EXHIBIT 10.25.2
LEASE AGREEMENT
[PHASE 1B: GREENHOUSE]
This LEASE AGREEMENT (this "LEASE"), dated April ___, 2000 (the "EFFECTIVE
DATE"), is made between ARE-104 ALEXANDER ROAD, LLC, a Delaware limited
liability company ("LANDLORD"), and PARADIGM GENETICS, INC., a Delaware
corporation ("TENANT").
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 of Durham County, North Carolina (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. 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 plant analysis and growth room facility, a commercial greenhouse,
and a headhouse (collectively, the "GREENHOUSE").
C. Landlord and Tenant have entered into a separate Amended and Restated
Lease Agreement (the "OFFICE / LAB 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
first-class scientific research and development building (the "OFFICE / LAB").
BASIC LEASE PROVISIONS
ADDRESS: Fronting on X.X. Xxxxxxxxx Avenue, RTP, North Carolina
(numbered address to be obtained later).
PREMISES: The Greenhouse, containing approximately 31,776 rentable square
feet, as more fully described in Exhibit B.
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RTP/Paradigm Genetics, Inc.-Page 2
BASE RENT: Annual base rent equal to $315,000.00 payable in equal
monthly installments equal to $26,250.00.
IMPROVEMENT RENT: Equal monthly installments of improvement rent equal to the
monthly payment necessary to amortize fully the "EXCESS
DISBURSED CONSTRUCTION ALLOWANCE" (as defined below) over a
period of 120 months at an annual interest rate of 12.00%.
RENT ADJUSTMENT
PERCENTAGE: Base Rent: 4.00%;
Improvement Rent: 2.228%.
TENANT'S SHARE: 36.85%.
RENTABLE AREA
OF PREMISES: Greenhouse: approximately 31,776 sq. ft.
RENTABLE AREA
OF PROJECT: Greenhouse: approximately 31,776 sq. ft.;
Office / Lab: approximately 54,463 sq. ft.;
Total: approximately 86,239 sq. ft.
TARGET
COMMENCEMENT DATE: November 1, 2000.
SECURITY DEPOSIT: An amount equal to the sum of 6 monthly payments of Base
Rent plus 6 monthly payments of Improvement Rent (estimated
as of the date hereof as approximately $243,500.00).
DEMOLITION DEPOSIT: $600,000.00.
TERM: 120 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.
PERMITTED USE: Plant analysis and growth room facility, commercial
greenhouse, and headhouse.
LANDLORD'S BROKER: None.
TENANT'S BROKER: Advantis Realty (formerly known as Xxxxxxx Xxxxx).
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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 F - ORIGINAL SECURITY AMOUNT
[X] EXHIBIT A-2 - DESCRIPTION OF ADDL SITE [X] EXHIBIT G - RULES AND REGULATIONS
[X] EXHIBIT B - DESCRIPTION OF PREMISES [X] EXHIBIT H - TENANT'S PERSONAL PROPERTY
[X] EXHIBIT C - WORK LETTER [X] EXHIBIT I - ESTOPPEL CERTIFICATE
[ ] EXHIBIT D - COMMENCEMENT DATE; TERM [X] EXHIBIT J - LOAN SUBORDINATION AGMT
[ ] EXHIBIT E - CONSTR COSTS; DISBURSED [X] EXHIBIT K - LEASE SUBORDINATION AGMT
CONSTR ALLOWANCE; EXCESS [X] EXHIBIT L - ENVIRONMENTAL INFORMATION
DISBURSED CONSTR ALLOWANCE; [X] EXHIBIT M - HAZARDOUS MATERIALS LIST
IMPROVEMENT RENT
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 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,
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with "LANDLORD'S WORK" (as defined in the 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 150 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) and the Demolition 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 150 days, or the aggregate delay that is due
solely to Landlord Caused Delays exceeds 150 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
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).
(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, 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,
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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. Tenant shall pay to Landlord equal monthly installments
of annual base rent, which annual base rent initially shall be equal to
$315,000.00 and which equal monthly installments of annual base rent initially
shall be equal to $26,250.00 ("BASE RENT").
(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)).
(ii) "IMPROVEMENT RENT" (as defined below). As more fully
described in the Work Letter, Landlord is making available to Tenant an
allowance (the "CONSTRUCTION ALLOWANCE") to be used by Tenant solely for the
costs of designing, permitting, and constructing 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, premiums and fees for all insurance maintained by
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Landlord in connection with the construction, initial financing and debt service
(including principal), 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
"CONSTRUCTION COSTS"). The maximum amount of the Construction Allowance shall be
$3,000,000.00 (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 conditions of a certain Cost Sharing
Agreement dated July 27, 1999, between Landlord and Tenant (the "COST SHARING
AGREEMENT")); Tenant hereby acknowledges and agrees that the aggregate
Construction Costs may exceed the Construction Allowance (as adjusted and
actually disbursed to or for the benefit of Tenant, the "DISBURSED CONSTRUCTION
ALLOWANCE")), and that Tenant may be responsible for any such excess, as
provided in the Work Letter (including, but not limited to, Sections 6.2 and 6.4
thereof). Tenant shall pay to Landlord equal monthly installments of improvement
rent ("IMPROVEMENT RENT"), which installments of Improvement Rent are intended
generally to constitute repayment of any portion of the Disbursed Construction
Allowance that exceeds $2,000,000.00 (the "EXCESS DISBURSED CONSTRUCTION
ALLOWANCE") and shall be equal to the equal monthly payments that would be
necessary to amortize fully the Excess Disbursed Construction Allowance over a
period of 120 months at an annual interest rate of 12%. For illustration
purposes only, if the Excess Disbursed Construction Allowance is $1,000,000.00,
the equal monthly installments of Improvement Rent will be $14,347.09. Upon
either party's request, the other party shall execute and deliver a written
acknowledgment of the aggregate Construction Costs, the Disbursed Construction
Allowance, the Excess Disbursed Construction Allowance, and the initial equal
monthly installments of Improvement Rent computed on such Excess Disbursed
Construction Allowance, 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.
Notwithstanding the foregoing, Tenant, at any time after the 36th month of the
Term, shall have the right to prepay, without penalty or premium, all of the
Improvement Rent that will be due for the remainder of the Term, which
prepayment (the "IMPROVEMENT RENT PREPAYMENT") shall be equal to the balance of
the Excess Disbursed Construction Allowance that has not been amortized through
monthly installments of Improvement Rent as of the end of the calendar month in
which such full payment is actually made to Landlord by Tenant (the "PREPAYMENT
MONTH"). Under no circumstances will Tenant have the right to make a partial
prepayment of Improvement Rent. Rent adjustments (pursuant to Section 4 below)
shall not be considered when calculating the balance of the Excess Disbursed
Construction Allowance that has not been amortized. Tenant may exercise this
prepayment right only by giving Notice to Landlord of Tenant's election to
exercise such right at least 12 months prior to the expiration of the Prepayment
Month. For illustration purposes only, if the Excess Disbursed Construction
Allowance is $1,000,000.00 and the Prepayment Month is the 36th month of the
Term, the Improvement Rent Prepayment will be $812,740.72. Tenant shall have no
obligation to make any monthly payments of Improvement Rent after Tenant makes
the Improvement Rent Prepayment. The Improvement Rent Prepayment shall be deemed
fully earned by Landlord and non-refundable to Tenant.
(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.
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RTP/Paradigm Genetics, Inc.-Page 7
(c) RENT. Base Rent and Additional Rent shall together be denominated
"RENT". All monthly installments of 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 and Improvement Rent shall be increased on
the 1st 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 (i) multiplying the Base Rent payable immediately before such
adjustment by the Rent Adjustment Percentage applicable to Base Rent and adding
the resulting amounts to the Base Rent payable immediately before such
adjustment, and (ii) multiplying the Improvement Rent payable immediately before
such adjustment by the Rent Adjustment Percentage applicable to Improvement Rent
and adding the resulting amounts to the Improvement Rent payable immediately
before such adjustment. Base Rent and Improvement 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 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
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;
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(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;
(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
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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 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 initial monthly payments of Base
Rent plus 6 initial monthly payments of Improvement 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
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Exhibit F; 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 amount of the Security Deposit shall be
reduced to an amount equal to one-half of the amount of the Security Deposit
then held by Landlord. 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 $1,000,000.00, and (y) the aggregate amount of
Tenant's "LIQUID ASSETS" (as defined below), 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) one-half
of the amount of the Security Deposit then held by Landlord, including one-half
of the interest that has accrued on the Security Deposit, if
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 11
any (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 one-half of the amount of the Security Deposit
held by Landlord immediately prior to Landlord's return of the Letter of
Credit). This reduced 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 Security Deposit then held by
Landlord in accordance with this provision. Notwithstanding the foregoing, the
Security Deposit shall be increased to an amount equal to twice the amount of
the Security Deposit then held by Landlord 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 required increase in the Security Deposit within 15 days after Landlord
gives Tenant written demand to do so (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 twice the
amount of the Security Deposit held by Landlord immediately prior to Landlord's
return of the Letter of Credit). This increased 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 amount
of the Security Deposit in accordance with this provision.
(c) If, at any time during the Term, Tenant makes the Improvement Rent
Prepayment, then the amount of the Security Deposit shall be reduced by an
amount equal to (i) 6 initial monthly payments of Improvement Rent if, at that
time, the Security Deposit has not been reduced in accordance with Section 6(b)
above, and (ii) 3 initial monthly payments of Improvement Rent if, at that time,
the Security Deposit has been reduced in accordance with Section 6(b) above.
Within 30 days after Tenant makes the Improvement Rent Prepayment, Landlord
shall pay to Tenant (or, at Landlord's option, to the last assignee of Tenant's
interest hereunder) an amount equal to the required reduction in the amount of
the Security Deposit, including the interest that has accrued on such amount, if
any (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 amount of the Security Deposit held by
Landlord immediately prior to Landlord's return of the Letter of Credit less the
required reduction in such amount). This reduced 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 Security
Deposit in accordance with this provision.
(d) 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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 12
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 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.
(e) 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.
(f) 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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 13
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 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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 14
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 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 33 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 Premises 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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 15
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.
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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 16
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 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 H and any items agreed by
Landlord in writing to be included on Exhibit H 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, subject to the provisions of Section
42 below, 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 H is intentionally over-inclusive and includes items that will
be used, located, placed, and/or stored in the Office / Lab. 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 Office / Lab.
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 Greenhouse 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 Greenhouse. Tenant, in
keeping the Premises and the Project in good order, condition, and repair, shall
exercise and perform good maintenance practices,
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 17
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 Greenhouse, and (viii) any other
Building Systems reasonably required by Landlord. 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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 18
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;
(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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 19
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.
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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 20
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 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.
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 21
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 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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 22
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 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).
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 23
(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) OFFICE / LAB LEASE. Tenant is in breach of, in default under, or
otherwise has failed to comply with the agreements, terms, covenants and
conditions to be performed by Tenant in connection with the Office / Lab 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
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 24
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 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)
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 25
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 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.
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 26
(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 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 3,000 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
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RTP/Paradigm Genetics, Inc.-Page 27
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.
(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 I 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
G. 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
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RTP/Paradigm Genetics, Inc.-Page 28
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 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 J (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, subject to the provisions of Section 42 below and to the
exercise of any remedies by Landlord, may 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), 22(d), and 42; (c) the maintenance, repair,
restoration, and/or demolition obligations contained in Sections 12, 13, 18, and
42; (d) the obligation to obtain
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RTP/Paradigm Genetics, Inc.-Page 29
Hazardous Materials Clearances contained in Sections 18 and 42; 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 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 of the approximately 4.916 acres of land adjacent
to the Site (more fully described in Exhibit A-2 (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 L.
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
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RTP/Paradigm Genetics, Inc.-Page 30
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 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. A list
identifying each type of Hazardous Materials that Tenant currently anticipates
will 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") is attached hereto as Exhibit M. As a material
inducement to Landlord to allow Tenant to use Hazardous Materials in connection
with its business, Tenant agrees to deliver to Landlord an updated Hazardous
Materials List no more than 30 days prior to the Commencement Date. 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
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RTP/Paradigm Genetics, Inc.-Page 31
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 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
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RTP/Paradigm Genetics, Inc.-Page 32
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. (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
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RTP/Paradigm Genetics, Inc.-Page 33
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 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 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 (it being understood
and agreed, however, that no commission or other form of compensation is due or
payable to Tenant's Broker with regard to this leasing transaction). 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
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RTP/Paradigm Genetics, Inc.-Page 34
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 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 K (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, and (iii) any
financing to be secured by Tenant's interest in this Lease, 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,
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RTP/Paradigm Genetics, Inc.-Page 35
without limitation, the payment or reimbursement of all expenses to be paid or
reimbursed by Landlord under the Ground Lease (but excluding the payment of the
annual rent provided for in the Ground Lease (which shall be governed by the
terms and conditions of the Office / Lab 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.
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 Office / Lab to remain,
or to be restored to, the size and configuration contemplated in this 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,
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 36
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, 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. [INTENTIONALLY OMITTED]
41. RIGHT TO EXTEND TERM. Tenant shall have the right to extend the Term
upon the following terms and conditions:
(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, no Base Rent and no Improvement
Rent shall be payable; all other Rent shall remain payable on the same terms and
conditions as this Lease.
(b) 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.
(c) 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;
(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; or
(iii) if Tenant no longer has the right to use or occupy, or if
Tenant is no longer actually using or occupying, the Office / Lab pursuant to
the terms and conditions of the Office / Lab Lease, or if Tenant has not
exercised any extension rights under the
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RTP/Paradigm Genetics, Inc.-Page 37
Office / Lab Lease that are necessary to make the Office / Lab Lease expire at
the same time as this Lease expires.
(d) 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.
(e) 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 to the date of the
commencement of the Term Extension, whether or not such Defaults are cured.
42. DEMOLITION UPON SURRENDER.
(a) Notwithstanding any other provisions of this Lease to the contrary
(including, but not limited to, Section 28 and the last paragraph of Section
12), Landlord may elect to cause Tenant to demolish completely the Greenhouse
and all Improvements, Alterations, and Installations, and to restore any damage
to the Site caused by or occasioned as a result of such demolition, upon the
expiration or earlier termination of this Lease. Landlord may make such election
by giving Notice to Tenant of such election: (i) within 5 days after any early
termination of this Lease, or (ii) no later than 90 days prior to the scheduled
expiration of this Lease. If Landlord so elects, Tenant shall cause such
demolition and restoration to be performed within 120 days after the expiration
or earlier termination of this Lease, subject to Force Majeure Delays and delays
needed to obtain any Hazardous Materials Clearances required to perform such
demolition and restoration. Without in any way limiting the generality of the
foregoing, (x) during the demolition, Tenant, on a daily basis, shall cause the
Site and any adjacent property (including the Additional Site) to be cleaned so
that they are free from any accumulation of waste materials, trash, rubbish, or
other debris, (y) at all times, Tenant shall ensure that no burning of waste
materials, trash, or rubbish occurs on the Site or any adjacent property
(including the Additional Site), that no dirt, dust, or other by-product of the
demolition creates a public nuisance, and that all demolition work is performed
in compliance with all applicable Legal Requirements, and (z) upon completion of
the demolition, Tenant shall cause to be removed from the Site and any adjacent
property (including the Additional Site) all waste materials, trash, rubbish,
tools, equipment, machinery, and other debris. Tenant also shall ensure that all
demolition and restoration work is performed by duly licensed, insured, and
bonded contractors. If the demolition and/or restoration is not performed within
the required 120 days, Tenant shall pay Rent to Landlord for the additional time
used (as provided herein) as if Tenant otherwise occupied the Premises during
such period. Tenant's obligations under this Section shall be referred to
collectively as the "DEMOLITION OBLIGATIONS".
(b) Tenant shall deposit with Landlord on the Commencement Date
security for the performance of all of Tenant's Demolition Obligations (the
"DEMOLITION DEPOSIT") in an amount equal to $600,000.00. At least one-sixth of
the Demolition Deposit shall be in cash and up to five-sixths of the Demolition
Deposit may be in the form of a Letter of Credit; provided, however, that the
entire Demolition 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 Demolition 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
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RTP/Paradigm Genetics, Inc.-Page 38
benefit. Any Letter of Credit that constitutes a portion of the Demolition
Deposit shall satisfy all of the requirements set forth in clauses (i) through
(vi) of Section 6(a) above.
(c) Landlord shall hold the Demolition Deposit as security for the
performance of Tenant's Demolition Obligations. The Demolition Deposit is not an
advance rental deposit or a measure of Landlord's damages in case of Tenant's
failure or refusal to perform any of its Demolition Obligations. At any time
that Landlord reasonably believes that Tenant has failed or refused to perform
any of its Demolition Obligations, Landlord may use all or any part of the
Demolition Deposit (including accrued interest, if any) to pay or perform any of
Tenant's Demolition Obligations or to compensate Landlord for any loss or damage
resulting from any such failure or refusal, without prejudice to any other
remedy provided herein or provided by law. Upon bankruptcy or other debtor-
creditor proceedings against Tenant, the Demolition Deposit shall be deemed to
be applied first to the payment of Rent and other charges due Landlord for
periods prior to the filing of such proceedings. 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 Demolition 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 Demolition 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 Demolition
Deposit, and Tenant's right to the Demolition Deposit shall apply solely against
Landlord's transferee.
(e) Landlord's obligation with respect to the Demolition Deposit is
that of a debtor, not a trustee. The Demolition Deposit shall be the property of
Landlord, but shall be paid to Tenant when Tenant's Demolition Obligations have
been completely fulfilled. If Tenant and all assignees of Tenant's interest
hereunder fully and timely perform all of the Demolition Obligations 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 Demolition Deposit then held by Landlord (including accrued
interest, if any) within 60 days after Landlord's acceptance of the Site after
the completion of all of the Demolition Obligations.
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.
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RTP/Paradigm Genetics, Inc.-Page 39
(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, upon
Tenant's request and at Tenant's sole cost and expense, Landlord shall prepare,
execute, and cause to be recorded or filed a memorandum of this Lease, which
memorandum shall contain only the following information and any other additional
information that may be required by applicable law: (i) the names of the parties
to this Lease, (ii) a description of the Site and the Premises, (iii) the
Commencement Date, (iv) the Term, and (v) the Extension Rights.
(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
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RTP/Paradigm Genetics, Inc.-Page 40
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, 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.
Net Greenhouse Lease X.X. Xxxxxxxxx Ave.,
RTP/Paradigm Genetics, Inc.-Page 41
(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 ]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease Agreement
as of the day and year first above written.
TENANT:
PARADIGM GENETICS, INC., (SEAL)
a Delaware corporation
By:
--------------------------------
Xxxx X. Xxxxx
CEO and President
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:
----------------------------
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 0134'26" 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 0243'15" 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 8720'44" 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 0244'10" West a distance of
100.85 feet to a point; Thence, North 8949'25" West a distance of 85.25 feet to
a point; Thence, South 0233'01" West a distance of 80.34 feet to a point;
Thence, North 8949'25" West a distance of 157.55 feet to a point; Thence, South
0226'24" West a distance of 88.04 feet to a point; Thence, North 8949'25" West a
distance of 52.18 feet to a point; Thence, South 0226'24" West a distance of
336.73 feet to a point; Thence, North 8843'29" West a distance of 276.76 feet to
an existing concrete monument; Thence, North 0116'24" East a distance of 330.28
feet to an existing concrete monument; Thence, North 8803'29" West a distance of
22.85 feet to a new iron pipe; Thence, North 8451'33" West a distance of 150.08
feet to an existing concrete monument; Thence, North 0510'14" East a distance of
235.37 feet to a new iron pipe; Xxxxxx, Xxxxx 0000'00" Xxxx a distance of 150.23
feet to a new iron pipe; Xxxxxx, Xxxxx 0000'00" Xxxx a distance of 16.45 feet to
a new iron pipe; Xxxxxx, Xxxxx 0000'00" Xxxx a distance of 105.32 feet to a new
iron pipe; Xxxxxx, Xxxxx 0000'00" Xxxx a distance of 36.22 feet to a new iron
pipe; Xxxxxx, Xxxxx 0000'00" Xxxx 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 0134'26" 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 0243'15" 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 0458'14" West, 609.30 feet to an existing concrete monument; Thence, North
8843'29" West a distance of 411.30 feet to a point; Thence, North 0226'24" East
a distance of 336.73 feet to a point; Thence, South 8949'25" East a distance of
52.18 feet to a point; Thence North 0226'24" East a distance of 88.04 feet to a
point; Thence, South 8949'25" East a distance of 157.55 feet to a point; Thence,
North 0233'01" East a distance of 80.34 feet to a point; Thence, South 8949'25"
East a distance of 85.25 feet to a point; Thence North 0244'10" East a distance
of 100.85 feet to a point; Thence, South 8720'44" 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
WORK LETTER
[PHASE 1B: GREENHOUSE]
This WORK LETTER, dated April ___, 2000 (this "WORK LETTER"), 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 ("TENANT"), and is attached to and made a part of the Lease
Agreement [Phase 1B: Greenhouse] dated April ___, 2000 (the "LEASE"), by and
between Landlord and Tenant. Any initially capitalized terms used but not
defined herein shall have the meanings given them in the Lease.
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 of Durham County, North
Carolina (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 plant analysis and
growth room facility, a commercial greenhouse, and a headhouse containing
approximately 31,776 rentable square feet (collectively, the "GREENHOUSE").
C. This Work Letter contains the agreements of the parties with respect to
the design and construction of the shell and core of the Greenhouse, the site
improvements appurtenant to the Greenhouse, and all fixed and permanent
improvements to the Greenhouse (commonly referred to as the "tenant
improvements").
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., 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
"GREENHOUSE ARCHITECT"), engineers, and designers responsible for the design and
development of the Base Building Work, the Tenant Improvements, and the other
components of the Greenhouse as a whole (collectively, "LANDLORD'S WORK") shall
be selected by Tenant, subject to Landlord's approval, which approval shall not
be unreasonably withheld, conditioned, or delayed. The general contractor (the
"GREENHOUSE CONTRACTOR") responsible for the construction of the Greenhouse Work
shall be selected by Landlord, subject to Tenant's approval, which approval
shall not be unreasonably withheld, conditioned, or delayed. The Greenhouse
Contractor shall select all subcontractors to be used for the Greenhouse Work,
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 Greenhouse Architect and the Greenhouse
Contractor shall coordinate with the architect, engineers, and designers
responsible for the design and development of the Project as a whole
(collectively, the "PROJECT ARCHITECT") in a manner reasonably satisfactory to
Landlord. Landlord and Tenant hereby acknowledge and agree that: (i) Xxxxxxxxxxx
Associates, Inc. has been pre-approved as the Greenhouse Architect; (ii) Xxxxxx
Building Corporation has been pre-approved as the Greenhouse Contractor; and
(iii) O'Xxxxx Xxxxxx & Associates has been selected to act as the Project
Architect. For purposes of this Work Letter, the Greenhouse Architect and the
Greenhouse Contractor may be referred to generally as "DEVELOPERS".
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 3
2. Landlord's 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 shell, the core, and the other site improvements detailed in the "GREENHOUSE
CONSTRUCTION DRAWINGS" (as defined in Section 2.6), and shall include on-site
surface parking of not less than 33 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 Greenhouse 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 Greenhouse desired by Tenant of
a fixed and permanent nature, exclusive of the Base Building Work. Other than
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. Greenhouse Design Program. Tenant has prepared and delivered to
Landlord and the Greenhouse Architect outline specifications detailing Tenant's
requirements for Landlord's Work (the "GREENHOUSE DESIGN PROGRAM"), Landlord has
delivered to Tenant any written objections, questions, and/or comments
(generally, "COMMENTS") that Landlord may have regarding such Greenhouse Design
Program, and Tenant has caused the Greenhouse Design Program to be revised to
address such Comments and to be resubmitted to Landlord for approval. The final
Greenhouse Design Program was approved on August 25, 1999.
2.4. Greenhouse Schematic Plans. Tenant has caused the Greenhouse
Architect to prepare and submit to Landlord for Landlord's review and comment
schematic drawings for the development of Landlord's Work (the "GREENHOUSE
SCHEMATIC PLANS"), Landlord has delivered to Tenant and the Greenhouse Architect
any Comments that Landlord had regarding the Greenhouse Schematic Plans, and
Tenant has caused the Greenhouse Architect to revise the Greenhouse Schematic
Plans to address such Comments and to resubmit the same to Landlord for
approval. The final Greenhouse Schematic Plans were approved on October 5, 1999.
Tenant hereby confirms that the final Greenhouse Schematic Plans reflect
Tenant's requirements for Landlord's Work and were prepared substantially in
accordance with the Greenhouse Design Program, and Landlord shall have no
responsibility to Tenant if such Greenhouse Schematic Plans do not reflect
Tenant's requirements for Landlord's Work. The cost of any changes to the design
of the Office / Lab that become necessary because of changes to the Greenhouse
Schematic Plans requested by Tenant shall be payable by Tenant, and the cost of
any changes to the design of the Office / Lab that become necessary because of
changes to the Greenhouse Schematic Plans requested by Landlord shall be payable
by Landlord.
2.5. Greenhouse Design Development Plans. Tenant has caused the
Greenhouse Architect to prepare and submit to Landlord for Landlord's review and
comment design development plans and specifications for the development of
Landlord's Work (the "GREENHOUSE DESIGN DEVELOPMENT PLANS"), Landlord has
delivered to Tenant and the Greenhouse Architect any Comments that Landlord had
regarding the Greenhouse Design Development Plans, and Tenant has caused the
Greenhouse Architect to revise the Greenhouse Design Development Plans to
address such Comments and to resubmit the same to Landlord for approval. The
final Greenhouse Design Development Plans were approved on
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 4
December 30, 1999. Tenant hereby confirms that the final Greenhouse Design
Development Plans reflect Tenant's requirements for Landlord's Work and were
prepared substantially in accordance with the Greenhouse Schematic Plans, and
Landlord shall have no responsibility to Tenant if such Greenhouse Design
Development Plans do not reflect Tenant's requirements for Landlord's Work. The
cost of any changes to the design of the Office / Lab that become necessary
because of Tenant's requirements for the Greenhouse Design Development Plans
shall be payable by Tenant, and the cost of any changes to the design of the
Office / Lab that become necessary because of Landlord's requirements for the
Greenhouse Design Development Plans shall be payable by Landlord.
2.6. Greenhouse Construction Drawings. On March 3, 2000, Tenant
caused the Greenhouse Architect to prepare and deliver to Landlord, for
Landlord's review and comment, construction plans for Landlord's Work. On March
20, 2000, Landlord delivered to Tenant and the Greenhouse Architect the Comments
that Landlord had regarding such construction plans only. Within 5 business days
after Landlord's receipt of the specifications and drawings that correspond to
such construction plans (with such construction plans, the "GREENHOUSE
CONSTRUCTION DRAWINGS"), Landlord shall deliver to Tenant and the Greenhouse
Architect any Comments that Landlord may have regarding the remainder of the
Greenhouse Construction Drawings; provided, however, that Landlord may not
disapprove any matter that is substantially consistent with the Greenhouse
Design Development Plans; provided further, however, that Tenant may not submit
to Landlord any Greenhouse Construction Drawings that are not substantially
consistent with the Greenhouse Design Development Plans without submitting a
"CHANGE REQUEST" (as defined in Section 5.1). All Greenhouse Construction
Drawings shall be prepared substantially in accordance with the Greenhouse
Design Development Plans, and Tenant shall be solely responsible for ensuring
that the Greenhouse Construction Drawings reflect Tenant's requirements for
Landlord's Work. Within 5 business days after Tenant's and the Greenhouse
Architect's receipt of any Comments from Landlord, Tenant and the Greenhouse
Architect shall consider all such Comments in good faith and shall notify
Landlord how Tenant proposes to respond to such Comments. Any disputes in
connection with such Comments shall be resolved in accordance with Section 3.
The cost of any changes to the design of the Office / Lab that become necessary
because of Tenant's requirements for the Greenhouse Construction Drawings shall
be payable by Tenant, and the cost of any changes to the design of the Office
/ Lab that become necessary because of Landlord's requirements for the
Greenhouse Design Development Plans shall be payable by Landlord. Once approved
by Landlord, Tenant shall not materially modify the Greenhouse Construction
Drawings except as may be reasonably required in connection with the issuance of
the "BUILDING PERMIT" (as defined in Section 4.1). Tenant will give Landlord
prompt Notice of any such material modifications.
3. Approval and Completion. Landlord and Tenant hereby acknowledge that
the Greenhouse Construction Drawings must be completed and approved not later
than April 14, 2000, in order for Landlord's Work to be "SUBSTANTIALLY COMPLETE"
(as defined in Section 4.2) by the Target Commencement Date. 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
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 5
expenses resulting from any final decision with respect to Landlord's Work shall
be payable out of the "CONSTRUCTION FUND" (as defined in Section 6.4). Any
changes to the Greenhouse 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. Once the
Greenhouse Construction Drawings have been approved, Tenant shall obtain, or
shall cause the Greenhouse Architect to obtain, a building permit authorizing
the construction of Landlord's Work as contemplated in this Work Letter (the
"BUILDING PERMIT") and all other permits, licenses, or approvals that may be
required in connection with construction of Landlord's Work (including, but not
limited to, approval of a revised site plan for the Site that reflects Tenant's
redesign of the Greenhouse). Landlord shall cooperate and assist Tenant in
obtaining the Building Permit, the cost of which shall be payable from the
Construction Fund. Landlord shall commence construction of Landlord's Work
within 3 business days after Tenant or the Greenhouse Architect (as the case may
be) obtains the Building Permit and all other required permits, licenses, or
approvals. 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 Building Permit
that: (i) are inconsistent with Landlord's obligations under this Work Letter;
(ii) are substantially inconsistent with the Greenhouse 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 Greenhouse is yet to be designed and/or 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
cause by Force Majeure ("FORCE MAJEURE DELAYS")), Landlord shall substantially
complete or cause to be substantially completed Landlord's Work in accordance
with the Building Permit, and shall obtain at least a temporary certificate of
occupancy for the Greenhouse that will allow Tenant to use and occupy such
Greenhouse 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 Greenhouse 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, the Greenhouse 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
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 6
Durham (the "CODE")) and/or to obtain or to comply with any required permit
(including the Building Permit); (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 the Greenhouse Construction Drawings
approved by Landlord and Tenant, the option will be within Tenant'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 the Greenhouse 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:
(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
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 7
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 agreement (generally, a "DEVELOPMENT AGREEMENT") entered
into with the Greenhouse Contractor, and Tenant shall use commercially
reasonable efforts to cause the following to be included in the Development
Agreement entered into with the Greenhouse Architect: (i) an express statement
or agreement by each such Developer that Tenant (if Landlord is the contracting
party) or Landlord (if Tenant is the contracting party) 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 (if Landlord is the contracting party) or Landlord (if Tenant is the
contracting party) and, as to the Greenhouse Architect, shall include, but not
be limited to, a representation or warranty that the Greenhouse Construction
Drawings prepared by or on behalf of the Greenhouse 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 Greenhouse
Architect, an express requirement that the Greenhouse 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
(if Landlord is the contracting party) or Landlord (if Tenant is the contracting
party) be added as an additional insured under any insurance for which the
contracting party is to be named an additional insured; and (v) as to the
Greenhouse Contractor, an express requirement that the Greenhouse Contractor
direct all manufacturers supplying equipment to be installed in the Greenhouse
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 Greenhouse,
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 Greenhouse,
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 Construction 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;
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 8
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 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, 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 causing the Greenhouse Architect to
prepare, revise, deliver, or submit, or to address Comments regarding,
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);
(g) Tenant's delay in making payments to Landlord for "EXCESS
CONSTRUCTION COSTS" (as defined in Section 6.4);
(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 Greenhouse Architect 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 the Greenhouse 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
Greenhouse Architect, such approval not to be unreasonably withheld,
conditioned, or delayed.
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 9
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 Construction
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 Greenhouse
Architect's determination of the amount of Tenant Caused Delay in connection
with such Change shall be final and binding on Landlord and Tenant.
6. Costs.
-----
6.1. Budget for Landlord's Work. Before commencing Landlord's Work,
Landlord shall obtain 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 "GREENHOUSE COSTS"). The Budget shall be
based upon the Greenhouse Construction Drawings and shall include a payment to
Landlord of administrative rent ("ADMINISTRATIVE RENT") equal to 2.50% of the
Greenhouse Costs for administering, monitoring, and inspecting Landlord's Work,
which sum shall be payable from the Construction 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. Payment for Landlord's Work; Construction Allowance. Landlord
shall provide to Tenant a "CONSTRUCTION ALLOWANCE" (as defined in Section
3(b)(ii) of the Lease) of not more than $3,000,000.00 (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) for the payment of all "CONSTRUCTION COSTS" (as
defined in Section 3(b)(ii) of the Lease), subject to the terms hereof and the
terms of the Lease. Within 5 business days after Tenant's receipt of the Budget
from Landlord, Tenant shall give Landlord Notice of how much of the Construction
Allowance Tenant
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 10
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 granted or withheld in Landlord's sole and absolute discretion. If the
Budget for Landlord's Work is greater than the Construction Allowance, Tenant
shall deposit with Landlord the difference, in cash, prior to the commencement
of Landlord's Work, for disbursement by Landlord to pay Construction Costs.
6.3. Costs Includable in Construction Allowance. The Construction
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 Greenhouse Design Program, the Greenhouse
Schematic Plans, the Greenhouse Design Development Plans, and the Greenhouse
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 Construction Allowance. The items that may be paid for using the
Construction Allowance include, without limitation, the shell and core of the
Greenhouse, the site improvements appurtenant to the Greenhouse, HVAC systems,
utility distribution systems, laboratory benches and casework, and hazardous
waste containment equipment. Notwithstanding anything to the contrary contained
herein, the Construction 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 limited to, modular plant growth rooms, biological safety cabinets, and
scientific equipment not incorporated into the Greenhouse.
6.4. Excess Construction 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 Construction Allowance (as
adjusted). Notwithstanding Section 6.1 above, 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 Construction Costs and may be paid from the
Construction Allowance (if sufficient). 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 Construction Costs and may
not be paid from the Construction Allowance. Subject to the foregoing
limitations on Construction Costs payable from the Construction Allowance, if at
any time and from time-to-time Landlord reasonably determines that the remaining
Construction Costs under the Budget exceed the remaining unexpended Construction
Allowance (as adjusted), 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, 100.00% of the then current Construction
Costs in excess of the remaining Construction Allowance ("EXCESS CONSTRUCTION
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 Construction
Costs, Landlord shall have all of the rights and remedies set forth in the Lease
for nonpayment of Rent (including, but not limited to, the right to interest at
the Default Rate and the right to assess a late charge), and for purposes of any
litigation instituted with regard to such amounts the same will be considered
Rent. Such deposits of Excess Construction Costs, together with the Construction
Allowance (as adjusted) and any funds deposited by Tenant pursuant to Section
6.2 above, are herein referred to as the "CONSTRUCTION FUND". Funds deposited by
Tenant to pay Excess Construction Costs shall be the first thereafter disbursed
to
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 11
pay Construction Costs. If upon Substantial Completion of Landlord's Work and
the payment of all sums due in connection therewith there are undisbursed
portions of the Construction Fund, Tenant shall be entitled to such undisbursed
portions solely to the extent of any deposits of Excess Construction Costs
actually made by Tenant with Landlord.
7. Tenant Access.
-------------
7.1. Tenant's Access Rights. Landlord hereby agrees to permit Tenant
access to the Premises, 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 Greenhouse
Architect and the Greenhouse 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 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.
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
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 Premises 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 the date of this Work Letter 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
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 12
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.
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
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 13
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 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 ]
Work Letter [Greenhouse] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 14
IN WITNESS WHEREOF, Landlord and Tenant have executed this 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
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:
------------------------------------
ATTEST:
-------------------------
Its Secretary
------------------
[CORPORATE SEAL]
SCHEDULE A TO WORK LETTER
[PHASE 1B: GREENHOUSE]
DEVELOPMENT SCHEDULE
--------------------
Event Date
--------------------------------------------------------
Final approval of Greenhouse
Design Program pursuant to Section 2.3 Done; 08/25/99
Delivery to Landlord of construction
plans portion of Greenhouse Construction
Drawings pursuant to Section 2.6 Done; 03/03/00
Delivery to Landlord of remainder of
Greenhouse Construction Drawings 03/27/00
Final approval of Greenhouse Construction
Drawings pursuant to Section 3 04/14/00
Issuance of Building Permit 04/14/00
Commencement of
construction of Base Building Work Within 3 business days
after Tenant obtains necessary
permits
Issuance of building permit
for Tenant Improvements N/A
Commencement of
construction of Tenant Improvements N/A
Substantial Completion of Landlord's Work 11/01/00
Issuance of Temporary Certificate of Occupancy 11/01/00
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 ("TENANT"), and is attached to
and made a part of the Lease Agreement [Phase 1B: Greenhouse] dated April ___,
2000 (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
CONSTRUCTION COSTS; DISBURSED CONSTRUCTION ALLOWANCE;
-----------------------------------------------------
EXCESS DISBURSED CONSTRUCTION ALLOWANCE; IMPROVEMENT 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 ("TENANT"), and is attached to
and made a part of the Lease Agreement [Phase 1B: Greenhouse] dated April ___,
2000 (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 "CONSTRUCTION COSTS" shall be $__________,
the aggregate "DISBURSED CONSTRUCTION ALLOWANCE" shall be $__________, the
aggregate "EXCESS DISBURSED CONSTRUCTION ALLOWANCE" shall be $__________, and
the initial equal monthly installments of "IMPROVEMENT 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
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 ("TENANT"), and is attached to
and made a part of the Lease Agreement [Phase 1B: Greenhouse] dated April ___,
2000 (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 G
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 X.X. Xxxxxxxxx Ave., 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 H
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 I
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 Lease Agreement
[Phase 1B: Greenhouse], dated as of April ___, 2000 (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:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(If none, please state "None.")
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:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(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:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(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;
(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:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(If none, please state "None.")
(c) Tenant is currently paying 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
improvement rent or other charges, free rent, partial rent, or credits, offsets
or reductions in improvement rent, except as follows:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(If none, please state "None.")
(d) 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 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:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(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. DEMOLITION DEPOSIT.
The amount of Tenant's demolition deposit held by Landlord under the Lease
is $__________.
SECTION 12. PREPAID RENT.
The amount of prepaid rent, separate from the security deposit, is
$__________, covering the period from __________, _____ to __________, _____.
SECTION 13. INSURANCE.
All insurance, if any, that Tenant is required to maintain under the Lease
is presently in effect.
SECTION 14. 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 15. 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:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(If none, please state "None.")
SECTION 16. 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 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 17. 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 18. 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, commercial greenhouse, and related
administrative space) or otherwise used in accordance with all applicable laws.
SECTION 19. 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 20. 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 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 21. 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:
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
-----------------
Exhibit B
COPY OF LEASE
-------------
EXHIBIT J
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 a Lease Agreement [Phase 1B:
Greenhouse] dated as of April ___, 2000 ("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 commercial
greenhouse with approximately 31,776 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] X.X. Xxxxxxxxx Ave., 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 terminated 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] X.X. Xxxxxxxxx Ave., 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 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] X.X. Xxxxxxxxx Ave., 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] X.X. Xxxxxxxxx Ave., 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] X.X. Xxxxxxxxx Ave., 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 K
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")
with Ground Lessor 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 a Lease
Agreement [Phase 1B: Greenhouse] dated as of April ___, 2000 ("LEASE"), for
certain premises to be built on the Site containing or intended to contain a
commercial greenhouse with approximately 31,776 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 lessor's interest
under the Ground Lease and has full power and authority to enter into this
Agreement.
Subordination Agreement [Ground Lease] X.X. Xxxxxxxxx Ave., 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
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:
(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
Subordination Agreement [Ground Lease] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 3
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 or reimbursement of all expenses to be paid or reimbursed by
Landlord under the Ground Lease (but excluding the payment of the
annual rent provided for in the Ground Lease (which shall be governed
by the terms and conditions of [a certain Amended and Restated Lease
Agreement [Phase 1A: Office / Laboratory] executed as of April ___,
2000, and effective as of July 27, 1999])), the payment of the rent
provided for in the Development Rights Agreement, and the payment 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. If Tenant fails to satisfy, in a
timely fashion, any of the Ground Lease Obligations in the manner
required hereunder,
Subordination Agreement [Ground Lease] X.X. Xxxxxxxxx Ave., RTP
Paradigm Genetics, Inc.--Page 4
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] X.X. Xxxxxxxxx Ave., 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] X.X. Xxxxxxxxx Ave., 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:
------------------------------------------------------
GROUND LESSOR:
TRIANGLE SERVICE CENTER, INC., (SEAL)
a North Carolina corporation
By:
------------------------------------------------------
Its:
------------------------------------------------------
Exhibit A
LEGAL DESCRIPTION
-----------------
EXHIBIT L
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.
EXHIBIT M
HAZARDOUS MATERIALS LIST
------------------------
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