FIRST AMENDMENT TO LEASE AGREEMENT
Exhibit
10.2
FIRST
AMENDMENT TO LEASE AGREEMENT
This
FIRST
AMENDMENT TO LEASE AGREEMENT
(this
“First Amendment”) made this 2nd
day of
April , 2007 ("Execution Date"), by and between XX
XXXXX MANOR CORP.,
a
Delaware corporation (hereinafter called “Landlord”), and DISCOVERY
LABORATORIES, INC., a
Delaware corporation (hereinafter called “Tenant”).
WHEREAS,
Landlord's predecessor in interest, Stone Manor Corporate Center, L.P. ("SMCC")
and Tenant entered into that certain Office Lease Agreement dated May 26, 2004
("Original Lease"), as amended by that certain Addendum to Office Lease
Agreement between SMCC and Tenant dated of even date as the Original Lease
("Addendum"), as further amended by that certain Commencement Date Agreement
between SMCC and Tenant dated January 19, 2005 ("Commencement Date Agreement",
and together with the Original Lease and the Addendum, the "Lease"), under
which
Landlord demised to Tenant the premises consisting of approximately 39,594
rentable square feet of office space on the first and second floors (the
“Premises") in the building commonly known as Stone Manor Corporate Center,
0000
Xxxxx Xxxx, in Doyleston and Warrington Townships, Pennsylvania (the
“Building"), all as more particularly set forth in the Lease, for a Lease Term
expiring February 28, 2010.
WHEREAS,
Tenant
desires to undertake certain improvements to the Premises, Building and
surrounding area, which improvements include (i) renovation of the Premises
to
include a laboratory; (ii) the installation of wiring, plumbing, duct work
and
related appurtenances in the Building; (iii) the installation of an emergency
power generator near the Building; and (iv) other related work, all as set
forth
on the plans and specifications prepared by Trident Engineering, Inc., attached
to the Work Letter as Schedule
1
(the
"Plans"), approved by the Landlord, and as the same may be revised with
Landlord's prior written approval (the "Tenant's Work").
WHEREAS,
Landlord has approved the Tenant's Work, subject to (i) Tenant's covenant to
pay
for the costs associated with the modifications to the HVAC in the Premises
required to make such HVAC sufficient for the increased ventilation needs
created by Tenant's laboratory and generator; and (ii) the terms of this First
Amendment, and the Work Letter and Generator License Agreement attached hereto
as Exhibit
A and
Exhibit
B,
respectively, and incorporated herein by reference and made a part
hereof
WHEREAS,
Landlord and Tenant desire to extend the Lease Term and to amend certain other
provisions of the Lease, as more particularly set forth in this First
Amendment.
NOW,
THEREFORE,
in
consideration of the mutual agreements herein set forth, the mutual agreements
set forth in the Lease, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant have
agreed, and hereby agree that the Lease is amended as follows:
| 1. |
Recitals
Incorporated.
The Recitals set forth above are hereby incorporated by this reference
and
shall be deemed terms and provisions hereof with the same force and
effect
as if fully set forth in this Section 1.
|
| 2. |
Defined
Terms.
Capitalized terms which are not otherwise defined herein shall be
deemed
to have the same meanings herein as are ascribed to such terms in
the
Lease. All references herein to “Lease” shall be deemed to be references
to the Lease, as amended hereby.
|
| 3. |
Term.
The Lease Term is hereby extended for a period of thirty-six (36)
months
commencing on March 1, 2010, and expiring on February 28, 2013 (the
"Extension Term").
|
| 4. |
Base
Rental.
During the Extension Term, Base Rental due under the Lease shall
be
increased to the amounts set forth in the following schedule, which
shall
be payable in accordance with the provisions of the
Lease:
|
|
Period
|
Base
Rental
(annual)
|
Monthly
Installments of Base Rental
|
|
March
1, 2010 - February 28, 2011
|
$979,951.56
|
$81,662.63
|
|
March
1, 2011 - February 29, 2012
|
$999,748.56
|
$83,312.38
|
|
March
1, 2012 - February 28, 2013
|
$1,019,545.56
|
$84,962.13
|
|
During
the remainder of the Lease Term and during the Extension Term, Tenant
shall pay, as rent, the amounts and charges provided in Section 6
of the
Original Lease with respect to Tenant's Building Proportionate Share
and
Tenant's Site Proportionate Share, as the case may be, of the Operating
Expenses, together with all other amounts and charges payable by
Tenant to
Landlord under the Lease.
|
| 5. |
Security
Deposit.
Subject to the provisions of Section 6 of the Addendum, Landlord
shall
continue to hold during the Extension Term the security deposit consisting
of $600,000.00, in the form of a letter of credit dated September
24, 2004
and amended on December 29, 2005, issued by Wachovia Bank (the "Letter
of
Credit"). Section 6(f) of the Addendum is hereby deleted in its entirety
and the following is substituted in lieu thereof: "As of March 1,
2010,
provided that no Event of Default has occurred and is continuing,
and
there is no existing circumstance with which the passage of time
or the
giving of notice, or both, would give rise to an Event of Default,
Tenant
may reduce the Letter of Credit to the amount of $400,000.00 for
the
remainder of the Extension Term by (i) delivering to Landlord either
cash
or a substitute letter of credit in the reduced amount; (ii) modifying
the
Letter of Credit to the reduced amount without changing any of the
other
provisions thereof, including the Landlord's ability to draw on the
Letter
of Credit, if necessary; or (iii) otherwise reducing the Letter of
Credit
in a manner mutually acceptable to both Landlord and
Tenant."
|
| 6. |
Condition
of the Premises.
Tenant is in possession of the Premises and accepts the same "as
is"
without any representations or warranties of any kind, subject to
conditions that are the responsibility of the Landlord to repair
or
maintain pursuant to the express provisions of the Lease. No agreement
of
Landlord to alter, remodel, redecorate, repair or improve the Premises,
or
the Building, or to provide Tenant with any credit or allowance for
the
same, and no representation regarding the condition of the Premises
or the
Building have been made by or on behalf of Landlord or relied upon
by
Tenant, except as otherwise expressly provided with respect to the
Tenant's Work described in Section 7 below.
|
| 7. |
Tenant's
Work.
Tenant shall construct those certain improvements to the Premises
and duct
work and generator installation in the Building, described as the
Tenant's
Work in the Work Letter, Exhibit
A,
which is attached hereto and made a part hereof, in accordance with
the
Plans (attached to the Work Letter), and in a good and workmanlike
manner.
The Tenant's Work shall be completed at Tenant's cost and expense,
subject
to Landlord's Contribution (as defined in the Work Letter). In accordance
with the provisions of Section 11.4 of the Original Lease, Tenant
shall be
required, at its cost and expense, to: (i) remove, upon the expiration
or
earlier termination of the Lease: (A) the laboratory fixtures and
equipment and any exhaust duct work for the operation of the laboratories
installed as part of the Tenant's Work, including the fans from the
roof
of the Building, all hoods, and exhaust venting; (B) the generator
and
related appurtenances installed as part of the Tenant's Work; and
(C)
plumbing and electrical fixtures and other equipment (which is not
located
within the walls or under the floor of the Premises or the Building
and is
not common to a general office build-out), if any, installed within
the
Premises or the Building as part of the Tenant's Work; (ii) restore
the
Premises and the Building to broom-clean condition, reasonable wear
and
tear excepted; and (iii) repair any damage to the Premises or the
Building
resulting from such removal and restoration. Notwithstanding the
foregoing, Tenant shall not be required to demolish or restore: (1)
any
plumbing fixtures or equipment within the walls of the Premises or
the
Building installed or constructed as part of the Tenant's Work; and
(2)
any electrical fixtures or equipment installed as part of the Tenant's
Work which are considered common to a standard office build-out.
If Tenant
fails to remove any of the Tenant's Work referenced in subsections
(A),
(B) and (C) above or restore the Premises and/or Building to the
condition
required or repair any damage, then Landlord may perform such actions,
and
Tenant shall reimburse Landlord for any and all costs incurred by
Landlord
in connection therewith. Any other improvements to the Premises shall
be
made by Tenant at the sole cost and expense of
Tenant.
|
| 8. |
Termination
of Termination Option.
Upon execution of this First Amendment, Section 3 of the Addendum,
Termination Option, shall become null and void and of no further
force and
effect.
|
2
| 9. |
Right
of First Offer.
During the remainder of the Lease Term and during the Extension Term,
subject to any existing rights of other tenants, and provided that
Tenant
is not then in default under the Lease, Tenant shall be granted a
right of
first offer, on the terms and conditions set forth in Section 5 of
the
Addendum, on any space that comes available within the Building,
or any
buildings in Stone Manor Corporate Center currently owned or later
acquired, controlled or owned by Landlord, or any affiliate of or
other
company related to Landlord.
|
| 10. |
Extension
Option.
The Extension Option, as set forth in Section 8 of the Addendum,
shall be
modified and amended such that Tenant shall only be entitled to one
(1)
additional term of three (3) years, commencing upon the expiration
of the
Extension Term (the "New Extension Option"). Tenant must notify Landlord
of its intention to exercise the New Extension Option, in writing,
at
least nine (9) months prior to the expiration of the Extension Term.
Except as otherwise expressly provided herein, the New Extension
Option
shall be exercised in accordance with the terms and conditions set
forth
in Section 8 of the Addendum.
|
| 11. |
Termination
of First Amendment.
Notwithstanding any other provision hereof, at any time prior to
commencement of construction of Tenant's Work, but in no event later
than
May 15, 2007, Tenant shall have the right to terminate this First
Amendment by providing written notice thereof to Landlord ("Tenant's
Termination Notice"). Upon Landlord's receipt of Tenant's Termination
Notice, (i) this First Amendment shall become null and void and of
no
further force and effect; (ii) neither Landlord nor Tenant shall
be bound
by any of the terms and conditions hereof; and (iii) the Lease shall
continue in full force and effect without regard to this First
Amendment.
|
| 12. |
Notices.
Notwithstanding anything to the contrary contained in the Lease,
all
notices from Tenant to Landlord under the Lease shall henceforth
be sent
to the following:
|
XX
Xxxxx
Manor Corp.
c/o
Capri
Capital Partners LLC
000
X.
Xxxxxxxx Xxx.
Xxxxx
0000
Xxxxxxx,
XX 00000
Attention:
Asset Manager
with
a
copy to:
Holland
& Knight LLP
000
Xxxxx
Xxxxxxxx Xxxxxx
00xx
Xxxxx
Xxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxx.
3
| 13. |
Broker.
Landlord and Tenant represent and warrant to each other that they
have had
no dealings with any real estate broker, finder or other person entitled
to compensation for services rendered in connection with the negotiation
or execution of this First Amendment other than CB Xxxxxxx Xxxxx,
Inc.,
representing Landlord, and Xxxxxxx & Wakefield of Pennsylvania, Inc.,
representing Tenant (the "Brokers"). Landlord and Tenant each agree
to
defend, indemnify and hold harmless the other from and against any
claim
for broker's or finder's fees or commissions made by any entity,
other
than the Brokers, asserting such claim by, through or under it. Landlord
shall be responsible to pay a commission to the Brokers pursuant
to a
separate agreement.
|
| 14. |
Counterparts.
This First Amendment may be executed in counterparts, each of which
shall
constitute an original, and all of which, when taken together, shall
constitute one and the same
instrument.
|
| 15. |
Time
is of the Essence.
Time is of the essence for this First Amendment and the Lease and
each
provision hereof and thereof.
|
| 16. |
Submission
of First Amendment.
Submission of this instrument for examination shall not bind Landlord
and
no duty or obligation on Landlord shall arise under this instrument
until
this instrument is signed and delivered by Landlord and
Tenant.
|
| 17. |
Entire
Agreement.
This First Amendment and the Lease contain the entire agreement between
Landlord and Tenant with respect to Tenant’s leasing of the Premises.
Except for the Lease and this First Amendment, no prior agreements
or
understandings with respect to the Premises shall be valid or of
any force
or effect.
|
| 18. |
Severability.
If any provision of this First Amendment or the application thereof
to any
person or circumstance is or shall be deemed illegal, invalid or
unenforceable, the remaining provisions hereof shall remain in full
force
and effect and this First Amendment shall be interpreted as if such
illegal, invalid or unenforceable provision did not exist
herein.
|
| 19. |
Lease
In Full Force and Effect.
Except as modified by this First Amendment, all of the terms, conditions,
agreements, covenants, representations, warranties and indemnities
contained in the Lease remain in full force and effect. In the event
of
any conflict between the terms and conditions of this First Amendment
and
the terms and conditions of the Lease, the terms and conditions of
this
First Amendment shall prevail.
|
| 20. |
Successors
and Assigns.
This First Amendment is binding upon and shall inure to the benefit
of the
parties hereto and their respective heirs, legal representatives,
successors and assigns.
|
| 21. |
Integration
of the First Amendment and the Lease.
This First Amendment and the Lease shall be deemed to be, for all
purposes, one instrument. In the event of any conflict between the
terms
and provisions of this First Amendment and the terms and provisions
of the
Lease, the terms and provisions of this First Amendment shall, in
all
instances, control and prevail.
|
4
| 22. |
Patriot
Act.
Landlord and Tenant represent and warrant that they are not acting,
directly or indirectly, for or on behalf of any person, group, entity,
or
nation named by the United States Treasury Department as a Specially
Designated National and Blocked Person, or for or on behalf of any
person,
group, entity, or nation designated in Presidential Executive Order
13224
as a person who commits, threatens to commit, or supports terrorism;
and
that they are not engaged in this transaction directly or indirectly
on
behalf of, or facilitating this transaction directly or indirectly
on
behalf of, any such person, group, entity, or nation. Each party
hereby
agrees to defend, indemnify, and hold harmless the other party from
and
against any and all claims, damages, losses, risks, liabilities,
and
expenses (including reasonable attorneys’ fees and costs) arising from or
related to any breach of the foregoing representation and
warranty.
|
| 23. |
Exculpation.
It is understood and agreed expressly by and between the parties
hereto,
anything herein to the contrary notwithstanding, that each and all
of the
representations, warranties, covenants, undertakings and agreements
made
herein or in the Lease on the part of Landlord, while in form purporting
to be the representations, warranties, covenants, undertakings and
agreements of Landlord, are nevertheless each and every one of them
made
and intended, not as personal representations, warranties, covenants,
undertakings and agreements by Landlord or for the purpose or with
the
intention of binding Landlord personally, but are made and intended
for
the purpose only of subjecting Landlord's interest in (i) the Building,
(ii) the Premises and (iii) the building located at 0000 Xxxxx Xxxx,
in
Doyleston and Warrington Townships, Pennsylvania (the "2700 Building")
to
the terms of this First Amendment and the Lease and for no other
purpose
whatsoever, and in case of default hereunder by Landlord, Tenant
shall
look solely to the interests of Landlord in the Building and the
2700
Building; that Landlord shall have no personal liability whatsoever
to pay
any indebtedness accruing hereunder or to perform any covenant, either
express or implied, contained herein; and that no personal liability
or
personal responsibility of any sort is assumed by, nor shall at any
time
be asserted or enforceable against, said Landlord, individually or
personally, on account of any representation, warranty, covenant,
undertaking or agreement of Landlord in this First Amendment or the
Lease
contained, either express or implied, all such personal liability,
if any,
being expressly waived and released by Tenant and by all persons
claiming
by, through or under Tenant. Notwithstanding the provisions of the
foregoing exculpation clause, nothing therein is intended to limit
or
preclude payment of the Landlord's obligations and claims of the
Tenant
from public liability insurance, excess liability insurance (umbrella
policies), fire and casualty insurance policies and all other policies
of
insurance affecting the Premises maintained by the
Landlord.
|
(EXECUTION
PAGE FOLLOWS)
5
IN
WITNESS WHEREOF,
Landlord and Tenant have executed this First Amendment as of the day and year
first above written.
| WITNESS: | LANDLORD: | |
| XX XXXXX MANOR CORP., | ||
| a Delaware corporation | ||
| |
|
|
| By: | By: | /s/ |
|
Name: Burma G Xxxxx |
Name: Xxxxx Xxxx |
|
| Its: Vice President | ||
| WITNESS: | TENANT: | |
| DISCOVERY LABORATORIES, INC., | ||
| a Delaware corporation | ||
| |
|
|
| By: | By: | /s/ |
|
Name:Xxxxxxxx Xxxxxxxxxx |
Name: Xxxxxx Xxxxxxxx |
|
| Its: CEO | ||
6
EXHIBIT
A
WORK
LETTER
It
is the
intent of this Work Letter that Tenant shall be permitted freedom in the design
and layout of the Premises, consistent with all applicable building and
environmental codes and requirements of law, including without limitation the
Americans with Disabilities Act, and with sound architectural and construction
practice in first-class office buildings, provided that neither the design
nor
the implementation of the Tenant's Work shall cause any interference to the
operation of the Building's HVAC, mechanical, plumbing, life safety, electrical
or other systems or to other Building operations or functions, nor shall they
increase the maintenance or utility charges for operating the Building, except
as otherwise expressly provided herein. Capitalized terms used herein, unless
otherwise defined in this Work Letter, shall have the respective meanings
assigned to them in the Lease or the First Amendment, as the case may be.
For
and
in consideration of the First Amendment and the mutual covenants contained
herein and in the Lease, Landlord and Tenant hereby agree as
follows:
1 .Tenant's
Work.
Subject
to the Landlord's Contribution (described in Paragraph 8 hereof), Tenant, at
its
cost and expense, shall perform or cause to be performed the work in the
Premises, Building and surrounding area provided for in the Plans, as defined
in
Paragraph 2(c) hereof, (the "Tenant's
Work")
in
accordance with the provisions of this Work Letter and the Generator License
Agreement in the form attached as Exhibit
B.
Tenant's Work shall be constructed in a good and workmanlike fashion, in
accordance with the requirements set forth herein and in compliance with all
applicable laws, ordinances, rules and other governmental requirements. Tenant
shall commence the construction of Tenant's Work promptly following completion
of the preconstruction activities provided for in Paragraph 3 below and shall
diligently proceed with all such construction. Tenant shall coordinate Tenant's
Work so as avoid unreasonable interference with any other work being performed
by or on behalf of Landlord and other tenants at the Building, except as
otherwise expressly set forth herein.
2 .Pre-Approved
Activities.
(a )
Prior
to
the execution and delivery of the First Amendment by Landlord and Tenant, Tenant
has submitted the following information and items to Landlord for Landlord's
review and approval:
(i) the
names
and addresses of Tenant's contractors (and the contractors' subcontractors),
including any architects and engineers, to be engaged by Tenant for the Tenant's
Work ("Tenant's
Contractors"),
which
have already been submitted to and approved by Landlord; and
(ii) the
Plans
for the Tenant's Work, which Plans have been approved by Landlord in accordance
with Paragraph 3(c) below.
(b )
Tenant
shall update such information and items by providing written notice to Landlord
of any changes.
A-1
(c )
As
used
herein, the term "Plans"
shall
mean (i) the plans and specifications prepared by Trident Engineering, Inc.
attached hereto as Schedule
1
and
incorporated herein, as such plans and specifications may be revised from time
to time in accordance with Paragraph 5 below. The Plans have been approved
by
Landlord, and such approval by Landlord shall in no way be deemed to be a
representation or warranty of Landlord that such Plans are adequate for any
use
or comply with any applicable laws, ordinances or regulations or other
governmental requirements; or be deemed to be an acceptance or approval of
any
element therein contained which is in violation of any applicable laws,
ordinances, regulations or other governmental requirements.
3. Pre-Construction
Activities.
(a) No
Tenant's Work shall be undertaken or commenced by Tenant in the Premises
until:
(i) all
necessary building permits, governmental approvals, permits and licenses have
been obtained by Tenant, at Tenant's sole cost and expense; and
(ii) all
required insurance coverages have been obtained by Tenant, but failure of
Landlord to receive evidence of such coverage upon commencement of the Tenant's
Work shall not waive Tenant's obligations to obtain such coverages.
4. Charges
and Fees.
Subject
to Paragraph 8 below, Tenant shall be responsible for all costs and expenses
attributable to the Tenant's Work. Notwithstanding the foregoing, Tenant shall
not be responsible for any costs or expenses related to Landlord's review and
approval of the Plans or Landlord's supervision of Tenant's Work, nor shall
Tenant be required to furnish any additional security.
5. Change
Orders.
(a) All
changes to the final Plans requested by Tenant must be submitted to Landlord
in
writing within a reasonable time after Tenant or Tenant's Contractor makes
or
receives changes to such Plans, regardless of whether or not such changes are
subject to Landlord's prior approval. Material Changes (hereinafter defined)
to
the Plans must be approved by Landlord in writing in advance of the
implementation of such changes as part of the Tenant's Work. Landlord's consent
to such Material Changes is not to be unreasonably withheld or
delayed.
(b) Material
Changes are defined as those changes to the Plans which either:
(i) affect
the mechanical, electrical, plumbing, HVAC or other systems
of the Building;
(ii) alter
or
affect the exterior or the structure of the Building; or
(iii) alterations
or additions which cost in excess of $25,000.00.
A-2
(c) Delays
caused by Tenant-initiated change orders, including, without limitation, any
stoppage of Tenant's Work during the change order review process, are solely
the
responsibility of Tenant and shall cause no delay in the commencement of the
Extension Term or the rental obligations set forth in the Lease.
6. Standards
of Design and Construction and Conditions of Tenant's
Performance.
All
Tenant's Work done in or upon the Premises by Tenant shall be done according
to
the standards set forth in this Paragraph 6, except as the same may be modified
in the Plans approved by or on behalf of Landlord and Tenant.
(a) Tenant's
Plans and all design and construction of the Tenant's Work shall comply with
all
applicable statutes, ordinances, regulations, laws, codes and industry
standards, including, but not limited to, requirements of Landlord's fire
insurance underwriters. Approval by Landlord of the Plans shall not constitute
a
waiver of this requirement or assumption by Landlord of responsibility for
compliance. Where several sets of the foregoing laws, codes and standards must
be met, the strictest shall apply where not prohibited by another law, code
or
standard.
(b) Tenant
shall obtain, at its own cost and expense, all required building permits and,
when construction has been completed, shall obtain, at its own cost and expense,
an occupancy permit for the Premises, which permit shall be delivered to
Landlord. Tenant's failure to obtain such permits shall not cause a delay in
the
commencement of the Extension Term or the rental obligations set forth under
the
Lease or First Amendment.
(c) Tenant's
Contractors shall be licensed contractors, possessing good labor relations,
capable of performing quality workmanship and working in harmony with Landlord's
contractors and subcontractors and with other contractors and subcontractors
in
the Building.
(d)
Landlord
shall have the right, but not the obligation, to perform on behalf of and for
the account of Tenant, subject to reimbursement by Tenant, any Tenant's Work
(i)
which Landlord deems to be necessary on an emergency basis, (ii) which pertains
to structural components, building systems or the general utility systems for
the Building, (iii) which pertains to the erection of temporary safety
barricades or signs during construction, or (iv) which pertains to patching
of
the Tenant's Work.
(e)
Tenant
shall use only new, first-class materials in the Tenant's Work, except where
explicitly shown otherwise in the Plans. Tenant shall obtain warranties of
at
least one (1) year's duration from the completion of the Tenant's Work against
defects in workmanship and materials on all Tenant's Work performed and
equipment installed in the Premises as part of the Tenant's Work.
(f)
Tenant
and Tenant's Contractors, in performing Tenant's Work, shall not unreasonably
interfere with other tenants and occupants of the Building. Tenant and Tenant's
Contractors shall make all efforts and take all steps appropriate to
construction activities undertaken in a fully occupied, first-class office
building so as not to interfere with the operation of the Building and shall,
in
any event, comply with all reasonable rules and regulations existing from time
to time at the Building. Tenant and Tenant's Contractors shall take all
precautionary steps to minimize dust, noise and construction traffic and to
protect their facilities and the facilities of others affected by the Tenant's
Work and to properly police same. Construction equipment and materials are
to be
kept within the Premises, and delivery and loading of equipment and materials
shall be done at such locations and at such time as Landlord shall direct so
as
not to burden the construction or operation of the Building. In the event that
Tenant's Work may disrupt, interfere or in any way affect another tenant's
use
of the Building or any portion thereof, Landlord shall use good faith efforts
to
secure any approvals that may be required of those tenants. Notwithstanding
the
foregoing, Tenant and Tenant's Contractors shall have the right to perform
the
Tenant's Work.
A-3
(g)
Landlord
shall have the right to order Tenant or any of Tenant's Contractors who
materially violate the requirements imposed on Tenant or Tenant's Contractors
in
performing Tenant's Work to cease Tenant's Work and remove its equipment and
employees from the Building. No such action by Landlord shall delay the
commencement of the Lease or the rental and other obligations therein set
forth.
(h)
Utility
costs or charges for any service (including HVAC, hoisting or freight elevator
and the like) to the Premises shall be the responsibility of Tenant from the
date Tenant commences the Tenant's Work and shall be paid for by Tenant at
Landlord's rates. Tenant shall apply and pay for all utility meters required.
All use of freight elevators is subject to scheduling by Landlord. Tenant shall
arrange and pay for removal of construction debris and shall not place debris
in
the Building's waste containers.
(i)
Tenant
shall permit access to the Premises, and the Tenant's Work shall be subject
to
inspection, by Landlord and Landlord's architects, engineers, contractors and
other representatives at all times during the period in which the Tenant's
Work
is being constructed and installed and following completion of the Tenant's
Work.
(j)
Tenant
shall proceed with the Tenant's Work expeditiously, continuously and
efficiently, and shall complete the same on or before December 31, 2007, and
Landlord shall use reasonable commercial efforts to assist Tenant with the
completion of the Tenant's Work on or before said date. Tenant shall notify
Landlord upon completion of the Tenant's Work and shall furnish Landlord with
such further documentation as may be necessary under Paragraph 8 below.
(k)
Tenant
shall have no authority to deviate from the Plans in performance of the Tenant's
Work unless: (i) such deviation meets the requirements set forth in Paragraph
5
above; or (ii) such deviations have been authorized by Landlord or its
designated representative in writing. Tenant shall furnish to Landlord
"as-built" drawings of the Tenant's Work within ten (10) days after completion
of the Tenant's Work.
(l)
Landlord
shall have the right to run utility lines, pipes, conduits, duct work and
component parts of all mechanical and electrical systems where necessary or
desirable through the Premises, to repair, alter, replace or remove the same,
and to require Tenant to install and maintain proper access panels
thereto.
(m)
Tenant
shall impose on and enforce all applicable terms of this Work Letter against
Tenant's Contractors.
A-4
7. Insurance
and Indemnification.
(a) Tenant
covenants and agrees to secure and maintain, at all times before, during and
after completion of the Tenant's Work (and through the Term of the Lease),
insurance of the types and amounts set forth in Article 17 of the Original
Lease. Tenant further covenants and agrees to insure the Tenant's Work for
the
full replacement value thereof, in accordance with Article 11 and Article 17
of
the Original Lease. Tenant's insurance shall include Tenant's Contractors and
Tenant shall require Tenant's Contractors to secure, pay for and maintain during
the continuance of the construction within the Building or the Premises,
insurance of the types and amounts set forth in Article 17 of the Original
Lease.
(b) Without
limitation of the indemnification provisions contained in the Lease, to the
fullest extent permitted by law, Tenant agrees to indemnify, protect, defend
and
hold harmless Landlord, Landlord's contractors and Landlord's architects and
their respective partners, directors, officers, employees and agents, from
and
against all claims, liabilities, losses, damages and expenses of whatever nature
arising out of or in connection with the Tenant's Work or the entry of Tenant
or
Tenant's Contractors into the Building and the Premises, including, without
limitation, mechanics' liens or the cost of any repairs to the Premises or
Building necessitated by activities of Tenant or Tenant's Contractors and death
of or bodily injury to persons or damage to the property of Tenant, Tenant's
Contractors and their respective employees, agents, invitees or licensees or
others, except for such claims, liabilities, losses, damages and expenses solely
caused by the gross negligence or willful misconduct of Landlord, its employees,
agents or contractors. It is understood and agreed that the foregoing indemnity
shall be in addition to the insurance requirements set forth above and shall
not
be in discharge of or in substitution for same or any other indemnity or
insurance provision of the Lease.
8. Landlord's
Contribution; Excess Amounts.
(a) In
connection with the Tenant's Work, provided that Tenant complies with all of
the
requirements of this Section 8 and Tenant is not in default hereunder or under
the Lease, Landlord shall contribute a maximum amount ("Landlord's
Contribution")
of
Three Hundred Ninety-Five Thousand Nine Hundred Forty and No/100 Dollars
($395,940.00) (calculated at the rate of $10.00 per rentable square foot of
the
Premises), as Landlord's share of the cost of the Tenant's Work incurred by
Tenant
(b) Periodically
after completion of a portion of the Tenant's Work, Tenant may submit to
Landlord a payment request for costs of the Tenant's Work (the "Payment
Request").
The
Payment Request shall include: (i) all applications for payment to Tenant's
Architect and certificates of payment issued by Tenant's Architect; and (ii)
copies of the AIA documents G702tm-1992 and G703tm-1992 received or issued
for
each application for payment made by Tenant's Contractors.
A-5
(c) Within
five (5) days of receiving a Payment Request from Tenant, Landlord shall pay
a
portion of the Landlord's Contribution in the amount of Eighty-Nine Thousand
Eighty-Six and 50/100 Dollars ($89,086.50), which amount equals one-quarter
(1/4) of the Landlord's Contribution, minus the ten percent (10%) retainage
(as
set forth in subsection (d) below).
(d) After
each Payment Request, Landlord shall pay the portion of the Landlord
Contribution as set forth in subsection (c) above, until ninety percent (90%)
of
Landlord's Contribution has been expended and only the ten percent (10%)
retainage amount remains (the "Retainage").
The
Retainage shall equal $39,594.00, and Tenant shall not be entitled to such
Retainage until it has complied with the requirements set forth in subsection
(f) below.
(e) Upon
written request by Landlord, at no expense to Landlord, Tenant shall furnish
Landlord with legible copies or originals of any records of Tenant or Tenant's
Contractors regarding the Tenant's Work, including the progress thereof and
payments made therefor, which request shall not delay the payments required
by
Landlord under subsections (c) and (d) above. Tenant shall accommodate such
requests in a timely manner.
(f) Upon
completion of the Tenant's Work, Tenant shall furnish Landlord with final
waivers of liens and contractors' affidavits, in such form as may be required
by
Landlord, from all parties performing labor or supplying materials or services
in connection with the Tenant's Work showing that all of said parties have
been
compensated in full and waiving all liens in connection with the Premises and
Building. Tenant shall submit to Landlord a detailed breakdown of Tenant's
total
construction costs, together with such evidence of payment as is reasonably
satisfactory to Landlord. Within fifteen (15) days of Landlord's receipt of
such
documentation and waivers as described herein, Landlord shall pay to Tenant
the
Retainage.
9. Miscellaneous.
(a) Except
as
expressly set forth herein, in the First Amendment or in the Lease, Landlord
has
no agreement with Tenant and has no obligation to do any Tenant's Work with
respect to the Premises.
(b) If
the
Plans for the Tenant's Work require the construction and installation of more
fire hose cabinets or telephone/electrical closets than the number regularly
provided by Landlord in the core of the Building in which the Premises are
located, then Tenant agrees to pay all costs and expenses arising from the
construction and installation of such additional fire hose cabinets or
telephone/electrical closets.
A-6
(c) Time
is
of the essence under this Work Letter.
(d) If
Tenant
fails to make any payment relating to the Tenant's Work as required hereunder,
Landlord, at its option, may complete the Tenant's Work pursuant to the approved
Plans and continue to hold Tenant liable for the costs thereof and all other
costs due to Landlord. Tenant's failure to pay any amounts owed by Tenant
hereunder when due or Tenant's failure to perform its obligations hereunder
shall also constitute a default under the Lease, and Landlord shall have all
the
rights and remedies granted to Landlord under the Lease for nonpayment of any
amounts owed thereunder or failure by Tenant to perform its obligations
thereunder.
(e) Notices
under this Work Letter shall be given in the same manner as under the
Lease.
(f) The
liability of Landlord hereunder or under any amendment hereto or any
instrument
or document executed in connection herewith (including, without limitation,
the Lease) shall be limited to and enforceable solely against Landlord's
interest
in the Building.
(g) The
headings set forth herein are for convenience only.
(h) Except
as
set forth in the First Amendment, or the Generator License Agreement
attached thereto, this Work Letter sets forth the entire agreement of
Tenant
and Landlord regarding the Tenant's Work. This Work Letter may only be
amended
if in writing and duly executed by both Landlord and Tenant.
A-7
SCHEDULE
1
PLANS
EXHIBIT
B
GENERATOR
LICENSE AGREEMENT
This
GENERATOR
LICENSE AGREEMENT (this
“Agreement”) made this 2nd
day of
April , 2007 ("Execution Date"), by and between XX
XXXXX MANOR CORP.,
a
Delaware corporation (hereinafter called “Licensor”), and DISCOVERY
LABORATORIES, INC., a
Delaware corporation (hereinafter called “Licensee”).
WHEREAS,
Licensor's predecessor in interest, Stone Manor Corporate Center, L.P. ("SMCC")
and Licensee entered into that certain Office Lease Agreement dated May 26,
2004
("Original Lease"), as amended by that certain Addendum to Office Lease
Agreement between SMCC and Licensee dated of even date as the Original Lease
("Addendum"), as further amended by that certain Commencement Date Agreement
between SMCC and Licensee dated January 19, 2005 ("Commencement Date
Agreement"), as further amended by that certain First Amendment to Lease between
Licensor and Licensee (the "First Amendment", and together with the Original
Lease, the Addendum and the Commencement Date Agreement, the "Lease"), under
which Licensor demised to Licensee the premises consisting of approximately
39,594 rentable square feet of office space on the first and second floors
(the
“Premises") in the building commonly known as Stone Manor Corporate Center,
0000
Xxxxx Xxxx, in Doyleston and Warrington Townships, Pennsylvania (the
“Building"), all as more particularly set forth in the Lease, for a Lease Term
expiring February 28, 2013.
WHEREAS,
in
connection with such Lease, Licensee desires a license to use certain space,
depicted on the plan sheet SK2, prepared by Trident Engineering, Inc., attached
hereto as Attachment
1
for the
purpose of installing and using an emergency generator (the "Generator"), the
fuel storage tank and related equipment ("Related Equipment") described in
the
specifications prepared Trident Engineering, Inc., attached hereto as
Attachment
2
(the
"Licensed Space"). For the purposes hereof, the Related Equipment includes
the
Connecting Equipment (as hereinafter defined), unless otherwise
indicated.
NOW,
THEREFORE,
in
consideration of the mutual agreements herein set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant have agreed, and hereby agree as
follows:
| 1. |
Grant
of License.
Licensor, for and in consideration of the covenants and agreements
made by
Licensee herein contained, does hereby grant unto Licensee, for a
term
coterminous with the term of the Lease, unless sooner terminated
as
provided herein, a license to utilize the Licensed Space for the
purpose
of installing and using the Generator and Related Equipment in order
to
obtain emergency standby or back-up power only (the
"License").
|
| 2. |
Licensor's
Approval; Costs.
The size, location and placement, as well as the manner and method
of
installation and removal of the Generator and Related Equipment shall
be
subject to the prior written approval of Licensor, in its sole and
absolute discretion. Licensor hereby approves the location and size
of the
Generator and Related Equipment to the extent that such location
and size
are specifically indicated and described on Attachment
1
and Attachment
2,
respectively. If Licensor elects to hire structural, mechanical and/or
other engineers or consultants to review any material changes to
such
plans and specifications, Licensee shall reimburse Licensor for the
reasonable costs thereof. Such costs and any other amounts due hereunder
shall be deemed rent payable in accordance with, and governed by,
the
provisions of the Lease. In addition, Licensee shall pay for all
utilities
consumed to install, maintain, operate and remove the Generator and
Related Equipment, as well as the reasonable costs of any engineers
or
consultants employed by Licensor to review or monitor the installation
or
removal of same.
|
B-1
| 3. |
Approvals,
Permits and Compliance with Laws.
Prior to the installation of the Generator and Related Equipment,
Licensee
shall secure, and shall at all times thereafter maintain, the requisite
approvals and permits of all governmental bodies having jurisdiction.
Licensee, at its expense, shall at all times comply with all applicable
laws and ordinances, rules and regulations, codes and statutes of
municipal, state and federal governmental authorities relating to
the
installation, maintenance, height, location, use, operation and removal
of
the Generator and Related Equipment and all environmental matters
with
respect thereto. Licensor makes no representation of any kind whatsoever
with respect to the Generator and Related Equipment, including any
representation that applicable laws, ordinances or regulations permit
the
installation or operation of the Generator and Related Equipment
on the
Property.
|
| 4. |
Access;
Installation of Connecting Equipment.
Licensor hereby grants unto Licensee the right, to be exercised as
herein
set forth, to enter upon the Licensed Space for the sole purpose
of
gaining access to and maintaining the Generator and Related Equipment.
In
addition thereto, Licensor grants unto Licensee the right, to be
exercised
as herein set forth, to install in connection with and as a part
of the
Generator and Related Equipment such equipment, conduits, cables
and
materials (hereinafter called the "Connecting Equipment") in shafts,
ducts, conduits, chases, utility closets and other facilities of
the
Building, including the premises of other tenants of the Building,
upon
the terms hereinafter provided, as designated by Licensor, as is
reasonably necessary to connect the Generator to Licensee's other
machinery and equipment in the Premises, subject to the requirements
of
any permits and the codes, regulations and rules of any governmental
body,
agency or authority having jurisdiction. Licensor further grants
to
Licensee the right of access to the areas where such Connecting Equipment
is located for the purposes of maintaining, repairing, testing, replacing
or removing the Connecting Equipment; provided, however, that such
access
and installations do not cause damage to or interfere with the operation
or maintenance of any part of the Building or with any other tenants'
operation of their business or use of their premises. Anything herein
to
the contrary notwithstanding, Licensee shall only enter upon the
Licensed
Space at times in accordance with the Schedule (as defined in Section
6
below) and such other areas only at such times, in such manner and
under
such circumstances as shall not cause damage or endangerment to life
or
limb.
|
B-2
| 5. |
Licensee's
Responsibilities with Respect to Testing, Operating and Maintaining
the
Generator.
Licensee, at its expense, shall be solely responsible for testing,
operating and maintaining the Generator and Related Equipment in
a safe,
structurally sound, clean and sightly condition and in strict compliance
with all requirements of any governmental authority, Licensor's insurer
and Licensor's lender, including providing to such parties any
certifications required by such parties in connection with this License.
Any Environmental Protection Agency ("EPA") manifests required with
respect to such testing, operation and maintenance of the Generator
and
Related Equipment shall be in the name of Licensee and shall be the
sole
responsibility of Licensee. The Generator and Related Equipment located
in
the Licensed Space shall be shielded by a wooden or chain-link fence,
at
Landlord's election, and reasonably landscaped in accordance with
Licensor's written specifications at the sole cost and expense of
Licensee. Licensee shall indemnify and hold harmless Licensor from
and
against all liens and claims of mechanics and materialmen furnishing
labor
and materials in the construction, installation and maintenance of
the
Generator and Related Equipment.
|
| 6. |
Testing
and Operation of the Generator and Related
Equipment.
Except for periodic scheduled testing, the Generator shall be operated
only during electrical utility outages. Licensee shall establish
a
schedule (the "Schedule") of dates and time periods for testing of
the
Generator and Related Equipment, which schedule shall be subject
to
Licensor's written approval (such approval not to be unreasonably
withheld
or delayed). Licensee shall test and operate the Generator and Related
Equipment in strict accordance with the terms and conditions of this
Agreement and such testing and operation shall not interfere with
the use
and quiet enjoyment of other tenants of their premises. Licensee
shall
take all appropriate steps in the selection of the Generator and
Related
Equipment to ensure quiet operation of such Generator and Related
Equipment consistent with a sound level acceptable in a normal office
environment, as determined by Licensor in its reasonable discretion.
In
the event that Licensor notifies Licensee of any interference in
the quiet
enjoyment of other tenants of their premises in the Building or other
occupants of the Building from the Generator and Related Equipment
(including but not limited to interference resulting from harmonics,
buzzing, or similar noise or vibration related matters), Licensee
shall
use reasonable efforts to promptly eliminate such interference, or
failing
such elimination, except in the case of an emergency, cease operation
of
the Generator and Related Equipment until such interference is eliminated.
If Licensee fails to comply with any provision of this Agreement
(including but not limited to eliminating any interference or ceasing
operation as provided in this paragraph), and such failure continues
after
notice thereof from Licensor to Licensee, Licensor shall have the
right,
but not the obligation, to cure such failure, and Licensee shall
reimburse
Licensor for any and all costs incurred by Licensor in connection
therewith.
|
B-3
| 7. |
Environmental
Concerns; Indemnity.
|
| 1. |
In
connection with the testing and operation of the Generator and Related
Equipment, Licensee shall have the right to have a quantity of natural
gas, a Hazardous Material (as defined in Section 7.3 below), brought
upon and stored in the Licensed Space and used in connection with
the
Generator and Related Equipment, provided that such natural gas is
delivered, stored, used and removed in compliance with all applicable
laws, rules, codes, and regulations, including Environmental Laws
(hereinafter defined), and that the quantities of such natural gas
shall
be in such limited quantities as reasonably required for such testing,
operation and use of the Generator and Related Equipment.
|
| 2. |
Except
as otherwise expressly set forth herein, Licensee, its agents, employees,
contractors or engineers shall not (i) cause or permit any Hazardous
Materials to be brought upon, stored, used or disposed on, in or
about the
Licensed Space and/or the Building), or (ii) knowingly permit the
release,
discharge, spill or emission of any Hazardous Materials in or about
the
Licensed Space and/or Building (except as otherwise expressly provided
herein). Licensee hereby agrees that it is and shall be fully responsible
for all costs, expenses, damages or liabilities (including, but not
limited to, those incurred by Licensor and/or its mortgagee) which
may
occur from the use, storage, disposal, release, spill, discharge
or
emissions of Hazardous Materials by Licensee in, on or about the
Licensed
Space and/or Building whether or not the same may be permitted by
this
Agreement. Licensee shall defend, indemnify and hold harmless Licensor,
its mortgagee and its agents from and against any claims, demands,
administrative orders, judicial orders, penalties, fines, liabilities,
settlements, damages, costs or expenses (including, without limitation,
reasonable attorney and consultant fees, court costs and litigation
expenses) of whatever kind or nature, known or unknown, contingent
or
otherwise, arising out of or in any way related to the use, storage,
disposal, release, discharge, spill or emission of any Hazardous
Materials, or the violation of any Environmental Laws, by Licensee,
its
agents, employees, contractors or invitees. The provisions of this
Section
shall be in addition to any other obligations and liabilities Licensee
may
have to Licensor at law or in equity and shall survive the transactions
contemplated herein or any termination of this Lease.
|
| 3. |
For
the purposes of this Agreement, all federal, state or local environmental
laws, statutes, regulations, rules, ordinances, codes, standards,
orders,
licenses and permits of any governmental authority or issued or
promulgated thereunder shall be referred to as the "Environmental
Laws"
and "Hazardous Materials" shall include, without
limitation:
|
B-4
(i) those
substances included within the definitions of "hazardous substances," "hazardous
materials," toxic substances," or "solid waste" in the Comprehensive
Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. § 9601
et seq.) ("CERCLA"), as amended by Superfund Amendments and Reauthorization
Act
of 1986 ("XXXX"), the Resource Conservation and Recovery Act of 1976 ("RCRA"),
and the Hazardous Materials Transportation Act, and in the regulations
promulgated pursuant to said laws, all as amended;
(ii) those
substances listed in the United States Department of Transportation Table (49
CFR 172.101 and amendments thereto) or by the Environmental Protection Agency
(of any successor agency) as hazardous substances (40 CFR Part 302 and
amendments thereto); and
(iii) any
material, waste or substance which is (A) gas or petroleum, (B) asbestos, (C)
polychlorinated biphenyl, (D) designated as a "hazardous substance" pursuant
to
Section 311 of the Clean Water Act, 33 U.S.C. § 1251 et seq. (33 U.S.C. § 1321)
or listed pursuant to Section of the Clean Water Act (33 U.S.C. § 1317); (E)
flammables or explosives; or (F) radioactive materials.
| 8. |
Relocation.
Licensor, at its cost and expense, reserves the right upon not less
than
ninety (90) days written notice to Licensee, to relocate the Generator
and/or Related Equipment to substitute space reasonably satisfactory
to
Licensee (the "Substitute Space"). Upon such relocation, the Substitute
Space shall thereafter constitute the Licensed Space under this Agreement.
In the event that Licensee, using good faith efforts to accommodate
Licensor in the relocation, is unable to secure the substitute plans,
government approvals, permits, materials or equipment necessary for
the
relocation of the Generator and/or Related Equipment to the Substitute
Space within the ninety (90) day period, then Licensor shall allow
for an
additional thirty (30) days for the relocation of the Generator and/or
Related Equipment (the "Additional Period"). In the event that Licensee,
using good faith efforts, is unable to obtain the substitute
plans, government
approvals,
permits,
materials or equipment
necessary for the relocation during the Additional Period, then Licensee
shall request Licensor's consent, which consent shall not be unreasonably
withheld or delayed, for an extension of the Additional Period for
an
amount of time reasonably necessary for Licensee's acquisition of
such
plans, government approvals,
materials
or equipment.
|
| 9. |
Non-Exclusive,
Non-Interference.
The License hereby granted to Licensee is non-exclusive and shall
not
preclude Licensor from granting a license or licenses to others with
generators or any other equipment. The rights of Licensee hereunder
shall
be exercised without causing interference with the activities being
carried on by other licensees, and, further, Licensee shall use reasonable
efforts to minimize interference with the activities carried on by
other
licensees on or near the Licensed Space. Licensee shall not change
or
alter the Generator or Related Equipment described on Attachment
2
hereto without the prior written consent of
Licensor.
|
B-5
| 10. |
Right
to Terminate.
If any lease made by Licensee for any space in the Building (including
without limitation the Lease) shall be terminated or terminable after
the
making of this Agreement, because of any default by Licensee thereunder
beyond any applicable cure or grace period, such Event of Default
shall
empower Licensor, at Licensor's sole option, to terminate this Agreement
by notice to Licensee thereof. Notwithstanding the foregoing, this
Agreement shall terminate automatically upon the termination of the
First
Amendment.
|
| 11. |
Removal
of Generator and Related Equipment.
Licensor hereby waives its right to and interest in the Generator,
Related
Equipment and Connecting Equipment. At the termination of this Agreement
by lapse of time or otherwise, the Generator, Related Equipment and
Connecting Equipment installed hereunder shall be removed from the
Licensed Space and other areas of the Building at Licensee's sole
cost and
expense. The Licensed Space and Building areas from which any equipment
is
removed pursuant to the terms of this Section shall be restored by
Licensee to as good condition as existed immediately prior to installation
of the Generator, Related Equipment and/or Connecting Equipment,
normal
wear and tear excepted. In connection therewith, the removal of the
Related Equipment shall include the removal of the transfer switch
and
restoration of electrical circuiting and panels to the main building
systems. Penetrations of the exterior of the Building shall be filled
with
like material of appropriate finish and detail. If Licensee fails
to
remove the Generator, Related Equipment and/or Connecting Equipment
as
required by Licensor, Licensor may remove, store or dispose of the
Generator and such Related Equipment and repair and restore any damage
to
the Building caused by such removal or installation. Licensee shall
reimburse Licensor for any and all costs incurred by Licensor in
connection therewith.
|
| 12. |
Notices;
Documentation.
All notices required to be given hereunder shall be given in accordance
with the notice provisions of the Lease. Upon written request from
Licensor, Licensee shall provide Licensor with copies of all documentation
with respect to the Generator and Related Equipment, including, but
not
limited to, the following: (i) the complete description thereof;
(ii)
purchase contracts; (iii) manufacturers' warranties; (iv) plans and
specifications with respect to the Licensed Space and any other areas
of
the Building; (v), consultants' reports, if any; (vi) installation,
service and maintenance contracts; (vii) testing and maintenance
reports
and logs and certifications; (viii) communications, letters, agreements
and notices from or with any other tenants in the Building with respect
to
the Generator and/or Related Equipment, if any; and (ix) any other
information or documentation of any material significance. Such
documentation shall be provided to Licensor promptly upon the request
by
Licensor therefor, and in no event more than seven (7) days after
such
request.
|
| 13. |
Insurance
and Indemnity.
Licensee's insurance and indemnity obligations and agreements under
the
Lease shall be applicable to the Licensed Space and the Generator
and
Related Equipment. At all times during the term of this Agreement,
Licensee shall maintain general commercial liability and casualty
insurance coverage in such forms and amounts, and with such insurers,
approved by Licensor, in its reasonable discretion, with Licensor
named as
an additional insured. Prior to installing the Generator or Related
Equipment, Licensee shall deliver to Licensor evidence that such
insurance
coverage is in effect. Licensee shall assume the full risk of loss
with
respect to all Generator and Related Equipment located in the Building
and
Licensed Space, and Licensee shall protect, indemnify and hold Licensor,
its partners, employees, contractors, agents, directors, officers,
partners and members (the "Licensor Parties") harmless (and, if requested
by Licensor, shall defend with counsel reasonably acceptable to Licensor
and such Licensor Parties) from and against any and all claims,
liabilities, costs and expenses (including reasonable attorney and
consultant fees, court costs and litigation expenses), including,
without
limitation, claims for damage, loss or injury either to persons or
property, arising from and/or related to the installation, use, testing
and maintenance of the Generator and Related Equipment by Licensee,
its
employees, agents, contractors, consultants or representatives, or
the
failure of Licensee to comply with any of the obligations hereunder.
Licensee hereby waives all claims against Licensor and all of the
other
Licensor Parties for injury to persons, damage to property or to
any other
interests of the Licensee sustained by Licensee or any person claiming
through Licensee resulting from any occurrence in, on or about the
Licensed Space or Building with respect to the Generator or Related
Equipment. The provisions of this Section shall survive the expiration
or
earlier termination of this
Agreement.
|
B-6
| 14. |
Exculpatory
Clause.
It is expressly understood and agreed by and between the parties
hereto,
anything herein to the contrary notwithstanding, that the liability
of
Licensor hereunder shall be limited as provided in Section 24 of
the First
Amendment and relevant provisions of the Original
Lease.
|
| 15. |
Submission
of Agreement.
Submission of this instrument for examination shall not bind Licensor
and
no duty or obligation on Licensor shall arise under this instrument
until
this instrument is signed and delivered by Licensor and
Licensee.
|
| 16. |
Defined
Terms.
Capitalized terms which are not otherwise defined herein shall be
deemed
to have the same meanings herein as are ascribed to such terms in
the
Lease.
|
| 17. |
Successors
and Assigns.
This Agreement shall be binding upon the successors and assigns of
the
parties hereto, provided that Licensee shall not assign or transfer
this
Agreement to any other person without Licensor's prior written consent,
which may be withheld by Licensor in its sole and absolute
discretion.
|
(EXECUTION
PAGE FOLLOWS)
B-7
IN
WITNESS WHEREOF,
Licensor and Licensee have executed this Agreement as of the day and year first
above written.
| WITNESS: | LICENSOR: | |
| XX XXXXX MANOR CORP., | ||
| a Delaware corporation | ||
| |
|
|
| By: | By: | |
|
Name: |
Name: |
|
| Its: | ||
| WITNESS: | LICENSEE | |
| DISCOVERY LABORATORIES, INC., | ||
| a Delaware corporation | ||
| |
|
|
| By: | By: | |
|
Name: |
Name: |
|
| Its: | ||
B-8
ATTACHMENT
1
GENERATOR
ATTACHMENT
2
SPECIFICATIONS
