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EXHIBIT 10.7
LEASE AGREEMENT
BY AND BETWEEN
150 COLLEGE ROAD, LLC
AND
PHYSIOME SCIENCES, INC.
DATED
DECEMBER 21, 2000
FOR 150 COLLEGE ROAD WEST
PRINCETON, NEW JERSEY
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TABLE OF CONTENTS
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Section 1...........................................ERROR!
BOOKMARK NOT DEFINED.
1.1. Demise of the
Premises....................................... 1
1.2. License To Use Public
Areas.................................. 1
1.3. Rentable
Area................................................ 2
1.4.
Term......................................................... 2
1.5.
Use.......................................................... 3
Section
2.......................................................................
4
2.1. Base
Rental.................................................. 4
2.2. Additional
Rental............................................ 4
2.3. Rental
Payments.............................................. 11
2.4. Security
Deposit............................................. 12
Section
3.......................................................................
13
3.1.
Services.....................................................
13
3.2. Governmental
Regulations..................................... 15
3.3. Failure to Provide Required
Services......................... 15
3.4. Additional
Services.......................................... 16
3.5. Landlord's
Obligation........................................ 16
Section
4.......................................................................
16
4.1. Care of the
Premises......................................... 16
4.2. Entry for Repairs and
Inspection............................. 17
4.3.
Nuisance.....................................................
18
4.4. Laws and Regulations; Rules of the
Building.................. 18
4.5. Hazardous
Substances......................................... 19
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4.6. ISRA
Compliance.............................................. 21
Section
5.......................................................................
25
5.1. Condition of the Premises and the
Project.................... 25
5.2. Alterations to the Premises other Than Work
Pursuant to EXHIBIT D........................................
25
5.3. Alterations to the
Building.................................. 28
5.4. Access
Cards................................................. 28
5.5. Graphics, Building Directory and
Name........................ 29
Section
6.......................................................................
29
6.1.
Condemnation.................................................
29
6.2. Damages from Certain
Causes.................................. 31
6.3.
Casualty.....................................................
31
Section
7.......................................................................
32
7.1. Property
Insurance........................................... 32
7.2. Liability
Insurance.......................................... 33
7.3. Hold Harmless; Mutual
Indemnity.............................. 33
7.4. Waiver of Claims and Recovery
Rights......................... 34
Section
8.......................................................................
35
8.1. Default by
Tenant............................................ 35
8.2.
Remedies.....................................................
36
8.3. Landlord's Right to Cure
Defaults............................ 39
8.4.
Non-Waiver...................................................
39
8.5. Holding
Over................................................. 39
8.6. Landlord's
Default........................................... 39
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Section
9.......................................................................
40
9.1. Assignment or Sublease by
Tenant............................. 40
9.2. Assignment by
Landlord....................................... 42
Section
10......................................................................
42
10.1. Peaceful
Enjoyment........................................... 42
10.2. Limitation of Landlord's Personal
Liability.................. 42
10.3. Limitation of Interest Holder's Personal
Liability........... 43
Section
11......................................................................
43
11.1.
Subordination................................................
43
11.2. Estoppel
Certificate......................................... 45
11.3. Right to Cure Landlord's
Default............................. 46
11.4. Compliance With Certain Mortgagee
Requirements............... 46
Section
12......................................................................
47
12.1. Food Service
Facility........................................ 47
12.2. Fitness
Center............................................... 48
12.3. Name
Change.................................................. 48
12.4. Legal
Fees................................................... 48
Section
13......................................................................
48
13.1.
Notices......................................................
48
13.2. Mailing
Address.............................................. 50
13.3.
Miscellaneous................................................
50
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EXHIBITS
EXHIBIT A DESCRIPTION OF LAND
EXHIBIT A-1 SITE PLAN OF PROJECT
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EXHIBIT B FLOOR PLANS OF THE PREMISES
EXHIBIT C DETERMINATION OF RENTABLE AREA
EXHIBIT D WORK LETTER
EXHIBIT E COMMENCEMENT DATE AGREEMENT
EXHIBIT F AIR CONDITIONING AND HEATING SERVICES
EXHIBIT G BUILDING RULES
EXHIBIT H JANITORIAL SPECIFICATIONS
EXHIBIT I LIST OF PARTICIPATING PLANS
EXHIBIT J NON-DISCLOSURE AGREEMENT
EXHIBIT K PARKING
EXHIBIT L RENEWAL OPTION
EXHIBIT M RIGHT OF SECOND OFFER
EXHIBIT N ANTENNA LICENSE
EXHIBIT O SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
AGREEMENT
</TABLE>
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<PAGE>
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into by
and
between 150 College Road, LLC, a Delaware limited liability
company (the
"Landlord"), and PHYSIOME SCIENCES, INC., a corporation of the
State of Delaware
(the "Tenant").
In consideration of the rentals reserved hereunder and the
duties,
covenants and obligations of the other hereunder, Landlord and
Tenant hereby
covenant and agree as follows:
1.
1.1. DEMISE OF THE PREMISES. Landlord hereby leases, demises and
lets to
Tenant, and Tenant hereby leases and takes from Landlord, those
certain premises
(hereinafter sometimes called the "Premises") consisting of the
entire third
floor of the building known as 150 College Road West in Village
South at
Princeton Forrestal Center which building is being developed as
a Class A
building (the "Building") which is located at 150 College Road
West, Plainsboro
Township (Middlesex County), New Jersey 08540 (hereinafter
sometimes called the
"Land"). The Land is more particularly described on EXHIBIT A,
and the Project
described and shown on EXHIBIT A-1 attached hereto and made a
part hereof for
all purposes. A floor plan of the Premises is attached hereto
and made a part
hereof for all purposes as EXHIBIT B. The Building, the Land,
all surface
parking lots owned or controlled by Landlord and servicing the
Building and any
such parking structures or parking lots constructed in the
future on the Land
(the "Parking Facilities"), and such additional facilities or
structures on the
Land to service any of the foregoing in subsequent years as may
be necessary or
desirable in Landlord's reasonable judgment are hereinafter
sometimes
collectively called the "Project." Landlord is the owner of the
Project. The
term "Project" does not include any other buildings or
structures not located on
the Land including but not limited to 100 College Road West.
1.2. LICENSE TO USE PUBLIC AREAS. Subject to Section 5.3 below,
Landlord
hereby grants Tenant, its employees, invitees and other
visitors, a nonexclusive
license for the term of this Lease and all extensions and
renewals thereof to
use, for the purpose of ingress and egress to the Building, the
Parking
Facilities, and the Premises, and in accordance with the
Building Rules (as
hereinafter defined) (a) the sidewalks and other exterior common
areas located
on the Land; and (b) the lobbies, public corridors and elevator
foyers of the
Building as such areas are designated by Landlord from time to
time for the
common use of the Building's tenants.
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1.3. RENTABLE AREA. Landlord and Tenant stipulate and agree for
all
purposes under this Lease that the Rentable Area (as set forth
on EXHIBIT C
attached hereto and made a part hereof for all purposes) of the
Premises is
25,338 rentable square feet, based upon the final Space Plan (as
defined in
EXHIBIT D).
1.4. TERM.
(a) The term of this Lease shall commence on the date
Landlord
receives a temporary or permanent certificate of occupancy for
the Premises
(hereinafter the "Commencement Date"), which is expected to be
on or before July
1, 2001, and, unless sooner terminated in accordance with the
terms and
conditions set forth herein, shall expire on the last day of the
one-hundred
twentieth (120th) full calendar month after the Commencement
Date (the
"Expiration Date"). In the event, however, the Commencement Date
would have
occurred on July 1, 2001 but is delayed by Tenant Delay as
defined in EXHIBIT D,
the term of this Lease shall be deemed to have commenced on the
Completion Date,
as defined in EXHIBIT D. In the event the Commencement Date has
not occurred by
July 31, 2001, as a result of Landlord Delay, Landlord shall pay
to Tenant
monthly a penalty equal to the actual incremental increase in
Tenant's current
rental obligation due to Tenant's current holdover provision,
not to exceed an
amount of $23,613 per month, every month until the Commencement
Date. The term
"Landlord Delay" means the delay in completion of Tenant's Work
caused by (a)
Landlord's failure to act or provide the responses described in
the Work Letter
attached as EXHIBIT D within the time specified, or (b) any
delay within
Landlord's control that is not Tenant Delay, or (c) any delay
not due to an
event of force majeure, as defined in the following sentence.
Delay due to fire,
catastrophe, strikes or labor trouble, civil commotion, acts of
God, inability
in obtaining materials, or any other cause beyond Landlord's
control, shall not
be considered a Landlord Delay and the period of such delay
shall be added to
Landlord's time to achieve the Commencement Date, and Landlord
shall have no
obligation to pay any penalty including Tenant's incremental
holdover rent on
its current space because of such delay.
(b) EXHIBIT D is the Work Letter which shall be binding on
the
parties in regard to Tenant's Work to be performed by
Landlord.
(c) Tenant, at Landlord's request, shall execute an agreement
(in
the form attached hereto as EXHIBIT E and made a part hereof for
all purposes)
specifying, among other matters, the date upon which the
Commencement Date
occurred. Landlord shall use commercially reasonable efforts to
prepare and
deliver such agreement to Tenant within fifteen (15) days after
the Commencement
Date and Tenant shall execute and deliver the agreement to
Landlord within five
(5) business days of Tenant's receipt thereof.
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(d) Notwithstanding anything to the contrary set forth
herein,
Tenant shall have the right to terminate this Lease if the
Commencement Date has
not been achieved by December 31, 2001, plus the number of days
of Tenant Delay,
as defined in EXHIBIT D, if any. In the event of such
termination, any security
deposit furnished by Tenant pursuant to Section 2.4 of the Lease
shall be
returned, or, in the case of a letter of credit, shall be
terminated. In
addition, the Escrowed Funds, together with any interest earned,
furnished
pursuant to Section 4.1 of the Work Letter shall be returned to
Tenant.
1.5. USE.
(a) The Premises are to be used and occupied by Tenant (and
its
assignees and subtenants permitted hereunder) solely for general
office use
including non-laboratory research and development of
pharmaceuticals. Without
limiting the foregoing, the Premises shall not be used for any
purpose which
would tend to lower the first-class character of the Building,
or create
excessive elevator loads and/or usage, or increase wear and tear
on the
Building's mechanical, electrical and plumbing systems, or
increase the
Building's maintenance and/or janitorial services or otherwise
interfere with
standard Building operations, and Tenant shall not engage in any
activity which
is not in keeping with the written standards of the Building as
furnished to
Tenant. Tenant shall not be allowed to (i) have more than five
(5) persons per
one thousand (1,000) square feet of Rentable Area occupy the
Premises without
consent of the Landlord (except for conferences, luncheons and
other similar
occasional functions in the ordinary course of Tenant's
business), (ii) operate
separate shifts of employees from the Premises (other than
persons to operate
Tenant's computer facilities and a limited number of other
employees who may
work so that the Premises are occupied twenty-four (24) hours a
day seven (7)
days a week), (iii) use the space for the purpose of providing
telemarketing
services other than telemarketing services and telephone
customer support in the
normal course of Tenant's business, (iv) use the space as a
consular office for
any foreign government, or (v) use the space as an office for
any governmental
or regulatory authority, agency or bureau.
(b) Tenant shall not occupy or use the Premises, or permit
any
portion of the Premises to be occupied or used, for any business
or purpose
which is unlawful or deemed to be hazardous on account of fire
or other hazards,
or permit anything to be done which would in any way increase
the rate of fire
or liability or any other insurance coverage on the Building
and/or its
contents, or which would produce strong, unusual or offensive
odors, fumes, dust
or vapors, or that is a public or private nuisance, or that
emits noise or
sounds that are objectionable to a person of reasonable judgment
due to
intermittence, beat, frequency, shrillness or loudness. Tenant
shall not permit
any cooking within the Premises except the use of a
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microwave oven. Tenant agrees that no more than three food, soft
drink or other
vending machines may be installed within the Premises without
the written
consent of Landlord. The location of any vending machines is
subject to
Landlord's approval and shall not be visible from Building
common areas or the
exterior of the Building. The Building is a "non-smoking"
Building. Tenant
agrees that no smoking is allowed in the Premises or in-the
Public Areas of the
Building. "Public Areas" shall include but are not limited to:
Building lobbies,
elevators, elevator lobbies, corridors, restrooms, mailrooms,
public break
rooms, stairwells, fitness center and food service facility.
2.
2.1. BASE RENTAL. Tenant hereby covenants and agrees to pay to
Landlord as
partial consideration for Tenant's use and occupancy of the
Premises a base
annual rental (the "Base Rental"), which Base Rental shall be
payable in monthly
installments in advance on the first day of each month beginning
on the
Commencement Date in accordance with the following schedule:
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Rate per Square Foot
Time Period of Rentable Area Annual Base Rental Monthly
Installment
--------------- -------------------- ------------------
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<S> <C> <C> <C>
Months* 1 - 60 $ 30.75 $ 779,143.50 $ 64,928.63
Months 61 - 120 $ 34.50 $ 874,161.00 $ 72,846.75
</TABLE>
* TABLE REFERS TO FULL MONTHS AND EXCLUDES ANY PARTIAL MONTH AT
THE
COMMENCEMENT OF THE LEASE TERM.
Tenant shall also pay Base Rental for that portion of the month
in which the
Commencement Date occurs. In addition to Base Rental Tenant
shall pay Tenant
electric as set forth in paragraph 3.1(f).
2.2. ADDITIONAL RENTAL.
(a) In addition to the Base Rental for each calendar year
(or
portion thereof) during the term of this Lease, Tenant shall pay
as additional
rent (the "Additional Rental") Tenant's Proportionate Share (as
hereinafter
defined) of the Operating Expenses (as hereinafter defined) for
that year in
excess of the Base Operating Expenses (as hereinafter defined)
and Tenant's
Proportionate Share of the Real Estate Taxes in excess of the
Base Real Estate
Taxes (as hereinafter defined) for that year. Within ninety (90)
days of the
beginning of each calendar year during the term of this Lease,
Landlord shall
deliver to Tenant Landlord's good faith estimate (the "Estimated
Additional
Rental") of the Additional Rental for that year. The Estimated
Additional Rental
shall be paid in equal installments in advance on the first day
of each month.
If Landlord
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does not deliver an estimate to Tenant for any year by January 1
of that year,
Tenant shall continue to pay Estimated Additional Rental based
on the prior
year's estimate. From time to time during any calendar year,
Landlord may revise
its estimate of the Additional Rental for that year based on
either actual or
reasonably anticipated increases in Operating Expenses or Real
Estate Taxes, and
the monthly installments of Estimated Additional Rental shall be
appropriately
adjusted for the remainder of that year in accordance with the
revised estimate
so that by the end of the year, the total payments of Estimated
Additional
Rental paid by Tenant shall equal the amount of the revised
estimate. The
Estimated Additional Rent may be increased no more than two (2)
times during any
calendar year.
(b) "Base Year" means calendar year 2001. If the Commencement
Date
falls on or after September 1, 2001, the "Base Year" shall be
calendar year
2002.
(c) "Base Real Estate Taxes" shall mean Real Estate Taxes of
$3.35
per rentable square foot multiplied by the aggregate Rentable
Area of the
Building for the calendar year 2001.
(d) "Tenant's Proportionate Share" means the percentage
determined
by dividing the actual Rentable Area contained within the
Premises by the
aggregate Rentable Area of the space within the Building, which
percentage is
35.76%. Landlord and Tenant hereby stipulate and agree for all
purposes under
this Lease that the aggregate Rentable Area of the Building is
70,850 square
feet, notwithstanding any different measurement thereof that may
be made
hereafter by or on behalf of either party.
(e) "Operating Expenses" shall mean all expenses, costs and
disbursements of every kind and nature, computed on an accrual
basis, incurred
in connection with the ownership, operation, maintenance and
repair of the
Project, excluding only the costs and expenses described in
Section 2.2(f)
below. The Expense Statement defined do Section 2.2(h) below
shall identify and
reflect any and all credits due Tenant as the result of any
refund, credit, or
other income that Landlord receives as to any Operating Expense.
Without
limiting the generality of the foregoing, Operating Expenses
include the
following, provided that in the event that any of the following
are provided or
rendered for or as to buildings and/or property other than the
Project owned or
operated by Landlord or its affiliates, then the costs of any of
the following
shall be allocated to Operating Expenses by Landlord for the
Project, and the
operating expenses of such other buildings or property, on a
reasonably
equitable basis consistent with other relevant provisions of
this Lease:
(i) Wages and salaries of all persons (up to and including
the
level of building manager) directly engaged in the
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operation, maintenance, cleaning, security or access control for
the Project,
including taxes, insurance and benefits relating thereto.
(ii) All supplies, tools, equipment and materials used in
the
operation and maintenance of the Project, and the reasonable
rental value of
space which may be leased in the Building (which will be
approximately 1,000
square feet initially) or space leased elsewhere, which space is
used as a
Building management office. The costs of such space shall be
allocated to the
buildings which are managed out of such office.
(iii) Cost of all utilities for the Project, including but
not
limited to the cost of water, sewer, gas, electricity, telephone
and cable
service other than utilities paid for directly by the Tenant or
other tenants in
the Building.
(iv) Cost of all maintenance and service agreements for the
Project and the equipment therein, including but not limited to
security
service, window cleaning, snow and ice removal, elevator
maintenance, janitorial
service and landscaping maintenance.
(v) Cost of repairs and general maintenance for the Project
(excluding repairs and general maintenance costs that are paid
by proceeds of
insurance or by Tenant or other third parties).
(vi) Amortization of the cost of installation of capital
investment items that are hereafter installed for the purpose of
reducing
Operating Expenses (for expenditures that reduce Operating
Expenses, the amounts
included in operating Expenses shall be limited to actual
savings realized), to
improve Building life-safety systems or which may be required by
any laws,
ordinances, orders, rules, regulations and requirements
hereafter enacted. All
such costs which relate to the installation of such capital
investment items
shall be amortized over the reasonable life of the capital
investment item.
(vii) The cost of all insurance relating to the Project, as
set forth in Sections 7.1 and 7.2 hereof.
(viii) All property management fees (which shall not be in
excess of the greater of (1) three (3%) percent of gross Rent or
(2) a
percentage which equals five (5%) percent higher than the market
management fees
in the Princeton area).
(ix) All operating expenses, costs, lease payments, and
recoveries in connection with the food service facility and the
fitness center
as provided for in Sections 12.1 and 12.2.
(f) Landlord hereby agrees that the term "Operating
Expenses"
shall not include any of the following expenses:
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(i) debt service, including any fees or commissions
associated
therewith, or rentals under any ground lease;
(ii) costs for which Landlord is entitled to specific
reimbursement as a separate charge by Tenant, by any other
tenant of the
Building or by any other third party;
(iii) costs incurred by Landlord in connection with
procuring
new tenants or the negotiation of any tenant lease in the
Project, including
leasing commissions, legal fees, leasehold improvements expenses
(and/or
allowances therefor), advertising and promotions (excluding
holiday parties and
similar activities provided to all tenants in the Building);
(iv) any other costs and expenses for services, amenities or
materials that are specifically for the benefit of a particular
tenant and that
are of a nature not generally provided to all tenants in the
Building;
(v) except as set forth in Section 2.2(e)(vi) above,
expenditures classified as capital expenditures for federal
income tax purposes
or any non-cash charges such as depreciation or
amortization.
(vi) repairs or other work occasioned by fire, windstorms,
or
other insured casualty or hazard, to the extent that Landlord
shall receive
proceeds of such insurance.
(vii) repairs or rebuilding necessitated by condemnation or
casualty.
(viii) all the items set forth in Section 2.2(e) (i) with
respect to any person above the level of building manager.
(ix) repairs of a structural nature not otherwise permitted
to
be included under Section 2.2(e)(vi) as an Operating
Expense.
(x) legal costs incurred by Landlord in enforcing the
obligations of, or otherwise related to, other tenants in the
Building.
(xi) The cost of any items for which Landlord is reimbursed
by
insurance or otherwise compensated by parties other than tenants
of the Building
pursuant to clauses similar to those contained in this
Lease.
(xii) Any expenses other than property management (see
2.2(e)(viii)) representing an amount paid to a
Landlord-related
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corporation, entity or person which are in excess of the amount
which would be
paid in the absence of such relationship.
(xiii) Services provided for the exclusive benefit of other
tenants of the Building, but not Tenant.
(xiv) All costs for which Tenant or any other tenant in the
Building is being charged other than pursuant to provisions
similar to the
operating expense clauses in this Lease.
(xv) The costs of overtime or other expense to Landlord in
curing its defaults, or in performing work expressly provided in
this Lease to
be borne at Landlord's expense that are otherwise not Operating
Expenses.
(g) All federal, state, county or municipal taxes,
assessments,
fees, impositions, levies and governmental charges relating to
the Project,
whether paid directly by Landlord or through an escrow
arrangement with a
mortgagee or ground lessor, and whether they be by taxing
districts or
authorities presently taxing or assessing the Project or by
others subsequently
created or otherwise, and any other taxes, assessments, fees,
impositions,
levies, and governmental charges attributable to the Project or
its operation,
excluding, however, federal and state taxes on income, death
taxes, franchise
taxes, and any taxes imposed or measured on or by the income of
Landlord from
the operation of the Project; provided, however, that if at any
time during the
term of this Lease, the present method of taxation or assessment
shall be so
changed that the whole or any part of the taxes, assessments,
levies,
impositions or charges now levied, assessed or imposed on real
estate and the
improvements thereof shall be discontinued and as a substitute
therefor, or in
lieu of an addition thereto, taxes, assessments, levies,
impositions or charges
shall be levied, assessed and/or imposed wholly or partially as
a capital levy
or otherwise on the rents received from the Project or the rents
reserved herein
or any part thereof, then such substitute or additional taxes,
assessments,
levies, impositions or charges, to the extent so levied,
assessed or imposed,
shall be deemed to be included within Real Estate Taxes to the
extent that such
substitute or additional tax would be payable if the Project,
were the only
property of Landlord subject to such tax. The foregoing is
hereinafter referred
to as "Real Estate Taxes." It is agreed that Tenant will be
responsible for ad
valorem taxes on its personal property and on the value of the
Leasehold
Improvements in the Premises (as defined in Section 5.1 of the
Lease) to the
extent that the same exceed Building standard allowances (and if
the taxing
authorities do not separately assess Tenant's Leasehold
Improvements, Landlord
may make a reasonable allocation of the ad valorem taxes
assessed on the Project
to give effect to this sentence). Provided, however, Tenant
shall not be
responsible for any taxes on the value of other tenants'
Leasehold Improvements
to the extent that such
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other tenants' Leasehold Improvements exceed Building standard
allowances,
unless the taxing authorities do not separately assess such
tenants' Leasehold
Improvements and Landlord does not make any allocation of taxes
assessed on the
Project. If the Landlord shall receive any tax refund, rebate
recovery, or the
like in respect of any lease year, Landlord may deduct therefrom
any actual
expense incurred in obtaining such tax relief and out of the
remaining balance
Landlord shall promptly pay the Tenant's Proportionate Share to
the Tenant. Upon
Tenant's request, Landlord shall provide Tenant with a written
accounting in
reasonable detail as to any payment due pursuant to the
immediately preceding
sentence.
(h) Within one hundred fifty (150) days after the end of
each
calendar year during the term of this Lease, Landlord shall
provide Tenant a
statement ("Expense Statement") showing the Base Year Operating
Expenses, Base
Real Estate Taxes, and Operating Expenses and Real Estate Taxes
in excess of the
Base Year Operating Expenses and Base Real Estate Taxes
respectively for said
calendar year, prepared in accordance with generally accepted
accounting
principles, and a statement prepared by Landlord comparing
Estimated Additional
Rental paid by Tenant with Additional Rental for such calendar
year. For the
balance of calendar year 2001 the Expense Statement shall only
show Base Year
Operating Expenses, Base Real Estate Taxes, and actual Real
Estate Taxes in
excess of Base Real Estate Taxes. In the event that Estimated
Additional Rental
paid by Tenant exceeds the amount of Additional Rental for said
calendar year,
Landlord shall pay Tenant an amount equal to such excess at
Tenant's option, by
either giving a credit against rentals next due, if any, or by
direct payment to
Tenant within thirty (30) days of the date of such Expense
Statement. In the
event that the Additional Rental exceeds estimated Additional
Rental paid by
Tenant for said calendar year, Tenant shall pay the difference
to Landlord
within thirty (30) days of receipt of the Expense Statement. The
provisions of
this Section 2.2(h) shall survive the expiration or termination
of this Lease.
In regard to Operating Expenses, Tenant shall not be required to
pay any excess
of Additional Rental over Estimated Additional Rental unless it
has received the
Expense Statement in regard to such Operating Expenses within
twelve (12)
calendar months of the end of the calendar year to which the
Expense Statement
applies. With regard to Real Estate Taxes Landlord must notify
Tenant within
twelve (12) months of receipt of any notification from any
taxing authority
regarding an adjustment in Real Estate Taxes.
(i) If the actual Operating Expenses for any calendar year are
less
than the Operating Expenses for the Base Year, Tenant shall not
be entitled to
any credit or refund for such difference, except that if the
Real Estate Taxes
for the Building are less than $3.35 per square foot during any
calendar year of
the Lease, Tenant shall receive a credit equal to the difference
between the
actual Real Estate Taxes and the $3.35 per square foot, pro
rata.
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(j) Notwithstanding any other provision herein to the contrary,
it
is agreed that if the Building is less than ninety-five percent
(95%) occupied
during any calendar year (or portion thereof), an adjustment
shall be made in
computing each component of the Operating Expenses, including
Real Estate Taxes,
that actually varies with the rate of occupancy of the Building
for that year
(including the Base Year and Base Real Estate Taxes) so that the
total Operating
Expenses and Real Estate Taxes shall be computed for such year
as though
ninety-five (95%) percent of the Building had been occupied
during such year.
(k) Tenant shall have the right to request, review and copy,
at
Tenant's expense, Landlord's books and records regarding the
determination of
Operating Expenses for the calendar year that is the basis of an
Expense
Statement only upon written notice to Landlord and scheduling an
appointment in
advance. Such notice must be delivered within thirty (30) days
following
Landlord's delivery of the Expense Statement to Tenant and such
review performed
within ninety (90) days following Tenant's written notice to
Landlord. Any such
review shall be conducted during normal business hours at
Landlord's office in
Houston, Texas, or at Tenant's option, at such other office as
reasonably
designated by Landlord within the New York-New Jersey
metropolitan area. Any
party conducting the review must be a certified public
accountant on Tenant's
staff or with an accounting firm duly licensed in its state(s)
of operation,
reasonably acceptable to Landlord, which approval shall not be
unreasonably
withheld. Tenant may not have such review performed on a
contingency fee basis.
In the event that Landlord and Tenant confirm pursuant to an
Expense Statement
or Landlord's acceptance (subject to dispute resolution below)
of the results of
Tenant's review (as applicable) that Estimated Additional Rental
paid by Tenant
exceeds Additional Rental for said calendar year, Landlord shall
pay Tenant an
amount equal to such excess at Landlord's option, by either
giving a credit
against Rent next due, or by direct payment to Tenant within
thirty (30) days of
the date of such Expense Statement or acceptance.
Notwithstanding the foregoing,
if no Event of Default has occurred and is continuing and Tenant
requests a
refund rather than a credit from Landlord in writing, Landlord
shall refund said
amount to Tenant within thirty (30) days of Landlord's receipt
of Tenant's
request. In the event that the Additional Rental exceeds
Estimated Additional
Rental for said calendar year, Tenant shall pay the difference
to Landlord
within thirty (30) days of receipt of the Expense Statement. If
Tenant does not
object in writing to an Expense Statement within one hundred
twenty (120) days
following the date thereof, specifying the nature of the item(s)
in dispute and
the reasons therefor, then the Expense Statement shall be
considered final and
accepted by Tenant. Any amount due to Landlord as shown on an
Expense Statement,
whether or not disputed by Tenant as provided herein shall be
paid by Tenant
when due as provided in Section 2.02(a) above, without
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prejudice to any such written exception pending resolution
thereof. The results
of any such review shall be held in strict confidence by Tenant
and its
representatives. If Landlord disputes the review, both parties
shall within
twenty (20) days agree upon a neutral third party certified
public accountant
whose determination shall be binding upon both parties. If it is
finally
determined that Tenant overpaid Additional Rental by more than
five (5%)
percent, then Landlord shall pay all reasonable costs of Tenant
incurred in such
proceeding; Tenant shall pay all of Landlord's expenses incurred
in connection
with such proceeding if it is finally determined that Tenant
either underpaid or
overpaid Additional Rent by less than five (5%) percent. The
provisions of this
subsection (i) shall survive the expiration or termination of
this Lease.
2.3. RENTAL PAYMENTS.
(a) Tenant hereby covenants and agrees to pay the Base Rental
and
Estimated Additional Rental (collectively, the "Stated Rentals")
and all other
sums of money as shall become due from and payable by Tenant to
Landlord under
this Lease inclusive of the exhibits hereto (collectively,
"Rent") in lawful
money of the United States or by wire transfer to Landlord at
Landlord's address
as provided herein (or to such other persons or at such other
address(es) as may
be designated by Landlord in writing from time to time) monthly
in advance on
the first day of each month.
(b) If the term of this Lease as described above commences on
other
than the first day of a calendar month or terminates on other
than the last day
of a calendar month, then the installments of Stated Rentals for
such month or
months shall be prorated and the installment or installments so
prorated shall
be paid in advance. The payment for such prorated month shall be
calculated by
multiplying the monthly installment by a fraction, the numerator
of which shall
be the number of days of the lease term occurring during said
commencement or
termination month, as the case may be, and the denominator of
which shall be the
total number of days occurring in said commencement or
termination month.
(c) Tenant shall pay all Rent at the times and in the manner
provided in this Lease, without demand, set-off or counterclaim.
Tenant hereby
acknowledges and agrees that except as otherwise provided in
this Lease,
Tenant's covenants to pay Rent under this Lease are separate and
independent
from Landlord's covenant to provide services and other amenities
hereunder.
(d) In the event any Rent is not paid when due, then Landlord
and
Tenant agree that Landlord will incur additional administrative
expenses, the
amount of which will be difficult, if not impossible to
determine. Accordingly,
in addition to the obligation to pay Rent, Tenant shall pay to
Landlord a late
charge
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for such late payment in the additional amount of four percent
(4%) of the
amount of such late payment of Rent, except in the case of the
first instance of
lateness within any period of 12 consecutive calendar months, in
which case said
four (4%) percent late charge shall be due and owing only in the
event Landlord
has provided Tenant with written notice of such late payment,
and Tenant has not
made the payment within five (5) calendar days after receipt of
said notice.
(e) All Rent shall bear interest from the date due until paid at
a
rate (the "Default Rate") equal to five (5%) percent above the
Prime Rate
reported in the Money Rates column or section of the most recent
issue of The
Wall Street Journal ("Prime Rate"), automatically adjusting with
each change in
the Prime Rate.
2.4. SECURITY DEPOSIT. On the date of execution of this Lease by
Tenant,
there shall be due and payable by Tenant a security deposit in
an amount equal
to 20 monthly installment(s) of the initial Base Rental, such
deposit to be held
for the performance by Tenant of Tenant's covenants and
obligations under the
Lease, it being expressly understood that the deposit shall not
be considered an
advance payment of Rent or a measure of Landlord's damages in
case of default by
Tenant. Upon the commencement of the second lease year, Landlord
will reduce the
security deposit by three (3) months per year until the security
deposit is
equal to three (3) months of Base Rental. The security deposit
may be in the
form of cash or a letter of credit from a bank, and in form,
satisfactory to
Landlord.
Upon the occurrence of any Event of Default by Tenant under this
Lease,
Landlord may, from time to time, without prejudice to any other
remedy, use the
security deposit to the extent necessary to make good any
arrears of Rent or
other payments hereunder and/or any damage, injury, expense or
liability caused
to Landlord by such event of default or breach of covenant.
Following any such
application of the security deposit, Tenant shall pay to
Landlord on demand the
amount so applied in order to restore the security deposit to
the amount thereof
existing prior to such application. Any remaining balance of the
security
deposit shall be returned by Landlord to Tenant within thirty
(30) days after
the termination of this Lease; provided, however, Landlord shall
have the right
to retain and expend such remaining balance (a) to reimburse
Landlord for any
and all Rent or other sums due hereunder that have not been paid
in full by
Tenant and/or (b) for cleaning and repairing the Premises if
Tenant shall fail
to deliver same at the termination of this Lease in a neat and
clean condition
and in as good a condition as existed at the date of possession
of same by
Tenant, ordinary wear and tear only excepted. If the security
deposit is applied
twice by Landlord during the Lease term, following the second
application,
Landlord may require Tenant to restore the depleted security
deposit plus an
additional security deposit equal to two (2) additional monthly
installments of
Stated Rentals at the rate payable for the first month of the
Lease term.
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<PAGE>
3.
3.1. SERVICES. Provided no Event of Default (as hereinafter
defined) has
occurred and is continuing hereunder, and subject to the
provisions of Sections
3.2 and 3.3 below, Landlord shall furnish the following services
and amenities
(collectively, the "Required Services") to Tenant (and its
assignees and
subtenants permitted hereunder) while occupying the
Premises:
(a) Tempered and cold domestic water at those points of
supply
provided for general use of the tenants of the Building;
(b) Central heat, ventilation and air conditioning, at such
times,
at such temperatures and in such amounts, all as more
particularly described on
EXHIBIT F attached hereto and made a part hereof for all
purposes. Landlord will
pay the expenses of maintenance and operating the heating and
air conditioning
equipment which shall be an Operating Expense.
(c) Electric lighting service for all public areas of the
Building,
Project and service areas of the Building in the manner and to
the extent deemed
by Landlord to be in keeping with the standards of other first
class office
buildings of comparable age and size in the office market area
in which the
Building is located.
(d) Janitorial service comparable to that provided by landlords
of
other class A office buildings (including, but not limited to,
bonding) of
comparable age and size in the office market in which the
Building is located
and consistent with other similar tenants in the Building on a
five (5) day per
week basis in accordance with the specifications set forth in
EXHIBIT H attached
hereto; provided, however, if Tenant's floor coverings or other
improvements
require special cleaning or care in excess of that provided for
by Landlord in
EXHIBIT H, Landlord will provide such additional cleaning or
care only upon
special agreement with Tenant; it being understood and agreed at
Tenant's
request that Landlord will not provide any janitorial service
for Tenant's
computer room or executive offices which are locked and not
accessible for such
service at any time. Any discernable reduction, as determined by
Landlord, in
janitorial expenses as a result of Landlord not providing for
cleaning of
Tenant's computer room and such locked offices shall be passed
through to Tenant
as reduction in Additional Rent. Tenant shall provide such
janitorial services
either by its own employees or by separate arrangement with
Landlord's cleaning
service. Tenant shall not be permitted to retain any third party
janitorial
service for the Premises.
(e) On-site security equipment for the Building perimeter;
provided,
however, that Tenant agrees that Landlord shall not be
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<PAGE>
responsible for the adequacy or effectiveness of such security
equipment;
(f) Electricity during normal operating hours as provided in
EXHIBIT
D. Electricity for the Premises (other than electricity for the
common areas and
HVAC) will be separately metered, invoiced directly to Tenant by
the utility
provider, and paid for by the Tenant directly to the utility
provider. If any
electrical equipment requires air conditioning in excess of
Building standard as
reasonably determined by Landlord's engineer, the same shall be
installed with
applicable meters, at Tenant's expense and Tenant shall pay all
operating costs
relating thereto, including, without limitation, any additional
maintenance,
repairs and utilities related to such electrical equipment and
above Building
standard air conditioning equipment. In the event Landlord
receives a special
bulk rate from the utility company, Tenant shall receive the
benefit of such
bulk rate.
(g) On-site management (i.e., building personnel located within
one
(1) mile, of the Building) by an affiliate of the Patrinely
Group, LLC, or by a
third party selected by the Patrinely Group, as long as Landlord
controls the
Building;
(h) Non-exclusive passenger elevator service to the Premises
twenty-four (24) hours per day;
(i) Maintenance and repair of the roof, exterior walls,
load-bearing
columns, foundation, floor slabs, and other structural
components and base
building components of the Project including but not limited to
the following:
mechanical, electrical and plumbing systems of the Project,
common areas, public
restrooms, restrooms on multi-tenant floors, parking area, and
exterior lighting
and landscaping of the Project;
(j) Reasonably complete and prompt snow and ice removal for
the
Building and parking area (including salting of walks) during
the operating
hours of the Building.
(k) In the event of deregulation of any utility services,
Landlord
will use reasonable efforts to obtain service from the lowest
cost provider as
long as that provider is deemed in Landlord's sole judgment to
be reliable and
capable of delivering such service.
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<PAGE>
3.2. GOVERNMENTAL REGULATIONS. The obligations of Landlord to
provide the
Required Services shall be subject to governmental regulation
thereof (i.e.,
rationing, temperature control, etc.) and any such regulation
that impairs
Landlord's ability to provide the Required Services as herein
stipulated shall
not constitute a default hereunder but rather providing the
applicable Required
Services to the extent allowed pursuant to such regulations
shall be deemed to
be full compliance with the obligations and agreements of
Landlord hereunder.
3.3. FAILURE TO PROVIDE REQUIRED SERVICES. To the extent any of
the
Required Services require electricity, gas and water supplied by
public
utilities or others, Landlord's covenants hereunder shall only
impose on
Landlord the obligation to use its good faith efforts to cause
the applicable
public utilities or other providers to furnish the same. Failure
by Landlord to
furnish any of the Required Services to any extent, or any
cessation thereof,
due to failure of any public utility or other provider to
furnish service to the
Building, or any other cause beyond the reasonable control of
Landlord, shall
not render Landlord liable in any respect for damages to either
person or
property, nor be construed as an eviction of Tenant, nor result
in an abatement
of Rent, nor relieve Tenant from fulfillment of any covenant or
agreement
hereof. In the event of any failure by Landlord to furnish any
of the Required
Services to any extent, or any cessation thereof, due to
malfunction of any
equipment or machinery, or any other cause within the reasonable
control of
Landlord, Tenant shall have no claim for rebate of Rent or
damages on account
thereof, provided that Landlord utilizes its commercially
reasonable efforts to
promptly repair said equipment or machinery and to restore said
Required
Services as soon thereafter as is reasonably practicable.
Notwithstanding the
previous sentence, in the event due to causes within the
reasonable control of
Landlord, the HVAC or electricity to the Premises is terminated
or substantially
reduced such that the Premises are rendered untenantable in the
reasonable
determination of Landlord and Tenant for seven (7) consecutive
days, then Base
Rent shall abate on a per diem basis until such services are
restored in a
manner reasonably consistent with the level of such HVAC or
electrical services
provided prior to the event giving rise to the abatement. In no
event shall
there be any abatement if the problem with the HVAC or the
electrical services
was caused in whole or in part by Tenant, its agents, employees,
contractors,
sublessees or licensees or if Tenant's sublessees or licensees
are not entitled
to rent abatement from Tenant.
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<PAGE>
3.4. ADDITIONAL SERVICES. Tenant hereby acknowledges and agrees
that
Landlord is obligated to provide only the Required Services
under this Lease,
and that Landlord, its agents and representatives, have made no
representations
whatsoever of any additional services or amenities to be
provided by Landlord
now or in the future under this Lease. Notwithstanding the
foregoing, Tenant
recognizes that Landlord may, at Landlord's sole option, elect
to provide
additional services or amenities for the tenants of the Building
from time to
time, and hereby agrees that Landlord's discontinuance of any
provision of any
such additional services or amenities shall not constitute a
default of Landlord
under this Lease nor entitle Tenant to any abatement of or
reduction in Rent.
3.5. LANDLORD'S OBLIGATION. Subject to the provisions of this
Lease and
provided no Event of Default has occurred and is continuing
hereunder, Landlord
agrees (as an Operating Expense) to keep and maintain the
Project in a manner
and at levels reasonably consistent with other first-class
office buildings of
comparable age and size in the Princeton, New Jersey office
market which
obligation includes the common areas of the Building and Project
and the
structural portions of the Building, taking into consideration
normal wear and
tear. Furthermore, Landlord agrees to make reasonable efforts to
give to Tenant
reasonable advance notice (except in the event of any matter
reasonably
considered by Landlord to be an emergency) of any planned
shutdowns of services
materially affecting in Landlord's reasonable judgment, Tenant's
use of the
common areas or the Premises.
4.
4.1. CARE OF THE PREMISES.
(a) Tenant shall not commit or allow to be committed any waste
or
damage to any portion of the Premises or the Building, and shall
at its own cost
and expense, maintain the Premises in good condition and repair.
If Tenant fails
to make required repairs or replacements to the Premises
promptly, Landlord may,
at its option upon three business (3) days prior written notice
to the Tenant,
except in the event of an emergency as determined in the sole
discretion of
Landlord, make such repairs or replacements, and Tenant shall
repay the cost
thereof plus a charge of fifteen percent (15%) to Landlord on
demand. Tenant
shall not undertake the repair or replacement of any damage or
injury to the
structural components of the Building or its mechanical,
electrical or plumbing
systems caused by Tenant, its agents, contractors, employees,
invitees or
visitors, but shall reimburse Landlord for all costs and
expenses incurred in
effecting any such repair or replacement, plus a charge of
fifteen percent
(15%).
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<PAGE>
(b) Unless otherwise expressly stipulated herein, Landlord shall
not
be required to make any improvements to or repairs of any kind
or character to
the Premises during the term of this Lease.
(c) Upon termination of this Lease, by lapse of time or
otherwise,
Tenant shall, subject to the provisions of Section 5.2(c),
deliver up the
Premises to Landlord in as good condition as existed on the
Commencement Date,
ordinary wear and tear, casualty not caused by Tenant and
condemnation only
excepted. Upon such termination of this Lease, Landlord shall
have the right to
re-enter and resume possession of the Premises.
4.2. ENTRY FOR REPAIRS AND INSPECTION. Tenant shall permit
Landlord and
its contractors, agents or representatives to enter into and
upon any part of
the Premises at all reasonable hours and upon reasonable notice
(except for
entry after-hours for cleaning and in the case of emergency, in
which events no
notice shall be required) to inspect or clean the same, to make
repairs,
alterations or additions thereto, to show the same to
prospective lenders or
purchasers to determine whether Tenant is performing its
obligations hereunder
or for any other purpose as Landlord may deem necessary or
desirable and, during
the last twelve (12) months of the initial term (so long as
Tenant has not
exercised its option to renew the Lease) or any extension
thereof, to show the
same to prospective tenants. Notwithstanding the foregoing, the
computer room(s)
shall be entered only in the event of an emergency, or for a
prospective
purchaser or lender with the prior approval of Tenant (which
approval shall not
be unreasonably withheld), and provided a representative of
Tenant shall have a
right to be present. Landlord agrees to exercise reasonable good
faith efforts
(i) to prosecute completion of any work within the Premises
diligently, (ii) to
minimize interference with Tenant's use, access, occupancy,
safety and quiet
enjoyment of the Premises, and (iii) to protect Tenant's
property located in the
Premises from damage. Entry to the Premises and the conduct of
work therein by
Landlord and its contractors, agents or representatives pursuant
to this Section
4.2 shall not constitute a trespass or an eviction (constructive
or otherwise)
nor shall Tenant be entitled to any abatement or reduction of
Rent or claim for
damages for any injury to or interference with Tenant's
business, loss of
occupancy or quiet enjoyment or for any other consequential
damages by reason
thereof; provided, however, the Landlord shall be responsible
for property
damage resulting from wilful destruction or negligence in the
performance of
work done by Landlord and its contractors, agents or
representatives pursuant to
this Section 4.2.
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4.3. NUISANCE. Tenant shall conduct its business and control its
agents,
employees, invitees, contractors and visitors in such manner as
not to create
any nuisance, or unreasonably interfere with, annoy or disturb
any other tenant,
or Landlord in its operation of the Building.
4.4. LAWS AND REGULATIONS; RULES OF THE BUILDING. Tenant, at
Tenant's
expense, shall comply with, and Tenant shall cause its visitors,
employees,
contractors, agents and invitees to comply with (a) all laws,
ordinances,
orders, rules, regulations and other requirements of
governmental authority
which impose any duty with respect to or otherwise relate to the
use, condition,
occupancy, maintenance or alteration of the Premises, whether
now in force or
hereafter enacted, and (b) all rules and regulations reasonably
adopted and
altered by Landlord from time to time for the use, care and
cleanliness of the
Building and for preservation of good order therein (the
"Building Rules"),
which Building Rules will be sent by Landlord to Tenant in
writing and shall be
thereafter carried out and observed by Tenant, its employees,
contractors,
agents, invitees and visitors. The current Building Rules are
attached hereto as
EXHIBIT G and made a part hereof for all purposes.
Notwithstanding anything
stated in this Paragraph to the contrary, it shall be Landlord's
responsibility
to obtain the certificate of occupancy pursuant to the Work
Letter attached as
EXHIBIT D hereto.
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4.5. HAZARDOUS SUBSTANCES.
(a) Landlord represents that the Project is not an
"industrial
establishment" as defined in ISRA and Landlord shall not conduct
any operations
that shall cause the Project on the Premises to be deemed an
"industrial
establishment." Landlord shall clean up and remediate, at its
sole cost, any
Hazardous Substance caused by it or its employees to be
introduced to the
Building or Project. Landlord has delivered to, and Tenant
acknowledges receipt
of, the Phase I Environmental Report dated September 1998, the
Memorandum of
Agreement for Non-Residential Property dated July 23, 1999, Deed
Notice dated
October 15, 1999 and No Further Action Letter and Covenant Not
to Sue dated
February 8, 2000 (collectively the "Reports"). To the best of
Landlord's
knowledge the Reports disclose all the Hazardous Substances on
or in the Project
as of the dates of such Reports and, to the best of Landlord's
knowledge, it has
disclosed all third-party reports or studies in its possession
which disclose
the existence of any other Hazardous Substances in or on the
Project.
(b) Landlord shall not permit other tenants in the Building,
to
cause or permit any Hazardous Substance to be used, stored,
generated or
disposed of on or in the Building or the Project except for
small quantities
customarily used in connection with general office uses.
Landlord shall enforce
the provisions of leases with other tenants in the Building to
cause the tenants
to clean up and remediate, at their sole cost, any Hazardous
Substance caused by
them, their agents, employees, contractors or invitees to be
introduced to the
Building or Project.
(c) Except for small quantities of Hazardous Substances
customarily
used in connection with general office uses, Tenant shall not
cause or permit
any Hazardous Substance to be used, stored, generated or
disposed of on or in
the Building, the Project or the Premises, by Tenant, Tenant's
agents,
employees, contractors or invitees without first obtaining
Landlord's written
consent, which may be given or withheld in Landlord's sole
discretion. If any
Hazardous Substances are used, stored, generated, or disposed of
on or in the
Building, the Project or the Premises, including those
customarily used in
connection with general office uses, or if the Building, the
Project or the
Premises, become contaminated in any manner or otherwise become
affected by any
storage, release or discharge of a Hazardous Substance caused by
Tenant,
Tenant's agents, employees, contractors or invitees, Tenant
shall immediately
notify Landlord of the release or discharge of a Hazardous
Substance and Tenant
shall indemnify, defend and hold harmless Landlord and its
partners from and
against any and all claims, damages, fines, judgments,
penalties, costs,
liabilities, or losses (including,
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without limitation, a decrease in value of the Project, the
Building or the
Premises, damages caused by loss or restriction of rentable or
usable space, or
any damages caused by adverse impact on marketing of the space,
and any and all
sums paid for settlement of claims, attorneys' fees, consultant,
and expert
fees) arising during or after the term of this Lease, and
arising as a result of
such contamination, release or discharge. This indemnification
includes, without
limitation, any and all costs incurred because of any
investigation of the site
or any cleanup, removal, or restoration mandated by federal,
state or local
agency or political subdivision or required by any Interest
Holder. Without
limitation of the foregoing, if Tenant causes or permits the
presence of any
Hazardous Substance on the Premises, the Building or the Project
and the same
results in any contamination, release or discharge, Tenant shall
promptly, at
its sole expense, take any and all necessary actions to return
the Premises, the
Building or the Project, to the conditions existing prior to the
presence of any
such Hazardous Substance on the Premises, the Building or the
Project and in
compliance with all applicable laws. Tenant shall first obtain
Landlord's
approval for any such remedial action and the approval of the
contractors doing
the work. Landlord shall have the right to do the work, at
Tenant's sole cost
and expense, if Landlord determines an emergency exists or if
necessary to
protect the health and safety of other tenants of the
Project.
(d) As used herein, "Hazardous Substance" means any substance
that
is toxic, ignitable, reactive, infectious or corrosive and that
is regulated by
any local government, the State of New Jersey or the United
States Government.
"Hazardous Substance" includes, any and all material or
substances that are
defined as "hazardous waste," "extremely hazardous waste," or a
"hazardous
substance" pursuant to federal, state or local governmental law.
"Hazardous
Substance" includes, but is not restricted to, asbestos,
polychlorobiphenyls,
and petroleum.
(e) Tenant's indemnification of Landlord under Section 4.5(c)
hereof
shall survive the expiration or termination of this Lease.
(f) Landlord, with respect to Landlord's Work and any work
performed
by Landlord on a going forward basis, and Tenant, with respect
to Tenant's Work
and with respect to any work performed by or on behalf of Tenant
at the Premises
on a going forward basis, shall ensure that no Hazardous
Substances (including
without limitation, asbestos) are used in the construction of,
or become present
on, the Premises in a form or quantities that will present a
health risk. In the
event repairs and modifications have been necessitated by
Tenant's breach of a
covenant or obligation hereunder, the cost of such repairs and
modifications
shall be the sole responsibility of Tenant and shall be paid by
Tenant to
Landlord within thirty (30)
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days of receipt by Tenant of an invoice from Landlord for the
cost of such
repairs and modifications. Any repairs and modifications
required as a result of
a breach by Landlord of its responsibilities hereunder shall be
at Landlord's
sole cost.
4.6. ISRA COMPLIANCE.
(a) Tenant shall, at Tenant'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). Tenant shall, at Tenant's own expense, make
all submissions
to provide all information to, and comply with all requirements
of, the
Industrial Site Evaluation Element or its successor ("Element")
of the New
Jersey Department of Environmental Protection or its successor
("Element") of
the New Jersey Department of Environmental Protection or its
successor (NJDEP).
(b) Tenant's obligations under this paragraph shall arise if
there
is a closing of Tenant's operations, a transfer of Tenant's
ownership or
operations, or a change in Tenant's ownership at or affecting
the Premises
pursuant to ISRA.
(c) Provided this Lease is not previously canceled or terminated
by
either party or by operation of law, Tenant shall commence its
submission to the
Element in anticipation of the end of the lease term, no later
than one year
prior to the expiration of the lease term.
(d) For purposes of this paragraph, the term "Environmental
Documents" shall mean all environmental documentation concerning
the Premises or
its environs, in the possession or under the control of Tenant,
including
without limitation all sampling plans, cleanup plans,
preliminary assessment
plans and reports, site investigation plans and reports,
remedial investigation
plans and reports, remedial action plans and reports or the
equivalent, sampling
results, sampling result reports, data, diagrams, charts, maps,
analyses,
conclusions, quality assurance/quality control documentation,
correspondence to
or from the Element or any other municipal, county, state or
federal
governmental authority, submissions to the Element or any other
municipal,
county, state, or federal governmental authority, and
directives, orders,
approvals, and disapprovals issued by the Element or any other
municipal,
county, state, or federal governmental authority. During the
term of this Lease
and subsequently promptly upon receipt by Tenant or Tenant's
representatives,
Tenant shall deliver to Landlord all Environmental Documents
concerning or
generated by or on behalf of Tenant with respect to the
Premises, whether
currently or hereafter existing.
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(e) Tenant shall notify Landlord in advance of all meetings
scheduled between Tenant or Tenant's representatives and the
NJDEP or any other
environmental authority, and Landlord and Landlord's
representatives shall have
the right, without the obligation, to attend and participate in
all such
meetings.
(f) Should the Element or any other division of the NJDEP or
other
governmental authority determine that a remedial action workplan
be prepared and
that remediation be undertaken because Tenant has caused fill
materials, or
hazardous or toxic substances, pollutants, or wastes exist, or
have been
spilled, discharged, or placed in, on, under, or about the
Premises during the
lease term, Tenant shall, at Tenant's own expense, promptly
prepare and submit a
remedial action workplan and establish a remediation funding
source, which plan
and funding source shall be satisfactory to Landlord, and shall
promptly
implement the approved remedial action workplan to the
satisfaction of Landlord.
In no event shall Tenant's remedial action involve engineering
or institutional
controls, including without limitation capping, deed notice,
declaration of
restriction, or other institutional control notice pursuant to
P.L. 1993, ch.
139, and notwithstanding the NJDEP's requirements, Tenant's
remedial action
shall meet the most stringent NJDEP remediation standards for
soil, surface
water, and groundwater. Promptly upon completion of all required
investigatory
and remedial activities, Tenant shall restore the affected areas
of the Premises
from any damage or condition caused by the work, including
without limitation,
closing, pursuant to law, any wells installed at the
Project.
(g) At no expense to Landlord, Tenant shall promptly provide
all
information requested by Landlord or the NJDEP for preparation
of a
non-applicability affidavit, de minimus quantity exemption
application, limited
conveyance application or other submission and shall promptly
sign such
affidavits and submissions when requested by Landlord or the
NJDEP.
(h) Should Tenant's operations at the Premises be outside of
those
industrial operations covered by ISRA, Tenant shall, at Tenant's
own expense,
obtain a letter of non-applicability or de minimus quantity
exemption from the
Element prior to termination of the lease term, and shall
promptly provide
Tenant's submission and the Element's exemption letter to
Landlord. Should
Tenant not be able to obtain a letter of non-applicability or a
de minimus
quantity exemption from the Element, then Tenant shall, at
Landlord's option,
hire a consultant satisfactory to Landlord to undertake sampling
at the Premises
sufficient to determine whether fill materials, or hazardous or
toxic
substances, pollutants, or wastes exist or have been spilled,
discharged or
placed in, on, under, or about the Premises during the lease
term. Tenant's
sampling shall also establish the integrity of all underground
storage tanks at
the Premises. Should the sampling reveal any spill, discharge,
or placing
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of fill materials, or of hazardous or toxic substances,
pollutants, or wastes,
in, on, under, or about the Premises caused by Tenant, then
Tenant shall, at
Tenant's expense, prior to the expiration or earlier termination
of the lease
term, promptly remediate the Premises to the satisfaction of
Landlord and the
NJDEP. In no event shall Tenant's remedial action involve
engineering or
institutional controls, including without limitation capping,
deed notice,
declaration of restriction, or other institutional control
notice pursuant to
P.L. 1993, ch. 139, and notwithstanding the NJDEP's
requirements, Seller's
remedial action shall meet the most stringent NJDEP remediation
standards for
soil, surface water, and groundwater.
(i) If Tenant fails to obtain either (A) a non-applicability
letter;
(B) a de minimus quantity exemption; (C) an unconditional
approval of Tenant's
negative declaration; or (D) a no further action letter with
respect to Tenant's
remedial action workplan (collectively referred to as "ISRA
Clearance") from the
Element; or fails to remediate the Premises pursuant to
subparagraph (h), above,
prior to the expiration or earlier termination of the lease term
as to
conditions caused by Tenant, then upon the expiration or earlier
termination of
the lease term Landlord shall have the option either to consider
the Lease as
having ended or to treat Tenant as a holdover tenant in
possession of the
Premises. If Landlord considers the Lease as having ended, then
Tenant shall
nevertheless be obligated to promptly obtain ISRA Clearance as
to conditions
caused by Tenant or fulfill the obligations set forth in
subparagraph (h),
above, as the case may be. If Landlord treats Tenant as a
holdover tenant in
possession of the Premises, then Tenant shall monthly pay to
Landlord double the
regular and additional monthly rent that Tenant would otherwise
have paid, until
such time as Tenant obtains ISRA Clearance or fulfills its
obligations under
subparagraph (h), above, as the case may be, and during the
holdover period all
of the terms of this Lease shall remain in full force and
effect.
Notwithstanding anything contained in this Section 4.6(i) to the
contrary, if
the failure to obtain ISRA clearance is not due to acts of the
Tenant, the
Tenant shall not be obligated to pay any additional rental if
the Lease cannot
be terminated due to such non-Tenant caused failure to obtain
ISRA clearance.
(j) Tenant represents and warrants to Landlord that Tenant
intends
to use the Premises as set forth in Section 1.5, which
operations have the
following Standard Industrial Classification (SIC) numbers as
defined by the
most recent edition of the Standard Industrial Classification
Manual published
by the Federal Executive Office of the President, Office of
Management and
Budget: _____. Tenant's use of the Premises shall be restricted
to the
classifications set forth above unless Tenant obtains Landlord's
prior written
consent to any change in use of the Premises. Prior to the
Commencement Date of
Tenant's Lease term, Tenant shall supply to
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Landlord an affidavit of an officer of Tenant ("Officer's
Affidavit) setting
forth Tenant's SIC numbers and a detailed description of the
operations and
processes Tenant shall undertake at the Premises, organized in
the form of a
narrative report including a description and quantification of
hazardous or
toxic substances, pollutants, and wastes to be generated,
manufactured, refined,
transported, treated, stored, handled, or disposed of at the
Premises. Following
commencement of the Lease term, Tenant shall notify Landlord by
way of a
supplemental Officer's Affidavit as to any changes in Tenant's
operation, SIC
numbers, or use, generation, manufacture, refining,
transportation, treatment,
storage, handling, or disposal of hazardous or toxic substances,
pollutants, and
wastes. Tenant shall not commence or alter any operations at the
Premises prior
to (A) obtaining all required operating and discharge permits or
approvals,
including but not limited to air pollution control permits and
water pollution
discharge elimination system permits from the NJDEP, from all
governmental or
public authorities having jurisdiction over Tenant's operations
or the Premises,
and (B) providing a copy of the permits or approvals to
Landlord.
(k) Upon twenty-four hours notice, Tenant shall permit Landlord
and
Landlord's agents, servants and employees, including but not
limited to legal
counsel and environmental consultants and engineers, access to
the Premises for
the purposes of environmental inspection and sampling during
regular business
hours, or during other hours either by agreement of the parties
or in the event
of any environmental emergency. Tenant shall not restrict access
to any part of
the Premises, and Tenant shall not impose any conditions to
access. In the event
that Landlord's environmental inspection shall include sampling
and testing of
the Premises, Landlord shall use its best efforts to avoid
unreasonably
interfering with Tenant's use of the Premises and, on completion
of sampling and
testing, shall, to the extent reasonably practicable, repair and
restore the
affected areas of the Premises from any damage caused by the
sampling and
testing.
(l) Tenant shall indemnify, defend and hold harmless Landlord
from
and against all claims, liabilities, losses, damages, penalties
and costs,
foreseen or unforeseen, including without limitation, counsel,
engineering and
other professional or expert fees, which Landlord may incur
resulting directly
and wholly from Tenant's or Tenant's agents' or employees'
action or non-action
with regard to Tenant's obligations under this Section.
(m) This Section shall survive the expiration or earlier
termination
of this Lease. Tenant's failure to abide by the terms of this
Section shall be
restrainable by injunction.
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<PAGE>
(n) Landlord shall cooperate with Tenant in regard to
Tenant's
compliance with ISRA requirements to the extent Landlord's
cooperation is
reasonably necessary.
(o) Tenant shall cooperate with Landlord in regard to compliance
by
Landlord or another tenant of the Building with ISRA
requirements to the extent
Tenant's cooperation is reasonably necessary.
(p) The Landlord shall indemnify the Tenant under Sections 4.5
and
4.6 hereof for the failure of the Landlord to comply with
Sections 4.5 and 4.6
hereof, including ISRA compliance and the use of Hazardous
Substances at the
Project. In addition, the Landlord's indemnification under this
subsection shall
survive the expiration or termination of the Lease.
5.
5.1 CONDITION OF THE PREMISES AND THE PROJECT.
(a) The Premises shall be delivered to Tenant, and Tenant
shall
accept same, with the improvements to be provided by Landlord as
provided in
EXHIBIT D. As used in this Lease, the term "Leasehold
Improvements" means any
and all improvements and tenant finish existing in the Premises
as of the
Commencement Date including Tenant's Work as set forth and
described in EXHIBIT
D, as well as any and all Premises Alterations (as hereinafter
defined) and
subsequent improvements made to the Premises during the term of
this Lease.
(b) Tenant acknowledges that no representations as to the
condition
of the Premises or the Project, nor promises to alter, remodel
or improve the
Premises or the Project, have been made by Landlord, except as
are expressly set
forth in this Lease.
5.2 ALTERATIONS TO THE PREMISES OTHER THAN WORK PURSUANT TO
EXHIBIT D.
(a) Without first obtaining Landlord's written approval of
Tenant's
contractors and the plans and specifications therefor, which
approval shall not
be unreasonably withheld with regard to non-structural
alterations, Tenant shall
not make or allow to be made any alterations, physical additions
or other
Leasehold Improvements (including fixtures) in or to the
Premises (such
alterations, additions and other Leasehold Improvements being
herein called
"Premises Alterations"); or place safes, vaults, file systems or
other heavy
furniture or equipment within the Premises in excess of a weight
of eighty (80)
pounds per square foot. Advance written approval shall not be
required for the
non-structural installation of telephones, telegraph equipment,
or electrical
devices and attachments. To the extent the Building Rules
(EXHIBIT G) require
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<PAGE>
Landlord's consent to positioning of safes, files, filing
systems and other
heavy equipment, such consent shall not unreasonably be
withheld. If such
approval is given, prior to commencement of construction Tenant
shall deliver to
Landlord all building permits required for such construction, a
certificate of
insurance from Tenant's contractors confirming the existence of
all insurance
reasonably required by Landlord and a copy of the executed
construction contract
covering such Premises Alterations. Landlord's approval, if
given, shall create
no responsibility or liability on the part of Landlord for, or
warranty by
Landlord with respect to, the completeness or design sufficiency
or compliance
with any laws, ordinances, orders, rules, regulations or other
requirements of
governmental authority applicable thereto. Tenant shall pay to
Landlord, upon
demand, a fee to reasonably compensate Landlord for the actual
cost of review
and monitoring the construction of such Premises Alterations.
Tenant shall
deliver to Landlord a copy of the "as-built" plans and
specifications for all
Premises Alterations on a diskette in AutoCAD or compatible
format.
(b) With respect to all Premises Alterations, Tenant shall have
sole
responsibility for payment of, and shall pay, such contractors.
Tenant shall
have sole responsibility for coordinating, and shall coordinate,
the work to be
supplied or performed by such contractors, both among themselves
and with any
contractors selected by the Landlord. Each such contractor shall
perform its
work in a good and workmanlike manner and shall not interfere
with or hinder the
Landlord or any other contractor in any manner. With respect to
all Premises
Alterations, there shall be no labor dispute of any nature
whatsoever involving
any such contractor or any workmen of such contractor or the
unions of which
they are members; and if such a labor dispute exists or comes
into existence the
Tenant shall forthwith, at the Tenant's sole cost and expense,
remove all such
contractors and their workmen from the Premises, from the
Building, and from the
Project. During any Premises Alterations, Tenant shall have the
sole
responsibility for the security of the Premises and all
contractors' materials
equipment and work, regardless of whether their work is in
progress or
completed.
(c) All items of Tenant's Work, Premises Alterations and
Leasehold
Improvements whether or not the cost is covered by the
Allowance, as defined in
EXHIBIT D (other than Tenant's trade fixtures) shall immediately
become the
property of Landlord and shall be surrendered to Landlord with
the Premises as
part thereof at the end of the Lease term; provided, however,
that if at the
time the Working Drawings are approved or Landlord's consent is
obtained to any
Premises Alterations, Landlord requests Tenant to remove any
such items
installed by or on behalf of Tenant, Tenant shall cause the same
to be removed
at Tenant's expense on or before the expiration of the Lease
term, or shall
reimburse Landlord for the cost of such removal, as elected by
landlord. It is
understood and agree that
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Tenant shall be obligated without further request to remove at
its cost and
expense all of Tenant's cable installed in Tenant's computer
room or elsewhere
in the Premises as well as the raised floor in Tenant's computer
room. Tenant
shall remove all of Tenant's personal property from the Premises
on or before
the expiration of the Lease term except as provided in this
Section 5.2(c) as to
Premises Alterations. Any personal property belonging to Tenant
or to any other
person or entity which is left in the Premises after the date
this Lease is
terminated for any reason shall be deemed to have been
abandoned. In such event,
Landlord shall have the right to store such property at Tenant's
sole cost
and/or to dispose of it in whatever manner Landlord considers
appropriate,
without waiving its right to claim from Tenant all expenses and
damages caused
by Tenant's failure to remove such property, and Tenant and any
other person or
entity shall have no right to compensation from or any other
claim against
Landlord as a result.
(d) Tenant shall indemnify and hold harmless Landlord from
and
against all costs (including reasonable attorneys' fees and
costs of suit),
losses, liabilities, or causes of action arising out of or
relating to any
Premises Alterations, including but not limited to any
mechanics' or
materialmen's liens asserted in connection therewith. The Tenant
shall not
permit or suffer the filing of any mechanic's notice of
intention or other lien
or prospective lien by any contractor or subcontractor with
respect to the
Building or the Land or any interest therein. Should any
mechanics' or other
liens be filed against any portion of the Building and/or the
Land or any
interest therein by reason of Tenant's acts or omissions or
because of a claim
against Tenant or its contractors, Tenant shall cause the same
to be canceled or
discharged of record or provide such payment bond(s) from a
reputable,
financially sound institutional surety as will in the reasonable
opinion of the
Landlord, or any Interest Holder (as that term is defined in
Section 11.1) be
adequate to assure the complete discharge and release thereof
within fifteen
(15) days after written notice by Landlord. If Tenant shall fail
to cancel or
discharge said lien or liens, or provide said bond(s) within
said fifteen (15)
day period, which failure shall be deemed to be a default
hereunder, Landlord
may, at its sole option and in addition to any other remedy of
Landlord
hereunder, cancel or discharge the lien or liens and upon
Landlord's demand,
Tenant shall promptly reimburse Landlord for all actual costs
incurred in
canceling or discharging such lien or liens. Tenant's
indemnification of
Landlord under this paragraph shall survive the expiration or
termination of
this Lease.
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<PAGE>
5.3 ALTERATIONS TO THE BUILDING. Notwithstanding anything herein
to the
contrary, Landlord hereby expressly reserves the right in its
reasonable
discretion to (a) temporarily or permanently change the location
of, close,
block or otherwise alter any entrances, corridors, skywalks,
tunnels, doorways
or walkways leading to or providing access to the Building or
any part thereof
or otherwise restrict the use of same provided such activities
do not
unreasonably impair Tenant's access to the Premises or otherwise
unreasonably or
materially impair Tenant's use of the Premises, and (b) improve,
remodel or
otherwise alter any of the Building, and it is agreed that
Landlord shall not
incur any liability whatsoever to Tenant as a consequence
thereof and such
activities shall not be deemed to be a breach of any of
Landlord's obligations
hereunder. Landlord agrees to exercise good faith in notifying
Tenant in writing
within a reasonable time in advance of any alterations,
modifications or other
actions of Landlord under this Section 5.3. Any diminution or
obstruction of
light, air or view by any structure which is now or may
hereafter be constructed
on lands adjacent to the Project shall in no way affect this
Lease or impose any
liability on Landlord. Noise, dust or vibration or other
incidents to any
construction work in or around the Building shall in no way
affect this Lease or
impose any liability on Landlord.
5.4 ACCESS CARDS. Landlord shall furnish Tenant with one
hundred
twenty-five (125) security access cards for the Building. Tenant
shall be
permitted to install and utilize, at its sole cost, within the
Premises door
control access devices complimentary to the access system
utilized in the
Building and to install locks on doors entering or within the
Premises provided
Tenant supplies Landlord and property management with copies of
keys to all such
locks. Access cards will be furnished by Landlord at Tenant's
sole cost and
expense. Upon termination of this Lease, Tenant shall surrender
to Landlord all
access cards and keys to any locks on doors entering or within
the Premises, and
give to Landlord the explanation of the combination of all locks
for safes, safe
cabinets and vault doors, if any, in the Premises. Tenant shall
not permit any
unauthorized use of the access cards. If Tenant loses any access
card, all costs
and expenses incurred by Landlord to adjust the access system
due to such loss
or to replace the card shall be paid by Tenant. Upon the
termination of any
employee's employment with Tenant, Tenant shall immediately
notify Landlord and
the Building's property manager if such employee did not return
his access card
prior to his or her departure. If the employee did not, then
Landlord shall,
upon notice from Tenant, immediately adjust the access system,
at Tenant's sole
cost and expense. Notwithstanding the above, at the time any
access card is
lost, or at any time an employee is terminated, Tenant may elect
not to adjust
the access system, provided Tenant in either case waives and
releases Landlord,
its agents, employees and property
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<PAGE>
manager from all claims and expenses of any kind or nature known
or unknown
arising directly or indirectly in whole or in part from such
loss of the access
card and agrees to indemnify and hold all such parties harmless
from all such
claims and expenses including reasonable attorneys' fees and
costs.
5.5 GRAPHICS, BUILDING DIRECTORY AND NAME.
No signs, numerals, letters or other graphics shall be used or
permitted
on the exterior of the Premises, or which may be visible from
outside the
Premises, unless approved in advance and in writing by Landlord.
Tenant shall be
permitted at Tenant's own cost and expense, to install
appropriate signage on
walls adjacent to or on the entrance doors to the Premises,
subject to
Landlord's reasonable approval. Maintenance, repair, restoration
and removal of
any such interior signage shall also be at Tenant's sole cost
and expense. All
signage will be designed using the Building's standard graphics
and shall be
subject to all applicable codes and regulations and any
development regulations
established for the Building. So long as Tenant occupies at
least one entire
floor of the Building and Tenant is the largest tenant in the
Building, Tenant
will be permitted exclusive signage on a monument sign adjacent
to Route 1. In
addition, Tenant will be permitted signage on a monument at the
entrance to the
Project from College Road West and on a monument in front of the
Building. The
design, construction, installation, maintenance and any removal
of any such
monument signage shall be at the sole cost and expense of
Tenant. The initial
cost can be paid out of Tenant's Allowance. All monument signage
will be subject
to Princeton Forrestal Center's design and development criteria
and the
Restrictive Covenant Declaration for Village South and receipt
of all required
approvals from Princeton and Plainsboro Township.
Landlord, at its sole cost and expense, shall include a listing
of
Tenant's name on the Building's directory. Tenant shall be
permitted its
proportionate share of total lineage on the Building directory
board or
directory monitor.
6.
6.1 CONDEMNATION.
(a) In the event of a taking or damage related to the exercise
of
the power of eminent domain, by any agency, authority, public
utility, person,
corporation or entity empowered to condemn property (including
without
limitation a voluntary conveyance by Landlord in lieu of such
taking or
condemnation) (a "Taking") of (i) the entire Premises, (ii) so
much of the
Premises (but not less than 75%) as to prevent or substantially
impair its use
by Tenant during the term of this Lease, or (iii) portions of
the Building or
Project (but not less than 75%) required for reasonable access
to, or
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<PAGE>
reasonable use of, the Premises (a "Total Taking"), the rights
of Tenant under
this Lease and the leasehold estate of Tenant in and to the
Premises shall cease
and terminate as of the date upon which title to the property
taken passes to
and vests in the condemner or the effective date of any order
for possession if
issued prior to the date title vests in the condemner ("Date of
Taking").
(b) In the event of a Taking of only a part of the Premises or
of a
part of the Project which does not constitute a Total Taking
during the term of
this Lease (a "Partial Taking"), the rights of Tenant under this
Lease and the
leasehold estate of Tenant in and to the portion of the property
taken shall
cease and terminate as of the Date of Taking, and an adjustment
to the Rent
shall be made based upon the reduced area of the Premises.
(c) In the event of a Taking of a material portion of the
Building
(other than the Premises) such that, in Landlord's reasonable
opinion, the
Building cannot be restored in a manner that makes its continued
operation
practically or economically feasible, Landlord may terminate
this Lease by
giving notice to Tenant within ninety (90) days after the date
notice of such
Taking is received by Landlord, provided Landlord terminates all
other tenants
in the Building.
(d) If this Lease is terminated pursuant to this Section
6.1,
Landlord shall refund to Tenant any prepaid unaccrued Rent and
any other sums
due and owing to Tenant (less any then due and owing Landlord by
Tenant), and
Tenant shall pay to Landlord any remaining sums due and owing
Landlord under
this Lease, each prorated as of the Date of Taking where
applicable.
(e) If this Lease is not terminated as provided for in this
Section
6.1, Landlord at its expense shall promptly repair and restore
the Building,
Project and/or the Premises to approximately the same condition
that existed
immediately prior to the Date of Taking, wear and tear only
excepted (and
Landlord shall have no obligation to repair or restore Tenant's
improvements to
the Premises or Tenant's property), except for the part taken,
so as to render
the Building or Project as complete an architectural unit as
practical, but only
to the extent of the condemnation award received by Landlord for
the damage.
(f) Landlord reserves all rights to damages and awards paid
because
of any Partial or Total Taking of the Premises or the Project.
Tenant assigns to
Landlord any right Tenant may have to the damages or award.
Further, Tenant
shall not make claims against Landlord or the condemning
authority for damages.
Notwithstanding the above, Tenant may pursue a separate claim
against the
condemning authority for the value of Tenant's moving expenses,
business
interruption and dislocation damages, Tenant's property and
trade
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<PAGE>
fixtures and any other award that would not reduce the award
payable to
Landlord.
6.2. DAMAGES FROM CERTAIN CAUSES. Unless any action of
Landlord
constitutes recklessness, gross negligence or willful
misconduct, Landlord shall
not be liable or responsible to Tenant for (i) any loss or
damage to any
property or person occasioned by theft, fire, act of God, public
enemy,
injunction, riot, strike, insurrection, war, court order,
requisition or order
of governmental body or authority, or any cause beyond
Landlord's control, or
(ii) any damage or inconvenience which may arise through repair
or alteration of
any part of the Building made necessary by virtue of any such
cause. The terms
and provisions of this Section 6.2 shall survive the expiration
or termination
of this Lease.
6.3. CASUALTY.
(a) If at any time during the term of this Lease, including
any
extension or renewal thereof, the Building is damaged by fire or
other casualty,
then, unless this Lease is terminated by Landlord or Tenant as
hereinafter
provided, Landlord shall be obligated to promptly commence, and
thereafter
prosecute with due diligence, the reconstruction, restoration
and repair of the
Building and the Premises to a condition substantially
equivalent to that
existing immediately prior to the casualty. If the damage
renders the Premises
inaccessible or untenantable in whole or in part, the Rent
provided for herein
shall abate thereafter as to the portion of the Premises so
effected until such
time as same is accessible and restored to a tenantable
condition.
(b) If (i) the Building is damaged to an extent that Landlord's
good
faith estimate of the cost of reconstruction, restoration and
repair thereof
exceeds sixty percent (60%) of the replacement cost of the
Premises, (ii) the
reconstruction, restoration and repair of the Premises or the
Building cannot
with reasonable diligence be completed within one hundred eighty
(180) days
after the casualty, or (iii) the casualty occurs during the last
twelve (12)
calendar months of the term of this Lease, then in any such
event Landlord shall
have the right, exercisable by written notice given to Tenant at
any time within
thirty (30) days after the occurrence of the casualty, to elect
not to
reconstruct, restore or repair the Premises, and in such event
this Lease shall
be terminated in all respects effective as of the date of the
casualty, all Rent
shall be prorated to the date of the casualty, and the parties
hereto shall be
released from any obligations thereafter accruing under this
Lease (except as
otherwise provided herein). If Landlord does not complete such
repair within two
hundred and seventy (270) days of the date of casualty (which
date shall be
extended by any delay in reconstruction caused or contributed to
by Tenant),
then Tenant may
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terminate this Lease upon ten (10) days prior notice to Landlord
received prior
to the date of completion.
(c) Notwithstanding anything contained in this Section 6.3, in
no
event shall Landlord be required to expend more to reconstruct,
restore and
repair the Building than the amount actually received by
Landlord from the
proceeds of the property insurance required to be carried by
Landlord under
Section 7.1 hereof, plus the amount of any deductible. Landlord
shall notify
Tenant within 120 days of a casualty whether it has received or
expects to
receive insurance proceeds sufficient to reconstruct, restore
and repair the
Building. Provided, however, the preceding sentence does not
give Tenant a
separate right to terminate the Lease if on the 120th day
Landlord has received
or still expects to receive sufficient insurance but has simply
failed to notify
Tenant, or if Tenant believes such insurance is insufficient to
reconstruct,
restore and repair the Building.
(d) In addition to Tenant's right to terminate set forth in
subsection 6.3(b) above, Landlord agrees to notify Tenant within
thirty (30)
days of the date of the casualty of Landlord's good faith
estimate as to whether
the repair of the Premises can be completed in 180 days or less.
If it cannot be
completed in 180 days or less, then (provided Landlord has not
elected to
terminate the Lease) Tenant may upon written notice to Landlord
(received by
Landlord within thirty (30) days of receipt of such good faith
estimate from
Landlord) elect to terminate this Lease, which election shall be
effective as of
the date of receipt of such notice by Landlord. In no event
shall Tenant have
the right to holdover for more than thirty (30) days without the
express written
consent of Landlord. If Tenant does not elect to terminate in
accordance with
the above, time being of the essence, the provisions of
subsection 6.3(b) shall
apply; however, the periods in which Landlord is obligated to
complete repairs
shall commence on the earlier of Landlord's receipt of written
notice to proceed
with repair from Tenant or expiration of the Tenant's thirty
(30) day period for
election to terminate.
7.
7.1. PROPERTY INSURANCE. Landlord shall maintain "all risk"
property
insurance on the Building including all Tenant's Work, Premises
Alterations and
all Building Standard Improvements equal to full replacement
value. Landlord may
also maintain such other additional insurance as is customary
for a landlord to
maintain or as may be required by Landlord's lender, including,
but not limited
to environmental/pollution insurance, rental abatement insurance
and personal
property insurance. There currently is in place an umbrella
pollution insurance
policy covering the Project for a three-year period at a total
premium of
$20,562.00. Such policy covers the Project and the building and
land adjacent to
the Project, consisting
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of a total of approximately 24 acres. Said insurance shall be
maintained with an
insurance company authorized to do business in New Jersey, in
amounts desired by
Landlord and at the expense of Landlord (but with the same to be
included in
Operating Expenses) and payments for losses thereunder shall be
made solely to
Landlord. If the annual premiums to be paid by Landlord shall
exceed the
standard rates because of Tenant's operations within or contents
of the Premises
or because the improvements to the Premises are beyond the
Building Allowance
set forth in EXHIBIT D, Tenant shall promptly pay the excess
amount of the
premium upon request by Landlord (and if necessary, Landlord may
allocate the
insurance costs of the Building to give effect to this
sentence). Tenant shall
maintain at its expense "all risk" property insurance with
vandalism, malicious
mischief and sprinkler leakage endorsements on all of its
personal property,
including removable trade fixtures, and any Satellite Dish,
defined in EXHIBIT
L, located in or on the Premises and not required to be insured
by Landlord
above, such coverage to be for an amount not less than the full
replacement cost
of such insured items. All such insurance required to be
maintained by Tenant
and shall provide that it shall not be cancellable, nor shall
the coverage
thereunder be reduced, without at least thirty (30) days advance
written notice
to Landlord. Tenant shall deliver copies of such policies to
Landlord, or
certificates of insurance in a form satisfactory to Landlord,
within ten (10)
days after any request therefor.
7.2. LIABILITY INSURANCE. Tenant shall at its expense, maintain
a policy
or policies of commercial general liability insurance with the
premiums thereon
fully paid on or before the due dates, issued by and binding
upon a solvent
insurance company, such insurance to afford minimum protection
(which may be
effected by primary and/or excess coverage) of not less than
$2,000,000 combined
single limit for personal injury or death in any one occurrence.
All such
insurance required to be maintained by Tenant shall name
Landlord and any
Interest Holder as an additional insured thereunder and shall
provide that it
shall not be cancellable, nor shall the coverage thereunder be
reduced, without
at least thirty (30) days advance written notice to Landlord. In
addition, such
insurance policies to be maintained by Tenant shall have
deductible amounts or
self-insured retention not greater than $100,000. Tenant shall
deliver copies of
such policies to Landlord or certificates of insurance in a form
satisfactory to
Landlord (as directed by Landlord) within ten (10) days after
any request
therefor.
7.3. HOLD HARMLESS; MUTUAL INDEMNITY.
(a) Tenant releases Landlord from all liability for any
bodily
injury or property damage occurring in the Premises, and agrees
to protect,
defend, indemnify and hold Landlord harmless from and against
all liabilities,
claims, suits, actions and costs (including reasonable
attorneys' fees and costs
of suit) arising out
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of or in connection with any such bodily injury or property
damage, except to
the extent that such injury or damage is attributable to any
breach of this
Lease by Landlord or the negligence or willful misconduct of
Landlord, its
agents, servants, employees or contractors, or except to the
extent Landlord may
be liable under Section 6.2 of the Lease. Landlord hereby agrees
to protect,
defend, indemnify and hold Tenant harmless from and against all
liabilities,
claims, suits, actions and costs (including reasonable
attorneys' fees and costs
of suit) arising out of or in connection with any bodily injury
or property
damage occurring in the Premises, to the extent that such injury
or damage is
attributable to any breach of this Lease by Landlord or the
negligence or
willful misconduct of Landlord, its agents, servants, employees
or contractors,
or except to the extent Landlord may be liable under Section 6.2
of the Lease.
(b) Landlord releases Tenant from all liability for any
bodily
injury or property damage occurring in any area of the Building
other than the
Premises and Landlord agrees to indemnify and hold Tenant
harmless from and
against all claims for such bodily injury or property damage,
except to the
extent that such injury or damage is attributable to any breach
of this Lease by
Tenant or the negligence or willful misconduct of Tenant, its
agents, servants,
employees, contractors, customers or invitees. Tenant hereby
agrees to protect,
defend, indemnify and hold Landlord harmless from and against
all liabilities,
claims, suits, actions and costs (including reasonable
attorneys' fees and costs
of suit) arising out of or in connection with any bodily injury
or property
damage occurring in any area of the Building other than the
Premises, to the
extent that such injury or damage is attributable to any breach
of this Lease by
Tenant or the negligence or willful misconduct of the Tenant,
its agents,
servants, employees, contractors, customers or invitees.
7.4. WAIVER OF CLAIMS AND RECOVERY RIGHTS. Anything in this
Lease to the
contrary notwithstanding, Landlord and Tenant each, on behalf of
themselves and
their respective heirs, successors, legal representatives,
assigns and insurers,
hereby (a) waives any and all rights of recovery, claims,
actions or causes of
action against the other and its respective officers, directors,
partners,
shareholders, agents, servants, employees, guests, licensees or
invitees for any
loss or damage that may occur to the Premises or other portion
of the Project,
or any improvements thereto, or any personal property of such
party therein, by
reason of fire, the elements, or any other cause which is
required to be insured
against under the terms of the insurance policies referred to in
Section 7.1
hereof, regardless of cause or origin, including negligence of
the other party
hereto or its respective officers, directors, partners,
shareholders, agents,
servants, employees, guests, licensees or invitees, and (b)
covenants that no
insurer shall hold any right of subrogation against such other
party; provided,
however, the waiver set forth in this Section 7.4 shall not
apply to any
deductibles on insurance policies carried
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by Landlord or Tenant or to any coinsurance penalty which
Landlord or Tenant
might sustain. If the respective insurer of Landlord and Tenant
does not permit
such a waiver without an appropriate endorsement to such party's
insurance
policy, then Landlord and Tenant each shall notify its insurer
of the waiver set
forth herein and to secure from such insurer an appropriate
endorsement to its
respective insurance policy with respect to such waiver.
8.
8.1 DEFAULT BY TENANT. The occurrence of any one or more of the
following
events shall constitute an "Event of Default" under this
Lease:
(a) Tenant shall fail to pay any sum of Rent when due, and
such
failure shall continue for ten (10) days after such due date
provided; however,
that Landlord agrees that Landlord shall, prior to exercising
any remedies for
nonpayment set forth in Section 8.2 hereunder, provide Tenant
with written
notice of nonpayment on the first occasion of nonpayment during
any consecutive
twelve month period and Tenant shall not be in default if it
cures such
nonpayment within ten (10) days of receipt of such notice. Once
given by
Landlord on the one occasion, Landlord shall have no further
obligation to give
written notice with respect to such default or any subsequent
monetary default
during such twelve month period;
(b) Tenant shall fail to execute and acknowledge or
otherwise
respond in good faith and in writing within ten (10) days after
submission to
Tenant of a request for confirmation of the subordination of
this Lease pursuant
to Section 11.1(a), confirmation of the subordination of a
mortgage or deed of
trust lien to this Lease pursuant to Section 11.1(b) or an
estoppel certificate
pursuant to Section 11.2;
(c) Tenant shall fail in the performance of any of the other
covenants or conditions not included in subparagraphs (a) and
(b) of this
Section 8.1 which Tenant is required to observe and to perform
under this Lease
and such failure shall continue for thirty (30) days after
written notice to
Tenant; unless such failure materially and adversely affects the
Building or the
operation thereof or other tenants or violates law and in such
event Tenant
fails to cure same within ten (10) days of receipt of written
notice; however,
if the failure requires performance of any obligation that
cannot be fully
performed within such thirty (30) day period then Tenant shall
not be in default
hereof if it commences to cure such failure within such thirty
(30) day period
and diligently prosecutes completion of such cure;
(d) the interest of Tenant under this Lease shall be levied on
under
execution or other legal process; any petition shall
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be filed by or against Tenant to declare Tenant a bankrupt or to
delay, reduce
or modify Tenant's debts or obligations, or to reorganize or
modify Tenant's
capital structure; provided, however, in the event such petition
or proceeding
is involuntary, Tenant shall have sixty (60) days after its
commencement to have
such petition or proceeding dismissed; Tenant is declared
insolvent according to
law; any assignment of Tenant's property shall be made for the
benefit of
creditors; or a receiver or trustee is appointed for Tenant or
its property and
such levy, execution, legal process, petition, declaration,
assignment or
appointment is not removed or vacated within thirty (30) days
from the date of
its creation, service or filing;
(e) Tenant shall fail to occupy the Premises within thirty (30)
days
following the Commencement Date, or shall vacate or abandon the
Premises for a
period of thirty (30) or more continuous days at any time during
the term of
this Lease or any renewals or extensions thereof, and shall fail
to perform its
other obligations under this Lease; or
(f) Tenant, if a corporation, shall cease to exist as a
corporation
in good standing in the state of its incorporation, or Tenant,
if a partnership
or other entity, shall be dissolved or otherwise liquidated
except as otherwise
permitted in Section 9.1(f) of this Lease.
8.2 REMEDIES. Upon the occurrence of any Event of Default, at
Landlord's
option, Landlord may (without further notice or grace) exercise
any one or more
of the following remedies, in addition to all other rights and
remedies provided
at law or in equity:
(a) Terminate this Lease and immediately repossess the Premises
by
forcible entry and detainer suit or otherwise, in accordance
with applicable
law, and be entitled to recover forthwith as damages a sum of
money equal to the
total of (i) the cost of recovering the Premises (including
reasonable legal
fees and costs of suit), (ii) the unpaid Rent earned at the time
of termination,
plus interest thereon at the Default Rate which shall be equal
to the Prime Rate
as defined in Section 2.3(e), (iii) the balance of the Stated
Rentals for the
remainder of the term of this Lease, less the fair market rental
value of the
Premises for said period, taking into account the period of time
during which
the Premises is likely to remain vacant until a new tenant
commences payment of
rental and the reasonably anticipated out-of-pocket expenses to
be incurred by
Landlord to relet the Premises (such as the cost of preparation
of the Premises,
leasing commissions and reasonable legal fees associated with
occupancy by a new
tenant), and (iv) any other sum of money and damages owed by
Tenant to Landlord
under the terms of this Lease. The provisions of this paragraph
shall survive
the expiration or termination of this Lease. For the purpose of
calculating
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Landlord's damages under clause (iii) of this paragraph, Tenant
covenants and
agrees that:
(i) it shall be assumed that the Additional Rental for the
calendar year in which this Lease is terminated would be equal
to the Additional
Rental for the last full calendar year prior to termination,
increased at a rate
equal to the average rate of increase (if any) of Operating
Expenses for the
three (3) full calendar years preceding the calendar year of
termination (the
"Escalation Rate"), and that the Additional Rental for each year
thereafter for
the remainder of the term would be equal to the Additional
Rental for the
preceding calendar year (calculated in the same manner as for
the year of
termination), increased at the Escalation Rate; and
(ii) Landlord may rely upon the average of the
determinations
of the fair market rental value of the Premises for the
remainder of the term of
this Lease made independently and in writing by three (3)
reputable real estate
brokers active in the leasing of office space comparable to the
Premises in the
Princeton, New Jersey area office market selected by Landlord.
Provided,
however, Landlord shall not select a broker that is currently
engaged by
Landlord in the Princeton market, Tenant shall have no right to
dispute the
value so calculated.
(b) Terminate Tenant's right of possession (but not this
Lease)
and immediately repossess the Premises by forcible entry and
detainer suit or
otherwise, in accordance with applicable law, without thereby
releasing Tenant
from any liability hereunder and without terminating this Lease,
and shall be
entitled to recover forthwith as damages a sum of money equal to
the total of
(i) the cost of recovering the Premises (including reasonable
legal fees and
costs of suit), (ii) the unpaid Rent earned at the time of
termination, plus
interest thereon at the Default Rate, and (iii) any other sum of
money and
damages then owed by Tenant to Landlord under the terms of this
Lease. In
addition, Tenant shall remain liable for the payment of all
Stated Rentals as
same become due under the terms of this Lease. After regaining
possession of the
Premises under this Section 8.3(b), Landlord shall use
commercially reasonable
efforts to relet the Premises on such terms and conditions as
Landlord in its
sole, good faith judgment deems acceptable, and if the Premises
are so relet,
Tenant shall receive credit against the sums otherwise payable
to Landlord
hereunder only for the amount of the Net Reletting Income (as
hereinafter
defined). For the purpose of such reletting Landlord shall be
authorized but not
obligated to decorate or to make any repairs, changes,
alterations or additions
in or to Premises as may be reasonably necessary or desirable.
Landlord reserves
the right, however (x) to lease any other space available in the
Building prior
to offering the Premises for lease, (y) to refuse to lease the
Premises to any
potential tenant that does not meet
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Landlord's standards and criteria for leasing other comparable
space in the
Building (including, without limitation, rental rates), and (z)
to reconfigure
the Premises and lease only portions thereof or lease all or
part of the
Premises in combination with other space. Any payments due
Landlord under this
Section 8.3(b) shall be made upon demand therefor from time to
time, and Tenant
agrees that Landlord may file suit to recover any sums falling
due under the
terms of this Section 8.3(b) from time to time. No delivery to
or recovery by
Landlord of any portion due Landlord hereunder shall be any
defense in any
action to recover any amount not theretofore reduced to judgment
in favor of
Landlord, nor shall any reletting be construed as an election on
the part of
Landlord to terminate this Lease unless a written notice of such
intention be
given to Tenant by Landlord. Notwithstanding any such reletting
without
termination, Landlord may at any time thereafter elect to
terminate this Lease
for such previous breach. As used above, the term "Net Reletting
Income" means
the amount of all rentals actually received by Landlord in
respect of a
reletting of the Premises during the term of this Lease, less
all the actual
costs and expenses incurred by Landlord in connection with such
reletting,
including, without limitation, leasing commissions, demolition
of existing
improvements and installation of new improvements and/or the
allowances provided
therefor, and legal fees.
(c) Enter upon the Premises by use of a master key, a duplicate
key
or other peaceable means, and alter the door locks on all entry
doors of the
Premises, thereby excluding Tenant and its officers, principals,
agents,
employees, contractors, representatives and invitees. If
Landlord elects to so
exclude Tenant from the Premises without terminating this Lease
or Tenant's
right to possession of the Premises pursuant to the provisions
of this Lease,
then Landlord shall be obligated to provide Tenant a key to
re-enter the
Premises only upon payment in full of all delinquent Rent and
other amounts due
under this Lease and the curing of all other defaults, if any.
If this Lease or
Tenant's right of possession of the Premises is terminated,
Landlord shall have
no obligation to provide Tenant a key to re-enter the Premises,
but Landlord
will, during Landlord's regular business hours, at Landlord's
convenience and
upon written request by Tenant, escort Tenant or its authorized
personnel to the
Premises to retrieve personal belongings of Tenant's employees
and any property
of Tenant.
(d) If Landlord terminates this Lease or Tenant's right to
possession (without terminating the Lease), Landlord shall use
commercially
reasonable efforts to mitigate Landlord's damages by re-letting
the Premises
following Tenant's vacancy thereof, but in doing so, Tenant
agrees that Landlord
shall not be required to (i) give preference to re-letting the
Premises prior to
leasing other space that Landlord has available, i.e., any
prospective tenant's
space requirements will dictate Landlord's leasing activities,
(ii) expend
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any sums to so re-let or (iii) re-let at rental rates less than
rental rates
then being offered to new tenants of the Building. Landlord
shall not be liable
for nor shall Tenant's obligation hereunder be diminished
because of Landlord's
failure to relet the Premises or collect any rentals due in
respect of such
reletting.
8.3 LANDLORD'S RIGHT TO CURE DEFAULTS. All agreements and
provisions to be
performed by Tenant under any of the terms of this Lease shall
be at Tenant's
sole cost and expense and without any abatement of Rent. If
Tenant shall fail to
pay any sum of money, other than Stated Rentals, required to be
paid by it
hereunder or shall fail to cure any default and such failure
shall continue for
ten (10) days, or such longer period elsewhere provided, after
notice thereof by
Landlord, then Landlord may, but shall in no event be obligated
to, make any
such payment or perform any such act on Tenant's account, and
such cure by
Landlord shall not be deemed a waiver by Landlord of any of its
other remedies
or a release of Tenant from any obligations hereunder. All sums
so paid by
Landlord and all costs incurred by Landlord in taking such
action shall be
deemed additional rent hereunder and shall be paid to Landlord
on demand, and
Landlord shall have (in addition to all other rights and
remedies of Landlord)
the same rights and remedies in the event of the non-payment
thereof by Tenant
as in the case of default by Tenant in the payment of Rent
hereunder.
8.4 NON-WAIVER. Failure of Landlord to declare any default
immediately
upon occurrence thereof, or delay in taking any action in
connection therewith,
shall not waive such default, but Landlord shall have the right
to declare any
such default at any time and take such action as might be lawful
or authorized
hereunder, either in law or in equity.
8.5 HOLDING OVER. If Tenant continues in occupancy of the
Premises after
expiration or termination of this Lease without the written
consent of Landlord,
Tenant shall pay as Rent for the holdover period (pro rated on a
daily basis) an
amount equal to one hundred fifty (150%) percent of the Stated
Rentals payable
immediately prior to the expiration or termination. No holding
over by Tenant
after the term of this Lease without the written consent of
Landlord shall be
construed to extend the term hereof. Any holding over with the
written consent
of Landlord shall constitute this a tenancy at sufferance
relationship between
Landlord and Tenant, unless specifically stated otherwise in
such consent. The
provisions of this paragraph shall survive the expiration or
termination of this
Lease.
8.6 LANDLORD'S DEFAULT. Landlord shall not be deemed in default
hereunder
unless Tenant shall have given Landlord written notice of such
default
specifying such default with particularity and Landlord shall
thereupon have
thirty (30) days in which to cure any
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default unless such default cannot reasonably be cured within
such period
wherein Landlord shall not be in default if it commences to cure
the default
within the thirty (30) day period and diligently pursues
completion of same. If
Landlord disputes the existence of such default, Landlord's
commencement to cure
any alleged default shall not be an admission by Landlord that
it is in default,
nor shall anything herein abrogate or diminish Tenant's
obligation to mitigate
its damages. In the event of any default by Landlord, Tenant
agrees that its
exclusive remedy shall be an action for damages, except that
Tenant shall have
the right to bring an action for specific performance if Tenant
is not in
default.
9.
9.1 ASSIGNMENT OR SUBLEASE BY TENANT.
(a) Tenant shall not assign this Lease, sublet all or any part
of
the Premises or allow the Premises to be used or occupied by
others (any such
event being referred to herein as a "Transfer"), or mortgage or
otherwise
encumber its leasehold estate under this Lease or its property
within the
Premises, without Landlord's prior written consent, which
consent shall not to
be unreasonably withheld, conditioned or delayed.
(b) Tenant shall give Landlord at least thirty (30) days
advance
written notice of any proposed Transfer, stating the anticipated
terms thereof.
Landlord shall then have a period of fifteen (15) days following
receipt of such
notice within which to notify Tenant in writing that Landlord
elects to either
(i) terminate this Lease as to the space so affected, in which
event Tenant
shall be relieved of all obligations hereunder as to such space
arising from and
after such date, or (ii) consent to the proposed Transfer,
subject to Landlord's
subsequent written approval of the proposed transferee.
Notwithstanding the
foregoing, Landlord will not have a right of re-capture if
Tenant continues to
occupy more than fifty (50%) percent of the Premises.
(c) Tenant agrees that it will be reasonable for Landlord to
withhold its consent to a proposed Transfer if any one of the
following is true,
(i) Tenant is then in default under the Lease beyond any
applicable notice and
cure period, (ii) the nature and character of the proposed
transferee, its
business activities or its intended use of the Premises are not
consistent with
the standards of the Building in Landlord's sole judgment, (iii)
the proposed
transferee (including any "Affiliate" as defined in Paragraph
(f), below) has a
net worth less than that of Tenant on the anticipated date of
such proposed
Transfer, (iv) the proposed occupancy would impose an extra
burden upon the
Building systems or Landlord's ability to provide services to
the other tenants
of the Buildings, (v) the granting of such consent would
constitute a default
under any
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other agreement to which Landlord is a party or by which
Landlord is bound,
including, without limitation, any exclusives previously granted
to other
tenants of the Project as of the date of this Lease and any
restrictions on
leasing contained in any other leases of space in the Building,
which Tenant has
written notice of prior to any approved assignment or sublease,
or (vi) the
proposed transferee is then a tenant in the Building (unless
Landlord has no
available space for such tenant's expansion) or has executed a
document to
become a tenant in a Building.
(d) If Landlord consents to a Transfer, Tenant agrees that
one-half
of all Rent amounts payable to Tenant in respect of the Transfer
(net of the
costs incurred by Tenant with respect to such Transfer) in
excess of the Stated
Rentals for the Premises or the portion thereof subject to the
Transfer shall be
paid to Landlord as additional rental hereunder immediately upon
Tenant's
receipt thereof. Tenant acknowledges and agrees that,
notwithstanding Landlord's
consent to any Transfer, Tenant shall remain directly and
primarily liable for
the performance of all the obligations of Tenant hereunder
except as set forth
in Section 9.1(b)(i) (including, without limitation, the
obligation to pay all
Stated Rentals). The consent by Landlord to any Transfer shall
not be deemed in
any manner to be a consent to a use not permitted under Section
1.5(a). Any
consent by Landlord to a particular Transfer shall not
constitute Landlord's
consent to any other or subsequent Transfer.
(e) For purposes of this Section 9.1, if Tenant is a
corporation,
partnership or limited liability company, the shares or
interests of which at
the time of execution of this Lease or during the term hereof
are or shall be
held by fewer than one hundred (100) persons, and if at any time
during the term
of this Lease a majority or controlling amount of shares or
interests shall be
transferred other than by bequest, inheritance, inter vivos gift
or transfer in
trust, or to an Affiliated Entity as provided in Paragraph (f)
below, without
the prior written consent of Landlord, then such transfer of
shares or interests
shall be deemed to be an assignment of this Lease.
(f) Notwithstanding Sections 9.1(b) and (e) above, and provided
no
Event of Default has occurred and has not been cured within any
applicable cure
period under this Lease, Tenant may effect a Transfer to any
Affiliated Entity
without Landlord's prior consent provided Tenant delivers to
Landlord a copy of
the executed Transfer documents on a Landlord approved form
within thirty (30)
days after such Transfer. Tenant or successor Affiliated Entity,
as applicable,
shall not be released of any of its liabilities and obligations
under this Lease
including any such liabilities or obligations related to the
Transfer. For
purposes hereof, "Affiliated Entity" shall mean an entity which
has a net worth
equal to or greater than Tenant on the date of the Transfer and
which (i)
controls, is controlled by, or is
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in common control with Tenant; or (ii) results from the merger
or consolidation
with Tenant; or (iii) acquires all or substantially all of the
assets of,
interest in or stock of Tenant; or (iv) is a successor to Tenant
by name change
or a change of the state of incorporation.
(g) Notwithstanding Sections 9.1(b) and (e) above, and provided
no
Event of Default has occurred and has not been cured within any
applicable cure
period under this Lease, Tenant may effect a Transfer in the
following instances
without Landlord's prior consent provided Tenant delivers to
Landlord a copy of
the executed Transfer documents on a Landlord approved form
within thirty (30)
days after such Transfer: (i) in the event Tenant becomes a
public company; or
(ii) in the event Tenant is involved in a merger, exchange or
other transaction
in which Tenant is not the surviving entity and the transferee
has a net worth
of at least $100 million on the date of the Transfer.
(h) Tenant agrees to pay Landlord's reasonable attorneys' fees
and
costs if any subletting or assignment is not on Landlord's
approved form.
9.2 ASSIGNMENT BY LANDLORD. Landlord shall have the right to
transfer
and assign its rights and obligations hereunder to any person or
entity
acquiring ownership of the Project, and in such event and upon
such transfer
(any such person or entity to have the benefit of, and be
subject to, the
provisions of Section 10.1 and 10.2 hereof) no further liability
or obligation
shall thereafter accrue against Landlord hereunder, provided
such transferee or
assignee assumes full responsibility for Tenant's security
deposit described in
Section 2.4 hereof.
10.
10.1 PEACEFUL ENJOYMENT. Landlord covenants that Tenant shall
and may
peacefully have, hold and enjoy the Premises from those parties
claiming
possession or rights to the Premises by or through Landlord,
subject to the
other terms hereof, provided that Tenant pays the Rent and other
sums herein
recited to be paid by Tenant and performs all of Tenant's
covenants and
agreements herein contained. It is understood and agreed that
this covenant and
any and all other covenants of Landlord contained in this Lease
shall be binding
upon Landlord and its successors only with respect to breaches
occurring during
its and their respective ownership of Landlord's interest
hereunder.
10.2 LIMITATION OF LANDLORD'S PERSONAL LIABILITY. Tenant agrees
to look
solely to Landlord's interest in the Project for the recovery of
any judgment
against Landlord, it being agreed that Landlord, its managers,
members,
partners, officers, directors and employees shall
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never be personally liable for any such judgment. The provision
contained in the
foregoing sentence is not intended to, and shall not, limit any
right that
Tenant might otherwise have to obtain injunctive relief against
Landlord or
Landlord's successors in interest or any suit or action in
connection with
enforcement or collection of amounts which may become owing or
payable under or
on account of insurance maintained by Landlord.
10.3 LIMITATION OF INTEREST HOLDER'S PERSONAL LIABILITY. If an
Interest
Holder shall succeed to the interest of Landlord, the Interest
Holder shall have
no personal liability as successor to Landlord, and Tenant shall
look only to
the estate and property of the Interest Holder in the Project or
the proceeds
thereof for the satisfaction of Tenant's remedies for the
collection of a
judgment (or other judicial procedure) requiring the payments of
money in the
event of any default by the Interest Holder as landlord under
the Lease. In
addition, the Interest Holder as holder of the Mortgage Document
or as landlord
under the Lease if it succeeds to that position, shall in no
event (a) be liable
to the Tenant for any act or omission of any prior landlord, (b)
be subject to
any offset or defense which Tenant might have against any prior
landlord, (c) be
liable to the Tenant for any liability or obligation of any
prior landlord
occurring prior to the date that the Interest Holder or any
subsequent owner
acquires title to the Project, or (d) be liable to the Tenant
for any security
or other dep
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