EX-10.25 27 a2123210zex-10_25.htm EX-10.25
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Exhibit 10.25


FOURTH AMENDMENT TO AGREEMENT OF LEASE

        THIS FOURTH AMENDMENT TO AGREEMENT OF LEASE (this "Amendment") is made on this 13 day of September, 2002, by and between MASONS MILL PARTNERS, L.P., a Pennsylvania limited partnership ("Landlord"), and IMMUNICON CORPORATION, a Delaware corporation ("Tenant").

BACKGROUND

        Pursuant to a certain Agreement of Lease dated August 20, 1999 (the "Original Lease"), as amended by a certain First Amendment to Agreement of Lease dated as of August 20, 1999 (the "First Amendment"), by a certain Second Amendment to Agreement of Lease dated as of September 19, 2000 (the "Second Amendment"), and by a certain Third Amendment to Agreement of Lease dated as of April 24, 2002 (the "Third Amendment"), Tenant is leasing from Landlord 30,865 rentable square feet of space, as more particularly described in the Lease, (the "Existing Premises") in the buildings known as Building #1, Building #2, and Building #4 erected on certain land (the "Land") located at Masons Mill Business Park, Huntingdon Valley, Pennsylvania 19006 (the "Park") for an initial term expiring on November 30, 2006. The Original Lease, the First Amendment, the Second Amendment, and the Third Amendment are sometimes referred to herein collectively as the "Lease." Landlord and Tenant now desire to amend the Lease to provide for, among other things: the expansion of the Demised Premises; the renaming of the Building 4 Space; and the removal of janitorial services, all as set forth below.

        NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth below, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:

        1.    Capitalized Terms; "Building".    The capitalized terms used in this Amendment shall have the same meanings as are set forth in the Lease, except where otherwise defined herein. The term "Building" as used in the Lease and in this Amendment shall mean collectively Buildings #1, #2, and #4 in the Park, as well as the pedestrian bridge presently connecting Buildings #1 and #2 (the "Bridge"). Notwithstanding the foregoing, the term "Building" as used in Exhibit "B" to this Amendment shall mean Building #4 only.

        2.    Renaming of Building 4 Space/Expansion of the Demised Premises.    

            2.1   The 1,400 rentable square foot portion of space defined in the Third Amendment as the "Building 4 Space" shall hereinafter be redefined as the "Suite 405 Space."

            2.2   Landlord, for a term commencing on October 1, 2002 (the "Suite 404 Space Commencement Date"), and subject to the provisions and conditions hereof and of the Lease, hereby leases to Tenant, and Tenant hereby rents from Landlord, an additional 2,480 rentable square feet of space (the "Suite 404 Space") in Building #4, as identified on Exhibit "A" attached hereto and made a part hereof.

            2.3   Except as otherwise set forth in this Amendment, effective on October 1, 2002, the Demised Premises shall consist of and be defined as all of Building #1, the Bridge, Building #2, the Suite 405 Space, and the Suite 404Spacein the Park containing 33,345 rentable square feet of space.

            2.4   Tenant agrees to accept possession of the Suite 404 Space in an "AS IS" condition, and shall be responsible for the performance, in accordance with the provisions of Exhibit "B," of all work necessary or desirable to render the Suite 404 Space ready for Tenant's occupancy.

            2.5   Section 3 (d) of the Third Amendment is hereby deleted and of no further force or effect.


        3.    Renewal of Lease Term.    

            3.1   The Lease Term shall be automatically extended for three (3) additional periods of five (5) years each, and such renewal term (the "Automatic Renewal Term") shall commence upon the expiration of the previous term of the Lease, provided that:

              (a)   Each renewal term shall be automatic unless Tenant gives written notice to Landlord at least twelve (12) months prior to the expiration of the then current term; and

              (b)   At the time of each such renewal, the Lease shall be in full force and effect and there shall exist no default by Tenant which remains uncured beyond any applicable period of grace.

            3.2   In the event the foregoing renewals are effectively exercised, all the terms and conditions contained in the Lease shall continue to apply except that:

              (a)   There shall be no further right of renewal beyond the periods referred to above;

              (b)   The Automatic Renewal Terms shall apply to all (and not less than all) of the Demised Premises originally leased hereunder, plus any additional space leased by Tenant pursuant to any option contained herein or otherwise;

              (c)   In the event Tenant shall have assigned the Lease or sublet all or any portion of the Demised Premises, this option shall automatically expire and be null and void with respect to that portion of the Demised Premises so assigned or sublet;

              (d)   The rental rate applicable to the Demised Premises during any Automatic Renewal Term, plus any additional space then leased pursuant to the Lease, shall be as defined in Section 4 of this Amendment

        4.    Fixed Rent for Additional Space and Existing Premises.    

            4.1   Commencing on October 1, 2002 and continuing throughout the remainder of the Lease Term, Fixed Rent for the Suite 404 Space ONLY shall be payable by Tenant to Landlord, in the manner set forth in the Lease, according to the following schedule:

Period of Lease Term
   Monthly Installment of Annual Fixed Rent Due
   Total Annual Fixed Rent Due
   Annual Fixed Rent per Rentable Square Foot
10/1/02-11/30/02   $ 3,100.00   $ 6,200.00   $ 15.00 + electric
12/1/02-11/30/03   $ 3,203.33   $ 38,440.00   $ 15.50 + electric
12/1/03-11/30/04   $ 3,306.67   $ 39,680.00   $ 16.00 + electric
12/1/04-11/30/05   $ 3,410.00   $ 40,920.00   $ 16.50 + electric
12/1/05-11/30/06   $ 3,513.33   $ 42,160.00   $ 17.00 + electric

Fixed Rent shall increase fifty ($.50) cents per rentable square foot each year thereafter.

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            4.2   Commencing on October 1, 2002 and continuing throughout the Lease Term, Fixed Rent for the Existing Premises shall be payable by Tenant to Landlord, in the manner set forth in the Lease, according to the following schedules:

Building #1 ONLY:

Period of Lease Term
   Monthly Installment of Annual Fixed Rent Due
   Total Annual Fixed Rent Due
   Annual Fixed Rent per Rentable Square Foot
10/1/02-11/30/02   $ 20,937.50   $ 41,875.00   $ 15.00 + electric
12/1/02-11/30/03   $ 21,635.42   $ 259,625.00   $ 15.50 + electric
12/1/03-11/30/04   $ 22,333.33   $ 268,000.00   $ 16.00 + electric
12/1/04-11/30/05   $ 23,031.25   $ 276,375.00   $ 16.50 + electric
12/1/05-11/30/06   $ 23,729.17   $ 284,750.00   $ 17.00 + electric

Fixed Rent shall increase fifty ($.50) cents per rentable square foot each year thereafter.

Building #2 ONLY:

Period of Lease Term
   Monthly Installment of Annual Fixed Rent Due
   Total Annual Fixed Rent Due
   Annual Fixed Rent per Rentable Square Foot
10/1/02-11/30/02   $ 18,542.71   $ 37,085.42   $ 17.50 + electric
12/1/02-11/30/03   $ 19,072.50   $ 228,870.00   $ 18.00 + electric
12/1/03-11/30/04   $ 19,602.29   $ 235,227.50   $ 18.50 + electric
12/1/04-11/30/05   $ 20,132.08   $ 241,585.00   $ 19.00 + electric
12/1/05-11/30/06   $ 20,661.88   $ 247,942.50   $ 19.50 + electric

Commencing in Year 1 of the first Automatic Renewal Term, Fixed Rent shall be Seventeen Dollars and Fifty Cents ($17.50) per rentable square foot and shall increase fifty ($.50) cents per rentable square foot each year thereafter.

Suite 405 ONLY:

Period of Lease Term
   Monthly Installment of Annual Fixed Rent Due
   Total Annual Fixed Rent Due
   Annual Fixed Rent per Rentable Square Foot
10/1/02-11/30/02   $ 1,750.00   $ 3,500.00   $ 15.00 + electric
12/1/02-11/30/03   $ 1,808.33   $ 21,700.00   $ 15.50 + electric
12/1/03-11/30/04   $ 1,866.67   $ 22,400.00   $ 16.00 + electric
12/1/04-11/30/05   $ 1,925.00   $ 23,100.00   $ 16.50 + electric
12/1/05-11/30/06   $ 1,983.33   $ 23,800.00   $ 17.00 + electric

Fixed Rent shall increase fifty ($.50) cents per rentable square foot each year thereafter.

        5.    Exhibit "C" of the Lease; Additional Rent.    

            5.1   Effective on October 1, 2002, Exhibit "C" of the Lease is hereby deleted in its entirety, and the attached Exhibit "C" is substituted therefor.

            5.2   Tenant shall continue to pay Additional Rent as set forth in the Lease, as amended.

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        6.    Janitorial Service.    On October 1, 2002, janitorial service as provided by Landlord to Tenant, will no longer be included as an Operating Expense pursuant to the Original Lease. The following sections of the Original Lease are hereby amended as follows to remove janitorial service:

            6.1    Covenants of Landlord.    Section 9 of the Original Lease is hereby deleted in its entirety, and the following is hereby substituted therefore:

              9.     Landlord will supply for normal office use the equipment and facilities to supply heat and air conditioning to the Demised Premises, common area electricity, and hot and cold water, all in amounts consistent with services provided in similar buildings in the community, provided that: (i) Landlord shall not be liable for failure to supply or interruption of any such service by reason of any cause beyond Landlord's reasonable control and Landlord shall not be liable for consequential damages in any event; and (ii) if Tenant requires installation of a separate or supplemental heating, cooling, ventilating and/or air conditioning system, Tenant shall pay all costs in connection with the furnishing, installation, operation, maintenance and replacement thereof. Landlord shall not be responsible to provide electricity to the Demised Premises, but Landlord has installed meters to measure the electricity consumed on the Demised Premises and Tenant shall pay, as Additional Rent, the cost thereof promptly upon being billed therefor by the providing utility.

            6.2    Covenants of Tenant.    The following new Section 10.12 is hereby added to Article 10 of the Original Lease:

              10.12. (a) Keep the Demised Premises in a clean, neat and sanitary condition. Notwithstanding anything contained in this Lease to the contrary, Landlord shall have no obligation to provide any cleaning or janitorial services to the Demised Premises. All such services shall be the responsibility solely of Tenant. Tenant shall deposit all trash and debris from the Demised Premises in the dumpster located closest to the Demised Premises; provided, however, that at no time shall Tenant place any Hazardous Substances or anything other than normal everyday office trash in such dumpster. Such Hazardous Substances and non-everyday office trash shall be disposed of by Tenant at its sole cost and expense, in accordance with all applicable laws, rules, regulations and ordinances.

              (b)   Any and all contractors engaged by Tenant to provide janitorial and/or trash disposal services for the Demised Premises shall be approved in advance by Landlord in writing and shall comply with and be subject to such conditions, rules and requirements as Landlord may reasonably impose from time to time. Such conditions shall include, without limitation, that Tenant (i) maintain or cause such contractors to maintain appropriate insurance coverage including, without limitation, workmen's compensation insurance (statutory limits), employer's liability insurance with limits of not less than $1,000,000 per accident, automobile liability insurance with limits of not less than $1,000,000 per occurrence, and commercial general liability insurance (including a contractual liability and fire legal liability insurance endorsement) against claims for bodily injury, death or property damage in amounts not less than $2,000,000.00, and (ii) cause each such contractors to agree in writing to indemnify and save Landlord, its representatives and Landlord's managing agent, if any, harmless from and against all claims, demands, expenses, losses, suits and damages as may be occasioned by reason of the negligence or otherwise tortious act of such contractor or anyone on, in or about the Park, the Land or the Building on behalf of or at the invitation of such contractor. All such insurance shall name as an additional insured Landlord and Landlord's managing agent, if any, (other than workmen's compensation insurance) and shall be issued by companies having a Best's financial rating of A or better and a size class rating of XII (12) or larger or otherwise acceptable to Landlord. Landlord may from time to time increase the required limits for any such insurance.

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            6.3    Exhibit "E" of the Original Lease.    Exhibit "E" of the Original Lease is hereby deleted in its entirety.

            6.4    General Prohibitions.    Subsection 4b of Exhibit "F" of the Original Lease is hereby deleted in its entirety.

        7.    Right of First Offer.    Before entering into a lease with anyone else during the Lease Term hereunder respecting any previously leased space in Buildings #3, #4 and #6, Landlord shall notify Tenant (either by telephone, facsimile, or in writing) of the availability of such space for rent (the "Right of First Offer"). Provided Tenant gives written notice of its desire to lease such space within five (5) business days after receipt of said notice from Landlord, Tenant shall, thereafter, for a period of thirty (30) days, have the right to negotiate with Landlord, for a lease of such space for a term not extending beyond the expiration of this Lease, and Landlord and Tenant agree to negotiate for such a lease in good faith. Landlord's notice may not be given more than six (6) months prior to the date as of which said space will become available for rent. If Tenant fails to respond to said notice within said five (5) business days period, or, after giving written notice of its exercise of its right to negotiate, if Landlord and Tenant do not enter into a lease for such space within said thirty (30) day period, Tenant's rights under this Article shall be deemed to have been waived and Landlord shall be free (without any further obligation to Tenant) to lease the space to any other party upon any terms and without any further obligation to Tenant, whether or not the terms of such lease are more or less favorable that those offered to Tenant. Tenant's right to negotiate, as aforesaid, is subordinate, however, to any expansion or renewal options granted from time to time in leases to other tenants in the Building. This Right of First Offer for additional space shall be terminated during any period in which an Event of Default by Tenant hereunder exists until said Event of Default has been cured. The period of time within which this Right of First offer may be exercised shall not be extended or enlarged by reason of Tenant's inability to exercise such rights because of the foregoing provision. Time is of the essence. If Tenant fails to exercise its Right of First Offer in any instance when such right may arise, in writing, prior to the expiration of the applicable time period for the exercise of such right, Tenant's right in the instance in question shall thereafter be deemed null and void and of no further force or effect.

        8.    Confession of Judgment for Possession.    Subsection 18.1(f) and Section 18.2 of the Lease are hereby amended and restated in their entirety, and shall be applicable to the Lease as amended and to the Existing Premises and the Additional Space.

            18.1(f). SECTION 18.1.(f)(i) BELOW SETS FORTH WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT. IN GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT, TENANT HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR NOTICES AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA.

    Tenant's initials: /s/ [ILLEGIBLE]

            (i)    CONFESSION OF JUDGMENT FOR POSSESSION.    TENANT IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND CONFESS JUDGMENT AGAINST TENANT FOR POSSESSION OF THE DEMISED PREMISES, WITHOUT STAY OF EXECUTION. TO THE EXTENT PERMITTED BY LAW, TENANT RELEASES ALL ERRORS IN SUCH PROCEEDINGS. IF A VERIFIED COPY OF THIS LEASE IS FILED, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL LEASE. THE AUTHORITY AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST TENANT SHALL NOT BE EXHAUSTED BY THE

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    INITIAL EXERCISE THEREOF AND JUDGMENT MAY BE CONFESSED AS OFTEN AS ANY EVENT OF DEFAULT HEREUNDER OCCURS. SUCH AUTHORITY MAY BE EXERCISED DURING OR AFTER THE EXPIRATION OF THE LEASE TERM AND/OR DURING OR AFTER THE EXPIRATION OF ANY EXTENDED OR RENEWAL TERM. IF SUCH PROCEEDING IS TERMINATED AND THE POSSESSION OF THE DEMISED PREMISES REMAINS IN OR IS RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME EVENT OF DEFAULT AND UPON ANY SUBSEQUENT EVENT OR EVENTS OF DEFAULT, OR UPON THE TERMINATION OF THIS LEASE UNDER ANY OF THE TERMS OF THIS LEASE, TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE DEMISED PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE DEMISED PREMISES AS HEREINABOVE PROVIDED.

            18.2 PROCEEDINGS.    IF PROCEEDINGS SHALL BE COMMENCED BY LANDLORD TO RECOVER POSSESSION UNDER THE ACTS OF ASSEMBLY AND RULES OF CIVIL PROCEDURE, EITHER AT THE END OF THE LEASE TERM OR UPON THE EARLIER TERMINATION OF THIS LEASE, OR FOR NON-PAYMENT OF RENT OR ANY OTHER REASON, TENANT SPECIFICALLY WAIVES THE RIGHT TO ANY AND ALL NOTICES REQUIRED BY THE LANDLORD AND TENANT ACT OF 1951, AS THE SAME MAY BE AMENDED, AND AGREES THAT TEN (10) DAYS' NOTICE SHALL BE SUFFICIENT IN ALL CASES.

        9.    Brokers.    Each party represents and warrants to the other that it, he, she or they have not made any agreement or taken any action which may cause anyone to become entitled to a commission as a result of the transactions contemplated by this Amendment, and each will indemnify and defend the other from any and all claims, actual or threatened, for compensation by any such third person by reason of such party's breach of its, his, her or their representation or warranty contained in this Article.

        10.    Miscellaneous.    Except as otherwise provided in this Amendment, all provisions of the Lease shall continue in full force and effect, and are incorporated herein by reference; however, to the extent that anything contained in this Amendment conflicts with or is inconsistent with any term or provision of the Lease, the terms and provisions of this Amendment shall control. This Amendment shall be binding upon, and shall inure to the benefit of, Landlord and Tenant and their respective successors and assigns.

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IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be executed on the day and year first above written.

    LANDLORD:
MASONS MILL PARTNERS, L.P., a Pennsylvania limited partnership

 
 
By: Woodmount Company, LLC, a Pennsylvania limited liability company, its sole General Partner

 
 
By:
 
/s/ DUNCAN B. PITCAIRN
    Name:   Duncan B. Pitcairn
    Title:   Managing Member

 
 
TENANT:
IMMUNICON CORPORATION

 
 
By:
 
/s/ EDWARD L. ERICKSON
    Name:   Edward L. Erickson
    Title:   Chairman, President & CEO

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EXHIBIT "A"

Plan of the Suite 404 Space

[GRAPHIC]

    Landlord: DBP
Tenant: [ILLEGIBLE]

EXHIBIT "B"

STANDARDS FOR WORK TO BE PERFORMED BY TENANT

1.
Prior to commencing any work in connection with the initial fitout of the Suite 404 Space for use by Tenant (referred to collectively hereinafter as the "Tenant's Work"), Tenant shall first obtain the approval of Landlord, in writing, of the specific work Tenant proposes to perform. In connection therewith, Tenant shall prepare and deliver to Landlord, for its approval, which approval shall not be unreasonably withheld or delayed, complete architectural, mechanical, electrical and structural plans and specifications for the construction of the Tenant's Work (the "Construction Drawings"). The Construction Drawings shall be prepared by Tenant's design professional(s) (all of whom shall be duly licensed by the authority having jurisdiction over the appropriate profession) at Tenant's sole cost and expense (except as otherwise set forth in this Exhibit). Following approval by Landlord, the Construction Drawings shall not be changed, nor shall substitutions be made, without Landlord's prior approval. Promptly following the completion of the Construction Drawings, or the approval of any changes thereto, as applicable, Landlord shall advise Tenant whether it shall be obligated to remove portions of the Tenant's Work upon the expiration or earlier termination of the Lease Term, in accordance with Article 8 of the Original Lease; provided, however, that in no event shall Tenant be required to remove any portion of the Tenant's Work which is a typical improvement in first-class office space, unless expressly set forth in the Lease, as amended. Without limiting the foregoing, under no circumstances shall the following improvements be deemed "typical": (i) any improvement directly related to any specialty use which is incidental or subordinate to general office use, such as the cooking and related equipment and improvements in any kitchen or cafeteria; (ii) any floor openings, depressed slabs, dumbwaiters, safes or vaults, raised floors, supplemental HVAC or UPS; and (iii) any improvement which contains any Hazardous Substance or does not comply with applicable laws, codes, ordinances, regulations and requirements.

2.
To the end that there shall be no labor disputes which would interfere with any construction occurring in the Park or the operation thereof, or any part thereof including, but not limited to, the Suite 404 Space, in performing any work in or about the Suite 404 Space, Tenant agrees to engage the services of, or to permit the engagement of, only such contractors, subcontractors and subsubcontractors ("Tenant's Contractors") as will work in harmony and without causing any labor dispute with each other, with Landlord's contractors and subcontractors and with the contractors and subcontractors of all other tenants working in or about the Park or any part thereof. Tenant also shall require Tenant's Contractors to employ only such labor as will work in harmony and without causing any labor dispute with all other labor then working in or about the Park or any part thereof including, but not limited to, the Suite 404 Space. Furthermore, only those Tenant's Contractors as have been duly licensed by the authority having jurisdiction over the appropriate profession and which have been approved in writing by Landlord, may perform any portion of the Tenant's Work. Landlord shall have the right, among other things, to condition such approval on the delivery by such Tenant's Contractor of a 100% payment and performance bond with respect to its portion of the Tenant's Work. Prior to commencing any Tenant's Work in the Additional Space, Tenant shall provide Landlord with a list of emergency telephone numbers for all design professionals, Tenant's Contractors and materialmen which will be involved with the Tenant's Work. Such list shall be promptly revised by Tenant and delivered to Landlord in the event of any changes or additions thereto.

    Without in any limiting the provisions of Article 15 of the Original Lease, Tenant covenants and agrees to exonerate, indemnify, defend, protect and save Landlord, its representatives and Landlord's managing agent, if any, harmless from and against any and all claims, demands, expenses, losses, suits and damages as may be occasioned by reason of the performance of the Tenant's Work including, without limitation, by reason of (i) any disputes between or among any of

B-1

    Tenant, the Tenant's Contractors and materialmen, and any other person or entity, (ii) any accident or matter occurring in or about the Park or in or about the Building, causing injury to persons or damage to property, except to the extent such accident or other matter resulted from the negligence or otherwise tortious act of Landlord or Landlord's agents or employees, (iii) the failure of Tenant or any of the Tenant's Contractors or materialmen to fully and faithfully perform the obligations and observe the conditions of the Lease (as amended), or (iv) the negligence or otherwise tortious act of Tenant, any of the Tenant's Contractors or materialmen or anyone in or about the Park or in or about the Building on behalf of or at the invitation or right of Tenant.

3.
Prior to commencing the Tenant's Work, Tenant shall obtain all permits required by any governmental authority having jurisdiction and shall deliver copies thereof to Landlord. If, in connection with the review by any governmental authority of the plans and specifications for all or any portion of the Tenant's Work, any such governmental authority requires Tenant to make changes to the Construction Drawings, Tenant shall notify Landlord promptly of such required changes. All of the Tenant's Work shall be done in accordance with the Construction Drawings approved by Landlord, the requirements of all applicable laws, ordinances, regulations, codes and other requirements of governmental authorities and with the requirements of Landlord's underwriter. In addition, the Tenant's Work shall be performed in a thorough, first-class and workmanlike manner, shall incorporate only new first-quality materials and shall be in good and usable condition at the date of completion. At any time and from time to time during the performance of the Tenant's Work, Landlord, Landlord's architect and Landlord's other representatives may enter upon the Demised Premises and inspect the Tenant's Work and take such steps as they may deem necessary or desirable to assure the proper performance of the Tenant's Work and/or for the protection of the Demised Premises, the base building systems and/or any premises adjacent to the Demised Premises. Such inspection shall, however, be for Landlord's benefit only and may not be relied upon by Tenant or any other party.

4.
Tenant hereby appoints John Fuente as its construction representative ("Tenant's Construction Representative") to act for Tenant with respect to all construction and construction related matters involving the Tenant's Work; provided, however, that Tenant may change Tenant's Construction Representative from time to time to another person who is skilled in the construction of tenant improvements in Class A office buildings or who is an officer or management level employee of Tenant, which change shall be effective upon receipt by Landlord of written notice of such change. During the construction of the Tenant's Work, Tenant's Construction Representative shall be generally available at the Additional Space. Tenant's Construction Representative shall have the authority to act on the Tenant's behalf at all times (including at all construction meetings and inspections) and specifically to bind Tenant with respect to all construction related matters including, but not limited to, scheduling changes, change orders and other cost changes.

5.
Prior to commencing performance of the Tenant's Work, and until the Tenant's Work has been completed in the manner set forth in this Exhibit, all Tenant's Contractors shall maintain the insurance coverages set forth on Schedule 1 to this Exhibit, in the minimum amounts specified therein or in such greater amounts as may be required by Landlord based upon the risks of the project or good insurance practices. All such insurance shall (i) name Landlord and any other parties designated by Landlord as additional insureds, (ii) be in companies licensed to do business in Pennsylvania and reasonably satisfactory to Landlord, and (iii) provide that the policies will not be changed, canceled or expire until at least thirty (30) days prior written notice has been given to Landlord. Evidence of all coverage shall be delivered to Landlord prior to any Tenant's Contractor commencing work in the Suite 404 Space. The liability of Tenant and Tenant's Contractors shall not be limited because of the insurance required hereunder nor to the amounts thereof nor because of any exclusions from coverage in any insurance policy.

B-2

6.
Tenant shall comply, and shall cause all of the Tenant's Contractors and materialmen to comply, with all procedures and policies established by Landlord from time to time relating to construction by tenants in the Park. In addition, Tenant shall, and shall cause all of the Tenant's Contractors and materialmen to, comply with all applicable OSHA safety standards in connection with the performance of the Tenant's Work.

7.
The Tenant's Work shall be coordinated with all work being performed by Landlord and other occupants of the Park to the end that the Tenant's Work will not interfere with the operation of the Park (or any portion thereof) or interfere with or delay the completion of any other construction within the Park, and Tenant shall comply, and shall cause the Tenant's Contractors to comply, with all procedures and regulations prescribed by Landlord for integration of the Tenant's Work with that to be performed in connection with any other construction in the Park and in connection with the operation of the Park. The Tenant's Work shall be performed in a manner so as not to disturb or annoy other tenants or occupants of the Park and shall be performed only during such hours and under such conditions as shall be reasonably established by Landlord.

8.
Tenant and the Tenant's Contractors and materialmen shall be solely responsible for the transportation, safekeeping and storage of materials and equipment used in the performance of the Tenant's Work, for the removal of waste and debris resulting therefrom, and for any damage caused by them to any part of the Park, including the Demised Premises. Without limiting the foregoing in any way, Tenant shall keep, and shall cause the Tenant's Contractors and materialmen to keep, the common areas of the Building and the Park free and clear of all waste and debris, and shall remove all waste and debris from around their dumpsters on a daily basis. Furthermore, all elevators used by Tenant and the Tenant's Contractors and materialmen shall be kept free and clear of all waste and debris, and shall be appropriately protected from any damage which could result from such use. It shall be Tenant's responsibility to cause each of the Tenant's Contractors and materialmen to maintain continuous protection of adjacent property and improvements against damage by reason of the performance of the Tenant's Work. It also shall be Tenant's responsibility to cause each of the Tenant's Contractors and materialmen to properly protect the Tenant's Work. In the event that Tenant fails to fulfill its obligations under or to otherwise comply with, or to cause the Tenant's Contractors or materialmen to fulfill their obligations under or to otherwise comply with, the provisions of this Section 8, Landlord shall have the right to perform such obligations or to otherwise cause such compliance, and the cost thereof shall be paid by Tenant to Landlord within ten (10) days after receipt by Tenant of a bill therefor.

9.
Neither Tenant nor any Tenant's Contractor or materialman may use any space within the Park for storage, handling or moving of materials or equipment and/or for the location of a field office or facilities for the employees of such Tenant's Contractor or materialman without obtaining Landlord's prior written approval for each such use. If Tenant or any Tenant's Contractor or materialman shall use any space in the Park for any or all of the aforesaid enumerated purposes or any other similar purpose without obtaining Landlord's prior written approval therefor, Landlord shall have the right to terminate such use and remove all of Tenant's or such Tenant's Contractor's or materialman's materials, equipment and other property from such space, without Landlord being liable to Tenant and/or to such Tenant's Contractor or materialman, and the cost of such termination and/or removal shall be paid by Tenant to Landlord within ten (10) days after receipt by Tenant of a bill therefor.

10.
Tenant shall secure from all Tenant's Contractors and materialmen, and shall cause to be properly filed prior to the commencement of any of the Tenant's Work, effective waivers of mechanics liens. Copies of filed waivers shall be delivered to Landlord prior to the commencement of any of the Tenant's Work.

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11.
Tenant shall promptly pay, or cause to be paid, all Tenant's Contractors performing the Tenant's Work and all materialmen supplying materials for the Tenant's Work. Should any lien be made or filed in connection with the Tenant's Work, Tenant shall bond against or discharge the same within (10) days after receiving notice thereof. If Tenant shall fail to cause such lien to be bonded against or to be discharged within such period, then, in addition to any other right or remedy which Landlord may have under the Lease (as amended), at law or in equity, Landlord may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding. Any amount so paid by Landlord and all costs and expenses incurred by Landlord in connection therewith, together with interest at the Default Rate from the respective dates of Landlord's making of the payment and incurring of the cost and expense, shall constitute Additional Rent payable by Tenant under the Lease (as amended) and shall be paid by Tenant to Landlord on demand.

12.
Nothing set forth in the Lease (as amended) shall be deemed or construed as (i) a consent or request by Landlord, expressed or implied, by inference or otherwise, to any contractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific or general improvement, alteration or repair of or to the Demised Premises or of or to the Park or any improvement therein, or to any part thereof; or (ii) giving Tenant or any other person, firm or corporation any right to contract for or to perform any labor or furnish any services or materials that would permit or give rise to a lien against the Demised Premises, the Park or any part thereof. Notwithstanding anything in the Lease (as amended) or in any other writing signed by Landlord to the contrary, neither the Lease (as amended) nor any other writing signed by Landlord shall be construed as evidencing, indicating, or causing an appearance that any erection, construction, alteration or repair to be done, or caused to be done, by Tenant is or was for the immediate use or benefit of Landlord.

13.
Tenant shall pay Landlord, within ten (10) days of being billed therefor, for the cost of any work or services provided by Landlord in connection with the Tenant's Work, including, without limitation the cost of (i) any architectural or engineering consultants engaged by Landlord to review Tenant's plans and specifications and the Tenant's Work, (ii) all structural, mechanical, plumbing, electrical, fire protection and other work required to extend or adapt the base building systems to the Tenant's Work, (iii) hoisting, rubbish removal (including the cost of renting and removing dumpsters and disposing of contents) and utilities. In addition to the foregoing, upon completion of the Tenant Work, Tenant shall pay Landlord a fee in the amount of three percent (3%) of the cost of the Tenant's Work.

14.
Promptly following the final completion of all of the Tenant's Work, Tenant shall provide Landlord, at Tenant's sole cost and expense, with a complete set of as-built plans and specifications for the Tenant's Work.

    Landlord: DBP
Tenant: [ILLEGIBLE]

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FOURTH AMENDMENT TO AGREEMENT OF LEASE