EXHIBIT 10.11
THIS LEASE is made this 15th day of August, 1996, between COLLEGE ROAD
ASSOCIATES, LIMITED PARTNERSHIP, having an office at 2 Research Way, Princeton
NJ 08540, hereinafter called "Landlord", and Sarnoff Real Time Corporation with
an office located at 301 College Road East, Princeton, New Jersey 08540,
hereinafter called "Tenant".
LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord,
subject to all of the terms and conditions hereinafter set forth, those certain
premises (the "Premises") as set forth in Items 1 of the Basic Lease Provisions
and as shown in the drawings attached hereto as Exhibit "A" being located on the
floor indicated in that certain office building (the "Building") and on that
certain lot (the "Parcel") together hereinafter referred to as (the "Project")
being located at 301 College Road East, Township of Plainsboro, County of
Middlesex, State of New Jersey.
BASIC LEASE PROVISIONS
1. Location of Premises: 301 College Road East
Princeton, NJ 08540
2. Rentable Area of Premises: 22,598 rentable square feet
3. Tenant's Percentage Share: 42.16% (22,598/53,605)
4. Base Project Operating Expenses: Those incurred in the year 1997
5. Base Project Property Taxes: Those incurred in the year 1997
6. Basic Annual Rent: $463,259.00 per annum
7. Basic Monthly Rental Installments: $38,604.92 per month
8. Term: Five (5) years
9. Target Commencement Date: November 1, 1996
10. Security Deposit: Letter of Credit in the amount
of $500,000.00 (see Paragraph 4)
11. Parking Spaces: Ninety (90) - including ten (10)
visitors' spaces
12. Broker(s): Commercial Property Network, Inc.
13. Permitted Use: General Office and R&D Laboratory
- including electronic assembly
14. Addresses for Notices:
LANDLORD TENANT
College Road Associates, Sarnoff Real Time Corporation
Limited Partnership 301 College Road East
2 Research Way Princeton, NJ 08540
Princeton, NJ 08540
A copy of all notices to Landlord and/or Tenant shall also be sent to the
addresses above.
15. All payments under this Lease shall be payable and sent to:
College Road Associates
Lock Box P.O. 19503
Newark, NJ 07195-0503
or such other payee or address as Landlord may designate by written notice to
Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease, consisting
of the foregoing and Paragraphs 1 through 48 which follow, together with
Exhibits A through F, inclusive, incorporated herein by this reference as of the
date first above written.
College Road Associates,
Limited Partnership
By: Z Forrestal Center, L.P.,
Managing General Partner
By: Z Forrestal Corp.,
General Partner
By: /s/ John Zirinsky
-----------------
Name: John Zirinsky
Title: President
Sarnoff Real Time Corporation
By: /s/ Erick J. Frim
-----------------
Name: Erick J. Frim
Title: Vice President and CFO
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STATE OF NEW YORK:
:SS
COUNTY OF NEW YORK:
BE IT REMEMBERED, that on this 20th day, of August, 1996, before me, the
subscriber, a Notary Public of the State of New York, personally appeared John
Zirinsky, of Z Forrestal Corp., the General Partner of Z Forrestal Center, L.P.,
the General Partner of College Road Associates, Limited Partnership, who, I am
satisfied, is the person who has signed the within instrument, and he did
acknowledge that he signed, sealed and delivered the same as such officer
aforesaid; and that the within instrument is the voluntary act and deed of said
corporation made by virtue of authority from its Board of Directors.
/s/ Marc L. De Cecchis
----------------------------
Notary Public, New York
STATE OF
:SS
COUNTY OF:
BE IT REMEMBERED, that on this 15 day of August 1996, before me, the
subscriber, a Notary Public of the State of New Jersey, personally appeared
Erick Frimm Vice, president of SRTC who, I am satisfied, is the person who has
signed the within instrument, and he did acknowledge that he signed, sealed and
delivered the same as such officer aforesaid; and that the within instrument is
the voluntary act and deed of said corporation made by virtue of authority from
its Board of Directors.
/s/ Patricia Hoeler
-----------------------
Notary Public, New Jersey
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TABLE OF CONTENTS
PAGE
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1. COMMENCEMENT DATE AND TERM............................................. 1
2. BASIC ANNUAL RENT...................................................... 1
3. ADDITIONAL RENT........................................................ 2
4. SECURITY DEPOSIT....................................................... 5
5. REPAIRS................................................................ 6
6. IMPROVEMENTS AND ALTERATIONS........................................... 6
7. LIENS.................................................................. 8
8. USE OF PREMISES........................................................ 8
9. UTILITIES AND SERVICES.................................................10
10. RULES AND REGULATIONS..................................................12
11. TAXES AND TENANT'S PROPERTY............................................12
12. SUBSTITUTED PREMISES...................................................13
13. FIRE OR CASUALTY.......................................................14
14. EMINENT DOMAIN.........................................................14
15. ASSIGNMENT AND SUBLETTING..............................................15
16. LANDLORD'S ACCESS TO PREMISES..........................................17
17. SUBORDINATION, ATTORNMENT, ESTOPPEL CERTIFICATES.......................17
18. SALE BY LANDLORD.......................................................18
19. INDEMNIFICATION OF LANDLORD AND INSURANCE..............................18
20. WAIVER OF SUBROGATION..................................................20
21. NO WAIVER..............................................................20
22. DEFAULT................................................................21
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TABLE OF CONTENTS
(CONT'D)
PAGE
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23. RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT............................ 23
24. NOTICE................................................................ 23
25. INSOLVENCY OR BANKRUPTCY.............................................. 24
26. SURRENDER AND HOLDOVER................................................ 24
27. CONDITION OF PREMISES................................................. 24
28. QUIET POSSESSION...................................................... 25
29. LIMITATION OF LANDLORD'S LIABILITY.................................... 25
30. GOVERNING LAW......................................................... 25
31. COMMON FACILITIES..................................................... 26
32. SUCCESSORS AND ASSIGNS................................................ 26
33. BROKERS............................................................... 26
34. NAME.................................................................. 27
35. EXAMINATION OF LEASE.................................................. 27
36. ADDITIONAL CHARGES.................................................... 27
37. MARGINAL HEADINGS..................................................... 27
38. PRIOR AGREEMENTS; SEVERABILITY........................................ 28
39. PARKING............................................................... 28
40. AUTHORITY............................................................. 28
41. NO LIGHT, AIR OR VIEW EASEMENT........................................ 28
42. FORCE MAJEURE......................................................... 28
43. ATTORNMENT............................................................ 29
44. COMMON AREA MAINTENANCE COST.......................................... 29
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TABLE OF CONTENTS
(CONT'D)
PAGE
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45. NOTICE REGARDING TENANT'S MOVING IN OR OUT.................... 29
46. FIRST OPTION TO RENEW......................................... 30
47. SECOND OPTION TO RENEW........................................ 30
48. RIGHT OF FIRST REFUSAL ADDITIONAL SPACE....................... 30
Exhibit "A" Floor Plan(s)
Exhibit "B1" Landlord's Work Letter
Exhibit "B2" Building Standard Work Letter
Exhibit "C" Commencement Date Memorandum
Exhibit "D" Rules and Regulations
Exhibit "E" Janitorial Specifications
Exhibit "F" Letter of Credit
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PARAGRAPH 1
COMMENCEMENT DATE AND TERM
(A) The term of this Lease shall be as shown in Item 8 of the Basic
Lease Provisions and shall commence on the Target Commencement Date as shown in
Item 9 of the Basic Lease Provisions or such earlier date as Tenant takes
possession or commences use of the Premises for any purpose, and/or the issuance
of a Temporary Certificate of Occupancy (Landlord shall be responsible to obtain
such Temporary Certificate of Occupancy). Such date of commencement, hereinafter
the "Commencement Date", shall be confirmed by Landlord and Tenant by execution
of a "Commencement Date Memorandum" in a form substantially similar to Exhibit
"C". The Tenant may terminate this Lease and have no liability pursuant to this
Lease if the Commencement Date has not occurred within six (6) months of the
issuance of all applicable building permits associated with the construction of
the Premises, except if the reason the Commencement Date has not occurred is
Tenant's fault or has been caused by Force Majeure as defined in Paragraph 42.
If the Lease is so terminated, Landlord will refund to Tenant any sums Tenant
has paid to Landlord on account of this Lease.
(B) Notwithstanding the Commencement Date, if for any reason Landlord
cannot deliver possession of the Demised Premises to Tenant on said Commencement
Date, then Landlord shall not be subject to any liability therefor; nor shall
such failure affect the validity of this Lease or the obligations of Tenant
hereunder, provided that Tenant shall not be obligated to pay Rent (except a sum
equal to the first Basic Monthly Rental Installment) until possession of the
Premises is rendered to Tenant.
PARAGRAPH 2
BASIC ANNUAL RENT
(A) Tenant agrees to pay as Basic Annual Rent for the Premises the
initial sum shown in Item 6 of the Basic Lease Provisions. Except for months
when this Lease is not in effect for the full calendar month (partial month),
the Basic Annual Rent shall be payable in U.S. currency in equal monthly
installments, hereinafter sometimes referred to as "Basic Monthly Rental
Installments", in advance without notice, deduction, demand, offset, or
abatement. Basic Monthly Rental Installments shall be in the initial sum shown
in Item 7 of the Basic Lease Provisions. Payment of Basic Annual Rent shall
commence on the Commencement Date (except that the first month's rent shall be
due upon the signing of this Lease), and continue on the first day of each
calendar month thereafter except that Basic Rent for any partial month during
the term hereof shall be prorated in the proportion that the number of days this
lease is in effect during such partial month bears to the number of days in that
calendar month, and shall be paid at the commencement of such partial month, and
except further that the Basic Monthly Rental Installment for the first full
calendar month of this Lease for which an installment of Basic Annual Rent is
due will be paid on execution hereof.
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(B) In addition to the Basic Annual Rent stipulated herein, Tenant
covenants and agrees to pay Landlord without offset or deduction as additional
Rent, hereinafter "Additional Rent", all other sums and charges which are to be
paid by Tenant pursuant to the terms of this Lease. Except as otherwise provided
in this Lease, Additional Rent shall be due and payable on the first day of the
month following the date on which Tenant is given notice that Additional Rent is
due. Rent means Basic Annual Rent and Additional Rent.
PARAGRAPH 3
ADDITIONAL RENT
(A) For each calendar year during the term of this Lease, Tenant agrees
to pay as items of Additional Rent for the Premises, Tenant's "Percentage Share"
(being the percentage indicated in Item 3 of Basic Lease Provisions) of all
increases in "Project Operating Expenses" and "Project Property Taxes" (as
hereinafter defined) incurred by Landlord in the operation of the Building or
Project over the Base Project Operating Expenses and Base Project Property Taxes
as stipulated in Items 4 and 5 respectively in the Basic Lease Provisions.
(B) The items of Additional Rent contemplated under subparagraph 3(A)
shall be calculated in accordance with the following procedures:
(i) Each December (beginning December, 1997) during the term hereof
or as soon thereafter as practical, Landlord shall give Tenant written notice of
Landlord's estimate of any amounts payable under subparagraph 3(A) above for the
ensuing calendar year. On or before the first day of each month during the
ensuing calendar year, Tenant shall pay Landlord without further notice 1/12
(One-twelfth) of such estimated amounts, provided that if such notice is not
given in December, Tenant shall continue to pay on the basis of the then
applicable rental until the month after such notice is given. If at any time or
times it appears to Landlord that the adjusted amounts payable under
subparagraph 3(A) for the current calendar year will exceed its estimate,
Landlord may, by notice to Tenant, revise its estimate for such year. Subsequent
payments by Tenant for such year shall be based upon such revised estimate.
(ii) Within ninety (90) days after the close of each calendar year
or as soon thereafter as is practical, Landlord shall deliver to Tenant a
statement of the annual adjustment of those Additional Rent items made pursuant
to subparagraph 3(A) for such calendar year. If on the basis of such statement
Tenant owes an amount that is less than the estimated payments for such calendar
year previously made by Tenant, Landlord shall refund or credit such excess to
Tenant, within thirty (30) days from such determination. If on the basis of such
statement Tenant owes an amount that is more than the estimated payment for such
calendar year previously made by Tenant, Tenant shall pay the deficiency to
Landlord within thirty (30) days after delivery of the statement.
(iii) The Additional Rent due under the terms and conditions of this
Paragraph 3 shall survive termination of this Lease, shall be payable by Tenant
without any setoff or deduction, and shall be computed by Landlord on a prorated
basis for any period less than a full calendar year.
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(iv) Anything to the contrary contained in this Paragraph 3
notwithstanding, if the average occupancy of the Building is less than ninety-
five (95%) percent during the Base Year hereinafter defined, then Landlord shall
make a determination ("Landlord's Determination") of what the Project Operating
Expenses for such year would have been if during the entire year the average
tenant occupancy of the Building were ninety-five (95%) percent. Landlord's
Determination shall be binding and conclusive upon Tenant and shall for all
purposes of this Lease be deemed to be the Project Operating Expenses for the
Base Year. Landlord shall notify Tenant of Landlord's Determination within
ninety (90) days following the last day of the Base Year. Thereafter, if for any
subsequent Lease Year the average tenant occupancy of the Building is below
ninety-five (95%) percent, the Project Operating Expenses for any such year
shall be adjusted by Landlord to the amount that such Project Operating Expenses
would have been if the average tenant occupancy during that year had been
ninety-five (95%) percent. The term Base Year means the twelve (12) month period
during which Base Project Operating expenses are calculated.
(C) Definitions:
(i) The term "Project Operating Expenses" as used herein shall
include all costs of operation and maintenance of the Project for each calendar
year as determined by generally accepted accounting principles consistently
applied. Project Operating Expenses shall, by way of illustration but not
limitation, include water and sewer charges, insurance premiums, license,
permit, and inspection fees, fuel, heat, light, power (except for electricity
charged directly to the Premises and other rental space on the Project), steam,
janitorial and security services, labor, salaries, air conditioning, landscaping
maintenance and repair of the Building and driveways, parking structures and
surface parking areas, ice and snow removal, supplies, materials, equipment,
tools, property management fees, office costs, and the cost incurred in
contesting the validity of Project Property Taxes. Project Operating Expenses
shall also include but not be limited to the cost of any capital improvements
made to the Building by Landlord that reduce Project Operating Expenses or that
are required under any governmental law or regulation not previously applicable
to the Building or not in effect at the time it was constructed. Such capital
cost shall be amortized over such reasonable periods as Landlord shall determine
with a return on capital at the then current prime interest rate of the largest
national bank in New York City or at such higher rate as may have been paid by
Landlord on the funds borrowed for the purpose of purchasing such capital
improvements. In no event shall Project Operating Expenses ever be less than
Base Project Operating Expenses stipulated in Item 4 of Basic Lease Provisions.
(ii) The term "Project Property Taxes" as used herein shall include
all real estate taxes or personal property taxes and other taxes, charges and
assessments, unforeseen as well as foreseen, which are levied with respect to
the Project and any improvements, fixtures and equipment and other property of
Landlord, real or personal, located in the Building or on the Project and used
in connection with the operation of the Project for each calendar year and shall
include any tax, surcharge or assessment which shall be levied in addition to or
in lieu of real estate or personal property taxes, other than taxes covered in
Paragraph 11, and shall also include any rental, excise, sales, transaction,
privilege, or other tax or levy, however, denominated, imposed upon or measured
by the rental reserved hereunder or on Landlord's business of leasing the
Premises and Project,
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excepting only net income taxes. In no event shall Project Property Taxes ever
be less than Base Project Property taxes stipulated in Item 5 of Basic Lease
Provisions.
(D) Unless Tenant takes written exception to any item in the statement
referred to in subparagraph 3(B)(ii) within thirty (30) days after the
furnishing of the statement, such statement shall be considered as final and
accepted by Tenant. Any amount due Landlord as shown on any such statement shall
be paid by Tenant within thirty (30) days after it is furnished to Tenant. If
Tenant shall dispute in writing any specific item, or items in the statement of
Project Operating Expenses and Project Property Taxes, and such dispute is not
resolved between Landlord and Tenant within sixty (60) days after the date the
statement was rendered, either party may, during the thirty (30) days next
following the expiration of the sixty (60) days, refer such disputed item or
items to any independent certified public accountant mutually selected by
Landlord and Tenant, for a determination. Pending the determination of any
dispute with respect to the statement submitted by Landlord, Tenant shall pay
when due the sums shown as due on such statement. If it shall be determined that
any portion of such sums were not properly chargeable to Tenant, then Landlord
shall credit or refund the appropriate sum to Tenant. The costs for the
accountant's review and determination will be borne by Landlord if it is
determined that Landlord's original calculation of both Project Property Taxes
and Project Operating Expenses was in error by more than five (5%) percent,
otherwise such costs will be borne by Tenant.
(E) As one of the items of Additional Rent, payable monthly, Tenant shall
also pay to Landlord the full cost of Tenant's consumption of electricity,
except for heating and air conditioning as provided in subparagraph 9(A)(ii), as
determined in accordance with Paragraph 9.
(F) The Basic Annual Rent plus Additional Rent are sometimes collectively
referred to as "Rent".
(G) Notwithstanding anything to the contrary in the definition of Project
Operating Expenses, such expenses shall not include the following:
a. Repairs or other work occasioned by the exercise of right of
eminent domain;
b. Leasing commissions, attorneys' fees, costs and disbursements and
other expenses, all of which are incurred in connection with negotiations or
disputes with, other tenants, other occupants or prospective tenants;
c. Renovating or otherwise improving or decorating, painting or
redecorating leased space for tenants or other occupants of vacant tenant space,
other than ordinary maintenance provided to all tenants, except in all common
areas;
d. Landlord's costs of electricity and other services sold
separately to tenants for which Landlord is entitled to be reimbursed by such
tenants as an additional charge over and above the base rent and operating
expense or other rental adjustments payable under the lease with such tenant and
domestic water sub-metered and separately billed to tenants of any retail area;
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e. Depreciation and amortization except depreciation for Capital
Expenditures which reduce operating costs;
f. Expenses in connection with services or other benefits of a type
which Tenant is not entitled to receive under the Lease but which are provided
to another tenant or occupant;
g. Costs incurred due to violation by Landlord or any other tenant of
the terms and conditions of any other lease:
h. Overhead and profit paid to subsidiaries or affiliates of Landlord
services on or within Project, to the extent only that the costs of such
services exceed competitive costs of such service were they not so rendered by a
subsidiary or affiliate: provided, however, that the property management fee
charged by an affiliate of Landlord shall not be in excess of the rates then
customarily charged for building management for buildings of like class and
character;
i. Interest on debt or amortization payments on any mortgage or
mortgages and rendered under any ground or underlying leases or lease;
j. Any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord:
k. Any particular items and services for which Tenant otherwise
reimburses Landlord by direct payment over and above base rent and operating
expense adjustments:
l. Advertising and promotional expenditures:
m. Any costs, fines or penalties incurred due to violation by
Landlord of any governmental rule or authority.
n. Any expense for which Landlord is compensated through proceeds or
insurance: and
o. Costs of a capital nature, including-, but not limited to, capital
improvements, capital repairs, capital equipment and capital tools which, under
general accepted accounting principles, are not regarded as operating or
maintenance expenses.
PARAGRAPH 4
SECURITY DEPOSIT
As set forth in Item 10 of the Basic Lease Provisions, Tenant shall post an
Irrevocable Letter of Credit in the form of Exhibit F in the amount of
$500,000.00. This Irrevocable Letter of Credit must be renewed sixty (60) days
prior to its expiration date for each year of this Lease. In no instance shall
the amount of such Irrevocable Letter of Credit be considered a measure of
liquidated damages. If Tenant defaults with respect to any provision of this
Lease, including but not limited to, the provisions relating to the payment of
Rent or the surrender of the Premises in accordance with
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the terms hereof upon the termination of the Lease, Landlord may, but shall not
be required to use, apply or retain all or any part of the proceeds of this
Irrevocable Letter of Credit for the payment of any Rent or any other sum in
default, or for the payment of any other amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default including, without limitation, costs and attorneys' fees
incurred by Landlord. If any portion of said Irrevocable Letter of Credit is so
used or applied, Tenant shall, upon demand therefor, post an additional
Irrevocable Letter of Credit with Landlord in an amount that $500,000.00 exceeds
that portion of the Irrevocable Letter of Credit drawn on by Landlord that is
used for the payment of any other amount which Landlord may spend or become
obligated to spend by reason of Tenant's default or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason of Tenant's default
including, without limitation, costs and attorneys' fees incurred by Landlord.
In the event of bankruptcy or other debtor-creditor proceeding against Tenant,
such Irrevocable Letter of Credit shall be deemed to have been applied first to
the payment of Rent and other charges due Landlord for all periods prior to
filing of such proceedings.
PARAGRAPH 5
REPAIRS
(A) Subject to Paragraph 5(B), Landlord shall cause all necessary
repairs to be made TO the structure exterior doors, windows, corridors and other
common areas of the Building and the Project and Landlord shall cause the
Building and the Project to be kept in a safe, clean and neat condition and
shall use reasonable efforts to keep all equipment used in common with other
tenants (such as elevators, plumbing, heating, air conditioning and similar
equipment) in good condition and repair. Except as provided in Paragraph 13
hereof, there shall be no abatement of Rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any portion of the
Building or the Project or in or to fixtures, appurtenances and equipment
therein or thereon.
(B) Tenant agrees that all repairs to the Premises not required above to
be made by Landlord and all decorating, remodeling, alteration and painting
required by Tenant during the term of this Lease, if approved by Landlord, shall
be made by Landlord at the sole cost and expense of Tenant. Tenant shall have
the freedom to perform its own interior decorating of the Premises provided that
no permits are required for same. Tenant will pay for any; repairs to the
Premises, the Building or the Project made necessary by any negligence or
willful acts or omissions of Tenant or its assignees, subtenants, employees or
their respective agents or other persons permitted in the Building or on the
Project by Tenant, or any of them, and Tenant will maintain the Premises, and,
upon termination of this Lease, will leave the Premises in a safe, clean, neat
and sanitary condition, normal wear and tear excepted.
PARAGRAPH 6
IMPROVEMENTS AND ALTERATIONS
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(A) Landlord's sole construction obligation under this Lease is as set
forth in the Work Letter attached hereto as Exhibit "B-1" and incorporated
herein by reference.
(B) Landlord shall have the right at any time to change the arrangement
and/or location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets, or other public parts of the Building or Project,
and upon giving Tenant reasonable notice thereof, to change the name, number or
designation by which the Building or the Project is commonly known, provided
such change(s) shall not inhibit Tenant's use within the Premises.
(C) The alterations, additions or improvements to or of the Premises or
any part thereof referred to in this subparagraph-(6)(C) do not include the
initial tenant -improvements. Tenant shall not make or cause to be made any
alterations, additions or improvements to or of the Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's prior written consent. Any such alterations, additions or
improvements to the Premises consented to by Landlord shall at Landlord's option
be made by Landlord for Tenant's account and Tenant shall pay Landlord for the
costs thereof (including reasonable charge for Landlord's overhead) within ten
(10) days after receipt of Landlord's statement. All such alterations, additions
and improvements shall (without compensation to Tenant) at Landlord's option
become Landlord's property (except movable furniture and trade fixtures
including computer, telephone, and-power conditioning equipment which have not
been permanently fastened to the walls, floors or ceilings or made part of the
existing Building's systems) and at the end of the term hereof, shall remain on
the Premises unless Landlord elects by notice to Tenant to have Tenant remove
same, in which event Tenant shall promptly restore the Premises to their
condition prior to the installation of (i) such alterations, additions and
improvements, and (ii) equipment of any nature. Further, Landlord may elect by
notice to Tenant to have Tenant remove not only Tenant's alterations, additions
and improvements, but also any items of Tenant's equipment including but not
limited to movable furniture, trade fixtures, office equipment and any cafeteria
equipment. Any such equipment not removed from the Premises at the end of the
term hereof shall at the option of the Landlord become Landlord's property
without payment of any consideration therefor. The removal of any such equipment
and any alterations, additions and improvements which Landlord elects Tenant to
remove will be accomplished by Tenant prior to the expiration of the term of
this Lease and if not done, Tenant will be deemed a tenant at sufferance
pursuant to Paragraph 26. If Tenant does not perform such removal, Landlord may
remove, destroy, store or otherwise dispose of such alterations, additions,
improvements and equipment, whether or not Landlord takes title thereto. In
addition, Tenant will pay (i) all Landlord's costs of removing, disposing or
destroying any such alterations, additions, improvements and equipment whether
or not Landlord takes title thereto, that Tenant is supposed to remove, which
Tenant does not remove, and (ii) 'Landlord's cost to restore the Premises to
their condition prior to the installation of any alterations, additions,
improvements and equipment of any nature referred to in subdivision (i) of this
sentence. Such costs will include Landlord's fees and expenses in collecting
such costs and interest on such costs at the rate of fourteen (14%) percent per
annum. Tenant will pay to Landlord Landlord's costs of storage of any equipment
which Tenant is supposed to remove pursuant to this paragraph that Tenant does
not remove. Further, Landlord reserves and shall have right of access to the
Premises at any time with prior notice within ninety (90) days prior to any
projected termination of this Lease to inspect the Premises to determine
alterations, additions, improvements and
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equipment Landlord desires Tenant to remove. This right of access is in addition
to Landlord's right of access set forth in Paragraph 16 hereof.
PARAGRAPH 7
LIENS
Tenant shall keep the Premises free from any liens arising out of any work
performed, materials furnished, or obligations incurred by or for Tenant. In
the event that Tenant shall not, within thirty (30) days following the
imposition of any such lien, cause the same to be released of record by payment
or posting of a proper bond, Landlord shall have, in addition to all other
remedies provided herein or by law, the right but not the obligation, to cause
the same to be released by such means as it shall deem proper, including payment
of or defense against the claim giving rise to such lien. All sums paid by
Landlord and all expenses incurred by it in connection therewith, shall create
automatically an obligation of Tenant to pay an equivalent amount as Additional
Rent, which Additional Rent shall be payable by Tenant on Landlord's demand with
interest at the maximum rate per annum permitted by law until paid. For
purposes of this Paragraph 7, "liens" shall include, but not be limited to, lien
claims filed under the "Construction Lien Law".
PARAGRAPH 8
USE OF PREMISES
Tenant shall use the Premises only as set forth in Item 13 of the Basic
Lease Provisions and shall not use or permit the Premises to be used for any
other purpose without the prior written consent of Landlord. Landlord covenants
that the uses of the Premises stated in Item 13 of the Basic Lease Provisions
will be uses permitted by the zoning- ordinance of the Township of Plainsboro on
the Commencement Date of the Lease. Tenant shall comply with all laws and
covenants and restrictions of record affecting use of the Premises, and shall
not use or occupy the Premises in violation of law or of the certificate of
occupancy issued for the Building, and shall immediately discontinue any use of
the Premises which is declared by any governmental authority having jurisdiction
to be a violation of law or of said certificate of occupancy. Tenant shall
comply with any direction of any governmental authority having jurisdiction
which shall, by reason of the nature of Tenant's use or occupancy of the
Premises impose any duty upon Tenant or Landlord with respect to the Premises or
with respect to the use or occupancy thereof. Tenant shall not do or permit to
be done anything which will invalidate or increase the cost of any fire,
extended coverage or any other insurance policy covering the Building, the
Project and/or property located therein and shall comply with all rules, orders,
regulations and requirements of the appropriate fire rating bureau or any other
organization performing a similar function. Tenant shall upon demand reimburse
Landlord for the full amount of any additional premium charged for such policy
by reason of Tenant's failure to comply with the provisions of this paragraph.
Such reimbursement shall not be Landlord's exclusive remedy. Tenant shall not
in any way obstruct or interfere with the rights of other tenants or occupants
of the Building or the Project or injure or annoy them, or use or allow the
Premises to be used for any improper, immoral, unlawful, or objectionable
purpose, nor shall Tenant cause,
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maintain, or permit any nuisance in, on, or about the Premises. Tenant shall not
commit or suffer to be committed any waste in or upon the Premises.
Upon the expiration, or early termination of the Term of this Lease or the
permanent assignment of this Lease, or subletting of the Premises, or cessation
or transferring of Tenant's operations at the Premises, or upon any action or
non-action of Landlord including a sale of the Building in which the Premises
are located, Tenant, if its operations are subject to the Environmental Clean-up
Laws hereinafter defined, shall comply, at Tenant's own expense, except as
hereinafter stated, and with diligence, with the Industrial Site Recovery Act,
1993 N.J. Law's Chapter 139, the regulations promulgated thereunder and any
successor legislation and regulations(collectively "Environmental Clean-up
Laws"). Tenant, if its operations are subject to the Environmental Clean-up
Laws shall, at Tenant's own expense, except as hereinafter stated, make prompt
submissions to, provide all information to and comply with all requirements of
the Industrial Site Evaluation Element ("ISEE") or its successor of the New
Jersey Department of Environmental Protection or its successor ("NJDEP") arising
out of the expiration, termination, assignment, subletting or transferring of
Tenant's operation at the Premises or arising out of any action or non-action of
the Landlord including the sale of the Building in which the Premises are
located. If Landlord's actions or non-actions including a sale of the Building
in which the Premises are located necessitate compliance with Environmental
Clean-up Laws, Landlord, at its expense, will make the submissions to NJDEP or
any of its elements in order to obtain a statement of non-applicability or
negative declaration, but Tenant whether or not it is subject to Environmental
Clean-up Laws, will cooperate with Landlord to aid in the making of Landlord's
submission by providing information and signing such documents as are necessary
for Landlord to make its submission. Clean-up expenses or the making up of any
clean-up plan or remedial action work plan, or sampling plan or the taking of
any corrective action to comply with Environmental Clean-up Laws and expenses
therefore, will be borne by the party whose actions or failure to act
necessitated the clean-up.
Each party shall, within a reasonable time and receipt of same, furnish to
the other party true and complete copies of all documents, submissions,
correspondence and oral or written reports, directives, correspondence and oral
or written communications by ISEE to the recipient party. Each party shall also
promptly furnish to the other party true and complete copies of all sampling and
test results and reports obtained and prepared from samples and tests taken at
and around the Premises that is obtained by the party first obtaining the
results and reports.
Tenant shall immediately and diligently cause any and all Hazardous
Materials it, its agents, employees, invitees or licensees released in, onto or
under or disposed from the Premises during the Term of the Lease to be removed
in compliance with all applicable laws, rules, ordinances and regulations and
all conditions resulting therefrom to be remediated in compliance with all
applicable laws, rules, ordinances and regulations and the Premises restored to
their condition without said Hazardous Materials as quickly as possible.
Tenant shall indemnify, defend and save harmless Landlord from all fines,
suits, procedures, claims and actions of any kind arising out of or in any way
connected with any release or discharge of Hazardous Materials at the Premises
which occur during the term of the Lease as a result of the acts of Tenant, its
invitees or licensees; and from all fines, suits, procedures, claims and actions
of
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any kind arising out of Tenant's failure to provide all information to NJDEP
or the Landlord as appropriate make all submissions other than those Landlord is
required to make as provided herein, and take all actions required by the NJDEP
or any of its divisions.
Landlord hereby agrees to defend, indemnify and hold Tenant harmless from
and against any and all claims, lawsuits, liabilities, losses, damages and
expenses (including, but not limited to, reasonable attorneys' fees arising by
reason of any of the aforesaid or any action against the Landlord under this
indemnity) arising directly or indirectly from, out of or by reason of (i) any
spills or discharges of toxic or hazardous waste or substances at the Premises
or Project which occur prior to or during the term of this Lease caused by
Landlord, its employees, agents or invitees; or (ii) any pre-existing conditions
including underground tanks, which are the subject of federal, state or local
environmental laws.
Tenant's obligations and liabilities under this Paragraph shall continue so
long as Landlord remains responsible for any releases or discharges of Hazardous
Materials at the Premises which occur as a result of the acts of Tenant, its
invitees or licensees. Tenant's failure to abide by the terms of this Paragraph
shall be restrainable by injunction.
PARAGRAPH 9
UTILITIES AND SERVICES
(A) Provided that Tenant is not in default hereunder, Landlord agrees to
furnish or cause to be furnished to the Premises the following utilities and
services, subject to the conditions and standards set forth below:
(i) Intentionally Deleted.
(ii) From 8 A.M. to 6 P.M., Monday through Friday (legal holidays
excepted), Landlord shall ventilate the Premises and furnish heat or air
conditioning when in the judgement of the Landlord it is required for the
comfortable occupancy of the Premises during such days and hours, subject to any
governmental requirements or standards relating to, among other things, energy
conservation. Upon request and reasonable notice, Landlord shall make available
at Tenant's expense after-hours heat or air conditioning. The cost thereof shall
be $40.00 per hour.
(iii) Landlord shall furnish to the Premises at all times, subject to
interruptions beyond Landlord's control and subject to subparagraph 3(E),
electric current in accordance with the Building Standard office lighting and
receptacle, or as otherwise shown on Exhibit "A". At no time shall Tenant's use
of electric current exceed the capacity of the feeders to the Building or the
risers or wiring installation existing in the Building at the Commencement Date
of this Lease (which shall provide ample capacity for Tenant's required use as
per Exhibit "A" of this Lease).
(iv) Landlord shall furnish the Building with water for drinking and
lavatory purposes only.
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(v) Landlord shall provide janitorial services to the Premises,
comparable to such services provided in other first class office buildings in
the vicinity, provided that the said other office buildings are used exclusively
as offices, and provided further that the Premises are kept in good order by
Tenant. Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish to the extent that the same exceeds the refuse and rubbish
usually attendant upon the use of the Premises as offices. Tenant is responsible
for the cleaning of Tenant's laboratory area(s), except that Landlord shall
remove Tenant's trash (including recyclables) to the extent that such trash in
the laboratory area(s) does not exceed the amount usually attendant upon the use
of the Premises as offices.
(vi) Landlord shall replace, as necessary, the fluorescent tubes in
the standard lighting fixtures installed by Landlord. Tenant agrees to reimburse
Landlord upon demand for the cost of such fluorescent tubes and ballast and the
labor and overhead for their installation. Initial installation of fixtures will
be warranteed for one year for lamps and ballast.
(B) Landlord may impose a reasonable charge for any utilities and services,
including without limitation, air conditioning, electric current (except for
electricity paid under subparagraph (E) Paragraph 3 and water), provided by
Landlord by reason of any use of the Premises at any time other than the hours
of 8 A.M. to 6 P.M. Monday through Friday (excluding legal holidays) or any use
beyond that which Landlord agrees to furnish as described above. The following-
clauses (i) through (iv) apply to electrical consumption, electric energy and
the public utility rate schedule for the supply of electric current to the
Building.
(i) All electric consumption for the sole use of the Tenant shall be
separately sub-metered.
(ii) Landlord shall not be liable in any way to Tenant for any failure
or defect in the supply or character of electric energy furnished to the
Premises by reason of any requirement, act or omission of the public utility
serving the Building with electricity or for any other reason not attributable
to Landlord.
(iii) Tenant's use of electric energy in the Premises shall not at any
time exceed the capacity of any of the electrical conductors and equipment
serving the Premises existing at the Commencement Date of this Lease (which
shall provide ample capacity for Tenant's required use as per Exhibit "A" of
this Lease). In order to insure that such capacity is not exceeded and to avert
possible adverse effect upon the Building's electric service, Tenant shall not,
without Landlord's prior written consent in each instance (which shall not be
unreasonably withheld), connect any additional fixtures, appliances or equipment
to the Building's electric distribution system or make any alteration or
addition to the electric system of the Premises existing on the Commencement
Date. Should Landlord grant such consent, all additional risers or other
equipment required therefor shall be provided by Landlord and the cost thereof
shall be paid by Tenant upon Landlord's demand.
(iv) If the public utility rate schedule for the supply of electric
current to the Building shall be increased during the term of this Lease, the
Additional Rent payable pursuant to Paragraph 3 hereof shall be equitably
adjusted to reflect the resulting increase in Landlord's cost of
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furnishing electric service to the Premises. It is the intention -hereof that
Landlord only recapture the charges payable by Tenant under Paragraph 3 and
under no circumstances shall Landlord earn any profit thereof.
(C) Tenant agrees to cooperate fully at all times with Landlord and to
abide by all regulations and requirements which Landlord may prescribe for the
use of the above utilities and services. Any failure to pay any costs as
described above shall constitute a breach of the obligation to pay Rent under
this Lease and shall entitle Landlord to rights herein granted for such breach.
(D) Landlord shall not be liable for, and Tenant shall not be entitled
to, any abatement or reduction of Rent by reason of Landlord's failure to
furnish any of the foregoing services, nor shall any such failure, stoppage or
interruption of any such service be construed either as an eviction of Tenant,
or relieve Tenant from the obligation to perform any covenant or agreement.
However, in the event of any failure, stoppage or interruption thereof, Landlord
shall use reasonable diligence to have service resumed promptly.
(E) Notwithstanding anything hereinafter to the contrary, Landlord
reserves the right from time to time to make reasonable modifications to the
above provisions for utilities and services.
PARAGRAPH 10
RULES AND REGULATIONS
Tenant agrees to abide by all rules and regulations of the Buildings and
Project ("Rules and Regulations") imposed by the Landlord as set forth in
Exhibit "D" attached hereto, as the same may be changed from time to time upon
reasonable notice to Tenant. These Rules and Regulations which shall be
uniformly enforced among- all tenants are imposed for the cleanliness, good
appearance, proper maintenance, good order and reasonable use of the Premises
and the Project, as may be necessary for the enjoyment of the Project by all
tenants and their employees and invitees. Landlord shall not be liable for the
failure of any tenant, its agents or employees to conform to the Rules and
Regulations.
PARAGRAPH 11
TAXES AND TENANT'S PROPERTY
(A) Tenant shall be liable for and shall pay not later than ten (10) days
before delinquency, all taxes, levies and assessments levied against any
personal property or trade fixtures placed by Tenant in or about the Premises.
If any such taxes, levies and assessments on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or if the assessed
value of the Building or the Project is increased by the inclusion therein of a
value placed upon such personal property or trade fixtures of Tenant and if
Landlord pays the taxes, levies and assessments, Tenant shall, upon demand,
repay to Landlord the taxes, levies and assessments so levied against Landlord,
or the proportion of such taxes, levies and assessments resulting from such
increase in the assessment.
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(B) If Tenant improvements in the Premises, whether installed and/or paid
for by Landlord or Tenant and whether or not affixed to the real property so as
to become as part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which Tenant improvements conforming to
"Building Standard" (as referred to in Exhibit "B-2") are assessed, then the
real property taxes and assessments levied against Landlord or the Project by
reason of such excess, assessed valuation shall be deemed to be taxes levied
against personal property of Tenant and shall be governed by the provisions of
subparagraph 11(A). If the records of the Tax Assessor are available and
sufficiently detailed to serve as a basis for determining whether said Tenant
improvements are assessed at a higher valuation than Building Standard, such
records shall be binding on both Landlord and Tenant; otherwise the actual cost
of construction shall be the basis for such determination.
PARAGRAPH 12
SUBSTITUTED PREMISES
Landlord reserves the right without Tenant's consent on sixty (60) days'
written notice to Tenant, to substitute other premises located within the
Buildings controlled by Landlord in College Park at Forrestal Center for the
Premises described above, provided, that the substituted premises:
(i) contain at least the same contiguous square footage as the
Premises;
(ii) contain comparable tenant improvements including "Lab Area" with
the same square footage including a separate contiguous portion that has raised
computer flooring. This Lab Area must have separate climate control that has 24
hour operation and a minimum clearance of ten (10) feet. Two large conference
rooms fit-up within a similar configuration in the current floor plan including
the separate kitchen. These conference rooms must be fit-up in a similar lay-out
and fashion with similar quality materials. The "Executive Area" must be fit-up
in a similar configuration including window space. The New Premises must include
two entrances (1) a main entrance of the new premises must have with equal
visibility as the main entrance to the Premises; and (2) a separate, double door
entrance with the same clearance as the Premises double door access. In the
event that the space is not on the first floor, then the building will provide
for a freight elevator under the Tenant's control. The remaining fit-up shall
contain the same number of offices and open work space for cubicles. Security
system will be comparable to the security system installed at the Premises (if
one is installed) Tenant shall have 24 hour, 7 day per week access to the
replacement facility; and
(iii) are made available to Tenant at the then current rental rate for
such space, in no event to exceed the rental rate specified herein.
Landlord shall pay all moving expenses of Tenant incidental to such
substitution of premises including, but not limited to, the cost of moving all
of the Tenant's furniture, fixtures, and electronic equipment (method of moving
electronic equipment to be determined by the Tenant), the cost of new stationery
and relocation announcements, the cost of new signage, and the cost of redundant
operations during the moving process, if necessary.
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PARAGRAPH 13
FIRE OR CASUALTY
In the event that the Project (regardless of whether the Premises or access
thereto is affected) is so damaged or destroyed to the extent of more than one-
third of its replacement cost, or to any substantial extent by a casualty not
covered by Landlord's insurance, or during the last two (2) years of this Lease,
Landlord, upon giving thirty (30) days' notice to Tenant, may elect to terminate
this Lease. If the damage or destruction is other than as provided above, then
Landlord shall commence within ninety (90) days after such damage or destruction
to rebuild, repair or restore the Premises and access thereto to substantially
the same condition as when the same were delivered to Tenant, excluding the
improvements owned by Tenant, and the Lease shall continue in full force and
effect.
Landlord shall in no event be obligated to make any repairs or replacements
of any items owned by Tenant. If the Lease is not terminated but the Premises
are rendered totally untenantable, Rent shall abate during the period of such
untenantability. Tenant acknowledges (i) that Landlord shall not obtain
insurance of any kind on Tenant's improvements and betterment to the Premises
owned by Tenant or on Tenant's furniture, fixtures, equipment and other personal
property, (ii) that it is Tenant's obligation to obtain such insurance at
Tenant's sole cost and expense, and (iii) that Landlord not be obligated to
repair any damage thereto or replace the same.
PARAGRAPH 14
EMINENT DOMAIN
In case the whole of the Premises, or such part thereof as shall
substantially interfere with Tenant's use and occupancy thereof, shall be taken
by any lawful power or authority by exercise of the power of eminent domain,
Tenant or Landlord may terminate this Lease effective as of the date possession
is required to be surrendered to said authority. In the event of any taking (in
whole or part) of the Project whether or not the Premises or access thereto are
affected thereby, Landlord shall have the right to terminate this Lease. Except
as provided herein, Tenant shall not, because of any taking, assert any claim
against Landlord or the taking authority for any compensation because of such
taking, and Landlord shall be entitled to receive the entire amount of any award
without deduction for any estate or interest of Tenant. In the event the amount
of property or the type of estate taken shall not substantially interfere with
Tenant's use of the Premises, and Landlord does not terminate this Lease,
Landlord shall proceed to restore the Premises (to the extent permitted by the
taking) to substantially their condition prior to such partial taking, and a
proportionate allowance shall be made to Tenant for Rent corresponding to the
time during which, and to the part of the Premises of which, Tenant shall be so
deprived on account of such taking and restoration. Provided same shall not
diminish Landlord's award in any way, nothing contained in this Paragraph 14
shall prevent Tenant from seeking any award against the taking authority for the
taking of personal property and fixtures owned by Tenant or for relocation
expenses recoverable from the taking authority. In no event shall Landlord be
required to expend more for restoration than received from the taking authority
for such taking. For the purposes of this paragraph, "taking" shall also
include any conveyance in lieu of condemnation.
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PARAGRAPH 15
ASSIGNMENT AND SUBLETTING
(A) Tenant shall not voluntarily or involuntarily assign, sublet, mortgage,
or otherwise encumber all or any portion of its interest in this Lease or in the
Premises without obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld. Such attempted subletting, mortgage or other
encumbrance without such consent shall be null and void and of no effect. It is
recognized that with respect to any proposed sublet or assignment that Landlord
may withhold its consent in its absolute discretion, and Landlord will not be
unreasonable in withholding its consent in the instances where (i) the Rent per
month is less than ninety percent (90%) of the then prevailing fair market rent
for comparable space within Princeton Forrestal Center, (ii) the credit-
worthiness of the proposed sublessee or assignee is not to the Landlord's
satisfaction (unless Tenant produces security satisfactory to Landlord), (iii)
the proposed sublessee's or assignee's use is not in accordance with other
tenants' uses within College Park at Princeton Forrestal Center.
(B) No assignment, subletting, mortgage or other encumbrance of Tenant's
interest in this Lease shall relieve Tenant of its obligation to pay the Rent
and to perform all of the other obligations to be performed by Tenant hereunder.
The acceptance of Rent by Landlord from any other person shall not be deemed to
be a waiver by Landlord of any provision of this Lease or be a consent to any
subletting, assignment, mortgage or other encumbrance. Consent to one sublease,
assignment, mortgage or other encumbrance shall not be deemed to constitute
consent to any subsequent attempted subletting, assignment, mortgage or other
encumbrance.
(C) If Tenant desires at any time to assign this Lease or to sublet the
Premises or any portion thereof, Tenant shall first notify Landlord of Tenant's
desire to do so and shall submit in writing to Landlord no less than thirty (30)
days prior to such assignment or subletting (i) the name of the proposed
subtenant or assignee; (ii) the premises; (iii) the term and provisions of the
proposed sublease or assignment and a copy of the proposed sublease or
assignment; and (iv) such financial information as Landlord may reasonably
request concerning the Proposed subtenant or assignee.
(D) At any time within thirty (30) days after Landlord's receipt of the
information specified in subparagraph (C) above, Landlord may by written notice
to Tenant, elect (i) to take from Tenant a sublease of the Premises or the
portion thereof proposed to be subleased by Tenant, or to take an assignment of
Tenant's leasehold estate hereunder, or such part thereof as shall be specified
in said notice, upon the same terms as those offered to the proposed subtenant
or assignee, as the case may be; (ii) to give Tenant written consent to the
proposed assignment or sublease, provided that the Rent payable monthly by the
Tenant to the Landlord under the terms of this Lease shall be increased by a sum
equal to all rental and other considerations received by Tenant from its
subtenant or assignee in excess of the Rent payable by Tenant under the terms of
this Lease; or (iii) to terminate this Lease as to the portion (including all)
of the Premises proposed to be subleased or assigned with a proportionate
abatement in the Rent payable hereunder. If Landlord does not exercise any
option set forth in this subparagraph (D) within said thirty (30) day period,
Landlord shall be deemed to have refused to consent to the proposed assignment
or sublease and this Lease shall remain in full force and effect.
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(E) If Tenant is a corporation, an unincorporated association or
partnership, the transfer, assignment or hypothecation of any stock or interest
in such corporation, association or partnership, in the aggregate in excess of
forty-nine (49%) percent, shall be deemed an assignment within the meaning and
provisions of this Paragraph, provided that the foregoing shall not apply, if
Tenant is not in default in the payment of Basic Annual Rent, Additional Rent or
any other amount due hereunder or in the performance of any covenant or
obligation to be performed by Tenant hereunder, with respect to (i) any pledge
of stock to an institutional lender, (ii) sales of stock pursuant to a Public
Offering, (iii) any sales of stock where (a) and (b) immediately following both
apply (a) the Seller is the Tenant, and (b) the buyer is paying in cash or in
property an amount which the Tenant reasonably certifies is fair market value
for the stock, and Tenant gives to Landlord reasonable written proof of the
facts in this clause (iii) at or before such date sales occur (iv) transfers of
stock not in a merger or consolidation transaction for prices current in the
market made while the Tenant's stock is publicly traded, (v) transfers of stock
in a merger or consolidation transaction which the surviving entity has a net
worth equal to the greater of $10,000,000.00 or the net worth of that entity
which is the Tenant immediately prior to the consummation of the merger or
consolidation transaction, and reasonable written proof of this net worth
requirement is given to Landlord immediately prior to this merger or
consolidation transaction and the surviving entity assumes all obligations
imposed by the Lease of that party to it who is the Tenant, including all
obligations with respect to giving a Letter of Credit to Landlord. "Affiliate"
shall mean with respect to an entity or natural person any other natural person
(who by himself or together with his spouse or children) or other entity that
controls, is controlled by or is under common control with such, entity or
natural person.
(F) Tenant shall reimburse Landlord for Landlord's reasonable costs and
attorneys' fees incurred in conjunction with the processing and documentation of
any such requested assignment, subletting, transfer, change in ownership or
hypothecation of this Lease or Tenant's interest in and to the Premises.
(G) Notwithstanding the provisions of this Paragraph to the contrary Tenant
may assign this Lease in connection with the sale of substantially all of
Tenant's asset-s or substantially all of its stock in a non-merger or a
consolidation transaction provided: (a) the net worth of the assignee
corporation or the original Tenant, if the stock is purchased, is equal to the
greater of $10,000,000.00 or that of Tenant on the date of such assignment and
reasonable written proof of this net worth requirement is given to Landlord
immediately prior to the sale of stock or asset transaction-, (b) the
assignee(if there is one) continues to operate the permitted use in the Premises
but may change its trade name to the trade name being used by the assignee: (C)
the assignee (if there is one) assumes all of Tenant's obligations hereunder by
executing, acknowledging and delivering to Landlord, prior to the effective date
of the assignment, an agreement, in recordable form, satisfactory to Landlord:
and by giving to Landlord such other documents as it reasonably requests
including the Letter of Credit required of the Tenant hereunder: and (d) Tenant
IS not IN default in the payment of Basic Annual Rent, Additional Rent or any
other amount due hereunder or in the performance of any covenant or obligation
to be performed by Tenant hereunder.
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PARAGRAPH 16
LANDLORD'S ACCESS TO PREMISES
After having given notice Landlord reserves and shall at any and all times
have the right to enter the Premises to inspect the same, to supply janitorial
service and any other service to be provided by Landlord to Tenant hereunder, to
show said Premises to prospective purchasers or tenants, to alter or repair the
Premises or any portion of the Building or Project, all without being deemed
guilty of an eviction of Tenant and without abatement of Rent, and may for that
purpose erect scaffolding and other necessary structures where reasonable
required by the character of the work to be performed, provided that the
business of Tenant shall be interfered with as little as is reasonably
practicable. Tenant hereby waives any claim for damages or any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby. For
each of the aforesaid purposes, Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon and about the Premises,
excluding Tenant's vaults and safes, and Landlord shall have the right to use
any and all means which Landlord may deem proper to open said doors in an
emergency in order to obtain entry to the Premises, and any entry to the
Premises obtained by Landlord by any of said means shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into, or
a detainer of the Premises, or any eviction of Tenant from the Premises or any
portion thereof. No provision of this Lease shall be construed as obligating
Landlord to perform any repairs, alterations or decoration except as otherwise
expressly agreed to be performed by Landlord.
PARAGRAPH 17
SUBORDINATION, ATTORNMENT, ESTOPPEL CERTIFICATES
(A) This Lease is junior, subject, and subordinate to all ground leases,
mortgages, deeds of trust, and other security instruments of any kind now
covering the Project or any portion thereof. Landlord reserves the right to
place lien's or encumbrances on the Project or any part thereof or interest
therein superior in lien and effect to this Lease. This Lease, at the option of
Landlord, shall be subject and subordinate to any and all such liens or
encumbrances now or hereafter imposed by Landlord without the necessity of the
execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination. Notwithstanding the foregoing, Tenant covenants
and agrees to execute and deliver upon request such further instruments
evidencing such subordination of this Lease as may be requested by Landlord.
(B) Tenant shall at any time and from time to time upon not less than ten
(10) days' prior notice by Landlord, execute, acknowledge and deliver to
Landlord a statement in writing and in form and substance satisfactory to
Landlord certifying that this Lease is unmodified and in full force and effect
(or if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), and the dates to which the Basic
Annual Rent, Additional Rent and other charges have been paid in advance, if
any, and stating whether or not to the best knowledge of Tenant, Landlord is in
default in the performance of any covenant, agreement or condition contained in
this Lease and, if so, specifying each such default of which Tenant may have
knowledge. Any
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such statement delivered pursuant to this Paragraph may be relied upon by any
prospective purchaser of the fee of the Building or the Project or any
prospective purchaser of the fee of the Building or the Project or any
mortgagee, ground lessor or other encumbrancer thereof or any assignee of any
such person.
(C) Should any mortgage on the Property of which the Premises are a part be
foreclosed, the Purchaser upon foreclosure of the lien of the mortgage shall
have the right following foreclosure to preserve this Lease and the rights of
the Tenant or any other person or entity having an interest in the Premises, and
the Tenant shall attorn to such Purchaser at foreclosure and pay and perform its
obligations under this Lease for the benefit of such Purchaser.
PARAGRAPH 18
SALE BY LANDLORD
In the event of a sale or conveyance by Landlord of the Project or any part
thereof, the same shall operate to release Landlord from any and all liability
under this Lease after the date of such conveyance of title. If any security
deposit has been made by Tenant, Landlord shall transfer such security deposit
to the purchaser, and thereupon Landlord shall be discharged from any further
liability in reference thereto.
PARAGRAPH 19
INDEMNIFICATION OF LANDLORD AND INSURANCE
(A) Except for Landlord's negligence or willful misconduct, Tenant shall
indemnify, hold Landlord harmless from and defend Landlord against any and all
claims, loss, costs, damage, expense or liability, including without limitation
reasonable attorneys' fees, for any injury or damages to any person or property
whatsoever when such injury has been caused in part or in whole by any act,
neglect, fault, or omission of Tenant, its agents, servants, employees or
invitees. This indemnity shall not require any payment by Landlord as condition
precedent to recovery. In addition, if any person not a party to this Lease
shall institute any other type of action against Tenant in which Landlord shall
be made a party defendant, Tenant shall indemnify, hold Landlord harmless from
and defend Landlord from all liabilities and costs by reason thereof.
(B) Tenant hereby agrees to maintain in full force and effect at all times
during the term of this Lease, at its own expense, for the protection of Tenant
and Landlord as their interests may appear, policies of insurance issued by a
responsible carrier or carriers acceptable to Landlord licensed in New Jersey
and also having a policyholder's rating of not less than A-in the most current
edition of Best's Insurance Reports, which afford the following coverage:
(i) Worker's Compensation -- Statutory
Employer's Liability -- Not less than $250,000
(ii) Comprehensive General -- Not less than $2,000,000
Liability Insurance including Combined Single Limit for both
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Blanket Contractual Liability bodily injury and
property damage
Broad Form Property Damage,
Personal Injury, Completed
Operations, Products Liability,
Fire Damage
Landlord and its managing agent shall be named as an additional insured on all
policies listed under (ii) above, and (iv) below.
(iii) All Risk Property Coverage in an amount sufficient to cover the
full cost of replacement of all improvements and betterment to the Premises
owned by Tenant and all of Tenant's fixtures and other personal property.
(iv) Rent Insurance and Business Interruption Insurance in an amount
equal to the Basic Annual Rent and Additional Rent for a period of at least
twelve (12) months commencing with the date of loss.
(C) Tenant shall deliver to Landlord at least thirty (30) days prior to the
time such insurance is first required to be carried by Tenant and thereafter at
least thirty (30) days prior to expiration of each such policy, certificates of
insurance evidencing the above coverage with limits not less than those
specified above. Such certificate, with the exception of Worker's Compensation,
shall expressly provide that the interest of Landlord therein shall not be
affected by any breach by Tenant of any provision of any such policy. Further,
all certificates shall expressly provide that no less than thirty (30) days
prior written notice shall be given Landlord in the event of material
alterations to or cancellation of the coverage evidenced by such certificates.
(D) Upon demand, Tenant shall provide Landlord, at Tenant's expense, with
such increased amount of existing insurance, and such other insurance in such
limits as Landlord may require and such other hazard insurance as the nature and
condition of the Premises may require in the sole judgement of Landlord, to
afford Landlord adequate protection for said risks. Such increased insurance
required by Landlord shall be comparable to that which is required by other
landlords of comparable quality buildings within the Princeton Forrestal Center.
(E) If on account of the failure of Tenant to comply with the provisions of
this Paragraph 19, Landlord is adjudged a coinsurer by its insurance carrier,
then any loss or damage Landlord shall sustain by reason thereof shall be borne
by Tenant and shall be immediately paid by Tenant upon receipt of a bill
therefore and evidence of such loss.
(F) Landlord makes no representation that the limits of liability specified
to be carried by Tenant under the terms of this Lease are adequate to protect
Tenant against Tenant's undertaking under this Paragraph 19. In the event Tenant
believes that any such insurance coverage called for under this Lease is
insufficient, Tenant shall provide, at its own expense, such additional
insurance as it deems adequate.
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(G) Each policy evidencing the insurance to be carried by Tenant under this
Lease shall contain a clause that such policy and the coverage endorsed thereby
shall be primary with respect to any policies carried by Landlord, and that any
coverage carried by Landlord shall be excess insurance.
(H) Any insurance required of Tenant under this Lease may be furnished by
Tenant under a blanket policy carried by it. Such blanket policy shall contain
an endorsement that names Landlord as an additional insured, references the
Premises, and guarantees a minimum limit available for the Premises equal to the
insurance amounts required in this Lease.
(I) In the event Tenant fails to procure, maintain, and/or pay for the
insurance required by this Lease, at the times and for the durations specified
in this Lease, Landlord shall have the right, but not the obligation, at any
time and from time to time, and without notice, to procure such insurance and/or
pay the premiums for such insurance, in which event Tenant shall repay Landlord,
immediately upon demand by Landlord, as additional rent, all sums so paid by
Landlord together with interest thereon and any costs or expenses incurred by
Landlord in connection therewith, without prejudice to any other rights and
remedies of the Landlord under this Lease.
PARAGRAPH 20
WAIVER OF SUBROGATION
Tenant and Landlord each agree that the respective insurance carried by it
against loss or damage by fire or other casualty shall contain a clause whereby
the insurer waives its right of subrogation against the other party.
Pursuant to the foregoing, Landlord and Tenant hereby waive all claims for
recovery from the other party for any loss or damage to any of its property
insured under valid and collectible insurance policies to the extent of any
recovery collectible under such insurance. The foregoing waiver shall be in
force only if both Tenant's and Landlord's insurance policies contain a clause
providing that such waiver shall not invalidate the insurance.
PARAGRAPH 21
NO WAIVER
No waiver by Landlord of any provision of this Lease or of any breach by
Tenant hereunder shall be deemed to be a waiver of any other provision hereof,
or for any subsequent breach by Tenant of the same or any other provisions.
Landlord's consent to or approval of any act by Tenant requiring Landlord's
consent or approval shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act of Tenant. Failure of
Landlord to insist upon strict performance of any provision of this Lease shall
not be deemed to be a waiver of such provision. No act or omission by Landlord
or Landlord's agents during the term of this Lease shall be deemed an acceptance
of a surrender of the Premises, unless confirmed by Landlord in writing. The
delivery of the keys to an employee or agent of Landlord shall not operate as a
termination of
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the Lease or a surrender of the Premises. The acceptance of any Rent by Landlord
following a breach of this Lease by Tenant shall not constitute a waiver of any
of Landlord's rights unless such waiver is expressly stated in writing and
signed by Landlord.
PARAGRAPH 22
DEFAULT
(A) The occurrence of any of the following shall constitute a material default
and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay the Rent or to make any other payment
required to be made by Tenant hereunder within five (5) days of date due;
(ii) The abandonment or vacation of the Premises by Tenant;
(iii) Any failure by Tenant to observe and perform any of its obligations
under this Lease, where such failure continues for fifteen (15) days (except
where a different period of time is specified in this Lease) after Landlord has
given Tenant written notice or such other notice as may be required by law; (iv)
Tenant makes, or has made, or furnishes, or has furnished, any warranty,
representation or statement to Landlord in connection with this Lease, or any
other agreement to which Tenant and Landlord are parties, which is or was false
or misleading in any material respect when made or furnished;
(v) Any substantial portion of the assets of Tenant is transferred unless
such transfer is incurred in the ordinary course of Tenant's business in good
faith for fair equivalent consideration, and with Landlord's consent or unless
the transfer is to an entity that pursuant to Article 15 is a permitted assignee
of the Tenant's interest in this Lease;
(vi) Tenant becomes insolvent as defined in the Federal Bankruptcy Code,
admits in writing its insolvency or its present or prospective inability to pay
its debts as they become due, is unable to or does not pay all or any material
portion (in number or dollar amount) of its debts as they become due, permits or
suffers a judgement to exist against it which affects Tenant's ability to
conduct its business in the ordinary course (unless enforcement thereof is
stayed pending appeal), makes or proposes an assignment for the benefit of
creditors or any class thereof for purposes of effecting a moratorium upon or
extension or composition, or commences or proposes to commence any bankruptcy,
reorganization or insolvency proceeding, or other proceedings under any federal,
state or other law for the relief of debtors;
(vii) Tenant fails to obtain the dismissal, within sixty (60) days after the
commencement thereof, of any bankruptcy, reorganization or insolvency
proceeding, or other proceeding under any law for the relief of debtors,
instituted against it by one or more third parties, or fails actively to oppose
any such proceedings, or, in any such proceeding, defaults or files an
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answer admitting the material allegations upon which the proceeding was based or
alleges its willingness to have an order for relief entered or its desire to
seek liquidation, reorganization or adjustment of any of its debts;
(viii) Any receiver, trustee, or custodian is appointed to take
possession of all or any substantial portion of the assets of Tenant, or any
committee of Tenant, or any committee of Tenant's creditors, or any class
thereof is formed for the purpose of monitoring or investigating the financial
affairs of Tenant or enforcing such creditors' rights.
(B) In the event of any such default by Tenant, then in addition to any
other remedies available to Landlord at law or in equity, Landlord shall have
the option to immediately terminate this Lease and all rights of Tenant
hereunder by giving written notice of such intention to terminate. In the event
that Landlord shall elect to so terminate the Lease, then Landlord may recover
from Tenant:
(i) any unpaid Rent which shall have accrued at the time of such
termination; plus
(ii) the entire amount of unpaid Rent for the balance of the term
which amount shall, at Landlord's option, be immediately due and payable; plus
(iii) any other amount necessary to compensate Landlord for Landlord's
loss or damage caused directly or indirectly by Tenant's failure to perform its
obligations under this Lease including, but not limited to, reasonable
attorneys' fees and costs; plus
(iv) at Landlord's election, such other amounts in addition to, or in
lieu of the foregoing, as may be permitted from time to time by applicable law.
(C) In the event of any such default by Tenant, Landlord shall also have
the right, with or without terminating this Lease, to re-enter and to take
possession of the Premises and to remove all persons and property from the
Premises. Landlord is hereby granted a lien, in addition to any statutory lien
or right to distrain that may exist, on all personal property of Tenant in or
upon the Premises, to assure payment of the Rent and performance of the
covenants and conditions of this Lease. Landlord shall have the right, as agent
of Tenant, to take possession of all personal property of Tenant found in or
about the Premises including without limitation furniture and fixtures of Tenant
and, to sell the same at public or private sale and to apply the proceeds
thereof to the payment of any monies due or becoming under this Lease, or to
remove all such effects and store same in a public warehouse or elsewhere at the
cost of and for the account of Tenant, or any other owner or occupant, Tenant
hereby waiving the benefit of all laws exempting property from executing, levy
and sale of distress or judgement.
(D) In the event of the vacation or abandonment of the Premises by Tenant
or in the event that Landlord shall elect to re-enter as provided above or shall
take possession of the Premises pursuant to legal proceeding or pursuant to any
notice provided by law, then if Landlord does not elect to terminate this Lease
as provided in this Paragraph 22, Landlord may from time to time,
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without terminating this Lease, either recover all Rent as it becomes due or
relet the Premises or any part thereof for such term or terms and at such rental
or rentals and upon such other terms and conditions as Landlord in his sole
discretion may deem advisable with the right to make alterations and repairs to
the Premises.
(E) In the event that Landlord shall elect to so relet, then rentals
received by Landlord from such reletting shall be applied: first, to the payment
of any indebtedness other than Rent due hereunder from Tenant to Landlord;
second, to the payment of any cost of such reletting, including but not limited
to broker's commissions and reasonable attorneys' fees; third, to the payment of
the cost of any alterations and repairs to the premises; fourth, to the payment
of any Rent due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future Rent as the same may become due and
payable hereunder. Should any such reletting result in the payment of rentals
less than the Rent payable by Tenant hereunder, then Tenant shall pay such
deficiency to Landlord immediately upon demand therefor by Landlord. Tenant
shall also pay Landlord as soon as ascertained, any costs and expenses incurred
by Landlord in such reletting or in making such alterations and repairs not
covered by the rentals received from such reletting.
(F) No re-entry or taking possession of the Premises by Landlord pursuant
to this Paragraph 22 shall be construed as an election to terminate this Lease
unless a written notice of such intention be given to Tenant. Notwithstanding
any reletting without termination by Landlord because of any default by Tenant,
Landlord may at any time after such reletting, elect to terminate this Lease for
any such default.
PARAGRAPH 23
RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT
If Tenant defaults in the making of any payment or in the doing of any act
herein required to be made or done by Tenant, then Landlord may but shall not be
required to make such payment or do such act and charge to Tenant the amount of
all costs in connection therewith including but not limited to reasonable legal
fees and expenses incurred by Landlord, with interest thereon as provided in
Paragraph 36 from the date paid by Landlord to the date of payment thereof by
Tenant. Such payment and interest shall constitute Additional Rent hereunder
due and payable upon demand but the making of such payment or the taking of such
action by Landlord shall not operate to cure such default or to stop Landlord
from the pursuit of any other remedy to which Landlord would otherwise be
entitled.
PARAGRAPH 24
NOTICE
All notices which Landlord or Tenant may be required or may desire to serve
on the other may be served, as an alternative to personal service, by mailing
the same by registered or certified mail, return receipt requested, postage
prepaid, addressed as set forth in Item 15 of the Basic Lease
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Provisions, or addressed to such other address or addresses as either Landlord
or Tenant may from time to time designate to the other by written notice.
PARAGRAPH 25
INSOLVENCY OR BANKRUPTCY
In no event shall this Lease be assigned or assignable by operation of law
and in no event shall this Lease be an asset of Tenant in any receivership,
bankruptcy, insolvency, or reorganization proceeding.
PARAGRAPH 26
SURRENDER AND HOLDOVER
(A) On the expiration or the sooner termination hereof, Tenant shall
peaceably surrender the Premises broom clean, in good order, condition and
repair, reasonable wear and tear excepted. On or before the last day of the term
or the sooner termination hereof, Tenant shall at its expense remove its trade
fixtures, signs and other personal property from the Premises. Any property not
removed shall be deemed abandoned and may either retained by Landlord as its
property, or disposed of, without accountability and at Tenant's expense, in
such manner as Landlord may determine. If the Premises are not surrendered at
the end of the term or the sooner termination, Tenant shall indemnify Landlord
against loss or liability resulting from delay by Tenant in so surrendering the
Premises, including, without limitation, claims made by any succeeding tenants
found on such delay. Tenant shall promptly surrender all keys for the Premises
and Building restrooms to Landlord at the place then fixed for payments of Rent.
Tenant's covenants hereunder shall survive the expiration or termination of this
Lease.
(B) If Tenant holds over after the expiration or sooner termination hereof
without the express written consent of Landlord, Tenant shall become a Tenant at
sufferance only at two times the greater of (i) the Rent due hereunder or (ii)
the then prevailing market rate rent, as determined by Landlord in its sole and
absolute discretion, plus all items of Additional Rent provided herein, and
either (i) or (ii) shall be prorated on a daily basis according to the number of
days contained in the month that such expiration or earlier termination takes
place, and otherwise upon the terms, covenants and conditions herein specified,
so far as applicable. Acceptance by Landlord of Rent after such expiration or
earlier termination shall not constitute a consent to a holdover hereunder or
result in a renewal. The foregoing provisions of this paragraph are in addition
to and do not affect Landlord's rights of re-entry or any other rights of
Landlord hereunder or as otherwise provided by law.
PARAGRAPH 27
CONDITION OF PREMISES
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Landlord's sole responsibility for preparation of the Premises will be as
set forth in the Work Letter attached hereto as Exhibit "B-1" and if there is no
Work Letter, Landlord's sole responsibility will consist of building a demising
wall and an entry door for Tenant. Landlord's responsibility for the
preparation of the Premises as described above is hereinafter referred to as
Landlord's Work. Except for Landlord's Work, Tenant acknowledges that neither
Landlord nor any agent of Landlord has made any representation or warranty with
respect to the Premises, the Building or the Project for the conduct of Tenant's
business. The taking of possession of the Premises by Tenant shall conclusively
establish that the Building and the Premises were at such time in good order and
repair.
PARAGRAPH 28
QUIET POSSESSION
Upon Tenant's paying the rent reserved hereunder and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be performed hereunder, Tenant shall have quiet possession of the Premises for
the entire term hereof, subject to all of the provisions of this Lease. This
covenant shall be binding upon any Landlord hereunder only during its respective
ownership of the Premises.
PARAGRAPH 29
LIMITATION OF LANDLORD'S LIABILITY
(A) Except for Landlord's negligence or willful misconduct, Landlord and
its employees and agents shall not be liable for any damage to Tenant's property
entrusted to employees of Landlord or its agents, nor for any loss or
interruption of Tenant's possession, nor for loss of or damage to any property
by theft or otherwise, nor for any injury or damage to persons or property
resulting from fire, explosion, falling plaster, steam, gas, electricity, water
or rain which may leak from any part of the Building or from the pipes,
appliances or plumbing works therein or from the roof, street, or sub-surface or
from any other place or resulting from dampness or any other cause whatsoever in
the Building or the Project. Landlord and its employees and agents shall not be
liable for any property loss resulting from any latent defect in the Premises or
in the Building.
(B) Tenant shall look solely to Landlord's estate and property in the
Project (or the proceeds thereof) for the satisfaction of Tenant's remedies for
the collection of a judgement (or other judicial process) requiring the payment
of money by Landlord in the event of any default by Landlord hereunder, and not
other property or assets of Landlord or Landlord's partners or members shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies under or with respect to either this Lease, the
relationship of Landlord and Tenant hereunder, or Tenant's use and occupancy of
the Premises.
PARAGRAPH 30
GOVERNING LAW
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This Lease shall be governed by and construed pursuant to the laws of the
State of New Jersey.
PARAGRAPH 31
COMMON FACILITIES
Tenant shall have the non-exclusive right in common with others, to the use
of common entrances, lobbies, elevators, ramps, drives, stairs and similar
access and serviceways and the other common facilities (except for parking
spaces other than those provided for in Paragraph 39) in and adjacent to the
Building or Project, as may be provided by Landlord from time to time for
general use, subject to such rules and regulations as may be adopted by the
Landlord including, but not limited to, the right to close from time to time all
or a portion of said common facilities to such extent as may be legally
sufficient, in Landlord's sole opinion, to prevent a dedication thereof or the
accrual of rights to any person or to the public therein.
PARAGRAPH 32
SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Lease, all of the covenants,
conditions and provisions of this Lease shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs, personal
representatives, successors and assigns. However, the obligations of Landlord
under this Lease shall not be binding upon Landlord herein named with respect to
any period subsequent to the transfer of its interest in the Project as owner or
lessee thereof, and in the event of such transfer said obligations shall
thereafter be binding upon each transferee of the interest of Landlord herein
named as such owner or lessee of the Project, but only with respect to the
period commencing with its respective transfer in and ending with a subsequent
transfer out, and such transferee, by accepting such interest, shall be deemed
to have assumed such obligations except only as may be expressly otherwise
provided in this Lease. A lease of Landlord's entire interest in the Project as
owner or lessee thereof shall be deemed a transfer within the meaning of this
Paragraph 32.
PARAGRAPH 33
BROKERS
Tenant represents and agrees that it has not directly or indirectly dealt
with any real estate broker(s) other than the firm(s) specified in Item 12 of
Basic Lease Provisions in connection with this transaction. Further, Tenant
covenants and agrees that with respect to any renewal or extension or expansion
of this Lease, or with respect to any transaction' by Tenant or its affiliates,
successors or assigns with Landlord or 400 College Road Associates, Limited
Partnership with respect to the leasing of space by Tenant either by original
lease, renewal or expansion space within any buildings owned by Landlord or 400
College Road Associates, Limited Partnership within College Park at
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Princeton Forrestal Center in Plainsboro, New Jersey, that Tenant will pay all
brokerage commissions or finders fees, commissions, fees or other remuneration
claimed by any real estate broker or finder other than the firm (s) specified in
Item 12 of the Basic Lease Provisions. Tenant agrees to defend, indemnify and
hold Landlord harmless from and against any claims for brokerage commissions or
finder's fee arising out of or based upon any actions of Tenant with respect to
any other broker or brokers other than the firm (s) specified in Item 12 of the
Bas Lease Provisions with respect to the leasing of space by Tenant, either by
original leas renewal, or expansion space for any space including, but not
limited to the Premises, least by Tenant or its affiliates, successors or
assigns from Landlord or 400 College Ro,, Associates, Limited Partnership within
the buildings owned by either of them at College Park at Princeton Forrestal
Center in Plainsboro, New Jersey. The terms of this Paragraph will survive
termination of this Lease.
PARAGRAPH 34
NAME
Tenant shall not, without the written consent of Landlord, use the name of
the Building or the Project for any purpose other than as the address of the
business to l: conducted by Tenant in the Premises, and in no event shall Tenant
acquire any rights in I to such names.
PARAGRAPH 35
EXAMINATION OF LEASE
Submission of this instrument for examination or signature by Tenant does
n, constitute a reservation of or option for lease, and it is not effective as a
Lease or otherwise until execution by and delivery to both Landlord and Tenant.
PARAGRAPH 36
ADDITIONAL CHARGES
Any amount due from Tenant to Landlord which is not paid when due, in
addition to other remedies available to Landlord, shall at Landlord's option
bear interest which shall be at the lesser of (i) eighteen (18%) percent per
annum or (ii) the maximum lawful rate per annum, from the date such payment is
due until paid, but the payment of such interest shall not excuse the cure of
default. In addition to the foregoing, Landlord may also impose a late charge
of four (4%) percent of the amount past due, and a charge for reasonable legal
fees and costs.
PARAGRAPH 37
MARGINAL HEADINGS
The marginal headings and titles to the Paragraphs of this Lease are not a
part I this Lease and shall have no effect upon the construction or
interpretation of any pa
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PARAGRAPH 38
PRIOR AGREEMENTS; SEVERABILITY
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreement, understanding or representation pertaining to any such matter shall
be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. If any term or provision of this Lease, the
deletion of which would not adversely affect the receipt of any material benefit
by either party hereunder, shall be held invalid or unenforceable to any extent,
the remainder of this Lease shall not be affected thereby and each term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
PARAGRAPH 39
PARKING
Tenant shall have the right to the non-exclusive use of the number of
parking spaces shown in Item 11 of Basic Lease Provisions. Tenant covenants and
agrees to comply with all reasonable rules and regulation which Landlord may
hereafter from time to time make to assure use of parking spaces by permitted
users. Landlord's remedies under such rules and regulations may include, but
shall not be limited to, the right to tow away at owner's expense any vehicles
not parked in compliance with these rules and regulations. Landlord shall not
be responsible to Tenant for the noncompliance or breach by any other tenant of
said rules and regulations.
PARAGRAPH 40
AUTHORITY
Tenant represents that Tenant is authorized to do business in the State of
New Jersey. Upon Landlord's request, Tenant's signatories hereto will furnish
satisfactory evidence of Tenant's authorization and their authority to execute
this Lease on behalf of Tenant.
PARAGRAPH 41
NO LIGHT, AIR OR VIEW EASEMENT
Any diminution or shutting off of light, air or view of any structure which
may be erected on lands adjacent to the Building shall in no way effect this
Lease or impose any liability on Landlord.
PARAGRAPH 42
FORCE MAJEURE
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Except as otherwise expressly provided herein, this Lease and the
obligations of Tenant to pay Rent hereunder and perform all of the other
covenants, agreements, terms, provisions and conditions hereunder on the part of
Tenant to be performed shall in no way be affected, impaired or excused because
Landlord is unable to fulfill any of its obligations under this Lease, if
Landlord is prevented or delayed from so doing by reason of any cause beyond
Landlord's reasonable control, including, but not limited to, Acts of God,
strikes, labor troubles, shortage of material, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulations of any governmental agency or by reason of war, hostilities or
similar emergency; provided that Landlord shall in each instance exercise
reasonable diligence to effect performance as soon as possible. It is agreed
that Landlord shall not be required to incur any overtime or additional expenses
in Landlord's reasonable diligence to effect the performance of any of
Landlord's obligations hereunder.
PARAGRAPH 43
ATTORNMENT
If for any reason the leasehold estate of Landlord as Tenant under any
underlying lease is terminated by summary proceedings or otherwise, Tenant will
attorn to the Landlord under such underlying Lease and will recognize such
Landlord as Tenant's Landlord under this (sub)lease. Tenant agrees to execute
and deliver, at any time, and from time, to time, upon the request of Landlord
or of the Landlord under any such underlying lease, any instrument which may be
necessary or appropriate to evidence such attornment and Tenant hereby appoints
Landlord the Landlord under such underlying lease the attorney-in-fact,
irrevocable, of Tenant to execute and deliver any such instrument for and on
behalf of Tenant. Tenant further waives the provisions of any statute or rule
of law now or election to terminate this (sub)lease or to surrender possession
of the Premises in the event such underlying lease terminates or any such
proceeding is brought by Landlord under such underlying lease, and agrees that
his (sub)lease shall not be affected in any way whatsoever by any such
proceeding or termination.
PARAGRAPH 44
COMMON AREA MAINTENANCE COST
Base Project Operating Expenses as defined in Paragraph 3 shall also
include Landlord's costs and expenses incurred as Landlord's share of common
area maintenance all as set forth in Article 29 of the underlying Land Lease
between the Trustees of Princeton University as landlord and Landlord as tenant.
PARAGRAPH 45
NOTICE REGARDING TENANT'S MOVING IN OR OUT
Two days prior to any move into or out of the Premises, Tenant must notify
National Business Parks, as Agent for College Road Associates, of the following:
the name of the Moving
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Company, Moving Company representative in charge of the move, and Moving
Company's phone number. Except as otherwise pre-arranged with Landlord, all
moves must be done during the work week (Monday through Friday, inclusive
between the hours of 7:30 A.M. and 4:30 P.M.). If Landlord consents to Tenant
moving in or out of the Premises on a Saturday or a Sunday, Tenant shall be
required to pay an overtime charge for Landlord's representative to be present
(currently such charge 6b $50.00 per hour. No elevators will be available
Saturday, Sunday or holidays or after 4:30 P.M. on other days. The insurance
evidence in the form required by Paragraph 19 hereof must be delivered to
Landlord prior to commencement of the Tenant's move into or out of the Premises.
PARAGRAPH 46
FIRST OPTION TO RENEW
Upon condition that Tenant is not in default in the payment of any Rent or
other charge payable to Tenant under this Lease and not in default in the
performance of any covenant or obligation to be performed by Tenant under this
Lease and upon Tenant's giving Landlord nine (9) months notice in writing in the
manner prescribed in Article 24 hereof prior to the expiration of the term
hereof, Tenant shall have the option to renew and extend this Lease for an
additional period of five (5) years, pursuant and subject to all terms,
covenants, provisions, and conditions of this Lease, including, without
limitation, the payment of all items of Rent as provided for hereunder, except
that the Basic Annual Rent shall be adjusted to the then prevailing fair market
rent for comparable space within Princeton Forrestal Center.
PARAGRAPH 47
SECOND OPTION TO RENEW
Upon condition that Tenant is not in default in the payment of any Rent or
other charge payable to Tenant under this Lease and not in default in the
performance of any covenant or obligation to be performed by Tenant under this
Lease and upon Tenant's giving Landlord nine (9) months notice in writing in the
manner prescribed in Article 24 hereof prior to the expiration of the first
renewal term, Tenant shall have the option to renew and extend this Lease for an
additional period of five (5) years, pursuant and subject to all terms,
covenants, provisions, and conditions of this Lease, including, without
limitation, the payment of all items of Rent as provided for hereunder, except
that the Basic Annual Rent shall be adjusted to the then prevailing fair market
rent for comparable space within Princeton Forrestal Center.
PARAGRAPH 48
RIGHT OF FIRST REFUSAL ADDITIONAL SPACE
During the term hereof and provided that Tenant is not in default in the
Payment of Basic Net Annual Rent, Additional Rent or any other amount due
hereunder or in the performance of any covenant or obligation to be performed by
Tenant hereunder, Landlord agrees that Landlord will not enter into any lease
for any space which is contiguous to Tenant's Premises in the Building, to any
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prospective tenant who expresses to Landlord his intention to lease such space,
unless Landlord shall first receive an acceptable bona-fide offer in writing
from such prospective tenant for the lease of such space and Landlord shall have
notified Tenant in writing of the name of the prospective tenant making the
offer, the rental amount to be paid therefore and all pertinent details of the
proposed lease. Landlord agrees that Tenant shall thereupon have the one-time
prior right to lease said space upon the same terms and conditions as are
contained in said offer. Said rip-ht must be exercised within ten (10) business
days after Tenant's receipt of said written notice of said offer by giving
written notice to Landlord of the exercise of said right within said ten (10)
business day period. If Tenant shall fail to exercise its right to lease that
particular space, Tenant shall be conclusively deemed to have forever waived and
relinquished all rights to lease the particular space specified in the notice
and Landlord may lease such space to the third party without further notice to
Tenant.
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[FLOOR PLAN]
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EXHIBIT B-1
LANDLORD'S WORK LETTER
It is the intent of this Exhibit that Tenant shall be permitted reasonable
freedom in the interior design and layout of its space, consistent with
applicable building codes and sound architectural and construction practices in
first class office buildings, provided that no interference is caused to the
operation of the Building's mechanical, heating, cooling or electrical systems
or other building operations or functions, and no increase in maintenance or
utility charges will be incurred by Landlord. Any additional costs of design,
construction, operation or maintenance which results from Tenant's deviations
from Building Standard quantities or specifications shall be charged to Tenant.
A. IMPROVEMENTS
1. Landlord's Work: Landlord (in accordance with applicable building
codes and regulations), at its sole cost and expense, shall furnish and install
in or for the benefit of the Premises pursuant to the plans and specifications
referred to below, the following:
(a) For divided-floor tenancies, all walls separating the Premises from
areas or from other tenant space.
(b) Interior core improvements, including men's and women's toilet rooms,
telephone closets, electrical closet, janitorial closet and core
walls.
(c) Those Building Standard improvements as shown in the list of
allowances as detailed in Exhibit B-2, and indicated as shown in
Exhibit "A" not to exceed a total construction cost of $225,980.00.
2. Tenant's Work: All other improvements required by Tenant in the
Premises shall be at the sole cost and expense of Tenant.
3. Landlord's Approval: Tenant's Plan, as hereinafter defined, shall be
subject to Landlord's prior written approval. If Tenant's Plan requires any
variance or any modifications of any existing site plan, Tenant will be
responsible for obtaining all approvals required at Tenant's sole cost and
expense.
B. PLANS AND SPECIFICATIONS
Tenant may use the services of the space planner retained by Landlord at no
cost to Tenant, to prepare an initial space plan and one revision. Tenant may
at its own expense employ other professional space planning assistance. If
Tenant requests any additional work which is not provided in the Building
Standard, Tenant shall be responsible for all costs resulting from such
additional work, including but not limited to architectural and engineering
charges, and any special permits or fees attributed thereto. In either event,
both Landlord and Tenant shall conform with the applicable time schedule set
forth below.
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1. Tenant Uses Landlord's Space Planner: Tenant shall devote such time in
consultation with Landlord's space planner as shall be necessary to enable the
latter to develop complete working drawings and specifications for Building
Standard improvements for the Premises (which drawings and specifications are
hereafter and in the foregoing Lease collectively called the "Tenant's Plan"),
showing thereon partitions, hardware, electrical and telephone outlets and
spacial requirements (if any), light fixture locations, wall finishes, floor
coverings, for Tenant's review and approval. Upon such approval, Landlord will
submit Tenant's Plan, including items of work above Building Standard Allowance,
to Landlord's contractor for determination of the cost of such work. Such costs
for items of work, if any, above Building Standard Allowance shall include the
contractor's fee of 10% for overhead and profit and Landlord's fee of 10% to
cover its costs in administering the work. After approval by Tenant of such
costs and before Landlord shall order that any work be commenced, Tenant shall
pay the first one third in accordance with the following:
One third (1/3) at time of approval of costs.
One third (1/3) when work is 50% completed.
One third (1/3) upon completion.
Tenant shall approve space plan and provide all information required for
working drawings no later than 5 days upon receipt of same.
The following maximum time periods shall be allowed for the following
matters after the completion of the immediately preceding item:
Business Days
Allowed to Complete
-------------------
(a) Landlord to complete working drawings and specifications 20 days
(b) Tenant gives Landlord its approval of working drawings and
specifications with any required changes 3 days
(c) Landlord quotes Tenant cost of work above
Building Standard Allowance for non-standard items 5 days
(d) Tenant reviews, approves excess cost and pays one third (1/3)
thereof to Landlord 3 days
(e) Landlord authorizes commencement of work 1 day
2. Base Building Changes: If Tenant Plan necessitates revisions in the
design of the base building or necessitates changes in the construction of the
base building for which Landlord has previously contracted, Tenant shall be
responsible for all costs resulting from such design revisions or construction
changes, including but not limited to architectural and engineering changes, and
any special permits for fees attributed thereto. Before Landlord shall
authorize such design and/or construction changes, Tenant shall pay Landlord the
full cost attributable thereto which includes the
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contractor's fee of 10% for overhead and profit and Landlord's fee of 10% to
cover its costs in administering the work.
C. CONSTRUCTION
1. By Landlord: All partitions, floors, ceilings, and doors shall be
installed and all work involving or affecting the Building's mechanical,
electrical systems shall be performed by Landlord's contractor. If any work is
not performed by the Landlord during the course of this Lease, or is performed
by Tenant's own contractors, a fee of 10% of the total cost will be paid to the
Landlord to cover the cost of coordination of Tenant's work.
2. By Tenant: Finish work in the Premises other than work described in
the preceding paragraph, may be done by Tenant, in compliance with the
following:
(a) No such work shall proceed without Landlord's prior written
approval of (i) Tenant's contractor; (ii) detailed plans and specifications for
the work; and (iii) a certificate of workman's compensation insurance in an
amount and with a company and on a form acceptable to Landlord and a certificate
of insurance in form and from an insurer acceptable to Landlord, showing Tenant
or Tenant's contractor to have in effect public liability, comprehensive general
liability and property damage insurance with limits of not less than
$1,000,000/$2,000,000 and $1,000,000 respectively. All such certificates except
worker's compensation shall be endorsed to show Landlord as an additional
insured and such insurance shall be maintained by Tenant or Tenant's contractor
at all times during the performance of Tenant's work.
(b) All such work shall be done in conformity with applicable codes
and regulations of governmental authorities having jurisdiction over the
Building and premises and with valid building permits and other authorizations
from appropriate governmental agencies when required shall be obtained by
Landlord's representative at Tenant's sole expense. Any work not acceptable to
the appropriate governmental agencies or not reasonably satisfactory to
Landlord, shall be promptly replaced at Tenant's expense. Notwithstanding any
failure by Landlord to object to any such work, Landlord shall have no
responsibility therefor. Tenant agrees to save and hold Landlord harmless for
said work as provided in the Lease.
(c) Tenant and Tenant's contractors shall abide by all safety and
construction laws, ordinances, rules and regulations. All work and deliveries
shall be scheduled through Landlord. Entry by Tenant's contractors shall be
deemed to be under all the terms, covenants, provisions and conditions of the
Lease. All Tenant's materials, work, installations and decorations of any
nature brought upon or installed in the Premises before the Lease Commencement
Date shall be at Tenant's risk, and neither Landlord nor any party acting on
Landlord's behalf shall be responsible for any damage thereto or loss or
destruction thereof. Tenant shall not employ any contractor who in Landlords'
opinion may prejudice Landlord's negotiations or relationships with Landlord's
contractors or subcontractors or the negotiations or relationship of those
contractors or subcontractors with their employees, or may disturb harmonious
labor relations.
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(d) Tenant shall reimburse Landlord for any extra expenses incurred by
Landlord by reason of faulty work done by Tenant or its contractors, or by
reason of delays caused by such work, or by reason of cleanup which fails to
comply with Landlord's rules and regulations, or by reason of use of elevators
outside normal working hours.
(e) Tenant shall pay to Landlord a building service fee of ten percent
(10%) of the total cost of Tenant's work not done by Landlord's contractor to
cover Landlord's cost of coordination of Tenant's Work. Such building service
fee shall be paid to Landlord at the time of Landlord's approval of Tenant's
contractor(s) as provided in Paragraph 2(a) above.
(f) Tenant's contractors shall not post any signs on any part of the
Building or the premises.
(g) Tenant shall, upon Landlord's request, provide Landlord with
copies of bills and invoices for the cost of Tenant's Work hereunder.
3. Tenant's Option to Use Landlord's Contractor: Tenant may elect to have
any of the work described in Paragraph 2 done by Landlord's contractor at
Tenant's expense.
4. Changes: If there are any changes requested by Tenant, after approval
of Tenant's Plan, Tenant shall be responsible for all costs including but not
limited to permits and fees, architectural, engineering and related design
expenses resulting from such changes. No such changes shall be made without
prior written approval of Landlord. Landlord shall not be responsible for delay
in occupancy by Tenant because of changes to plans after approval by Tenant as
outlined above. Upon completion of such revised working drawings and
specifications, Landlord shall notify Tenant in writing of the cost which will
be chargeable to Tenant by reason of such change, addition or deletion. Tenant
shall, within (5) business days, notify Landlord in writing whether it desires
to proceed with such change, addition or deletion. In the absence of such
written authorization and payment in full of the total costs of such change,
addition or deletion, Landlord shall not be obligated to continue work on
Tenant's premises and may suspend work and Tenant shall be responsible and
chargeable for any and all delays in the completion of the Premises resulting
therefrom.
5. Tenant's Inspection: Tenant is authorized by Landlord to make periodic
inspections of the Premises during construction provided that such inspections
are made during reasonable business hours and that Tenant is accompanied by a
representative of the Landlord. Tenant shall advise Landlord immediately in
writing of any objection to the performance of such work.
D. ACCEPTANCE OF PREMISES
When Landlord's Work and Tenant's Work is substantially completed in
accordance with Tenant's Plan except for the punch list items the Premises
and/or Additional Space shall be considered acceptable for occupancy. Within
five (5) business days of Landlord's notice that Landlord's Work and Tenant's
Work has been substantially completed, Tenant shall inspect the Premises and/or
Additional Space, in the presence of Landlord and Landlord's contractor in order
to establish a punch list of items to be completed or corrected.
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E. RESPONSIBILITY FOR DELAYS
If Tenant shall cause any delay in the construction of the Premises,
whether by reason of any failure by Tenant to comply with the applicable time
schedule set forth in Paragraph B1, or by Tenant's requirement of materials or
installations different from the Building Standard, or by delays in performance
of completion by a party employed by Tenant, or by reason of building code
problems arising from Tenant's design, or by reason of changes in the work
ordered by Tenant, then notwithstanding the provisions of the Lease or any other
provision of this Exhibit, any such delay in completing the Premises shall not
in any manner affect the Lease Commencement Date of the Tenant's liability for
the payment of rent set forth in the Lease.
F. INCORPORATED IN LEASE
This Agreement is, and shall be incorporated by reference in the Lease and
all of the terms and provisions of said Lease are and shall be incorporated
herein by this reference.
G. BUILDING STANDARD ALLOWANCES
Landlord, at Landlord's expense, except as otherwise expressly specified in
this Exhibit B-1 and in the foregoing Lease, shall furnish and install in and to
the Premises the following, all of which shall be of material, manufacture,
design, capacity, finish and color of the Building Standard adopted by Landlord
for the Building in accordance with the Tenant's Plan. The Building Standard
Allowances as attached represents a maximum to be provided at no cost to Tenant.
Tenant shall receive no credit for unused items.
H. ELECTRICAL CONSUMPTION CALCULATION
If Tenant's electrical requirements exceed power designed to be provided to
the Premises, in order to accurately calculate the power consumed by Tenant,
Landlord at its option may require Tenant to install at Tenant's cost a check
meter. When no meter is required a survey of Tenant's electrical consumption
will be made at Tenant's expense.
I. FINAL PAYMENT OF EXCESS COSTS
If prior to Tenant's occupancy of the Premises and/or Additional Space
there is a default by Tenant in payment of the above, Landlord shall, in
addition to all other legally allowable remedies, have the same rights as in the
case of default in rent under the Lease. Tenant shall pay to Landlord the
balance of all excess costs to complete Tenant's Work and the entire amount of
any extra expenses incurred by Landlord.
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EXHIBIT B-2
BUILDING STANDARD
300 SERIES
1. PARTITIONS
(a) Partitions within the Demised Premises shall have 5/8" gypsum board on
each side of 2-1/2" metal studs, 24" on center, taped and spackled, to
underside of finished ceiling. Partitions between the Demised
Premises and corridor(s) and between the Demised Premises, any
adjacent space shall have 5/8" fire code gypsum board, taped and
spackled, on each side of 3-1/2" metal studs, 24" on center. Demising
partitions and corridor partitions to have 1-1/2" (full thick) sound
deadening insulation installed within from floor to underside of floor
above.
(b) There will be no jogs, curves or angles in any partition.
(c) Vinyl base 4" high to be on all partitioning and existing walls and
columns.
2. DOORS
(a) All frames to be 16 gauge, pressed steel, painted.
(b) Doors within Demised Premises to be 3'-0" x 7'0" nominal x 1-3/4"
solid core oak, rift cut, matched finish. Doors to have fire rating
as required by applicable codes.
3. HARDWARE
(a) Cylindrical latch sets, standard weight, on individual office doors
within the Demised Premises.
(b) Cylindrical lock sets, heavy duty, and closers on doors from
corridor(s) on Demised Premises.
(c) Lock sets and latch sets to be Schlage, Sargent, Yale, Russwin or
equal, as selected by Landlord.
(d) All lock sets shall be keyed to the building master key system.
4. ACOUSTICAL CEILINGS
(a) Lay-in acoustic tile ceilings, within Demised Premises, shall be 24" x
48" regressed white mineral fiber, textured panels with white recessed
"T"-spline, as selected by Landlord.
(b) Ceiling heights within Demised Premises to be nominal 9'-0".
(c) Direction of ceiling-grid to be as determined by Landlord.
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5. FLOORING
Building standard carpet to be in all tenant areas where vinyl composition
tile is not installed. All carpets will be selected from Landlord's
samples, or of equal quality.
6. PAINTING
(a) Interior wall surfaces of gypsum board shall receive two (2) coats of
flat latex paint, colors to be selected by Tenant from Landlord's
samples.
(b) All interior ferrous metal surfaces shall receive two (2) coats of
alkyd semigloss enamel paint over shop-applied primer.
(c) All wood doors to receive one (1) coat of sealer and two (2) coats of
clear polyurethane satin varnish.
(d) Paint manufacturers to be Pratt & Lambert, Devoe & Reynolds, Benjamin
Moore, or approved equal, as selected by Landlord.
7. WINDOW COVERING
All exterior windows to receive building standard, narrow, horizontal
aluminum slat blinds, Levelor or equal, as selected by Landlord.
8. ELECTRICAL SPECIFICATIONS
(a) Lighting - Provide 2' x 4' 3L - high efficiency open deep cell
fixtures in regressed aluminum frame with air return feature.
(b) Power - Wall mounted duplex receptacles must meet all applicable
codes.
(c) The average electric load of the Demised Premises shall not exceed
five (5) watts per square foot for lighting and power in office areas.
Landlord will provide available service of 200A 277/480V, 3 phase, for
Tenant's exclusive use. All other switchgear required is a function
of the work letter allowance.
(d) Landlord shall initially provide and install lamps and ballasts.
Replacement of same shall be by Landlord, at Tenant's expense.
9. FIRE AND LIFE SAFETY FEATURES
(a) The Building is fully sprinklered in all areas.
(b) Fire Alarm System consisting of manual pull boxes, annunciators, alarm
bells, control panel, etc. shall be required per code.
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(c) Smoke detectors, ionization-type, in corridors, Tenant's space,
electrical equipment rooms, elevator machine rooms and ductwork where
the air quality is over 15,000 CFM. Firestats in the ductwork where
air quality is less than 15,000 CFM.
(d) Battery back-up shall be required in the Building to operate all
emergency and exit lighting fixtures in public areas and fire alarm
system.
10. TELEPHONE WORK
(a) The Landlord shall arrange with New Jersey Bell Telephone Company for
telephone service within the equipment room in the Building's core.
(b) All telephone work and wiring in partitions, floors and ceilings to be
paid for by Tenant as arranged for by Tenant with any qualified
installer selected by Tenant but approved by Landlord. Landlord will
coordinate work with other trades as required. Completion or non-
completion of the telephone work will not delay Tenant's acceptance of
the Demised Premises or the payment of Rent. All electrical load
centers, special wiring and plywood supplied by Landlord for telephone
equipment shall be an extra cost to be paid by Tenant. Telephone
company work is to meet all prevailing codes.
11. RVAC SPECIFICATIONS
(a) Heating, ventilation and air-conditioning system shall be capable of
maintaining the following interior conditions, subject to governmental
regulations:
Summer - 75 degrees F (+2 degrees F) dry bulb and 50% relative
humidity when outside temperature is 90 degrees F dry bulb and 75
degrees wet bulb.
Winter - 68 degrees F when outside temperature is 14 degrees F.
(b) The VAV system with roof top A/C unit will have automatic thermostats
mounted in the rooms or open spaces within the Demised Premises.
(c) The VAV units are connected to roof top A/C units with filters, mixing
dampers and fan motor.
(d) Tenant override timers and running hour meter will be provided in
electrical closet for after hours use.
(e) The air supply distribution of the HVAC system for the Demised
Premises shall be based on five (5) watts per square foot of total
electrical load for all purposes. Occupancy rate is based on one (1)
person per 200 square feet.
(f) All heating will be provided from the perimeter base board heaters via
solid state controllers, from Building central system.
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(g) The control system for the heating will be by means of electric
thermostats mounted in the rooms or open spaces within the Demised
Premises as described in (11 b) interfaced with solar & ambient
outdoor temperature sensors.
(h) Zoning within Tenant's Demised Premises shall provide interior and
perimeter zones. The number of zones, as determined by Landlord,
shall be based on orientation and total area occupied with average
zones as follows:
Perimeter of areas - one (1) zone per 1,200 square feet
Interior areas - one (1) zone per 2,000 square feet
An average of 1 CFM per square foot will be delivered by the HVAC
system within the Demised Premises. Diffusers supplying air will be
spaced at 1 per 225 square feet.
(i) If Tenant's equipment (i.e. computers, business machines, etc.) or
special uses (i.e. conference rooms, mailrooms, lunch rooms, etc.)
requires air-conditioning above and beyond Building Standard, as
outlined, said additional air conditioning (including cost of
operation as stipulated in the Lease) shall be paid for by Tenant.
Any special exhaust requirements will also be paid for by Tenant.
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EXHIBIT "C"
COMMENCEMENT DATE MEMORANDUM
THIS AGREEMENT made the 5th day of November, 1996, by and between
COLLEGE ROAD ASSOCIATES, LIMITED PARTNERSHIP ("Landlord") and SRTC with an
office at 301 College Road East, Princeton, New Jersey 08540 ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a lease dated 8/15/96
("Lease") setting forth the terms of occupancy by Tenant of a portion of a
Building located at 301 College Road East, Princeton, New Jersey; and
WHEREAS, the Lease is for a term of five (5) years, with the "Target
Commencement Date" of the term being defined as November 1, 1996 in Basic Lease
Provisions of the Lease; and
WHEREAS, it has been determined that November 1, 1996 is the actual
Commencement Date of the Lease.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter set forth, it is agreed:
1. The actual Commencement Date of the term of the Lease is October 31,
2001 and the termination date thereof is November 1, 1996.
2. This agreement is executed by the parties for the purpose of providing
a record of the commencement and termination dates of the term of the Lease.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first above written.
COLLEGE ROAD ASSOCIATES,
LIMITED PARTNERSHIP
BY: Z FORRESTAL CENTER, L.P.
Its Managing General Partner
ATTEST: BY: Z FORRESTAL CORP.,
Its General Partner
BY: ____________________________ BY: ____________________________
Name: Name: John Zirinsky
Title: Title: President
ATTEST: BY:
BY: ____________________________ BY: ____________________________
Name: Name:
Title: Title:
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RULES AND REGULATIONS
---------------------
Exhibit D
1. The sidewalks, halls, passages, elevators and stairways shall not be
obstructed by any of the tenants nor used by them for any other purpose than for
ingress and egress to and from their respective offices, nor shall they be used
as a waiting or lounging place for tenant's employees or those having business
with tenants. The halls, passages, elevators, stairways and roofs are not for
the use of the general public, and Landlord retains in all cases the right to
control and prevent access to any part of said Building of all persons whose
presence, in the judgement of Landlord or Landlord's employees, may be
prejudicial to the safety, character, reputation or interests of the Building
and its tenants. In case of invasion, mob, riot, public excitement or other
commotion, Landlord reserves the right to prevent access to the Building during
the continuance of same by closing the doors or otherwise, for the safety of
tenants and the protection of property in said Building. During other than
business hours, access to the Building may also be refused, unless the person
seeking admission is known by Landlord's agent in charge to have the right to
enter the Premises therein or is properly identified. In addition, the
production of a key to such premises may be required. Landlord shall in no case
be liable in damages for the admission or exclusion of any person from said
Building.
2. The floors, walls, partitions, skylights, transoms that reflect or admit
light into passageways or into any place in said Building shall not be covered
or obstructed by any of the tenants. The toilet-rooms, sinks and other water
apparatus shall not be used for any purposes other than those for which they
were constructed, and no sweepings, rubbish, rags, ashes, chemicals or refuse
shall be thrown or placed therein. Any damage resulting from such misuses or
abuse shall be borne and immediately paid by Tenant by whom or by whose
employees it shall have been caused.
3. Nothing shall be placed by tenants or their employees on the outside of the
Building.
4. No sign, advertisement or notice shall be inscribed, painted or affixed on
any part of the outside or inside of said Building, unless of such character,
color, size and material and in such places as shall be first designated by
Landlord in writing. A sign painter authorized by Landlord will do such work at
Tenant's expense.
5. Tenant will see that the windows are closed and the doors securely locked
each day before leaving the Building. Shades shall be of the material, style,
form and color adopted by Landlord for the Building, and no tenant shall put up
any that do not conform to such standards. Tenant shall have the right to
remove such shades at the expiration of the lease.
6. Tenant, their employees or others shall not make or commit any improper
noises or disturbances of any kind in the Building, nor smoke in the elevators,
mark or defile the elevators, bathrooms or interfere in any way with other
tenants or those having business in the Building. Tenants shall be liable for
all damage to the Building done by their employees. Cigar & pipe smoking will
not be permitted anywhere in the Building.
7 No carpet, rug or other article shall be hung or shaken out of any window,
and nothing shall be thrown by tenants or tenants' employees nor be allowed by
them to drop out of the windows or
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doors or down the passages or skylights of the Building; and no tenant shall
sweep or throw or permit to be swept or thrown from the Premises any dirt or
other substance into any of the corridors or halls, elevators or stairways of
the Building, or into any of the lightshafts or ventilators thereof.
8. No animals shall be kept in or about the Premises.
9. If the tenants desire to introduce signalling, telegraphic, telephonic or
other wires and instruments, Landlord will direct the electricians as to where
and how the same are to be placed; and, without such direction, no placing
boring or cutting for wires will be permitted. Landlord retains in all cases
the right to require the placing and using of such electrical protecting devices
to prevent the transmission of excessive currents of electricity into or through
the Building, to require the changing of wires and of their placing an
arrangement underground or otherwise as Landlord may direct, and further to
require compliance on the part of all using or seeking access to such wires with
such rules as Landlord may establish thereto; and, in the event of noncompliance
by tenants or by those furnishing service by or using such wires or by others
with the directions, requirements or rules, Landlord shall have the right to
immediately cut, displace and prevent the use of such wires. Notice requiring
such changing of wires and their replacing and rearrangement given by Landlord
to any company or individual furnishing service by means of such wires to any
tenant shall be regarded as notice to such tenants and shall take effect
immediately. All wires used by tenants must be clearly tagged at the
distributing boards and junction boxes and elsewhere in the Building and with
the number of the office to which said wires lead and the purpose for which said
wires respectively are used, together with the names of the company operating
same.
10. A directory in a conspicuous place on the first floor, with the names of
tenants, will be provided by Landlord at Landlord's expense.
11. No varnish, stain, paint, linoleum, oil-cloth, rubber or other air-tight
covering shall be laid or put upon the floors; nor shall articles be fastened to
or holes drilled or nails or screws driven into walls, doors or partitions; nor
shall the walls, doors or partitions be painted, papered or otherwise covered or
in any way marked or broken; nor shall any tenant use any other method of
heating than that provided by Landlord; without the written consent of Landlord,
which consent shall not be unreasonably withheld.
12. The delivery of materials and other supplies to tenants in the Building
will be permitted only under the direction, control and supervision of the
Landlord.
13. The use of rooms as sleeping apartments is prohibited.
14. All entrance doors leading from the hallways are to be kept closed at all
times.
15. For the protection of tenants, the Landlord reserves the right to refuse
the admittance to the Building between the hours of 5:30 p.m. and 8:00 a.m.,
Monday through Friday, and from 1:00 p.m. Saturday to 8:00 a.m. Monday to any
person not producing a key to such Tenant's office or suite and a pass issued
by building management upon the direction of the tenant. Tenants will instruct
the Building manager from time to time as to the number of persons to whom they
desire passes issued
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for this purpose. It will be the responsibility of the Tenant to pick up any
pass and key whenever the employment of the passholder is discontinued.
16. Tenants must use designated parking lots only during hours of building
operation. Tenant parking is restricted to main lots and is not permitted in
any other area whatsoever including visitor, delivery or fire lane areas. It is
expressly prohibited to allow overnight parking or storage of vehicles used by
employees or in the course of business without prior written consent of
Landlord.
Violation of this parking regulation will result in removal of the vehicle at
the sole cost of tenant.
17. Tenants must adhere to all recycling mandates (as they may be required by
local and state laws), and Landlord's existing established procedure (s).
18. No smoking is permitted in the Premises or any other part of the Building.
19. All deliveries to and/or from the Building must be coordinated with the
Building's Management.
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EXHIBIT E
COLLEGE PARK AT
PRINCETON FORRESTAL CENTER
JANITORIAL SPECIFICATIONS
General Cleaning
- ----------------
Cleaning Services provided five (5) days per week unless otherwise
specified.
Cleaning hours Monday through Friday, between 6:00 p.m. and before 8:00
a.m. of the following day.
On the last day of the week work will be done after 6:00 p.m. Friday, but
before 8:00 a.m. Monday.
No cleaning on holidays.
I. Office Area
-----------
Furniture and fixtures within reach will be dusted and desk tops will be
wiped clean. However, desks with loose papers on top will not be cleaned.
Window sills and baseboards to be dusted and washed when necessary.
Office wastepaper baskets will be emptied.
Cartons or refuse in excess of that which can be placed in wastebaskets
will not be removed. Tenants are required to place such unusual refuse in
trash cans.
Cleaner will not remove or clean tea or coffee cups or similar containers;
also, if such liquids are spilled in wastebaskets, the wastebaskets will be
emptied but not otherwise cleaned. All kitchen cleaning by Tenant.
Carpets will be vacuumed nightly.
All tile floors will be vacuumed nightly and wet mopped weekly.
Wipe clean all glass, brass and other bright work weekly.
Dust all pictures, charts, wall hangings monthly that are not reached in
nightly cleaning.
Dust all vertical surfaces to include doors, bucks and partitions monthly.
Dust all ventilating louvers and other such installations monthly.
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II. Lavatories
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All lavatory floors to be swept and washed with disinfectant nightly.
Tile walls and dividing partitions to be washed and disinfected weekly.
Basins, bowls, urinals to be washed and disinfected daily.
Mirrors, shelves, plumbing work, bright work, and enamel surfaces cleaned
nightly.
Waste receptacles will be emptied and cleaned and wash dispensaries to be
filled with appropriate tissues, towels, and soap nightly.
III. Main Lobby Elevators, Building Exterior and Corridors
-----------------------------------------------------
Wipe and wash all floors in Main Lobby nightly.
Wipe and/or vacuum elevator floor nightly.
Polish floors weekly in elevator.
IV: All windows interior and exterior will be cleaned once a year.
V: Tenant will comply fully with the New Jersey State Recycling Mandates.
VI: Tenant is responsible for the cleaning of Tenant's laboratory area(s),
except that Landlord shall remove Tenant's trash (including recyclables) to
the extent that the same does not exceed the amount usually attendant upon
the use of the Premises as offices.
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EXHIBIT "F"
Model Letter of Credit
----------------------
{Insert name and address of issuing bank
- ----------------------------------------
Insert date
- -----------
IRREVOCABLE LETTER OF CREDIT NO. {Insert number}
--------------
{Insert name and address of owner}
- ---------------------------------
Dear Sir:
At the request and for the account of {insert name of Tenant} located at {insert
----------------------- -------
address of Tenant} (hereinafter called "Applicant"), we hereby establish our
- ------------------
Irrevocable Letter of Credit No. {insert number} in your favor and authorize you
---------------
to draw on us up to the aggregate amount of US $ {insert amount of Letter of
---------------------------
Credit} available by your draft(s) at sight drawn on us and accompanied by the
- -------
following:
A written statement by you that:
(i) "Applicant is in default under that certain lease, dated as of {insert
-------
date of lease} between you, as Landlord, and Applicant, as Tenant (the
--------------
'Lease');" or
(ii) "Applicant has failed to deliver timely a renewal Letter of Credit as
provided in the Lease."
This Irrevocable Letter of Credit will be duly honored by us at sight upon
delivery of the statement set forth above without inquiry as to the accuracy of
such statement and regardless of whether Applicant disputes the content of such
statement.
We hereby engage with you that all drafts drawn under and in compliance with the
terms of this Irrevocable Letter of Credit will be duly honored by us if
presented at {insert address of issuing bank} no later than {insert expiration
-------------------------------- ------------------
date of Letter of Credit}, it being a condition of this Irrevocable Letter of
- -------------------------
Credit that it shall be automatically extended for periods of at least one year
from the present and each future expiration date unless, at least sixty (60)
days prior to the relevant expiration date, we notify you, by certified mail,
return receipt requested, that we elect not to extend this Irrevocable Letter of
Credit for any additional period.
This Irrevocable Letter of Credit is transferable at no charge to any transferee
of Landlord upon notice to the undersigned from you and such transferee.
This Irrevocable Letter of Credit is subject to the Uniform Customs and
Practices for Documentary Credits (1983-Rev) International Chamber of Commerce
Publication #400.
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Sincerely yours,
{Insert authorized signature}
- -----------------------------
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