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EXHIBIT 10.2
LEASE
BY AND BETWEEN
ARE-702 ELECTRONIC DRIVE, L.P.
as Landlord
and
CELL PATHWAYS, INC.
as Tenant
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TABLE OF CONTENTS
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PAGE
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1. Lease of Premises......................................................... 1
2. Basic Lease Provisions.................................................... 1
3. Term...................................................................... 2
4. Possession and Commencement Date.......................................... 3
5. Rent...................................................................... 3
6. Rent Adjustments.......................................................... 4
7. Operating Expenses........................................................ 4
8. Rentable Area............................................................. 7
9. Security Deposit.......................................................... 7
10. Use...................................................................... 8
11. Brokers.................................................................. 9
12. Holding Over............................................................ 10
13. Intentionally Deleted................................................... 10
14. Condition of Demised Premises........................................... 10
15. Intentionally Deleted................................................... 11
16. Utilities and Services.................................................. 11
17. Alterations............................................................. 12
18. Repairs and Maintenance................................................. 14
19. Liens................................................................... 15
20. Indemnification and Exculpation......................................... 15
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21. Insurance - Waiver of Subrogation...................................... 16
22. Damage or Destruction.................................................. 18
23. Eminent Domain......................................................... 19
24. Defaults and Remedies.................................................. 20
25. Assignment or Subletting............................................... 25
26. Attorneys' Fees and Costs............................................. 28
27. Bankruptcy............................................................ 28
28. Estoppel Certificate................................................... 29
29. Joint and Several Obligations.......................................... 29
30. Definition of Landlord; Limitation of Landlord's Liability............ 30
31. Project Control by Landlord............................................ 30
32. Quiet Enjoyment........................................................ 31
33. Quitclaim Deed......................................................... 31
34. Intentionally Deleted.................................................. 31
35. Subordination and Attornment........................................... 31
36. Surrender.............................................................. 32
37. Waiver and Modification................................................ 32
38. Waiver of Jury Trial and Counterclaims................................. 33
39. Hazardous Materials................................................... 33
40. Right to Extend Term................................................... 36
41. Tenant Signage......................................................... 37
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42. Miscellaneous ......................................................... 37
EXHIBIT "A" ................................................. LEGAL DESCRIPTION
EXHIBIT "B" ............................................................. PLANS
EXHIBIT "C" ................................................. TENANT'S PROPERTY
EXHIBIT "D" ....................................... TENANT ESTOPPEL CERTIFICATE
EXHIBIT "E" ....................................... FORM OF MEMORANDUM OF LEASE
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LEASE
THIS LEASE is made as of June 25, 1998 ("Effective Date"), by and between
ARE-702 Electronic Drive, L.P., a Delaware limited partnership ("Landlord") and
Cell Pathways, Inc., a Delaware corporation ("Tenant").
1. Lease of Premises
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
upon the terms and conditions hereof, those certain premises (the "Demised
Premises") which shall include the building (the "Building") located at the
address set forth below, and all public areas which are not a part of the
Building, including, without limitation, driveways, sidewalks, parking areas
and landscaped areas (the "Common Areas"). The legal description of the real
property upon which the Building and Common Areas are located ("Project") is
attached hereto as Exhibit "A".
2. Basic Lease Provisions
2.1. For convenience of the parties, certain basic provisions of this
Lease are set forth herein. The provisions set forth herein are subject to the
remaining terms and conditions of this Lease and are to be interpreted in light
of such remaining terms and conditions.
2.1.1 Address of the Building:
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx
2.1.2 Intentionally Deleted.
2.1.3 (a) Rentable Area of Demised Premises: 40,000 sq. ft.
(b) Rentable Area of Building and Project: 40,000 sq. ft.
2.1.4 Initial Basic Annual Rent: $819,000
2.1.5 Initial Monthly Rental Installments of Basic Annual Rent:
$68,250
2.1.6 Tenant's Pro Rata Share: 100% of the Building and Common Areas
2.1.7 (a) Term Commencement Date: As defined in Section 4.1 hereof.
(b) Term Expiration Date: Ten years from the Term Commencement
Date, subject to extension or earlier termination as
otherwise
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provided herein.
2.1.8 Security Deposit: $400,000.
2.1.9 Permitted Use: Scientific research laboratories and related office
uses consistent with Section 10 hereof.
2.1.10 Address for Rent Payment:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Accounts Receivable
Address for Notices to Landlord:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: General Counsel
With a copy to:
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Asset Management
2.1.11 Address for Notices to Tenant:
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
With a copy to:
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
2.1.12 The following Exhibits are attached hereto and incorporated herein:
Exhibit "A" -Exhibit "E"
3. Term
3.1. This Lease shall take effect upon the Effective Date, and, except as
specifically
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otherwise provided within this Lease, each of the provisions hereof shall be
binding upon and inure to the benefit of Landlord and Tenant, and each of their
respective successors and permitted assigns, from and after the Effective Date.
3.2. The term of this Lease (the "Term") shall be that period from the Term
Commencement Date as defined in Section 4.1 below and through the Term
Expiration Date, as such may be terminated or extended as provided herein.
4. Possession and Commencement Date
4.1. Landlord shall tender possession of the Demised Premises to Tenant on
the Effective Date.
4.2. Tenant has commenced and shall cause to be completed certain
improvements to the Demised Premises pursuant to the Plans attached hereto as
Exhibit "B" ("Tenant's Work") for which Landlord shall pay to Tenant the Tenant
Improvement Allowance (as defined below), which shall include the cost of
construction, cost of space planning, architect, engineering and other related
services, building permits, and other planning and inspection fees. Tenant shall
be entitled to an allowance to be used by Tenant towards construction of
Tenant's Work ("Tenant Improvement Allowance"), the amount of which shall be
THREE MILLION DOLLARS ($3,000,000).
4.3. Tenant, at Tenant's sole cost and expense and without cost to Landlord
(except for the Tenant Improvement Allowance), shall complete Tenant's Work in
all respects in accordance with the Plans. Tenant's Work shall be "Complete(d)"
at such time as Tenant shall (1) furnish evidence satisfactory to Landlord that
all of Tenant's Work has been completed and paid for in full (which may be
evidenced by Tenant's Architect's Certificate of Substantial Completion and
Tenant's Contractor's and subcontractor's final waivers and releases of liens)
(and such work has been accepted by Landlord); that any and all liens therefor
that have been or might be filed have been discharged of record (by payment,
bond, order of a court of competent jurisdiction or otherwise) or waived and
that no security interests relating thereto are outstanding; (2) furnish to
Landlord all certifications and approvals with respect to Tenant's Work that may
be required from any governmental authority and any board of fire underwriters
or similar body for the use and occupancy of the Demised Premises; and (3)
furnish an affidavit from Tenant's Architect certifying that all work performed
in the Demised Premises is in substantial accordance with the Plans. Landlord,
within ten (10) business days following receipt by Landlord of notice that
Tenant's Work is completed and the accompanying materials, shall pay to Tenant
the Tenant Improvement Allowance.
5. Rent
5.1. Tenant agrees, commencing on the Term Commencement Date, to pay
Landlord as Basic Annual Rent for the Demised Premises the sum set forth in
Section 2.1.4, subject to the rental increases provided in Section 6 hereof.
Basic Annual Rent shall be paid in the equal monthly installments set forth in
Section 2.1.5, subject to the rental increases provided in Section 6 hereof.
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each in advance on the first day of each and every calendar month during the
Term.
5.2. In addition to Basic Annual Rent, Tenant agrees to pay to Landlord as
additional rent ("Additional Rent") at times hereinafter specified in this Lease
(i) Tenant's pro rata share, as set forth in Section 2.1.6 ("Tenant's Pro Rata
Share") of Operating Expenses as provided in Section 7 and (ii) any other
amounts that Tenant assumes or agrees to pay under the provisions of this Lease
that are owed to Landlord, including, without limitation, any and all other sums
that may become due by reason of any default of Tenant or failure on Tenant's
part to comply with the agreements, terms, covenants and conditions of this
Lease to be performed by Tenant, after notice and lapse of applicable cure
period.
5.3. Basic Annual Rent and Additional Rent shall together be denominated
"Rent". Rent shall be paid to Landlord, without abatement, deduction, or offset,
in lawful money of the United States of America, at the office of Landlord as
set forth in Section 2.1.10 or to such other person or at such other place as
Landlord may from time to time designate in writing. In the event the Term
commences or ends on a day other than the first day of a calendar month, then
the Rent for such fraction of a month shall be prorated for such period on the
basis of a thirty (30) day month and shall be paid at the then current rate for
such fractional month.
6. Rent Adjustments
Basic Annual Rent shall be adjusted on the first (1st) anniversary of the
Term Commencement Date, and on such date every year thereafter during the Term
(each, a "Rent Adjustment Date"). On every Rent Adjustment Date, Basic Annual
Rent shall increase on account of any such adjustment three percent (3%) from
the prior year's Basic Annual Rent.
7. Operating Expenses
7.1. Tenant shall be responsible for the payment of, and shall directly
pay for the following costs and expenses ("Operating Expenses") with respect to
the Building and Common Areas:
7.1.1 Government impositions including, without limitation, property tax
costs consisting of real and personal property taxes and assessments (including
amounts due under any improvement bond upon the Building or the Common Areas,
including the parcel or parcels of real property upon which the Building or the
Common Areas are located or assessments levied in lieu thereof) imposed by any
governmental authority or agency; any tax on or measured by gross rentals
received from the rental of space in the Building, or tax based on the square
footage of the Demised Premises, the Building or the Common Areas as well as any
parking charges, utilities surcharges, or any other costs levied, assessed or
imposed by, or at the direction of, or resulting from statutes or regulations,
or interpretations thereof, promulgated by any federal, state, regional,
municipal or local government authority in connection with the use or occupancy
of the Building or the parking facilities serving the Building; any tax on this
transaction or any document to which Tenant is a party
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creating or transferring an interest in the Demised Premises; any fee for a
business license to operate an office building; and any expenses, including the
reasonable cost of attorneys or experts, reasonably incurred in seeking
reduction by the taxing authority of the applicable taxes, less tax refunds
obtained as a result of an application for review thereof, and any net income
franchise, capital stock, estate or inheritance taxes or taxes which are the
personal obligation of Tenant.
7.1.2 All other costs of any kind paid or incurred in connection with
the operation and maintenance of the Building and the Common Areas including, by
way of examples and not as a limitation upon the generality of the foregoing,
costs of repairs and replacements to the Building or the Common Areas (subject
to Section 7.2 hereof) as appropriate to maintain Building or the Common Areas
as required hereunder, license, permit and inspection fees; sales, use and
excise taxes on goods and services purchased by Tenant in connection with the
operation, maintenance or repair of the Common Areas and Building systems and
equipment; telephone, postage, stationary supplies and other expenses incurred
in connection with the operation, maintenance, or repair of the Common Areas;
accounting, legal and other professional fees and expenses incurred in
connection with the Common Areas; costs of complying with any applicable laws or
hazardous waste remediation rules or regulations, except to the extent the
compliance relates to an event or condition that occurred or arose out of
conditions that occurred or were caused prior to the date upon which Tenant took
possession of the Demised Premises pursuant to a prior lease with Marave
Associates L.P.; the costs of any subsequent tenant or other capital improvement
to the property, including, without limitation, the costs of capital
improvements required to cause the Building to comply with any retroactive law,
rule or regulation; and service contracts; costs of services of independent
contractors retained to do work of nature or type herein referenced.
7.1.3 All costs of insurance, including premiums and deductibles for
environmental insurance, public liability, property casualty, earthquake and
environmental coverages; portions of insured losses paid by Landlord as part of
the deductible portion of such losses by reason of insurance policy terms; costs
of management services, which fee for property management services shall not
exceed two percent (2%) of the Basic Annual Rent.
7.1.4 Notwithstanding the foregoing, after the fifth (5th) anniversary
of the Effective Date, the cost of any capital improvements installed shall be
prorated over a five (5) year period, such that, upon the installation of such
capital improvement, Tenant shall only pay the prorated portion of the capital
improvement for the remainder of the Term, and Landlord shall be responsible for
paying any remainder, provided, that, if Tenant shall extend the Lease beyond
the Initial Term, any amounts paid by Landlord pursuant to this Section 7.1.2
shall be reimbursed by Tenant.
7.2. As used herein, the term "Operating Expenses" shall not include costs
incurred by Landlord pursuant to its obligations under Section 18.1 hereof,
including capital expenditures related thereto; any uninsured loss under any
insurance policy required to be carried by Landlord pursuant to Section 21.1 and
Section 21.2, unless such loss results in whole or in part from any act,
neglect, fault of or omissions of any duty by Tenant, or its agents, servants,
employees or invitees; leasing
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commissions; expenses of initial development and construction, including but not
limited to, grading, paving, landscaping, and decorating; costs of repair to the
extent reimbursed by payment received by Landlord of insurance proceeds;
interest upon loans to Landlord or secured by mortgages or deeds of trust
covering the Demised Premises or a portion thereof (provided interest upon a
government assessment or improvement bond payable in installments is an expense
under Section 7.1.1 above); salaries of executive officers of Landlord;
depreciation claimed by Landlord for tax purposes (provided this exclusion of
"depreciation" is not intended to delete from Operating Expenses actual costs
of repairs and replacements which are provided for in Section 7.1.2 above); and
taxes of the types set forth within the last sentence of Section 7.1.1 above.
7.3. Tenant shall pay to Landlord on the first day of each calendar month
of the Term, as Additional Rent, Landlord's estimate of Operating Expenses set
forth in Section 7.1.3 for such month.
7.3.1 Within ninety (90) days after the conclusion of each calendar
year (or such longer period as may be reasonably required), Landlord shall
furnish to Tenant a statement showing in reasonable detail the actual Operating
Expenses set forth in Section 7.1.3 for the previous calendar year. Any
additional sum due from Tenant to Landlord shall be immediately due and payable.
If the amounts paid by Tenant pursuant to Section 7.3 exceeds the Operating
Expenses for the previous calendar year, Landlord shall, at Landlord's option,
either (i) credit the excess amount to the next succeeding installments of
estimated Additional Rent, or (ii) pay the excess to Tenant within thirty (30)
days after delivery of such statements.
7.3.2 Any amount due under Section 7.3 for any period which is less
than a full month shall be prorated (based on a thirty (30) day month) for such
fractional month.
7.4. Landlord's annual statement shall be final and binding upon Tenant
unless Tenant, within thirty (30) days after Tenant's receipt thereof, shall
contest any item therein by giving written notice to Landlord, specifying each
item contested and the reason therefor. If, during such thirty (30) day period,
Tenant reasonably and in good faith questions or contests the correctness of
Landlord's statement of Operating Expenses, Landlord will provide Tenant with
access to Landlord's books and records and such information as Landlord
reasonably determines to be responsive to Tenant questions. In the event that
after Tenant's review of such information, Landlord and Tenant cannot agree
upon the amount of Operating Expenses, then Tenant shall have the right to have
an independent public accounting firm selected from among the ten (10) largest
in the United States hired by Tenant (at Tenant's sole cost and expense) and
approved by Landlord (which approval shall not be unreasonably withheld or
delayed) audit and/or review such Landlord's books and records for the year in
question (the "Independent Review"). The results of any such Independent Review
shall be binding on Landlord and Tenant. If the Independent Review shows that
Operating Expenses actually paid for the calendar year in question exceeded
Tenant's obligations for such calendar year, Landlord shall at Landlord's
option either (1) credit the excess amount to the next succeeding installments
of estimated Additional Rent or (2) pay the excess to Tenant within thirty (30)
days after delivery of such statement. If the Independent Review shows that
Tenant's payments of Operating
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Expenses for such calendar year were less than Tenant's obligation for the
calendar year, Tenant shall pay the deficiency to the Landlord within thirty
(30) days after delivery of such statement.
7.5. Tenant shall not be responsible for Operating Expenses attributable
to the time period prior to the Term Commencement Date. The responsibility of
Tenant for Operating Expenses shall continue to the latest of (i) the date of
termination of the Lease, (ii) the date Tenant has fully vacated the Demised
Premises (including, without limitation, the removal of all items required
hereby to be removed and the completion of all procedures necessary to fully
release and terminate any permits or licenses restricting the use of the Demised
Premises in any manner), or (iii) if termination of the Lease is due to the
default of Tenant, the date of rental commencement of a replacement tenant.
7.6. Operating Expenses for the calendar year in which Tenant's obligation
to share therein commences and in the calendar year in which such obligation
ceases, shall be prorated on a basis reasonably determined by Landlord.
Expenses such as taxes, assessments and insurance premiums which are incurred
for an extended time period shall be prorated based upon time periods to which
applicable so that the amounts attributed to the Demised Premises relate in a
reasonable manner to the time period wherein Tenant has an obligation to share
in Operating Expenses.
7.7. The parties agree that statements in this Lease to the effect that
Landlord is to perform certain of its obligations hereunder at its own or sole
cost and expense shall not be interpreted as excluding any cost from Operating
Expenses if such cost is an Operating Expense pursuant to the terms of this
Lease.
8. Rentable Area
The Rentable Area of the Demised Premises and the Rentable Area of the
Building shall be as set forth in Section 2.1.3 hereof.
9. Security Deposit
9.1. Tenant has deposited with Landlord the sum set forth in Section 2.1.8
(the "Security Deposit") in cash or a Letter of Credit (as hereinafter
defined), which Security Deposit shall be held by Landlord as security for the
performance by Tenant of all of the terms, covenants, and conditions of this
Lease to be kept and performed by Tenant during the Term. If Tenant defaults
with respect to any provision of this Lease, including, but not limited to, any
provision relating to the payment of Rent, Landlord may (but shall not be
required to) use, apply or retain all or any part of the Security Deposit for
the payment of any Rent or any other sum in default, or to compensate Landlord
for any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of the Security Deposit is so used or applied, Tenant
shall, upon demand therefor, deposit cash (or replenish the Letter of Credit if
elected pursuant to Section 9.2 hereof) with Landlord in an amount sufficient
to restore the Security Deposit to its original amount, and Tenant's failure to
do so shall be a material breach of this Lease. Landlord shall not be required
to keep the Security
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Deposit separate from its general fund, and Tenant shall not be entitled to any
interest on the Security Deposit.
9.2. In lieu of depositing cash as the Security Deposit, Tenant shall have
the right, but not the obligation, to deliver to Landlord an unconditional,
irrevocable standby letter of credit in the amount of $400,000 (the "Letter of
Credit"), which Letter of Credit shall (i) be in a form reasonably acceptable
to Landlord, (ii) be issued by the Northern Trust Company, (iii) be for the
benefit of Landlord, but shall be assignable by Landlord to any subsequent
purchaser or encumbrancer of the Demised Premises, (iv) be automatically
renewable from year to year throughout the Term, (v) be payable by draft sight
in San Diego or La Jolla, California, and/or by facsimile and overnight
delivery to Chicago, Illinois, upon presentation of a certification signed by
an officer of Landlord which states that a default under the Lease has occurred
and has not been cured within any applicable cure period, and (vi) be payable
in the event such Letter of Credit is not renewed on or before the date which
is thirty (30) days prior to its expiration.
9.3. In the event of bankruptcy or other debtor-creditor proceedings
against Tenant, the Security Deposit shall be deemed to be applied first to the
payment of Rent and other charges due Landlord for all periods prior to the
filing of such proceedings.
9.4. Landlord may deliver the Security Deposit to any purchaser of
Landlord's interest in the Demised Premises and thereupon Landlord shall be
discharged from any further liability with respect to the Security Deposit.
This provision shall also apply to any subsequent transfers.
9.5. If Tenant shall fully perform every provision of this Lease to be
performed by Tenant, the Security Deposit, or any balance thereof, shall be
returned to Tenant (or, at Landlord's option, to the last assignee of Tenant's
interest hereunder) within ninety (90) days after the expiration or earlier
termination of this Lease.
10. Use
10.1. Tenant shall use the Demised Premises for the purpose set forth in
Section 2.1.9 and shall not use the Demised Premises, or permit or suffer the
Demised Premises to be used, for any other purpose without the prior written
consent of Landlord which may be withheld in Landlord's sole discretion.
10.2. Tenant shall not use or occupy the Demised Premises in violation of
any federal, state and local laws and regulations, zoning ordinances, or of the
certificate of occupancy issued for the Building, and shall, upon five (5)
days' written notice from Landlord, discontinue any use of the Demised Premises
which is determined by any governmental authority having jurisdiction to be a
violation of law, regulation or zoning ordinance or the certificate of
occupancy, or which in the reasonable opinion of Landlord violates law,
regulation, zoning ordinance or the certificate of occupancy. Tenant shall
comply with any direction of any governmental authority having jurisdiction
which shall, by reason of the nature of Tenant's use or occupancy of the Demised
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Premises, impose any duty upon Tenant or Landlord with respect to the Demised
Premises or with respect to the use or occupation thereof.
10.3. Tenant shall not do or permit to be done anything which will
invalidate any fire, environmental, extended coverage or any other insurance
policy covering the Building and Common Areas and shall comply with all rules,
orders, regulations, and requirements of the insurers of the Building and Common
Areas.
10.4. Tenant shall at all times provide Landlord with a key to all
entrances to the Building, and shall make available keys to interior areas upon
reasonable advance notice of Landlord. Tenant must, upon termination of this
Lease return to Landlord all keys to the entrances to the Building and to
offices and restrooms, either furnished to, or otherwise procured by Tenant. In
the event any key so furnished is lost, Tenant shall pay to Landlord the cost of
replacing the same or of changing the lock or locks opened by such lost key if
Landlord shall deem it necessary to make such change.
10.5. Tenant shall not use or allow the Demised Premises to be used for
immoral or unlawful purpose, nor shall Tenant knowingly cause, maintain or
permit any nuisance or waste in, on, or about the Building or Common Areas.
10.6. Notwithstanding any other provision herein to the contrary, Tenant
shall be responsible for all liabilities, costs and expense arising out of or in
connection with the compliance of the Demised Premises, the Building and the
Common Areas as occupied and used by Tenant with the Americans With Disabilities
Act, 42 U.S.C. Section 12101, et seq. (together with regulations promulgated
pursuant thereto, "ADA") and Tenant shall indemnify, defend and hold harmless
from and against any loss, cost, liability or expense (including reasonable
attorneys fees and disbursements) arising out of any failure of the Demised
Premises, the Building and the Common Areas to comply with the ADA.
11. Brokers
11.1. Tenant represents and warrants that it has had no dealings with any
real estate broker or agent in connection with the negotiation of this Lease and
knows of no real estate broker or agent who is or might be entitled to a
commission in connection with this Lease, other than as stated in Section 11.5
hereof.
11.2. Tenant hereby indemnifies and shall defend, hold and save Landlord
harmless from and against any and all claims for any commissions or fees in
connection with this Lease made by any broker or finder having worked, or
claiming to have worked, on behalf of Tenant, other than as stated in Section
11.5 hereof.
11.3. Tenant represents and warrants that no broker or agent has made any
representation or warranty relied upon by Tenant in Tenant's decision to enter
into this Lease other than as contained in this Lease.
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11.4. Tenant acknowledges and agrees that the employment of brokers by
Landlord is for the purpose of solicitation of offers of lease from prospective
tenants and no authority is granted to any broker to furnish any representation
(written or oral) or warranty from Landlord unless expressly contained within
this Lease. Landlord in executing this Lease does so in reliance upon Tenant's
representations and warranties contained within Sections 11.1 and 11.3 hereof.
11.5. Landlord hereby indemnifies and agrees to defend, hold and save
Tenant harmless from and against any and all claims for any commission or fees
in connection with this Lease made by any broker or finder having worked, or
claiming to have worked, on behalf of Landlord, including from Xxxxxx Xxxxxxxx
of Xxxxxx X. Xxxxxxx, Inc.
12. HOLDING OVER
12.1. If, with Landlord's express written consent, Tenant holds possession
of all or any part of the Demised Premises after the expiration or earlier
termination of the Term, Tenant shall become a tenant from month-to-month upon
the date of such expiration or earlier termination, and in such case Tenant
shall continue to pay Basic Annual Rent in the amount payable upon the date of
the expiration or earlier termination of this Lease or such other amount as
Landlord may indicate, in Landlord's sole and absolute discretion, in such
written consent, and all other provisions, representations, covenants and
agreements contained herein, other than with respect to the Term and any
extensions thereof, but specifically including, without limitation, the
adjustment of Basic Annual Rent pursuant to Article 6 hereof, shall remain in
full force and effect.
12.2. Notwithstanding the foregoing, if Tenant remains in possession of the
Demised Premises after the expiration or earlier termination of the Term
without the express written consent of Landlord, Tenant shall become a tenant
at sufferance upon the terms of this Lease except that the monthly rental shall
be equal to one hundred fifty percent (150%) of the Basic Annual Rent and
Additional Rent in effect during the last thirty (30) days of the Term. Tenant
shall be responsible for all damages suffered by Landlord resulting from or
occasioned by Tenant's holding over.
12.3. Acceptance by Landlord of Rent after such expiration or earlier
termination of the Term shall not result in a renewal or reinstatement of this
Lease.
12.4. The foregoing provisions of this Article 12 are in addition to and do
not affect Landlord's right to re-entry or any other rights of Landlord
hereunder or as otherwise provided by law.
13. INTENTIONALLY DELETED.
14. CONDITION OF DEMISED PREMISES
Tenant acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the condition of the
Demised Premises, or with respect
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to the suitability for the conduct of Tenant's business. Tenant shall accept the
Demised Premises AS-IS WHERE IS with all faults. The taking of possession of the
Demised Premises by Tenant shall, except as otherwise agreed in writing by
Landlord and Tenant conclusively establish that the Demised Premises and
Building were at such time in good, sanitary and satisfactory condition and
repair.
15. INTENTIONALLY DELETED
16. UTILITIES AND SERVICES
16.1. Tenant shall pay directly for all water, (including the cost to
service, repair and replace reverse osmosis, deionized and other treated water)
gas, heat, light, power, telephone and other utilities supplied to the Demised
Premises and the Common Areas, together with any fees, surcharges and taxes
thereon.
16.2. Tenant shall pay directly for all sewer fees, cable T.V., trash
collection, cleaning, including windows, heating, ventilation, air-conditioning,
maintenance of landscape and grounds, maintenance of drives and parking areas,
security services and devices, building supplies, and maintenance for and
replacement of equipment utilized for operation and maintenance of the Building
and the Common Areas.
16.3. Landlord shall not be liable for, nor shall any eviction of Tenant
result from, the failure to furnish any such utility or service whether or not
such failure is caused by accident, breakage, repairs, strikes, lockouts or
other labor disturbances or labor disputes of any character, governmental
regulation, moratorium or other governmental action, inability despite the
exercise of reasonable diligence or by any other cause, including the gross
negligence of Landlord. In the event of such failure, Tenant shall not be
entitled to any abatement or reduction of Rent, nor be relieved from the
operation of any covenant or agreement of this Lease.
16.4. Tenant shall pay directly to the applicable utility or service
provider, prior to delinquency, for all utilities and services which may be
furnished to Tenant, the Demised Premises or the Common Areas during the Term.
16.5. Landlord reserves the right to stop service of Building systems at
any time, when necessary, by reason of accident or emergency or for repairs,
alterations or improvements, in the judgment of Landlord desirable or necessary
to be made pursuant to Section 18.1 hereof, until said repairs, alterations or
improvements shall have been completed. It is expressly understood and agreed
that any covenants on Landlord's part to furnish any service pursuant to any of
the terms, covenants, conditions, provisions or agreements of this Lease, or to
perform any act or thing for the benefit of Tenant, shall not be deemed
breached if Landlord is unable to furnish or perform the same by virtue of a
strike or labor trouble or any other cause whatsoever.
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16.6. Subject to Landlord's obligation under Section 18.1 hereof, and
to the condition of the Demised Premises upon the Effective Date, Tenant shall
at all times maintain the Building and the Common Areas in a first class manner
equivalent to other comparable properties reasonably proximate to the Building
in the same city and/or geographic area.
17. Alterations
17.1. Except for alterations which individually do not exceed $10,000, and
other than Tenant's Work, Tenant shall make no alterations, additions or
improvements in or to the Demised Premises or the Common Areas without
Landlord's prior written consent, which approval shall not be unreasonably
withheld (provided, however, that in the event any proposed alteration,
addition or improvement affects (i) any structural portions of the Building
including exterior walls, roof, foundation and core of the Building, (ii) the
exterior of the Building or (iii) any Building systems, including elevator,
plumbing, air conditioning, heating electrical, security, life safety and power,
then Landlord may withhold its consent with respect thereto in its reasonable
discretion regardless of the cost of the alterations), and then only by
architects, contractors, suppliers or mechanics approved by Landlord in
Landlord's reasonable discretion.
17.2. Intentionally Deleted.
17.3. Tenant agrees that any work by Tenant shall be accomplished in such
a manner as to permit any fire sprinkler system and fire water supply lines to
remain fully operable at all times.
17.4. Tenant covenants and agrees that all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
directions, regulations, and requirements of all governmental agencies,
offices, departments, bureaus and boards having jurisdiction, and in full
compliance with the rules, orders, directions, regulations, and requirements of
any applicable fire rating bureau. Tenant shall provide Landlord with
"as-built" plans showing any change in the Demised Premises.
17.5. In seeking Landlord's approval, Tenant shall provide Landlord, at
least fourteen (14) days in advance of any proposed construction, with plans,
specifications, bid proposals, work contracts and such other information
concerning the nature and cost of the alterations as may be reasonably
requested by Landlord, and shall, if required by Landlord, secure at Tenant's
own cost and expenses a completion and lien indemnity bond satisfactory to
Landlord for said work.
17.6. All alterations, attached equipment, decorations, fixtures, trade
fixtures, additions and improvements, subject to Section 17.8, attached to or
built into the Demised Premises, made by either of Landlord or Tenant, including
(without limiting the generality for the foregoing) all floor and wallcovering,
built-in cabinet work and paneling, sinks and relating plumbing fixtures,
exterior venting fume hoods and walk-in freezers and refrigerators, clean rooms,
climatized rooms, ductwork, conduits, electrical panels and circuits, shall
become the property of Landlord upon the expiration or earlier termination of
the term of this Lease, and shall remain upon and be surrendered with the
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Demised Premises as a part thereof, provided, however, that Landlord may,
subject to the following sentence, at any time elect to cause Tenant to remove
any such items from the Demised Premises any such items installed after
the Effective Date upon the expiration or earlier termination of this Lease,
and, if Landlord so elects, Tenant shall remove such alterations, attached
equipment, decorations, fixtures, trade fixtures, additions and improvements
upon the expiration or earlier termination of this Lease and restore any damage
caused by or occasioned as a result of such result. Landlord will inform Tenant
of whether Tenant will be required to remove any or all of the alterations
concurrently with approving Tenant's proposed specifications for the
alterations. It shall be reasonable for Landlord to reject Tenant's request to
make alterations if pursuant thereto Tenant has requested that the alterations
remain part of the Demised Premises upon the expiration or earlier termination
of the Lease with no obligation of Tenant to remove them.
17.7. Tenant shall repair any damage to the Demised Premises caused by
Tenant's removal of any property from the Demised Premises. During any such
restoration period, Tenant shall pay Rent to Landlord as provided herein as if
said space were otherwise occupied by Tenant.
17.8. Except as to those items listed on Exhibit "C" attached hereto and
incorporated herein (together with Tenant's personal property and items which
Landlord elects to cause Tenant to remove pursuant to Section 17.6, "Tenant's
Property"), all business and trade fixtures, machinery and equipment (but not
including office and laboratory furniture and equipment and other movable
items), built-in furniture and cabinets, together with all additions and
accessories thereto, installed in and upon the Demised Premises shall be and
remain the property of Landlord and shall not be moved by Tenant at any time
during the Term. If Tenant shall fail to remove all of Tenant's Property from
the Demised Premises prior to termination of this Lease, then Landlord may, at
its option, remove the same in any manner that Landlord shall choose, and store
all such items without liability to Tenant for loss thereof or damage thereto,
and Tenant agrees to pay Landlord upon demand any expenses incurred in
connection with such removal and storage. To the extent permitted by law or
equity, Landlord may, at its option, without notice, sell such property or any
of the same, at private sale and without legal process, for such price as
Landlord may obtain and apply the proceeds of such sale against any amounts due
under this Lease from Tenant to Landlord and against any expenses incident to
the removal, storage and sale of such property. Tenant shall not be permitted
to remove (i) any part of the Building's systems, (ii) anything purchased or
paid for by Landlord directly or through the payment by Landlord to Tenant of
any construction or improvement allowance including the Tenant Improvement
Allowance, or (iii) anything that could result in significant damage to the
Building.
17.9. Notwithstanding any other provision of this Article 17 to the
contrary, in no event may Tenant remove any improvement from the Demised
Premises as to which Landlord contributed payment, including, without
limitation, the Tenant's Work referred to on Exhibit "B", without Landlord's
prior written consent, which may be withheld in Landlord's sole discretion.
17.10. Tenant shall pay to Landlord, as Additional Rent, an amount equal
to the lesser of (i) five percent (5%) of the cost to Tenant of all charges
incurred by Tenant or its contractors or
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agents in connection with any alterations, additions or improvements to the
Demised Premises and (ii) $25,000, to cover Landlord's overhead and expenses
for plan review, coordination, scheduling and supervision thereof. For purposes
of payment of such sum, Tenant shall submit to Landlord copies of all bills,
invoices, and statements covering the costs of such charges, which will be
accompanied by payment to Landlord of the percentage fee set forth above.
Tenant shall reimburse Landlord for any extra expense incurred by Landlord by
reason of faulty work done by Tenant or its contractors, or by reason of delays
caused by such work, or by reason of inadequate cleanup.
17.11. Prior to commencement of any work or the delivery of any material to
the Demised Premises by any contractor, subcontractor or materialman (herein
collectively called "Contractor"), Tenant shall deliver to Landlord a signed,
acknowledged and sealed waiver of liens (herein called "Contractor's Waiver of
Liens") from each such Contractor in form and content reasonably satisfactory to
Landlord, and Tenant shall at Tenant's expense cause a duly executed and
notarized counterpart thereof to be filed with the Prothonotary of the county in
which the Demised Premises are located. The Contractor's Waiver of Liens shall
provide, among other things, that the Contractor waives any and all lien rights
that it may have against Landlord's estate, rights, title and interest in the
Demised Premises and the Common Areas, and any part thereof. Landlord shall have
the right to post and keep posted in the Demised Premises and Common Areas
notices of non-responsibility, or such other notices as Landlord may deem to be
proper for the protection of Landlord or Landlord's estate, right, title and
interests in the Demised Premises and Common Areas and any part thereof.
18. Repairs and Maintenance
18.1. Landlord shall maintain the structural portions of the Building only,
including, without limitation, the structural portions of the roof and covering
materials, foundations and exterior walls, and the full cost thereof shall not
be included as a part of Operating Expenses, unless such maintenance or repairs
are required in whole or in part because of any act, neglect, fault of or
omissions of any duty by Tenant, its agents, servants, employees or invitees, in
which case Tenant shall pay to Landlord the cost of such maintenance and repairs
as Additional Rent.
18.2. Except for Landlord's obligation under Section 18.1, Tenant shall at
Tenant's sole cost and expense keep the Demised Premises and every part thereof
in good condition and repair, in the manner described in Section 16.6 hereof,
damage thereto from ordinary wear and tear excepted. Tenant shall, upon the
expiration or earlier termination of this Lease, surrender the Demised Premises
to Landlord in as good as condition as when received, ordinary wear and tear
excepted. Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Demised Premises or any part thereof.
18.3. Landlord shall not be liable for any failure to make any repairs or
to perform any maintenance which is an obligation of Landlord unless such
failure shall persist for an unreasonable time after written notice of the need
of such repairs or maintenance is given to Landlord by Tenant. Tenant waives
the rights under any law, statute or ordinance now or hereafter in effect to
make repairs at Landlord's expense.
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18.4. In the event of fire, earthquake, flood, vandalism, war, or similar
cause of damage or destruction, this Article 18 shall not be applicable and the
provisions of Article 22 shall apply and control.
19. Liens
19.1. Tenant shall keep the Demised Premises and the real property upon
which the Building is situated free from any liens arising out of work
performed, materials furnished or obligations incurred by Tenant. Tenant further
covenants and agrees that any mechanic's lien filed against the Building or the
Common Areas for work claimed to have been done for, or materials claimed to
have been furnished to Tenant, will be discharged by Tenant, by bond or
otherwise, within ten (10) days after the filing thereof, at the sole cost and
expense of Tenant.
19.2. Should Tenant fail to discharge any lien of the nature described in
Section 19.1, Landlord may at Landlord's election pay such claim or post a bond
or otherwise provide security to eliminate the lien as a claim against title and
the cost thereof shall be immediately due from Tenant as Additional Rent.
19.3. In the event Tenant shall lease or finance the acquisition of office
equipment, furnishings, or other personal property of a removable nature
utilized by Tenant in the operation of Tenant's business or which are Tenant's
Property, Tenant warrants that any Uniform Commercial Code Financing Statement
executed by Tenant will upon its face or by exhibit thereto indicate that such
Financing Statement is applicable only to such Tenant's Property located within
the Demised Premises. In no event shall the address of the Building be furnished
on the statement without qualifying language as to applicability of the lien
only to such Tenant's Property, located in an identified suite held by Tenant.
Should any holder of a Financing Statement executed by Tenant record or place of
record a Financing Statement which appears to constitute a lien against any
interest of Landlord or against equipment which may be located other than within
the Demised Premises, Tenant shall within ten (10) days after filing such
Financing Statement cause (i) a copy of the Security Agreement or other
documents to which Financing Statement pertains to be furnished to Landlord to
facilitate Landlord's being in a position to show such lien is not applicable to
Landlord's interest, and (ii) cause Tenant's lender to amend any documents of
record so as to clarify that such lien is not applicable to any interest of
Landlord in the Building or the Common Areas.
20. Indemnification and Exculpation
20.1. Tenant hereby indemnifies and agrees to defend, hold and save
Landlord harmless from and against any and all demands, claims, liabilities,
losses, costs, expenses, actions, causes of action, damages or judgments, and
all reasonable expenses incurred in investigating or resisting the same
(including, without limitation, reasonable attorneys' fees, charges and
disbursements), for injury or death to person or injury to property occurring
within or about the Demised Premises or the Common Areas, arising directly or
indirectly out of Tenant's, it's employees, agents or guests use
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or occupancy of the Demised Premises or a breach or default by Tenant in the
performance of any of its obligations hereunder, except to the extent caused
solely by the willful act or negligence of the Landlord.
20.2. Landlord shall not be liable to Tenant and Tenant assumes all risk of
damage to personal property or scientific research, including loss of records
kept within the Demised Premises if the cause of such damage is of a nature
which, if Tenant had elected to maintain fire and theft insurance with extended
coverage and business records endorsement available on a commercially reasonable
basis, would be a loss subject to settlement by the insurance carrier,
including, but not limited to, damage or losses caused by fire, electrical
malfunctions, gas explosion, and water damage of any type, including, but not
limited to, broken water lines, malfunction of fire sprinkler system, roof
leakage or stoppages of lines unless and except if such loss is due to willful
disregard of Landlord after written notice by Tenant of need for a repair which
Landlord is responsible to make for an unreasonable period of time. Tenant
further waives any claim for injury to Tenant's business or loss of income
relating to any such damage or destruction of personal property including any
loss of records.
20.3. Landlord shall not be liable for any damages arising from any act,
omission or neglect of any third party.
20.4. Security devices and services, if any, while intended to deter crime
may not in given instances prevent theft or other criminal acts. Tenant
acknowledges and agrees that Landlord shall not be liable for injuries or losses
caused by criminal acts of third parties, and Tenant assumes the risk that a
criminal may circumvent any security device or service or that a security device
or service may malfunction. Tenant shall, at Tenant's cost, obtain insurance
coverage to the extent Tenant desires protection against such criminal acts.
21. Insurance - Waiver of Subrogation
21.1. Landlord, as part of Operating Expenses, shall carry insurance upon
the Building, in an amount equal to full replacement cost (exclusive of the
costs of excavation, foundations, and footings, and without reference to
depreciation taken by Landlord upon its books or tax returns) or such lesser
coverage as Landlord may elect provided such coverage is not less than ninety
percent (90%) of such full replacement cost or the amount of such insurance
Landlord's mortgage lender requires Landlord to maintain, providing protection
against any peril generally included within the classification "Fire and
Extended Coverage" together with insurance against sprinkler damage (if
applicable), vandalism and malicious mischief. Landlord, subject to availability
thereof and, as part of Operating Expenses, shall further insure as Landlord
deems appropriate coverage against flood, environmental hazard and earthquake,
loss or failure of building equipment, rental loss during the period of repair
or rebuild, workmen's compensation insurance and fidelity bonds for employees
employed to perform services. Notwithstanding the foregoing, Landlord may, but
shall not be deemed required to, provide insurance as to any improvements
installed by Tenant or which are in addition to the standard improvements
customarily furnished by Landlord without regard to whether
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or not such are made a part of the Building.
21.2. Landlord, as part of Operating Expenses, shall further carry public
liability insurance, from carriers satisfying the requirements set forth in
Section 21.4 hereof, with a single loss limit of not less than Five Million
Dollars ($5,000,000.00) for death or bodily injury, or property damage with
respect to the Demised Premises. Landlord shall obtain for Tenant from the
insurance companies or cause the insurance companies to furnish certificates of
coverage to Tenant within fifteen (15) days of receiving written request
therefore from Tenant; provided, that, Tenant shall not be named as an
additional insured under any such policy.
21.3. Tenant at its own cost shall procure and continue in effect from the
Term Commencement Date and continuing throughout the Term (and occupancy by
Tenant, if any, after the expiration or earlier termination of this Lease)
comprehensive public liability insurance with limits of not less than Five
Million Dollars ($5,000,000.00) per occurrence for death or bodily injury and
not less than Five Million Dollars ($5,000,000.00), or such lesser amount as
shall represent the replacement value of Tenant's Property, for property damage
with respect to the Demised Premises.
21.4. The aforesaid insurance required of Tenant shall name Landlord, its
officers, employees and agents, as an additional insured. Said insurance shall
be with companies having a rating of not less than policyholder rating of A and
financial category rating of at least Class XII in "Best's Insurance Guide."
Tenant shall obtain for Landlord from the insurance companies or cause the
insurance companies to furnish certificates of coverage to Landlord. No such
policy shall be cancelable or subject to reduction of coverage or other
modification or cancellation except after thirty (30) days prior written notice
to Landlord from the insurer. All such policies shall be written as primary
policies, not contributing with and not in excess of the coverage which
Landlord may carry. Tenant's policy may be a "blanket policy" which
specifically provides that the amount of insurance shall not be prejudiced by
other losses covered by the policy. Tenant shall, at least twenty (20) days
prior to the expiration of such policies, furnish Landlord with renewals or
binders. Tenant shall, at least twenty (20) days prior to the expiration of
such policies, furnish Landlord with renewals or binders. Tenant agrees that if
Tenant does not take out and maintain such insurance, Landlord may (but shall
not be required to) procure said insurance on Tenant's behalf and require
Tenant to pay for the additional cost of such insurance as Additional Rent.
21.5. Tenant assumes the risk of damage to any fixtures, goods, inventory,
merchandise, equipment, and leasehold improvements, and Landlord shall not be
liable for injury to Tenant's business or any loss of income therefrom relative
to such damage all as more particularly heretofore set forth within this Lease.
Tenant at Tenant's cost shall carry such insurance as Tenant desires for
Tenant's protection with respect to personal property of Tenant or business
interruption.
21.6. In each instance where insurance is to name Landlord as an additional
insured, Tenant shall upon written request of Landlord also designate and
furnish certificates so evidencing Landlord as an additional insured to (i) any
lender of Landlord holding a security interest in the Building or real property
upon which the Building is situated, and/or (ii) the landlord under any lease
wherein Landlord is tenant of the real property whereupon the Building is
located if the interest of Landlord
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is or shall become that of a tenant under a ground lease rather than that of a
fee owner, and/or (iii) any management company retained by Landlord to manage
the Demised Premises.
21.7. Landlord and Tenant each hereby waive any and all rights of recovery
against the other or against the officers, directors, employees, agents, and
representatives of the other, on account of loss or damage occasioned to such
waiving party or its property or the property of others under its control to
the extent that such loss or damage is insured against under any fire and
extended coverage insurance policy which either may have in force at the time
of such loss or damage. Such waivers shall continue as long as their respective
insurers so permit. Any termination of such a waiver shall be by written notice
of circumstances as hereinafter set forth. Landlord and Tenant upon obtaining
the policies of insurance required or permitted under this Lease shall give
notice to the insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease. If such policies shall not be
obtainable with such waiver or shall be so obtainable only at a premium over
that chargeable without such waiver, the party seeking such policy shall notify
the other thereof, and the latter shall have ten (10) days thereafter to either
(i) procure such insurance with companies reasonably satisfactory to the other
party or (ii) agree to pay such additional premium (in the Tenant's case, in
the proportion which the area of the Demised Premises bears to the insured
area). If neither (i) nor (ii) are done, this Section 21.7 shall have no effect
during such time as such policies shall not be obtainable or the party in whose
favor a waiver of subrogation is desired refuses to pay the additional premium.
If such policies shall at any time be unobtainable, but shall be subsequently
obtainable, neither party shall be subsequently liable for a failure to obtain
such insurance until a reasonable time after notification thereof by the other
party. If the release of either Landlord or Tenant, as set forth in the first
sentence of this Section 21.7 shall contravene any law with respect to
exculpatory agreements, the liability of the party in question shall be deemed
not released but shall be secondary to the other's insurer.
21.8. Landlord may require insurance policy limits to be raised to conform
with the prudent practice at such time for comparable properties reasonably
proximate to the Building in the same city or geographic area.
22. Damage or Destruction
22.1. In the event of a partial destruction of the Building by fire or
other perils covered by extended coverage insurance, not exceeding twenty-five
percent (25%) of the full insurable value thereof, and if the damage thereto is
such that the Building may be repaired, reconstructed or restored within a
period of six (6) months from the date of the happening of such casualty and
Landlord will receive insurance proceeds sufficient to cover the cost of such
repairs (except for any deductible amount provided by Landlord's policy, which
deductible amount if paid by Landlord shall be an Operating Expense), Landlord
shall commence and proceed diligently with the work of repair, reconstruction
and restoration and this Lease shall continue in full force and effect.
22.2. In the event of any damage to or destruction of the Building, other
than as provided in Section 22.1, Landlord may elect to repair, reconstruct and
restore the Building in which case this
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Lease shall continue in full force and effect. If Landlord elects not to repair
then this Lease shall terminate as of date of destruction.
22.3. Landlord shall give written notice to Tenant of its election not to
repair, reconstruct or restore the Building or Common Areas within the sixty
(60) day period following the date of damage or destruction.
22.4. Upon any termination of this Lease under any of the provisions of
this Article, the parties shall be released thereby without further obligation
to the other from the date possession of the Demised Premises is surrendered to
the Landlord except for items which have theretofore occurred.
22.5. In the event of repair, reconstruction and restoration as herein
provided, the rental provided to be paid under this Lease shall be abated
proportionately based on the extent to which Tenant's use of the Demised
Premises is impaired during the period of such repair, reconstruction or
restoration, unless Landlord provides Tenant with other space during the period
of repair, which in Tenant's reasonable opinion is suitable for the temporary
conduct of Tenant's business.
22.6. Notwithstanding anything to the contrary contained in this Article,
should Landlord be delayed or prevented from completing the repair or
restoration of the damage to the Demised Premises after the occurrence of such
damage or destruction by reason of acts of God or war, governmental
restrictions, inability to procure the necessary labor or materials, strikes,
or other uses beyond the control of Landlord, the time for Landlord to commence
or complete repairs shall be extended, provided, at the election of Landlord,
Landlord shall be relieved of its obligation to make such repairs or
restoration and Tenant shall be released from its obligation under this Lease
as of the end of eight (8) months from date of destruction, if repairs required
to provide Tenant use of the Demised Premises are not then substantially
complete.
22.7. Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Demised Premises when the damage resulting from any casualty
covered under this Article occurs during the last twenty-four (24) months of
the Term, or to the extent that insurance proceeds are not available therefor.
23. EMINENT DOMAIN
23.1. In the event the whole of the Demised Premises, or such part thereof
as shall substantially interfere with the Tenant's use and occupancy thereof,
shall be taken for any public or quasi-public purpose by any lawful power or
authority by exercise of the right of appropriation, condemnation or eminent
domain, or sold to prevent such taking, Tenant or Landlord may terminate this
Lease effective as of the date possession is required to be surrendered to said
authority.
23.2. In the event of a partial taking of the Building, the Common Areas or
of drives, walkways, and parking areas serving the Building or the Project for
any public or quasi-public
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purpose by any lawful power of or authority by exercise of right of
appropriation, condemnation, or eminent domain, or sold to prevent such taking
then without regard as to whether any portion of the Demised Premises occupied
by Tenant was so taken. Tenant may elect to terminate this Lease as of such
taking if such taking is, in the reasonable opinion of Tenant, of a material
nature such as to make it uneconomical to continue use of the unappropriated
portion for purposes of office rentals or laboratory space.
23.3. Tenant shall be entitled to any award which is specifically awarded
as compensation for the taking of Tenant's Property and for costs of Tenant
moving to a new location. Except as before set forth, any award for such taking
shall belong to Landlord.
23.4. If upon any taking of the nature described in this Article 23 this
Lease continues in effect, the Landlord shall promptly proceed to restore the
Demised Premises to substantially its same condition prior to such partial
taking. The Rent shall be abated proportionately based upon the extent to which
Tenant's use of the Demised Premises has decreased on the basis of the
percentage of the rental value of the Demised Premises after such taking and the
rental value of the Demised Premises prior to such taking.
24. Defaults and Remedies
24.1. Late payment by Tenant to Landlord of Rent and other sums due will
cause Landlord to incur costs not contemplated by this Lease, the exact amount
of which will be extremely difficult and impracticable to ascertain. Such costs
include, but are not limited to, processing and accounting charges and late
charges which may be imposed on Landlord by the terms of any mortgage or trust
deed covering the Demised Premises. Therefore, if any installment of Rent due
from Tenant is not received by Landlord within ten (10) days after the date such
payment is due, Tenant shall pay to Landlord an additional sum of five percent
(5%) of the overdue Rent as a late charge. The parties agree that this late
charge represents a fair and reasonable estimate of the costs that Landlord will
incur by reason of late payment by Tenant. In addition to the late charge, Rent
not paid when due shall bear interest from the 10th day after date due until
paid at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum
rate permitted by law.
24.2. No payment by Tenant or receipt by Landlord of a lesser amount than
the Rent payment herein stipulated shall be deemed to be other than on account
of the Rent, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as Rent be deemed an accord and satisfaction,
and Landlord may accept such check or payment without prejudice to Landlord's
right to recover the balance of such Rent or pursue any other remedy provided.
If at any time a dispute shall arise as to any amount or sum of money to be paid
by Tenant to Landlord, Tenant shall have the right to make payment "under
protest" and such payment shall not be regarded as a voluntary payment, and
there shall survive the right on the part of Tenant to institute suit for
recovery of the payment paid under protest.
24.3. If Tenant fails to pay any sum of money (other than Basic Annual
Rent) required to
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be paid by it hereunder, or shall fail to perform any other act on its part to
be performed hereunder, Landlord may, with prior notice to Tenant, without
waiving or releasing Tenant from any obligations of Tenant, but shall not be
obligated to make such payment or perform such act. All sums so paid or incurred
by Landlord, together with interest thereon, from the date such sums were paid
or incurred, at the annual rate equal to twelve percent (12%) per annum or
highest rate permitted by law, whichever is less ("Default Rate"), shall be
payable to Landlord on demand as Additional Rent.
24.4. The occurrence of any one or more of the following events shall
constitute a "Default" hereunder by Tenant:
24.4.1 The abandonment or vacation of the Demised Premises by Tenant
prior to expiration or termination of the Lease;
24.4.2 The failure by Tenant to make any payment of Rent within five (5)
days of written notice from Landlord (provided such notice need only be given
twice in any calendar year);
24.4.3 The failure by Tenant to observe or perform any obligation or
covenant contained herein (other than described in Section 24.4.1 and 24.4.2) to
be performed by Tenant, where such failure shall continue for a period of thirty
(30) days after written notice thereof from Landlord to Tenant. Such notice
shall be in lieu of, and not in addition to, any notice required under
Pennsylvania law, provided that if the nature of Tenant's default is such that
it reasonably requires more than thirty (30) days to cure, then Tenant shall not
be deemed to be in default if Tenant shall commence such cure within said thirty
(30) day period and thereafter diligently prosecute the same to completion,
provided, however, that such cure is completed no later than ninety (90) days
from the date of written notice;
24.4.4 Tenant makes an assignment for the benefit of creditors;
24.4.5 A receiver, trustee or custodian is appointed to, or does, take
title possession or control of all, or substantially all, of Tenant's assets;
24.4.6 Tenant files a voluntary petition under the Bankruptcy Code (or
any similar law) or an order for relief is entered against Tenant pursuant to a
voluntary or involuntary proceeding commenced under any chapter of the
Bankruptcy Code;
24.4.7 Any involuntary petition is filed against the Tenant under any
chapter of the Bankruptcy Code and is not dismissed within ninety (90) days; or
24.4.8 Tenant's interest in this Lease is attached, executed upon, or
otherwise judicially seized and such action is not released within ninety (90)
days of the action.
Notices given under this Section 24.4 shall specify the alleged default and
shall demand that Tenant perform the provisions of this Lease or pay the Rent
that is in arrears, as the case may be, within the
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applicable period of time, or quit the Demised Premises. No such notice shall be
deemed a forfeiture or a termination of this Lease unless Landlord elects
otherwise in such notice.
24.5. In the event of a Default by Tenant, and at any time thereafter
prior to cure, with additional notice and without limiting Landlord in the
exercise of any right or remedy which Landlord may have, Landlord shall be
entitled to terminate Tenant's right to possession of the Demised Premises by
any lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Demised Premises to Landlord. In such
event, Landlord shall have the immediate right to re-enter and remove all
persons and property, and such property may be removed and stored in a public
warehouse or elsewhere at the cost of, and for the account of Tenant, all
without resort to legal process and without being deemed guilty of trespass, or
becoming liable for any loss or damage which may be occasioned thereby provided
that Landlord shall act in a commercially reasonable manner. In the event that
Landlord shall elect to so terminate this Lease, then Landlord shall be
entitled to recover from Tenant all damages incurred by Landlord by reason of
Tenant's default, including:
24.5.1 The worth at the time of award of any unpaid Rent which had been
earned at the time of such termination; plus
24.5.2 The worth at the time of award of the amount by which the unpaid
Rent which would have been earned after termination until the time of award
exceeds that portion of such rental loss which Tenant proves could have been
reasonably avoided; plus
24.5.3 The worth at the time of award of the amount by which the unpaid
Rent for the balance of the term after the time of award exceeds the amount of
such rental loss which Tenant proves could have been reasonably avoided; plus
24.5.4 Any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligation
under this Lease or which in the ordinary course of things would be likely to
result therefrom, including, but not limited to, the cost of restoring the
Demised Premises to the condition required under the terms of this Lease; plus
24.5.5 At the Landlord's election, such other amounts in addition to or
in lieu of the foregoing as may be permitted from time to time by applicable
law.
As used in Sections 24.5.1 and 24.5.2 above, "worth at the time of award" shall
be computed by allowing interest at the rate specified in Section 24.1. As used
in Section 24.5.3 above, the "worth at the time of the award" shall be computed
by taking the present value of such amount, by using the discount rate of the
Federal Reserve Bank of San Francisco at the time of the award plus six (6)
percentage points.
24.6. If Landlord does not elect to terminate this Lease as provided in
this Section, then Landlord may, from time to time, recover all Rent as it
becomes due under this Lease. At any time
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thereafter and prior to cure, Landlord may elect to terminate this Lease and to
recover damage to which Landlord is entitled.
24.7. In the event Landlord elects to terminate this Lease and relet the
Demised Premises, it may execute any new lease in its own name. Tenant hereunder
shall have no right or authority whatsoever to collect any Rent from such
tenant. The proceeds of any such reletting shall be applied as follows:
First, to the payment of any indebtedness other than Rent due hereunder
from Tenant to Landlord, including, but not limited to, storage charges or
brokerage commissions owing from Tenant to Landlord as the result of such
reletting;
Second, to the payment of the costs and expenses of reletting the Demised
Premises, including alterations and repairs which Landlord deems reasonably
necessary and advisable and reasonable attorneys' fees, charges and
disbursements incurred by Landlord in connection with the retaking of the
Demised Premises and such reletting;
Third, to the payment of Rent and other charges due and unpaid hereunder;
and
Fourth, to the payment of future Rent and other damages payable by Tenant
under this Lease.
24.8. All rights, options, and remedies of Landlord contained in this Lease
shall be construed and held to be nonexclusive and cumulative. Landlord shall
have the right to pursue any one or all of such rights, options and remedies or
any other remedy or relief which may be provided by law, whether or not stated
in this Lease. No waiver of any default of Tenant hereunder shall be implied
from any acceptance by Landlord of any Rent or other payments due hereunder or
any omission by Landlord to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect defaults
other than as specified in said waiver.
24.9. Tenant expressly waives (i) all rights under the Landlord and Tenant
Act of 1951, and all supplements and amendments thereto, and (ii) the right to
three (3) months or fifteen (15) or thirty (30) days' notice required under
certain circumstances by the Landlord and Tenant Act of 1951. Tenant hereby
agreeing that the respective notice periods provided for in this Lease shall be
sufficient in either or any such case.
24.9.1 When this Lease and the Term or any extension or renewal thereof
shall have expired, or terminated on account of any uncured Default on the part
of Tenant hereunder, or upon a Default, it shall be lawful for any attorney of
any court of record to appear as attorney for Tenant as well as for all persons
claiming by, through or under Tenant (and Tenant hereby appoints Landlord as the
attorney-in-fact of Tenant, coupled with an interest in Tenant's name, place
and stead as if signed and delivered by Tenant), and in any action or proceeding
in any court of competent jurisdiction to confess judgment in ejectment (and
otherwise enter judgment for possession of the
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Demised Premises) against Tenant and against all persons claiming by, through
or under Tenant, for the recovery by Landlord of possession of the Demised
Premises, for which this Lease and the appointments herein shall be sufficient
warrant; thereupon, if Landlord so desires, an appropriate writ of possession
may issue forthwith, without any prior writ or proceeding whatsoever, and
provided that if for any reason after such action shall have been commenced it
shall be determined that possession of the Demised Premises should remain in or
be restored to Tenant, Landlord shall have the right for the same default and
upon any subsequent default or defaults, or upon the termination of this Lease
or of Tenant's right of possession as hereinbefore set forth, to bring one or
more further action or actions as hereinbefore set forth to recover possession
of the Demised Premises and to confess judgment (and otherwise agree on behalf
of Tenant to the entry of judgment) for the recovery of possession of the
Demised Premises by Landlord as hereinbefore provided. The foregoing warrant
shall not be exhausted any one exercise thereof but shall be exercisable from
time to time and as often as there is any one or more uncured Defaults or
whenever this Lease and the Term or any extension or renewal thereof shall have
expired, or terminated on account of any uncured Default by Tenant hereunder.
24.9.2 In any action, a true copy of this Lease (and of the truth
of the copy such affidavit or verified complaint shall be sufficient evidence)
shall be sufficient warrant, and it shall not be necessary to file the original
as a warrant of attorney, any rule of court, custom or practice to the contrary
notwithstanding.
24.9.3 TENANT ACKNOWLEDGES AND AGREES THAT THIS LEASE CONTAINS
PROVISIONS UNDER WHICH LANDLORD MAY ENTER JUDGMENT BY CONFESSION AGAINST TENANT.
BEING FULLY AWARE OF TENANT'S RIGHTS TO PRIOR NOTICE AND A HEARING ON THE
VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT MAY BE ASSERTED AGAINST HIM/HER
BY LANDLORD HEREUNDER BEFORE JUDGMENT IS ENTERED, TENANT HEREBY FREELY,
KNOWINGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND
CONSENTS TO LANDLORD'S ENTERING JUDGMENT AGAINST TENANT BY CONFESSION PURSUANT
TO THE TERMS OF THIS LEASE.
TENANT'S INITIALS: _______________________
24.10. In addition to any and all other rights or remedies of Landlord
in this Lease or by law or in equity provided, and at Landlord's sole election,
Landlord shall have the right, upon the occurrence of an uncured Default to
accelerate any and all Rent, Additional Rent and other sums payable by Tenant
hereunder to become due for the balance of the term of this Lease, whereupon
the same shall be immediately due and payable in full, and Landlord may
thereupon bring suit for the collection of Rent (including Rent in arrears and
to accelerate any and all Rent to become due for the balance of the Term of
this Lease) and for all other damages.
24.11. Whenever liquidated damages are specified anywhere in this
Lease, it is understood and agreed that said sum is to be paid to Landlord
because Landlord's actual damages will be
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difficult or impossible to ascertain with accuracy. The obligation of
Tenant set forth herein to pay Landlord's attorneys' fees in connection with
Tenant's default shall include the obligation of Tenant to pay all reasonable
attorneys' fees incurred by Landlord before, during and after trial and on
appeal. The parties further agree that any attorneys' fees incurred in
enforcing any judgment are recoverable as a separate item, and that this
provision is intended to be severable from the other provisions of this Lease,
shall survive the judgment, and is not to be deemed merged into the judgment.
24.12. Termination of this Lease or Tenant's right to possession by
Landlord shall not relieve Tenant from any liability to Landlord which has
theretofore accrued or shall arise based upon events which occurred prior to the
last to occur of (i) the date of Lease termination or (ii) the date possession
of Demised Premises is surrendered.
24.13. Landlord shall not be in default unless Landlord fails to perform
obligations required of Landlord within a reasonable time, but in no event shall
such failure to continue be for more than thirty (30) days after written notice
by Tenant specifying wherein Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord's obligation is such that more
than thirty (30) days are required for performance, then Landlord shall not be
in default if Landlord commences performance within such thirty (30) day period
and thereafter diligently prosecutes the same to completion.
24.14. In the event of any default on the part of Landlord, Tenant will
give notice by registered or certified mail to any beneficiary of a deed of
trust or mortgagee of a mortgage covering the Demised Premises and to any
landlord of any lease of any building in which Demised Premises is located whose
address shall have been furnished, and Tenant shall offer such beneficiary,
mortgagee and/or landlord a reasonable opportunity to cure the default,
including time to obtain possession of the Building by power of sale or a
judicial action if such should prove necessary to effect a cure, provided that
Landlord shall have furnished to Tenant in writing the names and addresses of
all such persons who are to receive such notices.
25. Assignment or Subletting
25.1. Except as hereinafter provided, Tenant shall not, either
voluntarily or by operation of law, directly or indirectly, sell, hypothecate,
assign, pledge, encumber or otherwise transfer this Lease, or sublet the Demised
Premises or any part thereof, or permit or suffer the Demised Premises or any
part thereof to be used or occupied as work space, storage space, mailing
privileges, concession or otherwise by anyone other than Tenant or Tenant's
employees, without the prior written consent of Landlord in each instance, which
consent shall not be unreasonably withheld.
25.2. If Tenant is a corporation, the shares of which are not actively
traded upon a stock exchange or in the over-the-counter market, a transfer or
series of transfers within any six (6) month period whereby thirty-five percent
(35%) or more of the issued and outstanding shares of such corporation are, or
the voting control is, transferred (but excepting transfers upon deaths of
individual shareholders) from a person or persons or entity or entities which
were owners thereof at
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time of execution of this Lease to persons or entities who were not owners of
shares of the corporation at time of execution of this Lease shall be deemed an
assignment of this Lease requiring the consent of Landlord as provided in
Section 25.1 above.
25.3. If Tenant desires to assign this Lease to any entity into which
Tenant is merged, with which Tenant is consolidated, or which acquires all or
substantially all of the assets of Tenant, provided that the assignee first
executes, acknowledges and delivers to Landlord an agreement whereby the
assignee agrees to be bound by all of the covenants and agreements in this
Lease and that the assignee shall have a net worth (determined in accordance
with generally accepted accounting principles consistently applied) immediately
after such assignment which is at least equal to the net worth (as so
determined) of Tenant immediately prior to the assignment (or as of the date
hereof, if greater), then Landlord, upon receipt of proof of foregoing shall
consent to such assignment.
25.4. In the event Tenant desires to assign, sublease, hypothecate or
otherwise transfer this Lease or sublet the Demised Premises, then at least
forty-five (45) days, but not more than ninety (90) days, prior to the date
when Tenant desires the assignment or sublease to be effective (the "Assignment
Date"), Tenant shall give Landlord a notice (the "Assignment Notice")
containing information (including references) concerning the character of the
proposed assignee or sublessee, the Assignment Date, any ownership or
commercial relationship between Tenant and the proposed assignee or sublessee,
and the consideration and all other material terms and conditions of the
proposed assignment or sublease along with such other information as Landlord
may reasonably require, all in such detail as Landlord shall reasonably
require. Tenant shall also tender to Landlord, reasonable attorneys fees and
other costs or overhead expenses incurred by Landlord in reviewing Tenants
request for such assignment. Notwithstanding the foregoing, if Tenant desires
to sublet 15,000 square feet of the Demised Premises or less, the forty-five
(45) day notice requirement herein shall be reduced to twenty-one (21) days.
25.5. Landlord in making its determination as to whether consent should be
given to a proposed assignment or sublease, may give consideration to the
financial strength of such successor (notwithstanding the assignor remaining
liable for Tenant's performance) and any change in use which such successor
proposes to make in use of Demised Premises. In no event shall Landlord be
deemed to be unreasonable for declining to consent to transfer to a successor
of poor reputation, lacking financial qualifications, or seeking change in use.
25.6. As conditions precedent to Landlord considering a request by Tenant
to Tenant's transfer of rights or subletting of the Demised Premises, Landlord
may require any or all of the following:
25.6.1 Tenant shall remain fully liable under this Lease during the
unexpired Term;
25.6.2 Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord that the value of Landlord's interest under this Lease
will not thereby be diminished or
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reduced. Such evidence shall include, but need not be limited to, evidence
respecting the relevant business experience and financial responsibility and
status of the third party concerned;
25.6.3 Tenant shall reimburse Landlord for Landlord's actual costs
and expenses, including, without limitation, reasonable attorneys' fees,
charges and disbursements incurred in connection with the review, processing
and documentation of such request;
25.6.4 Written agreement from any third party concerned that in the
event Landlord gives such third party notice that Tenant is in default under
this Lease, such third party shall thereafter make all payments otherwise due
Tenant directly to Landlord, which payments will be received by Landlord
without any liability on Landlord except to credit such payment against those
due under the Lease, and any such third party shall agree to attorn to Landlord
or its successors and assigns should this Lease be terminated for any reason;
provided, however, that in no event shall Landlord or its successors or assigns
be obligated to accept such attornment;
25.6.5 Any such transfer and consent shall be effected on forms
reasonably approved by Landlord as to form and substance
25.6.6 Tenant shall not then be in default hereunder in any respect;
25.6.7 Such third party's proposed use of the Demised Premises shall
be the same as Tenant's permitted use;
25.6.8 Landlord shall not be bound by any provision of any agreement
pertaining to Tenant's transfer of rights or subletting of the Demised Premises;
25.6.9 Any agreement pertaining to Tenant's transfer of this Lease
or subletting of any portion of the Demised Premises shall be in a form
acceptable to Landlord in Landlord's sole and absolute discretion, and any such
agreement shall not be modified or amended without Landlord's prior written
consent, which may be withheld in Landlord's sole and absolute discretion;
25.6.10 Tenant shall deliver to Landlord one original executed copy
of any and all written instruments evidencing or relating to Tenant's transfer
of rights or subletting of the Demised Premises; and
25.6.11 A list of Hazardous Materials, certified by the proposed
sublessee to be true and correct, which the proposed sublessee intends to use
or store in the Demised Premises. Additionally, Tenant shall deliver to
Landlord, on or before the date any proposed sublessee takes occupancy of the
Demised Premises, all of the items relating to Hazardous Materials of such
proposed sublessee as described in Article 39 below.
25.7. Any sale, assignment, hypothecation or transfer of this Lease
or subletting of the Demised Premises that is not in compliance with the
provisions of this Article 25 shall be void and
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shall, at the option of Landlord, terminate this Lease.
25.8. The consent by Landlord to an assignment or subletting shall not
relieve Tenant or any assignees of this Lease or sublessee of the Demised
Premises from obtaining the consent of Landlord to any further assignment or
subletting nor shall it release Tenant or any assignee or sublessee of Tenant
from full and primary liability under the Lease.
25.9. Notwithstanding any subletting or assignment, Tenant shall remain
fully and primarily liable for the payment of all Rent and other sums due, or
to become due hereunder, and for the full performance of all other terms,
conditions, and covenants to be kept and performed by Tenant. The acceptance of
Rent or any other sum due hereunder, or the acceptance of performance of any
other term, covenant, or condition thereof, from any other person or entity
shall not be deemed to be a waiver of any of the provisions of this Lease or a
consent to any subletting assignment or other transfer of the Demised Premises.
25.10. If Tenant shall sublet the Demised Premises or any part, Tenant
hereby immediately and irrevocably assigns to Landlord, as security for
Tenant's obligations under this Lease, all rent from any subletting of all or a
part of the Demised Premises and Landlord as assignee and as attorney-in-fact
for Tenant, or a receiver for Tenant appointed on Landlord's application, may
collect such rent and apply it toward Tenant's obligations under this Lease,
except that, until the occurrence of an act of Default by Tenant, Tenant shall
have the right to collect such rent.
26. ATTORNEYS' FEES AND COSTS
26.1. Tenant shall be responsible for all of Tenant's legal and related
costs and fees in connection with this Lease.
26.2. If either party commences an action against the other party arising
out of or in connection with this Lease, the prevailing party shall be entitled
to have and recover from the non-prevailing party reasonable attorneys fees,
charges and disbursements and costs of suit.
27. BANKRUPTCY
27.1. In the event a debtor, trustee, or debtor in possession under the
Bankruptcy Code, or other person with similar rights, duties and powers under
any other law, proposes to cure or under Section 24.4.4 or Section 24.4.5
prevent any default under this Lease or to assume or assign this Lease, and is
obliged to provide adequate assurance to Landlord that (i) a default will be
cured, (ii) Landlord will be compensated for its damages arising from any
breach of this Lease, or (iii) future performance under this Lease will occur,
then adequate assurance shall include any or all of the following, as
designated by Landlord.
27.1.1 Those acts specified in the Bankruptcy Code or other law as
included within the meaning of adequate assurance, even if this Lease does not
concern a shopping center or other
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facility described in such laws;
27.1.2 A prompt cash payment to compensate Landlord for any monetary
defaults or actual damages arising directly from a breach of this Lease;
27.1.3 A cash deposit in an amount at least equal to the Security Deposit
as referenced in Section 2.1.8.
27.1.4 The assumption or assignment of all of Tenant's interest and
obligations under this Lease.
28. Estoppel Certificate
Tenant shall within ten (10) days of written notice from Landlord, execute,
acknowledge and deliver a statement in writing substantially in the form
attached to this Lease as Exhibit "D" with the blanks filled in, and on any
other form reasonably requested by a proposed lender or purchaser, (i)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification and certifying that this Lease
as so modified is in full force and effect) and the dates to which the rental
and other charges are paid in advanced, if any, (ii) acknowledging that there
are not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed and (iii) setting
forth such further information with respect to this Lease or the Demised
Premises as may be requested thereon. Any such statement may be relied upon by
any prospective purchaser or encumbrancer of all or any portion of the real
property of which the Demised Premises are a part. Tenant's failure to deliver
such statement within such time shall, at the option of Landlord, constitute a
Default under this Lease, and, in any event, shall be conclusive upon Tenant
that the Lease is in full force and effect and without modification except as
may be represented by Landlord in any certificate prepared by Landlord and
delivered to Tenant for execution.
29. Joint and Several Obligations
29.1. If more than one person or entity executes this Lease as Tenant,
29.1.1 Each of them is jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions, provisions
and agreements of this Lease to be kept, observed and performed by Tenant, and
29.1.2 The term "Tenant" as used in this Lease shall mean and include
each of them jointly and severally. The act of, notice from, notice to, refund
to, or the signature of, any one or more of them, with respect to the tenancy of
this Lease, including, but not limited to, any renewal, extension, expiration,
termination or modification of this Lease, shall be binding upon each and all of
the persons executing this Lease as Tenant with the same force and effect as if
each and all of them had so acted, so given or received such notice or refund or
so signed.
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30. Definition of Landlord; Limitation of Landlord's Liability
30.1. The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only Landlord or the successor-in-interest of Landlord under this Lease
at the time in question. In the event of any transfer, assignment or the
conveyance of Landlord's fee title or leasehold interest, the landlord herein
named (and in case of any subsequent transfers or conveyances, the then grantor)
shall be automatically freed and relieved from, and after the date of such
transfer, assignment or conveyance, of all liability for the performance of any
covenants or obligations contained in this Lease thereafter to be performed by
Landlord and, without further agreement, the transferee of such title or
leasehold shall be deemed to have assumed and agreed to observe and perform any
and all obligations of Landlord hereunder during its ownership or ground lease
of the Demised Premises. Landlord may transfer its interest in the Demised
Premises or this Lease without the consent of Tenant and such transfer or
subsequent transfer shall not be deemed a violation on the part of Landlord or
the then grantor of any of the terms or conditions of this Lease.
30.2. If Landlord is in default of this Lease, and as a consequence, Tenant
recovers a money judgment against Landlord, the judgment shall be satisfied only
out of the proceeds of sale received on execution of the judgment and levy
against the right, title and interest of Landlord in the Building and Project,
and out of rent or other income from such real property receivable by Landlord
or out of the consideration received by Landlord from the sale, financing,
refinancing, or other disposition of all or any part of Landlord's right, title,
and interest in the Building and Project.
30.3. Landlord shall not be personally liable for any deficiency. If
Landlord is a partnership or joint venture, the partners of such partnership
shall not be personally liable and no partner of Landlord shall be sued or named
as a party in any suit or action or service of process be made against any
partner of Landlord except as may be necessary to secure jurisdiction of the
partnership or joint venture. If Landlord is a corporation, the shareholders,
directors, officers, employees, and/or agents of such corporation shall not be
personally liable and no shareholder, director, officer, employee or agent of
Landlord shall be sued or named as a party in any suit or action or service of
process made against any shareholder, director, officer, employee or agent of
Landlord. No partner, shareholder, director, employee, or agent of Landlord
shall be required to answer or otherwise plead to any service of process and no
judgment will be taken or writ of execution levied against any partner,
shareholder, director, employee or agent of Landlord.
30.4. Each of the covenants and agreements of this Article 30 shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or by common law and shall survive the termination of this
Lease.
31. Project Control by Landlord
31.1. Landlord reserves full control over the Building and the Common Areas
to the extent not inconsistent with Tenant's enjoyment of the Demised Premises.
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31.2. Landlord may, at any and all reasonable times during non-business
hours (or during business hours if Tenant so requests), and upon reasonable
advance notice (provided that no time restrictions shall apply or advance notice
need be given if an emergency necessitates an immediate entry), enter the
Demised Premises to (a) inspect the same and to determine whether Tenant is in
compliance with its obligations hereunder, (b) supply any service Landlord is
required to provide hereunder, (c) show the Demised Premises to prospective
lenders, insurers, investors, purchasers or, during the last year of the Term,
tenants, (d) post notices of nonresponsibility, and (e) access the structural
portion of the Demised Premises required to be maintained by Landlord. In
connection with any such alteration, improvement or repair, Landlord may erect
in the Demised Premises or the Common Areas scaffolding and other structures
reasonably required for the work to be performed. In no event shall Tenant's
Rent xxxxx as a result of any such entry or work; provided, however, that all
such work shall be done in such a manner as to cause as little interference to
Tenant as reasonably possible. Landlord shall at all times retain a key with
which to unlock all of the doors in the Demised Premises. If an emergency
necessitates immediate access to the Demised Premises, Landlord may use whatever
force is necessary to enter the Demised Premises and any such entry to the
Demised Premises shall not constitute a forcible or unlawful entry to the
Demised Premises, an unlawful detainer of the Demised Premises, or an eviction
of Tenant from the Demised Premises, or any portion thereof.
32. Quiet Enjoyment
So long as Tenant is not in Default, Landlord covenants that Landlord or
anyone acting through or under Landlord will not disturb Tenant's occupancy of
the Demised Premises except as permitted by the provisions of this Lease.
33. Quitclaim Deed
Tenant shall execute and deliver to Landlord on the expiration or earlier
termination of this Lease, immediately on Landlord's request, in recordable
form, a quitclaim deed to the Demised Premises or such other documentation
reasonably requested by Landlord evidencing termination of this Lease.
34. Intentionally Deleted
35. Subordination and Attornment
35.1. This Lease shall be subject and subordinate to the lien of any
mortgage, deed of trust, or lease in which Landlord is tenant now or hereafter
in force against the Common Areas or the Building and to all advances made or
hereafter to be made upon the security thereof without the necessity of the
execution and delivery of any further instruments on the part of Tenant to
effectuate such subordination provided that Tenant receives a non-disturbance
agreement from any such mortgagee, beneficiary or landlord on such party's
standard form.
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35.2. Notwithstanding the foregoing, Tenant shall execute and deliver upon
demand such further instrument or instruments evidencing such subordination of
this Lease to the lien of any such mortgage or mortgages or deeds of trust or
lease in which Landlord is tenant as may be required by Landlord. However, if
any such mortgagee, beneficiary or Landlord under lease wherein Landlord is
tenant so elects, this Lease shall be deemed prior in lien to any such lease,
mortgage, or deed of trust upon or including the Demised Premises regardless
of date and Tenant will execute a statement in writing to such effect at
Landlord's request. If Tenant fails to execute any document required from
Tenant under this Section within ten (10) days after written request therefor,
Tenant hereby constitutes and appoints Landlord or its special attorney-in-fact
to execute and deliver any such document or documents in the name of Tenant.
Such power is coupled with an interest and is irrevocable.
35.3. In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the Demised Premises, the Tenant shall at the
election of the purchaser at such foreclosure or sale attorn to the purchaser
upon any such foreclosure or sale and recognize such purchaser as the Landlord
under this Lease.
36. Surrender
36.1. No surrender of possession of any part of the Demised Premises shall
release Tenant from any of its obligations hereunder unless accepted by
Landlord.
36.2. The voluntary or other surrender of this Lease by Tenant shall not
work a merger, unless Landlord consents and shall, at the option of Landlord,
operate as an assignment to it of any or all subleases or subtenancies.
36.3. The voluntary or other surrender of any ground or underlying lease
that now exists or may hereafter be executed affecting the Building or the
Common Areas, or a mutual cancellation, thereof, or of Landlord's interest
therein, shall not work a merger and shall, at the option of the successor of
Landlord's interest in the Building or Common Areas, operate as an assignment
of this Lease.
36.4. Upon the expiration or earlier termination of this Lease, Tenant
shall surrender the Demised Premises to Landlord broom clean and free of
debris; with all of Tenant's personal property and effects removed therefrom,
with all alterations, improvements and fixtures required by Landlord to be
removed from the Demised Premises in accordance with Section 17.6 hereof
actually removed and all damage as a result of or caused by such removal
repaired; and with all licenses, permits and similar items which restrict or
affect the used of the Demised Premises released and fully terminated.
37. Waiver and Modification
No provision of this Lease may be modified, amended or added to except by
an agreement
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in writing. The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained.
38. Waiver of Jury Trial and Counterclaims
THE PARTIES HERETO SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S
USE OR OCCUPANCY OF THE DEMISED PREMISES, AND OR ANY CLAIM OF INJURY OR DAMAGE.
39. Hazardous Materials
39.1. Prohibition/Compliance. Tenant shall not cause or permit any
Hazardous Materials (as hereinafter defined) to be brought upon, kept or used in
or about the Building or Common Areas in violation of applicable law by Tenant,
its agents, employees, contractors or invitees. If Tenant breaches the
obligation stated in the preceding sentence, or if the presence of Hazardous
Materials results in contamination of the Building, the Common Areas or any
adjacent property or if contamination of the Building, the Common Areas or any
adjacent property by Hazardous Materials otherwise occurs during the term of
this Lease or any extension or renewal hereof or holding over hereunder other
than due to the affirmative act of ARE-702 Electronic Drive, L.P., Tenant hereby
indemnifies and shall defend and hold Landlord, its officers, directors,
employees, agents and contractors harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities, or losses (including, without
limitation, diminution in value of the Demised Premises or any portion of the
Building or the Common Areas, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Demised Premises, the damages
arising from any adverse impact on marketing of space in the Demised Premises,
the Building or the Common Areas, and sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the Lease term as a result of such contamination. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Materials present in the air, soil or
ground water above on or under the Demised Premises. Without limiting the
foregoing, if the presence of any Hazardous Materials on the Building, the
Common Areas or any adjacent property, caused or permitted by Tenant results in
any contamination of the Building, the Common Areas or any adjacent property,
Tenant shall promptly take all actions at its sole expense as are necessary to
return the Building, the Common Areas or any adjacent property, to the condition
existing prior to the time of such contamination, provided that Landlord's
approval of such action shall first be obtained, which approval shall not
unreasonably be withheld so long as such actions would not potentially have any
material adverse long-term or short-term effect on the Building or the Common
Areas.
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39.2. Business. Landlord acknowledges that it is not the intent of this
Article 39 to prohibit Tenant from operating its business as described in
Section 2.1.9 above. Tenant may operate its business according to the custom of
the industry so long as the use or presence of Hazardous Materials is strictly
and properly monitored according to all applicable governmental requirements.
As a material inducement to Landlord to allow Tenant to use Hazardous Materials
in connection with its business, Tenant agrees to deliver to Landlord prior
to the Term Commencement Date a list identifying each type of Hazardous
Materials to be present on the Demised Premises and setting forth any and all
governmental approvals or permits required in connection with the presence of
such Hazardous Materials on the Demised Premises ("Hazardous Materials List").
Tenant shall deliver to Landlord an updated Hazardous Materials List at least
once a year and shall also deliver an updated list before any new Hazardous
Materials is brought onto the Demised Premises. Tenant shall deliver to
Landlord true and correct copies of the following documents (the "Documents")
relating to the handling, storage, disposal and emission of Hazardous Materials
prior to the Term Commencement Date, or if unavailable at that time, concurrent
with the receipt from or submission to a governmental agency: permits;
approvals; reports and correspondence; written storage and management plans;
notice of violations of any laws; plans relating to the installation of any
storage tanks to be installed in or under Building or Common Areas (provided,
said installation of tanks shall only be permitted after Landlord has given
Tenant its written consent to do so, which consent may be withheld in Landlord's
sole and absolute discretion), and all closure plans or any other documents
required by any and all federal, state and local governmental agencies and
authorities for any storage tanks installed in, on or under the Building or the
Common Areas for the closure of any such tanks. Tenant is not required, however,
to provide Landlord with any portion(s) of the Documents containing information
of a proprietary nature which, in and of themselves, do not contain a reference
to any Hazardous Materials or hazardous activities. It is not the intent of
this Section to provide Landlord with information which could be detrimental to
Tenant's business should such information become possessed by Tenant's
competitors. At the written request of Landlord, Tenant agrees that it shall
enter into a written agreement with other tenant's at the Building (if any)
concerning the equitable allocation of fire control areas (as defined in the
Uniform Building Code, and adopted by the Township of Horsham ("UBC")) within
the Building for the storage of Hazardous Materials. In the event that Tenant's
use of Hazardous Materials is such that it utilizes fire control areas in the
Building in excess of Tenant's Pro Rata Share of the Building as set forth in
Section 2.1.6 above, Tenant agrees that it shall, at its own expense, and upon
the written request of Landlord, establish and maintain a separate area of the
Demised Premises classified buy the UBC as an "H" occupancy area, for the use
and storage of Hazardous Materials.
39.3. Termination of Lease. Notwithstanding the provisions of Section
39.1 above, if (i) Tenant or the proposed assignee or sublessee of Tenant has
been required by any prior landlord, lender or governmental authority to take
remedial action in connection with Hazardous Materials contaminating a property
if the contamination resulted from such party's action or use of the property in
question, or (ii) Tenant or the proposed assignee or sublessee is subject to an
enforcement order issued by any governmental authority in connection with the
use, disposal or storage of a Hazardous Materials, Landlord shall have the right
to terminate this Lease in Landlord's sole and absolute discretion (with respect
to any such matter involving Tenant) and it shall not be unreasonable for
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39
Landlord to withhold its consent to any proposed assignment or subletting (with
respect to any such matter involving a proposed assignee or sublessee).
39.4. Testing. Unless due to the reasonable belief of Landlord that
further testing is required, not more than annually, prior to the expiration or
earlier termination of the Term, Landlord shall have the right to conduct
appropriate tests of the Demised Premises, the Building and the Project to
demonstrate that contamination has occurred as a result of Tenant's use of the
Demised Premises. Tenant shall be solely responsible for and shall defend,
indemnify and hold the Landlord, its agents and contractors harmless from and
against any and all claims, costs and liabilities including actual attorneys'
fees, charges and disbursements, arising out of or in connection with any
removal, clean up; restoration and materials required hereunder to return the
Demised Premises and any other property of whatever nature to their condition
existing prior to the time of any such contamination. Tenant shall only pay for
the cost of tests of the Demised Premises reasonably required by Landlord due
to the reasonable belief that testing is necessary, but not more than annually,
unless testing is reasonably required more than annually based upon the results
of the previous test.
39.5. Underground Tanks. If underground or other storage tanks storing
Hazardous Materials are located on the Demised Premises or are hereafter placed
on the Demised Premises at the request of or for the benefit of Tenant, Tenant
shall monitor the storage tanks, maintain appropriate records, implement
reporting procedures, properly close any underground storage tanks, and take or
cause to be taken all other steps necessary or required under all applicable
local, state and federal laws and regulations as they now exist or may
hereafter be adopted or amended.
39.6. Tenant's Obligations. Tenant's obligations under this Article 39
shall survive the expiration or earlier termination of the Lease. During any
period of time employed by Tenant or Landlord immediately following the
termination of this Lease to complete the removal from the Demised Premises of
any such Hazardous Materials and the release and termination of any licenses or
permits restricting the use of the Demised Premises, Tenant shall continue to
pay the full Rent in accordance with this Lease, which Rent shall be prorated
daily.
39.7. Definition of "Hazardous Materials." As used herein, the term
"Hazardous Materials" means any pollutant, contaminant, hazardous or toxic
substance, material or waste, including, without limitation, those that are or
become regulated by any local governmental authority, the Commonwealth of
Pennsylvania, or the United States government. The term "Hazardous Material"
includes, without limitation, any material or substance which is (i) designated
as a "hazardous substance" pursuant to Section 311 of the Federal Water
Pollution Control Act (33 U.S.C. Section 1317), (ii) defined as a "hazardous
waste" pursuant to Section 1004 of the Federal Resource Conversation and
Recovery Act, 42 U.S.C. Section 6901, et. seq. (42 U.S.C. Section 6903) or
(iii) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C.
Section 9601 et. seq. (42 U.S.C. Section 9601), all as amended from time to
time and together with the rules and regulations promulgated thereunder.
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40. Right to Extend Term
Tenant shall have the right to extend the Term of the Lease upon the
following terms and conditions:
40.1. Tenant shall have two (2) consecutive rights (each, an "Extension
Right") to extend the term of this Lease for five (5) years each (each, an
"Extension Term") on the same terms and conditions as the Lease other than Basic
Annual Rent. During any Extension Term, Basic Annual Rent shall be adjusted on
the commencement of each Extension Term to the "Prevailing Rate". The term
"Prevailing Rate" as used herein shall mean the fair market rental rate then
being charged for like space similarly situated in comparable buildings
reasonably proximate to the Building in the same city and/or geographical area,
taking into consideration applicable expenses, for the purpose of setting the
Basic Annual Rent, as well as the value of rent concessions, build-out
allowances and the like. Other leases entered into by Landlord for comparable
space shall be evidence of the "Prevailing Rate". The Prevailing Rate shall in
no event less than the Basic Annual Rent payable on the date immediately
preceding the commencement such Extension Term.
40.2. Extension Rights are personal to Cell Pathways, Inc. and are not
assignable separate and apart from this Lease.
40.3. Extension Rights are conditional upon Tenant giving Landlord written
notice of its election to exercise each Extension Right at least one (1) year
prior to the end of the expiration of the initial term of the Lease or the
expiration of any Extension Term. Landlord shall then notify Tenant within
thirty (30) business days of the then Prevailing Rate. Tenant shall have thirty
(30) business days from the date of Landlord's notice of the Prevailing Rate to
exercise the Extension Right by giving Landlord written notice of intent to
renew the Lease for the Extension Term upon the same terms and conditions.
40.4. Notwithstanding anything set forth above to the contrary, Extension
Rights shall not be in effect and Tenant may not exercise any of the Extension
Rights:
40.4.1 during any period of time that Tenant is in Default under any
provision of this Lease; or
40.4.2 if Tenant has been in Default under any provision of this Lease
three (3) or more times, whether or not the Defaults are cured, during the
twelve (12) month period immediately prior to the date that Tenant intends to
exercise an Extension Right.
40.5. The period of time within which any Extension Rights may be exercised
shall not be extended or enlarged by reason of the Tenant's inability to
exercise the Extension Rights because of the provisions of Section 40.4 above.
40.6. The Extension Rights shall terminate and be of no further force or
effect even after
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Tenant's due and timely exercise of an Extension Right, if, after such exercise,
but prior to the commencement date of an Extension Term, (i) Tenant fails to
timely cure any Default by Tenant under this Lease; or (ii) Tenant has Defaulted
three (3) or more times during the period from the date of the exercise of an
Extension Right to the date of the commencement of the Extension Term, whether
or not such Defaults are cured.
41. Tenant Signage.
Tenant shall have the exclusive right to install signage on the facade of
the Building. The signage shall consist only of the names of Tenant, any
permitted sublessee and any party to which this Lease may be assigned so long as
Landlord reasonably determines that such successor's name will not detract from
the first-class character of the Building. The type, location and design of such
signage shall be subject to the reasonable approval of Landlord. Fabrication,
installation, insurance, and maintenance of such signage shall be at Tenant's
sole cost and expense. Tenant covenants and agrees that all work done by Tenant
shall be performed in full compliance with all laws, rules, orders, ordinances,
directions, regulations, and requirements of all governmental agencies, offices,
departments, bureaus and boards having jurisdiction, and in full compliance with
the rules, orders, directions, regulations, and requirements of any applicable
fire rating bureau. Except for the foregoing, no sign, advertisement or notice
visible from the exterior of the Building shall be inscribed, painted or affixed
by Tenant on any part of the Building or Common Areas without the prior consent
of Landlord. Tenant shall remove such signage promptly following the expiration
or earlier termination of this Lease. Any such removal shall be at Tenant's sole
expense, and Tenant shall bear the cost of any resulting repairs to the Building
that are reasonably necessary due to the removal. Should Tenant fail to remove
such signage within ten (10) days following the termination of this Lease, or if
Tenant sooner requests that Landlord remove the signage, Landlord shall effect
the removal and repair at Tenant's expense.
42. Miscellaneous
42.1. Real Estate Investment Trust. Notwithstanding anything to the
contrary set forth herein, nothing in this Lease shall be construed to require
Landlord to take any action or fail to take any action if, in the opinion of
Landlord's counsel, a copy of which shall be provided to Tenant, such action or
inaction would be likely to result in Landlord losing its status as a real
estate investment trust, as defined in Section 856 of the Internal Revenue Code
(as amended).
42.2. Terms and Headings. Where applicable in this Lease, the singular
includes the plural and the masculine or neuter includes the masculine, feminine
and neuter. The section headings of this Lease are not a part of this Lease and
shall have no effect upon the construction or interpretation of any part hereof.
42.3. Examination of Lease. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of or option for lease,
and it is not effective as a lease or otherwise until execution by and delivery
to both Landlord and Tenant.
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42
42.4. Time. Time is of the essence with respect to the performance of
every provision of this Lease.
42.5. Covenants and Conditions. Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
42.6. Consents. Whenever consent or approval of either party is required,
that party shall not unreasonably withhold such consent or approval, except as
may be expressly set forth to the contrary.
42.7. Entire Agreement. The terms of this Lease are intended by the
parties as a final expression of their agreement with respect to the terms as
are included herein, and may not be contradicted by evidence of any prior or
contemporaneous agreement. The Basic Lease Provisions, General Provisions, and
Exhibits all constitute a single document and are incorporated herein.
42.8. Severability. Any provision of this Lease which shall provide to be
invalid, void, or illegal in no way affects, impairs or invalidates any other
provision hereof, and such other provisions shall remain in full force and
effect.
42.9. Recording. Landlord may record a short form memorandum hereof in the
form of Exhibit "E" hereto. Neither party shall record this Lease. Tenant shall
be responsible for the cost of recording any Memorandum of Lease, including any
transfer or other taxes incurred in connection with said recordation.
42.10. Impartial Construction. The language in all parts of this Lease
shall be in all cases construed as a whole according to its fair meaning and
not strictly for or against either Landlord or Tenant.
42.11. Inurement. Each of the covenants, conditions and agreements herein
contained shall inure to the benefit of and shall apply to and be binding upon
the parties hereto and their respective heirs, legatees, devisees, executors,
administrators, successors, assigns, sublessees, or any person who may come
into possession of said Demised Premises or any part thereof in any manner
whatsoever. Nothing in this Section 42.11 contained shall in any way alter the
provisions against assignment or subletting in this Lease provided.
42.12. Notices. Any notice, consent, demand, xxxx, statement, or other
communication required or permitted to be given hereunder must be in writing
and may be given by personal delivery, reputable overnight courier or by mail,
and if given by mail shall be deemed sufficiently given two (2) days after time
when deposited in United States Mail is sent by registered or certified mail,
and if given by other means shall be deemed given when received, addressed to
Tenant at the Demised Premises, or to Tenant or Landlord at the addresses shown
in Sections 2.1.10 and 2.1.11 of the Basic Lease Provisions. Either party may,
by notice to the other given pursuant to this Section, specify additional or
different addresses for notice purposes.
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42.13. Pennsylvania Jurisdiction. This Lease has been negotiated and
entered into in the State of Pennsylvania and shall be governed by, construed
and enforced in accordance with the laws of the State of Pennsylvania, applied
to contracts made in Pennsylvania for Pennsylvania domiciliaries to be wholly
performed in Pennsylvania.
42.14. Authority. That individual or those individuals signing this Lease
guarantee, warrant and represent that said individual or individuals have the
power, authority and legal capacity to sign this Lease on behalf of and to bind
all entities, corporations, partnerships, joint ventures or other organizations
and/or entities on whose behalf said individual or individuals have signed.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first above written.
Landlord:
ARE-702 Electronic Drive, L.P.
a Delaware limited partnership
By: AREE-HOLDINGS, L.P.,
a Delaware limited partnership,
its general partner
By: ARE-GP HOLDINGS QRS CORP.,
a Delaware corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------
Its: C.F.O.
------------------------------
Tenant:
CELL PATHWAYS, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------
Its: VP Financial, CFO & Treasurer
------------------------------
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EXHIBITS
EXHIBIT "A" LEGAL DESCRIPTION
EXHIBIT "B" PLANS
EXHIBIT "C" TENANT'S PROPERTY
EXHIBIT "D" ESTOPPEL CERTIFICATE
EXHIBIT "E" FORM OF MEMORANDUM OF LEASE
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EXHIBIT "A"
LEGAL DESCRIPTION
A-1
47
ALL THAT CERTAIN tract or parcel of land, SITUATE in Horsham Township,
Xxxxxxxxxx County, Pennsylvania, bounded and described according to a Plan of
Horsham Industrial Properties, Inc., made by Xxxxxx X. Xxxxxxx, dated June 17,
1982 and revised and recorded in Plan Book A-44 page 259, as follows, to wit:
BEGINNING from a point at the intersection of the center line of Xxxxxxx Road
(33 feet wide) with the center line of the concrete paving on Welsh Road (80
feet wide), THENCE extending along the center line of Xxxxxxx Road, North 46
degrees 25 minutes 00 seconds East a distance of plus or minus 1.090.00 feet
to a point; THENCE leaving the center line of Xxxxxxx Road crossing the
Southeasterly right of way extending along lands now or lake of the F.M.C.
Corp., South 40 degrees 33 minutes 15 seconds East, a distance of 440.58 feet
to a point, said point being the point and place of beginning; THENCE extending
along lands now or late of Horsham Industrial Properties, Inc., North 49
degrees 14 minutes 45 seconds East, a distance of 385.00 feet to a point on the
line of lands now or late of Penallen Corporation formerly of Horsham
Industrial Properties, Inc.; THENCE along lands of the same, South 40 degrees
33 minutes 15 seconds East, a distance of 546.14 feet to a point; THENCE
extending along the same, South 49 degrees 14 minutes 45 seconds West, a
distance of 71.40 feet to a point on the Northerly right of way of Electronic
Drive; THENCE extending along the same, on the arc of a circle curving to the
left having a radius of 60.00 feet the arc distance of 163.80 feet to a point;
THENCE extending along the same on the arc of a circle curving to the right
having a radius of 40 feet the arc distance of 46.37 feet to a point; THENCE
extending along the same, South 49 degrees 14 minutes 45 seconds West, a
distance of 191.99 feet to a point on the line of lands of the aforementioned
F.M.C. Corp.; THENCE extending along the same North 40 degrees 33 minutes 15
seconds West, a distance of 546.14 feet to the point and place of beginning.
BEING LOT NO. 1.
BEING ASSESSMENT PARCEL NUMBER 36-00-04134-50-1.
BEING the same premises which Horsham Rental Properties, A Pennsylvania Limited
Partnership by Deed dated 10/16/1996 and recorded 11/12/1996 in Xxxxxxxxxx
County, Pennsylvania in Deed Book 5167 page 767, conveyed unto Marave
Associates, L.P., A Pennsylvania Limited Partnership, in fee.
48
EXHIBIT "B"
PLANS
Attached hereto is a reduced copy of the Cover Sheet/Site Plan, Drawing number
A0.1, for a project titled Proposed Building Renovations, prepared for Tenant by
Integrated Project Services of Lafayette Hill, Pennsylvania, dated 9/12/97. Said
Drawing Number A0.1 and all architectural, mechanical, electrical and plumbing
drawing identified thereon, and all amendments thereto, are incorporated herein
by reference as though the originals of all such drawings were attached hereto.
X-0
00
XXXX XXXXXXXX
0 XXXXXXXXXXX XXXXX, XXXXXXX XXXXXXXX, XX
P.N. 97056.00
[Site Plan]
50
EXHIBIT "C"
TENANT'S PROPERTY
Furniture
File Cabinets
Projection Equipment
Glass washer and portable deionized water system
Phone systems, including phones
Computers and printers
Duplicating Equipment
Fax machines
Laboratory Equipment - Horsham, PA
Laboratory Equipment - Aurora, CO (will move to Horsham, PA.).
Laboratory Supplies
Office Supplies
Portable Appliances
C-1
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EXHIBIT "D"
TENANT ESTOPPEL CERTIFICATE
---------------------------
THIS TENANT ESTOPPEL CERTIFICATE ("Certificate"), dated as of _________,
1998, is executed by Cell Pathways, Inc. ("Tenant") in favor of
__________________________________________________, together with its nominees,
designees and assigns (collectively, "Purchaser"), and in favor of any lender
of Purchaser, together with its nominees, designees and assigns (collectively,
"Lender").
RECITALS
------------
A. Purchaser and ARE-702 Electronic Drive, L.P., a Delaware limited
partnership ("Landlord"), have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions, dated as of ________________ (the
"Purchase Agreement"), whereby Purchaser has agreed to purchase, among other
things, the improved real property located in the City of Horsham, State of
Pennsylvania, more particularly described on Exhibit "A" attached to the
Purchase Agreement (the "Property").
B. Tenant and Landlord have entered into that certain Lease Agreement,
dated as of _______________ (together with all amendments, modifications,
supplements, guarantees and restatements thereof, the "Lease"), for a portion
of the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has requested that
Tenant execute this Certificate with an understanding that Purchaser will rely
on the representations and agreements below in purchasing the Property and
Lender will rely on the representations and agreements below in granting to
Purchaser a loan.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Purchaser
and Lender as follows:
SECTION 1. LEASE.
Attached hereto as Exhibit "1" is a true, correct and complete copy of the
Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements, guarantees and restatements thereof:
D-1
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________________________________________________________________________________
(If none, please state "None.")
SECTION 2. LEASED PREMISES.
Pursuant to the Lease, Tenant leases those certain premises (the "Leased
Premises") consisting of approximately __________________ (____________)
rentable square feet within the Property, as more particularly described in the
Lease. In addition, pursuant to the terms of the Lease, Tenant has the
[non-exclusive] right to use [____ parking spaces/the parking area] located on
the Property during the term of the Lease. [Cross-out the preceding sentence or
portions thereof if inapplicable.]
SECTION 3. FULL FORCE OF LEASE.
The Lease has been duly authorized, executed and delivered by Tenant, is
in full force and effect has not been terminated and constitutes a legally
valid instrument, binding and enforceable against Tenant in accordance with its
terms, subject only to applicable limitations imposed by laws relating to
bankruptcy and creditor's rights.
SECTION 4. COMPLETE AGREEMENT.
The Lease constitutes the complete agreement between Landlord and Tenant
for the Leased Premises and the Property, except as modified by the Lease
amendments noted above (if any), has not been modified, altered or amended.
SECTION 5. ACCEPTANCE OF LEASED PREMISES.
Tenant has accepted possession and is currently occupying the Leased
Premises.
SECTION 6. LEASE TERM.
The term of the Lease commenced on __________________________ and ends on
_________________________________, subject to the following options to extend:
____________________________________________________________________.
(If none, please state "None.")
SECTION 7. PURCHASE RIGHTS.
Tenant has no option, right of first refusal, right of first offer, or
other right to acquire or purchase all or any portion of the Leased Premises or
all or any portion of, or interest in, the Property, except as follows:
______________________________________________________________________________
___________________________________________________________.
(If none, please state "None.")
D-2
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SECTION 8. RIGHTS OF TENANT.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any part of the
Leased Premises or all or any part of the Property;
(c) has no right, title, or interest in the Leased Premises, other than
as Tenant under the Lease.
SECTION 9. RENT.
(a) The obligation to pay rent under the Lease commenced on
_____________. The rent under the Lease is current, and Tenant is not in
default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the amount of
_______________ Dollars ($_________) per month. Tenant has not received and is
not, presently, entitled to any abatement, refunds, rebates, concessions or
forgiveness of rent or other charges, free rent, partial rent, or credits,
offsets or reductions in rent, except as follows: _____________________________
_______________________________________________________________________________
______________________________________
(If none, please state "None.")
(c) Tenant's estimated share of operating expenses, common area charges,
insurance, real estate taxes and administrative and overhead expenses is
____________ percent (_____%) and is currently being paid at the rate of
___________________ Dollars ($________) per month, payable to: ________________
_______________________________________________________
(d) There are no existing defenses or offsets against rent due or to
become due under the terms of the Lease, and there presently is no default or
other wrongful act or omission by Landlord under the Lease or otherwise in
connection with Tenant's occupancy of the Leased Premises, nor is there a state
of facts which with the passage of time or the giving of notice or both could
ripen into a default on the part of Tenant, or to the best knowledge of Tenant,
could ripen into a default on the part of Landlord under the Lease, except as
follows: ______________________________________________________________________
_______________________________________________________________________________
______________________________________
(If none, please state "None.")
D-3
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SECTION 10. SECURITY DEPOSIT.
The amount of Tenant's security deposit held by Landlord under the Lease
is _____________ Dollars ($___________).
SECTION 11. PREPAID RENT.
The amount of prepaid rent, separate from the security deposit, is
_________ Dollars ($________), covering the period from ________ to ________ .
SECTION 12. INSURANCE.
All insurance, if any, required to be maintained by Tenant under the Lease
is presently in effect.
SECTION 13. PENDING ACTIONS.
There is not pending or, to the knowledge of Tenant, threatened against or
contemplated by the Tenant, any petition in bankruptcy, whether voluntary or
otherwise, any assignment for the benefit of creditors, or any petition seeking
reorganization or arrangement under the federal bankruptcy laws or those of any
state.
SECTION 14. TENANT'S WORK.
As of the date of this Certificate, to the best of Tenant's knowledge,
Landlord has performed all obligations required of Landlord pursuant to the
Lease; no offsets, counterclaims, or defenses of Tenant under the Lease exist
against Landlord; and no events have occurred that, with the passage of time or
the giving of notice, would constitute a basis for offsets, counterclaims, or
defenses against Landlord, except as follows:_________________________________
______________________________________________________________________________
(If none, please state "None.")
SECTION 15. ASSIGNMENTS BY LANDLORD.
Tenant has received no notice of any assignment, hypothecation or pledge
of the Lease or rentals under the Lease by Landlord. Tenant hereby consents to
an assignment of the lease and rents to be executed by Landlord to Purchaser or
Lender in connection with the Loan and acknowledges that said assignment does
not violate the provisions of the Lease. Tenant acknowledges that the interest
of the Landlord under the Lease is to be assigned to Purchaser or Lender solely
is security for the purposes specified in said assignment and Purchaser or
Lender shall have no duty, liability or obligation whatsoever under the Lease
or any extension or renewal thereof, either by virtue of said
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assignment or by any subsequent receipt or collection of rents thereunder,
unless Purchaser or Lender shall specifically undertake such liability in
writing. Tenant agrees that upon receipt of a written notice from Purchaser or
Lender of a default by Landlord under the Loan, Tenant will thereafter pay rent
to Purchaser or Lender in accordance with the terms of the Lease.
SECTION 16. ASSIGNMENTS BY TENANT.
Except as listed below, Tenant has not sublet or assigned the Leased
Premises or the Lease or any portion thereof to any sublessee or assignee. No
one except Tenant and its employees will occupy the Leased Premises. The
address for notices to be sent to Tenant is as set forth in the Lease.
SECTION 17. ENVIRONMENTAL MATTERS.
The operation and use of the Leased Premises does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials and/or solid waste, except those used
in the ordinary course of operating a medical laboratory or otherwise used in
accordance with all applicable laws.
SECTION 18. SUCCESSION OF INTEREST.
Tenant agrees that, in the event Purchaser or Lender succeeds to interest
of Landlord under the Lease:
(a) Purchaser or Lender shall not be liable for any act or omission of any
prior landlord (including Landlord);
(b) Lender shall not be liable for the return of any security deposit;
(c) Purchaser or Lender shall not be bound by any rent or additional rent
which Tenant might have prepaid under the Lease for more than the current
month;
(d) Purchaser or Lender shall not be bound by any amendments or
modifications of the Lease made without prior consent of Purchaser or Lender;
(e) Purchaser or Lender shall not be subject to any offsets or defenses
which Tenant might have against any prior landlord (including Landlord); or
(f) Purchaser or Lender shall not be liable under the Lease to Tenant for
the performance of Landlord's obligations under the Lease beyond Purchaser or
Lender's interest in the Property.
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SECTION 19. NOTICE OF DEFAULT.
Tenant agrees to give Purchaser and Lender a copy of any notice of default
under the Lease served upon Landlord at the same time as such notice is given to
the Landlord. Tenant further agrees that if Landlord shall fail to cure such
default within the applicable grace period, if any, provided in the Lease, then
Purchaser or Lender shall have an additional sixty (60) days within which to
cure such default, or if such default cannot be cured within such sixty (60) day
period, such sixty (60) day period shall be extended so long as Purchaser or
Lender has commenced and is diligently pursuing the remedies necessary to cure
such default (including, but not limited to, commencement of foreclosure
proceedings, if necessary to effect (such cure), in which event the Lease shall
not be terminated while such remedies are being pursued.
SECTION 20. NOTIFICATION BY TENANT.
From the date of this Certificate and continuing until __________, Tenant
agrees to immediately notify Purchaser and Lender, in writing by registered or
certified mail, return receipt requested, at the following addresses, on the
occurrence of any event or the discovery of any fact that would make any
representation contained in this Certificate inaccurate:
If To Purchaser: _________________________
_________________________
_________________________
_________________________
With A Copy To: _________________________
_________________________
_________________________
_________________________
Tenant makes this Certificate with the knowledge that it will be relied
upon by Purchaser and Lender in agreeing to purchase the Property.
Tenant has executed this Certificate as of the date first written above by
the person named below, who is duly authorized to do so.
TENANT,
CELL PATHWAYS, INC., A Delaware corporation
By: _________________________
Name: _________________________
Its: _________________________
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EXHIBIT "E"
FORM OF MEMORANDUM OF LEASE
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made as of June 25, 1998 (the "Execution
Date"), by and between ARE-702 Electronic Drive, L.P., a Delaware limited
partnership with an address at 000 X. Xxx Xxxxxx Xxx. Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx ("Landlord"), and Cell Pathways, Inc., a Delaware corporation with
an address at 000 Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx ("Tenant"),
collectively referred to herein as the "Parties", and each, individually, a
"Party."
WITNESSETH:
WHEREAS, Landlord is the fee owner of certain property located in the
Township of Horsham, Xxxxxxxxxx County, Pennsylvania, and more particularly
described on EXHIBIT "A" attached hereto and made a part hereof and the
building and improvements thereon (collectively, such land, building and
improvements, as they may be expanded, reduced, altered or improved, are
hereinafter called the "Leased Premises").
WHEREAS, pursuant to a certain Lease of even date herewith (the
"Lease"), Landlord has leased the Leased Premises to Tenant, and Tenant has
accepted and leased the Leased Premises from Landlord; and
WHEREAS, Landlord and Tenant desire to execute and record this
Memorandum to provide record notice of the Lease and certain terms contained
therein.
NOW, THEREFORE, the Parties confirm as follows:
1. Premises. Pursuant to the Lease, which is dated the date entered in
the caption of this Memorandum, Landlord has leased to tenant, and
Tenant has leased from Landlord, on the terms and conditions set forth
in the Lease, the Leased Premises.
2. Term. The term of the Lease consists of (i) an initial term ("Initial
Term") of ten (10) years beginning on June 25, 1998 and ending on June
24, 2008 hereof and (ii) subject to the conditions for the exercise
thereof as provided in the Lease, Tenant shall have the option to
extend (sometimes the "Option to Extend") the Term for two (2)
extension period(s) of five (5) years each.
3. Tenant's Improvements. By virtue of the Lease, Tenant has the right
(and, as to the initial improvements, the obligation) to construct
certain leasehold improvements upon the
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Leased Premises, all as specifically set forth in the Lease. No work,
improvements, alterations or other items of labor or material for which any
mechanic's or materialmen's lien may be filed, performed by or on behalf of
Tenant, or any person or entity holding any interest in the leased Premises
by, through or under Tenant, shall be deemed to be for the use or benefit
of Landlord, and in no event shall any mechanic's or materialmen's liens
for any such work, labor or materials be filed against or attached to the
estate of the Landlord, and Tenant shall be solely responsible for the
payment for any and all such work, labor and materials.
4. Inquiries. Inquiries concerning the precise terms of the Lease may be made
to:
If to Tenant: Cell Pathways, Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
If to Landlord: ARE-702 Electronic Drive, L.P.
c/o Alexandria Real Estate Equities, Inc.
000 X. Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Corporate Secretary
5. Successors. The lease provides that all of the rights and obligations
created therein shall bind and inure to the benefit of the respective
heirs, personal representatives, successors, grantees and assigns of
Landlord and Tenant and that the respective restrictions, covenants and
obligations pertaining to the Leased Premises shall run with the land.
6. Incorporation and Conflicts. All of the terms and conditions of the Lease
are incorporated herein by reference as though set forth fully herein.
This Memorandum is intended for notice purposes only and in the event of
any conflict between the terms hereof and of the Lease, the Lease shall
prevail. Nothing contained herein is intended to modify or alter the
terms, conditions or provisions of the Lease.
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IN WITNESS WHEREOF, this Memorandum of Lease is executed as of the date
first above written.
LANDLORD: TENANT:
ARE-702 Electronic Drive, L.P., CELL PATHWAYS, INC.,
a Delaware limited partnership A Delaware corporation
By: AREE-HOLDINGS, L.P., By: __________________________________
a Delaware corporation, Name: ________________________________
its general partner Its: _________________________________
By: ARE-GP HOLDINGS QRS CORP.,
a Delaware corporation,
its general partner
By: _________________________
Name: _______________________
Its: ________________________
Execution Date: _______________, 1998 Execution Date: ________________, 1998
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COMMONWEALTH OF PENNSYLVANIA)
) ss.
COUNTY OF _______________ )
On the ___ day of _______________ 1998, before me, a Notary Public in and
for the Commonwealth and County aforesaid, the undersigned officer, personally
appeared _________________ who acknowledged himself to be the (Vice) President
of ___________________ a corporation, and that (s)he as such officer, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the said corporation by himself/herself as
such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
________________________________
NOTARY PUBLIC
(NOTARIAL SEAL)
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA)
) ss.
COUNTY OF _______________ )
On the ___ day of _______________ 1998, before me, a Notary Public in and
for the Commonwealth and County aforesaid, the undersigned officer, personally
appeared _________________ who acknowledged himself to be the (Vice) President
of ___________________ a corporation, and that (s)he as such officer, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the said corporation by himself/herself as
such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
________________________________
NOTARY PUBLIC
(NOTARIAL SEAL)
My Commission Expires:
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