1
EXHIBIT 10(x)
LEASE AGREEMENT
BETWEEN
XXXX CORPORATION, a Maryland Corporation, as Landlord
AND
CRYOMEDICAL SCIENCES, INC., a Delaware Corporation, as Tenant
2
TABLE OF CONTENTS
Section Description Page No.
------- --------------------------------------------------------
1. Definitions 3
2. Rent; Additional Rent 4
3. Additional Rent 4
4. Delivery and Condition of Premises 6
5. Operation of the Building and the Real Property 6
6. Conduct of Business by Tenant 6
7. Alterations and Tenant's Property 7
8. Repairs 7
9. Liens 8
10. Subordination and Modification 8
11. Inability to Perform; No Delay to Constitute
Eviction 9
12. Destruction 9
13. Eminent Domain 10
14. Assignment and Subletting 10
15. Building Services 11
16. Default; Remedies 11
17. Insolvency or Bankruptcy 13
18. Fees and Expenses; Indemnity; Liability
Insurance 13
19. Access to Premises; Landlord's Right to
Enter 14
20. Waiver, Release 14
21. Tenant's Certificates 15
22. Rules and Regulations 15
23. Tax on Tenant's Personal Property 15
24. Authority 15
25. Signage 15
26. Parking 15
27. Miscellaneous 15
Exhibits "A", "C"
3
LEASE
THIS LEASE is made and entered into as of this 1st day of May, 1995, by
and between XXXX CORPORATION, a Maryland corporation (herein called
"Landlord"), and Cryomedical Sciences, Inc. a Delaware Corporation (herein
called "Tenant").
W I T N E S S E T H:
Upon and subject to the terms, covenants and conditions hereinafter set
forth, Landlord leases to Tenant and Tenant leases from Landlord the Premises
(as hereinafter defined) in the Building.
1. Definitions
1.1 Additional Rent: As defined in Section 3.2, below.
1.2 Basic Rent: As defined in Section 2.1, below.
1.3 Building: The building located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, upon the Real Property.
1.4 Guarantor(s): N/A
1.5 Lease: This Lease, as amended from time to time, and all
Exhibits attached hereto.
1.6 Lease Commencement Date: May 1, 1995.
1.7 Lease Year: Each period of twelve (12) calendar months during
the Term, commencing on the Lease Commencement Date and Partial
Lease Year ending on the Term Expiration Date.
1.8 Operating Expenses Base Amount. The actual operating expenses of
the 1994 calendar year. For purposes of redefinition, the
operating expense base amount will be adjusted to reflect the
first Lease Year that Tenant has occupied the Premises. Tenant
will neither owe nor pay any sum of money attributable to
operating expenses which accrue during its first Lease Year.
1.9 Premises: Approximately Five Thousand Four Hundred Ninety-Six
(5,496) square feet of rentable floor area located on the First
Floor and approximately Twenty Two Thousand One Hundred Twenty
(22,120) square feet of rentable floor area located on the Lower
Level, located within the Building, and outlined in red on
Exhibit A, attached hereto.
1.10 Real Estate Taxes Base Amount. The actual real estate taxes of
the 1994 fiscal year. For purposes of redefinition, the real
estate tax base amount will be adjusted to reflect the first
Lease Year that Tenant has occupied the Premises. Tenant will
neither owe nor pay any sum of money attributable to real estate
taxes which accrue during its first Lease Year.
1.11 Real Property: The land comprising all that certain parcel of
land situated in Xxxxxxxxxx County, Maryland, and identified as
Lot Six (6) in a subdivision known as "Lots Four (4), Five (5)
and Six (6) and dedication of part of Xxxxxxx Xxxxx, 00-X
Xxxxxxxxxx Xxxx "as per plat thereof recorded in Plat Book 87 at
plat 9281 among the land records of Xxxxxxxxxx County, Maryland
(Tax Account Number 4-201-1457).
1.12 Term: The five year (5) period commencing on the Lease
Commencement Date and ending on the Term Expiration Date, unless
the Term shall sooner terminate as hereinafter provided.
1.13 Term Expiration Date: The Term Expiration Date shall be five (5)
years from the Lease Commencement Date or April 30, 2000.
2. Rent; Additional Rent
2.1 Basic Rent. Commencing on the Lease Commencement Date, Tenant
shall pay to Landlord during the Term a base rental ("Basic Rent") which shall
be Sixteen and 50/100 Dollars ($16.50) per square foot for the Five Thousand
Four Hundred Ninety Six (5,496) square feet located on the First Floor on a
full service basis and Twelve and 13/100 Dollars ($12.13) per square foot for
the Twenty Two Thousand One Hundred Twenty (22,120) square feet located on the
Lower Level net of char service which shall both be further detailed in the
schedule below. Basic Rent shall be payable by Tenant in lawful money of the
United States in equal consecutive monthly installments of one-twelfth the
Basic Rent on or before the first day of each calendar month, in advance, at
the address specified for Landlord below, or such other place as Landlord shall
designate, without any prior demand therefor and without any deductions or
setoff whatsoever. Rent for any partial month shall be prorated at the rate of
one-thirtieth (1/30th) of the monthly Basic Rent per day.
3
4
=============================================================================
5,496 square feet on 22,120 square feet on Total
First Floor the Lower Level
Date Rate Amount Rate Amount Monthly Amount
-----------------------------------------------------------------------------
5/1/95 16.50 $7,557.00 $12.13 $22,359.63 $29,916.63
-----------------------------------------------------------------------------
5/1/96 $17.00 $7,786.00 $12.49 $23,023.23 $30,809.23
-----------------------------------------------------------------------------
5/1/97 $17.51 $8,019.58 $12.86 $23,705.27 $31,724.85
-----------------------------------------------------------------------------
5/1/98 $18.04 $8,262.32 $13.25 $24,424.17 $32,686.49
-----------------------------------------------------------------------------
5/1/99 $18.58 $8,509.64 $13.65 $25,161.50 $33,671.14
-----------------------------------------------------------------------------
5/1/2000 $19.14 $8,766.12 $14.06 $25,917.27 $34,683.39
=============================================================================
2.2 Adjustment of Rent. Commencing with the first anniversary of the
Lease Year, The Basic Rent set forth in Paragraph 2.1 hereinabove shall be
adjusted annually on each anniversary of the Lease Commencement Date during the
balance of the Term by multiplying the Basic Rent for the immediately preceding
Lease Year by three percent (3.0%) per annum, computed annually.
2.3 Additional Rent. Tenant shall pay to Landlord as Additional Rent
(as such term is defined in Section 3.2) hereunder, all charges and other
amounts required under this Lease including, without limitation, all charges
specified in Section 3 hereof. All such amounts and charges shall be payable to
Landlord at the time and at the place where Basic Rent is payable. Landlord
shall have the same remedies for a default in the payment of Additional Rent as
for a default in the payment of Basic Rent.
2.4 Right of First Offering. Upon the expiration of any lease space
adjacent to Tenant's demised premises on the first floor or lower level of the
building, or on space that is currently vacant within the building, Landlord
will offer Tenant that space for lease, throughout the term of Tenant's then
current lease and any extension thereof prior to offering the space to the
general public. The above is subject to the Landlord and Tenant being able to
negotiate a lease rate for the expansion space within ten (10) business days of
the initial offering by the Landlord to the Tenant. Within thirty (30) days of
the determination of the lease rate, Landlord and Tenant shall execute an
amendment to the lease (the "Lease Amendment") which shall incorporate the
lease terms for the expansion of space.
2.5 Late Payment Charge. If Tenant shall fail to pay any Basic Rent
or Additional Rent within five (5) business days after the same is due and
payable, such unpaid amounts shall be subject to a late payment charge equal to
five percent (5%) of such unpaid amounts in each instance to cover Landlord's
additional administrative costs resulting from Tenant's failure. Such late
payment charge shall be paid to Landlord together with such unpaid amounts.
Landlord shall waive the late charge set forth herein for the first Two (2)
late payments during each Lease Year of the term of the Lease, provided that
such payments shall be made within Ten (10) days of written notice to Tenant of
such lateness.
2.6 Returned Check Charge. A service charge of Fifty and 00/100
Dollars ($50.00) will be automatically made for each instance in which a check
is returned unpaid for any reason by the Tenant's bank, unless it is Tenant's
bank error.
3. Additional Rent
3.1 For purposes of this Section 3, the following terms shall have
the meanings hereinafter set forth:
(a) "Tenant's Share" shall mean that proportion which the
rentable floor area of Tenant's Premises bears to the total rentable floor area
of the Building; i.e., 27,616 divided by 90,246 square feet or 31%.
(b) "Real Estate Taxes" shall mean all taxes, assessments and
charges levied upon or with respect to the Real Property and Building or any
personal property of Landlord used in the operation thereof, or Landlord's
interest in the Building or such personal property, and shall also include any
other tax, fee or other excise, however described, that may be levied or
assessed as a substitute for, or as an addition to, in whole or in part, any
other Real Estate Taxes, whether or not now customary or in the contemplation
of the parties on the date of this Lease. Real Estate Taxes shall not include
franchise or income taxes measured by the net income of Landlord from all
sources, unless, due to a change in the method of taxation, any of such taxes
is levied or assessed against Landlord as a substitute for, or as an addition
to, in whole or in part, any other tax that would otherwise constitute a Real
Estate Tax. Real Estate Taxes shall also include reasonable legal fees, costs
and disbursements incurred in connection with proceedings to contest, determine
or reduce Real Estate Taxes. Tenant will not be obligated for any amounts due
in excess of the original Real Estate Tax xxxx.
4
5
(c) "Operating Expenses" shall mean the total of the amounts
paid by Landlord in connection with the management, operation, maintenance and
repair of the Building and the Real Property: (i) the amount paid by the
Landlord for air conditioning, electricity, steam, heating, gas, mechanical,
ventilating, and elevator systems and all other utilities and the cost of
supplies and equipment and maintenance and service contracts in connection
therewith, (ii) the amount paid by the Landlord for repairs and general
maintenance and cleaning, (iii) the amount paid by the Landlord for fire,
extended coverage, boiler, sprinkler, public liability, property damage, rent,
earthquake and other insurance, (iv) the amount paid by the Landlord for wages,
salaries and other labor costs, including taxes, insurance, medical and other
employee benefits, excluding bonuses (v) Landlord's reasonable management fees
not to exceed five percent (5%), (vi) the amount paid by Landlord for
supplying, replacing and cleaning employee uniforms, (vii) the amount paid by
Landlord for any capital improvements made to the Building and the Real
Property as a labor-saving device or to effect other economies in the operation
or maintenance of the Building and the Real Property, or made to the Building
and the Real Property after the date of this Lease, that are required under any
governmental law or regulation that was not applicable to the Building and the
Real Property as of the date hereof, such cost to be amortized over such
reasonable period as Landlord shall determine, together with interest on the
unamortized balance at the rate of ten percent (10%) per annum or such higher
rate as may have been paid by Landlord on funds borrowed for the purpose of
constructing such capital improvements. Landlord will provide to Tenant an
annual statement of actual operating costs as soon as it is available. Upon
review of the annual statement, Tenant has the right to review Landlord's
records relating to the actual operating costs in Landlord's office provided
Tenant gives Landlord fifteen (15) days written notice of its desire to do so.
(d) If during all or part of any calendar year, Landlord shall
not furnish any particular item of work or service that would be included in
the Operating Expenses to ninety-five percent (95%) of the rentable area of the
Building because less than ninety-five percent (95%) of the Building is
occupied or any other tenant is itself obtaining and providing such item of
work or service, then an adjustment shall be made in the Operating Expenses for
such calendar year so that the Tenant's Share of the Operating Expenses for
such calendar year shall be increased to the amount that Landlord determines
are reasonably attributable to the Tenant's use of the Premises.
It is understood and agreed by Landlord and Tenant that the operation of the
foregoing gross-up clause is not intended to enable Landlord to recover from
Tenant any expenses attributable to any unoccupied space in the Building, but
only to insure that Landlord recovers from Tenant a proportionate share of any
increase in Operating Expenses over the Base Year Operating Expenses indicated
in Section 1.8 hereof which are reasonably attributable to Tenant's occupancy
of the Premises.
(e) Operating Expenses shall exclude (i) costs attributable to
specific tenants whether or not recovered from those tenants, (ii) the cost of
any capital improvements except those stated in subparagraph 3.1(c)(vii), and
(iii) interest and principal payments on mortgages.
(f) "Monthly Expenses" with respect to each calendar month
during the Term shall mean one-twelfth (1/12) of the total Real Estate Taxes
and Operating Expenses for the calendar year in which such month occurs.
3.2 Payment of Tenant's Share. Commencing with the Second Lease
Year, as of the first day of the month in which each anniversary of the Lease
Commencement Date occurs, Tenant shall pay to Landlord as additional rent (The
"Additional Rent") on or before the first day of each calendar month, an amount
which is the sum of the Tenant's Share of (i) any amount by which the total
Real Estate Taxes as estimated by Landlord in its reasonable judgement, levied
during such Adjustment Year, is expected to exceed the Real Estate Taxes Base
Amount specified in Section 1.10, plus (ii) any amount by which the total
Operating Expenses for the Adjustment Year as estimated by Landlord in its
reasonable judgement, is expected to exceed the Operating Expenses Base Amount
specified in Section 1.8 (as the same may be adjusted pursuant to Section 3.3
below). After the expiration of each calendar year commencing or ending during
the Term, Landlord shall furnish Tenant with a statement (herein called
Landlord's Expense Statement") setting forth in reasonable detail the Operating
Expenses and Real Estate Taxes for such calendar year. If the actual Operating
Expenses and Real Estate Taxes for such calendar year exceed the estimated
Operating Expenses and Real Estate Taxes used by Landlord in determining the
Additional Rent paid by Tenant for such calendar year, Tenant shall pay to
Landlord the difference between the amount paid by Tenant and the actual
Tenant's Share of the Operating Expenses and Real Estate Taxes within thirty
(30) days after the receipt of Landlord's Expense Statement, and if the total
amount of Additional Rent paid by Tenant for any such calendar year shall
exceed the amount which would have been paid based on the actual Tenant's Share
of the Operating Expenses and Real Estate Taxes for such calendar year, such
excess shall be credited against any Basic Rent or Additional Rent due within
thirty (30) days from Tenant to Landlord hereunder, if any, or shall be paid by
Landlord to Tenant together with Landlord's Expense Statement. The obligations
of Landlord and Tenant under this Section 3.2 shall survive any termination of
this Lease. Landlord will provide Tenant with an annual statement of actual
operating expenses as soon as it is available after the completion of the
calendar year. Tenant has the right to inspect Landlord's records relating to
the actual operating expenses in Landlord's offices by providing fifteen (15)
days notice to Landlord of Tenant's desire to do so.
5
6
3.3 Excessive Increase in Operating Expenses Occasioned by Tenant.
(a) Notwithstanding anything to the contrary in this Lease, in
the event Tenant installs or operates any heavy duty mechanical or electrical
equipment, including auxiliary cooling equipment, in the Premises or conducts
any business or undertakes any activities in the Premises which causes
Operating Expenses to otherwise increase by an excessive amount under the facts
and circumstances, Tenant shall be solely responsible for the costs of any
excess electrical consumption or other charges that may be occasioned thereby,
in which event, the charges attributable to such excess electrical consumption
or other charges shall not be considered an Operating Expense or allocated pro
rata among the tenants of the Building but shall instead be added to and
payable on a monthly basis as Additional Rent of the Tenant.
(b) The total average consumption of electricity, including
lighting, in excess of four (4) xxxxx per square foot for the Premises shall be
deemed excessive. Additionally, any individual piece of electrically operated
machinery or equipment having a name plate rating in excess of two (2)
kilowatts shall also be deemed as requiring excess electric current.
(c) Landlord may require that one or more separate meters be
installed to record the consumption or use of electricity or shall have the
right to cause a reputable independent electrical engineer to survey and
determine the quantity of electricity consumed by such excessive use. The cost
of any such survey or meters and of installation, maintenance and repair
thereof shall be paid for by Landlord. Tenant agrees to pay Landlord (or the
utility company, if direct service is provided by the utility company),
promptly upon demand therefor, for all such electric consumption and demand as
shown by said meters, or a flat monthly charge determined by the survey, as
applicable, at the rates charged for such service by the local public utility
company.
4. Delivery and Condition of Premises. Tenant agrees to accept the
Premises in an "as is" condition.
5. Operation of the Building and the Real Property
5.1 Maintenance of Building. The manner in which the Building
and the Real Property are maintained and operated and the expenditures therefor
shall be at the sole discretion of Landlord, in a manner consistent with
similar office buildings in Xxxxxxxxxx County.
5.2 Alterations or Additions. Landlord hereby reserves the
right, at any time and from time to time, to make alterations or additions to
the Building and the Real Property. Landlord also reserves the right at any
time and from time to time to construct other improvements in the Building and
to enlarge same and make alterations therein or additions thereto. If Landlord
chooses to make Alterations or Additions, Landlord will use its reasonable
efforts to do so with no interference to Tenant or Tenant's business. If
Landlord requires entry into Tenant's Premises, Landlord will provide Tenant
with forty-eight (48) hours advance notice, except in the case of an emergency.
If possible, any work will be scheduled at a time to cause the least
interference to Tenant. In the event Landlord makes alterations to any area
which is considered hallway or common area which thereby reduces the core
factor for the entire building, Landlord agrees to recompute Tenant's share of
the common areas.
6. Conduct of Business by Tenant
6.1 Permitted Use. Tenant shall use and occupy the Premises
during the Term of the Lease solely for use as offices and laboratories
consistent with Tenant's business and for sales, warehousing or manufacturing,
as permitted by law, and for no other use or uses without the prior written
consent of Landlord.
6.2 Uses not Permitted. Tenant shall not use or occupy, or
permit the use or occupancy of, the Premises or any part thereof for any use
other than the use specifically set forth in Section 6.1 hereof, or in any
manner that, in Landlord's judgment, would adversely affect or interfere with
any services required to be furnished by Landlord to Tenant or to any other
tenant or occupant of the Building, or with the proper and economical rendition
of any such service, or with the use or enjoyment of any part of the Building
by any other tenant or occupant.
6.3 Tenant's Compliance with Laws. Unless otherwise the
Landlord's responsibility, Tenant, at Tenant's cost and expense, shall comply
with all laws, orders and regulations of federal and municipal authorities, and
with all directions, pursuant to law, of all public officers, that shall impose
any duty upon Tenant with respect to the Premises or the use or occupancy
thereof.
6.4 Tenant's Compliance with Insurance Requirements, etc.
Tenant shall not do anything, or permit anything to be done, in or about the
Premises which shall conflict with the provisions of any insurance policies
covering the Building or any property located therein, or result in a refusal
by any insurance company to insure the Building or any such property, in
amounts reasonably satisfactory to Landlord, or subject Landlord to any
liability or responsibility for injury to any person or property by reason of
any business operation being conducted in the Premises, or cause any increase
in the insurance rates applicable to the Building or property located therein.
Tenant, at Tenant's expense, shall comply with all reasonable rules, orders,
regulations or requirements of the American Insurance Association (formerly the
National Board of Fire Underwriters) and with any similar body that shall
hereafter perform the function of such Association.
6
7
7. Alterations and Tenant's Property
7.1 Initial Improvements. Landlord is under no obligation to
make structural or other alterations, decorations, additions or improvements in
or to the Premises.
7.2 Approved Alterations. Tenant shall make no alterations,
installations, additions or improvements in or to the Premises or any portion
thereof or any alteration to the mechanical systems of the Premises or any
portion thereof, including, without limitation, the plumbing and air
conditioning systems of the Premises or any portion thereof or to the apparatus
of the Premises or any portion thereof of other or like nature without
Landlord's prior written consent which consent shall not be unreasonably
withheld, delayed or conditioned (any such alteration, installation, addition
or improvement for which Landlord's approval is required is hereinafter
referred to as an "Approved Alteration"), and shall include Building Standard
Improvements. Unless otherwise agreed in writing by Landlord, Tenant shall
remove all such Approved Alterations and restore the portion of the Premises
affected thereby to its former condition at its sole cost and expense on or
before the Term Expiration Date.
7.3 Requirements for Approved Alterations. Each alteration,
installation, addition or improvement, shall be subject to the limitations that
such Alteration (a) does not adversely affect the structural strength of the
Premises or any portion thereof; (b) does not adversely affect the mechanical,
plumbing, electrical and HVAC systems of the Premises or any portion thereof;
(c) does not materially affect the external appearance or value of the Premises
or any portion thereof; and (d) does not diminish or impair the use of the
Building as a first class office building. Prior to making any Approved
Alteration, plans and specifications therefor in such detail as Landlord may
request shall be submitted to Landlord and the mortgagees of the Building for
approval, except for minor non structural improvements unless the cost is in
excess of Five Hundred and 00/100 Dollars ($500.00).
7.4 Standards for Approved Alterations. All Alterations made by
Tenant in the Premises or any portion thereof shall be constructed and
completed in a good and workmanlike manner at Tenant's sole cost and expense by
contractors approved by Landlord. Prompt payment shall be made by Tenant and
Tenant shall keep the Premises free of mechanics' and materialmen's liens and
cause the same to be promptly discharged or bonded. Tenant shall deliver to
Landlord written and unconditional waivers of mechanics' and materialmen's
liens upon the Real Property for all work, labor and services to be performed
and material to be furnished in connection with the proposed Alterations.
Tenant shall obtain all necessary governmental permits, licenses and approvals,
and shall promptly comply with all applicable laws. The Alterations shall be
completed in accordance with the approved plans and specifications where such
approvals are required.
7.5 Tenant's Property. All appurtenances, fixtures,
improvements, additions and other property attached to or installed in the
Premises, whether by Landlord or by or on behalf of Tenant, and whether at
Landlord's expense or Tenant's expense, or at the joint expense of Landlord and
Tenant, shall be and remain the property of Landlord. Any furnishings and
personal property placed in the Premises that are removable without material
damage to the Building or the Premises, whether the property of Tenant or
leased by Tenant, are herein called "Tenant's Property". Any replacements of
any property of Landlord, whether made at Tenant's expense or otherwise, shall
be and remain the property of Landlord. Any trade fixtures installed by Tenant
can be removed at Tenant's expense at the termination of this Lease.
7.6 Removal of Tenant's Property. Any of Tenant's Property on
the Premises prior to the Term Expiration Date shall be removed by Tenant at
Tenant's cost and expense, and Tenant shall, at its cost and expense, repair
any damage to the Premises or the Building caused by such removal, all on or
before the Term Expiration Date. Any of Tenant's Property not removed from the
Premises prior to the expiration of the Term shall, at Landlord's option,
become the property of Landlord or Landlord may remove such Tenant's Property,
and Tenant shall pay to Landlord Landlord's costs of removal and of any repairs
in connection therewith within ten (10) days after the receipt of a xxxx
therefor. Tenant's obligation to pay any such costs shall survive any
termination of this Lease.
7.7 Improvements of Lower Level. Landlord will allow Tenant, at
Tenant's sole expense, to perform alterations to the lower level of the
building. Such alterations to be made only after Landlord's review and approval
of said alterations, such approval not to be unreasonably withheld.
8. Repairs
8.1 Maintenance of Premises. Tenant shall maintain the Premises
and, at Tenant's cost and expense, shall make all repairs and replacements to
preserve the Premises in good working order and in clean, safe and sanitary
condition.
7
8
8.2 Repairs by Tenant. All repairs and replacements made by or
on behalf of Tenant shall be made and performed (a) at Tenant's cost and
expense and at such time and in such manner as Landlord may designate, (b) by
contractors or mechanics approved by Landlord, (c) so that same shall be at
least equal in quality, value, and utility to the original work or
installation, and (d) in accordance with the reasonable rules and regulations
for the Building and the Real Property adopted by Landlord from time to time,
and in accordance with all applicable laws and regulations of governmental
authorities having jurisdiction over the Premises. If Landlord gives Tenant
notice of the necessity of any repairs or replacements required to be made
under Section 8.1 above and Tenant fails to commence diligently to effect the
same within ten (10) business days thereafter, Landlord may proceed to make
such repairs or replacements and the expenses incurred by landlord in
connection therewith shall be due and payable from Tenant upon demand as
Additional Rent; provided, that Landlord's making any such repairs or
replacements shall not be deemed a waiver of Tenant's default in failing to
make the same.
8.3 Maintenance of Common Areas. Landlord shall operate and
maintain the common or public areas of the Real Property and the Building in a
manner consistent with similar office buildings in Xxxxxxxxxx County.
9. Liens
9.1 Work Done on Tenant's Behalf. Any Alterations, repairs,
replacements or other work done on the Premises shall be solely on behalf, and
for the account, of Tenant and not of Landlord. Landlord's consent to any
Alterations shall not be deemed or construed to be Landlord's consent or
agreement to subject Landlord's interest in the Premises or the Real Property
to any mechanics' or materialmen's liens which may be filed on account of such
Alterations. Tenant shall keep the Premises free from any liens arising out of
any work performed, material furnished or obligations incurred by or for Tenant
or any person or entity claiming through or under Tenant, excluding any work
performed by Landlord's sub-contractors to construct the initial improvements
as outlined in Exhibit "B" of this Lease.
9.2 Landlord's Right to Release Lien. In the event that Tenant
shall not, within thirty (30) days following the imposition of any lien
described in Section 9.1 above, cause same to be released of record by payment
or posting of a proper bond, Landlord shall have, in addition to all other
remedies provided herein and by law, the right but not the obligation to cause
same to be released by such means as it shall deem proper, including payment of
the claim giving rise to such lien. All such sums paid by Landlord and all
expenses incurred by it in connection therewith shall be considered Additional
Rent and shall be payable to it by Tenant on demand. Any such action by
Landlord shall not in any event be deemed a waiver of Tenant's default with
respect thereto.
9.3 Landlord's Right to Post Notices. Landlord shall have the
right at all times to post and keep posted on the Premises any notices
permitted or required by law, or that Landlord shall deem proper, for the
protection of Landlord, the Premises, the Building, and any other party having
an interest therein, from mechanics' and materialmen's liens, and Tenant shall
give to Landlord at least ten (10) business days' prior notice of commencement
of any construction on the Premises.
10. Subordination and Modification
10.1 Subordination of Lease. Without the necessity of any
additional document being executed by Tenant for the purpose of effecting a
subordination, Tenant agrees that this Lease and Tenant's tenancy hereunder are
and shall be automatically subject and subordinate at all times to (a) any
underlying leases that may now exist or hereafter be executed affecting the
Building or the Real Property or both, (b) the lien of any mortgage deed of
trust or similar security instrument that may now exist or hereafter be
executed in any amount for which the Building, the Real Property, or underlying
leases, or Landlord's interest or estate in any of said items is specified as
security, and (c) all renewals, modifications, consolidations, replacements and
extensions of any of the foregoing.
Tenant covenants and agrees to execute and deliver, upon
demand by Landlord and in the form requested by Landlord, any additional
documents evidencing the subordination of this Lease with respect to any such
ground lease or underlying lease, or the lien of any such mortgage or deed of
trust. If Tenant fails to execute such instruments within thirty (30) days
after written request therefor, Landlord is hereby appointed Tenant's
attorney-in-fact to execute, acknowledge and deliver any and all such
instruments for an on behalf of Tenant.
Landlord will at Tenant's written request, attempt to obtain a Non
Disturbance Agreement from all current or future mortgagees of the Building or
Real Property which recognizes such lessor or mortgagee, as the case may be,
and, among other things, provides that, notwithstanding any default with
respect to any underlying lease, mortgage or any foreclosure thereof, Tenant's
possession and right of use under this Lease in and to the Premises shall not
be disturbed by such lessor or mortgagee, if Tenant attorns to such, unless and
until Tenant shall breach any of the provisions hereof and this Lease or
Tenant's right to possession hereunder shall have been terminated in accordance
with the provisions of this Lease. Any and all costs involved in obtaining such
a Non Disturbance Agreement will be the sole responsibility of Tenant.
8
9
10.2 Attornment. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or deed of trust is
foreclosed or a conveyance in lieu of foreclosure is made for any reason,
Tenant shall, notwithstanding any subordination of any ground lease, underlying
lease or lien to this Lease, attorn to and become the Tenant of the successor
in interest to Landlord at the option of such successor in interest.
10.3 Amendment or Modification. If, in connection with any loan
secured by a mortgage or deed of trust affecting the Building, Real Property or
both, the lender should require any amendment or modification of the terms
hereof, Tenant shall duly execute and deliver any instrument reasonably
requested by such lender to affect such amendment or modification; provided,
that such amendment or modification shall not enlarge or decrease the term
hereof or increase the amount of Basic Rent or Additional Rent payable
hereunder, or modify any of the business terms of this Lease.
11. Inability to Perform; No Delay to Constitute Eviction. If, for
any reason, Landlord is unable to perform or make or is delayed in fulfilling
any of its obligations under this Lease, and such failure arises from or
through acts of God, strikes, lockouts, labor difficulties, explosions,
sabotage, accidents, riots, civil commotions, acts of war or warlike conditions
in this or any foreign country, fire and casualty, legal requirements, energy
shortage or causes beyond the reasonable control of Landlord, assuming Landlord
acts promptly thereafter, no such inability or delay shall constitute an actual
or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of Basic Rent or Additional Rent, or relieve Tenant
from any of its obligations under this Lease, or impose any liability upon
Landlord or its agents by reason of inconvenience or annoyance to Tenant or by
reason of injury to or interruption of Tenant's business, or otherwise.
12. Destruction
12.1 Repair by Landlord. If the Premises shall be damaged by
fire or other casualty insured against by Landlord's fire and extended coverage
insurance policy covering the Building, and if Tenant shall give prompt notice
to Landlord of such damage, Landlord shall repair such damage; provided
however, that Landlord shall have no obligation to repair any damage to or to
replace Tenant's Property, Approved Alterations (except as described below) or
any other property or effects of Tenant and Landlord shall have no liability
for, or obligation to repair, water damage caused by sprinkler leakage, blocked
or burst pipes or otherwise; provided further, Landlord's obligation to repair
any damage to the Premises and the Approved Alterations shall be limited to the
extent of the proceeds of any insurance policy carried by Landlord or Tenant
which are disbursed to the Landlord. Except as otherwise provided in this
Section 12, if the entire Premises shall be rendered untenantable by reason of
any such damage, the Basic Rent shall xxxxx for the period from the date of
such damage to the date when the Premises shall again be available for
occupancy by Tenant, which date shall not exceed one hundred twenty (120) days
from the date of such damage and if the period of time does exceed this one
hundred twenty (120) days, Tenant has the right to cancel this Lease with
thirty (30) days written notice to Landlord. If only a part of the Premises
shall be rendered untenantable, the Basic Rent shall xxxxx for such period in
the proportion that the rentable area of the part of the Premises so rendered
untenantable bears to the total rentable area of the Premises.
12.2 Termination of Lease in the Event of Total Destruction.
Notwithstanding the provisions of Section 12.1 hereof, if, prior to or during
the Term (a) the Premises shall be totally damaged or rendered wholly
untenantable by fire or other casualty, and if Landlord shall determine, in its
sole discretion, not to restore the Premises, or (b) the Building shall be so
damaged by fire or other casualty that, in Landlord's opinion, substantial
alteration, demolition or reconstruction of the Building shall be required
(whether or not the Premises shall have been damaged or rendered untenantable),
then, in any of such events, Landlord, at Landlord's option, may give to Tenant
within ninety (90) days after such fire or other casualty, a thirty (30) days'
notice of termination of this Lease and, in the event such notice is given,
this Lease and the Term shall terminate upon the expiration of such thirty (30)
days with the same effect as if the date of expiration of such thirty (30) days
were the Term Expiration Date; and the Basic Rent and Additional Rent shall be
apportioned as of such date and any prepaid portion of Basic Rent or Additional
Rent for any period after such date shall be refunded by Landlord to Tenant.
12.3 Landlord's Insurance. Landlord shall attempt to obtain and
maintain, throughout the Term, in Landlord's casualty insurance policies,
provisions to the effect that such policies shall not be invalidated should the
insured waive, in writing, prior to loss, any or all right of recovery against
any party for loss occurring to the Building. In the event that at any time
Landlord's casualty insurance carriers shall exact an additional premium for
the inclusion of such or similar provisions, Landlord shall give tenant notice
thereof. In such event, if Tenant agrees, in writing, to reimburse Landlord for
such additional premium for the remainder of the Term, Landlord shall require
the inclusion of such or similar provisions by Landlord's casualty insurance
carriers. As long as such or similar provisions are included in Landlord's fire
insurance policies then in force, Landlord hereby waives any right of recovery
against Tenant, any other permitted occupant of the Premises, and any of their
servants, employees, agents or contractors, for any loss occasioned by fire or
other casualty that is an insured risk under such policies. In the event that
at any time Landlord's casualty insurance carriers shall not include such or
similar provisions in Landlord's fire insurance policies, the waivers set forth
in the foregoing sentence shall be deemed of no further force or effect.
9
10
12.4 Tenant not Relieved from Liability. Except to the extent
expressly provided in Section 12.3 hereof, nothing contained in this Lease
shall relieve Tenant of any liability to Landlord or to its insurance carriers
which Tenant may have under law or under the provisions of this Lease in
connection with any damage to the Premises or the Building by fire or other
casualty.
12.5 No Abatement of Rent if Damage Caused by Tenant.
Notwithstanding the foregoing provisions of Section 12 hereof, if any such
damage is due to the fault or neglect of Tenant, any person claiming through or
under Tenant, or any of their servants, employees, agents, contractors,
visitors or licensees, then there shall be no abatement of Basic Rent or
Additional Rent by reason of such damages, unless Landlord is reimbursed for
such abatement of Basic Rent or Additional Rent pursuant to any rental
insurance policies that Landlord may, in its sole discretion, elect to carry.
13. Eminent Domain
13.1 Total Condemnation. If all of the Premises is condemned or
taken in any manner for public or quasi-public use, including but not limited
to a conveyance or assignment in lieu of a condemnation or taking, this Lease
shall automatically terminate as of the date of dispossession of Tenant as a
result of such condemnation or other taking. If a part of the Premises is so
condemned or taken, this Lease shall automatically terminate as to the portion
of the Premises so taken as of the date of dispossession of Tenant as a result
of such condemnation or taking. If such portion of the Building is condemned or
otherwise taken so as to require, in the opinion of Landlord, a substantial
alteration or reconstruction of the remaining portions thereof, this Lease may
be terminated by Landlord, as of the date of dispossession of Tenant as a
result of such condemnation or taking, by written notice to Tenant within sixty
(60) days following notice to Landlord as of the date on which said
dispossession will occur.
13.2 Landlord Entitled to Award. Landlord shall be entitled to
the entire award in any condemnation proceeding or other proceeding for taking
for public or quasi-public use, including, without limitation, any award made
for the value of the leasehold estate created by this Lease. No award for any
partial or entire taking shall be apportioned, and Tenant hereby assigns to
Landlord any award that may be made in such condemnation or other taking,
together with any and all rights of Tenant now or hereafter arising in or to
same or any part thereof; provided, however, that nothing contained herein
shall be deemed to give Landlord any interest in or to require Tenant to assign
to Landlord any separate award made to Tenant specifically for its relocation
expenses, the taking of personal property and fixtures belonging to Tenant or
the interruption of or damage to Tenant's business, provided such award does
not otherwise diminish Landlord's award.
13.3 Partial Condemnation. In the event of a partial
condemnation or other taking in any manner for public or quasi-public use that
does not result in a termination of this Lease as to the entire Premises, the
Basic Rent and Additional Rent shall xxxxx in proportion to the portion of the
Premises taken by such condemnation or other taking. It is understood and
agreed that in the event of a partial condemnation, Landlord and Tenant will
discuss in a reasonable businesslike manner, what space is useable for Tenant.
13.4 No Termination of Lease. If all or any portion of the
Premises is condemned or otherwise taken for public or quasi-public use for a
limited period of time, this Lease shall remain in full force and effect and
Tenant shall continue to perform all of the terms, conditions and covenants of
this Lease, and Basic Rent and Additional Rent shall xxxxx in proportion to the
portion of the Premises taken during such temporary condemnation or other
taking. It is understood and agreed that in the event of a partial
condemnation, Landlord and Tenant will discuss in a reasonable businesslike
manner, what space is useable for Tenant.
14. Assignment and Subletting
14.1 No Assignment or Subletting Permitted. Tenant shall not
directly or indirectly, voluntarily or by operation of law, sell, assign,
sublease, encumber, pledge or otherwise transfer or hypothecate all or any part
of the Premises or Tenant's leasehold estate hereunder, without first obtaining
Landlord's prior written consent, which consent shall not be unreasonably
withheld, delayed or conditioned. Notwithstanding the foregoing, a corporate
reorganization within the meaning of Section 368 of the Internal Revenue Code
of 1986 shall not be considered an assignment or subletting within the meaning
of this Section 14.1. Tenant agrees that any permitted assignment or subletting
hereunder may be conditioned upon payment of consideration to be agreed upon by
Landlord and Tenant.
14.2 Procedure for Assignment, Subletting. If Tenant desires at
any time to assign, sublease or otherwise transfer the Premises or any portion
thereof, it shall send a written notice to Landlord, which notice shall contain
(a) the name of the proposed occupancy or subtenant, (b) the nature of the
proposed occupant's or subtenant's business to be carried on in the Premises,
(c) the portion(s) of the Premises to be subject to such assignment or sublease
and the other terms and provisions of the proposed assignment or sublease, (d)
such financial information as Landlord may reasonably request concerning the
proposed occupant or subtenant, and (e) a true copy of a proposed assignment or
sublease.
14.3 No Release of Tenant. No assignment or sublease by Tenant
shall relieve Tenant of any obligation to be performed by Tenant under this
Lease, whether arising before or after the assignment or sublease. Any
assignment or sublease that is not in compliance with this Section 14 shall be
void and, at the option of Landlord, shall constitute a default by Tenant under
this Lease.
10
11
15. Building Services.
15.1 Standard Services. Landlord shall furnish reasonably
adequate electrical power for all normal office machines and lighting, water
and char services in a manner consistent with similar office buildings in
Xxxxxxxxxx County without additional cost to Tenant. Landlord shall furnish hot
and cold water at those points of supply provided for the general use of all of
the tenants in the Building, as well as central heat and air-conditioning in
season, at such time as Landlord normally furnishes these services to other
tenants in the Building and at such temperatures and in such amounts as are
considered by Landlord to be standard, Monday through Friday, from 8:30 A.M. to
6:00 P.M., and on Saturday from 9:00 A.M. to 1:00 P.M. or other such hours as
Landlord may in its discretion broaden but not lessen, exclusive of Sundays and
all Federally-designated and Maryland designated holidays which Landlord may
choose to acknowledge during such seasons of the year when such services are
normally and usually furnished in modern office buildings in the Washington,
D.C. Metropolitan Area. Landlord shall provide routine maintenance, painting
and electrical lighting service for all public areas and special service areas
of the Building. In the event an air conditioner unit or units (in excess of
Building Standard Improvements), for the purposes of cooling computers or other
office machinery, are installed by Tenant, the operation of the unit(s) shall
be under Tenant's control, and the maintenance costs shall be the obligation of
Tenant. Failure by Landlord to any extent to furnish these defined services
unless due to Landlord's gross negligence, or any cessation thereof, or delay
thereof caused by breakdown, maintenance, repairs, strikes, scarcity of labor
or materials, acts of God or from any other cause, shall not render Landlord
liable in any respect for damages to either person or property, nor shall such
events be construed an eviction of Tenant, nor work an abatement of Basic Rent
or Additional Rent, nor relieve Tenant from the fulfillment of any term,
condition, covenant or agreement contained in this Lease. Should any of the
Building equipment or machinery break down, or for any cause or reason cease to
function properly, Landlord shall use reasonable diligence to repair the same
promptly, but Tenant shall have no claim for rebate of Basic Rent or Additional
Rent or for any damages on account of any interruptions in service occasioned
thereby or resulting therefrom. Tenant shall furnish Landlord with a list of
office equipment which shall become a part of this Lease and marked as
Exhibit E.
15.2 Additional Services. Should Tenant require heating and
cooling services beyond the hours and/or days stipulated in Section 15.1,
provided Tenant gives Landlord notice of the nature and extent of additional
services desired by 1:00 P.M. on any day it desires additional services in the
evening, or by 1:00 P.M. on the Friday before it desires additional services on
the succeeding Saturday or Sunday, or by 1:00 P.M. of the last normal business
day preceding any holidays Landlord has indicated it will acknowledge, then, in
any such event Landlord will furnish such additional services requested at
$55.00 per hour; provided, further, that there will be a minimum charge of four
(4) hours each time overtime services are required.
16. Default; Remedies
16.1 Events of Default. The following shall constitute an event
of default under this Lease:
(a) The failure to pay any amount of Basic Rent or
Additional Rent in full within five (5) business days after the same is due.
However, Landlord shall waive the late charge set forth herein for the first
two (2) late payments during each Lease Year of the term of this Lease,
provided that such payments shall be made within Ten (10) days of written
notice to Tenant to such lateness.
(b) The failure to perform or honor any other covenant or
condition made under this Lease, provided Tenant shall have a grace period of
ten (10) days from the date of written notice from Landlord within which to
cure any such failure governed by this subparagraph but not specifically by the
other subparagraphs of this Section 16-1; provided however, that with respect
to any such default, that cannot reasonably be cured within such ten (10) day
grace period, Tenant shall not be deemed in default if Tenant commences to cure
within ten (10) days from Landlord's notice and continues to prosecute
diligently the curing thereof to completion within a reasonable time; and
provided, further, that if any such failures which would be deemed defaults
hereunder upon expiration of such grace period occur more often that twice in
any twelve month period, the foregoing requirements of written notice and a
grace period shall be deemed waived with respect to any such subsequent
failures for the remainder of the Term.
(c) If any representation or warranty made by Tenant, or
others on behalf of Tenant, under or pursuant to the Lease shall prove to
have been false or misleading in any material respect (including by way of
material omissions) as of the date on which such representation or
warranty was made.
(d) If Tenant makes or consents to an assignment for the
benefit of creditors or a common law composition of creditors, or a receiver of
Tenant's assets is appointed, or Tenant files a voluntary petition in any
bankruptcy or insolvency proceeding, or an involuntary petition in bankruptcy
or insolvency proceeding is filed against Tenant and not discharged or
dismissed within thirty (30) days, or Tenant is adjudicated bankruptcy or
admits in writing its inability to pay its debts or that it is insolvent.
(e) Unless adequately covered by insurance in the
reasonable opinion of the Landlord, the entry of a final judgment for the
payment of money in excess of $50,000.00 against the Tenant and the failure by
the Tenant to discharge the same, or cause it to be discharged, or bonded off
to the Landlord's satisfaction, within thirty (30) days from the date of the
order, decree or process under which or pursuant to which such judgment was
entered.
11
12
(f) If Tenant shall dissolve or liquidate, and such
dissolution or liquidation is not in connection with a reorganization, merger
or consolidation approved in writing by Landlord.
16.2 Landlord's Remedies. Upon the occurrence of an Event of
Default which is not cured by Tenant within the grace periods specified in
Section 16.1 hereof, Landlord shall have the following rights and remedies in
addition to all other rights or remedies available to Landlord in law or
equity:
(a) Landlord may terminate this Lease by notice to Tenant
(and Tenant hereby expressly waives any other or additional notice to quit or
notice of Landlord's intention to re-enter), whereupon this Lease and the Term
shall terminate, Tenant shall quit, vacate and surrender the Premises and all
amounts accrued and unpaid Basic rent and Additional Rent shall be due and
payable in full.
(b) Upon any termination of this Lease pursuant to Section
16.2(a) or Section 17, Landlord may (i) proceed to re-enter the Premises and
recover possession thereof; (ii) as attorney-in-fact for Tenant, remove
therefrom all persons and Tenant's Property, store such Tenant's Property in a
public warehouse or elsewhere at the cost, and for the account, of Tenant, sell
such Tenant's Property and apply the proceeds thereof to payment of Tenant's
obligations and liabilities under this Lease, and hold the balance of such
proceeds, if any, in trust for Tenant; (iii) restore the Premises to good order
and repair or otherwise prepare the Premises for reletting by making such
alterations, repairs or replacements in the Premises as Landlord, in its
reasonable discretion deems necessary or appropriate; and (iv) relet the
Premises for such rent, for such term (which may be longer or shorter than the
Term originally reserved hereunder) and upon such other terms and conditions as
are not unreasonable under the circumstances. Tenant shall be liable for all
damages sustained by Landlord in connection with such termination of this
Lease, including without limitation the excess of the aggregate amounts of
Basic Rent and Additional Rent reserved under this Lease for the Term
originally reserved hereunder over net amounts actually realized in reletting
the Premises, reasonable attorneys' fees, brokerage commissions and the costs
and expenses of recovering possession of the Premises and restoring the
Premises to first class condition for reletting.
Any such damages may, at Landlord's election, be
recovered in one or more actions upon termination of the Term, at the time of
any initial reletting or from time to time as such damages may become more
easily ascertainable by successive relettings. In no event shall Landlord be
liable for any failure to relet the Premises or for any failure to collect any
amounts due on account of relettings and in no event shall Tenant have any
right to any excess of amounts received by Landlord on account of relettings
over amounts which Tenant may be liable hereunder.
(c) Landlord may elect not to terminate this Lease but to
recover the Basic Rent and Additional Rent accruing hereunder in one or more
actions as the same become due or, in advance, the present value of Basic rent
and Additional Rent to become due hereunder, discounted by a factor of eight
percent (8%) per annum; or, as attorney-in-fact for Tenant, Landlord may from
time to time sublet the Premises or any part thereof for such term or terms
(which may extend beyond the Term) and at such rent and such other terms as
Landlord in its reasonable discretion may deem advisable, with the right to
make alterations and repairs to the Premises. Upon each such subletting (i)
Tenant shall be immediately liable for payment to Landlord of, in addition to
Basic Rent and Additional Rent due hereunder, the cost of such subletting and
such alterations and repairs incurred by landlord and the amount, if any, by
which the Basic Rent and Additional Rent for the period of such subletting (to
the extent such period does not exceed the Term) exceeds the amount to be paid
as Basic Rent and Additional Rent for the Premises for such period, or (ii) at
the option of Landlord, rents received from such subletting shall be applied,
first, to payment of any indebtedness other than Basic Rent and Additional Rent
due hereunder from Tenant to Landlord; second, to the payment of any costs of
such subletting and of such alterations and repairs; third, to payment of
Basic Rent and Additional Rent due and unpaid hereunder, and the residue, if
any, shall be held by Landlord and applied in payment of future Basic Rent and
Additional Rent as the same become due hereunder.
If Tenant has been credited with any rent to be
received by such subletting under clause (i) and such rent shall not be
promptly paid to Landlord by the subtenant(s), or if such rentals received from
such subletting under clause (ii) during any month are less than those to be
paid during that month by Tenant hereunder, Tenant shall pay any such
deficiency to Landlord. Such deficiency shall be calculated and paid monthly.
No subletting of the Premises by Landlord, as attorney-in-fact for Tenant,
shall be construed as an election on its part to terminate this Lease unless a
notice of such termination is given to Tenant. Notwithstanding any such
subletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach; and
(d) Landlord may have a receiver appointed for Tenant,
upon application by Landlord, to take possession of the Premises and to apply
any rental collected from the Premises and to exercise all other rights and
remedies granted to Landlord as attorney-in-fact for Tenant pursuant to Section
16.2(b) hereof.
(e) Tenant hereby expressly and unconditionally waives, in
connection with any suit, action or proceeding brought by Landlord under this
Lease, any and every right it may have to (i) injunctive relief, (ii) a trial
by jury, (iii) interpose any counterclaim therein, unless required by the Rules
of Procedure and (iv) have the same consolidated with any other or separate
suit, action or proceeding, unless required by the Rules of Procedure. Nothing
herein contained shall prevent or prohibit Tenant from instituting or
maintaining a separate action against Landlord with respect to any asserted
claim.
12
13
17. Insolvency or Bankruptcy. Upon the appointment of a receiver to
take possession of all or substantially all of the assets of Tenant, or an
assignment by Tenant for the benefit of creditors, or any action taken or
suffered by Tenant under any insolvency, bankruptcy, reorganization, moratorium
or other debtor relief act or statute, whether now existing or hereafter amended
or enacted, this Lease shall automatically terminate without notice or other
action by Landlord or Tenant; provided further, that Landlord shall have the
right, within thirty (30) days after Landlord has actual knowledge of the
events effecting such termination, to revoke such termination and reinstate
this Lease retroactively to the date of such termination. Upon, and at any time
after, such termination, Landlord shall have the right to exercise the remedies
reserved under Section 16.2(b). In no event shall this Lease or any rights or
privileges hereunder be an asset of Tenant under any bankruptcy, insolvency,
reorganization or other debtor relief proceedings.
18. Fees and Expenses; Indemnity; Liability Insurance
18.1 Performance by Landlord. If Tenant shall default in the
performance of its obligations under this Lease, Landlord, at any time
thereafter and with reasonable notice, may remedy such default for Tenant's
account and at Tenant's expense, without thereby waiving any other rights or
remedies of Landlord with respect to such default.
18.2 Indemnification by Tenant. Tenant agrees to indemnify
Landlord, its employees, agents, contractors, mortgagees and successors in
interest against and save Landlord, its employees, agents, contractors,
mortgagees and successors in interest harmless from any and all loss, cost,
liability, damage and expense including, without limitation, penalties, fires
and reasonable counsel fees, incurred in connection with or arising from any
cause whatsoever in, on or about the Premises, including, without limiting the
generality of the foregoing (a) any default by Tenant in the observance or
performance of any of the terms, covenants or conditions of this Lease on
Tenant's part to be observed or performed, or (b) the use or occupancy or
manner of use or occupancy of the Premises by Tenant or any person or entity
claiming through or under Tenant, of (c) the condition of the Premises or any
occurrence or happening on the Premises from any cause whatsoever, unless
caused by Landlord's gross negligence, or (d) any acts, omissions or negligence
of Tenant or any person or entity claiming through or under Tenant, or of the
contractors, agents, servants, employees, visitors or licensees of Tenant or
any such person or entity, in, on or about the Premises or the Building, either
prior to, during, or after the expiration of the Term, including without
limitation, any acts, omissions or negligence in the making or performing of
any Alterations. Tenant further agrees to indemnify and save harmless Landlord,
Landlord's agents, and the lessor or lessors under all ground or underlying
leases, from and against any and all loss, cost, liability, damage and expense
including, without limitation, reasonable counsel fees, incurred in connection
with or arising from any claims by any persons by reason of injury to persons
or damage to property occasioned by any use, occupancy, condition, occurrence,
happening, act, omission or negligence referred to in the preceding sentence.
18.3 Liability Insurance. Tenant shall procure at its cost and
expense and keep in effect during the Term comprehensive general liability
insurance including contractual liability naming Landlord as an additional
insured thereunder, with a minimum combined single limit of liability of One
Million Dollars ($1,000,000.00). Such insurance shall specifically include the
liability assumed hereunder by Tenant (provided that the amount of such
insurance shall not be construed to limit the liability of Tenant hereunder),
and shall provide that it is primary insurance, and not excess over or
contributory with any other valid, existing and applicable insurance in force
for or on behalf of Landlord, and shall provide that Landlord shall receive
thirty (30) days' written notice from the insurer prior to any cancellation or
change of coverage.
18.4 Delivery of Policies. Tenant shall deliver policies of all
required insurance, or certificates thereof, to Landlord on or before the Lease
Commencement Date, and thereafter at least thirty (30) days before the
expiration dates of expiring policies. In the event Tenant shall fail to
procure such insurance, or to deliver such policies or certificates, Landlord
may, at its option, after reasonable notice to Tenant, procure same for the
account of Tenant, and the cost thereof shall be paid to Landlord as Additional
Rent within five (5) days after delivery to Tenant of bills therefor. Tenant's
compliance with the provisions of this Section 18.4 shall in no way limit
Tenant's liability under any of the other provisions of this Section.
18.5 Landlord Not Liable. Landlord shall not be responsible for
or liable to Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying adjoining premises or any part of
the premises adjacent to or connection with the Premises or any part of the
Building or of third parties either legally or illegally within the Premises or
the Building or for any loss or damage resulting to Tenant or its property from
burst, stopped or leaking water, gas, sewer or steam pipes or for any damage or
loss or property within the Premises from any causes whatsoever, including
theft or vandalism, unless caused by Landlord's gross negligence.
13
14
18.6 Payment by Tenant. Except as specifically provided to the
contrary in this Lease, Tenant shall pay to Landlord, within five (5) days
after notice by Landlord to tenant of the amount thereof: (a) sums equal to all
expenditures made and monetary obligations incurred by Landlord including,
without limitation, expenditures made and obligations incurred for reasonable
counsel fees, in connection with the remedying by Landlord for Tenant's account
pursuant to the provisions of Section 18.1 hereof; (b) sums equal to all
losses, costs, liabilities, damages and expenses referred to in Section 18.2
hereof; and (c) sums equal to all expenditures made and monetary obligations
incurred by Landlord, including, without limitation, expenditures made and
obligations incurred for reasonable counsel fees, in collecting or attempting
to collect the Basic Rent, Additional Rent or any other sum of money accruing
under this Lease or in enforcing or attempting to enforce any rights of
Landlord under this Lease or pursuant to law, if Landlord prevails. Any sum of
money (other than Basic Rent) accruing from Tenant to Landlord pursuant to any
provision of this Lease, whether prior to or after the Lease Commencement Date,
may, at Landlord's option, be deemed Additional Rent. Tenant's obligations
under this 18.6 shall survive the expiration or earlier termination of the
Term.
19. Access to Premises; Landlord's Right to Enter. Landlord reserves
and shall have the right to enter the Premises at all reasonable times with
Landlord providing forty-eight (48) hours advance notice to Tenant, except in
the case of an emergency, and Landlord will to the extent possible, make a
diligent effort not to inconvenience Tenant to respect same, to show the
Premises to prospective purchasers, mortgagees or tenants, to post notices of
nonresponsibility, and to alter, improve or repair the Premises, adjacent
premises and any other portion of the Building or any systems serving any of
the same, without abatement of Basic Rent or Additional Rent, and may for that
purpose erect, use and maintain scaffolding, pipes, conduits and other
necessary structures in and through the Premises where reasonably required by
the character of the work to be performed; provided that the entrance to the
Premises shall not be blocked thereby. Landlord and its agents shall also have
unrestricted access to the Premises at any time in the event of an emergency,
without abatement of Basic Rent or Additional Rent. Tenant hereby waives any
claim for damages for any injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or quiet enjoyment of the Premises or
any other loss occasioned thereby. For each of the aforesaid purposes, Landlord
shall at all times have and retain a key with which to unlock all of the doors
in, upon and about the Premises, excluding Tenant's vaults and safes, or
special security areas (designated as such by Tenant in advance), and Landlord
shall have the right to use any and all means that Landlord may deem necessary
or proper to open said doors in an emergency, in order to obtain entry to any
portion of the Premises, and any entry to the Premises or portions thereof
obtained by Landlord by any of said means, or otherwise, shall not under any
circumstances be construed or deemed to be a forcible or unlawful entry into,
or a detainer of, the Premises, or an eviction, actual or constructive, of
Tenant from the Premises or any portion thereof. Landlord shall also have the
right at any time, without same constituting an actual or constructive eviction
and without incurring any liability to Tenant therefor, to change the
arrangement and/or location of entrances or passageways, doors and doorways,
and corridors, elevators, stairs, toilets and other public parts of the
Building.
20. Waiver, Release
20.1 No Waiver. No failure by Landlord to insist upon the strict
performance of any obligation of Tenant under this Lease or to exercise any
right, power or remedy consequent upon a breach thereof, no acceptance of full
or partial Basic rent or Additional Rent during the continuance of any such
breach, and no acceptance of the keys to or possession of the Premises prior to
the termination of the Term by any employee of Landlord shall constitute a
waiver of any such breach or of such term, covenant or condition or operate as
a surrender of this Lease. No payment by Tenant or receipt by Landlord or a
lesser amount than the aggregate of all Basic Rent and Additional Rent then due
under this Lease shall be deemed to be other than on account of the first items
of such Basic Rent and Additional Rent then accruing or becoming due, unless
Landlord elects otherwise; and no endorsement or statement on any check and no
letter accompanying any check or other payment of Basic Rent or Additional Rent
in any such lesser amount and no acceptance of any such check or other such
payment by Landlord shall constitute an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's right to
recover the balance of such Basic Rent or Additional Rent or to pursue any
other legal remedy.
20.2 Modifications in Writing. Neither this Lease nor any term
or provision hereof may be changed, waived, discharged or terminated orally,
and no breach thereof shall be waived, altered or modified, except by a written
instrument signed by the party against which the enforcement of the change,
waiver, discharge or termination is sought. No waiver of any breach shall
affect or alter this Lease, but each and every term, covenant and condition of
this Lease shall continue in full force and effect with respect to any other
then existing or subsequent breach thereof.
14
15
21. Tenant's Certificates. Tenant, at any time and from time to time
upon not less than fifteen (15) days' prior written notice from Landlord, will
execute, acknowledge and deliver to Landlord and, at Landlord's request, to any
prospective purchaser, ground or underlying lessor or mortgagee of any part of
the Building and Real Property, a certificate of Tenant stating: (a) that
Tenant has accepted the Premises (or, if Tenant has not done so, that Tenant
has not accepted the Premises and specifying the reasons therefor), (b) the
Commencement and Term Expiration Dates of this Lease, (c) that this Lease is
unmodified and in full force and effect (or, if there have been modifications,
that same is in full force and effect as modified and stating the
modifications), (d) whether or not there are then existing any defenses against
the enforcement of any of the obligations of Tenant under this Lease (and, if
so, specifying same), (f) the dates, if any, to which the Basic Rent and
Additional Rent and other charges under this Lease have been paid, including
but not limited to current financial statements for Tenant (and any Guarantors
of Tenant's obligation hereunder), which is a condition of Landlord's loan
documents and may be required in writing by Landlord's lender. If any documents
are requested from Tenant that are considered to be confidential or proprietary
in nature, Landlord and its lenders will keep such information private. It is
intended that any such certificate of Tenant delivered pursuant to this Section
21 may be relied upon by Landlord and any prospective purchaser, ground or
underlying lessor or mortgagee of any part of the Real Property.
22. Rules and Regulations. Tenant, its agents, employees, invitees,
licensees, customers, clients and guests shall at all times faithfully observe
and comply with the reasonable rules and regulations attached hereto as Exhibit
C, and such other reasonable rules and regulations as may be promulgated from
time to time by Landlord, and all modifications thereof and additions thereto,
from time to time, put into effect by Landlord. Landlord shall not be
responsible for the nonperformance by any other tenant or occupant of the
Building of any said rules and regulations. In the event of an express and
direct conflict between the terms, covenants, agreements and conditions of this
Lease and the terms, covenants, agreements and conditions of such rules and
regulations, as modified and amended from time to time by Landlord, this Lease
shall control.
23. Tax on Tenant's Personal Property. At least ten (10) days prior
to delinquency, Tenant shall pay all taxes levied or assessed upon Tenant's
equipment, furniture, fixtures and other personal property located in or about
the Premises. If the assessed value of Landlord's property is increased by the
inclusion therein of a value placed upon Tenant's equipment, furniture,
fixtures or other personal property, Tenant shall pay to Landlord, upon demand
and proof, the taxes so levied against Landlord, or the portion thereof
resulting from said increase in assessment.
24. Authority. The persons executing this Lease on behalf of Tenant
hereby covenant and warrant that Tenant is a duly authorized and existing
entity, that Tenant has and is qualified to do business in the State of
Maryland and Delaware, that Tenant has full right and authority to enter into
this Lease, and each person signing on behalf of Tenant is authorized to do so.
Upon Landlord's request, Tenant shall provide Landlord with evidence reasonably
satisfactory to Landlord confirming the foregoing covenants and warranties.
25. Signage. At no cost to Tenant, Tenant shall be allowed one
listing in the directory for the Building in the main entrance lobby and
lettering on the main entry door to the Premises, as approved by Landlord. No
other sign, advertising or notice shall be inscribed, affixed or displayed on
any part of the outside or inside or the Building, unless such sign
specifications and location are approved in writing in advance by Landlord. If
any sign, advertisement or notice is improperly exhibited Landlord shall have
the right to remove the same, and Tenant shall be liable for any and all
expenses incurred by Landlord in such removal.
26. Parking. Tenant's shall have the right without charge to use the
parking facilities of the Building. Tenants use of such facilities shall be in
common with other tenants or occupants of the Building and their respective
licensees and permitees and Tenant shall not be entitled to assigned parking
spaces. In any event, Tenant's use of the parking facilities shall be in
accordance with the rules and regulations of Landlord or any operator of such
facilities in effect from time to time. The parking facilities shall be lighted
during evening hours. Tenant shall be allowed the use of 70 parking spaces.
Landlord has the right to restrict the use of the parking area to this number.
27. Miscellaneous
27.1 Notices. Except as otherwise expressly provided in this
Lease, any bills, statements, notices, demands, requests or other
communications given or required to be given under this Lease shall be
effective only if rendered or given in writing, sent by mail or delivered
personally as follows:
to Tenant: Cryomedical Sciences, Inc.
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: X.X. Xxxxxxxxxxx
to Landlord: Xxxx Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
15
16
or to such other address as either Landlord or Tenant may designate as its new
address for such purpose by notice to the other in accordance with the
provisions of this Section. Any such xxxx, statement notice, demand, request or
other communication shall be deemed to have been rendered or given two (2) days
after the date when it shall have been mailed as provided in this Section if
sent by registered or certified mail, or upon the date personal delivery is
made. If Tenant is notified of the identity and address of Landlord's mortgagee
or ground or underlying lessor, Tenant shall give to such mortgagee or ground
or underlying lessor notice of any default by Landlord under the terms of this
Lease in writing sent by registered or certified mail, and such mortgagee or
ground or underlying lessor shall be given a reasonable opportunity to cure
such default prior to Tenant's exercising any remedy available to it.
27.2 Interpretation. The words "Landlord" and "Tenant" as used
herein shall include the plural as well as the singular. The words used in the
neuter gender include the masculine and the feminine. The captions preceding
the articles of this Lease have been inserted solely as a matter of convenience
and such captions in no way define or limit the scope or intent of any
provision of this Lease.
27.3 Successors and Assigns. The terms, covenants and conditions
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant and, except as otherwise provided herein, their respective personal
representatives and successors and assigns; provided, however, upon the sale,
assignment or transfer by the Landlord named herein (or by any subsequent
landlord) of its interest in the building as owner or lessee, including any
transfer by operation of law, the Landlord (or subsequent landlord) shall be
relieved from all subsequent obligations or liabilities under this Lease, and
all obligations subsequent to such sale, assignment or transfer (but not any
obligations or liabilities that have accrued prior to the date of such sale,
assignment or transfer) shall be binding upon the grantee, assignee or other
transferee of such interest, and any such grantee, assignee or transferee, by
accepting such interest, shall be deemed to have assumed such subsequent
obligations and liabilities.
27.4 Severability. If any provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provisions to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent permitted by law.
27.5 Applicable Law. This Lease shall be construed and enforced
in accordance with the laws of the State of Maryland.
27.6 No Option to Lease. Submission of this instrument for
examination or signature by Tenant does not constitute a reservation of or an
option for lease, and it is not effective as a lease or otherwise until
execution and delivery by both Landlord and Tenant.
27.7 Entire Agreement. This instrument, including the Exhibits
hereto, which are made a part of this Lease, contains the entire agreement
between the parties and all prior negotiations and agreements are merged herein.
Neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the Premises, the Building, the Real Property or
this Lease except as expressly set forth herein, and no rights, easements or
licenses are or shall be acquired by Tenant by implication or otherwise unless
expressly set forth herein.
27.8 Inspection by Landlord. The review, approval, inspection or
examination by Landlord of any item to be reviewed, approved, inspected or
examined by Landlord under the terms of this Lease or the Exhibits attached
hereto shall not constitute the assumption of any responsibility by Landlord
for either the accuracy or sufficiency of any such item or the quality or
suitability of such item for its intended use. Any such review, approval,
inspection or examination by Landlord is for the sole purpose of protecting
Landlord's interests in the Building and under this Lease, and no third
parties, including, without limitation, Tenant or any person or entity claiming
through or under Tenant, or the contractors, agents, servants, employees,
visitors or licensees of Tenant or any such person or entity, shall have any
rights hereunder.
27.9 Legal Fees Paid by Prevailing Party. In the event that
either Landlord or Tenant fails to perform any of its obligations under this
Lease or in the event a dispute arises concerning the meaning or interpretation
of any provision of this Lease, the defaulting party or the party not
prevailing in such dispute, as the case may be, shall pay any and all costs and
expenses incurred by the other party in enforcing or establishing its rights
hereunder, including, without limitation, court costs and reasonable counsel
fees.
27.10 Surrender of Premises. Upon the expiration or sooner
termination of the Term, Tenant will quietly and peacefully surrender to
Landlord the Premises in the condition in which they are required to be kept as
provided hereunder, ordinary wear and tear excepted.
27.11 Quiet Enjoyment. Upon Tenant paying the Basic Rent and
Additional Rent and performing all of Tenant's obligations under this Lease,
Tenant may peacefully and quietly enjoy the Premises during the Term as against
all persons or entities lawfully claiming by or through Landlord; subject,
however, to the provisions of this Lease and to any mortgages, ground or
underlying lease referred to herein.
16
17
27.12 No Reduction in Rent. Tenant covenants and agrees that
no diminution of light, air or view by any structure that my hereafter be
erected (whether or not by Landlord) shall entitle Tenant to any reduction of
Basic Rent or Additional Rent under this Lease, result in any liability of
Landlord to Tenant, or in any other way affect this Lease or Tenant's
obligations hereunder.
27.13 Holding Over by Tenant. Any holding over after the
Term Expiration Date or the termination of the Term if sooner with the consent
of Landlord shall be construed to be a tenancy from month to month at a rental
equal to One Hundred Twenty-Five percent (125%) of the Basic Rent herein
specified, together with an amount estimated by Landlord for the monthly
Additional Rent payable under this Lease, and shall otherwise be on the terms
and conditions herein specified so far as applicable. Any holding over without
Landlord's consent shall constitute a default by Tenant and entitle Landlord to
reenter the Premises as provided in Section 16 hereof.
27.14 Broker; Indemnification Therefor. Tenant warrants that
they have not engaged any Broker with relation to this transaction, therefore
no commission will be due.
27.15 No Recordation of Lease by Tenant. Tenant will not
record this Lease or any memorandum or short form hereof, but at the request of
Landlord, Tenant shall execute, acknowledge and deliver to Landlord in proper
form for recordation a memorandum of this Lease, setting forth the terms and
provisions hereof in summary form.
27.16 No Merger of Estates. The fee title of Landlord and
the leasehold estate of Tenant shall at all times be separate and apart, and
shall in no event be merged, notwithstanding the fact that this Lease or the
leasehold estate created hereby, or any interest in either thereof, may be held
directly or indirectly by or for the account of any person who shall own the
fee estate in the Premises or any portion thereof; and no such merger of
estates shall occur by operation of law, or otherwise, unless and until all
persons at the time having any interest in the fee estate and all persons
having any interest in the Lease or the leasehold estate, including any
mortgagee or leasehold mortgagee, shall join in the execution of a written
instrument affecting such merger of estates.
27.17 Security Deposit. Simultaneously with the execution of
this Lease, Landlord hereby acknowledges existence of previously deposited
Security Deposit in the sum of Eighteen Thousand Seven Hundred Twenty-Seven and
00/100 Dollars ($18,727.00), as a security deposit for the performance by
Tenant of the provisions of this Lease. Such deposit shall be considered as
security for the payment and performance by Tenant of all Tenant's obligations,
covenants, conditions and agreements under this Lease. In the event of any
default by Tenant hereunder, landlord shall have the right, but shall not be
obligated to apply all or any portion of the deposit to cure such default, in
which event Tenant shall be obligated to promptly deposit with Landlord the
amount necessary to restore the deposit to its original amount. If Tenant is
not in default at the expiration of the Term, Landlord shall return the
security deposit to Tenant.
27.18 Right to Relocate. Intentionally Deleted.
27.19 Additional Documents. This Lease includes and
incorporates the Exhibits listed in the Table of Contents and the following
additional documents, all of which are attached hereto and made a part hereof
(check if applicable):
( ) First Addendum to Lease ( ) Guarantee of Lease
( X ) Other: Exhibit "A", "C"
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease Agreement
as of the day and year first above written.
LANDLORD: TENANT:
XXXX CORPORATION CRYOMEDICAL SCIENCES, INC.
By: /s/ XXXXXXX X. XXXX By: /s/ X.X. XXXXXXXXXXX
-------------------------- -------------------------
Xxxxxxx X. Xxxx X.X. Xxxxxxxxxxx
Its President Its President and CEO
ATTEST: ATTEST:
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXXXXX X. XXXXXXXXXX
-------------------------- ----------------------------
Xxxxxx X. Xxxxxxx ______________, Its Secretary
[Corporate Seal] [Corporate Seal]
17
18
[FIGURE 1]
XXXX XXXXXXXX
XXXXX XXXXX
00
[FIGURE 2]
XXXX BUILDING
FIRST FLOOR
20
EXHIBIT C
RULES AND REGULATIONS
Reference is made to a certain Lease dated May 1, 1994 to which these
Rules and Regulations are attached. Definition of terms is set forth in the
Lease.
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, halls or other parts of the Building not occupied by any
tenant shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the Premises. Landlord shall
have the right to control and operate the public portions of the Building, and
the facilities furnished for the common use of the tenants, in such manner as
Landlord deems best for the benefit of the tenants generally. No tenant shall
permit the visit to the Premises of persons in such numbers or under such
conditions as to interfere with the use and enjoyment by other tenants of the
entrances, passages, courts, elevators, vestibules, stairways, corridors, halls
and other public portions or facilities of the Building.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of the Landlord. No
drapes, blinds, shades or screens shall be attached to, hung in, or used in
connection with any window or door of the Premises, without the prior written
consent of the Landlord. Such awnings, projections, curtains, blinds, shades,
screens or other fixtures must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside or
inside of the Premises or the Building without the prior written consent of the
Landlord. In the event of the violation of the foregoing by any tenant,
Landlord may remove same without incurring any liability, and may charge the
expense incurred by such removal to the tenant or tenants violating this rule.
Interior signs on doors and directory tablets shall be inscribed, painted or
affixed for each tenant by the Landlord at the expense of such tenant, and
shall be of a size, color and style acceptable to the Landlord.
4. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, not placed in the halls, corridors or
vestibules without the prior written consent of the Landlord.
5. The water, wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors or licensees, shall have
caused the same.
6. There shall be no marking, painting, drilling into or in any way
defacing any part of the Premises or the Building. No boring, cutting or
stringing of wires shall be permitted. Tenant shall not construct, maintain,
use or operate within the Premises or elsewhere within or on the outside of the
Building, any electric device, wiring or apparatus in connection with a loud
speaker system or other sound system.
1
21
7. No bicycles, vehicles or animals, except those small animals which
may be used for experimental purposes, birds or pets of any kind shall be
brought into or kept in or about the Premises, and no cooking shall be done or
permitted by any tenant on said Premises. No tenant shall cause or permit any
unusual or objectionable odors to be produced upon or permeate from the
Premises.
9. No tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises of those having business with them, whether by the use
of any musical instrument, radio, talking machine, unmusical noise, whistling,
singing, or in any other way. No tenant shall throw anything out of the doors
or windows or down the corridors or stairs.
10. No inflammable, combustible or explosive fluid, chemical or substance
shall be brought or kept upon the Premises, unless approved within the
building's I-3 zoning.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors, or windows by any tenant, nor shall any changes be made in existing
locks or the mechanisms thereof. The doors leading to the corridors or main
halls shall be kept closed except as they may be used for ingress or egress.
Each tenant shall, upon the termination of his tenancy, restore to Landlord all
keys of stores, offices, storage and toilet rooms either furnished to, or
otherwise procured by such tenant, and in the event of the loss of any key, so
furnished, such tenant shall pay to the Landlord the cost thereof.
12. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter or any description must take place only at the
loading dock during the hours which the Landlord or its agent may determine
from time to time. There shall be no loading or unloading at the main entrance
of the Building. The Landlord reserves the right to inspect all freight to be
brought into the Building and to exclude from the Building all freight which
violates any of these Rules and Regulations or the Lease of which these Rules
and Regulations are a part.
13. Any person employed by any tenant to do janitor work within the
Premises must obtain Landlord's consent and such person shall, while in the
Building and outside of said Premises, comply with all instructions issued by
the Landlord, its agents or employees.
14. Intentionally Deleted.
15. The Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not property identify himself to any
building management or watchman on duty. Each tenant shall be responsible for
all persons from whom he authorizes entry into or exit out of the Building, and
shall be liable to the Landlord for all acts of such persons.
16. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
17. Each tenant, before closing and leaving the Premises at any time,
shall see that all lights are turned off.
18. Canvassing, soliciting and peddling in the Building is
2
22
prohibited and each tenant shall cooperate to prevent the same.
20. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and sideguards.
21. Access plates to underfloor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around access plates.
22. Mats, trash or other objects shall not be placed in the public
corridors.
23. The tenant shall refer to the Building only by the name from time to
time designated by the Landlord, and shall use such name only for the business
address of the Premises and not for any promotional or other purposes.
24. Violation of these rules and regulations, or any amendments thereto,
shall be sufficient cause for termination of this Lease at the option of the
Landlord.
25. Landlord may, upon request by any tenant, waive the compliance by
such tenant of any of the foregoing rules and regulations, provided that (i) no
waiver shall be effective unless signed by Landlord or Landlord's authorized
agent, (ii) any such waiver shall not relieve such tenant from the obligation
to comply with such rule or regulation in the future unless expressly consented
to by Landlord, (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the foregoing rules and
regulations unless such other tenant has received a similar waiver in writing
from Landlord, and (iv) any such waiver by Landlord shall not relieve tenant
from any obligation or liability of tenant to Landlord pursuant to the Lease
for any loss or damage occasioned as a result of tenant's failure to comply
with any such rule or regulation.
3
23
ADDENDUM
THIS ADDENDUM dated June 21, 1995 is incorporated in and made a part of
the Lease dated May 1, 1995 (the "Lease") between Xxxx Corporation (the
"Landlord") and Cryomedical Sciences, Inc. (the "Tenant") covering
approximately Five Thousand Four Hundred Ninety-Six (5,496) square feet of
rentable floor area on the first floor and Twenty Two Thousand One Hundred
Twenty (22,120) square feet of rentable floor area on the lower level in
Landlord's building known by the street address of 0000 Xxxxxxx Xxxxx,
Xxxxxxxxx, XX 00000, the provisions of this Addendum being as follows:
NOW THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements contained herein, the receipt, adequacy and
sufficiency of which are hereby acknowledged, the parties hereto acknowledge
that the Lease Agreement is amended as follows:
1. Section 1.9 of the Lease Agreement is hereby amended by adding the
following sentence at the end thereof:
"Effective June 15, 1995, the Premises shall contain an additional One
Thousand One Hundred Fifty-One (1,151) square feet (hereinafter the
"Additional Lease Space") of rentable floor area located on the Lower
Level which space is shown on Exhibit "A-1", thereby causing the entire
Leased Premises to contain a total of Twenty-Eight Thousand Seven Hundred
Sixty-Seven (28,767) net rentable square feet."
2. Section 2.1 of the Lease Agreement is hereby amended by adding the
following sentence at the end thereof:
"Basic Rent for the Additional Lease Space (as defined in this Addendum)
shall be Eight and 50/100 Dollars ($8.50). Such Additional Lease Space
shall be subject to the same terms and conditions as outlined in the
Lease.
3. Section 3.1(a) of the Lease Agreement is hereby amended by deleting the
words "27,616 divided by 90,246 square feet or 31%" and substituting the
following therefor:
"28,767 divided by 90,246 square feet or 32%"
4. Except as expressly modified hereby, the terms and conditions of the Lease
Agreement shall remain in full force and effect; provided however, that if
any term or condition of the Lease Agreement conflicts with or is
inconsistent with any term or condition of this Addendum, the terms and
conditions of this Addendum shall prevail.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Addendum as of
the __ day of __________, 1995.
LANDLORD: TENANT:
Xxxx Corporation Cryomedical Sciences, Inc.
By: /s/ XXXXXXX X. XXXX By: /s/ X.X. XXXXXXXXXXX
------------------------- -----------------------
Xxxxxxx X. Xxxx X.X. Xxxxxxxxxxx,
Its President Its President and CEO
ATTEST: ATTEST:
By: /s/ XXXXXX X. XXXXXXX By: /s/ X.X. XXXXXXXXXX
------------------------- -----------------------
Xxxxxx X. Xxxxxxx X.X. Xxxxxxxxxx,
Its Assistant Secretary
[Corporate Seal] [Corporate Seal]
