EXHIBIT 10.59
FIRST AMENDMENT OF LEASE
BETWEEN
XXXXXXX ROAD ASSOCIATES
AND
MEDIMMUNE, INC.
DATE: June 8, 1993
TABLE OF CONTENTS
Explanatory Statement Page No.
1. Effective Date of First Amendment 1
2. Capitalized Terms 1
3. Expansion Space 1
4. Shell Construction of Additional
Expansion Space 1
a. Shell Plans; Filing for Building Permit 1
b. Shell Completion 1
c. Landlord's Shell Warranty 2
5. Construction of Initial Improvements
to Expansion Space 2
a. Plans and Specifications; Long
Lead-Time Items 2
b. [Intentionally Deleted] 2
c. Third Party as Contractor 2
(i) Approval and Performance 2
(ii) Insurance 3
(iii)Manekin's observation 3
6. Expansion Space Contribution 3
7. The Expansion Space Loan 3
8. Construction Provisions of Original Leased
Premises Not Applicable to Expansion Space 4
9. Term of Expansion Space Lease 4
a. Expansion Space Commencement Date 5
b. Early Occupancy of Portion of Existing
Expansion Space 5
c. Possession of Expansion Space 5
d. Acceptance of Expansion Space 5
10. Cancellation Options 5
11. Basic Annual Rent for the Expansion Space 6
a. Commencement of Payment of Basic
Annual Rent for the Expansion Space 6
b. Amount of Basin Annual Rent
for Additional Expansion Space 7
c. Amount of Basin Annual Rent for
Existing Expansion Space 7
d. Payment of Basic Annual Rent
for Expansion Space 7
e. Security Deposit 7
12. Adjustments to Square Footages, Percentages
and Addresses 9
13. Environmental Assurances 10
14. Assignment/Subletting 11
15. Notices 11
16. Parking 11
17. Tenant Financing of Equipment, Fixtures, Etc. 11
18. Right of First Offer 11
19. Tenant Authorization 13
20. Lease as Amended 13
21. Tenant Reaffirmation of Lease 13
EXHIBIT A Description of Expansion Space
EXHIBIT B Description of Shell Plans
EXHIBIT C Description of Expansion Space Plans
EXHIBIT D Shell Construction Costs
EXHIBIT E List of Tenants With Superior Rights to Tenant to
Lease Available Space in First Phase of Project
FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE (this "First Amendment") is
made this 8th day of June, 1993 by and between XXXXXXX ROAD
ASSOCIATES, a Maryland general partnership ("LANDLORD") and
MEDIMMUNE, INC., a Delaware corporation ("TENANT").
EXPLANATORY STATEMENT
A. Landlord and Tenant entered into a Lease dated February
14, 1991 (the "Lease") for a portion of Building D (the
"Building") located at 00 Xxxx Xxxxxxx Xxxx Xxxx in the
Bennington Corporate Center, which portion contains 40,843 square
feet (the "Original Leased Premises").
B . Landlord and Tenant now desire to expand the Building,
increase the square footage of the Original Leased Premises,
adjust the rent payable therefor, and make certain other changes
to the Lease, all as more specifically set forth below.
NOW, THEREFORE, in consideration of the Explanatory
Statement, which shall be deemed a substantive part of this First
Amendment, the covenants of the parties herein and in the Lease,
and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
1. Effective Date of First Amendment. From and after
the date of this First Amendment, the Lease shall be amended as
set forth below.
2. Capitalized Terms. All capitalized terms in this
First Amendment shall have the same meanings as those in the
Lease, unless specifically set forth otherwise herein.
3. Expansion Space. Landlord hereby leases to Tenant,
and Tenant hereby leases from Landlord, in addition to the
Original Leased Premises, approximately Nine Thousand Seven
Hundred Ninety Two (9,792) rentable square feet of space,
consisting of Seven Thousand Five Hundred Fifty-Two (7,552)
existing square feet in the Building (the "Existing Expansion
Space"), and Two Thousand Two Hundred Forty (2,240) rentable
square feet of space which shall be added to the Building (the
"Additional Expansion Space") (collectively, the "Existing
Expansion Space and the Additional Expansion Space shall be
deemed the "Expansion Space"). The Expansion Space is shown more
particularly on Exhibit A attached hereto and made a part hereof.
4. Shell Construction of Additional Expansion Space.
a. Shell Plans; Filing for Building Permit. Landlord
shall cause the "Shell" for the Additional Expansion Space (the
"Shell Construction") to be constructed. Landlord has initially
designated as the general contractor to cause the Shell
construction, Riparius Construction, Inc. ("Riparius"). Landlord
shall provide all work, labor and materials in support of the
Shell construction in accordance with the plans and
specifications for the Shell (the "Shell Plans") , which Shell
Plans have been approved and initialed by the parties. The Shell
Plans are described more fully on Exhibit B attached hereto and
incorporated herein by reference.
Landlord shall file its application with Xxxxxxxxxx
County for the Shell Building Permit within five (5) days of the
execution and delivery of this Lease.
b. Shell Completion. Landlord shall complete the
Shell Construction so that the Shell is ready for construction of
the Initial Improvements to the Additional Expansion Space (as
defined below) no later than five (5) months after the date that
Xxxxxxxxxx County has issued a building permit for the Shell (the
"Shell Completion Date"). The Shell Completion Date shall be
pushed back one (1) day for each day that Shell Construction is
delayed due to (i) Tenant-generated change orders to the Shell
Plans; (ii) delays of any nature whatsoever caused by Tenant; and
(iii) Tenant negligence or willful misconduct.
Promptly upon Landlord's Completion of the Shell
Construction, Tenant's architect shall certify to Tenant that the
Shell Construction has been completed in accordance with the
Shell Plans.
c. Landlord's Shell Warranty. At the termination of
Landlord's Shell Warranty Period (as defined below), or upon the
transfer of fee simple title to the Property to Landlord's lender
(the "Permanent Lender") pursuant to a foreclosure of Landlord's
loan, a conveyance in lieu of foreclosure, or otherwise, Landlord
hereby agrees to and will assign to Tenant, to the extent they
are assignable, any and all written warranties and guarantees
from Landlord's contractors, subcontractors and suppliers of any
materials and labor to the Shell, for that portion, if any, of
the Lease Term that such warranties and guarantees are in effect.
Landlord hereby warrants ("Landlord's Shell Warranty") to Tenant
that Landlord will be responsible for a period ("Landlord's Shell
Warranty Period") of one (1) year from the Shell Completion Date
to repair or to have repaired all defects in the Shell
Construction, to the extent such defects are not caused by the
negligence of Tenant or any of its agents, servants, employees or
contractors (in which event such defects will be repaired at
Tenant's sole cost). To the extent that Landlord is obligated to
make repairs pursuant to Landlord's Shell Warranty, Tenant will
be relieved during Landlord's Shell Warranty Period of the
obligations imposed upon it pursuant to this Lease to make or pay
for such repairs to the Shell. Tenant agrees to and will give
Landlord prompt notice of the need for any such repairs.
5. Construction of Initial Improvements to Expansion Space.
a. Plans and Specifications; Long Lead-Time Items.
Tenant has caused the preparation of plans and specifications
(the "Expansions Space Plans") for the Initial Improvements with
respect to the Existing Expansion Space (the "Existing Expansion
Space Initial improvements") and for the Initial Improvements
with respect to the Additional Expansion Space (the "Additional
Expansion Space Initial Improvements") (the Existing Expansion
Space Initial Improvements and the Additional Expansion Space
Initial Improvements being collectively referred to as the
"Expansion Space Initial Improvements"). The Expansion Space
Plans have been approved and initialed by the parties. The
Expansion Space Plans are described more fully on Exhibit C
attached hereto and incorporated herein by reference.
b. [Intentionally Deleted.)
c. Third Party as Contractor.
(i) Approval and Performance. Tenant has
initially selected Riparius (the "Third Party Contractor") to
construct the Initial Improvements to the Expansion Space.
Landlord hereby approves of such selection. Tenant will not
change the Third Party Contractor from Riparius to another party
without the prior written consent of Landlord, which consent
shall not be unreasonably withheld or delayed. The Third Party
Contractor shall perform its work in strict compliance with all
laws rules, regulations, orders, codes and other requirements of
all governmental and quasi-governmental authorities having
jurisdiction with respect to the Expansion Space and/or the
performance of the Initial Improvements, and shall comply with
all of Landlord's reasonable rules and regulations provided to
the Third Party Contractor.
(ii) Insurance. In addition, the Third
Party Contractor shall obtain Builder's Risk insurance naming
Landlord, Tenant and Manekin Corporation as additional insureds
and public liability insurance with limits of $1,000,000/
$2,000,000 for the construction of the initial improvements, and
proof that it maintains a policy of Workmen's Compensation
Insurance in accordance with applicable law. No later than the
date of commencement of construction of the Initial Improvements
to the Expansion Space, the Third Party Contractor shall provide
original insurance certificates to Landlord evidencing all such
insurance policies.
(iii) Manekin's Observation. Manekin, on
behalf of Landlord, shall have the right to observe the Third
Party Contractor's work on the Initial Improvements to the
Expansion Space, and Tenant shall pay Manekin a fee (the "Fee")
equal to the lesser of (i) all of Manekin's out-of-pocket costs
for such observation, including, without limitation, the wages,
salaries or other compensation and any taxes, insurance or
benefits of its personnel performing such observation; and (ii)
three percent (3%) of the Existing Expansion Space Contribution
(as defined below), which three percent equals Six Thousand one
Hundred Seventeen Dollars and Twelve Cents ($6,117.12). Tenant
shall pay this Fee thirty (30) days after receipt of Landlord's
invoice therefor, together with all applicable supporting
documentation.
G. Expansion Space Contribution. Landlord shall
contribute to Tenant Twenty Seven Dollars ($27.00) per rentable
square foot of the Existing Expansion Space (as such square
footage may vary pursuant to Paragraph 12(c) below) (the
"Expansion Space contribution"), as an allowance for construction
of the Initial Improvements to the Existing Expansion Space.
Subject to Paragraph 7 below, Tenant shall pay all costs of any
nature which exceed the Expansion Space Contribution for
construction of the Initial Improvements to the Expansion Space.
Tenant shall send Landlord an invoice for each monthly
construction invoice Tenant must pay with respect to the Existing
Expansion Space Initial Improvements, and Landlord shall pay
Tenant one-half of each such invoice within thirty (30) days of
receipt thereof, until the Expansion Space Contribution has been
fully paid.
Landlord's obligation to make the payments set forth
above in this Paragraph 6 shall be subject to (i) certification
by Tenant's architect that the applicable stage of completion has
been achieved, and (ii) the receipt by Landlord of (A) (i) with
reference to all draws other than the final draw, duly executed
releases of liens with respect to the work by the Third Party
Contractor; and (ii) with reference to the final draw, duly
executed releases of liens with respect to the work by the Third
Party Contractor and all subcontractors; and (B) a written draw
request on AIA Form G702 with respect to the work for which
payment is being requested.
7. The Expansion Space Loan. Landlord shall loan
Tenant Fifty Dollars ($50.00) per rentable square foot of the
Additional Expansion Space, for a total of One Hundred Twelve
Thousand Dollars ($112,000.00) (the "Expansion Space Loan"). The
Expansion Space Loan shall be applied first to pay one hundred
percent of the invoices for the Shall Construction. If the Shell
Construction costs are greater that the amount of the Expansion
Space Loan. If the Shell Construction costs are less than the
Expansion Space Loan, the amount of the Expansion Space Loan in
excess of the Shell Construction costs shall be applied to the
costs of the Initial Improvements to the Existing Expansion
Space.
There is attached hereto as Exhibit D and incorporated
herein by reference the categories of items constituting the
Shell Construction costs and the estimated costs within each such
category. Within thirty (30) days after the Shell Completion
Date, Landlord shall provide to Tenant invoices substantiating
the full amount of the Shell Construction costs. Within twenty
(20) days thereafter: (a) if the Shell Construction costs are
more than $112,000, Tenant shall pay Landlord in cash the entire
amount of such costs over $112,000; and (b) if the Shell
Construction costs are less than $112,000, Landlord shall add the
amount by which $112,000 exceeds the Shell Construction costs to
the Expansion Space Contribution, and Landlord and Tenant
promptly shall execute an amendment to the Lease as amended
hereby setting forth the new Expansion Space Contribution.
Landlord agrees that it will not allow or permit the total costs
attributable to any category set forth on Exhibit D to exceed the
estimated amount for such respective category as set forth on
Exhibit D without first obtaining the prior written consent of
the Tenant.
Tenant shall repay the Expansion Space Loan to Landlord
at thirteen percent (13%) interest per year, over ten (10) years,
commencing on August 1, 1994 (the "Loan Repayment") which Loan
Repayment is incorporated into the Basic Annual Rent for the
Additional Expansion Space. In the event that the Lease, as
amended hereby or hereafter, terminates early for any reason
whatsoever, Tenant shall repay to Landlord no later than the date
of such early termination the then-outstanding balance of the
Expansion Space Loan.
Tenant shall have the option at any time during the
Lease Term, to prepay all or a portion of the then outstanding
balance of the Expansion Space Loan without any prepayment
penalty. In the event that the Tenant prepays all of the then-
outstanding balance of the Expansion Space Loan, then and in such
event, there shall be a reduction in the Basic Annual Rent for
the Additional Expansion Space and in the monthly installments of
the Basic Annual Rent for the Additional Expansion Space. In the
event that Tenant prepays a portion but not all of the then-
outstanding balance of the Expansion Space Loan, the Basic Annual
Rent for the Additional Expansion Space and the monthly
installments of such Basic Annual Rent shall not be reduced at
all, but shall remain the same as they were before any such
partial prepayment until the balance of the Expansion Space Loan
has been paid in full. Upon the payment in full of the Expansion
Space Loan, the Basic Annual Rent shall be reduced by the amount
of $1,672.27 per month.
For purposes of determining at any time the then unpaid
principal balance of the Expansion Space Loan, the same shall be
equal to (i) the then unpaid principal balance of a one Hundred
Twelve Thousand Dollar ($112.000.00) loan amortized at thirteen
percent (13%) interest per annum over one hundred twenty (120)
months with level equal monthly payments of principal and
interest and with the first payment having been made on August 1,
1994; and (ii) less prepayments theretofore made; and (iii) plus
any adjustments to the extent that Basic Annual Rent for the
Additional Expansion Space has not been paid in accordance with
its terms.
8. Construction Provisions of Original Leased Premises
Not Applicable to Expansion Space. Article I.B of the Lease
shall only apply to the Original Leased Premises, and shall not
apply to the Expansion Space except as specifically set forth in
this First Amendment.
9. Term of Expansion Space Lease. The Expansion Space
Term will commence on the Expansion Space Commencement Date and
will end on the last day of the Leased Term. From and after the
date of this First Amendment, the term "Leased Term" will include
the Expansion Space term. Upon the occurrence of the Expansion
Space Commencement Date, Landlord and Tenant shall execute in
writing a statement setting forth the Expansion Space
Commencement Date.
a. Expansion Space Commencement Date. The
Expansion Space Commencement Date shall be the date that Tenant
has obtained a temporary certificate of occupancy and all other
licenses and permits required with respect to construction-
related issues only, in order for Tenant to occupy the Expansion
Space.
b. Early Occupancy of Portion of Existing
Expansion Space. Notwithstanding subsection 9 (a) above, Tenant
shall have the right to occupy approximately One Thousand Two
Hundred (1,200) rentable square feet of the Existing Expansion
Space (the "Early Occupancy Space") as shown in red on Exhibit A,
on the date (the "Early Occupancy Date") that (i) the Initial
improvements for such Early Occupancy Space have been completed
subject only to minor punch list items; and (ii) a temporary
certificate of occupancy has been issued, together with all other
licenses and permits required with respect to construction-
related issues only, so that Tenant may occupy the Early
Occupancy Space. on or before the Early Occupancy Date, Tenant
shall have provided Landlord with all certificates of insurance
as required under the Lease with respect to the Early Occupancy
Space, and all aspects of the Lease as amended hereby, except for
the Basic Annual and Additional Rent provisions, shall apply to
Tenant's occupancy of the Early Occupancy Space.
c. Possession of Expansion Space. This First
Amendment will remain fully effective and Tenant may not cancel
or rescind it due to late possession, regardless of when
possession is actually delivered. Moreover, in no event will
Landlord be liable to Tenant for damages, if any, sustained by
Tenant as a result of Landlord's delay in delivering the
Expansion Space.
d. Acceptance of Expansion Space. Upon
Landlord's delivery of possession of the Expansion Space to
Tenant, Tenant will be deemed to have accepted the Expansion
Space subject to Landlord's duties otherwise provided herein.
10. Cancellation options.
a. Paragraph II.B(l) of the Lease shall apply to
the Expansion Space but shall be amended by (w) adding Ninety
Thousand Six Hundred Twenty-Four Dollars ($90,624.00) to each of
the First Fee and the Second Fee defined in the first paragraph
thereof so that the total First Fee shall equal Two Hundred
Fifteen Thousand Six Hundred Twenty-Four Dollars ($215,624.00)
and the total Second Fee shall equal Two Hundred Fifteen Thousand
Six Hundred Twenty-Four Dollars ($215,624.00); (x) adding the
underlined phrase to the end of subsection (b) (ii) of the first
paragraph thereof so that subsection (b)(ii) shall read "(ii) the
then-outstanding balance of the Loan Amount and the Expansion
Space Loan ..."; (y) substituting the numbers in the mathematical
example in the third to the last sentence in the first paragraph
thereof as follows: "... such that each Fee will equal One
Hundred Seventy-Four Thousand Six Hundred Twenty-Four Dollars
($174,624.00) ($215,624.00 - $41,000.00 = $174,624.00)."; and (z)
adding the underlined language in the last sentence in the first
paragraph thereof as follows: "... the then-outstanding balance
of the Loan Amount and the Expansion Space Loan upon the Lease
termination hereunder."
The second paragraph of Paragraph II.B(1) of the Lease
shall be amended by adding in the seventh line thereof the
following underlined language: "...shall set forth through the
Acquisition Termination Date the outstanding balance of the Loan
Amount and the Expansion Space Loan..."
b. Paragraph II.B(2) of the Lease shall apply to
the Expansion Space but shall be amended by (x) adding Ninety
Thousand Six Hundred Twenty-Four Dollars ($90,624.00) to each of
the First Five-Year Fee and the Second Five-Year Fee defined in
the first paragraph thereof so that the total First Five-Year Fee
shall equal Two Hundred Fifteen Thousand Six hundred Twenty-Four
Dollars ($215,624.00) and the total. Second Five-Year Fee shall
equal Two hundred Fifteen Thousand Six Hundred Twenty-Four
Dollars ($215,624.00); and (y) adding the underlined phrase to
the end of subsection (b) of the first paragraph thereof so that
subsection (b) shall read "(b) the then-outstanding balance of
the Loan Amount at-id the Expansion Space Loan".
The second paragraph of Paragraph II.B(2) of the Lease shall
be amended by adding in the seventh line thereof the following
underlined language: " ... which Five-Year Termination Rent
Statement shall set forth through the Five-Year Termination Date
the outstanding balance of the Loan Amount and the Expansion
Space Loan... "
c. Paragraph II.B(3) of the Lease shall apply to
the Expansion Space but shall be amended by adding the underlined
language to the end of the second sentence of the first paragraph
thereof as follows: "If Tenant exercises its right to terminate
this Lease under this Paragraph II.B.(3), Tenant shall pay by
certified or bank cashier's check made Payable to Landlord, or at
Landlord's option by wire transfer of immediately available funds
to Landlord's account, at the time Tenant gives Landlord notice
hereunder, a fee (the "First Ten-Year Fee") of Twenty-Two
Thousand Six Hundred Fifty-Six Dollars ($22,656.00). In addition,
Tenant shall pay to Landlord in the manner set forth in Paragraph
II.B(2) on or before the expiration of the one hundred nineteenth
(119th) month of the Lease Term, both (a) a second fee (the
"Second Ten-Year Feel") (collectively, the First and Second Ten-
Year Fees shall be called the "Ten-Year Fees") of Twenty-Two
Thousand Six Hundred Fifty-Six Dollars ($22,656.00) and (b) the
then-outstanding balance of the Loan Amount and the Expansion
Space Loan."
The second paragraph of Paragraph II.B(3) of the Lease
shall be amended by adding in the seventh line thereof the
following underlined language: "... which Ten-Year Termination
Rent Statement shall set forth through the Ten-Year Termination
Date the outstanding balance of the Loan Amount and the Expansion
Space Loan..."
In addition, the second paragraph of Paragraph II.B(3)
shall be amended by adding in the second sentence thereof the
following underlined language: "Notwithstanding anything set
forth above in this Paragraph - II.B(3), the termination of the
Lease pursuant to this Paragraph shall not be effective until
Landlord has received from Tenant all Ten-Year Fees and the
amount set forth in the Ten-Year Termination Rent Statement;
provided, however, that if Landlord fails to provide the Ten-Year
Termination Rent Statement to Tenant as and when required
hereunder, the termination of the Lease pursuant to this
Paragraph shall nevertheless be effective on the Ten-Year
Termination Date; provided that in such event, Tenant has timely
paid the Ten-Year Fees to Landlord."
Finally, the second paragraph of Paragraph II.B(3)
shall be amended by adding to the last sentence thereof the
following underlined language: "... Landlord shall have no
further right to make any claim for payment of any sums payable
by Tenant to landlord pursuant to this Lease other than the Fees
and the sums set forth ..."
11. Basic Annual Rent for the Expansion Space.
a. Commencement of Payments of Basic Annual Rent
for Expansion Space. Basic Annual Rent on the Expansion Space
shall be paid by Tenant, commencing as follows:
(1) Tenant's payment of Basic Annual Rent for
the Additional Expansion Space shall commence on August 1, 1994,
and Tenant's payment of Basic Annual Rent for the Existing
Expansion Space shall commence on September 1, 1994. These
payments shall commence on the dates set forth herein regardless
of when the Expansion Space Commencement Date occurs.
b. Amount of Basic Annual Rent for Additional
Expansion Space. Basic Annual Rent for the Additional
Expansion space, including, but not limited to, amortization of
the Expansion Space Loan, shall equal Twenty-Seven Thousand Three
Hundred Fifty Dollars and Forty Cents ($27,350.40) per annum,
payable in equal monthly installments of Two Thousand Two Hundred
Seventy-Nine Dollars and Twenty Cents ($2,279.20). Payment of the
first monthly installment hereunder shall commence on August 1,
1994 and shall continue for one hundred twenty (120) months of
the Lease Term; provided that if payment commences on a date that
is not the first day of a month, then payment shall continue for
one hundred twenty (120) months plus the partial first month in
which payment commences.
Commencing on the first day of the one hundred
twenty-first (121st) month after payment has commenced under
Paragraph 11(b) above, Tenant shall pay a reduced Basic Annual
Rent for the Additional Expansion Space equal to Four Dollars and
Forty Cents ($4.40) per square foot of the Additional Expansion
Space, for a total of Nine Thousand Eight Hundred Fifty-Six
Dollars ($9,856.00) per annum, in equal monthly installments of
Eight Hundred Twenty-One Dollars and Thirty-Three Cents $821.33),
for the remainder of the Initial Lease Term.
c. Amount of Basic Annual Rent for Existing
Expansion Space. Basic Annual Rent for the Existing Expansion
Space, including, but not limited to, repayment of the Expansion
Space Contribution, shall equal One Hundred Thousand Three
Hundred Sixty-Six Dollars and Eight Cents ($100,366.08) per
annum, payable in equal monthly installments of Eight Thousand
Three Hundred Sixty-Three Dollars and Eighty-Four Cents
($8,363.84), commencing oil September 1, 1994. Such Basic Annual
Rent for the Existing Expansion Space shall be increased Three
and One-half Percent (3.5%) per annum, compounded annually, on
each anniversary of the commencement of payment hereunder.
d. Payment of Basic Annual Rent for Expansion
Space. The above amounts of Basic Annual Rent for the Expansion
Space shall be paid at the time and in addition to the payment of
Basic Annual Rent for the Original Leased Premises, and otherwise
in the manner set forth in Article III.B of the Lease, commencing
on August 1, 1994 with respect to the Additional Expansion space,
and September 1, 1994 with respect to the Existing Expansion
Space.
e. Security Deposit. Contemporaneously with the
execution of this First Amendment, Tenant shall deposit with
Landlord the sum of Ten Thousand Six Hundred Forty-Three and
04/100 Dollars ($10,643.04), which amount shall be applied by
Landlord to the monthly installment of Basic Annual Rent for the
Expansion Space with respect to the month of September, 1994.
Paragraph III.A. of the Lease is hereby deleted and
there is inserted in lieu thereof the following:
A. Upon the occurrence of the Triggering Event prior
to December 31, 1996, the Tenant shall, upon twenty (20) days;
written notice from Landlord, provide to Landlord a Security
Deposit in the form of a Letter of Credit. The Letter of Credit
shall serve as a security deposit to guaranty Tenant's
performance of its monetary obligations under the Lease.
The Triggering Event shall be either (i) Tenant's Total
Shareholders' Equity as stated for the most recently completed
quarterly accounting period on Tenant's Balance Sheet is less
than Ten Million Dollars ($10,000,000.00), or (ii) Tenant's
Balance Sheet for Tenant's most recently completed quarterly
accounting period states with reference to Cash and Cash
Equivalents, Marketable Securities and Trade Receivables an
amount in the aggregate of less than Five Million Dollars
($5,000,000.00). For purposes of this lease, the term "quarterly
accounting period" shall mean calendar quarters ending March 31,
June 30, September 30 and December 31, respectively. For
purposes of this Lease, the term "Tenant's Balance Sheet" shall
mean that Balance Sheet prepared by the Certified Public
Accountant regularly servicing Tenant. Tenant shall provide
Landlord with a copy of its Balance Sheet no later than three (3)
days after Tenant's receipt thereof.
The principal amount of the Letter of Credit shall be
initially equal to Four Hundred Eighty-Six Thousand Six Hundred
Fifty-Six Dollars ($486,656.00) plus the then unpaid balance of
the Expansion Space Loan.
In the event a Letter of Credit is in fact posted, and
in the event that no event of default occurs pursuant to the
terms of this Lease, then the principal amount of the Letter of
Credit shall be reduced on the first day of the thirteenth
(13th), twenty-fifth (25th), thirty-seventh (37th) and forty-
third (43rd) months following the Triggering Event to the
respective amounts as follows:
Term of Letter of Credit Principal Amount of Letter of
Credit
Months 13 through 24 $364,992.00 plus the then unpaid
principal balance of the Expansion
Space Loan
Months 25 through 36 $243,328.00 plus the then unpaid
principal balance of the Expansion
Space Loan
Months 37 through 42 $121,664.00 plus the then-unpaid
principal balance of the Expansion
Space Loan
Month 43 and the No Letter of Credit shall be
remainder of the Lease required
Term
Each Letter of Credit shall have a term of twelve
(12) months commencing on the date of posting of the first Letter
of Credit, and each subsequent Letter of Credit will have a term
of twelve (12) months except the fourth Letter of Credit shall
have a term of six (6) months. Each Letter of Credit shall be
drawn by a commercial bank and in a form reasonably acceptable to
Landlord, provided, however, that it shall be a condition of each
Letter of Credit that (i) the holder must certify to the issuer
of the Letter of Credit that a monetary default has occurred
under the Lease and such monetary default has continued beyond
any applicable notice and cure period; and (ii) no draw against
the Letter of Credit shall be in an amount less than Five
Thousand Dollars ($5,000.00).
At least fifteen (15) days before the expiration
of the first Letter of Credit, Tenant shall provide Landlord with
a replacement Letter of Credit in the amount as provided above
and for a term to commence on the expiration date of the first
Letter of Credit and terminating on the last day of the twelfth
(12th) month thereafter, except for the fourth Letter of Credit
which shall have a term of six months. Each letter of Credit
shall be substantially similar to the prior Letter of Credit and
the replacement Letter of Credit (other than the term) must be
approved by Landlord, in its reasonable discretion, before the
commencement date of the replacement Letter of Credit.
The delivery of each replacement Letter of Credit
within fifteen (15) days before the expiration of each existing
Letter of Credit and the issuance of a new Letter of Credit every
twelve (12) months for a term of twelve (12) months (except with
respect to the fourth Letter of Credit as provided above) shall
continue for forty-two (42) months, and any reduction in the
amount of any replacement Letter of Credit after the first Letter
of Credit shall also be allowed as set forth above, as long as
there has been no uncured monetary default in the prior twelve
(12) months.
The fourth Letter of Credit shall expire on the
last day of the forty-second (42nd) month after the Triggering
Event. At the expiration of the forty-second (42nd) month after
the Triggering Event, Tenant shall no longer be required to
provide any further Letter of Credit pursuant to this paragraph
III.A. during the remainder of the Lease Term as it may be
extended. In addition to any and all other remedies available to
Landlord under this Lease, the Letter of Credit may be used at
any time by Landlord to cure or compensate Landlord for any
monetary default by Tenant under the Lease which continues
uncured beyond any applicable notice and cure period; provided
that no draw against any Letter of Credit shall be in an amount
less than Five Thousand Dollars ($5,000.00). To the extent
Landlord makes any such use of a Letter of Credit, Tenant will
immediately replenish it to its original amount. The Letter of
Credit may not be used or applied by Tenant in lieu of Basic
Annual Rent or any other rent provided hereunder.
Notwithstanding anything set forth above in this Paragraph III.A,
if within one (1) month before the expiration of the fourth
Letter of Credit there exists one or more monetary defaults by
Tenant under the Lease which have continued uncured beyond any
applicable notice and cure period, and which are in an amount of
less than Five Thousand Dollars ($5,000.00) in the aggregate,
Landlord shall have the right to draw against the fourth Letter
of Credit in an amount sufficient to compensate it for such
monetary default or defaults."
12. Adjustments to Square Footages, Percentages and
Addresses.
a. Paragraph III.C(l) (a) of the Lease shall be
amended by striking the parenthetical after "Phase 1" in its
entirety and replacing it with "25, 45 and 00 Xxxx Xxxxxxx Xxxx
Xxxx, respectively".
b . Paragraph III.C(l) (b) of the Lease shall be
amended by striking the phrase "located at 25, 35 and 00 Xxxx
Xxxxxxx Xxxx Xxxx, respectively" in the first sentence thereof
and replacing it with "located at 25, 45 and 00 Xxxx Xxxxxxx Xxxx
Xxxx, respectively". In addition, the term "Rentable Area of the
Buildings" will be deemed to be 134,546 square feet rather than
132,306 square feet in this Paragraph III.C(l)(b) and throughout
the Lease so that the term includes the Additional Expansion
Space. Finally, the third, fifth and sixth sentences of
Paragraph III.C(l)(b) of the Lease will apply to the Building as
expanded by the Additional Expansion Space.
c. Paragraph III.C(l) (c) of the Lease shall be
amended so that the term "Rentable Area of the Leased Premises"
shall be deemed to be 50,635 square feet rather than 40,843
square feet so that the term includes the Expansion Space. This
amended square footage number shall apply throughout the Lease to
all references to the square footage of the Leased Premises. In
addition, the second through final sentences of Paragraph
III.C(1)(c) of the Lease shall apply to the Expansion Space, and
the parties hereto acknowledge that certification of 9,792 square
feet as the gross rentable area of the Expansion Space has
occurred before the date first written above.
d. Paragraph III.C(l)(d) of the Lease shall be
amended so that the term "Rentable Area of the Building"
shall be deemed to be 50,635 square feet rather than 48,395
square feet so that the term includes the Expansion Space. This
amended square footage number shall apply throughout the Lease to
all references to the square footage of the Building.
e. Paragraph III.C(l)(e) of the Lease shall be
amended as of June 1, 1993 so that the term "Tenant's Portion
(with respect to the payment of Common Area Expenses, Taxes and
Insurance)" will be thirty-seven and sixty-three one-hundredths
percent (37.63%)(50,635/134,546) rather than 30.87%
(40,843/132,306) so that the term includes the Expansion Space.
This amended Tenant's Portion shall apply throughout the Lease.
f. The estimated amounts set forth in Paragraph
III.C(2)(a) and (b) of the Lease shall be amended as of June 1,
1993 by adding thereto the estimated amounts of such Taxes,
Insurance and Common Area Expenses for the Expansion Space.
Therefore, commencing on June 1, 1993, Tenant shall pay to
Landlord, in addition to the amounts set forth in the Lease
sections listed above, with and at the same time as the monthly
payments of Basic Annual Rent, the following amounts with respect
to the Expansion Space:
(i) Eight Hundred Seventy-Three Dollars and
Twelve Cents ($873.12) per month as one-twelfth of Tenant's
estimated Portion of Common Area Expenses, which amount includes
One Hundred Twenty-Two Dollars and Forty Cents ($122.40) per
month as one-twelfth of Tenant's estimated Portion of the
Insurance Costs. The limitation on increases in Common Area
Expenses under the Lease shall apply to Tenant's Portion of
Common Area Expenses for the Expansion Space, except that the
Common Area Expenses for the Expansion Space for the first Lease
Year shall not be limited in any way. Therefore, the fifth
paragraph of Paragraph III.C(2) of the Lease (commencing with the
phrase "Notwithstanding anything to the contrary ... "), shall
not apply to the Expansion Space.
(ii) One Thousand Two Hundred Thirty-Two Dollars
and Sixteen Cents ($1,232.16) per month as one-twelfth of
Tenant's estimated Portion of Taxes.
Notwithstanding the foregoing, with reference to the
Tenant's Portion (estimated and actual) of Common Area Expenses,
Insurance Cost and Taxes, the same will not be charged with
respect to the Additional Expansion Space until the Additional
Expansion Space is completed and tendered to Tenant; provided,
however, that if prior to the date the Additional Expansion Space
is completed and tendered to Tenant, Xxxxxxxxxx County, Maryland
assesses Taxes with respect to the Additional Expansion Space,
then and in such event, the Tenant's Portion with respect to
Taxes shall be increased to include the Additional Expansion
Space effective as of the effective date of Xxxxxxxxxx County's
assessment of Taxes with respect to the Additional Expansion
Space.
13. Environmental Assurances. Paragraph IV.G of the
Lease shall be amended by adding a new subsection (5) as follows:
"Landlord shall have prepared, at its expense, at the expiration
or earlier termination of the Lease Term as herein provided, a
certification (the "Audit") from a reputable environmental
company to the effect that based upon an inspection conducted by
such environmental audit company not more than thirty (30) days
prior to the expiration or termination of the Lease Term, the
Leased Premises comply with the requirements set forth in
subsection IV.G.(2)(a) above. In the event such Audit shows that
additional tests are necessary in order to give the required
certification, such additional costs shall be paid by tenant as
additional rent within thirty (30) days of receipt of an invoice
therefor from Landlord. In the event such Audit and/or any
additional tests show that compliance work is necessary in order
for the required certification to be given, all such compliance
work paid shall be promptly undertaken by Tenant, at Tenant's
sole cost and expense, in order for such certification to be
obtained as promptly as possible. In addition, Tenant promptly
shall reimburse Landlord for the cost of the original Audit as
additional rent within thirty (30) days of receipt of an invoice
from Landlord."
14. Assignment/Subletting. Paragraph X.A of the Lease
shall be amended by striking the last sentence of the second
paragraph thereof in its entirety.
15. Notices. Paragraph X.G of the Lease shall be
amended by striking Landlord's address in subsection (i) and
replacing it with "c/o Manekin Corporation, 0000 Xxxxxxxx Xxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attn: General Counsel".
16. Parking. Paragraph X-0 of the Lease shall be
amended by adding Tenant's right to the non-exclusive use of an
additional three and one-half (3.5) parking spaces per one
thousand (1,000) square feet of the Existing Expansion Space for
a total of Twenty-Seven (27) parking spaces. Therefore, in
addition to the 163 non-exclusive and 13 exclusive parking spaces
set forth ill the Lease, Tenant shall have the exclusive use of 2
of the twenty-seven (27) additional parking spaces, and the non-
exclusive use of 25 of the 27 additional parking spaces in the
front and rear of Building D.
17. Paragraph X.Q(9) shall be stricken in its entirety
and replaced with the following: "Tenant Financing of Equipment,
Fixtures, Etc. Landlord hereby agrees to subordinate any liens
or rights it has during the Lease Term so that Tenant may finance
or refinance, from time to time, its equipment, fixtures and
inventory, and Landlord agrees to execute promptly upon request
any and all such documents and/or instruments which reasonably
may be requested and are reasonably satisfactory to Landlord in
order to effectuate such subordination. Tenant is hereby granted
the right to assign this Lease as security to a lender; provided
that Landlord's then-current lender approves of each and every
such assignment in writing. If Landlord's then-current lender
approves any such assignment, then Landlord agrees to execute any
and all documents and/or instruments as may reasonably be
requested by Tenant and as are reasonably satisfactory to
Landlord and Landlord's then-current lender in order to
effectuate such security. Tenant shall reimburse Landlord as
additional rent within thirty (30) days of receipt of an invoice
from Landlord for all Landlord's legal costs and any and all
legal costs Landlord must pay to its then-current lender in order
to review Tenant's proposed assignment and all documents and/or
instruments effectuating the assignment as follows: (i) with
reference to Landlord's legal fees, an amount not in excess of
Five Hundred Dollars ($500.00) per assignment; and (ii) with
reference to Landlord's then-current lender, there shall be no
fee or cost; and (iii) with reference to any lender after its
then-current lender, an amount which is commercially reasonable
for that lender's legal cost with reference to any such
assignment."
18. Right of First Offer.
a. If at any time during the Lease Term any
portion of the existing space in the first phase of the Project
i.e., 25, 35 and/or 00 Xxxx Xxxxxxx Xxxx Xxxx (collectively, the
"First Offer Space") becomes available; i.e., unencumbered by a
lease with Landlord, then subject to the expansion rights of
other tenants in the Project as described on Exhibit E attached
hereto and made a part hereof, Tenant shall have the right of
first offer (the "First Offer Right") to lease such First Offer
Space. Landlord shall give Tenant prompt written notice of the
availability of the First Offer Space and the terms on which
Landlord is willing to lease it ("Landlord's Notice"); provided
that: (i) the basic annual rent for any such First Offer Space
shall equal ninety-five percent (95%) of the then-market rent for
such space, taking into consideration, among other things, the
cancellation options under Paragraph III.B of the Lease; (ii) in
no event shall the basic annual rent for any First Offer Space be
less than the Basic Annual Rent in effect during the immediately
preceding Lease Year; and (iii) the basic annual rent for any
First Offer Space shall increase by three and one-half percent
(3.5%) per annum compounded annually, on each anniversary of the
First Offer Commencement Date (as defined below). Market rent
shall be determined in the same manner as set forth in subsection
(iii) of Rider No. 1 of the Lease, taking into consideration the
cancellation options as set forth above.
Tenant's exercise of its First Offer Right shall
be effective only upon Tenant's written notice to Landlord
("Tenant's Notice") given five (5) days after Tenant's receipt of
Landlord's Notice. If Tenant does not duly exercise its First
Offer Right with respect to any particular First Offer Space,
Landlord shall be free to offer such Space for lease to any other
tenant on substantially the terms offered to Tenant hereunder.
If Landlord leases any such First Offer Space to another tenant
and such Space becomes available one or more times during the
Lease Term, Landlord shall not have to re-offer such space to
Tenant hereunder.
The first day of the lease term f or the First
Offer Space shall be the earlier to occur of (i) the ninetieth
(90th) day after Landlord provides Tenant access to the First
Offer Space in a broom-clean condition such that Tenant can
commence the construction of its improvements to the First Offer
Space; or (ii) the date Tenant begins to conduct its business
from the First Offer Space (the "First Offer Commencement Date").
b. Notwithstanding any other provision hereof,
the following provisions shall apply to the First Offer Right and
to Tenant's lease, if any, of the First Offer Space:
(i) Tenant shall not be entitled to exercise
the First Offer Right unless on the date Tenant gives Landlord
the First Offer Notice and on the First Offer Commencement Date:
(A) the Lease as hereby or hereafter amended, is in full force
and effect; (B) Tenant has paid to Landlord any and all amounts
which are then due from Tenant under this Lease and are in
arrears, including, without limitation, any and all late fees;
and (C) Tenant is not materially and/or substantially in default
beyond any applicable notice and cure period with reference to
any material or substantial non-monetary covenant in the Lease to
be performed, observed or complied with by Tenant;
(ii) Tenant's rental of the First Offer Space
shall be for a term commencing on the First Offer Commencement
Date and continuing through the balance of the Lease Term;
provided, however, that if on the First Offer Commencement Date
there are then less than five (5) full years remaining on the
Lease Term, then and in such event, the Lease Term (including the
First Offer Term) shall automatically be extended so as to expire
on the last day of the calendar month in which the fifth (5th)
annual anniversary of the First Offer Commencement Date occurs;
(iii) The First Offer Space shall be
delivered to Tenant in "as is" condition (i.e., there shall be no
Expansion Space Contribution or Expansion Space Loan with respect
thereto). Any improvements to the First Offer Space shall be
made by Tenant at Tenant's sole cost and expense and shall be
performed at Tenant's sole cost and expense and shall be
performed in accordance with drawings, plans and specifications
prepared by Tenant and approved by Landlord, such approval not to
be unreasonable withheld;
(iv) From and after the First Offer
Commencement Date, all references in the Lease and Riders thereto
to the Leased Premises shall refer to the aggregate Premises and
the First Offer Space and all references to the area or Rentable
Area of the Leased Premises shall, for all purposes of this
Lease, be deemed to include both the area of the Leased Premises
and of the First Offer Space. Tenant's Portion shall be adjusted
accordingly to reflect the leasing of the First Offer Space; and
(v) Except as otherwise expressly
provided in this Paragraph 18, from and after the First Offer
Commencement Date, all of the covenants and agreements set forth
in the Lease and Riders thereto shall apply to the First Offer
Space.
c. Time is of the essence with respect to Tenant's
exercise of its rights under this Paragraph 18. Tenant
acknowledges that Landlord requires strict adherence to the
requirement that Tenant's Notice be timely made and in writing.
19. Tenant Authorization. Tenant represents and
warrants to Landlord that this First Amendment has been validly
authorized and is executed by an authorized officer of Tenant and
that its terms are binding upon and enforceable against Tenant in
accordance Herewith.
20. Lease as Amended. From and after the full
execution of this First Amendment, the Lease shall be amended and
in full force and effect in such respects as are set forth in
this First Amendment, and all other provisions, terms, conditions
and riders of and to the Lease shall in all respects remain as
set forth in the Lease, in full force and effect and applicable
to the Expansion Space, except as specifically set forth in this
First Amendment.
21. Tenant Reaffirmation of Lease. Tenant hereby
reaffirms and restates, and agrees to be bound by, the covenants,
promises, representations and agreements set forth in the Lease
(except to the extent that they are expressly superseded by this
First Amendment) as if made herein.
LANDLORD:
WITNESS/ATTEST: XXXXXXX ROAD ASSOCIATES,
a Maryland general partnership
By: M.O.R.M. Associates Limited
Partnership
By: RA & FM, Inc.
Xxxxxx X. Xxxxxxxx By: Xxxxxxx X. Xxxxx(SEAL)
Name: Xxxxxxx X. Xxxxx
Title: President
TENANT:
WITNESS MEDIMMUNE, INC., a Delaware
Corporation
Xxxxx X. Xxxx By: Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: Senior Vice President
Finance and Administration
STATE OF MARYLAND )
)TO WIT:
COUNTY OF BALTIMORE )
I HEREBY CERTIFY that on this 8th day of June, 1993, before
me, the subscribed, a Notary Public of the State and county
aforesaid, personally appeared Xxxxxxx X. Xxxxx, President of RA
& FM, Inc., a general partnership of M.O.R.M. Associates Limited
Partnership, general partner of Xxxxxxx Road Associates, and he
acknowledged the foregoing Lease Agreement to be the act and deed
of said general partnership.
WITNESS my hand and Notarial Seal.
Xxxxx X. Xxxxxxx
Notary Public
Baltimore Co., MD
My Commission Expires: May 1, 1995
STATE/COMMONWEALTH OF MARYALND )
)TO WIT:
COUNTY OF XXXXXXXXXX )
I HEREBY CERTIFY that on this 7th day of June, 1993, before
me, the subscribed, a Notary Public of the State/Commonwealth and
County aforementioned, personally appeared Xxxxxx X. XxXxxxxxx of
MedImmune, Inc., Tenant, and he acknowledged the foregoing Lease
Agreement to be his/the act and deed of the corporation.
WITNESS my hand and Notarial Seal.
Xxxxx X. Xxxxx
Notary public
My Commission Expires: July 11, 1994
