Exhibit 10.329
LEASE AGREEMENT
BY AND BETWEEN:
Eastpark at 8A
“Landlord”
- and -
Pharrnacopeia, Inc.
“Tenant”
PREMISES: 3000 Eastpark
Boulevard Cranbury, NJ 08512
DATED: August 20,
2003
TABLE
OF CONTENTS
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1.
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LEASED
PREMISES
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2.
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TERM OF
LEASE
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3.
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CONSTRUCTION
OF THE TENANT IMPROVEMENTS
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4.
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RENT
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5.
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PARKING AND
USE OF EXTERIOR AREA
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6.
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USE
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7.
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REPAIRS AND
MAINTENANCE
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8.
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COMMON AREA
EXPENSES. TAXES AND INSURANCE
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9.
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SIGNS
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10.
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ASSIGNMENT
AND SUBLETTING
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11.
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FIRE AND
CASUALTY
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12.
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COMPLIANCE
WITH LAWS, RULES AND REGULATIONS
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13.
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INSPECTION
BY LANDLORD
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14.
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DEFAULT BY
TENANT
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15.
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LIABILITY OF
TENANT FOR DEFICIENCY
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16.
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NOTICES
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17.
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NON-WAIVER
BY EITHER PARTY
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18.
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RIGHT OF
TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS
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19.
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NON-LIABILITY OF LANDLORD
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20.
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RESERVATION
OF EASEMENT
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21.
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STATEMENT OF
ACCEPTANCE
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22.
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FORCE
MAJEURE
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23.
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STATEMENTS
BY LANDLORD AND TENANT
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24.
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CONDEMNATION
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25.
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LANDLORD’S REMEDIES
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26.
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OUIET
ENJOYMENT
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27.
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SURRENDER OF
PREMISES
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28.
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INDEMNITY
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29.
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BIND AND
CONSTRUE CLAUSE
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30.
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INCLUSIONS
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31.
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DEFINITION
OF TERM “LANDLORD”
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32.
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COVENANTS OF
FURTHER ASSURANCES
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33.
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COVENANT
AGAINST LIENS
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34.
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SUBORDINATION
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35.
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EXCULPATION
OF LANDLORD
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36.
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NET
RENT
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37.
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SECURITY
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38.
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BROKERAGE
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39.
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LATE
CHARGES
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40.
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PRESS
RELEASES
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41.
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WAIVER OF
JURY TRIAL
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42.
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LAWS OF NEW
JERSEY
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43.
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OPTION TO
RENEW
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44.
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CROSS
DEFAULT
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AGREEMENT, made August 20,
2003, between Eastpark at 8A, 1000 Eastpark Blvd., Cranbury, New
Jersey 08512, “Landlord”; and Pharmacopeia, Inc., 3000
Eastpark Boulevard, Cranbury, NJ 08512,
“Tenant”.
WITNESSETH:
WHEREAS, the Landlord intends to
lease to the Tenant the entire property known as 3000 Eastpark
Boulevard, Cranbury, NJ 08512, (Block 7, Lot 7.03 on the South
Brunswick Township Tax Map) (the “Land”) which
constitutes a portion of the office/industrial park known as
Eastpark at 8A (“Office Park”) together with a building
of 58,852 rentable square feet located thereon
(“Building” or “Leased Premises”), (the
Land and Building shall be referred to together as the
“Property”); and
WHEREAS, the parties hereto wish to
mutually define their rights, duties and obligations in connection
with the Lease;
NOW THEREFORE, in consideration of
the promises set forth herein, the Landlord leases unto the Tenant
and the Tenant rents from the Landlord the Property, and the
Landlord and Tenant do hereby mutually covenant and agree as
follows:
The Leased Premises shall consist of
the entire Building of 58,852 rentable square feet of office and
laboratory space, plus an area in the basement of approximately
6,297 rentable square feet, as measured from outside of exterior
walls to center line of common walls, together with all
improvements to be constructed thereon by the Landlord for the use
of the Tenant, and all easements, tenements, appurtenances,
hereditaments, rights and privileges appurtenant thereto, and any
and all fixtures and equipment which are to be installed by the
Landlord for the use of the Tenant in its occupancy of the Leased
Premises. Tenant shall also have the right to use all common areas
of the Office Park in a similar manner as other Office Park
tenants.
The term of the Lease shall be 12
years and shall be co-terminus with a lease for Building #1, which
is also to be occupied by Tenant. The rent shall commence upon
Substantial Completion (as defined hereafter). The 12 year term
shall commence on the first day of the month following the date on
which Substantial Completion is achieved for both Buildings 1 and
3, and shall expire on the day before the 12th anniversary of the
Commencement Date, it being the intent of the parties that the
leases for both Buildings shall expire on the same date. The
Commencement Date is projected to be January 15,
2004.
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3.
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CONSTRUCTION
OF THE TENANT IMPROVEMENTS
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3.1 The Leased Premises
consists of the entire Building currently leased to Tenant. Tenant
is taking the Leased Premises in its “as is” condition
subject to modifications as shown on the Plans (as hereafter
defined) to be prepared by Tenant (“Tenant
Improvements”). The Landlord shall provide all necessary
labor and materials and perform all the work required to complete
the Tenant Improvements. Tenant’s designated representative
for all work pertaining to the Tenant Improvements shall be John
Harrison and or such other person as is designated in writing by
Tenant (“Representative”). The Landlord shall supervise
and direct the work on the Tenant Improvements using
Landlord’s best skill and attention, and Landlord shall be
solely responsible for all construction means, methods, techniques,
sequences and procedures and for coordinating all portions of the
work on the Tenant Improvements. Landlord warrants to the Tenant
that all materials and equipment incorporated in the Tenant
Improvements will be new unless otherwise specified, and that all
work on the Tenant Improvements will be of good quality, free from
known faults and defects, and in substantial conformity with the
Plans.
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3.2
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(a) Landlord shall complete the
Tenant Improvements in a good and workmanlike manner and in
substantial accordance with plans and specifications
(“Plans”) to be prepared by Tenant’s architect,
CUH2A. The Plans shall be provided to Landlord on or before
September 1, 2003 and shall be in sufficient detail to permit
Landlord to apply for a building permit
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for the Tenant Improvements (which
Landlord shall promptly do), and to prepare a construction budget
for the construction of the Tenant Improvements
(“Construction Budget”). In the event Tenant does not
deliver the Plans to Landlord by the date set forth above, such
failure shall not delay the date for the commencement of rent,
which shall be presumed to be the projected Commencement Date set
forth in paragraph 2. The Construction Budget shall set forth the
lump sum amount payable by Tenant to Landlord for the construction
of the Tenant Improvements, which amount shall include
Landlord’s standard mark-up for general conditions, overhead
and profit, which total in the aggregate 20%. The only exception to
the lump sum amount shall be the actual fees charged by the
Township of South Brunswick for construction permits in connection
with the Tenant Improvements, which sums shall be paid by Tenant as
set forth hereafter. Landlord shall submit the Construction Budget
to Tenant for its approval. Tenant shall give written notice to
Landlord within five business days of receipt, as to whether or not
the Construction Budget is acceptable. If Tenant does not accept
the Construction Budget during such five business day period, then
the parties agree to negotiate in good faith to reach an agreement
on the Construction Budget. Landlord shall not be obligated to
order any equipment or commence work until Tenant has approved the
Construction Budget. A complete set of the agreed upon Plans, and
the agreed upon Construction Budget, shall be initialed by and
distributed to Landlord and Tenant.
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(b) Neither the Construction Budget
nor the Plans shall be changed or altered in any way except by
change order approved in writing by Landlord and Tenant
(“Change Order”). All Change Orders shall be valid and
binding upon Landlord and Tenant only if authorized by written
Change Order signed by Landlord and Tenant’s Representative
prior to commencement of the work on the Tenant Improvements
reflected thereby. The cost or credit to the Tenant due to any
Change Order shall be determined per the terms of such Change
Order. In the event the Change Order increases the cost set forth
in the Construction Budget, then Landlord shall submit an invoice
to Tenant and Tenant shall pay the invoice upon completion of the
work or upon the ordering of any equipment, whichever is
applicable. The Landlord shall have the right to substitute for the
materials and equipment required by the Plans, materials and
equipment of equal quality and standard, provided said
substitutions conform with applicable building codes and are the
subject of a Change Order.
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3.3
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(a) The
Landlord may secure and advance payment for the construction
permits and for all other permits and governmental fees, licenses
and inspections necessary for the proper execution and completion
of the Tenant Improvements. Tenant shall pay such amounts to
Landlord not later than 10 business days after receipt of an
invoice therefore. Landlord shall not, however, be responsible for
securing any environmental or operating permits or certifications
which are required in order for Tenant to actually conduct its
business.
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(b) Tenant shall be responsible for
providing Landlord with, and bearing the cost of sufficient copies
of the Plans, and sufficient copies of any revisions made to the
Plans, in order to obtain the permits and efficiently manage the
construction of the Leased Premises. In the event any Change Orders
are required during construction, Tenant shall be responsible for
all costs related to the preparation and reproduction of plans
therefor, unless the Change Order was solely initiated by Landlord,
in which case Landlord shall be responsible for such costs. After
construction is complete, Tenant shall be responsible for all costs
related to the reproduction of “as built” Plans. In all
instances where Plans are required, Tenant shall provide Landlord
with a reproducible set. Landlord will also be provided with a
current plot file containing the Plans at no cost to Landlord.
Tenant agrees to have its Architect execute Exhibit “A”
affirming Landlord’s right to the Plans.
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3.4
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(a) Tenant
shall pay Landlord directly for the construction costs of Tenant
Improvements in accordance with the schedule attached hereto as
Exhibit “B”. In the event Tenant fails to pay to
Landlord any sum set forth on Exhibit “B” when it is
due, Landlord shall not be obligated to commence or continue work
on the Tenant Improvements. Such failure to pay shall constitute a
default under this Lease, but shall not delay the Commencement Date
of this Lease, which shall be
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presumed to be the projected
Commencement Date set forth in paragraph 2, or any of
Tenant’s obligations hereunder including, without limitation,
Tenant’s obligation to pay all Rent. In the event that Tenant
fails to pay to Landlord the final sum set forth on Exhibit
“B”, such failure shall constitute a default under this
Lease; and Tenant shall not be permitted to occupy the Leased
Premises; and Tenant shall commence payment of all Rent; and
Landlord shall be entitled to all rights and remedies available
hereunder, at law or in equity, which rights shall be cumulative.
All sums so owing to Landlord shall constitute Additional Rent and
shall be subject to the imposition of late charges as provided in
this Lease.
(b) Apart from extensions of
time for delays and extensions of the date for the payment of rent,
no payment or allowance of any kind shall be claimed by Tenant, or
made to the Landlord as compensation for damages on account of any
delay from any cause in the Initial: Landlord completion of the
Tenant Improvements, whether such delay be avoidable or
unavoidable, anything in this Agreement inconsistent herewith or to
the contrary notwithstanding.
3.5 Tenant shall be responsible for
the design and installation of its own phone, data and
communication systems which systems shall be installed in a manner
not to interfere with Landlord’s construction efforts. During
construction of Tenant Improvements, a representative of Tenant
shall inspect the site no less frequently than once a week and
verify and agree that the work in progress has been completed in a
manner acceptable to Tenant.
3.6 The Tenant Improvements shall be
commenced upon issuance of the building permit by governmental
entities having jurisdiction therefor and, subject to authorized
adjustments, completion of the Tenant Improvements is estimated to
be achieved on or about January 15, 2004. As used herein the
term “Substantial Completion” shall mean that the
Leased Premises have been built and completed in substantial
conformity with the Plans, and a temporary or permanent certificate
of occupancy or a temporary or permanent certificate of acceptance
(“CO/CA”) has been issued permitting Tenant to use and
occupy the Leased Premises, even though minor details, adjustments
or punch list items which shall not materially impair
Tenant’s use and enjoyment of the Leased Premises may not
have been finally completed, but which work Landlord agrees shall
be diligently pursued to final completion. Tenant shall allow
Landlord and its contractors to enter the Leased Premises during
normal working hours after issuance of the CO/CA to complete
remaining minor work or punch list items, provided Landlord gives
advance notice and makes reasonable efforts not to interfere with
Tenant’s operations. It is agreed that for the purpose of
this Lease, wherever and whenever the term Substantial Completion
is used, it shall not include items of maintenance, service, punch
list, or guarantee.
4.1 Tenant is currently occupying
the Building under an existing lease (“Old Lease”) and
shall continue to occupy the space during construction of the
Tenant Improvements and pay Landlord the Rent set forth in the Old
Lease until Substantial Completion. The Old Lease shall be deemed
terminated upon commencement of this Lease as set forth in
paragraph 2. Tenant shall pay base rent (“Base Rent”)
hereunder as follows:
(a) During the first 4 years of
the term, an estimated annual base rent per square foot of $20.58
for all above ground space and $4.00 for the basement space
(provided it is only used in its “as is” condition),
for an aggregate annual base rent of $l,236,362.16 (“Initial
Base Rent”), payable monthly in the sum of
$l03,030.l8.
(b) During the second 4 years
of the term, the Base Rent shall be increased by adding to the
Initial Base Rent the increase in the Consumer Price Index
(“CPI”) as follows, and such sum shall be the Base Rent
for the second 4 years of the term (the “Adjusted Base
Rent”):
The “All Items” Index
Figures for the New York-Northeastern New Jersey average of the
“Consumer Price Index for All Urban Consumers” (revised
CPI-U) (1982-1984 equal to 100) published by the Bureau of Labor
Statistics of the U.S. Department of Labor (“Index”)
for the month 2 months prior to the date of Substantial Completion
shall be compared with
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the same index for the month 2
months prior to the beginning month of the second 4 years of the
Lease term. If there is an increase in the Index that percentage
increase shall be used to determine the rent increase over the
original Base Rent, as shown in the following example:
If the Index figure for the month 2
months prior to the date of Substantial Completion is 100 (the
denominator) and the Index figure for the month 2 months prior to
the beginning of the second 4 years of the lease term is 110, the
increase in the Index figures will produce an increase of
10%.
Applying the formula, 10% of
$1,236,362.16 is equal to $123,636.22. Adding that amount to the
original Base Rent produces an annual rent for the second 4 years
of $1,359,998.38 payable in equal monthly installments of
$l13,333.20.
However, in no event shall the
increase in rent be more than 12%.
(1) In the event that the Index
figure is discontinued the parties shall agree on an equivalent and
substituted Cost of Living Index to be applied in the same manner.
In the event the parties cannot mutually agree as to a substituted
Index, then the issue shall be submitted for arbitration to the
American Arbitration Association to take place in South Brunswick
or any of its contiguous municipalities, with the cost thereof
divided between the parties.
(2) If the base year (1982-84
equal to 100) herein above referred to with respect to the
“Index” shall be changed after the execution of the
Lease, appropriate adjustments based on such new Index shall be
made so as to have a proper application of the Cost of Living
formula.
(c) During the third 4 years of
the term, the Base Rent shall increase according to the same CPI
formula set forth above using the Adjusted Base Rent, but not more
than 12 % over the Adjusted Base Rent for the second 4
years.
4.2 In addition to the Base
Rent, Tenant shall pay as additional rent (“Additional
Rent”) all real estate taxes for the Property, plus its
proportionate share of the repairs, maintenance, insurance and any
other charges allocated amongst tenants, as more specifically
described in paragraph 8 (“Common Area Expenses”),
based on the relationship between the rentable square footage
leased to Tenant and the rentable square footage of building
construction completed and occupied in the Office Park.
Tenant’s Common Area Expenses shall be adjusted as of each
January 1st during the term based on the increase in Common
Area Expenses set forth in paragraph 8.
4.3 The Base Rent and Additional
Rent shall be referred to hereafter as
“Rent”.
4.4 Tenant covenants to pay the
Rent in lawful money of the United States which shall be legal
tender for the payment of all debts, public and private, at the
time of payment. Such Rent shall be paid to Landlord at its office
address hereinabove set forth, or at such other place as Landlord
may, from time to time, designate by notice to Tenant.
4.5 Rental payments shall be
payable in advance in equal monthly installments on the first day
of each calendar month. The Rent shall be payable by Tenant without
any set-off or deduction of any kind or nature whatsoever and
without notice or demand. The sum of all increases required to be
paid as Additional Rent or Base Rent in accordance with this Lease,
shall be paid to Landlord within 10 days following the giving of
notice hereof by Landlord of such increases.
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5.
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PARKING AND
USE OF EXTERIOR AREA
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5.1 The Tenant shall have the
right to the exclusive use of all parking spaces serving the
Property. The Landlord and Tenant mutually agree that they will not
block, hinder or otherwise obstruct the access driveways and
parking areas so as to impede the free flow of vehicular traffic in
the Office Park. In connection with the use of the loading
platforms, if any, Tenant agrees that it will not use the same so
as to unreasonably interfere with the use of the access driveways
and parking areas. Tenant shall not store trailers or other
vehicles on any portion of the access driveways or does parking
areas, and may not utilize any portion often Property for any other
purpose unless consented to in advance by Landlord.
The Tenant covenants and agrees to
use and occupy the Leased Premises only as an office, pilot scale
manufacturing facility and laboratory, which use is expressly
subject to all applicable zoning ordinances, rules and regulations
of any governmental instrumentalities, boards or bureaus having
jurisdiction thereof. Tenant’s use of the Leased Premises
shall not interfere with the peaceable and quiet use and enjoyment
by other tenants at their respective leased premises located in the
Office Park, nor shall Tenant’s activities cause Landlord to
be in default under its leases with such other tenants.
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7.
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REPAIRS AND
MAINTENANCE
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7.1 Tenant shall generally
maintain and repair the Leased Premises, in a good and workmanlike
manner, and shall, at the expiration of the term, deliver the
Leased Premises in good order and condition, damages by fire or
casualty, the elements and ordinary wear and tear excepted. Tenant
covenants and agrees that it shall not cause or permit any waste,
damage or disfigurement to the Leased Premises, or any overloading
of the floors. Tenant shall maintain and make all repairs to the
floor surface, plumbing and electrical systems including all
ballasts and fluorescent fixtures located within the Leased
Premises, and the entire HVAC system. Landlord shall be responsible
for repairs necessary to the roof, exterior and load-bearing walls,
and electric and plumbing systems to the point where they enter the
Leased Premises, unless repair is necessitated by any act of
Tenant, or its agents, employees or contractors.
7.2 The Tenant shall, at its
own cost and expense, pay all utility meter and service charges,
including gas, water and electric servicing the Leased Premises.
The Tenant agrees to maintain all leased areas at a minimum
temperature of 45 degrees, excluding cold rooms on other rooms
specifically designed for a lower temperature, to prevent the
freezing of domestic water and sprinkler pipes. Tenant shall not
store any items outside the Leased Premises, and shall deliver its
garbage and recyclables to the central receiving area on the
Property. Tenant shall dispose of all hazardous/medical waste with
an approved hauler at its own cost.
7.3 Landlord does not warrant
that any services Landlord or any public utilities supply will not
be interrupted. Services may be interrupted because of accidents,
repairs, alterations, improvements or any other reason beyond the
reasonable control of Landlord, not including the gross negligence
of Landlord or its agents.
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8.
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COMMON AREA
EXPENSES. TAXES AND INSURANCE
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8.1 The Tenant shall pay to the
Landlord, monthly, as Additional Rent its proportionate share of
the following items all of which shall be known as Common Area
Expenses:
(a) The costs incurred by the
Landlord for the operation, maintenance or repair of the following
items in the Office Park, (“Operating
Costs”):
(1) lawns and
landscaping;
(2) standard water usage and
standby sprinkler charges;
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(3) exterior lighting;
(4) exterior sewer lines;
(5) exterior utility
lines;
(6) repair and maintenance of any
signs serving the Office Park;
(7) snow removal;
(8) standard garbage disposal and
recycling;
(9) general ground
maintenance;
(10) parking lot, driveways and
walkways;
(11) maintenance contracts for the
roof;
(12) pest control;
(13) central station monitoring for
fire sprinkler system; and
(14) other ordinary maintenance
expenses normally incurred by Landlord relating to the Building and
common areas of the Office Park.
Notwithstanding the above, the
following items shall be excluded from Common Area
Expenses:
(a) Cost of decorating,
redecorating, cleaning or other services not provided on a regular
basis to the tenants of the Office Park;
(b) Wages, salaries, fees and
fringe benefits paid to administrative or executive personnel or
officers or partners of Landlord, unless employed at competitive
rates as independent contractors at the building or Office
Park;
(c) All cost relating to
activities for the solicitation, negotiation and execution of
leases of space in the Office Park;
(d) Cost of any repair made by
Landlord because of the total or partial destruction of the
building or the condemnation of a portion of the
building;
(e) Any insurance premium for
which Landlord is to be reimbursed by Tenant, pursuant to this
Lease, or by any other tenant of the Office Park;
(f) Depreciation, interest or
rents paid or incurred by Landlord;
(g) Any charge to Landlord for
income taxes, franchise taxes or similar taxes:
(h) Collection costs for bad
debt expenses not related to Tenant;
(i) Cost of tenant
improvements;
(j) Legal, accounting, bank or
other fees incurred in connection with any equity or debt financing
or sale of the building or Office Park;
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(k) Costs of specialized
services provided to other tenants but not provided to tenants
generally;
(l) Capital
expenditures;
(m) Cost to comply with ADA
related to the interior of the individual buildings, but not
exterior doors or the Office Park;
(n) Costs to cure violations of
law or ordinances;
(o) Electric for non-public
areas.
(b) The cost of the annual
insurance premiums charged to the Landlord for insurance coverage
which insure the buildings in the Office Park. The insurance shall
be for the full replacement value of all insurable improvements
with any customary extensions of coverage including, but not
limited to, vandalism, malicious mischief, sprinkler damage and
comprehensive liability, and insurance for one year’s rent.
The Landlord shall maintain said insurance in effect at all times
hereunder. Any increase in the insurance premiums due to a change
in rating of the Building which is solely attributable to
Tenant’s use, or due to special Tenant equipment, shall be
paid entirely by the Tenant. Tenant expressly acknowledges that
Landlord shall not maintain insurance on Tenant’s furniture,
fixtures, machinery, inventory, equipment or other personal
property; and
(c) A management fee of 3% of the
Tenant’s Base Rent.
8.2 Within 90 days of the
expiration of the first calendar year of the Term, the Landlord
shall furnish to Tenant a detailed breakdown of the actual Common
Area Expenses. Tenant shall have the right, within 30 days of
receipt of the breakdown, and during normal business hours, to
examine Landlords books and records with respect to the Common Area
Expenses. In the event Tenant’s Proportionate Share shall be
greater than the aggregate paid by the Tenant during the prior
period, Tenant shall pay any difference, in one lump sum within 30
days after demand. In the event Tenant shall have overpaid its
Proportionate Share, any such overage shall be applied to the Base
Rent and Additional Rent prospectively due under the Lease. This
procedure shall be followed during each year of the lease term, and
at the expiration of the Lease, any overage or underage shall be
credited or paid after computation by the Landlord, which
obligation of Landlord and Tenant shall survive the expiration of
the lease term.
8.3 In addition to the payments
set forth in Paragraph 8.1, from and after Commencement Date and
during the term, Tenant shall pay all real estate taxes and
assessments levied by the municipality on the Leased Premises and
the Tenant Improvements. Landlord shall immediately forward to
Tenant all tax