Maryland-Germantown-Goldenrod Lane-Senaca Meadows Corporate Center Lease - Westphalia Center II LP and Large Scale Proteomics Corp.
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LEASE
FOR
LARGE SCALE PROTEOMICS CORPORATION
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Seneca Meadows Corporate Center
Phase II
Building #7
Germantown, Maryland 20876
07/18/00
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TABLE OF CONTENTS
PARAGRAPH PARAGRAPH TITLE PAGE
--------- --------------- ----
LEASE ABSTRACT......................................................... i
DEFINITIONS............................................................ ii
1. DEMISED PREMISES; TERM OF LEASE; RENTAL; SECURITY
DEPOSIT; HOLDOVER; ADDITIONAL RENT; LATE CHARGE........................ 1
2. TENDER OF POSSESSION; LANDLORD'S WORK; BUILDING
SHELL; TENANT IMPROVEMENT ALLOWANCE; TENANT'S WORK..................... 5
3. USE OF PREMISES; TENANT RESPONSIBILITIES; REPAIRS AND
MAINTENANCE; INTERIOR ALTERATIONS; EXTERIOR
MODIFICATIONS; SURRENDER OF POSSESSION; MECHANICS LIENS ............... 7
4. UTILITY CHARGES; PRO RATA SHARE COMMON AREA; OPERATING EXPENSES ....... 11
5. BANKRUPTCY ............................................................ 14
6. INSURANCE ............................................................ 15
7. SUBLETTING AND ASSIGNMENT.............................................. 16
8. PAYMENT OF REAL ESTATE TAXES AND INSURANCE COSTS....................... 18
9. DAMAGE BY FIRE OR OTHER CASUALTY; OR SERVICE INTERRUPTION.............. 20
10. COMPLIANCE WITH LAWS, ETC.............................................. 21
11. NON.WAIVER OF BREACH................................................... 21
12. EVENT OF DEFAULT; REMEDIES; RELETTINGS; LEGAL COSTS; INTEREST;
ACCORD AND SATISFACTION; CONCESSIONS; DEFAULT UNDER OTHER LEASES....... 22
13. LANDLORD'S LIABILITY................................................... 25
14. TENANT'S SIGNS......................................................... 25
15. LANDLORD'S SIGNS....................................................... 25
16. ENTRY AND ACCESS....................................................... 25
17. EMINENT DOMAIN......................................................... 26
18. CONSENT ............................................................ 26
19. TENANT'S PROPERTY...................................................... 27
20. SUBORDINATION.......................................................... 27
21. FIRE INSURANCE......................................................... 28
22. PARKING AREAS.......................................................... 29
23. PLATE GLASS ........................................................... 29
24. NOTICES ............................................................ 29
25. TENANT ESTOPPEL CERTIFICATES; LANDLORD CURE RIGHTS
TENANT'S CURE RIGHTS................................................... 29
26. MORTGAGEE REVISIONS.................................................... 31
27. QUIET POSSESSION....................................................... 31
28. MISCELLANEOUS GENERAL PROVISIONS....................................... 31
29. RENEWAL OPTION......................................................... 33
30. REMOVAL BY TENANT...................................................... 34
31. LIEN ON TENANT'S PROPERTY.............................................. 34
32. BROKERAGE ............................................................ 34
33. RULES AND REGULATIONS.................................................. 35
34. ENVIRONMENTAL HAZARDS.................................................. 35
35. ROOFS & SITE RIGHTS.................................................... 37
SIGNATURE PAGE......................................................... 38
EXHIBIT "A" - Site Plan................................................ 39
EXHIBIT "B" - Rules & Regulations...................................... 40
EXHIBIT "C" - Landlord's Work.......................................... 44
EXHIBIT "D" - Letter of Credit......................................... 50
EXHIBIT "E" - Landlord's Consent & Waiver.............................. 52
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LEASE ABSTRACT
LANDLORD: Westphalia Center II Limited Partnership
TENANT: Large Scale Proteomics Corporation
DEMISED PREMISES: Seneca Meadows Corporate Center
[Paragraph 1 (A)] 20439,20441,20443,20445,20447,20449 & 20451
GOLDENROD LANE (Building #7)
Germantown, Maryland 20876
Area: Approximately 53,054 sf
TERM OF LEASE: TEN (10) YEARS
[Paragraph 1 (B)]
COMMENCEMENT DATE: JANUARY 1, 2001 (for Rent)
[Paragraph 1 (B)]
INITIAL RENTAL: $59,686.00/MONTH, $716,232.00/year
[Paragraph 1 (C)]
SECURITY DEPOSIT: Letter of Credit - $716,232.00
[Paragraph 1 (D)] (or Certificate of Deposit)
PRO RATA SHARE: 100%
[Paragraph 4(B)]
NOTICES: Landlord:
[Section 24] Westphalia Center II Limited Partnership
9108 Gaither Road
Gaithersburg, Maryland 20877
Attn: Mr. Paul N. Chod
Tenant:
Before Commencement Date: Large Scale Proteomics Corporation
9620 Medical Center Drive, Suite 201
Rockville, Maryland 20850-3338
After Commencement Date: At the Demised Premises
RENEWAL OPTION: Two (2) additional consecutive periods of
[Section 29] five (5) years at rates to be determined
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DEFINITIONS
TERM SECTION
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Acquisition ...............................................................7(C)
Actual Expenses............................................................4(E)
Additional Rent............................................................1(F)
Adequate Assurance of Future Performance...................................5(C)
Affiliate..................................................................7(C)
Allowance Credit...........................................................2(D)
Alterations................................................................3(D)
Amortized Cost.............................................................2(D)
Approved Working Drawings..................................................2(E)
Bankruptcy Code............................................................5(A)
Basic Annual Rental........................................................1(C)
Basic Monthly Rental.......................................................1(C)
Basic Rate...................................................................21
Brokers......................................................................32
Building...................................................................1(A)
Building Shell.............................................................2(C)
Business Days.............................................................28(G)
Certificate of Deposit.....................................................1(D)
Commencement Date..........................................................1(B)
Common Areas...............................................................4(C)
Concessions...............................................................12(G)
Default Interest Rate.....................................................12(E)
Demised Premises...........................................................1(A)
Effective Transfer Date...................................................7(C)
Environmental Laws...........................................................34
Event of Default..........................................................12(A)
Events of Bankruptcy.......................................................5(A)
Expense Estimate...........................................................4(E)
Expense Notice.............................................................4(E)
Exterior Utility Lines.....................................................3(C)
Financing....................................................................20
Hazardous Substances.........................................................34
HVAC.......................................................................3(C)
Impositions................................................................8(A)
Initial Term...............................................................1(B)
Insolvency Laws............................................................5(A)
Insurance Premiums.........................................................8(B)
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DEFINITIONS
TERM SECTION
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Insurance Requirements.......................................................10
Land.......................................................................1(A)
Landlord...............................................................Preamble
Landlord Parties.............................................................19
Landlord's Work............................................................2(B)
Late Charge................................................................1(G)
Laws.........................................................................10
Lease Year.................................................................1(B)
Lender's Consent...........................................................7(B)
Letter of Credit...........................................................1(D)
MDC........................................................................2(D)
Minimum Net Worth..........................................................7(B)
Monetary Default.......................................................12(A)(i)
Non-Monetary Default...................................................12(A)(i)
Operating Expenses.........................................................4(D)
Permittees.................................................................3(C)
Preliminary Plans..........................................................2(E)
Premises...................................................................1(A)
Pro Rata Share.............................................................4(B)
Related Owners.............................................................7(B)
Release......................................................................34
Renewal Rental............................................................29(B)
Rent.......................................................................1(F)
Rent Commencement Date.....................................................1(B)
Revised Preliminary Plans..................................................2(E)
Security Deposit...........................................................1(D)
Stated Term................................................................1(B)
Structure..................................................................3(C)
Tenant.................................................................Preamble
Tenant Liens...............................................................3(G)
Tenant Equipment.............................................................35
Tenant Successor...........................................................7(C)
Tenant's Monthly Share.....................................................4(E)
Tenant's Use...............................................................3(A)
Tenant's Work..............................................................2(D)
TI Allowance...............................................................2(D)
TI Architect...............................................................2(D)
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DEFINITIONS
TERM SECTION
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Transfer Conditions........................................................7(B)
Transfer Evidence..........................................................7(B)
Working Drawings...........................................................2(E)
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LEASE
THIS LEASE AGREEMENT, made this 26th day of July, 2000, by and between
WESTPHALIA CENTER II LIMITED PARTNERSHIP, a Maryland limited partnership
(hereinafter referred to as "Landlord"); and LARGE SCALE PROTEOMICS CORPORATION,
a Delaware corporation (hereinafter referred to as "Tenant").
WITNESSETH:
1. DEMISED PREMISES; TERM OF LEASE; RENTAL; SECURITY DEPOSIT;
HOLDOVER; ADDITIONAL RENT; LATE CHARGE.
(A) DEMISED PREMISES. The Landlord, for and in consideration of
the rents, agreements and covenants herein agreed to be paid, observed and
performed by the Tenant, has let and demised, and by these presents does lease
unto the Tenant, and the Tenant does hereby take and rent from Landlord,
BUILDING #7 in SENECA MEADOWS CORPORATE CENTER (the "Building") located on LOT
5, BLOCK B in the subdivision known as Seneca Meadows Corporate Center in
Montgomery County, State of Maryland (the "Land"), said demised premises being
known and described as 20439, 20441, 20443, 20445, 20447, 20449 & 20451
GOLDENROD LANE, GERMANTOWN, MARYLAND 20876 (hereinafter referred to as the
"Demised Premises" or the "Premises") having an approximate area of 53,054
SQUARE FEET (including a core factor of approximately 1.77%), all as more
particularly shown and outlined on the drawing of said Demised Premises attached
hereto as EXHIBIT "A", initialed by the parties and made a part hereof.
(B) TERM OF LEASE. The term of this Lease shall commence on the
date of the final execution of this Lease (herein referred to as the
"Commencement Date") . The date on which rental shall become due and payable
(hereinafter referred to as the "Rent Commencement Date") shall be the earlier
to occur of (i) issuance of a Certificate of Use and Occupancy for the Demised
Premises, or (ii) JANUARY 1, 2001. The term of the Lease shall expire without
notice of any kind at midnight on the day immediately preceding the TENTH (10TH)
anniversary of the Rent Commencement Date Tenant agrees to execute and return to
Landlord within ten (10) days of receipt a statement as furnished by Landlord
setting forth the Commencement Date, the Rent Commencement Date and the
expiration date of the term of the Lease. The initial term of this Lease is
herein referred to as the "Stated Term" or "Initial Term". The term "Lease Year"
shall mean each period of twelve (12) consecutive months during the term hereof
or any renewal term commencing on the Rent Commencement Date.
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(C) RENTAL. During each respective Lease Year of the Stated Term
of this Lease, the Tenant agrees to pay to Landlord as basic annual rental for
the Demised Premises, the amount specified for that Lease Year in the following
table, such amount (the "Basic Annual Rental") to be due and payable in equal
monthly installments (the "Basic Monthly Rental") during such Lease Year in
advance and without deduction, set off, or demand, except as otherwise provided
herein, on the 1st day of each calendar month in such Lease Year, namely:
Basic Monthly Basic Annual
Lease Year Rental Rental
---------- ------------ ------------
1st $ 59,686.00 $ 716,232.00
2nd 61,477.00 737,724.00
3rd 63,321.00 759,852.00
4th 65,221.00 782,652.00
5th 67,177.00 806,124.00
6th 69,192.00 830,304.00
7th 71,268.00 855,216.00
8th 73,406.00 880,872.00
9th 75,608.00 907,296.00
10th 77,877.00 934,524.00
In addition to said Basic Monthly Rental, Tenant shall pay to Landlord, at the
times and in the manners hereinafter indicated, the additional items and amounts
specified in Section 4 hereof for utility charges and Operating Expenses, and in
Section 8 hereof for Impositions and Insurance Premiums, plus such other sums as
are required to be paid by Tenant pursuant to the terms of this Lease. ALL
RENTALS AND OTHER SUMS PAYABLE BY TENANT HEREUNDER SHALL BE PAID TO LANDLORD AT
9108 GAITHER ROAD, GAITHERSBURG, MARYLAND 20877, or to such other party and
address as Landlord may from time to time designate to Tenant in writing. Upon
execution of this Lease, Tenant will pay to Landlord the sum of FIFTY-NINE
THOUSAND SIX HUNDRED EIGHTY-SIX AND 00/100 DOLLARS ($59,686.00) covering Basic
Monthly Rental for the 1ST MONTH of the Stated Term. Regarding all of Tenant's
covenants, obligations and duties to make Rental and other payments and to
perform its other agreements contained in this Lease, time is agreed to be of
the essence.
(D) SECURITY DEPOSIT. The Tenant further agrees to deliver to
Landlord, on the Commencement Date of the Initial Term hereof (as established
pursuant to Paragraph 1(B) above), either (i) an irrevocable, unconditional
commercial bank letter of credit, payable upon sight in the amount of SEVEN
HUNDRED SIXTEEN THOUSAND TWO HUNDRED THIRTY-TWO AND 00/100 DOLLARS ($716,232.00)
(the "Letter of Credit") in substantially the form attached hereto as EXHIBIT
"D" and initialed by the parties, or such other form reasonably acceptable to
Landlord, issued by a federally-insured national bank having offices in the
Metropolitan Area of Washington, D.C. (Landlord will accept a qualified
out-of-town bank that makes arrangements which are acceptable to Landlord with a
qualified corresponding bank in the Metropolitan Area of Washington, D. C.), or
(ii) a certificate of deposit issued by a commercial bank in the amount of SEVEN
HUNDRED SIXTEEN THOUSAND TWO
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HUNDRED THIRTY-TWO AND 00/100 DOLLARS ($716,232.00) (the "Certificate of
Deposit"). The Letter of Credit or the Certificate of Deposit are hereinafter
referred to as the "Security Deposit". The Security Deposit shall be reduced by
ONE HUNDRED FORTY-THREE THOUSAND TWO HUNDRED FORTY-SIX AND 40/100 DOLLARS
($143,246.40) for each twelve (12) month period during the first five (5) years
of the Initial Term that Tenant has not been in an Event of Default. However, if
an Event of Default of Tenant occurs at any time after the first five (5) years
of the Initial Term, Landlord, at its option and sole discretion, shall have the
right to require Tenant to furnish to Landlord a Security Deposit in the amount
of the then current Basic Monthly Rental, which Security Deposit shall be
retained by Landlord for the balance of the Stated Term of this Lease. The
Security Deposit shall be for an initial period of at least one (1) year from
the Commencement Date of the Initial Term hereof; and Tenant will deliver to
Landlord at least thirty (30) days before expiration of the Security Deposit a
new Security Deposit or renewal of the original one, renewing the Security
Deposit in the sum required above for successive periods of at least one (1)
year each (or such shorter period which will be identical to the then remaining
term of this Lease plus an additional thirty (30) days thereafter), so that, at
all times that Tenant is required to maintain the Security Deposit, Landlord
shall have in its possession a good Security Deposit in the amount specified
above. In the event Tenant delivers a Certificate of Deposit in lieu of a Letter
of Credit, the Certificate of Deposit shall be in the name of the Landlord (but
reported for income tax purposes as Tenant's income on Tenant's tax
identification number with interest payable at least annually to Tenant). In the
event Tenant delivers a Letter of Credit as the Security Deposit, the Letter of
Credit shall include provision for assignment thereof to any mortgagee with a
collateral assignment of this Lease. Failure of Tenant to timely comply with any
requirements of this Subparagraph 1(D) shall constitute an Event of Default of
Tenant under this Lease. If an Event of Default of Tenant occurs under this
Lease (as defined in Section 12 hereof), said Security Deposit may, at
Landlord's option and discretion (and without waiving any other rights or
remedies of Landlord), be converted to the amount of cash necessary to cure the
Event of Default. Such application shall, however, in no way affect Landlord's
rights to recover from Tenant further damages or loss of Rent which may accrue
by reason of Tenant's defaults under this Lease. Provided an Event of Default of
Tenant does not then exist under this Lease, the balance (if any) of said
Security Deposit not applied to curing the Tenant's defaults shall be refunded
and released to Tenant (without interest) within thirty (30) days after the
expiration of this Lease, provided that Tenant has surrendered to Landlord
possession of the Demised Premises in accordance with the terms of this Lease.
The Security Deposit shall not be construed as advance payment of Rent
hereunder, but shall be considered only as representing a fund made available to
Landlord to secure the prompt and faithful performance by Tenant of its
covenants under this Lease. Tenant shall, within ten (10) days after demand by
Landlord, restore said Security Deposit to the full amount specified above
and/or as required during the term of this Lease, in the event any portion or
all thereof is applied by Landlord to cure an Event of Default of Tenant
hereunder.
(E) HOLDOVER. If Tenant fails to quit and vacate the Demised
Premises at the expiration of the Initial Term (or at the expiration of the
final duly exercised Renewal Term hereof, if any, as the case may be), and if
Landlord accepts payment of rental from Tenant thereafter and thus indicates
that Landlord does not require the Tenant's immediate surrender of possession of
the Demised Premises at such expiration date, then in such event any such
holding over of possession of the Demised Premises by Tenant shall be deemed to
create only a tenancy
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from month-to-month, beginning for same on the day immediately following the
expiration of the then expired term hereof, such monthly hold-over tenancy to be
upon all of the terms, covenants and conditions contained in this Lease, except
that either party by giving to the other at least sixty (60) days prior written
notice may terminate such monthly holdover tenancy (except that Tenant shall not
be entitled to such notice of termination, and hereby waives same, in the event
that Tenant is in an Event of Default under this Lease in any respect beyond any
applicable grace periods). Notwithstanding the foregoing provisions of this
paragraph, if Landlord desires possession of the Demised Premises at the end of
the term hereof, then Landlord may so notify Tenant at any time prior to
accepting monthly holdover rent, in which event Tenant covenants and agrees to
surrender to Landlord possession of the Demised Premises at the end of the term
hereof free of subleases and occupants, and if Tenant fails to do so it shall be
deemed an Event of Default under this Lease and Tenant shall be liable to
Landlord for all reasonable, actual losses, costs, damages and expenses Landlord
incurs from Tenant's failure to vacate the Demised Premises as prescribed above.
If the provisions of the preceding sentence become applicable, Tenant shall pay
Landlord use and occupancy payments for each month or portion thereof Tenant
wrongfully holds over possession of the Demised Premises in whole or part, in an
amount equal to ONE HUNDRED FIFTY PERCENT (150%) of the Basic Monthly Rental
payable in the last month of the term hereof (in addition to Landlord being
entitled to exercise all available legal and equitable remedies). Landlord
hereby notifies Tenant that Landlord desires and intends that Tenant remove
from, quit and vacate the Demised Premises at the expiration of the term of this
Lease, and Tenant hereby agrees to do so and hereby irrevocably waives any and
all rights to notice from Landlord of such intent as provided in Title 8,
Section 8-402(b) of the Real Property Volume of the Annotated Code of Maryland,
as amended, or under any similar statute now or hereafter enacted.
(F) ADDITIONAL RENT. Whenever it is provided by the terms of
this Lease that Tenant is required to make any payment to Landlord other than a
payment of Basic Monthly Rental (such as the additional items and amounts
specified in Section 4 hereof for utility charges and Operating Expenses and in
Section 8 hereof for Impositions and Insurance Premiums, or amounts to reimburse
Landlord for legal costs and attorneys' fees, or for any other such sums), such
payment shall be deemed to be a payment of "Additional Rent". Unless otherwise
expressly specified herein, Additional Rent shall be paid by Tenant by the later
of (i) the next installment of Basic Monthly Rental thereafter falling due or
(ii) within thirty (30) days after request therefor. For all purposes of this
Lease, the term "Rent" shall be deemed to be a reference to both Basic Monthly
Rental and Additional Rent. Landlord shall have the same remedies for default in
the payment of Additional Rent as are available to Landlord in the case of
default in the payment of Basic Annual Rental or Basic Monthly Rental.
(G) LATE CHARGE. In the event Tenant does not pay any
installment of Rent or Additional Rent or any other sums when and as the same
become due and payable under this Lease, and if such payment is not made within
TEN (10) DAYS after the due date thereof, Tenant shall pay to Landlord, as
Additional Rent hereunder, in addition to the unpaid amount, a "Late Charge"
equal to five percent (5%) of the unpaid amount to compensate Landlord for the
additional expense resulting from Tenant's failure to make payment in accordance
with the terms of the Lease. If Tenant fails to make any payment due under this
Lease within the aforesaid ten (10) day grace period more than twice in any
Lease Year, then the Late Charge shall increase
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thereafter for the balance of that Lease Year, for all late payments, to be ten
percent (10%) of the unpaid amount, and such increased Late Charge shall be
payable as aforesaid.
2. TENDER OF POSSESSION; LANDLORD'S WORK; BUILDING SHELL; TENANT
IMPROVEMENT ALLOWANCE; TENANT'S WORK.
(A) TENDER OF POSSESSION. If Landlord shall be unable to deliver
to Tenant possession of the Demised Premises (in the condition as called for in
Paragraph 2(B) hereof) on the Commencement Date of the Stated Term hereof by
reason of the fact that the Demised Premises are located in the Building which
is to be constructed and the Building has not been sufficiently completed to
make the Demised Premises ready for delivery to Tenant as called for in
Paragraph 2(B) hereof, or if the Landlord is unable to give Tenant possession of
the Demised Premises on the Commencement Date of the Stated Term hereof by
reason of the holding over or retention of possession by any tenant or occupant,
or for any other reason, Landlord shall not be subject to any liability for the
failure to give possession on said date. Under such circumstances, the Rent
herein reserved and covenanted to be paid by Tenant shall abate and not commence
to be due and payable until Landlord delivers to Tenant possession of the
Demised Premises as called for in Paragraph 2(B) hereof; and no such failure of
Landlord to deliver possession on the Commencement Date of the Stated Term shall
affect the validity of this Lease or otherwise affect the obligations of Tenant
hereunder, except that in such event the date of expiration of the Stated Term
hereof shall be extended by the same number of days that shall elapse from the
Commencement Date specified in Paragraph 1(B) until the end of the calendar
month in which possession of the Demised Premises is delivered to Tenant as
called for in Paragraph 2(B), such delivery date to be established by written
notice from Landlord to Tenant. If permission is given by Landlord to Tenant to
enter into the possession of all or a portion of the Demised Premises, or to
occupy space other than the Demised Premises, prior to the Commencement Date of
this Lease, Tenant covenants and agrees that such occupancy shall be deemed to
be under all the terms, covenants, conditions and provisions of this Lease
except as may be otherwise agreed in writing by Landlord and Tenant. If Landlord
is prevented from or delayed in delivering possession of the Demised Premises to
Tenant in the condition called for in Paragraph 2(B) hereunder due to any Tenant
Delays (as hereinafter defined), then the Commencement Date of the Lease shall
be the date, as reasonably determined by Landlord, that the Demised Premises
could have been delivered to Tenant absent the Tenant Delays. If Tenant is able
to obtain a temporary Certificate of Use & Occupancy from the Montgomery County
Department of Permitting Services that allows Tenant to occupy a portion of the
office space in the Premises prior to the Rent Commencement Date, Landlord
agrees that during such partial occupancy, no Basic Annual Rental shall be due
and payable by Tenant. However, Tenant shall be responsible for its Pro Rata
Share of the Operating Expenses, Impositions and Insurance Premiums (all as
defined below) incurred by Landlord during the time of such partial occupancy.
(B) LANDLORD'S WORK. The Tenant agrees to accept possession of
the Demised Premises, when delivered by Landlord as provided in this
Subparagraph 2(B), for the term herein created, upon the agreements and
covenants herein expressed, and does hereby covenant and agree that Tenant shall
pay unto Landlord the rents, taxes, insurance, expenses, repairs and other costs
and charges called for or reserved in this Lease, at the time or times the same
are due and payable as herein specified. The Demised Premises shall be delivered
by
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Landlord to Tenant, and shall be accepted by Tenant, with the "Landlord's Work"
(as described on EXHIBIT "C" attached hereto, initialed by the parties and made
a part hereof) Substantially Complete( as defined herein), as established by the
notice from Landlord to Tenant mentioned in Paragraph 2(A) above. Such notice
from Landlord shall indicate the commencement and expiration dates of the Stated
Term of this Lease.
(C) BUILDING SHELL. Attached hereto as EXHIBIT "C" and made a
part hereof is an outline specification of the "Building Shell" to be
constructed by Landlord at Landlord's sole cost and expense. The Building Shell
shall be constructed from contract plans and specifications prepared by
Landlord's professional design consultants, a list of which is included in
Exhibit "C".
(D) TENANT IMPROVEMENT ALLOWANCE. Landlord shall grant Tenant a
one-time allowance of ONE MILLION THREE HUNDRED TWENTY-SIX THOUSAND THREE
HUNDRED FIFTY AND 00/100 DOLLARS ($1,326,350.00) (the "TI Allowance") to be used
by Tenant to construct leasehold improvements in the Demised Premises ("Tenant's
Work") as detailed in the plans and specifications to be prepared by GAUDREAU,
INC. ("TI Architect"). The TI Allowance may be used for any improvements
classified under generally accepted accounting principles as leasehold
improvements (or real property), but not for improvements classified as
furniture, fixtures and equipment (or personal property). The TI Allowance may
be used for leasehold improvements such as roof mounted HVAC systems, ductwork
and equipment, clean water systems, plumbing, restroom fixtures, electric water
coolers, built-in millwork, exhaust ducts, flues and fans, electrical circuitry,
lighting and power distribution systems, generator pads and enclosures, floor
coverings, walls, doors and door hardware, ceilings and gas, vacuum, compressed
air, and other similar central systems. The TI Allowance may not be used for
things such as floor mounted cooling units (and associated condenser units),
autoclaves, glass washing equipment, fume hoods, biosafety cabinets, chemical
storage cabinets, chillers for scientific equipment, generators, PBX control
equipment, telephone and internet systems, security systems, data storage
devices, datacom handling equipment, and fuel tanks. The above lists include
items listed by way of example and not limitation. The TI Allowance may include
the cost of preparing all plans and specifications required to perform Tenant's
Work. Tenant shall be allowed to select a general contractor to perform the
Tenant's Work, provided said general contractor shall be properly licensed,
bonded and of a reputation reasonably acceptable to Landlord. An affiliate of
Landlord, Minkoff Development Corporation ("MDC"), shall act as Landlord's
construction manager to review plans and oversee construction of the Tenant's
Work by the general contractor. MDC shall receive a fee equal to one percent
(1%) of the total cost of the Tenant's Work, which fee shall also be a part of
the TI Allowance. If the entire TI Allowance is not used to construct the
Tenant's Work, Landlord (at its own discretion and as notified to Tenant in
writing within sixty (60) days of the Rent Commencement Date) will apply the
unused portion of the TI Allowance (the "Allowance Credit") either to (1)
provide Tenant with a credit against the next due installment(s) of Rent due
under the Lease, or (2) reduce the Basic Monthly Rental payments specified in
Paragraph 1(C) hereunder by the Amortized Cost (as defined below) of the
Allowance Credit. If the TI Allowance is not sufficient to construct the
Tenant's Work, Tenant shall provide whatever remaining funds are necessary to
complete the Tenant's Work. As used herein, the phrase "Amortized Cost" shall
refer to the sum calculated by amortizing the Allowance Credit over the Initial
Term of the Lease
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at ten percent (10%) per annum. By way of example, for each one dollar ($1.00)
per square foot of Allowance Credit, the Basic Monthly Rental changes by 1.322
cents ($0.01322) per square foot per month. The provisions of this Paragraph
2(D) shall not apply during any renewal term or holdover term. If this Lease is
terminated due to an Event of Default or due to any Events of Bankruptcy, all
allowances granted to Tenant under this Paragraph 2(D) shall form part of the
damages recoverable by Landlord from Tenant as provided in Paragraph 12 (G);
provided, however, that under no circumstances shall Landlord be allowed to
recover any damages for such allowances that are included in any other damages
awarded to and collected by Landlord pursuant to the provisions of this Lease.
(E) TENANT'S WORK. Tenant shall have the right to submit plans
for the Tenant's Work in stages for portions of the Demised Premises. Tenant
shall cause the TI Architect to prepare and deliver to Landlord for Landlord's
or MDC's review preliminary plans (architectural, mechanical, electrical,
plumbing and structural, if necessary) and specifications for the proposed
leasehold improvements (the "Preliminary Plans"). Landlord shall have ten (10)
business days after its receipt thereof (or such additional time as may
reasonably be necessary) to review the Preliminary Plans, request any changes it
deems reasonably appropriate, and indicate on the Preliminary Plans which
portions of the leasehold improvements are to be removed by Tenant prior to the
expiration or termination of the Lease. The TI Architect shall modify the
Preliminary Plans to accommodate Landlord's changes, and resubmit the revised
plans (the "Revised Preliminary Plans") to Landlord for approval. If Tenant or
the TI Architect elect not to make said changes to the Preliminary Plans, then
Landlord shall have the right to require Tenant to perform corresponding
restoration work to effect said changes prior to the expiration or termination
of the Lease. Upon receipt of Landlord's approval of the Revised Preliminary
Plans, the TI Architect shall prepare a complete set of construction drawings
and specifications for the construction of the proposed leasehold improvements
(the "Working Drawings"). The Working Drawings shall be in sufficient detail for
(i) Tenant's general contractor to obtain bids from all trades for and to
perform the work described on the Working Drawings; (ii) Tenant's general
contractor to secure building permits from the requisite governmental
authorities having jurisdiction over same; and (iii) Landlord or MDC to indicate
the portion of Tenant's Work, if any, which Tenant is to remove by expiration or
termination of the Lease. The Working Drawings shall conform to and be
consistent with the Revised Preliminary Plans and comply with all applicable
Laws and Insurance Requirements, as those terms are defined in the Lease. The
Working Drawings shall be submitted to MDC for review and approval, which
approval (or a request for changes to be made) shall be given within fifteen
(15) days after receipt thereof. Within five (5) business days after MDC's
approval of the Working Drawings, as modified by any revisions requested by MDC,
Landlord and Tenant shall initial same to confirm their mutual approval thereof
(the "Approved Working Drawings"). The Approved Working Drawings will indicate
which portions of the Tenant's Work, if any, will have to be removed by Tenant
prior to the expiration or termination of the Lease, and Tenant will timely
comply with such requirement and repair any damage to the Land or the Building
caused thereby at its own expense. Tenant will have no obligation to remove any
other portion of the Tenant's Work.
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3. USE OF PREMISES; TENANT RESPONSIBILITIES; REPAIRS AND
MAINTENANCE; INTERIOR ALTERATIONS; EXTERIOR
MODIFICATIONS; SURRENDER OF POSSESSION; MECHANICS LIENS.
(A) USE OF PREMISES. Tenant covenants and agrees to use the
Demised Premises only as and for the conduct and operation of an OFFICE, STORAGE
AND LABORATORY FACILITY FOR TENANT'S BUSINESS ("Tenant's Use"), such use to be
conducted by Tenant at its own expense in compliance with all applicable Laws
and Insurance Requirements as defined in Section 10 and all provisions of this
Lease, and for no other purpose without the express written consent of the
Landlord, which consent shall be in Landlord's exclusive discretion. The current
I-3 zoning permits such Tenant's Use.
(B) TENANT RESPONSIBILITIES. Tenant agrees at its own expense to
maintain the Demised Premises in a clean, neat and orderly manner and to keep
the Demised Premises free of rodents and insects and to furnish regular pest
inspection services and exterminating services, if required. Tenant shall be
solely responsible, at its own cost and expense, and will provide when and as
necessary, all services typically required within the Demised Premises (except
as may be specified in Section 4 hereof) including but not limited to janitorial
service, restroom and break room supplies, interior window cleaning, light bulb
and ballast replacement, flooring maintenance, and any other services
customarily required by the Tenant's use of the Demised Premises. In no event
shall Landlord be obligated to provide, pay for or contribute to the cost of any
of these services in or for the Demised Premises. Tenant further agrees that it
will not, under any circumstances, display or permit to accumulate for an
extended period of time any merchandise, boxes or other articles on the
driveways, parking areas, streets or sidewalks in front of or adjacent to the
Demised Premises. Tenant shall not maintain a nuisance in or about the Demised
Premises, and will conduct its business at the Demised Premises, and have its
Permittees conduct themselves, in such a manner so as not to interfere with nor
unreasonably disturb other tenants' quiet possession of, or conduct of normal
business at, their leased premises. Tenant shall not burn any trash in or
outside the Demised Premises, nor install an incinerator or trash destructor in
or outside of said Demised Premises.
(C) REPAIRS AND MAINTENANCE. Except for the specific repairs,
maintenance and replacements to be made by Landlord pursuant to this Lease, in
all other respects the Tenant will, during the full term of this Lease, at its
own expense, promptly make all repairs and perform all acts of maintenance
necessary to keep the Demised Premises and all improvements, equipment and
utility lines therein and all other elements thereof in good condition and
repair, including also without limitation all maintenance, repairs and
replacements, excepting only for repairs to the structure and to any utility
lines located outside of the "Structure" (as defined below) of the Demised
Premises (such lines hereinafter called "Exterior Utility Lines"); unless such
repairs of the Structure or of the Exterior Utility Lines are necessitated by
any acts, omissions or negligence of Tenant or its assignees or subtenants or
its or their agents, employees, contractors, invitees, licensees, customers or
subtenants ("Permittees"), in any of which events Tenant at its own expense (but
subject to the recovery of any applicable insurance proceeds) shall make such
repairs and replacements of the Structure and Exterior Utility Lines promptly
when necessary (or, if requested by Landlord, Tenant will reimburse Landlord for
the costs of such repairs and replacements within thirty (30) days of demand
therefor). Said repairs to the Structure and Exterior Utility Lines shall be
made by
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Landlord (except as otherwise provided in the preceding sentence) as promptly as
commercially practicable after receipt of written notice from Tenant to Landlord
of the necessity therefor. Tenant shall give Landlord prompt notice of any fire,
accident, defects, damage or injury occurring at, in or to the Demised Premises
and of any death, damage or serious injury to persons therein, but nothing
herein contained shall be construed to require Landlord to make any repairs to
said Demised Premises or to provide compensation for any such damage or injury,
except as otherwise expressly herein provided. For purposes of this Paragraph
3(C) and of all other provisions of this Lease, the term "Structure" shall refer
to the foundations, structural frame, exterior walls and glazing, ground floor
slab and roof of the Building, and the term "Exterior Utility Lines" shall refer
to all electrical, plumbing, and sewage systems and lines (including but not
limited to gas, telephone and fiber optic) located outside of the Structure of
the Demised Premises. Tenant, at its own expense, will make all repairs,
maintenance and replacements promptly when and as necessary for the heating,
ventilating and air-conditioning systems and equipment which serve only the
Demised Premises ("HVAC"). Tenant at its own expense will keep in force
throughout the term of this Lease a contract for maintenance of the HVAC serving
the Demised Premises with a competent, licensed mechanical contractor reasonably
acceptable to Landlord. Tenant shall cause the HVAC to be maintained in good
condition by such mechanical contractor.
(D) INTERIOR ALTERATIONS. Except for ordinary office decorations
(that are not leasehold improvements), any partitioning, painting, installation,
removal or alteration of utility lines, flooring, paneling, mechanical equipment
(heating, ventilating or air conditioning), plumbing, electrical, gas, water,
sewer, interior, exterior, roof or other alterations, changes or additions to
the Demised Premises which Tenant may desire to perform or make (the
"Alterations") shall be subject to the following conditions, namely: (i) no such
Alterations shall be done without Landlord's express prior written consent in
each instance; (ii) complete plans and specifications and a cost estimate for
any such Alterations (if reasonably required due to the nature of the work
contemplated) shall be submitted to Landlord and Landlord's written approval
thereof obtained prior to commencement of such Alterations (which Alterations
shall be done in strict compliance with such plans and specifications if and as
so approved); (iii) the Alterations are to be done in compliance with all
applicable governmental laws, codes, orders and regulations, without any damage
to the Demised Premises or the Building of which same are a part or to any
property of Landlord or other tenants, free of liens and claims and all at
Tenant's sole cost and expense; (iv) Tenant is to promptly discharge and to
indemnify and save Landlord harmless from all liens and claims arising from such
Alterations; and (v) if so requested by Landlord at the time of approval, the
Tenant will remove such Alterations and restore the Demised Premises to their
condition prior thereto by not later than the expiration or termination of this
Lease. Landlord's consent for the Alterations shall be deemed to have been
granted if Landlord fails to respond to Tenant's written request to make the
Alterations, when submitted as required above, within two (2) business days for
Alterations estimated to cost less than $10,000.00 or within seven (7) business
days for Alterations estimated to cost more than $10,000.00. Notwithstanding the
foregoing, Tenant shall have the right to make cosmetic alterations such as
painting (other than black or similarly dark colors), and carpeting throughout
the Stated Term of this Lease. Landlord shall incur no liability by approving or
not approving Tenant's plans, specifications or work (such actions by Landlord
and approvals and conditions imposed for Tenant's approval being solely for its
own benefit and not being any assurance by
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Landlord as to the legality or technical sufficiency or safety of Tenant's
plans, specifications or work). It is agreed that all work, materials,
machinery, apparatus, leasehold improvements and other installations and
alterations to the Demised Premises including, without limitation, partitions,
interior and exterior doors and door opening machinery, lighting and plumbing
fixtures, flooring, wall and window coverings, mechanical equipment for the
Building, utility lines and equipment, loading facilities, elevators, and other
items of any kind (except only Tenant's merchandise, laboratory, computer and
office equipment, trade fixtures, furniture and movable personal property),
whether installed by Landlord or Tenant, shall at all times belong solely to
Landlord and shall not be removed by Tenant; except for such alterations and
installations made by Tenant which the Landlord requests Tenant to remove at the
expiration or termination hereof. It is also agreed that all intellectual
property, biological samples, scientific instrumentation, computers, routers,
storage devices, servers, software, data, databases, and such other things
pertaining to Tenant's business, research, design and development activities (or
those of Tenant's collaborators, clients or affiliates) shall at all times
belong solely to Tenant (or to Tenant's collaborators, clients or affiliates, as
the case may be).
(E) EXTERIOR MODIFICATIONS. Tenant will not make any
alterations, modifications, changes or additions to any part of the exterior of
the Building, nor to the Structure, without in each case having obtained
Landlord's express prior written approval thereof (which consent shall be in
Landlord's exclusive discretion). Tenant will not paint, nor permit to be
painted, any stone work, cornice work, iron work, or brick work on the front or
exterior of the Demised Premises or other exterior elements of the Demised
Premises or Building, without the prior written consent of the Landlord.
(F) SURRENDER OF POSSESSION. At the expiration or any
termination of this Lease, or of any hold-over term, Tenant shall surrender and
deliver to Landlord possession of the Demised Premises in the same good
condition in which they were delivered at the commencement of the term hereof
(with such alterations as may have been approved by Landlord in writing and
which Landlord does not require to be removed when Landlord grants its
approval), reasonable wear and tear and damage by casualty and condemnation
excepted, broom clean with all of Tenant's merchandise and personal property
removed therefrom, and free of subleases and occupants. Tenant shall deliver to
Landlord keys to all doors at the Demised Premises. Also by the expiration of
the Lease, Tenant shall deliver to Landlord a copy of an inspection report,
prepared by Tenant's mechanical contractor within thirty (30) days of the
expiration of the Lease, stating that the HVAC is in good operating condition.
In the event Tenant fails to maintain the Demised Premises and HVAC as provided
in Paragraph 3(C) above, or if Tenant fails to restore the Demised Premises by
the expiration of the Lease as required hereunder, then Tenant shall be liable
for all reasonable third party costs and expenses incurred by Landlord therefor,
and Tenant shall pay Landlord the actual costs incurred by Landlord to repair
the Demised Premises and HVAC and/or restore the Demised Premises plus ten
percent (10%) for Landlord's overhead costs.
(G) MECHANICS LIENS. Tenant shall have no right to (and agrees
not to) subject the Demised Premises or the Building to any mechanic's or
materialmen's liens of any kind for any labor, work, materials or services
ordered by, contracted for or furnished or obtained by Tenant or any Tenant
Permittees (collectively, "Tenant Liens"), nor to pledge the credit of or
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incur any indebtedness or obligations on behalf of Landlord. The Tenant agrees
to indemnify, defend and hold Landlord and the Demised Premises and Building
harmless from, and to remove of record (or bond off) within thirty (30) days
after Tenant's receipt of notice of the filing thereof, all Tenant Liens and
suits to enforce same and all litigation resulting from any breach by Tenant or
any Tenant Permittees of the provisions of this paragraph; and Tenant shall pay
all court costs, reasonable attorneys' fees and other reasonable expenses
incurred by Landlord in connection with any such matters.
4. UTILITY CHARGES; PRO RATA SHARE; COMMON AREAS; OPERATING
EXPENSES.
(A) UTILITY CHARGES. Utility services will be brought to the
Demised Premises or to the appropriate meter room in the Building, as the case
may be, and will be separately metered or submetered (in the case of water
usage), at Landlord's sole cost and expense. During the entire term hereof,
Tenant shall pay, either to the supplying utility company or to the Landlord (in
the case of sub-metered utilities), all utility charges and costs of utility
services of any and every kind and nature, including, but not limited to gas,
oil, water, sewer service, heat, power, fuel, telephone service and electricity,
arising out of or connected with the use and/or occupancy of the Demised
Premises or consumed thereat, promptly as same shall become due and payable, and
Tenant shall promptly make any meter deposits required by the utility companies
therefor.
(B) PRO RATA SHARE. It is expressly stipulated and agreed that
the term "Pro Rata Share" shall be defined and is agreed to mean ONE HUNDRED AND
00/100 PERCENT (100.00%), which percentage is agreed to represent the ratio that
the approximate rentable floor area of the Demised Premises bears to the total
approximate rentable floor area of the entire Building ( 53,054 square feet).
(C) COMMON AREAS. Landlord shall make available "Common Areas",
in the Building and on the Land on which the Demised Premises are situated. The
Common Areas shall include (if applicable), but not be limited to, common
entrance foyers, lobbies, elevators, stairwells, corridors, restrooms, chases,
meter rooms and utility rooms in the Building and parking areas, loading areas,
driveways, sidewalks, landscaped areas, green areas, grounds, plazas and picnic
areas on the Land. Landlord grants to Tenant and to Tenant's Permittees, during
the term of this Lease, the non-exclusive right to use the Common Areas, in
common with Landlord and with others designated by Landlord as being entitled to
use the Common Areas, subject to Landlord's reasonable rules and regulations
established from time to time applicable to all tenants concerning the use and
operation of the Common Areas. Tenant shall comply with and advise its
Permittees to comply with said rules and regulations. Landlord shall operate,
manage, repair, replace and maintain in good condition the Common Areas for
their intended purposes, all in such manner as the Landlord, in its sole
discretion, shall determine, but in all cases, in compliance with all applicable
laws, statutes, ordinances and codes. All Common Areas shall be subject to the
exclusive control of Landlord. Landlord shall have the sole right and exclusive
authority to employ and discharge all personnel with respect thereto; to close
temporarily all or any portion of the Common Areas for the purpose of making
repairs, changes or alterations thereto; to perform necessary maintenance in
connection with any emergency; and
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to maintain security for the Common Areas if deemed necessary by Landlord.
Landlord agrees to make commercially reasonably efforts to minimize any
disruption to Tenant's business while performing any of its obligations herein.
(D) OPERATING EXPENSES. During the term of this Lease, and any
extensions and renewals thereof, Landlord shall operate, manage, repair and
maintain, in a first class manner consistent with other similar buildings in the
Gaithersburg and Germantown, Maryland areas, the Building, the Land and the
Common Areas. Tenant shall, during the entire term of this Lease, pay to
Landlord as Additional Rent, the Tenant's Pro Rata Share of the costs and
expenses incurred by Landlord in operating, managing, repairing and maintaining
the Building, the Land and the Common Areas, collectively referred to as
"Operating Expenses". Said Operating Expenses shall include, but not be limited
to, costs and expenses for: (i) removal of snow, ice, trash, rubbish and debris
from the Common Areas; (ii) furnishing and maintaining electric service (and
elevator service, if any) to the Building and the lighting of the Common Areas;
(iii) charges for furnishing and maintaining water and sewer service or other
utility services to the Building and the Land; (iv) trimming and grass cutting
and all other maintenance and upkeep of the grounds, green areas and landscaping
in the Common Areas; (v) maintaining, monitoring and testing the sprinkler
system and sprinkler alarm system in the Building; (vi) maintaining, striping,
cleaning and repairing the parking areas, driveways and sidewalks; (vii) trash
pick-up and removal by a licensed contractor from containers located in a common
enclosure(s) for the mutual use of all tenants in the Building, as well as the
cost of maintaining and repairing said trash container enclosure(s); (viii)
reasonable property management fees ofthree percent (3%) of gross rentals in the
Building; (ix) maintenance and repairs to the exterior of Building, including,
without limitation, exterior windows, doors, hardware, locks, lighting and
lighting fixtures; (x) premiums incurred by Landlord, if any, for hazard,
liability, workmen's compensation or similar insurance on contractors providing
services to the Building, Land or Common Areas; and (xi) any other costs and
maintenance expenses for the Building, Land, Common Areas and all appurtenances
thereto as may be deemed reasonably necessary by Landlord which under generally
accepted accounting principles properly constitute operating or maintenance
costs and expenses attributable thereto.
Operating Expenses shall not include any of the following: (i)
the cost of the original construction of the Building or any additions or
expansions to the Building, Common Areas or other items which under generally
accepted accounting principles are properly classified as capital expenditures;
(ii) any repairs or work performed to any portion of the Building intended to be
occupied by individual tenants; (iii) the cost of correcting any defects in the
original construction of the Building and Common Areas; (iv) any reserves for
future expenditures not yet incurred; (v) ground lease rental; (vi) costs
incurred by Landlord for repair or restoration to the extent that Landlord is
reimbursed by insurance or condemnation proceeds or that the same is covered by
warranty; (vii) attorneys' fees, leasing commissions and other costs and
expenses incurred in connection with negotiations or disputes with present or
prospective tenants or other occupants of, or persons, firms or entities with
respect to, the Building; (viii) costs incurred by Landlord due to the
negligence or misconduct of Landlord or its agents, contractors, licensees and
employees, or the violation by Landlord of the terms and conditions of this
Lease; (ix) interest, principal points and fees on debts or amortization on any
mortgage or mortgages or any other debt instrument encumbering all or any
portion of the
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Building or the Land on which the Building is located; (x) advertising and
promotional expenditures in connection with leasing the Building, and costs of
the installation of signs identifying the owner and/or manager of the Building;
(xi) any costs relating to hazardous materials, asbestos and the like not
resulting from actions of Tenant; (xii) any charges for depreciation of the
Building, or equipment (except costs of and depreciation of equipment installed
or improvements made to reduce Operating Expenses); (xiii) any charge for
Landlord's income taxes, excess profit taxes, or franchise taxes; (xiv)
Landlord's general overhead attributable to the activities of Landlord's
officers; (xv) expenses incurred by Landlord solely in its capacity as a
partnership or other business entity; (xvi) costs, fines or penalties incurred
due to violation by Landlord of any laws or governmental rules and regulations,
except as incurred by Landlord in successfully challenging any such law, rule or
regulation for the Building or the Land; and (xvii) any costs and expenses paid
to subsidiaries of Landlord, entities under common control with Landlord, or
persons related to Landlord for services on or to the Building, but only to the
extent that such costs and expenses exceed normal costs and expenses for such
services provided by unaffiliated parties to owners of similar buildings in the
Gaithersburg and Germantown areas. There shall not be duplication in charges to
Tenant by reason of the provision setting forth Tenant's obligation to reimburse
Landlord for Operating Expenses and any other provision in this Lease.
(E) STATEMENT OF OPERATING EXPENSES.
(1) Prior to December 1st of a particular calendar year,
Landlord shall make a reasonable estimate of the Operating Expenses for the next
calendar year (the "Expense Estimate"), and will furnish Tenant a written
statement setting forth in reasonable detail the estimate of those Operating
Expenses (the "Expense Notice"). For each calendar month of that next calendar
year (beginning with January 1st after the date of the Expense Notice), Tenant
shall pay to Landlord, as Additional Rent hereunder, one-twelfth (1/12th) of
Tenant's Pro Rata Share of the Expense Estimate (the "Tenant's Monthly Share")
in advance, without deduction, set off or demand on the 1st day of each calendar
month with Tenant's payment of Basic Monthly Rental.
(2) Within sixty (60) days after the end of the calendar
year for which the Expense Estimate was made, Landlord shall furnish Tenant a
statement setting forth in reasonable detail the actual Operating Expenses
incurred by Landlord for the previous calendar year (the "Actual Expenses"). If
the Actual Expenses are greater than the Expense Estimate, Landlord may increase
Tenant's Monthly Share for the ensuing calendar year to reflect the Actual
Expenses, and Tenant will pay to Landlord, as Additional Rent within thirty (30)
days after written demand therefor, Tenant's Pro Rata Share of the difference
between the Actual Expenses and the Expense Estimate. If the Actual Expenses are
less than the Expense Estimate, either Landlord will reduce Tenant's Monthly
Share for the ensuing calendar year, or Landlord will credit Tenant's
overpayment for Operating Expenses against the next due payment(s) of Tenant's
Monthly Share and/or Basic Monthly Rental.
(3) Tenant or its agent shall have the right, for a
period of one (1) year after Tenant's receipt of the statement of Actual
Expenses for the respective calendar year and upon giving reasonable notice to
Landlord and during normal business hours, to review and inspect all of
Landlord's bills, invoices and records applicable to the Actual Expenses or to
the
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Expense Estimate for that particular calendar year in order to verify the
Operating Expenses. If the Landlord and Tenant determine after said review that
an error of more than five percent (5%) has been made and the Tenant has been
overcharged for Operating Expenses, then Landlord will refund the amount of the
overcharge to Tenant plus interest at the rate of eight percent (8%) per annum
within thirty (30) days after such determination. Under no circumstances will
Landlord be responsible to Tenant for Tenant's cost of said review of the
Operating Expenses.
(4) Tenant's obligation to pay Landlord its Pro Rata
Share of the Operating Costs hereunder shall survive any expiration or
termination of the Lease, and shall be adjusted and pro-rated for any portion of
a calendar year occurring during the first or last Lease Year of the term
hereof.
5. BANKRUPTCY.
(A) For purposes hereof, the following shall be deemed "Events
of Bankruptcy" of Tenant: (i) if Tenant becomes "insolvent", as defined in Title
11 of the United States Code, entitled "Bankruptcy", 11 U.S.C. Section 101 et
seq. (hereinafter called the "Bankruptcy Code"), or under the insolvency laws of
any state, district, commonwealth or territory of the United States of America
("Insolvency Laws"); or (ii) if a receiver or custodian is appointed for all or
substantially all of Tenant's property or assets, or if there is instituted a
foreclosure action on all or substantially all of Tenant's property; or (iii) if
Tenant files a voluntary petition under the Bankruptcy Code or Insolvency Laws;
or (iv) if there is filed an involuntary petition against Tenant as the subject
debtor under the Bankruptcy Code or Insolvency Laws, which is not dismissed
within sixty (60) days of filing, or results in issuance of an order for relief
against the debtor; or (v) if Tenant makes or consents to an assignment of all
or substantially all of its assets for the benefit of creditors, or a common law
composition of creditors.
(B) Upon the occurrence of an Event of Bankruptcy, or if Tenant
becomes insolvent pursuant to any Insolvency Laws, then in any such event
Landlord at its option and sole discretion may terminate this Lease by written
notice to Tenant (subject, however, to applicable provisions of the Bankruptcy
Code or Insolvency Laws during the pendency of any action thereunder involving
Tenant as the subject debtor). If this Lease is terminated under this paragraph,
Tenant shall immediately surrender and vacate the Demised Premises, waives all
statutory or other notice to quit, and agrees that Landlord's obligations under
this Lease shall cease from such termination date, and Landlord may recover
possession by process of law or in any other lawful manner. Furthermore, if this
Lease terminates under this paragraph, Landlord shall have all rights and
remedies against Tenant provided in case of defaults of Tenant in payment of
rent.
(C) If Tenant becomes the subject debtor in a case pending under
the Bankruptcy Code, Landlord's right to terminate this Lease under this
paragraph shall be subject to the applicable rights (if any) of the Trustee in
Bankruptcy to assume or assign this Lease as then provided for in the Bankruptcy
Code. However, the Trustee in Bankruptcy must give to Landlord and Landlord must
receive proper written notice of the Trustee's assumption or rejection of this
Lease within sixty (60) days after the date of the Trustee's appointment; it
being agreed that failure of the Trustee to give notice of such assumption
hereof within said sixty (60)
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days period shall conclusively and irrevocably constitute the Trustee's
rejection of this Lease and waiver of any rights of the Trustee to assume or
assign this Lease. The Trustee shall not have the right to assume or assign this
Lease unless said Trustee (i) promptly and fully cures all defaults under this
Lease, (ii) promptly and fully compensates Landlord for all monetary damages
incurred as a result of such default, and (iii) provides to Landlord "Adequate
Assurance of Future Performance", (as defined herein below). Landlord and Tenant
hereby agree in advance that "Adequate Assurance of Future Performance", as used
in this Paragraph, shall mean that all of the following minimum criteria must be
met: (a) the Tenant or the Trustee must pay to Landlord, at the time the next
payment of Rent is then due under this Lease, in addition to such payment of
Rent, an amount equal to the next four (4) months Rent due under this Lease,
said amount to be held by Landlord in escrow until either the Trustee or Tenant
defaults in its payment of Rent or obligations under this Lease (whereupon
Landlord shall have the right to draw on such escrowed funds) or until the
expiration of this Lease (whereupon the funds shall be returned to the Trustee
or Tenant within 30 days thereafter, if Tenant is not in default hereunder); (b)
the Tenant or Trustee must agree to pay to Landlord, at any time the Landlord is
authorized to and does draw on the funds escrowed pursuant to clause (a) of this
Subsection 5(C) (iii) the amount necessary to restore such escrow account to the
original level required by said provision; (c) Tenant must pay to Landlord all
rentals and other sums payable by Tenant hereunder including also therein its
share (as estimated by Landlord) of the cost of all services provided by
Landlord (whether directly or through agents or contractors, and whether or not
the cost of such services is to be passed through to Tenant), in advance of the
performance or provision of such services, and (d) the Tenant or Trustee must
agree that the use of the Demised Premises as stated in this Lease will remain
unchanged, and that the assumption or assignment of this Lease will not violate
or affect the rights of other Tenants in the Building. In the event Tenant is
unable to: (i) cure its defaults, (ii) reimburse Landlord for its monetary
damages, (iii) pay the Rents due under this Lease or any other payments required
of Tenant under this Lease on time, or (iv) meet the criteria and obligations
imposed by (a) through (d) above in this Paragraph 5(C), then Tenant hereby
agrees in advance that it has not met its burden to provide Adequate Assurance
of Future Performance, and this Lease may be terminated by Landlord in
accordance with Paragraph 5(B) above. Notwithstanding the above, the Security
Deposit shall count towards the amount required for Adequate Assurance of Future
Performance.
(D) It is further stipulated and agreed that, in the event of
the termination of the term of this Lease by the happening of any such event
described in this Section 5, Landlord shall forthwith, upon such termination,
and any other provision of this Lease to the contrary notwithstanding, become
entitled to recover as and for damages caused by such termination all amounts
permitted by applicable law.
6. INSURANCE.
(A) It is further understood, agreed and covenanted by and
between the parties hereto that the Tenant will be responsible for any claim for
damages arising from injury or any claim of death or injury to persons or damage
to property at or upon said Demised Premises caused or occasioned directly or
indirectly by Tenant's or any Permittees' use or occupancy of said Demised
Premises, and that the Tenant, unless such claim or damage is due to Landlord's
negligence or willful misconduct, will and does hereby agree to defend,
indemnify and hold
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harmless the Landlord, its partners and agents and its and their successors and
assigns from and against any and all liability, damages, expenses, claims,
suits, actions or causes or rights of action arising from or caused by any such
damages or injury or claim for damages or injury (including death) to persons or
property at or upon said Demised Premises during the Initial Term and any
renewal or extension thereof. In confirmation thereof, the Tenant covenants and
agrees that it will at all times during the term of this Lease, at its own
expense, carry and maintain in full force and effect, in companies reasonably
satisfactory to Landlord, Commercial General Liability insurance, with limits of
at least a $1,000,000.00 combined single limit, for bodily injury, including
death, to any one or more person(s) in any single occurrence and for property
damage or in such greater amounts of coverage as Landlord may from time to time
reasonably require, naming the Landlord as additional insured. Each policy shall
contain the Broad Form General Liability Endorsement. Each policy or a
Certificate of Insurance showing the same to be in effect for a one (1) year
period, shall be delivered to Landlord within thirty (30) days of the
Commencement Date, and renewal certificates shall be delivered to Landlord at
least fifteen (15) days prior to expiration of any such policy, and each such
policy shall contain an endorsement requiring at least thirty (30) days prior
written notice to all named insureds as to any cancellation, non-renewal or
adverse modification of any such policy. It is specifically covenanted and
agreed by the Tenant that there shall be no abatement of Rent because of any
damage caused by fire or other peril, except as provided in Section 9. The
amount of such insurance shall not limit Tenant's indemnity obligations under
this Section 6 or under any other provision of this Lease. Tenant's indemnity
obligations under this section and elsewhere contained in this Lease shall
survive expiration or termination of this Lease.
(B) It is further understood, agreed and covenanted by and
between the parties hereto that the Landlord will be responsible for any claim
for damages arising from injury or any claim of death or injury to persons or
damage to property at or upon the Common Areas caused or occasioned directly or
indirectly by Landlord's management of said Common Areas, and that the Landlord
will and does hereby agree to defend, indemnify and hold harmless the Tenant,
its partners and agents and its and their successors and assigns from and
against any and all liability, damages, expenses, claims, suits, actions or
causes or rights of action arising from or caused by and such damages or injury
or claim for damages or injury (including death) to persons or property at or
upon said Common Areas during the Initial Term and any renewal or extension
thereof.
7. SUBLETTING AND ASSIGNMENT.
(A) It is further understood, agreed and covenanted by and
between the parties hereto that the Tenant shall have no right to, and will not,
transfer or assign this Lease, or sublet or transfer possession of said Demised
Premises, or any part thereof, voluntarily, or involuntarily, whether by
operation of law, in bankruptcy or otherwise, without the prior written consent
of the Landlord. If, during any Renewal Term or holdover term, Tenant desires to
assign this Lease or to sublet the entire Demised Premises to other than an
Affiliate or Tenant Successor, as those terms are defined below, then in any
such event, the Landlord shall have the right (and such right is hereby
expressly reserved unto Landlord) in its sole discretion, but not the
obligation, by written notice given to Tenant within twenty (20) days from
Landlord's receipt of a written proposal for such assignment or sublease, to
cancel and terminate this Lease and
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recover possession of the Demised Premises. Any assignment or subletting and any
consent of Landlord thereto shall not release Tenant of any liability under this
Lease, and shall not waive the obligation to obtain Landlord's consent to any
further assignment or subletting. Any assignment or subletting, including the
use of the Demised Premises by the assignee or subtenant, shall be subject to
all of the terms and provisions of this Lease. Tenant shall pay to Landlord, as
Additional Rent within thirty (30) days of demand by Landlord therefor, any
reasonable third party expenses incurred by Landlord with respect to the review
and consent or denial of consent of the foregoing.
(B) Notwithstanding the provisions of Paragraph 7(A) hereof
(except regarding the recapture right of Landlord), Landlord agrees that it will
not delay or condition or withhold unreasonably its consent to a proposed
assignment of this Lease or subletting of all or any portion of the Demised
Premises by Tenant provided that all of the following conditions and all such
other conditions as Landlord reasonably may impose (collectively, the "Transfer
Conditions") are met: (a) Tenant is not in an Event of Default under this Lease
or under any other lease from Landlord or from Related Owners (defined below);
(b) Tenant is not subject to any Events of Bankruptcy; (c) Tenant is in
possession and occupancy of the Demised Premises; (d) the Initial Term of the
Lease and Tenant's payment of Rent hereunder have commenced; (e) (i) the
proposed assignee has a net worth at least equal to the net worth of Tenant as
of the date of this Lease (the "Minimum Net Worth"), (ii) the proposed assignee
or sublessee has a good business reputation and adequate experience in operating
its business, (iii) the proposed assignee or sublessee operates a quality and
type of business which is compatible with the business and type of other tenants
of space in the Building and in Seneca Meadows Corporate Center, (iv) the
proposed assignee or sublessee shall not be a party which has been in default
under any other leases of space owned by nor under any other agreements of any
kind with Landlord or any entities in which Landlord's partners or any of them
have or had ownership interests ("Related Owners"), and (v) the proposed
assignee or sublessee is not a party with whom Landlord or any Related Owners is
or are negotiating a lease of space in the Building or in any other property;
(f) the use of the Demised Premises shall not be changed from the use permitted
in Paragraph 3(A) of this Lease as a result of any such assignment or
subletting; (g) Tenant shall have delivered to Landlord evidence reasonably
satisfactory to Landlord that all Transfer Conditions are or will promptly be
met (the "Transfer Evidence"); (h) the prior written consent (if required) of
Landlord's mortgagees to the proposed assignment or subletting (if required
under the loan documents) shall have been obtained at Tenant's expense and at no
cost to Landlord nor change in provisions of the loan documents (the "Lender's
Consent"); and (i) Tenant shall have delivered to Landlord an instrument of
assignment or sublease (as the case may be) in form and content acceptable to
Landlord's mortgagees and reasonably acceptable to Landlord, executed by the
assignee or sublessee, by which the assignee or sublessee ( to the extent
applicable) assumes all obligations of Tenant under and agrees to be bound by
and comply with this Lease. Nevertheless, if Tenant proposes to sublet the
entire Demised Premises or to assign this Lease (except to an Affiliate of
Tenant or to a Tenant Successor, as defined below), then Landlord shall continue
to have the right, pursuant to Paragraph 7(A) hereof, to cancel this Lease and
recover possession of the Demised Premises. Any such assignment or subletting
consented to by Landlord shall be subject to all terms and provisions of this
Lease, shall not waive the necessity of obtaining Landlord's prior written
consent for any further assignment and subletting, shall not
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relieve or reduce Tenant's primary liability to Landlord under this Lease, and
shall not result in any change in the permitted use of the Demised Premises.
(C) It is further agreed that, provided all Transfer Conditions
are met, Landlord will consent to Tenant's sublease of the Demised Premises to
an Affiliate of Tenant (as defined below) or to assignment of this Lease to a
Tenant Successor (as defined below) subject however to all of the terms and
provisions of this Lease, including but not limited to those contained in
Paragraph 7(B) hereof. The phrase "Affiliate" of Tenant, as used herein, means a
corporation or other legal entity which is under common ownership, management
and/or control with Tenant. For purposes of this Paragraph 7(C), the phrase
"Tenant Successor" shall mean a person or entity who or which acquires and
succeeds to ownership of all, or substantially all, of Tenant's business as a
result of either (i) purchase of all or substantially all of Tenant's assets, or
(ii) purchase of all or substantially all issued and outstanding shares of
capital stock in Tenant (the "Acquisition"). Tenant agrees to provide Landlord
the Transfer Evidence when Tenant requests Landlord's consent to a sublease of
all or a part of the Demised Premises to an Affiliate of Tenant. Tenant agrees
to provide Landlord the Transfer Evidence and evidence of the Acquisition when
Tenant requests Landlord's consent to an assignment of this Lease to the Tenant
Successor. It is further agreed that if Landlord consents to such assignment of
the Lease to the Tenant Successor, and provided that all Transfer Conditions are
met and that the Tenant Successor has a net worth at least equal to the greater
of (a) the net worth of Tenant immediately prior to consummation of the
Acquisition, or (b) the Minimum Net Worth aforesaid, and is not subject to any
Events of Bankruptcy, and provided Tenant has furnished evidence reasonably
satisfactory to Landlord to confirm the financial condition of such assignee
Tenant Successor, and further provided that Lender's Consent (as defined and
under the terms set forth above) to such release of liability has been obtained,
then in such event Landlord will join with Tenant and its Tenant Successor in
executing an instrument reasonably acceptable to Landlord by which (A) Tenant is
released of all liability under this Lease accruing after the effective date of
the assignment hereof to the Tenant Successor (the "Effective Transfer Date"),
and (B) the Tenant Successor assumes all obligations of Tenant under this Lease.
However, no such release instrument shall relieve Tenant of any indemnification
obligations to Landlord under this Lease covering periods prior to the Effective
Transfer Date. Landlord and Tenant agree to use reasonable efforts to obtain the
Lender's Consent described above in Paragraphs 7(B) and 7(C).
(D) With any request for Landlord's consent to an assignment or
subletting, Tenant shall provide Landlord a copy of the proposed instrument of
assignment or sublease in form and content reasonably acceptable to Landlord and
legally binding upon and enforceable against Tenant and the assignee or
sublessee, together with such additional information as Landlord reasonably may
require.
8. PAYMENT OF REAL ESTATE TAXES AND INSURANCE COSTS.
(A) Tenant covenants and agrees that it will, during the entire
term of this Lease, pay to Landlord as Additional Rent hereunder, in addition to
the Basic Annual Rental payable under Paragraph 1(C) hereof, the Operating
Expenses payable to Landlord under Section 4 hereof and the other sums payable
by Tenant under the Lease, within THIRTY (30) DAYS after each and every demand
by Landlord therefor, the Tenant's Pro Rata Share of any and all real estate
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taxes and assessments and similar impositions, general and special, ordinary and
extraordinary, which may be levied, assessed or payable (for or allocable to
periods of time within the term of this Lease and any renewal, extended and
holdover term), upon the Building in which the Demised Premises are situated
and/or the Land serving and/or on which is erected said Building, and including
also all reasonable fees and expenses of attorneys, accountants and consultants
and other expenses including but not limited to court costs and appeals,
incurred by Landlord in contesting any such items (collectively, the
"Impositions"). The amount of said Impositions (of which Tenant is to pay its
Pro Rata Share, as aforesaid) as shown on the government-issued tax bills or
assessment notices, shall be deemed conclusive evidence of the amount of said
Impositions. If the amount of the Impositions payable by Landlord on the
Building and Land is reduced by any abatement attributable to Tenant's occupancy
of the Demised Premises, such as the Miller Legislation, then Tenant shall
receive the full amount of said abatement attributable to its occupancy.
Landlord agrees that Tenant shall have the right to appeal any assessments or
Impositions at Tenant's sole cost and expense in the event Landlord declines to
do so; in which event, Landlord agrees to promptly notify Tenant of its decision
and to provide Tenant reasonable assistance during such Tenant's appeal.
(B) Tenant hereby further covenants and agrees that it will,
during the entire term of this Lease, pay to Landlord as Additional Rent
hereunder, in addition to the Basic Annual Rental payable under Paragraph 1(C)
hereof, the Operating Expenses payable to Landlord under Section 4 hereof and
the other sums payable by Tenant under the Lease, within THIRTY (30) DAYS after
each and every demand by Landlord therefor, the Tenant's Pro Rata Share of any
and all premiums, costs, deductibles and other charges and expenses incurred,
paid, accrued or absorbed by Landlord for or in connection with all policies of
fire, extended coverage, hazard and general liability insurance and other
insurance carried or maintained by Landlord on the Demised Premises and/or the
Building and Land of which they form a part (collectively, the "Insurance
Premiums"). The insurance which Landlord shall carry and with respect to which
Tenant shall make said payments shall include without limitation rent
interruption, fire and extended coverage, general liability with umbrella
coverage, and supplemental equipment coverage (for boilers, pressure vessels,
HVAC and electrical equipment) and all such other insurance coverages and in
such amounts as are maintained by prudent owners of property similar to the
Building, all as reasonably determined by Landlord.
(C) Landlord agrees that it will pay the Impositions and the
Insurance Premiums as same become due and payable (subject to Tenant's
reimbursements of its Pro Rata Share thereof, as aforesaid).
(D) Failure of Tenant to pay to Landlord any such sums due under
this Section 8 when due and after notice of Monetary Default shall constitute an
Event of Default of Tenant under this Lease. The obligations of Tenant under
this Section 8 shall survive any cancellation, expiration or termination of this
Lease, as regards any such payments due from Tenant hereunder as of the date of
such cancellation, expiration or termination or allocable to periods while this
Lease is in force. The sums payable by Tenant under this Section 8 shall be
appropriately adjusted, apportioned and paid by Tenant for any fraction of a
governmental tax year or insurance policy year occurring at the commencement and
at the expiration of the term of this Lease.
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9. DAMAGE BY FIRE, OTHER CASUALTY, OR SERVICE INTERRUPTION.
(A) In the event that the Demised Premises should be damaged by
fire or other casualty so that the same shall be rendered partially
untenantable, such damage shall be repaired by the Landlord as promptly as is
reasonably possible, and the Rent shall be abated (from the date of such damage
until the damage is repaired) in the same proportion as the area of the Demised
Premises rendered untenantable bears to the total area of the Demised Premises.
The Landlord shall not be held liable in damages or otherwise for any delay in
making or completing said repairs, whether or not caused by time necessary to
settle insurance claims, nor strikes, acts of God or other casualties or any
circumstances.
(B) In the event that the Demised Premises shall be
substantially (i.e., 40% or more of the demised space) destroyed or rendered
totally untenantable, or if Landlord's mortgage lender does not make adequate
insurance proceeds available to Landlord to pay for the costs of repairs and
restoration, then in any such event the Landlord shall have the option in its
sole discretion of rebuilding the Demised Premises, or of not rebuilding the
Demised Premises and instead canceling this Lease. The Landlord, in exercise of
such option, shall determine whether or not to rebuild and shall notify Tenant
of such determination in writing, within sixty (60) days after such damage or
destruction. If Landlord shall determine to rebuild or repair such damage or
destruction, Landlord agrees to make such repairs with reasonable promptness and
dispatch, and the Rent shall abate (from the date of the damage or destruction
until the repairs required of Landlord under this paragraph are Substantially
Complete) in proportion to the area of said Demised Premises rendered
untenantable. If the Landlord determines to rebuild as aforesaid, this Lease
shall not be canceled, but instead shall remain in full force and effect and
Tenant shall reoccupy the Demised Premises (and Rent abated as aforesaid shall
again accrue and be payable) when the repairs required of Landlord under this
paragraph are substantially complete. If Landlord elects to cancel this Lease
under this paragraph, then Rent and all other sums payable by Tenant under this
Lease shall be adjusted, pro-rated and paid by Tenant to the date of such
damage. Any repair and restoration to be performed by Landlord under this
Section 9 shall be limited to those portions of the Demised Premises which were
constructed by Landlord; it being agreed that when Landlord completes its
repairs thereof to be made pursuant to this Section 9, all Rent (if any) abated
under this Section 9 shall again commence to be due and payable. Tenant, at its
own expense, will repair or replace any damage to its furniture, merchandise,
trade fixtures, equipment, personal property and other items belonging to Tenant
if damaged or destroyed by fire or other casualty, and also all leasehold
improvements constructed by Tenant.
(C) Notwithstanding the above, if the repairs which Landlord is
to make under this Section 9 are not substantially completed within two hundred
seventy (270) days after the date of the destruction of or damage to the Demised
Premises, and provided that Tenant is not in an Event of Default and that such
damage or destruction was not caused by the intentional act of Tenant or its
Permittees, then in such event Tenant at its option may terminate this Lease by
giving written notice to Landlord within ten (10) days after the end of the two
hundred seventy (270) day period aforesaid. However, Tenant's notice of
termination hereof shall be ineffective if Landlord completes the restoration of
the Demised Premises prior to Landlord's receipt of such termination notice.
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(D) In the event that the Demised Premises are rendered
untenantable due to the loss or disruption of utility service (water, sanitary
sewer, storm sewer, gas, electric, or telephone), which loss or disruption is
caused by the negligence or willful misconduct of Landlord or any Landlord
Parties (as that term is defined herein), such utility service shall be restored
by Landlord as promptly as is reasonably possible, and the Rent shall be abated
(from the date of such loss of service until the restoration of said service is
completed) in the same proportion as the area of the Demised Premises rendered
untenantable bears to the total area of the Demised Premises. Landlord shall not
be held liable in damages or otherwise for any delay in making or completing
such restoration of utility service.
10. COMPLIANCE WITH LAWS, ETC.
Tenant, at its own expense, will promptly comply with, observe
and perform all of the requirements of, and will obtain and maintain in force
all licenses, permits and other authorizations required by, all of the statutes,
ordinances, rules, orders and regulations, now in effect or hereafter
promulgated, concerning the use or occupancy of the Demised Premises and/or the
conduct of Tenant's business, and whether required by federal, state, county or
town governments and whether required of the Tenant or Landlord (collectively,
"Laws"). The Tenant agrees that it will promptly comply, at its own expense,
with all rules, orders and regulations of the Board of Fire Underwriters having
jurisdiction for the prevention of fire, and other hazards, applicable to said
Demised Premises, or for the preservation of the Demised Premises, or the
correction or abatement of nuisances or grievances for which either the Landlord
or the Tenant may be responsible as a result of Tenant's use and occupancy of
the Demised Premises during the term of this Lease, and Tenant shall at its own
expense comply with all reasonable rules, regulations and requirements of
Landlord's and Tenant's insurance carriers concerning Tenant's use and occupancy
of the Demised Premises and conduct of its business therein (collectively,
"Insurance Requirements"). Tenant shall not place or store in the Demised
Premises, nor deposit in any utility lines thereof, any hazardous or toxic
substances, materials or any items which violate any applicable federal, state,
or local environmental protection laws, and Tenant will indemnify, defend and
hold Landlord harmless from all liability and expense arising from Tenant's
violation of this Section 10.
11. NON-WAIVER OF BREACH.
(A) The failure of Landlord to insist, in any one or more
instances, upon a strict performance of any of the covenants of this Lease, or
to exercise any option herein contained, or to serve any notice, or to institute
any action or summary proceedings, or otherwise to act as though this Lease had
expired pursuant to any of the provisions of this Lease, shall not be construed
as a waiver or relinquishment by Landlord for the future, of such covenant or
option, or right thereafter to serve notice and to have this Lease expire under
any provision of this Lease, but such covenant or option shall continue and
remain in full force and effect. The receipt by Landlord of Rent, with knowledge
of the breach of any covenant hereof, shall not be deemed a waiver of such
breach, and no waiver by Landlord of any provision hereof shall be deemed to
have been made, unless expressed in writing and signed by Landlord or its duly
authorized agent.
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The rights and remedies herein created are cumulative, and the use of one remedy
shall not be taken to exclude or waive the right to the use of another.
(B) The failure of Tenant to insist, in any one or more
instances, upon a strict performance of any of the covenants required of
Landlord under this Lease, or to serve any notice, or to institute any action or
summary proceedings, shall not be construed as a waiver or relinquishment by
Tenant for the future of such covenant or right thereafter to serve notice under
any provision of this Lease, but such covenant shall continue and remain in full
force and effect. The rights and remedies herein created are cumulative, and the
use of one remedy shall not be taken to exclude or waive the right to the use of
another.
12. EVENT OF DEFAULT; REMEDIES; RELETTINGS; LEGAL COSTS; INTEREST;
ACCORD AND SATISFACTION; CONCESSIONS; DEFAULT UNDER OTHER
LEASES.
(A) EVENT OF DEFAULT. It is hereby mutually covenanted and
agreed, that that any or all of the following shall be an "Event of Default " by
Tenant:
(i) if Tenant should fail to pay promptly when and as
due any payment of Basic Monthly Rental, Additional Rent or other sums payable
by Tenant hereunder (a "Monetary Default"), and if such Monetary Default is not
fully cured within five (5) business days after written notice thereof from
Landlord to Tenant (except that Landlord need not give Tenant more than two (2)
notices of non-payment of monthly rent installments in any one Lease Year, it
being agreed an Event of Default shall exist without regard to such notice as
concerns more than two (2) monthly rent defaults in a Lease Year); or if Tenant
shall fail promptly and timely to keep and perform each and every covenant,
condition and agreement not involving payment of money (a "Non-Monetary
Default") herein contained and on the part of Tenant to be kept and performed,
and if such Non-Monetary Default is not fully cured within thirty (30) days
after written notice from Landlord to Tenant (or within such additional time as
reasonably needed to cure same if Tenant acts diligently to and does cure same
promptly and holds Landlord harmless from all liability and expense arising from
such default and the existence thereof is not a default under any deed of trust
on the Demised Premises (about which Tenant has been notified) and does not
materially adversely affect the value, safety or security of the Demised
Premises nor cause unreasonable disturbance to other tenants of neighboring
buildings); or if Tenant fails to keep in force any insurance herein required
and such default is not cured within five (5) business days after written
notice, or if any act or omission of Tenant causes unreasonable interference
with the use, occupancy or quiet enjoyment of any other tenant of any
neighboring building and is not abated within five (5) days after written notice
from Landlord; or
(ii) if the Tenant's estate hereby created shall be
taken on execution or other process or law; or
(iii) if there shall occur any of the events described
in Section 5 hereof which entitle Landlord to terminate this Lease pursuant to
said Section 5;
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(B) REMEDIES. In each and every such Event of Default, from
thenceforth and at all times thereafter, at the exclusive and absolute option
and discretion of Landlord, the Tenant's right of possession of the Demised
Premises shall thereupon cease and terminate, and Landlord shall be entitled to
the immediate possession of the Demised Premises and to remove all persons and
property therefrom and to re-enter the same without further demand of Rent or
demand of possession of said Demised Premises, with process of law and without
becoming liable to prosecution therefor, any statutory or other notice to quit
or of intention to re-enter being hereby expressly waived by Tenant; and in the
event of such re-entry or retaking by Landlord, Tenant shall nevertheless remain
in all events liable and answerable for the full Rent to the date of retaking or
re-entry. Tenant shall also be and remain answerable in damages for the
deficiency or loss of Rent which Landlord may thereby sustain in respect of the
balance of the term; and in such case Landlord reserves full power, which is
hereby acceded to by Tenant, to re-let said Demised Premises or any portion(s)
thereof as Landlord may select, upon such terms and rentals as Landlord may deem
proper (which re-lettings may be for a term lesser or longer than the term of
this Lease, at Landlord's exclusive discretion), all at the risk and cost and
for the benefit of Tenant in liquidation and discharge, in whole or in part, as
the case may be, of the liability of Tenant under the terms and provisions of
this Lease, and such damages, at the option of the Landlord, may be recovered by
it at the time of the retaking or re-entry, or in separate actions, from time to
time, as Tenant's obligation to pay Rent would have accrued if the term had
continued, or from time to time, as said damages shall have been made more
easily ascertainable by relettings of the Demised Premises, or such action by
Landlord may at the option of Landlord be deferred until the expiration of the
term, in which latter event the cause of action shall not be deemed to accrue
until the date of the termination of said term.
(C) RELETTINGS. All rents received by Landlord in any such
reletting shall be applied first to the payment of such expenses as Landlord may
have incurred in recovering possession of the Demised Premises and in reletting
the same, including also brokerage commissions and fees and costs of renovations
and alteration of the Demised Premises, second, to the payment of any costs and
expenses incurred by Landlord, including also making necessary repairs to the
Demised Premises or in curing any default on the part of Tenant in any covenant
or condition herein made binding upon Tenant, and, last, any remaining rent
shall be applied toward the payment of Rent due from Tenant under the terms of
this Lease, with interest at the rate of FIFTEEN PERCENT (15%) per annum or at
the highest lawful rate under then applicable Maryland laws, whichever is less,
and Tenant expressly agrees to pay any deficiency then remaining. Landlord,
however, at its option, may refrain from terminating Tenant's right of
possession, and in such case may enforce against Tenant the provisions of this
Lease for the full term thereof.
(D) LEGAL COSTS. In any action or proceeding which the Landlord
or the Tenant may be required to prosecute to enforce its respective rights
hereunder, the unsuccessful party therein agrees to pay all costs incurred by
the prevailing party therein, including reasonable attorneys' fees, to be fixed
by the court, and said costs and attorneys' fees shall be made a part of the
judgment in said action. In any situation in which a dispute is settled other
than by action or proceeding, the parties shall pay their respective costs and
attorneys' fees relating thereto. If Landlord is the prevailing party in any
action or proceeding against Tenant, then Tenant's payment of Landlord's costs
and attorneys' fees relating thereto shall be considered a payment of Additional
Rent.
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(E) INTEREST. If a Monetary Default by Tenant occurs under any
terms of this Lease, Tenant shall pay Landlord, in addition to the amount so in
default and any Late Charges that may be applicable, interest at the rate of
FIFTEEN PERCENT (15%) per annum, or the highest lawful rate, whichever is less
(the "Default Interest Rate"), from the date the payment was due until the date
Landlord receives said payment. If a Non-Monetary Default by Tenant occurs under
any provisions of this Lease, Landlord at its sole option and discretion may
take the action to cure such Non-Monetary Default (without any obligation to do
so) in addition to and without waiving any other remedies, and Tenant will
reimburse Landlord promptly on demand for all reasonable costs incurred by
Landlord plus interest at the Default Interest Rate from the date Landlord pays
for such incurred costs until the date Landlord receives payment from Tenant.
(F) ACCORD AND SATISFACTION. No receipt and retention by
Landlord of any payment tendered by Tenant in connection with this Lease will
give rise to or support or constitute an accord and satisfaction,
notwithstanding any accompanying statement, instruction or other assertion to
the contrary (whether by notation on a check or in a transmittal letter or
otherwise), unless Landlord expressly agrees to an accord and satisfaction in a
separate writing duly executed by the appropriate persons. Landlord may receive
and retain, absolutely and for itself, any and all payments so tendered,
notwithstanding any accompanying instructions by Tenant to the contrary.
Landlord will be entitled to treat any such payments as being received on
account of any item or items of Rent, interest, expense or damage due in
connection herewith, to be applied in such amounts and in such order as Landlord
may determine at its sole option.
(G) CONCESSIONS. Any abatements of Rent or other economic
incentives (such as moving allowances, the cost of performing Landlord's Work,
brokerage fees, or any other cash payments or allowances) made by Landlord to or
on behalf of Tenant in conjunction with this Lease (the "Concessions") are
subject to the condition that during the Initial Term of the Lease, Tenant will
faithfully comply with all of the terms and conditions of the Lease. If, after
an Event of Default, Landlord terminates the Lease and takes possession of the
Demised Premises to mitigate its damages, then Tenant shall reimburse Landlord
as Additional Rent for the cost of the Concessions multiplied by a fraction, the
numerator of which shall be the number of months remaining in the Initial Term
after the Event of Default occurs, and the denominator of which shall be the
number of months in the Initial Term of this Lease. Notwithstanding the above,
under no circumstances shall Landlord be allowed to recover any damages for
Concessions that are included in any other damages awarded to and collected by
Landlord pursuant to the provisions of this Lease.
(H) DEFAULT UNDER OTHER LEASES. It is further understood and
agreed that if Tenant is in default or breach beyond any applicable grace or
cure periods under any other lease or leases between Tenant as tenant and
Landlord or any partnership, joint venture, corporation or other entity or
parties affiliated with Landlord in which Landlord's partners or any of them has
an ownership interest, then in any such event such default or breach shall
constitute an Event of Default by Tenant under this Lease at the option and
exclusive discretion of Landlord, entitling Landlord to exercise any or all
rights and remedies provided herein (including without limitation those in
Section 12 hereof), in addition to and without limitation of any rights and
remedies under such other lease(s).
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13. LANDLORD'S LIABILITY.
If Landlord shall sell, convey or otherwise transfer or dispose
of the Demised Premises and/or the Building in which same is located, and if the
purchaser then assumes all obligations of the Landlord under this Lease
(including any obligation to return Tenant's Security Deposit), then the
undersigned Landlord shall be deemed to be released of all obligations
hereunder, effective from and after the date of such transfer. Landlord's
liability under this Lease shall be limited to its ownership interest in the
Building. However, in no event shall any partners in Landlord ever have any
personal liability under this Lease, nor may this Lease be enforced against any
such partners in Landlord, nor shall Tenant have any recourse to any assets or
properties of any partners in Landlord for enforcement of any provisions of this
Lease.
14. TENANT'S SIGNS.
Tenant shall have the exclusive right (except as provided in
Section 15 below), with Landlord's consent, to install signage on the Building,
in compliance with applicable Laws and the covenants restricting same in Seneca
Meadows Corporate Center, identifying Tenant as the occupant of the Building.
Tenant shall not place any signs or other forms or kinds of advertising in or
about the Demised Premises, which may be visible from the exterior thereof,
without Landlord's prior written consent in each instance. Any signs installed
by Tenant shall be installed at its own expense and in compliance with all
applicable laws, and shall be removed by Tenant by the expiration or termination
hereof, with all damage to Landlord's property repaired by and at the expense of
Tenant. Landlord shall install, at its own expense, monument signs along
Goldenrod Lane identifying the tenants in Seneca Meadows Corporate Center, all
as permitted by applicable Laws.
15. LANDLORD'S SIGNS.
Tenant agrees that Landlord and its agents shall have the right
to place a "For Lease" sign in the front or exterior of the Demised Premises at
all times during the last six (6) months of the term hereof, and a "For Sale"
sign at any time, provided said signs do not block the visibility of Tenant's
signs and do not interfere with Tenant's use of the Demised Premises. Tenant
will not disturb or obstruct visibility of any such signs.
16. ENTRY AND ACCESS.
(A) Tenant further agrees that the Landlord and/or its
representatives, contractors and employees shall have the right at all
reasonable times, during business hours and with prior notice of the identity
and affiliation of any representatives, contractors, prospective tenants and
employees, and if accompanied by an escort of Tenant, if Tenant so desires, and
at any time without notice or escort in emergencies, to enter upon the Demised
Premises to inspect the same or make engineering surveys, exploratory
excavations, repairs, alterations and additions, and to perform any work
required of Landlord under this Lease or which Landlord deems necessary for the
safety or preservation of the Demised Premises or of the Building, including
also any work required of Tenant in respect of which Tenant is in an Event of
Default. Tenant also agrees to
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permit Landlord and/or its agents to show the Demised Premises to prospective
tenants at all reasonable times after prior notice and accompanied by an escort
of Tenant during the last six (6) months of the term hereof and any time after
Tenant has given Landlord notice of termination of this Lease under any
provision hereof entitling Tenant to do so, or if Tenant is in an Event of
Default or subject to any Events of Bankruptcy. During any of the foregoing
entries into the Demised Premises, Landlord agrees to exercise commercially
reasonable efforts to minimize any disruption to Tenant's business.
(B) If Tenant shall have vacated and abandoned the Demised
Premises, then the Landlord and/or its representatives, contractors and
employees shall have the right to enter the Demised Premises, by force or
otherwise if necessary and without being liable therefor, and without in any
manner affecting Tenant's obligations under the Lease. The exercise of such
reserved right by Landlord shall not be deemed a disturbance of Tenant's right
of Quiet Possession under the Lease, shall not affect Tenant's obligation to pay
Rent under the terms of the Lease, shall not be deemed to constitute actual or
constructive eviction, and shall not subject Landlord to any liability to Tenant
therefor.
17. EMINENT DOMAIN.
Tenant agrees that if the said Demised Premises, or any part
thereof, shall be taken, condemned or acquired for public or quasi-public use or
purpose by any competent authority, whether by condemnation proceedings, lease
or purchase, Tenant shall have no claim against Landlord and shall not have any
claim or right to any portion of the amount that may be awarded as damages or
paid as a result of any such condemnation, lease or purchase; it being agreed
that the full amount of such award, or other proceeds, if any, made or paid by
the taking authority shall be paid to and retained by Landlord free of any claim
by Tenant to any portion thereof; and all right of Tenant to damages therefor,
if any, are hereby assigned by Tenant to Landlord. Should all or a substantial
part of the Demised Premises be so taken or acquired, the term of this Lease
shall cease and terminate from the date of the taking, and Tenant shall have no
claim against Landlord for the value of any unexpired term of this Lease or for
any other matters. All Rent and other sums payable by Tenant hereunder shall be
adjusted and paid by Tenant to the date on which Tenant is required, by said
taking authority, to surrender possession of said Demised Premises. However, if
the portion of the Demised Premises so taken or acquired does not render the
Demised Premises unusable for the purposes herein permitted, then this Lease
shall not terminate, but shall continue in effect with the Rent reduced in
proportion to the area of the Demised Premises so taken or acquired.
Notwithstanding the foregoing provisions of this Section 17, Tenant shall have
the right at its own expense, and in a separate action from Landlord's
condemnation proceedings, to pursue against the condemning authority claims for
Tenant's leasehold improvements which exceed the value of the Tenant Improvement
Allowance, relocation expenses and other losses (excluding loss of the
leasehold) necessitated by such taking of the Demised Premises, provided that no
such claim of or award to Tenant shall reduce, delay, interfere with or
otherwise in any manner adversely affect any claims of or award to Landlord for
taking of Landlord's interest in the Demised Premises, this Lease, the Building,
the Land appurtenant thereto or any other claims to which Landlord is entitled.
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18. CONSENT.
Whenever the consent or approval of the Landlord or Tenant is
required under this Lease, such consent will not be unreasonably withheld,
conditioned or delayed, except as otherwise herein provided for exclusive
discretion given to Landlord. The party giving its consent, or the reasons for
not giving consent, shall respond in writing to the other party's request for
consent within ten (10) business days of its receipt of such request (but,
except as expressly provided herein, shall not be deemed to grant such consent
nor to waive any rights by failing to respond within said period).
19. TENANT'S PROPERTY.
The Tenant further covenants and agrees that all personal
property in and upon the Demised Premises shall be and remain there at Tenant's
sole risk, and the Landlord and its partners, agents and employees
(collectively, "Landlord Parties") shall not be liable for any damage to or loss
of any personal property arising from any acts or negligence of any other
persons, nor from the leaking of the roof, nor from the bursting, leaking or
overflowing of water, sewer or steam pipes, nor from heating or plumbing
fixtures, nor from the handling of electric wires or fixtures, nor from any
other cause whatsoever (unless and only to the extent caused by the negligence
or willful misconduct of the Landlord or any Landlord Parties), nor shall the
Landlord or any Landlord Parties be liable for any injury to the person of the
Tenant or other persons in or about the Demised Premises, (unless and only to
the extent caused solely by the negligence or willful misconduct of the
respective Landlord Parties); the Tenant expressly agreeing to save the Landlord
harmless in all such cases and to carry public liability insurance in a company
as provided in Section 6 hereof. Tenant covenants and agrees that it will not
operate any machinery in the Demised Premises which may cause unreasonable
vibration or damage to the Demised Premises or unreasonably disturb or annoy
other tenants in neighboring buildings, nor to use a loud speaker or any other
device nor conduct any activity in or at the Demised Premises which can be heard
outside the Building. No storage of any kind will be allowed on the exterior of
the Building, or on the Common Areas serving the Building.
20. SUBORDINATION.
Tenant further covenants and agrees that this Lease and the
rights of Tenant hereunder are subject and subordinate to the lien of any
mortgage or deed of trust encumbrance or encumbrances now or at any time
hereafter placed upon said Demised Premises by Landlord, and to any and all
renewals, modifications, consolidations, recastings, refinancings and
replacements thereof (collectively or separately the "Financing"). It is the
intention of the parties that this provision be self-operating and that no
further instrument shall be required to effect such subordination. The Tenant,
however, does hereby agree to execute and deliver to Landlord or its mortgagees
within ten (10) business days after each request any and all reasonable
instruments necessary to effect such subordination which the Landlord or its
mortgagees may request or require. Notwithstanding the subordination of this
Lease as aforesaid, any present or future mortgagee or beneficiary under any
mortgage or deed of trust covering such Financing at its option may require that
this Lease shall be senior in lien to such mortgage or deed of trust, and that
this Lease shall not terminate in the event of foreclosure of any such mortgage
or deed of trust. Tenant covenants and agrees in the event of foreclosure of any
such mortgage or deed of
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trust, within ten (10) business days after request of the purchaser or
mortgagee, to attorn to the purchaser upon such foreclosure sale and to
recognize such purchaser as the landlord under this Lease (provided such
purchaser or mortgagee expressly recognizes Tenant's occupancy and assumes
Landlord's obligations to Tenant hereunder), and Tenant agrees to execute and
deliver at any time, within ten (10) business days after request of Landlord or
of any such mortgagee any instrument which may be necessary in any such
foreclosure proceeding or otherwise to evidence such attornment. Tenant further
waives the provisions of any statute or rule of law, now or hereafter in effect,
which may give or purport to give Tenant any right or election to terminate or
otherwise adversely affect this Lease and the obligations of Tenant hereunder in
the event of any such foreclosure. However, provided Tenant is not in an Event
of Default hereunder nor subject to any one (1) or more Events of Bankruptcy,
Landlord agrees to arrange for Landlord's mortgagee to join with Tenant (and
with Landlord if the mortgagee so requires) in executing a non-disturbance,
subordination and attornment agreement in form and content satisfactory to the
mortgagee, whereby such subordination of this Lease to Landlord's deeds of trust
is confirmed but the mortgagee agrees that this Lease and Tenant's rights
hereunder will not be terminated by a foreclosure by such mortgagee so long as
Tenant is not in an Event of Default under this Lease, and whereby Tenant grants
the attornment mentioned above. However, neither the refusal of any mortgagee to
join in any such agreement nor Landlord's inability to cause same to be done
shall in any respect affect this Lease or Landlord's rights or Tenant's
obligations hereunder. Any mortgagee or foreclosure purchaser or their
successors in interest shall not (a) be bound by any prepayment of Rent or other
sums more than thirty (30) days in advance paid by Tenant to any prior landlord
(including Landlord), nor (b) be bound by any amendment to this Lease or by any
waiver or forbearance by any prior landlord (including Landlord) made without
prior written consent of such mortgagee, nor (c) be liable for any act, omission
or default of any prior landlord (including Landlord), nor (d) be subject to any
offsets or defenses Tenant may have against any prior landlord (including
Landlord), nor (e) be accountable hereunder for a Security Deposit posted by
Tenant hereunder (except to the extent received by such mortgagee or foreclosure
purchaser, as the case may be). Any mortgagee of Landlord shall be discharged of
all obligations hereunder which may have arisen from its becoming a mortgagee in
possession, and landlord, or otherwise after such mortgagee disposes of its
interest in the Demised Premises.
21. FIRE INSURANCE.
Tenant will not carry on any activity in the Demised Premises,
or do or permit anything to be done therein, which is contrary to any law,
ordinance, order or regulation of the federal, state, county or municipal
government, or of any board, agency or department thereof; and Tenant shall not
permit nor do anything which would increase the Basic Rate (as defined below) of
the Landlord's fire insurance on the Building as established by the appropriate
agency having jurisdiction. For purposes of definition herein, the "Basic Rate"
shall be such rate as published by the said appropriate agency, exclusive,
however, of any excess or surcharges appended thereon by virtue of or directly
attributable to so-called faults of management. If Tenant's use or occupancy of
or business at the Demised Premises causes an increase in the final rate of
Landlord's insurance on the Building or the Demised Premises over and above the
Basic Rate for construction of this type occupied for the purposes permitted
hereunder, then Tenant, upon written notice from Landlord, shall promptly take
all necessary steps to eliminate the excess charge attributable to such faults
of management. Should Tenant refuse or fail to take
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such action as may be necessary to eliminate the cause for said excess charges,
Tenant shall pay to Landlord, as Additional Rent within thirty (30) days after
written notice, that portion of the aforesaid fire and extended coverage
insurance premium caused by such excess charge on all outstanding insurance
carried on the Demised Premises and/or the Building of which same are a part.
22. PARKING AREAS.
(A) Landlord shall provide free, on-site surface parking for the
use in common of all tenants in the Building at the rate of approximately THREE
AND ONE-HALF (3.50) parking spaces per 1,000 square feet of rentable area in the
Building. Landlord, at Tenant's request, shall provide up to twelve (12)
reserved spaces at the main entrance to the Demised Premises for Tenant's
visitors and designees.
(B) Tenant further agrees to keep the parking area in front of
the Demised Premises (between the Building line and public property) clean and
free of Tenant's and its invitees' merchandise, property and equipment, at its
own expense. In the event that Tenant shall fail to abide by the foregoing
provisions of this Lease, and it becomes necessary for Landlord to perform same,
Tenant agrees, after written notice from Landlord and an opportunity to cure, to
reimburse the Landlord for such reasonable expenses and costs occasioned by the
Tenant's neglect.
23. PLATE GLASS.
Tenant agrees, at its own expense, to replace all plate glass
doors, windows and partitions of the Demised Premises with glass of like kind
and quality if such glass is cracked, broken or otherwise damaged by causes
other than those insured against and covered by the insurance policies carried
on the Building (as referenced in Paragraph 8(B)).
24. NOTICES.
All notices, demands or requests to be given under this Lease
must be in writing, and sent via certified or registered U.S. First Class Mail,
return receipt requested, postage prepaid, or by courier service, addressed if
to Landlord at 9108 Gaither Road, Gaithersburg, Maryland, 20877, and if to
Tenant at the Demised Premises, or to such other address as either party itself
may from time to time designate to the other by like notice given at least ten
(10) days before the date such address change is effective. All such notices
shall be deemed properly given if given as aforesaid and deposited in a United
States post office or mail box. The date of giving such notices shall be deemed
to be the second business day after the date of deposit thereof as aforesaid as
concerns mailed notices, or the date of receipt by the addressee or attempted
delivery to the address in the case of notices sent by courier.
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25. TENANT ESTOPPEL CERTIFICATES; LANDLORD CURE RIGHTS; TENANT CURE
RIGHTS.
(A) TENANT ESTOPPEL CERTIFICATES. Tenant shall, without charge
therefor, at any time and from time to time, within ten (10) business days after
request from Landlord (but in no event more than two (2) times in any calendar
year), execute, acknowledge and deliver to Landlord a written estoppel
certificate (in form and contents reasonably requested by Landlord), certifying,
to the best of Tenant's actual knowledge, to Landlord and/or any mortgagee,
assignee of a mortgagee, any master landlord or any purchaser of the Building or
Demised Premises, or any other party designated by Landlord, as of the date of
such estoppel certificate, as to all or such of the following matters as
reasonably requested by Landlord, to the extent such matters then are the case
(and if not, then stating all details to the contrary thereof), namely: (a) that
Tenant has accepted and is occupying the Demised Premises covered by this Lease;
(b) that the Demised Premises have been completed as required by the terms of
this Lease; (c) that the Lease is in full force and effect, and that no known
Events of Default now exist thereunder; (d) that this Lease constitutes the
entire agreement between Landlord and Tenant and has not been modified; (e) that
the Lease Rents are now being paid on a current basis, and the date to which any
Rent has been paid in advance; (f) that Landlord has fulfilled all of its duties
of an inducement nature, and neither Landlord nor Tenant is in an Event of
Default under the Lease; (g) that in the event the Tenant receives written
notice from Landlord's mortgagee stating that a default has occurred under its
deed of trust loan, and that the mortgagee requires payment of rent to it, then
the Tenant will thereafter remit all Rent payments as directed and to the
address set forth in such written notice; (h) that there are no off-sets or
credits against Rents, and Rents have not been prepaid more than thirty (30)
days in advance; (i) that Tenant has received no notice of a prior assignment,
or pledge of Rents, under this Lease; (j) details of any matters of which Tenant
has knowledge or which Tenant claims, which are contrary to the statements
contained in clauses (a) through (f) inclusive, (h) and (i) of this Paragraph;
(k) the commencement and expiration dates of the then operative term hereof, and
of any then exercised renewal terms; (l) such other matters concerning this
Lease, the parties hereto and/or the Demised Premises as Landlord may reasonably
request; and (m) that Tenant understands such Estoppel Certificate is being
relied on by the mortgage lender or purchaser requesting same as an inducement
to its loan or purchase.
(B) LANDLORD CURE RIGHTS. Landlord shall not be deemed to be in
default under any of its obligations under this Lease unless (a) Tenant has
given to Landlord (and to each of Landlord's mortgagees of whom Tenant has been
given written notice of such mortgagee's name and address) written notice of
such Landlord default, and (b) such default of Landlord has not been cured by
Landlord or its mortgagee within thirty (30) days after their receipt of such
notice or within such additional time as may reasonably be necessary to cure
same if Landlord or its mortgagee acts with commercially reasonable diligence to
cure same (provided, that such mortgagee shall have such additional time to cure
same as may be necessary to enable it to exercise any rights under its deed of
trust and other loan documents, including foreclosure and acquisition of control
and/or possession of the Demised Premises and Building). The cure periods
aforesaid afforded Landlord and its mortgagees shall be further extended by all
delays in such cure actions caused by fire or other casualty, strikes, lockouts
or other labor troubles, shortages of equipment, materials or utilities, power
outages, acts of God or the public enemy, vandalism, governmental requirements,
action or inaction or other causes not reasonably within their control. Tenant
shall not be entitled to exercise any legal, equitable or other remedies for any
default of Landlord unless same remains uncured beyond the grace period after
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receipt of written notice as aforesaid. Landlord shall not be deemed in default
under this Lease, if Landlord or its mortgagee(s) cure(s) such default within
the applicable grace period after notice as aforesaid. Tenant's rights and
remedies with respect to any default of Landlord hereunder shall be subject to
the terms and provisions of this Lease, and in no event shall include any right
of Tenant to self-help or to perform any work on behalf of Landlord, nor any
right of Tenant to withhold or to any abatement or setoff with respect to any
Rent or other sums payable by Tenant under this Lease, nor any right to
terminate this Lease.
(C) TENANT CURE RIGHTS. Notwithstanding the foregoing, if
Landlord shall fail to perform any of its covenants or agreements contained in
this Lease which materially and adversely affect Tenant's occupation and use of
the Premises, and Landlord shall fail to commence to cure (and diligently
prosecute) such default within ten (10) days after receipt of written notice of
default from Tenant (in which notice Tenant shall specify in detail the nature
and extent of the alleged default, and the proposed means by which to cure
same), Tenant may, in addition to all other remedies now or hereafter afforded
or provided by law, perform such covenant or agreement on behalf of Landlord in
accordance with all applicable Laws, or otherwise cure any such default, and any
reasonable and necessary amount which Tenant shall advance pursuant thereto
shall be repaid by Landlord to Tenant within thirty (30) days after written
demand therefor.
26. MORTGAGEE REVISIONS.
If requested by Landlord's mortgage lender, Tenant agrees to
join with Landlord in executing such amendments to this Lease as such lender may
require, provided same do not increase the rentals or other amounts payable by
Tenant hereunder, nor materially alter Tenant's rights and/or obligations or
Landlord's rights and/or obligations under this Lease.
27. QUIET POSSESSION.
Landlord covenants and agrees with Tenant that, provided no
Event of Default then exists hereunder, Tenant shall during the term of this
Lease have quiet possession of the Demised Premises (subject, however, to all
terms, conditions and provisions of this Lease), without interference by
Landlord.
28. MISCELLANEOUS GENERAL PROVISIONS.
(A) JOINT AND SEVERAL. In case two (2) or more persons or
parties shall constitute the Tenant hereunder, the covenants, obligations and
agreements herein made binding upon the Tenant shall be the joint and several
obligations of all such persons and parties.
(B) ENTIRE AGREEMENT. This Lease, including the exhibits
referenced herein and annexed hereto, constitutes the entire agreement of the
parties in respect of the Demised Premises thereby leased, and there are no oral
agreements between the parties. This Lease cannot be modified or amended, except
by written instrument executed by Landlord and Tenant.
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(C) WAIVER OF JURY TRIAL. The Tenant and Landlord waive all
right to trial by jury in any proceeding which may be instituted by one party
against the other party in respect of the Demised Premises or this Lease.
(D) SEVERABILITY. If any provision of this Lease shall at any
time be finally adjudicated to be invalid or illegal by any court of competent
jurisdiction, this Lease shall not be invalidated thereby; and in such event
this Lease shall be read and construed as if such invalid or illegal provision
had not been contained herein, but only to the extent same is so adjudicated to
be invalid or illegal.
(E) HEADINGS. The paragraph captions hereof are for convenience
of reference only and shall not limit or affect the provisions hereof.
(F) MINIMUM TEMPERATURE. Tenant at its own expense agrees to
maintain the temperature level in the Demised Premises at a level sufficient to
prevent freezing of or damage to any water or sprinkler pipes or lines in or
serving the Demised Premises.
(G) BUSINESS DAYS. For purposes hereof, the phrase "business
days" shall mean Mondays through and including Fridays, excluding holidays on
which federal government and Maryland State government offices are closed.
(H) AUTHORITY OF PARTIES. Landlord and Tenant represent to each
other that each is duly organized, validly existing and in good standing under
the laws of their respective states of formation, and that each of the
individuals signing this Lease on behalf of Landlord and Tenant have the full
right, power, capacity and authority to execute and deliver this Lease as a
binding and valid obligation of the Landlord and Tenant as the case may be
hereunder.
(I) APPLICABLE LAW. This Lease shall be construed under the laws
of the State of Maryland, without regard to choice of law or conflict of laws
principle.
(J) INTERPRETATION. The parties confirm they have been
represented by their own counsel in the negotiation and preparation of this
Lease, and no provision of this Lease shall be construed against Landlord based
on any rules of construction which assume that Landlord has prepared this Lease
or that same should be construed against the party preparing same.
(K) LANDLORD APPROVAL. All powers of approval given to Landlord
under this Lease, and exercise thereof, are solely for its benefit and do not
constitute any representation or warranty from Landlord.
(L) DRAFT NOT BINDING. Submission of this Lease in any number of
drafts unexecuted by Landlord and Tenant shall not constitute a reservation of
or option for lease, nor shall any negotiations between Landlord and Tenant
constitute a legally binding obligation of Landlord and Tenant of any kind; it
being agreed that this Lease shall only be binding upon
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Landlord and Tenant when fully executed by Landlord and Tenant with a
counterpart fully executed original hereof received by each of said parties.
(M) BINDING EFFECT. The provisions of this Lease shall bind, and
inure to the benefit of, the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and (subject to
Section 7 hereof) assigns.
(N) GENDERS; PRONOUNS. Wherever required in the context, the
singular number shall include the plural number, the plural number shall include
the singular number, and the use of any gender shall be deemed to include all
genders. It is understood and agreed that the relationship between Landlord and
Tenant created by this Lease is that of landlord and tenant only and no other
and they shall not be deemed partners or agents of the other party hereto.
29. RENEWAL OPTION.
(A) OPTIONS. Provided that no Event of Default of Tenant exists
under this Lease at the time of exercise of any of these renewal options, or at
time of commencement of any of the renewal terms, the Tenant shall have the
right and option to renew and extend the term of this Lease for TWO (2)
additional, consecutive periods of FIVE (5) YEARS each (each a "Renewal Term"),
commencing therefor at 12:01 a.m. on the day immediately following the
expiration date of the Initial Term or of the immediately expired prior Renewal
Term, as the case may be. Each such renewal option may be exercised only by
written notice from Tenant to Landlord given at least two hundred seventy (270)
days prior to the expiration of the then current term hereof. Such renewal shall
be upon the same terms and conditions of this Lease, except that Tenant shall be
limited to said two Renewal Terms, and Landlord shall not be obligated to
perform any work described in Paragraph 2(B) hereof or any other work for the
Demised Premises during or with respect to the Renewal Terms. If Tenant fails to
exercise the first renewal option provided herein, then both renewal options
shall automatically be null and void. These renewal options shall not be
assignable by Tenant without Landlord's prior written consent in each case
(except as provided in Section 7 above). The renewal options shall apply only
with respect to all space leased by Tenant under this Lease.
(B) RENEWAL RENT. Basic Annual Rental during the Renewal Terms
shall be at NINETY-FIVE PERCENT (95%) of the prevailing rate (including also
annual increases, other additional charges, and market concessions) as
reasonably determined by Landlord and Tenant for other similar space in the
Germantown and Gaithersburg sub-markets (the "Renewal Rental"). Notwithstanding
the foregoing, the Renewal Rental payable by Tenant for the first lease year of
the first Renewal Term shall not be less than the Basic Annual Rental payable by
Tenant during the seventh (7th) Lease Year of the Initial Term. The Renewal
Rental payable by Tenant for the first Lease Year of the second Renewal Term
shall not be less than the Basic Annual Rental payable by Tenant for the third
(3rd) Lease Year of the first Renewal Term. If the rent floor described above is
applicable to the First Renewal Term, Landlord shall provide to Tenant a
refurbishment allowance equal to Seven Dollars ($7.00) per square foot of
rentable space in the Demised Premises. No refurbishment allowance shall be
provided by Landlord to Tenant if the rent floor is applicable to the second
Renewal Term. Furthermore, the Basic Annual Rental payable by Tenant during the
first Lease Year of each Renewal Term shall be subject to
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escalation, commencing with the second and each succeeding Lease Year during the
applicable Renewal Term, at the prevailing rate in the above-specified
sub-markets, which rate shall not be less than two percent (2%) per year.
Landlord shall notify Tenant as to the Renewal Rental within ten (10) business
days after request by Tenant for such information, which request shall be made
by Tenant not earlier than three hundred (300) days before the end of the then
current Term. Basic Annual Rental shall be payable during the Renewal Terms in
the manner as prescribed in this Lease. In addition to the Renewal Rental,
Tenant shall pay to Landlord, at the times indicated herein, the Additional Rent
and other sums required to be paid by Tenant pursuant to the terms of this
Lease.
30. REMOVAL BY TENANT.
By the expiration of the Initial Term (or any duly exercised
renewal term, as the case may be), or any termination of this Lease, Tenant
shall have removed from the Demised Premises all of Tenant's and its assignees'
and subtenants' merchandise, furniture and other personal property (excluding
any items which belong to Landlord or which are not to be removed by Tenant, as
elsewhere provided), and Tenant at its own expense will promptly repair any
damage done to the Demised Premises or the Building of which same are a part by
installation or use thereof or by any such removal, reasonable wear and tear and
damage by casualty and condemnation excepted. Any of Tenant's property not
removed by the expiration or termination of this Lease shall, at Landlord's
option, be deemed abandoned and may be retained, disposed of or otherwise dealt
with by Landlord as it deems fit (and all at the risk, cost and expense of
Tenant).
31. LIEN ON TENANT'S PROPERTY.
Landlord's lien for Rent upon all of the goods, wares, chattels,
fixtures, furniture and other personal property of Tenant which may be in or
upon the Demised Premises during the term of this Lease or any renewal,
extension or holdover term shall be subordinated to the rights of a lender who
acquires a security interest in the property of the Tenant in accordance with
the Landlord's Consent & Waiver, the form of which is attached hereto as EXHIBIT
"E" and made a part hereof. However, Landlord will at all times retain ownership
of and all rights to the leasehold improvements without subordination to a
Tenant lender. Notwithstanding anything to the contrary contained herein,
Landlord agrees that the following personal property of Tenant is expressly
exempt from Landlord's lien as set forth in this Section 31, and that at no time
shall Landlord have any claim or rights with respect thereto: all scientific
instrumentation designed, modified or adapted by Tenant, computers, routers,
storage devices and servers used in Tenant's business and research, all data
generated by or created for Tenant, all software developed or adapted by or for
Tenant, all databases to which Tenant has contributed data or had data
contributed on its behalf, all biological samples held by Tenant, all
intellectual property related to any of the foregoing (whether or not patented
or patentable) together with all patent rights and other intellectual property
rights therein and any other such proprietary thing as may pertain to Tenant's
business, research, design, development activities or its collaborators, clients
or Tenant affiliates.
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32. BROKERAGE.
Landlord and Tenant recognize SCHEER PARTNERS INC. and MANEKIN,
LLC (the "Brokers") as the sole real estate brokers in connection with this
Lease. Landlord agrees to pay Brokers a leasing commission for procuring this
Lease pursuant to a separate written commission agreement executed by Landlord
and Brokers. Tenant and Landlord represent and warrant that it has not engaged
or dealt with any other real estate broker or agent in connection with this
Lease other than the Brokers. Tenant and Landlord agree to indemnify, defend and
hold each other harmless from any commission or other related claims, including
court costs and reasonable attorneys' fees, which Landlord may suffer, incur or
be made a party to as a result of any misrepresentation by Tenant regarding
other brokers used in connection with this Lease.
33. RULES AND REGULATIONS.
Tenant and its Permittees shall at all times abide by the Rules
and Regulations attached hereto as EXHIBIT "B" and made a part hereof. In
addition, Tenant and its Permittees shall abide by such other reasonable rules
and regulations for the operation and maintenance of the Building as may be
promulgated from time to time by Landlord to all tenants in the Building, with a
copy sent to Tenant not less than thirty (30) days prior to the effective date
of any such amendments, provided, however, that the same are necessary in
Landlord's reasonable judgment for the general well being, safety, care and/or
for the cleanliness of the Building or its appurtenances, and that the same
apply to all tenants of office, laboratory or warehouse space in the Building
similar to the Demised Premises. Landlord shall enforce such Rules and
Regulations against all tenants in a fair and equitable manner. Landlord shall
not be liable to Tenant for violations of the same by any other tenant or its
Permittees. Landlord will use reasonable efforts to cause other tenants in the
Building to cease having any excessive noise or noxious fumes emanating outside
their space which unreasonably disturb Tenant, but Landlord will not be liable
therefor nor shall this Lease be affected thereby. If there is any inconsistency
between this Lease and said Rules and Regulations, this Lease shall govern.
34. ENVIRONMENTAL HAZARDS.
(A) In the conduct of its business at the Demised Premises,
Tenant covenants and agrees at its own expense to comply with all Environmental
Laws (as hereinafter defined) applicable to the Demised Premises, and not to
store, use, or dispose of any Hazardous Substances (as hereinafter defined) in,
at or about the Demised Premises in a manner which violates any Environmental
Laws or endangers human health or habitation or damages the Building or subjects
Landlord to any expense or liability or violates this Section 34, and not to
cause, permit or suffer any "Release" (as that term is defined or used in any
Environmental Law) of any Hazardous Substances from the Demised Premises or onto
or into the soil, groundwater or air or any water, sewer or other drains or
storm water management facilities at or near the Demised Premises. The phrases
"Environmental Laws" and "Hazardous Substances", as used herein, are defined, as
follows:
(i) The term "Environmental Laws" means and includes,
without limitation, any federal, state, county or local law, statute, regulation
or ordinance pertaining to health, industrial hygiene, pollution, or
environmental or ecological conditions including without
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limitation each of the following: the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S. Code
Sections 9601 et seq.; the Resource Conservation and Recovery Act of 1976, as
amended ("RCRA"), 42 U.S.C. Sections 6901 et seq.; the Toxic Substance Control
Act, as amended, 15 U.S.C. Sections 2601 et seq.; the Clean Air Act, as amended,
42 U.S.C. Sections 7401 et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Sections 1251 et seq.; the Federal Hazardous Materials
Transportation Act, 49 U.S.C. Sections 1801 et seq.; and the rules, regulations
and ordinances of the U.S. Environmental Protection Agency and of all other
agencies, boards, commissions and other governmental bodies and officers having
jurisdiction over the Demised Premises or the use or operation thereof. The
phrase "U.S.C." as used herein refers to the United States Code.
(ii) The term "Hazardous Substance", as used herein,
means and includes, without limitation: (1) Those substances included within the
definitions of "hazardous substances," "hazardous materials", "toxic substances"
or "solid waste" in any Environmental Laws; (2) Those substances listed in the
U.S. Department of Transportation Table or amendments thereto (49 CFR 172.101)
or by the U.S. Environmental Protection Agency (or any successor agency) as
hazardous substances (40 CFR Part 302 and any amendments thereto); (3) Those
other substances, materials and wastes which are or become regulated under any
applicable federal, state, county or local law, regulation of or ordinance or by
any federal, state, county or local governmental agency, board, commission or
other governmental body, or which are or become classified as hazardous or toxic
by any such law, regulation, or ordinance; and (4) Any material, waste or
substance which is any of the following: (a) asbestos; (b) polychlorinated
biphenyls (PCB's); (c) designated or listed as a "hazardous substance" pursuant
to Sections 311 or Sections 307 of the Clean Water Act (33 U.S.C. Sections 1251
et seq.); (d) explosive; (e) radioactive; (f) carcinogenic, or (g)
chlorofluorocarbons (CFC' s).
(B) Tenant shall defend, indemnify and hold Landlord and its
partners and agents and its and their successors and assigns harmless from and
against any and all loss, damage, costs, expense and liability (including,
without limitation, reasonable attorneys' fees and court costs) directly or
indirectly arising out of or attributable to the installation, use, generation,
manufacture, production, storage, Release or threatened Release, discharge,
disposal or presence of a Hazardous Substance, on, under or about the Demised
Premises or in any drains or utility lines thereof or of the Building or Land or
any lands owned by Landlord or its affiliates by Tenant or any Tenant
Permittees, or arising out of the violation by Tenant or any Tenant Permittees
of any Environmental Law applicable to the Demised Premises, including without
limitation: (i) all bodily injury and property damage; (ii) the costs of any
required or necessary repair, cleanup, abatement, removal, disposal,
detoxification and other remedial measures; and (iii) the preparation and
implementation of any closure, remedial or other required plans. This indemnity
shall survive the termination or expiration of this Lease for the applicable
periods of statutes of limitation.
(C) LANDLORD'S REPRESENTATION. Landlord represents and warrants
that to the best of Landlord's actual knowledge, there are no Hazardous
Substances located in, on or under the Building or the Land and Landlord has
received no notices concerning violation of any laws relating to Hazardous
Substances with respect to the Building or the Land. If Hazardous Substances are
discovered in the Building or on the Land after the Commencement
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Date and were not caused or permitted by Tenant or its Permittees, Landlord will
be responsible for the costs and expenses associated with regulatory
requirements to eliminate any violations of law resulting from such presence and
Landlord shall indemnify and hold Tenant and Tenant's employees, assignees,
agents and invitees, harmless from any and all claims, costs, liabilities or
expenses associated with such Hazardous Substances.
35. ROOF & SITE RIGHTS.
Tenant shall have the right to install, free of charge, at
Tenant's sole cost, risk and expense, reasonable amounts of mechanical or other
equipment (the "Tenant Equipment") on the roof of the Building and/or on
portions of the Land, in an amount and of a type determined by Tenant, subject
to Tenant's compliance with the all applicable Laws, the Covenants, Conditions
and Restrictions in Seneca Meadows Corporate Center, and subject further to
Landlord's prior written approval of location, placement, plans and
specifications for the Tenant's Equipment and type and placement of all cabling
and wiring ancillary thereto, all of which Landlord approvals shall not be
unreasonably withheld, conditioned or delayed. Landlord makes no representation
concerning the suitability of the rooftop or the Land as a location for the
Tenant's Equipment, and Landlord's approval of Tenant's plans and specifications
shall in no event be construed as constituting such a representation. Tenant
shall be responsible, at its own expense, for obtaining and maintaining in full
force and effect all approvals, permits and licenses required by any federal,
state or local government for installation and operation of the Tenant's
Equipment and for paying all fees attendant thereto and for complying with all
other Laws relating to the Tenant's Equipment. If the Tenant's Equipment is
installed, Tenant shall have sole responsibility for the maintenance, repair and
replacement thereof and of all cabling and wiring ancillary thereto and for the
removal thereof on or before termination of this Lease. Tenant shall coordinate
with Landlord's property manager concerning any penetration of the roof or the
exterior facade of the Building, and shall in no event take any action that will
void any then-existing roof warranty. All repairs to the Building made necessary
by reason of the furnishing, installation, maintenance, operation or removal of
the Tenant's Equipment shall be performed promptly by Tenant at its sole
expense, and Tenant, at its sole expense, shall repair any damage to the
Building caused by the installation or removal of the Tenant's Equipment and
related cabling and wiring. In the event Tenant fails to remove the Tenant's
Equipment on or before the expiration of the Term, Landlord may remove and
dispose of such Tenant's Equipment at Tenant's risk and expense, and Tenant
shall pay to Landlord upon request the entire reasonable cost thereof. Tenant's
Equipment shall not interfere with the structure of the Building, any of the
building systems, or, at any time that Tenant is not the sole tenant of the
Building, the equipment (including airwaves reception and other equipment) of
any other tenant in the Building who shall have similar rights to their own
equipment and shall have exercised those rights prior to the exercise thereof by
Tenant hereunder. Any such similar rights granted to any other tenant shall
similarly restrict such other tenant's equipment from interfering with Tenant's
Equipment, and Landlord shall enforce all such restrictions. If Tenant ceases at
any time to be the sole Tenant of the Building, Tenant shall be responsible for
and promptly shall correct and pay for any damage to or interference with the
operation of the Tenant's Equipment by any third party. Landlord shall have the
right to require Tenant to relocate the Tenant's Equipment at Landlord's cost to
another suitable location on the rooftop reasonably acceptable to Tenant,
provided such
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relocation can be done at a time and in a manner that only minimally and
temporarily interferes with Tenant's use of the Tenant's Equipment.
With respect to Tenant's Equipment, it is further agreed that: (a) no such
equipment shall emit or produce any radiation, sound or light waves or other
features including vibration, that is in violation of any Laws, nor involve or
include Hazardous Materials in violation of any Laws or of Tenant's obligations
pursuant to Sections 6 and 21 hereof, (b) Tenant will provide Landlord, upon
request, copies of all permits for said equipment, (c) all installation thereof
shall be done in compliance with the terms of this Lease, (d) all such equipment
shall conform to the plans for same approved by Landlord and the permit
authority, and (e) all of Tenant's rights under this Section 35 shall cease upon
the expiration of the Term. Tenant shall not assign or sublet its rights under
this Section 35 separate from an assignment or sublease of this Lease.
IN WITNESS WHEREOF, the Landlord has caused this instrument to
be executed by its undersigned Agent, and the Tenant has caused this instrument
to be signed, and to be witnessed or attested on its behalf by its undersigned
authorized officer(s), all done on the date first hereinabove written.
LANDLORD:
WESTPHALIA CENTER II LIMITED
PARTNERSHIP
WITNESS:
/s/ MARY O. PITRONE By: /s/ PAUL N. CHOD (SEAL)
---------------------------------- -------------------------------------
(SIGNATURE) Paul N. Chod, General Partner
TENANT:
WITNESS/ATTEST: LARGE SCALE PROTEOMICS CORPORATION
/s/ ROBERT J. WALDEN By:/s/ N. LEIGH ANDERSON (SEAL)
---------------------------------- -------------------------------------
Robert J Walden, CFO N. Leigh Anderson, President & CEO
(PRINT NAME & TITLE) (PRINT NAME & TITLE)
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--------------------------------------------------------------------------------
EXHIBIT "A"
LAND
Lot 5, Block B
Seneca Meadows Corporate Center
Clarksburg (2nd) Election District
Montgomery County, Maryland
Plat Book 194
Plat No. 21147
The approved Site Plan for Lot 5 is attached separately.
--------------------------------------------------------------------------------
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EXHIBIT "B"
RULES AND REGULATIONS
Reference is made to a certain Agreement of Lease dated July 26, 2000
attached hereto (the "Lease") to which these Rules and Regulations are attached.
Definition of terms are set forth in the Lease.
The following Rules and Regulations have been formulated for the safety
and well-being of all tenants of the Building and to insure compliance with all
municipal and other requirements. Strict adherence to these Rules and
Regulations is necessary to promote the end that each and every tenant will
enjoy a safe and undisturbed occupancy in the Building in accordance with the
Lease. Any continuing violation of these Rules and Regulations by Tenant beyond
any grace period provided for in the Lease, after notice from Landlord, shall be
an Event of Default under the Lease.
Landlord may at its exclusive discretion, upon request by any tenant,
waive the compliance by such tenant with any of these Rules and Regulations,
provided that (i) no waiver shall be effective unless signed by Landlord or
Landlord's authorized agent, (ii) any such waiver shall not relieve such tenant
from the obligation to comply with such rule or regulation in the future unless
expressly consented to by Landlord, (iii) no waiver granted to any tenant shall
relieve any other tenant from the obligation of complying with the Rules and
Regulations unless such other tenant has received a similar waiver in writing
from the Landlord, and (iv) any such waiver by Landlord shall not relieve Tenant
from any obligation or liability of Tenant to Landlord pursuant to the Lease for
any loss or damage occasioned as a result of Tenant's failure to comply with any
such rule or regulation.
B-1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and halls and other parts of the Building not occupied by
any tenant shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the premises. Landlord shall
have the right to control and operate the public portions of the Building, and
the facilities furnished for common use of the tenants, in such manner as
Landlord deems best for the benefit of the tenants generally. Tenant shall not
permit the visit to the Premises of persons in such numbers or under such
conditions as to interfere with the use and enjoyment by other tenants of the
entrances, corridors and other common or public portions or facilities of the
Building.
B-2. No awning or other projections shall be attached to the outside
walls of the Building without the prior written consent of Landlord. No drapes,
blinds, shades, or screens shall be attached to or hung in or used in connection
with any window or door of the Premises, without the prior written consent of
Landlord. Such awnings, projections, curtains, blinds,
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shades, screens or other fixtures must be of a quality, type, design and color,
and attached in a manner approved by Landlord.
B-3. No showcases or other articles shall be put in front of or affixed
to any part of the exterior of the Building.
B-4. The toilets, urinals, lavatories, drinking fountains, janitor sinks
and other plumbing fixtures shall not be used for any purposes other than those
for which they were constructed, and no sweeping, rubbish, rags, or other
substances shall be thrown therein. All damages resulting from any misuse of the
fixtures shall be borne by the tenant who, or whose servants, employees, agents,
visitors or licensees, shall have caused the damage.
B-5. There shall be no marking, painting, drilling into or in any way
defacing the Building or any part of the Premises, other than ordinary office
decorations except as otherwise provided in the Lease. Tenant shall not
construct, maintain, use or operate within the Premises any electrical device,
wiring or apparatus in connection with a loud speaker system or other sound
system, except as reasonably required for its communication system and approved
prior to the installation thereof in writing by Landlord. No such loud speaker
or sound system shall be constructed, maintained, used or operated outside of
the Premises.
B-6. No animals, birds or pets of any kind shall be brought into or kept
in or about the Premises, or permitted by the Tenant on the Premises. Tenant
shall not cause or permit any offensive odors, vapors, or other substances to be
produced upon or to emanate from the Premises.
B-7. The use of the Premises by the Tenant as stated in the Lease was
approved by Landlord prior to execution of the Lease and such use may not be
changed without the prior written approval of Landlord.
B-8. Tenant shall not make any unseemly or disturbing noises or disturb
or interfere with occupants of this or neighboring buildings or premises or
those having business with them, whether by the use of any musical instrument,
radio, talking machine, unmusical noise, whistling, music, dancing, singing, or
in any other way. Tenant shall not throw anything out of the doors or windows or
down the corridors or stairs.
B-9. No flammable, combustible or explosive fluid, chemical or substance
shall be brought or kept upon the Premises unless in quantities and stored in a
manner complying with all applicable fire codes and other laws and regulations.
B-10. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows by the Tenant, nor shall any changes be made in existing
locks or the mechanism thereof, without the express written consent of Landlord
which consent will not be unreasonably withheld, conditioned or delayed. Tenant
shall have the right to install a personal security system in accordance with
the terms of the Lease. Tenant shall, upon the termination of his tenancy,
return to the Landlord all keys of stores, offices, storage and toilet rooms
either furnished to, or otherwise procured by Tenant, and in the event of the
loss of any keys so
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furnished, Tenant shall pay to Landlord the reasonable cost for the loss
thereof. Tenant's key system shall be separate from that for the rest of the
Building.
B-11. Tenant shall prohibit its employees and visitors from leaving
trucks and other vehicles parked with their motors running adjacent to the
Building.
B-12. All deliveries to, or shipments from, or service to, the Demised
Premises done by Tenant, its agents and contractors shall be conducted in such
fashion and at such times as will not unreasonably interfere with or obstruct
the orderly flow of pedestrian traffic into and out of the Building.
B-13. The Premises shall not, at any time, be used for lodging or
sleeping or for any illegal purpose.
B-14. Landlord's employees shall not perform any work or do anything
outside of their regular duties, unless under special instruction from the
management of the Building. The requirements of Tenant will be attended to only
upon application to Landlord or its management agent, and any such special
requirements shall be billed to Tenant (and paid with the next installment of
rent due) at the schedule of charges maintained by Landlord from time to time or
at such charge as is agreed upon in advance by Landlord and Tenant.
B-15. Canvassing, soliciting and peddling in the Building is prohibited
and Tenant shall cooperate to prevent the same.
B-16. There shall not be used in any space, or in the public halls of
the Building, either by Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards, and Tenant shall be responsible to Landlord for any loss or
damage resulting from any deliveries of Tenant's to the Building.
B-17. Mats, trash or other objects shall not be placed in the public
corridors or stairways.
B-18. Drapes and blinds installed by Landlord for the use of Tenant, or
curtains installed by Tenant, which are visible from the exterior of the
Building, must be cleaned by Tenant at least once a year, without notice, at
Tenant's own expense.
B-19. All office and other machines shall be installed upon proper
insulation or pads, to prevent vibration from such machines damaging the
Building.
B-20. Tenant shall, at Tenant's expense, subscribe to a pest control
service for its Premises as necessary.
B-21. Tenant will not install any vending or coin operating machines
without Landlord's approval which approval will not be unreasonably withheld,
conditioned or delayed, and if such vending machines are installed, proper
ventilation shall be provided by Tenant.
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B-22. Tenant may not store any equipment, furniture or boxes outside of
the Building, except as approved in writing by Landlord.
B-23. In the event of any conflict between the provisions of these Rules
and Regulations and the Lease, the provisions of the Lease shall control.
B-24. No bicycles, motorcycles, motor scooters or other vehicles of any
kind shall be brought into, stored, operated or parked anywhere within the
Building or Demised Premises, or parked in front of or adjacent to or leaned
against the Building, and instead shall be parked in areas designated by
Landlord.
Initials of:
/s/ PNC
------------------------
Landlord
/s/ NLA
------------------------
Tenant
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EXHIBIT "C"
BUILDING SHELL
The Building Shell for Building #7 in Phase II of Seneca Meadows Corporate
Center shall substantially include the improvements shown and described in the
construction plans and specifications prepared for Landlord by the following
consultants:
CIVIL ENGINEER: Rodgers & Associates
9260 Gaither Road
Gaithersburg, Maryland 20877
Telephone: (301) 948-4700, Fax: (301) 948-6256
Contact: Kim McCary
C-1 Final Site Plan
C-2 Site Plan Details
C-3 Sediment Control Plan
C-4 Stormwater Management Plan
C-5 Sediment Control Details & Notes
C-6 Storm Drain Profiles
C-7 Baysaver & Level Spreader Details
C-8 Stormwater Management Wetlands Planting Plan
C-9 On-site Water & Sewer Plan & Profiles
L-1 Landscape Plan
ARCHITECT: Banta Campbell Architects, Inc.
7165-A Columbia Gateway Drive
Columbia, Maryland 21046
Telephone: (410) 290-1292, Fax: (410) 290-1298
Contact: Mark D. Banta, AIA
CS Cover Sheet
A0.0 Index Sheet, Abbreviations and Symbols
A-1 Floor Plan
A-1.1 Sidewalk Plan
A-2 Roof Plan
A-3 Exterior Elevations
A-4 Door & Hardware Schedules and Details
A5.1 Wall Elevations
A5.2 Wall Elevations
A6.1 Section Details
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A6.2 Section Details
A7.1 Plan Details
STRUCTURAL ENGINEER:
Fernandez & Associates Structural Engineers, P. C.
101 Park Washington Court
Falls Church, Virginia 22046-4519
Telephone: (703) 533-7700, Fax: (703) 534-0319
Contact: Luis Fernandez, P. E.
S-101 Foundation Plan
S-102 Roof Framing Plan
S-201 Sections
S-202 Sections
S-203 Sections
S-204 Sections
S-205 Sections
S-301 Column Schedule
S-401 Typical Details & Structural Notes
MECHANICAL, ELECTRICAL & PLUMBING ENGINEER:
Mendoza, Ribas, Farinas & Associates
6265 Executive Boulevard
Rockville, Maryland 20852
Telephone: (301) 468-8882, Fax: (301) 770-2567
Contact: Jorge V. Ribas, P. E.
M-1 Cover Sheet
M-2 Floor Plan
M-3 Roof Plan
E-01 Floor Plan Power
E-02 Floor Plan Lighting
E-03 Roof Plan
E-04 Main Electric Room Power Riser Diagram & Schedules
E-05 F. A. Annunciator, Telephone Riser & Pole Base Detail
E-06 Symbols List & Schedules
E-07 Electrical Site Plan
P-01 Floor Plan, Risers & Symbols List
P-02 Roof Plan, Riser Diagrams & Details
P-T1 Partial Floor Plans, Riser Diagrams, Symbols List &
Details
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GEOTECHNICAL ENGINEER:
Schnabel Engineering Associates, Inc.
10215 Fernwood Road, Suite 250
Bethesda, Maryland 20817-1106
Telephone: (301)564-9355, Fax: (301) 530-6376
Contact: Bill Khouri, P. E.
The leasehold improvements are being constructed by the Tenant's general
contractor as the Tenant's Work, and the Building Shell does not include the
following improvements shown on the above listed contract drawings:
- Rooftop HVAC equipment and connections.
- Restrooms and above ground plumbing.
- Electric services outside of the main meter room.
- Fire alarm suppression system.
The Building Shell does include the replacement of four (4) overhead doors with
insulated storefront panels to match the other storefront in the Building, as
well as the modifications to the storefront entrances shown on the Landlord's
contract drawings to accommodate the entrances shown on Tenant's preliminary
plans.
Landlord represents that, to its actual knowledge, the Building Shell has been
or will be, as the case may be, constructed in accordance with all applicable
Laws.
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GENERAL BUILDING SHELL SPECIFICATIONS
CONCRETE
1. Spread Footings.
- 3,000 psi, normal weight concrete.
- Reinforced with steel rods (Grade 60) as necessary.
- Minimum bearing strength of soil - 3,000 psf.
2. Slab on Grade (rated for 250 psf).
- 4" washed gravel or #57 stone subgrade.
- 6 mil polyethylene vapor barrier.
- 2" polystyrene perimeter insulation, 2' down & 2' under.
- 5" thick, 3,000 psi, normal weight concrete.
- Reinforced with 6x6-W2.1xW2.1 welded wire fabric.
- 1 coat of floor hardening, sealing compound.
3. Curbs, gutters, sidewalks.
- 3,000 psi, normal weight concrete with air entrainment.
STRUCTURAL STEEL
- Structural Steel to be ASTM A-572-G50 or A-36.
- K-Series open web steel joists.
- Roof deck on bar joists - 22 gauge painted "B" deck.
- Structural steel angle frames for hanging masonry and
for HVAC curb supports.
- 18' nominal clear height to underside of structure.
MASONRY
- CMU foundation walls as required.
- Face Brick (closure and/or utility size) on all sides of
Building.
- Galvanized steel wire and rod reinforcement as
necessary.
- Flashing over all openings as required.
- Colored mortar to match face brick.
MISCELLANEOUS METALS
- Kynar finish, aluminum roof screen and soffit panels.
- Light gage metal stud framing for infill panels.
- Aluminum wall louvers as necessary.
ROOFING
- 5 ply asphalt built-up roof system with type 3 asphalt
and Texas #4 gravel ballast.
- 2 layer rigid insulation mechanically fastened to roof
deck: 2" Polyisocyanurate + 3/4" fiberglass.
- Tapered edge strips, crickets and cants.
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- Flashings to be 2 ply modified bitumen mineral surface.
- Kynar finish aluminum coping.
WINDOWS, DOORS & GLAZING
- 1" tinted, reflective, low-E insulating glass for all
windows.
- Tempered or safety glass in all door units and panels
adjacent to doors.
- Bronze anodized finish aluminum window frames, glass
door frames and storefront systems (Kawneer or equal),
with hardware as appropriate.
- Factory finished 20 gauge, 8' x 10', high bay, steel,
insulated, spring loaded, overhead doors with dock
bumpers.
- 16 gauge exterior steel doors with polyurethane cores,
flush end closure, and 16 gauge, welded steel frame.
THERMAL & MOISTURE PROTECTION
- Caulk all exterior masonry control joints (color to
match face brick).
- Bituthene sheet membrane waterproofing on walls below
grade.
- Safing insulation where required.
SPRINKLER
- Complete wet sprinkler system in accordance with NFPA
#13 and NFPA #231-C as appropriate.
- Brass upright heads in unfinished areas below roof deck.
- Sprinkler main alarmed for both flow and tamper.
PLUMBING
- 8" combined water service for sprinkler system and
domestic water.
- Copper water lines (3" main & hose bibbs).
- Schedule 40 PVC pipe for underground sanitary sewer
lines.
- Cast iron pipe for roof drains.
- Gas main to the Building.
ELECTRIC
- 1600 amp, 480 volt electric service to landing box in
meter room with a 1600 amp trough.
- 400 watt, metal halide lamps on 25' poles ( 2 or 4 per
pole) in parking lot, controlled by photocells.
- 400 watt, metal halide wall packs.
- Other exterior fixtures per Building Shell drawings.
- House panel in meter room for common area lighting.
CARPENTRY
- Wood blocking for roof coping and hatches.
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FINISHES
- Exterior grade semi-gloss on all painted metal doors,
frames, and railings.
PAVING
- Pavement section to be 6" crushed stone, 4" base asphalt
& 2" topping.
SPECIALTIES
- 1" horizontal slat, mini blinds on all windows.
- 4' dock heights at all overhead doors.
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<PAGE> 56
EXHIBIT "D"
SPECIMEN LETTER OF CREDIT
Date: ___________________
IRREVOCABLE LETTER OF CREDIT
NUMBER ___________
Westphalia Center II Limited Partnership
c/o Minkoff Development Corporation
9108 Gaither Road
Gaithersburg, Maryland 20877
Gentlemen:
We hereby establish our irrevocable credit in your favor, by order and
for account of LARGE SCALE PROTEOMICS CORPORATION, a Delaware Corporation, with
offices at 20439, 20441, 20443, 20445, 20447, 20449 AND 20451 GOLDENROD LANE,
GERMANTOWN, MARYLAND, 20876, in the maximum aggregate amount of SEVEN HUNDRED
SIXTEEN THOUSAND TWO HUNDRED THIRTY-TWO AND 00/100 DOLLARS ($716,232.00) (U.S.),
available by your draft(s) on us providing for payment at sight upon your
presentation to us, in a total amount of up to the undrawn portion of said
maximum aggregate amount, to be accompanied by a certificate of one of your
general partners dated the date of presentation of said draft, stating that (i)
an Event of Default has occurred and is continuing under the terms of that
certain Lease Agreement dated ___________, 2000, by and between you and LARGE
SCALE PROTEOMICS CORPORATION, that all time periods for cure of such Event of
Default have expired, and that you are entitled to receive payment of the amount
of said draft pursuant to this Letter of Credit, and (ii) said general partner
has mailed to LARGE SCALE PROTEOMICS CORPORATION an undated and unsigned, but
otherwise identical, copy of said certificate prior to its delivery to us, by
certified or registered mail and otherwise in accordance with the terms of said
Lease Agreement.
This Letter of Credit remains in force until the ___ day of __________,
_____; and all drafts drawn hereunder must be presented for payment at our Main
Office at ________________________________, on or before that date.
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We are authorized to accept any statement furnished by you hereunder as
binding and correct, without investigation or responsibility for the accuracy,
veracity or conclusive correctness or validity of same or any part thereof.
This credit is a notation credit, as defined in Section 5-108 of the
Uniform Commercial Code. Therefore, this original credit must accompany any
drafts drawn hereunder in order that the payments made might be endorsed hereon.
Drafts drawn under this credit must be marked: "Drawn Under Irrevocable
Letter of Credit Number _________, dated ____________, _____, of
___________________________."
We hereby engage with you that drafts drawn and presented in compliance
with the terms of this credit will be duly honored by us if presented at this
office on or before the expiration date hereof (________________, ____).
Except so far as otherwise expressly stated, this credit is subject to
the Uniform Customs and Practice for Documentary Credits (1974 Revision),
International Chamber of Commerce Brochure No. 290.
Very truly yours,
(NAME OF BANK)
By:
-------------------------------------
Office Held
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EXHIBIT "E"
LANDLORD'S CONSENT AND WAIVER
THIS LANDLORD'S CONSENT AND WAIVER made as of this _____ day of
___________, 2000, between WESTPHALIA CENTER II LIMITED PARTNERSHIP, a Maryland
limited partnership, with its principal place of business at 9108 GAITHER ROAD,
GAITHERSBURG, MARYLAND 20877 (the "Landlord"), and
_______________________________, a ___________________ corporation ("Lender"),
and LARGE SCALE PROTEOMICS CORPORATION, a Delaware corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord is the owner of certain real estate known by
street address as SENECA MEADOWS CORPORATE CENTER, 20439, 20441, 20443, 20445,
20447, 20449 AND 20451 GOLDENROD LANE (GERMANTOWN, MONTGOMERY COUNTY, MARYLAND
(hereinafter called "Premises"); and
WHEREAS, Landlord has leased the Premises pursuant to the terms
of a certain lease dated _____________________, (the "Lease") to Tenant; and
WHEREAS, contemporaneously herewith, the Tenant and the Lender
have entered into certain financing transactions and in connection therewith the
Tenant has granted to the Lender a security interest in that part of the
Tenant's presently owned and hereafter-acquired accounts receivable, inventory
as set forth in Exhibit "A" attached hereto and made a part hereof and proceeds
thereof ("Collateral") pursuant to that certain Loan and Security Agreement
dated ________________ ("Agreement") between Tenant and Lender; and
WHEREAS, as a condition of said financing transactions, the
Lender has required Tenant to obtain from the Landlord this Landlord's Consent
and Waiver.
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. To the best of Landlord's and Tenant's knowledge, the Lease
is in full force and effect, is binding upon the parties thereto in accordance
with its terms and no event has occurred which, with the passage of time or upon
notice or both would give rise to the Landlord's right to terminate the Lease.
However, nothing contained herein shall waive any rights of Landlord or
obligations of Tenant with respect to any defaults of Tenant under the Lease of
which Landlord may become aware.
2. The Tenant and Lender hereby inform Landlord of the existence
of, and Landlord hereby acknowledges being so informed of the Tenant's grant of
a security interest to
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the Lender in the Collateral, and consents thereto. However, nothing herein
contained shall impose upon Landlord any liability for any payments or
performance under the Agreement or with respect to any loans made by Lender to
Tenant or under any documents now or hereafter evidencing or securing such
financing.
3. The Landlord hereby subordinates in favor of the Lender to
the extent only of the outstanding Obligations (as defined in the Agreement)
from time to time owed by Tenant to Lender pursuant to the Agreement, any lien,
claim or interest, including but not limited to any Landlord's lien or right to
distress for rent, which the Landlord may have or may hereafter acquire as to
the Collateral whether presently located at the Premises or hereafter to be
located at the Premises. In the event of a default of Tenant under the
Agreement, or in the event Landlord terminates the Lease by reason of default of
Tenant thereunder, then in either such event Lender shall, subject to Lender's
recourse under law and upon giving Landlord at least 24 hours prior written
notice, have the right to enter the Premises and to remove the Collateral
therefrom (but only if the Collateral is then located in the Premises), provided
that Lender shall do so at its own expense and shall complete such removal
within thirty (30) days after the termination of the Lease, and Lender shall
promptly repair at its own expense all damage to the Premises and to any
property of Landlord or others caused by such removal. Any such Collateral not
removed from the Premises within said thirty (30) days may be removed by
Landlord and stored or disposed of, at the risk, cost and expense of Tenant and
without liability upon Landlord for any damage or loss thereof. Nothing herein
contained shall impose upon Landlord any liability or obligation to see to the
safety, security, repair or protection of the Collateral, nor for any loss
thereof or damage thereto.
4. If Landlord terminates the Lease and recovers possession of
the Premises, then the Lender and Tenant agree that Landlord, at its option and
exclusive discretion, shall have the right (but not the obligation) to relocate
and consolidate any or all of Tenant's personal property forming part of the
Collateral to one or more locations within the Premises as determined by
Landlord (the "Storage Area"), at the risk and expense of Tenant and with no
liability upon Landlord for any damage to or loss of any such Collateral. At all
times from and after any termination of the Lease and recovery of possession of
the Premises as a result of Tenant's default (and subject to Lender's rights
hereunder applicable during the thirty (30) days mentioned in Paragraph 3),
Landlord shall have the right to offer for leasing and to lease the Premises in
whole or part to any one or more tenants, and to show the Premises to such
prospective or new tenants, and Tenant and Lender shall not interfere with any
such actions taken by Landlord. Landlord's rights under this paragraph shall not
limit any of its other rights and remedies under the Lease in any circumstances
whatsoever.
5. During the period commencing on the date Landlord terminates
the Lease and recovers possession of the Premises as a result of Tenant's
default and ending on the date (the "Termination Date") which is the earlier to
occur of (a) the date Lender and/or Tenant have removed all of the Collateral
from the Premises, or (b) the 30th day after the date Landlord so terminates the
Lease and recovers possession of the Premises, Landlord will permit the Lender
to enter the Storage Area in which the Collateral is located, solely for the
purpose of removing and/or selling the Collateral at the sole risk, cost and
expense of the Lender and at no liability or
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expense to the Landlord. Lender shall at its own expense repair any damage to
the Premises caused by any acts, omissions or negligence of Lender, its agents,
invitees, employees or contractors ("Lender Faults"), and Lender shall
indemnify, defend and hold Landlord harmless from all loss, costs, damage,
litigation, reasonable attorneys' fees and claims arising out of any such Lender
Faults. Any of the Collateral remaining in the Premises after the Termination
Date may be removed, stored, disposed of or otherwise dealt with by Landlord at
the risk, cost and expense of Tenant and without liability upon Landlord for any
loss or damage to such Collateral.
6. During all periods of time while the Lender and/or its
agents, employees or contractors ("Lender Parties") are using the Storage Area
or any portion thereof for the purposes authorized and described in paragraph 5
above, or while Lender or any Lender Parties are using any of the Premises
pursuant to Paragraph 3, the Lender shall pay to Landlord per diem rent for such
Storage Area or Premises so used (calculated on a monthly basis by multiplying
the monthly rental including pass-throughs for real estate taxes, insurance and
common area charges payable by Tenant for the last full calendar month of the
Lease in which such monthly rental was payable prior to termination of the
Lease); such per diem rent to be paid in an amount equal to 1/30th of such
monthly rental and other sums for each day that the Lender Parties are making
use of such Storage Area or of any other part of the Premises as aforesaid. Such
rental payments shall be made by Lender to Landlord within five (5) days after
each request of Landlord; such request to be made not more often than once every
seven (7) days. Said per diem rental payments shall be calculated without regard
to any rental abatement provisions of the Lease.
7. The Landlord further agrees that the Collateral shall at all
times be deemed personal property and not real property or in any way part of
the Premises. Landlord will endeavor to give to Lender written notice of any
default of Tenant under the Lease which would entitle Landlord to terminate the
Lease, or of any termination of the Lease by Landlord, provided that Landlord
shall incur no liability to Lender or to Tenant or to their successors or
assigns if Landlord fails to give any such notice. Notwithstanding the
foregoing, in no event shall the Collateral be deemed to include any property
which is permanently affixed to the Premises, including but not limited to any
mechanical, electrical or plumbing equipment necessary for the operation of and
forming part of said Premises, by whomsoever installed therein.
8. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery, facsimile telecopier, telegram or
telex, addressed as follows:
If to Lender:
----------------------------
----------------------------
----------------------------
Attn:
-----------------------
Telefacsimile No.
-----------
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If to Landlord:
Westphalia Center II Limited Partnership
9108 Gaither Road
Gaithersburg, Maryland 20877
Attn: Paul N. Chod
Telefacsimile No. 301-948-1168
If to Tenant:
Large Scale Proteomics Corporation
----------------------------
----------------------------
Attn:
-----------------------
Telefacsimile No.
-----------
Each party may designate to the others by notice in writing, sent at least
thirty (30) days before such address change is effective, a new address to which
any notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request, or communication which shall be mailed,
delivered or transmitted in the manner described above shall be deemed
sufficiently given, served, sent and received for all purposes at such time as
it is delivered to the addressee (with the return receipt, the delivery receipt,
the affidavit of messenger or (with respect to a telex or telefacsimile) the
printed telecopier receipt or answerback being deemed conclusive evidence of
such delivery) or at such time as delivery is refused by the addressee upon
presentation or is attempted but prevented due to invalid address furnished by
the addressee to the Sender.
9. This Landlord's Consent and Waiver shall be binding upon and
shall inure to the benefit of the Landlord and its successors and assigns and
shall be binding upon and inure to the benefit of the Lender and the Tenant and
their respective successors and assigns. Provided Lender gives Landlord, within
seven (7) days after Lender's receipt of written request therefor, the
information described in paragraph 10 below, Landlord agrees that if while
Landlord has actual knowledge that any Obligations of Tenant to Lender under the
Agreement remain unpaid the Landlord sells and conveys the Premises, then in
such event Landlord will at the time of such sale endeavor to inform its
purchaser as to the existence of this Landlord's Consent and Waiver and will
endeavor to provide its purchaser a copy hereof provided, however, that Landlord
shall incur no liability to Lender, its successors or assigns if Landlord fails
to give any such notices described in this paragraph. However, the provisions of
this paragraph and the other provisions of this instrument shall only bind the
owner of the Premises, as Landlord, while such party owns fee simple record
title to the Premises.
10. Lender shall promptly notify Landlord in writing when the
Tenant's Obligations under the Agreement have been fully paid and when the
Agreement has been terminated; whereupon this Agreement and all of Lender's
rights and Landlord's obligations
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hereunder shall fully and forever terminate, and Lender will join with Landlord
and Tenant in executing an instrument as reasonably requested and furnished by
Landlord confirming such termination hereof. Lender agrees to provide Landlord a
written statement as to the outstanding balance of the Obligations of Tenant
under the Agreement on Landlord's reasonable request, and Tenant hereby consents
to Lender providing said information to Landlord.
11. Nothing herein contained shall be deemed to modify the Lease
in any respect except for the subordination of Landlord's lien herein provided.
IN WITNESS WHEREOF, the parties hereto have executed this
Landlord's Consent and Waiver as of the date first above written.
LANDLORD:
WESTPHALIA CENTER II
LIMITED PARTNERSHIP
By:
--------------------------------- --------------------------------------
Witness Paul N. Chod, General Partner
LENDER:
-----------------------------------------
By:
--------------------------------- --------------------------------------
Witness Name/Title
TENANT:
LARGE SCALE PROTEOMICS CORPORATION
By:
--------------------------------- --------------------------------------
Witness Name/Title
56