LEASE FOR COMBINATION OFFICE/WAREHOUSE AT EAGLEVIEW CORPORATE CENTERWarehouse Lease Agreement |
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Exhibit 10.1
LEASE FOR COMBINATION
OFFICE/WAREHOUSE
AT
EAGLEVIEW CORPORATE CENTER
BUILDING NO.
LANDLORD: THE HANKIN GROUP
TENANT: ISOLAGEN, INC.
TABLE OF CONTENTS
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LEASE
LEASE is made this 7 th day of April, 2005 between THE HANKIN GROUP , a Pennsylvania limited partnership (“Landlord”), with its office at Eagleview Corporate Center, 707 Eagleview Boulevard, P.O. Box 562, Exton, Pennsylvania 19341, and ISOLAGEN, INC. , a Delaware corporation (“Tenant”), with its office at 2500 Wilcrest, 5 th Floor, Houston, TX 77042.
1. LEASED SPACE AND PURPOSE.
(a) Landlord hereby rents to Tenant 86,500 rentable square feet of space within the building located at 405 Eagleview Boulevard (“Building”), including the parcel of land known as Lot 10 (the “Land”) within the center (“Center” or “Eagleview Corporate Center”) known as Eagleview Corporate Center, Route 100, Exton, Uwchlan Township, Chester County, Pennsylvania. The Building and Land are sometimes referred to collectively as the “Leased Space”. The location of the Leased Space and the Building is shown on the plan attached hereto as Exhibit “A”. The Leased Space includes all fixtures, improvements, additions and other property installed therein at the Commencement Date (hereafter defined), or at any time during the term of this Lease (other than Tenant’s movable personal property and trade fixtures), together with the Land and, in common with others, all public portions of the Center.
(b) The Leased Space shall be used and occupied as a mixed-use facility consisting of general office space, warehouse space and laboratory space in connection with Tenant’s Business (hereafter defined) and for no other purpose. For purposes hereof, Tenant’s Business shall be deemed to be the development and commercialization of pharmaceutical products and research activities in connection therewith.
(c) Tenant accepts the Leased Space in its current condition, “as is”.
(d) This Lease is contingent upon Landlord’s entering into a termination agreement in form and substance satisfactory to Landlord in its sole discretion with Viropharma, Inc., the current tenant of the Leased Space. Landlord shall notify Tenant in writing when this condition has been satisfied; in the absence of Tenant’s receipt of such notice on or before the Commencement Date, this Lease shall be null and void and neither party shall have any further obligation to the other hereunder.
2. TERM.
(a) The term of this Lease and Tenant’s obligation to pay rent hereunder shall commence upon April 1, 2005 (“Commencement Date”).
(b) The term (“Term”) of this Lease shall end on March 31, 2013 unless sooner terminated or renewed in accordance with this Lease. The portion of the term ending on March 31, 2008 is sometimes referred to herein as “Initial Period”.
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(c) Notwithstanding anything contained in this Lease to the contrary, on or before March 31, 2007, Tenant shall deliver to Landlord written notice of whether or not Tenant desires to accelerate the expiration date of the Term to the end of the Initial Period, being March 31, 2008, or continue in occupancy until the originally scheduled expiration date, March 31, 2013, in which latter event the Term of this Lease shall continue as originally scheduled until March 31, 2013. In the absence of any notice, Landlord shall issue written notice to Tenant that Landlord has not received the required notice from Tenant, and unless within five (5) days thereafter, Tenant by written notice to Landlord reinstates the Lease and the Term until March 31, 2013, Tenant shall be deemed to have elected to accelerate the expiration date to March 31, 2008, and shall vacate the Premises on such date.
3. RENT.
(a) Definitions.
(i) “Tenant’s Proportionate Share” is 100%.
(ii) “Real Estate Taxes” shall mean all taxes and assessments levied, assessed or imposed at any time by any governmental authority upon or against the Building and the land upon which the Building is situate, and also any tax or assessment levied, assessed or imposed at any time by any governmental authority in connection with the receipt of income or rents from said Building or land to the extent that the same shall be in lieu of (and/or in lieu of an increase in) all or a portion of any of the aforesaid taxes or assessments upon or against the said Building and/or land. If, however, any assessment included within Real Estate Taxes is payable in installments extending beyond the term of this Lease, Tenant shall only be obligated to pay those installments coming due during the term of this Lease. “Real Estate Taxes” shall not include any penalty or interest as a result of Landlord’s late payment. Landlord further agrees to make payment of Real Estate Taxes in a timely manner so as to take advantage of any applicable discount and to provide to Tenant copies of receipts for paid Real Estate Taxes not later than thirty (30) days after the Real Estate Taxes are due. Failure of Landlord to provide such receipts to Tenant shall permit Tenant to suspend payment of Tenant’s Proportionate Share of Real Estate Taxes until such receipts are furnished to Tenant.
At any time and from time to time during the term of this Lease, Tenant, at its expense, shall have the right to institute proceedings challenging the amount of Real Estate Taxes. Landlord agrees to reasonably cooperate with Tenant in connection therewith. Any refund awarded shall be reimbursed first to each party in proportion to the expenses incurred by such party in prosecuting such appeal, with any balance thereof next being refunded to Tenant in an amount equal to Tenant’s Proportionate Share of (A) the balance of such award remaining after the foregoing cost reimbursements (B) multiplied by a fraction (1) the numerator of which shall be the number of days during the tax year for which the refund is awarded for which Tenant has paid Real Estate Taxes pursuant to this Lease and (2) the denominator of which is 365.
(iii) “Operating Expenses” shall mean that part of any and all expenses reasonably and actually incurred by Landlord in connection with its ownership, maintenance and
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operation of the Building, the land upon which the Building is situate, excluding Real Estate Taxes and interest or amortization payments on any mortgage, but including, without limitation, electricity (other than as billed directly to tenants based on usage); insurance maintained on the Building in accordance herewith; all direct and indirect labor costs; a management fee for Landlord’s management of the relationships with contractors (other than the Association) providing yard and landscape maintenance, snow clearance and insurance required to be maintained hereunder if Landlord, upon request of Tenant, is able to place such insurance at more favorable premium rates than Tenant is able to obtain, which management fee shall not exceed four percent (4%) of the annual amount actually paid under such contracts (“Management Fee”); legal expenses; all repairs required to be performed by Landlord as provided for in this Lease; exterior, roof and structural decoration, repairs and maintenance; snow removal; building supplies; all charges for the exterior of the Building for electricity; the cost of operating an identification sign or signs for the Building; replacing of paving, curbs, walkways, directions or other signs; drainage; maintenance and monitoring of fire sprinkling systems (if any); the Building’s proportionate share of common expenses owed to the Eagleview Corporate Center Association or its successor or any other similar entity which owns and maintains the common areas of the Center (collectively, “Association”); and such other expenses as Landlord may deem necessary and proper in connection with the operation and maintenance of the exterior, roof and structure of the Building, excluding any costs which under generally accepted accounting principles (“GAAP”) are capital expenditures; provided, however, that Operating Expenses shall also include the annual amortization (over the anticipated useful life established in accordance with GAAP) of a capital improvement falling within any of the following categories: (i) a labor saving device or improvement which is intended to reduce or eliminate any other component of Operating Expenses; (ii) an installation or improvement required by reason of any law, ordinance or regulation, which requirement did not exist on the date of this Lease and is generally applicable to similar buildings; (iii) an installation or improvement which directly enhances safety of tenants in the Building or Center generally. Landlord shall have the right to bill Tenant directly for any items of Operating Expenses which can be attributed directly to Tenant’s use only.
Notwithstanding any provision to the contrary, Operating Expenses shall not include:
(A) any payments (such as salaries or fees) to the Landlord’s executive personnel or in-house site managers except for the Management Fee;
(B) depreciation or interest, except to the extent permitted above in connection with capital improvements;
(C) mortgage or ground lease payments;
(D) taxes on the Landlord’s business (such as income, excess profits, franchise, capital stock, estate, inheritance) except to the extent same are in lieu of Real Estate Taxes or increases in Real Estate Taxes;
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(E) leasing commissions, broker’s fees or legal fees incurred in connection with leases of space in the Building;
(F) legal fees that do not directly benefit Tenant or the Building (provided that legal fees incurred in connection with leases of space in the Building or in enforcing tenant obligations shall not be deemed to benefit the Building);
(G) costs to correct defective repairs or replacements hereinafter provided by or at the direction of Landlord;
(H) costs of repairs covered by valid warranties;
(I) expenses paid directly by a tenant for any reason (such as excessive utility use, direct utility consumption, damage for which such tenant is responsible);
(J) costs for improving any tenant’s space;
(K) any repair or other work necessitated by condemnation, or by fire or other insured casualty in excess of applicable deductibles;
(L) any costs, fines and the like due to Landlord’s violation of any law, governmental rule or authority; (M) refinancing costs;
(N) costs for any conversion of the heating system to gas heat except to the extent such conversion is undertaken in an effort to reduce Operating Expenses and the cost thereof is treated in the same manner as a capital improvement; (O) costs paid to Landlord or its affiliates other than the Management Fee which exceed those reasonably charged in arms length transactions with third parties in the general area of the Building; and
(P) services, benefits or both provided to some tenants but not to Tenant.
(iv) The “Base Rent for Adjustment Purposes” shall mean, for the first year of the Term following the Initial Period beginning April 1, 2008, $1,119,310.00, and for each subsequent year during the five year period beginning April 1, 2008 and expiring March 31, 2013, the Minimum Annual Rent under this Lease in effect for the immediately preceding year.
(v) The “CPI U” shall mean the Consumer Price Index established by the U.S. Department of Labor Bureau of Labor Statistics for all urban consumers for the Philadelphia metropolitan area (CPI-U) (1982-1984 = 100).
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(vi) The “Base Index” shall mean, for the initial year following the Initial Period, the CPI U for March, 2005, and for each subsequent year, the CPI U for the month of March one year prior to the Comparison Index.
(vii) The “Comparison Index” shall mean the CPI U for month of March immediately preceding the commencement of each year following the Initial Period.
(viii) The “CPI Adjustment” shall mean, for each year of the Term following the Initial Period, an increase in the Base Rent for Adjustment Purposes by the percentage increase in the Comparison Index over the Base Index, applicable to such year.
The Base Index and Comparison Index for each year of the Term following the Initial Period shall be:
(b) Tenant shall pay Landlord the minimum annual rent (“Minimum Annual Rent”) during the Term in the amounts set forth below, which annual amount shall be paid in equal monthly installments as set forth below on the first day of each calendar month in advance. All rent shall be payable, in advance, and without prior notice or demand, at the address of Landlord set forth in the heading of this Lease or at such other place, or to such other person, as Landlord may from time to time direct in written notice to Tenant. During the Initial Period, Minimum Annual Rent shall be $778,500.00 per year, payable in monthly installments of $64,875.00 each. Thereafter, for each year of the Term following the Initial Period, Minimum Annual Rent shall increase to a sum equal to the Base Rent for Adjustment Purposes, increased by one half the CPI Adjustment, but in no event shall such Minimum Annual Rent be (1) less than the Base Rent for Adjustment Purposes for such year, or (2) during the first year of the five year period beginning April 1, 2008, greater than $1,297,500, or (3) during any subsequent year of such five year period, greater than $1,384,000. Upon the expiration of the Initial Period, and for each year of the Term thereafter, Landlord shall notify Tenant of the Minimum Annual Rent in effect for such year; in the event of any delay in calculation because of a delay in publication of the applicable Comparison Index, Tenant shall pay rent on account based upon the Minimum Annual Rent previously in effect, to be adjusted when the Comparison Index is published.
(c) In addition, Tenant shall pay to Landlord as Additional Rent in equal monthly installments one twelfth (1/12) of Tenant’s Proportionate Share of annual Real Estate Taxes and Operating Expenses, at the time of payment of each monthly installment of Minimum Annual Rent, based upon the most recent costs of Operating Expenses and Real Estate Taxes available.
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For the period from the Commencement Date until the issuance of a statement pursuant to subparagraph 3(d) below, such monthly installment shall be equal to $26,742.92.
(d) Within ninety (90) days of the expiration of each calendar year Landlord shall furnish Tenant with a written statement of the actual Operating Expenses and Real Estate Taxes incurred for such year itemizing the expenses claimed by Landlord in reasonable detail. Within ten (10) days of the rendition of such statement, Tenant shall pay any amounts in excess of those collected pursuant to the payments on account of Real Estate Taxes and Operating Expenses pursuant to paragraph 3(c) hereof, and any overpayments shall be credited against the next installment(s) of rent due under this Lease or, at Tenant’s option, refunded to Tenant. In the event the first and/or last years of the Term of this Lease shall not be full calendar years, then Tenant’s obligation for Operating Expenses and Real Estate Taxes attributable to such years shall be pro rated. Tenant may, at its own cost and expense, after full payment of all sums due and owing, audit Landlord’s books and records not more than once each year within sixty (60) days after Landlord’s delivery of its annual statement of Operating Expenses, which books and records shall be maintained in accordance with GAAP. Notwithstanding the foregoing, if any said review of Landlord’s books and records reveals that any item(s) were incorrectly included in Operating Expenses, Tenant shall have the right to inspect Landlord’s books and records with respect to such items for each prior lease year and an adjustment, if any, shall be made in accordance herewith. If Tenant’s audit determines that Landlord’s total charges for Operating Expenses or Real Estate Taxes for a given lease year exceed by more than 5% the total amount properly chargeable to Tenant under this Lease for such year, Landlord, in addition to reimbursing Tenant such excess amount, shall pay Tenant an amount equal to the cost of the audit.
(e) On or before the Commencement Date, Tenant shall establish with a commercial bank approved by Landlord (which approval shall not be unreasonably withheld or delayed), an interest bearing account, into which Tenant shall deposit the sum of $3,298,245 (representing Minimum Annual Rent and estimated Operating Expenses and Real Estate Taxes for the Initial Period) (the “Rent Account”). Tenant shall instruct the bank in which the Rent Account is established (the “Rent Bank”) that there shall be wired into Landlord’s account pursuant to wiring instructions issued by Landlord the sum of $91,618 on the first day of each month beginning on the Commencement Date through and including March 1, 2008, and that such instructions shall be irrevocable absent written instructions (1) from Landlord alone with respect to either (A) an assignment of this Lease and the rights to the Rent Account, instructing the Rent Bank to make payments to Landlord’s assignee, or (B) a request for payment of the balance remaining in the Rent Account, if such request is made after the occurrence of an Event of Default, and such request is accompanied by certification from Landlord that a material Event of Default has occurred, notice of the Event of Default has been properly delivered to Tenant, the grace or notice period required under the Lease and stated in the notice of the default has expired, and the Event of Default has not been cured; or (2) with respect to any other instructions modifying the amount or timing of payment, by Landlord and Tenant jointly. Landlord shall send to Tenant in the manner for delivering notices under this Lease a copy of the request, certification and notice of the Event of Default attached to the certification referred to in clause (B) of the preceding sentence when it is sent or delivered to the Rent Bank. Such disbursements shall be credited
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against Tenant’s rent obligations as they come due, and in the event any additional sums are due and owing from Tenant to Landlord, by reason of annual Operating Expense or Real Estate Tax adjustments, or otherwise, the same shall be paid directly by Tenant to Landlord as billed. Tenant hereby grants to Landlord a security interest in the Rent Account, as security for Tenant’s performance of all of its obligations under this Lease, and Tenant shall execute (and cause the Rent Bank to execute) a control agreement and such further documents and instruments reasonable or necessary to perfect such security interest in favor of Landlord, having priority over any claims that may be made by any other party (including those of the Rent Bank). If this Lease terminates pursuant to Section 18(e) or 19, the foregoing security interest shall terminate upon Tenant satisfying any accrued and unpaid rent obligations, and the balance in the Rent Account shall be returned to Tenant. Accrued interest on the Rent Account shall be disbursed to Tenant periodically in accordance with the rules established by the Rent Bank for disbursing interest from similar accounts.
4. ADDITIONAL RENT.
Tenant shall pay to Landlord as “Additional Rent” (in addition to sums payable pursuant to paragraphs 3 (c) and 3(d)) the following:
(a) Expenses Incurred by Landlord as a Result of Tenant’s Default . All sums which may become due by reason of Tenant’s failure to comply with any of the terms, conditions and covenants of this Lease to be kept and observed by Tenant, and any and all damages, costs and expenses (including without limitation thereto reasonable attorney’s fees) which Landlord may suffer or incur by reason of any default of Tenant and any damage to the Building or the real estate of which the Building is a part caused by any negligence or willful misconduct of Tenant or violation of Tenant’s covenants in Section 5(a) below, together with interest to the date of payment (whether before or after entry of judgment and issuance of execution thereon) at a rate equal to five percent (5%) above the prime interest rate (or similar rate if the prime interest rate is no longer published) of Wachovia Bank or its successor, in effect on the date during the period said payment is due (“Default Rate”), which shall continue to accrue interest at the Default Rate after entry of judgment and issuance of execution thereon until paid in full.
(b) Use and Occupancy Taxes . All use and occupancy taxes imposed by any governmental body allocable to the Leased Space.
(c) Utilities . All charges for heat, gas, water, electric, trash and sewage disposal for the Leased Space, whether billed directly by the providers of the same to Tenant or by Landlord as the owner of the Building, which charges shall not exceed the charges actually incurred by Landlord therefor.
(d) For purposes of this Lease, the term “Rent” or “rent” shall be deemed to refer to Minimum Annual Rent and Additional Rent.
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5. NEGATIVE COVENANTS OF TENANT: HAZARDOUS SUBSTANCES.
(a) Tenant will not:
(i) damage the Leased Space or any other part of the Building;
(ii) bring into or permit to be kept in the Leased Space any dangerous, explosive or obnoxious substances except as may be used in Tenant’s Business which use Tenant shall undertake in compliance with all applicable laws regulating same;
(iii) conduct itself or permit its agents, servants, employees or invitees to conduct themselves in a manner that in Landlord’s judgment reasonably exercised is improper or unsafe except that the operation of, or activities related to, Tenant’s Business shall not be deemed to violate this provision, provided same are undertaken in compliance with all applicable laws;
(iv) manufacture any commodity other than in the course of Tenant’s Business or prepare or dispense any food or beverages in the Leased Space, except for consumption in the Leased Space by Tenant, its employees or invitees;
(v) remove, attempt to remove or manifest any intention to remove Tenant’s goods or property from the Leased Space other than in the ordinary course of business;
(vi) do or suffer to be done, any act, matter or thing objectionable to Landlord’s fire insurance companies or Board of Underwriters whereby the fire insurance or any other insurance now in force or hereafter to be placed by Landlord on the Leased Space or the Building or Center shall become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the Commencement Date. Tenant agrees to pay to Landlord as Additional Rent, any and all increases in premiums for insurance carried by Landlord on the Leased Space, or on the Building, caused in any way by the occupancy of Tenant.
(b) Tenant’s Responsibility Regarding Hazardous Substances.
(i) The following definitions shall apply herein:
(A) Hazardous Substances . The term “Hazardous Substances,” as used in this Lease, shall include, without limitation, flammables, explosives, radioactive materials, asbestos, polychlorinated biphenyls (PCB’s), chemicals known to cause cancer or reproductive toxicity, pollutants, contaminants, hazardous wastes, toxic substances or related materials, petroleum and petroleum products, and substances declared to be hazardous or toxic under any law or regulation now or hereafter enacted or promulgated by any governmental authority.
(B) Tenant Responsible Parties . The term “Tenant Responsible Parties” as used in this Lease shall mean Tenant, its employees, agents, contractors and/or invitees.
(ii) Tenant’s Restrictions. Tenant shall not cause or permit to occur:
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(A) Any violation of any federal, state, or local law, ordinance, or regulation now or hereafter enacted, related to environmental conditions on, under, or about the Leased Space or Center, arising from the use or occupancy of the Leased Space by any Tenant Responsible Party, including, but not limited to, soil and ground water conditions; or
(B) The use, generation, release, manufacture, refining, production, processing, storage, or disposal of any Hazardous Substance on, under, or about the Leased Space or Center except as may be used in Tenant’s Business which use Tenant shall undertake in compliance with all applicable Laws (defined below).
(iii) Environmental Clean-Up.
(A) Tenant shall, at Tenant’s own expense, comply with all laws regulating the use, generation, storage, transportation, or disposal of Hazardous Substances (“Laws”) by Tenant Responsible Parties.
(B) Tenant shall, at Tenant’s own expense, make all submissions to, provide all information required by, and comply with all requirements of all governmental authorities (“Authorities”) under the Laws as are applicable to use of Hazardous Substances by Tenant Responsible Parties.
(C) Should any Authority or any third party demand that a clean-up plan be prepared and that a clean-up be undertaken because of any deposit, spill, discharge, or other release of Hazardous Substances that occurs during the Term of this Lease at or from the Leased Space and which arises at any time from the use of Hazardous Substances by Tenant Responsible Parties, then Tenant shall, at Tenant’s own expense, prepare and submit the required plans and all related bonds and other financial assurances, and Tenant shall carry out all such clean-up plans.
(D) Tenant shall promptly provide all information regarding the use, generation, storage, transportation, or disposal of Hazardous Substances by Tenant Responsible Parties that is requested by Landlord. If Tenant fails to fulfill any duty imposed under this subparagraph (iii) within a reasonable time, Landlord may do so; and in such case, Tenant shall cooperate with Landlord in order to prepare all documents Landlord deems necessary or appropriate to determine the applicability of the Laws to the Leased Space and use of Hazardous Substances by Tenant Responsible Parties, and for compliance therewith, and Tenant shall execute all documents promptly upon Landlord’s request. No such action by Landlord and no attempt made by Landlord to mitigate damages under any Law shall constitute a waiver of any of Tenant’s obligations under this Subparagraph (iii).
(E) Tenant’s obligations and liabilities under this Subparagraph (iii) shall survive the expiration of this Lease.
(iv) Tenant’s Indemnity.
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(A) Tenant shall indemnify, defend, and hold harmless Landlord, the manager of the Center, and their respective officers, directors, beneficiaries, shareholders, partners, agents and employees, from all fines, suits, procedures, claims, and actions of every kind, and all costs associated therewith (including reasonable attorneys’ and consultants’ fees) arising out of or in any way connected with any deposit, spill, discharge, or other release of Hazardous Substances that occurs during the Term of this Lease at or from the Leased Space and which arises at any time from use of Hazardous Substances by Tenant Responsible Parties, or from failure by Tenant Responsible Parties to provide all information, make all submissions, and take all steps required by all Authorities under the Laws with respect thereto.
(B) Tenant’s obligations and liabilities under this Subparagraph (iv) shall survive the expiration of this Lease.
(C) Attached to this Lease as Exhibit “C” and made part hereof is a Rider regarding Industrial Waste Discharge within Eagleview Corporate Center.
6. LATE PAYMENT.
If any payment required by Tenant under any of the terms hereof shall not be paid within five (5) days after written notice from Landlord that such payment is overdue, Tenant shall, upon demand, pay a late charge to Landlord equal to the greater of (a) Fifty ($50.00) Dollars or (b) $.05 for each dollar so due, and such late charge shall be deemed Additional Rent for purposes of this Lease; provided, however, that such late charge shall be due immediately without notice upon any failure to pay when due during any twelve (12) month period in which Landlord shall have given such written notice on two (2) prior occasions.
7. CONDITION OF LEASED SPACE.
Tenant has accepted the Leased Space and acknowledges that the Leased Space is in the condition required by this Lease.
8. TENANT’S ALTERATIONS.
(a) Except as hereafter provided, Tenant shall make no alterations, additions or improvements (“Tenant Alterations”) to the Leased Space without the consent of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. At the time of Landlord’s consent, Landlord shall designate whether Tenant shall be required to remove the proposed Tenant Alteration upon termination of this Lease, and the absence of such designation in Landlord’s written consent shall be deemed Landlord’s agreement that Tenant shall not be obligated to remove Tenant Alterations upon the termination of this Lease. Landlord also may impose such reasonable conditions as part of its consent as Landlord deems appropriate, taking
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into consideration the nature of the proposed Tenant Alteration, including, without limitation, requiring Tenant to furnish Landlord with security for the payment of all costs to be incurred in connection with such work, insurance, and copies of the plans, specifications and permits necessary for such work. Nothing herein, however, shall be construed to obligate Tenant to construct any Tenant Alteration for which Landlord has given its consent.
(b) Landlord’s consent shall not be required for Tenant Alterations which (i) do not adversely impact the structural integrity of the Building or the systems serving the Building or their operation, (ii) are not visible from the Building exterior and (iii) qualify under the following:
(A) The Tenant Alteration is to be made to portions of the Leased Premises other than the laboratory areas and the cost thereof is $10,000 or less with respect to any Tenant Alteration project (or $20,000 or less in the aggregate with respect to Tenant Alteration projects undertaken over any twelve (12) consecutive month period); or
(B) The Tenant Alteration is to be made to the laboratory areas of the Leased Premises and the cost thereof is $50,000 or less with respect to any Tenant Alteration project (or $100,000 or less in the aggregate with respect to Tenant Alteration projects undertaken over any twelve (12) consecutive month period).
Tenant Alterations described in this subsection (b) for which Landlord’s consent is not required hereinafter are called “Permitted Tenant Alterations.” Notwithstanding the foregoing, painting or carpeting of the interior of the Leased Space and like cosmetic improvements shall not be deemed Tenant Alterations regardless of the cost thereof. Tenant shall not be obligated to remove Permitted Tenant Alterations upon the termination of this Lease unless an Event of Default has occurred which is then continuing and Landlord so requires such removal.
(c) All Tenant Alterations shall be done at Tenant’s expense by contractors approved by Landlord, which approval shall not be unreasonably withheld, delayed or conditioned and shall be deemed given unless Landlord notifies Tenant of its objections within ten (10) business days after delivery of Tenant’s request for approval. With respect to Tenant Alterations other than the Permitted Tenant Alterations, no work shall be performed until the plans therefore have been approved by Landlord, which approval shall not be unreasonably withheld, delayed or conditioned and shall be deemed approved unless Landlord notifies Tenant of objections to the proposed plans within ten (10) business days after delivery to Landlord of a complete set of the plans therefor. In connection with the review of plans submitted by Tenant, Landlord shall be reimbursed by Tenant for Landlord’s cost in reviewing such plans at the rate of $125.00 per hour; subject to reasonable increase to reflect the then current hourly charge imposed for such review by Landlord for its tenants in the Center generally, and prior to undertaking any such review, Landlord shall provide a statement of the maximum review hours to be dedicated to such review. With respect to Permitted Tenant Alterations, Tenant shall provide Landlord with a copy of Tenant’s application for a building permit therefor, if applicable (together with all attachments thereto), and no review fee shall be charged to Tenant by Landlord in connection therewith nor
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shall Landlord’s approval of such application be required. Tenant shall provide copies of as-built plans and specifications for all Tenant Alterations to Landlord within a reasonable time of completion of the Tenant Alteration. All Tenant Alterations shall be done in a first class, workmanlike manner and shall comply with all insurance requirements then made available to Tenant and all applicable laws, ordinances, rules and regulations of governmental authorities having jurisdiction thereover, and, where applicable, with all reasonable requirements of Landlord imposed as a condition of such consent.
(d) If, as a condition of Landlord’s consent, removal of a Tenant Alteration is required at termination of this Lease, Tenant shall promptly remove such Tenant Alterations and repair any damage occasioned by such removal. In default thereof, Landlord may effect said removal and repairs at Tenants expense. With respect to any Tenant Alterations which Tenant is not obligated to remove hereunder (including without limitation Permitted Tenant Alterations), such Tenant Alterations, if not removed by Tenant upon the termination of this Lease, shall be deemed abandoned by Tenant, and deemed a part of Landlord’s property, notwithstanding any provision of Section 16 to the contrary.
9. MECHANIC’S LIENS.
Prior to Tenant’s performing or ordering (other than through Landlord or Landlord’s contractors) any construction or other work on or about the Leased Space for which a lien could be filed against the Leased Space or the Building, Tenant shall enter into a written waiver of liens agreement with the contractor who is to perform such work, and such written agreement shall be filed, in accordance with the Mechanics’ Lien Law of the state where the Building is located prior to the commencement of such work. Tenant’s failure to enter into or record such waiver of liens shall not be deemed a default hereunder. Notwithstanding the foregoing, if any mechanics’ or other lien shall be filed against the Leased Space or the Building purporting to be for labor or material furnished or to be furnished at the request of the Tenant other than through Landlord or Landlord’s contractors, then Tenant shall at its expense cause such lien to be discharged of record by payment, bond or otherwise, within fifteen (15) days after Tenant receives notice of the filing thereof. If Tenant shall fail to cause such lien to be discharged by payment, bond or otherwise within such period, Landlord may cause such lien to be discharged by payment, bond or otherwise, without investigation as to the validity thereof or as to any offsets or defenses thereto, and Tenant shall, upon demand, reimburse Landlord for all amounts paid and costs incurred, including attorneys’ fees, in having such lien discharged of record. If, however, Tenant notifies Landlord during such fifteen (15) day period that it disputes the validity of such lien and provides security reasonably acceptable to Landlord in an amount which is sufficient to discharge such lien in full, Landlord shall refrain from satisfying such lien for a period not to exceed one hundred twenty (120) days.
10. CONDITION OF LEASED SPACE.
Tenant acknowledges and agrees that, except as expressly set forth in this Lease, there have been no representations or warranties made by or on behalf of Landlord with respect to the
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Leased Space or the Building or with respect to the suitability of either for the conduct of Tenant’s Business.
11. COMMON AREA MAINTENANCE.
(a) Landlord shall provide all maintenance, repairs and replacements to all common areas external to the Building, and the roof and structure of the Building. The cost of same shall be included in the Operating Expenses to the extent provided in Section 3(a)(iii) unless the necessity for the foregoing arises from the gross negligence or willful and wanton misconduct of Landlord or its employees, in which case such cost shall not be included as part of the Operating Expenses but shall be paid by Landlord (without prejudice to Landlord’s right to recover same from the responsible party). Any such maintenance, replacements or repairs and any labor performed or materials furnished by or upon the direction of Landlord shall be performed in a good and workmanlike manner, using only materials of at least the same quality and integrity as that being repaired or replaced, and performed and furnished in compliance with all applicable laws, regulations, ordinances and requirements of all duly constituted authorities or governmental bodies having jurisdiction over the Building, and the requirements of any board of underwriters having jurisdiction thereof. It is understood that this is a “triple net” lease, with Minimum Annual Rent paid to Landlord intended to be net of taxes, repairs not covered by this Section or Section 14, insurance and Operating Expenses.
(b) Unless otherwise agreed with Tenant in writing, Landlord agrees that all maintenance to the common areas external to the Building which the Association offers to perform or is obligated to perform for the benefit of lots in the Center shall be performed by the Association. Landlord shall use diligent efforts to enforce any such obligation of the Association. Except during such period of time as Landlord or its affiliates control the Association, Landlord shall not be liable in damages or otherwise for temporary delay or failure in furnishing any service or facility to be provided by the Association.
(c) In the absence of a judgment to the contrary, in no event shall any delay or failure to provide the services or obligations under subsections (a) or (b) above, regardless of cause, be deemed to be an eviction or disturbance of Tenant’s use and possession of the Leased Space, render Landlord liable to Tenant, authorize abatement of rent, relieve Tenant from performance of its obligations under this Lease, or result in a termination of this Lease. The foregoing, however, shall not be deemed to prevent Tenant’s exercise of its rights under Section 42 hereof.
12. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, without the prior written consent of Landlord, assign or mortgage (except as permitted under Section 36(b) hereof) this Lease or any interest therein or sublet the Leased Space or any part thereof. For the purposes of this paragraph, the sale or assignment of a controlling interest in the Tenant corporation or a majority interest in the Tenant partnership as the case may be shall be deemed an assignment, but the assignment to a parent, wholly-owned subsidiary of the Tenant or successor corporation shall be permitted, provided that such assignee assumes the obligations of Tenant and that such assignment shall not relieve
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Tenant of its obligations hereunder. For purposes herein, (A) a successor corporation is one into which Tenant is merged or consolidated, or which acquired those of Tenant’s assets or business located in the Leased Space as of the date of the assignment, and (B) a controlling in |
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