EXHIBIT 10-ee
LEASE AGREEMENT
THIS LEASE, (sometimes referred to as the "Lease" or "Agreement"),
made between Ortho Pharmaceutical Corporation, a Delaware corporation, by its
division Ortho McNeil Pharmaceutical Division, with a principal place of
business at U.S. Route #202, Raritan, New Jersey 08869-0602, ("Landlord" or
"Ortho") and Advanta Corp., a Delaware corporation with an office for the
conduct of business at 5 Horsham Business Center, 300 Welsh Road, Horsham,
Pennsylvania 19044 ("Tenant" or "Advanta").
WITNESSETH:
Landlord does hereby lease unto Tenant, and Tenant hereby leases and
takes from Landlord the following described premises for the term and upon the
rentals and conditions hereinafter set forth.
ARTICLE I
PREMISES AND TERM
1.1 Description of Premises. Landlord does hereby lease unto Tenant,
and Tenant hereby leases and takes from Landlord for the term and upon the
rentals and conditions hereinafter set forth:
ALL THAT CERTAIN 109,511 square foot space located in the Township
of Lower Gwynedd, County of Montgomery, Commonwealth of Pennsylvania, which is
more particularly described on Schedule "A", attached hereto (the "Leased
Premises", "Premises" or "premises"). The Leased Premises are part of a larger
parcel of land with
improvements thereupon (the "Total Premises" or "campus") and the building of
which the Leased Premises are a part is sometimes referred to as the "Spring
House Facility" or "Building" as outlined on Schedule A. Tenant acknowledges
that it is leasing the Leased Premises in their "as-is" condition, except as
otherwise specifically provided in this Lease; and that Landlord is not
responsible for providing any services to Tenant with respect to the Leased
Premises except as otherwise specifically provided in this Lease. Landlord
grants to Tenant the right and non-exclusive easement to use, subject to section
6.1 below, and the other terms of this Lease, those portions of the Building
referred to as the auditorium, cafeteria, visitor's dining room and video
conference center shown on Schedule B. Landlord grants to Tenant the exclusive
easement, subject to the terms of this Lease, to use 320 parking spaces, which
are designated on Schedule B (the "Parking Areas"). Landlord grants to Tenant
the right and non-exclusive easement to use the outdoor athletic facilities,
subject to the terms of this Lease at Tenant's own risk. Landlord grants to
Tenant the right and non-exclusive easement, subject to the terms of this Lease
to use all parking areas, access and egress roads, streets, driveways, exterior
ramps and walks in the Total Premises (all hereinafter called the "Interior
Roadways"). Tenant agrees and acknowledges that Landlord and its employees (but
not Landlord's visitors) shall have the non-exclusive right of access to the
portion of the Spring House Facility retained by Landlord through the lobby of
the Leased Premises as shown in Schedule A on the terms and conditions set forth
on Schedule D, including compliance with the reasonable rules and regulations of
Tenant. Landlord acknowledges that the lobby is part of the Leased Premises,
will be known as the Advanta lobby, will be staffed by an Advanta receptionist
and will reflect the presence of Advanta.
1.2 Term. The initial term of Lease (sometimes referred to as the
"Initial Term") shall be for a period of 120 months, commencing on November 1,
1995 and terminating on October 31, 2005,
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unless earlier terminated as provided herein or unless extended as provided
herein with respect to any specified Tenant option to extend, or unless
otherwise extended by the written agreement of the parties.
ARTICLE II
RENT
Tenant agrees to pay to Landlord at such place designated by
Landlord, without any prior demand therefor and without any deduction (except
for the initial free base rent period specified below) or setoff whatsoever, the
following rents:
(a) Base Rent ("Base Rent"):
Respective Monthly
12 Month Period Annual Rent Installments
- --------------- ----------- ------------
First 12 month period $2,025,953.50 $168,829.46
through end of fifth (based on a gross
12 month period, except rate of $18.50 per
as set forth in the square foot).
last sentence of
this paragraph (a). The
Base Rent for this period
includes electric and other
utilities as specified in
Schedule B, but excludes
Special Service Fees
(defined below), and
janitorial.
Sixth 12 month $2,228,548.85 $185,712.40
period through end (based on a gross
of tenth 12 month rate of $20.35 per
period. The Base square foot)
Rent for this period
includes electric and
the other specified
utilities, but excludes
Special Service Fees,
janitorial and Tenant's
Share of real estate
taxes as specified in
(b) below.
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All of such monthly installments shall be payable on or before the first
day of each calendar month during the term hereof, in advance. Payments for any
period of less than a full month shall be prorated for the days actually
covered. Tenant shall be responsible for paying any sales tax or other taxes
(except for any net income, excess profit, excise, franchise, estate, succession
and inheritance taxes, penalties due to Landlord's lateness or failure to pay
taxes when due and transfer taxes imposed on Landlord) with respect to the rent
payable under this Lease, and Landlord may at its option collect such taxes from
Tenant. Notwithstanding the foregoing, Tenant shall not be obligated to make any
rent payments reflected above during the first 6 months of the Initial Term.
(b) Additional Rent:
(i) Real Estate Taxes: With respect to the sixth 12 month period through the end
of the tenth 12 month period during this Lease, Tenant shall pay 17.64%
(Tenant's Share") of any increase in real estate taxes pertaining to the Total
Premises which is not caused by any reassessment due to construction on the
Spring House Facility and which is in excess of 10% above the real estate taxes
of $989,404 in effect at the commencement of the Lease. Tenant's Share of the
increase in real estate taxes calculated as set forth above will be paid within
30 days of delivery of a bill by Landlord to Tenant. At Landlord's discretion
following an Event of Default by Tenant, Landlord will reasonably estimate the
Tenant's tax payment for the applicable 12 month period, and can collect 1/12 of
such estimated payment as additional monthly rent; with the parties effecting a
year end adjustment if needed when the final taxes are known for such 12 month
period to reflect Tenant's Share based on such final tax figures. Tenant shall
not be obligated to pay any portion of real estate taxes or real estate tax
increases for the period prior to the end of the fifth l2-month period of the
Initial Term.
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(ii) Special Service Fees: In addition to Base Rent, Tenant shall pay an amount
to Landlord in payment for the services listed on Schedule B, attached hereto
and made a part hereof, pursuant to Article VI, below (the "Special Service
Fees"). Special Service Fees will be billed monthly by Landlord, if applicable,
and will be payable by Tenant within 30 days of delivery of the monthly bill by
Landlord.
ARTICLE III
USE OF PREMISES
Tenant shall use the Leased Premises solely for business office use
and accessory office use purposes and shall not alter such use without the prior
written consent of Landlord. Landlord represents and warrants that, to
Landlord's best knowledge, the Leased Premises may be used as a business office
use. Landlord advises Tenant that Landlord has been advised by the Zoning
Officer for Lower Gwynedd Township/Spring House that the current zoning of the
Total Premises permits multi-tenant use by Special Exception. Landlord, at its
sole cost and expense, shall use reasonable efforts to obtain or cause to be
obtained all zoning approvals, use permits and certificates of occupancy (but
not relating to any Tenant improvements/alterations or licenses or permits
required for the conduct of Tenant's business as opposed to Tenant's use of the
Leased Premises as an office) ("Permits"), with all applicable appeal periods
having expired and in final, irrevocable and uncontestable form, necessary and
required by all state and municipal governments (the "Authorities"), for the
lawful use, occupancy, maintenance and operation of the Spring House Facility
by Tenant for its intended purposes. If the Landlord fails to obtain all the
necessary Permits, under the conditions stated above, on or before October 31,
1995 or Tenant is unable to obtain any license or permit required from Lower
Gwynedd Township for the conduct of Tenant's business on or prior to such date,
either Landlord or Tenant may terminate this Lease, upon which the parties
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shall have no further obligations hereunder. Tenant shall be responsible for
conducting its operations in the Leased Premises in accordance with all
applicable laws and regulations.
ARTICLE IV
QUIET ENJOYMENT
Provided that Tenant complies with its obligations in this Lease,
Landlord agrees that Landlord will permit Tenant to occupy, possess and enjoy
the Leased Premises under the provisions of this Lease during the term as set
forth herein, without hindrance or molestation from Landlord or from any person
claiming by, from or under Landlord.
ARTICLE V
IMPROVEMENTS, REPAIRS AND MAINTENANCE
5.1 Repairs and Maintenance by Landlord. Landlord shall be required
to make all structural repairs and/or replacements, to the Leased Premises or
the Building of which the Leased Premises are a part, including the repair or
replacement of the roof, foundations, and exterior walls and interior load
bearing walls that are necessary to maintain the Leased Premises and the
Building in a first class condition. Landlord shall also be required to make all
repairs and/or replacements, to the heating, air-conditioning, ventilation,
mechanical, electrical and plumbing systems both in the Building outside of the
Leased Premises, and in the Leased Premises to the extent such systems are
within the walls or above the ceilings, or below the floors in the Leased
Premises, that are necessary to maintain such systems in a first class
condition. Landlord shall also make all repairs, replacements and maintenance to
the Parking Areas and the Interior Roadways that are reasonably necessary to
maintain the Total Premises in a first-class condition.
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Any repairs/replacements deemed Landlord's responsibility but caused
by the negligence of the Tenant, its agents, servants and/or invitees hereunder
shall be the responsibility of the Tenant to repair.
5.2 Tenant's Repair/Maintenance Obligations. Tenant shall, at its
own expense, be required (subject to Section 5.3) to make all repairs to the
portion of the Leased Premises within the interior faces of the ceilings, walls,
and the floors necessary to maintain the Leased Premises in a first-class
condition, but excluding, repairs/replacement or maintenance required to the
heating, air-conditioning, ventilation, mechanical, electrical and plumbing
systems in the Leased Premises beyond the interior faces of the walls, ceilings
and floors. Tenant shall repair and replace any window glass within the Leased
Premises. Any repairs/replacements deemed Tenant's responsibility, but caused by
the negligence of Landlord, its agents, servants and/or invitees shall be the
responsibility of the Landlord to repair.
5.3 Improvements/Alternations by Tenant. Tenant shall make no
structural improvements/alterations to the Leased Premises without the prior
written consent of the Landlord, which Landlord agrees shall not be unreasonably
withheld or delayed. Tenant shall not require the prior written consent of
Landlord for any non-structural improvements/alterations for which the estimated
cost for a specific project does not exceed $10,000, or where the aggregate of
all such projects does not exceed $75,000. For any improvements/alterations for
which Landlord's consent is required, Landlord shall endeavor to respond to
Tenant's plans within 10 business days of receipt. In the event Landlord does
not approve Tenant's plans, it shall notify Tenant in writing, listing its
specific objections to the plans. Any improvements/alterations by Tenant must be
made in a workmanlike manner. Tenant shall provide suitable evidence of Worker's
Compensation Liability Insurance covering all persons working at its direction.
Tenant shall be
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liable for any damage or injury to the Leased Premises, persons or property
arising out of or associated with the construction or installation of such
improvements/alterations. Tenant shall allow no liens to be filed against the
Building or any part of Landlord's interest in the Building or the Leased
Premises in connection with any work performed by or on behalf of Tenant with
respect to the Leased Premises. Tenant agrees that Landlord shall have the right
with respect to any proposed Tenant repair to be made under Section 5.2 or any
proposed Tenant improvement/alteration for which Landlord's consent is required
under Section 5.3 to elect to approve a contractor selected by Tenant who shall
perform the repair or improvement/alteration at Tenant's expense. Landlord
agrees that its consent to Tenant's contractor shall not be unreasonably
withheld or delayed. Tenant shall have the right, from time to time throughout
the term of the Lease, to install within the Leased Premises and to attach
thereto any trade fixtures, equipment or other personal property ("Tenant's
Fixtures") deemed necessary by Tenant for the operation of its business within
the Leased Premises. Title to any Tenant's Fixtures which may be placed in or
upon or affixed to the Leased Premises by, for, or under Tenant shall remain in
Tenant and Tenant alone shall be entitled to claim depreciation therefor, Tenant
may remove Tenant's Fixtures at any time before or upon vacating the Leased
Premises. Without limiting the foregoing, it is acknowledged that Tenant intends
to submit plans to alter at Tenant's expense the Leased Premises. Landlord
acknowledges that the Leased Premises will be substantially gutted and will
undergo substantial renovations, and as part of the renovations, Tenant shall
renovate the Lobby portion of the Leased Premises to manifest its presence and
occupancy of the Leased Premises as generally described in Schedule A-2 hereto,
but subject to submission of specific plans as referenced below. Landlord agrees
that its consent to Tenant's plans shall not be unreasonably withheld or
delayed, and shall endeavor to respond to Tenant's submission of plans within 10
business days of receipt. In the event Landlord does not approve Tenant's plans,
it shall notify
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Tenant in writing listing its specific objections to the plans. If Landlord
notifies Tenant of specific objections to the plans, Tenant shall make such
revisions as it deems acceptable and resubmit the plans to Landlord, Landlord
shall endeavor to respond to Tenant's resubmission of plans within 5 business
days of receipt. If Landlord does not approve of Tenant's plans as resubmitted,
Landlord shall notify Tenant in writing, listing the specific objections to the
resubmitted plans. Thereafter, Tenant may further modify Tenant's plans for a
second resubmission and to repeat the process. During the course of
construction, Tenant may make minor revisions to approved plans, provided any
such changes are promptly delivered to Landlord.
5.4 Surrender in Good Order. Tenant shall, upon the expiration or
sooner termination of the term of this Lease, surrender to Landlord the entire
Leased Premises, broom-clean, free of subtenancies, and in good condition and
repair, reasonable wear and tear excepted. Any improvements/alterations
belonging to Tenant or any subtenant, if not removed by such termination
(subject to the provisions below), shall be deemed abandoned and shall become
the property of Landlord. Tenant may however, before the expiration of this
Lease, remove from the Leased Premises all fixtures, non-structural
improvements/alterations, machinery, equipment, furniture and partitions, except
those installed by Landlord (and subject to the provisions below Tenant shall
remove all such referenced items of Tenant at the end of this Lease if requested
by Landlord). Tenant shall repair, restore and save Landlord harmless from all
damages to the Leased Premises caused by such removal by Tenant. Tenant agrees
not to cause any waste during the term of this Lease. Without limiting the
foregoing, Tenant shall be obligated at Tenant's expense upon the request of
Landlord to restore the Leased Premises at the termination of the Lease to the
condition existing prior to any alterations/improvements effected by Tenant
after the initial alterations contemplated in Section 5.3 above, unless the
parties have specifically agreed otherwise in writing with respect
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to any specific Tenant improvement/alteration made after the initial alterations
contemplated in Section 5.3 above, The parties acknowledge that any initial
alterations contemplated in Section 5.3 shall be left in the Leased Premises by
Tenant, and Landlord shall not be obligated to pay anything to or on behalf of
Tenant with respect to such alterations, and Landlord shall own all such
alterations upon termination of this Lease; provided that Tenant shall be
allowed to remove any of Tenant's Fixtures including without limitation its
personal property).
ARTICLE VI
UTILITIES, SERVICES, PERSONAL PROPERTY TAXES AND OTHER EXPENSES
6.1 Utilities/Services. Landlord shall cause to be supplied the
utilities/services with respect to the Leased Premises as specified in Schedule
B hereto at the times set forth in Schedule B. The charge for the
utilities/services is included in the Base Rent under the Lease, except as
otherwise provided in Schedule B. To the extent that Tenant shall pay amounts in
addition to the Base Rent for extended or extra utilities/services, such amounts
are referenced in Schedule B (the "Special Service Fees"). Landlord shall not be
liable for any failure to supply such utilities/services to the extent due to
any causes beyond the reasonable control of Landlord, Landlord will use its
reasonable best efforts to minimize any interruption in utilities/services. If
Landlord and Tenant agree to have Landlord provide any additional
services/utilities, such agreement must be specified in writing signed by the
parties. Without limiting the foregoing, it is acknowledged that Tenant's
specified rental charges do not include any provision for janitorial services
with respect to the Leased Premises, and Tenant is responsible for arranging and
paying for such janitorial services.
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6.2 Tenant's Personal Property Taxes. Tenant shall be responsible
for the payment of all personal property taxes levied or assessed upon the
fixtures, equipment, leasehold improvements/alterations or inventory of Tenant
contained within the Leased Premises.
6.3 Other Expenses/Items. Except as specified in this Lease as items
to be supplied by Landlord to Tenant, Tenant shall be responsible for arranging
at its expense for all services, utilities and any other items in connection
with Tenant's use of the Leased Premises.
ARTICLE VII
INSURANCE
7.1 Fire Insurance. Tenant agrees to obtain and maintain in full
force and effect during the term of this Lease, fire insurance with extended
coverage endorsement, for full replacement value with respect to the leasehold
improvements made by Tenant to the Leased Premises and Tenant's Fixtures,
including Tenant's personal property. Landlord shall be named as an additional
insured under such policy. Landlord agrees to obtain and maintain in full force
and effect fire insurance with extended coverage endorsement, for the full
replacement value with respect to the Building, including the heating,
ventilating and air conditioning systems in the Leased Premises to the extent
such systems are within the walls or above the face of the ceiling or below the
floor in the Leased Premises.
7.2 Tenant's Other Insurance. Tenant, at its sole cost and expense,
but for the mutual benefit of Landlord and Tenant (Landlord being named as an
additional insured under such policy) will throughout the entire term of this
Lease maintain general public liability insurance against claims for bodily
injury, death or property damage occurring in the Leased Premises; such
insurance
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to afford immediate protection, at the time of the commencement of the term of
this Lease, to the limit of not less than $5,000,000 per occurrence
liability/property damage combined. Upon request, Tenant will provide Landlord
with evidence of such insurance coverage, as well as the insurance coverage
under Section 7.1. In the event Tenant effects any option to extend under this
Lease, the amounts of such Tenant insurance shall be increased (but not
decreased) during any such option term to reflect the percent increase in the
United States National Consumer Price Index ("CPI"), as reported by the United
States Federal Government, between the CPI in effect at the commencement of the
Initial Term and the CPI in effect at the beginning of the option term effected
by Tenant.
7.3 Qualification of Insurers. All insurance provided by Tenant in
this Lease shall be effected under enforceable policies issued by insurers of
recognized responsibility, reasonably acceptable to Landlord, and licensed to do
business in the state where the Leased Premises are located.
ARTICLE VIII
DESTRUCTION OF PREMISES
8.1 Partial Destruction. In the event that the Leased Premises,
shall, while this Lease continues, be partially destroyed by fire or other
casualty to the extent of less than 50% of the replacement cost of the Leased
Premises, then Landlord shall forthwith repair, rebuild or restore the Leased
Premises as speedily as practicable to the condition which existed immediately
prior to the damage or destruction. In effecting such repairs, Landlord shall
submit its plans for the work to Tenant to obtain Tenant's approval, which
approval shall not be unreasonably withheld or delayed. If the Leased Premises
cannot, in Landlord's reasonable opinion, be repaired or restored within 120
days from the date of such damage or destruction, Landlord shall notify Tenant
in writing
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within 20 days of the date of said damage or destruction, of its opinion that
the Leased Premises cannot be repaired within such 120 day period. In such
event, Tenant may elect to terminate this Lease by giving written notice to
Landlord, and thereupon this Lease shall terminate and Landlord shall not be
obligated to rebuild and the Landlord shall release any claim to the proceeds of
insurance maintained by Tenant on the Leased Premises, If Tenant does not elect
to terminate, Landlord shall be obligated to repair the Leased Premises
forthwith. The percentage of the rent pertaining to the untenantable portion of
the Leased Premises shall abate from the occurrence of such damage until said
Leased Premises shall be restored to a tenantable condition and, after such
restoration, the rent shall be payable as before such damage.
8.2 Substantial Destruction, In the event the Leased Premises, while
this Lease continues, shall be destroyed by fire or other casualty to the extent
of more than 50% of the replacement cost of the Leased Premises, Landlord shall
have the option to decide whether or not to rebuild. Landlord shall notify
Tenant in writing of its decision to rebuild or not to rebuild within 45 days
after the occurrence of such damage or destruction. Tenant shall also have the
right for a period of 30 days, in such event, to elect to terminate this Lease
and, if Tenant so elects, this Lease shall terminate. In the event that Landlord
shall decide to rebuild, and Tenant shall not have elected to terminate,
Landlord shall forthwith start and complete the repair, rebuilding or
restoration of the Leased Premises as soon as commercially reasonable. The rent
hereunder shall abate to the extent of the percentage of the Leased Premises
which is untenantable from the occurrence of such damage until said repair,
rebuilding or restoration has been completed. After such repair, rebuilding or
restoration has been completed, Tenant shall pay rent in accordance with the
terms hereof, from the time the rebuilding is completed. If Landlord shall
decide not to rebuild, or if Tenant shall elect to terminate, then in such event
this Lease shall be cancelled and of no effect, except that Tenant
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shall pay the rent up to the date of the fire or other casualty, and the
Landlord shall release any claim to Tenant's insurance proceeds.
8.3 Destruction of Substantial Portion of the Spring House Facility.
In the event that the Spring House Facility is damaged to the extent of 80% or
more of its replacement cost, Landlord may elect to terminate this Lease upon
written notice to Tenant, such decision to be given if at all within 45 days
after the occurrence of such damage. In the event Landlord does not terminate
this Lease pursuant to this Section 8,3, Landlord shall either: (i) restore such
portion of the Spring House Facility to a condition as similar as is reasonably
possible in design, character and quality to the building which existed before
such destruction or (ii) raze the damaged portion of the Spring House Facility
and put the same in good order by paving or landscaping.
ARTICLE IX
CONDEMNATION OR EMINENT DOMAIN PROCEEDINGS
If the whole of the Leased Premises or if such portion thereof as
may be required for the reasonable use of the Leased Premises by Tenant shall be
taken or condemned by any authority for any public or quasi-public use or
purpose, or if it shall be sold to any such authority under threat of
condemnation, then and in any such event, the term of this Lease shall cease and
terminate from the date when possession shall be required for such use or
purpose. Landlord shall be entitled to all awards for damages with respect to
such taking; provided that Tenant may also make its own claims against the
applicable public authority (but not against Landlord) for taking of any
Tenant's equipment or improvements. If the condemning authority shall refuse to
permit separate claims to be made, then and in that event Landlord shall
prosecute with counsel satisfactory to Tenant the claims of both Landlord and
Tenant (and with Tenant reimbursing Landlord for an equitable portion of such
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counsels' fees), and the proceeds of the award shall be divided between Landlord
and Tenant in such manner as is fair and equitable.
The rent shall be paid up to the date of such taking and any rent paid in
advance shall be apportioned as applicable.
ARTICLE X
SUBLETTING AND ASSIGNMENT
Tenant shall not have the right to assign or sublet the Leased
Premises or any part thereof without the prior written consent of Landlord,
which shall not be unreasonably withheld. Provided however, that upon written
notice to Landlord, Tenant shall have the right to assign or sublet all or any
part of its interest in the Lease to any other affiliate of Tenant. An affiliate
shall mean any subsidiary of Tenant or any entity in which the majority of
ownership interests are owned directly or indirectly by Tenant or any subsidiary
of Tenant. In the event of such assignment or subletting as authorized herein,
Tenant shall also continue to remain liable for its obligations under this
Lease.
ARTICLE XI
DEFAULT BY TENANT
11.1 Events Constituting Default. In the event Tenant shall: (a)
fail to pay the rent or any part thereof for a period of 20 business days after
Landlord shall have given written notice to Tenant of such default; or (b) fail
to reasonably perform any of the terms and conditions of this Lease to be
performed by Tenant for 30 business days after Landlord shall have given to
Tenant written notice of such default and the Tenant fails to commence within
such 30 day period to cure such default and thereafter to prosecute the curing
of such default with due diligence and in good faith; or (c) be adjudicated a
bankrupt or petition for voluntary bankruptcy, or
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have an involuntary bankruptcy proceeding filed against it which is not
dismissed within 60 days after such filing; or (d) be dissolved; then, and in
any of such events, Tenant shall be deemed to have committed an "Event of
Default." Following an Event of Default by Tenant, Landlord may at its option,
upon 15 business days written notice by registered or certified mail of its
intention to do so, terminate this Lease and repossess the Leased Premises,
unless Tenant shall in the meantime remedy such default or proceed promptly to
do so.
11.2 Re-entry by Landlord. If Tenant commits an Event of Default,
and Landlord elects, following the 15 day notice and grace period in Section
11.1, to re-enter, or takes possession pursuant to legal proceedings or
pursuant to any notice provided for by law, Landlord may either terminate this
Lease or make such alterations and repairs as may be necessary in order to relet
the Leased Premises, and relet the Leased Premises or any part thereof for such
term or terms (which may be for a term extending beyond the term of this Lease)
and at such rental or rentals and upon such other terms and conditions as
Landlord in its sole discretion may deem advisable. Upon such reletting, all
rentals received by Landlord from such reletting shall be applied: first, to the
payment of indebtedness other than rent due hereunder from Tenant to Landlord;
second, to the payment of any costs and expenses of such reletting, including
brokerage fees and attorney's fees, and costs of such repairs (but not the costs
of alterations); third, to the payment of rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in payment of future rent
as the same may become due and payable hereunder. If such rentals received from
such reletting during any month be less than those to be paid during the month
by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly.
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No such re-entry or taking possession of the Leased Premises by
Landlord shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless the
termination hereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach. Should
Landlord at any time either seek to enforce a provision of or terminate this
Lease for any breach, in addition to any other remedies it may have, it may
recover from Tenant all damages it may incur by reason of such breach, including
the cost of recovering the Leased Premises, reasonable attorney's fees, and
including the worth at the time of such termination of the excess, if any, of
the amount of rent and charges equivalent to rent reserved in this Lease for the
remainder of the stated term over the then reasonable rental value of the Leased
Premises for the remainder of the stated term, all of which amounts shall be
immediately due and payable from Tenant to Landlord.
ARTICLE XII
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT
12.1 Subordination. Subject to Section 12.2, Tenant shall at all
times, on demand, execute and deliver any and all further instruments that may
be required by any mortgagees or by Landlord for the purpose of subordinating
this Lease to the lien of any mortgages.
12.2 Non-Disturbance and Attornment. The execution by Tenant of any
subordination agreement pursuant to Section 12.1 above shall be expressly
contingent upon the covenant of the mortgagee that should the mortgagee become
the owner of the Total Premises by reason of foreclosure of the mortgage or
otherwise, or if the Total Premises shall be sold as a result of any action or
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proceeding to foreclose the mortgage or by a deed given in lieu of foreclosure,
(i) the Lease shall continue in full force and effect, without necessity for
executing any new lease, as a direct lease between Tenant, as tenant thereunder,
and the then owner of the Total Premises, as landlord thereunder, upon all of
the same terms, covenants and provisions contained in the Lease, and (ii) such
new owner shall be bound to Tenant under all of the terms, covenants and
provisions of this Lease, including any amendments of the Lease whether made
before or after the date of the mortgage, which terms, covenants and provisions
such new owner hereby agrees to assume and perform. Subject to the foregoing,
Tenant hereby agrees such agreement may require Tenant to attorn to such new
owner and to recognize such new owner as Landlord under this Lease provided that
such attornment shall not relieve Landlord of any of its liabilities to Tenant
arising under the Lease prior to such attornment.
12.3 No Existing Mortgage. Landlord represents and warrants that as
of the date hereof, there is no mortgage encumbering the Leased Premises or the
Total Premises.
ARTICLE XIII
EXTENSION AND HOLDING-OVER
13.1 Holding-over. If Tenant remains in the Leased Premises beyond
the expiration of this Lease, or any renewal or extension thereof, without the
written consent of Landlord, such holding-over shall be deemed to create a
month-to-month tenancy on all the terms and conditions contained herein. The
preceding sentence in no way gives Tenant any right to so hold over in the
Premises beyond the specified term of the Lease.
13.2 Option to Extend Term. Provided Tenant has not committed an
Event of Default which has not been cured, Tenant shall have one option to
extend the term of this Lease for a period of 60 additional months (sometimes
referred to as the "Option Term")
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following the expiration of the Initial Term of the Lease as referenced in
Section 1.2 herein. In order to exercise such option, Tenant must provide
Landlord with written notice of exercise of such option at least one year prior
to the expiration of the Initial Term. In the event of such option exercise, the
rental for the Option Term shall be a gross rate of $22.38 per square foot, plus
Tenant's Share of additional taxes and electric charge increases as set forth
below. With respect to real estate taxes, Tenant would pay Tenant's Share of any
increase in real estate taxes pertaining to the Total Premises which is in
excess of 20% above the real estate taxes of $989,404 in effect at the
commencement of the Lease. With respect to electric, Tenant would pay Tenant's
Share of any increase in electric charges for the Spring House Facility in
excess of 20% above the rate per KW hours of $0.0741 in effect at the
commencement of the Lease (i.e. Tenant's Share of the excess, if any, of the
product of the then current rate per KW hours times the then current usage
reduced by the product of 120% times $0.0741 times the then current usage. (For
purposes of this Lease, the rate per KW hour is the sum of the annual billings
from the applicable electric utility with respect to the Spring House Facility
divided by the total KW hours used for the Spring House Facility.) Unless the
parties otherwise agree in writing, all other terms of the Lease other than the
original free rental period and the new rental rates shall be in effect with
respect to the Option Term, provided that Tenant shall have no additional
options to extend.
ARTICLE XIV
SIGNS, WINDOW TREATMENTS AND FLAGPOLES
Tenant shall not place or suffer to be placed or maintained on any
exterior door, wall, or window of the Leased Premises any sign, drape, shade or
window treatment, without first obtaining Landlord's written approval and
consent, which shall not be unreasonably withheld or delayed. Tenant further
agrees to maintain such sign, or other thing as may be approved, in good
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condition and repair at all times. All signs shall have the approval of
municipal authorities, if required. Without limiting the foregoing, Tenant shall
be entitled to erect and maintain during the term of this Lease an identifying
sign at Welsh Road and a sign on the face of the Spring House Facility, as
identified in Schedule A-1 hereto, It is acknowledged that Landlord's signage at
Welsh Road shall be directional only, with further internal signs directing
Landlord's visitors to entrances to the Spring House Facility other than the
Lobby. Tenant shall have exclusive use of the 3 flagpoles situated at the main
entrance of Tenant's Lobby for the purpose of displaying a corporate identifying
flag, and the flags of the United States and the Commonwealth of Pennsylvania
and no other flags. Tenant shall have the right to place a piece of sculpture in
the area outside the Lobby, subject to Landlord's consent, which Landlord shall
not unreasonably withhold or delay. Tenant may locate no more than three small
rooftop antennas or dishes on the roof over the Leased Premises provided Tenant
obtains all necessary permits and approvals (including without limitation
Landlord's consent, which Landlord shall not unreasonably withhold or delay),
such antennas or dishes are not readily visible from the ground and Tenant
repairs any and all damage caused by such antennas or dishes or the placement,
repair or removal of such antennas or dishes.
ARTICLE XV
RESPONSIBILITY OF TENANT AND LANDLORD
Landlord and Tenant shall be responsible for and shall fully
indemnify each other against any claims or causes of action in any way
pertaining to such party's operations in their respective premises, except to
the extent any such claims or causes of action result due to the negligence or
other fault of the other.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
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16.1 Fees and Expenses. If during the term of this Lease, either
party incurs any reasonable expenses, including but not limited to attorneys'
fees, relating to enforcing the provisions of this Lease or pursuing any default
hereunder, provided that party prevails in a legal action or proceeding against
the other party, then the losing party agrees to reimburse the prevailing party
for all such expenses. Notwithstanding any provision of this Lease to the
contrary, "Attorneys' Fees" wherever used in this Lease shall mean only the
reasonable charges for services actually performed and rendered by independent,
outside legal counsel and also reasonably allocated charges of any applicable
in-house counsel actually working on such legal action or proceeding.
16.2 Notices. All notices shall be given by registered or certified
mail, return receipt requested, or overnight delivery service addressed as
follows:
To Landlord:
Ortho-McNeil Pharmaceutical
Division of Ortho Pharmaceutical Corporation
U.S. Route # 202
Raritan, New Jersey 0369-0602
Attention: Vice President Operations
To Tenant:
Advanta Corp.
5 Horsham Business Center
300 Welsh Road
Horsham, PA 19044
Attention: Senior Vice President
Mr. James W. John
With a copy to: Wolf, Block, Schorr
and Solis-Cohen
12th Floor Packard Building
Philadelphia, Pennsylvania 19102
Attention: Bernard Lee, Esq.
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Landlord and Tenant may each designate different notice recipients/addresses
than those referenced above by providing written notice of such changes in
accordance with this Lease. (Tenant's notice address shall be changed to the
Spring House Facility, Welsh and McKean Roads, Spring House, Pennsylvania
19477-0776 when Tenant commences occupancy of the Leased Premises.)
16.3 Partial Invalidity. The invalidity of one or more phrases,
sentences, clauses, sections or articles contained in this Lease shall not
affect the remaining portions hereof.
16.4 Entire Agreement. This Lease contains the entire agreement and
understanding between the parties. There are no oral understandings, terms, or
conditions, and neither party has relied upon any representation, expressed or
implied, not contained herein.
16.5 Amendment. This Lease shall not be amended, modified, altered
or changed in any respect whatsoever except by further agreement, in writing,
duly executed by Landlord and Tenant.
16.6 Successors. This Lease shall bind and inure to the benefit of
Landlord and Tenant and their respective successors and assigns.
16.7 Joint Effort. The preparation of this Lease has been the joint
effort of the parties and the resulting document shall not be construed more
severely against one of the parties than the other.
16.8 Counterparts. This Lease may be executed in two or more
counterparts, and each executed copy shall be deemed an original which shall be
binding upon all the parties hereto.
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16.9 Governing Law. This Lease and the performance thereof shall be
governed, interpreted, construed and regulated by the laws of the Commonwealth
of Pennsylvania.
16.10 Captions. The captions of this Lease are inserted only as a
matter of convenience and for reference, and in no way define, limit or describe
the scope or intent of this Lease.
16.11 Governmental Regulations. Tenant shall, at its sole cost and
expense, comply with all of the requirements of all county, municipal, state,
Federal and other applicable governmental authorities now in force and which may
hereafter be in force pertaining to Tenant's activities in the Leased Premises.
The foregoing is not intended to limit or modify Landlord's obligation to
perform structural repairs and maintenance, as set forth in the Lease, which
obligation shall include any such structural repairs and maintenance required to
comply with the requirements of all Federal, state, county, municipal, and other
applicable authorities and for which Tenant is not otherwise responsible under
the Lease.
16.12 Right of Entry. Subject to any reasonable security
requirements of Tenant after notification of Tenant's authorized representative,
Landlord or its agents shall have the right to enter the Leased Premises at all
reasonable times to examine the same or to make such repairs, alterations or
improvements as may be necessary or desirable. In the event of any bona fide
emergency, Landlord may also take whatever action is reasonable when immediate
entry of the Leased Premises is required.
16.13 Recording. Tenant shall not record this Lease on the Land
Records. However, upon the request of either Landlord or Tenant, the other party
shall join in the execution of a so-called "Notice of Memorandum of Lease" for
the purposes of recordation. Said Notice of Memorandum of Lease shall describe
the parties, the
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Leased Premises, the term of this Lease, and the commencement date hereof, and
shall incorporate this Lease by reference.
16.14 Excuse of Landlord's Performance. Anything in the Lease to the
contrary notwithstanding, providing such cause is not due to the willful act or
neglect of Landlord, Landlord shall not be deemed in default with respect to the
performance of any of the terms, covenants and conditions hereof, if same shall
be due to any strike, lockout, civil commotion, war-like operation, invasion,
rebellion, hostilities, military or usurped power, sabotage, governmental
regulations or controls, inability to obtain any material, or service through
Act of God, or other cause beyond Landlord's control. Landlord shall use its
reasonable best efforts to cure or correct any such failure of performance even
if Landlord shall not be deemed in default.
16.15 Non-waiver. The waiver by Landlord of any breach of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term, covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent. No covenant, term or condition of this Lease (other than payment of rent
which has been accepted as aforesaid) shall be deemed to have been waived by
Landlord unless such waiver be in writing.
16.16 Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated rent, nor shall
any endorsement or statement on any check or any letter accompanying any check
or payment as rent
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be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to its right to recover the balance of such rent.
16.17 Loss and Damage to Tenant's Property. Landlord shall not be
liable for any damage to or theft of property of Tenant or others, which
property is located in the Leased Premises, unless the damage or loss is
attributable to Landlord's employees. Landlord shall not be liable for any
damage caused by other tenants or persons in the Leased Premises, unless the
damage or loss is attributable to Landlord's employees. All property of Tenant
kept or stored on the Leased Premises shall be so kept or stored solely at the
risk of Tenant, unless the damage or loss is attributable to Landlord's
employees.
16.18 Landlord's and Tenant's Non-Responsibility for Certain
Damages, It is acknowledged that neither Landlord nor Tenant shall be liable for
any punitive, indirect or consequential damages to the other with respect to
this Lease.
16.19 Rules/Regulations. Tenant shall comply with the Landlord's
rules/regulations for the Leased Premises/Spring House Facility as referenced in
Schedules C-C-1 hereto. Landlord represents that it does, and shall continue, to
operate the Total Premises in a first-class manner. If Landlord desires to
lease space in or transfer ownership of, the Total Premises to a non-affiliate
of Landlord, Landlord or the new landlord, as the case may be, shall implement,
or cause to be implemented, rules and regulations consistent with those
applicable to Tenant under this Lease. Landlord's employees shall comply with
the reasonable rules and regulations of Tenant in the use of the Lobby.
16.20 Tenant's Right to Cure Landlord's Default.
Landlord agrees that if Landlord fails to pay any installment of real
estate taxes, or any other liens and encumbrances affecting
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the Leased Premises and to which this Lease may be subordinate when any of the
same become due, or if Landlord fails to make any repairs required of Landlord
by the provisions of this Lease, then and in any such event or events Tenant,
after the continuance of any such failure or default for 30 business days after
notice thereof is given by Tenant to Landlord, may pay, but shall be under no
obligation to pay, said real estate taxes, and other charges, and may cure such
defaults all on behalf of and at the expense of Landlord and do all necessary
work and make all necessary payments in connection therewith (but without any
right of deduction or setoff against any rent payable to Landlord). Landlord
agrees to pay to Tenant forthwith the amount so paid by Tenant, together with
interest thereon at the prime rate of interest publicly announced from time to
time by Chase Manhattan Bank or its successor or the survivor in the event of
bank merger (the "Prime Rate") plus 3%.
ARTICLE XVII
SECURITY DEPOSIT
The Tenant shall deposit with the Landlord the sum of $0 Dollars (no
security deposit) as security for the faithful performance and observance by
Tenant of all the terms, provisions and conditions of this Lease which deposit
shall be payable upon signing of the Lease by the Tenant. Said sum shall not be
considered as advance payment of rent. If Tenant shall fully and faithfully
perform all of the terms, provisions, covenants and conditions of this Lease,
the security deposit shall be returned to Tenant on expiration. In the event of
a sale of the Land and Building, Landlord may deliver Tenant's security deposit
to such purchaser and upon the mailing by such purchaser to Tenant of written
acknowledgment of the receipt of said security deposit, Landlord shall be
discharged from any further liability with respect to the deposit.
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ARTICLE XVIII
LATE CHARGE
The Tenant shall pay to the Landlord as a "late charge" the sum
equivalent to 5% of any amount due the Landlord from the Tenant not received on
or before the 10th day following the date on which said payment is due. Said
late charge shall be paid as additional rent by the Tenant to the Landlord.
ARTICLE XIX
RUBBISH, TPASHAND GARBAGE REMOVAL
The parties hereby agree that the Tenant shall deposit all of its
normal rubbish, trash and garbage from the Leased Premises in such containers as
directed by Landlord. Tenant shall not allow any unreasonable accumulation of
boxes, trash, garbage or waste within the Leased Premises. Tenant shall not
generate any hazardous wastes (as such are defined under any applicable Federal,
state or local rule or regulation) in connection with its operations in the
Leased Premises, except as provided below. Landlord represents and warrants that
the Leased Premises do not contain any such hazardous wastes (as such are
defined under any applicable Federal, state or local rule or regulation) in any
amounts which would violate any applicable laws or regulations. Tenant shall not
generate any hazardous wastes in connection with its operations in the Leased
Premises in excess of amounts routinely used in an office, and which do not
violate any applicable laws or regulations. Tenant shall indemnify Landlord from
any liability or violations under any environmental laws respecting the use by
Tenant of the Leased Premises or arising from the use by Tenant of any other
portion of the Total Premises. Landlord represents and warrants that to
Landlord's best knowledge, the Total Premises are in compliance with all
environmental laws. Landlord shall indemnify Tenant from any liability or
violations under any environmental laws respecting the portion of the Total
Premises other than the use of the Leased
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Premises, except to the extent any liability or violations are caused by Tenant.
ARTICLE XX
REAL ESTATE BROKERAGE
The parties hereby recognize CB Commercial Real Estate Group, Inc.
("CB"), as the real estate broker involved in this transaction and the Landlord
shall pay all real estate brokerage fees due pursuant to its agreement with CB.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
instrument, this _______ day of _____, 1995.
Signed, sealed and delivered
in the presence of:
LANDLORD
Ortho Pharmaceutical Corporation,
acting through its Ortho-McNeil
Pharmaceutical Division
By /s/ [ILLEGIBLE]
- -------------------------------- ---------------------------------------
TENANT
Advanta Corp.
By /s/ Richard A. Greenawalt
- -------------------------------- ---------------------------------------
Richard A. Greenawalt, President & COO
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