Exhibit 10.34
ASSIGNMENT AND ASSUMPTION OF LEASES
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THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is entered
into as of the 12th day of November, 1996, by and between CEPHALON PROPERTY
MANAGEMENT, INC., a Delaware corporation ("Assignor") and NORTH AMERICAN
VACCINE, INC., a Canadian corporation ("Assignee"). For good valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties covenant and agree as follows:
1. ASSIGNMENT. Assignor hereby assigns, transfers and sets over
unto Assignee, and Assignee hereby accepts, all of Assignor's right, title and
interest in and to (i) that certain Lease dated December 28, 1990 and Addendum
thereto, (ii) that certain Lease dated November 12, 1991 and Addendum thereto
and (iii) that certain Lease dated March 20, 1992 and Addendum thereto, each as
amended by that certain Amendment to Leases dated November 12, 1992 and by that
certain letter dated December 29, 1992, copies of which are attached hereto as,
respectively, Exhibits "A"-"E" and made a part hereof (collectively as amended,
"Leases"), each between TR Muirkirk Corp., successor-in-interest to Muirkirk
Manor Associates Limited Partnership, as landlord, and Assignor, assignee of Bio
Science Contract Production Corp., as tenant, which Leases pertain to Suites
260, 270, 280 and 290, 9000 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Road, Park Place, Beltsville, Prince
George's County, Maryland ("Premises"). This Assignment includes an assignment
to Assignee of all rights in and to all security deposits paid by Assignor under
the Leases, all allowances and amounts available for lessee improvements to the
Premises, and all refunds of rent or additional rent paid by Assignor under the
Leases.
2. REPRESENTATIONS AND WARRANTIES. Assignor represents and warrants
to Assignee that: (a) Assignor is the tenant under the Leases and the sole
occupant of the Premises, (b) the Leases are the only leases or agreements
whereby any person has been granted the right to use or occupy the Premises or
any part thereof, (c) Assignor has not previously assigned the Leases or sublet
the Premises and has received no notice of a prior assignment, hypothecation or
pledge of the Leases or the rent payable thereunder, (d) there exists no default
by Assignor or to Assignor's knowledge, the landlord, under the Leases, and, to
the best of Assignor's knowledge, no event, fact or circumstance which, with the
giving of notice or the passage of time, or both, would constitute a default
thereunder, (e) the security deposits due under the Leases have been paid in
full, the amount of the security deposits has not been reduced to Assignor's
knowledge, and Assignor's interest in the security deposits has not been
previously pledged, assigned or otherwise transferred, (f) the copies of the
Leases which are attached hereto are true, correct and complete and constitute
the entire agreement between Assignor and the landlord under the Leases, (g)
there are no actions or proceedings, whether voluntary or involuntary, pending
with respect to Assignor under any bankruptcy, insolvency, debt adjustment or
similar law of the United States or any state thereof, (h) to Assignor's
knowledge, the landlord under the Leases has fulfilled all of its
representations, warranties and agreements under the Leases, and (i) the
construction and installation of all "lessee improvements" to the Premises have
been completed in all respects in accordance with the Leases, there are no
payments due the landlord under the Leases or any other party from Assignor or
due Assignor from the landlord under the Leases in connection with any such
work, and the amount of $0.00 remains available for use in completing such work.
3. PERFORMANCE. Assignor shall be responsible for the observance
and performance of all agreements and obligations of the "Lessee" under the
Leases arising prior to the Effective Date (defined below). Assignee, and not
Assignor, shall be responsible for the observance and performance of all
agreements and obligations of the "Lessee" under the Leases arising on or after
the Effective Date.
4. EFFECTIVE DATE. Notwithstanding anything to the contrary
contained herein, this Assignment shall not become effective until such date
("Effective Date"), if ever, that Assignor and Assignee (i) enter into an Assets
Purchase Agreement providing for Assignee's acquisition of certain assets of
Assignor located on the Premises and (ii) consummate the transactions
contemplated thereunder.
5. INDEMNITIES. Assignor shall defend, protect, indemnify and save
harmless Assignee from and against any and all liabilities, suits, actions,
losses, damages, costs and expenses, including, without limitation, counsel fees
and court costs, suffered or incurred by Assignee resulting from or relating to
any failure by Assignor to observe or perform any of its agreements or
obligations under the Leases prior to the Effective Date. Assignee shall defend,
protect, indemnify and save harmless Assignor and Cephalon, Inc. from and
against any and all liabilities, suits, actions, losses, damages, costs and
expenses, including, without limitation, counsel fees and court costs, suffered
or incurred by Assignor or Cephalon, Inc. resulting from or relating to any
failure by Assignee to observe or perform any of its agreements or obligations
under the Leases accruing at or after the Effective Date.
6. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Assignment shall be
binding upon and inure to the benefit of Assignor and Assignee and their
respective successors and assigns.
7. FURTHER ASSURANCES. At Assignee's request, Assignor will execute
and deliver such documents and instruments and take such other actions as may be
requested reasonably from time to time by Assignee as necessary, appropriate or
desirable to carry out, evidence and confirm the intended purposes of this
Assignment.
8. GOVERNING LAW. This Assignment shall be governed by and
interpreted and enforced in accordance with the laws of the State of Maryland,
without giving effect to conflicts or laws principles.
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IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the date first above written.
ATTEST: CEPHALON PROPERTY MANAGEMENT, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By:/s/ J. ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: J. ▇▇▇▇▇ ▇▇▇▇▇
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Title: Assistant Secretary Title: Vice President
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(Corporate Seal)
ATTEST: NORTH AMERICAN VACCINE, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇-Nabi
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇-Nabi
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Title: Assistant Secretary Title: Senior Vice President
------------------- - Legal Affairs
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(Corporate Seal)
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EXHIBIT "A"
FIRST LEASE
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LEASE
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(PARK PLACE)
THIS LEASE, made as of this 28th day of December, 1990, by and between
MUIRKIRK MANOR ASSOCIATES LIMITED PARTNERSHIP, a Maryland Limited partnership
("Lessor"), and BIO SCIENCE CONTRACT PRODUCTION CORP., a Maryland corporation,
("Lessee").
W I T N E S S E T H:
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That in consideration of the rent and mutual covenants and agreements
contained herein, and intending to be legally bound hereby, Lessor and Lessee
agree as follows:
1. DEMISED PREMISES
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The Lessor leases to the Lessee all of that certain space
described as Suite ▇▇. ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, containing approximately
14,200 square feet of gross leasable area, as is outlined in red on the plat
attached to and made a part of this Lease as Exhibit "A" (the "Leased
Premises"), and located in Park Place, Prince George's County, Maryland. Lessor
shall construct and complete the Leased Premises in compliance with the plans
and specifications set forth in Exhibit "B" attached hereto and made part
hereof. "Delivery of Possession" of the Leased Premises by Lessor to Lessee
shall be deemed to have been made when Lessor's architect certifies in writing
that construction of the Leased Premises shall have been completed.
2. TERM
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The term (the "Term") of this Lease shall be for a term of Ten
(10) years, commencing on the 1st day of March, 1991, (the "Commencement Date")
and shall expire on the last day of February, 2001. If the Term of the Lease
does not begin on the date specified herein for reasons other than the fault of
Lessee, then the expiration date shall be moved for the commensurate amount of
the delay and the rent shall be prorated accordingly. If the term commences or
ends in mid-month, the rent payable for that month (including, without
limitation, Additional Rent) shall be prorated and paid on the date of
commencement or termination.
3. RENT
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(a) The rent (the "Base Rent") shall be:
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Year Square Foot Rate
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1 $ 6.75
2 $ 7.75
3 $ 8.75
4 $ 9.50
5 $ 10.00
6 $ 10.30
7 $ 10.61
8 $ 10.93
9 $ 11.26
10 $ 11.59
The term "Lease Year" shall mean each twelve (12) month period during the term
of this Lease commencing on the Commencement Date. The Base Rent shall be
payable, in advance, in equal monthly installments, the first monthly
installment to be due and payable on the Commencement Date and each subsequent
monthly installment to be due and payable on the first day of each and every
month thereafter during the term of this Lease.
(b) All moneys payable by Lessee under the terms of this Lease,
other than Base Rent, as adjusted from time to time, shall be deemed "Additional
Rent."
(c) Lessee shall make all payments of Base Rent and Additional
Rent on a timely basis, without demand and without deduction, setoff or
counterclaim, except as expressly permitted in Paragraph 29(b) hereof. All
payments of Rent and Additional Rent shall be made by good and valid check,
payable to The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Group, Inc., agent, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other party or to such other address as
Lessor may designate from time to time by written notice to Lessee. If Lessor
shall at any time or times accept Base Rent or Additional Rent after it shall
become due and payable, such acceptance shall not excuse delay upon subsequent
occasions, or constitute, or be construed as, a waive of any or all of Lessor's
rights hereunder. If any payment of Base Rent or Additional Rent is not made
within ten (10) days of when due, a late charge of five percent (5%) of the
amount of such payment shall be imposed, Lessor shall be entitled to require the
payment of Base Rent and Additional Rent by certified check if the check for any
payment by Lessee shall be dishonored by its Bank.
(d) Except for the obligations of Lessor expressly set forth
herein, this Lease is a "net lease" and Lessor shall receive the Base Rent
hereinabove provided as net income from the Leased Premises, not diminished by
any imposition of any expenses or charges required to be paid to maintain and
carry the Leased Premises or to continue the ownership of Lessor, other than
payments under any mortgages now existing or hereafter created by Lessor, and
Lessor is not and shall not be required to render any services of any kind to
Lessee.
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4. SECURITY DEPOSIT
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(a) Lessee has, simultaneously with the execution of this Lease,
deposited with Lessor, in cash or by check subject to collection, the sum of Ten
Thousand and No/100 Dollars ($10,000.00). Said deposit shall be held as security
for the faithful performance by Lessee of the terms, covenants, provisions and
conditions of this Lease. It is agreed that in the event Lessee defaults in
respect to any of the terms, covenants, provisions and conditions of this Lease,
including (but not limited to) the payment of Base Rent or Additional Rent, and
fails to cure any such defaults within applicable grace periods, Lessor may use,
apply or appropriate the whole or any part of the security so deposited to the
extent required for the payment of any Base Rent or Additional Rent or for the
curing of any defaults by Lessee hereunder pursuant to Paragraph 29 hereof;
provided, however, that no such use, application, or appropriation of the
deposit shall be deemed to relieve Lessee of any breach of this Lease and shall
be in addition to other remedies under this Lease.
(b) Should the entire deposit or any portion thereof be
appropriated and applied by Lessor under the foregoing provisions, then Lessee
shall (upon the written demand of Lessor) forthwith remit to Lessor a sufficient
amount in cash to restore said security to the original sum deposited, and
Lessee's failure to do so within ten (10) days after receipt of such demand
shall itself constitute an event of default under this Lease.
(c) The security deposit (less any amounts applied as provided in
subsection (a) above) shall be returned to Lessee within thirty (30) days after
the date fixed as the end of the Term of this Lease and delivery of entire
possession of the Leased Premises to Lessor.
(d) In the event of a sale, leasing or other transfer of the land
and building of which the Leased Premises forms a part, Lessor shall have the
right to transfer the security and be released by Lessee from all liability for
the return of such security deposit. Lessee shall look to the new Lessor solely
for the return of said deposit. The provisions of this Paragraph 4(d) shall
apply to every transfer or assignment made of the security deposit to a new
Lessor.
(e) Lessee covenants that it will not assign or encumber or
attempt to assign to encumber the security deposited herein and that neither
Lessor nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
(f) Lessee shall not be entitled to any interest on the security
deposit, and such funds need not be segregated or held as escrow by Lessor.
(g) It is expressly understood and agreed that, in the event of
any termination of this Lease or re-entry upon or reletting of the Leased
Premises on account of any default on the part of Lessee under this Lease, then,
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and in such event, the deposit shall be retained and be subject to appropriation
by Lessor until this Lease would, by its terms, have expired absent such
default.
5. USE
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Lessee will use and occupy the Leased Premises solely for the
purpose of Offices and operation of a vaccine research and production facility.
The Leased Premises may not be used for any other purpose without the prior
written consent of Lessor, which consent shall not be unreasonably withheld. The
Leased Premises shall not be used for the storage, distribution or sale of any
pornographic or "adult rated" materials. Lessee shall not use the Leased
Premises for any purpose or activity which is noxious or unreasonably offensive
because of the emission of noise, smoke, dust, vibration or odors. Tenant shall
not use the plumbing facilities for any purpose injurious to same or dispose of
any garbage or any other foreign substance therein, nor place a load on any
floor in the Leased Premises exceeding the floor load of 250 per square foot
which such floor was designed to carry, nor install, operate and/or maintain in
the Leased Premises and heavy equipment which could cause injury to the Lease
Premises, nor install, operate and/or maintain in the Leased Premises any
electrical equipment which will overload the electrical system therein, or any
part hereof, beyond its capacity for proper and safe operation as determined by
the Lessor or which does not bear underwriter's approval. Lessee shall not use
the Leased Premises in any manner or for any purpose which violates any rule,
regulation, law, ordinance, or requirements of any governmental agency.
6. TAXES
(a) As additional rent hereunder, at least thirty (30) days
before any fine, penalty or interest or cost may be added thereto for the
non-payment thereof (or sooner if elsewhere herein required), Lessee shall pay
throughout the term of this Lease all levies, taxes, assessments, water and
sewer rents and charges, liens, charges for public utilities and all other
charges, imposts or burdens of whatsoever kind and nature which at any time
during the term of this Lease may be assessed or imposed by any federal, state
or municipal government or public authority, or under any law, ordinance
regulation thereof or pursuant to any recorded covenants or agreements (all of
which are hereinafter referred to as "Impositions"), upon or with respect to the
Leased Premises, any improvements made thereto, or this Lease. Additionally,
Lessee shall pay a proportionate share of any imposition which is not imposed
upon the Leased Premises as a separate entity but which is imposed upon the land
or the building or upon the appurtenances, leases, rents, transactions or
documents relating to the lot or the building. Provided, however, that any
imposition shall be apportioned for the first and last fiscal tax years covered
by the term hereof. "Impositions" shall include, but not be limited to, any and
all governmental or quasi-governmental levies, fees, assessments, taxes and
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever, with respect to such land and
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building (excluding taxes paid on Lessor's income but including sales tax or
excise tax imposed by any governmental authority upon the Base Rent payable by
Lessee hereunder).
(b) Notwithstanding the foregoing provisions of this Article 6,
Lessor shall have the right, at its option, to require Lessee to pay to Lessor
or to any mortgagee, at the time when the monthly installment of Base Rent is
payable, an amount equal to one-twelfth (1/12) of the annual Impositions as
estimated by Lessor. If Lessor elects to have Lessee make such payments, Lessee
also shall pay to Lessor or to such mortgagee, as the case may be, at least
thirty (30) days before any fine, penalty, interest or cost may be added thereto
for the non-payment thereof, the amount by which the Impositions becoming due
exceed the monthly installment payments on account thereof previously made by
Lessee. Should Lessee's monthly installment payments on account of Lessee's
share of Impositions for any tax year exceed the actual amount of Lessee's share
of such Impositions, the excess amount shall be credited against Lessee's
installments for Impositions thereafter becoming due. The amounts paid by Lessee
pursuant to this paragraph (b) shall be used to pay the Impositions, but such
amounts shall not be deemed to be trust funds and no interest shall be payable
thereon.
(c) During any part of the Term of this Lease which shall be less
than a full tax fiscal year, any Taxes shall be pro rated on a daily basis
between the parties, to the end that Lessee only shall pay its share of Taxes
attributable to the portion of the tax fiscal years occurring within the term of
this Lease.
(d) Lessee shall pay promptly, and when due, all taxes, fees,
licenses, assessments and other charges levied or imposed upon the business of
the Tenant or upon any fixtures, furnishings or equipment in the Leased
Premises.
(e) If due to a future change in the method of taxation or in the
taxing authority, a franchise, gross receipts, transit, rent or other tax or
other governmental imposition, however designated, shall be levied against
Lessor in substitution (in whole or in part) for, or in addition to, said
"Impositions" as currently defined), then such franchise, gross receipts,
transit, rent or other tax or governmental Impositions shall be deemed to be
included within the definition of "Impositions" for the purposes of this Lease.
The term "Impositions" also includes all costs reasonably incurred in any
proceeding brought by Lessor to reduce said Taxes.
(f) Lessor may institute any proceedings with respect to the
assessed valuation of Park Place or any part thereof, and Lessee shall cooperate
with, and participate in, any and all such proceedings. If, after Lessee shall
have made the required payment of Taxes hereunder, Lessor shall receive a refund
of any portion thereof, then, within thirty (30) days after Lessor's receipt of
such refund, Lessor shall pay to Lessee Lessee's pro rata share of the amount of
the refund, less all costs and expenses (including, but not limited to,
attorneys' and appraiser' fees) expended for incurred in obtaining such refund.
Lessee may not institute any proceedings with respect to the assessed valuation
of Park Place or any part thereof.
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7. UTILITIES
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Starting with the Commencement Date and continuing throughout the Term
of this Lease, Lessee shall be solely responsible for and shall pay, as and when
the same become due and payable and as hereinafter provided, all rents, rates,
costs and charges for water services, sewer service, electricity, gas, heat,
steam, power, telephone (and other communication services), and any other
utilities or services rendered or supplied to, upon or in connection with, or
used or consumed within or in servicing, the Leased Premises, and all other
utility costs and expenses involved in the use of the Leased Premises throughout
the term of this Lease, and Lessee shall indemnify Lessor and save Lessor
harmless against any costs liability or damages on such account. Unless
otherwise agreed in writing by Lessor or Lessee, Lessee shall, promptly upon
Delivery of Possession of the Leased Premises and at Lessee's own expense, pay
for the installation of separate meters for all utilities servicing the Leased
Premises and place said meters and related utility accounts in Lessee's own
name. Lessee shall pay all separately metered charges to the respective public
utility companies. With respect to each utility which is not separately metered
for the Leased Premises, Lessee shall pay Lessor, as Additional Rent, Lessee's
proportionate share of the total cost and fees therefore attributable to those
areas of the warehouse/office buildings which are not separately metered.
8. COMMON AREA MAINTENANCE
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(a) Subject to the provisions of this Lease, Lessor grants to
Lessee, its employees, agents, customers and invitees during the Term hereof the
non-exclusive use, in common with Lessor and other tenants and occupants of Park
Place and their respective employees, agents, customers and invitees and in
common with such others as Lessor may designate from time to time, of all
non-allocated parking areas within Park Place for pedestrian and vehicular
ingress and egress and the accommodation and parking areas within Park Place for
pedestrian and vehicular ingress and egress and the accommodation and parking
automobiles as required by the Lessee in conducting normal business activities
of Lessee within the Leased Premises. Lessor reserves the right, however, to
designate certain portions of the parking areas within Park Place for parking of
trucks, vans, and other vehicles, and to designate for the specific account of
Lessee, or other tenants in Park Place, specific parking areas or spaces
constructed within Park Place. Notwithstanding anything contained in this Lease
to the contrary, Lessor shall have the right, at any time and from time to time,
to change the size, location and nature of the parking areas (so long as the
number of parking spaces is not reduced) and/or other common areas within Park
Place. All parking areas and related facilities which may be furnished by Lessor
in or near the Leased Premises, including employee parking areas, truck way or
ways, loading docks, pedestrian sidewalks and ramps, landscaped areas, and other
areas and improvements which may be provided by Lessor for the general use, in
common with Lessor and other tenants, and their respective employees, agents,
customers and invitees, shall at all time be subject to the exclusive control
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and management of Lessor, and Lessor shall have the right, from time to time, to
establish, modify and enforce reasonable rules and regulations with respect to
all parking areas and other facilities and areas mentioned in this paragraph.
Lessee agrees to abide by and conform with all such rules and regulations upon
notice thereof and to cause its employees, agents, customers and invitees to do
the same. Lessor shall have no liability to Lessee for use of the parking areas
by Lessor or other tenants and occupants of Park Place and their respective
employees, agents, customers, or other third parties. No provision of this Lease
shall be construed as a demise to Lessee of the parking or any other common
area) within Park Place. If any repairs (excluding repairs caused by Lessee's
normal use) to the parking or other common areas within Park Place are
necessitated by reason of any act or omission by Lessee or its employees,
agents, customers or invitees, then, if Lessor chooses to do so, Lessor may make
such repairs and Lessee shall promptly upon demand reimburse Lessor for the full
costs to the extent same are not covered by Lessor's insurance, or at Lessor's
option, Lessor may notify Lessee of the necessity for such repairs, and Lessee,
at its cost and expense, shall, with due diligence, commence and complete to
Lessor's satisfaction the repairs within ten (10) days of Lessee's receipt of
such notice.
(b) "Common Area Charges" means all of the costs and expenses
which are incurred by Lessor with respect to operation, management, maintenance
and security of the building including the parking and other designated common
areas in Park Place and the exterior walls of the buildings in Park Place, and
those areas of Park Place which house mechanical, electrical or other equipment
or are otherwise determined from time to time by Lessor to be used in operating
or maintaining Park Place. "Common Area Charges" include, but are not limited
to, the cost of maintaining, repairing, and replacing and repaving (when
necessary) the parking and other designated common areas; supplies, tools and
materials purchased and/or used in connection with repairs, maintenance and/or
replacements; wages, salaries, and fringe benefits of all employees of the
Lessor for the portion of time they are directly engaged in the operation,
maintenance and security of Park Place, including license and fees (but
excluding wages, salaries and benefits of executive employees); removing snow,
ice, and debris from the roadways and parking areas for Lessee's use during
normal business hours; removal of customary and normal trash; maintaining and
repairing or repainting (when necessary) directional signs, pavement markings,
and parking lot striping; repairing and replacing (when necessary) outdoor
lighting facilities; maintaining the grass and otherwise caring for the
replanting (when necessary) all shrubbery and landscape areas; providing such
security as Lessor, in its sole discretion, deems advisable; accounting and
legal fees for common areas at Park Place; utilities, heating, ventilation and
air-conditioning charges allocable to designated common areas and other building
service areas.
(c) Starting with the Commencement Date and continuing throughout
the Terms of this Lease, Lessee shall pay Lessor in advance as hereinafter
described and as Additional Rent, Lessee's Pro-Rata Share of all Common Area
Charges for said period. "Lessee's Pro-Rata Share" shall be a fraction, the
numerator of which shall be the floor area within the Leased Premises and the
denominator of which shall be the total floor area within all buildings in Park
Place. The Initial Lessee's Pro-Rata Share shall be 8%.
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(d) On or before the Commencement Date, on or before the end of
each and every Lease year, and at such other time(s) as is deemed desirable by
lessor in its sole discretion, Lessor shall forward to Lessee a "Common Area
Charges Statement", which shall contain Lessor's latest estimate of the Common
Area Charges for the then current or the then upcoming (as the case may be)
Lease Year, and a statement of Lessee's Pro-Rata Share thereof. Landlord's
failure to forward, or to timely forward, any Common Area Charges Statement
shall not excuse Lessee from its liability for Lessee's Pro-Rata Share of Common
Area Charges.
(e) Each month during the Term of this Lease, along with each
monthly installment of Base Rent, beginning with the Commencement Date, Lessee
shall pay to Lessor, in advance, an amount equal to one-twelfth (1/12th) of
Lessee's Pro-Rata Share of the Common Area Charges as set forth in the then
latest Statement. If the Commencement Date is a day other than the first day of
a calendar month, then the amount of Common Area Charges due for the first month
and the last month of the Term shall be pro rated on the basis of a thirty (30)
day month. As soon as practicable near the end of each and every Lease Year, but
no later than 90 days after the end of the Lease year, Lessor shall submit to
Lessee an "Actual Common Area Charges Statement" prepared by Lessor showing what
the Common Area Charges for the then preceding Lease Year actually were. With
the next monthly installment of Base Rent due after Lessee's receipt of such
Statement, Lessee shall pay Lessor or Lessor shall credit Lessee, as the case
may be the difference between Lessee's Pro-Rata Share of the actual Common Area
Charges for said Lease Year as shown on said Statement and the total of all
Common Area Charges paid by Lessee to Lessor for said Lease Year.
9. NON-LIABILITY OF LESSOR
-----------------------
(a) Except as otherwise expressly provided in this Lease or
unless caused by the negligence or intentional misconduct of Lessor or Lessor's
employees, agents and contractors while acting within the scope of their
employment, Lessor shall not be responsible or liable to Lessee for any loss or
damage to persons or property, or any interference or interruption of Lessee's
use of the Leased Premises, that may be occasioned by (i) water, gas, steam,
wind or the bursting, stoppage or leaking of any pipes, sewer or water lines, or
other conduits, fixtures or equipment; (ii) the interruption of any utility
services to the Leased Premises caused by the utility company; (iii) any
repairs, alterations, maintenance or additions to the Leased Premises or land
and building of which they are a part; (iv) any casualty; (v) theft or other
criminal conduct; or (vi) the acts or omissions of persons occupying any space
adjacent to the Leased Premises.
(b) No provisions of this lease shall be deemed to confer any
rights upon any persons or entities other than the parties to this Lease,
permitted successors and assigns and mortgages.
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(c) Notwithstanding anything to the contrary provided in this
Lease, it is specifically understood and agreed that there shall be absolutely
no personal liability on the part of Lessor, including partners in Lessor and
their respective successors and assigns, with respect to its performance or
observance of any of the terms, covenants and conditions of this Lease, and that
Lessee shall look solely to the equity of the Lessor in the land and building of
which the Leased Premises form a part for the satisfaction of each and every
remedy of Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed or observed by Lessor,
such exculpation of personal liability to be absolute and without any exception
whatsoever.
(d) If Lessor shall fail to comply fully with any of its
obligations under this Lease, Lessee may seek and enforce specific performance
of the Lease against Lessor and pursue such other equitable remedies as may be
available to Lessee. Notwithstanding the foregoing, the result of such action
shall be subject to the provisions of Paragraph 9(c) hereof.
10. INDEMNITY
---------
Lessee agrees to indemnify and save Lessor harmless from and
against any and all claims, demands, costs and expenses (including, but not
limited to, reasonable attorneys' fees and litigation costs) for, or in
connection with, any accident, injury or damage whatsoever to any person or
property (i) arising directly or indirectly out of Lessee's use or occupation of
the Leased Premises, (ii) occurring in, on or about the Leased Premises or on
the sidewalks adjoining the same, or (iii) arising directly or indirectly from
any act or omission of Lessee or any of Lessee's licenses, servants, agents,
employees or contractors. The foregoing indemnity shall not apply to any such
claim or demand proximately caused by the negligence or misconduct of Lessor, or
its employees, agents and contractors while acting within the scope of their
employment.
11. LIABILITY INSURANCE
-------------------
(a) Lessee, at Lessee's sole expense, shall obtain and maintain
in effect at all times starting with the Commencement Date and continuing
throughout the term of this Lease, a policy or policies of comprehensive general
public liability insurance, insuring Lessor, Lessor's mortgagee(s) and Lessee
against any liability for injury, death or property damage occurring upon, in or
about any part of the Leased Premises or any appurtenances thereto, affording
protection to the limits of not less than One Million Dollars ($1,000,000.00)
with respect to bodily injury or death of any one person, and not less than
Three Million Dollars ($3,000,000.00) with respect to any one incident, and not
less than Five Hundred Thousand Dollars ($500,000.00) with respect to property
damage. The foregoing minimum limits may, at Lessor's option and upon thirty
(30) days' notice to Lessee, be increased from time to time to reflect inflation
or changed conditions.
(b) The insurance policy(ies) required to be procured by Lessee
under this Lease:
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(i) Shall be issued by a reputable insurance company licensed to
do business in the State of Maryland and shall have such form and content as
shall be approved by Lessor.
(ii) Shall be written as primary policy coverage and not
contributing with, or in excess of, any coverage which Lessor may carry.
(iii) Shall have an endorsement thereto to the effect that no act
or omission by Lessee shall affect the obligation of the insurer to pay Lessor
the full amount of any loss sustained by Lessor and shall contain an express
waiver of any right of subrogation by the insurance company against Lessor, its
agents and employees.
(iv) Shall name Lessor as an additional named insured.
(c) On or before the Commencement Date, and at least fifteen (15)
days before the expiration date of the policy, Lessee shall deliver to Lessor a
certificate of insurance evidencing the existence and good standing of the
liability policy referred to in Paragraph 11(a), together with evidence of
payment of all premiums. The insurance required to be carried under this Lease
may be carried under a blanket policy covering the Leased Premises and other
locations of Lessee. The insurance policy required to be carried by Lessee shall
provide that such insurance policy shall not be canceled unless Lessor and
Lessor's mortgagee(s) shall have received thirty (30) days' prior written notice
of cancellation. In the event that Lessee shall, prior to the thirtieth (30th)
day before any insurance policy will lapse or terminate, fail to furnish
evidence of the coverage and pay the premium therefor for a period not exceeding
one year, and the premiums so paid by Lessor shall be payable by Lessee, on
demand, as Additional Rent.
12. HAZARD INSURANCE
----------------
(a) Starting with the Commencement Date and continuing throughout
the Term of this Lease, Lessee shall pay to Lessor, or such other party as
Lessor shall designate by written notice to Lessee, as Additional Rent, Lessee's
Pro-Rata Share, as defined in Paragraph 12(e) hereof, of the premiums and other
charges (the "Premiums") that may be incurred or contracted for or by Lessor for
fire and casualty insurance coverage for the land and buildings of which the
Leased Premises form a part, including protection from such perils as may be
insured against under a broad form extended coverage endorsement or on all risk
of physical loss policy, and further including loss of rental coverage in an
amount equal to the Rent for one (1) Lease Year. The premiums for all insurance
to be obtained by Lessor under this Paragraph 12(a) shall be reasonably
competitive with the premiums charged for similar insurance protection by
reputable insurers for comparable properties. Lessee agrees that it will not
store gasoline or other explosive, flammable or toxic material in the Leased
Premises or do anything which may cause Lessor's insurance company to void the
policy covering the Leased Premises or to increase the premium thereon, and that
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Lessee will immediately conform to all rules and regulations from time to time
made or established by Lessor's insurance company or insurance rating bureau.
Lessor will do everything reasonably possible and consistent with the conduct of
Lessee's business to obtain the lowest possible rates for insurance on the
Leased Premises. If, however, the cost to Lessor of obtaining insurance on the
Leased Premises (or the building which the Leased Premises are located) is
increased due to the Lessee's occupancy thereof, and the Lessor's insurer
provides evidence that said increase is the direct cause of Lessee's occupancy,
Lessee agrees to pay, promptly upon demand, as additional rental, any such
increase.
(b) On or before the Commencement Date and before the due date of
each and every ▇▇▇▇ for the Premiums, Lessor shall forward to Lessee an
"Insurance Statement" which shall contain an estimated statement of the amount
due from Lessee from time to time as Lessee's Pro-Rata Share of the Premiums.
Lessor's failure to forward, or to timely forward, any Insurance Statement shall
not excuse Lessee from its liability for Lessee's Pro-Rata Share of the
Premiums.
(c) Each and every month during the Term of this Lease, along
with its monthly installment of Fixed Rent, beginning on the Commencement Date,
Lessee shall pay Lessor an amount equal to one-twelfth (1/12) of Lessee's
Pro-Rata Share of the Premiums as set forth in the then latest Insurance
Statement, which shall be credited toward Lessee's Pro-Rata Share of the
Premiums when the same are due and payable. Should Lessee's monthly installment
payments on account of Lessee's Pro-Rata Share of the Premiums for the period to
which the Premiums relate exceed the actual amount of Lessee's Pro Rata Share of
such Premiums, the excess amount shall be credited against Lessee's installments
for Premiums thereafter becoming due. If the Commencement Date is other than the
first day of a period to which the Premiums relate, then the installments of the
Premiums due from the Lessee shall be pro rated on the basis of a thirty (30)
day month.
(d) Notwithstanding the provisions of Paragraph 12(c) above,
Lessor may, upon ten (10) days' written notice to Lessee, require Lessee to pay
Lessee's Pro- Rata Share of the necessary increased Premiums due to Lessee's
occupancy at such times as the Premiums are due and payable to the respective
insurance company or companies or in such manner as is required of Lessor under
any mortgage, whether such payments be in lump sum or other installments.
(e) Lessee's Pro-Rata of the Premiums shall be of all the
Premiums due for the land and building of which the Leased Premises form a part.
As used in this Paragraph 12, "Lessee's Pro Rata Share" shall be a fraction, the
numerator of which shall be the floor area within the Leased Premises and the
denominator of which shall be the total floor area within the building of which
the Leased Premises form a part.
(f) Lessor hereby releases Lessee from any liability and
responsibility to Lessor to anyone claiming through or under Lessor by way of
subrogation or otherwise, for any and all loss or damage to the Leased Premises
-14-
caused by fire or any casualty covered by insurance to the extent insurance
proceeds are received therefor, even if such fire or other casualty shall have
been caused by the fault or negligence of Lessee, or anyone for whom Lessee may
have been responsible. Lessor's insurance policies shall include appropriate
clauses (i) waiving all rights of subrogation against Lessee with respect to
losses payable under such policies, and (ii) agreeing that such policies shall
not be invalidated should the insured waive in writing prior to a loss any and
all rights of recovery against the other party hereto for losses covered by such
policies.
13. DAMAGE TO THE DEMISED PREMISES
------------------------------
(a) In the event of partial or total damage or destruction of the
Leased Premises by fire, other casualty, or any cause whatsoever (except
condemnation), Lessee shall give immediate notice to Lessor. If the damage or
destruction is insured against by Lessor, this Lease shall continue in full
force and effect, and, to the extent that insurance proceeds respecting such
damage or destruction are subject to being utilized and, in fact, may be
utilized by Lessor for repair, Lessor shall cause such damage or destruction to
be repaired with reasonable speed at the expense of Lessor, except as otherwise
hereinafter provided in this Paragraph 13. If in the reasonable opinion of
Lessor the damage or destruction is such that repair thereof cannot reasonably
be completed within ninety (90) days of the date the damage or destruction
occurs, Lessor shall have the right to terminate this Lease by the giving of
written notice to such effect to Lessee within thirty (30) days of the date of
Lessor's receipt of Lessee's notice of damage or destruction. In no event shall
Lessor be required to restore or repair Lessee's personal property or other
contents within the Leased Premises. Due allowance shall be made for reasonable
delay which may arise by reason of Lessor's adjustment of loss under insurance
policies and on account of labor troubles or any other cause beyond Lessor's
control. To the extent that the Leased Premises are rendered untenantable, the
Rent and Additional Rent shall proportionately ▇▇▇▇▇. If the damage or
destruction is not covered by insurance maintained by Lessor or if insurance
proceeds respecting the damage or destruction are not subject to being utilized
for repair and, in fact, may be not so utilized, Lessor shall not be required to
repair the damage or destruction. In the event the damage or destruction is so
extensive to the building of which the Leased Premises are a part as to render
it uneconomical, in Lessor's opinion, to restore the Leased Premises, the Lease,
at the option of Lessor, shall be terminated upon written notice to Lessee and
Lessee shall immediately thereafter vacate the Leased Premises and surrender the
same to Lessor. No such termination shall release Lessee from any liability to
Lessor from any of the obligations or duties imposed on Lessee under this Lease
prior to the damage. Upon any termination of this Lease pursuant to his
Paragraph 13(a), Rent and Additional Rent shall be prorated and adjusted to the
date of such termination.
(b) Lessee hereby waives any and all right of recovery which it
might otherwise have against Lessor, its agents and employees, for loss or
damage to Lessee's contents, furniture, furnishings, fixtures and other property
removable by Lessee under the provisions of this Lease to the extent that the
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same is to be covered by Lessee's insurance thereunder, except where such loss
or damage may result from the negligence of fault of Lessor, its agents,
employees or contractors.
14. EMINENT DOMAIN
--------------
(a) If during the term of this Lease, the Leased Premises, or such
a substantial portion of the Leased Premises as shall prevent Lessee from
conducting its normal business, shall be taken by proper authority for public or
quasi-public use, then Lessee may terminate this Lease by giving Lessor written
notice of termination within thirty (30) days after receipt of notice of the
taking, and Lessee's obligation to pay rent, taxes, and other charges shall
terminate as of the date of the termination notice. If only a part of the Leased
Premises is taken and the part not taken shall be reasonably sufficient for the
purpose of conducting Lessee's normal business, this Lease shall remain in full
force and effect, except that the Rent and Additional Rent shall be
proportionately reduced.
(b) All compensation awarded for any taking shall belong to and be
the property of Lessor. Nothing contained herein, however, shall be construed to
preclude Lessee from prosecuting any claim directly against the condemning
authority for loss of business or depreciation, damage or cost of removal of
personal property belonging to Lessee so long as the claim does not diminish or
otherwise adversely affect Lessor's award or the award otherwise payable to
Lessor's mortgagee.
15. CONDITION OF LEASED PREMISES; MAINTENANCE AND REPAIR
----------------------------------------------------
(a) Except for the repairs that Lessor is specifically obligated
to make under Paragraph 15(b) hereof, and except for repairs covered by
contractor warranties held by Lessor for Lessor's benefit, during the term of
this Lease, Lessee, at Lessee's sole cost and expense, shall promptly make all
repairs, perform all maintenance, perform all custodial services and make all
replacements in and to the Lease Premises that are necessary in order to keep
the Leased Premises in good order and repair and in a safe and tenantable
condition. Without limiting the generality of the foregoing, Lessee, at its sole
cost and expense, is specifically required to make promptly all repairs to (i)
any pipes, water and waste lines, ducts, wires or conduits beneath or in the
Leased Premises or within the ceiling of the Leased Premises; (ii) any glass
windows included within the Leased Premises; (iii) Leasee's sign(s); (iv) any
electrical, natural gas (if any), heating, ventilating and air conditioning,
plumbing, and other systems, equipment, fixtures and items installed in or
servicing the Leased Premises; (v) the floors, ceilings and walls of the Leased
Premises; (vi) the entrance and exit and auxiliary driveways, if any, which are
part of and service the Leased Premises; and (vii) any portion of the Leased
Premises damaged by Lessee's use or occupancy of the Leased Premises or by any
act, omission or negligence of Lessee, or any of its respective employees,
agents, invitees, licensees or contractors. All repairs, and replacements made
by Lessee shall utilize materials and equipment which are at least equal in
quality and usefulness to those originally used in the Leased Premises. Lessee,
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at Lessee's expense, shall enter into one (1) or more service contracts for the
maintenance of the heating, ventilating and air conditioning systems and
equipment. Lessee shall keep the Leased Premises free of all insects, rodents,
vermin and pests of every type and kind. Lessee shall also, promptly and at its
own expense, keep any sidewalks and curbs adjacent to the Leased Premises clean
and free from snow, ice, dirt and rubbish. Lessee shall not (directly or by
sufferance) place any equipment, materials or debris on the roof of the Leased
Premises, or cut, drive nails into or otherwise mutilate such roof.
(b) Lessor shall within thirty (30) days (or such longer period of
time as may reasonably be required by Lessor) after written notice from Lessee
with respect thereto, make necessary structural repairs to the exterior walls
and shall keep in good order, condition and repair the exterior foundations,
downspouts, gutters and roof of the Leased Premises and the portion of the
plumbing and sewage system located outside the building in which the Leased
Premises are located (it being understood and agreed that Landlord's obligations
exclude the exterior and interior of all windows, doors, plate glass and signs,
and repairs required by any casualty except as otherwise covered by Paragraph 13
herein). Lessee shall, upon demand, reimburse Lessor for reasonable costs of
making any such repairs or replacements caused by Lessee's use or occupancy of
the Leased Premises or by any act, omission or negligence of Lessee, any
subtenant or concessionaire of Lessee, or their respective employees, agents,
invitees, licensees or contractors (excluding repairs or replacements caused by
Lessee's normal use).
(c) Lessee hereby covenants to contain all garbage, rubbish,
waste, trash and debris generated in conjunction with its use of the Leased
Premises in containers provided by Lessor (which shall be emptied no more than
three times per week, but at least once a week) so as not to constitute a safety
or fire hazard.
16. ALTERATIONS
-----------
Lessee shall not make any non-structural interior alterations,
additions or improvements in or to the Leased Premises without the prior written
consent of Lessor in each instance, which consent shall not be unreasonably
withheld or delayed. Lessee shall not take any structural or exterior
alterations, additions or improvements to the Leased Premises without the prior
written consent of Lessor. Should Lessor fail to respond within fifteen (15)
working days after Lessor's receipt of any written request from Lessee for
Lessor's consent to any proposed alterations, additions or improvements,
Lessor's consent shall be deemed to have been granted. All permitted
alterations, additions and improvements made by Lessee shall be performed (i) in
a good and workmanlike manner, (ii) in accordance with all applicable legal and
insurance requirements, (iii) only after receipt by Lessee and presentation to
Lessor of all necessary permits and licenses, and (iv) at Lessee's sole expense.
Except for Lessee's removable trade fixtures, and all improvement made by Tenant
in the processing and storage areas, all improvements, repairs, alterations and
additions and all other non-trade fixtures, whether installed before or after
the execution of this Lease, shall remain upon the Leased Premises at the
expiration or sooner termination of this Lease and become the property of Lessor
-17-
without payment therefor by Lessor, unless prior to the termination of this
Lease, Lessor shall have given written notice to Lessee to remove the same, in
which event Lessee, at its expense, will remove such alterations, improvements,
additions and/or fixtures and repair and restore any and all damage to the
Leased Premises caused by the installation and/or removal thereof.
17. SIGNS
-----
Lessee may not install any sign without Lessor's prior written
consent. All signs shall be in strict compliance with the sign criteria set
forth in Exhibit "C" attached hereto and made part hereof. Lessee shall install
all exterior signs for the Leased Premises at the cost and expense of Lessee. No
sign, advertisement or notice shall be inscribed, painted, affixed or otherwise
displayed on any part of the outside or the inside of the Leased Premises or the
building of which the Leased Premises are a part, unless Lessor shall have
approved the sign, advertisement, or notice in writing prior to installation of
the same. If any sign, advertisement, or notice is exhibited by Lessee without
having first obtained Lessor's approval thereof, Lessor shall have the right to
remove the same and Lessee shall be liable for any and all expenses incurred by
Lessor in said removal. No signs made of paper and visible from outside of the
Leased Premises shall be allowed in the Leased Premises. No mobile sign, such as
may be affixed to the side of a truck or a trailer or a mobile platform shall be
permitted in the parking area.
18. LAWS AND INSURANCE STANDARDS
----------------------------
Lessee shall, at Lessee's sole expense, promptly comply in every
respect with all applicable laws, ordinances, rules and regulations of all
federal, state, county, and municipal governments now in force or that may be
enacted in the future, all applicable and enforcement directions, rules and
regulations of the fire ▇▇▇▇▇▇▇▇, health officer, building inspector or other
proper officers of any governmental agency having jurisdiction, and the
applicable standards established from time to time by the National Board of Fire
Underwriters, the National Fire Protective Association, or any similar bodies.
Lessee expressly covenants and agrees to indemnify and save Lessor harmless from
any penalties, damages or charges imposed for any violation of the foregoing.
Notwithstanding the foregoing, Lessee shall not be required to make any changes
or modifications to the Leased Premises, unless (a) the same are required due to
Lessee's specific use and/or occupancy of the Leased Premises, (b) the same are
required due to structural specifications (beyond building standard) required by
Lessee, or (c) the same relate to repairs, maintenance or other responsibilities
of Lessee under this Lease, e.g., Paragraph 15(a) hereof.
19. MECHANIC'S LIENS
----------------
Lessee shall do all things necessary to prevent the filing of any
mechanics' or other liens against the Leased Premises, or the land the building
of which the Leased Premises are part, by reason of work, labor, services or
-18-
materials supplied or claimed to have been supplied to Lessee or anyone holding
the Leased premises, through or under Lessee. If any lien shall at any time be
filed, Lessee shall either cause the lien to be discharged of record within ten
(10) days after knowledge of its filing or, if Lessee in its discretion and good
faith determines that the lien should be contested, shall furnish such security
as may be necessary to prevent the filing of any foreclosure proceedings during
the pendency of the contest. If Lessee shall fail to discharge any lien within
such period or fail to furnish such security, then, in addition to any other
right or remedy, Lessor may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
lien by deposit in court or by giving security or in such other manner as is or
may be prescribed by law. Lessee shall repay to Lessor on demand all sums
disbursed or deposited by Lessor pursuant to the foregoing provisions, including
the expenses and reasonable attorneys' fees incurred by Lessor. Nothing
contained in this Lease shall imply that Lessee has any authority or consent
from Lessor to subject Lessor's estate to any mechanics', materialman's or other
lien.
20. ASSIGNMENT AND SUBLETTING
-------------------------
(a) Lessee shall not assign, mortgage or encumber any interest in
this Lease or sublet all or any part of the Leased Premises without the prior
written consent of Lessor. Lessor shall not unreasonably withhold or delay its
consent to an assignment or subletting of this Lease.
(b) No permitted assignment or subletting shall release, discharge
or affect the liabilities of Lessee as provided for in this Lease, and Lessee
shall at all times remain primarily liable under this Lease. An assignment by
operation of law shall be deemed a prohibited assignment under this Paragraph.
21. INSOLVENCY
----------
Lessor may, at its option, declare this Lessee terminated and
reenter and resume possession of the Leased Premises, if Lessee shall be
adjudicated a bankrupt or insolvent, or if a receiver or trustee shall be
appointed for Lessee's business or property, or if Lessee shall file a petition
in bankruptcy or insolvency, or if a petition or other proceeding shall be filed
by or against Lessee seeking corporate or other reorganization, liquidation or
other similar relief or if Lessee shall make an assignment or an arrangement for
the benefit of creditors, or if an involuntary petition shall be filed against
Lessee in bankruptcy or insolvency and such petition shall not be dismissed
within sixty (60) days.
22. REMEDIES CUMULATIVE
-------------------
The various rights, elections and remedies of Lessor contained in
this Lease shall be cumulative, and no one of them shall be construed as
exclusive of any of the others, or of any right, priority or remedy allowed or
provided for by law.
-19-
23. WAIVER OR DEFAULT
-----------------
The waiver by either party of any default in the performance by
the other of any covenant shall not be construed to be a waiver of any preceding
or subsequent default of the same or any other covenant contained herein. The
subsequent acceptance of Rent or other sums by Lessor shall not be deemed a
waiver of any preceding default other than the failure of Lessee to pay the
particular rental or other sum so accepted.
24. HOLDING OVER
------------
If Lessee shall hold possession of the Leased Premises after the
end of the term or other termination of this Lease, Leases shall be deemed to be
occupying the Leased Premises as a tenant from month to month, subject to all of
the conditions, provisions and obligations of this Lease; provided, however,
Lessee shall be liable for any and all damages and expense that Lessor may
sustain by virtue of Lessee's holding over, including, but not limited to, any
amount for which Lessor may be liable under, or as a result of, any other lease
entered into by Lessor for a term beginning at or after the expiration of the
term of this Lease. Nothing contained in this Lease shall be construed as a
consent by Lessor to the occupancy or possession of the Leased Premises by
Lessee after the expiration of the term of this Lease. Rather, at the end of the
term of the Lease, Lessor shall be entitled to the benefit of all laws or
ordinances relating to the recovery of the possession of lands and tenements
held over by tenants that now may be in force or hereafter may be enacted, and
Lessor may proceed under such laws or ordinances, without notice to Lessee, all
statutory notice requirements being expressly waived by Lessee.
25. SURRENDER
---------
Upon the expiration of the term of this Lease, Lessee immediately
shall surrender the Leased Premises broom-clean and in good order and condition,
ordinary wear and tear excepted. All of Lessee's personal property at or about
the Leased Premises (but not permanently affixed parts of the Leased Premises)
shall be removed by Lessee at or before the expiration of this Lease or shall be
deemed abandoned by Lessee. Any damage to the Leased Premises caused by such
removal shall be repaired by Lessee at its own expense.
26. DEFAULT
-------
(a) If Lessee fails to pay any Rent or Additional Rent when due
and such failure continues for a period of five (5) days after Lessor shall have
made written demand on Lessee for payment, or if Lessee otherwise is at any time
in default under this Lease and continues in such default for a period of thirty
(30) days after Lessor shall have demanded in writing to Lessee that such
default be cured, or if such latter default is not capable of being cured within
-20-
a fifteen (15) day period, such additional time (not to exceed forty-five (45)
days) as is reasonably necessary to cure such default, provided Lessee promptly
commences and diligently pursues to cure such default, then Lessor may, at
Lessor's option, terminate this Lease (without releasing Lessee of liability)
and by summary proceedings or other manner prescribed by law, reenter and take
possession of the Leased Premises. If Lessor should so terminate this Lease,
Lessee shall pay to Lessor as damages, upon demand, all expenses (including,
without limitation, attorneys' fees) of any proceedings necessary in order for
Lessor to recover possession of the Leased Premises and the expenses of
reletting the Leased Premises (including, without limitation, reasonable
attorneys' fees, brokerage commissions, and the costs of putting the Leaded
Premises in good order and preparing it for reletting, plus either:
(i) Liquidated damages in an amount equal to the excess, if
any, of the Rent and Additional Rent that would have been payable over the
unexpired portion of the term of this Lease over the rental value of the Leased
Premises for such unexpired portion of the term of this Lease, as discounted at
the then publicly declared prime rate of the Federal Bank in Baltimore,
Maryland; or
(ii) Damages in an amount to the excess, if any, of the
monthly Rent and Additional Rent over the monthly rentals, if any, if fact
collected by Lessor as the result of a reletting of the Leased Premises at such
rent and upon such terms as Lessor, in its sole discretion, elects to accept.
Separate actions may be maintained each month by Lessor to recover the damages
then due as provided for in this subparagraph (ii) and any such action shall not
prejudice the rights of Lessor to collect damages for any subsequent month in a
similar proceeding.
(b) No re-entry or reletting of the Leased Premises, whether or
not the term of such reletting extends beyond the term of this Lease, shall be
construed as an election by Lessor to: (i) accept a surrender of the Leased
Premises, or (ii) release Lessee of any of its obligations under this Lease.
(c) Should Lessor, pursuant to its rights under Paragraph 26(a)
hereof, elect to terminate this Lease and reenter and take possession of the
Leased Premises, Lessor shall use commercially reasonable efforts, under then
prevailing circumstances, to relet the Leased Premises.
27. ACCESS TO LEASED PREMISES
-------------------------
(a) Lessor and its designees shall have the right (subject to
being accompanied by Lessee's representative at all times for security reasons)
to enter upon the Leased Premises at all reasonable hours, after 24 hours
notice, (and in emergencies, at all times): (i) to inspect the same; (ii) to
make repairs, additions, or alterations to the Leased Premises or the building
in which the same are located or any property owned or controlled by Landlord;
(iii) to exhibit the Leased Premises to any prospective buyer, lessee or
mortgagee or their respective agents or representatives; and (iv) for any lawful
purpose.
-21-
(b) For a period commencing three (3) months prior to the end of
the term, Lessor may have reasonable access to the Premises for the purpose of
exhibiting the same to prospective tenants and to post any "For Rent" or "For
Lease" signs upon the Leased Premises.
28. SUBORDINATION AND ATTORNMENT
----------------------------
(a) This Lease is subject and subordinate to the lien of all
present and future mortgages and/or deeds of trust encumbering the Leased
Premises, all present and future advances under such mortgages and/or deeds of
trust, and all renewals, extensions, modifications, recastings or refinancings
of such mortgages and/or deeds of trust. Lessee agrees that, in the event any
proceedings are brought under or for the foreclosure of any such mortgage and/or
deed of trust, Lessee shall, if requested to do so by the beneficiary under or
holder of such mortgage and/or deed of trust or by any successor in interest to
such beneficiary or holder, automatically become the lessee of such beneficiary,
holder or successor in interest and shall automatically attorn to such
beneficiary, holder and/or successor in interest and recognize such beneficiary,
holder and/or successor in interest as the Lessor under this Lease. In
confirmation of such attornment, however, Lessee shall, at the request of Lessor
or any beneficiary, holder or successor in interest, promptly execute any
requisite or appropriate certificate or other document for the benefit of such
beneficiary, holder and/or successor in interest.
(b) In the event that, after the date of this Lease, a bona fide
loan shall be made by an insurance company, savings bank, commercial bank, trust
company, or other lender and secured by a mortgage or deed of trust constituting
a lien against any portion of the Leased Premises and said lender shall
complete, execute and acknowledge a subordination, attornment, and
non-disturbance agreement, then and in that event, Lessee shall subordinate this
Lease to said mortgage or deed of trust by executing and acknowledging the said
subordination, attornment and non-disturbance agreement.
(c) Upon any assignment or termination of Lessor's interest in
the Leased Premises, Lessee shall, upon request, attorn in writing to the new
owner of the Leased Premises and shall pay to the new owner all rents and other
monies required to be paid and perform all of the other obligations of Lessee
under this Lease. Following any sale by Lessor of the property of which the
Leased Premises are a part, all obligations to the assigning Lessor to Lessee
shall cease and termination and Lessee shall look solely to the successor for
the performance of Lessor's duties hereunder.
(d) Notwithstanding the foregoing, this Lease shall not be
terminated so long as Lessee is not in default of any provisions in this Lease.
(e) Lessor shall, within fifteen (15) days after the date hereof
(or prior to the effective date of any encumbrance mentioned in this Section 28
created after the date hereof) obtain from the holder of any such encumbrance,
-22-
an agreement whereby if such holder or any successor in interest shall come into
possession of the Leased Premises, or any part thereof, by dispossession,
foreclosure or otherwise, or shall become the owner of such property, or take
over the rights of Lessor to such property, said holder shall not disturb the
possession, use or enjoyment of the Leased Premises by Lessee, its successors or
assigns, nor disaffirm this Lease or Lessee's rights or estate granted
hereunder, so long as Lessee performs all of its obligations in accordance with
the terms of this Lease.
29. RIGHT TO CURE DEFAULTS
----------------------
(a) If Lessee shall fail to comply fully with any of its
obligations under this Lease, then, in addition to Lessor's other rights, but
not the duty, to cure such breach at Lessee's expense. Lessee agrees to
reimburse Lessor, within fifteen (15) days after Lessor submits a statement of
the amount due, as Additional Rent, for all expenses incurred by Lessor as a
result of any efforts made by Lessor to cure any such breach.
(b) If Lessor shall fail to comply fully with any of its
obligations under this Lease, then, in addition to Lessee's other rights and
remedies under this Lease at law and in equity, Lessee shall have the right, but
not the duty, to cure such breach at Lessor's expense; provided that prior to
the exercise of such right to cure, Lessee shall give Lessor written notice
specifying the nature of the breach and Lessor shall be entitled to ten (10)
days after receipt of such notice within which to cure said breach or such
additional time as may be necessary if such breach is not susceptible to cure
within said ten (10) days, in which case Lessor shall commence to cure within
said ten (10) day period. Lessor agrees to reimburse Lessee, within fifteen (15)
days after Lessee submits a statement of the amount due, for all expenses
incurred by Lessee as a result of any efforts by Lessee to cure any such breach.
If Lessor fails to reimburse Lessee as aforesaid, Lessee may offset the amount
due against the payments of Rent becoming due hereunder unless Lessor give
written notice of dispute within said fifteen (15) day period either to the
existence of any default or the reasonableness of the amount expended to cure.
In the event such notice of dispute is given, the provisions of subparagraph (c)
shall govern. The right to setoff against Rent shall be subordinate to and there
shall be no setoff against the holder of any mortgages or deed of trust or any
purchaser at foreclosure or deed in lieu thereof on all or any portion of the
Leased Premises. The amount of all setoffs shall be limited to the cumulative
sum of One Hundred Thousand Dollars ($100,000.00).
(c) If Lessor has given notice of dispute as provided in
subparagraph (b), Lessee may have the issues of whether the Lessor is in default
of its obligations or the reasonableness of the amount of expenditures
determined by arbitration. Pending the results of such arbitration, there shall
be no setoff. In the event the arbitrators determine that Lessor was in default,
Lessor shall pay all costs of arbitration and Lessee shall have the right to
offset all of its costs and expenses of remedying such default (including
unreimbursed costs of the arbitration proceeding) against the payments of Rent
becoming due hereunder, subject to the limitations set forth in subparagraph (b)
above. If the arbitrators determine that Lessor was not in default, then Lessee
will pay all of the arbitration.
-23-
(d) If Lessor is determined to be in default in its obligations
under Paragraph 15(c) of this Lease and Lessee shall remedy such default in
accordance with the preceding paragraph, Lessee shall be entitled to offset one
hundred fifteen percent (115%) of the costs and expenses of remedying such
default, with the additional fifteen percent (15%) being to reimburse Lessee for
its overhead.
30. BROKERAGE
---------
Lessor hereby acknowledges that THE ▇▇▇▇▇▇▇ COMPANIES, INC.
("Broker") has served as Lessor's agent in connection with this Lease and agrees
to pay said Broker a commission as per a separate agreement between Lessor and
Broker. Lessor warrants to Lessee and Lessee warrants to Lessor that it has not
dealt with any other broker or real estate agent or finder in connection with
this Lease and that, except for the aforesaid commission payable to Broker, no
right or claim for commission or other compensation has been created by its
actions with respect to this Lease. Lessor and Lessee shall indemnify and hold
each other harmless against all loss, liability or expense, including reasonable
attorney's fees and litigation costs, incurred by the other to the extent one or
the other is shown to be in breach of the foregoing warranties.
31. EFFECT OF CONVEYANCE
--------------------
If during the term of this Lease Lessor sells its interest in the
Leased Premises or this Lease, then from and after the effective date of such
sale, Lessor shall be released and discharged from any and all further
obligations and responsibilities under this Lease except those already accrued.
Any such sale shall be subject to this Lease and Lessor shall require any
purchaser to acknowledge the existence of Lessee's tenancy.
32. INTERPRETATION
--------------
The captions by which the paragraphs of this Lease are identified
are for convenience only and shall have no effect upon the interpretation of
this Lease. Whenever the context so requires, the singular number shall include
the plural, and plural shall refer to the singular and the neuter gender shall
include the masculine and feminine genders. If any provision of this Lease shall
be held to be unenforceable by a court, the remaining provisions shall remain in
effect and shall in no way be impaired.
33. ENTIRE INSTRUMENT
-----------------
All of the agreements previously and contemporaneously made by the
parties are contained in this Lease, and this Lease cannot be modified in any
respect except by a writing executed by Lessor and Lessee.
-24-
34. ESTOPPEL CERTIFICATES
---------------------
Recognizing that both parties may find it necessary to establish
to third parties, such as accountants, banks, mortgagees or the like, the then
current status of performance hereunder, either party, on the written request of
one to the other made from time to time, will promptly furnish a written
certificate on the status of any matter pertaining to this Lease in such form
and substances as may from time to time be reasonably required.
35. NOTICES
-------
Any notices and other communications required or permitted to be
given by either party to the other shall be in writing and shall be deemed to
have been served when hand delivered or, if the United States Mail is used, on
the second business day after the notice is deposited in the United States Mail,
postage prepaid, registered or certified mail, or by overnight delivery service,
and addressed to the parties as follows:
To Lessee: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
Bio Science Contract Product Corp.
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Lessor: Muirkirk Manor Associates Limited Partnership
c/o The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Either party, by written notice to the other, may change its address to which
notices are to be sent.
36. WAIVER
------
Any waiver of either Lessor or Lessee of any default, breach or
failure by the other to comply with any term, condition, or provision of this
Lease shall not constitute a waiver of any other default, breach or failure by
such defaulting party. No covenant, term or condition of this Lease shall be
deemed to have been waived by either party unless such waiver be in writing and
signed by the party to be charged therewith.
37. QUIET ENJOYMENT
---------------
So long as Lessee is not in default beyond applicable grace
periods, Lessee shall have peaceful and quiet use and possession of the Leased
Premises without hindrance on the part of Lessor or any person claiming by,
through or under Lessor.
-25-
38. RECORDING THIS LEASE
--------------------
Lessee may not record either this Lease nor a memorandum thereof
among or in any public records without Lessor's prior written consent.
39. GOVERNING LAW
-------------
All questions with respect to construction of this Lease and the
rights and liabilities of the parties shall be determined in accordance with the
laws of the State of Maryland.
40. BENEFIT
-------
Subject to the restrictions on assignment and subletting set forth
in Paragraph 20, the covenants, terms and conditions of this Lease shall inure
to the benefit of and be binding upon Lessor and Lessee and their respective
successors and assigns.
41. REASONABLE CONSENT
------------------
Wherever in this Lease Lessor or Lessee is required to obtain the
consent or approval of the other, it is agreed that such consent or approval
shall not be unreasonably withheld or delayed.
42. TIME OF ESSENCE
---------------
Time is of the essence in the performance of all of Lessor and
Lessee's obligations under this Lease.
(See Lease Addendum for Paragraphs 43 and 44)
-26-
IN WITNESS WHEREOF, the parties have executed this Lease on the
day and year first above written.
WITNESS: LESSOR:
MUIRKIRK MANOR ASSOCIATES
LIMITED PARTNERSHIP,
a Maryland limited partnership
By: THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP, INC.
its general partner
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Seal)
------------------------- ----------------------------
WITNESS: LESSEE:
BIO SCIENCE CONTRACT PRODUCTION CORP.
a Maryland corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------ ---------------------
-27-
EXHIBIT "A" (PART II)
LEASE ADDENDUM
--------------
(PARK PLACE)
THIS LEASE ADDENDUM made as of the 28th day of December, 1990, is
attached to and made part of that certain Lease of even date herewith (the
"Lease") by and between MUIRKIRK MANOR ASSOCIATES LIMITED PARTNERSHIP, a
Maryland limited partnership ("Lessor"), and BIO SCIENCE CONTRACT PRODUCTDION
CORP., a Maryland corporation ("Lessee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, LESSOR and LESSEE have agreed to amend, supplement and/or
modify the Lease as herein provided, Lessor and Lessee hereby agree as follows:
2. TERM - OPTION
-------------
Lessee, at its option, shall have the right to extend the Term of
this Lease on the same terms and conditions as the original term thereof, except
as otherwise provided in this Addendum with respect to the amount of Base Rent
during the respective extension period, for two (2) additional consecutive terms
of five (5) years each (the "Extension Periods") subject to the satisfaction of
the following conditions:
(i) Lessee's option to extend the Lease for each of the
Extension Periods shall be exercisable only by written notice to ▇▇▇▇▇▇ at least
ninety (90) days prior to the commencement date of each Extension Period. If
Lessee does not give Lessor written notice as aforesaid, Lessee shall be deemed
to have not exercised its respective extension option.
(ii) At the time of exercise of the option and at the
commencement of each Extension Period, Lessee shall not be in default under the
Lease beyond any applicable grace period.
(iii) Upon exercising the option, the Base Rent will be the
product obtained by multiplying the Base Rent for the immediately preceding
Lease Year by one hundred four percent (104%).
3. RENT
----
For months 1, 2, 3 and 4 of the first base year, Lessee's
obligation to pay 1/2 of the monthly base rent is hereby waived. It is agreed
that Common Area Maintenance charges and Additional Rent, if any, will be
collected on the first day of occupancy, pursuant to Paragraph 8.(c).
-28-
43. LESSEE IMPROVEMENTS
-------------------
(d) The term "force majeure" as used herein shall include,
without limitation, the following: acts of God, strikes, lockouts or other
industrial disturbances; acts of public enemies; orders of any kind of the
government of the United States or of the State in which the Leased Premises are
located or of any subdivision thereof or any local government, or any of their
departments, agencies or officials, or any civil or military authority;
insurrections; riots; epidemics; landslides; lightning; earthquakes; fire;
hurricanes; storms; floods; washouts; droughts; arrests; restraint of government
and people; civil disturbances; explosions; breakage or accident to machinery,
transmission pipes or canals; partial or entire failure of utilities; or any
other cause or event not reasonably within the control of the Lessee.
(e) Tenant requires that certain improvements be made to the
Leased Premises for its use. The parties have agreed on the scope of the work
(the "Work") to be done and have approved construction drawings for the work.
The Work is to be done under a construction contract (the "Construction
Contract") between Landlord and ▇▇▇▇▇▇ Construction Corporation ("Contractor").
The Construction Contract has been approved by Landlord and Tenant. Landlord
will be responsible for the supervision and timely completion of the work,
regardless of the performance of the Contractor.
The Work is to be completed no later than March 1, 1991 for a
contract price of $231,148.70 of which Landlord will pay $200,000 and Tenant
will pay $31,148.70, provided that the amount to be paid by Tenant will be
reduced by any amount that the contract price is reduced for any reason. Prior
to commencement of the Work as provided in the Construction Contract, Tenant
will pay its contribution of $31,138.70 in escrow with C. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Escrow Agent"), as escrow agent, to be paid by the Escrow Agent to the
Contractor as the terms of the Construction Contract provide after the Landlord
has paid all of its $200,000 contribution, less retainage, to the Contractor.
Any changes to the approved construction drawings shall be
signed or initialed by Landlord and Tenant and change orders made to the
Construction Contract. Tenant agrees to pay to the Escrow Agent the contract
price for any change orders at the time such change orders are signed. Payment
is to be made by the Escrow Agent to the Contractor upon submission of invoices
approved by the Landlord. Tenant shall be responsible to Landlord for any delay
in completion of the work as a result of such changes. Neither the commencement
date of the Lease nor the commencement of rents due shall be deferred because of
any such changes but will be deferred if the Work is not completed by the
completion date given above for any reason other than the effect of any such
change order.
-29-
44. GROUND LEASE
------------
Lessor has leasehold ownership of the project known as Park Place,
of which the Leased Premises are a part, under a long-term ground lease (the
"Ground Lease"), the term of which exceeds the initial term and extension
periods of this Lease. Lessor represents that the Ground Lease is in full force
and effect and that there are no defaults thereunder. Lessor further agrees that
so long as this Lease in effect, it will timely perform all of its obligations
under the Ground Lease.
Lessor shall, within fifteen (15) days after the date hereof
obtain from the Lessor (the "Ground Lessor") under the Ground Lease, an
agreement whereby if the Ground Lessor terminates the Ground Lease, the Ground
Lessor shall not disturb the possession, use or enjoyment of the Leased Premises
by Lessee, its successors or assigns, nor disaffirm this Lease or Lessee's
rights or estate granted hereunder, so long as Lessee performs all of its
obligations in accordance with the terms of this Lease.
IN WITNESS WHEREOF, the parties have executed this Lease Addendum on
the day and year first above written.
ATTEST: LESSOR:
MUIRKIRK MANOR ASSOCIATES
LIMITED PARTNERSHIP,
a Maryland limited partnership
By: THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP, INC.
its general partner
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Seal)
------------------------- ----------------------------------
LESSEE:
BIO SCIENCE CONTRACT PRODUCTION CORP.
a Maryland corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- ---------------------
-30-
EXHIBIT "B"
SECOND LEASE
------------
LEASE
-----
(PARK PLACE)
THIS LEASE, made as of this 12th day of November, 1991, by and between
MUIRKIRK MANOR ASSOCIATES LIMITED PARTNERSHIP, a Maryland Limited partnership
("Lessor"), and BIO SCIENCE CONTRACT PRODUCTION CORP., a Maryland corporation,
("Lessee").
W I T N E S S E T H:
- - - - - - - - - -
That in consideration of the rent and mutual covenants and agreements
contained herein, and intending to be legally bound hereby, Lessor and Lessee
agree as follows:
1. DEMISED PREMISES
----------------
The Lessor leases to the Lessee all of that certain space
described as Suite ▇▇. ▇▇▇, ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Road, containing
approximately 12,731 square feet of gross leasable area, as is outlined in red
on the piat attached to and made a part of this Lease as Exhibit "A" (the
"Leased Premises"), and located in Park Place, Prince George's County, Maryland.
Lessor shall construct and complete the Leased Premises in compliance with the
plans and specifications set forth in Exhibit "B" attached hereto and made part
hereof. "Delivery of Possession" of the Lease Premises by Lessor to Lessee shall
be deemed to have been made when Lessor's architect certifies in writing that
construction of the Leased Premises shall have been completed.
2. TERM
----
The term (the "Term") of this Lease shall be for a term of nine
(9) years, and two (2) months, commencing on the 1st day of January, 1992, (the
"Commencement Date") and shall expire on the last day of February, 2001. If the
Term of the Lease does not begin on the date specified herein for reasons other
than the fault of Lessee, then the expiration date shall be moved for the
commensurate amount of the delay and the rent shall be prorated accordingly. If
the term commences or ends in mid-month, the rent payable for that month
(including, without limitation, Additional Rent) shall be prorated and paid on
the date of commencement or termination.
-31-
3. RENT
----
(a) The rent (the "Base Rent") shall be:
Year Square Foot Rate
---- -----------------
1 $ 9.06
2 $ 9.39
3 $ 9.77
4 $ 10.16
5 $ 10.57
6 $ 10.99
7 $ 11.43
8 $ 11.89
9 $ 12.36
The term "Lease Year" shall mean each twelve (12) month period during the term
of this Lease commencing on the Commencement Date. The Base Rent shall be
payable, in advance, in equal monthly installments, the first monthly
installment to be due and payable on the Commencement Date and each subsequent
monthly installment to be due and payable on the first day of each and every
month thereafter during the term of this Lease.
(b) All moneys payable by Lessee under the terms of this Lease,
other than Base Rent, as adjusted from time to time, shall be deemed "Additional
Rent."
(c) Lessee shall make all payments of Base Rent and Additional
Rent on a timely basis, without demand and without deduction, setoff or
counterclaim, except as expressly permitted in Paragraph 29(b) hereof. All
payments of Rent and Additional Rent shall be made by good and valid check,
payable to The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Group, Inc., agent, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other party or to such other address as
Lessor may designate from time to time by written notice to Lessee. If Lessor
shall at any time or times accept Base Rent or Additional Rent after it shall
become due and payable, such acceptance shall not excuse delay upon subsequent
occasions, or constitute, or be construed as, a waive of any or all of Lessor's
rights hereunder. If any payment of Base Rent or Additional Rent is not made
within ten (10) days of when due, a late charge of five percent (5%) of the
amount of such payment shall be imposed, Lessor shall be entitled to require the
payment of Base Rent and Additional Rent by certified check if the check for any
payment by Lessee shall be dishonored by its Bank.
(d) Except for the obligations of Lessor expressly set forth
herein, this Lease is a "net lease" and Lessor shall receive the Base Rent
hereinabove provided as net income from the Leased Premises, not diminished by
any imposition of any expenses or charges required to be paid to maintain and
carry the Leased Premises or to continue the ownership of Lessor, other than
payments under any mortgages now existing or hereafter created by Lessor, and
Lessor is not and shall not be required to render any services of any kind to
Lessee.
-32-
4. SECURITY DEPOSIT
----------------
(a) Lessee has, simultaneously with the execution of this Lease,
deposited with Lessor, in cash or by check subject to collection, the sum of
eight thousand and 00/100 ($8,000.00). Said deposit shall be held as security
for the faithful performance by Lessee of the terms, covenants, provisions and
conditions of this Lease. It is agreed that in the event Lessee defaults in
respect to any of the terms, covenants, provisions and conditions of this Lease,
including (but not limited to) the payment of Base Rent or Additional Rent, and
fails to cure any such defaults within applicable grace periods, Lessor may use,
apply or appropriate the whole or any part of the security so deposited to the
extent required for the payment of any Base Rent or Additional Rent or for the
curing of any defaults by Lessee hereunder pursuant to Paragraph 29 hereof;
provided, however, that no such use, application, or appropriation of the
deposit shall be deemed to relieve Lessee of any breach of this Lease and shall
be in addition to other remedies under this Lease.
(b) Should the entire deposit or any portion thereof be
appropriated and applied by Lessor under the foregoing provisions, then Lessee
shall (upon the written demand of Lessor) forthwith remit to Lessor a sufficient
amount in cash to restore said security to the original sum deposited, and
Lessee's failure to do so within ten (10) days after receipt of such demand
shall itself constitute an event of default under this Lease.
(c) The security deposit (less any amounts applied as provided in
subsection (a) above) shall be returned to Lessee within thirty (30) days after
the date fixed as the end of the Term of this Lease and delivery of entire
possession of the Leased Premises to Lessor.
(d) In the event of a sale, leasing or other transfer of the land
and building of which the Leased Premises forms a part, Lessor shall have the
right to transfer the security and be released by Lessee from all liability for
the return of such security deposit. Lessee shall look to the new Lessor solely
for the return of said deposit. The provisions of this Paragraph 4(d) shall
apply to every transfer or assignment made of the security deposit to a new
Lessor.
(e) Lessee covenants that it will not assign or encumber or
attempt to assign to encumber the security deposited herein and that neither
Lessor nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
(f) Lessee shall not be entitled to any interest on the security
deposit, and such funds need not be segregated or held as escrow by Lessor.
-33-
(g) It is expressly understood and agreed that, in the event of
any termination of this Lease or re-entry upon or reletting of the Leased
Premises on account of any default on the part of Lessee under this Lease, then,
and in such event, the deposit shall be retained and be subject to appropriation
by Lessor until this Lease would, by its terms, have expired absent such
default.
5. USE
---
Lessee will use and occupy the Leased Premises solely for the
purpose of Offices and operation of a vaccine research and production facility,
The Leased Premises may not be used for any other purpose without the prior
written consent of Lessor, which consent shall not be unreasonably withheld. The
Leased Premises shall not be used for the storage, distribution or sale of any
pornographic or "adult rated" materials. Lessee shall not use the Leased
Premises for any purpose or activity which is noxious or unreasonably offensive
because of the emission of noise, smoke, dust, vibration or odors. Tenant shall
not use the plumbing facilities for any purpose injurious to same or dispose of
any garbage or any other foreign substance therein, nor place a load on any
floor in the Leased Premises exceeding the floor load of 250 per square foot
which such floor was designed to carry, nor install, operate and/or maintain in
the Leased Premises and heavy equipment which could cause injury to the Lease
Premises, nor install, operate and/or maintain in the Leased Premises any
electrical equipment which will overload the electrical system therein, or any
part hereof, beyond its capacity for proper and safe operation as determined by
the Lessor or which does not bear underwriter's approval. Lessee shall not use
the Leased Premises in any manner or for any purpose which violates any rule,
regulation, law, ordinance, or requirements of any governmental agency.
6. TAXES
-----
(a) As additional rent hereunder, at least thirty (30) days
before any fine, penalty or interest or cost may be added thereto for the
non-payment thereof (or sooner if elsewhere herein required), Lessee shall pay
throughout the term of this Lease all levies, taxes, assessments, water and
sewer rents and charges, liens, charges for public utilities and all other
charges, imposts or burdens of whatsoever kind and nature which at any time
during the term of this Lease may be assessed or imposed by any federal, state
or municipal government or public authority, or under any law, ordinance
regulation thereof or pursuant to any recorded covenants or agreements (all of
which are hereinafter referred to as "Impositions"), upon or with respect to the
Leased Premises, any improvements made thereto, or this Lease. Additionally,
Lessee shall pay a proportionate share of any Imposition which is not imposed
upon the Leased Premises as a separate entity but which is imposed upon the land
or the building or upon the appurtenances, leases, rents, transactions or
documents relating to the lot or the building. Provided, however, that any
Imposition shall be apportioned for the first and last fiscal tax years covered
by the term hereof. "Impositions" shall include, but not be limited to, any and
all governmental or quasi-governmental levies, fees, assessments, taxes and
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever, with respect to such land and
building (excluding taxes paid on Lessor's income but including sales tax or
excise tax imposed by any governmental authority upon the Base Rent payable by
Lessee hereunder).
-34-
(b) Notwithstanding the foregoing provisions of this Article 6,
Lessor shall have the right, at its option, to require Lessee to pay to Lessor
or to any mortgagee, at the time when the monthly installment of Base Rent is
payable, an amount equal to one-twelfth (1/12) of the annual Impositions as
estimated by Lessor. If Lessor elects to have Lessee make such payments, Lessee
also shall pay to Lessor or to such mortgagee, as the case may be, at least
thirty (30) days before any fine, penalty, interest or cost may be added thereto
for the non-payment thereof, the amount by which the Impositions becoming due
exceed the monthly installment payments on account thereof previously made by
Lessee. Should Lessee's monthly installment payments on account of Lessee's
share of Impositions for any tax year exceed the actual amount of Lessee's share
of such Impositions, the excess amount shall be credited against Lessee's
installments for Impositions thereafter becoming due. The amounts paid by Lessee
pursuant to this paragraph (b) shall be used to pay the Impositions, but such
amounts shall not be deemed to be trust funds and no interest shall be payable
thereon.
(c) During any part of the Term of this Lease which shall be less
than a full tax fiscal year, any Taxes shall be pro rated on a daily basis
between the parties, to the end that Lessee only shall pay its share of Taxes
attributable to the portion of the tax fiscal years occurring within the term of
this Lease.
(d) Lessee shall pay promptly, and when due, all taxes, fees,
licenses, assessments and other charges levied or imposed upon the business of
the Tenant or upon any fixtures, furnishings or equipment in the Leased
Premises.
(e) If due to a future change in the method of taxation or in the
taxing authority, a franchise, gross receipts, transit, rent or other tax or
other governmental imposition, however designated, shall be levied against
Lessor in substitution (in whole or in part) for, or in addition to, said
"Impositions" as currently defined), then such franchise, gross receipts,
transit, rent or other tax or governmental impositions shall be deemed to be
included within the definition of "Impositions" for the purposes of this Lease.
The term "Impositions" also includes all costs reasonably incurred in any
proceeding brought by Lessor to reduce said Taxes.
(f) Lessor may institute any proceedings with respect to the
assessed valuation of Park Place or any part thereof, and Lessee shall cooperate
with, and participate in, any and all such proceedings. If, after Lessee shall
have made the required payment of Taxes hereunder, Lessor shall receive a refund
of any portion thereof, then, within thirty (30) days after Lessor's receipt of
such refund, Lessor shall pay to Lessee Lessee's pro rata share of the amount of
the refund, less all costs and expenses (including, but not limited to,
attorneys' and appraiser' fees) expended for incurred in obtaining such refund.
Lessee may not institute any proceedings with respect to the assessed valuation
of Park Place or any part thereof.
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7. UTILITIES
---------
Starting with the Commencement Date and continuing throughout the
Term of the Lease, Lessee shall be solely responsible for and shall pay, as and
when the same become due and payable and as hereinafter provided, all rents,
rates, costs and charges for water services, sewer service, electricity, gas,
heat, steam, power, telephone (and other communication services), and any other
utilities or services rendered or supplied to, upon or in connection with, or
used or consumed within or in servicing, the Leased Premises, and all other
utility costs and expenses involved in the use of the Leased Premises throughout
the term of this Lease, and Lessee shall indemnify Lessor and save Lessor
harmless against any costs liability or damages on such account. Unless
otherwise agreed in writing by Lessor or Lessee, Lessee shall, promptly upon
Delivery of Possession of the Leased Premises and at Lessee's own expense, pay
for the installation of separate meters for all utilities servicing the Leased
Premises and place said meters and related utility accounts in Lessee's own
name. Lessee shall pay all separately metered charges to the respective public
utility companies. With respect to each utility which is not separately metered
for the Leased Premises, Lessee shall pay Lessor, as Additional Rent, Lessee's
proportionate share of the total cost and fees therefore attributable to those
areas of the warehouse/office buildings which are not separately metered.
8. COMMON AREA MAINTENANCE
-----------------------
(a) Subject to the provisions of this Lease, Lessor grants to
Lessee, its employees, agents, customers and invitees during the Term hereof the
non-exclusive use, in common with Lessor and other tenants and occupants of Park
Place and their respective employees, agents, customers and invitees and in
common with such others as Lessor may designate from time to time, of all
non-allocated parking areas within Park Place for pedestrian and vehicular
ingress and egress and the accommodation and parking areas within Park Place for
pedestrian and vehicular ingress and egress and the accommodation and parking
automobiles as required by the Lessee in conducting normal business activities
of Lessee within the Leased Premises. Lessor reserves the right, however, to
designate certain portions of the parking areas within Park Place for parking of
trucks, vans, and other vehicles, and to designate for the specific account of
Lessee, or other tenants in Park Place, specific parking areas or spaces
constructed with Park Place. Notwithstanding anything contained in this Lease to
the contrary, Lessor shall have the right, at any time and from time to time, to
change the size, location and nature of the parking areas (so long as the number
of parking spaces is not reduced) and/or other common areas within Park Place.
All parking areas and related facilities which may be furnished by Lessor in or
near the Leased Premises, including employee parking areas, truck way or ways,
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loading docks, pedestrian sidewalks and ramps, landscaped areas, and other areas
and improvements which may be provided by Lessor for the general use, in common
with Lessor and other tenants, and their respective employees, agents, customers
and invitees, shall at all time be subject to the exclusive control and
management of Lessor, and Lessor shall have the right, from time to time, to
establish, modify and enforce reasonable rules and regulations with respect to
all parking areas and other facilities and areas mentioned in this paragraph.
Lessee agrees to abide by and conform with all such rules and regulations upon
notice thereof and to cause its employees, agents, customers and invitees to do
the same. Lessor shall have no liability to Lessee for use of the parking areas
by Lessor or other tenants and occupants of Park Place and their respective
employees, agents, customers, or other third parties. No provision of this Lease
shall be construed as a demise to Lessee of the parking or any other common
area) within Park Place. If any repairs (excluding repairs caused by Lessee's
normal use) to the parking or other common areas within Park Place are
necessitated by reason of any act or omission by Lessee or its employees,
agents, customers or invitees, then, if Lessor chooses to do so, Lessor may make
such repairs and Lessee shall promptly upon demand reimburse Lessor for the full
costs to the extent same are not covered by Lessor's insurance, or at Lessor's
option, Lessor may notify Lessee of the necessity for such repairs, and Lessee,
at its cost and expense, shall, with due diligence, commence and complete to
Lessor's satisfaction the repairs within ten (10) days of Lessee's receipt of
such notice.
(b) "Common Area Charges" means all of the costs and expenses
which are incurred by Lessor with respect to operation, management, maintenance
and security of the building including the parking and other designated common
areas in Park Place and the exterior walls of the buildings in Park Place, and
those areas of Park Place which house mechanical, electrical or other equipment
or are otherwise determined from time to time by Lessor to be used in operating
or maintaining Park Place. "Common Area Charges" include, but are not limited
to, the cost of maintaining, repairing, and replacing and repaving (when
necessary) the parking and other designated common areas; supplies, tools and
materials purchased and/or used in connection with repairs, maintenance and/or
replacements; wages, salaries, and fringe benefits of all employees of the
Lessor for the portion of time they are directly engaged in the operation,
maintenance and security of Park Place, including license and fees (but
excluding wages, salaries and benefits of executive employees); removing snow,
ice, and debris from the roadways and parking areas for Lessee's use during
normal business hours; removal of customary and normal trash; maintaining and
repairing or repainting (when necessary) directional signs, pavement markings,
and parking lot striping; repairing and replacing (when necessary) outdoor
lighting facilities; maintaining the grass and otherwise caring for the
replanting (when necessary) all shrubbery and landscape areas; providing such
security as Lessor, in its sole discretion, deems advisable; accounting and
legal fees for common areas at Park Place; utilities, heating, ventilation and
air-conditioning charges allocable to designated common areas and other building
service areas.
(c) Starting with the Commencement Date and continuing throughout
the Terms of this Lease, Lessee shall pay Lessor in advance as hereinafter
described and as Additional Rent, Lessee's Pro-Rata Share of all Common Area
Charges for said period. "Lessee's Pro-Rata Share" shall be a fraction, the
numerator of which shall be the floor area within the Leased Premises and the
denominator of which shall be the total floor area within all buildings in Park
Place. The Initial Lessee's Pro-Rata Share shall be 7%.
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(d) On or before the Commencement Date, on or before the end of
each and every Lease year, and at such other time(s) as is deemed desirable by
lessor in its sole discretion, Lessor shall forward to Lessee a "Common Area
Charges Statement", which shall contain Lessor's latest estimate of the Common
Area Charges for the then current or the then upcoming (as the case may be)
Lease Year, and a statement of Lessee's Pro-Rata Share thereof. Landlord's
failure to forward, or to timely forward, any Common Area Charges Statement
shall not excuse Lessee from its liability for Lessee's Pro-Rata Share of Common
Area Charges.
(e) Each month during the Term of this Lease, along with each
monthly installment of Base Rent, beginning with the Commencement Date, Lessee
shall pay to Lessor, in advance, an amount equal to one-twelfth (1/12th) of
Lessee's Pro-Rata Share of the Common Area Charges as set forth in the then
latest Statement. If the Commencement Date is a day other than the first day of
a calendar month, then the amount of Common Area Charges due for the first month
and the last month of the Term shall be pro rated on the basis of a thirty (30)
day month. As soon as practicable near the end of each and every Lease Year, but
no later than 90 days after the end of the Lease year, Lessor shall submit to
Lessee an "Actual Common Area Charges Statement" prepared by Lessor showing that
the Common Area Charges for the then preceding Lease Year actually were. With
the next monthly installment of Base Rent due after Lessee's receipt of such
Statement, Lessee shall pay Lessor or Lessor shall credit Lessee, as the case
may be the difference between Lessee's Pro-Rata Share of the actual Common Area
Charges for said Lease Year as shown on said Statement and the total of all
Common Area Charges paid by Lessee to Lessor for said Lease Year.
9. NON-LIABILITY OF LESSOR
-----------------------
(a) Except as otherwise expressly provided in this Lease or
unless caused by the negligence or intentional misconduct of Lessor or Lessor's
employees, agents and contractors while acting within the scope of their
employment, Lessor shall not be responsible or liable to Lessee for any loss or
damage to persons or property, or any interference or interruption of Lessee's
use of the Leased Premises, that may be occasioned by (I) water, gas, steam,
wind or the bursting, stoppage or leaking of any pipes, sewer or water lines, or
other conduits, fixtures or equipment; (ii) the interruption of any utility
services to the Leased Premises caused by the utility company; (iii) any
repairs, alterations, maintenance or additions to the Leased Premises or land
and building of which they are a part; (iv) any casualty; (v) theft or other
criminal conduct; or (vi) the acts or omissions of persons occupying any space
adjacent to the Leased Premises.
(b) No provisions of this Lease shall be deemed to confer any
rights upon any person or entities other than the parties to this Lease,
permitted successors and assigns and mortgages.
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(c) Notwithstanding anything to the contrary provided in this
Lease, it is specifically understood and agreed that there shall be absolutely
no personal liability on the part of Lessor, including partners in Lessor and
their respective successors and assigns, with respect to its performance or
observance of any of the terms, covenants and conditions of this Lease, and that
Lessee shall look solely to the equity of the Lessor in the land and building of
which the Leased Premises form a part for the satisfaction of each and every
remedy of Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed or observed by Lessor,
such exculpation of personal liability to be absolute and without any exception
whatsoever.
(d) If Lessor shall fail to comply fully with any of its
obligations under this Lease, Lessee may seek and enforce specific performance
of the Lease against Lessor and pursue such other equitable remedies as may be
available to Lessee. Notwithstanding the foregoing, the result of such action
shall be subject to the provisions of Paragraph 9(c) hereof.
10. INDEMNITY
---------
Lessee agrees to indemnify and save Lessor harmless from and
against any and all claims, demands, costs and expenses (including, but not
limited to, reasonable attorneys' fees and litigation costs) for, or in
connection with, any accident, injury or damage whatsoever to any person or
property (I) arising directly or indirectly out of Lessee's use of occupation of
the Leased Premises, (ii) occurring in, on or about the Leased Premises or on
the sidewalks adjoining the same, or (iii) arising directly or indirectly from
any act or omission of Lessee or any of Lessee's licenses, servants, agents,
employees or contractors. The foregoing indemnity shall not apply to any such
claim or demand proximately caused by the negligence or misconduct of Lessor, or
its employees, agents and contractors while acting within the scope of their
employment.
11. LIABILITY INSURANCE
-------------------
(a) Lessee, at Lessee's sole expense, shall obtain and maintain
in effect at all times starting with the Commencement Date and continuing
throughout the term of this Lease, a policy or policies of comprehensive general
public liability insurance, insuring Lessor, Lessor's mortgagee(s) and Lessee
against any liability for injury, death or property damage occurring upon, in or
about any part of the Leased Premises or any appurtenances thereto, affording
protection to the limits of not less than One Million Dollars ($1,000,000.00)
with respect to bodily injury or death of any one person, and not less than
Three Million Dollars ($3,000,000.00) with respect to any one incident, and not
less than Five Hundred Thousand Dollars ($500,000.00) with respect to property
damage. The foregoing minimum limits may, at Lessor's option and upon thirty
(30) days' notice to Lessee, be increased from time to time to reflect inflation
or changed conditions.
(b) The insurance policy(ies) required to be procured by Lessee
under this Lease:
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(i) Shall be issued by a reputable insurance company
licensed to do business in the State of Maryland and shall have such form and
content as shall be approved by Lessor.
(ii) Shall be written as primary policy coverage and not
contributing with, or in excess of, any coverage which Lessor may carry.
(iii) Shall have an endorsement thereto to the effect that no
act or omission by Lessee shall affect the obligation of the insurer to pay
Lessor the full amount of any loss sustained by Lessor and shall contain an
express waiver of any right of subrogation by the insurance company against
Lessor, its agents and employees.
(iv) Shall name Lessor as an additional named insured.
(c) On or before the Commencement Date, and at least fifteen (15)
days before the expiration date of the policy, Lessee shall deliver to Lessor a
certificate of insurance evidencing the existence and good standing of the
liability policy referred to in Paragraph 11(a), together with evidence of
payment of all premiums. The insurance required to be carried under this Lease
may be carried under a blanket policy covering the Leased Premises and other
locations of Lessee. The insurance policy required to be carried by Lessee shall
provide that such insurance policy shall not be canceled unless Lessor and
Lessor's mortgagee(s) shall have received thirty (30) days' prior written notice
of cancellation. In the event that Lessee shall, prior to the thirtieth (30th)
day before any insurance policy will lapse or terminate, fail to furnish
evidence of the coverage and pay the premium therefor for a period not exceeding
one year, and the premiums so paid by Lessor shall be payable by Lessee, on
demand, as Additional Rent.
12. HAZARD INSURANCE
----------------
(a) Starting with the Commencement Date and continuing throughout
the Term of this Lease, Lessee shall pay to Lessor, or such other party as
Lessor shall designate by written notice to Lessee, as Additional Rent, Lessee's
Pro-Rata Share, as defined in Paragraph 12(e) hereof, of the premiums and other
charges (the "Premiums") that may be incurred or contracted for or by Lessor for
fire and casualty insurance coverage for the land and buildings of which the
Leased Premises form a part, including protection from such perils as may be
insured against under a broad form extended coverage endorsement or on all risk
of physical loss policy, and further including loss of rental coverage in an
amount equal to the Rent for one (1) Lease Year. The premiums for all insurance
to be obtained by Lessor under this Paragraph 12(a) shall be reasonably
competitive with the premiums charged for similar insurance protection by
reputable insurers for comparable properties. Lessee agrees that it will not
store gasoline or other explosive, flammable or toxic material in the Leased
Premises or do anything which may cause Lessor's insurance company to void the
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policy covering the Leased Premises or to increase the premium thereon, and that
Lessee will immediately conform to all rules and regulations from time to time
made or established by Lessor's insurance company or insurance rating bureau.
Lessor will do everything reasonably possible and consistent with the conduct of
Lessee's business to obtain the lowest possible rates for insurance on the
Leased Premises. If, however, the cost to Lessor of obtaining insurance on the
Leased Premises (or the building which the Leased Premises are located) is
increased due to the Lessee's occupancy thereof, and the Lessor's insurer
provides evidence that said increase is the direct cause of Lessee's occupancy,
Lessee agrees to pay, promptly upon demand, as additional rental, any such
increase.
(b) On or before the Commencement Date and before the due date of
each and every ▇▇▇▇ for the Premiums, Lessor shall forward to Lessee an
"Insurance Statement" which shall contain an estimated statement of the amount
due from Lessee from time to time as Lessee's Pro-Rata Share of the Premiums.
Lessor's failure to forward, or to timely forward, any Insurance Statement shall
not excuse Lessee from its liability for Lessee's Pro-Rata Share of the
Premiums.
(c) Each and every month during the Term of this Lease, along
with its monthly installment of Fixed Rent, beginning on the Commencement Date,
Lessee shall pay Lessor an amount equal to one-twelfth (1/12) of Lessee's
Pro-Rata Share of the Premiums as set forth in the then latest Insurance
Statement, which shall be credited toward Lessee's Pro-Rata Share of the
Premiums when the same are due and payable. Should Lessee's monthly installment
payments on account of Lessee's Pro-Rata Share of the Premiums for the period to
which the Premiums relate exceed the actual amount of Lessee's Pro Rata Share of
such Premiums, the excess amount shall be credited against Lessee's installments
for Premium thereafter becoming due. If the Commencement Date is other than the
first day of a period to which the Premiums relate, then the installments of the
Premiums due from the Lessee shall be pro rated on the basis of a thirty (30)
day month.
(d) Notwithstanding the provisions of Paragraph 12(c) above,
Lessor may, upon ten (10) days' written notice to Lessee, require Lessee to pay
Lessee's Pro- Rata Share of the necessary Increased Premiums due to Lessee's
occupancy at such times as the Premiums are due and payable to the respective
insurance company or companies or in such manner as is required of Lessor under
any mortgage, whether such payments be in lump sum or other installments.
(e) Lessee's Pro-Rata of the Premiums shall be of all the
Premiums due for the land and building of which the Leased Premises form a part.
As used in this Paragraph 12, "Lessee's Pro Rata Share" shall be a fraction, the
numerator of which shall be the floor area within the Leased Premises and the
denominator of which shall be the total floor area within the building of which
the Leased Premises form a part.
(f) Lessor hereby releases Lessee from any liability and
responsibility to Lessor to anyone claiming through or under Lessor by way of
subrogation or otherwise, for any and all loss or damage to the Leased Premises
caused by fire or any casualty covered by insurance to the extent insurance
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proceeds are received therefor, even if such fire or other casualty shall have
been caused by the fault or negligence of Lessee, or anyone for whom Lessee may
have been responsible. Lessor's insurance policies shall include appropriate
clauses (i) waiving all rights of subrogation against Lessee with respect to
losses payable under such policies, and (ii) agreeing that such policies shall
not be invalidated should the insured waive in writing prior to a loss any and
all rights of recovery against the other party hereto for losses covered by such
policies.
13. DAMAGE TO THE DEMISED PREMISES
------------------------------
(a) In the event of partial or total damage or destruction of the
Leased Premises by fire, other casualty, or any cause whatsoever (except
condemnation), Lessee shall give immediate notice to Lessor. If the damage or
destruction is insured against by Lessor, this Lease shall continue in full
force and effect, and, to the extent that insurance proceeds respecting such
damage or destruction are subject to being utilized and, in fact, may be
utilized by Lessor for repair, Lessor shall cause such damage or destruction to
be repaired with reasonable speed at the expense of Lessor, except as otherwise
hereinafter provided in this Paragraph 13. If in the reasonable opinion of
Lessor the damage or destruction is such that repair thereof cannot reasonably
be completed within ninety (90) days of the date the damage or destruction
occurs, Lessor shall have the right to terminate this Lease by the giving of
written notice to such effect to Lessee within thirty (30) days of the date of
Lessor's receipt of Lessee's notice of damage or destruction. In no event shall
Lessor be required to restore or repair Lessee's personal property or other
contents within the Leased Premises. Due allowance shall be made for reasonable
delay which may arise by reason of Lessor's adjustment of loss under insurance
policies and on account of labor troubles or any other cause beyond Lessor's
control. To the extent that the Leased Premises are rendered untenantable, the
Rent and Additional Rent shall proportionately ▇▇▇▇▇. If the damage or
destruction is not covered by insurance maintained by Lessor or if insurance
proceeds respecting the damage or destruction are not subject to being utilized
for repair and, in fact, may be not so utilized, Lessor shall not be required to
repair the damage or destruction. In the event the damage or destruction is so
extensive to the building of which the Leased Premises are a part as to render
it uneconomical, in Lessor's opinion, to restore the Leased Premises, the Lease,
at the option of Lessor, shall be terminated upon written notice to Lessee and
Lessee shall immediately thereafter vacate the Leased Premises and surrender the
same to Lessor. No such termination shall release Lessee from any liability to
Lessor from any of the obligations or duties imposed on Lessee under this Lease
prior to the damage. Upon any termination of this Lease pursuant to his
Paragraph 13(a), Rent and Additional Rent shall be prorated and adjusted to the
date of such termination.
(b) Lessee hereby waives any and all right of recovery which it
might otherwise have against Lessor, its agents and employees, for loss or
damage to Lessee's contents, furniture, furnishings, fixtures and other property
removable by Lessee under the provisions of this Lease to the extent that the
same is to be covered by Lessee's insurance thereunder, except where such loss
or damage may result from the negligence of fault of Lessor, its agents,
employees or contractors.
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14. EMINENT DOMAIN
--------------
(a) If during the term of this Lease, the Leased Premises, or
such a substantial portion of the Leased Premises as shall prevent Lessee from
conducting its normal business, shall be taken by proper authority for public or
quasi-public use, then Lessee may terminate this Lease by giving Lessor written
notice of termination within thirty (30) days after receipt of notice of the
taking, and Lessee's obligation to pay rent, taxes, and other charges shall
terminate as of the date of the termination notice. If only a part of the Leased
Premises is taken and the part not taken shall be reasonably sufficient for the
purpose of conducting Lessee's normal business, this Lease shall remain in full
force and effect, except that the Rent and Additional Rent shall be
proportionately reduced.
(b) All compensation awarded for any taking shall belong to and
be the property of Lessor. Nothing contained herein, however, shall be construed
to preclude Lessee from prosecuting any claim directly against the condemning
authority for loss of business or depreciation, damage or cost of removal of
personal property belonging to Lessee so long as the claim does not diminish or
otherwise adversely affect Lessor's award or the award otherwise payable to
Lessor's mortgagee.
15. CONDITION OF LEASED PREMISES; MAINTENANCE AND REPAIR
----------------------------------------------------
(a) Except for the repairs that Lessor is specifically obligated
to make under Paragraph 15(b) hereof, and except for repairs covered by
contractor warranties held by Lessor for Lessor's benefit, during the term of
this Lease, Lessee, at Lessee's sole cost and expense, shall promptly make all
repairs, perform all maintenance, perform all custodial services and make all
replacements in and to the Lease Premises that are necessary in order to keep
the Leased Premises in good order and repair and in a safe and tenantable
condition. Without limiting the generality of the foregoing, Lessee, at its sole
cost and expense, is specifically required to make promptly all repairs to (i)
any pipes, water and waste lines, ducts, wires or conduits beneath or in the
Leased Premises or within the ceiling of the Leased Premises; (ii) any glass
windows included within the Leased Premises; (iii) Leasee's sign(s); (iv) any
electrical, natural gas (if any), heating, ventilating and air conditioning,
plumbing, and other systems, equipment, fixtures and items installed in or
servicing the Leased Premises; (v) the floors, ceilings and walls of the Leased
Premises; (vi) the entrance and exit and auxiliary driveways, if any, which are
part of and service the Leased Premises; and (vii) any portion of the Leased
Premises damaged by Lessee's use or occupancy of the Leased Premises or by any
act, omission or negligence of Lessee, or any of its respective employees,
agents, invitees, licensees or contractors. All repairs, and replacements made
by Lessee shall utilize materials and equipment which are at least equal in
quality and usefulness to those originally used in the Leased Premises. Lessee,
at Lessee's expense, shall enter into one (1) or more service contracts for the
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maintenance of the heating, ventilating and air conditioning systems and
equipment. Lessee shall keep the Leased Premises free of all insects, rodents,
vermin and pests of every type and kind. Lessee shall also, promptly and at its
own expense, keep any sidewalks and curbs adjacent to the Leased Premises clean
and free from snow, ice, dirt and rubbish. Lessee shall not (directly or by
sufferance) place any equipment, materials or debris on the roof of the Leased
Premises, or cut, drive nails into or otherwise mutilate such roof.
(b) Lessor shall within thirty (30) days (or such longer period
of time as may reasonably be required by Lessor) after written notice from
Lessee with respect thereto, make necessary structural repairs to the exterior
walls and shall keep in good order, condition and repair the exterior
foundations, downspouts, gutters and roof of the Leased Premises and the portion
of the plumbing and sewage system located outside the building in which the
Leased Premises are located (it being understood and agreed that Landlord's
obligations exclude the exterior and interior of all windows, doors, plate glass
and signs, and repairs required by any casualty except as otherwise covered by
Paragraph 13 herein). Lessee shall, upon demand, reimburse Lessor for reasonable
costs of making any such repairs or replacements caused by Lessee's use or
occupancy of the Leased Premises or by any act, omission or negligence of
Lessee, any subtenant or concessionaire of Lessee, or their respective
employees, agents, invitees, licensees or contractors (excluding repairs or
replacements caused by Lessee's normal use).
(c) Lessee hereby covenants to contain all garbage, rubbish,
waste, trash and debris generated in conjunction with its use of the Leased
Premises in containers provided by Lessor (which shall be emptied no more than
three times per week, but at least once a week) so as not to constitute a safety
or fire hazard.
16. ALTERATIONS
-----------
Lessee shall not make any non-structural interior alterations,
additions or improvements in or to the Leased Premises without the prior written
consent of Lessor in each instance, which consent shall not be unreasonably
withheld or delayed. Lessee shall not take any structural or exterior
alterations, additions or improvements to the Leased Premises without the prior
written consent of Lessor. Should Lessor fail to respond within fifteen (15)
working days after Lessor's receipt of any written request from Lessee for
Lessor's consent to any proposed alterations, additions or improvements,
Lessor's consent shall be deemed to have been granted. All permitted
alterations, additions and improvements made by Lessee shall be performed (i) in
a good and workmanlike manner, (ii) in accordance with all applicable legal and
insurance requirements, (iii) only after receipt by Lessee and presentation to
Lessor of all necessary permits and licenses, and (iv) at Lessee's sole expense.
Except for Lessee's removable trade fixtures, and all improvement made by Tenant
in the processing and storage areas, all improvements, repairs, alterations and
additions and all other non-trade fixtures, whether installed before or after
the execution of this Lease, shall remain upon the Leased Premises at the
expiration or sooner termination of this Lease and become the property of Lessor
without payment therefor by Lessor, unless prior to the termination of this
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Lease, Lessor shall have given written notice to Lessee to remove the same, in
which event Lessee, at its expense, will remove such alterations, improvements,
additions and/or fixtures and repair and restore any and all damage to the
Leased Premises caused by the installation and/or removal thereof.
17. SIGNS
-----
Lessee may not install any sign without Lessor's prior written
consent. All signs shall be in strict compliance with the sign criteria set
forth in Exhibit "C" attached hereto and made part hereof. Lessee shall install
all exterior signs for the Leased Premises at the cost and expense of Lessee. No
sign, advertisement or notice shall be inscribed, painted, affixed or otherwise
displayed on any part of the outside or the inside of the Leased Premises or the
building of which the Leased Premises are a part, unless Lessor shall have
approved the sign, advertisement, or notice in writing prior to installation of
the same. If any sign, advertisement, or notice is exhibited by Lessee without
having first obtained Lessor's approval thereof, Lessor shall have the right to
remove the same and Lessee shall be liable for any and all expenses incurred by
Lessor in said removal. No signs made of paper and visible from outside of the
Leased Premises shall be allowed in the Leased Premises. No mobile sign, such as
may be affixed to the side of a truck or a trailer or a mobile platform shall be
permitted in the parking area.
18. LAWS AND INSURANCE STANDARDS
----------------------------
Lessee shall, at Lessee's sole expense, promptly comply in every
respect with all applicable laws, ordinances, rules and regulations of all
federal, state, county, and municipal governments now in force or that may be
enacted in the future, all applicable and enforceable directions, rules and
regulations of the fire ▇▇▇▇▇▇▇▇, health officer, building inspector or other
proper officers of any governmental agency having jurisdiction, and the
applicable standards established from time to time by the National Board of Fire
Underwriters, the National Fire Protective Association, or any similar bodies.
Lessee expressly covenants and agrees to indemnify and save Lessor harmless from
any penalties, damages or charges imposed for any violation of the foregoing.
Notwithstanding the foregoing, Lessee shall not be required to make any changes
or modifications to the Leased Premises, unless (a) the same are required due to
Lessee's specific use and/or occupancy of the Leased Premises, (b) the same are
required due to structural specifications (beyond building standard) required by
Lessee, or (c) the same relate to repairs, maintenance or other responsibilities
of Lessee under this Lease, e.g., Paragraph 15(a) hereof.
19. MECHANIC'S LIENS
----------------
Lessee shall do all things necessary to prevent the filing of any
mechanics' or other liens against the Leased Premises, or the land the building
of which the Leased Premises are part, by reason of work, labor, services or
materials supplied or claimed to have been supplied to Lessee or anyone holding
the Leased premises, through or under Lessee. If any lien shall at any time be
filed, Lessee shall either cause the lien to be discharged of record within ten
-45-
(10) days after knowledge of its filing or, if Lessee in its discretion and good
faith determines that the lien should be contested, shall furnish such security
as may be necessary to prevent the filing of any foreclosure proceedings during
the pendency of the contest. If Lessee shall fail to discharge any lien within
such period or fail to furnish such security, then, in addition to any other
right or remedy, Lessor may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
lien by deposit in court or by giving security or in such other manner as is or
may be prescribed by law. Lessee shall repay to Lessor on demand all sums
disbursed or deposited by Lessor pursuant to the foregoing provisions, including
the expenses and reasonable attorneys' fees incurred by Lessor. Nothing
contained in this Lease shall imply that Lessee has any authority or consent
from Lessor to subject Lessor's estate to any mechanics', materialman's or other
lien.
20. ASSIGNMENT AND SUBLETTING
-------------------------
(a) Lessee shall not assign, mortgage or encumber any interest in
this Lease or sublet all or any part of the Leased Premises without the prior
written consent of Lessor. Lessor shall not unreasonably withhold or delay its
consent to an assignment or subletting of this Lease.
(b) No permitted assignment or subletting shall release,
discharge or affect the liabilities of Lessee as provided for in this Lease, and
Lessee shall at all times remain primarily liable under this Lease. An
assignment by operation of law shall be deemed a prohibited assignment under
this Paragraph.
21. INSOLVENCY
----------
Lessor may, at its option, declare this Lessee terminated and
reenter and resume possession of the Leased Premises, if Lessee shall be
adjudicated a bankrupt or insolvent, or if a receiver or trustee shall be
appointed for Lessee's business or property, or if Lessee shall file a petition
in bankruptcy or insolvency, or if a petition or other proceeding shall be filed
by or against Lessee seeking corporate or other reorganization, liquidation or
other similar relief or if Lessee shall make an assignment or an arrangement for
the benefit of creditors, or if an involuntary petition shall be filed against
Lessee in bankruptcy or insolvency and such petition shall not be dismissed
within sixty (60) days.
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22. REMEDIES CUMULATIVE
-------------------
The various rights, elections and remedies of Lessor contained in
this Lease shall be cumulative, and no one of them shall be construed as
exclusive of any of the others, or of any right, priority or remedy allowed or
provided for by law.
23. WAIVER OR DEFAULT
-----------------
The waiver by either party of any default in the performance by
the other of any covenant shall not be construed to be a waiver of any preceding
or subsequent default of the same or any other covenant contained herein. The
subsequent acceptance of Rent or other sums by Lessor shall not be deemed a
waiver of any preceding default other than the failure of Lessee to pay the
particular rental or other sum so accepted.
24. HOLDING OVER
------------
If Lessee shall hold possession of the Leased Premises after the
end of the term or other termination of this Lease, Leases shall be deemed to be
occupying the Leased Premises as a tenant from month to month, subject to all of
the conditions, provisions and obligations of this Lease; provided, however,
Lessee shall be liable for any and all damages and expense that Lessor may
sustain by virtue of Lessee's holding over, including, but not limited to, any
amount for which Lessor may be liable under, or as a result of, any other lease
entered into by Lessor for a term beginning at or after the expiration of the
term of this Lease. Nothing contained in this Lease shall be construed as a
consent by Lessor to the occupancy or possession of the Leased Premises by
Lessee after the expiration of the term of this Lease. Rather, at the end of the
term of the Lease, Lessor shall be entitled to the benefit of all laws or
ordinances relating to the recovery of the possession of lands and tenements
held over by tenants that now may be in force or hereafter may be enacted, and
Lessor may proceed under such laws or ordinances, without notice to Lessee, all
statutory notice requirements being expressly waived by Lessee.
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25. SURRENDER
---------
Upon the expiration of the term of this Lease, Lessee immediately
shall surrender the Leased Premises broom-clean and in good order and condition,
ordinary wear and tear excepted. All of Lessee's personal property at or about
the Leased Premises (but not permanently affixed parts of the Leased Premises)
shall be removed by Lessee at or before the expiration of this Lease or shall be
deemed abandoned by Lessee. Any damage to the Leased Premises caused by such
removal shall be repaired by Lessee at its own expense.
26. DEFAULT
-------
(a) If Lessee fails to pay any Rent or Additional Rent when due
and such failure continues for a period of five (5) days after Lessor shall have
made written demand on Lessee for payment, or if Lessee otherwise is at any time
in default under this Lease and continues in such default for a period of thirty
(30) days after Lessor shall have demanded in writing to Lessee that such
default be cured, or if such latter default is not capable of being cured within
a fifteen (15) day period, such additional time (not to exceed forty-five (45)
days) as is reasonably necessary to cure such default, provided Lessee promptly
commences and diligently pursues to cure such default, then Lessor may, at
Lessor's option, terminate this Lease (without releasing Lessee of liability)
and by summary proceedings or other manner prescribed by law, reenter and take
possession of the Leased Premises. If Lessor should so terminate this Lease,
Lessee shall pay to Lessor as damages, upon demand, all expenses (including,
without limitation, attorneys' fees) of any proceedings necessary in order for
Lessor to recover possession of the Leased Premises and the expenses of
reletting the Leased Premises (including, without limitation, reasonable
attorneys' fees, brokerage commissions, and the costs of putting the Leaded
Premises in good order and preparing it for reletting, plus either:
(i) Liquidated damages in an amount equal to the excess, if
any, of the Rent and Additional Rent that would have been payable over the
unexpired portion of the term of this Lease over the rental value of the Leased
Premises for such unexpired portion of the term of this Lease, as discounted at
the then publicly declared prime rate of the Federal Bank in Baltimore,
Maryland; or
(ii) Damages in an amount to the excess, if any, of the
monthly Rent and Additional Rent over the monthly rentals, if any, if fact
collected by Lessor as the result of a reletting of the Leased Premises at such
rent and upon such terms as Lessor, in its sole discretion, elects to accept.
Separate actions may be maintained each month by Lessor to recover the damages
then due as provided for in this subparagraph (ii) and any such action shall not
prejudice the rights of Lessor to collect damages for any subsequent month in a
similar proceeding.
(b) No re-entry or reletting of the Leased Premises, whether or
not the term of such reletting extends beyond the term of this Lease, shall be
construed as an election by Lessor to: (i) accept a surrender of the Leased
Premises, or (ii) release Lessee of any of its obligations under this Lease.
-48-
(c) Should Lessor, pursuant to its rights under Paragraph 26(a)
hereof, elect to terminate this Lease and reenter and take possession of the
Leased Premises, Lessor shall use commercially reasonable efforts, under then
prevailing circumstances, to relet the Leased Premises.
27. ACCESS TO LEASED PREMISES
-------------------------
(a) Lessor and its designees shall have the right (subject to
being accompanied by Lessee's representative at all times for security reasons)
to enter upon the Leased Premises at all reasonable hours, after 24 hours
notice, (and in emergencies, at all times): (i) to inspect the same; (ii) to
make repairs, additions, or alterations to the Leased Premises or the building
in which the same are located or any property owned or controlled by Landlord;
(iii) to exhibit the Leased Premises to any prospective buyer, lessee or
mortgagee or their respective agents or representatives; and (iv) for any lawful
purpose.
(b) For a period commencing three (3) months prior to the end of
the term, Lessor may have reasonable access to the Premises for the purpose of
exhibiting the same to prospective tenants and to post any "For Rent" or "For
Lease" signs upon the Leased Premises.
28. SUBORDINATION AND ATTORNMENT
----------------------------
(a) This Lease is subject and subordinate to the lien of all
present and future mortgages and/or deeds of trust encumbering the Leased
Premises, all present and future advances under such mortgages and/or deeds of
trust, and all renewals, extensions, modifications, recastings or refinancings
of such mortgages and/or deeds of trust. Lessee agrees that, in the event any
proceedings are brought under or for the foreclosure of any such mortgage and/or
deed of trust, Lessee shall, if requested to do so by the beneficiary under or
holder of such mortgage and/or deed of trust or by any successor in interest to
such beneficiary or holder, automatically become the lessee of such beneficiary,
holder or successor in interest and shall automatically attorn to such
beneficiary, holder and/or successor in interest and recognize such beneficiary,
holder and/or successor in interest as the Lessor under this Lease. In
confirmation of such attornment, however, Lessee shall, at the request of Lessor
or any beneficiary, holder or successor in interest, promptly execute any
requisite or appropriate certificate or other document for the benefit of such
beneficiary, holder and/or successor in interest.
(b) In the event that, after the date of this Lease, a bona fide
loan shall be made by an insurance company, savings bank, commercial bank, trust
company, or other lender and secured by a mortgage or deed of trust constituting
-49-
a lien against any portion of the Leased Premises and said lender shall
complete, execute and acknowledge a subordination, attornment, and
non-disturbance agreement, then and in that event, Lessee shall subordinate this
Lease to said mortgage or deed of trust by executing and acknowledging the said
subordination, attornment and non-disturbance agreement.
(c) Upon any assignment or termination of Lessor's interest in
the Leased Premises, Lessee shall, upon request, attorn in writing to the new
owner of the Leased Premises and shall pay to the new owner all rents and other
monies required to be paid and perform all of the other obligations of Lessee
under this Lease. Following any sale by Lessor of the property of which the
Leased Premises are a part, all obligations to the assigning Lessor to Lessee
shall cease and terminate and Lessee shall look solely to the successor for the
performance of Lessor's duties hereunder.
(d) Notwithstanding the foregoing, this Lease shall not be
terminated so long as Lessee is not in default of any provisions in this Lease.
(e) Lessor shall, within fifteen (15) days after the date hereof
(or prior to the effective date of any encumbrance mentioned in this Section 28
created after the date hereof) obtain from the holder of any such encumbrance,
an agreement whereby if such holder or any successor in interest shall come into
possession of the Leased Premises, or any part thereof, by dispossession,
foreclosure or otherwise, or shall become the owner of such property, or take
over the rights of Lessor to such property, said holder shall not disturb the
possession, use or enjoyment of the Leased Premises by Lessee, its successors or
assigns, nor disaffirm this Lease or Lessee's rights or estate granted
hereunder, so long as Lessee performs all of its obligations in accordance with
the terms of this Lease.
29. RIGHT TO CURE DEFAULTS
----------------------
(a) If Lessee shall fail to comply fully with any of its
obligations under this Lease, then, in addition to Lessor's other rights, but
not the duty, to cure such breach at Lessee's expense. Lessee agrees to
reimburse Lessor, within fifteen (15) days after Lessor submits a statement of
the amount due, as Additional Rent, for all expenses incurred by Lessor as a
result of any efforts made by Lessor to cure any such breach.
(b) If Lessor shall fail to comply fully with any of its
obligations under this Lease, then, in addition to Lessee's other rights and
remedies under this Lease at law and in equity, Lessee shall have the right, but
not the duty, to cure such breach at Lessor's expense; provided that prior to
the exercise of such right to cure, Lessee shall give Lessor written notice
-50-
specifying the nature of the breach and Lessor shall be entitled to ten (10)
days after receipt of such notice within which to cure said breach or such
additional time as may be necessary if such breach is not susceptible to cure
within said ten (10) days, in which case Lessor shall commence to cure within
said ten (10) day period. Lessor agrees to reimburse Lessee, within fifteen (15)
days after Lessee submits a statement of the amount due, for all expenses
incurred by Lessee as a result of any efforts by Lessee to cure any such breach.
If Lessor fails to reimburse Lessee as aforesaid, Lessee may offset the amount
due against the payments of Rent becoming due hereunder unless Lessor give
written notice of dispute within said fifteen (15) day period either to the
existence of any default or the reasonableness of the amount expended to cure.
In the event such notice of dispute is given, the provisions of subparagraph (c)
shall govern. The right to setoff against Rent shall be subordinate to and there
shall be no setoff against the holder of any mortgages or deed of trust or any
purchaser at foreclosure or deed in lieu thereof on all or any portion of the
Leased Premises. The amount of all setoffs shall be limited to the cumulative
sum of One Hundred Thousand Dollars ($100,000.00).
(c) If Lessor has given notice of dispute as provided in
subparagraph (b), Lessee may have the issues of whether the Lessor is in default
of its obligations or the reasonableness of the amount of expenditures
determined by arbitration. Pending the results of such arbitration, there shall
be no setoff. In the event the arbitrators determine that Lessor was in default,
Lessor shall pay all costs of arbitration and Lessee shall have the right to
offset all of its costs and expenses of remedying such default (including
unreimbursed costs of the arbitration proceeding) against the payments of Rent
becoming due hereunder, subject to the limitations set forth in subparagraph (b)
above. If the arbitrators determine that Lessor was not in default, then Lessee
will pay all of the arbitration.
(d) If Lessor is determined to be in default in its obligations
under Paragraph 15(c) of this Lease and Lessee shall remedy such default in
accordance with the preceding paragraph, Lessee shall be entitled to offset one
hundred fifteen percent (115%) of the costs and expenses of remedying such
default, with the additional fifteen percent (15%) being to reimburse Lessee for
its overhead.
30. BROKERAGE
---------
Lessor hereby acknowledges that ▇▇▇▇▇▇▇▇▇▇ Realty ("Broker") has
served as Lessor's agent in connection with this Lease and agrees to pay said
Broker a commission as per a separate agreement between Lessor and Broker.
-51-
Lessor warrants to Lessee and Lessee warrants to Lessor that it has not dealt
with any other broker or real estate agent or finder in connection with this
Lease and that, except for the aforesaid commission payable to Broker, no right
or claim for commission or other compensation has been created by its actions
with respect to this Lease. Lessor and Lessee shall indemnify and hold each
other harmless against all loss, liability or expense, including reasonable
attorney's fees and litigation costs, incurred by the other to the extent one or
the other is shown to be in breach of the foregoing warranties.
31. EFFECT OF CONVEYANCE
--------------------
If during the term of this Lease Lessor sells its interest in the
Leased Premises or this Lease, then from and after the effective date of such
sale, Lessor shall be released and discharged from any and all further
obligations and responsibilities under this Lease except those already accrued.
Any such sale shall be subject to this Lease and Lessor shall require any
purchaser to acknowledge the existence of Lessee's tenancy.
32. INTERPRETATION
--------------
The captions by which the paragraphs of this Lease are identified
are for convenience only and shall have no effect upon the interpretation of
this Lease. Whenever the context so requires, the singular number shall include
the plural, and plural shall refer to the singular and the neuter gender shall
include the masculine and feminine genders. If any provision of this Lease shall
be held to be unenforceable by a court, the remaining provisions shall remain in
effect and shall in no way be impaired.
33. ENTIRE INSTRUMENT
-----------------
All of the agreements previously and contemporaneously made by the
parties are contained in this Lease, and this Lease cannot be modified in any
respect except by a writing executed by Lessor and Lessee.
34. ESTOPPEL CERTIFICATES
---------------------
Recognizing that both parties may find it necessary to establish
to third parties, such as accountants, banks, mortgagees or the like, the then
current status of performance hereunder, either party, on the written request of
one to the other made from time to time, will promptly furnish a written
certificate on the status of any matter pertaining to this Lease in such form
and substances as may from time to time be reasonably required.
-52-
35. NOTICES
-------
Any notices and other communications required or permitted to be
given by either party to the other shall be in writing and shall be deemed to
have been served when hand delivered or, if the United States Mail is used, on
the second business day after the notice is deposited in the United States Mail,
postage prepaid, registered or certified mail, or by overnight delivery service,
and addressed to the parties as follows:
To Lessee: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Lessor: Muirkirk Manor Associates Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Either party, by written notice to the other, may change its address to which
notices are to be sent.
36. WAIVER
------
Any waiver of either Lessor or Lessee of any default, breach or
failure by the other to comply with any term, condition, or provision of this
Lease shall not constitute a waiver of any other default, breach or failure by
such defaulting party. No covenant, term or condition of this Lease shall be
deemed to have been waived by either party unless such waiver be in writing and
signed by the party to be charged therewith.
37. QUIET ENJOYMENT
---------------
So long as Lessee is not in default beyond applicable grace
periods, Lessee shall have peaceful and quiet use and possession of the Leased
Premises without hindrance on the part of Lessor or any person claiming by,
through or under Lessor.
38. RECORDING THIS LEASE
--------------------
Lessee may not record either this Lease nor a memorandum thereof
among or in any public records without Lessor's prior written consent.
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39. GOVERNING LAW
-------------
All questions with respect to construction of this Lease and the
rights and liabilities of the parties shall be determined in accordance with the
laws of the State of Maryland.
40. BENEFIT
-------
Subject to the restrictions on assignment and subletting set forth
in Paragraph 20, the covenants, terms and conditions of this Lease shall inure
to the benefit of and be binding upon Lessor and Lessee and their respective
successors and assigns.
41. REASONABLE CONSENT
------------------
Wherever in this Lease Lessor or Lessee is required to obtain the
consent or approval of the other, it is agreed that such consent or approval
shall not be unreasonably withheld or delayed.
42. TIME OF ESSENCE
---------------
Time is of the essence in the performance of all of Lessor and
Lessee's obligations under this Lease.
(See Lease Addendum for Paragraphs 43 and 44)
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IN WITNESS WHEREOF, the parties have executed this Lease on the day and
year first above written.
WITNESS: LESSOR:
MUIRKIRK MANOR ASSOCIATES
LIMITED PARTNERSHIP,
a Maryland limited partnership
By: THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------- -------------------
WITNESS: LESSEE:
BIO SCIENCE CONTRACT PRODUCTION CORP.
a Maryland corporation
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
------------------- -------------------------------
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EXHIBIT "B" (PART II)
LEASE ADDENDUM
--------------
(PARK PLACE)
THIS LEASE ADDENDUM made as of the 12 day of November, 1991, is
attached to and made part of that certain Lease of even date herewith (the
"Lease") by and between MUIRKIRK MANOR ASSOCIATES LIMITED PARTNERSHIP, a
Maryland limited partnership ("Lessor"), and Bio Science Contract Production
Corp., a Maryland corporation ("Lessee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Lessor and Lessee have agreed to amend, supplement and/or
modify the Lease as herein provided, Landlord and Tenant hereby agree as
follows:
2. TERM - OPTION
-------------
Lessee, at its option, shall have the right to extend the Term of this
Lease on the same terms and conditions, as the original term thereof, except as
otherwise provided in this Addendum with respect to the amount of Base Rent due
during the respective extension period, for Two (2) additional consecutive term
of Five (5) years (the "Extension Period"), subject to the satisfaction of the
following conditions:
(i) Lessee's option to extend the Lease for the Extension Period shall
be exercisable only by written notice to Lessor at least ninety (90) days prior
to the commencement date of the Extension Period. If Lessee does not give Lessor
written notice as aforesaid, Lessee shall be deemed to have not exercised its
respective extension option.
(ii) At the time of exercise of the option and at the commencement of
the Extension Period, Lessee shall not be in default under the Lease beyond any
applicable grace period.
(iii) Upon exercising the option, the Base Rent will be the product
obtained by multiplying the Base Rent for the immediately preceding Lease Year
by one hundred four percent (104%).
-56-
LESSEE IMPROVEMENTS
-------------------
(a) Lessor has agreed to construct and complete the installation
of lessee improvements, as set forth in Exhibit "B" to the Lease, within a
budget of one hundred and twenty thousand and 00/100 ($120,000.00) toward the
improvements requested by the lessee and it is agreed that the demising wall and
.60 per S.F. for design is part of the above allowance. It is agreed that all
plans, specifications, the General Contractor and its sub contractors, as well
as their work schedule, will be approved by the lessor or its Architect.
Payments to the General Contractor will be made in accordance with the schedule
and method established by the lessor and its lender.
(b) In the event that the cost of constructing and installing the
lessee improvements to the Leased Premises exceeds the $120,000.00, lessee shall
pay directly to the General Contractor the difference between the cost and the
allowance.
(c) It is further agreed that the Lessee accepts Suite 280
(formerly occupied by Homes Oil) in as is condition and the above allowance in
(a) will be used for improvements, if any, in that suite.
IN WITNESS WHEREOF, the parties have executed this Lease Addendum on
the day and year first above written.
ATTEST: LESSOR:
MUIRKIRK MANOR ASSOCIATES LIMITED
PARTNERSHIP,
A Maryland limited partnership
By: THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP, INC.,
its general partner
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------- -------------------
LESSEE:
BIO SCIENCE CONTRACT PRODUCTION CORP.
a MARYLAND corporation
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
------------------- -------------------------------
-57-
EXHIBIT "C"
THIRD LEASE
-----------
LEASE
-----
(PARK PLACE)
THIS LEASE, made as of this 20th day of March, 1992, by and between
MUIRKIRK MANOR ASSOCIATES LIMITED PARTNERSHIP, a Maryland Limited partnership
("Lessor"), and BIO SCIENCE CONTRACT PRODUCTION CORP., a Maryland corporation
("Lessee").
W I T N E S S E T H:
- - - - - - - - - -
That in consideration of the rent and mutual covenants and agreements
contained herein, and intending to be legally bound hereby, Lessor and Lessee
agree as follows:
1. DEMISED PREMISES
----------------
The Lessor leases to the Lessee all of that certain space
described as Suite ▇▇. ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, containing approximately
8,100 square feet of gross leasable area, as is outlined in red on the plat
attached to and made a part of this Lease as Exhibit "A" (the "Leased
Premises"), and located in Park Place, Prince George's County, Maryland. Lessor
shall construct and complete the Leased Premises in compliance with the plans
and specifications set forth in Exhibit "B" attached hereto and made part
hereof. "Delivery of Possession" of the Leased Premises by Lessor to Lessee
shall be deemed to have been made when Lessor's architect certifies in writing
that construction of the Leased Premises shall have been completed.
2. TERM
----
The term (the "Term") of this Lease shall be for a term of Eight
(8) years, eleven (11) months, commencing on the 1sT day of April, 1992, (the
"Commencement Date") and shall expire on the last day of February, 2001. If the
Term of the Lease does not begin on the date specified herein for reasons other
than the fault of Lessee, then the expiration date shall be moved for the
commensurate amount of the delay and the rent shall be prorated accordingly. If
the term commences or ends in mid-month, the rent payable for that month
(including, without limitation, Additional Rent) shall be prorated and paid on
the date of commencement or termination.
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3. RENT
----
(a) The rent (the "Base Rent") shall be:
Year Square Foot Rate
---- ----------------
1 $ 9.50
2 $ 9.53
3 $ 10.18
4 $ 10.53
5 $ 10.90
6 $ 11.28
7 $ 11.68
8 $ 12.09
9 $ 12.51
The term "Lease Year" shall mean each twelve (12) month period during the term
of this Lease commencing on the Commencement Date. The Base Rent shall be
payable, in advance, in equal monthly installments, the first monthly
installment to be due and payable on the Commencement Date and each subsequent
monthly installment to be due and payable on the first day of each and every
month thereafter during the term of this Lease.
(b) All moneys payable by Lessee under the terms of this Lease,
other than Base Rent, as adjusted from time to time, shall be deemed "Additional
Rent."
(c) Lessee shall make all payments of Base Rent and Additional
Rent on a timely basis, without demand and without deduction, setoff or
counterclaim, except as expressly permitted in Paragraph 29(b) hereof. All
payments of Rent and Additional Rent shall be made by good and valid check,
payable to The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Group, Inc., agent, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other party or to such other
address as Lessor may designate from time to time by written notice to Lessee.
If Lessor shall at any time or times accept Base Rent or Additional Rent after
it shall become due and payable, such acceptance shall not excuse delay upon
subsequent occasions, or constitute, or be construed as, a waive of any or all
of Lessor's rights hereunder. If any payment of Base Rent or Additional Rent is
not made within ten (10) days of when due, a late charge of five percent (5%) of
the amount of such payment shall be imposed, Lessor shall be entitled to require
the payment of Base Rent and Additional Rent by certified check if the check for
any payment by Lessee shall be dishonored by its Bank.
(d) Except for the obligations of Lessor expressly set forth
herein, this Lease is a "net lease" and Lessor shall receive the Base Rent
hereinabove provided as net income from the Leased Premises, not diminished by
any imposition of any expenses or charges required to be paid to maintain and
carry the Leased Premises or to continue the ownership of Lessor, other than
payments under any mortgages now existing or hereafter created by Lessor, and
Lessor is not and shall not be required to render any services of any kind to
Lessee.
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4. SECURITY DEPOSIT
----------------
(a) Lessee has, simultaneously with the execution of this Lease,
deposited with Lessor, in cash or by check subject to collection, the sum of
eight thousand ($8,000.00). Said deposit shall be held as security for the
faithful performance by Lessee of the terms, covenants, provisions and
conditions of this Lease. It is agreed that in the event Lessee defaults in
respect to any of the terms, covenants, provisions and conditions of this Lease,
including (but not limited to) the payment of Base Rent or Additional Rent, and
fails to cure any such defaults within applicable grace periods, Lessor may use,
apply or appropriate the whole or any part of the security so deposited to the
extent required for the payment of any Base Rent or Additional Rent or for the
curing of any defaults by Lessee hereunder pursuant to Paragraph 29 hereof;
provided, however, that no such use, application, or appropriation of the
deposit shall be deemed to relieve Lessee of any breach of this Lease and shall
be in addition to other remedies under this Lease.
(b) Should the entire deposit or any portion thereof be
appropriated and applied by Lessor under the foregoing provisions, then Lessee
shall (upon the written demand of Lessor) forthwith remit to Lessor a sufficient
amount in cash to restore said security to the original sum deposited, and
Lessee's failure to do so within ten (10) days after receipt of such demand
shall itself constitute an event of default under this Lease.
(c) The security deposit (less any amounts applied as provided in
subsection (a) above) shall be returned to Lessee within thirty (30) days after
the date fixed as the end of the Term of this Lease and delivery of entire
possession of the Leased Premises to Lessor.
(d) In the event of a sale, leasing or other transfer of the land
and building of which the Leased Premises forms a part, Lessor shall have the
right to transfer the security and be released by Lessee from all liability for
the return of such security deposit. Lessee shall look to the new Lessor solely
for the return of said deposit. The provisions of this Paragraph 4(d) shall
apply to every transfer or assignment made of the security deposit to a new
Lessor.
(e) Lessee covenants that it will not assign or encumber or
attempt to assign to encumber the security deposited herein and that neither
Lessor nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
(f) Lessee shall not be entitled to any interest on the security
deposit, and such funds need not be segregated or held as escrow by Lessor.
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(g) It is expressly understood and agreed that, in the event of
any termination of this Lease or re-entry upon or reletting of the Leased
Premises on account of any default on the part of Lessee under this Lease, then,
and in such event, the deposit shall be retained and be subject to appropriation
by Lessor until this Lease would, by its terms, have expired absent such
default.
5. USE
---
Lessee will use and occupy the Leased Premises solely for the
purpose of Offices and operation of a vaccine research and production facility.
The Leased Premises may not be used for any other purpose without the prior
written consent of Lessor, which consent shall not be unreasonably withheld. The
Leased Premises shall not be used for the storage, distribution or sale of any
pornographic or "adult rated" materials. Lessee shall not use the Leased
Premises for any purpose or activity which is noxious or unreasonably offensive
because of the emission of noise, smoke, dust, vibration or odors. Tenant shall
not use the plumbing facilities for any purpose injurious to same or dispose of
any garbage or any other foreign substance therein, nor place a load on any
floor in the Leased Premises exceeding the floor load of 250 per square foot
which such floor was designed to carry, nor install, operate and/or maintain in
the Leased Premises and heavy equipment which could cause injury to the Lease
Premises, nor install, operate and/or maintain in the Leased Premises any
electrical equipment which will overload the electrical system therein, or any
part hereof, beyond its capacity for proper and safe operation as determined by
the Lessor or which does not bear underwriter's approval. Lessee shall not use
the Leased Premises in any manner or for any purpose which violates any rule,
regulation, law, ordinance, or requirements of any governmental agency.
6. TAXES
-----
(a) As additional rent hereunder, at least thirty (30) days
before any fine, penalty or interest or cost may be added thereto for the
non-payment thereof (or sooner if elsewhere herein required), Lessee shall pay
throughout the term of this Lease all levies, taxes, assessments, water and
sewer rents and charges, liens, charges for public utilities and all other
charges, imposts or burdens of whatsoever kind and nature which at any time
during the term of this Lease may be assessed or imposed by any federal, state
or municipal government or public authority, or under any law, ordinance
regulation thereof or pursuant to any recorded covenants or agreements (all of
which are hereinafter referred to as "Impositions"), upon or with respect to the
Leased Premises, any improvements made thereto, or this Lease. Additionally,
Lessee shall pay a proportionate share of any Imposition which is not imposed
upon the Leased Premises as a separate entity but which is imposed upon the land
or the building or upon the appurtenances, leases, rents, transactions or
documents relating to the lot or the building. Provided, however, that any
Imposition shall be apportioned for the first and last fiscal tax years covered
by the term hereof. "Impositions" shall include, but not be limited to, any and
all governmental or quasi-governmental levies, fees, assessments, taxes and
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind and nature whatsoever, with respect to such land and
building (excluding taxes paid on Lessor's income but including sales tax or
excise tax imposed by any governmental authority upon the Base Rent payable by
Lessee hereunder).
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(b) Notwithstanding the foregoing provisions of this Article 6,
Lessor shall have the right, at its option, to require Lessee to pay to Lessor
or to any mortgagee, at the time when the monthly installment of Base Rent is
payable, an amount equal to one-twelfth (1/12) of the annual impositions as
estimated by Lessor. If Lessor elects to have Lessee make such payments, Lessee
also shall pay to Lessor or to such mortgagee, as the case may be, at least
thirty (30) days before any fine, penalty, interest or cost may be added thereto
for the non-payment thereof, the amount by which the impositions becoming due
exceed the monthly installment payments on account thereof previously made by
Lessee. Should Lessee's monthly installment payments on account of Lessee's
share of impositions for any tax year exceed the actual amount of Lessee's share
of such impositions, the excess amount shall be credited against Lessee's
installments for impositions thereafter becoming due. The amounts paid by Lessee
pursuant to this paragraph (b) shall be used to pay the impositions, but such
amounts shall not be deemed to be trust funds and no interest shall be payable
thereon.
(c) During any part of the Term of this Lease which shall be less
than a full tax fiscal year, any Taxes shall be pro rated on a daily basis
between the parties, to the end that Lessee only shall pay its share of Taxes
attributable to the portion of the tax fiscal years occurring within the term of
this Lease.
(d) Lessee shall pay promptly, and when due, all taxes, fees,
licenses, assessments and other charges levied or imposed upon the business of
the Tenant or upon any fixtures, furnishings or equipment in the Leased
Premises.
(e) If due to a future change in the method of taxation or in the
taxing authority, a franchise, gross receipts, transit, rent or other tax or
other governmental imposition, however designated, shall be levied against
Lessor in substitution (in whole or in part) for, or in addition to, said
"Impositions" as currently defined), then such franchise, gross receipts,
transit, rent or other tax or governmental impositions shall be deemed to be
included within the definition of "Impositions" for the purposes of this Lease.
The term "Impositions" also includes all costs reasonably incurred in any
proceeding brought by Lessor to reduce said Taxes.
(f) Lessor may institute any proceedings with respect to the
assessed valuation of Park Place or any part thereof, and Lessee shall cooperate
with, and participate in, any and all such proceedings. If, after Lessee shall
have made the required payment of Taxes hereunder, Lessor shall receive a refund
of any portion thereof, then, within thirty (30) days after Lessor's receipt of
such refund, Lessor shall pay to Lessee Lessee's pro rata share of the amount of
the refund, less all costs and expenses (including, but not limited to,
attorneys' and appraiser' fees) expended for incurred in obtaining such refund.
Lessee may not institute any proceedings with respect to the assessed valuation
of Park Place or any part thereof.
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7. UTILITIES
---------
Starting with the Commencement Date and continuing throughout the
Term of the Lease, Lessee shall be solely responsible for and shall pay, as and
when the same become due and payable and as hereinafter provided, all rents,
rates, costs and charges for water services, sewer service, electricity, gas,
heat, steam, power, telephone (and other communication services), and any other
utilities or services rendered or supplied to, upon or in connection with, or
used or consumed within or in servicing, the Leased Premises, and all other
utility costs and expenses involved in the use of the Leased Premises throughout
the term of this Lease, and Lessee shall indemnify Lessor and save Lessor
harmless against any costs liability or damages on such account. Unless
otherwise agreed in writing by Lessor or Lessee, Lessee shall, promptly upon
Delivery of Possession of the Leased Premises and at Lessee's own expense, pay
for the installation of separate meters for all utilities servicing the Leased
Premises and place said meters and related utility accounts in Lessee's own
name. Lessee shall pay all separately metered charges to the respective public
utility companies. With respect to each utility which is not separately metered
for the Leased Premises, Lessee shall pay Lessor, as Additional Rent, Lessee's
proportionate share of the total cost and fees therefore attributable to those
areas of the warehouse/office buildings which are not separately metered.
8. COMMON AREA MAINTENANCE
-----------------------
(a) Subject to the provisions of this Lease, Lessor grants to
Lessee, its employees, agents, customers and invitees during the Term hereof the
non-exclusive use, in common with Lessor and other tenants and occupants of Park
Place and their respective employees, agents, customers and invitees and in
common with such others as Lessor may designate from time to time, of all
non-allocated parking areas within Park Place for pedestrian and vehicular
ingress and egress and the accommodation and parking areas within Park Place for
pedestrian and vehicular ingress and egress and the accommodation and parking
automobiles as required by the Lessee in conducting normal business activities
of Lessee within the Leased Premises. Lessor reserves the right, however, to
designate certain portions of the parking areas within Park Place for parking of
trucks, vans, and other vehicles, and to designate for the specific account of
Lessee, or other tenants in Park Place, specific parking areas or spaces
constructed with Park Place. Notwithstanding anything contained in this Lease to
the contrary, Lessor shall have the right, at any time and from time to time, to
change the size, location and nature of the parking areas (so long as the number
of parking spaces is not reduced) and/or other common areas within Park Place.
All parking areas and related facilities which may be furnished by Lessor in or
near the Leased Premises, including employee parking areas, truck way or ways,
loading docks, pedestrian sidewalks and ramps, landscaped areas, and other areas
and improvements which may be provided by Lessor for the general use, in common
with Lessor and other tenants, and their respective employees, agents, customers
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and invitees, shall at all time be subject to the exclusive control and
management of Lessor, and Lessor shall have the right, from time to time, to
establish, modify and enforce reasonable rules and regulations with respect to
all parking areas and other facilities and areas mentioned in this paragraph.
Lessee agrees to abide by and conform with all such rules and regulations upon
notice thereof and to cause its employees, agents, customers and invitees to do
the same. Lessor shall have no liability to Lessee for use of the parking areas
by Lessor or other tenants and occupants of Park Place and their respective
employees, agents, customers, or other third parties. No provision of this Lease
shall be construed as a demise to Lessee of the parking or any other common
area) within Park Place. If any repairs (excluding repairs caused by Lessee's
normal use) to the parking or other common areas within Park Place are
necessitated by reason of any act or omission by Lessee or its employees,
agents, customers or invitees, then, if Lessor chooses to do so, Lessor may make
such repairs and Lessee shall promptly upon demand reimburse Lessor for the full
costs to the extent same are not covered by Lessor's insurance, or at Lessor's
option, Lessor may notify Lessee of the necessity for such repairs, and Lessee,
at its cost and expense, shall, with due diligence, commence and complete to
Lessor's satisfaction the repairs within ten (10) days of Lessee's receipt of
such notice.
(b) "Common Area Charges" means all of the costs and expenses
which are incurred by Lessor with respect to operation, management, maintenance
and security of the building including the parking and other designated common
areas in Park Place and the exterior walls of the buildings in Park Place, and
those areas of Park Place which house mechanical, electrical or other equipment
or are otherwise determined from time to time by Lessor to be used in operating
or maintaining Park Place. "Common Area Charges" include, but are not limited
to, the cost of maintaining, repairing, and replacing and repaving (when
necessary) the parking and other designated common areas; supplies, tools and
materials purchased and/or used in connection with repairs, maintenance and/or
replacements; wages, salaries, and fringe benefits of all employees of the
Lessor for the portion of time they are directly engaged in the operation,
maintenance and security of Park Place, including license and fees (but
excluding wages, salaries and benefits of executive employees); removing snow,
ice, and debris from the roadways and parking areas for Lessee's use during
normal business hours; removal of customary and normal trash; maintaining and
repairing or repainting (when necessary) directional signs, pavement markings,
and parking lot striping; repairing and replacing (when necessary) outdoor
lighting facilities; maintaining the grass and otherwise caring for the
replanting (when necessary) all shrubbery and landscape areas; providing such
security as Lessor, in its sole discretion, deems advisable; accounting and
legal fees for common areas at Park Place; utilities, heating, ventilation and
air-conditioning charges allocable to designated common areas and other building
service areas.
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(c) Starting with the Commencement Date and continuing throughout
the Terms of this Lease, Lessee shall pay Lessor in advance as hereinafter
described and as Additional Rent, Lessee's Pro-Rata Share of all Common Area
Charges for said period. "Lessee's Pro-Rata Share" shall be a fraction, the
numerator of which shall be the floor area within the Leased Premises and the
denominator of which shall be the total floor area within all buildings in Park
Place. The Initial Lessee's Pro-Rata Share shall be 4.50%.
The Company is, and from time to time becomes, involved in various
claims and lawsuits that are incidental to its business. In the opinion of the
Company's management, there are no material legal proceedings pending against
the Company.
(d) On or before the Commencement Date, on or before the end of
each and every Lease year, and at such other time(s) as is deemed desirable by
lessor in its sole discretion, Lessor shall forward to Lessee a "Common Area
Charges Statement", which shall contain Lessor's latest estimate of the Common
Area Charges for the then current or the then upcoming (as the case may be)
Lease Year, and a statement of Lessee's Pro-Rata Share thereof. Landlord's
failure to forward, or to timely forward, any Common Area Charges Statement
shall not excuse Lessee from its liability for Lessee's Pro-Rata Share of Common
Area Charges.
(e) Each month during the Term of this Lease, along with each
monthly installment of Base Rent, beginning with the Commencement Date, Lessee
shall pay to Lessor, in advance, an amount equal to one-twelfth (1/12th) of
Lessee's Pro-Rata Share of the Common Area Charges as set forth in the then
latest Statement. If the Commencement Date is a day other than the first day of
a calendar month, then the amount of Common Area Charges due for the first month
and the last month of the Term shall be pro rated on the basis of a thirty (30)
day month. As soon as practicable near the end of each and every Lease Year, but
no later than 90 days after the end of the Lease year, Lessor shall submit to
Lessee an "Actual Common Area Charges Statement" prepared by Lessor showing that
the Common Area Charges for the then preceding Lease Year actually were. With
the next monthly installment of Base Rent due after Lessee's receipt of such
Statement, Lessee shall pay Lessor or Lessor shall credit Lessee, as the case
may be the difference between Lessee's Pro-Rata Share of the actual Common Area
Charges for said Lease Year as shown on said Statement and the total of all
Common Area Charges paid by Lessee to Lessor for said Lease Year.
9. NON-LIABILITY OF LESSOR
-----------------------
(a) Except as otherwise expressly provided in this Lease or
unless caused by the negligence or intentional misconduct of Lessor or Lessor's
employees, agents and contractors while acting within the scope of their
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employment, Lessor shall not be responsible or liable to Lessee for any loss or
damage to persons or property, or any interference or interruption of Lessee's
use of the Leased Premises, that may be occasioned by (i) water, gas, steam,
wind or the bursting, stoppage or leaking of any pipes, sewer or water lines, or
other conduits, fixtures or equipment; (ii) the interruption of any utility
services to the Leased Premises caused by the utility company; (iii) any
repairs, alterations, maintenance or additions to the Leased Premises or land
and building of which they are a part; (iv) any casualty; (v) theft or other
criminal conduct; or (vi) the acts or omissions of persons occupying any space
adjacent to the Leased Premises.
(b) No provisions of this Lease shall be deemed to confer any
rights upon any persons or entities other than the parties to this Lease,
permitted successors and assigns and mortgages.
(c) Notwithstanding anything to the contrary provided in this
Lease, it is specifically understood and agreed that there shall be absolutely
no personal liability on the part of Lessor, including partners in Lessor and
their respective successors and assigns, with respect to its performance or
observance of any of the terms, covenants and conditions of this Lease, and that
Lessee shall look solely to the equity of the Lessor in the land and building of
which the Leased Premises form a part for the satisfaction of each and every
remedy of Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed or observed by Lessor,
such exculpation of personal liability to be absolute and without any exception
whatsoever.
(d) If Lessor shall fail to comply fully with any of its
obligations under this Lease, Lessee may seek and enforce specific performance
of the Lease against Lessor and pursue such other equitable remedies as may be
available to Lessee. Notwithstanding the foregoing, the result of such action
shall be subject to the provisions of Paragraph 9(c) hereof.
10. INDEMNITY
---------
Lessee agrees to indemnify and save Lessor harmless from and
against any and all claims, demands, costs and expenses (including, but not
limited to, reasonable attorneys' fees and litigation costs) for, or in
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connection with, any accident, injury or damage whatsoever to any person or
property (i) arising directly or indirectly out of Lessee's use of occupation of
the Leased Premises, (ii) occurring in, on or about the Leased Premises or on
the sidewalks adjoining the same, or (iii) arising directly or indirectly from
any act or omission of Lessee or any of Lessee's licenses, servants, agents,
employees or contractors. The foregoing indemnity shall not apply to any such
claim or demand proximately caused by the negligence or misconduct of Lessor, or
its employees, agents and contractors while acting within the scope of their
employment.
11. LIABILITY INSURANCE
-------------------
(a) Lessee, at Lessee's sole expense, shall obtain and maintain
in effect at all times starting with the Commencement Date and continuing
throughout the term of the Lease, a policy or policies of comprehensive general
public liability insurance, insuring Lessor, Lessor's mortgagee(s) and Lessee
against any liability for injury, death or property damage occurring upon, in or
about any part of the Leased Premises or any appurtenances thereto, affording
protection to the limits of not less than One Million Dollars ($1,000,000.00)
with respect to bodily injury or death of any one person, and not less than
Three Million Dollars ($3,000,000.00) with respect to any one incident, and not
less than Five Hundred Thousand Dollars ($500,000.00) with respect to property
damage. The foregoing minimum limits may, at Lessor's option and upon thirty
(30) days' notice to Lessee, be increased from time to time to reflect inflation
or changed conditions.
(b) The insurance policy(ies) required to be procured by Lessee
under this Lease:
(i) Shall be issued by a reputable insurance company
licensed to do business in the State of Maryland and shall have such form and
content as shall be approved by Lessor.
(ii) Shall be written as primary policy coverage and not
contributing with, or in excess of, any coverage which Lessor may carry.
(iii) Shall have an endorsement thereto to the effect that no
act or omission by Lessee shall affect the obligation of the insurer to pay
Lessor the full amount of any loss sustained by Lessor and shall contain an
express waiver of any right of subrogation by the insurance company against
Lessor, its agents and employees.
(iv) Shall name Lessor as an additional named insured.
(c) On or before the Commencement Date, and at least fifteen (15)
days before the expiration date of the policy, Lessee shall deliver to Lessor a
certificate of insurance evidencing the existence and good standing of the
liability policy referred to in Paragraph 11(a), together with evidence of
payment of all premiums. The insurance required to be carried under this Lease
may be carried under a blanket policy covering the Leased Premises and other
locations of Lessee. The insurance policy required to be carried by Lessee shall
provide that such insurance policy shall not be canceled unless Lessor and
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Lessor's mortgage(s) shall have received thirty (30) days' prior written notice
of cancellation. In the event that Lessee shall, prior to the thirtieth (30th)
day before any insurance policy will lapse or terminate, fail to furnish
evidence of the coverage and pay the premium therefor for a period not exceeding
one year, and the premiums so paid by Lessor shall be payable by Lessee, on
demand, as Additional Rent.
12. HAZARD INSURANCE
----------------
(a) Starting with the Commencement Date and continuing throughout
the Term of this Lease, Lessee shall pay to Lessor, or such other party as
Lessor shall designate by written notice to Lessee, as Additional Rent, Lessee's
Pro-Rata Share, as defined in Paragraph 12(e) hereof, of the premiums and other
charges (the "Premiums") that may be incurred or contracted for or by Lessor for
fire and casualty insurance coverage for the land and buildings of which the
Leased Premises form a part, including protection from such perils as may be
insured against under a broad form extended coverage endorsement or on all risk
of physical loss policy, and further including loss of rental coverage in an
amount equal to the Rent for one (1) Lease Year. The premiums for all insurance
to be obtained by Lessor under this Paragraph 12(a) shall be reasonably
competitive with the premiums charged for similar insurance protection by
reputable insurers for comparable properties. Lessee agrees that it will not
store gasoline or other explosive, flammable or toxic material in the Leased
Premises or do anything which may cause Lessor's insurance company to void the
policy covering the Leased Premises or to increase the premium thereon, and that
Lessee will immediately conform to all rules and regulations from time to time
made or established by Lessor's insurance company or insurance rating bureau.
Lessor will do everything reasonably possible and consistent with the conduct of
Lessee's business to obtain the lowest possible rates for insurance on the
Leased Premises. If, however, the cost to Lessor of obtaining insurance on the
Leased Premises (or the building which the Leased Premises are located) is
increased due to the Lessee's occupancy thereof, and the Lessor's insurer
provides evidence that said increase is the direct cause of Lessee's occupancy,
Lessee agrees to pay, promptly upon demand, as additional rental, any such
increase.
(b) On or before the Commencement Date and before the due date of
each and every ▇▇▇▇ for the Premiums, Lessor shall forward to Lessee an
"Insurance Statement" which shall contain an estimated statement of the amount
due from Lessee from time to time as Lessee's Pro-Rata Share of the Premiums.
Lessor's failure to forward, or to timely forward, any Insurance Statement shall
not excuse Lessee from its liability for Lessee's Pro-Rata Share of the
Premiums.
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(c) Each and every month during the Term of this Lease, along
with its monthly installment of Fixed Rent, beginning on the Commencement Date,
Lessee shall pay Lessor an amount equal to one-twelfth (1/12) of Lessee's
Pro-Rata Share of the Premiums as set forth in the then latest Insurance
Statement, which shall be credited toward Lessee's Pro-Rata Share of the
Premiums when the same are due and payable. Should Lessee's monthly installment
payments on account of Lessee's Pro-Rata Share of the Premiums for the period to
which the Premiums relate exceed the actual amount of Lessee's Pro Rata Share of
such Premiums, the excess amount shall be credited against Lessee's installments
for Premiums thereafter becoming due. If the Commencement Date is other than the
first day of a period to which the Premiums relate, then the installments of the
Premiums due from the Lessee shall be pro rated on the basis of a thirty (30)
day month.
(d) Notwithstanding the provisions of Paragraph 12(c) above,
Lessor may, upon ten (10) days' written notice to Lessee, require Lessee to pay
Lessee's Pro- Rata Share of the necessary increased Premiums due to Lessee's
occupancy at such times as the Premiums are due and payable to the respective
insurance company or companies or in such manner as is required of Lessor under
any mortgage, whether such payments be in lump sum or other installments.
(e) Lessee's Pro-Rata of the Premiums shall be of all the
Premiums due for the land and building of which the Leased Premises form a part.
As used in this Paragraph 12, "Lessee's Pro Rata Share" shall be a fraction, the
numerator of which shall be the floor area within the Leased Premises and the
denominator of which shall be the total floor area within the building of which
the Leased Premises form a part.
(f) Lessor hereby releases Lessee from any liability and
responsibility to Lessor to anyone claiming through or under Lessor by way of
subrogation or otherwise, for any and all loss or damage to the Leased Premises
caused by fire or any casualty covered by insurance to the extent insurance
proceeds are received therefor, even if such fire or other casualty shall have
been caused by the fault or negligence of Lessee, or anyone for whom Lessee may
have been responsible. Lessor's insurance policies shall include appropriate
clauses (i) waiving all rights of subrogation against Lessee with respect to
losses payable under such policies, and (ii) agreeing that such policies shall
not be invalidated should the insured waive in writing prior to a loss any and
all rights of recovery against the other party hereto for losses covered by such
policies.
13. DAMAGE TO THE DEMISED PREMISES
------------------------------
(a) In the event of partial or total damage or destruction of the
Leased Premises by fire, other casualty, or any cause whatsoever (except
condemnation), Lessee shall give immediate notice to Lessor. If the damage or
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destruction is insured against by Lessor, this Lease shall continue in full
force and effect, and, to the extent that insurance proceeds respecting such
damage or destruction are subject to being utilized and, in fact, may be
utilized by Lessor for repair, Lessor shall cause such damage or destruction to
be repaired with reasonable speed at the expense of Lessor, except as otherwise
hereinafter provided in this Paragraph 13. If in the reasonable opinion of
Lessor the damage or destruction is such that repair thereof cannot reasonably
be completed within ninety (90) days of the date the damage or destruction
occurs, Lessor shall have the right to terminate this Lease by the giving of
written notice to such effect to Lessee within thirty (30) days of the date of
Lessor's receipt of Lessee's notice of damage or destruction. In no event shall
Lessor be required to restore or repair Lessee's personal property or other
contents within the Leased Premises. Due allowance shall be made for reasonable
delay which may arise by reason of Lessor's adjustment of loss under insurance
policies and on account of labor troubles or any other cause beyond Lessor's
control. To the extent that the Leased Premises are rendered untenantable, the
Rent and Additional Rent shall proportionately ▇▇▇▇▇. If the damage or
destruction is not covered by insurance maintained by Lessor or if insurance
proceeds respecting the damage or destruction are not subject to being utilized
for repair and, in fact, may be not so utilized, Lessor shall not be required to
repair the damage or destruction. In the event the damage or destruction is so
extensive to the building of which the Leased Premises are a part as to render
it uneconomical, in Lessor's opinion, to restore the Leased Premises, the Lease,
at the option of Lessor, shall be terminated upon written notice to Lessee and
Lessee shall immediately thereafter vacate the Leased Premises and surrender the
same to Lessor. No such termination shall release Lessee from any liability to
Lessor from any of the obligations or duties imposed on Lessee under this Lease
prior to the damage. Upon any termination of this Lease pursuant to his
Paragraph 13(a), Rent and Additional Rent shall be prorated and adjusted to the
date of such termination.
(b) Lessee hereby waives any and all right of recovery which it
might otherwise have against Lessor, its agents and employees, for loss or
damage to Lessee's contents, furniture, furnishings, fixtures and other property
removable by Lessee under the provisions of this Lease to the extent that the
same is to be covered by Lessee's insurance thereunder, except where such loss
or damage may result from the negligence of fault of Lessor, its agents,
employees or contractors.
14. EMINENT DOMAIN
--------------
(a) If during the term of this Lease, the Leased Premises, or
such a substantial portion of the Leased Premises as shall prevent Lessee from
conducting its normal business, shall be taken by proper authority for public or
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quasi-public use, then Lessee may terminate this Lease by giving Lessor written
notice of termination within thirty (30) days after receipt of notice of the
taking, and Lessee's obligation to pay rent, taxes, and other charges shall
terminate as of the date of the termination notice. If only a part of the Leased
Premises is taken and the part not taken shall be reasonably sufficient for the
purpose of conducting Lessee's normal business, this Lease shall remain in full
force and effect, except that the Rent and Additional Rent shall be
proportionately reduced.
(b) All compensation awarded for any taking shall belong to and
be the property of Lessor. Nothing contained herein, however, shall be construed
to preclude Lessee from prosecuting any claim directly against the condemning
authority for loss of business or depreciation, damage or cost of removal of
personal property belonging to Lessee so long as the claim does not diminish or
otherwise adversely affect Lessor's award or the award otherwise payable to
Lessor's mortgagee.
15. CONDITION OF LEASED PREMISES; MAINTENANCE AND REPAIR
----------------------------------------------------
(a) Except for the repairs that Lessor is specifically obligated
to make under Paragraph 15(b) hereof, and except for repairs covered by
contractor warranties held by Lessor for Lessor's benefit, during the term of
this Lease, Lessee, at Lessee's sole cost and expense, shall promptly make all
repairs, perform all maintenance, perform all custodial services and make all
replacements in and to the Lease Premises that are necessary in order to keep
the Leased Premises in good order and repair and in a safe and tenantable
condition. Without limiting the generality of the foregoing, Lessee, at its sole
cost and expense, is specifically required to make promptly all repairs to (i)
any pipes, water and waste lines, ducts, wires or conduits beneath or in the
Leased Premises or within the ceiling of the Leased Premises; (ii) any glass
windows included within the Leased Premises; (iii) Leasee's sign(s); (iv) any
electrical, natural gas (if any), heating, ventilating and air conditioning,
plumbing, and other systems, equipment, fixtures and items installed in or
servicing the Leased Premises; (v) the floors, ceilings and walls of the Leased
Premises; (vi) the entrance and exit and auxiliary driveways, if any, which are
part of and service the Leased Premises; and (vii) any portion of the Leased
Premises damaged by Lessee's use or occupancy of the Leased Premises or by any
act, omission or negligence of Lessee, or any of its respective employees,
agents, invitees, licensees or contractors. All repairs, and replacements made
by Lessee shall utilize materials and equipment which are at least equal in
quality and usefulness to those originally used in the Leased Premises. Lessee,
at Lessee's expense, shall enter into one (1) or more service contracts for the
maintenance of the heating, ventilating and air conditioning systems and
equipment. Lessee shall keep the Leased Premises free of all insects, rodents,
vermin and pests of every type and kind. Lessee shall also, promptly and at its
own expense, keep any sidewalks and curbs adjacent to the Leased Premises clean
and free from snow, ice, dirt and rubbish. Lessee shall not (directly or by
sufferance) place any equipment, materials or debris on the roof of the Leased
Premises, or cut, drive nails into or otherwise mutilate such roof.
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(b) Lessor shall within thirty (30) days (or such longer period
of time as may reasonably be required by Lessor) after written notice from
Lessee with respect thereto, make necessary structural repairs to the exterior
walls and shall keep in good order, condition and repair the exterior
foundations, downspouts, gutters and roof of the Leased Premises and the portion
of the plumbing and sewage system located outside the building in which the
Leased Premises are located (it being understood and agreed that Landlord's
obligations exclude the exterior and interior of all windows, doors, plate glass
and signs, and repairs required by any casualty except as otherwise covered by
Paragraph 13 herein). Lessee shall, upon demand, reimburse Lessor for reasonable
costs of making any such repairs or replacements caused by Lessee's use or
occupancy of the Leased Premises or by any act, omission or negligence of
Lessee, any subtenant or concessionaire of Lessee, or their respective
employees, agents, invitees, licensees or contractors (excluding repairs or
replacements caused by Lessee's normal use).
(c) Lessee hereby covenants to contain all garbage, rubbish,
waste, trash and debris generated in conjunction with its use of the Leased
Premises in containers provided by Lessor (which shall be emptied no more than
three times per week, but at least once a week) so as not to constitute a safety
or fire hazard.
16. ALTERATIONS
-----------
Lessee shall not make any non-structural interior alterations,
additions or improvements in or to the Leased Premises without the prior written
consent of Lessor in each instance, which consent shall not be unreasonably
withheld or delayed. Lessee shall not take any structural or exterior
alterations, additions or improvements to the Leased Premises without the prior
written consent of Lessor. Should Lessor fail to respond within fifteen (15)
working days after Lessor's receipt of any written request from Lessee for
Lessor's consent to any proposed alterations, additions or improvements,
Lessor's consent shall be deemed to have been granted. All permitted
alterations, additions and improvements made by Lessee shall be performed (i) in
a good and workmanlike manner, (ii) in accordance with all applicable legal and
insurance requirements, (iii) only after receipt by Lessee and presentation to
Lessor of all necessary permits and licenses, and (iv) at Lessee's sole expense.
Except for Lessee's removable trade fixtures, and all improvement made by Tenant
in the processing and storage areas, all improvements, repairs, alterations and
additions and all other non-trade fixtures, whether installed before or after
the execution of this Lease, shall remain upon the Leased Premises at the
expiration or sooner termination of this Lease and become the property of Lessor
without payment therefor by Lessor, unless prior to the termination of this
Lease, Lessor shall have given written notice to Lessee to remove the same, in
which event Lessee, at its expense, will remove such alterations, improvements,
additions and/or fixtures and repair and restore any and all damage to the
Leased Premises caused by the installation and/or removal thereof.
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17. SIGNS
-----
Lessee may not install any sign without Lessor's prior written
consent. All signs shall be in strict compliance with the sign criteria set
forth in Exhibit "C" attached hereto and made part hereof. Lessee shall install
all exterior signs for the Leased Premises at the cost and expense of Lessee. No
sign, advertisement or notice shall be inscribed, painted, affixed or otherwise
displayed on any part of the outside or the inside of the Leased Premises or the
building of which the Leased Premises are a part, unless Lessor shall have
approved the sign, advertisement, or notice in writing prior to installation of
the same. If any sign, advertisement, or notice is exhibited by Lessee without
having first obtained Lessor's approval thereof, Lessor shall have the right to
remove the same and Lessee shall be liable for any and all expenses incurred by
Lessor in said removal. No signs made of paper and visible from outside of the
Leased Premises shall be allowed in the Leased Premises. No mobile sign, such as
may be affixed to the side of a truck or a trailer or a mobile platform shall be
permitted in the parking area.
18. LAWS AND INSURANCE STANDARDS
----------------------------
Lessee shall, at Lessee's sole expense, promptly comply in every
respect with all applicable laws, ordinances, rules and regulations of all
federal, state, county, and municipal governments now in force or that may be
enacted in the future, all applicable and enforcement directions, rules and
regulations of the fire ▇▇▇▇▇▇▇▇, health officer, building inspector or other
proper officers of any governmental agency having jurisdiction, and the
applicable standards established from time to time by the National Board of Fire
Underwriters, the National Fire Protective Association, or any similar bodies.
Lessee expressly covenants and agrees to indemnify and save Lessor harmless from
any penalties, damages or charges imposed for any violation of the foregoing.
Notwithstanding the foregoing, Lessee shall not be required to make any changes
or modifications to the Leased Premises, unless (a) the same are required due to
Lessee's specific use and/or occupancy of the Leased Premises, (b) the same are
required due to structural specifications (beyond building standard) required by
Lessee, or (c) the same relate to repairs, maintenance or other responsibilities
of Lessee under this Lease, e.g., Paragraph 15(a) hereof.
19. MECHANIC'S LIENS
----------------
Lessee shall do all things necessary to prevent the filing of any
mechanics' or other liens against the Leased Premises, or the land the building
of which the Leased Premises are part, by reason of work, labor, services or
materials supplied or claimed to have been supplied to Lessee or anyone holding
the Leased Premises, through or under Lessee. If any lien shall at any time be
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filed, Lessee shall either cause the lien to be discharged of record within ten
(10) days after knowledge of its filing or, if Lessee in its discretion and good
faith determines that the lien should be contested, shall furnish such security
as may be necessary to prevent the filing of any foreclosure proceedings during
the pendency of the contest. If Lessee shall fail to discharge any lien within
such period or fail to furnish such security, then, in addition to any other
right or remedy, Lessor may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge of
lien by deposit in court or by giving security or in such other manner as is or
may be prescribed by law. Lessee shall repay to Lessor on demand all sums
disbursed or deposited by Lessor pursuant to the foregoing provisions, including
the expenses and reasonable attorneys' fees incurred by Lessor. Nothing
contained in this Lease shall imply that Lessee has any authority or consent
from Lessor to subject Lessor's estate to any mechanics', materialman's or other
lien.
20. ASSIGNMENT AND SUBLETTING
-------------------------
(a) Lessee shall not assign, mortgage or encumber any interest in
this Lease or sublet all or any part of the Leased Premises without the prior
written consent of Lessor. Lessor shall not unreasonably withhold or delay its
consent to an assignment or subletting of this Lease.
(b) No permitted assignment or subletting shall release,
discharge or affect the liabilities of Lessee as provided for in this Lease, and
Lessee shall at all times remain primarily liable under this Lease. An
assignment by operation of law shall be deemed a prohibited assignment under
this Paragraph.
21. INSOLVENCY
----------
Lessor may, at its option, declare this Lessee terminated and
reenter and resume possession of the Leased Premises, if Lessee shall be
adjudicated a bankrupt or insolvent, or if a receiver or trustee shall be
appointed for Lessee's business or property, or if Lessee shall file a petition
in bankruptcy or insolvency, or if a petition or other proceeding shall be filed
by or against Lessee seeking corporate or other reorganization, liquidation or
other similar relief or if Lessee shall make an assignment or an arrangement for
the benefit of creditors, or if an involuntary petition shall be filed against
Lessee in bankruptcy or insolvency and such petition shall not be dismissed
within sixty (60) days.
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22. REMEDIES CUMULATIVE
-------------------
The various rights, elections and remedies of Lessor contained in
this Lease shall be cumulative, and no one of them shall be construed as
exclusive of any of the others, or of any right, priority or remedy allowed or
provided for by law.
23. WAIVER OR DEFAULT
-----------------
The waiver by either party of any default in the performance by
the other of any covenant shall not be construed to be a waiver of any preceding
or subsequent default of the same or any other covenant contained herein. The
subsequent acceptance of Rent or other sums by Lessor shall not be deemed a
waiver of any preceding default other than the failure of Lessee to pay the
particular rental or other sum so accepted.
24. HOLDING OVER
------------
If Lessee shall hold possession of the Leased Premises after the
end of the term or other termination of this Lease, Leases shall be deemed to be
occupying the Leased Premises as a tenant from month to month, subject to all of
the conditions, provisions and obligations of this Lease; provided, however,
Lessee shall be liable for any and all damages and expense that Lessor may
sustain by virtue of Lessee's holding over, including, but not limited to, any
amount for which Lessor may be liable under, or as a result of, any other lease
entered into by Lessor for a term beginning at or after the expiration of the
term of this Lease. Nothing contained in this Lease shall be construed as a
consent by Lessor to the occupancy or possession of the Leased Premises by
Lessee after the expiration of the term of this Lease. Rather, at the end of the
term of the Lease, Lessor shall be entitled to the benefit of all laws or
ordinances relating to the recovery of the possession of lands and tenements
held over by tenants that now may be in force or hereafter may be enacted, and
Lessor may proceed under such laws or ordinances, without notice to Lessee, all
statutory notice requirements being expressly waived by Lessee.
25. SURRENDER
---------
Upon the expiration of the term of this Lease, Lessee immediately
shall surrender the Leased Premises broom-clean and in good order and condition,
ordinary wear and tear excepted. All of Lessee's personal property at or about
the Leased Premises (but not permanently affixed parts of the Leased Premises)
shall be removed by Lessee at or before the expiration of this Lease or shall be
deemed abandoned by Lessee. Any damage to the Leased Premises caused by such
removal shall be repaired by Lessee at its own expense.
26. DEFAULT
-------
(a) If Lessee fails to pay any Rent or Additional Rent when due
and such failure continues for a period of five (5) days after Lessor shall have
made written demand on Lessee for payment, or if Lessee otherwise is at any time
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in default under this Lease and continues in such default for a period of thirty
(30) days after Lessor shall have demanded in writing to Lessee that such
default be cured, or if such latter default is not capable of being cured within
a fifteen (15) day period, such additional time (not to exceed forty-five (45)
days) as is reasonably necessary to cure such default, provided Lessee promptly
commences and diligently pursues to cure such default, then Lessor may, at
Lessor's option, terminate this Lease (without releasing Lessee of liability)
and by summary proceedings or other manner prescribed by law, reenter and take
possession of the Leased Premises. If Lessor should so terminate this Lease,
Lessee shall pay to Lessor as damages, upon demand, all expenses (including,
without limitation, attorneys' fees) of any proceedings necessary in order for
Lessor to recover possession of the Leased Premises and the expenses of
reletting the Leased Premises (including, without limitation, reasonable
attorneys' fees, brokerage commissions, and the costs of putting the Leaded
Premises in good order and preparing it for reletting, plus either:
(i) Liquidated damages in an amount equal to the excess, if
any, of the Rent and Additional Rent that would have been payable over the
unexpired portion of the term of this Lease over the rental value of the Leased
Premises for such unexpired portion of the term of this Lease, as discounted at
the then publicly declared prime rate of the Federal Bank in Baltimore,
Maryland; or
(ii) Damages in an amount to the excess, if any, of the
monthly Rent and Additional Rent over the monthly rentals, if any, if fact
collected by Lessor as the result of a reletting of the Leased Premises at such
rent and upon such terms as Lessor, in its sole discretion, elects to accept.
Separate actions may be maintained each month by Lessor to recover the damages
then due as provided for in this subparagraph (ii) and any such action shall not
prejudice the rights of Lessor to collect damages for any subsequent month in a
similar proceeding.
(b) No re-entry or reletting of the Leased Premises, whether or
not the term of such reletting extends beyond the term of this Lease, shall be
construed as an election by Lessor to: (i) accept a surrender of the Leased
Premises, or (ii) release Lessee of any of its obligations under this Lease.
(c) Should Lessor, pursuant to its rights under Paragraph 26(a)
hereof, elect to terminate this Lease and reenter and take possession of the
Leased Premises, Lessor shall use commercially reasonable efforts, under then
prevailing circumstances, to relet the Leased Premises.
27. ACCESS TO LEASED PREMISES
-------------------------
(a) Lessor and its designees shall have the right (subject to
being accompanied by Lessee's representative at all times for security reasons)
to enter upon the Leased Premises at all reasonable hours, after 24 hours
notice, (and in emergencies, at all times): (i) to inspect the same; (ii) to
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make repairs, additions, or alterations to the Leased Premises or the building
in which the same are located or any property owned or controlled by Landlord;
(iii) to exhibit the Leased Premises to any prospective buyer, lessee or
mortgagee or their respective agents or representatives; and (iv) for any lawful
purpose.
(b) For a period commencing three (3) months prior to the end of
the term, Lessor may have reasonable access to the Premises for the purpose of
exhibiting the same to prospective tenants and to post any "For Rent" or "For
Lease" signs upon the Leased Premises.
28. SUBORDINATION AND ATTORNMENT
----------------------------
(a) This Lease is subject and subordinate to the lien of all
present and future mortgages and/or deeds of trust encumbering the Leased
Premises, all present and future advances under such mortgages and/or deeds of
trust, and all renewals, extensions, modifications, recastings or refinancings
of such mortgages and/or deeds of trust. Lessee agrees that, in the event any
proceedings are brought under or for the foreclosure of any such mortgage and/or
deed of trust, Lessee shall, if requested to do so by the beneficiary under or
holder of such mortgage and/or deed of trust or by any successor in interest to
such beneficiary or holder, automatically become the lessee of such beneficiary,
holder or successor in interest and shall automatically attorn to such
beneficiary, holder and/or successor in interest and recognize such beneficiary,
holder and/or successor in interest as the Lessor under this Lease. In
confirmation of such attornment, however, Lessee shall, at the request of Lessor
or any beneficiary, holder or successor in interest, promptly execute any
requisite or appropriate certificate or other document for the benefit of such
beneficiary, holder and/or successor in interest.
(b) In the event that, after the date of this Lease, a bona fide
loan shall be made by an insurance company, savings bank, commercial bank, trust
company, or other lender and secured by a mortgage or deed of trust constituting
a lien against any portion of the Leased Premises and said lender shall
complete, execute and acknowledge a subordination, attornment, and
non-disturbance agreement, then and in that event, Lessee shall subordinate this
Lease to said mortgage or deed of trust by executing and acknowledging the said
subordination, attornment and non-disturbance agreement.
(c) Upon any assignment or termination of Lessor's interest in
the Leased Premises, Lessee shall, upon request, attorn in writing to the new
owner of the Leased Premises and shall pay to the new owner all rents and other
monies required to be paid and perform all of the other obligations of Lessee
under this Lease. Following any sale by Lessor of the property of which the
Leased Premises are a part, all obligations to the assigning Lessor to Lessee
shall cease and terminate and Lessee shall look solely to the successor for the
performance of Lessor's duties hereunder.
(d) Notwithstanding the foregoing, this Lease shall not be
terminated so long as Lessee is not in default of any provisions in this Lease.
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(e) Lessor shall, within fifteen (15) days after the date hereof
(or prior to the effective date of any encumbrance mentioned in this Section 28
created after the date hereof) obtain from the holder of any such encumbrance,
an agreement whereby if such holder or any successor in interest shall come into
possession of the Leased Premises, or any part thereof, by dispossession,
foreclosure or otherwise, or shall become the owner of such property, or take
over the rights of Lessor to such property, said holder shall not disturb the
possession, use or enjoyment of the Leased Premises by Lessee, its successors or
assigns, nor disaffirm this Lease or Lessee's rights or estate granted
hereunder, so long as Lessee performs all of its obligations in accordance with
the terms of this Lease.
29. RIGHT TO CURE DEFAULTS
----------------------
(a) If Lessee shall fail to comply fully with any of its
obligations under this Lease, then, in addition to Lessor's other rights, but
not the duty, to cure such breach at Lessee's expense. Lessee agrees to
reimburse Lessor, within fifteen (15) days after Lessor submits a statement of
the amount due, as Additional Rent, for all expenses incurred by Lessor as a
result of any efforts made by Lessor to cure any such breach.
(b) If Lessor shall fail to comply fully with any of its
obligations under this Lease, then, in addition to Lessee's other rights and
remedies under this Lease at law and in equity, Lessee shall have the right, but
not the duty, to cure such breach at Lessor's expense; provided that prior to
the exercise of such right to cure, Lessee shall give Lessor written notice
specifying the nature of the breach and Lessor shall be entitled to ten (10)
days after receipt of such notice within which to cure said breach or such
additional time as may be necessary if such breach is not susceptible to cure
within said ten (10) days, in which case Lessor shall commence to cure within
said ten (10) day period. Lessor agrees to reimburse Lessee, within fifteen (15)
days after Lessee submits a statement of the amount due, for all expenses
incurred by Lessee as a result of any efforts by Lessee to cure any such breach.
If Lessor fails to reimburse Lessee as aforesaid, Lessee may offset the amount
due against the payments of Rent becoming due hereunder unless Lessor gives
written notice of dispute within said fifteen (15) day period either to the
existence of any default or the reasonableness of the amount expended to cure.
In the event such notice of dispute is given, the provisions of subparagraph (c)
shall govern. The right to setoff against Rent shall be subordinate to and there
shall be no setoff against the holder of any mortgages or deed of trust or any
purchaser at foreclosure or deed in lieu thereof on all or any portion of the
Leased Premises. The amount of all setoffs shall be limited to the cumulative
sum of One Hundred Thousand Dollars ($100,000.00).
(c) If Lessor has given notice of dispute as provided in
subparagraph (b), Lessee may have the issues of whether the Lessor is in default
of its obligations or the reasonableness of the amount of expenditures
determined by arbitration. Pending the results of such arbitration, there shall
be no setoff. In the event the arbitrators determine that Lessor was in default,
Lessor shall pay all costs of arbitration and Lessee shall have the right to
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offset all of its costs and expenses of remedying such default (including
unreimbursed costs of the arbitration proceeding) against the payments of Rent
becoming due hereunder, subject to the limitations set forth in subparagraph (b)
above. If the arbitrators determine that Lessor was not in default, then Lessee
will pay all of the arbitration.
(d) If Lessor is determined to be in default in its obligations
under Paragraph 15(c) of this Lease and Lessee shall remedy such default in
accordance with the preceding paragraph, Lessee shall be entitled to offset one
hundred fifteen percent (115%) of the costs and expenses of remedying such
default, with the additional fifteen percent (15%) being to reimburse Lessee for
its overhead.
30. BROKERAGE
---------
Lessor hereby acknowledges that ▇▇▇▇▇▇▇▇▇▇ Realty, Inc. ("Broker")
has served as Lessor's agent in connection with this Lease and agrees to pay
said Broker a commission as per a separate agreement between Lessor and Broker.
Lessor warrants to Lessee and Lessee warrants to Lessor that it has not dealt
with any other broker or real estate agent or finder in connection with this
Lease and that, except for the aforesaid commission payable to Broker, no right
or claim for commission or other compensation has been created by its actions
with respect to this Lease. Lessor and Lessee shall indemnify and hold each
other harmless against all loss, liability or expense, including reasonable
attorney's fees and litigation costs, incurred by the other to the extent one or
the other is shown to be in breach of the foregoing warranties.
31. EFFECT OF CONVEYANCE
--------------------
If during the term of this Lease Lessor sells its interest in the
Leased Premises or this Lease, then from and after the effective date of such
sale, Lessor shall be released and discharged from any and all further
obligations and responsibilities under this Lease except those already accrued.
Any such sale shall be subject to this Lease and Lessor shall require any
purchaser to acknowledge the existence of Lessee's tenancy.
32. INTERPRETATION
--------------
The captions by which the paragraphs of this Lease are identified
are for convenience only and shall have no effect upon the interpretation of
this Lease. Whenever the context so requires, the singular number shall include
the plural, and plural shall refer to the singular and the neuter gender shall
include the masculine and feminine genders. If any provision of this Lease shall
be held to be unenforceable by a court, the remaining provisions shall remain in
effect and shall in no way be impaired.
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33. ENTIRE INSTRUMENT
-----------------
All of the agreements previously and contemporaneously made by the
parties are contained in this Lease, and this Lease cannot be modified in any
respect except by a writing executed by Lessor and Lessee.
34. ESTOPPEL CERTIFICATES
---------------------
Recognizing that both parties may find it necessary to establish
to third parties, such as accountants, banks, mortgagees or the like, the then
current status of performance hereunder, either party, on the written request of
one to the other made from time to time, will promptly furnish a written
certificate on the status of any matter pertaining to this Lease in such form
and substances as may from time to time be reasonably required.
35. NOTICES
-------
Any notices and other communications required or permitted to be
given by either party to the other shall be in writing and shall be deemed to
have been served when hand delivered or, if the United States Mail is used, on
the second business day after the notice is deposited in the United States Mail,
postage prepaid, registered or certified mail, or by overnight delivery service,
and addressed to the parties as follows:
To Lessee: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
Bio Science Contract Product Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Lessor: Muirkirk Manor Associates Limited Partnership
c/o The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Either party, by written notice to the other, may change its address to which
notices are to be sent.
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36. WAIVER
------
Any waiver of either Lessor or Lessee of any default, breach or
failure by the other to comply with any term, condition, or provision of this
Lease shall not constitute a waiver of any other default, breach or failure by
such defaulting party. No covenant, term or condition of this Lease shall be
deemed to have been waived by either party unless such waiver be in writing and
signed by the party to be charged therewith.
37. QUIET ENJOYMENT
---------------
So long as Lessee is not in default beyond applicable grace
periods, Lessee shall have peaceful and quiet use and possession of the Leased
Premises without hindrance on the part of Lessor or any person claiming by,
through or under Lessor.
38. RECORDING THIS LEASE
--------------------
Lessee may not record either this Lease nor a memorandum thereof
among or in any public records without Lessor's prior written consent.
39. GOVERNING LAW
-------------
All questions with respect to construction of this Lease and the
rights and liabilities of the parties shall be determined in accordance with the
laws of the State of Maryland.
40. BENEFIT
-------
Subject to the restrictions on assignment and subletting set forth
in Paragraph 20, the covenants, terms and conditions of this Lease shall inure
to the benefit of and be binding upon Lessor and Lessee and their respective
successors and assigns.
41. REASONABLE CONSENT
------------------
Wherever in this Lease Lessor or Lessee is required to obtain the
consent or approval of the other, it is agreed that such consent or approval
shall not be unreasonably withheld or delayed.
42. TIME OF ESSENCE
---------------
Time is of the essence in the performance of all of Lessor and
Lessee's obligations under this Lease.
(See Lease Addendum for Paragraphs 43 and 44)
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IN WITNESS WHEREOF, the parties have executed this Lease on the day and
year first above written.
WITNESS: LESSOR:
MUIRKIRK MANOR ASSOCIATES
LIMITED PARTNERSHIP,
a Maryland limited partnership
By: THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP, INC.
its general partner
/s/ Jolina Early By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (SEAL)
------------------ ----------------------------------
WITNESS: LESSEE:
BIO SCIENCE CONTRACT PRODUCTION CORP.
a Maryland corporation
/s/ Jolina Early By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------- ----------------------
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EXHIBIT "C" (PART II)
LEASE ADDENDUM
--------------
(PARK PLACE)
THIS LEASE ADDENDUM made as of the 20th of March, 1992, is attached to
and made part of that certain Lease of even date herewith (the "Lease") by and
between MUIRKIRK MANOR ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership ("Lessor"), and Bio Science Contract Production Corp., a Maryland
corporation ("Lessee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Lessor and Lessee have agreed to amend, supplement and/or
modify the Lease as herein provided, Landlord and Tenant hereby agree as
follows:
1. TERM - OPTION
-------------
Lessee, at its option, shall have the right to extend the Term of
this Lease on the same terms and conditions, as the original term thereof,
except as otherwise provided in this Addendum with respect to the amount of Base
Rent due during the respective extension period, for two (2) additional
consecutive terms of Five (5) years each (the "Extension Periods"), subject to
the satisfaction of the following conditions:
(i) Lessee's option to extend the Lease for each of the Extension
Periods shall be exercisable only by written notice to Lessor at least ninety
(90) days prior to the commencement date of each Extension Period. If Lessee
does not give Lessor written notice as aforesaid, Lessee shall be deemed to have
not exercised its respective extension option.
(ii) At the time of exercise of the option and at the
commencement of each Extension Period, Lessee shall not be in default under the
Lease beyond any applicable grace period.
(iii) Upon exercising the option, the Base Rent will be the
product obtained by multiplying the Base Rent for the immediately preceding
Lease Year by one hundred four percent (104%).
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2. RENT
----
For months 1 through 5 of the first base year, the monthly base
rent is hereby abated. Monthly base rent payments, in full, shall begin
September 1, 1992. It is agreed that Common Area Maintenance charges and
Additional Rent, if any, will be collected on the first day of occupancy,
pursuant to Paragraph 8.(c).
LESSEE IMPROVEMENTS
-------------------
(a) Lessor has agreed to construct and complete the installation
of Lessee improvements, as set forth in Exhibit "B" to the Lease, within a
budget of one hundred and twenty thousand and 00/100 ($120,000.00) toward the
improvements requested by the Lessee and it is agreed that the demising wall and
.60 per s.f. for design is part of the above allowance. It is agreed that all
plans, specifications, the General Contractor and its sub contractors, as well
as their work schedule, will be approved by the lessor or its Architect.
Payments to the General Contractor will be made in accordance with the schedule
and method established by the Lessor and its lender.
(b) In the event that the cost of constructing and installing the
Lessee improvements to the Leased Premises exceeds the $120,000.00, lessee shall
pay directly to the General Contractor the difference between the cost and the
allowance.
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IN WITNESS WHEREOF, the parties have executed this Lease Addendum on
the day and year first above written.
ATTEST: LESSOR:
MUIRKIRK MANOR ASSOCIATES LIMITED
PARTNERSHIP,
A Maryland limited partnership
By: THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP,
INC.,
its general partner
/s/ Jolina Early By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------- -------------------
LESSEE:
BIO SCIENCE CONTRACT PRODUCTION
CORP.,
a MARYLAND corporation
/s/ Jolina Early By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------- ---------------------
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EXHIBIT "D"
AMENDMENT TO LEASES
-------------------
THIS AMENDMENT TO LEASES ("Amendment"), dated as of 12 November, 1992,
is by and between MUIRKIURK MANOR ASSOCIATES LIMITED PARTNERSHIP, a Maryland
limited partnership ("Lessor"), and CEPHALON PROPERTY MANAGEMENT, INC., a
Delaware corporation ("Lessee"), with reference to the following background:
A. Pursuant to a certain Lease dated December 28, 1990 ("First Lease"),
a certain Lease dated November 12, 1991 ("Second Lease") and a certain Lease
dated March 20, 1992 ("Third Lease"; the First Lease, Second Lease and Third
Lease are collectively referred to herein as the "Leases"), Lessor leased to the
Bio Science Contract Production Corp., a Maryland corporation ("Bio Science"),
certain premises known as Suites 260, 270, 280 and 290, 9000 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Road, Beltsville, Prince George's County, Maryland, as more particularly
described in the Leases ("Premises").
B. Bio Science has assigned all of its right, title and interest in and
to the Leases and the Premises to Lessee pursuant to a certain Assignment and
Assumption of Leases dated November, 1992.
▇. ▇▇▇▇▇▇ and Lessee desire to modify certain terms and provisions of
the Leases as hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
and to bind their respective successors and assigns, Lessor and Lessee agree as
follows:
1. USE. (A) Without limiting anything contained therein, Section 5
of the Leases is hereby amended to expressly permit Lessee to use
the Premises for the research, development, testing and production
of biological compounds and other pharmaceutical substances for
commercial and no-commercial purposes.
(B) Lessee shall defend, indemnify and save harmless
Lessor from and against any and all liabilities, costs and
expenses (including reasonable attorneys' fees) imposed upon or
incurred by Lessor solely by reason of any act or omission of
Lessee in the use and storage of any Hazardous Substance on or in
the Premises or in the disposal of any such Hazardous Substance.
As used herein, "Hazardous Substance" shall mean any hazardous
substance, toxic material or other substance regulated under
federal, state or local law.
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2. ASSIGNMENT. Notwithstanding anything to the contrary contained in
Section 20 or elsewhere in the Leases, and subject to Lessor's mortgagee's
consent, Lessee shall, provided it is not then in default under the Leases
beyond any applicable grace period, have the right and privilege to assign one
or more of the Leases, without Landlord's consent, to an Affiliate of Lessee. As
used herein, "Affiliate" shall mean any person or entity controlling, controlled
by or under common control with Lessee. Lessee shall give Lessor written notice
of any assignment made under this Section 2.
3. ACCESS. Notwithstanding anything to the contrary contained in
Section 27 or elsewhere in the Leases, Lessee shall have the right to prohibit
Lessor's access to those portions of the Leased Premises that contain
confidential or proprietary information or involve a risk of contamination to
the compounds being produced therein.
4. NOTICES. Section 35 of the Leases is hereby amended to require that
all notices required or permitted to be given by Lessor under the Leases shall
be delivered to Lessee at the following address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: President.
5. OPTION TO EXTEND FIRST LEASE. Lessee, at its option, shall have the
right to extend the term of the First Lease on the same terms and conditions as
the original term thereof, except as otherwise provided in Section 5(iii) hereof
with respect to the amount of Base Rent due during the respective extension
period, for two (2) additional consecutive terms of five (5) years (each an
"Extension Period), subject to the satisfaction of the following conditions:
(i) Lessee's option to extend the First Lease for the Extension
Periods shall be exercisable only by written notice to Lessor at least ninety
(90) days prior to the commencement date of the Extension Period. If Lessee does
not give Lessor written notice as aforesaid, Lessee shall be deemed to have not
exercised its respective extension option.
(ii) At the time of exercise of the option and at the commencement
of the Extension Period, Lessee shall not be in default under the Leases beyond
any applicable grace period.
(iii) Upon exercising the option, the Base Rent for the First
Lease will be the product obtained by multiplying the Base Rent for the
immediately preceding Lease Year by one hundred four percent (104%).
6. LEASE IMPROVEMENTS. Subsections (a) and (b) of Section 3 (Lessee
Improvements) of the Lease Addendum to the Third Lease are hereby deleted and
the following shall be inserted in place thereof:
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(a) Lessor has agreed to construct and complete the
installation of Lessee improvements, as set forth in Exhibit "B"
to the Lease, within a budget of one hundred twenty thousand and
00/100 dollars ($120,000.00) towards the improvements requested by
the Lessee and it is agreed that the demising wall and .60 per
s.f. for design is part of the above allowance. It is agreed that
all plans, specifications, the General Contractor and its
subcontractors, as well as their work schedule, will be approved
by Lessee or its Architect. Payment of the General Contractor will
be made in accordance with the schedule and method established by
the Lessor and its lender.
(b) In the event that the cost of constructing and installing
the Lessee improvements to the Leased Premises exceed the
$120,000, Lessee shall pay directly to the General Contractor the
difference between the cost and the allowance.
7. DURATION. The amendments to the Leases resulting from Section 1
through 5 of this Amendment shall remain in effect for so long as Lessee remains
the assignee of Bio Science's interest in the Leases.
8. NO FURTHER AMENDMENT. Except as amended by this amendment, all
terms, provisions and agreements contained in the Leases are hereby ratified and
confirmed and remain in full force and effect.
[this space intentionally blank]
-88-
IN WITNESS WHEREOF, Lessor and Lessee have each duly executed this
Amendment as of the date first above written.
MUIRKIRK MANOR ASSOCIATES
LIMITED PARTNERSHIP,
a Maryland limited partnership
By: THE ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ GROUP, INC.
a Maryland close corporation its General
Partner
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
CEPHALON PROPERTY MANAGMENT, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name:
Title:
-89-
EXHIBIT "D" (PART II)
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES ("Assignment") is entered into
as of the 14th day of December , 1992, by BIO SCIENCE CONTRACT PRODUCTION CORP.,
a Maryland Corporation ("Assignor"), and C EPHALON PROPERTY MANAGEMENT, INC., a
Delaware corporation ("Assignee"). For valuable consideration, the parties
hereto, each intending to be legally bound and to bind their respective
successors and assigns, hereby convenant and agree as follows:
1. ASSIGNMENT. Assignor hereby assigns, transfers and sets over unto
Assignee, and Assignee hereby accepts, all of Assignor's right, title and
interest in and to (i) that certain Lease dated December 28, 1990, (ii) that
certain Lease dated November 12, 1991 and Addendum thereto and (iii) that
certain Lease dated March 20, 1992 and Addendum thereto, copies of which are
attached hereto as, respectively, Exhibits "A" - "C" and made a part hereof
(collectively, "Leases"), each between Muirkirk Manor Associates Limited
Partnership, a Maryland limited partnership, as landlord, and Assignor, as
tenant, which Leases pertain to Suites 260, 270, 280 and 290, 90000 ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
("Premises"). This Assignment includes all security deposits paid by Assignor
under the Leases and all allowances and amounts available for lessee
improvements to the Premises.
2. REPRESENTATIONS AND WARRANTIES. Assignor represents and warrants to
Assignee that: (a) Assignor is the tenant under the Leases and the sole occupant
of the Premises, (b) the Leases are the only leases or agreements whereby any
person has been granted the right to use or occupy the Premises or any part
thereof, (c) Assignor has not previously assigned the Leases or sublet the
Premises and has received no notice of a prior assignment, hypothecation or
pledge of the Leases or the rent payable thereunder, (d) there exists no default
by Assignor or the landlord under the Leases, or, to the best of Assignor's
knowledge, no event, fact or circumstance which, with the giving of notice or
the passage of time, or both, would constitute a default, (e) the security
deposits due under the Leases have been paid in full, the amount of the security
deposits has not been reduced and Assignor's interest in the security deposits
has not been previously pledged, transferred or assigned, (f) the copies of the
Leases which are attached hereto are true, correct and complete and constitute
the entire agreement between Assignor and the landlord under the Leases, (g)
there are no actions or proceedings, whether voluntary or involuntary, pending
with respect to Assignor under any bankruptcy, insolvency, debt adjustment or
similar law of the United States or any state thereof, (h) the landlord under
the Leases has fulfilled all of its representation, warranties and agreements
-90-
under the Leases, and (i) the construction and installation of all "lessee
improvements" to the Premises have been completed in all respects in accordance
with the Leases, except for any items specified on Schedule I hereto, there are
no payments due the landlord under the Leases or any other party from Assignor
or due Assignor from the landlord under the Leases in connection with any such
work, except as specified on Schedule II hereto, and the amount of $211,413.49
remains available for use in completing such work.
3. PERFORMANCE. Assignor shall be responsible for the observance and
performance of all agreements and obligations of the "Lessee" under the Leases
arising prior to the Effective Date (defined below). Assignee, and not Assignor,
shall be responsible for the observance and performance of all agreements and
obligations of the "Lessee" under the Leases arising on or after the Effective
Date.
4. EFFECTIVE DATE. Notwithstanding anything to the contrary contained
herein, this Assignment shall not become effective until such date ("Effective
Date"), if ever, that Assignor and Assignee (i) enter into an Asset Purchase
Agreement providing for Assignee's acquisition of certain assets of Assignor
located on the Premises and (ii) consummate the transactions contemplated
thereunder.
5. CONTINUING OBLIGATIONS. Assignor acknowledges, pursuant to Section
20 of the Leases, that the assignment effected hereby shall not release,
discharge or affect the liabilities of Assignor under the Leases and that
Assignor shall at all times remain primarily liable under the Leases.
6. TERMINATION. Assignee shall have the absolute and unconditional
right and privilege to terminate this Assignment as to any Lease at any time,
upon five (5) days' prior written notice to Assignor. As of the date specified
in any such notice ("Termination Date"), Assignor shall be fully and solely
liable for all agreements and obligations of the "Lessee" under such Lease and
Assignee shall have no further obligations under such Lease, except for any
liability or obligation accrued between the Effective Date and the Termination
Date.
7. INDEMNITY. Assignor shall defend, protect, indemnify and save
harmless Assignee from and against any and all liabilities, suits, actions,
losses, damages, costs and expenses, including, without limitation, counsel fees
and court costs, suffered or incurred by Assignee resulting from or relating to
any failure by Assignor to observe or perform any of its agreements or
obligations under the Leases prior to the Effective Date or after the
Termination Date.
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
as of the date first above written.
(Corporate Seal) BIO SCIENCE CONTRACT
Attest: PRODUCTION CORP.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------- ---------------------
Name: Name:
Title: Title:
(Corporate Seal) CEPHALON PROPERTY
Attest: MANAGEMENT, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------- -----------------
Name: Name:
Title: Title:
-92-
SCHEDULE I
UNCOMPLETED LESSEE IMPROVEMENTS
-------------------------------
NONE.
-93-
SCHEDULE II
AMOUNT DUE FOR LESSEE IMPROVEMENTS
----------------------------------
NONE.
-94-
EXHIBIT "E"
LETTER AGREEMENT
----------------
December 29, ▇▇▇▇
▇▇▇▇▇▇▇▇ Manor Associates
Limited Partnership
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Bio Science Contract Production Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ (Suites 260, 270, 280 and 290)
(the "Premises")
----------------------------------------
Gentlemen:
As you know, Bio Science desires to assign to Cephalon Property
Management, Inc. ("CPMI") three leases for the Premises between Bio Science, as
Tenant, and Muirkirk Manor Associates Limited Partnership, as Landlord, pursuant
to an Assignment and Assumption of Leases dated December 14, 1992 (the
"Assignment Agreement"). The Landlord is required to obtain the consent of the
party holding the mortgage on the Premises, Potomac Equity Portfolio Limited
Partnership, an Illinois limited partnership ("Lender"), to the Assignment
Agreement, as well as to the Amendment to Leases between the Landlord and CPMI
dated November 12, 1992, which is to become effective as of December 14, 1992
(the "Amendment").
As a condition to giving its consent, the Lender has requested that
certain changes be made to the Assignment Agreement and the Amendment, and Bio
Science, Muirkirk and CPMI wish to amend the documents to make such changes, as
follows:
1. The first sentence of Section 6 of the Assignment Agreement is
hereby amended and restated in its entirety as follows:
"Assignee shall have the right and privilege to terminate this
Assignment at any time, upon 180 days prior written notice to Assignor
and to Assignor's lender, Potomac Equity Portfolio Limited Partnership
(if it continues to hold the mortgage covering the Premises) (the
-95-
"Lender"), PROVIDED that such termination is in conjunction with
Assignee's transfer to Assignor of substantially all of the equipment
of Assignor acquired by Assignee as of December 14, 1992 (or the
functional equivalent thereof) in substantially the same condition as
existed as of November 11, 1992 or, in CPMI's discretion, cash in lieu
thereof at the value agreed to by CPMI and Assignor."
2. A new Section 8 is hereby added to the Assignment Agreement, which
states in its entirety as follows:
"8. NOTICES. All notices to be delivered hereunder shall be sent by
hand delivery, facsimile (with a confirmation copy sent by first-class
mail) or reputable overnight courier, to the following addresses:
If to Assignor, to:
Bio Science Contract Production Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Lender, to:
Potomac Equity Portfolio Limited Partnership
c/o Amresco Institutional, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
or to such other address or addressee as shall be properly
furnished to the other parties in the manner specified in this
paragraph 8."
3. Section 1(B) of the Amendment is hereby amended to insert
the phrase "and its successors and assigns" after the word "Lessor" in the
second line and in the fourth line.
4. Any assignment of the Leases to an Affiliate pursuant to
Section 2 of the Amendment shall require the consent of Potomac Equity Portfolio
Limited Partnership, as the holder of the mortgage covering the Premises.
5. Section 3 of the Amendment is hereby amended and restated
in its entirety to read as follows:
"Notwithstanding anything to the contrary contained in Section
27 or elsewhere in the Leases, Lessee shall have the right to
prohibit Lessor's access to those portions of the Leased
-96-
Premises that contain confidential or proprietary information
or involve a risk of contamination to the compounds being
produced therein, unless Lessor has, as appropriate, signed a
mutually satisfactory form of confidentiality agreement or
taken such precautions as may be reasonably prescribed by CPMI
to avoid such contamination."
6. CPMI's obligations in this letter shall become effective
upon receipt of the executed consent of the Lender to the Assignment Agreement
and Amendment, in form and substance satisfactory to CPMI.
If the foregoing is correct, please indicate your agreement in
the space provided below.
Very truly yours,
CEPHALON PROPERTY
MANAGEMENT, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Acknowledged and agreed to by:
MUIRKIRK MANOR ASSOCIATES
LIMITED PARTNERSHIP
By The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Group, Inc.,
its General Partner
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
BIO SCIENCE CONTRACT PRODUCTION CORP.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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