6/20/97 EXHIBIT 10.25
AGREEMENT OF LEASE
BETWEEN
MARAVE ASSOCIATES, L.P.
AS LANDLORD
AND
CELL PATHWAYS, INC.
AS TENANT
LEASE
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LEASE made this 20TH day of JUNE, 1997, by and between MARAVE ASSOCIATES,
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L.P. (hereinafter called "LANDLORD"), and CELL PATHWAYS, INC., a Delaware
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Corporation (hereinafter called "TENANT").
WITNESSETH, THAT:
1. DEMISED PREMISES. Landlord, for the term and subject to the
provisions and conditions hereof, leases to Tenant, and Tenant accepts from
Landlord, the space (hereinafter referred to as the "DEMISED PREMISES") and more
particularly described by the area on the floor plans annexed hereto as EXHIBIT
"A" consisting of approximately 40,000 rentable square feet on the GROUND floor
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of the building (hereinafter referred to as the "BUILDING") known as the TWO
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ELECTRONIC DRIVE located in HORSHAM, PA to be used by Tenant for the purpose of
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GENERAL OFFICES AND BIOLOGY AND CHEMISTRY LABS FOR RESEARCH AND DEVELOPMENT and
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for no other purpose.
2. TERM. Tenant shall use and occupy the Demised Premises for a term
of TEN (10) YEARS AND ZERO (0) MONTHS commencing on the 15TH day of JULY, 1997,
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and ending on the 15TH day of JULY, 2007, unless sooner terminated as herein
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provided as further described in Schedule "A". Tenant shall occupy only a
portion of the Demised Premises (the "July Space" as shown on Exhibit C) from
July 15th until the date Landlord delivers possession of the entire Demised
Premises, estimated to be September 15th, 1997.
3. MINIMUM RENT.
A. See Rent Schedule on the Rider attached hereto as SCHEDULE "A".
The first monthly installment of Minimum Rent payable under this Lease shall be
due and payable on the execution of this Lease and subsequent installments shall
be payable on the first day of each month of the term hereof as set forth on the
Rent Schedule.
B. All rent and other sums due to Landlord hereunder (hereinafter
called "RENT") shall be made payable to MARAVE ASSOCIATES, L.P. at 215 SOUTH
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XXXXX XXXXXX, XXXXX 000, XXXXXXXXXXXX, XX 00000 or to such other party or at
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such other address as Landlord may designate, from time to time, by written
notice to Tenant, without demand and without deduction, set-off or counterclaim
(except to the extent demand or notice shall be expressly provided for herein).
C. If Landlord, at any time or times, shall accept Rent or any other
sum due to it hereunder after the same shall become due and payable, such
acceptance shall not excuse delay upon subsequent occasions, or constitute or be
construed as, a waiver of any of Landlord's rights hereunder.
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4. PAYMENT OF TAXES, OPERATING COSTS, COST OF ELECTRICITY.
A. DEFINITIONS. As used in this Section 4, the following terms
shall be defined as hereinafter set forth:
(1) "TAXES" shall mean all real estate taxes and assessments,
general and special, ordinary or extraordinary, foreseen or unforeseen, imposed
upon the Building or with respect to the ownership thereof and the parcel of
land appurtenant thereto. If, due to a future change in the method of taxation,
any franchise, income, profit or other tax, however designated, shall be levied
or imposed in substitution, in whole or in part, for (or in lieu of) any tax
which would otherwise be included within the definition of Taxes, such other tax
shall be deemed to be included within Taxes as defined herein.
(2) "TENANT'S FRACTION" shall be 40,000/40,000 as of September 15,
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1997 or the date Landlord delivers possession of the entire Demised Premises.
(3) OPERATING EXPENSES
(A) Operating Expenses shall mean, except as hereinafter
limited, Landlord's actual out-of-pocket expenses in respect of the operation,
maintenance and management of the Building (after deducting any reimbursement,
discount, credit, reduction or other allowance received by Landlord) and shall
include, without limitation: (1) wages and salaries (and taxes imposed upon
employers with respect to such employees) for rendering service in the normal
operation, cleaning, maintenance, and repair of the Building; (2) contract costs
of contractors hired for the operation, maintenance and repair of the Building;
(3) the cost of steam, electricity, water and sewer and other utilities (except
for electricity and any other utility, which is separately charged by Landlord
to the Demised Premises as herein provided) chargeable to the operation and
maintenance of the Building; (4) cost of insurance for the Building, including
fire and extended coverage, elevator, boiler, sprinkler leakage, water damage,
public liability and property damage, plate glass, and rent protection, but
excluding any charge for increased premiums due to acts or omissions of other
occupants of the Building or because of extra risk which are reimbursed to
Landlord by such other occupants; (5) supplies; (6) legal and accounting
expenses pertaining to the Building; and (7) Taxes; (8) management fees; (9) the
cost of oil for heat in tenants space.
The term "OPERATING EXPENSES" shall not include: (1) the cost of redecorating
or repairing not provided on a regular basis to tenants of the Building; (2) the
cost of any repair or replacement items which, by standard accounting practice,
should be capitalized; (3) any charge for depreciation, interest or rents paid
or incurred by Landlord; (4) any charge for Landlord's income tax, excess profit
taxes, franchise taxes or similar taxes on Landlord's business; and (5)
commissions.
(4) "DEMISED RENTABLE SQUARE FEET" shall mean 40,000 square feet.
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(5) "RENTABLE SQUARE FEET IN THE BUILDING" shall mean 40,000 square
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feet.
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B. PAYMENT OF OPERATING EXPENSES AND TAXES.
(1) For and with respect to each calendar year of the term of this
Lease (and any renewals or extensions thereof) there shall accrue, as additional
rent, an amount equal to the product obtained by multiplying the Tenant's
Fraction by the amount of Operating Expenses and Taxes for such year
(appropriately pro-rated for any partial calendar year included within the
beginning or end of the term).
(2) Landlord shall furnish to Tenant as soon as reasonably possible
after the beginning of each calendar year of the term hereof:
(a) A statement (the "EXPENSE STATEMENT") setting forth (1)
Operating Expenses for the previous calendar year, and (2) Tenant's Fraction of
the Operating Expenses for the previous calendar year; and
(b) A statement of Landlord's good faith estimate of
Operating Expenses for the current calendar year, and the amount of Tenant's
Fraction thereof (the "ESTIMATED SHARE"), for the current calendar year.
(3) Beginning with the next installment of minimum rent due after
delivery of the foregoing statements to Tenant, Tenant shall pay to Landlord, on
account of its share of Operating Expenses:
(a) One-twelfth of the Estimated Share multiplied by the
number of full or partial calendar months elapsed during the current calendar
year up to and including the month payment is made, plus any amounts due from
Tenant to Landlord on account of Operating Expenses for prior periods of time,
less:
(b) The amount, if any, by which the aggregate of payments
made by Tenant on account of Operating Expenses for the previous calendar year
exceed those actually due as specified in the Expense Statement.
(4) On the first day of each succeeding month up to the time Tenant
shall receive a new Expense Statement and statement of Tenant's Estimated Share,
Tenant shall pay to Landlord, on account of its share of Operating Expenses,
one-twelfth of the then current Estimated Share. Any payment due from Tenant to
Landlord, or any refund due from Landlord to Tenant, on account of Operating
Expenses not yet determined as of the expiration of the term hereof shall be
made within twenty (20) days after submission to Tenant of the next Expense
Statement.
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5. UTILITIES SEPARATELY CHARGED TO DEMISED PREMISES. Tenant shall be
responsible for all utilities (including gas and electric) which are consumed
within the Demised Premises. If a separate meter is installed, Tenant shall pay
for the consumption of such utilities based on its metered usage. If no meter
is installed, Tenant shall pay a pro-rata share of any utility charges covering
the Demised Premises and other areas of the Building which pro-rata share shall
be based on the percentage which the Demised Rentable Square Feet bears to the
square footage of the areas of the Building serviced by such utility. Utility
bills shall be paid by Tenant within ten (10) days after the receipt and non-
payment or late payment of such bills shall be considered a default under this
Lease.
6. SECURITY DEPOSIT. As additional security for the full and prompt
performance by Tenant of the terms and covenants of this Lease, Tenant has
deposited with the Landlord the sum of TWENTY THREE THOUSAND THREE HUNDRED
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THIRTY TWO DOLLARS AND ZERO CENTS ($23,332.00) in the form of an irrevocable
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Letter of Credit which shall not constitute rent for any month (unless so
applied by Landlord on account of Tenant's default). Tenant shall, upon demand,
restore any portion of said security deposit, which may be applied by Landlord
to the cure of any default by Tenant hereunder. To the extent that Landlord has
not applied said sum on account of a default, the security deposit shall be
returned (without interest) to Tenant promptly after termination of this Lease.
7. CARE OF DEMISED PREMISES. Tenant agrees, on behalf of itself, its
employees and agents that it shall:
(A) Comply at all times with any and all Federal, state, and local
statutes, regulations, ordinances, and other requirements of any of the
constituted public authorities relating to its use and occupancy of the Demised
Premises.
(B) Give Landlord access to the Demised Premises at all reasonable
times, without charge or diminution of rent, to enable Landlord (i) to examine
the same and to make such repairs, additions and alterations as Landlord may be
permitted to make hereunder or as Landlord may deem advisable for the
preservation of the integrity, safety and good order of the Building or any part
thereof; and (ii) upon reasonable notice, to show the Demised Premises to
prospective mortgagees and purchasers and, during the six (6) months prior to
expiration of the term, to prospective tenants;
(C) Keep the Demised Premises in good order and condition and replace
all glass broken by Tenant, its agents, employees or invitees with glass of the
same quality as that broken, except for glass broken by fire and extended
coverage type risks, and commit no waste in the Demised Premises;
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(D) Upon the termination of this Lease in any manner whatsoever,
remove Tenant's goods effects and those of any other person claiming under
Tenant, and quit and deliver up the Demised Premises to Landlord peaceably and
quietly in as good order and condition at the inception of the term of this
Lease or as the same hereafter may be improved by Landlord or Tenant, reasonable
use and wear thereof, damage from fire and extended coverage type risks, and
repairs which are Landlord's obligation excepted. Goods and effects not removed
by Tenant at the termination of this Lease, however terminated, shall be
considered abandoned and Landlord may dispose of and/or store the same as it
deems expedient, the cost thereof to be charged to Tenant;
(E) Not place signs on the Demised Premises except on doors and then
only of a type and with lettering and text approved by Landlord. Identification
of Tenant and Tenant's location shall be provided in a directory in the Building
lobby; and proportionally on any exterior building signage
(F) Not overload, damage or deface the Demised Premises or do any act
which might make void or voidable any insurance on the Demised Premises or the
Building or which may render an increased or extra premium payable for insurance
(and without prejudice to any right or remedy of Landlord regarding this
subparagraph, Landlord shall have the right to collect from Tenant, upon demand,
any such increase or extra premium).
Tenant shall maintain at its own sole cost adequate insurance coverage for all
of its equipment, furniture, supplies and fixtures and provide Landlord with
certificates evidencing such coverage;
(G) Not make any alteration of or addition to the Demised Premises
without the prior written approval of Landlord (except for work of a decorative
nature) which approval shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, consent will not be required for construction of
15,000 square feet or less of laboratory space provided such construction.
(1) does not alter or affect in anyway the structural integrity
of the building, and
(2) complies with all federal, state and local laws and
regulations pertaining to the construction of laboratory space.
(H) Not install or authorize the installation of any coin operated
vending machines, except for the dispensing of cigarettes, coffee, and similar
items to the employees of Tenant for consumption upon the Demised Premises;
(I) Observe the rules and regulations annexed hereto as EXHIBIT "B",
as the same may from time to time be amended by Landlord for the general safety,
comfort and convenience of Landlord, occupants and tenants of the Building; and
provided that Tenant's use shall supercede such rules and regulations.
(J) Keep the Demised Premises heated at a level of forty-five degrees
(45 degrees) to keep the sprinkler system and plumbing from freezing.
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8. SUBLETTING AND ASSIGNING. Tenant shall not assign this Lease or
sublet all or any portion of the Demised Premises without first obtaining
Landlord's prior written consent thereto which consent shall not be unreasonably
withheld. If such consent is given, it will not release Tenant from its
obligations hereunder and which will not be deemed a consent to any further
subletting or assignment. If Landlord consents to any such subletting or
assignment, it shall nevertheless be a condition to the effectiveness thereof
that a fully executed copy of the sublease or assignment be furnished to
Landlord and that any assignee assume in writing all obligations of Tenant
hereunder. Tenant shall not mortgage or encumber this Lease.
9. DELAY IN POSSESSION. If Landlord shall be unable to deliver
possession of the Demised Premises to Tenant on the date specified for
commencement of the term hereof because of the holding over or retention of
possession of any tenant or occupant, or if repairs, improvements or decoration
of the Demised premises are not completed, or for any other reason, Landlord
shall not be subject to any liability to Tenant. Under such circumstances, the
rent reserved and covenanted to be paid herein shall not commence until
possession of the July Space or the Demised Premises, as applicable, is given or
until Landlord shall give written notice to Tenant that the July Space or the
Demised Premises, as applicable, are available for occupancy by Tenant,
whichever shall first occur, and no such failure to give possession shall in any
other respect affect the validity of this Lease or any obligation to extend the
term of this Lease. Notwithstanding the foregoing, if Landlord is unable to
deliver possession of the July Space on July 15th, 1997, Tenant will receive a
rent credit of $500.00 for every day beyond July 15th, 1997 (e.g. possession
July 20th - $2,500.00 rent credit). In addition if Landlord is unable to deliver
possession of the balance of the Demised Premises by September 15th, 1997,
Tenant shall receive a rent credit of $1,600.00 for every day beyond September
15th, 1997. (e.g. possession September 20th, 1997 - $8,000.00 rent credit). Any
rent credit not used against rent shall be paid in cash.
10. FIRE OR CASUALTY. In case of damage to the Demised Premises or the
Building by fire or other casualty, Tenant shall give immediate notice thereof
to Landlord. Landlord shall thereupon cause the damage to be repaired with
reasonable speed, subject to delays, which may arise by reason of adjustment of
loss under insurance policies and for delays beyond the reasonable control of
Landlord. To the extent and for the time that the Demised Premises are thereby
rendered untenantable, the rent shall proportionately xxxxx.
In the event the damage shall be so extensive that Landlord shall decide not to
repair or rebuild, or if any mortgagee, having the right to do so, shall direct
that the insurance proceeds are to be applied to reduce the mortgage debt rather
than to the repair of such damage, this Lease shall, at the option of Landlord,
exercisable by written notice to Tenant given within thirty (30) days after
Landlord is notified of the casualty, be terminated as of a date specified in
such notice (which shall not be more than ninety (90) days thereafter), and the
rent (taking into account any abatement as aforesaid) shall be adjusted to the
termination date. Thereafter, Tenant shall promptly vacate the Demised Premises.
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11. LIABILITY. Tenant agrees that Landlord and its building manager and
their officers, employees and agents shall not be liable to Tenant, and Tenant
hereby releases said parties, for any personal injury or damage to or loss of
personal property in the Demised Premises from any cause whatsoever unless such
damage, loss or injury is the result of the willful misconduct or gross
negligence of Landlord, its building manager, or their officers, employees or
agents, and Landlord and its building manager and their officers, employees, or
agents, and Landlord and its building manager and their officers or employees
shall not be liable to Tenant for any such damage or loss whether or not the
result of their willful misconduct or gross negligence to the extent Tenant is
compensated therefor by Tenant's insurance. Tenant shall and does hereby
indemnify and hold Landlord harmless of and from all loss or liability incurred
by Landlord in connection with any failure of Tenant to fully perform its
obligations under this Lease and in connection with any personal injury or
damage of any type or nature occurring in or resulting out of Tenant's use of
the Demised Premises, unless due to Landlord's willful misconduct or gross
negligence.
12. EMINENT DOMAIN. If the whole or a substantial part of the Building
shall be taken or condemned for a public or quasi-public use under any statute
or by right of eminent domain or private purchase in lieu thereof by any
competent authority, Tenant shall have no claim against Landlord and shall not
have any claim or right to any portion of the amount that may be awarded as
damages or paid as a result of any such condemnation or purchase; and all rights
of the Tenant to damages therefore are hereby assigned by Tenant to Landlord.
The foregoing shall not, however, deprive Tenant of any separate award for
moving expenses or for any other award which would not reduce the award payable
to Landlord. Upon the date the right to possession shall vest in the condemning
authority, this Lease shall cease and terminate with rent adjusted to such date,
and Tenant shall have no claim against Landlord for the value of any unexpired
term of this Lease.
13. INSOLVENCY. (a) The appointment of a receiver or trustee to take
possession of all or a portion of the assets of Tenant, or (b) an assignment by
Tenant for the benefit of creditors, or (c) the institution by or against Tenant
of any proceedings for bankruptcy or reorganization under any state or federal
law (unless, in the case of involuntary proceedings, the same shall be dismissed
within ninety (90) days after institution), or (d) any execution issued against
Tenant which is not stayed or discharged within fifteen (15) days after issuance
of any execution sale of the assets of Tenant, shall constitute a breach of this
Lease by Tenant. Landlord, in the event of such a breach, shall have, without
need of further notice, the rights enumerated in Section 14 herein.
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14. DEFAULT.
A. If Tenant shall fail to pay rent or any other sum payable to
Landlord hereunder within fifteen (15) days from the date of written notice from
Landlord (which will only be required twice in any given year), or if Tenant
shall fail to perform or observe any of the other covenants, terms or conditions
contained in this Lease within thirty (30) days from the date of written notice
to Tenant (or such longer period as is reasonably required to correct any such
default, provided Tenant promptly commences and diligently continues to
effectuate a cure, but in any event within thirty (30) days after written notice
thereof by Landlord) or if any of the events specified in Section 13 occur, or
if Tenant vacates or abandons the Demised Premises during the term hereof or
removes or manifests an intention to remove any of Tenant's goods or property
therefrom other than in the ordinary and usual course of Tenant's business, then
and in any of said cases (notwithstanding any former breach of covenant or
waiver thereof in a former instance), Landlord, in addition to all other rights
and remedies available to it by law or equity or by any other provisions hereof,
may at any time thereafter:
(i) upon three (3) days notice to Tenant, declare to be
immediately due and payable, on account of the rent and other charges herein
reserved for the balance of the term of this Lease (taken without regard to any
early termination of said term on account of default), a sum equal to the
Accelerated Rent Component (as hereinafter defined), and Tenant shall remain
liable to Landlord as hereinafter provided; and/or
(ii) whether or not Landlord has elected to recover the
Accelerated Rent Component, terminate this Lease on at least five (5) days
notice to Tenant and, on the date specified in said notice, this Lease and the
term hereby demised and all rights of Tenant hereunder shall expire and
terminate and Tenant shall thereupon quit and surrender possession of the
Demised Premises to Landlord in the condition elsewhere herein required and
Tenant shall remain liable to Landlord as hereinafter provided.
B. For purposes herein, the Accelerated Rent Component shall mean
the aggregate of:
(i) all rent and other charges, payments, costs and expenses due
from Tenant to Landlord and in arrears at the time of the election of Landlord
to recover the Accelerated Rent Component;
(ii) the minimum rent reserved for the then entire unexpired
balance of the term of this Lease (taken without regard to any early termination
of the term by virtue of any default), plus all other charges, payments, costs
and expenses herein agreed to be paid by Tenant up to the end of said term which
shall be capable of precise determination at the time of Landlord's election to
recover the Accelerated Rent Component; and
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(ii) Landlord's good faith estimate of all charges, payments,
costs and expenses herein agreed to be paid by Tenant up to the end of said term
which shall not be capable to precise determination as aforesaid (and for such
purposes no estimate of any component of additional rent to accrue pursuant to
the provisions of Section 4 hereof shall be less than the amount which would be
due if each such component continued at the highest monthly rate or amount in
effect during the twelve (12) months immediately preceding the default).
(C) In any case in which this Lease shall have been terminated, or in
any case in which Landlord shall have elected to recover the Accelerated Rent
Component and any portion of such sum shall remain unpaid, Landlord may, without
future notice, enter upon and repossess the Demised Premises, by force, summary
proceedings, ejectment or otherwise, and may dispossess Tenant and remove Tenant
and all other persons and property from the Demised Premises and may have, hold
and enjoy the Demised Premises and the rents and profits therefrom. Landlord
may, in its own name, as agent for Tenant, if this Lease has not been
terminated, or in its own behalf, if this Lease has been terminated, relet the
Demised Premises or any part thereof for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the term of the this Lease) and on such terms (which may include
concessions of free rent) as Landlord in its sole discretion may determine.
Landlord may, in connection with any such reletting, cause the Demised Premises
to be redecorated, altered, divided, consolidated with other space or otherwise
changed or prepared for reletting. No reletting shall be deemed a surrender and
acceptance of the Demised Premises.
(D) Tenant shall, with respect to all periods of time up to and
including the expiration of the term of this Lease (or what would have been the
expiration date in the absence of default or breach) remain liable to Landlord
as follows:
(i) In the event of termination of this Lease on account of
Tenant's default or breach, Tenant shall remain liable to Landlord for damages
equal to the rent and other charges payable under this Lease by Tenant as if
this Lease were still in effect, less the net proceeds of any reletting after
deducting all costs incident thereto (including without limitation all
repossession costs, brokerage and management commissions, operating and legal
expenses and fees, alteration costs and expenses of preparation for reletting)
and to the extent such damages shall not have been recovered by Landlord by
virtue of payment by Tenant of the Accelerated Rent Component (but without
prejudice to the right of Landlord to demand and receive the Accelerated Rent
Component), such damages shall be payable to Landlord monthly upon presentation
to Tenant of a xxxx for the amount due.
(ii) In the event and so long as this Lease shall not have been
terminated after default or breach by Tenant, the rent and all other charges
payable under this Lease shall be reduced by the net proceeds of any reletting
by Landlord (after deducting all costs incident thereto as above set forth) and
by any portion of the Accelerated Rent Component paid by Tenant to Landlord, and
any amount due to Landlord shall be payable monthly upon presentation to Tenant
of a xxxx for the amount due.
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(E) In the event Landlord shall, after default or breach by Tenant,
recover the Accelerated Rent Component from Tenant and it shall be determined at
the expiration of the term of this Lease (taken without regard to early
termination for default) that a credit is due Tenant because the net proceeds of
reletting, as aforesaid, plus amounts paid to Landlord by Tenant exceed the
aggregate of rent and other charges accrued in favor of Landlord to the end of
said term, Landlord shall refund such excess to Tenant, without interest,
promptly after such determination.
(F) Landlord shall use commercially reasonable efforts, but in no
event be responsible or liable for any failure, to relet the Demised Premises or
any part thereof, or for any failure to collect any rent due upon a reletting.
(G) As an additional and cumulative remedy of Landlord in the event
of termination of this Lease by Landlord following any breach or default by
Tenant, Landlord, at its option, shall be entitled to recover damages for such
breach in an amount equal to the Accelerated Rent Component (determined from and
after the date of Landlord's election under this subsection (G) less the fair
rental value of the Demised Premises for the remainder of the term of this Lease
(taken without regard to the early termination) and such damages shall be
payable by Tenant upon demand. Nothing contained in this Lease shall limit or
prejudice the right of Landlord to prove and obtain as damages incident to a
termination of this Lease, in any bankruptcy, reorganization or other court
proceedings, the maximum amount allowed by any statute or rule of law in effect.
(H) In the event of any default occurrence by which Landlord shall
have the rights and remedies specified in this Section 14:
(i) INTENTIONALLY DELETED
(ii) For the purpose of obtaining possession of the Demised
Premises, Tenant hereby authorizes and empowers any prothonotary or attorney of
any court of record to appear for Tenant and to file in any court an agreement
for entering an amicable action and judgment in ejectment for recovery of
possession, and/or to confess judgment for possession against Tenant and those
claiming by, through or under Tenant in favor of Landlord by Complaint to
Confess Judgment or otherwise, and Tenant agrees that upon such entry or
judgment a writ of possession for the Demised Premises may forthwith issue; and
(I) Tenant hereby waives all errors and defects of a procedural
nature in any proceedings brought against it by Landlord under this Lease.
Tenant further waives the right to any notices to quit as may be specified in
the Landlord and Tenant Act of Pennsylvania, as amended, and agrees that five
(5) days notice shall be sufficient in any case where a longer period may be
statutorily specified.
(J) If rent or any other sum due from Tenant to Landlord shall be
overdue for more than five (5) business days after notice from Landlord, it
shall thereafter bear interest at the rate of 4 points over prime rate per annum
(or, if lower, the highest legal rate) until paid.
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15. SUBORDINATION. This Lease is and shall be subject and subordinate to
all the terms and conditions of all underlying mortgages and to all ground or
underlying leases of the entire Building which may now or hereafter be secured
upon the Building, and to all renewals, modifications, consolidations,
replacements and extensions thereof. This clause shall be self-operative and no
further instrument of subordination shall be necessary. Tenant shall execute,
within fifteen (15) days after request, any certificate that Landlord may
reasonably require acknowledging such subordination. Notwithstanding the
foregoing, provided Tenant is not in Default, both the party holding the
instrument to which this Lease is subordinate and Tenant, at the option of
either, shall have the right to recognize and preserve this Lease in the event
of any foreclosure sale, possessory action or other transaction, and in such
case this Lease shall continue in full force and effect and Tenant shall attorn
the proper party and shall execute, acknowledge and deliver any instrument that
has for its purpose and effect the confirmation of such attornment in accordance
with a mutually acceptable SNDA Agreement.
16. NOTICES. All bills, statements, notices or communications which
Landlord may desire or be required to give to Tenant shall be deemed
sufficiently given or rendered if in writing and either delivered to an officer
of Tenant or sent by registered or certified mail addressed to Tenant at the
Building, and the time of the giving of such notice or communication shall be
deemed to be the time when the same is delivered to Tenant or deposited in the
mail, as the case may be. Any notice by Tenant to Landlord must be served by
registered or certified mail addressed to Landlord at the address where the last
previous rental hereunder was payable, or in the case of subsequent change upon
notice given, to the latest address furnished.
17. HOLDING-OVER. Should Tenant continue to occupy the Demised Premises
after expiration of the term of this Lease or any renewal or renewals thereof,
or after a forfeiture incurred, such tenancy shall (without limitation of any of
Landlord's rights or remedies therefor) be one at sufferance from month to month
at a minimum monthly rental equal to twice the rent payable for the last month
of the term of this Lease.
18. MISCELLANEOUS.
A. Tenant represents and warrants that it has not employed any
broker or agent as its representative in the negotiation for or the obtaining of
this Lease other than Xxx Xxxxxx of Xxxxxxxx Realty Development Corporation
located at 000 Xxxxxxxx Xxxx, Xxxxx 000 in Xxxx Xxxx, XX 00000, and agrees to
indemnify and hold Landlord harmless from any and all cost or liability for
compensation claimed by any broker or agent with whom it has dealt. Landlord
agrees to compensate Franklin Realty.
Page - 11
B. The word "TENANT" as used in this Lease shall be construed to
mean tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply to
corporations, partnerships or individuals, men or women, shall in all cases be
assumed as though in each case fully expressed. This Lease shall not inure to
the benefit of any assignee, heir, legal representative, transferee or successor
of Tenant except upon the express written consent or election of Landlord.
Subject to the foregoing limitation, each provision hereof shall extend to and
shall, as the case may require, bind and inure to the benefit of Tenant and its
heirs, legal representatives, successors and assigns.
C. The term "LANDLORD" as used in this Lease means the fee owner of
the Building or, if different, the party holding and exercising the right, as
against all others (except space tenants of the Building) to possession of the
entire Building. Landlord above-named represents that it is the holder of such
rights as of the date of execution hereof. In the event of the voluntary
transfer of such ownership or right to a successor-in-interest of Landlord,
Landlord shall be freed and relieved of all liability and obligation hereunder
which shall thereafter accrue (and, as to any unapplied portion of Tenant's
security deposit, Landlord shall be relieved of all liability therefor upon
transfer of such portion to its successor in interest) and Tenant shall look
solely to such successor in interest for the performance of the covenants and
obligations of the Landlord hereunder which shall thereafter accrue.
Notwithstanding the foregoing, no mortgagee or ground lessor which shall succeed
to the interest of Landlord hereunder (either in terms of ownership or
possessory rights) shall (i) be liable for any previous act or omission of a
prior landlord; (ii) be subject to any rental offsets or defenses against a
prior landlord; (iii) be bound by any amendment of this Lease made without its
written consent, or by payment by Tenant of rent in advance in excess of one (1)
month's rent; or (vi) be liable for any security not actually received by it.
Subject to the foregoing, the provisions hereof shall be binding upon and inure
to the benefit of the successors and assigns of Landlord. Notwithstanding
anything to the contrary contained in this Lease, any liability of Landlord, its
agents, partners or employees, arising out of or in respect of this Lease, the
Demised Premises or the Building, and, if Landlord shall default in the
performance of Landlord's obligation under this Lease or otherwise, Tenant shall
look solely to the equity of Landlord in its interest in the Building.
D. Tenant and Landlord agree to execute a memorandum of this Lease,
which may be recorded by Landlord or Tenant. Tenant also agrees to execute any
assignment of this Lease by Landlord, evidencing its consent to such assignment.
19. LANDLORD IMPROVEMENT. Landlord will deliver possession of the
Demised Premises to Tenant in broom swept condition, and Landlord shall not make
any improvements to the Demised Premises, subject to Exhibit C.
Page - 12
20. WAIVER OF SUBROGATION. Each party hereto waives any and every claim
which arises or which may arise in its favor and against the other party hereto
during the term of this Lease, or any extension or renewal thereof, for any and
all loss of, or damage to, any of its property located within or upon or
constituting a part of the Building, to the extent that such loss or damage is
recovered under an insurance policy or policies and to the extent such policy or
policies contain provisions permitting such waivers of claims. Each party
agrees to request its insurers to issue policies containing such provisions and
if any extra premium is payable therefor, the party which would benefit from the
provision shall have the option to pay such additional premium in order to
obtain such benefit.
21. RENT TAX. If, during the term of this Lease or any renewal or
extension thereof, any tax is imposed upon the privilege of renting or occupying
the Demised Premises or upon the amount of rentals collected therefor, Tenant
will pay each month, as additional rent, a sum equal to such tax or charge that
is imposed for such month, but nothing herein shall be taken to require Tenant
to pay any income, estate, inheritance or franchise tax imposed upon Landlord.
22. PRIOR AGREEMENT, AMENDMENTS. Neither party hereto has made any
representations nor promises except as contained herein or in some further
writing signed by the party making such representation or promise. 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. Tenant agrees to execute any
amendment to this Lease required by a mortgagee of the Building, which amendment
does not materially adversely affect Tenant's rights or obligations hereunder.
23. CAPTIONS. The captions of the paragraphs in this Lease are inserted
and included solely for convenience and shall not be considered or given any
effect in construing the provisions hereof.
24. MECHANIC'S LIEN. Tenant shall, within ten (10) days after notice from
Landlord, discharge any mechanic's lien for materials or labor claimed to have
been furnished to the Demised Premises on Tenant's behalf (except for work
contracted for by Landlord) and shall indemnify and hold harmless Landlord from
any loss incurred in connection therewith.
25. LANDLORD'S RIGHT TO CURE. Landlord may (but shall not be obligated),
on five (5) days notice to Tenant (except that no notice need be given in case
of emergency) cure on behalf of Tenant any default hereunder by Tenant, and the
cost of such cure (including any attorney's fees incurred) shall be deemed
additional rent payable upon demand.
Page - 13
26. PUBLIC LIABILITY INSURANCE. Tenant shall at all times during the term
hereof maintain in full force and effect with respect to the Demised Premises
and Tenant's use thereof, comprehensive public liability insurance, naming
Landlord as an additional insured, covering injury to persons in amounts at
least equal to Five Hundred Thousand ($500,000) Dollars combined single limit
bodily injury and property. Tenant shall lodge with Landlord duplicate
originals or certificates of such insurance at or prior to the commencement date
of the term hereof, together with evidence of paid-up premiums, and shall lodge
with Landlord renewals thereof at least fifteen (15) days prior to expiration.
27. ESTOPPEL STATEMENT. Tenant shall from time to time, within ten (10)
days after request by Landlord, execute, acknowledge and deliver to Landlord a
statement certifying that this Lease is unmodified and in full force and effect
(or that the same is in full force and effect as modified, listing any
instruments or modifications), the dates to which rent and other charges have
been paid, and whether or not, to the best of Tenant's knowledge, Landlord is in
default or whether Tenant has any claims or demands against Landlord (and, if
so, the default, claim and/or demand shall be specified).
28. ENVIRONMENTAL COMPLIANCE.
A. Tenant hereby covenants and agrees to use and occupy the Demised
Premises and to conduct its business and operations thereupon in full compliance
with all applicable statutes, codes, rules, regulations, and ordinances as they
may change from time to time pertaining to the protection of the environment and
to hazardous substances and hazardous wastes as those terms may be defined from
time to time in such statutes, codes, rules, regulations, and ordinances
("ENVIRONMENTAL LAWS").
B. Tenant shall promptly provide Landlord with copies of all
correspondence from or to the U.S. Environmental Protection Agency, the
Pennsylvania Department of Environmental Resources or any other federal, state
or local governmental agency which pertains to the Demised Premises regarding
but not limited to the following: (1) Tenant's compliance with the
Environmental Laws; (2) any permits which Tenant may be required to obtain
pursuant to the Environmental Laws; (3) any release or threat of release of a
hazardous substance or hazardous waste which has occurred in the Demised
Premises.
C. Tenant shall immediately notify Landlord of its receipt of any
notices of alleged violations of the Environmental Law from any other party
including but not limited to governmental agencies including requests for
information.
D. Tenant shall promptly provide Landlord with copies of any
documents required to be kept or prepared by Tenant or maintained at the Demised
Premises pursuant to the Pennsylvania Worker Right to Know Act, 35 P.S. 7301 et
seq., and the regulations promulgated thereunder.
E. Tenant shall promptly supply to Landlord true and complete copies
of all sampling and test results obtained from any samples and tests taken at or
around the Demised Premises.
Page - 14
F. In the event of any "RELEASE" of a "HAZARDOUS SUBSTANCE" or
"HAZARDOUS WASTE" as those terms are defined in any of the Environmental Laws,
which release requires notification of any governmental agency, Tenant shall
immediately notify Landlord of the release and provide a full, true and complete
description of the release, the substances involved and the remedial efforts
taken.
G. At any time during the term hereof, Landlord shall have a right
to enter upon the Demised Premises to inspect the Demised Premises and to
evaluate Tenant's compliance with the Environmental Laws. Such right of access
shall include a right to review Tenant's records pertaining to compliance with
the Environmental Laws. Tenant hereby agrees to cooperate with Landlord in any
such inspection and evaluation.
H. Tenant hereby agrees to indemnify, defend and hold Landlord
harmless from and against any and all claims, demands, judgments, suits, liens,
actions, and other proceedings, arising out of or relating to the removal,
remediation, corrective action or clean up of any hazardous waste or hazardous
substance as defined in the Environmental Laws or any other proceedings or
actions threatened, or brought for the enforcement of any Environmental Laws now
or hereafter applicable to the Demised Premises and resulting from or arising
out of Tenant's use, operation, and occupation thereof during the term of this
Lease. Such indemnification shall include but not be limited to costs of
investigation, engineering fees, attorney's fees, costs of remediation and clean
up and future site maintenance.
I. Prior to the commencement date of this Lease, Tenant shall supply
to Landlord an affidavit of an officer or principal of Tenant setting forth
Tenant's SIC number (when applicable) and a detailed description of Tenant's
operation and the processes Tenant will undertake at the Demised Premises,
including a description and quantification of any hazardous substances and
hazardous waster generated, manufactured, refined, transported, treated, stored,
handled or disposed of at or from the Demised Premises. Following the
commencement of the lease term, Tenant shall update this affidavit in the event
of any changes in Tenant's operations, SIC number or use of hazardous substances
and waste. Tenant shall also supplement and update such affidavit upon each
anniversary of the commencement of the lease term.
J. All of the terms and conditions of this Section shall survive the
termination of this Lease Agreement for so long as any liability may arise under
the Environmental Laws with respect to the Demised Premises.
29. QUIET ENJOYMENT. Tenant, upon paying the Fixed Rent, additional
rent and all other charges herein provided for and observing and keeping all
covenants, agreements and conditions of this Lease on its part to be kept, shall
quietly have and enjoy the Demised Premises during the term of this Lease
without hindrance or molestation by anyone claiming by or through Landlord,
subject, however, to the exceptions, reservations and conditions of this Lease,
and Landlord will maintain the structure of the building in a tenantable
condition.
Page - 15
30. OPTION TO PURCHASE. Tenant is hereby granted the Option to Purchase
the Demised Premises for the price, and upon the terms and conditions, set forth
in the Agreement of Sale attached hereto in Exhibit "D", (the "Agreement of
Sale"). In order to exercise this option, Tenant shall, on or before March 31,
1998, execute and contemporaneously date at least two counterparts of the
Agreement of Sale and hand deliver or forward them by certified mail to the
Landlord, together with a certified check in the amount of $100,000.00
representing the deposit money provided for therein. Upon receipt by Landlord
of the counterparts of the Agreement of Sale, together with the deposit money
check, it shall be the obligation of Landlord to sign a copy of the Agreement of
Sale and return it to Tenant within ten (10) days. Settlement shall take place
within the specified time set forth in the Agreement. In the event Tenant does
not exercise its Option to Purchase in accordance with the above terms, this
Option to Purchase shall become null and void on April 1, 1998, and all rights
and remedies and obligations of both Landlord and Tenant with respect to this
option shall cease as of that date. With reference to Tenant's Option to
Purchase provided herein, Landlord represents to Tenant the following:
(a) Landlord is the present Owner in fee of the Demised Premises, and
presently has full power to convey good and marketable title, and such as will
be insured at standard rates by any reputable title insurance company doing
business in Xxxxxxxxxx County, Pennsylvania, except as to encumbrances listed in
subparagraph (b) below;
(b) To the best of our knowledge there are no encumbrances on title
to the Demised Premises except as shown on attached Exhibit E and the Right of
Way, dated February 13, 1997 granted to PECO Energy Company by Marave
Associates, L.P. recorded in Deed Book 5181 page 1406 recorded on April 3, 1997.
(c) Between the date hereof and the earlier of the expiration of
Tenant's Option to Purchase hereunder or the settlement date provided in the
Agreement of Sale, Landlord shall not sell, alienate or encumber the Demised
Premises except with the written consent of Tenant, and Landlord will pay when
due, and otherwise remain in compliance, with all obligations of the Landlord
under encumbrances set forth in subparagraph (b) above provided, however, that
Landlord may mortgage the Demised Premises under the following conditions;
(i) The amount and terms of that mortgage are such that Landlord
will be able to satisfy and discharge the mortgage upon Tenant's purchase of the
property under its Option to Purchase the Demised Premises;
(ii) Landlord will use commercially reasonable efforts to make
any new mortgage assumable by Tenant upon Tenant's exercise of the Option to
Purchase; and
(iii) Landlord will maintain sufficient financial condition to
enable it to, and will in fact, satisfy and discharge such mortgage upon
Tenant's Purchase of the Demised Premises.
(d) All representations of paragraph 7 of the Agreement of Sale are
true as of the date hereof.
Page - 16
31. CONTRACTION OPTION. Upon one month written notice to Landlord, Tenant
may return to the Landlord 5,000 square feet (that can be separately demised and
leased by Landlord, the "Portion") of the Demised Premises, effective no later
than July 1, 1998. Upon effective date of the return of the Portion to the
Landlord, the Minimum Rent, Operating Expenses, Taxes and any other amounts
payable hereunder shall be proportionately reduced, and the respective
definitions and provisions of this Lease shall be deemed amended to reflect that
the Demised Premises have been reduced by the Portion.
IN WITNESS WHEREOF, the parties hereto have executed this Lease or caused
this Lease to be executed by their duly authorized representatives the day and
year first above written.
LANDLORD:
--------
MARAVE ASSOCIATES, L.P.
BY: /s/ Authorized Signer
---------------------------
DATE: 6 / 20 / 97
---- ---- ----
TENANT:
------
CELL PATHWAYS, INC.
BY: /s/ Xxxxxxx X. Xxxx
-------------------------
DATE: 6 / 20 / 97
---- ---- ----
Page - 17
SCHEDULE "A"
RENT RIDER FOR JULY SPACE
---------- --------------
----------------------------------------------------------------
PERIOD RENT
------ ----
----------------------------------------------------------------
July 15, 1997 - July 31, 1997 $1,300.00
----------------------------------------------------------------
August 1, 1997 - August 31, 1997 $2,600.00
----------------------------------------------------------------
September 1, 1997 - September 14, 1997 $1,300.00
----------------------------------------------------------------
RENT RIDER FOR DEMISED PREMISES
-------------------------------
----------------------------------------------------------------------------
PERIOD RENT
------ ----
----------------------------------------------------------------------------
September 15, 1997 - September 30, 1997 $11,666.00 per month
----------------------------------------------------------------------------
October 1, 1997 - March 31, 1998 $23,332.00 per month
----------------------------------------------------------------------------
April 1, 1998 - June 30, 1998 $38,333.00 per month
----------------------------------------------------------------------------
July 1, 1998 - June 30, 2002 $36,666.67 per month
----------------------------------------------------------------------------
July 1, 2002 - July 15, 2007 $39,166.67 per month
----------------------------------------------------------------------------
The Monthly Rent for the July Space and the Demised Premises shall be prorated
based on the actual date of delivery of premises to Tenant.
Page - 18
EXHIBIT "A"
[Floor Plan]
Page - 19
EXHIBIT "B"
BUILDING RULES AND REGULATIONS
1. The sidewalks, entryways, passages, corridors, stairways and elevators
shall not be obstructed by any of the tenants, their employees or agents, or
used by them for purposes other than ingress or egress to and from their
respective suites. All safes or other heavy articles shall be carried up or into
the leased premises only at such times and in such manner as shall be prescribed
by the Landlord and the Landlord shall in all cases have the right to specify a
maximum weight and proper position or location of any such safe or other heavy
article. The Tenant shall pay any damage done to the Building by taking in or
removing any safe or from overloading any floor in any way. The Tenant shall
pay for the cost of repairing or restoring any part of the Building, which shall
be defaced or injured by a tenant, it's agents or employees.
2. Each tenant will refer all contractors, contractor's representatives
and installation techniques rendering any service on or to the leased premises
for the tenant to Landlord for Landlord's approval and supervision before
performance of any contractual service. This provision shall apply to all work
performed in the Building, including installation of telephones, telegraph
equipment, electrical devices and attachments and installations of any nature
affecting floors, walls, woodwork, trim, windows, ceilings, equipment or any
other physical portion of the Building.
3. No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such
color, size and style and in such place upon or in the Building as shall first
be designated by Landlord; there shall be no obligation or duty on Landlord to
allow any sign, advertisement or notice to be inscribed, painted or affixed on
any part of the inside or outside of the Building except as specified in a
tenant's lease. Signs on or adjacent to doors shall be in color, size and style
approved by Landlord, the cost to be paid by the tenants. Landlord will provide
a directory in a conspicuous place, with the names of tenants, Landlord will
make any necessary revision in this within a reasonable time after notice from
the tenant of an error or of a change making revision necessary. No furniture
shall be placed in front of the Building or in any lobby or corridor without
written consent of Landlord.
4. No tenant shall do or permit anything to be done in it's leased
premises, or bring to keep anything therein, which will in any way increase the
rate of fire insurance on the Building, or on property kept therein, or obstruct
or interfere with the rights of other tenants, or in any way injure or annoy
them, or conflict with the laws relating to fire prevention and safety, or with
any regulations of the fire department, or with any insurance policy upon the
Building or any part thereof, or conflict with any rules or ordinances of any
Board of Health or other governing bodies having jurisdiction over the Building.
5. The janitor of the Building may at all times keep a pass-key, and he
and other agents of the Landlord shall at all times be allowed admittance to the
leased premises for purposes permitted in Tenant's lease.
Page - 20
6. No additional locks shall be placed upon any doors without the written
consent of the Landlord. All necessary keys shall be furnished by the Landlord,
and the same shall be surrendered upon the termination of this Lease, and the
Tenant shall then give the Landlord or his agents explanation of the combination
of all locks upon the doors of vaults.
7. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or abuse by a tenant or it's agents, employees or
invitees, shall be borne by the Tenant.
8. No person shall disturb the occupants of the Building by the use of
any musical instruments; the making or transmittal of noises which are audible
outside the leased premises, or any unreasonable use. No dogs or other animals
or pets of any kind will be allowed in the Building.
9. No bicycles or similar vehicles will be allowed in the Building.
10. Nothing shall be thrown out the windows of the building or down the
stairways or other passages.
11. Tenants shall not be permitted to use or to keep in the Building any
kerosene, camphene, burning fluid or other illuminating materials.
12. If any tenant desires telegraphic, telephonic or other electric
connections, Landlord or it's agents will direct the electricians as to what and
how the wires may be introduced, and without such directions no boring cutting
for wires will be permitted.
13. If a tenant desires shades, they must be of such shape, color,
materials and make as shall be prescribed by Landlord. No outside awning shall
be permitted.
14. No portion of the Building shall be used for the purposes of lodging
rooms or for any immoral or unlawful purposes.
Page - 21
RENT RIDER
PERIOD MONTHLY ANNUALLY
------ ------- --------
Months 1 - 3 $ 2,600.00 $ 31,200.00
Months 4 - 9 $23,332.00 $279,984.00
Months 10 - 12 $38,333.00 $459,996.00
Months 13 - 60 $36,666.67 $440,000.00
Months 61 - 120 $39,166.67 $470,000.00
Monthly Rent for the July Space payable prorata until delivery of Demised
Premises.
Page - 22
EXHIBIT D
AGREEMENT OF SALE
THIS AGREEMENT OF SALE (the "Agreement") is made this _____ day of
______________, 199___, between Marave Associates L.P., a Pennsylvania Limited
Partnership, hereinafter called Seller, and Cell Pathways, Inc., a Delaware
corporation, or its nominee, hereinafter called Buyer.
BACKGROUND
A. Seller is the owner of a certain tract or parcel of land with
improvements thereon located in Horsham Township, Xxxxxxxxxx County,
Pennsylvania and situate as shown on a Plan of Horsham Industrial Properties,
Inc. made by Xxxxxx X. Xxxxxxx, dated June 17, 1982 and revised and recorded in
the office for the Recording of Deeds in and for Xxxxxxxxxx County, Pennsylvania
in Plan Book A-44 page 259 (hereinafter the "Property." )
B. Buyer intends and hereby agrees to purchase the Property from Seller
under the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual promises herein contained,
the sufficiency of which is hereby acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Seller hereby agrees to sell, assign, transfer and convey the Property
to Buyer and Buyer hereby agrees to purchase the Property from Seller upon the
terms and conditions herein set forth.
2. The Purchase price to be paid by Buyer to Seller shall be Three
Million, Four Hundred Thousand ($3,400,000.00) Dollars (the "Purchase Price") to
be paid as follows:
a. Cash or certified check at the signing of this Agreement:$100,000.00
; and
b. Wired funds at Settlement:$3,300,000.00;
3. Settlement shall be held at a site to be determined, on or before
ninety (90) days from the date hereof.
4. Within sixty (60) days from the date of this Agreement, Buyer or its
nominee shall obtain and provide Seller with a mortgage commitment for the
purchase of the Property under the following terms and conditions:
a. Amount: 80% of the Purchase Price;
b. Amortization: 25 years or longer;
c. Payment due: 10 years or thereafter;
d. Interest rate: 9% or lower.
In the event the mortgage commitment is not obtained within the time set forth
above, notwithstanding reasonable efforts by Buyer and with the assistance of
Seller, Buyer shall not be required to purchase the Property. All deposit
monies paid on account shall be returned to Buyer.
5. The premises are to be conveyed free and clear of all liens,
encumbrances, and easements, excepting the following: existing building
restrictions, ordinances, easements of roads, privileges or rights of public
service companies, if any, or easements or restrictions visible upon the ground.
Otherwise the
2
title to the Property shall be good and marketable and such as will be insured
by any reputable Title Insurance Company at the regular rates.
6. In the event that Seller is unable to give a good and marketable title
or such as will be insured by any reputable Title Company, subject as aforesaid,
Buyer shall have the option of taking such title as the Seller can give without
abatement of price or of being repaid all monies paid by Buyer and held in
escrow on account of the purchase price and in the latter event there shall be
no further liability or obligation on either of the parties hereto and this
Agreement shall become null and void.
7. Seller hereby makes the following representations to Buyer:
a. Seller has obtained all consents, approvals, and authorizations from
all persons, entities, and governmental authorities required to enter into this
Agreement and to consummate the transaction contemplated hereby;
b. Seller has received no notices from any governmental or quasi
governmental agency that the Property is currently in violation of any law,
ordinance, rule or regulation;
c. There are currently no unpaid special assessments against the
Property, and Seller has no knowledge of any anticipated or pending special
assessments for improvements or capital expenditures, matured or unmatured;
d. The zoning classification of the Property is I2, Light
Manufacturing, and the present use of the Property is in
3
compliance with all applicable zoning and planning laws and ordinances;
e. There are no rollback taxes, interest, penalties and fees arising
out of this conveyance under Acts 319, 515 or other covenant; and
f. To Seller's knowledge, the Property has not been used for the
disposal of refuse or waste, or for the generation, processing, manufacture,
storage, handling, treatment or disposal of any hazardous or toxic waste,
substance, petroleum product or material ("Hazardous Substance"). No (i)
asbestos containing materials or (ii) machinery, equipment or fixtures
containing polychlorinated biphenyls ("PCBs"), or (iii) storage tanks for
gasoline or any other substance or (iv) urea formaldehyde foam insulation, have
been installed, used, stored, handled or located on or beneath the Property. To
Seller's knowledge, no Hazardous Substance has been installed, used stored,
handled or located on or beneath the Property, which Hazardous Substance, if
found on or beneath the Property, or improperly disposed of off of the Property,
would subject the owner or occupant of the Property to damages, penalties,
liabilities or an obligation to perform any work, cleanup, removal, repair,
construction, alteration, demolition, renovation or installation in or in
connection with the Property ("Environmental Cleanup Work"), in order to comply
with any federal, state or local law, regulation, ordinance or order concerning
the environmental state, condition or quality of the Property ("Environmental
Law") applicable to owner's,
4
operators or developers of real property. No notice from any governmental body
has ever been served upon Seller, or, to the best of Seller's knowledge after
due inquiry, any occupant or prior owner of the Property, or any portion
thereof, claiming any violation of any Environmental Law, or requiring or
calling attention to the need for any Environmental Cleanup Work on or in
connection with the Property in order to comply with any Environmental Law.
8. Buyer represents that its execution and performance of this Agreement
and the consummation of the transaction contemplated hereby has been duly
authorized by its directors and no other action is required by law, its Articles
of Incorporation, its Bylaws, or otherwise, for such authorization.
9. Real estate taxes, and water, sewer or other utility charges shall be
apportioned on a per diem basis at and as of the date of settlement. All real
estate transfer taxes will be divided equally between Buyer and Seller at
settlement.
10. Conveyance from Seller shall be by fee simple deed of special warranty.
11. Formal tender of an executed deed and purchase money is hereby waived.
12. Until the date of settlement, Seller shall maintain public liability
insurance and fire and extended coverage insurance on the property.
13. If prior to the date of settlement (a) all or a material part of the
building on the premises is destroyed by fire or the
5
elements or by any cause beyond either party's control, or (b) all or a material
part of the Property is taken by eminent domain, either party may by written
notice to the other elect to cancel this Agreement prior to the date of
settlement. In the event that either party shall so elect, both parties shall be
relieved and released of and from any further liability hereunder, and Seller
shall forthwith return to Buyer all deposit monies paid on account. Unless this
Agreement is so canceled, it shall remain in full force and effect, and Seller
shall pay to Buyer at settlement (and at any relevant time thereafter) any sums
of money collected (prior to Settlement or at a later date) by Seller under
policies of insurance or renewals thereof, after deducting any amounts Seller
shall have agreed to pay for repairs or restoration of the damage. In addition,
Seller shall assign, transfer and set over to Buyer all of Seller's right, title
and interest in and to said policies and further sums payable thereunder, and if
any part of the Property shall have been taken by eminent domain, Seller shall
assign , transfer and set over to Buyer all of Seller's right, title and
interest in and to any awards that may be made for such taking. If prior to the
date of settlement (a) an immaterial part of the main building on the premises
is destroyed by fire or the elements or by any cause beyond either party's
control, or (b) an immaterial part of the Property is taken by eminent domain,
neither party shall have the right to cancel this Agreement, and Buyer shall be
entitled to an equitable abatement of the Purchase Price to the extent of the
6
destruction or taking.
14. It is understood that Buyer has inspected the Property and that Buyer
has agreed to purchase it as a result of such inspection and not because of or
in reliance upon any representation made by Seller or by any agent of Seller,
other than as noted herein, and that Buyer has agreed to purchase it in its
present condition unless otherwise specified herein.
15. Any notices or ordinances filed prior to the date of Settlement by any
governing authority for which a lien could be filed are to be complied with at
the expense of Seller. Any such notices or ordinances filed subsequent to the
date of settlement are to be complied with at the expense of Buyer.
16. This Agreement and the Lease Agreement to which it is an Exhibit,
contain the whole Agreement between Seller and Buyer and there are no other
terms, obligations, covenants, representations, statements or conditions, oral
or otherwise of any kind whatsoever concerning this sale.
17. Any changes or additions to this Agreement must be made in writing and
executed by the parties hereto.
18. This Agreement shall be binding upon the respecting heirs, executors,
administrators, successors and, to the extent assignable, on the assigns of the
parties hereto.
19. This Agreement is to be construed and interpreted in accordance with
the laws of the Commonwealth of Pennsylvania.
20. All notices or other communications required or permitted to be given
under the terms of this Agreement shall be
7
in writing, sent by Certified Mail, postage prepaid, return receipt requested,
addressed as follows:
If to Buyer: If to Seller:
Cell Pathways, Inc. Marave Associates, L.P.
Two Electronic Drive 000 Xxxxx Xxxx
Xxxxxxx, XX Suite 6101
attn: Xxxxxx X. Xxxxxxxxxx Xxxxxxxxxxxx, XX 00000
attn: Xxxxxxx Xxxx
With a Copy to: With a Copy to:
Xxxxxx X. Xxxxxxxxx, Esquire N/A
Xxxxxxxxx & Xxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
or to such other address as the parties hereto provide in writing.
IN WITNESS WHEREOF, the parties hereto have hereunto set
their hands and seals, the day and year first above written.
SELLER
Marave Associates, L.P.
By:__________________________
General Partner
Attest:______________________
BUYER
Cell Pathways, Inc.
By:__________________________
Xxxxxx X. Xxxxxxxxxx,
Chief Executive Officer
Attest:______________________
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