LEASE SUMMARY SHEET
1. LANDLORD: PENCADER COURTYARD L.P.
2. TENANT: STRATEGIC DIAGNOSTICS INC.
3. BUILDING: 111 Pencader Drive
Newark, Delaware, 19702
4. PREMISES: As set forth on Exhibit A hereto
5. TERM: TEN (10) years
Commencement Date: Upon Substantial Completion of the Premises/Date of
Issuance of Certificate of Occupancy
6. RENT:
(a) Base Rent: $9.00/square foot, increased by three percent (3%)
annually on a cumulative basis.
NOTE: This Lease Summary Sheet is for the convenience of Landlord and
Tenant and shall not be deemed to be incorporated into or made a
part of the attached Lease for any reason.
TABLE OF CONTENTS
Page
1. The Parties..........................................................1
2. Building, Premises and Common Areas..................................1
3. Leasing Clause: Quiet Enjoyment......................................2
4. Use of Premises......................................................2
5. Term.................................................................2
6. Rent.................................................................4
7. Net Lease............................................................4
8. Subletting Or Assignment.............................................7
9. Inspection And Repair of Premises....................................8
10. Damage To Premises...................................................8
11. Eminent Domain.......................................................9
12. Tenant's Obligations................................................10
13. Landlord's Obligations..............................................12
14. Life Safety.........................................................14
15. Indemnification.....................................................14
16. Tenant Default......................................................15
17. Landlord Default....................................................16
18. Environmental Compliance............................................17
19. Mechanics' Liens....................................................19
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20. Subordination.......................................................19
21. Estoppel Certificate................................................20
22. Holding Over........................................................20
23. Attorney's Fees.....................................................20
24. Signs...............................................................20
25. Other Utilities.....................................................21
26. Broker..............................................................21
27. Notices.............................................................21
28. Miscellaneous.......................................................22
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LEASE
This LEASE AGREEMENT (this "Lease") is made and entered into as of this
29th day of October, 1997, between Landlord and Tenant named below.
1. The Parties
(a) The name and address of Landlord is:
Pencader Courtyard, L.P.
1300 Market Street, Suite 300
Wilmington, DE 19801
Attn: Keith D. Stoltz
(b) The name and address of Tenant is:
Strategic Diagnostics Inc.
128 Sandy Drive
Newark, DE 19713
2. Building, Premises and Common Areas
(a) Landlord, in consideration of the Rent (as hereinafter defined)
reserved and the terms and conditions herein contained on the part of Tenant
to be performed, hereby demises and lets unto the Tenant, and Tenant, subject
to the terms hereof and the performance by the Landlord of its obligations
hereunder, takes and lets from the Landlord, that certain property located at
111 Pencader Drive, Newark, Delaware, 19713 within the section of the
Pencader Corporate Center owned by Landlord (the "Pencader Courtyard
Property") consisting of 28,653 rentable square feet of manufacturing space,
warehouse space, office space, and storage space within the Building (the
"Building") situated thereon and as further described on Exhibit A hereto
(the "Premises").
(b) Tenant, its employees, agents, licensees and invitees shall have
the right to use all areas and equipment, fixtures and furniture within the
Property (as hereinafter defined) including the Building's entrances, access
ways, roads, driveways, sidewalks, exterior ramps, parking facilities and
other similar areas which enable Tenant to obtain full use and enjoyment
of the Premises for all customary purposes (the "Common Areas").
(c) The Building, the Premises, the Common Areas, and the land and other
improvements on the land are hereinafter collectively referred to as the
"Property."
(d) Landlord represents and warrants that, immediately after the
Initial Landlord Improvements are Substantially Completion (as such terms are
defined in Section 13 hereof) and prior to occupancy by Tenant, the Property
shall be in compliance with all applicable
laws, rules and regulations, including, without limitation, all Environmental
Laws (as defined in Section 18 hereof) and the Americans with Disabilities
Act for 1990, as amended.
(e) Landlord represents and warrants that it is, as of the date hereof,
and will continue at all times during the Term (as defined in Section 5
hereof) to be, in compliance with respect to any and all of its obligations
and duties, as an "owner" (as defined in the Declaration of Restrictions) or
otherwise, provided for in that certain Pencader Corporate Center Declaration
of Restrictions dated February 13, 1997 by and between Howard P. Wilson (as
Granter), EHM Pencader I Limited Partnership. New Castle Country Economic
Development Corporation and Karen Peterson (President of County Council. New
Castle Country) (the Declaration of Restrictions"). Contemporaneous with the
execution of this Lease, Landlord shall provide to Tenant a copy of the
Declaration of Restrictions.
3. Leasing Clause: Quiet Enjoyment Landlord represents that (i) it is the
fee simple owner of the Property, (ii) there are no encumbrances, liens,
options to purchase and/or mortgage existing with respect to the Property,
other than that certain First Mortgage and Construction Loan with First Trust
Bank in effect as of the date of execution of this Lease: and (iii) it has
full right and authority to make this Lease. Landlord hereby leases the
Premises to Tenant and Tenant hereby accepts the same from Landlord in
accordance with the provisions of the Lease. Landlord covenants that,
provided that Tenant is not in default beyond applicable notice and cure
periods under this Lease at the time of any exercise of an option. Tenant
shall have peaceful and quiet enjoyment of the Premises during the Term (as
defined below) of this Lease.
4. Use of Premises. Tenant may use and occupy the Premises for
manufacturing, packaging, production, sales, marketing, research,
warehousing, general commercial office and storage purposes and uses
incidental thereto.
5. Term. The term of this Lease (the "Term") shall begin on the date the
Initial Landlord Improvements are Substantially Complete or such other time
as mutually agreed in writing between Landlord and Tenant (the "Commencement
Date") and shall end on that date which is the last day of the one hundred
twentieth (120th) month following the first day of the month immediately
following the Commencement Date (the "Expiration Date"), unless sooner
terminated in accordance with the terms and conditions contained this lease.
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6. Rent.
(a) Base Rent - The Base Rent (defined below) shall be payable by
Tenant to Landlord in advance commencing on the Commencement Date, and
thereafter, on the first day of each month during the Term, in lawful money
of the United States, payable in monthly installments at an initial rate of
Nine Dollars ($9.00) per rentable square foot (the "Base Rent"), such rate to
increase by three percent (3%) annually on a cumulative basis, as set forth
in this Section 6 (a) below. In the event that the Commencement Date occurs
on a day other than the first day of a calendar month. Tenant shall pay to
Landlord a pro rate portion of the monthly installment of Base Rent for such
partial month, computed at the annual Base Rent of $9.00 per rentable square
foot. Tenant shall pay Rent promptly when due without abatement, deduction or
set-off except as specifically stated in this Lease. If Tenant fails to pay
monthly Rent within ten (10) days after receipt from Landlord of written
notice that Landlord has not received such monthly Rent as due. Tenant shall
pay to Landlord a Late Fee (a "Late Fee" equal to five percent (5%) of the
then applicable Rent in addition to the Rent then due for such month.
MONTHS
ANNUALIZED RENT
MONTHLY RENT
RATE/SQ. FT
1-12
$257.877
$21,490
$9.00
13-24
$256.613
$22.134
$9.27
25-36
$273.636
$22.805
$9.55
37-48
$281.946
$23,495
$9.84
49-60
$290,541
$24,212
$10.14
61-72
$299,137
$24,928
$10.44
73-84
$308,020
$25,668
$10.75
85-96
$317,189
$26,432
$11.07
97-108
$326.644
$27,221
$11.40
109-120
$336,386
$28,032
$11.74
(B) Additional Rent - In addition to the Base Rent (and exclusive
therefore) the sums of money provided for in Section 7 of this Agreement
(the "Additional Rent") shall be payable by Tenant to Landlord in accordance
with the term and conditions set forth therin. Whenever under the terns of
this Lease any sum of money is required to be paid by Tenant in addition to
the Base Rent herein reserved, and said additional sum is not designated as
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"Additional Rent", then if not paid when due, said sum shall nevertheless be
deemed Additional Rent and be collectible as such with any installment of
Base Rent thereafter falling due hereunder, but nothing herein contained
shall be deemed to suspend or delay the payment of any such sum at the time
the same became due and payable hereunder, or limit any other remedy of
Landlord.
(c) All payments of Base Rent and Additional Rent shall be paid when
due, without demand, at Stoltz Management Company, 1303 Delaware Avenue, at
Suite 1505, Wilmington, Delaware 19806, Attn: Accounting Department, or at such
other place as Landlord may from time to time direct by notice to Tenant. All
checks shall be made payable to the order of Landlord.
7. Net Lease.
(a) For the purpose of this Lease:
(i) Real Estate Taxes shall mean all taxes, assessments, levies and
other real estate charges (including Delaware lease and use taxes), which are
assessed, levied or charged upon the Property by the federal, state, county
or municipality during any calendar year including any which have been
finally determined by legal proceedings or otherwise to be legally payable,
less any abatement received by Landlord or any affiliate of Landlord. Real
Estate Taxes shall not include: (A) any interest or penalties not caused by
Tenant's actions; or (B) any capital levy, estate, succession, inheritance,
transfer, sales, use or franchise taxes, or any income, profits, or revenue
tax, assessment or charge imposed upon the rent received as such by the
Landlord under this Lease. If at any time during the Term, the method of
taxation prevailing on the date hereof shall be altered, such additional or
substitute tax, assessment, levy or imposition shall be deemed to include
within the term "Real Estate Taxes" for the purposes hereof.
(ii) Operation and Maintenance Costs shall mean the total accrual
out-of-pocket costs and expenses to Landlord for the operation and routine
normal maintenance and repair of the Building and Common Areas which are
incurred during any calendar year or portion thereof, in accordance with
generally accepted accounting principles, consistently applied, including
without limitations, the following items:
(A) All utilities consumed by the Common Areas and the external
and/or structural portion of the Building and the servicing and maintenancing
thereof, including, without limitation, gas, water, sewer, electricity, power
and lighting;
(B) All reasonable fees and charges paid to third parties engaged
in or contracted for the repair (including necessary replacements),
maintenance, and
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external security of the Building and Common Areas, including without
limitation, window cleaning, sprinkler system, snow removal and landscaping;
(C) Premiums on all fire and extended coverage (with all risk
coverage) insurance and comprehensive general liability insurance covering
the Building and the Common Areas and Landlord's personal property and
fixtures used in connection therewith;
(D) All repairs (including necessary replacements) and general
maintenance (including with respect to external security) of the Building and
the Common Areas performed by Landlord, its employees and/or agents, provided
that the fees for such repairs and general maintenance shall not exceed the
fees and charges payable to third parties for similar services in an arms
length transaction;
(E) The cost of any reasonably necessary capital improvements to
the Building and Common Areas made after the Commencement Date, either (i)
for the primary purpose of reducing Operation and Maintenance Costs or (ii)
to comply with any requirements mandated by governmental authority under any
governmental law or regulation that was not applicable to the Building and
the Common Areas as of the Commencement Date. The costs of all such permitted
capital improvements shall be amortized over the expected useful life of the
capital improvement (as reasonably determined by Landlord), together with
interest on the unamortized balance at the Prime Rate being charged by
Wilmington Trust Bank, Wilmington, Delaware (or any successor bank); and
(F) The following shall be excluded from the term "Operation and
Maintenance Costs" (i) expenses for repairs or other work occasioned by fire,
windstorm or other insured casualty (excluding any deductible amounts); (ii)
expenses incurred in leasing or procuring new tenants (e.g., for lease
commissions, advertising expenses and expenses of renovating space for new or
existing tenants); (iii) legal expenses in enforcing the terms of any lease;
(iv) interest and amortization payments on any mortgage or mortgages; (v) the
cost of any item, whether purchased or leased, that would be considered a
capital item or improvement under generally accepted accounting principles
(except to the extent permitted by Section 7(a)(ii)(E) above); (vi)
depreciation; (vii) Real Estate Taxes; (viii) advertising and promotional
expenditures; (ix) all items and services for which Tenant reimburses
Landlord or pays third parties; (x) any costs incurred as a result of
environmental matters of any kind which are assignable to Landlord under the
terms and conditions of this Lease; (xi) any costs assigned to Landlord
under the provisions of Sections 13(a) and (b) of this Lease; and (xii) any
charge or fee paid entirely by, or for which Landlord is entirely reimbursed
by, any other tenant occupying the other building within the Pencader
Courtyard Property;
(iii) "Tenant's Percentage" shall be 53.89% which is the ratio that
the rentable square foot area of the Premises (i.e., 28,653 rentable square
feet) bears to the
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total rentable square foot area of office space in the two buildings
(including the Building) located in Pencader Courtyard Property (i.e., 53,168
rentable square feet).
(iv) During each calendar year (or part thereof) commencing on the
Commencement Date, Landlord and Tenant agree that Tenant shall pay monthly,
in advance, as Additional Rent an amount equal to one-twelfth of Tenant's
Percentage of the estimated annual Operation and Maintenance Costs and Real
Estate Taxes for each calendar year. For each calendar year. Landlord shall
make a reasonable estimate of Tenant's Percentage of the Operation and
Maintenance Costs and Real Estate Taxes constituting Additional Rent and
notify Tenant as to such estimate on or about December 15th of the preceding
calendar year. For each calendar year after the first full calendar year
during the term of this Lease, the estimate of Tenant's Percentage of the
Operation and Maintenance Costs and Real Estate Taxes shall not be greater
than the then current actual Operation and Maintenance Costs for such
preceding calendar year, increased by five percent (5%) (the "Estimate
Ceiling"); provided, however, that the Estimate Ceiling shall not apply to
Landlord's estimate of Operation and Maintenance Costs and Real Estate Taxes
hereunder until the Lease year commencing January 1, 1999.
(v) On or about April 1 of each calendar year commencing with
calendar year 1998, Landlord shall submit to Tenant a reasonably detailed
statement, certified by Landlord, setting forth the actual Operation and
Maintenance Costs and Real Estate Taxes for the preceding calendar year and
Tenant's Percentage thereof. Within thirty (30) days after delivery of such
statement to Tenant, Landlord or Tenant, as applicable, shall pay to the
other any difference between Tenant's estimated payments under Section
7(a)(iv) above and Tenant's Percentage of the actual Operation and
Maintenance Costs and Real Estate Taxes. Within ninety (90) days after
receipt of each statement. Tenant shall have the right to audit and contest
Landlord's determination of Operation and Maintenance Costs and/or Real
Estate Taxes and to inspect Landlord's records with respect thereto during
normal hours upon at least ten (10) days advance written notice. If any such
audit shall reveal a discrepancy in Landlord's determination of the Operation
and Maintenance Costs and/or Real Estate Taxes, Landlord and Tenant shall
cooperate in good faith to resolve the discrepancy and mutually agree upon
the amount of the actual Operation and Maintenance Costs and/or Real Estate
Taxes. In the event it is determined that Tenant has been charged more than
its actual Tenants Percentage of Operation and Maintenance Costs and/or Real
Estate Taxes, Landlord shall refund the excess payment to Tenant and if the
amount of the excess payment is more than five percent (5%) of Tenant's
actual Tenant's Percentage of Operation and Maintenance Costs and/or Real
Estate Taxes. Landlord shall reimburse Tenant for the reasonable cost of
Tenant's audit up to a maximum amount of $2,000.00 during the first through
fifth years of the Lease and $2,500.00 during the sixth through tenth years
of the Lease.
(vi) All sums due under this Section 7 shall be appropriately
apportioned and prorated for any portion of a Lease year, so that Tenant
shall not be obligated to pay any Operation and Maintenance Costs or Real
Estate Taxes that accrue either prior to the
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Commencement Date or following the Expiration Date. In the event that this
Lease shall expire at any time other that at the end of a calendar year,
then within thirty (30) days after statements reflecting the actual Operation
and Maintenance Costs and Real Estate Taxes for the year in which such
expiration occurs are submitted by Landlord to Tenant (pro-rated on the basis
of the number of calendar year days included within such partial Lease year
divided by 365 days), either Landlord or Tenant shall pay to the other party
the adjustment sum due. The provisions of this paragraph shall survive the
expiration of this Lease.
(b) All sums, liabilities, obligations and other amounts which
Tenant is required to pay or discharge pursuant to Section 7 of this Lease in
addition to Base Rent, together with any interest, penalty or other sum which
may be added for late payment thereof shall constitute Additional Rent
hereunder. Base Rent and Additional Rent may be referred to collectively as
"Rent". Tenant shall not be entitled to any abatement or reduction (except
as other-wise expressly provided in Section 10 hereof) set-off or deduction
with respect to its obligations to pay Rent hereunder. In the event of any
failure on the part of Tenant to pay or discharge any additional Rent,
Landlord shall have all rights, powers and remedies provided for herein or by
law or equity or otherwise in the case of nonpayment of Base Rent.
8. Subletting or Assignment.
(a) Tenant shall be permitted to (i) assign or otherwise transfer
this Lease, or the Term and estate hereby granted or (ii) sublet the Premises
or any part thereof, or offer or advertise to do so or allow the same to be
used or occupied by anyone other than Tenant only upon receiving the prior
written-consent of Landlord, which consent shall not be unreasonably if
withheld, delayed or conditioned. Tenant specifically acknowledges that by
way of example and without limitation. Landlord may withhold its consent if;
(x) the reputation or financial responsibility of a proposed assignee or
subtenant is unsatisfactory to Landlord in its reasonable discretion; (y)
Landlord determines in its reasonable discretion that the business of the
proposed assignee or subtenant is not consistent with the nature of the
Premises; or (z) Tenant is renting or subletting the Premises or any part
thereof for a rent which exceeds Tenants Base Rent hereunder, unless Tenant
agrees to deliver such excess rent to Landlord as Additional Rend hereunder.
Any violation of the provisions hereinabove set forth shall constitute a
default hereunder and Landlord, after notice and an opportunity to cure
pursuant to Section 16, shall have option to cancel the same and proceed in
accordance with the provisions set forth in this Lease. Any consent by
Landlord to a particular assignment or sublease, shall not constitute consent
or approval of any subsequent assignment or sublease and Landlords written
approval shall be required in all instances. In the event that Landlord
consents to any assignment or sublease, Landlord shall not be deemed to have
released Tenant from its obligation hereunder unless so stated in a separate
agreement between Landlord and Tenant.
(i) Landlord shall have fifteen (15) days from the date on which Tenant
has submitted to Landlord the information set forth in this Section 8, to
notify
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Tenant in writing of Landlord's rejection or consent to the proposed
subtenant or assignee, Landlord shall specify the reasons for rejection in
any notice of rejection. In the even Landlord reasonably claims that any of
the above information is incomplete, Landlord shall immediately notify
Tenant, in writing, of such claim, and the fifteen (15) day period shall be
extended by the number of days of Tenant's delay in delivering reasonably
complete information to Landlord in accordance with this Section 8.
Landlord's consent shall be conclusively deemed given after the fifteen (150
day period, unless refused or delayed as described above.
(ii) Notwithstanding the provisions of this Section 8, Tenant shall
have the right to assign or transfer any interest in this Lease to a
subsidiary, parent or an affiliate of Tenant or a successor to Tenant,
including, without limitation, by way of merger, consolidation, corporate
reorganization or the purchaser of all or substantially all of Tenant's
assets (so long as the surviving entity after such purchase has a financial
net worth greater than or equal to that of Tenant), each without Landlord's
consent.
(iii) Notwithstanding anything to the contrary in this Section 8,
any transfer, sale, pledge or other disposition and/or power to vote the
outstanding shares of corporate stock of Tenant shall not be deemed an
assignment.
(b) Upon written notice delivered to Landlord by Tenant of Tenant's
desire to sublet the Premises Landlord agrees to use all reasonable best
efforts to assist Tenant in obtaining a sublettor suitable to Landlord in
accordance with this Section 8.
(c) Estoppels and Landlord Waivers. Landlord shall, at Tenant's
reasonable request: (i) provide Tenant with an estoppel certificate stating
whether Landlord knows of any defaults under this Lease at the time of any
proposed subletting or assignment; and (ii) provide to any lender to Tenant
an agreement in recordable form stating that Landlord waives any and all
rights to Tenant's fixtures, inventory, equipment, furniture or other
personal property located at the Property.
9. Inspection and Repair of Premises. Landlord may inspect and repair
the Premises at reasonable times and after reasonable prior notice to Tenant
(except prior notice shall not be required in emergencies). In making any
inspection or performing maintenance or repairs to, or construction in, or
around the Premises, Landlord shall use all commercially reasonable efforts
to protect Tenant's property and personnel from loss and injury and to avoid
interfering with the conduct of Tenant's business.
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10. Damage to Premises.
(a) If the Property or any portion of the Property to which Landlord
is required to make repairs, maintenance or replacements pursuant to the
terms hereof is damaged by fire or other casualty, then, except as provided
below, the damage shall be promptly repaired by and at the expense of
Landlord. Until such repairs and restoration are completed, the Base Rent,
Real Estate Taxes and Maintenance and Operating Expenses shall be equitably
abated to the extent that damage to the Premises and/or other portions of the
Property materially adversely interferes with the conduct of Tenant's
business. If such damage to the Property or any portion thereof, for which
Landlord is required to make repairs, maintenance or replacements, shall
materially adversely interfere with the conduct of Tenant's business and the
parties agree that such damage shall not be susceptible of complete repair
and restoration within one hundred twenty (120) days after the occurrence of
such casualty, then Landlord or Tenant may, by written notice to the other,
terminate this Lease as of the date of occurrence of such damage, provided
such notice is given within forty-five (45) days after the date of such
casualty. If such damage shall be the responsibility of Landlord and can be
repaired within one hundred twenty days (120) days and Landlord fails to
repair or restore such damage within such period, then Tenant may terminate
this Lease by thirty (30) days' prior written notice to Landlord, in addition
to all other remedies Tenant may have under this Lease at law or in equity.
The parties agree to cooperate with each other to process the release of the
Insurance proceeds for the aforementioned repair purposes. In the event of
the termination of this Lease pursuant to this Section 10, Base Rent, Real
Estate Taxes and Maintenance and Operating Expenses shall be prorated as of
the date of such termination.
(b) Landlord and Tenant to each hereby release and discharge the other
party and any officer, agent, employee or representative of such party from
any claim, suit, action, and liability for any and all loss of, or damage
to, any of its property located within or upon or constituting a part of the
Premises (including the Building) or the Property, to the extent that such
loss or damage is recovered or should have been recovered under an insurance
policy or policies required by the terms of this Lease. Each party agrees to
require its insurers to issue policies containing such provisions and a
waiver of the right subrogation. Landlord and Tenant shall provide notice to
the other party to the extent either of their respective policies do not
contain such a required waiver of claims and right of subrogation.
11. Eminent Domain. If the property or any portion thereof shall be taken
under the power of eminent domain or conveyed in lieu thereof, and the taking
of which materially adversely interferes with the conduct of Tenant's
business, then Tenant shall have the right to terminate this Lease as of the
date of vesting of title of such taking, an in which event Base Rent, Real
Estate Taxes and Maintenance and Operating Expenses shall be pro-rated as of
such date. If Tenant does not terminate this Lease, Landlord shall proceed
with due diligence to make all repairs necessary to restore the Property to
as near its former condition as circumstances
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will permit and the Lease shall remain in full force and effect, except that,
effective on the date of taking or conveyance, the Premises shall be reduced
by the portion of the Premises so taken or conveyed, and the Base Rent, Real
Estate Taxes and Maintenance and Operating Expenses shall be proportionately
reduced by the portion of the Premises taken or conveyed.
12. Tenant's Obligations.
(a) Tenant shall maintain, at its sole cost and expense, with an
insurer(s) reasonably acceptable to Landlord and rated "A" or better by
Best's Insurance Guide:
(i) Standard Commercial General Liability Insurance. The limits
of liability of such insurance shall be an amount which is not less than One
Million Dollars ($1,000,000) per occurrence an account of bodily injuries to
or death of one person and One million Dollars ($1,000,000) per occurrence
for property damage liability or Two Million Dollars ($2,000,000) combined
single limit for personal injury and property damage. Such insurance shall
cover Tenant against any claim directly out of liability for bodily injury and
death and personal injury and property damage occurring in an about the
Premises and otherwise resulting from any acts and operations of Tenant, its
agents and employees. The total amount of a deductible or otherwise
self-insured retention with respect to such coverage shall not be more than
$10,000 per occurrence. Such insurance shall include inter alia: (i)
"occurrence" rather than "claims made" policy forms unless such "occurrence"
policy forms are not available; (ii) any and all liability assumed by the
Tenant under the terms of this Lease, to the extent such as insurance is
available; (iii) the Landlord, as an additional insured, with respect to (A)
the Premises, and (B) all operations of the Tenant, and (C) any property and
areas and facilities of the Landlord used by the Tenant, its employees,
invitees, customers and guests; and (iv) severability of insured and cross
liability so the protection of such insurance shall be afforded to the
Landlord in the same manner as if a separate policy had been issued to each
of the insured parties; and
(ii) Excess Liability Insurance in Umbrella Form, the limits of
which shall be an amount which is not less than Three Million Dollars
($3,000,000) per occurrence or in the aggregate; and
(iii) "all risk" property insurance on Tenant's personal
property, including inventory, trade fixtures, floor coverings, furniture or
other property. This insurance shall include fire and extended coverage
perils.
(b) Tenant shall be responsible, as its sole cost, for the provision,
maintenance, and repair (including replacement if reasonably necessary) of
the following:
(i) Utilities, including without limitation, electricity, sewage
and water, with respect to the interior of the Building. Such Tenant
responsibilities expressly do
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not include maintenance and repair with respect to the structural electrical,
plumbing and sewage systems of the Premises:
(ii) Janitorial and cleaning services with respect to the
interior of the Building:
(iii) General maintenance and repair to the interior of the
Building, including, without limitation, light fixtures, interior walls,
ceilings, floors, doors, and windows. Such Tenant responsibilities expressly
do not include maintenance and repair with respect to the structural aspects
of the Building, any external loading docks and any elevators; and
(iv) Heating, ventilation and air conditioning ("HVAC") units and
compressors.
(c) Tenant shall comply with all laws pertaining to Tenant's specific
use of the Premises, provided Tenant shall not be required to make any
alterations or improvements of a capital nature to the Premises or the
Building unless due to its specific use thereof. Tenant shall, at its own
expense, observe and comply with all applicable Environmental Laws (hereafter
defined) and all regulations or standards as are promulgated thereunder with
respect to its particular use of the Premises and Tenant shall correct any
violation thereof arising from its specific use of the Premises from and
after the Commencement Date through the Expiration Date. This provision
shall survive the expiration or termination of this Lease.
(d) During the Term, Tenant may make improvements, alterations or
additions to the interior of the Premises (including the interior of the
Building) provided such work is done in a workmanlike manner with materials
and finishes at least comparable to those then existing in the Premises, and
provided that any improvements, alterations and additions effecting the
external structure of the Building, including without limitation, the roof,
exterior walls, bearing walls, support beams, foundation, columns and lateral
support, shall be made only with the prior written consent of Landlord, which
consent shall not be unreasonable withheld, conditioned or delayed. Any of
the foregoing Tenant improvements shall remain the sole property of Tenant
notwithstanding that such improvements may be affixed to the Building and
Tenant shall remove such improvements at the expiration of the Term hereof
and shall, at Tenant's cost, repair any damage such removal causes, and
restore the Premises without restoration of pre-existing equipment, to the
condition which existed prior to the installation of Tenant's alterations,
improvements, or additions. If Tenant makes any improvements, alterations
or additions, Tenant agrees to comply with all insurance requirements and all
laws, ordinances, rules and regulations of all governmental authorities,
provided that Landlord shall cooperate with Tenant in securing any necessary
permits, the cost for such permits to be borne by Tenant.
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(e) Tenant may install and maintain its own security system for the
Premises, which may include establishing limited access areas within the
Premises that are reasonably acceptable to Landlord. At its sole option,
Tenant may remove any security, telephone or computer system or any portion
thereof (the "Systems") installed on behalf of Tenant, provided Tenant
repairs any damage caused by such removal. In no event, however, shall
Tenant be required to remove any portion of the Systems (including without
limitations, cabling) installed in any wall, floor, partition, ceiling or
under any floor covering.
(f) At or before the expiration or earlier termination of this Lease.
Tenant shall surrender the Premises in substantially as good condition as
when entered, except for loss or damages resulting from casualty,
condemnation, acts of God, ordinary wear and tear and any improvements,
alterations or additions made to the Premises.
(i) Tenant at is expense, shall remove from the Premises all of
Tenant's property (except with respect to the "interior block walls" as
described in Section 12(f)(ii)below and such items as Landlord and Tenant
shall have expressly agreed, in writing, to remain, which property shall
become the property of the Landlord), and Tenant shall repair any damage to
the Premises resulting from any installation and/or removal of Tenant's
property. Any other items of Tenant's property (except with respect to the
"interior block walls" as described in Section 12(f)(ii) below) that shall
remain in the Premises after the expiration of the Lease, or following any
earlier termination date, may, at the option of Landlord, be deemed to have
been abandoned, and in such case, such items may be retained by Landlord as
its property or be disposed of by Landlord, without accountability, in such
manner as Landlord shall determine at Tenant's expense.
(ii) With respect to the "interior block walls" constructed as
part of the Initial Landlord Improvements (as defined in Section 13(a)),
Tenant shall not remove such interior block walls, unless, within thirty (30)
days after the expiration or earlier termination of this Lease, Landlord
requests, in writing, that Tenant remove the interior block walls from the
Premises, such removal (and repair of any damage caused thereby) to be
completed at the sole cost and expense of Tenant.
13. Landlord's Obligations
(a) Landlord shall have sixty (60) days from the date of execution of
this Lease (the "Substantial Completion Period"), at Landlord's sole cost and
expense, to substantially complete all construction work and improvements
specified on the design and construction plans (as approved by Tenant),
including, without limitation, improvements with respect to the interior
structure (including the interior block walls), systems, and facilities within
the Building as set forth on Exhibit A hereto (the "Initial Landlord
Improvements"). For the purposes of this Lease, the Premises shall be
"Substantially Complete" as of the date when (x) the Initial Landlord
Improvements have been substantially completed in conformity with the
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specifications outlined therein in all aspects necessary to permit Tenant to
occupy and utilize the Premises for the uses permitted by this Lease, subject
to minor punch list items and (y) Landlord is able to obtain from the
appropriate governmental office in the County of New Castle, State of
Delaware, a Certificate of Occupancy with respect to the Premises (and a copy
of such Certificate of Occupancy is furnished to Tenant), or if Landlord is
unable to obtain such a Certificate of Occupancy (but New Castle County has
not refused to issue the same) due to the County's administrative delay in
its final inspection and issuance process. Landlord's architect certifies to
Tenant that the Premises has been completed in accordance with the applicable
laws and that Landlord is entitled to the issuance of a Certificate of
Occupancy regarding the Premises and that such Certificate of Occupancy
should be issued in due course. In the event that Landlord does not
Substantially Complete the Premises within the Substantial Completion Period.
Tenant's obligation hereunder with respect to the payment to Landlord of
Rent when due shall be abated for one (1) calendar day for every one (1)
calendar day beyond the Substantial Completion Period for which Landlord
fails to Substantially Complete the Premises, up to a maximum of sixty (60)
days beyond the Substantial Completion Period (i.e. one hundred twenty (120)
calendar days from the date of execution of this Lease). In the event that
Landlord doe not Substantially Complete the Premises within one hundred
twenty (120) calendar days of the date of execution of this Lease, Tenant
shall have the right to terminate this Lease. For the avoidance of doubt,
Landlord's obligations under this Section 13(a) shall not be subject to Force
Majeure provisions set forth in Section 17(b) hereunder.
(b) During the term of this Lease, Landlord, without cost to Tenant,
shall maintain, repair and replace, as necessary, and keep in good order and
in safe and operational condition, all structural portions of the Property,
and all service systems for the same, including, without limitation:
(i) the structural plumbing, Building electrical and mechanical
lines and equipment associated therewith, all of which either are located in
or serve the Building, the Premises or Common Areas:
(ii) the exterior structure of the Building including the roof,
exterior walls, bearing walls, support beams, foundation, columns, and
lateral support; and
(c) Without limiting subsections (a) and (b) above, Landlord shall
provide the following services and facilities, such cost to be borne by Tenant
as Additional Rent in accordance with the terms of this Lease:
(i) All utilities necessary for the Common Areas and external
structural portion of the Building, including, without limitation, gas,
water, sewer, electricity, power and lighting;
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(ii) General cleaning and maintenance of the external portion of
the Building and the Common Areas, including, without limitation, parking
facilities, snow removal services, landscaping and garbage/trash removal
(except any environmentally sensitive or hazardous medical garbage/trash); and
(iii) the exterior capital improvements to the Common Areas,
including curbs, driveways, parking areas, sidewalks, lighting, and ditches.
(d) Tenants Premises and leasehold interests hereunder shall include,
for the benefit of Tenant, its employees and agents, a total of seventy (70)
parking spaces within the Property, such parking spaces to be located in
reasonably close proximity to the Building. Upon Tenant's reasonable
request, Landlord shall designate ten (10) of such parking spaces (to be
located in the ten spaces closest to the main entrance of the Building,
notwithstanding any parking spaces which under applicable law must be
reserved for handicapped drivers, emergency, fire or other similar safety
purposes), by way of appropriate and conspicuous signs or markings, for the
benefit of Tenant, for the use of Tenant's invitees, licenses and/or visitors
(the "Visitors' Parking Spaces"). Tenant understands and acknowledges that,
after the designation of the Visitors Parking Spaces. Tenant solely shall be
responsible for any necessary policing or enforcement with respect thereto.
14. Life Safety. Landlord, without cost to Tenant, shall install and
maintain within the Property any required sprinkler systems, fire alarms,
emergency lighting, and other related life safety equipment, and exits from
the Premises to comply with all requirements of federal, state, county and
city governments and all other governmental authorities having or claiming
jurisdiction with respect to the occupancy of the Premises.
15. Indemnification.
(a) Tenant shall defend and indemnify Landlord and hold Landlord
harmless from and against any and all losses, claims, liability, expenses and
damages which, either directly or indirectly, in whole or in part, arise out
of or result from: (i) the negligence or willful misconduct of Tenant, its
agents, contractors or employees; (ii) judgements, citations, fines or other
penalties rendered or assessed against Landlord as a result of Tenant's
failure to comply with all federal, state and local laws, safety and health
regulations relating to Tenant's specific use of the Premises, provided that
Landlord agrees to give Tenant prompt notice of any such violation asserted
by any government agency; and (iii) the breach of any provision of this lease
by Tenant, its agents, contractors or employees.
(b) Landlord shall defend and indemnify Tenant and hold Tenant
harmless from and against any and all losses, claims, liability, expenses and
damages which, either directly or indirectly, in whole or in part, arise out
of or result from (i) the negligence or willful misconduct of Landlord, its
agents, contractors or employees; (ii) judgements, citations,
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fines or other penalties rendered or assessed against Tenant as a result of
Landlord's failure to comply with all federal, state and local laws, safety
and health regulations relating to any portion of the Building or the Common
Areas which Landlord has assumed the duty to maintain pursuant to this Lease,
provided that Tenant agrees to give Landlord prompt notice of any such
violation asserted by any government agency; (iii) judgements, citations,
fines or other penalties rendered or assessed against Tenant, as well as any
liability imposed upon Tenant, as a result of: (A) the presence of any
Hazardous Materials (as defined herein)on, in or beneath the Premises at or
before the Commencement Date including, but not limited to polychlorinated
biphenyls ("PCBs"), asbestos and any material currently or formerly contained
in an underground storage tank ("UST"); (B) the subsequent placement of
Hazardous Materials on, in or beneath the Premises by Landlord; (C) the
presence of any USTs at the Premises; (D) the (past or future) violation of,
or noncompliance with any Environmental Law (as defined herein) by Landlord;
or (E) any other environmental condition with respect to the Premises not
caused by Tenant; and (iv) the breach of any provision of this Lease by
Landlord, its agents, contractors or employees.
(c) Nothing in this Section 15 is intended to require indemnification
for any property claim for which insurance is required to be maintained under
the terms of this Lease. The rights and obligations of Landlord and Tenant
under this Section 15 shall survive the expiration or earlier termination of
this Lease.
16. Tenant Default.
(a) Event of Default. Tenant shall not be deemed to be in default
hereunder unless an "Event of Default," as hereinafter specified, has
occurred. The following shall constitute Events of Default by Tenant
hereunder:
(i) Failure to pay the Base Rent or Additional Rent within ten
(10) days after receipt of Landlord's written notice of such deficiency (a
"Financial Default"); provided, however, that Landlord shall not avail itself
of any of the remedies set forth in Section 16(b) (below) on account of
Financial Default for at least twenty (20) days from the date of such
Financial Default (i.e. thirty (30) days from Tenant's receipt of written
notice from Landlord that Tenant has failed to timely pay the applicable Base
Rent or Additional Rent);
(ii) Failure to comply with or perform any of the other material
terms, covenants, conditions or agreements to be complied with or performed
by Tenant and continuance of such failure for thirty (30) days after written
notice from Landlord to Tenant, or, if the failure is of such a character as
cannot reasonably be cured within thirty (30) days, failure to initiate
within said thirty (30) day period such action as reasonably can be taken
toward curing the same and/or failure to prosecute such action as promptly as
is reasonably practicable after said action is initiated;
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(iii) Tenant is adjudicated a bankrupt in a proceeding against it
or a receiver for Tenant or for all or a substantial part of its property is
appointed, or a court order is entered approving a petition seeking
reorganization or an arrangement under the Bankruptcy Code, and any such
adjudication, appointment or order is not vacated, set aside or otherwise
terminated to stayed within sixty (60) days from the date of its entry.
(b) Landlord's Remedies. If an Event of Default shall have occurred
and shall have continued after any applicable cure period provided herein,
then or at any time thereafter, Landlord may at its option; (1) terminate this
Lease by notice to Tenant, recover possession of the Premises, and recover
from Tenant the present value of the difference, if any, between the Base
Rent and Additional Rent owed by Tenant for the remaining portion of the Term
and the fair rental value of the Premises for the period; provided, however,
that if such Event of Default was a result of a Financial Default, Landlord
may terminate this Lease by notice to Tenant, recover possession of the
Premises, and recover from Tenant the present value of the Base Rent and
Additional Rent owed by Tenant for the remaining portion of the Term (such
present value calculation to exclude any Late Fees); or (2) without
terminating this Lease, recover possession of the Premises and relet the
Premises or any part of the Premises, as the agent of the Tenant, and Tenant
shall pay the Landlord the present value of the difference, if any, between
the Base Rent and Additional Rent owed by Tenant for the remaining portion of
the Lease term and the amount received or to be received under such reletting
for such period. Landlord shall use best efforts to mitigate its damages as
a result of an Event of Default by Tenant.
17. Landlord Default
(a) If Landlord shall:
(i) file or have filed against it a petition or case under any
section or chapter of the United States Bankruptcy Code, as amended, or under
any similar law or statute of the United States or any state and such
petition or case is not discharged within sixty (60) days; or
(ii) fail to fulfill any covenant or provision of this Lease on
its part to be performed and fail to remedy such failure within thirty (30)
days after Tenant shall have given Landlord written notice of such failure,
then the same shall be an event of default and Tenant shall have all rights,
powers and remedies available at law or equity; provided, however that if
Landlord continues to fail to fulfill a covenant or provision of this Lease
on its part to be performed without remedy for a period of ninety (90) days
and such failure materially adversely affects Tenant's business, Tenant may
terminate this Lease.
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(b) Force Majeure. The obligations of Tenant hereunder shall not be
affected, impaired or excused and Landlord shall have no liability whatsoever
to Tenant, with respect to any act, event or circumstances arising out of:
(i) Landlord's failure to fulfill or delay in fulfilling any of
its obligations under this Lease by reason of strike or other labor trouble
(with respect to Landlord only), governmental preemption of properties or
other controls in connection with a national or other public emergency or
shortages of fuel, supplies, labor or materials, beyond Landlord's reasonable
control, acts of God, governmental delays or delays caused by Tenant
(collectively, "Force Majuere"); provided, however, that Section 17(b) shall
not apply to or relieve Landlord of Landlord's obligation to Substantially
Complete the Initial Landlord Improvements within the Substantial Completion
Period as set forth in Section 13(a) of this Lease; or
(ii) Any failure or defect in the supply, quantity or character
of service furnished to the Premises, or by reason of any requirement, act
or omission of any public utility or others serving the Premises, beyond the
Landlord's reasonable control.
18. Environmental Compliance.
(a) Landlord represents that, to the best of Landlord's knowledge
and belief, the Property and its existing uses comply with, and Landlord has
not received any notice or communication of any violation or non-compliance
with, is not in violation of, and has not violated, in connection with he
ownership, use, maintenance or operation of the Property and the conduct of
the business related thereto, any applicable federal, state, county, regional
or local statutes, laws, regulations, rules, ordinances, codes, standards,
orders, licenses, permits and authorizations of any governmental authorities
relating to environmental, health or safety matters (including, without
limitation, Hazardous Materials, as defined in Section 18(b) below)
(collectively, "Environmental Laws"). Landlord shall, at its own expense,
promptly observe and comply with all present and future Environmental Laws,
as amended from time to time, and all regulations or standards as are or may
be promulgated thereunder.
(b) Without limited the generality of Section 18(a), Landlord
represents that, to the best of Landlord's knowledge and belief, Landlord,
its agents, contractors and employees (i) have operated the Property and have
at all times received, handled, used, stored, treated, transported and
disposed of any chemical, material or substance, exposure to which (by humans
or the environment) is prohibited, limited or regulated by an Environmental
Law or federal, state, county, regional or local authority or which even if
not so prohibited, limited or regulated, poses a hazard to the health and
safety of the occupants of the Property or the occupants of the area near the
Property (collectively, "Hazardous Materials") in strict compliance with all
Environmental Laws, and (ii) have removed (or will remove prior to the
Commencement Date) from the Property all Hazardous Materials.
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(c) Landlord represents that, to the best of Landlord's knowledge and
belief, there is no fact pertaining to the physical condition of the Property
or the area surrounding the Property which (i) materially and adversely
affects or materially and adversely will affect the Property, or the use,
enjoyment or value thereof, or Landlord's ability to perform the obligations
contained in this Lease, and (ii) which Landlord has not disclosed to Tenant
in writing prior to the date of this Lease.
(d) Landlord represents that, to the best of Landlord's knowledge and
belief, it has received no notices of any violation or claimed violation of
any of the matters referred to in Sections 14, 19(a) and 19(b) or of any
pending or contemplated investigation, lawsuit or other action relating
thereto, nor are there any unresolved or outstanding investigations,
lawsuits, enforcement actions, administrative orders, or other actions.
(e) Landlord shall provide Tenant with copies of all communications,
permits or agreements with any governmental authority or agency (federal,
state or local) or any private entity relating in any way to the presence,
release, threat of release, placement on or in the Premises or any portion
thereof, or the generation, transportation, storage, treatment, or disposal
at the Premises of any Hazardous Materials.
(f) If Tenant generates, transports, stores, or disposes of any
Hazardous Materials, or in any portion of the Property or Building:
(i) Tenant shall, at its own expense, observe and comply in all
material respects with applicable Environmental Laws, and all regulations or
standards as are or may be promulgated thereunder with respect to Tenant's
activities on the Property;
(ii) Tenant shall provide Landlord with copies of all
communications, permits or agreements with any governmental authority or
agency (federal, state or local) or any private entity relating in any way to
the presence, release, threat of release, placement on or in the Premises or
any portion thereof, or the generation, transportation, storage, treatment,
or disposal at the Premises of any Hazardous Materials; and
(iii) Landlord shall have the right, when accompanied by Tenant's
representative (except in cases of emergency), to enter the Premises and/or
conduct appropriate tests, at Landlord's own expense, for the purposes of
ascertaining that Tenant complies with all applicable laws, rules or permits
relating in any way to the presence of Hazardous Materials on the Land, the
Premises, or any portion thereof. Landlord shall provide to Tenant a copy of
the results of any such tests or investigations.
(g) If the presence, release, threat of release, placement on or in
the land, the Premises or any portion thereof, or the generation,
transportation, storage, treatment or
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disposal at the land, the Building, or any portion thereof of any Hazardous
Materials solely due to Tenant's actions:
(i) gives rise to liability under RCRA, CERCLA, other
Environmental Laws or any common law theory based on nuisance or strict
liability.
(ii) impacts or causes an effect to public health which is
prohibited by or in violation of Environmental Laws.
Tenant shall promptly take, at Tenant's sole cost and expense, any and all
remedial and removal action required by applicable Environmental Laws.
Tenant's obligations under this Section 18(g)(ii) shall survive the
termination of the Lease for any reason.
(h) The representations contained in this Section 19 shall survive
the expiration or earlier termination of this Lease.
19. Mechanics Liens. Prior to Tenant performing any construction or
other work in or about the Premises for which a lien could be filed against
the Premises or the Building (a 'Mechanics' Lien'), Tenant shall have its
contractor execute a waiver of such Mechanics' Lien, satisfactory to
Landlord, and provide Landlord with the original copy thereof.
Notwithstanding the foregoing, if any Mechanics' Lien or other lien shall be
filed against the Premises or the Building purporting to be for labor or
materials furnished or to be furnished at the request of Tenant, then at its
expense. Tenant shall cause such Mechanics' Lien or other lien to be removed
of record by payment, bond or otherwise, within thirty (30) days after the
filing thereof. If Tenant shall fail to cause such Mechanics' Lien or other
lien to be removed of record within such thirty (30) day period, Landlord may
cause such Mechanics' Lien or other lien to be removed of record by payment,
bond or otherwise, without investigation as to the validity thereof or as to
any offsets or defenses thereto, in which event Tenant shall reimburse
Landlord in the amount paid by Landlord, including expenses, within ten (10)
days after Landlord's billing therefor. Tenant shall indemnify and hold
Landlord harmless from and against any and all claims, costs, damages,
liabilities and expenses (including attorney fees) which may be brought or
imposed against or incurred by Landlord by reason of any such Mechanics' Lien
or other lien or removal of record.
20. Subordination
(a) Subject to the provisions of paragraph (b) below, this Lease shall
be subject and subordinate at all times to the lien of any mortgages now
placed on the Premises or the Building without necessity of any further
instrument or act on the part of the Tenant to effectuate such subordination.
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(b) Landlord covenants and agrees to use its best efforts to obtain
and furnish to Tenant, within six (6) months of Tenant's execution of this
Lease, an agreement ("Non-Disturbance Agreement') executed and acknowledged
from the holder(s) of any mortgage now encumbering the Building or the
Premises ("Existing Holder"), whereby each Existing Holder agrees to not
disturb Tenant in its rights, use and possession of the Premises and Building
under this Lease or to terminate this Lease, except to the extent permitted
to Landlord by the terms of this Lease, notwithstanding the foreclosure or
the enforcement of the mortgage or termination or other enforcement of an
underlying lease or installment purchase agreement. Tenant covenants and
agrees to execute and deliver upon demand the Non-Disturbance Agreement(s).
(c) Tenant further agrees that this Lease shall be subject and
subordinate to the lien of any mortgages hereafter placed upon the Premises
or the Building, provided that the Landlord shall have used its best efforts
to cause the holder thereof to have entered into a Non-Disturbance Agreement
with Tenant as described in paragraph (b) above.
21. Estoppel Certificate. At any time and from time to time and within
ten (10) days after written request by Landlord or Tenant, Landlord or
Tenant, as the case may be, shall execute, acknowledge and deliver to the
other a statement in writing duly executed by Landlord or Tenant, as the case
may be, certifying (i) that this Lease is in full force and effect, without
modification or amendment (or, if there have been any modifications or
amendments, that this Lease is in full force and effect as modified and
amended and setting forth the date of the modifications and amendments), (ii)
that the dates to which annual Base Rent and Additional Rent have been paid,
(iii) that to the knowledge of the certifying party, no default exists under
this Lease or specifying each such default and (iv) as to any other
reasonable and customary request for certification of factual information
concerning this Lease; it being the intention and agreement of Landlord and
Tenant that any such statement by Tenant may be relied upon by a prospective
purchaser or a prospective mortgagee of the Building, or by a prospective
assignee or subtenant of Tenant, or by others, in any matter affecting the
Premises.
22. Holding Over. If Tenant shall hold over after the expiration of the
Term, its tenancy shall be on a month-to-month basis and Tenant shall pay to
Landlord an amount equal to 125% of the then current Base Rent required to be
paid by Tenant under this Lease, applied to the first thirty (30) days Tenant
shall remain in possession after the expiration or sooner termination of this
Lease, and 150% of the then current Base Rent required to be paid by Tenant
under this Lease, applied to the holdover period from and after the 31st day
Tenant shall remain in possession after the expiration or sooner termination
of this Lease. Payments made by Tenant to Landlord under this Section 22
shall not be exclusive of any other rights or remedies afforded to Landlord
in law or equity.
23. Attorney's Fees. In the event of litigation of any dispute or
controversy arising from, in, under or concerning this Lease or any amendment
hereof, including, without
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limiting the generality of the foregoing, any claimed breach or default
hereof or thereof, the prevailing party in such action shall be entitled to
recover from the other party in such action, such sum as the court shall fix
as reasonable attorney's fees incurred by such prevailing party.
24. Signs. Tenant shall not install or affix any signs to the exterior
of the Building or any exterior part of the Property without the prior
written consent of Landlord, which consent shall not unreasonably be
withheld. Tenant acknowledges that, by way of example and without
limitation, Landlord may withhold its consent with respect to a proposed
installation of a sign by Tenant if: (i) such sign or subsequent removal
thereof would cause in Landlord's reasonable determination material damage to
the exterior of the Building or the exterior of the Property; (ii) such sign
violates local zoning or land use laws; or (iii) the color, size, location or
aesthetic character of such sign is significantly inconsistent with that of
the Property.
25. Other Utilities. At Tenant's sole cost and expense, Tenant shall
have the right to introduce into the Premises such other utilities as Tenant
might require and Tenant shall pay the cost of such other utilities directly
to the applicable utility companies. Tenant shall, at its sole cost and
expense, remove all such utilities and restore the Premises to substantially
the same condition as when this Lease was executed, ordinary wear and tear,
condemnation, casualty and Act of God excluded, and shall repair any damage
caused by such removal.
26. Broker. Neither Landlord nor Tenant had any conversations with any
broker concerning the leasing of the Premises. Each party agrees to and
hereby does defend, indemnify and hold the other harmless against and from
any brokerage commissions, or finders' fees or claims therefor by a party
claiming to have dealt with the indemnified party and all costs, expenses and
liabilities in connection therewith, including, without limitation,
reasonable attorneys' fees and expenses for any breach of the foregoing. The
foregoing indemnification shall survive the termination of this Lease for any
reason.
27. Notices. Any notice or other communication required to be given
either party (i) shall be in writing and either hand delivered, delivered by
courier, transmitted by telecopier or mailed by registered or certified mail,
return receipt requested, postage prepaid, (ii) shall be effective on the
date of actual receipt, and (iii) shall be sent to the parties at the
following addresses or at such other addresses as either party may from time
to time notify the other
If to Tenant, to:
Strategic Diagnostics Inc.
128 Sandy Drive
Newark, DE 19713
Fax: (302) 456-6793
Attention: Richard Birkmeyer
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With a required copy to:
Pepper, Hamilton & Scheetz LLP
1235 Westlakes Drive
Suite 400
Berwyn, PA 19312
Fax: (610) 640-7835
Attention: William A. Scari, Jr., Esquire
If to the Landlord, to:
Pencader Courtyard, L.P.
1300 Market Street, Suite 300
Wilmington, DE 19801
Fax: (302) 655-3854
Attention: Randy M. Stoltz
With a required copy to:
Pencader Courtyard, L.P.
1300 Market Street, Suite 300
Wilmington, DE 19801
Fax: (302) 655-3854
Attention: Keith D. Stoltz
28. Miscellaneous
(a) Landlord Transfer. Within ten (10) days following any transfer
by Landlord of its ownership interest in the Property, Landlord shall provide
Tenant with written notice of such transfer of the Property and the name and
address of the successor Landlord to whom Tenant should send future rent
payments and notices (the "Transfer Notice"). In the event that a
predecessor Landlord fails to provide the Transfer Notice; (a) Tenant shall
not be liable to any successor Landlord for any rent payments paid to a
predecessor Landlord; and (b) any successor Landlord shall be bound by any
notice sent to a predecessor Landlord.
(b) Captions. The captions appearing within the body of this Lease
have been inserted as a matter of convenience and for reference only and in
no way define, limit or enlarge the scope of meaning of this Lease or any
provision of this Lease.
(c) Counterparts. This Lease may be executed in several
counterparts, all of which constitute one and the same instrument.
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(d) Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Delaware.
(e) Construction. The language of this Lease shall be construed
according to its normal and usual meaning and not strictly for or against
either Landlord or Tenant. The rule of construction which allows a court to
construe a document more strictly against its author shall not govern the
interpretation of this Lease.
(f) Remedies. No right or remedy herein conferred upon or reserved
to either party is intended to be exclusive of any other right or remedy, and
every right and remedy shall be cumulative and in addition to any other right
or remedy given by this Lease or now or hereafter existing at law or in
equity. The failure of either party to insist upon the strict performance of
any obligation shall not be deemed a waiver thereof.
(g) Severability. If any provision of this Lease shall be invalid or
unenforceable to any extent, the remainder of this Lease shall not be
affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
(h) Entire Agreement. This Lease constitutes the entire agreement
between the parties with respect to the lease of the Property, superseding
any other oral or written agreements between the parties with respect to the
lease of the Property that may exist at the time of the execution of this
Lease, including, without limitation, that certain Letter Agreement dated
September 17, 1997 between Landlord and Tenant, and may be amended only by
written agreement of the parties. No representations, inducements, promises
or agreements, oral or otherwise, between Landlord and Tenant regarding the
Property not embodied herein.
(i) Successors and Assigns. This Lease shall be binding upon and
shall inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors and permitted assigns.
(j) Time is of the Essence. Landlord and Tenant agree that in
fulfilling all terms and conditions of this Lease, time is of the essence.
[SIGNATURE PAGE FOLLOWS]
-23-
IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound
hereby, have signed this Lease as of the day and year first above written.
LANDLORD,
PENCADER COURTYARD, L.P.
/s/ Randy M. Stoltz
----------------------------------
By: Randy M. Stoltz
Its: (illegible)
TENANT
STRATEGIC DIAGNOSTICS INC.
/s/ Richard C. Birkmeyer
----------------------------------
By: Richard C. Birkmeyer
Its: President
STRATEGIC DIAGNOSTIC
Scope of Work
Walls
Standard Interior Partitions: 3 5/8" Metal Studs 25 ga. 10' High with 1/2"
Drywall and 3 1/2" insulation in office and conference rooms.
Bathroom Partitions: 6" Track with staggered 3 5/8" Metal Studs 25 ga. 10'
High with 1/2" Drywall and 3 1/2" insulation.
Exterior Partitions: Exterior Metal Studs are existing and will be insulated
with 3" insulation and sheathed with 1/2" drywall in the office area.
Masonry Partitions in Manufacturing, Quality Control, Wet Lab and Lab as
shown on plan: 6" CMU 0" High
Masonry Partitions in Shipping and Inventory: 6" CMU 12' High
Ceilings
Office Manufacturing/Labs/Bathrooms: 2'x 2' Grid System with 2' x 2'
Armstrong Cortrga Tegular tile or equal with R11 insulation laid on top.
Shipping & Inventory: 2' x 4' Grid System with 2' x 4' Fissured
Non-Directional Flay Lay-in Tile.
Ceiling Height: Office Areas: 9'10"
Open Offices 9'10"
Shipping & Inventory 11'5"
Break Room 9'10"
Hallways & Other Areas 9'10"
Manufacturing/Labs 9'10"
Doors: (Office & Bathrooms) 3'0" x 7'0" Solid Core Birch Veneer with half
glass
(All Others Except Existing Exterior) 3'0" x 7'0" Hollow Metal
(Overhead Door) 10'0" x 9'0" Sectional Overhead Door
Hardware: (Bathroom) Push/Pull Sets with kick plates and closers, hinges and
door stop.
(All other Doors) Passage Sets, hinges and door stop.
Plumbing: Toilets and Urinals and Sinks as shown on plan. Stainless Steel
sink in Break Room.
Rough plumbing (deionized) in Wet Lab, Quality Control, and Lab.
(2) 80 Gallon Hot Water Heaters
Cabinets: 6' Base Cabinet in Break Room and Counter Top
Paint: (Drywall) Acrylic Eggshell Enamel (2) coats
(Interior Block) Semi-gloss Enamel
(Metal Doors and Frames) Oil Base Semi-gloss
(Wood Doors) Clear Urethane Stain
Flooring: (Carpet) Queen Moriah #738 Slate or equal with carpet cove base
(VCT) Armstrong Excellon with Vinyl Cove Base
Page two
Strategic Diagnostic
Scope of Work
Mechanical: (Office/Manufacturing/Labs/Bathrooms/Roof Top Units to provide
Heating and Cooling.
(Shipping and Inventory Gas Fired Unit Heaters to maintain 70
degrees at 20 degrees outside.
Electrical: Outlets as shown on plans including (10) 208 Volt Outlets 3 of
which are 3 phase Switches for lights
2' x 4' Lay-in fixtures with prismatic lenses
Electrical wiring and hook up for 3 cold rooms:
Sprinklers: Per Code
Toilet Partitions: As shown on plan in standard color of grey or tan
Loading Area: Black top Driveway, Dock Height 4', drainage to not hold water
Blinds: Existing in building
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