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FIRST AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE, dated as of the 4th day of April, 2001, by and
between TEN THIRTY-FIVE ASSOCIATES, LIMITED PARTNERSHIP, a New Jersey limited
partnership, having offices at 225 Highway 35, Red Bank, New Jersey 07701 (the
"Landlord"), and MILLENIUM CELL, LLC, a New Jersey limited liability company,
having offices at 1 Industrial Way West, Eatontown, New Jersey 07724 (the
"Tenant");
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have heretofore executed and delivered a
certain Lease, dated as of June 9, 1999, for the Tenant's rental of
approximately 9,730 rentable square feet of space, referred to in the lease as
Unit K, and commonly referred to as modules K and L in Building E (the
"Building"), in HovPark, One Industrial Way West, Eatontown, New Jersey (the
"First Leased Premises"), for a term of five (5) years (the "Base Lease"). All
capitalized terms that are used, but not defined, in this Amendment, shall have
the meanings assigned to such terms in the Base Lease;
WHEREAS, Landlord and Tenant desire to amend the Base Lease in order to
(i) expand the premises leased to Tenant, (ii) modify the rent, (iii) extend the
term, (iv) amend the Tenant's renewal option, (v) provide Tenant with an
expansion option and (vi) otherwise amend the Base Lease, all as specifically
provided herein. As used herein, the "Lease" shall mean the Base Lease as
modified by this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions contained herein, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties specifically agree as
follows:
1. DEMISED PREMISES: (A) Landlord leases to Tenant, and Tenant
leases from Landlord, (i) the First Leased Premises, (ii) approximately 4,900
rentable square feet of space in the Building, commonly referred to as Module M
(the "Module M Premises") as set forth on the Building Plan attached hereto as
Exhibit B-1 and the Floor Plan attached hereto as Exhibit C-1, and (iii)
approximately 17,874 rentable square feet of space in the Building, commonly
referred to as Modules E, F, G, H and J, it being understood that there is no
Module I (the "Module E Premises") as set forth on the Building Plan attached
hereto as Exhibit B-1 and the Floor Plan attached hereto as Exhibit C-2. All
references in the Lease to the Demised Premises shall mean (i) the First Leased
Premises, until the Module M Commencement Date, as hereinafter defined; (ii) the
First Leased Premises and the Module M Premises, collectively, commencing on the
Module M Commencement Date until the Module E Commencement Date, as hereinafter
defined; and (iii) the First Leased Premises, the Module M Premises and the
Module E Premises, collectively, commencing on the Module E Commencement Date.
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(B) During the term of the Lease, Tenant shall also have a
non-exclusive right, in common with the Landlord and other tenants, to use the
parking lots, common areas and sidewalks for pedestrian and vehicular access to
the Demised Premises, subject to the rules and regulations as attached to the
Base Lease and to such amendments thereto as the Landlord may now or hereafter
adopt, and to the right of the Landlord to alter the parking lots, common areas
and sidewalks from time to time.
2. COMMENCEMENT DATES: (A) The Module M Premises are currently
occupied by Biological Controls under a lease which expires April 30, 2001,
although it is currently projected that Biological Controls may vacate the
Module M Premises on or about April 15, 2001. The Module M Commencement Date
shall be the earlier of the date on which (i) Landlord makes the Module M
Premises available to Tenant for the construction by Tenant of the Module M
Alterations, as defined in Paragraph 8 hereof, or (ii) Tenant first occupies all
or any part of the Module M Premises.
(B) The Module E Premises are currently occupied by York
Telecom under a lease which expires December 31, 2001, although it is currently
projected that York Telecom may vacate the Module E Premises on or about
September 1, 2001. The Module E Commencement Date shall be the earlier of the
date on which (i) the Landlord has obtained on behalf of Tenant, and at Tenant's
expense, a certificate of occupancy, temporary or permanent, permitting
occupancy of the Module E Premises by Tenant, or (ii) Tenant first occupies all
or any part of the Module E Premises.
(C) If, for any reason, including but not limited to the
failure of the existing tenant to vacate either the Module M Premises or the
Module E Premises, Landlord is unable to deliver possession to Tenant as
currently projected, the Landlord shall have no liability to Tenant, the Lease
shall remain in effect and such failure to deliver possession shall be of no
consequence, except that the commencement date for such premises shall not occur
until Landlord delivers possession of such premises to Tenant.
(D) Upon request of either, Landlord and Tenant shall
complete and execute a commencement date memorandum substantially in the form
annexed hereto as Exhibit E to memorialize the occurrence of any one or more of
the commencement dates described in this Amendment.
3. TERM: The term of the Lease is amended to be (i) the period
between the date of this Amendment and the Module E Commencement Date plus (ii)
seven (7) years from the Module E Commencement Date. The expiration date of the
Lease will be the day prior to the seventh anniversary of the Module E
Commencement Date.
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4. BASE RENT: (A) Commencing on the Module M Commencement Date, in
addition to the Base Rent as provided in Paragraph 5 of the Base Lease, Tenant
shall pay Base Rent for the Module M Premises in the amount of SEVENTY FIVE
THOUSAND NINE HUNDRED FIFTY AND 00/100 ($75,950.00) DOLLARS, $15.50 per square
foot, payable in equal monthly installments of SIX THOUSAND THREE HUNDRED TWENTY
NINE AND 17/100 ($6,329.17) DOLLARS. Base Rent for the Module M Premises for the
partial month in which the Module M Commencement Date occurs, if the Module M
Commencement Date is not on the first day of a calendar month shall be prorated
on a daily basis and paid on the Module M Commencement Date.
(B) Commencing on the Module E Commencement Date, and for a
period of five years thereafter, in place of the Base Rent as provided in
Paragraph 5 of the Base Lease and the Base Rent provided in Paragraph 4(A) of
this Amendment, Tenant shall pay Base Rent for the entire Demised Premises in
the amount of FOUR HUNDRED EIGHTY FOUR THOUSAND THREE HUNDRED NINE AND 60/100
($484,309.60) DOLLARS payable in equal monthly installments of FORTY THOUSAND
THREE HUNDRED FIFTY NINE AND 13/100 ($40,359.13) DOLLARS.
(C) For the sixth year after the Module E Commencement Date
(i.e., commencing on the fifth anniversary of the Module E Commencement Date),
Tenant shall pay Base Rent for the entire Demised Premises in the amount of FIVE
HUNDRED THOUSAND FIVE HUNDRED SIXTY ONE AND 60/100 ($500,561.60) DOLLARS payable
in equal monthly installments of FORTY ONE THOUSAND SEVEN HUNDRED THIRTEEN AND
47/100 ($41,713.47) DOLLARS.
(D) For the seventh year after the Module E Commencement
Date (i.e., commencing on the sixth anniversary of the Module E Commencement
Date), Tenant shall pay Base Rent for the entire Demised Premises in the amount
of FIVE HUNDRED SIXTEEN THOUSAND EIGHT HUNDRED THIRTEEN AND 60/100 ($516,813.60)
DOLLARS payable in equal monthly installments of FORTY THREE THOUSAND SIXTY
SEVEN AND 80/100 ($43,067.80) DOLLARS.
(E) If any applicable commencement date, or applicable
anniversary date, does not occur on the first day of a calendar month, the Base
Rent payable for that month shall be appropriately prorated on a per diem basis
and any additional amount payable for that month beyond the Base Rent previously
paid by Tenant shall be due and payable within five (5) days after demand. Base
Rent for any partial month at the end of the term shall be similarly prorated on
a per diem basis.
5. SECURITY DEPOSIT: (A) Tenant agrees to pay to Landlord an
additional security deposit of $22,932, for a total security deposit of
$45,676.02 upon the Module M Commencement Date. Upon the Module E Commencement
Date, the security deposit will be increased to the amount of $588,972 and
Tenant agrees to pay the amount required to bring the security deposit to such
amount on the
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Module E Commencement Date. Landlord is not required to hold the security
deposit in a separate account and may commingle the security deposit with other
funds. Nevertheless, Landlord agrees that after the Module E Commencement Date,
provided that (i) Tenant has not elected to provide a letter of credit as part
of the security deposit pursuant to Paragraph 5(B), and (ii) Tenant is not in
default under the Lease, the security deposit will be deemed to accrue interest
at a rate of three (3%) percent per annum on the unapplied balance, from time to
time, of the security deposit held by Landlord, which interest shall be paid by
Landlord on each February 1 for the prior calendar year by credit against the
amount otherwise due from Tenant on such date.
(B) (i)Tenant shall have the right on or after the Module E
Commencement Date, at Tenant's option, to deliver to
Landlord an unconditional, irrevocable and transferable
letter of credit (the "Letter of Credit") in the amount
of the security deposit and to reduce the cash security
deposit required under the Lease by the amount of the
Letter of Credit; provided, however, that in no event
shall less than $45,676.02 be provided as a cash
security deposit; and further provided that if the
Letter of Credit is being provided after the Module E
Commencement Date, Tenant shall provide not less than
four (4) months written notice of its intent to
substitute a Letter of Credit for a portion of the cash
security deposit, which notice will set forth the amount
of the Letter of Credit to be provided. The Letter of
Credit must be issued by and drawn on a bank reasonably
satisfactory to Landlord as to size, location,
reputation and financial strength, be payable in New
Jersey, be in the form attached hereto as Exhibit F and
be otherwise in form and substance reasonably acceptable
to Landlord. The Letter of Credit shall be irrevocable
for an initial period of not less than one (1) year, and
shall by its terms automatically renew for successive
one (1) year periods, unless the issuing bank provides
the Landlord with not less than sixty (60) days prior
written notice, by postage prepaid certified mail,
return receipt requested that the Letter of Credit will
not automatically renew (a "Non-Renewal Notice"). If
Landlord receives a Non-Renewal Notice, then Landlord
may immediately present the Letter of Credit for payment
and retain the proceeds thereof as a cash security
deposit in lieu of the Letter of Credit.
(ii) The Letter of Credit shall be held as Landlord as part
of the security deposit as security for the faithful
performance and observance by Tenant of the terms,
conditions and provisions of this Lease, including
without limitation, the surrender of possession of the
Demised Premises to Landlord as herein provided. The
Letter of Credit shall be drawable by delivery to the
issuing bank of a statement purportedly signed by an
authorized representative of the Landlord stating that
the Landlord is entitled to draw upon the Letter of
Credit under the terms and conditions of the Lease. The
Letter of Credit will
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be honored by the issuing bank without inquiry as to the
accuracy of the statement, and regardless of whether
Tenant disputes the statement, and the Letter of Credit
shall so provide.
(iii) If Tenant defaults in respect of any of the terms,
provisions and conditions of this Lease (beyond
applicable grace periods), including, but not limited
to, the payment of the Base Rent or any other item of
rental, Landlord may present the Letter of Credit for
payment in full and apply or retain the whole or any
part of the proceeds thereof to the extent required for
the payment of the Base Rent or any other item of rental
as to which Tenant is in default or for any sum which
Landlord may, pursuant to the terms hereof, expend or be
required to expend by reason of Tenant's default in
respect of any of the terms, covenants and conditions of
this Lease, including, but not limited to, any damages
or deficiency accrue or accrues before or after summary
proceedings or other re-entry by Landlord. If Landlord
draws down on the Letter of Credit and only applies a
portion of the draw to any Tenant obligation under the
Lease, Landlord agrees to hold the balance of the draw,
if any, as a cash security deposit under the Lease. If
Landlord applies or retains any part of the proceeds of
the Letter of Credit, Tenant, upon demand, shall deposit
with Landlord the amount so applied or retained so that
Landlord shall have the full required security deposit
on hand at all times during the term. Tenant shall not
be entitled to any reduction in the Letter of Credit
unless and until the security deposit as required by the
Lease is fully funded.
(iv) If Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this
Lease, the balance of the Letter of Credit shall be
returned to Tenant after the expiration of the Lease and
after delivery of possession of the Leased Premises to
Landlord in the condition provided for herein.
(v) In the event of a sale or lease of the Building, the
Landlord shall have the right to transfer the Letter of
Credit to the vendee or lessee and Landlord shall
thereupon be automatically deemed released by Tenant
from all liability for the return of such Letter of
Credit, provided that the vendee or lessee shall have
assumed Landlord's obligations under the Lease, and
Tenant shall upon written notice from Landlord, cause
the bank which issued the Letter of Credit to transfer
the Letter of Credit to the vendee or lessee and thereby
name the vendee or lessee as the beneficiary thereunder.
Pending such transfer, Landlord shall continue to have
the right to draw upon the Letter of Credit as agent for
the vendee or lessee, and without liability to Tenant.
Tenant shall pay all expenses, points and/or fees
incurred related to the Letter of Credit and/or any
transfer(s) thereof. Upon compliance with the foregoing,
Tenant agrees to look solely to the new landlord for the
return of the Letter
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of Credit. The provisions hereof shall apply to every
transfer or assignment of the Letter of Credit made to a
new landlord.
(vi) Tenant shall not assign or encumber or attempt to assign
or encumber the monies deposited herein as security and
neither Landlord nor its successors or assigns shall be
bound by any assignment, encumbrance, attempted
assignment or attempted encumbrance.
(vii) No interest shall be payable on any portion of the
security deposit provided by Letter of Credit. If the
Landlord draws under the Letter of Credit for the whole
or any part of the Letter of Credit, and if the Landlord
holds the whole or any part of the proceeds thereof as a
cash security deposit, Tenant shall not be entitled to
interest for any period during which Landlord is so
holding such proceeds nor shall Landlord be required to
keep such security deposit separate from its general
funds. If the Landlord draws or attempts to draw under
the Letter of Credit, Landlord shall be entitled to
receive from Tenant reimbursement for any and all
expenses incurred by Landlord in connection with such
draw or attempt to draw, including but not limited to,
reasonable attorneys' fees.
(viii) Notwithstanding any of the above, at any time during the
lease term, Tenant may deposit with the Landlord the
cash equivalent of the Letter of Credit in lieu of such
Letter of Credit to satisfy the security deposit
requirement of this Lease. Any such cash deposit shall
be held by Landlord as described in this Lease for the
Tenant's faithful performance and observance by Tenant
of the terms, conditions and provisions of this Lease.
(ix) If Landlord presents the Letter of Credit for payment,
Landlord agrees to on the same date provide written
notice that the Letter of Credit notifying Tenant of the
presentation for payment which notice will set forth the
basis for Landlord's draw upon the Letter of Credit.
Notwithstanding any such notice, Tenant shall have no
right to prevent or hinder payment on any draw by
Landlord on the Letter of Credit, it being agreed that
any such draw request shall be honored by the issuing
bank without inquiry as to the Landlord's entitlement to
draw on the Letter of Credit under this Lease and
regardless of whether Tenant disputes Landlord's right;
provided, however, that Landlord agrees that any funds
received by Landlord as a result of such draw request
will be applied by Landlord in accordance with, and
subject to, the provisions of the Lease governing the
cash portion of the security deposit.
(C) In the event Tenant exercises its Expansion Right under
Paragraph 19, the security deposit shall be increased by the amount of
$180,438.82. The increased security deposit
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may be provided in cash or by Letter of Credit, and will be subject to all the
terms and conditions of this Paragraph 5.
(D) Provided that no default has occurred under this Lease,
then on each of the first, second and third anniversaries of the Module E
Commencement Date, Tenant shall have the right to request that Landlord consider
a reduction in the security deposit. In that event, Tenant shall have the
opportunity to attempt to demonstrate to Landlord's good faith satisfaction that
Tenant's financial condition has improved sufficiently so as to merit a
reduction in the security deposit, considering such factors as Tenant's payment
history, Dun and Bradstreet rating, relationships with lenders and creditors,
profitability, and balance sheet and operating statement history. If Landlord
and Tenant in good faith agree that a reduction is warranted on any anniversary
date, then Landlord agrees that provided no default has occurred under this
Lease, (i) if the agreement is reached on the first anniversary of the Module E
Commencement Date the security deposit will be reduced by the amount of one
month's Base Rent; (ii) if the agreement is reached on the second anniversary of
the Module E Commencement Date the security deposit will be reduced by the
amount of one month's Base Rent; (iii) if agreement is reached on the third
anniversary of the Module E Commencement Date, the security deposit will be
reduced by an additional one month's Base Rent; provided that:
(1) Tenant's right to request a reduction in the
security deposit shall be cumulative, such that if any of the reductions
provided for above is not agreed upon on the first or second anniversary, the
maximum reduction on the succeeding anniversary will be increased by the amount
of the reduction that could have been received (but was not) on the prior
anniversary(ies). For example, if no reduction were agreed upon on the first
anniversary, then the maximum reduction on the second anniversary (if agreed to
by Landlord) would be two (2) months Base Rent. Similarly, if on the third
anniversary, the total reduction in the security deposit on the first and second
anniversaries combined was equal to one (1) month's Base Rent (i.e., no
reduction in the security deposit was agreed to for one of such anniversaries
and a one (1) month reduction was agreed to on the other), then on the third
anniversary the maximum reduction (if agreed to by Landlord) would equal two (2)
months' Base Rent; and
(2) in no event shall the security deposit be reduced by
a total aggregate amount greater than $121,078.59 (or, if Tenant has exercised
its Expansion Right under Paragraph 19, $158,172.15) under any circumstances,
nor shall there be any right to request or receive a reduction in the security
deposit after the third anniversary of the Module E Commencement Date, and the
remaining security deposit shall thereafter continue to be held throughout the
remaining term and any extension term.
In addition to the foregoing, and provided that no default has occurred under
this Lease, then during the fourth, fifth and sixth years after the Module E
Commencement Date, Tenant shall have the right on an annual basis to request
that Landlord consider a further reduction in the security deposit, by
demonstrating to Landlord's good faith satisfaction that Tenant's financial
condition has continued to improve sufficiently so as to merit such a further
reduction in the security deposit, considering similar factors to those
described above. If Landlord and Tenant in good faith agree that a reduction
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is warranted, then Landlord agrees that, provided no default has occurred under
this Lease, the security deposit will be reduced by the amount Landlord in good
faith determines to be warranted; provided, however, that notwithstanding
anything to the contrary in this Lease, in no event shall the total aggregate of
all reductions in the security deposit, inclusive of any reductions agreed to on
the first, second or third anniversaries of the Module E Commencement Date and
any further reduction agreed to during the fourth, fifth and sixth years after
the Module E Commencement Date, reduce the security deposit to less than
$346,817.22 (or, if Tenant has exercised its Expansion Right under Paragraph 19,
to less than $453,068.92) and Landlord shall continue to hold a security deposit
in not less than such amount during the remainder of the lease term and any
extension term.
6. PROPORTIONATE SHARE OF COMMON AREA MAINTENANCE CHARGES AND
TAXES: Tenant shall throughout the term of the Lease continue to pay common area
maintenance charges and taxes, which shall be payable in monthly installments on
the first day of each calendar month, in amounts as estimated by Landlord, in
accordance with, and subject to adjustment as provided in, the Base Lease.
Tenant's proportionate share for common area maintenance charges and taxes shall
be calculated based upon the rentable square footage of the Demised Premises
divided by the total rentable square footage of all "flex" space (i.e.,
Buildings D and E) in the Project, as defined in the Base Lease, which is
currently 79,323 square feet. Accordingly the Tenant's proportionate share as of
the date hereof is 12.27% and the Base Lease is amended to so provide.
Commencing on the Module M Commencement Date, Tenant's proportionate share shall
equal 18.44%. Commencing on the Module E Commencement Date, Tenant's
proportionate share shall equal 40.98%.
7. TEMPORARY SPACE: To accommodate Tenant's immediate space needs,
Landlord has leased to Tenant, and Tenant has leased lease from Landlord,
approximately 3,000 rentable square feet of office space commonly known as Suite
P (the "Temporary Space"), on the second floor of Building B in the Project
pursuant to a letter agreement dated March 7, 2001 (the "Letter Amendment").
Tenant's occupancy of the Temporary Space shall be solely for office purposes
and shall be subject to all of the terms and conditions of the Lease, except as
expressly otherwise provided in the Letter Amendment.
8. AS-IS CONDITION: (A) Tenant agrees to accept the Module M
Premises, the Module E Premises, the Temporary Space and, if Tenant exercises
its expansion option, the Expansion Space in AS-IS condition and state of
repair, and by taking occupancy of any portion of the Demised Premises Tenant
will be conclusively deemed to have agreed that such portion was in satisfactory
condition on that date. Landlord shall have no obligation to construct or
contribute to any alterations or improvements to any of such premises, except as
otherwise expressly provided in this Paragraph 8. Without limiting the
foregoing, the provisions of Articles 10 and 11 and Exhibit E of the Base Lease
are not applicable to the
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Module M Premises, the Module E Premises, the Temporary Space or the Expansion
Space. Tenant shall be solely responsible for performing all tenant improvement
work, if any, to such premises at its own expense and in accordance with the
provisions of the Base Lease applicable to alterations by Tenant, including but
not limited to the provisions of Exhibit E-1 of the Base Lease.
(B) Landlord agrees to obtain on Tenant's behalf, and at
Tenant's expense, a Certificate of Occupancy for the Module E Premises, the
Temporary Space and, if applicable, the Expansion Space; and to make such
alterations as are required by the municipality in order to obtain the
certificate of occupancy in AS-IS condition, at Tenant's cost and expense.
Tenant acknowledges that to the extent that Tenant desires to make any
alterations to any of the premises, Tenant, at its own sole cost and expense,
will be required to obtain a building permit and a certificate of occupancy with
regard to such alterations and shall comply with all requirements of Exhibit E-1
of the Base Lease with respect thereto.
(C) Landlord and Tenant acknowledge that Tenant intends to
convert the existing existing warehouse space in Building Module M
(approximately 3,900 square feet) to general office and laboratory space (the
"Module M Alterations"). Landlord shall provide an allowance (the "Allowance")
of $20 per square foot (not to exceed $78,000) to be applied to the cost of
those Module M Alterations that are required to convert the existing warehouse
space in the Module M Premises to general office/laboratory space such as
lowered ceilings, general lighting, HVAC to office requirements, carpeting or
VAT flooring (the "Qualified Alterations"). The Qualified Alterations shall not
include any equipment or alterations required to create specialized laboratory
space. Tenant shall be responsible at its own expense for all permits, design,
architectural and construction plans for the Module M Alterations, as well as
for construction, construction management and supervision of the Module M
Alterations, which shall be subject to all of the provisions of the Base Lease
with regard to alterations by Tenant, including Exhibit E-1. The Allowance shall
be used to reimburse Tenant for the costs of constructing the Qualified
Alterations, but limited in all events to the amount of $78,000. Tenant shall
provide Landlord with contractor invoices for completed work and proof of
payment of costs of Qualified Alterations. Upon approval by Landlord, which
shall not be unreasonably withheld, Landlord shall pay the Allowance to Tenant
by authorizing Tenant to credit the amount due against the next installment of
Base Rent. Landlord or its designated representative(s) shall have the right to
inspect from time to time the Module M Alterations as they progress. Unless
otherwise agreed in writing by Landlord, all Module M Alterations, other than
the Qualified Alterations, shall be removed by Tenant and the Premises restored
to their prior condition by Tenant, all at Tenant's own
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sole cost and expense, prior to the expiration or other termination of this
Lease; provided, however, that all roof penetrations will be removed by Landlord
and the roof restored to Landlord's satisfaction, at Tenant's cost and expense.
(D) Paragraph 21 of Exhibit E-1 is amended to amend the
first sentence of Paragraph 21 to read as follows:
Lessee shall engage Landlord's roofing contractor for any roof
penetrations, including but not limited to penetrations for
Lessee's rooftop equipment, setting/installation of Lessee's
equipment or structural support at Lessee's equipment locations.
(E) Paragraph 22 of Exhibit E-1 is amended by adding the
following:
At Lessor's option, Lessee shall contract directly with Lessor's
roofing contractor for the performance of such work in a manner
so as to keep Lessor's roof guarantee in effect.
9. LESSOR'S REPAIRS: Lessor agrees, subject to the provisions of
Paragraph 8 of the Base Lease, to maintain the exterior walls and roof of the
Building, and the common areas, including but not limited to the parking areas,
in good condition and repair during the term of this Lease.
10. LESSEE'S REPAIRS: Paragraph 8.B of the Base Lease is amended by
deleting the final two sentences of the Paragraph in their entirety and
substituting the following:
Lessee will not commit or allow any waste or damage to be
committed on any portion of the Demised Premises, and, shall, at
the termination of this Lease, by lapse of time or otherwise,
deliver up the Demised Premises to Lessor in as good condition
as at the date of possession by the Lessee, ordinary wear and
tear, and casualty loss covered by Landlord's insurance,
excepted.
11. ASSIGNMENT AND SUBLETTING: (A) Paragraph 13.C.1 of the Base
Lease is amended by adding the following sentence: "Notwithstanding the
foregoing, Tenant shall be permitted to sublet a portion of the Demised Premises
in accordance with and subject to the provisions of Paragraph 13.C.2.a." 1.
(B) Paragraph 13.C.2.a of the Base Lease is deleted in its
entirety and replaced with the following:
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Lessee shall not assign or sublet this Lease without the prior
written consent of Landlord. Provided that Tenant is not in
default of this Lease, Landlord agrees not to unreasonably
withhold its consent to an assignment or to a sublease. Consent
withheld for any of the following reasons shall be conclusively
deemed to be consent reasonably withheld: (i) the proposed
assignee or sublessee is not financially qualified or is an
otherwise unsatisfactory credit risk, or is not sufficiently
experienced; (ii) the proposed assignment or subleased would
adversely the overall character or quality of the Building;
(iii) the proposed assignment or sublease, or use by the
assignee or sublessee would come within the provisions of ISRA
or the Spill Compensation and Control Act; (iv) the sublease
would result in more than twenty five (25%) percent of the
Demised Premises, in the aggregate, being subject to subleases;
(v) the use by the subtenant or assignee is not in accordance
with the permitted use under this Lease or would result in
increased burdens on the parking or other common areas; or (vi)
the proposed assignee or sublessee is an existing lessee in the
Complex.
(C) Paragraphs 13.C 2.b, 13.C.2.c(1) and (2), 13.C.2.e. and
the final paragraph of Paragraph 13.C of the Base Lease shall be deemed amended
to apply equally to any sublease, subletting and sublessee as they do to any
assignment or assignee.
(D) Paragraph 13.C.2.c(3) of the Base Lease is deleted in
its entirety and replaced by new paragraphs 13.C.2.c(3) and 13.C.2.c(4), as
follows:
(3) Tenant shall not publicly advertise or publicly market
the Demised Premises, or any part thereof, for a rental less
than the rental then being requested by Lessor for available
space in the Project.
(4) In the event the Landlord consents to any subletting or
assignment, Tenant shall pay to Landlord, monthly, as Additional
Rent, sixty (60%) percent of the rent and other consideration
(however characterized) received by Tenant from any such
sublessee or assignee in excess of the Base Rent and Additional
Rent payable under this Lease, pro rated on a square foot basis
as to sublets of less than all of the Demised Premises, after
appropriate provision has been made for the payment of broker's
commissions incurred in connection with such subletting or
assignment and the recovery by Tenant of reasonable fit-up costs
actually expended by Tenant in connection with any such
subletting or assignment, if any.
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(E) Paragraph 13.C.2.g of the Base Lease is amended to
provide that Landlord shall not have a right of recapture with respect to any
proposed sublease or subleases which in the aggregate are less than twenty-five
(25%) percent of the Demised Premises, and that as to Landlord's right to
recapture with respect to any sublease (other than subleases which in the
aggregate with all other subleases affect less than twenty-five (25%) of the
Demised Premises), the recapture shall be limited to the space affected by the
proposed sublease.
(F) The final paragraph of Paragraph 13.C is deleted in its
entirety, and replaced by the following:
Except as otherwise permitted by, and in accordance with, the
foregoing provisions of this Paragraph 13, Lessee will not
assign this Lease, or allow the same to be assigned by operation
of law or otherwise; nor shall Lessee sublet the Demised
Premises, or any part thereof. Further, Lessee shall not use or
permit the Demised Premises to be used for any other purpose
than the Permitted Use herein set forth without the prior
written permission of Lessor which may be refused for any
reason. Without limiting the other provisions of Paragraph 13,
the selling or other transfer in one or more transactions of
more than forty (40%) percent of (i) the membership interests in
a limited liability company Lessee, (ii) the corporate stock of
any corporate Lessee or (iii) the partnership interests in a
general or limited partnership Lessee, as applicable, shall be
deemed to be an assignment for purposes of this Lease Agreement.
No assignment or subletting, whether or not permitted by Lessor,
will relieve the Lessee of any obligation under this Lease.
12. TENANT'S INDEMNITY: Notwithstanding the provisions of Paragraph
13.G of the Base Lease, Tenant shall not be required to indemnify any party
against claims to the extent arising solely from the indemnified party's own
willful misconduct or gross negligence.
13. ENTRY TO SHOW PREMISES: Paragraph 13.I of the Base Lease is
amended to change "one hundred twenty (120) days" to "twelve (12) months".
14. LOSS OR DAMAGE: Paragraph 14.B of the Base Lease is amended by
adding the words "or wilful misconduct" immediately after the words "gross
negligence" in the final line.
15. LIEN TO RENT: Paragraph 14.C of the Base Lease is deleted in its
entirety.
16. RESTORATION AFTER FIRE OR CASUALTY: Paragraph 14.F of the Base
Lease is deleted in its entirety and replaced by the following:
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Lessee shall, in case of fire or other damage, give immediate
notice thereof to Lessor. In the event of damage to the Demised
Premises or Building by fire or other causes resulting from the
act, fault or negligence of Lessee or Lessee's agents, officers,
employees, invitees, or visitors, the same shall be repaired by
Lessor but at the expense of Lessee or, at Lessor's election by
the Lessee but under the direction and supervision of Lessor. If
the Demised Premises shall be partially destroyed by fire or
other casualty, all rent and other payments to be made to the
Lessor by Lessee under this Lease shall continue without
abatement. In case of the total destruction of the Demised
Premises without act, fault or negligence of Lessee, its agents,
officers, employees, invitees, or visitors, or if from such
cause the same shall be so damaged that Lessor shall decide in
its sole discretion not to rebuild, then Lessor shall so notify
Lessee of same and all Base Rent and other payments due up to
the time of such destruction or termination shall be paid by
Lessee, and Lessee agrees to quit and surrender the Demised
Premises and thereafter this Lease shall cease and come to an
end. As used herein, the Demised Premises shall be deemed to be
partially destroyed if Lessor determines, in its reasonable
discretion, that the repair and restoration of the Demised
Premises by Lessor can be substantially completed within six (6)
months. If this Lease is not terminated as a result of a fire or
other casualty pursuant to Paragraph 14.F of the Lease, then
Landlord shall repair the damage and restore and rebuild the
Building and/or the Demised Premises to the extent of the
insurance proceeds received by Landlord, with reasonable
dispatch after notice to it of the damage or destruction;
provided, however, that Landlord shall not be required to repair
or replace any of the Tenant's property or any alterations
constructed by Tenant.
17. CURING NON-MONETARY DEFAULTS: Paragraph 14.J.3 of the Base Lease
is amended by adding the following to the end of the first sentence regarding
the cure of non-monetary defaults: "....provided, however, that if such
non-monetary default cannot by its nature be cured within such ten (10) day
period, and Tenant commences the cure of such default within the ten (10) day
period and thereafter diligently and continuously pursues such cure to
completion, then Tenant shall have a reasonable time to cure such default, but
in no event more than ninety (90) days."
18. BANKRUPTCY: Paragraph 14.M of the Base Lease is supplemented to
provide that, as to involuntary proceedings commenced against Tenant, it shall
not be a default if such proceedings are dismissed within forty-five (45) days
from filing.
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19. OPTION TO EXPAND: (A) Provided that Tenant is not in default
under the Lease, then at any time on or before December 20, 2001, Tenant shall
have an option to lease an additional space of approximately 9,958 rentable
square feet of space in the Building, commonly known as Modules A, B, C and D,
as shown on Exhibit B-1 (the "Expansion Space"), subject to the terms and
conditions set forth in this Paragraph 19 (the "Expansion Right").
(B) Tenant's Expansion Right is available to Tenant until
December 20, 2001; provided that Tenant shall notify Landlord sooner if Tenant
has knowledge of its plans with regard to the Expansion Space prior to such
date. If Tenant does not exercise the Expansion Right by written notice to
Landlord given on or before December 20, 2001, Tenant shall be deemed to have
waived the Expansion Right and this Paragraph 19 shall be of no further force or
effect.
(C) Tenant recognizes that the Expansion Space is presently
occupied by Najarian Associates, Inc. ("Najarian"). If Tenant exercises its
Expansion Right, Landlord will have no less than six (6) months to relocate
Najarian, but agrees to use reasonable efforts, if possible, to seek to relocate
Najarian sooner. The commencement date for the Expansion Space will be the
earlier of the date on which (i) Landlord has obtained a certificate of
occupancy, temporary or permanent, permitting occupancy of the Expansion Space
by Tenant, or (ii) Tenant first occupies all or any portion of the Expansion
Space (the "Expansion Space Commencement Date").
(D) On and after the Expansion Space Commencement Date, all
the obligations, terms, and conditions under the Lease shall also apply to the
Expansion Space, as follows:
(1) All references in the Lease to the Demised Premises
shall be deemed to include the Expansion Space;
(2) The term for the Expansion Space shall be co-terminus
with the term for the remainder of the Demised Premises,
any exercise of Tenant's Extension Right shall be deemed
to include the entire Demised Premises, including the
Expansion Space and the calculation of fair market rent
for any extension term shall be based upon the entire
Demised Premises, including the Expansion Space;
(3) Commencing on the Expansion Space Commencement Date, the
Base Rent shall be increased by the following amounts
(prorated on a per diem basis for any period of less
than a full calendar month):
(1) Until the expiration of five years from the
Module E Commencement Date, the Base Rent
provided under Paragraph 4 of this Amendment
will be increased by the amount of ONE HUNDRED
FORTY EIGHT THOUSAND THREE HUNDRED SEVENTY FOUR
AND 20/100 ($148,374.20) DOLLARS payable
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in equal monthly installments of TWELVE THOUSAND
THREE HUNDRED SIXTY FOUR AND 52/100 ($12,364.52)
DOLLARS;
(2) For the sixth year after the Module E
Commencement Date (i.e., commencing on the fifth
anniversary of the Module E Commencement Date),
the Base Rent provided under Paragraph 4 of this
Amendment will be increased by the amount of ONE
HUNDRED FIFTY THREE THOUSAND THREE HUNDRED FIFTY
THREE AND 20/100 ($153,353.20) DOLLARS payable
in equal monthly installments of TWELVE THOUSAND
SEVEN HUNDRED SEVENTY NINE AND 43/100
($12,779.43) DOLLARS; and
(3) For the seventh year after the Module E
Commencement Date (i.e., commencing on the sixth
anniversary of the Module E Commencement Date),
the Base Rent provided under Paragraph 4 of this
Amendment by the amount of ONE HUNDRED FIFTY
EIGHT THOUSAND THREE HUNDRED THIRTY TWO AND
20/100 ($158,332.20) DOLLARS payable in equal
monthly installments of THIRTEEN THOUSAND ONE
HUNDRED NINETY FOUR AND 35/100 ($13,194.35)
DOLLARS;
(4) The security deposit will be increased by the amount of
$180,438.82, as provided in Paragraph 5(C) of this
Amendment;
(5) Tenant's proportionate share of common area maintenance
charges and taxes will be 53.53%;
(6) All other terms and conditions of the Lease will remain
in full force and effect.
(G) The Expansion Right is personal to the Tenant and shall
become null and void upon the occurrence of an
assignment of the Lease or a sublet of all or part of
the Leased Premises.
20. OPTION TO EXTEND: Paragraph 2.B of the Base Lease is deleted in
its entirety and replaced by the following:
Provided Tenant is not in default under any of the terms,
provisions, covenants and conditions of the Lease, and provided
that Tenant is in sole occupancy of the entire Demised Premises,
then upon the expiration of the term of this Lease Tenant shall
have the right to extend the term of the Lease for one (1)
extension period of
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five (5) years (the "First Extension Term"), followed by one (1)
extension period of three (3) years (the "Second Extension
Term"). Tenant shall have no right to the Second Extension Term
unless Tenant exercised the option for the First Extension Term.
Tenant's option to extend the term of the Lease shall be
exercisable by Tenant giving written notice of the exercise of
the extension right to Landlord at least twelve (12) months
prior to the expiration of the original term, or the First
Extension Term, as applicable. In the event Tenant fails to so
give written notice of its intent to exercise its extension
right as provided above, Tenant's option to extend the term of
the Lease shall be deemed to have been waived by Tenant and
shall be of no further force or effect. In the event Tenant
exercises its extension right in accordance with the provisions
hereof, the term of the Lease shall be extended accordingly, and
all the references contained in the Lease to the term, whether
by number of years or number of months, shall be construed to
refer to the original term of the Lease, as extended, whether or
not specific reference is made thereto in the Lease. Tenant
acknowledges that it is important for Landlord to know whether
or not the option is exercised by Tenant so that it may seek a
replacement tenant to avoid loss of rent. Accordingly, the time
within which the option must be exercised and the reply by
Tenant to Landlord's proposed fair market rent is hereby made of
the essence. Each extended term of the Lease shall be upon the
same terms, conditions, and covenants as set forth in the Lease
except:
(1) All provisions relating to the initial construction of
the Demised Premises shall be deleted and/or any
allowance by Landlord shall be deleted. (1)
(2) During the First Extension Term, Tenant's only Extension
Right shall be the option for the Second Extension Term.
There shall be no further right or option to extend the
term of the Lease during or after the Second Extension
Term.
(3) The Base Rent to be paid by Tenant during each extension
term shall be the fair market rent; provided that in no
event shall the annual Base Rent during the First
Extension Term be less than the Base Rent payable by
Tenant in the final year of the original term, nor shall
the annual Base Rent during the Second Extension Term be
less than the Base Rent payable by Tenant during the
final year of the First Extension Term, notwithstanding
that fair market rent may be lower. Fair market
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rent shall be determined for each extension term as
provided in Paragraph (iv) hereunder.
(4) Within thirty (30) days after Landlord receives Tenant's
notice exercising its extension option Landlord shall
submit to Tenant, in writing, its determination of fair
market rent for the applicable extension term. Within
thirty (30) days after Tenant receives the fair market
rental figure, Tenant shall have the right to dispute
the rent by written notice received by Landlord within
the thirty (30) day time period. Failure by Tenant to
dispute the rent in this manner shall be deemed,
automatically and conclusively, an acceptance by Tenant
of the rent submitted. Within thirty (30) days after
Landlord receives Tenant's notice disputing the rent,
Landlord and Tenant shall each designate an independent,
qualified commercial real estate broker with not less
than seven (7) years of experience, who regularly
conducts business in Monmouth County and who is familiar
with Monmouth County office/flex/warehouse rentals, for
the purpose of having them agree on the then current
fair market rent for the Demised Premises within
Monmouth County, New Jersey, for a term of the same
duration as the extension term at issue with similar
tenant expense assumptions and contributions. In the
event that the two designees cannot agree upon one
figure, then the designees shall select a third person
with comparable qualifications, and the agreement of two
of the three designees shall prevail, or if two cannot
agree, the average of their three rents shall prevail.
Landlord and Tenant shall each pay the fees and expenses
of their own designee, and they shall share, equally,
the fees and expenses of the third. The greater of (a)
the monthly Base Rent for the final year original term;
or (b) the fair market rent so determined, shall be the
Base Rent payable monthly for the First Extension Term.
The greater of (a) the monthly Base Rent for the final
year of the First Extension Term, or (b) the fair market
rent so determined, shall be the Base Rent payable for
the Second Extension Term. If Tenant gives notice of the
exercise of its option more than twelve (12) months
prior to the expiration of the original term, then
Landlord shall have until eleven (11) months prior to
the expiration of the original term or the First
Extension Term, as applicable, to submit its
determination of fair market rent. Landlord and Tenant
shall execute and
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deliver to each other a written statement of the rent
for the extended term when determined as herein
provided.
21. PARKING: Paragraph 24 of the Base Lease is supplemented to
provide that Tenant shall have the right to use a total 3.5 parking spaces for
every 1000 rentable square feet included in the Demised Premises (rounded down
to nearest whole number of spaces) for Tenant's employees and visitors. Such
parking spaces shall not be marked, designated or reserved in any way; provided,
however, that Landlord agrees to designate a reserved parking area for six (6)
of such spaces consisting of four (4) marked parking spaces for Tenant's
visitors and two (2) marked parking spaces for company-owned cars of Tenant.
Landlord shall not be obligate to enforce such designation.
22. SIGNAGE: Paragraph 25 of the Base Lease is supplemented to
provide that Landlord and Tenant will cooperate to create opportunity for
additional signage within Hovpark providing greater exposure for Tenant. The
parties recognize that this may require consultation with and site plan and/or
variance approvals from the Borough of Eatontown. Any additional signage will be
subject to Landlord's approval, which will not be unreasonably withheld.
Landlord will cooperate with Tenant and sign required applications for permits
and approvals, but without cost to Landlord. Any additional signage will be
constructed by Tenant at Tenant's sole cost and expense. At Landlord's option,
such additional signage will be removed by Tenant, at Tenant's cost and expense,
upon the expiration or earlier termination of this Lease, and any damage caused
by such removal, including but not limited to, damage to the facade or exterior
of the Building, shall be restored by Landlord, at Tenant's cost and expense, to
Landlord's satisfaction.
23. CERTAIN HAZARDOUS SUBSTANCES: (A) Tenant has advised Landlord of
the possible creation of certain substances which under certain circumstances
may have the potential to be explosive within the new laboratory space Tenant
intends to construct in the Module M Premises. Such substances, with maximum
quantities, are more fully described on Exhibit D attached hereto and made a
part hereof. Tenant's creation, use, storage and disposal of such substances
shall be at Tenant's sole cost, risk and expense; and Landlord shall have no
liability with respect thereto. Tenant shall take all steps required to prevent
the occurrence of any dangerous or hazardous condition or situation. Except as
shown on Exhibit D, Tenant shall not use, store, generate or dispose of
potentially explosive or extra-hazardous substances on the Demised Premises.
(B) Tenant agrees to obtain, maintain in full force and
effect, and comply with all required permits and approvals with regard to such
substances, including, but not limited to, zoning and other federal, state,
county and municipal permits and approvals, and to provide copies of all such
permits and approvals to Landlord. Tenant acknowledges that Landlord has made no
representation as to whether the creation, use, storage or disposal of such
substances is permitted under applicable law, nor as to whether all required
permits and approvals can be obtained. If the creation, use, storage or disposal
of such substances is not lawfully permitted, or if any required permit or
approval is not obtained or obtainable, this Lease shall nevertheless remain
unmodified
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and in full force and effect, except that Tenant shall not create, use, store or
dispose of any such substances on or about the Demised Premises.
(C) Tenant shall at all times comply with all required
safety, environmental and other precautions and requirements required by any
governmental agencies and/or good practices. Tenant agrees to provide any
information requested by Landlord's Mortgagee and insurance company of such
hazardous substances and to comply at Tenant's sole cost with the requirements
of Landlord's Mortgagee and insurance company. In the event of any increased
insurance cost as a result of Tenant's activities on Demised Premises, Tenant
shall pay such increased costs promptly upon request from Landlord. If Tenant is
permitted to create, store or use such substances on or about the Demised
Premises, then:
(i) Paragraph 13.G.2(A) of the Base Lease is amended to
increase the comprehensive general liability insurance
maintained by Tenant, and naming Landlord and Landlord's
Mortgagee as additional insureds, to a combined single
limit of $5,000,000; and
(ii) Paragraph 13.G.2 of the Base Lease is amended to add a
new Paragraph (D):
(D) Pollution Liability Insurance: Lessee shall maintain
and provide certificates of insurance for pollution
liability insurance coverage, in amounts and with
coverages of not less than $500,000 (or if reasonably
available, $1,000,000), naming Landlord and Landlord's
Mortgagee as additional insureds.
(D) In addition to, and without limiting, any obligations of
Tenant to indemnify Landlord under the Base Lease, Tenant agrees to defend (with
counsel acceptable to Landlord), indemnify and hold harmless Landlord,
Landlord's partners, principals, employees, representatives, attorneys and
agents, or any Mortgagee of Landlord (collectively, "Indemnified Parties"), from
and against any and all claims, liability, fines, penalties, damages, loss, cost
or expense, including but not limited to, reasonable attorneys' fees, for seen
or unforseen, criminal or civil, of any nature or description, arising out of or
related directly or indirectly to Tenant's creation storage, use or disposal of
such substances or their presence on or about the Demised Premises.
(E) Upon request of Landlord from time to time, Tenant
agrees to provide to Landlord a written certification from a duly qualified
officer as to the hazardous substances and quantities thereof on the Leased
Premises, including but not limited to the substances listed on Exhibit D.
Landlord shall further have the right, but not the obligation, upon reasonable
advance notice and at reasonable times, to inspect the Demised Premises with
respect to the use, storage, disposal and handling of the substances on Exhibit
D and other hazardous substances.
24. BROKER: Tenant acknowledges and represents that it has had no
discussion with any broker in connection with this lease amendment other than
John Schimpf and Gerard Crosbie.
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25. NO DEFENSES: Tenant represents and warrants to Landlord that as
of the date hereof, Tenant has no claims, offsets, or defenses to the payment
and performance of its obligations under the Base Lease. 1.
26. AUTHORITY: Landlord and Tenant represent and warrant to each
other, that they have the power and authority to execute, deliver and perform
the obligations contemplated by this Agreement and that this Agreement has been
duly authorized by all requisite corporate action, and upon execution will be a
valid and binding obligation, enforceable in accordance with its terms.
27. ENTIRE AGREEMENT: The Base Lease, as amended by the Letter
Amendment and this Amendment, constitutes the entire agreement between Landlord
and Tenant. Neither party has made any agreement, promise or representation
except as set forth in the Base Lease, the Letter Amendment and this Amendment.
28. HEADINGS: All headings in this amendment are for convenience of
reference only and shall not affect the interpretation of the provisions of this
Amendment.
29. EFFECT OF AMENDMENT: Except as specifically modified herein, all
of the terms and provisions of the Base Lease shall continue in full force and
effect. In the event of any conflict in the Base Lease and this Amendment to
Lease, the terms of this Amendment shall govern and prevail.
30. LENDER APPROVAL: This Amendment is subject to review and
approval by Landlord's Mortgagee. If Landlord's Mortgagee does not approve this
Amendment, then this Amendment shall be of no further force or effect, and the
parties shall be left to their rights under the Base Lease the Letter Amendment.
IN WITNESS WHEREOF, the parties have caused this amendment to Lease to
be signed by their proper corporate officers and the proper corporate seals to
be hereto affixed on the date first above written.
ATTEST OR WITNESS: TEN THIRTY-FIVE ASSOCIATES,
LIMITED PARTNERSHIP
BY: /s/ ARA K. HOVNANIAN
- --------------------------- -------------------------
NAME: ARA K. HOVNANIAN
ITS: GENERAL PARTNER
ATTEST OR WITNESS: MILLENNIUM CELL, LLC
BY: /s/ NORMAN R. HARPSTER, JR.
- --------------------------- ---------------------------
NAME: NORMAN R. HARPSTER, JR.
ITS: CHIEF FINANCIAL OFFICER
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EXHIBITS
B-1 Building Plan
C-1 Floor Plan of Module M
C-2 Floor Plan of Module E
D Schedule of Potential Explosive Substances
E Commencement Date Memorandum
F Form of Letter of Credit
STATE OF NEW JERSEY )
ss.:
COUNTY OF MONMOUTH )
I CERTIFY that on April ____, 2001, Ara K. Hovnanian personally appeared
before me and acknowledged under oath, to my satisfaction, that this person (or
if more than one person, each person):
(a) is a general partner of TEN THIRTY-FIVE ASSOCIATES, LIMITED
PARTNERSHIP, the partnership named in the attached instrument; and
(b) personally signed the attached instrument; and
(c) signed this instrument as his or her own act as such general partner
on behalf of, and as the voluntary act of, such partnership.
----------------------------
STATE OF NEW JERSEY )
ss.:
COUNTY OF MONMOUTH )
I CERTIFY that on _____________________, 2001, ________________________
personally appeared before me and this person acknowledged under oath, to my
satisfaction, that this person:
22
(a) signed the attached instrument as ______________________ of
MILLENNIUM CELL, LLC, the limited liability company named in this instrument;
and
(b) was authorized to execute the attached instrument on behalf of such
limited liability company; and
(c) executed the attached instrument as the voluntary act of such
limited liability company on behalf of, and as the voluntary act of, MILLENNIUM
CELL, LLC.
----------------------------
Notary Public
23
EXHIBIT B-1
BUILDING PLAN
Exhibit B-1 includes drawings of the building plan, with Module M, Module E and
the expanision space shaded.
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EXHIBIT C-1
FLOOR PLAN OF MODULE M
Exhibit includes drawings of floor plan of module M
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EXHIBIT C-2
FLOOR PLAN OF MODULE E
Exhibit includes drawing of floor plan of module E
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EXHIBIT D
SCHEDULE OF POTENTIAL EXPLOSIVE SUBSTANCES
SUBSTANCE QUANTITY PRODUCED COMMENTS
- --------- ----------------- --------
Diborane* 0.05 lbs/day Microreactor (Bench Scale Reactions)
1.4 lbs/day Process Demonstration Unit
* Diborane will not be stored on premises, but will be generated and consumed in
the production of sodium borohydride. Quantities produced will be consumed
immediately to make the end product of the reaction. Diborane will be the
limiting reagent so that there will not be unconsumed diborane.
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EXHIBIT E
COMMENCEMENT DATE MEMORANDUM
THIS AGREEMENT made the ______ day of __________________, by and between
____________________ ("Landlord") and __________________________("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a lease, dated as of
_________________, as amended by First Amendment to Lease (the "Amendment")
dated____________ (collectively, the "Lease"), setting forth the terms of
occupancy by Tenant of premises located at ________________________; and
WHEREAS, the Lease is for a term of seven (7) years from the Module E
Commencement Date, as defined in the Lease; and
WHEREAS, it has been determined by the parties in accordance with the
Amendment that ____________ ______, _____ is the _________________ Commencement
Date; and
WHEREAS, the parties desire to memorialize the Commencement and
Termination Dates of the term of the Lease, and any applicable option period(s),
if properly exercised.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and in the Lease, and for other good and valuable consideration, it is
hereby agreed that:
1. The _______________ Commencement Date is ____________________,
_____ and the Termination Date of the term of the Lease is
_________________. [DELETE REFERENCE TO TERMINATION DATE IF
MODULE E COMMENCEMENT DATE HAS NOT YET OCCURRED]
2. [IF APPLICABLE] The First Extension Period, if properly
exercised by Tenant, shall commence on ___________ and terminate
on ________________.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Memorandum as of
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the day and year first above written.
WITNESS/ATTEST: LANDLORD:
By:
- ------------------------------ -------------------------------
Name:
Title:
WITNESS/ATTEST: TENANT:
By:
- ------------------------------ -----------------------------
Name:
Title:
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EXHIBIT F
FORM OF LETTER OF CREDIT
BANK NAME
BANK ADDRESS
IRREVOCABLE LETTER OF CREDIT
REFERENCE NUMBER:___________
TRANSACTION DATE:___________
EXPIRATION DATES:
BENEFICIARY:
_____name____________
____address__________
_____________________
_____________________
Gentlemen:
We hereby open our irrevocable letter of credit in your favor for the account of
____________________________, in the aggregate amount of $__________________.00
(United States Dollars ________________________ and ____/100) available by
payment of your draft(s) at sight drawn on ourselves when accompanied by the
following document(s):
A statement purportedly signed by a person purporting to be an authorized
representative of ______[name]______ stating that ______{name]______ is entitled
to draw upon the letter of credit.
It is a condition of this letter of credit that it shall be deemed automatically
extended without amendment for one year from the present or any future expiry
date unless at least sixty (60) days prior to such expiration date, we notify
you in writing by certified mail or nationally recognized overnight express
courier that we elect not to renew this letter of credit for any such additional
one-year period. In any event this credit will not be automatically extended
beyond ______[estimated outside lease termination with extensions]___________.
If you receive notice of non-renewal, you may draw immediately by presentation
of your sight draft and the original letter of credit only.
This irrevocable letter of credit sets forth in full the terms of our
undertaking. This undertaking shall not, in any way, be modified, amended, or
amplified by reference to any document or contract referred to herein.
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We hereby agree with you that draft(s) drawn under and in compliance with the
terms and conditions of this credit shall be duly honored if presented together
with document(s) as specified and the original of this credit, at either of our
following locations:
______________[address in New Jersey]________________
Draft(s) drawn under this credit must state on their face "Draw Under
______[issuer name]______ Irrevocable Letter of Credit Number ________ dated
____________".
Partial drawings are permitted.
Except as otherwise expressly stated herein, this letter of credit is subject to
the uniform customs and practice for documentary credits, established by the
International Chamber of Commerce, as in effect on the date of issuance of this
credit.
Sincerely,
- ------------------------
Authorized Signature
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