Exhibit 10.25.1
AMENDED AND RESTATED
LEASE AGREEMENT
[PHASE 1A: OFFICE / LABORATORY]
This AMENDED AND RESTATED LEASE AGREEMENT (this "LEASE"), executed as of
April ___, 2000, and effective as of July 27, 1999 (the "EFFECTIVE DATE"), is
made between ARE-104 ALEXANDER ROAD, LLC, a Delaware limited liability company
("LANDLORD"), and PARADIGM GENETICS, INC., a Delaware corporation (formerly a
North Carolina corporation) ("TENANT"), and amends, restates, and supersedes in
its entirety that certain Lease Agreement dated as of July 27, 1999, between
Landlord and Tenant (which Lease Agreement is evidenced of record by a certain
Memorandum of Lease Agreement (the "LEASE MEMORANDUM") dated as of July 27,
1999, and recorded July 27, 1999, in Book 2684, Page 810 of the Official Records
of Durham County, North Carolina (the "OFFICIAL RECORDS")).
RECITALS
A. Landlord has entered into a Ground Lease Agreement dated as of July 27,
1999 (the "ORIGINAL GROUND LEASE"), with Triangle Service Center, Inc., a North
Carolina corporation ("GROUND LESSOR"), pursuant to which Landlord has ground
leased approximately 6.084 acres of land within the Triangle Park Research
Center (which is located within Research Triangle Park ("RTP"), Durham County,
North Carolina), as more fully described in Exhibit A-1 (the "SITE"). The
Original Ground Lease is evidenced of record by a certain Memorandum of Ground
Lease dated as of July 27, 1999, and recorded July 27, 1999, in Book 2684, Page
795 of the Official Records. In addition, Ground Lessor and Landlord have
entered into or, concurrently with the execution of this Lease, are entering
into, (i) a certain Agreement Regarding Allocation of Development Rights (the
"DEVELOPMENT RIGHTS AGREEMENT") (which will be evidenced of record by a certain
Memorandum of Agreement Regarding Allocation of Development Rights to be
recorded in the Official Records), and (ii) a certain First Amendment to Ground
Lease Agreement (the "GROUND LEASE AMENDMENT"). The Original Ground Lease, the
Ground Lease Amendment, and any other subsequent amendments or modifications
thereto shall be referred to collectively as the "GROUND LEASE".
B. In Section 2.d. of the Original Ground Lease, Ground Lessor grants
Landlord an option (the "EXPANSION OPTION") to ground lease approximately 4.916
additional acres of land adjacent to the Site, as more fully described in
Exhibit A-2 (the "ADDITIONAL SITE"). The Expansion Option is evidenced of record
by a certain Grant of Easements and Memorandum of Option To Ground Lease dated
as of July 27, 1999, and recorded July 27, 1999, in Book 2684, Page 802 of the
Official Records. Landlord may exercise the Expansion Option by delivering
written notice to Ground Lessor at any time prior to the 3rd anniversary of the
"RENT COMMENCEMENT DATE" (as defined in the Ground Lease; hereafter, the "GROUND
LEASE RENT COMMENCEMENT DATE").
C. Landlord desires to lease to Tenant, and Tenant desires to lease from
Landlord, certain improvements that Landlord is hereby agreeing to cause to be
constructed, or to permit to be constructed, on the Site, including, but not
limited to, a first-class scientific research and development building (the
"BUILDING").
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D. Concurrently with the execution of this Lease, Landlord and Tenant
are entering into a separate Lease Agreement (the "GREENHOUSE LEASE") for the
lease of certain other improvements that Landlord is agreeing to cause to be
constructed, or to permit to be constructed, on other parts of the Site,
including, but not limited to, a plant analysis and growth room facility, a
commercial greenhouse, and a headhouse (collectively, the "GREENHOUSE").
BASIC LEASE PROVISIONS
ADDRESS: 000 Xxxxxxxxx Xxxxxx, XXX, Xxxxx Xxxxxxxx.
PREMISES: The Building, containing approximately 54,463 rentable
square feet, as more fully described in Exhibit B.
BASE RENT: Equal monthly installments of base rent, such base rent to
be calculated using the formula set forth in Section 3(a)
below, which formula is based on the incremental levels of
"BUILDING ALLOWANCE" (as defined below) disbursed to Tenant
for use by Landlord in the construction of all portions of
the "PROJECT" (as defined below) other than the Greenhouse.
RENT ADJUSTMENT
PERCENTAGE: 5.00%.
TENANT'S SHARE: 63.15%.
RENTABLE AREA
OF PREMISES: Building: approximately 54,463 sq. ft.
RENTABLE AREA
OF PROJECT: Building: approximately 54,463 sq. ft.;
Greenhouse: approximately 31,776 sq. ft.;
Total: approximately 86,239 sq. ft.
TARGET
COMMENCEMENT DATE: September 11, 2000.
SECURITY DEPOSIT: An amount equal to the sum of 6 monthly payments of Base
Rent (estimated as of the date hereof as approximately
$560,000.00).
TERM: The initial term of this Lease shall expire on the
same date that the initial term of the Greenhouse Lease
expires (estimated as of the date hereof to be
approximately 121 months from the 1st day of the 1st full
month following the month in which the Commencement Date
occurs).
TERM EXTENSIONS: 2 options to extend the Term for 5 years each.
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PERMITTED USE: Scientific research and development facility, including
laboratory and related administrative space.
LANDLORD'S BROKER: None.
TENANT'S BROKER: Advantis Realty (formerly known as Xxxxxxx Xxxxx).
ADDRESS FOR RENT PAYMENT: LANDLORD'S NOTICE ADDRESS
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000 000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000 Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Accounts Receivable Attention: General Counsel
TENANT'S NOTICE ADDRESS:
000 Xxxxxxxxx Xx., Xxxxxxxx 0
XXX, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxx Xxxxx
Chief Financial Officer
The following Exhibits are or will be attached hereto and are incorporated
herein by this reference:
[X] EXHIBIT A-1 - DESCRIPTION OF SITE [ ] EXHIBIT G - ORIGINAL SECURITY AMOUNT
[X] EXHIBIT A-2 - DESCRIPTION OF ADDL SITE [X] EXHIBIT H - RULES AND REGULATIONS
[X] EXHIBIT B - DESCRIPTION OF PREMISES [X] EXHIBIT I - TENANT'S PERSONAL PROPERTY
[X] EXHIBIT C - WORK LETTER [X] EXHIBIT J - ESTOPPEL CERTIFICATE
[ ] EXHIBIT D - COMMENCEMENT DATE; TERM [X] EXHIBIT K - LOAN SUBORDINATION AGMT
[ ] EXHIBIT E - BASE CONSTR COSTS; BLDG [X] EXHIBIT L - LEASE SUBORDINATION AGMT
ALLOWANCE; BASE RENT [X] EXHIBIT M -ENVIRONMENTAL INFORMATION
[ ] EXHIBIT F - GROUND LEASE RENT
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Lease, the receipt and legal sufficiency of which are hereby
acknowledged by the parties hereto, Landlord and Tenant hereby agree as follows:
1. LEASE OF PREMISES. Landlord hereby leases the Premises to Tenant and
Tenant hereby leases the Premises from Landlord, effective as of the
"COMMENCEMENT DATE" (as defined below) for the Term set forth in the Basic Lease
Provisions, upon and subject to all of the terms and conditions of the Ground
Lease. The Site and all improvements thereon and appurtenances thereto are
collectively referred to herein as the "PROJECT", and the portions of the
Project that are for the non-exclusive use of Tenant and the guests, invitees,
licensees, and other authorized users of the Project (including, without
limitation, Ground Lessor and any approved subtenants) are collectively referred
to herein as the "COMMON AREAS" (all as more fully described in Exhibit B).
Landlord reserves the right to modify the Common Areas, provided
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that such modifications do not materially adversely affect Tenant's use of the
Premises for the Permitted Use.
2. DELIVERY; COMMENCEMENT DATE; ACCEPTANCE OF PREMISES.
(a) Landlord shall use commercially reasonable efforts to deliver the
Premises to Tenant ("DELIVER" or "DELIVERY") on or before the Target
Commencement Date, with "LANDLORD'S WORK" (as defined in the Amended and
Restated Work Letter attached as Exhibit C (the "WORK LETTER")) "SUBSTANTIALLY
COMPLETED" (as defined in the Work Letter). If Landlord Delivers the Premises
Substantially Completed before the Target Commencement Date, Tenant shall pay to
Landlord, in addition to any "RENT" (as defined in Section 3(c) below) then due
under this Lease, a sum equal to 1/2 day of Rent for each day that such Delivery
precedes the Target Commencement Date. If Landlord fails to timely Deliver the
Premises Substantially Completed, Landlord shall not be liable to Tenant for any
loss or damage resulting therefrom, and this Lease shall not be void or
voidable, except as may be expressly provided otherwise herein.
(i) Notwithstanding the foregoing, if Landlord does not Deliver the
Premises Substantially Completed by the Target Commencement Date and the
aggregate delay that is due solely to "LANDLORD CAUSED DELAYS" (as defined
below) exceeds 120 days, this Lease shall be voidable by Tenant by giving
Landlord "NOTICE" (as defined in Section 44(a) below) of Tenant's election to
void this Lease within 5 business days after such 120th day, and if voided: (A)
the Security Deposit (if paid) 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 that expressly survive termination
of this Lease (as provided in Section 28 below). Except as may be expressly
provided otherwise herein, Tenant's right to void this Lease shall be Tenant's
sole and exclusive remedy at law, in equity, or otherwise for Landlord's failure
to timely Deliver the Premises Substantially Completed. If Tenant does not give
Landlord Notice of Tenant's election within the required 5 business days,
Tenant's right to void this Lease shall terminate and this Lease shall continue
in full force and effect. If Landlord Delivers the Premises Substantially
Completed after the Target Commencement Date but the aggregate delay that is due
solely to Landlord Caused Delays does not exceed 120 days, or the aggregate
delay that is due solely to Landlord Caused Delays exceeds 120 days but Tenant
does not timely elect to void this Lease, Tenant shall be entitled to an
abatement of Rent equal to 1 day of Rent for each day of the delay that is due
solely to Landlord Caused Delays. As used herein, the term "LANDLORD CAUSED
DELAY" shall mean any delay occurring after March 1, 2000, for a reason other
than a "TENANT CAUSED DELAY" (as defined in the Work Letter) or a "FORCE MAJEURE
DELAY" (as defined in the Work Letter). Landlord hereby acknowledges and agrees
that Tenant is entitled to 51 days abatement of Rent for all delays (whether
Landlord Caused Delays or Force Majeure Delays) that occurred on or before March
1, 2000.
(ii) Notwithstanding the foregoing, (A) if Landlord Delivers the
Premises Substantially Completed after the Target Commencement Date and the
aggregate delay that is due solely to Force Majeure Delays does not exceed 120
days, Tenant shall not be entitled to any abatement of Rent for the delay that
is due solely to Force Majeure Delays, (B) if Landlord Delivers the Premises
Substantially Completed after the Target Commencement Date and the aggregate
delay that is due solely to Force Majeure Delays exceeds 120 days but does not
exceed 240 days, Tenant shall be entitled to an abatement of Rent equal to 1/2
day of Rent for each day of Force Majeure Delays in excess of 120 days, and (C)
if Landlord Delivers the Premises Substantially Completed after the Target
Commencement Date and the aggregate delay that is due solely to Force Majeure
Delays exceeds 240 days,
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Tenant shall be entitled to an abatement of Rent equal to 1 day of Rent for each
day of Force Majeure Delays in excess of 240 days; provided, however, that, for
purposes of this Section 2(a)(ii), Force Majeure Delays shall not include any
delays resulting from a "FORCE MAJEURE" (as defined in Section 34 below) that is
solely attributable to "PRE-EXISTING CONTAMINATION" (as defined in Section
19.a.xii. of the Ground Lease).
(b) The "COMMENCEMENT DATE" shall be earliest of: (i) the date Landlord
Delivers the Premises Substantially Completed; (ii) the date Landlord could
have Delivered the Premises Substantially Completed but for Tenant Caused
Delays or Force Majeure Delays; and (iii) the date Tenant conducts any
business in any part of the Premises; provided, however, that, for purposes
of this Section 2(b), Force Majeure Delays shall not include any delays
resulting from a Force Majeure that is solely attributable to Pre-Existing
Contamination. Upon either party's request, the other party shall execute
and deliver a written acknowledgment of the Commencement Date and the
expiration date of the Term, when the same have been established, and shall
attach the acknowledgment to this Lease as Exhibit D; provided, however,
either party's failure to execute and deliver such acknowledgment shall not
affect the other party's rights hereunder.
(c) Except as may be expressly provided otherwise in the Work Letter, Tenant
shall accept the Premises in their condition as of the Commencement Date,
subject to all applicable laws, ordinances, regulations, covenants, and
restrictions. Neither Landlord nor any agent of Landlord has made or will
make any representation or warranty with respect to the condition of any or
all of the Premises or the Project and/or the suitability of the Premises
for the conduct of Tenant's business, and Tenant waives any implied
warranty that the Premises are suitable for Tenant's intended purposes.
Except as may be expressly provided otherwise in the Work Letter: (i)
Landlord has no obligation for any defects in the Premises; and (ii)
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, including the obligation to pay Rent.
3. RENT.
(A) BASE RENT. As more fully described in the Work Letter, Landlord is making
available to Tenant an allowance (the "BUILDING ALLOWANCE") to be used by
Tenant solely for the costs of designing and constructing all portions of
the Project other than the Greenhouse, which costs shall include, but not
be limited to, payments to surveyors, engineers, architects, consultants,
contractors, sub-contractors, and all other persons and laborers of every
class providing services, performing labor, or furnishing skill or other
necessary services used in or contributing to such construction, the cost
of materials or equipment used or consumed in such construction, the cost
(including legal and engineering fees and disbursements) of obtaining,
maintaining, renewing, or revising permits, licenses, approvals,
certificates, or other entitlements, utility connection fees, premiums and
fees for all insurance maintained by Landlord in connection with the
construction, initial financing and debt service (including principal),
"land acquisition" costs (which shall include up to $20,000.00 of all
environmental, site evaluation, engineering, and title fees, premiums, and
disbursements, plus 50.00% of all legal fees and disbursements incurred by
Landlord in negotiating the Ground Lease and the Development Rights
Agreement and in performing due diligence in connection therewith), all
real estate brokerage commissions or fees, all "ADMINISTRATIVE RENT" (as
defined in Section 6.1 of the Work Letter), and all "TAXES" (as defined in
Section 9 below) that become due and payable while construction is being
performed (collectively, the "BASE CONSTRUCTION COSTS").
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The maximum amount of the Building Allowance shall be $153.25 per rentable
square foot of the Building, provided that under no circumstances (including an
increase in the rentable square footage of the Building) shall the aggregate
amount of the Building Allowance exceed $8,350.00. For each incremental level of
Building Allowance disbursed to Tenant (adjusted for any amounts actually
received by Landlord as reimbursement under Sections 19.b. or 19.d. of the
Ground Lease and retained by Landlord pursuant to the terms and condition of a
certain Cost Sharing Agreement dated July 27, 1999, between Landlord and Tenant
(the "COST SHARING AGREEMENT")), Tenant shall pay to Landlord the amount ("BASE
RENT") set forth for such increment on the following schedule:
Building Allowance Incremental Base Rent
(Per Rentable Square Foot) (Per Rentable Square Foot Per Month)
$0.00 to $55.00 $0.5500
$55.01 to $95.00 add $0.4334
$95.01 to $115.00 add $0.2334
$115.01 to $135.00 add $0.2500
$135.01 to $153.25 add $0.2334
For illustration purposes only, the aggregate monthly Base Rent will be $1.7102
per rentable square foot if the entire $153.25 per rentable square foot Building
Allowance is disbursed to Tenant (and, if the rentable square footage of the
Building is 54,463 sq. ft., the aggregate monthly Base Rent will be $93,142.62).
Upon either party's request, the other party shall execute and deliver a written
acknowledgment of the aggregate Base Construction Costs, the aggregate Building
Allowance actually disbursed to or for the benefit of Tenant (adjusted for any
amounts actually received by Landlord as reimbursement under Sections 19.b. or
19.d. of the Ground Lease and retained by Landlord pursuant to the terms and
condition of the Cost Sharing Agreement), and the initial monthly Base Rent
computed on such aggregate Building Allowance (as adjusted), when the same have
been established, and shall attach the acknowledgment to this Lease as Exhibit
E; provided, however, either party's failure to execute and deliver such
acknowledgment shall not affect the other party's rights hereunder. Tenant
hereby acknowledges and agrees that the aggregate Base Construction Costs may
exceed the aggregate Building Allowance and that Tenant may be responsible for
any such excess, as provided in the Work Letter (including, but not limited to,
Section 6.2 thereof).
(b) ADDITIONAL RENT. In addition to Base Rent, Tenant shall pay to Landlord
all of the following as additional rent ("ADDITIONAL RENT"):
(i) Tenant's Share (as set forth in the Basic Lease Provisions) of "OPERATING
EXPENSES" (as defined in Section 5 below). Tenant's Share shall be
reasonably adjusted by Landlord following a measurement of the rentable
square footage of the Premises and the Project to be done by Landlord
within 60 days of the 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
measurement required under this Lease 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)).
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(ii) "GROUND LEASE RENT" (as defined below). Subject to the terms and
conditions of Section 38(b) below, Tenant shall pay to Landlord, in equal
monthly installments, an annual amount ("GROUND LEASE RENT") equal to the
annual rent payable by Landlord under the Ground Lease, as the same may be
adjusted from time to time pursuant to the terms and conditions of the
Ground Lease, with any such adjustment to be effective hereunder at the
same time that such adjustment is effective under the Ground Lease. Upon
either party's request, the other party shall execute and deliver a
written acknowledgment of the Ground Lease Rent payable hereunder, when
the same has been established and whenever such is adjusted, and shall
attach the acknowledgment to this Lease as Exhibit F; provided, however,
either party's failure to execute and deliver such acknowledgment shall
not affect the other party's rights hereunder. Ground Lease Rent shall be
payable commencing on the later of the Commencement Date or the Ground
Lease Rent Commencement Date, and all monthly installments of Ground Lease
Rent shall be paid in advance on or before the 3rd business day prior to
the 1st day of each calendar month during the Term and during any Term
Extension.
(iii) 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" (as defined in Section
20 below) or other 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.
(c) RENT. Base Rent and Additional Rent shall together be denominated "RENT".
All monthly installments of Rent other than Ground Lease Rent shall be
paid in advance on or before the 1st day of each calendar month during the
Term and during any Term Extension. Payments of Rent for any fractional
calendar month shall be prorated and paid on the basis of a 30-day month.
Tenant's obligation to pay Rent and other sums to Landlord under this
Lease and Landlord's obligations under this Lease shall be separate and
independent obligations. Except to the extent, and only to the extent,
expressly provided otherwise in Sections 2(a)(i) and (ii) above, all Rent
shall be paid to Landlord without demand, abatement, reduction, deduction,
or set-off, in lawful money of the United States of America at the office
of Landlord for payment of Rent set forth in the Basic Lease Provisions,
or to such other person or at such other place as Landlord may from time
to time designate in writing.
4. RENT ADJUSTMENTS. Base Rent shall be increased on the 3rd annual
anniversary of the 1st day of the 1st full month during the Term, and on each
annual anniversary of such date thereafter during the remainder of the Term, by
multiplying the Base Rent payable immediately before such adjustment by the Rent
Adjustment Percentage and adding the resulting amounts to the Base Rent payable
immediately before such adjustment. Base Rent, as so adjusted, shall thereafter
be due as provided herein. Rent adjustments for any fractional calendar month
shall be prorated.
5. OPERATING EXPENSE PAYMENTS. No later than 10 business days prior to the
1st day of the 1st full month during the Term and no later than 30 days prior to
the 1st day of each calendar year during the Term and any Term Extension,
Landlord shall deliver to Tenant a written estimate of Operating Expenses for
the remainder of the calendar year or for the following calendar year, as the
case may be (the "ANNUAL ESTIMATE"), which may be revised by Landlord from time
to time during the relevant calendar year. During each month of the Term and any
Term Extension, Tenant shall pay Landlord an amount equal to 1/12th of the
annual cost, as reasonably estimated by Landlord from time to time, of Tenant's
Share of Operating Expenses for the Project. The term "OPERATING EXPENSES" means
all reasonable costs and expenses of any kind or description whatsoever incurred
or accrued by Landlord with respect to
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the Project (including, without limitation, the rent (as the same may be
adjusted from time to time) and all expenses to be paid or reimbursed by
Landlord under the Development Rights Agreement, maintenance and repair costs,
insurance premiums (for the insurance described in Section 17 below), Taxes,
"UTILITIES" (as defined in Section 11 below), costs of capital repairs and
improvements (amortized over the useful life of the improvement, not to exceed 7
years), reasonable reserves consistent with good business practice for future
repairs and replacements, and administrative rent for management services in the
amount of 2.50% of the then applicable Base Rent), excluding only:
(a) the original construction costs of the Project (including Base Construction
Costs);
(b) capital expenditures for expansion of the Project or for the remodeling or
refurbishment of the Project to a materially higher standard than existed
on the Commencement Date;
(c) costs directly and solely attributable to correcting a "CONSTRUCTION
DEFECT" (as defined in the Work Letter);
(d) interest and amortization of funds borrowed by Landlord, whether secured or
unsecured;
(e) depreciation of the Project (except for capital improvements the cost of
which are specifically includable in Operating Expenses);
(f) salaries, wages, or other compensation paid to officers and employees of
Landlord who are not assigned to the operation, management, maintenance, or
repair of the Project;
(g) any expenses otherwise includable within Operating Expenses to the extent
actually reimbursed by persons other than Tenant;
(h) legal expenses incurred in the negotiation of this Lease;
(i) costs relating to maintaining Landlord's existence, either as a
corporation, partnership, or other entity;
(j) costs (including "LEGAL FEES" (as defined in Section 44(k) below)) arising
from the enforcement of this Lease or claims, disputes, or potential
disputes pertaining to Landlord and/or the Project;
(k) costs incurred by Landlord due to the violation by Landlord of the terms
and conditions of this Lease;
(l) costs incurred by Landlord due to the violation by Landlord of any "LEGAL
REQUIREMENTS" (as defined in Section 7 below);
(m) tax penalties 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;
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(n) overhead or profit increment paid to Landlord or to subsidiaries or
affiliates of Landlord for the provision of goods and/or services in or to
the Project, but only to the extent the same exceeds the overhead or profit
increment that would be paid to unaffiliated third parties on a competitive
basis for providing the same goods and/or services;
(o) costs arising from Landlord's charitable or political contributions;
(p) costs incurred in the sale or refinancing of the Project;
(q) net income, franchise, capital stock, estate, or inheritance taxes; and
(r) any costs of constructing, repairing, or maintaining any new improvement
within the Project, or of providing any new and recurring service, where
the new improvement or the new service is not requested or approved by
Tenant, and (i) there is or will be no material benefit to Tenant from the
new improvement or the new service, or (ii) regardless of the benefit to
Tenant, construction of the new improvement commences or the new service is
first provided in the final 12 months of the Term or the first Term
Extension and Tenant has elected not to exercise its then applicable
Extension Right.
Within 120 days after the end of each calendar year, Landlord shall furnish
to Tenant a statement (an "ANNUAL STATEMENT") showing in reasonable detail: (i)
the total and Tenant's Share of actual Operating Expenses for the previous
calendar year, and (ii) 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 immediately due and payable by Tenant as Rent. If Tenant's payments of
Operating Expenses for such year exceed Tenant's Share of actual Operating
Expenses for such year, Landlord shall, in its sole and absolute discretion,
either: (x) credit the excess amount to the next succeeding installments of
estimated Operating Expenses due hereunder, or (y) pay the excess to Tenant
within 30 days after delivery of such Annual Statement.
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 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 access to Landlord's books
and records and such information as Landlord reasonably determines to be
responsive to Tenant's questions. If, after Tenant's review of such
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 from among the 6 largest in the United States,
hired by Tenant (at Tenant's sole cost and expense) and approved by Landlord
(which approval shall not be unreasonably withheld or delayed), audit and/or
review such Landlord's books and records 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 Tenant's
pro rata share of the Operating Expenses actually paid by Tenant for the
calendar year in question exceeded Tenant's obligations for such calendar year,
Landlord shall at Landlord's option either (i) credit the excess amount to the
next succeeding installments of estimated Operating Expenses due hereunder, or
(ii) pay the excess to Tenant within 30 days after delivery of the results of
such Independent Review, except that after expiration or termination of the Term
or any Term Extension, Landlord shall pay the excess to Tenant after deducting
all other amounts due Landlord. If the
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Independent Review shows that Tenant's payments of Tenant's Share of Operating
Expenses for such calendar year were less than Tenant's obligation for the
calendar year, Tenant shall pay the deficiency to Landlord within 30 days after
delivery of the results of such Independent Review. If the Independent Review
shows that Tenant has overpaid Tenant's pro rata share of Operating Expenses by
more than 5.00%, 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.
6. SECURITY DEPOSIT.
(a) Tenant shall deposit with Landlord on the Commencement Date security for
the performance of all of Tenant's obligations hereunder (the "SECURITY
DEPOSIT") in an amount equal to 6 monthly payments of Base Rent (the
"ORIGINAL SECURITY AMOUNT"). Upon either party's request, the other party
shall execute and deliver a written acknowledgment of the Original Security
Amount, when the same has been established, and shall attach the
acknowledgment to this Lease as Exhibit G; provided, however, either
party's failure to execute and deliver such acknowledgment shall not affect
the other party's rights hereunder. At least one-sixth of the Security
Deposit shall be in cash and up to five-sixths of the Security Deposit may
be in the form of an unconditional and irrevocable letter of credit (a
"LETTER OF CREDIT"); provided, however, that the entire Security Deposit
may be in the form of a Letter of Credit at any time after Tenant completes
an initial public offering of Tenant's capital shares. Landlord shall hold
the cash portion of the Security Deposit in an interest bearing account
(which may contain Landlord's own funds), with any interest accruing on
such cash portion being for Tenant's benefit. Any Letter of Credit that
constitutes a portion of the Security Deposit: (i) shall be in form and
substance satisfactory to Landlord, in Landlord's sole and absolute
discretion; (ii) shall name Landlord as sole beneficiary; (iii) shall not
refer to this Lease, the Project, or the Premises or any circumstances,
factors, or rights that might be related thereto, but shall expressly allow
Landlord to draw upon the Letter of Credit in any amount, and at any time
and from time to time, simply by delivering to the issuer a clean sight
draft on the Letter of Credit, without any other demand, statement, or
other representation regarding Landlord's rights under this Lease or with
respect to the Letter of Credit; (iv) shall be drawable on an FDIC-insured
financial institution satisfactory to Landlord, in Landlord's reasonable
discretion, with any draws to be payable from such financial institution's
own immediately available funds; (v) shall be drawable at the branch or
office of the issuer that Landlord may choose, in Landlord's sole and
absolute discretion; and (vi) shall expressly allow Landlord to draw the
full amount of the Letter of Credit 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 such Letter of
Credit.
(b) If, at any time during the Term or any Term Extension, Tenant satisfies
both the "NET WORTH TEST" (as defined below) and the "PROFITABILITY TEST"
(as defined below) (each, a "REDUCTION REQUIREMENT" and collectively, the
"REDUCTION REQUIREMENTS"), then the Original Security Amount shall be
reduced to an amount equal to 3 monthly payments of Base Rent (the "REDUCED
SECURITY AMOUNT"). For purposes of this provision, the "NET WORTH TEST"
shall be deemed satisfied at any time that: (i) Tenant's stock is listed on
either the New York Stock Exchange or the NASDAQ stock market, and (ii)
Tenant has maintained a net worth of at least $100,000,000.00, using a
market capitalization analysis based on the daily closing trading price of
Tenant's common stock, for the immediately preceding consecutive 90
business days. For purposes of this provision, the "PROFITABILITY TEST"
shall be deemed satisfied at any time that: (x) Tenant's net revenues after
taxes for the immediately preceding fiscal year exceed $100,000,000.00, and
(y) the aggregate amount of Tenant's "LIQUID ASSETS" (as defined below),
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Paradigm Genetics, Inc.--Page 11
as certified by a nationally recognized, independent public accounting firm
or as demonstrated in annual audited financial statements, equals or
exceeds Tenant's anticipated expenses for the shorter of (1) 30 months and
(2) the remainder of the Term. For purposes of the Profitability Test, (A)
"LIQUID ASSETS" shall mean all cash, cash equivalents, liquid short term
investments, and short term accounts receivables from unrelated third
parties, and (B) the phrase "REMAINDER OF THE TERM" shall include any
period for which Tenant has an "EXTENSION RIGHT" (as defined in Section
41(a) below), regardless of whether any such Extension Right has been
exercised, unless such Extension Right has been waived or otherwise is no
longer exercisable (provided, however, that under no circumstances shall
the "REMAINDER OF THE TERM" be fewer than 12 months, unless there are fewer
than 3 months actually remaining in the Term and any Term Extension that
may be available to Tenant, in which case the "REMAINDER OF THE TERM" shall
be deemed to be 6 months). Within 60 days after Tenant provides Landlord
with written evidence reasonably satisfactory to Landlord demonstrating
that Tenant then satisfies both of the Reduction Requirements, Landlord
shall pay to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) any balance of the Security Deposit then held
by Landlord (including accrued interest, if any), less an amount equal to
the Reduced Security Amount (provided, however, that if any portion of the
Security Deposit is then in the form of a Letter of Credit, Landlord will
return such Letter of Credit to Tenant upon Tenant's delivery to Landlord
of cash (if then required hereunder) plus a substitute Letter of Credit
complying with all of the requirements hereof in an aggregate amount equal
to the Reduced Security Amount). The Reduced Security Amount shall be
deemed to be the amount of the "SECURITY DEPOSIT" for all purposes related
to this Lease from and after the date that Landlord returns to Tenant any
portion of the Original Security Amount in accordance with this provision.
Notwithstanding the foregoing, the Security Deposit shall be increased to
the Original Security Amount if there is a Default or if Tenant fails to
continue to satisfy both of the Reduction Requirements. Landlord shall have
the right (not to be exercised more than twice each calendar year) to
request written evidence from Tenant demonstrating that Tenant continues to
meet both of the Reduction Requirements. Tenant shall pay to Landlord the
amount of the difference between the Reduced Security Amount and the
Original Security Amount within 15 days after Landlord gives Tenant written
demand to do so (provided, however, that if any portion of the Reduced
Security Amount is then in the form of a Letter of Credit, Landlord will
return such Letter of Credit to Tenant upon Tenant's delivery to Landlord
of cash (if then required hereunder) plus a substitute Letter of Credit
complying with all of the requirements hereof in an aggregate amount equal
to the Original Security Amount). The Original Security Amount shall be
deemed to be the amount of the "SECURITY DEPOSIT' for all purposes related
to this Lease from and after the date that Landlord gives Tenant written
demand to increase the Reduced Security Amount in accordance with this
provision.
(c) Landlord shall hold the Security Deposit 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 a
Default. At any time that Landlord reasonably believes that a Default has
occurred and remains uncured, Landlord may use all or any part of the
Security Deposit (including accrued interest, if any) to pay or perform any
obligation of Tenant under this Lease or to compensate Landlord for any
loss or damage resulting from any 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 deposit with Landlord, within
5 days after Landlord gives Tenant a written demand therefor, cash (or, if
appropriate, a substitute Letter of Credit complying with all of the
requirements hereof) in the amount that will restore the Security Deposit
to its required amount. 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
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proceedings. Tenant hereby waives the provisions of any law, now or
hereafter in force, that 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 leased
premises, it being agreed that Landlord may claim, in addition, 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.
(d) If Landlord transfers its interest in the Project or this Lease, Landlord
shall either (i) transfer any balance of the Security Deposit then held by
Landlord (including accrued interest, if any) to a person or entity
assuming Landlord's obligations under this Section, or (ii) pay to Tenant
any balance of the Security Deposit then held by Landlord (including
accrued interest, if any). Upon the transfer to such transferee or the
payment to Tenant, Landlord shall have no further obligation with respect
to the Security Deposit, and Tenant's right to the Security Deposit shall
apply solely against Landlord's transferee.
(e) Landlord's obligation with respect to the Security Deposit is that of a
debtor, not a trustee. The Security Deposit shall be the property of
Landlord, but shall be paid to Tenant when Tenant's obligations under this
Lease have been completely fulfilled. If Tenant and all assignees of
Tenant's interest hereunder fully perform every provision of this Lease to
be performed by Tenant and return the Premises to Landlord upon the
expiration or earlier termination of this Lease, Landlord shall pay to
Tenant (or, at Landlord's option, to the last assignee of Tenant's interest
hereunder) any balance of the Security Deposit then held by Landlord
(including accrued interest, if any) within 60 days after the expiration or
earlier termination of this Lease.
7. USE. The Premises shall be used solely for the Permitted Use set forth in
the Basic Lease Provisions and for lawful purposes incidental thereto, all 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, within 5 days' after Notice from Landlord, shall
cause to be discontinued any use of the Premises that is declared by any
governmental authority having jurisdiction to be a violation of any Legal
Requirement. Provided that Tenant has prior knowledge of the then current terms
of Landlord's insurance coverage with respect to the Project, (i) 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, and Tenant, within 5
days' after Notice from Landlord, shall cause to be discontinued any such use,
and (ii) Tenant shall reimburse Landlord promptly upon demand for any additional
premium charged for any insurance policy maintained by Landlord as a result of
Tenant's failure to comply with the provisions of this Section. 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 uses
that would damage the Premises or obstruct or interfere with the rights of
Landlord or other guests, invitees, licensees, or other authorized users 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 office equipment or
machinery to be installed in the Premises so as to reasonably prevent sounds or
vibrations therefrom from extending into Common Areas or other space in the
Project. Tenant shall not place any 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, without the
prior written consent of Landlord, shall not use the
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Premises in any manner that will require ventilation, air exchange, heating,
gas, steam, electricity or water beyond the existing capacity of the Project as
proportionately allocated to the Premises and 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. (S) 12101, et seq.
(together with regulations promulgated pursuant thereto, "ADA")) related to
Tenant's use or occupancy of the Premises, provided that the foregoing
obligation shall not apply to the extent any non-compliance with Legal
Requirements is due to a Construction Defect. 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, Legal Fees)
(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, except to the extent, and
only to the extent, a Claim is attributable to a Construction Defect or to the
gross negligence or willful misconduct of Landlord.
8. HOLDING OVER. If, with Landlord's express written consent, Tenant retains
possession of the Premises after the expiration or earlier termination of this
Lease, such possession, unless otherwise agreed in writing, shall be subject to
immediate termination by Landlord at any time, and all of the other terms and
provisions of this Lease (including, without limitation, the adjustment of Rent
pursuant to Section 4 hereof but excluding any expansion or renewal option or
other similar right or option) shall remain in full force and effect during such
holdover period, and in such case Tenant shall continue to pay 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. 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 this Lease without the express
written consent of Landlord, Tenant shall become a tenant at sufferance upon the
terms of this Lease except that the monthly rental shall be equal to 150.00% of
the Rent in effect during the last 30 days prior to the expiration or earlier
termination of this Lease. In addition, Tenant shall be responsible for all
damages suffered by Landlord resulting from or occasioned by Tenant's holding
over. 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 shall not be construed as consent for Tenant to retain possession
of the Premises. Acceptance by Landlord of Rent after the expiration or earlier
termination of this Lease shall not result in a renewal or reinstatement of this
Lease.
9. TAXES. Tenant shall pay 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") in connection with the Project and accruing during the
Term and any Term Extension, 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,
(ii) based on the square footage, assessed value, or other measure or evaluation
of any kind of the Premises or the Project, (iii) assessed or imposed by or on
the operation or maintenance of the Premises or the Project (including parking),
(iv) assessed or imposed by, or at the direction of, or resulting from statutes
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Paradigm Genetics, Inc.--Page 14
or regulations, or interpretations thereof, promulgated by, any Governmental
Authority, (v) assessed or imposed by reason of the subsequent occurrence of
certain specified events (including, but not limited to, the construction of
additional improvements within the Project), or (vi) imposed as a license or
other fee on Landlord's business of leasing space in the Project. Landlord
shall cause all Taxes to be billed directly to Tenant by the Governmental
Authority, and Landlord shall promptly forward to Tenant any bills for Taxes
that Landlord nevertheless may receive. All payments of Taxes shall be made at
least 10 business days prior to delinquency, and Tenant shall promptly furnish
Landlord with satisfactory evidence that all Taxes have been so paid; provided,
however, that Tenant shall not be responsible for evidence of timely payment or
for any penalties, surcharges, or similar charges imposed upon delinquency if
the delinquency is due solely to any failure by Landlord to forward promptly to
Tenant any bills for Taxes that Landlord may receive. If any Taxes cover any
period of time beginning before the Commencement Date or ending after the
expiration or earlier termination of this Lease, Tenant's responsibility for
such Taxes shall be prorated to cover only that portion of such Taxes applicable
to the period that the Lease is in effect, and Landlord shall promptly reimburse
Tenant for any overpayment (provided that all Taxes that become due and payable
while construction is being performed shall still be included in and a part of
Base Construction Costs). Tenant may contest by appropriate legal proceedings
the amount, validity, or application of any Taxes or liens securing Taxes.
Taxes shall not include any of the following (except to the extent any of the
following are in substitution for any Taxes payable hereunder): (x) any net
income taxes that may be imposed on Landlord, or (y) any revenue taxes that may
be imposed on any sale of Landlord's interest in the Project. Tenant also 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 Tenant fails to pay any
Taxes, Landlord shall have the right (but not the obligation) to pay the same,
and any amount actually so paid by Landlord shall be payable to Landlord on
demand as Additional Rent or includable by Landlord as an Operating Expense.
10. PARKING. At no additional cost to Tenant, Tenant shall have a license to
use at least 141 parking spaces at the Site. Such license shall be effective
during the Term and any Term Extension, shall be revocable by Landlord upon the
expiration or earlier termination of this Lease, and shall be limited by and
subject to any changes mandated by Legal Requirements (including zoning
restrictions) that may be enacted or first effective after the Effective Date
and to any changes in the design of the Building requested or approved by Tenant
and made after the Effective Date.
11. UTILITIES; SERVICES. Subject to the terms of this Section, Landlord shall
cause to be provided to the Project and the Premises, water, electricity, gas,
light, power, telephone, sewer, and other utilities (including fire sprinklers)
(collectively, "UTILITIES"). Tenant shall arrange for refuse and trash
collection and janitorial services provided to the Premises. Landlord shall
cause all Utilities to be charged directly to Tenant by the provider. Tenant
shall pay directly to the Utility provider, prior to delinquency, all charges
for Utilities used on the Premises during the Term and any Term Extension, all
maintenance charges for Utilities, and any storm sewer charges or other similar
charges for Utilities imposed by any Governmental Authority or Utility provider,
and any taxes, penalties, surcharges, or similar charges thereon. If Tenant
fails to pay any Utilities in the manner required hereunder, Landlord shall have
the right (but not the obligation) to pay the same, and the amount thereof shall
be payable to Landlord on demand as Additional Rent or includable by Landlord as
an Operating Expense. 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.
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Paradigm Genetics, Inc.--Page 15
12. ALTERATIONS AND TRADE FIXTURES. Any alterations, additions, or
improvements made to the Premises ("ALTERATIONS") 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
below) shall be subject to Landlord's prior written consent, which consent (i)
will not be unreasonably withheld or delayed with respect to non-structural
Alterations to the interior of the Premises that do not involve any Building
Systems or puncturing, relocating, or removing the roof or any existing load-
bearing walls ("NON-STRUCTURAL ALTERATIONS"), and (ii) may be withheld, in
Landlord's sole and absolute discretion, with respect to all other Alterations.
Notwithstanding the foregoing, Landlord's prior consent will not be required
with respect to Non-Structural Alterations if the cost of each such Non-
Structural Alteration does not exceed $5,000.00 ("PERMITTED NON-STRUCTURAL
ALTERATIONS"), the aggregate cost of all such Permitted Non-Structural
Alterations does not exceed $25,000.00 in any consecutive 12 month period, and
Tenant provides Landlord with Notice of each such Permitted Non-Structural
Alteration, accompanied by any plans, specifications, bid proposals, work
contracts, or other information concerning the nature and cost of each such
Permitted Non-Structural Alteration that Tenant may have in its possession or
control, including the identities and mailing addresses of all persons
performing work or supplying materials (collectively, "ALTERATIONS
INFORMATION"). 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
reasonable discretion, with respect to Non-Structural Alterations, and in
Landlord's sole and absolute discretion, with respect to all other Alterations).
Any request for approval shall be in writing, delivered not less than 15
business days in advance of any proposed construction, and accompanied by such
Alterations Information as may be reasonably requested by Landlord. 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 see that such
plans and specifications or construction comply with applicable Legal
Requirements. Tenant, at its sole cost and expense, shall cause all Alterations
to comply with insurance requirements known to Tenant and Legal Requirements and
shall implement any alteration or modification required by Legal Requirements as
a result of any Alterations. Except as to Permitted Non-Structural Alterations,
Tenant shall pay to Landlord, on demand as Additional Rent, an amount equal to
5.00% of all charges incurred by Tenant or its contractors or agents in
connection with any Alterations to cover Landlord's overhead and expenses for
plan review, coordination, scheduling, and supervision. Tenant will give
Landlord Notice at least 5 days (or any longer period that may be required under
the Ground Lease) before beginning any Alterations so that Landlord may post on
and about the Premises notices of non-responsibility pursuant to applicable law.
Tenant, at its sole cost and expense, shall correct any faulty work or
inadequate cleanup done by Tenant or its contractors within 5 business days
after Notice of the same from Landlord. Tenant shall reimburse Landlord for, and
indemnify and hold Landlord harmless from, any reasonable and necessary expenses
incurred by Landlord by reason of such faulty work or inadequate cleanup or by
reason of delays caused by the same.
Tenant shall furnish security or make other arrangements satisfactory to
Landlord to assure payment for the completion of all work free and clear of
"LIENS" (as defined in Section 15 below), 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 (copies of such
certificates will suffice, so long as the original certificates are forwarded to
Landlord within 2 business days thereafter). Upon completion of any
Alterations, Tenant shall deliver to Landlord: (i) sworn
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Paradigm Genetics, Inc.--Page 16
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 the items, if any, listed on Exhibit I and any items agreed by
Landlord in writing to be included on Exhibit I in the future ("TENANT'S
PROPERTY"), all Alterations, all "TENANT IMPROVEMENTS" (as defined in the Work
Letter), and all other equipment, fixtures, trade fixtures, machinery, built-in
furniture and cabinets, and other additions and improvements attached to or
built into the Premises, including, without limitation, fume hoods that
penetrate the roof or plenum area, built-in cold rooms, built-in warm rooms,
walk-in cold rooms, walk-in warm rooms, deionized water systems, glass washing
equipment, autoclaves, chillers, built-in plumbing, electrical and mechanical
equipment and systems, and any power generator and transfer switch
(collectively, "INSTALLATIONS"), shall be and shall remain the property of
Landlord during the Term and any Term Extension and following the expiration or
earlier termination of this Lease, shall not be removed by Tenant at any time
during the Term or any Term Extension, and shall remain upon and be surrendered
with the Premises as a part thereof following the expiration or earlier
termination of this Lease; provided, however, that Landlord, at the time its
approval of any Installation is requested, may elect 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. During any such restoration period, Tenant shall
pay Rent to Landlord as provided herein as if Tenant otherwise occupied said
space. Landlord and Tenant hereby acknowledge and agree that the list of
Tenant's Property attached hereto as Exhibit I is intentionally over-inclusive
and includes items that will be used, located, placed, and/or stored in the
Greenhouse. Tenant shall be solely responsible for keeping records regarding
the actual location of each particular item of Tenant's Property. For purposes
of this Lease, if, at any time, any particular item of Tenant's Property is not
within the Premises, such item shall be presumed to be within the Greenhouse.
13. TENANT'S REPAIRS. During the Term and any Term Extension, Tenant shall
keep all components of the Premises and the Project in good order, condition,
and repair (to the extent the need for such repairs occurs as a result of
Tenant's use of the portion of the Premises or Project requiring repairs),
reasonable wear and tear and Construction Defects excluded, including, but not
limited to, all equipment or facilities, such as plumbing, heating, ventilation,
and air-conditioning ("HVAC"), electrical and lighting facilities, boilers,
pressure vessels, fire protection systems, fixtures, exterior and interior
walls, foundations, ceilings, roofs, floors, windows, doors, plate glass,
landscaping and irrigation systems, driveways and parking areas, fences,
retaining walls, signs, and sidewalks ("BUILDING SYSTEMS"). Tenant's
obligations shall include restorations, replacements, or renewals when
necessary. During the Term and any Term Extension, Tenant also shall keep the
exterior appearance of the Building in a condition consistent with the exterior
appearance of other substantially similar facilities of comparable age and size
("SIMILAR FACILITIES") located within the area commonly known as the "I-40/RTP
sub-market' (the "SUB-MARKET"), including, when necessary, the exterior sealing,
resealing, or repainting of the Building. Tenant, in keeping the Premises and
the Project in good order, condition, and repair, shall exercise and perform
good maintenance practices, specifically including the procurement and
maintenance of service contracts, with copies to Landlord, in customary form and
substance for, and with contractors specializing and experienced in the
maintenance of, the following Building Systems (the "SERVICE CONTRACTS"): (i)
HVAC, (ii) boilers and pressure vessels, (iii) fire protection systems, (iv)
landscaping and irrigation systems, (v) roof covering and drains, (vi) driveways
and parking areas, (vii) basic Utilities feeds to the perimeter of the Building,
and (viii) any other Building Systems reasonably required by Landlord.
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Paradigm Genetics, Inc.--Page 17
Tenant's obligations under this Section shall be at Tenant's sole cost and
expense. If Tenant fails to repair or maintain any portion of the Premises or
the Project as required under this Section within 15 days after Landlord gives
Tenant written demand to so repair or maintain, Landlord may perform such work
and the reasonable and necessary cost thereof shall be payable to Landlord on
demand as Additional Rent or includable by Landlord as an Operating Expense.
Notwithstanding the foregoing, if any "MAJOR REPAIR" (as hereinafter
defined) is required, Landlord shall be responsible for completing a
"RESTORATION" (as hereinafter defined). As used herein, the term "MAJOR REPAIR"
shall mean the following: (a) during the final 12 months of the Term or any Term
Extension (provided that Tenant has elected not to exercise any then available
Extension Right or no Extension Right is then available) (the "FINAL 12
MONTHS"), any repair to any Building System other than a "TENANT SPECIFIC
BUILDING SYSTEM" (as hereinafter defined) that will cost more than 60.00% of the
cost of replacing such Building System; and (b) at all other times, any repair
to any Building System that will cost more than 50.00% of the cost of replacing
such Building System. As used herein, the term "TENANT SPECIFIC BUILDING
SYSTEM" shall mean any Building System that is necessary only because of
Tenant's specific use of the Premises or the conduct of Tenant's specific
business operations on the Premises. As used herein, the term "RESTORATION"
shall mean the following: (x) during the Final 12 Months, repairing or replacing
the Building System in question, at Landlord's sole option; and (y) at all other
times, replacing the Building System in question. The cost of any Restoration
shall be includable by Landlord as an Operating Expense, provided that the cost
of any Restoration that involves replacing the Building System in question shall
be deemed a capital improvement and amortized over the useful life of the
improvement (not to exceed 7 years). Under all circumstances, Landlord shall
have no obligation with respect to any Building System to the extent any repair
of such Building System becomes necessary because of Tenant's failure to
exercise and perform adequate maintenance as required hereunder.
Notwithstanding the foregoing, substantial repairs to the Premises or the
Project required as the result of fire, earthquake, flood, vandalism, war, or
similar cause of damage or destruction shall be controlled by Section 18.
14. LANDLORD'S REPAIRS. It is intended by Landlord and Tenant that Landlord
shall have no obligation, in any manner whatsoever, to repair or maintain the
Premises or the Project (including, without limitation, the Building Systems),
except to the extent, and only to the extent, of any repairs that are necessary
solely because of Construction Defects, Landlord's gross negligence or willful
misconduct, the elements, or the age of the Premises or the Project. It is also
intended by Landlord and Tenant that the terms of this Lease shall govern their
respective obligations regarding repair and maintenance of the Premises and the
Project, and Tenant expressly waives the benefit of any state or local law now
or hereafter in effect to the extent any such law is inconsistent with the terms
of this Lease. Notwithstanding the foregoing, Landlord shall not be in default
in its obligations under this Section if:
(a) with respect to Construction Defects that Landlord reasonably determines,
in good faith, involve or may involve structural components of the Premises
or pose or may pose a significant risk of personal injury or substantial
property damage ("SERIOUS CONSTRUCTION DEFECTS"), the applicable
contractor, despite Landlord's reasonable efforts, fails to remedy such
Construction Defect within 30 days after Tenant gives Landlord Notice of
such Construction Defect, but Landlord, within 30 days thereafter,
commences and diligently and continuously prosecutes such remedial action
to completion, at Landlord's sole cost and expense;
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Paradigm Genetics, Inc.--Page 18
(b) with respect to Construction Defects that Landlord reasonably determines,
in good faith, are not Serious Construction Defects or involve Tenant's
Property, the applicable contractor, despite Landlord's reasonable efforts,
fails to remedy such Construction Defect within 30 days after Tenant gives
Landlord Notice of such Construction Defect, in which case Landlord shall
have no further obligation with respect to such Construction Defect other
than to cooperate, at no cost to Landlord, with Tenant should Tenant elect
to pursue a claim against such contractor, provided that Tenant indemnifies
and holds Landlord harmless from and against any liability, loss, cost,
damage, or expense that may arise because Tenant's claim is denied or is
determined to be baseless, erroneous, faulty, groundless, improper,
inappropriate, unfounded, or otherwise unjustified or unwarranted; or
(c) with respect to any part of the Premises or the Project, any action by
Tenant has directly resulted in the invalidation of any otherwise
enforceable warranty or bond that would cover the cost of remedying such
Construction Defect.
Any determination made by Landlord pursuant to paragraph (a) or (b) above shall
be deemed reasonable and in good faith if based on advice received by Landlord
from an independent and duly licensed design or construction consultant (a
"DEFECT CONSULTANT"). Tenant may ask a Defect Consultant to provide written
confirmation of the advice given Landlord in connection with a determination by
Landlord that a specific Construction Defect is not a Serious Construction
Defect if, and only if, (i) Tenant gives Landlord Notice of such desire within 3
business days after receiving Notice of Landlord's determination, and (ii)
Tenant is solely responsible for any fee, cost, charge, or other assessment
imposed by the Defect Consultant for providing such written confirmation;
provided, however, that Tenant understands and agrees that Landlord's waiver of
the potential conflict of interest facing the Defect Consultant shall be
strictly limited to the advice, and only the advice, given Landlord in the
specific instance in question and shall not apply, under any circumstances, to
any other advice or matters that may be the subject of the services provided to
Landlord by the Defect Consultant.
15. LIENS. Tenant, at Tenant's sole cost and expense, shall pay for all work
performed for, materials furnished to, or obligations incurred by Tenant in
connection with the Premises or the Project, and shall keep the Premises and the
Project free from, and shall discharge, by bond or otherwise, any mechanic's or
materialmen's lien or claim of lien filed against the Premises or the Project
for work claimed to have been done for, materials claimed to have been furnished
to, or obligations claimed to have been incurred by, Tenant in connection with
the Premises or the Project (generally, "LIENS"). Tenant shall discharge any
such Lien within 10 days after Tenant receives notice of such Lien. With
respect to any Alterations for which the estimated cost exceeds $15,000.00,
Landlord may require Tenant, at Tenant's sole cost and expense, to provide a
lien and completion bond in an amount equal to 150.00% of such estimated cost,
insuring Landlord against any liability for any Liens that may arise from such
Alterations. Should Tenant fail to discharge any Lien in the manner and at the
time provided 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 used by Tenant in the operation of Tenant's
business, Tenant warrants that any Uniform Commercial Code Financing Statement
executed by Tenant will on 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 qualifying language as to applicability of
the lien only to removable personal property, located in an identified suite
held by Tenant.
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Paradigm Genetics, Inc.--Page 19
16. INDEMNIFICATION.
(a) 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 or the
Project, arising directly or indirectly out of Tenant's use or occupancy of
the Premises or the Project or a breach or default by Tenant in the
performance of any of its obligations hereunder, except to the extent
caused by the gross negligence or willful misconduct of Landlord.
(b) Landlord hereby indemnifies and agrees to defend, save, and hold Tenant
harmless from and against any and all Claims for injury or death to persons
or damage to property occurring within or about the Premises or the
Project, to the extent, and only to the extent, caused by the gross
negligence or willful misconduct of Landlord. Under no circumstances,
however, shall Landlord 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). Further, Tenant 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). Finally, Landlord shall not be liable
for any damages arising from any act, omission, or neglect of any guests,
invitees, licensees, and other authorized users of 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, as the same shall exist from time to time,
or the amount required by Ground Lessor or any lender of Landlord holding a
security interest in Landlord's interest in the Project, but in no event more
than the commercially reasonable and available insurable value thereof.
Landlord also may maintain, but is not obligated to maintain, such other
insurance and additional coverages as Landlord may deem necessary, including,
but not limited to, comprehensive public liability, flood, environmental hazard,
earthquake, loss or failure of building equipment, and rental loss during
periods of repair or rebuilding. 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
hereby acknowledges that Tenant has been provided with a written summary of the
insurance coverage that Landlord will be maintaining with respect to the Project
as of the Commencement Date; Landlord will be responsible for notifying Tenant
of any material changes in such insurance coverage made after the Commencement
Date.
Tenant, at its sole expense, shall maintain during the Term and any Term
Extension: all risk property insurance covering the full replacement cost of all
property and improvements installed or placed in the Premises by Tenant;
worker's compensation insurance with no less than the minimum limits required by
law; employees liability insurance with such limits as required by law; and
comprehensive public 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. Landlord may from
time to time require reasonable increases in any such limits. The comprehensive
public liability insurance policies shall name Landlord, its officers,
directors, employees, managers, agents, invitees and contractors (collectively,
"RELATED PARTIES"), as additional insureds; insure on an occurrence and not a
claims-made basis; be issued by insurance companies that 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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Paradigm Genetics, Inc.--Page 20
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 (upon renewal, copies of such policies or
certificates will suffice, so long as the original policies or certificates are
forwarded to Landlord within 2 business days thereafter). 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 maintain such
insurance, Landlord shall have the right (but not the obligation) to procure
said insurance on Tenant's behalf.
In each instance where insurance is to name Landlord as an additional
insured, Tenant, upon Landlord's written request, shall furnish certificates so
evidencing Landlord as additional insured to: (i) Ground Lessor, (ii) any lender
of Landlord holding a security interest in any portion of the Project, and/or
(iii) any management company retained by Landlord to manage the Project.
Further, Tenant agrees that Landlord may require insurance policy limits to be
raised to conform to the requirements of Ground Lessor and/or Landlord's lender.
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 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 others insurer.
The cost of any insurance procured and/or maintained by Landlord pursuant
to this Section shall be included as an Operating Expense.
Notwithstanding any provision of this Section, Landlord shall insure, and
shall bear all risk of loss with respect to, the Premises and the Project at all
times prior to the Commencement Date, with the exception of any acts or
omissions by Tenant or its agents or contractors.
18. RESTORATION. If at any time during the Term or any Term Extension the
Project or the Premises are damaged by a fire or other insured casualty,
Landlord shall notify Tenant within 45 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. If the restoration time is estimated to
exceed 6 months, either party, by giving Notice to the other party, may elect to
terminate this Lease as of the date that is 75 days after the date of discovery
of such damage. Unless either party elects to terminate this Lease, Landlord,
subject to receipt of sufficient insurance proceeds, shall promptly restore the
Premises (excluding any Alterations installed by
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Paradigm Genetics, Inc.--Page 21
Tenant and any other improvements installed by Landlord and paid for by Tenant
after Substantial Completion of the original Premises), 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, release or removal of
Hazardous Materials in, on, or about the Premises (collectively referred to
herein as "HAZARDOUS MATERIALS CLEARANCES"); provided, however, that if such
repair or restoration of the Premises is not Substantially Complete within 9
months after the date of discovery of the damage (to be extended by 1 day for
each day that the restoration time is estimated to exceed 6 months, provided
that neither party elected to terminate this Lease based on such estimate),
either party, by giving Notice to the other party, may elect not to proceed with
such repair and restoration, in which event Landlord shall be relieved of its
obligations to make such repairs or restoration and this Lease shall terminate
effective as of the date of such election.
Tenant, at its expense, shall promptly perform, subject to delays arising
from the collection of insurance proceeds, from Force Majeure events or to
obtain Hazardous Material Clearances, all repairs or restoration not required to
be done by Landlord and, as soon as reasonably practicable, shall 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 18 months of the Term or of any Term Extension and
Landlord reasonably estimates that it will take more than 60 days 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 that
the area of the Premises that is not usable by Tenant, if any, bears to the
total area of the Premises, unless Landlord provides Tenant with other space
during the period of repair that is suitable, in Tenant's reasonable discretion,
for the temporary conduct of Tenant's business. Such abatement shall be
Tenant's sole and exclusive remedy at law, in equity, or otherwise, 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, 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 that 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 this Section sets forth their entire understanding and
agreement with respect to such matters.
19. CONDEMNATION. If any part of the Premises or the Project is taken for any
public or quasi-public use under any 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 Tenant's judgment, prevent or
materially interfere with Tenant's use of the Premises for the Permitted Use or,
in Landlord's judgment, materially interfere with or impair Landlord's ownership
or operation of the Project, then upon Notice by either party to the other party
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 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 Rent payable hereunder during the unexpired
portion of the Term or any Term Extension 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
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Paradigm Genetics, Inc.--Page 22
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; provided, however, that Landlord will
give Tenant Notice and an opportunity to cure any failure to pay Rent
within 3 days of any such Notice not more than once in any 12 month period
and Tenant agrees that such Notice shall be in lieu of and not in addition
to any notice required by law.
(b) INSURANCE. (i) 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 (ii) 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 satisfy its obligations under Section 15.
(f) INSOLVENCY EVENTS. Tenant or any guarantor or surety of Tenant's
obligations hereunder shall: (i) make a general assignment for the benefit
of creditors; (ii) 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 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"); (iii) become the subject of any
Proceeding for Relief that is not dismissed within 90 days of its filing or
entry; or (iv) die or suffer a legal disability (if Tenant, guarantor, or
surety is an individual) or be dissolved or otherwise fail to 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, 27, or 38 within 10
days after a second Notice requesting such document.
(h) GREENHOUSE LEASE. Tenant is in breach of, in default under, or otherwise
has failed to comply with the agreements, terms, covenants and conditions
to be
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Paradigm Genetics, Inc.--Page 23
performed by Tenant in connection with the Greenhouse Lease, after any
applicable notice and cure periods.
(i) [INTENTIONALLY OMITTED]
(j) OTHER DEFAULTS. Tenant shall fail to comply with any provision of this
Lease other than those specifically referred to in this Section, and except
as otherwise expressly provided herein, such failure shall continue for a
period of 30 days after Notice thereof from Landlord to Tenant.
Any Notice given under Section 20(g) or (j) 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 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, however, that if the nature of Tenant's default is such that it cannot
be cured by the payment of money and reasonably requires more than 30 days to
cure, then Tenant shall not be deemed to be in default if Tenant commences such
cure within said 30-day period and thereafter diligently prosecutes the same to
completion; provided further, however, that such cure shall be completed no
later than 60 days from the date of Landlord's Notice.
21. LANDLORD'S REMEDIES.
(a) PAYMENT BY LANDLORD; INTEREST. Upon a Default by Tenant hereunder,
Landlord, without waiving or releasing any obligation of Tenant hereunder,
may 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 12.00% per annum or the highest
rate permitted by law, whichever is less (the "DEFAULT RATE"), 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 under this Lease 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 that may be
imposed on Landlord under any "MORTGAGE" (as defined in Section 27 below)
covering the Premises. Therefore, if Landlord does not receive any
installment of Rent due from Tenant within 5 days after the date such
payment is due, Tenant shall pay to Landlord an additional sum of 6.00% of
the overdue Rent as a late charge. 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. Provided there is no other Default by
Tenant hereunder, the foregoing late charge and interest at the Default
Rate will not be payable until the 2nd late payment of Rent in any 12 month
period. Tenant agrees that the foregoing late charge and interest at the
Default Rate represent a fair and reasonable estimate of the costs Landlord
will incur by reason of late payment by Tenant. Tenant also acknowledges
that Landlord is entitled to use reasonable methods to deter delinquent
payments by Tenant and agrees that, under the circumstances in existence as
of the date of this Lease, the foregoing late charge and interest at the
Default Rate are reasonable, as evidenced by the fact that, among other
things, (i) Landlord and Tenant have comparatively equal bargaining power,
(ii) this Lease is not a pre-printed form document, and (iii) Tenant's
principals are well experienced in leasing properties, were represented by
counsel in the
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negotiation and documentation of this Lease, and bargained at arms
length and without duress for all of the terms and conditions of this
Lease, including this provision.
(c) REMEDIES. Upon the occurrence of a Default, Landlord, at its option,
without further Notice to or demand on Tenant, shall have the option, in
addition to all other rights and remedies provided in this Lease, at law or
in equity, 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, in accordance with
applicable law and without prejudice to any other remedy that 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 that
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 or Term Extension (as the case may be) 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 and the 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 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 1.00%.
(iii) Landlord may continue this Lease in effect after Tenant's Default and
recover rent as it becomes due. Accordingly, if Landlord does not elect
to terminate this
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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 and absolute 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.
(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 and
absolute discretion may determine. Landlord shall not be liable, 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.
(a) GENERAL PROHIBITION. Without Landlord's prior written consent, 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. For purposes of this Section, a transfer
of ownership interests controlling Tenant shall be deemed an assignment of
this Lease unless such ownership interests are publicly traded.
(b) PERMITTED TRANSFERS. If Tenant desires to assign, sublease, hypothecate or
otherwise transfer this Lease or sublet the Premises (generally, a
"TRANSFER"), then at least 15 business days, but not more than 30 business
days, before the date Tenant desires the Transfer to be effective (the
"ASSIGNMENT DATE"), Tenant shall give Landlord a Notice (the "ASSIGNMENT
NOTICE") containing such information about the proposed transferee,
including the
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proposed use of the Premises and any Hazardous Materials proposed to be
used or stored in the Premises, the Assignment Date, any relationship
between Tenant and the proposed transferee, and all material terms and
conditions of the proposed Transfer, and such other information as Landlord
may deem reasonably necessary or appropriate to its consideration whether
to grant its consent. Landlord may, by giving Notice to Tenant within 15
business days after receipt of the Assignment Notice: (i) grant or refuse
such consent, in its sole and absolute discretion, with respect to any
Transfer other than a straightforward sublease of not more than 5,000
square feet of the Premises (a "MINOR SUBLEASE"), or grant or refuse such
consent, in its reasonable discretion, with respect to such a Minor
Sublease, 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 its Assignment Notice by 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 Transfer. Tenant shall reimburse
Landlord for all reasonable out-of-pocket expenses, up to a maximum of
$1,000.00, incurred by Landlord in connection with its consideration of any
Assignment Notice.
(c) ADDITIONAL CONDITIONS. As a condition to any such Transfer, Landlord may
require:
(i) that any transferee agree, in writing at the time of such Transfer, that if
Landlord gives such third party notice that Tenant is in default under this
Lease, such third 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
this Lease, and any such third party shall agree to attorn 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 attornment; and
(ii) A list of Hazardous Materials, certified by the proposed transferee to be
true and correct, which the proposed transferee intends to use or store in
the Premises together with the "DOCUMENTS" (as defined in Section 30(b)
below) with respect to such proposed transferee.
(d) NO RELEASE OF TENANT. Notwithstanding any Transfer, 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 transferee (or a combination of
the rental payable under such Transfer plus any bonus or other
consideration therefor or incident thereto) exceeds the rental payable
under this Lease, then Tenant shall be bound and obligated to pay Landlord
as Additional Rent hereunder all 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, or a receiver for Tenant appointed on Landlord's
application, may collect such rent and apply it toward Tenant's obligations
under this Lease; except that, until the occurrence of a Default, Tenant
shall have the right to collect such rent.
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(e) NO WAIVER. The consent by Landlord to a Transfer shall not relieve Tenant
or any transferee from obtaining the consent of Landlord to any further
Transfer nor shall it release Tenant or any transferee 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 Transfer.
23. ESTOPPEL CERTIFICATE. Tenant shall within 15 business days of Notice from
Landlord, execute, acknowledge and deliver a statement in writing substantially
in the form attached to this Lease as Exhibit J with the blanks filled in, and
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, to Tenant's knowledge, 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 reasonably 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. If Tenant shall perform all of the covenants and
agreements herein required to be performed by Tenant, Tenant shall, at all times
during the Term and any Term Extension, have peaceful and quiet enjoyment of the
Premises and the Project 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
Term Extension, comply with all reasonable rules and regulations at any time or
from time to time established by Landlord covering the use of the Premises and
the Project and delivered to Tenant at least 30 days prior to their effective
date. The current rules and regulations are attached hereto as Exhibit H. 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 obligation to enforce any rules or regulations against, and
shall have no liability for the breach of any rules or regulations by, other
tenants in the Project. If Landlord chooses to enforce any rules or regulations
against other tenants in the Project, Landlord shall do so in a non-
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 first
mortgage, now existing or hereafter created on or against the Project or the
Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancings, assignments and extensions thereof (collectively,
a "MORTGAGE"), 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 receipt of a fully executed instrument containing
appropriate non-disturbance provisions assuring Tenant's quiet enjoyment of the
Premises as set forth in Section 24 hereof shall be a condition precedent
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Paradigm Genetics, Inc.--Page 28
to the subordination of Tenant's interest and rights hereunder and Tenant's
right to possession of the Premises shall not be disturbed by the holder of any
such Mortgage (a "HOLDER"). Tenant agrees, at the election of any Holder, to
attorn to any such Holder. Tenant agrees, upon demand, to execute, acknowledge
and deliver a Subordination, Non-Disturbance and Attornment Agreement
substantially in the form attached hereto as Exhibit K (the "LOAN SUBORDINATION
AGREEMENT") or such other instruments, confirming such subordination and such
instruments of attornment as shall be reasonably requested by any Holder,
provided any such instruments contain the appropriate non-disturbance provisions
described above. Notwithstanding the foregoing, any Holder may at any time
subordinate its Mortgage to this Lease, without Tenant's consent, by written
notice 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.
Landlord shall use commercially reasonable efforts to obtain an express
agreement from the Holder of any Mortgage that the lien of such Mortgage does
not apply or attach to any property that, by operation of the terms of this
Lease, is deemed to be Tenant's separate property, whether or not such property
is, has been, or will become affixed to the Premises. The term "MORTGAGE"
whenever used in this Lease shall be deemed to include deeds of trust, security
assignments and any other encumbrances given for value, and any reference to the
"HOLDER" of a mortgage shall be deemed to include the beneficiary under a deed
of trust.
28. SURRENDER. Upon expiration or earlier termination of Tenant's right of
possession, Tenant may, subject to the exercise of any remedies by Landlord,
remove Tenant's Property and shall surrender the Premises to Landlord in
substantially the same condition as received, broom clean, ordinary wear and
tear, approved Alterations, and casualty loss and condemnation covered by
Sections 18 and 19 excepted, and shall return to Landlord all keys to offices
and restrooms furnished to, or otherwise procured by, Tenant. If any such key
is lost, Tenant shall pay to Landlord, at Landlord's election, either the cost
of replacing such lost key or the cost of changing the lock or locks opened by
such lost key. Any Trade Fixtures, 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 either party
that have arisen and/or become binding hereunder but have not been fully
satisfied as of the expiration or earlier termination of this Lease shall
survive such expiration or earlier termination, including without limitation,
indemnity obligations, payment obligations (including Rent), obligations
concerning the condition and repair of the Premises, and the obligation to
obtain all required Hazardous Materials Clearances. Without limiting the
generality of the foregoing, the following provisions shall survive the
expiration or earlier termination of this Lease: (a) the indemnity obligations
contained in Sections 7, 12, 14(b), 16(a), 16(b), 30(a), 30(d), 35, and 38(b);
(b) the payment obligations contained in Sections 3, 5, 6, 8, 9, 11, 15, 21(a),
21(b), and 22(d); (c) the maintenance, repair, and/or restoration obligations
contained in Sections 12, 13, and 18; (d) the obligation to obtain Hazardous
Materials Clearances contained in Section 18; and (e) the agreements contained
in Sections 29, 36, and 44.
29. WAIVER OF JURY TRIAL. TENANT AND LANDLORD EACH AGREE NOT TO ELECT A TRIAL
BY JURY, AND WAIVE ANY RIGHT TO A 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
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Paradigm Genetics, Inc.--Page 29
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO. THIS WAIVER
IS GIVEN KNOWINGLY AND VOLUNTARILY, AND IS INTENDED TO ENCOMPASS EACH INSTANCE
AND EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY OTHERWISE WOULD ACCRUE.
TENANT AND LANDLORD EACH AGREE THAT THIS PROVISION CONSTITUTES A WRITTEN CONSENT
TO WAIVER OF TRIAL BY JURY, AND EACH PARTY AUTHORIZES THE OTHER PARTY TO FILE A
COPY OF THIS PROVISION, IN ANY PROCEEDING, AS CONCLUSIVE EVIDENCE OF THIS
CONSENT TO WAIVER.
30. ENVIRONMENTAL REQUIREMENTS.
(a) PROHIBITION/COMPLIANCE. Landlord has provided Tenant with copies of all
environmental tests, reports, inspections, surveys, samples, studies, and
other analyses of the Site and the Additional Site that are in Landlord's
possession or control or that Landlord, through the exercise of
commercially reasonable efforts, has been able to obtain from various
Governmental Authorities having jurisdiction over "HAZARDOUS MATERIALS" (as
hereinafter defined) that may be present at the Site or the Additional Site
(collectively, the "ENVIRONMENTAL INFORMATION") A list of the documents
containing the Environmental Information is attached hereto as Exhibit M.
Landlord shall not be responsible, and Tenant hereby waives any right to
assert any claim against Landlord, for any Pre-Existing Contamination. In
addition to the forgoing, Tenant shall not cause or permit any Hazardous
Materials to be brought upon, kept, or used in or about the Premises, the
Project, or the Site in violation of applicable law. If Tenant breaches
the obligation stated in the preceding sentence, if the presence of
Hazardous Materials permitted by Tenant results in contamination of the
Premises, the Project, the Site, or any adjacent property (including the
Additional Site), or if any contamination of the Premises, Project, Site,
or any adjacent property (including the Additional Site) that is not
expressly identified in the Environmental Information ("PREVIOUSLY UNKNOWN
CONTAMINATION") is discovered during the Term or any Term Extension or
renewal hereof or holding over hereunder and Tenant cannot demonstrate that
such Previously Unknown Contamination was present at the Site before the
Effective Date or is attributable solely to the actions or omissions of a
person or entity other than Tenant, Tenant shall indemnify, defend, and
hold Landlord, its officers, directors, employees, agents and contractors
harmless from any and all claims, judgments, damages, penalties, fines,
costs, liabilities, or losses (including, without limitation, diminution in
value of the Premises or any portion of the Project, damages for the loss
or restriction on use of rentable or usable space or of any amenity of the
Premises or the Project, damages arising from any adverse impact on
marketing of space in the Premises or the Project, increase in the cost of
designing, constructing, or permitting any additional improvements within
the Project, and sums paid in settlement of claims and Legal Fees) that
arise before or after the expiration or earlier termination of this Lease
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, remedial, removal, or
restoration work required by any Governmental Authority because of
Hazardous Materials present in the air, soil, or ground water above, on, or
under the Premises, the Project, the Site, or any adjacent property
(including the Additional Site). Without limiting the foregoing, if the
presence of any Hazardous Materials within the Premises, the Project, the
Site, or any adjacent property (including the Additional Site) caused or
permitted by Tenant results in any contamination of the Premises, the
Project, the Site, or any adjacent property (including the Additional
Site), Tenant shall promptly take all actions at its sole expense as are
necessary to return the Premises, the Project, the Site, or any adjacent
property (including the Additional Site) to the condition existing prior to
the time of such contamination, provided that Landlord's approval of such
action shall first be obtained, which
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Paradigm Genetics, Inc.--Page 30
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, the Project, or the Site.
(b) BUSINESS. Landlord acknowledges that it is not the intent of this Section
to prohibit Tenant from operating its business as described in Section 7
above. Tenant may operate its business according to the custom of the
industry so long as the use or presence of Hazardous Materials is strictly
and properly monitored according to all applicable governmental
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 present on the Premises, the Project, or
the Site and setting forth any and all governmental approvals or permits
required in connection with the presence of such Hazardous Materials on the
Premises, the Project, or the Site ("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
Materials are brought onto the Premises, the Project, or the Site. Tenant
shall deliver to Landlord true and correct copies of the following
documents (the "DOCUMENTS") relating to the handling, storage, disposal,
and emission 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 laws; plans
relating to the installation of any storage tanks to be installed in or
under the Premises, the Project, or the Site (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); and all closure plans or any other documents required
by any and all Governmental Authorities for any storage tanks installed in,
on, or under the Premises, the Project, or the Site for the closure of any
such tanks. Tenant is not required, however, to provide Landlord with any
portion(s) of the Documents containing information of a proprietary nature
that, in and of themselves, do not contain a reference to any Hazardous
Materials or hazardous activities, it being understood and agreed that it
is not the intent of this Section to provide Landlord with information that
could be detrimental to Tenant's business should such information become
possessed by Tenant's competitors. Accordingly, Landlord, except as may be
provided otherwise herein or required by law, shall (i) keep confidential
the information contained in the Documents, and (ii) disclose such
information only to Landlord's officers, directors, employees, or
consultants with a need to know in connection with Landlord's management of
the Project, provided that Landlord shall inform all non-affiliated
recipients of such information of the confidentiality requirement and (to
the extent within Landlord's control) cause such confidence to be
maintained; provided, however, that disclosure of such information by
Landlord shall not be prohibited if that disclosure is of information that
is a matter of public record or public knowledge or was obtained by
Landlord from sources other than Tenant. Tenant agrees that it shall, at
its own expense, and upon the written request of Landlord, establish and
maintain a separate area of the Premises classified under the North
Carolina State Building Code (as adopted by the City of Durham) as an "H"
occupancy area (i.e., the classification denoting a hazardous materials
occupancy area) for the use and storage of Hazardous Materials.
(c) TERMINATION OF LEASE. Notwithstanding the provisions of Section 30(a)
above, if (i) Tenant or any proposed transferee 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 if
the contamination resulted from such party's action or use of the property
in question, or (ii) Tenant or any proposed transferee of Tenant is
adjudicated guilty or responsible under an enforcement order issued by any
Governmental Authority in connection with the use, disposal, or storage of
a Hazardous Materials, Landlord
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Paradigm Genetics, Inc.--Page 31
shall have the right to terminate this Lease in Landlord's sole and
absolute discretion (with respect to any such matter involving Tenant) and
it shall not be unreasonable for Landlord to withhold its consent to any
proposed Transfer (with respect to any such matter involving a proposed
transferee).
(d) TESTING. Landlord shall have the right to conduct annual tests of the
Premises (each, an "ANNUAL TEST" and collectively, "ANNUAL TESTS") to
determine whether any contamination has occurred as a result of Tenant's
use. Tenant shall be required to pay up to $2,000.00 of the cost of each
such Annual Test; provided, however, 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 this Lease, Landlord shall have the right to conduct
additional appropriate tests of the Premises, the Project, and the Site to
determine whether contamination has occurred as a result of Tenant's use of
the Premises, the Project, or the Site. If contamination has occurred for
which Tenant is liable under this Section, 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 reports and tests of the
Premises made by or on behalf of Landlord. Tenant shall be solely
responsible for and shall defend, indemnify, and hold Landlord and its
agents and contractors harmless from and against any and all claims, costs
and liabilities (including actual Legal Fees) arising out of or in
connection with any removal, clean up, restoration and materials required
hereunder to return the Premises, the Project, the Site, and any other
property of whatever nature to their condition existing prior to the time
of any such contamination. Landlord's receipt of or satisfaction with any
environmental assessment in no way waives any rights that Landlord holds
against Tenant.
(e) UNDERGROUND TANKS. If underground or other storage tanks storing Hazardous
Materials are located on the Premises, the Project, or the Site or are
hereafter placed on the Premises, the Project, or the Site by any party at
Tenant's request, Tenant shall monitor the storage tanks, maintain
appropriate records, implement reporting procedures, properly close any
underground storage tanks, and take or cause to be taken all other steps
necessary or required under applicable state and federal law, as such now
exists or may hereafter be adopted or amended.
(f) TENANT'S OBLIGATIONS. Each party's obligations under this Section 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 and the release and termination of any licenses or
permits restricting the use of the Premises, Tenant shall continue to pay
the full Rent in accordance with this Lease, which Rent shall be prorated
daily.
(g) DEFINITION OF "HAZARDOUS MATERIALS". As used herein, the term "HAZARDOUS
MATERIALS" means any hazardous or toxic substance, material or waste that
is or becomes regulated by any Governmental Authority and includes, without
limitation, any material or substance that is (i) petroleum, (ii) asbestos,
(iii) designated as a "hazardous substance" pursuant to Section 311 of the
Federal Water Pollution Control Act (33 U.S.C. Section 1317), (iv) defined
as a "hazardous waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq. (42 U.S.C.
Section 6903), (v) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. Section 9601 et seq.
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(42 U.S.C. Section 9601), (vi) defined as "hazardous waste, "extremely
hazardous waste" or "restricted hazardous waste" under any applicable state
law, or (vii) defined as a "hazardous material" or "hazardous substance"
under any applicable state law.
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 Notice from Tenant specifying such failure
(unless such performance will, due to the nature of the obligation, reasonably
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, Tenant shall give
notice by registered or certified mail to Ground Lessor and to any Holder of a
Mortgage covering the Premises or the Project and Tenant shall offer all such
persons a reasonable opportunity to cure the default, including time to obtain
possession of the Premises or 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 ground lessee's interest under the Ground Lease and not thereafter. The
term "LANDLORD" in this Lease shall mean only the owner, for the time being, of
the ground lessee's interest under the Ground Lease, and upon the transfer by
such owner of such ground lessee's interest under the Ground Lease, such owner
shall thereupon be released and discharged from all obligations of Landlord
thereafter accruing, but such obligations shall be binding during the Term and
any Term Extension upon each new owner for the duration of such owner's
ownership. Any liability of Landlord under this Lease shall be limited solely
to its interest in the Project, and 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, employees, agents, or contractors. Under no circumstances shall
Landlord or any of Landlord's officers, employees, agents or contractors be
liable for injury to Tenant's business or for any loss of income or profit
therefrom.
32. INSPECTION AND ACCESS. During business hours on not less than 48 hours
advance Notice (except in the case of emergencies in which case no such Notice
shall be required and such entry may be at any time), 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, including, without
limitation, for the purpose of showing the Premises to prospective purchasers
and, during the last year of the Term or any Term Extension (as the case may
be), to prospective tenants, and 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 shall use commercially reasonable efforts to
minimize any loss, injury, inconvenience to or interference with Tenant's
business, or loss of occupancy or quiet enjoyment of the Premises occasioned by
Landlord entering the Premises pursuant to this Section. Landlord also may
grant easements, make public dedications, designate common areas and create
restrictions on or about the Premises, provided, however, that no sign or
easement, dedication, designation, or restriction materially adversely
interferes with Tenant's use or occupancy of the Premises. At Landlord's
request, Tenant shall execute such instruments as may be necessary for such
easements, dedications, or restrictions.
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
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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. Except for the payment of Rent, neither party shall be held
responsible for delays in the performance of its obligations hereunder when
caused by strikes, lockouts, labor disputes, acts of God, 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 shall pay Tenant's Broker
the commission agreed upon by Tenant and Tenant's Broker pursuant to their
separate agreement, as reviewed and approved by Landlord. Landlord and Tenant
each represent and warrant 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 Tenant's Broker. Landlord and
Tenant each hereby agree to indemnify and hold the other harmless from and
against any claims by any other Broker claiming a commission or other form of
compensation by virtue of having dealt with Tenant or Landlord, as applicable,
with regard to this leasing transaction. This Lease constitutes the complete
agreement of Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have been
made by Landlord or Tenant, or anyone acting on behalf of Landlord or Tenant,
including any Brokers representing either Landlord or Tenant, that are not
contained herein, and any prior agreements, promises, negotiations, or
representations are superseded by this Lease. Tenant represents and warrants
that no broker or agent has made any representation or warranty relied upon by
Tenant in Tenant's decision to enter into this Lease. Landlord in executing
this Lease does so in reliance upon Tenant's representations and warranties
contained herein. 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
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
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HEREOF AND ANY LIABILITY OF LANDLORD HEREUNDER SHALL BE STRICTLY LIMITED TO
LANDLORD'S INTEREST IN THE PROPERTY OF WHICH THE PREMISES ARE A PART.
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 terms to such illegal, invalid or unenforceable clause or provision
as may be possible and be legal, valid and enforceable.
38. GROUND LEASE.
(a) Tenant acknowledges that the Premises, the Project, and this Lease are and
shall remain subject and subordinate to the Ground Lease and the
Development Rights Agreement and to the rights of Ground Lessor thereunder,
and to all amendments, restatements, renewals, modifications, 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 receipt from Ground Lessor (or any successor or
assignee thereof, as appropriate) of a fully executed instrument containing
appropriate non-disturbance provisions assuring Tenant's quiet enjoyment of
the Premises as set forth in Section 24 hereof shall be a condition
precedent to the subordination of Tenant's interest and rights hereunder
and Tenant's interest and rights hereunder shall not be disturbed by Ground
Lessor. Tenant agrees, at the election of Ground Lessor, to attorn to
Ground Lessor. Unless Ground Lessor and Tenant mutually agree upon and
execute and deliver a different form of Subordination, Non-Disturbance and
Attornment Agreement, Tenant shall, upon demand, execute, acknowledge, and
deliver a Subordination, Non-Disturbance and Attornment Agreement
substantially in the form attached hereto as Exhibit L (the "LEASE
SUBORDINATION AGREEMENT") or such other instruments, confirming such
subordination and instruments of attornment as shall be reasonably
requested by Ground Lessor, provided any such instruments contain the
appropriate non-disturbance provisions described above. Tenant
acknowledges that, among other things, notwithstanding the terms of this
Lease, (i) the final design and aesthetic of the Premises and the Project,
(ii) any Transfer, (iii) any financing to be secured by Tenant's interest
in this Lease, and (iv) the "EXPANSION RIGHT" (as defined in Section 40(a)
below), may be subject to the requirements of the Ground Lease and/or the
Development Rights Agreement and/or to the approval of Ground Lessor.
(b) Tenant shall be responsible for, and hereby covenants to satisfy in a
timely fashion, any and all obligations, covenants, responsibilities,
and/or indemnities binding on Landlord as holder of the ground lessee's
interest under the Ground Lease or as a party to the Development Rights
Agreement (collectively, the "GROUND LEASE OBLIGATIONS"), including,
without limitation, the payment of the annual rent provided for in the
Ground Lease (at the times and in the manner specified in Section 3(b)(ii)
above), the payment or reimbursement of all expenses to be paid or
reimbursed by Landlord under the Ground Lease, the payment of the rent
provided for in the Development Agreement, and the payment or reimbursement
of all expenses to be paid or reimbursed by Landlord under the Development
Rights Agreement; provided, however, that the terms and conditions of this
Lease shall control to the extent the responsibility for satisfying any
Ground Lease Obligation is expressly conferred on Landlord and/or allocated
between Landlord and Tenant herein. For illustration purposes only,
Sections 13 and 14 hereof allocate between Landlord and Tenant all
maintenance and repair obligations with respect to the Premises and the
Project and, therefore, such provisions control.
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If Tenant fails to satisfy, in a timely fashion, any of the Ground Lease
Obligations in the manner required hereunder, Landlord shall have the right
(but not the obligation) to satisfy the same, and any cost incurred by
Landlord in doing so shall be payable to Landlord on demand as Additional
Rent or includable by Landlord as an Operating Expense. Further, Tenant
shall indemnify, defend, hold, and save Landlord harmless from and against
any and all Claims arising out of or in connection with any such failure by
Tenant. Conversely, if Tenant gives Landlord Notice requesting Landlord to
take affirmative action to enforce any of Landlord's rights as ground
lessee under the Ground Lease or as a party to the Development Rights
Agreement or to enforce any obligation, covenant, responsibility, and/or
indemnity of Ground Lessor under the Ground Lease and/or the Development
Rights Agreement (collectively, the "GROUND LEASE RIGHTS") and Landlord
elects not to do so, Tenant shall have the right, at Tenant's sole cost and
expense, to take affirmative action to enforce any such Ground Lease
Rights, and for such purpose Landlord, effective as of Landlord's election
not to take affirmative action, appoints Tenant attorney-in-fact for
Landlord (such power of attorney being coupled with an interest); provided,
however, that, notwithstanding the foregoing, the exercise of any Ground
Lease Rights that relate to Hazardous Materials (as provided in Section
30(a) hereof) shall be subject to compliance with Section 3 of the Cost
Sharing Agreement. Tenant shall indemnify, defend, hold, and save Landlord
harmless from and against any and all Claims arising out of or in
connection with any affirmative action taken by Tenant to enforce any
Ground Lease Rights. Tenant's rights and obligations under this Section
shall terminate and be of no further force or effect as of the expiration
or earlier termination of this Lease, provided that all obligations that
have arisen and/or become binding hereunder but have not been fully
satisfied as of the expiration or earlier termination of this Lease shall
survive such expiration or earlier termination.
(c) Pursuant to the Development Rights Agreement, Ground Lessor is allocating
to the Site the additional "DEVELOPMENT RIGHTS" (as defined in the
Development Rights Agreement) necessary to permit the Greenhouse to be
significantly larger than originally planned (as expressly desired by
Tenant). Tenant acknowledges that Tenant has been expressly named in the
Development Rights Agreement as an "intended third party beneficiary"
entitled to enforce Landlord's remedies against Ground Lessor in the event
of a default by Ground Lessor under the Development Rights Agreement. If,
at any time prior to the expiration or earlier termination of this Lease,
there shall be insufficient Development Rights to permit either the
Premises or the Greenhouse to remain, or to be restored to, the size and
configuration contemplated in this Lease and the Greenhouse Lease (a
"DEVELOPMENT RIGHTS DEFICIENCY"), Tenant's sole and exclusive remedy at
law, in equity, or otherwise shall be to pursue Ground Lessor under the
Development Rights Agreement or at law or in equity, except to the extent,
and only to the extent, that the Development Rights Deficiency is
attributable to the gross negligence or willful misconduct of Landlord (a
"LANDLORD CAUSED DEVELOPMENT RIGHTS DEFICIENCY"). Tenant hereby expressly,
absolutely, unconditionally, and irrevocably waives and relinquishes any
right Tenant may now have or may hereafter acquire to initiate, institute,
maintain, or prosecute any action or proceeding against Landlord for any
claims, sums of money, compensation, damages, costs, losses, or expenses,
of any type, kind, nature, description, or character, that in any way arise
out of, are connected with, or relate to any Development Rights Deficiency
other than a Landlord Caused Development Rights Deficiency.
39. SIGNS; EXTERIOR APPEARANCE. Tenant shall not, without the prior written
consent of Landlord, which shall not be unreasonably withheld or delayed: (i)
attach any awnings, exterior lights, decorations, balloons, flags, pennants,
banners, painting, or other projection to any outside wall of any part of the
Premises or the Project, (ii) store any equipment, furniture, or other items of
personal property on any exterior balcony, or (iii) paint, affix, or exhibit on
any part of the Premises or the Project any signs, notices, window or door
lettering, placards,
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decorations, or advertising media of any type that can be viewed from the
exterior of the Premises. Interior signs on doors 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. Notwithstanding the foregoing, Landlord hereby reserves the right to
install a sign or placard (of up to 2 feet by 2 feet) that can be viewed from
the exterior of the Premises and that identifies the Project as an asset of
Alexander Real Estate Equities, Inc.
40. RIGHT TO EXPAND.
(a) GENERALLY. Subject to any necessary permits, licenses, approvals,
certificates, or other entitlements required by any Governmental Authority
exercising or having jurisdiction, Landlord and Tenant reasonably believe
that approximately 50,000 square feet of additional office/research and
development space, with a building footprint of no more than 25,000 square
feet (the "ADDITIONAL BUILDING"), can be constructed on the Additional
Site. Tenant shall have the right (the "EXPANSION RIGHT"), but not the
obligation, at any time between the Commencement Date and 20 business days
prior to the 3rd anniversary of the Ground Lease Rent Commencement Date
(the "EXPANSION RIGHT EXPIRATION DATE"), to give Landlord Notice (the
"EXPANSION NOTICE") requesting that Landlord exercise the Expansion Option
(if not previously exercised) and design, permit, and construct the
Additional Building on the Additional Site (generally, the "EXPANSION").
Tenant shall reimburse Landlord for all reasonable out-of-pocket expenses,
up to a maximum of $1,000.00, incurred by Landlord in connection with its
consideration of any Expansion Notice. Notwithstanding the foregoing,
Landlord may exercise the Expansion Option at any time before the 3rd
anniversary of the Ground Lease Rent Commencement Date (the "EXPANSION
OPTION EXPIRATION DATE"), regardless of whether Tenant ever gives Landlord
an Expansion Notice, provided that Landlord may not construct any
improvements on the Additional Site for lease to other tenants unless and
until the Expansion Right expires or is terminated in accordance with the
terms and conditions of this Section.
(b) BEFORE JULY 1, 2001. Landlord shall exercise the Expansion Option (if not
previously exercised) and proceed with the Expansion if Tenant gives
Landlord the Expansion Notice at any time before July 1, 2001, and all of
the requirements described below are satisfied (each, an "EXPANSION
REQUIREMENT" and collectively, the "EXPANSION REQUIREMENTS"):
(i) Tenant has completed an initial public offering of Tenant's capital shares
resulting in gross proceeds to Tenant of at least $75,000,000.00, or Tenant
has entered into binding, third-party contracts that provide, in the
aggregate, at least the following guaranteed minimum economic benefits to
Tenant, subject only to contractual targets, requirements, goals,
milestones, and/or deliverables that Tenant is reasonably capable of
meeting (as reasonably determined by Landlord, in good faith):
A. net revenues to Tenant (before taxes) of $30,000,000.00 over a
3-year period beginning not more than 3 months after the date
Landlord receives Tenant's Expansion Notice; and
B. net revenues to Tenant (before taxes) of $75,000,000.00 over a
5-year period beginning not more than 6 months after the date
Landlord receives Tenant's Expansion Notice; and
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(ii) Landlord reasonably determines, in good faith, that there has been no
material, adverse change since the Effective Date in Tenant's financial
position (including, without limitation, Tenant's net worth, profitability,
or liquidity).
If Tenant does not satisfy all of the Expansion Requirements, Landlord may elect
to exercise the Expansion Option (if not previously exercised) and to proceed
with the Expansion or may elect not to exercise the Expansion Option (if not
previously exercised) or to proceed with the Expansion by giving Notice to
Tenant of such election within 30 days after receipt of the Expansion Notice.
If Landlord elects not to exercise the Expansion Option (if not previously
exercised) or to proceed with the Expansion, this Lease shall continue in full
force and effect without any changes in the rights and obligations of the
parties.
(c) FROM JULY 1, 2001, THROUGH EXPANSION RIGHT EXPIRATION DATE. If Tenant
gives Landlord the Expansion Notice at any time from July 1, 2001, through
the Expansion Right Expiration Date, Landlord may elect to exercise the
Expansion Option (if not previously exercised) and to proceed with the
Expansion or may elect not to exercise the Expansion Option (if not
previously exercised) or to proceed with the Expansion by giving Notice to
Tenant of such election within 10 business days after receipt of the
Expansion Notice. If Landlord elects not to exercise the Expansion Option
(if not previously exercised) or to proceed with the Expansion, Landlord
and Tenant shall negotiate regarding the Expansion in good faith for a
reasonable period of time not to exceed 10 business days (provided that
such negotiations must conclude at least 5 business days prior to the
Expansion Option Expiration Date). Only if Landlord and Tenant cannot
reach an agreement regarding the Expansion after such good faith
negotiations and Tenant gives Landlord Notice that Tenant still elects to
proceed with the Expansion, (i) Landlord shall assign to Tenant all of
Landlord's rights in connection with the Expansion Option, (ii) Tenant, at
Tenant's sole cost and expense, may exercise the Expansion Option and
design, permit, and construct the Expansion (provided that all rights in
connection with the Expansion Option shall automatically revert to Landlord
if Tenant does not exercise the Expansion Option within 3 business days
after its assignment to Tenant), and (iii) Landlord shall reasonably
cooperate with Tenant's efforts to design, permit, and construct the
Expansion. If Landlord and Tenant cannot reach an agreement regarding the
Expansion after good faith negotiations and Tenant elects not to proceed
with the Expansion, this Lease shall continue in full force and effect
without any changes in the rights and obligations of the parties except
that the Expansion Right shall terminate.
(d) EXPANSION LEASE. If the parties jointly proceed with the Expansion as a
result of the operation of the foregoing provisions, Landlord and Tenant
shall enter into a separate lease agreement covering the Expansion (the
"EXPANSION LEASE"). Under all circumstances, the term of the Expansion
Lease shall be at least 10 years and shall be adjusted as necessary to make
the Expansion Lease expire at the same time as this Lease expires, provided
that Tenant shall be deemed to have exercised any Extension Rights that may
be necessary in order for this Lease to expire no less than 10 years after
the commencement date of the Expansion Lease. If the Expansion occurs as a
result of the operation of paragraph (b) above, the Expansion Lease shall
be on the same legal and economic terms as this Lease (including the Work
Letter), with the exception of any warrants issued by Tenant in connection
with this Lease. If the Expansion occurs as a result of the operation of
paragraph (c) above, the Expansion Lease shall be on the same legal terms
as this Lease (including the Work Letter) and on such economic terms as
shall be mutually determined by the parties after negotiating in good faith
for a reasonable period of time, provided, however, that if Landlord and
Tenant cannot reach an agreement regarding the economic terms of the
Expansion Lease after negotiating in good faith for a reasonable period of
time, Tenant may elect, at Tenant's sole cost and expense,
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Paradigm Genetics, Inc.--Page 38
to unilaterally design, build, and pay for the Additional Building. If
Tenant elects to do so, Tenant shall provide to Landlord, for Landlord's
written approval (which approval may not be unreasonably withheld or
delayed), copies of any plans, specifications, bid proposals, work
contracts, or other information concerning the nature and cost of the
Additional Building that Tenant may have in its possession or control,
including the identities and mailing addresses of all persons performing
work or supplying materials (collectively, "ADDITIONAL BUILDING
INFORMATION"). If Landlord approves the Additional Building Information,
Landlord may impose such conditions on Tenant in connection with the
commencement, performance, and completion of the Additional Building as
Landlord may deem appropriate (in Landlord's reasonable discretion). Any
request for approval of the Additional Building Information shall be in
writing and delivered to Landlord not less than 15 business days before
construction is scheduled to begin. Landlord's right to review the
Additional Building Information and to monitor construction shall be solely
for its own benefit, and Landlord shall have no duty to see that either the
Additional Building Information or the construction complies with
applicable Legal Requirements. Tenant, at its sole cost and expense, shall
cause the Additional Building to comply with insurance requirements known
to Tenant and with applicable Legal Requirements. Tenant will give Landlord
Notice at least 5 days (or any longer period that may be required under the
Ground Lease) before beginning construction on the Additional Building so
that Landlord may post on and about the Premises and the Additional Site
notices of non-responsibility pursuant to applicable law. Tenant, at its
sole cost and expense, shall correct any faulty work or inadequate cleanup
done by Tenant or its contractors within 5 business days after Notice of
the same from Landlord, and Tenant shall reimburse Landlord for, and
indemnify and hold Landlord harmless from, any reasonable and necessary
expenses incurred by Landlord by reason of such faulty work or inadequate
cleanup or by reason of delays caused by the same.
(e) EXCEPTIONS. Notwithstanding the above, the Expansion Right shall not be in
effect and may not be exercised by Tenant:
(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 consecutive
month period prior to the date on which Tenant seeks to exercise the
Expansion Right.
(f) TERMINATION. Landlord, in Landlord's sole and absolute discretion, may
terminate the Expansion Right, even after Tenant's due and timely exercise
of the Expansion Right, if, after such exercise, but prior to the
commencement date of the Expansion Lease, (i) 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 Expansion
Right to the date of the commencement of the Expansion Lease, whether or
not such Defaults are cured.
(g) RIGHTS PERSONAL. The Expansion Right is personal to Tenant and is not
assignable separate and apart from this Lease, except that it may be
assigned in connection with any Approved Transfer, as defined in Section
22.
41. RIGHT TO EXTEND TERM. Tenant shall have the right to extend the Term upon
the following terms and conditions:
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(a) EXTENSION RIGHTS. Tenant shall have 2 consecutive rights (each, an
"EXTENSION RIGHT") to extend the term of this Lease for 5 years each (each,
a "TERM EXTENSION") on the same terms and conditions as this Lease by
giving Notice to Landlord of Tenant's election to exercise each Extension
Right at least 12 months prior to the expiration of the Term or the
expiration of any prior Term Extension. During any Term Extension, Base
Rent shall be payable at the "MARKET RATE" (as defined below), but in no
event less than the Base Rent payable as of the date immediately preceding
the commencement of such Term Extension. Base Rent shall be adjusted on
the commencement of each Term Extension and on each annual anniversary of
the commencement of such Term Extension shall be increased by a percentage
determined by Landlord and Tenant at the time the Market Rate is determined
(the "EXTENSION RENT ADJUSTMENT PERCENTAGE"). As used herein, "MARKET
RATE" shall mean the then market rental rate as determined by Landlord and
Tenant, taking into account the base rent then payable at Similar
Facilities. If, on or before the date that is 180 days prior to the
expiration of the Term or the expiration of any prior Term Extension,
Tenant has not agreed with Landlord's determination of the Market Rate and
the Extension Rent Adjustment Percentage during such subsequent Term
Extension after negotiating in good faith, Tenant may elect arbitration as
described in Section 41(b) below. If Tenant does not elect such
arbitration, Tenant shall be deemed to have waived any right to extend, or
further extend, the Term and all of the remaining Extension Rights shall
terminate.
(b) ARBITRATION.
(i) Within 10 business days of Tenant's election to arbitrate the Market Rate
and the Extension Rent Percentage Adjustment, each party shall deliver to
the other a proposal containing the Market Rate and the Extension Rent
Percentage Adjustment that the submitting party believes to be correct
("EXTENSION PROPOSAL"). If either party fails to timely submit an
Extension Proposal, the other party's Extension Proposal shall determine
the Base Rent and the Extension Rent Percentage Adjustment for the Term
Extension. If both parties submit Extension Proposals, then Landlord and
Tenant shall meet within 7 business days after delivery of the last
Extension Proposal and make a good faith attempt to mutually appoint a
single "ARBITRATOR" (as defined below) to determine the Market Rate and the
Extension Rent Percentage Adjustment. If Landlord and Tenant are unable to
agree upon a single Arbitrator, then each shall, by Notice delivered to the
other within 10 business 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 Extension Proposal shall determine the Base
Rent and the Extension Rent Percentage Adjustment for the Term Extension.
The 2 Arbitrators so appointed shall, within 5 business days after their
appointment, appoint a 3rd Arbitrator. If the 2 Arbitrators so selected
cannot agree on the selection of the 3rd Arbitrator within the time above
specified, then either party, on behalf of both parties, may request such
appointment of such 3rd Arbitrator by application to any Judge of the trial
level court in the jurisdiction in which the Project is located, upon 10
days prior Notice to the other party of such intent.
(ii) The authority of the Arbitrator(s) shall be limited strictly to a selection
of either Landlord's Extension Proposal in its entirety or Tenant's
Extension Proposal in its entirety as the Extension Proposal that most
closely approximates the Market Rate and the Extension Rent Percentage
Adjustment. The Arbitrator(s) shall have no authority to create an
independent structure of the Market Rate and the Extension Rent Percentage
Adjustment, combine elements of both Extension Proposals to create a third,
or compromise or alter in any way any of the components of the Extension
Proposals submitted by the parties. The sole decision to be made shall be
which of the parties' Extension Proposals in its entirety shall
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determine the Market Rate and the Extension Rent Percentage Adjustment for
the Term Extension.
(iii) The decision of the Arbitrator(s) shall be made within 30 days after the
appointment of a single Arbitrator or the 3rd Arbitrator, as applicable. The
decision of the single Arbitrator or majority of the 3 Arbitrators 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 3rd Arbitrator shall be borne equally by both parties. If the
Market Rate and the Extension Rent Percentage Adjustment are not determined by
the first day of the Term Extension, then Tenant shall pay Landlord Base Rent in
an amount equal to the Base Rent in effect immediately prior to the Term
Extension until such determination is made. After the determination of the
Market Rate and the Extension Rent Percentage Adjustment, 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 the Extension
Rent Percentage Adjustment for the Term Extension.
(iv) 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 Sub-Market, 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 Sub-Market, (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) RIGHTS PERSONAL. The Extension Rights are personal to Tenant and are not
assignable separate and apart from this Lease, except that they may be
assigned in connection with any Approved Transfer, as defined in Section 22
of this Lease.
(d) EXCEPTIONS. Notwithstanding anything set forth above to the contrary,
Extension Rights shall not be in effect and Tenant may not exercise any of
the Extension Rights:
(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 consecutive
month period immediately prior to the date that Tenant intends to exercise
an Extension Right, whether or not the Defaults are cured.
(e) NO EXTENSIONS. The period of time within which any Extension Rights may be
exercised shall not be extended or enlarged by reason of the Tenant's
inability to exercise the Expansion Rights.
(f) TERMINATION. Landlord, in Landlord's sole and absolute discretion, may
terminate the Extension Rights, even after Tenant's due and timely exercise
of an Extension Right, if, after such exercise, but prior to the
commencement date of an Term Extension, (i) 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 an Extension Right
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to the date of the commencement of the Term Extension, whether or not such
Defaults are cured.
42. [INTENTIONALLY OMITTED]
43. [INTENTIONALLY OMITTED]
44. MISCELLANEOUS.
(a) NOTICES. Any communication, notice, or demand of any kind whatsoever that
either party may be required or may desire to give to or serve on the other
party (a "NOTICE") shall be in writing and shall be deemed duly given if
delivered in person or sent by reputable overnight guaranty courier,
addressed to the parties at their addresses set forth in the Basic Lease
Provisions. Either party may designate from time to time a new address for
receipt of future Notices by giving the other party Notice of such new
address at least 5 days prior to the effective date of such new address.
(b) JOINT AND SEVERAL LIABILITY. If and when included within the term
"TENANT," as used in this instrument, there is more than one person, firm
or corporation, each shall be jointly and severally liable for the
obligations of Tenant.
(c) LANDLORD CONSENTS. Except as otherwise expressly provided in this Lease or
as otherwise required by law, Landlord retains the absolute right to
withhold any consent or approval. Further, regardless of any standard that
may be applicable to any consent or approval rights given to Landlord
hereunder, Landlord shall be justified in withholding, and shall not incur
any liability for so withholding, any consent or approval to any action,
document, or matter that Landlord determines, in its sole and absolute
discretion, will or might adversely affect Landlord's status as a "real
estate investment trust".
(d) FINANCIAL INFORMATION. During the Term and any Term Extension, Tenant
shall provide Landlord with the following financial information or business
related reports:
(i) Unaudited quarterly financial statements within 30 days after the end of
each of Tenant's fiscal quarters;
(ii) Audited annual financial statements within 90 days after the end of each of
Tenant's fiscal years; and
(iii) Updates to Tenant's business plan no less than once every 12 months and
otherwise within 30 days after the completion and/or submittal of any such
update to Tenant's board of directors.
(e) RECORDATION. This Lease shall not be recorded or filed by or on behalf of
Tenant in any public record. Notwithstanding the foregoing, this Lease is
evidenced of record by the Lease Memorandum. Upon Tenant's request and at
Tenant's sole cost and expense, Landlord shall prepare, execute, and cause
to be recorded or filed an amendment of the Lease Memorandum, which
amendment shall amend any information in the Lease Memorandum that has been
amended in this Lease.
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(f) 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.
(g) 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.
(h) 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.
(i) CHOICE OF LAW. Construction and interpretation of this Lease shall be
governed by and construed and enforced in accordance with the internal laws
of the state in which the Premises are located, without regard to choice of
law principles of such state.
(j) TIME. Time is of the essence as to the performance of each party's
obligations under this Lease.
(k) ATTORNEYS FEES. If either Landlord or Tenant reasonably seeks legal
services with respect to the proper interpretation or enforcement of this
Lease, the party receiving substantially the result it sought or defended
(the "PREVAILING PARTY"), whether by award, judgment, stipulation,
settlement, workout, default, or otherwise and whether or not any legal
action may have been instituted or instituted and then voluntarily
dismissed, shall be entitled to recover from the adverse party all
reasonable fees and costs incurred by the Prevailing Party in connection
with such legal services ("LEGAL FEES"). Legal Fees include, without
limitation, (i) fees, costs, and expenses of any engineers, accountants,
appraisers, consultants, brokers, and other professionals or experts
retained or consulted by the Prevailing Party, and other costs and expenses
of investigation or analysis incurred by the Prevailing Party in support of
its position, and (ii) all such fees, costs, and expenses incurred in any
aspect of the legal process, whether out-of-court negotiations, mediation,
arbitration, commencement of suit, discovery, law and motion, trial,
appellate proceedings, or any action or participation in, or in connection
with, any case or proceeding under Chapter 7, 11, or 13 of the Bankruptcy
Code, 11 U.S.C. Section 101 et seq., or any successor statutes.
(l) NO THIRD PARTY BENEFITS. Landlord and Tenant do not intend by any
provision of this Lease to confer any right, remedy, or benefit upon any
third party,
Net Office/Laboratory Lease 000 Xxxxxxxxx Xxx., XXX/
Paradigm Genetics, Inc.--Page 43
and no third party shall be entitled to enforce, or otherwise shall acquire
any right, remedy, or benefit by reason of, any provision of this Lease.
(m) COUNTERPARTS. This Lease may be executed in any number of counterparts,
each of which shall be deemed an original and all of which, taken together,
shall constitute a single agreement with the same effect as if all parties
had signed the same signature page. Any signature page from any
counterpart of this Lease, signed only by one party, may be detached from
such counterpart and re-attached to any other counterpart of this Lease
that has a signature page signed only by the other party.
(n) INTEGRATION. This Lease and all exhibits and addenda attached hereto
constitute the entire understanding of the parties with respect to the
subject matter hereof and supersede all prior and contemporaneous oral or
written representations, statements, documents, understandings, and
agreements with respect thereto.
(o) SUCCESSORS AND ASSIGNS. Without limiting in any way the provisions of
Section 22, this Lease shall be binding upon, and inure to the benefit of,
the parties hereto and their respective permitted successors and assigns.
(p) NO WAIVER; REMEDIES CUMULATIVE. No purported waiver of any provision of
this Lease shall be binding unless such waiver is in writing and signed by
the party to be bound. In addition, no waiver of any provision of this
Lease shall be deemed, or shall constitute, a waiver of any other provision
of this Lease, whether or not similar, nor shall any waiver constitute a
continuing waiver. Further, no failure to exercise and no delay in
exercising any power, right, remedy, or privilege under this Lease shall
impair such power, right, remedy, or privilege or shall be deemed, or shall
constitute, a waiver of any default under this Lease or acquiescence
therein, nor shall any single or partial exercise of any such power, right,
remedy, or privilege preclude any other or further exercise thereof or of
any other power, right, remedy, or privilege. Finally, all powers, rights,
remedies, and privileges existing under this Lease are cumulative, in
addition to, and not exclusive of any other powers, rights, remedies, or
privileges otherwise available to the parties to this Lease.
(q) INCORPORATION BY REFERENCE. All exhibits and addenda attached hereto are
hereby incorporated into this Lease and made a part hereof. Except to the
extent expressly provided otherwise herein, if there is any conflict
between such exhibits or addenda and the terms of this Lease, such exhibits
or addenda shall control.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amended and
Restated Lease Agreement to be effective as of the day and year first above
written.
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By:_____________________________________
Xxxx X. Xxxxx
CEO and President
Execution Date:____________________________
ATTEST: _____________________
Its __________________ Secretary
[CORPORATE SEAL]
LANDLORD:
ARE-104 ALEXANDER ROAD, LLC, (SEAL)
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., (SEAL)
a Delaware limited partnership, managing member
By: ARE-QRS CORP., (SEAL)
a Maryland corporation, general partner
By:_____________________________________
Print Name:______________________________
Print Title:______________________________
Execution Date:___________________________
ATTEST: _____________________
Its __________________ Secretary
[CORPORATE SEAL]
EXHIBIT A-1
DESCRIPTION OF SITE
-------------------
Being a particular tract or tracts of land located in Durham County, Triangle
Township, Research Triangle Park, North Carolina and being further described
below:
BEGINNING at a point, said point being located the following courses from NC
Geodetic Monument "Triad", said NC Geodetic Monument bearing NC Grid Coordinates
NAD 83 of N:238,772.801 Meters, E:620,488.448 Meters; Thence from said monument,
South 01(degree)34'26" West a ground distance of 3,011.37 feet to an existing
R/W Monument set in the westerly right-of-way of X.X. Xxxxxxxxx Drive; Thence
with said right-of-way along a curve to the right having a radius of 2846.41
feet, an arc length of 153.75 feet and being subtended by a chord bearing and
distance of South 02(degree)43'15" West,153.73 feet to an existing concrete R/W
Monument set in the westerly right-of-way of X.X. Xxxxxxxxx Drive; Thence
leaving said right-of-way, North 87(degree)20'44" West a distance of 142.69 feet
to a point, said point being the POINT AND PLACE OF BEGINNING.
Thence, from the POINT AND PLACE OF BEGINNING South 02(degree)44'10" West a
distance of 100.85 feet to a point; Thence, North 89(degree)49'25" West a
distance of 85.25 feet to a point; Thence, South 02(degree)33'01" West a
distance of 80.34 feet to a point; Thence, North 89(degree)49'25" West a
distance of 157.55 feet to a point; Thence, South 02(degree)26'24" West a
distance of 88.04 feet to a point; Thence, North 89(degree)49'25" West a
distance of 52.18 feet to a point; Thence, South 02(degree)26'24" West a
distance of 336.73 feet to a point; Thence, North 88(degree)43'29" West a
distance of 276.76 feet to an existing concrete monument; Thence, North
01(degree)16'24" East a distance of 330.28 feet to an existing concrete
monument; Thence, North 88(degree)03'29" West a distance of 22.85 feet to a new
iron pipe; Thence, North 84(degree)51'33" West a distance of 150.08 feet to an
existing concrete monument; Thence, North 05(degree)10'14" East a distance of
235.37 feet to a new iron pipe; Thence, South 87(degree)36'14" East a distance
of 150.23 feet to a new iron pipe; Thence, North 05(degree)09'46" East a
distance of 16.45 feet to a new iron pipe; Thence, South 87(degree)36'14" East a
distance of 105.32 feet to a new iron pipe; Thence, North 02(degree)39'16" East
a distance of 36.22 feet to a new iron pipe; Thence, South 87(degree)20'44" East
a distance of 483.95 feet to the POINT AND PLACE OF BEGINNING and containing
265,020.77 sq. ft. (6.084 acres), and being shown on a particular survey or plat
entitled "ALTA/ACSM Property Survey - 000 X.X. Xxxxxxxxx Xxxxx", project number
98321.01, prepared by Xxxxxxx X. Xxxxxx Engineering, Inc., dated 04/30/99 and
revised 07/21/99.
EXHIBIT A-2
DESCRIPTION OF ADDITIONAL SITE
------------------------------
Being a particular tract or tracts of land located in Durham County, Triangle
Township, Research Triangle Park, North Carolina and being further described
below:
BEGINNING at a point, said point being located the following courses from NC
Geodetic Monument "Triad", said NC Geodetic Monument bearing NC Grid Coordinates
NAD 83 of N:238,772.801 Meters, E:620,488.448 Meters; Thence from said monument,
South 01(degree)34'26" West a ground distance of 3,011.37 feet to an existing
R/W Monument set in the westerly right-of-way of X.X. Xxxxxxxxx Drive; Thence
with said right-of-way along a curve to the right having a radius of 2846.41
feet, an arc length of 153.75 feet and being subtended by a chord bearing and
distance of South 02(degree)43'15" West,153.73 feet to an existing concrete R/W
Monument set in the westerly right-of-way of X.X. Xxxxxxxxx Drive, said monument
being the POINT AND PLACE OF BEGINNING.
Thence, from the POINT AND PLACE OF BEGINNING along the right-of-way of X.X.
Xxxxxxxxx Drive with a curve to the right having a radius of 2846.41 feet, an
arc length of 610.47 feet and being subtended by a chord bearing and distance of
South 04(degree)58'14" West, 609.30 feet to an existing concrete monument;
Thence, North 88(degree)43'29" West a distance of 411.30 feet to a point;
Thence, North 02(degree)26'24" East a distance of 336.73 feet to a point;
Thence, South 89(degree)49'25" East a distance of 52.18 feet to a point; Thence
North 02(degree)26'24" East a distance of 88.04 feet to a point; Thence, South
89(degree)49'25" East a distance of 157.55 feet to a point; Thence, North
02(degree)33'01" East a distance of 80.34 feet to a point; Thence, South
89(degree)49'25" East a distance of 85.25 feet to a point; Thence North
02(degree)44'10" East a distance of 100.85 feet to a point; Thence, South
87(degree)20'44" East a distance of 142.69 feet to the POINT AND PLACE OF
BEGINNING and containing 214,139.28 sq. ft. (4.916 acres), and being shown on a
particular survey or plat entitled "ALTA/ACSM Property Survey - 104 X.X.
Xxxxxxxxx Drive", prepared by Xxxxxxx X. Xxxxxx Engineering, Inc., dated
04/30/99 and revised 07/21/99.
EXHIBIT B
DESCRIPTION OF PREMISES
-----------------------
[See Attached Site Map]
EXHIBIT C
AMENDED AND RESTATED
WORK LETTER
[PHASE 1A: OFFICE / LABORATORY]
This AMENDED AND RESTATED WORK LETTER, executed as of April ___, 2000, and
effective as of July 27, 1999 (this "WORK LETTER"), (i) is made and entered into
by and between ARE-104 ALEXANDER ROAD, LLC, a Delaware limited liability company
("LANDLORD"), and PARADIGM GENETICS, INC., a Delaware corporation (formerly a
North Carolina corporation) ("TENANT"), (ii) amends, restates, and supersedes in
its entirety that certain Work Letter dated as of July 27, 1999, between
Landlord and Tenant, and (iii) is attached to and made a part of the Amended and
Restated Lease Agreement [Phase 1A: Office / Laboratory] executed as of April
___, 2000, and effective as of July 27, 1999, by and between Landlord and Tenant
(the "LEASE") (which Lease is evidenced of record by a certain Memorandum of
Lease Agreement dated as of July 27, 1999, and recorded July 27, 1999, in Book
2684, Page 810 of the Official Records of Durham County, North Carolina (the
"OFFICIAL RECORDS")). Any initially capitalized terms used but not defined
herein shall have the meanings given them in the Lease.
RECITALS
A. Landlord has entered into a Ground Lease Agreement dated as of July 27,
1999 (the "ORIGINAL GROUND LEASE"), with Triangle Service Center, Inc., a North
Carolina corporation ("GROUND LESSOR"), pursuant to which Landlord has ground
leased approximately 6.084 acres of land within the Triangle Park Research
Center (which is located within Research Triangle Park, Durham County, North
Carolina), as more fully described in Exhibit A-1 attached to the Lease (the
"SITE"). The Original Ground Lease is evidenced of record by a certain
Memorandum of Ground Lease dated as of July 27, 1999, and recorded July 27,
1999, in Book 2684, Page 795 of the Official Records. In addition, Ground Lessor
and Landlord have entered into or, concurrently with the execution of the Lease,
are entering into, (i) a certain Agreement Regarding Allocation of Development
Rights (which will be evidenced of record by a certain Memorandum of Agreement
Regarding Allocation of Development Rights to be recorded in the Official
Records), and (ii) a certain First Amendment to Ground Lease Agreement (the
"GROUND LEASE AMENDMENT"). The Original Ground Lease, the Ground Lease
Amendment, and any other subsequent amendments or modifications thereto shall be
referred to collectively as the "GROUND LEASE".
B. Subject to the terms and conditions of the Lease, Landlord has agreed to
cause to be constructed on the Site, or to permit to be constructed on the Site,
certain improvements including, but not limited to, a first-class scientific
research and development building containing approximately 54,463 rentable
square feet (the "BUILDING").
C. This Work Letter contains the agreements of the parties with respect to
the design and construction of the shell and core of the Building, the site
improvements appurtenant to the Building, and all fixed and permanent
improvements to the Building (commonly referred to as the "tenant
improvements").
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 2
AGREEMENT
1. General Requirements.
--------------------
1.1. Tenant's Authorized Representative. Tenant designates Xxx Xxxxxx and
Xxxxxxxx Xxxxx & Associates (collectively, "TENANT'S REPRESENTATIVE") as the
only persons authorized to initial or approve plans, drawings, or change orders
or otherwise to act for Tenant pursuant to this Work Letter. Xxxxxxxx Xxxxx &
Associates shall act for Tenant during any period that Xx. Xxxxxx is not
available. Landlord shall not be obligated to respond to or act upon any
request, approval, inquiry, or other communication ("COMMUNICATION") from or on
behalf of Tenant in connection with this Work Letter unless such Communication
is in writing and has been initialed or approved in writing by Tenant's
Representative. Tenant may change Tenant's Representative at any time upon not
less than 5 business days advance Notice to Landlord. No period set forth
herein for any approval of any matter by Tenant shall be extended by reason of
any change in Tenant's Representative. Neither Tenant nor Tenant's
Representative shall be authorized to direct Landlord's contractors in the
performance of "LANDLORD'S WORK" (as hereinafter defined) except as may be
expressly provided otherwise herein.
1.2. Development Schedule. The schedule for design and development of the
"BASE BUILDING WORK" (as defined below) and the "TENANT IMPROVEMENTS" (as
defined below), including, without limitation, the time periods for preparation,
delivery, review, and approval of construction documents and performance
pursuant to such documents, shall be in accordance with the Development Schedule
attached hereto as Schedule A, subject to adjustment as mutually agreed by the
parties in writing or as provided in this Work Letter (the "DEVELOPMENT
SCHEDULE").
1.3. Architects, Consultants, and Contractors. The architect (the "PROJECT
ARCHITECT"), engineers, designers, and general contractor (the "PROJECT
CONTRACTOR") responsible for the design, development, and construction of the
Base Building Work and other components of the Project as a whole (collectively,
the "PROJECT WORK"), and the architect (the "TI ARCHITECT"), engineers,
designers, and general contractor (the "TI CONTRACTOR") responsible for the
design, development, and construction of the Tenant Improvements, shall be
selected by Landlord, subject to Tenant's approval, which approval shall not be
unreasonably withheld, conditioned, or delayed. The Project Contractor shall
select all subcontractors to be used for the Project Work, and the TI Contractor
shall select all subcontractors to be used for the Tenant Improvements, provided
that any subcontractors ("MAJOR SUBCONTRACTORS") under subcontracts in excess of
$100,000.00 ("MAJOR SUBCONTRACTS") shall be subject to the mutual approval of
Landlord and Tenant. The TI Architect and the TI Contractor shall coordinate
with the Project Architect in a manner reasonably satisfactory to Landlord.
Landlord and Tenant hereby acknowledge and agree that: (i) O'Xxxxx Xxxxxx &
Associates has been pre-approved as the Project Architect and the TI Architect;
and (ii) Xxxxxx Building Corporation has been pre-approved as the Project
Contractor and the TI Contractor. For purposes of this Work Letter, the Project
Architect and the TI Architect may be referred to collectively as the
"ARCHITECTS", the Project Contractor and the TI Contractor may be referred to
collectively as the "CONTRACTORS", and the Architects and the Contractors may be
referred to generally as "DEVELOPERS".
2. Building Work.
-------------
2.1. Base Building Work Defined. As used herein, "BASE BUILDING WORK" shall
mean all of the work required to design and construct, in their entirety, the
improvements
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 3
described on Schedule B attached hereto, and shall include on-site surface
parking of not less than 141 spaces (as may be limited by, and subject to, any
changes mandated by Legal Requirements (including zoning restrictions) that may
be enacted or first effective after the Effective Date and to any changes in the
design of the Building requested or approved by Tenant and made after the
Effective Date).
2.2. Tenant Improvements Defined. As used herein, "TENANT IMPROVEMENTS"
shall mean all improvements to the Building desired by Tenant of a fixed and
permanent nature, exclusive of the Base Building Work. Other than the Base
Building Work and the Tenant Improvements (collectively, "LANDLORD'S WORK"),
Landlord shall have no obligation whatsoever with respect to the finishing,
outfitting, equipping, or furnishing of the Premises for Tenant's use and
occupancy.
2.3. Building Design Program. Tenant has prepared and delivered to Landlord
and the Architects outline specifications detailing Tenant's requirements for
Landlord's Work (the "BUILDING DESIGN PROGRAM"), Landlord has delivered to
Tenant any written objections, questions, and/or comments (generally,
"COMMENTS") that Landlord and/or the Architects had regarding such Building
Design Program, and Tenant has caused the Building Design Program to be revised
to address such Comments and to be resubmitted to Landlord and the Architects
for approval. The final Building Design Program was approved on August 25, 1999.
2.4. Building Schematic Plans. Landlord has caused the Architects to
prepare and submit to Tenant for Tenant's review and comment schematic drawings
for the development of Landlord's Work (the "BUILDING SCHEMATIC PLANS"), Tenant
has delivered to Landlord and the Architects any Comments that Tenant had
regarding the Building Schematic Plans, and Landlord has caused the Architects
to revise the Building Schematic Plans to address such Comments and to resubmit
the same to Tenant for approval. The final Building Schematic Plans were
approved on October 5, 1999. Tenant hereby confirms that the final Building
Schematic Plans reflect Tenant's requirements for Landlord's Work and were
prepared substantially in accordance with the Building Design Program, and
Landlord shall have no responsibility to Tenant if such Building Schematic Plans
do not reflect Tenant's requirements for Landlord's Work.
2.5. Building Design Development Plans. Landlord has caused the Architects
to prepare and submit to Tenant for Tenant's review and comment design
development plans and specifications for the development of Landlord's Work (the
"BUILDING DESIGN DEVELOPMENT PLANS"), Tenant has delivered to Landlord and the
Architects any Comments that Tenant had regarding the Building Design
Development Plans, and Landlord has caused the Architects to revise the Building
Design Development to address such Comments and to resubmit the same to Tenant
for approval. The final Building Design Development Plans were approved on
November 30, 1999. Tenant hereby confirms that the final Building Design
Development Plans reflect Tenant's requirements for Landlord's Work and were
prepared substantially in accordance with the Building Schematic Plans, and
Landlord shall have no responsibility to Tenant if such Building Design
Development Plans do not reflect Tenant's requirements for Landlord's Work.
2.6. Building Construction Drawings. Landlord has caused the Architects to
prepare and submit to Tenant for Tenant's review and comment construction plans,
specifications, and drawings for Landlord's Work ("BUILDING CONSTRUCTION
DRAWINGS"), Tenant has delivered to Landlord and the Architects any Comments
that Tenant had regarding the
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 4
Building Construction Drawings, and Landlord has caused the Architects to
revise the Building Construction Drawings to address such Comments and to
resubmit the same to Tenant for approval. The final Building Construction
Drawings were approved on January 21, 2000. Tenant hereby confirms that the
final Building Construction Drawings reflect Tenant's requirements for
Landlord's Work and were prepared substantially in accordance with the Building
Design Development Plans, and Landlord shall have no responsibility to Tenant if
such Building Construction Drawings do not reflect Tenant's requirements for
Landlord's Work. Once approved by Tenant, Landlord shall not materially modify
the Building Construction Drawings except as may be reasonably required in
connection with the issuance of any of the "PERMITS" (as defined in Section
4.1). Landlord will give Tenant prompt Notice of any such material
modifications.
3. Approval and Completion. If there is any dispute regarding the design of
Landlord's Work that is not settled within 5 business days after Notice of such
dispute is delivered by one party to the other, (x) Landlord shall have the
right to make the final decision if the dispute concerns the design of the Base
Building Work, provided Landlord acts reasonably and such final decision is
either consistent with or a reasonable compromise between Landlord's and
Tenant's positions with respect to such dispute, and (y) Tenant shall have the
right to make the final decision if the dispute concerns the design of the
Tenant Improvements, provided Tenant acts reasonably and such final decision is
either consistent with or a reasonable compromise between Landlord's and
Tenant's positions with respect to such dispute. All costs and expenses
resulting from any final decision with respect to Landlord's Work shall be
payable out of the "BUILDING FUND" (as defined in Section 6.5). Any changes to
the Building Construction Drawings requested by Tenant following Landlord's and
Tenant's approval of same shall be processed as provided in Section 5 hereof.
4. Performance of Landlord's Work.
------------------------------
4.1. Permitting and Commencement of Landlord's Work. Landlord obtained a
building permit authorizing the construction of the Base Building Work as
contemplated in this Work Letter (the "BASE BUILDING PERMIT") on November 11,
1999, and commenced construction of the Base Building Work on November 15, 1999.
The cost of obtaining the Base Building Permit shall be payable from the
Building Fund. Landlord shall commence construction of the Tenant Improvements
upon the later of (a) the date that Landlord obtains a building permit
authorizing the construction of the Tenant Improvements as contemplated in this
Work Letter (the "TI PERMIT"), and (b) the date that the Base Building Work has
been sufficiently completed such that the work of constructing the Tenant
Improvements can be efficiently performed. Tenant shall cooperate and assist
Landlord in obtaining the TI Permit, the cost of which shall be payable from the
Building Fund. If any governmental or quasi-governmental authorities having
jurisdiction over the performance of any portion of Landlord's Work (a
"GOVERNMENTAL AUTHORITY") or any permit, license, or approval required in
connection therewith shall impose terms or conditions on the Base Building
Permit or the TI Permit (which may be referred to collectively as the
"PERMITS") that: (i) are inconsistent with Landlord's obligations under this
Work Letter; (ii) are substantially inconsistent with any of the Building
Construction Drawings; (iii) materially increase the cost of performing
Landlord's Work; or (iv) will materially delay the performance of Landlord's
Work, Landlord and Tenant shall reasonably and in good faith seek means by which
to mitigate or eliminate any such adverse terms or conditions.
4.2. Completion of Landlord's Work. In recognition and consideration of the
fact that the Building and the Tenant Improvements have been designed but only
partially
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 5
constructed, the parties to this Work Letter hereby agree that Landlord may make
"MINOR VARIATIONS" (as defined below) in the size, design, engineering,
configuration, and placement of any portion of Landlord's Work, and such Minor
Variations shall not render the Lease void or voidable nor give Tenant the right
to any reduction or abatement in Rent, notwithstanding anything contained in
this Work Letter or any rule of law or equity to the contrary. On or before the
Commencement Date (subject only to "TENANT CAUSED DELAYS" (as defined in Section
4.5) and delays occurring after March 1, 2000, caused by Force Majeure ("FORCE
MAJEURE DELAYS")), Landlord shall substantially complete or cause to be
substantially completed Landlord's Work in accordance with the Permits, and
shall obtain at least a temporary certificate of occupancy for the Building that
will allow Tenant to use and occupy such Building for substantially the purposes
contemplated in the Permitted Use (collectively, the "TEMPORARY CERTIFICATE"),
subject to Minor Variations and customary "punch list" items of a non-material
nature that do not adversely affect Tenant's use or occupancy of the Building
for substantially the purposes contemplated in the Permitted Use or the validity
of the Temporary Certificate ("SUBSTANTIALLY COMPLETE" or "SUBSTANTIAL
COMPLETION"); provided, however, that Landlord shall have no obligation to
obtain or maintain, and shall not obtain or maintain, any permits, licenses,
approvals, certificates, or other entitlements necessary or appropriate to
Tenant's specific use of the Premises or the conduct of Tenant's specific
business operations on the Premises. Upon the Substantial Completion of
Landlord's Work, each Architect shall be required to execute and deliver, for
the benefit of Tenant and Landlord, a Certificate of Substantial Completion in
the form of the American Institute of Architects document G704. For purposes of
this Work Letter, "MINOR VARIATIONS" shall mean any modifications reasonably
required: (i) to comply with all applicable Legal Requirements (including the
North Carolina State Building Code, as adopted by the City of Durham (the
"CODE")) and/or to obtain or to comply with any required permit (including the
Permits); (ii) to comply with any request by the Tenant for modifications to
Landlord's Work; (iii) to make reasonable, but minor, adjustments in order to
comport with good design, engineering, and construction practices; or (iv) to
make reasonable adjustments for field deviations or conditions encountered
during the performance of Landlord's Work.
4.3. Selection of Materials, Etc. Where more than one type of material or
structure is indicated on any of the Building Construction Drawings approved by
Landlord and Tenant, the option will be within Landlord's reasonable discretion.
As to all building materials and equipment that Landlord is obligated to supply
under this Work Letter, Landlord shall select the manufacturer thereof in
Landlord's reasonable discretion.
4.4. Delivery of the Premises. When Landlord's Work is Substantially
Complete, subject to the remaining terms and provisions of this Section, Tenant
shall accept the Premises in their then existing condition. Tenant's taking
possession and acceptance of the Premises shall not constitute a waiver of: (i)
any warranty, including those with respect to workmanship (including
installation of equipment) or material (exclusive of equipment provided directly
to Tenant by manufacturers), (ii) any non-compliance of Landlord's Work with
Legal Requirements (including the Code), or (iii) any claim that Landlord's Work
was not completed substantially in accordance with any of the Building
Construction Drawings (subject to Minor Variations and such other changes as are
permitted hereunder) (collectively, a "CONSTRUCTION DEFECT"). Tenant shall have
1 year after Substantial Completion within which to notify Landlord of any such
Construction Defect discovered by Tenant, and Landlord shall use reasonable
efforts to remedy or cause the responsible contractor to remedy any such
Construction Defect within 30 days thereafter. Notwithstanding the foregoing,
Landlord shall not be in default under the Lease if:
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 6
(a) with respect to Construction Defects that Landlord reasonably
determines, in good faith, involve or may involve structural components of the
Premises or pose or may pose a significant risk of personal injury or
substantial property damage ("SERIOUS CONSTRUCTION DEFECTS"), the applicable
contractor, despite Landlord's reasonable efforts, fails to remedy such
Construction Defect within such 30-day period, but Landlord, within 30 days
thereafter, commences and diligently and continuously pursues such remedial
action to completion, at Landlord's sole cost and expense;
(b) with respect to Construction Defects that Landlord reasonably
determines, in good faith, are not Serious Construction Defects or involve
Tenant's Property, the applicable contractor, despite Landlord's reasonable
efforts, fails to remedy such Construction Defect within such 30-day period, in
which case Landlord shall have no further obligation with respect to such
Construction Defect other than to cooperate, at no cost to Landlord, with Tenant
should Tenant elect to pursue a claim against such contractor, provided that
Tenant indemnifies and holds Landlord harmless from and against any liability,
loss, cost, damage or expense in connection with any such claim; or
(c) with respect to any part of Landlord's Work, any action by Tenant to
the extent such action results in the invalidation of any otherwise enforceable
warranty or bond that would cover the cost of remedying such Construction
Defect.
Any determination made by Landlord pursuant to paragraph (a) or (b) above shall
be deemed reasonable and in good faith if based on advice received by Landlord
from an independent and duly licensed design or construction consultant (a
"DEFECT CONSULTANT"). Tenant may ask a Defect Consultant to provide written
confirmation of the advice given Landlord in connection with a determination by
Landlord that a specific Construction Defect is not a Serious Construction
Defect if, and only if, (i) Tenant gives Landlord Notice of such desire within 3
business days after receiving Notice of Landlord's determination, and (ii)
Tenant is solely responsible for any fee, cost, charge, or other assessment
imposed by the Defect Consultant for providing such written confirmation;
provided, however, that Tenant understands and agrees that Landlord's waiver of
the potential conflict of interest facing the Defect Consultant shall be
strictly limited to the advice, and only the advice, given Landlord in the
specific instance in question and shall not apply, under any circumstances, to
any other advice or matters that may be the subject of the services provided to
Landlord by the Defect Consultant.
Landlord shall use commercially reasonable efforts to cause the following
to be included in the agreements ("DEVELOPMENT AGREEMENTS") entered into with
each Developer: (i) an express statement or agreement by each such Developer
that Tenant is an "intended third party beneficiary" with respect to all express
representations and warranties contained in such Developer's Development
Agreement and with respect to all warranties implied, at law or in equity, from
the relationship created by such Developer's Development Agreement or from the
work performed by or on behalf of such Developer pursuant to such Developer's
Development Agreement; (ii) express representations and warranties from each
Developer that are "industry standard" for such professionals when providing
services to Similar Facilities in the Sub-Market, which representations and
warranties also shall be expressly assignable to Tenant and, as to each
Architect, shall include, but not be limited to, a representation or warranty
that the Building Construction Drawings prepared by or on behalf of such
Architect comply with all applicable Legal Requirements (including the Code),
subject to Minor Variations and such other changes as are permitted hereunder;
(iii) as to the Project Architect, an express requirement that the Project
Architect obtain and/or maintain errors and omissions insurance with a minimum
limit of not less than $2,000,000.00; (iv) as to each Developer, an express
requirement that Tenant be
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 7
added as an additional insured under any insurance for which the contracting
party is to be named an additional insured; and (v) as to each Contractor, an
express requirement that such Contractor direct all manufacturers supplying
equipment to be installed in the Building to name both Landlord and Tenant as
the parties entitled to the benefits of the manufacturers' equipment warranties.
In all events, Tenant shall be entitled to receive the benefit of all design and
construction warranties and all manufacturers' equipment warranties for
equipment installed in the Building, and Landlord, if requested by Tenant, will
cooperate with Tenant in obtaining the benefit of all such warranties (subject
to the limitations described in paragraphs (a), (b), and (c) above). If
requested by Tenant, Landlord shall use commercially reasonable efforts to
obtain extended warranties from the manufacturers and suppliers of any equipment
to be installed in the Building, provided that the cost of any such extended
warranties shall be subject to Tenant's approval and, unless paid directly by
Tenant, at Tenant's option, shall be paid solely out of the Building Fund.
Within 5 days after receiving Notice from Tenant identifying punch list items,
Landlord shall undertake the correction of such punch list items and shall
complete, or cause to be completed, the correction of all punch list items
within 20 days thereafter; provided, however, if the nature of the punch list
items are such that they reasonably require more than 20 days to correct, then
Landlord shall not be deemed to be in default hereunder if Landlord commences
such correction within said 20-day period and thereafter diligently pursues the
same to completion; provided further, however, that such correction shall be
completed no later than 45 days from the date of Tenant's Notice regarding punch
list items (subject to Force Majeure Delays).
4.5. Commencement Date Delay. The Commencement Date shall occur when
Landlord's Work has been Substantially Completed (the "COMPLETION DATE"), except
to the extent that completion of Landlord's Work shall have been actually
delayed after March 1, 2000, by any one or more of the following causes (a
"TENANT CAUSED DELAY"):
(a) Tenant's Representative was not available to give or receive any
Communication (in the manner required under the notice provisions contained in
Section 44(a) of the Lease) or to take any other action required to be taken by
Tenant hereunder;
(b) Any "CHANGE REQUEST" (as defined in Section 5.1), whether or not
the "CHANGE" (as defined in Section 5) that is the subject of the Change Request
is actually performed;
(c) Construction of any Change;
(d) Tenant's request for materials, finishes, or installations
requiring unusually long lead times;
(e) Tenant's delay in reviewing, revising, providing Comments, or
approving specifications, plans, drawings, or other materials beyond the periods
set forth herein;
(f) Tenant's delay in providing information critical to the normal
progression of Landlord's Work (Tenant shall provide such information as soon as
reasonably possible, but in no event longer than 1 week after receipt of any
request for such information from Landlord that is transmitted in the manner
required under the notice provisions contained in Section 44(a) of the Lease);
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 8
(g) Tenant's delay in making payments to Landlord for "EXCESS BUILDING
COSTS" (as defined in Section 6.5);
(h) Any delay in the timely completion of Landlord's Work caused by
Tenant's inability to obtain from the appropriate Governmental Authorities all
necessary approvals of a revised site plan for the Site that reflects Tenant's
redesign of the Greenhouse; or
(i) Any other act or omission by Tenant or its agents, contractors, or
persons employed by any of such persons.
If the Commencement Date is delayed for any of the foregoing reasons, then
Landlord shall cause the Project Architect (with respect to the Base Building
Work) and the TI Architect (with respect to the Tenant Improvements) to certify
the date on which Landlord's Work would have been Substantially Completed but
for such Tenant Caused Delay and such certified date shall be the Commencement
Date under the Lease.
5. Changes. Any changes requested by Tenant to Landlord's Work ("CHANGES")
after the mutual approval of any of the Building Construction Drawings shall be
requested and instituted in accordance with the provisions of this Section and
shall be subject to the written approval of Landlord and the appropriate
Architect, such approval not to be unreasonably withheld, conditioned, or
delayed.
5.1. Tenant's Right to Request Changes. Tenant shall request Changes,
if any, by giving Notice to Landlord in substantially the same form as the AIA
standard change order form (a "CHANGE REQUEST"), which Change Request shall
detail the nature and extent of any such Change. Tenant's Representative must
sign such Change Request. Landlord, before proceeding with any Change, shall use
commercially reasonable efforts to respond to Tenant as soon as reasonably
possible with an estimate of: (i) the period of time, if any, that the Change
will extend the date on which Landlord's Work will be Substantially Complete;
and (ii) the architectural and engineering fees and costs that will be incurred
to analyze such Change Request. Within 10 business days after Landlord's receipt
of the Change Request (or such longer period of time as is reasonably required
depending on the extent of the Change Request), Landlord shall submit to Tenant
a written analysis of the additional cost or savings involved, including,
without limitation, architectural and engineering costs and the period of time,
if any, that the Change will extend the date on which Landlord's Work will be
Substantially Complete. Any such delay in the completion of Landlord's Work
caused by a Change, including any suspension of Landlord's Work while any such
Change is being evaluated and/or designed, shall be a Tenant Caused Delay.
Notwithstanding the foregoing, Landlord's Work may not be suspended as a result
of any Change Request unless specifically approved by Tenant.
5.2. Implementation of Changes. If Tenant: (i) approves in writing the
cost or savings and the estimated extension in the time for completion of
Landlord's Work, if any, and (ii) deposits with Landlord any Excess Building
Costs required in connection with any Change, Landlord shall cause the approved
Change to be instituted. Notwithstanding any approval or disapproval by Tenant
of any estimate of the delay caused by such proposed Change, the appropriate
Architect's determination of the amount of Tenant Caused Delay in connection
with such Change shall be final and binding on Landlord and Tenant.
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 9
6. Costs.
-----
6.1. Budget for Landlord's Work. Before commencing Landlord's Work,
Landlord prepared or obtained a detailed budget (the "BUDGET"), by trade, of the
costs incurred or that will be incurred in connection with the design,
permitting, and construction of Landlord's Work (the "BUILDING COSTS"). The
Budget is based upon the Building Construction Drawings and includes a payment
to Landlord of administrative rent ("ADMINISTRATIVE RENT") equal to 2.50% of the
Building Costs for administering, monitoring, and inspecting Landlord's Work,
which sum shall be payable from the Building Fund. Such Administrative Rent
shall include, without limitation, all out-of-pocket costs, expenses, and fees
incurred by or on behalf of Landlord arising from, out of, or in connection
with, such administration, monitoring, and inspection of Landlord's Work.
Landlord shall have the right (but not the obligation) to engage a project or
development manager to assist in performing such administration, monitoring, and
inspection of Landlord's Work and any payments to any such manager (excluding
payments for any services performed by such manager at Tenant's direct request
or direction) shall be payable from Administrative Rent.
6.2. Excess Line Item Costs. If at any time and from time-to-time
Landlord reasonably determines that the actual cost of certain services or
materials required for Landlord's Work will exceed the line item in the Budget
for such services or materials, Landlord shall give Notice to Tenant of same and
Tenant thereafter either shall approve or disapprove the excess line item cost
within 5 business days after Landlord's Notice. If Tenant approves the excess
line item cost, Landlord shall proceed with Landlord's Work and the excess line
item cost will be included in "BASE CONSTRUCTION COSTS" (as defined in Section
3(a) of the Lease). If Tenant disapproves the excess line item cost, Landlord
and Tenant shall reasonably and in good faith seek means by which to mitigate or
eliminate such excess line item cost. Any excess line item cost not approved by
Tenant shall not be included in Base Construction Costs.
6.3. Building Allowance. Landlord shall provide to Tenant a building
allowance ("BUILDING ALLOWANCE") of not more than $153.25 (in increments of
$10.00) per rentable square foot of the Building, provided that under no
circumstances (including an increase in the rentable square footage of the
Building) shall the aggregate amount of the Building Allowance exceed
$8,350,000.00. Within 3 business days after the execution of this Work Letter,
Tenant shall give Landlord Notice of how much of the Building Allowance Tenant
has elected to receive from Landlord. Such election shall be final and binding
on Tenant, and may not thereafter be modified without Landlord's consent, which
may be granted or withheld in Landlord's sole and absolute discretion. If the
Budget for Landlord's Work is greater than the Building Allowance, Tenant, as a
condition precedent to Landlord's obligation to complete Landlord's Work, shall
deposit with Landlord the difference, in cash, within 3 business days after
Landlord gives Notice to Tenant demanding the same. Any such deposit shall be
disbursed by Landlord to pay Building Costs.
6.4. Costs Includable in Building Allowance. The Building Allowance
shall be used solely for the payment of design, permitting, and construction
costs in connection with Landlord's Work, including, without limitation, the
cost of preparing the Building Design Program, the Building Schematic Plans, the
Building Design Development Plans, and the Building Construction Drawings, all
costs set forth in the Budget, including Administrative Rent and Landlord's out-
of-pocket expenses and other costs resulting from Tenant Caused Delays and the
cost of Changes, to the extent of the Building Allowance. The items that may be
paid for using the Building Allowance include, without limitation, the shell and
core of the Building, the site improvements appurtenant to the Building, HVAC
systems, utility distribution systems,
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 10
laboratory benches and casework, and hazardous waste containment equipment.
Notwithstanding anything to the contrary contained herein, the Building
Allowance shall not be used to pay for trade fixtures, emergency generators or
related emergency power equipment, furniture, personal property, or other non-
building system materials or equipment, including, but not be limited to,
biological safety cabinets and other scientific equipment not incorporated into
the Building.
6.5. Excess Building Costs. It is understood and agreed that Landlord
is under no obligation to bear any portion of the cost of any of Landlord's Work
except to the extent of the Building Allowance (as adjusted). Notwithstanding
Section 6.2 above, if at any time and from time-to-time Landlord reasonably
determines that the remaining Building Costs under the Budget exceed the
remaining unexpended Building Allowance, Landlord shall give Notice to Tenant of
same and Tenant thereafter shall deposit with Landlord, as a condition precedent
to Landlord's obligation to complete Landlord's Work, 100% of the then current
Building Costs in excess of the remaining Building Allowance ("EXCESS BUILDING
COSTS"). If Tenant fails to deposit with Landlord, or deposits with Landlord
after the date demanded in Landlord's Notice (which shall not be less than 5
business days after Landlord's Notice), the amount of any Excess Building Costs,
Landlord may suspend Landlord's Work until the required deposit has been made
and shall have all of the rights and remedies set forth in the Lease for
nonpayment of Rent (including, but not limited to, the right to interest at the
Default Rate and the right to assess a late charge), and for purposes of any
litigation instituted with regard to such amounts the same will be considered
Rent. Such deposits of Excess Building Costs, together with the Building
Allowance (as adjusted) and any funds deposited by Tenant pursuant to Section
6.3 above, are herein referred to as the "BUILDING FUND". Funds so deposited by
Tenant shall be the first thereafter disbursed to pay Building Costs.
Notwithstanding anything to the contrary set forth in this Section, Tenant shall
be fully and solely liable for Building Costs and the cost of Minor Variations
in excess of the Building Allowance (except as may be provided otherwise in
Section 6.2 above). If upon Substantial Completion of Landlord's Work and the
payment of all sums due in connection therewith there remains any undisbursed
Building Allowance, Tenant shall be entitled to such undisbursed Building
Allowance solely to the extent of any deposits of Excess Building Costs that
Tenant has actually made with Landlord.
7. Tenant Access.
-------------
7.1. Tenant's Access Rights. Landlord hereby agrees to permit Tenant
access to the Building, at Tenant's sole risk and expense, (i) 30 days prior to
the Commencement Date to perform any work ("TENANT'S WORK") required by Tenant
other than Landlord's Work (including, as examples only, installation of
telephones, cables, and, to the extent reasonably practical, trade fixtures and
furniture), provided that such Tenant's Work is coordinated with the TI
Architect and the TI Contractor and complies with the Lease and all other
reasonable restrictions and conditions Landlord may impose, and (ii) prior to
the completion of Landlord's Work, to inspect and observe work in process; all
such access shall be during normal business hours or at such other times as are
reasonably designated by Landlord. Notwithstanding the foregoing, Tenant shall
have no right to enter onto the Premises or the Building unless and until Tenant
shall deliver to Landlord evidence reasonably satisfactory to Landlord
demonstrating that any insurance reasonably required by Landlord in connection
with such pre-commencement access (including, but not limited to, any insurance
that Landlord may require pursuant to the Lease) is in full force and effect.
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 11
7.2. No Interference. Neither Tenant nor its employees, consultants,
agents, contractors, and suppliers shall interfere with the performance of
Landlord's Work, nor with any inspections or issuance of final approvals by
Durham County, North Carolina, or the City of Durham, and upon any such
interference, Landlord shall have the right to exclude Tenant and Tenant's
employees, consultants, agents, contractors, and suppliers from the Premises and
the Building until Substantial Completion of Landlord's Work.
7.3. No Acceptance of Premises. So long as Tenant engages only in the
activities enumerated in Section 7.1, the fact that Tenant, with Landlord's
consent, may enter the Building prior to the date Landlord's Work is
Substantially Complete shall not be deemed an acceptance by Tenant of possession
of the Premises, but in such event Tenant shall indemnify and hold Landlord
harmless from any loss of or damage to Tenant property, completed work,
fixtures, equipment, materials or merchandise, and from liability for death of,
or injury to, any person, caused by the willful misconduct or negligence of
Tenant or its agents.
8. Notification of Delays. Not less than once each calendar month beginning
in April, 2000, and continuing through the Commencement Date, Landlord shall
deliver to Tenant written notification of the number of days during the
immediately preceding calendar month Landlord's performance under this Work
Letter or the Lease was delayed as a result of Tenant Caused Delays or Force
Majeure Delays, which written notification shall also include a description of
the nature of such Tenant Caused Delay or Force Majeure Delay.
9. Miscellaneous
-------------
9.1. Consents. Whenever consent or approval of either party is
required under this Work Letter, that party shall not unreasonably withhold,
condition, or delay such consent or approval, except as may be expressly set
forth herein to the contrary. Notwithstanding the foregoing, and regardless of
any standard that may be applicable to any consent or approval rights given to
Landlord hereunder, Landlord shall be justified in withholding, and shall not
incur any liability for so withholding, any consent or approval to any action,
document, or matter that Landlord determines, in its sole and absolute
discretion, will or might adversely affect Landlord's status as a "real estate
investment trust".
9.2. Modification. No modification, waiver, or amendment of this Work
Letter or of any of its conditions or provisions shall be binding upon Landlord
or Tenant unless in writing signed by Landlord and Tenant.
9.3. Counterparts. This Work Letter may be executed in any number of
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute a single agreement with the same effect as if all
parties had signed the same signature page. Any signature page from any
counterpart of this Work Letter, signed only by one party, may be detached from
such counterpart and re-attached to any other counterpart of this Work Letter
that has a signature page signed only by the other party.
9.4. Governing Law. This Work Letter shall be governed by, construed
and enforced in accordance with the internal laws of the state in which the
Premises are located, without regard to choice of law principles of such State.
9.5. Time of the Essence. Time is of the essence of this Work Letter
and of each and all provisions thereof.
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 12
9.6. Severability. If any term or provision of this Work Letter is
declared invalid or unenforceable, the remainder of this Work Letter shall not
be affected by such determination and shall continue to be valid and
enforceable.
9.7. Merger. All understandings and agreements, oral or written,
heretofore made between the parties hereto and relating to Landlord's Work are
merged in this Work Letter, which alone (but inclusive of provisions of the
Lease incorporated herein and the final approved constructions drawings and
specifications prepared pursuant hereto) fully and completely expresses the
agreement between Landlord and Tenant with regard to the matters set forth in
this Work Letter.
9.8. 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 Work Letter or any schedules 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 Work Letter are for convenience only and in no way define,
limit or otherwise describe the scope or intent of this Work Letter, or any
provision hereof, or in any way affect the interpretation of this Work Letter.
9.9. Attorneys Fees. If either Landlord or Tenant reasonably seeks
legal services with respect to the proper interpretation or enforcement of this
Work Letter, the party receiving substantially the result it sought or defended
(the "PREVAILING PARTY"), whether by award, judgment, stipulation, settlement,
workout, default, or otherwise and whether or not any legal action may have been
instituted or instituted and then voluntarily dismissed, shall be entitled to
recover from the adverse party all reasonable fees and costs incurred by the
Prevailing Party in connection with such legal services ("LEGAL FEES"). Legal
Fees include, without limitation, (i) fees, costs, and expenses of any
engineers, accountants, appraisers, consultants, brokers, and other
professionals or experts retained or consulted by the Prevailing Party, and
other costs and expenses of investigation or analysis incurred by the Prevailing
Party in support of its position, and (ii) all such fees, costs, and expenses
incurred in any aspect of the legal process, whether out-of-court negotiations,
mediation, arbitration, commencement of suit, discovery, law and motion, trial,
appellate proceedings, or any action or participation in, or in connection with,
any case or proceeding under Chapter 7, 11, or 13 of the Bankruptcy Code, 11
U.S.C. Section 101 et seq., or any successor statutes.
9.10. No Third Party Benefits. Landlord and Tenant do not intend by
any provision of this Work Letter to confer any right, remedy, or benefit upon
any third party, and no third party shall be entitled to enforce, or otherwise
shall acquire any right, remedy, or benefit by reason of, any provision of this
Work Letter.
9.11. No Waiver; Remedies Cumulative. No purported waiver of any
provision of this Work Letter shall be binding unless such waiver is in writing
and signed by the party to be bound. In addition, no waiver of any provision of
this Work Letter shall be deemed, or shall constitute, a waiver of any other
provision of this Work Letter, whether or not similar, nor shall any waiver
constitute a continuing waiver. Further, no failure to exercise and no delay in
exercising any power, right, remedy, or privilege under this Work Letter shall
impair such power, right, remedy, or privilege or shall be deemed, or shall
constitute, a waiver of any default under this Work Letter or acquiescence
therein, nor shall any single or partial exercise of any such power, right,
remedy, or privilege preclude any other or further exercise thereof or of any
other power, right, remedy, or privilege. Finally, all powers, rights, remedies,
and privileges existing
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 13
under this Work Letter are cumulative, in addition to, and not exclusive of any
other powers, rights, remedies, or privileges otherwise available to the parties
to this Work Letter.
9.12. Incorporation by Reference. All schedules attached hereto are
hereby incorporated into this Lease and made a part hereof. If there is any
conflict between such schedules and the terms of this Work Letter, such
schedules shall control.
9.13. Entire Agreement. This Work Letter is made as a part of and
pursuant to the Lease and, together with the Lease, constitutes the entire
agreement of the parties with respect to the subject matter hereof. This Work
Letter is subject to all of the terms and limitation set forth in the Lease, and
neither party shall have any rights or remedies under this Work Letter separate
and apart from their respective remedies pursuant to the Lease.
[ SIGNATURES ON NEXT PAGE ]
Amended and Restated Work Letter 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 14
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amended and
Restated Work Letter to be effective on the date first above written.
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By:
-------------------------------
Xxxx X. Xxxxx
CEO and President
Execution Date:
---------------
ATTEST: _____________________
Its __________________ Secretary
[CORPORATE SEAL]
LANDLORD:
ARE-104 ALEXANDER ROAD, LLC, (SEAL)
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., (SEAL)
a Delaware limited partnership, managing member
By: ARE-QRS CORP., (SEAL)
a Maryland corporation, general partner
By: _______________________________________
Print Name: _______________________________
Print Title: ______________________________
Execution Date: ___________________________
ATTEST: _____________________
Its __________________ Secretary
[CORPORATE SEAL]
Schedule A to Amended and Restated Work Letter
[PHASE 1A: OFFICE / LABORATORY]
DEVELOPMENT SCHEDULE
--------------------
Event Date
----------------------------------------------------- --------------
Final approval of Building
Design Program pursuant to Section 2.3 Done; 08/25/99
Final approval of Building Construction
Drawings pursuant to Section 2.6 Done; 01/21/00
Issuance of Base Building Permit Done; 11/11/99
Commencement of
construction of Base Building Work Done; 11/15/99
Issuance of TI Permit 04/01/00
Commencement of
construction of Tenant Improvements 04/01/00
Substantial Completion of Landlord's Work 09/11/00
Issuance of Temporary Certificate of Occupancy 09/11/00
Schedule B to Amended and Restated Work Letter
[PHASE 1A: OFFICE / LABORATORY]
BASE BUILDING WORK
------------------
===============================================================================
Description of Base Building Work - Shell and Core*
. Concrete Foundations and Floors
. Structural/Steel Frame
. Exterior Walls/Facade/Windows
. Exterior Doors
. Exterior Painting
. Roofing/Fireproofing/Caulking and Sealant
. Roof Hatch
. Shell and Core Mechanical/Plumbing
(Includes roof drains, hose bibs, main service backflow preventer, garage
exhaust (if req'd by Code))
. Shell and Core Electrical
(Main electrical switchgear req'd by Code to service shell only, incl. req'd
life safety improvements)
. Shell and Core Fire Sprinklers
(Fire riser to shell for Ordinary Group 2 fire system)
. Loading Area/Dock Bumpers
. Exit Stairs
(As req'd by Code)
. Related Shell Architectural/Engineering Fees; Building Permit and Inspection
Fees
. Builder's Risk Insurance Premiums
===============================================================================
Description of Base Building Work - Site Improvements *
. Finished Grading
. Finished Landscape and Hardscape Features
. Irrigation Systems
. Surface Parking and Striping
(Parking provided at or near a ratio of 3 spaces per 1,000 rentable sq. ft.,
or as req'd by Code)
. Exterior Lighting
(Parking and landscaped areas)
. Trash Enclosure
. Utilities Stubbed to the Building
(Sewer, water, natural gas, and electricity)
. Fire Hydrants
. ADA Access and Other Improvements Required by Code
. Concrete Pad for Tenant's Emergency Generator
. Monument Signage
(Tenant responsible for its lettering and graphics)
* All materials and labor shall comply with Code and be "industry standard" for
the Sub-Market
EXHIBIT D
COMMENCEMENT DATE; TERM
-----------------------
This Acknowledgment, dated _______________, 2000, is given by ARE-104
ALEXANDER ROAD, LLC, a Delaware limited liability company ("LANDLORD"), and
PARADIGM GENETICS, INC., a Delaware corporation (formerly a North Carolina
corporation) ("TENANT"), and is attached to and made a part of the Amended and
Restated Lease Agreement [Phase 1A: Office / Laboratory] executed as of April
___, 2000, and effective as of July 27, 1999 (the "LEASE"), between Landlord and
Tenant. Any initially capitalized terms used but not defined herein shall have
the meanings given them in the Lease.
Tenant and Landlord hereby acknowledge and agree that, for all purposes
related to the Lease, the "COMMENCEMENT DATE" shall be _______________, 2000,
and the initial "TERM" shall expire on _______________, 2010.
IN WITNESS WHEREOF, Tenant and Landlord have executed this Acknowledgment
as of the date first above written.
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By: __________________________________________
Its: _________________________________________
LANDLORD:
ARE-104 ALEXANDER ROAD, LLC, (SEAL)
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., (SEAL)
a Delaware limited partnership, managing member
By: ARE-QRS CORP., (SEAL)
a Maryland corporation, general partner
By: ___________________________________
Its: __________________________________
EXHIBIT E
BASE CONSTRUCTION COSTS; BUILDING ALLOWANCE; BASE RENT
------------------------------------------------------
This Acknowledgment, dated _______________, 2000, is given by ARE-104
ALEXANDER ROAD, LLC, a Delaware limited liability company ("LANDLORD"), and
PARADIGM GENETICS, INC., a Delaware corporation (formerly a North Carolina
corporation) ("TENANT"), and is attached to and made a part of the Amended and
Restated Lease Agreement [Phase 1A: Office / Laboratory] executed as of April
___, 2000, and effective as of July 27, 1999 (the "LEASE"), between Landlord and
Tenant. Any initially capitalized terms used but not defined herein shall have
the meanings given them in the Lease.
Tenant and Landlord hereby acknowledge and agree that, for all purposes
related to the Lease, the aggregate "BASE CONSTRUCTION COSTS" shall be
$__________, the aggregate "BUILDING ALLOWANCE" actually disbursed to or for the
benefit of Tenant shall be $__________, and the initial monthly "BASE RENT"
shall be $__________.
IN WITNESS WHEREOF, Tenant and Landlord have executed this Acknowledgment
as of the date first above written.
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By: _____________________________________________
Its: ____________________________________________
LANDLORD:
ARE-104 ALEXANDER ROAD, LLC, (SEAL)
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., (SEAL)
a Delaware limited partnership, managing member
By: ARE-QRS CORP., (SEAL)
a Maryland corporation, general partner
By: ___________________________________
Its: __________________________________
EXHIBIT F
GROUND LEASE RENT
-----------------
This Acknowledgment, dated _______________, 2000, is given by ARE-104
ALEXANDER ROAD, LLC, a Delaware limited liability company ("LANDLORD"), and
PARADIGM GENETICS, INC., a Delaware corporation (formerly a North Carolina
corporation) ("TENANT"), and is attached to and made a part of the Amended and
Restated Lease Agreement [Phase 1A: Office / Laboratory] executed as of April
___, 2000, and effective as of July 27, 1999 (the "LEASE"), between Landlord and
Tenant. Any initially capitalized terms used but not defined herein shall have
the meanings given them in the Lease.
Tenant and Landlord hereby acknowledge and agree that, for all purposes
related to the Lease, the initial annual "GROUND LEASE RENT" shall be
$__________.
IN WITNESS WHEREOF, Tenant and Landlord have executed this Acknowledgment
as of the date first above written.
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By: ____________________________________________
Its: ___________________________________________
LANDLORD:
ARE-104 ALEXANDER ROAD, LLC, (SEAL)
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., (SEAL)
a Delaware limited partnership, managing member
By: ARE-QRS CORP., (SEAL)
a Maryland corporation, general partner
By: __________________________________
Its: _________________________________
EXHIBIT G
ORIGINAL SECURITY AMOUNT
------------------------
This Acknowledgment, dated _______________, 2000, is given by ARE-104
ALEXANDER ROAD, LLC, a Delaware limited liability company ("LANDLORD"), and
PARADIGM GENETICS, INC., a Delaware corporation (formerly a North Carolina
corporation) ("TENANT"), and is attached to and made a part of the Amended and
Restated Lease Agreement [Phase 1A: Office / Laboratory] executed as of April
___, 2000, and effective as of July 27, 1999 (the "LEASE"), between Landlord and
Tenant. Any initially capitalized terms used but not defined herein shall have
the meanings given them in the Lease.
Tenant and Landlord hereby acknowledge and agree that, for all purposes
related to the Lease, the "ORIGINAL SECURITY AMOUNT" shall be $__________.
IN WITNESS WHEREOF, Tenant and Landlord have executed this Acknowledgment
as of the date first above written.
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By: ________________________________________________
Its: _______________________________________________
LANDLORD:
ARE-104 ALEXANDER ROAD, LLC, (SEAL)
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., (SEAL)
a Delaware limited partnership, managing member
By: ARE-QRS CORP., (SEAL)
a Maryland corporation, general partner
By: ______________________________________
Its: _____________________________________
EXHIBIT H
RULES AND REGULATIONS
---------------------
(a) The sidewalk, entries, and driveways of the Project shall not be
obstructed by Tenant, or its agents, or used by them for any purpose other than
ingress and egress to and from the Premises.
(b) Tenant shall not place any objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped areas or other areas outside
of its Premises, or on the roof of the Project.
(c) No animals shall be allowed in the offices, halls, or corridors in the
Project, except for seeing-eye dogs and any other animals that may be reasonably
necessary to the Permitted Use.
(d) Tenant shall not disturb the occupants of the Project or adjoining
buildings by the use of any radio or musical instrument or by the making of loud
or improper noises.
(e) If Tenant desires telegraphic, telephonic or other electric connections
in the Premises, Landlord or its agent will direct the electrician as to where
and how the wires may be introduced; and, without such direction, no boring or
cutting of wires will be permitted. Any such installation or connection shall be
made at Tenant's expense.
(f) Tenant shall not install or operate any steam or gas engine or boiler,
or other mechanical apparatus in the Premises, except as specifically approved
in the Lease. The use of oil, gas or inflammable liquids for heating, lighting
or any other purpose is expressly prohibited. Explosives or other articles
deemed extra hazardous shall not be brought into the Project.
(g) Parking any type of recreational vehicles is specifically prohibited on
or about the Project. Except for the overnight parking of operative vehicles, no
vehicle of any type shall be stored in the parking areas at any time. In the
event that a vehicle is disabled, it shall be removed within 48 hours. There
shall be no "For Sale" or other advertising signs on or about any parked
vehicle. All vehicles shall be parked in the designated parking areas in
conformity with all signs and other markings. All parking will be open parking,
and no reserved parking, numbering or lettering of individual spaces will be
permitted except as specified by Landlord.
(h) Tenant shall maintain the Premises free from rodents, insects and other
pests.
(i) Landlord reserves the right to exclude or expel from the Project any
person who, in the judgment of Landlord, is intoxicated or under the influence
of liquor or drugs or who shall in any manner do any act in violation of the
Rules and Regulations of the Project.
(j) Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and cleanliness.
Landlord shall not be responsible to Tenant for any loss of property on the
Premises, however occurring, or for any damage done to the effects of Tenant by
the janitors or any other employee or person.
Rules and Regulations 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 2
(k) Tenant shall give Landlord prompt Notice of any defects in the water,
lawn sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, or any other service equipment affecting the Premises.
(l) Tenant shall not permit storage outside the Premises, including without
limitation, outside storage of trucks and other vehicles, or dumping of waste or
refuse or permit any harmful materials to be placed in any drainage system or
sanitary system in or about the Premises.
(m) All moveable trash receptacles provided by the trash disposal firm for
the Premises must be kept in the trash enclosure areas, if any, provided for
that purpose.
(n) No auction, public or private, will be permitted on the Premises or the
Project.
(o) No awnings shall be placed over the windows in the Premises except with
the prior written consent of Landlord.
(p) The Premises shall not be used for lodging, sleeping, or cooking
(except to the extent contemplated in the plans and specifications for the
Premises approved by Landlord) or for any immoral or illegal purposes or for any
purpose other than that specified in the Lease. No gaming devices shall be
operated in the Premises.
(q) Tenant shall ascertain from Landlord the maximum amount of electrical
current that can safely be used in the Premises, taking into account the
capacity of the electrical wiring in the Project and the Premises and the needs
of other tenants, and shall not use more than such safe capacity. Landlord's
consent to the installation of electric equipment shall not relieve Tenant from
the obligation not to use more electricity than such safe capacity.
(r) Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's ordinary use of
the Premises and shall keep all such machinery free of vibration, noise and air
waves which may be transmitted beyond the Premises.
EXHIBIT I
TENANT'S PERSONAL PROPERTY
--------------------------
Emergency diesel generator(s)
De-ionized water system pumps, tanks, and fixtures [point of use systems only]
Nitrogen gas system manifolds and LN2 storage tanks
Uninterruptable Power Supply [UPS] with battery array
Computer Disk arrays and support equipment
Modular Plant Growth Rooms
Modular (0-56C) environmental rooms
Autoclaves with internal steam supply [stand alone, movable, and not built in
only]
Glassware washer and dryer [stand alone, movable, and not built in only]
All incubators
All biological safety cabinets [non-ducted]
All laminar flow hoods [non-ducted]
Non-HVAC monitoring and control systems
Non-sprinkler Fire Suppression Systems
All Telephone-LAN-Video Communications Systems
Chemical spray booth
Soil handling equipment
Air compressor
Benches, racks, and canopies [stand alone, movable, and not built in only]
EXHIBIT J
ESTOPPEL CERTIFICATE
--------------------
This TENANT ESTOPPEL CERTIFICATE ("CERTIFICATE"), dated as of
_______________, _____, is executed by PARADIGM GENETICS, INC., a Delaware
corporation ("TENANT"), in favor of ________________________________________, a
_________________________, together with its nominees, designees and assigns
(collectively, "BUYER"), and in favor of
________________________________________, a _________________________, together
with its nominees, designees and assigns (collectively, "LENDER").
RECITALS
--------
A. Buyer and ARE-104 ALEXANDER ROAD, LLC, a Delaware limited liability
company ("LANDLORD"), have entered into that certain Purchase and Sale Agreement
and Joint Escrow Instructions, dated as of __________, _____ (the "PURCHASE
AGREEMENT"), whereby Buyer has agreed to purchase, among other things,
Landlord's interests in the improved real property located in the City of
Durham, County of Durham, State of North Carolina, more particularly described
on Exhibit A attached to the Purchase Agreement (the "PROPERTY").
B. Tenant and Landlord have entered into that certain Amended and Restated
Lease Agreement [Phase 1A: Office / Laboratory] executed as of April ___, 2000,
and effective as of July 27, 1999 (together with all amendments, modifications,
supplements, guarantees and restatements thereof, the "LEASE"), for a portion of
the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the request of
Landlord, Tenant would execute and deliver an estoppel certificate certifying
the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has requested that
Tenant execute this Certificate with an understanding that Lender will rely on
the representations and agreements below in granting to Buyer a loan.
NOW, THEREFORE, Tenant certifies, warrants, and represents to Buyer and
Lender as follows:
SECTION 1. LEASE.
Attached hereto as Exhibit B is a true, correct and complete copy of the
Lease, including the following amendments, modifications, supplements,
guarantees and restatements thereof, which together represent all of the
amendments, modifications, supplements, guarantees and restatements thereof:
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(If none, please state "None.")
Estoppel Certificate 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 2
SECTION 2. LEASED PREMISES.
Pursuant to the Lease, Tenant leases those certain premises (the "LEASED
PREMISES") consisting of approximately _______________ rentable square feet
within the Property, as more particularly described in the Lease. In addition,
pursuant to the terms of the Lease, Tenant has the [non-exclusive] right to use
[_____ parking spaces/the parking area] located on the Property during the term
of the Lease. [Please cross-out the preceding sentence or portions thereof if
inapplicable.]
SECTION 3. FULL FORCE OF LEASE.
The Lease has been duly authorized, executed and delivered by Tenant, is in
full force and effect, has not been terminated, and constitutes a legally valid
instrument, binding and enforceable against Tenant in accordance with its terms,
subject only to applicable limitations imposed by laws relating to bankruptcy
and creditor's rights.
SECTION 4. COMPLETE AGREEMENT.
The Lease constitutes the complete agreement between Landlord and Tenant
for the Leased Premises and the Property, and except as modified by the Lease
amendments noted above (if any), has not been modified, altered or amended.
SECTION 5. ACCEPTANCE OF LEASED PREMISES.
Tenant has accepted possession and is currently occupying the Leased
Premises.
SECTION 6. LEASE TERM.
The term of the Lease commenced on __________, _____, and ends on
__________, _____, subject to the following options to extend:
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(If none, please state "None.")
SECTION 7. PURCHASE RIGHTS.
Tenant has no option, right of first refusal, right of first offer, or
other right to acquire or purchase all or any portion of the Leased Premises or
all or any portion of, or interest in, the Property, except as follows:
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(If none, please state "None.")
SECTION 8. RIGHTS OF TENANT.
Except as expressly stated in this Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
Estoppel Certificate 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 3
(b) has no option or other right to purchase all or any part of the
Leased Premises or all or any part of the Property;
(c) has no right, title, or interest in the Leased Premises, other
than as Tenant under the Lease.
SECTION 9. RENT.
(a) The obligation to pay rent under the Lease commenced on
__________. The rent under the Lease is current, and Tenant is not in default in
the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in the amount
of $__________ per month. Tenant has not received and is not presently entitled
to any abatement, refunds, rebates, concessions or forgiveness of base rent or
other charges, free rent, partial rent, or credits, offsets or reductions in
base rent, except as follows:
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-------------------------------------------------------------------------------
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(If none, please state "None.")
(c) Tenant is currently paying ground lease rent under the Lease in
the amount of $__________ per month. Tenant has not received and is not
presently entitled to any abatement, refunds, rebates, concessions or
forgiveness of ground lease rent or other charges, free rent, partial rent, or
credits, offsets or reductions in ground lease rent, except as follows:
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(If none, please state "None.")
(d) Tenant is currently paying building improvement rent under the
Lease in the amount of $__________ per month. Tenant has not received and is not
presently entitled to any abatement, refunds, rebates, concessions or
forgiveness of building improvement rent or other charges, free rent, partial
rent, or credits, offsets or reductions in building improvement rent, except as
follows:
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(If none, please state "None.")
(e) Tenant's estimated share of operating expenses, common area
charges, insurance, real estate taxes and administrative and overhead expenses
is _____% and is currently being paid at the rate of $__________ per month,
payable to: _______________________________________________________; there
currently are no existing defenses or offsets against rent due or to become due
under the terms of the Lease, and, to the best of Tenant's knowledge, there
currently is no default or other wrongful act or omission by Landlord under the
Lease or otherwise in connection with
Estoppel Certificate 000 Xxxxxxxxx Xxx.,
XXX/Xxxxxxxx Genetics, Inc. - Page 4
Tenant's occupancy of the Leased Premises, nor is there a state of facts that,
with the passage of time or the giving of notice or both, could ripen into a
default on the part of Tenant, or to the best knowledge of Tenant, could ripen
into a default on the part of Landlord under the Lease, except as follows:
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(If none, please state "None.")
SECTION 10. SECURITY DEPOSIT.
The amount of Tenant's security deposit held by Landlord under the Lease is
$__________.
SECTION 11. PREPAID RENT.
The amount of prepaid rent, separate from the security deposit, is
$__________, covering the period from __________, _____ to __________, _____.
SECTION 12. INSURANCE.
All insurance, if any, that Tenant is required to maintain under the Lease
is presently in effect.
SECTION 13. PENDING ACTIONS.
There is not pending or, to the knowledge of Tenant, threatened against or
contemplated by the Tenant, any petition in bankruptcy, whether voluntary or
otherwise, any assignment for the benefit of creditors, or any petition seeking
reorganization or arrangement under the federal bankruptcy laws or those of any
state.
SECTION 14. LANDLORD'S PERFORMANCE.
As of the date of this Certificate, to the best of Tenant's knowledge,
Landlord has performed all obligations required of Landlord pursuant to the
Lease; no offsets, counterclaims, or defenses of Tenant under the Lease exist
against Landlord; and no events have occurred that, with the passage of time or
the giving of notice, would constitute a basis for offsets, counterclaims, or
defenses against Landlord, except as follows:
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(If none, please state "None.")
SECTION 15. ASSIGNMENTS BY LANDLORD.
Tenant has received no notice of any assignment, hypothecation or pledge of
the Lease or rentals under the Lease by Landlord. Tenant hereby consents to an
assignment of the Lease and rents to be executed by Landlord to Buyer or Lender
in connection with the Loan and acknowledges that said assignment does not
violate the provisions of the Lease. Tenant acknowledges that the interest of
the Landlord under the Lease is to be assigned to Buyer or
Estoppel Certificate 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 5
Lender solely as security for the purposes specified in said assignment and
Buyer or Lender shall have no duty, liability or obligation whatsoever under the
Lease or any extension or renewal thereof, either by virtue of said assignment
or by any subsequent receipt or collection of rents thereunder, unless Buyer or
Lender shall specifically undertake such liability in writing. Tenant agrees
that upon receipt of a written notice from Buyer or Lender of a default by
Landlord under the Loan, Tenant will thereafter pay rent to Buyer or Lender in
accordance with the terms of the Lease.
SECTION 16. ASSIGNMENTS BY TENANT.
Tenant has not sublet or assigned the Leased Premises or the Lease or any
portion thereof to any sublessee or assignee. No one except Tenant and its
employees will occupy the Leased Premises. The address for notices to be sent
to Tenant is as set forth in the Lease.
SECTION 17. ENVIRONMENTAL MATTERS.
The operation and use of the Leased Premises does not involve the
generation, treatment, storage, disposal or release into the environment of any
hazardous materials, regulated materials and/or solid waste, except those used
in the ordinary course of operating a scientific research and development
facility (including laboratory and related administrative space) or otherwise
used in accordance with all applicable laws.
SECTION 18. SUCCESSION OF INTEREST.
Tenant agrees that, in the event Buyer or Lender succeeds to the interest
of Landlord under the Lease:
(a) Buyer or Lender shall not be liable for any act or omission of any
prior landlord (including Landlord);
(b) Buyer or Lender shall not be liable for the return of any security
deposit;
(c) Buyer or Lender shall not be bound by any rent or additional rent
which Tenant might have prepaid under the Lease for more than the current month;
(d) Buyer or Lender shall not be bound by any amendments or
modifications of the Lease made without prior consent of Buyer or Lender;
(e) Buyer or Lender shall not be subject to any offsets or defenses
which Tenant might have against any prior landlord (including Landlord); or
(f) Buyer or Lender shall not be liable under the Lease to Tenant for
the performance of Landlord's obligations under the Lease beyond Buyer or
Lender's interest in the Property.
SECTION 19. NOTICE OF DEFAULT.
Tenant agrees to give Buyer and Lender a copy of any notice of default
under the Lease served upon Landlord at the same time as such notice is given to
Landlord. Tenant further agrees that if Landlord shall fail to cure such
default within the applicable grace period, if any, provided in the Lease, then
Buyer or Lender shall have an additional 30 days within which to cure such
default, or if such default cannot be cured within such 30-day period, such 30-
day
Estoppel Certificate 108 Alexander Ave.,
RTP/Paradigm Genetics, Inc. - Page 6
period shall be extended so long as Buyer or Lender has commenced and is
diligently pursuing the remedies necessary to cure such default (including, but
not limited to, commencement of foreclosure proceedings, if necessary to effect
such cure, in which event the Lease shall not be terminated while such remedies
are being pursued.
SECTION 20. NOTIFICATION BY TENANT.
From the date of this Certificate and continuing until __________, _____,
Tenant agrees to immediately notify Buyer and Lender, in writing by registered
or certified mail, return receipt requested, at the following addresses, on the
occurrence of any event or the discovery of any fact that would make any
representation contained in this Certificate inaccurate:
Estoppel Certificate 000 Xxxxxxxxx Xxx.,
XXX/Xxxxxxxx Genetics, Inc. - Page 7
If to Buyer: If to Lender:
____________________________________ ____________________________________
____________________________________ ____________________________________
____________________________________ ____________________________________
With a copy to: With a copy to:
____________________________________ ____________________________________
____________________________________ ____________________________________
____________________________________ ____________________________________
Tenant makes this Certificate with the knowledge that it will be relied
upon by Buyer in agreeing to purchase the Property and by Lender in agreeing to
provide financing for such purchase.
Tenant has executed this Certificate as of the date first written above by
the person named below, who is duly authorized to do so.
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By: ______________________________________
Its: _____________________________________
Exhibit A
LEGAL DESCRIPTION
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Exhibit B
COPY OF LEASE
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EXHIBIT K
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT is made and
entered into as of _______________, _____ ("AGREEMENT"), by and between ARE-104
ALEXANDER ROAD, LLC, a Delaware limited liability company, together with its
nominees, designees and assigns (collectively, "LANDLORD"), PARADIGM GENETICS,
INC., a Delaware corporation ("TENANT"), and _________________________, a
_________________________ ("MORTGAGEE").
WHEREAS, Mortgagee is making a loan to Landlord and others evidenced by a
certain promissory note ("NOTE"), and secured by, among other things, a deed of
trust/mortgage to be recorded prior hereto in the public records of the City of
Durham, County of Durham, State of North Carolina ("MORTGAGE") constituting a
lien upon the real property interests described in Exhibit A hereto (the "
PROPERTY"); and
WHEREAS, Landlord and Tenant have entered into an Amended and Restated
Lease Agreement [Phase 1A: Office / Laboratory] executed as of April ___, 2000,
and effective as of July 27, 1999 ("LEASE"), for certain leased premises located
in the Triangle Park Research Center in Research Triangle Park, Durham County,
North Carolina, containing or intended to contain a building with approximately
54,463 net rentable square feet (hereinafter referred to as "PREMISES"); and
WHEREAS, the Lease is subordinate to the Mortgage and to the right, title,
and interests of Mortgagee thereto and thereunder; and
WHEREAS, Mortgagee wishes to obtain from Tenant certain assurances that
Tenant will attorn to Mortgagee in the event of a foreclosure by Mortgagee or
the exercise of other rights under the Mortgage; and
WHEREAS, Tenant wishes to obtain from Mortgagee certain assurances that
Tenant's possession of the Premises will not, subject to the terms and
conditions of this Agreement, be disturbed by reason of a foreclosure of the
lien of the Mortgage on the Property; and
WHEREAS, Tenant and Mortgagee are both willing to provide such assurances
to each other upon and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the above, the mutual promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto mutually
agree as follows:
1. AFFIRMATION. Tenant hereby agrees that the Lease now is and shall be
subject and subordinate in all respects to the Mortgage and to all renewals,
modifications and extensions thereof until such time that the Mortgage is
released, satisfied or otherwise discharged, subject to the terms and conditions
of this Agreement. Landlord and Tenant hereby affirm that the Lease is in full
force and effect and that the Lease has not been modified or amended. Mortgagee
hereby confirms that it is the holder of the Note and the beneficiary of the
Mortgage and has full power and authority to enter into this Agreement.
Subordination Agreement [Loan] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 2
2. ATTORNMENT AND NON-DISTURBANCE.
------------------------------
(a) So long as Tenant is not in default under the Lease (beyond
Tenant's receipt of notice from Landlord and any grace period granted Tenant
under the Lease to cure such default) as would entitle the Landlord to terminate
the Lease or would cause without any further action of the Landlord, the
termination of the Lease or would entitle the Landlord to dispossess Tenant
thereunder, then Mortgagee agrees with Tenant that, in the event the interest of
Landlord shall be acquired by Mortgagee or in the event Mortgagee comes into
possession of or acquires title to the Property by reason of foreclosure or
foreclosure sale or the enforcement of the Mortgage or the Note or other
obligation secured thereby or by a conveyance in lieu thereof, or as a result of
any other means, then:
(i) Subject to the provisions of this Agreement, Tenant's
occupancy and possession of the Premises and Tenant's rights and privileges
under the Lease or any extensions, modifications or renewals thereof or
substitutions therefor (in accordance with the Lease and the Mortgage) shall not
be disturbed, diminished or interfered with by Mortgagee during the term of the
Lease (or any extensions or renewals thereof provided for in the Lease);
(ii) Mortgagee will not join Tenant as a party defendant in any
action or proceeding for the purpose of terminating Tenant's interest and estate
under the Lease because of any default under the Mortgage; and
(iii) The Lease shall continue in full force and effect and shall
not be except in accordance with the terms of the Lease.
(b) Tenant shall be bound to Mortgagee under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining (and any extensions or renewals thereof which may be effected in
accordance with any option contained in the Lease) with the same force and
effect as if Mortgagee were the landlord under the Lease, and Tenant does hereby
agree to attorn to Mortgagee as its landlord, said attornment to be effective
and self-operative without the execution of any other instruments on the part of
either party hereto immediately upon Mortgagee's succeeding to the interest of
Landlord under the Lease. Upon request of Lender or such Purchaser, Tenant shall
execute and deliver to Lender or such Purchaser an agreement reaffirming such
attornment. Tenant hereby agrees that any right of first refusal or right of
first offer to purchase the Property that Tenant may have pursuant to the terms
of the Lease (generally, a "PURCHASE RIGHT") shall not be applicable to, and
shall not block, prevent or delay, Mortgagee's or any Purchaser's acquisition of
the Property by foreclosure, deed in lieu of foreclosure, other transaction
related thereto or in substitution thereof, trustee sale, or other similar
statutory conveyance; provided, however, that any Purchase Right shall survive,
remain valid, and be exercisable by Tenant in accordance with the terms of the
Lease at any time after any such acquisition by Mortgagee or any Purchaser.
(c) In the event that the Mortgage is foreclosed and any party
("PURCHASER") other than Mortgagee purchases the Premises and succeeds to the
interest of Landlord under the Lease, Tenant shall likewise be bound to
Purchaser and Tenant hereby covenants and agrees to attorn to Purchaser in
accordance with all of the provisions of this Agreement; provided, however, that
Purchaser shall have transmitted to Tenant a written document in recordable
form, whereby Purchaser agrees to recognize Tenant as its lessee under the Lease
and agrees to be directly bound to Tenant for the performance and observance of
all the terms and conditions of the Lease required to be performed or observed
by Landlord thereunder, subject to and in accordance with the terms of this
Agreement.
Subordination Agreement [Loan] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 3
(d) Mortgagee agrees that if Mortgagee shall succeed to the interest
of Landlord under the Lease as above provided, Mortgagee shall be bound to
Tenant under all of the terms, covenants, and conditions of this Lease, and
Tenant shall, from and after Mortgagee's succession to the interest of Landlord
under the Lease, have the same remedies against Mortgagee that Tenant might have
had under the Lease against Landlord if Mortgagee had not succeeded to the
interest of Landlord; provided, however, that Mortgagee (and Purchaser, as the
case may be) shall not be:
(i) liable for any act or omission of any prior lessor (including
Landlord) occurring prior to the date that Mortgagee or Purchaser acquired title
to the Premises; provided, however, no inference shall be drawn from this clause
that Mortgagee or Purchaser would not be liable for the same or similar act or
omission occurring after the date that Mortgagee or Purchaser acquired title to
the Premises; or
(ii) subject to any offsets, counterclaims, or defenses that
Tenant might have solely against any prior lessor (including Landlord); or
(iii) bound by any previous payment of rent or additional rent
for a period greater than 1 month unless such prepayment shall have been
consented to in writing by Mortgagee; or
(iv) bound by any amendment or modification of the Lease made
after the date hereof without Mortgagee's written consent; or
(v) liable to Tenant for any loss of business or any other
indirect or consequential damages from whatever cause; provided, however, no
inference shall be drawn from this clause that Tenant would otherwise be
entitled (or not entitled) to recover for loss of business or any other indirect
or consequential damages; or
(vi) liable for the return of any security deposit unless such
deposit has been paid over to the Mortgagee.
The foregoing shall not be construed to modify or limit any right Tenant may
have at law or in equity against Landlord or any other prior owner of the
Property.
3. NOTICES. All notices required or permitted to be given pursuant to this
Agreement shall be in writing and shall be sent postage prepaid, by certified
mail, return receipt requested or other nationally utilized overnight delivery
service. All notices shall be deemed delivered when received or refused.
Rejection or other refusal to accept or inability to deliver because of changed
address of which no notice has been given shall constitute receipt of the
notice, demand or request sent. Any such notice if given to Tenant shall be
addressed as follows:
Paradigm Genetics, Inc.,
000 Xxxxxxxxx Xx., Xxxxxxxx 0
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxx
Chief Financial Officer
Subordination Agreement [Loan] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 4
if given to Landlord shall be addressed as follows:
Alexandria Real Estate Equities, Inc.
000 X. Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
if given to Mortgagee shall be addressed as follows:
_________________________________
_________________________________
_________________________________
_________________________________
_________________________________
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. The words "foreclosure" and "foreclosure sale" as used herein shall be
deemed to also include the acquisition of Landlord's estate in the Property by
voluntary deed, assignment or other conveyance or transfer in lieu of
foreclosure.
5. MODIFICATIONS TO LEASE. Tenant shall not modify or amend the Lease or
terminate the same without Mortgagee's prior written consent. If Mortgagee fails
to provide Tenant with a written approval of the proposed modification,
amendment or termination within 10 business days after notice to Mortgagee of
such proposal, then Mortgagee shall be deemed to have rejected such proposal.
6. ADDITIONAL AGREEMENTS. Tenant agrees that:
---------------------
(a) it shall give Mortgagee copies of all notices of default and
requests for approval or consent by Landlord that Tenant gives to Landlord
pursuant to the Lease in the same manner as they are given to Landlord and no
such notice or other communication shall be deemed to be effective until a copy
is given to Mortgagee;
(b) whenever any consent or approval by Landlord is required to be
obtained by Tenant or is requested by Tenant such consent or approval shall not
be effective until it is also confirmed by or obtained from Mortgagee, provided
that Mortgagee shall respond within 30 days after Mortgagee's receipt of
Tenant's request;
(c) in all provisions of the Lease where Landlord is indemnified, the
reference to Landlord as an indemnitee shall be deemed to include Mortgagee and
any Purchaser and such agreement of indemnification shall survive the repayment
of the loan secured by the Mortgage and, to the extent provided in the Lease,
the expiration or termination of the Lease;
(d) Tenant shall name Mortgagee and any Purchaser as additional insureds
and loss payees, as applicable and appropriate, on all insurance policies
required by the Lease; and
(e) this Agreement satisfies any condition or requirement in the Lease
relating to the granting of a non-disturbance agreement by Mortgagee, and in the
event that
Subordination Agreement [Loan] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 5
there are inconsistencies between the terms and provisions of this Agreement and
the terms and provisions of the Lease dealing with non-disturbance by Mortgagee,
the terms and provisions hereof shall be controlling; and
(f) Mortgagee shall have no liability under the Lease until Mortgagee
succeeds to the rights of the Landlord under the Lease, and then only during
such period as Mortgagee is the Landlord. At all times during which Mortgagee is
liable under the Lease, Mortgagee's liability shall be limited to Mortgagee's
interest in the Property.
7. MORTGAGEE CURE RIGHTS. If Landlord shall have failed to cure any default
within the time period provided for in the Lease (including any applicable
notice and grace periods), and thereafter Tenant exercises any right to
terminate the Lease, Mortgagee shall have an additional 30 days within which to
cure such default, or if such default cannot be cured by the payment of money or
reasonably requires more than 30 days to cure, then Mortgagee shall have such
additional time as may be reasonably necessary to complete such a cure
(including, if necessary, sufficient time to complete foreclosure proceedings)
provided that Mortgagee commences such cure within such 30-day period, Mortgagee
thereafter diligently prosecutes the same to completion, and Mortgagee completes
such cure no more than 60 days after the expiration of such 30-day period. The
Lease shall not be terminated (i) while such remedies are being diligently
pursued or (ii) based upon a default that is personal to Landlord and therefore
not susceptible to cure by Mortgagee or that requires possession of the Premises
to cure. Mortgagee shall in no event be obligated to cure any such default by
Landlord unless it forecloses. Nothing in this Section 7 shall affect any of
Tenant's termination rights under the Lease due to casualty or condemnation.
8. DIRECTION TO PAY. Landlord hereby directs Tenant and Tenant agrees to
make all payments of amounts owed by Tenant under the Lease directly to
Mortgagee from and after receipt by Tenant of notice from Mortgagee directing
Tenant to make such payments to Mortgagee. (As between Landlord and Mortgagee,
the foregoing provision shall not be construed to modify any rights of Landlord
under or any provisions of the Mortgage or any other instrument securing the
Note).
9. CONDITIONAL ASSIGNMENT. With reference to any assignment by Landlord of
Landlord's interest in the Lease, or the rents payable thereunder, conditional
in nature or otherwise, which assignment is made to Mortgagee, Tenant agrees
that the execution thereof by Landlord, and the acceptance thereof by Mortgagee
shall never be treated as an assumption by Mortgagee of any of the obligations
of Landlord under the Lease unless and until Mortgagee shall have succeeded to
the interest of Landlord. The foregoing sentence shall not affect any of
Tenant's rights against Landlord under the Lease.
[ SIGNATURES ON NEXT PAGE ]
Subordination Agreement [Loan] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
properly executed by their duly authorized representatives as of the date first
above written.
LANDLORD:
ARE-104 ALEXANDER ROAD, LLC, (SEAL)
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., (SEAL)
a Delaware limited partnership, managing member
By: ARE-QRS CORP., (SEAL)
a Maryland corporation, general partner
By: ___________________________
Its: __________________________
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By: _____________________________________
Its: ____________________________________
MORTGAGEE:
________________________________________,
a _______________________________________
By: _____________________________________
Its: ____________________________________
Exhibit A
Legal Description
-----------------
EXHIBIT L
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
This SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT is made and
entered into as of _______________, _____ ("AGREEMENT"), by and among ARE-104
ALEXANDER ROAD, LLC, a Delaware limited liability company, together with its
nominees, designees, and assigns (collectively, "LANDLORD"), PARADIGM GENETICS,
INC., a Delaware corporation ("TENANT"), and TRIANGLE SERVICE CENTER, INC., a
North Carolina corporation ("GROUND LESSOR").
WHEREAS, Landlord and Ground Lessor have entered into a Ground Lease
Agreement dated as of July 27, 1999, and have entered into or are entering into
a First Amendment to Ground Lease Agreement (collectively, the "GROUND LEASE")
pursuant to which Landlord has ground leased approximately 6.084 acres of land
more fully described in Exhibit A (the "SITE"); and
WHEREAS, Landlord and Tenant have entered into or are entering into an
Amended and Restated Lease Agreement [Phase 1A: Office / Laboratory] executed
as of April ___, 2000, and effective as of July 27, 1999 ("LEASE"), for certain
premises to be built on the Site containing or intended to contain a building
with approximately 54,463 net rentable square feet (hereinafter referred to as
"PREMISES"); and
WHEREAS, the Lease is intended to be subordinate to the Ground Lease and to
the right, title, and interests of Ground Lessor thereunder; and
WHEREAS, Ground Lessor wishes to obtain from Tenant certain assurances that
Tenant will attorn to Ground Lessor in the event Ground Lessor terminates the
Ground Lease or exercises other rights under the Ground Lease; and
WHEREAS, Tenant wishes to obtain from Ground Lessor certain assurances that
Tenant's possession of the Premises will not, subject to the terms and
conditions of this Agreement, be disturbed by reason of the termination of the
Ground Lease or the exercise of any other rights under the Ground Lease; and
WHEREAS, Tenant and Ground Lessor are willing to provide such assurances to
each other upon and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the above, the mutual promises
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto mutually
agree as follows:
1. AFFIRMATION. Tenant hereby agrees that the Lease now is and shall be
subject and subordinate in all respects to the Ground Lease and to all renewals,
modifications and extensions thereof, subject to the terms and conditions of
this Agreement. Landlord and Tenant hereby affirm that the Lease is in full
force and effect and that the Lease has not been modified or amended. Ground
Lessor hereby confirms that it is the holder of the ground
Subordination Agreement [Ground Lease] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 2
lessor's interest under the Ground Lease and has full power and authority to
enter into this Agreement.
2. ATTORNMENT AND NON-DISTURBANCE.
------------------------------
(a) So long as Tenant is not in default under the Lease (beyond Tenant's
receipt of notice from Landlord and any grace period granted Tenant under the
Lease to cure such default) as would entitle the Landlord to terminate the Lease
or would cause without any further action of the Landlord, the termination of
the Lease or would entitle the Landlord to dispossess Tenant thereunder, then
Ground Lessor agrees with Tenant that, in the event Ground Lessor terminates the
Ground Lease or exercises other rights under the Ground Lease that permit Ground
Lessor to acquire Landlord's interest under the Lease, then:
(i) Subject to the provisions of this Agreement, Tenant's occupancy
and possession of the Premises and Tenant's rights and privileges under the
Lease or any extensions, modifications or renewals thereof or substitutions
therefor (in accordance with the Lease and the Ground Lease) shall not be
disturbed, diminished or interfered with by Ground Lessor during the term of the
Lease (or any extensions or renewals thereof provided for in the Lease);
(ii) Ground Lessor will not join Tenant as a party defendant in any
action or proceeding for the purpose of terminating Tenant's interest and estate
under the Lease because of any default under the Ground Lease; and
(iii) The Lease shall continue in full force and effect and shall
not be terminated except in accordance with the terms of the Lease.
(b) Tenant shall be bound to Ground Lessor under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining (and any extensions or renewals thereof which may be effected in
accordance with any option contained in the Lease) with the same force and
effect as if Ground Lessor were the landlord under the Lease, and Tenant does
hereby agree to attorn to Ground Lessor as its landlord, said attornment to be
effective and self-operative without the execution of any other instruments on
the part of either party hereto immediately upon Ground Lessor's succeeding to
the interest of Landlord under the Lease. Upon the request of Ground Lessor,
Tenant shall execute and deliver to Ground Lessor an agreement reaffirming such
attornment. Tenant hereby agrees that any right of first refusal or right of
first offer to purchase Landlord's interest under the Ground Lease that Tenant
may have pursuant to the terms of the Lease (generally, a "PURCHASE RIGHT")
shall not be applicable to, and shall not block, prevent or delay, Ground
Lessor's acquisition of Landlord's interest under the Lease; provided, however,
that any Purchase Right shall survive, remain valid, and be exercisable by
Tenant in accordance with the terms of the Lease at any time after any such
acquisition by Ground Lessor.
(c) Ground Lessor agrees that if Ground Lessor shall succeed to the
interest of Landlord under the Lease as above provided, Ground Lessor shall be
bound to Tenant under all of the terms, covenants, and conditions of the Lease,
and Tenant shall, from and after Ground Lessor's succession to the interest of
Landlord under the Lease, have the same remedies against Ground Lessor that
Tenant might have had under the Lease against Landlord if Ground Lessor had not
succeeded to the interest of Landlord; provided, however, that Ground Lessor
shall not be:
Subordination Agreement [Ground Lease] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 3
(i) liable for any act or omission of any prior lessor (including
Landlord) occurring prior to the date that Ground Lessor succeeded to the
interest of Landlord under the Lease; provided, however, no inference shall be
drawn from this clause that Ground Lessor would not be liable for the same or
similar act or omission occurring after the date that Ground Lessor succeeded to
the interest of Landlord under the Lease; or
(ii) subject to any offsets, counterclaims or defenses that Tenant
might have solely against any prior lessor (including Landlord); or
(iii) bound by any previous payment of rent, however denominated,
for a period greater than 1 month unless such prepayment shall have been
consented to in writing by Ground Lessor; or
(iv) bound by any amendment or modification of the Lease made after
the date hereof without Ground Lessor's written consent; or
(v) liable to Tenant for any loss of business or any other indirect
or consequential damages from whatever cause; provided, however, no inference
shall be drawn from this clause that Tenant would otherwise be entitled (or not
entitled) to recover for loss of business or any other indirect or consequential
damages; or
(vi) liable for the return of any security deposit unless such
deposit has been paid over to the Ground Lessor.
The foregoing shall not be construed to modify or limit any right Tenant may
have at law or in equity against Landlord or any other prior owner of the
Property.
(d) Ground Lessor hereby acknowledges that Section 38(b) of the Lease
contains the following terms and conditions, and hereby agrees to accept
performance of the "GROUND LEASE OBLIGATIONS" (as defined therein) from Tenant,
and to permit Tenant to enforce the "GROUND LEASE RIGHTS" (as defined therein),
at the times and in the manner described therein:
Tenant shall be responsible for, and hereby covenants to satisfy in a
timely fashion, any and all obligations, covenants, responsibilities,
and/or indemnities binding on Landlord as holder of the ground lessee's
interest under the Ground Lease or as a party to the [Agreement Regarding
Allocation of Development Rights dated as of April ___, 2000 (the
"DEVELOPMENT RIGHTS AGREEMENT")] (collectively, the "GROUND LEASE
OBLIGATIONS"), including, without limitation, the payment of the annual
rent provided for in the Ground Lease (at the times and in the manner
specified in Section 3(b)(ii) [of the Lease]), the payment or reimbursement
of all expenses to be paid or reimbursed by Landlord under the Ground
Lease, the payment of the rent provided for in the Development Agreement,
and the payment or reimbursement of all expenses to be paid or reimbursed
by Landlord under the Development Rights Agreement; provided, however, that
the terms and conditions of this Lease shall control to the extent the
responsibility for satisfying any Ground Lease Obligation is expressly
conferred on Landlord and/or allocated between Landlord and Tenant herein.
For illustration purposes only, Sections 13 and 14 [of the Lease] allocate
between Landlord and Tenant all maintenance and repair obligations with
respect to the Premises and the Project and, therefore, such provisions
control.
Subordination Agreement [Ground Lease] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 4
If Tenant fails to satisfy, in a timely fashion, any of the Ground Lease
Obligations in the manner required hereunder, Landlord shall have the right
(but not the obligation) to satisfy the same, and any cost incurred by
Landlord in doing so shall be payable to Landlord on demand as Additional
Rent or includable by Landlord as an Operating Expense. Further, Tenant
shall indemnify, defend, hold, and save Landlord harmless from and against
any and all Claims arising out of or in connection with any such failure by
Tenant. Conversely, if Tenant gives Landlord Notice requesting Landlord to
take affirmative action to enforce any of Landlord's rights as ground
lessee under the Ground Lease or as a party to the Development Rights
Agreement or to enforce any obligation, covenant, responsibility, and/or
indemnity of the Ground Lessor under the Ground Lease and/or the
Development Rights Agreement (collectively, the "GROUND LEASE RIGHTS") and
Landlord elects not to do so, Tenant shall have the right, at Tenant's sole
cost and expense, to take affirmative action to enforce any such Ground
Lease Rights, and for such purpose Landlord, effective as of Landlord's
election not to take affirmative action, appoints Tenant attorney-in-fact
for Landlord (such power of attorney being coupled with an interest);
provided, however, that, notwithstanding the foregoing, the exercise of any
Ground Lease Rights that relate to Hazardous Materials (as provided in
Section 30(a) [of the Lease]) shall be subject to compliance with Section 3
of [a separate] Cost Sharing Agreement. Tenant shall indemnify, defend,
hold, and save Landlord harmless from and against any and all Claims
arising out of or in connection with any affirmative action taken by Tenant
to enforce any Ground Lease Rights. Tenant's rights and obligations under
this Section shall terminate and be of no further force or effect as of the
expiration or earlier termination of this Lease, provided that all
obligations that have arisen and/or become binding hereunder but have not
been fully satisfied as of the expiration or earlier termination of this
Lease shall survive such expiration or earlier termination.
3. NOTICES. All notices required or permitted to be given pursuant to this
Agreement shall be in writing and shall be sent postage prepaid, by certified
mail, return receipt requested or other nationally utilized overnight delivery
service. All notices shall be deemed delivered when received or refused.
Rejection or other refusal to accept or inability to deliver because of changed
address of which no notice has been given shall constitute receipt of the
notice, demand or request sent. Any such notice if given to Tenant shall be
addressed as follows:
Paradigm Genetics, Inc.,
000 Xxxxxxxxx Xx., Xxxxxxxx 0
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxx
Chief Financial Officer
Subordination Agreement [Ground Lease] 000 Xxxxxxxxx Xxx.,
RTP/Paradigm Genetics, Inc. - Page 5
if given to Landlord shall be addressed as follows:
Alexandria Real Estate Equities, Inc.
000 X. Xxx Xxxxxx Xxx., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
if given to Ground Lessor shall be addressed as follows:
Triangle Service Center, Inc.
0 Xxxxx Xxxxx
Xxxxxxxx Xxxxxxxx Xxxx, XX 00000
Attention: Mr. Xxxxx Xxxxxxxx
4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
5. ADDITIONAL AGREEMENTS. Tenant agrees that:
---------------------
(a) it shall give Ground Lessor copies of all notices of default by
Landlord that Tenant gives to Landlord pursuant to the Lease in the same manner
as they are given to Landlord;
(b) in all provisions of the Lease where Landlord is indemnified, the
reference to Landlord as an indemnitee shall be deemed to include Ground Lessor;
(c) this Agreement satisfies any condition or requirement in the Lease
relating to the granting of a non-disturbance agreement by Ground Lessor, and in
the event that there are inconsistencies between the terms and provisions of
this Agreement and the terms and provisions of the Lease dealing with non-
disturbance by Ground Lessor, the terms and provisions hereof shall be
controlling; and
(d) Ground Lessor shall have no liability under the Lease until Ground
Lessor succeeds to the rights of the Landlord under the Lease, and then only
during such period as Ground Lessor is the landlord thereunder. At all times
during which Ground Lessor is liable under the Lease, Ground Lessor's liability
shall be limited to Ground Lessor's interest in the Property.
6. DIRECTION TO PAY. Landlord hereby directs Tenant and Tenant agrees to
make all payments of amounts owed by Tenant under the Lease directly to Ground
Lessor from and after receipt by Tenant of notice from Ground Lessor directing
Tenant to make such payments to Ground Lessor. (As between Landlord and Ground
Lessor, the foregoing provision shall not be construed to modify any rights of
Landlord under or any provisions of the Ground Lease).
[ SIGNATURES ON NEXT PAGE ]
Subordination Agreement [Ground Lease] 000 Xxxxxxxxx Xxx.,
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
properly executed by their duly authorized representatives as of the date first
above written.
LANDLORD:
ARE-104 ALEXANDER ROAD, LLC, (SEAL)
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., (SEAL)
a Delaware limited partnership, managing member
By: ARE-QRS CORP., (SEAL)
a Maryland corporation, general partner
By: ______________________________________
Its: _____________________________________
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By: _______________________________________________
Its: ______________________________________________
GROUND LESSOR:
TRIANGLE SERVICE CENTER, INC., (SEAL)
a North Carolina corporation
By: ______________________________________________
Its: _____________________________________________
Exhibit A
Legal Description
-----------------
EXHIBIT M
ENVIRONMENTAL INFORMATION
-------------------------
1. LEAK DETECTION TEST REPORT dated June 4, 1993, prepared by Advanced Tank
Certification, Inc., REGARDING 20,000 GALLON FUEL OIL TANK TEST RESULTS.
2. UST CLOSURE REPORT NATIONAL INSTITUTE OF ENVIRONMENTAL HEALTH SCIENCES
dated June 27, 1993, prepared by Triangle Environmental, Inc., REGARDING 1000
GALLON GASOLINE UST.
3. REPORT OF ENVIRONMENTAL SERVICES dated March 30, 1994, prepared by Law
Engineering, Inc. REGARDING NIEHS FACILITY, NORTH CAMPUS, PHASE II RESEARCH
TRIANGLE PARK, NORTH CAROLINA.
4. LETTER dated April 13, 1994, from Law Engineering, Inc., to Mr. Xxxxxxx
Xxx REGARDING OBSERVATIONS OF UNDERGROUND STORAGE TANK CLOSURE AT NIEHS FACILITY
IN RESEARCH TRIANGLE PARK, NORTH CAROLINA.
5. LETTER dated April 25, 1994, from State of North Carolina Department of
Environment, Health and Natural Resources ("DEHNR"), to Xxxxx X. Xxxxx at
Southwestern Environmental Audits, Inc. REGARDING WELL CONSTRUCTION PERMIT NO.
31-0444-WM-0259.
6. LETTER dated May 23, 1994, from Southeastern Environmental Audits, Inc.,
together with UST CLOSURE ASSESSMENT REPORT dated May 10, 1994, prepared by
Southwestern Environmental Audit, Inc. REGARDING 20,000 GALLON FUEL OIL UST.
7. APPLICATION dated June 14, 1994, from XxXxxxxx Associates to DEHNR
REGARDING LEAKING PETROLEUM UNDERGROUND STORAGE TANK CLEANUP FUNDS.
8. COMPREHENSIVE SITE ASSESSMENT dated July 6, 1994, prepared by
Southeastern Environmental Audits, Inc.
9. POLLUTION INCIDENT/UST LEAK REPORTING FORM dated August 15, 1994,
prepared by NIEHS REGARDING 1,000 GALLON GASOLINE UST AND INCIDENT ON MAY 6,
1993.
10. LETTER dated October 27, 1994, from DEHNR to XxXxxxxx & Associates
REGARDING ASSIGNMENT OF FACILITY IDENTIFICATION NUMBER FOR ONE 20,000 GALLON
UST.
11. FACSIMILE COVER SHEET dated December 18, 1995, from Xxxxxx Xxxxxx at
DEHNR, to Xxx Xxxxxxxxx at Raleigh Regional Office REGARDING DENIAL LETTERS,
together with MEMORANDUM dated December 15, 1995, from DEHNR REGARDING TRUST
FUND ELIGIBILITY DENIAL.
12. FACSIMILE COVER SHEET dated January 11, 1996, from Xxxx Xxxxxx of DEHNR
to Xxx Xxxxx, enclosing POLLUTION INCIDENT/U.S.T. LEAK REPORTING FORM dated
January 10, 1996, REGARDING MARCH 11, 1994, INCIDENT AT NIEHS NORTH CAMPUS,
together with NORTH CAROLINA GROUND WATER CONTAMINATION INCIDENT MANAGEMENT SITE
PRIORITY RANKING SYSTEM dated January 10, 1996, REGARDING MARCH 11, 1994,
INCIDENT AT NIEHS NORTH CAMPUS.
13. MEMORANDUM dated January 18, 1996, from DEHNR REGARDING TF ELIGIBILITY
DENIAL NIEHS NORTH CAMPUS INCIDENT #14941.
14. LETTER dated February 15, 1996, from DEHNR to XxXxxxxx Associates
REGARDING CLEANUP FUNDS FOR NIEHS NORTH CAMPUS SITE.
15. LETTER dated February 26, 1996, from Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.,
counsel for XxXxxxxx Associates, to Xx. Xxx Xxxxx at Research Triangle
Foundation of North Carolina REGARDING NPDES PERMIT ISSUED TO XXXXXXXX
ASSOCIATES FOR GROUNDWATER REMEDIATION AT NIEHS NORTH CAMPUS.
16. REPORT dated August, 1996, prepared by Xxxxxx Environmental
Consultants, P.C., REGARDING FREE PRODUCT RECOVERY AND GROUNDWATER MONITORING
REPORT - FORMER NIEHS NORTH CAMPUS FACILITY 000 XX XXXXXXXXX XXXXX, XXXXXXXX
XXXXXXXX XXXX, XX.
17. LETTER dated November 5, 1996, from Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.
counsel for XxXxxxxx Associates, to Xx. Xxxxxxxxx Xxxxx at Research Triangle
Foundation of North Carolina REGARDING LEAKING FROM UNDERGROUND STORAGE TANK AT
FORMER NIEHS NORTH CAMPUS FACILITY.
18. LETTER dated December 9, 1996, from Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.,
counsel for XxXxxxxx Associates, to Xx. Xxxxxxxxx Xxxxx at Research Triangle
Foundation of North Carolina enclosing FREE PRODUCT DELINEATION AND RECOVERY
PLAN dated December 3, 1996, prepared by Xxxxxx Environmental Consultants, P.C.
REGARDING FORMER NIEHS NORTH CAMPUS FACILITY.
19. LETTER dated May 21, 1997, from Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.,
counsel for XxXxxxxx Associates, to Xx. Xxxxxxxxx Xxxxx at Research Triangle
Foundation of North Carolina enclosing LETTER dated May 16, 1997, from Prescott
Environmental Associates, Inc. enclosing LETTER dated May 14, 1997, from Xxxxxx
Environmental Consultants, P.C. REGARDING FREE PRODUCT RECOVERY PLAN
IMPLEMENTATION.
20. LETTER dated September 23, 1997, from by Department of Health & Human
Services, to DEHNR REGARDING CONTAMINATED SOIL FROM THE NIEHS SOUTH CAMPUS,
enclosing LETTER dated September 12, 1997, from Prescott Environmental
Associates, Inc. to DEHNR REGARDING DISPOSAL OF SOIL FROM THE FORMER NIEHS NORTH
CAMPUS FACILITY, together with FORM #GW-71.
21. LETTER dated May 4, 1998, from Xxxxxxx, Xxxxxx & Xxxxxxx, P.A., counsel
for XxXxxxxx Associates, to Xx. Xxxxxxxxx Xxxxx at Research Triangle Foundation
of North Carolina enclosing LETTER dated April 30, 1998, prepared by Prescott
Environmental Associates, Inc. REGARDING FREE PRODUCT RECOVERY.
22. LETTER dated August 4, 1998, from Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.,
counsel for XxXxxxxx Associates to Xx. Xxxxxxxxx Xxxxx at Research Triangle
Foundation of North Carolina enclosing LETTER REPORT dated July 24, 1998,
prepared by Prescott Environmental Associates, Inc. REGARDING FREE PRODUCT
RECOVERY ACTIVITIES AT THE FORMER NIEHS NORTH CAMPUS FACILITY.
23. LETTER dated August 4, 1998, from Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.,
counsel for XxXxxxxx Associates to Xx. Xxxxxxxxx Xxxxx at Research Triangle
Foundation of North Carolina enclosing LETTER dated August 2, 1998, from
Prescott Environmental Associates to NC DEHNR, enclosing LETTER REPORT dated
July 24, 1998, prepared by Prescott Environmental Associates, Inc. REGARDING
FREE PRODUCT RECOVERY ACTIVITIES AT THE FORMER NIEHS NORTH CAMPUS FACILITY.
24. LETTER dated November 2, 1998, from Xxxxxxx, Xxxxxx & Xxxxxxx, P.A.
counsel for XxXxxxxx Associates, to Xx. Xxxxxxxxx Xxxxx at Research Triangle
Foundation of North Carolina, enclosing LETTER REPORT dated October 27, 1998,
prepared by Prescott Environmental Associates, Inc. REGARDING FREE PRODUCT
RECOVERY ACTIVITIES AT THE FORMER NIEHS NORTH CAMPUS FACILITY.
25. LETTER dated January 12, 1999, from Prescott Environmental Associates,
Inc., to NC DEHNR, Raleigh Regional Office REGARDING FORMER NIEHS N. CAMPUS
SITE.
26. LETTER dated January 27, 1999, from NC DEHNR to Prescott Environmental
Associates, Inc. REGARDING PROPOSED ABANDONMENT OF MONITORING XXXXX AT NIEHS
NORTH CAMPUS SITE.
27. Draft PHASE I ENVIRONMENTAL SITE ASSESSMENT dated April 29, 1999,
prepared by Dames & Xxxxx NC.
