Exhibit 10.17
LEASE
BY AND BETWEEN SAGA LIMITED PARTNERSHIP,
A MARYLAND LIMITED PARTNERSHIP
AND
MARYLAND ECONOMIC DEVELOPMENT CORPORATION,
A BODY POLITIC AND CORPORATE AND CONSTITUTED AS A
PUBLIC INSTRUMENTALITY OF THE STATE OF MARYLAND
DATED JANUARY 18, 1995
TABLE OF CONTENTS
Section Caption
------- -------
Section 1 Definitions
Section 2 Demise of Premises
Section 3 Rent
Section 4 Late Payments
Section 5 Intentionally
Section 6 Omitted
Section 7 Inspection of Books/Records
Section 8 Extension
Section 9 Utilities
Section 10 Taxes
Section 11 Additions to the Building
Section 12 Common Areas
Section 13 Tenant's Work
Section 14 Restrictions on Use
Section 15 Services, Installation, Repairs, Repairs by Landlord
Section 16 Force Majeure
Section 17 Surrender of Premises
Section 18 Vacating or Abandoning the Premises or Personal Property
Section 19 Quiet Enjoyment
Section 20 Indemnification and Waiver of Claim
Section 21 Insurance of Tenant
Section 22 Insurance of Landlord
Section 23 Effect on Insurance
Section 24 Total or Partial Destruction of Premises
Section 25 Alterations
Section 26 Mechanics' Lien
Section 27 Breach or Default
Section 28 Effect of Breach
Section 29 Access by Landlord
Section 30 Assignment and Subletting
Section 31 Condemnation
Section 32 Execution of Estoppel Certificate
Section 33 Non-Disturbance, Subordination and Attainment
Section 34 Signs and Advertising
Section 35 Rules and Regulations
Section 36 Parking Spaces
Section 37 Purchase Option/Right of First Refusal
Section 38 Expansion
Section 39 Environmental Indemnification/Representation
Section 40 Accord and Satisfaction
Section 41 No Partnership
Section 42 Holding Over
Section 43 Recordation
Section 44 Waivers/Brokerage Commission
Section 45 Remedies for Landlord
Section 46 Table of Contents; Captions
Section 47 Notices
Section 48 Applicable Law
Section 49 Successors and Included Persons
Section 50 Waiver of Trial by Jury
Section 51 Rights of and Claims Against Landlord
Section 52 Calculation of Time
Section 53 Severability; Reduction of Charges
Section 54 Counterparts
Section 55 Total Agreement
Section 56 No Merger
Section 57 Time of the Essence/Good Faith and Fair Dealing
Section 58 Commercial Purpose
Section 59 Abatement of Rent Relating to Unsubleased Space
Section 60 Repayment of "Abated" Rent
Section 61 Limitation of Tenant Liability
Section 62 Vacating of Office Space by The Belt's Corporation
LEASE AGREEMENT
THIS LEASE (this "Lease") is made as of the 18th day of January, 1995, by
and between SAGA LIMITED PARTNERSHIP, a Maryland limited partnership
(hereinafter referred to as "Landlord") and MARYLAND ECONOMIC DEVELOPMENT
CORPORATION, a body politic and corporate and constituted as a public
instrumentality of the State of Maryland (hereinafter referred to as
"Tenant").
RECITALS
WHEREAS, Landlord is the fee simple owner of the Property (as hereinafter
defined), and the Building (as hereinafter defined) and desires to lease
space therein; and
WHEREAS, Tenant has agreed to perform certain improvements to the
Building and to lease the Premises (as hereinafter defined) within the
Building for sublease to one or more third parties, all for the purpose of
providing affordable laboratory space and accessory office space to various
emerging business enterprises to encourage the growth of the medical research
industry in the State of Maryland; and
WHEREAS, the parties desire to enter into this Lease in order to define
and carry out their respective rights, duties, and liabilities relating to
the Property, the Building and the Premises.
NOW, THEREFORE, WITNESSETH in consideration of the mutual promises and
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby covenant and agree as follows:
SECTION 1
DEFINITIONS
For the purposes of this Lease, Landlord and Tenant hereby agree that the
following terms shall have the indicated meanings:
Additional Rent: all sums of money or charges required to be paid by Tenant
under this Lease other than Annual Rent, whether or not such sums or charges
are designated "Additional Rent".
Annual Rent: The sum of $6.82 per square foot per annum multiplied by the
actual square footage of the leased Premises during the first three (3) years
of the Original Term and the amount during the remaining years of the
Original Term and any Extension Term as set forth in Section 3.
Assignment: any assignment, transfer, mortgage, or encumbrance, whether
voluntarily, non-voluntarily, or by operation of law, of Tenant's interest in
this Lease, or such other events determined to be Assignments pursuant to
Section 30.
Bondholder: Xxxxxxx-Xxxxxx Contracting Company whose address is 000 X. Xxxxx
Xxxx, Xxxxxx, Xxxxxxxx 00000.
Building: the building located on the Property and known as 0000 Xxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000, consisting of 184,962 square feet,
more or less, as measured in accordance with BOMA standards.
Common Areas: those portions of the Property which Landlord may from time to
time designate for Tenant's and any Subtenant's non-exclusive use, which may
include parking areas, if any, as designated in Exhibit F; and any other
areas so provided by Landlord but excluding any areas included in any other
lease or part of the Premises specifically limited for use by one or more
other designated party.
Environmental Requirements: any federal, state or local law, statute,
ordinance or regulation, or decree or administrative order or desire or other
agreement or restriction, whether public or private (including but not
limited to any condition or requirement imposed by any insurer or surety
company), now existing or hereafter created, issued or enacted and all
amendments thereto, modifications thereof and substitutions therefor, which
in any way pertains to human health, safety or welfare, Hazardous Materials,
Hazardous Materials contamination or the environment (including but not
limited to ground, air, water or noise pollution or contamination, and
underground or above ground tanks).
Extension Terms: (a) a period of six and one-half (6-1/2) years commencing
upon the expiration of the Original Term ("First Extension Term"); (b) a
period of five (5) years commencing upon the expiration of the First
Extension Term ("Second Extension Term"); and (c) a period of five (5) years
commencing upon the expiration of the Second Extension Term ("Third Extension
Term").
Hazardous Materials: Including, but is not limited to, asbestos or any
substance containing asbestos, polychiornated biphenyls, any explosives,
radioactive materials, chemicals known or suspected to cause cancer or
reproductive toxicity, pollutants, effluents, contaminants, emissions,
infectious wastes, any petroleum or petroleum-derived waste or product or
related materials and any items defined as "hazardous substances", "hazardous
materials", "hazardous wastes", "toxic substances" or other similar
designations under any Hazardous Material Law, including but not limited to,
the Resource Conservation and Recovery Act (the Solid Waste Disposal Act), 42
U.S.C. Section 6901 et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("XXXX"); the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801 et seq.; the Federal Water Pollution Control At,
33 U.S.C. Section 1251 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et
seq.; the Toxic Substances Control Act, 15 U.S.C.
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Section 2601 et seq.; and the Safe Drinking Water Act, 42 U.S.C. Section 300f
et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 655 et
seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C.
Section 136 et seq. and any other present or future local, state, federal or
international law, treaty, statute, ordinances, rules, regulations,
advisories and guidelines relating to public health, safety, or the
environment, and any and all amendments, regulations, orders, decrees,
permits, licenses, or deed restrictions now or hereafter promulgated
thereunder (collectively referred to as the "Environmental Laws").
Landlord: SAGA Limited Partnership, a Maryland Limited Partnership.
Landlord's Address: 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000,
Attn: S A. "Skip" Xxxxx, III.
Landlord's Mortgagee: the beneficiary of any mortgage or deed of trust.
Landlord's Telecopier Number: (000) 000-0000.
Lease Commencement Date: Sixty (60) days following the date this Lease is
fully executed by the parties.
MIDFA: Maryland Industrial Development Financing Authority, a _____.
Monthly Installment of Annual Rent: At lease inception, Seventeen Thousand
and FiftyDollars ($17,050.00). Being one-twelfth (1/12th) of the Annual
Rental as set forth in Section 3.
Mortgage: any mortgage, deed of trust, ground lease or security agreement
affecting the Property, or, any part thereof, at any time, including, but not
limited to, a certain Deed of Trust dated as of November 1, 1992, executed by
Landlord in favor of certain namedt rustees for the benefit of the Maryland
National Bank, recorded among the Land Records of Baltimore City, Maryland at
Liber _____, Folio _____.
Normal Business Hours: the hours from 8:30 a.m. to 5:00 p.m., Monday through
Friday, except legal holidays.
Notices: all notices, requests, demands, or other communications which may be
or are required or permitted to be served or given under this Lease.
Option Space: 50,000 square feet of space, more or less, within the Building,
which is the space that Tenant has the option to lease hereunder, and which
is outlined in Exhibit A, and such other space as Tenant has the right to
lease pursuant to any rights granted to Tenant under Section 38, infra.
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Original Term: commencing March 19, 1995 and continuing for a period of
approximately six and one-half (6-1/2) years from the Rental Commencement
Date, and ending at 5:00 p.m. on December 31, 2001.
Parking Spaces: Fifty (50) parking spaces as shown on Exhibit B shall be made
available by Landlord for Tenant's and any Subtenant's non-exclusive use.
Premises: initially consisting of 30,000 square feet, more or less, within
the Building, which is the space to be leased by Tenant hereunder and
outlined in Exhibit C (hereinafter called the "Original Space"), which may be
increased from time to time by the incorporation of the Option Space in
accordance with options/rights granted to Tenant. The actual square footage
of the Premises shall be measured in accordance with BOMA standards, and the
parties hereto agree to execute confirmatory statements (prior to lease
commencement and in the event the square footage increases due to Tenant's
exercise of any option rights contained herein) to record in writing the
actual square footage contained in the leased Premises.
Property: all that tract or parcel of land owned by Landlord situate in
Baltimore City, Maryland consisting of approximately 3.304 acres, more or
less, and more particularly described in Exhibit D.
Rent: all Annual Rent, Monthly Installments of Annual Rent, and Additional
Rent payable by Tenant to Landlord under this Lease.
Rental Commencement Date: The earlier of (a) the completion of the Osiris
Work (as defined herein) or (b) July 1, 1995.
Sublease: any sublease or agreement to sublet executed by and between the
Tenant and any third party or parties for all or a portion of the Premises,
as the same may be amended, revised or otherwise modified from time to time,
which sublease or agreement to sublet shall be substantially in the form of
Exhibit H attached hereto and incorporated herein by reference. Any material
change in the form of any sublease which affects or may affect Landlord's
rights under the sublease, shall first be approved by Landlord.
Subtenant: any Subtenant under a Sublease.
Taxes: all taxes, assessments, and governmental charges of any kind and
nature whatsoever levied or assessed against the Property, Building or
Premises.
Tenant: Maryland Economic Development Corporation, a body politic and
corporate and constituted as a public instrumentality of the State of
Maryland or any permitted assignee under Section 30.
Tenant's Address: 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx
00000, Attn: Xxxx X. Xxxxx, Executive Director.
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Tenant's Building Work: all those improvements and allocations to be
performed by Tenant to the shell, structure, building systems, roof, interior
and exterior of the Building in accordance with the plans and specifications
prepared by Xxxxxxxx, Inc., Kibart, Inc. and Faissant Associates, Inc. dated
September 16, 1994, as more particularly described on Exhibit E.
Tenant's Telecopier Number: (000) 000-0000.
Tenant TI Work: all those improvements and renovations to the Premises to be
performed by Tenant from time to time during the Term to renovate and/or
build-out the Premises for medical laboratory and accessory office use
including but not limited to those improvements and renovations shown on the
plans and specifications prepared by Xxxxxxxx, Inc., Kibart, Inc. and
Faissant Associates, Inc. dated September 16, 1994 as well as any other
improvements or renovations as more particularly described on Exhibit E
(hereinafter referred to as the "Osiris Work").
Tenant's Pro Rata Share: the percentage equivalent to a fraction having as
its numerator the number of net rentable square feet in the Premises and its
denominator the number of square feet of net rentable floor space in the
Building, initially being sixteen and twenty-two one hundredths percent
(16.22%).
Term: the Original Term and any Extension Term as to which Tenant exercises
an option.
Vacant: With regard to the Premises, all or any portion thereof which is not
occupied by Tenant or Subtenant. For purposes of this Lease, space shall be
deemed to be vacant even though a Subtenant is still physically occupying
such space so long as such Subtenant is not actively conducting its business
from such space and Subtenant is engaged in the process of closing down or
moving its business or operations.
When used herein, the singular shall apply to the plural, the plural to
the singular, and the use of any gender shall apply to all genders.
SECTION 2
DEMISE OF PREMISES
Landlord leases to Tenant and Tenant hereby leases from Landlord the
Premises for the Term, Rent, and upon the terms, covenants, and conditions
set forth herein. Except as specifically set forth herein, Tenant hereby
accepts the Premises in "as is" condition and as complying with all
obligations of Landlord with respect to the condition, order and repair
thereof.
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SECTION 3
RENT
Tenant shall begin paying rent on the Rental Commencement Date and shall
pay the Monthly Installments of Annual Rent in advance on the first day of
each month for the Term of this Lease; and (except as specifically set forth
herein including Section 60) without deduction, set-off, recoupment,
counterclaim, or demand, at Landlord's Address or at such other place as
shall be designated in writing by Landlord. If the rental payments shall
commence or end on a day other than the first day of a month, the Monthly
Installments of Annual Rent for any such partial month of the Term shall be
prorated on a per diem basis. Upon the execution of this Lease, Tenant shall
pay one (1) Monthly Installment of Annual Rent and, if the Original Term does
not commence on the first day of a month, Tenant shall also pay a prorated
Monthly Installment of Annual Rent for the period from the first day of the
Original Term until the last day of such month.
During the first three (3) years of this Lease from the Rent Commencement
date, the Annual Rent for the Original Space shall be the sum of $6.82 per
square foot per annum, multiplied by the actual square footage of the leased
Premises, payable in equal monthly installments. Commencing July 1, 1998, the
Annual Rent for the Original Space shall be increased by ten and nine-tenths
percent (10.9%), being $7.561 per square foot, per annum.
Commencing July 1, 1999 and every year thereafter, during the Original
Term and any Extension Term(s) of this Lease, the Annual Rent for the
Original Space shall be increased by three and one-half percent (3.5%) per
annum. Accordingly, the Annual Rent for the Original Space shall be increased
as follows:
Amount
Increase Date Per Sq. Ft.
---------------- --------------
July 1, 1998 $7.561
July 1, 1999 $7.826
July 1, 2000 $8.100
July 1, 2001 $8.384
July 1, 2002 $8.677
July 1, 2003 $8.981
and so forth, increasing at three and one-half percent (3.5%) per annum.
The Annual Rent for the Option Space shall be calculated as follows:
As to any Option Space which Tenant shall have executed any option or
right, the Annual Rent for the Option Space if leased during the first three
(3) years of this Lease shall
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be the sum of $5.15 per square foot, per annum, multiplied by the actual
square footage of the leased Option Space, payable in equal monthly
installments.
Commencing July 1, 1998, the Annual Rent for the Option Space shall be
increased by ten and nine-tenths percent (10.9%), being $5.711 per square
foot, per annum.
Commencing July 1, 1999 and every year thereafter, during the Original
Term and any Extension Term(s) of this Lease, the Annual Rent for the Option
Space shall be increased by three and one-half percent (3.5%) per annum.
Accordingly, the Annual Rent for the Option Space shall be increased as
follows:
Amount
Increase Date Per Sq. Ft.
---------------- --------------
July 1, 1998 $5.711
July 1, 1999 $5.911
July 1, 2000 $6.118
July 1, 2001 $6.332
July 1, 2002 $6.554
July 1, 2003 $6.783
and so forth, increasing at three and one-half percent (3.5%) per annum.
SECTION 4
LATE PAYMENTS
In the event that any Monthly Installment of Annual Rent or Additional
Rent shall be past due for more than fifteen (15) days, Tenant shall pay to
Landlord as Additional Rent a late charge equal to the greater of (a) five
percent (5%) of the unpaid Rent, or (b) the interest on the unpaid Rent from
the date when due until payment at the rate of fifteen percent (15%) per
annum, or, if less, the highest rate permitted by law. The late charge
imposed under this Section 4 is not a penalty and has been agreed to by
Landlord and Tenant as necessary to compensate Landlord for its additional
costs associated with late payment.
SECTION 5
INTENTIONALLY OMITTED
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SECTION 6
INSPECTION OF BOOKS/RECORDS
For any cost or expense incurred by Landlord or relating to the Building,
Property or Premises for which Tenant must reimburse or pay to Landlord,
Tenant shall be entitled to review, and examine any and all of Landlord's
books, records and other papers relating to such cost or expense within
fifteen (15) business days from any such request. All such payments due and
owing by Tenant shall reflect credits or discounts received by Landlord and
shall not include any fines, penalties or late charges incurred by Landlord,
unless same is caused solely by Tenant's late payment to Landlord.
SECTION 7
EXTENSION
Upon the expiration of the Original Term, and provided Tenant is not then
in default under any material term, covenant, or condition (or if so, such
default is cured prior to the expiration of any applicable grace period),
Tenant shall have three (3) separate successive options to extend this Lease,
the first for an Extension Term of six and one-half (6-1/2) years, and the
second and third for an Extension Term of five (5) years each, provided that
Tenant gives Landlord at least two (2) months' prior written notice of its
exercise of each such option. In the event that Tenant exercises its option
as to any Extension Term, all provisions of this Lease shall apply during
each Extension Term except the Annual Rent shall be as set forth in Section 3.
SECTION 8
UTILITIES
From and after the Commencement Date, Tenant shall make (or cause its
Subtenants to make) agreements with each utility company and public body to
provide, in Tenant's or Subtenant's name, as applicable, gas, electricity,
water, sewer, telephone, heat and air conditioning necessary for use of the
Premises, and Tenant, or Subtenant, as applicable, shall cause all such
utilities to be separately metered, to the extent possible. Tenant shall pay
(or cause its Subtenants to pay) directly to the companies furnishing utility
service the cost of all service connection fees and the cost of all utilities
consumed throughout the Term. If the water and/or sewer service is not
capable of being separately metered, Landlord shall pay the water and/or
sewer bills for the Building, and Tenant shall pay, or cause its Subtenants
to pay, to Landlord prior to the time when each xxxx becomes due, for their
actual use of the said utility as reflected on the xxxx. In the event that
Tenant, or Subtenant, as applicable, falls to pay in a timely manner any sum
required under this Section 8, Landlord shall have the right, but not the
obligation, to pay any such sum. Any sum so paid by Landlord shall
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be deemed to be owing by Tenant to Landlord and due and payable as Additional
Rent within five (5) days after written demand.
Tenant's obligations for payment of the costs incurred for utilities
which serve the Premises prior to the termination of this Lease shall survive
such termination.
SECTION 9
TAXES
(a) Tenant and/or any Subtenant shall be liable for Taxes levied against
personal property, trade fixtures, and the Tenant TI Work and/or improvements
placed or constructed by Tenant and/or any Subtenant in the Premises. If any
such Taxes are levied against Landlord or Landlord's property and if Landlord
elects to pay the same or if the assessed value of Landlord's property is
increased thereby and Landlord elects to pay the Taxes based on such
increase, Tenant and/or any Subtenant shall pay to Landlord within five (5)
days of written demand that part of such Taxes for which Tenant or any
Subtenant is primarily liable hereunder.
(b) Landlord shall pay all taxes assessed against the Building and the
Property. Tenant agrees to pay to Landlord as Additional Rent all (i.e. 100%)
of such taxes attributable to the Premises, Tenant's Pro Rata Share of the
taxes attributable to the Common Areas and Tenant's Pro Rata Share of the
taxes attributable to the Building (without duplication of any sum for which
Tenant is responsible for pursuant to Section 9(a) above), as based upon the
tax worksheet allocations which are commonly used by the assessors. Tenant
shall pay, or cause to be paid, such amount within thirty (30) days after
receipt of copies of the applicable tax bills and assessment notices.
(c) If Tenant should fail to pay any Taxes required to be paid by Tenant
hereunder, in addition to any other remedies provided herein, Landlord may,
if it so elects, pay such Taxes. Any sum so paid by Landlord shall be deemed
to be owing by Tenant to Landlord and due and payable as Additional Rent
within five (5) days after written demand.
(d) If at any time during the Term of this Lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any
taxes, assessments, levies, or charges levied, assessed, or imposed on real
estate and the improvements thereon, there shall be levied, assessed, or
imposed on Landlord a capital levy or other tax directly on the rents
received therefrom and/or a franchise tax assessment, levy or charge measured
by or based, in whole or in part, upon such rents or the Building, then such
taxes, assessments, levies or charges that re in lieu of the present method
of taxation shall be deemed to be included with the term "Taxes" for the
purposes hereof.
(e) So long as Tenant is provided with prior written notice of Landlord's
decision to contest, in addition to the other payments under this Section 9,
Tenant shall pay as
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Additional Rent, within five (5) days of written demand, Tenant's Pro Rata
Share of any reasonable fees, reasonable expenses, and reasonable costs
incurred by Landlord in contesting any Tax, or any assessments, levies, or
tax rate, applicable to the Property or portions thereof, so long as Landlord
undertakes such contest and contests in good faith and in an appropriate
manner or by appropriate proceedings.
(f) Landlord agrees to promptly pay in full and discharge any and all
Taxes assessed against the Building and/or the Property and to exhibit to
Tenant, within sixty (60) days after such payment, the receipted bills for
such Taxes, all of which Taxes Landlord shall pay prior to the day upon which
the same shall become delinquent. Taxes assessed against the Building and/or
the Property shall be considered delinquent as of the first day any interest
or penalties commence to accrue thereon. If Landlord fails to pay the Taxes
described in this Section 9(f) prior to the same becoming delinquent, Tenant
may, but shall have no obligation to, pay such Taxes. Upon presentation to
Landlord of the receipted bills for such Taxes, Landlord shall reimburse
Tenant for such amount (plus interest at the rate of five percent (5%) per
annum until paid). If Landlord does not pay such amount within ten (10) days
after receipt of the receipted bills, Tenant shall have the right to set-off
such amount against that portion of next month's Applicable Rent and, if
applicable, any future month's applicable Rent.
(g) Notwithstanding anything above to the contrary, the amount of taxes
for which Tenant is liable hereunder shall not be subject to increase by
reason of increased assessments in the value of the Building or Property
resulting from (i) any improvements, alterations or additions to the Building
or Property, other than for the Premises (including any Option Space
incorporated therein) or the Common Areas, or (ii) any sale of the Building
or Property.
SECTION 10
ADDITIONS TO THE BUILDING
Landlord shall have the exclusive right to use all or any part of the
roof and exterior walls of the Building for any purpose, provided, however,
in connection with any exercise by Landlord of any rights of entry or access
to the Premises described in this Section 10 or in any other provision of
this Lease, Landlord and its contractors use reasonable efforts to avoid
interference with the use or occupancy of the Premises by Tenant or its
Subtenants, and that such use does not materially interfere with Tenant's or
any Subtenants business or activities; to make alterations to and to build
additional stories on the Building in which the Premises are located and to
build adjoining the same, provided, however, that such use does not
materially interfere with Tenant's or any Subtenants business or activities;
and to erect and maintain in connection with any construction thereof,
temporary scaffolds and other aids to construction on the exterior of the
Building, provided, however, that such use does not materially interfere with
Tenant's or any Subtenants business or activities. Upon forty-eight (48)
hours advance notice, Landlord shall have access to the Premises that may be
necessary
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or desirable to perform such work, and Tenant shall not be entitled to any
abatement of rent on account thereof unless such work materially interferes
with Tenant's or any Subtenant1s business or activities. Tenant and all
Subtenants shall have free and unobstructed access to and from their
respective demised premises at all times during which work or alterations are
being performed pursuant to this Section 10.
SECTION 11
COMMON AREAS
In addition to the use of the Premises, Tenant, any Subtenant, and its
and their employees, customers, agents and business invitees shall have the
right to use the Common Areas in common with Landlord and other tenants of
the Building, their employees, customers, agents and business visitors.
Tenant shall not obstruct, or permit any Subtenant to obstruct, the Common
Areas or use them, or permit any Subtenant to use them, for any purpose other
than their customary or intended purposes.
All Common Areas shall be subject to the exclusive control of Landlord.
Landlord shall operate, manage and maintain the Common Areas in good order,
condition and repair and shall maintain the Property in a manner consistent
with the operation of comparable office/laboratory facilities in metropolitan
Baltimore and Landlord shall have the sole right and exclusive authority to
employ and discharge all personnel with respect thereto. Tenant shall pay
Tenant's Pro Rata Share of all costs incurred by Landlord for the operation
and maintenance of the Common Areas. Common Area costs include, but are not
limited to, costs and expenses for the following: landscaping; utilities,
water and sewage charges attributable to the Common Areas (and not for any
space which is occupied or intended to be occupied); maintenance of signs
(other than tenants' signs); premiums for liability, property damage, fire
and other types of casualty insurance covering the Common Areas and worker's
compensation insurance for personnel engaged in the management or operation
of the Property (or prorated equitably for part-time personnel); all property
taxes and assessments levied on or attributable to the Common Areas; fees for
required licenses and permits; routine maintenance and repair of roof
membrane, flashings, gutters, downspouts, roof drains, skylights and
waterproofing, maintenance of paving (including sweeping, snow and ice
removal, striping, repairing, resurfacing, and repaving); general
maintenance; painting; lighting; cleaning; refuse removal; and a reasonable
allowance to Landlord for Landlord's supervision of the Common Areas (not to
exceed three percent (3%) of the gross rents of the Property for the Calendar
year). Landlord may cause any or all of such services to be provided by third
parties and the cost of such services shall be included in Common Area Costs.
Landlord agrees that the cost of maintaining the Common Areas will not
include (i) any costs incurred in connection with procuring additional
tenants or subtenants, including those costs involved in negotiating or
enforcing any leases or subleases, improving or altering any space for such
parties' occupancy or performing any structural work in connection therewith;
or (ii) any costs for which Landlord is entitled to reimbursement from other
tenants or occupants of the Property. Landlord further agrees not to set up
any
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reserves or require from Tenant contribution to any reserves for Common Area
Maintenance that has not yet occurred.
Landlord hereby expressly reserves the right but not the obligation to
maintain security for the Common Areas; to change the size, area, level,
location, and arrangement of the Common Areas, provided the Common Areas as
reconfigured is comparable to the Common Area as now existing; to close
temporarily all or any portion of the Common Areas for the purpose of making
repairs, changes, or alterations thereto or performing necessary maintenance
in connection with any emergency or for any other purpose whatsoever, whether
such purpose is similar or dissimilar to the foregoing, provided that any
such closing shall be for the shortest possible time and provided that
reasonable access to and from the Premises and a public way shall be
available at all times.
Tenant shall remove, or cause to be removed, all litter, debris, waster
and trash (which do not constitute medical waste or are not subject to any
Environmental Requirement) from the Premises. Landlord shall provide and be
responsible for the removal of litter, debris, waste and trash from the
Common Areas.
With regard to litter, debris, waste and trash which constitute medical
waste or are subject to any Environmental Requirement, Tenant shall remove,
or cause to be removed, the same from the Premises by an individual or entity
licensed to remove such items. The costs and expenses for the removal of such
items noted in this paragraph shall be borne by Tenant or the applicable
Subtenant.
SECTION 12
TENANT TI WORK
Tenant shall, at its own expense, commence to construct the Osiris Work
in accordance with the plans and specifications prepared by Xxxxxxxx, Inc.,
Kibart, Inc., and Faissant Associates, Inc. (as more particularly described
on Exhibit F-i attached hereto and incorporated herein by reference) (the
"Building Plans and Specifications"). Tenant shall also, at Tenant's expense,
put a new roof on that part of Building which contains the Premises. By
executing this Lease, Landlord acknowledges and agrees that it has reviewed
and approved the Building Plans and Specifications and that no further
consent of Landlord is necessary or required. Tenant shall complete the
Osiris Work not later than June 30, 1995, time being of the essence.
Landlord further acknowledges and agrees that Tenant may from time to
time during the Term, improve and/or renovate the Premises (non-structural
only) by removing or altering the then-existing Osiris Work and/or adding
other Tenant TI Work, however, the plans and specifications shall be given to
and approved by Landlord before Tenant commences any such Tenant TI Work,
such approval shall not be unreasonably withheld or delayed.
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All Tenant TI Work is to be commenced, constructed and completed pursuant
to the terms of this Section 12 and shall be done in a workmanlike manner and
shall conform to all applicable laws, statutes, ordinances and codes
(including without limitation, building, health and fire codes) of all
applicable governmental authorities. Tenant shall obtain all required
permits, approvals, licenses and permissions, to enable Tenant to commence
construction of the Tenant TI Work; however, Landlord agrees to cooperate
with and assist Tenant in obtaining any of the foregoing. The Osiris Work
shall be deemed to be "substantially complete" when the Osiris Work has been
completed (except for minor punch list items) as evidenced by an executed AIA
form certification of substantial completion, provided that any and all
governmental approvals required for the occupancy of the Premises are then
issued and in full force and effect (including any occupancy permit required
by state or local law). During the course of the construction of any Tenant
TI Work, Landlord shall have the right to inspect the area or areas under
construction at least once each month, and in a timely manner, shall notify
Tenant in writing of any objection that it may have in the performance of the
Tenant TI Work and shall set forth in such written notice the repair or
replacement that Landlord desires in order to cure such objection. Landlord
shall be deemed to have waived any objection it may have to the performance
of the Tenant TI Work to the extent that (a) Landlord did not raise an
objection within one (1) month after such objectionable Tenant TI Work was
performed and (b) Landlord's failure to raise the objection within the time
would substantially and adversely effect Tenant's ability to cure such
objectionable Tenant TI Work. Tenant shall promptly undertake any reasonable
repair or replacement set forth by Landlord in order to correct such
objection.
The approval by the Landlord of the Plans and Specifications, nor any
subsequent inspections or approvals by Landlord of any Tenant TI Work during
or after construction shall not constitute a warranty or representation by
the Landlord or any of its agents as to the technical sufficiency, adequacy
or safety of any structure or any of its component parts, including, without
limitation, any fixtures, equipment or furnishings, nor shall such approvals
or inspections constitute such a warranty or representation that the said
Tenant TI Work complies or conforms to any and all applicable laws, statutes,
ordinances, and codes (including, without limitation, building, health and
fire codes), of all applicable governmental authorities. All acts, including
any failure to act, relating to the Tenant TI Work by Landlord or any agent,
representative or designee of the Landlord are performed solely for the
benefit of the Landlord to confirm that Tenant is complying with the
provisions of this Lease, and are not for the benefit of Tenant nor the
benefit of any other person or entity.
SECTION 13
RESTRICTIONS ON USE
Tenant shall not use or permit the Premises, or any part thereof, to be
used for any purpose other than laboratory space for medical research and
office use related thereto. Furthermore, no use of the Premises shall be made
or permitted to be made that shall result in: (a) waste of the Premises, or
any part thereof; (b) a public or private nuisance that may
13
disturb the quiet enjoyment of Landlord or other tenants of the Property; (c)
any illegal or unlawful use; (d) any use involving the sale, storage or
preparation of food, alcoholic beverages or materials generating an odor on
the Premises; or (e) noises or vibrations that may unreasonably disturb the
Landlord or other tenants. Tenant shall comply at its own expense with all
restrictive covenants and governmental regulations, laws, ordinances and
statutes affecting the Premises either now or in the future. Landlord shall
not voluntarily enter into any restrictive covenant or similar arrangement
materially and adversely affecting Tenant's right or ability to use the
Premises for the purposes permitted by this Lease without Tenant's prior
written consent.
SECTION 14
SERVICES, INSTALLATION, REPAIRS, AND MAINTENANCE BY TENANT
After written approval by Landlord of any applicable written
non-structural plans and specifications, which approval shall not be
unreasonably withheld or delayed, Tenant and any Subtenant may install, at
its or their own expense, any additional electrical wiring, plumbing,
ventilation, security system and any other building system which may be
required in connection with Tenant's or any Subtenant's use of the Premises.
Tenant shall at all times at its own expense keep and maintain, or cause
to be kept and maintained, the Premises in good order and repair, and in a
neat, safe, clean and orderly condition, including, but not limited to,
reasonable periodic painting and making all nonstructural ordinary and
extraordinary, foreseen and unforeseen repairs and replacements to the
Premises under Landlord's supervision including, without limitation, repairs
and replacements to the plumbing and electrical and all systems and
facilities serving the Premises exclusively. Tenant shall not overload the
electrical wiring serving the Premises or within the Premises, and will
install at its own expense under Landlord's supervision, but only after
obtaining Landlord's written approval, which approval shall not be
unreasonably withheld or delayed, any electrical wiring which may be required
in connection with the Premises.
Tenant and/or any Subtenant will repair promptly at its own expense by or
under the direction of Landlord any damage (whether structural or
nonstructural) to the Premises or the Building caused by Tenant and/or any
Subtenant, their agents, servants and employees, including, but not limited
to, any construction or alterations performed by Tenant and/or any Subtenant
or by bringing into the Premises or on the Property any property for Tenant's
and/or any Subtenant's use, or by the installation or removal of such
property, regardless of fault or by whom such damage shall be caused, unless
caused solely by the negligence of Landlord or its contractors or
subcontractors or its or their agents or employees.
Tenant shall supply to the Premises and shall be solely responsible, at
its own cost and expense, for the following: trash removal; interior and
exterior window cleaning, and repair and replacement of any glass (including
windows) serving all or a part of the Premises;
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extermination services; heat and air conditioning for the Premises, and
Tenant shall maintain a reasonable minimum temperature in order to properly
maintain and protect the Premises and its components; and security to the
Premises.
Tenant shall pay to Landlord as Additional Rent its Pro Rata Share of the
Common Area expenses and maintenance, including grounds maintenance and
parking lot maintenance, snow and ice removal, and the like.
Tenant shall have no right to direct or instruct any of Landlord's
contractors, subcontractors, agents or employees, except with the prior
written agreement of Landlord.
In the event Tenant fails in the performance of any of its obligations
under this Lease, and such failure continues for a period of ten (10) days
after written notice from Landlord (except that in an emergency no notice
shall be required), Landlord, in addition to Landlord's other remedies under
this Lease, at or in equity, may but shall not be obligated to do so) cure
such default on behalf of Tenant without any liability of Landlord for damage
to Tenant's fixtures or other property or to the business of Tenant or any
assignee, subtenant, concessionaire, or licensee by reason thereof, and
Tenant shall reimburse Landlord, as Additional Rent, within five (5) days of
written demand, for any reasonable sums paid or reasonable costs incurred
during curing such default and the late charge specified under Section 4
shall accrue from the date Landlord cures such default until it is reimbursed
therefor.
Tenant understands and acknowledges that one or more of the aforesaid
services or utilities may be suspended or reduced by reason of accident,
emergency or reason specified in Section 16, or for repairs, alterations,
replacements, or improvements which in the judgment of Landlord are desirable
or necessary to be made. No such interruption or suspension of services or
utilities shall be deemed an eviction or disturbance to Tenant's use and
enjoyment of the Premises or any part thereof, nor shall any such
interruption or suspension of services or utilities render Landlord liable to
Tenant for damages, unless such interruption or suspension of services or
utilities is solely the result of the negligence of Landlord, its agents,
servants or employees.
SECTION 15
REPAIRS BY LANDLORD
Landlord shall make all structural repairs, including, but not limited
to, structural columns and floors (excluding floor coverings, such as carpet
and floor tile) of the Premises, the roof of the Building, and the exterior
walls of the Building (excluding glass) provided Tenant gives Landlord
written notice specifying the need for and nature of such repairs; provided,
however, if Landlord is required to make any repairs to such portions of the
Premises or Building by reason, in whole or in part, of the negligent act or
failure to act by Tenant or any Subtenant or its or their contractors or
subcontractors or its or their agents or
15
employees, or by reason of any non-permitted use of the Premises by Tenant,
Landlord may collect the cost of such repairs, as Additional Rent, within
five (5) days of written demand. Landlord shall keep all of the components of
the Building and the Property for which it is responsible as aforesaid in
good order and repair.
Except as provided herein, unless solely due to Landlord's or its
agents', servants' or employees' negligence, Landlord shall have no liability
to Tenant or any Subtenant by reason of any inconvenience, annoyance,
interruption, or injury to business arising from the making of any repairs or
changes which Landlord is required or permitted by this Lease to make, or by
any other tenant's lease or required by law to make in or to any portion of
the Premises, Building or Common Areas.
If without Landlord's prior consent, Tenant performs or permits to be
performed any alterations, additions, improvements, changes, affixations of
chattels, or other work which affects the structural portions of the Premises
and/or the roof of the Building or which adversely affects the structural
integrity of the Building, such action by Tenant shall release and discharge
Landlord as of the commencement of such alteration, addition, improvement,
affixation, or other work of and from such repair obligation. Thereafter,
Tenant agrees to be solely responsible under Landlord's supervision for the
maintenance, repair, and replacement of any or all such structural portions
and/or roof which have been affected as aforesaid, and Tenant shall commence
promptly after demand by Landlord to make all such repairs and replacements
and proceed diligently to complete them. In the event Tenant shall fail in
the performance, to Landlord's satisfaction, of such responsibilities,
Landlord, in addition to Landlord's other remedies under this Lease, at law
or in equity, may (but shall not be obligated to do so) cure such failure on
behalf of Tenant without any liability of Landlord for damage to Tenant's
fixtures or other property or to Tenant's business by reason thereof, and
Tenant shall reimburse Landlord, as Additional Rent, within five (5) days of
written demand, for sums paid or costs incurred in curing such failure and
the late charge specified under Section 4 shall accrue from the date that
Landlord cures such default until it is reimbursed therefor. For the purpose
of the foregoing, if Tenant performs or permits to be performed any such
alterations, additions, improvements, changes, affixations, or other work in
a manner not consistent with Landlord's prior consent thereto, such work
shall be deemed to have been performed without Landlord's consent.
SECTION 16
FORCE MAJEURE
This Lease and the obligation of Tenant to pay Rent hereunder and perform
all of the other covenants and agreements hereunder on the part of Tenant to
be performed shall not be affected, impaired or excused because Landlord is
unable to fulfill any of its obligations under this Lease or is unable to
supply, or is delayed in supplying, any service to be supplied by it under
the terms of this Lease or is unable to make, or is delayed in making, any
repairs, additions, alterations, or decorations, or is unable to supply or is
delayed in
16
supplying, any equipment or fixtures, if Landlord is prevented or delayed or
otherwise hindered from doing so by reason of any outside cause whatsoever,
including, without limitation, acts of God; fire; earthquake; flood;
explosion; action of the elements; declared or undeclared war; riots; civil
disturbances; inability to procure or a general shortage of labor, equipment,
energy, materials, or supplies in the open market; breakage or accident to
machinery; partial or entire failure of utilities; failure of transportation;
strikes; lockouts; action of labor unions; condemnation; injunction; court
order or decree; governmental preemption; any rule, order or regulation of
any department of subdivision of any government agency; or the conditions of
supply and demand which have been or are affected by war or other emergency.
Similarly, Landlord shall not be liable for any interference with any
services supplied to Tenant by others if such interference is caused by any
of the reasons listed in this Section. Nothing contained in this Section
shall be deemed to impose any obligation on Landlord not expressly imposed by
other provisions of this Lease.
Other than Tenant's obligation to pay Rent or any other payment to cure
default, and except as otherwise provided in this Lease, Tenant shall be
excused for the period of any delay in the performance of any obligation when
such delay is due to any cause or causes beyond Tenant's control which
include but are not limited to any labor dispute; governmental laws,
regulations or controls; fire or other casualty; inability to obtain any
material or service; or through acts of God. Tenant shall give to Landlord
notice of the existence of the force majeure within five (5) days after
commencement of the force majeure.
SECTION 17
SURRENDER OF PREMISES
(a) At the expiration or earlier termination of the Term of this Lease,
Tenant shall peaceably surrender the Premises in broom clean condition and
good order and repair and otherwise in the same condition as the Premises
were upon the commencement of this Lease, except ordinary wear and tear.
(b) If Landlord elects to require that alterations, installations,
changes, work, replacements, additions, or improvements comprised within the
Tenant TI Work and made by or on behalf of Tenant to the Premises be removed
at the termination of this Lease, Tenant hereby agrees to cause the same to
be removed at its sole cost and expense. If Tenant fails to remove the same,
Landlord may cause them to be removed at Tenant's expense, and Tenant hereby
agrees to reimburse Landlord for the cost of such removal together with all
and any damages which Landlord may suffer and sustain by reason of failure of
Tenant to remove the same. At Landlord' election, any or all of the Tenant TI
Work, alterations, installations, changes, replacements, additions to, or
improvements made by Tenant upon the Premises shall remain at the termination
of this Lease and not be removed. Tenant shall surrender to Landlord all keys
for the Premises at the place then fixed for the payment of rent and shall
notify Landlord in writing of all combinations of locks, safes, and vaults,
if any, in the Premises. Tenant's obligation to observe and perform
17
the covenants set forth in this Section shall survive the expiration or
earlier termination of this Lease.
(c) At the termination of this Lease, Tenant shall immediately remove all
personal property which it owns and is permitted to remove from the Premises
under the provisions of this Lease, and failing to do so, Landlord at its
option may either (i) cause that personal property to be removed at the risk
and expense of Tenant (1)0th as to loss and damage), and Tenant hereby agrees
to pay all reasonable costs and expenses incurred thereby, including sums
paid to store the personal property elsewhere and the cost of any repairs to
the Premises caused by the removal of the property, or (ii) upon twenty (20)
days' written notice to Tenant, which the parties agree is commercially
reasonable, sell at public or private sale any or all such personal property,
whether exempt or not from sale under execution or attachment (such property
being deemed charged with a lien in favor of Landlord for all sums due
hereunder), with the proceeds to be applied as set forth in Sub-section 28
(a), or (iii) at Landlord's option, title shall pass to Landlord.
SECTION 18
VACATING OR ABANDONING THE PREMISES OR PERSONAL PROPERTY
Tenant and or any Subtenant shall have the right to vacate the Premises
for a period not exceeding six (6) months, provided that Tenant first pays to
Landlord upon demand, as Additional Rent, the cost of any additional premium
resulting from Landlord's obtaining a "vacancy permit" endorsement to
Landlord's insurance policy. Tenant shall provide at least thirty (30) days'
prior written notice of any intent to vacate the Premises, to provide
sufficient time to Landlord to obtain such an endorsement. Should Tenant not
comply with the above procedure, by Tenant to provide appropriate notice, by
failing to pay the cost of the said endorsement, and/or by vacating the
Premises for a period longer than six (6) months, the Premises shall be
considered as being abandoned by Tenant. If Tenant does abandon the Premises
or is dispossessed by process of law, any personal property belonging to
Tenant left on the Premises may, at the option of Landlord, be deemed to have
been abandoned by Tenant, and the provisions of subsection 17(c) shall apply.
SECTION 19
QUIET ENJOYMENT
Landlord warrants that Tenant shall be granted peaceable and quiet
enjoyment of the Premises free from any eviction or interference by Landlord
or any other party if Tenant pays the Annual Rent and Additional Rent
provided herein pursuant to the terms of this Lease, and otherwise fully
performs the terms, covenants, and conditions imposed herein. Landlord
represents and warrants that the Property is zoned M-3 Industrial. If
necessary from time to time during the Term, Landlord further agrees to
assist and cooperate in obtaining a use and occupancy permit to enable Tenant
or any Subtenant to use the Premises
18
for medical laboratory and ancillary storage and office space in differing
proportions from those set forth above and Landlord shall keep such use and
occupancy permit in full force and effect. Tenant shall reimburse Landlord
for any costs and expenses incurred by Landlord within five (5) days of
written demand. Landlord represents and warrants that the only present
restrictive covenants affecting the Premises are set forth in Exhibit C.
SECTION 20
INDEMNIFICATION AND WAIVER OF CLAIM
Tenant will defend and will indemnify Landlord, its partners, agents,
servants and employees, and save it and them harmless from and against any
and all claims, actions, damages, liability, costs, and expense (including
but not limited to, reasonable attorneys' fees and disbursements) in
connection with the loss of life, bodily injury, or damage to property or
business arising from, related to, or in connection with the occupancy or use
by Tenant or any assignee, subtenant, concessionaire, or licensee of the
Premises or any part of Landlord's personal property or the Premises,
Property or Building or occasioned wholly or in part by any act or omission
of Tenant or any assignee, subtenant, concessionaire, or licensee or its or
their contractors, subcontractors, or its or their agents or employees or
other persons on the Premises arising from events occurring after the
Commencement Date; provided, however, that such indemnification shall not
apply to the negligence or willful acts of Landlord or its contractors,
employees, invitees or subcontractors, or its or their agents or employees.
Tenant shall also pay all costs, expenses, and reasonable attorneys' fees
that may be expended or incurred by Landlord in enforcing the covenants and
agreements of this Lease should Landlord prevail in such action(s). The
provisions of this Section shall survive the termination or earlier
expiration of this Lease.
Landlord shall not be liable for, and Tenant, in consideration of
Landlord's execution of this Lease, hereby releases all claims against
Landlord for bodily injury, death, loss or property damage that may be
occasioned by or through the acts or omissions of other tenants, their
contractors and subcontractors and their agents, or employees.
Notwithstanding anything to the contrary contained in this Lease,
Landlord and Tenant do mutually each release and discharge the other, and all
persons against whom the insurance company or companies would have a right or
claim by virtue of subrogation, of and from all suits, claims, and demands
whatsoever, for loss or damage to the property of the other, even if caused
by or occurring through or as a result of any negligent act or omission of
the party released hereby or its contractors, subcontractors, agents, or
employees, so long as and to the extent that such loss or damage is covered
by insurance benefiting the party suffering such loss or damage or was
required to be so covered under this Lease. Each party further agrees that
each at its own cost will cause its policies of insurance for fire and
extended coverage to be so written as to include a waiver of subrogation by
causing such policies to contain a clause in substantially the following form:
19
It is hereby stipulated that this insurance shall not be invalidated
should the insured or any of them waive in writing prior to a loss any or
all right of recovery against any person or entity for loss occurring to
the property described herein.
The provisions of this Section 20 shall survive the termination or
earlier expiration of the Term of this Lease with respect to any loss,
damage, injury, or death occurring prior to such termination.
SECTION 21
INSURANCE OF TENANT
(a) Tenant will keep in force, or cause to be kept in force, with
companies licensed to do business in the State of Maryland and which have a
policyholder's rating of A or better and a financial size rating of X or
larger from Best's Key Rating Guide, Property Casualty Reports (or comparable
insurance rating service), at Tenant's expense at all times during the Term
of this Lease and during such other times as Tenant occupies the Premises or
any part thereof:
(i) Commercial general liability insurance written on an occurrence basis
with respect to the Premises and the business operated by Tenant and any
Subtenants, concessionaires, or licensees of Tenant in the Premises with
minimum combined single limits of Five Million Dollars ($5,000,000.00) per
occurrence and in the aggregate. Such liability insurance shall, in addition,
extend, through contractual liability insurance, to any liability of Tenant
arising out of the indemnities provided in Section 20 and shall be subject to
the waiver of subrogation specified therein. Such liability insurance shall
also include broad form endorsement coverage, including personal injury
coverage.
(ii) Fire insurance with standard broad form extended coverage
endorsement covering all of Tenant's furniture, furnishings, such equipment
as is not affixed to the Premises, and signs.
(iii) Workers' compensation insurance for all employees of the Tenant in
such amount as is required by law.
(iv) During any period of construction of the Tenant TI Work, builder's
risk insurance (non-reporting form) of the type customarily carried in the
case of similar construction for the full replacement cost of work in place
and materials stored at or upon the Premises.
(v) During any period of construction of the Tenant TI Work, Tenant shall
require any contractor of Tenant performing such work to keep in force, at
contractor's expense, comprehensive general liability insurance, including
contractor's liability coverage, contractual liability coverage, completed
operations coverage, broad form property damage
20
endorsement and contractor's protective liability coverage to afford
protection with minimum combined single limits of Five Million Dollars
($5,000,000.00) per occurrence and in the aggregate. Tenant shall also
require such contractors to keep in effect workers' compensation affording
statutory coverage
(vi) A hazardous material/environmental insurance policy listing Landlord
as a named insured protecting Landlord from any and all liability both on and
off site caused by, related to, or connected with Tenant and Subtenant's
operation of the Building and Premises; from an insurance company and under
terms and conditions of coverage acceptable to Landlord, providing coverage
limits of not less than Two Million Dollars ($2,000,000.00). In the event
that Landlord sells, transfers or conveys the Property to any third party
(not related to or affiliated with Landlord) the requirements of this Section
21 (a) (vi) shall terminate and expire upon the said sale, transfer or
conveyance to the third party.
(b) On or before the Commencement Date, Tenant will deposit with Landlord
policies of insurance required by the provisions of this Section together
with satisfactory evidence of payment of the required premiums thereof.
Failure to deposit such policies shall not relieve Tenant of its obligations
to obtain and keep in force insurance coverage required by this Lease. The
insurance required hereby may be maintained by means of a policy or policies
of blanket insurance so long as the provisions of this Lease are fully
satisfied and the required amounts are specifically allocated to the Premises
without possibility of determination because of occurrences on other
properties.
(c) All policies of insurance required to be carried by Tenant by this
Section 21 shall provide that the policy shall not be subject to
cancellation, termination, or change except after thirty (30) days prior
written notice to Landlord, and all such policies shall name Landlord as an
additional insured as its interest may appear. Tenant shall promptly pay all
premiums when due on all insurance required by this Section 21 and, not less
than thirty (30) days prior to the expiration dates of each such policy,
Tenant will deliver to Landlord a renewal policy or policies marked "premium
paid" or accompanied by other evidence of payment satisfactory to Landlord
which indicates that the insurance required by this Section 21 is in full
force ad effect. Tenant will immediately give Landlord notice of any
cancellation of, or change in, any insurance policy.
(d) If Tenant shall not comply with its covenants made in this Section
21, and provided that such failure shall continue for five (5) days or longer
after written notice to Tenant, Landlord, in addition to Landlord's other
remedies hereunder, may (but shall not be obligated to) cause insurance as
aforesaid, to be issued, and in such event Tenant agrees to pay the premium
for such insurance as Additional Rent within five (5) days after Landlord's
written demand.
21
SECTION 22
INSURANCE OF LANDLORD
(a) Landlord will keep in force with companies licensed to do business in
the State of Maryland, at Landlord's expense at all times during the Term of
this Lease and during such other times as Tenant occupies the Premises or any
part thereof:
(i) Commercial general liability insurance written on an occurrence basis
with respect to the Building, the Common Areas, and the Property with minimum
combined single limits of One Million Dollars ($1,000,000.00) per occurrence
and in the aggregate. Such liability insurance shall also include broad form
endorsement coverage including personal injury coverage.
(ii) All-risk casualty insurance for the replacement cost value of the
Building and improvements.
(b) On or before the Commencement Date, Landlord will deposit with Tenant
copies of policies of insurance required by the provisions of this Section 22
together with satisfactory evidence of the payment of the required premium or
premiums thereof. Each year during the Term of this Lease, Landlord shall
provide Tenant with evidence (satisfactory to Tenant) that the insurance
required by this Section 22 is in full force and effect. Failure to deposit
such policies shall not relieve Landlord of its obligations to obtain and
keep in force insurance coverage required by this Lease. The insurance
required hereby may be maintained by means of a policy or policies of blanket
insurance so long as the provisions of this Lease are fully satisfied and the
required amounts are specifically allocated to the Premises without
possibility of diminution because of occurrences or other properties.
(c) All policies of insurance required to be carried by Landlord by this
Section 22 hereof shall provide that the policy shall not be subject to
cancellation, termination, or change except after thirty (30) days' prior
written notice to Tenant, and all such policies shall name Tenant as a
certificate holder. Landlord shall promptly pay all premiums when due on all
insurance required by this Section 22 and, Landlord will deliver to Tenant a
renewal policy or policies marked "Premium paid" or accompanied by other
evidence of payment satisfactory to Tenant which indicates that the insurance
required by this Section 22 is in full force and effect. Landlord will
immediately give Tenant notice of any cancellation of, or change in, any
insurance policy.
(d) If Landlord shall not comply with its covenants made in this Section
and such failure shall continue for five (5) days or longer after written
notice from Tenant, Tenant may (but shall not be obligated to) cause
insurance as aforesaid to be issued, and in such event Landlord agrees to
reimburse Tenant for the premium for such insurance promptly upon Tenant's
demand, and if Landlord does not do so Tenant may subtract such amount from
the next monthly installment(s) of Rent due hereunder.
22
(e) Tenant shall pay, or cause to be paid, as Additional Rent the
following: Landlord shall provide Tenant with a copy of the insurance premium
for the insurance referred to in Section 22(a)(ii) above each year during the
Term of this Lease and any Extension Term and Tenant shall pay the full
amount of such insurance cost to Landlord relating to Tenant's Premises and
Tenant's Pro Rata Share of any Common Areas, based upon the underwriting
breakdown of the insurance premium as provided by Landlord's insurance
carrier or agent.
SECTION 23
EFFECT ON INSURANCE
Tenant and any Subtenant will not do, omit to do, or suffer to be done or
keep or suffer to be kept anything in, upon or about the Property which will
violate the provisions of Landlord's policies insuring the Premises and the
Building against loss or damage by fire, or other hazards (including, but not
limited to, public liability), which will adversely affect Landlord's fire or
liability insurance premium rating or which will prevent Landlord from
procuring such policies in companies acceptable to Landlord. If anything
done, omitted to be done, or suffered to be done by Tenant and any Subtenant,
or kept or suffered by Tenant and any Subtenant to be kept in, upon or about
the Property shall cause the premium rate of fire or other insurance on the
Premises or the Property in companies acceptable to Landlord to be increased
beyond the established rate from time to time fixed by the appropriate
underwriters with regard to the use of the Premises for the purposes
permitted under this Lease or to the Property for the use or uses being made
thereof, Tenant will pay the amount of such increase as Additional Rent
within five (5) days of Landlord's demand in writing and will thereafter pay
the amount of such increase, as the same may vary from time to time, with
respect to every premium relating to coverage of the Premises and the
Property during a period falling within the Term of this lease until such
increase is eliminated. In addition, if applicable, Landlord may at its
option rectify the condition existing on the Property which is causing or is
a contributing cause of the increased premium rate in the event that the
Tenant should fail to do so, provided that such condition is not a permitted
use of the Premises as contemplated by this Lease, and Landlord may charge
the cost of such action to Tenant as Additional Rent, payable within five (5)
days of written demand together with the late charge specified in Section 4,
which shall accrue from the date that Landlord became obligated for the costs
of such action. In determining whether increased premiums are the result of
Tenant's use of the Premises or elsewhere on the Property, a schedule, issued
by the organization setting the insurance rate on the Premises and the
Property, showing various components of such rate, shall be conclusive
evidence of the several items and charges which make up the fire insurance on
the Premises and the Property.
If for any reason including, but not limited to, the abandonment of the
Premises, Tenant's failure to pay any insurance premium, or Tenant's failure
to occupy the Premises as herein permitted, Tenant fails to provide and keep
in force any or all of the insurance policies set forth in Section 21, then
in such event Tenant shall indemnify and hold Landlord harmless against any
loss which would have been covered by such insurance.
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SECTION 24
TOTAL OR PARTIAL DESTRUCTION OF PREMISES
(a) If the Premises are damaged by fire or other casualty but are not
thereby rendered untenantable in an amount in excess of fifty percent (50%)
of the entire Premises and such damage is, in the opinion of an independent
architect or consultant selected by Landlord, capable of being repaired using
reasonable diligence within one hundred and eighty (180) days after the loss,
Landlord, at its own expense, subject to the limitations set forth in this
Lease, shall cause such damage to be repaired, and the Annual Rent and
Additional Rent shall not be abated. If by reason of any damage or
destruction to the Premises wherein the Premises shall be rendered
untenantable in an amount in excess of fifty percent (50%) of the entire
Premises, (i) Landlord, at its own option, at its own expense, subject to the
limitations set forth in this Lease, may cause the damage to be repaired if
such damage, in the opinion of an independent architect or consultant
selected by Landlord, is capable of being repaired by using reasonable
diligence within one hundred and eighty (180) days after the loss, and the
Annual Rent and Additional Rent shall be abated proportionately as to the
portion of the Premises rendered untenantable while it is untenantable, or
(ii) Landlord shall have the right, to be exercised by notice in writing
delivered to Tenant within thirty (30) days from and after the occurrence of
such damage or destruction, to terminate this Lease, and the Annual Rent and
Additional Rent shall be adjusted as of the date of the occurrence of the
casualty giving rise to such loss. In no event shall Landlord be obligated to
expend for any repairs or reconstruction pursuant to this Section 24 an
amount in excess of the insurance proceeds, if any, recovered by it and
allocable to the damage to the Premises after deducting therefrom Landlord's
reasonable expenses in obtaining such proceeds and any amounts required to be
paid to Landlord's mortgagee.
(b) Tenant covenants and agrees that it will give written notice to
Landlord of any accident or damage, whether such accident of damage is caused
by insured or uninsured casualty, occurring in, on or about the Premises
within five (5) business days after Tenant has knowledge of the occurrence of
such accident or damage. If Tenant breaches its covenants set forth
hereunder, Landlord in addition to all other rights and remedies under this
Lease, at law or in equity shall, at its option, be relieved of any of its
obligations under this Section 24.
SECTION 25
ALTERATIONS
Except as permitted under Section 12, supra, Tenant agrees that it will
not make any alterations (whether structural or otherwise), improvements,
additions, repairs, or changes to the interior or exterior of the Premises
during the Term of this Lease without in each instance obtaining Landlord's
prior written consent. Together with each request for consent, Tenant shall
present to Landlord reasonably detailed plans and specifications for such
proposed alterations, improvements, additions, repairs or changes; provided,
however, approval of such plans and specifications by Landlord shall not
constitute any assumption of responsibility by Landlord for their accuracy of
sufficiency, and Tenant shall be solely
24
responsible for such items. All alterations, improvements, additions,
repairs, or changes shall be done either by or under the direction of
Landlord, but at the expense of Tenant. All alterations, improvements,
additions, repairs, or changes made by Tenant, shall, unless Landlord gives
notice to Tenant to remove the same, remain upon the Premises at the
expiration or earlier termination of the Term of this Lease and shall become
the Property of Landlord immediately upon installation thereof. The same
shall remain the property of Landlord (without any obligation of Landlord to
pay compensation therefor) unless Landlord gives Tenant written notice to
remove any or all of the aforesaid, in which event Tenant shall remove at
Tenant's expense such of the same as may be specified in Landlord's notice to
Tenant, and Tenant shall promptly restore the Premises to the same good order
and condition as it was at the commencement of the Term of this Lease except
(i) to the extent the Premises is not required to be repaired and/or
maintained by Tenant and (ii) damage by fire or other casualty to the extent
there is actually paid to Landlord, to repair any damage to the Premises,
sufficient net proceeds for policies of insurance which Tenant is obligated
to provide and to maintain under the provisions of this Lease. Should Tenant
fail to do so, Landlord may do so, collecting, at Landlord's option, the cost
and expense thereof from Tenant, as Additional Rent, upon demand.
Notwithstanding anything above, in Section 17 or elsewhere in this Lease
to the contrary, Landlord hereby permits Tenant to remove at the end of the
lease term, and as long as Tenant is not then in default or breach of any
material provision in this Lease, any non-structural improvements, provided
that Tenant and/or any Subtenant shall in each and every instance of removal
reasonably repair and restore the Premises to its functional shell condition.
SECTION 26
MECHANICS' LIEN
Tenant shall not do or suffer to be done any act, matter or thing whereby
Landlord's or Tenant's interest in the Premises, or any part thereof, may be
encumbered by any mechanics' lien. Tenant shall discharge or stay the
enforcement by bond or otherwise, within sixty (60) days after the date of
filing, any mechanics' liens filed against Tenant's interest in the Premises,
or any part thereof, purporting to be for labor or material furnished to
Tenant. Landlord may, at its option, discharge any such mechanics' lien not
discharged by Tenant within such sixty (60) day period, and Tenant, within
five (5) days of written demand, shall reimburse Landlord for any such
reasonable expense incurred by Landlord. Any reasonable monies expended by
Landlord shall be deemed Additional Rent, collectible as such by Landlord and
the late charge specified in Section 4 shall accrue from the date Landlord
becomes obligated for such expenses. Landlord shall not be liable for any
labor or materials furnished or to be furnished to Tenant upon credit, and no
mechanics' or other lien for labor or materials shall attach to or affect the
reversionary or other estate or interest of Landlord in and to the Premises
or the Building.
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SECTION 27
BREACH OR DEFAULT
Tenant shall have breached this Lease and shall be considered in default
hereunder if (a) Tenant files a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy or insolvency law or act, or makes an
assignment for the benefit of creditors; (b) involuntary proceedings are
instituted against Tenant under any bankruptcy or insolvency law or act and
the same are not set aside within ninety (90) days; (c) Tenant fails to pay
any Annual Rent, Monthly Installment of Annual Rent, or Additional Rent
within five (5) days from written notice from Landlord; (d) Tenant fails to
perform or comply with any of the covenants or conditions of this Lease or
the rules and regulations now or hereinafter established for the Premises,
Building or Property within thirty (30) days after written notice thereof,
provided that if the failure is not capable of being cured within thirty (30)
days, Tenant shall have such additional time as reasonably required if within
such thirty (30) day period Tenant commences the cure and thereafter
diligently pursues the same to completion; and/or (e) the Premises are
abandoned by Tenant in violation of the applicable provisions of this Lease.
SECTION 28
EFFECT OF BREACH
(a) In the event of a breach of this Lease as set forth in Section 27,
Landlord shall have the option to do any of the following in addition to and
not in limitation of any other remedy permitted by law or by this lease: (i)
to re-enter the Premises, using force if necessary, to dispossess Tenant and
all other occupants from the Premises and to remove any or all of Tenant's
property at the Premises; (ii) to store Tenant's property in a public
warehouse or elsewhere at the cost, risk, and expense of Tenant, without
Landlord's being deemed guilty of trespass or becoming liable for any loss or
damage, which may occur on Tenant's property; and (iii) upon thirty (30)
days' written notice to Tenant, which the parties agree is commercially
reasonable, to sell at public or private sale any or all of said property,
whether exempt or not from sale under execution or attachment (such property
being deemed charged with a lien in favor of Landlord for all sums due
hereunder), with the proceeds of sale to be applied: first, to the costs and
expenses of retaliating, removal, storage, preparing for sale, and sale of
the property (including reasonable attorneys' fees); and second, to the
payment of any sum due hereunder to Landlord (including Rent, Additional
Rent, charges, and damages, both theretofore and thereafter accruing); and,
third, any surplus to Tenant.
(b) Further, upon the occurrence of any such breach, Landlord, in
addition to any other remedies it may have at law, in equity, by statute, or
under any other provision of this Lease, shall have the right to terminate
this Lease, as well as all right, title, and interest of Tenant hereunder, by
giving to Tenant not less than thirty (30) days' advance written notice of
Landlord's election to cancel and to terminate this Lease. Upon the
expiration of this time fixed in the notice of termination, this Lease and
the balance of the Term then remaining, as well as all of the right, title,
and interest of Tenant under this Lease, shall expire in the same manner and
with the same force and effect (except for the Tenant's liability as
hereinafter set
26
forth) as if the expiration of the time fixed in the notice of termination
was the date upon which the Term would normally have expired. Tenant shall
then immediately quit and surrender the Premises and each and every part
thereof to Landlord, and Landlord may enter upon the Premises, by force,
summary proceedings, or otherwise. In any of such events, Landlord shall be
entitled to the benefit of all provisions of the ordinances and public local
laws of the city or county where the Property is located and of the Public
General Laws and tenements held over by tenants or proceedings in forcible
entry and detainer. Upon any entry or re-entry by Landlord, with or without
legal process, Landlord shall also have the right but not the obligation) to
relate all or part of the Premises, from time to time, at the risk and
expense of Tenant. No re-entry by Landlord with or without a declaration of
termination shall be deemed to be an acceptance or a surrender of this Lease
or as a release of the Tenant's liability for damages under the provisions of
this Section.
(c) Tenant further agrees (i) notwithstanding re-entry by Landlord with
or without termination pursuant to the provisions of Sub-section (a) of this
Section, or (ii) if this Lease is otherwise terminated by reason of Tenant's
default, or (iii) if Landlord retakes possession with or without process of
law and/or re-enters with or without a declaration of termination, or (iv) if
Landlord, following any of the foregoing events, elects to let or relate the
Premises (whether once or more than once during the remainder of the Term,
and upon such conditions as are satisfactory to Landlord) that Tenant shall,
nevertheless, in each instance, remain liable for the performance of any
covenant of this Lease then in default and for all Rent and all other charges
and damages which may be due or sustained before and after the date of
default, together with the cost of seizure and repossession of the Premises
and reasonable attorneys' fees incurred by Landlord as a result of the breach
of this Lease.
(d) In any of the events described in the preceding Sub-section, Tenant
agrees that it will remain liable to Landlord for liquidated damages to be
calculated and paid as follows: Tenant shall pay an amount of money equal to
the total amount of Rent and all other payments and charges which would have
become payable during the unexpired portion of the Term remaining at the time
of re-entry, repossession, or termination, less the net amount of Rent, if
any, received by Landlord during the remaining Term from others to whom the
Premises may be rented, at such times, upon such terms and conditions and at
such rentals as Landlord shall deem proper.
(e) In connection with any such relating(s), Landlord shall have the
absolute right, without such actions being or being deemed to be a surrender
of its rights or as a termination of this Lease or as a release of the
Tenant's liability hereunder for the balance of the Term or Extension Term,
to let or relet the Premises for a longer or shorter term than that remaining
after Tenant's default, to lease more or less area than that contained in the
Premises, to lease the Premises together with other premises or property
owned or controlled by Landlord, and to change the character or use of the
Premises. Landlord shall deduct from any amounts received from any such
letting or reletting (i) first, all reasonable costs and expenses incurred in
connection with Tenant's default, including, but not limited to, the cost to
repair, restore, renovate, or decorate the Premises for a new Tenant,
reasonable attorneys' fees, real estate commissions, the cost of any legal
actions brought against Tenant, and other costs reasonably incurred, and then
(ii) Landlord shall deduct all Monthly Installments of Annual Rent and
Additional Rent due hereunder. Tenant shall continue to be responsible for
27
and liable for any deficit created thereby, and Landlord shall retain and
apply and surplus until all such liquidated damages shall have been paid in
full to Landlord. The liquidated damages shall be payable in monthly
installments, in advance, on the first day of each calendar month following
re-entry, with or without termination, and shall continue until the date
fixed herein as the normal expiration date of the Term of this Lease. In no
event shall Tenant be entitled to receive any portion of the amounts received
by Landlord in connection with the letting or reletting of the Premises.
(f) No entry or re-entry by Landlord, whether had or taken under summary
proceedings or otherwise, nor any letting or reletting shall absolve or
discharge Tenant from liability hereunder. Tenant's liability hereunder, even
if there be no letting or reletting, shall survive the issuance of any
dispossess warrant, order of court terminating this Lease, or any other
termination based upon Tenant's default. The words "enter", "re-enter", and
"reentry" as used in this Section and elsewhere in this Lease are not
restricted to their technical legal meanings.
(g) Suit or suits for the recovery of such deficiency or damages or for a
sum equal to any Monthly Installment or Installments of Annual Rent and
Additional Rent and other charges payable hereunder may be brought by
Landlord from time to time, at Landlord's election. Nothing herein contained
shall be deemed to require Landlord to await the date when this Lease or the
Term would have normally expired had there been no such default by Tenant or
no such termination by Landlord, nor shall Landlord be barred by any claim
involving a statute of limitations or other defense should Landlord delay in
filing suit.
(h) No payment received by Landlord from Tenant after re-entry or the
termination of this Lease in any lawful manner shall reinstate, continue or
extend the Term of this Lease or affect any notice theretofore given to
Tenant by Landlord or operate as a waiver of the right of Landlord to recover
possession of the Premises by proper suit, action, proceedings, or other
remedy.
(i) In the event Tenant fails to vacate the Premises at any time after
termination of this Lease as provided above, Tenant shall pay double Rent and
double Additional Rent for such holdover period.
(j) Nothing in this Section shall limit or prejudice the right of
Landlord to prove and to obtain, as liquidated damages by reason of a
termination arising out of the provisions of this Section, an amount equal to
the maximum allowed by any statute or rule of law in effect as of the time
when, and governing the proceedings in which such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amount of
liquidated damages computed under this Section.
(k) Landlord agrees that it shall use such efforts to relet the Premises
and to mitigate damages and liability of Tenant as are required by any
applicable laws, regulations or statutes.
(l) Notwithstanding anything to the contrary contained in this Lease,
after the occurrence of a default by Tenant under the terms or conditions of
this Lease, and prior to
28
termination of this Lease under Section 28(b) above, Landlord hereby agrees
that MIDFA and/or Bondholder shall have the right to cure such default of
Tenant under this Lease, and Landlord agrees that it will not exercise any of
its rights or remedies provided for in this Lease or under applicable law
arising from the breach against Tenant until the expiration of the time for
termination fixed in the notice of termination as required above.
SECTION 29
ACCESS BY LANDLORD
(a) Landlord and its contractors and subcontractors, and its or their
agents and employees may at all reasonable times and with at least
twenty-four (24) hours notice during the Term of this Lease enter to inspect
the Premises and/or may show the Premises and Property to others, provided
that such entrance is consistent with Tenant's or any Subtenant's security
obligations. In the event of notice of termination of this Lease or during
the last three (3) months of the Term, unless Tenant has thereto before
properly exercised any remaining option to extend this Lease, Landlord shall
have the right from the date of such notice to display (but not so as to
unreasonably obstruct the view thereof or access thereto) the customary "For
Rent" sign, and Landlord may show the Premises and all parts thereof to
prospective tenants during Normal Business Hours.
(b) Landlord also reserves the right after reasonable notice of intention
to so enter (except that in the event of an emergency, no notice shall be
required) to enter the Premises at any time and from time to time to make
such repairs, additions, or alterations as it may deem necessary for the
safety, improvement, or preservation thereof, or of the Property, but
Landlord assumes no obligation to do so, and the performance thereof by
Landlord shall not constitute a waiver of Tenant's default in failing to
perform the same. Landlord shall in no event be liable for any inconvenience,
disturbance, loss of business, or other damage to Tenant by reason of the
performance by Landlord of any work in, upon, above, under, or outside the
Premises, unless such performance materially interferes with Tenant's or any
Subtenant's business or activities and arises solely from the negligence or
willful misconduct of Landlord or Landlord's agents, servants or employees.
If Tenant shall have vacated or abandoned the Premises, or in the event of an
emergency, or if in any other instance after Landlord has given notice of
Landlord's intention to enter, Tenant or Tenant's agents or employees shall
not be personally present to permit an entry into the Premises, then in such
event, Landlord and its contractors and subcontractors and its or their
agents and employees may enter the same by the use of force or otherwise
without rendering Landlord liable therefor, and without in any manner
affecting Tenant's obligations under this Lease.
(c) If during the last months of the Term, Tenant has vacated the
Premises and removed all or substantially all of its personal property,
Landlord may immediately enter and alter, renovate, and redecorate the
Premises. The exercise of any such reserved right by Landlord shall not be
deemed an eviction or disturbance of Tenant's use and possession of the
Premises and shall not render Landlord liable in any manner to Tenant or to
any other person, nor shall the same constitute any grounds for an abatement
of Rent hereunder.
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SECTION 30
ASSIGNMENT AND SUBLETTING
(a) Tenant shall not make or permit an Assignment of this Lease or any
interest of Tenant herein, in whole or in part, by operation of law or
otherwise, without first obtaining in each and every instance the prior
written consent of Landlord, which consent may be withheld at the sole and
absolute discretion of Landlord.
(b) Any consent by Landlord to an Assignment shall be held to apply only
to the specific transaction thereby authorized and shall not constitute a
waiver of the necessity for such consent to any subsequent Assignment,
including, but not limited to, a subsequent Assignment by any trustee,
receiver, liquidator, or personal representative of Tenant. In the event
Tenant executes an agreement to effect an Assignment, such agreement shall
provide (i) that the tenant, subtenant or other occupier of space shall take
subject to this Lease, (ii) that the occupier shall also fulfill all
obligations of Tenant under this Lease as they pertain to the portion of the
Premises set forth in the Assignment, and (iii) that with respect to such
portion of the Premises, the occupier shall be deemed to be the Tenant under
this Lease.
(c) If this Lease or any interest herein be assigned without Landlord's
prior written consent having been obtained thereto, Landlord may nevertheless
collect Rent (including Additional Rent) from the assignee, and apply the net
amount collected to the Rents herein reserved. No such Assignment or
collection shall be deemed a waiver of the covenant herein against Assignment
by others, or the acceptance of the assignee, as Tenant hereunder, or
constitute a release of Tenant from the further performance by Tenant of the
terms and provisions of this Lease.
If this Lease or any interest of Tenant herein be assigned or if the
whole or any part of the Premises be sublet or used or occupied by others,
after having obtained Landlord's prior written consent thereto, Tenant shall
nevertheless remain fully liable for the full performance of all obligations
under this Lease to be performed by Tenant, and Tenant shall not be released
therefrom in any manner, unless otherwise expressly agreed to by Landlord in
writing.
(d) If Tenant is a corporation and if at any time during the Term of this
Lease any part or all of the corporate shares of Tenant, or of a parent
corporation of which Tenant is a direct or indirect subsidiary, shall be
transferred by sale, assignment, bequest, inheritance, operation of law, or
other disposition so as to result in a change in the present effective voting
control of Tenant or of such parent corporation by the person or persons
owing or controlling a majority of the shares of Tenant or of such parent
corporation on the date of this Lease, Tenant shall promptly notify Landlord
in writing of such change, and such change in voting control shall constitute
an Assignment of this Lease for all purposes of this Section; provided,
however, that this provision shall not apply in the event that as of the date
of this Lease over fifty percent (50%) of the voting power of the Tenant
corporation or of such parent corporation is held by fifty (50) or more
unrelated shareholders or distributed to such number of unrelated
shareholders in a public distribution of securities.
30
(e) If Tenant is a partnership and if at any time during the Term of this
Lease any person or entity which at the time of the execution of this Lease
owns a general partner's interest ceases to own such general partner's
interest, such cessation of ownership shall constitute an Assignment for all
purposes of this Section, and Tenant shall promptly notify Landlord in
writing of such change.
(f) Landlord hereby consents to Tenant's sublease of the Premises (or the
sub-sublease or assignment of any sublease by any Subtenant) to one or more
third parties who intend to use the Premises (or a portion thereof) for
laboratory space in connection with medical research, biomanufacturing,
biotech-related research, or office space in connection with the foregoing.
In addition, Landlord hereby consents to the sublease between Tenant and
Osiris Therapeutics, Inc. As to subleases (or sub-subleases or assignments of
subleases by any Subtenant) to third parties not in the medical research,
biotech-related research, biomanufacturing or office usage industry, Tenant
and Subtenant must first obtain in each and every instance the prior written
consent of Landlord for such sublease/assignment/sublease. As to any and all
subleases/assignments/sub-subleases entered into by Tenant or Subtenant (as
the case may be) as to all or any portion of the leased Premises, Tenant and
Subtenant shall provide in any indemnification, release from liability,
defense and/or hold harmless agreements or provisions given by the Subtenants
(or other occupant of the space) for the benefit of Tenant or Subtenant (as
the case may be), that Landlord, its partners, agents, servants and
employees, also be included as benefited, protected or released parties on
the same basis as Tenant. In addition, as to any insurance policies required
of any Subtenant (or other occupant of the space) in any and all subleases,
should Tenant require that Subtenant's policy to name Tenant as an additional
insured, Tenant shall provide in the sublease that Subtenant's insurance
policy name Landlord as an additional insured on the same basis as Tenant
(and likewise Subtenant shall require Sub-subtenant or Assignee to so name
Landlord).
SECTION 31
CONDEMNATION
If the whole of the Premises shall be taken by a public or quasi-public
authority under the power of eminent domain, condemnation, or expropriation
or in the event of a conveyance in lieu thereof, then this Lease shall
terminate as of the date on which possession of the Premises is required to
be surrendered to the condemning authority, and Tenant shall have no claim
against Landlord for the value of the unexpired Term of this Lease.
If any part of the Premises shall be so taken or conveyed, and if such
partial taking or conveyance shall render the Premises unsuitable for the
business of Tenant or any Subtenant in the reasonable opinion of Landlord,
then the Term of this Lease shall cease and Terminate as of the date on which
possession of the part of the Premises so taken or conveyed is required to be
surrendered to the condemning authority, and Tenant shall have no claim
against Landlord for the value of any unexpired Term of this Lease. In the
event such partial taking or conveyance is not extensive enough to render the
Premises unsuitable for the business of Tenant, this Lease shall continue in
full force and effect except that the Annual Rent shall be reduced in the
same proportion that the floor area of the Premises so taken or
31
conveyed bears to such floor area immediately prior to such taking or
conveyance, such reduction commencing as of the date Tenant is required to
surrender possession of such part of the Premises so taken or conveyed.
Landlord shall promptly restore the Premises, to the extent of condemnation
proceeds available for such purpose, as nearly as practicable to a condition
comparable to its condition at the time of such condemnation less the part
lost in the taking or conveyance, and thereafter Tenant shall promptly make
all necessary repairs, restoration, and alterations of Tenant's fixtures,
equipment, and furnishings and shall promptly reenter the Premises. For
purposes of determining the amount of funds available for restoration of the
Premises from the condemnation awarded, said amount will be deemed to be that
part of the award which remains after payment of Landlord's reasonable
expenses incurred in recovering the condemnation award and any amounts due to
Landlord's Mortgagee, and which represents a portion of the total sum so
available (excluding any award or other compensation for land) which is
equitably allocable to the Premises.
In the event of any condemnation or taking as herein before provided,
whether whole or partial, the Tenant shall not be entitled to any part of the
award granted to Landlord as damages or otherwise for such condemnation, and
Landlord and Landlord's Mortgagee are to receive the full amount of such
award as their respective interests may appear.
Although all damages awarded to Landlord in the event of any condemnation
are to belong to the Landlord and Landlord's Mortgagee as aforesaid, whether
such damages are awarded as full compensation for diminution in value of the
leasehold or the fee of the Premises, Tenant shall have the right, to the
extent that same shall not diminish the Landlord's or such Mortgagee's award
to claim, recover from the condemning authority, but not from Landlord or
such Mortgagee, such compensation as may be separately awarded or recoverable
by Tenant under law, in Tenant's own right for or on account of, and limited
solely to, any cost to which Tenant might be put in removing Tenant's
furniture, fixtures, leasehold improvements, and equipment.
SECTION 32
EXECUTION OF ESTOPPEL CERTIFICATE
At any time, and from time to time, upon the written request of either
party hereto or any Mortgagee, Tenant, within twenty (20) days of the date of
such written request, agrees to execute and deliver to such requesting party,
without charge and in a form satisfactory to such requesting party, a written
statement: (a) ratifying this Lease; (b) confirming the commencement and
expiration dates of the Term of this Lease; (c) certifying that Tenant is in
occupancy of the Premises, and that the Lease is in full force and effect and
has not been modified, assigned, subleased, supplemented, or amended except
by such writings as shall be stated; (d) certifying that all conditions and
agreements under this Lease to be satisfied or performed by the other party
have been satisfied and performed except as stated; (e) certifying that the
other party is not in default under the Lease and there are no defenses,
setoffs, recoupments, or counterclaims against the enforcement of this Lease
by the other party, or stating the defaults, defenses, set-offs, recoupments,
and/or counterclaims, claimed by the other party; (f) reciting the amount of
advance Rent, if any, paid by Tenant and the date to which such Rent has been
paid; (g) reciting the amount of security deposited with Landlord,
32
if any; and (h) containing any other information which Landlord or Tenant or
the Mortgagee shall reasonably require.
SECTION 33
NON-DISTURBANCE, SUBORDINATION AND ATTORNMENT
(a) Tenant agrees: (i) that this Lease is, and all of Tenant's rights
hereunder are and shall always be, subject and subordinate to any Mortgage
now existing or hereafter given by Landlord and to all advances made or to be
made thereunder and to the interest thereon, and all renewals, replacements,
modifications, consolidations, or extensions thereof; and (ii) that if any
Landlord's Mortgagee or if the purchaser at any foreclosure sale or at any
sale under a power of sale or assent to decree contained in attorn to, and
recognize such Mortgagee or purchaser, as the case may be, as Landlord under
this Lease for the balance then remaining of the Term of this Lease, subject
to all terms of this Lease; and (iii) that the aforesaid provisions shall be
self-operative, and no further instrument or document shall be necessary
unless required by any such Mortgagee or purchaser.
(b) Notwithstanding anything to the contrary set forth above, any
Landlord's Mortgagee may at any time subordinate its Mortgage to this Lease,
without Tenant's consent, by execution of a written document subordinating
such Mortgage to this Lease to the extent set forth therein, and there upon
this Lease shall be deemed prior to such Mortgage to the extent set forth in
such written document without regard to their respective dates of execution,
delivery and/or recording. In that event, to the extent set forth in such
written document, such Mortgagee shall have the same rights with respect to
this Lease as though this Lease had been executed and this Lease or
memorandum thereof recorded prior to the execution, delivery, and recording
of the Mortgage. Should Landlord or any Mortgagee or purchaser desire
confirmation of either such subordination or such attornment, as the case may
be, Tenant upon written request, and from time to time, will execute and
deliver without charge and in form satisfactory to Landlord, the Mortgagee,
or the purchaser all instruments and/or documents that may be requested to
acknowledge such subordination and/or agreement to attorn, in recordable
form, within fifteen (15) days of such request.
(c) Tenant agrees that no Landlord Mortgagee, Landlord
Mortgagee-in-possession, or purchaser shall be bound by any payment of Rent
made more than thirty (30) days prior to its due date, and any such sum shall
be due and payable on the due date. Tenant further agrees that no Landlord's
Mortgagee, Landlord's Mortgagee-in-possession, or purchaser shall be
responsible for the Security Deposit or other similar funds in respect to
this Lease not actually paid to it.
(d) In the event that Tenant fails to execute and deliver the instruments
and documents as provided for in this Section within the time period set
forth herein, Tenant docs hereby make, constitute, and appoint Landlord or
such Mortgagee or purchaser, as the case may be, as Tenant's attorney-in-fact
and in its name, place and stead to do so. The aforesaid power of attorney is
given as security coupled with an interest and is irrevocable.
33
(e) So long as no default as set forth in Section 27 has occurred which
has continued to exist for such period of time (after notice and cure period,
required by this Lease) as would entitle Landlord to terminate this Lease or
would cause, without any further action of Landlord, the termination of this
Lease, this Lease shall not be terminated, nor shall Tenant's use, possession
or enjoyment of the Premises be interfered with, nor shall the leasehold
estate granted by this Lease be affected in any other manner, in any
foreclosure or any action or proceeding instituted under or in connection
with the Mortgage (or any other mortgage, deed of trust, security agreement
or lien instrument of any type or nature) or, in case Mortgagee (or any
secured party or beneficiary under any of the foregoing) takes possession of
the Premises pursuant to any provision of the Mortgage. Upon the request of
Tenant, Landlord agrees to use its reasonable efforts to have any Mortgagee
execute a document to this effect.
(f) If Landlord transfers title to the Property, Tenant shall attorn to
such transferee, provided that the transferee fully assumes Landlord's
covenants and obligations under this Lease and recognizes Tenant's right
under this Lease, and Tenant shall continue to perform Tenant's obligations
under this Lease.
SECTION 34
SIGNS AND ADVERTISING
Tenant and/or any Subtenant shall not inscribe, paint, affix, or display
any sign, notice, or advertisement on any of the windows, doors, walls, or
any part of the outside of the Premises and the remainder of the Property
without the prior written consent of Landlord. Any installation of the same
shall be under the supervision of Landlord. Tenant shall have full
responsibility to maintain such signs and also to remove such signs at the
termination of this Lease and to restore the Building or the Premises to its
state before the placing of said signs, reasonable wear and tear excepted.
SECTION 35
RULES AND REGULATIONS
Landlord reserves the right from time to time to adopt and promulgate
reasonable rules and regulations applicable to the Building and the Property,
and to supplement such rules and regulations, and Tenant agrees to be bound
thereby provided the same are not inconsistent with this Lease or any
applicable law or regulation. Notice of such rules and regulations and of any
amendment and supplements thereto shall be given to Tenant, and Tenant agrees
thereupon to comply with and observe all such rules and regulations. A breach
of any of such rules and regulations, whether now existing or hereinafter
adopted, shall be deemed a breach of this Lease. Landlord shall not adopt or
promulgate any rules or regulations which materially interfere with Tenant's
or any Subtenant's use of the Premises.
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SECTION 36
PARKING SPACES
Landlord shall make available for Tenant's and any Subtenant's
non-exclusive use the Parking Spaces free of charge.
At Landlord's written request, Tenant shall provide Landlord with the
license plate number, year, make and model of the automobiles entitled to use
the Parking Spaces, and if requested by Landlord, such automobiles shall be
identified by stickers provided by Landlord, and only such designated
automobiles shall be entitled to use the Parking Spaces.
Except for its obligations to maintain the Common Areas as stated in
Section 11, supra, Landlord assumes no responsibility or liability to Tenant
or any Subtenant, their agents, servants, invitees, or employees of any kind
whatsoever from any cause with respect to the use of the Parking Spaces or
other parking spaces, adjoining streets, sidewalks, driveways, property, and
passage ways, or the use thereof of anyone entitled to use the area.
SECTION 37
PURCHASE OPTION/RIGHT OF FIRST REFUSAL
(a) At any time prior to the fourth (4th) anniversary date of the Rental
Commencement Date, Tenant and/or any Subtenant shall have the option to
purchase the Building and Property from Landlord upon written notice to
Landlord subject to the following terms and conditions:
(i) The purchase price for the Building and Property shall be as
follows:
(a) If the option is exercised on or before June 30, 1996, the sum
of Six Million and Sixty-Five Thousand Dollars ($6,065,000.00);
(b) If the option is exercised after June 30, 1996, but on or
before June 30, 1997, the sum of Six Million Three Hundred Sixty-Eight
Thousand Two Hundred and Fifty Dollars ($6,368,250.00);
(c) If the option is exercised after June 30, 1997, but on or
before June 30, 1998, the sum of Six Million Six Hundred Eighty-Six Thousand
Six Hundred and Sixty-Three Dollars ($6,686,663.00).
(ii) Settlement for the purchase and sale of the Premises shall be
held in a place designated by Tenant and/or Subtenant in Baltimore City and
at a time designated by Tenant and/or Subtenant, provided that settlement
shall be held within ninety (90) days after exercise of the option by Tenant
and/or Subtenant.
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(iii) The Rent shall cease and shall be adjusted as of the date of
settlement. Water rent, real property taxes, and all other public or
governmental charges or assessments shall be adjusted as of the date of
settlement.
(iv) At settlement, Landlord shall execute and deliver to Tenant or
Subtenant, at Tenant's or Subtenant's expense, a fee simple deed containing
covenants of special warranty and further assurances, which shall convey good
and merchantable title to the Building and Property, subject only to (a) all
building, zoning, and applicable ordinances and regulations of governmental
authorities having jurisdiction over the Property; (b) all easements,
restrictions, rights, agreements, covenants, encumbrances and conditions of
record and/or shown on any recorded Plat for the Property; (c) all liens for
real property taxes and assessments due and payable following the date of
Closing; (d) all existing utility and drainage easements and rights-of-way;
(e) all facts and matters which an accurate survey and/or inspection of the
Property would show; and (f) all existing leases (other than the present
Lease).
(v) Recordation and transfer taxes shall be paid by the Tenant and/or
Subtenant (purchaser)
(vi) Recording fees shall be paid by the Tenant and/or Subtenant
(purchaser).
The purchase option set forth above is subject to termination by Landlord
upon thirty (30) days of Landlord giving an Offer Notice (as hereinafter
defined) in the event Landlord makes or receives an Acceptable Offer (as
hereinafter defined) prior to Tenant and/or Subtenant exercising the
above-noted purchase option. Nevertheless, during such thirty (30) day period
Tenant and/or Subtenant shall have the right of first refusal to purchase the
Building and Property, or any portion thereof, as hereinafter more fully set
forth:
(b) In the event that (i) Landlord should decide to sell, convey, or
transfer the Building and Property, or any portion thereof, and (ii) Landlord
should make or receive an offer therefor that Landlord deems satisfactory to
it and is satisfactory to a third party (hereinafter referred to as an
"Acceptable Offer"), then Landlord shall send to Tenant and any Subtenant a
duplicate copy of the Acceptable Offer together with a notice stating that
Landlord intends to accept the same (hereinafter referred to as the "Offer
Notice"). Within thirty (30) business days of Landlord's giving Tenant and
any Subtenant an Offer Notice, Tenant and any Subtenant shall have the right
to advise Landlord in writing that Tenant and/or any Subtenant desires to
purchase the Building and Property, or portion thereof, in accordance with
the Acceptable Offer.
(c) If Tenant or any Subtenant advises Landlord in a timely fashion that
it desires to purchase the Building and Property, or portion thereof, in
accordance with the Acceptable Offer, Landlord and Tenant or Subtenant shall
promptly enter into a contract of sale for the Building and Property, or
portion thereof, in accordance with the provisions of the Acceptable Offer;
provided that the contract of sale shall provide that the Lease shall
terminate as of the day of settlement of the contract of sale, with all Rent
payable under this Lease to be adjusted as of such date unless Tenant or
Subtenant elects that the sale shall be
36
subject to the terms, covenants, and conditions of this Lease (other than the
provisions of this Section 37).
(d) If Tenant or Subtenant advises Landlord in a timely fashion that it
does not desire to purchase the Building and Property, or portion thereof, in
accordance with the Acceptable Offer, or if Tenant or Subtenant does not
advise Landlord within thirty (30) business days of Landlord's giving Tenant
an Offer Notice that it desires to purchase the Building and Property, or
portion thereof, in accordance with the Acceptable Offer, then Landlord shall
be free to enter into a contract of sale with a third party on the terms
contained in the Acceptable Offer or on terms more favorable to Landlord;
provided that settlement thereunder occurs within six (6) months of
Landlord's sending Tenant and Subtenant notice of the Acceptable Offer.
(e) In the event that Landlord does not consummate the sale of the
Building and Property, or portion thereof, in accordance with the Acceptable
Offer (or on terms more favorable to Landlord) within six (6) months of
Landlord's giving Tenant and Subtenant notice of the Acceptable Offer,
Landlord may not sell, convey, or transfer the Building and Property, or any
portion thereof, thereafter without re-offering the same to Tenant and
Subtenant in accordance with the provisions of this Section 37.
(f) In the event that Tenant and/or Subtenant does not exercise its right
to purchase the Building and Property, or portion thereof, in accordance with
the provisions of this Section 37 and Landlord sells, conveys, or transfers
the Building and Property, or any portion thereof, to another person or
entity, such sale shall be subject to the terms, covenants, and conditions of
this Lease; provided, however, that the provisions of this Section 37 shall
terminate upon any such sale, transfer, or conveyance.
(g) Tenant's and/or Subtenant's rights contained in this Section 37 are
not assignable to any other person or entity without the prior written
consent of Landlord, which consent can be withheld in the sole and absolute
discretion of Landlord.
SECTION 38
EXPANSION
(a) Provided that this Lease is then in full force and effect, on or
before June 30, 1998, Tenant shall have the option to lease the Option Space
for the Option Space Rent on and subject to the terms and conditions
hereinafter set forth. Should Tenant desire to lease the Option Space, it
must so advise Landlord in writing on or before June 30, 1998 and the lease
of the Option Space shall commence sixty (60) days after the date such notice
is given to Landlord (or sooner by agreement of the parties). In the event
that Tenant exercises its option to lease the Option Space, as of the day on
which the lease of the Option Space commences, the Option Space shall be
included within the Premises, the term "Rent" shall include the Option Space
Rent, and all of the other terms and conditions of this Lease shall be
applicable to the Option Space. In the event that Tenant does not exercise
this expansion option in the time set forth above, Tenant shall have no
further rights of expansion to the Option Space.
37
(b) Tenant shall have a right of first offer with respect to the leasing
of any space which Landlord elects to market for occupancy within the
Building not then leased by Tenant under the terms of this Lease (excluding,
however, that portion of the second (2nd) floor of the Building, consisting
of approximately forty thousand (40,000) square feet, located at the easterly
side of the Building and occupied by Belfort Instruments Company as of the
Commencement Date, which space may be surrendered to Landlord in the near
future, which, Tenant acknowledges, Landlord may market for occupancy after
any such surrender, free of any preemptive rights or options in favor of
Tenant). Such right of first offer would be superior to any rights or options
which may, at any time after the date hereof, be granted to any party by or
on behalf of Landlord, but would be subject and subordinated to any renewal
or lease extension rights. which may presently be available to any other
tenants under current leases (or any lease entered into with respect to the
space to be surrendered by Belfort Instruments Company as described above)
affecting any of the space in the Building otherwise subject to the right of
first offer described in this paragraph. In the event that Tenant should
elect to exercise such right, the space incorporated into the Premises in
consequence of such exercise would be governed by all of the terms and
conditions of this Lease; provided, however, that the base rent with regard
to such space would be those for which such space was marketed by Landlord.
In the event that Tenant waives or declines to exercise its right of first
offer as to any space in the Building to be marketed by Landlord for
occupancy, Landlord may proceed to offer the same for occupancy by others,
provided that Tenant would be entitled to revive its preemptive right to in
the event that the terms of any lease or occupancy agreement subsequently
offered to a third party in respect of a proposed lease or other offer that
Tenant had thereto fore waived or declined, should be materially more
favorable to the tenant thereunder than those which had been offered to, and
declined by, Tenant as provided above. Tenant's right to revive its
preemptive right as aforesaid shall not apply to proposed leases or occupancy
agreements covering space as to which Tenant had thereto fore declined to
exercise such right which provided for short-term or interim occupancy rights
(which for the purposes of this sentence, shall be deemed to include only
leases or other occupancy agreements which, giving effect to any renewal or
extension terms available to the proposed tenant or occupant in connection
therewith, do not provide for a term in excess of five (5) years). As to any
space leased by Landlord to a third party on a long-term lease (greater than
five (5) years) which Tenant does not exercise its right of first offer,
Tenant's rights shall terminate as to said space and Tenant shall have no
future rights of first offer as to the space.
SECTION 39
ENVIRONMENTAL INDEMNIFICATION/REPRESENTATION
Tenant shall comply with all Environmental Laws in its use of the
Premises and Property, including, without limitation, the obligation to
obtain and maintain in effect and comply with all requisite permits and
reporting and notification requirements. Tenant hereby agrees that (a) no
activity will be conducted on the Property that will produce or cause the
release of any Hazardous Materials; (b) the Property will not be used in any
manner for the storage of any Hazardous Materials; and (c) except as set
forth below, Tenant will not permit any Hazardous Materials to be brought
onto the Property, and if so brought or found located thereon, the same shall
be immediately removed, at Tenant's sole cost and expense; all
38
required cleanup and disposal procedures shall be diligently undertaken in
accordance with all Environmental Laws and upon request Tenant shall provide
Landlord with evidence satisfactory to Landlord of Tenant's compliance with
all Environmental Laws. If at any time during or after the Term, the Property
is found to be contaminated with Hazardous Materials resulting from Tenant's
use thereof or Tenant's use of the Property results in a violation or alleged
violation of any Environmental Law, Tenant agrees to (and cause all
Subtenants and other occupants of the Premises to) indemnify, hold harmless,
protect and defend Landlord from all claims, demands, actions, liabilities,
costs, expenses, damages and obligations of any nature arising from or as a
result of the use of the Property by Tenant, as set forth below. This
indemnification shall survive the termination or expiration of this Lease.
In addition to the indemnification provided for in Section 20 of this
Lease, Tenant agrees to (and cause all Subtenants and other occupants of the
Premises to) indemnify, defend, and hold Landlord harmless from any claims,
losses, costs, expenses, damages, liabilities or causes of action (including
reasonable attorneys' fees) which (a) arise during or after the Term of this
Lease and are related to or connected with the use or occupancy by Tenant
and/or any Subtenant, assignee, concessionaire, or licensee of the Premises,
Building or Property, and/or (b) result or arise out of or pertain to the
failure by Tenant and/or any Subtenant to comply with all laws and
regulations concerning the use, generation, storage or disposal of Hazardous
Materials, and any and all substances, wastes, materials, or other materials
that may pose a threat to human health or to the environment at the Premises,
Building or Property; provided such indemnification shall not apply to the
negligence or willful acts of Landlord or its contractors or subcontractors,
or its or their agents or employees.
Notwithstanding anything above to the contrary, Landlord shall permit
Tenant or any Subtenant to bring into the Premises, store and use such
Hazardous Materials as are essential to the operation of such Tenant or
Subtenant's business so long as such business constitutes a permitted use of
the Premises, provided, however, that such Hazardous Materials are normally
and customarily used in similar businesses; that such Tenant or Subtenant
maintain a record of all material safety data sheets for any such material
used or located at the Premises, which would be available for inspection by
Landlord at any time during Normal Business Hours; annually, on the
anniversary of the Rent Commencement Date, Tenant shall, and shall cause each
Subtenant to, provide Landlord with copies of all such material safety data
sheets for Hazardous Materials then used or kept at the Premises; that such
Tenant or Subtenant only bring into the Premises and store such quantities of
any Hazardous Material as are absolutely necessary for the Tenant or
Subtenant's business activities and in no event more than two (2) gallons of
each such material; that such Tenant and Subtenant comply with all
requirements of Landlord's insurer(s) regarding handling and storage of such
Hazardous Materials; that Tenant and Subtenant comply with all Environmental
Laws with regard to any such Hazardous Materials; and that Tenant and
Subtenant agree never to dispose of any such Hazardous Material on the
Premises, Building and/or Property or adjacent property and that Tenant and
Subtenant agree to properly dispose of any such Hazardous Material off-site
in accordance and compliance with all Environmental Laws.
Landlord represents and warrants that, to the best of its knowledge as of
the date of this Lease, (i) there are no materials presently located at or on
the Property, the Building or the
39
Premises which are subject to any Environmental Requirement; (ii) there are
no underground storage tanks ("Tanks") at the Premises, the Building or the
Property as such Tanks are defined pursuant to the Federal Underground
Storage Tank Law, as am ended (Subtitle I of the Resource Conservation and
Recovery Act, P.L. 98-616, 42 U.S.C. Chapter 6991 et seq.) and the regulations
promulgated thereunder and any successor or similar statutes, including the
Underground Storage Tank Division of the Maryland Department of the
Environment; (iii) Landlord has no knowledge of any pre-existing Tanks, if
any, or that any pre-existing Tanks have been removed; (iv) the Premises, the
Property and the Building are not in violation of or subject to any existing,
pending, or threatened investigation or inquiry by any governmental authority
pertaining to any applicable federal, state or local environmental law or
Environmental Requirement; (v) there are no friable asbestos or any material
containing asbestos deemed hazardous by federal and/or state regulations,
which have been installed in the Premises, the Property or the Building; and
(vi) there are no hazardous substances, hazardous wastes, or other materials
that may pose a threat to human health or the environment which have been
disposed of or otherwise released or discharged on or to the Premises, the
Building or the Property.
SECTION 40
ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
payment of Annual Rent or Additional Rent herein stipulated shall be deemed
to be other than on account of the earliest stipulated Annual Rent or
Additional Rent due and payable, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment as Rent be deemed
an accord and satisfaction. Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent or pursue
any other remedy provided in this Lease, at law or in equity.
SECTION 41
NO PARTNERSHIP
Landlord does not, in any way or for any purpose, become a partner of
Tenant in the conduct of its business, or otherwise, or joint venturer or a
member of a joint enterprise with Tenant. This Lease establishes a
relationship solely of landlord and tenant.
SECTION 42
HOLDING OVER
hould Tenant hold over in possession of the Premises after the expiration
of this Lease, Tenant shall be deemed to be occupying the Premises from month
to month, subject to such occupancy's being terminated by either party upon
at least thirty (30) day's written notice, at double the Annual Rent and
Additional Rent in effect at the expiration of this Lease, all calculated
from time to time as though this Lease had continued, and otherwise subject
to all of the other terms, covenants, and conditions of this Lease insofar as
the same may be
40
applicable to a month-to-month tenancy. In addition, Tenant shall pay as
Additional Rent to Landlord for all damages sustained by reason of Tenant's
retention of possession. Nothing in this Section 42 excludes Landlord's right
of re-entry or any other right hereunder.
SECTION 43
RECORDATION
Either party may record this Lease without the consent (written or
otherwise) of the other party. Upon the request of either party, the parties
agree to execute a short form of this Lease for recording purposes. If this
Lease or a short form thereof is presented to a clerk for record, the costs
and taxes imposed upon recordation shall be borne by the party presenting
this Lease, or on whose behalf this lease is presented. If such a short form
of this Lease is recorded, upon the termination of this Lease, Tenant shall
upon written request by Landlord, execute, acknowledge, and deliver to
Landlord an instrument in writing releasing and quitclaiming to Landlord all
right, title and interest of Tenant in and to the Premises arising from this
Lease or otherwise upon the termination hereof, all without cost or expense
to Landlord.
SECTION 44
WAIVERS/BROKERAGE COMMISSION
The failure of Landlord to insist for a period of time on strict
performance of any one or more of the terms, covenants, or conditions hereof
shall not be deemed a wavier of the rights or remedies that Landlord may
have, and shall not be deemed a waiver of any subsequent breach or default in
any term, covenant, or condition hereof. No waiver by Landlord of any
provision hereof shall be deemed to have been made unless expressed in
writing and signed by Landlord.
The parties hereto agree that no person or entity is entitled to a
brokerage commission, finder's fee or other similar form of compensation in
connection with this Lease. Each party agrees to indemnify, defend and hold
the other harmless (including, without limitation reasonable attorneys' fees)
for any such claim made because of its action.
SECTION 45
REMEDIES FOR LANDLORD
Any and all remedies available to Landlord for the enforcement of the
provisions of this Lease are cumulative and not exclusive, and Landlord shall
be entitled to pursue either the rights enumerated in this Lease or remedies
authorized by law, or both. Tenant shall be liable for any costs or expenses
incurred by Landlord in enforcing any terms of this Lease,
41
or in pursuing legal action for the enforcement of Landlord's rights,
including court costs and reasonable attorneys' fees, in amounts to be
affixed by court.
SECTION 46
TABLE OF CONTENTS; CAPTIONS
The Table of Contents and captions appearing in this Lease are inserted
only as a matter of convenience and do not define, limit, construe, or
describe the scope or intent of the Sections of this Lease nor in any way
affect this Lease.
SECTION 47
NOTICES
Any and all notices permitted or required to be given hereunder shall be
in writing and shall be deemed duly given three (3) days after such notice
shall be deposited into the United States mail, if delivery is by postage
paid, registered or certified, return receipted mail.
Any notice in any other manner shall be in writing and shall be deemed
given when actually received. Such notice shall be sent to the respective
party at the address given in this Lease or to any other address that the
respective party may designate by notice delivered pursuant hereto. Nothing
herein contained shall be construed to preclude personal service of any
notice in the manner prescribed for personal service of a summons or other
legal process.
Landlord agrees that whenever notice is required to be provided to Tenant
under Section 27 or Section 28, notice shall also be given by Landlord to:
(a) MIDFA, whose address is 000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attn.: Executive Director.
(b) Baltimore Development Corporation, whose address is 00 Xxxxx
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attn: President.
(c) Xxxxxxx-Xxxxxx Contracting Company, whose address is 000 X. Xxxxx
Xxxx, Xxxxxx, Xxxxxxxx 00000, Attn: Xxxxxxxx Xxxxxxxxx, President, with an
additional copy to Xxxxxx X. Xxxxxx, Esquire, Xxxxxxx, Xxxxxxx and Xxxxxx, 2
Xxxxxxx Plaza, 0000 Xxxxxxxxxx Xxxx xxx Xxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxxxxx
00000.
SECTION 48
APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Maryland, and the parties hereto agree to submit to the
jurisdiction of the Courts of the State of Maryland for the resolution of any
disputes arising hereunder.
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SECTION 49
SUCCESSORS AND INCLUDED PERSONS
All rights, obligations, and liabilities herein given to, or imposed
upon, the respective parties hereto shall extend to and bind the several
respective personal representatives, successors, and assigns of the said
parties; and if Tenant shall consist of more than one person or entity, they
shall all be bound jointly and severally by the terms, covenants, and
conditions herein. No rights, however, shall inure to the benefit of any
personal representative, successor, or assign of Tenant unless the Assignment
to such party has been approved by Landlord in writing as provided in Section
30.
In any provision of this Lease involving Landlord's being defended,
released from liability, indemnified, held harmless, or not being deemed to
be liable for any action, omission, or circumstance, the term "Landlord"
shall include Landlord and Landlord's contractors and subcontractors and its
or their present and future controlling persons, partners, directors,
officers, employees, and agents.
In any provision of this Lease involving Tenant's being defended,
released from liability, indemnified, held harmless, or not being deemed to
be liable for any action, omission, or circumstance, the term "Tenant" shall
include Tenant and Tenant's contractors and subcontractors and its or their
present and future controlling persons, partners, directors, officers,
employees, and agents.
SECTION 50
WAIVER OF TRIAL BY JURY
Landlord and Tenant hereby waive trial by jury in any action or
proceeding or counterclaim brought by either party hereto against the other
party on any and every matter, directly or indirectly, arising out of or
with' respect to this Lease.
SECTION 51
RIGHTS OF AND CLAIMS AGAINST LANDLORD
(a) Tenant waives all rights to bring any non-mandatory counterclaim in
any action brought by Landlord for the non-payment of Rent or any other
summary proceeding thereon.
(b) Except the extent specifically provided herein to the contrary,
whenever Landlord's consent or approval is required to be given under any
provisions of this Lease, such consent or approval may be withheld in the
sole discretion of Landlord, and Landlord shall not be required to respond to
any request for consent or approval within a time period determined by
Tenant. Tenant further waives the right to any claim against Landlord for
money
43
damages by reason of any refusal, or delaying by Landlord of any consent,
approval, or statement of satisfaction, and in such event, Tenant's only
remedies therefor shall be an action for specific performance, injunction, or
declamatory judgment to enforce any such requirement.
(c) All obligations of Landlord hereunder shall be construed as
covenants, not conditions.
(d) Landlord may transfer all or part of its interest in the Premises and
this Lease without the consent of Tenant, at any time and from time to time.
(e) Except as specifically set forth herein, Landlord may lease any
portion of the Building to others on such terms and for such purposes as
Landlord considers appropriate and may terminate or modify leases with others
for any portion of the Building without obligation to Tenant and without
relieving Tenant of any obligation under this Lease.
(f) If Tenant obtains a money judgment against Landlord or its successors
or assigns under any provisions of' or with respect to this Lease or on
account of any matter, condition, or circumstance arising out of the
relationship of the parties under this Lease, Tenant's occupancy of the
Premises or Landlord's ownership of the Premises, Tenant shall be entitled to
have execution upon such judgment only upon Landlord's estate in the Property
and rents and other revenue generated thereby and not out of any other assets
of Landlord, any of its partners, or its successors or assigns; and Landlord
shall be entitled to have any such judgment so qualified as to constitute a
lien only on Landlord's estate, subject to any liens antedating such judgment.
(g) At any time when there is an outstanding Mortgage covering Landlord's
interest in the Premises, Tenant may not exercise any remedies for default by
Landlord hereunder unless and until the Mortgagee shall have received written
notice of such default and a reasonable time to cure such default after
Landlord's period to cure shall have elapsed.
SECTION 52
CALCULATION OF TIME
In computing any period of time prescribed or allowed by any provision of
this Lease, the day of the act, event or default from which the designated
period to time begins to run shall not be included. The last day of the
period so computed shall be included, unless it is a Saturday, Sunday or a
legal holiday, in which event the period runs until the end of the next day
which is not a Saturday, Sunday or legal holiday. Unless otherwise provided
herein, all notice and other periods expire as of 5:00 p.m. (local time in
Maryland) on the last day of the notice or other period.
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SECTION 53
SEVERABILITY; REDUCTION OF CHARGES
If the application of any term or provision of this Lease, whether in
whole or in part, be held invalid or unenforceable in general or in any
instance, the remainder of this Lease shall not be affected by such holding
and shall remain fully valid and enforceable.
In the event that any late charge, interest rate, or other payment
provided herein exceeds the maximum applicable charge legally allowed, such
late charge, interest rate, or other payment shall be reduced to the maximum
legal charge, rate, or amount.
SECTION 54
COUNTERPARTS
This Lease may be executed in multiple counterparts or in duplicate, and
when so executed by all parties shall constitute one agreement.
SECTION 55
TOTAL AGREEMENT
This Lease contains the entire agreement between the parties and cannot
be changed or modified except by a written instrument subsequently executed
by the parties hereto.
SECTION 56
NO MERGER
There shall be no merger of this Lease or of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof by reason of
the fact that the same person, firm, corporation or other legal entity may
acquire or hold, directly or indirectly, this Lease or the leasehold estate
and the fee estate in the Premises or any interest in such fee estate,
without the prior written consent of Landlord's Mortgagee.
SECTION 57
TIME OF THE ESSENCE/GOOD FAITH AND FAIR DEALING
Time is of the essence in all provisions of this Lease. Landlord and
Tenant acknowledge their duties to exercise their rights and remedies, and
perform their duties in good faith and deal fairly with each other.
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SECTION 58
COMMERCIAL PURPOSE
The parties stipulate that the Premises is being leased exclusively for
business, commercial, manufacturing, mercantile, or industrial purposes
within the meaning of Section 8-110(a) of the Real Property Article of the
Annotated Code of Maryland, and that the provisions of Section 8-110(b) of
such Article (or any future statute) pertaining to the redemption of
reversionary interests under leases shall be inapplicable to this Lease;
provided, however, this Section 58 is not intended nor shall it be construed
to impair or otherwise effect the purchase option set forth in Section 37 of
this Lease.
SECTION 59
ABATEMENT OF RENT RELATING TO UNSUBLEASED SPACE
Notwithstanding anything above to the contrary, during the Original Term
only, the parties hereby agree that in the event all or any portion of the
Premises becomes vacant, i.e. not under sublease, (but only after the
expiration or termination of Tenant's initial sublease with Osiris
Therapeutics, Inc.) the following rental abatements shall apply:
(a) That Landlord will xxxxx proportionately one (1) month's rental
payment of the Annual Rent due to Landlord for any portion of the leased
Premises that becomes vacant. By way of example, should fifty percent (50%)
of the leased Premises become vacant, Landlord shall xxxxx fifty percent
(50%) of one (1) month's rental due from Tenant.
(b) After such space has remained vacant for longer than thirty (30)
days, Landlord shall partially xxxxx the Monthly Installment of Annual Rent
payable by Tenant on the vacant space only to an amount equal to sixty
percent (60%) of the regular Monthly Installment of Annual Rent due to
Landlord had the space not been vacant. By way of example, should fifty
percent (50%) of the leased Premises remain vacant for longer than thirty
(30) days, Landlord shall partially xxxxx Tenant's total Monthly Rental by
twenty percent (20%). By way of further example, should one hundred percent
(100%) of the leased Premises remain vacant for longer than thirty (30) days,
Landlord shall partially xxxxx Tenant's total Monthly Rental by forty percent
(40%). The said proportionate partial abatement shall commence with the next
Monthly Installment of Annual Rent and continue on a month-to-month basis
until the entire leased premises become fully occupied by one or more
Subtenants of Tenant.
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SECTION 60
REPAYMENT OF "ABATED" RENT
This Lease provides for a period of "free" rent or other rent concession,
such postponed rent or "free" rent is called the "Abated Rent". Tenant shall
be credited with having paid all of the Abated Rent upon the expiration of
the Original Lease Term only if Tenant has fully, faithfully, and punctually
performed all of Tenant's material obligations hereunder, including the
payment of all Rent (other than Abated Rent) and all other monetary
obligations and the surrender of the Premises in the physical condition
required by this Lease. Tenant acknowledges that its right to receive credit
for the Abated Rent is absolutely conditioned upon Tenant's full, faithful
and punctual performance of its material obligations under this Lease. If
Tenant defaults and does not cure within any applicable grace period, the
Abated Rent shall immediately become due and payable in full and this Lease
shall be enforced as if there were no such rent abatement or other rent
concession. In such case, Abated Rent shall be calculated based on the full
rent payable under this Lease.
SECTION 61
LIMITATION OF TENANT LIABILITY
Notwithstanding anything above or in this Lease to the contrary, and/or
provided that Tenant and Subtenants comply with and maintain all obligations
and requirements as set forth in Sections 21, 22 and 23, supra, Landlord
agrees that as to any monetary liability of Tenant due to or arising from any
breach or default of this Lease, and not covered by any applicable policy of
insurance required under Sections 21 and 22, supra, Tenant's monetary
liability under this Lease shall be limited to the maximum amount of Five
Hundred Thousand Dollars ($500,000.00). In the event that Landlord's monetary
claim against Tenant exceeds the amount of Five Hundred Thousand Dollars
($500,000.00) and that because of the limitation set forth herein, Landlord
receives less than the full amount of its claim, Tenant does, to the extent
permitted by applicable law, hereby grant and convey to Landlord (and further
agrees to execute such other and further documents as are necessary in
Landlord's reasonable opinion) any rights and claims Tenant may have against
any Subtenant and/or third party which created or caused Landlord's claim
against Tenant to the effect that Landlord shall have subrogation rights to
any such claim of Tenant in the amount that Landlord's claim as afore said is
reduced by the said limitation granted to Tenant. By way of example, should
Landlord have a claim against Tenant in the amount of Six Hundred Thousand
Dollars ($600,000.00) caused by a breach of this Lease by Subtenant, and
Tenant's liability is limited to Five Hundred Thousand Dollars ($500,000.00),
Landlord would have subrogation rights from Tenant to pursue any claim Tenant
may have against Subtenant in the amount of One Hundred Thousand Dollars
($100,000.00).
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SECTION 63
VACATING OF OFFICE SPACE BY THE BELT'S CORPORATION
Notwithstanding any other provision of this Lease to the contrary, Tenant
acknowledges that possession of a portion of the Premises, consisting of
approximately 7500 square feet of office space currently occupied by The
Belt's Corporation ("Belt's"), a tenant of Landlord, will not be delivered to
Tenant until the earlier of (a) ninety days after the Lease Commencement
Date, or (b) the date on which substitute office space for Belt's (935 S Xxxxx
Street and 000 Xxxx Xxxxxx) has been completed and is ready for occupancy by
issuance of the required use and occupancy permit by Baltimore City. Neither
Belt's nor Landlord shall be responsible to Tenant or any Subtenant for the
payment of rent in respect of the space so occupied (which is referred to
herein as the "Belt's Space") during the period described in the preceding
sentence.
Landlord agrees that regardless of Belt's continuing occupancy of the
Belt's Space, Landlord shall, and shall cause Belt's to, cooperate in good
faith with Tenant, Osiris, and all contractors engaged in the performance of
Tenant's TI Work and the Osiris Work in order to minimize the effect of
Belt's continuing occupancy of the Belt's Space on the schedule for the
completion of such work. Landlord shall, and shall cause Belt's to, permit
Tenant and Osiris and their contractors and representatives to enter the
Belt's Space and to perform any and all construction work therein which may
be required for the timely completion of the Tenant's TI Work and the Osiris
Work, provided that: (i) such construction work in the Belt's Space does not
begin prior to forty-five (45) days after the Lease Commencement Date; (ii)
any such construction work occurs only on the first floor of the Belt's
Space; (iii) Tenant and Osiris shall provide Landlord with reasonable prior
notice of the timing and nature of the work proposed to be performed within
the Belt's Space; (iv) any and all work performed within the Belt's Space
shall be performed in such a way as to permit Belt's to continue to occupy
the Belt's Space for the conduct of its business without unreasonable
interference or disruption; and (v) all work to be performed within the
Belt's Space shall be performed with maximum attention to the safety and
security of Belt's employees, personnel and equipment. Tenant and Osiris
shall consult with Landlord with respect to the scope and nature of any and
all work to be performed within the Belt's Space prior to the performance
thereof. Landlord acknowledges and has advised Belt's that the nature of the
work to be performed within the Belt's Space may require some temporary
interruption of Belt's normal office routines, and may require the temporary
movement of personnel and equipment within the Belt's Space.
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IN WITNESS THEREOF, Landlord and Tenant have caused this Lease to be
executed under seal, as of the date and year first above written.
ATTEST/WITNESS: LANDLORD:
SAGA LIMITED PARTNERSHIP
/s/ Xxxxxxxxx X. Xxxxx By: /s/ X. X. Xxxxx
-------------------------------- --------------------------- (SEAL)
X. X. Xxxxx, III, General Partner
ATTEST/WITNESS: TENANT:
MARYLAND ECONOMIC DEVELOPMENT
CORPORATION
/s/ illegible By: /s/ Xxxx X. Xxxxx
-------------------------------- --------------------------- (SEAL)
Xxxx X. Xxxxx, Executive Director
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