Exhibit 10.15
LEASE
FROM:
SYLVAN/ CAMPUS REALTY L.L.C.
LESSOR
TO:
THE MEDICINES COMPANY
LESSEE
BUILDING:
0 XXXXXX XXXXX
XXXXXXXXXX, XXX XXXXXX
TABLE OF CONTENTS
1. DESCRIPTION:............................................................3
2. TERM:...................................................................3
3. BASIC RENT:.............................................................3
4. USE AND OCCUPANCY:......................................................3
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:..............................3
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:.................................6
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:.............................6
8. ASSIGNMENT AND SUBLEASE:................................................6
9. COMPLIANCE WITH RULES AND REGULATIONS:.................................10
10. DAMAGES TO BUILDING:...................................................10
11. EMINENT DOMAIN:........................................................10
12. INSOLVENCY OF LESSEE:..................................................11
13. LESSOR'S REMEDIES ON DEFAULT:..........................................11
14. DEFICIENCY:............................................................11
15. SUBORDINATION OF LEASE:................................................12
16. SECURITY DEPOSIT:......................................................12
17. RIGHT TO CURE LESSEE'S BREACH:.........................................13
18. MECHANIC'S LIENS:......................................................13
19. RIGHT TO INSPECT AND REPAIR:...........................................13
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:................14
21. INTERRUPTION OF SERVICES OR USE:.......................................14
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:...........................14
23. ADDITIONAL RENT:.......................................................16
24. LESSEE'S ESTOPPEL:.....................................................18
25. HOLDOVER TENANCY:......................................................18
26. RIGHT TO SHOW PREMISES:................................................19
27. LESSOR'S WORK - LESSEE'S DRAWINGS:.....................................19
28. WAIVER OF TRIAL BY JURY:...............................................19
29. LATE CHARGE:...........................................................19
30. LESSEE'S INSURANCE:....................................................19
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31. NO OTHER REPRESENTATIONS:..............................................21
32. QUIET ENJOYMENT:.......................................................21
33. INDEMNITY:.............................................................21
34. ARTICLE HEADINGS:......................................................22
35. APPLICABILITY TO HEIRS AND ASSIGNS:....................................22
36. OUTSIDE PARKING SPACES:................................................22
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:...............................22
38. PARTIAL INVALIDITY:....................................................22
39. LESSEE'S BROKER:.......................................................22
40. PERSONAL LIABILITY:....................................................23
41. NO OPTION:.............................................................23
42. DEFINITIONS:...........................................................23
43.
LEASE COMMENCEMENT:....................................................24
44. NOTICES:...............................................................24
45. ACCORD AND SATISFACTION:...............................................24
46. EFFECT OF WAIVERS:.....................................................24
47.
LEASE CONDITION:.......................................................25
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:............................25
49. LESSOR'S RESERVED RIGHT:...............................................25
50. CORPORATE AUTHORITY:...................................................25
51. AFTER-HOURS USE:.......................................................25
52. LESSEE'S EXPANSION/RELOCATION:.........................................26
53. BUILDING PERMIT:.......................................................26
54. OPTION TO RENEW: ......................................................26
55. RIGHT OF FIRST OFFER:..................................................27
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LEASE, is made the 30th day of September, 2002 between SYLVAN/ CAMPUS
REALTY L.L.C. (herein referred to as "Lessor") whose address is c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and THE
MEDICINES COMPANY (herein referred to as "Lessee") whose address is 0 Xxxxxx
Xxx, Xxxxxxxxxx, Xxx Xxxxxx, 00000.
PREAMBLE
BASIC
LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this
Lease, the following terms
whenever used in this
Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of the
Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during
Calendar Year 2003.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred during
Calendar Year 2003.
C. Base Utility and Energy Costs: Those Utility and Energy Costs
incurred during Calendar Year 2003
3. BUILDING shall mean 0 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx.
4. BUILDING HOLIDAYS shall be those shown on Exhibit F.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m.,
but excluding those holidays as set forth on Exhibit F attached hereto
and made a part hereof, except that Common Facilities, lighting in the
Building and Office Building Area shall be maintained for such
additional hours as, in Lessor's sole judgement, is necessary or
desirable to insure proper operating of the Building and Office Building
Area.
6. COMMENCEMENT DATE is the date of this Lease. RENT COMMENCEMENT DATE is
the date which is the earlier of (i) the date upon which Lessee, or
anyone claiming under or through Lessee, commences using the Premises
for the conduct of business, or (ii) the date which is ninety (90) days
after the date of this Lease.
7. DEMISED PREMISES OR PREMISES shall be deemed to be 16,779 gross rentable
square feet on the second (2nd) floor as shown on Exhibit A hereto,
which includes an allocable share of the Common Facilities as defined in
Article 42(b).
8. EXHIBITS shall be the following, attached to this Lease and incorporated
herein and made a part hereof.
Exhibit A Location of Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessor's Work
Exhibit C-1 Air Conditioning &
Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Tenant Estoppel Certificate
Exhibit G Commencement Date Agreement
Exhibit H Form of Letter of Credit
Exhibit I Exclusions from Operating Costs
9. EXPIRATION DATE shall be the last day of the month in which the day
before the ten (10) year anniversary of the Rent Commencement Date
occurs.
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10. FIXED BASIC RENT shall mean: FIVE MILLION SEVENTY-FIVE THOUSAND SIX
HUNDRED FORTY-SEVEN AND 50/100 DOLLARS ($5,075,647.50) for the Term
commencing on the Rent Commencement Date payable as follows:
Year Yearly Rate Monthly Installments
---- ------------- --------------------
1 $ 469,812.00 $ 39,151.00
2 $ 478,201.50 $ 39,850.13
3 $ 486,591.00 $ 40,549.25
4 $ 494,980.50 $ 41,248.38
5 $ 503,370.00 $ 41,947.50
6 $ 511,759.50 $ 42,646.63
7 $ 520,149.00 $ 43,345.75
8 $ 528,538.50 $ 44,044.88
9 $ 536,928.00 $ 44,744.00
10 $ 545,317.50 $ 45,443.13
11. LESSEE'S BROKER shall mean Xxxxxxxx Xxxx Company.
12. LESSEE'S PERCENTAGE shall be 7.80% subject to adjustment as provided in
the Lease.
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1.
14. PARKING SPACES shall mean a total of sixty-three (63) unassigned surface
parking spaces.
15. PERMITTED USE shall be general office use and for no other purpose.
16. SECURITY DEPOSIT shall be EIGHTY-FOUR THOUSAND FIVE HUNDRED NINETY-FIVE
AND 00/100 DOLLARS ($84,595.00)
17. TERM shall mean ten (10) years from the Rent Commencement Date, plus the
number of days, if any, to have the Lease expire on the last day of a
calendar month, unless extended pursuant to any option contained herein.
-- End of Preamble --
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W I T N E S S E T H
For and in consideration of the covenants herein contained, and
upon the terms and conditions herein set forth, Lessor and Lessee agree as
follows:
1. DESCRIPTION:
Lessor hereby leases to Lessee, and Lessee hereby hires from Lessor, the
Premises as defined in the Preamble which includes an allocable share of
the Common Facilities, as shown on the plan or plans, initialed by the
parties hereto, marked Exhibit A attached hereto and made part of this
Lease in the Building as defined in the Preamble, (hereinafter called
the "Building") which is situated on that certain parcel of land
(hereinafter called "Office Building Area") as described on Exhibit A-1
attached hereto and made part of this Lease, together, with the right to
use in common with other lessees of the Building, their invitees,
customers and employees, those public areas of the Common Facilities as
hereinafter defined.
2. TERM:
The Premises are leased for a term to commence on the Commencement Date,
and to end at 12:00 midnight on the Expiration Date, all as defined in
the Preamble.
3. BASIC RENT:
The Lessee shall pay to the Lessor during the Term, the Fixed Basic Rent
as defined in the Preamble (hereinafter called "Fixed Basic Rent")
payable in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts. The Fixed Basic Rent shall accrue at the Yearly Rate as
defined in the Preamble and shall be payable, in advance, on the first
day of each calendar month during the Term commencing on the Rent
Commencement Date at the Monthly Installments as defined in the
Preamble, except that a proportionately lesser sum may be paid for the
first and last months of the Term of this Lease if the Term commences on
a day other than the first day of the month, in accordance with the
provisions of this Lease herein set forth. Lessor acknowledges receipt
from Lessee of the first monthly installment by check, subject to
collection, for Fixed Basic Rent for the first month of the Lease Term.
Lessee shall pay Fixed Basic Rent, and any Additional Rent as
hereinafter provided, to Lessor at Lessor's above stated address, or at
such other place as Lessor may designate in writing, without demand and
without counterclaim, deduction or set off.
4. USE AND OCCUPANCY:
Lessee shall use and occupy the Premises for the Permitted Use as
defined in the Preamble.
Lessee hereby acknowledges "no smoking" is permitted in the Common
Facilities. Lessee shall use its best efforts to enforce Lessor's policy
prohibiting its employees, agents or invitees from smoking within the
Common Facilities including the areas outside of the Building's main
entrance.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:
(a) Lessee shall commit no act of waste and shall take good care of
the Premises and the fixtures and appurtenances therein, and
shall, in the use and occupancy of the Premises, conform to all
laws, orders and regulations of the federal, state and municipal
governments or any of their departments affecting the Premises
and with any and all environmental requirements resulting from
the Lessee's particular use of the Premises, this covenant to
survive the expiration or sooner termination of the Lease.
Notwithstanding anything to the contrary contained in this
Lease, Lessee shall not be required to make any repairs,
alterations or modifications to the Premises as a result of any
laws, orders and regulations of the federal, state and municipal
governments or any of their departments affecting the Premises
unless the need for
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such repairs, alterations or modifications arises from the
particular manner in which Lessee uses the Premises, and
repairs, alterations or modifications to the Premises as a
result of any laws, orders and regulations of the federal, state
and municipal governments or any of their departments affecting
the Premises which are required of all owners and tenants
generally, and do not arise from the particular manner in which
an owner or tenant uses its premises, shall be undertaken by and
at the sole cost and expense of Lessor and same may be included
in Operating Costs pursuant to Article 23 of this Lease. Lessor
shall, subject to the same being included in Operating Costs
(except as expressly excluded in the immediately preceding
sentence.), make all necessary repairs to the Premises, Common
Facilities and to the assigned parking areas, if any, except
where the repair has been made necessary by misuse or neglect by
Lessee or Lessee's agents, servants, visitors or licensees, in
which event Lessor shall nevertheless make the repair but Lessee
shall pay to Lessor, as Additional Rent, immediately upon
demand, the costs therefor. All improvements made by Lessee to
the Premises, which are so attached to the Premises, shall
become the property of Lessor upon installation. Not later than
the last day of the Term, Lessee shall, at Lessee's expense,
remove all Lessee's personal property and those improvements
made by Lessee which have not become the property of Lessor,
including trade fixtures, cabinetwork, movable paneling,
partitions and the like; repair all injury done by or in
connection with the installation or removal of said property and
improvements; and surrender the Premises in as good condition as
they were at the beginning of the Term, reasonable wear and
damage by fire, the elements, casualty or other cause not due to
the misuse or neglect by Lessee, Lessee's agents, servants,
visitors or licensees excepted and excluding maintenance and
repairs required to be undertaken by Lessor. All other property
of Lessee remaining on the Premises after the last day of the
Term of this Lease shall be conclusively deemed abandoned and
may be removed by Lessor, and Lessee shall reimburse Lessor for
the cost of such removal. Lessor may have any such property
stored at Lessee's risk and expense.
ENVIRONMENTAL
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee shall, at Lessee's
own expense, promptly comply with each and every federal, state,
county and municipal environmental law, ordinance, rule,
regulation, order, directive and requirement, now or hereafter
existing ("Environmental Laws"), applicable to the Premises,
Lessee, Lessee's operations at the Premises, or all of them,
except if there is any violation of Environmental Laws with
regard to the Premises existing at the date of this Lease,
Lessor shall comply therewith at its sole cost and expense,
which cost and expense shall not be included in Operating
Costs..
(c) ISRA COMPLIANCE. Lessee shall, at Lessee's own expense, comply
with the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 ET SEQ.,
the regulations promulgated thereunder and any amending and
successor legislation and regulations ("ISRA"), if and to the
extent the need for such compliance is triggered by Lessee
having become an Industrial Establishment (as defined in ISRA)
with respect to its use of the Premises.
(d) INFORMATION TO LESSOR. At no expense to Lessor, Lessee shall
promptly provide all information and sign all documents
requested by Lessor with respect to compliance with
Environmental Laws.
(e) LESSOR AUDIT. Lessee shall permit Lessor and its representatives
access to the Premises, from time to time, to conduct an
environmental assessment, investigation and sampling, all at
Lessor's own expense. If such assessment, investigation and
sampling reveal a violation of this provision, the cost shall be
borne by Lessee.
(f) LESSEE REMEDIATION. Should any assessment, investigation or
sampling reveal the existence of any spill, discharge or
placement of Contaminants in, on, under, or about, or migrating
from or onto the Premises, the Building or the Office Building
Area, as a result of the action or omission of Lessee or a
"Lessee Representative", then, in addition to being in default
under this Lease and Lessor having all rights available to
Lessor under this Lease and by law by reason of such default,
Lessee shall, at Lessee's own expense, in accordance with
Environmental Laws, undertake all action required by Lessor and
any governmental authority, including, without
4
limitation, promptly obtaining and delivering to Lessor an
unconditional No Further Action Letter. For purposes of this
Article, the term "Lessee's Representative" shall mean any
shareholder, officer, director, member, partner, employee,
agent, licensee, assignee, sublessee or invitee of Lessee, or
any third party for whom Lessee is legally responsible. In no
event shall any of Lessee's remedial action involve engineering
or institutional controls, a groundwater classification
exception area or well restriction area, and Lessee's remedial
action shall meet the most stringent published or unpublished
remediation standards for soil, surface water, groundwater and
drinking water. Promptly upon completion of all required
investigatory and remedial activities, Lessee shall, at Lessee's
own expense, to Lessor's satisfaction, restore the affected
areas of the Premises, the Building or the Office Building Area,
as the case may be, from any damage or condition caused by the
investigatory or remedial work.
(g) ENVIRONMENTAL QUESTIONNAIRE. Upon Lessor's request,
contemporaneously with the signing and delivery of this Lease,
and thereafter upon renewal of the lease, if at all, Lessee
shall complete, execute and deliver to Lessor an environmental
questionnaire in form and substance satisfactory to Lessor.
(h) ENVIRONMENTAL DOCUMENTS AND CONDITIONS. For purposes of this
Article, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the
Office Building Area, of which the Premises is a part, or its
environs, in the possession or under the control of Lessee,
including, without limitation, plans, reports, correspondence
and submissions. During the term of this Lease and subsequently,
promptly upon receipt by Lessee or Lessee's Representatives,
Lessee shall deliver to Lessor all Environmental Documents
concerning or generated by or on behalf of Lessee, whether
currently or hereafter existing. In addition, Lessee shall
promptly notify Lessor of any environmental condition of which
Lessee has knowledge, which may exist in, on, under, or about,
or may be migrating from or onto the Building or the Office
Building Area.
(i) LESSOR'S RIGHT TO PERFORM LESSEE'S OBLIGATIONS. Notwithstanding
anything to the contrary set forth in this Lease, in the event,
pursuant to this Lease, Lessee is required to undertake any
sampling, assessment, investigation or remediation with respect
to the Premises, the Building or the Office Building Area, as
the case may be, then, at Lessor's discretion, Lessor shall have
the right, if Lessee has failed to do so with reasonable
promptness upon notice to Lessee, from time to time, to perform
such activities at Lessee's expense, and all sums incurred by
Lessor shall be paid by Lessee, as Additional Rent, upon demand.
(j) INDEMNITY. Lessee shall indemnify, defend and hold harmless
Lessor, Lessor's officers, directors, shareholders, employees
and personal or legal representatives from and against any and
all claims, liabilities, losses, damages, penalties and costs,
foreseen or unforeseen, including, without limitation, counsel,
engineering and other professional or expert fees, which an
indemnified party may incur resulting directly or indirectly,
wholly or partly from Lessee's actions or omissions with regard
to Lessee's obligations under this Article.
Lessor shall indemnify, defend and hold harmless Lessee,
Lessee's officers, directors, shareholders, employees and
personal or legal representatives from and against any and all
claims, liabilities, losses, damages, penalties and costs,
foreseen or unforeseen, including, without limitation, counsel,
engineering and other professional or expert fees, which an
indemnified party may incur resulting directly or indirectly,
wholly or partly from Lessor's actions or omissions with regard
to Lessor's obligations under this Article. Any cost or expense
incurred by Lessor pursuant to this indemnity shall be excluded
from Operating Costs.
(k) SURVIVAL. This Article shall survive the expiration or earlier
termination of this lease. Lessee's failure to abide by the
terms of this Article shall be restrainable or enforceable, as
the case may be, by injunction.
(l) INTERPRETATION. The obligations imposed upon Lessee under
subparagraphs (a) through (j) above are in addition to and are
not intended to limit, but to expand upon, the obligations
imposed upon Lessee under this Article 5. As used in this
Article, the term "Contaminants" shall include, without
limitation, any regulated substance, toxic
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substance, hazardous substance, hazardous waste, pollution,
pollutant, contaminant, petroleum, asbestos or polychlorinated
biphenyls, as defined or referred to in any Environmental Laws.
Where a law or regulation defines any of these terms more
broadly then another, the broader definition shall apply.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
Lessee shall not, without first obtaining the written consent of Lessor,
make any structural or Building Systems alterations, additions or
improvements in, to or about the Premises. Building Systems shall mean
any structural, life safety, plumbing, electrical, heating, ventilation
or air conditioning system or its components. Lessee shall not, without
first obtaining the written consent of Lessor (which shall not be
unreasonably withheld or delayed) make any non-Building Systems
alterations, additions or improvements in, to or about the Premises.
Lessee may, upon notification to Lessor, perform minor cosmetic
improvements, such as painting and wallpapering, without prior consent
of Lessor.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:
Lessee shall not do or suffer anything to be done on the Premises which
will increase the rate of fire insurance on the Building.
8. ASSIGNMENT AND SUBLEASE:
Provided Lessee is not in default of any provisions of this Lease,
Lessee may assign or sublease the within Lease to any party subject to
the following:
a. In the event Lessee desires to assign this Lease or sublease all
or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be communicated
to the Lessor in writing no less than thirty (30) days prior to
the effective date of any such sublease or assignment, and,
prior to such effective date, the Lessor shall have the option,
exercisable in writing to the Lessee, to: (i) recapture in the
case of subletting, that portion of the Premises to be sublet or
all of the Premises in the case of an assignment ("Recapture
Space") so that such prospective sublessee or assignee shall
then become the lessee of Lessor hereunder, or (ii) recapture
the Recapture Space for Lessor's own use. In the event that
Lessor exercise its option to Recapture Space, the within Lessee
shall be fully released from any and all obligations hereunder
with respect to the Recapture Space and the Fixed Basic Rent and
Lessee's Percentage shall be adjusted appropriately. Lessor
shall advise Lessee in writing of Lessor's election with respect
to the Recapture Space within twenty (20) days after Lessor's
receipt of Lessee's notice of its intent to sublet or assign.
Notwithstanding the foregoing, Lessor shall have no right to
exercise its rights pursuant to clauses (i) or (ii) above if the
space that Lessee proposes to sublet is less than eighty percent
(80%) of the Premises and the term of such subletting, including
renewal options, if any, is to expire at any time prior to the
commencement of the last year of the Term.
b. In the event that the Lessor elects not to recapture the Lease
or relet the Premises as hereinabove provided or in the event
the proposed sublease falls within the provisions of the last
sentence of sub section a. above, the Lessee may assign this
Lease or sublet the whole or any portion of the Premises,
subject to the Lessor's prior written consent, which consent
shall not be unreasonably withheld and shall be deemed to have
been given if Lessor does not advise Lessee otherwise in writing
not less than twenty (20) days after Lessor's receipt of
Lessee's notice of its intent to sublease or assign, on the
basis of the following terms and conditions:
i. The Lessee shall provide to the Lessor the name and
address of the assignee or sublessee.
ii. The assignee or sublessee shall assume, by written
instrument, all of the obligations of this Lease, and a
copy of such assumption agreement shall be furnished to
the Lessor within ten (10) days of its execution. Any
sublease
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shall expressly acknowledge that said sublessee's rights
against Lessor shall be no greater than those of Lessee.
Lessee further agrees that notwithstanding any such
subletting, no other and further subletting of the
Premises by Lessee or any person claiming through or
under Lessee shall or will be made except upon
compliance with and subject to the provisions of this
Article 8.
iii. Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate, and that in the
event of default by Lessee under this Lease, Lessor may,
at its option, take over all of the right, title and
interest of Lessee, as sublessor, under such sublease,
and such sublessee shall, at Lessor's option, attorn to
Lessor pursuant to the then executory provisions of such
sublease, except that Lessor shall not (i) be liable for
any previous act or omission of Lessee under such
sublease or, (ii) be subject to any offset not expressly
provided in such sublease which theretofore accrued to
such sublease to which Lessor has not specifically
consented in writing or by any previous prepayment of
more than one month's rent.
iv. The Lessee and each assignee shall be and remain liable
for the observance of all the covenants and provisions
of this Lease, including, but not limited to, the
payment of Fixed Basic Rent and Additional Rent reserved
herein, through the entire Term of this Lease, as the
same may be renewed, extended or otherwise modified.
v. The Lessee and any assignee shall promptly pay to Lessor
fifty percent (50%) of any consideration received for
any assignment and/or fifty percent (50%) of the rent,
as and when received, in excess of the Rent required to
be paid by Lessee for the area sublet computed on the
basis of an average square foot rent for the gross
square footage Lessee has leased after deducting
therefrom Lessee's actual and reasonable expenses in
connection with such sublease or assignment.
vi. In any event, the acceptance by the Lessor of any rent
from the assignee or from any of the subtenants or the
failure of the Lessor to insist upon a strict
performance of any of the terms, conditions and
covenants herein shall not release the Lessee herein,
nor any assignee assuming this Lease, from any and all
of the obligations herein during and for the entire Term
of this Lease.
vii. In Lessor's reasonable judgment, the proposed assignee
or subtenant is engaged in a business or activity, and
the Premises, or the relevant part thereof, will be used
in a manner, which (a) is in keeping with the then
standard of the Building and (b) is limited to the use
of the Premises as general offices.
viii. The proposed assignee or subtenant is not then an
occupant of any part of the Building or any other
building then owned by Lessor or its affiliates within
the Xxxx-Xxxx Business Campus and Lessor has space
available for leasing reasonably equivalent to the
Premises, in the case of an assignment, or the space
proposed to be sublet, in the case of a subletting. For
the purposes hereof, the "Xxxx-Xxxx Business Campus"
shall mean, Two Hilton Court, One Sylvan Way, Two Xxxxxx
Way, 4 Campus Drive, 0 Xxxxxxxx Xxxxx, 0 Xxxxxx Xxx, 6
Campus Drive, 600 Parsippany Road, 7 Campus Drive, 0
Xxxxxx Xxx, xxx 0 Xxxxxx Xxxxx.
ix. The proposed assignee or subtenant is not an entity or a
person with whom Lessor is or has been, within the
preceding sixty (60) day period, engaged in active
negotiations to lease space in the Building or any other
building owned by Lessor or its affiliates within the
Xxxx-Xxxx Business Campus and Lessor has space available
for leasing reasonably equivalent to the Premises, in
the case of an assignment, or the space proposed to be
sublet in case of a subletting.
x. There shall not be more than three (3) subtenants in the
Premises.
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xi. Lessee shall not publicly advertise the subtenancy for
less than the then current market rent per rentable
square foot for the Premises as though the Premises were
vacant; provided that nothing contained herein shall
prohibit subleases for less than the then current market
rent.
xii. Lessee shall not have (a) publicly advertised the
availability of the Premises without prior notice to and
approval by Lessor (which approval shall not be
unreasonably withheld or delayed), nor shall any
advertisement state the name (as distinguished from the
address) of the Building or (b) listed the Premises for
subletting or assignment other than with a broker, agent
or representative who waives any entitlement to a
commission or other fee from Lessor in the event of a
recapturing of the Premises;
xiii. The proposed occupancy shall not, in Lessor's reasonable
opinion, exceed the parking allocation presently
provided for in this Lease;
xiv. The proposed assignee or subtenant shall only use the
Premises for general offices and shall not be engaged in
any of the following:
(a) educational, including but not limited to,
instructional facilities and correspondence
schools;
(b) employment agencies;
(c) model agencies;
(d) photographic studios or laboratories;
(e) spas, health, physical fitness or exercise
salons;
(f) small loan offices;
(g) real estate brokerage or real estate sales
offices open to the general public or
construction offices;
(h) medical or dental facilities, including
professional offices, treatment facilities,
dispensaries or laboratories;
(i) federal, state or local government offices;
(j) so-called boiler room operations;
(k) retail stock brokerage offices; and
(l) religious organizations making facilities
available to congregations for uses other than
business purposes; and
(m) executive office suite use.
xv. The proposed assignee or subtenant shall not be
entitled, directly or indirectly, to diplomatic or
sovereign immunity and shall be subject to the service
of process in, and the jurisdiction of, the state courts
of New Jersey.
xvi. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for each
request for consent to any sublet or assignment prior to
its consideration of the same. Unless it is judicially
determined that Lessor has acted in bad faith, Lessee
acknowledges that its sole remedy with respect to any
assertion that Lessor's failure to consent to any sublet
or assignment is unreasonable shall be the remedy of
specific performance and Lessee shall have no other
claim or cause of action against Lessor as a result of
Lessor's actions in refusing to consent thereto.
c. If Lessee is a corporation other than a corporation whose stock
is listed and traded on a nationally recognized stock exchange,
the provisions of Sub-section a. shall apply to a transfer
(however accomplished, whether in a single transaction or in a
series of related or unrelated transactions) of stock (or any
other mechanism such as, by way of example, the issuance of
additional stock, a stock voting agreement or change in
class(es) of stock) which results in a change of control of
Lessee as if such transfer of stock (or other mechanism) which
results in a change of control of Lessee were an assignment of
this Lease, and if Lessee is a partnership or joint venture,
said provisions shall apply with respect to a transfer (by one
or more transfers) of an interest in the distributions of
profits and losses of such partnership or joint venture (or
other mechanism, such as, by way of example, the creation of
additional general partnership or limited partnership interests)
which results in a change of control of such a partnership or
joint venture, as if such transfer of an interest in the
distributions of profits and losses of such partnership or joint
venture which results in
8
a change of control of such partnership or joint venture were an
assignment of this Lease; provided, however: (A) said provisions
of Sub-section a. of this Article 7 shall not apply to
transactions with a corporation into or with which Lessee is
merged or consolidated or to which all or substantially all of
Lessee's assets are transferred or to any corporation which
controls or is controlled by Lessee or is under common control
with Lessee (any of such transactions, a "Capital Transaction"),
(B) Lessor's consent shall not be required with respect to a
Capital Transaction in which (i) the successor to Lessee has the
financial ability, in Lessor's reasonable discretion, to meet
Lessee's obligations under the Lease, and (ii) proof
satisfactory to Lessor of such financial ability to meet
Lessee's obligations shall have been delivered to Lessor at
least 10 days prior to the effective date of any such
transaction.
d. In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation of law to
any trustee, receiver, or other representative or agent of
Lessee, or to Lessee as a debtor in possession, and subsequently
any or all of Lessee's interest in the Premises and/or this
Lease is offered or to be offered by Lessee or any trustee,
receiver, or other representative or agent of Lessee as to its
estate or property (such person, firm or entity being
hereinafter referred to as the "Grantor"), for assignment,
conveyance, lease, or other disposition to a person, firm or
entity other than Lessor (each such transaction being
hereinafter referred to as a "Disposition"), it is agreed that
Lessor has and shall have a right of first refusal to purchase,
take, or otherwise acquire, the same upon the same terms and
conditions as the Grantor thereof shall accept upon such
Disposition to such other person, firm, or entity; and as to
each such Disposition the Grantor shall give written notice to
Lessor in reasonable detail of all of the terms and conditions
of such Disposition within twenty (20) days next following its
determination to accept the same but prior to accepting the
same, and Grantor shall not make the Disposition until and
unless Lessor has failed or refused to accept such right of
first refusal as to the Disposition, as set forth herein.
Lessor shall have sixty (60) days next following its receipt of
the written notice as to such Disposition in which to exercise
the option to acquire Lessee's interest by such Disposition, and
the exercise of the option by Lessor shall be effected by notice
to that effect sent to the Grantor; but nothing herein shall
require Lessor to accept a particular Disposition or any
Disposition, nor does the rejection of any one such offer of
first refusal constitute a waiver or release of the obligation
of the Grantor to submit other offers hereunder to Lessor. In
the event Lessor accept such offer of first refusal, the
transaction shall be consummated pursuant to the terms and
conditions of the Disposition described in the notice to Lessor.
In the event Lessor rejects such offer of first refusal, Grantor
may consummate the Disposition with such other person, firm, or
entity; but any decrease in price of more than two percent (2%)
of the price sought from Lessor or any change in the terms of
payment for such Disposition shall constitute a new transaction
requiring a further option of first refusal to be given to
Lessor hereunder.
e. Without limiting any of the provisions of Articles 12 and 13, if
pursuant to the Federal Bankruptcy Code (herein referred to as
the "Code"), or any similar law hereafter enacted having the
same general purpose, Lessee is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease,
adequate assurance of future performance by an assignee
expressly permitted under such Code shall be deemed to mean the
deposit of cash security in an amount equal to the sum of one
year's Fixed Basic Rent plus an amount equal to the Additional
Rent for the calendar year preceding the year in which such
assignment is intended to become effective, which deposit shall
be held by Lessor for the balance of the Term, without interest,
as security for the full performance of all of Lessee's
obligations under this Lease, to be held and applied in the
manner specified for security in Article 16.
f. Except as specifically set forth above, no portion of the
Premises or of Lessee's interest in this Lease may be acquired
by any other person or entity, whether by assignment, mortgage,
sublease, transfer, operation of law or act of the Lessee, nor
shall Lessee pledge its interest in this Lease or in any
security deposit required hereunder.
9
9. COMPLIANCE WITH RULES AND REGULATIONS:
Lessee shall observe and comply with the rules and regulations
hereinafter set forth in Exhibit B attached hereto and made a part
hereof and with such further reasonable rules and regulations as Lessor
may prescribe, on written notice to the Lessee, for the safety, care and
cleanliness of the Building and the comfort, quiet and convenience of
other occupants of the Building. Lessee shall not place a load upon any
floor of the Premises exceeding the floor load per square foot area
which it was designed to carry and which is allowed by law. Lessor
reserves the right to prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be
placed and maintained by Lessee, at Lessee's expense, in settings
sufficient, in Lessor's judgement, to absorb and prevent vibration,
noise and annoyance.
10. DAMAGES TO BUILDING:
If the Building is damaged by fire or any other cause to such extent the
cost of restoration, as reasonably estimated by Lessor, will equal or
exceed twenty-five percent (25%) of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the
damage, then Lessor may, no later than the sixtieth (60th) day following
the date of damage, give Lessee a notice of election to terminate this
Lease, or if the cost of restoration will equal or exceed fifty percent
(50%) of such replacement value and if the Premises shall not be
reasonably usable for the purpose for which they are leased hereunder,
or if restoration of the damage will require more than one hundred
eighty (180) days to complete or if such damage is not fully repaired
and reasonable access to the Premises restored within one hundred eighty
(180) days from the date of damage, then, in any such event, Lessee may,
no later than the sixtieth (60th) day following the date of damage or
following the end of said one hundred eighty (180) day period, give
Lessor a notice of election to terminate this Lease. In either said
event of election, this Lease shall be deemed to terminate on the
thirtieth (30th) day after the giving of said notice, and Lessee shall
surrender possession of the Premises within a reasonable time
thereafter, and the Fixed Basic Rent, and any Additional Rent, shall be
apportioned as of the date of said casualty and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date shall be repaid to
Lessee. If the cost of restoration or condition of the Premises shall
not entitle Lessor or Lessee to terminate this Lease, or if, despite the
cost or such condition, neither Lessor nor Lessee elects to terminate
this Lease within the periods provided above, Lessor shall restore the
Building and the Premises with reasonable promptness, subject to Force
Majeure, and Lessee shall have no right to terminate this Lease, except
as set forth above. Lessor need not restore fixtures and improvements
owned by Lessee.
In any case in which use of the Premises is affected by any damage to
the Building, there shall be either an abatement or an equitable
reduction in Fixed Basic Rent, depending on the period for which and the
extent to which the Premises are not reasonably usable for the purpose
for which they are leased hereunder. The words "restoration" and
"restore" as used in this Article 10 shall include repairs. If the
damage results from the fault of the Lessee, Lessee's agents, servants,
visitors or licensees, Lessee shall not be entitled to any abatement or
reduction in Fixed Basic Rent, except to the extent of any rent
insurance received by Lessor.
11. EMINENT DOMAIN:
If Lessee's use of the Premises is materially affected due to the taking
by eminent domain of (a) the Premises or any part thereof or any estate
therein; or (b) any other part of the Building; then, in either event,
this Lease shall terminate on the date when title vests pursuant to such
taking. The Fixed Basic Rent, and any Additional Rent, shall be
apportioned as of said termination date and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date, shall be repaid to
Lessee. Lessee shall not be entitled to any part of the award for such
taking or any payment in lieu thereof, but Lessee may file a separate
claim for any taking of fixtures and improvements owned by Lessee which
have not become the Lessor's property, and for moving expenses, provided
the same shall, in no way, affect or diminish Lessor's award. In the
event of a partial taking which does not effect a termination of this
Lease but does deprive Lessee of the use of a portion of the Premises,
there shall either be an abatement or an equitable reduction of the
Fixed Basic Rent, and an equitable
10
adjustment reducing the Base Period Costs as hereinafter defined
depending on the period for which and the extent to which the Premises
so taken are not reasonably usable for the purpose for which they are
leased hereunder.
12. INSOLVENCY OF LESSEE:
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee, or, (b) a general assignment
by Lessee for the benefit of creditors, or, (c) any action taken or
suffered by Lessee under any insolvency or bankruptcy act, shall
constitute a default of this Lease by Lessee, and Lessor may terminate
this Lease forthwith and upon notice of such termination Lessee's right
to possession of the Premises shall cease, and Lessee shall then quit
and surrender the Premises to Lessor but Lessee shall remain liable as
hereinafter provided in Article 14 hereof.
13. LESSOR'S REMEDIES ON DEFAULT:
If Lessee defaults in the payment of Fixed Basic Rent, or any Additional
Rent, or defaults in the performance of any of the other covenants and
conditions hereof or permits the Premises to become deserted, abandoned
or vacated, Lessor may give Lessee notice of such default, and if Lessee
does not cure any Fixed Basic Rent or Additional Rent default within ten
(10) days or other default within thirty (30) days after giving of such
notice (or if such other default is of such nature that it cannot be
completely cured within such period, if Lessee does not commence such
curing within such thirty (30) day period and thereafter proceed with
reasonable diligence and in good faith to cure such default), then
Lessor may terminate this Lease on not less than ten (10) days notice to
Lessee, and on the date specified in said notice, Lessee's right to
possession of the Premises shall cease but Lessee shall remain liable as
hereinafter provided. If this Lease shall have been so terminated by
Lessor pursuant to Articles 12 or 13 hereof, Lessor may at any time
thereafter resume possession of the Premises by any lawful means and
remove Lessee or other occupants and their effects. The unsuccessful
party shall pay tothe prevailing party, on demand, such expenses asthe
prevailing party may incur, including, without limitation, court costs
and reasonable attorney's fees and disbursements, in any proceeding
relating to this Lease. Notwithstanding the foregoing, Lessee's vacating
of the Premises shall not be deemed a default under this Lease, provided
that at the time of such vacating of the Premises, Lessee shall deliver
to Lessor a certification of the Chief Executive Officer or Chief
Financial Officer of Lessee certifying that Lessee has the ability to
meet its financial obligations under this Lease.
14. DEFICIENCY:
In any case where Lessor has recovered possession of the Premises by
reason of Lessee's default, Lessor may, at Lessor's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof,
as agent of Lessee or otherwise, for a term or terms to expire prior to,
at the same time as or subsequent to, the original Expiration Date of
this Lease, at Lessor's option and receive the rent therefor. Rent so
received shall be applied first to the payment of such reasonable
expenses as Lessor may have incurred in connection with the recovery of
possession, redecorating, altering, dividing, consolidating with other
adjoining premises, or otherwise changing or preparing for reletting,
and the reletting, including brokerage and reasonable attorney's fees,
and then to the payment of damages in amounts equal to the Fixed Basic
Rent and Additional Rent hereunder and to the costs and expenses of
performance of the other covenants of Lessee as herein provided. Lessee
agrees, in any such case, whether or not Lessor has relet, to pay to
Lessor damages equal to the Fixed Basic Rent and Additional Rent from
the date of such default to the date of expiration of the term demised
and other sums herein agreed to be paid by Lessee, less the net proceeds
of the reletting, if any, received by Lessor during the remainder of the
unexpired term hereof, as ascertained from time to time, and the same
shall be payable by Lessee on the several rent days above specified.
Lessee shall not be entitled to any surplus accruing as a result of any
such reletting. In reletting the Premises as aforesaid, Lessor may grant
commercially reasonable rent concessions, and Lessee shall not be
credited therewith. No such reletting shall constitute a surrender and
acceptance or be deemed evidence thereof. If Lessor elects, pursuant
hereto, actually to occupy and use the Premises or
11
any part thereof during any part of the balance of the Term as
originally fixed or since extended, there shall be allowed against
Lessee's obligation for rent or damages as herein defined, during the
period of Lessor's occupancy, the reasonable value of such occupancy,
not to exceed, in any event, the Fixed Basic Rent and Additional Rent
herein reserved and such occupancy shall not be construed as a release
of Lessee's liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option,
and at any time thereafter, and without notice or other action by
Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from
Lessee, as Damages for such breach, in addition to such other sums
herein agreed to be paid by Lessee, to the date of re-entry, expiration
and/or dispossess, an amount equal to the difference between the Fixed
Basic Rent and Additional Rent reserved in this Lease from the date of
such default to the date of Expiration of the original Term demised and
the then fair and reasonable rental value of the Premises for the same
period. Said Damages shall become due and payable to Lessor immediately
upon such breach of this Lease and without regard to whether this Lease
be terminated or not, and if this Lease be terminated, without regard to
the manner in which it is terminated. In the computation of such
Damages, the difference between an installment of Fixed Basic Rent and
Additional Rent thereafter becoming due and the fair and reasonable
rental value of the Premises for the period for which such installment
was payable shall be discounted to the date of such default at the rate
of not more than six percent (6%) per annum.
Lessee hereby waives all right of redemption to which Lessee or any
person under Lessee might be entitled by any law now or hereafter in
force.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
15. SUBORDINATION OF LEASE:
This Lease shall, at Lessor's option, or at the option of any holder of
any underlying lease or holder of any mortgages or trust deed, be
subject and subordinate to any such underlying leases and to any such
mortgages or trust deed which may now or hereafter affect the real
property of which the Premises form a part, and also to all renewals,
modifications, consolidations and replacements of said underlying leases
and said mortgages or trust deed provided, that Lessor shall use
commercially reasonable efforts to obtain a non-disturbance agreement
from the holder of any such underlying lease, mortgage or trust deed.
Any reasonable expenses charged by the mortgagee in connection with the
obtaining of the aforesaid agreement shall be paid by Lessee. Although
no instrument or act on the part of Lessee shall be necessary to
effectuate such subordination, Lessee will, nevertheless, execute and
deliver such further instruments confirming such subordination of this
Lease as may be desired by the holders of said mortgages or trust deed
or by any of the lessor's under such underlying leases. Lessee hereby
appoints Lessor attorney-in-fact, irrevocably, to execute and deliver
any such instrument for Lessee. If any underlying lease to which this
Lease is subject terminates, Lessee shall, on timely request, attorn to
the owner of the reversion.
Lessor represents that there currently is no mortgage encumbering the
Premises.
16. SECURITY DEPOSIT:
Lessee shall deposit with Lessor on the signing of this Lease, the
Security Deposit as defined in the Preamble for the full and faithful
performance of Lessee's obligations under this Lease, including without
limitation, the surrender of possession of the Premises to Lessor as
herein provided. If Lessor applies any part of said Security Deposit to
cure any default of Lessee, Lessee shall, on demand, deposit with Lessor
the amount so applied so that Lessor shall have the full Security
Deposit on hand at all times during the Term of this Lease. In the event
of a bona fide sale of the Building, subject to this Lease, Lessor shall
have the right to transfer the Security Deposit to the vendee, and
Lessor shall be considered released by Lessee from all liability for the
return of the Security Deposit; and Lessee agrees to look solely to the
new lessor for the return of the Security Deposit, and it is agreed that
this shall apply to every transfer or assignment made of the Security
Deposit to the new lessor. Provided this Lease is not in default, the
Security Deposit (less any portions thereof used, applied or retained by
Lessor in accordance with the provisions of this Article 16), shall be
returned to Lessee after
12
the expiration or sooner termination of this Lease and after delivery of
the entire Premises to Lessor in accordance with the provisions of this
Lease. Lessee covenants that it will not assign or encumber or attempt
to assign or encumber the Security Deposit and Lessor shall not be bound
by any such assignment, encumbrance or attempt thereof.
In the event of the insolvency of Lessee, or in the event a petition is
filed by or against Lessee under any chapter of the bankruptcy laws of
the State of New Jersey or the United States of America, then in such
event, Lessor may require the Lessee to deposit additional security in
an amount which in Lessor's sole judgement would be sufficient to
adequately assure Lessee's performance of all of its obligations under
this Lease including all payments subsequently accruing. Failure of
Lessee to deposit the security required by this Article 16 within ten
(10) days after Lessor's written demand shall constitute a material
breach of this Lease by Lessee.
Lessee may deliver to Lessor after the date hereof, in lieu of the cash
deposit set forth in this Article, an irrevocable negotiable letter of
credit in amount set forth in Paragraph 16 of the Preamble and
substantially in the form annexed hereto as Exhibit H. Said letter of
credit shall be for a term of not less than one (1) year and shall be
renewed by Lessee (without notice from Lessor) no later than forty-five
(45) days prior to its expiration, and the expiration of each
replacement thereof, until Lessor shall be required to return the
security to Lessee pursuant to the terms of this Lease but in no event
earlier than ninety (90) days after the Expiration Date, and each such
renewal letter of credit shall be delivered to Lessor no later than
forty-five (45) days prior to the expiration of the letter of credit
then held by Lessor. If any portion of the security deposit shall be
utilized by Lessor in the manner permitted by this Lease, Lessee shall,
within five (5) days after request by Lessor, replenish the security
account by depositing with Lessor, in cash or by letter of credit, an
amount equal to that utilized by Lessor. Failure of Lessee to comply
strictly with the provisions of this Article shall constitute a material
breach of this Lease and Lessor shall be entitled to present the letter
of credit held by for payment (without notice to Lessee). If the cash
security is converted into a letter of credit, the provisions with
respect to letters of credit shall apply (with the necessary changes in
Points of detail) to such letter of credit deposit. In the event of a
bank failure or insolvency affecting the letter of credit, Lessee shall
replace same within twenty (20) days after being requested to do so by
Lessor.
17. RIGHT TO CURE LESSEE'S BREACH:
If Lessee breaches any covenant or condition of this Lease, Lessor may,
on reasonable notice to Lessee (except that no notice need be given in
case of emergency), cure such breach at the expense of Lessee and the
reasonable amount of all expenses, including attorney's fees, incurred
by Lessor in so doing (whether paid by Lessor or not) shall be deemed
Additional Rent payable on demand.
18. MECHANIC'S LIENS:
Lessee shall, within fifteen (15) days after notice from Lessor,
discharge or satisfy by bonding or otherwise any mechanic liens for
materials or labor claimed to have been furnished to the Premises on
Lessee's behalf.
19. RIGHT TO INSPECT AND REPAIR:
Lessor may enter the Premises but shall not be obligated to do so
(except as required by any specific provision of this Lease) at any
reasonable time on reasonable notice to Lessee (except that no notice
need be given in case of emergency), in such a manner and at such times
as to minimize interference with Lessee's business, for the purpose of
inspection or the making of such repairs, replacement or additions in,
to, on and about the Premises or the Building, as Lessor deems necessary
or desirable. Lessee shall have no claims or cause of action against
Lessor by reason thereof. In no event shall Lessee have any claim
against Lessor for interruption of Lessee's business, however occurring,
including but not limited to that arising from the negligence of Lessor,
its agents, servants or invitees, or from defects, errors or omissions
in the construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof.
13
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:
Subject to intervening laws, ordinances, regulations and executive
orders, Lessor agrees to furnish, except on holidays, as set forth on
Exhibit E attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached hereto
and made a part hereof, and subject to the conditions therein
stated. Except as set forth on Exhibit D, Lessee shall pay the
cost of all other cleaning services required by Lessee.
b. Heating, ventilating and air conditioning (herein "HVAC") as
appropriate for the season, and as set forth on Exhibit C-1,
attached hereto and made a part hereof, together with Common
Facilities lighting and electric energy all during Building
Hours, as defined in the Preamble.
c. Cold and hot water for drinking and lavatory purposes.
d. Elevator service during Building Hours (if the Building contains
an elevator or elevators for the use of the occupants thereof).
e. Restroom supplies and exterior window cleaning when reasonably
required.
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC) or
D or any other provision of this Lease, Lessor shall not be
liable for failure to furnish any of the aforesaid services when
such failure is due to Force Majeure, as hereinafter defined.
Lessor shall not be liable, under any circumstances, including,
but not limited to, that arising from the negligence of Lessor,
its agents, servants or invitees, or from defects, errors or
omissions in the construction or design of the Premises and/or
the Building, including the structural and non-structural
portions thereof, for loss of or injury to Lessee or to
property, however occurring, through or in connection with or
incidental to the furnishings of, or failure to furnish, any of
the aforesaid services or for any interruption to Lessee's
business, however occurring.
21. INTERRUPTION OF SERVICES OR USE:
Interruption or curtailment of any service maintained in the Building or
at the Office Building Area, if caused by Force Majeure, as hereinafter
defined, shall not entitle Lessee to any claim against Lessor or to any
abatement in rent, and shall not constitute a constructive or partial
eviction, unless Lessor fails to take measures as may be reasonable
under the circumstances to restore the service without undue delay. If
the Premises are rendered untenantable in whole or in part, for a period
of five (5) consecutive business days, by the making of repairs,
replacements or additions, other than those made with Lessee's consent
or caused by misuse or neglect by Lessee, or Lessee's agents, servants,
visitors or licensees, there shall be a proportionate abatement of Rent
from and after said fifth (5th) consecutive business day and continuing
for the period of such untenantability. In no event, shall Lessee be
entitled to claim a constructive eviction from the Premises unless
Lessee shall first have notified Lessor in writing of the condition or
conditions giving rise thereto, and if the complaints be justified,
unless Lessor shall have failed, within a reasonable time after receipt
of such notice, to remedy, or commence and proceed with due diligence to
remedy such condition or conditions, all subject to Force Majeure as
hereinafter defined.
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
The cost of electric current which is supplied by the Lessor for use by
the Lessee in the Premises, other than for heating or air conditioning
purposes, shall be reimbursed to the Lessor at terms, classification and
rates normally charged by the public utilities corporation serving that
part of the municipality where the subject Premises are located.
a. From and after the Commencement Date, Lessee agrees to pay as
Additional Rent an estimated electrical charge of $.10 per
square foot per month, payable on the first day
14
of each and every month, until such time as an electrical survey
can be performed pursuant to Article 22(b) below.
b. Lessee agrees that an independent electrical engineering
consultant shall make a survey of electric power demand of the
electric lighting fixtures and the electric equipment of Lessee
used in the Premises to determine the average monthly electric
consumption thereof, and the costs of said survey shall be borne
by Lessee but not in excess of $350.00. The findings of said
consultant as to the average monthly electric consumption of
Lessee shall, unless objected to by Lessee within forty-five
(45) days, be conclusive and binding on Lessor and Lessee. After
Lessor's consultant has submitted its report, Lessee shall pay
to Lessor, within ten (10) days after demand therefor by Lessor,
the amount (based on the monthly consumption found by such
consultant) as owing from the Lease Term's Commencement Date,
and the then expired months, to include the then current month
and thereafter adjusted for the estimated electrical charges
already paid pursuant to Article 22(a), on the first day of
every month, in advance, the amount set forth as the monthly
consumption in said report. Said amounts shall be treated as
Additional Rent due hereunder. Proportionate sums shall be
payable for periods of less than a full month if the Term
commences or ends on any other than the first or last day of the
month. If Lessee objects to said findings, Lessee shall
nevertheless pay and continue to pay the amount determined by
Lessor's consultant until the issue is finally resolved, but
Lessee may, at its expense, seek the services of an independent
electrical consultant who shall make a survey as provided above.
If Lessor's and Lessee's consultant cannot agree as to Lessee's
consumption within thirty (30) days of Lessee's consultant's
findings either Lessor or Lessee may request the American
Arbitration Association in Somerset, New Jersey to appoint an
electrical engineering consultant whose decision shall be final
and binding on Lessor and Lessee, and whose cost shall be shared
equally. Upon the issue being finally resolved, any overpayment
made by Lessee shall be promptly refunded.
c. In the event that there shall be an increase or decrease in the
rate schedule (including surcharges or demand adjustments), of
the public utility for the supply of Building Standard Office
Electrical Service, or the imposition of any tax with respect to
such service or increase in any such tax following the Lease
Term's commencement, the Additional Rent payable hereunder shall
be adjusted equitably to reflect the increase or decrease in
rate or imposition or increase in the aforesaid tax. All
computations shall be made on the basis of Lessee's surveyed
usage as if a meter exclusively measuring such usage to the
Premises was in place.
d. Lessee covenants that it shall notify Lessor immediately upon
the introduction of any office equipment or lighting different
from that on the Premises as of Lessor's electrical survey or in
addition to the aforesaid equipment or lighting on the Premises
as of said survey. The introduction of any new or different
equipment or lighting shall be cause for, at Lessor's election,
a resurveying of the Premises at Lessee's expense. Lessor
reserves the right to inspect the Premises to insure compliance
with this provision.
x. Xxxxxx shall not be liable in any way to Lessee for any loss,
damage or expense which Lessee may sustain or incur as a result
of any failure, defect or change in the quantity or character of
electrical energy available for redistribution to the Premises
pursuant to this Article 22 nor for any interruption in the
supply, and Lessee agrees that such supply may be interrupted
for inspection, repairs and replacement and in emergencies. In
any event, the full measure of Lessor's liability for any
interruption in the supply due to Lessor's acts or omissions
shall be an abatement of Fixed Basic Rent and Additional Rent,
unless Lessor fails to take such measures as may be reasonable
under the circumstances to restore such service without undue
delay. In no event shall Lessor be liable for any business
interruption suffered by Lessee.
x. Xxxxxx, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required
in the Premises. Lessee, however, shall have the right to
furnish and/or install any or all of the items mentioned in this
Article 22(f).
g. Lessee's use of electrical service as contemplated herein shall
be during Building Hours, and any use in excess of said Building
Hours shall result in an adjustment as set forth in Article
22(a) hereof to reflect such additional consumption.
15
23. ADDITIONAL RENT:
It is expressly agreed that Lessee will pay in addition to the Fixed
Basic Rent provided in Article 3 hereof, an Additional Rent to cover
Lessee's Percentage as defined in the Preamble, of the increased cost to
Lessor, for each of the categories enumerated herein, over the "Base
Period Costs", as defined in the Preamble for said categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred for
the Building in which the Premises are located and Office
Building Area for any Lease Year or Partial Lease Year during
the Lease Term shall be greater than the Base Operating Costs
(adjusted proportionately for periods less than a Lease Year),
then Lessee shall pay to Lessor, as Additional Rent, Lessee's
Percentage of all such excess Operating Costs. Operating Costs
shall include, by way of illustration and not of limitation:
personal property taxes; management fees; labor, including all
wages and salaries; social security taxes, and other taxes which
may be levied against Lessor upon such wages and salaries;
supplies; repairs and maintenance; maintenance and service
contracts; painting; wall and window washing; laundry and towel
service; tools and equipment (which are not required to be
capitalized for federal income tax purposes); fire and other
insurance; trash removal; lawn care; snow removal and all other
items properly constituting direct operating costs according to
standard accounting practices (hereinafter collectively referred
to as the "Operating Costs"), but not including any of the
exclusions from Operating Costs set forth on Exhibit I attached
hereto.
b. FUEL, UTILITIES AND ELECTRIC COST ESCALATION (hereinafter
referred to as "Utility and Energy Costs") - If the Utility and
Energy Costs, including any fuel surcharges or adjustments with
respect thereto, incurred for water, sewer, gas, electric, other
utilities and heating, ventilating and air conditioning for the
Building, to include all leased and leasable areas (not
separately billed or metered within the Building), and Common
Facilities electric, lighting, water, sewer and other utilities
for the Building and Office Building Area, for any Lease Year or
Partial Lease Year, during the Term, shall be greater than the
Base Utility and Energy Costs (adjusted proportionately for
periods less than a Lease Year), then Lessee shall pay to Lessor
as Additional Rent, Lessee's Percentage of all such excess
Utility and Energy Costs. As used in this Article 23, the Base
Utility and Energy Costs shall be as defined in the Preamble.
c. TAX ESCALATION -- If the Real Estate Taxes for the Building and
Office Building Area at which the Premises are located for any
Lease Year or Partial Lease Year, during the Lease Term, shall
be greater than the Base Real Estate Taxes (adjusted
proportionately for periods less than a Lease Year), then
provided that such increase in Real Estate Taxes is not the
result of expansion or addition to the Building and the Office
Building Area at which the Premises are located, Lessee shall
pay to Lessor as Additional Rent, Lessee's Percentage as
hereinafter defined, of all such excess Real Estate Taxes.
Lessor represents to Lessee that the Building and Office
Building Area at which the Premises are located are assessed for
Real Estate Tax purposes as of the date of this Lease as fully
completed.
As used in this Article 23(c), the words and terms which follow
mean and include the following:
i. "Base Real Estate Taxes" shall be as defined in the
Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office
Building Area, or upon the rent, as such, payable to the
Lessor, including, but not limited to, real estate,
city, county, village, school and transit taxes, or
taxes, assessments, or charges levied, imposed or
assessed against the Building and Office Building Area
by any other taxing authority, whether general or
specific, ordinary or extraordinary, foreseen or
unforeseen. If due to a future change in the method of
taxation, any franchise, income or profit tax shall be
levied against Lessor in substitution for, or in lieu
of, or in addition to, any tax which would otherwise
constitute a Real Estate Tax, such franchise, income or
profit tax shall be
16
deemed to be a Real Estate Tax for the purposes hereof;
conversely, any additional real estate tax hereafter
imposed in substitution for, or in lieu of, any
franchise, income or profit tax (which is not in
substitution for, or in lieu of, or in addition to, a
Real Estate Tax as hereinbefore provided) shall not be
deemed a Real Estate Tax for the purposes hereof.
d. LEASE YEAR -- As used in this Article 23, Lease Year shall mean
a calendar year. Any portion of the Term which is less than a
Lease Year as hereinbefore defined, that is, from the
Commencement Date through the following December 31, and from
the last January 1, falling within the Term to the end of the
Term, shall be deemed a "Partial Lease Year". Any reference in
this Lease to a Lease Year shall, unless the context clearly
indicates otherwise, be deemed to be a reference to a Partial
Lease Year if the period in question involves a Partial Lease
Year.
e. PAYMENT -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the
categories referred to above, Lessor shall advise Lessee in
writing of Lessee's Percentage share with respect to each of the
categories as reasonably estimated for the next twelve (12)
month period (or proportionate part thereof if the last period
prior to the Lease's expiration is less than twelve (12) months)
as then known to the Lessor, and thereafter, the Lessee shall
pay as Additional Rent, Lessee's Percentage share of these costs
for the then current period affected by such advice (as the same
may be periodically revised by Lessor as additional costs are
incurred) in equal monthly installments, such new rates being
applied to any months, for which the Fixed Basic Rent shall have
already been paid which are affected by the Operating Cost
Escalation and/or Utility and Energy Cost Escalation and/or Tax
Escalation Costs above referred to, as well as the unexpired
months of the current period, the adjustment for the then
expired months to be made at the payment of the next succeeding
monthly rental, all subject to final adjustment at the
expiration of each Lease Year as defined in Article 23(e) hereof
(or Partial Lease Year if the last period prior to the Lease's
termination is less than twelve (12) months).
In the event the last period prior to the Lease's termination is
less than twelve (12) months, the Base Period Costs during said
period shall be proportionately reduced to correspond to the
duration of said final period.
f. BOOKS AND REPORTS -- For the protection of Lessee, Lessor shall
maintain books of account which, together with the back-up
materials thereto, shall be open to Lessee and its
representatives at all reasonable times so that Lessee can
determine that such Operating, Utility and Energy and Real
Estate Tax Costs have, in fact, been paid or incurred. Lessee's
representatives shall not (i) perform such inspection and/or
audit on a contingency basis, or (ii) perform such an inspection
and/or audit for any other tenant in the Building. At Lessor's
request, Lessee shall execute a confidentiality agreement
reasonably acceptable to Lessor prior to any examination of
Lessor's books and records. In the event Lessee disputes any one
or more of said charges, Lessee shall attempt to resolve such
dispute with Lessor, provided that if such dispute shall not be
satisfactorily settled between Lessor and Lessee, the dispute
shall be referred by either party to an independent certified
public accountant to be mutually agreed upon, and if such an
accountant cannot be agreed upon, The American Arbitration
Association may be asked by either party to select an
arbitrator, whose decision on the dispute will be final and
binding upon both parties, who shall jointly share any cost of
such arbitration. If the arbitrator determines that Lessor has
overstated the disputed sum by more than five percent (5%), then
Lessor shall pay the entire cost of the arbitration. Pending
resolution of said dispute the Lessee shall pay to Lessor the
sum so billed by Lessor subject to its ultimate resolution as
aforesaid. The parties agree to make any adjustment to such
Operating, Utility and Energy and Real Estate Tax Costs payments
determined to be necessary as a result of such review by Lessee
and/or arbitration.
g. RIGHT OF REVIEW -- Once Lessor shall have finally determined
said Operating, Utility and Energy or Real Estate Tax Costs at
the expiration of a Lease Year, then as to the item so
established, Lessee shall only be entitled to dispute said
charge as finally established for a period of six (6) months
after such charge is finally established, and
17
Lessee specifically waives any right to dispute any such charge
at the expiration of said six (6) month period.
h. OCCUPANCY ADJUSTMENT -- If, with respect to Operating Cost
Escalation, as established in Article 23(a) hereof, and Utility
and Energy Cost Escalation, as established in Article 23(b)
hereof, the Building is less than ninety-five percent (95%)
occupied during the establishment of the respective Base
Periods, then the Base Costs incurred with respect to said
Operating Cost or Utility and Energy Cost shall be adjusted
during any such period within the Base Period so as to reflect
ninety-five percent (95%) occupancy. Similarly, if during any
Lease Year or Partial Lease Year, subsequent to the Base Period
the Building is less than ninety-five percent (95%) occupied,
then the actual costs incurred for Operating Cost and Utility
and Energy Cost shall be increased during any such period to
reflect ninety-five percent (95%) occupancy so that at all times
after the Base Period the Operating Cost or Utility and Energy
Cost shall be actual costs, but in the event less than
ninety-five percent (95%) of the Building is occupied during all
or part of the Lease Year involved, the Operating Cost or
Utility and Energy Cost shall not be less than that which would
have been incurred had ninety-five percent (95%) of the Building
been occupied. The aforesaid adjustment shall only be made with
respect to those items that are in fact affected by variations
in occupancy levels.
24. LESSEE'S ESTOPPEL :
Lessee shall, from time to time, on not less than ten (10) days prior
written request by Lessor, execute, acknowledge and deliver to Lessor a
written statement, substantially in the form of Exhibit F attached
hereto, certifying that the Lease is unmodified and in full force and
effect, or that the Lease is in full force and effect as modified and
listing the instruments of modification; the dates to which the rents
and charges have been paid; and, to the best of Lessee's knowledge,
whether or not Lessor is in default hereunder, and if so, specifying the
nature of the default. It is intended that any such statement delivered
by Lessee pursuant to this Article 24 may be relied on by a prospective
purchaser of Lessor's interest or mortgagee of Lessor's interest or
assignee of any mortgage of Lessor's interest.
Lessor shall, from time to time, on not less than ten (10) days prior
written request by Lessee, execute, acknowledge and deliver to Lessee a
written statement reasonably acceptable to Lessee, certifying that the
Lease is unmodified and in full force and effect, or that the Lease is
in full force and effect as modified and listing the instruments of
modifications; the dates to which the rents and charges have been paid;
and whether or not Lessee is in default hereunder, and if so, specifying
the nature of the default. It is intended that any such statement
delivered by Lessor pursuant to this Article24 may be relied on by the
person to whom Lessee requests that such statement be addressed.
25. HOLDOVER TENANCY:
If Lessee holds possession of the Premises after the Expiration Date of
this Lease, Lessee shall (i) become a tenant from month to month under
the provisions herein provided, but at one hundred fifty percent (150%)
of the monthly Fixed Basic Rent for the last month of the Term, plus the
Additional Rent, for the first two (2) months of Lessee's holding over
and two hundred percent (200%) of the monthly Fixed Basic Rent for the
last month of the Term, plus the Additional Rent, thereafter, which
shall continue as provided in the Lease which sum shall be payable in
advance on the first day of each month, and without the requirement for
demand or notice by Lessor to Lessee demanding delivery of possession of
said Premises, and such tenancy shall continue until terminated by
Lessor, or until Lessee shall have given to Lessor, at least thirty (30)
days prior to the intended date of termination, a written notice of
intent to terminate such tenancy, which termination date must be as of
the end of a calendar month; and (ii) indemnify Lessor against loss or
liability resulting from the delay by Lessee in so surrendering the
Premises including, without limitation, any claims made by any
succeeding occupant founded on such delay. Lessee's obligations under
this Section shall survive the expiration or sooner termination of the
Lease. The time limitations described in this Article 25 shall not be
subject to extension for Force Majeure.
18
26. RIGHT TO SHOW PREMISES:
Lessor may show the Premises to prospective purchasers and mortgagees;
and during the twelve (12) months prior to termination of this Lease, to
prospective tenants, during Building Hours on reasonable notice to
Lessee.
27. LESSOR'S WORK - LESSEE'S DRAWINGS:
Lessee shall accept the Premises "as is". Such term shall mean in the
same condition and repair in which the prior tenant vacated such space,
and Lessee shall be responsible for any demolition and removal of any
improvements existing in the Premises in connection with the prior
tenant's occupancy, and all other work as may be necessary to convert
the Premises to Lessee's requirements. Lessor shall not be responsible
for performing any work with respect to such space. Any work, changes or
improvements made to such space shall be performed at Lessee's expense
in accordance with the terms of Exhibit C of this Lease.
28. WAIVER OF TRIAL BY JURY:
To the extent such waiver is permitted by law, the parties waive trial
by jury in any action or proceeding brought in connection with this
Lease or the Premises.
29. LATE CHARGE:
Anything in this Lease to the contrary notwithstanding, at Lessor's
option, Lessee shall pay a "Late Charge" of five percent (5%) of any
installment of Fixed Basic Rent or Additional Rent paid more than five
(5) business days after the due date thereof, to cover the extra expense
involved in handling delinquent payments, said Late Charge to be
considered Additional Rent. The amount of the Late Charge to be paid by
Lessee shall be reassessed and added to Lessee's obligations for each
successive monthly period until paid.
Notwithstanding anything in this Section to the contrary, Lessor shall
waive a Late Charge one time during each Lease Year provided, however,
the installment of Fixed Basic Rent or Additional Rent so due is paid by
the fifteenth (15th) day of the month.
30. LESSEE'S INSURANCE:
a. Lessee covenants to provide at Lessee's cost and expense on or
before the earlier of (i) the Commencement Date, or (ii)
Lessee's taking actual possession for the purpose of completing
any improvement work, and to keep in full force and effect
during the entire Term and so long thereafter as Lessee, or
anyone claiming by, through or under Lessee, shall occupy the
Premises, insurance coverage as follows:
i. Commercial General Liability insurance with contractual
liability endorsements with respect to the Premises and
the business of Lessee in which Lessee shall be
adequately covered under limits of liability of not less
than FIVE MILLION AND 00/100 DOLLARS ($5,000,000.00)
combined single limit per occurrence for bodily or
personal injury (including death) and property damage.
Such insurance may be carried (x) under a blanket policy
covering the Premises and other locations of Lessee, if
any, provided that each such policy shall in all
respects comply with this Article and shall specify that
the portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required
pursuant to this Article 30 and (y) under a primary
liability policy of not less than ONE MILLION AND 00/100
DOLLARS ($1,000,000.00) and the balance under an
umbrella policy. Notwithstanding anything to the
contrary contained in this Lease, the carrying of
insurance by Lessee in compliance with this Article 30
shall not modify, reduce, limit or impair Lessee's
obligations and liability under Article 33 hereof.
19
ii. Fire and Extended Coverage, Vandalism, Malicious
Mischief, Sprinkler Leakage and Special Extended
Coverage Insurance in an amount adequate to cover the
cost of replacement of all personal property,
decoration, trade fixtures, furnishings, equipment in
the Premises and all contents therein. Lessor shall not
be liable for any damage to such property of Lessee by
fire or other peril includable in the coverage afforded
by the standard form of fire insurance policy with
extended coverage endorsement attached (whether or not
such coverage is in effect), no matter how caused, it
being understood that the Lessee will look solely to its
insurer for reimbursement.
iii. Worker's Compensation Insurance in the minimum statutory
amount covering all persons employed by Lessee.
iv. Said limits shall be subject to periodic review and
Lessor reserves the right to increase said coverage
limits if, in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than that
commonly maintained by tenants in similar buildings in
the area by tenants making similar uses. On or before
the Commencement Date, and thereafter at Lessor's
request, Lessee shall provide Lessor evidence of the
insurance coverage required herein in the form of a
duplicate original insurance policy, an insurance binder
(countersigned by the insurer), or Evidence of Insurance
(in form XXXXX 27 with respect to property insurance and
XXXXX 25-S with respect to liability insurance) for each
of the insurance policies Lessee is required to carry in
compliance with its obligations under this Lease.
b. All of the aforesaid insurance shall (i) name Lessor as an
additional insured on a primary basis; (ii) be written by one or
more responsible insurance companies licensed in the State of
New Jersey satisfactory to Lessor and in form satisfactory to
Lessor; (iii) contain endorsements substantially as follows: "It
is understood and agreed that the insurer will give to Lessor,
or any successor lessor, c/o Xxxx-Xxxx Realty Corporation, 00
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx, thirty (30) days prior
written notice of any material change in or cancellation of this
policy."; (iv) shall be written on an "occurrence" basis and not
on a "claims made" basis.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any
premium for such insurance. Lessee shall deliver to Lessor at
least fifteen (15) days prior to the expiration of such policy,
either a duplicate original or a certificate it being the
intention of the parties hereto that the insurance required
under the terms hereof shall be continuous during the entire
Term of this Lease and any other period of time during which
pursuant to the Term hereof, said insurance is required. Any
insurance carried by Lessee shall be in excess of and will not
contribute with the insurance carried by Lessor for injuries or
damage arising out of the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all
rules and regulations of the National Fire Protection
Association (NFPA) National Fire Code. If, at any time or from
time to time, as a result of or in connection with any failure
by Lessee to comply with the foregoing sentence or any act or
omission or commission by Lessee, its employees, agents,
contractors or licensees, or a result of or in connection with
the use to which the Premises are put (notwithstanding that such
use may be for the purposes hereinbefore permitted or that such
use may have been consented to by Lessor), the fire insurance
rate(s) applicable to the Premises shall be higher than that
which would be applicable for a business office legally
permitted therein, Lessee agrees that it will pay to Lessor as
Additional Rent, such portion of the premiums for all Lessor's
fire insurance policies in force with respect to the building
and the contents of any occupant thereof as shall be
attributable to such higher rate(s).
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee against Lessee's
undertaking under this Article 30, and in the event Lessee
believes that any such insurance coverage called for under this
Lease is insufficient, Lessee shall provide, at is own expense,
such additional insurance as Lessee deems adequate.
20
x. Xxxxxx and Lessee shall procure a clause in, or endorsement on,
each of their policies for fire or extended coverage insurance
covering the Premises or personal property, fixtures or
equipment located therein, pursuant to which the insurance
company waives subrogation or consents to a waiver of right of
recovery against the other party. Lessor and Lessee agree not to
make claims against, or seek to recover from, the other party
for loss or damage to its property or property of others covered
by such insurance (or which would be covered by insurance
required to be maintained hereunder). To the extent either party
shall be a self-insurer, such party waives the right of
recovery, if any, against the other party, its agents and
employees, for loss, damages or destruction of such self-insured
party's property. In the event of any conflict between the
provisions of this Section 30 f. and any other provision of this
Lease, the provisions of this Section 30f. shall control.
g. Should Lessee fail to maintain the insurance coverage as set
forth in this Article 30, then Lessee shall be in default
hereunder and shall be deemed to have breached its covenants as
set forth herein.
31. NO OTHER REPRESENTATIONS:
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some
future writing signed by the party making such representation(s) or
promise(s).
32. QUIET ENJOYMENT:
Lessor covenants that if, and so long as, Lessee pays Fixed Basic Rent,
and any Additional Rent as herein provided, and performs Lessee's
covenants hereof, neither Lessor nor anyone claiming by, through or
under Lessor shall do anything to affect Lessee's right to peaceably and
quietly have, hold and enjoy the Premises for the Term herein mentioned,
subject to the provisions of this Lease.
33. INDEMNITY:
Lessee shall defend, indemnify and save harmless Lessor and its agents
against and from; (a) any and all claims (i) arising from (x) the
conduct or management by Lessee, its subtenants, licensees, its or their
employees, agents, contractors or invitees on the Premises or of any
business therein, or (y) any work or thing whatsoever done, or any
condition created (other than by Lessor for Lessor's or Lessee's
account) in or about the Premises during the Term of this Lease, or
during the period of time, if any, prior to the Commencement Date that
Lessee may have been given access to the Premises, (z) any default by
Lessee under the terms, covenants and conditions of this Lease or (ii)
arising from any negligent or otherwise wrongful act or omission of
Lessee or any of its subtenants or licensees or its or their employees,
agents, contractors or invitees, and (b) all costs, expenses and
liabilities including attorneys fees and disbursements incurred in or in
connection with each such claim, action or proceeding brought thereon.
In case any action or proceeding be brought against Lessor by reason of
any such claim, Lessee, upon notice from Lessor, shall resist and defend
such action or proceeding.
Lessor shall indemnify and save harmless Lessee and Lessee's
shareholders, officers, directors, employees, agents and contractors
(collectively, the "Lessee INDEMNITEES") from and against (a) any and
all claims of whatever nature against Lessee and/or the Lessee
Indemnitees (i) arising from (x) the conduct or management by Lessor,
its employees, agents, contractors or invitees on the Office Building
Area or the Building, or (y) any work or thing whatsoever done, or any
condition created by Lessor for Lessor's or Lessee's account in or about
the Office Building Area or the Building during the Term of this Lease,
(z) any default by Lessor in the performance of Lessor's obligations
under this Lease, or (ii) arising from any negligent or otherwise
wrongful act or omission of Lessor or any of its employees, agents or
contractors, and (b) all costs, expenses and liabilities including
attorneys' fees and disbursements incurred in or in connection with each
such claim, action or proceeding brought thereon. In case any action or
proceeding be brought against Lessee by reason of any
21
such claim, Lessor, upon notice from Lessee, shall resist and defend
such action or proceeding.
34. ARTICLE HEADINGS:
The article headings in this Lease and position of its provisions are
intended for convenience only and shall not be taken into consideration
in any construction or interpretation of this Lease or any of its
provisions.
35. APPLICABILITY TO HEIRS AND ASSIGNS:
The provisions of this Lease shall apply to, bind and inure to the
benefit of Lessor and Lessee, and their respective heirs, successors,
legal representatives and assigns. It is understood that the term
"Lessor" as used in this Lease means only the owner, a mortgagee in
possession or a term lessee of the Building, so that in the event of any
sale of the Building or of any lease thereof, or if a mortgagee shall
take possession of the Premises, the Lessor herein shall be and hereby
is entirely freed and relieved of all covenants and obligations of
Lessor hereunder accruing thereafter, and it shall be deemed without
further agreement that the purchaser, the term lessee of the Building,
or the mortgagee in possession has assumed and agreed to carry out any
and all covenants and obligations of Lessor hereunder.
36. OUTSIDE PARKING SPACES:
Lessee's occupancy of the Premises shall include the use of the number
of outside parking spaces as set forth in the Preamble. Lessor shall not
be responsible for any damage or theft of any vehicle in the parking
area and shall not be required to keep parking spaces clear of
unauthorized vehicles or to otherwise supervise the use of the parking
area. Lessee shall, upon request, promptly furnish to Lessor the license
numbers of the cars operated by Lessee and its subtenants, licensees,
invitees, concessionaires, officers and employees. If any vehicle of the
Lessee, or of any subtenant, licensee, concessionaire, or of their
respective officers, agents or employees, is parked in any part of the
Common Facilities other than the employee parking area(s) designated
therefor by Lessor, Lessee shall pay to Lessor such reasonable penalty
as may be fixed by Lessor from time to time. All amounts due under the
provisions of this Article 36 shall be deemed to be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:
Lessor shall not be liable for any loss of property from any cause
whatsoever, including but not limited to theft or burglary from the
Premises, and any such loss arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions in
the construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof, and Lessee
covenants and agrees to make no claim for any such loss at any time.
38. PARTIAL INVALIDITY:
If any of the provisions of this Lease, or the application thereof to
any person or circumstances, shall to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
provision or provisions to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
39. LESSEE'S BROKER:
Lessee represents and warrants to Lessor that its broker, as defined in
the Preamble is the sole broker with whom Lessee has negotiated in
bringing about this Lease and Lessee agrees to indemnify and hold Lessor
and its mortgagee(s) harmless from any and all claims of other
22
brokers claiming to have dealt with Lessee and expenses in connection
therewith arising out of or in connection with the negotiation of or the
entering into this Lease by Lessor and Lessee. In no event shall
Lessor's mortgagee(s) have any obligation to any broker involved in this
transaction. In the event that no broker was involved as aforesaid, then
Lessee represents and warrants to the Lessor that no broker brought
about this transaction, and Lessee agrees to indemnify and hold Lessor
harmless from any and all claims of any broker claiming to have dealt
with Lessee arising out of or in connection with the negotiations of, or
entering into of, this Lease by Lessee and Lessor.
40. PERSONAL LIABILITY:
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessor, that there
shall be absolutely no personal liability on the part of Lessor, its
constituent members (to include but not be limited to, officers,
directors, partners and trustees) their respective successors, assigns
or any mortgagee in possession (for the purposes of this Article,
collectively referred to as "Lessor"), with respect to any of the terms,
covenants and conditions of this Lease, and that Lessee shall look
solely to the equity of Lessor in the Building (including, without
limitation, rental income and proceeds of sale, insurance and
condemnation) for the satisfaction of each and every remedy of Lessee in
the event of any breach by Lessor of any of the terms, covenants and
conditions of this Lease to be performed by Lessor, such exculpation of
liability to be absolute and without any exceptions whatsoever.
41. NO OPTION:
The submission of this Lease Agreement for examination does not
constitute a reservation of, or option for, the Premises, and this Lease
Agreement becomes effective as a Lease Agreement only upon execution and
delivery thereof by Lessor and Lessee.
42. DEFINITIONS:
a. AFFILIATE -- Affiliate shall mean any corporation related to
Lessee as a parent, subsidiary or brother-sister corporation so
that such corporation and such party and other corporations
constitute a controlled group as determined under Section 1563
of the Internal Revenue Code of 1986, as amended and as
elaborated by the Treasury Regulations promulgated thereunder or
any business entity in which Lessee has more than a fifty
percent (50%) interest.
b. COMMON FACILITIES -- Common Facilities shall mean the
non-assigned parking areas; lobby; elevator(s); fire stairs;
public hallways; public lavatories; all other general Building
facilities that service all Building tenants; air conditioning
rooms; fan rooms; janitors' closets; electrical closets;
telephone closets; elevator shafts and machine rooms; flues;
stacks; pipe shafts and vertical ducts with their enclosing
walls. Lessor may at any time close temporarily any Common
Facilities to make repairs or changes therein or to effect
construction, repairs or changes within the Building, or to
discourage non-tenant parking, and may do such other acts in and
to the Common Facilities as in its judgement may be desirable to
improve the convenience thereof, but shall always in connection
therewith, endeavor to minimize any inconvenience to Lessee.
c. FORCE MAJEURE -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by way
of example and not by way of limitation, acts of God; accidents;
repairs; strikes; shortages of labor, supplies or materials;
inclement weather; or, where applicable, the passage of time
while waiting for an adjustment or insurance proceeds. Any time
limits required to be met by either party hereunder, whether
specifically made subject to Force Majeure or not, except those
related to the payment of Fixed Basic Rent or Additional Rent,
shall, unless specifically stated to the contrary elsewhere in
this Lease, be automatically extended by the number of days by
which any performance called for is delayed due to Force
Majeure.
23
d. LESSEE'S PERCENTAGE -- The parties agree that Lessee's
Percentage, as defined in the Preamble, reflects and will be
continually adjusted to reflect the ratio of the gross square
feet of the area rented to Lessee (including an allocable share
of all Common Facilities) [the numerator] as compared with the
total number of gross square feet of the entire Building (or
additional buildings that may be constructed within the Office
Building Area) [the denominator] measured outside wall to
outside wall, but excluding therefrom any storage areas. Lessor
shall have the right to make changes or revisions in the Common
Facilities of the Building so as to provide additional leasing
area. Lessor shall also have the right to construct additional
buildings in the Office Building Area for such purposes as
Lessor may deem appropriate, and subdivide the lands for that
purpose if necessary, and upon so doing, the Office Building
Area shall become the subdivided lot on which the Building in
which the Premises is located. However, if any service provided
for in Article 23(a) or any utility provided for in Article
23(b) is separately billed or separately metered within the
Building, then the square footage so billed or metered shall be
subtracted from the denominator and the Lessee's proportionate
share for such service and/or utility shall be separately
computed, and the Base Costs for such item shall not include any
charges attributable to said square footage. Lessee understands
that as a result of changes in the layout of the Common
Facilities from time to time occurring due to, by way of example
and not by way of limitation, the rearrangement of corridors,
the aggregate of all Building tenant proportionate shares may be
equal to, less than or greater than one hundred percent (100%).
43. LEASE COMMENCEMENT:
The Rent Commencement Date of this Lease, as defined in the Preamble to
this Lease, shall occur regardless of Lessee's failure to complete
tenant improvement work pursuant to Exhibit C attached hereto. Lessor
and Lessee shall ratify and confirm the Rent Commencement Date and
Expiration Date by completing and signing Exhibit G attached hereto and
made a part hereof.
44. NOTICES:
Any notice by either party to the other shall be in writing and shall be
deemed to have been duly given only if (i) delivered personally or (ii)
sent by registered mail or certified mail return receipt requested in a
postage paid envelope addressed or (iii) sent by nationally recognized
overnight delivery service, if to Lessee, at the Building (except that
any notice to Lessee prior to the Rent Commencement Date shall be
addressed to Lessee at 0 Xxxxxx Xxx, Xxxxxxxxxx, XX 07054); if to
Lessor, at Lessor's address as set forth above; or, to either at such
other address as Lessee or Lessor, respectively, may designate in
writing. Notice shall be deemed to have been duly given, if delivered
personally, on delivery thereof, if mailed, upon the tenth (10th) day
after the mailing thereof or if sent by overnight delivery service, the
next business day.
45. ACCORD AND SATISFACTION:
No payment by Lessee or receipt by Lessor of a lesser amount than the
rent and additional charges payable hereunder shall be deemed to be
other than a payment on account of the earliest stipulated Fixed Basic
Rent and Additional Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment for Fixed Basic
Rent or Additional Rent be deemed an accord and satisfaction, and Lessor
may accept such check or payment without prejudice to Lessor's right to
recover the balance of such Fixed Basic Rent and Additional Rent or
pursue any other remedy provided herein or by law.
46. EFFECT OF WAIVERS:
No failure by Lessor to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease, or to exercise any
right or remedy consequent upon a breach thereof, and no acceptance of
full or partial rent during the continuance of any such breach,
24
shall constitute a waiver of any such breach or of such covenant,
agreement, term or condition. No consent, or waiver, express or implied,
by Lessor to or of any breach of any covenant, condition or duty of
Lessee shall be construed as a consent or waiver to or of any other
breach of the same or any other covenant, condition or duty, unless in
writing signed by Lessor.
47. LEASE CONDITION: INTENTIONALLY OMITTED
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:
Lessee agrees to give any mortgagees and/or trust deed holders, by
registered mail, a copy of any notice of default served upon Lessor,
provided that, prior to such notice, Lessee has been notified in writing
(by way of notice of assignment of rents and leases or otherwise) of the
address of such mortgagees and/or trust deed holders. Lessee further
agrees that, if Lessor shall have failed to cure such default within the
time provided for in this Lease, then the mortgagees and/or trust deed
holders shall have an additional thirty (30) days within which to cure
such default, or if such default cannot be cured within that time, then
such additional time as may be necessary, if within such thirty (30)
days, any mortgagee and/or trust deed holder has commenced and is
diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings if
necessary to effect such cure), in which event this Lease shall not be
terminated while such remedies are being so diligently pursued.
49. LESSOR'S RESERVED RIGHT:
Lessor and Lessee acknowledge that the Premises are in a Building which
is not open to the general public. Access to the Building is restricted
to Lessor, Lessee, their agents, employees and contractors and to their
invited visitors. In the event of a labor dispute including a strike,
picketing, informational or associational activities directed at Lessee
or any other tenant, Lessor reserves the right unilaterally to alter
Lessee's ingress and egress to the Building or make any change in
operating conditions to restrict pedestrian, vehicular or delivery
ingress and egress to a particular location.
50. CORPORATE AUTHORITY:
If Lessee is a corporation, Lessee represents and warrants that this
Lease has been duly authorized and approved by the corporation's Board
of Directors. The undersigned officers and representatives of the
corporation represent and warrant that they are officers of the
corporation with authority to execute this Lease on behalf of the
corporation, and within fifteen (15) days of execution hereof, Lessee
will provide Lessor with a corporate resolution confirming the
aforesaid.
51. AFTER-HOURS USE:
Lessee shall be entitled to make use of said Standard Electric Service
and HVAC beyond the Building Hours, at Lessee's sole cost and expense,
provided Lessee shall notify the Lessor by 3:00 p.m. on the day that
Lessee shall require said overtime use if said overtime use is required
on any weekday, and by 3:00 p.m. on Friday for Saturday and/or Sunday
overtime use. It is understood and agreed that Lessee shall pay the sum
of SEVENTY-FIVE AND 00/100 DOLLARS ($75.00) per hour per zone for
air-conditioning service and SIXTY AND 00/100 DOLLARS ($60.00) per hour
per zone for heating services, plus such additional percentage increase
of the aforesaid hourly sum computed by measuring the percentage
increase between the rate in effect (including fuel surcharges or
adjustments) during the month for which such overtime use is requested
and the Base Rate. The Base Rate for purposes hereof shall be the
average of the rates in effect (including surcharges and/or adjustments)
during Calendar Year 2003.
25
In no event shall the Lessee pay less than the sum of SEVENTY-FIVE AND
00/100 DOLLARS ($75.00) per hour per zone for such overtime
air-conditioning service or less than SIXTY AND 00/100 DOLLARS ($60.00)
per hour per zone for such overtime heating service.
52. LESSEE'S EXPANSION/RELOCATION: INTENTIONALLY OMITTED
53. BUILDING PERMIT:
Intentionally Omitted.
54. OPTION TO RENEW
(a) If the term of this Lease shall then be in full force and effect
and Lessee is not in default hereunder beyond applicable notice
and grace periods, Lessee shall have the option to extend the
term of this Lease for a period of five (5) years (the "Renewal
Term") commencing on the day immediately following the
Expiration Date, provided however that Lessee shall give Lessor
notice of its election to extend the term no earlier than
eighteen (18) months prior to the Expiration Date nor later than
nine (9) months prior to the Expiration Date of the initial
term. TIME BEING OF THE ESSENCE in connection with the exercise
of Lessee's option pursuant to this Article.
(b) Such extension of the term of this Lease shall be upon the same
covenants and conditions, as herein set forth except: (i) for
the Fixed Basic Rent (which shall be determined in the manner
set forth below), (ii) the Base Period Costs shall be re-set to
be those incurred in the first year of the Renewal Term, and
(iii) that Lessee shall have no further right to extend the term
of this Lease after the exercise of the single option described
in paragraph (a) of this Section. If Lessee shall duly give
notice of its election to extend the term of this Lease, the
Renewal Term shall be added to and become a part of the Term of
this Lease (but shall not be considered a part of the initial
Term), and any reference in this Lease to the "Term of this
Lease", the "Term hereof", or any similar expression shall be
deemed to include such Renewal Term, and, in addition, the term
"Expiration Date" shall thereafter mean the last day of such
Renewal Term. Lessor shall have no obligation to perform any
alteration or preparatory or other work in and to the Premises
and Lessee shall continue possession thereof in its "as is"
condition.
(c) If Lessee exercises its option for the Renewal Term, the Fixed
Basic Rent during the Renewal Term shall be the fair market rent
for the Premises, as hereinafter defined.
(d) Lessor and Lessee shall use their best efforts, within thirty
(30) days after Lessor receives Lessee's notice of its election
to extend the Term of this Lease for the Renewal Term
("Negotiation Period"), to agree upon the Fixed Basic Rent to be
paid by Lessee during the Renewal Term. If Lessor and Lessee
shall agree upon the Fixed Basic Rent for the Renewal Term, the
parties shall promptly execute an amendment to this Lease
stating the Fixed Basic Rent for the Renewal Term.
(e) If the parties are unable to agree on the Fixed Basic Rent for
the Renewal Term during the Negotiation Period, then within
fifteen (15) days after notice from the other party, given after
expiration of the Negotiation Period, each party, at its cost
and upon notice to the other party, shall appoint a person to
act as an appraiser hereunder, to determine the fair market rent
for the Premises for the Renewal Term. Each such person shall be
a real estate broker or appraiser with at least ten years'
active commercial real estate appraisal or brokerage experience
(involving the leasing of office space as agent for both
landlords and lessees) in the County of Xxxxxx. If a party does
not appoint a person to act as an appraiser within said fifteen
(15) day period, the person appointed by the other party shall
be the sole appraiser and shall determine the aforesaid fair
market rent. Each notice containing the name of a person to act
as appraiser shall contain also the person's address. Before
proceeding to establish the fair market rent, the appraisers
shall subscribe and swear to an oath fairly and impartially to
determine such rent.
26
If the two appraisers are appointed by the parties as stated in
the immediately preceding paragraph, they shall meet promptly
and attempt to determine the fair market rent. If they are
unable to agree within forty-five (45) days after the
appointment of the second appraiser, they shall attempt to
select a third person meeting the qualifications stated in the
immediately preceding paragraph within fifteen (15) days after
the last day the two appraisers are given to determine the fair
market rent. If they are unable to agree on the third person to
act as appraiser within said fifteen (15) day period, the third
person shall be appointed by the American Arbitration
Association (the "Association"), upon the application of Lessor
or Lessee to the office of the Association nearest the Building.
The person appointed to act as appraiser by the Association
shall be required to meet the qualifications stated in the
immediately preceding paragraph. Each of the parties shall bear
fifty percent (50%) of the cost of appointing the third person
and of paying the third person's fees. The third person, however
selected, shall be required to take an oath similar to that
described above.
The three appraisers shall meet and determine the fair market
rent. A decision in which two of the three appraisers concur
shall be binding and conclusive upon the parties. In deciding
the dispute, the appraisers shall act in accordance with the
rules then in force of the Association, subject however, to such
limitations as may be placed on them by the provisions of this
Lease.
Notwithstanding the foregoing, in no event shall the Fixed Basic
Rent during the Renewal Term be less than the Fixed Basic Rent
during the last year of the initial Term of this Lease.
(f) After the fair market rent for the Renewal Term has been
determined by the appraiser or appraisers and the appraiser or
appraisers shall have notified the parties, at the request of
either party, both parties shall execute and deliver to each
other an amendment of this Lease stating the Fixed Basic Rent
for the Renewal Term.
(g) If the Fixed Basic Rent for the Renewal Term has not been agreed
to or established prior to the commencement of the Renewal Term,
then Lessee shall pay to Lessor an annual rent ("Temporary
Rent") which Temporary Rent shall be equal to the Fixed Basic
Rent payable by Lessee for the last year of the initial Term.
Thereafter, if the parties shall agree upon a Fixed Basic Rent,
or the Fixed Basic Rent shall be established upon the
determination of the fair market rent by the appraiser or
appraisers, at a rate at variance with the Temporary Rent (i) if
such Fixed Basic Rent is greater than the Temporary Rent, Lessee
shall promptly pay to Lessor the difference between the Fixed
Basic Rent determined by agreement or the appraisal process and
the Temporary Rent, or (ii) if such Fixed Basic Rent is less
than the Temporary Rent, Lessor shall credit to Lessee's
subsequent monthly installments of Fixed Basic Rent the
difference between the Temporary Rent and the Fixed Basic Rent
determined by agreement or the appraisal process.
(h) In describing the fair market rent during the Renewal Term, the
appraiser or appraisers shall be required to take into account
the rentals at which leases are then being concluded (as of the
last day of the initial Term) (for five (5) year leases without
renewal options with the lessor and lessee each acting
prudently, with knowledge and for self-interest, and assuming
that neither is under undue duress) for as-is comparable space
in the Building and in comparable office buildings in the County
of Xxxxxx, without a Lessor contribution for tenant fit-up but
with new base years.
55. RIGHT OF FIRST OFFER
a. i. Subject to the provisions of this Article, Lessee shall
have the option to lease from Lessor space on the east
wing of the second (2nd) floor as shown on the attached
floor plan, ("Additional Space") at the expiration of
the existing space lease(s) for such Additional Space,
or to the extent any portion of the Additional Space is
presently vacant, at the expiration of the initial lease
for such vacant space. If the Term of this Lease shall
be in full force and effect on the expiration or
termination date of the existing space lease(s) or
initial space lease, as the case may be, for the
Additional Space, subject to Lessor's right to
27
renew such lease(s), and the date upon which Lessee
shall exercise the option hereinafter referred to,
Lessee shall have the option to lease all, but not less
than all of the Additional Space on an as-is basis,
provided Lessee gives Lessor written notice of such
election within fifteen (15) business days after Lessee
shall receive Lessor's notice that such Additional Space
is available for leasing to Lessee. If Lessee fails or
refuses to exercise this option within the time period
set forth above (TIME BEING OF THE ESSENCE), then and in
such event Lessee shall have no further rights under
this Section with respect to such Additional Space. If
Lessee shall elect to lease said Additional Space: (v)
said Additional Space shall be deemed incorporated
within and part of the Premises on the date that Lessor
shall notify Lessee that such Additional Space is ready
for occupancy by Lessee and shall expire on the
Expiration Date of this Lease, (x) the Fixed Basic Rent
payable under this Lease shall be increased by an amount
such that during the balance of the term of this Lease
the Fixed Basic Rent for said Additional Space shall be
the then fair market rent for the Additional Space, as
determined in the manner set forth in clause (ii) below,
(y) Lessee's Percentage Share shall be proportionately
increased, and (z) all other terms and provisions set
forth in this Lease shall apply, except that Lessor not
be required to perform any work with respect to said
Additional Space.
The parties shall promptly execute an amendment of this
Lease confirming Lessee's election to lease said
Additional Space and the incorporation of said
Additional Space into the Premises.
ii. Lessor and Lessee shall use their best efforts, within
thirty (30) days after Lessor receives Lessee's notice
of its election to lease said Additional Space,
("Negotiation Period") to agree upon the Fixed Basic
Rent to be paid by Lessee for said Additional Space. If
Lessor and Lessee shall agree upon the Fixed Basic Rent,
the parties shall promptly execute an amendment to this
Lease stating the Fixed Basic Rent for the Additional
Space.
If the parties are unable to agree on the Fixed Basic
Rent for said Additional Space during the Negotiation
Period, then within fifteen (15) days notice from the
other party, given after expiration of the Negotiation
Period, each party, at its cost and upon notice to the
other party, shall appoint a person to act as an
appraiser hereunder, to determine the fair market rent
for the Additional Space. Each such person shall be a
real estate broker or appraiser with at least ten (10)
years' active commercial real estate appraisal or
brokerage experience (involving the leasing of similar
space as agent for both landlords and tenants) in Xxxxxx
County. If a party does not appoint a person to act as
an appraiser within said fifteen (15) day period, the
person appointed by the other party shall be the sole
appraiser and shall determine the aforesaid fair market
rent. Each notice containing the name of a person to act
as appraiser shall contain the person's address. Before
proceeding to establish the fair market rent, the
appraisers shall subscribe and swear to an oath fairly
and impartially to determine such rent.
If the two appraisers are appointed by the parties as
stated in the immediately preceding paragraph, they
shall meet promptly and attempt to determine the fair
market rent. If they are unable to agree within
forty-five (45) days after the appointment of the second
appraiser, they shall attempt to select a third person
meeting the qualifications stated in the immediately
preceding paragraph within fifteen (15) days after the
last day the two appraisers are given to determine the
fair market rent. If they are unable to agree on the
third person to act as appraiser within said fifteen
(15) day period, the third person shall be appointed by
the American Arbitration Association, upon the
application of Lessor or Lessee to the office of the
Association nearest the Building. The person appointed
to act as appraiser by the Association shall be required
to meet the qualifications stated in the immediately
preceding paragraph. Each of the parties shall bear
fifty percent (50%) of the cost of appointing the third
person and of paying the third person's fees. The third
person, however selected, shall be required to take an
oath similar to that described above.
The three appraisers shall meet and determine the fair
market rent. A decision
28
in which two of the three appraisers concur shall be
binding and conclusive upon the parties. In deciding the
dispute, the appraisers shall act in accordance with the
rules then in force of the American Arbitration
Association, subject however, to such limitations as may
be placed on them by the provisions of this Lease.
After the Fixed Basic Rent for the Additional Space has
been determined by the appraiser or appraisers and the
appraiser or appraisers shall have notified the parties,
at the request of either party, both parties shall
execute and deliver to each other an amendment of this
Lease stating the Fixed Basic Rent for the Additional
Space.
If the Fixed Basic Rent for said Additional Space has
not been agreed to or established prior to the
incorporation of said Additional Space in the Premises,
then Lessee shall pay to Lessor an annual rent
("Temporary Rent") which Temporary Rent on a per square
foot basis shall be equal to the Fixed Basic Rent, on a
per square foot basis, then being paid by Lessee for the
Premises.
Thereafter, if the parties shall agree upon a Fixed
Basic Rent, or the Fixed Basic Rent shall be established
upon the determination of the fair market rent by the
appraiser or appraisers, at a rate at variance with the
Temporary Rent (i) if such Fixed Basic Rent is greater
than the Temporary Rent, Lessee shall promptly pay to
Lessor the difference between the Fixed Basic Rent
determined by agreement or the appraisal process and the
Temporary Rent, or (ii) if such Fixed Basic Rent is less
than the Temporary Rent, Lessor shall credit to Lessee's
subsequent monthly installments of Fixed Basic Rent the
difference between the Temporary Rent and the Fixed
Basic Rent determined by agreement or the appraisal
process.
In determining the fair market rent for said Additional
Space, the appraiser or appraisers shall be required to
take into account the rentals at which leases are then
being concluded for comparable space in the Building and
in comparable buildings in the County of Xxxxxx, New
Jersey, without a Lessor contribution for tenant fit-up.
In no event shall the Fixed Basic Rent for the
Additional Space, on a per square foot basis, be less
than the Fixed Basic Rent for the Premises, on a per
square foot basis.
b. The option granted to Lessee under this Article 55 may
be exercised only by Lessee, its permitted successors and
assigns, and not by any subtenant or any successor to the
interest of Lessee by reason of any action under the Bankruptcy
Code, or by any public officer, custodian, receiver, United
States Trustee, trustee or liquidator of Lessee or substantially
all of Lessee's property. Lessee shall have no right to exercise
any of such options subsequent to the date Lessor shall have the
right to give the notice of termination referred to in Article
13. Notwithstanding the foregoing, Lessee shall have no right to
exercise the option granted to Lessee hereunder if, at the time
it gives notice of such election (i) Lessee shall not be in
occupancy of substantially all of the Premises or (ii) the
Premises or any part thereof shall be the subject of a sublease.
If Lessee shall have elected to exercise its option hereunder,
such election shall bee deemed withdrawn if, at any time after
the giving of notice of such election and prior to the occupancy
of the Additional Space, Lessee shall sublease all or any part
of the Premises.
56. ROOF RIGHTS.
Without limiting any other provision of this Lease, Lessee shall have
the non-exclusive right to install one satellite dish ( the "Dish") and
a supplemental air conditioning unit for the Premises (the "Air
Conditioner" and, together with the Dish, the "Facilities") on the roof
of the Building (including necessary connection to the Demised Premises)
for use by Lessee, provided any such installations shall be subject to
Lessor's prior consent, which consent shall not be unreasonably
withheld, conditioned or delayed. Any such Facilities shall be installed
in accordance with all applicable laws and building codes. Lessee shall
remove such Facilities at the expiration or
29
earlier termination of the Lease; provided Lessee shall repair any
damage to the roof caused by such removal. Prior to making any
installations on the roof of the Building, Lessee shall use a roofing
contractor for all work to be performed by Lessee on the roof of the
Building approved by Lessor, which approval shall not be unreasonably
withheld.
Lessee shall furnish detailed plans and specifications for the
Facilities (or any modifications thereof) to Lessor for its approval.
The parties agree that Lessee's use of the rooftop of the Building is a
non-exclusive use and Lessor may permit the use of any other portion of
the roof to any other person for any use including installation of other
satellite dishes, antennas and support equipment. Lessee shall use its
reasonable efforts to insure that its use of the rooftop does not impair
such other person's data transmission and reception via its respective
antennas and support equipment. If Lessee's construction, installation,
maintenance, repair, operation or use of the Dish shall interfere with
the rights of Lessor (including, without limitation, Lessor's right to
reasonably use the remainder of the roof) or other lessees in the
Building, Lessee shall cooperate with Lessor or such other lessees in
eliminating such interference; provided, however, the cost of remedying
such interference shall be borne by the party which is suffering such
interference, unless such party was not suffering such interference
prior to the use of the Dish causing such interference by Lessee, in
which case the cost of remedying such interference shall be borne by
Lessee. Lessee shall secure and keep in full force and effect, from and
after the time Lessee begins construction and installation of the
Facilities, such supplementary insurance with respect to the Facilities
as Lessor may reasonably require, provided that the same shall not be in
excess of that which would customarily be required from time to time by
Lessors of buildings of similar class and character in Xxxxxx County,
New Jersey with respect to similar installations.
In connection with the installation, maintenance and operation of the
Facilities , Lessee, at Lessee's sole cost and expense, shall comply
with all legal requirements and shall procure, maintain and pay for all
permits required therefor, and Lessor makes no warranties whatsoever as
to the permissibility of the Facilities under applicable legal
requirements or the suitability of the roof of the Building for the
installation thereof. If Lessor's structural engineer deems it advisable
that there be structural reinforcement of the roof in connection with
the installation of the Facilities, Lessor shall perform same at
Lessee's cost and expense and Lessee shall not perform any such
installation prior to the completion of any such structural
reinforcement. The installation of the Facilities shall be subject to
the provisions of Articles 5 and 6 applicable to alterations and
installations. For the purpose of installing, servicing or repairing the
Facilities, Lessee shall have access to the rooftop of the Building,
upon reasonable notice to Lessor, and Lessor shall have the right to
require, as a condition to such access, that Lessee (or its employee,
contractor or other representative) at all times be accompanied by a
representative of Lessor. Lessee shall pay for all electrical service
required for Lessee's use of the Facilities, in accordance with the
provision set forth in Article 22 hereof.
Lessee, at its sole cost and expense, shall promptly repair any and all
damage to the rooftop or to any other part of the Building caused by the
installation, maintenance and repair, operation or removal of the
Facilities. Lessee shall be responsible for all costs and expense for
repairs of the roof which result from Lessee's use of the roof for the
construction, installation, maintenance, repair, operation and use of
the Facilities. All installations made by Lessee on the rooftop or in
any other part of the Building pursuant to the provisions of this
Article 56 shall be at the sole risk of Lessee, and neither Lessor, nor
any agent or employee of Lessor, shall be responsible or liable for any
injury or damage to, or arising out of, the Facilities. Lessee's
indemnity under Article 33 shall apply with respect to the installation,
maintenance, operations, presence or removal of the Facilities by
Lessee.
Upon the expiration of the Term, the Facilities shall be removed by
Lessee at its sole cost and expense, and Lessee shall repair any damage
to the rooftop or any other portions of the Building to substantially
their condition immediately prior to Lessee's installation of the
Facilities (ordinary wear and tear excepted).
Notwithstanding anything to the contrary contained in this Article 56,
Lessor shall have the right, at Lessor's expense, on not less than
thirty (30) days' prior notice, to relocate the Facilities to another
location on the roof of the Building, such expense to include, without
limitation, the removal of the existing Facilities, the purchasing of
labor, materials and equipment necessary for the relocation thereof and
the reinstallation of the Facilities at such other location as
reasonably designated by Lessor on the roof of the Building, provided
that Lessor does not, except if work is reasonably required to be
performed on the roof or in the
30
Building, either materially interfere with or adversely affect the
receipt of and/or transmittal of microwaves or other similar signals,
and Lessee shall cooperate in all reasonable respects with Lessor in any
such relocations; provided, however, that if such relocation is done
pursuant to any legal requirement, the cost thereof shall be borne by
Lessee (unless such legal requirement relates to, or results from, other
actions taken, or permitted to be taken, by Lessor, in which event
Lessor shall bear all of the costs and expenses of such relocation).
The rights granted in this Article 56 are given in connection with, and
as part of the rights created under this Lease and are not separately
transferable or assignable.
If the installation of the Facilities or act or omission relating
thereto should revoke, negate or in any manner impair or limit any roof
warranty or guaranty obtained by Lessor, then Lessee shall reimburse
Lessor for any loss or damage sustained or costs or expenses incurred by
Lessor as a result of such impairment or limitation.
57. LESSOR'S INSURANCE:
During the Term, Lessor shall maintain the following insurance, insuring
Lessor and any mortgagee, as their respective interests may appear: (x)
insurance against damage to the Building and Office Building Area by all
risks of direct physical loss in an amount equivalent to the full
replacement cost thereof; (y) comprehensive general liability insurance
against claims for bodily injury and property damage occurring in or
about the Common Facilities in amounts customarily carried by owners of
similar buildings in the Xxxxxx County, New Jersey area; and (z)
insurance against such other hazards as, from time to time, are then
commonly insured against for buildings similarly situated in amounts
normally carried with respect thereto. All insurance maintained pursuant
to this Article 57 may be effected by blanket insurance policies.
58. OTHER AGREEMENTS:
Lessor shall deliver to Lessee, upon the execution of this Lease, the
written agreement of Xxxx-Xxxx Xxxxxx Realty L.L.C. ("MCMR"), in form
and substance reasonably satisfactory to Lessee, providing for: (i)
effective as of the Rent Commencement Date of this Lease, the
termination of that certain Lease, dated August 15, 2000, by and between
MCMR and The Medicines Company ("TMC"), and that certain Lease, dated
February 28, 2000, between MCMR and Stack Pharmaceuticals, Inc.,
assigned to TMC by Assignment and Assumption of Lease dated October 18,
2001, relating to premises located at 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx
Xxxxxx, in each case as if such termination were occurring upon the
respective expiration dates of such leases, and (ii) the extension of
the term of that certain Storage Space License, dated October 12, 2001,
between MCMR and TMC until the earlier of (x) the Expiration Date of
this Lease, or (y) such date as storage space, similar in size and
quality to the space which is the subject of such license, shall be
available in the Building for use by Lessee. If storage space in the
Building shall become available for leasing, Lessor shall use
commercially reasonable efforts to notify Lessee and Lessee shall have
fifteen (15) business days to accept Lessor's offer upon the terms and
conditions set forth in Lessor's offer. A failure of Lessor to notify
Lessee of the availability of such storage space shall not constitute
default under this Lease.
31
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under this Lease or make any claim that this Lease is invalid or
unenforceable due to any failure of this document to comply with ministerial
requirements including, but not limited to, requirements for corporate seals,
attestations, witnesses, notarizations, or other similar requirements, and each
party hereby waives the right to assert any such defense or make any claim of
invalidity or unenforceability due to any of the foregoing.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
LESSOR: LESSEE:
SYLVAN/ CAMPUS REALTY L.L.C THE MEDICINES COMPANY
By: Grove Street Associates of Jersey City
Limited Partnership, member
By: Xxxx-Xxxx Sub IV, Inc., its general
partner
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Vice President - Leasing Title: Chief Financial Officer
32
EXHIBIT A
LOCATION OF PREMISES
Exhibit A - Page 1
EXHIBIT X-0
XXXXXX XXXXXXXX XXXX
All that certain lot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Township of
Parsippany-Xxxx Hills, County of Xxxxxx, State of New Jersey:
BEGINNING at an iron pipe at a corner common to Lot 3.10 and Lot 3.11 Block 202
on the easterly right-of-way line of Hilton Court as shown on a map entitled
"Final Plat of Prudential Business Campus, Block 202, Lots 3.02 thru 3.12 Tax
Map Sheet Nos. 62 & 63, 66 & 67, 69 & 70, situated in Parsippany-Xxxx Hills
Township, Xxxxxx County, New Jersey, Sheet 1 of 2" prepared by Xxxxxxxxx and
Xxxxxxx, Xxxxxxx X. Xxxxxxx, P.E. & L.S., N.J. License No. 8456. Said map being
filed in the Xxxxxx County Clerk's Office on April 29, 1980 as Map #3908; thence
1. Along the easterly right-of-way line of Hilton Court on the arc of a
curve to the left having a radius of 525.00 feet, an arc length of
118.00 feet and a central angle of 12? 52' 40" to a point of tangency;
thence
2. Continuing along same, N 08? 47' 00" E 490.89 feet to a point of
curvature; thence
3. Along the arc of a curve to the right having a radius of 90.00 feet, an
arc length of 141.37 feet and a central angle of 90? 00' 00" to a
concrete monument at a point of tangency on the southerly right-of-way
line of Campus Drive; thence
4. Along same, S 81 (degree) 12' 00" E 455.00 feet to a concrete monument
at a point of curvature; thence
5. Along the arc of a curve to the right having a radius of 40.00 feet, an
arc length of 62.83 feet and a central angle of 90 (degree) 00' 00", to
a concrete monument at a point of tangency; thence along the westerly
right-of-way line of Xxxxxx Way on the following three courses:
6. S 08 (degree) 47' 00" W 704.33 feet to a concrete monument; thence
7. N 81 (degree) 13' 00" W 2.00 feet to a concrete monument; thence
8. S 08 (degree) 47' 00" W 89.88 feet to an iron pipe; thence
9. Along a line common to Lot 3.10 and Xxx 0.00, Xxxxx 000, X 00 (xxxxxx)
20' 20" W 611.59 feet to the point of BEGINNING.
All that certain tract, or parcel of land and premises, hereinafter particularly
described, situate, lying and being in the Township of Parsippany-Xxxx Hills, in
the County of Xxxxxx, and the State of New Jersey:
BEGINNING at the point of intersection of the projection of the westerly
sideline of Parsippany Road and the northerly sideline of Xxxxxxx'x Road,
running thence South 85 (degree) 19' 57" West 96.53 feet to the true point Of
the beginning and running thence;
(1) Along the northerly sideline of said Xxxxxxx'x Road, 60 feet wide, South
85 (degree) 19' 57" West 393.30 feet; thence
(2) North 53 (degree) 22' 15" West 238.00 feet; thence
(3) North 50 (degree) 43' 10" West 216.33 feet; thence
(4) North 39 (degree) 16'50" East 134.14 feet along southeasterly sideline
of Interstate Route 287 (formerly U.S. Route 202) as shown on a plat
entitled "New Jersey State Highway Department General Property Parcel
Map Route U.S. 202 Freeway Section 1" sheets 1 through 4 dated December,
1953 and filed in the Xxxxxx County Clerk's Office on February 18, 1955
as Map No. 1560-F; thence
Exhibit A - Page 1
(5) At right angles to said Interstate Route 287 South 50 (degree) 43' 10"
East 5.00 feet; thence
(6) At right angles to the previous course and along the southerly sideline
of said Interstate 287 as shown on a plat entitled "New Jersey State
Highway Department General Property Parcel Map Route U.S. 202 Freeway
Section 1" sheets 1 through 4 dated December, 1953 and filed in the
Xxxxxx County Clerk's Office on February 18, 1955 as Map No. 1560-F,
North 39 (degree) 16' 50" East 355.00 feet; thence
(7) Leaving the southeasterly sideline of said Xxxxxxxxxx Xxxxx 000, Xxxxx
00 (degree) 16' 50" East 135.00 feet; thence
(8) South 67 (degree) 43' 10" East 145.00 feet; thence
(9) South 50 (degree) 43' 10" East 105.00 feet; thence
(10) South 30 (degree) 43' 10" East 75.00 feet; thence
(11) South 18 (degree) 24' 25" East 361.30 feet along the westerly sideline
of Parsippany Road; thence
(12) Along the westerly sideline of Parsippany Road, South 17 (degree) 35'
00" East 44.13 feet; thence
(13) South 51 (degree) 30' 00" West 100.73 feet; to the point of BEGINNING.
The forgoing premises are shown on a survey make by Couvrette Associates Inc.
Consulting Engineers, Rockaway, New Jersey, dated September 21, 1978, last
revised to April 1, 1992 showing Xxx 0, Xxxxx 000, Xxx Xxxx Xxxxxxxx xx
Xxxxxxxxxx-Xxxx Hills, Xxxxxx County, New Jersey.
The foregoing survey reference shall not be deemed or construed to limit or
diminish the estate more particularly described above and encumbered hereby.
Exhibit A - Page 2
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by
Lessee for any purpose other than ingress and egress. If the Premises
are situated on the ground floor with direct access to the street, then
Lessor shall, at Lessor's expense, keep the sidewalks and curbs directly
in front of the Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or
windows of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window xxxxx of
the Building or otherwise affixed so as to project from the Building,
without prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of
the outside of the Premises, or any part of the inside of the Premises
so as to be clearly visible from the outside of the Premises, without
the prior written consent of Lessor, which consent shall not be
unreasonably withheld or delayed. However, Lessee shall have the right
to place its name on any door leading into the Premises the size, color
and style thereof to be subject to the Lessor's approval. Lessee shall
not have the right to have additional names placed on the Building
directory without Lessor's prior written consent.
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor of
the Premises. If linoleum or other similar floor covering is desired to
be used, an interlining of builder's deadening felt shall first be fixed
to the floor by a paste or other material that may easily be removed
with water, the use of cement or other similar adhesive material being
expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or
permit to be made, any unseemly or disturbing noises or odors and shall
not interfere with other tenants or those having business with them.
Lessee will keep all mechanical apparatus in the Premises free of
vibration and noise which may be transmitted beyond the limits of the
Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee. Lessee shall, on the termination
of Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in the
event of the loss of any keys furnished, Lessee shall pay to Lessor the
cost thereof. Lessee, before closing and leaving the Premises, shall
ensure that all windows are closed and entrance doors locked. Nothing in
this Paragraph 7 shall be deemed to prohibit Lessee from installing a
burglar alarm within the Premises, provided: (1) Lessee obtains Lessor's
consent which will not be unreasonably withheld or delayed; (2) Lessee
supplies Lessor with copies of the plans and specifications of the
system; (3) such installation shall not damage the Building; and (4) all
costs of installation shall be borne solely by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
toilet articles, waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electrical fixtures,
removal of waste paper, rubbish, garbage, or other like service shall be
entered into by Lessee, nor shall any machine of any kind be installed
in the Building or the Office Building Area (other than ordinary office
equipment) without the prior written consent of the Lessor. Lessee shall
not employ any persons other than Lessor's janitors for the purpose of
cleaning the Premises without prior written consent of Lessor. Lessor
shall not be responsible to Lessee for any loss of property from the
Premises however occurring, or for any damage to the effects of Lessee
by such janitors or any of its employees, or by any other person or any
other cause.
Exhibit B - Page 1
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store
goods, wares or merchandise upon the Premises without the prior written
approval of Lessor, except the storage of usual supplies and inventory
to be used by Lessee in the conduct of his business, permit the Premises
to be used for gambling, make any unusual noises in the Building, permit
to be played musical instrument on the Premises, permit any radio to be
played, or television, recorded or wired music in such loud manner as to
disturb or annoy other tenants, or permit any unusual odors to be
produced on the Premises. Lessee shall not permit any portion of the
Premises to be occupied as an office for a public stenographer or
typewriter, or for the storage, manufacture, or sale of intoxicating
beverages, narcotics, tobacco in any form or as a xxxxxx or manicure
shop. Canvassing, soliciting and peddling in the Building and the Office
Building Area are prohibited and Lessee shall cooperate to prevent the
same. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed;
and no sweepings, rubbish, ashes, newspaper or other substances of any
kind shall be thrown into them. Waste and excessive or unusual amounts
of electricity or water is prohibited. When electric wiring of any kind
is introduced, it must be connected as directed by Lessor, and no
stringing or cutting of wires will be allowed, except by prior written
consent of Lessor, and shall be done by contractors approved by Lessor.
The number and locations of telephones, telegraph instruments,
electrical appliances, call boxes, etc. shall be subject to Lessor's
approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out
of freight, furniture or bulky matter of any description must take place
during such hours as Lessor may from time to time reasonably determine
and only after advance notice to the superintendent of the Building. The
persons employed by Lessee for such work must be reasonably acceptable
to the Lessor. Lessee may, subject to these provisions, move freight,
furniture, bulky matter, and other material into or out of the Premises
on Saturdays between the hours of 9:00 a.m. and 1:00 p.m., provided
Lessee pays additional costs, if any, incurred by Lessor for elevator
operators or security guards, and for any other expenses occasioned by
such activity of Lessee. If, at least three (3) days prior to such
activity, Lessor requests that Lessee deposit with Lessor, as security
of Lessee's obligations to pay such additional costs, a sum of which
Lessor reasonably estimates to be the amount of such additional cost,
the Lessee shall deposit such sum with Lessor as security of such cost.
There shall not be used in the Building or Premises, either by Lessee or
by others in the delivery or receipt of merchandise, any hand trucks
except those equipped with rubber tires and side guards, and no hand
trucks will be allowed in the elevators without the consent of the
superintendent of the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe
condition from arising.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the
reputation of the Building or its desirability as a building for
offices, and upon written notice from Lessor, Lessee shall refrain from
or discontinue such advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Lessor shall not
be responsible to Lessee for non-observance or violation of any of these
rules and regulations by any other tenant.
15. AFTER HOURS USE: Lessor reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturdays, Sundays and Building Holidays, all persons who do not present
a pass to the Building signed by the Lessee. Each Lessee shall be
responsible for all persons for whom such a pass is issued and shall be
liable to the Lessor for the acts of such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area designated by Lessor.
Exhibit B - Page 2
17. Lessor hereby reserves to itself any and all rights not granted to
Lessee hereunder, including, but not limited to, the following rights
which are reserved to Lessor for its purposes in operating the Building:
a) the exclusive right to the use of the name of the Building for
all purposes, except that Lessee may use the name as its
business address and for no other purposes; and
b) the right to change the name or address of the Building, without
incurring any liability to Lessee for doing so; and
c) the right to install and maintain a sign on the exterior of the
Building; and
d) the exclusive right to use or dispose of the use of the roof of
the Building; and
e) the right to limit the space on the directory of the Building to
be allotted to Lessee; and
f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
18. The Lessee shall be responsible for initiating, maintaining and
supervising all health and safety precautions and/or programs required
by Law in connection with the Lessee's use and occupancy of the
Premises.
19. The Lessee shall not store, introduce or otherwise permit any material
known to be hazardous within the Premises, other than normal office
cleaners and substances used in ordinary office machines. Any material
within the Premises which is determined to be hazardous shall be removed
and properly disposed of by the Lessee at the Lessee's sole expense.
-- END --
Exhibit B - Page 3
EXHIBIT C
LESSEE'S WORK AND ALTERATIONS
1. Lessee may make the alterations required for Lessee's use of the
Premises (hereinafter the "Work") after the Commencement Date subject to
the following:
a. Lessee, at its sole cost and expense, shall prepare and submit
to Lessor, for Lessor's and governmental approval, the following
descriptive information, detailed architectural and engineering
drawings and specifications (hereinafter the "Plans") for the
Work. The Plans shall be as complete and finished as required to
completely describe the Work and shall include, but not be
limited to, the following:
i. Demolition Plans depicting all existing conditions to be
removed, abandoned or cut patched.
ii. Architectural floor plans depicting partition locations
and types; door location, size, and hardware types.
iii. Structural plans, if required, depicting new structural
components and their connections to existing elements.
iv. Electrical plans depicting all new and existing
electrical wiring, devices, fixtures and equipment.
v. Mechanical plans depicting all new plumbing, piping,
heating, ventilating, air conditioning equipment, and
duct work and its connections to existing elements.
vi. Life Safety System plans depicting all new or altered
alarm system fixtures, devices, detectors and wiring
within the Premises and their connection to existing
systems.
vii. Coordinated reflected ceiling plan showing ceiling
systems and materials and all of the above items and
their proximity to one another.
viii. Finish plans showing locations and types of all interior
finishes with a schedule of all proposed materials and
manufacturers.
The Plans shall provide for all systems and construction
components complying with the requirements of all governmental
authorities and insurance bodies having jurisdiction over the
Building.
b. The Plans for the Work are subject to Lessor's prior written
approval which shall not be unreasonably withheld, provided,
however, that Lessor may in any event disapprove the Plans if
they are incomplete, inadequate or inconsistent with the terms
of the Lease or with the quality and architecture of the
Building. Lessor agrees to approve or disapprove the Plans
within three (3) business days of receipt of same (the "Lessor's
Approval Period"). If Lessor disapproves the Plans or any
portion thereof, Lessor shall promptly notify Lessee thereof and
of the revisions which Lessor reasonably requires in order to
obtain Lessor's approval Lessee shall, at its sole cost and
expense, submit the Plans, in such form as may be necessary,
with the appropriate governmental agencies for obtaining
required permits and certificates. Any changes required by any
governmental agency affecting the Work or the Plans shall be
complied with by Lessee in completing said Work at Lessee's sole
cost and expense. Lessee shall submit completed Plans to Lessor
simultaneously with Lessee's submission of said plans to the
local building department.
2. Lessor shall permit Lessee to solicit competitive pricing and select its
own general and/or individual subcontractors to perform the Work at its
sole cost
a. All general contractors shall be subject to Lessor's prior
written approval, which shall not be unreasonably withheld.
Lessor hereby approves Interior Resource Group as
Exhibit C - Page 1
Lessee's general contractor for the Work.
b. Lessee shall instruct all approved general contractors to
exclusively use Lessor's Base Building Sub-Contractors for
heating, ventilation, air conditioning, electrical, fire
suppression and life safety systems (hereinafter "Building
Systems"). Other subcontractors may be used only when
specifically approved in writing by Lessor, which approval shall
not be unreasonably withheld or delayed.
c. The Base Building Sub-Contractors and their respective trades
are set forth in Paragraph 6 below.
d. Lessee notifies Lessor in writing of Lessee's selection of
general and subcontractors.
e. All costs associated with the biding process soliciting
competitive pricing will be at the sole cost and expense of the
Lessee.
f. Lessee's workmen and mechanics shall work in harmony and not
interfere with the labor employed by Lessor, Lessor's mechanics
or contractors or by any other occupant of the Building or their
mechanic or contractors, if any. If at any time Lessee and/or
its contractors cause disharmony or interference with the
operation of the Building, Lessor shall give forty-eight (48)
hours written notice to Lessee and within twenty-four (24) hours
Lessee shall resolve any dispute so that the tenor of the
construction process and the operation of the Building is
returned to that which existed prior to Lessor's notice. Such
entry by Lessee's contractors shall be deemed controlled by all
of the terms, covenants, provisions and conditions of the Lease.
g. Prior to the commencement of the Work, Lessee shall provide
Lessor with evidence of Lessee's contractors and sub-contractors
carrying such worker's compensation, general liability, personal
and property insurance required by law and in amounts no less
than the amounts set forth in Paragraph 7 herein. Lessor shall
not be liable in any way for any injury, loss or damage which
may occur to any portion of the Work, Lessee's decorations, or
installments so made, the same being solely at Lessee's risk.
h. In the event Lessor approves the use of subcontractors other
than Lessor's Base Building sub-contractors, all proposed
Building System work, including the preparation of the plans and
specifications identified herein, shall be approved by Lessor's
engineers (the "Engineering Review"), and any cost thereof shall
be Lessee's responsibility.
i. Lessor shall afford Lessee and its contractors the opportunity
to use the Building facilities at reasonable cost in order to
enable Lessee and its contractors to perform the Work, provided
however, that Lessee and its contractors shall remain
responsible for the scheduling and transportation of materials
and equipment used in the performance of such work. Lessee shall
give Lessor adequate prior notice with regard to the scheduling
and transportation of materials in and out of the Building.
Lessor shall furnish, at Lessor's expense, water, electricity,
heat and ventilation during the performance of the Work during
regular construction trade hours of 8:00 a.m. to 5:00 p.m.,
Monday through Friday, exclusive of trade holidays. Scavenger
service shall be provided by Lessor at Lessee's expense.
j. All plans, changes to the plans and work installed by Lessee and
its sub-contractors shall require inspections to be made by
Lessor's Base Building Sub-Contractors at Lessee's or Lessee's
contractors expense (the "Inspection Fees"). The Base Building
Sub-Contractors shall supply Lessor with certification that work
so preformed has been completed in accordance with the Plans
which have been previously approved by Lessor. If a Base
Building Sub-Contractor is selected and actually installs the
work, the Inspection Fees described in this paragraph with
respect to such work shall not be required.
k. Lessee shall be responsible for all cleaning and removal of
debris necessitated by the performance of the Work. If Lessee
fails to provide such cleaning and removal, the same may be
performed by Lessor on Lessee's behalf and Lessee will pay
Lessor an amount equal to the contractor's charge therefore,
plus twenty percent (20%) thereof.
Exhibit C - Page 2
l. Neither the outside appearance nor the strength of the Building
or of any of its structural parts shall be affected by the Work.
m. The proper functioning of any of the Building Systems shall not
be adversely affected or the usage of such systems by Lessee
shall not be materially increased above the projected usage of
such systems indicated by the current plans and specifications
of the Building.
n. Lessee and its general and sub-contractors shall be bound by and
observe all of the conditions and covenants contained in the
Lease and this Exhibit X.
x. Xxxxxx shall designate a "Project Manager" as its representative
in the Building who shall be responsible for coordination and
supervision of the Work as it pertains to the daily operation of
the Building. The Project Manager and his subordinates shall be
granted access to the Premises at all times during the
construction period.
p. Lessee agrees to pay Lessor three percent (3%) of the contract
awarded to Lessee's general contractor and/or any subcontractors
to reimburse Lessor for coordination, supervision, and utility
costs.
3. Intentionally Omitted
4. Any part of the Work within the Premises shall become the property of
the Lessor upon installation. Furthermore, with respect to any material
and installation which is part of the Work, Lessee shall not be entitled
to remove, pledge or sell same unless otherwise agreed to in writing by
Lessor and Lessee. No refund, credit, or removal of said items shall be
permitted at the termination of the Lease. Items installed that are not
integrated in any such way with other common building materials do not
fall under this provision (Example: shelving, furniture, trade
fixtures).
5. Lessor shall provide a cash contribution of THREE HUNDRED SIXTY-NINE
THOUSAND ONE HUNDRED THIRTY-EIGHT AND 00/100 DOLLARS ($369,138.00)
("Lessor's Construction Allowance") for payment of the costs associated
with the completion of The Work. Lessor's Construction Allowance shall
be payable within fifteen (15) business days of Lessor's receipt of the
following:
a. Copy of the Certificate of Occupancy (temporary and permanent)
issued by the local construction official;
b. AIA Document G704, Certificate of substantial completion issued
and signed by Lessee's Architect;
c. Release of Lien statements from the general and all
sub-contractors associated with the Work; and
d. Lessee shall provide Lessor a set of reproducible drawings of
the Plans and a "CAD" file (in .DWG or .DXF format) of the
"As-Built" Plans.
6. The Base Building Sub-Contractors are:
FIRE SPRINKLER CONTRACTOR
"To be provided by Lessor upon request from Lessee."
ELECTRICAL CONTRACTOR
"To be provided by Lessor upon request from Lessee."
PLUMBING CONTRACTOR
"To be provided by Lessor upon request from Lessee."
HVAC CONTRACTOR
"To be provided by Lessor upon request from Lessee."
7. Lessee's Contractor's Insurance:
Exhibit C - Page 3
a. The Lessee shall require any and all contractors of the Lessee
performing work on or about the Premises to obtain and/or
maintain specific insurance coverage for events which could
occur while operations are being performed and which could occur
after the completion of the work. The insurance coverage of the
contractor shall be at least equal to the coverage required by
Article 30 of the Lease and the contractor shall name Lessor
and, if requested, Mortgagee as additional insureds on all
policies of liability insurance.
b. The contractor shall purchase and maintain such insurance as
will protect itself and Lessor and Lessee from claims set forth
below which may arise out of or result from its operations under
the contract and after contract completion with Lessee, whether
such operations are performed by the contractor or by any
subcontractor or by anyone directly or indirectly employed by
any of them or by anyone for whose acts any of them may be
liable. The insurance coverage shall include but not be limited
to protection for:
i. Claims under Workers or Workmens Compensation,
Disability Benefits, and other Employee Benefit Acts;
ii. Claims for damages because of bodily injury,
occupational sickness, disease or death of its
employees;
iii. Claims for damages because of bodily injury, sickness,
disease, or death of any person other than its
employees;
iv. Claims for damages insured by the usual personal injury
liability coverages which are sustained by (i) any
person as a result of an offense directly or indirectly
related to the employment of such person by the
contractor, or (ii) by any other person;
v. Claims for damages, other than to the work itself,
because of injury to or destruction of tangible
property, including loss of use resulting therefrom;
vi. Claims for damages because of bodily injury or death of
any person and/or property damage arising out of the
ownership, maintenance, or use of any motor vehicle; and
vii. Claims which include the foregoing, but not limited
thereto, which may occur while operations are being
performed and claims which may occur after operations
are completed.
c. Lessee shall secure evidence of Lessee's contractor's insurance coverage
adequate to protect Lessor and Lessee.
d. The contract between the Lessee and its contractor shall require
that the Lessee's contractor hold the Lessor harmless in a form
and manner equal to the indemnity agreement in Article 33,
"Indemnity" of the Lease agreement.
e. Lessee shall cause to be executed a waiver of all rights their
contractors have or may have against Lessor and any Mortgagee
involved in the Premises in any way, for damages caused by fire
or other perils so insured.
f. If request by Lessor, Lessee shall obtain and furnish surety in
a form satisfactory to Lessor, covering the faithful performance
of the work and the payment of all obligations arising
thereunder.
8. All sums payable by Lessee to Lessor in connection with this Exhibit C
and any other work to be performed by Lessor within the Premises and
billable to Lessee shall be deemed Additional Rent.
-END-
Exhibit C - Page 4
Exhibit C - Page 5
EXHIBIT C - 1
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the building air-conditioning system for
cooling and heating in the air in the subject building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than 76
degrees (24.4 degrees C) when the outdoor dry bulb temperature is lower
than 65 degrees F (18 degrees C) but not lower than 0 degrees F (-13
degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature
of not more than 78 degrees F when the outside dry bulb temperature is
95 degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature
is below 55 degrees (13 degrees C), cooling will be provided by outside
air usage in conjunction with operating of return air, outside air and
exhaust air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per
square foot of rentable area, and between .20 and 1.0 cubic feet of
total air per minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from (i) the occupancy of the Premises
with more than an average of one (1) person for each one hundred (100)
usable square feet of floor area (ii) the installation or operation by
Lessee of machines and appliances, the installed electrical load of
which when combined with the load of all lighting fixtures exceeds five
(5) xxxxx per square foot of floor area and in any manner exceeding the
aforementioned occupancy and electrical load criteria, or (iii)
rearrangement of partitioning after the initial preparation of the
Premises. If interference with normal operation of the air-conditioning
system in the Premises results, necessitating changes in the air
conditioning system servicing the Premises, such changes shall be made
by Lessor upon written notice to Lessee at Lessee's sole cost and
expense. Lessee agrees to lower and close window coverings when
necessary because of the sun's position whenever the air conditioning
system is in operation, and Lessee agrees at all times to cooperate
fully with Lessor and to abide by all the Rules and Regulations attached
hereto as well as reasonable rules and regulations which Lessor may
hereafter prescribe involving the air-conditioning system.
-- END --
Exhibit C-1 - Page 1
EXHIBIT D
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets, etc.
shall be dusted with a clean treated dust cloth whenever necessary and
only if such surfaces are clear of Lessee's personal property including
but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window xxxxx are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets will
not be removed. Lessee is responsible to place such unusual refuse in
trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups
or similar containers. If such liquids are spilled in waste baskets, the
waste baskets will be emptied but not otherwise cleaned. Lessor will not
be responsible for any stained carpet caused from liquids leaking or
spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or
glass partitions are excluded. Lessee may make arrangements for same
with Lessor's cleaning maintenance company.
COMMON AREAS
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile flooring.
Hard surface floors such as quarry tile, etc., shall be cleaned nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any
piping and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal
detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles in
a clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
EXHIBIT E
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
-- END --
Exhibit E - Page 1
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is the Lessee (Tenant) under that certain Lease dated
____________by and between __________ as Lessor (Landlord) and
__________ as Lessee, covering those certain premises commonly known and
designated as ____r.s.f. on the ____( ) floor of _________________,NJ.
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and the Lessor affecting said
premises. If none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments
or any other type of rental concession (except as indicated following
this sentence). If none, state "none".
4. The undersigned has accepted and now occupies the premises, and is and
has been open for business since_________, 200_. The Lease term
began________, 2002, and the rent for said premises has been paid to and
including_____________, 2002 in conformity with this Lease agreement. No
rent has been prepaid for more than two (2) months. The fixed minimum
rent being paid as above is $ __________ per month. If Lessee is not in
full possession, whether Lessee has assigned the Lease, sublet all or
any portion of the Premises, or otherwise transferred any interest in
the Lease or the Premises, Lessee agrees to provide a copy of such
assignment, sublease, or transfer upon request.
5. The Lease is not in default and is in full force and effect. As of the
date hereof, the undersigned is entitled to no credit, no free rent and
no offset or deduction in rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in
accordance with the terms of the Workletter attached to Lease as Exhibit
C.
7. The Lease does not contain and the undersigned doesn't have any
outstanding options or rights of first refusal to purchase the premises
or any part thereof or the real property of which the premises are a
part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any State
thereof.
9. There are currently no valid defenses, counterclaims, off-sets, credits,
deductions in rent, or claims against the enforcement of any of the
agreements, terms, or conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one of
its affiliates hereunder and that pursuant to the terms thereof (i) all
rental payments under said Lease shall continue to be paid to Lessor in
accordance with the terms of the Lease unless and until you are
otherwise notified in writing by MORTGAGEE, or its successor or assigns
and (ii) no modification, revision, or cancellation of the Lease or
amendments thereto shall be effective unless a written consent thereto
of such mortgagee is first obtained.
11. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Lessee.
Dated this ________ day of __________________, 2002
LESSEE:
------------------------------------
Name:
Title:
Exhibit F - Page 1
EXHIBIT G
RENT COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
THIS AGREEMENT made the _________day of ________, 2002 is by and between
________________ (hereinafter "Lessor") whose address is c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and
_________________________ (hereinafter "Lessee") whose address is
________________________________________.
2.0 STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated ____________, 2002
(hereinafter "Lease") setting forth the terms of occupancy by
Lessee of approximately ________ rentable square feet on the
_____ (___) floor (hereinafter "Premises") at
_____________________________ (hereinafter "Building"); and
2.2 The Term of the Lease is ten (10) years with the Rent
Commencement Date being defined in the Preamble to the Lease as
being subject to certain alternatives; and
2.3 It has been determined that ___________, 2002 is the Rent
Commencement Date of the Lease.
3.0 STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, it is agreed:
3.1 The Rent Commencement Date of the Lease is ___________ , and the
Expiration Date thereof is _____________ , and the Lease
Preamble Articles 6 shall be deemed modified accordingly.
3.2 This Agreement is executed by the parties hereto for the purpose
of providing a record of the Rent Commencement Date and
Expiration Dates of the Lease.
EXCEPT as modified herein, the Lease covering the Premises shall remain
in full force and effect as if the same were set forth in full herein and Lessor
and Lessee hereby ratify and confirm all the terms and conditions thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, successors and
permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
LESSOR LESSEE
By: By:
------------------------------ ------------------------------
Xxxxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
Exhibit G - Page 1
EXHIBIT H
LETTER OF CREDIT
[DATE]
TO:
[Name of Beneficiary]
[Address]
Re: Irrevocable Letter of Credit
Gentlemen:
By order of our client, _________________________, we hereby establish
our irrevocable Letter of Credit No. ______ in your favor for a sum or sums not
to exceed $__________________- (_________________U.S. Dollars) in the aggregate,
effective immediately.
This Letter of Credit shall be payable in immediately available funds in
U.S. Dollars. Funds under this credit are payable to you upon your presentation
to us a sight draft drawn on us in the form annexed hereto. All drafts must be
marked: "Drawn under Letter of Credit No. ____ of [Name of Issuing Bank].
This Letter of Credit shall expire twelve (12) months from the date
hereof; but is automatically extendable, so that this Letter of Credit shall be
deemed automatically extended, from time to time, without amendment, for one
year from the expiration date hereof and from each and every future expiration
date, unless at least sixty (60) days prior to any expiration date we shall
notify you by registered mail that we elect not to consider this Letter of
Credit renewed for any such additional period. The final expiration date hereof
shall be no EARLIER than [fill in suitable date after expiration of lease].
This Letter of Credit is transferable and may be transferred one or more
times. However, no transfer shall be effective unless advice of such transfer is
received by us in our standard form.
We hereby agree to honor each draft drawn under and in compliance with
this Letter of Credit, if duly presented at our offices at ____________________
or at any other of our offices.
This Letter of Credit is subject to the International Standby Practices
1998, International Chamber of Commerce Publication No. 590.
[Name of Bank]
By:
[Annex Bank's Form of Sight Draft]
Exhibit H- Page 1
EXHIBIT I
EXCLUSIONS FROM OPERATING COSTS
(1) Any ground lease rental;
(2) Costs of items considered capital repairs, replacements,
improvements and equipment under generally accepted accounting principles
consistently applied or otherwise, except as set forth below ("Capital Items");
(3) Rentals for items (except when needed in connection with normal
repairs and maintenance of permanent systems) which if purchased, rather than
rented, would constitute a Capital Item which is specifically excluded in (2)
above (excluding, however, equipment not affixed to the Building which is used
in providing janitorial or similar services);
(4) Costs incurred by Lessor for the repair of damage to the
Building to the extent that Lessor is or should be reimbursed by insurance
proceeds, regardless of whether such repairs are covered by insurance;
(5) Costs, including permit, license and inspection costs, incurred
with respect to the installation of tenant or other occupants' improvements in
the Building or incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or other occupants of the
Building;
(6) Depreciation, amortization, and interest payments, except as
provided herein and except on materials, tools, supplies, and vendor-type
equipment purchased by Lessor to enable Lessor to supply services Lessor might
otherwise contract for with a third party when such depreciation, amortization
and interest payments 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, and when depreciation or
amortization is permitted or required, the item shall be amortized over its
reasonably anticipated useful life;
(7) Marketing costs, including without limitation, leasing
commissions, attorneys' fees in connection with the negotiation and preparation
of letters, deal memos, letters of intent, leases, subleases and/or assignments,
space planning costs, and other costs and expenses incurred in connection with
lease, sublease and/or assignment negotiations and transactions with Lessee or
present or prospective tenants or other occupants of the Building;
(8) Expenses for services or other benefits that are not offered to
Lessee or for which Lessee is charged for directly but that are provided to
another tenant or occupant of the Building;
(9) Costs incurred by Lessor because of the violation by Lessor or
any tenant of the terms and conditions of any lease of space in the Building;
(10) Overhead and profit increment paid to Lessor or to subsidiaries
or affiliates of Lessor for goods and/or services in or to the Building to the
extent the same exceeds the costs of such goods and/or services rendered by
unaffiliated third panics on a competitive basis;
(11) Interest, principal, points and fees on debts or amortization on
any mortgage or mortgages or any other debt instrument encumbering the Building
or the Land;
(12) Lessor's general corporate overhead and general and
administrative expenses;
(13) Any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Lessor or in the parking garage of the
Building or wherever Lessee is granted its parking privileges and/or all fees
paid to any parking facility operator;
(14) Rentals and other related expenses incurred in leasing HVAC
systems, elevators or
Exhibit I- Page 1
other equipment ordinarily considered to be Capital Items, except for (a)
expenses in connection with making repairs on or keeping such Building systems
in operation while repairs are being made and (b) costs of equipment not affixed
to the Building which is used in providing janitorial or similar services;
(15) Advertising and promotional expenditures, and costs of signs in
or on the Building identifying the owner of the Building;
(15A) The cost of any electrical power used by any tenant in the
Building in excess of the Building-standard amount, or electric power costs for
which any tenant directly contracts with the local public service company or for
which any tenant is separately metered or submetered and pays Lessor directly;
(16) Services and utilities provided, taxes attributable to, and
costs incurred in connection with the operation of the retail and restaurant
operations in the Building, except to the extent the square footage of such
operations are included in the rentable square feet of the Building and do not
exceed the services, utility and tax costs that would have been incurred had the
retail and/or restaurant space been used for general office purposes;
(17) Costs incurred in connection with upgrading the Building to
comply with life, fire and safety codes, ordinances, statutes or other laws in
effect before the Commencement Date, including, without limitation, the ADA,
including penalties or damages incurred because of that non-compliance;
(18) Tax penalties incurred as a result of Lessor's failure to make
payments and/or to file any tax or informational returns when due;
(19) Costs for which Lessor has been compensated by a management fee,
and any management fees in excess of those management fees which are normally
and customarily charged by landlords of comparable buildings;
(19A) Costs arising from the negligence or fault of other tenants or
Lessor or its agents, or any vendors, contractors, or providers of materials or
services selected, hired or engaged by Lessor or its agents including, without
limitation, the selection of Building materials;
(20) Notwithstanding any contrary provision of the Lease, including,
without limitation, any provision relating to capital expenditures, any and all
costs arising from the presence of hazardous materials or substances (as defined
by applicable laws in effect on the date this Lease is executed) in or about the
Premises, the Building or the Office Building Area including, without
limitation, hazardous substances in the ground water or soil, not placed in the
Premises, the Building or the Land by Lessee;
(21) Costs arising from Lessor's charitable or political
contributions;
(22) Costs arising from defects in the base, shell, or core of the
Building or improvements installed by Lessor or repair thereof;
(23) Costs for the acquisition of (as contrasted with the maintenance
of) sculpture, paintings, or other objects of art;
(24) Costs (including in connection therewith all attorneys' fees and
costs of settlement judgments and payments in lieu thereof) arising from claims,
disputes or potential disputes in connection with potential or actual claims
litigation or arbitrations pertaining to Lessor and/or the Building and/or the
Office Building Area;
(25) Costs associated with the operation of the business of the
partnership or entity which constitutes Lessor as the same are distinguished
from the costs of operation of the Building, including partnership accounting
and legal matters, costs of defending any lawsuits with or claims by any
mortgagee (except as the actions of Lessee may be in issue), costs of selling,
syndicating, financing, mortgaging or hypothecating any of Lessor's interest in
the Building, costs of any disputes between Lessor and its employees (if any)
not engaged in Building operation, disputes of Lessor with
Exhibit I- Page 4
Building management, or outside fees paid in connection with disputes with other
tenants;
(26) Costs of any "tap fees" or any sewer or water connection fees
for the benefit of any particular tenant in the Building;
(27) Costs incurred in connection with any environmental clean-up,
response action, or remediation on, in, under or about the Premises or the
Building or the Office Building Area, including but not limited to, costs and
expenses associated with the defense, administration, settlement, monitoring or
management thereof;
(28) Any expenses incurred by Lessor for use of any portions of the
Building to accommodate events including, but not limited to shows, promotions,
kiosks, displays, filming, photography, private events or parties, ceremonies,
and advertising beyond the normal expenses otherwise attributable to providing
Building services, such as lighting and HVAC to such public portions of the
Building in normal Building operations during standard Building hours of
operation;
(29) Any entertainment, dining, or travel expenses for any purpose;
(30) Any flowers, gifts, balloons, etc. provided to any entity
whatsoever, to include, but not limited to, Lessee, other tenants, employees,
vendors, contractors, prospective tenants, and agents;
(31) Any "validated" parking for any entity;
(32) Any "finders' fees," brokerage commissions, job placement costs,
or job advertising cost;
(33) Any "above-standard" cleaning, including, but not limited to
construction cleanup or special cleanings associated with parties/events and
specific tenant requirements in excess of service provided to Lessee, including
related trash collection, removal, hauling and dumping;
(34) The cost of any magazine, newspaper, trade or other
subscriptions;
(35) The cost of any training or incentive programs, other than for
tenant life safety information services;
(36) The cost of any "tenant relations" parties, events or promotion
not consented to by an authorized representative of Lessee in writing;
(37) "In-house" legal and/or accounting fees; and
(38) Reserves for bad debts or for future improvements, repairs,
additions, etc.; and
It is understood that Operating Costs shall be reduced by all cash
discounts, trade discounts, quantity discounts, rebates, or other amounts
received by Lessor or Lessor's managing agent in the purchase of any goods,
utilities, or services in connection with the operation of the Building. Lessor
shall make payments for goods, utilities, or services in a timely manner to
obtain the maximum possible discount. If Capital Items which are customarily
purchased by landlords of comparable buildings are leased by Lessor, rather than
purchased, the decision by Lessor to lease the item in question shall not serve
to increase Lessee's Percentage of Operating Costs beyond that which would have
applied had the item in question been purchased.
If any facilities, services, or utilities used for the Building are
provided from another building owned or operated by Lessor or vice versa, the
costs incurred by Lessor for those facilities, services, or utilities shall be
allocated to Operating Costs by Lessor on a reasonably equitable basis.
If any repair, replacement or improvement within the definition of
Operating Costs is capitalized under generally accepted accounting principles,
then (A) the cost of any such repair, replacement or improvement shall only be
included in Operating Costs if such repair, replacement or improvement (i) is
necessary to comply with any governmental or quasi-governmental law, statute,
Exhibit I- Page 4
ordinance, rule, order, requirements or regulation, which is enacted or
promulgated after the date hereof, (ii) is reasonably intended to reduce
Operating Costs or (iii) constitutes a replacement which in Lessor's reasonable
judgment is economically prudent to make in lieu of repairs, (B) the cost
thereof shall be amortized on a straight line basis over the useful life of such
repair, the amount so amortized attributable to such repair, replacement or
improvement and (C) there shall be included in Operating Costs in each Lease
Year for such portion of the amortization period which occurs during the Term,
provided, however, that all amounts thereof included in Operating Costs in any
Lease Year subsequent to the year paid shall have added thereto interest from
the date Lessor incurred such cost. For amortization purposes, applicable
interest shall be two (2) percentage points in excess of the prime rate charged
by Chase Manhattan Bank, or its successor, at the time of expenditure.
Exhibit I- Page 4
FIRST AMENDMENT TO LEASE
1. PARTIES
1.1 THIS AGREEMENT made the 30th day of June, 2003 is between
SYLVAN/CAMPUS REALTY L.L.C. ("Lessor") whose address is c/o
Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 and THE MEDICINES COMPANY ("Lessee"), whose address
is 0 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx.
2. STATEMENT OF FACTS
2.1 Lessor and Lessee previously entered into a Lease dated
September 30, 2002 (the "Lease") covering approximately 16,779
gross rentable square feet on the second (2nd) floor
("Premises") in the building located at 0 Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx ("Building"); and
2.2 The Term of the Lease is for ten (10) years from the Rent
Commencement Date with the Rent Commencement Date of the initial
Term being defined in the Preamble to the Lease as the earlier
of (i) the date upon which Lessee, or anyone claiming under or
through Lessee, commences using the Premises for the conduct of
business, or (ii) the date which is ninety (90) days after the
date of this Lease.
2.3 It has been determined in accordance with Paragraph 6 of the
Preamble to the Lease that January 6, 2003 was the Rent
Commencement Date of the Term of the Lease.
2.4 The Term of the Lease expires at 11:59 p.m. on January 31, 2013
("Expiration Date"); and
2.5 Lessee desires to expand the Premises by leasing approximately
3,450 gross rentable square feet on the second (2nd) floor of
the Building ("Expansion Premises"), as shown on Exhibit A
attached hereto and made a part hereof; and
2.6 The parties desire to amend certain terms of the Lease as set
forth below.
3. AGREEMENT
NOW, THEREFORE, in consideration of the terms, covenants and
conditions hereinafter set forth, Lessor and Lessee agree as follows:
3.1 The above recitals are incorporated herein by reference.
3.2 All capitalized and non-capitalized terms used in this Agreement
which are not separately defined herein but are defined in the
Lease shall have the meaning given to any such term in the
Lease.
3.3 The Term applicable to the Expansion Premises shall commence on
the Effective Date (as defined below) and shall terminate at
11:59 p.m. on January 31, 2013.
3.4 The effective date applicable to the Expansion Premises shall be
the earlier of (i) the day Lessor substantially completes the
improvements to be made to the Expansion Premises in accordance
with Exhibit B attached hereto and made part hereof and obtains
a (temporary or final) certificate of occupancy for the
Expansion Premises (if required by local law) or (ii) the date
Lessee or anyone claiming under or through Lessee shall occupy
the Expansion Premises (the "Effective Date").
3.5 Lessor, at its sole cost and expense, shall perform the
improvement work to the Expansion Premises in accordance with
Exhibit B attached hereto and made part hereof.
3.6 From and after the Effective Date, the following shall be
effective:
a. Lessor shall lease to Lessee and Lessee shall hire from
Lessor the Expansion Premises as shown on Exhibit A
attached hereto and made part hereof.
b. The Premises shall be defined as approximately 20,229
gross rentable square feet on the second (2) floor of
the Building and Paragraph 7 of the Preamble
1
to the Lease and Exhibit A shall be deemed amended
accordingly.
c. In addition to the Fixed Basic Rent payable applicable
to the Premises, Lessee shall pay Lessor Fixed Basic
Rent applicable to the Expansion Premises which shall
accrue as follows and Paragraph 10 of the Preamble to
the Lease shall be deemed supplemented accordingly:
(i) commencing on the Effective Date through and
including the day prior to the second (2nd)
month anniversary of the Effective Date, the
Fixed Basic Rent applicable to the Expansion
Premises shall be ZERO AND 00/100 DOLLARS
($0.00).
(ii) commencing on the second (2nd) month anniversary
of the Effective Date through and including
January 31, 2005, the Fixed Basic Rent
applicable to the Expansion Premises shall be
NINETY-ONE THOUSAND FOUR HUNDRED TWENTY-FIVE AND
00/100 DOLLARS ($91,425.00) per annum, payable
in advance on the first day of each and every
calendar month in equal monthly installments of
SEVEN THOUSAND SIX HUNDRED EIGHTEEN AND 75/100
($7,618.75); and
(iii) commencing on February 1, 2005 through and
including January 31, 2006, the Fixed Basic Rent
applicable to the Expansion Premises shall be
NINETY-THREE THOUSAND ONE HUNDRED FIFTY AND
00/100 DOLLARS ($93,150.00) per annum, payable
in advance on the first day of each and every
calendar month in equal monthly installments of
SEVEN THOUSAND SEVEN HUNDRED SIXTY-TWO AND
50/100 DOLLARS ($7,762.50); and
(iv) commencing on February 1, 2006 through and
including January 31, 2007, the Fixed Basic Rent
applicable to the Expansion Premises shall be
NINETY-FOUR THOUSAND EIGHT HUNDRED SEVENTY-FIVE
AND 00/100 DOLLARS ($94,875.00) per annum,
payable in advance on the first day of each and
every calendar month in equal monthly
installments of SEVEN THOUSAND NINE HUNDRED SIX
AND 25/100 DOLLARS ($7,906.25); and
(v) commencing on February 1, 2007 through and
including January 31, 2008, the Fixed Basic Rent
applicable to the Expansion Premises shall be
NINETY-EIGHT THOUSAND THREE HUNDRED TWENTY-FIVE
AND 00/100 DOLLARS ($98,325.00) per annum,
payable in advance on the first day of each and
every calendar month in equal monthly
installments of EIGHT THOUSAND ONE HUNDRED
NINETY-THREE AND 75/100 DOLLARS ($8,193.75); and
(vi) commencing on February 1, 2008 through and
including January 31, 2009, the Fixed Basic Rent
applicable to the Expansion Premises shall be
ONE HUNDRED THOUSAND FIFTY AND 00/100 DOLLARS
($100,050.00) per annum, payable in advance on
the first day of each and every calendar month
in equal monthly installments of EIGHT THOUSAND
THREE HUNDRED THIRTY-SEVEN AND 50/100 DOLLARS
($8,337.50); and
(vii) commencing on February 1, 2009 through and
including January 31, 2010, the Fixed Basic Rent
applicable to the Expansion Premises shall be
ONE HUNDRED ONE THOUSAND SEVEN HUNDRED
SEVENTY-FIVE AND 00/100 DOLLARS ($101,775.00)
per annum, payable in advance on the first day
of each and every calendar month in equal
monthly installments of EIGHT THOUSAND FOUR
HUNDRED EIGHTY-ONE AND 25/100 DOLLARS
($8,481.25); and
(viii) commencing on February 1, 2010 through and
including January 31, 2011, the Fixed Basic Rent
applicable to the Expansion Premises shall be
ONE HUNDRED THREE THOUSAND FIVE HUNDRED AND
00/100 DOLLARS ($103,500.00) per annum, payable
in advance on the first day of each and every
calendar month in equal
2
monthly installments of EIGHT THOUSAND SIX
HUNDRED TWENTY-FIVE AND 00/100 DOLLARS
($8,625.00); and
(ix) commencing on February 1, 2011 through and
including January 31, 2012, the Fixed Basic Rent
applicable to the Expansion Premises shall be
ONE HUNDRED FIVE THOUSAND TWO HUNDRED
TWENTY-FIVE AND 00/100 DOLLARS ($105,225.00) per
annum, payable in advance on the first day of
each and every calendar month in equal monthly
installments of EIGHT THOUSAND SEVEN HUNDRED
SIXTY-EIGHT AND 75/100 DOLLARS ($8,768.75); and
(x) commencing on February 1, 2012 through and
including January 31, 2013, the Fixed Basic Rent
applicable to the Expansion Premises shall be
ONE HUNDRED SIX THOUSAND NINE HUNDRED FIFTY AND
00/100 DOLLARS ($106,950.00) per annum, payable
in advance on the first day of each and every
calendar month in equal monthly installments of
EIGHT THOUSAND NINE HUNDRED TWELVE AND 50/100
DOLLARS ($8,912.50).
d. Parking Spaces shall be defined as seventy-six
unassigned spaces and Paragraph 14 of the Preamble to
the Lease shall be deemed amended accordingly.
e. Lessee shall pay Lessor the cost of electricity consumed
within the Expansion Premises in accordance with Article
22 BUILDING STANDARD OFFICE ELECTRICAL SERVICE of the
Lease.
f. Lessee shall pay Lessor, as Additional Rent, Lessee's
Percentage applicable to the Expansion Premises of the
increased cost to Lessor for each of the categories set
forth in Article 23 ADDITIONAL RENT over the Base
Operating Costs, Base Real Estate Taxes and Base Utility
and Energy Costs incurred during Calendar Year 2004.
g. Lessee's Percentage applicable to the Expansion Premises
shall be 1.6%.
3.7 This Agreement shall not extend or otherwise amend the Term or
Fixed Basic Rent applicable to the Premises as defined herein.
3.8 No later than thirty (30) days after the determination of the
Effective Date, the parties shall agree to memorialize the
Effective Date in writing.
3.9 Lessee represents and warrants to Lessor that no broker, other
than Xxxxxxx Xxxx Company, brought about this transaction, and
Lessee agrees to indemnify and hold Lessor harmless from any and
all claims of any other broker claiming to have been engaged by
Lessee in connection with negotiations of, or entering into of,
this Agreement.
3.10 Lessee hereby represents to Lessor that (i) except for any
default which may exist as a result of the filing of certain
liens against the Building, there exists no default under the
Lease either by Lessor or Lessee; (ii) Lessee is entitled to no
credit, free rent or other offset or abatement of the rents due
under the Lease; and (iii) there exists no offset, defense or
counterclaim to Lessee's obligation under the Lease.
3.11 Except as expressly amended herein, the Lease, as amended, shall
remain in full force and effect as if the same had been set
forth in full herein, and Lessor and Lessee hereby ratify and
confirm all of the terms and conditions thereof.
3.12 This agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives,
successors and permitted assigns.
3.13 Each party agrees that it will not raise or assert as a defense
to any obligation under the Lease or this Agreement or make any
claim that the Lease or this Agreement is invalid or
unenforceable due to any failure of this document to comply with
ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses,
notarizations, or other similar requirements, and each party
hereby waives the right to assert any such defense or make any
claim of
3
invalidity or unenforceability due to any of the foregoing.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written, and acknowledge one to the other
that they possess the requisite authority to enter into this transaction and to
sign this Agreement.
LESSOR: LESSEE:
SYLVAN/CAMPUS REALTY L.L.C. THE MEDICINES COMPANY
By: Grove Street Associates of Jersey
City Limited Partnership, member
By: Xxxx-Xxxx Sub IV, Inc., its general
partner
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------- ---------------------------
Xxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxx
Vice President - Leasing Title: Chairman
4
EXHIBIT A
LOCATION OF EXPANSION PREMISES
[Schematic diagram of original premises and expansion premises]
5
EXHIBIT B
NOTES
RE: Workletter Agreement for office space on the second (2nd) floor at 0
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
June 30, 2003
LESSEE:
THE MEDICINES COMPANY
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease amendment ("Amendment"), covering the space
referred to above, as more particularly described in the Amendment ("Expansion
Premises").
To induce Lessee to enter into the Amendment (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1. Lessor shall have its architect prepare the following architectural and
mechanical drawings and specifications based upon the sketch layout
supplied to Lessor by Lessee, attached hereto and made a part hereof,
upon full execution of this Lease.
a. Architectural drawings and specifications for Lessee's partition
layout, reflected ceiling, placement of electrical outlets and
other installations for the work to be done by Lessor.
b. Mechanical plans and specifications where necessary for
installation of air conditioning systems, ductwork and heating.
All such plans and specifications are expressly subject to Lessor's
written approval, which Lessor covenants it will not unreasonably
withhold.
2. Lessor agrees to cause the partition plan, electrical plan and the
reflected ceiling plan to be delivered to Lessee on or before the
fifteenth (15th) day after Lessee's approved sketch layout. Lessee
agrees to approve said plans by initialing and returning same to Lessor
within three (3) days of receipt of each plan. Upon approval of the
plans initialed by Lessee, Lessor shall file said plans with the
appropriate governmental agencies.
3. Lessor agrees, at its expense and without charge to Lessee (unless
otherwise provided), to do the work in the Expansion Premises as shown
on the plans dated May 16, 2003, as amended June 24, 2003, created by
First Floor, attached hereto and described on the "Description of
Materials" schedule attached hereto and in conformance with the Premises
originally leased by Lessee under the Lease, which shall hereinafter be
referred to as "The Work" "Building Standard" shall mean the type and
grade of material, equipment and/or device designated by Lessor as
standard for the Building. All items are Building Standard unless
otherwise noted. The provisions of Article 6 of the Lease shall apply to
any alterations made to the Expansion Premises after the initial work to
be performed herein.
4. Intentionally omitted.
5. All low partitioning, workstation modules, bank screen partitions and
prefabricated partition systems shall be furnished and installed by
Lessee.
6. The installation or wiring of telephone and computer (data) outlets is
not part of The Work. Lessee shall bear the responsibility to provide
its own telephone and data systems at Lessee's sole cost and expense.
Upon expiration or sooner termination of the Lease, Lessee shall remove
all telephone and data equipment and wiring from the Expansion Premises
and the Building risers upon vacation of same.
Exhibit B - Page 1
7. Changes in The Work, if necessary or requested by the Lessee, shall be
accomplished after submission of Lessee's final approved sketch layout,
and without invalidating any part of the Lease or Workletter Agreement,
by written agreement between Lessor and Lessee hereinafter referred to
as a Change Order. Each Change Order shall be prepared by Lessor and
signed by both Lessee and Lessor stating their agreement upon all of the
following:
a. The scope of the change in The Work; and
b. The cost of the change; and
c. Manner in which the cost will be paid or credited; and
d. The estimated extent of any adjustment to the Effective Date (if
any) as a result of the change in The Work.
Each and every Change Order shall be signed by Lessor's and
Lessee's respective construction representatives. In no
event shall any Change Order(s) be permitted without
such authorizations. A 10% supervision plus 10% overhead
charge will be added to the cost of any Change Order and
to the cost of any other work to be performed by Lessor
in the Expansion Premises after Lessor's completion of
The Work. If Lessee shall fail to approve any such
Change Order within one (1) week, the same shall be
deemed disapproved in all respects by Lessee and Lessor
shall not be authorized to proceed thereon. Any increase
in the cost of The Work or the change in The Work stated
in a Change Order which results from Lessee's failure to
timely approve and return said Change Order shall be
paid by the Lessee. Lessee agrees to pay to Lessor the
cost of any Change Order promptly upon receipt of an
invoice for same. Similarly, any cost savings resulting
from such Change Order(s) shall be credited to the
Lessee.
8. If Lessee elects to use the architect suggested by Lessor, this
architect becomes the Lessee's agent solely with respect to the plans,
specifications and The Work. If any change is made after completion of
schematic drawings and prior to completion of final construction
documents which result in a Change Order and additional costs, such
costs shall be the responsibility of the Lessee.
9. Prior to Lessee's occupancy of the Expansion Premises, Lessee shall
identify and list any portion of The Work which does not conform to this
Workletter Agreement ("Punch List"). The Lessor shall review with the
Lessee all of the items so listed and correct or complete any portion of
The Work which fails to conform to the requirements of this Workletter
Agreement.
10. The terms contained in the Amendment (which include all exhibits
attached thereto) constitute Lessor's agreement with Lessee with respect
to the work to be performed by Lessor on Lessee's behalf. If the
architectural drawings are in conflict with the terms of the Amendment,
then the Lease shall be deemed the controlling document.
11. All materials and installations constructed for the Lessee within the
Expansion Premises shall become the property of the Lessor upon
installation. No refund, credit or removal of said items is to be
permitted at the termination of the Lease. Items installed that are not
integrated in any such way with other common building materials do not
fall under this provision (e.g. shelving, furniture, etc.).
12. It is agreed that notwithstanding the date provided in the Lease for the
Effective Date, the term applicable to the Expansion Premises shall not
commence until Lessor has "substantially completed" all work to be
performed by Lessor as hereinbefore set forth in Paragraph 3 above and
as set forth in the Amendment; provided, however, that if Lessor shall
be delayed in substantially completing said work as a result of:
a. Lessee's failure to approve the plans and specifications in
accordance with Paragraph 2 hereof; or
b. Lessee's failure to furnish interior finish specifications,
i.e., paint colors, carpet
Exhibit B - Page 2
selection, etc., to Lessor by the fifth (5th) working day after
Lessor has approved the plans and specifications submitted by
Lessee referred to in Paragraph 2 hereof; or
c. Lessee's request for materials, finishes or installations other
than Lessor's Building Standard; or
d. Lessee's changes in The Work; or
e. The performance of a person, firm, partnership or corporation
employed by Lessee and the completion of the said work by said
person, firm, partnership or corporation;
then the Effective Date of the term of said Lease shall be accelerated
by the number of days of such delay and Lessee's obligation to pay Fixed
Basic Rent and Additional Rent shall commence as of such earlier date.
As to matters described in clauses (a) - (e) above, Lessor shall advise
Lessee of any delay that Lessor knows is reasonably likely to occur as a
result of the matter described, within a reasonable time after Lessor
becomes aware of such likelihood.
13. Lessor shall permit Lessee and its agents to enter the Expansion
Premises prior to the Commencement Date in order that Lessee may perform
through its own non-union contractors (or union contractor if required
by Lessor) such other work and decorations as Lessee may desire at the
same time Lessor's contractors are working in the Expansion Premises.
The foregoing license to enter prior to the Commencement Date, however,
is conditioned upon:
a. Lessee's workmen and mechanics working in harmony and not
interfering with the labor employed by Lessor, Lessor's
mechanics or contractors or by any other Lessee or its mechanics
or contractors; and
b. Lessee providing Lessor with evidence of Lessee's contractors
and subcontractors carrying such worker's compensation, general
liability, personal and property insurance as required by law
and in amounts no less than the amounts set forth in Article 30
of the Lease. If at any time such entry shall cause disharmony
or interference therewith, this license may be withdrawn by
Lessor upon forty-eight (48) hours written notice to Lessee.
Such entry shall be deemed controlled by all of the terms,
covenants, provisions and conditions of said Lease, except as to
the covenant to pay Fixed Basic Rent and Additional Rent. Lessor
shall not be liable in any way for any injury, loss or damage
which may occur to any of Lessee's decorations or installations
so made prior to the Effective Date, the same being solely at
Lessee's risk.
14. No part of the Expansion Premises shall be deemed unavailable for
occupancy by the Lessee, or shall any work which the Lessor is obligated
to perform in such part of the Expansion Premises be deemed incomplete
for the purpose of any adjustment of Fixed Basic Rent payable hereunder,
solely due to the non-completion of details of construction, decoration
or mechanical adjustments which are minor in character and the
non-completion of which does not materially interfere with the Lessee's
use of such part of the Expansion Premises.
15. Lessee is responsible for all costs related to the repairs and
maintenance of any additional or supplemental HVAC systems, appliances
and equipment installed to meet Lessee's specific requirements. Lessee
shall purchase a service contract for this equipment so that the
equipment is covered by such service contract each year of the term of
the Lease and shall forward a copy of such contract to Lessor.
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee
shall fail to comply with a submitted construction schedule to relocate
personnel, furniture, or equipment. These costs shall include, but not
be limited to the following:
a. cost of construction workers time wasted; and
b. cost of any overtime work necessary to meet schedule deadlines;
and
Exhibit B - Page 3
c. any other costs associated with delays in final completion.
17. This workletter is based on the quantities and specifications listed
herein. Any change to these specifications shall require the
recalculation of the construction costs. Such recalculation shall not
negate any other section of this Lease.
18. All sums payable by Lessee to Lessor in connection with this Exhibit B
and any other work to be performed by Lessor within the Expansion
Premises and billable to Lessee shall be deemed Additional Rent.
19. With respect to the construction work being conducted in or about the
Expansion Premises, each party agrees to be bound by the approval and
actions of their respective construction representatives. Unless changed
by written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: FOR LESSEE:
________________________________ Xxxx Xxxxxxxx
c/o Xxxx-Xxxx Realty Corporation The Medicines Company
________________________________ 0 Xxxxxx Xxxxx, Xxxxxxxxxx, XX
________________________________ (000) 000-0000
Exhibit B - Page 4
SECOND AMENDMENT TO LEASE
1. PARTIES
1.1 THIS AGREEMENT made the 31st day of December, 2003 is between
SYLVAN/CAMPUS REALTY L.L.C. ("Lessor") whose address is c/o
Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 and THE MEDICINES COMPANY ("Lessee"), whose address
is 0 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
2. STATEMENT OF FACTS
2.1 Lessor and Lessee previously entered into a Lease dated
September 30, 2002, as amended by First Amendment to Lease dated
June 30, 2003 (together, the "Lease") covering approximately
20,229 gross rentable square feet on the second (2nd) floor in
the building located at 0 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx
("Building"); and
2.2 Lessee desires to expand the office space subject to the Lease
by leasing approximately 12,437 gross rentable square feet on
the first (1st) floor of the Building ("Expansion Premises"), as
shown on Exhibit A attached hereto and made a part hereof; and
2.3 The parties desire to amend certain terms of the Lease as set
forth below.
3. AGREEMENT
NOW, THEREFORE, in consideration of the terms, covenants and
conditions hereinafter set forth, Lessor and Lessee agree as follows:
3.1 The above recitals are incorporated herein by reference.
3.2 All capitalized and non-capitalized terms used in this Agreement
which are not separately defined herein but are defined in the
Lease shall have the meaning given to any such term in the
Lease.
3.3 The Term applicable to the Expansion Premises shall commence on
the Effective Date (as defined below) and shall terminate at
11:59 p.m. on January 31, 2013.
3.4 The effective date applicable to the Expansion Premises shall be
the earlier of (i) the day Lessor substantially completes the
improvements to be made to the Expansion Premises in accordance
with Exhibit B attached hereto and made part hereof and obtains
a (temporary or final) certificate of occupancy for the
Expansion Premises (if required by local law) or (ii) the date
Lessee or anyone claiming under or through Lessee shall occupy
the Expansion Premises (the "Effective Date").
3.5 Lessor, at its sole cost and expense, shall perform the
improvement work to the Expansion Premises in accordance with
Exhibit B attached hereto and made part hereof.
3.6 From and after the Effective Date, the following shall be
effective:
a. Lessor shall lease to Lessee and Lessee shall hire from
Lessor the Expansion Premises as shown on Exhibit A
attached hereto and made part hereof.
b. The Premises shall be defined as approximately 32,666
gross rentable square feet consisting of 20,229 gross
rentable square feet on the second (2nd) floor and
12,437 gross rentable square feet on the first (1st)
floor of the Building and Paragraph 7 of the Preamble to
the Lease and Exhibit A shall be deemed amended
accordingly.
c. Lessee shall pay Lessor Fixed Basic Rent applicable to
the Expansion Premises which shall accrue as follows and
Paragraph 10 of the Preamble to the Lease shall be
deemed supplemented accordingly.
(i) commencing on the Effective Date through and
including January 31, 2006, the Fixed Basic Rent
applicable to the Expansion Premises shall be
THREE HUNDRED FORTY-TWO THOUSAND SEVENTEEN AND
52/100 DOLLARS ($342,017.52) per annum, payable
in advance on the first day of each and every
calendar month
in equal monthly installments of TWENTY-EIGHT
THOUSAND FIVE HUNDRED ONE AND 46/100 DOLLARS
($28,501.46); and
(ii) commencing on February 1, 2006 through and
including January 31, 2007, the Fixed Basic Rent
applicable to the Expansion Premises shall be
THREE HUNDRED FORTY-EIGHT THOUSAND TWO HUNDRED
THIRTY-SIX AND 00/100 DOLLARS ($348,236.00) per
annum, payable in advance on the first day of
each and every calendar month in equal monthly
installments of TWENTY-NINE THOUSAND NINETEEN
AND 67/100 DOLLARS ($29,019.67); and
(iii) commencing on February 1, 2007 through and
including January 31, 2008, the Fixed Basic Rent
applicable to the Expansion Premises shall be
THREE HUNDRED FIFTY-FOUR THOUSAND FOUR HUNDRED
FIFTY-FOUR AND 50/100 DOLLARS ($354,454.50) per
annum, payable in advance on the first day of
each and every calendar month in equal monthly
installments of TWENTY-NINE THOUSAND FIVE
HUNDRED THIRTY-SEVEN AND 88/100 DOLLARS
($29,537.88); and
(iv) commencing on February 1, 2008 through and
including January 31, 2009, the Fixed Basic Rent
applicable to the Expansion Premises shall be
THREE HUNDRED SIXTY THOUSAND SIX HUNDRED
SEVENTY-THREE AND 00/100 DOLLARS ($360,673.00)
per annum, payable in advance on the first day
of each and every calendar month in equal
monthly installments of THIRTY THOUSAND
FIFTY-SIX AND 08/100 DOLLARS ($30,056.08); and
(v) commencing on February 1, 2009 through and
including January 31, 2010, the Fixed Basic Rent
applicable to the Expansion Premises shall be
THREE HUNDRED SIXTY-SIX THOUSAND EIGHT HUNDRED
NINETY-ONE AND 50/100 DOLLARS ($366,891.50) per
annum, payable in advance on the first day of
each and every calendar month in equal monthly
installments of THIRTY THOUSAND FIVE HUNDRED
SEVENTY-FOUR AND 29/100 DOLLARS ($30,574.29);
and
(vi) commencing on February 1, 2010 through and
including January 31, 2011, the Fixed Basic Rent
applicable to the Expansion Premises shall be
THREE HUNDRED SEVENTY-THREE THOUSAND ONE HUNDRED
TEN AND 00/100 DOLLARS ($373,110.00) per annum,
payable in advance on the first day of each and
every calendar month in equal monthly
installments of THIRTY-ONE THOUSAND NINETY-TWO
AND 50/100 DOLLARS ($31,092.50); and
(vii) commencing on February 1, 2011 through and
including January 31, 2012, the Fixed Basic Rent
applicable to the Expansion Premises shall be
THREE HUNDRED SEVENTY-NINE THOUSAND THREE
HUNDRED TWENTY-EIGHT AND 50/100 DOLLARS
($379,328.50) per annum, payable in advance on
the first day of each and every calendar month
in equal monthly installments of THIRTY-ONE
THOUSAND SIX HUNDRED TEN AND 71/100 DOLLARS
($31,610.71); and
(viii) commencing on February 1, 2012 through and
including January 31, 2013, the Fixed Basic Rent
applicable to the Expansion Premises shall be
THREE HUNDRED EIGHTY-FIVE THOUSAND FIVE HUNDRED
FORTY-SEVEN AND 00/100 DOLLARS ($385,547.00) per
annum, payable in advance on the first day of
each and every calendar month in equal monthly
installments of THIRTY-TWO THOUSAND ONE HUNDRED
TWENTY-EIGHT AND 92/100 DOLLARS ($32,128.92).
Notwithstanding the foregoing, Tenant shall be entitled
to a credit against Fixed Basic Rent in the amount of
$14,095.27 per month for the period commencing on the
Effective Date through and including the first twelve
(12) months.
2
d. Parking Spaces shall be increased by forty-seven (47)
unassigned spaces, and Paragraph 14 of the Preamble to
the Lease shall be deemed amended accordingly.
e. Lessee shall pay Lessor the cost of electricity consumed
within the Expansion Premises in accordance with Article
22 BUILDING STANDARD OFFICE ELECTRICAL SERVICE of the
Lease.
f. Lessee shall pay Lessor, as Additional Rent, Lessee's
Percentage applicable to the Expansion Premises of the
increased cost to Lessor for each of the categories set
forth in Article 23 ADDITIONAL RENT.
g. Lessee's Percentage applicable to the Expansion Premises
shall be 5.78%.
h. Base Period Costs with respect to the Expansion Premises
(as defined herein) only shall be as follows and
Paragraph 2 of the Preamble to the Lease shall be
supplemented accordingly:
(A) Base Operating Costs: Those costs incurred for
the Building and Office Building Area during the
Calendar Year 2004.
(B) Base Real Estate Taxes: Those Real Estate Taxes
incurred for the Building and Office Building Area
during Calendar Year 2004.
(C) Base Utility and Energy Costs: Those costs
incurred for the Building and Office Building Area
during Calendar Year 2004.
3.7 Article 54 of the Lease shall be applicable to the Expansion
Premises.
3.8 This Agreement shall not extend or otherwise amend the Term or
Fixed Basic Rent applicable to the Premises as defined herein.
3.9 No later than thirty (30) days after the determination of the
Effective Date, the parties shall agree to memorialize the
Effective Date in writing.
3.10 Lessee represents and warrants to Lessor that no broker, other
than Xxxxxxx Xxxx Company, brought about this transaction, and
Lessee agrees to indemnify and hold Lessor harmless from any and
all claims of any other broker claiming to have been engaged by
Lessee in connection with negotiations of, or entering into of,
this Agreement.
3.11 Lessee hereby represents to Lessor that (i) except for any
default which may exist as a result of the filing of certain
liens against the Building, there exists no default under the
Lease either by Lessor or Lessee; (ii) Lessee is entitled to no
credit, free rent or other offset or abatement of the rents due
under the Lease; and (iii) there exists no offset, defense or
counterclaim to Lessee's obligation under the Lease.
3.12 Except as expressly amended herein, the Lease, as amended, shall
remain in full force and effect as if the same had been set
forth in full herein, and Lessor and Lessee hereby ratify and
confirm all of the terms and conditions thereof.
3.13 This agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives,
successors and permitted assigns.
3.14 Each party agrees that it will not raise or assert as a defense
to any obligation under the Lease or this Agreement or make any
claim that the Lease or this Agreement is invalid or
unenforceable due to any failure of this document to comply with
ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses,
notarizations, or other similar requirements, and each party
hereby waives the right to assert any such defense or make any
claim of invalidity or unenforceability due to any of the
foregoing.
IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written, and acknowledge one to the other
that they possess the requisite
3
authority to enter into this transaction and to sign this Agreement.
LESSOR: LESSEE:
SYLVAN/CAMPUS REALTY L.L.C. THE MEDICINES COMPANY
By: Xxxx-Xxxx Realty, L.P., member
By: Xxxx-Xxxx Realty Corporation, its general
partner
By: s/ Xxxxxxx X. Xxxxxx By: s/ Xxxxxx X. Xxxxxxx
---------------------------- -------------------------
Xxxxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Vice President - Leasing Title: CFO
4
EXHIBIT A
LOCATION OF PREMISES
[Schematic diagram of expansion premises]
5
EXHIBIT B
RE: Workletter Agreement for office space on the first (1st) floor at 0
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx.
December 31, 2003
LESSEE:
THE MEDICINES COMPANY
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease amendment ("Amendment"), covering the space
referred to above, as more particularly described in the Amendment ("Expansion
Premises").
To induce Lessee to enter into the Amendment (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1. Lessor shall have its architect prepare the following architectural and
mechanical drawings and specifications based upon the sketch layout
supplied to Lessor by Lessee, attached hereto and made a part hereof,
upon full execution of this Amendment.
a. Architectural drawings and specifications for Lessee's partition
layout, reflected ceiling, placement of electrical outlets and
other installations for the work to be done by Lessor.
b. Mechanical plans and specifications where necessary for
installation of air conditioning systems, ductwork and heating.
All such plans and specifications are expressly subject to Lessor's
written approval, which Lessor covenants it will not unreasonably
withhold.
2. Lessor agrees to cause the partition plan, electrical plan and the
reflected ceiling plan to be delivered to Lessee on or before the
fifteenth (15th) day after Lessee's approved sketch layout. Lessee
agrees to approve said plans by initialing and returning same to Lessor
within five (5) days of receipt of each plan. Upon approval of the plans
initialed by Lessee, Lessor shall file said plans with the appropriate
governmental agencies.
3. Lessor agrees, at its expense and without charge to Lessee (unless
otherwise provided), to do the work in the Expansion Premises as shown
on the plans attached hereto and described on the "Description of
Materials" schedule attached hereto; which shall hereinafter be referred
to as "The Work". The Work shall include Lessor's general conditions and
overhead amounts indicated on the Description of Materials. "Building
Standard" shall mean the type and grade of material, equipment and/or
device designated by Lessor as standard for the Building. All items are
Building Standard unless otherwise noted. The provisions of Article 6 of
the Lease shall apply to any alterations made to the Expansion Premises
after the initial work to be performed therein.
4. Lessor has estimated the cost of The Work based upon the plans,
specifications and Description of Materials attached hereto. If the cost
of The Work shall exceed $310,925.00, the amount in excess of
$310,925.00 shall be deemed Additional Rent and paid by Lessee as
follows: (i) fifty percent (50%) upon Lessee's execution and delivery of
this Amendment and (ii) fifty percent (50%) upon Lessor's substantial
completion of The Work and prior to Lessee's occupancy of the Expansion
Premises. If the cost of The Work is less than $310,925.00, the amount
by which the cost of The Work is less than $310.925.00 shall be credited
in payment of the Fixed Basic Rent applicable to the Expansion Premises
in the order in which such Fixed Basic Rent shall become due. All
subcontracts which exceed $10,000.00 in cost will be competitively bid
by at least three (3) subcontractors. Lessee's construction
representative identified in Paragraph 19 of this Exhibit B shall be
given notice of and the opportunity to participate in progress meetings
with respect to The Work.
5. All low partitioning, workstation modules and prefabricated partition
systems shall be furnished and installed by Lessee.
6. The installation or wiring of telephone and computer (data) outlets is
not part of The Work. Lessee shall bear the responsibility to provide
its own telephone and data systems at Lessee's sole cost and expense.
Upon expiration or sooner termination of the Lease, Lessee shall remove
all telephone and data equipment and wiring from the Expansion Premises
and the Building risers upon vacation of same.
7. Changes in The Work, if necessary or requested by the Lessee, shall be
accomplished after submission of Lessee's final approved sketch layout,
and without invalidating any part of the Lease or Workletter Agreement,
by written agreement between Lessor and Lessee hereinafter referred to
as a Change Order. Each Change Order shall be prepared by Lessor and
signed by both Lessee and Lessor stating their agreement upon all of the
following:
a. The scope of the change in The Work; and
b. The cost of the change; and
c. Manner in which the cost will be paid or credited; and
d. The estimated extent of any adjustment to the Effective Date (if
any) as a result of the change in The Work.
Each and every Change Order shall be signed by Lessor's and
Lessee's respective construction representatives. In no event
shall any Change Order(s) be permitted without such
authorizations. A 10% supervision plus 10% overhead charge will
be added to the cost of any Change Order. If Lessee shall fail
to approve any such Change Order within one (1) week, the same
shall be deemed disapproved in all respects by Lessee and Lessor
shall not be authorized to proceed thereon. Any increase in the
cost of The Work or the change in The Work stated in a Change
Order which results from Lessee's failure to timely approve and
return said Change Order shall be paid by the Lessee. Lessee
agrees to pay to Lessor the cost of any Change Order promptly
upon receipt of an invoice for same. Similarly, any cost savings
resulting from such Change Order(s) shall be credited to the
Lessee.
8. If any change is made after completion of schematic drawings and prior
to completion of final construction documents which result in a Change
Order and additional costs, such costs shall be the responsibility of
the Lessee.
9. Prior to Lessee's occupancy of the Expansion Premises, Lessee shall
identify and list any portion of The Work which does not conform to this
Workletter Agreement ("Punch List"). The Lessor shall review with the
Lessee all of the items so listed and correct or complete any portion of
The Work which fails to conform to the requirements of this Workletter
Agreement.
10. The terms contained in the Amendment (which include all exhibits
attached thereto) constitute Lessor's agreement with Lessee with respect
to the work to be performed by Lessor on Lessee's behalf. If the
architectural drawings are in conflict with the terms of the Amendment,
then the Lease shall be deemed the controlling document.
11. All materials and installations constructed for the Lessee within the
Expansion Premises shall become the property of the Lessor upon
installation. No refund, credit or removal of said items is to be
permitted at the termination of the Lease. Items installed that are not
integrated in any such way with other common building materials do not
fall under this provision (e.g. shelving, furniture, etc.).
12. It is agreed that notwithstanding the date provided in the Lease for the
Effective Date, the term applicable to the Expansion Premises shall not
commence until Lessor has "substantially completed" all work to be
performed by Lessor as hereinbefore set forth in Paragraph 3 above and
as set forth in the Amendment; provided, however, that if Lessor shall
be delayed in substantially completing said work as a result of:
a. Lessee's failure to approve the plans and specifications in
accordance with Paragraph 2 hereof; or
b. Lessee's failure to furnish interior finish specifications,
i.e., paint colors, carpet selection, etc., to Lessor by the
fifth (5th) working day after Lessor has approved the plans and
specifications submitted by Lessee referred to in Paragraph 2
hereof; or
c. Lessee's request for materials, finishes or installations other
than Lessor's Building Standard; or
d. Lessee's changes in The Work; or
e. The performance of a person, firm, partnership or corporation
employed by Lessee and the completion of the said work by said
person, firm, partnership or corporation;
then the Effective Date of the term of said Lease shall be accelerated
by the number of days of such delay and Lessee's obligation to pay Fixed
Basic Rent and Additional Rent shall commence as of such earlier date.
As to matters described in clauses (a) - (e) above, Lessor shall advise
Lessee of any delay that Lessor knows is reasonably likely to occur as a
result of the matter described, within a reasonable time after Lessor
becomes aware of such likelihood. If Lessee causes any delay in the
Effective Date by reason of any act and/or omission of Lessor or its
agents, then such delay by Lessee shall not result in an acceleration of
the Effective Date as set forth above.
13. Lessor shall permit Lessee and its agents to enter the Expansion
Premises prior to the Commencement Date in order that Lessee may perform
through its own non-union contractors (or union contractor if required
by Lessor) such other work and decorations as Lessee may desire at the
same time Lessor's contractors are working in the Expansion Premises.
The foregoing license to enter prior to the Commencement Date, however,
is conditioned upon:
a. Lessee's workmen and mechanics working in harmony and not
interfering with the labor employed by Lessor, Lessor's
mechanics or contractors or by any other Lessee or its mechanics
or contractors; and
b. Lessee providing Lessor with evidence of Lessee's contractors
and subcontractors carrying such worker's compensation, general
liability, personal and property insurance as required by law
and in amounts no less than the amounts set forth in Article 30
of the Lease. If at any time such entry shall cause disharmony
or interference therewith, this license may be withdrawn by
Lessor upon forty-eight (48) hours written notice to Lessee.
Such entry shall be deemed controlled by all of the terms,
covenants, provisions and conditions of said Lease, except as to
the covenant to pay Fixed Basic Rent and Additional Rent. Lessor
shall not be liable in any way for any injury, loss or damage
which may occur to any of Lessee's decorations or installations
so made prior to the Effective Date, the same being solely at
Lessee's risk.
14. No part of the Expansion Premises shall be deemed unavailable for
occupancy by the Lessee, nor shall any work which the Lessor is
obligated to perform in such part of the Expansion Premises be deemed
incomplete for the purpose of any adjustment of Fixed Basic Rent payable
hereunder, solely due to the non-completion of details of construction,
decoration or mechanical adjustments which are minor in character and
the non-completion of which does not materially interfere with the
Lessee's use of such part of the Expansion Premises.
15. Lessee is responsible for all costs related to the repairs and
maintenance of any additional or supplemental HVAC systems, appliances
and equipment installed to meet Lessee's specific requirements. Lessee
shall purchase a service contract for this equipment so that the
equipment is covered by such service contract each year of the term of
the Lease and shall forward a copy of such contract to Lessor.
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee
shall fail to comply with a submitted construction schedule to relocate
personnel, furniture, or equipment. These costs shall include, but not
be limited to the following:
a. cost of construction workers time wasted; and
b. cost of any overtime work necessary to meet schedule deadlines;
and
c. any other costs associated with delays in final completion.
17. This workletter is based on the quantities and specifications listed
herein. Any change to these specifications shall require the
recalculation of the construction costs. Such recalculation shall not
negate any other section of this Lease.
18. All sums payable by Lessee to Lessor in connection with this Exhibit B
and any other work to be performed by Lessor within the Expansion
Premises and billable to Lessee shall be deemed Additional Rent.
19. With respect to the construction work being conducted in or about the
Expansion Premises, each party agrees to be bound by the approval and
actions of their respective construction representatives. Unless changed
by written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: FOR LESSEE:
XXX XXXXXXXX Xxxx Xxxxxxxx
c/o Xxxx-Xxxx Realty Corporation The Medicines Company
0 XXXXXX XXXXX 0 Xxxxxx Xxxxx, Xxxxxxxxxx, XX
XXXXXXXXX, XX (000) 000-0000
