LEASE AGREEMENT
Exhibit 10.11.1
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ORIGINAL
THIS LEASE AGREEMENT is made this 18th day of December, 2000, between
ARE-20/22/1300 FIRSTFIELD QUINCE ORCHARD, LLC, a Delaware limited liability company (“Landlord”),
and IOMAI CORPORATION, a Delaware corporation (“Tenant”).
Address:
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00 Xxxxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx | |
Premises:
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That portion of the Project, containing approximately 12,288 rentable square feet, as determined by Landlord, as shown on Exhibit A. | |
Project:
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The real property on which the building in which the Premises are located, together with all improvements thereon and appurtenances thereto as described on Exhibit B. |
Base Rent: $16,384, per month Rentable Area of Premises: 12,288 sq. ft.
Rentable Area of Project: 54,918 sq. ft. Tenant’s Share of Operating Expenses: 22.38%
Security Deposit: $98,304 Commencement Date: December 18, 2000
Rent Commencement Date: June 1, 2001
Rent Adjustment Percentage: Greater of 3.5% -or the CPI Adjustment Percentage, but not to exceed
5.0%
Base Term:
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Beginning on the Rent Commencement Date and ending 60 months from the first day of the first full month of the Term (as defined in Section 2) hereof | |
Permitted Use:
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research and development laboratory, related office and other related uses consistent with the character of the Project and otherwise in compliance with the provisions of Section 7 hereof. |
Address for Rent Payment:
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Landlord’s Notice Address: | |
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 Attention: Accounts Receivable |
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 Attention: General Counsel |
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Tenant’s Notice Address: lomai Corporation 0000 Xxxxxxxxxxxx Xxxxxx, X.X. Xxxxxxxxxx, X.X. 00000 Attention: President |
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The following Exhibits and Addenda are attached hereto and incorporated herein by this reference:
[ x ] EXHIBIT A - PREMISES DESCRIPTION [ x ] EXHIBIT C - WORK LETTER [ x ] EXHIBIT E - RULES AND REGULATIONS [ x ] EXHIBIT G - ESTOPPEL CERTIFICATE |
[ x ] EXHIBIT B - DESCRIPTION OF PROJECT [ x ] EXHIBIT D - COMMENCEMENT DATE [ x ] EXHIBIT F - TENANTS PERSONAL PROPERTY [ x ] EXHIBIT H - NONDISTURBANCE AGREEMENT |
1. Lease of Premises. Upon and subject to all of the terms and conditions’ hereof, Landlord
hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord.. The
portions of the Project which are for the non-exclusive .use of tenants of the Project
are collectively referred to herein as the “Common Areas.” Landlord reserves the right to modify
Common Areas, provided that such modifications do not materially adversely affect Tenant’s use of
the Premises for the Permitted Use.
2. Delivery; Acceptance of Premises. Landlord shall use reasonable efforts to deliver the Premises
to Tenant on or before the Commencement Date
(“Delivery” or “Deliver”). If Landlord fails to timely
Deliver the Premises, Landlord shall not be liable to Tenant for any loss or damage resulting
therefrom, and this Lease shall not be terminated or terminable except as provided herein. If
Landlord does not Deliver the Premises within 60 days of the Commencement Date for any reason other
than delays caused by Force Majeure, this Lease may be terminated by Tenant by written notice to
Landlord, and if so terminated by Tenant: (a) so long as Tenant is not in default hereunder, the
Security Deposit shall be returned to Tenant, and (b) neither Landlord nor Tenant shall have any
further rights, duties or obligations under this Lease, except with respect to provisions which
expressly survive termination of this Lease. If Tenant does not elect to terminate this Lease
within 5 business days of the lapse of such 60 day period, such right to terminate this Lease shall
be waived and this Lease shall remain in full force and effect.
Upon request of Landlord, Tenant shall execute and deliver a written acknowledgment of the
Commencement Date and the expiration date of the Term when such are established in the form
attached to this Lease as Exhibit D; provided, however, Tenant’s failure to execute and deliver
such acknowledgment shall not affect Landlord’s rights hereunder. The “Term” of this Lease shall be
the Base Term and any Extension Term which Tenant may elect pursuant to Section 39 hereof.
Except as set forth in the Work Letter, if applicable: (i) Tenant shall accept the Premises in
their condition as of the Commencement Date, subject to all applicable Legal Requirements (as
defined in Section 7 hereof); -(ii) Landlord shall have no obligation for any defects in the
Premises; and (iii) Tenant’s taking possession of the Premises shall be conclusive evidence that
Tenant accepts the Premises and that the Premises were in good condition at the time possession was
taken. Any occupancy of the Premises by Tenant before the Commencement Date shall be subject to all
of the terms and conditions of this Lease.
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Tenant agrees and acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the condition of all or any portion of the Premises or
the Project, and/or the suitability of the Premises or the Project for the conduct of Tenant’s
business, and Tenant waives any implied warranty that the Premises or the Project are suitable for
the Permitted Use. This Lease constitutes the complete agreement of Landlord and Tenant with
respect to the subject matter hereof and supersedes any and all prior representations, inducements,
promises, agreements, understandings and negotiations which are not contained herein. Landlord in
executing this Lease does so in reliance upon Tenant’s representations, warranties, acknowledgments
and agreements contained herein.
3. Rent.
(a) Base Rent. The first month’s Base Rent and the Security Deposit shall be due and payable
on delivery of an executed copy of this Lease to Landlord. Tenant shall pay to Landlord in advance,
without demand, abatement, deduction or set-off, monthly installments of Base Rent on or before the
first day of each calendar month from and after the Rent Commencement Date, in lawful money of the
United States of America, at the office of Landlord for payment of Rent set forth above, or to such
other person or at such other place as Landlord may from time to time designate in writing.
Payments of Base Rent for any fractional calendar month shall be prorated. The obligation of Tenant
to pay Base Rent and other sums to Landlord and the obligations of Landlord under this Lease are
independent obligations. Tenant shall have no right at any time to xxxxx, reduce, or set-off any
Rent (as defined in Section 5) due hereunder except for any abatement as may be expressly provided
in this Lease.
(b) Additional Rent. In addition to Base Rent, Tenant agrees to pay to Landlord as additional
rent (“Additional Rent”): (i) Tenant’s Share of “Operating Expenses” (as defined in Section 5) and
(ii) any and all other amounts Tenant assumes or agrees to pay under the provisions of this Lease,
including, without limitation, any and all other sums that may become due by reason of any default
of Tenant or failure to comply with the agreements, terms, covenants and conditions of this Lease
to be performed by Tenant, after any applicable notice and cure period. In addition, if Tenant
elects not to exercise the Extension Right set forth in Section 39(a) hereof, Tenant shall pay to
Landlord as Additional Rent, upon expiration of the Lease, an amount equal to $0.5083 for each
dollar or portion thereof of the Additional Tenant Improvement Allowance disbursed by Landlord
pursuant to Section 6(b)(ii) of the Work Letter.
4. Base Rent Adjustments. Base Rent shall be increased (i) effective as of the Rent Commencement
Date, by an amount equal to $0.2085 per annum for each dollar or portion thereof of the Additional
Tenant Improvement Allowance disbursed by Landlord pursuant to Section 6(b)(ii) of the Work Letter,
and (ii) on each annual anniversary of the first day of the first full month during the Term of
this Lease (each an “Adjustment Date”) by multiplying the Base Rent payable immediately before such
Adjustment Date by the Rent Adjustment ‘Percentage and adding the resulting amount to the Base Rent
payable immediately before such Adjustment Date. Base Rent, as so adjusted, shall thereafter be due
as provided herein. Base Rent adjustments for any fractional calendar month shall be prorated. “CPI
Adjustment Percentage” means (i) a fraction, stated as a percentage, the numerator of which shall
be the Index for the calendar month 3 months before the month in which the Adjustment Date occurs,
and the denominator of which
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shall be the Index for the calendar month 3 months before the last Adjustment Date or, if no prior
Base Rent adjustment has been made, 3 months before the first day of the first full month during
the Term of this Lease, less (ii) 1.00. “Index”
means the “Consumer Price Index—All Urban Consumers
— Washington-Baltimore, DC-MD-VA-Metropolitan Area, All Items” compiled by the U.S. Department of
Labor, Bureau of Labor Statistics, (Nov. 1996 = 100). If a substantial change is made in the Index,
the revised Index shall be used, subject to such adjustments as Landlord may reasonably deem
appropriate in order to make the revised Index comparable to the prior Index. If the Bureau of
Labor Statistics ceases to publish the- Index, then the successor or most nearly comparable index,
as reasonably determined by Landlord, shall be used, subject to such adjustments as Landlord may
reasonably deem appropriate in order to make the new index comparable to the Index. Landlord shall
give Tenant written notice indicating the Base Rent, as adjusted pursuant to this Section, and the
method of computation. Failure to deliver such notice shall not reduce, xxxxx, waive or diminish
Tenant’s obligation to pay the adjusted Base Rent. If such notice is delivered to Tenant on or
after an Adjustment Date, Tenant shall pay to Landlord an amount equal to any underpayment of Base
Rent by Tenant within 15 days of Landlord’s notice to Tenant.
5. Operating Expense Payments. Landlord shall deliver to Tenant a written estimate of Operating
Expenses for each calendar year during the Term (the “Annual Estimate”), which may be revised by
Landlord from time to time during such calendar year. During each month of the Term, on the same
date that Base Rent is due, Tenant shall pay Landlord an amount equal to 1/12 of Tenant’s Share of
the Annual Estimate. Payments for any fractional calendar month shall be prorated.
The term “Operating Expenses” means all costs and expenses of any kind or description
whatsoever incurred or accrued each calendar year by Landlord with respect to the Project
(including, without duplication, Taxes (as defined in Section 9), reasonable reserves consistent
with good business practice for future repairs and replacements, capital repairs and improvements
amortized over the lesser of 7 years and the useful life of such capital items, and the costs of
Landlord’s third party property manager or, if there is no third party property manager,
administration rent in the amount of 4.0% of Base Rent), excluding only:
(a) the original construction costs of the Project and renovation prior to the date of the
Lease and costs of correcting. defects in such original construction or renovation;
(b) capital expenditures for expansion of the Project;
(c) interest, principal payments of Mortgage (as defined in Section 27) debts of Landlord,
financing costs and amortization of funds borrowed by Landlord, whether secured or unsecured and
all payments of base rent (but not taxes or operating expenses) under any ground lease or other
underlying lease of all or any portion of the Project;
(d) depreciation of the Project (except for capital improvements, the cost of which are
includable in Operating Expenses);
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(e) advertising, legal and space planning expenses and leasing commissions and other costs and
expenses incurred in procuring and leasing space to tenants for the Project, including any leasing
office maintained in the Project, free rent and construction allowances for tenants;
(f) legal and other expenses incurred in the negotiation or enforcement of leases;
(g) completing, fixturing, improving, renovating, painting, redecorating or other work, which
Landlord pays for or performs for specific tenants within their premises, and costs of correcting
defects in such work;
(h) costs of utilities outside normal business hours sold to tenants of the Project;
(i) costs to be reimbursed by other tenants of the Project or Taxes to be paid directly by
Tenant or other tenants of the Project, whether or not actually paid;
(j) salaries, wages, benefits and other compensation paid to officers and employees of
Landlord who are not assigned in whole or in part to the operation, management, maintenance or
repair of the Project;
(k) general organizational, administrative and overhead costs relating to maintaining
Landlord’s existence, either as a corporation, partnership, or other entity, including general
corporate, legal and accounting expenses;
(l) costs (including attorneys’ fees and costs of settlement, judgments and payments in lieu
thereof) incurred in connection with disputes with tenants, other occupants, or prospective
tenants, and costs and expenses, including legal fees, incurred in connection with negotiations or
disputes with employees, consultants, management agents, leasing agents, purchasers or mortgagees
of the Building;
(m) costs incurred by Landlord due to the violation by Landlord, its employees, agents or
contractors or any tenant of the terms and conditions of any lease of space in the Project or any
Legal Requirement (as defined in Section 7);
(n) tax penalties, tines or interest incurred as a result of Landlord’s negligence, inability
or unwillingness to make payment and/or to file any tax or informational returns when due, or from
Landlord’s failure to make any payment required to be made by Landlord hereunder before
delinquency;
(o) overhead and profit increment paid to Landlord or to subsidiaries or affiliates of
Landlord for goods and/or services in or to the Project to the extent the same exceeds the costs of
such goods and/or services rendered by unaffiliated third parties on a competitive basis;
(p) costs arising from Landlord’s charitable or political contributions or fine art maintained
at the Project;
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(q) costs in connection with services (including electricity), items or other benefits of a
type which are not standard for the Project and which are not available to Tenant without specific
charges therefor, but which are provided to another tenant or occupant of the Project, whether or
not such other tenant or occupant is specifically charged therefor by Landlord;
(r) costs incurred in the sale or refinancing of the Project;
(s) net income taxes of Landlord or the owner of any interest in the Project, franchise,
capital stock, gift, estate or inheritance taxes or any federal, state or local documentary taxes
imposed against the Project or any portion thereof or interest therein; and
(t) any expenses otherwise includable within Operating Expenses to the extent actually
reimbursed by persons other than tenants of the Project under leases for space in the Project,
including warranty and insurance proceeds actually received.
Within 90 days after the end of each calendar year (or such longer period as may be reasonably
required), Landlord shall furnish to Tenant a statement (an “Annual Statement”) showing in
reasonable detail: (a) the total and Tenant’s Share of actual Operating Expenses for the previous
calendar year, and (b) the total of Tenant’s payments in respect of Operating Expenses for such
year. If Tenant’s Share of actual Operating Expenses for such year exceeds Tenant’s payments of
Operating Expenses for such year, the excess shall be due and payable by Tenant as Rent within 30
days after delivery of such Annual Statement to Tenant. If Tenant’s payments of Operating Expenses
for such year exceed Tenant’s Share of actual Operating Expenses for such year Landlord shall pay
the excess to Tenant within 30 days after delivery of such Annual Statement, except that after the
expiration, or earlier termination of the Term or if Tenant is delinquent in its obligation to pay
Rent, Landlord shall pay the excess to Tenant after deducting all other amounts due Landlord.
The Annual Statement shall be final and binding upon Tenant unless Tenant, within 30 days
after Tenant’s receipt thereof, shall contest any item therein by giving written notice to
Landlord, specifying each item contested and the reason therefor. If, during such 30 day period,
Tenant reasonably and in good faith questions or contests the correctness of Landlord’s statement
of Tenant’s Share of Operating Expenses, Landlord will provide Tenant with access to Landlord’s
books and records relating to the operation of the Project and such information as Landlord
reasonably determines to be responsive to Tenant’s questions (the “Expense Information”). If after
Tenant’s review of such Expense Information, Landlord and Tenant cannot agree upon the amount of
Tenant’s Share of Operating Expenses, then Tenant shall have the right to have an independent
public accounting firm selected by Tenant from among the 5 largest in the United States (or among
the 5 largest in the Mid-Atlantic States, subject to Landlord’s approval, which approval shall not
be unreasonably withheld), working pursuant to a fee arrangement other than a contingent fee (at
Tenant’s sole cost and expense) and approved by Landlord (which approval shall not be unreasonably
withheld or delayed), audit and/or review the Expense Information for the year in question (the
“Independent Review”). The results of any such Independent Review shall be binding on Landlord and
Tenant. If the Independent Review shows that the payments actually made by Tenant with respect to
Operating Expenses for the calendar year in question exceeded Tenant’s Share of Operating Expenses
for such calendar year, Landlord shall at
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Landlord’s option either (i) credit the excess amount to the next succeeding installments of
estimated Operating Expenses or (ii) pay the excess to Tenant within 30 days after delivery of such
statement, except that after the expiration or earlier termination of the Term or if Tenant is
delinquent in its obligation to pay Rent, Landlord shall pay the excess to Tenant after deducting
all other amounts due Landlord. If the Independent Review shows that Tenant’s payments with respect
to Operating Expenses for such calendar year were less than Tenant’s Share of Operating Expenses
for the .calendar year, Tenant shall pay the deficiency to Landlord within 30 days after delivery
of such statement. If the Independent Review shows that Tenant has overpaid with respect to
Operating Expenses by more than 5% then Landlord shall reimburse Tenant for all costs incurred by
Tenant for the Independent Review. Operating Expenses for the calendar years in which Tenant’s
obligation to share therein begins and ends shall be prorated. Notwithstanding anything set forth
herein to the contrary, if the Project is not at least 95% occupied on average during any year of
the Term, Tenant’s Share of Operating Expenses for such year shall be computed as though the
Project had been 95% occupied on average during such year.
“Tenant’s Share” shall be the percentage set forth on the first page of this Lease as Tenant’s
Share as reasonably adjusted by Landlord following a measurement of the rentable square footage of
the Project and the Premises to be done by Landlord within 90 days of the Rent Commencement Date,
or as soon as reasonably possible thereafter, and shall be subject to further adjustment for
changes in the physical size of the Premises or the Project occurring thereafter. Any such
measurement shall be performed in accordance with the 1996 Standard Method of Measuring Floor Area
in Office Buildings —as adopted by the Building Owners and Managers Association (ANSI/BOMA
Z65.1-1996). Landlord may equitably increase Tenant’s Share for any item of expense or cost
reimbursable by Tenant that relates to a repair, replacement, or service that benefits only the
Premises or only a portion of the Project that includes the Premises or that varies with occupancy
or use. Base Rent, Additional Rent, Tenant’s Share of Operating Expenses and all other amounts
payable by Tenant to Landlord hereunder are collectively referred to herein as “Rent.”
6. Security Deposit. Tenant shall deposit with Landlord on the date of this Lease security (the
“Security Deposit”) for the performance of all of its obligations in the amount set forth in the
Basic Lease Provisions, which security shall be in the form of cash, or, at Tenant’s option, a
maximum amount of $49,150 of such Security Deposit may be in the form of an unconditional and
irrevocable letter of credit (the “Letter of Credit”), which Letter of Credit shall: (i) be in form
and substance satisfactory to Landlord, (ii) name Landlord as beneficiary, (iii) expressly allow
Landlord to draw upon it at any time from time to time by delivering to the issuer notice that
Landlord is entitled to draw thereunder, (iv) be drawable on an FDIC-insured financial institution
satisfactory to Landlord, and (v) be redeemable in the state of Landlord’s choice. If Tenant does
not provide Landlord with a substitute Letter of Credit complying with all of the requirements
hereof at least 10 days before the stated expiration date of the then current Letter of Credit,
Landlord shall have the right to draw upon the current Letter of Credit and hold the funds drawn as
part of the Security Deposit. The Security Deposit shall be held by Landlord as security for the
performance of Tenant’s obligations under this Lease. The Security Deposit is not an advance rental
deposit or a measure of Landlord’s damages in case of Tenant’s default. Upon each occurrence of a
Default (as defined in Section 20), Landlord may use all or any part of the Security
Deposit to pay delinquent payments due under this Lease, and the cost of any
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damage, injury, expense or liability caused by such Default, without prejudice to any other remedy
provided herein or provided by law. Upon any such use of all or any portion of the Security
Deposit, Tenant shall pay Landlord, within 5 days after demand, the amount that will restore the
Security Deposit to its original amount. Tenant hereby waives the provisions of any law, now or
hereafter in force, which provide that Landlord may claim from a security deposit only those sums
reasonably necessary to remedy defaults in the payment of Rent, to repair damage caused by Tenant
or to clean the Premises, it being agreed that Landlord may, in addition, claim those sums
reasonably necessary to compensate Landlord for any other loss or damage, foreseeable or
unforeseeable, caused by the act or omission of Tenant or any officer, employee, agent or invitee
of Tenant. Upon bankruptcy or other debtor-creditor proceedings against Tenant, the Security
Deposit shall be deemed to be applied first to the payment of Rent and other charges due Landlord
for periods prior to the filing of such proceedings. Upon any such use of all or any portion of the
Security Deposit, Tenant shall, within 5 days after demand from Landlord, restore the Security
Deposit to its original amount. If Tenant shall fully perform every provision of this Lease to be
performed by Tenant, the Security Deposit, or any balance thereof, shall be returned to Tenant (or,
at Landlord’s option, to the last assignee of Tenant’s interest hereunder) within 90 days after the
expiration or earlier termination of this Lease.
If Landlord transfers its interest in the Project or this Lease, Landlord shall either (a)
transfer any Security Deposit then held by Landlord to a person or entity assuming Landlord’s
obligations under this Section 6, or (b) return to Tenant any Security Deposit then held by
Landlord and remaining after the deductions permitted herein. Upon such transfer to such transferee
or the return of the Security Deposit to Tenant, Landlord shall have no further obligation with
respect to the Security Deposit, and Tenant’s right to the return of the Security Deposit shall
apply solely against Landlord’s transferee. The Security Deposit is not an advance rental deposit
or a measure of Landlord’s damages in case of Tenant’s default. Landlord’s obligation respecting
the Security Deposit is that of a debtor, not a trustee and; no interest shall accrue thereon.
7. Use. The Premises shall be used solely for the Permitted Use set forth in the Basic Lease
Provisions, in compliance with all laws, orders, judgments, ordinances, regulations, codes,
directives, permits, licenses, covenants and restrictions now or hereafter applicable to the
Premises, and the use and occupancy thereof (collectively, “Legal Requirements”). Tenant shall,
upon 5 days’ written notice from Landlord, discontinue any use of the Premises which is declared by
any Governmental Authority (as defined in Section 9) having jurisdiction to be a violation of any
Legal Requirement. Tenant will not use or permit the Premises to be used for any purpose or in any
manner that would void Tenant’s or Landlord’s insurance, increase the insurance risk, or cause the
disallowance of any sprinkler or other credits. Tenant shall reimburse Landlord promptly upon
demand for any additional premium charged for any such insurance policy by reason of Tenant’s
failure to comply with the provisions of this Section or otherwise caused by Tenant’s use and/or
occupancy of the Premises. Tenant will use the Premises in a careful, safe and proper manner and
will not commit waste, overload the floor or structure of the Premises, subject the Premises to use
that would damage the Premises or obstruct or interfere with the rights of Landlord or other
tenants or occupants of the Project, including conducting or giving notice of any auction,
liquidation, or going out of business sale on the Premises, or using or allowing the Premises to be
used for any unlawful purpose. Tenant shall cause any equipment
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or machinery to be installed in the Premises so as to reasonably prevent sounds or vibrations from
the Premises from extending into Common Areas, or other space in the Project. Tenant shall not
place any machinery or equipment weighing 500 pounds or more in or upon the Premises or transport
or move such items through the Common Areas of the Project or in the Project elevators without the
prior written consent of Landlord. Except as may be provided under the Work Letter, Tenant shall
not, without the prior written consent of Landlord, use the Premises in any manner which will
require ventilation, air exchange, heating, gas, steam, electricity or water beyond the existing
capacity of the Project as proportionately allocated to the Premises based upon Tenant’s Share as
usually furnished for the Permitted Use.
Tenant, at its sole expense, shall make any alterations or modifications to the interior or
the exterior of the Premises or the Project that are required by Legal Requirements (including,
without limitation, compliance of the Premises with the Americans With Disabilities Act, 42 U.S.C.
§ 12101, et seq. (together with regulations promulgated pursuant thereto, (“ADA”)) related to
Tenant’s use or occupancy of the Premises, as distinguished. from the use or occupancy of the
Project by other persons. Notwithstanding any other provision herein to the contrary, Tenant shall
be responsible for any and all demands, claims, liabilities, losses, costs, expenses, actions,
causes of action, damages or judgments, and all reasonable expenses incurred in investigating or
resisting the same (including, without limitation, reasonable attorneys’ fees, charges and
disbursements and costs of suit) (collectively, “Claims”) arising out of or in connection with
Legal Requirements, and Tenant shall indemnify, defend, hold and save Landlord harmless from and
against any and all Claims arising out of or in connection with any failure of the Premises to
comply with any Legal Requirement.
8. Holding Over. If, with Landlord’s express written consent, Tenant retains possession of the
Premises after the termination of the Term, (1) unless otherwise agreed in such written consent,
such possession shall be subject to immediate termination by Landlord at anytime, (ii) all of the
other terms and provisions of this Lease (including, without limitation, the adjustment of Base
Rent pursuant to Section 4 hereof) shall remain in full force and effect (excluding any expansion
or renewal option or other similar right or option) during such holdover period, (iii) Tenant shall
continue to pay Base Rent in the amount payable upon the date of the expiration or earlier
termination of this Lease or such other amount as Landlord may indicate, in Landlord’s sole and
absolute discretion, in such written consent, and (iv) all other payments shall continue under the
terms of this Lease. If Tenant remains in possession of the Premises after the expiration or
earlier termination of the Term without the express written consent of Landlord, (A) Tenant shall
become a tenant at sufferance upon the terms of this Lease except that the monthly rental shall be
equal to 150% of the Rent in effect during the last 30 days of the Term, and (B) Tenant shall be
responsible for all damages suffered by Landlord resulting from or occasioned by Tenant’s holding
over, including consequential damages. No holding over by Tenant, whether with or without consent
of Landlord, shall operate to extend this Lease except as otherwise expressly provided, and this
Section 8 shall not -be construed as consent for Tenant to retain possession of the Premises.
Acceptance by Landlord of Rent after the expiration of the Term or earlier termination of this
Lease shall not result in a renewal or reinstatement of this Lease.
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9. Taxes. Landlord shall pay, as part of Operating Expenses, all taxes, levies, assessments and
governmental charges of any kind (collectively referred to as “Taxes”) imposed by any federal,
state, regional, municipal, local or other governmental authority or agency, including, without
limitation, quasi-public agencies (collectively, “Governmental Authority”) during the Term,
including, without limitation, all Taxes: (i) imposed on or measured by or based, in whole or in
part, on rent payable to Landlord under this Lease and/or from the rental by Landlord of the
Project or any portion thereof, or (ii) based on the square footage, assessed value or other
measure or evaluation of any kind of the Premises or the Project, or (iii) assessed or imposed by
or on the operation or maintenance of any portion of the Premises or the Project, including
parking, or (iv) assessed or imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations thereof, promulgated by, any Governmental Authority, or (v) imposed
as a license or other fee on Landlord’s business of leasing space in the Project. Landlord may
contest by appropriate legal proceedings the amount, validity, or application of any Taxes or liens
securing Taxes. Taxes shall not include any net income taxes imposed on Landlord unless such net
income taxes are in substitution for any Taxes payable hereunder. If any such Tax is levied or
assessed directly against Tenant, then Tenant shall be responsible for and shall pay the same at
such times and in such manner as the taxing authority shall require. Tenant shall pay, prior to
delinquency, any and all Taxes levied or assessed against any personal property or trade fixtures
placed by Tenant in the Premises, whether levied or assessed against Landlord or Tenant. If any
Taxes on Tenant’s personal property or trade fixtures are levied against Landlord or Landlord’s
property, or if the assessed valuation of the Project is increased by a value attributable to
improvements in or alterations to the Premises, whether owned by Landlord or Tenant and whether or
not affixed to the real property so as to become a part thereof, higher than the base valuation on
which Landlord from time-to-time allocates Taxes to all tenants in the Project, Landlord shall have
the right, but not the obligation, to pay such Taxes. Landlord’s determination of any excess
assessed valuation shall be binding and conclusive, absent manifest error. The amount of any such
payment by Landlord shall constitute Additional Rent due from Tenant to Landlord immediately upon
demand.
10. Parking. Tenant shall have the right, at no additional charge to Tenant during the Base Term
and for any additional charge established during the Extension Term pursuant to Section 39
hereof, to park in common with other tenants of the Project pro rata in accordance with the
rentable area of the Premises and the rentable areas of the Project occupied by such other tenants
in those areas designated for non-reserved parking, subject in each case to Landlord’s rules and
regulations. Landlord may allocate parking spaces among Tenant and other tenants in the Project pro
rata as described above if Landlord determines that such parking facilities are becoming crowded.
Landlord shall not be responsible for enforcing Tenant’s parking rights against any third parties,
including other tenants of the Project.
11. Utilities, Services. Landlord shall provide, subject to the terms of this Section 11, water,
electricity, heat, light, power, telephone, sewer, and other utilities (including gas and fire
sprinklers to the extent the Project is plumbed for such services), and refuse and trash collection
(collectively, “Utilities”); provided, however, that Landlord shall not be obligated to
provide or maintain any inside wiring for telephone or communication services in the Premises.
‘Landlord shall pay, as Operating Expenses or subject to Tenant’s reimbursement obligation, for all
Utilities used on the Premises, all maintenance charges for Utilities, and any storm sewer
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charges or other similar charges for Utilities imposed by any Governmental Authority or Utility
provider, and any taxes, penalties, surcharges or similar charges thereon. Landlord may cause, at
Tenant’s expense, any Utilities to be separately metered or charged directly to Tenant by the
provider. Tenant shall pay directly to the Utility provider, prior to delinquency, any separately
metered Utilities and services which may be furnished to Tenant or the Premises during the Term.
Tenant shall pay, as part of Operating Expenses, its share of all charges for jointly metered
Utilities based upon consumption, as reasonably determined by Landlord. No interruption or failure
of Utilities, from any cause whatsoever other than Landlord’s willful misconduct, shall result in
eviction or constructive eviction of Tenant, termination of this Lease or the abatement of Rent.
Tenant agrees to limit use of water and sewer with respect to Common Areas to normal restroom use.
12. Alterations and Tenant’s Property. Any alterations, additions, or improvements made to the
Premises by or on behalf of Tenant, including additional locks or bolts of any kind or nature upon
any doors or windows in the Premises, but excluding installation, removal or realignment of
furniture systems (other than removal of furniture systems owned or paid for by Landlord) not
involving any modifications to the structure or connections (other then by ordinary plugs or jacks)
to Building Systems (as defined in Section 13) (“Alterations”) shall be subject to Landlord’s prior
written consent, which may be given or withheld in Landlord’s (i) sole discretion if any such
Alteration affects the structure or Building Systems, or (ii) reasonable .discretion if any such
Alteration does not affect the structure or Building Systems. If Landlord approves any Alterations,
Landlord may impose such conditions on Tenant in connection with the commencement, performance and
completion of such Alterations as Landlord may deem appropriate in Landlord’s sole and absolute
discretion. Any request for approval shall be in writing, delivered not less than 15 business days
in advance of any proposed construction, and accompanied by plans, specifications, bid proposals,
work contracts and such other information concerning the nature and cost of the alterations as may
be reasonably requested by Landlord, including the identities and mailing addresses of all persons
performing work or supplying materials. Landlord’s right to review plans and specifications and to
monitor construction shall be solely for its own benefit, and Landlord shall have no duty to ensure
that such plans and specifications or construction comply with applicable Legal Requirements.
Tenant shall cause, at its sole cost and expense, all Alterations to comply with insurance
requirements and with Legal Requirements and shall implement at its sole cost and expense any
alteration or modification required by Legal Requirements as a result of any Alterations. Tenant
shall pay to Landlord, as Additional Rent, on demand an amount equal to 3% of all charges incurred
by Tenant .or its contractors or agents in connection with any Alteration to cover Landlord’s
overhead and expenses for plan review, coordination, scheduling and supervision. Before Tenant
begins any Alteration, Landlord may post on and about the Premises notices of non-responsibility
pursuant to applicable law. Tenant shall reimburse Landlord for, and indemnify and hold Landlord
harmless from, any expense incurred by Landlord by reason of faulty work done by Tenant or its
contractors, delays caused by such work, or inadequate cleanup.
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Tenant shall furnish security or make other arrangements satisfactory to Landlord to assure
payment for the completion of all Alterations work free and clear of liens, and shall provide
certificates of insurance for workers’ compensation and other coverage in amounts and from an
insurance company satisfactory to Landlord protecting Landlord against liability for personal
injury or property damage during construction. Upon completion of any Alterations, 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 any such Alteration.
Other than Tenant’s Property (hereinafter defined), all property of any kind paid for with the
TI Fund, all Alterations, real property fixtures, built-in machinery and equipment, built-in
casework 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, built-in
deionized water systems, built-in glass washing equipment, built-in autoclaves, built-in chillers,
built-in plumbing, electrical and mechanical equipment and systems, and any power generator and
transfer switch (collectively, “Installations”) shall be and shall remain the 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 as a part thereof in accordance with Section 28 following the expiration or
earlier termination of this 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 expiration or earlier termination of this Lease. If Landlord so
elects, Tenant shall remove such Installation upon the expiration or earlier termination of this
Lease and restore any damage caused by or occasioned as a result of such removal, including, when
removing any of Tenant’s Property which was plumbed, wired or otherwise connected to any of the
Building Systems, capping off all such connections behind the walls of the Premises and repairing
any holes. During any such restoration period, Tenant shall pay Rent to Landlord as provided herein
as if said space were otherwise occupied by Tenant. The term “Tenant’s Property” as used herein
shall mean (i) the items, if any, listed on Exhibit F attached hereto, (ii) any items agreed by
Landlord in writing to be included on Exhibit F in the future, and (iii) any trade fixtures,
machinery, equipment and other personal property not paid for out of the TI Fund (as defined in the
Work Letter) 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.
13. Landlord’s Repairs. Landlord, as an Operating Expense, shall maintain all of the structural,
exterior, parking and other Common Areas of the Project, including existing HVAC, plumbing, fire
sprinklers, elevators and all other building systems serving the Premises and other portions of the
Project (“Building Systems”), in good repair, reasonable wear and tear and uninsured losses and
damages caused by Tenant, or by any of Tenant’s agents, servants, employees, invitees and
contractors (collectively, “Tenant Parties”) excluded. Losses and damages caused by Tenant or any
Tenant Party shall be repaired by Landlord, to the extent not covered by insurance, at Tenant’s
sole cost and expense. Landlord reserves the right to stop Building System services when necessary
(1) by reason of accident or emergency, or (ii) for planned repairs, alterations or improvements,
which are, in the judgment of Landlord, desirable
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or necessary to be made, until said repairs, alterations or improvements shall have been completed;
provided, however, that Landlord shall use commercially reasonable efforts to minimize
disruption to Tenant’s business. Landlord shall have no responsibility or liability for failure to
supply Building System services during any such period of interruption; provided, however,
that Landlord shall give Tenant 24 hours advance notice of any planned stoppage of Building System
services for routine maintenance, repairs, alterations or improvements. Tenant shall promptly give
Landlord written notice of any repair required by Landlord pursuant to this Section, after which
Landlord shall have a reasonable opportunity to effect such repair. Landlord shall not be liable
for any failure to make any repairs or to perform any maintenance unless such failure shall persist
for an unreasonable time after Tenant’s written notice of the need for such repairs or maintenance.
Tenant waives its rights under any state or local law to terminate this Lease or to make such
repairs at Landlord’s expense and agrees that the parties’ respective rights with respect to such
matters shall be solely as set forth herein. Repairs required as the result of fire, earthquake,
flood, vandalism, war, or similar cause of damage or destruction shall be controlled by Section 18.
14. Tenant’s Repairs. Subject to Section 13 hereof, Tenant, at its expense, shall repair, ‘replace
and maintain in good condition all portions of the Premises, including, without limitation,
entries, doors, ceilings, interior windows, interior walls, the interior side of demising walls,
and any HVAC equipment serving exclusively the Premises or any other Installations. Such repair and
replacements may include capital expenditures and repairs whose benefit may extend beyond the Term.
Should Tenant fail to make any such repair or replacement or fail to maintain the Premises,
Landlord shall give Tenant notice of such failure. If Tenant fails to commence cure of such default
within 10 days of Landlord’s notice, and thereafter diligently prosecute such cure to completion,
Landlord may perform such work and shall be reimbursed by Tenant within 10 days after demand
therefor; provided, however, that if such default by Tenant creates or could create an emergency,
Landlord may immediately commence cure of such default and shall thereafter be entitled to recover
the costs of such cure from Tenant. Subject to Sections 17 and 18, Tenant shall bear the full
uninsured cost of any repair or replacement to any part of the Project that results from damage
caused by Tenant or any Tenant Party and any repair that benefits only the Premises.
15. Mechanic’s Liens. Tenant shall discharge, by bond or otherwise, any mechanic’s lien filed
against the Premises. or against the Project for work claimed to have been done for, or materials
claimed to have been furnished to, Tenant within 10 days after the filing thereof, at Tenant’s sole
cost and shall otherwise keep the Premises and the Project free from any liens arising out of work
performed, materials furnished or obligations incurred by Tenant. Should Tenant fail to discharge
any lien described herein, Landlord shall have the right, but not the obligation, to pay such claim
or post a bond or otherwise provide security to eliminate the lien as a claim against title to the
Project and the cost thereof shall be immediately due from Tenant as Additional Rent. If Tenant
shall lease or finance the acquisition of office equipment, furnishings, or other personal property
of a removable nature utilized by Tenant in the operation of Tenant’s business, Tenant warrants
that any Uniform Commercial Code Financing Statement executed by Tenant will upon its face or by
exhibit thereto indicate that such Financing Statement is applicable only to removable personal
property of Tenant located within the Premises. In no event shall the address of the Project be
furnished on the statement without
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qualifying language as to applicability of the lien only to removable personal property, located in
an identified suite held by Tenant.
16. Indemnification. Tenant hereby indemnifies and agrees to defend, save and hold Landlord
harmless from and against any and all Claims for injury or death to persons or damage to property
occurring within or about the Premises, arising directly or indirectly out of use or occupancy of
the Premises or a breach or default by Tenant in the performance of any of its obligations
hereunder, unless caused solely by the willful misconduct or gross negligence of Landlord. Landlord
shall not be liable to Tenant for, and Tenant assumes all risk of damage to, personal property
(including, without limitation, loss of records kept within the Premises). Tenant further waives
any and all Claims for injury to Tenant’s business or loss of income relating to any such damage or
destruction of personal property (including, without limitation, any loss of records). Landlord
shall not be liable for any damages arising from any act, omission or neglect of any tenant in the
Project or of any other third party.
17. Insurance. Landlord shall maintain all insurance against any peril generally included within
the classification “Fire and Extended Coverage,” sprinkler damage (if applicable), vandalism and
malicious mischief covering the full replacement cost of the Project or such lesser coverage amount
as Landlord may elect provided such coverage amount is not less than 90% of such full
replacement cost. Landlord shall further carry commercial general liability insurance with a
single loss limit of not less than $2,000,000 for death or bodily injury, or property damage with
respect to the Project. Landlord may, but is not obligated to, maintain such other insurance and
additional coverages as it may deem necessary, including, but not limited to, flood, environmental
hazard and earthquake, loss or failure of building equipment, errors and omissions, rental loss
during the period of ‘repair or rebuilding, workers’ compensation insurance and fidelity bonds for
employees employed to perform services and insurance for any improvements installed by Tenant or
which are in addition to the standard improvements customarily furnished by Landlord without regard
to whether or not such are made a part of the Project. All such insurance shall be included as part
of the Operating Expenses. The Project may be included in a blanket policy (in which case the cost
of such insurance allocable to the Project will be determined by Landlord based upon the insurer’s
cost calculations). Tenant shall also reimburse Landlord for any increased premiums or additional
insurance which Landlord reasonably deems necessary as a result of Tenant’s use of the Premises.
Tenant, at its sole cost and expense, shall maintain during the Tern: all risk property
insurance covering the full replacement cost of all property and improvements installed or placed
in the Premises by Tenant at Tenant’s expense; workers’ compensation insurance with no less than
the minimum limits required by law; employer’s liability insurance with such limits as required by
law; and commercial general liability insurance, with a minimum limit of not less than $2,000,000
per occurrence for death or bodily injury and not less than $1,000,000 for property damage with
respect to the Premises. The commercial general liability insurance policies shall name Landlord,
its officers, directors, employees, managers, agents, invitees and contractors (collectively,
“Landlord Parties”), as additional insureds; insure on an occurrence and not a claims-made basis;
be issued by insurance companies which have a rating of not less than policyholder rating of A and
financial category rating of at least Class XII in “Best’s Insurance Guide”; shall not be
cancelable unless 30 days prior written notice shall have been
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given to Landlord from the insurer, contain a hostile fire endorsement and a contractual liability
endorsement; and provide primary coverage to Landlord (any policy issued to Landlord providing
duplicate or similar coverage shall be deemed excess over Tenant’s policies). Such policies or
certificates thereof shall be delivered to Landlord by Tenant upon commencement of the Term and
upon each renewal of said insurance. Tenant’s policy may be a “blanket policy” which specifically
provides that the amount of insurance shall not be prejudiced by other losses covered by the
policy. Tenant shall, at least 20 days prior to the expiration of such policies, furnish Landlord
with renewals or binders. Tenant agrees that if Tenant does not take out and maintain such
insurance, Landlord may (but shall not be required to) procure said insurance on Tenant’s behalf
and at its cost to be paid as Additional Rent.
In each instance where insurance is to name Landlord as an additional insured, Tenant shall
upon written request of Landlord also designate and furnish certificates so evidencing Landlord as
additional insured to: (i) any lender of Landlord holding a security interest in the Project or any
portion thereof, (ii) the landlord under any lease wherein Landlord is tenant of the real property
on which the Project is located, if the interest of Landlord is or shall become that of a tenant
under a ground or other underlying lease rather than that of a fee owner, and/or (iii) any
management company retained by Landlord to manage the Project.
The property insurance obtained by Landlord and Tenant shall include a waiver of subrogation
by the insurers and all rights based upon an assignment from its insured, against Landlord or
Tenant, and their respective officers, directors, employees, managers, agents, invitees and
contractors (“Related Parties”), in connection with any loss or damage thereby insured against.
Neither party nor its respective Related Parties shall be liable to the other for loss or damage
caused by any risk insured against under property insurance required to be maintained hereunder,
and each party waives any claims against the other party, and its respective Related Parties, for
such loss or damage. The failure of a party to insure its property shall not void this waiver.
Landlord and its respective Related Parties shall not be liable for, and Tenant hereby waives all
claims against such parties for, business interruption and losses occasioned thereby sustained by
Tenant or any person claiming through Tenant resulting from any accident or occurrence in or upon
the Premises or the Project from any cause whatsoever. If the foregoing waivers shall contravene
any law with respect to exculpatory agreements, the liability of Landlord or Tenant shall be deemed
not released but shall be secondary to the other’s insurer.
Landlord may require insurance policy limits to be raised to conform with requirements of
Landlord’s lender and/or to bring coverage limits to levels then being generally required of new
‘tenants within the Project.
18. Restoration. If at any time during the Term the Project or the Premises are damaged or
destroyed by a fire or other insured casualty, Landlord shall notify Tenant within 60 days after
discovery of such damage as to the amount of time Landlord reasonably estimates it will take to
restore the Project or the Premises, as applicable (the “Restoration Period”). If the Restoration
Period is estimated to exceed 9 months (the “Maximum Restoration Period”), Landlord or Tenant may,
within 5 days of such notice, elect to terminate this Lease as of the date that is 75 days after
the date of discovery of such damage or destruction. Unless Landlord or
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Tenant so elects to terminate this Lease, Landlord shall, subject to receipt of sufficient
insurance proceeds (with any deductible to be treated as a current Operating Expense), promptly
restore the Premises (excluding the improvements installed by Tenant or by Landlord and paid for by
Tenant), subject to delays arising from the collection of insurance proceeds, from Force Majeure
events or as needed to obtain any license, clearance or other authorization of any kind required to
enter into and restore the Premises issued by any Governmental Authority having jurisdiction over
the use, storage, handling, treatment, generation, release, disposal, removal or remediation of
Hazardous Materials (as defined in Section 30) in, on or about the Premises (collectively referred
to herein as “Hazardous Materials Clearances”); provided, however, that if repair or
restoration of the Premises is not substantially complete as of the end of the Maximum Restoration
Period or, if longer, the Restoration Period, Landlord may, in its sole and absolute discretion,
elect not to proceed with such repair and restoration, in which event Landlord shall be relieved of
its obligation to make such repairs or restoration and this Lease shall terminate as of the date
that is 75 days after the later of: (i) discovery of such damage or destruction, or (ii) the date
all required Hazardous Materials Clearances are obtained.
Tenant, at its expense, shall promptly perform, subject to delays arising from the collection
of insurance proceeds, from Force Majeure (as defined in Section 34) events or to obtain Hazardous
Material Clearances, all repairs or restoration not required to be done by Landlord and shall
promptly re-enter the Premises and commence doing business in accordance with this Lease.
Notwithstanding the foregoing, Landlord may terminate this Lease if the Premises are damaged during
the last 2 years of the Term and Landlord reasonably estimates that it will take more than one
month to repair such damage, or if insurance proceeds are not available for such restoration. Rent
shall be abated from the date all required Hazardous Material Clearances are obtained until the
Premises are repaired and restored, in the proportion which the area of the Premises, if any, which
is not usable by Tenant bears to the total area of the Premises, unless Landlord provides Tenant
with other space during the period of repair that is suitable for the temporary conduct of Tenant’s
business. Such abatement shall be the sole remedy of Tenant, and except as provided herein, Tenant
waives any right to terminate the Lease by reason of damage or casualty loss.
The provisions of this Lease, including this Section 18, constitute an express agreement
between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any
part of the Premises, or any other portion of the Project, and any statute or regulation which is
now or may hereafter be in effect shall have no application to this Lease or any damage or
destruction to all or any part of the Premises or any other portion of the Project, the parties
hereto expressly agreeing that this Section 18 sets forth their entire understanding and agreement
with respect to such matters.
19. Condemnation. If the whole or any material part of the Premises or the Project is taken for
any public or quasi-public use under governmental law, ordinance, or regulation, or by right of
eminent domain, or by private purchase in lieu thereof (a
“Taking” or “Taken”), and the Taking would in Landlord’s reasonable judgment either prevent or materially interfere with Tenant’s
use of the Premises or materially interfere with or impair Landlord’s ownership or operation of the
Project, then upon written notice by Landlord this Lease shall terminate and Rent shall be
apportioned as of said date. If part of the Premises shall be Taken, and this Lease is
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not terminated as provided above, Landlord shall promptly restore the Premises and the Project as
nearly as is commercially reasonable under the circumstances to their condition prior to such
partial Taking and the rentable square footage of the Building, the rentable square footage of the
Premises, Tenant’s Share of Operating Expenses and the Rent payable hereunder during the unexpired
Term shall be reduced to such extent as may be fair and reasonable under the circumstances. Upon
any such Taking, Landlord shall be entitled to receive the entire price or award from any such
Taking without any payment to Tenant, and Tenant hereby assigns to Landlord Tenant’s interest, if
any, in such award. Tenant shall have the right, to the extent that same shall not diminish
Landlord’s award, to make a separate claim against the condemning authority (but not Landlord) for
such compensation as may be separately awarded or recoverable by Tenant for moving expenses and
damage to Tenant’s trade fixtures, if a separate award for such items is made to Tenant. Tenant
hereby waives any and all rights it might otherwise have pursuant to any provision of state law to
terminate this Lease upon a partial Taking of the Premises or the Project.
20. Events of Default. Each of the following events shall be a default (“Default”) by Tenant under
this Lease:
(a) Payment Defaults. Tenant shall fail to pay any installment of Rent or any other payment
hereunder when due.
(b) Insurance. Any insurance required to be maintained by Tenant pursuant to this Lease shall
be canceled or terminated or shall expire or shall be reduced or materially changed, or Landlord
shall receive a notice of nonrenewal of any such insurance and Tenant shall fail to obtain
replacement insurance at least 20 days before the expiration of the current coverage.
(c) Abandonment. Tenant shall abandon the Premises.
(d) Improper Transfer. Tenant shall assign, sublease or otherwise transfer or attempt to
transfer all or any portion of Tenant’s interest in this Lease or the Premises except as expressly
permitted herein, or Tenant’s interest in this Lease shall be attached, executed upon, or otherwise
judicially seized and such action is not released within 90 days of the action.
(e) Liens. Tenant shall fail to discharge or otherwise obtain the release of any lien placed
upon the Premises in violation of this Lease within 30 days after any such lien is filed against
the Premises.
(f) Insolvency Events. Tenant or any guarantor or surety of Tenant’s obligations hereunder
shall: (A) make a general assignment for the benefit of creditors; (B) commence any case,
proceeding or other action seeking to have an order for relief entered on its behalf as a debtor or
to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or of any substantial part of its
property (collectively a “Proceeding for Relief”); (C) become the subject of any Proceeding for
Relief which is not dismissed within 90 days of its filing or entry; or (D) die or suffer a legal
disability (if Tenant, guarantor, or surety is an individual) or be dissolved or otherwise fail to
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maintain its legal existence (if Tenant, guarantor or surety is a corporation, partnership or other
entity).
(g) Estoppel Certificate or Subordination Agreement. Tenant fails to execute any document
required from Tenant under Sections 23 or 27 within 5 days
after a second notice requesting such document.
(h) Other Defaults. Tenant shall fail to comply with any provision of this Lease other than
those specifically referred to in this Section 20, and, except as otherwise expressly provided
‘herein, such failure shall continue for a period of 10 days after written notice thereof from
Landlord to Tenant.
Any notice given under Section 20 (h) hereof shall: (i) specify the alleged default, (ii) demand
that Tenant cure such default, (iii) be in lieu of, and not in addition to, or shall be deemed to
be, any notice required under any provision of applicable law, and (iv) not be deemed a forfeiture
or a termination of this Lease unless Landlord elects otherwise in such notice; provided
that if the nature of Tenant’s default pursuant to Section 20(h) is such that it cannot be cured by
the payment of money and reasonably requires more than 10 days to cure, then Tenant shall not be
deemed to be in default if Tenant commences such cure within said 10 day period and thereafter
diligently prosecutes the same to completion; provided, however, that such cure shall be
completed no later than 30 days from the date of Landlord’s notice.
21. Landlord’s Remedies.
(a) Payment By Landlord; Interest. Upon a Default by Tenant hereunder, Landlord may, without
waiving or releasing any obligation of Tenant hereunder, make such payment or perform such act. All
sums so paid or incurred by Landlord, together with interest thereon, from the date such sums were
paid or incurred, at the annual rate equal to 12% per annum or the highest rate permitted by law
(the “Default Rate”), whichever is less, shall be payable to Landlord on demand as Additional Rent.
Nothing herein shall be construed to create or impose a duty on Landlord to mitigate any damages
resulting from Tenant’s Default hereunder.
(b) Late Payment Rent. Late payment by Tenant to Landlord of Rent and other sums due will
cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult and impracticable to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be imposed on Landlord under any
Mortgage covering the Premises. Therefore, if any installment of Rent due from Tenant is not
received by Landlord within 5 days after the date such payment is due, Tenant shall pay to Landlord
an additional sum equal to 6% of the overdue Rent as a late charge. The parties agree that this
late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of
late payment by Tenant. In addition to the late charge, Rent not paid when due shall bear interest
at the Default Rate from the 5th day after the date due until paid.
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(c) Remedies. Upon the occurrence of a Default, Landlord, at its option, without further
notice or demand to Tenant, shall have in addition to all other rights and remedies provided in
this Lease, at law or in equity, the option to pursue any one or more of the following remedies,
each and all of which shall be cumulative and nonexclusive, without any notice or demand
whatsoever.
(i) Terminate this Lease, or at Landlord’s option, Tenant’s right to possession only,
in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant
fails to do so, Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, enter upon and take possession of the Premises and expel
or remove Tenant and any other person who may be occupying the Premises or any part thereof,
without being liable for prosecution or any claim or damages therefor;
(ii) Upon any termination of this Lease, whether pursuant to the foregoing Section
21(c)(i) or otherwise, Landlord may recover from Tenant the following:
(A) The worth at the time of award of any unpaid rent which has been earned at
the time of such termination; plus
(B) The worth at the time of award of the amount by which the unpaid rent which
would have been earned after termination until the time of award exceeds the amount
of such rental loss that Tenant proves could have been reasonably avoided; plus
(C) The worth at the time of award of the amount by which the unpaid rent for
the balance of the Term after the time of award exceeds the amount of such rental
loss that Tenant proves could have been reasonably avoided; plus
(D) Any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant’s failure to perform its obligations under this Lease
or which in the ordinary course of things would be likely to result therefrom,
specifically including, but not limited to, brokerage commissions and advertising
expenses incurred, expenses of remodeling the Premises or any portion thereof for a
new tenant, whether for the same or a different use, and any special concessions
made to obtain a new tenant; and
(E) At Landlord’s election, such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable law.
The term “rent” as used in this Section 21 shall be deemed to be and to mean all sums of every
nature required to be paid by Tenant pursuant to the terms of this Lease, whether to Landlord or to
others. As used in Sections 21(c)(ii) (A) and (B), above, the “worth at the time of award” shall be
computed by allowing interest at the Default Rate. As used in Section 21(c)(ii)(C) above, the
“worth at the time of award” shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus 1%.
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(iii) Landlord may continue this Lease in effect after Tenant’s Default and recover
rent as it becomes due (Landlord and Tenant hereby agreeing that Tenant has the right to
sublet or assign hereunder, subject only to reasonable limitations). Accordingly, if
Landlord does not elect to terminate this Lease following a Default by Tenant, Landlord may,
from time to time, without terminating this Lease, enforce all of its rights and remedies
hereunder, including the right to recover all Rent as it becomes due.
(iv) Whether or not Landlord elects to terminate this Lease following a Default by
Tenant, Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord’s sole discretion, succeed to Tenant’s interest
in such subleases, licenses, concessions or arrangements. Upon Landlord’s election to
succeed to Tenant’s interest in any such subleases, licenses, concessions or arrangements,
Tenant shall, as of the date of notice by Landlord of such election, have no further right
to or interest in the rent or other consideration receivable thereunder.
(v) Independent of the exercise of any other remedy of Landlord hereunder or under
applicable law, Landlord may conduct an environmental test of the Premises as generally
described in Section 30(d) hereof, at Tenant’s expense.
(d) Effect of Exercise. Exercise by Landlord of any remedies hereunder or otherwise available
shall not be deemed to be an acceptance of surrender of the Premises and/or a termination of this
Lease by Landlord, it being understood that such surrender and/or termination can be effected only
by the express written agreement of Landlord and Tenant. Any law, usage, or custom to the contrary notwithstanding, Landlord shall have the right at all times to enforce
the provisions of this Lease in strict accordance with the terms hereof, and the failure of
Landlord at any time -to enforce its rights under this Lease strictly in accordance with same shall
not be construed as having created a custom in any way or manner contrary to the specific terms,
provisions, and covenants of this Lease or as having modified the same and shall not be deemed a
waiver .of Landlord’s right to enforce one or more of its rights in connection with any subsequent
default. A receipt by Landlord of Rent or other payment with knowledge of the breach of any
covenant hereof shall not be deemed a waiver of such breach, and no waiver by Landlord of any
provision of this Lease shall be deemed to have been made unless expressed in writing and signed by
Landlord. To the greatest extent permitted by law, Tenant waives the service of notice of
Landlord’s intention to re-enter, re-take or otherwise obtain possession of the Premises as
provided in any statute, or to institute legal proceedings to that end, and also waives all right
of redemption in case Tenant shall be dispossessed by a judgment or by warrant of any court or
judge. Any reletting of the Premises or any portion thereof shall be on such terms and conditions
as Landlord in its sole discretion may determine. Landlord shall not be liable for, nor shall
Tenant’s obligations hereunder be diminished because of, Landlord’s failure to relet the Premises
or collect rent due in respect of such reletting or otherwise to mitigate any damages arising by
reason of Tenant’s Default.
22. Assignment and Subletting.
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(a) General Prohibition. Without Landlord’s prior written consent subject to and on the
conditions described in this Section 22, Tenant shall not, directly or indirectly, voluntarily or
by operation of law, assign this Lease or sublease the Premises or any part thereof or mortgage,
pledge, or hypothecate its leasehold interest or grant any concession or license within the
Premises, and any attempt to do any of the foregoing shall be void and of no effect. So long as
Tenant is a corporation, partnership or limited liability company, the shares or other ownership
interests thereof which are not actively traded upon a stock exchange or in the over-the-counter
market, a transfer or series of transfers whereby 25% or more during any 12 month period, or 50% or
more during the Term, of the issued and outstanding shares or other ownership interests of such
corporation are, or voting control is, transferred (but excepting transfers upon deaths of
individual owners) from a person or persons or entity or entities which were owners thereof at time
of execution of this Lease to persons or entities who were not owners of shares or other ownership
interests of the corporation, partnership or limited liability company at time of execution of this
Lease, shall be deemed an assignment of this Lease. requiring the consent of Landlord as provided
in this Section 22.
(b) Permitted Transfers. If Tenant desires to assign, sublease, hypothecate or otherwise
transfer this Lease or sublet the Premises, then at least 15 business days, but not more than 45
business days, before the date Tenant desires the assignment or sublease to be effective (the
“Assignment Date”), Tenant shall give Landlord a notice (the “Assignment Notice”) containing such
information about the proposed assignee or sublessee, including the proposed use of the Premises
and any Hazardous Materials proposed to be used, stored, handled, treated, generated in or released
or disposed of from the Premises, the Assignment Date, any relationship between Tenant and the
proposed assignee or sublessee, and all material terms and conditions of the proposed assignment or
sublease, including a copy of any proposed assignment or sublease in its-final form, and such other
information as Landlord may deem reasonably necessary or appropriate to its consideration whether
to grant its consent. Landlord may, by giving written notice to Tenant within 15 business days
after receipt of the Assignment Notice: (i) grantor refuse such consent, in its sole discretion
with respect to a proposed assignment, hypothecation or other transfer or subletting of more than
(together with all other then effective subleases) 50% of the Premises, or grant or refuse such
consent, in its reasonable discretion with respect to a-proposed subletting of up to (together with
all other then effective subleases) 50% of the Premises (provided that Landlord shall further have
the right to review and approve or disapprove the proposed form of sublease prior to the effective
date of any such subletting), or (ii) terminate this Lease with respect to the space described in
the Assignment Notice as of the Assignment Date (an “Assignment Termination”). If Landlord elects
an Assignment Termination, Tenant shall have the right to withdraw such Assignment Notice by
written notice to Landlord of such election within 5 days after Landlord’s notice electing to
exercise the Assignment Termination. If Tenant withdraws such Assignment Notice, this Lease shall
continue in full force and effect. If Tenant does not withdraw such Assignment Notice, this Lease,
and the term and estate herein granted, shall terminate as of the Assignment Date with respect to
the space described in such Assignment Notice. No failure of Landlord to exercise any such option
to terminate this Lease shall be deemed to be Landlord’s consent to the proposed assignment,
sublease or other transfer. Tenant shall reimburse Landlord for all of Landlord’s reasonable
out-of-pocket expenses in connection with its consideration of any Assignment Notice.
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(c) Additional Conditions. As a condition to any such assignment or subletting, whether or
not Landlord’s consent is required, Landlord may require:
(i) that any assignee or subtenant agree, in writing at the time of such assignment or
subletting, that if Landlord gives such party notice that Tenant is in default under this
Lease, such party shall thereafter make all payments otherwise due Tenant directly to
Landlord, which payments will be received by Landlord without any liability except to credit
such payment against those due under the Lease, and any such third party shall agree to
attom to Landlord or its successors and assigns should this Lease be terminated for any
reason; provided, however, in no event shall Landlord or its successors or assigns
be obligated to accept such attomment; and
(ii) A list of Hazardous Materials, certified by the proposed assignee or sublessee to
be true and correct, which the proposed assignee or sublessee intends to use, store, handle,
treat, generate in or release or dispose of from the Premises, together with copies of all
documents relating to such use, storage, handling, treatment, generation, release or
disposal of Hazardous Materials by the proposed assignee or subtenant in the Premises or on
the Project, prior to the proposed assignment or subletting, including, without limitation:
permits; approvals; reports and correspondence; storage and management plans; plans relating
to the installation of any storage tanks to be installed in or under the Project (provided,
said installation of tanks shall only be permitted after Landlord has given its written
consent to do so, which consent may be withheld in Landlord’s sole and absolute discretion);
and all closure plans or any other documents required by any and all federal, state and
local Governmental Authorities for any storage tanks installed in, on or under the Project
for the closure of any such tanks. Neither Tenant nor any such proposed assignee or
subtenant is required, however, to provide Landlord with any portion(s) of the such
documents containing information of a proprietary nature which, in and of themselves, do not
contain a reference to any Hazardous Materials or hazardous activities.
(d) No Release of Tenant, Sharing of Excess Rents. Notwithstanding any assignment or
subletting, Tenant and any guarantor or surety of Tenant’s obligations under this Lease shall at
all times remain fully and primarily responsible and liable for the payment of Rent and for
compliance with all of Tenant’s other obligations under this Lease. If the Rent due and payable by
a sublessee or assignee (or a combination of the rental payable under such sublease or assignment
plus any bonus or other consideration therefor or incident thereto) exceeds the rental payable
under this Lease, (excluding however, any Rent payable under this Section, together with actual and
reasonable brokerage fees, legal costs and any design or construction fees directly related to and
required pursuant to the terms of any such sublease), then Tenant shall be bound and obligated to
pay Landlord as Additional Rent hereunder 50% of such excess rental and other excess consideration
within 10 days following receipt thereof by Tenant. If Tenant shall sublet the Premises or any part
thereof, Tenant hereby immediately and irrevocably assigns to Landlord, as security for Tenant’s
obligations under this Lease, all rent from any such subletting, and Landlord as assignee and as
attorney-in-fact for Tenant, or a receiver for Tenant appointed on Landlord’s application, may
collect such rent and apply it toward Tenant’s
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obligations under this Lease; except ‘that, until the occurrence of a Default, Tenant shall have
the right to collect such rent.
(e) No Waiver. The consent by Landlord to an assignment or subletting shall not relieve
Tenant or any assignees of this Lease or any sublessees of the Premises from obtaining the consent
of Landlord to any further assignment or subletting nor shall it release Tenant or any assignee or sublessee of Tenant from full and primary liability under the Lease. The acceptance of
Rent hereunder, or the acceptance of performance of any other term, covenant, or condition thereof,
from any other person or entity shall not be deemed to be a waiver of any of the provisions of this
Lease or a consent to any subletting, assignment or other transfer of the Premises.
(f) Prior Conduct of Proposed Transferee. Notwithstanding any other provision of this Section
22, if (i) the proposed assignee or sublessee of Tenant has been required by any prior landlord,
lender or Governmental Authority to take remedial action in connection with Hazardous Materials
contaminating a property, where the contamination resulted from such party’s action or use of the
property in question, (ii) the proposed assignee or sublessee is subject to an enforcement order
issued by any Governmental Authority in connection with the use, storage, handling, treatment,
generation, release or disposal of Hazardous Materials (including, without limitation, any order
related to the failure to make a required reporting to any Governmental Authority), or (iii)
because of the existence of a pre-existing environmental condition in the vicinity of or underlying
the Project, the risk that Landlord would be targeted as a responsible party in connection with the
remediation of such pre-existing environmental condition would be materially increased or
exacerbated by the proposed use of Hazardous Materials by such proposed assignee or sublessee,
Landlord shall have the absolute right to refuse to consent to any assignment or subletting to any
such party.
23. Estoppel Certificate. Tenant shall, within 10 business days of written notice from
Landlord, execute, acknowledge and deliver a statement in writing substantially in the form
attached to this Lease as Exhibit G with the blanks filled in, or on any other form reasonably
requested by a proposed lender or purchaser, (i) certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification and certifying that
this Lease as so modified is in full force and effect) and the dates to which the rental and other
charges are paid in advance, if any, (ii) acknowledging that there are not any uncured defaults on
the part of Landlord hereunder, or specifying such defaults if any are claimed, and (iii) setting
forth such further information with respect to the status of this Lease or the Premises as may be
requested thereon. Any such statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the real property of which the Premises are a part. Tenant’s
failure to deliver such statement within such time shall, at the option of Landlord, constitute a
Default under this Lease, and, in any event, shall be conclusive upon Tenant that the Lease is in
full force and effect and without modification except as may be represented by Landlord in any
certificate prepared by Landlord and delivered to Tenant for execution.
24. Quiet Enjoyment. So long as Tenant shall perform all of the covenants and agreements
herein required to be performed by Tenant, Tenant shall, subject to the terms of this
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Lease, at all times during the Term, have peaceful and quiet enjoyment of the Premises against any
person claiming by, through or under Landlord.
25. Prorations. All prorations required or permitted to be made hereunder shall be made on
the basis of a 360 day year and 30 day months.
26. Rules and Regulations. Tenant shall, at all times during the Term and any extension thereof, comply with all reasonable rules and regulations at any time or from time to
time established by Landlord covering use of the Premises and the Project. The current rules and
regulations are attached hereto as Exhibit E. If there is any conflict between said rules and
regulations and other provisions of this Lease, the terms and provisions of this Lease shall
control. Landlord shall not have any liability or obligation for the breach of any rules or
regulations by other tenants in the Project and shall not enforce such rules and regulations in a
discriminatory manner.
27. Subordination. This Lease and Tenant’s interest and rights hereunder are. and shall be
subject and subordinate at all times to the lien of any Mortgage now existing or hereafter created
on or against the Project or the Premises, and all amendments, restatements, renewals,
modifications, consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant: provided, however that so
long as there is no Default hereunder, Tenant’s right to possession of the Premises shall not be
disturbed by the Holder of any such Mortgage. Tenant agrees, at the election of the Holder of any
such Mortgage, to attorn to any such Holder. Tenant agrees upon demand to execute, acknowledge and
deliver a Subordination, Non-disturbance and Attomment Agreement in substantially the form attached
hereto as Exhibit H, or such other instruments, confirming such subordination, and such instruments
of attornment as shall be requested by any such Holder, provided any such instruments contain
appropriate non-disturbance provisions assuring Tenant’s quiet enjoyment of the Premises as set
forth in Section 24 hereof. Notwithstanding the foregoing, any such Holder may at any time
subordinate its Mortgage to this Lease, without Tenant’s consent, by notice in writing to Tenant,
and thereupon this Lease shall be deemed prior to such Mortgage without regard to their respective
dates of execution, delivery or recording and in that event such Holder shall have the same rights
with respect to this Lease as though this Lease had been executed prior to the execution, delivery
and recording of such Mortgage and had been assigned to such Holder. The term “Mortgage” whenever
used in this Lease shall be deemed to include deeds of trust, security assignments and any other
encumbrances, and any reference to the “Holder” of a Mortgage shall be deemed to include the
beneficiary under a deed of trust.
28. Surrender. Upon the expiration of the Term or earlier termination of Tenant’s right of
possession, Tenant shall surrender the Premises to Landlord in the same condition as received,
subject to any Alterations or Installations permitted by Landlord to remain in the Premises, free
of Hazardous Materials brought upon, kept, used, stored, handled, treated, generated in, or
released or disposed of from, the Premises by any person other than a Landlord Party (collectively,
“Tenant HazMat Operations”) and released of all Hazardous Materials Clearances, broom clean,
ordinary wear and tear and casualty loss and condemnation covered by Sections 18 and 19
excepted. At least 3 months prior to the surrender of the Premises, Tenant shall deliver to
Landlord a narrative description of the actions proposed (or required by any
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Governmental Authority) to be taken by Tenant in order to surrender the Premises (including any
Installations permitted by Landlord to remain in the Premises) at the expiration or earlier
termination of the Term, free from any residual impact from the Tenant HazMat Operations and
otherwise released for unrestricted use and occupancy (the “Surrender Plan”). Such Surrender Plan
shall be accompanied by a current listing of (i) all Hazardous Materials licenses and permits held
by or on behalf of any Tenant Party with respect to the Premises, and (ii) all Hazardous Materials
used, stored, handled, treated, generated, released or disposed of from the Premises, and shall be
subject to the review and approval of Landlord’s environmental consultant. In connection with the
review and approval of the Surrender Plan, upon the request of Landlord, Tenant shall deliver to
Landlord or its consultant such additional non-proprietary information concerning Tenant HazMat
Operations as Landlord shall request. On or before such surrender, Tenant shall deliver to Landlord
evidence that the approved Surrender Plan shall have been satisfactorily completed and Landlord
shall have the right, subject to reimbursement at Tenant’s expense as set forth below, to cause
Landlord’s environmental consultant to inspect the Premises and. perform such additional procedures
as may be deemed reasonably necessary to confirm that the Premises are, as of the effective date of
such surrender or early termination of the Lease, free from any residual impact from Tenant HazMat
Operations. Tenant shall reimburse Landlord, as Additional Rent, for the actual out-of pocket
expense incurred by Landlord for Landlord’s environmental consultant to review and approve the
Surrender Plan and to visit the Premises and verify satisfactory completion of the same, which cost
shall not exceed $5,000. Landlord shall have the unrestricted right to deliver such Surrender Plan
and any report by Landlord’s environmental consultant with respect to the surrender of the Premises
to third parties.
If Tenant shall fail to prepare or submit a Surrender Plan approved by Landlord, or if Tenant
shall fail to complete the approved Surrender Plan, or if such Surrender Plan, whether or not
approved by Landlord, shall fail to adequately address any residual effect of Tenant HazMat
Operations in, on or about the Premises, Landlord shall have the right to take such actions as
Landlord may deem reasonable or appropriate to assure that the Premises and the Project are
surrendered free from any residual impact from Tenant HazMat Operations, the cost of which actions
shall be reimbursed by Tenant as Additional Rent, without regard to the limitation set forth in the
first paragraph of this Section 28.
Tenant shall immediately return to Landlord all keys and/or access cards to parking, the
Project, restrooms or all or any portion of the Premises furnished to or otherwise procured by
Tenant. If any such access card or key is lost, Tenant shall pay to Landlord, at Landlord’s
election, either the cost of replacing such lost access card or key or the cost of reprogramming
the access security system in which such access card was used or changing the lock or locks opened
by such lost key. Any Tenant’s Property, Alterations and property not so removed by Tenant as
permitted or required herein shall be deemed abandoned and may be stored, removed, and disposed of
by Landlord at Tenant’s expense, and Tenant waives all claims against Landlord for any damages
resulting from Landlord’s retention and/or disposition of such property. All obligations of Tenant
hereunder not fully performed as of the termination of the Term, including the obligations of
Tenant under Section 30 hereof, shall survive the expiration or earlier termination of the
Term, including, without limitation, indemnity obligations, payment obligations with respect to
Rent and obligations concerning the condition and repair of the Premises.
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29. Waiver of Jury Trial. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY JURY OR TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE,
BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER
INSTRUMENT, DOCUMENT, OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
30. Environmental Requirements.
(a) Prohibition/Compliancelindemnity. Tenant shall not cause or permit any Hazardous Materials
(as hereinafter defined) to be brought upon, kept, used, stored, handled, treated, generated in or
about, or released or disposed of from, the Premises or the Project in violation of applicable
Environmental Requirements (as hereinafter defined) by Tenant or any Tenant Party. If Tenant
breaches the obligation stated in the preceding sentence, or if the presence of Hazardous Materials
in the Premises during the Term or any holding over results in contamination of the Premises, the
Project or any adjacent property or if contamination of the Premises, the Project or any adjacent.
property by Hazardous Materials brought into, kept, used, stored, handled, treated, generated in or
about, or released or disposed of from, the Premises by anyone other than Landlord and Landlord’s
employees, agents and contractors otherwise occurs during the Term or any holding over, Tenant
hereby indemnifies and shall defend and hold Landlord, its officers, directors, employees, agents
and contractors harmless from any and all actions (including, without limitation, remedial or
enforcement actions of any kind, administrative or judicial proceedings, and orders or judgments
arising out of or resulting therefrom), costs, claims, damages (including, without limitation,
punitive damages and damages based upon diminution in value of the Premises or the Project, or the
loss of, or restriction on, use of the Premises or any portion of the Project), expenses
(including, without limitation, attorneys’, consultants’ and experts’ fees, court costs and amounts
paid in settlement of any claims or actions), fines, forfeitures or other civil, administrative or
criminal penalties, injunctive or other relief (whether or not based upon personal injury, property
damage, or contamination of, or adverse effects upon, the environment, water tables or natural
resources), liabilities or losses (collectively, “Environmental Claims”) which arise during or
after the Term as a result of such contamination. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, treatment, remedial, removal, or restoration work required by any
federal, state or local Governmental Authority because of Hazardous Materials present in the air,
soil or ground water above, on, or under the Premises. Without limiting the foregoing, if the
presence of any Hazardous Materials on the Premises, the Project or any adjacent property caused or
permitted by Tenant or any Tenant Party results in any contamination of the Premises, the Project
or any adjacent property, Tenant shall promptly take all actions at its sole expense and in
accordance with applicable Environmental Requirements as are necessary to return the Premises, the
Project or any adjacent property to the condition existing prior to the time of such contamination,
provided that Landlord’s approval of such action shall first be obtained, which approval shall not
unreasonably be withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on the Premises or the Project.
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(b) Business. Landlord acknowledges that it is not the intent of this Section 30 to
prohibit Tenant from using the Premises for the Permitted Use. Tenant may operate its business
according to prudent industry practices so long as the use or presence of Hazardous Materials is
strictly and properly monitored according to all then applicable Environmental Requirements. As a
material inducement to Landlord to allow Tenant to use Hazardous Materials in connection with its
business, Tenant agrees to deliver to Landlord prior to the Commencement Date a list identifying
each type of Hazardous Materials to be brought upon, kept, used, stored, handled, treated,
generated on, or released or disposed of from, the Premises and setting forth any and all
governmental approvals or permits required in connection with the presence, use, storage, handling,
treatment, generation, release or disposal of such Hazardous Materials on or from the Premises
(“Hazardous Materials List”). Tenant shall deliver to Landlord an updated Hazardous Materials List
at least once a year and shall also deliver an updated list before any new Hazardous Material is
brought onto, kept, used, stored, handled, treated, generated on, or released or disposed of from,
the Premises. Tenant shall deliver to Landlord true and correct copies of the following documents
(the “Haz Mat Documents”) relating to the use, storage, handling, treatment, generation, release or
disposal of Hazardous Materials prior to the Commencement Date, or if unavailable at that time,
concurrent with the receipt from or submission to a Governmental Authority: permits; approvals;
reports and correspondence; storage and management plans, notice of violations of any Legal
Requirements; plans relating to the installation of any storage tanks to be installed in or under
the Project (provided, said installation of tanks shall only be permitted after Landlord has given
Tenant its written consent to do so, which consent may be withheld in Landlord’s sole and absolute
discretion); all closure plans or any other documents required by any and all federal, state and
local Governmental Authorities for any storage tanks installed in, on or under the Project for the
closure of any such tanks; and a Surrender Plan (to the extent surrender in accordance with
Section 28 cannot be accomplished in 3 months). Tenant is not required, however, to provide
Landlord with any portion(s) of the Haz Mat Documents containing information of a proprietary
nature which, in and of themselves, do not contain a reference to any Hazardous Materials or
hazardous activities. It is not the intent of this Section to provide Landlord with information
which could be detrimental to Tenant’s business should such information become possessed by
Tenant’s competitors.
(c) Tenant Representation and Warranty. Tenant hereby represents and warrants to Landlord that
(i) neither Tenant nor any of its legal predecessors has been required by any prior landlord,
lender or Governmental Authority at any time to take remedial action in connection with Hazardous
Materials contaminating a property which contamination was permitted by Tenant of such predecessor
Or resulted from Tenant’s or such predecessor’s action or use of the property in question,, and
(ii) Tenant is not subject to any enforcement order issued by any Governmental Authority in
connection with the use, storage, handling, treatment, generation, release or disposal of Hazardous
Materials (including, without limitation, any order related to the failure to make a required
reporting to any Governmental Authority). If Landlord determines that this representation and
warranty was not true as of the date of this lease, Landlord shall have the right to terminate this
Lease in Landlord’s sole and absolute discretion.
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(d) Testing. Landlord shall have the right to conduct annual tests of the Premises to
determine whether any contamination of the Premises or the Project has occurred as a result of
Tenant’s use. Tenant shall be required to pay the cost of such annual test of the Premises;
provided, however, that if Tenant conducts its own tests of the Premises using third party
contractors and test procedures acceptable to Landlord which tests are certified to Landlord,
Landlord shall accept such tests in lieu of the annual tests to be paid for by Tenant. In addition,
at any time, and from time to time, prior to the expiration or earlier termination of the Term,
Landlord shall have the right to conduct appropriate tests of the Premises and the Project to
determine if contamination has occurred as a result of Tenant’s use of the Premises. In connection
with such testing, upon the request of Landlord, Tenant shall deliver to Landlord or its consultant
such nonproprietary information concerning the use of Hazardous Materials in or about the Premises
by Tenant or any Tenant Party. If contamination has occurred for which Tenant is liable under this
Section 30, Tenant shall pay all costs to conduct such tests. If no such contamination is
found, Landlord shall pay the costs of such tests (which shall not constitute an Operating
Expense). Landlord shall provide Tenant with a copy of all third party, non-confidential reports
and tests of the Premises made by or on behalf of Landlord during the Term without representation
or warranty and subject to a confidentiality agreement. Tenant shall, at its sole cost and expense,
promptly and satisfactorily remediate any environmental conditions identified by such testing in
accordance with all Environmental Requirements. Landlord’s receipt of or satisfaction with any
environmental assessment in no way waives any rights which Landlord may have against Tenant.
(e) Underground Tanks. If underground or other storage tanks storing Hazardous Materials
located on the Premises or the Project are used by Tenant or are hereafter placed on the Premises
or the Project by Tenant, Tenant shall install, use, monitor, operate, maintain, upgrade and manage
such storage tanks, maintain appropriate records, obtain and maintain appropriate insurance,
implement reporting procedures, properly close any underground storage tanks, and take or cause to
be taken all other actions necessary or required under applicable state and federal Legal
Requirements, as such now exists or may hereafter be adopted or amended in connection with the
installation, use, maintenance, management, operation, upgrading and closure of such storage tanks.
(f) Tenant’s Obligations. Tenant’s obligations under this Section 30 shall survive the
expiration or earlier termination of the Lease. During any period of time after the expiration or
earlier termination of this Lease required by Tenant or Landlord to complete the removal from the
Premises of any Hazardous Materials (including, without limitation, the release and termination of
any licenses or permits restricting the use of the Premises and the completion of the approved
Surrender Plan), Tenant shall continue to pay the full Rent in accordance with this Lease for any
portion of the Premises not relet by Landlord in Landlord’s sole discretion, which Rent shall be
prorated daily.
(g) Definitions. As used herein, the term “Environmental Requirements” means all applicable
present and future statutes, regulations, ordinances, rules, codes, judgments, orders or other
similar enactments of any Governmental Authority regulating or relating to health, safety, or
environmental conditions on, under, or about the Premises or the Project, or the environment,
including without limitation, the following: the Comprehensive Environmental Response,
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Compensation and Liability Act; the Resource Conservation and Recovery Act; and all state and local
counterparts-thereto, and any regulations or policies promulgated or issued thereunder. As used
herein, the term “Hazardous Materials” means and includes any substance, material, waste,
pollutant, or contaminant listed or defined as hazardous or toxic, or regulated by reason of its ‘
impact or potential impact on humans, animals and/or the environment under any Environmental
Requirements, asbestos and petroleum, including crude oil or any fraction thereof, natural gas
liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and
such synthetic gas). As defined in Environmental Requirements, Tenant is and shall be deemed to be
the “operator” of Tenant’s “facility” and the “owner” of all Hazardous Materials brought on the
Premises by Tenant or any Tenant Party, and the wastes, by-products, or residues generated,
resulting, or produced therefrom.
31. Tenant’s Remedies/Limitation of Liability. Landlord shall not be in default hereunder
unless Landlord fails to perform any of its obligations hereunder within 30 days after written
notice from Tenant specifying such failure (unless such performance will, due to the nature of the
obligation, require a period of time in excess of 30 days, then after such period of time as is
reasonably necessary). Upon any default by Landlord of which Tenant has knowledge of, or should
have constructive or actual knowledge of, Tenant shall give notice by registered or certified mail
to any Holder of a Mortgage covering the Premises and to any landlord of any lease of property in
or on which the Premises are located and Tenant shall offer such Holder and/or landlord a
reasonable opportunity to cure the default, including time to obtain possession of the Project by
power of sale or a judicial action if such should prove necessary to effect a cure;
provided Landlord shall have furnished to Tenant in writing the names and addresses of all
such persons who are to receive such notices. All obligations of Landlord hereunder shall be
construed as covenants, not conditions; and, except as may be otherwise expressly provided in this
Lease, Tenant may not terminate this Lease for breach of Landlord’s obligations hereunder.
All obligations of Landlord under this Lease will be binding upon Landlord only during the
period of its ownership of the Premises and not thereafter. The term “Landlord” in this Lease shall
mean only the owner for the time being of the Premises. Upon the transfer by such owner of its
interest in the Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be binding during the Term
upon each new owner for the duration of such owner’s ownership.
32. Inspection and Access. Landlord and its agents, representatives, and contractors may enter
the Premises at any reasonable time to inspect the Premises and to make such repairs as may be
required or permitted pursuant to this Lease and for any other business purpose. Landlord and
Landlord’s representatives may enter the Premises during business hours on not less than 48 hours
advance written notice (except in the case of emergencies in which case no such notice shall be
required and such entry may be at any time) for the purpose of effecting any such repairs,
inspecting the Premises, showing the Premises to prospective purchasers and, during the last 9
months of the Term, to prospective tenants or for any other business purpose. Landlord may erect a
suitable sign on the Premises stating the Premises are available to let or that the Project is
available for sale. Landlord may grant easements, make public dedications, designate Common Areas,
and create restrictions on or about the Premises, provided that no such easement,
dedication, designation or restriction materially, adversely affects Tenant’s use or
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occupancy of the Premises for the Permitted Use. At Landlord’s request, Tenant shall execute such
instruments as may be necessary for such easements, dedications or restrictions. Tenant shall at
all times, except in the case of emergencies, have the right to escort Landlord or its agents,
representatives, contractors or guests while the same are in the Premises, provided such escort
does not materially and adversely affect Landlord’s access rights hereunder.
33. Security. Tenant acknowledges and agrees that security devices and services, if any, while
intended to deter crime may not in given instances prevent theft or other criminal acts and that Landlord is not providing any security services with respect to the Premises. Tenant
agrees that Landlord shall not be liable to Tenant for, and Tenant waives any claim against
landlord With respect to, any loss by theft or any other damage suffered or incurred by Tenant in
connection with any unauthorized entry into the Premises or any other breach of security with
‘respect to the Premises. Tenant shall be solely responsible for the personal safety of Tenant’s
officers, employees, agents, contractors, guests and invitees while any such person is in, on or
about the Premises and/or the Project. Tenant shall at Tenant’s cost obtain insurance coverage to
the extent Tenant desires protection against such criminal acts.
34. Force Majeure. Landlord and Tenant shall not be held responsible for delays in the
performance of its obligations hereunder when caused by strikes, lockouts, labor disputes, weather,
natural disasters, inability to obtain labor or materials or reasonable substitutes therefor,
governmental restrictions, governmental regulations, governmental controls, delay in issuance of
permits, enemy or hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of Landlord (“Force Majeure”).
35. Brokers, Entire Agreement, Amendment. Landlord and Tenant each represents and warrants
that it has not dealt with any broker, agent or other person (collectively, “Broker”) in connection
with this transaction and that no Broker brought about this transaction, other than The Irving
Group. Landlord and Tenant each hereby agree to indemnify and hold the other harmless from and
against any claims by any Broker, other than the broker, if any named in this Section 35, claiming
a commission or other form of compensation by virtue of having dealt with Tenant or Landlord, as
applicable, with regard to this leasing transaction. This Lease constitutes the entire agreement of
the parties with respect to the subject matter hereof. This Lease may not be amended except by an
instrument in writing signed by both parties hereto.
36. Limitation on Landlord’s Liability. NOTWITHSTANDING ANYTHING SET FORTH HEREIN OR IN ANY
OTHER AGREEMENT BETWEEN LANDLORD AND TENANT TO THE CONTRARY: (A) LANDLORD SHALL NOT BE LIABLE TO
TENANT OR ANY OTHER PERSON FOR (AND TENANT AND EACH SUCH OTHER PERSON ASSUME ALL RISK OF) LOSS,
DAMAGE OR INJURY, WHETHER ACTUAL OR CONSEQUENTIAL TO: TENANT’S PERSONAL PROPERTY OF EVERY KIND AND
DESCRIPTION, INCLUDING, WITHOUT LIMITATION TRADE FIXTURES, EQUIPMENT, INVENTORY, SCIENTIFIC
RESEARCH, SCIENTIFIC EXPERIMENTS, LABORATORY ANIMALS, PRODUCT, SPECIMENS, SAMPLES, AND/OR
SCIENTIFIC, BUSINESS, ACCOUNTING AND OTHER RECORDS OF EVERY KIND AND DESCRIPTION KEPT AT THE
PREMISES AND ANY AND ALL INCOME DERIVED OR DERIVABLE THEREFROM; (B) THERE SHALL BE NO PERSONAL
RECOURSE TO LANDLORD FOR
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ANY ACT OR OCCURRENCE IN, ON OR ABOUT THE PREMISES OR ARISING IN ANY WAY UNDER THIS LEASE OR ANY
OTHER AGREEMENT BETWEEN LANDLORD AND TENANT WITH RESPECT TO THE SUBJECT MATTER HEREOF AND ANY
LIABILITY OF LANDLORD HEREUNDER SHALL BE STRICTLY LIMITED SOLELY TO LANDLORD’S INTEREST IN THE
PROJECT; AND (C) IN NO EVENT SHALL ANY PERSONAL LIABILITY BE ASSERTED AGAINST LANDLORD IN
CONNECTION WITH THIS LEASE NOR SHALL ANY RECOURSE BE HAD TO ANY OTHER PROPERTY OR ASSETS OF
LANDLORD OR ANY OF LANDLORD’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR CONTRACTORS. UNDER NO
CIRCUMSTANCES SHALL LANDLORD OR ANY OF LANDLORD’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR
CONTRACTORS BE LIABLE FOR INJURY TO TENANTS BUSINESS OR FOR ANY LOSS OF INCOME OR PROFIT THEREFROM.
37. Severability. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected thereby. It is also the
intention of the parties to this Lease that in lieu of each clause or provision of this Lease that
is illegal, invalid or unenforceable, there be added, as a part of this Lease, a clause or
provision as similar in effect to such illegal, invalid or unenforceable clause or provision as
shall be legal, valid and enforceable.
38. Signs; Exterior Appearance. Tenant shall not, without the prior written consent of
Landlord, which may be granted or withheld in Landlord’s sole discretion: (i) attach any awnings,
exterior lights, decorations, balloons, flags, pennants, banners, painting or other projection to
any outside wall of the Project, (ii) use any curtains, blinds, shades or screens other than
Landlord’s standard window coverings, (iii) coat or otherwise sunscreen the interior or exterior of
any windows, (iv) place any bottles, parcels, or other articles on the window xxxxx, (v) place any
equipment, furniture or other items of personal property on any exterior balcony, or (vi) paint,
affix or exhibit on any part of the Premises or the Project any signs, notices, window or door
lettering, placards, decorations, or advertising media of any type which can be viewed from the
exterior of the Premises. Interior signs on doors and the directory tablet shall be inscribed,
painted or affixed for Tenant by Landlord at the sole cost and expense of Tenant, and shall be of a
size, color and type acceptable to Landlord. Nothing may be placed on the exterior of corridor
walls or corridor doors other than Landlord’s standard lettering. The directory tablet shall be
provided exclusively for the display of the name and location of tenants.
39. Right to Extend Term. Tenant shall have the right to extend the Term of the Lease upon the
following terms and conditions:
(a) Extension Right. Tenant shall have the one time right (the “Extension Right”) to extend
the term of this Lease for 3 years (the “Extension Term”) on the same terms and conditions as this
Lease (other than Base Rent) by giving Landlord written notice of its election to exercise the
Extension Right at least 9 months prior to the expiration of the Base Term of the Lease. Upon the
commencement of the Extension Term, Base Rent shall be payable at the Market Rate (as defined
below). Base Rent shall thereafter be adjusted on each annual anniversary of the commencement of
the Extension Term by a percentage as determined by Landlord and agreed to by Tenant at the time
the Market Rate is determined. As used herein,
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“Market Rate” shall mean the then market rental rate as determined by Landlord and agreed to by
Tenant, which shall in no event be less than the Base Rent payable as of the date immediately
preceding the commencement of the Extension Term increased by the Rent Adjustment Percentage
multiplied by such Base Rent. In addition, Landlord may impose a market rent for the parking,
rights provided hereunder. If, on or before the date which is 120 days prior to the expiration of
the Base Term of this Lease, Tenant has not agreed with Landlord’s determination of the Market Rate
and the rent escalations during the Extension Term after negotiating in good faith, Tenant may by
written notice to Landlord not later than 120 days prior to the expiration of the Base Term of this
Lease, elect arbitration as described in Section 39(b) below. If Tenant does not elect such
arbitration, Tenant shall be deemed to have waived any right to extend the Base Term of-the Lease
and the Extension Right shall terminate.
(b) Arbitration.
(i) Within 10 days of Tenant’s notice to Landlord of its election to arbitrate Market
Rate and escalations, each party shall deliver to the other a proposal containing the Market
Rate and escalations that the submitting party believes to be correct (“Extension
Proposal”). If either party fails to timely submit an Extension Proposal, the other party’s
submitted proposal shall determine the Base Rent and escalations for the Extension Term. If
both parties submit Extension Proposals, then Landlord and Tenant shall meet within 7 days
after delivery of the last Extension Proposal and make a good faith attempt to mutually
appoint a single Arbitrator (and defined below) to determine the Market Rate and
escalations. If Landlord and Tenant are unable to agree upon a single Arbitrator, then each
shall, by written notice delivered to the other within 10 days after the meeting, select an
Arbitrator. If either party fails to timely give notice of its selection for an Arbitrator,
the other party’s submitted proposal shall determine the Base Rent for the Extension Term.
The 2 Arbitrators so appointed shall, within 5 business days after their appointment,
appoint a third Arbitrator. If the 2 Arbitrators so selected cannot agree on the selection
of the third Arbitrator within the time above specified, then either party, on behalf of
both parties, may request such appointment of such third Arbitrator by application to any
state court of general jurisdiction in the jurisdiction in which the Premises are located,
upon 10 days prior written notice to the other party of such intent.
(ii) The decision of the Arbitrator(s) shall be made within 30 days after the
appointment of a single Arbitrator or the third Arbitrator, as applicable. The decision of
the single Arbitrator shall be final and binding upon the parties. The average of the two
closest Arbitrators in a three Arbitrator panel shall be final and binding upon the parties.
Each party shall pay the fees and expenses of the Arbitrator appointed by or on behalf of
such party and the fees and expenses of the third Arbitrator shall be borne equally by both
parties. If the Market Rate and escalations are not determined by the first day of the
Extension Term, then Tenant shall pay Landlord Base Rent in an amount equal to the Base Rent
in effect immediately prior to the Extension Term and increased by the Rent Adjustment
Percentage until such determination is made. After the determination of the Market Rate and
escalations, the parties shall make any necessary adjustments to such payments made by
Tenant. Landlord and Tenant shall then execute an amendment recognizing the Market Rate and
escalations for the Extension Term.
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(iii) An “Arbitrator” shall be any person appointed by or on behalf of either party or
appointed pursuant to the provisions hereof and: (i) shall be (A) a member of the American
Institute of Real Estate Appraisers with not less than 10 years of experience in the
appraisal of improved office and high tech industrial real estate in the greater Washington,
D.C. metropolitan area, or (B) a licensed commercial real estate broker with not less than
15 years experience representing landlords and/or tenants in the leasing of high tech or
life sciences space in the greater Washington, D.C. metropolitan area, (ii) devoting
substantially all of their time to professional appraisal or brokerage work, as applicable,
at the time of appointment and (iii) be in all respects impartial and disinterested.
(c) Right Personal. The Extension Right is personal to Tenant and is not assignable without
Landlord’s consent, which may be granted or withheld in Landlord’s sole discretion separate and
apart from any consent by Landlord to an assignment of Tenant’s interest in the Lease.
(d) Exceptions. Notwithstanding anything set forth above to the contrary, the Extension Right
shall not be in effect and Tenant may not exercise the Extension Right:
(i) during any period of time that Tenant is in Default under any provision of this
Lease; or
(ii) if Tenant has been in Default under any provision of this Lease 3 or more times,
whether or not the Defaults are cured, during the 12 month period immediately prior to the
date that Tenant intends to exercise the Extension Right.
(e) No Extensions. The period of time within which the Extension Right may be exercised shall
not be extended or enlarged by reason of Tenant’s inability to exercise the Extension Right.
(f) Termination. The Extension Right shall terminate and be of no further force or effect even after Tenant’s due and timely exercise of the Extension Right, if, after such exercise,
but prior to the commencement date of the Extension Term, (1) Tenant fails to timely cure any
default by Tenant under this Lease; or (ii) Tenant has Defaulted 3 or more times during the period
from the date of the exercise of the Extension Right to the date of the commencement of the
Extension Term, whether or not such Defaults are cured.
40. Miscellaneous.
(a) Notices. All notices or other communications between the parties shall be in writing and
shall be deemed duly given upon delivery or refusal to accept delivery by the addressee thereof if
delivered in person, or upon actual receipt if delivered by reputable overnight guaranty courier,
addressed and sent to the parties at their addresses set forth above. Landlord and Tenant may from
time to time by written notice to the other designate another address for receipt of future
notices.
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(b) Joint and Several Liability. If and when included within the term “Tenant,” as used in
this instrument, there is more than one person or entity, each shall be jointly and severally
liable for the obligations of Tenant.
(c) Financial Information. Tenant shall furnish Landlord with true and complete copies of (i)
Tenant’s most recent audited annual financial statements, or unaudited annual financial statements
if audited annual financial statements are not available, within 90 days of the end of each of
Tenant’s fiscal years during the- Term, (ii) Tenant’s most recent unaudited quarterly financial
statements within 45 days of the end of each of Tenant’s first three fiscal quarters of each of
Tenant’s fiscal years during the Term, (iii) at Landlord’s request from time to time, current
business plans, including cash flow projections and/or pro forma balance sheets and income
statements, to the extent available, all of which shall be treated by Landlord as confidential
information belonging to Tenant, (iv) at Landlord’s request from time to time, corporate brochures
and/or profiles prepared by Tenant for prospective investors, and (v) at Landlord’s request from
time to time, any other financial information or summaries that Tenant typically provides to its
lenders or shareholders, to the extent available.
(d) Recordation. Neither this Lease nor a memorandum of lease shall be filed by or on behalf
of Tenant in any public record. Landlord may prepare and file, and upon request by Landlord Tenant
will execute, a memorandum of lease.
(e) Interpretation. The normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the interpretation of this Lease or
any exhibits or amendments hereto. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be held to include
the plural, unless the context otherwise requires. The captions inserted in this Lease are for
convenience only and in no way define, limit or otherwise describe the scope or intent of this
Lease, or any provision hereof, or in any way affect the interpretation of this Lease.
(f) Not Binding Until Executed. The submission by Landlord to Tenant of this Lease shall have
no binding force or effect, shall not constitute an option for the leasing of the Premises, nor
confer any right or impose any obligations upon either party until execution of this Lease by both
parties.
(g) Limitations on Interest. It is expressly the intent of Landlord and Tenant at all times to
comply with applicable law governing the maximum rate or amount of any interest payable on or in
connection with this Lease. If applicable law is ever judicially interpreted so as to render
usurious any interest called for under this Lease, or contracted for, charged, taken, reserved, or
received with respect to this Lease, then it is Landlord’s and Tenant’s express intent that all
excess amounts theretofore collected by Landlord be credited on the applicable obligation (or, if
the obligation has been or would thereby be paid in full, refunded to Tenant), and the provisions
of this Lease immediately shall be deemed reformed and the amounts thereafter collectible hereunder
reduced, without the necessity of the execution of any new document, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise called for
hereunder.
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(h) Choice of Law. Construction and interpretation of this Lease shall be governed by the
internal laws of the state in which the Premises are located, excluding any principles of conflicts
of laws.
(i) Time. Time is of the essence as to the performance of Landlord’s and Tenant’s obligations
under this Lease.
(j) Incorporation by Reference. All exhibits and addenda attached hereto are hereby
incorporated into this Lease and made a part hereof. If there is any conflict between such exhibits
or addenda and the terms of this Lease, such exhibits or addenda shall control.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and dear first
above written.
| TENANT: | ||||||||
| IOMAI CORPORATION, | ||||||||
| a Delaware corporation | ||||||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||||
| Its: | CEO | |||||||
| 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: | /s/ Xxxxxxx X. Xxxxx | |||||||
| Its: | Senior Vice President | |||||||
| Real Estate Legal Affairs | ||||||||
