EXHIBIT 10.7
LEASE AGREEMENT
BY AND BETWEEN
150 COLLEGE ROAD, LLC
AND
PHYSIOME SCIENCES, INC.
DATED
DECEMBER 21, 2000
FOR 150 COLLEGE ROAD WEST
PRINCETON, NEW JERSEY
TABLE OF CONTENTS
Page
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Section 1...........................................ERROR! BOOKMARK NOT DEFINED.
1.1. Demise of the Premises....................................... 1
1.2. License To Use Public Areas.................................. 1
1.3. Rentable Area................................................ 2
1.4. Term......................................................... 2
1.5. Use.......................................................... 3
Section 2....................................................................... 4
2.1. Base Rental.................................................. 4
2.2. Additional Rental............................................ 4
2.3. Rental Payments.............................................. 11
2.4. Security Deposit............................................. 12
Section 3....................................................................... 13
3.1. Services..................................................... 13
3.2. Governmental Regulations..................................... 15
3.3. Failure to Provide Required Services......................... 15
3.4. Additional Services.......................................... 16
3.5. Landlord's Obligation........................................ 16
Section 4....................................................................... 16
4.1. Care of the Premises......................................... 16
4.2. Entry for Repairs and Inspection............................. 17
4.3. Nuisance..................................................... 18
4.4. Laws and Regulations; Rules of the Building.................. 18
4.5. Hazardous Substances......................................... 19
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4.6. ISRA Compliance.............................................. 21
Section 5....................................................................... 25
5.1. Condition of the Premises and the Project.................... 25
5.2. Alterations to the Premises other Than Work
Pursuant to EXHIBIT D........................................ 25
5.3. Alterations to the Building.................................. 28
5.4. Access Cards................................................. 28
5.5. Graphics, Building Directory and Name........................ 29
Section 6....................................................................... 29
6.1. Condemnation................................................. 29
6.2. Damages from Certain Causes.................................. 31
6.3. Casualty..................................................... 31
Section 7....................................................................... 32
7.1. Property Insurance........................................... 32
7.2. Liability Insurance.......................................... 33
7.3. Hold Harmless; Mutual Indemnity.............................. 33
7.4. Waiver of Claims and Recovery Rights......................... 34
Section 8....................................................................... 35
8.1. Default by Tenant............................................ 35
8.2. Remedies..................................................... 36
8.3. Landlord's Right to Cure Defaults............................ 39
8.4. Non-Waiver................................................... 39
8.5. Holding Over................................................. 39
8.6. Landlord's Default........................................... 39
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Section 9....................................................................... 40
9.1. Assignment or Sublease by Tenant............................. 40
9.2. Assignment by Landlord....................................... 42
Section 10...................................................................... 42
10.1. Peaceful Enjoyment........................................... 42
10.2. Limitation of Landlord's Personal Liability.................. 42
10.3. Limitation of Interest Holder's Personal Liability........... 43
Section 11...................................................................... 43
11.1. Subordination................................................ 43
11.2. Estoppel Certificate......................................... 45
11.3. Right to Cure Landlord's Default............................. 46
11.4. Compliance With Certain Mortgagee Requirements............... 46
Section 12...................................................................... 47
12.1. Food Service Facility........................................ 47
12.2. Fitness Center............................................... 48
12.3. Name Change.................................................. 48
12.4. Legal Fees................................................... 48
Section 13...................................................................... 48
13.1. Notices...................................................... 48
13.2. Mailing Address.............................................. 50
13.3. Miscellaneous................................................ 50
EXHIBITS
EXHIBIT A DESCRIPTION OF LAND
EXHIBIT A-1 SITE PLAN OF PROJECT
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EXHIBIT B FLOOR PLANS OF THE PREMISES
EXHIBIT C DETERMINATION OF RENTABLE AREA
EXHIBIT D WORK LETTER
EXHIBIT E COMMENCEMENT DATE AGREEMENT
EXHIBIT F AIR CONDITIONING AND HEATING SERVICES
EXHIBIT G BUILDING RULES
EXHIBIT H JANITORIAL SPECIFICATIONS
EXHIBIT I LIST OF PARTICIPATING PLANS
EXHIBIT J NON-DISCLOSURE AGREEMENT
EXHIBIT K PARKING
EXHIBIT L RENEWAL OPTION
EXHIBIT M RIGHT OF SECOND OFFER
EXHIBIT N ANTENNA LICENSE
EXHIBIT O SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into by and
between 150 College Road, LLC, a Delaware limited liability company (the
"Landlord"), and PHYSIOME SCIENCES, INC., a corporation of the State of Delaware
(the "Tenant").
In consideration of the rentals reserved hereunder and the duties,
covenants and obligations of the other hereunder, Landlord and Tenant hereby
covenant and agree as follows:
1.
1.1. DEMISE OF THE PREMISES. Landlord hereby leases, demises and lets to
Tenant, and Tenant hereby leases and takes from Landlord, those certain premises
(hereinafter sometimes called the "Premises") consisting of the entire third
floor of the building known as 150 College Road West in Village South at
Princeton Forrestal Center which building is being developed as a Class A
building (the "Building") which is located at 150 College Road West, Plainsboro
Township (Middlesex County), New Jersey 08540 (hereinafter sometimes called the
"Land"). The Land is more particularly described on EXHIBIT A, and the Project
described and shown on EXHIBIT A-1 attached hereto and made a part hereof for
all purposes. A floor plan of the Premises is attached hereto and made a part
hereof for all purposes as EXHIBIT B. The Building, the Land, all surface
parking lots owned or controlled by Landlord and servicing the Building and any
such parking structures or parking lots constructed in the future on the Land
(the "Parking Facilities"), and such additional facilities or structures on the
Land to service any of the foregoing in subsequent years as may be necessary or
desirable in Landlord's reasonable judgment are hereinafter sometimes
collectively called the "Project." Landlord is the owner of the Project. The
term "Project" does not include any other buildings or structures not located on
the Land including but not limited to 100 College Road West.
1.2. LICENSE TO USE PUBLIC AREAS. Subject to Section 5.3 below, Landlord
hereby grants Tenant, its employees, invitees and other visitors, a nonexclusive
license for the term of this Lease and all extensions and renewals thereof to
use, for the purpose of ingress and egress to the Building, the Parking
Facilities, and the Premises, and in accordance with the Building Rules (as
hereinafter defined) (a) the sidewalks and other exterior common areas located
on the Land; and (b) the lobbies, public corridors and elevator foyers of the
Building as such areas are designated by Landlord from time to time for the
common use of the Building's tenants.
1.3. RENTABLE AREA. Landlord and Tenant stipulate and agree for all
purposes under this Lease that the Rentable Area (as set forth on EXHIBIT C
attached hereto and made a part hereof for all purposes) of the Premises is
25,338 rentable square feet, based upon the final Space Plan (as defined in
EXHIBIT D).
1.4. TERM.
(a) The term of this Lease shall commence on the date Landlord
receives a temporary or permanent certificate of occupancy for the Premises
(hereinafter the "Commencement Date"), which is expected to be on or before July
1, 2001, and, unless sooner terminated in accordance with the terms and
conditions set forth herein, shall expire on the last day of the one-hundred
twentieth (120th) full calendar month after the Commencement Date (the
"Expiration Date"). In the event, however, the Commencement Date would have
occurred on July 1, 2001 but is delayed by Tenant Delay as defined in EXHIBIT D,
the term of this Lease shall be deemed to have commenced on the Completion Date,
as defined in EXHIBIT D. In the event the Commencement Date has not occurred by
July 31, 2001, as a result of Landlord Delay, Landlord shall pay to Tenant
monthly a penalty equal to the actual incremental increase in Tenant's current
rental obligation due to Tenant's current holdover provision, not to exceed an
amount of $23,613 per month, every month until the Commencement Date. The term
"Landlord Delay" means the delay in completion of Tenant's Work caused by (a)
Landlord's failure to act or provide the responses described in the Work Letter
attached as EXHIBIT D within the time specified, or (b) any delay within
Landlord's control that is not Tenant Delay, or (c) any delay not due to an
event of force majeure, as defined in the following sentence. Delay due to fire,
catastrophe, strikes or labor trouble, civil commotion, acts of God, inability
in obtaining materials, or any other cause beyond Landlord's control, shall not
be considered a Landlord Delay and the period of such delay shall be added to
Landlord's time to achieve the Commencement Date, and Landlord shall have no
obligation to pay any penalty including Tenant's incremental holdover rent on
its current space because of such delay.
(b) EXHIBIT D is the Work Letter which shall be binding on the
parties in regard to Tenant's Work to be performed by Landlord.
(c) Tenant, at Landlord's request, shall execute an agreement (in
the form attached hereto as EXHIBIT E and made a part hereof for all purposes)
specifying, among other matters, the date upon which the Commencement Date
occurred. Landlord shall use commercially reasonable efforts to prepare and
deliver such agreement to Tenant within fifteen (15) days after the Commencement
Date and Tenant shall execute and deliver the agreement to Landlord within five
(5) business days of Tenant's receipt thereof.
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(d) Notwithstanding anything to the contrary set forth herein,
Tenant shall have the right to terminate this Lease if the Commencement Date has
not been achieved by December 31, 2001, plus the number of days of Tenant Delay,
as defined in EXHIBIT D, if any. In the event of such termination, any security
deposit furnished by Tenant pursuant to Section 2.4 of the Lease shall be
returned, or, in the case of a letter of credit, shall be terminated. In
addition, the Escrowed Funds, together with any interest earned, furnished
pursuant to Section 4.1 of the Work Letter shall be returned to Tenant.
1.5. USE.
(a) The Premises are to be used and occupied by Tenant (and its
assignees and subtenants permitted hereunder) solely for general office use
including non-laboratory research and development of pharmaceuticals. Without
limiting the foregoing, the Premises shall not be used for any purpose which
would tend to lower the first-class character of the Building, or create
excessive elevator loads and/or usage, or increase wear and tear on the
Building's mechanical, electrical and plumbing systems, or increase the
Building's maintenance and/or janitorial services or otherwise interfere with
standard Building operations, and Tenant shall not engage in any activity which
is not in keeping with the written standards of the Building as furnished to
Tenant. Tenant shall not be allowed to (i) have more than five (5) persons per
one thousand (1,000) square feet of Rentable Area occupy the Premises without
consent of the Landlord (except for conferences, luncheons and other similar
occasional functions in the ordinary course of Tenant's business), (ii) operate
separate shifts of employees from the Premises (other than persons to operate
Tenant's computer facilities and a limited number of other employees who may
work so that the Premises are occupied twenty-four (24) hours a day seven (7)
days a week), (iii) use the space for the purpose of providing telemarketing
services other than telemarketing services and telephone customer support in the
normal course of Tenant's business, (iv) use the space as a consular office for
any foreign government, or (v) use the space as an office for any governmental
or regulatory authority, agency or bureau.
(b) Tenant shall not occupy or use the Premises, or permit any
portion of the Premises to be occupied or used, for any business or purpose
which is unlawful or deemed to be hazardous on account of fire or other hazards,
or permit anything to be done which would in any way increase the rate of fire
or liability or any other insurance coverage on the Building and/or its
contents, or which would produce strong, unusual or offensive odors, fumes, dust
or vapors, or that is a public or private nuisance, or that emits noise or
sounds that are objectionable to a person of reasonable judgment due to
intermittence, beat, frequency, shrillness or loudness. Tenant shall not permit
any cooking within the Premises except the use of a
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microwave oven. Tenant agrees that no more than three food, soft drink or other
vending machines may be installed within the Premises without the written
consent of Landlord. The location of any vending machines is subject to
Landlord's approval and shall not be visible from Building common areas or the
exterior of the Building. The Building is a "non-smoking" Building. Tenant
agrees that no smoking is allowed in the Premises or in-the Public Areas of the
Building. "Public Areas" shall include but are not limited to: Building lobbies,
elevators, elevator lobbies, corridors, restrooms, mailrooms, public break
rooms, stairwells, fitness center and food service facility.
2.
2.1. BASE RENTAL. Tenant hereby covenants and agrees to pay to Landlord as
partial consideration for Tenant's use and occupancy of the Premises a base
annual rental (the "Base Rental"), which Base Rental shall be payable in monthly
installments in advance on the first day of each month beginning on the
Commencement Date in accordance with the following schedule:
Rate per Square Foot
Time Period of Rentable Area Annual Base Rental Monthly Installment
- --------------- -------------------- ------------------ -------------------
Months* 1 - 60 $ 30.75 $ 779,143.50 $ 64,928.63
Months 61 - 120 $ 34.50 $ 874,161.00 $ 72,846.75
* TABLE REFERS TO FULL MONTHS AND EXCLUDES ANY PARTIAL MONTH AT THE
COMMENCEMENT OF THE LEASE TERM.
Tenant shall also pay Base Rental for that portion of the month in which the
Commencement Date occurs. In addition to Base Rental Tenant shall pay Tenant
electric as set forth in paragraph 3.1(f).
2.2. ADDITIONAL RENTAL.
(a) In addition to the Base Rental for each calendar year (or
portion thereof) during the term of this Lease, Tenant shall pay as additional
rent (the "Additional Rental") Tenant's Proportionate Share (as hereinafter
defined) of the Operating Expenses (as hereinafter defined) for that year in
excess of the Base Operating Expenses (as hereinafter defined) and Tenant's
Proportionate Share of the Real Estate Taxes in excess of the Base Real Estate
Taxes (as hereinafter defined) for that year. Within ninety (90) days of the
beginning of each calendar year during the term of this Lease, Landlord shall
deliver to Tenant Landlord's good faith estimate (the "Estimated Additional
Rental") of the Additional Rental for that year. The Estimated Additional Rental
shall be paid in equal installments in advance on the first day of each month.
If Landlord
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does not deliver an estimate to Tenant for any year by January 1 of that year,
Tenant shall continue to pay Estimated Additional Rental based on the prior
year's estimate. From time to time during any calendar year, Landlord may revise
its estimate of the Additional Rental for that year based on either actual or
reasonably anticipated increases in Operating Expenses or Real Estate Taxes, and
the monthly installments of Estimated Additional Rental shall be appropriately
adjusted for the remainder of that year in accordance with the revised estimate
so that by the end of the year, the total payments of Estimated Additional
Rental paid by Tenant shall equal the amount of the revised estimate. The
Estimated Additional Rent may be increased no more than two (2) times during any
calendar year.
(b) "Base Year" means calendar year 2001. If the Commencement Date
falls on or after September 1, 2001, the "Base Year" shall be calendar year
2002.
(c) "Base Real Estate Taxes" shall mean Real Estate Taxes of $3.35
per rentable square foot multiplied by the aggregate Rentable Area of the
Building for the calendar year 2001.
(d) "Tenant's Proportionate Share" means the percentage determined
by dividing the actual Rentable Area contained within the Premises by the
aggregate Rentable Area of the space within the Building, which percentage is
35.76%. Landlord and Tenant hereby stipulate and agree for all purposes under
this Lease that the aggregate Rentable Area of the Building is 70,850 square
feet, notwithstanding any different measurement thereof that may be made
hereafter by or on behalf of either party.
(e) "Operating Expenses" shall mean all expenses, costs and
disbursements of every kind and nature, computed on an accrual basis, incurred
in connection with the ownership, operation, maintenance and repair of the
Project, excluding only the costs and expenses described in Section 2.2(f)
below. The Expense Statement defined do Section 2.2(h) below shall identify and
reflect any and all credits due Tenant as the result of any refund, credit, or
other income that Landlord receives as to any Operating Expense. Without
limiting the generality of the foregoing, Operating Expenses include the
following, provided that in the event that any of the following are provided or
rendered for or as to buildings and/or property other than the Project owned or
operated by Landlord or its affiliates, then the costs of any of the following
shall be allocated to Operating Expenses by Landlord for the Project, and the
operating expenses of such other buildings or property, on a reasonably
equitable basis consistent with other relevant provisions of this Lease:
(i) Wages and salaries of all persons (up to and including the
level of building manager) directly engaged in the
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operation, maintenance, cleaning, security or access control for the Project,
including taxes, insurance and benefits relating thereto.
(ii) All supplies, tools, equipment and materials used in the
operation and maintenance of the Project, and the reasonable rental value of
space which may be leased in the Building (which will be approximately 1,000
square feet initially) or space leased elsewhere, which space is used as a
Building management office. The costs of such space shall be allocated to the
buildings which are managed out of such office.
(iii) Cost of all utilities for the Project, including but not
limited to the cost of water, sewer, gas, electricity, telephone and cable
service other than utilities paid for directly by the Tenant or other tenants in
the Building.
(iv) Cost of all maintenance and service agreements for the
Project and the equipment therein, including but not limited to security
service, window cleaning, snow and ice removal, elevator maintenance, janitorial
service and landscaping maintenance.
(v) Cost of repairs and general maintenance for the Project
(excluding repairs and general maintenance costs that are paid by proceeds of
insurance or by Tenant or other third parties).
(vi) Amortization of the cost of installation of capital
investment items that are hereafter installed for the purpose of reducing
Operating Expenses (for expenditures that reduce Operating Expenses, the amounts
included in operating Expenses shall be limited to actual savings realized), to
improve Building life-safety systems or which may be required by any laws,
ordinances, orders, rules, regulations and requirements hereafter enacted. All
such costs which relate to the installation of such capital investment items
shall be amortized over the reasonable life of the capital investment item.
(vii) The cost of all insurance relating to the Project, as
set forth in Sections 7.1 and 7.2 hereof.
(viii) All property management fees (which shall not be in
excess of the greater of (1) three (3%) percent of gross Rent or (2) a
percentage which equals five (5%) percent higher than the market management fees
in the Princeton area).
(ix) All operating expenses, costs, lease payments, and
recoveries in connection with the food service facility and the fitness center
as provided for in Sections 12.1 and 12.2.
(f) Landlord hereby agrees that the term "Operating Expenses"
shall not include any of the following expenses:
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(i) debt service, including any fees or commissions associated
therewith, or rentals under any ground lease;
(ii) costs for which Landlord is entitled to specific
reimbursement as a separate charge by Tenant, by any other tenant of the
Building or by any other third party;
(iii) costs incurred by Landlord in connection with procuring
new tenants or the negotiation of any tenant lease in the Project, including
leasing commissions, legal fees, leasehold improvements expenses (and/or
allowances therefor), advertising and promotions (excluding holiday parties and
similar activities provided to all tenants in the Building);
(iv) any other costs and expenses for services, amenities or
materials that are specifically for the benefit of a particular tenant and that
are of a nature not generally provided to all tenants in the Building;
(v) except as set forth in Section 2.2(e)(vi) above,
expenditures classified as capital expenditures for federal income tax purposes
or any non-cash charges such as depreciation or amortization.
(vi) repairs or other work occasioned by fire, windstorms, or
other insured casualty or hazard, to the extent that Landlord shall receive
proceeds of such insurance.
(vii) repairs or rebuilding necessitated by condemnation or
casualty.
(viii) all the items set forth in Section 2.2(e) (i) with
respect to any person above the level of building manager.
(ix) repairs of a structural nature not otherwise permitted to
be included under Section 2.2(e)(vi) as an Operating Expense.
(x) legal costs incurred by Landlord in enforcing the
obligations of, or otherwise related to, other tenants in the Building.
(xi) The cost of any items for which Landlord is reimbursed by
insurance or otherwise compensated by parties other than tenants of the Building
pursuant to clauses similar to those contained in this Lease.
(xii) Any expenses other than property management (see
2.2(e)(viii)) representing an amount paid to a Landlord-related
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corporation, entity or person which are in excess of the amount which would be
paid in the absence of such relationship.
(xiii) Services provided for the exclusive benefit of other
tenants of the Building, but not Tenant.
(xiv) All costs for which Tenant or any other tenant in the
Building is being charged other than pursuant to provisions similar to the
operating expense clauses in this Lease.
(xv) The costs of overtime or other expense to Landlord in
curing its defaults, or in performing work expressly provided in this Lease to
be borne at Landlord's expense that are otherwise not Operating Expenses.
(g) All federal, state, county or municipal taxes, assessments,
fees, impositions, levies and governmental charges relating to the Project,
whether paid directly by Landlord or through an escrow arrangement with a
mortgagee or ground lessor, and whether they be by taxing districts or
authorities presently taxing or assessing the Project or by others subsequently
created or otherwise, and any other taxes, assessments, fees, impositions,
levies, and governmental charges attributable to the Project or its operation,
excluding, however, federal and state taxes on income, death taxes, franchise
taxes, and any taxes imposed or measured on or by the income of Landlord from
the operation of the Project; provided, however, that if at any time during the
term of this Lease, the present method of taxation or assessment shall be so
changed that the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate and the
improvements thereof shall be discontinued and as a substitute therefor, or in
lieu of an addition thereto, taxes, assessments, levies, impositions or charges
shall be levied, assessed and/or imposed wholly or partially as a capital levy
or otherwise on the rents received from the Project or the rents reserved herein
or any part thereof, then such substitute or additional taxes, assessments,
levies, impositions or charges, to the extent so levied, assessed or imposed,
shall be deemed to be included within Real Estate Taxes to the extent that such
substitute or additional tax would be payable if the Project, were the only
property of Landlord subject to such tax. The foregoing is hereinafter referred
to as "Real Estate Taxes." It is agreed that Tenant will be responsible for ad
valorem taxes on its personal property and on the value of the Leasehold
Improvements in the Premises (as defined in Section 5.1 of the Lease) to the
extent that the same exceed Building standard allowances (and if the taxing
authorities do not separately assess Tenant's Leasehold Improvements, Landlord
may make a reasonable allocation of the ad valorem taxes assessed on the Project
to give effect to this sentence). Provided, however, Tenant shall not be
responsible for any taxes on the value of other tenants' Leasehold Improvements
to the extent that such
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other tenants' Leasehold Improvements exceed Building standard allowances,
unless the taxing authorities do not separately assess such tenants' Leasehold
Improvements and Landlord does not make any allocation of taxes assessed on the
Project. If the Landlord shall receive any tax refund, rebate recovery, or the
like in respect of any lease year, Landlord may deduct therefrom any actual
expense incurred in obtaining such tax relief and out of the remaining balance
Landlord shall promptly pay the Tenant's Proportionate Share to the Tenant. Upon
Tenant's request, Landlord shall provide Tenant with a written accounting in
reasonable detail as to any payment due pursuant to the immediately preceding
sentence.
(h) Within one hundred fifty (150) days after the end of each
calendar year during the term of this Lease, Landlord shall provide Tenant a
statement ("Expense Statement") showing the Base Year Operating Expenses, Base
Real Estate Taxes, and Operating Expenses and Real Estate Taxes in excess of the
Base Year Operating Expenses and Base Real Estate Taxes respectively for said
calendar year, prepared in accordance with generally accepted accounting
principles, and a statement prepared by Landlord comparing Estimated Additional
Rental paid by Tenant with Additional Rental for such calendar year. For the
balance of calendar year 2001 the Expense Statement shall only show Base Year
Operating Expenses, Base Real Estate Taxes, and actual Real Estate Taxes in
excess of Base Real Estate Taxes. In the event that Estimated Additional Rental
paid by Tenant exceeds the amount of Additional Rental for said calendar year,
Landlord shall pay Tenant an amount equal to such excess at Tenant's option, by
either giving a credit against rentals next due, if any, or by direct payment to
Tenant within thirty (30) days of the date of such Expense Statement. In the
event that the Additional Rental exceeds estimated Additional Rental paid by
Tenant for said calendar year, Tenant shall pay the difference to Landlord
within thirty (30) days of receipt of the Expense Statement. The provisions of
this Section 2.2(h) shall survive the expiration or termination of this Lease.
In regard to Operating Expenses, Tenant shall not be required to pay any excess
of Additional Rental over Estimated Additional Rental unless it has received the
Expense Statement in regard to such Operating Expenses within twelve (12)
calendar months of the end of the calendar year to which the Expense Statement
applies. With regard to Real Estate Taxes Landlord must notify Tenant within
twelve (12) months of receipt of any notification from any taxing authority
regarding an adjustment in Real Estate Taxes.
(i) If the actual Operating Expenses for any calendar year are less
than the Operating Expenses for the Base Year, Tenant shall not be entitled to
any credit or refund for such difference, except that if the Real Estate Taxes
for the Building are less than $3.35 per square foot during any calendar year of
the Lease, Tenant shall receive a credit equal to the difference between the
actual Real Estate Taxes and the $3.35 per square foot, pro rata.
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(j) Notwithstanding any other provision herein to the contrary, it
is agreed that if the Building is less than ninety-five percent (95%) occupied
during any calendar year (or portion thereof), an adjustment shall be made in
computing each component of the Operating Expenses, including Real Estate Taxes,
that actually varies with the rate of occupancy of the Building for that year
(including the Base Year and Base Real Estate Taxes) so that the total Operating
Expenses and Real Estate Taxes shall be computed for such year as though
ninety-five (95%) percent of the Building had been occupied during such year.
(k) Tenant shall have the right to request, review and copy, at
Tenant's expense, Landlord's books and records regarding the determination of
Operating Expenses for the calendar year that is the basis of an Expense
Statement only upon written notice to Landlord and scheduling an appointment in
advance. Such notice must be delivered within thirty (30) days following
Landlord's delivery of the Expense Statement to Tenant and such review performed
within ninety (90) days following Tenant's written notice to Landlord. Any such
review shall be conducted during normal business hours at Landlord's office in
Houston, Texas, or at Tenant's option, at such other office as reasonably
designated by Landlord within the New York-New Jersey metropolitan area. Any
party conducting the review must be a certified public accountant on Tenant's
staff or with an accounting firm duly licensed in its state(s) of operation,
reasonably acceptable to Landlord, which approval shall not be unreasonably
withheld. Tenant may not have such review performed on a contingency fee basis.
In the event that Landlord and Tenant confirm pursuant to an Expense Statement
or Landlord's acceptance (subject to dispute resolution below) of the results of
Tenant's review (as applicable) that Estimated Additional Rental paid by Tenant
exceeds Additional Rental for said calendar year, Landlord shall pay Tenant an
amount equal to such excess at Landlord's option, by either giving a credit
against Rent next due, or by direct payment to Tenant within thirty (30) days of
the date of such Expense Statement or acceptance. Notwithstanding the foregoing,
if no Event of Default has occurred and is continuing and Tenant requests a
refund rather than a credit from Landlord in writing, Landlord shall refund said
amount to Tenant within thirty (30) days of Landlord's receipt of Tenant's
request. In the event that the Additional Rental exceeds Estimated Additional
Rental for said calendar year, Tenant shall pay the difference to Landlord
within thirty (30) days of receipt of the Expense Statement. If Tenant does not
object in writing to an Expense Statement within one hundred twenty (120) days
following the date thereof, specifying the nature of the item(s) in dispute and
the reasons therefor, then the Expense Statement shall be considered final and
accepted by Tenant. Any amount due to Landlord as shown on an Expense Statement,
whether or not disputed by Tenant as provided herein shall be paid by Tenant
when due as provided in Section 2.02(a) above, without
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prejudice to any such written exception pending resolution thereof. The results
of any such review shall be held in strict confidence by Tenant and its
representatives. If Landlord disputes the review, both parties shall within
twenty (20) days agree upon a neutral third party certified public accountant
whose determination shall be binding upon both parties. If it is finally
determined that Tenant overpaid Additional Rental by more than five (5%)
percent, then Landlord shall pay all reasonable costs of Tenant incurred in such
proceeding; Tenant shall pay all of Landlord's expenses incurred in connection
with such proceeding if it is finally determined that Tenant either underpaid or
overpaid Additional Rent by less than five (5%) percent. The provisions of this
subsection (i) shall survive the expiration or termination of this Lease.
2.3. RENTAL PAYMENTS.
(a) Tenant hereby covenants and agrees to pay the Base Rental and
Estimated Additional Rental (collectively, the "Stated Rentals") and all other
sums of money as shall become due from and payable by Tenant to Landlord under
this Lease inclusive of the exhibits hereto (collectively, "Rent") in lawful
money of the United States or by wire transfer to Landlord at Landlord's address
as provided herein (or to such other persons or at such other address(es) as may
be designated by Landlord in writing from time to time) monthly in advance on
the first day of each month.
(b) If the term of this Lease as described above commences on other
than the first day of a calendar month or terminates on other than the last day
of a calendar month, then the installments of Stated Rentals for such month or
months shall be prorated and the installment or installments so prorated shall
be paid in advance. The payment for such prorated month shall be calculated by
multiplying the monthly installment by a fraction, the numerator of which shall
be the number of days of the lease term occurring during said commencement or
termination month, as the case may be, and the denominator of which shall be the
total number of days occurring in said commencement or termination month.
(c) Tenant shall pay all Rent at the times and in the manner
provided in this Lease, without demand, set-off or counterclaim. Tenant hereby
acknowledges and agrees that except as otherwise provided in this Lease,
Tenant's covenants to pay Rent under this Lease are separate and independent
from Landlord's covenant to provide services and other amenities hereunder.
(d) In the event any Rent is not paid when due, then Landlord and
Tenant agree that Landlord will incur additional administrative expenses, the
amount of which will be difficult, if not impossible to determine. Accordingly,
in addition to the obligation to pay Rent, Tenant shall pay to Landlord a late
charge
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for such late payment in the additional amount of four percent (4%) of the
amount of such late payment of Rent, except in the case of the first instance of
lateness within any period of 12 consecutive calendar months, in which case said
four (4%) percent late charge shall be due and owing only in the event Landlord
has provided Tenant with written notice of such late payment, and Tenant has not
made the payment within five (5) calendar days after receipt of said notice.
(e) All Rent shall bear interest from the date due until paid at a
rate (the "Default Rate") equal to five (5%) percent above the Prime Rate
reported in the Money Rates column or section of the most recent issue of The
Wall Street Journal ("Prime Rate"), automatically adjusting with each change in
the Prime Rate.
2.4. SECURITY DEPOSIT. On the date of execution of this Lease by Tenant,
there shall be due and payable by Tenant a security deposit in an amount equal
to 20 monthly installment(s) of the initial Base Rental, such deposit to be held
for the performance by Tenant of Tenant's covenants and obligations under the
Lease, it being expressly understood that the deposit shall not be considered an
advance payment of Rent or a measure of Landlord's damages in case of default by
Tenant. Upon the commencement of the second lease year, Landlord will reduce the
security deposit by three (3) months per year until the security deposit is
equal to three (3) months of Base Rental. The security deposit may be in the
form of cash or a letter of credit from a bank, and in form, satisfactory to
Landlord.
Upon the occurrence of any Event of Default by Tenant under this Lease,
Landlord may, from time to time, without prejudice to any other remedy, use the
security deposit to the extent necessary to make good any arrears of Rent or
other payments hereunder and/or any damage, injury, expense or liability caused
to Landlord by such event of default or breach of covenant. Following any such
application of the security deposit, Tenant shall pay to Landlord on demand the
amount so applied in order to restore the security deposit to the amount thereof
existing prior to such application. Any remaining balance of the security
deposit shall be returned by Landlord to Tenant within thirty (30) days after
the termination of this Lease; provided, however, Landlord shall have the right
to retain and expend such remaining balance (a) to reimburse Landlord for any
and all Rent or other sums due hereunder that have not been paid in full by
Tenant and/or (b) for cleaning and repairing the Premises if Tenant shall fail
to deliver same at the termination of this Lease in a neat and clean condition
and in as good a condition as existed at the date of possession of same by
Tenant, ordinary wear and tear only excepted. If the security deposit is applied
twice by Landlord during the Lease term, following the second application,
Landlord may require Tenant to restore the depleted security deposit plus an
additional security deposit equal to two (2) additional monthly installments of
Stated Rentals at the rate payable for the first month of the Lease term.
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3.
3.1. SERVICES. Provided no Event of Default (as hereinafter defined) has
occurred and is continuing hereunder, and subject to the provisions of Sections
3.2 and 3.3 below, Landlord shall furnish the following services and amenities
(collectively, the "Required Services") to Tenant (and its assignees and
subtenants permitted hereunder) while occupying the Premises:
(a) Tempered and cold domestic water at those points of supply
provided for general use of the tenants of the Building;
(b) Central heat, ventilation and air conditioning, at such times,
at such temperatures and in such amounts, all as more particularly described on
EXHIBIT F attached hereto and made a part hereof for all purposes. Landlord will
pay the expenses of maintenance and operating the heating and air conditioning
equipment which shall be an Operating Expense.
(c) Electric lighting service for all public areas of the Building,
Project and service areas of the Building in the manner and to the extent deemed
by Landlord to be in keeping with the standards of other first class office
buildings of comparable age and size in the office market area in which the
Building is located.
(d) Janitorial service comparable to that provided by landlords of
other class A office buildings (including, but not limited to, bonding) of
comparable age and size in the office market in which the Building is located
and consistent with other similar tenants in the Building on a five (5) day per
week basis in accordance with the specifications set forth in EXHIBIT H attached
hereto; provided, however, if Tenant's floor coverings or other improvements
require special cleaning or care in excess of that provided for by Landlord in
EXHIBIT H, Landlord will provide such additional cleaning or care only upon
special agreement with Tenant; it being understood and agreed at Tenant's
request that Landlord will not provide any janitorial service for Tenant's
computer room or executive offices which are locked and not accessible for such
service at any time. Any discernable reduction, as determined by Landlord, in
janitorial expenses as a result of Landlord not providing for cleaning of
Tenant's computer room and such locked offices shall be passed through to Tenant
as reduction in Additional Rent. Tenant shall provide such janitorial services
either by its own employees or by separate arrangement with Landlord's cleaning
service. Tenant shall not be permitted to retain any third party janitorial
service for the Premises.
(e) On-site security equipment for the Building perimeter; provided,
however, that Tenant agrees that Landlord shall not be
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responsible for the adequacy or effectiveness of such security equipment;
(f) Electricity during normal operating hours as provided in EXHIBIT
D. Electricity for the Premises (other than electricity for the common areas and
HVAC) will be separately metered, invoiced directly to Tenant by the utility
provider, and paid for by the Tenant directly to the utility provider. If any
electrical equipment requires air conditioning in excess of Building standard as
reasonably determined by Landlord's engineer, the same shall be installed with
applicable meters, at Tenant's expense and Tenant shall pay all operating costs
relating thereto, including, without limitation, any additional maintenance,
repairs and utilities related to such electrical equipment and above Building
standard air conditioning equipment. In the event Landlord receives a special
bulk rate from the utility company, Tenant shall receive the benefit of such
bulk rate.
(g) On-site management (i.e., building personnel located within one
(1) mile, of the Building) by an affiliate of the Patrinely Group, LLC, or by a
third party selected by the Patrinely Group, as long as Landlord controls the
Building;
(h) Non-exclusive passenger elevator service to the Premises
twenty-four (24) hours per day;
(i) Maintenance and repair of the roof, exterior walls, load-bearing
columns, foundation, floor slabs, and other structural components and base
building components of the Project including but not limited to the following:
mechanical, electrical and plumbing systems of the Project, common areas, public
restrooms, restrooms on multi-tenant floors, parking area, and exterior lighting
and landscaping of the Project;
(j) Reasonably complete and prompt snow and ice removal for the
Building and parking area (including salting of walks) during the operating
hours of the Building.
(k) In the event of deregulation of any utility services, Landlord
will use reasonable efforts to obtain service from the lowest cost provider as
long as that provider is deemed in Landlord's sole judgment to be reliable and
capable of delivering such service.
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3.2. GOVERNMENTAL REGULATIONS. The obligations of Landlord to provide the
Required Services shall be subject to governmental regulation thereof (i.e.,
rationing, temperature control, etc.) and any such regulation that impairs
Landlord's ability to provide the Required Services as herein stipulated shall
not constitute a default hereunder but rather providing the applicable Required
Services to the extent allowed pursuant to such regulations shall be deemed to
be full compliance with the obligations and agreements of Landlord hereunder.
3.3. FAILURE TO PROVIDE REQUIRED SERVICES. To the extent any of the
Required Services require electricity, gas and water supplied by public
utilities or others, Landlord's covenants hereunder shall only impose on
Landlord the obligation to use its good faith efforts to cause the applicable
public utilities or other providers to furnish the same. Failure by Landlord to
furnish any of the Required Services to any extent, or any cessation thereof,
due to failure of any public utility or other provider to furnish service to the
Building, or any other cause beyond the reasonable control of Landlord, shall
not render Landlord liable in any respect for damages to either person or
property, nor be construed as an eviction of Tenant, nor result in an abatement
of Rent, nor relieve Tenant from fulfillment of any covenant or agreement
hereof. In the event of any failure by Landlord to furnish any of the Required
Services to any extent, or any cessation thereof, due to malfunction of any
equipment or machinery, or any other cause within the reasonable control of
Landlord, Tenant shall have no claim for rebate of Rent or damages on account
thereof, provided that Landlord utilizes its commercially reasonable efforts to
promptly repair said equipment or machinery and to restore said Required
Services as soon thereafter as is reasonably practicable. Notwithstanding the
previous sentence, in the event due to causes within the reasonable control of
Landlord, the HVAC or electricity to the Premises is terminated or substantially
reduced such that the Premises are rendered untenantable in the reasonable
determination of Landlord and Tenant for seven (7) consecutive days, then Base
Rent shall abate on a per diem basis until such services are restored in a
manner reasonably consistent with the level of such HVAC or electrical services
provided prior to the event giving rise to the abatement. In no event shall
there be any abatement if the problem with the HVAC or the electrical services
was caused in whole or in part by Tenant, its agents, employees, contractors,
sublessees or licensees or if Tenant's sublessees or licensees are not entitled
to rent abatement from Tenant.
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3.4. ADDITIONAL SERVICES. Tenant hereby acknowledges and agrees that
Landlord is obligated to provide only the Required Services under this Lease,
and that Landlord, its agents and representatives, have made no representations
whatsoever of any additional services or amenities to be provided by Landlord
now or in the future under this Lease. Notwithstanding the foregoing, Tenant
recognizes that Landlord may, at Landlord's sole option, elect to provide
additional services or amenities for the tenants of the Building from time to
time, and hereby agrees that Landlord's discontinuance of any provision of any
such additional services or amenities shall not constitute a default of Landlord
under this Lease nor entitle Tenant to any abatement of or reduction in Rent.
3.5. LANDLORD'S OBLIGATION. Subject to the provisions of this Lease and
provided no Event of Default has occurred and is continuing hereunder, Landlord
agrees (as an Operating Expense) to keep and maintain the Project in a manner
and at levels reasonably consistent with other first-class office buildings of
comparable age and size in the Princeton, New Jersey office market which
obligation includes the common areas of the Building and Project and the
structural portions of the Building, taking into consideration normal wear and
tear. Furthermore, Landlord agrees to make reasonable efforts to give to Tenant
reasonable advance notice (except in the event of any matter reasonably
considered by Landlord to be an emergency) of any planned shutdowns of services
materially affecting in Landlord's reasonable judgment, Tenant's use of the
common areas or the Premises.
4.
4.1. CARE OF THE PREMISES.
(a) Tenant shall not commit or allow to be committed any waste or
damage to any portion of the Premises or the Building, and shall at its own cost
and expense, maintain the Premises in good condition and repair. If Tenant fails
to make required repairs or replacements to the Premises promptly, Landlord may,
at its option upon three business (3) days prior written notice to the Tenant,
except in the event of an emergency as determined in the sole discretion of
Landlord, make such repairs or replacements, and Tenant shall repay the cost
thereof plus a charge of fifteen percent (15%) to Landlord on demand. Tenant
shall not undertake the repair or replacement of any damage or injury to the
structural components of the Building or its mechanical, electrical or plumbing
systems caused by Tenant, its agents, contractors, employees, invitees or
visitors, but shall reimburse Landlord for all costs and expenses incurred in
effecting any such repair or replacement, plus a charge of fifteen percent
(15%).
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(b) Unless otherwise expressly stipulated herein, Landlord shall not
be required to make any improvements to or repairs of any kind or character to
the Premises during the term of this Lease.
(c) Upon termination of this Lease, by lapse of time or otherwise,
Tenant shall, subject to the provisions of Section 5.2(c), deliver up the
Premises to Landlord in as good condition as existed on the Commencement Date,
ordinary wear and tear, casualty not caused by Tenant and condemnation only
excepted. Upon such termination of this Lease, Landlord shall have the right to
re-enter and resume possession of the Premises.
4.2. ENTRY FOR REPAIRS AND INSPECTION. Tenant shall permit Landlord and
its contractors, agents or representatives to enter into and upon any part of
the Premises at all reasonable hours and upon reasonable notice (except for
entry after-hours for cleaning and in the case of emergency, in which events no
notice shall be required) to inspect or clean the same, to make repairs,
alterations or additions thereto, to show the same to prospective lenders or
purchasers to determine whether Tenant is performing its obligations hereunder
or for any other purpose as Landlord may deem necessary or desirable and, during
the last twelve (12) months of the initial term (so long as Tenant has not
exercised its option to renew the Lease) or any extension thereof, to show the
same to prospective tenants. Notwithstanding the foregoing, the computer room(s)
shall be entered only in the event of an emergency, or for a prospective
purchaser or lender with the prior approval of Tenant (which approval shall not
be unreasonably withheld), and provided a representative of Tenant shall have a
right to be present. Landlord agrees to exercise reasonable good faith efforts
(i) to prosecute completion of any work within the Premises diligently, (ii) to
minimize interference with Tenant's use, access, occupancy, safety and quiet
enjoyment of the Premises, and (iii) to protect Tenant's property located in the
Premises from damage. Entry to the Premises and the conduct of work therein by
Landlord and its contractors, agents or representatives pursuant to this Section
4.2 shall not constitute a trespass or an eviction (constructive or otherwise)
nor shall Tenant be entitled to any abatement or reduction of Rent or claim for
damages for any injury to or interference with Tenant's business, loss of
occupancy or quiet enjoyment or for any other consequential damages by reason
thereof; provided, however, the Landlord shall be responsible for property
damage resulting from wilful destruction or negligence in the performance of
work done by Landlord and its contractors, agents or representatives pursuant to
this Section 4.2.
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4.3. NUISANCE. Tenant shall conduct its business and control its agents,
employees, invitees, contractors and visitors in such manner as not to create
any nuisance, or unreasonably interfere with, annoy or disturb any other tenant,
or Landlord in its operation of the Building.
4.4. LAWS AND REGULATIONS; RULES OF THE BUILDING. Tenant, at Tenant's
expense, shall comply with, and Tenant shall cause its visitors, employees,
contractors, agents and invitees to comply with (a) all laws, ordinances,
orders, rules, regulations and other requirements of governmental authority
which impose any duty with respect to or otherwise relate to the use, condition,
occupancy, maintenance or alteration of the Premises, whether now in force or
hereafter enacted, and (b) all rules and regulations reasonably adopted and
altered by Landlord from time to time for the use, care and cleanliness of the
Building and for preservation of good order therein (the "Building Rules"),
which Building Rules will be sent by Landlord to Tenant in writing and shall be
thereafter carried out and observed by Tenant, its employees, contractors,
agents, invitees and visitors. The current Building Rules are attached hereto as
EXHIBIT G and made a part hereof for all purposes. Notwithstanding anything
stated in this Paragraph to the contrary, it shall be Landlord's responsibility
to obtain the certificate of occupancy pursuant to the Work Letter attached as
EXHIBIT D hereto.
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4.5. HAZARDOUS SUBSTANCES.
(a) Landlord represents that the Project is not an "industrial
establishment" as defined in ISRA and Landlord shall not conduct any operations
that shall cause the Project on the Premises to be deemed an "industrial
establishment." Landlord shall clean up and remediate, at its sole cost, any
Hazardous Substance caused by it or its employees to be introduced to the
Building or Project. Landlord has delivered to, and Tenant acknowledges receipt
of, the Phase I Environmental Report dated September 1998, the Memorandum of
Agreement for Non-Residential Property dated July 23, 1999, Deed Notice dated
October 15, 1999 and No Further Action Letter and Covenant Not to Sue dated
February 8, 2000 (collectively the "Reports"). To the best of Landlord's
knowledge the Reports disclose all the Hazardous Substances on or in the Project
as of the dates of such Reports and, to the best of Landlord's knowledge, it has
disclosed all third-party reports or studies in its possession which disclose
the existence of any other Hazardous Substances in or on the Project.
(b) Landlord shall not permit other tenants in the Building, to
cause or permit any Hazardous Substance to be used, stored, generated or
disposed of on or in the Building or the Project except for small quantities
customarily used in connection with general office uses. Landlord shall enforce
the provisions of leases with other tenants in the Building to cause the tenants
to clean up and remediate, at their sole cost, any Hazardous Substance caused by
them, their agents, employees, contractors or invitees to be introduced to the
Building or Project.
(c) Except for small quantities of Hazardous Substances customarily
used in connection with general office uses, Tenant shall not cause or permit
any Hazardous Substance to be used, stored, generated or disposed of on or in
the Building, the Project or the Premises, by Tenant, Tenant's agents,
employees, contractors or invitees without first obtaining Landlord's written
consent, which may be given or withheld in Landlord's sole discretion. If any
Hazardous Substances are used, stored, generated, or disposed of on or in the
Building, the Project or the Premises, including those customarily used in
connection with general office uses, or if the Building, the Project or the
Premises, become contaminated in any manner or otherwise become affected by any
storage, release or discharge of a Hazardous Substance caused by Tenant,
Tenant's agents, employees, contractors or invitees, Tenant shall immediately
notify Landlord of the release or discharge of a Hazardous Substance and Tenant
shall indemnify, defend and hold harmless Landlord and its partners from and
against any and all claims, damages, fines, judgments, penalties, costs,
liabilities, or losses (including,
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without limitation, a decrease in value of the Project, the Building or the
Premises, damages caused by loss or restriction of rentable or usable space, or
any damages caused by adverse impact on marketing of the space, and any and all
sums paid for settlement of claims, attorneys' fees, consultant, and expert
fees) arising during or after the term of this Lease, and arising as a result of
such contamination, release or discharge. This indemnification includes, without
limitation, any and all costs incurred because of any investigation of the site
or any cleanup, removal, or restoration mandated by federal, state or local
agency or political subdivision or required by any Interest Holder. Without
limitation of the foregoing, if Tenant causes or permits the presence of any
Hazardous Substance on the Premises, the Building or the Project and the same
results in any contamination, release or discharge, Tenant shall promptly, at
its sole expense, take any and all necessary actions to return the Premises, the
Building or the Project, to the conditions existing prior to the presence of any
such Hazardous Substance on the Premises, the Building or the Project and in
compliance with all applicable laws. Tenant shall first obtain Landlord's
approval for any such remedial action and the approval of the contractors doing
the work. Landlord shall have the right to do the work, at Tenant's sole cost
and expense, if Landlord determines an emergency exists or if necessary to
protect the health and safety of other tenants of the Project.
(d) As used herein, "Hazardous Substance" means any substance that
is toxic, ignitable, reactive, infectious or corrosive and that is regulated by
any local government, the State of New Jersey or the United States Government.
"Hazardous Substance" includes, any and all material or substances that are
defined as "hazardous waste," "extremely hazardous waste," or a "hazardous
substance" pursuant to federal, state or local governmental law. "Hazardous
Substance" includes, but is not restricted to, asbestos, polychlorobiphenyls,
and petroleum.
(e) Tenant's indemnification of Landlord under Section 4.5(c) hereof
shall survive the expiration or termination of this Lease.
(f) Landlord, with respect to Landlord's Work and any work performed
by Landlord on a going forward basis, and Tenant, with respect to Tenant's Work
and with respect to any work performed by or on behalf of Tenant at the Premises
on a going forward basis, shall ensure that no Hazardous Substances (including
without limitation, asbestos) are used in the construction of, or become present
on, the Premises in a form or quantities that will present a health risk. In the
event repairs and modifications have been necessitated by Tenant's breach of a
covenant or obligation hereunder, the cost of such repairs and modifications
shall be the sole responsibility of Tenant and shall be paid by Tenant to
Landlord within thirty (30)
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days of receipt by Tenant of an invoice from Landlord for the cost of such
repairs and modifications. Any repairs and modifications required as a result of
a breach by Landlord of its responsibilities hereunder shall be at Landlord's
sole cost.
4.6. ISRA COMPLIANCE.
(a) Tenant shall, at Tenant's own expense, comply with the
Industrial Site Recovery Act, N.J.S.A., 13:1K-6, et seq., the regulations
promulgated thereunder, and any amending and successor legislation and
regulations (ISRA). Tenant shall, at Tenant's own expense, make all submissions
to provide all information to, and comply with all requirements of, the
Industrial Site Evaluation Element or its successor ("Element") of the New
Jersey Department of Environmental Protection or its successor ("Element") of
the New Jersey Department of Environmental Protection or its successor (NJDEP).
(b) Tenant's obligations under this paragraph shall arise if there
is a closing of Tenant's operations, a transfer of Tenant's ownership or
operations, or a change in Tenant's ownership at or affecting the Premises
pursuant to ISRA.
(c) Provided this Lease is not previously canceled or terminated by
either party or by operation of law, Tenant shall commence its submission to the
Element in anticipation of the end of the lease term, no later than one year
prior to the expiration of the lease term.
(d) For purposes of this paragraph, the term "Environmental
Documents" shall mean all environmental documentation concerning the Premises or
its environs, in the possession or under the control of Tenant, including
without limitation all sampling plans, cleanup plans, preliminary assessment
plans and reports, site investigation plans and reports, remedial investigation
plans and reports, remedial action plans and reports or the equivalent, sampling
results, sampling result reports, data, diagrams, charts, maps, analyses,
conclusions, quality assurance/quality control documentation, correspondence to
or from the Element or any other municipal, county, state or federal
governmental authority, submissions to the Element or any other municipal,
county, state, or federal governmental authority, and directives, orders,
approvals, and disapprovals issued by the Element or any other municipal,
county, state, or federal governmental authority. During the term of this Lease
and subsequently promptly upon receipt by Tenant or Tenant's representatives,
Tenant shall deliver to Landlord all Environmental Documents concerning or
generated by or on behalf of Tenant with respect to the Premises, whether
currently or hereafter existing.
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(e) Tenant shall notify Landlord in advance of all meetings
scheduled between Tenant or Tenant's representatives and the NJDEP or any other
environmental authority, and Landlord and Landlord's representatives shall have
the right, without the obligation, to attend and participate in all such
meetings.
(f) Should the Element or any other division of the NJDEP or other
governmental authority determine that a remedial action workplan be prepared and
that remediation be undertaken because Tenant has caused fill materials, or
hazardous or toxic substances, pollutants, or wastes exist, or have been
spilled, discharged, or placed in, on, under, or about the Premises during the
lease term, Tenant shall, at Tenant's own expense, promptly prepare and submit a
remedial action workplan and establish a remediation funding source, which plan
and funding source shall be satisfactory to Landlord, and shall promptly
implement the approved remedial action workplan to the satisfaction of Landlord.
In no event shall Tenant's remedial action involve engineering or institutional
controls, including without limitation capping, deed notice, declaration of
restriction, or other institutional control notice pursuant to P.L. 1993, ch.
139, and notwithstanding the NJDEP's requirements, Tenant's remedial action
shall meet the most stringent NJDEP remediation standards for soil, surface
water, and groundwater. Promptly upon completion of all required investigatory
and remedial activities, Tenant shall restore the affected areas of the Premises
from any damage or condition caused by the work, including without limitation,
closing, pursuant to law, any wells installed at the Project.
(g) At no expense to Landlord, Tenant shall promptly provide all
information requested by Landlord or the NJDEP for preparation of a
non-applicability affidavit, de minimus quantity exemption application, limited
conveyance application or other submission and shall promptly sign such
affidavits and submissions when requested by Landlord or the NJDEP.
(h) Should Tenant's operations at the Premises be outside of those
industrial operations covered by ISRA, Tenant shall, at Tenant's own expense,
obtain a letter of non-applicability or de minimus quantity exemption from the
Element prior to termination of the lease term, and shall promptly provide
Tenant's submission and the Element's exemption letter to Landlord. Should
Tenant not be able to obtain a letter of non-applicability or a de minimus
quantity exemption from the Element, then Tenant shall, at Landlord's option,
hire a consultant satisfactory to Landlord to undertake sampling at the Premises
sufficient to determine whether fill materials, or hazardous or toxic
substances, pollutants, or wastes exist or have been spilled, discharged or
placed in, on, under, or about the Premises during the lease term. Tenant's
sampling shall also establish the integrity of all underground storage tanks at
the Premises. Should the sampling reveal any spill, discharge, or placing
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of fill materials, or of hazardous or toxic substances, pollutants, or wastes,
in, on, under, or about the Premises caused by Tenant, then Tenant shall, at
Tenant's expense, prior to the expiration or earlier termination of the lease
term, promptly remediate the Premises to the satisfaction of Landlord and the
NJDEP. In no event shall Tenant's remedial action involve engineering or
institutional controls, including without limitation capping, deed notice,
declaration of restriction, or other institutional control notice pursuant to
P.L. 1993, ch. 139, and notwithstanding the NJDEP's requirements, Seller's
remedial action shall meet the most stringent NJDEP remediation standards for
soil, surface water, and groundwater.
(i) If Tenant fails to obtain either (A) a non-applicability letter;
(B) a de minimus quantity exemption; (C) an unconditional approval of Tenant's
negative declaration; or (D) a no further action letter with respect to Tenant's
remedial action workplan (collectively referred to as "ISRA Clearance") from the
Element; or fails to remediate the Premises pursuant to subparagraph (h), above,
prior to the expiration or earlier termination of the lease term as to
conditions caused by Tenant, then upon the expiration or earlier termination of
the lease term Landlord shall have the option either to consider the Lease as
having ended or to treat Tenant as a holdover tenant in possession of the
Premises. If Landlord considers the Lease as having ended, then Tenant shall
nevertheless be obligated to promptly obtain ISRA Clearance as to conditions
caused by Tenant or fulfill the obligations set forth in subparagraph (h),
above, as the case may be. If Landlord treats Tenant as a holdover tenant in
possession of the Premises, then Tenant shall monthly pay to Landlord double the
regular and additional monthly rent that Tenant would otherwise have paid, until
such time as Tenant obtains ISRA Clearance or fulfills its obligations under
subparagraph (h), above, as the case may be, and during the holdover period all
of the terms of this Lease shall remain in full force and effect.
Notwithstanding anything contained in this Section 4.6(i) to the contrary, if
the failure to obtain ISRA clearance is not due to acts of the Tenant, the
Tenant shall not be obligated to pay any additional rental if the Lease cannot
be terminated due to such non-Tenant caused failure to obtain ISRA clearance.
(j) Tenant represents and warrants to Landlord that Tenant intends
to use the Premises as set forth in Section 1.5, which operations have the
following Standard Industrial Classification (SIC) numbers as defined by the
most recent edition of the Standard Industrial Classification Manual published
by the Federal Executive Office of the President, Office of Management and
Budget: _____. Tenant's use of the Premises shall be restricted to the
classifications set forth above unless Tenant obtains Landlord's prior written
consent to any change in use of the Premises. Prior to the Commencement Date of
Tenant's Lease term, Tenant shall supply to
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Landlord an affidavit of an officer of Tenant ("Officer's Affidavit) setting
forth Tenant's SIC numbers and a detailed description of the operations and
processes Tenant shall undertake at the Premises, organized in the form of a
narrative report including a description and quantification of hazardous or
toxic substances, pollutants, and wastes to be generated, manufactured, refined,
transported, treated, stored, handled, or disposed of at the Premises. Following
commencement of the Lease term, Tenant shall notify Landlord by way of a
supplemental Officer's Affidavit as to any changes in Tenant's operation, SIC
numbers, or use, generation, manufacture, refining, transportation, treatment,
storage, handling, or disposal of hazardous or toxic substances, pollutants, and
wastes. Tenant shall not commence or alter any operations at the Premises prior
to (A) obtaining all required operating and discharge permits or approvals,
including but not limited to air pollution control permits and water pollution
discharge elimination system permits from the NJDEP, from all governmental or
public authorities having jurisdiction over Tenant's operations or the Premises,
and (B) providing a copy of the permits or approvals to Landlord.
(k) Upon twenty-four hours notice, Tenant shall permit Landlord and
Landlord's agents, servants and employees, including but not limited to legal
counsel and environmental consultants and engineers, access to the Premises for
the purposes of environmental inspection and sampling during regular business
hours, or during other hours either by agreement of the parties or in the event
of any environmental emergency. Tenant shall not restrict access to any part of
the Premises, and Tenant shall not impose any conditions to access. In the event
that Landlord's environmental inspection shall include sampling and testing of
the Premises, Landlord shall use its best efforts to avoid unreasonably
interfering with Tenant's use of the Premises and, on completion of sampling and
testing, shall, to the extent reasonably practicable, repair and restore the
affected areas of the Premises from any damage caused by the sampling and
testing.
(l) Tenant shall indemnify, defend and hold harmless Landlord from
and against all claims, liabilities, losses, damages, penalties and costs,
foreseen or unforeseen, including without limitation, counsel, engineering and
other professional or expert fees, which Landlord may incur resulting directly
and wholly from Tenant's or Tenant's agents' or employees' action or non-action
with regard to Tenant's obligations under this Section.
(m) This Section shall survive the expiration or earlier termination
of this Lease. Tenant's failure to abide by the terms of this Section shall be
restrainable by injunction.
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(n) Landlord shall cooperate with Tenant in regard to Tenant's
compliance with ISRA requirements to the extent Landlord's cooperation is
reasonably necessary.
(o) Tenant shall cooperate with Landlord in regard to compliance by
Landlord or another tenant of the Building with ISRA requirements to the extent
Tenant's cooperation is reasonably necessary.
(p) The Landlord shall indemnify the Tenant under Sections 4.5 and
4.6 hereof for the failure of the Landlord to comply with Sections 4.5 and 4.6
hereof, including ISRA compliance and the use of Hazardous Substances at the
Project. In addition, the Landlord's indemnification under this subsection shall
survive the expiration or termination of the Lease.
5.
5.1 CONDITION OF THE PREMISES AND THE PROJECT.
(a) The Premises shall be delivered to Tenant, and Tenant shall
accept same, with the improvements to be provided by Landlord as provided in
EXHIBIT D. As used in this Lease, the term "Leasehold Improvements" means any
and all improvements and tenant finish existing in the Premises as of the
Commencement Date including Tenant's Work as set forth and described in EXHIBIT
D, as well as any and all Premises Alterations (as hereinafter defined) and
subsequent improvements made to the Premises during the term of this Lease.
(b) Tenant acknowledges that no representations as to the condition
of the Premises or the Project, nor promises to alter, remodel or improve the
Premises or the Project, have been made by Landlord, except as are expressly set
forth in this Lease.
5.2 ALTERATIONS TO THE PREMISES OTHER THAN WORK PURSUANT TO EXHIBIT D.
(a) Without first obtaining Landlord's written approval of Tenant's
contractors and the plans and specifications therefor, which approval shall not
be unreasonably withheld with regard to non-structural alterations, Tenant shall
not make or allow to be made any alterations, physical additions or other
Leasehold Improvements (including fixtures) in or to the Premises (such
alterations, additions and other Leasehold Improvements being herein called
"Premises Alterations"); or place safes, vaults, file systems or other heavy
furniture or equipment within the Premises in excess of a weight of eighty (80)
pounds per square foot. Advance written approval shall not be required for the
non-structural installation of telephones, telegraph equipment, or electrical
devices and attachments. To the extent the Building Rules (EXHIBIT G) require
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Landlord's consent to positioning of safes, files, filing systems and other
heavy equipment, such consent shall not unreasonably be withheld. If such
approval is given, prior to commencement of construction Tenant shall deliver to
Landlord all building permits required for such construction, a certificate of
insurance from Tenant's contractors confirming the existence of all insurance
reasonably required by Landlord and a copy of the executed construction contract
covering such Premises Alterations. Landlord's approval, if given, shall create
no responsibility or liability on the part of Landlord for, or warranty by
Landlord with respect to, the completeness or design sufficiency or compliance
with any laws, ordinances, orders, rules, regulations or other requirements of
governmental authority applicable thereto. Tenant shall pay to Landlord, upon
demand, a fee to reasonably compensate Landlord for the actual cost of review
and monitoring the construction of such Premises Alterations. Tenant shall
deliver to Landlord a copy of the "as-built" plans and specifications for all
Premises Alterations on a diskette in AutoCAD or compatible format.
(b) With respect to all Premises Alterations, Tenant shall have sole
responsibility for payment of, and shall pay, such contractors. Tenant shall
have sole responsibility for coordinating, and shall coordinate, the work to be
supplied or performed by such contractors, both among themselves and with any
contractors selected by the Landlord. Each such contractor shall perform its
work in a good and workmanlike manner and shall not interfere with or hinder the
Landlord or any other contractor in any manner. With respect to all Premises
Alterations, there shall be no labor dispute of any nature whatsoever involving
any such contractor or any workmen of such contractor or the unions of which
they are members; and if such a labor dispute exists or comes into existence the
Tenant shall forthwith, at the Tenant's sole cost and expense, remove all such
contractors and their workmen from the Premises, from the Building, and from the
Project. During any Premises Alterations, Tenant shall have the sole
responsibility for the security of the Premises and all contractors' materials
equipment and work, regardless of whether their work is in progress or
completed.
(c) All items of Tenant's Work, Premises Alterations and Leasehold
Improvements whether or not the cost is covered by the Allowance, as defined in
EXHIBIT D (other than Tenant's trade fixtures) shall immediately become the
property of Landlord and shall be surrendered to Landlord with the Premises as
part thereof at the end of the Lease term; provided, however, that if at the
time the Working Drawings are approved or Landlord's consent is obtained to any
Premises Alterations, Landlord requests Tenant to remove any such items
installed by or on behalf of Tenant, Tenant shall cause the same to be removed
at Tenant's expense on or before the expiration of the Lease term, or shall
reimburse Landlord for the cost of such removal, as elected by landlord. It is
understood and agree that
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Tenant shall be obligated without further request to remove at its cost and
expense all of Tenant's cable installed in Tenant's computer room or elsewhere
in the Premises as well as the raised floor in Tenant's computer room. Tenant
shall remove all of Tenant's personal property from the Premises on or before
the expiration of the Lease term except as provided in this Section 5.2(c) as to
Premises Alterations. Any personal property belonging to Tenant or to any other
person or entity which is left in the Premises after the date this Lease is
terminated for any reason shall be deemed to have been abandoned. In such event,
Landlord shall have the right to store such property at Tenant's sole cost
and/or to dispose of it in whatever manner Landlord considers appropriate,
without waiving its right to claim from Tenant all expenses and damages caused
by Tenant's failure to remove such property, and Tenant and any other person or
entity shall have no right to compensation from or any other claim against
Landlord as a result.
(d) Tenant shall indemnify and hold harmless Landlord from and
against all costs (including reasonable attorneys' fees and costs of suit),
losses, liabilities, or causes of action arising out of or relating to any
Premises Alterations, including but not limited to any mechanics' or
materialmen's liens asserted in connection therewith. The Tenant shall not
permit or suffer the filing of any mechanic's notice of intention or other lien
or prospective lien by any contractor or subcontractor with respect to the
Building or the Land or any interest therein. Should any mechanics' or other
liens be filed against any portion of the Building and/or the Land or any
interest therein by reason of Tenant's acts or omissions or because of a claim
against Tenant or its contractors, Tenant shall cause the same to be canceled or
discharged of record or provide such payment bond(s) from a reputable,
financially sound institutional surety as will in the reasonable opinion of the
Landlord, or any Interest Holder (as that term is defined in Section 11.1) be
adequate to assure the complete discharge and release thereof within fifteen
(15) days after written notice by Landlord. If Tenant shall fail to cancel or
discharge said lien or liens, or provide said bond(s) within said fifteen (15)
day period, which failure shall be deemed to be a default hereunder, Landlord
may, at its sole option and in addition to any other remedy of Landlord
hereunder, cancel or discharge the lien or liens and upon Landlord's demand,
Tenant shall promptly reimburse Landlord for all actual costs incurred in
canceling or discharging such lien or liens. Tenant's indemnification of
Landlord under this paragraph shall survive the expiration or termination of
this Lease.
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5.3 ALTERATIONS TO THE BUILDING. Notwithstanding anything herein to the
contrary, Landlord hereby expressly reserves the right in its reasonable
discretion to (a) temporarily or permanently change the location of, close,
block or otherwise alter any entrances, corridors, skywalks, tunnels, doorways
or walkways leading to or providing access to the Building or any part thereof
or otherwise restrict the use of same provided such activities do not
unreasonably impair Tenant's access to the Premises or otherwise unreasonably or
materially impair Tenant's use of the Premises, and (b) improve, remodel or
otherwise alter any of the Building, and it is agreed that Landlord shall not
incur any liability whatsoever to Tenant as a consequence thereof and such
activities shall not be deemed to be a breach of any of Landlord's obligations
hereunder. Landlord agrees to exercise good faith in notifying Tenant in writing
within a reasonable time in advance of any alterations, modifications or other
actions of Landlord under this Section 5.3. Any diminution or obstruction of
light, air or view by any structure which is now or may hereafter be constructed
on lands adjacent to the Project shall in no way affect this Lease or impose any
liability on Landlord. Noise, dust or vibration or other incidents to any
construction work in or around the Building shall in no way affect this Lease or
impose any liability on Landlord.
5.4 ACCESS CARDS. Landlord shall furnish Tenant with one hundred
twenty-five (125) security access cards for the Building. Tenant shall be
permitted to install and utilize, at its sole cost, within the Premises door
control access devices complimentary to the access system utilized in the
Building and to install locks on doors entering or within the Premises provided
Tenant supplies Landlord and property management with copies of keys to all such
locks. Access cards will be furnished by Landlord at Tenant's sole cost and
expense. Upon termination of this Lease, Tenant shall surrender to Landlord all
access cards and keys to any locks on doors entering or within the Premises, and
give to Landlord the explanation of the combination of all locks for safes, safe
cabinets and vault doors, if any, in the Premises. Tenant shall not permit any
unauthorized use of the access cards. If Tenant loses any access card, all costs
and expenses incurred by Landlord to adjust the access system due to such loss
or to replace the card shall be paid by Tenant. Upon the termination of any
employee's employment with Tenant, Tenant shall immediately notify Landlord and
the Building's property manager if such employee did not return his access card
prior to his or her departure. If the employee did not, then Landlord shall,
upon notice from Tenant, immediately adjust the access system, at Tenant's sole
cost and expense. Notwithstanding the above, at the time any access card is
lost, or at any time an employee is terminated, Tenant may elect not to adjust
the access system, provided Tenant in either case waives and releases Landlord,
its agents, employees and property
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manager from all claims and expenses of any kind or nature known or unknown
arising directly or indirectly in whole or in part from such loss of the access
card and agrees to indemnify and hold all such parties harmless from all such
claims and expenses including reasonable attorneys' fees and costs.
5.5 GRAPHICS, BUILDING DIRECTORY AND NAME.
No signs, numerals, letters or other graphics shall be used or permitted
on the exterior of the Premises, or which may be visible from outside the
Premises, unless approved in advance and in writing by Landlord. Tenant shall be
permitted at Tenant's own cost and expense, to install appropriate signage on
walls adjacent to or on the entrance doors to the Premises, subject to
Landlord's reasonable approval. Maintenance, repair, restoration and removal of
any such interior signage shall also be at Tenant's sole cost and expense. All
signage will be designed using the Building's standard graphics and shall be
subject to all applicable codes and regulations and any development regulations
established for the Building. So long as Tenant occupies at least one entire
floor of the Building and Tenant is the largest tenant in the Building, Tenant
will be permitted exclusive signage on a monument sign adjacent to Route 1. In
addition, Tenant will be permitted signage on a monument at the entrance to the
Project from College Road West and on a monument in front of the Building. The
design, construction, installation, maintenance and any removal of any such
monument signage shall be at the sole cost and expense of Tenant. The initial
cost can be paid out of Tenant's Allowance. All monument signage will be subject
to Princeton Forrestal Center's design and development criteria and the
Restrictive Covenant Declaration for Village South and receipt of all required
approvals from Princeton and Plainsboro Township.
Landlord, at its sole cost and expense, shall include a listing of
Tenant's name on the Building's directory. Tenant shall be permitted its
proportionate share of total lineage on the Building directory board or
directory monitor.
6.
6.1 CONDEMNATION.
(a) In the event of a taking or damage related to the exercise of
the power of eminent domain, by any agency, authority, public utility, person,
corporation or entity empowered to condemn property (including without
limitation a voluntary conveyance by Landlord in lieu of such taking or
condemnation) (a "Taking") of (i) the entire Premises, (ii) so much of the
Premises (but not less than 75%) as to prevent or substantially impair its use
by Tenant during the term of this Lease, or (iii) portions of the Building or
Project (but not less than 75%) required for reasonable access to, or
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reasonable use of, the Premises (a "Total Taking"), the rights of Tenant under
this Lease and the leasehold estate of Tenant in and to the Premises shall cease
and terminate as of the date upon which title to the property taken passes to
and vests in the condemner or the effective date of any order for possession if
issued prior to the date title vests in the condemner ("Date of Taking").
(b) In the event of a Taking of only a part of the Premises or of a
part of the Project which does not constitute a Total Taking during the term of
this Lease (a "Partial Taking"), the rights of Tenant under this Lease and the
leasehold estate of Tenant in and to the portion of the property taken shall
cease and terminate as of the Date of Taking, and an adjustment to the Rent
shall be made based upon the reduced area of the Premises.
(c) In the event of a Taking of a material portion of the Building
(other than the Premises) such that, in Landlord's reasonable opinion, the
Building cannot be restored in a manner that makes its continued operation
practically or economically feasible, Landlord may terminate this Lease by
giving notice to Tenant within ninety (90) days after the date notice of such
Taking is received by Landlord, provided Landlord terminates all other tenants
in the Building.
(d) If this Lease is terminated pursuant to this Section 6.1,
Landlord shall refund to Tenant any prepaid unaccrued Rent and any other sums
due and owing to Tenant (less any then due and owing Landlord by Tenant), and
Tenant shall pay to Landlord any remaining sums due and owing Landlord under
this Lease, each prorated as of the Date of Taking where applicable.
(e) If this Lease is not terminated as provided for in this Section
6.1, Landlord at its expense shall promptly repair and restore the Building,
Project and/or the Premises to approximately the same condition that existed
immediately prior to the Date of Taking, wear and tear only excepted (and
Landlord shall have no obligation to repair or restore Tenant's improvements to
the Premises or Tenant's property), except for the part taken, so as to render
the Building or Project as complete an architectural unit as practical, but only
to the extent of the condemnation award received by Landlord for the damage.
(f) Landlord reserves all rights to damages and awards paid because
of any Partial or Total Taking of the Premises or the Project. Tenant assigns to
Landlord any right Tenant may have to the damages or award. Further, Tenant
shall not make claims against Landlord or the condemning authority for damages.
Notwithstanding the above, Tenant may pursue a separate claim against the
condemning authority for the value of Tenant's moving expenses, business
interruption and dislocation damages, Tenant's property and trade
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fixtures and any other award that would not reduce the award payable to
Landlord.
6.2. DAMAGES FROM CERTAIN CAUSES. Unless any action of Landlord
constitutes recklessness, gross negligence or willful misconduct, Landlord shall
not be liable or responsible to Tenant for (i) any loss or damage to any
property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition or order
of governmental body or authority, or any cause beyond Landlord's control, or
(ii) any damage or inconvenience which may arise through repair or alteration of
any part of the Building made necessary by virtue of any such cause. The terms
and provisions of this Section 6.2 shall survive the expiration or termination
of this Lease.
6.3. CASUALTY.
(a) If at any time during the term of this Lease, including any
extension or renewal thereof, the Building is damaged by fire or other casualty,
then, unless this Lease is terminated by Landlord or Tenant as hereinafter
provided, Landlord shall be obligated to promptly commence, and thereafter
prosecute with due diligence, the reconstruction, restoration and repair of the
Building and the Premises to a condition substantially equivalent to that
existing immediately prior to the casualty. If the damage renders the Premises
inaccessible or untenantable in whole or in part, the Rent provided for herein
shall abate thereafter as to the portion of the Premises so effected until such
time as same is accessible and restored to a tenantable condition.
(b) If (i) the Building is damaged to an extent that Landlord's good
faith estimate of the cost of reconstruction, restoration and repair thereof
exceeds sixty percent (60%) of the replacement cost of the Premises, (ii) the
reconstruction, restoration and repair of the Premises or the Building cannot
with reasonable diligence be completed within one hundred eighty (180) days
after the casualty, or (iii) the casualty occurs during the last twelve (12)
calendar months of the term of this Lease, then in any such event Landlord shall
have the right, exercisable by written notice given to Tenant at any time within
thirty (30) days after the occurrence of the casualty, to elect not to
reconstruct, restore or repair the Premises, and in such event this Lease shall
be terminated in all respects effective as of the date of the casualty, all Rent
shall be prorated to the date of the casualty, and the parties hereto shall be
released from any obligations thereafter accruing under this Lease (except as
otherwise provided herein). If Landlord does not complete such repair within two
hundred and seventy (270) days of the date of casualty (which date shall be
extended by any delay in reconstruction caused or contributed to by Tenant),
then Tenant may
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terminate this Lease upon ten (10) days prior notice to Landlord received prior
to the date of completion.
(c) Notwithstanding anything contained in this Section 6.3, in no
event shall Landlord be required to expend more to reconstruct, restore and
repair the Building than the amount actually received by Landlord from the
proceeds of the property insurance required to be carried by Landlord under
Section 7.1 hereof, plus the amount of any deductible. Landlord shall notify
Tenant within 120 days of a casualty whether it has received or expects to
receive insurance proceeds sufficient to reconstruct, restore and repair the
Building. Provided, however, the preceding sentence does not give Tenant a
separate right to terminate the Lease if on the 120th day Landlord has received
or still expects to receive sufficient insurance but has simply failed to notify
Tenant, or if Tenant believes such insurance is insufficient to reconstruct,
restore and repair the Building.
(d) In addition to Tenant's right to terminate set forth in
subsection 6.3(b) above, Landlord agrees to notify Tenant within thirty (30)
days of the date of the casualty of Landlord's good faith estimate as to whether
the repair of the Premises can be completed in 180 days or less. If it cannot be
completed in 180 days or less, then (provided Landlord has not elected to
terminate the Lease) Tenant may upon written notice to Landlord (received by
Landlord within thirty (30) days of receipt of such good faith estimate from
Landlord) elect to terminate this Lease, which election shall be effective as of
the date of receipt of such notice by Landlord. In no event shall Tenant have
the right to holdover for more than thirty (30) days without the express written
consent of Landlord. If Tenant does not elect to terminate in accordance with
the above, time being of the essence, the provisions of subsection 6.3(b) shall
apply; however, the periods in which Landlord is obligated to complete repairs
shall commence on the earlier of Landlord's receipt of written notice to proceed
with repair from Tenant or expiration of the Tenant's thirty (30) day period for
election to terminate.
7.
7.1. PROPERTY INSURANCE. Landlord shall maintain "all risk" property
insurance on the Building including all Tenant's Work, Premises Alterations and
all Building Standard Improvements equal to full replacement value. Landlord may
also maintain such other additional insurance as is customary for a landlord to
maintain or as may be required by Landlord's lender, including, but not limited
to environmental/pollution insurance, rental abatement insurance and personal
property insurance. There currently is in place an umbrella pollution insurance
policy covering the Project for a three-year period at a total premium of
$20,562.00. Such policy covers the Project and the building and land adjacent to
the Project, consisting
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of a total of approximately 24 acres. Said insurance shall be maintained with an
insurance company authorized to do business in New Jersey, in amounts desired by
Landlord and at the expense of Landlord (but with the same to be included in
Operating Expenses) and payments for losses thereunder shall be made solely to
Landlord. If the annual premiums to be paid by Landlord shall exceed the
standard rates because of Tenant's operations within or contents of the Premises
or because the improvements to the Premises are beyond the Building Allowance
set forth in EXHIBIT D, Tenant shall promptly pay the excess amount of the
premium upon request by Landlord (and if necessary, Landlord may allocate the
insurance costs of the Building to give effect to this sentence). Tenant shall
maintain at its expense "all risk" property insurance with vandalism, malicious
mischief and sprinkler leakage endorsements on all of its personal property,
including removable trade fixtures, and any Satellite Dish, defined in EXHIBIT
L, located in or on the Premises and not required to be insured by Landlord
above, such coverage to be for an amount not less than the full replacement cost
of such insured items. All such insurance required to be maintained by Tenant
and shall provide that it shall not be cancellable, nor shall the coverage
thereunder be reduced, without at least thirty (30) days advance written notice
to Landlord. Tenant shall deliver copies of such policies to Landlord, or
certificates of insurance in a form satisfactory to Landlord, within ten (10)
days after any request therefor.
7.2. LIABILITY INSURANCE. Tenant shall at its expense, maintain a policy
or policies of commercial general liability insurance with the premiums thereon
fully paid on or before the due dates, issued by and binding upon a solvent
insurance company, such insurance to afford minimum protection (which may be
effected by primary and/or excess coverage) of not less than $2,000,000 combined
single limit for personal injury or death in any one occurrence. All such
insurance required to be maintained by Tenant shall name Landlord and any
Interest Holder as an additional insured thereunder and shall provide that it
shall not be cancellable, nor shall the coverage thereunder be reduced, without
at least thirty (30) days advance written notice to Landlord. In addition, such
insurance policies to be maintained by Tenant shall have deductible amounts or
self-insured retention not greater than $100,000. Tenant shall deliver copies of
such policies to Landlord or certificates of insurance in a form satisfactory to
Landlord (as directed by Landlord) within ten (10) days after any request
therefor.
7.3. HOLD HARMLESS; MUTUAL INDEMNITY.
(a) Tenant releases Landlord from all liability for any bodily
injury or property damage occurring in the Premises, and agrees to protect,
defend, indemnify and hold Landlord harmless from and against all liabilities,
claims, suits, actions and costs (including reasonable attorneys' fees and costs
of suit) arising out
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of or in connection with any such bodily injury or property damage, except to
the extent that such injury or damage is attributable to any breach of this
Lease by Landlord or the negligence or willful misconduct of Landlord, its
agents, servants, employees or contractors, or except to the extent Landlord may
be liable under Section 6.2 of the Lease. Landlord hereby agrees to protect,
defend, indemnify and hold Tenant harmless from and against all liabilities,
claims, suits, actions and costs (including reasonable attorneys' fees and costs
of suit) arising out of or in connection with any bodily injury or property
damage occurring in the Premises, to the extent that such injury or damage is
attributable to any breach of this Lease by Landlord or the negligence or
willful misconduct of Landlord, its agents, servants, employees or contractors,
or except to the extent Landlord may be liable under Section 6.2 of the Lease.
(b) Landlord releases Tenant from all liability for any bodily
injury or property damage occurring in any area of the Building other than the
Premises and Landlord agrees to indemnify and hold Tenant harmless from and
against all claims for such bodily injury or property damage, except to the
extent that such injury or damage is attributable to any breach of this Lease by
Tenant or the negligence or willful misconduct of Tenant, its agents, servants,
employees, contractors, customers or invitees. Tenant hereby agrees to protect,
defend, indemnify and hold Landlord harmless from and against all liabilities,
claims, suits, actions and costs (including reasonable attorneys' fees and costs
of suit) arising out of or in connection with any bodily injury or property
damage occurring in any area of the Building other than the Premises, to the
extent that such injury or damage is attributable to any breach of this Lease by
Tenant or the negligence or willful misconduct of the Tenant, its agents,
servants, employees, contractors, customers or invitees.
7.4. WAIVER OF CLAIMS AND RECOVERY RIGHTS. Anything in this Lease to the
contrary notwithstanding, Landlord and Tenant each, on behalf of themselves and
their respective heirs, successors, legal representatives, assigns and insurers,
hereby (a) waives any and all rights of recovery, claims, actions or causes of
action against the other and its respective officers, directors, partners,
shareholders, agents, servants, employees, guests, licensees or invitees for any
loss or damage that may occur to the Premises or other portion of the Project,
or any improvements thereto, or any personal property of such party therein, by
reason of fire, the elements, or any other cause which is required to be insured
against under the terms of the insurance policies referred to in Section 7.1
hereof, regardless of cause or origin, including negligence of the other party
hereto or its respective officers, directors, partners, shareholders, agents,
servants, employees, guests, licensees or invitees, and (b) covenants that no
insurer shall hold any right of subrogation against such other party; provided,
however, the waiver set forth in this Section 7.4 shall not apply to any
deductibles on insurance policies carried
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by Landlord or Tenant or to any coinsurance penalty which Landlord or Tenant
might sustain. If the respective insurer of Landlord and Tenant does not permit
such a waiver without an appropriate endorsement to such party's insurance
policy, then Landlord and Tenant each shall notify its insurer of the waiver set
forth herein and to secure from such insurer an appropriate endorsement to its
respective insurance policy with respect to such waiver.
8.
8.1 DEFAULT BY TENANT. The occurrence of any one or more of the following
events shall constitute an "Event of Default" under this Lease:
(a) Tenant shall fail to pay any sum of Rent when due, and such
failure shall continue for ten (10) days after such due date provided; however,
that Landlord agrees that Landlord shall, prior to exercising any remedies for
nonpayment set forth in Section 8.2 hereunder, provide Tenant with written
notice of nonpayment on the first occasion of nonpayment during any consecutive
twelve month period and Tenant shall not be in default if it cures such
nonpayment within ten (10) days of receipt of such notice. Once given by
Landlord on the one occasion, Landlord shall have no further obligation to give
written notice with respect to such default or any subsequent monetary default
during such twelve month period;
(b) Tenant shall fail to execute and acknowledge or otherwise
respond in good faith and in writing within ten (10) days after submission to
Tenant of a request for confirmation of the subordination of this Lease pursuant
to Section 11.1(a), confirmation of the subordination of a mortgage or deed of
trust lien to this Lease pursuant to Section 11.1(b) or an estoppel certificate
pursuant to Section 11.2;
(c) Tenant shall fail in the performance of any of the other
covenants or conditions not included in subparagraphs (a) and (b) of this
Section 8.1 which Tenant is required to observe and to perform under this Lease
and such failure shall continue for thirty (30) days after written notice to
Tenant; unless such failure materially and adversely affects the Building or the
operation thereof or other tenants or violates law and in such event Tenant
fails to cure same within ten (10) days of receipt of written notice; however,
if the failure requires performance of any obligation that cannot be fully
performed within such thirty (30) day period then Tenant shall not be in default
hereof if it commences to cure such failure within such thirty (30) day period
and diligently prosecutes completion of such cure;
(d) the interest of Tenant under this Lease shall be levied on under
execution or other legal process; any petition shall
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be filed by or against Tenant to declare Tenant a bankrupt or to delay, reduce
or modify Tenant's debts or obligations, or to reorganize or modify Tenant's
capital structure; provided, however, in the event such petition or proceeding
is involuntary, Tenant shall have sixty (60) days after its commencement to have
such petition or proceeding dismissed; Tenant is declared insolvent according to
law; any assignment of Tenant's property shall be made for the benefit of
creditors; or a receiver or trustee is appointed for Tenant or its property and
such levy, execution, legal process, petition, declaration, assignment or
appointment is not removed or vacated within thirty (30) days from the date of
its creation, service or filing;
(e) Tenant shall fail to occupy the Premises within thirty (30) days
following the Commencement Date, or shall vacate or abandon the Premises for a
period of thirty (30) or more continuous days at any time during the term of
this Lease or any renewals or extensions thereof, and shall fail to perform its
other obligations under this Lease; or
(f) Tenant, if a corporation, shall cease to exist as a corporation
in good standing in the state of its incorporation, or Tenant, if a partnership
or other entity, shall be dissolved or otherwise liquidated except as otherwise
permitted in Section 9.1(f) of this Lease.
8.2 REMEDIES. Upon the occurrence of any Event of Default, at Landlord's
option, Landlord may (without further notice or grace) exercise any one or more
of the following remedies, in addition to all other rights and remedies provided
at law or in equity:
(a) Terminate this Lease and immediately repossess the Premises by
forcible entry and detainer suit or otherwise, in accordance with applicable
law, and be entitled to recover forthwith as damages a sum of money equal to the
total of (i) the cost of recovering the Premises (including reasonable legal
fees and costs of suit), (ii) the unpaid Rent earned at the time of termination,
plus interest thereon at the Default Rate which shall be equal to the Prime Rate
as defined in Section 2.3(e), (iii) the balance of the Stated Rentals for the
remainder of the term of this Lease, less the fair market rental value of the
Premises for said period, taking into account the period of time during which
the Premises is likely to remain vacant until a new tenant commences payment of
rental and the reasonably anticipated out-of-pocket expenses to be incurred by
Landlord to relet the Premises (such as the cost of preparation of the Premises,
leasing commissions and reasonable legal fees associated with occupancy by a new
tenant), and (iv) any other sum of money and damages owed by Tenant to Landlord
under the terms of this Lease. The provisions of this paragraph shall survive
the expiration or termination of this Lease. For the purpose of calculating
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Landlord's damages under clause (iii) of this paragraph, Tenant covenants and
agrees that:
(i) it shall be assumed that the Additional Rental for the
calendar year in which this Lease is terminated would be equal to the Additional
Rental for the last full calendar year prior to termination, increased at a rate
equal to the average rate of increase (if any) of Operating Expenses for the
three (3) full calendar years preceding the calendar year of termination (the
"Escalation Rate"), and that the Additional Rental for each year thereafter for
the remainder of the term would be equal to the Additional Rental for the
preceding calendar year (calculated in the same manner as for the year of
termination), increased at the Escalation Rate; and
(ii) Landlord may rely upon the average of the determinations
of the fair market rental value of the Premises for the remainder of the term of
this Lease made independently and in writing by three (3) reputable real estate
brokers active in the leasing of office space comparable to the Premises in the
Princeton, New Jersey area office market selected by Landlord. Provided,
however, Landlord shall not select a broker that is currently engaged by
Landlord in the Princeton market, Tenant shall have no right to dispute the
value so calculated.
(b) Terminate Tenant's right of possession (but not this Lease)
and immediately repossess the Premises by forcible entry and detainer suit or
otherwise, in accordance with applicable law, without thereby releasing Tenant
from any liability hereunder and without terminating this Lease, and shall be
entitled to recover forthwith as damages a sum of money equal to the total of
(i) the cost of recovering the Premises (including reasonable legal fees and
costs of suit), (ii) the unpaid Rent earned at the time of termination, plus
interest thereon at the Default Rate, and (iii) any other sum of money and
damages then owed by Tenant to Landlord under the terms of this Lease. In
addition, Tenant shall remain liable for the payment of all Stated Rentals as
same become due under the terms of this Lease. After regaining possession of the
Premises under this Section 8.3(b), Landlord shall use commercially reasonable
efforts to relet the Premises on such terms and conditions as Landlord in its
sole, good faith judgment deems acceptable, and if the Premises are so relet,
Tenant shall receive credit against the sums otherwise payable to Landlord
hereunder only for the amount of the Net Reletting Income (as hereinafter
defined). For the purpose of such reletting Landlord shall be authorized but not
obligated to decorate or to make any repairs, changes, alterations or additions
in or to Premises as may be reasonably necessary or desirable. Landlord reserves
the right, however (x) to lease any other space available in the Building prior
to offering the Premises for lease, (y) to refuse to lease the Premises to any
potential tenant that does not meet
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Landlord's standards and criteria for leasing other comparable space in the
Building (including, without limitation, rental rates), and (z) to reconfigure
the Premises and lease only portions thereof or lease all or part of the
Premises in combination with other space. Any payments due Landlord under this
Section 8.3(b) shall be made upon demand therefor from time to time, and Tenant
agrees that Landlord may file suit to recover any sums falling due under the
terms of this Section 8.3(b) from time to time. No delivery to or recovery by
Landlord of any portion due Landlord hereunder shall be any defense in any
action to recover any amount not theretofore reduced to judgment in favor of
Landlord, nor shall any reletting be construed as an election on the part of
Landlord to terminate this Lease unless a written notice of such intention be
given to Tenant by Landlord. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach. As used above, the term "Net Reletting Income" means
the amount of all rentals actually received by Landlord in respect of a
reletting of the Premises during the term of this Lease, less all the actual
costs and expenses incurred by Landlord in connection with such reletting,
including, without limitation, leasing commissions, demolition of existing
improvements and installation of new improvements and/or the allowances provided
therefor, and legal fees.
(c) Enter upon the Premises by use of a master key, a duplicate key
or other peaceable means, and alter the door locks on all entry doors of the
Premises, thereby excluding Tenant and its officers, principals, agents,
employees, contractors, representatives and invitees. If Landlord elects to so
exclude Tenant from the Premises without terminating this Lease or Tenant's
right to possession of the Premises pursuant to the provisions of this Lease,
then Landlord shall be obligated to provide Tenant a key to re-enter the
Premises only upon payment in full of all delinquent Rent and other amounts due
under this Lease and the curing of all other defaults, if any. If this Lease or
Tenant's right of possession of the Premises is terminated, Landlord shall have
no obligation to provide Tenant a key to re-enter the Premises, but Landlord
will, during Landlord's regular business hours, at Landlord's convenience and
upon written request by Tenant, escort Tenant or its authorized personnel to the
Premises to retrieve personal belongings of Tenant's employees and any property
of Tenant.
(d) If Landlord terminates this Lease or Tenant's right to
possession (without terminating the Lease), Landlord shall use commercially
reasonable efforts to mitigate Landlord's damages by re-letting the Premises
following Tenant's vacancy thereof, but in doing so, Tenant agrees that Landlord
shall not be required to (i) give preference to re-letting the Premises prior to
leasing other space that Landlord has available, i.e., any prospective tenant's
space requirements will dictate Landlord's leasing activities, (ii) expend
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any sums to so re-let or (iii) re-let at rental rates less than rental rates
then being offered to new tenants of the Building. Landlord shall not be liable
for nor shall Tenant's obligation hereunder be diminished because of Landlord's
failure to relet the Premises or collect any rentals due in respect of such
reletting.
8.3 LANDLORD'S RIGHT TO CURE DEFAULTS. All agreements and provisions to be
performed by Tenant under any of the terms of this Lease shall be at Tenant's
sole cost and expense and without any abatement of Rent. If Tenant shall fail to
pay any sum of money, other than Stated Rentals, required to be paid by it
hereunder or shall fail to cure any default and such failure shall continue for
ten (10) days, or such longer period elsewhere provided, after notice thereof by
Landlord, then Landlord may, but shall in no event be obligated to, make any
such payment or perform any such act on Tenant's account, and such cure by
Landlord shall not be deemed a waiver by Landlord of any of its other remedies
or a release of Tenant from any obligations hereunder. All sums so paid by
Landlord and all costs incurred by Landlord in taking such action shall be
deemed additional rent hereunder and shall be paid to Landlord on demand, and
Landlord shall have (in addition to all other rights and remedies of Landlord)
the same rights and remedies in the event of the non-payment thereof by Tenant
as in the case of default by Tenant in the payment of Rent hereunder.
8.4 NON-WAIVER. Failure of Landlord to declare any default immediately
upon occurrence thereof, or delay in taking any action in connection therewith,
shall not waive such default, but Landlord shall have the right to declare any
such default at any time and take such action as might be lawful or authorized
hereunder, either in law or in equity.
8.5 HOLDING OVER. If Tenant continues in occupancy of the Premises after
expiration or termination of this Lease without the written consent of Landlord,
Tenant shall pay as Rent for the holdover period (pro rated on a daily basis) an
amount equal to one hundred fifty (150%) percent of the Stated Rentals payable
immediately prior to the expiration or termination. No holding over by Tenant
after the term of this Lease without the written consent of Landlord shall be
construed to extend the term hereof. Any holding over with the written consent
of Landlord shall constitute this a tenancy at sufferance relationship between
Landlord and Tenant, unless specifically stated otherwise in such consent. The
provisions of this paragraph shall survive the expiration or termination of this
Lease.
8.6 LANDLORD'S DEFAULT. Landlord shall not be deemed in default hereunder
unless Tenant shall have given Landlord written notice of such default
specifying such default with particularity and Landlord shall thereupon have
thirty (30) days in which to cure any
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default unless such default cannot reasonably be cured within such period
wherein Landlord shall not be in default if it commences to cure the default
within the thirty (30) day period and diligently pursues completion of same. If
Landlord disputes the existence of such default, Landlord's commencement to cure
any alleged default shall not be an admission by Landlord that it is in default,
nor shall anything herein abrogate or diminish Tenant's obligation to mitigate
its damages. In the event of any default by Landlord, Tenant agrees that its
exclusive remedy shall be an action for damages, except that Tenant shall have
the right to bring an action for specific performance if Tenant is not in
default.
9.
9.1 ASSIGNMENT OR SUBLEASE BY TENANT.
(a) Tenant shall not assign this Lease, sublet all or any part of
the Premises or allow the Premises to be used or occupied by others (any such
event being referred to herein as a "Transfer"), or mortgage or otherwise
encumber its leasehold estate under this Lease or its property within the
Premises, without Landlord's prior written consent, which consent shall not to
be unreasonably withheld, conditioned or delayed.
(b) Tenant shall give Landlord at least thirty (30) days advance
written notice of any proposed Transfer, stating the anticipated terms thereof.
Landlord shall then have a period of fifteen (15) days following receipt of such
notice within which to notify Tenant in writing that Landlord elects to either
(i) terminate this Lease as to the space so affected, in which event Tenant
shall be relieved of all obligations hereunder as to such space arising from and
after such date, or (ii) consent to the proposed Transfer, subject to Landlord's
subsequent written approval of the proposed transferee. Notwithstanding the
foregoing, Landlord will not have a right of re-capture if Tenant continues to
occupy more than fifty (50%) percent of the Premises.
(c) Tenant agrees that it will be reasonable for Landlord to
withhold its consent to a proposed Transfer if any one of the following is true,
(i) Tenant is then in default under the Lease beyond any applicable notice and
cure period, (ii) the nature and character of the proposed transferee, its
business activities or its intended use of the Premises are not consistent with
the standards of the Building in Landlord's sole judgment, (iii) the proposed
transferee (including any "Affiliate" as defined in Paragraph (f), below) has a
net worth less than that of Tenant on the anticipated date of such proposed
Transfer, (iv) the proposed occupancy would impose an extra burden upon the
Building systems or Landlord's ability to provide services to the other tenants
of the Buildings, (v) the granting of such consent would constitute a default
under any
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other agreement to which Landlord is a party or by which Landlord is bound,
including, without limitation, any exclusives previously granted to other
tenants of the Project as of the date of this Lease and any restrictions on
leasing contained in any other leases of space in the Building, which Tenant has
written notice of prior to any approved assignment or sublease, or (vi) the
proposed transferee is then a tenant in the Building (unless Landlord has no
available space for such tenant's expansion) or has executed a document to
become a tenant in a Building.
(d) If Landlord consents to a Transfer, Tenant agrees that one-half
of all Rent amounts payable to Tenant in respect of the Transfer (net of the
costs incurred by Tenant with respect to such Transfer) in excess of the Stated
Rentals for the Premises or the portion thereof subject to the Transfer shall be
paid to Landlord as additional rental hereunder immediately upon Tenant's
receipt thereof. Tenant acknowledges and agrees that, notwithstanding Landlord's
consent to any Transfer, Tenant shall remain directly and primarily liable for
the performance of all the obligations of Tenant hereunder except as set forth
in Section 9.1(b)(i) (including, without limitation, the obligation to pay all
Stated Rentals). The consent by Landlord to any Transfer shall not be deemed in
any manner to be a consent to a use not permitted under Section 1.5(a). Any
consent by Landlord to a particular Transfer shall not constitute Landlord's
consent to any other or subsequent Transfer.
(e) For purposes of this Section 9.1, if Tenant is a corporation,
partnership or limited liability company, the shares or interests of which at
the time of execution of this Lease or during the term hereof are or shall be
held by fewer than one hundred (100) persons, and if at any time during the term
of this Lease a majority or controlling amount of shares or interests shall be
transferred other than by bequest, inheritance, inter vivos gift or transfer in
trust, or to an Affiliated Entity as provided in Paragraph (f) below, without
the prior written consent of Landlord, then such transfer of shares or interests
shall be deemed to be an assignment of this Lease.
(f) Notwithstanding Sections 9.1(b) and (e) above, and provided no
Event of Default has occurred and has not been cured within any applicable cure
period under this Lease, Tenant may effect a Transfer to any Affiliated Entity
without Landlord's prior consent provided Tenant delivers to Landlord a copy of
the executed Transfer documents on a Landlord approved form within thirty (30)
days after such Transfer. Tenant or successor Affiliated Entity, as applicable,
shall not be released of any of its liabilities and obligations under this Lease
including any such liabilities or obligations related to the Transfer. For
purposes hereof, "Affiliated Entity" shall mean an entity which has a net worth
equal to or greater than Tenant on the date of the Transfer and which (i)
controls, is controlled by, or is
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in common control with Tenant; or (ii) results from the merger or consolidation
with Tenant; or (iii) acquires all or substantially all of the assets of,
interest in or stock of Tenant; or (iv) is a successor to Tenant by name change
or a change of the state of incorporation.
(g) Notwithstanding Sections 9.1(b) and (e) above, and provided no
Event of Default has occurred and has not been cured within any applicable cure
period under this Lease, Tenant may effect a Transfer in the following instances
without Landlord's prior consent provided Tenant delivers to Landlord a copy of
the executed Transfer documents on a Landlord approved form within thirty (30)
days after such Transfer: (i) in the event Tenant becomes a public company; or
(ii) in the event Tenant is involved in a merger, exchange or other transaction
in which Tenant is not the surviving entity and the transferee has a net worth
of at least $100 million on the date of the Transfer.
(h) Tenant agrees to pay Landlord's reasonable attorneys' fees and
costs if any subletting or assignment is not on Landlord's approved form.
9.2 ASSIGNMENT BY LANDLORD. Landlord shall have the right to transfer
and assign its rights and obligations hereunder to any person or entity
acquiring ownership of the Project, and in such event and upon such transfer
(any such person or entity to have the benefit of, and be subject to, the
provisions of Section 10.1 and 10.2 hereof) no further liability or obligation
shall thereafter accrue against Landlord hereunder, provided such transferee or
assignee assumes full responsibility for Tenant's security deposit described in
Section 2.4 hereof.
10.
10.1 PEACEFUL ENJOYMENT. Landlord covenants that Tenant shall and may
peacefully have, hold and enjoy the Premises from those parties claiming
possession or rights to the Premises by or through Landlord, subject to the
other terms hereof, provided that Tenant pays the Rent and other sums herein
recited to be paid by Tenant and performs all of Tenant's covenants and
agreements herein contained. It is understood and agreed that this covenant and
any and all other covenants of Landlord contained in this Lease shall be binding
upon Landlord and its successors only with respect to breaches occurring during
its and their respective ownership of Landlord's interest hereunder.
10.2 LIMITATION OF LANDLORD'S PERSONAL LIABILITY. Tenant agrees to look
solely to Landlord's interest in the Project for the recovery of any judgment
against Landlord, it being agreed that Landlord, its managers, members,
partners, officers, directors and employees shall
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never be personally liable for any such judgment. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that
Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest or any suit or action in connection with
enforcement or collection of amounts which may become owing or payable under or
on account of insurance maintained by Landlord.
10.3 LIMITATION OF INTEREST HOLDER'S PERSONAL LIABILITY. If an Interest
Holder shall succeed to the interest of Landlord, the Interest Holder shall have
no personal liability as successor to Landlord, and Tenant shall look only to
the estate and property of the Interest Holder in the Project or the proceeds
thereof for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial procedure) requiring the payments of money in the
event of any default by the Interest Holder as landlord under the Lease. In
addition, the Interest Holder as holder of the Mortgage Document or as landlord
under the Lease if it succeeds to that position, shall in no event (a) be liable
to the Tenant for any act or omission of any prior landlord, (b) be subject to
any offset or defense which Tenant might have against any prior landlord, (c) be
liable to the Tenant for any liability or obligation of any prior landlord
occurring prior to the date that the Interest Holder or any subsequent owner
acquires title to the Project, or (d) be liable to the Tenant for any security
or other deposits given to secure the performance of Tenant's obligations under
the Lease, except to the extent that the Interest Holder shall have acknowledged
actual receipt of such security or other deposits in writing. No other property
or assets of the Interest Holder shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to the Lease, the relationship of the landlord and the tenant thereunder
or the Tenant's use or occupancy of the Premises.
11.
11.1 SUBORDINATION.
(a) Tenant covenants and agrees with Landlord that this Lease is
subject and subordinate to any mortgage, deed of trust, ground lease and/or
security agreement which may now or hereafter encumber the Project or any
interest of Landlord therein, and to any advances made on the security thereof
and to any and all increases, renewals, modifications, consolidations,
replacements and extensions thereof. This clause shall be self-operative and no
further instrument of subordination need be required by any owner or holder of
any such ground lease, mortgage, deed of trust or security agreement. In
confirmation of such subordination, however, at Landlord's written request,
Tenant shall execute any appropriate certificate or instrument that Landlord may
request within ten (10)
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days after being requested by Landlord to do so. In the event of the enforcement
by the ground lessor, the mortgagee, the trustee, the beneficiary or the secured
party (any such party being herein referred to as "Interest Holder") under any
such ground lease, mortgage, deed of trust or security agreement (such documents
being referred to herein as "Mortgage Documents") of the remedies provided for
by law or by such ground lease, mortgage, deed of trust or security agreement,
Tenant, upon written request of the Interest Holder or any person or party
succeeding to the interest of Landlord as a result of such enforcement, will
attorn to and automatically become the tenant of such Interest Holder or
successor in interest without any change in the terms or other provisions of
this Lease; provided, however, that such Interest Holder or successor in
interest shall not be bound by (i) any payment of Rent for more than one month
in advance except prepayments in the nature of security for the performance by
Tenant of its obligations under this Lease, or (ii) any amendment or
modification of this Lease made without the written consent of such Interest
Holder or such successor in interest, unless such amendment or modification
takes effect prior to the Interest Holder assuming that capacity. Upon request
by such Interest Holder or successor in interest, whether before or after the
enforcement of its remedies, Tenant shall execute and deliver an instrument or
instruments confirming and evidencing the attornment herein set forth. This
Lease is further subject to and subordinate to all matters of record in
Middlesex County, New Jersey.
(b) Notwithstanding anything to the contrary set forth in Section
11.1(a), above, any Interest Holder may at any time subordinate its lien to this
Lease in whole or in part, without any need to obtain Tenant's consent, and
without regard to their respective dates of execution, delivery or recordation.
In that event, to the extent set forth in such document, the Interest Holder
shall have the same rights with respect to this Lease as would have existed if
this Lease had been executed, and a memorandum thereof recorded, prior to the
execution, delivery and recordation of the mortgage or deed of trust. In
confirmation of such subordination, however, Tenant shall execute any
appropriate certificate or instrument that Landlord or the Interest Holder may
request within ten (10) days after being requested to do so.
(c) As soon as reasonably practical prior to the Commencement Date,
Landlord agrees to obtain from the current Interest Holder a non-disturbance
agreement with Tenant, in a form satisfactory to such Interest Holder stating
that Tenant's right to the continued use and possession of the Premises shall be
under the same terms and conditions as set forth in this Lease provided that at
such time no Event of Default shall have occurred and be continuing. With
respect to any subsequent Interest Holder, Landlord shall obtain a
non-disturbance agreement in a form satisfactory to such Interest Holder, unless
such non-disturbance agreement is not generally
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commercially available or would create a financial burden on Landlord.
(d) Landlord hereby waives any rights it may have under N.J.S.A.
2A:42-1 and N.J.S.A. 2A:42-2 to a lien for up to one year's rent on any personal
property of Tenant subject to execution attachment or other process by any third
party.
11.2. ESTOPPEL CERTIFICATE. Tenant agrees periodically to furnish within
ten (10) days after written request by Landlord a certificate signed by a Tenant
certifying (a) that the lease is in full force and effect and unmodified (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), (b) as to the Commencement Date and the
date through which Base Rental, Estimated Additional Rental and Additional
Rental have been paid, (c) that Tenant has accepted possession of the Premises
and that any improvements required by the terms of this Lease to be made by
Landlord have been completed to the satisfaction of Tenant, (d) that except as
stated in the certificate no rental under this Lease has been paid more than
thirty (30) days in advance of its due date, (e) that the address for notices to
be sent to Tenant is as set forth in this Lease (or has been changed by notice
duly given and is as set forth in the certificate), (f) that except as stated in
the certificate, Tenant, as of the date of such certificate, has no charge,
lien, or claim of offset under this Lease or otherwise against Rent or other
charges due or to become due hereunder, (g) that except as stated in the
certificate, Landlord is not then in default under this Lease, (h) that there
are no renewal or extension options, purchase options, rights of first refusal
or the like in favor of Tenant except as set forth in this Lease and (i) as to
such other matters as may be requested by Landlord. Any such certificate may be
relied upon by any existing or prospective Interest Holder or purchaser of the
Building or the Land or any part thereof or interest of Landlord therein.
Landlord agrees periodically to furnish within ten (10) days after written
request by Tenant a certificate signed by Landlord certifying (a) that the Lease
is in full force and effect and unmodified (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), (b) as to the Commencement Date and the date through which Base
Rental, Estimated Additional Rental and Additional Rental have been paid, (c)
that the address for notices to be sent to Landlord is as set forth in this
Lease (or has been changed by notice duly given and is as set forth in the
certificate), (d) that, except as stated in the certificate, Landlord (to the
Landlord's knowledge), as of the date of such certificate, has no charge, lien,
or claim of offset under this Lease or otherwise against Rent or other charges
due or to become due hereunder, (e) that, except as stated in the certificate,
Tenant (to the Landlord's knowledge), is not then in default under
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this Lease and (f) as to such other matters as may be reasonably requested by
Tenant.
11.3. RIGHT TO CURE LANDLORD'S DEFAULT. Prior to exercising any remedy for
an alleged default by Landlord hereunder, Tenant will give written notice to any
Interest Holder of which Tenant has notice specifying the nature of the alleged
default. Each Interest Holder shall have the right (but not the obligation) for
a period of thirty (30) days after notice from Tenant to cure or remedy such
default (or if the Interest Holder cannot reasonably cure or remedy such default
within said thirty-day period, such longer period as is necessary to allow the
Interest Holder to effect such cure or remedy, provided that the Interest Holder
commences its good faith efforts to cure or remedy such default within said
thirty (30) day period), and Tenant will accept such curative or remedial action
taken by the Interest Holder with the same effect as if such action had been
taken by Landlord.
11.4. COMPLIANCE WITH CERTAIN MORTGAGEE REQUIREMENTS. Tenant acknowledges
that Mercantile-Safe Deposit & Trust Company, as Trustee of the AFL-CIO Building
Investment Trust (the "Trustee") is the current Interest Holder of a mortgage
encumbering the Project. Tenant agrees, warrants and represents as follows:
(a) Notwithstanding any provision of the Lease to the contrary,
Tenant agrees that if, at any time during the term of the Lease, it shall
construct or alter the improvements on or about the Premises, Tenant shall cause
such construction or alteration work to be performed by contractors who shall
employ craft workers who are members of unions that are affiliated with the
AFL-CIO Building and Construction Trades Department (the "Labor Covenant").
Tenant shall include the Labor Covenant in each of its contracts for such
construction or alteration work and, if requested by Landlord, furnish evidence
that the Labor Covenant is being fully and faithfully observed. Tenant shall
require the contractor to include the Labor Covenant and the obligation to
provide such evidence in each subcontract entered into by the contractor for
such construction or alteration work. In addition, Tenant shall provide such
evidence as Trustee may reasonably require, from time to time during the course
of such construction or alteration work. Tenant agrees that it shall incorporate
the foregoing requirements in any sublease of the Premises.
(b) Tenant represents and warrants to Trustee that neither Tenant
nor any guarantor of Tenant's obligations under the Lease is (i) a party in
interest, as defined in Section 3(14) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), to the AFL-CIO Building Investment Trust
("the Trust"), or any of the plans participating therein, a list of which plans
is attached hereto and made a part hereof for all purposes as EXHIBIT I, or (ii)
a
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disqualified person under Section 4975(e)(2) of the Internal Revenue Code of
1986, as amended, with respect to the Trust or the plans participating therein
and listed on EXHIBIT I. Neither Tenant nor any guarantor of Tenant's
obligations under the Lease shall engage in any transaction that would cause the
loan secured by the Indenture, or the exercise by the Trustee of any rights
thereunder, to be a non-exempt prohibited transaction under ERISA.
Notwithstanding any provision of the Lease to the contrary, Tenant shall not
assign the Lease or sublease all or any portion of the Premises unless (i) such
assignee or subtenant delivers to Trustee a certification (in form and content
satisfactory to Trustee) with respect to the status of such assignee or
subtenant (and any guarantor of such assignee's or subtenant's obligations) as a
party in interest and a disqualified person, as provided above; and (ii) such
assignee or subtenant undertakes not to engage in any transaction that would
cause the loan secured by the Indenture to constitute a non-exempt prohibited
transaction under ERISA.
(c) Notwithstanding any provision of the Lease to the contrary,
Tenant shall not (i) sublease all or any portion of the Premises under a
sublease in which the rent is based upon the net income or net profits of any
person or (ii) enter into any other transaction with respect to the Lease or the
Premises such that the revenues to be received by Trustee from time to time in
connection with the loan secured by the Indenture would, as a result of such
transaction, be subject to the Unrelated Business Income Tax under Sections 511
through 514 of the Internal Revenue Code of 1986, as amended.
(d) Tenant agrees that it shall incorporate the requirements of this
Section 11.4 in any sublease of the Premises.
(e) The provisions of this Section 11.4 shall apply as long as the
current Interest Holder or its affiliate is the Interest Holder or an owner of
the Project, or as long as any union is an Interest Holder or an owner of the
Project.
12.
12.1. FOOD SERVICE FACILITY. The adjacent building, 100 College Road West,
contains a food service facility which currently provides casual dining for
Building occupants and their guests. The hours of operation of the facility are
7:00 a.m. to 9:30 a.m. and 11:30 a.m. to 2:30 p.m. If the food service facility
in the adjacent building is in operation and available for use by Tenant, the
operating costs of the food service space (inclusive of the cost of equipment
leases and other reasonable expenses but exclusive of any and all expenses of
the operator, including electric, and net of amounts, if any, received from the
operator, including amounts to recover capital improvements and costs of
furniture, fixtures and equipment), shall
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be part of the Operating Expenses and shall be allocated on a pro rata basis
between 100 College Road West and the Building.
12.2. FITNESS CENTER. The adjacent building, 100 College Road West,
contains a physical fitness center which provides exercise equipment, lockers
and showers. If the fitness center is open and available for use by Tenant, the
provisions of this paragraph shall apply. The fitness center is expected to be
open during the adjacent building's normal operating hours and it will be
accessible to Tenant's personnel on a non-exclusive basis. Tenant may also have
access to the fitness center outside of the normal operating hours of the
adjacent building in the discretion of the landlord of the adjacent building,
provided Tenant pays all costs associated with furnishing that service,
including but not limited to, the actual costs of the HVAC on a pro rata basis
with any other tenants who may have requested after hours use of the facility
for the same time and provided Tenant meets any other conditions the landlord of
the adjacent building may impose. The operating costs of the fitness center
(inclusive of the cost of equipment leases and other reasonable expenses) shall
be part of the Operating Expenses and shall be allocated on a pro rata basis
between 100 College Road West and the Building.
The food service facility and the fitness center are amenities only and
any failure to provide those amenities shall not be considered a breach or
default of Landlord's obligations under this Lease.
12.3. NAME CHANGE. Landlord reserves and shall have the right at any time
and from time to time to change the name of the Building as Landlord may deem
advisable, and Landlord shall not incur any liability whatsoever to Tenant as a
consequence thereof.
12.4. LEGAL FEES. If either party defaults in the performance of any of
the terms, agreements or conditions contained in this Lease and the other party
places the enforcement of this Lease, or any part thereof, or the collection of
any Rent due or to become due hereunder, or recovery of the possession of the
Premises, in the hands of an attorney who files suit upon the same, and should
such non-defaulting party prevail in such suit, the defaulting party agrees to
pay the other party's reasonable legal fees.
13.
13.1. NOTICES.
(a) Any notice or other communications to Landlord or Tenant
required or permitted to be given under this Lease (and copies of the same to be
given to the parties as below described) must be in writing and shall be
effectively given if delivered to the addresses
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for Landlord and Tenant set forth below, or if sent by United States mail,
certified or registered, return receipt requested, to said addresses:
The address for notices to Landlord is:
Patrinely Group, LLC
1980 Post Oak Blvd., Suite 1600
Houston, Texas 77056
Attn: C. Dean Patrinely
with a copy to: Patrinely Group, LLC
1980 Post Oak Blvd., Suite 1600
Houston, Texas 77056
Attn: Michael C. Nicholls
Patrinely Group, LLC
7475 Wisconsin Avenue, Suite 1150
Bethesda, Maryland 20814
Attn: William S. Glading
Patrinely Group, LLC
150 College Road West
Princeton, New Jersey 08540
Attn: Phillip P. Benjamin
Until Tenant occupies the Premises, after which time Tenant's address for
notices will be the Premises, the address for notices to Tenant is:
Physiome Sciences, Inc.
307 College Road East
Princeton, New Jersey 08540
Attn: Jane M. Maida
with a copy to: Buchanan Ingersoll
650 College Road East, 4th Floor
Princeton, New Jersey 08540
Attn: Stuart B. Dember, Esq.
(b) Any notice mailed shall be deemed to have been given on the
second business day following the date of deposit of such item in a depository
of the United States Postal Service. Notice effected other than by mail shall be
deemed to have been given at the time of actual delivery. Either party shall
have the right to change its address to which notices shall thereafter be sent
by giving the other written notice thereof. Additionally, Tenant shall send
copies of all notices required or permitted to be given to Landlord to each
Interest Holder who notifies Tenant in writing of its interest and the address
to which notices are to be sent.
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13.2. MAILING ADDRESS. As of the Lease Commencement the Premises shall
have a Princeton mailing address.
13.3. MISCELLANEOUS.
(a) This Lease shall be binding upon and inure to the benefit of the
successors and assigns of Landlord, and shall be binding upon and inure to the
benefit of Tenant, its successors, and, to the extent assignment may be approved
by Landlord hereunder, Tenant's assigns. The pronouns of any gender shall
include the other genders, and either the singular or the plural shall include
the other.
(b) All rights and remedies of Landlord under this Lease shall be
cumulative and none shall exclude any other rights or remedies allowed by law;
and this Lease is declared to be a New Jersey contract, and all of the terms
thereof shall be construed according to the laws of the State of New Jersey.
(c) This Lease may not be altered, changed or amended, except by an
instrument in writing executed by all parties hereto. Further, the terms and
provisions of this Lease shall not be construed against or in favor of a party
hereto merely because such party is the "Landlord" or the "Tenant" hereunder or
such party or its counsel is the draftsman of this Lease.
(d) The terms and provisions of all Exhibits described herein and
attached hereto are hereby made a part hereof for all purposes. This Lease
constitutes the entire agreement of the parties with respect to the subject
matter hereof, and all prior correspondence, memoranda, agreements or
understandings (written or oral) with respect hereto are merged into and
superseded by this Lease.
(e) If Tenant is a corporation, partnership or other entity, Tenant
warrants and represents that (i) Tenant is a duly organized and existing legal
entity in the State of New Jersey, and is authorized to do business in and in
good standing with the State of New Jersey, (ii) Tenant has full right and
authority to execute, deliver and perform this Lease and all consents or
approvals required of third parties (including but not limited to its managers,
members, board of directors or partners) for the execution, delivery and
performance of this Lease have been obtained, (iii) the person executing this
Lease on behalf of Tenant is authorized to do so and (iv) upon request by
Landlord, such person shall deliver to Landlord satisfactory evidence of his/her
authority to so execute this Lease on behalf of Tenant.
(f) Tenant shall have no right, and Tenant hereby waives and
relinquishes all rights which Tenant may otherwise have, to
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withhold, deduct from or offset against any Rent or other sums to be paid to
Landlord by Tenant hereunder or in connection herewith.
(g) Whenever in this Lease there is imposed upon Landlord the
obligation to use its best efforts, reasonable efforts or diligence, Landlord
shall be required to do so only to the extent the same is economically feasible
and otherwise will not impose upon Landlord extreme financial or other business
burdens. Time is of the essence in the payment and performance of Tenant's
obligations, and in the performance of Landlord's obligations and the exercise
of their respective rights, under this Lease.
(h) If any term or provision of this Lease, or the application
thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each provision of this Lease
shall be valid and shall be enforceable to the extent permitted by law.
(i) Neither this Lease nor any memorandum hereof shall be recorded
in any public records without the prior written consent of Landlord.
(j) Landlord has agreed to pay to Julien J. Studley, Inc. ("Tenant's
Broker") and to Cushman & Wakefield of N.J., Inc. and Crimson Financial, L.L.C.
("Landlord's Brokers") real estate brokerage commissions as set forth in
separate commission agreements between Landlord and Tenant's Broker and between
Landlord and Landlord's Brokers. Landlord and Tenant hereby represent and
warrant each to the other that they have not employed any other agents, brokers
or other such parties in connection with this Lease, and each agrees that they
shall hold the other harmless from and against any and all claims of all other
agents, brokers or other such parties claiming by, through or under the
respective indemnifying party.
(k) At any time during the term of this Lease that Tenant is not a
"publicly traded company" (i.e., ownership interests are listed on a public
securities exchange) or a governmental entity, Tenant shall furnish to Landlord
(and to Trustee as the current Interest Holder) (i) an unaudited financial
statement showing the complete results of Tenant's operations for its
immediately preceding fiscal year within ninety (90) days after the end of each
fiscal year and (ii) a financial statement, in form and substance satisfactory
to Landlord (and each Interest Holder of which Tenant has notice) (the
"Financial Materials"), showing the complete results of Tenant's operations for
its immediately preceding fiscal year, certified as true and correct by a
certified public accountant and prepared in accordance with generally accepted
accounting principles applied on a consistent basis from year to year, within
one hundred and twenty
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(120) days after the end of each fiscal year. Upon Landlord's request, Tenant
shall provide Landlord with unaudited Financial Materials for the immediately
preceding quarter as soon as practicable after such financial statements become
available. Landlord may provide such quarterly financial statements to Trustee,
if requested by Trustee. Landlord agrees to keep all Tenant Financial Materials
received by it pursuant to this Paragraph confidential and shall not supply
copies of such statements or disclose the information contained therein to any
third parties except as permitted hereunder. Landlord shall enter into, and
before Trustee receives the Financial Materials it shall enter into, a
Non-Disclosure Agreement in the form attached as EXHIBIT J hereto as a
precondition to Tenant's obligation to provide Landlord and Trustee with copies
of its Financial Materials. Landlord shall have the right to deliver copies of
Tenant's Financial Materials to prospective future Interest Holders and to
prospective purchasers ("Third Parties") provided:
(i) such Third Party requests copies of Tenant's Financial
Materials, and
(ii) Landlord limits such disclosure to no more than five (5)
prospective Interest Holders or five (5) prospective purchasers, as applicable
as part of any one potential financing or sale, and
(iii) such Third Party has executed and delivered to Tenant a
Non-Disclosure Agreement in a form substantially similar to the form attached
hereto as EXHIBIT J.
(l) Parking shall be provided to Tenant during the term of this
Lease in accordance with the terms and conditions set forth in EXHIBIT K
attached hereto and made a part hereof for all purposes.
(m) Tenant shall have the option to renew the term of this Lease
in accordance with the terms and conditions set forth in EXHIBIT L attached
hereto and made a part hereof for all purposes.
(n) Tenant shall have a right to lease additional space in the
Building in accordance with the terms and conditions of EXHIBIT M attached
hereto and made a part hereof for all purposes.
(o) Tenant shall have the right to install and maintain a
"Satellite Dish" on the roof of the Building at Tenant's expense in accordance
with the terms and conditions of EXHIBIT N attached hereto and made a part
hereof for all purposes, said EXHIBIT N to be signed on or before the
installation of the Satellite Dish.
(p) Landlord, Tenant and Trustee shall enter into a Subordination,
Attornment and Non-Disturbance Agreement, the form of
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which is attached as EXHIBIT O hereto and made a part hereof for all purposes.
(q) Tenant acknowledges that it does not hold or claim to hold any
or all of the fee simple estate in and to the Premises or to the property of
which the Premises are a part (including but not limited to the Building, the
Project or any other improvements thereon).
(r) Landlord has hired the Patrinely Group, LLC to manage the
Building in a manner consistent with other class A office buildings in the
marketplace.
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IN TESTIMONY WHEREOF, the parties hereof have executed this Lease on the
respective dates set forth beside the signature block for each such party, to be
effective as of the later date, if not the same.
LANDLORD
150 College Road, LLC, a Delaware
limited liability company
By: /s/ C. Dean Patrinely
------------------------------
C. DEAN PATRINELY
Date: 12-21-00
TENANT
PHYSIOME SCIENCES, INC., a
Delaware corporation
By: /s/ J. Maida
------------------------------
Name: J. Maida
Title: CFO
Date: 12-18-00
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EXHIBIT A
DESCRIPTION OF PROPERTY
(BLOCK 3, LOT 1.62)
ALL THAT CERTAIN tract or parcel of land situate in the Township of
Plainsboro, County of Middlesex and State of New Jersey, being more particularly
described as follows:
BEGINNING at a point in the northwesterly line of U.S. Route No. 1
(variable width) where the same is intersected, by the division line between
Block 3, Lots 1.61 and 1.62, and from said beginning point runs; thence, along
the aforesaid division line the following seven courses
(1) N.29 degrees 11'08"W. 449.30 feet to a point; thence
(2) N. 75 degrees 11'27" W. 99.89 feet to point; thence,
(3) N. 14 degrees 48'33" E. 136.50 feet to a point; thence,
(4) N. 75 degrees 11'27" W. 14.00 feet to a point; thence,
(5) N. 14 degrees 48'33" E. 163.51 feet to a point; thence,
(6) N. 75 degrees 11'27" W. 13.00 feet to a point; thence,
(7) N. 14 degrees 48'33" E.105.75 feet to a point in the southwesterly
line of Block 3, Lot 3.10; thence, along the same,
(8) S. 74 degrees 40'40" E. 400.47 to a point comer to the same; thence,
still along the same
(9) N. 42 degrees 53'20" E. 33.79 feet to a point corner to Block 3, Lot
20; thence, along the same
(10) S. 47 degrees 06'40" E. 375.50 feet to a point in the northwesterly
line of U.S. Route No. 1 (variable width); thence, along the same
the following four courses
(11) S. 42 degrees 53'42" W. 174.72 feet to a point; thence,
(12) N. 75 degrees 04'02" W. 60.80 feet to a point on a curve; thence, on
a curve to the right with a radius of 460.00 feet
(13) Southwestwardly, an arc distance of 224.50 feet, a central angle of
27 degrees 57'48 with a chord of S. 58 degrees 54'52" W. 222.28 feet
to a point of tangency; thence,
EXHIBIT B
FLOOR PLAN OF THE PREMISES LEVEL 3
EXHIBIT C
DETERMINATION OF RENTABLE AREA
Tenant Rentable Area: 25,338 square feet
EXHIBIT D
WORK LETTER FOR TENANT'S WORK TO BE PERFORMED BY LANDLORD
THIS WORK LETTER ("Work Letter") is executed concurrently with, attached
to and made a part of that certain Lease Agreement ("Lease") dated December 21,
2000 by and between 150 College Road, LLC, a Delaware limited liability company
("Landlord"), and Physiome Sciences, Inc., a Delaware corporation ("Tenant").
All capitalized terms used in this Work Letter which are defined in the Lease
shall have the same respective meanings as given in the Lease. For the
considerations set forth in the Lease and the mutual covenants hereinafter
contained, Landlord and Tenant covenant and agree as follows:
1.
LEASED PREMISES IMPROVEMENTS
1.1. Tenant shall comply with all its obligations contained in this Work
Letter. Landlord, through its Contractor (as hereinafter defined), will furnish
and install within the Premises (25,338 rentable square feet) those items of
general construction ("Tenant's Work") shown on the final Working Drawings (as
hereinafter defined) in accordance with the terms of this Work Letter.
2.
SCOPE OF IMPROVEMENTS; RESPONSIBILITY FOR COSTS
2.1. BUILDING SHELL. Tenant acknowledges that Landlord has constructed or shall
construct, through its Contractor, the Building shell ("Building Shell") along
with surface parking. Included within the Building Shell will be certain
Building standard improvements
Finished Core Finished core areas include all toilet rooms, elevators,
stairwells, and first floor common area lobbies.
Structure Steel frame, 80 lbs/sq. ft load capacity plus 20 lbs/sq. ft.
live load at perimeter bays.
Exterior Architectural precast and metal curtainwall with 1" insulated,
"Low E" windows.
Column Spacing 40 feet by 30 feet perimeter bays
Walls Core walls facing tenant space will be gypsum wallboard, taped
and floated, ready for tenant finish. Exterior columns and
under sill walls will be metal framed and insulated, but
unfinished to accommodate tenant needs for electrical,
telephone and data receptacles. Interior columns will not be
enclosed.
1
Ceilings Structural Slab, ready to receive tenant finishes; no ceiling
tile or grid.
Floors Concrete, ready to receive tenant finishes
Doors Tenant supplies and installs all doors within tenant space
including all entry doors into the Premises. Landlord shall
supply doors for building core spaces (i.e. stairwells,
mechanical rooms, etc.)
HVAC Two, 115 ton (nominal) air-cooled packaged VAV rooftop Air
Conditioning units with electric warm-up heating coil,
supplying in cooled or heated air.
Building HVAC design criteria shall be:
Heating: maintain indoor air at 72 degrees F DB, when outdoor
temperature is 6 degrees F DB and wind velocity is 15mph.
Cooling: Maintain indoor air at 75 degrees F, 50% relative
humidity maximum inside occupied areas, when outdoor
temperature is 95 degrees F DB and 75 degrees F WB
(coincidental).
Tenant supplied, paid for and installed medium pressure
ductwork supplies air from the vertical supply air shaft to
tenant supplied, paid for and installed ceiling mounted fan
powered terminal units (FPTU) with electric heating coils for
the perimeter zones and tenant supplied, paid for and
installed variable air volume (VAV) terminal units for the
interior zones
Fresh air will be provided to each floor through the roof top
units at the rate of 20CFM per person consistent with current
ASHRAE Standard 62-1989.
All Tenant supplied and installed control panel will interface
with base building controls and equipment.
Supplemental air conditioning equipment for special tenant
uses may be installed by Tenant at its cost utilizing air
cooled units located on the building roof within the screened
enclosure, or utilizing dry cooler type equipment installed in
an area agreed to by Landlord.
The cost of any HVAC items, ductwork and/or FPTU or VAV boxes
beyond the vertical supply shaft that may be installed by
Landlord shall be paid by Tenant.
Fire Sprinklers To satisfy the building code and local authorities, fire
sprinklers are installed for light hazard occupancy (normal
office use). Semi-recessed sprinkler heads spaced to give
maximum coverage of 225 square feet per head. The cost of this
initial coverage is by Tenant and Tenant may add to this
existing system at its cost as required by the fit-out design
and Building Code authorities.
Electrical System The entire electrical distribution system shall comply with
local codes and the National Electrical Code as well as any
additional applicable code authorities. The electrical service
will be provided by PSE&G. Cable from the transformer will
serve the main switchboards with 480/277 volt, 3 phase, 60 HZ
power. The main switchboard includes bolted, pressure type,
fusible power switches with high capacity current limiting
fuses and ground
2
fault protection. 480/277 volt panels at each floor will serve
the air conditioning, fan powered terminal units and
electrical heating coils.
Each floor includes one tenant electrical room with 200 AMP,
480/277 volt three phase, four wire service to PSE&G meter
socket. This service will be sized for a total connected load
of 6.0 watts per usable sq ft capacity for Tenant use above
and beyond Building Shell electrical requirements.
Telephone /Fiber Three, 4" floor penetrations for tenant provided services
Optics provided in each central telephone closet. Fiber optic service
is available through an outside vendor.
Life Safety To satisfy the building code and local authorities, the base
building fire alarm system is installed complying with the
current BOCA building code fire alarm requirements, the Life
Safety code and the Americans with Disabilities Act (ADA).
Each floor within the demised premises will have a fire alarm
system direct connection capability for one speaker/strobe per
1,000 net useable square feet and two input/output connections
for interface of supplemental life safety systems. The cost of
the initial coverage is to be paid for by Tenant, and Tenant
may add to this existing system at its cost as required by the
fit-out design.
Security Computerized, cardkey access system is available at all
building entry points and in each elevator. The system will
allow interface with up to four additional Tenant devices.
System to be capable of being remotely monitored. Tenant can
use the Building's base access system at no additional cost,
but must provide any complementary access security devices
(readers, etc.) and connection to the Building Shell
interface.
Plumbing Sanitary waste, vent and water connections are provided at the
central core of the building for use by Tenant.
Window Coverings Provided and installed by Tenant per Tenant's Work Standards,
paragraph 2.4.
Elevators Two hydraulic, 125 feet per minute in the main lobby at 3,000
pound capacity
All additional Tenant's Work shall be constructed pursuant to this Work
Letter.
2.2. Landlord represents to Tenant that to its commercially reasonable
knowledge and ability the Building Shell and all Building Standard Improvements
were or will be constructed in a manner comparable to other class A buildings in
the Princeton market area and, together with the Tenant's Work, in compliance
with all applicable laws pertaining thereto as of the date of construction,
provided Tenant's Architect has designed Tenant's Work in compliance with all
such laws.
3
2.3. TENANT'S WORK. Landlord agrees to furnish and install Tenant's Work within
the Premises as required by Tenant and approved by Landlord pursuant to Section
3 hereof. All costs and expenses of Tenant's Work shall be paid out of the
Allowance (as hereinafter defined) and shall include without limitation the
following items:
(a) All architectural, engineering and consultant fees and expenses, labor and
materials associated with all Tenant's Work, and third party services such as
the selection of colors, finishes, fixtures, furnishings and floor coverings
except such fees and expenses paid directly by Tenant.
(b) All labor and material costs and expenses incurred to comply with applicable
codes and regulations necessitated by Tenant's Space Plan and/or Working
Drawings, including the modification or addition to the Building Standard
Improvements (e.g., UPS loading requirements and/or life safety system
configuration).
(c) All permits, insurance, contractor's fees and overall general conditions for
all Tenant's Work.
(d) Alterations required of the Building Standard structural, mechanical,
electrical, plumbing, and life safety systems necessitated by special conditions
defined by Tenant's Space Plan and/or Working Drawings.
(e) Landlord's Administrative Cost Recovery ("`ACR") shall be two and one-half
percent (2.5%) of the cost of Tenant's Work including any costs associated with
changes to the originally approved Tenant Space Plan. The ACR payable to
Landlord is a fee for Landlord's coordination and oversight of the construction
of Tenant's Work by "Contractor" (as hereinafter defined).
(f) All construction work above and beyond Building Shell and required to
complete Tenant's Work.
(g) All costs of Tenant signage, except for Tenant's name on the Building
Directory.
(h) All costs associated with the placement of a supplemental cooling on the
roof of the Building, together with costs associated with running piping and
electrical conduit to such cooling in a location for such piping and conduit to
be selected by Landlord.
(i) All costs associated with the installation of an exterior generator outlet
in a location, and of a type to be approved by Landlord. Such exterior generator
outlet shall be for Tenant's temporary use of a generator when power to the
Premises is out.
4
Tenant shall comply with all Building rules relating to the parking area and all
fire and life/safety issues when using any generator on a temporary basis.
Tenant shall also restore the Building to its present condition by removing the
exterior generator outlet at the termination of the Lease.
2.4. TENANT'S WORK STANDARDS. Landlord has developed the following tenant work
standards to describe the materials that shall be utilized in the construction
required to complete the Tenant's Work, Provided, however, Landlord in its sole
discretion may make Tenant approved substitutions with materials of equal or
better quality.
(a) PARTITIONS
INTERIOR PARTITION
3-5/8" metal stud, 24" o.c. with 5/8" gyp. bd. each side to
ceiling line, shim at grid as required for tegular ceiling
tile
CORRIDOR PARTITION
3-5/8" metal stud, 24" o.c. with 5/8" gyp. bd. each side to
structure, 3 -1/2" sound attenuation blanket in wall cavity.
Corridor partition shall be a 1 hour assembly.
DEMISING PARTITION
3-5/8" metal stud, 24" o.c. with 5/8" gyp. bd. each side to
ceiling line with pony wall above to structure, 3 -1/2" sound
attenuations blanket in wall cavity an 4-0" to each side of
wall above ceiling line
FIRE RATED PARTITION- ONE HOUR
3 5/8" metal stud, 24" o.c. with 5/8" type "x" gyp. bd. each
side to structure
ACOUSTICAL PARTITION
3-5/8" metal stud, 24" o.c. with 5/8" gyp. bd. each side to
ceiling line, 3 -1/2" sound attenuation blanket in wall cavity
and 4'-0" to each side of wall above ceiling line
(b) DOOR FRAMES
INTERIOR
Full height, 1 -1/2" face dimension, painted hollow metal
frame, full height.
ENTRY
5
Full height, 1 -1/2" face dimension, hollow metal welded frame, painted to
match corridor wall
(c) DOORS
INTERIOR DOOR
Full height, solid core, 1-3/4" thick, paint grade or plain sliced wood
veneer stained to match Building Standard control sample or approved
equal.
SOLID CORE WOOD ENTRY DOOR
Full height, solid core, wood and glass, 1-3/4" thick paint grade plain
sliced wood veneer stained to match Building Standard control sample or
approved equal. Entry doors shall be 20 minute doors in a one hour
assembly.
SINGLE LITE SOLID CORE WOOD ENTRY DOOR
Full height, solid core, wood and glass, 1-3/4" thick paint grade or plain
sliced wood veneer stained to match Building Standard control sample or
approved equal, with 24"X77" clear Superlite glass lite. Entry doors shall
be 20 minute doors in a 1 hour assembly.
(d) HARDWARE
TENANT ENTRY/EXIT LOCKSET
Sargent to match Schlage L9453P 12A 626 - mortise
PASSAGE
Sargent to match Schlage D10S ATH 626
STOREROOM LOCKSET
Sargent to match Schlage D50PD ATH 626
OFFICE LOCKSET
Sargent to match Schlage D50PD ATH 626
DUMMY TRIM
Sargent to match Schlage D170 ATH 626 (X2---one for each side of door)
HINGE
Stanley CB1960 4 -1/2" x 4 -1/2", US26D
FLOOR STOP
Rockwood 440, US 26D
CLOSER
6
LCN 4111 parallel arm closer at entries and egress LCN 4011 double lever
arm closer at storerooms and lunchrooms
SMOKE SEAL(for use with hollow metal doors)
Pemko PK 33BL black
AUTO FLUSH BOLTS
Glynn Johnson FB41 US26D
DOUBLE DOOR COORDINATOR W/BRACKETS
Glynn Johnson COR2 US26D
DUST PROOF STRIKE
Glynn Johnson DP2 US26D
MANUAL FLUSH BOLT
Glynn US26D
MAGNETIC HOLD OPEN
Dorma EM 500 Series
ROLLER LATCH
Rixson Bullet Catch
(e) ELECTRICAL/COMMUNICATION
COVERPLATES
Hubbell P Series - white
SWITCHES
Hubbell 1220 Series - white
ELECTRICAL RECEPTICAL
Hubbell 5362 - white
DEDICATED OUTLET
Hubell IG 5362 - gray
DEDICATED ISOLATED GROUND OUTLETS
Hubbell IG 5362 - orange
DIMMERS
Lutron Nova Series - white plastic cover plates
GROUND FAULT INTERRUPT
Hubbel GF 5362 - white
PANELBOARDS
Cutler-Hammer Pow-r-line series 1A, 2A, 3A, 4B
TRANSFORMERS
7
Cutler-Hammer Type K.T. non linear K-13
SAFETY SWITCH
Cutler-Hammer Heavy Duty K Series
TRANSIENT VOLTAGE SURGE SUPRESSION
Cutler-Hammer Clipper Power System line
(f) CEILINGS
GRID
Armstrong 15/16" Prelude Exposed Tee Grid, white (in 24 pattern)
CEILING TILE
Armstrong 24 Second Look II, Cortega #2767, white
(g) LIGHTING
2 X 4 FLOURESCENT
Lithonia 2PM3N-G-A-332-18-LD 277-GEB, Advance or GE electronic ballasts
EXIT SIGNS
Prescolite EDGELIT-LED-120/277-GREEN
2 X 2 FLOURESCENT
Luthonia 2PM3N-G-A-U316-9-LD-277-GEB, Advance or GE electronic ballasts
DOWN LIGHTS - FLOURESCENT
Halo H7696-TRM-6-P, 277 VOLT
DOWN LIGHTS - INCANDESCENT
Halo H7620T-3600C-TRM-6-P, 277 VOLT
WALLWASHERS - INCANDESCENT
Halo H803 MP-277-347-810WW-226W DTT TRM-6-P
ADJUSTABLE WALL WASHERS - INCANDESCENT
Halo H7643-TRM-6-P, 277 VOLT
EXIT SIGNS
Hubbell X3DL-C-1-RC
EMERGENCY LIGHTING ON 2 X 4 AND 2 X 2 FIXTURES
Add EL suffix to Lithonia 2X fixtures
UNDER CABINET LIGHTING
Alkco Super Inch Series 300, switch onn/off
8
(h) SPRINKLERS
HEAD
Globe "HC" Concealed - white cap.
TEMPERATURE
155 degree
(i) FIRE EXTINGUISHERS
CABINET
Larsens Architectural Series, Vertical Duo, 15/16" Flat Trim, fully
recessed, painted to match adjacent wall. Provide rated cabinet at rated
walls.
EXTINGUISHER
MPS: 5 lb. nominal capacity; UL Rating: 2A-10 B:C
(j) PLUMBING
BAR SINK
Just SBL-1613-A-GR, 18 gauge type 304, 18-8 stainless steel/single bowl
sink.
SINGLE COMPARTMENT SINK
Just SL-ADA-2122-A-GR, ADA compliant 18 gauge type 304, 18-8 stainless
steel, right/left discharge
DOUBLE COMPARTMENT SINK
Just DL-ADA-2133-A-GR, ADA compliant 18 gauge type 304, 18-8
stainless-steel, right/left discharge
GARBAGE DISPOSAL
ISE Badger 5, -1/2 HP
HOT WATER HEATER
A.O. Smith/ELSF-6/120 volt, 6 Gallon for use without dishwasher A.O.
Smith/ELSF-20/120 volt, 20 Gallon for use with dishwasher
DISHWASHER
GE Profile Performance Series
COMPARTMENT SINK FAUCET
Delta Model 100
BAR SINK FAUCET
Delta Model 2172-SHP
9
(k) HVAC
DIFFUSERS
Titus TBD 1-10 60x4 slot
RETURN AIR & TRANSFER GRILLES
Titus PAR Perforated face, 24" x 24', white
THERMOSTATS
Micronet 2000 Sensor MN-S - white
TRANSFER FAN
Greenheck on-line ceiling fan, variable speed control
FPTU BOXES
Nailor Industries with Andover controls including wall sensors
(l) SMOKE DETECTORS
DETECTOR
Simplex 4098-9733 Heat/4098 - 9714 Photoelectric
HORN/STROBE UNITS
Simplex 4903 series (white) 120 candela
STROBES
Simplex 4904 series (white) 120 candela
(m) FINISHES
CARPET
Cambridge, style Tinsley 30, Turnberry, Crown Jewel, or St. Andrew
Designweave, style Alumni, Monaco, Montara, or Orleans Patcraft, Style
Client 30, Scholastic, Socrates, or Velocity. All carpet to be direct glue
application.
BASE
Roppe 2 1/2" cove
VCT
Mannington Essentials Vinyl Tile
PLASTIC LAMINATE
Wilson Art
PAINT
Benjamin Moore Paints
10
STONE FLOORING
12"x12" Impala Black, polished, 1/16" grout joint, sanded to match stone,
thin set application. All stone flooring to receive 2-1/2" high stone
base, filed cut from 12"x12" material with Aqua Mix penetrating sealer on
exposed edges.
(n) WINDOW TREATMENT
INTERIOR
Levelor Rivera Blinds, horizontal, color: 34 Brushed Aluminum
(o) SPECIFIED CONTRACTORS AND VENDORS FOR 150 COLLEGE ROAD WEST
ELECTRICAL
Armour & Sons
HEATING, VENTILATION & AIR CONDITIONING
DeSesa Engineering
FIRE ALARM FINAL CONNECTIONS/PROGRAMMING
Simplex
FIRE PROTECTION(SPRINKLER)
S.D. Communale
KEYWAYS
Caola Company, Inc.
2.5. CONSTRUCTION REPRESENTATIVES. Landlord hereby appoints and Tenant hereby
approves the following person as Landlord's representative ("Landlord's
Representative") to act for Landlord in all matters covered by this Work Letter.
Tenant hereby appoints and Landlord hereby approves the following person as
Tenant's representative ("Tenant's Representative") to act for Tenant in all
matters covered by this Work Letter.
Landlord Representative Tenant Representative
- ----------------------- ---------------------
Patrinely Group, LLC Aztec Corporation
100 College Road West Woodbridge Place
Princeton, N.J. 08540 517 Route 1 South
Iselin, NJ 08830
Dean R. Johnson Charles Logan
(609) 514-1799 (732) 636-8989
Fax: (609) 514-1791 Fax: (732) 636-7755
11
All inquiries, requests, instructions, authorizations and other
communications with respect to the matters covered by this Work Letter shall be
made to Landlord's Representative or Tenant's Representative as the case may be.
Authorization made by Tenant's Representative shall be binding and Tenant shall
be responsible for all cost authorized by Tenant's Representative.
Authorizations made by Landlord's Representation shall be binding. Either party
may change its representative under this Work Letter at any time by written
notice to the other party, but any such change shall be effective only upon
receipt by the other party.
3.
CONSTRUCTION PLANS FOR LEASED PREMISES
3.1. CONSTRUCTION PLANS. All plans and drawings required by this Section 3
shall be prepared in accordance with the schedule provided in Section 8 below.
3.2. PREPARATION OF SPACE PLAN. Tenant's architect, The Aztec Corporation,
("Tenant's Architect"), in consultation with Tenant and Landlord's engineer(s)
and consultants, shall prepare detailed space plans for the Premises sufficient
to convey the architectural design of the Premises ("Space Plan"). The Space
Plan shall include the location and dimension of Tenant's computer room.
The Space Plan shall be approved and signed by Tenant and forwarded to
Landlord for reasonable approval. If Landlord shall disapprove of any portion of
the Space Plan, Landlord shall advise Tenant in writing of such disapproval and
the reasons thereof. Tenant shall then submit to Landlord for Landlord's
reasonable approval, a redesign of the Space Plan, incorporating those revisions
required by Landlord. Except as set forth below, the Space Plan and any
revisions to the Space Plan shall be paid by Tenant out of the Allowance.
3.3. PREPARATION OF WORKING DRAWINGS. Based on the approved Space Plan, Tenant
shall cause the Tenant's Architect, in consultation with Landlord's engineer(s)
and consultant(s) to prepare complete architectural, electrical, mechanical,
plumbing, life safety and structural drawings and specifications (including all
finishes) and other Tenant's Work desired by Tenant, including any internal or
external communications or special utility facilities which will require conduit
or other improvements within common areas (collectively, "Working Drawings").
The Working Drawings shall be approved in the same manner as provided in Section
3.2 above for approval of the Space Plan. The costs and expenses associated with
the Working Drawings shall be paid by Tenant out of the Allowance.
12
3.4. REQUIREMENTS OF TENANT'S WORKING DRAWINGS. Tenant's Working Drawings
shall:
(a) be compatible with the Building Shell, and with the design,
construction and equipment of the Building.
(b) include floor plans (not less than 1/8 inch scale) indicating:
(i) Quantity and location and type of all partitions.
(ii) Quantity and location and types of all doors, indicating hardware
and providing keying schedule.
(iii) Quantity and location and type of glass partitions, windows and
doors, indicating framing, if not Building Standard.
(iv) Critical dimensions necessary for construction.
(v) Quantity and location of all Building Standard electrical items -
outlets, switches, telephone outlets and lighting.
(vi) Quantity and location of all non-standard electrical items,
including lighting and floor corings.
(vii) Quantity and location and type of equipment that will require
special electrical requirements, with manufacturers specifications
for use and operation.
(viii) Quantity, location, weight per square foot and description of any
exceptionally heavy equipment or filing system exceeding 50 psf
(spread) live load.
(ix) Requirements for special air conditioning or ventilation-exhaust
fans or equipment loads.
(x) Type and color of floor covering.
(xi) Quantity, location, type and color of wall covering.
(xii) Quantity, location, type of any roof top requirements (antennas,
satellite dish).
(xiii) Quantity and location and type of plumbing.
(xiv) Quantity and location and type of appliances, kitchen equipment and
millwork.
(c) include details (not less than 1/4 inch scale) showing:
13
(i) All millwork with verified dimensions and dimensions of all
equipment to be built-in.
(ii) Corridor entrance.
(iii) Bracing or support of special walls, glass partitions or other
features if desired. If not included with the Working Drawings,
Landlord's structural engineer will design all support or bracing
required at Tenant's expense. (Any associated fees/costs shall be in
accordance with market.)
(d) comply with all applicable laws and ordinances, and the rules and
regulations of all governmental authorities having jurisdiction,
including the ADA (as hereinafter defined);
(e) comply with all applicable insurance regulations for a fire
resistant Class A building; and
(f) include locations of all improvements including complete dimensions.
Contractor in cooperation with the Architect shall be responsible for
filing, monitoring and obtaining the required permits. Contractors shall not be
required to commence construction until the building permits have been issued.
3.5. CHANGES TO THE WORKING DRAWINGS. With respect to any changes caused by
Tenant after Landlord approval of the Working Drawings, Tenant shall be
responsible for all costs relating thereto, which shall include, without
limitation, all architectural and engineering re-design fees and expenses,
contractor's fees, cost of materials no longer usable (except for any credit
received by Landlord), costs of new labor and materials, costs resulting from
any delays or schedule acceleration costs to avoid delays incurred by Landlord
as a result of such changes, an ACR of two and one-half percent (2.5%) of all
such costs. In the event that Landlord must perform Tenant's Changes (as
hereinafter defined) or any other changes required by any governmental entity or
authority having jurisdiction thereof, pursuant to the provisions of the Lease,
Landlord shall deliver to Tenant (a) written notice of the estimated cost of
such additional work, as reasonably determined by Landlord, its architects,
engineers and contractors, and (b) a modified or revised construction schedule
setting forth the revised completion dates and deadlines therefore, if any, as
set forth in Section 8.
3.6. CRITICAL DELIVERY ITEMS. Tenant shall at its expense prepare and deliver
to Landlord no later than the date for the delivery of
14
the initial Space Plans detailed information with respect to the following items
("Critical Delivery Items"), together with Tenant's authorization to Landlord to
make all necessary purchases, delivery arrangements, etc., relative to such
items:
(a) Special Electrical/Data Processing Requirements - Raised or Cellular
Floors, Elevatoring, Ramping and Flooring-to-Ceiling Interior Glass.
(b) Special HVAC Requirements-FPTU Boxes, Supplemental Air Conditioning Units,
Special Ductwork, Ammonia or Other Noxious Substances Exhaust Ductwork.
(c) Special Telephone/Communication Requirements.
(d) Special Plumbing Requirements--Executive Restrooms, Sinks, Kitchens.
(e) Special Security Requirements--Floor Entry.
(f) Special Life Safety Requirements - Halon/Pre Action Fire Suppression.
(g) Any special Base Building structure modifications, stairwell and shaft
opening, additional floor loading requirements, etc.
(h) Any other item similar to the foregoing or otherwise requiring special
attention or preparation or involving material with long lead-time for
manufacturing and/or delivery including, but not limited to, raised
flooring, uninterrupted power system, variable air volume-units,
switchgear and supplemental air conditioning unit, if applicable.
Nothing herein shall require Landlord to consent to such Critical Delivery
Items; however, Landlord's consent shall not be unreasonably withheld.
4.
ALLOWANCE FOR WORK
4.1. ALLOWANCE. Tenant shall receive from Landlord an allowance of $22.50 per
square foot of Rentable Area of the Premises ("Allowance") to be used as a
contribution towards the cost of Tenant's Work as defined in Article 6. In the
event the Cost of the Work is less than the Allowance after completion of
Tenant's Work, Landlord shall pay to Tenant the amount of such difference up to
a maximum of $3.00 per square foot of Rentable Area of the Premises. Except as
specifically provided above, Tenant shall not be entitled to payment or rent
reduction for any part of the Allowance not used by Tenant. On or before Tenant
delivers notice of final approval of
15
the Cost of Work, Tenant shall deposit in an escrow account with Hellring
Lindeman Goldstein & Siegal LLP ("Escrow Agent") an amount equal to the cost of
any Tenant Work above the Allowance ("Escrowed Funds"). Such Escrowed Funds
shall a) accrue interest at the rate of 12% per annual, which interest shall be
payable by Tenant to Landlord when Landlord receives the Escrowed Funds and b)
be released to Landlord on the Commencement Date or to Tenant in the event that
Lease is terminated pursuant to Section 1.4(d) of the Lease. Tenant shall
instruct Escrow Agent how to invest the Escrowed Funds.
All items of Tenant's Work, Premises Alterations and Leasehold
Improvements whether or not the cost is covered by the Allowance (other than
Tenant's trade fixtures) shall immediately become the property of Landlord and
shall be surrendered to Landlord with the Premises as part thereof at the end of
the Lease Term; provided, however, that if, at the time the Working Drawings are
approved or Landlord's consent is obtained to any Premises Alterations, Landlord
requests Tenant to remove any such items installed by or on behalf of Tenant,
Tenant shall cause the same to be removed at Tenant's expense on or before the
expiration of the Lease Term, or shall reimburse Landlord for the cost of such
removal, as elected by Landlord.
Notwithstanding anything to the contrary hereinabove set forth, Tenant
shall have the right to remove certain Tenant fixtures at the expiration of the
Lease at Tenant's sole cost and expense provided Tenant restores and repairs the
Premises to a condition consistent with the rest of the Premises at the
Commencement Date, reasonable wear and tear excepted, and as if the removed
items had not been installed and provided further that Tenant has identified the
Tenant fixtures to be removed in writing to Landlord at the time Tenant delivers
signed and approved Working Drawings to Landlord.
4.2. BIDS; COST OF THE WORK ESTIMATE AND STATEMENT.
(a) Prior to the commencement of any of Tenant's Work, Landlord will use its
best efforts to cause Contractor to bid each material subcontracted trade
category to at least three (3) subcontractors. Such bidders shall include up to
one (1) subcontractor recommended by Tenant, which subcontractor shall be
subject to Landlord's approval. The bids will reflect unit pricing where
applicable. Contractor shall be required to accept the lowest bid from each
subcontracted trade category provided (i) the subcontractor at issue is
qualified and has a good business reputation, as determined by Landlord in its
sole discretion, and (ii) Landlord determines, in its reasonable discretion,
that using the such subcontractor will not cause Landlord to miss the completion
and
16
performance deadlines set forth in Section 8 of this Work Letter. The
subcontractors selected to bid shall each be prepared, if selected, to employ
craft workers who are members of unions that are affiliated with the AFL-CIO
Building and Construction Trade Department. All contractor bids will be on an
open book basis and subject to review by the Tenant. In the event there are any
changes to the Working Drawings approved by Landlord and Tenant occurring after
Contractor obtains such bids, Contractor shall not be required to re-bid.
(b) Prior to the commencement of any Tenant's Work, Landlord shall submit to
Tenant a detailed written estimate of the Cost of the Work (as hereinafter
defined), which estimate shall identify all long lead time items for all
Tenant's Work required by the Working Drawings. Thereafter, Tenant shall either
approve the estimate or disapprove specific items and submit to Landlord
revisions to the Working Drawings which reflect the deletion and/or substitution
of such disapproved items. Submission and approval of the Cost of the Work
estimate shall proceed in accordance with the schedule provided in Section 8
below. Upon Tenant's approval of said estimate, such approved estimate will be
hereinafter known as the "Cost of the Work Statement". Upon Tenant's written
approval of any cost above the Allowance, if any, Landlord shall have the right
to purchase special installations requiring extended material delivery lead time
as set forth on the Working Drawings and to commence the construction of the
items included in said Cost of the Work Statement, pursuant to Section 5.
Landlord hereby agrees that the Cost of Work Statement represents Landlord's
good-faith estimate, of the Cost of the Work, except for any additional costs as
the result of Tenant's changes, code related changes required by any
governmental authority or Tenant-caused punch-list items.
(c) Landlord shall provide Tenant with a monthly statement of costs charged to
the Allowance and Tenant shall have the right after completion of Tenant's Work
to perform an audit of the expenditures charged to the Allowance.
4.3. NO OBLIGATION OF LANDLORD. Until Tenant approves the estimate in writing
and escrows the funds for any above Allowance costs, Landlord shall be under no
obligation to perform, or cause Contractor to perform, the installation of the
items of Tenant's Work or order any of the Critical Delivery Items.
5.
CONSTRUCTION OF TENANT IMPROVEMENT WORK
Following Tenant's written approval of the Working Drawings and the Cost
of the Work Statement, and its escrow of any above Allowance costs, Landlord
shall cause its construction contractor,
17
("Contractor"), to commence and diligently proceed with the construction of
Tenant's Work, subject to delays beyond the reasonable control of Landlord or
Contractor. Promptly upon the commencement of Tenant's Work, Landlord will
furnish Tenant with a construction schedule setting forth the projected
completion dates therefor and showing the deadlines for any actions required to
be taken by Tenant during such construction, and Landlord may from time to time
during the prosecution of Tenant's Work modify or amend such schedule due to
unforeseeable delays encountered by Landlord. Landlord shall make a reasonable
effort to meet such schedule as the same may be modified or amended. Tenant may
make changes ("Tenant's Changes") in Tenant's Work at any time prior to the date
set forth in Section 8(b)(viii) hereof for the date of delivery of the Working
Drawings, unless Landlord makes a material change in the Working Drawings in
which event Tenant shall have five days to respond.
6.
COST OF THE WORK
The "Cost of the Work" means: (i) governmental agency plan check, permit
and other fees (including any charges required by any governmental entity or
authority having jurisdiction thereof); (ii) sales and use taxes; (iii)
Contractor's insurance costs associated with the construction of Tenant's Work;
(iv) testing and inspecting costs; (v) the actual costs and charges for material
and labor, contractor's profit of five (5%) percent and contractor's general
overhead; (vi) actual costs incurred by Landlord in having the Tenant's Work
done, such as copying or delivery charges; (vii) all other incidental costs to
be expended by Landlord in the construction of Tenant's Work; and (viii)
Landlord's ACR in an amount equal to two and one-half (2.5%) percent of the
costs described in sections (i)-(vii).
7.
TENANT'S MOVE-IN
Tenant shall be responsible for protection of the elevator cab and casing
during moving. Tenant shall schedule and pay for any security and staffing of
the passenger/service elevator. Tenant or Tenant's movers shall deliver to
Landlord in advance, written evidence of proper and sufficient insurance (in
such form and with such coverages as Landlord may require) covering the
Building, in the event of any damage incurred during Tenant's moving into the
Premises, and such insurance shall name Landlord as an additional insured
thereunder.
18
8.
SCHEDULE
(a) Landlord Representative and Tenant Representative shall meet
bi-weekly (face to face or via telephone conference) until the contractor
achieves substantial completion for Tenant to receive reports on the status of
construction.
(b) Landlord has furnished Tenant with a final base plan Tenant's
schedule from initial Space Plan to move-in shall proceed as indicated below and
each action shall be completed on or before the date herein specified:
Action Response/Timeframe Due Date
(i) Tenant delivers to Landlord the design December 15, 2000
items that affect Landlord's Work
(ii) Tenant delivers to Landlord the December 15, 2000
preliminary Space Plan
(iii) Landlord delivers to Tenant written notice 4 business days from receipt December 21, 2000
approving or disapproving the initial of Space Plan
Space Plan
(iv) Tenant delivers to Landlord, if necessary, 5 business days from delivery December 28, 2000
redesign of Space Plan of Landlord's notice (if
applicable)
(v) Landlord delivers to Tenant written notice 3 business days from receipt January 2, 2001
of final approval of Space Plan of redesigned Space Plan (if
applicable)
(vi) Landlord delivers to Tenant a preliminary 10 business days from receipt January 16, 2001
estimate of the Cost of Work of final Space Plan
(vii) Architect delivers to Tenant and Landlord 22 business days from February 1, 2001
the Working Drawings Tenant's delivery of final
approved Space Plan
(viii) Contractor submits to the proper entities Simultaneously with delivery February 1, 2001
the Working Drawings for permit of Working Drawings to Tenant
(ix) Tenant delivers signed and approved 1 business day from delivery February 2, 2001
Working Drawings to Landlord of Working Drawings
{x) Landlord delivers to Tenant written notice 4 business days from receipt February 8, 2001
approving or disapproving the Working of Working Drawings
Drawings
19
(xi) Tenant delivers to Landlord, if necessary, 4 business days from delivery February 14, 2001
redesigned Working Drawings of Landlord's notice (if
applicable)
(xii) Landlord delivers to Tenant written notice 3 business days from receipt February 19, 2001
of final approval of Working Drawings of redesigned Working
Drawings (if applicable)
(xiii) Landlord delivers to Tenant the Cost of 12 business days from March 7, 2001
Work estimate including any above Tenant's delivery of signed
allowance costs Working Drawings
(xiv) Tenant delivers to Landlord written notice 5 business days from Tenant's March 14, 2001
of final approval of Cost of the Work receipt of Cost of the Work
estimate estimate
(xv) Landlord provides Contractor notice to 1 business day from receipt March 15, 2001
proceed to commence construction subject of approval of Cost of the
to issuance of permit Work estimate, subject to the
receipt of permit
(xvi) Contractor commences Tenant's Work No later than
March 15, 2001
plus number of
days of Tenant
Delay (as define
below)
(xvii) Contractor achieves substantial completion 55 business days from May 31, 2001
commencement of construction
(xviii) Landlord's architect certifies substantial 1, plus the number of days of June 1, 2001
completion and certificate of occupancy Tenant Delay
obtained
Notwithstanding the above Schedule, Tenant acknowledges that Landlord may
install within the Premises certain Tenant Work under its base building permit.
Such Tenant Work may commence prior to Tenant's final approval of the Cost of
Work estimate and prior to Landlord's notice to Contractor to proceed with
Tenant's Work.
9.
CERTAIN PROVISIONS RELATING TO CONSTRUCTION
9.1. COMPLETION DATE. Except as provided in the last paragraph of Article
VIII hereof, upon delivery to Landlord by Tenant of written approval of the Cost
of the Work and escrow of any above Allowance costs, Landlord will then cause
Contractor to partition and prepare the Premises in accordance with the Working
Drawings, commence construction of Tenant's Work, and thereafter pursue such
20
construction in such manner as is reasonably necessary to substantially complete
construction of the Premises on or before the Completion Date. The term
"Completion Date" means the date Landlord's architect certifies substantial
completion, as set forth in the schedule in Article VIII, above, or the date
substantial completion of Tenant's Work would have been completed (and thus
certificate of occupancy obtained) but which date is delayed by the number of
days of Tenant Delay. The term "Tenant Delay" means any delay in the completion
of Tenant's Work caused by (a) Tenant's or Tenant's Architect failure to act or
provide the responses described in this Work Letter within the time specified;
(b) any changes requested by Tenant to any aspect of the Working Drawings that
was reflected in the Space Plan; (c) changes requested by Tenant to any aspect
of the Space Plan or the Working Drawings after Landlord's approval thereof; (d)
the non-availability or excess procurement or delivery time for materials or
equipment specified by Tenant's Architect; (e) delay in making Tenant's escrow
of above Allowance costs, (f) any delay in Landlord's completion of the Premises
through any negligence, gross negligence, or willful misconduct of Tenant, its
employees, agents, contractors or representatives, or (g) any other delay caused
by Tenant, its employees, agents, contractors or representatives.
9.2. CONSTRUCTION OF TENANT'S WORK. Construction of Tenant's Work will be
completed in a good and workmanlike manner, and in accordance with the Working
Drawings (as revised, if applicable) and good industry practice.
9.3. ENTRY UPON PREMISES. Tenant shall be entitled to enter the Premises
from time to time during the course of construction as may be reasonably
necessary for Tenant's space planning or inspection purposes, and thirty (30)
days prior to the anticipated Commencement Date for the installation by Tenant
of its fixtures or equipment, including its computer systems, telephone
equipment and cabling provided (i) Tenant notifies Landlord in advance of such
proposed entry and coordinates such entry so as to be accompanied by Landlord or
Landlord's Representative, (ii) Tenant does not hinder or interfere with
construction of the Premises or the activities of Contractor, and (iii) Tenant
takes such reasonable protective precautions or measures for Landlord and/or
Tenant as Landlord may reasonably request, given the stage of construction of
the Building and/or the Premises at the time of such entry, including (if
appropriate) execution of releases from liability for Landlord, Contractor or
any other contractor in the Project from injuries sustained by Tenant in the
Building during such entry. All such work will comply with all governmental
rules and regulations and will be coordinated with Landlord and Landlord's
Contractor. Tenant will not be charged for the use of, if available, elevators,
bathrooms or electrical consumption during this period. Under no
21
circumstances will any delay in the installation of Tenant's telecommunications
and computer equipment and related wiring result in a delay in the Lease
Commencement Date.
9.4. PUNCH LIST ITEMS. After substantial completion of the construction of
the Premises and prior to Tenant's installation of its furnishings in the
Premises, Tenant may inspect (with Landlord) the Premises and furnish to
Landlord "punch list" of errors (if any) and omissions (if any) in the
construction of the Premises known to Tenant to exist. Any disputes between
Landlord and Tenant concerning any final punch list item not resolved by
Landlord and Tenant shall be decided by Landlord's architect and Tenant's
Architect, and any such decision shall be binding on Landlord and Tenant. Upon
receipt of the punch list, Landlord shall promptly correct (or cause the
contractor to correct) such errors and omissions. A failure by Tenant to include
on the punch-list any error or omission in the construction of the Premises
reasonably apparent upon reasonable inspection shall constitute a waiver and
release by Tenant of any claim or cause of action for damages from Landlord
resulting from such error or omission. Except for punch list items which
materially interfere with Tenant's ability to operate its business on and from
the Premises, the existence of the punch list (and completion of the items
listed thereon) shall not delay commencement of the term of this Lease and shall
not affect Tenant's obligation to occupy the Premises and to pay Rent in
accordance with the provisions of the Lease.
9.5. CHANGES TO BUILDING. Prior to the Commencement Date, Landlord may
alter the Premises to the extent found necessary by Landlord upon reasonable
prior notice not less than five (5) days to accommodate changes in construction
design or facilities including major alterations to the Premises, but the
Premises, as altered, shall be in all material aspects comparable to the
Premises including but not limited to Tenant's computer room, as defined herein.
Any such alterations by Landlord shall be without liability to Tenant and shall
not be considered Tenant Delay for purposes of this Lease unless caused by
changes in Tenant Work made by Tenant.
9.6. ADA. As of commencement of construction, Landlord shall use
commercially reasonable efforts to have caused the Project (exclusive of the
Premises except to the extent Tenant has as part of their plan submission
advised Landlord of any special needs of Tenant and Tenant's Architect has
correctly designed the Working Drawings to accommodate such needs) to be
designed in accordance with all applicable laws pertaining to the Land and
Project including the applicable building codes and Title III of the Americans
with Disabilities Act ("ADA") to the extent applicable to the Project (exclusive
of the Premises except to the extent Tenant
22
has as part of their plan submission advised Landlord of any special needs of
Tenant and Tenant's Architect has correctly designed the Working Drawings to
accommodate such needs). Tenant shall be responsible for future compliance with
all ADA requirements and regulations within the Premises.
10.
WARRANTIES
10.1. NO WARRANTIES. TENANT ACKNOWLEDGES THAT LANDLORD HAS MADE AND WILL
MAKE NO WARRANTIES TO TENANT AS TO THE QUALITY OF CONSTRUCTION OF TENANT'S WORK
OR OF THE CONDITION OF THE PREMISES UPON COMPLETION THEREOF, EITHER EXPRESS OR
IMPLIED, AND THAT LANDLORD AND TENANT DISCLAIM ANY IMPLIED WARRANTY THAT THE
PREMISES ARE OR WILL BE SUITABLE FOR TENANT'S INTENDED USE THEREOF.
Notwithstanding the previous sentence, Landlord agrees to have its agreement
with the contractor performing Tenant's Work provide that any warranties set
forth therein shall be assigned to Tenant and, if not enforced by Landlord, may
be enforced by Tenant, in accordance with the terms of such contract.
10.2. OCCUPANCY. Occupancy of the Premises by Tenant in whole or in part
shall constitute a waiver of all claims by Tenant except those arising from (a)
latent defects (which shall be deemed waived by Tenant upon the expiration of
the one (1) year period described in Section 10.3 below to the extent not
contested within such one (1) year period), (b) failure of Tenant's Work to
comply with the Working Drawings, which failure could not have been discovered
with reasonably diligent inspection and inquiry upon the date Tenant confirms
the substantial completion of the Premises, and (c) Contractor's failure to
complete in due course the punch list items as set forth above.
10.3. DEFECTS. Landlord agrees that if any defect in Tenant's Work is
discovered by Tenant and written notice thereof is received by Landlord not less
than ten (10) business days prior to the date which is one (1) year after the
Commencement Date, Landlord will diligently pursue and seek to enforce any
warranties and pursue any other liability of the Contractor and any
subcontractor or materials supplier that provided defective labor or material in
connection with Tenant's Work provided, however, that in no event will Landlord
be obligated to institute any litigation or other legal process in connection
therewith. 1.1.
11.
DEFAULT
Any failure of Tenant to comply with the requirements of this Work Letter
shall constitute a default by Tenant under the Lease
23
and Landlord shall have and may pursue all remedies available to Landlord under
the Lease, at law or in equity.
IN WITNESS WHEREOF, the parties have executed this Work Letter as of the
Date of execution of the Lease.
LANDLORD
150 College Road LLC
a Delaware limited liability company
By: /s/ C. Dean Patrinely
--------------------------------
C. Dean Patrinely, President
Date: 12-21-00
TENANT
PHYSIOME SCIENCES, INC.
a Delaware corporation
By: /s/ J. Maida
--------------------------------
Name: J. Maida
Title: CFO
Date: 12-18-00
24
EXHIBIT E
COMMENCEMENT DATE AGREEMENT
This Commencement Date Agreement (this "Agreement") is made and entered
into this 28 day of June, 2001, by and between 150 COLLEGE ROAD, LLC
("Landlord") and PHYSIOME SCIENCES, INC. ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
(the "Lease") dated _______________, 2000, with respect to certain premises
located in the building known as 150 College Road West in Village South at
Princeton Forrestal Center, as premises are more particularly described in the
Lease.
WHEREAS, this Agreement is executed by Landlord and Tenant to confirm the
Commencement Date and the Expiration Date, as those terms are defined in the
Lease;
NOW, THEREFORE, for and in consideration of the premises the mutual
covenants expressed in the Lease, it is hereby agreed by Landlord and Tenant as
follows:
1. The Commencement Date for the Lease term was ____________and the Lease
term will expire on ___________, _____ (the "Expiration Date").
2. The Rentable Area for the Premises determined in accordance with the
Space Plan is __________rentable square feet.
3. The schedule for the Annual Base Rental and Monthly Installments is as
set forth in Section 2.1.
4. The Tenant's Proportionate Share based upon the Space Plan is ______%.
5. Except as specifically set forth above, this Agreement shall not be
deemed or construed to alter or amend the Lease in any manner.
6. Subject to the provisions of the Work Letter attached as Exhibit D to
the Lease, the Tenant accepts the Premises, including Tenant's Work completed by
Landlord pursuant to the Work Letter.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be
executed as of the day and year first written.
LANDLORD
150 College Road, LLC, a Delaware
limited liability company
By: __________________________
C. DEAN PATRINELY
Date: _________________________
PHYSIOME SCIENCES, INC.,a Delaware
corporation
By: _________________________
Name: _______________________
Title: ________________________
Date: ________________________
E-2
EXHIBIT F
AIR CONDITIONING AND HEATING SERVICES
Landlord will furnish Building standard air conditioning and heating
between 8:00 a.m. and 6:00 p.m. from Monday through Friday, except for holidays.
Upon request of Tenant made in accordance with the rules and regulations for the
Building, Landlord will furnish air conditioning and heating at other times
(that is, at times other than the times specified above), in which event Tenant
shall reimburse Landlord for the cost of furnishing such services.
The following dates shall constitute "Holidays" as said term is used
in this Lease:
(1) New Year's Day
(2) Memorial Day
(3) Independence Day
(4) Labor Day
(5) Thanksgiving Day
(6) Christmas
Tenant shall reimburse Landlord at a per hour per air handler unit
rate when air conditioning or heating is furnished at times other than those
stated above. The hourly rate shall in an amount equal to Landlord's actual
costs of operation, including but not limited to costs of utilities, if
applicable, labor, maintenance, equipment and depreciation, estimated initially
to be $20.00 per hour without on-site labor, or $60 per hour with on-site labor
present on an on-call/as necessary basis. Tenant must notify Landlord no later
than 12:00 noon on the day the after hours HVAC is required or no later than
noon the day before any holiday or no later than 12:00 noon on Friday if weekend
HVAC is required in order for this service to be provided.
EXHIBIT G
BUILDING RULES
1. Sidewalks, doorways, vestibules, halls, stairways, elevator lobbies,
and other similar areas shall not be used for the disposal of trash, be
obstructed by Tenants, or be used by Tenants for any purpose other than entering
or leaving the leased premises and for going from one part of the Building to
another. If special trash haulings are required, please contact the Management
Office.
2. No sweepings, rubbish, rags or other unsuitable materials shall be
disposed into plumbing fixtures or appliances. Damage resulting to any fixtures
from misuse by a Tenant shall the liability of said tenant.
3. Movement of furniture or office equipment in or out of the Building, or
the dispatch or receipt of any bulky material merchandise or materials which
requires the use of the elevators or the stairways or movement through the
Building entrances or lobby will be restricted to such hours as Landlord shall
reasonably designate. All such movement will be under the supervision of
Landlord and in the manner agreed to between the tenant and Landlord by
prearrangement. Such prearrangement, initiated by the Tenant, is subject to
Landlord's reasonable control as to the time, method, routing of the movement
and as to limitations for safety or other concerns which may prohibit any
article, equipment or other item(s) from being brought into the Building. The
Tenant is to assume all risks for damage to articles moved or injury to persons
engaged or not engaged in such movement and for any damage to Landlord's
equipment or property or injury to Landlord's personnel as a result of any act
in connection with fulfilling this service for the Tenant. Landlord shall not be
liable for any acts of any person(s) engaged in, or any damage or loss to any of
said property of person(s), resulting from any act in connection with such
service performed for the Tenant.
4. All routine deliveries to a tenant's leased premise during 8:00 a.m. to
5:00 p.m. weekdays shall be made primarily through the north wing elevator. At
such time as the north wing elevator is not available for such purpose, Tenant
shall also have the right to use the atrium elevator for the same purposes on a
secondary basis as needed. Except as set forth in this Section 4, the elevators
in the lobby are to be used only for movement of people, unless an exception is
approved by the Management Office which approval shall not be unreasonably
withheld. If Tenant uses the lobby elevator for this purpose, Landlord shall use
whatever
reasonable means necessary to protect the elevator at Tenant's expense which
shall be identified to Tenant in advance.
5. To insure orderly operation of the Building outside the hours set forth
in the preceding paragraph, no ice, mineral or other water or towels will be
delivered after hours to tenants' leased premises except as approved by Landlord
in writing, which approval shall not unreasonably be withheld.
6. Corridor doors, when not in use, shall be kept closed.
7. Tenant space that is visible from public areas must kept reasonably
neat and clean and is subject to Landlord's reasonable approval.
8. Tenants shall not tamper with or attempt to adjust temperature control
thermostats in the leased premises. Landlord shall adjust thermostats as
required to maintain the Building standard temperature. Landlord requests that
all window blinds remain down and tilted at a 45 degree angle toward the street
help maintain comfortable room temperatures and conserve energy.
9. All requests for overtime air conditioning or heating must be submitted
in writing to the Management Office by 2:00 p.m. on the day desired for weekday
requests, by 2:00 p.m. Friday for weekend requests, and by 2:00 p.m. on the
preceding business day for holiday requests.
10. The Building hours are from 8:00 a.m. until 6:00 p.m. Monday through
Friday, excluding Holidays. Access at all other times is provided by the
electronic card system.
11. Tenants will comply with all security procedures during business hours
and after hours and on weekends.
12. Tenant shall not have the right to install locks to and in the leased
premises without the Landlord's prior written approval.
13. Tenants will cooperate with Landlord's employees in keeping leased
areas neat and clean, unless the tenant is responsible for cleaning and
maintenance personnel. Landlord will in no way be held responsible by any
tenant, its agents, employees or invitees for any loss of property from the
lease premises or public areas or for any damage to any property within the
leased premises even if such loss or damage occurred when premises were locked
against entry.
-2-
14. Signs, advertisements, or notices visible from outside the Building
shall be subject to Landlord's prior written approval. Signs, advertisements or
notices visible in or from public corridors shall be subject to Landlord's prior
written approval.
15. Landlord will provide and maintain a directory board for all the
tenants in the main lobby of the Building, and no other directory will be
permitted.
16. Proposed plans for alterations within the Building must be approved in
writing by Landlord. This provision will apply to all work performed in the
Building including, but not limited to all installations affecting or affixed to
floors, walls, woodwork, trim, windows, ceilings, equipment or any other portion
of the Building.
17. Landlord reserves the right to prescribe the weight and positioning of
safes, files, filing systems and other heavy equipment and written approval,
which shall not be unreasonably withheld must be obtained from the Management
Office before work begins. All damage done to the Building by the movement of
property of the tenant, or done by the tenant's property while in the Building,
will be repaired at the Tenant's expense.
18. Should a tenant require telegraphic, telephonic, annunciator or other
communication service, Landlord will direct the electricians where and how wires
are to be introduced and placed to the demised premises and none shall be
introduced or placed to the demised premises except as Landlord shall direct.
Electric current shall not be used for supplemental power or heating without
Landlord's prior written permission.
19. Tenants are requested to lock all office doors leading to corridors
and to turn out all lights at the close of their working day.
20. Tenants, their agents, employees and invitees shall observe no smoking
in all public areas including elevators, restrooms, etc. and may smoke in areas
designated by Landlord outside of the Building.
21. No flammable or explosive fluids or materials shall be kept or used
within the Building except in areas approved by Landlord, and tenants shall
comply with all applicable building and fire codes relating thereto.
-3-
22. Tenants will not make or permit any improper noises within the
Building or otherwise interfere with other tenants or persons having business
within the Building.
23. No animals other than service animals as permitted pursuant to
applicable law including the Americans with Disabilities Act shall be brought
into or kept in, on or about the Building.
24. Landlord reserves the right to rescind any of the rules and
regulations and to make such other and further rules and regulations as, in its
reasonable judgment, shall, from time to time, be required for the safety,
protection, care and cleanliness of the Building, the operation thereof, the
preservation of good order therein and the protection and comfort of the tenants
and their agents, employees and invitees. Such rules and regulations, when made
and written notice thereof is given to a tenant, shall be binding upon it in
like manner as if originally herein prescribed.
25. The carrying of firearms of any kind in any leased premises, the
Building, any related parking garages, or the Project of which the foregoing are
a part, or any sidewalks, drives, or other common areas related to any of the
foregoing is prohibited except in the case of unconcealed firearms carried by
licensed security personnel hired or contracted for by tenants for security of
their premises as permitted by such tenants' leases or otherwise consented to by
Landlord in writing.
26. The Premises shall not be used for the storage of merchandise held for
sale to the general public, lodging, manufacturing of any kind or any business
or activity other than specifically provided for in Tenant's Lease. No cooking
shall be done or permitted on the Premises, except that the use by Tenant of
approved microwaves or equipment for brewing coffee, tea or other hot beverages
shall be permitted; provided that such use is in accordance with all applicable
federal, state and local laws, codes, ordinances and regulations.
27. No curtains, drapes, blinds, shutters, shades, screens or other
coverings, hangings or decorations shall be attached to, hung, or placed in, or
used in connection with any window of the Premises without the prior written
approval of Landlord. In the event such consent is granted, such items shall be
installed on the office side of Landlord's standard window coverings and shall
in no way be visible from the exterior of the Building.
-4-
28. In the event of any conflict between the provision of this EXHIBIT G
and the Lease, the provisions of the Lease shall prevail.
29. Tenants shall only park in the designated Parking Facilities for the
Building provided by Landlord, and shall not park in any restricted areas
including but not limited to fire lanes.
-5-
EXHIBIT H
JANITORIAL SPECIFICATIONS
Services specified nightly should be performed Monday through Friday (exclusive
of Holidays) unless otherwise stated. No janitorial services shall be provided
in Tenant's computer room or executive offices.
I. Office Areas
A. SERVICES PERFORMED NIGHTLY:
1. Empty and clean all waste receptacles and remove waste paper
and rubbish from the premises.
2. Empty and damp wipe all ash trays; screen all sand urns.
3. Vacuum carpet under furniture and along edges. All edges
should be either swept or vacuumed with the appropriate edge
cleaning tools. Vacuum all rugs and carpet, unobstructed by
furniture, in the offices, lobbies and corridors.
4. Hand dust or wipe clean with damp or treated cloth all office
furniture, telephones, files, fixtures, paneling, window
sills, chairs, occasional tables, and other horizontal
surfaces.
5. Damp wipe and polish all glass furniture tops. Remove finger
marks and smudges from doors, door frames, around light
switches, private entrance glass partitions, pictures, wall
decorations, all glass furniture tops.
6. Wash clean all water coolers, drinking fountains, etc.
7. Sweep all internal stairways and vacuum if carpeted.
8. Sweep and/or dust mop all uncarpeted floors. (This is to
include all stone, tile, wood floors within the public areas
or tenant lease spaces.)
9. Spot clean carpet.
10. Dress and spray-buff to a scuff-free gloss all tile floors
twice per week.
H-1
B. SERVICES PERFORMED IN THE FREQUENCY AS STATED:
1. Damp wipe all debris and liquids from waste receptacles
nightly.
C. SERVICES PERFORMED QUARTERLY:
1. Wash interior surface of all exterior windows.
2. Clean all interior metal window frames, mullions and other
unpainted interior metal surfaces of the perimeter walls of
the building.
3. Damp wipe all mini-blinds.
4. Strip and reseal all tile floors including public and service
corridors.
II. RESTROOMS
A. SERVICES PERFORMED NIGHTLY:
1. Wet mop and thoroughly rinse floor. Clean all edges to prevent
dirt build-up. Do not leave standing water on the floors.
2. Damp wipe and remove all finger marks, smudges and stains from
mirrors, bright work, enameled surfaces and fixtures.
3. Wash and disinfect all basins, urinals and bowls. Remove
stains and clean under-sides of rim on urinals and bowls.
4. Wash both sides of all toilet seats with soap water to
disinfect.
5. Damp wipe and remove all smudges, stains and finger marks from
all partitions, tile walls and outside surfaces of all
dispensers and receptacles. Damp wipe and remove all smudges,
stains and water spots from all lavatory tops and VWC or other
wall finish materials next to dispensers/receptacles.
6. Empty and sanitize all trash receptacles and sanitary
disposals.
7. Fill all toilet tissue, soap, towel and sanitary napkin
dispensers. Money from the sanitary napkin
H-2
machines is to be collected by Tenant and retained by Tenant.
8. Clean flushometers, piping, toilet seat hinges and other
metal. Do not leave oily film on any stainless steel restroom
equipment.
9. Pour at least one gallon of water down each restroom floor
drain and wipe clean each drain grille.
10. All private restroom facilities will be cleaned and stocked in
the same manner as noted above for public restroom facilities.
B. SERVICES PERFORMED WEEKLY:
1. Scrub all floors.
2. Polish all bright work.
C. SERVICES PERFORMED MONTHLY:
1. Wash and polish all walls, partitions, dispensers, receptacles
and enamel surfaces from ceiling to floor.
2. Vacuum all louvers and ceiling ventilating grilles. Dust light
fixtures and lenses.
III. PUBLIC AREAS
A. LOBBY FLOORING
1. Services performed Monday through Friday and Sunday:
a. Damp mop.
2. Services performed twice a week:
a. Scrub.
B. COMPOSITION FLOOR AND BASES
1. Services performed nightly:
a. Sweep.
b. Spray buff.
2. Services performed monthly:
H-3
a. Wax and buff.
3. Services performed quarterly:
a. Strip and reseal.
C. CARPETED AREA
1. Services performed nightly:
a. Vacuum.
b. Spot remove stains.
c. Sweep and vacuum all edging.
D. WALLS
1. Services performed monthly:
a. Dust all walls.
b. Spot wash.
E. CEILINGS
1. Services performed monthly:
a. Dust by vacuuming all air grilles/diffusers, in corridors and
elevator lobbies.
F. BRIGHT WORK
1. Services performed nightly:
a. Dust and polish.
G. LIGHTS/LIGHT FIXTURES
1. Services performed quarterly:
a. Dust.
b. Damp wipe and remove all finger marks and smudges.
H. PASSENGER/SERVICE ELEVATORS
1. Services performed nightly:
H-4
a. Dust all surfaces, clean and polish all metals as specified
per management.
b. If carpet, vacuum and clean.
c. If tile, sweep, wash, dress and buff.
d. Clean and polish all thresholds in cabs and on the floors.
e. Dust and damp wipe all elevator lobby fixtures, removing all
finger marks and smudges.
2. Services performed weekly:
a. Dust ceiling.
b. If tile, scrub and wax.
3. Services performed monthly:
a. Shampoo carpet.
4. Services performed quarterly:
a. If tile, strip and reseal.
I. ASH URNS
1. Services performed nightly:
a. Clean and polish.
b. Sift sand and refill as required.
2. Services performed monthly:
a. Empty and replace sand.
J. WATER COOLER/DRINKING FOUNTAINS
1. Services performed nightly:
a. Wash, disinfect and polish until dry.
K. STAIRWAYS AND LANDINGS
1. Services performed weekly:
a. Sweep risers.
H-5
b. If carpet, vacuum and spot clean.
C. Police all stairs and landings.
2. Services performed monthly:
a. Wet mop risers.
b. Dust and damp wipe all louvers, light fixtures and life safety
equipment.
3. Services performed quarterly:
a. Dust railing, adjacent areas and any ledges.
b. Dust walls and spot wash walls.
4. Services performed semi-annually:
a. If carpet, shampoo (to be done as a tenant extra as arranged
for with the tenant).
L. FIRE HOSE CABINETS
1. Services performed weekly:
a. Clean and dust.
M. DOORS
1. Services performed quarterly:
a. Dust wooden doors.
N. INTERIOR GLASS
1. Services performed nightly:
a. Clean glass entrance doors and adjacent glass panels.
b. All lobby level glass up to a height reachable from the ground
using extension brushes.
O. EXTERIOR GLASS
1. Services performed semi-annually:
a. Exterior window washing at least twice per year.
H-6
P. CONFERENCE ROOMS
1. Services performed nightly:
a. Vacuum
b. Empty all waste receptacles
2. Services performed weekly:
a. Polish furniture
b. Dust high surfaces
Q. KITCHENS
1. Services performed nightly:
a. Clean all walls and counters
b. Mop or vacuum floor
c. Maintain soap dispensers
H-7
EXHIBIT I
[SCHEDULE OF PARTICIPATING PLANS]
25231-3-2 AFL-CIO STAFF RET FD.
34173-0-0 ANNUITY PLAN OF THE ELECTRICAL INDUSTRY
34207-0-0 ATLANTA PLUMBERS AND STEAM FITTERS
25231-0-8 BAKERY & CONF UNION & IND
34104-0-4 BRICKLAYERS AND ALLIED CRAFTS
25231-1-6 BRICKLAYERS & TROWEL TRADES
25238-3-5 BRICKLAYERS LOCAL 19
34102-0-6 BRICKLAYERS LOCAL 21 PENSION FD
25233-1-4 BRIDGE & IRON WORKERS STAFF
33756-0-7 CWA/ITU NEGOTIATED PENSION PLAN
25238-0-1 CALPERS
33437-0-4 CARPENTERS LOCAL #496 PEN FD
34209-0-8 CARPENTERS LABOR MANAGEMENT
33323.0-1 CARPENTERS PEN FUND ILLINOIS
33649-0-8 CARPENTERS PEN TR FD OF ST. LOUIS
33346-0-4 CASCADE PENSION TRUST
33648-0-9 CEMENT MASONS LOCAL 886 & 404
34086-0-6 CENTRAL/NORTH FL CARPENTERS
25234-0-5 CENTRAL PEN FD OF IUOE
34105-0-3 CONNECTICUT PLUMBERS & PIPEFITTERS
25235-3-8 EIGHTH DIST IBEW
25239-1-8 IBEW 595 MONEY PURCHASE
33371-0-2 ELECTRICAL WORKERS PEN FD #103
33732-0-6 HAWAII LABORERS' PENSION FUND
33811-0-0 HOTEL & RESTAURANT EMP INTL UNION
34159-0-8 IBEW LOCAL UNION NO. 99 ANNUITY
34156-0-1 IBEW LOCAL UNION NO. 99 RETIREMENT
33331-0-1 IBEW LOCAL #380 PENNSYLVANIA
33955-0-6 IBEW #481 MONEY PURCHASE PEN PI
25238-2-7 IBEW 673 PENSION FUND
25238-1-9 IUPAT LOCAL & DIST. COUNCIL PEN FD
34189-0-2 ILLINOIS FEDERATION OF TEACHERS
25237-0-2 INDIANA ST. COUN CARPENT PEN
33629-0-2 INDUSTRICORP & CO FBO MINNEAPOLIS
25233-0-6 INT ASSOC OFF & EMP LOC DIST
34155-0-2 IRONWORKERS LOCAL NO 16 PENSION FD
33995-0-8 IUE AFL-CIO PENSION FUND
33006-0-5 JT IND BOARD - ELECTRICAL
33703-0-1 KANSAS CONSTRUCTION TRADES OPEN END
25232-3-1 LABORERS INT UN STAFF PEN PI
34103-0-5 LABORERS' PENSION FUND
33369-0-6 LOCAL #68 ENGINEERS AN FD
34074-0-0 LOCAL 68 IUOE PENSION FUND
34174-0-9 MARYLAND ELECTRICAL INDUSTRY PENSION FUND
34190-0-9 MILWAUKEE DRIVERS PENSION TRUST
25239-2-6 NATIONAL AUTOMATIC SPRINKLER
25233-3-0 NATIONAL ELECTRICAL ANNUITY PLAN
25237-3-6 NATIONAL ROOFERS
33016-0-3 NECA-IBEW 176 ILLINOIS
33022-0-5 NECA-IBEW PEN TRUST FUND
34075-0-9 NECA-IBEW 364 DEFINED CONTRIBUTION
34263-0-1 NEW JERSEY CARPENTERS ANNUITY FUND
34222-0-1 NEW JERSEY CARPENTERS PENSION FUND
34029-0-6 NYC DISTRICT COUNCIL OF CARPENTERS
34198-0-1 OFF. & EMP. LOCAL HEREIU
25235-0-4 OHIO LOCAL NO.1 OPER.PLAST & CEMENT
33493-0-5 OP. ENG. CONSTR. IND. & MISC. PEN. FD
33393-0-6 PACIFIC COAST ROOFERS PENSION PLAN
33357-0-0 PAINTERS AND ALLIED TRADES INTL UNION
33607-0-8 PAINTERS DISTRICT COUNCIL NO. 35
25234-1-3 PLUMBERS & PIPEFITTERS NATL
33345-0-5 PLUMBERS LOCAL #8 PEN PLAN
34027-0-8 PLUMBERS' PENSION FUND
33518-0-6 PUGET SOUND ELEC. WRKRS. PEN TRUST
34045-0-6 RET. FD. OF THE PLUMBING- HEATING
33623-0-8 RODMAN LOCAL 201 PENSION FUND
33994-0-9 ROOFERS' LOCAL 11 PENSION FUND
33004-0-7 ROOFERS LOCAL UNION 33
33954-0-7 SAN DIEGO HOTEL & REST EMP PEN
33501-0-5 SAN FRANCISCO CUL. BAR. SERV. EMP.
25233-2-2 SERVICE EMP INT UN MAST PEN
33005-0-6 SHEET METAL WRKRS 19 PHILA
34072-0-2 SHEET METAL WORKERS LOCAL 100
33628-0-3 SOUTHERN CA OPERATING ENGINEERS PEN
33929-0-9 SW OHIO DISTRICT COUNCIL OF CARPENTERS
34026-0-9 SOUTHERN NEVADA CULINARY
25235-2-0 STATIONERY OP ENG. LOCAL 39
34030-0-3 TEAMSTERS LOCAL 705 PENSION FUND
33616-0-7 TILE TERRAZZO & MARBLE INDUSTRY PEN
33731-0-7 TWIN CITY CARPENTERS & JOINERS
25232-0-7 UFCW PENSION PLAN FOR EMPLOYEES
34107-0-1 UNITED MINE WORKERS OF AMERICA
25237-2-8 UPPER PENINSULA PLUMBERS
34265-0-9 WEST MICHIGAN PLUMBERS
EXHIBIT J
NON-DISCLOSURE AGREEMENT
This Non-Disclosure Agreement is dated as of the ______day of
_________2000, by and between 150 COLLEGE ROAD, LLC, A DELAWARE LIMITED
LIABILITY COMPANY ("Landlord") ["Undersigned", if to be executed by a party
other than Landlord] with offices located at 100 College Road West, Second
Floor, Princeton, New Jersey 08540 and PHYSIOME SCIENCES, INC., A DELAWARE
CORPORATION ("Physiome") located at 150 College Road West, Third Floor,
Princeton, New Jersey 08540 ("Property").
In connection with a Lease executed by and between Landlord and Physiome,
Landlord has requested that Tenant disclose certain financial information
concerning Physiome, specifically and expressly subject to the terms and
conditions of said Lease and the within Non-Disclosure Agreement.
Therefore, the parties hereby mutually agree as follows:
1. As a condition to Landlord being furnished with financial information by
Physiome in accordance with the said Lease, Landlord agrees to treat any such
information concerning Physiome, its affiliates and subsidiaries that is
furnished by or on behalf of Physiome, whether furnished before or after the
date of this Non-Disclosure Agreement, together with analyses, compilations,
studies or other documents prepared by Landlord or any of Landlord's directors,
officers, employees, members, managers, agents or advisors, (including, without
limitation, attorneys, accountants, consultants, bankers, financial advisors and
any representatives of such advisors) (collectively, "Representatives") that
contain or otherwise reflect such information (hereinafter collectively referred
to as the "Financial Material"), as secret and confidential information and in
accordance with the provisions of this Non-Disclosure Agreement.
2. Landlord understands and acknowledges that its access, whether written,
verbal, or otherwise, to Financial Material of Physiome shall include, but not
be limited to, information not available to the general public which is required
by Physiome to be maintained as secret and confidential. Any material which is
in the public domain, i.e., a public annual report, shall not be subject to the
terms of the within Non-Disclosure Agreement. Accordingly, Landlord agrees:
- - That all documents and records of Physiome are and shall remain the
property of Physiome, at all times whatsoever;
- - That the Financial Material will not be used by Landlord in any way
detrimental to Physiome;
- - That it will not contact any of Physiome's employees or competitors, or
their affiliates, officers, or directors regarding the Financial Material;
and
- - That such Financial Material will be kept strictly and completely
confidential, except upon the prior written consent of Physiome, and will
not be disclosed by Landlord, or its Representatives, in any manner
whatsoever, in whole or in part.
3. Notwithstanding anything herein to the contrary, Landlord may disclose
Financial Material in accordance with the terms of the parties' Lease and this
Non-Disclosure Agreement(s) as follows: to not more than five (5) prospective
mortgagees and not more than five (5) prospective purchasers in any one
potential financing or sale. In each and every instance said prospective
mortgagee and purchaser shall as a pre-condition to any disclosure execute a
Non-Disclosure Agreement in form and substance substantially similar to the
within Non-Disclosure Agreement being executed by Landlord.
4. Landlord hereby agrees that the Financial Material will be used solely in
connection with any proposed mortgaging or sale of the Property, and pursuant to
the terms of the Lease with respect to the exercise of any Expansion Option. In
any event, Landlord shall be responsible for any breach of this Non-Disclosure
Agreement by any of its Representatives and hereby agrees, at its sole expense,
to take all reasonable measures (including but not limited to court proceedings)
to restrain its Representatives from prohibited or unauthorized disclosure or
use of the Financial Material. Landlord further agrees that the Financial
Material that is in reproducible form shall not be copied or reproduced at any
time without the prior written consent of Physiome except as may be authorized
in the said Lease.
5. In addition, without the prior written consent of Physiome, Landlord will
not, and will direct its Representatives not to, disclose to any person that the
Financial Material has been made available to Landlord or its Representatives or
any terms, condition or other facts with respect to Physiome's Financial
Material.
6. In the event that Landlord is requested or required by law, regulation,
supervisory authority or other applicable judicial or governmental order to
disclose any Financial Material, Landlord will provide Physiome with prompt
written notice of such request or requirement so that Physiome may seek an
appropriate protective order. If, failing the entry of a protective order,
Landlord is, in the opinion of its counsel or pursuant to Court order, compelled
to disclose Financial Material, Landlord may disclose that portion of the
Financial Material that its counsel advises, or pursuant to Court order, that it
is compelled to disclose and will exercise reasonable efforts to obtain
assurance that confidential treatment will be accorded to that portion of the
Financial Material that is being disclosed - the employment of good faith
efforts to obtain the execution of a Non-Disclosure Agreement in form and
substance substantially similar to the within Non-Disclosure Agreement shall
constitute reasonable efforts. In any event, Landlord will not oppose action by
Physiome to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Financial Material.
7. All Financial Material disclosed by Physiome shall be and shall remain the
property of Physiome. Within five days after being so requested by Physiome,
Landlord shall return or destroy all documents thereof furnished by Physiome at
the expiration of its Lease(with respect to any lender this shall be subject to
banking audit requirements).Except to the extent a party is advised in writing
by counsel that such destruction is prohibited by law, Landlord will also
destroy all written material, memoranda, notes, copies, excerpts and other
writings or recordings whatsoever prepared by Landlord or its Representatives
based upon, containing or otherwise reflecting any Financial Material at the
expiration of Physiome's Leasehold. Any destruction of materials shall be
confirmed by Landlord in writing. Any Financial Material that is not returned or
destroyed, including without limitation any oral Financial Material, shall
remain subject to the
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confidentiality obligations set forth in this Non-Disclosure Agreement. In the
event Physiome becomes a public company, Physiome shall within five (5) business
days after becoming public, furnish Landlord with its final registration
statement filed with the Securities and Exchange Commission, including all
financial statements filed in connection therewith, at which time, at Physiome's
request, Landlord shall return all Financial Material to Physiome without
retaining any copies whatsoever (with respect to any lender this shall be
subject to banking audit requirements).
8. It is understood and agreed that money damages would not be a sufficient
remedy for any breach of this Non-Disclosure Agreement and that Physiome shall
be entitled to specific performance and injunctive or other equitable relief as
a remedy for any such breach and Landlord further agrees to waive any
requirement for the security or posting of any bond in connection with such
remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of
this Non-Disclosure Agreement, but shall be in addition to all other remedies
available at law or equity to Physiome.
9. In the event of litigation relating to this Non-Disclosure Agreement a court
of competent jurisdiction is hereby authorized to order and direct that the
non-prevailing party shall pay all reasonable legal fees and costs of the
prevailing party incurred in connection with such litigation, including any
appeal therefrom.
10. This Non-Disclosure Agreement may not be amended except in writing signed by
both parties hereto. No failure or delay by Physiome in exercising any right
hereunder or any partial exercise thereof shall operate as a waiver thereof or
preclude any other or further exercise of any right hereunder. The invalidity or
unenforceability of any provision of this agreement shall not affect the
validity or enforceability of any other provisions of this agreement, which
shall remain in full force and effect.
11. This agreement may be executed in counterparts.
12. If any term, covenant or condition of this Non-Disclosure Agreement shall to
any extent be invalid or unenforceable, the remainder of this Non-Disclosure
Agreement shall not be affected, and each term, covenant or condition of this
Non-Disclosure Agreement shall be valid and enforceable to the fullest extent
permitted by law.
13. This Non-Disclosure Agreement is governed by the laws of the State of New
Jersey without regard to conflict of laws principles. Any action brought in
connection with this Non-Disclosure Agreement shall be brought in the federal or
state courts located in the State of New Jersey and the parties hereto hereby
irrevocably consent to the jurisdiction of such courts.
150 COLLEGE ROAD, LLC, A DELAWARE PHYSIOME SCIENCES, INC., A DELAWARE LIMITED
LIABILITY COMPANY, LANDLORD CORPORATION, TENANT
By: ___________________________ By: _____________________________
C. Dean Patrinely
Title: ________________________ Title: __________________________
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NON-DISCLOSURE AGREEMENT
ALTERNATE PARAGRAPH 7 [FOR INSTITUTIONAL ENTITIES THAT HAVE
EITHER AN EQUITY INTEREST (i.e., AS LANDLORD), OR A SECURITY INTEREST
(i.e., AS LENDER) IN 150 COLLEGE ROAD]
7. ALL FINANCIAL MATERIAL DISCLOSED BY PHYSIOME SHALL BE AND SHALL REMAIN THE
PROPERTY OF PHYSIOME. ANY FINANCIAL MATERIAL THAT IS NOT RETURNED OR DESTROYED
BY UNDERSIGNED, EITHER IN THE ORDINARY COURSE OF BUSINESS OR AFTER REQUEST BY
PHYSIOME, SHALL REMAIN SUBJECT TO THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN
THIS NON-DISCLOSURE AGREEMENT. IN THE EVENT PHYSIOME BECOMES A PUBLIC COMPANY,
PHYSIOME SHALL WITHIN FIVE (5) BUSINESS DAYS AFTER BECOMING PUBLIC, FURNISH
UNDERSIGNED WITH ITS FINAL REGISTRATION STATEMENT FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION, INCLUDING, ALL FINANCIAL STATEMENTS IN CONNECTION
THEREWITH.
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EXHIBIT K
PARKING
1. Landlord hereby agrees to make available to Tenant, during the term of
this Lease, for Tenant's exclusive use, up to ten (10) uncovered parking spaces
which shall be marked at Tenant's sole cost and expense "Reserved - "Physiome"
at locations mutually agreeable to both Tenant and Landlord, upon the terms and
conditions of this EXHIBIT K. The foregoing ten (10) parking spaces are referred
to herein collectively as the "Reserved Spaces." Landlord shall mark the spaces
as appropriate, but shall not have any responsibility or liability for policing
the use of the Reserved Spaces.
2. During the term of this Lease, Landlord shall provide parking
facilities located adjacent to the Building (the "Parking Facilities") of not
less than four (4) parking spaces per 1,000 square feet of Rentable Area of the
Building, inclusive of the Reserved Spaces and any Reserved Spaces allocated to
other tenants of the Building, for use by the Tenant and the other occupants of
the Building. Except in regard to the cost of marking the Reserved Spaces, such
parking shall be provided at no additional cost.
3. If any of the Reserved Spaces are not available or become unavailable
to Tenant (due to causes beyond the reasonable control of Landlord) during any
portion of the term of this Lease, Landlord shall use good faith efforts to make
available to Tenant alternate parking spaces located reasonably near the
Building until the Reserved Spaces covered by this Lease are made available to
Tenant.
4. Tenant's right to park in the Parking Facilities (other than the
Reserved Spaces) shall be non-exclusive. Tenant's use of the Reserved Spaces and
of any portion of the Parking Facilities shall be subject to such reasonable
rules and regulations as may be promulgated by the Landlord, or the operator of
the Parking Facilities, if any, from time to time furnished in writing to Tenant
reasonably in advance of their effectiveness.
5. Upon the occurrence of a monetary Event of Default (subject to the
applicable notice and cure rights set forth in the Lease in Section 8.1),
Landlord shall have the right (in addition to all other rights, remedies and
recourse hereunder and at law) to suspend any or all of Tenant's parking rights
hereunder without prior notice or warning to Tenant.
6. Landlord reserves the right in its sole and absolute discretion to
determine whether the Parking Facilities are or becoming overburdened, to
reasonably allocate, assign and reassign parking spaces among Tenant and other
tenants, to reasonably reconfigure the Parking Facilities, and/or to modify the
existing ingress to and egress from the Parking Facilities as Landlord shall
deem appropriate. Landlord will not materially diminish Tenant's access to the
Building or to the Parking Facilities and will not decrease the number of spaces
allocated to Tenant. In no event, however, will Tenant be treated differently
than any other Tenant and no other tenant will be given priority over Tenant.
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EXHIBIT L
RENEWAL OPTION
1. Tenant shall have the option (the "Renewal Option") to renew and extend
the term of this Lease for two (2) additional periods of five (5) years each
commencing at midnight on the day on which the then-existing term of this Lease
expires ("Renewal Term"). The Renewal Option may only be exercised by Tenant
giving written notice thereof ("Tenant's Notice") not more than thirteen (13)
months nor less than twelve (12) months prior to the expiration of the
then-existing term of this Lease. If Tenant fails to give notice of exercise of
the Renewal Option within such specified time period, the Renewal Option shall
be deemed waived and of no further force and effect and this Lease shall
terminate upon the expiration of the then-existing Lease term.
2. Tenant's right to extend this Lease as provided for herein can be
exercised only if, at the time of Tenant's exercise of the Renewal Option and
upon the commencement of the relevant Renewal Term, no Event of Default then
exists under this Lease. If such condition is not satisfied or waived by
Landlord, the Renewal Option shall be terminated and of no further force and
effect, any purported exercise thereof shall be null and void and this Lease
shall terminate upon the expiration of then-existing Lease term.
3. If Tenant exercises the Renewal Option (in accordance with and subject
to the provisions of this EXHIBIT L), the terms, covenants and conditions in
this Lease shall be amended consistent with the Applicable Percentage (as
defined below) of the then Net Effective Fair Market Terms (as hereinafter
defined) for comparable space in a comparable building in a comparable office
park in the Princeton metropolitan market ("Comparable Buildings"), except that
any terms, covenants and conditions that are expressly or by their nature
inapplicable to the Renewal Term (including, without limitation, any renewal)
shall be deemed void and of no further force and effect. For purposes of this
EXHIBIT L, the "Applicable Percentage" shall be ninety-seven (97%) percent.
Furthermore, the parties agree that the parking provisions set forth in EXHIBIT
K shall apply to any Renewal Term.
4. As used herein "Net Effective Fair Market Terms" shall mean all
monetary terms including effective rental rates, tenant improvement allowances
and other monetary concessions and provisions granted or provided in leases to
renewing tenants of
comparable quality, size and financial capability of Tenant in Comparable
Buildings for five (5) year renewals. If the Net Effective Fair Market Terms, at
the time in question, include any monetary provisions such as free rent, leasing
commissions paid to tenant's agents, improvement allowances or contributions,
rental escalations, lease assumptions, expense fees and base year operating
expenses, moving or other allowances or other monetary provisions, the Net
Effective Fair Market Terms shall take into account such monetary provisions and
compute a net effective per annum per rentable square foot Base Rental Rate for
the extended five year term (or other longer term agreed to by the parties)
exclusive of parking provisions which shall be governed solely EXHIBIT K hereto.
The fact that Landlord will not lose any rent because of marketing or
construction time will not be one of the factors analyzed in determining the Net
Effective Fair Market Terms. Furthermore, any monetary concessions granted
hereunder during the initial term of the Lease shall be void and inapplicable to
any Renewal Term. Within thirty (30) days after receipt of Tenant's notice of
exercise of the Renewal Option, in no event earlier than twelve (12) months
prior to the commencement of the Renewal Term, Landlord will notify Tenant in
writing of its determination of the Net Effective Fair Market Terms for the
Premises for the Renewal Term. If Tenant disagrees with Landlord's
determination, Tenant shall notify Landlord in writing within ten (10) days of
receipt of such notice and Landlord and Tenant shall then have a period of
twenty (20) days from and after Landlord's receipt of Tenant's notice of
disagreement to mutually resolve such Net Effective Fair Market Terms. If no
written agreement is reached within such twenty (20) day period, for any reason
then the parties shall be deemed to have elected to have the Net Effective Fair
Market Terms determined pursuant to paragraph 5 below unless the Tenant by
written notice to Landlord (which notice must be received by Landlord on or
before expiration of the twenty (20) day period) elects to terminate this
Renewal Option, time being of the essence.
5. If Net Effective Fair Market Terms are to be determined under this
Section 5 then within seven (7) days after the date of the expiration of the
twenty (20) day period set forth above, each party shall, by written notice to
the other, appoint a licensed commercial real estate broker with at least five
(5) years' full-time experience leasing office space in the Princeton
metropolitan area ("Qualified Broker") to determine the Net Effective Fair
Market Terms for the Premises. If a party does not appoint a Qualified Broker
within such seven (7) day
L-2
period, then the single Qualified Broker shall be the sole Qualified Broker and
shall set the Net Effective Fair Market Terms. The Qualified Brokers appointed
by the parties shall meet promptly and attempt to set the Fair Market Terms. If
they are unable to agree on the Net Effective Fair Market Terms within twenty
(20) days after the date the second Qualified Broker has been appointed, they
shall in writing notify Tenant and Landlord of their inability to agree which
notice shall be received by Tenant and Landlord within five (5) business days of
the expiration of the twenty (20) day period, and the Qualified Brokers shall
elect a third Qualified Broker within seven (7) days after their noice to
Landlord and Tenant. Each of the parties shall pay for the Qualified Broker
appointed by it and shall bear one-half of the cost of appointing the third
Qualified Broker and of paying the third Qualified Broker's fee. The third
Qualified Broker, however selected, shall be a person who has not previously
acted in any capacity for either party.
Within twenty (20) days after the selection of the third Qualified Broker,
the third Qualified Broker shall determine the Net Effective Fair Market Terms
and all three of the Qualified Brokers' Net Effective Fair Market Terms shall be
averaged excluding any single Net Effective Fair Market Terms determination
which is more than ten percent (10%) higher or lower than the middle
determination of Net Effective Fair Market Terms and the remaining
determinations shall then be averaged. Such final determination shall be binding
upon both Landlord and Tenant.
6. All notifications contemplated by this Paragraph, whether from Tenant
to Landlord, or from Landlord to Tenant, shall be in writing and shall be given
in the manner provided in the Lease, time being of the essence.
7. Upon determination of the Net Effective Fair Market Terms, in
accordance herewith the Lease shall be amended accordingly but an otherwise
valid exercise of this Renewal according to the terms set forth herein shall be
fully effective and binding on both Landlord and Tenant, whether or not such
amendment is executed.
L-3
EXHIBIT M
RIGHT OF SECOND OFFER
1. After the initial lease up of the Building and subject to extension
options, but not expansion options, granted to other Tenants in the Building
pursuant to such initial lease up as well as the existing Right of First Offer
provided to Novo Nordisk and subject to and upon the terms, provisions and
conditions set forth in this EXHIBIT M, Tenant shall have, and is hereby
granted, a continuing right of second offer (the "Second Offer Right") to lease
up to one additional floor in the Building (hereinafter sometimes called the
"Second Offer Premises"), which becomes available for lease during the initial
term of this Lease and any extensions of the initial term.
2. Tenant may exercise this Second Offer Right only if, at the time of
such exercise and at the time of Landlord's delivery of the Second Offer
Premises to Tenant, (a) no Event of Default exists, (b) Tenant is in possession
of the entire Premises (unless Landlord, in its sole discretion, elects to waive
such condition(s)), (c) Novo Nordisk has not exercised its Right of First Offer
on the Second Offer Premises, and (e) Tenant has a minimum valuation, acceptable
to Landlord, of $100,000,000 and sufficient cash flow, as determined by Tenant's
independent accountants in accordance with GAAP, to sustain its operations for a
minimum of three (3) years. If such condition(s) are not satisfied or waived by
Landlord, any purported exercise thereof shall be null and void. No assignee of
Tenant or sublessee of the Premises may exercise a Second Offer Right.
3. At any time that the Second Offer Premises becomes available for lease,
Landlord shall promptly deliver to Tenant written notice of such availability
and proposed terms for lease (which will be at the then prevailing market rate)
of the Second Offer Premises (an "Availability Lease Proposal"). Tenant shall
have a period of fifteen (15) calendar days after receipt of an Availability
Lease Proposal, subject to Novo Nordisk's Right of First Offer, to irrevocably
and unconditionally exercise its Second Offer Right to lease the applicable
Second Offer Premises upon the terms of the Availability Lease Proposal by
written notice to Landlord. In no event shall the term of the new lease for the
Second Offer Premises be less than five (5) years. If Tenant does not exercise a
Second Offer Right within such fifteen (15) calendar day period, the Second
Offer Right shall be waived with respect to such offered space. Any purported
conditional or qualified exercise of a Second Offer Right shall
be null and void. Upon Tenant's exercise of a Second Offer Right, Landlord and
Tenant shall negotiate an amendment to the Lease evidencing same.
4. If Tenant elects to exercise a Second Offer Right, the applicable
Second Offer Premises shall be subject to all of the terms, covenants and
conditions of this Lease except as set forth in the Availability Lease Proposal.
M-2
EXHIBIT N
ANTENNA LICENSE
THIS ANTENNA LICENSE is made and entered into this day of , 2000,
between 150 COLLEGE ROAD, a Delaware limited liability company ("Landlord"), and
PHYSIOME SCIENCES, INC. ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into a Lease Agreement dated
_____________, 2000 (the "Lease") for premises located in that certain building
known as 150 College Road West located in Princeton (Middlesex County) State of
New Jersey (the "Building"); and
WHEREAS, Tenant is desirous of locating a satellite or microwave receiving
or transmitting dish or other like communications equipment (collectively, the
"Satellite Dish") on the roof of the Building as required by its usual and
ordinary business operations; and
WHEREAS, Landlord is willing to permit same only upon the following terms
and conditions.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto agree as follows:
1. GRANT OF LICENSE. Provided Tenant provides Landlord with detailed
information regarding the Satellite Dish for Landlord' s prior reasonable review
and approval, Landlord grants to Tenant a non-exclusive license for the term of
the Lease, said term being more specifically described in Section 3 below, for
the purpose of maintaining and operating a Satellite Dish on a portion of the
roof located on the Building as shown on Appendix A attached hereto (the "Roof
Space"). The actual location of the Roof Space shall be in Landlord's reasonable
discretion. The grant of this license is for the sole benefit of and use by
Tenant and the Satellite Dish's use shall be personal to and may not be
assigned, sublet or transferred in whole or in part except pursuant to an
assignment or sublease according to the Lease to be used solely by such
sublessee or assignee for its own purposes. No third party may use the Satellite
Dish nor may Tenant receive any fees or other payment for the use of such
Satellite Dish. Landlord makes no representation or warranty as to the fitness
for any purpose of the Roof Space and shall have
N-1
no liability of any kind or nature directly or indirectly arising from or
related to the Satellite Dish and Related Equipment as hereinafter defined.
2. INSTALLATION. Landlord shall cause the installation of the
Satellite Dish. All installation expenses shall be at Tenant's sole cost and
expense. Installation expenses shall include, but not be limited to, all of the
incremental costs related to repairing or replacing the roof of the Building in
conjunction with such installation and the cost of installation of a walkway
providing access to the Satellite Dish (the "Walkway"). Prior to commencing the
installation of the Satellite Dish and any related equipment, conduits, cables
and materials located on the Roof Space or in other parts of the Building
(collectively, the "Related Equipment"), Tenant shall submit plans and
specifications regarding installation of the Satellite Dish and any Related
Equipment to Landlord for review and reasonable approval. Tenant shall have a
reasonable right of access to the chases, telephone and electrical closets
located in the Building for purposes of installing, repairing and maintaining
the Related Equipment, provided, however, such access shall be subject to the
reasonable approval of Landlord. The Related Equipment to be installed in the
telephone and electrical closets shall not occupy more than ____ cubic inches.
The plans and specifications shall include load factors, electrical platforms
leading to the Satellite Dish and any other specifications as Landlord may
require. Tenant agrees that Landlord may require certain aesthetic
specifications concerning the appearance of the Satellite Dish and any Related
Equipment, which specifications shall be in the reasonable discretion of
Landlord. Tenant may from time to time substitute or upgrade the Satellite Dish,
and/or the Related Equipment pursuant to the provisions of this License. The
Satellite Dish and any Related Equipment shall comply with the Design and
Development Criteria of Princeton Forrestal Center and the Restrictive Covenant
Declaration on Village South.
3. TERM. Tenant's right to use the Roof Space shall commence on the
date on which Tenant commences installation of the Satellite Dish or any of the
Related Equipment, but in no event earlier than the Commencement Date of the
Lease and shall terminate upon the termination of the Lease (the "Term") as such
Lease may be extended. Upon the termination hereof, the Satellite Dish, the
Walkway and the Related Equipment shall be removed by Landlord at Tenant's
expense, and Tenant shall reimburse Landlord for the costs of repair of any
damage to the building and roof caused by the removal and restore the roof.
N-2
4. LICENSE FEE. [Intentionally Omitted]
5. REROOFING AND REPAIR. Tenant acknowledges that Landlord may be
repairing or installing a new roof on the Building during the term of this
License. Landlord, the roofing contractor or consultant and Tenant shall
coordinate the repair and/or reroofing of the roof and Tenant shall pay in
advance on demand all increases in costs of repair or reroofing arising from or
related to the Satellite Dish, the Walkways and the Related Equipment.
Furthermore, to the extent that the Satellite Dish, Walkways or any Related
Equipment need to be dismantled, relocated, repaired or replaced in conjunction
with such reroofing or repair, all costs and expenses shall be borne by Tenant,
and Landlord shall have no liability in connection therewith, including, without
limitation, any interruption in service.
6. PERMITS. Prior to commencing the installation of the Satellite Dish,
Walkways and/or Related Equipment, Tenant shall, at its own cost and expense,
obtain each and every permit including building permits and approvals of any
applicable architectural control committee for same and deliver same to
Landlord. Landlord makes no representations or warranties with respect to zoning
or any other approvals. If Tenant cannot obtain such necessary permits or such
permits affect the Building or the Roof Space in any way by means of additional
requirements, then this License shall be deemed null and void and of no further
force and effect, unless Landlord in writing waives the conditions set forth
herein.
7. REPAIR AND MAINTENANCE OF SATELLITE DISH AND RELATED EQUIPMENT. Tenant
agrees that it shall keep and maintain the Satellite Dish, Walkways and the
Related Equipment in good condition and repair, at Tenant's sole cost and
expense, in such a manner so as not to conflict or interfere with the use of
other facilities installed in the Building and consistent with first-class
office buildings in New Jersey. Tenant shall notify Landlord of any maintenance
of the Satellite Dishes to be conducted and Landlord shall have the reasonable
right to approve such persons in advance of the work being performed.
Furthermore, Tenant agrees that it shall not damage nor shall it permit any
damage to the roof or the Roof Space or the Building in conjunction with the
Satellite Dish and the Related Equipment. Tenant agrees that the Satellite Dish
and the Related Equipment shall be of such types and frequencies that will not
cause interference with other existing antennas or dishes on the Building or on
any adjacent buildings in operation at the time of Tenant's installation. In the
event the Satellite Dish or the
N-3
Related Equipment cause such interference, Tenant shall immediately take all
steps necessary to correct and eliminate the interference. If Tenant cannot
eliminate the interference within a reasonable time of notification thereof,
Landlord shall remove the Satellite Dish and Related Equipment causing the
interference at Tenant's expense. Tenant shall use its best efforts to notify
any telephone and/or electrical service persons of the location of the Related
Equipment in the Building in order to minimize any interference with such
equipment.
8. REPAIR AND MAINTENANCE OF THE ROOF. Tenant hereby acknowledges and
agrees that Landlord, its agents, employees, contractors or anyone else
permitted by Landlord to be on the roof of the Building may from time to time
inspect, repair, replace or maintain the roof or any part or parts thereof, or
install additional improvements or fixtures on the said roof. Tenant shall
maintain the Walkway at it sole expense, except Landlord shall be liable for the
cost of repairs or maintenance to the Satellite Dish, Walkway and Related
Equipment caused by Landlord's misconduct or gross negligence.
9. COMPLIANCE WITH LAW AND WARRANTIES. Tenant, at Tenant's sole cost and
expense, agrees to keep, maintain and operate the Satellite Dish, Walkways and
the Related Equipment in accordance with all applicable laws, rules,
regulations, statutes, ordinances or other requirements of any kind or nature of
any governmental or quasi-governmental authority or the requirements of
Landlord's insurance underwriters and in compliance with any roofing warranties.
10. ALTERATIONS AND MECHANIC'S LIENS. Tenant shall not without the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
make any alterations, improvements or additions to the Satellite Dish, the
Related Equipment or any other materials related thereto. Tenant agrees that it
shall not alter, add to or move the Satellite Dish, the Walkway or Related
Equipment without Landlord's consent, which consent shall not be unreasonably
withheld by Landlord. In the event that Tenant desires to perform any
alterations, improvements, additions, repairs or other work on the Satellite
Dish, Walkways or the Related Equipment, Tenant shall first submit to Landlord a
written request therefor outlining the repairs, alterations, or other matters
which Tenant is requesting Landlord's consent. The work necessary to perform any
of the repairs or alterations under this Section shall be done by employees or
contractors approved in advance by Tenant subject to written contracts
containing all conditions Landlord may reasonably impose, including insurance
provisions. Tenant
N-4
agrees that it shall defend and hold Landlord and the Building harmless from all
costs, damages, liens, for labor, services or materials related to any work done
on the additions by Tenant.
11. DAMAGE BY TENANT. Subject to the waiver of subrogation as set forth in
Section 7.04 of the Lease, which is incorporated herein by reference, if the
Building, elevators, boilers, engines, pipes, electrical apparatus, or any other
elements of the Building or the Building roof or any portion thereof, become
damaged or destroyed through any act of Tenant, its servants, agents, employees,
contractors or anyone permitted by Tenant to be working in the Building or on
the Satellite Dish, Walkways or the Related Equipment, whether or not such act
was a result of the negligence or willful misconduct of Tenant or any such
party, then the cost of any repairs, replacements, alterations and all damages
incurred by Landlord shall be borne by Tenant who shall, within thirty (30) days
of demand, pay the same to Landlord.
12. TENANT'S INSURANCE. Tenant shall with respect solely to the Satellite
Dish, during the entire term of this License, at its sole cost and expense,
obtain, maintain, and keep in full force and effect insurance with coverages,
amounts, with companies and in form reasonably acceptable to Landlord naming
Landlord, the property manager and Interest Holder as insureds thereunder. If
the cost of Landlord's insurance increases as a result directly or indirectly of
this License, the Satellite Dish or the Related Equipment then Tenant shall pay
the costs of such increases directly to Landlord upon demand.
13. ATTORNEYS' FEES. In the event of any litigation or arbitration between
Landlord and Tenant to enforce any provision of this License or any right of
either party hereto, the unsuccessful party to such litigation or arbitration
shall pay to the successful party all costs and expenses, including reasonable
attorneys' fees, incurred therein.
14. INDEMNIFICATION; RELEASE. From and after the date hereof, Tenant
hereby agrees to indemnify, defend, and save Landlord harmless from and against
all claims, demands, liability, loss, cost, damage, or expense, including
attorneys' fees, incurred by or asserted against Landlord as a result of or
arising out of this License including the installation, use or existence of the
Satellite Dish, Walkways and Related Equipment by Tenant. This indemnity shall
survive expiration or termination of this License and/or the Lease. Tenant
hereby irrevocably releases Landlord, its agents, employees, invitees or
contractors, from any claims, damages, expenses or costs of
N-5
any kind or nature, whether known or unknown, arising from or related to this
License or any act or the negligence of Landlord, its employees, agents,
invitees or contractors, it being understood and agreed that the Satellite Dish
and Related Equipment are at the sole risk, cost and expense of Tenant.
15. DEFAULT BY TENANT. Each one of the following events is herein referred
to as an "event of default":
a. Tenant shall fail to make due and punctual payment of any amounts
payable hereunder, and such failure shall continue for five (5) days after
receipt of written notice from Landlord;
b. Tenant shall default on any term or condition to be performed by
it under the Lease and such default is not cured within the applicable cure
period, if any;
c. This License or the estate of Tenant hereunder shall be
transferred to or shall pass to or devolve upon any other person or party,
except as permitted in the Lease;
d. Tenant shall fail to perform any of the other agreements, terms,
covenants or conditions hereof on Tenant's part to be performed, and such
non-performance shall continue for a period of ten (10) days after written
notice thereof by Landlord to Tenant, or if such performance cannot be
reasonably had within such ten (10) day period, Tenant shall not in good faith
have commenced such performance within such ten (10) day period and shall not
thereafter diligently proceed to completion;
16. REMEDIES OF LANDLORD. If any one or more events of default shall
happen, then Landlord shall have the right, at Landlord's election, to terminate
this License by written notice to Tenant, and to pursue any other remedy
provided in law or in equity for damages incurred by Landlord.
17. NOTICE. Any notice from Landlord to Tenant or from Tenant to Landlord
shall be in writing and shall be delivered in accordance with the terms of the
Lease.
18. TRANSMITTER/RECEIVER. Tenant hereby agrees that its transmitter and
receiver may not cause or pose any possible health risk of any kind or nature.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this License the day
and year first above written.
LANDLORD
150 College Road, LLC, a Delaware
limited liability company
By: ______________________________
C. DEAN PATRINELY
Date: ____________________________
TENANT
PHYSIOME SCIENCES, INC., a New
Jersey corporation
__________________________________
By: ______________________________
Name: ____________________________
Title: ___________________________
Date: ____________________________
N-7
EXHIBIT O
SUBORDINATION, ATTORNMENT AND
NON-DISTURBANCE AGREEMENT
THIS SUBORDINATION, ATTORNMENTAND NON-DISTURBANCE AGREEMENT ("THIS
AGREEMENT"), is made this _______day of _______, ____, by and among
MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY, in its capacity as trustee of the
AFL-CIO Building Investment Trust, a trust existing under the laws of Maryland,
and not in its corporate capacity ("TRUSTEE"), 150 COLLEGE ROAD, LLC, a Delaware
limited liability company ("LANDLORD"), and ________________________________, a
__________("TENANT").
RECITALS
R-1. Landlord and Tenant have entered into a Lease Agreement dated
____________, ______ ("THE LEASE"), by which the Landlord has leased to the
Tenant certain premises situate and lying in Plainsboro Township, Middlesex
County, New Jersey, which are described in the Lease ("THE PREMISES").
R-2. Trustee is the holder of a mortgage and security agreement (which
mortgage and security agreement, together with each amendment, restatement,
replacement, extension, increase or other modification thereto, is hereinafter
called "THE INDENTURE") dated September 11, 2000, and recorded with the office
of the Clerk of Middlesex County, New Jersey, from the Landlord to, or for the
benefit of, Trustee, securing a loan made by Trustee to the Landlord, covering
the real property described therein and in EXHIBIT A attached hereto ("THE
PROPERTY"), in which the Premises are located.
R-3. Landlord and Trustee have entered into a purchase and sale agreement
(which purchase and sale agreement, together with each amendment, restatement,
replacement, extension, increase or other modification thereto, is hereinafter
called "THE PURCHASE AGREEMENT") by and between Trustee, as purchaser, and
Landlord, as seller, dated September 11, 2000, a memorandum of which is recorded
with the office of the Clerk of Middlesex County, New Jersey for the Property in
which the Premises are located.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual entry into this
Agreement by the parties hereto, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged by each party hereto,
and anything contained in the Lease to the contrary notwithstanding, the parties
hereto, intending to be legally bound, hereby agree as follows:
Section 1. Subordination. The Lease is and shall be subject and
subordinate to the lien, operation and effect of the Indenture and all renewals,
modifications, consolidations, replacements, increases and extensions thereof.
Section 2. Effect of foreclosure or purchase.
2.1. Foreclosure under Indenture or purchase under Purchase
Agreement.
2.1.1. Subject to the provisions of paragraph 2.1.2 below, if
any foreclosure proceeding is brought under the Indenture, or if the Property is
acquired by Trustee (or any subsequent holder of the Indenture) by deed in lieu
of foreclosure, or otherwise pursuant to, or under threat of the exercise of,
Trustee's rights under the Indenture (collectively, a "FORECLOSURE"), then,
(a) a Foreclosure shall not operate to terminate the Lease or
Tenant's rights thereunder, including Tenant's remedies (except that a
Foreclosure shall operate to terminate any option, right of first refusal or
other right to purchase [but not to lease] the Premises or any or all of the
remainder of the Property held by Tenant under the Lease), and
(b) Trustee, for itself and its successors and assigns, shall
recognize the Lease and Tenant's rights thereunder, and shall not otherwise
disturb the Tenant in its possession of the Premises, and shall assume the
obligations of the landlord under the Lease arising after the Foreclosure
(subject to the terms and conditions of this Agreement), provided that (i)
Tenant is not then in default under the Lease beyond any applicable notice and
cure period under the Lease and (ii) Tenant continues to pay the rent and
otherwise to perform its obligations hereunder and under the Lease, subject to
any applicable provisions of the Lease regarding notice and/or grace or cure
periods.
2.1.2. Notwithstanding anything contained in the Lease to the
contrary, neither Trustee nor any purchaser at the Foreclosure shall be:
(a) liable for any breach, act or omission of Landlord or any
other person under the Lease,
(b) subject to any offset or defense which Tenant may have
against Landlord or any other person under the Lease,
(c) bound by any payment of rent made by Tenant to Landlord or
any other person for a period beyond the month during which any judicial
proceeding required to effect a Foreclosure is ratified,
(d) bound by any termination, amendment or modification of the
Lease made without Trustee's express, written consent thereto,
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(e) bound by any notice given by Tenant to Landlord pursuant
to the Lease or otherwise, unless and until a copy of it is given to Trustee, or
(f) liable for any security deposit or other payment made
under the Lease, unless both (i) Landlord has actually delivered possession and
control thereof to Trustee or such purchaser, as the case may be, and (ii) it
has been specifically identified, and accepted by Trustee or such purchaser, as
the case may be, as such and for such purpose.
2.1.3. Notwithstanding anything contained herein to the
contrary, following a Foreclosure Trustee shall not be obligated to perform any
or all of Landlord's obligations with respect to the construction of
improvements to the Property or within the Premises; provided, however, that if
Trustee elects not to perform such construction obligations following a
Foreclosure, then Tenant, following thirty (30) days' written notice to Trustee,
may elect to terminate the Lease unless within such thirty (30) day period
Trustee shall provide written notice to Tenant that Trustee has elected to
perform such construction obligations and thereafter promptly commences such
performance.
2.1.4. Subject to the other provisions of this Agreement, in
the event of a Foreclosure, Trustee shall sell the Property subject to the
operation and effect of the Lease.
2.2. Foreclosure under other instruments or liens. Tenant shall not,
without first obtaining Trustee's express, prior written consent thereto,
subordinate the Lease or any of Tenant's right, title and interest in and to the
Premises thereunder to the lien, operation or effect of any mortgage, deed of
trust, other security agreement or other instrument (other than the Indenture)
and Landlord shall not request any such subordination from Tenant unless Trustee
has so consented. If any Foreclosure proceeding is brought by any person under
any instrument or lien (other than that of the Indenture) against the Property
(whether or not Trustee has consented to such instrument or lien, or this Lease
is subordinate thereto), Tenant shall promptly attorn to the purchaser in such
Foreclosure proceeding, upon all of the terms, covenants and conditions of the
Lease, provided that such purchaser agrees with Tenant in writing to recognize
Tenant's rights under the Lease and to assume the obligations of the landlord
under the Lease arising thereafter for the original term and the term of any
renewal thereof permitted Tenant by the Lease, so long as Tenant continues to
pay the rent and otherwise to perform its obligations hereunder and under the
Lease.
2.3. Attornment to persons owning or controlling the Property.
Subject to Section 2.1.1 (b), Tenant shall attorn to (i) Trustee whenever
Trustee is in possession of the Property; (ii) any receiver appointed by or for
Trustee in any action to take possession of the Property; and (iii) any party
hereafter acquiring title to the Property while the Lease remains in effect,
and, promptly on Tenant's receipt of a written request therefor from Trustee,
Tenant shall execute and deliver to Trustee an appropriate agreement of
attornment confirming that Tenant is and then remains bound under all of the
terms, covenants and conditions of the Lease.
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2.4. Termination of options. Any option (excluding any renewal or
expansion option), right of first refusal or other right to purchase [but not to
lease] the Premises or any or all of the remainder of the Property which the
Tenant may hold under the Lease (i) shall not be enforceable against Trustee or
its successors and assigns, and (ii) shall cease to be of any further force or
effect automatically and immediately upon Trustee's acceptance of any conveyance
to Trustee of any or all of Landlord's equity of redemption under the Indenture
in and to any or all of the Property.
2.5. Obligations with respect to real property not included within
the Property. Notwithstanding any provision of the Lease to the contrary, Tenant
acknowledges and agrees that any covenant by Landlord under the Lease with
respect to the performance of any obligation relating to real property not
included within the Property shall not be enforceable against Trustee or any
other person acquiring the Property pursuant to a Foreclosure.
Section 3. Acknowledgment of Assignment of Lease. Tenant hereby
acknowledges that the Lease has been or will be assigned by Landlord to Trustee
by an assignment of leases and rents, and agrees that from and after the date
hereof, unless Trustee has first consented thereto expressly and in writing,
Tenant will (i) pay no rent or installment thereof under the Lease more than
thirty (30) days before its due date, (ii) except as may be expressly permitted
by the Lease, pay such rent when due, without any deduction, set-off or
counterclaim whatsoever, and (iii) not surrender its leasehold estate or consent
to the modification of the terms of the Lease or to the termination thereof. If
Trustee, pursuant to such assignment of leases and rents from Landlord to the
Trustee, elects by written notice to Tenant to require Tenant to pay to Trustee
the rent and other charges payable by Tenant under the Lease, then (unless and
until Trustee cancels such election by written notice to Tenant), Tenant shall
pay such amounts directly to Trustee and landlord acknowledges and agrees that
such payment shall satisfy Tenant's obligations with respect to the payment of
such amounts under the Lease. Landlord hereby authorizes and directs Tenant to
deliver such payment to Trustee upon receipt of such written notice and shall
indemnify and hold Tenant harmless from any loss, cost, expense or claim
incurred by Tenant in connection with its compliance with this provision. Tenant
acknowledges and agrees that, notwithstanding any provision of the Lease to the
contrary, Tenant shall not require any evidence of Trustee's authority to
collect rents or any other charges, other than Trustee's written notice.
Section 4. Landlord's defaults.
4.1. Notices to Landlord. Anything in the Lease to the contrary
notwithstanding, Tenant shall provide to Trustee a copy of each notice which
Tenant may from time to time serve upon Landlord pursuant to the Lease or
otherwise in connection therewith, and no such notice given to Landlord shall be
effective unless such copy is provided to Trustee.
4.2. Opportunity to Cure. Tenant shall not exercise any right at
law, in equity or under the Lease (including, but not limited to, any right of
termination, other
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than its right of termination set forth in Section 1.4 (d) of the Lease) arising
as a result of (i) a default by Landlord in the performance of its obligations
under the Lease, or (ii) any other failure of Landlord perform an obligation
within a required period on or before the date required under the Lease or (iii)
the failure to restore the Premises following a casualty or condemnation in
accordance with the provisions of the Lease (regardless of whether any such
failure under subparts (ii) or (iii) constitutes a default under the Lease),
unless and until Tenant has given express, written notice of such default or
failure to Trustee. Trustee, following such notice, shall have the right, but
not the obligation, to cure any such default or failure within (a) fifteen (15)
days if such default may be cured upon the payment of money, or (b) thirty (30)
days for any other default or failure, or such additional time as may be
necessary to cure such default or failure if, within such thirty (30) day period
Trustee commences such cure and thereafter pursues such cure with diligence and
continuity; provided, however, that if the cure requires Trustee to obtain
possession of the Property, the thirty (30) day period shall not commence until
Trustee acquires possession of the Property, so long as Trustee commences within
the thirty (30) day period following Tenant's written notice to acquire
possession of the Property and pursues the acquisition of possession of the
Property with due diligence, by Foreclosure or otherwise. All payments so made,
and all things so done and performed, by Trustee shall be as effective to
prevent Landlord's rights from being forfeited or adversely affected because of
such default or failure as if it had been done and performed by Landlord.
Section 5. Notices.
5.1. Manner. All notices, demands or requests required or permitted by
this Agreement to be given by or to Trustee, Landlord or Tenant (i) shall be in
writing, and (ii) until otherwise specified in a written notice by the
respective parties or any of them, shall be sent to the parties at their
respective addresses set forth hereinbelow:
(i) if to Trustee:
Mercantile-Safe Deposit and
Trust Company, Trustee
Institutional Real Estate
Eighth Floor
Two Hopkins Plaza
Baltimore, Maryland 21201
Attention: Ardyth L. Hall,
Senior Vice President;
with a copy to:
Legg Mason Real Estate Services, Inc.
1735 Market Street
12th Floor
Philadelphia, Pennsylvania 19103-7501
Attention: Kathleen M. Hands,
Director, Equity Portfolio Management;
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(ii) if to Landlord:
150 College Road, LLC
c/o Patrinely Group, LLC
1600 Post Oak Boulevard, Suite 1600
Houston, Texas 77056
Attention: C. Dean Patrinely;
with copies to:
150 College Road, LLC
c/o Patrinely Group, LLC
7475 Wisconsin Avenue, Suite 1150
Bethesda, Maryland 20814
Attention: William S. Glading;
and
Andrews & Kurth, L.L.P.
600 Travis, Suite 4200
Houston, Texas 77072
Attention: Michael A. Boyd Esquire;
(iii) if to Tenant: (Until Tenant occupies the Premises, after which
time Tenant's address for notices will be the Premises, the
address for notices to Tenant is)
Physiome Sciences, Inc.
307 College Road East
Princeton, New Jersey 08540
Attn: Jane M. Maida;
with a copy to:
Buchanan Ingersooll
650 College Road East, 4th Floor
Princeton, New Jersey 08540
Attention: Stuart B. Dember, Esq.;
5.2. Receipt. Each such notice, demand or request shall be sent by
personal delivery, or by United States Mail registered or certified mail, return
receipt requested, or by Federal Express or other similar overnight delivery
service, postage prepaid, to its addressee at its address as set forth
hereinabove. Each such notice, demand or request (i) if deposited in the U.S.
Mail as provided above shall be deemed to have been received by its addressee on
the third (3rd) business day after the day of mailing and (ii) if so deposited
with Federal Express or another similar overnight delivery service in accordance
with such service's requirements for delivery on the next business
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day, shall be deemed to have been received by its addressee on the next business
day after the day of deposit.
Section 6. General.
6.1. Effectiveness, Complete Understanding, etc. This Agreement
shall become effective upon and only upon its execution and delivery by each
party hereto. This Agreement represents the complete understanding among the
parties hereto as to the subject matter hereof, and supersedes all prior
negotiations, representations, guaranties, warranties, promises, statements or
agreements, either written or oral, among them as to the same. This Agreement
may be amended by and only by an instrument executed and delivered by each party
hereto. No party hereto shall be deemed to have waived the exercise of any right
which it holds hereunder unless such waiver is made expressly and in writing
(and no delay or omission by any party hereto in exercising any such right shall
be deemed a waiver of its future exercise). No such waiver made as to any
instance involving the exercise of any such right shall be deemed a waiver as to
any other such instance, or any other such right. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns hereunder.
6.2. Applicable law. This Agreement shall be given effect and
construed by application of the law of the state in which the Property is
located. Landlord and Tenant consent to any action or proceeding arising under
this Agreement being brought in the courts of the state in which the Property is
located; provided, however, that if any such action or proceeding arises under
the Constitution, laws or treaties of the United States of America, or if there
is a diversity of citizenship between the parties thereto, so that it is to be
brought in a United States District Court, Landlord and Tenant consent to such
action being brought in the United States District Court for the district in
which the Property is located or any successor federal court having original
jurisdiction.
6.3. Definitions and construction.
6.3.1. As used herein, the following terms have the following
meanings: (a) "person" means a natural person, a trustee, a corporation, a
partnership and any other form of legal entity; (b) "the Lease" means the lease
referred to hereinabove, as originally executed by the parties thereto, and as
amended or supplemented by any written agreement heretofore or hereafter made
from time to time, if Trustee has consented in writing to such amendment or
supplement; (c) "Trustee" means the person hereinabove named as such and its
successors and assigns, any present or future holder of any promissory note
secured by the Indenture, and any person who succeeds to Landlord's interest in
the Property by, through or under a Foreclosure; and (d) "Landlord" or "Tenant"
means each person hereinabove so named and its respective successors and
assigns.
6.3.2. All references made (a) in the neuter, masculine or
feminine gender shall be deemed to have been made in all such genders, (b) in
the singular or plural number shall be deemed to have been made, respectively,
in the plural or
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singular number as well, (c) to any Section, subsection, paragraph or
subparagraph shall, unless therein expressly indicated to the contrary, be
deemed to have been made to such Section, subsection, paragraph or subparagraph
of this Agreement.
6.4. Severability. No determination by any court, governmental body
or otherwise that any provision of this Agreement or any amendment hereof is
invalid or unenforceable in any instance shall affect the validity or
enforceability of (a) any other such provision, or (b) such provision in any
circumstance not controlled by such determination. Each such provision shall be
valid and enforceable to the fullest extent allowed by, and shall be construed
wherever possible as being consistent with, applicable law.
6.5. Liability.
6.5.1. Whenever Landlord or Tenant consists of more than one
person, such persons shall be jointly and severally liable for, respectively,
Landlord's and Tenant's adherence to the terms and satisfaction of the
conditions hereof.
6.5.2. Trustee's liability under this Agreement shall not in
any event exceed its interest in the loan secured by the Indenture or the
Property, as the case may be. In addition, if at any time Trustee shall
undertake to perform the landlord's obligations under the Lease or succeed to
the ownership of the Property, then, notwithstanding any provision of the Lease
to the contrary, Trustee's liability for performance of the landlord's
obligations under the Lease shall not, in any event, exceed Trustee's interest
in the Property.
6.6. Confidentiality of Financial Statements.
Trustee agrees to keep confidential all Tenant financial statements
received by it from either Landlord or Tenant pursuant to Section 13.3(k) of the
Lease.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
-8-
IN WITNESS WHEREOF, each party hereto has executed this Agreement under
seal or caused it to be executed under seal on its behalf by its duly authorize
representatives, the day and year first above written.
WITNESS/ATTEST: MERCANTILE-SAFE DEPOSIT AND
TRUST COMPANY, in its
capacity as trustee of the
AFL- CIO Building
Investment Trust and not in
its corporate capacity
_________________________ By: _______________________(SEAL)
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED FROM PRECEDING PAGE]
WITNESS/ATTEST: 150 COLLEGE ROAD, LLC,
a Delaware limited liability company
_________________________ By: __________________________(SEAL)
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED FROM PRECEDING PAGE]
WITNESS/ATTEST:
__________________________________________
a _________________________________________
____________________________ By: ____________________________________(SEAL)
Name:
Title:
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STATE OF MARYLAND: COUNTY OF____________________: TO WIT:
I HEREBY CERTIFY that on this _____________day of ______________, _______,
before me, a Notary Public for the state and county aforesaid, personally
appeared ____________________, known to me or satisfactorily proven to be the
person whose name is subscribed to the foregoing instrument, who acknowledged
that he/she is a ___________________________vice president of MERCANTILE-SAFE
DEPOSIT AND TRUST COMPANY, a corporation organized and existing under the law of
Maryland, that he/she has been duly authorized to execute, and has executed, the
foregoing instrument on behalf of the said entity, as trustee, for the purposes
therein set forth, and that the same is its act and deed, as trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and year
first above written.
______________________________
Notary Public
My commission expires on ____________________.
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STATE or COMMONWEALTH of _________________)
)ss:
COUNTY or CITY of ________________________)
BEFORE ME, the undersigned Notary Public in and for said City/County and
State/Commonwealth, this ____ day of __________, ____, personally appeared the
above-named _____________________, known to me individually as
__________________ of 150 COLLEGE ROAD, LLC, a Delaware limited liability
company, who, being duly sworn, acknowledged that the statements therein are
true and that she/he did sign the foregoing instrument as her/his free act and
deed, and in her/his capacity as _________________ of 150 COLLEGE ROAD, LLC, and
that the same is duly authorized act and deed of said 150 COLLEGE ROAD, LLC.
WITNESS my hand and official seal this ___ day of __________, ____.
______________________________
Notary Public
______________________________
Name (Printed)
My Commission Expires: __________
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STATE or COMMONWEALTH of ____________________)
)ss:
COUNTY or CITY of ___________________________)
BEFORE ME, the undersigned Notary Public in and for said City/County and
State/Commonwealth, this ____ day of __________, ____, personally appeared the
above-named _____________________, known to me individually as
__________________ of ___________________________________________, a _________,
who, being duly sworn, acknowledged that the statements therein are true and
that she/he did sign the foregoing instrument as her/his free act and deed, and
in her/his capacity as _________________ of ___________________________, and
that the same is the duly authorized act and deed of said ___________________.
WITNESS my hand and official seal this ___ day of __________, ____.
________________________
Notary Public
________________________
Name (Printed)
My Commission Expires: ______
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SUBORDINATION, ATTORNMENT
AND NON-DISTURBANCE AGREEMENT
EXHIBIT A
Description of the Property
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement (this "First Amendment") is made
and entered into as of this 7th day of January, 2002, by and between 150 COLLEGE
ROAD, LLC ("Landlord") and PHYSIOME SCIENCES, INC ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
dated December 21, 2000, and Commencement Date Agreement dated July 18, 2001
(collectively the "Lease"), with respect to certain Premises located in the
building known as 150 College Road West in Village South at Princeton Forrestal
Center, as such Premises are more particularly described in the Lease.
WHEREAS, this First Amendment is executed by Landlord and Tenant to amend
Tenant's Proportionate Share and the Rentable Area of the Building, as those
terms are defined in the Lease.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants expressed in the Lease, Landlord and Tenant hereby agree to amend the
Lease as follows:
1. Section 2.2 (d) of the Lease is hereby amended to state that the
aggregate Rentable Area of the Building is 71,550, and that Tenant's
Proportionate is 35.41%.
2. Except as specifically set forth herein, all defined terms shall have
the definition set forth in the Lease.
3. To the extent of any conflict between this First Amendment and the
Lease, the terms of this First Amendment shall control.
4. Except as amended by this First Amendment, all other provisions of the
Lease remain unchanged and continue to be in full force and effect.
5. This First Amendment may be executed simultaneously in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, Landlord and Tenant have caused this First Amendment
to be executed as of the day and year first written above.
LANDLORD
150 College Road, LLC
a Delaware limited liability company
By: /s/ C. Dean Patrinely
--------------------------------
C. DEAN PATRINELY, Chief Executive Officer
TENANT
PHYSIOME SCIENCES, INC.,
a Delaware corporation
By: /s/ J. Maida
-----------------------------------
Name: Jane Maida
Title: CFO
SECOND AMENDMENT TO LEASE AGREEMENT
AMENDMENT dated December 31, 2003, by and between NEW VALLEY REALTY
CORPORATION, a Delaware corporation having an office at 712 Fifth Avenue, New
York, New York 10019 (herein called "LANDLORD") and PREDIX PHARMACEUTICALS
HOLDINGS, INC., a Delaware corporation having an office at 10K Gil, Woburn,
Massachusetts 01801 (herein called "TENANT").
STATEMENT OF FACTS
By lease agreement (herein called the "LEASE AGREEMENT") dated December
21, 2000, by and between 150 College Road, LLC (herein called "ORIGINAL
LANDLORD"), as landlord, and Physiome Sciences, Inc, (herein called "ORIGINAL
TENANT"), as tenant, Original Landlord leased to Original Tenant the entire
third (3rd) floor (the "Premises") of the building known as 150 College Road
West, Plainsboro Township (Middlesex County), New Jersey. The lease agreement
has heretofore been supplemented by a Commencement Date Agreement dated July 18,
2001 and amended by a First Amendment to Lease Agreement dated January 7, 2002,
each by and between Original Landlord and Original Tenant. The Lease Agreement,
as so supplemented and amended, is herein sometimes called the "LEASE").
Landlord is the successor to Original Landlord under the Lease, and Tenant
is the successor to Original Tenant under the Lease.
The parties now desire to further amend the Lease as hereinafter set
forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree as
follows:
1. Section 2.4 of the Lease Agreement is hereby amended to provide that
the annual reduction in the amount of the security deposit provided for therein
shall not be made from and after the date hereof and the amount of the security
deposit held by Landlord as of the date of this Amendment shall be and remain
the amount of the security deposit required to be maintained by Tenant
throughout the balance of the term of the Lease.
2. Exhibit L and Exhibit M to the Lease Agreement shall be deemed to be
deleted therefrom, with such force and effect as if such exhibits had never been
a part thereof.
3. Except as specifically set forth above, the Lease Agreement shall be
and remain unmodified, in full force and effect and binding upon Landlord and
Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have each caused this Amendment to
be duly executed and delivered as of the date and year first hereinabove set
forth.
NEW VALLEY REALTY CORPORATION
By: /s/ BENNETT BURKE
----------------------------------
Name: Bennett Burke
Title: Executive Vice President
PREDIX PHARMACEUTICALS HOLDINGS, INC.
By: /s/ NJG HAYES
----------------------------------
Name: NJG Hayes
Title: SVP Finance
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NEW VALLEY REALTY CORPORATION
712 FIFTH AVENUE
NEW YORK, NEW YORK 10019
January 22, 2004
Predix Pharmaceuticals Holdings, Inc.
10K Gill
Woburn, Massachusetts 01801
Re: Lease dated December 21, 2000, by and between 150 College Road, LLC,
as landlord, and Physiome Sciences, Inc., as tenant, as supplemented
by a Commencement Date Agreement dated July 18, 2001 and amended by
a First Amendment to Lease Agreement dated January 7, 2002 and a
Second Amendment to Lease Agreement dated contemporaneously herewith
(collectively the "Lease")
Gentlemen:
Reference is hereby made to the provisions of the Lease, pursuant to which
150 College Road, LLC leased to Physiome Sciences, Inc. the entire third (3rd)
floor (the "Premises") of the building known as 150 College Road West,
Plainsboro Township (Middlesex County), New Jersey. New Valley Realty
Corporation ("Landlord") is the successor to 150 College Road, LLC as the
landlord under the Lease. Predix Pharmaceuticals Holdings, Inc. ("Tenant") is
the successor to Physiome Sciences, Inc. as the tenant under the Lease.
Tenant has requested that Landlord consent to a subletting of the entire
Premises to Novo Nordisk Pharmaceuticals, Inc. ("Subtenant") pursuant to the
provisions contained in a certain sublease dated December 12, 2003, as amended
by a first amendment to sublease dated 1/14/04 (collectively, the "Sublease"). A
copy of the Sublease is attached to this letter as Exhibit A.
Landlord hereby consents to the subletting of the Premises to Subtenant
pursuant to the provisions contained in the Sublease, which consent is hereby
granted upon, and subject to, the following terms, covenants and conditions:
1. Neither the granting of such consent, nor anything contained in this
letter, shall be deemed or construed to:
(a) modify, waive, impair, or affect any of the covenants,
agreements, terms, provisions, or conditions contained in the Lease
(including, without limitation, the provisions of Section 1.5 thereof
regarding the permitted use of the Premises);
(b) waive any breach of any such covenants, agreements, terms,
provisions, or conditions, or any rights or remedies of Landlord against
any person, firm, association, or corporation liable or responsible for
the performance thereof; or
(c) enlarge or increase Landlord's obligations, or decrease
Landlord's rights, under the Lease,
and all of the covenants, agreements, terms, provisions and conditions of the
Lease shall be, and continue to be, in full force and effect. Without intention
to limit the generality of the foregoing in any respect, the provisions of
Article 9 of the Lease shall continue to apply to any assignment of the Lease
and/or any further subletting thereunder, as well as to any assignment of the
Sublease and/or any sub-subletting thereunder. For purposes hereof, any
modification or amendment of the Sublease shall be deemed to constitute a new
subletting under the Lease, as to which Landlord's prior written consent (not to
be unreasonably withheld, delayed, or conditioned) shall be required.
2. Tenant shall be and remain liable and responsible for the due keeping,
performance and observance of all the covenants, agreements, terms, provisions
and conditions set forth in the Lease on the part of Tenant to be kept,
performed and observed, including, without limitation, the full payment of the
Base Rental and Additional Rental now and/or hereafter becoming payable under
the Lease (expressly including as such, without limitation, adjustments of rent,
and any and all charges for any property, material, labor, utility, or other
similar or dissimilar services or materials rendered, supplied, or furnished by
Landlord in, or in connection with, the Premises or any part thereof, whether
for, or at the request of, Tenant or Subtenant), regardless of whether the
corresponding rental or additional rental paid or payable by Subtenant to Tenant
under the Sublease (if any) shall be greater or less than that payable by Tenant
to Landlord under the Lease. Without intention to limit the generality of the
foregoing in any respect, any breach, default, or violation of any of such
covenants, agreements, terms, provisions and/or conditions committed or suffered
by Subtenant shall be deemed to have been also committed or suffered by Tenant,
for which breach, default, or violation Landlord shall have all of the same
rights and remedies against Tenant as Landlord would have had if such breach,
default, or violation had been committed or suffered by Tenant directly.
3. Tenant shall indemnify, defend and hold Landlord, its partners,
directors and/or officers and their affiliates and/or subsidiaries harmless from
and against any claims, liability, losses, or expenses (including, without
limitation, attorneys' fees, court costs and disbursements incurred by Landlord
during settlement, at trial, or on appeal) in connection with any claim for
commission and/or fees by any broker or agent in connection with the Sublease
and/or any of the transactions provided for therein.
4. Tenant shall hold any and all payments received under the Sublease as a
trust fund, to be applied first to the satisfaction of all of Tenant's
obligations under the Lease before using any part thereof for any other purpose.
Kindly sign this letter below to confirm both your agreement to the
forgoing terms, covenants and conditions and your representation and warranty to
Landlord that:
(i) the copies of the documents comprising the Sublease reproduced as
Exhibit A hereto are true, accurate and complete copies thereof;
(ii) the Sublease represents the complete understanding between Tenant and
Subtenant regarding the subject matter thereof; and
(iii) no compensation of any kind, other than as set forth in the
Sublease, has been,o or will be, paid or payable by Subtenant to Tenant in
connection with the Sublease.
This letter may not be changed orally, but only by an agreement in writing
signed by the party against whom enforcement of any change is sought.
This letter may be signed in counterpart originals, all of which, when
taken together, shall constitute but one document. This letter may also be
signed by fax transmission.
Very truly yours,
NEW VALLEY REALTY CORPORATION
By: /s/ BENNETT BURKE
-----------------------------------
Name: Bennett Burke
Title: Executive Vice President
AGREEMENTS, REPRESENTATIONS AND WARRANTIES CONFIRMED:
PREDIX PHARMACEUTICALS HOLDINGS, INC.
By: /s/ NJG HAYES
---------------------------------
Name: NJG Hayes
Title: SVP Finance
NEW VALLEY CORPORATION
712 FIFTH AVENUE
NEW YORK, NEW YORK 10019
as of September 30th, 2004
Predix Pharmaceuticals Holdings, Inc.
10K Gill Street
Woburn, Massachusetts 01801
Re: Lease dated December 21, 2000, by and between 150 College Road, LLC,
as landlord, and Physiome Sciences, Inc., as tenant, as supplemented
by a Commencement Date Agreement dated July 18, 2001 and amended by
a First Amendment to Lease Agreement dated January 7, 2002 and a
Second Amendment to Lease Agreement dated December 31, 2003
(collectively, the "LEASE")
Gentlemen:
Reference is hereby made to the provisions of the Lease, pursuant to which
150 College Road, LLC, leased to Physiome Sciences, Inc., the entire third (3rd)
floor (the "PREMISES") of the building known as 150 College Road West,
Plainsboro Township (Middlesex County), New Jersey. New Valley Corporation
("LANDLORD") is the successor to 150 College Road, LLC as the landlord under the
Lease. Predix Pharmaceuticals Holdings, Inc. ("TENANT") is the successor to
Physiome Sciences, Inc., as the tenant under the Lease.
Landlord has heretofore consented to a subletting of the entire Premises
by Tenant to Novo Nordisk Pharmaceuticals, Inc. ("SUBTENANT") pursuant to the
provisions contained in a certain sublease dated December 12, 2003, as amended
by a first amendment to sublease dated January 14, 2004 (collectively, the
"SUBLEASE").
Tenant has now requested that Landlord consent to a second amendment to
sublease dated July 6, 2004, by and between Tenant and Subtenant (the "SUBLEASE
AMENDMENT"), a copy of which Sublease Amendment is attached to this Letter as
EXHIBIT A. Tenant has also requested Landlord's consent to a further subletting
of the entire Premises by Subtenant to ZS Associates, Inc. ("UNDERTENANT")
pursuant to the provisions contained in a certain secondary sublease dated
contemporaneously herewith (the "SECONDARY SUBLEASE"), a copy of which is
attached to this letter as EXHIBIT B. Tenant has further requested Landlord's
consent to the making of certain alterations in and to the Premises by or on
behalf of Undertenant in order to prepare the Premises for Undertenant's use and
occupancy, which alterations (the "INITIAL ALTERATIONS") are more particularly
described in the plans and specifications listed on EXHIBIT C hereto.
Landlord hereby consents to the amendment of the Sublease as set forth in
the Sublease Amendment, as well as to the further subletting of the Premises by
Subtenant to Undertenant pursuant to the provisions contained in the Secondary
Sublease and the performance of the Initial Alterations. In connection
therewith, the parties agree to the following terms, covenants and conditions:
1. Neither the granting of such consents, nor anything contained in this
letter, shall be deemed or construed to:
(a) modify, waive, impair, or affect any of the covenants,
agreements, terms, provisions, or conditions contained in the Lease
(including, without limitation, the provisions of Section 1.5 thereof
regarding the permitted use of the Premises);
(b) waive any breach of any such covenants, agreements, terms,
provisions, or conditions, or any rights or remedies of Landlord against
any person, firm, association, or corporation liable or responsible for
the performance thereof; or
(c) enlarge or increase Landlord's or Tenant's obligations, or
decrease Landlord's or Tenant's rights, under the Lease,
and all of the covenants, agreements, terms, provisions and conditions of the
Lease shall be, and continue to be, in full force and effect. Without intention
to limit the generality of the foregoing in any respect, the provisions of
Article 9 of the Lease shall continue to apply to any assignment of the Lease
and/or any further subletting thereunder, as well as to any assignment of the
Sublease or the Secondary Sublease and/or any further subletting or underletting
under either agreement. For purposes hereof, any modification or amendment of
the Sublease or the Secondary Sublease shall be deemed to constitute a new
subletting under the Lease, as to which Landlord's prior written consent (not to
be unreasonably withheld, delayed, or conditioned) shall be required.
2. Tenant shall be and remain liable and responsible for the due keeping,
performance and observance of all of the covenants, agreements, terms,
provisions and conditions set forth in the Lease on the part of Tenant to be
kept, performed and observed, including, without limitation, the full payment of
the "Base Rental" and "Additional Rental" (as such terms are defined in the
Lease) now and/or hereafter becoming payable under the Lease (expressly
including as such, without limitation, adjustments of rent, and any and all
charges for any property, material, labor, utility, or other similar or
dissimilar services or materials rendered, supplied, or furnished by Landlord
in, or in connection with, the Premises or any part thereof, whether for, or at
the request pursuant to Paragraph 5 below of, Tenant or Subtenant), regardless
of whether the corresponding base rent or additional rental (if any) paid or
payable by Subtenant to Tenant under the Sublease shall be greater or less than
that payable by Tenant to Landlord under the Lease. Without intention to limit
the generality of the foregoing in any respect, any breach, default, or
violation of any of such covenants, agreements, terms, provisions and/or
conditions committed or suffered by Subtenant shall be deemed to have been also
committed or suffered by Tenant, for which breach, default, or violation
Landlord shall have all of the same rights and remedies against Tenant as
Landlord would have had if such breach, default, or violation had been committed
or suffered by Tenant directly.
3. Tenant shall indemnify, defend and hold Landlord, its partners,
directors and/or officers and their affiliates and/or subsidiaries harmless from
and against any claims, liability, losses, or expenses (including, without
limitation, attorneys' fees, court costs and disbursements incurred by Landlord
during settlement, at trial, or on appeal) in connection with any claim for
commission and/or fees by any broker or agent in connection with the Sublease
and/or any of the transactions provided for therein.
4. Tenant acknowledges and agrees that it has executed and delivered a
consent letter to and with Subtenant in connection with the Secondary Sublease,
which consent letter contains provisions and agreements corresponding to those
contained in Paragraphs 2 and 3 above, but referring to the Sublease, the
Secondary Sublease and Undertenant rather than the Lease, the Sublease and
Subtenant. In the event of a breach of either of such provisions, Tenant shall
enforce the same at Tenant's sole expense diligently and in good faith against
Subtenant or, if Tenant shall so elect in its sole discretion, permit Landlord
to enforce the same at Landlord's sole expense diligently and in good faith
against Subtenant (which enforcement, if required, may be pursued by Landlord in
the name and on behalf of Tenant).
5. Tenant shall hold any and all payments received under the Sublease as a
trust fund, to be applied first to the satisfaction of all of Tenant's
obligations under the Lease before using any part thereof for any other purpose.
6. Tenant hereby delegates to Subtenant and relinquishes for itself, for
so long as the Sublease shall be in full force and effect, the authority to make
requests or demands upon Landlord for, or in connection with, the providing of
those services that are both:
(a) required or permitted to be provided by Landlord to Tenant
and/or the Premises pursuant to the Lease (including, without limitation,
those services described in Sections 3.1, 3.4, 5.5, 12.1 and 12.2 thereof
and/or Exhibits F, K and N thereto); and
(b) required or permitted to be provided by Tenant to Subtenant
and/or the Premises pursuant to the Sublease,
as well as to enforce the aforesaid provisions of the Lease (and only such
provisions of the Lease) against Landlord in the event of a breach of the same.
Landlord hereby consents to such delegation, as well as to Subtenant's further
delegation of such authority to Undertenant and relinquishment of the same for
itself, for so long as the Secondary Sublease shall be in full force and effect,
pursuant to the provisions of the Secondary Sublease. Landlord's recognition of,
and compliance with, the foregoing delegations of authority shall not be deemed
or construed to create any privity between Landlord and Subtenant and/or between
Landlord and Undertenant, other than strictly for purposes of the implementation
and/or enforcement of the foregoing provisions of, and/or the foregoing exhibits
to, the Lease, nor shall the same impair the Lease in any manner or respect
and/or affect any of the rights of Landlord, or any of the obligations of
Tenant, thereunder.
7. At the expiration or sooner termination of the Lease, neither Tenant
nor any person or entity claiming by, through, or under Tenant shall have any
obligation to remove any alterations theretofore made to the Premises
(including, without limitation, the Initial Alterations), regardless of whether
made by Tenant, Subtenant or Undertenant, or to restore the Premises with
respect thereto.
Kindly sign this letter below to confirm your agreement to the foregoing terms,
covenants and conditions.
Landlord hereby agrees that, notwithstanding any provision in the Lease to
the contrary, the Premises shall be entitled to receive and use "Tenant's
Proportionate Share" (as such term is defined in the Lease) of the heating, air
conditioning and ventilation capacity of the Building. Landlord hereby further
agrees that the provisions of Section 11.4 of the Lease have become inapplicable
pursuant to subsection (c) thereof, and neither Tenant nor any person or entity
claiming by, through, of under Tenant shall have any obligation to observe or
comply with such provisions.
This letter many be signed in counterpart originals, all of which, when
taken together, shall constitute but one document. This letter may also be
signed by fax transmission.
Very truly yours,
NEW VALLEY CORPORATION
By: /s/ BENNETT BURKE
-----------------------------
Name: Bennett Burke
Title: ASST SECRETARY
AGREEMENTS, REPRESENTATIONS AND WARRANTIES CONFIRMED:
PREDIX PHARMACEUTICALS HOLDINGS, INC.
By: /s/ CHEN SCHOR
---------------
Name: Chen Schor
Title: SVP
THIRD AMENDMENT TO LEASE AGREEMENT
AMENDMENT dated October 14, 2004, by and between NEW VALLEY CORPORATION, a
Delaware corporation having an office at 712 Fifth Avenue, New York, New York
10019 (herein called "LANDLORD") and PREDIX PHARMACEUTICALS HOLDINGS, INC., a
Delaware corporation having an office at 10K Gill Street, Woburn, Massachusetts
01801 (herein called "TENANT").
STATEMENT OF FACTS
By lease agreement (herein called the "LEASE AGREEMENT") dated
December 21, 2000, by and between 150 College Road, LLC (herein called
"ORIGINAL LANDLORD"), as landlord, and Physiome Sciences, Inc. (herein
called "ORIGINAL TENANT"), as tenant, Original Landlord leased to Original
Tenant the entire third (3rd) floor (the "Premises") of the building known
as 150 College Road West, Plainsboro Township (Middlesex County), New
Jersey. The Lease Agreement has heretofore been supplemented by a
Commencement Date Agreement dated July 18, 2001 and amended by a First
Amendment to Lease Agreement dated January 7, 2002, each by and between
Original Landlord and Original Tenant. The Lease Agreement has also been
amended by a Second Amendment to Lease Agreement (herein called the
"SECOND AMENDMENT") dated December 31, 2003, by and between Landlord and
Tenant. The Lease Agreement, as so supplemented and amended, is herein
sometimes called the "LEASE".
Landlord is the successor to Original Landlord under the Lease, and
Tenant is the successor to Original Tenant under the Lease.
The parties now desire to further amend the Lease as hereinafter set
forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree as
follows:
1. Section 2.4 of the Lease Agreement, as heretofore amended by Paragraph
1 of the Second Amendment, is hereby further amended to provide that, effective
from and after the date hereof, the security deposit provided for therein shall
reduced in amount by fifty (50%) percent, from Nine Hundred Nine Thousand and
82/100 ($909,000.82) Dollars (herein called the "SECURITY AMOUNT") to Four
Hundred Fifty-Four Thousand Five Hundred and 41/100 ($454,500.41) Dollars
(hereinafter called the "NEW SECURITY AMOUNT"), and the New Security Amount
shall be and remain the amount of the security deposit required to be maintained
by Tenant throughout the balance of the term of the Lease. Landlord shall
cooperate with Tenant in all reasonable respects in order to permit Tenant to
reduce the principal amount of the letter of credit now held by Landlord as the
security deposit under the lease from the Security Amount to the New Security
Amount (including, without limitation, promptly signing and returning to Tenant
a letter to the issuer of the letter of credit authorizing such reduction in the
same), PROVIDED, HOWEVER, that any substitute letter of credit shall be issued
by the same, or a reasonably
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comparable, issuer as the current letter of credit and shall be in the same, or
substantially the same, form as the current letter of credit.
2. Except as specifically set forth above, the Lease shall be and remain
unmodified, in full force and effect and binding upon Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have each caused this Amendment to
be duly executed and delivered as of the date and year first hereinabove set
forth.
NEW VALLEY CORPORATION
By: /s/ BENNETT BURKE
---------------------------
Name: Bennett Burke
Title: ASST SECRETARY
PREDIX PHARMACEUTICALS HOLDINGS, INC.
By: /s/ CHEN SCHOR
---------------------------------
Name: Chen Schor
Title: SVP
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