The following terms shall have the following meanings wherever used in this Lease:
“Alteration” means any and every alteration, addition, construction or improvement of or to the Premises, other than Decorations.
“Association” means Princeton Crossroads at Ewing Owners Association, Inc., a New Jersey not-for-profit corporation, together with its successors and assigns.
“Board of Trustees” means the Board of Trustees of the Association, as defined in the Declaration. References in this Lease to the “Board” are to the Board of Trustees.
“Building Systems” means the base building life/safety, sprinkler, heating, ventilating, air conditioning, plumbing, mechanical and electrical systems, installations, and facilities of the Building (exclusive of Tenant’s supplemental, special or unique systems, installations or facilities) which serve both the Premises and other portions of the Building.
“Business Center” means all of the improved and unimproved real property described by metes and bounds in Exhibit A to the Declaration, together with all other real property, which is now, or may hereafter become, subject to the Declaration, together with any and all buildings, structures and improvements now or hereafter constructed thereon and together with any appurtenances thereto.
“Business Days” means all days except Saturdays, Sundays and days observed by the Federal government, the New Jersey State government or the City of Trenton as legal holidays and such other days as shall be designated as holidays by any applicable union contract.
“Business Hours” means 8:00 a.m. to 6:00 p.m. on Business Days.
“By-Laws” means the Bylaws of the Association, as the same may be amended from time to time.
“City” means the Township of Ewing, Mercer County, New Jersey and/or any other municipality having jurisdiction over the Property, and any successor thereto.
“Common Areas” is defined in, and/or determined pursuant to, the Declaration.
“Common Elements” is defined in, and/or determined pursuant to, the Declaration.
“Common Facilities” is defined in, and/or determined pursuant to, the Declaration.
“Condemnation” (or to “Condemn”) means any and every taking (temporary or permanent) for any public or quasi-public purpose, by any Government Entity by exercise of condemnation or eminent domain (or any transfer or conveyance by agreement in lieu thereof).
“Damage” means any and all damage or destruction resulting from fire, flood or other casualty.
“Declarant” is defined in the Declaration, and includes the Declarant’s successors and assigns.
“Declaration” means the “Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Princeton Crossroads at Ewing” dated June 6, 1988, and recorded on June 7, 1988 in Book 2445, Page 564 et seq. of the records of the Mercer County Clerk’s Office, as amended, modified and/or supplemented from time to time.
“Decorations” shall mean any and all floor coverings, objects of art, wall and ceiling coverings, and other similar decorative items undertaken or installed by Tenant in the Premises.
“DEP” means New Jersey Department of Environmental Protection and any successor agency.
“Employee” means an officer, director or employee.
“Environmental Claim” means any complaint, order, directive, claim, action, investigation, lawsuit, demand, citation, notice, proceeding or lien, or threatened complaint, order, directive, claim, action, investigation, lawsuit, demand, citation, notice, proceeding or lien, by a federal, state or local governmental entity involving Environmental Laws which arise from Tenant’s actions or omissions at the Premises and/or the business conducted by Tenant therein.
“Environmental Condition” means any emission, spill, discharge, contamination or threatened contamination of any kind or nature whatsoever at, on or from the Premises or affecting systems servicing the Premises which arises from Tenant’s actions or omissions at the Premises and which violate any Environmental Law, including, without limitation, the presence of Hazardous Substances.
“Environmental Laws” means all present and future federal, state or local laws, codes, ordinances, rules, regulations and other requirements as the same, from time to time, may be amended, which relate to the environment, including those applicable to the storage, treatment, disposal, handling and release of any Hazardous Substances.
“Fees-And-Costs” means the reasonable fees, charges, disbursements and expenses of attorneys, architects, engineers, expert witnesses, contractors, consultants and other Persons.
“Force Majeure” means the occurrence of any event which is beyond the reasonable control of Landlord or Tenant, as the case may be, including, without limitation, the inability to obtain building permits or other approvals from a Government Entity on a timely basis, unavailability of building materials, strikes and labor disruptions, unusual weather conditions, Acts of God, Acts of War, building moratoriums, sewer moratoriums, earthquake, flood or other natural disaster.
“Government Entity” means the United States, the State, Mercer County, the City, and any and every other agency, department, commission, rule-making body, bureau, instrumentality and/or political subdivision of government of any kind whatsoever, now existing or hereafter created, now or hereafter having jurisdiction over the Property.
“Hazardous Substances” means any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic substance, or other similar term, by any Environmental Laws. Substances or materials which are incorporated into generally available commercial products and which are required for the routine operation or maintenance of ordinary office machinery such as photocopiers, typewriters and microcomputers (for example, photocopier toner or ink, office equipment cleaning products and lubricating oil), shall not be deemed to be “Hazardous Substances” under this Lease so long as they are stored, used and disposed of by Tenant in compliance with all applicable Legal Requirements.
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“Insurance Requirement” means any rule, regulation, code, or other requirement issued by any fire insurance rating bureau or any body having similar functions and/or any insurance company which has issued a policy of Required Insurance, as in effect from the date of this Lease through the Expiration Date.
“Interest Rate” means a rate per annum equal to the lesser of: (x) 2% above the so-called “base rate” or “prime rate” (the “Prime Rate”) of Citibank, N.A., or any successor thereto, as publicly announced at its principal office from time to time (or, if such rate shall cease to be quoted by Citibank, N.A.; or any successor thereto, a publicly quoted referenced lending rate reasonably designated by Landlord which is comparable as an indicator of interest rates to the Prime Rate); or (y) the maximum rate of interest, if any, which Tenant may legally contract to pay in the State.
“Landlord’s Affiliates” means: Landlord’s Employees; and/or any Person affiliated with Landlord through common ownership of stock, partnership or other beneficial interests, or through common management or control and which is engaged in the performance of services relating to the development, construction, management and/or operation of the Business Center.
“Legal Proceeding” means every action, litigation, summary proceeding, arbitration, administrative proceeding, and other legal or equitable proceeding of any kind whatsoever.
“Legal Requirements” means each and every law, rule, regulation, order, ordinance, statute, requirement, code, or executive mandate of any kind whatsoever, present or future, issued by any Government Entity applicable to or affecting the Property.
“Lien” means any and every lien, charge or notice of claim, including without limitation any Notice of Unpaid Balance and Right to File Lien, of any kind whatsoever for the furnishing (or alleged furnishing) of (or on account of) labor, materials, services, facilities, or any other things whatsoever.
“Managing Agent” means Trillium Realty Advisors L.L.C. or any other managing agent of the Property, as designated by Landlord from time to time, together with its successors and assigns. The Managing Agent may be Landlord or a Landlord Affiliate.
“Operating Year” means each calendar year, or portion thereof, which includes any part of the Term.
“Person” means an individual person, corporation, partnership, trust, joint venture, proprietorship, estate or other incorporated or unincorporated enterprise, entity, or organization of any kind whatsoever.
“Premises” is defined in Section 1.1.
“Property” means, collectively, the Land and the Building and every part or portion thereof and all appurtenances thereto.
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“Property Employees” means all Employees of Landlord and other personnel who are directly involved with the operation, management, maintenance and repair of the Property.
“Rent” or “Rents” means, collectively, Fixed Rent and Additional Rent.
“Restoration” (or “Restore”) means and includes any and all repairs, restorations, rebuilding, reconstruction and replacements of every kind.
“Senior Encumbrance” means any, some or all of the following, as the context requires: (w) the Declaration; (x) the By-Laws; (y) any and every Mortgage now a lien, or hereafter becoming a lien, upon the Land and/or the Building; and (z) any ground or underlying lease presently or hereafter in effect between Landlord, as lessee or tenant, and any owner of the Land and/or the Building.
“State” means the State of New Jersey and any subdivision, agency or instrumentality thereof.
“Tax Year” means each twelve (12) month period (or any portion thereof) occurring during the Term commencing on January 1 and expiring on December 31 of each calendar year or such other period as may be adopted as the fiscal year for real estate tax purposes by the City, from time to time.
“Tenant’s Affiliates” means: Tenant’s Employees; and/or any Person affiliated with Tenant through common ownership of stock, partnership or other beneficial interests or through common management and control, but expressly excluding Tenant’s shareholders.
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Exhibit B-2
Assessments, Expenses and Taxes
The following terms shall have the following meanings whenever used in this Lease:
“Annual Assessment” is defined in the Declaration.
“Assessments” means, collectively, the Annual Assessment and the Capital Improvement Assessment.
“Capital Improvement Assessment” is defined in the Declaration.
“Expenses” means all costs, fees and expenses and any taxes thereon, which Landlord pays or incurs in and for the operation, maintenance and repair of the Property, including, but not limited to, all of the following: (a) Amortized Expenses (as defined hereinbelow); (b) water and water charges, water meter (if applicable) and steam and any other fuel or utilities; (c) the cost of electric current; (d) exterior wall and window cleaning and maintenance and all plaza, sidewalk, curb and other public area maintenance and cleaning; (e) landscaping, decoration and cleaning of grounds, sidewalks, parking lots, and other exterior areas of the Property; (f) rubbish and trash removal and recycling; (g) the purchase price or rental cost, as applicable, of all building and cleaning supplies, hand tools and materials; (h) fire, extended coverage, boiler and machinery, sprinkler apparatus, property damage, loss of rental, flood and plate glass, and other types of hazard insurance; public and other liability insurance; cost of fidelity bond premiums or insurance and any other insurance carried with respect to the Property which is reasonable and not excessive; (i) wages, salaries, bonuses, severance pay, vacation pay, overtime, disability benefits, hospitalization, medical, surgical, union and general welfare benefits, any pension, retirement or life insurance plan and other benefit or similar expense respecting Property Employees through the level of building manager; (j) worker’s compensation insurance, payroll, social security, unemployment and other similar taxes with respect to Property Employees through the level of building manager; (k) expenses imposed on the Landlord pursuant to Legal Requirements or any collective bargaining agreement with respect to Property Employees which relate to the compensation, health, safety or welfare of Property Employees only; (l) uniforms and working clothes for Property Employees through the level of building manager, and cleaning and replacement thereof; (m) all Fees-And-Costs incurred in connection with the operation, maintenance and repair of the Property; (n) charges for independent contractors (including attorneys accountants and auditors) performing work included within the definition of Expenses; (o) cost of permits or licenses for the operation of the Property or any equipment located therein and required by any Government Entity or pursuant to any Legal Requirements; (p) maintenance costs and expenses, and ordinary repairs, replacements and improvements, which are necessary or appropriate for the continued operation of the Property; (q) management fees or, if Landlord itself renders customary management services, a sum in lieu thereof which is not in excess of the then prevailing rates for management fees in the county in which the Property is situated for office buildings similar to the Building, but in neither event to exceed five percent (5%) of the Rents for all tenants at the Building; and (r) blacktopping or other paving (or repaving) of parking areas, and painting or striping of such areas and snow removal from sidewalks and parking areas and from roofs and other areas of the Property. Any item of Expenses, which may be properly categorized within one or more of the categories of Expenses, shall be included only once, it being the intention of the parties that Landlord shall not be entitled to more than the aggregate of all sums paid or incurred with respect to such item of Expenses. In this Exhibit B-2, “Amortized Expenses” shall mean the annual amortization (on a straight-line basis over a depreciable life in accordance with generally accepted accounting principles consistently applied, with interest calculated at an annual rate of one (1) percentage point above the Prime Rate at the time of Landlord’s or the Association’s having made such expenditure) of expenditures paid or incurred by Landlord or the Association, or on behalf of Landlord or the Association, for any capital repairs, replacements and improvements which are (x) required by any Legal Requirements or Insurance Requirements hereafter enacted or established, or (y) designed as labor-saving or energy-saving measures or designed to effect other economies or efficiencies in the operation or maintenance of the Property or the Business Center including, but not limited to, the replacement of parts of, but not the replacement of, one or more of the HVAC units.
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Both “Expenses” and “Assessments” shall exclude or have deducted from them, as the case may be, and as shall be appropriate: (aa) leasing commissions incurred in leasing or attempting to lease any part of the Building and advertising and promotional expenditures; (bb) executives’ salaries and benefits above the grade of building manager; (cc) amounts received by Landlord or the Association as proceeds of insurance or claims against responsible parties to the extent the proceeds are compensation for expenses which were previously included in Expenses or Assessments hereunder; (dd) cost of restoring the Property or Business Center by reason of fire or other casualty or by reason of the exercise of the right of eminent domain; (ee) Costs-and-Fees incurred in connection with (x) enforcing any obligations of other tenants of the Building, (y) the defense of title to any part of the Business Center or Landlord’s title to the Property, or (z) the negligence or tortious conduct of the Landlord, Landlord’s Affiliates, the Property Employees or the Business Center Employees (such term to include all employees, officers and directors of the Association and other personnel who are directly involved with the operation, management, maintenance and repair of the Business Center); (ff) the cost of any alterations, additions, changes, replacements, improvements and repairs and other items which are made in order to prepare space for a new or renewing tenant, including for this purpose Landlord’s Work and also including any such alterations that are made based upon the requirements of the American with Disabilities Act in the event compliance with such Act is required solely because of the fit-out of an individual tenant’s premises within the Building; (gg) any item of Expenses representing an amount paid to a related Person which is in excess of the amount which would have been paid in the absence of such relationship; (hh) all Taxes (together with any interest and penalties excluded from the definition of “Taxes”); (ii) ground rent and debt service; (jj) Costs-and-Fees incurred in the testing, survey, removal, containment, encapsulation or disposal of asbestos or other Hazardous Substances incorporated in the Building or on or under the Property or on, under or in any part of the Business Center; (kk) the costs, fines and penalties incurred as a result of Landlord’s violation of any Legal Requirements; (ll) except as set forth in the definition of Amortized Expenses, all depreciation; (mm) any costs of repair or replacement of defective workmanship or materials in the construction of any part of the Building or the Business Center; (nn) any cost which, in accordance with generally accepted accounting principles consistently applied should be capitalized other than Amortized Expenses; and (oo) any reserve for repairs; (rr) the cost of the initial development, or any additional development of, the Property or the Business Center.
Expenses for any year or portion thereof during which less than one hundred percent (100%) of the rentable square feet of the Building is leased to tenants shall be increased to include an imputed cost for unoccupied portions of the Building in an amount equal to the additional Expenses (consisting solely of “variable” components of Expenses) which would reasonably have been incurred by Landlord had one hundred percent (100%) of the rentable square feet of the Building been occupied by tenants during such period.
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“Taxes” means the sum of all of the following:
(a) real estate taxes and sewer rents, rates and charges;
(b) general and special assessments for public improvements or benefits (provided, however, that assessments which may be paid in installments shall be limited to the amount of the installment due in respect of the Tax Year in question, together with any interest payable in connection therewith);
(c) service charges, if any, assessed or imposed by any Government Entity with respect to police and fire protection, sanitation, security, or street maintenance and lighting; and
(d) all Fees-And-Costs reasonably incurred by Landlord to contest (or defend against) any of the foregoing, which are levied, assessed or imposed by the City, the County, the State, or any other Government Entity upon or with respect to the Building and/or the Land. “Taxes” shall not include Landlord’s federal, state or local income taxes nor franchise, gift, transfer, excise, capital stock, estate, succession, inheritance, mortgage, corporation, partnership or any gross receipts or profits taxes and Landlord shall not be entitled to reimbursement for, any fines, penalties or interest paid or incurred by Landlord as a result of Landlord’s late payment of Taxes, whether or not such late payment results from Landlord’s failure to timely furnish Tenant with a written statement of any Tax Payment due in accordance with Article 4 of this Lease. If, by reason of any change in the method of taxation or in the applicable Government Entity, a new or additional real estate tax, or a franchise, corporation, partnership, income, transit, gross receipts or profits tax or other tax or levy, fee or other governmental imposition, however designated, is levied against Landlord, the Premises and/or the Property in substitution in whole or in part for any item previously included in “Taxes”, or in lieu of additional Taxes, such new, additional, or redesignated item shall be included in “Taxes” calculated on the basis that the Property is the only asset of Landlord and Landlord’s only income is from the Property.
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Exhibit C
Required Insurance
The following is Required Insurance under this Lease:
1. Commercial general liability insurance containing the so-called “occurrence” clause (which shall include specifically the Premises and all streets, alleys, vaults, and sidewalks appurtenant to the Premises) with coverage limits (including umbrella coverage) not less than:
| (a) | bodily each occurrence: | $3,000,000 |
| (b) | property damage each occurrence: | $3,000,000 |
subject to increases from time to time to coverage levels which are not in excess of those customarily maintained for similar properties; and
2. Insurance upon Tenant’s property and fixtures which are not included in the basic construction of the Building or Landlord’s Work in an amount equal to the full replacement value thereof, including any increase in value resulting from increased costs, with coverage against such perils and casualties as are commonly included in “all risk” insurance policies (including fire, extended coverage, breakage of glass, sprinkler leakage, explosion, collapse, vandalism and malicious mischief); and
3. Worker’s compensation and employer’s liability insurance:
(i) statutory worker’s compensation including occupational disease as required by Legal Requirements; and
(ii) employer’s liability insurance with minimum limits reasonably acceptable to Landlord (not less than $500,000 in the aggregate).
Any other insurance coverages commercially available from time to time and reasonably requested by Landlord, which are then customarily obtained by tenants of properties similar to the Property.
Alterations Insurance
The following coverages, with the following minimum limits of coverage, are “Alterations Insurance” for purposes of Section 10.4:
(i) Worker’s compensation and employer’s liability insurance;
(ii) statutory worker’s compensation including occupational disease as required by Legal Requirements; and
(iii) employer’s liability insurance with minimum limits reasonably acceptable to Landlord (not less than $500,000).
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Comprehensive commercial general liability insurance with limits of:
| (i) | bodily injury: | |
| | each person | $3,000,000 |
| | | each occurrence | $3,000,000 |
| | | aggregate completed operations | $3,000,000 |
| | (ii) | property damage: | |
| | | each occurrence | $3,000,000 |
| | (iii) | coverage shall include also: | |
| | | | |
| (A) | personal injury groups A, B, C with employee exclusion deleted. |
| (B) | broad form property damage including all CU hazards. |
| (C) | independent contractors. |
| (D) | contractual liability. |
| (E) | products liability and completed operations. |
Comprehensive automobile liability, including all owned, not-owned and hired vehicles with a $3,000,000 combined single limit.
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Exhibit “D”
Work Agreement
Section 1. Landlord’s and Tenant’s Work
1.1 Landlord agrees to deliver the Premises to Tenant in “turn-key” condition by performing the work and furnishing the labor and materials described in, or required by the plans and specifications prepared by Jeffrey A. Fleisher Architects and approved by Tenant within three (3) Business Days following Landlord’s request for approval, which approval shall not be unreasonably withheld or delayed, and which are or will hereafter be identified in Appendix 1 hereto (“Tenant’s Plans and Specifications”) (such work is hereinafter referred to as “Landlord’s Work”). Landlord may substitute any materials or equipment for those required under Tenant’s Plans and Specifications if those required prove to be unavailable or commercially impracticable to obtain, provided the substituted materials or equipment are comparable or better in quality and performance, and provided further that with respect to any such substitution affecting finishes (e.g., color, design or aesthetics), Landlord shall first obtain the approval of Tenant thereto, which approval shall not be unreasonably withheld or delayed. Tenant shall respond to Landlord’s request for approval within three (3) Business Days following receipt of Landlord’s request for approval.
1.2 Landlord covenants that all the construction conducted by Landlord (including all Landlord’s Work and Extra Work) shall be done in a good and workmanlike manner using new materials in accordance with all applicable Legal Requirements. Landlord shall correct Landlord’s Work and all Extra Work (as hereinafter defined) in which defects of materials, workmanship or design may appear during a one (1) year period subsequent to the Commencement Date, exclusive of latent defects in such work. Additionally, before the Commencement Date, the parties shall inspect the Premises, have all systems demonstrated, and prepare a punch-list. The punch-list shall list incomplete, minor, or insubstantial details of construction; necessary mechanical adjustments; and needed finishing touches. Landlord will complete the punch-list items as soon as possible thereafter, but in no event later than ninety (90) days after substantial completion of Landlord’s Work, subject to force majeure. All warranties and guaranties pertaining to any item of Landlord’s Work or Extra Work (as hereinafter defined) received by Landlord shall be assigned, if permitted or otherwise made available, to Tenant during the Term to the extent such warranties and guaranties cover items for which Tenant is responsible under this Lease. Any reference to “punch-list work” shall refer to minor or insubstantial details of construction, decoration or mechanical equipment that do not interfere with the use or occupancy of the Premises except in an immaterial manner.
1.3 If Landlord agrees to perform, at Tenant’s request, and upon submission by Tenant of necessary plans and specifications any work which is inconsistent with Tenant’s Plans and Specifications or any additional or non-Building Standard Work over and above Landlord’s Work, or any substitutions for any portion of Landlord’s Work, whether the same is in substitution for any item of color, design, materials, finishes, capacities, labor or services and whether or not the foregoing shall be performed pursuant to a written change order (“Change Order”) in the form appended hereto as Appendix 2 (all, any or some of the foregoing, “Extra Work”), said Extra Work shall be performed by Landlord, at Tenant’s sole cost and expense. Prior to the issuance of a Change Order, if Tenant shall require any Extra Work, Tenant may demand and Landlord shall provide, within a reasonable time after the making of such demand, a non-binding, good faith estimate of (x) the cost of such Extra Work, (y) an estimate of any delay in the schedule for the performance of Landlord’s Work which may result therefrom and (z) if then feasible the date on which the Commencement Date, as adjusted hereby, shall be deemed to occur. If Tenant shall demand such an estimate, Landlord shall not be required to perform any such Extra Work until the estimate has been approved by Tenant and a Change Order executed. If any Landlord’s Work is required to be removed and replaced as a result of Extra Work, the cost of such removal and replacement shall be deemed part of such Extra Work that shall be added to the cost of any Change Order. Tenant agrees that the foregoing payments shall be Additional Rent, and in default of payment thereof after notice and applicable cure periods, Landlord shall (in addition to all other remedies) have the same rights as in the event of a monetary Default.
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Section 2. Substantial Completion; Commencement Date.
2.1 “Substantially complete” or “substantial completion,” when used with respect to Landlord’s Work shall mean that Landlord has obtained a certificate of occupancy (temporary or final) and Tenant can use the Premises for their intended purposes without material interference to Tenant conducting its ordinary business activities and the only incomplete items are minor or insubstantial details of construction, mechanical adjustments, or finishing touches like touch-up plastering or painting. If a temporary certificate of occupancy is obtained, Landlord covenants to obtain a final certificate of occupancy at its sole cost and expense, within the required time period set forth in any temporary certificate of occupancy. If substantial completion of the Premises is delayed as a result of (y) force majeure or (z) the occurrence of any Tenant Delay Day, the time for performance by Landlord of its obligations hereunder shall be extended by an amount of time equal to such delay. For purposes of this paragraph, “Tenant Delay Day” shall mean each day of delay caused by (i) any Change Order, (ii) Tenant or Tenant’s agents acts or omissions, or (iii) Tenant’s failure to respond to Landlord’s request for approval in accordance with Section 1.1 hereof.
2.2. Any entry by Tenant or Tenant’s Employees on the Premises prior to the Commencement Date shall be subject to Landlord’s approval and shall be deemed to be under all of the terms, covenants, provisions and conditions of this Lease; except that Tenant may enter the Premises to inspect Landlord’s Work upon twenty-four (24) hours prior written notice to Landlord at such times as shall, in Landlord’s reasonable opinion, not interfere with the progress of Landlord’s Work. Notwithstanding the foregoing, Tenant may enter the Premises, upon Landlord’s prior written consent not to be unreasonably withheld, during the two (2) week period prior to the Commencement Date to install its furniture, fixtures and equipment, provided that such installation shall not interfere with or delay Landlord’s completion of the Landlord’s Work and shall otherwise be completed in compliance with the terms of this Lease. Tenant shall give Landlord at least twenty-four (24) hours notice prior notice of its intention to enter the Premises. Such early access shall be coordinated with Landlord so as to facilitate the completion of the Premises on a timely basis. Tenant shall indemnify and hold Landlord harmless from and against any claims, delays, damages or other expenses paid or incurred by Landlord that result from Tenant’s use of non-union labor with respect to the performance of any work in the Property or jurisdictional disputes relating thereto. Landlord shall not be liable in any way for any injury, loss or damage which may occur to any of Tenant’s property, fixtures, decorations or installations made or installed by Tenant prior to the Commencement Date, the same being made or installed solely at Tenant’s risk.
2.3. Promptly following the execution of this Lease, Landlord shall direct the Architect to commence preparation of the plans and specifications, and Landlord shall commence and prosecute to completion the construction of Landlord’s Work after Tenant’s approval of the plans and specifications. Landlord shall advise Tenant of the estimated date of substantial completion and delivery of the Premises to Tenant. Upon the Commencement Date, Landlord shall deliver physical possession of the Premises to Tenant reserving the right to enter upon the Premises in order to complete the “punch list” and all other corrective work. Landlord currently anticipates that the Landlord’s Work (other than Item 1 of Appendix 1) will be substantially completed on or about August 1, 2006.
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2.4 Subject to the provisions of paragraph 2.1 of this Work Agreement, in the event that any of the Landlord’s Work set forth in Appendix 1, other than that described in paragraph 1 of Appendix 1, is not substantially complete by September 1, 2006, Tenant shall receive one (1) day free of Fixed Rent for each day after September 1, 2006, that the Landlord’s Work (other than Item 1 of Appendix 1) is not substantially complete. Subject to the provisions of paragraph 2.1 of this Work Agreement, if any of the Landlord’s Work, other than that described in paragraph 1 of Appendix 1, is not substantially complete by October 15, 2006, then and in such event, Tenant shall have the right to terminate this Lease provided it serves written notice of its election to so terminate upon Landlord on or before October 20, 2006, TIME BEING OF THE ESSENCE. Subject to the provisions of paragraph 2.1 of this Work Agreement, in the event the Landlord’s Work set forth in paragraph 1 of Appendix 1 is not substantially complete by December 31, 2006, then and in such event Tenant shall have the right to terminate this Lease provided it serves written notice of its election to so terminate upon Landlord on or before January 5, 2007, TIME BEING OF THE ESSENCE.
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Appendix 1 - 250 Phillips Boulevard
Antares Pharma – Landlord Work
The Landlord shall construct the Landlord Work based upon Exhibit A of this Lease. The Landlord’s intent is to deliver the space turnkey using this plan as a conceptual basis, with architectural drawings to follow. The plan to be developed will incorporate the requested improvements, including:
1. The front entrance to the Premises shall be replaced with a double-door entrance, a larger air-lock, and building standard ceramic tile floor and an awning shall be installed over the new entrance doorway. This work will be permitted and completed separately from the other Landlord Work.
2. The reception cabinetry will be removed.
3. Removal of the first office to the left of the current entrance to accommodate the re-designed entrance and allow for a larger lobby. The floor will be a building standard wood floor.
4. Building standard wood flooring in the corner CEO office.
5. Removal of the two offices directly behind the current reception area and removal of half the kitchen to accommodate a large room that will be a dry lab with building standard Vinyl Tile flooring.
6. A re-designed, smaller kitchen with new building standard kitchen cabinetry will be added in the remaining kitchen space. Any water or pumped drains will be stubbed off if possible, or cut off in ceiling and left in place.
7. Removal of the first office behind the large conference room to enlarge the conference room.
8. Expansion of the 2nd office behind the conference room to be as deep as the conference room is wide.
9. Creation of a CFO office with building standard wood flooring. This office is created by combining the 3rd and part of the 4th offices along the back window wall. The remainder of the 4th office is combined with the 5th office into one office.
10. Removal of all five ½ height hard-wall cubicles in the center of the premises.
11. Close in the hard wall cubicle at the back of the suite to become a closed office.
12. The carpet shall be replaced throughout the Premises with building standard carpet.
13. All walls, except where the wall is currently covered with vinyl wall covering, will be painted with 2 coats of paint (color to be selected by Tenant from building standard choices).
14. Remove existing wall covering and re-cover with new building standard wall covering.
15. All vinyl cove base shall be replaced.
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16. Install new fence and shrubs around the Building’s dumpster area to make such dumpster area aesthetically pleasing, to be paid for by Tenant and Tenant’s Broker; provided, however, if the cost of such installation will exceed $2,500.00, Landlord must so notify Tenant in writing, and in such event, Tenant may direct Landlord not to perform such installation.
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Appendix 2
FORM OF TENANT CHANGE ORDER
Distribution to:
OWNER
ARCHITECT
CONTRACTOR
FIELD
[TENANT]
_________________________________________________________________________________________
PROJECT: | CHANGE ORDER NUMBER: |
Lot ___, Section _____ | |
[ Township/ | INITIATION DATE: |
_______________] | |
TO CONTRACTOR: | ARCHITECT’S PROJECT NO.: |
CONTRACT FOR: | |
CONTRACT DATE: | |
You are directed to make the following changes in this Contract:
_________________________________________________________________________________________________________________________________
Not valid until signed by the Owner, Architect and Tenant. Signature of the Contractor indicates his agreement herewith, including any adjustment in the Contract Sum or Contract time.
____________________________________________________________
The original Contract Sum was | $ . |
Net change by previously authorized Change Orders | $ . |
The Contract Sum will be (increased) (decreased) (unchanged) by this Change Order | $ . |
The new Contract Sum including this Change Order will be | $ . |
The Contract Time will be (increased) (decreased) (unchanged) by ( ) Days. | |
Authorized: | |
| |
| |
OWNER | |
| |
| |
Address | |
| |
| |
BY:_________________________ | |
DATE:______________________ | |
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*[MORTGAGE MASTER] | EXHIBIT "F" | CBNA #__________ |
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this “Agreement”), dated as of ___________________, 200_, between COMMERCE BANK, N.A., a national banking association, having its principal place of business at 1900 Market Street, Philadelphia, Pennsylvania 19103 and having a regional office at ____________________________________________________ ____________________ (the “Lender”), 250 PHILLIPS ASSOCIATES L.L.C., a New Jersey limited liability company, with offices c/o Trillium Realty Agency, Inc., 83 Princeton Avenue, Suite 3C, Hopewell, New Jersey 08525 (the “Landlord”) and ANTARES PHARMA, INC., a Delaware corporation, with offices at 707 Eagleview Boulevard, Suite 414, Exton, Pennsylvania 19341 (the “Tenant”).
RECITALS :
WHEREAS, Tenant has entered into a __________________________, dated as of ___________________, 200__ (as the same may be amended, the “Lease”), with Landlord, covering certain premises more fully described in the Lease (the “Premises”), which Premises are a part of that the real property known as _____________________________________________________________________ (the “Property”), which Property is more fully described on Schedule A attached hereto; and
WHEREAS, Lender has made a mortgage loan (the “Mortgage Loan”) to Landlord, as borrower in the original principal amount of $___________________, which Mortgage Loan is evidenced by a Mortgage Note dated ___________________, 200__ (the “Mortgage Note”), and is secured by a Mortgage and Security Agreement (the “Mortgage”) and an Assignment of Leases and Rents (the “Assignment”), each dated as of ______________________, 200__, and recorded _____________, 200_ in the public records of ______________ County at Book _____, Page _____ and Book ____, Page _____, respectively;
WHEREAS, Lender requires as a condition of the making of the Mortgage Loan that the Mortgage shall unconditionally be and remain at all times a lien or charge upon the Property, prior and superior to the Lease and the leasehold estate created thereby; and
WHEREAS, Tenant has agreed to the subordination of the Lease to the Mortgage on the condition that it is assured of continued occupancy of the Premises under the terms of the Lease and this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein contained, the parties hereto, intending to be legally bound hereby, promise, covenant and agree as follows:
1. The Lease and all estates, rights, options, liens and charges therein contained or created under the Lease are and shall be subject and subordinate to the lien and effect of the Mortgage insofar as it affects the real and personal property of which the Premises form a part, and to all renewals, modifications, consolidations, replacements and extensions thereof, and to all advances made or to be made thereunder, to the full extent of amounts secured thereby and interest thereon.
2. In the event Lender takes possession of the Property, as mortgagee-in-possession or otherwise, or forecloses the Mortgage or otherwise causes the Property to be sold pursuant to the Mortgage, Lender agrees not to affect, terminate or disturb Tenant’s right to quiet enjoyment and possession of the Premises under the terms of the Lease or any of Tenant’s other rights under the Lease in the exercise of Lender’s rights under the Mortgage or otherwise whatsoever, so long as Tenant is not then in Default (as defined in the Lease) under any of the terms, covenants or conditions of the Lease after written notice thereof and beyond the expiration of all applicable cure periods.
3. In the event that Lender succeeds to the interest of Landlord under the Lease and/or Landlord’s leasehold interest in the Property, or if anyone else acquires Landlord’s leasehold interest in the Property or the right to possession of the Property upon the foreclosure of the Mortgage or by other sale pursuant to the Mortgage, or upon the sale of the Property by Lender or its successors or assigns after foreclosure or other sale pursuant to the Mortgage or acquisition of title in lieu thereof or otherwise, Lender or its successors or assigns or the then owner or holder of Landlord’s leasehold interest in the Property after foreclosure or other sale pursuant to the Mortgage (hereinafter collectively referred to in this Agreement as “Successor Landlord”) and Tenant hereby agree to recognize one another as landlord and tenant, respectively, under the Lease and to be bound to one another under all of the terms, covenants and conditions of the Lease, and Successor Landlord shall assume all of the obligations of Landlord under the Lease. Accordingly, from and after such event, Successor Landlord and Tenant shall have the same remedies against each other for the breach of an agreement contained in the Lease as Tenant and Landlord had before Successor Landlord succeeded to the interest of the Landlord; provided, however, that Successor Landlord shall not be:
(a) liable for any act or omission of any prior landlord (including Landlord) except to the extent the same shall be continuing and so continues after Successor Landlord succeeds to Landlord’s rights under the Lease; or
(b) subject to any offsets or defenses that Tenant might have against any prior landlord (including Landlord) except for (i) any abatements, offsets or credits against rent (including without limitation additional rent) that Tenant is entitled to take or receive as provided in the Lease upon the happening of an event, and (ii) any overpayments of rent (including without limitation additional rent) paid by Tenant on an estimated basis, including without limitation, Tenant’s payments of operating expenses and taxes; or
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(c) bound by any fixed rent that Tenant might have paid for more than one month in advance to any prior landlord (including Landlord); or
(d) liable for return of any security deposit not paid, delivered or transferred to Successor Landlord by Landlord.
4. Although the foregoing provisions of this Agreement shall be self-operative, Tenant agrees to execute and deliver to Lender or any other Successor Landlord, such other reasonable instrument or instruments as Lender or such other Successor Landlord shall from time to time reasonably request in order to confirm such provision.
5. Tenant hereby warrants and represents, covenants and agrees to and with Lender:
(a) to deliver to Lender at the Lender’s notice address provided below a duplicate of each notice of default delivered to Landlord at the same time as such notice is given to Landlord;
(b) that Tenant is now the sole owner of the leasehold estate created by the Lease and shall not hereafter transfer the Lease except as permitted by the terms thereof;
(c) not to seek to terminate the Lease by reason of any default of Landlord without prior written notice thereof to Lender and the lapse thereafter of such time as under the Lease was offered to Landlord in which to remedy the default; provided, however, that with respect to any default of Landlord under the Lease which cannot be remedied within such time, if Lender commences to cure such default within such time and thereafter diligently proceed with such efforts and pursues the same to completion, Lender shall have such time as is reasonably necessary to complete curing such default, not to exceed sixty (60) days. Notwithstanding the foregoing, (i) in the event either Lender or Landlord do not cure or commence curing such default within the time provided to Landlord under the Lease and the nature of the default threatens Tenant’s ability to conduct its daily business or threatens to materially or adversely damage tenant’s property located on the Leased Premises, or (ii) in the event that the termination right Tenant seeks to exercise is pursuant to paragraph 2.4 of the Work Agreement attached as Exhibit “D” to the Lease, Tenant shall be permitted to exercise its rights under the Lease and/or Work Agreement;
(d) not to pay any fixed rent under the Lease more than 30 days in advance of the date on which the same are due or to become due under the Lease; and
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(e) upon written request from Lender, to certify promptly in writing to Lender in connection with any proposed assignment of the Mortgage, whether or not any default on the part of Landlord then exists under the Lease.
6. Landlord and Tenant agree with Lender that Tenant shall pay rent due under the Lease directly to Lender upon Tenant’s receipt of written notice from Lender directing Tenant to do the same, and Landlord hereby irrevocably authorizes and directs Tenant to make all such payments to Lender. In such event, Tenant shall have no liability whatsoever to Landlord for any payments made in accordance with Lender’s notice.
7. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns.
8. This Agreement shall be governed by and construed in accordance with the laws of the jurisdiction in which the Property is located.
9. This Agreement may not be changed, amended or modified in any manner other than by an agreement in writing specifically referring to this Agreement and executed by the parties hereto.
10. This Agreement may be executed in counterparts. If any provision of this Agreement shall be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby.
11. Tenant agrees that:
(a) neither the officers, nor the directors, employees, agents or shareholders of Lender shall be personally liable hereunder; and
(b) Tenant and all others shall look solely to the interest of Lender or any other Successor Landlord in the Property for the payment of any claim hereunder.
12. Lender’s address for notices shall be:
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[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their duly authorized officers as of the day and year first above written.
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COMMERCE BANK, N.A.
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ANTARES PHARMA, INC.
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250 PHILLIPS ASSOCIATES L.L.C.
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ACKNOWLEDGMENTS
[INSERT THREE (3) STATE SPECIFIC NOTARY BLOCKS]
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SCHEDULE A
Legal Description
