EXHIBIT 10.25
ESCROW AGREEMENT
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This Escrow Agreement ("Agreement") is made this 21st day of July
1997 by and between THE XXXXXX GROUP, a Pennsylvania partnership ("Landlord"),
VIROPHARMA, INC. ("Tenant"), and MANITO ABSTRACT COMPANY, INC. ("Escrow Agent").
B A C K G R O U N D
By lease dated July ___, 1997 (the "Lease"), Landlord leased to
Tenant certain space in a building to be constructed by Landlord on premises
known as Xxx 00 Xxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx County,
Pennsylvania. Exhibit B, entitled "Work Letter to Lease", of the Lease sets
forth Landlord's and Tenant's respective rights and obligations with respect to
construction of the "Leased Space" which is the subject of the Lease. Exhibit B,
Paragraph 3b, of the Lease entitled "Cost of Tenant Improvements" more
particularly provides for the mechanism for the payment by Tenant of its share
of the cost of construction of the Leased Space, from funds to be deposited in
escrow by Tenant with Escrow Agent. The escrow obligations as set forth in
Exhibit B, Paragraph 3b, of the Lease , as more fully described herein, are
hereinafter collectively called the "Escrow Arrangements."
In accordance with Article 36 entitled "Security Deposit: Security
Interest", of the Lease, Tenant agrees to deposit funds in escrow as security
for Tenant's performance of all the terms and conditions of the Lease ("Security
Deposit"). The escrow obligations concerning the Security Deposit also are set
forth herein.
NOW, THEREFORE, the parties hereto, each intending to be legally bound
hereby, agree as follows:
1. Terms not otherwise defined herein shall have the meaning provided
in the Lease.
2. Escrow Agent hereby agrees to serve as escrow agent and to perform
the duties of "Escrow Agent" set forth herein. Escrow Agent agrees that no fee
shall be due for the performance of its services hereunder, nor shall any
reimbursement be claimed for costs incurred by Escrow Agent in the performance
of its duties hereunder.
3. Upon receipt by Escrow Agent from time to time of the Escrow Funds
received from Tenant, Escrow Agent shall deposit the same in an interest bearing
account with CoreStates Bank, Wilmington Trust Company, or a commercial bank
whose deposits are insured by the US government, up to $100,000.00 and which is
approved by Landlord and Tenant (such approval not to be unreasonably withheld).
Such Escrow Funds shall be held and disbursed by Escrow Agent in accordance with
the provisions of the "Escrow Arrangements" which are attached hereto as Exhibit
"A" and made a part hereof and incorporated herein by reference. Upon receipt
and deposit of the Escrow Funds, Escrow Agent shall send written
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notice to Landlord and Tenant identifying the bank and account number where the
same has been deposited.
4. Escrow Agent shall hold the Security Deposit in an account
segregated from the Escrow Funds until the Commencement Date, as defined in
Article 2 of the Lease, at which time the Security Deposit shall be paid
directly to Landlord.
5. By signing this Agreement, Escrow Agent acknowledges receipt from
Tenant of $45,899.33 which is the Security Deposit and $155,000 which is
Tenant's First payment of the Escrow Funds. Escrow Agent agrees to promptly
deposit such funds in the escrow accounts to be maintained in accordance with
this Agreement and notify Landlord and Tenant as to the bank location and
account number.
6. Escrow Agent shall not be liable for any act or omissions arising
out of its performance of its duties as Escrow Agent under this Agreement,
except such as may constitute gross negligence or willful misconduct, and
Landlord and Tenant shall otherwise indemnify, defend and save harmless Escrow
Agent for any claim, cost or expense arising out of Escrow Agent's agreement to
act as escrow agent hereunder. In the event of any dispute as to the
disposition of the Security Deposit funds or the Escrow Funds, Escrow Agent may
continue to hold the same until resolution of the dispute, or pay or deliver the
Security Deposit Funds or the Escrow Funds into Court whereupon Escrow Agent be
relieved of any further obligation as escrow agent.
7. Any notices required or given pursuant to this Agreement shall be
sent by certified mail, return receipt requested, or Federal Express or other,
nationally recognized overnight courier service, or by hand delivery against
receipt, addressed as follows:
As to Tenant: prior to VIROPHARMA, INC.
Commencement Date: 00 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
As to Tenant as of the VIROPHARMA, INC.
Commencement Date: Eagleview Corporate Center
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: General Counsel
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As to Landlord: THE XXXXXX GROUP
X.X. Xxx 000
717 Constitution Drive
Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Partner
With a copy to: XXXXXX X. XXXXXX, ESQUIRE
Riley, Riper, Xxxxxx & Colagreco
X.X. Xxx 000
000 Xxxxxxxxxx Xxxxx
Xxxxx, XX 00000
As to Escrow Agent: MANITO ABSTRACT COMPANY, INC.
X.X. Xxx 000
Church and Xxxxxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxx, President
8. This Agreement and the Lease provisions incorporated herein by
reference constitute the entire agreement of the parties hereto and shall be
binding upon the parties hereto, their respective successor and assigns.
Notwithstanding the foregoing, Escrow Agent shall not assign its duties
hereunder without the prior written consent of Landlord and Tenant.
9. No modifications or supplements to this Agreement shall be effective
unless in writing signed by all parties hereto.
10. This Agreement may be executed in any number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes, and all such counterparts shall collectively
constitute one agreement, but in making proof of this Agreement it shall not be
necessary to produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
LANDLORD
THE XXXXXX GROUP
BY: /s/ [SIGNATURE APPEARS HERE]
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TENANT:
VIROPHARMA, INC.
BY: /s/ [SIGNATURE APPEARS HERE]
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MANITO ABSTRACT COMPANY, INC.
BY:
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EXHIBIT A
(5) Tenant's initial contribution of $834,760.00 toward the Direct
Payment Portion ("Escrow Funds") shall be paid by Tenant into an escrow account
("Escrow Account") as follows: $155,000 shall be paid by Tenant at the time of
the execution of the Lease; $200,000 shall be paid on or before August 1, 1997;
and the balance of $479,760 shall be paid on or before August 31, 1997. The
Escrow Funds shall maintained by Manito Abstract Company ("Escrow Agent"), as a
segregated, interest bearing account which, unless otherwise agreed by Tenant,
is fully insured up to $100,000 by the United States Government, and otherwise
in accordance with an escrow agreement to be entered which shall be
substantially in the form attached hereto as Schedule 5. All interest earned on
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the Escrow Funds shall remain the property of Tenant, but shall constitute a
portion of the Escrow Funds subject to disbursement in accordance herewith. If,
however, Manito Abstract Company now or hereafter requires a fee for the
performance of its duties as Escrow Agent, Tenant and Landlord, upon the request
of either party, shall designate another party to serve as Escrow Agent which is
reasonably acceptable to Landlord and Tenant and does not require the payment of
any fee for performance of the duties as Escrow Agent.
(6) As Tenant Improvements progress, Landlord shall submit to
Tenant's Consultant invoices for payment of such portion of the Tenant
Improvements which has been Substantially Completed or for materials for the
Tenant Improvements delivered to the site. Such invoice shall be submitted on
an AIA form 702/703 or other form reasonably acceptable to Tenant's Consultant
and shall include such requisitions for payment, bills, charges and other
supporting documentation as Tenant's Consultant shall reasonably request.
Tenant,
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either directly or acting through Tenant's Consultant, shall approve or reject
such invoices within five (5) business days of receipt, or the same shall be
deemed approved. Any rejection of an invoice shall state the reasons therefor
with particularity, and Tenant shall state which sums reflected in the invoice
Tenant objects to, and the portion which is not objected to by Tenant shall be
disbursed in accordance with the provisions below. If Landlord and Tenant
cannot agree on whether the Landlord's Work reflected in an invoice has been
Substantially Completed in accordance with the TI Plans and the other
requirements of the Lease, such dispute shall be decided in accordance with
Section 9 hereto.
(7) Upon approval of an invoice, Tenant, either directly or acting
through Tenant's Consultant, shall, in writing, authorize the Escrow Agent to
pay over to Landlord from the Escrow Account, one-half of the TI Cost reflected
by such invoice and the balance shall be earmarked as funds reserved for payment
of such invoice which shall be paid over to Landlord upon the earlier of (A)
Substantial Completion of the Tenant Improvements or (B) at such time as the
total of all invoices for the Tenant Improvements equals or exceeds $3,117,810.
At such time as the total of all invoices for the Tenant Improvements equals or
exceeds $3,117,810, the entire TI Cost reflected in an invoice shall be paid to
Landlord. Any portion of the Escrow Funds remaining in the Escrow Account after
all payments due Landlord have been paid shall be paid over to Tenant.
