EXHIBIT 10.83
XxXXXXXX ASSOCIATES LIMITED
AGREEMENT OF LEASE
LANDLORD: XxXXXXXX ASSOCIATES LIMITED
TENANT: MEDAREX, INC.
PREMISES: 6410 rentable square feet on second floor
as shown on Exhibit "B"
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BUILDING: Princeton Gateway Corporate Campus
South Building (Building "A")
000 Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
DATED: July 7, 1999
BASIC LEASE INFORMATION
Landlord: XxXxxxxx Associates Limited
a New Jersey limited partnership
c/o Xxxx X. XxXxxxxx, III, Esq.
000 Xxxxxxxxx Xxxxxx
P. O. Xxx 0000
Xxxxxxxxx, XX 00000-0000
Tenant: Medarex, Inc.
0000 Xxxxx 00 Xxxx
P. O. Xxx 000
Xxxxxxxxx, XX 00000-0000
Type of Entity: A corporation of the State of New Jersey
Definition Base Year: calendar year 1999 for the initial Term
Definition Commencement Date: on or about July 2, 1999
Definition Rentable Area of Building: 37,966 rentable square feet
Definition Rentable Area of Premises: 6,410 rentable square feet
Definition Tenant's Proportionate Share: 16.88%
Definition Termination Date: (1) Fifth anniversary of the Commencement
Date; or (2) Tenth Anniversary of the Commencement Date if
Tenant exercises its first option to renew; or (3) Fifteenth
Anniversary of the Commencement Date if Tenant exercises its
second option to renew.
Section 1.3 Number of Parking Spaces: twenty-five (25)
Section 1.3 Minimum Rent Per Year: $150,635.00
Section 1.3 Minimum Rent Per Month: $12,552.91
Article 36 Security Deposit: $25,105.83
INITIALS: /s/JFM /s/DD
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Landlord Tenant
TABLE OF CONTENTS
Basic Lease Information
1. Premises; Rent 3
2. Use 4
3. Commencement Date 5
4. Acceptance 6
5. Compliance with Laws and Insurance Requirements 6
6. Additional Rent 7
7. Rules and Regulations 10
8. Finish and Condition of Premises 11
9. Landlord's Right of Entry 11
10. Maintenance by Tenant: Landlord 12
11. Alterations by Tenant or Landlord 12
12. Assignment and Subletting 15
13. Surrender 17
14. Hold Over 17
15. Services and Utilities 18
16. Quiet Enjoyment 20
17. Default 21
18. Landlord's Rights Upon Tenant's Xxxxxxx 00
00. Landlord's Remedies Cumulative; Expenses 24
20. Subordination and Estoppel 25
21. Damage by Fire or Other Casualty 26
22. Mutual Waiver of Subrogation 27
23. Condemnation 28
24. Changes Surrounding Building 28
25. Notices 28
26. No Waiver 29
27. Landlord's Liability 30
28. Indemnification; Tenant's Liability 30
29. Tenant's Insurance 31
30. Mechanics' Lien 32
31. Definition of Landlord 32
32. Definition of Tenant 32
33. No Personal Liability 33
34. Directory 33
35. Environmental Matters 33
36. Security 34
37. Intentionally Omitted 35
38. Miscellaneous 35
39. Renewal Option 37
40. Property 38
41. Obligation of Tenant to Lease Contiguous Space 39
42. Xxx-xxxxxxxxxxx 00
00. Consents, Approvals, Computations And Determinations 39
44. Landlords' Representations and Warranties 39
EXHIBITS
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EXHIBIT "A-1" Description of the Real Property
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EXHIBIT "A-2" Site Plan of the Real Property
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EXHIBIT "B" Floor Plan of the Premises
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EXHIBIT "C" Rules and Regulations
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EXHIBIT "D" Cleaning Specifications
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EXHIBIT "E" Operating Expense Exclusions
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EXHIBIT "F" Minimum Rent for Renewal Period
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EXHIBIT "G" Property
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THIS AGREEMENT OF LEASE ("Lease") made on the 7/th/ day of July, 1999,
between XxXXXXXX ASSOCIATES LIMITED, a New Jersey limited partnership, having an
address c/o Xxxx X. XxXxxxxx, III, Esq., 000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Princeton, N.J. 08543-2329 ("Landlord"), and MEDAREX, Inc. a New Jersey
corporation, having an office and principal place of business at 0000 Xxxxx 00
Xxxx, X.X. Xxx 000, Xxxxxxxxx, X.X. 00000 ("Tenant").
PRELIMINARY STATEMENT
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Landlord is the owner in fee simple of the tract of land situate, lying and
being in the Township of Princeton, Xxxxxx County, New Jersey, and being known
and designated on the official tax maps of the Township of Princeton as Lot 160,
Section 41.04, upon which Landlord has constructed an office building containing
approximately 37,966 rentable square feet of space and other related
improvements to be known as South Building (Building "A") of Princeton Gateway
Corporate Campus. Tenant desires to lease space in said building in accordance
with, and subject to, the provisions of this Lease.
NOW, THEREFORE, Landlord and Tenant agree as follows:
DEFINITIONS
For all purposes of this Lease and all agreements supplemental thereto or
modifying this Lease, the following terms shall have the meanings herein
specified:
"Additional Rent" shall mean all sums payable by Tenant to Landlord pursuant
to various articles of this Lease.
"Alterations" shall have the meaning given to such term in Section 11.1 of
this Lease.
"Base Charge" shall have the meaning given such term in Section 6.1.3.
"Base Year" shall mean 1999 for the initial Term of this Lease, 2004 for the
First Option Period, if any, and 2009 for the Second Option Period, if any.
"Broker" shall mean Xxxxxxxx Associates, Inc. and Xxxxxx, Xxxxx & Xxxxxxxxx,
Inc.
"Building" shall mean the building known as South Building (Building"A") of
Princeton Gateway Corporate Campus.
"Building Holidays" shall mean such holidays as are from time to time
customarily celebrated by United Stated federal offices.
"Business Hours" shall mean 8:00 a.m. to 6:00 p.m. on Mondays through
Fridays, excluding Building Holidays.
"Commencement Date" shall mean on or about July 2, 1999.
"Common Area" shall mean the portions of the Real Property which have not,
at the time in question, been leased for the exclusive use by and/or possession
of a specific tenant of the
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Building, including, without limitation, the land and facilities utilized as
parking areas, access and perimeter roads; landscaped areas; exterior walks,
stairways and ramps; interior corridors, elevators, stairs, arcades and
balconies; storm and sanitary sewers, utility lines and the like; and wash
rooms, lavatories and other public facilities. The term "Common Area" shall not
include any portion of the Real Property that is customarily leased for the
exclusive use by and/or possession of a tenant, but which, at the time in
question, is vacant.
"Excusable Delay" shall mean a delay caused by governmental action, or lack
thereof, shortages or unavailability of materials and/or supplies, labor
disputes, strikes, slow downs, job actions, picketing, secondary boycotts, fire
or other casualty, delays in transportation, acts of God, requests, acts or
failures to act of any governmental agencies or authorities, acts of declared or
undeclared war, public disorder, riot or civil commotion, or by anything else
beyond the reasonable control of Landlord, including delay caused directly or
indirectly by Tenant or Tenant's Visitors.
"Governmental Authority" shall mean Princeton Township, Xxxxxx County, State
of New Jersey or federal government, or any agency or quasi-governmental agency,
or any fire insurance rating organization having jurisdiction or claiming
jurisdiction over the Real Property or the use of operation thereof.
"Landlord's Operating Expenses" shall have the meaning given such term in
Section 6.1 of this Lease.
"Landlord's Statement" shall have the meaning given such term in Section 6.3
of this Lease.
"Lease" or "this Lease" consists of this Lease and Exhibits "A-1" through
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"G" attached hereto and made a part hereof.
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"Minimum Rent" shall mean the fixed rental payable by Tenant to Landlord in
the amounts set forth on the Basic Lease information sheet.
"Monthly Payment" shall have the meaning given such term in Section 6.4.
"Premises" shall mean the portion of the Building shown as the area marked
on the floor plan of the Building as the Medarex 6410 sq. ft., a copy of this
floor plan is annexed hereto as Exhibit "B" and made a part hereof.
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"Project" shall mean only the South Building (Building "A") of the
Princeton Gateway Corporate Campus.
"Projected Expenses" shall have the meaning given such a term in Section
6.3.
"Real Property" shall mean collectively the land upon which the Building is
located as particularly described in Exhibits "A-1" and "A-2" hereto and made a
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part hereof, and the Building and all other improvements thereon, known as Lot
160, Section 41.04 on the Princeton Township Tax and Assessment Map.
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"Rentable Area of the Building" shall mean 37,966 square feet for the
purposes of this Lease.
"Rentable Area of the Premises" shall mean 6,410 square feet for the
purposes of this Lease.
"Rules and Regulations" shall mean the Rules and Regulations set forth in
Exhibit "C" annexed hereto and made a part hereof.
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"Structural Repairs" shall mean repairs to the roof, foundation, floors and
permanent exterior walls and support columns of the Building.
"Taxes" shall have the meaning given such term in Section 6.1 of this Lease.
"Tenant's Electric" shall have the meaning given such term in Section 15.2.1
hereof.
"Tenant's Proportionate Share" shall mean 16.88%.
"Tenant's Visitors" shall mean persons invited by Tenant into the Premises
as guests or doing lawful business with Tenant in the course of Tenant's
business including without limitation Tenant's agents, servants, employees,
invitees and licensees.
"Term" shall mean the time period commencing on the Commencement Date and
terminating on the Termination Date.
"Termination Date" shall mean (i) the day immediately preceding the fifth
(5/th/) anniversary of the Commencement Date, or (ii) the day immediately
preceding the tenth (10/th/) anniversary of the Commencement Date if Tenant
extends the Term in accordance with Article 39.1 hereof, or (iii) the day
immediately preceding the fifteenth anniversary of the Commencement Date if
Tenant extends the Term in accordance with Article 39.2 hereof; or (iv) such
earlier date upon which this Lease may expire or be terminated pursuant to any
provision of this Lease or pursuant to law.
ARTICLE 1
PREMISES; RENT
1.1 Landlord, for and in consideration of the covenants hereinafter
contained and made on the part of Tenant, hereby leases to Tenant and Tenant
hereby hires from Landlord the Premises for the Term, subject, however, to the
terms and conditions of this Lease.
1.2 The leasing of the Premises to and by Tenant includes the non-exclusive
right to the use of twenty-five (25) automobile parking spaces. Landlord, in
its sole judgment, shall (i) be fair and equitable to all tenants in regulating
parking; and (ii) throughout the Term, make parking available to Tenant on the
same terms and conditions then available to other tenants.
1.3 Tenant hereby covenants and agrees to pay (i) the Minimum Rent in equal
monthly installments on the first day of each calendar month during the Term,
in advance, in the amount
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set forth on the Basic Lease Information sheet (subject to the rent adjustment
set forth in Section 1.7 of this Lease); (ii) all Additional Rent as herein
provided; and (iii) Tenant's Electric as defined in Section 15.2.1 of this
Lease. Tenant covenants that all Minimum Rent and Additional Rent shall be
promptly paid to Landlord at its office or such other place as Landlord may from
time to time designate, without any notice, demand, abatement, off-set, set-off,
defense, counterclaim, suspension, deferment, deduction or diminution of any
kind whatsoever, except as expressly provided in this Lese. Except as otherwise
expressly provided herein, this Lease shall not terminate, nor shall Tenant have
any right to terminate or avoid this Lease, nor shall the obligations and
liabilities of Tenant hereunder be in any way affected for any reason. The
obligations of Tenant hereunder shall be separate and independent covenants and
agreements. If the Commencement Date or Termination Date shall fall on a day
other than the first day of a month, the Minimum Rent and any Additional Rent
payable hereunder shall be apportioned for the number of days in that month that
are within the term.
1.4 Any install or installments of Minimum Rent or Additional Rent accruing
hereunder, and all other sums payable by Tenant hereunder, which are not paid
within ten (10) days of the date when due shall be subject to a late charge
equal to four percent (4%) of the amount unpaid and shall bear interest from the
date when due at a rate per annum equal to two percent (2%) over the rate of
interest announced publicly by Citibank, N.A. (or its successor), in New York,
New York, from time to time, as its base rent (commonly referred to as its prime
commercial lending rate or "Prime Rate"), which interest shall be deemed
Additional Rent hereunder, payable upon demand therefor by Landlord.
1.5 Landlord shall have all the rights and remedies for the collection of
Additional Rent as are available to Landlord for the collection of the Minimum
Rent pursuant to the terms of this Lease.
1.6 Upon execution of this Lease by Tenant, Tenant shall pay to Landlord the
first month's Minimum Rent and Additional Rent (if any) plus the security
deposit.
ARTICLE 2
USE
2.1 The Premises shall be used by Tenant only for executive and
administrative offices and for no other use or purpose.
2.2 Tenant shall not use, or suffer or permit the use of, the Premises or
any part thereof in any manner or for any purpose or do, bring or keep anything,
or suffer or permit anything to be done, brought or kept therein (including, but
not limited to, the installation or operation of any electrical, electronic or
other equipment, but not including word processors and personal computers) (i)
which violates any covenant, agreement, term, provision or condition of this
Lease or is unlawful or in contravention of the certificate of occupancy for the
Building or for the Premises, or is a contravention of any legal, zoning or
insurance requirement to which the Building or the Premises is subject, or (ii)
which would alter, affect or interfere with or which would overload or could
cause an overload of the electrical or mechanical systems or any other component
of the Building or which would exceed the floor load per square foot which the
floor was designed to carry and which is allowed by law, or (iii) which in the
reasonable judgment of
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the Landlord may in any way impair or interfere with the proper and economic
heating or air conditioning of the Building. Tenant shall suffer or permit the
Building or any component thereof to be used in any manner or anything to be
done therein or anything to be brought into or kept thereon which, in the
judgment of Landlord, would in any way impair or tend to impair or exceed the
design criteria, the structural integrity, character or appearance of the
Building, or any system or component thereof, or result in the use of the
Building, or any component thereof, in a manner or for a purpose not intended.
Tenant shall not use, or suffer or permit the use of, the Premises or any part
thereof in any manner, or do, or suffer or permit the doing of, anything therein
or in connection with the Tenant's business or advertising which, in the
reasonable judgment of the Landlord, may be prejudicial to the business of
Landlord or the reputation of the Premises of the Building. Tenant is
responsible for complying with all provisions of the Princeton Township Zoning
ordinance.
2.3 Tenant shall take occupancy and commence business in the Premises on or
before ninety (90) days after the Commencement Date. Prior to occupancy,
Tenants may undertake some improvement to the Premises in accordance with
Article 7 of this Lease.
ARTICLE 3
COMMENCEMENT DATE
3.1 Landlord estimates that the Premises will be ready for Tenant's
occupancy (on an "as is" basis) on the Commencement Date. Landlord represents
that the Premises may be occupied by Tenant on an "as is" basis pursuant to the
certificate of occupancy previously obtained for the Premises. If Tenant
performs the alterations pursuant to Section 7.4 of this Lease, Tenant must
obtain a new Certificate of Occupancy for the Premises, at Tenant's sole cost
and expense and at no expense to Landlord. If the Premises are not ready for
occupancy on the Commencement Date because the existing tenant of the Premises
has not vacated the Premises, the Commencement Date shall be the day after the
Effective Date, the Rent shall be adjusted accordingly and this Lease shall
nevertheless continue in full force and effect. Tenant shall have the right to
rescind, cancel or terminate the same, but Landlord shall not be liable for
damages, if any, sustained by Tenant by reason of Tenant's inability to obtain
possession thereof on or before September 1, 1999.
3.2 Tenant acknowledges that as of July 1, 1999 the Premises were occupied
by Technology Management & Funding ("TMF"). TMF has agreed to vacate the
Premises on or before July 2, 1999. In the event Landlord is unable to deliver
possession of the Premises by July 2, 1999 as a result of TMF remaining in the
Premises, such failure shall not effect the validity of this Lease. Landlord
shall not be liable for any damages which Tenant may incur as a result of the
delay in obtaining possession of the Premises. In such event, Landlord agrees
to take reasonable action to acquire possession of the Premises as soon as
reasonably possible but in any event prior to September 1, 1999 as set forth in
Section 3.1 hereof. For the purposes of this Lease, the term "Effective Date"
shall mean the date on which Landlord delivers possession of the Premises to
Tenant, free of all tenancies and in broom clean condition. If Landlord is
unable to deliver occupancy on or before July 2, 1999, the Commencement Date
shall be the day after the Effective Date, subject to Tenant's right to
terminate pursuant to Section 3.1.
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ARTICLE 4
ACCEPTANCE
When Tenant takes possession of the Premises, Tenant shall be deemed to have
accepted the Premises as being satisfactory and in good condition as of the date
of such possession, subject to latent defects.
ARTICLE 5
COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS
5.1 Tenant shall comply with all laws, rules, regulations and ordinances of
any Governmental Authority having or claiming jurisdiction over the Building.
Tenant shall not do or permit anything to be done in or to the Premises, or
bring or keep anything therein which will, in any way, be in conflict with the
certificate of occupancy for the Building, increase the cost of fire or public
liability insurance on the Real Property, or invalidate or conflict with the
fire insurance or public liability insurance policies covering the Real Property
or any personal property kept therein, by Landlord, or obstruct or interfere
with the rights of the Landlord or of other tenants, or in any other way injure
or annoy Landlord or other tenants, or subject Landlord to any liability for
injury to persons or damage to property, or interfere with the good order of the
Building, or conflict with the present or future laws, rules or regulations of
any Governmental Authority. Any increase in Landlord's Operating Expenses which
is attributable to Tenant's use or manner of use of the Premises different from
the use permitted in Section 2.1 hereof (such as any increase in fire insurance
premiums on the Building or its contents caused by the use or occupancy of the
Premises by Tenant other than as permitted in Section 2.1) and any expense or
cost incurred in consequence of the negligence, carelessness or willful action
of Tenant, shall be Additional Rent and paid to Landlord within ten (10) days of
the date of demand therefor made by Landlord to Tenant. Anything to the
contrary herein notwithstanding, Tenant shall not be required to comply, at its
own expense, with requirements of law or to pay for increases in Operating
Expenses unless such requirements are violated by or such increases are caused
by actions taken by Tenant or by Tenant's use of the Premises in a manner
different from the normal use thereof for the purposes described in Section 2.1.
5.2 Tenant will not cause or permit any "hazardous substance" or "hazardous
waste" as such terms are defined in the Environmental Cleanup Responsibility Act
of the State of New Jersey as amended by the New Jersey Industrial Site Recovery
Act, N.J.S.A. 13:1K-6 et seq. ("ISRA") to be brought, kept or stored within the
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Premises or any portion thereof (except in de minimus quantities utilized in
common maintenance, cleaning and operation of an office use, in accordance with
law) and will not engage in or permit any other person to engage in any
activity, operation or business upon the Premises or any portion thereof which
involves the generation, manufacture, refining, transportation, treatment,
storage, handling or disposal of hazardous substances or hazardous wastes, above
or below ground, or which would or could result in Tenant or the Premises being
subject to the provisions of ISRA. In the event Tenant fails to comply with
this Section, Tenant shall immediately furnish to Landlord evidence satisfactory
to Landlord of the cessation of such activity, operation or business and that
Tenant has complied with all applicable provisions of ISRA.
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5.3 Tenant shall pay to the Princeton Township Bureau of Fire Safety all
inspection fees for the Premises and shall correct, at Tenant's cost and
expenses, any violations of the Uniform Fire Code, N.J.A.C. 5:70-1 et seq. due
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to Tenant's act or negligence. Landlord shall deliver the Premises to Tenant in
compliance with all laws and ordinances of any Governmental Authority.
ARTICLE 6
ADDITIONAL RENT
6.1 For the purposes of this Lease, the following terms shall have the
meanings set forth below:
6.1.1 "Taxes" shall mean all real estate taxes and assessments or
substitutes therefor or supplements thereto, upon, applicable,
attributable or assessed against the Real Property or any part
thereof, or any improvement thereon owned by Landlord and used in
connection with the operation of the Building. If and to the extent
that due to a change in the method of taxation or assessment any
franchise, capital stock, capital, rent, income, profit or other tax
or charge shall be substituted by the applicable taxing authority
for the Taxes nor or hereafter imposed upon the Real Property, such
franchise, capital stock, capital, rent, income, profit, or other
tax or charge shall be deemed included in the term "Taxes" for the
purposes of this Article, provided, however, that the amount of such
tax, assessment, levy, imposition, charge or fee deemed to be
included in the term "Taxes" shall be determined as if the Real
Property were the only asset of Landlord and as if the rent received
therefrom were the only income of Landlord.
6.1.2 "Landlord's Operating Expenses" shall mean those costs or
expenses paid by Landlord for operating, managing, maintaining and
repairing the Real Property, including but not limited to the cost
of Common Area electricity, water, steam, fuel, window cleaning,
heating, cooling, janitorial service, and exterminating, insurance
of all kinds carried in good faith by Landlord and applicable to the
Real Property (including, without limitation, rent insurance), snow
removal, maintenance and cleaning of the parking lot, landscape
maintenance, cost of surveys of electricity consumption, repairs of
any kind for which Landlord is not reimbursed, painting of Common
Areas, replacement of worn out mechanical or damaged equipment,
uniforms, management fees, costs of maintenance and service
agreements, fire protection and alarm systems and equipment,
building supplies, sundries, sales or use taxes on supplies or
services, security guard services and/or alarm systems and
equipment, wages, salaries, fringe benefits and other labor costs of
all persons engaged by Landlord for the operation, maintenance and
repair of the Real Property, payroll taxes and workmen's
compensation for such persons, legal and accounting expenses (except
legal expenses incurred in preparing leases or enforcing the terms
of Leases), licenses, permits and other governmental charges, and
any other expense or cost which, in accordance with generally
accepted accounting principles and
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the standard management practices for office buildings comparable to
the Building, would be considered as an expense of operating,
managing, maintaining or repairing the Real Property. Excluded from
Landlord's Operating Expenses (unless otherwise herein provided) are
the exclusions set forth on Exhibit "F" hereof and Taxes, capital
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improvement costs, costs reimbursed by insurance, the cost of work
or services performed specifically for any other tenant in the
Building whether or not such tenant reimburses Landlord, costs in
connection with preparing space for a new tenant, advertising
expenses, real estate brokers' commissions, franchise, transfer,
inheritance or capital stock taxes or other taxes imposed upon or
measured by the income or profits of Landlord, administrative wages
and salaries or any other general and administrative overhead of
Landlord and the cost of any electricity furnished to any space in
the Building occupied by other tenants.
6.1.3 "Base Year" shall mean 1999. "Base Charge" shall mean Tenant's
Proportionate Share of the aggregate of Taxes and Landlord's
Operating Expenses for the Base Year.
6.2 Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate
Share of the amount by which the aggregate of Taxes and Landlord's Operating
Expenses for any calendar year during the Term of this Lease exceed the Base
Charge, provided, however, that if any special assessments may be payable in
installments, Landlord shall elect to pay same over the longest period allowed
by law. Tenant's Proportionate Share of said Taxes and Landlord's Operating
Expenses for less than a year shall be prorated and apportioned. In the event
the Building is less than 100% occupied during any calendar year during the
Term, the Taxes and Landlord's Operating Expenses for each such year shall be
normalized and annualized as if the Building were 100% occupied during each such
year.
6.3 On or about April 1, 2000, and thereafter within ninety (90) days
following the first day of each calendar year within the Term, Landlord shall
determine or estimate the Taxes and the Landlord's Operating Expenses for such
calendar year (the "Projected Expenses") and shall submit such information to
Tenant in a written statement ("Landlord's Statement").
6.4 Commencing on the first day of the month next succeeding the calendar
month in which Landlord submitted any Landlord's Statement, and continuing
thereafter until Landlord renders the next Landlord's Statement, Tenant shall
pay to Landlord on account of its obligation under Section 6.2 of this Lease, a
sum (the "Monthly Payment") equal to one-twelfth (1/12) of Tenant's
Proportionate Share of the amount by which the Projected Expenses for such
calendar year exceed the Base Charge. Tenant's first Monthly Payment after
receipt of Landlord's Statement shall be accompanied by the payment of an amount
equal ro the product of the number of full months, if any, within the calendar
year which shall have elapsed prior to such first Monthly Payment, times the
Monthly Payment minus any Additional Rent already paid by Tenant on account of
its obligation under Section 6.2 of this Lease for such calendar year. All
payments required to be made pursuant to this Section shall be deemed Additional
Rent.
6.5 Each Landlord's Statement shall reconcile the payments made by Tenant
pursuant to the preceding Landlord's Statement with Tenant's Proportionate Share
of the actual amount by which the Taxes and the Landlord's Operating Expenses
for said calendar year in question
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exceed the Base Charge. Any balance due to Landlord shall be paid by Tenant
within thirty (30) days of Tenant's receipt of Landlord's Statement and any
surplus shall be applied by Landlord against the next accruing monthly
installment of Additional Rent, or if this Lease shall have expired, such
surplus shall be refunded to Tenant within thirty (30) days of the Termination
Date; provided, however, that if this Lease shall have expired as a result of a
default by Tenant, Landlord shall have the right to retain such surplus to the
extent Tenant owes any Minimum Rent or Additional Rent.
6.6
6.6.1 If Landlord shall receive any refund of Taxes in respect of a
calendar year and if Tenant shall have paid Additional Rent based on
the Taxes paid prior to the refund, Landlord shall deduct from such
tax refund any expenses reasonably incurred in obtaining such tax
refund, including, but not limited to, attorney's fees and appraisal
fees, and out of the remaining balance of such tax refund, Landlord
shall credit to Tenant Tenant's Proportionate Share of such refund.
Any expenses reasonably incurred by Landlord in contesting the
validity or the amount of the assessed valuation of the Real
Property or any Taxes of any year after the year of the Real Estate
Tax Base, to the extent not offset by a tax refund, shall be
included as an item of Taxes for the tax year in which such contest
shall be finally determined for the purpose of computing the
Additional Rent due Landlord or any credit due to Tenant hereunder.
Notwithstanding anything to the contrary contained herein, Tenant
shall not have the right to contest or appeal the validity or the
amount of the assessed valuation of the Real Property or any Taxes
without the prior written consent of Landlord.
6.6.2 While proceedings for the reduction in assessed valuation for any
year are pending, the computation and payment of Additional Rent
shall be based upon the original assessments for such year.
6.7 Tenant shall also pay to Landlord upon demand the amount of all
assessments, impositions of taxes made, levied or assessed against or imposed
upon any and all improvements in, on or about the Premises which were made by or
on behalf of Tenant.
6.8 Landlord's Operating Expenses shall include Landlord's cost or expense,
together with the interest factor described below, for any capital improvement
made to the Building by Landlord which results in a reduction of Landlord's
Operating Expenses through a reduction in the consumption or use of any item
enumerated as such in Section 6.1.2 of this Lease. The interest and
amortization expense shall be attributable to each respective calendar year or
portion thereof within the term of this Lease from the date of completion of the
capital improvement, but the portion thereof included in Landlord's Operating
Expense for any calendar year within the Term shall not exceed the reduction in
Landlord's Operating Expenses for said year resulting from such capital
improvement, as calculated by Landlord. The capital improvements referred to in
this Section shall be amortized on a straight line basis over such period as
permitted by the Internal Revenue Code of 1986, as the same may be amended from
time to time, and interest on the unamortized balance shall be computed at a
rate per annum equal to one percent (1%) over the rate of interest announced
publicly by Citibank, N.A. (or its
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successor) in New York, New York, from time to time, as its base rate (commonly
referred to as its prime commercial lending rate).
6.9 Tenant or its representative shall have the right to examine Landlord's
books and records with respect to the items in the foregoing Landlord's
Statement during normal business at any time within thirty (30) days following
the delivery by Landlord to Tenant of such Landlord's Statement. Unless Tenant
shall take written exception to any item contained therein within thirty (30)
days after the delivery of same, such Landlord's Statement shall be considered
as final and accepted by Tenant. If Tenant disputes such Landlord's Statement,
Tenant shall pay the monies set forth thereon as a condition precedent to
contesting said obligation.
6.10 Additional Rent chargeable under this Article 6 shall be prorated for
the final year of the Term if such year covers a period of less than twelve (12)
months. In no event shall any adjustment in Tenant's obligation to pay
Additional Rent under this Article 6 result in a decrease in the Minimum Rent
payable hereunder. Tenant's obligation to pay Additional Rent and Landlord's
Obligation to credit to Tenant any amount referred to in this Article 6 for the
final year of the Term shall survive the Termination Date or earlier expiration
of this Lease.
6.11 The provisions of Section 26.4 of this Lease shall apply to Landlord's
Statement.
6.12 In addition to reimbursing Landlord for Tenant's Proportionate Share
of Landlord's Operating Expenses and Taxes, Tenant shall reimburse Landlord for
the cost of work or services performed specifically for the Tenant. In the
event Landlord does not provide certain services for all the tenants in the
Building (for example cleaning services) during any calendar year during the
Term, Landlord's Operating Expense for each such year shall be normalized and
annualized as if Landlord provided such services to all tenants in the Building
during each such year.
ARTICLE 7
FINISH AND CONDITION OF PREMISES
7.1 Other than constructing a demising wall and painting the Premises (which
Landlord shall do at Landlord's expense prior to Tenant's occupancy of the
Premises), Tenant hereby takes the Premises and each fixture and other item
constituting a portion thereof AS IS, and Tenant acknowledges that neither
Landlord (whether acting as landlord hereunder of in any other capacity) nor any
agent or representative of Landlord has made any representation or warranty,
express or implied, with respect to the Premises.
7.2 In performing the Alterations pursuant to Section 7.4 of this Lease
Landlord shall obtain, at its expense, a certificate of occupancy for the
Premises permitting Tenant to occupy the Premises for the purposes permitted in
this Lease. Tenant shall obtain, at its expense, all other permits, licenses or
authorizations of any nature required in connection with the operation of
Tenant's business at the Premises.
7.3 In performing the work necessary to obtain a certificate of occupancy,
Landlord and Tenant shall comply with the provisions of Article 11 of this
Lease.
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7.4 Prior to Tenant's occupancy of the Premises, Landlord shall, at
Landlord's cost, paint the Premises and put in a demising wall of approximately
three feet in width as shown on Exhibit B to separate the Premises from the
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adjacent space.
ARTICLE 8
RULES AND REGULATIONS
Tenant and Tenant's Visitors shall comply with the Rules and Regulations
with respect to the Real Property which are set forth in Exhibit "C" annexed to
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this Lease and are expressly made a part hereof. Landlord shall have the right
to make reasonable amendments thereto from time to time for the safety, care and
cleanliness of the Real Property, the preservation of good order therein and the
general convenience of all the tenants, and Tenant shall comply with such
amended Rules and Regulations after twenty (20) days' written notice thereof
from Landlord. Landlord shall enforce the Rules and Regulations in a non-
discriminatory manner.
ARTICLE 9
LANDLORD'S RIGHT OF ENTRY
9.1 Landlord and Landlord's agents and representatives shall have the right
to enter into or upon the Premises, or any part thereof upon reasonable notice
(which shall be at least 24 hours)at all reasonable hours for any reasonable
purpose, including but not limited to the following purposes: (1) examining the
Premises; (2) making such repairs or alterations therein as may be necessary in
Landlord's sole judgment for the safety and preservation of the Building or the
Premises; (3) erecting, maintaining, repairing or replacing wires, cables,
conduits, vents or plumbing equipment running in, to or through the Premises;
(4) conducting surveys of electric energy consumption; (5) (within the last 9
months of the term or any renewal) showing the Premises to prospective new
tenants; and (6) showing the Premises during the Term to any mortgagees or
prospective purchasers of the Real Property.
9.2 Landlord may enter upon the Premises at any time in case of emergency
without prior notice to Tenant.
9.3 Landlord, in exercising any of its rights under this Article 9, shall
not be deemed guilty or an eviction, partial eviction, constructive eviction of
disturbance of Tenant's use or possession of the Premises and shall not be
liable to Tenant for same; provided Landlord complies with Section 9.4 of this
Lease.
9.4 All work inspections and work performed by or on behalf of Landlord in
or on the Premises pursuant to this Article 9 shall be performed with as little
inconvenience to Tenant's business as is reasonably possible; provided, however,
Landlord shall not be required to conduct such inspections or work after
Tenant's business hours or on weekends.
9.5 Tenant shall not change any locks or install any additional locks on
doors entering into the Premises without the consent of Landlord, and if any
change is made, a copy of any such lock key shall be given to Landlord. If in
an emergency Landlord is unable to gain entry to the Premises by unlocking entry
doors thereto, Landlord may force or otherwise enter the
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Premises without liability to Tenant for any damage resulting directly or
indirectly therefrom. Tenant shall be responsible for all damages created or
caused by its failure to give the Landlord a copy of any key to any lock
installed by Tenant controlling entry to the Premises.
ARTICLE 10
MAINTENANCE BY TENANT; LANDLORD
10.1 Tenant shall take good care of the Premises throughout the Term and
maintain and preserve same in the condition delivered to Tenant on the
Commencement Date, except for normal wear and tear. Tenant shall not injure,
overload, deface or commit waste of the Premises. Tenant shall be responsible
for all injury or damage of any kind or character to the Real Property,
including the windows, floors, walls, ceilings, lights, electrical equipment and
heating, ventilating and air-conditioning equipment, caused by Tenant's
negligence or the negligence of Tenant's Visitors. Landlord shall repair the
same and Tenant shall pay the costs incurred therefor to Landlord immediately
upon demands as Additional Rent. All repairs, replacements and improvements to
be made by Tenant under this Article shall be performed in a good and xxxxxxx-
like manner, shall be at least equal in quality, utility and usefulness to the
original work, shall be of first class, modern character, and shall not diminish
the overall value of the Real Property. In making such repairs, Tenant shall
have reasonable access to the Common Areas of the Building, including exterior
areas. Tenant's obligations under this Section 10.1 are subject to the
provisions of Article 21 in the event of damage or destruction by fire or other
casualty.
10.2 Landlord shall be responsible for all Structural Repairs (except those
resulting from damage caused by the negligence of Tenant or the negligence of
Tenant's Visitors) and shall maintain, repair and replace all plumbing, heating,
air conditioning, electrical and mechanical fixtures (exclusive of (i) starters,
ballasts, fluorescent lamps and (ii) electrical and mechanical fixtures
installed by Tenant) which shall be standard for the Building, when required,
and maintain and make repairs to the parking area and the exterior of the
Building, except those repairs or replacements arising from the negligence of
Tenant or Tenant's Visitors. Any work required or undertaken by Landlord under
this Article 10 or other provision of this Lease shall be performed with
commercially reasonable due diligence. Any repairs made by Landlord under this
Section 10.2 shall be free of any claim against Tenant by Landlord, or anyone
claiming through Landlord, for the cost of any repairs for which Landlord is
covered by insurance.
ARTICLE 11
ALTERATIONS BY TENANT OR LANDLORD
11.1
11.1.1 Tenant shall not make or perform, or permit the making or
performance of any alterations or improvements, additions or
other physical changes in or about the Premises (referred to,
collectively, as "Alterations") without Landlord's prior
consent. Landlord shall not unreasonably withholds its consent
(so long as there is no default by Tenant under this Lease) to
interior non-structural Alterations provided the aggregate
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cost of such Alterations does not exceed $25,000.00 and provided
such Alterations do not affect, alter, interfere with or disrupt
any of the electrical, mechanical, plumbing, heating, air
conditioning, ventilating or other systems of the Building nor
affect the outside appearance or roof of any structural element
of the Building. All Alterations shall be made and performed in
conformity with municipal and state building standards;
Alterations shall be made only by contractors or mechanics
utilizing labor approved by Landlord, which approval Landlord
shall not unreasonably withheld or delayed. No Alterations shall
be made to the partition separating the Premises and the public
corridors or to the entrance doors of the Premises. No
alteration shall affect any part of the Building other than the
Premises or adversely affect any service required to the
furnished by Landlord to Tenant or to any other tenant or
occupant of the Building or reduce the value or utility of the
Building. No Alteration shall affect the outside appearance or
the strength of the Building or any of its structural parts. All
business machines and mechanical equipment shall be placed and
maintained by Tenant in settings sufficient, in Landlord's
judgment, to absorb and prevent vibration, noise and annoyance
to other tenants or occupants of the Building. Tenant shall
submit to Landlord detailed plans and specifications (including
layout, architectural, mechanical and structural drawings) for
each proposed Alteration and shall not commence any such
Alteration without first obtaining Landlord's written approval
of such plans and specifications. Prior to the commencement of
each proposed Alteration, Tenant shall furnish to Landlord
duplicate original policies of worker's compensation insurance
covering all persons to be employed in connection with such
Alteration, including those to be employed by all contractors
and subcontractors, and of comprehensive public liability
insurance (including property damage coverage) in which Landlord
shall be named as insured, which policies shall be issued by
companies acceptable to Landlord, and shall be in form and
amounts satisfactory to Landlord and shall be maintained by
Tenant until the completion of such Alteration. All electrical
and air conditioning certificates, and all other permits,
approvals and certificates required by all Governmental
Authorities shall in a timely manner be obtained by Tenant at
Tenant's sole cost and expense and submitted to Landlord.
Notwithstanding Landlord's approval of plans and specifications
for any Alteration, all Alterations shall be made and performed
in ful compliance with all applicable laws, orders and
regulations of Governmental Authorities and all building codes,
rules and regulations and the Rules and Regulations of this
Lease. All materials and equipment to be incorporated into the
Premises as a result of all Alterations shall be new and of
first quality. No such materials or equipment shall be subject
to any lien, encumbrance, chattel mortgage or title retention or
security agreement, and all Alterations shall be made and
performed in a good and workmanlike manner. Landlord shall
promptly respond to Tenant's submissions pursuant to this
Article 11.
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11.1.2 Tenant shall not make any addition, improvement or alteration of
the Premises having an aggregate cost in excess of $25,000.00
("Major Work") unless (i) Tenant submits to Landlord detailed
plans and specifications therefor and Landlord approves such
plans and specifications in writing (which such approval shall
be at Landlord's sole and absolute discretion) and (ii) all of
the conditions specified in Sections 2.2 and 11.1.1 are
satisfied in connection with the Major Work. Tenant shall obtain
bids from independent, licensed contractors reasonably
acceptable to Landlord utilizing qualified labor.
11.2 Tenant shall not, at any time prior to or during the Term, directly or
indirectly employ or permit the employment of any contractor, mechanic or
laborer in the Premises, whether in connection with any Alteration or otherwise,
if such employment will interfere or cause any conflict with other contractors,
mechanics, or laborers engaged in the construction, maintenance or operation of
the Building by Landlord, Tenant or others. In the event of any such
interference or conflict, Tenant, upon demand of Landlord, shall cause all
contractors, mechanics or laborers causing such interference or conflict to
leave the Building immediately.
11.3 All Alterations permanently affixed to or comprising a portion of the
Building shall, upon installation, become the property of Landlord and shall
remain upon and be surrendered with the Premises, unless Tenant procures from
Landlord no later than thirty (30) days prior to the Termination Date or earlier
expiration of this Lease, Landlord's consent to remove the same. If Landlord so
consents to the removal of any Alterations, the same shall be removed from the
Premises by Tenant prior to the Termination Date or earlier expiration of this
Lease and the Premises restored to the condition existing prior to the
installation of such Alterations at Tenant's sole expense. Nothing in this
Article shall be construed to give Landlord title to or to prevent Tenant's
removal of trade fixtures or moveable office furniture and equipment. Upon
removal of any such items form the Premises or upon removal of any other
installation as may be permitted by Landlord, Tenant shall immediately and at
its expense repair any damage to the Premises or the Real Property incurred
during such removal and restore the Premises to the condition existing prior to
the installation. All property permitted or required to be removed by Tenant at
the end of the Term remaining on the Premises after the Termination Date shall
be deemed abandoned to Landlord and may be removed from the Premises by Landlord
at Tenant's expense, and Landlord shall have no duty, obligation or liability to
Tenant with respect to such property.
11.4 Landlord reserves the right to make changes, alterations, additions,
improvements, repairs or replacements in or to the Building (including the
Premises) and the fixtures and equipment thereof, as well as in or to the street
entrances, halls, passages, elevators, escalators and stairways and other parts
of the Building, and to erect, maintain and use pipes, ducts and conduits in and
through the Premises, all as it may reasonably deem necessary or desirable;
provided, however, that there be no unreasonable obstruction of the means of
access to the Premises or unreasonable interference with Tenant's use of the
Premises, that the square foot area of the Premises is not reduced thereby, and
that Landlord enclosed any pipes, ducts and/or conduits erected in and passing
through the Premises. Nothing contained in this paragraph shall be deemed to
relieve Tenant of any duty, obligation or liability to Tenant with respect to
making any repair, replacement or improvement or complying with any law, order
or requirement of any Governmental Authority.
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11.5 Landlord specifically reserves for itself and/or for any designee of
Landlord such utility and access easements over, under and across any and all
areas or any parts of the Premises, surrounding, adjacent to or contiguous with
the building areas of the Premises, as may be from time to time required by the
Landlord, or its designee, in connection with the use, ownership or operation or
any part of the balance of the Building. No such easements as contemplated by
this Section 11.5 shall unreasonably interfere with Tenant's use of the
Premises.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
12.1 Tenant for itself, its heirs, distributees, successors and assigns,
expressly covenants that it shall not be operation of law or otherwise assign,
sublet, encumber or mortgage this Lease, or any part thereof, or permit the
Premises to be used by others without the prior written consent of Landlord in
each instance. Any attempt by Tenant to assign, sublet, encumber or mortgage
this Lease without Landlord's prior written consent shall be null and void. The
consent by Landlord to any assignment, mortgage, encumbrance, subletting or use
of the Premises by others shall not constitute a waiver of Landlord's right to
withholds its consent to any other or further assignment, sublet, mortgage,
encumbrance or use of the Premises by others. Without the prior written consent
of Landlord, this Lease shall not pass by operation of law or otherwise and
shall not be subject to garnishment or sale under execution in any suit or
proceeding which may be brought against or by Tenant. The absolute and
unconditional prohibitions contained in this Section and Tenant's agreement
thereto are material inducements to Landlord to enter into this Lease with
Tenant and any breach thereof shall constitute a material default hereunder
permitting Landlord to exercise all remedies provided for herein or by law or in
equity on a default of Tenant.
12.2
12.2.1 If Tenant requests Landlord's consent to an assignment of this
Lease or a subletting of all or any part of the Premises, Tenant
shall submit to Landlord: (1) the name of the proposed assignee
or subtenant; (2) the terms of the proposed assignment or
subletting together with a conformed or photostatic copy of the
proposed assignment or sublease; (3) the nature of business of
the proposed assignee or subtenant's business and its proposed
use of the Premises; (4) such information as to financial
responsibility and general reputation of the proposed assignee
or subtenant as Landlord may require; and 95) a summary of plans
and specifications for revising the floor layout of the
Premises.
12.2.2 Upon the receipt of such information from Tenant, Landlord shall
have the option, to be exercised in writing within thirty (30)
days after such receipt, to cancel and terminate this Lease if
the request is to assign this Lease or to sublet all of the
Premises or, if the request is to sublet a portion of the
Premises only, to cancel and terminate this Lease with
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respect to such portion, in each case as of the date set forth
in Landlord's notice of exercise of such option.
12.2.3 If Landlord shall terminate this Lease under Section 12.2.2,
Tenant shall surrender possession of the Premises, or the
portion of the Premises which is the subject of the request, as
the case may be, on the date set forth in such notice in
accordance with the provisions of this Lease relating to
surrender of the Premises. If this Lease shall be canceled as
to a portion of the Premises only, the Minimum Rent and
Additional Rent payable by Tenant hereunder shall be abated
proportionately according to the ratio that the number of square
feet in the portion of space surrendered (as computed by
Landlord) bears to the Rentable Area of the Premises.
12.3
12.3.1 If Landlord shall fail to exercise its option to cancel and
terminate this Lease with respect to all or a part of the
Premises as above provided at the expiration of the 30 day
period, Landlord shall thereby be deemed to have consented to
the proposed assignment or subletting, unless Landlord gives a
statement to Tenant setting forth Landlord's reasons for not
consenting. Landlord agrees not to unreasonably withhold its
consent to an assignment or subletting.
12.3.2 If Landlord shall in its reasonable discretion consent to a
sublease or an assignment pursuant to the request from Tenant,
Tenant shall cause to be executed by its assignee or subtenant
an agreement to perform faithfully or to comply with all of the
terms, covenants, conditions, provisions and agreements of this
Lease for the period covered by the assignment or sublease and
to the extent of the space sublet or assigned. An executed
counterpart of each sublease or assignment and assumption of
performance by the sublessee or assignee, in form and substance
approved by Landlord, shall be delivered to Landlord within five
(5) days prior to the commencement of occupancy set forth in
such assignment or sublease. No such assignment or sublease
shall be binding on Landlord until Landlord has received such
counterpart as required herein.
12.3.3 If Landlord shall give its consent to any assignment of this
Lease or to any sublease, Tenant shall in consideration therefor
pay to Landlord as Additional Rent the following amounts less
the actual expenses incurred by Tenant in connection with such
assignment or subletting including legal fees, brokerage
commissions and costs of making alterations, as the case may be:
12.3.3.1 In the case of an assignment, an amount equal to fifty
percent (50%) of all sums and other considerations paid to
Tenant by the assignee for or by reason of such assignment,
(excluding above
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Minimum Rent and Additional Rent, and sums paid for the sale
of Tenant's fixtures, leasehold improvements, equipment,
furniture, furnishings or other personal property); and
12.3.3.2 In the case of a sublease, fifty percent (50%) of any
rents, additional charge or other consideration payable
under the sublease to Tenant by the subtenant which is in
excess of the Minimum Rent and Additional Rent accruing
during the term of the sublease in respect to the subleased
space (at the rate per quare foot payable by Tenant
hereunder) pursuant to the terms hereof (excluding sums paid
for the sale or rental of Tenant's fixtures, leasehold
improvements, equipment, furniture, furnishing or other
personal property).
The sums payable under this Section 12.3.3 shall be paid
to Landlord as Additional Rent if, as and when paid by the
assignee or subtenant to Tenant.
12.4 In no event shall any assignment or subletting to which Landlord may
consent release or relieve Tenant from its obligations to fully observe or
perform all of the terms, covenants and conditions of this Lease on its part to
be observed or performed, and Tenant remains fully responsible for the
performance of such obligations upon and subsequent to any assignment or
subletting to which Landlord may consent.
12.5 Notwithstanding the foregoing, Tenant may assign or sublease to an
entity controlled by, controlling or under common control with the Tenant.
ARTICLE 13
SURRENDER
Upon the Termination Date, or prior expiration of the Term of this Lease,
Tenant shall peaceably and quietly quit and surrender to Landlord the Premises,
broom clean, in as good condition as on the Commencement Date, ordinary wear and
tear, repairs and replacement by Landlord, and alterations, additions and
improvements permitted hereunder excepted. Tenant's obligation to observe or
perform this covenant shall survive the Termination Date or prior expiration of
the Term. If the Termination Date falls on a Sunday or a legal holiday, this
Lease shall expire at 12 noon on the last business day preceding said date.
ARTICLE 14
HOLDING OVER
If Tenant holds over possession of the Premises beyond the Termination Date
or prior expiration of the Term, such holding over shall not be deemed to extend
the Term or renew this Lease but such holding over shall continue upon the
terms, covenants and conditions of this Lease, except that the charge for use
and occupancy of the Premises for each calendar month or portion thereof that
Tenant holds over (even if such part shall be one day) shall be one-
17
twelfth (1/12th) of one and one half (1.5) the Minimum Rent and Additional Rent
required to be paid by Tenant during the calendar year preceding the Termination
Date or earlier expiration of the Term. If the Premises are not surrendered upon
the expiration of this Lese, Tenant shall indemnify and hold harmless Landlord
against any and all losses and liabilities resulting therefrom, including,
without limitation, any claims made by any succeeding tenant founded upon such
delay. Nothing contained in this Lease shall be construed as a consent by
Landlord to the occupancy or possession by Tenant of the Premises beyond the
Termination Date or prior expiration of the Term, and Landlord, upon said
Termination Date or prior expiration of the Term, shall be entitled to the
benefit of all legal remedies that now may be in force or may be hereafter
enacted relating to the immediate repossession of the Premises. The provisions
of this Article shall survive the Termination Date or earlier expiration of the
Term.
ARTICLE 15
SERVICES AND UTILITIES
15.1 As part of Landlord's Operating Expenses, Landlord shall furnish to
the Premises the following services: (i) electricity to the Common Area; (ii)
heating and cooling to the Premises; (iii) water and sanitary sewer services to
the Premises; (iv) janitorial services for the Premises (other than on Saturdays
and Sundays and during Business Holidays) as set forth in Exhibit "D" and (v)
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repair of all exterior window and exterior glass door replacement and repair
unless damage caused by the negligence of Tenant. Heating and cooling shall be
furnished to the extent necessary to keep the temperature inside the Premises
within the temperature range from 66?F to 74?F, inclusive, between the hours of
8:00 a.m. and 7:00 p.m. only, Mondays through Fridays, Business Holidays
excluded; provided, however, that if the exterior temperature exceeds 94?F, the
interior temperature need only be 20?F cooler than the exterior temperature. If
Tenant requires Landlord to provide heating or cooling at any time other than
the hours provided herein for such service, Landlord shall furnish such to
Tenant within 48 hours of Tenant's request therefor, and Tenant shall pay
provided to Landlord as Additional Rent on demand, the special hourly overtime
charge which shall be twenty-five ($25.00) per hour.
15.2
15.2.1 Throughout the Term, Landlord shall supply electrical energy,
i.e. lights and outlets ("Tenant's Electric") to the Premises
upon the following terms and conditions: (i) Tenant shall pay
for such electrical energy as provided by this paragraph 15.2;
(b) Landlord shall not be liable in any way to Tenant (a) for
any loss, damage, failure, defect or change in the quantity or
character of electricity furnished to the Premises; (b) or if
such quantity or character of electricity furnished to the
Premises is no longer available or suitable for Tenant's
requirements; or (c) for any cessation, diminution or
interruption of the supply thereof; (iii) Tenant agrees that the
independent electrical engineering consultant selected by
Landlord shall from time to time make a survey of the electric
power demanded of the electric lighting fixtures and the
electric equipment of Tenant used in the Premises to determine
the average monthly electric consumption thereof. Until such
survey is made, Tenant shall pay to
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Landlord as Additional Rent, an established amount equal to
$667.71 per month of the first day of each calendar month,
commencing on the Commencement Date. The estimate is based on
$1.25 per square foot of the rentable area of the Premises. The
findings of said consultant as to the average monthly electric
consumption of Tenant shall be conclusive and binding on the
parties hereto unless Tenant disputes the findings of Landlord's
consultant by notice given to Landlord within thirty (30) days
after Tenant's receipt of said findings which Tenant reasonably
believes are incorrect based upon an electrical survey conducted
by Tenant's consultant. In such event, Landlord's consultant and
Tenant's consultant shall use their best efforts to reach
agreement with regard to Tenant's electrical power demand and
Tenant's average monthly electric consumption. If said
consultants are unable to agree within fifteen (15) days after
the giving of Tenant's notice, then said consultants shall
select an independent consultant to conduct another electrical
survey. The findings of said independent consultant shall be
conclusive and binding upon the parties hereto and the parties
hereby expressly agree to share equally the costs and expenses
incurred in connection with said survey. After Landlord's
consultant has submitted its report, or, if Tenant has disputed
said report, after Landlord's consultant and Tenant's consultant
have filed a joint report or have obtained a report from an
independent consultant, whichever the case may be, Tenant shall
(i) in the case of an underpayment by Tenant, pay to Landlord,
the amount determined to be owing from the Commencement Date or
during the months in which said survey was being conducted and
(ii) in the case of an overpayment by Tenant, receive a credit
against the next succeeding installment(s) of Additional Rent
equal to the amount determined to be overpaid from the
Commencement Date or during the months in which said survey was
being conducted; thereafter, Tenant shall pay to Landlord on the
first day of every month, in advance, the amounts set forth as
the monthly consumption in said report. Said amounts shall be
deemed Additional Rent due hereunder; (iii) if there shall be an
increase or decrease in the rate schedule of the public utility
supplying electric energy to the Building, or the imposition of
any tax with respect to such electrical energy or any increase
in such tax following the Commencement Date, the Additional Rent
payable hereunder shall be equitably adjusted as of the
effective date of such increase, decrease or tax; (iv) Tenant
shall be responsible for replacing all light bulbs, fluorescent
lamps, non-Building standard lamps and bulbs, and all ballasts
used by Tenant in the Premises. At the option of the Landlord,
Tenant shall purchase from Landlord all fluorescent lamps, light
bulbs and ballasts used in the Premises and pay Landlord for the
cost of same. Total electric charges for Building collected by
Landlord cannot exceed actual total cost.
15.2.2 Tenant covenants that its use of electricity in the Premises
shall be limited to and for the operation of (i) the building
standard lighting, and (ii) electric typewriters, calculators,
copy machines, fax machines,
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personal computers and printers, refrigerator, coffee machine,
microwave oven and other small office machines and for no other
use except with the written consent of Landlord.
15.2.3 Tenant shall make no alteration to the existing electrical
equipment or connect any fixtures, appliances or equipment
without the prior written consent of Landlord in each instance.
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 as Additional Rent
upon Landlord's demand. as a condition to granting such
consent, Landlord shall require an increase in the Additional
Rent by an amount which will reflect the cost of the additional
equipment and service to be furnished by Landlord. If Landlord
and Tenant cannot agree on such increase the Additional Rent
increase shall be determined by an independent electrical
engineer, to be selected by Landlord and whose fee for services
rendered shall be paid by Tenant upon demand and shall
constitute Additional Rent.
15.2.4 Landlord shall not be liable in the event of any interruption in
the supply of electricity, or of any other utility, including
but not limited to air-conditioning, heat or water, unless
caused by the negligence of Landlord, its agents, servants or
employees, and Tenant agrees that such supply may be interrupted
for inspection, initiation of service repairs, replacement and
in emergencies.
15.2.5 Landlord reserves the right to cause Tenant's consumption or use
of electrical energy to be separately metered from the
consumption or use thereof by other tenants of the Building and,
in such event, Tenant shall pay the cost of such electrical
energy promptly upon receipt of the xxxx therefor. In such event
Tenant shall not be required to pay to Landlord the amount of
$1.25 per square foot as Additional Rent for Tenant Electric as
set forth above.
15.3 The failure of Landlord to furnish any service hereunder, or the
interruption of any utility service to the Premises, including but not limited
to electricity, air-conditioning, heat or water, except when caused by the
intentional or negligent conduct of Landlord, shall not be construed as a
constructive eviction of Tenant and shall not excuse Tenant from failing to
perform any of its obligations hereunder and shall not give Tenant any claims
against Landlord for damages for failure to furnish such service.
20
ARTICLE 16
QUIET ENJOYMENT
Landlord covenants and agrees that, upon the performance of Tenant of all of
the covenants, agreements and provisions hereof on Tenant's part to be kept and
performed, Tenant shall have, hold and enjoy the Premises, subject and
subordinate to the rights set forth in Article 20, provided, however, that no
diminution or abatement of the Minimum Rent, Additional Rent or other payment to
Landlord shall be claimed by or allowed to Tenant for inconvenience or
discomfort arising from the making of any repairs or improvements to the
Premises or Real Property, nor for any space taken to comply with any law,
ordinance or order of any Governmental Authority, except as provided for herein.
Tenant's rights hereunder are and shall be subject to existing and future
easements affecting the Real Property, including by way of illustration and not
limitation, easements for storm and sanitary sewers, drainage ditches and public
utilities, and to all existing and future mortgages, liens or real estate taxes
and those items set forth on Exhibit "A-1" hereof.
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ARTICLE 17
DEFAULT
17.1 If during the Term any one or more of the following acts or
occurrences (any one of such occurrences or acts being hereinafter called an
Event of Default) shall happen:
17.1.1 If Tenant shall default in making the payment of any installment
of the Minimum Rent or the Additional Rent or default in any
other way curable by the payment of money after written notice
by Landlord to Tenant and a three day opportunity to cure after
the payment shall be due and payable; or
17.1.2 If Tenant shall default in the observance or performance of or
compliance with any of the other covenants, agreements, terms or
conditions of this Lease or any other contract or agreement with
Landlord to be observed or performed by Tenant (other than any
default curable by payment of money or any default described in
Sections 17.1.3, 17.1.4, 17.1.5 or 17.1.6), and such default
shall continue for a period of fifteen (15) days after written
notice thereof from Landlord to Tenant, or, in the case of a
default which cannot with due diligence be cured within fifteen
(15) days, Tenant shall fail to proceed promptly (except for
unavoidable delays) after the giving of such notice and with all
due diligence to cure such default and thereafter to prosecute
the curing thereof with all due diligence (ir being intended
that as to a default not susceptible of being cured with due
diligence within fifteen (15) days, the time within which such
default may be cured shall be extended for such period as may be
reasonably necessary to permit the same to be cured with all due
diligence); or
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17.1.3 If Tenant shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent, or shall file any
petition or answer seeking any reorganization, composition,
readjustment or similar relief under any present or future
bankruptcy or other applicable law, or shall seek or consent to
or acquiesce in the appointment of any trustee, receiver, or
liquidator of Tenant or of all or any substantial part of its
properties or of all or any part of the Premises; or
17.1.4 If within sixty (60) days after the filing of an involuntary
petition in bankruptcy against Tenant, or the commencement of
any proceeding against Tenant seeking any reorganization,
composition, readjustment or similar relief under any law and
such proceeding shall not have been dismissed; or, if within
sixty (60) days after the appointment (without the consent or
acquiescence of Tenant) of any trustee, receiver or liquidator
of Tenant, or of all or any substantial part of the properties
of Tenant or of all or any part of the Premises, and such
appointment shall not have been vacated or stayed on appeal or
otherwise; or, if, within sixty (60) days after the expiration
of any such stay, such appointment shall not have been vacated;
or, in within sixty (60) days after the taking of possession
(without the consent or acquiescence of Tenant) of the property
of Tenant by any governmental office or agency pursuant to
statutory authority for the dissolution or liquidation of
Tenant, such taking shall not have been vacated or stayed on
appeal or otherwise;
17.1.5 If the Premises shall be abandoned by Tenant for a period of
forty-five (45) consecutive days; or
17.1.6 If Tenant shall fail to take actual occupancy of the Premises
within ninety (90) days after the Commencement Date or shall
thereafter vacate the Premises for a period in excess of thirty
(30) days;
then, in any of the foregoing events, Landlord may exercise the rights
set forth in Article 18 of this Lease or otherwise provided at law or in
equity.
17.2 Notwithstanding any provisions of this Lease permitting Tenant to cure
any event constituting an Event of Default, if any Event of Default occurs more
than four (4) times within any six (6) month period then, notwithstanding that
each such Event of Default shall have been cured, then upon any further Event of
Default, Landlord may exercise the remedies provided herein or at law or in
equity upon giving notice as provided in Section 18.1 of this Lease without
affording Tenant an opportunity to cure such Event of Default.
ARTICLE 18
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT
18.1 If any Event of Default occurs, Landlord may at its option,
notwithstanding the fact that Landlord may have other remedies hereunder or at
law or in equity, by notice to Tenant designate a date, not less than ten (10)
days after the giving of such notice, on which this
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Lease shall terminate; and thereupon, on such date the Term of this lease and
the estate hereby granted shall expire and terminate with the same force and
effect as if the date specified in such notice was the Termination Date and all
rights of Tenant hereunder shall expire and terminate by Tenant shall remain
liable as provided in this Lease, and Landlord shall have the right to remove
all persons, goods, fixtures and chattels from the Premises, in accordance with
New Jersey eviction laws, without liability or damages to Tenant.
18.2 If this Lease is terminated as provided in Section 18.1, or as
permitted by law, Tenant shall peaceably quit and surrender the Premises to
Landlord, and Landlord may, without further notice, enter upon, re-enter,
possess and repossess the same by summary proceedings, ejectment or other legal
proceeding, and again have, repossess and enjoy the same as if this Lease had
not been made, and in any such event neither Tenant nor any person claiming
through or under Tenant by virtue of any law or an order of any court shall be
entitled to possession or to remain in possession of the Premises but shall
forthwith quit and surrender the Premises, and Landlord at its option shall
forthwith, notwithstanding any other provision of this Lease, be entitled to
recover from Tenant as and for liquidated damages either:
18.2.1 an amount equal to (i) all Minimum Rent, Additional Rent and
other amounts payable by Tenant hereunder then due or accrued
and unpaid; plus (ii) all Minimum Rent and Additional Rent
(conclusively presuming the Additional Rent to be the same as
was payable for the calendar year immediately preceding such
termination) reserved hereunder for the unexpired portion of the
Term discounted at the rate of six percent (6%) per annum to
then present worth; plus (iii) all other damages and expenses
(including attorneys' fees and expenses) which Landlord shall
have sustained by reason of the breach of any provision of this
Lease. Under this option, Landlord shall reimburse Tenant for
any rent collected should Landlord relet the Premises for the
period reflected in the payments.
18.2.2 amounts equal to (i) the Minimum Rent and Additional Rent (as
above presumed) which would have been payable by Tenant from
time to time had this Lease not so terminated, or had Landlord
not so reentered the Premises, payable on the date that such
payments would have otherwise been payable following such
termination and until the Termination Date, plus (ii) all other
damages and expenses (including attorneys' fees and expenses)
which Landlord shall have sustained by reason of the breach of
any provision of this Lease; provided, however, that if Landlord
shall relet the Premises during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting
from the gross rents as and when received by Landlord from such
reletting, the expenses incurred or paid by Landlord from such
reletting, the expenses incurred or paid by Landlord in
terminating this Lease or in re-entering the Premises and in
securing possession thereof, as well as the expenses if
reletting, including altering and preparing the Premises for new
tenants, legal fees, brokers' commissions, and all other
expenses properly chargeable against the Premises and the rental
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therefrom, it being understood that any such reletting may be
for a period shorter or longer than the remaining term of this
Lease, but in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to
Landlord hereunder, nor shall Tenant be entitled in any suit for
the collection of damages pursuant to this Subsection to a
credit in respect of any net rents from a reletting, except to
the extent that such net rents are actually received by
Landlord. If the Premises or any part thereof shall be relet in
combination with other space, then proper apportionment on a
square foot basis (for equivalent space) shall be made of the
rent received from such reletting and of the expenses of
reletting. Suit or suits for the recovery of such damages, or
any installments of such damages, may be brought by Landlord
from time to time at its election, and nothing contained herein
shall be deemed to require Landlord to postpone suit until the
date when the term of this Lease would have expired if it had
not been so terminated under the provisions of Section 18.1, or
under any provision of law, or had Landlord not reentered the
Premises.
18.3 Nothing herein contained shall be construed to limit or preclude
recovery by Landlord against Tenant of any sums or damages to which,
in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part
of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as damages
by reason of the termination of this Lease or re-entry on the
Premises for the default of Tenant under this Lease, an amount equal
to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages
are to be proved whether or not such amount be greater, equal to, or
less than any of the sums referred to in Section 18.2. Nothing
herein contained shall limited or prejudice the right of Landlord in
any bankruptcy or reorganization or insolvency proceeding to prove
for and obtain as damages by reason of such termination an amount
equal to the maximum allowed by any bankruptcy or reorganization or
insolvency proceedings or to prove for and obtain as damages by
reason of such termination any amount equal to the maximum allowed
by any statute or rule of law provided, however, such amount shall
be greater than al the sums recovered in Section 18.2.
18.4 Landlord may retain, as a credit against the damages herein
provided form any Minimum Rent or Additional Rent or monies received
by it from Tenant or others on behalf of Tenant.
18.5 If Landlord takes possession of the Premises pursuant to the
provisions of this Article 18, Tenant hereby agrees that Landlord
shall have the right to take possession of any furniture or fixtures
of Tenant then found upon the Premises, to sell the same at any
private or public sale and to apply the proceeds therefrom to any
amount due; Tenant agrees further that all such furniture and
fixtures shall be deemed abandoned by Tenant and that Landlord shall
have no liability whatsoever to Tenant in connection with or as
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a result of the disposition of any such furniture or fixtures.
Tenant waives any right to notice of execution or levy in connection
therewith.
18.6 Landlord shall take commercially reasonable action to mitigate
damages.
ARTICLE 19
LANDLORD'S REMEDIES CUMULATIVE; EXPENSES
19.1 No right or remedy conferred upon or reserved to Landlord shall be
exclusive of any other right or remedy, and any right or remedy shall be
cumulative and in addition to every other right or remedy given hereunder or now
or hereafter existing as law. The failure of Landlord to insist at any time
upon the strict performance of any covenant or agreement or to exercise any
right, power or remedy contained in this Lease shall not be construed as a
waiver or relinquishment thereof for the future. A receipt by Landlord of any
installment of the Minimum Rent or the Additional Rent with knowledge of the
breach of any covenant or agreement contained in this Lease shall not be deemed
a waiver of such breach and shall not be deemed to have been waived unless
expressed in writing and signed by Landlord. Landlord shall be entitled, to the
extent permitted by applicable law, to injunctive relief in case of the
violation, or attempted or threatened violation, of any covenant, agreement,
condition or provision of this Lease or to a decree compelling performance of
any covenant, agreement, condition or provision of this Lease, or to any other
remedy allowed Landlord by law.
19.2 If either Landlord or Tenant shall be in default in the performance of
any of their respective obligations under this Lease and an action shall be
brought for the enforcement thereof in which it shall be determined by a court
of competent jurisdiction that the other party was in default, the party in
default shall pay to the other, on demand, the expenses incurred in connection
therewith, including reasonable attorneys' fees.
19.3 For the purposes of any suit brought by Landlord, this Lease shall be
construed to be a divisible contract, to the end that successive actions may be
maintained on this Lease as successive periodic sums mature hereunder.
19.4 If Tenant shall default in the keeping, observance or performance of
any covenant, agreement, term, provision, or condition herein contained,
Landlord, without thereby waiving such default, may perform the same for the
account and at the expense of Tenant (i) immediately or at any time thereafter
and without notice in the case of emergency or in case such default will result
in a violation of any legal or insurance requirement, or in the imposition of
any lien, charge or encumbrance against all or any portion of the Premises and
(ii) in any other case if such default continues after thirty (30) days from
the date of the giving by Landlord to Tenant of notice of Landlord's intention
so to perform the same. All reasonable costs and expenses incurred by Landlord
in connection with any such performance by it for the account of Tenant and also
all costs and expenses, including reasonable counsel fees and disbursements
incurred by Landlord in any action of proceeding (including any summary
dispossess proceeding) brought by Landlord to enforce any obligation of Tenant
under the Lease and/or right of Landlord in or to the Premises, shall be paid by
Tenant to Landlord upon demand.
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ARTICLE 20
SUBORDINATION AND ESTOPPEL
20.1 Tenant agrees that this Lease is subject and subordinate to all ground
or underlying leases and to the lien of any mortgages or deeds of trust now on
or which at any time may be made a lien upon the Real Property, and to any
modification thereof, and to all advances made or hereafter to be made upon the
security thereof. This subordination provision shall be self-operative and not
further instrument of subordination shall be required, provided, however, that
Tenant agrees to execute and deliver upon request, such further instrument or
instruments confirming this subordination as shall be requested by Landlord or
by any mortgagee or proposed mortgagee of the Real Property. Tenant hereby
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute any
such instrument or instruments. Tenant further agrees that at the option of the
holder of any mortgage or of the trustee under any deed of trust affecting the
Real Property, this Lease may be made superior to said mortgage or deed of trust
by the insertion therein of a declaration that this Lease is superior to said
mortgage or deed of trust.
20.2 Each party shall at any time and from time to time within ten (10)
days of receipt of written request therefor, execute, acknowledge and deliver to
the other an estoppel certificate certifying (i) that this Lease is unmodified
and in full force and effect (or, if there have been modifications, that the
same are in full force and effect as modified and stating the modifications),
(ii) the dates to which the Minimum Rent and Additional Rent have been paid in
advance, if any, (iii) whether any options granted to Tenant pursuant to the
provisions of this Lease have been exercised, and (d) whether or not to the best
knowledge of the signer, the other party is in default in performance of any of
its obligations under this Lease, and if so, specifying each such default of
which such party may knowledge, it being intended that any such certificate
delivered pursuant to this Section 20.2 may be relied upon by a prospective
purchaser of Landlord's interest or a mortgage of Landlord's interest or
assignee of any mortgage upon Landlord's interest in the Real Property or any
other party which Landlord wishes to receive said estoppel certificate or any
assignee or creditor of Tenant.
ARTICLE 21
DAMAGE BY FIRE OR OTHER CASUALTY
21.1 If the Building or the Premises shall be partially or totally damaged
or destroyed by fire or other cause, then, whether or not the damage or
destruction shall have resulted from the fault or neglect of Tenant or Tenant's
Visitors (and if this Lease shall not have been terminated as in this Article 21
hereinafter provided), Landlord shall repair the damage and restore and rebuild
the Building and/or the Premises, at its expense, with reasonable dispatch after
notice to it of the damage or destruction; provided, however, that Landlord
shall not be required to repair or replace any of Tenant's property.
21.1 If the Building or the Premises shall be partially damaged or
partially destroyed by fire or other cause, the rents payable hereunder shall be
abated to the extent that the Premises shall have been rendered unusable to
Tenant in the conduct of its business and for the period from the date of such
damage or destruction to the date the damage shall be repaired or
26
restored. If the Premises or a major part thereof shall be totally (which shall
be deemed to include substantially totally) damaged or destroyed or rendered
completely (which shall be deemed to include substantially completely) unusable
to Tenant in the conduct of its business on account of fire or other cause, the
rents shall completely xxxxx as of the date of the damage or destruction and
until Landlord shall repair, restore and rebuild the Building and the Premises,
provided, however, that should Tenant reoccupy a portion of the Premises for the
conduct of Tenant's business operations during the period the restoration work
is taking place and prior to the date that the same are made completely
tenantable, rents allocable to such portion shall be payable by Tenant from the
date of such occupancy.
21.3 If (a) the Building shall be totally damaged or destroyed by fire or
other cause, or (b) the Building shall be so damaged or destroyed by fire or
other cause (whether or not the Premises are damaged or destroyed) as to require
a reasonably estimated expenditure of more than twenty-five (25%) of the full
insurable value of the Building immediately prior to the casualty and Landlord
intends to demolish or not to rebuild the Building, or (c) during the final year
of the current Term (without extension thereof) the Premises are damaged or
destroyed whether partially or totally; then in either such case and
notwithstanding anything elsewhere provided in this Article 21 Landlord may
terminate this Lease by giving Tenant notice to such effect within one hundred
twenty (120) days after the date of the casualty.
21.4 In case of any damage or destruction mentioned in this Article 21,
Tenant or Landlord may terminate this Lease, by notice to Tenant, if the
Premises and the Building are not reasonably capable of restoration within six
(6) months from the date of such damage or destruction, or if Landlord has not
completed the making of the required repairs and restored and rebuilt the
Building and the Premises within six (6) months from the date of such damage or
destruction.
21.5 No damages, compensation or claim shall be payable by Landlord for
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Premises or of the Building pursuant to this
Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as to not unreasonably interfere with
Tenant's use and occupancy.
21.6. Notwithstanding any of the foregoing provisions to the contrary,
Landlord's obligation to repair the damage and restore and rebuild the Building
and/or the Premises pursuant to this Article shall be subject to (i) Landlord's
obtaining all necessary approvals from the Governmental Authorities; (ii) the
approval and consent of the holder of any superior mortgage or the lessor of any
superior lease and the willingness of such mortgagee and lessor to make the
proceeds of casualty insurance policies available to Landlord for such purposes;
and (iii) Landlord's receipt of casualty insurance proceeds in an amount
sufficient to cover the full cost to repair the damage and restore and rebuild
the Premises and/or the Building. Landlord shall have the right to terminate
this Lease within sixty (60) days after Landlord determines that any one of the
foregoing conditions have not been satisfied by giving Tenant notice to such
effect.
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ARTICLE 22
MUTUAL WAIVER OF SUBROGATION
Each insurance policy carried by Landlord insuring the Real Property against
loss by fire and causes covered by standard extended coverage, and each
insurance policy carried by Tenant and insuring the Premises and its fixtures
and contents against loss by fire and causes covered by standard extended
coverage, shall be written in a manner so as to provide that the insurance
company waives all right of recovery by way of subrogation against Landlord or
Tenant in connection with any loss or damage covered by such policies. Neither
Landlord nor Tenant shall be liable to the other for any loss or damage caused
by fire, water or any of the risks enumerated in standard extended coverage
insurance, provided such insurance was in effect at the time of such loss or
damage. If such insurance policies cannot be obtained, or are obtainable only
by the payment of an additional premium charge above that charged by companies
carrying such insurance without such waiver of subrogation, the party
undertaking to carry such insurance shall notify the other party of such fact
and such other party shall have a period of ten (10) days after the giving of
such notice either (a) to place such insurance in companies which are reasonably
satisfactory to the first party and will carry such insurance with waiver of
such subrogation; or (b) to agree to pay such additional premium if such policy
is obtainable at additional cost; and if neither (a) or (b) is done, this
Article shall be null and void for so long as either such insurance cannot be
obtained or the party in whose favor a waiver of subrogation is desired shall
refuse to pay the additional premium charge.
ARTICLE 23
CONDEMNATION
23.1 If the Premises are acquired or condemned by eminent domain or
condemnation proceedings, or a suit or other action shall be instituted for the
taking of condemnation therefor, or if in lieu of any formal condemnation
proceedings or actions, Landlord shall grant an option to purchase and/or shall
sell and convey the Premises or any portion thereof, or the Building or Real
Property of which the Premises form a part, to any government or other public
authority, agency, body or public utility, seeking to take said Real Property,
Building and/or Premises or any portion thereof, the Term shall cease and
terminate from the date of title vesting pursuant to such proceeding or
agreement. If only a portion of the Premises or the Building shall be so
condemned or acquired, this Lease shall cease and terminate at Landlord's
option, and if such option is not exercised by Landlord, an equitable adjustment
of the Minimum Rent and Additional Rent payable by Tenant for the remaining
portion of the Premises shall be made. If more that 25% of the Premises shall
be so condemned or acquired, or if by reason of such a condemnation or
acquisition the Premises are rendered unfit for Tenant's intended use, this
Lease shall cease and terminate at Tenant's option. If a termination occurs
under this Article 23, Tenant shall have no claim against Landlord or the
condemning authority for the value of the unexpired Term, and Tenant shall have
no claim against Landlord, other than for the adjustment of the Minimum Rent and
Additional Rent as hereinbefore mentioned, or be entitled to any portion of any
amount that may be awarded as damages or paid as a result of such proceedings or
as the result of any agreement made by the condemning authority with Landlord.
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23.3 Tenant may make an independent claim in such proceedings for its
personalty, trade fixtures and moving expenses only; provided, however, that any
such claim shall in no way affect and portion of any award which the Landlord or
the holder of any mortgage affecting the Premises or the Real Property shall be
entitled to receive.
ARTICLE 24
CHANGES IN SURROUNDING BUILDING
This Lease shall not be affected or impaired by any change in any sidewalk,
alley or street adjacent to or around the Building, except as otherwise provided
in Article 23.
ARTICLE 25
NOTICES
Unless otherwise indicated differently, all notices, payments, requests,
reports, information or demands which any party hereto may desire or may be
required to give to any other party hereunder, shall be in writing and shall be
personally delivered or sent by confirmed facsimile transmission (answer back
received), nationally recognized courier, or first-class certified or registered
United States mail, postage prepaid, return receipt requested, and sent to the
party at its address appearing below or such other addresses as any party shall
hereafter inform the other party hereto by written notice given as aforesaid:
If to Tenant:
Medarex, Inc.
0000 Xxxxx 00 Xxxx
P. O. Xxx 000
Xxxxxxxxx, XX 00000-0000
Att: Xxxxxx X. Xxxxxxxx, President and CEO
with a copy to:
Sattlerlee Xxxxxxxx Xxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
If to Landlord:
XxXxxxxx Associates Limited
A New Jersey limited partnership
x/x Xxxx X. XxXxxxxx, XXX
000 Xxxxxxxxx Xxxxxx
P.O. Box 2329
Princeton, NJ 08543-2329
29
or to such other person or place as a party may designate by notice as
aforesaid. Notice by mail shall be deemed given on the third business day
following deposit in the mail.
ARTICLE 26
NO WAIVER
26.1 No waiver by Landlord of any breach by Tenant of any of the terms,
covenants, agreements or conditions of this Lease shall be effective unless such
waiver is contained in a writing subscribed by Landlord and no such waiver shall
be deemed to constitute a waiver of any succeeding breach thereof, or a waiver
of any breach of any of the terms, covenants, agreements and conditions herein
contained.
26.2 No employee of Landlord or of Landlord's agents shall have any
authority to accept the keys of the Premises prior to the Termination Date and
the delivery of keys to any employee of Landlord or Landlord's agents shall not
operate as an acceptance of a termination of this Lease or an acceptance of a
surrender of the Premises.
26.3 The receipt by Landlord of the Minimum Rent and Additional Rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Minimum Rent or a lesser amount of the Additional Rent
the due shall be deemed to be other than on account of the earliest stipulated
amount then due, nor shall any endorsement or statement on any check or payment
as Minimum Rent or additional Rent be deemed in accord and satisfaction and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such Minimum Rent or Additional Rent or to pursue any
other remedy provided in this Lease.
26.4 Landlord's failure during the Term to prepare and deliver any of the
statements, notice or bills set forth in this Lease shall not in any way cause
Landlord to forfeit or surrender its rights to collect any amount that may have
become due and owing to it during the term of this Lease.
ARTICLE 27
LANDLORD'S LIABILITY
Landlord or its agents shall not be liable to Tenant for any injury or any
loss (by theft or otherwise) or damage to property of Tenant in the Premises or
on the Real Property, unless caused by or due to the negligence or wilful
misconduct of Landlord or its agents.
ARTICLE 28
MUTUAL INDEMNIFICATION TENANT'S LIABILITY
28.1 Tenant shall indemnify and save Landlord harmless against any
liability to and claim by or on behalf of any person, firm, Governmental
Authority, corporation or entity for personal injury, death or property damage
arising from:
30
28.1.1 the use or occupancy by Tenant of the Premises or from any work
or things whatsoever done or omitted to be done thereat by
Tenant or Tenant's Visitors.
28.1.2 any breach or default by Tenant of and/or under any of the
terms, covenants and conditions of this Lease.
28.1.3 any negligence of Tenant.
28.1.4 any accident, injury or damage whatsoever caused to any person,
firm, or corporation or to any property (other than those caused
by Landlord or its agents, servants, employees or contractors)
occurring during the term hereof, in or about the Premises.
and including all reasonable costs, counsel fees, expenses and penalties
incurred by Landlord in connection with any such liability or claim, provided,
however, that Tenant shall have the prior opportunity, at Tenant's cost and
expense to defend, settle or compromise any such liability or claim with counsel
of Tenant's choosing.
28.2 Landlord shall not be liable for any damage to property of Tenant or
of others entrusted to employees of the Building, nor shall Landlord be liable
for the loss of or damage to any property of Tenant by theft or otherwise unless
due to the negligence or wilful misconduct of Landlord, its servants, agents or
employees, nor for any damage caused by other tenants or persons in the Building
or caused by operations in construction of any work on behalf of third parties
unless due to the negligence or wilful misconduct of Landlord.
28.3 Landlord shall indemnify and save Tenant harmless against any
liability to and claim by or on behalf of any person, firm, Governmental
Authority, corporation or entity for personal injury, death or property damage
arising from:
28.3.1 any breach or default by Landlord of and/or under any of the
terms, covenants and conditions of this Lease;
28.3.2 any negligence or wilful misconduct of Landlord.
and including all reasonable costs, counsel fees, expenses and penalties
incurred by Tenant in connection with any such liability or claim, provided,
however, that Landlord shall have the prior opportunity, at Landlord's cost and
expense, to defend, settle or compromise any such liability or claim with
counsel of Landlord's choosing.
ARTICLE 29
TENANT'S INSURANCE
29.1 Tenant will maintain with admitted insurers, authorized to do business
in the State of New Jersey and which are rated A-Plus/X in Best's Key Rating
Guide, comprehensive general liability insurance (including, during any period
when Tenant is making alterations or
31
improvements to the Premises, coverage for any construction on or about the
Premises) against claims for bodily injury, personal injury, death or property
damage occurring on, or in about the Premises and the adjoining streets,
sidewalks and passageways, or as a result of ownership of facilities located on
the Premises in amounts not less than $5,000,000.00 for each claim with respect
to bodily injury, personal injury or death, $5,000,000.00 with respect to any
one occurrence, and $5,000,000.00 with respect to all claims for property damage
with respect to any one occurrence.
29.2 The policy of insurance required to be maintained by Tenant pursuant
to Section 29.1 shall name as the insured parties Landlord and Tenant as their
respective interests may appear, shall be reasonably satisfactory to Landlord
and shall (a) bear a standard first mortgage endorsement in favor of any holder
or holders of a first mortgage lien on the Premises with loss payable to such
holder or holders, (b) include a waiver of all rights or subrogation against
Landlord, such holder or holders and Tenant, (c) provide, for the benefit of
such holder or holders, that thirty (30) days' prior written notice of
suspension, cancellation, termination, modification, non-renewal or lapse or
material change of coverage shall be given and that such insurance shall not be
invalidated by any act or negligence of Landlord or Tenant or any owner of the
Premises, nor by any foreclosure or other proceedings or notices thereof
relating to the Premises or any interest therein, nor by any change in the title
or ownership of the Premises, nor by occupation of the Premises for purposes
more hazardous than are permitted by such policy, (c) not contain a provision
relieving the insurer thereunder of liability for any loss by reason of the
existence of other policies of insurance covering the Premises against the peril
involved, whether collectible or not, and (e) include a contractual liability
endorsement evidencing coverage of Tenant's obligation to indemnify Landlord
pursuant to Section 28 hereof.
29.3 Prior to the Commencement Date, Tenant shall deliver to Landlord
original or duplicate policies or certificates of the insurers evidencing all of
the insurance which is required to be maintained hereunder by Tenant, and,
within ten (10) days prior to the expiration of any such insurance, other
original or duplicate policies or certificates evidencing the renewal of such
insurance.
29.4 Tenant shall not obtain or carry separate insurance concurrent in form
or contributing in the event of loss with that required by Section 29.1 unless
both Landlord and Tenant are named as insureds therein.
29.5 Landlord and Tenant mutually agree that with respect to any loss which
is covered by insurance then being carried by the parties, or required to be
carried, the one carrying or required to carry such insurance and suffering such
loss hereby releases the other or and from any and all claims with respect to
such loss to the extent of such insurance carried or required to be carried.
Landlord and Tenant also agree that their respective insurance companies shall
have no right of subrogation against the other on account thereof. Nothing
contained in this Section 29.5 shall be deemed to modify or otherwise effect any
releases herein or either party from liability for claims.
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ARTICLE 30
MECHANICS' LIEN
If, because of any act or omission of Tenant, any mechanics' or other lien,
charge or order for the payment of money, or otherwise shall be filed against
the Premises or the Building (whether or not such lien, charge or order is valid
or enforceable as such), Tenant, at Tenant's expense, shall cause it to be
canceled or discharged of record by bonding or otherwise within thirty (30) days
after such filing, and Tenant shall, in any event, forever indemnify and save
Landlord harmless against and shall pay all costs, expenses, losses, fires and
penalties, including, without limitation, attorneys' fees related thereto or
resulting therefrom.
ARTICLE 31
DEFINITION OF LANDLORD
The term "Landlord" as used in this Lease means only the present owner of
the Real Property. In the event of any transfer of title to Real Property, the
Landlord shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder except for liabilities which arose prior to
such transfer and this Lease shall be deemed and construed as a covenant running
with the land without further agreement between the parties to their successors
in interest.
ARTICLE 32
DEFINITION OF TENANT
The term "Tenant" as used in this Lease includes Tenant, its successors and
assigns and any person or entity claiming by, through or under Tenant.
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ARTICLE 33
NO PERSONAL LIABILITY
Landlord shall be under no personal liability with respect to any of the
provisions of this Lease. If Landlord is in breach or default with respect to
its obligations or otherwise, no recourse or relief shall be had under any rule
of law, statute or constitution or by any enforcement of any assessments or
penalties or otherwise, or based on or in respect of this Lease (whether by
breach of any obligation, monetary or non-monetary), against Landlord, it being
expressly understood that all obligations of Landlord under or relating to this
Lease are solely obligations payable out of the Premises and are compensable
solely therefrom. It is expressly understood that all such liability is and is
being expressly waived and released as a condition of and as a condition for the
execution of this Lease, and Tenant expressly waives and releases all such
liability as a condition of, and as a consideration for, the execution of this
Lease by Landlord. Landlord hereby agrees to maintain with an insurer selected
by it a general liability insurance policy against claims for bodily injury,
personal injury, death or property damage occurring on or about the Real
Property in amounts not less than $5,000,000.00 for each claim with respect to
bodily injury, personal injury or death, $5,000,000.00 with respect to any one
occurrence, and $5,000,000.00 with respect to all claims for property damage
with respect to any one occurrence.
ARTICLE 34
DIRECTORY
Landlord shall furnish and service near the entrance of the Building a
directory, listing therein such reasonable and customary number of names that
Tenant may from time to time request to be listed in such directory. Nothing in
this Article shall be construed to require Landlord to list in the directory
more names for Tenant than Tenant's Proportionate Share of the total number of
listings available in the directory.
ARTICLE 35
ENVIRONMENTAL MATTERS
35.1 Tenant represents and warrants that although it may be an "industrial
establishment" as defined in the Environmental Cleanup Responsibility Act as
amended by the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.
-------- ------
("ISRA") it will not engage in operations which involve the generation,
manufacture, refining, transportation, treatment, storage, handling, or disposal
of hazardous substances or hazardous wastes on-site, above or below ground at
the Real Property. Tenant agrees that the Landlord shall have the right to
conduct or have conducted by its agents or contractors, such environmental
inspections as the Landlord shall reasonably deem necessary or advisable from
time to time. Tenant shall cooperate with such inspection efforts, such
cooperation shall include, without limitation, supplying such information
concerning the operations conducted, and "hazardous substances" or "hazardous
wastes", as such term is defined in the applicable environmental laws, located
at the Premises.
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35.2 In the event that Tenant now is or hereafter becomes an "industrial
establishment", then in additional to all of Landlord's rights and remedies
herein, Tenant shall comply with all requirements or ISRA, however arising,
related directly or indirectly to the Tenant's operations at the Premises.
35.3 Tenant shall not cause or permit the Premises to be in violation of,
or do anything which would subject the Premises to any remedial obligations
under, any applicable environmental law and shall promptly notify Landlord, in
writing, or any existing, pending or threatened investigation or inquiry by any
governmental authority in connection with any applicable environmental law.
35.4 Tenant shall not cause or permit to exist, as a result of any
intentional or unintentional action or omission on the part of Tenant in or
about the Real Property, a releasing, spilling, leaking, pumping, emitting,
pouring, emptying or dumping of a "hazardous substance" or "hazardous wastes",
as such terms are defined in the applicable environmental laws, into waters or
onto the lands of the State of New Jersey, or into waters outside the
jurisdiction of the State of New Jersey, where damage may result to the lands,
waters, fish, shellfish, wildlife, biota, air and other resources owned,
managed, held in trust or otherwise controlled by the State of New Jersey,
unless said release, spill, leak, etc., is pursuant to and in compliance with
the conditions of a permit issued by the appropriate federal or state
governmental authorities.
35.5 At no expense to Landlord or Tenant, Tenant and Landlord each agree to
promptly provide all information requested by the other for preparation of non-
applicability affidavits and shall promptly sign such affidavits when
requested. Tenant shall indemnify, defend and hold Landlord harmless from all
fines, suits, procedures, claims and actions of any kind arising out or in any
way connected with any spills or discharges of hazardous substances or wastes at
the Premises which occur during the Term of this Lease by reason of Tenant's
beach of the provisions of this Article. Landlord shall indemnify, defend and
hold Tenant harmless from and against all any and all liabilities, losses and
costs which Tenant may incur arising out of the presence of any hazardous
substance or hazardous waste on the Premises where such presence: (1) predates
occupancy of the Premises by Tenant, or (2) was caused solely by the negligence
or wilful misconduct of Landlord.
35.6 This Article shall survive the expiration or sooner termination of
this Lease.
ARTICLE 36
SECURITY
36.1 Tenant has deposited with Landlord a sum representing two months
Minimum Rent as security for the faithful performance and observance by Tenant
of the terms, provisions and conditions of this Lease. In the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
Lease, including, but not limited to, the payment of Minimum Rent or Additional
Rent, Landlord may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any Minimum Rent and
Additional Rent or any other sum as to which Tenant is in default or for any sum
which Landlord may expend or may be required to expend by reason of Tenant's
default in respect of any of the terms, covenants and conditions of this Lease,
including, but not limited to, any damages or deficiency
35
in the reletting of the Premises, whether such damages or deficiency accrued
before or after summary proceedings or other re-entry by Landlord. Landlord
shall have not duty to hold such security in a trust account and may co-mingle
such security with its own funds. Tenant acknowledges and agrees that no
interest shall be payable to Tenant on such security deposit.
36.2 In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this Lease, the security
shall be returned to Tenant, without interest, within thirty (30) days after the
date fixed as the end of this Lease and after delivery of entire possession of
the Premises to Landlord. In the event of a sale of the Real Property, Landlord
shall have the right to transfer the security to the vendee and, provided the
transferee acknowledges in writing receipt of such security, Landlord shall
thereupon be released by Tenant from all liability for the return of such
security and Tenant shall thereupon look to the new landlord solely for the
return of said security. It is agreed that the provisions hereof shall apply to
every transfer or assignment made of the security to a new landlord.
36.3 Tenant further covenants that it will not assign or encumber or
attempt to assign or encumber the monies deposited herein as security, and that
neither Landlord nor its successor or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
ARTICLE 37
INTENTIONALLY OMITTED
ARTICLE 38
MISCELLANEOUS
38.1 Entire Agreement. This Lease contains the entire agreement between
----------------
the parties, and any attempt hereafter made to change, modify, waive, discharge
or effect an abandonment of it in whole or in part shall be void and ineffective
unless in writing and signed by the party against whom enforcement of the
change, modification, waiver, discharge or abandonments is sought.
38.2 Jury Trial Waiver. Landlord and Tenant do hereby waive trial by jury
-----------------
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matter whatsoever arising out of or in any
connection with this Lease, the relationship of Landlord and Tenant, Tenant's
use or occupancy of the Premises, and/or any claim, injury or damage, or any
emergency or statutory remedy.
38.3 Broker. Tenant represents to Landlord that it has not dealt with any
------
real estate broker or sales representative other than Xxxxxxxx Associates and
Xxxxxx, Xxxxx & Xxxxxxxxx, Inc.. in connection with this Lease. Tenant agrees
to indemnify, defend and hold harmless Landlord and the respective directors,
officers, employees and partners of the foregoing entities or of any partner of
the foregoing entities, from and against all threatened or asserted claims,
liabilities, costs or damages (including reasonable attorneys' fees and
disbursements) which they may incur as a result of a breach of this
representation. Landlord shall pay commissions to
36
the above named brokers pursuant to a separate written agreement between
Landlord and such brokers.
38.4 Separability. If any term or provision of this Lease or the
------------
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby and all other
terms and provisions of this Lease shall be valid and enforced to the fullest
extent permitted by law.
38.5 Interpretation.
--------------
38.5.1 Whenever in this Lease any words of obligation or duty are used,
such words or expressions shall have the same force and effect
as though made in the form of covenants.
38.5.2 Words of any gender used in this Lease shall be held to include
any other gender, and words in the singular number shall be held
to include the plural, when the sense requires.
38.5.3 All pronouns and any variations thereof shall be deemed to refer
to the neuter, masculine, feminine, singular or plural as the
identity of the Tenant requires.
38.5.4 This Lease shall not be strictly construed either against
Landlord or Tenant.
38.5.5 No remedy or election given by any provision in this Lease shall
be deemed exclusive unless so indicated, but each shall,
wherever possible, be cumulative with all other remedies in law
or equity as otherwise specifically provided.
38.5.6 Each provision hereof shall be deemed both a covenant and a
condition and shall run with the land.
38.5.7 If, and to the extent that, any of the provisions of any rider
to this Lease conflict or are otherwise inconsistent with any of
the preceding provisions of this Lease, or of the Rules and
Regulations appended to this Lease, whether or not such
inconsistency is expressly noted in the rider, the provisions of
the rider shall prevail, and in case of inconsistency with said
Rules and Regulations, shall be deemed a waiver of such Rules
and Regulations with respect to Tenant to the extent of such
inconsistency.
38.5.8 Tenant agrees that all of Tenant's covenants and agreements
herein contained providing for the payment of money and Tenant's
covenant to remove mechanics' liens shall be deemed conditions
as well as
37
covenants, and if default be made in any such covenants,
Landlord shall have all of the rights provided for herein.
38.5.9 The parties mutually agree that the Basic Lease Information
cover sheet, headings and captions contained in this Lease are
inserted for convenience of reference only, and are not to be
deemed part of or to be used in construing this Lease. If, and
to the extent that, any of the provisions set forth on the cover
sheet conflict or are otherwise inconsistent with any of the
provisions of the Lease, the provisions of the Lease shall
prevail.
38.5.10 The covenants and agreements herein contained shall, subject to
the provisions of this Lease, bind and inure to the benefit of
Landlord, its successors and assigns, and Tenant, its successors
and assigns, except as otherwise provided herein.
38.5.11 This Lease has been executed and delivered in the State of New
Jersey and shall be construed in accordance with the laws of the
State of New Jersey, and Landlord and Tenant acknowledge that
all of the applicable statutes of the State of New Jersey are
superimposed on the rights, duties and obligations of Landlord
and Tenant hereunder, and this Lease shall not otherwise provide
that which said statutes prohibit.
38.5.12 Landlord has made no representations or promises with respect to
the Premises or the Real Property, except as expressly contained
herein.
38.5.13 Tenant has inspected the Premises and agrees to take the same in
an "as is" condition, except as otherwise expressly set forth
herein.
38.5.14 Landlord shall have no obligation, except as herein set forth,
to do any work in and to the Premises to render them ready for
occupancy and use by Tenant.
38.6 No Recording. Tenant shall not record this Lease or a memorandum
------------
thereof.
38.7 Not Offer, Option, etc. The submission of this Lease to Tenant for
-----------------------
examination does not constitute by Landlord a reservation of, or an option to
Tenant for, the Premises, or an offer to lease on the terms set forth herein,
and this Lease shall become effective as a lease agreement only upon execution
and delivery thereof by Landlord and Tenant.
38.8 Force Majeure. If, by reason of a strike, labor troubles or cause
-------------
beyond Landlord's control, including, but not limited to, governmental
preemption in connection with a national emergency or any rule, order or
regulation of any Governmental Authority, or conditions of supply and demand
which are affected by war or other emergency, Landlord shall be unable to
fulfill its obligations under this Lease or shall be unable to supply any
service which Landlord is obligated to supply, this Lease and Tenant's
obligation to pay Minimum Rent and Additional Rent hereunder shall in no way be
affected, impaired or excused.
38
ARTICLE 39
RENEWAL OPTION
39.1 Provided (a) no Event of Default has occurred and remained uncured as
of the date Tenant exercised its renewal option and (b) Tenant has not assigned
this Lease or sublet all of the Premises, then Tenant shall have the right to
extend the Term for one (1) additional period of five (5) years (the "First
Option Period") by notice given to Landlord not more than one year and less than
one hundred and eighty (180) days prior to the fifth (5/th/) anniversary of the
Commencement Date (time being of the essence with respect to the giving of such
notice). If Tenant exercises its renewal option for a second five year term,
all terms and conditions of this Lease shall remain in effect during the First
Option Period, except that the Minimum Rent shall be computed in the manner set
forth in Exhibit "F". Prior to commencement of the First Option Period,
-----------
Landlord shall not be obligated to perform any work to the Premises.
39.2 Provided (a) no Event of Default has occurred and remained uncured
as of the date Tenant exercised its renewal option and (b) Tenant has not
assigned this Lease or sublet all of the Premises, then Tenant shall have the
right to extend the Term for one (1) additional period of five (5) years (the
"Second Option Period") by notice given to Landlord not more than one year and
less than one hundred and eighty (180) days prior to the tenth (10/th/)
anniversary of the Commencement Date (time being of the essence with respect to
the giving of such notice). If Tenant exercises its renewal option during the
First Option Period, all terms and conditions of this Lease shall remain in
effect during the Second Option Period, except that the Minimum Rent shall be
computed in the manner set forth in Exhibit "F". Prior to the commencement of
-----------
the Second Option Period, Landlord shall not be obligated to perform any work to
the Premises, and Tenant shall not be allowed to extend the Term beyond the
expiration of the Second Option Period.
ARTICLE 40
PROPERTY
Tenant shall purchase from Landlord the personal property and fixtures set
forth in Exhibit G attached hereto ("Property"), as amended by this Article 40,
---------
for $30,000.00, such payment to be made to Landlord at the same time as the
first month's rent and security deposit is paid. Exhibit G shall be amended to
---------
include the security system and to exclude one fax machine and the copier.
Additionally, prior to the Commencement Date, Landlord may, at Landlord's
option, take ownership of certain personal property set forth on Exhibit G,
---------
exclusive of the conference table in the large room, and in such event the
purchase price shall be adjusted accordingly on a pro rata basis and Tenant
shall receive a credit towards the next ensuing installment or installments of
Rent in the amount of the adjustment. Tenant accepts the Property in an "as
is" condition. Landlord makes no representations or warranties regarding the
Property other than as set herein. Landlord has represented to Tenant that the
Property is presently owned by TMF and encumbered by UCC-1 financing statements,
a copy of which have been provided to Tenant's counsel. If Landlord is unable to
transfer to Tenant good and marketable title to the Property free and clear of
all liens, claims and encumbrances (as determined by Tenant's counsel) by
October 1, 1999 (or by such later date if agreed to by Landlord and Tenant),
Tenant may, at Tenant's option, receive either (a) a refund of the purchase
price or (b) a credit
39
in the amount of the purchase price towards the next ensuing installment or
installments of Rent. In such event Tenant shall return the Property to
Landlord. Landlord shall transfer ownership of the Property to Tenant by a Xxxx
of Sale prepared by Landlord and acceptable to Tenant.
ARTICLE 41
OBLIGATION OF TENANT TO LEASE CONTIGUOUS SPACE
41.1 "Contiguous Space" shall mean and refer to 4600 square feet of
rentable space in the Building designated as the "Technology Management 4600 SF"
contiguous to the Premises as shown as Exhibit "B" attached hereto. As long as
-----------
(1) Tenant has fully and faithfully performed all the terms, conditions and
covenants of this Lease on its part to be performed; (2) the Contiguous Space
becomes available for lease during the Term, Landlord shall first notify Tenant
that the Contiguous Space is available by giving Tenant written notice
("Availability Notice") specifying the date of availability of such Contiguous
Space and sending Tenant an addendum to the Lease whereby Tenant shall lease
this Contiguous Space. Within ten (10) calendar days of Tenant's receipt of the
Availability Notice, Tenant shall execute and deliver to Landlord the addendum
to the Lease whereby Tenant shall lease the Contiguous Space for a term to be
the same as the remaining initial Term of this Lease.
41.2 All of the terms, covenants, and conditions of this Lease shall apply
and obtain to the Contiguous Space except that (a) if the Contiguous Space
becomes available in 1999 or 2000, the Minimum Rent shall be $23.50 per square
foot and the Base Year will not change, but if the Contiguous Space becomes
available after 2000, the Minimum Rent shall be computed in the manner set forth
in Exhibit "F" and the Base Year with respect to the Contiguous Space shall be
------------
the year in which the rental of the Contiguous Space commences, and (b) the
Tenant's Proportionate Share, Additional Rent, Security Deposit and all other
charges shall be adjusted accordingly based on an additional 4600 square feet as
part of the Premises, for Premises consisting of a total of 11,010 square feet.
ARTICLE 42
NON-DISTURBANCE
It is agreed that Landlord will exercise its best efforts to secure from the
mortgagee of any mortgage or mortgages currently or hereafter placed on the
Premises an agreement on the part of the mortgagee (i) not to disturb Tenant's
occupancy so long as Tenant performs its obligations under this Lease and (ii)
not unreasonably to withhold or delay any consent or approval required to be
obtained from such mortgagee by Tenant on condition that Tenant, when requested
by the mortgagee, shall execute an attornment agreement to the mortgagee should
the mortgagee succeed to the rights of Landlord under this Lease.
40
ARTICLE 43
CONSENTS, APPROVALS, COMPUTATIONS AND DETERMINATIONS
It is agreed that no consent or approval of Landlord referred to in this
Lease shall be unreasonably withheld or delayed, and that no computation or
determination by Landlord shall be made except in a reasonable manner
ARTICLE 44
LANDLORDS' REPRESENTATIONS AND WARRANTIES
Landlord represents and warrants that:
44.1 Landlord has good and marketable title to the Real Property and
the Building.
44.2 Landlord has no knowledge of any pending or contemplated
condemnation or eminent domain proceeding which would affect the Building or the
Premises or any part thereof and there is no litigation, proceeding (zoning or
otherwise) or governmental investigation pending or, to the knowledge of
Landlord, threatened against Landlord or the Building which would affect the
Building or the Premises.
44.3 There are no pending tax abatement or exemption proceedings and no
existing tax abatements or exemptions, total or partial, in respect of the Real
Property or the Building, nor have any been applied for.
44.4 Neither Landlord nor the Real Property nor the Building is subject
to any order issued by any governmental agency prohibiting the release,
discharge or deposit of, or directing clean-up or payment for clean-up of, any
hazardous or toxic substances, except as disclosed in the report entitled "Phase
I Environmental Site Assessment dated April 26, 1999 prepared by Professional
Services Industries, Inc., Project No. 512-9F006."
41
44.5 Upon delivery of possession of the Premises to Tenant, the
Premises will be in conformity with all applicable laws, orders and regulations
of Governmental Authorities and all building codes, rules, regulations and
standards.
IN WITNESS WHEREOF, the parties hereto have executed this Lease
on the date first above written.
LANDLORD:
XXXXXXXX ASSOCIATES LIMITED
ATTEST: By: Princeton Gateway Corporation, Inc.
/s/ Xxxx X. XxXxxxxx, III
-------------------------------- --------------------------------
Name: Xxxx X. XxXxxxxx, Xx. Name: Xxxx X. XxXxxxxx, III
Title: Secretary Title: President
ATTEST: TENANT:
Medarex, Inc.
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------- --------------------------------
Name: Name: Xxxxxx X. Xxxxxxxx
Title: Title: President and CEO
42
