Exhibit 10.2
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made the 20th day of May, 1996 by and
between Xxxxx & Associates - 0 Xxxxxxx Xxxxxxx Limited Partnership, a
Pennsylvania limited partnership ("Landlord"), Pentech Infusions, Inc., a
Pennsylvania corporation ("Tenant").
BACKGROUND
By lease dated August 19, 1991 (the "Original Lease") Landlord leased to
Tenant the "Premises" described therein at 000 Xxxxxxx Xxxxxxx, Xxxxxxxx,
Xxxxxxxxxxxx 00000. The Original Lease, as amended by this First Amendment to
Lease, is hereinafter called the "Lease".
Landlord and Tenant desire to extend the term of the Original Lease, which
currently is scheduled to expire on January 31, 1997, upon the terms and
conditions hereinafter set forth.
NOW THEREFORE, Landlord and Tenant, each intending to be legally bound
hereby, agree as follows:
1. Extension of Term: Section 3 of the Original Lease is hereby amended to
extend the Expiration Date of the term of the Lease through January 31, 2000,
subject to modification as hereinafter set forth.
2. Adjustment to Base Rent: Section 5(a) of the Original Lease is hereby
amended to amend the Minimum Annual Rent, effective on August 1, 1996 (the
"Effective Date"), pursuant to the following schedule:
MINIMUM MINIMUM RENT
PERIOD ANNUAL RENT PER MONTH
August 1, 1996 - December31, 1997: $ 52,500.00 $ 4,375.00
January 1, 1998 - December 31, 1998: $ 55,500.00 $ 4,625.00
January 1, 1999 - January 31, 2000: $ 58,500.00 $ 4,875.00
3. Alterations: Tenant acknowledges that it is agreeing to extend the term
of the Original Lease without any obligation on the Landlord to retrofit or
perform any alterations to the Premises.
4. Lease Remains in Effect: AU capitalized and other terms as used herein
not otherwise defined in this Agreement shall have the meanings as set forth in
the Original Lease. Except as expressly modified hereby, the terms and
conditions of the Original Lease, including without limitation the provisions
authorizing Landlord to confess judgment against Tenant following an event of
default, remain unmodified and in full force and effect, and are hereby ratified
and confirmed as if restated in their entirety. In the event of a conflict
between the terms of the Original Lease and the Agreement, the latter shall
control.
5. Deletions: Articles 33, 34, 35 and 36 of the Original Lease are hereby
deleted.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties have
executed and delivered the First Amendment to Lease as of the day and year first
above written.
LANDLORD:
Xxxxx & Associates -0 Xxxxxxx Xxxxxxx Limited Partner
By: Liberty Property Limited Partnership,
Sole General Partner
By: Liberty Property Trust, Sole General Partner
By:
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President
TENANT:
Witness/Attset: Pentech Infusinos, Inc.
By:
------------------------- --------------------------------------------
Name: Xxxxx X. Francesco
Title: President
SECOND AMENDMENT TO AGREEMENT OF LEASE
THIS SECOND AMENDMENT TO AGREEMENT OF LEASE (this "Amendment") is by and
between BPG Industrial Partners III, L.P., whose address is 00 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx Industrial Park, New Castle, Delaware 19720 ("Landlord"),
and Pentech Infusions, Inc., a Pennsylvania corporation whose address is Xxxxx
000, 0 Xxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 ("Tenant"), with respect to
the following background:
BACKGROUND
A. Landlord (as successor in interest to Xxxxx & Associates - One Chelsea
Parkway Limited Partnership) and Tenant are parties to that certain Agreement of
Lease, dated August 19, 1991, as amended by First Amendment to Lease dated
May 20, 1996 (as amended, the "Lease"), pursuant to which Landlord leases to
Tenant, and Tenant leases from Landlord, Suite 106, containing approximately
7,500 square feet of space ("Premises"), located in the building commonly known
as 0 Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000.
B. The current expiration date of the Lease is January 31, 2000.
C. Landlord and Tenant desire to amend the Lease in order to, among other
things, extend the term of the Lease pursuant to the terms set forth below.
NOW, THEREFORE, for and in consideration of these premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant intending to be legally bound and to bind
their respective successors and assigns, hereby agree as follows:
1. Definitions. Unless otherwise specifically defined herein, all
capitalized terms in this Amendment shall have the respective meanings ascribed
to them in the Lease.
2. Extension of Term. The term of the Lease is hereby extended such that
the expiration date of the Lease shall be March 7, 2010.
3. Minimum Annual Rent
(a) Notwithstanding anything to the contrary contained in the Lease,
Tenant shall pay Minimum Annual Rent with respect to the Premises at the
following rates:
Per Square Ft. Annual Monthly
February 1, 2000 - March 7, 2000 $6.60 $49,500.00 $4,125.00
March 8, 2000 - March 7, 2001: $6.60 $49,500.00 $4,125.00
March 8, 2001 - March 7, 2002: $6.85 $51,375.00 $4,281.25
March 8, 2002 - March 7, 2003: $7.10 $53,250.00 $4,437.50
March 8, 2003 - March 7, 2004: $7.35 $55,125.00 $4,593.75
March 8, 2004 - March 7, 2005: $7.60 $57,000.00 $4,750.00
March 8, 2005 - March 7, 2006: $7.85 $58,875.00 $4,906.25
March 8, 2006 - March 7, 2007: $8.10 $60,750.00 $5,062.50
March 8, 2007 - March 7, 2008: $8.35 $62,625.00 $5,218.75
March 8, 2008 - March 7, 2009: $8.60 $64,500.00 $5,375.00
March 8, 2009 - March 7, 2010: $8.85 $66,375.00 $5,531.25
(b) So long as Tenant is not in default hereunder or under the Lease,
Landlord agrees to waive Tenant's obligation to pay Minimum Annual Rent for the
five (5)-week period commencing on February 1, 2000 and ending on March 7, 2000.
The foregoing shall not, however, be construed as a waiver of Tenant's
obligation to pay its Proportionate Share of Annual Operating Expenses or any
other sums as and when due under the Lease.
4. Termination Option. Provided that no event of default is then continuing
under the Lease and no event has occurred which, with the passage of time and/or
the giving of notice, would constitute an event of default under the Lease,
Tenant shall have the right to terminate this Lease as of March 7, 2005)
("Termination Date") by (i) delivering to Landlord written notice of Tenant's
election to terminate the Lease by not later than June 4, 2004, which notice
shall be irrevocable, and (ii) delivering to Landlord contemporaneously with
Tenant's termination notice the amount of $17,065.60, which the parties agree is
the amount, as of the Termination Date, of the unamortized portion of the
brokers commissions paid by Landlord in connection with the extension of the
term contemplated by this Amendment, and which amount, once paid, shall be
non-refundable to Tenant. If Tenant fails to satisfy the foregoing requirements
in any way, Tenant shall be deemed to have waived its right to terminate the
Lease pursuant to this Section 4. Upon proper exercise of the termination option
by Tenant, the Lease shall terminate on the Termination Date.
5. No Alterations. Tenant acknowledges that it is agreeing to extend the
term of the Lease without any obligation on Landlord to make or to pay for any
alterations or improvements to the Premises, except to the extent expressly set
forth in this Section 5. Landlord acknowledges that Tenant intends to undertake
renovations to the Premises based upon plans and specifications to be submitted
to Landlord in accordance with the Lease. Following the submission of such plans
and specifications, Landlord, at its cost and expense, shall (i) make such
repairs to the rooftop HVAC units serving the Premises as may be reasonably
necessary to place the same in good operating condition sufficient to provide
adequate air volume and temperature to heat and cool the Premises, and (ii) make
such repairs to the return and supply ductwork and/or rebalance the HVAC system
to the extent necessary to provide adequate cooling to the existing conference
room, accounting/accounts receivable area and the President's office. Tenant
agrees that Landlord shall not be required to replace and/or provide additional
HVAC units or install or make any changes to the return and supply ductwork
serving the Premises (except to the extent set forth in subsection (ii)) and
shall not be required to make any repairs to the extent necessitated by Tenant's
intended renovations to the Premises. Landlord shall also promptly replace the
rear door of the Premises leading to the ramp.
6. Brokers. Tenant covenants that it has had no dealings with any broker or
other party that would or could give rise to a claim for a broker's commission,
finder's fee or similar payment as a result of the extension of the Lease other
than Xxxxx & Xxxxx Company and Tactix Real Estate Advisors and Tenant shall
indemnify and hold Landlord harmless from any and all such claims.
7. Miscellaneous. All notices given under the Lease shall be addressed to
the parties at their respective addresses set forth above. Tenant acknowledges
that Tenant is not entitled to any free rent, rent reductions or similar
inducements under the Lease (except to the extent set forth in Section 3(b)
above) and that Tenant has no rights of set-off against amounts due under the
Lease. Time is of the essence with respect to the provisions of the Lease and
this Amendment. Except as amended or modified by this Amendment, all of the
terms, covenants, conditions and provisions of the Lease, including, without
limitation, the provisions authorizing Landlord to confess judgment against
Tenant following a default, shall remain in full force and effect and are hereby
ratified and affirmed. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
effective as of the date executed by Landlord as indicated below.
"Landlord" BPG INDUSTRIAL PARTNERS III, L.P.
By: BPG Industrial III, LLC.
its general partner
Date:__________________________ By:
-----------------------------
Xxxxxx X. Xxxxxxx, Member
"Tenant" PENTECH INFUSIONS, INC.
Date:__________________________ By:
-----------------------------
Title: President
NON-DISTURBANCE, ATTORNMENT AND
SUBORDINATION AGREEMENT
Dated: September 13, 1991
Landlord: Xxxxx & Associates -- One Chelsea Parkway Limited Partnership
Tenant: Pen-Tech Infusions, Inc.
Address of Tenant 000 Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
Date of Lease and Amendments, if any: 08/19/91
Premises: 000 Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000
The Chase Manhattan Bank (National Association) ("Mortgagee"), having an
office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. (Real Estate Finance
Counsel, 17th floor), holder of a mortgage or deed of trust (together with any
increased, future or consolidated mortgages or deeds of trust held by Mortgagee,
the "Mortgage") of the Premises and Tenant, holder of a lease (the "Lease") of a
portion thereof, hereby agree as follows:
1. Provided Tenant is not in default under the terms of the Lease, the
right of possession of Tenant to the leased premises shall not be affected or
disturbed by Mortgagee in the exercise of any of its rights under the Mortgage
or any note secured thereby, and any sale of the Premises pursuant to the
exercise of any rights and remedies under the Mortgage or otherwise shall be
made subject to Tenant's right of possession under the Lease.
2. Tenant shall attorn to Mortgagee or any purchaser of the Premises and
the Lease shall continue, in accordance with its terms, between Tenant and
Mortgagee or such purchaser (Mortgagee or such purchaser being hereinafter
sometimes called "Successor Landlord") except that (a) the provisions of the
Mortgage shell be deemed to survive and govern with respect to the disposition
of insurance proceeds or condemnation or eminent domain awards and (b)
paragraphs 3, 9, 10 and 11 hereof, and paragraph 12 hereof, if applicable, shill
modify the Lease.
3. Successor Landlord shall not be (a) liable for any act or omission of
any prior landlord (including Landlord), (b) liable for the return of any
security deposit not actually received by Successor Landlord, (c) subject to any
offsets or defenses which Tenant might have against any prior landlord
(including landlord), (d) bound by any advance payment of rent or additional
rent made by Tenant to Landlord except for rent or additional rent applicable to
the then current month, (e) bound by any amendment or modification of the Lease
made without the written consent of Successor Landlord or (f) bound to effect or
pay for any construction for Tenant's occupancy.
4. The Lease shall be subject and subordinate to the lien of the Mortgage
and to all of the terms, conditions and provisions thereof, to all advances made
or to be made thereunder, and to any renewals, extensions, modifications or
replacements thereof, including any increases therein or supplements thereto.
5. The foregoing provisions shall be self-operative. However Tenant agrees
to execute and deliver to Mortgagee or to any person to whom Tenant herein
agree, to attorn such other instrument as either shall request in order to
effectuate said provisions.
6. Tenant certifies that there are no known defaults on the part of
Landlord, that the Lease is a complete statement of the agreement of the
parties thereto with respect to the letting of the leased premise, that the
Lease is in full force and effect and that all conditions to the effectiveness
or continuing effectiveness thereof required to be satisfied at the date hereof
have been satisfied.
7. Tenant will notify Mortgagee at the aforesaid address, by registered or
certified mail, return receipt requested of any default of Landlord which would
entitle the Tenant to cancel the Lease, or xxxxx the rent payable thereunder,
and agrees that, notwithstanding any provision of the Lease, no notice of
Cancellation thereof, nor any abatement, shall be effective unless Mortgagee has
received the notice aforesaid and has failed within 30 days of the date thereof
to cure or, if the default cannot be cured within 30 days, has failed to
commence and to diligently prosecute the cure of Landlord's default which gave
rise to such right of cancellation or abatement
8. Tenant agrees that notice from Mortgagee shall have the same effect
under the Lease as notice to Tenant from the landlord thereunder and Tenant
agrees to be bound by such notice notwithstanding the existence or nonexistence
of a default under the Mortgage or any dispute with respect thereto between the
mortgagor under the Mortgage and Mortgagee.
9. Anything herein or in the Lease to the contrary notwithstanding in the
event that Mortgagee or a purchaser shall acquire title to the Premises,
Mortgagee and such purchaser shall have no obligation nor incur any liability,
beyond Mortgagee's, or purchaser's then interest, if any, in the Premises, and
Tenant shall look exclusively to such interest, if any, of Mortgagee or such
purchaser in the Premises for the payment and discharge of any obligations
imposed upon Mortgagee hereunder or under the Lease, and Mortgagee and such
purchaser are hereby released or relieved of any other liability hereunder and
under the Lease. Tenant agrees that, with respect to any money judgment which
may be obtained or secured by Tenant against Mortgagee or such purchaser, Tenant
shall look solely to the estate or interest owned by Mortgagee or such purchaser
in the Premises, and Tenant will not collect or attempt to collect any such
judgment out of any other assets of Mortgagee or such purchaser.
10. As of the date of the attornment referred to in Paragraph 2 hereof the
following provision shall be deemed inserted in the Lease, retroactively as of
the commencement of the term of the Lease, and shall prevail in the event of any
conflicts with other provisions of the Lease:
"Tenant covenants and agrees not to suffer, permit, introduce or
maintain in, on or about any portion of the Leased Premises any asbestos,
Polychiorinated biphenyls, or any other hazardous or toxic materials waste,
and substances which are defined, determined or identified as such
(including petroleum products if they are defined, determined or identified
as such) in any federal, state or local laws, rules or regulations (whether
how existing or hereafter enacted or promulgated) or any judicial or
administrative interpretation of any thereof, including any judicial or
administrative orders or judgments."
11. If the Lease provides that Tenant is entitled to expansion space
Successor Landlord shall have no obligation, or any liability for failure, to
provide such expansion space if a prior landlord, by reason of tease(s) entered
into with other tenants of the Premises, has precluded the availability of such
expansion space.
12. Additional Provisions:
[ ] See Rider attached for additional provisions.
[ ] None
13. This Agreement shall inure to the benefit of and be binding upon Tenant
and any successor or assignee of Tenant which pursuant to the provisions of the
Lease is entitled to succeed to Tenant's interest therein without consent of
Landlord, but not to any other successor or assignee unless such successor or
assignee has been previously approved by Mortgagee. Approval by Mortgage, is
dependent upon Mortgagee's evaluation of the credit and reputation of such
successor or assignee, the use and manner of use to which such successor or
assignee intends to utilize the Premises and such other conditions or
requirements as Mortgagee may reasonably impose. This Agreemant shall inure to
the benefit of and be binding upon Mortgagee and its successors and assigns,
including any purchaser of the Premises at a foreclosure sale.
Each Guarantor, if any, of Tenant's obligations under the Lease has signed
at the foot hereof, to evidence Guarantor's consent and approval to, and
agreement to be bound by, the provisions hereof.
In Witness Whereof, the parties hereto have caused this Agreement to be
duty executed as of the day and year first above written.
THE CHASE MANHATTAN BANK
(NATIONAL ASSQCIATION)
By:
-------------------(Mortgagee)
PEN-TECH INFUSIONS, INC.
Attest: ------------------(seal) (Tenant)
-------------------------------- By:
-----------------------------
Attest: ----------------(seal)(Guarantor)
-------------------------------- By:
-----------------------------
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT is made this
_______________ day of January, 2002 by and among PENTECH INFUSIONS INC., a
Pennsylvania corporation with a mailing address of Xxxxx 000, Xxx Xxxxxxx
Xxxxxxx, Xxxxxxxx, XX 00000 ("Lessee"), BPG INDUSTRIAL PARTNERS III, L.P., a
Delaware limited partnership with a mailing address of 00 Xxxxxxxxxx Xxxxxxxxx,
Xxx Xxxxxx, Xxxxxxxx 00000 ("Lessor"), and BRANCH BANKING & TRUST CO., a North
Carolina banking corporation with a mailing address of 0000 X Xxxxxx, X.X.,
Xxxxxxxxxx XX 00000 ("Bank").
Background
Lessor is the owner of certain real property located at Xxx Xxxxxxx
Xxxxxxx, Xxxxxxxx, XX 00000, Upper Chichester Township, Delaware County,
Pennsylvania, as more particularly described in Exhibit A attached hereto and
the approximately 43,200 square foot commercial flex building located thereon
(collectively, the "Property"). Lessee and Lessor executed a lease agreement
dated August 19, 1991 (the "Lease") pursuant to the terms of which Lessor agreed
to lease the Property to Lessee and Lessee agreed to lease the Property from
Lessor.
Lessor has obtained a loan (the "Loan") from Bank secured by, inter alia, a
mortgage (the "Mortgage") and an assignment of leases and rents (the "Assignment
of Leases and Rents") from Lessor to Bank encumbering the Property.
The Lessee and the Bank desire to enter into this Agreement for the
purposes of, inter alia, subordinating the Lease to the lien of the Mortgage,
providing for the Lessee to consent to the assignment of the Lease to Bank
pursuant to the Assignment of Leases and Rents and to attorn to and recognize
the Bank upon foreclosure of the Mortgage and providing for the Bank to agree
not to disturb the Lessee's right to possession under the Lease, all subject to
the terms hereof.
Agreement
NOW, THEREFORE, the patties hereto, in consideration of the mutual
covenants herein contained, and intending to be legally bound hereby, agree as
follows;
1. The Lessee agrees that the Lease and all of the estates, rights,
options, liens and charges therein contained or created thereunder are and shall
be under and subject and subordinate in all respects to the lien, operation and
effect of the Mortgage and Assignment of Leases and Rents and to any and all
renewals, modifications, consolidations, replacements and extensions thereof, to
the full extent of the principal sum of the Loan, all accrued and unpaid
interest thereon, any increase thereto, and all other costs and expenses
provided for under the Loan and secured by the Mortgage and Assignment of Leases
and Rents, as the same may be amended, renewed or extended.
2. The Bank agrees that, so long as the Lessee complies with all of the
terms, provisions, agreements, covenants and obligations set forth in the Lease,
the Lessee's right to possession of the Property shall not be disturbed or
interfered with by the Bank. To the full extent permitted under applicable law,
no foreclosure of the lien of the Mortgage or other proceeding in respect
thereof shall divest, impair, modify, abrogate or otherwise adversely affect any
interests or rights whatsoever of the Lessee to possession of the Property under
the Lease. In the event of any such adverse effect, the Bank or other purchaser
or transferee of the Property and the Lessee shall enter into a new lease with
the same terms as the Lease,
3. The Lessee agrees that it shall attorn to and recognize the Bank, as
mortgagee in possession or otherwise, the purchaser of the Property at
foreclosure sale under the Mortgage, any transferee who acquires the Property by
deed in lieu of foreclosure or otherwise, and the successors and assigns of each
of them, as the Lessee's landlord for the balance of the term of the Lease, all
in accordance with the terms and provisions of the Lease, but subject to the
provisions of Paragraph 4 hereof.
4. The Lessee agrees that the Bank or any purchaser of the Property at
foreclosure sale under the Mortgage, or any transferee who acquires the Property
by deed in lieu of foreclosure or otherwise, shall not be (a) liable for any act
or omission of the Lessor under the Lease arising prior to Bank receiving title
to the Property, including, without limitation, the completion of any
improvements or alterations required to be made to the Property by the Lessor,
(b) subject to any offsets or defenses which the Lessee may have at any time
hereafter against the Lessor, (c) bound by any rent or additional rent which the
Lessee may have paid to the Lessor for more than the current month, (d) bound by
any amendment or modification of the Lease made without the prior written
consent of the Bank or (e) liable or responsible for the retention, application
or return to the Lessee of any security deposit paid to any prior lessor
including the Lessor which has not been transferred to the Bank or any such
purchaser or other transferee.
5. The Lessee consents to the assignment of the Lease and the rents and all
other sums due thereunder to the Bank pursuant to the Assignment of Leases and
Rents as security for the Loan. In the event Bank notifies Lessee that Lessor is
in default under the Loan and requests that Lessee make all payments due under
the Lease, Lessee agrees to honor such request and thereafter send all such
payments directly to Bank as directed by such notice. The Lessor hereby
authorizes the Lessee to make such payments directly to the Bank as provided in
this paragraph 5.
6. The Lessee agrees to provide to the Bank, by Certified Mail, Return
Receipt Requested, a copy of any notice of default under the Lease served by it
upon the Lessor specifying with reasonable clarity the events constituting such
default. The Lessee further agrees that, if the Lessor shall have failed to cure
such default within the time provided for in the Lease, including, then the Bank
shall have an additional thirty (30) days within which to cure such default, in
its sole discretion, and Lessee shall accept such cure as if it had been
tendered by the Lessor.
7. The Lessee agrees that the Lease shall not be amended or modified, or,
other than pursuant to the terms thereof, renewed or extended in any manner
without, in each case, obtaining the prior written consent of the Bank. In
addition, the Lessee agrees that it shall not mortgage, assign, pledge, grant a
security interest in or otherwise encumber its leasehold interest in the
Property without, in each case, obtaining the prior written consent of the Bank.
8. This Agreement, except as otherwise specifically provided herein, shall
inure to the benefit of and be binding upon the Bank, the Lessee and the Lessor
and their respective successors and assigns, and shall be governed and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first above written.
LESSEE:
ATTEST: Pentech Infusions, Inc., a
Pennsylvania corporation
By: By:
----------------------------------- ---------------------------------
Name: Name:
Title: Title:
[EXECUTIONS CONTINUED]
LESSOR:
BPG INDUSTRIAL PARTNERS III, L.P., a
Delaware limited partnership, by its sole
general partner as follows:
WITNESSES: BPG INDUSTRIAL III, LL.C., a Delaware
limited liability company, by all of its
members as follows:
By:
--------------------------------------
Xxxxxx X. Xxxxxxx
By:
--------------------------------------
Xxxxx X. Xxxxxx
BANK:
BRANCH BANKING & TRUST CO.
By:
--------------------------------------
Name:
Title:
EXHIBIT "A"
Legal Description of Property
EXHIBIT "D"
TENANT ESTOPPEL CERTIFICATE
Please refer to the documents described in Exhibit "A" hereto (the "Lease
Documents") including the "Lease" therein described. The undersigned (the
"Tenant"), hereby certifies that it is the lessee under the Lease. Tenant hereby
further acknowledges that it has been advised that the Lease may be assigned to
a purchaser of, and/or collaterally assigned in connection with a proposed
financing secured by, the property on which the demised premises under the lease
are located, and certifies both to the landlord under the lease (the "Landlord")
and to any and all prospective purchasers (the "Purchasers") and mortgagees of
such property, including any trustee on behalf of any holders of notes or other
similar instruments, and any holders from time-to-time of such notes or other
instruments, and their respective successors and assigns (collectively the
"Mortgagees") that as of the date hereof;
1. The information set forth in Exhibit "A" hereto is true and correct;
2. Tenant is in occupancy of the demised premises and the Lease is in full
force and effect and except by such writings as are identified on Exhibit "A"
hereto, has not been modified, assigned, supplemented, or amended since its
original execution, nor are there any other agreements between Landlord and
Tenant concerning the space rented under the Lease, whether oral or written;
3. All conditions and agreements under the Lease to be satisfied or
performed by Landlord have been satisfied and performed;
4. Tenant is not in default under the Lease Documents, Tenant has not
received any notice of default under the Lease Documents, and, to Tenant's
knowledge, there are no events which have occurred that with the giving of
notice or the passage of time or both, would result in a default by Tenant under
the Lease Documents;
5. Tenant has not paid any rents or sums due under the Lease more than
thirty (30) days in advance of the date due under the Lease and Tenant has no
rights of setoff, counterclaim, concession, or other rights of diminution of any
rent or sums due and payable under the Lease except as set forth in Exhibit "A"
hereto;
6. To Tenant's knowledge, there are no uncured defaults on the part of
Landlord under the Lease Documents, Tenant has not sent any notice of default
under the Lease Documents to the Landlord, and there are no events which have
occurred that, with the giving of notice or the passage of time or both, would
result in a default by Landlord thereunder, and at the present time Tenant has
no claim against Landlord under the Lease Documents;
7. Except as expressly set forth in Part G of Exhibit "A," there are no
provisions for, and Tenant has no rights with respect to, renewal or extension
of the initial term of the Lease; terminating the term, leasing or occupying
additional space or purchasing the premises;
D-1
8. If Tenant has the right to obtain leasehold financing, then Tenant
represents that it has no right to obtain fee subordination or otherwise to
encumber the estate of the Landlord in the demised premises;
9. Tenant is in compliance with the environmental covenants set forth in
the Lease Documents;
10. Tenant is in compliance with all insurance requirements set forth in
the Lease Documents. Tenant covenants and agrees that after receipt of notice of
the sale of the Property it will promptly cause a new Certificate of Insurance
to be issued naming the new landlord and its managing agent as additional
insureds;
11. Except as set forth on Part M of Exhibit "A," no action, voluntary or
involuntary, is pending against Tenant under federal or state bankruptcy or
insolvency laws;
12. Tenant covenants and agrees promptly to notify Landlord in writing if
any certification by Tenant contained herein shall be or become untrue in any
material respect
13. The undersigned has the authority to execute and deliver this
Certificate on behalf of Tenant and acknowledges that all Purchasers will rely
on this Estoppel Certificate in purchasing the property and all Mortgagees will
rely upon this Estoppel Certificate in extending credit to Landlord or
Landlord's successors in interest; and
14. This Tenant Estoppel Certificate shall be binding upon the successors,
assigns, and representatives of the undersigned and any party claiming through
or under the undersigned and shall inure to the benefit of all Purchasers and
Mortgagees.
IN WITNESS WHEREOF, Tenant has duly executed this Certificate this 22nd day
of March, 2004.
(Name of Tenant)
-------------------------------------
(Name of Tenant)
By:
---------------------------------
Name:
Title:
EXHIBIT "A" TO TENANT ESTOPPEL CERTIFICATE
Lease Documents, Lease Terms and Current Status
A. Date of Lease: August 19, 1991
B. Parties:
1. Landlord: BPG Industrial Partners III, Li.
2. Tenant d/b/a: Pentech Infusions, Inc.
C. Premises known as: Xxxxx 000, Xxx Xxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000
D. Modifications, Assignments, Supplements or Amendments to Lease: First
Amendment dated 1/6/2000 and Second Amendment dated 5/20/96.
E.Commencement Date: Febnuary 1, 1992
F. Expiration of Current Term: March 7, 2010 with termination option on March 7,
2005, notice by June 4, 2004, termination fee of $17,065.60.
G. Right to renew, to extend, to terminate, to rent or occupy additional space
or to purchase any portion of the property: See F.
H. Security Deposit Paid to Landlord: $ None.
I. Current Fixed Minimum Rent (Annualized): $57,000.00
J. Current Additional Rent (and if applicable, Percentage Rent (Annualized):
$26,856.00
K. Current Total Rent: $83,856.00
L. Square Feet Demised: 7,500
M. Tenant's Bankruptcy or other Insolvency Actions: None.
