Exhibit 10.17
LEASE
By and Between
PRAECIS PHARMACEUTICALS INCORPORATED
("Lessee")
and
BDG PISCATAWAY, LLC
("Lessor")
Dated: August 19, 1998
TABLE OF CONTENTS
BASIC LEASE PROVISIONS AND DEFINITIONS..............................1
1. DESCRIPTION...................................................3
2. TERM. ........................................................4
3. BASIC RENT....................................................4
4. USE AND OCCUPANCY.............................................4
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL.....................4
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS.......................13
7. ASSIGNMENT AND SUBLEASE......................................15
8. COMPLIANCE WITH RULES AND REGULATIONS........................20
9. DAMAGES TO BUILDING/WAIVER OF SUBROGATION....................20
10. EMINENT DOMAIN...............................................22
11. INSOLVENCY OF LESSEE, OTHER DEFAULTS.........................25
12. LESSOR'S REMEDIES ON DEFAULT.................................26
13. DEFICIENCY...................................................26
14. SUBORDINATION OF LEASE.......................................28
15. SECURITY DEPOSIT/LETTER OF CREDIT............................28
16. RIGHT TO CURE BREACH.........................................29
17. LIENS........................................................29
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18. RIGHT TO INSPECT AND REPAIR..................................30
19. SERVICES TO BE PROVIDED BY LESSOR............................31
20. INTERRUPTION OF SERVICES OR USE..............................32
21. ELECTRICAL AND OTHER UTILITY SERVICES........................32
22. ADDITIONAL RENT..............................................34
23. LESSEE'S ESTOPPEL............................................40
24. HOLDOVER TENANCY.............................................41
25. RIGHT TO SHOW PREMISES.......................................41
26. LESSEE IMPROVEMENT WORK AND LESSEE ALLOWANCE.................41
27. WAIVER OF JURY TRIAL/NON-MANDATORY COUNTERCLAIMS.............43
28. LATE CHARGE..................................................43
29. INSURANCE....................................................43
30. NO OTHER REPRESENTATIONS.....................................48
31. QUIET ENJOYMENT..............................................48
32. INDEMNITY. ..................................................48
33. APPLICABILITY TO HEIRS AND ASSIGNS...........................49
34. PARKING SPACES...............................................50
35. LESSOR'S EXCULPATION.........................................50
36. RULES OF CONSTRUCTION/APPLICABLE LAW.........................50
37. BROKER.......................................................51
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38. PERSONAL LIABILITY...........................................51
39. NO OPTION....................................................52
40. DEFINITIONS. ................................................52
41. LEASE COMMENCEMENT...........................................53
42. NOTICES......................................................53
43. ACCORD AND SATISFACTION......................................54
44. EFFECT OF WAIVERS............................................54
45. TIME OF ESSENCE..............................................54
46. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE...................54
47. LESSOR'S RESERVED RIGHTS.....................................55
48. CORPORATE AUTHORITY..........................................55
49. GOVERNMENT REQUIREMENTS......................................55
50. RENEWAL OPTION...............................................55
51. SIGNS........................................................60
52. LESSEE'S RIGHT TO TERMINATE LEASE............................61
53. RIGHT OF FIRST OFFER.........................................61
54. NON-COMPETE..................................................63
55. USE OF ADDITIONAL FACILITIES.................................64
56. REPRESENTATION OF CONDITIONS OF DEMISED PREMISES.............64
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57. COUNTERPARTS.................................................64
LEASE
LEASE, made the 19th day of August, 1998 between BDG PISCATAWAY,
LLC, a New York limited liability company, whose address is c/o Blumenfeld
Development Group, Ltd., 0000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx 00000-0000
(hereinafter referred to as "Lessor"); and PRAECIS PHARMACEUTICALS INCORPORATED,
a Delaware corporation, whose address is 0 Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000-0000 (hereinafter referred to as "Lessee").
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease should have only the meanings set
forth in this Section, unless such meanings are expressly modified, limited or
expanded elsewhere herein.
(1) Additional Rent: All sums in addition to Term Basic Rent payable
by Lessee to Lessor pursuant to the provisions of this Lease.
(2) Base Period Costs: As to the following:
(A) Base Operating Costs: Those costs incurred during Calendar
Year 1998, exclusive of extraordinary or one-time costs, except to
the extent such extraordinary or one-time costs would be included
in Operating Costs for a Comparison Period.
(B) Base Real Estate Taxes: Those Real Estate Taxes incurred
for the Building and Office Building Area during Calendar Year 1998.
(C) Base Utility and Energy Costs: Those utility and energy
costs incurred for the Building and Office Building Area during
Calendar Year 1998 (herein "Base Utility Rate").
(3) Brokers: NEWMARK PARTNERS, INC. ("Newmark") and CB COMMERCIAL
REAL ESTATE GROUP, INC. ("CB").
(4) Building: The building located at 00 Xxxxxxxxxxxxx Xxxx (a/k/a
000 Xxxxxxxxxx Xxxxxx), Xxxxxxxxxx, Xxx Xxxxxx.
(5) Building Holidays: Those shown on Exhibit D.
(6) Demised Premises or Premises: The parties agree that the demised
premises for the purpose of this lease is as shown on Exhibit A hereto. The
parties agree that the area thereof which includes an allocable share of the
Common Facilities as defined in Subsection 40(B) shall be (the "Premises Area")
15,179 gross rentable square fee.
(7) Expiration Date: At 11:59 p.m. on November 30, 2008.
(8) Exhibits: The following Exhibits attached to this Lease are
incorporated herein and made a part hereof:
Exhibit A Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Cleaning Services
Exhibit D Building Holidays
Exhibit E Lessee Improvement Work
Exhibit E-1 Removable Improvements
Exhibit F Lessor's Environmental Reports
Exhibit G Form of Subordination, Non-Disturbance and
Attornment Agreement
Exhibit H Roof Warranties Currently in Effect
Exhibit I Building System Warranties Currently in Effect
(9) Rent Commencement Date: December 1, 1998
(10) Term Basic Rent: Two Million Six Hundred Ten Thousand Seven
Hundred Ninety and 00/100 ($2,610,790) Dollars for the Term payable as follows:
2
--------------------------------------------------------------------------------
Annual Monthly
Period Basic Rent Basic Rent
--------------------------------------------------------------------------------
Rent Commencement Date through the $242,864.00 $20,238.67
expiration of the 60th month following the
Rent Commencement Date
--------------------------------------------------------------------------------
The fifth anniversary of the Rent $279,294.00 $23,274.50
Commencement Date through the expiration
of the 120th month following the Rent
Commencement Date.
--------------------------------------------------------------------------------
(11) Lessee's Percentage: The fraction whose numerator is the
Premises Area and denominator is 64,871.036, subject to adjustment as provided
for in Subsection 40(A).
(12) Office Building Area: Xxx 0X, Xxxxx 000X, on the tax map of the
Township of Piscataway, Middlesex County, New Jersey.
(13) Parking Spaces: A total of sixty-one (61) spaces, all of which
shall be unassigned.
(14) Permitted Uses: Pharmaceutical research and development
laboratory, general business offices uses and related activities by Lessee, any
division thereof which is not a separate legal entity, or any permitted assignee
or subtenant as herein provided, including Provid Research, the drug discovery,
chemistry division of Lessee.
(15) Term: Commencing on the date hereof and expiring ten (10) years
from the Rent Commencement Date unless extended pursuant to the renewal option
contained in Paragraph 50 hereof or terminated early due to a casualty or
condemnation or pursuant to the early termination option contained in Paragraph
52 hereof.
WITNESSETH:
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION. Lessor hereby leases to Lessee, and Lessee hereby hires from
Lessor, the Demised Premises as defined in the Preamble (hereinafter called
"Demised Premises" or "Premises") which includes an allocable share of the
Common Facilities, as shown on the plan or plans, initialed by the parties
hereto, marked Exhibit A attached hereto, and made part of this Lease in the
Building as defined in the Preamble (hereinafter called the "Building"), which
is situated on the Office Building Area as defined in the Preamble (hereinafter
called "Office Building Area") as described on Exhibit A-1 attached hereto and
made part of this Lease,
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together with the right to use in common with other Lessees of the Building,
their invitees, customers and employees, those public areas of the Common
Facilities as hereinafter defined.
2. TERM. The Premises are leased for the Term as defined in the Preamble.
3. BASIC RENT. The Lessee shall pay to Lessor during the Term the Term Basic
Rent as defined in the Preamble (hereinafter called "Term Basic Rent"), payable
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts. The
Term Basic Rent shall accrue at the Annual Basic Rent rate (as defined in the
Preamble) and shall be payable in advance on the first day of each calendar
month during the Term in monthly installments of Monthly Basic Rent as defined
in the Preamble. Lessee shall pay Basic Rent, and any Additional Rent as
hereinafter provided, to Lessor at Lessor's above stated address, or at such
other place as Lessor may designate in writing, without demand and without
counterclaim, deduction or setoff, except as expressly provided in this Lease.
As used in this Lease, Basic Rent shall mean either Term Basic Rent, Annual
Basic Rent or Monthly Basic Rent, as appropriate. Anything contained herein to
the contrary notwithstanding, no Term Basic Rent or the Additional Rent
described in Section 22 of this Lease shall be due or payable with respect to
any period prior to the Rent Commencement Date; it being agreed and understood,
however, that during such period, Lessee shall pay all other Additional Rent
which shall be due and payable pursuant to this Lease.
4. USE AND OCCUPANCY. Lessee shall use and occupy the Premises for the Permitted
Uses as defined in the Preamble and for no other purpose.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL.
(A) Lessee covenants to commit no act of waste and to take good
care of the Premises and the fixtures and appurtenances
thereon, and shall, in the use and occupancy of the Premises
comply with all laws, orders and regulations of the federal,
state and municipal governments or any of their departments
affecting the Premises. Lessee shall also comply with any and
all environmental requirements resulting from the Lessee's use
of the Premises; this covenant to survive the expiration or
sooner termination of the Lease. Notwithstanding the
foregoing, provided Lessee is not in continuing default under
this Lease beyond any notice and cure period and provided such
is not prohibited under any mortgage or ground lease
encumbering the Premises, Lessee shall have the right, at
Lessee's expense, to contest the applicability or validity, in
whole or in part, of any laws, codes, rules or regulations
with which Lessee shall be required to comply hereunder and,
so long as such proceeding is being conducted in good faith,
with due diligence and in compliance with the requirements of
any mortgage or ground lease encumbering the Premises (of
which requirements Lessor shall have given Lessee written
notice or, at Lessor's
4
election, Lessor may provide Lessee with a copy of such
Mortgage or ground lease), Lessee may defer compliance
therewith pending the outcome of the contest, provided that
such deferral shall (i) not result in any deprivation in the
use of the Premises or the Building by any party entitled
thereto; (ii) not result in any civil or criminal liability on
the part of the Lessor or (iii) be completed at least 180 days
prior to the expiration of the term. Lessee hereby agreeing to
indemnify and hold the Lessor harmless from and against any
and all losses, costs, claims or expenses arising out of or
from such liability. Lessor shall, upon request by Lessee,
reasonably cooperate with such contest provided that Lessee
shall pay all costs incurred by Lessee in connection
therewith. Notwithstanding anything to the contrary contained
in this Lease, Lessor and Lessee agree that responsibility for
compliance with the Americans with Disabilities Act of 1990,
as the same may be amended or supplemented from time to time,
or any successor statute and related laws, rules and
regulations ("ADA") shall be allocated as follows: (i) Lessor
shall be responsible for compliance with the provisions of ADA
for all Common Facilities, exterior areas of the Building and
any common areas within the Building (excluding Lessee
Improvement Work); and (ii) Lessee shall be responsible for
compliance with the provisions of ADA within the Premises and
for all Lessee Improvement Work within or outside of the
Premises.
(B) Except for any repairs, maintenance or replacements
necessitated by the act(s) or omission(s) of Lessor, its
agents, servants, employees or contractors during the Term,
Lessee shall, at its sole cost and expense, make all necessary
non-structural repairs to the Premises and Lessee Improvement
Work. Lessee's obligation to repair shall not extend to
repairs that are necessitated by a requirement to comply with
laws that are the Lessor's obligation(s). Lessor shall keep in
good order and condition, and shall make all necessary repairs
to the Common Facilities, to include the structural portions
of the Building (including the roof, common areas, exterior
walls and exterior windows), to the parking areas, and to the
Building systems (including the heating, ventilating and air
conditioning, electrical and plumbing lines and systems,
except that Lessor shall not be responsible for maintaining or
repairing any Lessee Improvement Work, including, but not
limited to any separate split system HVAC system (the "Split
System") installed by Lessee to service all or a portion of
the Premises). In the event that Lessee installs a Split
System to service the Premises, Lessee shall (i) during the
Term enter into and pay for a service/labor contract with an
air conditioning and heating contractor reasonably acceptable
to Lessor, and (ii) deliver to Lessor copies of all warranties
covering such Split System and related work and, upon
termination of this Lease, assign such unexpired warranties to
Lessor. Notwithstanding
5
the foregoing, the cost of all such repairs by Lessor shall be
included, subject to the other terms and conditions of this
Lease, as an Operating Cost (as defined in Paragraph 22A).
Lessor will not be responsible for making a repair to any
system or any utilities installed by Lessee, unless the repair
is necessitated by Lessor's or Lessor's agent's, servant's,
visitor's, employee's or licensee's negligence or willful
misconduct. Where a repair required to be made by Lessor has
been made necessary by misuse or neglect by Lessee or Lessee's
agents, servants, visitors or licensees, Lessor shall
nevertheless make the repair, but Lessee shall pay to Lessor,
as Additional Rent, within thirty (30) days of demand, the
reasonable cost therefor.
(C) All improvements made by Lessee to the Premises or Building
(exclusive of any previously existing improvements located at
the Building which are incorporated in those improvements made
by Lessee to the Premises or Building), which are so attached
to the Premises or Building that they cannot be removed
without material injury to the Premises or Building
(including, but not limited to the Split System), shall become
the property of Lessor upon expiration or earlier termination
of the Lease, whether paid for in whole or in part by Lessee,
and except for those improvements and alterations specifically
identified as such on Exhibit E-1 hereto (the "Removable
Improvements") shall be and remain a part of the Premises and
Building and the property of Lessor. Not later than the last
day of the Term, Lessee shall, at Lessee's sole cost and
expense, (i) remove all Lessee's personal property, the
Removable Improvements and those improvements made by Lessee
which do not become the property of Lessor as aforesaid,
including trade fixtures, movable paneling, movable partitions
and the like; (ii) repair all injury done by or in connection
with the installation or removal of said property and
improvements (if any); and (iii) surrender the Premises in at
least as good condition as they were at the beginning of the
Term, reasonable wear and tear and damage by fire or other
casualty (other than that caused by the willful or unlawful
misconduct of Lessee or Lessee's agents, employees or
visitors) excepted. Notwithstanding anything to the contrary
contained in this Lease, Lessee shall not be required, at or
prior to the expiration or earlier termination of this Lease,
to remove (i) computer access floors, standard construction
partitions and standard ceilings; or (ii) pipes, wires,
cables, conduit or the like from walls, ceilings or floors,
provided that Lessee properly cuts, caps and disconnects same
in a safe and lawful manner, flush with the applicable floor,
wall or ceiling. Except as otherwise agreed upon in a writing
signed by both Lessor and Lessee, all other property of Lessee
remaining on the Premises after the last day of the Term of
this Lease shall be conclusively deemed abandoned and may be
removed by Lessor, and
6
Lessee shall reimburse Lessor for the reasonable cost of such
removal. Lessor may have any such property stored at Lessee's
risk and reasonable expense.
(D)
(i) In the event that Lessee is required to comply with the
New Jersey Industrial Site Recovery Act, N.J.S.A.
13:1K-6 et. seq. and its implementing regulations
("ISRA") because Lessee's operation at the Demised
Premises is an "industrial establishment" as defined by
ISRA, and if Lessee plans to change operations at the
Demised Premises, or plans to transfer ownership or
operations of the Demised Premises or closes its
operations at the Demised Premises and such action would
trigger the requirements of the ISRA, Lessee shall be
responsible for taking all actions to comply with the
ISRA, including, without limitation, filing all notices
and forms and undertaking all investigations and
remedial actions as required in order to complete the
ISRA process. Lessee shall provide copies of all its
submissions to the New Jersey Department of
Environmental Protection ("DEP") and all correspondence
received from the DEP to Lessor. Lessor agrees that it
will reasonably cooperate with Lessee's compliance with
ISRA hereunder, including, but not limited to, providing
documents and other information needed by Lessee to
complete forms and conduct investigations and executing
(to the extent necessary) any forms required by the ISRA
process.
(ii) Except as provided in the next sentence, Lessee shall be
responsible for all costs and expenses it incurs with
respect to compliance with ISRA to the extent that ISRA
has been triggered whether by current operation or as a
result of Lessee's change in operation, transfer of
ownership or operations or closing of operations. To the
extent that Lessee is required to undertake any field
sampling to investigate an area of concern and/or is
required to remediate any area of concern in connection
with the Demised Premises, and such area of concern is
an area of concern solely because of environmental
conditions that pre-date Lessee's occupancy of the
Demised Premises, or cause of actions or omissions of
persons other than Lessee or the employees, agents,
contractors or invitees of Lessee, Lessee shall not be
responsible for the investigation and remediation of
such areas and, in the event that such area of concern
is an area of concern solely because of environmental
conditions that predate Lessee's occupancy of the Demise
Premises or
7
because of any acts or omissions of Lessor, its agents,
representatives or contractors, then Lessor shall
reimburse Lessee for the reasonable costs and expenses
incurred by Lessee for the investigation and remediation
of such areas.
(iii) If Lessor: (a) transfers ownership or operations of the
Demised Premises or the property that includes the
Demised Premises; or (b) closes its operations at the
Demised Premises or the property that includes the
Demised Premises, and as a result thereof triggers the
requirements of ISRA, subject to the following proviso,
Lessee shall not be responsible for taking any action to
comply with ISRA, including, without limitation, filing
any notices and forms and undertaking any investigations
or remedial actions required in order to complete the
ISRA process; provided, however, that Lessee shall be
responsible for remediating or otherwise responding to
any environmental condition which is caused by the acts
or omissions of Lessee or its agents, contractors,
representatives or invitees and shall otherwise
reasonably cooperate with Lessor as required below.
Lessor shall provide copies of Lessor's submissions to
the DEP and correspondence received from the DEP to
Lessee which relate in any part to the Demised Premises.
Lessee agrees that in the event that Lessor may be
required to comply with ISRA, Lessee will reasonably
cooperate with Lessor's compliance, including, but not
limited to, providing documents and other information
needed by Lessor to complete forms and conduct
investigations, and executing (to the extent necessary)
any forms required by the ISRA process. Except as
provided in the next sentence, Lessor shall be
responsible for all costs and expenses it incurs with
respect to compliance with ISRA to the extent that ISRA
has been triggered solely as a result of Lessor's
transfer of ownership or operations or closing of
operations. To the extent that Lessor is required to
undertake any field sampling to investigate an area of
concern and/or is required to remediate any area of
concern in connection with the Demised Premises, and
such area of concern is an area of concern primarily
because of environmental conditions caused by the
actions or omissions of Lessee or the employees, agents,
contractors or invitees of Lessee, Lessee shall
indemnify and reimburse Lessor for all reasonable costs
and expenses incurred by Lessee with respect to the
investigation and remediation of such areas.
(iv) In the event Lessee fails to comply with ISRA as stated
in this Subsection 5(D), and as a consequence thereof,
Lessor, as a matter
8
of law, is unable to rent the Demised Premises, then the
Lessor shall treat the Lessee as one who has not removed
at the end of its Term, and thereupon be entitled to all
remedies against the Lessee provided by law in that
situation including a monthly rental as set forth in
Section 24 hereof, until such time as Lessee provides
Lessor with a negative declaration or confirmation that
any required clean-up plan has been successfully
completed.
(E) As used herein, Hazardous Substances shall be defined as any
hazardous chemical, hazardous substance, or hazardous or toxic
material, waste, pollutants or contaminants, asbestos or
petroleum or petroleum related substance or similar terms as
defined in The Comprehensive Environmental Responsibility
Compensation and Liability Act, as amended (42 U.S.C. 9601, et
seq.), the New Jersey Environmental Cleanup Act, as amended
and/or ISRA, the New Jersey Spill Compensation and Control
Act, as amended, N.J.S.A. 58:10-23.11b, et seq., any rules or
regulations promulgated thereunder, or in any other applicable
federal, state or local law, rule or regulation dealing with
environmental protection ("Environmental Laws"). It is
understood and agreed that the provisions contained in this
Section 5 shall be applicable notwithstanding the fact that
any substance shall not be deemed to be a Hazardous Substance
at the time of its use by the Lessee, but shall thereafter be
deemed to be a Hazardous Substance.
(F)
(i) Lessee shall comply in all material respects with all
applicable Environmental Laws with respect to its
occupancy and operations at the Demised Premises,
including, without limitation, obtaining all required
permits, licenses or approvals required pursuant to
applicable Environmental Laws with respect to Lessee's
occupancy and use of the Demised Premises.
(ii) Lessee shall only handle, use, manufacture, store,
process, transport or dispose of Hazardous Substances
with respect to its occupancy and operations at the
Demised Premises that are reasonably necessary and
useful in Lessee's business and operations. The amount
of Hazardous Substances that are maintained at the
Demised Premises at any one time shall only be that
amount of Hazardous Substances that are reasonably
necessary in connection with Lessee's business and
operations. Notwithstanding the foregoing, Lessee shall
only handle, use, manufacture, store, process, transport
or dispose of Hazardous Substances in material
compliance with all applicable Environmental Laws.
9
(iii) Lessee agrees that it shall provide to Lessor, upon
Lessor's request, copies of material safety data sheets
("MSDS") (to the extent Lessee is required to have such
sheets for a particular Hazardous Substance) with
respect to any Hazardous Substance that is used by
Lessee. Lessee shall provide such MSDS to Lessor within
thirty (30) days of Lessor's request.
(iv) Lessee shall use all reasonable efforts to ensure that
its operations do not result in environmental
contamination of the Demised Premises and/or Office
Building Area and that it will comply with all
applicable Environmental Laws relating to the
investigation and remediation of environmental
contamination in the event that its operations do cause
such contamination or potential contamination.
(v) Lessee shall conduct its operations so that it will not
be required to obtain a permit with respect to the
treatment, storage and disposal of hazardous waste
pursuant to the Federal Resource Conservation and
Recovery Act of 1976, as amended, or the analogous New
Jersey statute regulating the management of hazardous
waste. Lessee shall agree not to install any regulated
underground storage tank at the Demised Premises and/or
Office Building Area without the express written consent
of Lessor, which consent may be withheld for any reason
or no reason.
(vi) In performing any alterations to the Demised Premises
and/or Building permitted by this Lease, Lessee shall
not incorporate any Hazardous Substances into the
physical structure of the Demised Premises and/or
Building without the express written consent of Lessor,
such consent not to be unreasonably withheld.
(G) Lessor represents that based solely upon the contents of those
certain reports identified on Exhibit F hereto, except as set
forth in those certain reports identified on Exhibit F hereto
(which Lessee acknowledges having received and reviewed):
(i) There have been no releases (as defined by the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended) of Hazardous
Substances at the Demised Premises, except for releases
that have been investigated and/or remediated pursuant
to applicable Environmental Laws and as to which Lessor
(or such other party as was responsible for the release)
has obtained a no further action letter or negative
declaration from the
10
DEP or the United States Environmental Protection Agency
("EPA").
(ii) There have been no filings, proceedings, investigations
or remedial actions conducted with respect to the
Demised Premises or the property containing the Demised
Premises pursuant to ISRA, or its predecessor, the
Environmental Cleanup Responsibility Act ("ECRA").
(iii) The Demised Premises do not contain any friable or
non-friable asbestos-containing material; electrical
equipment containing polychlorinated biphenyls; urea
formaldehyde insulation; underground storage tanks, or
septic systems.
(H) If Lessor, in its sole discretion, believes that the Demised
Premises or the environment may have become contaminated with
Hazardous Substances that must be reported, investigated,
removed, remediated or otherwise responded to, Lessor, in
addition to its other rights under this Lease, may enter upon
the Demised Premises and obtain samples from the Demised
Premises, including without limitation, the soil and
groundwater under the Demised Premises, for the purposes of
analyzing the same to determine whether and to what extent the
Demised Premises or the environment have become so
contaminated, provided that (i) Lessor shall provide Lessee
with reasonable notice of its intent to enter the Demised
Premises and conduct any inspection, including, but not
limited to, its intent to obtain samples, which notice shall
(except in the case of emergencies) be provided to Lessee at
least five (5) business days prior to the date of the intended
inspection; (ii) except in the case of an emergency, such
inspections shall be conducted during normal business hours
unless Lessee authorizes Lessor to make such inspections at
other hours; (iii) such inspections shall minimize, to the
greatest extent possible, any disruption to Lessee's
operations, which (except in the case of an emergency) shall
include rescheduling any such inspection at the reasonable
request of Lessee; (iv) such inspections shall not require
Lessee to reveal any confidential or proprietary information
related to Lessee's business or operations; (v) such
inspections shall be conducted at the sole cost and expense of
Lessor (subject to any other right of indemnification provided
pursuant to this Lease); (vi) Lessee shall have the right to
have its employees and representatives (including, but not
limited to, attorneys and environmental consultants) present
during the inspection, provided that such right does not
unreasonably interfere with Lessor's scheduling of such
inspection; (vii) Lessee shall have the right to collect (at
its own cost and expense) split samples; and (viii) Lessor
shall promptly provide copies
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of all reports, analyses and data with respect to the
inspection to Lessee, which Lessee agrees to keep
confidential, unless compelled to disclose such information by
a court or regulatory agency with jurisdiction over the
Demised Premises. Lessee may not perform any sampling,
testing, or drilling to locate any Hazardous Substances on, in
or about the Demised Premises without Lessor's prior written
consent, such consent not to be unreasonably withheld, except
that if Lessee is obligated to conduct sampling, testing or
drilling pursuant to ISRA or another applicable Environmental
Law, Lessee may do so only after delivering at least five (5)
days prior written notice to Lessor.
(I)
(i) In addition to any other indemnity contained in this
Lease, Lessee agrees to indemnify and hold harmless the
Lessor from and against any and all liabilities,
damages, claims, losses, judgments, causes of action,
fine, penalty costs and expenses (including the
reasonable fees and expenses of counsel, including costs
of reporting, investigation, remediation or other
response action) (collectively, "Environmental Damage")
which may be incurred by the Lessor or threatened
against the Lessor relating to or arising out of (a)
Lessee's failure to comply with applicable Environmental
Laws; (b) the release or disposal of Hazardous
Substances on or from the Demised Premises and/or Office
Building Area by Lessee or Lessee's employees, agents,
contractors, or invitees; or (c) Lessee's failure to
comply with covenants hereunder that relate to its use
and handling of Hazardous Substances or its compliance
with applicable Environmental Laws.
(ii) In addition to any other indemnity contained in this
Lease, Lessor agrees to defend, indemnify and hold
harmless the Lessee from and against all
Environmental Damages which may be incurred by
Lessee or threatened against Lessee relating to or
arising out of (a) Lessor's failure to comply with
applicable Environmental Laws, or (b) the release or
disposal of Hazardous Substances on or from the
Demised Premises or the property containing the
Demised Premises which occurred prior to Lessee's
occupancy of the Demised Premises or was otherwise
caused by the acts or omissions of Lessor, its agents,
representatives or contractors.
(iii) To the extent that any Environmental Damages are a
result of conditions that are covered by subsections
I(i) and I(ii) above, the parties' respective
obligations pursuant to this Section 5 shall be
12
allocated comparatively, by taking into account the
amount and toxicity of the Hazardous Substances that
would be deemed the responsibility of Lessee pursuant to
subsection I(i) above or Lessor pursuant to subsection
I(ii) above, as well as the culpability of the parties
with respect to the condition requiring investigation or
remediation.
(J) Lessee shall provide to the Lessor for review and comment
copies of any documents that would be submitted to third
parties (including governmental bodies) regarding any material
environmental issues. Lessor shall provide its comments to
Lessee within five (5) business days after delivery of such
documents. For any matter where Lessor has an obligation to
defend, indemnify or hold harmless the Lessee under this
section, Lessee shall not be required to incur any cost or
expense, unless such cost or expense relates to an activity in
which Lessee is directed to engage by a regulatory agency or a
court.
(K) The covenants and agreements of Sections 5(D) through 5(J)
inclusive shall survive the termination or sooner expiration
of the Lease and surrender of the Demised Premises by Lessee
and shall also survive the sale, lease or assignment of the
Demised Premises (or property upon which the Demised Premises
is located) by Lessor.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS.
(A) Except as otherwise provided herein, Lessee shall not, without
first obtaining the written consent of Lessor, make any
alterations, additions or improvements in, to or about the
Premises and/or Building. Except for alterations, additions or
improvements which affect the structural components or roof of
the Building or any of the Building's mechanical, heating,
ventilating, air conditioning, plumbing, electrical or other
systems, Lessor shall not unreasonably withhold or delay its
consent to any alteration, addition or improvement to the
Demised Premises. As a condition to Lessor consenting to any
alteration, addition or improvement to be made by Lessee which
will affect (i) the Building's roof, Lessee shall provide
Lessor with, among other things reasonably requested by
Lessor, documentary evidence stating that Lessee's proposed
work will not render any roof warranty which Lessor has
furnished to Lessee void or voidable (Lessor acknowledging
that Exhibit H lists the roof warranties currently in effect);
or (ii) the Building's mechanical, heating, ventilating, air
conditioning, plumbing, electrical or other systems, Lessee
shall, among other things reasonably requested by Lessor, (a)
provide Lessor which plans signed and sealed by CUH2A, Inc. or
another engineering firm,
13
reasonably acceptable to Lessor (with experience in the design
of the type of Building system to be altered by Lessee),
indicating the scope of the work to be performed; Lessor
hereby agreeing that the provision of such Building services
to any other tenant in the Building will not be materially
diminished following completion of such work; unless Lessor
obtains approval from any affected tenant, and (b) provide
Lessor with documentary evidence stating that Lessee's
proposed work will not render any applicable Building system
warranty which Lessor has furnished to Lessee void or voidable
(Lessor acknowledging that Exhibit I lists the Building system
warranties currently in effect). Prior to commencing any
alterations, additions or improvements which may interrupt the
Building Services to other tenants, Lessee shall enter into a
written agreement with Lessor and all other tenants then
occupying the Building, in form and content reasonably
acceptable to Lessor and acceptable to such other tenants,
setting forth the dates and times when Lessee's proposed work
may interrupt the Building Services to such other tenants and
whereby such other tenants consent to the scheduled
interruptions. Any approval granted, or any agreement entered
into, by Lessor hereunder shall not be deemed to be a
certification by Lessor that the work to be performed by
Lessee will not interfere with or materially diminish the
affected Building services provided to the other Building
tenants. Any alterations, additions or improvements approved
by Lessor, shall be performed by Lessee, at its sole cost and
expense, using reputable licensed contractors and
subcontractors approved by Lessor, which approval shall not be
unreasonably withheld or delayed.
(B) All such alteration, addition or improvement work shall be
performed in a good and workmanlike manner using new materials
or materials of a quality consistent with first-class work of
similar type to the Lessee Improvement Work and in compliance
with all applicable statutes, laws, codes, rules, regulations
and requirements of all governmental and quasi-governmental
authorities having jurisdiction thereof and all requirements
of any mortgage or ground lease encumbering the Premises or
the insurer(s) insuring the Building (of which requirements
Lessor shall have given Lessee written notice or, at Lessor's
election, Lessor may provide Lessee with a copy of such
Mortgage or ground lease). Prior to performing any such
alteration, addition or improvement work, Lessee or its
contractor(s) shall obtain, at Lessee's sole cost and expense,
all necessary governmental and quasi-governmental permits,
approvals, certificates and authorizations relating to such
work and shall deliver copies thereof to Lessor. Upon
completion of any alteration, addition or improvement work,
Lessee shall promptly obtain, at its sole cost and expense,
and deliver to Lessee a copy of all required governmental and
14
quasi-governmental certificates and/or sign-offs evidencing
such completion. Notwithstanding anything to the contrary
contained in this Lease, Lessee may make alterations,
improvements or additions to the Premises with an aggregate
cost within any 12 month period of less than $10,000.00
without the consent of Lessor being first obtained; provided,
however, that any such alterations, improvements or additions
(i) shall be made in a good and workmanlike manner; (ii) shall
be made in accordance with all of the other terms and
conditions of this Lease; (iii) shall not affect any areas of
the Building other than the Premises; (iv) are not prohibited
by any mortgage or ground Lease as aforesaid; and (v) do not
affect any structural elements of the Building or Building
systems.
(C) Lessor agrees that at no expense to Lessor, it will, to the
extent reasonably necessary, (i) execute applications required
by the local planning board and similar authorities, and (ii)
otherwise reasonably cooperation with Lessee, in connection
with Lessee obtaining the required governmental or
quasi-governmental approval of the Lessee Improvement Work and
challenging any applicable laws which threaten to prevent the
Premises from being used for the Permitted Use.
7. ASSIGNMENT AND SUBLEASE. Lessee may not mortgage, pledge, hypothecate,
assign, transfer or sublet this Lease or the Premises in any manner except as
specifically provided for in this Section 7:
(A) Lessee may assign this Lease or sublet the whole or any
portion of the Premises (including, but not limited to, an
assignment of this Lease made in connection with a spin-off
of the Provid Research division of Lessee, provided that
Lessee remains primarily liable under this Lease and the
Provid Research division's operations continue at the Demised
Premises), subject to Lessor's prior written consent, which
consent shall not be unreasonably withheld or delayed. All
assignments of this Lease or any sublease of the whole or any
portion of the Demised Premises (regardless of whether
Lessor's consent is required) shall be on the basis of the
following terms and conditions:
(i) The Lessee shall provide to Lessor the name and address
of the assignee or sub-lessee.
(ii) The assignee shall assume by written instrument all of
the obligations of this Lease or any subtenant shall
take subject to all of the obligations of this Lease,
and a copy of such assumption agreement or sublease, as
applicable, shall be furnished to Lessor together with
Lessee's written request for Lessor's consent, which
15
consent shall be granted or denied (with reasons for
such denial), within twenty (20) days after receipt of
Lessee's request therefor.
(iii) The Lessee and each assignee shall be and remain liable
for the observance of all of the covenants and
provisions of this Lease, including, but not limited to,
the payment of Term Basic Rent and Additional Rent
reserved herein, as and when required to be paid,
through the entire Term of this Lease, as the same may
be renewed, extended or otherwise modified if at all and
each subtenant shall take subject to all of the
covenants and provisions of this Lease, as the same
shall be renewed, extended or otherwise modified if at
all.
(iv) The acceptance by Lessor of any Basic Rent and/or
Additional Rent from the assignee or from any of the
subtenants or the failure of Lessor insist upon a strict
performance of any of the terms, conditions and
covenants herein shall not release Lessee herein, nor
any such assignee or subtenant, from any and all of the
obligations herein during and for the entire Term of
this Lease.
(v) Lessee shall reimburse Lessor for its reasonable
out-of-pocket expenses, incurred for reviewing and
processing each request for consent to any sublet or
assignment (including, but not limited to, reasonable
attorney's fees).
(vi) Lessee shall have no claim, and hereby waives the right
to any claim, against Lessor money damages by reason of
any refusal, withholding or delaying by Lessor of any
consent, and in such event, Lessee's only remedies
therefor shall be an action for specific performance,
injunction or declaratory judgment to enforce any such
requirement.
(B) If Lessor shall give its consent to any assignment of this
Lease or to any sublease, Lessee shall in consideration
therefor, pay to Lessor, as Additional Rent, fifty (50%)
percent of the Assignment Profits or the Sublease Profits, as
the case may be:
(i) "Assignment Profits" shall mean the amount by which all
sums and other considerations paid to Lessee by the
assignee for or by reason of such assignment exceeds the
brokerage commissions actually paid by Lessee in
connection with such assignment and other expenses
reasonably incurred by Lessee in connection with such
assignment for which Lessee provides reasonably
satisfactory evidence thereof to Lessor (including,
without limitation,
16
reasonable legal fees and disbursements directly
incurred in connection with such assignment, improvement
allowances and other cash concessions (including
so-called "free rent") paid by Lessee, advertising
expenses, construction expenses, architectural and
planning expenses, any expenses payable to Lessor with
respect to the assignment or sublet (including without
limitation any payments paid or payable pursuant to
Section 7(A)(v) hereof), permitting and licensing costs
and lease takeover payments). Assignment Profits shall
exclude sums paid by the assignee for any Lessee's
personal property, equipment, and trade fixtures unless
the payment of such sums constitute a subterfuge to
avoid legitimate inclusion in the above-described
computation of Assignment Profits. The sums payable
under this Subsection B(i) shall be paid to Lessor as
and when paid by assignee to Lessee.
(ii) "Sublease Profits" shall mean the amount by which any
rents, additional charges or other consideration paid by
the sub-lessee to the Lessee in respect of the sublet
premises exceeds the sum of (1) the Annual Basic Rent
and Additional Rent accruing during the term of the
sublease in respect of the sublet premises (at the rate
per rentable square foot payable by Lessee hereunder),
(2) brokerage commissions actually paid by Lessee in
connection with the sublease (amortized over the term of
the sublease), (3) the unamortized portion (computed on
a straight-line basis over the term of the sublease in
accordance with generally accepted accounting principles
consistently applied) of the bona fide cost of (x) the
Lessee Improvement Work (net of the amount of the Lessee
Allowance) and (y) the alterations made by Lessee in
preparing the subleased space, and (4) other expenses
reasonably incurred by Lessee in connection with the
sublease for which Lessee provides satisfactory evidence
thereof to Lessor, amortized over the term of the
sublease (including without limitation, reasonable legal
fees and disbursements directly incurred in connection
with such sublease, improvements allowances and other
case concessions paid by Lessee, advertising expenses,
construction expenses, architectural and planning
expenses, any expenses payable to Lessor with respect to
the assignment or sublet (including without limitation
any payments paid or payable pursuant to Section 7(A)(v)
hereof), permitting and licensing costs and lease
takeover payments). Sublease Profits shall exclude sums
paid by the sub-lessee for any of Lessee's personal
property, equipment, and trade fixtures unless the
payment of such sums constitute a subterfuge to avoid
legitimate inclusion in the above-described computation
of
17
Sublease Profits. The sums payable under this Subsection
B(2) shall be paid to Lessor as and when paid by the
sublessee to Lessee. Lessee shall use reasonable efforts
to collect from such sublessee all rents, additional
charges and other consideration owing to Lessee.
(C) Any sublet or assignment to an affiliated company shall not
require Lessor's prior written consent, but shall require
Lessee to deliver to Lessor at least fifteen (15) days prior
written notice of such assignment or sublease and all other
provisions of this Section, other than Sections 7(A)(ii), (v)
and 7(B), shall apply. As used herein, "affiliated company"
shall mean any corporation or other business entity which
controls, is controlled by, or is under common control with,
Lessee at the time of such assignment or subletting and at all
subsequent times that such party is in occupancy of the
Premises. For the purposes hereof, "control" shall be deemed
to mean with respect to a corporation, ownership of more than
50% of all of the voting stock of such corporation and with
respect to a partnership or other entity, the ownership of
more than 50% of all the legal and equitable interests in such
partnership or any other entity and the right to control the
management and decision-making of such partnership or other
entity. Lessee may, without the consent of Lessor, assign or
transfer this Lease or sublet the Premises in whole or in part
to: (i) a corporation or other entity into which or with which
Lessee is merged or consolidated; or (ii) a corporation or
other entity acquiring this Lease and all or substantially all
of the other property of Lessee and assuming all or
substantially all of the liabilities of Lessee; or (iii) a
corporation or other entity with which Lessee is or may become
affiliated; provided, however, that the same utilize the
Premises consistent with the uses provided for herein. In
connection with any transactions set forth in clauses (i),
(ii) or (iii) of this Section 7(C), Sections 7(A)(ii), (v) and
7(B) shall not apply. In addition, Section 7(B) shall not
apply with respect to an assignment or sublet relating to
Lessee's spin-off of its Provid Research division; provided
that Lessee remains primarily liable under this Lease and the
Provid Research division's operations continue at the Demised
Premises.
(D)
(i) In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation
of law to any trustee, receiver, or other representative
or agent of Lessee pursuant to any state or federal
bankruptcy or receivership statute or procedure, or to
Lessee as a debtor in possession, and subsequently any
or all of Lessee's interest in the Premises and/or this
Lease is offered by
18
Lessee or any trustee, receiver, or other representative
or agent of Lessee pursuant to any state or federal
bankruptcy or receivership statute or procedure, as to
its estate or property (such person, firm or entity
being hereinafter referred to as the "Grantor"), for
assignment, conveyance, lease, or other disposition to a
person, firm or entity other than Lessor (each such
transaction being hereinafter referred to as a
"Disposition"), then, unless prohibited by applicable
law, it is agreed that Lessor has and shall have a right
of first refusal to purchase, take, or otherwise
acquire, the same upon the same terms and conditions as
the Grantor thereof shall accept upon such Disposition
to such other person, firm, or entity; and as each such
Disposition the Grantor shall given written notice to
Lessor in reasonable detail of all the terms and
conditions of such Disposition within twenty (20) days
next following its determination to accept the same but
prior to accepting the same, and Grantor, unless
prohibited by applicable law, shall not make the
Disposition until and unless Lessor has failed or
refused to accept such right of first refusal as to the
Disposition, as set forth herein.
(ii) Lessor shall have fifteen (15) business days next
following its receipt of the written notice as to such
Disposition in which to exercise the option to acquire
Lessee's interest by such Disposition, and the exercise
of the option by Lessor shall be effected by notice to
that effect sent to the Grantor; but nothing herein
shall require Lessor to accept a particular Disposition
or any Disposition, nor does the rejection of any one
such offer of first refusal constitute a waiver or
release of any one such offer of first refusal
constitute a waiver or release of the obligation of the
Grantor to submit other offers hereunder to Lessor. In
the event Lessor accepts such offer of first refusal,
the transaction shall be consummated pursuant to the
terms and conditions of the Disposition described in the
notice to Lessor. In the event Lessor rejects such offer
of first refusal, Grantor may consummate the Disposition
with such other person, firm, or entity; but any
decrease in the price sought from Lessor or any change
in the terms of payment for such Disposition shall
constitute a new transaction requiring a further option
of first refusal to be given to Lessor hereunder.
(E) Without limiting any of the provisions of Sections 11 and 12,
if pursuant to the Federal Bankruptcy Code (herein the
"Code"), or any similar law hereafter enacted having the same
general purpose, Lessor declines the right provided it in
Subsection 7(D) hereof and Lessee is permitted to
19
assign this Lease notwithstanding the restrictions contained
in this Lease, adequate assurance of future performance by an
assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to one
(1) year's Annual Basic Rent and Additional Rent for the next
succeeding twelve (12) months (which Additional Rent shall be
reasonably estimated by Lessor), which deposit shall be held
by Lessor for the balance of the Term, in an interest-bearing
account, as security for the full performance of all of
Lessee's obligations under this Lease.
(F) Except as specifically set forth above, no portion of the
Demised Premises or of Lessee's interest in this Lease may be
acquired by any other person or entity, whether by assignment,
mortgage, sublease, transfer, operation of law or act of the
Lessee, nor shall Lessee pledge its interest in this Lease.
8. COMPLIANCE WITH RULES AND REGULATIONS. Lessee shall observe and comply with
the rules and regulations hereinafter set forth in Exhibit B attached hereto and
made a part hereof and with such further reasonable rules and regulations as
Lessor may prescribe, on written notice to Lessee, for the safety, care and
cleanliness of the Building and the comfort, quiet and convenience of other
occupants of the Building. Lessor shall not enforce the rules and regulations in
a discriminatory manner. If there is any inconsistency between the rules and
regulations and the provisions set forth in the body of this Lease, the
provisions set forth in the body of this Lease shall prevail. Lessee shall not
place a load upon any floor of the Demised Premises exceeding the floor load per
square foot area which it was designed to carry (which information shall be
supplied to Lessee upon request, to the extent such information is in Lessor's
possession) and which is allowed by law. Lessor reserves the right to reasonably
prescribe the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Lessee, at
Lessee's expense, in settings sufficient, in Lessor's reasonable judgment, to
absorb and prevent vibration, noise and annoyance. In no event shall any rule or
regulation be applicable to Lessee to the extent that such rule or regulation
would materially restrict Lessee's right to use and occupy the Demised Premises
for any of the purposes set forth as a Permitted Use.
9. DAMAGES TO BUILDING/WAIVER OF SUBROGATION.
(A) If the Building is damaged by fire or any other cause to such
extent that the cost of restoration, as reasonably estimated
by Lessor, will equal or exceed twenty-five (25%) percent of
the replacement value of the Building (exclusive of
foundations) just prior to the occurrence of the damage or if
any damage to the Premises costing more that Fifty Thousand
and 00/100 ($50,000) Dollars occurs within the last twelve
(12) months of the Term, then Lessor (or Lessee with respect
to such damage to the Premises within the last 12 months of
the Term) may, no later than the sixtieth (60th) day
20
following the damage, give Lessee (or Lessor, as the case may
be) a notice of election to terminate this Lease. In said
event of election, this Lease shall be deemed to terminate
effective on the thirtieth (30th) day after the giving of said
notice. Lessee shall surrender possession of the Premises on
or before the effective date of termination and the Term Basic
Rent and any Additional shall be apportioned as of the date of
said termination date, and any Term Basic Rent or any
Additional Rent paid for any period beyond the effective
termination date shall be repaid to Lessee. If Lessor and
Lessee shall not have the right to terminate this Lease as
provided in this Section 9, or if, despite Lessor's or
Lessee's right to terminate, Lessor nor Lessee elects to
terminate this Lease pursuant to any right contained herein,
Lessor shall (except as set forth in the following sentence)
restore the Building and the Premises with reasonable
promptness, subject to Force Majeure, as hereinafter defined
and Lessee shall have no right to terminate this Lease, except
as specifically set forth in subsection 9(B) below.
Notwithstanding the foregoing, if Lessor is required to
restore the Building and Premises pursuant to the provisions
of this Section 9, Lessee shall, subject to Force Majeure,
promptly commence and prosecute restoration of all Lessee
Improvement Work, and such other fixtures, improvements or
systems owned and/or installed by Lessee, following
substantial completion of Lessor's restoration work (or at
such earlier time as Lessee and Lessor mutually agree). In
addition to all other applicable provisions of this Lease,
Lessee's restoration work shall be performed and completed in
accordance with the provisions of Sections 6 and 26 hereof.
(B) Anything contained in this Section 9 to the contrary
notwithstanding, within sixty (60) days after Lessee has given
written notice to Lessor of any damage to the Building that
materially impairs Lessee's ability to conduct its business in
the Premises, Lessor shall deliver to Lessee a statement
prepared by a reputable contractor selected by Lessor and
reasonably acceptable to Lessee, setting forth such
contractor's estimate as to the time required for Lessor to
repair such damage to the Building for which Lessor is
responsible. If the estimated time period exceeds one hundred
eighty (180) days from the date of such damage, Lessee may
elect to terminate this Lease by notice to Lessor not later
than thirty (30) days following receipt of such statement. If
Lessee shall not elect to terminate this Lease as aforesaid
(or is not entitled to terminate this Lease pursuant to this
Section), then Lessor and Lessee shall restore the Building
and the Premises as required herein with reasonable
promptness.
(C) In the event the Premises shall have been rendered
untenantable in whole or part due to damage by fire or other
casualty and this Lease shall not have been terminated
pursuant to subsections 9(A) or 9(B) above, then
21
notwithstanding anything in this Section 9 to the contrary,
Lessee shall have the right to terminate this Lease if the
restoration work to be performed by Lessor with respect to the
Building shall not have been substantially completed within
one hundred eighty (180) days of the date of the occurrence of
the damage for any reason, subject to delay caused by Lessee
or Lessee's employees, agents, or contractors or Force
Majeure, but in no event later than two hundred forth (240)
days in the aggregate after the date of occurrence of the
damage. Lessee shall exercise its right to terminate this
Lease by giving written notice of termination to Lessor on or
before the date that is thirty (30) days after the expiration
of the aforesaid one hundred eighty (180) period, as extended
by Force Majeure as aforesaid. In the event Lessee exercises
its right to terminate this Lease, this Lease shall terminate
on the thirtieth (30th) day following Lessor's receipt of
Lessee's written notice of termination, unless the restoration
work to be performed by Lessor with respect to the Building
shall have been substantially completed within said thirty
(30) day period. In the event Lessor determines, as the
restoration work progresses, that it will not be able to
substantially complete the restoration work to be performed by
Lessor with respect to the Building within one hundred eighty
(180) days of the date of the vesting of title (whether for
Force Majeure or otherwise), Lessor shall promptly notify
Lessee in writing ("Delay Notice") of the Lessor's reasonable
estimate of time period required to substantially complete
such restoration work. Lessee shall be deemed to have
consented to a delay in the date for substantial completion of
the restoration work unless Lessee shall notify Lessor in
writing within ten (10) days of its receipt of the Delay
Notice that Lessee desires to terminate this Lease in which
event the Lease shall terminate thirty (30) days following
Lessor's receipt of the written termination notice, provided,
however, that Lessee shall not be permitted to terminate this
Lease pursuant to this sentence, if substantial completion of
Lessor's restoration work can reasonably be achieved within
two hundred forty (240) days of the date of the occurrence of
the damage. Term Basic Rent and Additional Rent shall be
apportioned as of the date of the occurrence of the damage if
the entire Premises shall have been rendered untenantable or
on the effective termination date if only part of the Premises
shall have been rendered untenantable.
(D) In any case in which use of the Premises (or access thereto)
is materially affected by any damage to the Building, there
shall be either an abatement or an equitable reduction in
Annual Basic Rent for the period for which and the extent to
which the Premises are not reasonably usable and enjoyable for
the purpose for which they are leased hereunder. The words
"restoration" and "restore" as used in this Section 9 shall
include repairs.
22
If the damage results from the fault of Lessee, or Lessee's
agents, servants, visitors or licensees, Lessee shall not be
entitled to any abatement or reduction in Term Basic Rent,
except to the extent of any rent insurance received by Lessor.
10. EMINENT DOMAIN.
(A) If Lessee's use of the Premises or if Lessee's access to the
Premises or the parking area serving the Building are
materially affected such that Lessee cannot use the Premises
for its intended use during the remainder of the Term, due to
the taking by eminent domain of (i) the Premises or any part
thereof or any estate therein; or (ii) any other part of the
Building; then, in either event, this Lease shall terminate on
the date when title vests pursuant to such taking. The Term
Basic Rent, and any Additional Rent, shall be apportioned as
of said termination date and any Term Basic Rent or Additional
Rent paid for any period beyond said date shall be reimbursed
to Lessee. Under such circumstance, Lessee shall not be
entitled to any part of the award for such taking or any
payment in lieu thereof, but Lessee may file a separate claim
for any taking of the Lessee Improvement Work (less an amount
equal to the unamortized portion of the Lessee Allowance paid
to Lessee, computed on the straight-line basis over the
initial Term of this Lease), for loss of business and for
moving expenses, provided the same shall in no way affect or
diminish Lessor's award.
(B) In the event of a partial taking which does not effect a
termination of this Lease but does deprive Lessee of the use
of a portion of the Demised Premises, there shall either be an
abatement or an equitable reduction of the Term Basic Rent,
and an equitable adjustment reducing the Base Period Costs as
hereinafter defined depending on the period for which and the
extent to which the Premises so taken are not reasonably
usable for the purpose for which they are leased hereunder.
Lessee shall not be entitled to any part of the award for such
taking or any payment in lieu thereof, but Lessee may file a
separate claim for loss of business, provided the same shall
in no way affect or diminish Lessor's award. Under such
circumstances, Lessor shall include as part of its claim for
such eminent domain taking, an amount equal to the replacement
value of the Lessee Improvement Work affected by such taking.
Any net proceeds received by Lessor relating to the taking of
the Lessee Improvement Work shall be allocated as follows: (x)
first, to the Lessor an amount equal to the lesser of the
Lessee Allowance paid to Lessee, or an amount equal to the net
proceeds received by Lessor for the Lessee Improvement Work
affected by such taking, times a fraction where (a) the
numerator is the Lessee
23
Allowance, and (b) the denominator is the total cost of the
Lessee Improvement Work, which shall be retained by Lessor
(subject to the provisions of the following sentence), and (y)
the balance, if any, to Lessee to be used for Lessee's
restoration obligations hereunder. To the extent that any
condemnation proceeds are retained by Lessor, such proceeds
shall be held by Lessor in trust, in an interest-bearing
account and provided no Event of Default has occurred and is
continuing, disbursed to Lessee subject to the same conditions
for disbursement of the Lessee Allowance as set forth in
Section 26(C) of this Lease, following final completion of the
restoration work required to be done by Lessee pursuant to
subsections 10(C) through 10(E) below.
(C) If this Lease is not terminated as provided in Section 10(A)
above, Lessor shall (except as set forth in the following
sentence) restore the Building and the Premises with
reasonable promptness following the date when title vests
pursuant to such taking, subject to Force Majeure, as
hereinafter defined and Lessee shall have no right to
terminate this Lease, except as specifically set forth in
subsection 10(D) below. Notwithstanding the foregoing, if
Lessor is required to restore the portion of the Building and
Premises affected by such taking, pursuant to the provisions
of this Section 10, Lessee shall, subject to Force Majeure,
promptly commence and prosecute restoration of all affected
Lessee Improvement Work, and such other fixtures, improvements
or systems owned and/or installed by Lessee, following
substantial completion of Lessor's restoration work (or at
such earlier time as Lessee and Lessor mutually agree). In
addition to all other applicable provisions of this Lease,
Lessee's restoration work shall be performed and completed in
accordance with the provisions of Sections 6 and 26 hereof.
(D) Anything contained in this Section 10 to the contrary
notwithstanding, within sixty (60) days after the date when
title vests pursuant to such taking described in Section 10(B)
above, Lessor shall deliver to Lessee a statement prepared by
a reputable contractor selected by Lessor and reasonably
acceptable to Lessee, setting forth such contractor's estimate
as to the time required for Lessor to restore the portion of
the Building for which Lessor is responsible. If the estimated
time period exceeds one hundred eighty (180) days from the
date when title vests pursuant to such taking, Lessee may
elect to terminate this Lease by notice to Lessor not later
than thirty (30) days following receipt of such statement. If
Lessee shall not elect to terminate this Lease as aforesaid
(or is not entitled to terminate this Lease pursuant to this
Section,) then Lessor and Lessee shall restore the Building
and the Premises as required herein with reasonable
promptness.
24
(E) Notwithstanding anything in this Sectino10 to the contrary,
Lessee shall have the right to terminate this Lease if the
restoration work to be performed by Lessor with respect to the
Building shall not have been substantially completed, for any
reason, within one hundred eighty (180) days from the date
when title vests pursuant to such taking, subject to delay
caused by Lessee or Lessee's employees, agents, or contractors
or Force Majeure, but in no event later than two hundred forty
(240) days in the aggregate after the date when title vests
pursuant to such taking. Lessee shall exercise its right to
terminate this Lease by giving written notice of termination
to Lessor on or before the date that is thirty (30) days after
the expiration of the aforesaid one hundred eighty (180)
period, as extended by Force Majeure as aforesaid. In the
event Lessee exercises its right to terminate this Lease, this
Lease shall terminate on the thirtieth (30th) day following
Lessor's receipt of Lessee's written notice of termination,
unless the restoration work to be performed by Lessor with
respect to the Building shall have been substantially
completed within said thirty (30) day period. In the event
Lessor determines, as the restoration work progresses, that it
will not be able to substantially complete the restoration
work to be performed by Lessor with respect to the Building
within one hundred eighty (180) days of the date of the
vesting of title (whether for Force Majeure or otherwise),
Lessor shall promptly notify Lessee in writing ("Delay
Notice") of the Lessor's reasonable estimate of time period
required to substantially complete such restoration work.
Lessee shall be deemed to have consented to a delay in the
date for substantial completion of the restoration work unless
Lessee shall notify Lessor in writing within ten (10) days of
its receipt of the Delay Notice that Lessee desires to
terminate this Lease in which event the Lease shall terminate
thirty (30) days following Lessor's receipt of the written
termination notice, provided, however, that Lessee shall not
be permitted to terminate this Lease pursuant to this
sentence, if substantial completion of Lessor's restoration
work can reasonably be achieved within two hundred forty (240)
days of the date of the vesting of title.
11. INSOLVENCY OF LESSEE, OTHER DEFAULTS. If an Event of Bankruptcy (as
hereinafter defined) shall occur, Lessor may terminate this Lease forthwith and
upon notice of such termination Lessee's right to possession of the Demised
Premises shall cease, and Lessee shall then quit and surrender the Premises to
Lessor but Lessee shall remain liable as provided in Section 13 hereof.
The following shall be "Events of Bankruptcy" under this Lease:
25
(A) Lessee's becoming insolvent, as that term is defined in Title
11 of the United States Code, entitled Bankruptcy, 11 U.S. C.
ss.101 et seq. (as may be amended, supplemented or replaced
from time to time, the "Bankruptcy Code"), or under the
insolvency laws of any State, District, Commonwealth or
Territory of the United States as applicable to Lessee (the
"Insolvency Laws");
(B) the appointment of a receiver or custodian for all or a
substantial portion of Lessee's property or assets, or the
institution of a foreclosure action upon all or a substantial
portion of Lessee's real or personal property which shall not
have been vacated, discharged or stayed or bonded pending
appeal within sixty (60) days from entry thereof;
(C) the filing of a voluntary petition by Lessee under the
provision of the Bankruptcy Code or Insolvency Laws;
(D) the filing of an involuntary petition against Lessee as the
subject debtor under the Bankruptcy Code or Insolvency Laws,
which is either dismissed within sixty (60) days of filing, or
results in the issuance of an order for relief against the
debtor, whichever is later; or
(E) Lessee's making or consenting to an assignment for the benefit
of creditors or a common law composition of creditors.
12. LESSOR'S REMEDIES ON DEFAULT. If Lessee defaults in the payment of Term
Basic Rent, or any Additional Rent, or defaults pursuant to Subsection 29(A)(v)
hereof or permits the Premises to become deserted, abandoned or vacated or
defaults in the performance of any of the other covenants and conditions hereof,
Lessor shall (except for a Term Basic Rent default, where at least two (2) other
Term Basic Rent defaults have occurred during the then preceding twelve (12)
month period of which Lessor has given Lessee notice) give Lessee notice of such
default, and if Lessee does not (i) pay the amount of Term Basic Rent within ten
(10) days of the giving of the aforementioned required notice, or if no notice
is required within ten (10) days from the date such payment was due, or (ii)
cure any Additional Rent default within ten (10) days of the giving of such
notice, or (iii) cure the default pursuant to Subsection 29(A)(v) within
forty-eight (48) hours of the giving of such notice, or (iv) cure any other
default within thirty (30) days after giving of such notice (provided that if
such other default is of such nature that it cannot be completely cured within
such period, if Lessee does not commence such curing within such thirty (30)
days and thereafter proceed with reasonable diligence and in good faith to cure
such default and such default is not thereafter cured within the lesser of (a)
one hundred twenty (120) days from the giving of such notice or (b) such period
of time from the giving of such Notice which equals the amount of time which
Lessor has to cure a similar non-monetary default as described in any underlying
mortgage, lease or trust deed, as same may be extended by said mortgagee, lessee
or trustee from time to time; it being agreed that Lessor shall provide
26
Lessee with a copy of such mortgage, lease or trust deed or notice of the
relevant provisions) (each of the foregoing being an "Event of Default"), then
Lessor may terminate this Lease on not less than ten (10) days notice to Lessee,
and on the date specified in said notice, Lessee's right to possession of the
Demised Premises shall cease, and Lessee shall then quit and surrender the
Premises to Lessor, but Lessee shall remain liable as hereinafter provided. If
this Lease shall have been so terminated by Lessor pursuant to Sections 11 or 12
hereof, Lessor may at any time thereafter resume possession of the Premises by
any lawful means and remove Lessee or other occupants and their effects.
13. DEFICIENCY.
(A) In any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may, at
Lessor's option, occupy the Premises or cause the Premises to
be redecorated, altered, divided, consolidated with other
adjoining premises, or otherwise changed or prepared for
reletting, and may relet the Premises or any part thereof as
agent of Lessee or otherwise, for a term or terms to expire
prior to, at the same time as, or subsequent to, the original
expiration date of this Lease, at Lessor's option, and receive
the Term Basic Rent or Additional Rent therefor. Term Basic
Rent and Additional Rent so received shall be applied first to
the payment of such expenses as Lessor may have incurred in
connection with the recovery of possession, redecorating,
altering, dividing, consolidating with other adjoining
premises, or otherwise changing or preparing for reletting,
and the reletting, including brokerage and reasonable
attorney's fees, and then to the payment of damages in amounts
equal to the Term Basic Rent and Additional Rent hereunder and
to the costs and expenses of performance of the other
covenants of Lessee as herein provided. Lessee agrees, in any
such case, whether or not Lessor has relet, to pay to Lessor
damages equal to the Term Basic Rent and Additional Rent and
other sums herein agreed to be paid by Lessee, as and when
due, less the net proceeds of the reletting, if any, as
ascertained from time to time, as of the due date, and the
same shall be payable by Lessee on the several rents days
above specified, Lessee shall not be entitled to any surplus
accruing as a result of any such reletting nor shall any
surplus be applied to offset any damages referred to in the
preceding sentence. In reletting the Premises as aforesaid,
Lessor may grant rent concessions, and Lessee shall not be
credited therewith. No such reletting shall constitute a
surrender and acceptance or be deemed evidence thereof.
(B) Alternatively, in any case where Lessor has recovered
possession of the Premises by reason of Lessee's default,
Lessor may at Lessor's option, and at any time thereafter, and
without notice or other action by Lessor, and without
prejudice to any other rights or remedies it might have
hereunder
27
or at law or equity, become entitled to recover from Lessee,
as damages for such breach, in addition to such other sums
herein agreed to be paid by Lessee, an amount equal to the
difference between (i) the Term Basic Rent and Additional Rent
reserved in this Lease from the date of such default to the
date of expiration of the Term demised (assuming the Lease had
not been terminated by reason of such default), as the same
may have been extended or renewed, and (ii) the then fair and
reasonable rental value of the Premises for the same period
(net of a six month reletting period); both discounted to
present worth at the then current Applicable Treasury Rate.
The "Applicable Treasury Rate" shall equal the then current
yield on U.S. Treasury obligations having a maturity which is
closest to the date of expiration of the Term demised
(assuming the Lease had not been terminated by reason of such
default), as the same may have been extended or renewed. Said
damages shall become due and payable to Lessor immediately
upon such breach of this Lease and without regard to whether
this Lease be terminated or not, and if this Lease be
terminated, without regard to the manner in which it is
terminated.
(C) Lessee hereby waives all right of redemption to which Lessee
or any person under Lessee might be entitled by any law now or
hereafter in force. In addition, if an Event of Default occurs
which results in the Lessor recovering possession of the
Demised Premises, Lessor shall be under no duty to mitigate
Lessee's damages as provided for in this Section 13. Lessor's
remedies hereunder are in addition to any remedy allowed by
law or in equity.
14. SUBORDINATION OF LEASE. Subject to the provisions contained in any
subordination, non-disturbance and attornment agreement executed by and among
Lessor, Lessee and the holder of any underlying lease, mortgage or trust deed,
this Lease and any option contained herein shall, at Lessor's option, or at the
option of any holder of any underlying lease or holder of any mortgage or trust
deed, be subject and subordinate to any such underlying leases and to any such
mortgage or trust deed which may now or hereafter affect the real property of
which the Premises form a part, and also to all renewals, modifications,
consolidations and replacements of said underlying leases and said mortgages or
trust deed. Although no instrument or act on the part of Lessee shall be
necessary to effectuate such subordination, Lessee will, nevertheless, execute
and deliver such further instruments confirming such subordination of this Lease
as may be desired by the holders of any said mortgage or trust deed or by any of
the Lessors under such underlying leases. If any mortgage or deed of trust is
foreclosed or if a deed in lieu of foreclosure covering the Office Building Area
is given to the holder of a mortgage or deed of trust (or its designee), Lessee
shall, on request, attorn to the holder of such mortgage, or deed of trust (or
its designee). If any underlying lease to which this Lease is subject shall be
terminated, Lessee shall, on request, attorn to the owner of the reversion.
Notwithstanding anything to the contrary contained herein, the foregoing
subordination of this Lease shall be
28
conditioned on the holder of any underlying lease or holder of any mortgage or
trust deed entering into a subordination, non-disturbance and attornment
agreement ("SNDA") with Lessee substantially in the form attached hereto as
Exhibit G. With respect to any mortgage encumbering the Office Building Area on
the date hereof, Lessor shall deliver the SNDA on the date hereof. Lessor
represents that there are no ground or similar underlying leases currently
affecting the real property of which the Premises are a part.
15. SECURITY DEPOSIT/LETTER OF CREDIT. On or prior to the date hereof, Lessee
shall have deposited with Lessor an irrevocable standby letter of credit issued
by BankBoston, N.A., in the face amount of One Hundred Fifty Thousand Dollars
($150,000) and in form satisfactory to Lessor (the "Letter of Credit"). The
Letter of Credit shall have an initial term of five (5) years and thereafter,
during the Term, shall be renewed by Lessee not later than thirty (30) days
prior to the expiration of such Letter of Credit (as extended from time to
time). Each renewal Letter of Credit shall be issued by a bank or other
financial institution reasonably acceptable to Lessor (if the credit rating of
such entity is at least equal to that of the initial issuer as of the date
hereof then such entity shall be deemed acceptable to Lessor) and shall be in
the same amount and on the same terms and conditions as the initial Letter of
Credit. The obligation to renew the Letter of Credit shall continue throughout
the Term and the Letter of Credit shall not be permitted to expire or terminate
until at least ninety-one (91) days after the last day of the Term. If any Event
of Default has occurred, Lessor may at any time from time to time and without
prejudice to any other remedy, draw down all or any portion of the Letter of
Credit to the extent necessary to make good any arrears of any amount due but
not paid under this Lease, or any other damage, injury, expense or liability
caused to Lessor by such Event of Default. The Letter of Credit shall not be
considered an advance payment of rent or a measure of Lessor's damages in case
of default by Lessee. In the event of the sale or transfer of Lessor's interest
in the Demised Premises, Lessor shall have the right to transfer all or any
portion of Letter of Credit to the purchaser or transferee (and Lessee will take
such actions as are necessary to cause the Letter of Credit to be issued in the
name of such transferee), and upon such transfer Lessee shall thereafter look
only to the new lessor for the return of the Letter of Credit, and Lessor shall
thereupon be released from all liability to Lessee for the return of or account
for such Letter of Credit. If all or any portion of the Letter of Credit is
used, applied or retained by Lessor, Lessee shall, within ten (10) days after a
draw on the Letter of Credit, cause the amount available under the Letter of
Credit to be increased to One Hundred Fifty Thousand Dollars ($150,000). Draws
on the Letter of Credit shall require only delivery of a certification by Lessor
that there has occurred an Event of Default under the Lease and the issuer shall
be entitled to rely thereon without need to verify the factual accuracy thereof.
16. RIGHT TO CURE BREACH. If Lessee breaches any covenant or condition of this
Lease and if the giving of notice by Lessor is required pursuant to this Lease,
then if such breach is not cured within any applicable notice and cure period
contained in this Lease, Lessor may, on not less than (10) days prior written
notice to Lessee (except that no notice need be given in case of emergency),
cure such breach at the expense of Lessee and the reasonable amount of all
expenses, including reasonable attorneys' fees, with interest thereon at the
Interest Rate (as
29
hereinafter defined) incurred by Lessor in so doing shall be deemed Additional
Rent payable on demand.
17. LIENS.
(A) Lessee shall not allow any lien or other encumbrance to be
filed upon any interest of Lessor or any ground or underlying
lessor in any portion of the Premises, the Building and/or
Office Building Area. If, because of any act or omission (or
alleged act or omission) of Lessee, any construction lien
claim or other lien (collectively "Lien"), charge, or order
for the payment of money or other encumbrance shall be filed
against Lessor and/or any ground or underlying lessor and/or
any portion of the Premises, the Building or Office Building
Area (whether or not such Lien, charge, order, or encumbrance
is valid or enforceable as such), Lessee shall, at its own
cost and expense, cause same to be discharged of record or
bonded within thirty (30) days after the filing thereof; and
Lessee shall indemnify and save harmless Lessor and all ground
and underlying lessor(s) against and from all costs,
liabilities, suits, penalties, claims, and demands, including
reasonable counsel fees, resulting therefrom. If Lessee fails
to comply with the foregoing provisions, Lessor shall have the
option of discharging or bonding any such Lien, charge, order,
or encumbrance, and Lessee agrees to reimburse Lessor for all
reasonable costs, expenses and other sums of money in
connection therewith (as Additional Rent) with interest at the
Interest Rate upon demand. All materialmen, contractors,
artisans, mechanics, laborers, and any other persons now or
hereafter contracting with Lessee of any contractor or
subcontractor of Lessee for the furnishing of any labor
services, materials, supplies, or equipment with respect to
any portion of the Premises, at any time from the date hereof
until the end of the Lease Term, are, to the extent allowed by
applicable law, hereby charged with notice that they are to
look exclusively to Lessee to obtain payment for same.
(B) "Interest Rate" shall mean a rate per annum equal to the prime
or base commercial lending rate from time to time announced by
Citibank N.A. (or its successors) to be in effect at its
principal office in New York, New York plus three (3%) percent
bu in no event in excess of the maximum rate of interest
permitted under applicable law.
18. RIGHT TO INSPECT AND REPAIR. Lessor may enter the Premises but shall not be
obligated to do so (except as required by any specific provision of this Lease)
at any reasonable time on prior reasonable notice (which need not to be in
writing, but Lessor shall make reasonable efforts to deliver same to Lessee) to
Lessee (except that no notice need be given in case of emergency) for the
purpose of inspection or the making of such repairs, replacement or
30
additions, in, to, on and about the Premises as Lessor is required or permitted
to make hereunder or otherwise at the Building, as Lessor deems reasonably
necessary or desirable. Lessee shall be entitled to have a representative
accompany Lessor at the appointed time of entry; provided that such does not
unreasonably interfere with or prevent Lessor from taking the aforementioned
actions. Lessee shall have no claims or cause of action against Lessor by reason
thereof, but Lessor shall use reasonable efforts to minimize any such
disturbance consistent with practices in office buildings similar to the
Building in the Piscataway area.
19. SERVICES TO BE PROVIDED BY LESSOR.
(A) Subject to intervening laws, ordinances, regulations and
executive orders, if any, Lessor agrees to furnish during
Building Hours (as defined in Section 40D), except on holidays
as set forth on Exhibit D attached hereto and made a part
hereof, and at such other hours as provided herein, subject to
reimbursement as provided for in Section 21 and 22, the
following:
(i) The cleaning services, as set forth on Exhibit C
attached hereto and made a part hereof, and subject to
the conditions therein stated. Except as set forth on
Exhibit C, Lessee shall pay the cost of all other
cleaning services required by Lessee.
(ii) Heating, ventilating and air conditioning (herein
"HVAC") to the Premises; provided, however, that if
Lessee elects to install a Split System to service only
the Premises, then Lessor shall no longer be responsible
for furnishing HVAC to the Premises and the Annual Basic
Rent shall be reduced by $1 per gross rentable square
foot of space contained in the Premises. Lessor hereby
consents, subject to the other provisions of Section 6
and the applicable provisions of Section 5 of this
Lease, to the installation by Lessee of a Split System
for supplying HVAC to the Premises, and if Lessee makes
the foregoing election, then all of the foregoing shall
be included in the definition of Lessee Improvement
Work. Lessor shall, subject to the provisions of Section
6 and the applicable provisions of Section 5 of this
Lease, permit Lessee at Lessee's sole cost and expense,
to tie into the existing hot and cold water supply and
condenser water supply, the existing base Building
ventilation ductwork and other systems of the Building
as is reasonably necessary to adequately service the
Split System. Lessor shall furnish HVAC to the Common
Facilities together with Common Facilities lighting and
electric energy. Lessor shall provide electric energy
for overhead lighting and outlet usage in the Premises
during Building Hours and non-Building Hours (the
consumption costs of which shall be borne by Lessee),
which shall not exceed
31
four (4) xxxxx per square foot of the Premises per
working hour (it being agreed that Lessee may, as part
of its Lessee Improvement Work and if permitted by the
company providing electrical service to the Demised
Premises, upgrade the electrical capacity to
approximately 800 amps at 480/277 volts); provided,
however, that in the event that Lessee elects to have
the electric or any other utility serving the Premises
directly metered by the utility company providing such
service (rather than sub-metered by Lessor), then, upon
Lessor obtaining such direct service, the Lessor shall
not be responsible for providing any such electric or
utility service to the Premises and the work related to
such election shall be included in the definition of
Lessee Improvement Work.
(iii) During Building Hours and non-Building Hours, cold and
hot water for drinking and lavatory purposes and gas
service; subject to the provisions set forth in subject
A (ii) above regarding Lessee's election to have such
services directly metered.
(iv) Snow plowing and lawn care (including, without
limitation, the planting of seasonal plants in the
courtyard portion of the Office Building Area)
consistent with other buildings of similar class as that
of the Building in the area of the Building.
(v) No later than December 31, 1998, Lessor shall repave the
courtyard portion of the Office Building Area and
replant the area with seasonal plants.
(B) Lessee shall have access to the Building, parking area and the
Premises twenty-four (24) hours per day, seven (7) days per
week, subject to reasonable security provisions that may be
established from time to time by Lessor with respect to such
access during non Building Hours.
20. INTERRUPTION OF SERVICES OR USE. Interruption or curtailment of any service
maintained in the Building or at the Office Building Area, if caused by Force
Majeure, as hereinafter defined, shall not, except as otherwise provided herein,
entitle Lessee to any claim against Lessor or to any abatement of Term Basic
Rent or Additional Rent, and shall not constitute a constructive or partial
eviction. If the Premises are rendered untenantable in whole or in part, for a
period of ten (10) consecutive business days, by any interruption or curtailment
of any service maintained by Lessor, or for any other reason, including, without
limitation, Force Majeure, (other than any interruption of electric or any other
utility service not provided by Lessor pursuant to Section 19 above and/or by
any other interruption caused by misuse or neglect by Lessee, or Lessee's
agents, servants, visitors or licensees), there shall be a proportionate
abatement of Monthly Basic Rent from and after said tenth (10th) consecutive
business day and
32
continuing for the period of such untenantability. The remedies provided for in
this Section 20 shall be Lessee's sole remedies for any interruption of service
or use as described above.
21. ELECTRICAL AND OTHER UTILITY SERVICES.
(A) Lessee, as part of the Lessee Improvement Work, shall install
all such sub-meters required to measure all electrical and
other utility consumption required for Lessee's use and
occupation of the Premises. Lessee shall be responsible for
the payment to Lessor, as Additional Rent, the amount charged
by the utility company furnishing such electrical power and
other utility service, as registered on each such sub-meter.
Lessor shall cause each such sub-meter to be read monthly and
shall invoice Lessee on a monthly basis for Lessee's
electrical and other utility consumption. Such amounts shall
be paid by Lessee within ten (10) days after being invoiced by
Lessor. Notwithstanding anything to the contrary contained in
this subsection 21(A), Lessee may elect, at Lessee's sole cost
and expense (subject to the provisions of Section 6 of this
Lease and otherwise subject to Lessor's reasonable approval),
to install a meter (or meters) to measure Lessee's electrical
and/or other utility consumption within the Premises. In the
event of such election, Lessee shall timely pay directly to
the applicable utility company furnishing services to the
Premises, all amounts charged for electric and utility
consumption. If Lessee shall obtain electricity or any other
utility directly from the applicable utility company, Lessee
shall have the right to use all existing risers, wires,
conduits and electrical and other applicable utility equipment
servicing the Premises in a manner consistent with its
intended use, subject to the other provisions of this Lease.
(B) Lessor shall not be liable in any way to Lessee for any
change, failure, inadequacy or defect in the supply or
character of electrical energy and/or other utility service
furnished to the Demised Premises, unless caused by the gross
negligence or willful misconduct of Lessor, Lessor's
employees, agents or contractors. Notwithstanding anything to
the contrary contained in this Lease, Lessee shall be
responsible for any repair, maintenance and replacement of any
electrical and/or other utility meter (or sub-meter), panel
board, wires, wiring, feeders, risers, pipes, plumbing, and
such other related fixtures and equipment installed by Lessee
and used in connection with the electrical and/or other
utilities furnished to the Demised Premises, at Lessee's
expenses, or if Lessor causes such work to be performed,
Lessee shall pay Lessor the reasonable charges therefor within
thirty (30) days of demand.
33
(C) Lessee agrees not to connect any additional electrical
equipment of any type to the Buildings' electrical
distribution system, other than lamps, typewriters and other
similar customary office machines which consume comparable
amounts of electricity (including without limitation personal
computers and copy machines) and scientific electrical
equipment common to a research laboratory facility, without
the Lessor's prior written consent. In no event shall Lessee
use or install any fixtures, equipment or machines the use of
which in conjunction with other fixtures, equipment and
machines in the Demised Premises would result in an overload
of the electrical circuits servicing the Demised Premises. In
order to insure that such electrical capacity is not exceeded
and to avert any possible adverse effect upon the Building's
electrical system, Lessee shall not, except as otherwise
provided herein, without the prior consent of Lessor (which
consent shall not be unreasonably withheld or delayed,
provided that the withholding of consent shall be deemed
reasonable if it is based upon an unreasonably
disproportionate demand of electricity for the Demised
Premises as the Demised Premises relates to the Building as a
whole), make or perform or permit any alteration to wiring
installations or electrical facilities in or serving the
Demised Premises or any additions to the electrical fixtures,
business machines, or office equipment or appliances (other
than typewriters, desk top personal computers and similar low
energy consuming office machines and scientific electrical
equipment common to research laboratory facilities) in the
Demised Premises which utilize electrical energy. Lessor, at
its option, before the commencement of any work to be paid for
by Lessee hereunder or at any time thereafter, may require
Lessee to furnish to Lessor such security, whether by surety
bond, issued by a corporation satisfactory to Lessor, in form
and amount and licensed to do business in the State of New
Jersey, or otherwise, as Lessor shall deem reasonably
necessary to assure the payment for such work by Lessee.
(D) Lessee shall, at its expense, furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required
in the Premises.
22. ADDITIONAL RENT. It expressly agreed that Lessee will pay in addition to the
Term Basic Rent provided in Section 3 above, as additional rental to cover
Lessee's Percentage of the increased cost to Lessor, for each of the categories
enumerated herein, over the Base Period Costs for each such category.
(A) Operating Cost Escalation.
(i) If during the Lease Term the Operating Costs incurred
for the Building in which the Demised Premises are
located and Xxxxxx
00
Xxxxxxxx Xxxx for any calendar year or proportionate
part thereof if the Lease Term expires prior to the
expiration of a calendar year (herein the "Comparison
Period") shall be greater than the Base Operating Costs
(adjusted proportionately if the Comparison Period is
less than a calendar year), then Lessee shall pay to
Lessor, as Additional Rent, Lessee's Percentage of all
such excess Operating Costs. Operating Costs shall
include all reasonable costs and expenses of owning,
operating, managing, maintaining, repairing, replacing
and securing the Building and the Office Building Area
including, by way of illustration and not by way of
limitation: personal property taxes; asset and/or
property management fees; labor, including all wages and
salaries and benefits for those individuals rendering
services to the Building and/or the Office Building
Area, which are generally comparable to the wages,
salaries and benefits paid to those providing services
to other buildings of comparable quality in the general
area of the Building but not including any employees
above the rank of building or property manager; social
security taxes, and other taxes (excluding late payment
charges) which may be levied against Lessor upon such
wages and salaries; supplies; repairs, maintenance and
replacements; maintenance and service contracts;
painting; wall and window washing; tools and equipment
(which are not required to be capitalized under
generally accepted accounting principles); fire, rent,
liability and other insurance; trash removal; lawn care;
snow removal; sums levied, assessed, imposed or required
to be paid to any governmental authority on account of
the parking of motor vehicles, including all sums
required to be paid pursuant to transportation controls
imposed by the Environmental Protection Agency under the
Clean Air Act of 1970, or otherwise required to be paid
by any governmental authority with respect to the
parking, use, or transportation of motor vehicles, or
reduction or control of motor vehicle traffic, or motor
vehicle pollution; and all other items properly
constituting direct operating costs according to
standard accounting practices (hereinafter collectively
referred to as the "Operating Costs") but not including
Real Estate Taxes (as hereinafter defined), Utility and
Energy Costs, depreciation of Building or equipment;
principal or interest; income or excess profits taxes;
costs of maintaining Lessor's corporate existence;
franchise taxes; any expenditures required to be
capitalized (an "Included Capital Improvement") under
generally accepted accounting principles, unless said
expenditures are for the purpose of reducing Operating
Costs within the Building and Office Building Area (and
in such instance
35
only to the extent of savings generated in connection
therewith or the amortized amount as provided herein, if
less) or are required under any mandatory governmental
law, ordinance or regulation, in which event the costs
thereof shall be included, but only to the extent of the
amortization of such Included Capital Improvement over
the useful life thereof; leasing commissions; tenant
work allowances (or work done for tenants); brokerage
commissions,; origination fees, points, mortgage
recording taxes, title charges and other costs or fees
incurred in connection with financing or refinancing or
sale or transfer of the Building or any portion thereof
or any interest therein; attorneys fees in connection
with leasing of space (or surrender, modification,
termination, extension or enforcement of any lease); any
expense paid to any related entity to the extent such
payment exceeds competitive charges in a bona fide
arms-length transaction; marketing, promotion and
advertising expenses; ground rent. As used in this
Subsection 22(A), the Base Period Costs for Operating
Costs shall be as defined in the Preamble.
(B) Fuel, Utilities and Electric Cost Escalation (hereinafter
"Utility and Energy Costs"). If during the Lease Term the
Utility and Energy Costs, including any fuel surcharges or
adjustments with respect thereto, incurred for water, sewer,
gas, electric, other utilities and heating, ventilating and
air conditioning for the Building to include all leased and
leasable areas (not separately billed or metered within the
Building) and Common Facilities electric lighting, water,
sewer and other utilities for the Building and Office Building
Area, for any Comparison Period shall be greater than the Base
Utility and Energy Costs (adjusted proportionately if the
Comparison Period is less than a calendar year), then Lessee
shall pay to Lessor, as Additional Rent, Lessee's Percentage
of all such excess Utility and Energy Costs. As used in this
Subsection 22(B), the Base Period Costs for Utility and Energy
Costs shall be as defined in the Preamble.
(C) Tax Escalation.
(i) If during the Lease Term the Real Estate Taxes for the
Building and Office Building Area at which the Demised
Premises are located for any Comparison Period shall be
greater than the Base Real Estate Taxes (adjusted
proportionately if the Comparison Period is less than a
calendar year), then Lessee shall pay to Lessor as
Additional Rent, Lessee's Percentage, as hereinafter
defined, of all such excess Real Estate Taxes.
36
(ii) As used in this Subsection 22(C), the words and terms
which follow mean and include the following:
(a) The Base Period Costs for "Real Estate Taxes"
shall be as defined in the Preamble.
(b) "Real Estate Taxes" shall mean the property taxes
and assessments imposed upon the Building and
Office Building Area including, but not limited
to, real estate, city, county, village, school and
transit taxes, or taxes, assessments or charges
levied, imposed, or assessed against the Building
and Office Building Area by any other taxing
authority, whether general or specific, ordinary
or extraordinary, foreseen or unforeseen. If due
to a future change in the method of taxation, any
franchise, income or profit tax shall be levied
against Lessor in substitution for, or in lieu of,
or in addition to, any tax which would otherwise
not constitute a Real Estate Tax, such franchise,
income or profit tax shall be deemed to be a Real
Estate Tax for the purposes hereof. Any franchise,
income or profit tax which is in addition to any
tax which would otherwise constitute a Real Estate
Tax be deemed a Real Estate Tax if such tax is
customarily treated as a Real Estate Tax by the
owners of comparable office buildings in the
vicinity of the Building. Notwithstanding anything
contained herein to the contrary, Lessee shall
assume and pay to Lessor in full at the time of
paying the Term Basic Rent any excise, sales, use,
gross receipts or other taxes (other than an
income or excess profits tax) which may be imposed
on or measured by such Term Basic Rent or
Additional Rent or may be imposed on Lessor or on
account of the letting or which Lessor may be
required to pay or collect under any law now in
effect or hereafter enacted, but only to the
extent such taxes are imposed in lieu of or as a
substitute for the whole or any part of the
impositions that now constitute Real Estate Taxes.
(iii) The following shall be executed from Real Estate Taxes:
(a) except as expressly provided herein, any income,
excess profit taxes, capital stock taxes, federal
or state inheritance taxes, or estate taxes;
37
(b) any license fee, business license fee, charge,
penalty or similar imposition or charge imposed by
a taxing authority except and only to the extent
that such charge or fee is levied or assessed in
lieu of a traditional ad valorem property tax; and
(c) any tax or assessment against property, real or
personal, of any firm, person, corporation or
other entity other than Lessor, including any
Lessee in the Building.
(D) Payment.
(i) At any time, and from time to time but no more than
twice in any calendar year for each of the escalation
categories (unless otherwise required pursuant to a
mortgage encumbering the Premises), after the
establishment of the Base Period Costs for each of the
categories referred to above, Lessor shall advise Lessee
in writing of Lessee's Percentage with respect to each
of the categories as estimated for the current Lease
Year and for each succeeding calendar year or
proportionate part thereof if the last period prior to
the Lease's termination is less than twelve (12) months
as then known to Lessor, and thereafter, Lessee shall
pay as Additional Rent, Lessee's percentage of the
excess of these costs over the Base Period Costs for the
then current period affected by such advice (as the same
may be periodically revised by Lessor as additional
costs are incurred, subject to the terms and conditions
hereof) in equal installments along with the payment of
Monthly Basic Rent on the first day of each month, such
new rates being applied to any months for which the
Monthly Basic Rent shall have already been paid which
are affected by the Operating Cost Escalation and/or
Utility and Energy Cost Escalation and/or Tax Escalation
Costs above referred to, as well as the unexpired months
of the current period, the adjustment for the then
expired months to be made at the payment of the next
succeeding installment of Monthly Basic Rent, all
subject to final adjustment at the expiration of each
calendar year.
(ii) The Base Period Costs during the calendar year in which
the Expiration Date occurs shall be prorated based on
the number of days during such calendar year that are
within the Term.
(E) Books and Records. Lessor shall maintain books of account
which shall be open to Lessee and its representatives at all
reasonable times so that
38
Lessee can determine that such Operating, Utility, Energy and
Tax Costs have, in fact, been paid or incurred. Lessor shall,
for at least one (1) year after the end of the year in
question, keep files containing all such books, contracts,
instruments and other records with respect to such costs and
expenses. Lessee and/or Lessee's authorized employees,
accountants, auditors, agents or attorneys shall have the
right, upon reasonable notice to Lessor, to review, audit and
verify any and all such books, contracts, instruments and/or
records and to verify all monthly rent and/or any Additional
Rent. No such review or audit shall extend to periods of time
preceding the Rent Commencement Date, except to the extent
that any Operating Costs, Real Estate Taxes, Fuel and
Utilities Costs or Electric Costs related to such period are
or were being charged to Lessee, or form a material part of
the calculations relating to expenses or costs being charged
to Lessee. Lessor to the extent available shall furnish
Lessee, along with any xxxx or invoice relating to Real Estate
Taxes, with copies of the Real Estate Tax xxxx(s) applicable
thereto. Any disagreement with respect to any one or more of
said charges if not satisfactorily settled between Lessor and
Lessee with three (3) months after notice of such dispute is
served by either party, shall be referred by either party to
an independent certified public accountant to be mutually
agreed upon, and if such an accountant cannot be agreed upon,
the American Arbitration Association may be asked by either
party to select an arbitrator, whose decision on the dispute
will be final and binding upon both parties, who shall jointly
share any cost of such arbitration. Pending resolution of said
dispute, Lessee shall pay to Lessor the sum so billed by
Lessor subject to its ultimate resolution as aforesaid.
(F) Right of Review. Once Lessor shall have finally determined
said Operating, Utility and Energy or Tax Costs at the
expiration of a Lease Year, then as to the item so
established, Lessee shall only be entitled to dispute said
charge as finally established for a period of six (6) months
after such charge is finally established and communicated in
writing to Lessee, and Lessee specifically waives any right to
dispute any such charge at the expiration of said six (6)
month period.
(G) Occupancy Adjustment. If, with respect to Operating Cost
Escalation, as established in Subsection 22(A) hereof, and the
Utility and Energy Cost Escalation, as established in
Subsection 22(B) hereof, the Building is not ninety-five (95%)
percent occupied during the establishment of the respective
Base Periods, then the Base costs incurred with respect to
said Operating Cost or Utility and Energy Cost shall be
adjusted during any such period within the Base period so as
to reflect ninety-five (95%) percent occupancy. Similarly, if,
during any calendar year or
39
proportionate part thereof subsequent to the Base Period the
Building is less than ninety-five (95%) percent occupied then
the actual costs incurred for Operating Cost and Utility and
Energy Cost shall be increased during any such period to
reflect ninety-five (95%) percent occupancy so that at all
times after the Base Period, the Utility and Energy Cost or
Operating Cost shall be actual costs, but in the event less
than ninety-five (95%) percent of the Building is occupied
during all or part of the calendar year involved, the Utility
and Energy Cost and Operating Cost shall not be less than that
which would have been incurred and ninety-five (95%) percent
of the Building been occupied. The aforesaid adjustment shall
only be made with respect to those items that are in fact
affected by variations in occupancy levels. To the extent any
Operating Cost or Utility and Energy Cost is separately billed
or metered or paid for directly by any Building lessee, to
include but not be limited to Lessee, or for which Lessor
receives reimbursements, said space shall be considered vacant
space for purposes of the aforesaid adjustment.
Notwithstanding anything to the contrary contained in this
Lease, Lessor shall not include in its calculation of
Operating Costs or Utility and Energy Costs any costs for
services not provided for Lessee's benefit, either solely or
in connection with such services provided to other tenants at
the Building.
(H) Lessee shall pay to Lessor, as Additional Rent, within ten
(10) days after being invoiced, such amounts charged by Lessor
for any Common Facilities services provided to accommodate (at
Lessee's request) Lessee's sole use of the Building after
Building Hours. Such amounts shall be billed monthly, at a
rate equal to the number of hours during such prior month that
such services, if any, are provided for Lessee's exclusive use
of the Building after Building Hours, such dollar amount to be
reasonably determined by Lessor's engineer, from time-to-time.
23. LESSEE'S ESTOPPEL.
(A) Each party hereto (as applicable, the "Certifying Party")
shall, from time to time, within fifteen (15) days of the
other party's written request (the "Requesting Party"),
execute, acknowledge and deliver to such Requesting Party a
written statement certifying that the Lease is unmodified and
in full force and effect, or that the Lease is in full force
and effect as modified and listing the instruments of
modification; the dates to which the Monthly Basic Rent and
Additional Rent and charges have been paid; and, to the best
of such Certifying Party's knowledge, whether or not the
Requesting Party is in default hereunder, and if so,
specifying the nature of the default and any such other
information as the Requesting Party may request. It is
intended that any such statement delivered pursuant to this
40
Section may be relied on by a prospective purchaser of
Lessor's interest or mortgagee of Lessor's interest or
assignee of any mortgage of Lessor's interest or a permitted
assignee or subtenant of Lessee.
(B) The Certifying Party's failure to deliver such statement
within such time shall be conclusive upon such Certifying
Party that: (i) this Lease is in full force and effect and not
modified except as such Requesting Party may represent; (ii)
not more than one (1) installment of Monthly Basic Rent has
been paid in advance; (iii) there are no such defaults; and
(iv) notice to such Certifying Party shall be sent to such
Certifying Party's mailing address as set forth in this Lease.
Notwithstanding the presumptions of this Section, such
Certifying Party shall not be relieved of its obligation to
deliver said statement.
24. HOLDOVER TENANCY. If Lessee holds possession of the Premises after the Term
of this Lease, Lessee shall become a Lessee from month to month under the
provisions herein provided, but at a Monthly Basic Rent equal to the greater of
the fair market value of the Premises or two hundred (200%) percent of the
Monthly Basic Rent payable during the last full calendar month of the Term and
without the requirement for demand or notice by Lessor to Lessee demanding
delivery of possession of said Premises (but Additional Rent shall continue as
provided in this Lease), which sum shall be payable in advance on the first day
of each month, and such tenancy shall continue until terminated by Lessor, or
until Lessee shall have given to Lessor, at least thirty (30) days prior to the
intended date of termination, a written notice of intent to terminate such
tenancy, which termination date must be as of the end of a calendar month. The
time limitations described in this Section 24 shall not be subject to extension
for Force Majeure. Nothing herein contained shall be deemed to be a consent or
waiver by Lessor to a holdover by Lessee after the expiration or sooner
termination of this Lease. Lessee shall be liable for any and all damages
incurred by Lessor as a direct result of Lessee holding over following the
expiration or sooner termination of this Lease.
25. RIGHT TO SHOW PREMISES. Lessor may show the Premises to prospective
purchasers and mortgagees; and, during the twelve (12) months prior to
termination of this Lease, to prospective Lessees, during Building Hours on
reasonable notice to Lessee. Lessee shall be entitled to have a representative
accompany Lessor at the appointed time of entry; provided that such does not
unreasonably interfere with or prevent Lessor from taking the aforementioned
actions.
26. LESSEE IMPROVEMENT WORK AND LESSEE ALLOWANCE.
(A) Prior to June 30, 1999 (or in the event of delay caused by
Force Majeure, September 30, 1999, provided Lessee provides
Lessor with written notice explaining the circumstances
causing the completion delay), Lessee shall complete or cause
to be completed the work described in the first sentence
41
of subsection 21(A) and on Exhibit E annexed hereto (as the
same may be modified from time-to-time, subject to Lessor's
reasonable approval, the "Lessee Improvement Work"). Prior to
commencing any work at the Premises, Lessee, at its expense,
shall cause to be prepared and shall deliver to Lessor space
plans for the Lessee Improvement Work. Such space plans shall
be subject to the prior written approval of Lessor, which
approval shall not be unreasonably withheld or delayed. Upon
approval of the space plans for the Lessee Improvement Work,
Lessee shall cause construction plans and specifications (as
the same may be modified from time-to-time, subject to
Lessor's reasonable approval, the "Plans and Specifications")
for the Lessee Improvement Work to be prepared by an architect
mutually agreeable to the parties, it being agreed by Lessor
that CUH2A, Inc. is an acceptable architect. The Plans and
Specifications shall be subject to the prior written approval
of Lessor, which approval shall not be unreasonably withheld
or delayed. Lessee shall prepare a list of general contractors
and subcontractors from which Lessee will solicit bids for the
Lessee Improvement Work. Such list shall be delivered to
Lessor for its written approval, which approval shall not be
unreasonably withheld or delayed and shall be conveyed to
Lessee within seven (7) business days after receipt of such
list from Lessor. Upon Lessor's request, Lessee shall provide
Lessor with proof that such general contractors are bondable
by a surety company acceptable to Lessor.
(B) Except for the Lessee Allowance, Lessee shall be reasonable
for all hard and soft costs and expenses with respect to the
design and construction of the Lessee Improvement Work. All
Lessee Improvement Work shall be performed in strict
accordance with the Plans and Specifications approved by
Lessor (other than insubstantial changes), in compliance with
the provisions of Section 6 of this Lease, in a good and
workmanlike manner and in strict compliance with all
applicable ordinances, laws, rules and regulations and the
requirements of all insurance policies covering the Building,
which requirements shall be communicated to Lessee. Lessee
hereby guaranties completion of all Lessee Improvement Work,
in strict accordance with the provisions of this Section 26.
Upon completion of the Lessee Improvement Work, Lessee or
Lessee's contractor(s) shall obtain all governmental and
quasi-governmental permits, approvals, authorizations and
certificates required to perform the Lessee Improvement Work,
Lessee or Lessee's contractor(s) shall obtain final signoff(s)
from all applicable governmental and quasi-governmental
authorities with respect to the Lessee Improvement Work and
shall promptly deliver copies thereof to Lessor.
42
(C) Lessor hereby agrees to contribute towards the hard and soft
costs of the Lessee Improvement Work, a sum equal to: (a) the
lesser of: (i) the product of the Premises Area and Fifteen
Dollars and 00/100 ($15.00) or (ii) the actual out-of-pocket
costs and expenses incurred by Lessee for the design and
construction of the Lessee Improvement Work (except for the
costs and expenses incurred by Lessee to upgrade the Demised
Premises' electrical capacity to approximately 800 amps at
480/277 volts); and (b) in the event Lessee upgrades the
Demised Premises' electrical capacity as permitted by this
Lease, a portion of the actual out-of-pocket costs and
expenses incurred by Lessee up to an amount not to exceed
seven thousand five hundred dollars ($7,500) as follows: (i)
one hundred percent (100%) of such costs and expense up to the
first three thousand dollars ($3,000), (ii) fifty percent
(50%) of such costs and expenses, if any, in excess of the
first three thousand dollars ($3,000), up to twelve thousand
dollars ($12,000), and (ii) zero percent (0%) of such costs
and expenses, if any, in excess of twelve thousand dollars
($12,000) (the sum of the amounts described in clauses (a) and
(b) is referred to herein as the "Lessee Allowance"). Lessee
may include in the hard and soft costs, architect, engineer
and other consultant fees, general contractor costs, permits,
furniture relocation and assembly and reupholstery of
furniture. Following final completion of the Lessee
Improvement Work, Lessor shall disburse the Lessee Allowance
to Lessee within thirty (30) days of Lessee's request and upon
the furnishing of a final certificate of occupancy issued by
the applicable governmental authority, appropriate lien
waivers and the as-built Plans and Specifications for the
Lessee Improvement Work certified by the supervising
architect. Except for the Lessee Allowance, Lessor shall have
no obligation to make any improvements, alterations or
decorations to the Premises or any contributions or credits in
respect thereof.
27. WAIVER OF JURY TRIAL/NON-MANDATORY COUNTERCLAIMS.
IF LESSOR COMMENCES ANY SUMMARY PROCEEDINGS OR AN ACTION FOR NONPAYMENT OF
RENT, LESSEE SHALL NOT INTERPOSE ANY NON-MANDATORY COUNTERCLAIM OF ANY NATURE OR
DESCRIPTION IN ANY SUCH PROCEEDINGS OR ACTION. LESSEE AND LESSOR BOTH WAIVE A
TRIAL BY JURY OF ALL ISSUES ARISING IN ANY ACTION OR PROCEEDING BETWEEN THE
PARTIES HERETO OR THEIR SUCCESSORS, UNDER OR CONNECTED WITH THIS LEASE, OR ANY
OF ITS PROVISIONS.
28. LATE CHARGE. In addition to such other amounts to be paid by Lessee
following a default by Lessee under this Lease, Lessee, at Lessor's option,
shall pay as Additional Rent a "Late Charge" of four (4%) percent (but in no
event to exceed the maximum rate permitted by
43
applicable law) of any installment of Monthly Basic Rent or Additional Rent paid
more than fifteen (15) days after the due date thereof for each monthly period
or portion thereof that the same remains unpaid, such Late Charge to cover the
extra expense involved in handling delinquent payment.
29. INSURANCE.
(A) Lessee's Insurance.
(i) Lessee covenants that during the entire Term hereof, at
its sole cost and expense, Lessee shall obtain, maintain
and keep in full force and effect the following
insurance:
(a) "All Risk" property insurance against fire, theft,
vandalism, malicious mischief, sprinkler leakage
and such additional perils as are now, or
hereafter may be, included in a standard extended
coverage endorsement from time to time in general
use in the State of New Jersey upon property of
every description and kind owned by Lessee and/or
under Lessee's care, custody or control located in
the Building or within the Office Building Area or
for which Lessee is legally liable or installed by
or on behalf of Lessee, including by way of
example and not by way of limitation, all Lessee
Improvement Work, furniture, fixtures, fittings,
installations and any other personal property.
(b) Commercial General Liability Insurance coverage
(on an occurrence basis form) to include personal
injury, bodily injury, broad form property damage,
operations hazard, blanket contractual liability,
naming Lessor and Lessor's mortgagee or trust deed
holder and ground Lessor (if any and if required
by prior written notice from Lessor to Lessee) as
additional named insureds in an amount per
occurrence of not less than Five Million and
00/100 ($5,000,000.00) Dollars combined single
limit bodily injury and property damage by either
a policy for underlying coverage policy or in
combination with an excess coverage policy.
(c) Business interruption insurance in such amounts as
will reimburse Lessee for direct or indirect loss
of earnings attributable to all perils commonly
insured against by prudent lessees or assumed by
Lessee pursuant to this
44
Lease or attributable to prevention or denial of
access to the Premises, Building or Office
Building Area as a result of such perils.
(d) Worker's Compensation insurance in form and amount
as required by law.
(e) Any other form or forms of insurance or any
increase in the limits of any of the aforesaid
enumerated coverages or other forms of insurance
as Lessor or the mortgagees or ground lessors (if
any) of Lessor may reasonably require from time to
time if in the reasonable opinion of Lessor or
said mortgagees or ground Lessors said coverage
and/or limits become inadequate or less than that
commonly maintained by comparable Lessees in
comparable buildings in the Piscataway, New Jersey
area.
(ii) All insurance policies required pursuant to this
Subsection 29(A) shall be underwritten by insurers rated
A-(VIII) or better by A.M. Best Company who are licensed
to do business in the State of New Jersey and shall be
in form reasonably satisfactory from time to time to
Lessor. A certificate evidencing that such insurance is
in effect shall have been delivered to Lessor prior to
the date hereof. Such insurance certificate will provide
an undertaking by the insurers to notify Lessor and the
mortgagees or ground Lessors (if any) and of which
Lessee has notice of Lessor in writing not less than
thirty (30) days prior to any material change, reduction
in coverage, cancellation, or other termination thereof.
The foregoing notwithstanding, in the event that
Lessee's insurer's Best's rating is less than A-(VIII),
then Lessee may have such insurer underwrite the
aforesaid insurance but same shall be written with no
deductible.
(iii) In the event of damage to or destruction of the Building
and/or Premises, and such damage or destruction entitles
either Lessor or Lessee to terminate this Lease pursuant
to Section 9 hereof and the Lease is so terminated, then
such portion of Lessee's net insurance proceeds relating
to the Lessee Improvement Work and other leasehold
improvements and alterations which are so attached to
the Building that, had such damage not occurred, they
could not be removed without substantial damage to the
Building (but not Lessee's trade fixtures, equipment,
Removable Improvements, furniture or other personal
property of Lessee in the Premises)
45
("Lessee's Improvement Proceeds"), shall be allocated as
follows: (a) first, to Lessor an amount up to but not
more than the unamortized portion of the Lessee
Allowance paid to Lessee (computed on a straight-line
basis over the initial Term of this Lease), and (b) the
balance, if any, to Lessee. If the termination of the
Lease is due to damage to the Building, and if the
Premises have not been so damaged, Lessee will
relinquish to Lessor, in accordance with and subject to
the provisions subsection 5(C) of this Lease, all Lessee
Improvement Work and other leasehold improvements and
alterations which are so attached to the Building that,
had such damage not occurred, they could not be removed
without substantial damage to the building (but not
Lessee's trade fixtures, Removable Improvements,
equipment, furniture or other personal property of
Lessee in the Premises). In the event of damage to or
destruction of the Building and/or Premises and such
damage or destruction does not entitle Lessor and Lessee
to terminate this Lease pursuant to Section 9 hereof
and/or both elect not to do so, then Lessee's
Improvement Proceeds shall be allocated as follows: (x)
first, to Lessor an amount equal to the lesser of the
Lessee Allowance paid to Lessee, or an amount equal to
the Lessee Improvement Proceeds amount times a fraction
where (a) the numerator is the Lessee Allowance, and (b)
the denominator is the total cost of the Lessee
Improvement work, which shall be retained by Lessor
(subject to the provisions of the following sentence),
and (y) the balance, if any, to Lessee to be used for
Lessee's restoration obligations hereunder. To the
extent that any of Lessee's Improvement Proceeds are
paid to Lessor, such proceeds shall be held by Lessor in
trust, in an interest-bearing account and provided no
Event of Default has occurred and is continuing,
disbursed to Lessee following final completion of such
restoration work by Lessee, subject to the same
conditions for disbursement of the Lessee Allowance as
set forth in Section 26(C) of this Lease.
(iv) Lessee agrees that it will not keep or use in or upon
the Premises or within the Building or Office Building
Area any article which is prohibited by any insurance
policy in force from time to time covering the Building
or Office Building Area of which Lessee has knowledge
unless Lessee pays for any increase in insurance
premiums directly resulting therefrom and provided that
such increase is based upon competitive insurance
industry rates. In the event Lessee's occupancy or
conduct of business in or on the Premises or Building or
Office Building area, whether or not
46
Lessor has consented to the same, directly results in
any increase in premiums for insurance carried from time
to time by Lessor with respect to the Building or Office
Building Area, Lessee shall, within ten (10) days from
the date of Lessor's invoice therefor, (a) pay such
increase in premiums as Additional Rent, or (b) directly
communicate with the appropriate insurer in order to
dispute such increased premium charged to Lessor,
provided, however, that in the event that Lessee so
disputes such increased premium, Lessee shall pay to
Lessor the full amount of such charges and Lessor, if
Lessee is successful in negotiating a reduction in such
premium charges, or the refund thereof, shall promptly
reimburse Lessee for the proportionate amount of such
reduction or refund within ten (10) days after Lessor
recovers such adjustments. If Lessee ceases the activity
that resulted in the increase in premium, then provided
the insurer reduces the premium, Lessee will receive a
corresponding reduction. In determining whether
increased premiums are a direct result of Lessee's use
and occupancy, a schedule issued by the organization
computing the insurance rate on the Building or Office
Building Area showing the components of such rate shall
be conclusive evidence of the items and charges making
up such rate, subject to the provisions hereof. Lessee
shall promptly comply with all reasonable requirements
of the insurance authority or of any insurer now or
hereafter in effect relating to the Building, Office
Building Area or Premises.
(v) If any insurance policy carried by Lessor or Lessee
shall be canceled or cancellation shall be threatened or
the coverage thereunder reduced or threatened to be
reduced in any material way by reason of the use or
occupation of the Premises, Office Building Area or
Building or any part thereof by Lessee or any assignee
or sublessee of Lessee or anyone permitted by Lessee to
be upon the Premises, other than for the Permitted Use,
and if Lessee fails to remedy the conditions giving rise
to said cancellation or threatened cancellation or
reduction in coverage on or before the earlier of (a)
seventy-two (72) hours after notice thereof from Lessor,
or (b) prior to said cancellation or reduction becoming
effective, Lessee shall be in default hereunder and
Lessor shall have all of the remedies available to
Lessor pursuant to this Lease. Lessor represents and
warrants to Lessee that, as of the date hereof, Lessor
has notified its insurance company of Lessee's intended
use and occupancy of the Premises as described in the
definition of "Permitted Uses" and, to the Lessor's
actual knowledge, such use and occupancy by Lessee is
acceptable to Lessor's insurer and will
47
not adversely impact the maintenance or coverage of any
of Lessor's insurance policies covering the Building.
(B) Lessor's Insurance. Lessor covenants and agrees that throughout the
Term it will insure the Building (excluding any property with
respect to which Lessee is obligated to insure pursuant to
Subsection 29(A)(i)(a) above) against damage by fire and standard
extended coverage perils and public liability insurance in such
reasonable amounts with such reasonable deductibles as required by
any mortgagee or ground Lessor (if any), or if none, as would be
carried by a prudent owner of a similar building in the area;
provided, however, that Lessor shall at all times during the Term of
this Lease keep and maintain (i) insurance against loss by fire and
hazards covered by extended coverage in an amount at least equal to
80% of the insurable value of the Building, (ii) comprehensive
general liability insurance, including personal injury and property
damage coverage, with limits at least equal to those required by
Lessee hereunder, and (iii) rental abatement insurance against
abatement of loss of rent in case of fire or other casualty or
cause. Lessor may, but shall not be obligated to, take out and carry
any other forms of insurance as it or the mortgagee or ground Lessor
(if any) of Lessor may require or reasonably determine available.
All insurance carried by Lessor on the Building or Office Building
Area shall be included as an Operating Expense pursuant to
Subsection 22(A). Notwithstanding its inclusion as an Operating
Expense or any contribution by Lessee to the cost of insurance
premiums by Lessee as provided herein, Lessee acknowledges that it
has no right to receive any proceeds from any such insurance
policies carried by Lessor except as otherwise provided herein.
Lessee further acknowledges that the exculpatory provisions of this
Lease as set forth in Section 35 and the provisions of Subsection
29(A) as to Lessee's insurance are designed to insure adequate
coverage as to Lessee's property and business without regard to
fault and to avoid Lessor obtaining similar coverage for said loss
for its negligence or that of its agents, servants or employees
which could result in additional costs includable as part of
Operating Expenses which are payable by Lessee. Lessor will not
carry insurance of any kind on any Lessee Improvement Work or on any
of Lessee's furniture or furnishings, or on any fixtures, equipment,
appurtenances or improvements of Lessee under this Lease and Lessor
shall not be obligated to repair any damage thereto or replace the
same.
(C) Waiver of Subrogation. Any property insurance policy, which either
party obtains in connection with the Premises, Building or Office
Building Area shall include a clause or endorsement denying the
insurer any rights of subrogation against the other party (i.e.
Lessor or Lessee) for all perils covered by said policy.
48
30. NO OTHER REPRESENTATIONS. No representations or promises shall be binding on
the parties hereto except those representations and promises contained herein or
in some future writing signed by the party making such representation(s) or
promise(s).
31. QUIET ENJOYMENT. Lessor covenants that if, and so long as, Lessee pays the
Term Basic Rent, and any Additional Rent as herein provided, and performs the
covenants hereof, Lessor shall do nothing to affect Lessee's right to peaceably
and quietly have, hold and enjoy the Premises for the Term herein mentioned,
subject to the provisions of this Lease and to any mortgage or deed of trust to
which this Lease shall be subordinate, but subject to any of Lessee's rights
under any nondisturbance agreement.
32. INDEMNITY.
(A) Lessee is and shall be, except as otherwise provided herein, in
control and possession of the Demised Premises as provided herein,
and Lessor shall not be liable for any injury or damage to any
property or to any person happening on or about the Demised
Premises, or for any injury or damage to the Demised Premises, nor
to any property of Lessee, or of any other person contained therein,
unless such injury or damage is caused by or attributable to the
gross negligence or willful misconduct of Lessor, its agents,
servants, employees, contractors, licensees, or invitees.
(B) Lessee shall indemnify and save Lessor harmless against and from all
liabilities, claims, suits, fines, penalties, damages (except for
consequential damages), losses, fees, costs and expenses (including
reasonable attorneys' fees) which may be imposed upon, incurred by
or asserted against Lessor by reason of:
(i) Any work or thing done by Lessee, its agents or employees in,
on or about the Demised Premises or any part thereof,
including, but not limited to (except as otherwise agreed to
in writing by the other Building tenants, pursuant to Section
6 hereof), the interruption and/or diminution of Building
services provided to other tenants in the Building;
(ii) Any use, occupation, condition, operation by Lessee, its
agents or employees of the Demised Premises or any part
thereof or any occurrence in, on or about the Demised Premises
not caused by or attributable to the gross negligence or
willful misconduct of Lessor, its agents, servants, employees,
contractors, licensees, or invitees;
(iii) The negligence or willful misconduct of Lessee or any
sublessee or any employees, licensees or invitees of Lessee
occurring anywhere within the Premises, the Building or the
Building Office Area;
49
(iv) Any accident, injury (including death) or damage, unless
caused by the gross negligence or willful misconduct of
Lessor, its agents, servants, employees, contractors,
licensees or invitees, to any third party or property owned by
someone other than Lessee and not under the care, custody or
control of the Lessee occurring in, on or about the Demised
Premises; and
(v) Any failure on the part of Lessee to perform or comply with
any of the covenants, agreements, terms or conditions
contained in this Lease.
(C) The provisions of this Section 32 shall survive expiration or
earlier termination thereof.
(D) Lessor shall indemnify and save Lessee harmless against and from all
liabilities, claims, suits, fines, penalties, damages (except for
consequential damages), losses, fees, costs and expenses (including
reasonable attorneys' fees) which may be imposed upon, incurred by
or asserted against Lessee by reason of the gross negligence or
willful misconduct of Lessor or any employee, servant, agent, or
contractor of Lessor.
33. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this Lease shall apply
to, bind and inure to the benefit of Lessor and Lessee and their respective
heirs, successors, legal representatives and assigns, provided that nothing
herein shall be deemed to waive the provisions of Section 7 hereof. It is
understood that the term "Lessor" as used in this Lease means only the owner, a
mortgagee in possession or a master lessor of the Building and/or Building Area,
so that in the event of any sale of the Building and/or Building Area or of any
lease thereof or if a mortgagee shall take possession of the Premises, the
Lessor named herein shall be and hereby is entirely freed and relieved of all
covenants and obligations of Lessor hereunder accruing thereafter, and it shall
be deemed without further agreement that the purchaser, the ground lessee of the
Building, or the mortgagee in possession has assumed and agreed to carry out any
and all covenants and obligations of Lessor hereunder.
34. PARKING SPACES. Lessee's occupancy of the Demised Premises shall include the
use of those unassigned parking spaces as enumerated in the Preamble. Lessee
shall, upon request by Lessor, promptly furnish to Lessor the license numbers of
the cars operated by Lessee and its sublessees, licensees, invitees (on a
regular basis), concessionaires, officers and employees. If any vehicle of
Lessee, or of any sublessee, licensee, concessionaire, or of their respective
officers, agents or employees, is parked in any part of the Common Facilities
other than the employee parking area(s) designated therefor by Lessor, Lessee
shall pay to Lessor such reasonable charge as may be fixed by Lessor from time
to time. All amounts due under the provisions of this Section shall be deemed to
be Additional Rent. Nothing contained herein shall be deemed to impose any
obligation on Lessor to police the parking area. In no event shall the ratio or
parking spaces available for Lessee's use to square footage leased by less than
1 space per 250 rentable square feet.
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35. LESSOR'S EXCULPATION.
(A) Except as otherwise provided herein, Lessor shall not be liable to
Lessee for any loss suffered by Lessee including, but not limited to
(i) loss of or injury to Lessee or to Lessee's property or that for
which Lessee is legally liable including but not limited to theft or
burglary; or (ii) that which results from or is incidental to the
furnishing of or failure to furnish or the interruption in
connection with the furnishing of any service which Lessor is
obligated to furnish pursuant to this Lease; or (iii) any
interruption to Lessee's business. Nothing contained in the
preceding sentence shall be deemed to limit Lessor's liability
(excluding liability for consequential damages) resulting from
Lessor's gross negligence or willful misconduct; provided that in no
event shall Lessor be liable for any damage to improvements,
furniture, fixtures, fittings, installations or other property
covered by (or which should have been covered by) the "All Risk"
insurance required to be maintained by Lessee pursuant to Section
29(A)(i)(a) above.
(B) The aforesaid exculpatory Section is to induce the Lessor, in its
judgment, to avoid or minimize covering risks which are better
quantified and covered by Lessee either through insurance (or
self-insurance or combinations thereof if specifically permitted
pursuant to this Lease) thereby permitting potential cost savings in
connection with the Operating Expenses borne by Lessee pursuant to
Section 22.
36. RULES OF CONSTRUCTION/APPLICABLE LAW. Any table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. If any words or phrases in this Lease shall
have been stricken out or otherwise eliminated, whether or not any other words
or phrases have been added, this lease shall be construed as if the words or
phrases so stricken out or otherwise eliminated were never included in this
Lease and no implication or inference shall be drawn from the fact said words or
phrases were so stricken out or otherwise eliminated. Each covenant, agreement,
obligation or other provision of this Lease on either party's part to be
performed, shall be deemed and construed as a separate and independent covenant
of such party, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number of gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require. This Lease shall be governed and construed in accordance
with the laws of the State of New Jersey, without regard for any of its
conflicts of law principles. If any of the provisions of this Lease, or the
application thereof to any person or circumstances, shall to any extent by
invalid or unenforceable, the remained of this Lease, or the application of such
provision or provisions to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be affected thereby, and
every provision of this Lease shall be valid and enforceable to the fullest
51
extent permitted by law. In the event any provision of this Lease provides that
Lessor will not unreasonably withhold its consent or approval to any matter,
Lessee's sole and exclusive remedy, if it disputes whether Lessor unreasonably
withheld its consent, shall be to seek a declaratory judgment as to whether
Lessor unreasonably withholding its consent or approval to any matter.
37. BROKER. Lessor represents and warrants to Lessee that Newmark is Lessor's
sole broker with whom it has dealt or negotiated in bringing about this Lease,
and Lessee represents and warrants to Lessor that CB is Lessee's sole broker
with whom it has dealt or negotiated in bringing about this Lease. Lessor agrees
to pay any and all commission(s) owing to Newmark and CB in connection with this
transaction pursuant to the terms of a separate written agreement between Lessor
and each of Newmark and CB. Lessor and Lessee each hereby agree to indemnify and
hold the other harmless from any breach or claimed breach of their respective
foregoing representations, warranties and covenants.
38. PERSONAL LIABILITY. Notwithstanding anything to the contrary provided in
this Lease, it is specifically understood and agreed, such agreement being a
primary consideration for the execution of this Lease by Lessor, that there
shall be absolutely no personal liability on the part of the Lessor, its
constituent members (to include but not be limited to officers, directors,
partners and trustees), their respective successors, assigns or any mortgagee in
possession (for the purposes of this Section, collectively referred to as
"Lessor"), with respect to any of the terms, covenants and conditions of this
Lease, and that Lessee shall look solely to the equity of Lessor in the Building
and Building Area for the satisfaction of each and every remedy of Lessee in the
event of any breach by Lessor of any of the terms, covenants and conditions of
this Lease to be performed by Lessor, such exculpation of liability to be
absolute and without any exceptions whatsoever.
39. NO OPTION. The submission of this Lease for examination does not constitute
a reservation of or option for the Premises, and this Lease Agreement becomes
effective as a Lease Agreement only upon execution and delivery thereof by
Lessor and Lessee.
40. DEFINITIONS.
(A) Lessee's Percentage. The parties agree that Lessee's Percentage, as
defined in the Preamble, reflects and will be continually adjusted
to reflect the sum arrived at by dividing the gross square feet of
the area rented to Lessee (including an allocable share of all
Common Facilities) as set forth in the Preamble [the numerator],
plus any additional gross square footage leased from time to time
pursuant to this Lease, by the total number of gross square feet of
the entire Building (or additional buildings that may be constructed
within the Office Building Area) [the denominator], in each case
measured in accordance with BOMA standards. Lessor and Lessee agree
that on the date hereof the Building will be deemed to contain
64,871 rentable square feet. Lessor shall have the right to make
changes or revisions in the Common Facilities of the Building so as
to provide additional
52
leasing area; provided, however, that such changes shall not
materially reduce the services Lessor is required to provide Lessee
hereunder to the terms and conditions of this Lease. Lessor shall
also, subject to the terms and conditions hereof, have the right to
construct additional buildings in the Office Building Area for such
purposes as Lessor may deem appropriate and subdivide the lands for
that purpose if necessary, and upon so doing, the Office Building
Area shall become the subdivided lot on which the Building in which
the Demised Premises is located. If any service provided for in
Subsection 22(A) or any utility provided for in Subsection 22(B) is
separately billed or separately metered within the Building and not
so in the applicable base year, then the square footage so billed or
metered shall be deemed vacant and if applicable subject to the
Occupancy Adjustment set forth in Subsection 22(G).
(B) Common Facilities. Common Facilities shall include, by way of
example and not by way of limitation, the non-assigned parking
areas; lobby; elevator(s), if applicable; fire stairs; public
hallways; public lavatories; all other general Building facilities
that service all Building lessees; air conditioning rooms; fan
rooms; janitors' closets; electrical closets, telephone closets;
elevator shafts and machine rooms; flues; stacks; pipe shafts; and
vertical ducts with their enclosing walls relating to services
provided to all Building lessees. Lessee's use of those Common
Facilities not open to all Lessees is subject to Lessor's consent.
Lessor may at any time close temporarily any Common Facilities to
make repairs or changes therein or to effect construction, repairs
or changes within the Building or Office Building Area, or to
discourage non-lessee parking or to prevent the dedication of the
same, and may do such other acts in and to the Common Facilities as
in its reasonable judgment may be desirable to improve the
convenience thereof but shall always in connection therewith
endeavor to minimize any inconvenience to Lessee. Lessee shall have,
as appurtenant to the Demised Premises, the right to use, in common
with other lessees in the Building and the Office Building Area,
without limitation, the common walkways and driveways necessary for
access to the Building and the Office Building Area, and all other
parts of the Building and/or the Office Building Area, designed or
intended by Lessor for the use of all Building lessees generally.
(C) Force Majeure. Force Majeure shall mean and include those situations
beyond either party's control, including by way of example and not
by way of limitation, acts of God; accidents; strikes; shortages of
labor; supplies or materials; inclement weather; or, where
applicable, the passage of time while waiting, in good faith, for an
adjustment of insurance proceeds. Any time limits required to be met
by either party hereunder, whether specifically made subject to
Force Majeure or not, except those related to the payment of Term
Basic Rent or Additional Rent and except as to the time periods set
forth in Section 24, shall, unless specifically stated to the
contrary elsewhere in this Lease, be automatically extended by the
53
number of days by which any performance called for is delayed due to
Force Majeure.
(D) Building Hours. As used in this Lease, the Building Hours shall be
Monday through Friday, 8:00 a.m. to 6:00 p.m., and Saturdays from
8:00 a.m. to 1:00 p.m., excluding those holidays as set forth on
Exhibit D attached hereto and made a part hereof, except the Common
Facilities lighting in the Building and Office Building Area shall
be maintained for such additional hours as, in Lessor's reasonable
judgment, is necessary or desirable to insure proper operation of
the Building and Office Building Area. Notwithstanding the
foregoing, Lessee shall have access to the Premises seven (7) days
per week, twenty-four (24) hours per day, three hundred sixty-five
(365) days per year.
(E) Additional Rent. As used in this Lease, Additional Rent shall mean
all sums in addition to Term Basic Rent payable by Lessee to Lessor
pursuant to the provisions of this Lease.
41. LEASE COMMENCEMENT. Notwithstanding anything contained herein to the
contrary, Lessee may take possession of the Demised Premises on the date hereof
and Lessee shall be bound by, and comply with all of the provisions of this
Lease, except that Lessee shall not be required to pay any installment of Term
Basic Rent until December 1, 1998, when the first installment of Term Basic Rent
shall be due and payable.
42. NOTICES. Any notice by either party to the other shall be in writing and
shall be deemed to have been duly given only if delivered personally or sent by
registered mail or certified mail in a postpaid envelope addressed or sent by
recognized overnight courier service which provides written evidence of receipt
with next business day delivery specified, if to Lessee, at the following
address: Praecis Pharmaceuticals Incorporated, 0 Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx, 00000-0000, Attn: Chief Financial Officer, with a copy to the
Premises, Attn.: Xxxx X. Xxxxx, Ph.D., and with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000-0000, Attn.:
Xxxx X. Xxxx, Esquire; if to Lessor, at Lessor's address as set forth above,
with a copy to the Premises and with a copy to Dechert Price & Xxxxxx, Attn.:
Xxxxx X. Xxxxxxxxxx, Esq., 4000 Xxxx Atlantic Tower, 0000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, or, to either at such other address as
Lessee or Lessor, respectively, may designate in writing. Notice shall be deemed
to have been duly given if delivered personally, on delivery thereof, and if
mailed, upon the third (3rd ) day after the mailing thereof or if sent by
overnight courier service, upon the next business day after sending.
43. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor of a
lesser amount than the Monthly Basic Rent and additional charges payable
hereunder shall be deemed to be other than a payment on account of the earliest
stipulated Monthly Basic Rent and Additional Rent, nor shall any endorsement or
statement an any check or any letter
54
accompanying any check or payment for Basic Rent or Additional Rent be deemed an
accord and satisfaction, and Lessor may accept such check or payment without
prejudice to Lessor's right to recover the balance of such Basic Rent and
Additional Rent or pursue any other remedy provided herein or by law.
44. EFFECT OF WAIVERS. No failure by Lessor to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease, or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
by Lessor of full or partial Monthly Basic Rent or Additional Rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of such covenant, agreement, term or condition. No consent or waiver, express or
implied, by Lessor or of any breach of any covenant, condition or duty of Lessee
shall be construed as a consent or waiver to or of any other breach of the same
or any other covenant, condition or duty, unless in writing signed by Lessor.
45. TIME OF ESSENCE. Time shall be of the essence with respect to all dates and
time periods set forth in this Lease.
46. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE. Lessee agrees to give any
mortgagee and/or trust deed holder, by registered mail or overnight courier, a
copy of any notice of default served upon Lessor, provided that, prior to such
notice, Lessee has been notified in writing (by way of notice of assignment of
rents and leases or otherwise) of the address of such mortgagees and/or trust
deed holders. Lessee further agrees that, if Lessor shall have failed to cure
such default within the time provided for in this Lease, then such mortgagee
and/or trust deed holder shall have an additional thirty (30) days within which
to cure such default, or if such default cannot be cured within that time, then
such additional time as may be reasonably necessary, provided that within such
thirty (30) days, such mortgagee and/or trust deed holder has commenced and is
diligently pursuing the remedies necessary to cure such default (including but
not limited to commencement of foreclosure proceedings if necessary to effect
such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
47. LESSOR'S RESERVED RIGHTS. Lessor and Lessee acknowledge that the Premises
are in a Building which is not open to the general public. Access to the
Building is restricted to Lessor, Lessee, their agents, employees and to their
invited visitors. In the event of a labor dispute including a strike, picketing,
informational or associational activities directed at Lessee or any other
Lessee, Lessor and Lessee agree to cooperate in making any reasonably necessary
change in operating conditions to reasonably restrict pedestrian, vehicular or
delivery ingress and egress to a particular location. Additionally, Lessor
reserves unto itself all rights not granted Lessee, including by way of example
and not by way of limitation, the right to change the name by which the Building
is commonly known; provided that, to the extent appropriate, Lessor shall notify
Lessee when Lessor exercises any such right reserved to Lessor. Notwithstanding
the foregoing, Lessor shall not change the name or street address of the
Building except upon sixty (60) days prior written notice to Lessee, except that
if the street address of the Building is
55
modified by an entity other than Lessor or a person, firm, corporation or other
party related to or affiliated with Lessor, including any governmental entity,
the foregoing shall not be applicable.
48. CORPORATE AUTHORITY. Lessee represents and warrants that this Lease and
Lessee's execution of this Lease has been duly authorized and approved by the
Lessee's Board of Directors. The undersigned officers of Lessee, executing this
Lease on behalf of Lessee represent and warrant that they are officers of the
corporation with authority to execute this Lease on behalf of Lessee.
Concurrently with Lessee's execution and delivery of this Lease, Lessee will
provide Lessor with a Secretary's certificate attesting to a corporate
resolution confirming the aforesaid.
49. GOVERNMENT REQUIREMENTS. In the event of the imposition of mandatory
federal, state, or local governmental control, rules, regulations, or
restrictions on the use or consumption of energy or other utilities or with
respect to any other aspect of this Lease during the Term, both Lessor and
Lessee shall be bound thereby.
50. RENEWAL OPTION.
(A) Lessee shall have the right to extend the Term of this Lease for two
additional terms of five (5) years each commencing on the day
following the expiration of the initial or renewal Term, as
applicable, of this Lease (hereinafter referred to as the "Rent
Commencement Date of the Applicable Extension Term") provided that:
(i) Lessee shall give Lessor notice (hereinafter the "Extension
Notice") of its election to extend the term of this Lease,
which notice shall be given at least twelve (12) months prior
to the expiration date of the initial Term or first Extension
Term of this Lease, as applicable; and
(ii)
(a) Lessee has not assigned this Lease (other than pursuant
to Section 7(C) or in connection with a Provid Research
spin-off pursuant to Section 7(A)) or sublet more than
fifty percent (50%) of the Demised Premises to another
party (other than to a division, subsidiary or affiliate
of Lessee) which sublease is then in effect and there is
no continuing default, and no event has occurred which
with the giving of notice or the passage of time, or
both, would constitute a default on the part of Lessee
(for purposes of this Section 50, a "Default"), under
the Lease as of the time of the giving of the Extension
Notice and the Rent Commencement Date of the Applicable
Extension Term. Notwithstanding the foregoing, if a
Default exists on such date that Lessee gives Lessor an
56
Extension Notice, such notice will not be invalid as a
result of the existence of such Default; provided that
Lessee cures such Default and delivers evidence thereof
to Lessor within sixty (60) days from the date the
Extension Notice is given. If Lessee fails to cure such
Default and provide Lessor with evidence thereof within
such sixty (60) day period, then the Extension Notice
shall become null and void upon notice from Lessor to
Lessee within seventy (70) days after the date the
Extension Notice is given and failure by Lessee to cure
the Default within five (5) days thereafter and this
Section 50 shall have no further force of effect and
shall be deemed deleted from this Lease.
(b) If Lessee timely gives the Extension Notice and the
conditions set forth in this subparagraph (ii) have been
satisfied or waived by Lessor, Lessee shall be
irrevocably bound to lease the Demised Premises
during the Applicable Extension Term on the terms
and conditions provided in this Section 50, including,
without limitation, at the Annual Base Rent
determined in accordance herewith. If Lessee does not
timely send an Extension Notice pursuant to this
Section 50A, this Section 50 shall have no force or
effect and shall be deemed deleted from this Lease.
(B) The Annual Basic Rent payable by Lessee to Lessor during the first
Extension Term shall be increased to ninety-five (95%) percent of
the fair market rent for the Premises and shall be increased to the
fair market value of the Premises for the second Extension Term, but
with the base years for Base Operating Costs, Base Real Estate Taxes
and Base Utility and Energy Costs being adjusted to the calendar
year commencing on the January 1 preceding the Rent Commencement
Date of the Applicable Extension Term. Fair market rent shall be
determined by Lessor, subject to the right of Lessee to arbitrate
the amount of fair market rent as hereinafter provided. At least
twelve (12) months prior to the expiration date of the initial Term
or first Extension Term, as applicable, but in no event more than
fifteen (15) months prior to the expiration date of the initial Term
or first Extension Term, as applicable, Lessee may give Lessor
notice of its desire to determine Lessor's good faith estimate of
the fair market rent for the Premises applicable to such Extension
Term. Within thirty (30) days after Lessor receives such notice,
Lessor shall give Lessee notice of such estimate.
(C)
(i) In the event Lessee is entitled to extend the Term hereunder,
and timely gives the Extension Notice in accordance with the
provisions of Section 50A hereof, and Lessee thereafter
disputes the fair market rent as
57
determined by Lessor pursuant to Section 50B hereof then at
any time on or before the date occurring thirty (30) days
after Lessee has been notified by Lessor of the fair market
rent, Lessee may initiate the arbitration provided for herein
by giving notice from Lessee, which notice shall specify the
name and address of the person designated to act as an
arbitrator on its behalf.
(ii) Within ten (10) days after Lessor receives such notice from
Lessee, Lessor shall give notice to Lessee specifying the name
and address of the person designated to act as an arbitrator
on Lessor's behalf. If Lessor fails to notify Lessee of the
appointment of Lessor's arbitrator within such ten (10) day
period, then Lessee may request the appointment of the second
arbitrator in the same manner as hereinafter provided under
Paragraph 50C(iii) for the appointment of a third arbitrator
in a case where neither the two arbitrators appointed
hereunder nor the parties are able to agree upon such
appointment.
(iii) The two arbitrators so chosen shall meet within ten (10) days
after the second arbitrator is appointed, and if, within ten
(10) days after the second arbitrator is appointed the two
arbitrators do not agree upon the fair market rent, they shall
together appoint a third arbitrator. In the event of their
being unable to agree upon such appointment within fifteen
(15) days after the appointment of the second arbitrator, the
third arbitrator shall be selected by the Lessor and Lessee if
they can agree thereon within a further period of five (5)
days. If the Lessor and Lessee do not so agree, then Lessee,
on behalf of itself and Lessor and on notice to Lessor made
within thirty (30) days after the appointment of the second
arbitrator, may request such appointment by the American
Arbitration Association (or any successor organization
thereto) in accordance with its rules then prevailing or if
the American Arbitration Association (or such successor
organization) shall fail to appoint said third arbitrator
within thirty (30) days after such request is made, then
Lessee may apply within thirty (30) days after such thirty
(30) day period, on notice to Lessor, to a court of competent
jurisdiction for the appointment of such third arbitrator.
(iv) Each of the arbitrators selected as herein provided shall have
at least ten (10) years experience in the leasing and renting
of office space in first class buildings in Middlesex County,
New Jersey. In addition, each of the arbitrators shall be an
independent party not affiliated in any way with either Lessor
or Lessee.
(v) If a third arbitrator is chosen as provided in Section 50C
above, then such third arbitrator shall select either the fair
market rent determined by the
58
arbitrator appointed by or for Lessor or the fair market rent
determined by the arbitrator selected by Lessee; the third
arbitrator may not select any other amount, and may not "split
the difference" between the determinations of the arbitrators
selected or appointed by or for the parties. The third
arbitrator shall so determine the fair market rent of the
Demised Premises and render a written certified report of his
determination to both Lessor and Lessee within ten (10) days
after appointment of the third arbitrator.
(vi) Each party shall pay the fees and expenses of the original
arbitrator appointed by or for such party, and all other
expenses (not including the attorneys fees and similar
expenses of the parties which shall be borne separately by
each of the parties) of the arbitration shall be borne by the
parties equally. If a third arbitrator is selected or
appointed, the fees and expenses of the third arbitrator shall
be borne equally by parties hereto.
(vii) In the event Lessee initiates the aforesaid arbitration
process and as of the date of expiration of the initial Term
or first Extension Term, as applicable, of this Lease, the
amount of fair market rent for the applicable Extension Term
has not been determined, Lessee shall pay the amount of Rent
and Additional Rent payable from Lessor to Lessee hereunder,
and when the determination of fair market rent has actually
been made, an appropriate retroactive adjustment shall
promptly be made effective as of the Rent Commencement Date of
the Applicable Extension Term, if any, or the last day of the
initial Term or first Extension Term, as applicable.
(viii) If Lessee fails to timely initiate the arbitration process or
fails to timely request the appointment of an arbitrator by
the American Arbitration Association (or such successor
organization) or by such court of competent jurisdiction, time
being of the essence, the Lessor's determination of the fair
market rent under Section 50B above shall be conclusive.
(D) Intentionally Deleted.
(E) If the determination of fair market rent shall be made by
arbitrators as set forth herein resulting in the Annual Basic Rent
payable by Lessee during the applicable Extension Term being more
than one hundred fifteen (115%) percent of the Annual Basic Rent
payable by Lessee as of the then Expiration Date, then Lessee shall
have the right, exercisable by notice to Lessee given not later than
fifteen (15) days after the final determination of fair market rent
by the arbitrators, to rescind its exercise of the option to renew
the Term, in which event the Term shall be deemed to expire on the
later of (i) sixty (60) days after the exercise of such
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rescission by Lessee, or (ii) the then Expiration Date. If Lessee
shall exercise such right of rescission, Lessee shall be responsible
for the fees and expenses of the arbitrator appointed by Lessor and
the fees and expenses of any third arbitrator appointed hereunder,
and, if applicable, any increase in Monthly Basic Rent as set forth
in Section 24 of this Lease, if Lessee continues to occupy the
Premises beyond the then Expiration Date.
(F) Except as otherwise provided in this Section 50, Lessee's occupancy
of the Leased Premises during either Extension Term shall be on the
same terms and conditions as are in effect immediately prior to the
expiration of the initial Term or first Extension Term, as
applicable, of this Lease, provided, however, Lessee shall have no
further right to extend the Term of this Lease beyond the second
Extension Term (or the first Extension Term, if the renewable option
is not effectively exercised during the Initial Term).
(G) If this Lease is renewed for an Extension Term, then Lessor or
Lessee can request the other party hereto to execute an instrument
setting forth the exercise of Lessee's right to extend the Term of
this Lease and the terms of such extension, including, without
limitation, the last day of such Extension Term.
(H) If Lessee exercises its right to extend the Term of this Lease for
an Extension Term pursuant to this Section 50, then the word "Term",
and the phrases "the Term of this Lease" or "the Term hereof", as
used in this Lease, shall be construed to include, when practicable
and appropriate, in Lessor's reasonable discretion, the applicable
Extension Term.
(I) For the purpose hereof fair market value shall be the rate a
prospective lessee would pay for rental of the Premises as of the
date which is the Rent Commencement Date of the applicable Extension
Term for the term of such Extension Term, taking into account all
relevant factors including, without limitation, determined (i) as if
the Premises were vacant and being placed on the market by Lessor
for rental to prospective Lessees who are not then occupants of the
Building, (ii) upon the assumption that the base years for Base
Operating Costs, Base Real Estate Taxes and Base Utility and Energy
Costs will be as provided in this Section, (iii) upon the assumption
that the Premises are to be leased "as is" in its then existing
condition for the applicable Extension Term on all of the terms
provided for in this Lease which are applicable to such Extension
Term, but expressly disregarding any enhancement to the fair market
rental value of the Premises on account of the value, in their then
existing condition, of alterations or installations in or to the
Premises, (iv) after considering costs and expenses (including,
without limitation, brokerage commissions, lost rental income during
any vacancy period and rent concessions) saved by Lessor by reason
of Lessor's not having to find a new Lessee for such space, (v)
after
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considering the nature of the standard work letter or work allowance
and other concessions and allowances then being offered by Lessors
of similar spaces in the vicinity to Lessees entering into new
leases for spaces of similar size and for similar terms and taking
into account the work letter provided herein, (vi) the age and
condition of the Building, (vii) the fact that Lessee will not incur
relocation costs, (viii) the remaining Term of this Lease, as well
as the portion of the Term then elapsed, (ix) the fact that the
Building is occupied by two (2) lessees, and (x) by taking into
account all other applicable circumstances.
51. SIGNS. No sign, advertisement or notice shall be affixed to or placed upon
any part of the Demised Premises which can be seen from the exterior of the
Premises or elsewhere in the Building by the Lessee, except in such manner, and
of such size, design and color as shall be reasonably approved in advance in
writing by the Lessor. Lessee may at its sole cost and expense construct and
maintain exterior signage, as set forth below. In the event Lessor approves any
sign(s) (including the sign(s) permitted to be installed pursuant to the
preceding sentence of this paragraph), Lessee shall, at its expense, keep such
sign(s) in good condition and repair and comply with all applicable governmental
ordinances and regulations related thereto. Lessee shall, at its expense, obtain
and maintain all necessary governmental approvals and permits required for the
erection and maintenance of the sign(s) and shall deliver copies thereof to
Lessor. No later than the last day of the Term, Lessee shall, at Lessee's
expense, remove all signs and repair all injury done by or in connection with
the installation or removal of the sign(s). Lessee shall have the right to
maintain the signs near the locations currently used by Hanover Insurance
Company (or lessee currently in the Building) or other location agreeable to
Lessor, provided that Lessee's signs are comparable in size and design to the
existing Hanover Insurance Company signs. Any material additions, changes or
alterations to such signs shall be subject to the Lessor's prior written
consent, not to be unreasonably withheld or delayed.
52. LESSEE'S RIGHT TO TERMINATE LEASE. Lessee shall have a one time right to
terminate this Lease, such termination to be effective November 30, 2005 by
giving at least twelve (12) months prior written notice, but no more than
fifteen (15) months prior written notice ("Termination Notice") thereof to
Lessor. In the event Lessee exercises its right to terminate the Lease as
provided herein, the Termination Notice shall be accompanied by a certified or
bank check payable to Lessor in the amount equal to One Hundred Fifty Thousand
Dollars ($150,000).
53. RIGHT OF FIRST OFFER.
(A) If at any time during the Tenn, Lessor shall desire to lease space
in the Building (any such space being referred to as the "Offer
Space"), then (subject to the right of first offer contained in the
lease between Lessor and Hanover Insurance Company, with respect to
space in the Building, as the same may be amended, extended, renewed
or otherwise modified from time to time) Lessor, before Lessor may
enter into a lease with a potential lessee for such Offer Space,
shall offer to Lessee the right to include the Offer Space within
the Premises upon all of
61
the terms and conditions of this Lease, except as provided for in
this Paragraph 53A. Lessee's right to lease the Offer Space is
subject to the condition that, at the time Lessee delivers Lessee's
Acceptance Notice (as hereinafter defined): (i) not more than
fifteen percent (15%) of the rentable space of the Demised Premises
shall have been subleased by Lessee to persons which are not
affiliates of Lessee (use by Provid Research or any other division
which is not a separate legal entity of Lessee shall be deemed use
by Lessee), (ii) and Event of Default shall not have occurred and be
continuing, and (iii) Lessee shall have unconditionally and
irrevocably waived in writing its right to terminate this Lease
pursuant to Paragraph 52 hereof. Any termination, cancellation or
surrender of Lessee's interest in this Lease prior to the date on
which Lessee delivers Lessee's Acceptance Notice shall automatically
terminate Lessee's right to lease any Offer Space. Notwithstanding
anything herein to the contrary, if there shall be less than three
(3) years remaining on the Term of this Lease (taking into account
an Extension Term if Lessee shall have exercised its right to extend
the Term for such Extension Term), Lessee shall not have any rights
under this Paragraph 53. By way of example if the initial term is to
expire in thirty-six (36) months, Lessee may only exercise its
option for Offer Space if it previously or concurrently delivers an
Extension Notice.
(B) In the event Lessor desires to lease space in the Building, Lessor
shall deliver a written offer to Lessee (hereinafter "Offer
Notice"), which shall provide the following information: (i) the
annual basic rent for the Offer Space, (ii) the location of and the
number of rentable square feet of space comprising the Offer Space,
(iii) the estimated delivery date of the Offer Space ("Offer Space
Delivery Date"), and (iv) any other material business terms relating
to the lease of the Offer Space. All terms, including the annual
basic rent, for the Offer Space shall be bona-fide terms.
(C) Lessee shall have the right to accept the offer set forth in the
Offer Notice by delivering to Lessor an unconditional and
irrevocable written acceptance thereof hereinafter called "Lessee's
Acceptance Notice") within five (5) business days after Lessee's
receipt of the Offer Notice. If Lessee does not timely deliver
Lessee's Acceptance Notice to Lessor within said five (5) business
day period, or if Lessee timely gives written notice of its
intention to decline to exercise the right to lease the Offer Space,
time being of the essence, Lessor shall be free to lease the Offer
Space to any prospective Lessee on terms and conditions that are not
materially more favorable to the prospective Lessee than those set
forth in the Offer Notice. In the event Lessor desires to lease the
Offer Space to a prospective lessee on terms and conditions that are
materially more favorable to the Lessee than those set forth in the
Offer Notice, Lessor shall first comply with the provisions of this
Paragraph 53 before leasing the space to any prospective lessee.
62
(D) Lessee's timely delivery of Lessee's Acceptance Notice shall be
deemed an irrevocable and unconditional agreement by Lessee to lease
the Offer Space on the terms and conditions set forth in this
Paragraph 53. Lessor shall give Lessee at least ten (10) days prior
written notice of the estimated Offer Space Deliver Date, which
estimate may be revised from time to time as appropriate, provided
that after any such revision Lessee shall receive at least ten (10)
days' prior written notice of the Offer Space Deliver Date. The
"Offer Space Rent Commencement Date" shall be the date on which the
Offer Space Deliver Date shall have occurred.
(E) If Lessor is unable to deliver the Offer Space to Lessee on the
estimated Offer Space Deliver Date due to the holding over or
retention of possession of a Lessee or sublessee of such space or
due to other reasons beyond Lessor's reasonable control, the
estimated Offer Space Delivery Date shall be extended by such period
of time that Lessor was so delayed. In such event, Lessor shall not
be subject to any liability for its failure to give possession of
such space to Lessee, and the validity of this Lease shall not be
impaired thereby and Lessee shall take possession of the Offer Space
when such space can be delivered to Lessee. Lessor hereby agrees to
use its good faith efforts to obtain possession of the Offer Space
on the estimated Offer Space Deliver Date. Notwithstanding the
foregoing, in the event that the Lessor is unable to deliver the
Offer Space within ninety (90) days (subject to extension due to
Force Majeure, or the acts of omissions of Lessee) from the initial
estimated Offer Space Deliver Date, then Lessee shall have the right
to terminate Lessee's acceptance of the Offer Space immediately upon
notice to Lessor.
(F) The following terms and conditions shall apply to the Offer Space:
(i) For purposes of calculating Additional Rent applicable to the
Offer Space, "Lessee's Percentage Share" with respect to the
Offer Space shall be a fraction, the numerator of which is the
number of rentable square feet of space in the Offer Space and
the denominator of which is the number of rentable square feet
of the Building as determined from time to time pursuant to
Section 40A hereof
(ii) Promptly following the Offer Space Rent Commencement
Date, Lessor and Lessee shall enter into a supplementary
agreement expressly confirming (a) the increase in the number
of square feet in the Premises, (b) the increase in the Annual
Basic Rent payable under this Lease, (c) the adjustment to the
Lessee Percentage and the Base Year applicable to the Offer
Space for purposes of computing Additional Rent, (d) the
increase in the number of parking spaces based on 4 parking
spaces for each 1000
63
rentable square feet of space in the Offer Space, and (e) the
Offer Space Rent Commencement Date.
(iii) The Annual Basic Rent and Additional Rent (except as expressly
set forth in Subsection F above) for the Offer Space shall be
payable by Lessee to Lessor commencing on the Offer Space Rent
Commencement Date (prorated for any partial month). Commencing
as of the Offer Space Deliver Date, all of the terms,
covenants and conditions of this Lease (including, but not
limited to the term hereof) shall thereafter be effective and
applicable in all respects to the Offer Space as if such space
had been included as part of the original Leased Premises,
except as specifically provided otherwise in this Paragraph
53.
(iv) Lessee must lease all Offer Space offered by Lessor at any one
time if it desires to lease any of such space, unless
otherwise agreed by Lessor and Lessee.
54. NON-COMPETE. Lessee hereby covenants and agrees that during the Term of this
Lease and any extension or renewal thereof, Lessee shall not permit the
following activities to occur at the Demised Premises: (i) engage in the
business of underwriting or distributing life insurance, including without
limitation the sale and/or distribution of annuities, variable products and/or
other investment related insurance products; (ii) engage in the business of
underwriting or distributing property and casualty insurance; (iii) engage in
the business of providing retirement plan products and/or services guaranteed
investment products; (v) engage in the business of providing group managed care
benefit programs, or (vi) erect any sign on or adjacent to the Building relating
to any of the foregoing activities.
55. USE OF ADDITIONAL FACILITIES. Lessor shall within thirty (30) days from the
date hereof submit a written request on Lessee's behalf, to Hanover Insurance
Company ("Hanover"), the other current tenant in the Building, asking Hanover to
allow Lessee's employees and invitees to use Hanover's cafeteria. Lessor shall
make reasonable efforts to ensure that people do not smoke in the outdoor area
adjacent to the Demised Premises.
56. REPRESENTATION OF CONDITIONS OF DEMISED PREMISES. LESSOR HAS LET THE DEMISED
PREMISES TO LESSEE IN ITS PRESENT "AS IS" CONDITION, WITHOUT ANY REPRESENTATION
OR WARRANTY OF ANY KIND OR NATURE, EXPLICIT OR IMPLIED, OTHER THAN THOSE
REPRESENTATIONS SPECIFICALLY SET FORTH IN THIS LEASE. IT IS UNDERSTOOD AND
AGREED THAT LESSOR IS UNDER NO DUTY TO MAKE ANY REPAIRS, ALTERATIONS, OR
DECORATIONS AT THE INCEPTION OF THIS LEASE OR AT ANY TIME HEREAFTER, EXCEPT AS
SPECIFICALLY SET FORTH IN THIS LEASE.
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57. COUNTERPARTS. This Lease may be executed in any number of counterparts, each
of which taken together shall constitute one and the same original.
[signatures appear on next page]
65
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
BDG PISCATAWAY, LLC, Lessor
By: BDG Piscataway, Inc.
By: /s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: President
PRAECIS PHARMACEUTICALS INCORPORATED,
Lessee
By: ___________________________________
Name: ___________________________
Title: __________________________
66
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
BDG PISCATAWAY, LLC, Lessor
By: BDG Piscataway, Inc.
By: ___________________________________
Name: ___________________________
Title: __________________________
PRAECIS PHARMACEUTICALS INCORPORATED,
Lessee
By: /s/ Xxxxx X. XxXxxxxxxx
-----------------------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Sr. V.P. and C.F.O.
67
EXHIBIT A
PREMISES
[Map of 10 Knightsbridge]
68
EXHIBIT X-0
XXXXXX XXXXXXXX XXXX
[Map of 00 Xxxxxxxxxxxxx Xxxx]
69
EXHIBIT B
BUILDING RULES AND REGULATIONS
1. Smoking is prohibited in all areas of the Building.
2. No common areas shall be obstructed nor shall refuse, furniture, boxes or
other items be placed therein by Lessee or its officers, agents, servants
or employees, or used for any purpose other than ingress and egress to and
from the Premises, or for going from one part of the Building to another
part of the Building. Lessor shall have the right to control and operate
the public portions of the Building, and the facilities furnished for the
common use of the Lessees, in such manner as Lessor deems best for the
benefit of the Lessees generally. No Lessee shall permit the visit to the
Demised Premises of persons in such numbers or under such conditions as to
interfere with the use and other public portions or facilities of the
Building without prior written consent of Lessor. Canvassing, soliciting
and peddling in the Building are prohibited.
3. Plumbing, fixtures and appliances shall be used only for the purpose for
which constructed, no other unsuitable material shall be placed therein.
4. No sign, directories, posters, advertisements, or notices shall be painted
or affixed on or to any of the windows or exterior doors, or in corridors
or other parts of the Building, except in such color, size and style and
in such places, as shall be first approved in writing by Lessor in its
discretion. Lessor shall have the right of remove all unapproved signs
without notice to the Lessee, at the expense of the Lessee. It is further
understood that furnishings in Lessee's area which are viewed from common
areas shall be subject to Lessor's approval.
5. Lessee shall not do or permit anything to be done in or about the Building
or bring or keep anything therein that will in any way increase the rate
of fire or other insurance on the Building, or on property kept therein or
otherwise increase the possibility of fire or other casualty.
6. Lessor shall have the right to prescribed the weight and position of heavy
equipment or objects which may over stress any portion of the floors of
the Premises. All damage done to the Building by the improper placing of
such heavy items will be repaired at the sole expense of Lessee.
7. Movement in or out of the Building of furniture or office equipment or
dispatch or receipt by Lessees of any bulky material, merchandise or
materials through the Building entrances or lobby shall be restricted to
such hours as Lessor shall
70
designate. All such movement shall be under the supervision of Lessor by
prearrangement with Property Management before performance.
Such prearrangement initiated by Lessee shall include determination by
Lessor and subject to this decision and control, as to the time, method,
and routing of movement and as to limitations for safety or other concern
which may prohibit any article, equipment or any item from being brought
into the Building. The Lessees are to assume all risks as to the damage to
articles moved and injury to persons or public engaged or not engaged in
such movement, including equipment, property, and personnel of Lessor if
damaged or injured as a result of an act in connection with carrying out
this service for a Lessee from time of entering property to completion of
work; and Lessor shall not be liable for acts of any persons engaged in or
any damages or loss of any said property or persons resulting from any act
in connection with such service performed for a Lessee.
8. Lessee shall notify Property Management when safes or other heavy
equipment are to be taken in or out of the Building, and such moving shall
only be done after written permission is obtained from Lessor on such
conditions as Lessor shall require.
9. Lessee shall cooperate with Lessor's employees in keeping Premises neat
and clean. Any person employed by any Lessee to do janitor work within the
Demised Premises must obtain Lessor's consent and such person shall, while
in the Building and outside of said Demised Premises, comply with all
instructions issued by building personnel.
10. Lessee shall not cause or permit any improper noises in the Building, or
allow any unpleasant odors to emanate from the Premises, or otherwise
interfere, injure or annoy in any way other Lessees, or persons having
business with them.
11. Each Lessee shall be responsible for all persons for whom he authorizes
entry into or exit out of the Budding, and shall be liable to the Lessor
for all acts of such persons.
12. The Lessor does not maintain or clean suite finishes which are
non-standard, such as kitchens, bathrooms, wallpaper, special lights, etc.
However, should the need for repairs arise, the Lessor will arrange for
the work to be done at the Lessee's expense.
13. No animals shall be brought into or kept in or about the Building, except
in the normal course of business.
14. Except as provided in the Lessee's lease, no machinery of any kind other
than that which is subject to normal business practices, such as
typewriters, calculators, and business computers, shall be operated on the
Premises without the prior written consent of Lessor, nor shall Lessee use
or keep in the Building any inflammable or
71
explosive fluid or substance, or any illuminating materials. No space
heaters or fans shall be operated in the Building.
15. No bicycles, motorcycles or similar vehicles will be allowed in the
Building.
16. There shall be no marking, painting, drilling into or in any way defacing
any part of the Demised Premises or the Building. No boring, cutting or
stringing of wires shall be permitted. Lessee shall not construct,
maintain, use or operate within the Demised Premises or elsewhere within
or on the outside of the Building, any electrical device, wiring or
apparatus in connection with a loud speaker system or other sound system.
17. Lessor has the right to evacuate the Building in the event of any
emergency or catastrophe.
18. No food and/or beverages shall be distributed from the Premises without
the prior written approval of the Property Management, except in
connection with the operation of vending machines installed for the
exclusive use of Lessee's employees or the operation of Lessee's lunch
room for Lessee's employees permitted under the Lease.
19. No additional locks shall be placed upon any door without the prior
written consent of Lessor. All necessary keys shall be surrendered upon
termination of Lessee's Lease, and Lessee shall then give Lessor or his
agent an explanation of the combination of all locks on the doors or
vaults.
20. Access plates to under floor conduits shall be left exposed. Where carpet
is installed, carpet shall be cut around access plates. Where Lessee
elects not to provide removable plates in their carpet for access into the
under floor duct system, it shall be the Lessee's responsibility to pay
for the removal and replacement of the carpet for any access needed into
the duct system at any time in the future.
21. Lessees will not relocate furnishings or cabinets adjacent to mechanical
or electrical access panels or over air conditioning outlets so as to
prevent operating personnel from servicing such units as routine or
emergency access may require. Cost of moving such furnishings for Lessor
access will be at Lessee's expense. The lighting and air conditioning
equipment of the Building will remain the exclusive charge of the Building
designated personnel.
22. Lessee shall comply with reasonable parking rules and regulations as may
be posted and distributed from time to time.
72
23. No portion of the Building shall be used for the purpose of sleeping or
lodging or for any illegal purpose.
24. Lessor shall not be responsible for lost or stolen personal property,
money or jewelry from Lessee's leased area or public areas regardless of
whether such loss occurs when area is locked against entry or not.
25. All requests for keys, locks or graphics must be submitted in writing to
the Management Office.
26. Solicitation of any kind is strictly forbidden unless approved in advance
by the Management Office.
27. It is strongly recommended that an A, B, C Multi-Purpose fire extinguisher
be kept in each Lessee's area in an accessible location.
28. Lessor reserves the right to rescind any of these rules and regulations
and to make such other and further rules and regulations as in its
reasonable judgment shall, from time to time, be needed for the safety,
protection, care and cleanliness of the Buildings, the operation thereof,
the preservation of good order therein and the protection and comfort of
the Lessees and their agents, employees and invitees, which rules and
regulations, when made and written notice thereof is given to a Lessee,
shall be binding upon it in like manner as if originally herein
prescribed.
73
EXHIBIT C
CLEANING SERVICES
SPECIFICATIONS FOR PROVID RESEARCH
Service
Days/Yr
*** ENTRANCE LOBBIES
* Fully Vacuum all carpets from wall to wall 260
* Spot clean door glass and side glass 260
* Vacuum walk-off mats 260
* Dust ledges, picture frames and moldings 260
*** OFFICES - CARPET
* Empty all trash receptacles and replace liners as necessary 260
* Remove all collected trash to designated area 260
* Dust all horizontal surfaces 52
* Dust all low reach areas 52
* Dust all surfaces above normal reach including xxxxx, ledges, 12
moldings, shelves, door frames, pictures and vents
* Spot clean all walls, light switches and doors 52
* Vacuum all carpeted traffic lane areas 260
* Using tank vacuum or backpack, vacuum corners, edges and 12
chairs, then traffic vacuum all carpeted areas
* Dust all venetian blinds 4
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*** CORRIDORS - CARPET
* Dust all low reach areas 52
* Dust all surfaces above normal reach, including stills, 12
ledges, moldings, shelves, door frames, pictures and
vents
* Vacuum all carpeted traffic lane areas 260
* Using tank vacuum or backpack, vacuum corners, edges 12
and chairs, then traffic vacuum all carpeted areas
*** RESTROOMS
* Refill dispensers, empty trash, clean and sanitize all 260
restroom fixtures, wipe all counters, clean mirrors,
wipe chrome, spot wipe partitions, sweep and damp mop
floors using a germicidal cleaner
* Full clean all showers 260
*** KITCHEN - (If applicable)
* Dust all low reach areas 52
* Dust all surfaces above normal reach including xxxxx, 12
ledges, moldings, shelves, door frames, pictures and
vents
* Wet mop entire area 52
* Using a standard floor machine, spray buff all hard 52
surface area
* Strip hard surface floor and recoat with three coats of 4
floor polish
*** MISCELLANEOUS
* This represents the minimum amount of supervision the 260
building may require
75
LAB SPACE REASONABLY DESIGNATED FROM TIME TO TIME BY THE PARTIES SHALL BE
SPECIFICALLY EXCLUDED FROM THIS EXHIBIT AND LESSEE SHALL CLEARLY XXXX SUCH AREAS
IN THE DEMISED PREMISES WHICH ARE NOT TO BE CLEANED BY LESSOR.
76
EXHIBIT D
BUILDING HOLIDAYS
Seven Holidays
Washington's Birthday
Memorial Day
July 4th
Labor Day
Thanksgiving Day
Christmas Day
New Year's Day
77
EXHIBIT E
LESSEE IMPROVEMENT WORK
PROVID RESEARCH, INC.
00 Xxxxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX
PROJECT DESCRIPTION
The 15,000 square feet of space at 10 Knightsbridge leased by Provid Research,
Inc. will be fit out to accommodate up to 24 researchers and six administrative
employees. The initial phase of work provides laboratory and office space for 12
researchers, general administrative offices and conference space, and laboratory
support space.
The space is organized according to functional and work flow needs. The
administrative and reception functions are at the main entrance. The laboratory
and associated researcher office space occupies the central portion of the
building along with a common library and employee amenity space. Laboratory
support spaces such as chemical storage and the NMR lab are located toward the
rear of the space, near the service entrance. A mechanical room for HVAC,
plumbing and electrical equipment is also at this location.
Current plans call for minimizing the amount of equipment on the roof. It is
expected that two large exhaust fans and a possible air intake serving the air
handling unit in the mechanical room will be located on the roof. Other
miscellaneous penetrations to support required equipment and functions - e.g.,
plumbing vents - will also be provided.
Site work includes a transformer and trenching for a new electrical service and
revisions to existing exterior stairs accommodate a scissors lift near the
service entrance. A chiller may also be located on grade adjacent to the service
entrance. A nitrogen tank will be located near the mechanical room. The only
exterior wall change anticipated at this time is the removal of windows in the
mechanical space and the installation of a louver to supply air to the air
handling unit.
The interior is characterized by open spaces visually connected with interior
glazing. This is not only intended to maximize natural light throughout the
facility, but to reinforce interaction between all staff members. The interior
windows are floor-to-ceiling aluminum or wood frames in offices. Matching frames
will be provided in the labs, but the xxxxx will be +/- 36" above the floor.
Doors will be solid core wood, painted or stained.
Interior partitions will be gypsum board on metal studs in most locations. They
will extend to the underside of the roof deck around the labs and conference
rooms. CMU partitions will enclose the mechanical room for sound control and
maintenance purposes. All will be painted.
Ceilings are primarily 8'-8" to align with the top of the exterior windows,
although the height in the laboratories is 9'-0" with a gypsum board fascia and
soffit constructed above those windows. The ceiling is up to 12'-0" high in a
very limited portion of the space to highlight the library. Lighting will be
primarily recessed deep cell parabolic lens fixtures with fluorescent lamps.
Laboratory casework will be either metal or wood units. Each lab module contains
two eight-foot long fume hoods. Laboratory services include hot and cold water,
nitrogen, vacuum, lab waste and power. All except lab waste will be distributed
overhead. The existing slab will be removed to accommodate the laboratory waste
line.
A single new 25,000 cfm air handling unit will serve both phases of the
laboratories. A VAV system design allows the unit to operate at reduced capacity
until the entire fit-out is complete. This unit will also serve the laboratory
support spaces and will provide some make-up air to the offices.
78
Office space will be served by the existing air handling unit located on a
mezzanine above the toilet rooms. Its capacity of 15,000 cfm is adequate to
serve most of the office needs with limited supplemental air furnished by the
new unit.
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[Map of Provid Inc. -- 00 Xxxxxxxxxxxxx Xxxx -- Xxxxxxxxxx, N.J.]
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EXHIBIT E-1
REMOVABLE IMPROVEMENTS
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EXHIBIT F
LESSOR'S ENVIRONMENTAL REPORTS
Phase I Environmental Site Assessment dated April 3, 1997 with appendices
March 3, 1997 letter from Xxxxxxx Xxxxx, NJDEP to Hanover Insurance
January 28, 1997 letter from Xxxxx Xxxx, NJDEP to Xxxxxx Hudschock, NJ Xxxxx,
Inc.
January 7, 1997 letter from Xxxx Xxxxxxx, XX Xxxxx, Inc. to NJDEP with
attachments
Site Investigation Report, dated January, 1997
Phase I Environmental Site Assessment, 00 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx, with appendices dated October ___, 1997
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EXHIBIT G
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Nondisturbance and Attornment Agreement ("Agreement")
dated as of ___________, 1998, is made by and among PRAECIS PHARMACEUTICALS,
INCORPORATED, a Delaware corporation, having an address at 0 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000 ("Tenant"), and _______________, a
___________________ corporation, having an address of ___________________,
______________________________ ("Lender"), and BDG PISCATAWAY, LLC, a New York
limited liability company, having an address at c/o Blumenfeld Development
Group, Ltd., 0000 Xxxxxxx Xxxxxxxx, Xxxxx 000X, Xxxxxxx, Xxx Xxxx 00000-0000
("Landlord").
1. Recitals.
1.1 Lease. Tenant is the lessee under a certain lease dated ____, 1998 (as
may be amended from time to time, the "Lease") of certain premises at 00
Xxxxxxxxxxxxx Xxxx (a/k/a 860 Centennial Avenue), Piscataway, New Jersey
(the "Leased Premises"), as described in the mortgage referred to below
(the "Mortgaged Property").
1.2 Mortgage. Lender is the holder of a Mortgage and Security Agreement
(the "Mortgage") from Landlord to Lender, covering Landlord's interest in
the Mortgaged Property, which Mortgage has been recorded at the Recorder's
Office of Middlesex County, New Jersey.
1.3 Consideration. In connection with the Mortgage, Lender has required
that Tenant subordinate Tenant's lien interest in the Mortgaged Property
under the Lease to the Mortgage and agree to attorn to the purchaser at
any foreclosure sale of the Mortgaged Property held under the Mortgage.
Tenant is willing to do so on the terms hereinafter set forth.
2. Agreements.
2.1 Covenants Regarding the Lease. Tenant agrees as follows:
(a) Tenant will not, without the prior written consent of Lender,
pay security deposits, rent or other amounts aggregating at
any time (specifically excepting prepayments for excess taxes,
operating expenses, utilities or similar charges) more than
thirty (30) days in advance under the Lease;
(b) Tenant will not, without the prior written consent of Lender,
amend or modify the Lease or any of the terms thereof, or,
except pursuant to terms of the Lease now existing, cancel,
terminate or surrender the Lease;
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(c) Tenant will not, without the prior written consent of Lender,
voluntarily subordinate the Lease to any other lien or
encumbrance.
2.2 Subordination of Lease. Tenant hereby agrees with Lender that the lien
interest of Tenant under the Lease shall be subject and subordinate to the
Mortgage and any renewals, extensions, modifications, consolidations or
replacements thereof and any advances thereunder.
2.3 Attornment by Tenant. Tenant agrees with Lender that, if the interest
of Landlord in the Mortgaged Property shall be transferred to and owned by
Lender or other entity by reason of foreclosure, deed in lieu of
foreclosure or otherwise, the Lease shall continue as a direct lease
between Tenant and the Lender or other entity, the Lender or other entity
shall recognize Tenant as the tenant under the Lease for the unexpired
balance of the term of said Lease and any extensions or renewals thereof,
and Tenant shall be bound to Lender or such other entity under all of the
terms, covenants and conditions of the Lease for the balance of the term
thereof remaining and any extensions or renewals thereof, with the same
force and effect as if Lender or such other entity were the lessor under
the Lease. Tenant hereby attorns to Lender or such other entity as its
landlord, said attornment to be effective and self-operative without the
execution of any further instruments on the part of any of the parties
hereto immediately upon Lender or such other entity succeeding to the
interest of the Landlord in the Mortgaged Property. Tenant agrees,
however, upon the election of Lender or such other entity and within
thirty (30) days of written demand by Lender or such other entity after it
acquires title to the Mortgaged Property, to execute an instrument in
recordable form in confirmation of the foregoing provisions.
2.4 Recognition and Nondisturbance. Lender agrees, with Tenant that, so
long as Tenant duly and promptly performs all of its obligations under the
Lease and hereunder, neither Lender nor any person, firm, partnership or
other entity claiming by, through or under Lender shall, in or after
taking possession of or acquiring title to the Mortgaged Property through
foreclosure proceedings, deed in lieu of foreclosure, or otherwise,
disturb the possession or other rights of Tenant under the Lease, and will
accept Tenant as lessee under the terms and conditions of, and for the
entire duration of, the term of the Lease, including any extensions and
renewals set forth in the Lease and any modifications or amendments
thereof to which Lender has previously agreed in writing, or which were in
effect prior to the date hereof. Lender, its successors and assigns, shall
not, however, be:
(a) liable for any breach, act of omission of any prior landlord
(including Landlord), except that nothing contained in this
Section 2.4(a) shall modify any liability of Lender for any
breach, act or omission which first
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occurs and continues after Lender takes possession of, or
acquires title to, the Mortgaged Property;
(b) subject to any offset or defense which Tenant might have
against any prior landlord (including Landlord), except that
nothing contained in this Section 2.4(b) shall modify any
right of offset or defense that Tenant may possess for any
breach, act of omission which first occurs and continues after
Lender takes possession of, or acquires title to, the
Mortgaged Property;
(c) bound by any payment of rent or additional rent (specifically
excepting prepayments for excess taxes, operating expenses,
utilities or similar charges) made by Tenant to Landlord more
than thirty (30) days in advance;
(d) bound by any security deposit which Tenant may have paid to
any prior landlord (including Landlord) unless such security
deposit has actually been delivered to Lender;
(e) bound by any amendment to, modification, extension or
termination of the Lease made after the date hereof without
the written consent of Lender; provided, however, that the
foregoing shall not include, and Lender shall be bound by, any
modification, extension or termination of the Lease pursuant
to the exercise by Tenant of any option currently contained in
the Lease; or
(f) bound by any provision in the Lease which obligates the
Landlord to erect or complete any building or to perform any
construction work or to make any improvements to the Mortgaged
Property or the Leased Premises; provided, however, that the
foregoing shall not negate any right which Tenant has or may
have under the terms of the Lease to terminate said Lease for
any failure to complete any construction or any improvements.
Notwithstanding the provisions of Article 2.4, specifically Section 2.4(e),
Lender may, at its election, choose to have the benefits of this Agreement with
respect to any amendment to, modification extension or termination of any Lease
entered into after the date of this Agreement without the written consent of
Lender.
The obligation of Lender to accept the attornment of Tenant and not to disturb
Tenant's possession of the Mortgaged Property under the Lease, as set forth
above, is expressly subject to the Tenant, at the time of Lender's taking
possession of or acquisition of title to the Mortgaged Property, not then being
in default beyond any cure period set forth in the Lease with respect to the
performance of any of Tenant's obligations under the Lease.
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2.5 Lender's Opportunity to Cure Landlord's Defaults. In the event that
Landlord defaults in the performance or observation of any of the terms,
conditions or agreements in the Lease, Tenant shall give written notice
thereof to Lender and Lender shall have the right (but not the obligation)
to cure such default. Tenant shall not take any action with respect to
such default under the Lease including, without limitation, any action in
order to terminate, rescind or avoid the Lease or to withhold any rental
thereunder, unless Lender, after receipt of such notice, fails to cure, or
cause to be cured, the specified default within a reasonable time, not to
exceed thirty (30) days, thereafter; but nothing herein shall be deemed to
impose any obligation on Lender to cure such default.
2.6 Lease Conditions. Tenant and Lender agree that this Agreement
satisfies any and all conditions or requirements in the Lease relating to
the subordination of the Lease to the Mortgage and the granting of a
nondisturbance agreement to Tenant by Lender. Any noncompliance with such
conditions is hereby waived. Tenant and Lender further agree that in the
event that there is any inconsistency between the terms and provisions
hereof and the terms and provisions of the Lease dealing with the
nondisturbance by Lender, the terms and provisions hereof shall be
controlling.
2.7 Assignment of Interest and Rents. Tenant acknowledges that Tenant has
notice that Landlord's interest under the Lease and the rent and all other
sums due thereunder have been assigned to Lender as part of the security
for the note secured by the Mortgage. In the event that Lender notifies
Tenant of a default under the Mortgage and demands that Tenant pay its
rent and all other sums due under the Lease to Lender, Tenant agrees that,
following Tenant's receipt of such notice, Tenant shall pay the rent and
all other sums due under the Lease to Lender. By its execution of this
Agreement, Landlord irrevocably directs Tenant to comply with this Section
2.7, notwithstanding any contrary direction, instruction or assertion by
Landlord. Such compliance shall not be deemed to violate the Lease, and
Landlord hereby releases Tenant from any and all claims arising out of
Tenant's compliance with this Section 2.7. Tenant shall be entitled to
full credit under the Lease for any rent or other sums paid to Lender
pursuant to this Section 2.7 to the same extent as if such rent or other
sums were paid directly to Landlord.
2.8 Election to Terminate. Tenant waives the provision of any statute or
rule of law now or hereafter in effect which may give or purport to give
Tenant any right or election to terminate or otherwise adversely affect
the Lease and the obligations of Tenant thereunder solely by reason of any
foreclosure proceeding in respect of the Mortgage.
2.9 Mortgagee's Interest. Anything herein or in the Lease to the contrary
notwithstanding, in the event that Mortgagee shall acquire title to the
Mortgaged Property, Mortgagee shall have no obligation, nor incur any
liability, in excess of Mortgagee's estate or interest, if any, in the
Mortgaged Property and Tenant shall look exclusively to such estate or
interest of Mortgagee, if any, in the Mortgaged Property for the payment
and discharge of any obligations imposed upon Mortgagee hereunder or
86
under the Lease, and Mortgagee is hereby released and relieved of any
other liability hereunder or under the Lease. Tenant agrees that with
respect to any money judgment which may be obtained or secured by Tenant
against Mortgagee, Tenant shall look solely to the estate or interest
owned by Mortgagee in the Mortgaged Property, and the Tenant will not
collect, or attempt to collect any such judgment out of the other assets
of Mortgagee.
3. General.
3.1 Notices. All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall be
considered as properly given (i) if mailed by first class United States
mail, postage prepaid, registered or certified with return receipt
requested, (ii) by delivering same in person to the intended addressee, or
(iii) by delivery to Federal Express or another independent, nationally or
locally recognized, third party commercial delivery service for same day
or next day delivery. Notice so mailed shall be effective on the earlier
to occur of (a) the date received, or (b) one business day after delivery
to Federal Express or such other delivery service, postage prepaid. For
purposes of notice, the address of Lender shall be the address set forth
herein or such other address as Lender shall have notified Tenant, in
writing, in accordance with this Section 3.1, and the address of Tenant
shall be PRAECIS PHARMACEUTICALS INCORPORATED, 0 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx, 00000-0000, Attn: Chief Financial Officer; with
a copy to the Premises, Attn.: Xxxx Xxxxx, Ph.D. and with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000-0000, Attn.: Xxxx X. Xxxx, Esquire or such other
address as Lender shall have notified Tenant, in writing, in accordance
with this Section 3.1, with a copy to the Leased Premises; provided,
however, that either party shall have the right to change its address for
notice hereunder to any other location within the continental United
States by the giving of ten (10) days' notice to the other party in the
manner set forth herein.
3.2 Captions for Convenience Only. The Article and Section entitlements
hereof are inserted for convenience of reference only and shall in no way
alter, modify, or define, or be used in construing the text of such
Articles or Paragraphs.
3.3 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties
hereto, which in the case of Lender shall expressly include any purchaser
at a foreclosure sale pursuant to the Mortgage, and such purchaser's
successors and assign.
3.4 Applicable Law. This Agreement shall be governed by the laws of the
state of New Jersey.
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3.5 Modification. This Agreement may not be modified except by an
amendment or other agreement in writing signed by the parties hereto or
their respective successors in interest. The terms, covenants and
conditions contained herein shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns,
specifically including but not limited to, Tenant's assignees and
subtenants, if any, and any purchaser at a sale of the Mortgaged Property
under or pursuant to the mortgage, include a transfer of title by deed in
lieu of foreclosure, if any.
[Signatures Commence on Next Page]
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WITNESS the execution hereof under seal as of the day and year first above
written.
"Tenant"
PRAECIS PHARMACEUTICALS,
INCORPORATED:
By: ________________________________
Name: __________________________
Title: _________________________
Hereunto duly authorized
"Lender"
______________________________________
By: ________________________________
Name: __________________________
Title: _________________________
Hereunto duly authorized
"Landlord"
BDG PISCATAWAY, LLC:
By: ________________________________
By: ____________________________
Name: __________________________
Title: _________________________
Hereunto duly authorized
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STATE OF ________________________ ss.
ss.
COUNTY OF ______________________ ss.
The foregoing instrument was ACKNOWLEDGED before me this ___ day
of_________, 20___ by ________________________ the _________ of a
_________________ on behalf of and as the free act and deed of said
_______________.
[SEAL]
______________________________________
Notary Public, State of ______________
My Commission Expires: Printed Name: ________________________
_________________________
[Acknowledgments Continue on Next Page]
90
STATE OF ________________________ ss.
ss.
COUNTY OF ______________________ ss.
The foregoing instrument was ACKNOWLEDGED before me this ___ day
of_________, 20___ by ________________________ the _________ of a
_________________ on behalf of and as the free act and deed of said
_______________.
[SEAL]
______________________________________
Notary Public, State of ______________
My Commission Expires: Printed Name: ________________________
_________________________
[Acknowledgments Continue on Next Page]
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STATE OF ________________________ ss.
ss.
COUNTY OF ______________________ ss.
The foregoing instrument was ACKNOWLEDGED before me this ___ day
of_________, 20___ by ________________________ the _________ of a
_________________ on behalf of and as the free act and deed of said
_______________.
[SEAL]
______________________________________
Notary Public, State of ______________
My Commission Expires: Printed Name: ________________________
_________________________
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EXHIBIT H
ROOF WARRANTIES CURRENTLY IN EFFECT
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FIRESTONE
MODIFIED BITUMEN STANDARD ROOF SYSTEM LIMITED WARRANTY
Warranty: #RG000886 FBPCO # H04335 Square Footage 67,499 s.f.
Building Owner: XXXXXXXXXX DEVELOPMENT GROUP
Building Identification: HANOVER INSURANCE
Building Address: 00 XXXXXXXXXXXXX XX
XXXXXXXXXX, XX 00000
Warranty Period: TWELVE (12) Years Beginning on 12/22/97
Roofing Contractor: INTEGRITY ROOFING, INC. (62626)
For the warranty period indicated above, Firestone Building Products Company
("Firestone"), Division of Bridgestone/Firestone, Inc., warrants to the Building
Owner ("Owner") above that Firestone will, subject to the Terms, Conditions,
Limitations, and Definitions set forth below, repair any leak in the Firestone
Modified Bitumen Roofing System ("System"). Firestone's repair obligation over
the life of this warranty is limited to the Owner's original cost of the System
installation.
TERMS, CONDITIONS, LIMITATIONS, AND DEFINITIONS
1. The System is limited to mean the Firestone brand membranes, Firestone
brand insulations, and other Firestone brand accessories when installed
in accordance with Firestone technical specifications.
2. In the event any leak should occur in the System: (a) the Owner must
give written notice to Firestone within thirty (3) days of any
occurrence of a leak. By notifying Firestone, the Owner authorizes
Firestone or its designee to investigate the cause of the leak. (b) If
upon investigation, Firestone determines that the leak is not excluded
under the Terms, Conditions, Limitations and Definitions set forth
below, the Owner's sole and exclusive remedy and Firestone's liability
shall be limited to the repair of the leak; (c) Should the
investigation reveal that the leak is excluded under the Terms,
Conditions, Limitations and Definitions set forth below, investigation
costs shall be paid by the Owner. Failure by Owner to pay for these
cost shall render this Modified Bitumen Standard Roof System Limited
Warranty ("Limited Warranty") null and void. If the cause of the leak
is determined by Firestone to be outside the scope of this Limited
Warranty, Firestone shall advise the
94
Owner of the type and/or extent of repairs required to be made at the
Owner's expense which, if the Owner property makes, will permit this
Limited Warranty to remain in effect for the unexpired portion of its
term. Failure by the Owner to make these repairs in a reasonable manner
and within a reason able time shall render the unexpired portion of its
term. Failure by the Owner to make these repairs in a reasonable manner
and within a reasonable time shall render this Limited Warranty null
and void. (d) Any dispute, controversy or claim between the Owner and
Firestone concerning this Limited Warranty shall be settled by final
and binding arbitration in accordance with the American Arbitration
Associations's rules for the construction industry.
3. Firestone shall have no obligation under this Limited Warranty unless
and until Firestone has been paid in full for all materials, supplies,
services, warranty costs and other costs which are included in, or
incidental to, the System.
4. Firestone shall have no obligation under this Limited Warranty, or an
other liability, nor or in the future if a leak of damage is cause by
(a) Natural forces, disasters, or acts of God including, but not
limited to, winds, hurricanes, tornadoes, hail, lightning, earthquakes,
atomic radiation, insects, or animals; (b) Any act(s), conduct or
omission(s) by any person, or act(s) or war, which damages the System
or which impairs the Membrane's ability to resist leaks (c) Failure by
the Owner to use reasonable care in maintaining the System, said
maintenance to include, but not limited to those items listed on the
reverse side of this Limited Warranty titled "Firestone Roofing Car and
Maintenance Requirements;" (d) Deterioration or failure of building
components, including, but not limited to, the roof substrate, walls,
mortar, HVAC units, etc.: (e) Condensation or infiltration of moisture
in, through, or around the walls, copings, rooftop hardware or
equipment, building structure or underlying or surrounding materials;
(f) any acid, oil, harmful chemical, chemical or physical reaction and
the like which come in contract with the System, which damages the
System, or which impairs the System's ability to resist leaks; (g)
Alterations or repairs to the System not approved in writing by
Firestone; (h) The architecture, engineering, construction or design of
the roof, roofing system, or building. Firestone does not undertake any
analysis of the architecture or engineering required to evaluate what
type of roof system is appropriate; (i) A change in building use or
purpose; (j) Failure to give proper notice as set forth in paragraph
1(a) above; (k) ponded water.
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5. This Limited Warranty shall be transferable subject to Firestone
inspection, written approval, and payment of the current transfer fee.
6. During the term of this Limited Warranty, Firestone, its designated
representative or employees shall have free access to the roof during
regular business hours. In the event that roof access is limited due to
security or other restrictions, Owner shall reimburse Firestone for
all reasonable costs incurred during inspection and/or repair of the
System which are due to delays associated with said restrictions.
Owner shall be responsible for the removal and replacement of any
overburdens, superstrata or overlays, either permanent or temporary, as
necessary to expose the surface of the System for inspection and/or
repair.
7. Firestone's failure to enforce any of the terms or conditions stated
herein shall not be construed as a waiver of such provision or of any
other terms and conditions of this Limited Warranty.
8. This Limited Warranty shall be governed and construed in accordance
with the laws of the State of Indiana without regard to conflict of
law.
FIRESTONE DOES NOT WARRANT PRODUCTS INCORPORATED OR UTILIZED IN THIS
INSTALLATION WHICH IS NOT FURNISHED. FIRESTONE SPECIFICALLY DISCLAIMS LIABILITY,
UNDER THE THEORY OF LAW, ARISING OUT OF THE INSTALLATION OR PERFORMANCE OR, OR
DAMAGES SUSTAINED BY OR CAUSED BY, PRODUCTS NOT FURNISHED BY FIRESTONE. THIS
LIMITED WARRANTY SUPERSEDES AND IS IN LIEU OF ALL WARRANTIES OR GUARANTEES
WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS
LIMITED WARRANTY SHALL BE THE OWNER'S SOLE AND EXCLUSIVE REMEDY AGAINST
FIRESTONE, AND FIRESTONE SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL,
INCIDENT OR OTHER DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR
DAMAGE TO THE BUILDING OR ITS CONTENTS OR THE ROOF DECK. THIS LIMITED WARRANTY
CANNOT BE AMENDED, ALTERED OR MODIFIED IN ANY WAY EXCEPT IN WRITING SIGNED BY
THE PRESIDENT OF FIRESTONE OR A PERSON TO WHOM HIS AUTHORITY HAS BEEN DELEGATED
IN WRITING. NO OTHER PERSON HAS ANY
96
AUTHORITY TO BIND FIRESTONE WITH ANY REPRESENTATION OR WARRANTY WHETHER ORAL OR
WRITTEN.
FIRESTONE BUILDING PRODUCTS COMPANY
By: Xxxxxx Xxxxxx
AUTHORIZED
SIGNATURE: /s/ Xxxxxx Xxxxxx
TITLE: Manager, Product Services
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FIRESTONE ROOFING CARE AND MAINTENANCE REQUIREMENTS
(For Modified Bitumen Standard Roof System Limited Warranty)
Congratulations on your purchase of a Firestone Roofing System! Your roof is a
valuable asset and as such should be properly maintained. All roofs and roofing
systems require periodic maintenance to perform as designed and to keep your
Limited Warranty in full force and effect.
1. The roof must be inspected at least twice yearly (in the Spring and
Fall), and after any severe storms. Record maintenance procedures as
they occur. Log all access times and parties working on the roof.
2. Proper maintenance and good roofing practice requires that podded water
(defined as standing water on the roof forty-eight (48) hours after its
stops raining) must not be allowed on the roof. Roofs must have slope
to drain and all drain are must remain clean. Bag and remove all debris
from the roof since debris on the roof surface with be quickly swept
into drains by rains. This will allow for proper water run-off and
avoid overloading the roof with podded water.
3. The Firestone Roofing System cannot be exposed to acids, solvents,
greases, oil, fats, chemicals and the like. If the Firestone Roofing
System is subject to contact with any such materials, contact Firestone
immediately.
4. The Firestone Roofing System is designed to be a waterproofing
membrane. If there is to be roof traffic for any reason, contact your
Firestone Licenced Applicator before proceeding for the installation of
approved protective walkways.
5. Firestone Roofing Membranes may require maintenance of the surface of
the membrane in order to perform as designed:
a. Smooth surface APP roofing membranes require the application
of an approved liquid coating, such as Aluminum Roof Coating.
If this coating is not applied as part of the initial roofing
installation, it must be applied within the first five year s
after the roof is installed. In addition, this coating should
be maintained as needed to recover any areas of the coating
that have blistered, peeled or worn through.
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b. Granule surfaced APP or SBS roofing membranes require the
applica tion of additional roofing granules wherever the
original factory application of granules has worn through due
to roof traffic or some other event.
6. All counterflashing, metal work, drains, skylights, equipment curb and
supports, and any other rooftop accessories functioning in conjunction
with the Firestone Roofing System must be properly maintained at all
times. In addition, roof sealants (including, but not limited to,
Firestone Pourable Sealer and General Purpose Sealant) are not covered
under this warranty and must be maintained per Firestone Technical
Specifications.
7. In any additional equipment is to be installed on your roof (e.g. HVAC
units, TV antennas, etc.), contact Firestone, in writing, for approval
before proceeding.
8. Should there be an addition to the building, requiring tie-in to the
existing Firestone Roofing System, contact Firestone before proceeding
to ensure the tie-in is in accordance with Firestone specifications.
9. Should you have a leak:
(a) Check for the obvious: clogged roof drains, loose
counterflashings, broken skylights, open grills or vents,
broken water pipes.
(b) Note conditions resulting in leakage. Heavy or light rain,
wind direction, temperature and time of day that the leak
occurs are all important clues to tracing roof leaks. Note
whether the leak stops shortly after each rain or continues to
drip until the roof is dry. If you are prepared with the
facts, the diagnosis and repair of the leak can proceed more
rapidly.
(c) Contact Firestone Warranty Claims at 0-000-000-0000
immediately...but please don't call until you are reasonably
sure that the Firestone Roofing System is the cause of the
leak.
Firestone feels that the preceding requirements will assist you, the building
owner, in maintaining a watertight roof for many years. Remember, your roof is
an invest ment. To maximize your return on this investment, maintenance is not
only essential, but required.
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FIRESTONE
BUILDING PRODUCTS
NOBODY COVERS YOU BETTER.
000 Xxxxxxxxxxxxx Xxxxxxxxx-Xxxxxx, XX 00000-0000
0-000-000-0000 0-000-000-0000 0-000-000-0000
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FIRESTONE
NOW THAT YOU HAVE A NEW FIRESTONE
ROOFING SYSTEM...
Congratulations on your purchase of a Firestone Roofing System! Your new roof is
a valuable asset and as such should be properly maintained. All roofs require
periodic maintenance to perform as designed and to keep your Limited Warranty in
full force and effect. The "Firestone Roofing Care and Maintenance Guidelines"
printed on the back of your Firestone Roof System Limited Warranty contain a
number of important items to assist you in maintaining a watertight roof for
many years. These maintenance guidelines recommend that the roof be inspected at
least twice yearly. Although this inspection can be performed by any qualified
person selected by you, FIRESTONE RECOMMENDS THAT AT LEAST ONE INSPECTION EVERY
YEAR BE CONDUCTED BY THE FIRESTONE LICENSED APPLICATOR WHO INSTALLED YOUR ROOF.
Whenever an inspection of the roof is performed, Firestone recommends that the
following items be included:
--------------------------------------------------------------------------------
1. ROOF CONDITIONS REQUIRING PERIODIC INSPECTION:
Periodic inspection of the following items is very important to assure that the
Firestone Roofing System has not been exposed to conditions not covered by
Firestone's Limited Warranty:
a. ROOF TRAFFIC & WALKWAYS: As stated in Firestone's System Design
Instructions for all Firestone Roofing Systems, "Walkways help protect
the membrane from damage due to necessary roof-top service traffic."
Please note that walkways should be maintained at all roof access
points, around all mechanical equipment which requires maintenance and
at all areas where roof traffic more frequent that once a month is
anticipated. IF, BECAUSE OF TRAFFIC REQUIREMENTS, WALKWAYS NEED TO BE
INSTALLED ON YOUR ROOF, CONTACT YOUR FIRESTONE LICENSED APPLICATOR
BEFORE PROCEEDING.
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b. DISCHARGES: All components of the Firestone roof system must be
protected from discharges, such as petroleum products, greases, oils
and fats, acids and the like. If the building will have any such
discharges, please contact Firestone for suggested methods of
protection. IF, BECAUSE OF THE PRESENCE OF CHEMICAL DISCHARGES,
PROTECTION MEASURES ARE RECOMMENDED, CONTACT YOUR FIRESTONE LICENSED
APPLICATOR BEFORE PROCEEDING.
c. Ponding Water: Proper maintenance and good roofing practice suggests
that ponded water (defined as standing water on the roof forty-eight
(48) hours after it stops raining) should not be allowed on the roof.
Roofs must have slope to drain and all drain areas must remain clean.
If podded water areas are observed on the roof that cannot be corrected
by periodic cleaning of drain areas, contact your Firestone License
Applicator.
x. Xxxxxx: The roof must be inspected after any severe storm,
especially after any storm that involves high sustained winds, heavy
wind gusts or tornado-like conditions. All roof surfaces should be
inspected for damage caused by wind-blown debris. The roof also should
be inspected after any hail or ice storm which could damage the roofing
system. If storm-related damage to the roof system is observed, contact
your Firestone Licensed Applicator before proceeding.
e. Moisture Infiltration: It is very important to inspect the roofing
system for moisture infiltration from sources excluded by Firestone's
Limited Warranty.
These sources can include but are not limited to:
1. Latent moisture in a pre-existing roofing system or roof
insulation remaining beneath the Firestone Roofing System.
2. Moisture infiltration in or through building walls,
copings, mortar joints and roof-top equipment.
3. Condensation of water vapor within the roofing system due
to temperature and humidity differentials.
Because inspection for moisture infiltration requires professional roofing
experience, Firestone strongly recommends that this inspection be performed by a
Firestone Licensed Applicator at least once a year.
102
2. NON-FIRESTONE MATERIALS
In some instances, non-Firestone supplied materials are used in conjunction with
Firestone Roofing Systems. These materials may include, but are not limited to
the following items:
a. Locally-fabricated sheet metal flashings.
b. Non-Firestone sealants at roof terminations.
c. Non-Firestone roof insulations.
d. Non-Firestone insulation fastening devices, including but not
limited to roofing screws, insulation plates, construction adhesives
and roofing asphalt.
e. Preservative-treated wood nailers and blocking.
f. Roof drains and drain inserts.
g. Pre-fabricated roof curbs.
h. Concrete walkway or ballast pavers.
x. Xxxxx ballast.
j. Roof coatings.
k. Penetration pocket sealants.
Because such items are not warranted by Firestone, it is important for you to
establish an ongoing inspection and maintenance program to assure that the
performance of non-Firestone materials does not adversely affect the
weathertight integrity of the Firestone roofing system. Sheet metal items should
be checked for weathertightness and re-anchored/recaulked as needed. Nailers and
blocking should be checked for soundness, and replaced or re-secured if
necessary. Roof drains and drain inserts should be cleared of any debris.
Sealants should be inspected for shrinking or cracking and replaced as required.
The integrity of roof insulation and insulation attachments should be verified.
Walkway pavers should be checked for cracking or splitting and replaced if
necessary. Ballast stone should be checked for deterioration due to freeze/thaw
conditions. In addition, all ballasted roofs should be inspected for localized
wind displacement of the ballast, especially along perimeter roof areas. In the
event ballast displacement is observed, the ballast should be re-dispersed
uniformly and the addition of larger ballast stones should be considered.
103
3. FIRESTONE PRODUCTS REQUIRING PERIODIC MAINTENANCE:
Some Firestone roof coatings and sealants require periodic maintenance to assure
long-term performance and to keep Firestone Limited Warranty in full force and
effect. These products include but are not limited to the following items:
x. Xxxxxxxxx Supplied Coatings.
x. Xxxxxxxxx S-10 Pourable Sealer.
x. Xxxxxxxxx General Purpose Sealant.
x. Xxxxxxxxx Metal Flashing.
Because such items must be maintained to keep the Firestone Limited Warranty in
full force and effect, it is important for you to establish an ongoing
inspection and maintenance program to assure that the performance of these
products does not adversely affect the weathertight integrity of the Firestone
roofing system. Roof coatings should be checked for cracking, peeling or
cracking and recoated as necessary. Sealants should be inspected for shrinkage
or cracking and replaced as required. Firestone metal flashing should be checked
for weathertightness and re-anchored/recaulked as needed. Maintenance to
Firestone products must be performed by a Firestone Licensed Applicator.
4. FIRESTONE PRODUCTS REQUIRING PERIODIC INSPECTION
Although the following Firestone products do not necessarily require periodic
maintenance to assure long-term performance, periodic inspection is very
important to assure that these products have not been exposed to conditions
excluded by Firestone's Limited Warranty:
a. The Firestone Roofing Membrane should be inspected for tears or
punctures caused by wind storms, falling objects, roof traffic and the like.
If the Firestone membrane is supplied with a factory applied coating, such as
roofing granules, the coating should be inspected for any discontinuities
caused by abrasion from wind, roof traffic or other sources. Tears, punctures
and abrasions to the membrane must be repaired by a Licensed Firestone
Applicator using Firestone specified repair procedures.
In addition, the membrane should be inspected for any contamination
from discharges, such as petroleum products, greases, oils and fats,
acids and the like. If any such discharges are observed on the
membrane, please contact Firestone for suggested methods of protection.
If, because of the presence of
104
chemical discharges, protection measures are recommended by Firestone,
contact your Firestone Licensed Applicator before proceeding.
FIRESTONE WALL FLASHINGS also should be inspected for tears, punctures,
abrasion and contamination from discharges, following the same
procedures as for the Firestone Roof Membrane.
--------------------------------------------------------------------------------
5. ROOF INSPECTIONS AND SAFETY:
Inspection of any roof should be undertaken only by qualified persons who are
familiar with safe roofing practice, including all applicable occupational
health and safety regulations relating to roofing and construction. FIRESTONE
RECOMMENDS THAT ALL ROOF INSPECTIONS BE PERFORMED BY A FIRESTONE LICENSED
APPLICATOR OR A SIMILAR ROOFING PROFESSIONAL.
--------------------------------------------------------------------------------
6. ARRANGING FOR PERIODIC ROOF INSPECTIONS:
Please note that the cost of periodic inspections of you roof, either by your
Firestone Licensed Applicator or by any other roofing professional, are not
included in the cost of your Limited Warranty. Firestone recommends that you
contact your Firestone Licensed Applicator to obtain a proposal for inspection
and maintenance services.
Firestone feels that the preceding guidelines will help you maintain a
watertight roof for many years. Whenever you have questions concerning your
roofing system, do not hesitate to contact your Firestone Licensed Applicator or
your local Firestone Sales Representative.
FIRESTONE
BUILDING PRODUCTS
NOBODY COVERS YOU BETTER.
000 Xxxxxxxxxxxxx Xxxxxxxxx-Xxxxxx, XX 00000-0000
0-000-000-0000 0-000-000-0000 0-000-000-0000
105
[Graphic regarding roof information]
106
[EXHIBIT I -- BUILDING SYSTEM WARRANTIES CURRENTLY IN EFFECT]
[NONE]
000
XXX XXXXXXXXXX, LLC
0000 XXXXXXX XXXXXXXX
XXXXXXX, XXX XXXX 00000-0000
August 19, 1998
Praecis Pharmaceuticals Incorporated
0 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxx XxXxxxxxxx
Re: Lease dated as of the date hereof (the "Lease") by and between
BDG Piscataway, LLC ("Lessor") and Praecis Pharmaceuticals
Incorporated ("Lessee") for certain space, as more
particularly described in the Lease (the "Demised Premises"),
in the building (the "Building") located at the property
commonly known as 00 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx (the "Office Building Area")
Dear Xx. XxXxxxxxxx:
Lessor and Lessee have entered into the above-referenced Lease with
respect to the Demised Premises. Capitalized terms used herein and not otherwise
defined shall have the meanings given to them in the Lease. Lessor and Lessee
have agreed to enter into this side letter regarding certain provisions of the
Lease. Notwithstanding anything to the contrary contained in the Lease, lessor
and Lessee, intending to be legally bound, agree as follows:
1. Lessor agrees that the insurance certificate to be delivered by Lessee
prior to the date of the Lease, pursuant to paragraph 29(A)(ii) of the
Lease, may be delivered to Lessor after the date of the Lease, but in no
event later than the date upon which Lessee takes possession of the
Demised Premises pursuant to paragraph 41 of the Lease.
2. Lessee acknowledges and agrees that the work to be performed by Lessor
pursuant to paragraph 19(A)(v) of the Lease has been completed.
3. Lessee agrees to pay within 10 days after being invoiced, as Additional
Rent, the amounts described in Schedule 1 attached hereto and made a part
hereof, for HVAC service provided, at the request of Lessee (such request
to be made within a reasonable period of time prior to requiring such
service), after Building Hours by Lessor to the Demised Premises (if any)
or to the Building for Lessee's sole benefit.
4. Lessor and Lessee each agree to insert the attached Exhibit E-1 into their
respective counterpart versions of the Lease, which the parties agree is
hereby incorporated into the Lease.
Unless explicitly set forth above, all other terms and conditions of
the Lease remain unchanged and in full force and effect. Kindly execute this
letter below to acknowledge your acceptance of the above provisions. This letter
may be executed in counterparts.
AGREED TO AND ACCEPTED BY:
Praecis Pharmaceuticals Incorporated
By: ___________________________
Name:
Title:
BDG Piscataway, LLC
By: BDG Piscataway, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
4. Lessor and Lessee each agree to insert the attached Exhibit E-1 into their
respective counterpart versions of the Lease, which the parties agree is
hereby incorporated into the Lease.
Unless explicitly set forth above, all other terms and conditions of
the Lease remain unchanged and in full force and effect. Kindly execute this
letter below to acknowledge your acceptance of the above provisions. This letter
may be executed in counterparts.
AGREED TO AND ACCEPTED BY:
Praecis Pharmaceuticals Incorporated
By: /s/ Xxxxx X. XxXxxxxxxx
-------------------------------
Name: Xxxxx X. XxXxxxxxxx
Title: Sr. V.P. and C.F.O.
BDG Piscataway, LLC
By: BDG Piscataway, Inc.
By: ______________________________
Name:
Title:
Schedule 1
An amount equal to the product of the Overtime Hours of HVAC service
provided by Lessor at Lessee's request during any given calendar month
multiplied by Fifty Dollars ($50). The foregoing dollar amount shall be subject
to increases from time to time upon at least thirty (30) days prior written
notice from Lessor to Lessee, such increases to reflect actual costs incurred by
Lessor to provide such additional HVAC service after Building Hours at Lessee's
request.
"Overtime Hours" means the aggregate number of hours electrical
energy is consumed or HVAC service is provided, as applicable, at all hours
other than Building Hours.
EXHIBIT E-1
Removable Improvements
1. Laboratory Benches;
2. Laboratory Hoods;
3. Nitrogen Tanks and Stands; and
4. all other items reasonably requested in writing by Lessor to be
designated as "Removable Improvements" in connection with Lessor's
approval of Lessee's Plans and Specifications, provided same shall
be reasonably agreed to in writing by Lessee.
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Nondisturbance and Attornment Agreement ("Agreement")
dated as of August 19, 1998, is made by and among PRAECIS PHARMACEUTICALS,
INCORPORATED, a Delaware corporation, having an address at 0 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000 ("Tenant"), and XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, a New York banking corporation, having an address of 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 ("Lender"), and BDG PISCATAWAY, LLC,
a New York limited liability company, having an address at c/o Blumenfeld
Development Group, Ltd., 0000 Xxxxxxx Xxxxxxxx, Xxxxx 000X, Xxxxxxx, Xxx Xxxx
00000-0000 ("Landlord").
1. Recitals.
1.1 Lease. Tenant is the lessee under a certain lease dated August 19,
1998 (as may be amended from time to time, the "Lease") of certain
premises at 00 Xxxxxxxxxxxxx Xxxx (a/k/a 860 Centennial Avenue),
Piscataway, New Jersey (the "Leased Premises"), as described in the
mortgage referred to below (the "Mortgaged Property").
1.2 Mortgage. Lender is the holder of a Mortgage and Security agreement
(the "Mortgage") from Landlord to Lender, covering Landlord's interest in
the Mortgaged Property, which Mortgage has been recorded at the Recorder's
Office of Middlesex County, New Jersey.
1.3 Consideration. In connection with the Mortgage, Lender has required
that Tenant subordinate Tenant's lien interest in the Mortgaged Property
under the Lease to the Mortgage and agree to attorn to the purchaser at
any foreclosure sale of the Mortgaged Property held under the Mortgage.
Tenant is willing to do so on the terms hereinafter set forth.
2. Agreements.
2.1 Covenants Regarding the Lease. Tenant agrees as follows:
(a) Tenant will not, without the prior written consent of lender,
pay security deposits, rent or other amounts aggregating at
any time (specifically excepting prepayments for excess taxes,
operating expenses, utilities or similar charges) more than
thirty (30) days in advance under the Lease.
(b) Tenant will not, without the prior written consent of Lender,
amend or modify the Lease or any of the terms thereof, or,
except pursuant to terms of the Lease now existing, cancel,
terminate or surrender the Lease;
(c) Tenant will not, without the prior written consent of Lender,
voluntarily subordinate the Lease to any other lien or
encumbrance.
2.2 Subordination of Lease. Tenant hereby agrees with Lender that the lien
interest of Tenant under the Lease shall be subject and subordinate to the
Mortgage and any renewals, extensions, modifications, consolidations or
replacements thereof and any advances thereunder.
2.3 Attornment by Tenant. Tenant agrees with Lender that, if the interest
of Landlord in the Mortgaged Property shall be transferred to and owned by
Lender or other entity by reason of foreclosure, deed in lieu of
foreclosure or otherwise, the Lease shall continue as a direct lease
between Tenant and the Lender or other entity, the Lender or other entity
shall recognize Tenant as the tenant under the Lease for the unexpired
balance of the term of said Lease and any extensions or renewals thereof,
and Tenant shall be bound to Lender or such other entity under all of the
terms, covenants and conditions of the Lease for the balance of the term
thereof remaining and any extensions or renewals thereof, with the same
force and effect as if Lender or such other entity were the lessor under
the Lease. Tenant hereby attorns to Lender or such other entity as its
landlord, said attornment to be effective and self-operative without the
execution of any further instruments on the part of any of the parties
hereto immediately upon Lender or such other entity succeeding to the
interest of the Landlord in the Mortgaged Property. Tenant agrees,
however, upon the election of Lender or such other entity and within
thirty (30) days of written demand by Lender or such other entity after it
acquires title to the Mortgaged Property, to execute an instrument in
recordable form in confirmation of the foregoing provisions.
2.4 Recognition and Nondisturbance. Lender agrees, with Tenant that, so
long as Tenant duly and promptly performs all of its obligations under the
Lease and hereunder, neither Lender nor any person, firm, partnership or
other entity claiming by, through or under Lender shall, in or after
taking possession of or acquiring title to the Mortgaged Property through
foreclosure proceedings, deed in lieu of foreclosure, or otherwise,
disturb the possession or other rights of Tenant under the Lease, and will
accept Tenant as lessee under the terms and conditions of, and for the
entire duration of, the term of the Lease, including any extensions and
renewals set forth in the Lease and any modifications or amendments
thereof to which Lender has previously agreed in writing, or which were in
effect prior to the date hereof. Lender, its successors and assigns, shall
not, however, be:
(a) liable for any breach, act or omission of any prior landlord
(including Landlord), except that nothing contained in this
Section 2.4(a) shall modify any liability of Lender for any
breach, act or omission which first occurs and
continues after Lender takes possession of, or acquires title
to, the Mortgaged Property;
(b) subject to any offset or defense which Tenant might have
against any prior landlord (including Landlord), except that
nothing contained in this Section 2.4(b) shall modify any
right of offset or defense that Tenant may possess for any
breach, act or omission which first occurs and continues after
Lender takes possession of, or acquires title to, the Mortgage
Property;
(c) bound by any payment of rent or additional rent (specifically
excepting prepayments for excess taxes, operating expenses,
utilities or similar charges) made by Tenant to Landlord more
than thirty (30) days in advance;
(d) bound by any security deposit which Tenant may have paid to
any prior landlord (including Landlord) unless such security
deposit has actually been delivered to Lender;
(e) bound by any amendment to, modification, extension or
termination of the Lease made after the date hereof without
the written consent of Lender; provided, however, that the
foregoing shall not include, and Lender shall be bound by, any
modification, extension or termination of the Lease pursuant
to the exercise by Tenant of any option currently contained in
the Lease; or
(f) bound by any provision in the Lease which obligates the
Landlord to erect or complete any building or to perform any
construction work or to make any improvements to the Mortgaged
Property or the Leased Premises; provided, however, that the
foregoing shall not negate any right which Tenant has or may
have under the terms of the lease to terminate said Lease for
any failure to complete any construction or any improvements.
Notwithstanding the provisions of Article 2.4, specifically Section 2.4(e),
Lender may, at its election, choose to have the benefits of this Agreement with
respect to any amendment to, modification extension or termination of any Lease
entered into after the date of this Agreement without the written consent of
Lender.
The obligation of Lender to accept the attornment of Tenant and not to disturb
Tenant's possession of the Mortgaged Property under the Lease, as set forth
above, is expressly subject to the Tenant, at the time of Lender's taking
possession of or acquisition of title to the Mortgaged Property, not then being
in default beyond any cure period set forth in the Lease with respect to the
performance of any of Tenant's obligations under the Lease.
2.5 Lender's Opportunity to Cure Landlord's Defaults. In the event that
Landlord defaults in the performance or observation of any of the terms,
conditions or agreements
in the Lease, Tenant shall give written notice thereof to Lender and
Lender shall have the right (but not the obligation) to cure such default.
Tenant shall not take any action with respect to such default under the
Lease including, without limitation, any action in order to terminate,
rescind or avoid the Lease or to withhold any rental thereunder, unless
Lender, after receipt of such notice, fails to cure, or cause to be cured,
the specified default within a reasonable time, not to exceed thirty (30)
days, thereafter; but nothing herein shall be deemed to impose any
obligation on Lender to cure such default.
2.6 Lease Conditions. tenant and Lender agree that this Agreement
satisfies any and all conditions or requirements in the Lease relating to
the subordination of the Lease to the Mortgage and the granting of a
nondisturbance agreement to Tenant by Lender. Any noncompliance with such
conditions is hereby waived. Tenant and Lender further agree that in the
event that there is any inconsistency between the terms and provisions
hereof and the terms and provisions of the Lease dealing with the
nondisturbance by Lender, the terms and provisions hereof shall be
controlling.
2.7 Assignment of Interest and Rents. Tenant acknowledges that Tenant has
notice that Landlord's interest under the Lease and the rent and all other
sums due thereunder have been assigned to Lender as part of the security
for the note secured by the Mortgage. In the event that Lender notifies
Tenant of a default under the Mortgage and demands that Tenant pay its
rent and all other sums due under the Lease to Lender, Tenant agrees that,
following Tenant's receipt of such notice, Tenant shall pay the rent and
all other sums due under the Lease to Lender. By its execution of this
Agreement, Landlord irrevocably direct Tenant to comply with this Section
2.7, notwithstanding any contrary direction, instruction or assertion by
Landlord. Such compliance shall not be deemed to violate the Lease, and
Landlord hereby releases Tenant from any and all claims arising out of
Tenant's compliance with this Section 2.7. Tenant shall be entitled to
full credit under the Lease for any rent or other sums paid to Lender
pursuant to this Section 2.7 to the same extent as if such rent or other
sums were paid directly to Landlord.
2.8 Election to Terminate. Tenant waives the provision of any statute or
rule of law now or hereafter in effect which may give or purport to give
Tenant any right or election to terminate or otherwise adversely affect
the Lease and the obligations of Tenant thereunder solely by reason of any
foreclosure proceeding in respect of the Mortgage.
2.9 Mortgagee's Interest. Anything herein or in the Lease to the contrary
notwithstanding, in the event that Mortgagee shall acquire title to the
Mortgaged Property, Mortgagee shall have no obligation, nor incur any
liability, in excess of Mortgagee's estate or interest, if any, in the
Mortgaged Property and Tenant shall look exclusively to such estate or
interest of Mortgagee, if any, in the Mortgaged Property for the payment
and discharge of any obligations imposed upon Mortgagee hereunder or under
the Lease, and Mortgagee is hereby released and relieved of any other
liability hereunder or under the Lease. Tenant agrees that with respect to
any money judgment
which may be obtained or secured by Tenant against Mortgagee, Tenant shall
look solely to the estate or interest owned by Mortgagee in the Mortgaged
Property, and the Tenant will not collect, or attempt to collect any such
judgment out of the other assets of Mortgagee.
3. General.
3.1 Notices. All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall be
considered as properly given (i) if mailed by first class United States
mail, postage prepaid, registered or certified with return receipt
requested, (ii) by delivering same in person to the intended addressee, or
(iii) by delivery to Federal Express or another independent, nationally or
locally recognized, third party commercial delivery service for same day
or next day delivery. Notice so mailed shall be effective on the earlier
to occur of (a) the date received, or (b) one business day after delivery
to Federal Express or such other delivery service, postage prepaid. For
purposes of notice, the address of Lender shall be the address set forth
herein or such other address as Lender shall have notified Tenant, in
writing, in accordance with this Section 3.1, and the address of Tenant
shall be PRAECIS PHARMACEUTICALS INCORPORATED, 0 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx, 00000-0000, Attn: Chief Financial Officer; with
a copy to the Premises, Attn: Xxxx Xxxxx, Ph.D. and with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000-0000, Attn: Xxxx X. Xxxx, Esquire or such other
address as Lender shall have notified Tenant, in writing, in accordance
with this Section 3.1, with a copy to the Leased Premises; provided,
however, that either party shall have the right to change its address for
notice hereunder to any other location within the continental United
States by the giving of ten (10) days' notice to the other party in the
manner set forth herein.
3.2 Captions for Convenience Only. The Article and Section entitlements
hereof are inserted for convenience of reference only and shall in no way
alter, modify, of define, or be used in construing the text of such
Articles of Paragraphs.
3.3 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of the parties
hereto, which in the case of Lender shall expressly include any purchaser
at a foreclosure sale pursuant to the Mortgage, and such purchaser's
successors and assign.
3.4 Applicable Law. This Agreement shall be governed by the laws of the
state of New Jersey.
3.5 Modification. This Agreement may not be modified except by an
amendment or other agreement in writing signed by the parties hereto or
their respective successors in interest. The terms, covenants and
conditions contained herein shall inure to the benefit
of and be binding upon the parties hereto and their respective successors
and assigns, specifically including but not limited to, Tenant's assignees
and subtenants, if any, and any purchaser at a sale of the Mortgaged
Property under or pursuant to the mortgage, include a transfer of title by
deed in lieu of foreclosure, if any.
3.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which taken together shall constitute one and the
same original.
[Signatures Commence on Next Page]
WITNESS the execution hereof under seal as of the day and year first
above written.
"Tenant"
PRAECIS PHARMACEUTICALS,
INCORPORATED
By: ________________________________________
Name: __________________________________
Title: _________________________________
Hereunto duly authorized
"Lender"
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Xxxxx X. Alto
--------------------------------------
Name: Xxxxx X. Alto
Title: Vice President
Hereunto duly authorized
"Landlord"
BDG PISCATAWAY, LLC:
By: BDG Piscataway, Inc.
By: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
Hereunto duly authorized
STATE OF ________________________ ss.
ss.
COUNTY OF ______________________ ss.
The foregoing instrument was ACKNOWLEDGED before me this ___ day of
____________, 19__ by _____________________________ the _________________ of a
_____________________ on behalf of and as the free act and deed of said
_______________________.
[SEAL]
______________________________________
Notary Public, State of ______________
My Commission Expires: Printed Name: ________________________
_________________________
STATE OF NEW YORK ss.
ss.
COUNTY OF NEW YORK ss.
The foregoing instrument was ACKNOWLEDGED before me this 24th day of
August, 1998 by Xxxxx X. Alto the Vice President of a corporation on behalf
of and as the free act and deed of said corporation.
[SEAL]
/s/ Xxxxxxxxx Xxxxxx
------------------------------------
Notary Public, State of New York
My Commission Expires: Printed Name: Xxxxxxxxx Xxxxxx
March 9, 2000
[Acknowledgments Continue on Next Page]
STATE OF NEW YORK ss.
ss.
COUNTY OF NASSAU ss.
The foregoing instrument was ACKNOWLEDGED before me this 26th day of
August, 1998 by Xxxxx Xxxxxxxxxx the Vice President of an LLC on behalf of
and as the free act and deed of said LLC.
[SEAL]
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Notary Public, State of New York
My Commission Expires: Printed Name: Xxxxxxx X. Xxxxxx
January 20, 2000
WITNESS the execution hereof under seal as of the day and year first
above written.
"Tenant"
PRAECIS PHARMACEUTICALS,
INCORPORATED
By: /s/ Xxxxx X. XxXxxxxxxx
--------------------------------------
Name: Xxxxx X. XxXxxxxxxx
Title: V.P. and C.F.O.
Hereunto duly authorized
"Lender"
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: ________________________________________
Name: __________________________________
Title: _________________________________
Hereunto duly authorized
"Landlord"
BDG PISCATAWAY, LLC:
By: BDG Piscataway, Inc.
By: ____________________________________
Name: ______________________________
Title: _____________________________
Hereunto duly authorized
STATE OF MASSACHUSETTS ss.
ss.
COUNTY OF ESSEX ss.
The foregoing instrument was ACKNOWLEDGED before me this 6th day of
August, 1998 by Xxxxx X. XxXxxxxxxx the V.P. and C.F.O. of a corporation on
behalf of and as the free act and deed of said corporation.
[SEAL]
/s/ Xxxx X'Xxxxxx
-------------------------------------
Notary Public, State of Massachusetts
My Commission Expires: Printed Name: Xxxx X'Xxxxxx
November 30, 1998
STATE OF ________________________ ss.
ss.
COUNTY OF ______________________ ss.
The foregoing instrument was ACKNOWLEDGED before me this ___ day of
____________, 19__ by _____________________________the _________________of a
_____________________ on behalf of and as the free act and deed of said
_______________________.
[SEAL]
______________________________________
Notary Public, State of ______________
My Commission Expires: Printed Name: ________________________
_________________________
[Acknowledgments Continue on Next Page]
STATE OF ________________________ ss.
ss.
COUNTY OF ______________________ ss.
The foregoing instrument was ACKNOWLEDGED before me this ___ day of
____________, 19__ by _____________________________ the _________________ of a
_____________________ on behalf of and as the free act and deed of said
_______________________.
[SEAL]
______________________________________
Notary Public, State of ______________
My Commission Expires: Printed Name: ________________________
_________________________
