SECOND AMENDMENT TO LEASE
Exhibit 10.11.3
SECOND AMENDMENT TO LEASE
This Second Amendment (the “Second Amendment”) to Lease is made as of April 14, 2003, by
and between ARE-20/22/1300 FIRSTFIELD QUINCE ORCHARD, LLC, a Delaware limited liability company,
having an address at 000 Xxxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000
(“Landlord”), and IOMAI CORPORATION, a Delaware corporation, having an address at 00 Xxxxxxxxxx
Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 (“Tenant”).
RECITALS
A. Pursuant to that certain Lease, dated as of December 18, 2000, by and between Landlord and
Tenant (the “Original Lease”), as amended by that certain First Amendment to Lease, dated November
29, 2001 (the “First Amendment”) (the Original Lease, as amended by the First Amendment, is herein
the “Lease”), Landlord leased to Tenant that certain premises (the “Original Premises”) located at
00 Xxxxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx (the “Project”) and more particularly described in the
Lease.
B. Pursuant to that certain Lease Agreement, dated as of December 22, 2000, by and between
Surgi-Vision, Inc., a Delaware corporation (“Sublandlord”) and Landlord (the “Surgi-Vision Lease”),
Landlord leased to Sublandlord that certain premises (the “Surgi-Vision Premises”) consisting of
approximately 18,500 rentable square feet at the Project and more particularly described in the
Surgi-Vision Lease.
C. Pursuant to that certain Agreement of Sublease, dated as of June, 2002, by and between
Sublandlord and Tenant, as subtenant (the “Sublease”), Sublandlord subleased to Tenant
approximately 4,437 rentable square feet of the Surgi-Vision Premises (the “Subleased Space”), as
more particularly described in the Sublease; and pursuant to that certain Consent to Sublease,
dated as of June 24, 2002, by and among Landlord, Sublandlord and Tenant (the “Consent”), Landlord
consented to the Sublease subject to the terms and conditions contained therein.
D. Pursuant to that certain Lease Termination Agreement, effective as of October 25, 2002, by
and between Landlord and Sublandlord, Landlord terminated the Surgi-Vision Lease. Notwithstanding
such termination, Landlord has agreed to recognize certain rights of Tenant with respect to the
Subleased Space and to amend the Lease to incorporate the Subleased Space.
E. Additionally, Tenant desires to further expand the Original Premises by adding in two
segments, approximately 4,498 rentable square feet (the “First Expansion Space”) and approximately
5,570 rentable square feet (the “Second Expansion Space”), each located on the second floor of the
Project (the Subleased Space, the First Expansion Space and the Second Expansion Space are herein
collectively, the “Expansion Space”). The Original Premises together with the Expansion Space
comprise all of the rentable square feet located on the second floor of the Project.
F. Landlord and Tenant desire to amend the Lease to, among other things, add the Expansion
Space to the Original Premises demised under the Lease.
AGREEMENT
Now, therefore, the parties hereto agree that the Lease is amended as follows:
1. Premises. (i) Effective as of the date of this Second Amendment (the “Effective Date”),
the Premises demised under the Lease shall be deemed expanded to include the Subleased Space and
shall be comprised of 16,698 aggregate rentable square feet; (ii) effective as of the First
Expansion Effective Date (as defined below), the Premises demised under the Lease shall be deemed
expanded to include the First Expansion Space and shall be comprised of 21,196 aggregate rentable
square feet; and (iii) effective as of the Second Expansion Effective Date (as defined below), the
Premises demised under the Lease shall be deemed expanded to include the Second Expansion Space and
shall be comprised of 26,766 rentable square feet. The Premises as expanded to include all of the
Expansion Space, is more fully described on Exhibit A attached hereto and incorporated
herein by reference.
2. Base Rent.
(a) Base Rent for the Expansion Space shall be payable as follows: (x) from and after the
Effective Date, Tenant shall pay Base Rent with respect to the Subleased Space in an amount equal
to $6,100.88 per month, which is equal to $16.50 per square foot on an annual basis; (y) from and
after the earlier to occur of (i) beneficial occupancy of the First Expansion Space which shall be
defined as substantial completion of all Tenant Improvements to the First Expansion Space and
installation of Furniture, Fixtures and equipment relating to the First Expansion Space and (ii)
April 15, 2003 (the “First Expansion Effective Date”), Tenant shall pay Base Rent with respect to
the First Expansion Space in an amount equal to $6,184.75 per month, which is equal to $16.50 per
square foot on an annual basis; and (z) from and after later to occur of (i) September 1, 2003 and
(ii) Landlord’s delivery of the Second Expansion Space to Tenant (the “Second Expansion Effective
Date”), Tenant shall pay rent with respect to the Second Expansion Space in an amount equal to
$7,802.64 per month, which is equal to $16.81 per rentable square foot on an annual basis.
(b) Tenant shall pay its proportionate share of Operating Expenses based on the following Pro
Rata Share adjustments: (i) from and after the Effective Date, Tenant’s Pro Rata Share shall be
31.23% (based on 16,698 rentable square feet); (ii) from and after the First Expansion Effective
Date, Tenant’s Pro Rata Share shall be 39.65 % (based on 21,196 rentable square feet); and (iii)
from and after the Second Expansion Effective Date, Tenant’s Pro Rata Share shall be 50.06% (based
on 26,766 rentable square feet). Notwithstanding anything to the contrary, the operating expenses
for the First Expansion Space shall not be the responsibility of Tenant until the First Expansion
Effective Date; and the operating expenses for the Second Expansion Space shall not be the
responsibility of Tenant until the Second Expansion Effective Date.
(c) Base Rent for the Premises shall be adjusted as follows: (i) on June 1, 2003, which is the
next immediate Adjustment Date (as defined in the Lease), Base Rent for the Original Premises,
Subleased Space and First Expansion Space shall increase to $29,692.06 per month, which is equal to
$16.81 per rentable square foot on an annual basis; and (ii) on June 1, 2004, and each Adjustment
Date thereafter, Base Rent for the Premises (which will include all of the Expansion Space by such
date) shall be adjusted in accordance with the terms of the Lease.
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(d) Base Rent shall also be increased effective as of the first day of the first calendar
month immediately following Tenant’s completion of the applicable phase of the Lab Space
Improvements, by an amount necessary to fully amortize the aggregate Additional TIA (as defined
below) disbursed by Landlord pursuant to the Work Letter (as defined below), in equal monthly
payments over the remaining Base Term and the Extension Term, as calculated based on a twelve
percent annual interest rate. In the event Tenant elects not to exercise the Extension Right set
forth in Section 39(a) of the Lease, upon expiration of the Base Term, Tenant shall pay to Landlord
as Additional Rent an amount equal to the unamortized portion of the aggregate Additional TIA.
Notwithstanding anything in Section 4 of the Lease to the contrary, that portion of Base Rent
attributable to the repayment of the Additional TIA shall not be subject to annual adjustment.
3. Security Deposit. As a condition to the effectiveness of this Second Amendment, the
Security Deposit as defined in the Lease shall be increased by the sum of $59,833.00 (the
equivalent of Base Rent for the Expansion Space for three (3) months), which amount shall be held
by Landlord as part of the Security Deposit subject to the terms of the Lease. Tenant shall
receive a credit towards the increased Security Deposit in the amount of $28,536.00, which
represents the amount of Tenant’s security deposit to Sublandlord under the Sublease and which
amount has been paid by Sublandlord to Landlord.
4. Administrative Rent. With respect to any improvements made by Tenant to the Premises,
Tenant shall pay Landlord administrative rent in an amount equal to three percent (3%) of hard
construction related costs of such improvements.
5. Lease Effective Date and Lease Termination. Tenant shall execute and deliver written
acknowledgment of the Effective Date and the Term expiration date in the form attached hereto as
Exhibit B; provided, however, Tenant’s failure to execute and deliver such acknowledgment
shall not affect Landlord’s rights hereunder.
6. Tenant Improvement Allowance.
(a) Effective upon the execution of this Second Amendment, with respect to the Subleased
Space, Landlord shall provide Tenant a tenant improvement allowance (“TI Allowance”) of up to $2.00
per rentable square foot or $8,874.00 in the aggregate, which is included in the Base Rent for the
Subleased Space, for Tenant’s use in making non-structural, normal and customary office renovations
to the Subleased Space (the “Subleased Space Renovations”). Such TI Allowance shall be disbursed
upon completion of the Subleased Space Renovations and submission to Landlord of a draw request in
Landlord’s standard form, containing such certifications, lien waivers, inspection reports and
other matters as Landlord customarily obtains or otherwise requires in order to approve payment of
such draw request. Tenant shall also be entitled to use any portion of such TI Allowance in
connection with the construction of the Lab Space Improvements (as defined below) and in such
event, such TI Allowance shall be disbursed in accordance with the terms of the Work Letter (as
defined below).
(b) Effective upon the First Expansion Effective Date with respect to the First Expansion
Space Landlord shall provide Tenant a TI Allowance of up to $2.00 per rentable square foot or
$8,996.00 in the aggregate, which is included in the Base Rent for the First Expansion Space, for
Tenant’s use in making non-structural, normal and customary office renovations to the First
Expansion Space (the “First Expansion Space Renovations”). Such TI Allowance shall be disbursed
upon completion of the First Expansion Space Renovations and
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submission to Landlord of a draw request in Landlord’s standard form, containing such
certifications, lien waivers, inspection reports and other matters as Landlord customarily obtains
or otherwise requires in order to approve payment of such draw request. Tenant shall also be
entitled to use any portion of such TI Allowance in connection with the construction of the Lab
Space Improvements and in such event, such TI Allowance shall be disbursed in accordance with the
terms of the Work Letter.
(c) Effective upon the Second Expansion Effective Date with respect to the Second Expansion
Space Landlord shall provide Tenant a TI Allowance of up to $2.00 per rentable square foot or
$11,140.00 in the aggregate, which is included in the Base Rent for the Second Expansion Space, for
Tenant’s use in making non-structural, normal and customary office renovations to the Second
Expansion Space (the “Second Expansion Space Renovations”). Such TI Allowance shall be disbursed
upon completion of the Second Expansion Space Renovations and submission to Landlord of a draw
request in Landlord’s standard form, containing such certifications, lien waivers, inspection
reports and other matters as Landlord customarily obtains or otherwise requires in order to approve
payment of such draw request. Tenant shall also be entitled to use any portion of such TI
Allowance in connection with the construction of the Lab Space Improvements and in such event, such
TI Allowance shall be disbursed in accordance with the terms of the Work Letter.
7. Additional Tenant Improvement Allowance. Landlord shall provide to Tenant, at Tenant’s
election, an additional tenant improvement allowance in an amount equal to $60.00 per rentable
square foot of the Expansion Space, up to a maximum amount of $870,300.00 (“Additional TIA”) to be
used by Tenant for construction of any additional laboratory space within the Premises and
auxiliary support areas to such laboratory space (collectively, the “Lab Space Improvements”), The
Additional TIA shall be administered and disbursed in accordance with the terms and conditions of
the Work Letter attached hereto as Exhibit C and incorporated herein by reference (the
“Work Letter”). In no event shall Tenant use the TIA to further improve, alter or otherwise
renovate any existing improved laboratory space within the Original Premises. Landlords shall make
the Additional TIA available to Tenant for a period of eighteen (18) months following the date
hereof.
8. Lab Space Improvements. Other than (i) Tenant’s Property (as defined in the Original
Lease), (ii) the additional items of Tenant’s Property, if any, listed on Exhibit D
attached hereto, (iii) any additional items of Tenant’s Property agreed by Landlord in writing to
be included on Exhibit D in the future, and (iv) any trade fixtures, machinery, equipment
and other personal property not paid for out of the TI Fund (as defined in the Work Letter attached
hereto) which may be removed without material damage to the Premises, which damage shall be
repaired (including capping or terminating utility hook-ups behind walls) by Tenant during the
Term, all Lab Space Improvements, including trade fixtures, built-in machinery and equipment,
built-in case work and cabinets and other similar additions and improvements built into the
Premises so as to become an integral part of the Premises such as fume hoods which penetrate the
roof or plenum area, built-in cold rooms, built-in warm rooms, walk-in cold rooms, walk-in warm
rooms, deionized water systems, glass washing equipment, autoclaves, chillers, built-in plumbing,
electrical and mechanical equipment and systems, and any power generator and transfer switch
(collectively, the “Installations”), shall be and shall remain property of Landlord during the Term
and following the expiration or earlier termination of the Term, shall not be removed by Tenant at
any time during the Term and shall remain upon and be surrendered with the Premises in accordance
with Section 28 of the Lease following the expiration or earlier termination of the Lease
provided, however, that Landlord shall, at the time its approval of such Installation is requested,
notify Tenant if it has elected to cause Tenant to remove such Installation upon the
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expiration or earlier termination of the Lease.
9. Signage. Notwithstanding anything in the Lease to the contrary, Tenant shall, at
Tenant’s sole cost and expense, have the right to use a proportional amount of exterior signage of
the Building, based on the size of the Premises to the size of the Building, to display Tenant’s
name on the exterior of the Building. Any such signage shall be subject to Landlord’s reasonable
approval and shall be installed in accordance with, and comply with all applicable laws, ordinances
or other governmental restrictions. Upon termination of the Lease, Tenant shall remove any
exterior signage and restore the façade of the Building to its original condition.
10. Subordination and Non-disturbance Agreement. Landlord agrees that it shall obtain a
subordination and non-disturbance agreement from Landlord’s existing lender who holds a first
mortgage lien against the Project in the form attached hereto as Exhibit E.
11. Broker Fee. Except for The Staubach Company Northeast, Inc., Landlord and Tenant each
represents and warrants that it has not dealt with any other broker, agent or other person
(collectively, “Other Broker”) in connection with this transaction and that no Other Broker brought
about this transaction,. Landlord agrees that it shall pay a commission to the Staubach Company
Northeast, Inc. in an amount equal to two percent (2%) of the Base Rent for the Expansion Space,
but excluding any increase of Base Rent relating to the Additional TIA. Landlord and Tenant each
hereby agree to indemnify and hold the other harmless from and against any claims by any Other
Broker claiming a commission or other form of compensation by virtue of having dealt with Tenant or
Landlord, as applicable, with regard to this Second Amendment.
12. Miscellaneous.
(a) This Second Amendment is the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous oral and written agreements and
discussions. This Second Amendment may be amended only by an agreement in writing, signed by the
parties hereto.
(b) This Second Amendment is binding upon and shall inure to the benefit of the parties
hereto, their respective agents, employees, representatives, officers, directors, divisions,
subsidiaries, affiliates, assigns, heirs, successors in interest and shareholders.
(c) This Second Amendment may be executed in any number of counterparts, each of which shall
be deemed an original, but all of which when taken together shall constitute one and the same
instrument. The signature page of any counterpart may be detached therefrom without impairing the
legal effect of the signature(s) thereon provided such signature page is attached to any other
counterpart identical thereto except having additional signature pages executed by other parties to
this Second Amendment attached thereto.
(d) Except as amended and/or modified by this Second Amendment, the Lease is hereby ratified
and confirmed and all other terms of the Lease shall remain in full force and effect, unaltered and
unchanged by this Second Amendment. In the event of any conflict between the provisions of this
Second Amendment and the provisions of the Lease, the provisions of this Second Amendment Lease
shall prevail. Whether or not specifically amended by this Second Amendment, all of the terms and
provisions of the Lease are hereby amended to the extent necessary to give effect to the purpose
and intent of this Second Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of the day and
year first above written.
| TENANT: | ||||||||
| IOMAI CORPORATION, a Delaware corporation |
||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| LANDLORD: | ||||||||
| ARE-20/22/1300 FIRSTFIELD QUINCE ORCHARD, LLC, a Delaware limited liability company |
||||||||
| By: | ARE-GP/VI HOLDINGS QRS CORP., | |||||||
| a Delaware corporation, | ||||||||
| managing member | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
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EXHIBIT A
EXPANSION SPACE
See attachment to this Exhibit A.
A-1
EXHIBIT B
ACKNOWLEDGMENT OF EFFECTIVE DATE
This ACKNOWLEDGMENT OF EFFECTIVE DATE is made this day of , ,
between ARE-20/22/1300 FIRSTFIELD QUINCE ORCHARD, LLC, a Delaware limited liability company
(“Landlord”), and IOMAI CORPORATION, a Delaware corporation (“Tenant”), and is attached to and made
a part of the Second Amendment to Lease dated , 2003 (the “Second Amendment”), by and between
Landlord and Tenant. Any initially capitalized terms used but not defined herein shall have the
meanings given them in the Second Amendment.
Landlord and Tenant hereby acknowledge and agree, for all purposes of the Second Amendment,
that the Effective Date of the Second Amendment is , and the termination
date of the Base Term of the Second Amendment shall be midnight on , .
IN WITNESS WHEREOF, Landlord and Tenant have executed this ACKNOWLEDGMENT OF EFFECTIVE DATE to
be effective on the date first above written.
| TENANT: | ||||||||
| IOMAI CORPORATION, a Delaware corporation |
||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| LANDLORD: | ||||||||
| ARE-20/22/1300 FIRSTFIELD QUINCE ORCHARD, LLC, a Delaware limited liability company |
||||||||
| By: | ARE-GP/VI HOLDINGS QRS CORP., | |||||||
| a Delaware corporation, | ||||||||
| managing member | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
B-1
EXHIBIT C
WORK LETTER
THIS WORK LETTER dated April ___, 2003 (this “Work Letter”) is made and entered into by and
between ARE-20/22/1300 FIRSTFIELD QUINCE ORCHARD, LLC, a Delaware limited liability company
(“Landlord”), and IOMAI CORPORATION, a Delaware corporation (“Tenant”), and is attached to and made
a part of the Lease dated December (the “Lease”), by and between Landlord and Tenant. Any initially
capitalized terms used but not defined herein shall have the meanings given them in the Lease.
1. General Requirements
(a) Tenant’s Authorized Representative. Tenant designates Rip Xxxxxx and Xxxx Xxxxx (either
such individual acting alone, “Tenant’s Representative”) as the only persons authorized to act for
Tenant pursuant to this Work Letter. Landlord shall not be obligated to respond to or act upon any
request, approval, inquiry or other communication (“Communication”) from or on behalf of Tenant in
connection with this Work Letter unless such Communication is in writing from Tenant’s
Representative. Tenant may change either Tenant’s Representative at any time upon not less than 5
business days advance written notice to Landlord. No period set forth herein for any approval of
any matter by Tenant’s Representative shall be extended by reason of any change in Tenant’s
Representative.
(b) Landlord’s Authorized Representative. Landlord designates Xxxxx Xxxxxxx (“Landlord’s
Representative”) as the only person authorized to act for Landlord pursuant to this Work Letter.
Tenant shall not be obligated to respond to or act upon any request, approval, inquiry or other
Communication from or on behalf of Landlord in connection with this Work Letter unless such
Communication is in writing from Landlord’s Representative. Landlord may change Landlord’s
Representative at any time upon not less than 5 business days advance written notice to Tenant. No
period set forth herein for any approval of any matter by Landlord’s Representative shall be
extended by reason of any change in Landlord’s Representative.
(c) Architects, Consultants and Contractors. Landlord and Tenant hereby acknowledge and
agree that the architect (the “Tl Architect”) for the Lab Space Improvements (as defined below),
the general contractor and any subcontractors for the Lab Space Improvements shall be selected by
Tenant, subject to Landlord’s approval, which approval shall not be unreasonably withheld,
conditioned or delayed.
(d) Development Schedule. The Lab Space Improvements may be completed in one or more phases,
and the schedule for design and development of each phase of the Lab Space Improvements, including
without limitation the time periods for delivery of construction documents and performance, shall
be in substantially the form attached hereto as Schedule A (each development schedule is
herein a “Development Schedule”).
2. Lab Space Improvements
(a) Lab Space Improvements Defined. As used herein, “Lab Space Improvements” shall mean all
improvements to any additional laboratory space within the Premises and any auxiliary support areas
to such additional laboratory space desired by Tenant of a fixed and permanent nature. Other than
funding the Aggregate Tl Allowance (as defined below) as provided herein, Landlord shall not have
any obligation whatsoever with respect to the finishing of the Premises for Tenant’s use and
occupancy.
(b) Tenant’s Space Plans. For each phase of the Lab Space Improvements, Tenant shall deliver
to Landlord schematic drawings and outline specifications (the “Tl Design Drawings”) detailing
Tenant’s requirements for such phase of the Lab Space Improvements. The TI Design Drawings for the
first phase of the Lab Space Improvements shall be delivered to Landlord within 120 business days
of the date hereof. Not more than 10 business days following Landlord’s receipt of any such TI
Design Drawings, Landlord shall deliver to Tenant the written objections, questions or comments of
Landlord and the Tl Architect with regard to such Tl Design Drawings. Tenant shall cause such Tl
Design Drawings to be revised to address such written comments and shall resubmit said drawings to
Landlord for approval within 10 business days thereafter. Such process shall continue until
Landlord has approved the applicable Tl Design Drawings.
(c) Working Drawings. Not later than 30 business days following the approval of the Tl Design
Drawings by Landlord, Tenant shall cause the Tl Architect to prepare and deliver to Landlord for
review and comment construction plans, specifications and drawings for the applicable Lab Space
Improvements (“Tl Construction Drawings”), which Tl Construction Drawings shall be prepared
substantially in accordance with the Tl Design Drawings. Tenant shall be solely responsible for
ensuring that the Tl Construction Drawings reflect Tenant’s requirements for the applicable Lab
Space Improvements. Landlord shall deliver its written comments on the Tl Construction Drawings
to Tenant not later than 10 business days after Landlord’s receipt of the same; provided, however,
that Landlord may not disapprove any matter that is consistent with the Tl Design Drawings. Tenant
and the Tl Architect shall consider all such comments in good faith and shall, within 10 business
days after receipt, notify Landlord how Tenant proposes to respond to such comments. Any disputes
in connection with such comments shall be resolved in accordance with Section 2(d) hereof.
Provided that the design reflected in the Tl Construction Drawings is consistent with the Tl Design
Drawings, Landlord shall approve the Tl Construction Drawings submitted by Tenant. Once approved
by Landlord, subject to the provisions of Section 2(d) below, Tenant shall not materially modify
the Tl Construction Drawings except as may be reasonably required in connection with the issuance
of the Tl Permit (as defined in Section 4(b) below).
(d) Approval and Completion. Upon any dispute regarding the design of the Lab Space
Improvements, which is not settled within 10 business days after notice of such dispute is
delivered by one party to the other, Tenant shall make the final decision regarding the design of
the Lab Space Improvements, provided Tenant acts reasonably and such final decision is either
consistent with or a compromise between Landlord’s and Tenant’s positions with respect to such
dispute, provided further that all costs and expenses resulting from any such decision by Tenant
shall be payable out of the Tl Fund, as defined in Section 6(d) below. Any changes to the Tl
Construction Drawings following Landlord’s and Tenant’s approval of same requested by Tenant shall
be processed as provided in Section 5 hereof.
3. [Intentionally Deleted]
4. Performance of Tenant’s Work
(a) Definition of Tenant’s Work. As used herein, “Tenant’s Work” shall mean the work of
constructing the applicable phase of Lab Space Improvements.
(b) Commencement and Permitting of Tenant’s Work. Tenant shall commence construction of each
phase of the Lab Space Improvements upon obtaining a building permit (the “Tl Permit”) authorizing
the construction of the applicable phase of Lab Space Improvements consistent with the Tl
Construction Drawings approved by Landlord. The cost of obtaining the Tl Permit shall be payable
from the Tl Fund. Consistent with its obligations under this Work Letter and to the extent not
detrimental to Landlord’s interests, Landlord shall assist Tenant in obtaining the Tl Permit.
(c) Selection of Materials, Etc. Where more than one type of material or structure is
indicated on the Tl Construction Drawings approved by Tenant and Landlord, the option will be
within Tenant’s reasonable discretion.
(d) Completion of Tenant’s Work. Tenant’s Work shall be deemed substantially complete when
the Tenant’s Work is completed in a good and workmanlike manner in accordance with the TI Permit,
subject only to Minor Variations and normal “punch list” items of a non-material nature which do
not interfere with the use of the Premises (“Substantial Completion”). For purposes of this Work
Letter, “Minor Variations” shall mean any modifications reasonably required: (i) to comply with
all applicable Legal Requirements and/or to obtain or to comply with any required permit; (ii) to
comport with good design, engineering, and construction practices which are not material; or (iii)
to make reasonable adjustments for field deviations or conditions encountered during the
construction of Tenant’s Work.
5. Changes. Any changes requested by Tenant to the Lab Space Improvements after the delivery and
approval by Landlord of the Tl Design Drawings, shall be requested and instituted in accordance
with the provisions of this Section 5 and shall be subject to the written approval of Landlord,
such approval not to be unreasonably withheld, conditioned or delayed.
(a) Tenant’s Right to Request Changes. If Tenant shall request changes (“Changes”), Tenant
shall request such Changes by notifying Landlord in writing in substantially the same form as the
AIA standard change order form (a “Change Request”), which Change Request shall detail the nature
and extent of any such Change. Such Change Request must be signed by Tenant’s Representative.
Landlord shall review and approve or disapprove such Change Request within 10 business days
thereafter, provided that Landlord’s approval shall not be unreasonably withheld, conditioned or
delayed.
(b) Implementation of Changes. If Landlord approves such Change and Tenant deposits with
Landlord any Excess Tl Costs (as defined in Section 6(d) below) required in connection with such
Change, Tenant may cause the approved Change to be instituted.
6. Costs
(a) Budget For Lab Space Improvements. Before the commencement of construction of any phase
of the Lab Space Improvements, Tenant shall obtain a detailed breakdown, by trade, of the costs
incurred or which will be incurred, in connection with the design and construction of the
applicable Tenant’s Work (the “Budget”). The Budget shall be based upon the Tl Construction
Drawings approved by Landlord and shall include a payment to Landlord of administrative rent
(“Administrative Rent”) equal to 3.0% of the hard construction related costs of the Lab Space
Improvements for monitoring and inspecting the construction of Tenant’s Work, which sum shall be
payable from the Tl Fund. If the Budget is greater than the Aggregate Tl Allowance, Tenant shall
deposit with Landlord the difference, in cash, prior to the commencement of construction of the
applicable Lab Space Improvements, for disbursement by Landlord as described in Section 6(d).
(b) Aggregate Tl Allowance. Landlord shall provide to Tenant, at Tenant’s election, a tenant
improvement allowance (collectively, the “Aggregate Tl Allowance”) as follows:
(i) a tenant improvement allowance (the “TI Allowance”) in the maximum amount of $2 per
rentable square foot for the Expansion Space in the Premises, or $29,010 in the aggregate, which is
included in the Base Rent set forth in the Second Amendment and which may, at Tenant’s option as
provided in Section 6 of the Second Amendment, be used in connection with the Lab Space
Improvements; and
(ii) an additional tenant improvement allowance (the “Additional TIA”) in the maximum amount
of $60 per rentable square foot in the Premises, or $870,300 in the aggregate, which shall, to the
extent used, result in adjustments to the Base Rent as set forth in Section 2(d) of the Second
Amendment.
Before commencing any Tenant’s Work, Tenant shall notify Landlord how much Additional TIA Tenant
has elected to receive from Landlord and how much of the TI Allowance Tenant has elected to use
towards the particular phase of the Lab Space Improvements. Such election shall be final and
binding on Tenant, and may not thereafter be modified without Landlord’s consent, which may be
granted or withheld in Landlord’s sole and absolute discretion. The Aggregate Tl Allowance with
respect to the Lab Space Improvements only shall be disbursed in accordance with this Work Letter.
(c) Costs Includable in Tl Fund. The Tl Fund shall be used solely for the payment of design
and construction costs in connection with the construction of the Lab Space Improvements,
including, without limitation, the cost of preparing the Tl Design Drawings and the Tl Construction
Drawings, all costs set forth in the Budget, including Landlord’s Administrative Rent, and the cost
of Changes (collectively, “Tl Costs”). Notwithstanding anything to the contrary contained herein,
the Tl Fund shall not be used to purchase any furniture, personal property or other non-Building
System materials or equipment, including, but not be limited to, biological safety cabinets and
other scientific equipment not incorporated into the Improvements.
(d) Excess Tl Costs. It is understood and agreed that Landlord is under no obligation to bear
any portion of the cost of any of the Lab Space Improvements except to the extent of the Aggregate
Tl Allowance. If at any time and from time-to-time, the remaining Tl Costs under the Budget exceed
the remaining unexpended Aggregate Tl Allowance, Tenant shall deposit with Landlord, as a condition
precedent to Landlord’s obligation to fund the Aggregate Tl Allowance, 100% of the then current Tl
Cost in excess of the remaining Aggregate Tl Allowance (“Excess Tl Costs”). If Tenant fails to
deposit, or is late in depositing, any Excess Tl Costs amount with Landlord, Landlord shall have
all of the rights and remedies set forth in the Lease for nonpayment of Rent (including, but not
limited to, the right to interest at the Default Rate and the right to assess a late charge), and
for purposes of any litigation instituted with regard to such amounts the same will be considered
Rent. Such deposit of Excess Tl Costs, together with the remaining Aggregate Tl Allowance, is
herein referred to as the “Tl Fund”. Funds so deposited by Tenant shall be the first thereafter
disbursed to pay Tl Costs. Notwithstanding anything to the contrary set forth in this Section
6(d), Tenant shall be fully and solely liable for Tl Costs and the cost of Minor Variations in
excess of the Aggregate Tl Allowance. If upon Substantial Completion of the Lab Space
Improvements and the payment of all sums due in connection therewith there remains any undisbursed
Tl Fund, Tenant shall be entitled to such undisbursed Tl Fund solely to the extent of any Excess Tl
Costs deposit Tenant has actually made with Landlord.
(e) Payment for Tl Costs. Landlord shall pay Tl Costs once a month against a draw request in
Landlord’s standard form, containing such certifications, lien waivers, inspection reports and
other matters as Landlord customarily obtains, to the extent of Landlord’s approval thereof for
payment, no later than 30 days following receipt of such draw request. Upon completion of each
phase of the Lab Space Improvements, Tenant shall deliver to Landlord: (i) sworn statements setting
forth the names of all contractors and subcontractors who did the work and final lien waivers from
all such contractors and subcontractors; and (ii) “as built” plans for such portion of the Lab
Space Improvements.
7. Miscellaneous
(a) Consents. Whenever consent or approval of either party is required under this Work
Letter, that party shall not unreasonably withhold, condition or delay such consent or approval,
except as may be expressly set forth herein to the contrary.
(b) Modification. No modification, waiver or amendment of this Work Letter or of any of its
conditions or provisions shall be binding upon Landlord or Tenant unless in writing signed by
Landlord and Tenant.
(c) Counterparts. This Work Letter may be executed in any number of counterparts but all
counterparts taken together shall constitute a single document.
(d) Governing Law. This Work Letter shall be governed by, construed and enforced in
accordance with the internal laws of the state in which the Premises are located, without regard to
choice of law principles of such State.
(e) Time of the Essence. Time is of the essence of this Work Letter and of each and all
provisions thereof.
(f) Default. Notwithstanding anything set forth herein or in the Lease to the contrary,
Landlord shall not have any obligation to perform any work hereunder or to fund any portion of the
Tl Fund during any period Tenant is in Default under the Lease.
(g) Severability. If any term or provision of this Work Letter is declared invalid or
unenforceable, the remainder of this Work Letter shall not be affected by such determination and
shall continue to be valid and enforceable.
(h) Merger. All understandings and agreements, oral or written, heretofore made between the
parties hereto and relating to Tenant’s Work are merged in this Work Letter, which alone (but
inclusive of provisions of the Lease incorporated herein and the final approved constructions
drawings and specifications prepared pursuant hereto) fully and completely expresses the agreement
between Landlord and Tenant with regard to the matters set forth in this Work Letter.
(i) Entire Agreement. This Work Letter is made as a part of and pursuant to the Lease and,
together with the Lease, constitutes the entire agreement of the parties with respect to the
subject matter hereof. This Work Letter is subject to all of the terms and limitation set forth in
the Lease, and neither party shall have any rights or remedies under this Work Letter separate and
apart from their respective remedies pursuant to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Work Letter to be effective on the
date first above written.
| TENANT: | ||||||||
| IOMAI CORPORATION, a Delaware corporation |
||||||||
| By: | ||||||||
| Its: | ||||||||
| LANDLORD: | ||||||||||
| ARE-20/22/1300 FIRSTFIELD QUINCE ORCHARD, LLC, a Delaware limited liability company | ||||||||||
| By: | ARE-GP/VI Holdings QRS Corp., | |||||||||
| a Delaware corporation, | ||||||||||
| By: | ||||||||||
| Its: | ||||||||||
SCHEDULE A TO WORK LETTER
Development Schedule
| Event | Date | |
Delivery of space plans for TI Design Drawings pursuant to Section 2(b) of the Work Letter |
||
Delivery of TI Construction Drawings pursuant to Section 2(c) of the Work Letter |
||
Commence construction of phase Lab Space Improvements |
||
Substantial Completion of phase Lab Space Improvements |
||
Issuance of Temporary Certificate of Occupancy |
EXHIBIT D
ADDITIONAL ITEMS OF TENANT’S PROPERTY
None, except as noted below:
