Exhibit 10.4
THIS LEASE is made this 6th day of March, 1998, between COLLEGE ROAD
ASSOCIATES, LIMITED PARTNERSHIP, having an office at 0 Xxxxxxxx Xxx, Xxxxxxxxx
XX 00000, hereinafter called "Landlord", and Orchid Biocomputer Inc. with an
office located at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000,
hereinafter called `Tenant".
LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord,
subject to all of the terms and conditions hereinafter set forth, those certain
premises (the "Premises") as set forth in Items 1 of the Basic Lease Provisions
and as shown in the drawings attached hereto as Exhibit "A" being located on the
floor indicated in that certain office building (the "Building") and on that
certain lot (the "Parcel") together hereinafter referred to as (the "Project")
being located at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxx xx Xxxxxxxxxx, Xxxxxx of
Middlesex, State of New Jersey.
BASIC LEASE PROVISIONS
1. Location of Premises: 000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
2. Rentable Area of Premises: 30,894 rentable square feet
(28,085 usable s.f. x 1.10
= 30,894 rentable s.f.)
3. Tenant's Percentage Share: 50.35% (30,894/61,359)
4. Base Project Operating Expenses: Those incurred in the year 1999
5. Base Project Property Taxes: Those incurred in the year 1999
6. Basic Annual Rent: Years 1-5 @ $695,115.00 per annum
($22.50 psf) + all electric; and
Years 6-10 @ $726,009.00 per annum
($23.50 psf) + all electric
7. Basic Monthly Rental Installments: Months 1-60 @ $57,926.25 per month
+ all electric; and
Months 61-120 @ $60,500.75 per month
+ all electric
8. Term: Ten (10) years
9. Target Commencement Date: January 1, 1999
10. Security Deposit: $115,852.50 + a Letter of Credit in
the amount of $600,000.00 (see
Paragraph 4)
11. Parking Spaces: 124
12. Broker(s): Xxxxx & Xxxxx Company
13. Permitted Use: General Office, Development, Light
Assembly and R & D Laboratory
14. Addresses for Notices:
LANDLORD TENANT
College Road Associates, Orchid Biocomputer, Inc.
Limited Partnership 000 Xxxxxxx Xxxx Xxxx
0 Xxxxxxxx Xxx Xxxxxxxxx, Xxx Xxxxxx 00000
Xxxxxxxxx, XX 00000
15. All payments under this Lease shall be payable and sent to:
College Road Associates
0 Xxxxxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
or such other payee or address as Landlord may designate.
IN WITNESS WHEREOF, the parties hereto have executed this Lease, consisting
of the foregoing and Paragraphs I through 48 which follow, together with
Exhibits A through F inclusive, incorporated herein by this reference as of the
date first above written.
College Road Associates,
Limited Partnership
By: Z Xxxxxxxxx Center, L.P.,
Managing General Partner
By: Z Xxxxxxxxx Corp.,
General Partner
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: President
Orchid Biocompter, Inc.
By: /s/ Xxxx X. Xxxxx, Ph.D.
---------------------------------
Name: Xxxx X. Xxxxx, Ph.D.
Title: Chairman, President and CEO
0
XXXXX XX XXX XXXX:
:ss
COUNTY OF NEW YORK:
BE IT REMEMBERED, that on this 10th day of March, 1998, before me, the
subscriber, a Notary Public of the State of New York personally appeared Xxxx
Xxxxxxxx, of Z Xxxxxxxxx Corp., the General Partner of Z Xxxxxxxxx Center, L.P.,
the General Partner of College Road Associates, Limited Partnership, who, I am
satisfied, is the person who has signed the within instrument, and he did
acknowledge that he signed, sealed and delivered the same as such officer
aforesaid; and that the within instrument is the voluntary act and deed of said
corporation made by virtue of authority from its Board of Directors.
/s/ Xxxx X. Xxxxxxxxx
--------------------------------------------
XXXX X. XxXXXXXXX
Notary Public, State of New York
No. 4963923
Qualified in Westchester County
Commission Expires 3/19/1998
STATE OF NEW YORK:
:ss
COUNTY OF NEW YORK:
BE IT REMEMBERED, that on this 6th day of March, 1998, before me, the
subscriber, a Notary Public of the State of New Jersey personally appeared Xxxx
X. Xxxxx, Ph.D., president of Orchid Biocomputer, Inc., who, I am satisfied, is
the person who has signed the within instrument, and he did acknowledge that he
signed, sealed and delivered the same as such officer aforesaid; and that the
within instrument is the voluntary act and deed of said corporation made by
virtue of authority from its Board of Directors.
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
XXXXX X. XXXXXXXX
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES AUGUST 12 2001
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TABLE OF CONTENTS
PARAGRAPH PAGE
1. Commencement Date and Term 6
2. Basic Annual Rent 6
3. Additional Rent 7-11
4. Security Deposit 11
5. Repairs 12
6. Improvements and Alterations 12-14
7. Liens 14
8. Use of Premises 14-16
9. Utilities and Services 16-18
10. Rules and Regulations 19
11. Taxes on Tenant's Property 19
12. Substituted Premises 19
13. Fire and Casualty 20
14. Eminent domain 20-21
15. Assignment and Subletting 21-22
16. Landlord's Access to Premises 22-23
17. Subordination: Attornment; Estoppel Certificates 23
18. Sale by Landlord 24
19. Indemnification of Landlord and Insurance 24-26
20. Waiver of Subrogation 26
21. No Waiver 26
22. Default 27-29
23. Right of Landlord to Cure Tenant's Default 29-30
24. Notices 30
25. Insolvency or Bankruptcy 30
26. Surrender and Holdover 30-31
27. Condition of Premises 31
28. Quiet Possession 31
29. Limitation of Landlord's Liability 31-32
30. Governing Law 32
31. Common Facilities 32
32. Successors and Assigns 33
33. Brokers 33
34. Name 34
35. Examination of Lease 34
36. Additional Charges 34
37. Marginal Headings 34
38. Prior Agreements; Severability 35
39. Parking 35
40. Authority 35
41. No Light, Air or View Easement 35
42. Force Majeure 36
43. Attornment 36
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44. Common Area Maintenance Cost 36
45. Notice Regarding Tenant's Move In or Out 37
46. Option to Expand First Available Space 37-38
47. First Option to Renew 38
48. Second Option to Renew 38
Exhibit "A" Floor Plans
Exhibit "B1" Landlord's Work Letter
Exhibit "B2" Building Standard Work Letter
Exhibit "C" Commencement Date Memorandum
Exhibit "D" Rules and Regulations
Exhibit "E" Janitorial Specifications
Exhibit "F" Model Letter of Credit
5
COMMENCEMENT DATE AND TERM
PARAGRAPH 1
(A) The term of this Lease shall be as shown in Item 8 of the Basic Lease
Provisions and shall commence on the Target Commencement Date as shown in Item 9
of the Basic Lease Provisions or such earlier date as a Temporary Certificate of
Occupancy has been issued. Such date of commencement, hereinafter the
"Commencement Date", shall be confirmed by Landlord and Tenant by execution of a
"Commencement Date Memorandum" in a form substantially similar to Exhibit "C".
(B) Notwithstanding the Commencement Date, if for any reason Landlord
cannot deliver possession of the Demised Premises to Tenant on said Commencement
Date, then Landlord shall not be subject to any liability therefor; nor shall
such failure affect the validity of this Lease or the obligations of Tenant
hereunder, provided that Tenant shall not be obligated to pay Rent (except a sum
equal to the first Basic Monthly Rental Installment) until possession of the
Premises is rendered to Tenant.
BASIC ANNUAL RENT
PARAGRAPH 2
(A) Tenant agrees to pay as Basic Annual Rent for the Premises the initial
sum shown in Item 6 of the Basic Lease Provisions. Except for months when this
Lease is not in effect for the full calendar month (partial month), the Basic
Annual Rent shall be payable in U.S. currency in equal monthly installments,
hereinafter sometimes referred to as "Basic Monthly Rental Installments", in
advance without notice, deduction, demand, offset, or abatement. Basic Monthly
Rental Installments shall be in the initial sum shown in Item 7 of the Basic
Lease Provisions. Payment of Basic Annual Rent shall commence on the
Commencement Date (except that the first month's rent shall be due upon the
signing of this Lease), and continue on the first day of each calendar month
thereafter except that Basic Rent for any partial month during the term hereof
shall be prorated in the proportion that the number of days this lease is in
effect during such partial month bears to the number of days in that calendar
month, and shall be paid at the commencement of such partial month, and except
further that the Basic Monthly Rental Installment for the first full calendar
month of this Lease for which an installment of Basic Annual Rent is due will be
paid on execution hereof.
(B) In addition to the Basic Annual Rent stipulated herein, Tenant
covenants and agrees to pay Landlord without offset or deduction as additional
Rent, hereinafter "Additional Rent", all other sums and charges which are to be
paid by Tenant pursuant to the terms of this Lease. Except as otherwise provided
in this Lease, Additional Rent shall be due and payable on the first day of the
month following the date on which Tenant is given notice that Additional Rent is
due. Rent means Basic Annual Rent and Additional Rent.
6
ADDITIONAL RENT
PARAGRAPH 3
(A) For each calendar year during the term of this Lease, Tenant agrees to
pay as items of Additional Rent for the Premises, Tenant's "Percentage Share"
(being the percentage indicated in Item 3 of Basic Lease Provisions) of all
increases in "Project Operating Expenses" and "Project Property Taxes" (as
hereinafter defined) incurred by Landlord in the operation of the Building or
Project over the Base Project Operating Expenses and Base Project Property Taxes
as stipulated in Items 4 and 5 respectively in the Basic Lease Provisions.
(B) The items of Additional Rent contemplated under subparagraph 3(A)
shall be calculated in accordance with the following procedures:
(i) Each December during the term hereof or as soon thereafter as
practical, Landlord shall give Tenant written notice of
Landlord's estimate of any amounts payable under subparagraph
3(A) above for the ensuing calendar year. On or before the first
day of each month during the ensuing calendar year, Tenant shall
pay Landlord without further notice 1/12 (One-twelfth) of such
estimated amounts, provided that if such notice is not given in
December, Tenant shall continue to pay on the basis of the then
applicable rental until the month after such notice is given. If
at any time or times it appears to Landlord that the adjusted
amounts payable under subparagraph 3(A) for the current calendar
year will exceed its estimate, Landlord may, by notice to
Tenant, revise its estimate for such year. Subsequent payments
by Tenant for such year shall be based upon such revised
estimate.
(ii) Within ninety (90) days after the close of each calendar year or
as soon thereafter as is practical, Landlord shall deliver to
Tenant a statement of the annual adjustment of those Additional
Rent items made pursuant to subparagraph 3(A) for such calendar
year. If on the basis of such statement Tenant owes an amount
that is less than the estimated payments for such calendar year
previously made by Tenant, Landlord shall refund or credit such
excess to Tenant. If on the basis of such statement Tenant owes
an amount that is more than the estimated payment for such
calendar year previously made by Tenant, Tenant shall pay the
deficiency to Landlord within thirty (30) days after delivery of
the statement.
(iii) The Additional Rent due under the terms and conditions of this
Paragraph 3 shall survive termination of this Lease, shall be
payable by Tenant without any setoff or deduction, and shall be
computed by Landlord on a prorated basis for any period less
than a full calendar year.
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(iv) Anything to the contrary contained in this Paragraph 3
notwithstanding, if the average occupancy of the Building is less
than ninety-five (95%) percent during the Base Year hereinafter
defined, then Landlord shall make a determination ("Landlord's
Determination") of what the Project Operating Expenses for such
year would have been if during the entire year the average tenant
occupancy of the Building were ninety-five (95%) percent.
Landlord's Determination shall be binding and conclusive upon
Tenant and shall for all purposes of this Lease be deemed to be
the Project Operating Expenses for the Base Year. Landlord shall
notify Tenant of Landlord's Determination within ninety (90) days
following the last day of the Base Year. Thereafter, if for any
subsequent calendar year beginning after the Commencement Date
the average tenant occupancy of the Building is below ninety-five
(95%) percent, the Project Operating Expenses for any such year
shall be adjusted by Landlord to the amount that such Project
Operating Expenses would have been if the average tenant
occupancy during that year had been ninety-five (95%) percent.
The term Base Year means the twelve (12) month period during
which Base Project Operating expenses are calculated.
(C) Definitions:
(i) The term "Project Operating Expenses" as used herein shall
(except as noted below), include all costs of operation and
maintenance of the Project for each calendar year as determined
by generally accepted accounting principles consistently applied.
Project Operating Expenses shall, by way of illustration but not
limitation, include water and sewer charges, insurance premiums,
license, permit, and inspection fees, fuel, heat, light, power
(except for electricity charged directly to the Premises and
other rental space on the Project), steam, janitorial and
security services, labor, salaries for owners' on-site personnel,
air conditioning, landscaping maintenance and repair of the
Building and driveways, parking structures and surface parking
areas, ice and snow removal, supplies, materials, equipment,
tools, property management fees, office costs, and the cost
incurred in contesting the validity of Project Property Taxes.
Project Operating Expenses shall also include but not be limited
to the cost of any capital improvements made to the Building by
Landlord that reduce Project Operating Expenses or that are
required under any governmental law or regulation not previously
applicable to the Building or not in effect at the time it was
constructed. Such capital cost shall be amortized over such
reasonable periods as Landlord shall determine with a return on
capital at the then current prime interest rate of the largest
national bank in New York City or at such higher rate as may have
been paid by Landlord on the funds borrowed for the purpose of
purchasing such capital improvements. In no event shall Project
Operating Expenses ever be
8
less than Base Project Operating Expenses stipulated in Item 4 of
Basic Lease Provisions.
(ii) The term "Project Property Taxes" as used herein shall include
all real estate taxes or personal property taxes and other taxes,
charges and assessments, unforeseen as well as foreseen, which
are levied with respect to the Project and any improvements,
fixtures and equipment and other property of Landlord, real or
personal, located in the Building or on the Project and used in
connection with the operation of the Project for each calendar
year and shall include any tax, surcharge or assessment which
shall be levied in addition to or in lieu of real estate or
personal property taxes, other than taxes covered in Paragraph
11, and shall also include any rental, excise, sales,
transaction, privilege, or other tax or levy, however,
denominated, imposed upon or measured by the rental reserved
hereunder or on Landlord's business of leasing the Premises and
Project, excepting only net income taxes. In no event shall
Project Property Taxes ever be less than Base Project Property
taxes stipulated in Item 5 of Basic Lease Provisions.
(D) Unless Tenant takes written exception to any item in the statement
referred to in subparagraph 3(B)(ii) within thirty (30) days after the
furnishing of the statement, such statement shall be considered as final and
accepted by Tenant. Any amount due Landlord as shown on any such statement shall
be paid by Tenant within thirty (30) days after it is furnished to Tenant. If
Tenant shall dispute in writing any specific item, or items in the statement of
Project Operating Expenses and Project Property Taxes, and such dispute is not
resolved between Landlord and Tenant within sixty (60) days after the date the
statement was rendered, either party may, during the thirty (30) days next
following the expiration of the sixty (60) days, refer such disputed item or
items to any independent certified public accountant selected by Landlord, for a
determination. Pending the determination of any dispute with respect to the
statement submitted by Landlord, Tenant shall pay when due the sums shown as due
on such statement. If it shall be determined that any portion of such sums were
not properly chargeable to Tenant, then Landlord shall credit or refund the
appropriate sum to Tenant. The costs for the accountant's review and
determination will be borne by Landlord if it is determined that Landlord's
original calculation of both Project Property Taxes and Project Operating
Expenses was in error by more than five (5%) percent, otherwise such costs will
be borne by Tenant.
(E) As one of the items of Additional Rent, payable monthly, Tenant shall
also pay to Landlord the full cost of Tenant's consumption of electricity as
determined in accordance with Paragraph 9.
(F) The Basic Annual Rent plus Additional Rent are sometimes collectively
referred to as "Rent".
(G) Notwithstanding anything to the contrary in the definition of "Project
Operating Expenses", Project Operating Expenses shall not include the following:
9
(i) Costs incurred by Landlord with respect to goods and services
(including utilities sold and supplied to tenants and occupants
of the Building) to the extent that Landlord is entitled to
reimbursement for such costs;
(ii) Costs incurred by Landlord for the repair of damage to the
Building to the extent that Landlord is reimbursed by insurance
proceeds;
(iii) Costs, including permit, license and inspection costs, incurred
with respect to the installation of tenant improvements made
for new tenants in the Building or incurred in renovating or
otherwise improving, decorating, painting or redecorating
vacant space for tenants or other occupants of the Building;
(iv) Depreciation and amortization, except as provided herein and
except on materials, tools, supplies and vendor-type equipment
purchased by Landlord to enable Landlord to supply services
Landlord might otherwise contract for with a third party where
such depreciation and amortization would otherwise have been
included in the charge for such third party's services, all as
determined in accordance with generally accepted accounting
principles, consistently applied;
(v) Leasing commissions in connection with prospective tenants or
other occupants of the Building;
(vi) Costs incurred by Landlord for alterations which are considered
capital improvements and replacements under generally accepted
accounting principles, consistently applied except those which
reduce Project Operating Expenses or that are required under
any governmental law or regulation not previously applicable to
the Building or not in effect at the time it was constructed;
(vii) Costs of capital nature, including, without limitation, capital
improvements, and capital tools, all as determined in
accordance with generally accepted accounting principles,
consistently applied except those which reduce Project
Operating Expenses or that are required under any governmental
law or regulation not previously applicable to the Building or
not in effect at the time it was constructed;
(viii) Overhead and profit increment paid to Landlord or to
subsidiaries or affiliates of Landlord for services in the
Building to the extent the same exceeds the costs of such
services rendered by unaffiliated third parties on a
competitive basis except all direct billing invoices will
include 10% overhead and 10% profit;
(ix) Interest, points and fees on debt or amortization on any
mortgage or mortgages encumbering the Building or the land;
10
(x) All items and services for which Tenant or any other tenant in
the building reimburses Landlord or which Landlord provides
selectively to one or more tenants (other than Tenant) without
reimbursement;
(xi) Advertising and promotional expenditures; and
(xii) Electric power costs for which any tenant directly contracts
with the local public service company except for common area.
SECURITY DEPOSIT
PARAGRAPH 4
Tenant has paid or agrees to pay Landlord such sum(s) as are set forth in
Item 10 of the Basic Lease Provisions as security for the performance of the
terms hereof by Tenant. If Tenant defaults with respect to any provision of this
Lease, including but not limited to, the provisions relating to the payment of
Rent or the surrender of the Premises in accordance with the terms hereof upon
the termination of the Lease, Landlord may, but shall not be required to use,
apply or retain all or any part of the Letter of Credit for the payment of any
Rent or any other sum due from Tenant in default, or for the payment of any
other amount which Landlord may spend or become obligated to spend by reason of
Tenant's default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default including, without limitation,
costs and attorneys' fees incurred by Landlord. In the event of bankruptcy or
other debtor-creditor proceeding against Tenant, such Letter of Credit shall be
deemed to have been applied first to the payment of Rent and other charges due
Landlord for all periods prior to filing of such proceedings. In addition to the
$115,852.50 of Security Deposit set forth in Item 10 of the Basic Lease
Provisions, Tenant shall post a Letter of Credit in the form of Exhibit "F" in
the amount of $600,000.00. Beginning on the third year (twenty-fifth month) of
this Lease, and at the beginning of each successive year thereafter, Tenant
shall deliver to Landlord a revised Letter of Credit with the face amount of
each such Letter adjusted such that for the third year of this Lease the amount
shall be $533,000.00, for the fourth year the amount shall be $466,000.00, for
the fifth year the amount shall be $400,000.00, for the sixth year the amount
shall be $333,000.00, for the seventh year the amount shall be $266,000.00, for
the eighth year the amount shall be $200,000.00, for the ninth year the amount
shall be $133,000.00, and for the tenth year the amount shall be $67,000.00
(such amount shall remain in effect as Security Deposit for ninety (90) days
following the last day of the term of this Lease). The Irrevocable Letter of
Credit must be renewed sixty (60) days prior to its expiration date for each
year of this Lease, and Landlord given notice of such renewal at least sixty
(60) days prior to the expiration date of the then existing Letter of Credit.
The Letter of Credit is further security for the Tenant's performance of the
terms of this Lease.
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REPAIRS
PARAGRAPH S
(A) Subject to Paragraph 5(B), Landlord shall cause all necessary repairs
to be made to the exterior doors, windows, corridors and other common areas of
the Building and the Project and Landlord shall cause the Building and the
Project to be kept in a safe, clean and neat condition and shall use reasonable
efforts to keep all equipment used in common with other tenants (such as
elevators, plumbing, heating, air conditioning and similar equipment) in good
condition and repair. Except as provided in Paragraph 13 hereof, there shall be
no abatement of Rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business arising from the making of any repairs,
alterations or improvements in or to any portion of the Building or the Project
or in or to fixtures, appurtenances and equipment therein or thereon.
(B) Tenant agrees that all repairs to the Premises not required above to
be made by Landlord and all decorating, remodeling, alteration and painting
required by Tenant during the term of this Lease, if approved by Landlord, shall
be made by Landlord at the sole cost and expense of Tenant. Tenant will pay for
any repairs to the Premises, the Building or the Project made necessary by any
negligence or willful acts or omissions of Tenant or its assignees, subtenants,
employees or their respective agents or other persons permitted in the Building
or on the Project by Tenant, or any of them, and Tenant will maintain the
Premises, and, upon termination of this Lease, will leave the Premises in a
safe, clean, neat and sanitary condition. Tenant has the right to seek
competitive bids to ensure that Landlord's pricing for such repairs is
comparable to that which is charged by other area office parks of the same level
of quality as the Project.
(C) Landlord shall maintain and repair all HVAC equipment for Tenant,
except that with respect to any major repair (ex.: compressors, etc...), Tenant
will pay to Landlord as Additional Rent the cost of such major repair which
shall be payable in equal monthly installments over the remaining life of the
Lease.
IMPROVEMENTS AND ALTERATIONS
PARAGRAPH 6
(A) Landlord's sole construction obligation under this Lease is as set
forth in the Work Letter attached hereto as Exhibit "B-1" and incorporated
herein by reference.
(B) Landlord shall have the right at any time to change the arrangement
and/or location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets, or other public parts of the Building or Project,
and upon giving Tenant reasonable notice thereof, to change the name, number or
designation by which the Building or the Project is commonly known.
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(C) The alterations, additions or improvements to or of the Premises or
any part thereof referred to in this subparagraph (6)(C) do not include the
initial tenant improvements. Tenant shall not make or cause to be made any
alterations, additions or improvements to or of the Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's prior written consent (which consent shall not be unreasonably
withheld). Any such alterations, additions or improvements to the Premises
consented to by Landlord shall at Landlord's option be made by Landlord for
Tenant's account and Tenant shall pay Landlord for the costs thereof (including
reasonable charge for Landlord's overhead) within ten (10) days after receipt of
Landlord's statement. All such alterations, additions and improvements shall
(without compensation to Tenant) at Landlord's option become Landlord's property
(except movable furniture and trade fixtures) and at the end of the term hereof,
shall remain on the Premises unless Landlord elects by notice to Tenant to have
Tenant remove same, in which event Tenant shall promptly restore the Premises to
their condition prior to the installation of (i) such alterations, additions and
improvements, and (ii) equipment of any nature. Further, Landlord may elect by
notice to Tenant to have Tenant remove not only Tenant's alterations, additions
and improvements, but also any items of Tenant's equipment including but not
limited to movable furniture, trade fixtures, office equipment and any cafeteria
equipment. Any such equipment not removed from the Premises at the end of the
term hereof shall at the option of the Landlord become Landlord's property
without payment of any consideration therefor. The removal of any such equipment
and any alterations, additions and improvements which Landlord elects Tenant to
remove will be accomplished by Tenant prior to the expiration of the term of
this Lease and if not done, Tenant will be deemed a tenant at sufferance
pursuant to Paragraph 26. If Tenant does not perform such removal, Landlord may
remove, destroy, store or otherwise dispose of such alterations, additions,
improvements and equipment, whether or not Landlord takes title thereto. In
addition, Tenant will pay (i) all Landlord's costs of removing, disposing or
destroying any such alterations, additions, improvements and equipment whether
or not Landlord takes title thereto, that Tenant is supposed to remove, which
Tenant does not remove, and (ii) Landlord's cost to restore the Premises to
their condition prior to the installation of any alterations, additions,
improvements and equipment of any nature referred to in subdivision (i) of this
sentence. Such costs will include Landlord's fees and expenses in collecting
such costs and interest on such costs at the rate of fourteen (14%) percent per
annum. Tenant will pay to Landlord Landlord's costs of storage of any equipment
which Tenant is supposed to remove pursuant to this paragraph that Tenant does
not remove. Further, Landlord reserves and shall have right of access to the
Premises at any time within ninety (90) days prior to any projected termination
of this Lease to inspect the Premises to determine alterations, additions,
improvements and equipment Landlord desires Tenant to remove. This right of
access is in addition to Landlord's right of access set forth in Paragraph 16
hereof. Notwithstanding the above, Landlord and Tenant hereby agree that nine
(9) months prior to the expiration of the term of this Lease, Tenant will have
the right to either (i) leave all of the improvements and remove only its
furniture and trade fixtures, or (ii) remove any improvements (example: hood,
benches, coolers, etc...) in which event Tenant must remove all improvements and
restore the Premises to a shell condition at its sole cost and expense, prior to
the expiration of the term of this Lease. (Shell condition shall mean... demo
walls, floors, ceilings, cap utilities, remove all wiring back to distribution
panels, remove all data and telephone wiring completely, patch all holes in
walls, floors and roof, remove flex
13
ductwork to VAV boxes and leave the Premises in a safe condition to the then
current codes.
LIENS
PARAGRAPH 7
Tenant shall keep the Premises `free from any liens arising out of any work
performed, materials furnished, or obligations incurred by or for Tenant. In the
event that Tenant shall not, within ten (10) days following the imposition of
any such lien, cause the same to be released of record by payment or posting of
a proper bond, Landlord shall have, in addition to all other remedies provided
herein or by law, the right but not the obligation, to cause the same to be
released by such means as it shall deem proper, including payment of or defense
against the claim giving rise to such lien. All sums paid by Landlord and all
expenses incurred by it in connection therewith, shall create automatically an
obligation of Tenant to pay an equivalent amount as Additional Rent, which
Additional Rent shall be payable by Tenant on Landlord's demand with interest at
the maximum rate per annum permitted by law until paid. For purposes of this
Paragraph 7, "liens" shall include, but not be limited to, lien claims filed
under the "Construction Lien Law".
Notwithstanding any other provision of this Lease to the contrary, Tenant
shall have the right to finance the purchase of its personal property, fixtures
and equipment by lease or otherwise and the right to enter into security
agreements with respect thereto and any such lien created thereby shall be
superior to any rights of Landlord, if any, in said personal property, fixtures
or equipment created hereunder this Lease; provided, however, that in no event,
shall any such lien encumber the Premises, the Building or the Project.
USE OF PREMISES
PARAGRAPH 8
Tenant shall use the Premises only as set forth in Item 13 of the Basic
Lease Provisions and shall not use or permit the Premises to be used for any
other purpose without the prior written consent of Landlord. Tenant shall comply
with all laws and covenants and restrictions of record affecting use of the
Premises, and shall not use or occupy the Premises in violation of law or of the
certificate of occupancy issued for the Building, and shall immediately
discontinue any use of the Premises which is declared by any governmental
authority having jurisdiction to be a violation of law or of said certificate of
occupancy. Tenant shall comply with any direction of any governmental authority
having jurisdiction which shall, by reason of the nature of Tenant's use or
occupancy of the Premises impose any duty upon Tenant or Landlord with respect
to the Premises or with respect to the use or occupancy thereof. Tenant shall
not do or permit to be done anything which will invalidate or increase the cost
of any fire, extended coverage or any other insurance policy covering the
Building, the Project and/or property located therein and shall comply with all
rules, orders, regulations and requirements of the appropriate fire
14
rating bureau or any other organization performing a similar function. Tenant
shall upon demand reimburse Landlord for the full amount of any additional
premium charged for such policy by reason of Tenant's failure to comply with the
provisions of this paragraph. Such reimbursement shall not be Landlord's
exclusive remedy. Tenant shall not in any way obstruct or interfere with the
rights of other tenants or occupants of the Building or the Project or injure,
or use or allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purpose, nor shall Tenant cause, maintain, or permit any nuisance
in, on, or about the Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises.
Upon the expiration, or early termination of the Term of this Lease or the
permanent assignment of this Lease, or subletting of the Premises, or cessation
or transferring of Tenant's operations at the Premises, or upon any action or
non-action of Landlord including a sale of the Building in which the Premises
are located, Tenant, if its operations are subject to the Environmental Clean-up
Laws hereinafter defined, shall comply, at Tenant's own expense, except as
hereinafter stated, and with diligence, with the Industrial Site Recovery Act,
1993 N.J. Law's Chapter 139, the regulations promulgated thereunder and any
successor legislation and regulations(collectively "Environmental Clean-up
Laws"). Tenant, if its operations are subject to the Environmental Clean-up Laws
shall, at Tenant's own expense, except as hereinafter stated, make prompt
submissions to, provide all information to and comply with all requirements of
the Industrial Site Evaluation Element ("ISEE") or its successor of the New
Jersey Department of Environmental Protection or its successor ("NJDEP") arising
out of the expiration, termination, assignment, subletting or transferring of
Tenant's operation at the Premises or arising out of any action or non-action of
the Landlord including the sale of the Building in which the Premises are
located. If Landlord's actions or non-actions including a sale of the Building
in which the Premises are located necessitate compliance with Environmental
Clean-up Laws, Landlord, at its expense, will make the submissions to NJDEP or
any of its elements in order to obtain a statement of non-applicability or
negative declaration, but Tenant whether or not it is subject to Environmental
Clean-up Laws, will cooperate with Landlord to aid in the making of Landlord's
submission by providing information and signing such documents as are necessary
for Landlord to make its submission. Clean-up expenses or the making up of any
clean-up plan or remedial action work plan, or sampling plan or the taking of
any corrective action to comply with Environmental Clean-up Laws and expenses
therefore, will be borne by the party whose actions or failure to act
necessitated the clean-up.
Each party shall, within a reasonable time and receipt of same, furnish to
the other party true and complete copies of all documents, submissions,
correspondence and oral or written reports, directives, correspondence and oral
or written communications by ISEE to the recipient party. Each party shall also
promptly furnish to the other party true and complete copies of all sampling and
test results and reports obtained and prepared from samples and tests taken at
and around the Premises that is obtained by the party first obtaining the
results and reports.
Tenant shall immediately and diligently cause any and all Hazardous
Materials it, its agents, employees, invitees or licensees released in, onto or
under or dispose from the Premises during the Term of the Lease to be removed in
compliance with all applicable
15
laws, rules, ordinances and regulations and all conditions resulting therefrom
to be remediated in compliance with all applicable laws, rules, ordinances and
regulations and the Premises restored to their condition without said Hazardous
Materials as quickly as possible.
Tenant shall indemnify, defend and save harmless Landlord from all fines,
suits, procedures, claims and actions of any kind arising out of or in any way
connected with any release or discharge of Hazardous Materials at the Premises
which occur during the term of the Lease as a result of the acts of Tenant, its
invitees or licensees; and from all fines, suits, procedures, claims and actions
of any kind arising out of Tenant's failure to provide all information to NJDEP
or the Landlord as appropriate to make all submissions other than those Landlord
is required to make as provided herein, and take all actions required by the
NJDEP or any of its divisions.
Landlord hereby agrees to defend, indemnify and hold Tenant harmless from
and against any and all claims, lawsuits,, liabilities, losses, damages and
expenses (including, but not limited to, reasonable attorneys' fees arising by
reason of any of the aforesaid or any action against the Landlord under this
indemnity) arising directly or indirectly from, out of or by reason of (i) any
spills or discharges of toxic or hazardous waste or substances at the Premises
or Project which occur prior to or during the term of this Lease caused by
Landlord, its employees, agents or invitees; or (ii) any pre-existing conditions
including underground tanks, which are the subject of federal, state or local
environmental laws.
Tenant's obligations and liabilities under this Paragraph shall continue so
long as Landlord remains responsible for any releases or discharges of Hazardous
Materials at the Premises which occur as a result of the acts of Tenant, its
invitees or licensees. Tenant's failure to abide by the terms of this Paragraph
shall be restrainable by injunction.
UTILITIES AND SERVICES
PARAGRAPH 9
(A) Provided that Tenant is not in default hereunder, Landlord agrees to
furnish or cause to be furnished to the Premises the following utilities and
services, subject to the conditions and standards set forth below:
(i) Tenant shall have twenty-four (24) hours per day, seven (7) days
per week access to the Premises.
(ii) Intentionally deleted.
(iii) Landlord shall furnish to the Premises at all times, subject to
interruptions beyond Landlord's control and subject to
subparagraph 3(E), electric current in accordance with the
Building Standard office lighting and receptacle. At no time
shall Tenant's use of electric current exceed the capacity of
the feeders to the Building or the risers
16
or wiring installation. Tenant shall not install or use or
permit the installation or use of any mainframe computer
equipment in the Premises without the prior written consent of
Landlord.
(iv) Landlord shall furnish the building with water for (x) drinking
and lavatory purposes only at no additional charge; and (y) for
laboratory purposes at a reasonable charge.
(v) Landlord shall provide janitorial services to the Premises,
comparable to such services provided in other first class
office buildings in the vicinity, provided that the said other
office buildings are used exclusively as offices, and provided
further that the Premises are kept in good order by Tenant.
Tenant shall pay to Landlord the cost of removal of any of
Tenant's refuse and rubbish to the extent that the same exceeds
the refuse and rubbish usually attendant upon the use of the
Premises as offices.
(vi) Landlord shall replace, as necessary, the fluorescent tubes in
the standard lighting fixtures installed by Landlord. Tenant
agrees to reimburse Landlord upon demand for the cost of such
fluorescent tubes and ballast and the labor and overhead for
their installation. Initial installation of fixtures will be
warranteed for one year for lamps and ballast.
(B) Landlord may impose a reasonable charge for any utilities and
services, including without limitation, electric current (except for electricity
paid under subparagraph (E) Paragraph 3 and water), provided by Landlord by
reason of any use of the Premises at any time. Separate meters for such
utilities and services are installed in the Premises, and upon demand, Tenant
shall immediately pay Landlord for all charges with respect to consumption of
such utilities or services so metered or provided (it being understood that the
cost for water for drinking and lavatory purposes is included in the Rent).
(i) Intentionally Deleted.
(ii) Intentionally Deleted.
(iii) Landlord shall not be liable in any way to Tenant for any
failure or defect in the supply or character of electric energy
furnished to the Premises by reason of any requirement, act or
omission of the public utility serving the Building with
electricity or for any other reason not attributable to
Landlord.
(iv) Tenant's use of electric energy in the Premises shall not at
any time exceed the capacity of any of the electrical
conductors and equipment serving the Premises. In order to
insure that such capacity is not exceeded and to avert possible
adverse effect upon the Building's
17
electric service, Tenant shall not, without Landlord's prior
written consent in each instance (which shall not be
unreasonably withheld), connect any additional fixtures,
appliances or equipment to the Building's electric distribution
system or make any alteration or addition to the electric
system of the Premises existing on the Commencement Date.
Should Landlord grant such consent, all additional risers or
other equipment required therefor shall be provided by Landlord
and the cost thereof shall be paid by Tenant upon Landlord's
demand.
(v) If the public utility rate schedule for the supply of electric
current to the Building shall be increased during the term of
this Lease, the Additional Rent payable pursuant to Paragraph 3
hereof shall be equitably adjusted to reflect the resulting
increase in Landlord's cost of furnishing electric service to
the Premises. It is the intention hereof that Landlord only
recapture the charges payable by Tenant under Paragraph 3 and
under no circumstances shall Landlord earn any profit thereof.
(C) Tenant agrees to cooperate fully at all times with Landlord and to
abide by all reasonable regulations and requirements which Landlord may
prescribe for the use of the above utilities and services. Any failure to pay
any costs as described above shall constitute a breach of the obligation to pay
Rent under this Lease and shall entitle Landlord to rights herein granted for
such breach.
(D) Landlord shall not be liable for, and Tenant shall not be entitled to,
any abatement or reduction of Rent by reason of Landlord's failure to furnish
any of the foregoing services, nor shall any such failure, stoppage or
interruption of any such service be construed either as an eviction of Tenant,
or relieve Tenant from the obligation to perform any covenant or agreement.
However, in the event of any failure, stoppage or interruption thereof, Landlord
shall use reasonable diligence to have service resumed promptly.
(E) It is understood and agreed that Landlord has the sole right to choose
the provider or providers of all utilities and services described or referred to
in this Paragraph 9.
(F) Notwithstanding anything hereinafter to the contrary, Landlord
reserves the right from time to time to make reasonable modifications to the
above provisions for utilities and services.
18
RULES AND REGULATIONS
PARAGRAPH 10
Tenant agrees to abide by all rules and regulations of the Buildings and
Project ("Rules and Regulations") imposed by the Landlord as set forth in
Exhibit "D" attached hereto, as the same may be changed from time to time upon
reasonable notice to Tenant. These Rules and Regulations are imposed for the
cleanliness, good appearance, proper maintenance, good order and reasonable use
of the Premises and the Project, as may be necessary for the enjoyment of the
Project by all tenants and their employees and invitees. Landlord shall not be
liable for the failure of any tenant, its agents or employees to conform to the
Rules and Regulations.
TAXES AND TENANT'S PROPERTY
PARAGRAPH 11
(A) Tenant shall be liable for and shall pay not later than ten (10) days
before delinquency, all taxes, levies and assessments levied against any
personal property or trade fixtures placed by Tenant in or about the Premises.
If any such taxes, levies and assessments on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or if the assessed
value of the Building or the Project is increased by the inclusion therein of a
value placed upon such personal property or trade fixtures of Tenant and if
Landlord pays the taxes, levies and assessments, Tenant shall, upon demand,
repay to Landlord the taxes, levies and assessments so levied against Landlord,
or the proportion of such taxes, levies and assessments resulting from such
increase in the assessment.
(B) If Tenant improvements in the Premises, whether installed and/or paid
for by Landlord or Tenant and whether or not affixed to the real property so as
to become as part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which Tenant improvements conforming to
"Building Standard" (as referred to in Exhibit "B-2") are assessed, then the
real property taxes and assessments levied against Landlord or the Project by
reason of such excess, assessed valuation shall be deemed to be taxes levied
against personal property of Tenant and shall be governed by the provisions of
subparagraph 11(A). If the records of the Tax Assessor are available and
sufficiently detailed to serve as a basis for determining whether said Tenant
improvements are assessed at a higher valuation than Building Standard, such
records shall be binding on both Landlord and Tenant; otherwise the actual cost
of construction shall be the basis for such determination.
SUBSTITUTED PREMISES
PARAGRAPH 12
Intentionally deleted.
19
FIRE OR CASUALTY
PARAGRAPH 13
In the event that the Project (regardless of whether the Premises or access
thereto is affected) is so damaged or destroyed to the extent of more than one-
third of its replacement cost, or to any substantial extent by a casualty not
covered by Landlord's insurance, or during the last two (2) years of this Lease,
Landlord, upon giving thirty (30) days' notice to Tenant, may elect to terminate
this Lease. If the damage or destruction is other than as provided above, then
Landlord shall commence within ninety (90) days after such damage or destruction
to rebuild, repair or restore the Premises and access thereto to substantially
the same condition as when the same were delivered to Tenant, excluding the
improvements owned by Tenant, and the Lease shall continue in full force and
effect.
Landlord shall in no event be obligated to make any repairs or replacements
of any items owned by Tenant. If the Lease is not terminated but the Premises
are rendered totally untenantable, Rent shall xxxxx during the period of such
untenantability. Tenant acknowledges (i) that Landlord shall not obtain
insurance of any kind on Tenant's improvements and betterment to the Premises
owned by Tenant or on Tenant's furniture, fixtures, equipment and other personal
property, (ii) that it is Tenant's obligation to obtain such insurance at
Tenant's sole cost and expense, and (iii) that Landlord not be obligated to
repair any damage thereto or replace the same.
EMINENT DOMAIN
PARAGRAPH 14
In case the whole of the Premises, or such part thereof as shall
substantially interfere with Tenant's use and occupancy thereof, shall be taken
by any lawful power or authority by exercise of the power of eminent domain,
Tenant or Landlord may terminate this Lease effective as of the date possession
is required to be surrendered to said authority. In the event of any taking (in
whole or part) of the Project whether or not the Premises or access thereto are
affected thereby, Landlord shall have the right to terminate this Lease. Except
as provided herein, Tenant shall not, because of any taking, assert any claim
against Landlord or the taking authority for any compensation because of such
taking, and Landlord shall be entitled to receive the entire amount of any award
without deduction for any estate or interest of Tenant. In the event the amount
of property or the type of estate taken shall not substantially interfere with
Tenant's use of the Premises, and Landlord does not terminate this Lease,
Landlord shall proceed to restore the Premises (to the extent permitted by the
taking) to substantially their condition prior to such partial taking, and a
proportionate allowance shall be made to Tenant for Rent corresponding to the
time during which, and to the part of the Premises of which, Tenant shall be so
deprived on account of such taking and restoration. Provided same shall not
diminish Landlord's award in any way, nothing contained in this Paragraph 14
shall prevent Tenant from seeking any award against the taking authority for the
taking of personal property and fixtures owned by Tenant or for relocation
expenses recoverable from the taking authority. In no event shall Landlord be
20
required to expend more for restoration than received from the taking authority
for such taking. For the purposes of this paragraph, "taking" shall also include
any conveyance in lieu of condemnation.
ASSIGNMENT AND SUBLETTING
PARAGRAPH 15
(A) Tenant shall not voluntarily or involuntarily assign, sublet,
mortgage, or otherwise encumber all or any portion of its interest in this Lease
or in the Premises without obtaining the prior written consent of Landlord
(which consent shall not be unreasonably withheld) and any such attempted
subletting, mortgage or other encumbrance without such consent shall be null and
void and of no effect. Without limiting the instances in which the Landlord will
refuse to give its consent, Landlord will withhold its consent where the Rent
per month of the proposed sublease or assignment is (i) less than ninety (90%)
of the Rent per month in effect for the remainder of the term of this Lease, or
(ii) where the proposed sublessee is either another tenant of Landlord or a
bonafide prospective tenant of Landlord.
(B) No assignment, subletting, mortgage or other encumbrance of Tenant's
interest in this Lease shall relieve Tenant of its obligation to pay the Rent
and to perform all of the other obligations to be performed by Tenant hereunder.
The acceptance of Rent by Landlord from any other person shall not be deemed to
be a waiver by Landlord of any provision of this Lease or be a consent to any
subletting, assignment, mortgage or other encumbrance. Consent to one sublease,
assignment, mortgage or other encumbrance shall not be deemed to constitute
consent to any subsequent attempted subletting, assignment, mortgage or other
encumbrance.
(C) If Tenant desires at any time to assign this Lease or to sublet the
Premises or any portion thereof, Tenant shall first notify Landlord of Tenant's
desire to do so and shall submit in writing to Landlord no less than sixty (60)
days prior to such assignment or subletting (i) the name of the proposed
subtenant or assignee; (ii) the premises; (iii) the term and provisions of the
proposed sublease or assignment and a copy of the proposed sublease or
assignment; and (iv) such financial information as Landlord may reasonably
request concerning the proposed subtenant or assignee.
(D) At any time within thirty (30) days after Landlord's receipt of the
information specified in subparagraph (C) above, Landlord may by written notice
to Tenant, elect (i) to take from Tenant a sublease of the Premises or the
portion thereof proposed to be subleased by Tenant, or to take an assignment of
Tenant's leasehold estate hereunder, or such part thereof as shall be specified
in said notice, upon the same terms as those offered to the proposed subtenant
or assignee, as the case may be; (ii) to give Tenant written consent to the
proposed assignment or sublease, provided that the Rent payable monthly by the
Tenant to the Landlord under the terms of this Lease shall be increased by a sum
equal to one-half (1/2) of all rental and other considerations received by
Tenant from its subtenant or assignee in excess of the Rent payable by Tenant
under the terms of this Lease (less the cost of brokerage commissions and/or
reasonable legal fees); or (iii) to terminate
21
this Lease as to the portion (including all) of the Premises proposed to be
subleased or assigned with a proportionate abatement in the Rent payable
hereunder. If Landlord does not exercise any option set forth in this
subparagraph (D) within said thirty (30) day period, Landlord shall be deemed to
have refused to consent to the proposed assignment or sublease and this Lease
shall remain in full force and effect.
(E) Except as provided in (i) immediately below, if Tenant is a
corporation, an unincorporated association or partnership, the transfer,
assignment or hypothecation of any stock or interest in such corporation,
association or partnership, in the aggregate in excess of forty-nine (49%)
percent, shall be deemed an assignment within the meaning and provisions of this
Paragraph.
(i) Without Landlord being able to terminate pursuant to Xxxxxxxxx
00 (X), Xxxxxx, if it is not then in material default of this
Lease may, without Landlord's consent but with notice to
Landlord with such information as Landlord may reasonably
request, sublet all or part of the Premises or assign this
Lease to any parent, affiliate or wholly-owned subsidiary of
Tenant; or assign this Lease to a corporation, or a subsidiary
of a corporation which succeeds to all or substantially all of
the assets and business of Tenant or into which Tenant is
merged; provided, however, that Tenant shall at all times be
and remain primarily and jointly liable under this Lease
despite any such subletting or assignment and provided further
that any surviving entity in a merger or any assignee or
subtenant has a net worth at least as much as Tenant had on the
Commencement Date and such successor, if an assignee or
survivor in a merger becomes liable on this Lease.
(F) Tenant shall reimburse Landlord for Landlord's reasonable costs and
attorneys' fees incurred in conjunction with the processing and documentation of
any such requested assignment, subletting, transfer, change in ownership or
hypothecation of this Lease or Tenant's interest in and to the Premises.
LANDLORD'S ACCESS TO PREMISES
PARAGRAPH 16
Landlord reserves and shall at any and all reasonable times have the right
to enter the Premises to inspect the same, to supply janitorial service and any
other service to be provided by Landlord to Tenant hereunder, to show said
Premises to prospective purchasers or tenants, to alter or repair the Premises
or any portion of the Building or Project, all without being deemed guilty of an
eviction of Tenant and without abatement of Rent, and may for that purpose erect
scaffolding and other necessary structures where reasonable required by the
character of the work to be performed, provided that the business of Tenant
shall be interfered with as little as is reasonably practicable. Tenant hereby
waives any claim for damages or any injury or inconvenience to or interference
with Tenant's business, any loss of occupancy or quiet enjoyment of the
Premises, and any other loss occasioned thereby. For each of the aforesaid
purposes, Landlord shall at all times have and retain a
22
key with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults and safes, and Landlord shall have the right to use
any and all means which Landlord may deem proper to open said doors in an
emergency in order to obtain entry to the Premises, and any entry to the
Premises obtained by Landlord by any of said means shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into, or
a detainer of the Premises, or any eviction of Tenant from the Premises or any
portion thereof. No provision of this Lease shall be construed as obligating
Landlord to perform any repairs, alterations or decoration except as otherwise
expressly agreed to be performed by Landlord.
SUBORDINATION, ATTORNMENT, ESTOPPEL CERTIFICATES
PARAGRAPH 17
(A) This Lease is junior, subject, and subordinate to all ground leases,
mortgages, deeds of trust, and other security instruments of any kind now
covering the Project or any portion thereof. Landlord reserves the right to
place liens or encumbrances on the Project or any part thereof or interest
therein superior in lien and effect to this Lease. This Lease, at the option of
Landlord, shall be subject and subordinate to any and all such liens or
encumbrances now or hereafter imposed by Landlord without the necessity of the
execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination. Notwithstanding the foregoing, Tenant covenants
and agrees to execute and deliver upon request such further instruments
evidencing such subordination of this Lease as may be requested by Landlord.
Landlord will request a Subordination and Non-Disturbance Agreement from its
current mortgagee (and any future mortgagee if requested) of the Project.
(B) Tenant shall at any time and from time to time upon not less than ten
(10) days' prior notice by Landlord, execute, acknowledge and deliver to
Landlord a statement in writing and in form and substance. satisfactory to
Landlord certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), and the dates to which the Basic
Annual Rent, Additional Rent and other charges have been paid in advance, if
any, and stating whether or not to the best knowledge of Tenant, Landlord is in
default in the performance of any covenant, agreement or condition contained in
this Lease and, if so, specifying each such default of which Tenant may have
knowledge. Any such statement delivered pursuant to this Paragraph may be relied
upon by any prospective purchaser of the fee of the Building or the Project or
any mortgagee, ground lessor or other encumbrancer thereof or any assignee of
any such person.
(C) Should any mortgage on the Property of which the Premises are a part
be foreclosed, the Purchaser upon foreclosure of the lien of the mortgage shall
have the right following foreclosure to preserve this Lease and the rights of
the Tenant or any other person or entity having an interest in the Premises, and
the Tenant shall attorn to such Purchaser at foreclosure and pay and perform its
obligations under this Lease for the benefit of such Purchaser.
23
SALE BY LANDLORD
PARAGRAPH 18
In the event of a sale or conveyance by Landlord of the Project or any part
thereof, the same shall operate to release Landlord from any and all liability
under this Lease after the date of such conveyance of title. If any security
deposit has been made by Tenant, Landlord shall transfer such security deposit
to the purchaser, and thereupon Landlord shall be discharged from any further
liability in reference thereto.
INDEMNIFICATION OF LANDLORD AND INSURANCE
PARAGRAPH 19
(A) Except for negligent acts or omissions of Landlord, its agents,
servants, employees or invitees, Tenant shall indemnify, hold Landlord harmless
from and defend Landlord against any and all claims, loss, costs, damage,
expense or liability, including without limitation reasonable attorneys' fees,
for any injury or damages to any person or property whatsoever when such injury
has been caused in part or in whole by any act, neglect, fault, or Omission of
Tenant, its agents, servants, employees or invitees. This indemnity shall not
require any payment by Landlord as condition precedent to recovery. In addition,
if any person not a party to this Lease shall institute any other type of action
against Tenant in which Landlord shall be made a party defendant, Tenant shall
indemnify, hold Landlord harmless from and defend Landlord from all liabilities
and costs by reason thereof.
(B) Tenant hereby agrees to maintain in full force and effect at all times
during the term of this Lease, at its own expense, for the protection of Tenant
and Landlord as their interests may appear, policies of insurance issued by a
responsible carrier or carriers acceptable to Landlord licensed in New Jersey
and also having a policyholder's rating of not less than A- in the most current
edition of Best's Insurance Reports, which afford the following coverage:
(i) Worker's Compensation -- Statutory
Employer's Liability -- Not less than $250,000
(ii) Comprehensive General -- Not less than $3,000,000
Liability Insurance Combined Single Limit for both
including Blanket bodily injury and property
Contractual Liability damage
Broad Form Property Damage,
Personal Injury, Completed
Operations, Products Liability,
Fire Damage
Landlord and its managing agent shall be named as an additional
insured on all policies listed under (ii) above, and (iv) below.
24
(iii) All Risk Property Coverage in an amount sufficient to cover the
full cost of replacement of all improvements and betterment to
the Premises owned by Tenant and all of Tenant's fixtures and
other personal property.
(iv) Business Interruption Insurance (which includes Rent Insurance)
in an amount equal to the Basic Annual Rent and Additional Rent
for a period of at least twelve (12) months commencing with the
date of loss.
(C) Tenant shall deliver to Landlord at least thirty (30) days prior to
the time such insurance is first required to be carried by Tenant and thereafter
at least thirty (30) days prior to expiration of each such policy, certificates
of insurance evidencing the above coverage with limits not less than those
specified above. Such policy or certificate, with the exception of Worker's
Compensation, shall expressly provide that the interest of Landlord therein
shall not be affected by any breach by Tenant of any provision of any such
policy. Further, all certificates shall expressly provide that no less than
thirty (30) days prior written notice shall be given Landlord in the event of
material alterations to or cancellation of the coverage evidenced by such
certificates.
(D) Upon demand, Tenant shall provide Landlord, at Tenant's expense, with
such increased amount of existing insurance, and such other insurance in such
limits as Landlord may reasonably require and such other hazard insurance as the
nature and condition of the Premises may require in the sole judgement of
Landlord, to afford Landlord adequate protection for said risks. Such increased
insurance shall be comparable with that which is required by other landlords of
comparable buildings in the area.
(E) If on account of the failure of Tenant to comply with the provisions
of this Xxxxxxxxx 00, Xxxxxxxx is adjudged a coinsurer by its insurance carrier,
then any loss or damage Landlord shall sustain by reason thereof shall be borne
by Tenant and shall be immediately paid by Tenant upon receipt of a xxxx
therefore and evidence of such loss.
(F) Landlord makes no representation that the limits of liability
specified to be carried by Tenant under the terms of this Lease are adequate to
protect Tenant against Tenant's undertaking under this Paragraph 19. In the
event Tenant believes that any such insurance coverage called for under this
Lease is insufficient, Tenant shall provide, at its own expense, such additional
insurance as it deems adequate.
(G) Each policy evidencing the insurance to be carried by Tenant under
this Lease shall contain a clause that such policy and the coverage endorsed
thereby shall be primary with respect to any policies carried by Landlord, and
that any coverage carried by Landlord shall be excess insurance.
(H) Any insurance required of Tenant under this Lease may be furnished by
Tenant under a blanket policy carried by it. Such blanket policy shall contain
an endorsement that names Landlord as an additional insured, references the
Premises, and guarantees a minimum limit available for the Premises equal to the
insurance amounts
25
required in this Lease.
(I) In the event Tenant fails to procure, maintain, and/or pay for the
insurance required by this Lease, at the times and for the durations specified
in this Lease, Landlord shall have the right, but not the obligation, at any
time and from time to time, and without notice, to procure such insurance and/or
pay the premiums for such insurance, in which event Tenant shall repay Landlord,
immediately upon demand by Landlord, as Additional Rent, all sums so paid by
Landlord together with interest thereon and any costs or expenses incurred by
Landlord in connection therewith, without prejudice to any other rights and
remedies of the Landlord under this Lease.
WAIVER OF SUBROGATION
PARAGRAPH 20
Tenant and Landlord each agree that the respective insurance carried by it
against loss or damage by fire or other casualty shall contain a clause whereby
the insurer waives its right of subrogation against the other party.
Pursuant to the foregoing, Landlord and Tenant hereby waive all claims for
recovery from the other party for any loss or damage to any of its property
insured under valid and collectible insurance policies to the extent of any
recovery collectible under such insurance. The foregoing waiver shall be in
force only if both Tenant's and Landlord's insurance policies contain a clause
providing that such waiver shall not invalidate the insurance.
NO WAIVER
PARAGRAPH 21
No waiver by Landlord of any provision of this Lease or of any breach by
Tenant hereunder shall be deemed to be a waiver of any other provision hereof,
or for any subsequent breach by Tenant of the same or any other provisions.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act of Tenant. Failure of
Landlord to insist upon strict performance of any provision of this Lease shall
not be deemed to be a waiver of such provision. No act or omission by Landlord
or Landlord's agents during the term of this Lease shall be deemed an acceptance
of a surrender of the Premises, unless confirmed by Landlord in writing. The
delivery of the keys to an employee or agent of Landlord shall not operate as a
termination of the Lease or a surrender of the Premises. The acceptance of any
Rent by Landlord following a breach of this Lease by Tenant shall not constitute
a waiver of any of Landlord's rights unless such waiver is expressly stated in
writing and signed by Landlord.
26
DEFAULT
PARAGRAPH 22
(A) The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay the Rent or to make any other
payment required to be made by Tenant hereunder within five (5)
days of date due;
(ii) The abandonment or vacation of the Premises by Tenant;
(iii) Any failure by Tenant to observe and perform any of its
obligations under this Lease, not referred to in (i) above,
where such failure continues for fifteen (15) days after
Landlord has given Tenant written notice, provided, however,
that if the nature of Tenant's default is such that more than
fifteen (15) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant has been
pursuing such cure with reasonable diligence, within the
fifteen (15) day period and thereafter diligently completes the
cure; where such failure continues for fifteen (15) days after
Landlord has given Tenant written notice or such other notice
as may be required by law;
(iv) Tenant makes, or has made, or furnishes, or has furnished, any
warranty, representation or statement to Landlord in connection
with this Lease, or any other agreement to which Tenant and
Landlord are parties, which is or was false or misleading in
any material respect when made or furnished;
(v) Any substantial portion of the assets of Tenant is transferred
unless such transfer is incurred in the ordinary course of
Tenant's business in good faith for fair equivalent
consideration, and with Landlord's consent, and except for a
transfer of assets subject to Paragraph 15 E (i);
(vi) Tenant becomes insolvent as defined in the Federal Bankruptcy
Code, admits in writing its insolvency or its present or
prospective inability to pay its debts as they become due, is
unable to or does not pay all or any material portion (in
number or dollar amount) of its debts as they become due,
permits or suffers a judgement to exist against it which
affects Tenant's ability to conduct its business in the
ordinary course (unless enforcement thereof is stayed pending
appeal), makes or proposes an assignment for .the benefit of
creditors or any class thereof for purposes of effecting a
moratorium upon or extension or composition, or commences or
proposes to commence any bankruptcy,
27
reorganization or insolvency proceeding, or other proceedings
under any federal, state or other law for the relief of
debtors;
(vii) Tenant fails to obtain the dismissal, within thirty (30) days
after the commencement thereof, of any bankruptcy,
reorganization or insolvency proceeding, or other proceeding
under any law for the relief of debtors, instituted against it
by one or more third parties, or fails actively to oppose any
such proceedings, or, in any such proceeding, defaults or files
an answer admitting the material allegations upon which the
proceeding was based or alleges its willingness to have an
order for relief entered or its desire to seek liquidation,
reorganization or adjustment of any of its debts;
(viii) Any receiver, trustee, or custodian is appointed to take
possession of all or any substantial portion of the assets of
Tenant, or any committee of Tenant, or any committee of
Tenant's creditors, or any class thereof is formed for the
purpose of monitoring or investigating the financial affairs of
Tenant or enforcing such creditors' rights.
(B) In the event of any such material default and breach of this Lease by
Tenant, then in addition to any other remedies available to Landlord at law or
in equity, Landlord shall have the option to immediately terminate this Lease
and all rights of Tenant hereunder by giving written notice of such intention to
terminate. In the event that Landlord shall elect to so terminate the Lease,
then Landlord may recover from Tenant:
(i) any unpaid Rent which shall have accrued at the time of such
termination; plus
(ii) the entire amount of unpaid Rent for the balance of the term
which amount shall, at Landlord's option, be immediately due
and payable; plus
(iii) any other amount necessary to compensate Landlord for
Landlord's loss or damage caused directly or indirectly by
Tenant's failure to perform its obligations under this Lease
including, but not limited to, reasonable attorneys' fees and
costs; plus
(iv) at Landlord's election, such other amounts in addition to, or
in lieu of the foregoing, as may be permitted from time to time
by applicable law.
(C) In the event of any such material default and breach of this Lease by
Tenant, Landlord shall also have the right, with or without terminating this
Lease, to re-enter and to take possession of the Premises and to remove all
persons and property from the Premises. Landlord is hereby granted a lien, in
addition to any statutory lien or right to distrain that may exist, on all
personal property of Tenant in or upon the Premises to assure payment of the
Rent and performance of the covenants and conditions of this Lease.
28
Landlord shall have the right, as agent of Tenant, to take possession of all
personal property of Tenant found in or about the Premises including without
limitation furniture and fixtures of Tenant and, to sell the same at public or
private sale and to apply the proceeds thereof to the payment of any monies due
or becoming under this Lease, or to remove all such effects and store same in a
public warehouse or elsewhere at the cost of and for the account of Tenant, or
any other owner or occupant, Tenant hereby waiving the benefit of all laws
exempting property from executing, levy and sale of distress or judgement.
(D) In the event of the vacation or abandonment of the Premises by Tenant
or in the event that Landlord shall elect to re-enter as provided above or shall
take possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, then if Landlord does not elect to terminate this Lease
as provided in this Xxxxxxxxx 00, Xxxxxxxx may from time to time, without
terminating this Lease, either recover all Rent as it becomes due or relet the
Premises or any part thereof for such term or terms and at such rental or
rentals and upon such other terms and conditions as Landlord in his sole
discretion may deem advisable with the right to make alterations and repairs to
the Premises.
(E) In the event that Landlord shall elect to so relet, then rentals
received by Landlord from such reletting shall be applied: first, to the payment
of any indebtedness other than Rent due hereunder from Tenant to Landlord;
second, to the payment of any cost of such reletting, including but not limited
to broker's commissions and reasonable attorneys' fees; third, to the payment of
the cost of any alterations and repairs to the premises; fourth, to the payment
of any Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future Rent as the same may become due and
payable hereunder. Should any such reletting result in the payment of rentals
less than the Rent payable by Tenant hereunder, then Tenant shall pay such
deficiency to Landlord immediately upon demand therefor by Landlord. Tenant
shall also pay Landlord as soon as ascertained, any costs and expenses incurred
by Landlord in such reletting or in making such alterations and repairs not
covered by the rentals received from such reletting.
(F) No re-entry or taking possession of the Premises by Landlord pursuant
to this Paragraph 22 shall be construed as an election to terminate this Lease
unless a written notice of such intention be given to Tenant. Notwithstanding
any reletting without termination by Landlord because of any default by Tenant,
Landlord may at any time after such reletting, elect to terminate this Lease for
any such default.
RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT
PARAGRAPH 23
If Tenant defaults in the making of any payment or in the doing of any act
herein required to be made or done by Tenant, then Landlord may but shall not be
required to make such payment or do such act and charge to Tenant the amount of
41 costs in connection therewith including but not limited to reasonable legal
fees and expenses
29
incurred by Landlord, with interest thereon as provided in Paragraph 36 from the
date paid by Landlord to the date of payment thereof by Tenant. Such payment and
interest shall constitute Additional Rent hereunder due and payable upon demand
but the making of such payment or the taking of such action by Landlord shall
not operate to cure such default or to stop Landlord from the pursuit of any
other remedy to which Landlord would otherwise be entitled.
NOTICES
PARAGRAPH 24
All notices which Landlord or Tenant may be required or may desire to serve
on the other may be served, as an alternative to personal service, by mailing
the same by registered or certified mail, return receipt requested, postage
prepaid, addressed as set forth in Item 14 of the Basic Lease Provisions, or
addressed to such other address or addresses as either Landlord or Tenant may
from time to time designate to the other by written notice.
INSOLVENCY OR BANKRUPTCY
PARAGRAPH 25
In no event shall this Lease be assigned or assignable by operation of law
and in no event shall this Lease be an asset of Tenant in any receivership,
bankruptcy, insolvency, or reorganization proceeding.
SURRENDER AND HOLDOVER
PARAGRAPH 26
(A) On the expiration or the sooner termination hereof, Tenant shall
peaceably surrender the Premises broom clean, in good order, condition and
repair. On or before the last day of the term or the sooner termination hereof,
Tenant shall at its expense remove its trade fixtures, signs and other personal
property from the Premises. Any property not removed shall be deemed abandoned
and may either retained by Landlord as its property, or disposed of, without
accountability and at Tenant's expense, in such manner as Landlord may
determine. If the Premises are not surrendered at the end of the term or the
sooner termination, Tenant shall indemnify Landlord against loss or liability
resulting from delay by Tenant in so surrendering the Premises, including,
without limitation, claims made by any succeeding tenants found on such delay.
Tenant shall promptly surrender all keys for the Premises and Building restrooms
to Landlord at the place then fixed for payments of Rent. Tenant's covenants
hereunder shall survive the expiration or termination of this Lease.
(B) If Tenant holds over after the expiration or sooner termination hereof
without the express written consent of Landlord, Tenant shall become a Tenant at
sufferance only
30
at two times the greater of (i) the Rent due hereunder or (ii) the then
prevailing market rate rent, as determined by Landlord in its sole and absolute
discretion, plus all items of Additional Rent provided herein, and either (i) or
(ii) shall be prorated on a daily basis according to the number of days
contained in the month that such expiration or earlier termination takes place,
and otherwise upon the terms, covenants and conditions herein specified, so far
as applicable. Acceptance by Landlord of Rent after such expiration or earlier
termination shall not constitute a consent to a holdover hereunder or result in
a renewal. The foregoing provisions of this paragraph are in addition to and do
not affect Landlord's rights of re-entry or any other rights of Landlord
hereunder or as otherwise provided by law.
CONDITION OF PREMISES
PARAGRAPH 27
Landlord's sole responsibility for preparation of the Premises will be as
set forth in the Work Letter attached hereto as Exhibit "B-I" and if there is no
Work Letter, Landlord's sole responsibility will consist of building of a
demising wall and an entry door for Tenant. Landlord's responsibility for the
preparation of the Premises as described above is hereinafter referred to as
Landlord's Work. Except for Landlord's Work, Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Premises, the Building or the Project for the conduct of Tenant's
business. The taking of possession of the Premises by Tenant shall conclusively
establish that the Building and the Premises were at such time in good order and
repair.
QUIET POSSESSION
PARAGRAPH 28
Upon Tenant's paying the rent reserved hereunder and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be performed hereunder, Tenant shall have quiet possession of the Premises for
the entire term hereof, subject to all of the provisions of this Lease. This
covenant shall be binding upon any Landlord hereunder only during its respective
ownership of the Premises.
LIMITATION OF LANDLORD'S LIABILITY
PARAGRAPH 29
(A) Landlord and its employees and agents shall not be liable for any
damage to
Tenant's property entrusted to employees of Landlord or its agents, nor for any
loss or interruption of Tenant's possession, nor for loss of or damage to any
property by theft or otherwise, nor for any injury or damage to persons or
property resulting from fire, explosion,
31
falling plaster, steam, gas, electricity, water or rain which may leak from any
part of the Building or from the pipes, appliances or plumbing works therein or
from the roof, street, or sub-surface or from any other place or resulting from
dampness or any other cause whatsoever in the Building or the Project. Landlord
and its employees and agents shall not be liable for any property loss resulting
from any latent defect in the Premises or in the Building. Notwithstanding the
foregoing provisions of this Paragraph 29(A) to the contrary, Landlord and its
employees and agents shall indemnify, hold harmless and indemnify Tenant against
any claims, loss, costs, damage expense, liability, including without limitation
reasonable attorney's fees, for any injury or damages to any person or property
whatsoever to the extent such injury has been caused by the gross negligence or
willful misconduct of Landlord, its agents, servants, employees or invitees or
when such injury has been caused in part or in whole by any defects relating to
Landlord's obligations with respect to the Landlord's Work which could not have
been discovered by a careful visual inspection or normal use within the three
(3) month period following the issuance of the certificate of occupancy for the
Premises.
(B) Tenant shall look solely to Landlord's estate and property in the
Project (or the proceeds thereof) for the satisfaction of Tenant's remedies for
the collection of a Judgement (or other judicial process) requiring the payment
of money by Landlord in the event of any default by Landlord hereunder, and no
other property or assets of Landlord or Landlord's partners or members shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to either this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use and occupancy of
the Premises.
GOVERNING LAW
PARAGRAPH 30
This Lease shall be governed by and construed pursuant to the laws of the
State of New Jersey.
COMMON FACILITIES
PARAGRAPH 31
Tenant shall have the non-exclusive right in common with others, to the use
of common entrances, lobbies, elevators, ramps, drives, stairs and similar
access and serviceways and the other common facilities (except for parking
spaces other than those provided for in Paragraph 39) in and adjacent to the
Building or Project, as may be provided by Landlord from time to time for
general use, subject to such rules and regulations as may be adopted by the
Landlord including, but not limited to, the right to close from time to time all
or a portion of said common facilities to such extent as may be legally
sufficient, in Landlord's sole opinion, to prevent a dedication thereof or the
accrual of rights to any person or to the public therein.
32
SUCCESSORS AND ASSIGNS
PARAGRAPH 32
Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. However, the obligations of Landlord
under this Lease shall not be binding upon Landlord herein named with respect to
any period subsequent to the transfer of its interest in the Project as owner or
lessee thereof, and in the event of such transfer said obligations shall
thereafter be binding upon each transferee of the interest of Landlord herein
named as such owner or lessee of the Project, but only with respect to the
period commencing with its respective transfer in and ending with a subsequent
transfer out, and such transferee, by accepting such interest, shall be deemed
to have assumed such obligations except only as may be expressly otherwise
provided in this Lease. A lease of Landlord's entire interest in the Project as
owner or lessee thereof shall be deemed a transfer within the meaning of this
Paragraph 32.
BROKERS
PARAGRAPH 33
Tenant represents and agrees that it has not directly or indirectly dealt
with any real estate broker(s) other than the firm(s) specified in Item 12 of
Basic Lease Provisions in connection with this transaction. Further, Tenant
covenants and agrees that with respect to any renewal or extension or expansion
of this Lease, or with respect to any transaction by Tenant or its affiliates,
successors or assigns with Landlord or 000 Xxxxxxx Xxxx Associates, Limited
Partnership with respect to the leasing of space by Tenant either by original
lease, renewal or expansion space within any buildings owned by Landlord or 000
Xxxxxxx Xxxx Associates, Limited Partnership within College Park at Princeton
Xxxxxxxxx Center in Plainsboro, New Jersey, that Tenant will pay all brokerage
commissions or finders fees, commissions, fees or other remuneration claimed by
any real estate broker or finder other than the firm(s) specified in Item 12 of
the Basic Lease Provisions. Tenant agrees to defend, indemnify and hold Landlord
harmless from and against any claims for brokerage commissions or finder's fee
arising out of or based upon any actions of Tenant with respect to any other
broker or brokers other than the firm(s) specified in Item 12 of the Basic
Lease Provisions with respect to the leasing of space by Tenant, either by
original lease, renewal, or expansion space for any space including, but not
limited to the Premises, leased by Tenant or its affiliates, successors or
assigns from Landlord or 000 Xxxxxxx Xxxx Associates, Limited Partnership within
the buildings owned by either of them at College Park at Princeton Xxxxxxxxx
Center in Plainsboro, New Jersey. The terms of this Paragraph will survive
termination of this Lease. With respect to this transaction, Landlord shall pay
the firm specified in Item 12 of the Basic Lease Provisions via a separate
agreement.
33
NAME
PARAGRAPH 34
Tenant shall not, without the written consent of Landlord, use the name of
the Building or the Project for any purpose other than as the address of the
business to be conducted by Tenant in the Premises, and in no event shall Tenant
acquire any rights in or to such names.
EXAMINATION OF LEASE
PARAGRAPH 35
Submission of this instrument for examination or signature by Tenant does
not constitute a reservation of or option for lease, and it is not effective as
a Lease or otherwise until execution by and delivery to both Landlord and
Tenant.
ADDITIONAL CHARGES
PARAGRAPH 36
Any amount due from Tenant to Landlord which is not paid when due, in
addition to other remedies available to Landlord, shall at Landlord's option
bear interest which shall be at the lesser of (i) eighteen (18%) percent per
annum or (ii) the maximum lawful rate per annum, from the date such payment is
due until paid, but the payment of such interest shall not excuse the cure of
default. In addition to the foregoing, Landlord may also impose a late charge of
four (4%) percent of the amount past due, and a charge for reasonable legal fees
and costs.
MARGINAL HEADINGS
PARAGRAPH 37
The marginal headings and titles to the Paragraphs of this Lease are not a
part of this Lease and shall have no effect upon the construction or
interpretation of any part hereof.
34
PRIOR AGREEMENTS; SEVERABILITY
PARAGRAPH 38
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreement, understanding or representation pertaining to any such matter shall
be effective for any purpose. No provision of this Lease may be amended or added
to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party hereunder, shall be held invalid or unenforceable to any extent,
the remainder of this Lease shall not be affected thereby and each term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
PARKING
PARAGRAPH 39
Tenant shall have the right to the non-exclusive use of the number of
parking spaces shown in Item 11 of Basic Lease Provisions. Tenant covenants and
agrees to comply with all reasonable rules and regulations which Landlord may
hereafter from time to time make to assure use of parking spaces by permitted
users. Landlord's remedies under such rules and regulations may include, but
shall not be limited to, the right to tow away at owner's expense any vehicles
not parked in compliance with these rules and regulations. Landlord shall not be
responsible to Tenant for the noncompliance or breach by any other tenant of
said rules and regulations.
AUTHORITY
PARAGRAPH 40
Tenant represents that Tenant is authorized to do business in the State of
New Jersey. Upon Landlord's request, Tenant's signatories hereto will furnish
satisfactory evidence of Tenant's authorization and their authority to execute
this Lease on behalf of Tenant.
NO LIGHT, AIR OR VIEW EASEMENT
PARAGRAPH 41
Any diminution or shutting off of light, air or view of any structure which
may be erected on lands adjacent to the Building shall in no way effect this
Lease or impose any liability on Landlord.
35
FORCE MAJEURE
PARAGRAPH 42
Except as otherwise expressly provided herein, this Lease and the
obligations of Tenant to pay Rent hereunder and perform all of the other
covenants, agreements, terms, provisions and conditions hereunder on the part of
Tenant to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease, if
Landlord is prevented or delayed from so doing by reason of any cause beyond
Landlord's reasonable control, including, but not limited to, Acts of God,
strikes, labor troubles, shortage of material, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulations of any governmental agency or by reason of war, hostilities or
similar emergency; provided that Landlord shall in each instance exercise
reasonable diligence to effect performance as soon as possible. It is agreed
that Landlord shall not be required to incur any overtime or additional expenses
in Landlord's reasonable diligence to effect the performance of any of
Landlord's obligations hereunder.
ATTORNMENT
PARAGRAPH 43
If for any reason the leasehold estate of Landlord as Tenant under any
underlying lease is terminated by summary proceedings or otherwise, Tenant will
attorn to the Landlord under such underlying Lease and will recognize such
Landlord as Tenant's Landlord under this (sub)lease. Tenant agrees to execute
and deliver, at any time, and from time, to time, upon the request of Landlord
or of the Landlord under any such underlying lease, any instrument which may be
necessary or appropriate to evidence such attornment and Tenant hereby appoints
Landlord the Landlord under such underlying lease the attorney-in-fact,
irrevocable, of Tenant to execute and deliver any such instrument for and on
behalf of Tenant. Tenant further waives the provisions of any statute or rule of
law now or election to terminate this (sub)lease or to surrender possession of
the Premises in the event such underlying lease terminates or any such
proceeding is brought by Landlord under such underlying lease, and agrees that
his (sub)lease shall not be affected in any way whatsoever by any such
proceeding or termination.
COMMON AREA MAINTENANCE COST
PARAGRAPH 44
Base Project Operating Expenses as defined in Paragraph 3 shall also
include Landlord's costs and expenses incurred as Landlord's share of common
area maintenance all as set forth in Article 29 of the underlying Land Lease
between the Trustees of Princeton University as landlord and Landlord as tenant.
36
NOTICE REGARDING TENANT'S MOVING IN OR OUT
PARAGRAPH 45
Two days prior to any move into or out of the Premises, Tenant must notify
National Business Parks, as Agent for College Road Associates, of the following:
the name of the Moving Company, Moving Company representative in charge of the
move, and Moving Company's phone number. All moves must be done during the work
week (Monday through Friday, inclusive between the hours of 7:30 AM. and 4:30
P.M.). No elevators will be available Saturday, Sunday or holidays or after 4:30
P.M. on other days. The insurance evidence in the form required by Paragraph 19
hereof must be delivered to Landlord prior to commencement of the Tenant's move
into or out of the Premises.
OPTION TO EXPAND FIRST AVAILABLE SPACE
PARAGRAPH 46
Tenant shall have the option to expand into space when it first becomes
vacant ("Expansion Space") in the Building upon that Expansion Space becoming
vacant by giving Landlord notice in the manner hereinafter set forth on the
terms and conditions hereinafter provided. The notice must be given by. the
Tenant in writing to the Landlord within thirty (30) days after the later of the
Landlord giving notice that such Expansion Space is or will be vacant or the
Expansion Space actually becoming vacant. Time is of the essence. The Basic Rent
for such Expansion Space will be fair market rent for comparable space in the
Princeton area. The Base Year for the initial term for the Expansion Space will
be the first calendar year that the Expansion Space is leased by Tenant from
Landlord. Except as herein provided in this Paragraph, the other terms of this
Lease will apply to such Expansion Space. If no renewal term commences after the
term for the Expansion Space commences, the term for the Expansion Space will
end the later of (i) the date defined in 8 of the Basic Lease Provisions or the
date the current renewal period ends or (ii) sixty (60) months from the date the
term for the Expansion Space commences. If a renewal term commences while the
Expansion Space is subject to this Lease, the initial term for the Expansion
Space will end when the Renewal term begins. Such Expansion Space leased is part
of the Premises for any renewal term. If the term for the Expansion Space ends
on a date later than the date the Lease would have terminated had there been no
Expansion Space, and no renewal term is elected which would go into effect after
the Expansion Space is occupied, the rate of Basic Rent will then be increased
for all the Premises to the highest Basic Rent for any Expansion Space for that
period of time after the date the Lease would have terminated had there been no
Expansion Space, and further, the term for all the Premises will be extended to
a date sixty (60) months from the date the term for the Expansion Space
commences.
This is a one time option as to each space of whatever size when such space
first becomes vacant after the date of this Lease in the Building. For example,
if all space in the Building not initially the subject of this Lease becomes
vacant all at once subsequent to the date of the Lease, and none of such space
was vacant from the date of this Lease to the
37
date when all such space becomes vacant, then this option will apply to such
space for the period stated in the Second sentence of this Paragraph 46 and will
not apply again to any space in the Building. When a part of the space in the
Building not initially the subject of this Lease first becomes vacant after the
date of this Lease, this option will apply to such part for the period stated in
the second sentence of this Paragraph 46 and will not apply again to such part.
An Amendment to this Lease will be made to reflect the effect of this
Paragraph 46, if the Option to Expand described in this Paragraph 46 is elected.
FIRST OPTION TO RENEW
PARAGRAPH 47
Upon condition that Tenant is not in default in the payment of any Rent or
other charge payable to Tenant under this Lease and not in default in the
performance of any covenant or obligation to be performed by Tenant under this
Lease and upon Tenant's giving Landlord twelve (12) months notice in writing in
the manner prescribed in Article 24 hereof prior to the expiration of the term
hereof, Tenant shall have the option to renew and extend this Lease for an
additional period of five (5) years, pursuant and subject to all terms,
covenants, provisions, and conditions of this Lease, including, without
limitation, the payment of all items of Rent as provided for hereunder, except
that the Basic Annual Rent shall be adjusted to the then prevailing fair market
rent for comparable space within Princeton Xxxxxxxxx Center.
SECOND OPTION TO RENEW
PARAGRAPH 48
Upon condition that Tenant is not in default in the payment of any Rent or other
charge payable to Tenant under this Lease and not in default in the performance
of any covenant or obligation to be performed by Tenant under this Lease and
upon condition that Tenant has exercised the renewal option granted in Paragraph
47 hereof, and upon Tenant's giving Landlord twelve (12) months notice in
writing in the manner prescribed in Article 24 hereof prior to the expiration of
the term hereof (as may be extended pursuant to Paragraph 47 hereof), Tenant
shall have the option to renew and extend this Lease for an additional period of
five (5) years, pursuant and subject to all terms, covenants, provisions, and
conditions of this Lease, including, without limitation, the payment of all
items of Rent as provided for hereunder, except that the Basic Annual Rent shall
be adjusted to the then prevailing fair market rent for comparable space within
Princeton Xxxxxxxxx Center.
38
EXHIBIT "A"
[MAP APPEARS HERE]
EXHIBIT B-1
LANDLORD'S WORK LETTER
It is the intent of this Exhibit that Tenant shall be permitted reasonable
freedom in the interior design and layout of its space, consistent with
applicable building codes and sound architectural and construction practices in
first class office buildings, provided that no interference is caused to the
operation of the Building's mechanical, heating, cooling or electrical systems
or other building operations or functions, and no increase in maintenance or
utility charges will be incurred by Landlord. Any additional costs of design,
construction, operation or maintenance which results from Tenant's deviations
from Building Standard quantities or specifications shall be charged to Tenant.
A. IMPROVEMENTS
1. Landlord's Work: Landlord, at its sole cost and expense, shall furnish
---------------
and install in or for the benefit of the Premises pursuant to the plans and
specifications referred to below, the following:
(a) For divided-floor tenancies, all walls separating the Premises from
areas or from other tenant space.
2. Landlord Allowance: Landlord will contribute $15.00 per rentable
------------------
square foot, towards all Tenant improvements in demised premises only.
3. Landlord's Option for Tenant's Work: Landlord under the terms of this
-----------------------------------
Lease will allow Tenant to perform its own work under the following conditions:
A) Landlord has the exclusive option to either accept to perform the
Tenant work upon the Tenant producing competitive bids from qualified and
approved contractors, and provided the scope of the work is equal to all other
bids, or elect not to perform the work Tenant must submit to the Landlord its
lowest bid price in the following manner.
1) Name of the general contractor indicating a lump sum bid and
a bid breakdown of the general contractor's sub-contractors with
their bid price.
Example:
Electrical:
-----------
Name: Contractor
Bid Price: Amount
HVAC:
----
Name: Contractor
Bid Price: Amount
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For the purpose of this bid, the following general contractors are here-by
approved:
1. Xxxxxx
2. Xxxxx, Xxxx & Xxxxxxx
3. Boys Construction Corp.
4. Torcon
* Note: Work must be performed with union labor of local jurisdiction, no
outside local jurisdiction is approved under this Lease.
2) Landlord maintains the exclusive right to approve or disapprove
any of the general contractors or sub-contractors, not listed above.
3) Landlord's Approval: Tenant's plan, as hereinafter defined, shall
-------------------
be subject to Landlord's prior written approval or disapproval within
five days of the receipt of same. If Tenant's plan requires any
variance or any modifications of any existing site plan, Tenant will
be responsible for obtaining all approvals required at Tenant's sole
cost and expense. Landlord will cooperate with Tenant in securing such
approvals.
4) If Landlord elects to perform all of the Tenant work, then any
cost above the Landlord's allowance will be paid for by the Tenant.
Payments to the Landlord will be made as follows:
a) one third (1/3) at time of issuance of all building permits
b) one third (1/3) when the work is 50% completed
c) one third (1/3) upon completion less 10% retainage
5) Base Building Changes: If Tenant Plan necessitates revisions in
---------------------
the design of the base building or necessitates changes in the
construction of the base building for which Landlord has previously
contracted, Tenant shall be responsible for all costs resulting from
such design revisions or construction changes, including but hot
limited to architectural and engineering changes, and any special
permits for fees attributed thereto. Before Landlord shall authorize
such design and/or construction changes, Tenant shall pay Landlord the
full cost attributable thereto. All costs will be paid to the Landlord
with a 10% general condition and a 10% profit fee, above sub-
contractors cost. Landlord will not proceed with any contract changes
without prior written consent by Tenant and or its representative.
6) In the event that Tenant performs its own construction the payment
of the Landlord's allowance will be paid to the Tenant upon the
issuance of a final Certificate of Occupancy.
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B. CONSTRUCTION
1. By Tenant: If Landlord elects not to perform the construction for
the Tenant improvements, then the work may be done by the Tenant in compliance
with the following:
a) No such work shall proceed without Landlord's prior written
approval of (i) Tenant's contractor, if any; (ii) detailed plans and
specifications for the work which are usual and customary; and (iii) a
certificate of xxxxxxx'x compensation insurance in an amount and with a company
and on a form reasonably acceptable to Landlord and a certificate of insurance
in form and from an insurer reasonably acceptable to Landlord, showing Tenant or
Tenant's contractor to have in effect public liability, comprehensive general
liability and property damage insurance with limits of not less than
$1,000,000/$5,000,000 and $1,000,000 respectively. All such certificates except
worker's compensation shall be endorsed to show Landlord as an additional
insured and such insurance shall be maintained by Tenant or Tenant's contractor
at all times during the performance of Tenant's work.
b) All such work shall be done in conformity with applicable codes
and regulations of governmental authorities having jurisdiction over the
Building and Premises and with valid building permits and other authorizations
from appropriate governmental agencies when required shall be obtained by
Landlord's representative at Tenant's sole expense. Any work not being performed
by Landlord, and not acceptable to the appropriate governmental agencies or not
reasonably satisfactory to Landlord, shall be promptly replaced at Tenant's
expense. Notwithstanding any failure by Landlord to object to any such work,
Landlord shall have no responsibility therefore, except for the negligence or
willful misconduct of Landlord. Tenant agrees to save and hold Landlord harmless
for said work as provided in the Lease.
c) Tenant and Tenant's contractors shall abide by all safety and
construction laws, ordinances, rules and regulations. All work and deliveries
shall be scheduled through Landlord. Entry by Tenant's contractors shall be
deemed to be under all the terms, covenants, provisions and conditions of the
Lease. All Tenant's materials, work, installations and decorations of any nature
brought upon or installed in the Premises before the Commencement Date shall be
at Tenant's risk, and neither Landlord nor any party acting on Landlord's behalf
shall be responsible for any damage thereto or loss or destruction thereof.
Tenant shall not employ any contractor who in Landlord's opinion may prejudice
Landlord's negotiations or relationships with Landlord's contractors or
subcontractors or the negotiations or relationship of those contractors or
subcontractors with their employees, or may disturb harmonious labor relations.
d) Tenant shall reimburse Landlord for any actual, direct, and
reasonable extra expenses incurred by Landlord by reason of faulty work done by
Tenant or its contractors, or by reason of delays caused by such work, or by
reason of cleanup which fails to comply with Landlord's rules and regulations,
or by reason of building use outside normal working hours.
e) In addition to the sums to be paid to the Landlord pursuant to the
above, Tenant shall pay to Landlord a building service fee of ten percent (10%)
of the total
41
cost of Tenant's work not performed by Landlord. Such building service fee shall
be paid in the same manner as indicated in A-4 (above).
f) Tenant's contractors shall not post any signs on any part of the
Building or the Premises.
g) Tenant shall, upon Landlord's written request, provide Landlord
with copies of bills and invoices for the cost of Tenant's Work hereunder,
performed by Tenant or Tenant's contractors.
2. Tenant's Option to Use Landlord's Contractor: Tenant may elect to have
any of the work described above done by Landlord's contractor at Tenant's
expense.
3. Changes: If there are any changes requested by Tenant, after approval
of Tenant's Plan, Tenant shall be responsible for costs including permits and
fees, architectural, engineering and related design expenses resulting from such
changes. No such changes shall be made without prior written approval of
Landlord. Landlord shall not be responsible for delay in occupancy by Tenant
because of changes to plans after approval by Tenant as outlined above. Upon
completion of such revised working drawings and specifications, Landlord shall
notify Tenant in writing of the cost which will be chargeable to Tenant by
reason of such change, addition or deletion. Tenant shall, within (5) business
days, notify Landlord in writing whether it desires to proceed with such change,
addition or deletion. In the absence of such written authorization and payment
in full of the total costs of such change, addition or deletion, Landlord shall
not be obligated to continue work on Tenant's Premises and may suspend work and
Tenant shall be responsible and chargeable for any and all delays in the
completion of the Premises resulting therefrom.
4. Tenant's Inspection: Tenant is authorized by Landlord to make periodic
inspections of the Premises during construction provided that such inspections
are made during reasonable business hours and that Tenant is accompanied by a
representative of the Landlord. Tenant shall advise Landlord immediately in
writing of any objection to the performance of Tenant's Work.
5. If the Tenant's Work is done by other than Landlord, the term of this
Lease shall commence on the earlier of (a) the Target Commencement Date as shown
in Item 9 of the Basic Lease Provisions or (b) such earlier date as Tenant is
able to take possession of and is able to use the premises as a research
laboratory (in no event later than January 1, 1999).
C. ACCEPTANCE OF PREMISES
When Landlord's Work and Tenant's Work is substantially completed in
accordance with Tenant's Plan (except for the punch list items) and a Temporary
Certificate of Occupancy is issued, the Premises shall be considered acceptable
for occupancy. Within five (5) business days of Landlord's notice that
Landlord's Work and Tenant's Work has been substantially completed, Tenant shall
inspect the Premises in the presence of Landlord
42
and Landlord's contractor in order to establish a punch list of items to be
completed or corrected.
D. RESPONSIBILITY FOR DELAYS
If Tenant shall cause any delay in the construction of the Premises,
whether reason of any failure by Tenant to comply with the applicable time
schedule set forth in Paragraph B-5, or by Tenant's requirement of materials or
installations different from the Building Standard, or by delays in performance
of completion by a party employed by Tenant, or by reason of building code
problems arising from Tenant's design, or by reason of changes in the work
ordered by Tenant, then notwithstanding the provisions of the Lease or any other
provision of this Exhibit, any such delay in completing the Premises shall not
in any manner affect the Lease Commencement Date of the Tenant's liability for
the payment of rent set forth in the Lease.
E. INCORPORATED OF LEASE
This Agreement is, and shall be incorporated by reference in the Lease
and all of the terms and provisions of said Lease are and shall be incorporated
herein by this reference.
F. BUILDING STANDARD ALLOWANCES
Landlord, at Landlord's expense, except as otherwise expressly
specified in this Exhibit B and in the foregoing Lease, shall furnish and
install in and to the Premises the following, all of which shall be of material,
manufacture, design, capacity, finish and color of the Building Standard adopted
by Landlord for the Building in accordance with the Tenant's Plan.
G. ELECTRICAL CONSUMPTION CALCULATION
If Tenant's electrical requirements exceed power designed to be
provided to the Premises, in order to accurately calculate the power consumed by
Tenant, it is a requirement of this Lease that the electrical design will
incorporate a check meter in order to properly calculate the power usage. The
Landlord will be consulted as to the type of meter required. All associated
cost(s) are inclusive of Tenant's Workletter Allowance.
H. FINAL PAYMENT OF EXCESS COSTS
If prior to Tenant's occupancy of the Premises there is a default by
Tenant in payment of the sum it owes Landlord for the construction of the
Premises or other cost of charges stated herein, Landlord shall, in addition to
all other legally allowable remedies, have the same rights as in the case of
default in rent under the Lease. However, Landlord must provide Tenant with
written notice of such default, and Tenant shall have the appropriate time
periods to cure such default as detailed in the Lease.
43
EXHIBIT B-2
BUILDING STANDARD
300 SERIES
1. PARTITIONS
(a) Partitions within the Demised Premises shall have 5/8" gypsum
board on each side of 2-1/2" metal studs, 24" on center, taped
and spackled, to underside of finished ceiling. Partitions
between the Demised Premises and corridor(s) and between the
Demised Premises, any adjacent space shall have 5/8" fire code
gypsum board, taped and spackled, on each side of 3-1/2" metal
studs, 24" on center. Demising partitions and corridor partitions
to have 1-1/2" (full thick) sound deadening insulation installed
within from floor to underside of floor above.
(b) There will be no jogs, curves or angles in any partition.
(c) Vinyl base 4" high to be on all partitioning and existing walls
and columns.
2. DOORS
(a) All frames to be 16 gauge, pressed steel, painted.
(b) Doors within Demised Premises to be 3'-0" x 7'-0" nominal x 1-
3/4" solid core oak, rift cut, matched finish. Doors to have fire
rating as required by applicable codes.
3. HARDWARE
(a) Cylindrical latch sets, standard weight, on individual office
doors within the Demised Premises.
(b) Cylindrical lock sets, heavy duty, and closers on doors from
corridor(s) on Demised Premises.
(c) Lock sets and latch sets to be Schlage, Sargent, Yale, Russwin or
equal, as selected by Landlord.
(d) All lock sets shall be keyed to the building master key system.
44
4. ACOUSTICAL CEILINGS
(a) Lay-in acoustic tile ceilings, within Demised Premises, shall be
24" x 48" regressed white mineral fiber, textured panels with
white recessed "T" - spline, as selected by Landlord.
(b) Ceiling heights within Demised Premises to be nominal 9'-0".
(c) Direction of ceiling-grid to be as determined by Landlord.
5. FLOORING
Building standard carpet to be in all tenant areas where vinyl composition
tile is not installed. All carpets will be selected from Landlord's
samples, or of equal quality.
6. PAINTING
(a) Interior wall surfaces of gypsum board shall receive two (2)
coats of flat latex paint, colors to be selected by Tenant from
Landlord's samples.
(b) All interior ferrous metal surfaces shall receive two (2) coats
of alkyd semigloss enamel paint over shop-applied primer.
(c) All wood doors to receive one (1) coat of sealer and two (2)
coats of clear polyurethane satin varnish.
(d) Paint manufacturers to be Xxxxxxx Xxxxxxxx, or approved equal, as
selected by Landlord.
7. WINDOW COVERING
All exterior windows to receive building standard, narrow, horizontal
aluminum slat blinds, Levelor or equal, as selected by Landlord.
8. ELECTRICAL SPECIFICATIONS
(a) Lighting - Provide 2' x 4' 3L - high efficiency open deep cell
fixtures in regressed aluminum frame with air return feature.
(b) Power - Wall mounted duplex receptacles must meet all applicable
codes.
(c) The average electric load of the Demised Premises shall not
exceed five (5) xxxxx per square foot for lighting and power in
office areas. Landlord will provide available service of 200A
277/480V 3 phase, for Tenant's exclusive use. All other
switchgear required is a function
45
of the work letter allowance.
(d) Landlord shall initially provide and install lamps and ballasts.
Replacement of same shall be by Landlord, at Tenant's expense.
9. FIRE AND LIFE SAFETY FEATURES
(a) The Building is fully sprinklered in all areas.
(b) Fire Alarm System consisting of manual pull boxes, annunciators,
alarm bells, control panel, etc. shall be required per code.
(c) Smoke detectors, ionization-type, in corridors, Tenant's space,
electrical equipment rooms, elevator machine rooms and ductwork
where the air quality is over 15,000 CEM. Firestats in the
ductwork where air quality is less than 15,000 CEM.
(d) Battery back-up shall be required in the Building to operate all
emergency and exit lighting fixtures in public areas and fire
alarm system.
10. TELEPHONE WORK
(a) The Landlord shall arrange with New Jersey Xxxx Telephone Company
for telephone service within the equipment room in the Building's
core.
(b) All telephone work and wiring in partitions, floors and ceilings
to be paid for by Tenant as arranged for by Tenant with any
qualified installer selected by Tenant but approved by Landlord.
Landlord will coordinate work with other trades as required.
Completion or non-completion of the telephone work will not delay
Tenant's acceptance of the Demised Premises or the payment of
Rent. All electrical load centers, special wiring and plywood
supplied by Landlord for telephone equipment shall be an extra
cost to be paid by Tenant. Telephone company work is to meet all
prevailing codes.
11. HVAC SPECIFICATIONS
(a) Heating, ventilation and air-conditioning system shall be capable
of maintaining the following interior conditions, subject to
governmental regulations:
Summer - 75 degrees F (+2 degrees F) dry bulb and 50% relative
humidity, when outside temperature is 90 degrees F dry bulb and
75 degrees wet bulb.
46
Winter - 68 degrees F when outside temperature is 14 degrees F.
(b) The VAV system with roof top A/C unit will have automatic
thermostats mounted in the rooms or open spaces within the
Demised Premises.
(c) The VAV units are connected to roof top A/C units with filters,
mixing dampers and fan motor.
(d) Tenant override timers and running hour meter will be provided in
electrical closet for after hours use.
(e) The air supply distribution of the HVAC system for the Demised
Premises shall be based on five (5) xxxxx per square foot of
total electrical load for all purposes. Occupancy rate is based
on one (1) person per 200 square feet.
(f) All heating will be provided from the perimeter base board
heaters via solid state controllers, from Building central
system.
(g) The control system for the heating will be by means of electric
thermostats mounted in the rooms or open spaces within the
Demised Premises as described in (11 b) interfaced with solar &
ambient outdoor temperature sensors.
(h) Zoning within Tenant's Demised Premises shall provide interior
and perimeter zones. The number of zones, as determined by
Landlord, shall be based on orientation and total area occupied
with average zones as follows:
Perimeter of areas - one (1) zone per 1,200 square feet
Interior areas - one (1) zone per 2,000 square feet
An average of 1 CFM per square foot will be delivered by the HVAC
system within the Demised Premises. Diffusers supplying air will
be spaced at 1 per 225 square feet.
(i) If Tenant's equipment (i.e. computers, business machines, etc.)
or special uses (i.e. conference rooms, mailrooms, lunch rooms,
etc.) requires air-conditioning above and beyond Building
Standard, as outlined, said additional air conditioning
(including cost of operation as stipulated in the Lease) shall be
paid for by Tenant. Any special exhaust requirements will also be
paid for by Tenant.
47
EXHIBIT "C"
COMMENCEMENT DATE MEMORANDUM
THIS AGREEMENT made the ___ day of _______, 1998, by and between COLLEGE:
ROAD ASSOCIATES, LIMITED PARTNERSHIP ("Landlord") and ______________ with an
office at _______________, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a lease dated ___________
("Lease") setting forth the terms of occupancy by Tenant of a portion of a
Building located at ___________ Princeton, New Jersey; and
WHEREAS, the Lease is for a term of _____________, with the "Target
Commencement Date" of the term being defined as __________ in Basic Lease
Provisions of the Lease; and
WHEREAS, it has been determined that ________________ is the actual
Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter set forth, it is agreed:
1. The actual Commencement Date of the term of the Lease is ____________
and the termination date thereof is _______________
2. This agreement is executed by the parties for the purpose of providing
a record of the commencement and termination dates of the term of the Lease.
48
IN WITNESS WHEREOF, the parties hereto have duly executed this instrument
as of the day and year first above written.
COLLEGE ROAD ASSOCIATES,
LIMITED PARTNERSHIP
BY: Z XXXXXXXXX CENTER, L.P.
Its Managing General Partner
BY: Z XXXXXXXXX CORP.,
Its General Partner
ATTEST
BY:________________________ BY:_______________________________
Name: Name: Xxxx Xxxxxxxx
Title: Title: President
ATTEST
BY:________________________ BY:_______________________________
Name: Name:
Title: Title:
49
RULES AND REGULATIONS
---------------------
Exhibit D
1. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by any of the tenants nor used by them for any other purpose than for
ingress and egress to and from their respective offices, nor shall they be used
as a waiting or lounging place for tenant's employees or those having business
with tenants. The halls, passages, elevators, stairways and roofs are not for
the use of the general public, and Landlord retains in all cases the right to
control and prevent access to any part of said Building of all persons whose
presence, in the judgement of Landlord or Landlord's employees, may be
prejudicial to the safety, character, reputation or interests of the Building
and its tenants. In case of invasion, mob, riot, public excitement or other
commotion, Landlord reserves the right to prevent access to the Building during
the continuance of same by closing the doors or otherwise, for the safety of
tenants and the protection of property in said Building. During other than
business hours, access to the Building may also be refused, unless the person
seeking admission is known by Landlord's agent in charge to have the right to
enter the Premises therein or is properly identified. In addition, the
production of a key to such premises may be required. Landlord shall in no case
be liable in damages for the admission or exclusion of any person from said
Building.
2. The floors, walls, partitions, skylights, transoms that reflect or admit
light into passageways or into any place in said Building shall not be covered
or obstructed by any of the tenants. The toilet-rooms, sinks and other water
apparatus shall hot be used for any purposes other than those for which they
were constructed, and no sweepings, rubbish, rags, ashes, chemicals or refuse
shall be thrown or placed therein. Any damage resulting from such misuses or
abuse shall be borne and immediately paid by Tenant by whom or by whose
employees it shall have been caused.
3. Nothing shall be placed by tenants or their employees on the outside of the
Building.
4. No sign, advertisement or notice shall be inscribed, painted or affixed on
any part of the outside or inside of said Building, unless of such character,
color, size and material and in such places as shall be first designated by
Landlord in writing. A sign painter authorized by Landlord will do such work at
Tenant's expense.
5. Tenant will see that the windows are closed and the doors securely locked
each day before leaving the Building. Shades shall be of the material, style,
form and color adopted by Landlord for the Building, and no tenant shall put up
any that do not conform to such standards. Tenant shall have the right to remove
such shades at the expiration of the lease.
6. Tenant, their employees or others shall not make or commit any improper
noises or disturbances of any kind in the Building, nor smoke in the elevators,
xxxx or defile the elevators, bathrooms or interfere in any way with other
tenants or those having business in the Building. Tenants shall be liable for
all damage to the Building done by their employees. Cigar & pipe smoking will
not be permitted anywhere in the Building.
50
7. No carpet, rug or other article shall be hung or shaken out of any window,
and nothing shall be thrown by tenants or tenants' employees nor be allowed by
them to drop out of the windows or doors or down the passages or skylights of
the Building; and no tenant shall sweep or throw or permit to be swept or thrown
from the Premises any dirt or other substance into any of the corridors or
halls, elevators or stairways of the Building, or into any of the lightshafts or
ventilators thereof.
8. No animals shall be kept in or about the Premises, except for small
laboratory animals.
9. If the tenants desire to introduce signalling, telegraphic, telephonic or
other wires and instruments, Landlord will direct the electricians as to where
and how the same are to be placed; and, without such direction, no placing
boring or cutting for wires will be permitted. Landlord retains in all cases the
right to require the placing and using of such electrical protecting devices to
prevent the transmission of excessive currents of electricity into or through
the Building, to require the changing of wires and of their placing an
arrangement underground or otherwise as Landlord may direct, and further to
require compliance on the part of all using or seeking access to such wires with
such rules as Landlord may establish thereto; and, in the event of noncompliance
by tenants or by those furnishing service by or using such wires or by others
with the directions, requirements or rules, Landlord shall have the right to
immediately cut, displace and prevent the use of such wires. Notice requiring
such changing of wires and their replacing and rearrangement given by Landlord
to any company or individual furnishing service by means of such wires to any
tenant shall be regarded as notice to such tenants and shall take effect
immediately. All wires used by tenants must be clearly tagged at the
distributing boards and junction boxes and elsewhere in the Building and with
the number of the office to which said wires lead and the purpose for which said
wires respectively are used, together with the names of the company operating
same.
10. A directory in a conspicuous place on the first floor, with the names of
tenants, will be provided by Landlord at Landlord's expense.
11. No varnish, stain, paint, linoleum, oil-cloth, rubber or other air-tight
covering shall be laid or put upon the floors; nor shall articles be fastened to
or holes drilled or nails or screws driven into walls, doors or partitions; nor
shall the walls, doors or partitions be painted, papered or otherwise covered or
in any way marked or broken; nor shall any tenant use any other method of
heating than that provided by Landlord; without the written consent of Landlord,
which consent shall not be unreasonably withheld.
12. The delivery of materials and other supplies to tenants in the Building
will be permitted only under the direction, control and supervision of the
Landlord.
13. The use of rooms as sleeping apartments is prohibited.
14. All entrance doors leading from the hallways are to be kept closed at all
times.
15. For the protection of tenants, the Landlord reserves the right to refuse the
51
admittance to the Building between the hours of 5:30 p.m. and 8:00 a.m., Monday
through Friday, and from 1:00 p.m. Saturday to 8:00 a.m. Monday to any person
not producing a key to such Tenant's office or suite and a pass issued by
building management upon the direction of the tenant. Tenants will instruct the
Building manager from time to time as to the number of persons to whom they
desire passes issued for this purpose. It will be the responsibility of the
Tenant to pick up any pass and key whenever the employment of the passholder is
discontinued.
16. Tenants must use designated parking lots only during hours of building
operation. Tenant parking is restricted to main lots and is not permitted in any
other area whatsoever including visitor, delivery or fire lane areas. It is
expressly prohibited to allow overnight parking or storage of vehicles used by
`employees or in the course of business without prior written consent of
Landlord.
Violation of this parking regulation will result in removal of the vehicle at
the sole cost of tenant.
17. Tenants must adhere to all recycling mandates (as they may be required by
local and state laws), and Landlord's existing established procedure (s).
18. No smoking is permitted in the Premises or any other part of the Building.
19. No vending machine of any type are permitted in the Premises without the
prior written consent of the Landlord.
20. All deliveries to and/or from the Building must be coordinated with the
Building's Management.
52
EXHIBIT E
COLLEGE PARK AT
PRINCETON XXXXXXXXX CENTER
JANITORIAL SPECIFICATIONS
General Cleaning
----------------
Cleaning Services provided five (5) days per week unless otherwise
specified.
Cleaning hours Monday through Friday, between 6:00 p.m. and before 8:00
a.m. of the following day.
On the last day of the week work will be done after 6:00 p.m. Friday, but
before 8:00 a.m. Monday.
No cleaning on holidays.
I. Office Area
-----------
Furniture and fixtures within reach will be dusted and desk tops will be
wiped clean. However, desks with loose papers on top will not be cleaned.
Window xxxxx and baseboards to be dusted and washed when necessary.
Office wastepaper baskets will be emptied.
Cartons or refuse in excess of that which can be placed in wastebaskets
will not be removed. Tenants are required to place such unusual refuse in
trash cans.
Cleaner will not remove or clean tea or coffee cups or similar containers;
also, if such liquids are spilled in wastebaskets, the wastebaskets will be
emptied but not otherwise cleaned. All kitchen cleaning by Tenant.
Carpets will be vacuumed nightly.
All tile floors will be vacuumed nightly and wet mopped weekly.
Wipe clean all glass, brass and other bright work weekly.
Dust all pictures, charts, wall hangings monthly that are not reached in
nightly cleaning.
Dust all vertical surfaces to include doors, bucks and partitions monthly.
Dust all ventilating louvers and other such installations monthly.
53
II. Lavatories
----------
All lavatory floors to be swept and washed with disinfectant nightly.
Tile walls and dividing partitions to be washed and disinfected weekly.
Basins, bowls, urinals to be washed and disinfected daily.
Mirrors, shelves, plumbing work, bright work, and enamel surfaces cleaned
nightly.
Waste receptacles will be emptied and cleaned and wash dispensaries to be
filled with appropriate tissues, towels, and soap nightly.
III. Main Lobby Elevators, Building Exterior and Corridors
-----------------------------------------------------
Wipe and wash all floors in Main Lobby nightly.
Wipe and/or vacuum elevator floor nightly.
Polish floors weekly in elevator.
IV: All windows interior and exterior will be cleaned once a year.
V: Tenant will comply fully with the New Jersey State Recycling Mandates.
VI: Tenant is responsible for the cleaning of Tenant's laboratory area(s).
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EXHIBIT "F"
Model Letter of Credit
----------------------
{Insert name and address of issuing bank}
---------------------------------------
{Insert date}
IRREVOCABLE LETTER OF CREDIT NO. {Insert number}
{Insert name and address of owner}
Dear Sir:
At the request and for the account of {insert name of Tenant} located at
---------------------
{insert address of Tenant} (hereinafter called "Applicant"), we hereby establish
------------------------
our Irrevocable Letter of Credit No. {insert number} in your favor and authorize
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you to draw on us up to the aggregate amount of US $ {insert amount of Letter of
--------------------------
Credit} available by your draft(s) at sight drawn on us and accompanied by the
------
following:
A written statement by you that:
(i) "Applicant is in default under that certain lease, dated as of {insert
------
date of lease} between you, as Landlord, and Applicant, as Tenant (the
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`Lease');" or
(ii) "Applicant has failed to deliver timely a renewal Letter of Credit as
provided in the Lease."
This Irrevocable Letter of Credit will be duly honored by us at sight upon
delivery of the statement set forth above without inquiry as to the accuracy of
such statement and regardless of whether Applicant disputes the content of such
statement.
We hereby engage with you that all drafts drawn under and in compliance with the
terms of this Irrevocable Letter of Credit will be duly honored by us if
presented at {insert address of issuing bank} no later than {insert expiration
------------------------------ -----------------
date of Letter of Credit}, it being a condition of this Irrevocable Letter of
------------------------
Credit that it shall be automatically extended for periods of at least one year
from the present and each future expiration date unless, at least sixty (60)
days prior to the relevant expiration date, we notify you, by certified mail,
return receipt requested, that we elect not to extend this Irrevocable Letter of
Credit for any additional period.
This Irrevocable Letter of Credit is transferable at no charge to any transferee
of Landlord upon notice to the undersigned from you and such transferee.
This Irrevocable Letter of Credit is subject to the Uniform Customs and
Practices for Documentary Credits (1983-Rev) International Chamber of Commerce
Publication #400.
Sincerely yours,
{Insert authorized signature}
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