Exhibit 10.12
LEASE
FOR
000 XXXXXXXX XXXXX, XXXX XXXXXX XXXXXXXX
XXXXXXX XXXXXX, XXXXXXXXXXXX
BY AND BETWEEN
BERWIND PROPERTY GROUP, LTD., OR ITS ASSIGNEE/NOMINEE
(AS LANDLORD)
AND
ANIMAS CORPORATION
(AS TENANT)
Date: June 24, 2003
Exhibit 10.12
TABLE OF CONTENTS
PAGE
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1. Definitions....................................................... 1
2. Premises.......................................................... 1
3. Completion of Premises............................................ 1
4. Use of Premises................................................... 1
5. Fixed Basic Rent.................................................. 1
6. Real Estate Taxes................................................. 2
7. Management Fee.................................................... 3
8. Interest and Late Charge.......................................... 3
9. Insurance......................................................... 3
10. Repairs and Maintenance........................................ 6
11. Utilities and Services......................................... 8
12. Governmental Regulations....................................... 8
13. Alterations, Additions and Fixtures............................ 9
14. Mechanic's Liens............................................... 10
15. Negative Covenants of Tenant................................... 11
16. Hazardous Substances........................................... 11
17. Landlord's Right of Entry...................................... 14
18. Damage by Fire or Other Casualty............................... 15
19. Non-Abatement of Rent.......................................... 16
20. Indemnification................................................ 16
21. Eminent Domain................................................. 17
22. Quiet Enjoyment................................................ 18
23. Assignment and Sublease........................................ 18
24. Subordination.................................................. 20
25. Curing Defaults................................................ 20
26. Surrender...................................................... 20
27. Defaults-Remedies.............................................. 20
28. Broker's Commission............................................ 25
29. Notices........................................................ 25
30. Inability to Perform........................................... 26
31. Survival....................................................... 26
32. Financial Statements........................................... 26
33. Waiver of Invalidity of Lease.................................. 26
34. Security Deposit............................................... 27
35. Estoppel Certificate........................................... 28
36. Miscellaneous.................................................. 28
37. Renewal Option................................................. 29
38. Right to Expand................................................ 30
39. Additional Definitions......................................... 31
40. Lease Contingency.............................................. 32
41. Right Of First Offer To Purchase............................... 32
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Exhibit 10.12
THIS LEASE (the "Lease") is made the ____ day of June, 2003 between
BERWIND PROPERTY GROUP, LTD., its assignee/nominee (herein referred to as
"Landlord"), a Pennsylvania limited partnership and ANIMAS CORPORATION (herein
referred to as "Tenant") a corporation.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease shall have only the meanings set
forth in this Section, unless such meanings are expressly modified, limited or
expanded elsewhere in this Lease.
A. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent payable
by Tenant to Landlord pursuant to the provisions of the Lease.
B. BROKER shall mean Xxxx Realty Group, Inc.
C. BUILDING shall mean the building located at 000 Xxxxxxxx Xxxxx, Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx containing approximately 102,393 rentable
square feet of space.
D. BUILDING SYSTEMS means the heating, ventilating, air conditioning, electrical
and plumbing equipment, wires, ducts and lines on the Premises, excluding
anything owned by utilities or governmental agencies or authorities.
E. COMMENCEMENT DATE shall mean April 1, 2004.
F. DELIVERY DATE shall be on or about October 1, 2003.
G. EXHIBITS shall be the following, attached to this Lease and incorporated in
this Lease and made a part of this Lease:
Exhibit A Legal Description of Property
Exhibit B Schedule of Fixed Basic Rent
Exhibit C Work Letter
Exhibit D Tenant Estoppel Certificate
Exhibit E Existing FF&E
Exhibit F Form of Letter of Credit
Exhibit G Site Plan and Expansion Space Area
H. FIXED BASIC RENT shall be calculated and payable as provided in Section 5 and
Exhibit B of this Lease.
I. IMPROVEMENT ALLOWANCE shall mean the sum of Nine Hundred Seventy Five
Thousand Dollars ($975,000).
J. LANDLORD PARTIES shall mean Landlord, its successors and assigns and their
respective officers, directors, employees, agents, contractors, licensees and
invitees.
K. LEASE YEAR means the twelve-month period beginning on the Commencement Date
(if the Commencement Date is the first day of a calendar month), or on the first
day of the calendar month next succeeding the Commencement Date (if the
Commencement Date is not the first day of a calendar month), and each succeeding
twelve-month period.
L. PERMITTED USE shall be general office use, lab research and development,
light assembly and testing, and such other uses as may be permitted by
applicable laws.
M. PREMISES shall mean the Property.
N. PROPERTY shall mean the Building and the lot, tract or parcel of land on
which the Building is situated and all improvements now existing or hereinafter
made thereto, the land being more particularly described on Exhibit A attached
hereto.
O. SECURITY DEPOSIT shall mean the sum of $550,363 which shall satisfy the
requirements and be held in accordance with Section 34 of the Lease, as same may
be reduced in accordance with Section 34 of this Lease.
P. TENANT PARTIES shall mean Tenant, its successors, assigns and subtenants and
their respective officers, directors, employees, agents, contractors, licensees
and invitees.
Q. TERM shall mean the period of time commencing on the Delivery Date and ending
March 31, 2014, unless otherwise terminated or extended pursuant to the terms of
this Lease.
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Exhibit 10.12
For and in consideration of the covenants contained in this Lease, and upon the
terms and conditions set forth in this Lease, Landlord and Tenant, intending to
be legally bound, agree as follows:
1. DEFINITIONS. The definitions set forth in the preceding Preamble
shall apply to the same capitalized terms appearing in this Lease. Additional
definitions are contained in Section 39 and throughout this Lease.
2. PREMISES. Landlord hereby demises and leases the Premises to Tenant
and Tenant hereby leases and takes the Premises from Landlord for the Term and
upon the terms, covenants, conditions, and provisions set forth in this Lease,
including the Preamble (this "Lease").
3. COMPLETION OF PREMISES.
a. Prior to the Commencement Date and at its sole cost and
expense, Landlord shall cause to be performed in a good and workmanlike manner
and in compliance with applicable laws all design and construction work
necessary to add 150 additional parking spaces, related drive lanes and lighting
on the Property (collectively, the "Site Work"), all in compliance with
applicable law, including curbing and landscaping if required by applicable law,
and generally consistent with the site plan attached hereto as Exhibit G.
b. Except for the Site Work, the Premises shall be delivered
to Tenant on the Delivery Date in its "As-Is, Where-Is" condition and Landlord
shall have no obligation to construct or install any improvements on the
Premises or to remodel, renovate, recondition, alter or improve the Premises for
Tenant's use prior to the commencement of the Term, Landlord's sole additional
obligation being to fund the Improvement Allowance in accordance with the Work
Letter. Landlord makes no representation or warranty as to the condition of the
Premises. Tenant acknowledges that Tenant has inspected the Premises or has had
the Premises inspected by professional consultants retained by Tenant, Tenant is
familiar with the condition of the Premises, and the Premises are suitable for
Tenant's purposes, and the condition of the Premises is acceptable to Tenant.
Nothing in this paragraph shall diminish any representation or covenant of
Landlord contained elsewhere in this Lease, or excuse Landlord from the
performance of Landlord's obligations under this Lease.
4. USE OF PREMISES. Landlord represents that the Premises is zoned I-1
Campus Industrial. Tenant shall use the Premises only for the Permitted Use.
5. FIXED BASIC RENT. Commencing on the Commencement Date and throughout
the Term, Tenant shall pay annual fixed basic rent ("Fixed Basic Rent") in the
amounts set forth on Exhibit B, which amount shall be due without notice or
demand and without setoff or deduction, in equal monthly installments equal to
one-twelfth of the annual Fixed Basic Rent, in advance, on the first day of each
calendar month during the Term. All payments of Fixed Basic Rent shall be made
by wire transfer through an ACH member financial institution to an account
designated by Landlord from time to time. If the Commencement Date falls on a
day other than the first day of a calendar month, the Fixed Basic Rent shall be
due and payable for such month, apportioned on a per diem basis for the period
between the Commencement Date and the first day of the next first full calendar
month in the Term and such apportioned sum shall be paid on the
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Commencement Date. On or before December 20, 2003, Tenant shall pay the
installment of Fixed Basic Rent attributable to the first full calendar month of
the Term for which a full monthly installment of Fixed Basic Rent is payable
hereunder.
6. REAL ESTATE TAXES
a. "Real Estate Taxes" shall mean all taxes, liens, charges,
imposts and assessments of every kind and nature, ordinary or extraordinary,
foreseen or unforeseen, general or special, levied, assessed or imposed by any
governmental authority based on the assessed value of the Property, as well as
all fees or assessments payable on account of the Property being located in any
special services district. Notwithstanding the foregoing:
(i) If at any time during the Term the present
system of ad valorem taxation of real property shall be changed or supplemented
so that in lieu of or in addition to the ad valorem tax on real property there
shall be assessed on Landlord or the Property any tax of any nature which is
imposed in whole or in part, in substitution for, or in lieu of any tax which
would otherwise constitute a Real Estate Tax, such tax shall be included within
the term "Real Estate Taxes," but only to the extent that the same is in lieu of
ad valorem real estate taxes and would be payable if the Property were the only
property of Landlord.
(ii) If any special assessment is permitted to be
paid in installments over a period of time, Landlord shall elect the longest
available installment period and Tenant shall be responsible to pay only those
installments which fall within the Term.
(iii) There shall be excluded from Real Estate
Taxes all excise, franchise, estate, succession and inheritance taxes, transfer
taxes imposed on any conveyance of the Property or any part thereof and, except
as otherwise provided in Subsection 6(a)(i) above, all income taxes and excess
profit taxes.
b. Payment. Commencing on the Commencement Date and throughout
the Term, Tenant shall pay all Real Estate Taxes for tax periods falling within
the Term. Except as provided below, all Real Estate Taxes shall be paid by
Tenant directly to the applicable taxing authority on or before the date by
which payment must be made in order to avoid the imposition of late payment fees
and penalties. Tenant shall not be obligated to take advantage of discount
periods. Real Estate Taxes for the tax periods in which the Commencement Date
and the termination date of the Term occur shall be paid by Landlord and
prorated, and Tenant shall pay to Landlord, within thirty (30) days after Tenant
receives from Landlord receipted tax bills showing the payment made by Landlord
and the period covered, the prorated portion applicable to the Term. Landlord
shall cooperate with Tenant's efforts to have all assessments and tax bills
mailed directly to Tenant at the Premises by the taxing authorities. If any
bills or assessments are sent to Landlord, Landlord shall forward them to Tenant
within five (5) days. Similarly, for the first and last Lease Year, if Tenant
received such bills or assessments it shall forward same to Landlord within
fifteen (15) days following receipt. Upon request by Landlord from time to time
throughout the Term, Tenant shall furnish to Landlord receipted bills or other
reasonable evidence that the Real Estate Taxes have been paid by Tenant.
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c. Contest. Tenant shall have the exclusive right to contest
Real Estate Taxes and related assessments on the Premises during the Term. If
applicable law requires that a contest be brought in the name of the land owner,
Landlord will cooperate to enable Tenant to prosecute its contest, provided
however that all expenses of the contest shall be paid by Tenant. All refunds
and credits applicable to tax periods falling within the Term shall belong
solely to Tenant.
d. Tenant's Personalty. Tenant shall pay all taxes imposed
upon Tenant's furnishings, trade fixtures, equipment or other personal property.
7. MANAGEMENT FEE. Commencing on the Commencement Date and throughout
the Term, Tenant shall pay to Landlord as Additional Rent an annual fee of Ten
Thousand Dollars ($10,000) for Landlord's services in connection with the
Premises as set forth in this Lease. The payment shall be made in twelve equal
monthly installments at the time and in the manner set forth in this Lease for
the payment of Fixed Basic Rent.
8. INTEREST AND LATE CHARGE. At its option on written notice to Tenant,
Landlord may charge a late payment charge of three percent (3%) of any
installment of Fixed Basic Rent that is not paid within seven (7) days of the
due date thereof, provided, however that for the first occasion of late payment
in any Lease Year, neither the late charge nor Default Interest shall be charged
unless Tenant fails to pay the overdue installment within ten (10) days after
written notice of nonpayment from Landlord. Fixed Basic Rent due from Tenant to
Landlord which is not paid within thirty (30) days after the date due shall bear
interest at an interest rate (the "Default Rate") equal to the Prime Rate
published from time to time in the Money Rates column of the Wall Street Journal
plus 4% (or, if lower, the highest rate then allowed under the usury laws of the
Commonwealth of Pennsylvania) from the date due until the date paid. The right
of Landlord to charge a late charge and interest with respect to past due
installments of Fixed Basic Rent is in addition to Landlord's rights and
remedies upon an Event of Default.
9. INSURANCE.
a. Tenant's Insurance. Tenant shall obtain, maintain and keep
in full force and effect the following insurance, at Tenant's sole cost and
expense, with companies authorized to do business in the Commonwealth of
Pennsylvania and having a rating of at least A+XV (or its equivalent) by Best
Rating Source or any successor thereto (or if there be none, an organization
having a national reputation in the field of rating property insurance
companies):
(i) "All Risk" property insurance against fire,
theft, vandalism, malicious mischief, sprinkler leakage and such additional
perils as are now, or hereafter may be, included in a standard extended coverage
endorsement from time to time in general use in the Commonwealth of Pennsylvania
upon Tenant's equipment, furniture and furnishings, trade fixtures and other
personal property in the Building or otherwise on the Premises, in such amounts
and with such deductibles as Tenant deems appropriate.
(ii) Workers' Compensation insurance in form and
amount as required by law.
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(iii) Commercial General Liability Insurance
coverage to include bodily injury, death, property damage and, where available
and customarily carried in Tenant's industry, operations hazard, contractual
liability, products and completed operations liability, naming Landlord as an
additional insured, in limits of not less than Three Million Dollars
($3,000,000), with commercially reasonable deductibles. Tenant shall furnish to
Landlord, no later than the Commencement Date and thereafter annually throughout
the Term, certificates addressed to Landlord as certificate holder, evidencing
the required liability insurance coverage, on the XXXXX 27 form or comparable
form in which the insurer undertakes that the policy will not be cancelled
without 30 days notice to Landlord.
(iv) Any other form or forms of insurance or any
increase in the limits of any of the aforesaid enumerated coverages or other
forms of insurance as Landlord or the mortgagees of Landlord may reasonably
require from time to time if in the reasonable opinion of Landlord or said
mortgagees said additional forms of insurance or increase in limits are then
commonly maintained by prudent tenants in similar buildings in the area by
tenants making similar uses.
b. Landlord's Insurance.
(i) Landlord shall obtain, maintain and keep in
full force and effect the following insurance with companies authorized to do
business in the Commonwealth of Pennsylvania and having a rating of at least
A+XV (or its equivalent) by Best Rating Service or any successor thereto (or if
there be none, an organization having a national reputation in the field of
rating property insurance companies).
(A) "All Risk" property insurance against
fire, theft, vandalism, malicious mischief, sprinkler leakage and such
additional perils as are now, or hereafter may be, included in a standard
extended coverage endorsement from time to time in general use in the
Commonwealth of Pennsylvania upon the Building and all plumbing, electrical,
mechanical and other operating systems therein and all improvements in the
Building (except Tenant's property as described in Section 9(a)(i) above), in an
amount equal to the full replacement cost thereof with an "agreed amount"
endorsement, with such deductibles as Tenant may reasonably approve, and with so
called "builder's risk" coverage during any period of construction at the
Premises.
(B) Rental income insurance insuring
Landlord against abatement or loss of Fixed Basic Rent, including items of
Additional Rent, in case of fire or other casualty similarly insured against, in
an amount equal to the Fixed Basic Rent and Additional Rent for twelve months or
such longer period as Tenant may approve.
Landlord shall furnish to Tenant, no later than the Delivery Date and thereafter
annually throughout the Term, certificates addressed to Tenant as certificate
holder, evidencing the required insurance coverage, on the XXXXX 27 form or
comparable form in which the insurer undertakes that the policy will not be
cancelled without thirty (30) days prior notice to Tenant.
(ii) Beginning on the Commencement Date and
throughout the Term, Tenant shall pay the premiums for Landlord's insurance
required under Section 9(b) above. Premiums for the years in which the
Commencement Date and the termination date of the Term
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occur shall be prorated. Tenant's premium payment shall be paid to Landlord
within thirty (30) days after Tenant's receipt of a copy of the insurer's
invoice and with the required insurance certificate. If the premiums for
Landlord's insurance exceed by five percent (5%) or more the premium cost at
which Tenant is able to purchase the same or better coverage from a company
meeting the standards set forth in Section 9(b)(i) and otherwise satisfying
Landlord's insurance requirements pursuant to any loan secured by a mortgage on
the Property ("Qualified Company"), then at its option Tenant may require that
Landlord's insurance be purchased from the Qualified Company of Tenant's choice
unless Landlord commits in writing to Tenant that Landlord will pay its own
insurance premiums to the extent they exceed the premium cost charged by the
Qualified Company selected by Tenant.
(iii) Notwithstanding payment of insurance
premiums by Tenant as provided herein, Tenant acknowledges that it has no right
to receive any proceeds from any such insurance policies carried by Landlord
although subject to the terms of this Lease Landlord shall use such proceeds in
the repair and reconstruction of the Building and the Premises. Landlord will
not carry insurance of any kind on Tenant's furniture or furnishings, or on any
fixtures, equipment or other personal property of Tenant under this Lease, and
Landlord shall not be obligated to repair any damage thereto or replace the
same.
c. Failure to Insure. If either Landlord or Tenant shall fail
to obtain, and furnish certificate evidence as required above, of the insurance
required to be carried by it under this Section 9, (i) the party failing to
carry insurance shall be responsible for all losses suffered by the other party
which would have been covered had the required insurance been in effect at the
time of the loss, and (ii) if such failure continues for twenty (20) days after
notice from the other party, as evidenced by the failure to produce the required
certificate of coverage, the other party may purchase the required insurance,
with a term of up to twelve months, for the account of the defaulting party.
d. Waiver of Subrogation. Any policy or policies of fire,
extended coverage or similar casualty insurance, which either party obtains in
connection with the Building or Property shall include a clause or endorsement
denying the insurer any rights of subrogation against the other party (i.e.
Landlord or Tenant) for all perils covered by such policy. Should such waiver
not be available then the policy for which the waiver is not available must name
the other party as an additional named insured affording it the same coverage as
that provided the party obtaining such coverage. Any provision of this Lease to
the contrary notwithstanding, except as otherwise provided in Section 9(c)(i)
above in the case of a party's failure to carry the required insurance, Landlord
and Tenant hereby release the other from any and all liability or responsibility
to the other or anyone claiming through or under them by way of subrogation or
otherwise (a) from any and all liability for any loss or damage to the property
of the releasing party, (b) for any loss or damage that may result, directly or
indirectly, from the loss or damage to such property (including rental value and
business interruption), and (c) from legal liability for any loss or damage to
property (no matter who the owner of the property may be), all to the extent
that the releasing party's loss or damage is insured or, if not insured, was
insurable under commercially available "all risk" property insurance policies,
including additional coverages typically obtained by owners and tenants of
comparable buildings in the vicinity of the Building, even if such loss or
damage or legal liability shall be caused by or result from the fault or
negligence of the other party or anyone for whom such party may be responsible
and even if the
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releasing party is self insured in whole or in part or the amount of the
releasing party's insurance is inadequate to cover the loss or damage or legal
liability. It is the intention of the parties that Landlord and Tenant shall
look solely to their respective insurance carriers for recovery against any such
property loss or damage or legal liability, without such insurance carriers
having any rights of subrogation against the other party.
10. REPAIRS AND MAINTENANCE.
a. Obligations of Landlord.
(i) At all times during the Term of this Lease
Landlord shall maintain and repair (including capital replacements as needed)
the structural elements of the land, parking lot and Building (including without
limitation the land, the foundations, the load bearing walls and, except as
otherwise provided in Section 10(b)(vi), the roof and roof membrane system) in
good condition and repair, reasonable wear and tear and damage by fire or other
casualty excepted. Landlord's obligation shall not include windows, glass or
plate glass, doors, or the interior surfaces of exterior walls, unless due to
the failure of a structural element of the Premises such as if the window seals
in a majority of the windows failed, and Landlord's obligation shall not include
the repair and maintenance items described as Tenant's responsibility under
Section 10(b). Except as provided under Section 10(b)(ii) below, Landlord shall
also be responsible for capital replacements (as determined in accordance with
generally accepted real estate practices) to the Building Systems when needed.
Landlord agrees that it shall deliver the Building Systems to the Tenant on the
Delivery Date in working order. Except as otherwise expressly provided in this
Lease all work performed by Landlord pursuant to this Section 10(a) shall be
performed at Landlord's sole cost and expense. Landlord shall, at Landlord's
expense, promptly repair any damage to the Premises caused by Landlord or any of
the Landlord Parties.
(ii) Throughout the Term, Landlord shall perform
such roof inspections and maintenance to the roof and the roof membrane as may
be required and the reasonable costs incurred by Landlord in order to perform or
to cause to be performed such work shall be payable by Tenant as Additional Rent
within thirty (30) days after written invoice for same. The parties agree that
it shall be reasonable for Landlord to perform or cause to be performed any work
reasonably required in order to comply with the roof warranty for the roof of
the Building. In addition, Landlord shall request repairs to be made to the roof
upon Tenant's request.
(iii) Notwithstanding the foregoing, if Landlord
shall make a capital expenditure which effectuates cost savings to Tenant in
Tenant's operation and maintenance of the Premises (other than one which is
required to be made pursuant to Section 12 below), then Tenant shall reimburse
Landlord for such capital expenditure to the extent of the savings.
b. Obligations of Tenant. Except to the extent the
responsibility of Landlord as set forth in Section 10(a) above, at all times
during the Term of this Lease Tenant, at its own cost and expense, shall
maintain and repair the Premises and every part thereof including the Building
Systems (except only the parts for which Landlord is responsible under Section
10(a) or other express provision of this Lease), and all equipment, fixtures and
improvements therein (including the windows, glass, plate glass, doors, and the
interior surfaces of exterior walls, interior walls
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and floor coverings unless the repair is needed due to the failure of a
structural element of the Premises for which Landlord is responsible pursuant to
Section 10(a) above) in good condition, reasonable wear and tear and damage by
fire or other casualty excepted. Tenant's obligations shall include the
following:
(i) Tenant shall recoat and stripe the parking
lot once during Lease Year 3 or 4 and again during Lease Year 7 or 8 and if
extended, once during each renewal term.
(ii) Tenant shall enter into a regularly
scheduled preventative maintenance and service contract for servicing all hot
water, heating and air conditioning systems and equipment in the Premises. The
maintenance and service contract shall include all services suggested by the
equipment manufacturer. In the event of a replacement of a part or portion of
the HVAC equipment which is warranted by the manufacturer and/or guaranteed by
the installer, Tenant shall provide the Landlord with a copy of the warranty
and/or guaranty and at the end of the Term, as same may be extended, the
original warranty or guaranty, provided that nothing in this sentence shall be
construed by make Tenant responsible for capital replacements of components of
the HVAC equipment exceeding in cost the aggregate sum of Fifteen Thousand
Dollars ($15,000,00) during any calendar year.
(iii) At least once each year Tenant shall bring
in an independent inspector of Tenant's choice reasonably acceptable to Landlord
to inspect the Building and the Building Systems and give Tenant a written
report of his or her findings. Tenant shall follow all reasonable maintenance
recommendations in such report other than those recommendations relating to
elements for which Landlord is responsible, provided that nothing herein shall
make Tenant responsible for capital replacements of Building Systems, except as
provided in Section 10(b)(ii) above. Tenant shall furnish a copy of every annual
inspection report (even if in draft form) to Landlord within fifteen (15) days
of receipt.
(iv) Tenant shall keep the Premises clean and
free from dirt, rubbish, waste and debris at all times and shall be responsible
for the removal of trash and waste from the Property.
(v) Except in the event of a casualty in which
case Section 18 below shall control, Tenant shall, at Tenant's expense, promptly
repair any damage to the Premises caused by Tenant or any of the Tenant Parties.
Any damage to any part of the Premises for which Tenant is responsible that is
caused by anyone in the Landlord Parties shall be repaired by Tenant at
Landlord's expense and Landlord shall pay to Tenant, within thirty (30) days of
receipt of a written invoice from Tenant, the cost of such repairs incurred by
Tenant.
(vi) Tenant shall not do anything or permit
anything to be done to the roof which would cause the roof warranty to be
voided.
c. Notice; Failure to Maintain. Tenant and Landlord shall give
one another written notice of the need for any maintenance or repair for which
other party is responsible, after which party responsible shall have a
reasonable opportunity, taking into account the impact of the problem on
Tenant's ability to use the Premises and the time needed to perform the repair,
to perform the maintenance or make the repair. If either Landlord or Tenant
shall fail to perform the
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obligations required of it under this Section 10(c) and if such failure
continues for thirty (30) days after notice from the other party, or such other
longer period as is reasonably necessary in all the circumstances to perform the
obligation, the other party may have the maintenance or repair (including
replacements) performed for the account of the defaulting party, and, to the
extent that the defaulting party is otherwise responsible for the cost of such
work under this Lease, may recover from the defaulting party the cost of the
work plus interest at the Default Rate from the date or dates incurred to the
date of full reimbursement.
11. UTILITIES AND SERVICES. On or before the Commencement Date, Tenant
shall contract for and thereafter pay directly to the appropriate supplier
before delinquency all costs for all water, gas, heat, light, power, telephone,
sewer, refuse disposal and other utilities and services supplied directly to
Premises together with all taxes, assessments, surcharges and similar expenses
relating to such utilities and services. Tenant shall furnish the Premises with
all telephone service and other services required by Tenant for the use of the
Premises permitted by this Lease. Tenant shall furnish all electric light bulbs
and tubes and restroom supplies used in the Premises. Landlord shall not be in
default under this Lease or be liable for any damage or loss directly or
indirectly resulting from, nor shall the rent be abated or a constructive or
other eviction be deemed to have occurred by reason of, any interruption of or
failure to supply or delay in supplying any such utilities and services or any
limitation, curtailment, rationing or restriction on use of water, electricity,
gas or any resource or form of energy or other service serving the Premises,
whether such results from mandatory restrictions or voluntary compliance with
guidelines. Landlord shall not be responsible to provide any water, gas, heat,
light, power, telephone, sewer, refuse disposal or other utilities or other
services prior to the Commencement Date and Tenant shall not be obligated for
the costs of same unless and until Tenant commences the Tenant Improvements (as
defined in the Work Letter) or takes beneficial occupancy of the Premises.
Notwithstanding the foregoing, in the event of an interruption of utilities to
the Premises which materially interferes with Tenant's use and occupancy of the
Premises and which continues for five (5) consecutive business days following
notice from Tenant to Landlord, then so long as same was not caused by Tenant or
a Tenant Party, Tenant shall be entitled to a full abatement of Fixed Basic Rent
and Additional Rent from the date of the interruption until such utility service
is restored.
12. GOVERNMENTAL REGULATIONS.
a. Landlord and Tenant shall comply with all laws, ordinances,
notices, orders, rules, regulations and requirements of all federal, state and
municipal government or any department, commission, board of officer thereof
(collectively, "Governmental Regulations") relating to the Premises or to the
use or manner of use of the Property. Neither Landlord nor Tenant shall
knowingly do or commit, or suffer to be done or committed anywhere on the
Property, any act or thing contrary to any of the Governmental Regulations.
b. Landlord shall be responsible for the installation or
construction of capital improvements required for the Property to comply with
Governmental Regulations. The cost of such improvements shall be the
responsibility of Landlord if the applicable Governmental Regulation was enacted
prior to the Commencement Date, the responsibility of Tenant if the applicable
Governmental Regulation is enacted after the Commencement Date. If Landlord
shall purchase any item of capital equipment or make any capital improvements
the cost of
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which is the responsibility of Tenant under this Section 12(b), then the costs
for same shall be amortized on a straight line basis beginning in the year of
installation and continuing for the useful life thereof, but not more than ten
(10) years, and Tenant shall reimburse Landlord only for that portion of the
amortized costs which falls within the Term of this Lease unless such
improvement is required due to Tenant's particular use or manner of use of the
Premises, in which case Tenant shall be responsible for the entire cost of the
improvement. Tenant's payment shall be due to Landlord within thirty days after
the later of completion of the applicable expenditure and Tenant's receipt of
Landlord's invoice, which invoice shall detail the improvement, the useful life
applied and the portion allocable to the Term.
13. ALTERATIONS, ADDITIONS AND FIXTURES.
a. Landlord and Tenant acknowledge that within the Building
are furniture, trade fixtures (including without limitation racking systems in
the warehouse), equipment (including without limitation a telephone system), an
alarm system (Locknetics Key Card System) and other furnishings and fixtures
listed on Exhibit E (all of such existing items being referred to collectively
as the "Existing FF&E"). Landlord hereby leases the Existing FF&E to Tenant "AS
IS, WHERE IS" and without any representation or warranty whatsoever. Tenant
shall have the right to use, consume, remove, dispose of and/or replace the
Existing FF&E at Tenant's option in the ordinary course and conduct of its
business at any time and from time to time throughout the Term, without any
obligation to maintain, repair or replace any of the Existing FF&E, provided,
however, that Tenant shall repair and restore any damage or injury to the
Premises caused by installation or removal and provided further that before
removing any warehouse racking from the Premises, Tenant shall provide Landlord
with prior notice of its intention to do so at least thirty (30) days prior to
the date of removal and give Landlord an opportunity to elect to keep same and
store such racking for its use or the use of others at a location other than the
Premises. If Tenant elects to replace any of the Existing FF&E, then all such
replacements shall be the property of the Tenant and Tenant may remove any and
all replacement property at expiration of the Term, except that wiring and
non-trade fixtures integrated into the Building (such as alarm systems) shall
become part of the Building upon installation and may not be removed at
expiration of the Term without Landlord's consent.
b. During the Term, Tenant shall also have the right at its
cost from time to time and at any time to install in and remove from the
Premises any other of Tenant's furnishings, equipment and trade fixtures;
provided, however, that Tenant shall repair and restore any damage or injury to
the Premises caused by installation or removal.
c. Tenant shall have the right to make alterations, additions
and/or improvements to the Premises (collectively, the "Alterations") without
cost to Landlord, provided, however, that Landlord's prior written consent shall
be required for any structural Alteration, any Alteration expanding the size of
the Building or making any substantive change to the exterior appearance of the
Building, and any Alteration (or series of contemporaneous Alterations) costing
in excess of $50,000. Where Landlord's consent is required, Tenant shall present
plans and specifications to Landlord for Landlord's approval, which shall not be
unreasonably withheld or delayed, but may be conditioned upon compliance with
reasonable requirements of Landlord as provided in this Lease including, but not
limited to, the following: (i) Tenant supplies any necessary permits; (ii) such
alterations and improvements do not, in Landlord's
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reasonable judgment, impair the structural strength of the Building; (iii)
Tenant takes or causes to be taken all steps that are otherwise required by
Section 14 of this Lease and that are required or permitted by law in order to
avoid the imposition of any mechanic's, laborer's or materialman's lien upon the
Building or the Property; (iv) Tenant uses a contractor approved by Landlord
such approval not to be unreasonably withheld, conditioned or delayed, it being
understood that union affiliation or non-affiliation shall not be a basis for
disapproval of a contractor. Landlord shall respond to Tenant requests for
consent within twenty (20) days after Tenant's submission. In connection with
any Alteration which changes the structure of the Building or the Building
Systems, whether or not same requires approval, Tenant shall provide Landlord
with as-built plans for same promptly following completion. Any and all
Alterations to the Premises which are constructed, installed or otherwise made
by Tenant shall be the property of Tenant until the expiration or sooner
termination of this Lease; at that time all such Alterations shall remain on the
Premises and become the property of Landlord without payment by Landlord unless,
at the time of granting its consent to the Alterations, Landlord conditioned its
consent in writing upon the restoration of the Premises to remove specified
portions of Alterations upon the termination of this Lease, in which event
Tenant will remove the specified portion of such Alterations and repair and
restore any damage to the Property.
14. MECHANIC'S LIENS.
a. Tenant covenants that it shall not (and has no authority
to) create or allow any encumbrance against the Premises, the Property, or any
part of any thereof or of Landlord's interest therein.
b. Tenant covenants that it shall not suffer or permit to be
created, or to remain, any lien or claim thereof (arising out of any work done
or services, material, equipment or supplies furnished for or at the request of
Tenant or by or for any contractor or subcontractor of Tenant, other than such
furnished by Landlord) which is or may become a lien upon the Premises, the
Property, or any part of any thereof or the income therefrom or any fixture,
equipment or similar property therein.
c. If any lien or claim shall be filed, Tenant shall within
thirty (30) days after Tenant receives notice of the filing thereof, cause the
same to be discharged of record by payment, deposit, bond or otherwise. If
Tenant shall fail to cause such lien or claim to be discharged and removed from
record within that period and such failure continues for ten (10) additional
days after notice of default from Landlord to Tenant, then, without obligation
to investigate the validity thereof and in addition to any other right or remedy
Landlord may have, Landlord may, but shall not be obligated to, contest the lien
or claim or discharge it by payment, deposit, bond or otherwise; and Landlord
shall be entitled, if Landlord so decides, to compel the prosecution of an
action for the foreclosure of such lien by the lienor and to pay the amount of
the judgment in favor of the lienor with interest and costs. Any amounts so paid
by Landlord and all costs and expenses, including attorneys' fees, incurred by
Landlord in connection therewith, together with interest at the Default Rate
from the respective dates of Landlord's making of the payment or incurring of
the cost or expense, shall constitute Additional Rent payable by Tenant under
this Lease and shall be paid by Tenant to Landlord promptly on demand.
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d. Notwithstanding anything to the contrary in this Lease or
in any other writing signed by Landlord, neither this Lease nor any other
writing signed by Landlord shall be construed as evidencing, indicating, or
causing an appearance that any erection, construction, alteration or repair to
be done, or caused to be done, by Tenant is or was in fact for the immediate use
and benefit of Landlord. Further, notwithstanding anything contained herein to
the contrary, nothing contained in or contemplated by this Lease shall be deemed
or construed in any way to constitute the consent or request on the part of
Landlord for the performance of any work or services or the furnishing of any
materials for which any lien could be filed against the Premises or the Property
or any part of any thereof, nor as giving Tenant any right, power, or authority
to contract for or permit the performance of any work or services or the
furnishing of any materials for which any lien could be filed against the
Premises, the Property or any part of any thereof.
15. NEGATIVE COVENANTS OF TENANT.
a. Prohibited Uses. Tenant will not make or permit to be made
any use of the Premises or any part thereof which would violate any of the
covenants, agreements, terms, provisions and conditions of this Lease or which
directly or indirectly is forbidden by applicable Governmental Regulation or
which may be dangerous to life, limb or property or which may invalidate any
policy of insurance carried on the Property or covering its operation.
b. Signs. Tenant shall be permitted to place such signs and
logos in, on and upon the Premises as may be permitted by applicable
Governmental Regulations, at Tenant's sole cost and expense and subject to
Tenant's compliance with applicable Governmental Regulations. Landlord agrees to
cooperate with Tenant in connection with Tenant's desire to place signs at the
Property and will assist Tenant to obtain any necessary approvals all at
Tenant's sole costs and expense.
c. Floor Load. Tenant shall not place or permit to be placed
upon any floor of the Building any item the weight of which shall exceed such
floor's rated floor load limit (presently 100 pounds per square foot in the
second floor office, 125 pounds per square foot in the second floor mechanical
area, 60 pounds per square foot on the office roof, 70 pounds per square foot on
the production area roof, 50 pounds per square foot on the warehouse roof).
16. HAZARDOUS SUBSTANCES.
a. As used in this Lease:
(i) "Hazardous Materials" means any hazardous or
toxic chemical, waste, byproduct, pollutant, contaminant, compound, product or
substance, including without limitation, asbestos, polychlorinated biphenyls,
petroleum (including crude oil or any fraction or byproduct thereof), and any
material the exposure to, or manufacture, possession, presence, use, generation,
storage, transportation, treatment, release, disposal, abatement, cleanup,
removal, remediation or handling of which is prohibited, controlled, limited or
regulated in any manner under any Environmental Laws.
(ii) "Environmental Laws" means any federal,
state or local law, ordinance, regulation, policy, order, permit, license,
decree, common law, or treaty now or
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hereafter in force regulating, relating to or imposing liability or standards
concerning materials or substances known or suspected to be toxic or hazardous
to health or safety, the environment or natural resources, including, without
limitation, regulation of releases and disposals to air, land, water and
groundwater.
(iii) "Release" or "Released" means any spill,
leak, emission, discharge or disposal of Hazardous Materials into the
environment other than pursuant to and in compliance with valid permits issued
under applicable Environmental Laws.
(iv) "Incidental Materials" means inventory,
construction materials (other than asbestos or polychlorinated biphenyls),
equipment, fixtures, fuel and similar products contained in vehicles, office,
laboratory and janitorial supplies and other materials that are or contain
Hazardous Materials, to the extent they are incidental to and reasonably
necessary for the construction, operation, maintenance and permitted uses of the
Property and are used, maintained, stored and disposed of in accordance with
applicable Environmental Laws.
b. Landlord represents, to Landlord's actual knowledge and
except as set forth in that certain Phase 1 Environmental Site Assessment Report
prepared by National Assessment Corporation dated May 12, 2003 being Project
Number 03-14142.1 (the "Report") which has been delivered to the Tenant for
review prior to the execution of this Lease, and the documents and materials
referred to therein, (i) that no part of the Premises has ever been used as a
sanitary landfill, waste dump site or for the treatment, storage or disposal of
Hazardous Materials other than Incidental Materials; (ii) no underground tanks
are present on or under the Premises; (iii) no Release of Hazardous Materials in
violation of Environmental Laws has occurred from, under or upon the Premises;
(iv) the Premises do not contain any Hazardous Materials other than Incidental
Materials; (v) Landlord has not received any notice of any action or proceeding
relating to any Hazardous Materials or Release thereof on, under or at the
Premises, and (vi) Landlord has not transported, or caused to be transported,
any Hazardous Materials other than Incidental Materials on, to or from the
Premises.
c. Landlord agrees and covenants that:
(i) To the extent any Release of Hazardous
Materials occurs at the Property, including any Release of Hazardous Materials
from or in connection with the pipeline identified in the Report and located on
the Property, other than by reason of the actions or omissions of Tenant or any
of the Tenant Parties, Landlord shall expeditiously take, or cause to be taken
in compliance with all Environmental Laws, all measures required under
applicable Environmental Laws to address the Release, including satisfying
applicable reporting requirements, containing the Release, removing and
remediating any contamination resulting from the Release. Landlord shall use
commercially reasonable efforts to perform the work recommended to be performed
at the Property as set forth in the Report, prior to the Commencement Date if
reasonably feasible, otherwise thereafter. Landlord shall take, or cause to be
taken any actions required under this subparagraph in a manner so as to
expeditiously remove and/or mitigate all threats to public health or the
environment to the extent caused by such Release, as required by Environmental
Laws. Notwithstanding the above, Landlord shall not be required (but shall have
the option) to remediate any contamination resulting from such Release beyond
that which is necessary to demonstrate attainment with a nonresidential or
site-
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specific remediation standard established pursuant to the Pennsylvania Land
Recycling and Environmental Remediation Standards Act, 35 P.S. Section 6026.101
to 6026.908 ("Act 2").
(ii) Landlord shall indemnify, defend and hold
Tenant and the Tenant Parties harmless from any claims, judgments, fines,
penalties, damages (including personal injury and related personal property),
costs, remediation costs (including any and all costs incurred in connection
with any investigations of all or any portion of the Premises or any cleanup,
removal, repair, remediation, detoxification or restoration and the preparation
of any closure or other plans required or permitted by any governmental
authority), liabilities (including sums paid in settlement of claims) or loss
relating to the Premises, including attorney's fees, consultants fees, and
expert fees which arise during or after the term of this Lease to the extent
arising from, on account of or in connection with: (A) the violation of any
Environmental Laws by Landlord or the Landlord Parties; (B) the presence, use,
generation, storage, or Release of Hazardous Materials in, on, under, or above
the Premises, arising from, on account of or in connection with the acts or
omissions of Landlord or the Landlord Parties, and (C) any violation of the
obligations of Landlord contained in this Section 16(c). Landlord hereby waives
and releases Tenant and the Tenant Parties from any and all claims, judgments,
damages, fines, penalties, costs, remediation costs, liabilities or loss
relating to the Premises, including attorney's fees, consultant fees and expert
fees which arise during or after the term of this Lease from, on account of or
in connection with (A) the violation of any Environmental Law by any person or
entity other than Tenant or the Tenant Parties, and/or (B) the presence, use,
generation, storage or Release of Hazardous Materials in, on, under or above the
Premises arising from, on account of or in connection with, whether in whole or
in part, the acts or omissions of any person or entity other than Tenant or the
Tenant Parties.
d. Tenant agrees and covenants that:
(i) Neither Tenant nor any of the Tenant Parties
will engage in activities or operations during the Term which involve the
generation, manufacturing, refining, transportation, treatment, storage,
disposal, handling or Release of Hazardous Materials on the Premises, except
that the foregoing covenant shall not prohibit Incidental Materials on the
Premises.
(ii) To the extent any Release of Hazardous
Materials occurs at the Premises by reason of the actions or omissions of Tenant
or any of the Tenant Parties, Tenant shall, at its sole cost and expense, take
all actions necessary to comply with Environmental Laws, including satisfying
applicable reporting requirements, immediately taking, or causing to be taken,
all measures necessary to contain, remove and dispose of off-site all materials
Released or contaminated by the Release, and shall remedy and mitigate, or cause
to be remedied and mitigated, all threats to public health or the environment to
the extent caused by such release. All remedial measures shall be in compliance
with all Environmental Laws; furthermore, Tenant shall expeditiously remediate
any resulting contamination at the Premises or Landlord's Remaining Property to
the extent and in the manner required to: (1) obtain cleanup liability
protection under Act 2; (2) avoid to the extent technically feasible the
imposition of any limitations on the current and/or future use or development of
the Premise; and (3) avoid to the extent technically feasible the imposition of
any disclosures within the deed for the Premises Property relating to the
presence of such Hazardous Materials.
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(iii) Tenant shall indemnify, defend and hold
Landlord and the Landlord Parties harmless from any claims, judgments, fines,
penalties, damages (including personal injury and related personal property),
costs, remediation costs (including any and all costs incurred in connection
with any investigations of all or any portion of the Premises or any cleanup,
removal, repair, remediation, detoxification or restoration and the preparation
of any closure or other plans required or permitted by any governmental
authority), liabilities (including sums paid in settlement of claims) or loss
relating to the Premises, including attorney's fees, consultants fees, and
expert fees which arise during or after the term of this Lease to the extent
arising from, on account of or in connection with: (A) the violation of any
Environmental Laws by Tenant or the Tenant Parties; (B) the presence, use,
generation, storage, or Release of Hazardous Materials in, on, under, or above
the Premises, arising from, on account of or in connection with the acts or
omissions of Tenant or the Tenant Parties, and (C) any violation of the
obligations of Tenant contained in this Section 16(d). Tenant hereby waives and
releases Landlord and the Landlord Parties from any and all claims, judgments,
damages, fines, penalties, costs, remediation costs, liabilities or loss
relating to the Premises, including attorney's fees, consultant fees and expert
fees which arise during or after the term of this Lease from, on account of or
in connection with (A) the violation of any Environmental Law by any person or
entity other than Landlord or the Landlord Parties, and/or (B) the presence,
use, generation, storage or Release of Hazardous Materials in, on, under or
above the Premises arising from, on account of or in connection with, whether in
whole or in part, the acts or omissions of any person or entity other than
Landlord or the Landlord Parties but this waiver and release shall not diminish,
supersede or eliminate Landlord's obligations under Section 16.c(i).
e. Promptly upon receipt, Landlord and Tenant will furnish one
another with copies of all (A) applications, final reports, records or other
materials submitted to, or received from, any governmental agency with respect
to the Premises relating to any applicable Environmental Laws; (B) notices of
violation, summonses, orders, complaints or other documents received by Tenant
or any of the Tenant Parties or Landlord or any of the Landlord Parties
regarding the Premises and relating to any applicable Environmental Laws or the
Release of any Hazardous Materials to the air, soil, surface water or
groundwater at or affecting the Premises; and (C) records, reports, documents or
analyses of any environmental tests pertaining to the Premises.
f. The covenants and indemnities contained in this Section 16
shall survive the termination of this Lease.
17. LANDLORD'S RIGHT OF ENTRY.
a. Tenant shall permit Landlord and the authorized
representatives of Landlord and of any mortgagee or any prospective mortgagee to
enter the Premises at all reasonable times, with prior notice to Tenant, for the
purpose of (i) inspecting the Premises or (ii) making any necessary repairs to
the Premises or to the Building and performing any work therein. During the
progress of any work on the Premises or the Building, Landlord will attempt not
to inconvenience Tenant, but shall not be liable for inconvenience, annoyance,
disturbance, loss of business or other damage to Tenant by reason of making any
repair or by bringing or storing materials, supplies, tools and equipment in the
Premises during the performance of any work,
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and the obligations of Tenant under this Lease shall not be thereby affected in
any manner whatsoever.
b. Landlord shall have the right at all reasonable times, with
prior notice to Tenant, to enter and to exhibit the Premises for the purpose of
inspection or showing the Premises in connection with a sale or mortgage and,
during the last twelve (12) months of the Term, to enter upon and to exhibit the
Premises to any prospective tenant.
c. Tenant shall have the right to retain at all times, and to
use in appropriate instances, keys to all doors within and to the Premises.
18. DAMAGE BY FIRE OR OTHER CASUALTY.
a. If any of the improvements on the Premises are damaged or
destroyed by fire or other casualty, Tenant shall promptly notify Landlord
whereupon, unless one of the parties has exercised a termination right granted
in this Section 18, Landlord shall repair, rebuild or replace such damage and
restore the Premises to substantially the same condition as the Premises were in
immediately prior to such damage or destruction; provided, however, that as long
as Landlord has maintained and kept in effect the property insurance required to
be carried by Landlord under this Lease, Landlord shall only be obligated to
restore such damage or destruction to the extent of the proceeds of fire and
other extended coverage insurance policies.
b. The repair, rebuilding or replacement work shall be
commenced promptly and completed with due diligence, taking into account the
time required by Landlord to effect a settlement with, and procure insurance
proceeds from, the insurer, and for delays beyond Landlord's reasonable control.
c. If this Lease is not terminated pursuant to Section 18(f)
below, the net amount of any insurance proceeds recovered by reason of the
damage or destruction of the Building (meaning the gross insurance proceeds
excluding proceeds received pursuant to a rental coverage endorsement and the
cost of adjusting the insurance claim and collecting the insurance proceeds)
shall be applied towards the cost of restoration. Insurance deductible costs
incurred by Landlord, up to the approved deductible, shall be reimbursed by
Tenant upon completion of repairs.
d. Landlord's obligation or election to restore the Premises
under this Section or to terminate this Lease shall shall not, in any event,
include the repair, restoration or replacement of the fixtures, furniture or any
other personal property owned, installed, made by, or in the possession of
Tenant. Landlord's obligation to restore the Premises shall be subject to the
terms of any present or future institutional mortgage encumbering the Property,
and to the mortgagee's consent if required in such mortgage, provided however
that Landlord shall in no event be excused from restoration of damage affecting
less than 25% of the Building (whether because of a mortgage or otherwise)
unless one of the parties exercises a termination right granted in Section 18(f)
below.
e. If Tenant is unable in Tenant's reasonable judgment to use
the Premises or any part thereof due to fire or other casualty, Fixed Basic Rent
shall be abated in proportion to
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the unusable portion of the Premises until such time as repairs and restoration
have been completed.
f. (i) If the Premises are damaged by fire or other casualty
such that more than 25% of the Building is reasonably expected to be unavailable
for Tenant's use for a period exceeding one hundred eighty (180) days from the
date of damage, then Tenant or Landlord may terminate this Lease by notice given
to the other within thirty (30) days after the date of damage. (ii) If the
Landlord has maintained in effect the property insurance coverage required under
this Lease and the damage is caused by a peril which is not covered by the
insurance, or if the insurance proceeds are not adequate to restore such damage,
then either party may terminate this Lease within thirty (30) days after the
damage, except that if Landlord exercises its termination right, Landlord shall
state the amount of the restoration cost which is reasonably anticipated to
exceed the available insurance proceeds and the reason therefore, and Tenant may
nullify the termination by undertaking in writing, within thirty days after
receipt of Landlord's termination notice, to cover the Landlord's cost of such
repairs to the extent that they exceed the available insurance proceeds. If the
excess restoration cost as reasonably estimated by Landlord exceeds three
months' Fixed Basic Rent, then Landlord may require reasonable evidence that
Tenant has the excess restoration costs available for reimbursement. (iii) If
the Premises are damaged by fire or other casualty during the last two years of
the Term and the damage affects more than 25% of the Building or is expected to
take more than thirty (30) days to repair, then either party may terminate this
Lease by notice given to the other within thirty days after the date of damage,
except that if Landlord exercises its termination right (pursuant to this
sentence only) at a time when Tenant has unexpired options to renew the Term,
then Tenant may nullify Landlord's termination by exercising Tenant's renewal
option within thirty (30) days after receipt of Landlord's notice of
termination. (iv) If release of insurance proceeds for restoration is subject to
mortgagee conditions and approval, then Tenant may terminate this Lease if
Landlord fails to confirm to Tenant, within sixty (60) days after the date of
damage, that the mortgagee's approval has been obtained and the insurance
proceeds have been or will be released for restoration of the Premises.
19. NON-ABATEMENT OF RENT. Except as otherwise expressly set forth in
this Lease, there shall be no abatement or reduction of the Fixed Basic Rent,
Additional Rent or other sums payable under this Lease for any cause whatsoever
and this Lease shall not terminate, nor shall Tenant be entitled to surrender
the Premises, in the event of fire, casualty or condemnation.
20. INDEMNIFICATION
a. Landlord hereby agrees to indemnify, defend and hold the
Tenant and its employees, agents and contractors harmless from any loss, costs
and damages (including reasonable attorney's fees and costs) suffered by Tenant,
its agents, employees or contractors, as a result of any claim by a third party,
its agents, employees or contractors arising from the negligence or misconduct
of Landlord or any of the Landlord Parties.
b. Tenant hereby agrees to indemnify, defend and hold the
Landlord and its employees, agents and contractors harmless from any loss, costs
and damages (including reasonable attorney's fees and costs) suffered by
Landlord, its agents, employees or contractors,
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as a result of any claim by a third party, its agents, employees or contractors
arising from the negligence or misconduct of Tenant or any of the Tenant
Parties.
c. The indemnifying party shall have the right to designate
counsel acceptable to the other party, such approval not to be unreasonably
withheld, to assume the defense of any such third party claim on behalf of
itself and the indemnified party. The indemnified party shall not have the right
to settle any claim without the consent of the indemnifying party. This
indemnity shall survive the expiration of the Term or earlier termination of
this Lease.
21. EMINENT DOMAIN
a. Total or Partial Taking. In the event of exercise of the
power of eminent domain whereby:
(i) such portion of the Property is taken that
access to the Premises is permanently impaired thereby and in Tenant's
reasonable judgment reasonable alternate access will not be available by the
time the impairment takes effect; or
(ii) more than ten percent (10%) of the parking
spaces are taken and cannot be otherwise replaced at the Premises, or
(iii) or more than ten percent (10%) of the square
footage of the Building is taken;
then Tenant, shall have the right to terminate this Lease as of the date set
forth in Tenant's notice of termination to Landlord, which date shall be no
later than the date when possession of that part which was taken is required to
be delivered or surrendered to the condemning authority and no earlier than the
anticipated date of such delivery or surrender; and in such case all Fixed Basic
Rent and other charges shall be adjusted to the date of termination. A "taking"
as such term, is used in this Section 21 shall include a transfer of title or of
any interest in the Property by deed or other instrument in settlement of or in
lieu of transfer by operation of law incident to condemnation proceedings.
b. Temporary Taking. Notwithstanding anything hereinabove
provided, in the event of a taking of only the right to or for possession of the
Premises for a fixed period of time or for the duration of an emergency or other
temporary condition, then this Lease shall continue in full force and effect but
Fixed Basic Rent and Additional Rent shall xxxxx for the duration, and to the
extent of, Tenant's dispossession. The above notwithstanding, if any such
temporary taking is reasonably anticipated to continue for a period in excess of
one hundred eighty (180) days, Tenant shall have the right to terminate this
Lease upon ten (10) days written notice to Landlord.
c. Tenant's Waiver. Regardless of whether this Lease shall
terminate, Tenant shall have no right to participate or share in any
condemnation claim, damage award or settlement in lieu thereof with respect to
any taking of any nature; provided, however, that Tenant shall not be precluded
from claiming or receiving payment for Tenant's relocation and moving expenses
and the value of Tenant's leasehold improvements and fixtures as may be
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permitted under applicable law, except to the extent that the cost of same was
funded in whole or in part by Landlord.
22. QUIET ENJOYMENT. Tenant, upon paying the Fixed Basic Rent,
Additional Rent and other charges herein required and observing and keeping all
covenants, agreements and conditions of this Lease, shall quietly have and enjoy
the Premises during the Term without hindrance or molestation by anyone claiming
by or through Landlord, subject, however, to the exceptions, reservations and
conditions of this Lease.
23. ASSIGNMENT AND SUBLEASE.
a. As long as Tenant is operating for the Permitted Use in at
least 30% of the Building, Tenant may sublease up to seventy percent (70%) of
the Building at any time and from time to time, on such terms and conditions as
Tenant may elect, subject to the terms of this Lease. Upon execution and
delivery of a sublease, Tenant shall notify Landlord of the subtenant's name,
its use, and the portion of the Building subleased.
b. "Affiliate" shall mean any entity (and the word entity as
used herein shall mean any natural individual and any corporation, partnership,
limited liability company or other entity) which acquires all or substantially
all of the shares of Tenant, any entity owned in whole or in part by Tenant, and
any entity under common control with Tenant. Tenant may assign this Lease to any
Affiliate or to any entity which acquires all or substantially all of the assets
of Tenant at the Premises, as long as, if the assignee is not a public company,
either (i) the assignee is an entity which issues audited financial statements
prepared in accordance with generally accepted accounting principles separate
from any parent entity or (ii) the parent entity or other entity acceptable to
Landlord guarantees this Lease. In addition, the transfer of Tenant shares as
part of a public offering, the transfer of Tenant shares among existing
shareholders, their families and heirs and trusts for the benefit of such
shareholders, the transfer of Tenant shares on a publicly traded exchange, and
the transfer of up to an aggregate of 49% of Tenant shares to outsiders in a
private transaction shall be freely permitted.
c. Transfer of Tenant's rights other than pursuant to Sections
23(a) and 23(b) are referred to herein as "Third Party Transfers." If Tenant
proposes a Third Party Transfer, Tenant shall first give written notice of its
intent to Landlord, setting forth the target date for the proposed assignment or
sublease and the amount of space involved in the case of a sublease. Tenant
shall furnish to Landlord the identity of the transferee, the space involved and
the proposed use. Landlord shall have a period of fifteen(15) days after the
receipt of Tenant's notice within which to give Tenant written notice of
Landlord's election to terminate the Lease. If Landlord elects to terminate, the
termination shall take effect as of the target date for the proposed assignment
or sublease as set forth in Tenant's notice to Landlord.
d. If Landlord elects not to terminate this Lease pursuant to
Section 23(c), Tenant shall provide written notice of any Third Party Transfer
to Landlord prior to the effective date of any such Third Party Transfer,
setting forth the identity of the transferee, the proposed use, the space
involved and plans for layout and partitioning of space in the case of any
sublease. Tenant shall provide to Landlord such financial statements and other
information reasonably
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requested by Landlord in connection with the proposed Third Party Transfer which
information may be considered by Landlord in connection with its approval or
rejection of the Third Party Transfer. The proposed Third Party Transfer shall
be subject to Landlord's approval, which shall not be unreasonably withheld,
delayed or conditioned, provided however that at Landlord's option Landlord may
condition its consent to any proposed Third Party Transfer on the execution of
an amendment to this Lease, effective as of the date of the Third Party
Transfer, deleting, as to any then unexercised Tenant options or rights, Article
37 (captioned Renewal Option), Article 38 (captioned Right to Expand) and/or
Article 41 (captioned Right of First Offer to Purchase). Landlord shall respond
to Tenant requests within thirty (30) days after receipt of Tenant's request
accompanied by the information required herein.
e. In the case of any assignment of this Lease, the assignee
shall assume, by written instrument, all of the obligations of the Tenant as
provided by this Lease, and an original executed counterpart of such assumption
agreement shall be furnished to the Landlord within ten days after the effective
date of the assignment. Any sublease shall expressly acknowledge that said
subtenant's rights against Landlord shall be no greater than those of Tenant.
f. The Tenant and each assignee shall be and remain liable for
the observance of all the covenants and provisions of this Lease, including, but
not limited to, the payment of Fixed Basic Rent and Additional Rent reserved
herein, through the entire Term, as the same may be renewed, extended or
otherwise modified.
g. In any event, the acceptance by the Landlord of any rent
from the assignee or from any of the subtenants or the failure of the Landlord
to insist upon a strict performance of any of the terms, conditions and
covenants herein shall not release the Tenant herein, nor any assignee or
subtenant, from any and all of the obligations to be performed by it in
accordance herewith during and for the entire Term.
h. Tenant shall pay to Landlord up to one Thousand Five
Hundred Dollars ($1,500.00) to cover the legal costs and fees it incurs in
connection with a consent to any sublet or assignment.
i. Without limiting any of the provisions of this Section 23,
if pursuant to the Federal Bankruptcy Code (herein referred to as the "Code"),
or any similar law hereafter enacted having the same general purpose, Tenant is
permitted to assign this Lease notwithstanding the restrictions contained in
this Lease, adequate assurance of future performance by an assignee expressly
permitted under such Code shall be deemed to mean the deposit of cash security
in an amount equal to the sum of one year's Fixed Basic Rent, which deposit
shall be held by Landlord for the balance of the Term, without interest, as
security for the full performance of all of Tenant's obligations under this
Lease, to be held and applied in the manner specified for any security deposit
required hereunder.
j. Except as specifically provided above, Tenant shall not
assign this Lease or sublet all or any portion of the Premises. Tenant shall not
mortgage, sublease, transfer this Lease, the Premises or the Tenant's interest
therein, nor shall Tenant pledge its interest in this Lease or in any security
deposit required hereunder without in each instance Landlord's prior written
consent.
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24. SUBORDINATION. At the request of Landlord or Landlord's mortgagee,
Tenant shall enter into an agreement pursuant to which this Lease and Tenant's
rights under this Lease shall be subject and subordinate at all times in lien
and priority to any first mortgage hereafter placed upon the Property, and to
all renewals, modifications, consolidations and extensions thereof, in form and
content reasonably acceptable to Landlord's mortgagee, provided, however that
such agreement shall contain provisions mutually acceptable to Tenant and such
lender under which any holder of such lien or mortgage agrees not to disturb the
use and occupancy of the Premises in accordance with the terms of this Lease
upon any foreclosure or other acquisition of Landlord's rights in the Lease.
Landlord agrees to cause its current mortgage lender to execute and deliver to
Tenant a subordination, non-disturbance and attornment agreement in a form
mutually acceptable to both Tenant and such lender.
25. CURING DEFAULTS. If either party defaults in the performance of any
of its obligations under this Lease, the other party may, without any obligation
to do so and in addition to any other rights it may have in law or equity, elect
to cure such default on behalf of the defaulting party after written notice as
provided elsewhere in this Lease (except in the case of emergency) to the
defaulting party. The defaulting party shall reimburse the other party upon
demand for any sums paid or costs incurred in curing such default, including
interest thereon at the Default Rate from the respective dates of the curing
party's making the payments and incurring such costs, provided however that if
Tenant cures a Landlord obligation for which Tenant was obligated to pay (as for
example, the premiums for property insurance), then to the extent Tenant was
obligated to make payment under this Lease, Tenant may not recover its
expenditure from Landlord.
26. SURRENDER.
a. At the expiration of the Term or earlier termination of
this Lease, Tenant shall promptly yield up the Premises and all Alterations
thereto, and all Building operating fixtures and equipment in a condition which
is clean of garbage and debris and broom clean and in the same condition, order
and repair in which they are required to be kept throughout the Term, ordinary
wear and tear and damage by fire or other casualty excepted.
b. If Tenant, or any person claiming through Tenant, continues
to occupy the Premises after the expiration of the Term or earlier termination
of this Lease or any renewal thereof without prior written consent of Landlord,
the tenancy under this Lease shall become, at the option of Landlord, expressed
in a written notice to Tenant and not otherwise, a tenancy from month-to-month,
terminable by Landlord on thirty (30) days prior notice, under the same terms
and conditions set forth in this Lease; (ii) the Fixed Basic Rent for each month
or portion thereof during such continued occupancy shall be one hundred fifty
percent (150%) of the Fixed Basic Rent for the last month of the Term. Anything
to the contrary notwithstanding, any holding over by Tenant without Landlord's
prior written consent shall constitute an Event of Default under this Lease and
shall be subject to all the remedies set forth in Subsection 27(b) of this
Lease.
27. DEFAULTS-REMEDIES.
a. Tenant Defaults. It shall be an Event of Default by Tenant
under this Lease if any one or more of the following events occurs:
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(i) Tenant fails to pay any and all installments
of Fixed Basic Rent and such failure continues for fifteen (15) days following
written notice from Landlord to Tenant.
(ii) Tenant fails to pay any and all Additional
Rent or any other charges or payments due and payable under this Lease whether
or not herein included as rent and such failure continues for twenty (20) days
following written notice from Landlord to Tenant.
(iii) Tenant fails to maintain liability insurance
for the benefit of Tenant and Landlord as required this Lease and such failure
continues for twenty (20) days following written notice from Landlord to Tenant.
(iv) Tenant fails to furnish an estoppel
certificate within the time required under Section 35 of this Lease and such
failure continues for ten (10) days following a second written request from
Landlord to Tenant.
(v) Tenant violates, fails to perform or
otherwise breaches any agreement, term, covenant or condition contained in this
Lease (other than as described in Subsections 27(a)(i) - 27(a)(iv) above) and
such failure continues for thirty (30) days following notice from Landlord to
Tenant, provided however that if such failure is capable of cure but cannot
reasonably be cured within thirty (30) days, then it shall not be an Event of
Default as long as Tenant commences to cure and proceeds with diligence until
the failure is cured.
(vi) Tenant makes an assignment for the benefit
of creditors or files a petition in bankruptcy or for reorganization or for an
arrangement with creditors under any federal or state law (in each case, a
"Bankruptcy Proceeding"), or a Bankruptcy Proceeding is filed against Tenant and
is not stayed, dismissed or discharged within ninety (90) consecutive days.
(vii) Any of the events enumerated in Subsection
(a)(vii) of this Section 27 happens to any guarantor of this Lease.
b. Landlord Remedies. Upon the occurrence of an event of
default under this Lease, Landlord shall have all of the following rights:
(i) With respect to defaults in the payment of
Fixed Basic Rent, Landlord may charge a late payment charges and/or interest at
the Default Rate pursuant to Section 8 of this Lease. If Landlord incurs a late
charge in connection with any payment which Tenant has failed to make within the
times required in this Lease, Tenant shall pay Landlord, in addition to such
payment due, the full amount of such late charge incurred by Landlord. Nothing
in this Lease shall be construed as waiving any rights of Landlord arising out
of any default of Tenant, by reason of Landlord's imposing or accepting any such
late charge(s) and/or interest; the right to collect such late charge(s) and/or
interest is separate and apart from any rights relating to remedies of Landlord
after default by Tenant including, without limitation, the rights and remedies
of Landlord provided herein.
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(ii) Landlord may at any time and from time to
time bring one or more actions to recover amounts due from Tenant, with interest
at the Default Rate from the date due to the date full reimbursement is
received, plus Landlord's enforcement costs.
(iii) Landlord may cure Tenant's Event of Default
as elsewhere provided in this Lease.
(iv) Landlord may re-enter the Premises by any
suitable action or proceeding at law, without being liable for prosecution or
damages therefor, and Landlord may repossess and enjoy the Premises. Upon
recovering possession of the Premises after an Event of Default by Tenant,
Landlord may, at Landlord's option, either terminate this Lease or make such
alterations and repairs as may be necessary, as reasonably determined by
Landlord, in order to relet the Premises and may relet the Premises or any part
or parts thereof, either in Landlord's name or otherwise, for a term or terms
which may, at Landlord's option, be less than or exceed the period which would
otherwise have constituted the balance of the Term and at such rent or rents and
upon such other terms and conditions as in Landlord's sole discretion may seem
advisable and to such person or persons as may in Landlord's discretion seem
best; upon each such reletting all rents received by Landlord from such
reletting shall be applied as follows: first, to the payment of any costs and
expenses of such reletting, including all costs of alterations and repairs;
second, to the payment of any indebtedness other than Fixed Basic Rent,
Additional Rent or other charges due hereunder from Tenant to Landlord; third,
to the payment of Fixed Basic Rent, Additional Rent and other charges due and
unpaid hereunder; and the residue, if any, shall be held by Landlord and applied
in payment of future rent as it may become due and payable hereunder. If rentals
received from reletting during any month are less than that to be paid during
that month by Tenant, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of the Premises or the making of alterations or improvements thereto
or the reletting thereof shall be construed as an election on the part of
Landlord to terminate this Lease unless written notice of termination is given
to Tenant. Notwithstanding any such reletting without termination, Landlord may
at any time thereafter elect to terminate this Lease for such previous breach.
After obtaining possession of the Premises, Landlord shall use commercially
reasonable efforts to re-let the Premises.
(v) Landlord may terminate this Lease and the
Term without any right on the part of Tenant to waive the forfeiture by payment
of any sum due or by other performance of any condition, term or covenant
broken.
(vi) CONFESSION OF JUDGMENT FOR POSSESSION. UPON
THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER SECTION 27(a)(i) OR UPON THE
EXPIRATION OF THE TERM OF THIS LEASE, FOR THE PURPOSE OF OBTAINING POSSESSION OF
THE PREMISES, TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR
ELSEWHERE, AS ATTORNEY FOR TENANT AND ALL PERSONS CLAIMING UNDER OR THROUGH
TENANT, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST TENANT FOR POSSESSION OF THE
PREMISES, AND AGAINST ALL PERSONS CLAIMING UNDER OR THROUGH TENANT, IN FAVOR OF
LANDLORD, FOR RECOVERY BY LANDLORD OF POSSESSION THEREOF, FOR WHICH THIS
AGREEMENT OR A COPY HEREOF
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VERIFIED BY AFFIDAVIT, SHALL BE A SUFFICIENT WARRANT; AND THEREUPON A WRIT OF
POSSESSION MAY IMMEDIATELY ISSUE FOR POSSESSION OF THE PREMISES, WITHOUT ANY
PRIOR WRIT OR PROCEEDING WHATSOEVER AND WITHOUT ANY STAY OF EXECUTION. IF FOR
ANY REASON AFTER SUCH ACTION HAS BEEN COMMENCED THE SAME SHALL BE TERMINATED AND
THE POSSESSION OF THE PREMISES REMAINS IN OR IS RESTORED TO TENANT, LANDLORD
SHALL HAVE THE RIGHT UPON THE OCCURRENCE OF ANY SUBSEQUENT EVENT OF DEFAULT
UNDER SECTION 26(a)(i) TO CONFESS JUDGMENT IN ONE OR MORE FURTHER ACTIONS IN THE
MANNER AND FORM SET FORTH ABOVE TO RECOVER POSSESSION OF SAID PREMISES FOR SUCH
SUBSEQUENT DEFAULT. NO SUCH TERMINATION OF THIS LEASE, NOR TAKING, NOR
RECOVERING POSSESSION OF THE PREMISES SHALL DEPRIVE LANDLORD OF ANY REMEDIES OR
ACTION AGAINST TENANT FOR FIXED BASIC RENT, ADDITIONAL RENT OR FOR OTHER SUMS
DUE HEREUNDER OR FOR DAMAGES DUE OR TO BECOME DUE FOR THE BREACH OF ANY
CONDITION OR COVENANT HEREIN CONTAINED, NOR SHALL THE BRINGING OF ANY SUCH
ACTION FOR RENT AND/OR OTHER SUMS DUE HEREUNDER, OR BREACH OF COVENANT OR
CONDITION NOR THE RESORT TO ANY OTHER REMEDY HEREIN PROVIDED FOR THE RECOVERY OF
RENT AND/OR OTHER SUMS DUE HEREUNDER OR DAMAGES FOR SUCH BREACH BE CONSTRUED AS
A WAIVER OF THE RIGHT TO INSIST UPON THE FORFEITURE AND TO OBTAIN POSSESSION IN
THE MANNER HEREIN PROVIDED.
c. Damages. If Landlord shall terminate this Lease after the
occurrence of an Event of Default, Tenant shall be and remain liable to Landlord
in an amount computed as follows: (A) an amount equal to the sum of all Rent
then in arrears; plus (B) all costs and expenses actually incurred by Landlord
in connection with the reletting of the Premises (other than those costs for
which Landlord is responsible under this Lease), including, without limitation,
(i) costs of reentry, repair and renovation, (ii) the value of all inducements
granted or paid to new tenants of the Premises in connection with reletting
including, without limitation, construction allowances and the value of
rent-free periods, (iii) brokers' commissions and advertising expenses, (iv) any
sheriff's, marshall's, constable's or other officials' commissions payable on
execution of any judgment against Tenant, whether chargeable to Landlord or
Tenant, and (v) attorneys' fees, cost and expenses; plus (C) interest accrued on
the aggregate of the aforesaid sums from the date each was payable (or, with
respect to sums owing under clause (C) from the date each was paid by Landlord)
until paid by Tenant (whether before or after judgment) at the Default Rate;
which sum shall be credited with (D) all rentals actually received by Landlord
during the remainder of the Term from any replacement Tenant to which the
Premises are relet.
d. Waiver of Jury Trial. IT IS MUTUALLY AGREED BY AND BETWEEN
LANDLORD AND TENANT THAT THEY HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTER-CLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE
OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OF OCCUPANCY OF THE
PREMISES OR CLAIM OF INJURY OR DAMAGE.
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e. Landlord Defaults. It shall be an event of default by
Landlord under this Lease if any one or more of the following events occurs:
(i) Landlord fails to maintain property
insurance as required under this Lease and such failure continues for twenty
(20) days following written notice from Tenant to Landlord.
(ii) Landlord fails to substantially complete the
Site Work required under Section 3(a) within thirty (30) days following the
Commencement Date.
(iii) Landlord fails to respond to a request by
Tenant under Section 23(d) regarding Third Party Transfers or Section 13(c)
regarding proposed Alterations within the time set forth in the applicable
Section and such failure continues for ten (10) days following a second request
from Tenant to Landlord.
(iv) Landlord violates, fails to perform or
otherwise breaches any agreement, term, covenant or condition contained in this
Lease and such failure continues for thirty (30) days following notice from
Tenant to Landlord, provided however that if such failure is capable of cure but
cannot reasonably be cured within thirty (30) days, then it shall not be an
event of default as long as Landlord commences to cure and proceeds with
diligence until the failure is cured.
f. Tenant Remedies. Upon the occurrence of an event of default
under this Lease by Landlord, Tenant shall have all of the following rights:
(i) Tenant may at any time and from time to time
bring one or more actions to recover amounts due from Landlord, with interest at
the Default Rate from the date due to the date full reimbursement is received,
plus Tenant's enforcement costs.
(ii) Tenant may cure Landlord's event of default
as elsewhere provided in this Lease.
(iii) With respect to an event of default arising
out of Landlord's failure to disburse the Improvement Allowance in accordance
with the terms of the Work Letter, Tenant may upon written notice to Landlord
setoff against its obligation to pay Fixed Basic Rent hereunder the amounts of
Improvement Allowance not so disbursed upon which Landlord shall have no further
obligation to disburse the amount of the Improvement Allowance setoff against
Tenant's obligation to pay Fixed Basic Rent.
(iv) With respect to an event of default
described in Section 27(e)(ii) above, Tenant shall be entitled to an abatement
of Fixed Basic Rent equal to twenty five percent (25%) of the Fixed Basic Rent
otherwise due following such event of default until such time as Landlord
substantially completes the Site Work. Furthermore, in such event and during the
period of such event of default, Landlord, at its cost, shall provide
alternative parking and transportation services in order to provide parking
capacity approximately the same as that which will be provided by the Site Work.
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g. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to either party is intended to be exclusive of any
other right or remedy provided herein or by law, but each shall be cumulative
and in addition to every other right or remedy given herein or now or hereafter
existing at law or in equity or by statute.
h. Consequential, Indirect, or Punitive Damages.
Notwithstanding anything to the contrary stated herein, in no event shall either
party be entitled to consequential, indirect or punitive damages in any action
arising in connection with this Lease.
28. BROKER'S COMMISSION. Landlord and Tenant represent and warrant to
one another that the Broker (as defined in the Preamble) is the sole broker with
whom Landlord and Tenant has dealt in bringing about this Lease. The fees of the
Broker named in the Preamble shall be paid by the Landlord in accordance with
separate written agreements with the Broker. Landlord and Tenant agree to
indemnify and hold one another harmless from any and all claims of other brokers
or other intermediaries claiming entitlement to a commission or fee by reason of
dealings with the indemnifying party. Notwithstanding the foregoing, the parties
acknowledge that Xxxxxxx and Xxxxxxxxx of Pennsylvania, Inc. ("C&W") has been
involved in the sale of the Property to Landlord, and that Tenant has no
liability to C&W or to Landlord with respect to C&W.
29. NOTICES. All notices or demands required or permitted hereunder
from either party which either demands the other party to undertake an act, or
to cease an act, or to make a payment of money within a given time period, or
calls the other party in default of this Lease (in any case, a "Major Notice"),
shall be in writing and sent by United States certified mail, return receipt
requested, postage prepaid, or by recognized overnight courier, addressed as
follows:
If to Tenant:
Animas Corporation
(at the Premises after the Commencement Date, and until then at)
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxxxx X. Xxxxxxxx
with a copy of default notices to:
Xxxxxxxx X. Xxxxx, Esquire
0000 Xxx Xxxx Xxxx
Xxxxxxxx, XX 00000
If to Landlord:
c/o Berwind Property Group, L.P.
000 Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: General Counsel
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with a copy of default notices to:
Xxxxxxx X. Xxxxx, Esquire
Xxxxxx Xxxxxxxx LLP
3000 Two Xxxxx Square
Eighteenth and Xxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Any other request or correspondence may be given in writing by any such other
means as such party desires, effective upon receipt by the addressee, but Major
Notices shall not constitute notice for purposes of this Lease unless given in
the manner prescribed above. Either party may at any time, in the manner set
forth for giving notices to the other, specify a different address to which
notices to it shall thereafter be sent. Notices given by messenger delivery or
overnight courier shall be effective upon delivery; notices given by certified
mail, return receipt requested shall be effective upon receipt or rejection of
receipt by the addressee.
30. INABILITY TO PERFORM.If either party is delayed or prevented from
performing any of its obligations under this Lease by reason of strike, labor
troubles, or any cause whatsoever beyond that party's control, the period of
such delay or such prevention shall be deemed added to the time herein provided
for the performance of any such obligation, provided, however that nothing
herein shall be deemed to extend any time periods giving rise to a right of
termination or rent abatement such as those set forth in Section 11, Section 18
and Section 27.f(iv), and further provided that Tenant's obligation to pay Fixed
Basic Rent shall commence no later than six (6) months after the actual Delivery
Date.
31. SURVIVAL. Notwithstanding anything to the contrary contained in
this Lease, the expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party from its obligations accruing prior to the
expiration of the Term.
32. FINANCIAL STATEMENTS. Upon Landlord's written request no more
frequently than once each year, Tenant shall deliver to Landlord Tenant's most
recent annual audited financial statements which shall be prepared in accordance
with generally accepted accounting principles consistently applied. Landlord
shall keep all financial statements delivered to it confidential but shall be
permitted upon written notice to Tenant to deliver same to its lender(s), as
well as prospective lenders or purchasers of all or a portion of the Property or
Landlord's interest therein so long as such parties receiving such information
agree to keep same confidential. Notwithstanding the foregoing, if and when
shares in the Tenant are publicly traded, Landlord shall no longer be required
to maintain such confidentiality and provided the financial statements described
herein are readily available to the public, Tenant shall not be required to
provide same upon Landlord's request. Further, if as a result of acquisition by
another entity separate financial statements are no longer available for Tenant
at a time when Tenant's shares are not publicly traded, the requirement for the
Tenant to deliver financial statements under this Section 32 shall terminate if
this Lease is guaranteed by the acquiring entity or other entity acceptable to
Landlord.
33. WAIVER OF INVALIDITY OF LEASE. Each party agrees that it will not
raise or assert as a defense to any obligation under the Lease or make any claim
that the Lease is invalid or
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unenforceable due to any failure of this document to comply with ministerial
requirements including, without limitation, requirements for corporate seals,
attestations, witnesses, notarizations or other similar requirements and each
party hereby waives the right to assert any such defenses or make any claim of
invalidity or unenforceability due to any of the foregoing.
34. SECURITY DEPOSIT.
a. On or before July 31, 2003 Tenant shall deposit with
Landlord, and shall thereafter maintain in effect through a date which is ninety
(90) days following the expiration of the Term, as same may be extended, a
letter of credit in the amount of the Security Deposit, in the form attached
hereto as Exhibit F (the "Letter of Credit") or such other form as may be
approved by Landlord, which approval shall not be unreasonably withheld so long
as it is generally consistent with the form attached. Landlord shall hold the
Letter of Credit as security for the full performance by Tenant of all terms,
covenants and conditions of this Lease. Upon the occurrence of an Event of
Default by Tenant involving the failure to pay money, Landlord may draw upon the
Letter of Credit in the amount owed by Tenant. It is understood that the
proceeds of the Letter of Credit are not to be considered as the last rental due
under this Lease. If at any time during the Term of this Lease, Landlord draws
against the Letter of Credit in whole or in part in order to cure an Event of
Default, Tenant shall within ten (10) business days after demand by Landlord
tender to Landlord a replacement Letter of Credit in the full amount required
hereunder. If the Term is then continuing, and Landlord has received notice from
the banking institution issuing the Letter of Credit that the Letter of Credit
will not be renewed, Tenant shall deliver to Landlord a replacement Letter of
Credit no later than twenty (20) days after Landlord's receipt of such notice.
If Tenant shall fail to timely deliver a replacement Letter of Credit as
aforesaid, then Landlord shall be entitled to draw immediately under the Letter
of Credit in Landlord's possession, and shall hold the funds so drawn as a cash
security deposit.
b. The initial amount of the Security Deposit, as set forth in
the Basic Lease Provisions and Definitions in the Preamble of this Lease, shall
be reduced to the sum of $250,000 at such time as Tenant has achieved three (3)
consecutive quarters of profitability, as demonstrated by Tenant's quarterly
financial statements prepared in accordance with generally accepted accounting
principles and certified by Tenant's chief financial officer. In such event
Landlord shall cooperate with Tenant in connection with such reduction,
including confirming its acceptance of the applicable amendment to the Letter of
Credit.
c. The Letter of Credit (or cash if the Security Deposit is
held in cash) shall be returned to Tenant no later than thirty (30) days after
expiration of the Term and surrender of the Premises. If Landlord shall fail to
refund the Security Deposit or surrender the then Current Letter of Credit
within thirty (30) days after Tenant's request, then in the case of a cash
Security Deposit Tenant shall be entitled to recover from Landlord, in addition
to the Security Deposit, interest at the Default Rate from the date due to the
date the cash is received by Tenant, and in the case of the Letter of Credit,
Tenant shall be entitled to recover from Landlord Interest at the Default Rate
for the period of such delay in receiving the original Letter of Credit back
from Landlord.
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d. Landlord shall be responsible for any bank fees associated
with the transfer of the Letter of Credit to a successor owner of the Property
in connection with the sale of the Property and the assignment of this Lease.
35. ESTOPPEL CERTIFICATE. Tenant shall from time to time, within ten
(10) days after Tenant's receipt of Landlord's written request or that of any
mortgagee of Landlord, execute and deliver to Landlord a written instrument,
substantially in the form attached hereto as Exhibit D (the "Tenant Estoppel
Certificate"), stating such exceptions to the contents thereof as may be
applicable.
36. MISCELLANEOUS.
a. Required Approval. The submission of this Lease for
examination does not constitute an offer to lease, or a reservation of or option
for the Premises, and this Lease becomes effective only upon execution and
delivery thereof by both Landlord and Tenant.
b. Non Waiver. The failure of either party hereto in any one
or more instances to insist upon the strict performance of any one or more of
the agreements, terms, covenants, conditions or obligations of this Lease, or to
exercise any right, remedy or election herein contained, shall not be construed
as a waiver or relinquishment of the right to insist upon such performance or
exercise in the future, and such right shall continue and remain in full force
and effect with respect to any subsequent breach, act or omission.
c. Partial Payment. No payment by Tenant or receipt by
Landlord of a lesser amount than the correct Fixed Basic Rent or Additional Rent
due hereunder shall be deemed to be other than a payment on account, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment be deemed to effect or evidence an accord and satisfaction and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
d. Entire Agreement. This Lease constitutes the entire
agreement between the parties relating to the subject matter contained herein.
Neither party hereto has made any representations or promises to the other
except as expressly contained herein. This Lease supersedes all prior
negotiations, agreements, informational brochures, letters, promotional
information and other statements and materials made or furnished by Landlord or
its agents. No agreement hereinafter made shall be effective to change, modify,
discharge or effect an abandonment of this Lease, in whole or in part, unless
such agreement is in writing and signed by the party against whom enforcement of
the change, modification, discharge or abandonment is sought.
e. Partial Invalidity. If any of the provisions of this Lease,
or the application thereof to any person or circumstances, shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
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f. Choice of Law. This Lease has been executed and delivered
in the Commonwealth of Pennsylvania and shall be construed in accordance with
the laws of the Commonwealth of Pennsylvania. Any action brought to enforce or
interpret this Lease shall be brought in the court of appropriate jurisdiction
in the county in which the Building is located. Should any provision of this
Lease require judicial interpretation, it is agreed that the court interpreting
or considering same shall not apply the presumption that the terms hereof shall
be more strictly construed against a party by reason of the rule or conclusion
that a document should be construed more strictly against the party who itself
or through its agent prepared the same. It is agreed and stipulated that all
parties hereto have participated equally in the preparation of this Lease and
that legal counsel was consulted by each responsible party before the execution
of this Lease.
g. Recordation. At Tenant's option, the parties will execute
and acknowledge a short form memorandum of lease to be recorded at Tenant's
expense.
h. No Joint Venture. This Lease shall create only the
relationship of Landlord and Tenant between Landlord and Tenant and no estate
shall pass out of Landlord. Nothing herein is intended to be construed as
creating a joint venture or partnership relationship between the parties hereto.
i. No Third Party Beneficiaries. Notwithstanding anything to
the contrary contained herein, no provision of this Lease is intended to benefit
any party other than the signatories hereto and their permitted heirs, personal
representatives, successors and assigns, and no provision of this Lease shall be
enforceable by any other party.
j. Exhibits. All exhibits referred to in this Lease are
attached hereto and shall be deemed an integral part hereof.
k. Captions. The captions included in this Lease, whether for
sections, subsections, paragraphs, Table of Contents, Exhibits, or otherwise,
are inserted and included solely for convenience and shall not be considered or
given any effect in construing the provisions hereof, and are not to be used in
interpreting this Lease or for any other purpose in the event of any
controversy.
l. Representations. Landlord has made no representation,
agreement, condition, warranty, understanding, or promise, either oral or
written, other than as set forth herein, with respect to the Lease, the
Property, the Premises, or otherwise.
m. Gender; Plural Terms; Persons. The masculine, feminine, or
neuter pronoun shall each include the masculine, feminine, and neuter genders. A
reference to person shall mean a natural person, a trustee, a corporation, a
partnership and any other form of legal entity. All references (including
pronouns) in the singular or plural number shall be deemed to have been made,
respectively, in the plural or singular number as well, as the context may
require.
37. RENEWAL OPTION. Tenant is hereby granted two (2) options to renew
this Lease upon the following terms and conditions:
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a. At the time of the exercise of the option to renew and at
the time of the said renewal, there shall not have occurred an Event of Default
by Tenant under this Lease which remains uncured.
b. Notice of the exercise of the option shall be sent to the
Landlord in writing at least twelve (12) months before the expiration of the
Term.
c. Each renewal term shall be for a period of five (5) years,
to commence at the expiration of the preceding Term and all of the terms and
conditions of this Lease, other than the Fixed Basic Rent, shall apply during
such renewal term.
d. The annual Fixed Basic Rent to be paid during the first
renewal term shall be the fair rental value per square foot of the Premises at
the commencement of the renewal term. The annual Fixed Basic Rent to be paid
during the second renewal term shall be the fair rental value per square foot of
the Premises at the commencement of the second renewal term. Within sixty (60)
days after Tenant's notice of election to renew, the Landlord shall notify
Tenant of Landlord's opinion of the fair rental value. Should Tenant dispute
Landlord's determination, then the Tenant shall be free to, at the Tenant's sole
cost and expense, employ the services of an appraiser familiar with buildings
located within the metropolitan Philadelphia, Pennsylvania area comparable to
the Building, who shall be a member of MAI and who shall render an appraisal. If
the Landlord and the Tenant's appraiser cannot agree on the fair rental value,
Landlord shall, at Landlord's sole cost and expense, employ the services of an
appraiser familiar with buildings located with the metropolitan Philadelphia,
Pennsylvania area comparable to the Building who shall be a member of MAI and
who shall render an appraisal. If the two appraisers cannot agree on the fair
rental value, or in such case, on an independent appraiser acceptable to both,
either Landlord or Tenant may request the American Arbitration Association to
appoint such independent appraiser who shall be a member of MAI familiar with
comparable buildings in the area of the Building who shall render an appraisal,
and in such event the judgment of a majority of the three appraisers shall be
final and binding upon the parties. The parties shall share equally in the cost
of any third such independent appraiser. Pending resolution of the issue of fair
rental value, the Tenant shall pay the Landlord as of commencement of the
renewal term, the Fixed Basic Rent for the preceding lease year, subject to
retroactive adjustment upon final determination of this issue.
38. RIGHT TO EXPAND.
a. Landlord hereby grants to Tenant the one-time right (the
"Expansion Option") during the Term to expand the Building up to fifty thousand
(50,000) rentable square feet (but no less than thirty thousand (30,000)
rentable square feet) (the "Expansion Space") within the Expansion Space Area
shown on Exhibit G attached to this Lease, in accordance with plans and
specifications for same (the "Expansion Improvements Plans") approved by Tenant
and Landlord and all applicable governmental authorities with jurisdiction over
the Property. The Expansion Option shall not include the right to increase the
rentable square feet contained within the Building on its current footprint by
adding mezzanines or otherwise, all of which additions being subject to the
provisions of Section 13 of this Lease.
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b. The Expansion Option shall be exercised by Tenant, if at
all, by written notice (the "Expansion Exercise Notice") delivered to Landlord
at any time after the Commencement Date, provided however that if the Expansion
Exercise Notice is given at a time when fewer than six years remain in the then
current Term, the then current Term shall be extended to the last day of the
month in which occurs the fifth anniversary of the date that Tenant takes
occupancy of the improved Expansion Space (exclusive of any unexpired renewal
terms, which shall remain in effect) . The Expansion Option may only be
exercised by the named Tenant hereunder or an Affiliate assignee of the named
Tenant.
c. During the sixty (60) day period following Tenant's
Expansion Exercise Notice, Landlord and Tenant shall negotiate the details of
construction and Fixed Basic Rent for the Expansion Space. If the parties are
unable to reach agreement within said sixty (60) day period, then at its option
Tenant may, upon acquisition of necessary governmental permits and approvals,
construct its addition within the Expansion Space at Tenant's own expense
subject only to Landlord's approval of the Expansion Improvements Plans, which
approval shall not be unreasonably withheld, conditioned or delayed as long as
the addition is structurally sound with an exterior reasonably complementary to
the rest of the Building, and Tenant may occupy the Expansion Space without
increase in the Fixed Basic Rent until the expiration of the Term of this Lease,
whereupon such improvements shall become the property of Landlord without
compensation.
39. ADDITIONAL DEFINITIONS.
a. "Date of this Lease" or "date of this Lease" shall mean the
date of acceptance and execution of this Lease by the Landlord, following
execution and delivery thereof to Landlord by Tenant and that date shall be
inserted in the space provided in the Preamble.
b. "Landlord" as used in this Lease includes the Landlord
named above as well as its successors and assigns, each of whom shall have the
same rights, remedies, powers, authorities and privileges as it would have had
it originally signed this lease as Landlord. Any such person, whether or not
named herein, shall have no liability hereunder after ceasing to hold title to
the Property. Neither Landlord nor any principal of Landlord nor any owner of
the Building or the Property, whether disclosed or undisclosed, shall have any
personal liability with respect to any of the provisions of this Lease, the
Premises or the Property, and if Landlord is in breach or default with respect
to Landlord's obligations under this Lease or otherwise, Tenant shall look
solely to the equity of Landlord in the Premises for the satisfaction of
Tenant's remedies.
c. "Tenant" as used in this Lease includes the Tenant named
above as well as its successors and assigns, each of which shall be under the
same obligations, liabilities and disabilities and each of which shall have the
same rights, privileges and powers as it would have possessed had it originally
signed this Lease as Tenant. Each and every person named above as Tenant shall
be bound formally and severally by the terms, covenants and agreements contained
herein. However, no such rights, privileges or powers shall inure to the benefit
of any assignee of Tenant, immediate or remote, unless the assignment to such
assignee is permitted by the terms of this Lease or has been approved in writing
by Landlord.
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d. "Person" as used in this Lease includes a natural person, a
partnership, a corporation, an association, and any other form of business
association or entity.
e. "Rent" or "rent" as used in this Lease shall mean all Fixed
Basic Rent and Additional Rent and any other rent or other sums due under this
Lease reserved under this Lease.
40. LEASE CONTINGENCY. The obligations and rights pursuant to the terms
of this Lease shall be contingent upon Landlord or its assignee or nominee
acquiring fee simple title to the Property in accordance with the terms and
conditions of that certain Purchase and Sale Agreement by and between Berwind
Property Group, Ltd. and Danisco USA, Inc., as amended. In the event Landlord
does not acquire fee simple title to the Property on or before September 15,
2003, Tenant or Landlord may upon five (5) days prior written notice to Landlord
terminate this Lease and upon such termination all the obligations hereunder
shall cease and be of no further force or effect. Furthermore, in no event shall
the current owner of the Property be bound by the terms of this Lease.
Notwithstanding the foregoing, Landlord may not terminate this Lease as long as
the Purchase and Sale Agreement remains in effect.
41. RIGHT OF FIRST OFFER TO PURCHASE.
a. If, during the Term or any renewal or extension hereof,
Landlord intends to offer to sell the Property, or any portion thereof, to any
third party, then Landlord shall first offer to sell the Property, or the
portion it intends to offer for sale, to Tenant on terms and conditions no less
favorable than those offered or intended to be offered to third parties. This
right of first offer shall not apply to any transfer of the Property to an
Affiliate of Landlord, or to a mortgagee through foreclosure or deed in lieu of
foreclosure, and shall not be triggered by any mortgage, debt or equity
financing or refinancing of the Property, or by any transaction between Landlord
and any entity into or with which Landlord is merged or consolidated, or
transactions with any entity which controls or is controlled by Landlord or is
under common control with Landlord. If Landlord intends to offer to sell the
Property as aforesaid, Landlord shall give written notice to Tenant specifying
the terms and conditions of the proposed sale, including (i) the gross and
effective sales price, (ii) any financing offered by Landlord, (iii) any
financing which is to be assumed or taken subject to by the purchaser, and (iv)
the maximum period between execution of an agreement of sale and settlement
thereunder, which period shall not be less than ninety (90) days. Tenant shall
accept the offered terms and conditions, if at all, by giving written notice to
Landlord to that effect within thirty (30)days after Tenant's receipt of
Landlord's proposed terms and conditions.
b. In the event Tenant does not accept the offer as set forth
in Paragraph (a) above, Landlord shall be entitled to negotiate and enter into
an agreement of sale for the sale of the Property or the designated portion
thereof to any third party at any time within one hundred and eighty (180) days
from the date of Landlord's notice to Tenant at an effective sales price not
less than ninety two percent (92%) of the effective sales price offered to
Tenant, or if higher than the 92% figure, the sales price (the "Counter Sales
Price") at which Tenant was willing to purchase the Property, if any, as set
forth in Tenant's rejection of Landlord's offer. In the event Landlord fails to
enter into such an agreement within such period at or above the greater of eight
percent (8%) below the effective sales price offered to Tenant, or the Counter
Sales Price,
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Landlord shall again be required to comply with the terms of this Section 41
however, Tenant shall only have a period of ten (10) days to either accept or
reject any such new offer.
c. If Landlord consummates the sale of the Property following
Tenant's rejection of Landlord's offer as set forth in subsections 41(a) and
41(b) above, then Tenant shall have no further right of offer and this Section
41 shall thereafter be null and void and of no further force or effect.
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Exhibit 10.12
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
Lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this agreement to be duly executed under
seal.
LANDLORD:
Date Signed: June 24, 2003
BERWIND PROPERTY GROUP, LTD.
BY: BERWIND PROPERTY GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
TENANT:
Date Signed: June 20, 2003
ANIMAS CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: President/CEO
1
Exhibit 10.12
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[This Exhibit A is a specific legal description of the premises.]
A-1
Exhibit 10.12
EXHIBIT B
SCHEDULE OF FIXED BASIC RENT
Lease Year Rate Per Foot Annual Fixed Basic Rent Monthly Installment
---------- ------------- ----------------------- -------------------
1 $ 10.75 $ 1,100,724.72 $ 91,727.06
2 $ 11.05 $ 1,131,442.68 $ 94,286.89
3 $ 11.35 $ 1,162,160.52 $ 96,846.71
4 $ 11.65 $ 1,192,878.48 $ 99,406.54
5 $ 11.95 $ 1,223,596.32 $ 101,966.36
6 $ 12.25 $ 1,254,314.28 $ 104,526.19
7 $ 12.55 $ 1,285,032.12 $ 107,086.01
8 $ 12.85 $ 1,315,750.08 $ 109,645.84
9 $ 13.15 $ 1,346,467.92 $ 112,205.66
10 $ 13.45 $ 1,377,185.88 $ 114,765.49
B-1
Exhibit 10.12
EXHIBIT C
WORK LETTER
ATTACHED TO AND MADE PART OF
OFFICE LEASE BETWEEN
BERWIND PROPERTY GROUP, LTD., AS LANDLORD,
AND ANIMAS CORPORATION, AS TENANT
This Work Letter is attached to and made part of that certain Lease
(the "Lease"), dated as of _______________ , 2003, between Berwind Property
Group, Ltd. ("Landlord"), and Animas Corporation ("Tenant") for the Premises.
Capitalized terms used herein which are not separately defined in this Work
Letter shall have the same meanings as in the Lease. In consideration of the
parties entering into the Lease and of the mutual promises and covenants
hereinafter contained, Landlord and Tenant hereby agree as follows:
ARTICLE 1
DESCRIPTION AND COORDINATION OF WORK
1.1 Tenant Work. The work to be performed by Tenant (the "Tenant's
Work") and paid from the Improvement Allowance provided by Landlord consists of
the construction of tenant improvements and the installation of fixtures,
equipment and cabling in the Premises required by Tenant for its occupancy and
any other costs incurred in the construction of the Tenant Improvements as
described in more detail in the Tenant's Final Construction Documents, as
defined in Article 3 of this Work Letter (the "Tenant Improvements").
1.2 Representatives.
a) Appointment of Representatives. Landlord and Tenant have
appointed or shall appoint representatives to act for each of them with respect
to all construction and construction related matters involving the Tenant's Work
(respectively, "Landlord's Construction Representative" and "Tenant's
Representative", and together, the "Representatives"). The Representatives shall
be available to attend regularly scheduled and special meetings with each other.
b) Tenant's Representative. Tenant's Representative will be Xx.
Xxxx Xxxxx, provided, however, Tenant may change such person from time to time,
which change shall be effective upon receipt by Landlord of written notice of
such change. During the construction of the Tenant Improvements, Tenant's
Representative shall be available for job meetings at the Premises. Tenant's
Representative shall have the authority to act on Tenant's behalf at all times
(including at all construction meetings and inspections) and to bind Tenant with
respect to issues relating to the construction of the Tenant Improvements
including, but not limited to, cost and scheduling changes, change orders and
financial matters involving items previously approved by Landlord or Tenant, as
the case may be, or any new item.
c) Landlord's Construction Representative. Landlord's
Construction Representative will be Xxxxxx Xxxxxxxx, provided, however, that
Landlord may change such person from time to time which change or changes shall
be effective upon the receipt by Tenant of written notice of such change or
changes. Landlord's Construction Representative shall be generally available at
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the Premises during the construction of the Tenant Improvements and shall
inspect the Tenant Improvements from time to time to determine compliance with
requirements of this Work Letter. Landlord's Construction Representative shall
have the authority to act on Landlord's behalf at al times and to bind Landlord
with respect to issues relating to the construction of the Tenant Improvements.
ARTICLE 2
TENANT'S PLANS
2.1 Tenant Design Professionals. Tenant will engage an architect
("Tenant's Architect") to document the design of the Tenant Improvements. Each
of the Tenant's Architect and any other design professional engaged by Tenant or
Tenant's Architect to design any aspect of Tenant's Improvements ("Tenant's
Design Professionals"), shall maintain at all times errors and omissions
professional liability insurance in an amount not less than $1,000,000 per
occurrence and $2,000,000 in the aggregate) covering any negligent act, error or
omission of such party, evidence of which shall be provided to Landlord upon
request. Tenant's Design Professionals shall also maintain Worker's Compensation
and Employer's Liability Insurance, Commercial General Liability, in
commercially reasonable amounts.
2.2 Tenant's Proposed Space Plan. Tenant shall cause to be
prepared by the Tenant's Architect and delivered to Landlord, for Landlord's
approval as described below, a space plan (the "Tenant's Proposed Space Plan")
for the construction of the Tenant Improvements. To facilitate Landlord's review
of the Tenant's Proposed Space Plan, Tenant shall forward to Landlord and
Landlord's Architect from time to time interim drafts of all or any portion of
the Tenant's Proposed Space Plan. In reviewing such partial and/or interim
Tenant's Proposed Space Plan, Landlord shall endeavor to promptly identify any
problems which would be grounds for rejection of Tenant's Proposed Space Plan
based upon the criteria applicable to rejection of Tenant's Construction
Documents by Landlord under Section 2.4 below. Landlord and Tenant will work
cooperatively so that Tenant's Architect can commence preparation of
construction documents based upon the approved Tenant's Proposed Space Plan by
the date set forth above in this Section 2.2.
2.3 Tenant's Construction Documents. Tenant shall cause to be
prepared by the Tenant's Architect and delivered to Landlord, for Landlord's
approval as described below, complete architectural drawings, specifications and
finish schedules (the "Tenant's Construction Documents") for the Tenant
Improvements, based upon Tenant's Proposed Space Plan as approved by Landlord.
The Tenant's Construction Documents, once completed and ready for submission to
Landlord for approval by Landlord under Section 2.4 below, shall, in the opinion
of Tenant's Architect, be ready to be signed and sealed by Tenant's Architect
(and, if applicable, any other Tenant Design Professionals) licensed and
registered in the Commonwealth of Pennsylvania. The Tenant's Construction
Documents shall conform with all applicable Laws and Requirements. The Tenant's
Construction Documents shall contain, at a minimum and where applicable, floor
plans, reflected ceiling plans, finish schedules and all related details and
schedules, and will show the general layout of telephone and data distribution
lines and equipment, all specialty systems and equipment. Tenant's Architect
shall provide mechanical, plumbing and electrical drawings, plans and
specifications for the Tenant Improvements and
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prepare the life safety and fire protection plans for the Tenant Improvements.
Tenant, at its cost, shall provide engineering services as necessary.
2.4 Landlord Approval of Tenant's Construction Documents
a) Standards for Approval. Within seven (7) days after receipt of
Tenant's Construction Documents for the Premises, Landlord shall give notice to
Tenant either approving or disapproving the Tenant's Construction Documents. The
applicable time period within which Landlord is required to respond to Tenant's
submissions or resubmission of Tenant's Construction Documents under this
Section 2.4 is hereinafter referred to as "Landlord's Approval Response Period".
Tenant's written request for approval of the Tenant's Construction Documents (or
portions thereof) shall include a specific reference to the applicable
Landlord's Approval Response Period. Any notice of disapproval from Landlord
shall state the specific reasons for such disapproval. Landlord shall be
obligated to approve the Tenant's Construction Documents unless the Tenant
Improvements as delineated therein (i) do not conform with all applicable
federal, state and local laws, ordinances including the Americans With
Disabilities Act and building and zoning codes, and requirements of public
authorities and insurance underwriters (collectively, "Laws and Requirements")
or Tenant's Construction Documents, as then amended (ii) would, in Landlord's
reasonable judgment, adversely affect the integrity or effectiveness of any
building system, including, without limitation, HVAC, electrical, plumbing, fire
protection, sprinkler, security or life safety systems, (iii) would impair the
structural integrity of the Building, (iv) would adversely affect the appearance
of the Building from outside the Building, (v) do not otherwise conform with the
requirements set forth in Section 2.3 above, or (vii) would, in Landlord's
reasonable opinion, create a health hazard within the Building. In the event
Landlord does not approve or disapprove Tenant's Construction Documents (or
relevant portion thereof) within the applicable Landlord's Approval Response
Period as provided above, Landlord will be deemed to have approved such plans.
Landlord's review of the Tenant's Construction Documents shall be solely for the
benefit of Landlord and may not be relied upon by Tenant or any other party as
being in conformity with any Laws or Requirements. At the expiration of the Term
or earlier termination thereof, Tenant shall not be required to remove the
Tenant Improvements.
b) Rejection of Tenant's Construction Documents by Landlord. In
the event Landlord rejects the Tenant's Construction Documents or any portion
thereof as provided in Section 2.4(a) above, Tenant shall resubmit to Landlord
the Tenant's Construction Documents or relevant portion thereof, including the
revisions required by Landlord. Landlord shall review and approve any
resubmitted plans within seven (7) days after receipt, provided they contain all
of the revisions, modifications or changes which are unacceptable to Landlord
applying the standards set forth in Section 2.4(a) above. In the event Landlord
does not approve or disapprove the revised Tenant's Construction Documents (or
relevant portion thereof) within the applicable Landlord's Plan Approval
Response Period as provided in this Section 2.4(b) (which period shall be
identified by Tenant in its transmittal letter or form accompanying such
resubmission), Landlord will be deemed to have approved such plan. The Tenant's
Construction Documents, as completed by Tenant's Architect and in the form
finally approved by Landlord are referred to hereinafter as the "Tenant's Final
Construction Documents".
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c) Tenant Changes to Tenant's Final Construction Documents.
Tenant shall not make any changes in the Tenant's Final Construction Documents
without Landlord's prior approval, which approval shall not be unreasonably
withheld or delayed. Landlord will respond to Tenant's request for approval of
any change or addition to the Tenant's Final Construction Documents within seven
(7) days after receipt of Tenant's written request therefor (which request shall
describe the change or addition in reasonable detail and shall specifically
identify the response period). Any notice of disapproval or request for
clarification sent by Landlord shall state the specific reasons for such
disapproval and/or the items to be clarified, if applicable. Landlord shall be
obligated to approve any proposed change or addition which (i) is consistent
with the quality and scope of the Tenant Improvements reflected in the existing
Tenant's Final Construction Documents, (ii) conforms with all applicable Laws
and Requirements, (iii) does not adversely affect the integrity or effectiveness
of any base Building system, (iv) does not impair the structural integrity of
the Building, (v) is not visible from the outside of the Building and (vi)
Tenant agrees that the cost of the proposed change or addition will be added to
the cost of the Tenant Work. Any notice of disapproval or request for
clarification sent by Landlord shall state the specific reasons for such
disapproval and/or items to be clarified, as applicable. Any changes to Tenant's
Final Construction Documents shall be documented (in writing by a change order
which change order sets forth the scope of the changes and the revised price)
prior to the commencement of any work reflected by such changes at the regular
job meetings and shall be communicated by Tenant's Architect to Landlord's
Construction Representative. Upon completion of the Tenant Improvements, Tenant
shall have Tenant's Architect furnish Landlord a copy of the Tenant's Final
Construction Documents with any changes made by Tenant's Architect noted
thereon, as well as copies of any CADD disks. Tenant will respond promptly to
written requests from Landlord concerning Landlord's approval rights.
2.5 Permits. Tenant, at Tenant's sole cost and expense shall file
(or cause the General Contractor to file) Tenant's Final Construction Documents
with the governmental agencies having jurisdiction and obtain all necessary
permits for same.
ARTICLE 3
PERFORMANCE OF TENANT'S WORK
3.1 Performance of Tenant Work.
a) Tenant, at its sole cost and expense, subject to Landlord's
obligation to pay the Improvement Allowances provided for herein, shall, except
as provided below, perform the Tenant Work with architects, construction
managers, general contractors, subcontractors and trade contractors of Tenant's
own choosing, subject to Landlord's prior approval thereof, such approval not to
be unreasonably withheld, conditioned or delayed. Tenant shall perform the
Tenant Work in accordance with (i) the Tenant's Final Construction Documents,
(ii) good construction practices, (iii) all Laws and Requirements and (iv) all
other requirements of this Work Letter.
b) Tenant and its contractors and subcontractors shall be solely
responsible for the transportation, storage and safekeeping of materials and
equipment used in the performance of the Tenant Work, for the removal of waste
and debris resulting therefrom on a daily basis, and
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for any damage caused by them to any portion of the Building, subject to the
insurance and waiver of subrogation provisions of this Lease.
c) In addition to any insurance which may be required under the
Lease, throughout the prosecution of the Tenant Work, Tenant shall secure, pay
for and maintain or cause Tenant's contractors to secure, pay for and maintain
insurance in the following minimum coverages and limits of liability:
1. Worker's compensation in statutory limit for the
Commonwealth of Pennsylvania, and Employer's
Liability Insurance with statutory limits.
2. Comprehensive General Liability Insurance including
Broad Form Contractual, Broad Form Property Damage
and Personal Injury, coverages.
d) At any time after the Tenant's Final Construction Documents
are approved by Landlord and thereafter throughout Tenant's prosecution of the
Tenant Work, Tenant shall be permitted to direct changes in the Tenant Work
(each a "Tenant Change Order") it being agreed, however, that Tenant must obtain
Landlord's approval before prosecuting any Tenant Change Order it being agreed
that Landlord shall either approve or reject the Tenant Change Order within
three (3) working days (i.e. Monday through Friday, and not a legal holiday).
Once approved by Landlord, a Tenant Change Order shall become part of the
Tenant's Final Construction Documents and the work shown on such Tenant Change
Order shall be part of the Tenant's Work.
e) Landlord shall reasonably cooperate with Tenant's efforts to
obtain , at Tenant's expense, any permits, certificates or final approvals in
connection with any portion of the Tenant's Work including, without limitation,
executing and delivering any documents or instruments that Landlord is required
to sign and which are reasonably required by Tenant in connection therewith.
f) Following the filing of waivers of lien by Tenant's general
contractor and any other contractor of Tenant as required by Section 14 of the
Lease in the office of the Xxxxxxx County Prothonotary, Tenant shall be
permitted upon the Property and Building and may prosecute Tenant Work. Without
limiting the generality of the foregoing, Landlord shall permit Tenant to bring
and store on the Premises all equipment, supplies and other property required or
appropriate in connection with the Tenant Work, and shall furnish temporary
power to the core of the Building. Tenant entry upon the Premises prior to the
Commencement Date for the purpose of prosecuting Tenant Work shall be upon all
of the terms and conditions of the Lease.
g) The work of Tenant's contractors shall be performed in
coordination with any work being performed by Landlord.
h) Tenant shall be responsible for (i) transportation,
safekeeping and storage of material and equipment used in the performance of the
work by its contractors, (ii) for removal of debris and waste resulting
therefrom, (iii) for defective design and work caused by its separate
contractors and (iv) for any damage caused by its separate contractors.
C-5
ARTICLE 4
IMPROVEMENT ALLOWANCE
4.1 Disbursement of Allowance. Landlord shall pay to Tenant or to
others as designated by Tenant the Improvement Allowance from time to time in
accordance with the provisions of this Article 4. Tenant shall be entitled to
the disbursement of up to one-half of the Improvement Allowance prior to the
Commencement Date which sums shall be disbursed as provided below. The balance
of Improvement Allowance will be made available to Tenant and disbursed as
provided below ten (10) days following the first Fixed Basic Rent payment made
by the Tenant to Landlord following the Commencement Date. Tenant may request
payment of the allowance applicable to such work from time to time (but not more
frequently than once a calendar month) by delivering to Landlord a disbursement
request (each, a "Disbursement Request"), each of which Disbursement Requests
shall be accompanied by (i) a certificate from Tenant's contractor and architect
that the portion of Tenant Work requested in the Disbursement Request is
complete; (ii) photocopies of invoices evidencing that the amount being
requested pursuant to such Disbursement Request has been paid or incurred by
Tenant in connection with the Tenant Work; and (iii) except in the case of the
first Disbursement Request, lien releases from Tenant's general contractor (or
construction manager, as the case may be) and from all material subcontractors,
being those in excess of $10,000, for all work and services completed by such
persons through the date of the Disbursement Request immediately preceding the
Disbursement Request in question. Provided Landlord receives such request,
together with all supporting documentation required above, on or before the 10th
day of the calendar month in which the request is made, Landlord, on or before
the 30th day of the same month, shall pay to Tenant or to others as designated
by Tenant the amount being requested in such Disbursement Request.
Notwithstanding anything to the contrary contained herein, the final
Disbursement Request shall not be paid until all of the following have occurred:
(i) the Tenant Work is Substantially Completed and invoices therefor are
presented to Landlord; (ii) Tenant provides evidence that the Tenant Work has
otherwise been paid for in full or will be paid in full upon final disbursement;
(iii) Tenant's Architect and contractor have certified substantial completion,
and Landlord has approved the Tenant Work to the extent required in this Work
Letter; (iv) if requested, Tenant shall have provided an estoppel to Landlord
and its lender in the form required by Section 35 of the Lease; (v) if required
by applicable Laws and Requirements, Tenant shall have obtained a Certificate of
Occupancy, or its equivalent from West Goshen Township and the Commonwealth of
Pennsylvania, Department of Labor and Industry for the Premises; and (viii)
Tenant has provided to Landlord final releases of liens from the contractor and
all Material Subcontractors in form and substance satisfactory to Landlord.
Landlord agrees to promptly fund the final Disbursement Request to Tenant when
Tenant becomes entitled thereto in accordance with the preceding sentence.
4.2 No Further Obligations. Tenant acknowledges and agrees that,
except for Landlord's obligation to pay the Improvement Allowance, it is
Tenant's responsibility to prepare Tenant's Final Construction Documents for the
Tenant Work, to perform Tenant Improvements and to pay the entire cost of Tenant
Work. Notwithstanding Landlord's obligation to pay the Improvement Allowance,
Landlord shall have no privity of agreement with any contractors, subcontractors
or third party vendors.
C-6
ARTICLE 5
COST OF TENANT WORK
5.1. Construction Services. Construction of the Tenant Work shall
be performed by the Tenant's Contractor and other specialty contractors under
Tenant's direction. The cost of the Tenant Work is defined to consist of: (i)
the direct cost of such construction work, plus an amount required by the
Tenant's Contractor to cover the Tenant's Contractor's field overhead (General
Conditions), plus (ii) a fee required by the Tenant's Contractor to cover the
Tenant's Contractor's fee, plus (iii) an amount equal to one percent (1%) of the
sum determined in clause (i) above, for Landlord's overhead and coordination.
Tenant shall be responsible for and pay to the parties entitled to the same that
portion of the construction of the Tenant Work including the sums determined by
clauses (i), (ii) and (iii) above attributable to construction in excess of the
Improvement Allowance. Landlord's Coordination Fee shall be payable on a
pro-rata basis with the progress of the Tenant Work, with the percentage of the
Landlord's Coordination Fee being paid in the same percentage as the Tenant Work
is completed. Tenant shall be permitted to apply the Improvement Allowance to
other costs associated with its relocation to the Premises including, but not
limited to, the satisfaction of its existing lease obligations in an amount up
to the sum of $31,300, the costs of cabling, architectural and engineering fees
and costs, moving expenses and any balance, up to the sum of One Hundred
Thousand Dollars ($100,000), may be credited against Tenant's obligation to pay
Fixed Basic Rent.
5.2 Building Services and Facilities. Any Building service,
including electric power required in connection with the construction of the
Tenant Work shall be provided to General Contractor or any of Tenant's
contractors at such contractor's cost as part of such contractor's general
conditions.
ARTICLE 6
TENANT INSTALLATIONS
6.1 Furniture, Fixtures and Equipment. Tenant shall coordinate the
installation of any furniture, furniture system, fixtures, equipment, telephone,
computer or communication system ordered or to be installed by Tenant in the
Premises, with any work in the Premises and/or the Building and shall perform or
cause such installation to be performed in such a manner as to not damage the
Building.
ARTICLE 7
NOTICES
7.1 Notices. All notices required under this Work Letter shall be
sent in the manner prescribed in Section 29 of the Lease shall be addressed to
Landlord and Tenant at the addresses provided in the Lease, and in addition to
the Representatives and Tenant's Architect at the following addresses or at such
other addresses as such parties shall designate from time to time by written
notice to the other parties:
If to Tenant' Representative:
C-7
Xx. Xxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 If to Tenant's Architect:
If to Landlord's Construction Representative:
Xxxxxx Xxxxxxxx
Vice President, Construction
Berwind Property Groupt, Ltd
0000 Xxxxxx Xxxxxx Xxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
In addition to the foregoing, Landlord and Tenant shall provide each other with
additional names and addresses of relevant parties from time to time as
necessary.
C-8
Exhibit 10.12
EXHIBIT D
TENANT ESTOPPEL CERTIFICATE
TO: ______________________.
1. The undersigned ("Tenant") is the tenant under that certain Lease dated
_______________ , 200____ , by and between _________________________("Landlord")
and Tenant, as amended by amendments dated _______________________________
(collectively, the "Lease"), covering those certain premises commonly known and
designated as 000 Xxxxxxxx Xxxxx, Xxxx Xxxxxx Xxxxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxxxxxx (the "Premises").
2. Except as referenced in paragraph 1 above, the Lease has not been amended.
The Lease is the only lease or agreement between the undersigned and the
Landlord affecting the Premises.
3. The undersigned has made no agreements with Landlord or its agents or
employees, which are not described in the Lease concerning free rent, partial
rent, rebate of rental payments or any other type of rental concession with
respect to the Lease (except as indicated following this sentence). If none,
state "none".
________________________________________________________________________________
____________________________________________________________________
4. The Delivery Date under the Lease was _________________ and the Commencement
Date of the Lease was __________, 200_. [If either of those dates has not yet
occurred, so state.] The current term of the Lease will expire on __________. No
Fixed Basic Rent payable pursuant to the Lease has been prepaid for more than
one (1) month. The Fixed Basic Rent currently being paid under the Lease is
$__________ per month. Future changes to the Fixed Basic Rent are as set forth
in the Lease.
5. The Lease is currently in full force and effect. Tenant has not received any
notice of default under the Lease which remains uncured except as follows [if
none, so state]: ____________________________________________. Tenant has not
given Landlord any notice of default under the Lease, nor to the knowledge of
Tenant is there any default by Landlord, which remains uncured except as follows
[if none, so state]: _________________________________________________. All
conditions and obligations on the part of Landlord to be fulfilled under the
terms of the Lease prior to the commencement of Tenant's obligation to pay Fixed
Basic Rent have been satisfied or fully performed including, without limitation,
all required tenant improvements, allowances, alterations, installations and
construction, and payment therefor has been made in full [or if not, state what
remains to be performed, satisfied or paid].
6. Tenant has not assigned the Lease or sublet the Premises or any portion
thereof except as follows: [if none, so state]________________________.
7. Tenant has a right of first offer to purchase the Premises as set forth in
Article 41 of the Lease. Tenant has renewal options as set forth in Article 37
of the Lease, and the right to expand the building on the Premises as set forth
in Article 38 of the Lease.
D-1
8. No voluntary actions, and to the knowledge of the signer of this Certificate
no involuntary actions, are pending against the undersigned under the bankruptcy
laws of the United States or any state thereof.
9. The Tenant notice addresses set forth in Paragraph 29 of the Lease are still
correct for the Tenant, with the following changes: If none, state "none".
________________________________________________________________________________
________________________________________________________________________________
Dated this ____ day of _________, 200_.
TENANT:
_______________________________________,
a_______________________________________
BY: __________________________________
Name:_____________________________
Title:____________________________
D-2
Exhibit 10.12
EXHIBIT E
EXISTING FF&E
FIRST FLOOR:
Reception Area: Reception Desk with switchboard and table with
four (4) chairs
Conference room off Lobby: Table and six (6) chairs
First Floor Offices, 127-133: Each office contains Desk, credenza and filing
cabinet.
First Floor "Bullpen" area: Eight (8) workstations complete with chairs and
under desk filing cabinet and small
refrigerator.
Cafeteria: Dishwasher and cabinets with sink
Lab Rooms: All cabinets and counters and ten (10) shelving
units in storage closet.
Phone Closet: Intertel Axxess phone system, Automated Sagemax
building computer and Casi-Rusco pass key
technology.
Two Conference Rooms: Each has table with ten (10) chairs and
electric drop down screen and side desk.
Warehouse: Seven (7) double rows of floor to ceiling
racking units
Maintenance Room: Miscellaneous belts and filters and equipment
Mezzanine: Miscellaneous storage shelves and cleaning
equipment and supplies.
Two Presentation Rooms: Sinks in both rooms, cabinetry in both rooms,
dishwasher in one room.
SECOND FLOOR:
Offices 202-205: Each office contains Desk, credenza and filing
cabinet.
Second Floor "Bullpen A" area: Eight (8) workstations complete with chairs and
under desk filing cabinets.
E-1
Executive Offices, 208: Wood desk and chairs with credenza, one (1)
wood filing cabinet, one (1) conference table
with six (6) chairs.
Executive Offices, 209: Wood desk and chairs with credenza and one (1)
wood filing cabinet.
Executive Administrative Area: One (1) cubicle, one (1) chair, one (1)
credenza.
Offices 210-211: Each office contains Desk, credenza and filing
cabinet and three (3) chairs.
Second Floor "Bullpen B" area: Eight (8) workstations complete with chairs and
under desk filing cabinets.
Offices 214-216: Each office contains Desk and credenza and
three (3) chairs.
Office 217 (computer room): Two (2) desks and small table and four (4)
chairs.
Office 218: Empty
Office 219-220: Each office contains Desk, credenza, filing
cabinet and three (3) chairs.
Office 221: Wood desk and chair, one (1) filing cabinet,
and one (1) credenza.
Training Room: Six (6) tables and sixteen (16) chairs,
electric drop down screen, VCR and AV system
and controls and one (1) podium.
Kitchen: Dishwasher and sink with table and four (4)
chairs.
Mechanical/Mezzanine: Miscellaneous supplies, filters and belts. Air
compressor and back-up generator.
213 Mailroom: All mail slots.
Between Rooms: One (1) black desk and one (1) small
refrigerator.
Second Floor Landing: Two (2) chairs and one (1) table.
Exhibit 10.12
EXHIBIT F
FORM LETTER OF CREDIT
To: [_______________________________]("Beneficiary") Expiration Date:
c/o [address]
Gentlemen:
We hereby open our Irrevocable Standby Letter of Credit No.
____________ in favor of ____________________________ for the account of
___________________________, having an address at __________________________, in
the aggregate amount not to exceed USD $ (United States ___________________ and
00/100 Dollars) available by Beneficiary's draft(s) drawn on us at sight. All
draft(s) must be marked "Drawn under ___________________ Bank's Letter of Credit
No. ____ dated __________________.
All drafts drawn under this Letter of Credit must be accompanied by the
original of this Letter of Credit and a statement purportedly signed by an
authorized representative of Beneficiary or its successor(s) or assign(s),
certifying that Beneficiary is entitled to draw upon this Letter of Credit in
the amount shown on the sight draft pursuant to the terms of that certain Lease
dated ____________, 2003 by and between Animas Corporation, as Tenant, and
Berwind Property Group, Ltd., as Landlord (the "Lease").
It is a condition of this Letter of Credit that it shall be deemed
automatically extended without amendment for one year from the present or any
future expiry date unless at least thirty (30) days prior to the then current
expiry date, we notify you in writing by certified mail or recognized overnight
courier that we elect not to renew this Letter of Credit for any such additional
one year period. Notices to Beneficiary shall be sent to Beneficiary at the
address listed above, to the attention of _____________________.
In any event, this Letter of Credit will not be automatically extended
beyond ____________________, which is the final Expiration Date of this Letter
of Credit.
Partial drafts and/or drawings expressly are permitted
hereunder. The amount of each draft and/or drawing shall be endorsed on the
reverse side hereof.
This Irrevocable Letter of Credit is transferable. This Letter of
Credit may be assigned by the Beneficiary, without our prior consent, to any
successor in interest of Beneficiary, including, without limitations, successors
by purchase, merger, and foreclosure, as long as the transferee has assumed the
obligations of Landlord under the Lease. [Note that we will want this to be
transferable. The lender can provide its standard assignment provision which
allows the LC to be transferred upon notice to lender] This Letter of Credit
sets forth in full the terms of our undertaking. This undertaking shall not in
any way be modified, amended, or amplified by reference to any document or
contract referred to herein or in which this Letter of Credit is referred to,
and any such reference shall not be deemed to incorporate hereby by reference
any document or instrument.
F-1
We hereby agree with you that draft(s) drawn under and in compliance
with the terms and conditions of this Letter of Credit shall be duly honored if
presented together with document(s) as specified and the original of this Letter
of Credit, at our office located at [_____________________] on or before the
above stated expiry date. Draft(s) drawn under this credit must specifically
reference our credit number.
Except as otherwise expressly stated herein, this Letter of Credit is
subject to the International Standby Practices, ICC Publication No. 590 (1998
Revision) as it exists as of the date of this issuance of this Letter of Credit,
and engages us in accordance with the terms thereof. [or updated reference per
issuing bank's standard form].
Sincerely,
[Bank]
By: _____________________________________
Authorized Officer
Name: _______________________________
Title: ______________________________
F-2
Exhibit 10.12
EXHIBIT G
SITE PLAN EXPANSION SPACE AREA
[This Exhibit G is a map of the Site Plan Expansion Space Area.]
G-1
