eResearchTechnology Inc. Contracts
Sample Business Contracts
New Jersey-Bridgewater-1150 Route 22 East Lease - Advance/GLB 2 LLC and eResearchTechnology Inc.
Lease Forms
- Start a state-specific lease for the rental of commercial property. Specify the term and rent due, as well as whether the landlord or tenant is responsible for property taxes, insurance, and maintenance and repairs.
- When a tenant vacates commercial property before the lease term has expired, it may be able to rent the premises to a third party. The tenant would be the sublessor and the third party would be the sublessee. Besides preparing a sublease, both parties will want to review the provisions for assignment or subletting in the original lease agreement between the landlord and the sublessor.
- Tenants of residential property should prepare a sublease agreement if they are seeking to sublease a room or the entire apartment or house to a third party. All parties should review the original lease agreement to see if there are any restrictions on subletting or assigning the premises.
- Triple net leases are a type of commercial leases where the tenant has to pay for property taxes, insurance, utilities, and maintenance, in addition to the monthly rent.
- When renting an office space, tenants should understand the amount of the rent and duration of the lease. Other important terms include whether the space can be subleased, which parties are responsible for maintenance, and whether any furniture and furnishings will be provided.
EXECUTION
8/18/00
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LEASE AGREEMENT BETWEEN
ADVANCE/GLB 2 L.L.C.
AS LANDLORD, AND
eRESEARCHTECHNOLOGY, INC.,
AS TENANT
DATED: AUGUST 18, 2000
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LEASE SUMMARY
Tenant: eRESEARCHTECHNOLOGY, INC., a Delaware corporation
Landlord: ADVANCE/GLB 2 L.L.C., a New Jersey limited liability company
Date of this Lease: August 18, 2000
Premises: Tenant's Rentable Square Feet in the office building commonly known as Advance at Bridgewater III, and
whose street address is 1150 Route 22 East, Bridgewater, New Jersey. The Premises are outlined on the
plan attached to the Lease as Exhibit A. The Building is part of an office park located on the Land. The
"Premises" includes the non-exclusive right to use the common areas of the Building and the Park.
Tenant's Rentable
Square Feet: 30,944 rentable square feet, consisting of 30,944 rentable square feet on the third floor of the
Building.
Building: The office building commonly known as Advance at Bridgewater III, and whose street address is 1150 Route
22 East, Bridgewater, New Jersey, (including the parking areas servicing the Building and other Common
Elements appurtenant thereto as set forth in the Master Deed establishing the Condominium), and
designated as Unit III in Executive Quarters at Bridgewater, a Condominium located on Lot 3 in Block 206
on the Tax Map of the Township of Bridgewater.
Land: The land on which the Park is located and described as Lots 2,3,7,8,9, 10 and 50 in Block 206 on the Tax
Map of the Township of Bridgewater, New Jersey, as described on Exhibit B.
Park: An office park consisting of the Building, together with the existing buildings known as Advance at
Bridgewater I and II, and Phases III and IV to be constructed, as described on Exhibit B.
Tenant
Parking Spaces: One hundred twenty four (124) undesignated non-exclusive spaces and code required visitor parking.
Anticipated
Commencement
Date: November 1, 2000
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Commencement
Date: The earlier of (i) the date the Premises are deemed completed, less the number of Tenant Delay Days,
subject to confirmation and possible amendment pursuant to Section 3(b) and in accordance with Exhibit E
(provided such date shall not be before the Anticipated Commencement Date), or (ii) January 1, 2001.
Expiration
Date: 11:59 p.m. on the last day of the one hundred twentieth (120th) full calendar month following the
Commencement Date, subject to adjustment and earlier termination as provided in the Lease, subject to
confirmation and possible amendment pursuant to Section 3(b) and in accordance with Exhibit E.
Term: Approximately one hundred twenty (120) months, commencing the Commencement Date and ending on the
Expiration Date, subject to adjustment and earlier termination as provided in the Lease.
Renewal Term: One, 5-year term in accordance with Exhibit C.
Permitted Use: General office use in accordance with local codes and in keeping with the class and character of the
Building and for no other purposes.
Basic Rent: Basic Rent is quoted on a per square foot per year gross basis plus Tenant Electric and shall be the
following amounts for the following periods of time:
Lease Year Basic Rent
---------- -----------------------------------------
Years 1-3 $835,488.00 per annum $69,624.00 per
Lease Month
($27.00 per rentable
square foot)
Years 4-6 $886,545.60 per annum $73,878.00 per
Lease Month
($28.65 per rentable
square foot)
Years 7-10 $939,150.40 per annum $78,262.53 per
Lease Month
($30.35 per rentable
square foot)
Prepaid Rent: The first monthly installment of Basic Rent and Tenants Proportionate Expense Share of Operating Costs in
accordance with Section 4(b).
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Construction
Allowance: $28.00/RSF=$866,432.00
Security Deposit: $469,575.18 in cash or by an irrevocable Letter of Credit as provided in Subsection 23(b).
Rentable Square Feet
in Building: 80,068 rentable square feet.
Tenant's
Proportionate Share: 38.6%, which is the percentage obtained by dividing (a) Tenant's Rentable Square Feet by (b) the Rentable
Square Feet in the Building (30,944/80,068).
Base Year: The initial twelve months of occupancy.
Base Operating
Costs: The Operating Costs incurred during the Base Year appropriately adjusted to reflect the Operating Costs
which would have been incurred if the Building was not less than ninety-five percent (95%) occupied
during the entire Base Year.
Late Charge: Five percent (5%) of the delinquent payment.
Interest Rate: The lesser of eighteen (18%) percent per annum or the maximum lawful rate of interest.
Tenant's SIC
Number: 7372, as designated in the Standard Industrial Classification manual prepared by the office of the
Management and Budget in the Executive Office of the President of the United States.
Tenant's Address: Prior to Commencement Date: Following Commencement Date:
-------------------------- ---------------------------
eResearchTechnolgy, Inc. eResearchTechnolgy, Inc.
1125 US Highway Rt. 22 West 1150 Route 22 East,
Bridgewater, New Jersey 08807 Bridgewater, New Jersey 08807
Attention: Cheryl Kaine Attention: Cheryl Kaine
Telephone: 908/704-8010 Telephone:_________________________
Telecopy: 908/704-8218 Telecopy:__________________________
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Guarantor: PRWW, Inc. With a Copy To:
--------------
Duane, Morris & Heckscher LLP
One Liberty Place
Philadelphia, PA 19103-7396
Attention: Thomas Spencer, Esq.
Telephone: 215/979-1000
Telecopy: 215/979-1020
Landlord's For all Notices: With a copy to:
Address: --------------- --------------
Advance/GLB 2 L.L.C. Windels Marx Lane & Mittendorf
c/o The Advance Group, Inc. 120 Albany Street Plaza
1545 State Highway 206 New Brunswick, NJ 08901
Suite 100 Attention: Anthony R. Coscia, Esq.
Bedminster, NJ 07921 Telephone: 732/846-7600
Attention: Peter J. Cocoziello Telecopy: 732/846-8877
Telephone: 908/719-3000
Telecopy: 908/719-9444
Landlord's
Mortgagee: Wells Fargo Bank, or any subsequent mortgagee under any deed of trust, mortgage, or other security
instrument, or any ground lease, master lease, or primary lease, that now or hereafter covers all or any
part of the Premises, the Building or the Land.
Broker: Insignia/ESG Co., Inc.
Utilities in Tenant's
Name: Electric.
HVAC
Overtime: $40.00 per hour.
The foregoing Lease Summary is incorporated into and made a part of the Lease
identified above. If any conflict exists between the Lease Summary and the
Lease, then the Lease shall control.
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TABLE OF CONTENTS
Page
----
1. Definitions.............................................................1
2. Lease Grant.............................................................1
3. Term; Delivery of Possession............................................1
4. Rent....................................................................2
(a) Payment.............................................................2
(b) Operating Costs.....................................................2
5. Use.....................................................................4
6. Landlord's Obligations..................................................5
(a) Services............................................................5
(b) Electric............................................................5
(c) Restoration of Services; Abatement..................................6
7. Improvements; Alterations; Repairs; Maintenance.........................6
(a) Improvements; Alterations...........................................6
(b) Repairs; Maintenance................................................6
(c) Performance of Work.................................................7
(d) Construction Liens..................................................7
8. Assignment and Subletting...............................................8
(a) Transfers...........................................................8
(b) Consent Standards...................................................8
(c) Request for Consent.................................................9
(d) Conditions to Consent...............................................9
(e) Cancellation........................................................9
(f) Additional Compensation............................................10
(g) Joint and Several Liability........................................10
9. Insurance; Waiver of Subrogation; Indemnity............................10
(a) Insurance..........................................................10
(b) Waiver of Subrogation..............................................12
(c) Indemnity..........................................................12
(d) Landlord's Insurance...............................................12
10. Subordination and Non-Disturbance; Attornment;
Notice to Landlord's Mortgagee.....................................12
(a) Subordination and Non-Disturbance..................................12
(b) Attornment.........................................................13
(c) Notice to Landlord's Mortgagee.....................................13
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(d) Landlord's Mortgagee's Protection Provisions.......................13
11. Rules and Regulations..................................................13
12.1 Condemnation...........................................................14
(a) Total Taking.......................................................14
(b) Partial Taking.....................................................14
(c) Landlord's Termination Right.......................................14
(d) Tenant's Termination Right.........................................14
(e) Apportionment of Rent..............................................14
12.2. Awards.................................................................15
12.3. Temporary Taking.......................................................15
13. Fire or Other Casualty.................................................15
13.1 Restoration............................................................15
13.2. Landlord's Termination Right...........................................15
13.3. Tenant's Termination Right.............................................16
13.4. Inability to Collect...................................................16
14. Environmental Compliance...............................................16
15. Personal Property Taxes................................................19
16. Default................................................................19
17. Payment by Tenant; Non-Waiver..........................................21
(a) Payment by Tenant..................................................21
(b) No Waiver..........................................................21
18. Surrender of Premises..................................................22
19. Holding Over...........................................................22
20. Certain Rights Reserved by Landlord....................................22
21. Intentionally Omitted..................................................23
22. Parking................................................................23
23. Security Deposit.......................................................23
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24. Miscellaneous..........................................................25
(a) Landlord Transfer..................................................25
(b) Landlord's Liability...............................................25
(c) Force Majeure......................................................25
(d) Brokerage..........................................................25
(e) Estoppel Certificates..............................................25
(f) Notices............................................................25
(g) Separability.......................................................26
(h) Amendments and Binding Effect......................................26
(i) Quiet Enjoyment....................................................26
(j) No Merger..........................................................26
(k) No Offer...........................................................26
(l) Entire Agreement...................................................26
(m) Waiver of Jury Trial...............................................26
(n) Governing Law......................................................27
(o) Joint and Several Liability........................................27
(p) Financial Reports..................................................27
(q) Landlord's Fees....................................................27
(r) Telecommunications.................................................27
(s) Confidentiality....................................................27
(t) Exhibits...........................................................28
(u) Definitions........................................................28
25. Other Provisions.......................................................28
LIST OF EXHIBITS
Exhibit A - Plan of Premises
Exhibit B - Description of Land and/or Site Plan
Exhibit C - Renewal Option
Exhibit D - Tenant Work Letter
Exhibit D-1 - Standard Tenant Improvements
Exhibit E - Amendment No. 1 - Commencement Date Agreement
Exhibit F - Guaranty
Exhibit G - Cleaning Specifications
Exhibit H - Rules and Regulations
Exhibit I - Form of Tenant Estoppel Certificate
Exhibit J - Intentionally Omitted
Exhibit K - Intentionally Omitted
Exhibit L - Intentionally Omitted
Exhibit N - Intentionally Omitted
Exhibit M - Intentionally Omitted
Exhibit O - Signage
Exhibit P - Operating Costs Estimate
Exhibit Q - Operating Costs Exclusions
Exhibit R - Landlord's Insurance
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LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as of the Date of
this Lease, ADVANCE/GLB 2 L.L.C., a New Jersey limited liability company
("Landlord"), and eRESEARCHTECHNOLOGY, INC., a Delaware corporation ("Tenant").
1. Definitions. The Lease Summary is incorporated herein by reference
for all purposes. All other terms shall have the meanings set forth herein.
2. Lease Grant. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, the Premises for the Term, and hereby
grants to Tenant the non- exclusive right to use the common areas designated on
the plan attached as Exhibit B hereto, subject to those areas reserved to
Landlord and subject to Landlord's reasonable rules and regulations governing
such use.
3. Term; Delivery of Possession.
(a) The Term of this Lease shall commence on the Commencement Date
and end on the Expiration Date unless the Term shall sooner or later cease and
terminate as provided for under the specific terms of this Lease.
(b) Landlord agrees to provide the Work (as such term is defined in
Exhibit D annexed hereto and made a part hereof) in accordance with the terms,
conditions and provisions of Exhibit D. Tenant shall occupy the Premises as soon
as the Premises shall be deemed completed for Tenant's occupancy and the
Anticipated Commencement Date shall have occurred (but not prior to such date
without the express written consent of Landlord). The Premises shall be deemed
completed on the date that: (1) a certificate of occupancy (temporary or final)
for the Premises for the Permitted Use has been issued to the Landlord by the
appropriate governmental authority; and (2) the Work shall have been completed,
other than (A) minor or insubstantial details of construction, mechanical
adjustment or decoration, the non-completion of which do not materially
interfere with Tenant's intended use of the Premises, and (B) any part of the
Work which is not completed due to a delay in performance of the Work described
in Paragraph 3 of Exhibit D. If a temporary certificate of occupancy is
obtained, Landlord covenants to obtain a final certificate of occupancy, at its
sole cost and expense, within the required time period set forth in any
temporary certificate of occupancy. In the event, however, a final certificate
of occupancy cannot be furnished until any fixture work to be performed by
Tenant ("Tenant's Work") is complete, then, in such event, this condition shall
not accrue until any such Tenant's Work is complete. If the Premises are not
deemed completed by the Anticipated Commencement Date, Landlord shall not be in
default hereunder or be liable for damages therefor. Landlord and Tenant shall
execute within fifteen (15) days after the date the Premises are deemed
completed for Tenant's occupancy, an amendment substantially in the form of
Exhibit E hereto. Notwithstanding the foregoing, if the Premises are not deemed
completed by February 1, 2001 (subject to Force Mejeure and Tenant Delay Day
extensions), then Tenant may terminate this Lease upon not less than 10 days
written notice to Landlord, in which event this Lease shall terminate and the
parties hereto shall have no further liability to the other except as specified
herein.
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4. Rent.
(a) Payment. Commencing on the Commencement Date, Tenant shall
timely pay to Landlord all Basic Rent and Additional Rent (collectively,
"Rent"), without deduction or set-off, at Landlord's Address or as otherwise
specified by Landlord. Basic Rent, adjusted as herein provided, and Tenant's
Proportionate Share of Operating Costs (in accordance with Section 4(b)), shall
be payable monthly in advance. The first monthly installment of Basic Rent and
Tenant's Proportionate Share of Operating Costs shall be payable
contemporaneously with the execution of this Lease; thereafter, Basic Rent and
Tenant's Proportionate Share of Operating Costs shall be payable on the first
day of each month beginning on the first day of the second full calendar month
of the Term. The monthly Basic Rent for any partial month at the beginning of
the Term shall be prorated based on a 365 day year. Tenant shall pay all other
sums that Tenant may owe to Landlord or otherwise be required to pay under this
Lease other than Basic Rent ("Additional Rent") within thirty (30) days
following Tenant's receipt of an invoice setting forth the sums that are due;
provided, however, that the parties acknowledge that Tenant shall pay Tenant's
Electric and Tenant's Proportionate Share of Operating Costs in accordance with
Section 4(b) hereof. If Landlord, at any time or times, shall accept Rent after
the same shall become due and payable, such acceptance shall not excuse delay
upon subsequent occasions, or constitute, or be construed as, a waiver of any of
Landlord's rights hereunder.
(b) Operating Costs.
(1) Tenant shall pay an amount equal to Tenant's Proportionate
Share of Operating Costs. Landlord shall make a good faith estimate of
Tenant's Proportionate Share of Operating Costs for any calendar year
or part thereof during the Term, and Tenant shall pay to Landlord, on
the Commencement Date and on the first day of each calendar month
thereafter, in advance, an amount equal to Tenant's Proportionate Share
of Operating Costs for such calendar year or part thereof divided by
the number of months therein. Initially, Tenant shall pay Landlord
$6.99 per Tenant's Rentable Square Feet per annum as the Expense
Estimate. Tenant shall nevertheless be responsible for the actual
Tenant's Proportionate Share of Operating Costs regardless of the
estimate. Except for snow removal, Landlord shall cap any increase in
the Expense Estimate at seven percent (7%) during the initial twelve
(12) months of occupancy. From time to time (but not more than one time
each year), Landlord may re-calculate the Expense Estimate and deliver
a copy of the re- calculation to Tenant. Thereafter, the monthly
installments of Tenant's Proportionate Share of Operating Costs shall
be appropriately adjusted in accordance with the Expense Estimate so
that, by the end of the calendar year in question, Tenant shall have
paid all of Tenant's Proportionate Share of Operating Costs as
calculated by Landlord. Any amounts paid based on the Expense Estimate
shall be subject to adjustment as herein provided when actual Operating
Costs are available for each calendar year.
"Operating Costs" shall include all expenses and disbursements
(subject to the limitations set forth below) that Landlord incurs in
connection with the ownership, operation, and maintenance of the
Building and the Land, determined in accordance with GAAP, including
the following costs: (1) reasonable wages and salaries (including
management fees) of all employees engaged in the operation,
maintenance, and security of the Building, including taxes, insurance
and benefits relating thereto; (2) all supplies and
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materials used in the operation, maintenance, repair, replacement, and
security of the Building; (3) costs for improvements made to the
Building which, although capital in nature, are reasonably likely to
reduce the normal operating costs (including all utility costs) of the
Building, as well as capital improvements made in order to comply with
any law hereafter promulgated by any governmental authority, as
amortized over the useful economic life of such improvements as
determined by Landlord in its reasonable discretion; (4) cost of all
utilities and services, except for the cost of utilities and services
separately billed or metered to any tenants in the Building; (5)
insurance expenses; (6) repairs, replacements, and general maintenance
of any facility or existing systems of the Building; (7) service or
maintenance contracts or costs incurred by Landlord for the operation,
maintenance, repair, replacement, or security of the Building
(including alarm service, window cleaning, elevator maintenance,
landscaping, snow removal, parking lot maintenance and refuse
collection); (8) expenses and disbursements that Landlord incurs in
connection with the ownership, operation and maintenance of the Park,
as set forth in the master deed establishing the condominium in which
the Premises are located; (9)Taxes; (10) Management fees (and for as
long as the current Landlord owns the Building, not to exceed 5% of the
Building's gross Rent); and (11) any other Building expenses noted on
Exhibit P. In determining the amount of Base Operating Costs or the
Operating Costs for any subsequent year, if less than ninety-five
percent (95%) of the rentable area of the Building shall have been
occupied by tenant(s) at anytime during the applicable year, Operating
Costs shall be determined for such year to be an amount equal to the
like expenses which would normally be expected to be reasonably
incurred had such occupancy been ninety-five percent (95%) throughout
such year.
Notwithstanding anything set forth contrary,
Operating Costs shall not include Operating Cost Exclusions, as defined
in Exhibit Q hereto.
"Taxes" shall mean taxes, assessments, and
governmental charges whether federal, state, county or municipal, and
whether they be by taxing districts or authorities presently taxing or
by others, subsequently created or otherwise, and any other taxes and
assessments attributable to the Building (or its operation), excluding,
however, penalties and interest thereon and federal and state taxes on
income (if the present method of taxation changes so that in lieu of
the whole or any part of any Taxes, there is levied on Landlord a
capital tax directly on the rents received therefrom or a franchise
tax, assessment, or charge based, in whole or in part, upon such rents
for the Building, then all such taxes, assessments, or charges, or the
part thereof so based, shall be deemed to be included within the term
"Taxes" for purposes hereof). Taxes shall include the costs of
consultants retained in an effort to lower taxes and all costs incurred
in disputing any taxes or in seeking to lower the tax valuation of the
Building. For property tax purposes, Tenant waives all rights to
protest or appeal the appraised value of the Premises, as well as the
Building, and all rights to receive notices of reappraisement.
(2) By April 1 of each calendar year, or as soon
thereafter as practicable, Landlord shall furnish to Tenant a statement
of Operating Costs for the previous year (the "Operating Costs
Statement"). If the Operating Costs Statement reveals that Tenant paid
more than Tenant's Proportionate Share of Operating Costs for the year
for which such statement was prepared, then Landlord shall promptly
credit or reimburse Tenant for such
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excess; likewise, if Tenant paid less than Tenant's Proportionate Share
of Operating Costs actually due, then Tenant shall promptly pay
Landlord such deficiency.
(3) Landlord agrees to maintain complete records of
all Operating Costs reimbursable by Tenant under the terms of this
Lease. All such records shall be maintained in accordance with GAAP and
shall be retained for a period of two (2) years following the date on
which such costs were charged to Tenant. Tenant shall have the right to
designate an independent certified public accounting firm to examine,
copy and audit such records at all reasonable times (but not more than
one time each year), upon ten (10) days advance written notice;
provided such audit shall take place during normal business hours at
Landlord's office and the results of such audit shall be delivered to
Landlord within sixty (60) days following such audit request. Each
Operating Costs Statement shall be conclusive and binding upon Tenant
unless, within three (3) months after the date Tenant receives such
Operating Costs Statement, Tenant shall notify Landlord that it
disputes the correctness of the Operating Costs Statement; provided,
however, that with respect to the Operating Costs relating to the first
twelve (12) Lease Months, Tenant shall have the right to dispute the
correctness of such statement within six (6) Lease Months after the
date Tenant receives such statement. In connection therewith, Tenant
and such accountants (and Tenant's attorneys) shall execute and deliver
to Landlord a confidentiality agreement, in form and substance
reasonably satisfactory to Landlord and Tenant, whereby such parties
agree not to disclose to any third- party any of the information
obtained, or conclusions reached, in connection with such review, or
that such review was undertaken, unless (and only to the extent) such
disclosure is required by law; provided, further, that Tenant and such
accountants and attorneys shall not disclose the existence, or nature,
of any such litigation unless such disclosure is required pursuant to
the provisions of this Lease.
If it is determined by such audit that Landlord had
overcharged Tenant, Landlord shall promptly credit or refund to Tenant
any overpayment. In the event such audit discloses an undercharge of
such items as billed to Tenant, Tenant shall pay Landlord the amount of
such undercharge within thirty (30) days of completion of such audit.
(c) All past due payments required of Tenant hereunder shall
bear interest from the date due until paid at the Interest Rate; additionally,
Landlord may charge Tenant the Late Charge to reimburse Landlord for its cost
and inconvenience incurred as a consequence of Tenant's delinquency. In no
event, however, shall the charges permitted under this Lease, to the extent they
are considered to be interest under applicable federal, state, and local laws,
rules and regulations, all court orders, governmental directives, and
governmental orders, and all restrictive covenants affecting the Premises
("Laws"), exceed the maximum lawful rate of interest.
5. Use. Tenant shall continuously occupy and use the Premises only for
the Permitted Use and shall comply, at its sole cost, with all Laws relating to
the use, condition, access to, and occupancy of the Premises. Tenant shall have
access to the Premises after Business Hours, so long as Tenant is not generally
conducting business from the Premises after Business Hours, subject to the other
provisions of this Lease. Landlord, however, reserves the right to reasonably
limit or regulate access to the Building during nights and weekends, if
required, to insure security of the Building and the Park. If, because of
Tenant's or a Tenant Party's acts, the rate of insurance on the
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Land, the Building or its contents increases, Tenant shall pay to Landlord the
amount of such increase on demand, as Additional Rent, and acceptance of such
payment shall not waive any of Landlord's other rights. Tenant shall conduct its
business and control any assignees or subtenants claiming by, through, or under
Tenant or any of their respective agents, contractors, employees and invitees
(each a "Tenant Party") so as not to create any nuisance or unreasonably
interfere with other tenants or Landlord in its management of the Building.
6. Landlord's Obligations.
(a) Services. Landlord shall, subject to Force Majeure,
furnish to Tenant, consistent with general office use, the following: (1)
reasonably adequate hot and cold water for Tenant's use for ordinary drinking,
lavatory and cleaning purposes; (2) heating, ventilation and refrigerated air
conditioning system ("HVAC"), as appropriate, during Business Hours, at such
temperatures and in such amounts as are set forth on Exhibit D-1; (3) janitorial
service, in accordance with the Cleaning Specifications attached as Exhibit G,
any areas of the Premises requiring additional cleaning shall be done, at
Tenant's sole expense, by Landlord's contractor whose rates shall be competitive
with rates of other such contractors in the vicinity of the Building; (4)
elevators for ingress and egress to the floor on which the Premises are located,
in common with other tenants, provided that Landlord may reasonably limit the
number of operating elevators during non-Business Hours and holidays; (5) snow
and ice removal for the parking area, sidewalks and driveways of the Building;
and (6) electrical current for general office lighting and customary office
machines that do not require more than 110-220 volts. Landlord shall maintain
the common areas of the Building and the Park in reasonably good order and
condition, provided, however, that any damage caused by Tenant or a Tenant Party
shall be repaired by Landlord at Tenant's sole cost and expense.
(b) Electric. Landlord shall arrange to obtain electric energy
to service the fixtures located within the Premises, at Tenant's sole cost,
directly from the public utility company furnishing electric service to the
Building; provided, however, that Landlord shall pay certain costs associated
therewith in accordance with Exhibit D and Tenant shall pay all charges as
measured thereby. Such electric energy shall be furnished to Tenant by means of
the existing Building panel boards, feeders, risers, wiring and other conductors
and equipment. Tenant shall not install any electrical equipment requiring
special wiring or requiring voltage in excess of 220 volts or otherwise
exceeding Building capacity without the prior written consent of Landlord, which
shall not be unreasonably withheld, delayed or conditioned. The use of
electricity in the Premises shall not exceed the capacity of existing feeders
and risers to or wiring in the Premises. Any risers or wiring required to meet
Tenant's excess electrical requirements shall, upon Tenant's written request, be
installed by Landlord, at Tenant's reasonable cost, if, in Landlord's reasonable
judgment, the same are necessary and shall not cause permanent damage to the
Building or the Premises, cause or create a dangerous or hazardous condition,
entail excessive or unreasonable alterations, repairs, or expenses, or interfere
with or disturb other tenants of the Building. If Tenant uses machines or
equipment in the Premises which affect the temperature otherwise maintained by
the air conditioning system or otherwise overload any utility, Landlord,
following notice to Tenant and Tenant's failure to remove such machines or
equipment within five (5) business days of such notice, may install supplemental
air conditioning units or other supplemental equipment in the Premises, and the
reasonable cost thereof, including the cost of installation, operation, use, and
maintenance, shall be paid by Tenant to Landlord as Additional Rent.
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(c) Restoration of Services; Abatement. Landlord shall use
reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render Landlord liable for
any damages (including consequential damages) caused thereby, be a constructive
eviction of Tenant, constitute a breach of any implied warranty, or entitle
Tenant to any abatement of Tenant's obligations hereunder. Notwithstanding the
foregoing, if Tenant is precluded from using, and does not use and occupy, the
Premises (or a portion thereof) because the Premises are untenantable for a
period in excess of fifteen (15) consecutive days after Landlord receives
written notice of same from Tenant as a result of the unavailability of such
services, then, provided such untenantability did not result from the negligence
or willful misconduct of Tenant or any Tenant Party, the Rent (or a pro-rated
portion thereof if only a portion of the Premises is untenantable) shall be
abated on a per diem basis for the period of time commencing on the sixteenth
(16th) day following receipt of the notice by Landlord until such time as Tenant
reoccupies, or is able to reoccupy, the Premises or such portion thereof, as
applicable. Notwithstanding the foregoing, the parties acknowledge that Tenant's
right under this paragraph shall not be an exclusive remedy of Tenant but
Landlord shall not be liable to Tenant for any unavailability of services unless
same is solely caused by the intentional acts or gross negligence of Landlord.
7. Improvements; Alterations; Repairs; Maintenance.
(a) Improvements; Alterations. Improvements or alterations to
the Premises shall be installed and/or made at Tenant's expense only in
accordance with plans and specifications which have been previously submitted to
and approved in writing by Landlord. Improvements or alterations in or to the
Premises which shall cost less than $10,000.00 in the aggregate and which do not
affect the Building's structure or its HVAC, plumbing, electrical, or mechanical
systems, may be made without Landlord's prior written consent. All other
improvements or alterations may only be made with Landlord's consent, which
shall not be unreasonably withheld or delayed, however, Landlord may withhold
its consent, in its sole discretion, to any alteration or addition that would
affect the Building's structure or its HVAC, plumbing, electrical, or mechanical
systems. All alterations, additions, and improvements shall be constructed,
maintained, and used by Tenant, at its risk and expense, in accordance with all
Laws; Landlord's approval of the plans and specifications therefor shall not be
a representation by Landlord that such alterations, additions, or improvements
comply with any Law.
(b) Repairs; Maintenance.
(1) Tenant shall, at its sole cost, repair and
maintain the Premises (including all fixtures, appurtenances and
equipment therein but excluding structural repairs and maintenance) in
a clean, safe, and operable condition, and shall not permit or allow to
remain any waste or damage to any portion of the Premises, including
damage to any painted walls, carpeting, and ceiling tiles; provided,
however, that all carpet stains shall be promptly reported to Landlord,
who may have the stains cleaned and charge the cost thereof to Tenant
as Additional Rent. In addition, Tenant shall repair or replace,
subject to Landlord's direction and supervision, any damage to the
Building and/or the Park caused by Tenant or a Tenant Party. If Tenant
fails to make such repairs or replacements within fifteen (15) days
after the occurrence of such damage or if such repairs or replacements
affect the structure of the Building or the Building mechanical
systems, then Landlord may, at Landlord's option, make the same and the
actual, reasonable costs shall be paid by Tenant. If any such damage
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occurs outside of the Premises, then Landlord may elect to repair such
damage at Tenant's expense. The cost of all repair or replacement work
performed by Landlord under this Section 7(b)(1) shall be paid by
Tenant to Landlord as Additional Rent.
(2) Subject to Tenant's obligations to repair or
replace as provided in Section 7(b)(1) above, during the Term, Landlord
shall, at its sole expense, perform diligently, promptly and in a good
and workmanlike manner, in accordance with all Laws, all maintenance,
repairs and replacements to (i) the structural components of the
Building, including without limitation the roof deck, exterior walls,
support beams, foundations, columns, exterior doors and windows and
lateral support to the Building; and (ii) the Building and the Premises
caused by the negligence or willful misconduct of Landlord, its agents,
independent contractors, representatives or employees. Notwithstanding
the foregoing, any maintenance or repair required hereunder that is
caused by the negligence or willful misconduct of Tenant or a Tenant
Party shall be repaired or replaced by Landlord at Tenant's sole cost
and expense.
(c) Performance of Work. Except as specifically set forth
herein to the contrary, all work, including all repairs, maintenance and
replacements, described in this Section 7 shall be performed only by Landlord or
by contractors and subcontractors approved in writing by Landlord or by
contractors and subcontractors selected by Tenant and approved in writing by
Landlord. If Tenant is required or permitted to do such work, then Tenant shall
cause all contractors and subcontractors to procure and maintain insurance
coverage naming Landlord as an additional insured against such risks, in such
amounts, on such terms and with such companies as Landlord may reasonably
require. All such work shall be performed in accordance with all Laws, all non-
discriminatory, reasonable requirements established by Landlord, and in a good
and workmanlike manner so as not to damage the Building (including the Premises,
the structural elements, and the plumbing, electrical lines, or other utility
transmission facility). All such work which may affect the Building's HVAC,
electrical, plumbing, other mechanical systems, or structural elements must be
approved in writing by Landlord and, if required by Landlord, by the Building's
engineer of record, at Tenant's expense and, at Landlord's election, such work
must be performed by Landlord's usual contractor for work of such type.
(d) Construction Liens. Unless otherwise provided by Law, any
contract(s) executed by Tenant for alterations, additions or improvements to the
Premises which Landlord permits Tenant to do pursuant to this Section 7, whether
in the nature of erection, construction, alteration or repair, shall not be
deemed to have been authorized by Landlord merely by reason of any consent given
by Landlord to Tenant to improve the Premises unless Landlord specifically
reviews such contract(s) and consents in writing to such contract(s). Landlord,
in granting its consent to Tenant for any such alterations, additions or
improvements to the Premises, shall have no obligation to authorize in writing
any contract(s) executed by Tenant for such work, it being the intention of the
parties that to the extent permitted by the New Jersey Construction Lien Law,
N.J.S.A. 2A:44A-1 et seq. or any successor or replacement statute (the
"Construction Lien Law") any liens by any contractor, subcontractor or supplier
who provides work, services, material or equipment to Tenant pursuant to such
contract(s) shall attach only to the leasehold interest of Tenant. Tenant shall
pay promptly all persons furnishing work, equipment, services or materials with
respect to any work performed by Tenant or its contractor on or about the
Premises. In the event any construction or other liens or any other notices of
claim, including, without limitation any Notice of
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Unpaid Balance and Right to File Lien ("lien"), shall at any time be filed
against the Premises, the Land, the Building and/or the Park pursuant to the
Construction Lien Law by reason of work, services, equipment or materials
performed or furnished to Tenant or to anyone holding the Premises through or
under Tenant, Tenant shall immediately notify Landlord of the same and shall
cause the same to be discharged by paying the claimant and obtaining a discharge
or by filing a surety bond or making a deposit of funds with the Clerk of the
Superior Court of New Jersey as provided in N.J.S.A. 2A:44A-31. If Tenant shall
fail to cause such lien to be so discharged in compliance with all the
provisions of the Construction Lien Law within fifteen (15) business days after
being notified of the filing thereof, then, in addition to any other right or
remedy of Landlord, Landlord may discharge the same by paying the amount claimed
to be due and the amount so paid by Landlord together with interest thereon at
three (3%) percent over the Prime Rate and all costs and expenses, including
reasonable attorneys' fees incurred by Landlord in procuring the discharge of
such lien, shall be due and payable by Tenant to the Landlord as Additional Rent
on the first day of the next following month, or may, at the Landlord's
election, be subtracted from any sums owing to Tenant. Tenant shall provide
Landlord with copies of any contracts, subcontracts, and any amendments thereto
with respect to any work performed by Tenant or its contractor(s) on or about
the Premises within ten (10) days of execution of same. Tenant, without further
request, written or oral, is hereby required and agrees to provide Landlord each
month during any period work is performed by Tenant or its contractor(s) on or
about the Premises with an accurate and full list, verified under oath, of the
names and addresses of each contractor, subcontractor, construction manager,
design professional, supplier or other persons or entities providing work,
services, materials or equipment who may have a right to file a lien pursuant to
the Construction Lien Law, which list shall be in compliance with all provisions
of the Construction Lien Law. All materialmen, contractors, artisans, mechanics,
laborers, and any other persons now or hereafter contracting with Tenant or any
contractor or subcontractor of Tenant for the furnishing of any labor services,
materials, supplies, or equipment with respect to any portion of the Premises,
at any time from the date hereof until the end of the Term, are hereby charged
with notice that they look exclusively to Tenant to obtain payment for same.
Nothing contained herein shall be deemed as the consent by Landlord to any liens
being placed upon the Premises, the Building, the Land or the Park due to any
work performed by or for Tenant.
8. Assignment and Subletting.
(a) Transfers. Tenant shall not, without the prior written
consent of Landlord: (1) assign, transfer, or encumber this Lease or any estate
or interest herein, whether directly or by operation of law, (2) permit any
other entity to become Tenant hereunder by merger, consolidation, or other
reorganization, (3) if Tenant is an entity other than a corporation whose stock
is publicly traded, permit the transfer of a legal or beneficial ownership
interest in Tenant so as to result in a change in the control of Tenant as of
the Date of this Lease, (4) sublet any portion of the Premises, (5) grant any
license, concession, or other right of occupancy of any portion of the Premises,
or (6) permit the use of the Premises by any parties other than Tenant (each, a
"Transfer"). The parties acknowledge that any assignee or subtenant shall not
have the right to any further Transfer of the Premises or this Lease.
(b) Consent Standards. Subject to Landlord's right to cancel
pursuant to Section 8(e) below, Landlord shall not unreasonably withhold its
consent to any assignment or subletting of the Premises, provided that the
proposed transferee (1) is sufficiently creditworthy to meet its
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obligations pursuant to such transfer, (2) has a good reputation in the business
community, (3) will use the Premises for the Permitted Use and will not use the
Premises in any manner that would conflict with any exclusive use agreement or
other similar agreement entered into by Landlord with any other tenant of the
Building, and (4) is not another occupant of the Building or person or entity
with whom Landlord is negotiating to lease space; otherwise, Landlord may
withhold its consent in its sole discretion. Notwithstanding the foregoing,
Tenant may assign its interest in this Lease to an Affiliate of Tenant or sublet
the Premises to an Affiliate of Tenant without Landlord's prior written consent,
provided that Tenant promptly notifies Landlord thereof after such assignment or
subletting. The term "Affiliate" means any entity which directly controls, is
controlled by, or is under common control with Tenant.
(c) Request for Consent. If Tenant requests Landlord's consent
to a Transfer, then Tenant shall provide Landlord with a written description of
all terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and other credit
information; general references sufficient to enable Landlord to determine the
proposed transferee's creditworthiness and character; and such other
documentation and information Landlord reasonably requests. Tenant shall
reimburse Landlord immediately upon request for its reasonable attorneys'
fees(not to exceed $1,500.00) incurred in connection with considering any
request for consent to a Transfer.
(d) Conditions to Consent. If Landlord consents to a proposed
Transfer which involves an assignment of this Lease, then the proposed assignee
shall deliver to Landlord a written agreement whereby it expressly assumes
Tenant's obligations hereunder as of the effective date of the assignment.
Landlord's consent to any Transfer shall not waive Landlord's rights as to any
subsequent Transfers. If an Event of Default occurs while the Premises or any
part thereof are subject to a Transfer, then Landlord, in addition to its other
remedies, may collect directly from such transferee all rents becoming due to
Tenant and apply such rents against Rent. Tenant authorizes its transferees to
make payments of rent directly to Landlord upon receipt of notice from Landlord
to do so.
(e) Cancellation. Landlord may, within ten (10) days after
submission of Tenant's written request for Landlord's consent to an assignment
or subletting, cancel this Lease as to the portion of the Premises proposed to
be sublet or assigned as of the date the proposed Transfer is to be effective by
sending a written notice to Tenant ("Landlord's Termination Notice"). If
Landlord cancels this Lease as to any portion of the Premises, then this Lease
shall cease for such portion of the Premises and Tenant shall pay to Landlord
all Rent accrued through the cancellation date relating to the portion of the
Premises covered by the proposed Transfer. Thereafter, Landlord may lease such
portion of the Premises to the prospective transferee (or to any other person)
without liability to Tenant. Upon such cancellation of the Lease as to any
portion of the Premises (1) Landlord shall have the right, at Tenant's sole cost
and expense, at all times to provide and permit reasonably appropriate means of
ingress to and egress from such portion of the Premises, (2) Landlord may, at
Tenant's expense, make such alterations as may be reasonably required or
reasonably deemed necessary by Landlord to physically separate such space from
the balance of the Premises and to comply with any requirements of Law or
insurance requirements relating to such separation, and (3) if applicable,
Landlord may, at Tenant's expense, make such alterations and
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improvements in order to install common area public bathrooms, corridors and an
elevator so as to convert the floor in which such portion of the Premises is
located into a multi-tenanted floor. Notwithstanding anything to the contrary
contained above in this subparagraph (e), Tenant shall have the right to rescind
Tenant's Intent to Transfer and abrogate Landlord's Termination Notice, if,
within ten (10) days of Tenant's receipt of Landlord's Termination Notice,
Tenant delivers written notice to Landlord of Tenant's election to rescind
because of Tenant's objection to payment of the estimated costs referred to in
Landlord's Termination Notice.
(f) Additional Compensation. Tenant shall pay to Landlord,
within five (5) business days after receipt thereof, fifty percent (50%) of the
excess of (1) all compensation received by Tenant in connection with a Transfer
less the costs reasonably incurred by Tenant with unaffiliated third parties in
connection with such Transfer (i.e., tenant improvements, reasonable legal fees
and brokerage commissions) over (2) the Rent allocable to the portion of the
Premises covered thereby.
(g) Joint and Several Liability. Any assignment whether made
with, or, if permitted, without Landlord's consent shall be made only if, and
shall not be effective until, the assignee shall execute, acknowledge and
deliver to Landlord an agreement in form and substance reasonably satisfactory
to Landlord whereby the assignee shall assume, from and after the effective date
of such assignment, the obligations of this Lease on the part of Tenant to be
performed or observed. The original named Tenant (and any subsequent permitted
assignor of this Lease) covenants that, notwithstanding any assignment or
Transfer, whether or not in violation of the provisions of this Lease and
notwithstanding the acceptance of any Rent by Landlord from an assignee or any
other party, the original named Tenant shall remain fully liable for the payment
of Basic Rent and Additional Rent and for the other obligations of this Lease on
the part of Tenant to be performed or observed. The joint and several liability
of Tenant and any immediate or remote successor-in-interest of Tenant and the
due performance of the obligations of this Lease on Tenant's part to be
performed or observed shall not be discharged, released or impaired in any
respect by any agreement or stipulation made by Landlord extending the time of,
or modifying any of the obligations of, this Lease, or by any waiver or failure
of Landlord to enforce any of the obligations of this Lease; provided, however,
that in the case of any modification of this Lease which increases the
obligations of Tenant, Tenant herein named shall not be liable for any such
increase unless it has given its written consent thereto.
9. Insurance; Waiver of Subrogation; Indemnity.
(a) Insurance. Tenant shall maintain throughout the Term the
following insurance policies (the "Policies"):
(1) Commercial general liability insurance on an
occurrence form, including blanket contractual liability sufficient to
cover Tenant's indemnity obligations hereunder, insuring against any
and all liability of the Tenant or claims of liability of Tenant
arising out of, occasioned by or resulting from any accident or
otherwise resulting in or about the Premises, the Building and the
Park, in such amounts as are usually carried by entities leasing
properties similar to the Premises, but in any event with a combined
single limit of not less than $1,000,000.00 for bodily injury and
property damage with respect to any one occurrence, which amount shall
be increased from time to time to reflect what a reasonably
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prudent person or entity leasing property similar to the Premises would
carry, together with excess/umbrella liability insurance on a "follow
form" basis with minimum limits of $5,000,000.00. The commercial
general liability policy must include the standard coverages of
premises/operations and products/completed operations;
(2) Loss or damage by perils customarily included
under standard "all risk" policies, covering all perils and
contingencies as may be required by the Landlord, including a
replacement cost endorsement insuring one hundred percent (100%) of the
replacement cost of the Tenant's property, fixtures and improvements,
and other property (including property of others) in the Premises, as
set forth in the attached Schedule 9-1;
(3) For any period during which construction is being
performed on the Premises by Tenant, "builder's all risk" coverage
policy of fire and hazard insurance (completed value non-reporting
form) with respect to the Premises, including vandalism and malicious
mischief, in an amount not less than the full replacement cost of the
improvements which are the subject of construction, which insurance
policy shall contain a replacement cost endorsement. This policy must
name Landlord and The Advance Group, Inc. as additional insured;
(4) Worker's compensation insurance to the full
extent required by New Jersey state law for all employees of the Tenant
engaged in any work on or about the Premises with minimum employer's
liability limits of $500,000.00/$500,000.00/$500,000.00, and containing
a commercially reasonable waiver of subrogation endorsement;
(5) Business interruption insurance in an amount
equal to one (1) year's loss of gross earnings and the extra expense
that could result from the cessation of the business conducted by
Tenant at the Premises;
(6) Automobile liability insurance with a combined
single limit of $1,000,000.00 covering all owned, non-owned and hired
vehicles; and
(7) Insurance against such other hazards as may be
reasonably required by Landlord from time to time and as are
customarily insured against with respect to similar leased properties.
Copies of certificates with respect to all Policies, together with evidence of
payment of the premium must be furnished to Landlord prior to the Anticipated
Commencement Date. If unavailable at such time, Policies may be evidenced by a
certificate of insurance, each Policy shall be written and endorsed so as to
name Landlord, Landlord's Mortgagee and The Advance Group, Inc. as additional
insureds, as their interests may appear. Tenant's insurance shall provide
primary coverage to Landlord when any policy issued to Landlord provides
duplicate or similar coverage, and in such circumstance Landlord's policy will
be excess over Tenant's Policy. Each Policy shall be written by insurance
companies approved to do business in the State of New Jersey having an A.M. Best
Company, Inc. rating of A or higher (although Tenant's workman's compensation
carrier may have a rating not lower than B++ and a financial size category of
VIII or higher. Such insurance coverage may be effected under overall blanket or
excess coverage policies of Tenant, except as to general liability insurance,
which may be effected under combined single limit. Each Policy shall be written
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or endorsed so as to provide for commercially reasonable deductibles, although
Tenant agrees to indemnify Landlord for claims beginning with the first dollar
whenever a deductible applies to a claim requiring Tenant's indemnification.
Each Policy shall contain a provision to the effect that such policy shall not
lapse or be terminated, canceled, altered or in any way limited in coverage or
reduced in amount unless Landlord is notified in writing at least thirty (30)
days prior to such lapse, termination, cancellation, alteration, limitation or
reduction. Tenant shall pay the premiums for such insurance as the same shall
become due and payable. Not later than thirty (30) days prior to the expiration
date of any Policy, Tenant shall deliver to Landlord evidence satisfactory to
Landlord of the renewal or replacement of such Policy.
(b) Waiver of Subrogation. Tenant and Landlord each waive any
claim it might have against the other for any injury to or death of any person
or damage to or theft, destruction, loss, or loss of use of any property in
connection with this Lease or the Premises (each, a "Loss"), to the extent the
other party is insured against such Loss under any insurance policy required
under the terms hereof (inclusive of any self-insurance and/or deductible
amounts), regardless of whether the negligence of such party caused the Loss.
Tenant and Landlord shall each cause its property insurance carriers to endorse
all such policies waiving the carrier's rights of recovery under subrogation or
otherwise against the other.
(c) Indemnity. Subject to Section 9(b), Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (and not solely caused by the willful acts or
gross negligence of Landlord or its agents), including reasonable attorneys'
fees arising from (1) Tenant's use and occupancy of the Premises, the Building
and/or the Park, or any work, activity or thing done, allowed or suffered by
Tenant in, on or about the Premises, the Building or the Park, or (2) any breach
or default by Tenant of any of Tenant's obligations under this Lease, and/or (3)
any act or omission of Tenant or any Tenant Party. This indemnity provision
shall survive termination or expiration of this Lease. If any proceeding is
filed for which indemnity is required hereunder, Tenant agrees, upon request
therefor, to defend Landlord in such proceeding at its sole cost utilizing
counsel reasonably satisfactory to Landlord.
(d) Landlord's Insurance. Landlord shall maintain throughout
the Term insurance policies in accordance with the insurance certificate
attached hereto as Exhibit R.
10. Subordination and Non-Disturbance; Attornment; Notice to Landlord's
Mortgagee.
(a) Subordination and Non-Disturbance. This Lease shall be
subordinate to any mortgage or other security instrument, or any ground lease,
master lease, or primary lease, that now or hereafter covers all or any part of
the Building, and also to all renewals, modifications, consolidations and
extensions of such underlying mortgage, security instrument, ground lease,
master lease or primary lease. Landlord agrees to use reasonable commercial
efforts to obtain a Subordination, Non-Disturbance and Attornment Agreement for
the benefit of Tenant and Landlord's Mortgagee on the customary form of
Landlord's Mortgagee. Although no instrument or act on the part of Tenant shall
be necessary to effectuate such subordination, Tenant shall, nevertheless,
execute and deliver such further instruments confirming such subordination as
may be desired by Landlord's Mortgagee or by a lessor, licensor or party to any
agreement under any such
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underlying ground lease, master lease, or primary lease. Tenant hereby appoints
Landlord its attorney-in-fact, irrevocably, to execute and deliver any such
instrument on behalf of Tenant. Any Landlord's Mortgagee may elect, at any time,
unilaterally, to make this Lease superior to its mortgage, ground lease, master
lease, or primary lease or other interest in the Premises by so notifying Tenant
in writing.
(b) Attornment. Tenant shall attorn to any party succeeding to
Landlord's interest in the Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease, or otherwise, upon
such party's request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
(c) Notice to Landlord's Mortgagee. Tenant shall not seek to
enforce any remedy it may have for any default on the part of Landlord without
first giving written notice by certified mail, return receipt requested,
specifying the default in reasonable detail, to any Landlord's Mortgagee whose
address has been given to Tenant in writing, and affording such Landlord's
Mortgagee a reasonable opportunity to perform Landlord's obligations hereunder.
(d) Landlord's Mortgagee's Protection Provisions. If
Landlord's Mortgagee shall succeed to the interest of Landlord under this Lease,
Landlord's Mortgagee shall not be: (1) liable for any act or omission of any
prior lessor (including Landlord); (2) bound by any Rent which Tenant might have
paid for more than the current month to any prior lessor (including Landlord),
and all such Rent shall remain due and owing, notwithstanding such advance
payment; (3) bound by any security or advance rental deposit made by Tenant
which is not delivered or paid over to Landlord's Mortgagee and with respect to
which Tenant shall look solely to Landlord for refund or reimbursement; (4)
bound by any termination, amendment or modification of this Lease made without
Landlord's Mortgagee's consent and written approval, except for those
terminations, amendments and modifications permitted to be made by Landlord
without Landlord's Mortgagee's consent pursuant to the terms of the loan
documents between Landlord and Landlord's Mortgagee; (5) subject to the defenses
which Tenant might have against any prior lessor (including Landlord); and (6)
subject to the offsets which Tenant might have against any prior lessor
(including Landlord) except for those offset rights which (A) are expressly
provided in this Lease, (B) relate to periods of time following the acquisition
of the Building by Landlord's Mortgagee, and (C) Tenant has provided written
notice to Landlord's Mortgagee and provided Landlord's Mortgagee a reasonable
opportunity to cure the event giving rise to such offset event. Landlord's
Mortgagee shall have no liability or responsibility under or pursuant to the
terms of this Lease or otherwise after it ceases to own an interest in the
Building. Nothing in this Lease shall be construed to require Landlord's
Mortgagee to see to the application of the proceeds of any loan, and Tenant's
agreements set forth herein shall not be impaired on account of any modification
of the documents evidencing and securing any loan.
11. Rules and Regulations. Tenant shall comply with the rules and
regulations of the Building which are attached hereto as Exhibit H; provided,
however, that to the extent any rule and/or regulation conflicts with the terms
of this Lease, the terms of this Lease shall control. Landlord may, from time to
time, reasonably amend such rules and regulations for the safety, care, or
cleanliness of the Building, the Park and related facilities, provided that such
changes are in writing, are applicable to all tenants of the Building and will
not unreasonably interfere with Tenant's use of the Premises, and Tenant
receives a copy of such rules and regulations at least ten
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(10) business days before they become effective. Tenant shall be responsible for
the compliance with such rules and regulations by Tenant and each Tenant Party.
Landlord covenants that any enforcement of the rules and regulations by Landlord
shall be in a non-discriminatory manner.
12.1 Condemnation.
(a) Total Taking. If the entire Building or the entire
Premises shall be acquired or condemned for any public or quasi-public purpose
(a "Taking"), this Lease shall terminate and the Term shall end as of the date
of the vesting of title with the same effect as if such date were the Expiration
Date, and Rent shall be prorated as of such date.
(b) Partial Taking. If only a part of the Building or the
Premises shall be subject to a Taking then, except as hereinafter provided in
this Paragraph 12, this Lease and the Term shall continue in full force and
effect, provided that from and after the date of the vesting of title, the Rent
and Tenant's Proportionate Share shall be modified to reflect the reduction of
the Premises and/or the Building as a result of such Taking.
(c) Landlord's Termination Right. Whether or not the Premises
are affected, Landlord may give to Tenant, within sixty (60) days following the
date upon which Landlord receives notice that all or a portion of the Building
or the Premises has been acquired or condemned, a notice of termination of this
Lease as of a date set forth therein, which date shall not be earlier than the
thirtieth (30th) day following delivery of such notice of termination.
(d) Tenant's Termination Right. If part of the Premises is
acquired or condemned and such taking will result in undue hardship or material
interference, in Tenant's judgment reasonably exercised, in the conduct of
Tenant's business operations in the Premises, or if, by reason of the Taking,
Tenant no longer has reasonable means of access to the Premises and Landlord
fails to provide an alternate means of access within thirty (30) days from such
Taking, Tenant may terminate this Lease by notice to Landlord given not less
than thirty-one (31) nor more than sixty (60) days following the date of such
Taking. If Tenant so notifies Landlord, this Lease shall terminate and the Term
shall end and expire upon the thirtieth (30th) day following the giving of such
notice. If a part of the Premises shall be so acquired or condemned and this
Lease and the Term shall not be terminated in accordance with this Section 12.1,
Landlord, at Landlord's expense, subject to receipt of sufficient proceeds from
the Mortgagee and/or the condemning authority, shall restore that part of the
Premises not so acquired or condemned to a self-contained rental unit; provided,
however, that Landlord shall have no obligation to repair, restore or replace
trade fixtures, furniture, or other Tenant property or to repair, replace or
restore alterations or improvements in the Premises which exceed the existing
building standard as of the Commencement Date, or to repair, replace or restore
alterations or improvements in the Premises to the extent the cost of same
exceeds the cost to repair, replace or restore the leasehold improvements
existing on the Commencement Date.
(e) Apportionment of Rent. Upon any termination of this Lease
pursuant to the provisions of this Paragraph 12, Rent shall be apportioned as
of, and shall be paid or refunded up to and including, the date of such
termination.
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12.2. Awards. Upon any Taking of all or any part of the Building,
Landlord shall receive the entire award for any such Taking, and Tenant shall
have no claim against Landlord or the condemning authority for the value of any
unexpired portion of the Term, or any leasehold improvements; and Tenant hereby
assigns to Landlord all of its rights in and to such award. Nothing contained in
this Paragraph 12.2 shall be deemed to prevent Tenant from making a separate
claim in any condemnation proceedings for the then value of any Tenant's
property included in such Taking for any moving expenses, provided any such
award is in addition to, and does not result in a reduction of, the award made
to Landlord.
12.3. Temporary Taking. If the whole or any part of the Premises is
acquired or condemned temporarily during the Term for any public or quasi-public
use or purpose, Tenant shall give prompt notice to Landlord and the Term shall
not be reduced or affected in any way and Tenant shall continue to pay Rent
without reduction or abatement and to perform its other obligations under this
Lease except to the extent prevented from doing so by the condemning authority,
and Tenant shall be entitled to receive any award or payment for such use, which
shall be received and held in trust for the benefit of Landlord and applied by
Tenant as a trust fund for payment of the Rent falling due.
13. Fire or Other Casualty.
13.1 Restoration. If all or any portion of the Premises is
damaged by fire or other insured casualty, or if the Building is damaged such
that Tenant is deprived of reasonable access to the Premises, Tenant shall give
prompt notice to Landlord, and the damage shall be repaired by Landlord, at its
expense, subject to receipt of sufficient insurance proceeds from the Landlord's
Mortgagee and/or the insurer, to substantially the condition of the Premises on
the date of such casualty, but Landlord shall have no obligation to repair,
replace or restore (i) trade fixtures, furniture or other Tenant's property, or
(ii) any alterations or improvements, including leasehold improvements, to the
Premises which exceed the existing building standard as of the date of such
casualty. Until such time as the restoration of the Premises is substantially
completed, or would have been substantially completed but for a delay caused by
Tenant, Rent shall be reduced in the proportion by which the rentable square
footage of the part of the Premises which is not useable (or accessible) and is
not used by Tenant bears to the total rentable square footage of the Premises.
13.2. Landlord's Termination Right. Notwithstanding anything
to the contrary contained in Section 13.1, if the Premises are totally damaged
and are thereby rendered untenantable, or if the Building shall be so damaged
that in Landlord's opinion, either Tenant is deprived of reasonable access to
the Premises or substantial alteration, demolition or reconstruction of the
Building shall be required (whether or not the Premises shall have been damaged
or rendered untenantable), then in either of such events, Landlord may, not
later than sixty (60) days following the date of damage, give Tenant a written
notice terminating this Lease. If this Lease is so terminated (i) the Term shall
expire and the Tenant shall vacate the Premises and surrender the same to
Landlord no later than the date set forth in the Notice, which date shall be not
less than sixty (60) days after such notice is given, (ii) Tenant's liability
for Rent shall cease as of the date of the damage, (iii) any prepaid Rent for
any period after the date of the damage shall be promptly refunded by Landlord
to Tenant, and (iv) Landlord shall collect and retain the insurance proceeds of
policies obtained by Landlord providing coverage for damage to all or any part
of the Real Property.
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13.3. Tenant's Termination Right. If the Premises are totally
damaged and are thereby rendered untenantable, or if the Building shall be so
damaged that Tenant is deprived of reasonable access to the Premises, and if
Landlord elects to restore the Premises, or if the Premises are partially
damaged and rendered partially untenantable so that undue hardship or material
interference, in Tenant's judgment reasonably exercised, is caused in the
conduct of Tenant's business operations in the Premises, Landlord shall, within
sixty (60) days following the date of the damage, cause a contractor or
architect selected by Landlord to give notice ("Restoration Notice") to Tenant
of the date by which such contractor or architect estimates the restoration of
the Premises shall be substantially completed. If the Restoration Notice
estimates that the restoration shall not be substantially completed on or before
a date ("Landlord's Restoration Date") which shall be two hundred and ten (210)
days following the date of such damage, subject to extension by reason of force
majeure, then Tenant shall have the right to terminate this Lease by giving
written notice ("Termination Notice") to Landlord not later than twenty (20)
days following Tenant's receipt of the Restoration Notice. If Tenant delivers to
Landlord a Termination Notice, this Lease shall be deemed to have terminated as
of the date therefor set forth in the Termination Notice, which date shall not
be later than the sixtieth (60th) day following delivery of the Termination
Notice, as if such date was the Expiration Date, and Rent shall be apportioned
and shall be paid or refunded, as the case may be, up to and including the date
of such termination. If Tenant shall not have given the Termination Notice
pursuant to this Section 13.3, and Landlord shall fail to substantially complete
the restoration of the Premises in accordance with the provisions hereof (or the
Building to the extent necessary to provide Tenant with access to the Premises)
on or before Landlord's Restoration Date, subject to extension by reason of
force majeure, then Tenant shall have the right to terminate this Lease by
delivery to Landlord of a Termination Notice not later than twenty (20) days
following Landlord's Restoration Date (as such date may be extended by reason of
force majeure).
13.4. Inability to Collect. Notwithstanding any of the
foregoing provisions of this Paragraph 13, if Landlord or Landlord's Mortgagee
shall be unable to collect all of the rent insurance proceeds equal to the
reduction in Rent resulting from damage or destruction of the Premises or the
Building solely by reason of any action or inaction on the part of Tenant or any
of its employees, agents or contractors, then, without prejudice to any other
remedies which may be available against Tenant, there shall be no abatement of
Rent and, if an Event of Default of a monetary nature has occurred, Landlord
shall have no obligation to restore the Premises.
14. Environmental Compliance.
(a) (1) Unless otherwise specified herein, the following terms
used in this Section 14 shall have the following meanings:
"DEP": New Jersey Department of Environmental
Protection and any successor agency.
"Environmental Laws": All present and future federal,
state or local laws, codes, ordinances, rules, regulations and other
requirements as the same, from time to time, may be amended, which
relate to the human health or safety concerns or to the environment,
including those applicable to the storage, treatment, disposal,
handling and release of any Hazardous Substances or Wastes.
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"Environmental Claim": Any complaint, order,
directive, claim, action, investigation, lawsuit, demand, citation,
notice, proceeding or lien, or threatened complaint, order, directive,
claim, action, investigation, lawsuit, demand, citation, notice,
proceeding or lien, by a federal, state or local governmental entity
involving Environmental Laws which arise from Tenant's actions or
omissions at the Premises and/or the business conducted by Tenant
therein.
"Environmental Condition": Any emission, spill,
discharge, contamination or threatened contamination of any kind or
nature whatsoever at, on or from the Premises or affecting systems
servicing the Premises which arises from Tenant's actions or omissions
at the Premises and which may violate any Environmental Law, including,
without limitation, the presence of Hazardous Substances or Wastes.
"Hazardous Substances or Wastes": Any toxic
substance, hazardous substance, contaminant, waste, pollutant or other
similar product or substance that may pose a threat to the environment
or human health safety, as defined in Environmental Laws.
(2) At all times during the Term, Tenant, at its sole
expense, shall fulfill, observe and comply with, and keep the Premises
in compliance with any and all Environmental Laws. Tenant agrees not to
generate, store, manufacture, refine, transport, treat, dispose or
otherwise permit to be present on or about the Premises any Hazardous
Substances, except in de minimus quantities for ordinary cleaning or
office purposes.
(3) If Tenant receives any notice of the occurrence
or existence of an Environmental Condition and/or Environmental Claim,
then Tenant shall give immediate notice of same to Landlord.
(4) If Tenant fails to comply with the requirements
of this Section 14, including without limitation the requirements of
Section 14(a)(3), Landlord shall, after first giving Tenant at least
twenty (20) days prior written notice, have the option, but shall not
be obligated, to exercise any of its rights as provided in this Lease
and Landlord or its representatives may enter onto the Premises and
take any actions Landlord deems reasonably necessary or advisable to
investigate, clean up, remove, resolve or minimize the impact of, or
otherwise address, an Environmental Condition, and/or Environmental
Claim upon Landlord's receipt of notice from any person, entity or
other source of same. All reasonable costs and expenses incurred by
Landlord in the exercise of any such rights shall be paid by Tenant as
Additional Rent.
(5) Without limitation upon any other event which may
constitute a default on the part of Tenant under this Lease, the
occurrence of any of the following events shall constitute a default on
the part of Tenant under this Lease, entitling Landlord to all of the
rights and remedies provided therefor:
(A) If Tenant fails or refuses to provide
Landlord with prompt notice of an Environmental Condition
and/or Environmental Claim of which Tenant is or should be
aware.
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(B) If any person or entity asserts or
creates a lien upon the Building, Park and/or the Premises or
any portion thereof by reason of the occurrence of an
Environmental Condition and/or Environmental Claim resulting
solely or partly as a result of the act or omission of Tenant;
provided, however, the occurrence of an Environmental Claim shall not
constitute an Event of Default if, within five (5) days of the
occurrence giving rise to the Environmental Claim: (1) Tenant has
commenced and is diligently pursuing either: (a) a cure or correction
of the event which constitutes the basis for the Environmental Claim
and continues diligently to pursue such cure or correction to
completion; or (b) legal proceedings preventing such governmental
entity or entities from asserting such Environmental Claim; and (2)
Tenant has posted a bond, letter of credit, or other security
reasonably satisfactory in form, substance and amount to Landlord to
secure the proper and complete cure or correction of the event which
constitutes the basis for the Environmental Claim.
(6) Upon reasonable prior notice, Tenant shall permit
any representatives of Landlord (including agents, servants, employees,
legal counsel, environmental consultants and engineers) access during
normal business hours, or during other hours either by agreement of the
parties or in the event of any emergency related to Environmental Laws,
to: (A) permit any of such parties to examine, audit, copy or make
extracts from, any and all books, records and documents in possession
of Tenant, its agents, representatives, environmental consultants, or
independent contractors relating to Tenant's compliance with
Environmental Laws; (B) inspect the Premises, and/or (C) perform any
work at the Premises to assure that the Premises are in compliance with
all Environmental Laws and to take reasonable precautions, to the
extent practicable, not to interfere with Tenant's operations at the
Premises.
(7) In the event that either the SIC number or the
operations and processes undertaken by Tenant or any occupant of the
Premises are to change, Tenant shall provide not less than ten (10)
days notice to Landlord prior to implementing such change.
(8) At no expense to the Landlord, Tenant promptly
shall provide all information requested by Landlord or any federal,
state or local governmental entity regarding any Environmental Laws and
promptly shall sign such affidavits and submissions when requested to
do so by Landlord or any federal, state or local governmental entity.
In the event an affidavit or submission is inaccurate or incomplete,
Tenant shall cooperate and provide such information so that it can be
made accurate and complete, at which time Tenant promptly shall sign
same.
(9) As a condition precedent to any Transfer by
Tenant, Tenant, at Tenant's own expense, shall comply with Section
14(b) hereof and fulfill all of Tenant's obligations under Section
14(a) hereof, in addition to complying with all other requirements of
this Lease.
(b) (1) Without limitation upon any of Tenant's obligations
pursuant to Section 14(a), Tenant, at its sole cost and expense, shall
comply with the Industrial Site Recovery Act, N.J.S.A. 13:K-6 et seq.
("ISRA") as applicable to Tenant, the Premises and/or
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the business conducted therein, including but not limited to, making
all submissions and providing all information to the DEP and otherwise
complying with all requirements of ISRA.
(2) Should Tenant's operations at the Premises not be
subject to ISRA, Tenant, at is sole cost and expense, shall obtain a
letter of non-applicability or de minimus quantity exemption from the
DEP within thirty (30) days of the expiration or earlier termination of
the Term and promptly shall provide Tenant's submission and the DEP's
response thereto.
(3) Tenant represents and warrants to Landlord that
Tenant intends to use the Premises for the Permitted Use, and that
Tenant's use of the Premises shall be restricted to the SIC number set
forth in the Lease Summary unless Tenant obtains Landlord's prior
written consent to any change, which consent may be unreasonably
withheld in Landlord's sole discretion.
(c) Tenant agrees that each and every provision of this
Section 14 shall survive the expiration or earlier termination of the Term of
this Lease, regardless of the reason for such termination, it being agreed and
acknowledged that Landlord would not have entered into this Lease but for the
provisions of this Section 14 and the survival thereof. Tenant's failure to
abide by the terms of this Section 14 shall be restrainable by injunction.
15. Personal Property Taxes. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture, or fixtures placed by
Tenant in the Premises. If any taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and Landlord elects to pay the
same, or if the assessed value of Landlord's property is increased by inclusion
of such personal property, furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to Landlord as Additional
Rent, upon demand, the part of such taxes for which Tenant is primarily liable
hereunder; provided, however, Landlord shall not pay such amount if Tenant
promptly notifies Landlord in writing that it will contest the validity or
amount of such taxes before Landlord makes such payment, and (i) thereafter
diligently proceeds with such contest in accordance with law, (ii) the
non-payment thereof does not pose a threat of loss or seizure of the Building or
interest of Landlord therein or impose any fee or penalty against Landlord, and
(iii) Tenant deposits cash security with Landlord in an amount reasonably
determined by Landlord.
16. Default.
(a) Each of the following occurrences shall be an "Event of
Default":
(1) Tenant's failure to pay Rent on the date that the
same is due;
(2) Tenant (A) abandons or vacates the Premises or
any substantial portion thereof for more than thirty (30) days or (B)
fails to continuously operate its business in the Premises;
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(3) Tenant fails to comply with the Permitted Use set
forth herein and the continuance of such failure for a period of five
(5) days after Landlord has delivered to Tenant written notice thereof;
(4) Tenant fails to provide any estoppel certificate
within the time period required under Section 23(e) hereof and such
failure shall continue for five (5) days after written notice thereof
from Landlord to Tenant;
(5) Tenant's failure to perform, comply with, or
observe any other agreement or obligation of Tenant under this Lease
and the continuance of such failure for a period of more than thirty
(30)) days after Landlord has delivered to Tenant written notice
thereof, or, if such default cannot reasonably be cured within thirty
(30) days, Tenant's failure to commence cure within that thirty (30)
day period and diligently prosecute to completion;
(6) A Transfer in violation of the provisions of this
Lease;
(7) Tenant's failure to maintain insurance in
accordance with the provisions of this Lease; and
(8) The filing of a petition by or against Tenant or
Guarantor (A) in any bankruptcy or other insolvency proceeding; (B)
seeking any relief under any state or federal debtor relief law; (C)
for the appointment of a liquidator or receiver for all or
substantially all of Tenant's property or for Tenant's interest in this
Lease; or (D) for the reorganization or modification of Tenant's
capital structure; provided, however, if such a petition is filed
against Tenant, then such filing shall not be an Event of Default
unless Tenant fails to have the proceedings initiated by such petition
dismissed within sixty (60) days after the filing thereof.
(b) Upon any Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder or by law or equity,
take any of the following actions:
(1) Terminate this Lease by giving Tenant written
notice thereof, in which event Tenant shall pay to Landlord the sum of
(A) all Rent accrued hereunder through the date of termination, (B) all
amounts due from time to time under Section 17(a), and (C) an amount
equal to (x) the total Rent that Tenant would have been required to pay
for the remainder of the Term discounted to present value at a per
annum rate equal to the Prime Rate as published on the date this Lease
is terminated minus (y) the then net present fair rental value of the
Premises after deducting all costs which will reasonably be incurred by
Landlord in reletting the Premises including, without limitation,
tenant improvement costs, brokerage commissions, loss of rents during
vacancies, rent concessions and reasonable attorneys' and architects'
fees for such period, similarly discounted;
(2) Terminate Tenant's right to possess the Premises
without terminating this Lease by giving written notice thereof to
Tenant, in which event Tenant shall pay to Landlord (A) all Rent and
other amounts accrued hereunder to the date of termination of
possession, (B) all amounts due from time to time under Section 17(a)
hereof, and (C) all Rent and other net sums required hereunder to be
paid by Tenant during the remainder of the
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Term, diminished by any net sums thereafter received by Landlord
through reletting the Premises during such period, after deducting all
costs reasonably incurred by Landlord in reletting the Premises,
including tenant improvement costs, brokerage commissions, loss of
rents during vacancy, rent concessions and attorneys', architects' and
engineers' fees. Landlord shall use good faith efforts to relet the
Premises on such terms as Landlord in its sole discretion may determine
(including a term different from the Term, rental concessions, and
alterations to, and improvement of, the Premises); provided, however,
Landlord shall not be obligated to relet the Premises before leasing
other portions of the Building or the other buildings in the Park.
Landlord shall not be liable for, nor shall Tenant's obligations
hereunder be diminished because of, Landlord's failure to relet the
Premises or to collect rent due for such reletting. Tenant shall not be
entitled to the excess of any consideration obtained by reletting over
the Rent due hereunder. Reentry by Landlord in the Premises shall not
affect Tenant's obligations hereunder for the unexpired Term; rather,
Landlord may, from time to time, bring an action against Tenant to
collect amounts due by Tenant, without the necessity of Landlord's
waiting until the expiration of the Term;
(3) Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this Lease, all
actions taken by Landlord to dispossess or exclude Tenant from the
Premises shall be deemed to be taken under Section 16(b)(2). If
Landlord elects to proceed under Section 16(b)(2) hereof, it may at any
time thereafter elect to terminate this Lease under Section 16(b)(1);
(4) Tenant hereby waives all right of redemption to
which Tenant or any person under Tenant might be entitled by any law
now or hereinafter in force.
17. Payment by Tenant; Non-Waiver.
(a) Payment by Tenant. Upon any Event of Default, Tenant shall
pay to Landlord all reasonable costs incurred by Landlord (including court costs
and reasonable attorneys' fees and expenses) in (1) obtaining possession of the
Premises, (2) removing and storing Tenant's or any other occupant's property,
(3) repairing, restoring, altering, remodeling, or otherwise putting the
Premises into condition acceptable to a new tenant prorated over the remaining
portion of the Term, (4) if Tenant is dispossessed of the Premises and this
Lease is not terminated, reletting all or any part of the Premises (including
brokerage commissions, cost of tenant finish work, and other costs incidental to
such reletting), prorated over the remaining portion of the Term, (5) performing
Tenant's obligations which Tenant failed to perform, and (6) enforcing, or
advising Landlord of, its rights, remedies, and recourses arising out of the
Event of Default, in addition to the unamortized portion of the Construction
Allowance and any brokerage commissions paid by Landlord in connection with this
Lease. To the full extent permitted by Law, Landlord and Tenant agree the
federal and state courts of the State of New Jersey shall have exclusive
jurisdiction over any matter relating to or arising from this Lease and the
parties' rights and obligations under this Lease.
(b) No Waiver. Landlord's acceptance of Rent following an
Event of Default shall not waive Landlord's rights regarding such Event of
Default. No waiver by Landlord of any violation or breach of any of the terms
contained herein shall waive Landlord's rights regarding any future violation of
such term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any
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endorsement or other statement on any instrument delivered in payment of Rent or
any writing delivered in connection therewith; accordingly, Landlord's
acceptance of a partial payment of Rent shall not constitute an accord and
satisfaction of the full amount of the Rent that is due.
18. Surrender of Premises. No act or omission by Landlord shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
a surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, free of Hazardous Substances placed on the Premises during the
Term or during Tenant's occupancy of the Premises, if longer, broom-clean,
reasonable wear and tear (and condemnation and Casualty damage not caused by
Tenant, as to which Sections 12 and 13 shall control) excepted, and shall
deliver to Landlord all keys to the Premises. Provided that Tenant has performed
all of its obligations hereunder, Tenant may, prior to the end of the Term,
remove all unattached trade fixtures, furniture, and personal property placed in
the Premises or elsewhere in the Building by Tenant (but Tenant may not remove
any such item which was paid for, in whole or in part, by Landlord or any wiring
or cabling unless Landlord permits such removal). Additionally, at Landlord's
option, Tenant shall, prior to the end of the Term, remove such alterations,
additions, improvements, trade fixtures, personal property, equipment, wiring,
cabling, and furniture as Landlord may request; however, Tenant shall not be
required to remove any addition or improvements to the Premises unless Landlord
has notified Tenant of Landlord's request to remove same at the time Landlord
approves the plans for addition or improvements. Tenant shall repair all damage
caused by any removal prior to the expiration or sooner termination of this
Lease. All items not so removed shall, at Landlord's option, be deemed to have
been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or
otherwise disposed of by Landlord without notice to Tenant and without any
obligation to account for such items; any such disposition shall not be
considered a strict foreclosure. The provisions of this Section 18 shall survive
the end of the Term.
19. Holding Over. If Tenant fails to vacate the Premises at the
expiration or earlier termination of the Term, then Tenant shall be a tenant
from month to month and, in addition to all other damages and remedies to which
Landlord may be entitled for such holding over, Tenant shall pay, in addition to
the other Additional Rent, Basic Rent equal to one hundred fifty percent (150%)
of the Basic Rent in effect as of the Lease Month immediately preceding such
expiration or earlier termination, which shall be payable in advance on the
first day of each month. The provisions of this Section 19 shall not be deemed
to limit or constitute a waiver of any other rights or remedies of Landlord
provided herein or at law. If Tenant fails to surrender the Premises upon the
termination or expiration of this Lease, in addition to any other liabilities to
Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold
Landlord harmless from all loss, costs (including reasonable attorneys' fees)
and liability resulting from such failure, including any claims made by any
succeeding tenant founded upon such failure to surrender, and any lost profits
to Landlord resulting therefrom.
20. Certain Rights Reserved by Landlord. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's use, occupancy and
quiet enjoyment of the Premises, Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise, in and
about the Building, or any part thereof; to
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enter upon the Premises (after giving Tenant reasonable advance notice thereof,
which may be oral notice, except in cases of real or apparent emergency, in
which case no notice shall be required) and, during the continuance of any such
work, to temporarily close doors, entryways, public space, and corridors in the
Building; to interrupt or temporarily suspend Building services and facilities;
to change the name of the Building; and to change the arrangement and location
of entrances or passageways, doors, and doorways, corridors, elevators, stairs,
restrooms, or other public parts of the Building;
(b) To take such reasonable measures as Landlord deems
advisable for the security of the Building and its occupants; evacuating the
Building for cause, suspected cause, or for drill purposes; temporarily denying
access to the Building; and closing the Building after Business Hours and on
weekends and holidays, subject, however, to Tenant's right to enter when the
Building is closed after Business Hours under such reasonable regulations as
Landlord may prescribe from time to time; and
(c) To enter the Premises at reasonable hours to show the
Premises to prospective purchasers, lenders, or, during the last twelve (12)
months of the Term, tenants.
21. Intentionally Omitted.
22. Parking. Tenant shall have the non-exclusive right to use, without
charge, the Tenant Parking Spaces in the parking area associated with the
Building which is more particularly described on Exhibit A attached hereto (the
"Parking Area") during the Term subject to such terms, conditions and
regulations as are from time to time applicable to patrons of the Parking Area.
Landlord shall have no liability on account of any damage or loss to any vehicle
or its contents located in the Parking Area, regardless of cause, except for
Landlord's willful misconduct or gross negligence, and Tenant hereby agrees to
indemnify, hold harmless and defend Landlord from and against any and all
causes, claims, suits, damages, and expenses (including reasonable attorneys'
fees) arising from the use of the Parking Area by Tenant or any Tenant Party. In
the event Landlord provides designated parking spaces to another tenant at the
Building, Landlord agrees to provide Tenant with some (but not pro-rated)
designated parking spaces but Landlord shall not be required to enforce any
exclusivity thereof.
23. Security Deposit
(a) Contemporaneously with the execution of this Lease, Tenant
shall pay to Landlord the Security Deposit, which shall be held by Landlord to
secure Tenant's performance of its obligations under this Lease. The Security
Deposit is not an advance payment of Rent or a measure or limit of Landlord's
damages upon an Event of Default. Landlord may, from time to time following an
Event of Default and without prejudice to any other remedy, use all or a part of
the Security Deposit to perform any obligation Tenant fails to perform
hereunder. Following any such application of the Security Deposit, Tenant shall
pay to Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. Provided that Tenant has performed all of its
obligations hereunder, Landlord shall, within thirty (30) days after the Term
ends, return to Tenant the portion of the Security Deposit which was not applied
to satisfy Tenant's obligations. The Security Deposit may be commingled with
other funds, and no interest shall be paid thereon. If Landlord transfers its
interest in the Premises and the transferee assumes Landlord's obligations
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under this Lease, then Landlord may assign the Security Deposit to the
transferee and Landlord thereafter shall have no further liability for the
return of the Security Deposit.
(b) Tenant shall have the right to deliver to Landlord an
unconditional, irrevocable commercial letter of credit ("Letter of Credit") in
substitution for the cash Security Deposit. The Letter of Credit shall be (a) in
form and substance satisfactory to Landlord; (b) in the amount set forth in the
Lease Summary; (c) issued by First Union National Bank (or its successor that
meets the criteria set forth in this Subsection 23(b)) in a New York, New York
metropolitan area or northern New Jersey federally insured branch (i) organized
under the laws of the United States of America or any state thereof; (ii) doing
business in the United States of America; (iii) subject to state or federal
banking regulatory authorities; (iv) having a combined capital, surplus and
undivided profits (less any undivided losses) of not less than five hundred
million dollars ($500,000,000.00); and (v) having a commercial paper rating of
A-1 (or the equivalent) from Standard & Poor's Corporation or P-1 (or the
equivalent) from Moody's Investors Service, Inc. and otherwise reasonably
acceptable to Landlord (collectively "Bank Criteria"); (d) payable in full or
partial draws upon presentation of the Letter of Credit to the issuer together
with a letter on Landlord's letterhead stating that Landlord is entitled to the
Letter of Credit proceeds; (e) made expressly transferable and assignable to the
Landlord from time to time of the Building, the holder or trustee, as
applicable, under any mortgage, and any receiver of such Landlord (it being
agreed that the Letter of Credit shall be delivered only to any of such persons
or entities); and include an "evergreen" provision which provides that the
Letter of Credit shall be automatically renewed on an annual basis unless the
issuer delivers thirty (30) days prior written notice of cancellation to
Landlord, such that the Letter of Credit remains in effect through the sixtieth
(60th) day after the expiration of the Lease Term and Renewal Term, if
applicable. Landlord shall be permitted to draw upon the Letter of Credit and
apply all or a portion of the proceeds thereof necessary to compensate Landlord
for any matter to which the Security Deposit is permitted to be applied
hereunder, and to retain the remaining proceeds thereof for the remainder of the
Lease Term and Renewal Term, as applicable, as a cash Security Deposit. Within
three (3) days after written notice of Landlord's use of all or a portion of the
proceeds of the Letter of Credit, Tenant shall deposit with Landlord cash in an
amount sufficient to replace the funds so used by Landlord and the entire
Security Deposit shall thereafter be held by Landlord in cash. Landlord also
shall have the right to draw upon the Letter of Credit in any of the following
circumstances, without any further notice of any kind except as expressly
specified in this Subsection 23(b): (i) if Tenant fails to deliver to Landlord a
replacement Letter of Credit complying with the terms of this subsection (from a
financial institution other than the issuer, or successor thereto, of the
then-current Letter of Credit) within ten (10) days after demand by Landlord
after the financial condition of the issuing bank (or the successor thereto) is
reduced below a rating of the Bank Criteria or (ii) if Tenant fails to provide
Landlord with any renewal or replacement Letter of Credit complying with the
terms of this Subsection 23(b) at least twenty-five (25) days prior to the
expiration of the then-current Letter of Credit. Landlord shall not be required
to pay any interest on any proceeds drawn under the Letter of Credit or to
maintain any such proceeds in a separate account. Within sixty (60) days after
the later of (i) the expiration of the Term or Renewal Term, as applicable, of
this Lease or (ii) Tenant's vacating the Leased Premises (and not then being in
default hereunder), Landlord shall return the Letter of Credit and all proceeds
thereof being held by Landlord (less such portions thereof as Landlord may have
used to satisfy Tenant's obligations or liabilities to Landlord and less such
other sums as Landlord reasonably expects to be due from Tenant). Tenant
expressly waives any right it might otherwise have to prevent Landlord from
drawing on the Letter of Credit and agrees that an action for damages and not
injunctive or other
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equitable relief shall be Tenant's sole remedy in the event Tenant disputes
Landlord's claim to any such amounts. Neither the cash Security Deposit nor any
drawing under the Letter of Credit shall be deemed to be liquidated damages in
the event of a breach by Tenant of this Lease.
24. Miscellaneous.
(a) Landlord Transfer. Landlord may sell its interest in the
Building and/or transfer or assign any of its rights under this Lease. If
Landlord sells its interest in the Building or assigns its rights under this
Lease, then Landlord shall thereby be released from any further obligations
hereunder arising after the date of the sale or transfer, provided, solely with
respect to an assignment of this Lease, that the assignee assumes Landlord's
obligations hereunder in writing.
(b) Landlord's Liability. The liability of Landlord to Tenant
for any default by Landlord under the terms of this Lease shall be limited to
Tenant's actual direct, but not consequential, damages therefor and shall be
recoverable only from the interest of Landlord in the Building, and Landlord
shall not be personally liable for any deficiency.
(c) Force Majeure. Other than for Tenant's obligations under
this Lease that can be performed by the payment of money (e.g., payment of Rent
and maintenance of insurance), whenever a period of time is herein prescribed
for action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or restrictions, or any
other causes of any kind whatsoever which are beyond the control of such party.
(d) Brokerage. Neither Landlord nor Tenant has dealt with any
broker or agent in connection with the negotiation or execution of this Lease,
other than the Broker, whose commission shall be paid by Landlord, pursuant to a
separate written agreement. Tenant and Landlord shall each indemnify the other
against all costs, expenses, attorneys' fees, and other liability for
commissions or other compensation claimed by any other broker or agent claiming
the same by, through, or under the indemnifying party.
(e) Estoppel Certificates. From time to time, Tenant shall
furnish to any party designated by Landlord, within ten (10) days after Landlord
has made a request therefor, a certificate signed by Tenant confirming and
containing such factual certifications and representations as to this Lease as
Landlord may reasonably request. Unless otherwise required by Landlord's
Mortgagee or a prospective purchaser or mortgagee of the Building, the initial
form of estoppel certificate to be signed by Tenant shall be substantially
similar to the form attached hereto as Exhibit I.
(f) Notices. All notices and other communications given
pursuant to this Lease shall be in writing and shall be (1) mailed by first
class, United States Mail, postage prepaid, certified, with return receipt
requested, (2) hand delivered with confirmatory receipt, (3) sent by a
nationally recognized overnight courier service, or (4) sent by facsimile
transmission during normal business hours followed by a confirmatory letter sent
in another manner permitted hereunder, and addressed to the parties hereto at
the addresses specified in the Lease Summary. All notices shall be effective
upon delivery to the address of the addressee; provided, however, that the date
of any refusal by a party to accept delivery of a notice shall be deemed to be
the effective date of such
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notice. The parties hereto may change their addresses by giving notice thereof
to the other in conformity with this provision.
(g) Separability. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future Laws, then the
remainder of this Lease shall not be affected thereby and in lieu of such clause
or provision, there shall be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable.
(h) Amendments and Binding Effect. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant. No
provision of this Lease shall be deemed to have been waived by either party
unless such waiver is in writing signed by such party, and no custom or practice
which may evolve between the parties in the administration of the terms hereof
shall waive or diminish the right of either party to insist upon the performance
by the other party in strict accordance with the terms hereof. The terms and
conditions contained in this Lease shall inure to the benefit of and be binding
upon the parties hereto, and upon their respective successors in interest and
legal representatives, except as otherwise herein expressly provided. This Lease
is for the sole benefit of Landlord and Tenant and their permitted successor and
assigns and, other than Landlord's Mortgagee, no third party shall be deemed a
third party beneficiary hereof.
(i) Quiet Enjoyment. Provided Tenant has performed all of its
material obligations hereunder, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term, without material hindrance from Landlord or any
party claiming by, through, or under Landlord, but not otherwise, subject to the
terms and conditions of this Lease.
(j) No Merger. There shall be no merger of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof if
the same person acquires or holds, directly or indirectly, this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(k) No Offer. The submission of this Lease to Tenant shall not
be construed as an offer, and neither party shall have any rights under this
Lease unless and until it is executed and delivered to both parties.
(l) Entire Agreement. This Lease constitutes the entire
agreement between Landlord and Tenant regarding the subject matter hereof and
supersedes all oral statements and prior writings relating thereto. Except for
those set forth in this Lease, no representations, warranties, or agreements
have been made by Landlord or Tenant to the other with respect to this Lease or
the obligations of Landlord or Tenant in connection therewith. The normal rule
of construction that any ambiguities be resolved against the drafting party
shall not apply to the interpretation of this Lease or any exhibits or
amendments hereto.
(m) Waiver of Jury Trial. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, LANDLORD AND TENANT EACH WAIVE RIGHT TO TRIAL BY JURY IN ANY
LITIGATION ARISING OUT OF OR WITH RESPECT TO THIS LEASE.
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(n) Governing Law. This Lease shall be governed by and
construed in accordance with the laws of the State of New Jersey.
(o) Joint and Several Liability. If Tenant is comprised of
more than one party, each such party shall be jointly and severally liable for
Tenant's obligations under this Lease.
(p) Financial Reports. Within fifteen (15) days after
Landlord's request, Tenant will furnish Tenant's most recent financial
statements, audited, if available (including any notes to them) to Landlord, or,
if no such audited statements have been prepared, such other financial
statements (and notes to them) prepared by an independent certified public
accountant or, if unavailable, Tenant's internally prepared financial statements
certified as true and complete by Tenant's chief financial officer. If Tenant is
a publicly traded corporation, Tenant may satisfy its obligations hereunder by
providing to Landlord Tenant's most recent annual and quarterly reports. Tenant
will discuss its financial statements with Landlord and will give Landlord
access to Tenant's books and records in order to enable Landlord to verify the
financial statements. Landlord will not disclose any aspect of Tenant's
financial statements that Tenant designates to Landlord as confidential except
(1) to Landlord's Mortgagee or prospective purchasers of the Building, (2) in
litigation between Landlord and Tenant, or (3) if required by court order.
Tenant shall not be required to deliver the financial statements required under
this Section more than once in any twelve (12) month period unless requested by
Landlord's Mortgagee or a prospective buyer or lender of the Building, or an
Event of Default occurs.
(q) Landlord's Fees. Whenever Tenant requests Landlord to take
any action not required of it hereunder or give any consent required or
permitted under this Lease, Tenant will reimburse Landlord for Landlord's
reasonable, out-of-pocket costs payable to third parties and incurred by
Landlord in reviewing the proposed action or consent, including reasonable
attorneys', engineers' or architects' fees, within ten (10) days after
Landlord's delivery to Tenant of a statement of such costs. Tenant will be
obligated to make such reimbursement without regard to whether Landlord consents
to any such proposed action. Notwithstanding the foregoing, fees related to a
proposed Transfer are governed by Section 8.
(r) Telecommunications. Tenant and its telecommunications
companies, including local exchange telecommunications companies and alternative
access vendor services companies shall have no right of access to and within the
Building and/or the Land, for the installation and operation of
telecommunications systems including voice, video, data, and any other
telecommunications services provided over wire, fiber optic, microwave,
wireless, and any other transmission systems, for part or all of Tenant's
telecommunications within the Building and from the Building and/or the Land to
any other location without Landlord's prior written consent, which consent shall
not be unreasonably withheld, conditioned or delayed.
(s) Confidentiality. Tenant acknowledges that the terms and
conditions of this Lease are to remain confidential for Landlord's benefit, and
may not be disclosed by Tenant to anyone, by any manner or means, directly or
indirectly, without Landlord's prior written consent. The consent by Landlord to
any disclosures shall not be deemed to be a waiver on the part of Landlord of
any prohibition against any future disclosure.
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(t) Exhibits. All exhibits and attachments attached hereto are
incorporated herein by this reference.
(u) Definitions. (1) "Including", means including, without
limitation; (2) "Lease Month" shall mean each calendar month during the Term
(and if the Commencement Date does not occur on the first day of a calendar
month, the period from the Commencement Date to the first day of the next
calendar month shall be included in the first Lease Month for purposes of
determining the duration of the Term, and the monthly Basic Rent rate applicable
for such partial month shall be apportioned as provided in Section 4(a) of the
Lease); (3) "Tangible Net Worth" shall mean the excess of total assets over
total liabilities, in each case as determined in accordance with generally
accepted accounting principles consistently applied ("GAAP"), excluding,
however, from the determination of total assets all assets which would be
classified as intangible assets under GAAP including goodwill, licenses,
patents, trademarks, trade names, copyrights, and franchises; and (4) "Prime
Rate" shall mean the prime rate as published by The Wall Street Journal,
Northeast Edition, in its listing of "Money Rates".
25. Other Provisions.
(a) LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED
WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE
CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS
HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL
CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
(b) Landlord reserves the right to discontinue furnishing
electric energy to Tenant in the Premises at any time upon not less than thirty
(30) days' notice to Tenant. If Landlord exercises such right of termination,
this Lease shall continue in full force and effect and shall be unaffected
thereby, except only that, from and after the effective date of such
termination, Landlord shall not be obligated to furnish electric energy to
Tenant. If Landlord discontinues furnishing electric energy to Tenant, Tenant
shall arrange to obtain electric energy directly from the public utility company
furnishing electric service to the Building. Such electric energy may be
furnished to Tenant by means of the then existing building system feeders,
risers and wiring to the extent that the same are available, suitable and safe
for such purposes. All meters and additional panel boards, feeders, risers,
wiring and other conductors and equipment which may be required to obtain
electric energy directly from such public utility company shall be installed by
Landlord at Tenant's expense. There shall be no discontinuance of the furnishing
of electric current to the Premises by Landlord until Tenant has completed its
arrangements to obtain electric current directly from the public utility company
furnishing electric current to the Building, so that there is no interruption in
the continuity of electric service.
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(d) Electric Service Provider.
(1) Landlord Controls Selection. Landlord has advised
Tenant that presently PSE&G ("Electric Service Provider") is the utility company
selected by Landlord to provide electricity service for the Building.
Notwithstanding the foregoing, if permitted by Laws, Landlord shall have the
right at any time and from time to time during the Term of this Lease to either
contract for service from a different company or companies providing electricity
service (each such company shall hereinafter be referred to as an "Alternative
Service Provider") or continue to contract for service from the Electric Service
Provider.
(2) Tenant Shall Give Landlord Access. Tenant shall
cooperate with Landlord, the Electric Service Provider, and any Alternative
Service Provider at all times and, as reasonably necessary, shall allow
Landlord, Electric Service Provider, and any Alternative Service Provider
reasonable access to the Building's electric lines, feeders, risers, wiring, and
any other machinery within the Premises, as long as Tenant receives reasonable
prior notice, other than in an emergency.
(3) Landlord Not Responsible for Interruption of
Service. Landlord shall in no way be liable or responsible for any loss, damage,
or expense that Tenant may sustain or incur by reason of any change, failure,
interference, disruption, or defect in the supply or character of the electric
energy furnished to the Premises, or if the quantity or character of the
electric energy supplied by the Electric Service Provider or any Alternative
Service Provider is no longer available or suitable for Tenant's requirements,
and no such change, failure, defect, unavailability, or unsuitability shall
constitute an actual or constructive eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of rent or relieve Tenant from any of its
obligations under the Lease.
Dated as of the date first above written.
TENANT: eRESEARCHTECHNOLOGY, INC.
a Delaware corporation
By: /s/ Bruce Johnson
----------------------------------------
Name: Bruce Johnson
Title: Sr. Vice President & CFO
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LANDLORD: ADVANCE/GLB 2 L.L.C., a New Jersey
limited liability company
By: Glenborough Properties, L.P., its sole
member
By: Glenborough Realty Trust
Incorporated, its General Partner
By: /s/ Andrew Batinovich
----------------------------------------
Name: Andrew Batinovich
Title: President & COO
30
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EXHIBIT A
PLAN OF PREMISES
A-1
<PAGE>
[GRAPHIC OMITTED]
<PAGE>
EXHIBIT B
DESCRIPTION OF LAND AND/OR SITE PLAN
B-1
<PAGE>
[GRAPHIC OMITTED]
<PAGE>
EXHIBIT C
RENEWAL OPTION
Provided no Event of Default exists and Tenant is occupying
the entire Premises at the time of such election, Tenant may renew this Lease
for the Renewal Term, by delivering written notice of the exercise thereof to
Landlord nine (9) months before the expiration of the Term. The Basic Rent
payable for each month during such extended Term shall be the prevailing rental
rate (the "Prevailing Rental Rate") at the commencement of such extended Term,
for renewals of space of equivalent quality, size, utility and location, with
the length of the extended Term and the credit standing of Tenant to be taken
into account; provided, however, that in no event shall the Prevailing Rental
Rate be less than the rental rate in effect during the last year of the Term.
The Renewal Term shall be upon the same terms, covenants and
conditions of this Lease as shall be in effect immediately prior to the renewal,
except that:
(a) Basic Rent shall be adjusted to the Prevailing
Rental Rate;
(b) Landlord will establish a new Expense Estimate
which shall be effective as of the first day of the Renewal
Term;
(c) Tenant shall have no further renewal option
unless expressly granted by Landlord in writing; and
(d) Landlord shall lease to Tenant the Premises in
their then-current condition, and Landlord shall not provide
to Tenant any allowances (e.g., moving allowance, construction
allowance, and the like) or other tenant inducements.
For the purposes of determining the Prevailing Rental Rate,
the following procedures shall apply:
(i) Landlord shall give Tenant notice (the "Rent Notice") not
later than one hundred eighty (180) days prior to the commencement of the
Renewal Term, which Rent Notice shall set forth Landlord's determination of the
Prevailing Rental Rate ("Landlord's Determination");
(ii) Tenant shall give Landlord notice ("Tenant's Notice"),
within thirty (30) days after delivery of the Rent Notice, stating whether
Tenant accepts or disputes the Landlord's Determination or whether Tenant
desires to terminate its exercise of the Renewal Option. If Tenant's Notice
accepts Landlord's Determination or Tenant fails or refuses to give Tenant's
Notice, Tenant shall be deemed to have accepted Landlord's Determination. If
Tenant's Notice disputes Landlord's Determination, Tenant's Notice shall specify
Tenant's determination of the Prevailing Rental Rate ("Tenant's Determination")
as determined by an independent real estate appraiser;
(iii) Landlord shall give Tenant notice ("Landlord's Notice"),
within twenty (20) days after delivery of Tenant's Determination, of whether
Landlord accepts or disputes Tenant's Determination. If Landlord's Notice
accepts Tenant's Determination or if Landlord fails or refuses
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to give Landlord's Notice, Landlord shall be deemed to have accepted Tenant's
Determination. If Landlord's Notice disputes Tenant's Determination, Landlord
shall deliver to Tenant, within thirty (30) days after receipt of Tenant's
Notice, Landlord's determination of the Prevailing Rental Rate ("Landlord's
Second Determination"), as determined by an independent real estate appraiser.
If Landlord's Second Determination exceeds Tenant's Determination by ten percent
(10%) or less, the Basic Rent shall be the average of Landlord's Second
Determination and Tenant's Determination. If Landlord's Second Determination
exceeds Tenant's Determination by more than ten percent (10%), Landlord or
Tenant shall apply to the American Arbitration Association (or any successor
organization) to designate a third independent real estate appraiser (the "Third
Appraiser") in accordance with the then-prevailing rules, regulations and/or
procedures of the American Arbitration Association, and if the American
Arbitration Association (or any successor organization) shall be unable or
unwilling to designate the Third Appraiser, then either party may commence a
legal proceeding to have the Third Appraiser appointed.
(iv) The Third Appraiser shall conduct such hearings and
investigations as he may deem appropriate and shall, within thirty (30) days
after the date of designation of the Third Appraiser, choose either Landlord's
Second Determination or Tenant's Determination, and such choice shall be
conclusive and binding upon Landlord and Tenant. Each party shall pay its own
counsel fees and expenses in connection with any arbitration hereunder,
including the expenses and fees of any appraiser selected by it in accordance
with the terms hereof. The unsuccessful party shall bear the costs and expenses
of the Third Appraiser. Any appraiser appointed hereunder shall be an
independent real estate appraiser with at least ten (10) years experience in
leasing and valuation of properties which are similar in character to the
Building. The appraisers shall not have the power to add to, modify or change
any of the provisions of this Lease.
(v) If the final determination of the Prevailing Rental Rate
shall not be made on or before the first day of the Renewal Term, pending such
final determination, Tenant shall continue to pay, as the Basic Rent for the
Renewal Term, an amount equal to Landlord's Determination (or, if Landlord shall
have given Landlord's Second Determination, Landlord's Second Determination),
which amount shall in all events be in addition to all Additional Rent payable
under the terms of this Lease. If, based upon the final determination hereunder
of the Basic Rent, the payments made by Tenant on account of Basic Rent for such
portion of the Renewal Term were greater than the Basic Rent payable for the
Renewal Term, the amount of such excess shall be refunded by Landlord to Tenant
within ten (10) business days following the final determination of Basic Rent.
(vi) Landlord and Tenant shall promptly execute an amendment
to this Lease evidencing any extension of the Term pursuant to this Exhibit, but
no such amendment shall be necessary in order to make the provisions of this
Exhibit effective.
Tenant's rights under this Exhibit shall terminate if (1) this Lease or
Tenant's right to possession of the Premises is terminated, (2) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premises, (3)
Tenant fails to timely exercise its option under this Exhibit, time being of the
essence with respect to Tenant's exercise thereof, (4) Landlord determines, in
its sole but reasonable discretion, that Tenant's financial condition or
creditworthiness has materially deteriorated since the Date of this Lease, or
(5) an Event of Default exists at the time of exercise of the option or on the
date the renewal term would commence.
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EXHIBIT D
TENANT WORK LETTER
1. Landlord shall provide, at its sole cost and expense and as
its sole and exclusive contribution to the development of the Premises, the
Landlord's Work, which shall include only the following items:
(a) Interior core improvements, including first
floor main lobby, men's and women's toilet
rooms, telephone closets, electrical
closets, janitorial closets and core walls,
on all floors.
(b) Base building HVAC system, pursuant to
Exhibit D-1, Section 12(a), including
vertical duct to all floors.
(c) Radiant heat system around the perimeter of
each floor.
(d) Sprinkler system with heads turned up.
(e) Base building electrical system and
emergency lighting to all core areas.
(f) Tenant's electric meter in the first (1st)
floor electric closet.
(g) Insulated exterior walls with studs in place.
(h) For divided-floor tenancies, all walls
separating the Premises from other tenant
space. Landlord shall be responsible for
only one-half (1/2) of any demising wall to
be constructed by Tenant.
Except as set forth in this Exhibit, Tenant accepts
the Premises in their "AS-IS" condition on the date that this Lease is entered
into. It is understood that the plans for the Landlord's Work may be modified
for unavailable materials, code and building official compliance requirements,
field conditions and/or other reasonable conditions, at the reasonable
discretion of Landlord.
It is understood that the plans for the Landlord's
Work may be modified for unavailable materials, code and building official
compliance requirements, field conditions and/or other reasonable conditions, at
the reasonable discretion of Landlord.
2. As used herein, "Construction Documents" shall mean the
final construction documents to be approved by Landlord and Tenant, as amended
from time to time by any approved change orders, executed by Landlord and
Tenant, and "Work" shall mean all improvements to be constructed in accordance
with and as indicated on the Construction Documents, together with any work
required by governmental authorities to be made to other areas of the Building
solely as a result of the Work. Landlord's approval of the Construction
Documents shall not be a representation or warranty of Landlord that such
drawings are adequate for any use or comply with any Law, but shall merely be a
consent of Landlord thereto. Tenant shall, at Landlord's request, sign the
Construction Documents to evidence its review and approval thereof. All changes
in the Work must receive the prior written approval of Landlord and Tenant
(which approval shall not be unreasonably withheld, conditioned or delayed) and
in the event of any such approved change Tenant shall, upon completion of the
Work, furnish Landlord with an accurate, reproducible "as-built" plan of all the
changes as
D-1
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constructed. After the Construction Documents have been approved, Landlord shall
cause the Work to be performed in accordance with the Construction Documents.
If so requested by Tenant in writing, Landlord shall require
the contractor to seek at least three (3) bids from each of the major trades to
complete the Work based on the Construction Documents.
3. Landlord shall have the Construction Manager (as
hereinafter defined) prepare the Total Project Cost of the Work (as hereinafter
defined). Tenant shall notify Landlord whether it approves of the Total Project
Cost within three (3) business days after the submission thereof. If Tenant
fails to notify Landlord that it disapproves of the Total Project Cost within
such time period, then Tenant shall be deemed to have approved the Total Project
Cost. If Tenant notifies Landlord that it disapproves the Total Project Cost
within such time period, Tenant and Landlord shall, within five (5) business
days thereafter, value engineer the Total Project Cost. This process shall
continue until the Total Project Cost has been finally approved by Tenant;
provided, however, that the parties understand and agree that in the event the
Total Project Cost is not finally approved on or before sixty (60) days after
Lease execution, each such day beyond that date that the Budget is not finally
approved shall be deemed a Tenant Delay Day, and shall be subject to the
provisions of Paragraph 5 hereof.
4. Landlord shall retain the services of Advance Construction,
Inc. ("Construction Manager"), as Construction Manager, to complete the Work as
identified on the Construction Documents and the Landlord's Work. The terms of
the construction contract between Landlord and Construction Manager shall be as
agreed by Landlord and Tenant. The terms shall include an eight percent (8%)
Construction Manager's fee which shall include Construction Manager's corporate
overhead and profit. The project's general conditions shall be in addition to an
eight percent (8%) fee and will include costs for the project manager,
supervision, temporary utilities, clean-up and all other costs associated with
the Work.
5. Except for any such delay governed by the provisions of
Section 24(c) of the Lease, if a delay in the performance of the Work occurs
because (a) of any change by Tenant to the Construction Documents other than any
change that is required as a result of Landlord's failure to design the Building
in compliance with applicable law unless the non-compliance occurs as a result
of Tenant's acts or omissions, (b) of any specification by Tenant of materials
or installations in addition to or other than Landlord's standard finish-out
materials, (c) of unanticipated building code issues arising solely from the
Construction Documents, (d) Tenant fails to comply with the time schedules set
forth herein, or (e) Tenant or Tenant's agents otherwise delays completion of
the Work (any of the foregoing being a "Tenant Delay"), then, provided Landlord
has given Tenant prior notice of such event, and Tenant does not promptly cure,
notwithstanding any provision to the contrary in this Lease (each day of delay
caused by any such event shall be a "Tenant Delay Day"), Tenant's obligation to
pay Rent hereunder shall commence on the Commencement Date, as such day may be
adjusted by any Tenant Delay Day; provided, however, that no delay has been
caused by Landlord or any Landlord Party. Notwithstanding any provision to the
contrary in this Lease, Tenant's obligation to pay Rent shall commence no later
than six (6) months after Lease execution.
6. Landlord shall contribute $866,432.00 as the Construction
Allowance, based on a rate of $28.00 per square foot of Tenant's Rentable Square
Feet ($28 x 30,944 sf).
D-2
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7. The entire cost of performing the Work (including costs of
construction labor and materials, subcontracts, electrical usage within the
Premises during construction, additional janitorial services related to the
Work, related taxes, if any, all requirements of the construction contract,
insurance costs and general conditions), all as shall be contemplated by the
Total Project Cost, including all design fees is herein collectively called the
"Total Project Cost". Any portion of the Total Project Cost in excess of the
Construction Allowance shall be paid by Tenant. Upon approval of the
Construction Documents and the Total Project Cost and selection of
subcontractors, Tenant shall promptly execute an agreement prepared by Landlord
which identifies the Construction Documents, itemizes the Total Project Cost,
sets forth the Construction Allowance, and sets forth the initial share of the
Total Project Cost which is Tenant's responsibility ("Tenant's Contribution"),
the parties understanding that Tenant's Contribution shall be revised in the
event Additional Project Costs (hereinafter defined) are incurred as a result of
any change orders by Tenant. If Tenant requests any changes to the Work after
approval of the Construction Documents, Tenant shall pay all costs, including
permits and fees, architectural, engineering and related design expenses
directly resulting from such changes, and such costs shall be added to the Total
Project Cost (the "Additional Project Costs"). No such changes shall be made
without the prior written consent of Landlord which approval, so long as the
changes do not include changes outside the Premises, shall not be unreasonably
withheld, conditioned or delayed. Landlord shall not be responsible for delay in
occupancy by Tenant because of changes to the Construction Documents after
approval by Tenant as outlined above. Upon completion of such revised
Construction Documents, Landlord shall notify Tenant in writing of the cost
which will include a service fee of twenty-eight percent (28%) of the Additional
Project Costs, which shall be paid by Tenant together with monthly payments
during construction as provided for below. Said twenty-eight percent (28%)
service fee shall include Construction Manager's on-site overhead, profit and
fee (which items are not included in any other costs identified in this Lease),
corporate overhead, and Landlord's cost of processing the Additional Project
Costs. Tenant shall, within five (5) business days of Landlord's notice, notify
Landlord in writing whether Tenant desires to proceed with such changes. In the
absence of such written authorization or Tenant's notice of election not to
proceed with such changes, Landlord shall not be obligated to perform the Work
and Tenant shall be responsible and chargeable for any and all delays in
completion of the Premises resulting therefrom. To the extent that the Total
Project Cost does not exceed the Construction Allowance, Tenant shall receive a
Rent credit or refund of any such difference.
8. Upon Landlord's delivery to Tenant of a properly documented
invoice from the Construction Manager itemizing the portion of the Tenant's
Contribution then due, together with verification that the portion of the Work
described in the invoice has been completed and a lien waiver with respect to
such Work, Tenant shall, within fifteen (15) business days of its receipt of
such invoice (such invoices to be provided by Landlord to Tenant monthly during
the course of construction of the Work), make a payment to Landlord equal to
such portion of Tenant's Contribution as described in the invoice. Within two
(2) business days of the issuance of the certificate of occupancy (temporary or
final) for the Premises and/or prior to Tenant's occupancy of the Premises,
Tenant shall pay to Landlord the lesser of: (i) an amount as agreed to between
Landlord and Tenant; or (ii) 85% of the Tenant's Contribution less any prior
payments made by Tenant that have been received by Landlord as of such date. In
the event Landlord has not received all payments required by this paragraph 9,
Landlord has the right to withhold Tenant's occupancy of the Premises until such
date as Landlord has received such payments, notwithstanding the fact that the
Commencement Date has occurred, and Tenant's obligation to begin paying Rent has
commenced.
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Within thirty (30) days of completion of the Work, Landlord shall provide Tenant
with a properly documented invoice for the balance of Tenant's Contribution,
which shall be paid by Tenant within fifteen (15) business days thereafter.
Landlord and Tenant acknowledge and confirm that it is the intention of the
parties that, with respect to each invoice of the Construction Manager, Landlord
and Tenant shall each pay its proportionate share of the portion of the Total
Project Cost then due.
9. Tenant may make periodic inspections of the Premises during
the construction provided that such inspections are made during reasonable
business hours with prior notice to Landlord and provided further that Tenant is
accompanied by a representative of Landlord. Tenant shall advise Landlord
promptly in writing of any objection to the performance of the Work.
10. Within fifteen (15) business days of Landlord's notice to
Tenant that the Premises is completed, Tenant shall inspect the Premises in the
presence of Landlord and Landlord's construction manager to establish the Punch
List Items to be completed as soon thereafter as is reasonably possible. Any
costs reasonably incurred with respect to Punch List Items shall be included as
part of Total Project Cost and not as an additional cost to Tenant. Further,
within such time period, Landlord shall provide Tenant with a completion notice
described in Section 3(b) of the Lease.
11. Tenant's Work is defined as such limited work as Tenant
may contract separately from the construction contract. Tenant's Work may
include the following: (i) telecommunications and data lines and systems, (ii)
furniture installation; (iii) moving expenses; (iv) limited finishes; and (v)
equipment room. Subject to the provisions of Section 3(b) of the Lease, Tenant
may install Tenant's Work in the Premises in accordance with the terms of the
Lease and in compliance with the following:
(a) No such work shall proceed without Landlord's
prior written approval (such approval not to be unreasonably withheld,
conditioned or delayed) of (1) any contract Tenant enters into with respect to
Tenant's Work; (2) detailed plans and specifications for the work; and (3) a
certificate of worker's compensation insurance showing that Tenant maintains
insurance in accordance with the Lease.
(b) Tenant shall and shall cause its Construction
Managers to abide by all safety and construction laws, ordinances, rules and
regulations. All work and deliveries shall be scheduled through Landlord in
accordance with the Rules and Regulations attached as Exhibit H to the Lease.
Entry onto the Premises by Tenant's Construction Managers shall be pursuant to
the terms, covenants, provisions and conditions of the Lease. All Tenant's
materials, Tenant's Work, installations and decorations of any nature brought
upon or installed in the Premises before the Commencement Date shall be at
Tenant's risk, and (except for willful misconduct) neither Landlord nor any
party acting on Landlord's behalf shall be responsible for any damage thereto or
loss or destruction thereof. Tenant shall not employ any Construction Manager,
who, in Landlord's reasonable opinion, may prejudice Landlord's negotiations or
relationships with Landlord's Construction Managers or subConstruction Managers
with their employees, or as may disturb harmonious labor relations.
(c) Tenant shall reimburse Landlord for any
additional expense incurred by Landlord by reason of any Tenant Work not
performed in accordance with the terms hereof, or
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by reason of Tenant Delays caused by such Tenant Work, or by reason of cleanup,
which fails to comply with the provisions hereof.
12. All Work, and any alteration or improvement by Tenant in
accordance with this Exhibit of the Lease, shall be performed in accordance with
Exhibit D-1. Tenant shall promptly replace any such Work, alteration or
improvement that is not so performed, at Tenant's sole expense. Notwithstanding
any failure by Landlord to object to any such Work, alteration or improvement,
Landlord shall have no responsibility therefore.
13. To the extent not inconsistent with this Exhibit, Section
7(a) of this Lease shall govern the performance of the Work and Landlord's and
Tenant's respective rights and obligations regarding the improvements installed
pursuant thereto.
14. In the event Tenant defaults in any payment required by
this Exhibit, (following written notice to Tenant and Tenant's failure to pay
within ten (10) days of such notice) Landlord shall, in addition to all other
legally allowable remedies, have the same rights as in the case of an Event of
Default with respect to the payment of Rent under the Lease. Once the Punch List
Items have been completed in accordance with this Exhibit, Tenant shall pay to
Landlord, within five (5) business days of demand thereof, any remaining portion
of Tenant's Contribution.
15. Prior to the Commencement Date, Landlord will be required
to provide Tenant with a written notice specifying what portions of the initial
Work Tenant shall be obligated to remove prior to the end of the Term.
16. Any conflicts between this Exhibit and the Construction
Documents shall be resolved in favor of this Exhibit.
D-5
<PAGE>
EXHIBIT D-1
SCHEDULE OF STANDARD TENANT IMPROVEMENTS
The following Schedule of Standard Tenant Improvements is provided to
specify the minimum quality standards of the building materials to be used in
the construction of the interior Tenant improvements. Landlord is providing
Tenant with the usable premises in its "as-is" raw condition which consists of
only the main "home run" lines for HVAC and sprinkler.
1. Partitions
(a) Partitions within the Premises shall have 1/2"
gypsum board on each side of 3-5/8" metal studs, 16" on
center, taped and spackled. Partitions between the Premises,
corridor(s) and between the Premises and adjacent space, shall
have 5/8" fire code gypsum board, taped and spackled, on each
side of 3-5/8" metal studs, 16" on center above finished
ceiling to underside of metal deck. Demising partitions and
corridor partitions to have thermofibre insulation installed
within, and to be constructed from floor to underside of metal
deck above.
2. Doors and Bucks
(a) All frames to be hollow metal knock down door
frames.
(b) Doors within the Premises to be 3'-0" x 8'-0" x
1'3/4" solid core, stain grade birch veneer.
(c) Entrance doors from corridors thru to the
Premises to be full height (8'-0") double herculite frameless
3/4" clear glass doors, or double wood solid core
Mahogany veneer doors (see attached typical Tenant Entrance).
(d) All doors to be located, oriented and with
hardware in accordance with applicable codes.
3. Glazing
Glazing in windows, doors and partitions shall be as
required by code.
4. Hardware
(a) Provide cylindrical latch sets with lever handle,
on individual office doors within the Premises.
(b) Provide lock sets with level handle and closers,
on doors from corridor(s) to the Premises.
(c) Provide sets and latch sets to be Schlage, Series
"D", or equivalent, as approved by Landlord.
D1-1
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(d) All lock sets shall be keyed to the building
master key system.
5. Acoustical Ceilings
(a) Lay-in acoustic tile ceilings, within the
Premises, shall be 2' x 4' acoustical lay-in ceiling,
Armstrong Second Look II (white) in 15/16" grid (white).
(b) Ceiling heights within the Premises to be nominal
9'-0" at typical floors.
(c) Direction of ceiling grid to be as determined by
Landlord.
6. Floorings
(a) All carpet materials will be selected by Tenant
subject to flame spread rating submitted to both Fire
Department and Landlord.
(b) Supply rooms, telephone rooms, equipment rooms
and mail rooms within the Premises will receive vinyl
composition tile and 4" vinyl base.
7. Painting
(a) Interior wall surfaces of gypsum board shall
receive two (2) coats of flat latex paint, Benjamin Moore, or
equal, colors to be selected by Tenant.
(b) All interior ferrous metal surfaces shall receive
two (2) coats of alkyd semi-gloss enamel paint over
shop-applied primer.
(c) All wood doors to receive one (1) coat of sealer
and two (2) coats of clear polyurethane waterbase satin finish
or two (2) coats of enamel.
(d) All wall covering materials will be selected by
Tenant subject to flame spread rating must be submitted to
both Fire Department and Landlord.
8. Window Covering
Building standard blinds shall be Levolor - Riviera
Dustguard 1" Horizontal aluminum blind. Color #892 Low Gloss
Black. Substitution of building standard blinds by Tenants is
not permitted.
9. Electrical Specifications
(a) Lighting: 2' x 4' recessed flourescent lay-in 3"
deep, 18 cell low iridescence Parabolic louver (1 fixture per
80SF), Energy efficient ballast.
(b) The average electric load of the Premises shall
not exceed sib (6) watts per usable square foot for power and
three (3) watts per square foot for lighting.
10. Fire and Life Safety Features
(a) The building is to be fully sprinklered.
D1-2
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(b) Sprinkler installation to consist of recessed
heads sprinklers with white covers in Tenant's space.
(c) Fire alarm system consisting of manual pull
boxes, annunciators, alarm bells, control panel, to code.
(d) Smoke detectors, photoelectric type in elevator
lobbies, electric equipment rooms, elevator machine rooms, and
in ducts where quantity is over 15,000 CFM. Firestats in the
duct work where air quantity is less than 15,000 CFM.
(e) Emergency and exit lighting in public spaces.
(f) All work involving smoke detectors and fire
alarms must be performed by Landlord's designated
subcontractor.
11. Telephone Data
(a) Landlord shall arrange with local telephone
company for telephone service within the equipment room in the
building core.
(b) All telephone work and wiring in partitions,
floors and ceilings to be paid for by Tenant and arrange for
by Tenant with the telephone company or other qualified
installer selected by Tenant but approved by Landlord.
Landlord will coordinate work with other trades as required.
All electrical load centers, special wiring and plywood,
supplied for telephone equipment, shall be an extra cost to be
paid by Tenant. Telephone and data wiring is to meet all
prevailing codes.
(c) Fibre optic capability is available on Route 22
to Tenant, at Tenant's expense.
12. HVAC Specification
(a) Heating, ventilation and air-condition system
shall be capable of maintaining the following interior
conditions, subject to governmental regulations:
Summer - 78 degrees F (+/-2 degrees C) dry bulb and
50% relative humidity when outside temperature is 90 degrees F
dry bulb and 75 degrees F wet.
Winter - 70 degrees F when outside temperature is 13
degrees F.
(b) HVAC systems shall be variable air volume
(V.A.V.) system. V.A.V. - DDC control units will have
automatic thermostats and volume controls mounted in the rooms
or open spaces within the Premises. Control units can operate
from 100% of nominal volume to 10% of nominal volume.
(c) The control units are connected to supply duct
systems which are supplied with conditioned air from rooftop
air handling units with cooling coils, filters, mixing dampers
and relief dampers.
(d) A control panel for each system contains time
clock, refrigeration step controller, duct supply air control
thermostat and automatic economizer controls.
D1-3
<PAGE>
(e) HVAC. Design Conditions:
Summer Outside 90 degrees Fahrenheit Dry Bulb 75
Fahrenheit Wet Bulb
Summer Inside 78 degrees Fahrenheit Dry Bulb +/-2
degrees
Winter Outside 13 degrees Fahrenheit 15 MPH wind
Winter Inside 70 degrees Fahrenheit Dry Bulb
(f) HVAC Zoning:
o All exterior zones shall have one
VAV box per 1200 square feet and one
VAV box per corner office (two or
more exposure).
o All interior spaces shall have one
VAV box per 2000 square feet.
o All interior perimeter shall have
not water radiant ceiling heat
panels.
(g) HVAC Ductwork. Medium pressure duct system will
be designed at air velocity range from 2500 - 3000 FPM. All
ductwork will be installed in accordance with the latest
SMACANA Standards.
(h) If Tenant's interior layout provides for an above
normal amount of floor-to ceiling partitions, or if Tenant's
equipment (i.e., conference rooms, mail rooms, lunch rooms,
etc.( requires air-conditioning above and beyond building
standard, as outlined, said additional air-conditioning
(including cost of operation as stipulated on the Lease) shall
be paid for by Tenant as an extra cost. Any special exhaust
requirements will also be an extra costs to be paid by Tenant.
(i) All work involving the connection of HVAC control
systems must be performed by Landlord's designated contractor.
13. Disturbance to Other Tenants
Penetration of another tenant's space shall not
commence until Tenant has notified Landlord and Landlord has
approved the schedule of work. The tenant whose space is being
penetrated has the right to demand the work within its area be
done on an overtime basis.
14. Noise
The use of jack hammers, core drilling, or other
heavy noise shall not be used until Landlord has been notified
and has given approval.
D1-4
<PAGE>
EXHIBIT E
AMENDMENT NO. 1
This Amendment No. 1 (this "Amendment") is executed as of
______________, 199___ between ADVANCE/GLB 2 L.L.C., a New Jersey limited
liability company ("Landlord"), and eRESEARCHTECHNOLOGY, INC., a Delaware
("Tenant"), for the purpose of amending the Lease Agreement between Landlord and
Tenant dated ______________, 2000 (the "Lease"). Capitalized terms used herein
but not defined shall be given the meanings assigned to them in the Lease.
AGREEMENTS
For valuable consideration, whose receipt and sufficiency are
acknowledged, Landlord and Tenant agree as follows:
(a) Condition of Premises. Tenant has accepted possession of the
Premises pursuant to the Lease. Any improvements required by
the terms of the Lease to be made by Landlord have been
completed to the full and complete satisfaction of Tenant in
all respects except for the punchlist simultaneously delivered
to Landlord (the "Punchlist Items"), and except for such
Punchlist Items, Landlord has fulfilled all of its duties
under the Lease with respect to such initial tenant
improvements. Furthermore, Tenant acknowledges that the
Premises are suitable for the Permitted Use.
(b) Commencement Date. The Commencement Date of the Lease is
__________, 2000. If the Anticipated Commencement Date set
forth in the Lease is different than the date set forth in the
preceding sentence, then the Commencement Date as contained in
the Lease is amended to be the Commencement Date set forth in
the preceding sentence.
(c) Expiration Date. The Term is scheduled to expire on
__________, 2000. If the scheduled expiration date of the
initial Term as set forth in the Lease is different than the
date set forth in the preceding sentence, then the scheduled
expiration date as set forth in the Lease is hereby amended to
the expiration date set forth in the preceding sentence.
(d) Contact Numbers. Tenant's telephone number in the Premises is
_________. Tenant's telecopy number in the Premises is
__________.
(e) Ratification. Tenant and Landlord each hereby ratify and
confirm its obligations under the Lease, and represents and
warrants to the other that, to the best
E-1
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of its knowledge, it has no defenses thereto. Additionally,
Tenant and Landlord each further confirms and ratifies that,
as of the date hereof, the Lease is and remains in good
standing and in full force and effect, and such party has no
claims, counterclaims, set-offs or defenses against the other
arising out of the Lease or in any way relating thereto or
arising out of any other transaction between Landlord and
Tenant.
(f) Binding Effect; Governing Law. Except as modified hereby, the
Lease shall remain in full effect and this Amendment shall be
binding upon Landlord and Tenant and their respective
successors and assigns. If any inconsistency exists or arises
between the terms of this Amendment and the terms of the
Lease, the terms of this Amendment shall prevail. This
Amendment shall be governed by the laws of the State of New
Jersey.
(g) Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall constitute an original, but
all of which shall constitute one document.
Executed as of the date first written above.
TENANT: eRESEARCHTECHNOLOGY, INC.,
-------------------------
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
LANDLORD: ADVANCE/GLB 2 L.L.C., a New Jersey limited
liability company
By: Glenborough Properties,
L.P., its sole member
By: Glenborough Realty Trust
Incorporated, its General
Partner
By:
---------------------------------
Name:
Title:
E-2
<PAGE>
EXHIBIT F
GUARANTY
As a material inducement to Landlord to enter into the Lease,
dated August __, 2000 (the "Lease"), between eResearch Technologies, as Tenant,
and ADVANCE/GLB 2, L.L.C., as Landlord, PRWW, Inc. ("Guarantor") hereby
unconditionally and irrevocably guarantees the complete and timely performance
of each obligation of Tenant (and any assignee) under the Lease and any
extensions or renewals of and amendments to the Lease. This Guaranty is an
absolute, primary, and continuing, guaranty of payment and performance and is
independent of Tenant's obligations under the Lease. Guarantor (and if this
Guaranty is signed by more than one person or entity, each Guarantor hereunder)
shall be primarily liable, jointly and severally, with Tenant and any other
guarantor of Tenant's obligations. Guarantor waives any right to require
Landlord to join Tenant with Guarantor in any suit arising under this Guaranty,
proceed against or exhaust any security given to secure Tenant's obligations
under the Lease, or pursue or exhaust any other remedy in Landlord's power.
Landlord may, without notice or demand and without affecting Guarantor's
liability hereunder, from time to time, compromise, extend or otherwise modify
any or all of the terms of the Lease. Guarantor hereby waives all demands for
performance, notices of performance, and notices of acceptance of this Guaranty.
The liability of Guarantor under this Guaranty will not be affected by the
release or discharge of Tenant from, or impairment, limitation or modification
of, Tenant's obligations under the Lease in any bankruptcy, receivership, or
other debtor relief proceeding, whether state or federal and whether voluntary
or involuntary; the rejection or disaffirmance of the Lease in any such
proceeding; or the cessation from any cause whatsoever of the liability of
Tenant under the Lease. Guarantor shall pay to Landlord all costs incurred by
Landlord in enforcing this Guaranty (including, without limitation, reasonable
attorneys' fees and expenses). The obligations of Tenant under the Lease to
execute and deliver estoppel statements, as therein provided, shall be deemed to
also require the Guarantor hereunder to do so and provide the same relative to
Guarantor following written request by Landlord in accordance with the terms of
the Lease.
Notwithstanding the foregoing, in the event (a) of an initial public
offering of Tenant wherein Tenant receives a minimum of $40,000,000.00 in equity
capital and (b) Tenant has at least $45,000,000.00 in Shareholder equity in its
audited financial statements, then in that event Landlord agrees not to enforce
the provisions of this Guaranty from and after the date that Tenant provides
Landlord with documentation evidencing the satisfaction of the conditions set
forth in (a) and (b) herein.
F-1
<PAGE>
eResearch Technology, Inc. PRWW, Inc.
By: /s/ Bruce Johnson By: /s/ Joel Morganroth
------------------------------- ----------------------------
Name: Bruce Johnson Name: Joel Morganroth
Title: Sr. Vice President & CFO Title: Chairman & CEO
F-2
<PAGE>
EXHIBIT G
CLEANING SPECIFICATIONS
Private And General
Office Cleaning: Performed daily, Monday through Friday, except
for Building Holidays.
1. Hand dust and wipe clean within reach, all
office doors and furniture to include desks,
chairs, chair rails, tables, files, cabinets,
safes, etc.
2. Dust all window sills, baseboard, and
baseboard heating, wash off same whenever
necessary.
3. Wash all glass tables and desk tops.
4. Empty and clean all waste baskets,
receptacles, damp dust and wash same whenever
necessary.
5. Trash liners to be changed as needed.
6. Vacuum clean all carpeting each night, spot
clean weekly.
7. Remove all finger prints from windows, light
switches and doorways.
8. Dust under all desk equipment and telephones.
9. Upon completion of the foregoing work
assignments, all lights will be turned off,
all doors locked and premises left in a neat
and orderly condition. Attention to be given
to interior lights being turned off.
Conference And Training
Room Cleaning: Performed daily, Monday through Friday, except
for Building Holidays.
1. Vacuum carpet and remove spots nightly.
2. Wipe clean and dust all tables, chairs, built
in woodworking and marking board, unless
labeled otherwise not to clean.
3. Remove stains from wall fabric.
4. Empty and reline trash cans as needed.
5. After cleaning, arrange furniture and turn
off lights.
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Stairway And
Elevator Cleaning: Performed daily, Monday through Friday, except
for Building Holidays.
1. Vacuum carpet and remove spots.
2. Clean and polish stainless steel handrails,
doors, door frames and wipe clean elevator
walls.
3. Thoroughly vacuum elevator door tracks.
4. Wipe clean handrails in stairways as well as
doors.
5. Damp mop and/or sweep steps and landings.
6. Wipe clean and dust stairway stringers and
undersides.
Lobby And Corridor
Cleaning (Public Areas): Performed daily, Monday through Friday, except
for Building Holidays.
1. Vacuum carpet and remove spots.
2. Clean and polish glass, handrails, and entry
Doors.
3. Dust all lounge furniture, displays,
woodworking and brush upholstery. Upholstery
to be vacuumed weekly.
4. Remove all fingerprints from all glass and
dust wood handrails.
5. Wash and sanitize all water fountains and
bottled water dispensers.
6. Wipe all exterior elevator metal clean.
Restroom Cleaning: Performed daily, Monday through Friday, except
for Building Holidays.
1. Sweep and mop floors using approved
disinfectant process.
2. Spot wash all tile walls and metal dividing
partitions.
3. Scour clean and disinfect all basins, bowls
and urinals. This will include the undersides
of these fixtures.
4. Wash and disinfect both sides of all toilet
seats.
5. Wash and polish all mirrors, bright work and
enamel surfaces.
6. Empty and clean all waste receptacles, liners
to be replaced daily.
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7. Fill all tissue, towel, sanitary napkin,
toilet seat cover and soap dispensers.
Grounds And Exterior
Walkway Cleaning: Performed daily, Monday through Friday, except
for Building Holidays.
1. All entrance walkways and steps should be
swept.
2. Exterior metal handrails are to be wiped
clean.
3. All litter to be picked up and discarded in
proper receptacles.
Periodic Cleaning
Requirements: To be performed weekly
1. Sanitize all public and private telephones.
2. Machine scrub all tile flooring in the
corridors, cafeteria and restrooms.
3. Dust the tops of all modular furniture
systems.
4. Dust all chair bases.
5. Damp wipe all desk tops that are cleared of
papers.
6. High dust all furniture, pictures and
equipment not performed daily.
7. Machine clean elevator.
Periodic Cleaning
Requirements
(Continued): To be performed as specified
1. Every (3) three months, machine scrub, wash
and polish all resilient flooring, apply (2)
two coats of non-slip floor wax.
2. Every month, clean the interior of all
refrigerators, per procedure.
General Cleaning
Guidelines: To be performed as noted and required
1. Collect and place all office garbage in the
compactor dumpster located on the site.
Follow the established recycling procedures
to determine what goes where.
G-3
<PAGE>
2. Report all irregularities, damaged equipment
and furniture and anything else that is out
of order to the building manager as soon as
possible.
3. Secure entire building per the established
closing procedures.
G-4
<PAGE>
EXHIBIT H
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the
Premises, the Building, the Park, and the appurtenances thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and
other similar areas shall not be obstructed by tenants or used by any tenant for
purposes other than ingress and egress to and from their respective leased
premises and for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for
the purposes for which designed, and no sweepings, rubbish, rags or other
unsuitable material shall be thrown or deposited therein. Damage resulting to
any such fixtures or appliances from misuse by a tenant or its agents, employees
or invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be inscribed,
painted, affixed of displayed in, on, upon or behind any windows or doors,
except as may be required by law or agreed upon by the parties; and no company
name, logo, sign, advertisement or notice shall be inscribed, painted or affixed
outside the tenant's leased premises or entrance or on any doors, without the
prior written consent of Landlord, which shall not be unreasonably withheld,
conditioned or delayed. If such consent is given by Landlord, any such sign,
advertisement or notice shall be inscribed, painted or affixed by Landlord, but
the cost of same shall be charged to and be paid by Tenant, and Tenant agrees to
pay the same promptly, on demand. Landlord agrees that each tenant shall be
suitably identified by providing standard signs within the Building. No signs,
advertisements or notices of any kind shall be affixed to the outside of any
tenant's leased premises, or to the Land or the Park, without the express
written consent of the Landlord. No curtains or other window treatments shall be
placed between the glass and the Building standard blinds.
4. Landlord shall provide all door locks in each tenants
leased premises, at the cost of such tenant, and no tenant shall place any
additional door locks in its leased premises without Landlords prior written
consent. Two (2) keys will be furnished to Tenant by Landlord; two (2)
additional keys will be supplied to Tenant, by Landlord upon request, and
without charge. Any additional keys will be supplied to Tenant by Landlord upon
request, and without charge. Any additional keys requested by Tenant shall be
paid for by Tenant. All keys to doors and washrooms shall be returned to
Landlord upon the termination of the tenancy, and, in the event of loss of any
keys furnished, tenant shall pay Landlord the cost thereof.
5. Movement in or out of the Building of furniture or office
equipment, or dispatch or receipt by tenants of any bulky material, merchandise
or materials which require use of elevators or stairways, or movement through
the Building entrances or lobby shall be conducted under Landlord's reasonable
supervision at such times and in such a manner as Landlord may reasonably
require. Each tenant assumes all risks of and shall be liable for all damage to
articles
H-1
<PAGE>
moved and injury to persons or public engaged or not engaged in such movement,
including equipment, property and personnel of Landlord if damaged or injured as
a result of acts in connection with carrying out this service for such tenant,
but the cost to correct all damage done to the Building and/or the Park by
moving or maintaining any such equipment or freight shall be paid by any such
tenant. Landlord reserves the right to reasonably inspect all freight to be
brought into the Building, and to exclude from the Building all freight which
violates any of these Rules and Regulations, or violates the Lease, of which
these Rules and Regulations are a part. Tenant shall provide Landlord with ten
(10) days written notice prior to the positioning or installation of any item
requiring Landlord's attention under this paragraph, provided that such
requirement shall not apply to Tenant's initial alterations.
6. Landlord may reasonably prescribe size and weight
limitations and determine the locations for safes and other heavy equipment or
items, which shall in all cases be placed in the Building so as to distribute
weight in a manner reasonably acceptable to Landlord which may include the use
of such supporting devices as Landlord may reasonably require. All damages to
the Building caused by the installation or removal of any property of a tenant,
or done by a tenant's property while in the Building, shall be repaired at the
expense of such tenant.
7. Corridor doors, when not in use, shall be kept closed.
Nothing shall be swept or thrown into the corridors, halls, elevator shafts or
stairways. No bicycles, vehicles or animals shall be brought into or kept in, on
or about any tenants leased premises. No portion of any tenants leased premises
shall at any time be used or occupied as sleeping or lodging quarters.
8. Each tenant shall cooperate with Landlord's employees in
keeping its leased premises neat and clean. Tenants shall not enter into any
contract of any kind with any supplier to towels, water, toilet articles,
waxing, rug shampooing, venetian blind washing, furniture polishing, lamp
servicing, cleaning of electrical fixtures, removal of waste paper, rubbish or
garbage, without the prior written consent of Landlord, which shall not be
unreasonably withheld, conditioned or delayed.
Tenant shall not employ any person or persons other than
Landlord's janitors for the purpose of cleaning its leased premises, without
prior written consent of Landlord. Landlord shall not be responsible to any
tenant for any loss of property from its leased premises, however occurring, or
for any damage done to the effects of such tenant by such janitors or any of its
employees, or by any other person or any other cause. Each tenant is responsible
for notifying Landlord within eight (8) hours of any spill or stain on their
carpet, so that Landlord may insure the janitorial service will remove the stain
at such tenant's expense. If Landlord is not notified, but observes the stain,
then Landlord may enter the leased premises and have the stain removed and bill
the tenant for the reasonable cost of removing same.
9. To ensure orderly operation of the Building, no ice,
towels, etc. shall be delivered to any leased premises except by persons
approved by Landlord, provided, however, that water and newspapers may be
delivered to a leased premises without Landlord's approval.
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10. Tenant shall not make or permit any vibration or improper,
unusual, objectionable or unpleasant noises or odors in the Building or
otherwise unreasonably interfere in any way with other tenants or persons having
business with them.
11. No machinery of any kind (other than normal office
equipment) shall be operated by any tenant on its leased area without Landlord's
prior written consent, nor shall any tenant use or keep in the Building any
flammable or explosive fluid or substance, except in such quantities as are
normally used for cleaning or as office supplies.
12. Landlord will not be responsible for lost or stolen
personal property, money or jewelry from tenant's leased premises or public or
common areas regardless of whether such loss occurs when the area is locked
against entry or not unless this results from the gross negligence or willful
misconduct of Landlord.
13. No vending or dispensing machines of any kind may be
maintained in any leased premises without the prior written consent of Landlord,
which shall not be unreasonably withheld, conditioned or delayed.
14. Tenant shall not conduct any activity on or about the
Premises or Building which will draw pickets, demonstrators, or the like.
15. All vehicles are to be currently licensed, in good
operating condition, parked for business purposes having to do with Tenants
business operated in its leased premises, parked within designated parking
spaces, one vehicle to each space. No vehicle shall be parked as a "billboard"
vehicle in the parking lot. Any vehicle parked improperly may be towed away.
Tenant, tenants agents, employees, vendors and customers who do not operate or
park their vehicles as required shall subject the vehicle to being towed at the
expense of the owner or driver. Landlord may place a "boot" on the vehicle to
immobilize it and may levy a charge of $50.00 to remove the "boot." Tenant shall
indemnify, hold and save harmless Landlord of any liability arising from the
towing or booting of any vehicles belonging to Tenant or a Tenant Party.
16. No tenant may enter into phone rooms, electrical rooms,
mechanical rooms, or other service areas of the Building unless accompanied by
Landlord or the Building manager.
17. Tenant shall not use the Premises for any use which is
disreputable, creates extraordinary fire hazards, or results in an increased
rate of insurance on the Building or its contents, or for the storage of any
Hazardous Materials, except in de minimus quantities in accordance with Laws.
18. Building hours shall be from Monday through Friday 7:30
a.m. to 5:30 p.m. except for Building Holidays (the "Business Hours"). Except as
otherwise provided in the Lease, Tenant shall at all times have access to the
Premises, Building and Parking Area. Except as
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otherwise provided in the Lease, Landlord however, reserves the right to
reasonably limit or regulate access to the Building and any leased premises
during nights and weekends, if required, to insure security of the Building and
the Park. Landlord reserves the right to exclude from the Building, at any time
other than the Business Hours, all persons who do not present a pass to the
Building signed by a tenant or an employee ID or key card of any tenant. Each
Tenant shall be responsible for all persons for whom it issues such a pass, ID
or key card and shall be liable to the Landlord for all acts of such persons.
During any time other than the Business Hours, Landlord shall not be required to
provide any HVAC through the central system of the Building. Such services shall
be limited to the perimeter units located with Tenant's leased premises. If
Tenant desires any of the services specified in Section 6(a)(2) of the Lease:
(A) at any time other than the Business Hours, or (B) on weekends or Building
Holidays, then such services shall be supplied to Tenant by using the HVAC
override switch on each floor at $40.00 per hour.
"Building Holidays" shall mean New Year's Day, Washington's
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's
Day, Thanksgiving Day and the day after, and Christmas Day, as each of said
holidays are celebrated in the State in which the Land is located and such other
days as Federal and State law provide or building service contracts or union
contracts specify.
19. Tenant shall not paint or install lighting or decorations,
window or door lettering, or advertising media of any type on or about the
Premises without the prior written consent of Landlord, which shall not be
unreasonably withheld, conditioned or delayed; however, Landlord may withhold
its consent to any such painting or installation which would affect the
appearance of the exterior of the Building or of any common areas of the
Building.
20. The Building is a smoke-free environment. There shall be
no smoking permitted anywhere in the Building within and including common areas,
bathrooms, hallways, stairwells and lobbies. Smoking is not permitted anywhere
within each tenant's leased premises.
The Landlord provides receptacles outside of each
Building's rear entrance for use by those who do smoke. Smokers are requested to
use the receptacles on the ground. Do not discard cigarette butts on the ground
or outside the Building entrances so as to avoid an unsightly mess.
21. When electrical wiring of any kind is introduced, it must
be connected as reasonably directed by Landlord, and no stringing or cutting of
wires will be allowed, except with the prior written consent of Landlord, and
shall be done only by contractors approved by Landlord.
22. Service call hours are:
Monday - Friday
8:30 a.m. to 5:00 p.m.
Phone Number: 908-719-3000
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In the event of an emergency, whether plumbing, water
leaks, power outage, fire, theft, etc., Landlord's maintenance department must
be contacted immediately at the main telephone number 908-719-3000.
23. The requirements of Tenant will be attended to only upon
the making of an application at the office of the Building Manager. Employees of
Landlord shall not perform any work for any tenant or do anything outside of
their regular duties unless under special instructions from the office of
Landlord. Landlord agrees to keep tenants advised at all times of how to contact
the Building Manager.
24. (a) Tenant shall not conduct, or permit any other person
to conduct, any auction on its leased premises; manufacture or store goods,
wares or merchandise upon its leased premises, without the prior written
approval of Landlord, except for the storage of usual supplies and inventory to
be used by Tenant in the conduct of its business; shall not permit its leased
premises to be used for gambling; shall not permit any musical instruments to be
played in its leased premises; shall not permit to be played any radio,
television, record or wire music in such loud manner as to disturb or annoy
other tenants of the Building; or permit any unusual odors to be produced upon
its leased premises. Tenant shall not occupy or permit any portion of its leased
premises to be occupied as an office of public stenographer or for the
possession, storage, manufacture or sale of intoxicating beverages, tobacco in
any form, or as a barber or manicure shop.
(b) No awnings or other projections shall be attached to
the outside walls of the Building. No curtains, blinds, shades or screens shall
be attached or hung in, or used in connection with, any window or door of the
premises without the prior written consent of Landlord. Any curtains, blinds and
shades must be a quality, type, design and color and attached in a manner
approved by Landlord.
(c) Canvassing, solicitation and peddling in the Building
are prohibited, and each tenant shall cooperate to prevent the same.
(d) There shall not be used in the leased premises, or the
Building, either by Tenant or by others, in the delivery or receipt of
merchandise, any hand trucks except those equipped with rubber tires and side
guards.
(e) Landlord shall have the right to prohibit any
advertising by tenant which, in Landlord's reasonable opinion, tends to impair
the reputation of the Building or its desirability as a Building for offices,
and upon written notice from Landlord, Tenant shall refrain from or discontinue
such advertising.
(f) Landlord hereby reserves to itself any and all rights
not granted to Tenant hereunder.
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EXHIBIT I
FORM OF TENANT ESTOPPEL CERTIFICATE
The undersigned is the Tenant under the Lease (defined below)
between ADVANCE/GLB 2 L.L.C., a New Jersey limited liability company, as
Landlord, and the undersigned as Tenant, for the Premises on the __________
floor(s) of the office building located at _____________________, __________ and
commonly known as _______________________, and hereby certifies as follows:
1. The Lease consists of the original Lease Agreement dated as
of ___________, 199___ between Tenant and Landlord ['s predecessor-in-interest]
and the following amendments or modifications thereto (if none, please state
"none"):________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The documents listed above are herein collectively referred to as the
"Lease" and represent the entire agreement between the parties with respect to
the Premises. All capitalized terms used herein but not defined shall be given
the meaning assigned to them in the Lease.
2. The Lease is in full force and effect and has not been
modified, supplemented or amended in any way except as provided in Section 1
above.
3. The Term commenced on __________________, 200__ and the
Term expires, excluding any renewal options, on _____________________, 200__,
and Tenant has no option to purchase all or any part of the Premises or the
Building or, except as expressly set forth in the Lease, any option to terminate
or cancel the Lease.
4. Tenant currently occupies the Premises described in the
Lease and Tenant has not transferred, assigned, or sublet any portion of the
Premises nor entered into any license or concession agreements with respect
thereto except as follows (if none, please state "none"):_______________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
5. All monthly installments of Basic Rent, all Additional Rent
and all monthly installments of estimated Additional Rent have been paid when
due through _____________ . The current monthly installment of Basic Rent is
$_______________ .
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6. All conditions of the Lease to be performed by Landlord
necessary to the enforceability of the Lease have been satisfied and Landlord is
not in default thereunder. In addition, Tenant has not delivered any notice to
Landlord regarding a default by Landlord thereunder.
7. As of the date hereof, there are no existing defenses or
offsets, or, to the undersigned's knowledge, claims or any basis for a claim,
that the undersigned has against Landlord and no event has occurred and no
condition exists, which, with the giving of notice or the passage of time, or
both, will constitute a default under the Lease.
(h) No rental has been paid more than 30 days in advance and no
security deposit has been delivered to Landlord except as
provided in the Lease.
(i) If Tenant is a corporation, partnership or other business
entity, each individual executing this Estoppel Certificate on
behalf of Tenant hereby represents and warrants that Tenant is
a duly formed and existing entity qualified to do business in
the State of New Jersey and that Tenant has full right and
authority to execute and deliver this Estoppel Certificate and
that each person signing on behalf of Tenant is authorized to
do so.
(j) There are no actions pending against Tenant under any
bankruptcy or similar laws of the United States or any state.
(k) Other than in compliance with all applicable laws and
incidental to the ordinary course of the use of the Premises,
the undersigned has not used or stored any hazardous
substances in the Premises.
(l) All tenant improvement work to be performed by Landlord under
the Lease has been completed in accordance with the Lease and
has been accepted by the undersigned and all reimbursements
and allowances due to the undersigned under the Lease in
connection with any tenant improvement work have been paid in
full.
Tenant acknowledges that this Estoppel Certificate may be
delivered to Landlord, Landlord's Mortgagee or to a prospective mortgagee or
prospective purchaser, and their respective successors and assigns, and
acknowledges that Landlord, Landlord's Mortgagee and/or such prospective
mortgagee or prospective purchaser will be relying upon the statements contained
herein in disbursing loan advances or making a new loan or acquiring the
property of which the Premises are a part and that receipt by it of this
certificate is a condition of disbursing loan advances or making such loan or
acquiring such property.
Executed as of ________________, 200_.
TENANT: eRESEARCHTECHNOLOGY, INC.,
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a Delaware corporation
By:_________________________________
Name:_______________________________
Title:______________________________
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EXHIBIT J
Intentionally Omitted
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EXHIBIT K
Intentionally Omitted
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EXHIBIT L
Intentionally Omitted
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EXHIBIT M
Intentionally Omitted
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EXHIBIT N
Intentionally Omitted
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EXHIBIT O
SIGNAGE
The Landlord shall provide, at its sole expense, directory
signage at the main lobby, and a directory on upper floors as required.
On or before the date which is thirty (30) days following the
Date of this Lease, Tenant shall engage a consultant to design a sign on behalf
of Tenant to be erected on the third floor on the side of the Building
designated by Landlord. Landlord shall have the right to review and approve the
design (which approval shall not be unreasonably withheld, delayed or
conditioned). The sign shall be designed, constructed and installed in
accordance with all Laws. Landlord's approval of the design therefor shall not
be a representation that the design complies with any Law.
All costs incurred by Landlord in connection with the sign,
including design, construction, approvals, installation, and removal shall be
paid by Tenant. The obligation to pay removal costs shall survive the
termination or expiration of this Lease.
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EXHIBIT P
Estimated Annual Operating Expenses
Advance at Bridgewater III
ITEM $ per Square Feet
-------------------------------------------------------------------------------
Electric 1.25
-------------------------------------------------------------------------------
Gas 0.15
-------------------------------------------------------------------------------
Sewer/Water 0.12
-------------------------------------------------------------------------------
Telephone Expenses 0.03
-------------------------------------------------------------------------------
Janitorial (Contract & Supplies) 0.79
-------------------------------------------------------------------------------
Porter 0.15
-------------------------------------------------------------------------------
Window Cleaning 0.03
-------------------------------------------------------------------------------
Exterminating 0.01
-------------------------------------------------------------------------------
HVAC Repairs & Maintenance 0.09
-------------------------------------------------------------------------------
Electrical Repairs & Supplies 0.02
-------------------------------------------------------------------------------
Interior Repairs 0.02
-------------------------------------------------------------------------------
Security/Fire/Life Safety 0.04
-------------------------------------------------------------------------------
Elevators 0.06
-------------------------------------------------------------------------------
Snow Removal 0.15
-------------------------------------------------------------------------------
Landscaping 0.19
-------------------------------------------------------------------------------
Roof Maintenance 0.01
-------------------------------------------------------------------------------
R&M - Other 0.08
-------------------------------------------------------------------------------
Trash Removal 0.09
-------------------------------------------------------------------------------
Management Fee 0.55
-------------------------------------------------------------------------------
Insurance 0.09
-------------------------------------------------------------------------------
Equipment Lease 0.10
-------------------------------------------------------------------------------
On-Site Expense 0.03
-------------------------------------------------------------------------------
Property Manager/Admin. Payroll 0.20
-------------------------------------------------------------------------------
R&M Payroll 0.30
-------------------------------------------------------------------------------
Real Estate Taxes 2.25
-------------------------------------------------------------------------------
Total 6.99
-------------------------------------------------------------------------------
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EXHIBIT Q
OPERATING COSTS EXCLUSIONS
1. Capital expenditures made to the Building or the Park, including
building structure, foundations, roof deck and any expansion of the
Building, its systems or parking lot, and any costs incurred as a result
of any regulations not related to Tenant's occupancy of the Premises but
not excluding capital improvements described and permitted in paragraph
4(b)(1) of the Lease.
2. Repair, replacements and general maintenance paid by proceeds of
insurance or by Tenant or other third parties.
3. Interest, amortization or other payments on loans made to Landlord.
4. Depreciation.
5. Leasing commissions.
6. Legal expenses for services, other than those that benefit the Building
tenants generally (e.g., tax disputes and negotiation of leases with
tenants).
7. Renovating or otherwise improving space for occupants of the Building or
vacant space in the Building.
8. Federal income taxes imposed on or measured by the income of Landlord
from the operation of the Building.
9. Any costs covered by manufacturer's warranties and guaranties then in
effect.
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EXHIBIT R
LANDLORD'S INSURANCE
Landlord shall maintain commercial insurance on the Building
throughout the Term in amounts that are commercially reasonable by comparison to
the amounts and coverage carried by landlords for similar buildings in the
county wherein the Building is located as follows:
1. Commercial property insurance - replacement cost (full replacement
value)
2. Statutory workers comp insurance
3. Lose of rental income insurance
4. Auto insurance
5. Commercial general liability insurance
6. Flood if appropriate
7. Earthquake
8. Other insurance as deemed appropriate and commercially reasonable
by Landlord.
Landlord shall have the right to increase the amounts of coverage and
add additional types of coverage provided the amounts and coverage are
commercially reasonable by comparison to the amounts and coverage carried for
similar buildings in the county wherein the Building is located by a
commercially reasonable landlord.
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