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Exhibit 10.2
LEASE
BETWEEN
THE CONNELL COMPANY
LANDLORD
AND
GENTA INCORPORATED
TENANT
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TABLE OF CONTENTS
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ARTICLE I. BASIC LEASE INFORMATION ............................................................ 1
Section 1.01. Building and Land; Real Estate.............................. 1
Section 1.02. Demised Premises ........................................... 1
Section 1.03. Base Rent .................................................. 1
Section 1.04 Letter of Credit............................................ 2
Section 1.05. Term ....................................................... 3
Section 1.06. Tenant's Pro Rata Share .................................... 3
Section 1.07. Relocation ................................................. 3
ARTICLE II. DEFINITIONS ............................................................ 3
ARTICLE III. PREPARATION OF THE DEMISED PREMISES ............................................... 6
Section 3.01. Demised Premises Accepted "AS, IS"; Tenant Work ............ 6
Section 3.02. Tenant's Early Access ...................................... 7
Section 3.03. Insurance Covering Tenant Work ............................. 8
Section 3.04. Certain Landlord Representations; No Other Representation .. 8
ARTICLE IV. OPTION TO RENEW ............................................................ 8
Section 4.01. Option to Renew ............................................ 8
ARTICLE V. RENT ............................................................ 8
Section 5.01. Base Rent .................................................. 8
Section 5.02. Tax Increase Amount ........................................ 9
Section 5.03. Building Operating Costs; Adjustments ...................... 9
Section 5.04. Payment of Rent ............................................ 13
ARTICLE VI. SIGNS ............................................................ 13
Section 6.01. Directory .................................................. 13
Section 6.02. Signs ...................................................... 13
ARTICLE VII. REPAIRS, ALTERATIONS, COMPLIANCE, SURRENDER ....................................... 14
Section 7.01. Repairs by Landlord ........................................ 14
Section 7.02. Repairs, Maintenance and Improvements by Tenant ............ 14
Section 7.03. Approval by Landlord of Improvements ....................... 14
Section 7.04. Emergency Repairs .......................................... 15
Section 7.05. Electrical Lines ........................................... 15
Section 7.06. Surrender of Premises ...................................... 16
ARTICLE VIII. SERVICES AND UTILITIES ........................................................... 16
Section 8.01. Landlord's Services ........................................ 16
Section 8.02. Electricity ................................................ 17
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ARTICLE IX. USE AND OPERATION ............................................................ 18
Section 9.01. Use ........................................................ 18
Section 9.02. Rules and Regulations Established by Landlord............... 18
Section 9.03. Restriction on Tenant's Activities.......................... 18
Section 9.04. Illegal Purposes ........................................... 18
ARTICLE X. TRANSFER OF INTEREST; PRIORITY OF LIEN............................................... 19
Section 10.01. Assignment, Subletting, etc. ............................... 19
Section 10.02. Subordination .............................................. 20
Section 10.03. Attornment ................................................. 20
Section 10.04. Transfer of Landlord's Interest ............................ 20
Section 10.05. Mortgagee's Rights ......................................... 21
ARTICLE XI. COMMON AREA ............................................................ 21
Section 11.01. Use of Common Area ......................................... 21
Section 11.02. Landlord's Rights .......................................... 21
Section 11.03. License Numbers ............................................ 21
Section 11.04. Landlord's Obligation with Respect to Parking Area ......... 22
ARTICLE XII. DESTRUCTION OR DAMAGE ............................................................ 22
Section 12.01. Rent Abatement ............................................. 22
Section 12.02. Option to Terminate ........................................ 22
Section 12.03. Landlord's Obligation to Rebuild ........................... 22
Section 12.04. Landlord's Liability ....................................... 23
ARTICLE XIII. CONDEMNATION ............................................................ 23
Section 13.01. Definitions ................................................ 23
Section 13.02. Taking of Demised Premises ................................. 23
Section 13.03. Taking for Temporary Use ................................... 23
Section 13.04. Disposition of Awards ...................................... 24
ARTICLE XIV. TENANT'S INSURANCE ............................................................ 24
Section 14.01. General Insurance .......................................... 24
Section 14.02. Tenant Liability Insurance ................................. 24
Section 14.03. Tenant Fire Insurance ...................................... 25
Section 14.04. Tenant Worker's Compensation Insurance ..................... 25
Section 14.05. Other Tenant Insurance ..................................... 25
Section 14.06. Waiver of Subrogation ...................................... 25
Section 14.07. Insurance Rate ............................................. 25
Section 14.08. Toxic and Hazardous Materials .............................. 25
ARTICLE XV. INDEMNIFICATION AND LIABILITY ...................................................... 26
Section 15.01. Indemnification ............................................ 26
Section 15.02. Waiver and Release ......................................... 27
Section 15.03. Liability of Landlord ...................................... 27
ARTICLE XVI. DEFAULT; REMEDIES ............................................................ 28
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Section 16.01. Default .................................................... 28
Section 16.02. Landlord's Remedy .......................................... 29
Section 16.03. Landlord's Re-Entry ........................................ 29
Section 16.04. Landlord's Additional Remedies ............................. 29
Section 16.05. Agreed Final Damages ....................................... 30
Section 16.06. Waiver of Right of Redemption .............................. 30
Section 16.07. Landlord's Right to Perform for Account of Tenant .......... 30
Section 16.08. Additional Remedies, Waivers, etc. ......................... 30
ARTICLE XVII. TENANT'S ESTOPPEL CERTIFICATE .................................................... 31
ARTICLE XVIII. RIGHT OF ACCESS ............................................................ 31
ARTICLE XIX. COVENANT OF QUIET ENJOYMENT ....................................................... 31
ARTICLE XX. MISCELLANEOUS ............................................................ 31
Section 20.01. Interpretation ............................................. 31
Section 20.02. Construction of Words and Phrases .......................... 32
Section 20.03. Written Agreement Required ................................. 33
Section 20.04. Notice ..................................................... 33
Section 20.05. Survival of Provisions upon Termination of Lease ........... 34
Section 20.06. Successors and Assigns ..................................... 34
Section 20.07. Guarantor of Tenant ........................................ 34
Section 20.08. Tenant at Sufferance ....................................... 34
Section 20.09. Interest ................................................... 34
Section 20.10. Late Charge ................................................ 34
Section 20.11. Non-Waiver ................................................. 34
Section 20.12. Broker ..................................................... 35
Section 20.13. Short Form Lease ........................................... 35
Section 20.14. Mechanics' Liens ........................................... 35
Section 20.15. Corporate Authority ........................................ 35
Section 20.16. Force Majeure .............................................. 35
Section 20.17. Governing Law .............................................. 36
Section 20.18. Financial Statements........................................ 36
ARTICLE XXI. ENVIRONMENTAL MATTERS. ............................................................ 36
Section 21.01. Industrial Site Recovery Act ............................... 36
Section 21.02. Spill Act .................................................. 38
Section 21.03. Other Environmental Laws ................................... 39
Section 21.04 Survival of Environmental Terms and Conditions.............. 39
EXHIBITS
Exhibit A Legal Description of the Land
Exhibit B Rental Plan showing the Demised Premises
Exhibit C-1 Plans and Specifications
Exhibit C-2 Tenant Workletter
Exhibit D Rules and Regulations
Exhibit E Building Janitorial Specifications
Exhibit F Form of Letter of Credit
Exhibit G Commencement Date Addendum
Exhibit H Tenant Reserved Parking Spaces
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THIS IS A CONFIDENTIAL DOCUMENT
LEASE
THIS AGREEMENT OF LEASE (together with all Exhibits and Schedules attached
or to be attached hereto, this "Lease") is dated as of June 28, 2000, between
THE CONNELL COMPANY, a New Jersey corporation, whose address is 45 Cardinal
Drive, Westfield, New Jersey 07090 (subject to Section 10.04 hereof, "Landlord")
and GENTA INCORPORATED, a Delaware corporation whose address is 99 Hayden
Avenue, Suite 200, Lexington, Massachusetts 02421("Tenant").
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
Demised Premises (hereinafter defined) for the Term (hereinafter defined) at the
rent and subject to all of the terms and conditions set forth herein. Intending
to be legally bound hereunder and in consideration of $1.00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree with each other as follows:
ARTICLE I. BASIC LEASE INFORMATION
SECTION 1.01. BUILDING AND LAND; REAL ESTATE:
The "Building" is Connell Corporate Center II, Two Oak Way, Berkeley
Heights, New Jersey 07922. The Land shall mean all that real property which is
more particularly described in Exhibit A attached hereto and made a part hereof.
The Building and the Land are sometimes referred to collectively herein as the
"Real Estate."
SECTION 1.02. DEMISED PREMISES:
The Demised Premises is the portion of the Building leased to Tenant,
including terrace, if any, consisting of 10,455 usable square feet of floor area
converted to 12,807 rentable square feet of floor area by multiplying the usable
square feet by 122.5%, and located on the second floor and designated as
"Demised Premises" on the "Rental Plan" (which is attached hereto as Exhibit B).
The Demised Premises includes any alterations, additions, improvements or
repairs of any nature made thereto. This computation of rentable square footage
shall be binding and conclusive on the parties and their successors and assigns.
SECTION 1.03. BASE RENT:
"Base Rent" shall be an amount equal to $25.00 per rentable square foot, or
$320,175.00 in the aggregate per annum ($26,681.25 per month); and shall be
payable per Section 5.01 hereof (it being understood that payment for
electricity per Section 8.02 hereof (which, as of the date hereof, is $1,440.79
per month) is an amount in addition to Base Rent); provided, however, that
during any Renewal Term, Base Rent shall be an amount determined pursuant to
Section 4.01(b) hereof.
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SECTION 1.04. LETTER OF CREDIT:
(a) Tenant shall cause an irrevocable, transferable letter of credit,
substantially in the form of Exhibit F attached hereto (the "Letter of Credit"),
to be issued and outstanding in favor of Landlord, at all times from the date
hereof until sixty (60) days after the expiration or earlier termination of this
Lease. Each Letter of Credit shall (i) be issued by a domestic United States
financial institution with a credit rating of at least A1 by Moody's Investors
Service, Inc. (or upon modification or replacement of such financial rating
system, its then equivalent rating) (the "Required Credit Rating") and otherwise
acceptable to Landlord (the "Letter of Credit Provider"), (ii) have an
expiration date of not earlier than one calendar year following the date of
issue, (iii) at all times be in an available amount (the "Required Letter of
Credit Amount") of not less than nine (9) months of Base Rent, which as of the
date hereof is $240,131.25, and (iv) provide that during the Term it shall be
automatically extended for an additional period of one year from the scheduled
expiration date unless at least thirty (30) days prior to such date Landlord
receives from the Letter of Credit Provider thereof notice in writing that such
Letter of Credit Provider elects not to renew such Letter of Credit for such
additional period. If the Letter of Credit Provider elects not to renew such
Letter of Credit for such additional period, then Tenant shall cause a new
Letter of Credit to be issued in replacement thereof from a Letter of Credit
Provider at least fifteen (15) days prior to the expiration date of the existing
Letter of Credit; provided, however, that Tenant shall not permit an existing
Letter of Credit to expire until such new Letter of Credit has been issued.
(b) If, while a Letter of Credit is required to be outstanding hereunder,
the financial rating of the Letter of Credit Provider providing the Letter of
Credit is less than the Required Credit Rating, then Landlord may require Tenant
to provide, and Tenant shall provide, a replacement Letter of Credit issued by a
Letter of Credit Provider with a credit rating that meets the Required Credit
Rating within thirty (30) days of demand therefor by Landlord, which replacement
Letter of Credit shall comply with the terms of Section 1.04(a) hereof, provided
that nothing in this Section 1.04(b) shall affect the obligations of Tenant
under Section 1.04(a) hereof. Promptly following receipt of such replacement
Letter of Credit, Landlord shall surrender the Letter of Credit being replaced
to the Letter of Credit Provider thereof.
(c) Notwithstanding the foregoing, on the one year anniversary of the
Commencement Date and each anniversary thereafter, Landlord may (by providing
written notice thereof to Tenant) reduce the Required Letter of Credit Amount by
an amount equal to two (2) months of Base Rent if (i) Tenant shall have provided
Landlord with Tenant's audited financial statements for the prior year (and any
other financial statements required under Section 20.18 hereof), (ii) Landlord
decides, in its sole discretion, that the financial condition of Tenant merits
that the Required Letter of Credit Amount be so reduced and (iii) no Event of
Default shall have occurred at any time during the Term; provided, however, that
in no event shall the Required Letter of Credit Amount be less than an amount
equal to three (3) months of Base Rent.
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SECTION 1.05. TERM:
The "Term" of this Lease shall commence on the Commencement Date and shall
continue for five (5) years thereafter (provided that if the Commencement Date
is not the first day of a month, then in addition to such five (5) year period,
the Term shall include an additional number of days equal to the number of days
in the period from and including the Commencement Date to and including the last
day of the month (of the same year) on which the Commencement Date occurred),
unless sooner terminated or renewed in accordance with the provisions of this
Lease. If Tenant exercises the Renewal Option pursuant to Section 4.01(a)
hereof, the "Term" shall include the renewal period.
SECTION 1.06. TENANT'S PRO RATA SHARE:
For purposes of this Lease, Tenant's Pro Rata Share shall be the ratio of
the total rentable square footage of the Demised Premises to the total rentable
square footage of the Building. Landlord and Tenant have determined that
Tenant's Pro Rata Share is 4.103%, calculated as follows: Demised Premises of
12,807 rentable sq. ft. divided by the rental Area of Building of 312,143 sq.
ft. = 0.04103x 100 = 4.103%. This determination of Tenant's Pro Rata Share shall
be binding and conclusive on the parties, and their successors and assigns.
SECTION 1.07. RELOCATION:
At any time and from time to time during the Term, on at least thirty (30)
days prior notice to Tenant, Landlord shall have the right to move Tenant out of
the Demised Premises and relocate Tenant to other space within Connell Corporate
Center for the balance of the Term. In the event Landlord exercises this right
of relocation, Landlord shall, at its sole cost and expense, decorate the new
premises substantially similarly to the Demised Premises and shall remove,
relocate and reinstall Tenant's furniture, trade fixtures, furnishings and
equipment. Upon completion of all work in the substitute premises, Tenant shall
surrender the Demised Premises. Following the relocation, this Lease shall
continue in full force and effect; provided, however, that (a) the description
of the Demised Premises, the Building and the Real Estate, shall be deemed to be
amended to describe the new premises; and (b) the Rent shall be appropriately
modified if the square footage of the new premises is not the same as that of
the original Demised Premises.
ARTICLE II. DEFINITIONS.
SECTION 2.01. As used herein, the terms below shall have the following
meanings:
(a) "Appraisal Procedure" shall mean the following: within ten (10) days
after the expiration of the thirty (30) day period specified in Section 4.01(b)
hereof, each party shall appoint a disinterested, independent appraiser who is a
member of the American Institute of Real Estate Appraisers (or a successor
organization or, if none exists, the closest similar organization) and has at
least five years experience appraising rental properties in the Berkeley Heights
area (which shall include the Route 78 corridor from and including Exit 43 to
and including Exit 33) (an "APPRAISER"). Within twenty (20) days after their
appointment, the two Appraisers so appointed shall appoint a third Appraiser. If
no such third Appraiser is appointed within thirty (30) days after the
appointment of the two Appraisers, then either party may apply to the American
Arbitration Association ("AAA") to make such appointment, and both parties shall
be bound by such appointment. Each Appraiser appointed pursuant to the foregoing
procedure shall be instructed to determine the amount of Market Rent within
twenty (20) days after his or her appointment. Each of the three Appraisers
shall determine the value of Market Rent applying the parameters set forth in
Section 4.01(b). The values of the Market Rent determined by each of the three
Appraisers shall then be averaged, the determination which differs most from
such average shall be excluded, the remaining two values shall then be averaged,
and such average shall be the Market Rent, which shall be final and binding on
the parties. The expenses and fees of all such Appraisers shall be shared
equally between Landlord and Tenant.
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(b) "Assessed Valuation" shall mean the assessed valuation of the Real
Estate, including any added and/or omitted assessments, as determined by the
real estate tax records of the Township of Berkeley Heights.
(c) "Base Rent" shall have the meaning set forth in Section 1.03 of this
Lease.
(d) "Base Tax Rate" shall mean the real estate tax rate in effect for the
calendar year 2001.
(e) "Building" shall have the meaning set forth in Section 1.01 of this
Lease.
(f) "Building Operating Costs" shall have the meaning set forth in Section
5.03(c),(d) and (e) of this Lease.
(g) "Business Hours" shall mean, at a minimum, the Business Hours
specified in Paragraph 5 of Exhibit D to this Lease, plus any additional hours
or days hereafter designated by Landlord as Business Hours; it being understood
that Landlord reserves the right to change the days designated as "Holidays" on
such Exhibit D as provided in this Lease.
(h) The "Commencement Date" of this Lease shall be the earliest of (i) the
day on which Tenant, having completed the Tenant Work, obtains a Certificate of
Occupancy for the Demised Premises; or (ii) the day on which Tenant commences to
do business in the Demised Premises; or (iii) November 1, 2000; provided,
however, in the event (I) the Tenant Work shall not be completed by November 1,
2000 as a direct result of the failure of the Landlord to respond to plan
approval requests made by Tenant with respect to the Tenant Work within fifteen
(15) business days following Landlord's receipt of such a request or (II) the
Tenant Work shall not be completed, and a Certificate of Occupancy shall not
have been obtained, by November 1, 2000 as a direct result of the existence,
prior to the commencement of the Tenant Work, of a material latent defect in the
base Building (provided, however, that this clause (II) shall only be applicable
if Tenant shall have notified Landlord, in writing, of the existence of such
latent defect at the time of such discovery, and the parties reasonably agree
that the existence of such material latent defect is material to the completion
of the Tenant Work), then the Commencement Date shall be extended by the number
of days late (i.e., beyond the 15 business day period) Landlord's response was
to such plan approval request (or, as applicable, the number of days which the
existence of the latent defect directly contributed to such delay), but in any
such case the Commencement Date shall not be extended to a date beyond the
earlier to occur of (x) the completion of the Tenant Work (and the date a
Certificate of Occupancy for the Demised Premises is obtained) or (y) the date
on which Tenant commences to do business in the Demised Premises. Within 30 days
after the Commencement Date the parties shall execute a Commencement Date
Addendum in the form attached as Exhibit G to this Lease; provided, however,
that the failure by either party to execute such Commencement Date Addendum (i)
shall not in any way affect the date of the Commencement Date or any of the
terms of this Lease and (ii) shall not constitute a breach of this Lease.
(i) The "Common Area" shall mean, collectively, without limitation, the
hallways, entryways, stairs, cafeteria, elevators, driveway, sidewalks, parking
areas, loading areas, trash facilities, and all other areas and facilities of
the Building and the Land provided from time to time by Landlord for the general
use and convenience of Tenant with other tenants and their respective employees,
servants, invitees, licensees or other visitors.
(j) "Demised Premises" shall have the meaning set forth in Section 1.02 of
this Lease.
(k) "Expiration Date" shall be the last day of the Term. If this Lease
shall have been renewed, the Expiration Date shall be the last day of the Term
as so renewed. Notwithstanding anything otherwise to the contrary herein, if
this Lease is cancelled or terminated prior to the Expiration Date by
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reason of an Event of Default (as hereinafter defined), Tenant's liability under
the provisions of this Lease shall continue until the date the Term would have
expired had such cancellation or termination not occurred or as otherwise
provided herein.
(l) "Extra Taxes" shall have the meaning set forth in Section 5.02(b) of
this Lease.
(m) "Land" shall have the meaning set forth in Section 1.01 of this Lease.
(n) "Letter of Credit" shall have the meaning set forth in Section 1.04
hereof.
(o) "Mortgage" shall mean any mortgage, deed to secure debt, trust
indenture, deed of trust or other security document or instrument which may now
or hereafter affect, encumber or be a lien upon the Demised Premises, the
Building, the Land, and any spreading agreements, including, without limitation,
any renewals, modifications, consolidations, replacements and extensions
thereof.
(p) "Mortgagee" shall mean the holder of any Mortgage at any time.
(q) "Operating Increase Amount" shall have the meaning set forth in
Section 5.03(a) of this Lease.
(r) "Operating Year" shall mean any calendar year. The "First Operating
Year" is the calendar year 2001.
(s) "Parking Area" shall mean those portions of the Real Estate which are
designated for parking by Landlord, from time to time. Up to 10% of the parking
spaces may be designated reserved by the Landlord, it being understood that
Section 8.01(c) of this Lease sets forth the number of parking spaces designated
as reserved for Tenant. Tenant acknowledges and agrees that Landlord shall not
be responsible for the enforcement of any parking rules or regulations with
respect to any reserved parking spaces in the Parking Area.
(t) "Plans and Specifications" shall have the meaning set forth in Section
3.01 hereof.
(u) "Real Estate" shall have the meaning set forth in Section 1.01 hereof.
(v) "Real Estate Tax Base" shall mean the dollar amount of real estate tax
payable with respect to the Real Estate for calendar year 2001, determined by
multiplying the Assessed Valuation by the Base Tax Rate.
(w) "Rent" shall mean the aggregate of Base Rent, Tax Increase Amount,
Extra Taxes, Operating Increase Amount (each as defined herein) and any other
charges payable to Landlord hereunder, including utility charges.
(x) "Tax Increase Amount" shall have the meaning set forth in Section
5.02(a) of this Agreement.
(y) "Tax Year" shall mean any calendar year.
(z) "Taxes" shall mean all real estate taxes, charges and assessments
imposed upon the Real Estate. If any franchise, capital stock, capital gains,
rent, income, profit or any other tax or charge of any nature whatsoever shall
be substituted in whole or in part for the current ad valorem taxes now or
hereafter imposed upon the Real Estate due to a change in the method of taxation
or assessment,
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such franchise, capital stock, capital gains, rent, income, profit or other tax
or charge shall be deemed included as Taxes.
(aa) "Tenant's Agents" shall mean, without limitation Tenant's employees,
servants, representatives, agents, licensees, permitted subtenants and
assignees, contractors, heirs, successors, legatees, and devisees.
(bb) "Tenant's Pro Rata Share" shall have the meaning set forth in Section
1.06 of this Lease.
(cc) "Tenant Work" shall have the meaning set forth in Section 3.01 of this
Lease.
(dd) "Term" shall have the meaning set forth in Section 1.05 of this Lease.
ARTICLE III. PREPARATION OF THE DEMISED PREMISES.
SECTION 3.01. DEMISED PREMISES ACCEPTED "AS,IS"; TENANT WORK:
(a) The Demised Premises have been inspected by Tenant, and are accepted
by Tenant under lease "AS IS". Tenant shall be responsible for any design,
demolition and construction, in accordance with this Article III and Exhibits
C-1 and C-2.
(b) Tenant's proposed Plans and Specifications shall be submitted to
Landlord for approval. Within 15 business days following its receipt of such
proposed Plans and Specifications, Landlord shall respond to Tenant by approving
or requesting changes to such Plans and Specifications. Landlord's approval of
such Plans and Specifications shall not be unreasonably withheld, delayed or
conditioned. The completed interior design drawings, layouts and interior
specifications and HVAC drawings for the preparation of the Demised Premises
shall be annexed hereto and, as of the date of such annexation, made a part of
this Lease as Exhibit [C-1] and shall be referred to as the "Plans and
Specifications." The Tenant Workletter, annexed hereto as Exhibit C-2, sets
forth in detail the parties' understanding regarding building standards, Tenant
Work and certain other aspects of Tenant Work in the Building.
(c) Construction, according to the Plans and Specifications ("Tenant
Work") shall be carried out and pursued to completion with reasonable diligence
by and at the expense of Tenant and with the cooperation of Landlord, upon the
terms and conditions set forth below. Tenant may begin Tenant Work on the later
of the date hereof and the approval by Landlord of the Plans and Specifications:
(i). Landlord has furnished Tenant with a written list of
contractors which Landlord has pre-approved to perform work in the Building
(the "Pre-Approved Contractors"). Prior to commencing any Tenant Work,
Tenant shall furnish to Landlord a written list of contractors who are
proposed to perform such work, if any, who are not Pre-Approved
Contractors. All contractors (whether or not such contractors are
Pre-Approved Contractors) shall be first-class union contractors and shall
maintain current licenses with applicable governmental and/or other
enforcement authorities. Tenant shall furnish to Landlord copies of such
contractors' insurance policies (whether or not such contractors are
Pre-Approved Contractors), including workers compensation, public liability
and property damage, all in amounts and with companies acceptable to
Landlord. Landlord shall have the right to reject any such proposed
contractors who are not Pre-Approved Contractors by written notice to
Tenant within ten days of Landlord's receipt of the above information.
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(ii). Tenant shall promptly apply for all approvals and permits
legally required in connection with the performance of Tenant Work. If
necessary, Landlord shall join in the execution of the applications, and at
Tenant's request, shall cooperate with the prosecution of the application.
Tenant shall bear all fees, costs and expenses in connection with the
applications including any legal or other expenses incurred by Landlord.
Tenant shall prosecute the applications diligently and use reasonable
efforts to seek the approvals and permits applied for and shall provide
Landlord with copies of all permits and approvals upon receipt thereof.
Tenant shall advise Landlord of its progress from time to time and upon
request by Landlord.
(iii). Promptly after all requisite approvals and permits have been
granted, Tenant shall commence the performance of Tenant Work and shall
diligently prosecute Tenant Work to completion.
(iv). Tenant shall perform or cause to be performed all of Tenant
Work in accordance with the Plans and Specifications, all requirements of
regulations of any applicable public authority, and the terms and
conditions of all insurance policies and shall do so in a good and
workmanlike manner. Notwithstanding any failure by Landlord to object to
any such Tenant Work Landlord shall have no responsibility therefor.
(v). Tenant's contractors shall have access to the Demised
Premises during Business Hours and Landlord shall provide water, heating or
cooling to the extent such services are being provided to the Demised
Premises pursuant to the terms of this Lease. Tenant's contractors may have
access to the Demised Premises beyond Business Hours, and water, heating or
cooling at Tenant's request, if Tenant agrees to pay utility overtime
charges on an hourly basis as set forth in the Rules and Regulations
(defined herein).
(vi). Tenant shall provide Landlord with "as built drawings" upon
completion of Tenant Work.
(vii). If any governmental authority requires that a certificate of
occupancy be issued with respect to the Demised Premises as a result of
Tenant Work, Tenant shall apply for, obtain such certificate of occupancy
and provide a copy thereof to Landlord.
SECTION 3.02. TENANT'S EARLY ACCESS:
(a) Landlord shall permit Tenant to enter the Demised Premises before
Tenant Work is undertaken during normal Business Hours for the purposes of
inspection only.
(b) Once Landlord shall have approved the Plans and Specifications, Tenant
shall be permitted to install furniture, computers and similar items in the
Demised Premises prior to the Commencement Date. If Tenant is permitted any
access to the Demised Premises prior to the Commencement Date (including without
limitation pursuant to the preceding sentence), it shall be at Tenant's sole
risk (except to the extent caused by the gross negligence or willful misconduct
of Landlord). If Tenant's workmen begin to perform Tenant Work, the foregoing
license is conditioned upon Tenant's Agents not interfering with Landlord's
employees, agents, servants, representatives or licensees, or the workmen of any
other tenant. Landlord shall not be liable in any way for any injury, loss or
damage of any nature whatsoever occurring as a result of early access to the
Demised Premises by Tenant or any employee, agent, servant, contractor or
representative thereof, except to the extent caused by the gross negligence or
willful misconduct of Landlord. Landlord shall have the right to impose such
additional conditions on tenant's early entry as Landlord, in its reasonable
discretion, deems appropriate.
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SECTION 3.03. INSURANCE COVERING TENANT WORK:
Tenant shall not make or cause to be made any alterations, repairs or
installations, or perform Tenant Work or any other work to or on the Demised
Premises unless Tenant shall obtain, or shall require all its contractors to
obtain, and have in force during the performance of such work, public liability
and worker's compensation insurance to cover every contractor to be employed as
set forth in Section 3.01(b)(i) hereof. Such policies shall be in such amounts
and on such terms as Landlord deems appropriate; they shall be non-cancellable
without thirty (30) days' prior notice to Landlord by the insurance company. In
accordance with Section 3.01(b)(i) hereof, Tenant shall supply Landlord with
copies of the insurance policies prior to commencing any Tenant Work.
SECTION 3.04. CERTAIN LANDLORD REPRESENTATIONS; NO OTHER REPRESENTATION:
(a) Landlord represents and warrants to Tenant that, to the best of
Landlord's knowledge, (i) the base Building and the Common Areas are in
compliance with all applicable laws and regulations, including without
limitation building codes, environmental laws and the Americans with
Disabilities Act; (ii) all applicable certificates of occupancy and other
required permits with respect to the base Building and Common Areas have been
obtained and are in full force and effect; and (iii) there are no outstanding
violation notices with respect to any portion of the Building which if not
corrected would delay or prevent the issuance to Tenant of any required building
permits or certificates of occupancy or similar permits and approvals for the
Tenant Work and/or for Tenant's occupancy of the Demised Premises.
(b) Landlord has made and makes no representations, covenants or
warranties with respect to the Demised Premises, the Building or the Land,
except as expressly set forth in this Lease.
ARTICLE IV. OPTION TO RENEW.
SECTION 4.01. OPTION TO RENEW.
(a) Tenant shall have one option to renew this Lease (a "Renewal Option")
on the same terms and conditions and in the manner set forth below, for a term
of FIVE (5) years, provided that there has been no Event of Default (or event or
condition which, with the passage of time or giving of notice, or both, would
constitute an Event of Default) that has occurred and is continuing at the time
of exercise of the option and that there have not been repeated recurring Events
of Default (whether or not previously cured) during the Term. In the event
Tenant desires to elect the Renewal Option, Tenant shall give Landlord written
notice of its exercise of the Renewal Option NINE (9) months prior to the
Expiration Date of the Term. If Tenant fails to timely notify Landlord of its
exercise of the Renewal Option, then the Renewal Option shall expire.
(b) Base Rent during the renewal term shall equal the prevailing market
rental rate for office space of comparable quality, design and location in the
Berkeley Heights area (which shall include the Route 78 corridor from and
including Exit 43 to and including Exit 33) for tenants occupying an amount of
space comparable to the amount then leased by Tenant, taking into consideration
any concessions (e.g., rent abatement, tenant improvement and other allowances;
it being understood for purposes of clarification that Landlord shall have no
obligation to provide Tenant with any tenant improvement allowance) then being
offered by landlords to prospective tenants for comparable space ("Market
Rent"), but in no case less than the then existing Base Rent. The parties shall
negotiate in good faith to establish the Market Rent. If the parties are unable
to agree on Market Rent within thirty (30) days after Tenant gives Landlord its
notice exercising the Renewal Option (the "NOTICE DATE"), then the Appraisal
Procedure (as defined in Section 2.01) shall be utilized.
ARTICLE V. RENT.
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SECTION 5.01. BASE RENT:
Tenant shall pay Base Rent to Landlord, in the amount set forth in Section
1.03, without notice or demand, in equal monthly installments in advance
beginning on the Commencement Date. Each subsequent installment shall be due to
and received by the Landlord on or before the first day of each month during the
Term. Notwithstanding the foregoing, in the event the Commencement Date is not
the first day of the month, on the Commencement Date Tenant shall pay Landlord
an amount equal to $924.56 (consisting of $877.19 for Base Rent and $47.37 for
electric) for each day of such first "partial" month of the Term.
SECTION 5.02. TAX INCREASE AMOUNT:
(a) In addition to Base Rent and all other charges Tenant is required to
pay hereunder, Tenant shall pay the Tax Increase Amount (as hereinafter defined)
to Landlord as follows:
(i) If the Taxes for any Tax Year during the Term of this Lease
shall be greater than the Real Estate Tax Base, then Tenant shall pay to
Landlord, as a component of Rent and as provided in Section 5.02(a)(ii)
below, the amount (the "Tax Increase Amount") determined by multiplying the
difference between the Taxes for the applicable Tax Year and the Real
Estate Tax Base by Tenant's Pro Rata Share. If the Taxes for any Tax Year
during the Term of this Lease shall be less than the Real Estate Tax Base,
then Landlord shall refund to Tenant as provided in Section 5.02(a)(ii)
below, the amount (the "Tax Decrease Amount") determined by multiplying the
difference between the Real Estate Tax Base and the Taxes for the
applicable Tax Year by Tenant's Pro Rata Share.
(ii) Within one hundred and eighty (180) days after the
commencement of each Tax Year after and including the year in which the
Assessed Valuation has been established, or as soon as practicable
thereafter, Landlord shall submit to Tenant a copy of the bill(s) for the
Taxes for such Tax Year and a statement (the "Tax Statement"), which shall
indicate: (i) any annual increase (or decrease) in the Taxes, (ii) the
effective date of such increase (or decrease), (iii) the Tax Increase
Amount due, if any, (iv) the Tax Decrease Amount, if any, to be refunded
and (v) any Extra Taxes due as set forth below. Tenant shall pay the Tax
Increase Amount to Landlord within thirty (30) days after the issuance of
the Tax Statement. Landlord shall pay the Tax Decrease Amount to Tenant
within thirty (30) days after the issuance of the Tax Statement. Any Tax
Increase Amount or Tax Decrease Amount for a period of less than a full Tax
Year shall be ratably apportioned.
(b) Tenant shall be liable for any portion of the Taxes, charges and
assessments imposed upon the Real Estate during the Term of this Lease which are
attributable to extraordinary improvements in the Demised Premises or the
Building constructed at Tenant's expense or for Tenant's specific benefit and
for which the taxing authority has assigned a distinguishable increase in
valuation in computing the Assessed Valuation ("Extra Taxes"). Tenant shall pay
to Landlord such Extra Taxes within thirty (30) days after issuance of the Tax
Statement as set forth above. Any Extra Taxes due for a period of less than a
full year shall be ratably apportioned. Tenant shall not be liable for any Extra
Taxes attributable to the improvements of any other Tenant.
(c) Tenant's obligations for payment of Tax Increase Amount or Extra Taxes
during the Term shall survive the expiration or early termination of this Lease.
SECTION 5.03. BUILDING OPERATING COSTS; ADJUSTMENTS:
(a) Tenant hereby agrees that for each Operating Year during the Term of
this Lease for which the Building Operating Costs (as hereinafter defined)
budgeted for such Operating Year exceeds the Building Operating Costs for the
First Operating Year, Tenant shall pay to Landlord as a
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component of Rent and in the manner further provided in this Section 5.03, an
amount (the "Operating Increase Amount") determined by multiplying the
difference between the budgeted Building Operating Costs for the applicable
Operating Year and the Building Operating Costs in the First Operating Year by
Tenant's Pro Rata Share. Within one hundred and eighty (180) days after the
commencement of each Operating Year, or as soon as practicable thereafter,
except for the First Operating Year, Landlord shall present to Tenant a
statement (the "Operating Statement") showing, INTER ALIA, the Operating
Increase Amount, if any, due hereunder (the date upon which the Operating
Statement is presented to Tenant being hereinafter referred to as the "Billing
Date"). Tenant shall pay the Operating Increase Amount no less frequently than
monthly in advance in an amount determined by multiplying the Operating Increase
Amount for the applicable Operating Year by one-twelfth (1/12). These monthly
payments of the Operating Increase Amount shall be added to and paid
simultaneously with the Base Rent. If the total of such monthly payments made by
Tenant during any Operating Year is less than the Operating Increase Amount, as
shown on the next Operating Statement presented to Tenant, Tenant shall pay the
difference to Landlord within thirty (30) days after the Billing Date. If the
total of such monthly payments made by Tenant during any year is greater than
the Operating Increase Amount, as shown on the next Operating Statement
presented to Tenant, Landlord shall refund the excess amount to Tenant within
thirty (30) days after the Billing Date. Each Operating Statement shall indicate
(i) the Operating Increase Amount for the current year; (ii) the difference
between the actual dollar amount of Building Operating Costs and the budgeted
Building Operating Costs for the preceding Operating Year; (iii) the total of
the monthly payments made by Tenant hereunder for the account of the preceding
Operating Year, if applicable; and (iv) the amount of any overpayment or
underpayment by Tenant on account of the Operating Increase Amount for the
preceding year.
(b) If Tenant disputes the amount or characterization of any item
contained in the Operating Statement by giving written notice thereof to
Landlord within sixty (60) days of the Billing Date, Tenant shall have the right
to designate a firm of independent certified public accountants to audit
Landlord's records upon which the Operating Statement is based, provided Tenant
first pays all sums due as shown on the Operating Statement first. Such audit
shall be conducted promptly after Tenant's notice of dispute is given to
Landlord. The fee for any audit conducted on Tenant's behalf shall be borne
solely by Tenant (subject to the penultimate sentence of this Section 5.03(b)).
Landlord shall have the right, at its sole expense (subject to the last sentence
of this Section 5.03(b)), to have Tenant's audit reviewed by a mutually agreed
upon third party nationally recognized certified public accountant, whose
determination shall be conclusive and binding on both Landlord and Tenant. If,
as a result of Tenant's inspection of Landlord's books or the audit of
Landlord's records and review by independent certified public accountants, an
error is discovered in the Operating Statement, Landlord shall revise the
Operating Statement accordingly and any overpayment by Tenant shall be refunded
by Landlord to Tenant forthwith and any underpayment shall be paid by Tenant on
demand. Any audit and subsequent adjustment in payment shall be deemed to be
conclusive of settlement of the dispute. If Tenant does not notify Landlord of a
dispute within sixty (60) days of receipt of any Operating Statement, Tenant
shall be deemed to have accepted such Operating Statement. Landlord's records
and any information provided by Landlord to auditors pursuant to this Section
5.03(b) shall be and remain confidential and shall not be made available by the
auditors or Tenant to any other person or entity, except to persons or entities
named in subpoena or other legal process, but only such portion of such
information that, in the reasonable opinion of Tenant's counsel, is required to
be disclosed in response to such process; provided, however, that Tenant shall,
before making the disclosure, promptly inform Landlord of Tenant's receipt of
any such subpoena or other process so as to afford Landlord the opportunity to
seek a protective order if it so desires. If the final audit discloses an error
in Landlord's determination of the Building Operating Costs in excess of five
percent (5%) in Landlord's favor, then all costs of the audits shall be borne by
Landlord. If the final audit discloses that Landlord's determination of the
Building Operating Costs was not in error in excess of two percent (2%) in
Landlord's favor, then all costs of the audits shall be borne by Tenant.
(c) The "Building Operating Costs" shall include each and every expense
incurred in connection with the ownership, administration, management,
operation, insurance, maintenance and repair of the Real Estate, or reasonably
charged by Landlord if Landlord performs management services in connection with
the Real Estate, including management, consulting, reasonable legal and
accounting
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fees, and, further, including but not limited to, wages, salaries and fees paid
to persons either employed by Landlord or engaged as independent contractors in
performing or managing the services related to the Real Estate, and such other
typical items of expense as indicated in Subsection (d) below. If any person or
independent contractor is employed with respect to more properties than the Real
Estate, the wages, salaries or fees paid therefor shall be allocated based on
time spent by such person or Contractor on matters relating to the Real Estate
(excluding time spent on items which are not Building Operating Costs) or the
degree of responsibility for the Real Estate compared to the other properties
involved.
(d) Some of the typical items of expense which comprise or may comprise
the Building Operating Costs are or may be the following, but only to the extent
that they relate solely or are properly allocated to the Real Estate:
(i) Repairs and maintenance;
(ii) Utility costs, including but not limited to the cost of
electricity to power HVAC units and to heat and light the Common Area;
(iii) Cleaning costs, including but not limited to windows, tenant
premises and Common Areas;
(iv) Service contracts including but not limited to elevator,
HVAC, janitorial and window cleaning, rubbish removal, exterminating and
towel service;
(v) Costs of landscaping and snow removal;
(vi) Cost of redecorating Common Area;
(vii) Wages, salaries and other compensation, including taxes,
insurance, retirement, fringe benefits, uniforms payable to employees
performing services related to the Real Estate;
(viii) Reasonable fees and other compensation payable to
independent contractors or other agents of Landlord performing services
related to the Real Estate;
(ix) Cost of Landlord's insurance, including but not limited to,
fire and extended coverage, public liability and property, rental value
insurance (including Base Rent, estimated Tax Increase Amount and estimated
Operating Increase Amount), elevator, worker's compensation, boiler and
machinery insurance;
(x) Reasonable auditing, accounting, attorneys' and consultants'
fees and disbursements incurred in connection with the maintenance and
operation of the Real Estate;
(xi) A reasonable management fee to compensate Landlord for
management services, if Landlord, its employees, agents or servants,
perform same, or reasonable and customary fees for management services
provided by an independent management company;
(xii) Any other expenses of any kind whatsoever reasonably
incurred in managing, operating, maintaining and repairing the Real Estate;
(xiii) The cost, if any, of non-Tenant area capital improvements
installed by Landlord after the completion of the Building as amortized
over the useful life of such improvements, with that portion of the cost
attributable to any Operating Year to be
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included in the Building Operating Costs for that Operating Year to the
extent such capital improvements are reasonably expected to reduce Building
Operating Costs or are required by a governmental authority under laws or
regulations adopted after the Commencement Date; and
(xiv) The costs, charges and expenses, if any, incurred by
Landlord in connection with any change of any company providing electric
service to the Real Estate, including, without limitation, maintenance,
repair, installation, and service costs associated therewith.
(e) The term "Building Operating Costs" shall not include or be deemed or
construed to include:
(i) Costs incurred in connection with the construction of
the Building or the initial development of the Real Estate;
(ii) Costs for which Landlord is reimbursed by its insurer,
any tenant's insurer or any tenant;
(iii) Costs attributable to leasing of tenant spaces and to
resolving disputes with tenants, and costs of improvements to the
premises of other tenants in the Building;
(iv) Costs, expenses or expenditures relating to the duties,
liabilities or obligations of other tenants in the Building;
(v) Interest, principal or other payments on mortgages or
other debt costs, if any;
(vi) Depreciation on the Building;
(vii) Taxes;
(viii) Leasing commissions;
(ix) Costs which are paid directly by any tenant;
(x) Wages, bonuses and other compensation of employees of
Landlord above the grade of property manager;
(xi) Costs of acquiring and installing artwork; and
(xii) Any cost representing an amount paid to a person, firm,
corporation or other entity related to Landlord that is in excess of
the amount which would have been paid in the absence of such
relationship;
(f) Landlord and Tenant agree that with respect to all Building Operating
Costs, the actual costs thereof for the First Operating Year and for each
Operating Year thereafter shall be adjusted to reflect all Building Operating
Costs for a full year. Landlord and Tenant further agree that in the event
occupancy in the Building during the First Operating Year or any Operating Year
thereafter is less than ninety five percent (95%), then Building Operating Costs
for the First Operating Year or any other Operating Year, as applicable, shall
be "grossed up" to the amount of Building Operating Costs that, using Landlord's
reasonable projections, would normally be expected to be incurred during the
First
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Operating Year or other Operating Year, as applicable, if the Building
were ninety five percent (95%) occupied during such First Operating Year or
other Operating Year.
(g) Tenant's obligations for payment of Building Operating Costs during
the Term shall survive the expiration or early termination of this Lease for
costs incurred during the Term.
(h) The amounts due with respect to any Operating Year pursuant to
Sections 5.02 and 5.03 of this Lease shall be aggregated or netted, as
applicable, so that only one payment is made, if any, with respect to such
amounts.
SECTION 5.04. PAYMENT OF RENT:
(a) Rent shall be paid without notice, demand, counterclaim, offset,
deduction, defense, or, except as expressly provided herein, abatement.
(b) All Rent payable under this Lease shall be payable to Landlord in
currency of the United States of America at its address as set forth in Section
20.04 or at such other address as Landlord shall designate by giving notice to
Tenant.
(c) If Tenant shall fail to pay any Tax Increase Amount, Operating
Increase Amount, Extra Taxes, or any other charges payable hereunder, whether or
not the same are called Rent, Landlord shall have all remedies provided for in
the Lease or at law as in the case of nonpayment of Base Rent. Tenant's
obligations (accruing during the Term) under Article V and Article XXI hereof
shall survive the expiration or earlier termination of this Lease.
ARTICLE VI. SIGNS
SECTION 6.01. DIRECTORY:
Landlord shall provide a directory of tenants in the first and second floor
lobby areas of the Building.
SECTION 6.02. SIGNS:
(a) Tenant shall have no right to install and maintain a sign on the
entrance doorway of the Demised Premises without Landlord's prior written
consent which shall not be unreasonably withheld or delayed. Landlord may permit
Tenant to identify its business name by lettering on the exterior of the Demised
Premises with Landlord's prior written consent as to dimensions, material,
content, location and design.
(b) Tenant shall obtain and pay for all required permits and licenses
relating to such sign, if same are required. Copies of all such permits and
licenses shall be delivered to Landlord within a reasonable time after they are
issued.
(c) Tenant shall not have the right to install or maintain any signs in or
at the Real Estate or visible from the outside of the Demised Premises.
(d) Landlord shall have the right to remove any sign in order to paint, or
to make repairs, alterations or improvements in or upon the Building or Demised
Premises, at its expense. At the expiration of the Term, Tenant shall, at
Tenant's sole cost and expense, remove all signs and restore the area in which
they were affixed to its prior condition.
ARTICLE VII. REPAIRS, ALTERATIONS, COMPLIANCE, SURRENDER.
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SECTION 7.01. REPAIRS BY LANDLORD:
Landlord shall make or cause to be made necessary repairs to, and maintain,
the Common Area, the Building (other than the Demised Premises, except as
expressly provided below in this Section 7.01) and the Land in a Class A manner
(comparable to that of other similar Class A office buildings in the Berkeley
Heights area, which shall include the Route 78 corridor from and including Exit
43 to and including Exit 33), including, without limitation, that Landlord shall
make or cause to be made necessary repairs to the roof of the Building and
structural repairs to the foundation, exterior walls, floors, windows,
electrical, plumbing and mechanical systems of the Building, and any
load-bearing interior walls of the Demised Premises except for any damage to the
Building or Real Estate caused by (a) any act, omission or negligence of Tenant,
Tenant's agents or invitees; (b) the failure of Tenant to perform or comply with
any terms, conditions or covenants in this Lease; or (c) any alterations,
installations, additions or improvements made or to be made by Tenant. Damage
set forth in (a), (b) and (c) will be repaired by Landlord at Tenant's expense.
SECTION 7.02. REPAIRS, MAINTENANCE AND IMPROVEMENTS BY TENANT:
(a) Tenant shall maintain and take good care of the Demised Premises.
Tenant, at its expense, shall promptly make all repairs in and about the Demised
Premises as shall be required by reason of (i) the performance or existence of
Tenant Work performed or to be performed by Tenant, (ii) the installation, use
or operation of Tenant's property in the Demised Premises, (iii) the moving of
Tenant's property in or out of the Building or (iv) the misuse or neglect of
Tenant or any of its employees, agents or contractors. Except for repairs
Landlord is specifically obligated to make, Tenant, at its expense, shall be
responsible for all repairs, maintenance and replacements within the Demised
Premises, ordinary wear and tear excepted. Notwithstanding the foregoing,
Landlord shall make all repairs required by the occurrence of fire and other
casualty as more particularly set forth in Section 12.03 hereof; provided,
however, that Tenant shall be responsible for the repair and restoration of
Tenant's improvements to the Demised Premises. Tenant shall notify Landlord in
advance of all repairs to be made by Tenant exceeding an amount equal to $0.50
per rentable square feet of the Demised Premises in cost. Tenant shall not
remove blinds from windows. In making repairs, Tenant shall observe and comply
with all requirements, laws or regulations of any applicable public authority
and the terms and conditions of all insurance policies required by Article XIV
relating to or affecting the Real Estate.
(b) Tenant shall be responsible and liable for all damages to the Demised
Premises the Building or the Land or any part thereof attributable to the fault,
negligence, or misuse of Tenant, its agents, employees, servants, contractors,
representatives, guests or invitees.
SECTION 7.03. APPROVAL BY LANDLORD OF IMPROVEMENTS:
Tenant may not make, repairs, alterations, additions or improvements to the
Demised Premises, or any part thereof, without the prior written consent of
Landlord (which consent shall not be unreasonably withheld, denied or
conditioned, but which may, for purposes of clarification, be conditioned on
Tenant removing the same at the expiration of the Lease and restoring that
portion of the Demised Premises affected by the repairs, alterations, additions
and improvements, and the removal thereof, to the condition prior to any such
repairs, alterations, additions or improvements and otherwise in the condition
required under this Lease), if the reasonable cost of the specific alteration,
addition or improvement (any such alterations, additions and improvements being
aggregated for purposes of this calculation if made as part of the same general
plan) is estimated to exceed an amount equal to $0.50 per rentable square feet
of the Demised Premises; it being understood that the provisions of Article III
hereof shall govern the Tenant Work. Any permitted alterations shall be
performed in a good and workmanlike manner in accordance with all requirements
of any applicable governmental authority, the terms and conditions of all
required insurance policies and any other provisions relating to Tenant Work
herein contained. In no event shall Tenant make any alterations of the outside
dimensions of the Building or the existing load-bearing walls and columns,
exterior walls, roof, structural ceiling or foundations.
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Notwithstanding anything contained in this Section 7.03, if the repairs,
alterations, additions or improvements involve an Atypical Alteration (as
defined below), Landlord reserves the right to require Tenant (by the end of the
Term) to restore that portion of the Demised Premises affected by the repairs,
alterations, additions and improvements, and the removal thereof, to the
condition prior to any such repairs, alterations, additions or improvements and
otherwise in the condition required under this Lease. An "Atypical Alteration"
means, collectively, any alterations, additions or improvements to the Demised
Premises which are not typical alterations, additions or improvements found in
similar, Class A office buildings occupied by more than one tenant, including by
way of illustration only and not of limitation, (i) any wet laboratories
installed by Tenant or (ii) anything which could materially adversely affect the
Robertson underfloor duct system installed in the Building.
SECTION 7.04. EMERGENCY REPAIRS:
If, in an emergency, it shall become necessary to make any repairs or
replacements otherwise required to be made by Tenant, Landlord may enter the
Demised Premises, and proceed to make or cause such repairs or replacements to
be made at Tenant's expense. Landlord shall give Tenant telephone notice of such
emergency. Within thirty (30) days after Landlord renders a bill for such
repairs or replacements, Tenant shall reimburse Landlord for the cost of making
such repairs. Landlord's access and entry into the Demised Premises shall, to
the extent practicable under the circumstances, be conducted in a manner which
shall not unreasonably disrupt or unreasonably interfere with Tenant's use and
conduct of business within the Demised Premises.
SECTION 7.05. ELECTRICAL LINES
(a) Tenant may not install any electrical equipment that overloads the
lines in the Demised Premises, the Building or the Real Estate or which will
interfere with the use thereof by other tenants of the Building unless Landlord
approves same in the Plans and Specifications or as provided for in Section 7.03
above. If Tenant makes such installation, Landlord may require Tenant, at
Tenant's sole cost and expense, to make whatever alterations and/or repairs are
necessary and which are in compliance with the terms and conditions of all
required insurance policies and all requirements of applicable governmental
authorities. Tenant shall be responsible or liable for all damages anywhere in
the Building or with respect to the Real Estate caused by any electrical
overload attributable to Tenant.
(b) At all times, Tenant shall provide access for Landlord to trench
headers provided that Landlord's work shall not prevent the conduct of Tenant's
business and shall be conducted at such times and in a manner so as to minimize
disruption of Tenant's operations.
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SECTION 7.06. SURRENDER OF PREMISES.
On the Expiration Date, Tenant shall quit and surrender the Demised
Premises together with all alterations, fixtures (except trade fixtures, it
being understood that, if Tenant removes trade fixtures, Tenant shall exercise
reasonable care in doing so, and the Demised Premises shall be restored to the
condition it was in prior to the installation of the trade fixtures, reasonable
wear and tear excepted), installations, additions and improvements which may
have been made in, annexed or otherwise attached thereto, broom clean, and in
good condition and repair, ordinary wear and tear excepted, and except for
damage by fire or other casualty which Landlord is required to repair hereunder,
unless Landlord provides otherwise in writing. Any personal property of Tenant,
or any subtenant or occupant, which shall remain in or on the Demised Premises
after the termination of this Lease and the removal of such Tenant, subtenant or
occupant from the Demised Premises, may, at the option of Landlord and without
notice, be deemed to have been abandoned by such Tenant, subtenant occupant, and
may either be retained by Landlord as its property or be disposed of, without
accountability, in such manner as Landlord may see fit. Tenant shall reimburse
Landlord for any cost or expense incurred by Landlord in carrying out the
foregoing which obligation shall survive the Expiration Date. Landlord shall not
be responsible for any loss or damage occurring to any such property owned by
Tenant or any subtenant or occupant.
ARTICLE VIII. SERVICES AND UTILITIES
SECTION 8.01. LANDLORD'S SERVICES:
(a) Landlord shall furnish: (i) during Business Hours, heat and air
conditioning required for the occupancy of the Demised Premises and the
electricity to power same; (ii) twenty-four (24) hours per day, seven (7) days
per week access and elevator service including one weekend elevator; (iii)
restroom supplies; (iv) cleaning services as set forth in the "Building
Janitorial Specifications" (hereinafter so called), annexed hereto as Exhibit E,
on weekdays, excluding Holidays and weekends, (v) a cafeteria serving breakfast
and lunch, and (vi) such other services as Landlord may set forth from time to
time. Landlord shall have the right to reasonably modify the terms and/or
frequency of the services so long as Landlord gives at least five (5) days'
notice of any changes.
(b) Tenant shall have the right to use the Demised Premises beyond
Business Hours and on weekends and Holidays upon the express condition that
Tenant shall be responsible, at its sole cost and expense, for any and all
building services required and attributable to such excess use charged at the
rates set forth in Landlord's Rules and Regulations; provided, however, that
notwithstanding anything contained in the Rules and Regulations or the
definition of Building Hours, in the event Landlord changes the Rules and
Regulations pursuant to this Lease so that more than eight (8) Holidays exist
(such additional Holidays being referred to as "Excess Holidays"), Tenant shall
not be charged for any excess use of building services during the period between
8:00 a.m. and 6:00 p.m. on any Excess Holiday unless Tenant is also treating the
Excess Holiday(s) as a business holiday. Payment for excess use of services
shall be deemed Rent and shall be paid to Landlord monthly, together with Base
Rent.
(c) Landlord shall maintain and provide services for the Land and Common
Area, including lobbies, stairs, elevators, corridors, restrooms, and Parking
Area. Access to parking in the Parking Area shall be granted 4 cars per each
1,000 rentable square feet (i.e., 51 cars for 12,807 rentable square feet). Of
that amount, Landlord will designate 5 spaces as "reserved" for Tenant. Attached
as Exhibit H are the designated locations for Tenant's "reserved" parking
spaces.
(d) Landlord shall not be liable for any losses or damages caused by
interruption of services due to repair, inspection or causes beyond its
reasonable control. Tenant shall continue to be responsible for payment of Rent
during any period of such interruption. Landlord shall use its best efforts to
restore services after interruption. Notwithstanding the foregoing, if the
Demised Premises is rendered totally untenantable for five (5) consecutive
business days due to an interruption of services, the
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Rent shall be abated during the period of such interruption of services unless
such interruption was caused by (i) Tenant, or (ii) by circumstances beyond
Landlord's reasonable control.
(e) Landlord shall maintain a security guard situated in the Building
and/or another building within Connell Corporate Center servicing the Building,
twenty-four (24) hours per day, seven (7) days per week.
SECTION 8.02. ELECTRICITY:
(a) Landlord shall furnish the electricity Tenant shall require in the
Demised Premises for heating and air conditioning during Business Hours at no
extra cost (subject to adjustments under Section 5.03 or otherwise provided
herein). Tenant shall pay to Landlord, as a component of Rent, the sum of One
Dollar and Thirty-Five Cents ($1.35)/rentable sq. ft./yr. in advance on a
monthly basis together with Base Rent. This sum shall represent the cost of all
electricity furnished to Tenant at the Demised Premises during Business Hours,
other than for heating and air-conditioning, based on 5.5 watts/useable sq. ft.
(b) If the Plans and Specifications submitted in connection with the
Tenant Work or any alterations or improvements undertaken by Tenant during the
Term anticipate extra electric usage based on either substantially greater needs
than 5.5 watts/useable sq. ft. or regular usage beyond the Building Business
Hours, the amount charged to Tenant as set forth in paragraph (a) above shall be
adjusted to reflect such additional usage.
(c) The amount payable by Tenant as set forth in paragraph (a) above may
be adjusted when the rate charged Landlord by the local electric company is
modified between the execution of this Lease and the Commencement Date and
further adjusted from time to time to the reflect changes in the rate charged
Landlord subsequent to the Commencement Date.
(d) Subsequent to Tenant's having taken occupancy and commenced use of the
Demised Premises, Landlord or Tenant may cause a survey to be made by an
independent electrical engineer or other qualified person of the estimated use
of electricity on the Demised Premises (other than for heat and air
conditioning). The $1.35/rentable sq. ft./yr. charge set forth in paragraph (a)
above shall be adjusted not more frequently than annually to reflect the outcome
of this survey. The cost of preparing the survey shall be included in Building
Operating Costs if undertaken by Landlord. Tenant shall pay for the survey if it
undertakes to cause same to be made.
(e) If Landlord requests or if Tenant elects to do so, Tenant shall
install an electric meter to measure the electricity actually consumed on the
Demised Premises at any time, provided the local electric utility company so
permits. Tenant shall arrange with the utility company for such installation,
which shall be at Tenant's expense. Tenant shall pay for its electrical usage
based on metering to Landlord on a monthly basis together with Base Rent, at the
rate applicable to Landlord, in lieu of the charge set forth in paragraph (a)
above.
(f) Landlord currently uses a certain utility company to provide
electricity service for the Real Estate (the "Current Electric Service
Provider"). Notwithstanding the foregoing, if permitted by applicable law,
Landlord shall have the right at any time and from time to time during the Term
of this Lease to either contract for services from a different company or
companies providing electricity service (each such company being referred to as
an "Alternate Service Provider") or continue to contract for service from the
Current Electric Service Provider. Tenant shall cooperate with Landlord, the
Current Electric Service Provider, and any Alternate Service Provider at all
times and, as reasonably necessary, shall allow Landlord, the Current Electric
Service Provider and any Alternate Service Provider reasonable access to the
Building's electric lines, feeders, risers, wiring, and any other machinery
within the Demised Premises.
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ARTICLE IX. USE AND OPERATION
SECTION 9.01. USE:
Tenant shall use the Demised Premises for general offices and for no other
purpose (it being agreed that Tenant may install microwave and toaster ovens
(for the heating of food), refrigerators and vending machines in employee break
areas within the Demised Premises). Tenant shall comply with all applicable
zoning regulations or requirements and all other laws, rules, regulations and
ordinances of any governmental entity having jurisdiction over the Real Estate
(including, without limitation, Environmental Laws and regulations), as well as
all the requirements set forth in Article XXI.
SECTION 9.02. RULES AND REGULATIONS ESTABLISHED BY LANDLORD:
The rules and regulations of the Landlord in effect as of this date are set
forth in Exhibit D annexed hereto. Tenant shall observe all such rules and
regulations, and all other rules and regulations established by Landlord from
time to time for the Building and the Real Estate (collectively, the "Rules and
Regulations"). Tenant shall be given at least five (5) days' notice of any
changes therein. In the event of any conflict between the terms of this Lease
and the Rules and Regulations (or any other Exhibit attached hereto), this Lease
shall control. The Rules and Regulations shall be of uniform application to
substantially all tenants of the Building, and shall not be enforced against
Tenant in a discriminatory manner.
SECTION 9.03. RESTRICTION ON TENANT'S ACTIVITIES
(a) GARBAGE:
(i) Tenant shall handle and dispose of all rubbish and garbage
in accordance with the Rules and Regulations established by Landlord.
(ii) Landlord shall provide rubbish and garbage removal in
accordance with the cleaning specifications incorporated as part of
Exhibit E.
(iii) Tenant shall arrange for the prompt removal of any rubbish
and garbage in excess of the quantity to be disposed of by Landlord
pursuant to the cleaning specifications set forth in Exhibit E at
Tenant's sole expense.
(b) PLUMBING FACILITY USE: Tenant shall not use the plumbing facilities of
the Demised Premises or the Building for any purpose other than those for which
they are intended. Tenant may not dispose of any substances therein which may
clog, erode or damage the pipelines and conduits of the Demised Premises, the
Building or the Land.
(c) FLOOR LOAD: Tenant shall not install, operate of maintain in the
Demised Premises any heavy item of equipment which exceeds the floor load of one
hundred (100) pounds per square foot without Landlord's written consent.
(d) EXTERIOR WALLS OR ROOF: Tenant shall not use all or any portion of the
roof or exterior walls of the Demised Premises or the Building for any purpose.
SECTION 9.04. ILLEGAL PURPOSES:
Tenant shall not use or permit the use of the Demised Premises for any
illegal trade, manufacture, or other business, or for any other illegal purpose.
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ARTICLE X. TRANSFER OF INTEREST; PRIORITY OF LIEN.
SECTION 10.01. ASSIGNMENT, SUBLETTING, ETC.:
(a) Tenant may sublet the Demised Premises or assign this Lease to (i) its
parent corporation or any affiliate or subsidiary of Tenant or (ii) any
successor of Tenant by merger or consolidation or the purchaser of all or
substantially all of Tenant's assets, in each case without Landlord's consent so
long as Tenant continues to be primarily liable and responsible for the
performance of all obligations under this Lease.
(b) Except as expressly set forth in Section 10.01(a), Tenant shall not
sublet the Demised Premises or any part thereof, nor assign, transfer, mortgage
or hypothecate, or otherwise encumber this Lease or any interest therein, nor
grant concessions or licenses for the occupancy of the Demised Premises or any
part thereof to any unaffiliated company without Landlord's prior written
consent (which consent shall not be unreasonably withheld, conditioned or
delayed), and any unauthorized subletting, assignment, transfer or other similar
such action shall be deemed null and void and of no effect. Upon the return of
the Demised Premises, all terms and conditions of this Lease shall be null and
void, except for those provisions of the Lease which shall survive the
Expiration Date, as herein provided. Any subtenancy arrangement without limiting
the foregoing, shall be pursuant to a written agreement in form and substance
reasonably satisfactory to the Landlord containing terms not inconsistent with
the terms of this Lease.
(c) Without limiting the foregoing, Landlord may, in its sole
determination, withhold approval to a transfer, assignment or subletting under
Paragraph (b) above, under the following conditions:
(i) The financial condition of the subtenant or other user is
unsatisfactory.
(ii) The proposed use of the Demised Premises by the subtenant
or other user would be prejudicial to the safety, character, or reputation of
the Building and its tenants or contrary to any zoning ordinance or law, rule,
regulatory or ordinance promulgated by any governmental authority.
(iii) The subtenant's or other user's occupancy of the Demised
Premises will cause excessive demands on the Real Estate.
(iv) Less than 90% of the rentable area of the Building is
rented.
(d) Tenant shall remain primarily liable for all obligations of this Lease
in the event it sublets or assigns all or any portion of the Demised Premises.
(e) A subtenant or assignee shall not have the rights to renewal of the
Lease of the Demised Premises provided herein.
(f) Any Excess Assignment Consideration (as defined below) or Excess
Sublease Rentals (as defined below) in connection with an assignment or sublease
permitted under this Lease shall be shared equally between Tenant and Landlord.
For purposes of this Section 10.01(f), (i) "Excess Assignment Consideration"
shall mean all consideration paid or to be paid by the assignee of Tenant to
Tenant after deducting (A) actual out-of-pocket expenses incurred by Tenant in
connection with such assignment (including but not limited to third party
leasing commissions, concessions, outside attorneys' fees and tenant
improvements), (B) the then remaining unamortized portion of the cost of the
Tenant Work, amortized on a straight-line basis over the term of this lease, and
(C) any consideration paid to Tenant by the assignee for Tenant's furniture and
equipment in the
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Demised Premises (but no more than the fair market value of such furniture and
equipment) and (ii) "Excess Sublease Rentals" shall mean all consideration paid
or to be paid by the sublessee of Tenant in excess of all Rent paid or to be
paid by the Tenant for the Demised Premises subleased for the same period, after
deducting (A) actual out-of-pocket expenses incurred by Tenant in connection
with such sublease (including but not limited to third party leasing
commissions, concessions, outside attorneys' fees and tenant improvements), (B)
the then remaining unamortized portion of the cost of the Tenant Work, amortized
on a straight-line basis over the term of this lease, and (C) any consideration
paid to Tenant by the subleasee for Tenant's Furniture and equipment in the
Demised Premises (but not more than the fair market value of such furniture and
equipment); it being understood that if only a portion of the Demised Premised
are sublet, then only the portion of the space so sublet shall be taken into
account for purposes of such calculation.
SECTION 10.02. SUBORDINATION:
(a) Subject to Section 10.02(b) hereof, at Landlord's election, this Lease
shall be subordinate or superior to the lien of any present or future mortgage
irrespective of the time of recording of such mortgage. Landlord may exercise
such election by giving notice thereof to Tenant. At the election of Landlord,
this clause shall be self-operative and no further instrument shall be required.
Upon Landlord's request, at any time and from time to time (provided that the
Mortgagee shall have executed the agreement referenced in Section 10.02(b)
hereof), Tenant shall (a) confirm in writing and in recordable form that this
Lease is so subordinate or so paramount to the lien of any mortgage and/or (b)
execute an instrument making this Lease so subordinate or so paramount (as
Landlord may elect) to the lien of any mortgage, in such form as may be required
by an applicable mortgagee. The exercise of any of the elections provided in
this Section shall not exhaust Landlord's right to elect differently thereafter,
from time to time.
(b) Landlord shall obtain from any Mortgagee a non-disturbance agreement
in favor of the Tenant which recognizes this Lease and agrees not to disturb
Tenant's possession of the Demised Premises as provided in this Lease, in each
case for so long as the Tenant is not in default under this Lease, and provided
the Tenant agrees to attorn to the said Mortgagee in the event it comes into
possession of the premises.
(c) Landlord shall endeavor to obtain the following provisions in any such
non-disturbance agreement: (i) such mortgagee or ground lessor shall honor this
Lease in accordance with its terms; (ii) such mortgagee or ground lessor shall
not name Tenant in any foreclosure proceedings; and (iii) such mortgagee or
ground lessor shall cause Landlord's obligations under this Lease to be
performed from and after the date of any foreclosure, purchase or transfer.
(d) Landlord shall have the right to assign Tenant's Rent payments to any
Mortgagee. Upon prior written notice from Landlord, Tenant shall make payments
directly to such assignee.
(e) Landlord represents and warrants that as of the date hereof, there is
no mortgage on the Real Estate.
SECTION 10.03. ATTORNMENT:
If the Demised Premises, the Building or the Land are encumbered by a
Mortgage and such Mortgage is foreclosed, or if same are sold pursuant to such
foreclosure or by reason of a default under said Mortgage, (a) Tenant shall not
disaffirm this Lease or any of its obligations hereunder, and (b) at the request
of the applicable Mortgagee or purchaser at such foreclosure or sale, Tenant
shall attorn to such Mortgagee or purchaser.
SECTION 10.04. TRANSFER OF LANDLORD'S INTEREST:
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The term "Landlord" as used in this Lease means only the owner or the
mortgagee in possession of the Demises Premises, the Building or the Real Estate
for the time being. In the event of any sale (including any sale-leaseback) of
the Demises Premises, the Building or the Real Estate, Landlord shall be and
hereby is entirely freed and relieved of all of its covenants, obligations and
liability hereunder, provided the transferee assumes all of Landlord's
obligations hereunder. This subsection shall be applicable to each owner from
time to time, and shall not be limited to the first owner of the Demised
Premises, the Building or the Real Estate.
SECTION 10.05. MORTGAGEE'S RIGHTS:
If Landlord shall notify Tenant that the Demised Premises, the Building or
the Land are encumbered by a Mortgage and in such notice set forth the name and
address of the Mortgagee thereof, then, notwithstanding anything to the contrary
contained herein, no notice intended for Landlord shall be deemed properly given
unless a copy thereof is simultaneously sent to such Mortgagee by certified or
registered mail, return receipt requested. If any Mortgagee shall perform any
obligation that Landlord is required to perform hereunder, such performance by
Mortgagee, insofar as Tenant is concerned, shall be deemed performance on behalf
of Landlord and shall be accepted by Tenant as if performed by Landlord.
ARTICLE XI. COMMON AREA
SECTION 11.01. USE OF COMMON AREA:
During the Term, the following rights to use certain portions of the Real
Estate in common with Landlord and any designee of Landlord, subject to the
terms of this Lease and Landlord's Rules and Regulations, are hereby granted to
Tenant:
(a) the non-exclusive right to permit its employees, agents and invitees
to use the Common Area as defined under 2.01; and
(b) the non-exclusive right to permit its employees, agents and invitees to
use the entrance and exit ways designated by Landlord from time to time for
access to the Demised Premises from a public street or highway adjacent to the
Real Estate through the appropriate entrances and exits so designated.
SECTION 11.02. LANDLORD'S RIGHTS:
Notwithstanding anything to the contrary contained herein, Landlord shall
have the right:
(a) to close all or any portion of the Common Area including the Parking
Area to such extent as may, in the opinion of Landlord's counsel, be necessary
to prevent a dedication thereof or the accrual of any rights of any person or
the public therein;
(b) to close all or any portion of the Common Area;
(c) to prohibit parking or passage of motor vehicles in areas previously
designated for such and to change the location of exclusively marked parking
spaces provided Landlord provides substitute parking, if required, and provided
that such action does not unreasonably interfere with Tenant's access or ability
to conduct business in the Demised Premises;
(d) to temporarily close any of the Common Area for repair, maintenance,
alteration or improvements;
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(e) to build additions to the Building or erect additional buildings on
the Common Area or the Land;
(f) to create paths, walks or other means of cross access through the
Land.
SECTION 11.03. LICENSE NUMBERS:
In order to restrict the use by Tenant's employees of areas designated or
which may be designated by Landlord as handicapped, reserved or restricted
Parking Areas, Tenant agrees that it will, at any time requested by Landlord,
furnish Landlord with the License numbers of any vehicle of Tenant and Tenant's
employees or agents.
SECTION 11.04. LANDLORD'S OBLIGATION WITH RESPECT TO PARKING AREA
Throughout the Term, Landlord shall keep the Parking Area properly paved
and in good order and repair, properly drained and shall provide painted stripes
to designated parking spaces. After the end of a snowfall, Landlord will
commence to remove accumulated snow and ice from the Parking Area and diligently
prosecute the same to completion so that, to the extent practicable, the Parking
Area shall be reasonably free of snow and ice. Landlord may deposit accumulated
snow on such portions of the Common Area as may be necessary under the
circumstances. If any ice cannot be removed with reasonable effort on the part
of Landlord, it will be sufficient for Landlord to spread sand and other
abrasive substances over the ice.
ARTICLE XII. DESTRUCTION OR DAMAGE.
SECTION 12.01. RENT ABATEMENT:
If the Demised Premises shall be partially damaged or destroyed by fire or
other casualty not attributable to the fault, negligence or misuse of Tenant,
its agents or employees, the Rent payable hereunder shall be abated to the
extent that the Demised Premises shall have been rendered untenantable and for
the period from the date of such damage or destruction to the date the Demised
Premises is rendered tenantable. Should tenant reoccupy a portion of the Demised
Premises during the period any restoration work is taking place and prior to the
date same is made completely tenantable, Rent allocable to such portion shall be
payable by Tenant from the date of such partial occupancy.
SECTION 12.02. OPTION TO TERMINATE:
If the Building or the Demised Premises shall be damaged or destroyed by
fire or other casualty (in the former case, whether or not the Demised Premises
are damaged or destroyed) so as to require an expenditure in Landlord's
reasonable opinion of more than 40% of the full insurable value (determined
prior to the casualty) of the Building or Demised Premises as the case may be,
then in either such case, Landlord may terminate this Lease by giving Tenant
written notice within ninety (90) days after the date of the casualty,
specifying the date of termination of this Lease. In such event, Tenant shall
forthwith quit, surrender and vacate the premises without prejudice, however, to
Landlord's rights and remedies against Tenant (or any rights or remedies which
Tenant may have against Landlord which are expressly set forth in this Lease) as
of the date of termination or as to those rights which survive such termination.
In the event of termination, the Rent payable hereunder shall be abated from the
date of damage or destruction. If Landlord's estimate (which estimate shall be
given no later than thirty (30) days following the date of the damage or
destruction) of the time required to repair the Demised Premises (so that Tenant
can reasonably conduct its business therein) exceeds twelve (12) months from the
date of such damage or destruction, Tenant shall have the right to terminate
this Lease by giving written notice to Landlord within thirty (30) days after
receipt of the Landlord's estimate. If Tenant exercises such termination right,
the Lease shall terminate on the date specified in the termination notice
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(without prejudice, however, to Landlord's rights and remedies against Tenant
(or any rights or remedies which Tenant may have against Landlord which are
expressly set forth in this Lease) as of the date of termination or as to those
rights which survive such termination).
SECTION 12.03. LANDLORD'S OBLIGATION TO REBUILD:
If all or any portion of the Demised Premises or access thereto is damaged
by fire or other casualty and if Landlord (or, to the extent provided in Section
12.02 hereof, Tenant) has not elected to terminate this Lease, Landlord shall,
within a reasonable time after such occurrence, repair or rebuild the Demised
Premises, such portion or access thereto to its condition immediately prior to
the Commencement Date. Tenant may terminate this Lease by giving written notice
to Landlord, if Landlord has not commenced the required repairs within one
hundred twenty (120) days or has not restored and rebuilt the Demised Premises
as herein provided within twelve (12) months from the date of such damage or
destruction and such delay is due to Landlord's fault. Landlord shall not be
obligated to expend in such repair or rebuilding any sums greater than the
proceeds of any insurance policy carried by Landlord or for Landlord's benefit.
SECTION 12.04. LANDLORD'S LIABILITY:
Landlord shall not be obligated to pay any damages, compensation or claim
for inconvenience, loss of business or annoyance arising from any casualty, or
repair or restoration of any portion of the Demised Premises or of the Building
pursuant to this Article.
ARTICLE XIII. CONDEMNATION.
SECTION 13.01. DEFINITIONS:
As used herein, the following words have the following meanings:
(a) TAKING: The deprivation of or damage to the Demised Premises, the
Building or the Land or any portion thereof, as the result of the exercise by a
governmental authority of any power of eminent domain, condemnation, or the
purchase by purchaser under threat thereof.
(b) TAKING DATE: With respect to any Taking, the date on which the
condemning authority or purchaser under threat shall have the right to
possession of the Demised Premises, the Building or the Land or any portion
thereof.
(c) AWARD: The proceeds of any Taking, less all expense in connection
therewith, including reasonable attorneys' fees.
SECTION 13.02. TAKING OF DEMISED PREMISES:
(a) In the event of a Taking of the whole of the Building, Land or Demised
Premises, other than a Taking for temporary use, this Lease shall automatically
terminate as of the Taking Date.
(b) In the event of a Taking of 40% of the Building, 40% of the Land or
50% of the Demised Premises, Landlord, at its sole option, may terminate this
Lease by giving written notice to the other party anytime between the period
three (3) months prior to the Taking Date and three months after such date. The
termination of the Lease shall be effective three months after such notice is
received. In the event of a Taking of 50% of the Demised Premises or 50% of the
Building which in Tenant's reasonable judgment materially interferes with
Tenant's ability to conduct its business in the Demised Premises, or
substantially denies or interferes with Tenant's access to the Building or
Demised Premises, Tenant shall have the right to terminate this Lease by giving
Landlord written notice of its election
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within thirty (30) days of the Taking. This Lease shall terminate on the earlier
of the Taking Date or three (3) months following Tenant's written notice.
SECTION 13.03. TAKING FOR TEMPORARY USE:
If there is a Taking of the Demised Premises for temporary use, this Lease
shall continue in full force and effect, and Tenant shall continue to comply
with all the provisions thereof, except as such compliance shall be rendered
impossible or impracticable by reason of such Taking. Rent shall be abated
during the course of such Taking to the extent and for the period of time that
the Demised Premises shall have been rendered untenantable.
SECTION 13.04. DISPOSITION OF AWARDS:
All Awards shall belong to Landlord without any participation by Tenant;
provided, however, that Tenant shall be entitled to any identifiable award for
Tenant's furniture, fixtures, moving expenses and the unamortized value of
Tenant Work, in each case in connection with such Taking.
ARTICLE XIV. TENANT'S INSURANCE.
SECTION 14.01. GENERAL INSURANCE:
(a) At all times during the Term of this Lease, Tenant shall carry and
maintain, at Tenant's expense, the insurance required hereunder, in the amounts
specified in this Article or such other amounts and in form and substance as
Landlord may from time to time reasonably request, issued by an insurance
company reasonably satisfactory to Landlord. Upon the execution of this Lease,
and from time to time as requested by Landlord, Tenant shall deliver to Landlord
certificates of all insurance policies required to be carried hereunder with
evidence of payment of applicable premium. All policies shall name Landlord and
all mortgagees, as additional insureds.
(b) Each policy so issued shall expressly provide: (i) that it may not be
cancelled for nonpayment, or for other reason without thirty (30) days' advance
written notice to Landlord; (ii) that the insurance company shall not fail to
renew the policy without thirty (30) days' advance written notice to Landlord;
(iii) that no material change may be made in the policy; and (iv) that it is not
subject to invalidation as to Landlord's interest by reason of any act or
omission of Tenant.
(c) The term "insurance policy" shall include any extensions or renewals
of such insurance policy.
(d) Landlord shall keep in force during the Term "all risk" casualty
insurance covering the Building in an amount not less than fifty percent (50%)
of the replacement value of the Building with such deductibles and with such
coverage exclusions as Landlord deems reasonable. Any insurance required by the
preceding sentence shall be (A) with Landlord's insurer so long as Landlord is
The Connell Company or an affiliate of The Connell Company; otherwise the
insurance shall be issued by a recognized and reputable insurance company and
(B) only required if and to the extent that such insurance is available to
owners of commercial office properties at commercially reasonable rates. Without
limiting the foregoing, Landlord shall maintain insurance coverage for the
Building and Land as it deems necessary, and Tenant shall not do or permit to be
done any act or thing upon the Real Estate which would (i) jeopardize or be in
conflict with fire insurance policies covering the Building and fixtures and
property on the Land, (ii) increase the rate of fire or other casualty insurance
applicable to the Real Estate to a rate higher than it otherwise would be for
general office use of the Building, or (iii) subject Landlord to any liability
or responsibility for injury to any person or persons or to property by reason
of any business or operation Tenant carries on upon the Real Estate.
SECTION 14.02. TENANT LIABILITY INSURANCE:
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Tenant shall provide on or before it enters the Demised Premises for any
reason and shall keep in force during the Term for the benefit of Landlord and
Tenant, liability insurance naming Landlord and any designee of Landlord as
additional insureds. The policy shall protect Landlord, Tenant and any designee
of Landlord against any liability occasioned by any occurrence on or about the
Demised Premises or any appurtenance thereto or arising from any of the items
indicated in Section 15.01 against which Tenant is required to indemnify
Landlord. Such policy is to be written in a combined single limit of at least
$3,000,000.00 for injury or death to one or more than one person arising from
any one occurrence and in the amount of $1,000,000.00 with respect to property
damages. In addition, Tenant shall maintain and provide a $10,000,000.00,
umbrella policy on terms Landlord specifies.
SECTION 14.03. TENANT FIRE INSURANCE:
Tenant shall insure and keep its equipment, personal property and all
leasehold improvements benefiting the Demised Premises or elsewhere on the Real
Estate insured against damage by fire, water and other casualties and risks
covered by "All Risk" and extended coverage insurance. Landlord will not carry
insurance of any kind on Tenant's equipment or personal property, and, except as
provided by law or by reason of its fault or its breach of any of its
obligations hereunder, shall not be obligated to repair any damage thereto or
replace the same.
SECTION 14.04. TENANT WORKER'S COMPENSATION INSURANCE:
Tenant shall maintain worker's compensation insurance insuring against and
satisfying Tenant's obligations and liabilities under the applicable worker's
compensation laws.
SECTION 14.05. OTHER TENANT INSURANCE:
Tenant shall carry insurance against such other hazards and in such amounts
as may be customarily carried by tenants of similar properties, as Landlord may
reasonably require for its protection from time to time.
SECTION 14.06. WAIVER OF SUBROGATION:
Landlord and Tenant each hereby releases the other, its officers,
directors, employees and agents from liability or responsibility (to the other
or anyone claiming through or under them by way of subrogation or otherwise) for
any loss or damage to property covered by valid and collectible fire insurance
policy with standard extended coverage endorsement, even if such loss or damage
shall have been caused by the fault or negligence of the other party, or anyone
for, whom such party may be responsible to the extent of insurance proceeds.
Landlord and Tenant each agrees that any fire and extended coverage insurance
policies carried by each of them respectively and covering the Demised Premises
or their contents will include such a clause or endorsement.
SECTION 14.07. INSURANCE RATE:
If, as a result of (a) any act or omission by Tenant or violation of any
terms of this Lease; (b) the use to which Tenant has put Demised Premises; or
(c) Tenant's failure to comply with Landlord's insurance requirements,
Landlord's insurance rates applicable to the Real Estate are raised, Tenant
shall reimburse Landlord, on demand, for the increased cost of Landlord's
insurance premiums, which comprise part of Rent. For the purposes of this
Section, any finding or schedule of the fire insurance rating organization
having jurisdiction over the Real Estate shall be deemed to be conclusive.
SECTION 14.08. TOXIC AND HAZARDOUS MATERIALS:
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(a) Tenant will not store, use, generate, manufacture, produce, release,
discharge or dispose of any toxic materials or Hazardous Materials in, on, or
about the Demised Premises or the Real Estate (provided that Tenant shall not be
in violation of the foregoing by its use and storage of standard office products
otherwise defined as hazardous, which products are used by Tenant with due care
and in accordance with the instructions of the product manufacturer and
otherwise in compliance with applicable law, in the reasonable and prudent
conduct of Tenant's business). Tenant will be solely responsible for and will
defend, indemnify and hold Indemnified Parties (as defined in Section 15.01(a)
of this Lease) from and against all claims, judgments, actions, costs,
penalties, damages and liabilities, including attorneys' fees and costs, arising
out of or in connection with Tenant's (and its agents') storage, use and
disposal of toxic materials and Hazardous Materials. Tenant will be solely
responsible for and will defend, indemnify and hold Indemnified Parties harmless
from and against any and all claims, costs and liabilities, including attorneys'
fees and costs, arising out of or in connection with the removal, clean-up and
restoration work and materials necessary to return the Demised Premises and any
other property of whatever nature located on the Real Estate to the condition
existing prior to such storage, use, generation, manufacture, production,
release, discharge or disposal of toxic materials or Hazardous Materials.
Tenant's obligations under this Section will survive the termination of this
Lease.
(b) For purposes of this Lease, the term "Hazardous Materials" includes
without limitation: (a) those substances included within the definitions of
"hazardous substances," "hazardous materials," "toxic substances," "hazardous
wastes," "solid waste" or similar terms in any Environmental Law; (b) petroleum
products and petroleum byproducts; (c) polychlorinated biphenyls; and (d)
chlorinated solvents. The term "Environmental Law" includes any federal, state,
municipal or local law, statute, ordinance, regulation, order, rule or
requirement (in each case as may be amended from time to time) pertaining to
health, industrial hygiene, environmental conditions (including, without
limitation, air, ground, water pollution and protection and/or preservation of
the environment), or hazardous materials or substances.
(c) Landlord represents and warrants that, to the best of its knowledge,
as of the date hereof, there are no Hazardous Materials (other than standard
office products and construction materials otherwise defined as hazardous which
are used in compliance with applicable law) located on the Real Estate. Landlord
agrees that it will not use, generate, manufacture, produce, store, release,
discharge or dispose of Hazardous Materials in, on, under or about the Demised
Premises, the Building or Real Estate, other than in compliance with applicable
law.
(d) Landlord will hold harmless, indemnify, and defend Tenant Parties (as
defined in Section 15.01(b) hereof) from and against all claims, judgments,
actions, costs, penalties, damages and liabilities, including reasonable
attorneys' fees and costs, to the extent arising out of or in connection with
(i) the presence of toxic materials and Hazardous Materials on the Real Estate
prior to the date hereof and (ii) Landlord's (and its agents') storage, use,
generation, manufacture, production, release, discharge and disposal of toxic
materials and Hazardous Materials (including any removal, clean-up or
restoration work in connection therewith) in, on, under or about the Demised
Premises, the Building or the Real Estate.
ARTICLE XV. INDEMNIFICATION AND LIABILITY
SECTION 15.01. INDEMNIFICATION
(a) Tenant hereby indemnifies and agrees to defend and hold Landlord, its
affiliates and each of their respective shareholders, officials, directors,
employees, representatives, servants and agents, and any Mortgagee (each, an
"Indemnified Party", and collectively, the "Indemnified Parties") harmless from
and against any and all claims, suits, proceedings, fees, penalties, actions,
causes of action, responsibilities, liabilities, payments, demands and expenses
(including attorneys' fees and disbursements) of any nature whatsoever relating
to or arising from:
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(i) Tenant's possession, use, occupation, management, repair,
maintenance or control of the Demised Premises, the Building or the Land,
or any portion thereof (including, without limitation, with respect to any
Tenant Work);
(ii) any act, omission or negligence of Tenant, Tenant's employees,
agents, invitees or visitors;
(iii) any default, breach, violation or nonperformance of this Lease
or any provision therein by Tenant;
(iv) injury or damages to person(s) or property or loss of life
sustained in or about the Demised Premises.
The indemnity under this Section 15.01(a) shall not apply to claims, suits,
proceedings, actions, or liabilities to the extent they are caused by the gross
negligence or willful misconduct of Landlord. Tenant shall defend any actions,
suits and proceedings which may be brought against any Indemnified Party with
respect to the foregoing or in which they may be impleaded. Tenant shall pay,
satisfy and discharge any judgments, orders and decrees which may be recovered
against any Indemnified Party in connection with the foregoing.
(b) Landlord hereby indemnifies and agrees to defend and hold Tenant, its
affiliates and each of their respective shareholders, officials, directors,
employees, representatives, servants and agents (each, a "Tenant Party", and
collectively, the "Tenant Parties") harmless from and against any and all
claims, suits, proceedings, fees, penalties, actions, causes of action,
responsibilities, liabilities, payments, demands and expenses (including
reasonable attorneys' fees and disbursements) of any nature whatsoever to the
extent relating to or arising from the gross negligence or willful misconduct of
Landlord in connection with this Lease. Landlord shall defend any actions, suits
and proceedings which may be brought against any Tenant Party with respect to
the foregoing or in which they may be impleaded. Landlord shall pay, satisfy and
discharge any judgments, orders and decrees which may be recovered against any
Tenant Party in connection with the foregoing.
(c) The rights to indemnification set forth in this Section 15.01 shall be
in addition to and not in lieu of any other rights to indemnification set forth
in this Lease, and shall survive the Expiration Date or other termination
hereof. Landlord (on behalf of itself and any applicable Indemnified Party)
shall notify Tenant of any claims for which Landlord seeks indemnification
pursuant to this Section 15.01. Tenant (on behalf of itself and any applicable
Tenant Party) shall notify Landlord of any claims for which Tenant seeks
indemnification pursuant to this Section 15.01. Notwithstanding anything to the
contrary herein, any indemnification in this Lease is subject to the waiver of
subrogation provisions set forth in this Lease, to the extent any such waiver of
subrogation provision is applicable thereto.
SECTION 15.02. WAIVER AND RELEASE:
Tenant hereby waives and releases all claims against Landlord with respect
to all matters for which Landlord has disclaimed liability pursuant to the
provisions of this Lease.
SECTION 15.03. LIABILITY OF LANDLORD:
(a) Neither Landlord nor any agent or employee of Landlord shall be liable
to Tenant for (i) any injury or damage to Tenant or to any other person or (ii)
any damage to, or loss (by theft or otherwise) of, any property of Tenant or any
other person, irrespective of the cause of such injury, damage, or loss, except
to the extent caused by or due to the willful misconduct or gross negligence of
Landlord, its agents or employees.
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(b) Landlord, and (in case Landlord shall be a joint venture, partnership,
tenancy-in-common, association or other form of joint ownership) the members of
any joint venture, partnership, tenancy-in-common, association or other form of
joint ownership shall have absolutely no personal liability with respect to any
provision of this Lease, or any obligation or liability arising therefrom or in
connection therewith. Tenant shall look solely to the equity of the owner in the
Real Estate or to any insurance which Landlord is obligated to provided under
the terms of this Lease for the satisfaction of any remedies of Tenant in the
event of a breach by Landlord of any of its obligations. Such exculpation of
liability shall be absolute and without any exception whatsoever.
(c) All property (whether real, personal or mixed) at any time located in
or upon the Demised Premises shall be at the risk of Tenant only, and Landlord
shall not become liable for any damage to said property or to Tenant, or to any
other property, caused by water, leakage, steam, sewerage, gas or odors or for
any damage whatsoever done or occasioned by or from any boiler, plumbing, gas,
water, steam or other pipes, or any fixtures or equipment or appurtenances
whatsoever, or for any damage arising from any act or neglect or arising by
reason of the use of, or any defect in, the Demised Premises or any of the
fixtures, equipment or appurtenances therein contained, or by the Act or neglect
of any other person or caused in any other manner whatsoever or occasioned by
theft, Act of God, riot, strike or other labor difficulty, except to the extent
caused by or due to the willful misconduct or gross negligence of Landlord, its
agents or employees.
(d) Except as otherwise expressly provided herein, this Lease and the
obligations of Tenant hereunder shall be in no way affected, impaired or excused
because Landlord is unable to fulfill, or is delayed in fulfilling, any of its
obligations under this Lease.
ARTICLE XVI. DEFAULT; REMEDIES.
SECTION 16.01. DEFAULT:
Each of the following shall constitute an Event of Default:
(a) the filing by tenant of a bankruptcy petition, or the commencement of
a proceeding under the insolvency laws of any State naming Tenant as the
debtor;
(b) the filing by anyone other than Tenant of a bankruptcy petition or a
proceeding under the insolvency laws of any State naming Tenant as the
debtor, which case shall not have been discharged within 30 days of the
commencement thereof;
(c) the making by Tenant of any assignment for the benefit of creditors or
any other arrangement involving all or substantially all of its assets
under any state statute;
(d) the appointment of a receiver or trustee for the Tenant or for all or
any portion of the property of Tenant in any proceeding, which receivership
shall not have been set aside within 30 days of such appointment;
(e) the failure of Tenant to pay (i) any Base Rent when the same shall
become due and payable; PROVIDED, HOWEVER, that, with respect to the first
one (1) time in any twelve month period during the Term in which Tenant
fails to pay Base Rent when due and payable, such failure to pay shall not
constitute an Event of Default under this clause (e) until such failure to
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pay continues for a period of five (5) days after written notice thereof
from Landlord to Tenant, or (ii) any other Rent or other charge required to
be paid by Tenant hereunder (other than Base Rent, in which case clause (i)
is applicable) when the same shall become due and payable and continues to
be unpaid for a period of five (5) days after written notice thereof from
Landlord to Tenant;
(f) the Letter of Credit shall for any reason whatsoever cease to be in
full force and effect (or Tenant shall otherwise be in breach of Section
1.04 hereof), or the Letter of Credit Provider (or any party on behalf of
the Letter of Credit Provider) shall contest the obligation to pay under
the Letter of Credit in accordance with its terms; and
(g) the failure by Tenant to perform or observe any requirement of this
Lease not specifically referred to in this Section, and such failure
continuing for twenty (20) days after written notice from Landlord to
Tenant specifying the items in default; provided however, that if the
failure requires more than twenty (20) days to cure, is capable of being
cured, and so long as Tenant is prosecuting the cure to completion with due
diligence, Tenant shall be permitted an additional thirty (30) days to cure
before such failure constitutes and Event of Default.
SECTION 16.02. LANDLORD'S REMEDY:
At any time after the occurrence of an Event of Default, Landlord may give
written notice to Tenant specifying such Event(s) of Default and stating that
the Lease and Term shall terminate five (5) days after the giving of such
written notice. At the expiration of such five days, this Lease and the Term and
all of the right, title and interest of Tenant hereunder shall wholly cease and
expire, and Tenant shall quit and surrender the Demised Premises to Landlord.
Notwithstanding such termination, surrender, and the expiration of Tenant's
right, title, and interest, Tenant's liability and responsibility under all of
the provisions of this Lease shall continue.
SECTION 16.03. LANDLORD'S RE-ENTRY
If this Lease shall be terminated as provided in Section 16.02, above,
Landlord, or its agents or employees, may re-enter the Demised Premises at any
time and remove therefrom Tenant, Tenant's Agents, and any subtenants,
licensees, concessionaires or invitees, together with any of its or their
property, either by summary dispossession proceedings or by any suitable action
or proceeding at law or otherwise. In the event of such termination, Landlord
may repossess and enjoy the Demised Premises. Landlord shall be entitled to the
benefits of all provisions of law respecting the speedy recovery of lands and
tenements, or proceedings in forcible entry and detainer. Landlord shall not be
liable in any way in connection with any action it takes pursuant to the
foregoing. Notwithstanding any such re-entry, repossession, dispossession or
removal, Tenant's liability and responsibility under all of the provisions of
this Lease shall continue.
SECTION 16.04. LANDLORD'S ADDITIONAL REMEDIES:
(a) In case of re-entry, repossession or termination of this Lease, whether the
same is the result of the institution of summary or other proceedings, Tenant
shall remain liable (in addition to accrued liabilities) to the extent legally
permissible for: (i) the Rent, and all other charges provided for herein until
the date this Lease would have expired had such termination, re-entry or
repossession not occurred; and all expenses which Landlord may have incurred in
re-entering the Demised Premises, repossessing the same; making good any Event
of Default; painting, altering or dividing the Demised Premises; combining or
placing the same in proper repair; protecting and preserving the same by placing
therein watchmen and caretakers; re-letting the same (including attorneys' fees
and disbursements,
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marshall's fees, brokerage fees, in so doing); and any expenses which Landlord
may incur during the occupancy of any new tenant; less (ii) the net proceeds of
any re-letting. Tenant agrees to pay to Landlord the difference between items
(i) and (ii) hereinabove with respect to each month, at the end of such month.
Any suit brought by Landlord to enforce collection of such difference for any
one month shall not prejudice Landlord's right to enforce the collection of any
difference for any subsequent month. In addition to the foregoing, Tenant shall
pay to Landlord such sums as the court may adjudge reasonable as attorneys' fees
with respect to any successful lawsuit or action instituted by Landlord to
enforce the provisions hereof.
(b) Landlord may re-lease the whole or any part of the Demised Premises
for the whole of the unexpired period of this Lease, or longer, or from time to
time for shorter periods, for any rental then obtainable, giving such
concessions of rent and making such special repairs, alterations, decorations
and paintings for any new tenant as it may in its sole and absolute discretion
deem advisable and may collect and receive the rents therefor. Landlord shall
use reasonable efforts to re-lease or to attempt to re-let the Demised Premises
on reasonable terms to mitigate its damage.
SECTION 16.05. AGREED FINAL DAMAGES:
In the event of the occurrence of an Event of Default, if Landlord so elects,
Tenant shall pay Landlord, on demand, as liquidated and agreed final damages,
the net present value of all Base Rent which would have been payable by Tenant
from the date of such demand to the date when this Lease would have expired if
it had not been terminated as aforesaid. Such net present value shall be
computed using a discount rate equal to the federal funds rate in effect at such
time. Upon payment of such liquidated and agreed final damages, Tenant shall be
under no further liability with respect to the period after the date of such
demand.
SECTION 16.06. WAIVER OF RIGHT OF REDEMPTION:
Tenant hereby expressly waives (to the extent legally permissible), for
itself and all persons claiming by, through, or under it, any right of
redemption or for the restoration of the operation of this Lease under any
present or future law in case Tenant shall be dispossessed for any cause, or in
case Landlord shall obtain possession of the Demised Premises as herein
provided.
SECTION 16.07. LANDLORD'S RIGHT TO PERFORM FOR ACCOUNT OF TENANT; LETTER OF
CREDIT:
If an Event of Default shall occur hereunder, Landlord may, at any time,
cure said Event of Default for the account and at the expense of Tenant. Tenant
shall pay, on demand, to Landlord, with interest as required by Section 20.09
hereof, the amount so paid, expended, or incurred by Landlord and any expense of
Landlord, including reasonable attorneys' fees, incurred in connection with such
Event of Default; and all of the same shall be deemed to be Additional Rent. If
an Event of Default shall occur hereunder, without limiting any other remedy
Landlord otherwise may have under this Lease, Landlord shall be entitled to draw
upon all or any portion of the Letter of Credit in order to satisfy any
obligations of Tenant owing under this Lease.
SECTION 16.08. ADDITIONAL REMEDIES, WAIVERS, ETC.:
With respect to the rights and remedies of and waivers by Landlord:
(a) The rights and remedies of Landlord set forth herein shall be in
addition to any other right and remedy now and hereafter provided by law. All
such rights and remedies shall be cumulative and not exclusive of each other.
Landlord may exercise such rights and remedies at such times, in such order, to
such extent, and as often as Landlord deems advisable without regard to whether
the exercise of one right or remedy proceeds, concurs with or succeeds the
exercise of another.
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(b) A single or partial exercise of a right or remedy shall not preclude
(i) a further exercise thereof, or (ii) the exercise of another right or remedy,
from time to time.
(c) No delay or omission by Landlord in exercising a right or remedy shall
exhaust or impair the same or constitute a waiver of, or acquiescence to an
Event of Default.
(d) No waiver of an Event of Default shall extend to or affect any other
Event of Default or impair any right or remedy with respect thereto.
(e) No action or inaction by Landlord shall constitute a waiver of an
Event of Default.
(f) No waiver of an Event of Default shall be effective unless it is in
writing and signed by Landlord.
ARTICLE XVII. TENANT'S ESTOPPEL CERTIFICATE
At any time within thirty (30) days after written request by Landlord,
Tenant shall certify to Landlord, any mortgagee, assignee of a mortgagee, any
purchaser, or any other person, specified by Landlord, by written instrument,
duly executed and acknowledged, (a) whether or not Tenant is in possession of
the Demised Premises; (b) whether or not this Lease is unmodified and in full
force and effect (or if there has been modification, that the same is in full
force and effect as modified and setting forth such modification); (c) whether
or not, to Tenant's knowledge, there are then existing set-offs or defenses
against the enforcement of any right or remedy of Landlord, or any duty or
obligation of Tenant (and if so, specifying the same); (d) the dates, if any, to
which any Rent or other charges have been paid in advance; and (e) such other
factual matters relating to this Lease as may be reasonably requested by
Landlord, any mortgagee or any of their designees.
At any time within thirty (30) days after written request by Tenant,
Landlord shall certify to Tenant or any other person reasonably specified by
Tenant, by written instrument, duly executed and acknowledged, (a) whether or
not this Lease is unmodified and in full force and effect (or if there has been
modification, that the same is in full force and effect as modified and setting
forth such modification); (b) whether or not, to Landlord's knowledge, Tenant is
in default under the Lease; and (c) such other factual matters relating to this
Lease as may be reasonably requested by Tenant.
ARTICLE XVIII. RIGHT OF ACCESS
Landlord, its employees, agents, representatives, may enter upon the
Demised Premises, or any portion thereof (with people and materials, if
required), with reasonable prior notice to Tenant and at reasonable times and
intervals and so as to not unreasonably disrupt or interfere with Tenant's use
and conduct of business within the Demised Premises, for the purpose of: (a)
inspecting same; (b) making such repairs, replacements or alterations which it
may be required to perform as herein provided or which it may deem desirable for
the Demised Premises; and (c) showing the Demised Premises to prospective
purchasers or lessees.
ARTICLE XIX. COVENANT OF QUIET ENJOYMENT.
Landlord covenants that if Tenant pays the Rent and all other fees, charges
and expenses provided for herein in a timely manner as and when due, duly
performs all of its other obligations provided for hereunder, and observes all
of the other provisions hereof, Tenant shall, at all times during
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the Term, peaceably and quietly have, hold and enjoy the Demised Premises,
without any interruption or disturbance from Landlord, subject to the terms
hereof.
ARTICLE XX. MISCELLANEOUS.
SECTION 20.01. INTERPRETATION.
(a) Every term, condition, agreement or provision contained in this Lease
which imposes an obligation on Tenant shall be deemed to be also a covenant by
Tenant.
(b) Any reference herein to subtenants or licensees shall not be deemed to
imply that any subtenants or licensees are permitted hereunder. Any reference
herein to any extension or renewal of the Term or any period during which Tenant
may be in possession after the Expiration Date shall not be deemed to imply that
any extension or renewal of the Term is contemplated hereby or that Tenant shall
be permitted to remain in possession after the expiration of the Term.
(c) If any provision of this Lease or the application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Lease, or the application of such provision to persons or
circumstances other than those to which it is invalid or unenforceable, shall
not be affected thereby, and each provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
(d) The captions and headings used throughout this Lease are for
convenience of reference only and shall not affect the interpretation of this
Lease.
(e) Anything in this Lease to the contrary notwithstanding:
(i) Any provision which permits or requires a party to take any
particular action shall also be deemed to permit or require a party to
cause such action to be taken; and
(ii) Any provision which requires any party not to take any particular
action shall be deemed to require the party not to permit such action to be
taken by any person or by operation by law.
(f) This Lease may be executed in several counterparts; and in such case
the counterparts shall constitute but one and the same instrument.
(g) Wherever a requirement is imposed on any party hereto, it shall be
deemed that such party shall be required to perform such requirement at its own
expense unless it is specifically otherwise provided herein.
(h) The singular includes the plural and the plural includes the singular.
(i) All Exhibits and Schedules hereto are hereby incorporated by reference
in and form an integral part of this Lease, and all references to the Lease
shall be deemed to include such Exhibits and Schedules.
SECTION 20.02. CONSTRUCTION OF WORDS AND PHRASES:
(a) Wherever it is provided herein that a party may perform an act or do
anything, it shall be construed that such party may, but shall not be obligated
to, so perform or so do.
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(b) The words "re-enter" and "re-entry" as used herein are not restricted
to their technical legal meaning.
(c) The word "person" shall be construed as an individual, fiduciary,
estate, trust, partnership, firm, association, corporation, other organization,
or a government or governmental authority.
(d) The following words and phrases shall be construed as follows:
(i) "At any time" shall be construed as, "at any time or from time
to time."
(ii) "Any" shall be construed as "any and all."
(iii) "Including" shall be construed as "including but not limited
to."
SECTION 20.03. WRITTEN AGREEMENT REQUIRED:
This Lease contains the entire agreement between the parties hereto
concerning the subject matter hereof, and supercedes all other agreements,
written or oral, with respect thereto. No amendment, alteration, modification of
or addition to the Lease will be valid or binding unless expressed in writing
and signed by Landlord and Tenant.
SECTION 20.04. NOTICE:
Every notice, request, consent, approval, waiver or other communication
under this Lease shall be deemed to have been given if in writing and upon
mailing by registered, overnight express/courier service or certified mail,
return receipt requested, postage prepaid, addressed:
(a) If to Landlord, to the address designated as Landlord's Notice
Address, or such other address as Landlord designates, with a copy thereof to
such other person or party as Landlord shall designate;
(b) If to Tenant, to the address designated as Tenant's Notice Address, or
such other address as Tenant designates, with a copy thereof to the address
designated as Tenant's Notice Copy Address or to such other person or party as
Tenant shall designate.
(i) LANDLORD'S NOTICE ADDRESS:
The Connell Company
45 Cardinal Drive
Westfield, New Jersey 07090
Attention: President
(ii) TENANT'S NOTICE ADDRESS UNTIL TENANT COMMENCES OPERATIONS IN THE
DEMISED PREMISES:
Genta Incorporated
99 Hayden Avenue
Suite 200
Lexington, MA 02421
Attention: Gerald M. Schimmoeller
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After Tenant commences operations in the Demised Premises:
Genta Incorporated
Two Oak Way
Berkeley Heights, NJ 07922
Attention: Gerald M. Schimmoeller
SECTION 20.05. SURVIVAL OF PROVISIONS UPON TERMINATION OF LEASE.
This Lease shall survive the expiration of the Term to the extent necessary
that any term, covenant or condition of this Lease requires the performance of
obligations or the forbearance of an act by either party hereto after the
termination of the Lease. Such survival shall be to the extent reasonably
necessary to fulfill the intent thereof, or if specified, to the extent of such
specification, as same is reasonably necessary to perform the obligations and/or
forbearance of an act set forth in such term, covenant or condition.
SECTION 20.06. SUCCESSORS AND ASSIGNS:
Subject to the provisions hereof, this Lease shall bind and inure to the
benefit of the parties and their respective successors, representatives, heirs
and permitted assigns.
SECTION 20.07. GUARANTOR OF TENANT:
Any restrictions on or requirements imposed upon Tenant hereunder shall be
deemed to extend to any guarantor of Tenant, Tenant's subtenants,
concessionaires and licensees and it shall be Tenant's obligation to cause the
foregoing persons to comply with such restrictions or requirements.
SECTION 20.08. TENANT AT SUFFERANCE:
If Tenant shall remain in possession of the Demised Premises after the end
of the Term (including if the Demised Premises have not been surrendered in
accordance with the terms of this Lease), such holding over shall cause the
Tenant to be deemed a tenant-at-sufferance, subject to all of the provisions,
conditions and obligations of this Lease, except that the Rent to be charged
Tenant during such hold over period shall be (i) during the first thirty (30)
days of such hold over period, 150% of the monthly Rent in effect for the last
month of the Term or any renewal periods, and (ii) during any period thereafter,
two times the monthly Rent in effect for the last month of the Term or any
renewal periods. Any acceptance of hold over Rent by Landlord shall not be
deemed a waiver of any rights or remedies available to Landlord arising out of
Tenant's failure to have vacated the Demised Premises upon the end of the Term,
or an acquiescence to Tenant's tenant-at-sufferance period.
SECTION 20.09. INTEREST:
Any payment required to be made by Tenant under the provisions of this
Lease not made by Tenant when and as due shall be payable by Tenant to Landlord
on demand with interest thereon at three (3%) percent over the rate designated
by the Bank of New York, New York (or its successor) from time to time as the
prime rate, but not to exceed the highest legal rate, computed from the date
said sum became due to and including the date of payment thereof to Landlord.
SECTION 20.10. LATE CHARGE:
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In order to cover the extra expense involved in handling delinquent
payments, Tenant, at Landlord's option, shall pay a "late charge" of five (5%)
percent of the amount due when any payment of Rent hereunder is received by
Landlord more than ten (10) days after the due date thereof. It is understood
and agreed that this charge is for additional expense incurred by Landlord,
shall not be considered interest, and shall be due in addition to the interest
required under Section 20.09 hereof.
SECTION 20.11. NON-WAIVER:
The failure of Landlord to insist upon strict performance of any covenants
or conditions of this Lease or Landlord's failure to exercise any option herein
conferred in any one or more instances shall not be construed as a waiver or
relinquishment of any such covenants, conditions or options, but the same shall
be and remain in full force and effect. If Landlord pursues any remedy granted
by the terms of this Lease or pursuant to applicable law, it shall not be
construed as a waiver or relinquishment of any other remedy afforded thereby.
SECTION 20.12. BROKER:
Each party represents that there was no broker other than Cushman &
Wakefield of New Jersey, Inc. (the "Broker") responsible for bringing about or
negotiating this Lease. Each party agrees to defend, indemnify, and hold the
other harmless against any claims for brokerage commission or compensation with
regard to the Demised Premises by any other broker claiming or alleging to have
acted on behalf of or to have dealt with such party. Landlord will pay any fees
or commissions due the Broker.
SECTION 20.13. SHORT FORM LEASE:
Landlord and Tenant agree that neither party shall record the Lease. Upon
request of either party the other shall execute a document in recordable form,
or a short form lease or memorandum of lease in proper form for recording,
setting forth the Commencement Date and any provision hereof other than Sections
5.01, 5.02, 5.03, 5.05. The requesting party shall pay all recording fees and
costs in connection with any such short form or memorandum of lease.
SECTION 20.14. MECHANICS' LIENS:
Tenant shall not do or cause anything to be done whereby the Demised
Premises may be encumbered by a mechanic's lien. If any mechanic's or
materialman's lien is filed against the Demised Premises, the Building or the
Real Estate as a result of any Tenant Work or any additions, alterations,
repairs, installations, improvements or any other work or act of Tenant, Tenant
shall discharge or bond same within twenty days from the date of filing of the
lien. If Tenant shall fail to discharge or bond the lien, Landlord may bond or
pay the lien or claim for the account of Tenant without inquiring into the
validity of the lien or claim and Tenant shall reimburse Landlord upon demand.
SECTION 20.15. CORPORATE AUTHORITY:
(a) Tenant represents that the undersigned officer(s) has (have) been duly
authorized to enter into this Lease and that the execution and consummation of
this Lease by Tenant does not and shall not violate any provision of any bylaws,
certificate of incorporation, agreement, order, judgment, governmental
regulation or any other obligations to which Tenant is a party or is subject.
(b) Landlord represents that the undersigned officer of Landlord has been
duly authorized to enter into this lease and that the execution and consummation
of this Lease by Landlord does not and shall not violate any provision of any
bylaw, certificate of incorporation, agreement, order judgment, governmental
regulation or any other obligation to which Landlord is a party or is subject.
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SECTION 20.16. FORCE MAJEURE:
Except as otherwise provided herein, Landlord shall not be liable for any
delays and other events beyond the reasonable control of a party (each, a
"Force(s) Majeure") including, without limitation: acts of God; strikes,
lock-outs or other labor difficulties; explosion, sabotage, accident, riot or
civil commotion; act of war; fire or other casualty; requirements of governing
authorities or inability to obtain necessary governmental permits and approvals.
SECTION 20.17. GOVERNING LAW:
This Lease shall be governed by and construed pursuant to the laws of the
State of New Jersey.
SECTION 20.18. FINANCIAL STATEMENTS:
If requested by Landlord, Tenant shall, within 90 days after the close of
each of its fiscal years, deliver to Landlord Tenant's balance sheet and profit
and loss statement certified to by a recognized firm of certified public
accountants; provided, however, that this Section 20.18 shall not be applicable
so long as Tenant is a publicly traded company.
ARTICLE XXI. ENVIRONMENTAL MATTERS.
SECTION 21.01. Industrial Site Recovery Act:
(a) Tenant represents and warrants that it is not an "Industrial
Establishment" as that term is defined in the Industrial Site Recovery Act,
formerly known as the Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6
ET SEQ., as same may be amended from time to time (together with all rules,
regulations, ordinances, opinions, orders and directives issued or promulgated
pursuant to or in connection with said Act by the New Jersey Department of
Environmental Protection ("DEP"), or any subdivision or bureau thereof or any
other governmental or quasi-governmental agency, authority or body having
jurisdiction thereof, referred to herein as the "Act" or "ISRA"). Tenant shall
not do or suffer anything that will cause it to become an Industrial
Establishment under the Act during the Term of this Lease. Landlord may from
time to time require Tenant at Tenant's sole expense to provide proof
satisfactory to Landlord that Tenant is not an Industrial Establishment. In the
event that Tenant now is or hereafter becomes an Industrial Establishment or is
required by the DEP, Tenant shall comply with all conditions as set forth in
subparagraphs (b) and (d) of this Section 21.01.
(b) Tenant agrees that it shall, at its sole cost and expense, fulfill,
observe and comply with all of the terms and provisions of the Act to the extent
in any way applicable to Tenant (including Tenant's use of the Demised Premises
or Real Estate), or Tenant's activities (even if the Act applies to an owner of
property). Without limiting the foregoing, upon Landlord's reasonable request
therefor, and in all events no later than sixty (60) days prior to "closing,
terminating or transferring operations" (as said terms are defined and used in
the Act) out of the Demised Premises (it being agreed that such 60 day time
limit may be extended, in Landlord's discretion, if such time limit is not
reasonable in light of the DEP's required response time), Tenant at its sole
cost and expense, shall provide Landlord with a true copy of:
(i) a letter of non-applicability from DEP (or such other agency or
body which shall then have jurisdiction over ISRA matters) in form
satisfactory to Landlord's counsel, stating that ISRA does not apply to
Tenant, Tenant's use and occupancy of the Demised Premises and to the
closing, terminating or transferring of operations at the Demised Premises;
or
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(ii) a Negative Declaration (as said term is defined in ISRA) duly
approved by DEP or such other agency or body then having jurisdiction over
ISRA matters; or
(iii) a Cleanup Plan (as said term is defined in ISRA) duly approved
by DEP (or such other agency or body which shall then have jurisdiction
over ISRA matters), the intent of which will be to obtain from the DEP a
"No Further Action" ("NFA") determination with respect to the Demised
Premises.
(c) Nothing in this Section shall be construed as limiting Tenant's
obligation to comply with ISRA.
(d) In the event Tenant complies with paragraph (b) (iii) of this Section
by obtaining an approved Cleanup Plan, Tenant agrees that it shall, at its sole
cost and expense:
(i) post any financial guarantee or other bond required to secure
implementation and completion of such Cleanup Plan; and
(ii) promptly and diligently implement and prosecute to completion
said Cleanup Plan by obtaining an NFA determination, in accordance with the
schedules contained therein or as may otherwise be ordered or directed by
DEP or such other agency or body which shall then have jurisdiction over
such Cleanup Plan. Tenant expressly understands, acknowledges and agrees
that Tenant's compliance with the provisions of subparagraphs (b) and (d)
may require Tenant to expend funds or do acts after the expiration or
termination of the Lease Term and Tenant shall not be excused therefrom.
(e) Within ten (10) days after a written request by Landlord or any
mortgagee of Landlord (or sooner, if required by the DEP) and, in any event, on
each anniversary of the Commencement Date, Tenant shall deliver to Landlord and
Landlord's Mortgagee, if any, a duly executed and acknowledged affidavit of
Tenant's chief executive officer, certifying:
(i) the proper four digit Standard Industrial Classification number
relating to Tenant's then current use of the Demised Premises
(Standard Industrial Classification Number to be obtained by
reference to the then current Standard Industrial Classification
Manual prepared and published by the Executive Office of the
President, Office of Management and Budget or the successor to
such publication); and
(ii) (A) that Tenant's then current use of the Demised Premises does
not involve the generation, manufacture, refining, transportation
treatment, storage, handling or disposal of hazardous substances or waste
(as hazardous substances and hazardous waste are defined in ISRA) on site,
above ground or below ground (all of the foregoing are hereinafter
collectively referred to as the "Presence of Hazardous Substances"), or,
(B) that Tenant's then current use does involve the Presence of Hazardous
Substances, in which event, said affidavit shall describe in complete
detail that portion of Tenant's operations which involves the Presence of
Hazardous Substances. Such description shall, INTER ALIA, identify each
hazardous substance and describe the manner in which Tenant generated,
handled, manufactured, refined, transported, treated, stored and/or
disposed of same. Tenant shall supply Landlord and Landlord's mortgagee, if
any,
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with such additional information relating to the Presence of Hazardous
Substances as Landlord or Landlord's mortgagee requests.
(f) Without limiting the foregoing, Tenant agrees:
(i) at its sole cost and expense, to promptly discharge and remove
any lien or encumbrance against the Demised Premises, the Building, the
Real Estate or any other property owned or controlled, in whole or in part,
by Tenant imposed due to Tenant's failure to comply with ISRA, and
(ii) to defend, indemnify and hold Landlord harmless from and against
any and all liability, penalty, loss, expenses, damages, costs, claims,
causes of action, judgments and/or the like, of whatever nature, including
but not limited to attorneys' fees and disbursements and other costs of
litigation or preparation therefor, to the extent such costs arise from or
in connection with Tenant's failure or inability, for any reason
whatsoever, to observe or comply with ISRA and/or the provisions of this
Section 21.01.
SECTION 21.02. SPILL ACT:
(a) Tenant agrees that it shall, at its sole cost and expense, observe,
comply and fulfill all of the terms and provisions of the Spill Compensation and
Control Act, N.J.S.A. 58:10-23.11 ET. SEQ., as the same may be amended from time
to time and all rules, regulations, ordinances, opinions, orders and directives
issued or promulgated pursuant to or in connection with said Act by DEP, any
subdivision or bureau thereof or governmental or quasi-governmental agency or
body having jurisdiction thereof. (Said act and all said rules, regulations,
ordinances, opinions, orders and directives are hereinafter in this Section
21.02 collectively referred to as "Spill Act"), in each case to the extent in
any way applicable to Tenant (including Tenant's use of the Demised Premises or
Real Estate), or Tenant's activities (even if the Act applies to an owner of
property).
(b) Without limiting the foregoing, Tenant agrees:
(i) that it shall not do, omit to do or suffer the commission or
omission of any act which is prohibited by or may result in any liability
under the Spill Act, including without limitation the discharge of
petroleum products or other hazardous substances (as said terms are defined
in the Spill Act); and
(ii) whenever the Spill Act requires the "owner or operator" to do any
act, Tenant shall do such act and fulfill, all such obligations at its sole
cost and expense, it being the intention of the parties hereto that
Landlord shall be free of all expense and obligations arising from or in
connection with compliance with the Spill Act.
(c) Without limiting the foregoing, Tenant agrees:
(i) at its sole cost and expense, to promptly discharge and remove
any lien or any encumbrance against the Demised Premises, the Building, the
Real Estate or any other property owned or controlled, in whole or in part,
by Tenant, imposed by Tenant's failure to comply with the Spill Act; and
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(ii) to defend, indemnify and hold Landlord harmless from and against
any and all liabilities, penalties, losses, expenses, damages, costs,
claims, causes of action, judgments, suits and/or the like, of whatever
nature, (including but not limited to attorneys' fees and other expenses of
litigation or preparation therefor) which may at any time be imposed on,
incurred by or asserted against any Indemnified Party and which in any way
relate to or arise from or in connection with Tenant's failure or
inability, for any reason whatsoever, to observe or comply with the Spill
Act and/or the provisions of this Section 21.02.
SECTION 21.03. OTHER ENVIRONMENTAL LAWS:
Without limiting any of its other obligations hereunder, Tenant agrees that
it shall, at its sole cost and expense, promptly comply and keep continually in
full compliance with all federal, state and local laws, ordinances, rules,
regulations and requirements relating to air, ground and water pollution and
protection and/or preservation of the environment.
SECTION 21.04. SURVIVAL OF ENVIRONMENTAL TERMS AND CONDITIONS.
Tenant agrees that each and every provision of this Article XXI shall
survive the termination of this Lease. The parties hereto expressly acknowledge
and agree that Landlord would not enter into this Lease but for the provisions
of this Article XXI and the aforesaid survival thereof.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed as of the day and year first above written.
ATTEST: THE CONNELL COMPANY
By: /s/ Richard E. Bartok By: /s/ Duane Connell
----------------------------------- ------------------------------
Name: Richard E. Bartok Name: Duane Connell
--------------------------------- ----------------------------
Title: Assistant Secretary Title: Executive Vice President
-------------------------------- ---------------------------
ATTEST: GENTA INCORPORATED
By: /s/ Robert E. Klem By: /s/ Gerald M. Schimmoeller
----------------------------------- ------------------------------
Name: Robert E. Klem Name: Gerald M. Schimmoeller
--------------------------------- Title: Vice President and Chief
Title: Chief Scientific Officer Financial Officer
--------------------------------
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