Maryland-Gaithersburg-35 West Watkins Mill Road Lease [Amendment No. 4] - Clopper Road Associates and MedImmune Inc.
FOURTH AMENDMENT OF LEASE
THIS FOURTH AMENDMENT OF LEASE (this "Amendment") is
made this 3rd day of October, 1996 (the "Effective Date") by and
between CLOPPER ROAD ASSOCIATES, a Maryland joint venture
("Landlord"), and MEDIMMUNE, INC., a Delaware corporation
("Tenant").
EXPLANATORY STATEMENT
A. Landlord and Tenant entered into a Lease Agreement
dated February 14, 1991 (the "Original Lease"), whereby Tenant
agreed to lease from Landlord Forty Thousand Eight Hundred Forty-
Three (40,843) square feet (the "Original Leased Premises") in
the building (the "Building") known as Building D, located at
35 West Watkins Mill Road, in the Bennington Corporate Center in
Gaithersburg, Maryland.
B. Landlord and Tenant entered into a First Amendment of
Lease dated June 8, 1993 (the "First Amendment"), pursuant to
which Building D was expanded and the square footage of the
Original Leased Premises was increased by the amount of such
expansion (the "Expansion Space") (collectively, the Original
Leased Premises and the Expansion Space shall be hereinafter
referred to as the "Expanded Leased Premises"). Certain other
changes were also made to the Original Lease as a result of the
First Amendment.
C. Landlord and Tenant entered into a Second Amendment of
Lease dated June 30, 1993 (the "Second Amendment"), pursuant to
which the square footage of the Expanded Leased Premises was
increased by adding space (the "Second Expansion Space") in
Building B located at 25 West Watkins Mill Road in the Bennington
Corporate Center in Gaithersburg, Maryland (collectively, the
Original Leased Premises, the Expansion Space and the Second
Expansion Space are hereinafter referred to as the "Leased
Premises"); the Rent payable was adjusted, and certain other
changes were made to the Original Lease.
D. Landlord and Tenant entered into a Third Amendment of
Lease dated April 15, 1996, but effective as of January 1, 1995
(the "Third Amendment") to adjust square footages, percentages
and addresses set forth in the Original Lease as amended.
E. The Original Lease and the First, Second and Third
Amendments are herein collectively referred to as the "Lease."
F. As a result of the termination of a lease for space
adjoining the portion of the Leased Premises in Building B,
Landlord and Tenant desire to expand the Leased Premises in
Building B, adjust the square footages and percentages in the
Lease, and modify certain other provisions of the Lease, as more
specifically set forth below.
NOW, THEREFORE, in consideration of the Explanatory
Statement, which is deemed a substantive part of this Fourth
Amendment, the covenants of the parties herein and in the Lease
and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
1. Effective Date of Fourth Amendment. From and after the
date of this Fourth Amendment, the Lease shall be amended as set
forth below.
2. Capitalized Terms. All capitalized terms in this Fourth
Amendment shall have the same meanings as those in the Lease,
unless specifically set forth otherwise herein.
3. VAD Space. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, in addition to the Leased
Premises, approximately Eleven Thousand Four Hundred Fifty-Five
(11,455) rentable square feet in Building B (the "VAD Space").
The VAD Space is shown more particularly on Exhibit A attached
hereto and made a part hereof.
4. Condition of VAD Space. The Tenant hereby accepts the
VAD Space in "AS-IS" condition, subject to the VAD Space
Construction as described below and subject to Landlord's duties
otherwise provided herein.
5. VAD Space Construction.
a. VAD Space Plans. Landlord shall cause the tenant
improvements for the VAD Space as defined below (the "VAD Space
Construction" ) to be constructed. Landlord shall provide all
work, labor and materials in support of the VAD Space
Construction in accordance with the plans and specifications for
the VAD Space (the "VAD Space Plans"), which VAD Space Plans have
been approved and initialed by the parties. The VAD Space Plans
are described more fully on Exhibit B attached hereto and made a
part hereof. Tenant may occupy the VAD Space during the VAD Space
Construction; provided that Tenant shall cooperate with Landlord
and Landlord's employees, contractors and subcontractors to
ensure that Tenant's occupancy shall not interfere with the VAD
Space Construction.
Landlord shall contribute a maximum of Eighty-Five
Thousand Nine Hundred Twelve Dollars and Fifty Cents ($85,912.50)
("Landlord's Contribution") toward the cost of the VAD Space
Construction. If the cost of such Construction exceeds Landlord's
Contribution, then Tenant shall pay the excess cost to Landlord
within thirty (30) days of receipt of an invoice or invoices
therefor from Landlord.
b. Change Orders. Any Tenant-generated change orders
to the VAD Space Plans shall be approved by Landlord, which
approval shall not be unreasonably withheld or delayed. If the
cost of the VAD Space Construction is increased due to any one or
more such change orders, Tenant shall pay Landlord such increased
cost within thirty (30) days of Tenant's receipt of an invoice
therefor from Landlord.
c. Landlord's VAD Space Warranty. At the termination of
Landlord's VAD Space Warranty Period (as defined below), Landlord
hereby agrees to and will assign to Tenant, to the extent they
are assignable, any and all written warranties and guarantees
from Landlord's contractors, subcontractors and suppliers of any
materials and labor to the VAD Space, for that portion, if any,
of the Lease Term that such warranties and guarantees are in
effect. Landlord hereby warrants ("Landlord's VAD Space
Warranty") to Tenant that Landlord will be responsible for a
period ("Landlord's VAD Space Warranty Period" ) of one (1) year
from the VAD Space Commencement Date (as defined below) to repair
or to have repaired all defects in the VAD Space Construction, to
the extent such defects are not caused by the negligence of
Tenant or any of its agents, servants, employees or contractors
(in which event such defects will be repaired at Tenant's sole
cost). To the extent that Landlord is obligated to make repairs
pursuant to Landlord's VAD Space Warranty, Tenant will be
relieved during Landlord's VAD Space Warranty Period of the
obligations imposed upon it pursuant to this Fourth Amendment to
make or pay for such repairs to the VAD Space. Tenant agrees to
and will give Landlord prompt notice of the need for any such
repairs.
6. Construction Provisions of Original Leased Premises Not
Applicable to Expansion Space. Article I.B of the Original Lease,
Paragraphs 4 through 7 of the First Amendment, and Paragraph 5 of
the Second Amendment shall not apply to the VAD Space, except as
specifically set forth in this Fourth Amendment.
7. Term of VAD Space Lease. The VAD Space Lease Term will
commence on the VAD Space Commencement Date, as defined below,
and will end on the last day of the Lease Term.
a. Cancellation Option. Paragraph II.B.(1)
(Acquisition Event Option) of the Original Lease, as amended by
the First and Second Amendments, shall apply to the VAD Space.
Paragraph II.B(2) and (3) of the Lease shall not
apply to the VAD Space.
The third paragraph of Paragraph 8 of the Second
Amendment shall not apply to the VAD Space.
In addition to Tenant's rights under Paragraph
II.B of the Lease as amended hereunder, Tenant shall have
the right to terminate this Lease with respect to the VAD
Space only (for purposes of this Paragraph 7 only,
termination of the Lease shall be deemed to be termination
of the Lease with respect to the VAD Space only) at any time
from and after June 30, 1998 through and including November
30, 2001, upon at least six (6) months' prior written notice
to Landlord, which notice may be delivered to Landlord at
any time from and after December 30, 1997 through and
including May 30, 2001. If Tenant exercises its right to
terminate this Lease under this Paragraph 7, Tenant shall
pay Landlord by certified or bank cashier's check made
payable to Landlord, or at Landlord's option, by wire
transfer of immediately available funds to Landlord's
account, on or before the month immediately preceding the
proposed date of Lease termination in Tenant's notice, a fee
(the "Fee") of Ninety Thousand Dollars ($ 90,000.00) and as
of the Lease termination date hereunder, Tenant shall have
cured any uncured monetary default under the Lease,
including any late fees due thereon, without any obligation
to pay any accelerated Rent. Notwithstanding the
immediately preceding sentence, the Fee shall be reduced by
One Thousand Seven Hundred Dollars ($1,700.00) per month
commencing on June 30, 1998. If Tenant's termination of the
Lease under this Paragraph is effective on November 30,
2001, Tenant shall owe no Fee upon termination of the Lease
hereunder.
The fourth paragraph of Paragraph 8 of the Second
Amendment shall apply to the VAD Space and shall be amended by
striking the first sentence thereof and substituting the
following:
"Landlord shall provide to the Tenant not later
than thirty (30) days before (a) the last day of the
Second Expansion Space Lease Term pursuant to
Tenant's notice of termination under this Paragraph
(the "Second Expansion Space Termination Date"); or
(b) the date of termination of the Lease set forth in
Tenant's notice to Landlord with respect to the VAD
Space (the "VAD Space Termination Date") (the term
"Termination Date" shall refer to the VAD Space or
Second Expansion Space Termination Date, as
applicable), a termination rent statement (the
"Termination Rent Statement"), which Termination Rent
Statement shall set forth through the Termination
Date all then-uncured monetary defaults with respect
to Basic Annual Rent, including any previously-billed
and unpaid late fees due on any and all such late
payments of Basic Annual Rent, and all Basic Annual
Rent which is then unpaid or which will be payable
under the Lease through and including the Termination
Date."
b. VAD Space Commencement Dates.
(i) The VAD Space Commencement Date for Phase I
shall be the date that (i) Phase I of the VAD Space
Construction, as shown on Exhibit A, is substantially complete,
as certified to Tenant by Landlord's architect for the VAD
Space Construction; (ii) Landlord has obtained a temporary
certificate of occupancy and all other licenses and permits
required with respect to construction-related issues only, for
Phase I of the VAD Space Construction; and (iii) the lease
between Landlord and VAD for the VAD Space has been terminated
pursuant to a fully-executed Termination of Lease Agreement
between VAD and Landlord. (Landlord and Tenant agree that
Landlord shall use best efforts to obtain such a Termination of
Lease Agreement by no later than 6 p.m. on Friday, September
13, 1996.) The VAD Space Commencement Date for Phase I shall be
pushed back one (1) day for each day that the VAD Space
Construction for Phase I is delayed due to (i) Tenant-generated
change orders to the VAD Space Plans; (ii) delays of any nature
whatsoever caused by Tenant; and/or (iii) Tenant negligence or
willful misconduct. Landlord shall give Tenant written notice
of the anticipated VAD Space Commencement Date for Phase I on
or about seven (7) days before such Date. Upon the occurrence
of the VAD Space Commencement Date for Phase I, Landlord and
Tenant shall execute a written statement setting forth such
Date.
(ii) The VAD Space Commencement Date for Phase
II shall be the date that Phase II of the VAD Space
Construction, as shown on Exhibit A, is substantially complete,
as certified to Tenant by Landlord's architect for the VAD
Space Construction, and the date that Landlord has obtained a
final certificate of occupancy and all other licenses and
permits required with respect to construction-related issues
only, for Phase II of the VAD Space Construction. The VAD Space
Commencement Date for Phase II shall be pushed back one (1) day
for each day that the VAD Space Construction for Phase II is
delayed due to (i) Tenant-generated change orders to the VAD
Space Plans; (ii) delays of any nature whatsoever caused by
Tenant; and/or (iii) Tenant negligence or wilful misconduct.
Landlord shall give Tenant written notice of the anticipated
VAD Space Commencement Date for Phase II on or about seven (7)
days before such Date. Upon the occurrence of the VAD Space
Commencement Date for Phase II, Landlord and Tenant shall
execute a written statement setting forth such Date.
c. Possession of VAD Space. This Fourth Amendment
will remain fully effective and Tenant may not cancel or
rescind it due to late possession, regardless of when
possession is actually delivered. Moreover, in no event will
Landlord be liable to Tenant for damages, if any, sustained by
Tenant as a result of Landlord's delay in delivering the VAD
Space, except damages sustained solely as a direct result of
Landlord's gross negligence or willful misconduct.
d. Acceptance of VAD Space. Upon Landlord's
delivery of possession of the VAD Space to Tenant, Tenant will
be deemed to have accepted the VAD Space, subject to Landlord's
duties otherwise provided herein.
8. Basic Annual Rent for VAD Space.
a. Amount of Basic Annual Rent for VAD Space. Basic
Annual Rent for the VAD Space shall equal One Hundred Forty-Six
Thousand Fifty-One Dollars and Twenty-Five Cents ($146,051.25)
per annum, payable in equal monthly installments of Twelve
Thousand One Hundred Seventy Dollars and Ninety-Four Cents
($12,170.94); provided, however, that for the period from the
VAD Space Commencement Date for Phase I through the VAD Space
Commencement Date for Phase II, the applicable monthly
installment of Basic Annual Rent shall equal Six Thousand
Eighty-Five Dollars an Forty-Seven Cents ($6,085.47). Payment
of the first monthly installment hereunder shall commence on
the VAD Space Commencement Date for Phase I; provided that if
payment commences on a date that is not the first day of a
month, then payment shall be pro-rated for the partial first
month in which payment commences. Basic Annual Rent shall
increase once annually on December 1, 1997 and on every
December 1 thereafter during the Lease Term at a fixed rate of
three percent (3%) per year.
b. Payment of Basic Annual Rent for VAD Space. The
above amounts of Basic Annual Rent for the VAD Space shall be
paid at the time and in addition to the payment of Basic Annual
Rent for the Leased Premises, and otherwise in the manner set
forth in Article III.B of the Lease.
c. Security Deposit. There shall be no Security
Deposit required hereunder for the VAD Space.
9. Adjustments to Square Footages and Percentages
a. Paragraph III.C(l)(c) of the Lease shall be
amended so that the term "Rentable Area of the Leased Premises"
shall be deemed to be Sixty-Nine Thousand Five Hundred Nine
(69,509) square feet rather than Fifty-Eight Thousand Fifty-
Four (58,054) square feet so that the term includes the VAD
Space. This amended square footage number shall apply
throughout the Lease to all references to the square footage of
the Leased Premises. However, the second through final
sentences of Paragraph III.C(l)(c) of the Lease, as amended
by this Fourth Amendment, shall not apply to the VAD Space.
There shall be no certification required of the gross Rentable
Area of the VAD Space.
b. Paragraph III.C(l)(e) of the Lease shall be
amended as of the VAD Space Commencement Date so that the term
"Tenant's Portion (with respect to the payment of Common
Area Expenses, Taxes and Insurance)" will be Fifty and Sixty-
Five One Hundredths Percent (50.65%) rather than Forty-Two
and Thirty-One One Hundredths Percent (42.31%), so that the
term includes the VAD Space. This amended Tenant's Portion
shall apply throughout the Lease.
c. The estimated amounts set forth in Paragraph
III.C(2) (a) and (b) of the Lease shall be amended as of the
VAD Space Commencement Date by adding thereto the estimated
amounts of such Taxes, Insurance and Common Area Expenses
for the VAD Space. Therefore, commencing on the VAD Space
Commencement Date, Tenant shall pay to Landlord, in
addition to the amounts set forth in the Lease sections
listed above, with and at the same time as the monthly payments
of Basic Annual Rent, the following amounts with respect to the
VAD Space:
(i) One Thousand Twenty-One Dollars and Forty
Cents ($1,021.40) per month as one-twelfth of Tenant's
estimated Portion of Common Area Expenses, which amount
includes One Hundred Forty-Three Dollars and Nineteen Cents
($143.19) per month as one-twelfth of Tenant's estimated
Portion of the Insurance Costs. The limitation on increases in
Common Area Expenses under the Lease shall apply to Tenant's
Portion of Common Area Expenses for the VAD Space, except that
the Common Area Expenses for the VAD Space for the first Lease
Year shall not be limited in any way.
(ii) One Thousand Four Hundred Forty-One
Dollars and Forty-Two Cents ($1,441.42) per month as
one-twelfth of Tenant's estimated Portion of Taxes.
10. Use Restrictions and Rules. Paragraph IV.A of the
Original Lease shall apply to the VAD Space.
11. Improvements by Tenant. Subsection (i) of the second
paragraph of Paragraph IV.B of the Lease shall be stricken in
its entirety and replaced with the following:
"(i) the aggregate cost of the same does not exceed
One Hundred Thousand Dollars ($100,000) with respect
to the Expanded Leased Premises, Fifty Thousand
Dollars ($50,000) with respect to the Second
Expansion Space, or Fifty Thousand Dollars ($50,000)
with respect to the VAD Space . . ."
12. Insurance. Paragraph IV.E of the Original Lease and
shall apply to the VAD Space.
13. Damage and Destruction. Article VI of the Lease shall
be amended by adding the underlined language to the last
paragraph thereof and adding a new paragraph at the end thereof
as follows:
Notwithstanding the preceding three (3) paragraphs of
this Article VI, if Landlord or Tenant has the right to
terminate the Lease pursuant to this Article VI due to damage
or destruction to the Expanded Leased Premises only (excluding
the Second Expansion Space and VAD Space) by fire, other
casualty, or any other cause (except condemnation), then
Landlord or Tenant automatically shall have the right pursuant
to this Article VI to terminate the Lease with respect to the
Second Expansion Space and VAD Space, regardless of whether the
Second Expansion Space and/or the VAD Space has suffered any
damage or destruction. In addition to the termination rights
with respect to the Second Expansion Space and VAD Space in the
immediately preceding sentence, Tenant shall have the right to
terminate the Lease with respect to the Second Expansion Space
and VAD Space within one (1) year of the date of damage or
destruction to the Expanded Leased Premises, upon thirty (30)
days' prior written notice to Landlord. In the event of such
termination, the same conditions shall apply as are set forth
in Article VI. If Landlord or Tenant has the right to terminate
the Lease pursuant to this Article VI due to damage or
destruction to the Second Expansion Space and/or VAD Space only
(excluding the Expanded Leased Premises), Landlord or Tenant
shall not have any right to terminate the Lease with respect to
the Expanded Leased Premises. If Landlord or Tenant duly
terminates the Lease under Article VI with respect to the
Second Expansion Space and/or VAD Space, the Lease shall remain
in full force and effect with respect to the Expanded Leased
Premises, and the Second Expansion Space and/or VAD Space shall
be stricken from the definition of "Leased Premises" under the
Lease. Upon such damage or destruction to the Second Expansion
Space and/or the VAD Space, the parties agree to enter into an
amendment to the Lease setting forth the reduced Leased
Premises and other related changes to the Lease, including,
without limitation, reduction of Basic Annual Rent and Tenant's
Portion of Common Area Expenses, Taxes and Insurance.
Notwithstanding anything set forth above in this
Article VI, if Landlord or Tenant has the right to terminate
the Lease pursuant to this Article VI due to damage or
destruction to one or the other of the Second Expansion Space
or the VAD Space, but not both Spaces, then Landlord or Tenant
shall not have the right to terminate the Lease under this
provision with respect to the non-damaged Space in Building B,
or with respect to the Expanded Leased Premises.
14. Condemnation. The last sentence of the second
paragraph of Article VII of the Lease shall only apply to the
Expanded Leased Premises, and shall not apply to the Second
Expansion Space and VAD Space. In addition, Article VII of the
Lease shall be amended by adding the underlined language to the
last paragraph thereof and adding a new paragraph at the end
thereof as follows:
Notwithstanding the preceding two (2) paragraphs of
this Article VII, if Landlord or Tenant has the right to
terminate the Lease pursuant to this Article VII due to taking
or condemnation of the Expanded Leased Premises only
(excluding the Second Expansion Space and VAD Space), then
Landlord or Tenant automatically shall have the right pursuant
to this Article VII to terminate the Lease with respect to the
Second Expansion Space and VAD Space, regardless of whether the
Second Expansion Space and/or the VAD Space has been condemned
in whole or in part. However, if Landlord or Tenant has any
right to terminate the Lease pursuant to this Article VII due
to condemnation or taking of the Second Expansion Space and/or
VAD Space only (excluding the Expanded Leased Premises),
Landlord or Tenant shall not have the right to terminate the
Lease with respect to the Expanded Leased Premises. If Landlord
or Tenant duly terminates the Lease under Article VII with
respect to the Second Expansion Space and/or VAD Space, the
Lease shall remain in full force and effect with respect to the
Expanded Leased Premises, and the Second Expansion Space and/or
VAD Space shall be stricken from the definition of "Leased
Premises" under the Lease. Upon such condemnation of the
Second Expansion Space and/or VAD Space, the parties agree to
enter into an amendment to the Lease setting forth the reduced
Leased Premises and other related changes to the Lease,
including, without limitation, a reduction of Basic Annual Rent
and Tenant's Portion of Common Area Expenses, Taxes and
Insurance.
Notwithstanding anything set forth above in this
Article VII, if Landlord or Tenant has the right to terminate
the Lease pursuant to this Article VII due to taking or
condemnation of one or the other of the Second Expansion Space
or the VAD Space, but not both Spaces, then Landlord or Tenant
shall not have the right to terminate the Lease under this
provision with respect to the non-condemned Space in Building
B, or with respect to the Expanded Leased Premises.
15. Parking. Paragraph X.O of the Lease shall be amended
by adding Tenant's right to the non-exclusive use of an
additional three (3) parking spaces per one thousand (1,000)
square feet of the VAD Space for a total of Thirty-Four (34)
parking spaces. Therefore, in addition to the 214 non-exclusive
and 15 exclusive parking spaces set forth in the Lease, Tenant
shall have the non-exclusive use of 34 additional parking
spaces in the front and rear of Building B. If Tenant's loading
requirements or other requirements in the rear of Building B
are such that there is room for additional parking, then Tenant
shall have the non-exclusive use of additional parking spaces
in the rear of Building B.
16. Rights of First Offer. The provisions of Paragraph 18
of the First Amendment shall be amended to the extent, and only
to the extent, set forth below:
a. (i) Tenant shall have the right of first offer
(the "Hitachi First Offer Right"), on the terms and conditions
hereinafter set forth, to lease that portion of Building B
contiguous to the VAD Space (the "Hitachi First Offer Space"),
as shown on Exhibit A, containing approximately Three Thousand
Three Hundred Seventy (3,370) rentable square feet, and as of
the date first set forth above, occupied by Nissei Sangyo
America, Ltd. ("Hitachi") under a lease between Landlord and
Hitachi (the "Hitachi Lease") at such time as such Space
becomes available after its initial leasing by Hitachi. Tenant
shall have the right to lease the Hitachi First Offer Space at
the then-current VAD Space Basic Annual Rent, with a tenant
improvement allowance of Seven Dollars and Fifty Cents ($7.50)
per square foot.
(ii) Tenant shall have the right of first offer
(the "Bodymasters First Offer Right"), on the terms and
conditions hereinafter set forth, to lease that portion of
Building B contiguous to the VAD Space (the "Bodymasters First
Offer Space"), as shown on Exhibit A, containing approximately
Ten Thousand Seventy-Three (10,073) rentable square feet, and
occupied as of the Effective Date by Healthco Fitness
("Bodymasters") under a lease between Landlord and Bodymasters
(the "Bodymasters Lease"). Tenant shall have the Bodymasters
First Offer Right at such time as the Bodymasters First Offer
Space becomes available, subject to any renewal options in the
Bodymasters Lease. Tenant shall have the right to lease the
Bodymasters First Offer Space at the then-current market rent
(as determined below), including, without limitation, then-
current market increases of basic annual rent for each lease
year of such lease. Market rent shall be determined based, in
part, upon a tenant improvement allowance for the Bodymasters
First Offer Space agreed upon by Landlord and Tenant.
Landlord and Tenant shall work together in good faith
to determine market rent for the Bodymasters First Offer Space,
based on the mutually-agreed tenant improvement allowance,
within ten (10) days after Landlord receives Tenant's First
Offer Notice (as defined below). However, if Landlord and
Tenant cannot agree on a market rent within such ten (10)-day
period, after diligent, good faith efforts, then market rent
for the Bodymasters First Offer Space, taking into
consideration the tenant improvement allowance established by
Landlord and Tenant, shall be determined by a three-broker
method conducted as follows:
(1) Within five (5) days after Landlord and
Tenant shall have failed to agree upon a market rent during the
ten (10)-day period set forth above, Landlord and Tenant shall
give written notice to the other that each, at its own expense,
has hired and appointed as a broker, a disinterested person of
recognized competence and professional experience as a broker
of comparable commercial and industrial real estate in the
Baltimore-Washington Metropolitan Area. The two (2) brokers
thus appointed shall diligently work together for fifteen (15)
days after their appointment to determine the market rent for
the Bodymasters First Offer Space. Landlord and Tenant shall
each be entitled to present evidence and argument to the two
(2) brokers. If the two brokers cannot agree on such a market
rent within such fifteen (15)-day period, they shall each
prepare a written report setting forth what each believes the
market rent to be and the supporting data therefor. They shall
then appoint a third broker who shall also be a disinterested
person of recognized competence and professional experience as
a broker of comparable commercial and industrial real estate in
the Baltimore-Washington Metropolitan Area (the "Broker"). In
the event that the two (2) brokers appointed as aforesaid shall
be unable to agree, within ten (10) days after their failure to
agree on a market rent, on the appointment of the Broker, they
shall give written notice of such failure to the parties
hereto, and the parties shall request that such appointment be
made by the then President of the Maryland/Washington, D.C.
Chapter of the Society of Industrial and Office Realtors (or
any organized successor thereto) within thirty (30) days after
such request. The Broker shall, as promptly as possible, but in
no event more than thirty (30) days after the date of his or
her selection, determine the market rent for the Bodymasters
First Offer Space, without having access to the reports of the
first two (2) brokers. Landlord and Tenant shall each be
entitled to present evidence and argument to the Broker. Once
the Broker has determined the market rent, the final market
rent shall be determined as follows: (a) if the Broker's
determination is higher than that of both of the first two
brokers, then the higher market rent as determined by the first
two brokers shall be conclusive and binding on Landlord and
Tenant; (b) if the Broker's determination is lower than that of
both of the first two brokers, then the lower market rent as
determined by the first two brokers shall be conclusive and
binding on Landlord and Tenant; and (c) if the Broker's
determination is between that of the first two brokers, then
the Broker's determination shall be conclusive and binding on
Landlord and Tenant.
(2) After the market rent has been
determined by the two (2) brokers, or determined by the method
involving the Broker, as applicable, written notice shall
immediately be given to Landlord and Tenant stating the
determination(s), and Landlord and Tenant shall be furnished a
copy of such determination(s) signed by the decision-maker(s).
If the Broker is utilized, Landlord and Tenant shall review all
three (3) determinations to arrive at the final market rent
pursuant to the method set forth above. Landlord and Tenant
shall each pay one-half (1/2) of the costs of the Broker, if
applicable.
(iii) Tenant shall exercise either of or both
its First Offer Rights only upon written notification to
Landlord of Tenant's exercise of any such First Offer Right
(the "First Offer Notice"). Such First Offer Notice must be
given to Landlord within five (5) business days after Tenant
receives Landlord's written notification to Tenant ("Landlord's
Offer") of the termination of the Hitachi and/or Bodymasters
Lease, as applicable.
(iv) Time is of the essence with respect to
Tenant's exercise of its rights under this Subparagraph, and
Tenant acknowledges that Landlord requires strict adherence to
the requirement that the applicable First Offer Notice be
timely made and in writing. Within ten (10) days after the
market rent for the Bodymasters First Offer Space has been
determined as provided above, Tenant shall have the right, by
written notice to Landlord, to rescind its exercise of its
Bodymasters First Officer Notice, as applicable.
(v) In the event Tenant fails to provide
Landlord with the applicable First Offer Notice within the five
(5) day period set forth in Subparagraph 16(a)(iii) above,
Landlord shall be free to offer said Hitachi or Bodymasters
First Offer Space to a third party on any terms whatsoever, and
the applicable First Offer Right shall be null and void and of
no further force and effect.
(vi) In the event that either one or both of
the First Offer Rights are exercised by Tenant, the rent
applicable to the applicable First Offer Space as set forth
above in this Paragraph 16, shall be payable in equal monthly
installments (and, where applicable, fractions thereof), at the
times and in the manner as provided with respect to, and in
addition to, the monthly installments of the Basic Annual Rent
as set forth in Article III.B. of the Lease.
b. Notwithstanding any other provision of this
Paragraph 16, the following provisions shall apply to the First
Offer Rights and to Tenant's lease, if any, of the applicable
First Offer Space.
(i) Tenant shall not be entitled to exercise
the rights accorded to Tenant in Subparagraph 16(a), unless on
the date Tenant gives Landlord notice of such exercise and on
the applicable First Offer Space Commencement Date, as
hereinafter defined, Tenant (for purposes of this subsection
only, the term "Tenant" shall be deemed to be MedImmune, Inc.
or an entity which succeeds to all or substantially all of the
assets of MedImmune, Inc.) is in possession of the Leased
Premises and Tenant is not in default of the Lease;
(ii) The lease by Tenant of the applicable
First Offer Space, if any, shall commence on the date set forth
in Landlord's Offer (the "Hitachi First Offer Space
Commencement Date" or the "Bodymasters First Offer Space
Commencement Date") and shall terminate on November 30, 2006,
under and subject to the terms of this Lease (except to the
extent modified by Landlord's Offer), with the same force and
effect as though this Lease had originally provided for the
rental of the Leased Premises and the applicable First Offer
Space, except that the Basic Annual Rent applicable to the
applicable First Offer Space shall be adjusted as set forth
above. Notwithstanding the immediately preceding sentence,
Tenant shall have the right to cancel the lease for the Hitachi
First Offer Space and/or the lease for the Bodymasters First
Offer Space on November 30, 2001 upon at least one hundred
eighty (180) days' prior written notice. Tenant shall owe a
penalty for canceling the leases for the Hitachi First Offer
Space and for the Bodymasters First Offer Space equal to, with
respect to each such lease, the unamortized portion of the
applicable tenant improvement costs and commissions, plus an
amount equal to three (3) months' basic annual rent then in
effect. The tenant improvement costs under the leases for both
the Hitachi and Bodymasters First Offer Spaces shall be
amortized at ten and one half percent (10.5%) per annum (pro-
rated on a monthly basis) over the term of each of the leases
for the Bodymasters and Hitachi First Offer Space, as
applicable. Landlord shall apply this formula to determine the
Bodymasters and Hitachi cancellation penalties hereunder upon
receipt of the applicable Tenant's First Offer Notice
hereunder, and shall notify Tenant in writing of the amount of
each such cancellation fee, and the calculations used to
determine it, within seven (7) days of receipt of the
applicable Tenant's First Offer Notice. If Tenant has any
questions or concerns about such calculations, Tenant shall
notify Landlord in writing within seven (7) days of receipt of
Landlord's calculations, and the parties shall use diligent,
good faith efforts to resolve all open issues promptly.
(iii) The applicable First Offer Space shall be
delivered to Tenant in "as is" condition, unless otherwise set
forth in Landlord's Offer.
(iv) From and after the applicable First Offer
Space Commencement Date, all references in the Lease to the
Leased Premises shall refer to both the area of the Leased
Premises and of the applicable First Offer Space. Tenant's
Portion shall be adjusted accordingly to reflect the leasing of
the applicable First Offer Space.
(v) Except as otherwise expressly provided in
this Paragraph 16, and after the applicable First Offer Space
Commencement Date, all of the covenants and agreements set
forth in the Lease, schedules and riders thereto shall apply to
the applicable First Offer Space.
17. Signage for the VAD Space. Paragraph 18 of the Second
Amendment shall be stricken in its entirety and replaced with
the following:
"As soon as reasonably possible after Landlord
and Tenant have approved of the location of Tenant's
signage, and as otherwise set forth below in this
Paragraph 17, Landlord shall construct, maintain,
repair and/or replace for Tenant exterior signage on
Building B displaying Tenant's name, logo, and/or any
other insignia generally used by Tenant. All costs
associated with maintenance, repair and replacement
of this exterior signage shall be treated as a Common
Area Expense. Tenant shall pay all costs associated
with the construction of such signage within thirty
(30) days of receipt of an invoice therefor from
Landlord. This signage shall be of identical size,
color and material as the size, color and material
used for similar signage on Building D, and this
signage on Building B shall be in such location as is
reasonably requested by Tenant and approved in
advance by Landlord, in Landlord's sole discretion."
18. Tenant Authorization. Tenant represents and
warrants to Landlord that this Fourth Amendment has been
validly authorized and is executed by an authorized officer of
Tenant and that its terms are binding upon and enforceable
against Tenant in accordance herewith.
19. Amendment. As of and after the date hereof, the Lease
shall be amended and in full force and effect in such respects
as are set forth in this Fourth Amendment, and all other
provisions, terms, conditions and riders of and to the Lease
shall in all respects remain in full force and effect as set
forth in the Lease.
20. Reaffirmation. Tenant hereby reaffirms and restates,
and agrees to be bound by, the covenants, promises,
representations and agreements set forth in the Lease (except
to the extent that they are expressly superseded by this Fourth
Amendment) as if made herein.
21. Authority. Tenant represents and warrants to Landlord
that the Lease and this Fourth Amendment were approved by all
necessary parties, were validly executed by all necessary
officers of Tenant, and are and remain binding upon and
enforceable against Tenant in accordance with their terms, and
that the name and address of Tenant's resident agent in the
State of Maryland are The Corporation Trust Incorporated, 32
South Street, Baltimore, Maryland 21202.
IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed this Fourth Amendment of Lease under seal as of the day
and year first above written, intending to be bound as of the
Effective Date.
WITNESS/ATTEST: CLOPPER ROAD ASSOCIATES
By: M.O.R.M. Associates Limited
Partnership
By: RA & FM, Inc.
By: Alton D. Fryer(SEAL)
Name: Alton D. Fryer
Title: Vice President
LANDLORD
WITNESS/ATTEST: MEDIMMUNE, INC.
David LeBuhn By: David M. Mott(SEAL)
Name: David M. Mott
Title: President
TENANT
STATE OF MARYLAND )
) TO WIT:
COUNTY OF FREDERICK )
I HEREBY CERTIFY that on this 4th day of October, 1996,
before me, the subscriber, a Notary Public of the State of
Maryland and County/City of Baltimore, personally appeared
before me Alton D. Fryer, Vice President, of RA & FM, Inc., a
general partner of M.O.R.M. Associates Limited Partnership, a
general partner of CLOPPER ROAD ASSOCIATES, Landlord, and s/he
acknowledged the foregoing Fourth Amendment of Lease to be the
act and deed of said joint venture.
WITNESS my hand and notarial seal.
Mary Gail Peters
Notary Public
My Commission Expires: April 1, 1998
[Notaries cont'd]
STATE OF MARYLAND )
) TO WIT:
COUNTY/CITY OF MONTGOMERY )
I HEREBY CERTIFY that on this 3rd day of October 1996,
before me, the subscriber, a Notary Public of the State of
Maryland and County/City of Montgomery, personally appeared
before me David M. Mott, who acknowledged her/himself to be the
President and Chief Operating Officer of MEDIMMUNE, INC.,
Tenant and she/he acknowledged the foregoing Fourth Amendment
of Lease to be the act and deed of said corporation.
WITNESS my hand and notarial seal.
Carol A. Iorio
Notary Public
My Commission Expires: July 11, 1998
EXHIBIT A
Description of VAD Space
EXHIBIT B
VAD Space Plans