF CREDIT NO. (THE "LETTER OF CREDIT") FOR THE ACCOUNT
OF _________________ (THE "APPLICANT")
LADIES AND GENTLEMEN:
THE UNDERSIGNED, DUKE REALTY LIMITED PARTNERSHIP (THE "BENEFICIARY") HEREBY
CERTIFIES THAT:
1) THE BENEFICIARY IS THE LESSOR UNDER THAT CERTAIN ______ LEASE DATED
_________,20 __, AS AMENDED, BETWEEN THE BENEFICIARY, AS LESSOR, AND THE
APPLICANT, AS LESSEE (THE "LEASE").
2) THE BENEFICIARY IS ENTITLED TO PAYMENT UNDER THE LETTER OF CREDIT IN THE
AMOUNT OF $____________ BY REASON OF THE FOLLOWING CONDITION (XXXX ONLY ONE)
_______ THE APPLICANT HAS DEFAULTED UNDER THE LEASE
_______ THE EXPIRATION DATE OF THE LETTER OF CREDIT IS LESS THAN 45 DAYS FROM
THE DATE OF THIS CERTIFICATE.
3) PLEASE DIRECT PAYMENT UNDER THE LETTER OF CREDIT BY WIRE TRANSFER TO:
[DEPOSITORY BANK]
[DEPOSITORY BANK ADDRESS]
ABA NO.___________________________
ACT NO.___________________________
5
INDUSTRIAL LEASE
IN WITNESS WHEREOF, THE UNDERSIGNED HAS DULY EXECUTED AND DELIVERED THIS
CERTIFICATE.
DUKE REALTY LIMITED PARTNERSHIP, AN INDIANA LIMITED PARTNERSHIP
BY: DUKE REALTY CORPORATION, ITS GENERAL PARTNER
BY:
----------------------------------
NAME:
--------------------------------
TITLE:
--------------------------------
6
INDUSTRIAL LEASE
ANNEX C
IRREVOCABLE LETTER OF CREDIT NO. _________-_
TRANSFER FORM
THIS FORM IS TO BE USED IN THOSE CASES WHERE A LETTER OF CREDIT IS TRANSFERRED
IN ITS ENTIRETY AND NO SUBSTITUTION OF INVOICE IS REUESTED
INTERNATIONAL TRADE SERVICES DEPARTMENT DATE
_________________________
COMERICA BANK
ONE DETROIT CENTER
24TH FLOOR, MC 3341
XXXXXXX, XXXXXXXX 00000
RE: LETTER OF CREDIT ISSUED BY
YOUR ADVICE NO.
GENTLEMEN:
FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:
________________________________________________________________________________
(NAME OF TRANSFEREE)
________________________________________________________________________________
(ADDRESS)
ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF
CREDIT IN ITS ENTIRETY.
BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF
CREDIT ARE TRANSFERRED TO THE TRANSFEREE AND THE TRANSFEREE SHALL HAVE THE SOLE
RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS,
WHETHER INCREASE OR EXTENSIONS OR OTHER AMENDMENTS AND WHETHER NOW EXISTING OR
HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE
WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.
7
INDUSTRIAL LEASE
THE ADVICE OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH TOGETHER WITH ANY AND
ALL AMENDMENTS, AND WE ASK YOU TO ENTER THE TRANSFER ON THE REVERSE OF THE
ADVICE, AND FORWARD IT DIRECT TO THE TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF
TRANSFER.
SIGNATURE AND LEGAL CAPACITY VERY TRULY YOURS,
GUARANTEE
----------------------------------- -----------------------------------
(BANK)(BENEFICIARY)
----------------------------------- -----------------------------------
(AUTHORIZED SIGNATURE) (SIGNATURE OF BENEFICIARY)
8
INDUSTRIAL LEASE
EXHIBIT G
FORM OF MEMORANDUM OF LEASE
PREPARED BY AND MAIL TO: XXXXXXXXX X. XXXXXXX
XXXXXXXX & XXXX LLP
000 XXXX XXXX XXXXXX
XXXXXXXX, XX 00000
MEMORANDUM OF LEASE
DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited partnership doing
business in North Carolina as DUKE REALTY OF INDIANA LIMITED PARTNERSHIP, having
an address of c/o Duke Realty Corporation, Attn: Raleigh Market-Senior Property
Manager, 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000
(hereinafter called "LANDLORD"), has leased to GENAISSANCE PHARMACEUTICALS,
INC., a Delaware corporation having an address at 0 Xxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxxxxx 00000-0000 (hereinafter called "TENANT"), for a term beginning the
_____ day of ____________, 2004, and continuing for a maximum period until
__________ __, 2020, including extensions and renewals, if any, the following
property:
approximately 37,072 square feet of office and laboratory space,
comprising a portion of the Building located at 000 Xxxxxxxxx Xxxx
Xxxxx, Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000, as more particularly
described in EXHIBIT A attached hereto and incorporated herein by
reference.
The provisions set forth in a written
Lease Agreement (the "LEASE") between
the parties, dated as of the ______ day of April, 2004, are hereby incorporated
in this Memorandum of Lease.
The parties have agreed to remove this Memorandum of Lease of record upon
the expiration or earlier termination of the Lease; provided, however, that in
the event of an early termination as a result of Tenant's default and vacation
of the leased premises, Tenant agrees that Landlord can unilaterally remove this
Memorandum of Lease of record.
IN WITNESS WHEREOF, the parties hereto have duly executed this Memorandum
of Lease and have hereunto set their seals as of the ____ day of
_________________, 2004.
[SIGNATURE PAGES FOLLOW]
1
INDUSTRIAL LEASE
LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP,
an Indiana limited partnership doing business
in North Carolina as Duke Realty of Indiana
Limited Partnership
By: Duke Realty Corporation,
an Indiana corporation, its General Partner
By:
------------------------------------------
Name:
----------------------------------------
Title: Senior Vice President
STATE OF______________
COUNTY OF______________
I, ____________________________, a Notary Public of the State and County
aforesaid, certify that _____________________________ personally came before me
this day and acknowledged that he/she is the Senior Vice President of Duke
Realty Corporation, an Indiana corporation the ("Corporation"), and that by
authority duly given and (a) as the act of the Corporation, and (b) as the act
of, Duke Realty Limited Partnership, an Indiana limited partnership doing
business in North Carolina as Duke Realty of Indiana Limited Partnership, in
which the Corporation is a general partner, the foregoing instrument was signed
by himself/herself as _______________ Senior Vice President of the Corporation.
WITNESS my hand and official seal this ________ day of ______________,
2004.
-------------------------------
Notary Public
My Commission Expires:
______________________
[OFFICIAL SEAL]
2
INDUSTRIAL LEASE
TENANT:
GENAISSANCE PHARMACEUTICALS, INC.
a Delaware corporation
By:
-----------------------------------------
Name:
--------------------------------------
Title: President
STATE OF CONNECTICUT
COUNTY OF NEW HAVEN
I, _____________________________________, a Notary Public of the State and
County aforesaid, certify that ______________________________ personally came
before me this day and acknowledged that he is the President of
Genaissance
Pharmaceuticals Inc., a Delaware corporation, and that by authority duly given
and as the act of the corporation, the foregoing instrument was signed in its
name by its President.
WITNESS my hand and official seal this _______ day of ______________, 2004.
-------------------------------
Notary Public
My Commission Expires:
______________________
[OFFICIAL SEAL]
3
