Exhibit 10.2
AGREEMENT OF LEASE
Dated as of __________, 2004
between
NORWELL LAND COMPANY, Landlord
and
BIOPHARMA ACQUISITION COMPANY, INC., Tenant
SAFEGUARD SCIENTIFICS, INC., Guarantor
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS......................................................... 1
ARTICLE 2 DESCRIPTION......................................................... 3
ARTICLE 3 TERM................................................................ 4
ARTICLE 4 RENT................................................................ 4
ARTICLE 5 TAXES............................................................... 5
ARTICLE 6 EXPENSES............................................................ 5
ARTICLE 7 LANDLORD'S WORK..................................................... 6
ARTICLE 8 USE; PARKING........................................................ 6
ARTICLE 9 REPAIRS AND MAINTENANCE............................................. 7
ARTICLE 10 ALTERATIONS AND IMPROVEMENTS....................................... 8
ARTICLE 11 SERVICES........................................................... 8
ARTICLE 12 ELECTRICITY, GAS, WATER............................................ 10
ARTICLE 13 INSURANCE; INDEMNITY............................................... 10
ARTICLE 14 DESTRUCTION BY FIRE OR OTHER CASUALTY.............................. 13
ARTICLE 15 CONDEMNATION....................................................... 13
ARTICLE 16 DEFAULT............................................................ 14
ARTICLE 17 ASSIGNMENT AND SUBLETTING.......................................... 17
ARTICLE 18 ENVIRONMENTAL MATTERS; AND QUIET POSSESSION........................ 19
ARTICLE 19 SUBORDINATION...................................................... 20
ARTICLE 20 ACCESS TO LEASED PREMISES.......................................... 20
ARTICLE 21 HOLDING OVER....................................................... 21
ARTICLE 22 NOTICE............................................................. 21
ARTICLE 23 APPLICABLE LAW AND CONSTRUCTION OF PROVISIONS...................... 22
ARTICLE 24 SEVERABILITY....................................................... 22
ARTICLE 25 AUTHORITY.......................................................... 22
ARTICLE 26 RELATIONSHIP OF PARTIES............................................ 22
ARTICLE 27 TRANSFER; RELEASE OF LANDLORD...................................... 23
ARTICLE 28 COUNTERPARTS....................................................... 23
ARTICLE 29 SUCCESSORS......................................................... 23
ARTICLE 30 ENTIRE AGREEMENT................................................... 23
ARTICLE 31 WAIVER OF JURY TRIAL............................................... 23
Schedule A LEASED PREMISES
Schedule B LAND
Schedule C EXPENSES AND TAXES
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AGREEMENT OF LEASE
This LEASE ("Lease") is made and entered into as of _________, 2004,
by and between NORWELL LAND COMPANY, a New York general partnership, having an
address at Xxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Landlord") and
BIOPHARMA ACQUISITION COMPANY, INC., a Delaware corporation, having an address
at 800 The Safeguard Building, 000 Xxxxx Xxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000
("Tenant").
W I T N E S S E T H :
For and in consideration of the covenants herein contained and upon
the terms and conditions herein set forth, intending to be legally bound hereby,
Landlord and Tenant agree as follows:
ARTICLE 1
DEFINITIONS
1.1 As used herein, the following terms shall have the following
meanings:
(a) "Affiliate" means, with respect to a particular party, a Person
or Persons controlling, controlled by or under common control with that
party, as well as any officers, directors and majority-owned entities of
that party and of its other Affiliates. For the purposes of the foregoing,
ownership, directly or indirectly, of 20% or more of the voting stock or
other equity interest shall be deemed to constitute control.
(b) "Associated Companies" means any corporation, partnership,
limited liability company or other entity or combination thereof which
directly or indirectly (a) owns or controls a party, (b) is owned or
controlled by a party, or (c) is under common ownership or control with
said party; the terms "control" and "controlled" meaning ownership of 20%
or more, including ownership by trusts with substantially the same
beneficial interests, of the voting and/or equity rights of such
corporation, partnership, limited liability company or other entity or
combination thereof or the power to direct the management of such
corporation, partnership, limited liability company or other entity or
combination thereof.
(c) "Base Rent" shall have the meaning specified in Section 4.1
herein.
(d) "Base Year" means the twelve (12) month period ended July 31,
2004.
(e) "Building" shall have the meaning specified in Section 2.1
herein.
(f) "Commencement Date" shall have the meaning specified in Section
3.1 herein.
(g) "Environmental Law" means all federal, state and local laws
related to protection of the environment, natural resources, safety or
health or the handling, use, recycle, generation, treatment, storage,
transportation or disposal of Hazardous Materials, and any common law
cause of action relating to the environment, natural resources, safety,
health or the management of or exposure to Hazardous Materials;
(h) "Event of Default" shall have the meaning specified in Section
16.1 herein.
(i) "Expenses" means the actual costs and expenses incurred by
Landlord during the Term in providing the services to be provided by
Landlord under Section 11.1 herein, but excluding Taxes.
(j) "Expense Statement" means a reasonably detailed statement
prepared by Landlord, or at its option, a third party, showing the
calculation of Tenant's Expense Payment.
(k) "Fiscal Year" means a twelve (12) month period ending July 31.
(l) "Hazardous Materials" shall mean any hazardous, dangerous,
explosive, radioactive, infectious or toxic substance, waste or material
that is or becomes regulated by any local governmental authority, the
State in which the Leased Premises are located (including any agency
thereof) or the United States government (including any agency thereof),
including, without limitation, asbestos, asbestos containing materials,
polychlorinated biphenyls (PCBs), mercury, lead and/or lead-based paint,
petroleum and petroleum by-products, chlorofluorocarbons (CFCs),
carcinogens, infectious or radioactive biological or medical wastes, mold,
yeast or fungi, and/or any material or substance that is now or hereafter:
(i) designated as a "hazardous substance" pursuant to Section 311 of the
Federal Water Pollution Control Act (33 U.S.C. Section 1321) or the
regulations promulgated thereunder, (ii) defined as a "hazardous waste"
pursuant to Section 1004 of the Federal Resource Conservation and Recovery
Act (42 U.S.C. Section 6903) or the regulations promulgated thereunder, or
(iii) defined as a "hazardous substance" pursuant to Section 101 or 102 of
the Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. Section 9601 and Section 9602) or the regulations promulgated
thereunder (as each of the foregoing statutes and regulations may be
amended from time to time), and/or any items or substances now or
hereafter identified by or included within any of the foregoing general
classifications.
(m) "Land" shall have the meaning specified in Section 2.1.
(n) "Leased Premises" shall have the meaning specified in Section
2.1.
(o) "Master Tenant" means The P.F. Laboratories, Inc., a New Jersey
corporation, its successors and assigns.
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(p) "Person" means any natural person, corporation, partnership,
proprietorship, association, joint venture, trust or other legal entity.
(q) "Rent" shall have the meaning specified in Section 4.2.
(r) "Structural Portions" shall have the meaning specified in
Section 9.1.
(s) "Tax Statement" means an annual statement given to Tenant by
Landlord, showing the calculation of Tenant's Tax Payment.
(t) "Taxes" means the aggregate of all real estate taxes,
assessments (special or otherwise), and other charges (including business
improvement district charges and payments in lieu of Taxes) of any
authority assessed against all or any part of the Building, the Land and
other improvements thereon. If the method of taxation is changed so that
in lieu of, as an addition to or as a substitute for all or any part of
such real estate taxes, assessments or charges, there is assessed any
other tax, assessment or charge, including one based on rents received,
all such taxes, assessments and charges shall be considered Taxes. Taxes
shall not, however, include any franchise, gift, inheritance, estate,
sales, transfer, general income or profit tax imposed on Landlord (unless
it is considered part of Taxes pursuant to the preceding sentence). If in
any year, including the Base Year there is any abatement, exemption or
discount of Taxes (or any assessment or rate which comprises Taxes), the
abatement, exemption or discount shall not be taken into account, and
Taxes shall be determined as if there was no abatement, exemption or
discount.
(u) "Tenant's Expense Payment" means Tenant's Share of the excess of
Expenses for any Fiscal Year over Expenses for the Base Year.
(v) "Tenant's Share" means six (6) percent.
(w) "Tenant's Tax Payment" means Tenant's Share of the excess of
Taxes for any Fiscal Year over Taxes for the Base Year.
(x) "Tenant's Termination Option" shall have the meaning specified
in Section 3.2.
(y) "Term" shall have the meaning specified in Section 3.1.
ARTICLE 2
DESCRIPTION
2.1 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord the premises (the "Leased Premises"), shown outlined in bold on the
diagram attached hereto as Schedule A, which space is located in the building
(the "Building") located on the land described in Schedule B (the "Land") having
an address at 000 Xxxxx
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Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx, at the Rent and on the other terms of this Lease.
The parties agree that the Leased Premises contains approximately 21,000 square
feet of space, and the Building contains approximately 311,000 square feet of
space, all as shown on Laureate Sheet 1 and Laureate Sheet 2 taken from drawing
PFL-A-1004 manually redated September 28, 2004.
ARTICLE 3
TERM
3.1 The term of this Lease (the "Term") shall commence on__________,
_______2004 (the "Commencement Date") and shall end on ______, 2014, unless this
Lease shall sooner terminate as provided hereinafter.
3.2 Tenant shall have the option (the "Tenant's Termination Option")
upon not less than twelve (12) months' prior written notice to Landlord, to
terminate this Lease, effective on a date specified in such notice.
ARTICLE 4
RENT
4.1 Tenant shall pay to Landlord, in such money of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts, at the place specified in Article 22 hereof for the
giving of notices to Landlord hereunder, or at such other place to such agent as
Landlord may from time to time designate by notice to Tenant, a base rent in the
amount of $150,000.00 per annum (the "Base Rent"). The Base Rent shall be in
addition to and over and above all other payments to be made by Tenant hereunder
and shall be paid in advance, in equal monthly installments of $12,500.00 on the
first day of each calendar month. Base Rent for partial months shall be adjusted
pro-rata.
4.2 All sums, other than Base Rent, payable by Tenant to Landlord
under this Lease are considered additional rent, including without limitation,
Tenant's Tax Payments and Tenant's Expense Payments. Base Rent and all
additional rent are referred to herein as "Rent". Landlord's delay in rendering,
or failure to render, any statement required to be rendered by Landlord for any
Rent for any period shall not waive Landlord's right to render a statement or
collect that Rent for that or any subsequent period. The rendering of an
incorrect statement shall not waive Landlord's right to render a corrected
statement for the period covered by the incorrect statement and collect the
correct amount of Rent.
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ARTICLE 5
TAXES
5.1 If Taxes for any Fiscal Year, all or any part of which falls
within the Term, exceed Taxes for the Base Year, Tenant shall pay to Landlord,
Tenant's Tax Payment within thirty (30) days following Tenant's receipt of a Tax
Statement for that year. At Tenant's request, Landlord shall deliver to Tenant a
copy of the relevant xxxx for Taxes. If Taxes for any Fiscal Year are less than
Taxes for the Base Year, Tenant shall not be entitled to any payment or credit.
5.2 Landlord represents and warrants that Taxes for the Base Year
were $429,409, as set forth in detail on Schedule C hereto, that such Taxes were
paid on or before the date due and that there is no current appeal regarding the
amount of such Taxes.
5.3 If the Commencement Date or the expiration date is a date other
than the first or last day of a Fiscal Year, Tenant's Tax Payment for that
Fiscal Year shall be apportioned according to the number of days of that Fiscal
Year within the Term.
5.4 Tenant shall pay for any taxes assessed on Tenant's personal
property.
ARTICLE 6
EXPENSES
6.1 If Expenses for any Fiscal year, all or any part of which falls
within the Term, exceed Expenses for the Base Year, Tenant shall pay to
Landlord, Tenant's Expense Payment within thirty (30) days following Tenant's
receipt of the Expense Statement for that year. If Expenses for any such year
are less than Expenses for the Base Year, Tenant shall not be entitled to any
payment or credit.
6.2 If the Commencement Date or the expiration date is a date other
than the first or last day of a Fiscal Year, Tenant's Expense Payment for that
Fiscal Year shall be apportioned according to the number of days of that Fiscal
Year within the Term.
6.3 Tenant shall have the right, at Tenant's expense, during normal
business hours, on notice to Landlord, to examine, at Landlord's office within
150 miles of the Building (or at Landlord's option, the office of Landlord's
managing agent or accountant within 150 miles of the Building, Landlord's books
and records which are relevant to the determination of the Expenses for any
Fiscal Year following the Base Year shown on any Expense Statement, provided (a)
the examination is conducted on one or more dates mutually convenient for
Landlord and Tenant and concluded within 365 days following Tenant's receipt of
the Expense Statement in question (if Landlord has provided Tenant with
reasonable access during that period), (b) the person examining Landlord's books
and records is not a person who is paid based in whole or in part on the amount
of any reduction of the Tenant's Expense Payment resulting from the examination
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(and, prior to making an examination both Tenant and the person retained by
Tenant to make the examination shall certify to Landlord that the person making
the examination is not to be paid any sum based in whole or in part on the
reduction of the Tenant's Expense Payment), and (c) any information obtained by
Tenant or the person examining Landlord's books and records shall be kept
confidential, except for disclosure to Tenant's legal counsel and other advisors
and any independent person designated to resolve any dispute between Landlord
and Tenant relating to a Tenant's Expense Payment or as required by any law.
6.4 Landlord represents and warrants that Expenses for the Base
Year, as shown on Schedule C attached hereto, are $50,300. Tenant agrees that
Expenses for the Base Year are not subject to audit.
ARTICLE 7
LANDLORD'S WORK
7.1 Landlord shall not be obligated to do any work to prepare the
Leased Premises for Tenant's occupancy. Tenant accepts the Leased Premises in
"as-is, where-is" condition.
ARTICLE 8
USE; PARKING
8.1 Tenant may use the Leased Premises for the purposes which the
Leased Premises or the facility of Laureate Pharma, L.P. in Princeton, New
Jersey are presently used by Laureate Pharma L.P., namely microparticle,
protein, and monoclonal antibody cell line development, manufacturing, process
development, formulation, purification and filling for use as medicine or
diagnostics, as well as storage and office operations related to the foregoing
activities. Tenant shall not use the facility for (a) penicillin or penicillin-
based products, (b) anabolic steroid hormones, or (c) teratogenic compounds
identified by the U.S. Food and Drug Administration as Pregnancy category X, as
defined in 21 C.F.R. Section 201.57(f)(6)(i)(e), or (d) as identified by
Landlord in writing, has been shown in publicly available animal reproduction
studies, or in investigations or studies or marketing experience to have an
adverse effect on fetus consistent with FDA Pregnancy category X described
above. Tenant further agrees that it shall not use the facility for the
activities set forth in the first sentence of this Section 8.1 to manufacture
(i) laxatives, (ii) iodine-based topical microbicides, (iii) cefditoren pivoxil,
(iv) theophylline, (v) oxycodone, or (vi) morphine. Finally, Tenant shall not
use any part of the Leased Premises as a vivarium.
8.2 Should Tenant desire to introduce new purposes at the Leased
Premises, Tenant shall give not less than sixty (60) days prior written notice
to Landlord and Landlord shall within thirty (30) days of receipt thereof
indicate whether Landlord approves or disapproves of such new purposes, such
approval not to be unreasonably withheld, delayed or conditioned. Landlord shall
base its decision to grant or withhold
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such approval on the following factors: competitive threat, security,
compliance, economic impact, nature of activities in the balance of the site and
any other reasonable factors. If Landlord fails to respond within such thirty
(30) day period, Tenant's proposal shall be deemed approved. Tenant shall not
use the Leased Premises in any manner so as to constitute a nuisance or cause
cancellation of any fire insurance covering the Leased Premises, once Tenant has
knowledge that it would cause such cancellation.
8.3 Landlord shall provide Tenant with twelve (12) parking spaces at
or near the entrance of the Leased Premises. If Tenant hires additional
employees necessitating additional parking spaces, Landlord shall provide up to
an additional eight (8) spaces (a) should they become available on the existing
blacktopped area because of the removal of trailers presently parked thereon, or
(b) should Tenant wish to blacktop, at Tenant's sole cost and expense, land
adjacent to the existing parking areas at a location mutually reasonably
acceptable to Landlord and Tenant.
8.4 Tenant shall comply with all applicable governmental laws,
ordinances, codes, rules and regulations applicable to or regulating Tenant's
manner of use of the Leased Premises. Landlord shall comply with all applicable
governmental laws, ordinances, codes, rules and regulations applicable to or
regulating the condition of the Building and Landlord's manner of use of the
balance of the Building.
ARTICLE 9
REPAIRS AND MAINTENANCE
9.1 Landlord shall, at Landlord's sole cost and expense, perform all
necessary or appropriate maintenance, repairs and replacements to the utility
services and Structural Portions of the Building, except for repairs made
necessary by the misuse or neglect of Tenant or Tenant's agents. As used herein,
the term "Structural Portions" means: the foundation, roof structural supports,
structural steel, load bearing walls, loading docks, exterior walls, exterior
windows, exterior doors, retaining walls and Building systems.
9.2 Tenant shall, at Tenant's sole cost and expense, keep and
maintain the interior portions of the Leased Premises that are not Structural
Portions in good condition and repair and make any other repairs to the Leased
Premises that may be required due to the misuse or neglect of Tenant, so as to
tender the Leased Premises to Landlord at the expiration or earlier termination
of this Lease in substantially the same condition as at the Commencement Date
except for normal wear and tear.
9.3 Except to the extent caused by Landlord's negligence or willful
misconduct, Landlord shall have no liability to Tenant, there shall be no
abatement of the Rent and there shall not be deemed to be any actual or
constructive eviction of Tenant arising from Landlord performing any repairs or
other work to any portion of the Building (including the Leased Premises or the
Building systems). Landlord shall perform such repairs or other work in a manner
which minimizes interference with the conduct of Tenant's business in the Leased
Premises.
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ARTICLE 10
ALTERATIONS AND IMPROVEMENTS
10.1 Except as provided below, Tenant shall make no changes in or to
the Leased Premises of any nature without Landlord's consent, which consent
shall not be unreasonably withheld, delayed or conditioned.
10.2 Subject to giving Landlord ten (10) days' prior written notice
(with reasonable detail of the proposed change) and to the provisions of this
Article 10, Tenant at Tenant's expense may make any changes, which do not
adversely affect the Building systems, utility services or plumbing and
electrical services, in or to the interior of the Leased Premises.
10.3 Trade fixtures and equipment either owned by Tenant or placed
or installed upon or within the Leased Premises by Tenant and all severable
improvements shall remain the personal property of Tenant and, unless otherwise
agreed to by Landlord, shall be removed by Tenant upon the expiration or earlier
termination of this Lease. If Tenant does not remove such personal property at
such time, and there is not a prior written agreement with Landlord, Landlord
shall have the right either to remove such personal property at Tenant's expense
or retain such property in which case title to such property shall automatically
pass to Landlord without further action by the parties . At the expiration of
the Term or earlier termination of this Lease, Tenant shall repair any damage to
the Leased Premises and leave the Leased Premises in substantially the same
condition as the Leased Premises was delivered to Tenant on the Commencement
Date, ordinary wear and tear and damage by casualty excepted.
10.4 Tenant agrees to indemnify, protect, defend and hold harmless
Landlord from and against any and all liability for mechanics' liens or other
liens and claims in connection with any construction by Tenant and shall, within
thirty (30) days after notice from Landlord, bond or discharge any such liens or
claims.
ARTICLE 11
SERVICES
11.1 Landlord shall furnish the following services and utilities
during the Term:
(a) 24 hour security service with access to the Leased Premises as
provided for in Article 20;
(b) Shipping and receiving dock services;
(c) Non-hazardous process waste treatment and trash removal, and
sanitary waste disposal;
(d) Ground cleanup and maintenance (outside only);
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(e) Pest control (outside only);
(f) Fire and alarm services;
(g) Rescue Squad - fire and first aid;
(h) Snow and ice removal; and
(i) Monitoring devices for waste water discharged by Tenant into
Master Tenant's treatment facilities.
11.2 Landlord shall have no obligation to provide to Tenant or the
Leased Premises any services except as specifically set forth in this Lease.
Landlord does not warrant that any Building system or service to be provided by
Landlord, or any other systems or services which Landlord may provide (a) shall
be adequate for Tenant's particular purposes or (b) shall be free from
interruption or reduction. Building systems and services, including access, may
be interrupted or reduced by reason of laws or repairs which are, in Landlord's
judgment, necessary, in which event such interruption or reduction shall not (i)
constitute an actual or constructive eviction, or a disturbance of Tenant's use
of the Leased Premises, (ii) except as set forth in the next sentence, entitle
Tenant to any compensation or abatement of the Rent, (iii) relieve Tenant from
any obligation under this Lease, or (iv) impose any obligation or liability on
Landlord. Notwithstanding the foregoing, if any of the services Landlord is
obligated to supply under Section 11.1 are interrupted, and the interruption
does not result from the negligence or willful misconduct of Tenant, Tenant
shall be entitled to an equitable abatement of Rent. The abatement shall begin
on the fourth consecutive day of the interruption or when Tenant stops using the
Leased Premises because of the interruption, whichever is later, and shall end
when the services are restored. During any such interruption, Landlord shall use
commercially reasonable efforts to restore such services. Landlord shall
maintain the Land, other than the Leased Premises, in a clean, safe and orderly
condition.
11.3 Tenant acknowledges and agrees that Landlord shall have no
obligation to provide, and Tenant, at Tenant's sole cost and expense, shall be
responsible for obtaining the following:
(a) food services;
(b) rental of copier or other office equipment;
(c) telephone, computer and other telecommunications services;
(d) janitorial and cleaning services;
(e) mail services;
(f) window washing;
(g) cooling;
(h) heat;
(i) biohazard and other hazardous waste disposal; and
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(j) boiler maintenance services.
11.4 Landlord and Tenant recognize that the boiler servicing the
Leased Space is in adjoining premises of Landlord, and Landlord and Tenant agree
to cooperate with each other should Tenant wish to move such boiler to the
Leased Space or connect such boiler to Tenant's power source in the Leased
Premises. Any such move or connection shall be at Tenant's sole cost and
expense. Tenant shall have access to such boiler to maintain and service it.
ARTICLE 12
ELECTRICITY, GAS, WATER
12.1 Landlord represents that electricity, gas and water are
presently available at and to the Leased Premises, and that there are separate
meters for the electricity and gas used in the Leased Premises. Landlord shall
have no obligation to provide electricity, gas or water to Tenant or the Leased
Premises. Tenant shall, at Tenant's expense (a) arrange for a separate water
meter to measure the water used in the Leased Premises, (b) provide electricity,
gas and water in the Leased Premises to Landlord, or Landlord's employees,
agents or contractors performing any work in the Leased Premises, (c) maintain
and promptly make all repairs, ordinary and extraordinary, to all components of
the electricity, gas and water systems serving only the Leased Premises,
including all meters, and (d) pay, as and when due, for electricity, gas and
water used in the Leased Premises. Tenant shall not overload the electrical
system serving the Leased Premises. If for any reason separate metering of any
of these services cannot be maintained or achieved, Landlord will allocate costs
based on usage and xxxx these costs to Tenant, and Tenant will pay such xxxx
within thirty (30) days.
ARTICLE 13
INSURANCE; INDEMNITY
13.1 Landlord shall maintain or cause to be maintained fire and
extended coverage insurance in respect of the Building and other improvements on
the Land normally covered by such insurance (except for the property Tenant is
required to cover with insurance under Section 13.2) for the benefit of Landlord
and any other parties Landlord may at any time and from time to time designate,
as their interests may appear, but not for the benefit of Tenant. The fire and
extended coverage insurance will be in the amounts of the full replacement cost
of the Building, provided that such coverage is commercially reasonably
available. Landlord shall also maintain or cause to be maintained commercial
general liability insurance in an amount not less than $5,000,000. Landlord may
also maintain any other forms and types of insurance which Landlord shall deem
reasonable in respect to the Building and Land. Landlord shall have the right to
provide any insurance maintained or caused to be maintained by it under blanket
policies.
13.2 Tenant shall maintain the following insurance: (a)
comprehensive general public liability insurance in respect of the Leased
Premises and the conduct and
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operation of business therein, with Landlord as an additional insured, with a
combined single limit for bodily injury or death and property damage of not less
than $5,000,000, and (b) fire and extended coverage insurance in respect of
Tenant's stock in trade, fixtures, furniture, furnishings, removable floor
coverings, equipment, and all other property of Tenant in the Leased Premises in
any amounts required by any fee mortgagee but not less than 80% of the full
insurable value of the property covered and not less than the amount sufficient
to avoid the effect of the co-insurance provisions of the applicable policy or
policies. Landlord may, after the expiration of the fifth Fiscal Year, require,
on one occasion, that the combined single limit for the comprehensive general
public liability insurance to be maintained by Tenant be increased so long as
the increase is commercially reasonable. Tenant shall deliver to Landlord and to
any additional insured certificates for such fully paid-for policies prior to
the Commencement Date. Tenant shall procure renewals of such insurance from time
to time before the expiration thereof, and Tenant shall deliver to Landlord
certificates therefor before the expiration of any existing policy. All such
policies shall be issued by companies of recognized responsibility licensed to
do business in New Jersey, and all such policies shall contain a provision
whereby the same cannot be cancelled unless Landlord and any additional
insured(s) are given at least 20 days' prior written notice of such
cancellation. Upon request, Tenant will deliver duplicate originals of the
actual policies to Landlord.
13.3 Tenant shall not do, permit or suffer to be done any act,
matter, thing or failure to act in respect of the Leased Premises or use or
occupy the Leased Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company (provided Tenant is on notice of such
objection) whereby the fire insurance or any other insurance then in effect in
respect to the Land and Building or any part thereof shall become void or
suspended or whereby any premiums in respect of insurance maintained by Landlord
shall be higher than those which would normally have been in effect for the
occupancy contemplated under Article 8. If Tenant breaches the provisions of
this Section 13.3, in addition to all other rights and remedies of Landlord
hereunder, Tenant shall (a) indemnify Landlord and the fee mortgagees and hold
Landlord and the fee mortgagees harmless from and against any loss which would
have been covered by insurance which shall have become void or suspended because
of such breach by Tenant and (b) pay to Landlord any and all increases or
premiums on any insurance.
13.4 Tenant shall indemnify and hold harmless Landlord and its
respective directors, officers, agents, employees and invitees from and against
any and all losses, claims, damages and liabilities (including without
limitation, legal fees and other expenses as such fees and expenses are
incurred) that arise out of, or are based upon, any actions, operations or other
events occurring (a) in the Building to the extent caused by the acts, omissions
or negligence of Tenant or any of its subtenants or licensees or its or their
directors, officers, agents, employees, invitees or contractors, and (b) in the
Leased Premises to the extent caused by the acts, omissions or negligence of a
third party or force majeure.
13.5 Landlord shall indemnify and hold harmless Tenant, its
directors, officers, agents, employees and invitees from and against any and all
losses, claims,
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damages and liabilities (including, without limitation, legal fees and other
expenses as such fees and expenses are incurred), that arise out of, or are
based upon, any actions, operations or other events occurring (a) in the
Building to the extent caused by the acts, omissions or negligence of Landlord,
and (b) in the Building (except for the Leased Premises) to the extent caused by
the acts, omissions or negligence of a third party or force majeure.
13.6 Each party waives any right of recovery against the other party
and releases all claims arising in any manner in its (the "Injured Party's")
favor and against the other party for any loss or damage to the Injured Party's
property (real or personal) located within or constituting a part of or all of
the Building. The parties intend that such waiver and release apply to their
respective insurers and act to waive any rights of subrogation that such
insurers may have against the other party. This waiver and release apply to the
extent the loss or damage is (1) covered by the Injured Party's insurance or (2)
would be covered by the insurance the Injured Party is required to carry under
this Lease, whichever is greater. The waiver and release also apply to each
party's directors, officers, employees, shareholders and agents.
13.7 Notwithstanding anything to the contrary in this Lease, all
indemnity obligations of Landlord and Tenant arising under this Lease, and all
claims, demands, damages and losses assertable by Landlord and Tenant against
the other in any suit or cause of action arising out of or relating to this
Lease, the Leased Premises, the Building or the property on which the Building
is located, or the use and occupancy thereof, are limited as follows:
(a) by the releases and waivers expressed herein, including, without
limitation, the mutual releases and waivers of rights set forth in Section 13.6;
(b) all claims for indemnification and other recoveries shall be
limited to direct, proximately caused damages and exclude all consequential and
indirect damages, including, but not limited to, business loss or interruption,
suffered by the party asserting the claim or seeking the recovery; and
(c) in the event that Landlord and Tenant (or the persons for whom
they are liable as expressly set forth herein) are determined to be
contributorily responsible for the indemnified injury or loss, each indemnitor's
obligation is limited to the indemnitor's equitable share of the losses, costs
or expenses to be indemnified against based on the relative culpability of each
indemnifying person whose negligence or willful acts or omissions contributed to
the injury or loss.
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ARTICLE 14
DESTRUCTION BY FIRE OR OTHER CASUALTY
14.1 If the Leased Premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give immediate notice thereof to Landlord
and this Lease shall continue in full force and effect except as hereinafter set
forth.
14.2 If the Leased Premises are damaged or rendered unusable by fire
or other casualty, the damages thereto shall be repaired by Landlord at
Landlord's expense and, unless caused by the negligence or willful misconduct of
Tenant, with an abatement of rent until the Leased Premises become usable,
provided, however, that if the cost of restoration of the Leased Premises shall
exceed fifty (50) percent of the replacement value of the Leased Premises and
the damage occurs within three (3) years of the expiration of the Term, then
either Landlord or Tenant shall have the right to terminate this Lease within
ninety (90) days of such casualty. If neither party terminates this Lease within
ninety (90) days of such casualty, Landlord shall repair the damages to the
Leased Premises at Landlord's expense.
14.3 If at any time during the Term the Building is damaged or
rendered unusable by fire or other casualty, and if the Master Tenant ceases all
of its manufacturing activities at the Building as a result of such fire or
other casualty, Landlord shall have the right to terminate this Lease on ninety
(90) days written notice to Tenant if the cost of restoration of the Building
shall exceed fifty (50) percent of the replacement value of the Building. If
Landlord does not have or does not exercise such right to terminate, the damages
to the Leased Premises shall be repaired (with appropriate work to whatever
portion of the Building is to remain so that such portion shall have a
reasonable exterior appearance) by Landlord at Landlord's expense and, unless
caused by the negligence or willful misconduct of Tenant, if the Leased Premises
has been damaged, with an equitable abatement of rent until the Leased Premises
becomes usable.
14.4 Upon any termination of this Lease pursuant to this Article,
Tenant shall forthwith quit, surrender and vacate the Leased Premises without
prejudice however, to Landlord's rights and remedies against Tenant under the
Lease provisions in effect prior to such termination, and any Rent owing shall
be paid up to such date of termination. The Rent shall be proportionately
adjusted to the time of the casualty and thenceforth shall cease.
ARTICLE 15
CONDEMNATION
15.1 If as the result of a taking by condemnation or similar legal
action of an authority all of the Leased Premises, or so much thereof as renders
the Leased Premises wholly unusable by Tenant, is taken, (b) a portion of the
Building or the Land is taken, resulting in Tenant no longer having reasonable
access to or use of the Leased Premises, (c) all or substantially all of the
Building or the Land is taken, or (d) a portion
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of the Building is taken resulting in Landlord's determination to demolish the
Building, or (e) a portion of the Building is taken resulting in Landlord's
determination that it is not commercially feasible for Landlord to continue
operating at the Building, the Term shall expire on the date of the vesting of
title. In that event, the Rent shall be apportioned as of the date of
termination and any Rent paid by Tenant to Landlord for any period after that
date shall be promptly refunded by Landlord to Tenant.
15.2 In the event of any such taking of all or any part of the
Leased Premises, the Building or the Land, Landlord shall be entitled to receive
the entire award. Tenant shall have no claim against Landlord or any authority
for the value of the unexpired portion of the award. Tenant may, however, at
Tenant's expense, make a separate claim to the appropriate authority for the
value of Tenant's property and for moving expenses, provided such claim and
award, if any, do not result in a reduction of the award which would otherwise
be paid to Landlord.
15.3 If a taking does not result in the termination of this Lease
(a) Landlord shall, at Landlord's expense, as soon as practicable, restore that
part of the Leased Premises, the Building or the Land not taken, so that the
Leased Premises are usable, and (b) from and after the date of the vesting of
title, the Rent shall be reduced in the same proportion as the area of the
Leased Premises, if any, which was taken.
ARTICLE 16
DEFAULT
16.1 Each of the following shall constitute an "Event of Default" by
Tenant under this Lease:
(a) Tenant shall fail to timely pay Rent and shall fail to rectify
such non-payment within ten (10) days after Tenant's receipt of
notice thereof from Landlord;
(b) Tenant shall make an assignment for the benefit of creditors;
(c) Tenant shall file a petition or answer seeking reorganization or
arrangement under any of the laws of the United States relating to
bankruptcy or any other applicable statute and such petition is not
discharged within sixty (60) days thereafter;
(d) An attachment or execution shall be levied upon Tenant's
property or interest under this Lease, and shall not be satisfied or
released within sixty (60) days thereafter;
(e) An involuntary petition in bankruptcy shall be filed against
Tenant, or a receiver or trustee for all or any part of the property
of Tenant shall be appointed by any court, and such petition shall
not be withdrawn,
14
dismissed or discharged, or such receiver or trustee removed, within
ninety (90) days from the filing or appointment thereof; or
(f) Tenant shall default in the performance or observance of any
other covenant, agreement, obligation, provision or condition to be
kept or performed by Tenant under the provisions of this Lease and
such default shall continue for thirty (30) days after Tenant's
receipt of notice thereof from Landlord; provided, however, that if
the nature of such default is such that more than thirty (30) days
are reasonably required for its cure, then Tenant shall not be
deemed to be in default if Tenant commences such cure within said
thirty (30) day period and thereafter proceeds, in good faith, with
such cure to completion.
16.2 If one or more of the foregoing Events of Default shall occur,
then Landlord may, at Landlord's option, provide Tenant with ten (10) days
notice of termination and enter the Leased Premises and again have, repossess
and enjoy the same as if this Lease had not been made, and thereupon this Lease
shall cease, terminate and be utterly void, without prejudice, however, to the
right of Landlord to recover from Tenant all Rent due up to the time of entry.
16.3 If this Lease is terminated pursuant to Section 16.2 or
Landlord re-enters or obtains possession of the Leased Premises by summary
proceedings or any other legal action (which Landlord may do without further
notice and without liability or obligation to Tenant or any occupant of the
Leased Premises), all of the following provisions of this Section shall apply
(in addition to any other applicable provisions of this Lease):
(a) Tenant (and all other occupants) shall vacate and surrender to
Landlord the Leased Premises in accordance with this Lease.
(b) Landlord, at Landlord's option, may (i) relet the Leased
Premises, or any portion of the Leased Premises, from time to time, in the name
of Landlord, Tenant or otherwise, as determined by Landlord, to any person and
on any terms, but Landlord shall have no obligation to relet the Leased
Premises, or any portion of the Leased Premises, or to collect any rent (and the
failure to relet the Leased Premises, or any portion of the Leased Premises, or
to collect any rent shall not impose any liability or obligation on Landlord or
relieve Tenant of any obligation or liability under this Lease), and (ii) make
any changes to the Leased Premises as Landlord, in Landlord's judgment,
considers advisable or necessary in connection with a reletting, without
imposing any liability or obligation on Landlord or relieving Tenant of any
obligation or liability under this Lease.
(c) Tenant shall pay Landlord all Rent payable to the date on which
this Lease is terminated or Landlord re-enters or obtains possession of the
Leased Premises.
(d) Tenant shall also pay to Landlord, as damages, any deficiency
between (i) the aggregate Rent for the period which otherwise would have
constituted the
15
unexpired portion of the Term (conclusively presuming the additional rent for
each year thereof to be the same as was payable for the year immediately
preceding the termination, re-entry or obtaining of possession) and any expenses
incurred by Landlord in connection with the termination, reentry or obtaining of
possession, and the reletting of the Leased Premises, including all repossession
costs, brokerage commissions, reasonable attorneys' fees and disbursements,
alteration costs and other expenses of preparing the Leased Premises for
reletting and (ii) the rents, if any, applicable to that period collected under
any reletting of any portion of the Leased Premises. Tenant shall pay any
deficiency in monthly installments on the days specified in this Lease for
payment of installments of the Base Rent, and Landlord shall be entitled to
recover from Tenant each monthly deficiency as the same arises. No suit to
collect the deficiency for any month shall prejudice Landlord's right to collect
the deficiency for any subsequent month. Tenant shall not be entitled to any
rents payable (whether or not collected) under any reletting, whether or not
those rents exceed the Rent.
(e) Landlord may recover from Tenant, and Tenant shall pay Landlord,
on request, in lieu of any further deficiency pursuant to paragraph (d) of this
Section (as liquidated damages) the amount by which (i) the unpaid Rent for the
period which otherwise would have constituted the unexpired portion of the Term
(conclusively presuming the additional rent for each year thereof to be the same
as was payable for the year immediately preceding the termination, re-entry or
obtaining of possession) exceeds (ii) the then fair and reasonable rental value
of the Leased Premises, including the additional rent for the same period, both
discounted to present value at the annual rate of interest publicly announced by
JPMorgan Chase Bank, New York, New York (or any successor thereto) as its "base
rate" on the date of the Event of Default in question, or such other term as may
be used by JPMorgan Chase Bank from time to time for that rate (and if no longer
publicly announced, then a similar rate selected by Landlord). If, before
presentation of proof of liquidated damages, Landlord relets the Leased Premises
or any portion of the Leased Premises for any period pursuant to a bona fide
lease with an unrelated third party, the net rents payable in connection with
the reletting shall be considered to be the fair and reasonable rental value for
the Leased Premises or the portion of the Leased Premises relet during the term
of the reletting. If Landlord relets the Leased Premises, or any portion of the
Leased Premises, together with other space in the Building, the rents collected
under the reletting and the expenses of the reletting shall be equitably
apportioned for the purposes of this Section.
(f) Nothing contained in this Lease shall be considered to limit or
preclude the recovery by Landlord from Tenant of the maximum amount allowed to
be obtained as damages or otherwise by any Law, except as provided in Section
16.6 below.
16.4 If Tenant fails to pay, when due, for any repairs or
improvements to the Leased Premises made by Tenant (to the extent that such
repairs were the responsibility of Tenant hereunder), or if Tenant fails to pay
any of the charges that Tenant is obligated to pay by the terms of this Lease,
or if Tenant fails to make repairs that are Tenant's responsibility as herein
provided, then in addition to all other remedies provided by this Lease,
Landlord may, but is not obligated to, upon Tenant's failure to
16
cure such default within thirty (30) days after Tenant's receipt of notice from
Landlord that specifies the particular Event of Default complained of, pay any
such charges and make such repairs, and the amount or amounts so paid or
expended therefore shall become due and payable immediately upon demand by
Landlord; and if Tenant shall not repay any such amount or amounts upon demand,
said amount or amounts shall be added to, and become a part of, the Rent to be
paid by Tenant.
16.5 The various rights and remedies given to or reserved by
Landlord by this Lease, or allowed by law, shall be cumulative, and no delay or
omission to exercise any of their rights shall be construed as a waiver of any
default or Event of Default or acquiescence therein. No waiver by Landlord of
any provision of this Lease shall be deemed for any purpose to be a waiver of
any breach of any other provision hereof, nor of any continuing or subsequent
breach of the same provision.
16.6 Notwithstanding anything to the contrary in this Lease,
Landlord shall use commercially reasonable efforts to mitigate Landlord's
damages (including, but not limited to, reletting the Leased Premises) following
the occurrence of an Event of Default, provided that Landlord shall not be
obligated to relet the Leased Premises prior to reletting any other available
comparable space in the Building or to relet the Leased Premises for less than
its then fair market rental value.
16.7 UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE ENTITLED TO
INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS) ARISING IN CONNECTION WITH THE DEFAULT OR BREACH OF
ANY WARRANTIES OR OBLIGATION OF THE OTHER PARTY TO THIS TRANSACTION, OR ANY
RELATED TRANSACTIONS, OR ANY DOCUMENTS OR SCHEDULES RELATED THERETO.
ARTICLE 17
ASSIGNMENT AND SUBLETTING
17.1 Except as provided in this Article, Tenant shall not, without
Landlord's consent (a) assign (by operation of law or otherwise), encumber or
otherwise transfer this Lease or any interest in this Lease, or (b) sublet or
permit others to occupy all or any part of the Leased Premises. The transfer,
redemption or issuance (by one or more transactions, including by way of merger
or consolidation) of ownership interests of Tenant, or any direct or indirect
parent of Tenant which results in fifty-one (51) percent or more of the
ownership interests of that person being held by persons who did not hold 51%
ownership interests on the Commencement Date, shall be considered an assignment
of this Lease which requires Landlord's consent. Landlord's consent to an
assignment, subletting or occupancy shall not relieve Tenant from any liability
under this Lease or from obtaining Landlord's consent to any further assignment,
subletting or occupancy.
17.2 If Tenant desires to sublet all or part of the Leased Premises
or assign this Lease, Tenant shall give Landlord notice of Tenant's desire,
accompanied by (i) a
17
reasonably detailed description of the proposed assignee or subtenant and its
principals, the nature of its business and its proposed use of the Leased
Premises, and (ii) current financial information with respect to the proposed
assignee or subtenant, including its most recent financial statements (and
Tenant shall promptly deliver to Landlord such additional information as
Landlord reasonably requests). Landlord's consent to the proposed assignment or
sublease shall not be unreasonably withheld, conditioned or delayed, if:
(a) there is then no uncured Event of Default by Tenant under this
Lease;
(b) the proposed assignee or subtenant shall use the Leased Premises
for the permitted uses under this Lease, and for no other purpose;
(c) the proposed assignee or subtenant is not engaged in the
research, development, manufacturing or sale of products for the treatment
of pain, provided that such products compete with products being
researched, developed, manufactured or sold by Master Tenant or an
Affiliate of Master Tenant;
(d) if so requested by Landlord, the proposed assignee or subtenant
agrees in writing to comply with the terms of that certain Employee
Leasing Agreement dated as of the date hereof between The P.F.
Laboratories, Inc. and Tenant and that certain collective bargaining
agreement between The P.F. Laboratories, Inc. and Local 825, International
Chemical Workers Union Council of the United Food & Commercial Workers
International Union (the "CBA"); and
(e) Tenant reimburses Landlord for any reasonable costs that
Landlord incurs in connection with the assignment or sublease, including
reasonable attorneys' fees and disbursements.
If approved by Landlord, Tenant shall provide a copy of the
assignment or sublease, as applicable, to Landlord, promptly after the same is
executed.
17.3 Tenant shall be responsible for any act or omission of any
assignee or subtenant (or anyone claiming through any assignee or subtenant)
which violates this Lease, and that violation shall be considered a violation by
Tenant.
17.4 Tenant shall pay Landlord, within 15 days following payment to
Tenant, 100% of (a) all sums and other consideration in connection with an
assignment, after Tenant recovers therefrom all reasonable costs incurred by
Tenant in connection with that assignment which have been paid or are then due
and payable and (b) the excess, if any, of the rents, additional charges or
other consideration in connection with a sublease over the Rent allocable to the
subleased premises (which Rent shall be allocated equally throughout the Leased
Premises) accruing during the term of that sublease after Tenant recovers
therefrom all reasonable costs incurred by Tenant in connection with that
sublease which have been paid or are then due and payable.
18
17.5 Tenant may, without Landlord's consent and without complying
with Section 17.1, assign this Lease or sublet all or any part of the Leased
Premises to any Affiliate of Tenant, provided that (a) the conditions in
paragraphs (a) through (d) of Section 17.2 are complied with and, (b) Landlord
is given an executed original of all related documents, including an original
assignment (with an assumption signed by the assignee) or sublease, and proof
reasonably satisfactory to Landlord of the requisite control.
ARTICLE 18
ENVIRONMENTAL MATTERS
18.1 Tenant shall conduct its operations and other activities at the
Leased Permises in compliance with all applicable laws, including Environmental
Laws. Tenant further agrees to use, handle, generate, store and dispose of
Hazardous Materials in compliance with Environmental Laws.
18.2 Tenant shall indemnify, protect, defend and save Landlord, its
directors, officers, agents, employees and invitees harmless from and against
any and all claims, liability, damages, fines, penalties, losses, costs and
expenses (including reasonable attorneys' fees) related to, arising out of, or
directly or indirectly attributable to, violations of or noncompliance with or
obligations under Environmental Laws caused by or due to the actions, omissions
or obligations of the Tenant, its directors, officers, agents, employees and
invitees or the presence, use, generation, storage, release or disposal of
Hazardous Materials in, on, under or about the Leased Premises, but only if and
to the extent that such Hazardous Materials were brought to or generated at the
Leased Premises by Tenant, its directors, officers, agents, employees and
invitees during the Term or otherwise used, stored, released or disposed of by
the Tenant, its directors, officers, agents, employees and invitees during the
Term. Tenant shall upon execution hereof, and within ten days of any new
materials being introduced, furnish Landlord with a complete set of "Material
Safety Data Sheets" for all materials used in the Leased Premises.
18.3 To the extent solely arising or occurring on or after the
Commencement Date, Landlord shall indemnify, protect, defend and save Tenant,
its directors, officers, agents, employees and invitees harmless from and
against any and all claims, liability, damages, fines, penalties, losses, costs
and expenses (including reasonable attorneys' fees) related to, arising out of,
or directly or indirectly attributable to, violations of or noncompliance with
or obligations under Environmental Laws caused by or due to the actions,
omissions or obligations of the Landlord, its directors, officers, agents,
employees and invitees or the presence, use, generation, storage, release or
disposal of Hazardous Materials in, on, under or about the Building or the Land,
except to the extent that such Hazardous Materials were brought to or generated
at the Building or the Land by Tenant, its directors, officers, agents,
employees and invitees during the Term or otherwise used, stored, released or
disposed of by Tenant its directors, officers, agents, employees and invitees
during the Term. This section shall not apply to any
19
environmental conditions existing in, on, under or about the Building or the
Land on or before the Commencement Date.
18.4 Tenant agrees to cooperate on any and all Hazardous Materials
claims brought against the Master Tenant or the Landlord, and the Master Tenant
or the Landlord, as the case may be, shall prevail in the event that any dispute
with respect thereto occurs.
ARTICLE 19
SUBORDINATION
19.1 Landlord represents and warrants that there are no mortgages
encumbering the Land or the Building, and Tenant agrees that this Lease shall be
subject and subordinate to any first mortgage placed on the fee by Landlord and
to all ground or underlying leases which may now or hereafter affect such leases
or the real property of which the Leased Premises are a part and to all
renewals, modifications, consolidations, replacements and extensions of any such
underlying leases and mortgages provided that Tenant receives a non-disturbance
agreement in commercially reasonable form and substance from the holder of any
such future mortgage or underlying lease. Tenant acknowledges that it has
received from Landlord a copy of Commitment for Title Insurance No. S040569
dated July 23, 2004, issued by Commonwealth Land Title Insurance Company.
Landlord represents and warrants that it has paid third quarter taxes for 2004,
even though such taxes are shown as unpaid on the aforesaid title commitment.
ARTICLE 20
ACCESS TO LEASED PREMISES
20.1 Landlord shall have the right of access to the Leased Premises
(i) for the limited purpose of examination and inspection, making repairs,
alterations or improvements to the extent required or permitted herein, or
exercising any of the rights of Landlord under this Lease and (ii) to show it to
prospective purchasers and mortgagees or to prospective tenants. Any such visit
by Landlord shall be made at reasonable times during Tenant's normal business
hours upon reasonable prior notice to Tenant. Any such visit shall be conducted
in a manner as to minimize disruptions to the operation of the Tenant.
20.2 Tenant shall have the right of access to the Land and the
portion of the Building not constituting the Leased Premises for the limited
purpose of making repairs or improvements to any mechanical or other physical
systems at the Land and the Building that are used, in whole or in part, by the
Tenant in the conduct of its activities at the Leased Premises. Tenant agrees
that all such access may be supervised by Landlord, with the cost of such
supervision to be paid by Tenant, and that any CBA work must be done by leased
or CBA employees.
20
ARTICLE 21
HOLDING OVER
21.1 If Tenant shall, after the expiration of the Term of this Lease
or any renewal or extension thereof, continue to occupy or remain in the Leased
Premises without a written agreement having been entered into, any such holding
over shall be deemed at sufferance but otherwise subject to all of the terms,
conditions and covenants of this Lease to the extent they remain applicable,
except that the Base Rent shall be increased to $25,000 per month for the first
three (3) months, and $37,500 per month thereafter.
ARTICLE 22
NOTICE
22.1 Whenever this Lease calls for any request, notice, consent,
approval or demand to be given or served on either party to this Lease, such
request, notice, consent, approval or demand shall be in writing, shall
specifically reference the date of this Lease, the name of the original
Landlord, the name of the current Landlord and the address of the Leased
Premises and shall be delivered (a) personally or (b) by "next day" courier
service, addressed as follows:
To Landlord: Norwell Land Company
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: General Counsel
with copy to: H. Xxxxxx Xxxxxxxx, Xx.
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
To Tenant: Biopharma Acquisition Company, Inc.
000 Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxx
with copy to: Safeguard Scientifics, Inc.
800 The Safeguard Building
000 Xxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxx
21
or elsewhere, as the respective parties may from time to time designate in
writing. All notices shall be deemed given when received.
ARTICLE 23
APPLICABLE LAW AND CONSTRUCTION OF PROVISIONS
23.1 This Lease shall be governed by and construed under the laws of
the State of New Jersey. The captions used in this Lease are for convenience
only and do not in any way modify, limit or amplify the terms and provisions
hereof. The language in all parts of this Lease shall in all cases be construed
according to its fair meaning and not strictly for or against either Landlord or
Tenant, and the construction of this Lease and any of its various provisions
shall be unaffected by any argument or claim, whether or not justified, that it
has been prepared, wholly or in substantial part, by or on behalf of either
Landlord or Tenant.
ARTICLE 24
SEVERABILITY
24.1 Any provision of this Lease that proves to be invalid, void or
illegal shall in no way affect, impair, or invalidate any other provision(s)
hereof, and such other provision(s) shall remain in full force and effect.
ARTICLE 25
AUTHORITY
25.1 Each individual executing this Lease hereby represents and
warrants that (a) the entity on whose behalf such individual is executing this
Lease is duly formed and validly existing, (b) the entity on whose behalf such
individual is executing this Lease has full right and authority to enter into
this Lease, and (c) such individual is duly authorized to execute this Lease on
behalf of such entity.
ARTICLE 26
RELATIONSHIP OF PARTIES
26.1 The relationship between Landlord and Tenant created hereunder
shall be that of Landlord and Tenant and nothing shall be construed as creating
any joint venture or partnership.
22
ARTICLE 27
TRANSFER; RELEASE OF LANDLORD
27.1 In the event of a transfer or lease of the Building the
transferor or Landlord shall be and hereby is relieved of all obligations and
liabilities of Landlord under this Lease accruing after the effective date of
the transfer or lease, provided the transferee or tenant has assumed Landlord's
obligations and liabilities under this Lease effective from and after the
effective date of the transfer or lease.
ARTICLE 28
COUNTERPARTS
28.1 This Lease may be executed in multiple counterparts, all of
which shall constitute one and the same Lease.
ARTICLE 29
SUCCESSORS
29.1 This Lease shall bind and inure to the benefit of the parties
hereto, their respective successors, permitted assigns, heirs, executors and
administrators, subject to the provisions herein.
ARTICLE 30
ENTIRE AGREEMENT
30.1 This Lease contains the entire agreement between the parties
hereto relating to the Leased Premises, and supersedes all prior agreements, and
shall not be modified in any manner except by an instrument in writing executed
by the parties or their respective successors in interest.
ARTICLE 31
WAIVER OF JURY TRIAL
31.1 LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER AGAINST THE OTHER ON ANY MATTER
ARISING OUT OF THIS LEASE.
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ARTICLE 32
QUIET POSSESSION
32.1 Landlord warrants and agrees that Tenant, on paying the Rent
and on keeping, observing, and performing all other terms, conditions, and
provisions herein contained on the part of Tenant to be kept, observed, and
performed, shall, during the Term peaceably and quietly have, hold and enjoy the
exclusive use of the Leased Premises without hindrance, disturbance or ejectment
from anyone.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
TENANT:
BIOPHARMA ACQUISITION
COMPANY, INC.
By: ________________________________________
Name:
Title:
LANDLORD:
NORWELL LAND COMPANY
By: Connecticut Avenue Realty Co., Inc.,
its managing general partner
By: ________________________________________
Name:
Title:
24
