SECURED NOTE
EXHIBIT
10.103
EXECUTION
COPY
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$3,000,000
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December
14, 2007
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FOR VALUE RECEIVED, Ocimim Biosolutions, Inc., a Delaware corporation, (the “Purchaser”) and Ocimum Biosolutions (India) Limited, a company incorporated under the Company Act, 1956, in the Republic of India (“Ocimum India”, and collectively with Purchaser, “Maker”), jointly and severally, promise to pay to Gene Logic Inc., a Delaware corporation (“Seller”), the principal sum of THREE MILLION Dollars ($3,000,000), as such amount may be adjusted in accordance with terms herein, (the “Principal Amount”) pursuant to the terms and conditions of that certain Security Agreement of even date herewith between Seller and Purchaser (the “Security Agreement”), together with interest thereon, if any, computed hereunder and any and all other sums which may be due and owing to the Seller in accordance with the terms contained herein and in the Security Agreement.
1. Incorporation
of Security and Security Agreement. This Secured Note
(the “Note”) is the “Note” referred to in the Security
Agreement. This Note is secured by the Collateral (as defined in the
Security Agreement), which Collateral generally includes all accounts,
equipment, inventory, documents, instruments, securities, deposit accounts
and
other assets of Purchaser, that relate solely to the
Acquired Assets, now existing or hereafter acquired, and all proceeds of any
of
the foregoing. Reference is made to the Security Agreement, which is
incorporated by reference in its entirety into this Note, for terms and
conditions applicable to this Note, including, without limitation, rights and
obligations of payment and repayment hereof, events of default, and Seller’s
rights and remedies upon the occurrence of any such events of
default.
2. Maturity. The
Principal Amount (subject to any adjustment provided for in Section 8) shall
be
due and payable on the eighteen (18) month anniversary date of this Note. If
not
paid when due, interest shall accrue on the unpaid Principal Amount at a default
rate of fifteen percent (15%) per annum, compounded
monthly.
3. Interest. No
interest shall accrue hereunder, except as provided in paragraph 2
above.
4 Waiver
of Presentment, Etc. Maker, for itself and its
successors and assigns, hereby waives presentment and demand for payment, notice
of intent to accelerate maturity, notice of acceleration of maturity, protest
or
notice of protest and nonpayment of this Note. From time to time,
without affecting the obligation of Maker to pay the then-outstanding Principal
Amount of this Note, Seller may, at the option of Seller, extend the time for
payment of principal hereof, reduce the payments hereunder, release anyone
liable on this Note, accept a renewal of this Note, join in any extension or
subordination, or exercise any option or election hereunder. No one
or more of such actions shall constitute a novation.
5.
Costs of Collection. Maker hereby agrees to pay all costs and
expenses (including court costs and reasonable attorneys’ fees, whether or not
litigation is commenced) incurred by Seller in collecting or attempting to
collect or enforce its rights under this Note.
6. Rights
and Remedies Cumulative. Each right, power and remedy of
Seller specified herein or available at law or in equity or by statute shall
be
cumulative and concurrent and shall be in addition to every other right, power
or remedy provided for in this Note or available at law or in equity and the
exercise or beginning of the exercise by Seller of any one or more of such
rights, powers or remedies shall not preclude the simultaneous or later exercise
by Seller of any or all other rights, powers or remedies.
7. Confession
of Judgment. Upon any default hereunder and to the
extent permitted by law, Maker, for itself and its successors and assigns,
authorizes any attorney admitted to practice before any court of record in
the
United States on behalf of Maker to confess judgment against Maker in the full
amount due under this Note, including then-outstanding principal, accrued and
unpaid interest and all other sums due hereunder. Maker waives the
benefit of any and every statute, ordinance or rule of court which may be
lawfully waived conferring upon Maker any right or privilege, stay of execution,
or supplementary proceeding or other relief from the immediate enforcement
of a
judgment or related proceedings on a judgment. The authority granted
herein shall not be exhausted by any one or more exercises or be extinguished
by
any judgment entered and may be exercised on one or more occasions and in one
or
more jurisdictions.
8. Governing
Law; Dispute Resolution; Notices; Jury Trial
Waiver. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Maryland
and
the federal laws of the United States of America, without regard to principles
of conflicts of laws. The state or federal courts located within the
State of Maryland shall have jurisdiction over any and all disputes arising
from
or related to this Agreement or the transactions contemplated
hereby. All proceedings between the Parties under or relating to this
Agreement or any breach hereof shall be conducted solely in the English
language. The Parties also consent to the service of process in connection
with
any dispute or claim arising hereunder by personal delivery, mailing such notice
to the other party by registered or certified mail, postage prepaid at the
addresses provided in the preamble of this Agreement or such other address
as a
Party may from time to time give notice of to the other Parties, or any other
manner permitted by law. EACH OF THE PARTIES HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT
OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
9. Indemnity
Offset. Pursuant to Section 7.10 of that certain
Purchase Agreement, the Company may elect to satisfy any payment with respect
to
its indemnification obligations by reducing the payment of obligations
hereunder. If Company so elects, the Principal Amount shall be
adjusted to reflect such reduction.
10. No
Assignment. Purchaser may not assign this Note, or
its rights hereunder except in the case of a sale of substantially all of the
assets of the Company.
*
* *
The
remainder of this page is left blank intentionally. Signatures follow
on the next page.
IN
WITNESS
WHEREOF, Xxxxxxxxx has caused this Note to be executed as an instrument
under seal on its behalf by its duly authorized officer as of the day and year
first above written.
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ATTEST:
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OCIMUM
BIOSOLUTIONS, INC.:
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(SEAL)
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By:
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/s/
X.X. Xxxxxx
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(SEAL)
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Name:
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Xxxxxx
Xxxxxxxxxx
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Title:
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President
and Chief Financial Officer
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| State of Maryland | ) | |||||
| ) ss | ||||||
| County of Xxxxxxxxxx | ) | |||||
I
HEREBY
CERTIFY, that on this 14th day of
December,
2007, before me, the undersigned Notary Public of said State, personally
appeared Xxxxxx Xxxxxxxxxx, who acknowledged him/herself to be the CFO &
President of Ocimum Biosolutions Limited, a company incorporated under the
Company Act, 1956, in the Republic of India, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument,
and
acknowledged that he/she executed the same for the purposes therein contained
as
the duly authorized CFO & President of said corporation, by signing the name
of the corporation by him/herself as CFO & President.
WITNESS
my
hand and Notarial Seal.
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/s/
Xxxxxxx Xxxxxxx
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Notary
Public
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ATTEST:
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OCIMUM
BIOSOLUTIONS (INDIA)
LIMITED
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|||||
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(SEAL)
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By:
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/s/
X.X. Xxxxxx
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(SEAL)
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Name:
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Xxxxxx
Xxxxxxxxxx
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|||||
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Title:
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President
and Chief Financial Officer
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|||||
| State of Maryland | ) | |||||
| ) ss | ||||||
| County of Xxxxxxxxxx | ) | |||||
I
HEREBY
CERTIFY, that on this 14th day of
December,
2007, before me, the undersigned Notary Public of said State, personally
appeared Xxxxxx Xxxxxxxxxx, who acknowledged him/herself to be the CFO &
President of Ocimum Biosolutions Limited, a company incorporated under the
Company Act, 1956, in the Republic of India, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument,
and
acknowledged that he/she executed the same for the purposes therein contained
as
the duly authorized CFO & President of said corporation, by signing the name
of the corporation by him/herself as CFO & President.
WITNESS
my
hand and Notarial Seal.
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/s/
Xxxxxxx Xxxxxxx
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Notary
Public
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SUBLEASE
THIS
SUBLEASE is made and entered into this 14th day of December
2007 (the "Effective Date"), by and between OCIMUM BIOSOLUTIONS, INC., a
Delaware corporation (“Landlord”) and Gene Logic Inc., a Delaware corporation,
being renamed Ore Pharmaceuticals Inc. (“Tenant”).
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1.
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BASIC
LEASE PROVISIONS.
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A. Building: 00
Xxxx Xxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx,Xxxxxxxx 00000.
X. Xxxxxx’s
Address: 00 Xxxx Xxxxxxx Xxxx Xxxx,Xxxxxxxxxxxx, Xxxxxxxx 00000,
Attention: Chief FinancialOfficer, with a copy of any notice of
default to Xxxxx Xxxxxxx,Esq., Xxxxxxx LLP, 000 0xx Xxxxxx,
X.X.,
Xxxxxxxxxx, XX 00000-0000
X. Xxxxxxxx’s
Address (for notices): 00 Xxxx Xxxxxxx XxxxXxxx, Xxxxxxxxxxxx,
Xxxxxxxx 00000, Attention: Office Manager
D. Prime
Landlord: 00 Xxxx Xxxxxxx Xxxx Xxxx, LLC(formerly named ARE-00 Xxxx Xxxxxxx
Xxxx
Xxxx, LLC)
E. Prime
Landlord’s Address (for notices): 00 Xxxx XxxxxxxXxxx Xxxx, LLC, c/x Xxxxx &
Associates, 0000 Xxxx XxxxXxxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 Attention:
PropertyManager
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F.
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Identification
of Prime Lease and all amendments
thereto:
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Lease
Agreement dated July 21, 2000
G. Sublease
Term: From the Commencement Date until December 31, 2008, or such earlier date
as provided for in this Sublease.
H. Commencement
Date: December 14, 2007,which shall be the closing date of the sale
of Genomics assets pursuant to that certain Asset Purchase Agreement (the
“Purchase Agreement”), dated October 14, 2007, by and among Landlord, Tenant and
Ocimum Biosolitions (India) Limited, a company incorporated under the Company
Act, 1956, of the Republic of India (“Ocimum India”), as amended by that certain
letter agreement made by and among Landlord, Tenant and Ocimum India dated
December 12, 2007.
I. Expiration
Date: December 31, 2008 or such earlier date as provided for in this
Sublease.
J. Base
Rent: From the Commencement Date until December 31, 2008,
and notwithstanding the portion of the Building, if any, actually occupied
from
time to time by Tenant during the Sublease Term, Base Rent hereunder shall
be
equal to 50% of the Basic Annual Rent payable by Landlord to the Prime Landlord
under the Prime Lease. Notwithstanding the foregoing, if Landlord subleases
any
part of the Building to anyone other than Tenant or an Affiliate of Landlord
for
a period of time that commences prior to December 31, 2008, Tenant shall be
relieved of its obligation to pay a portion of Base Rent under this Sublease
for
that period of time from the commencement date of such sublease until December
31, 2008, equal to the rentable square footage of space subleased under such
sublease divided by one-half of the rentable square footage in the Prime Lease
Premises.
X. Xxxxx
and Address for Payment of Rent: 00 Xxxx Xxxxxxx Xxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention: Office Manager.
L. Sublease
Share: The percentage of rentable square feet of the Building that is
occupied by Tenant from time to time during the Term, which shall be calculated
by dividing the sum of the rentable area of the Premises plus the Common Area
Share by the rentable area of the Prime Lease Premises, which percentage may
be
adjusted from time to time based on Tenant’s occupancy of the Building. As of
the Effective Date, the Sublease Share shall be 22.0%. In the event that Tenant
elects to reduce the size of the Premises during the Term, the Sublease Share
shall be reduced proportionately to reflect the actual amount of rentable square
feet in the Building occupied by Tenant.
M. Premises:
That portion of the Prime Lease Premises occupied by Tenant, consisting
initially of approximately 11,000 rentable square feet plus (for the purposes
of
Sublease Share calculations only) the Common Area Share of 1,653 rentable square
feet for a total of 12,653 square feet, as outlined on Exhibit A attached
hereto and incorporated herein. Tenant shall be permitted to reduce the size
of
the Premises during the Term upon five (5) days prior written notice to
Landlord.
N. Prime
Lease Premises: The entire Building leased to Landlord under the Prime Lease,
consisting of Fifty-Seven Thousand Four Hundred Ten (57,410) rentable square
feet
X. Xxxxxxxx’s
Premises: Prime Lease Premises less the Premises
P. Security
Deposit: None
Q. Permitted
Use: General office and all other uses permitted legally and under
the terms of the Prime Lease or consented to by Prime Landlord
R. Common
Area: The total rentable square feet of Common Area accessible by
Tenant within the Prime Lease Premises, consisting of approximately 7,500
rentable square feet, including hallways, entryways, bathrooms, mechanical
rooms, lobbies and shipping and receiving areas in the areas shown on Exhibit
A (if any)).
S. Common
Area Share: The Common Area multiplied by the Sublease Share.
2. PRIME
LEASE. Landlord is the tenant under a Prime Lease (the “Prime Lease”)
with the Prime Landlord identified in Section 1(D), bearing the date
specified in Section 1(F). Unless otherwise defined in this
Sublease, all defined terms used herein shall have the meanings set forth in
the
Prime Lease.
3. SUBLEASE. Landlord,
for and in consideration of the rents herein reserved and of the covenants
and
agreements herein contained on the part of the Tenant to be performed, hereby
subleases to the Tenant, and the Tenant accepts from the Landlord, certain
space
described in Section l(M) (the “Premises”), and located in the building
located at 00 Xxxx Xxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 (the
“Building”), along with a non-exclusive right to use the parking spaces
attributable to the Prime Lease Premises under the Prime Lease, not to exceed
Xxxxxx’s Sublease Share of spaces. Within thirty (30) days after the
Commencement Date, Landlord or Tenant, at its sole cost and expense, may have
the rentable square feet in the Premises and Common Area measured and
re-determined by a licensed architect using the Building Owners and Managers
Association International Standard Method for Measuring Floor Space in Office
Buildings (1996), and the Landlord Additional Rent (as defined below) and
Sublease Share shall be adjusted to reflect the correct rentable square footage
of the Premises.
4. TERM. The
term of this Lease (hereinafter “Term”) shall commence on the date specified in
Section l(H) (hereinafter “Commencement Date”). The Term shall expire on
the date (“Expiration Date”) specified in Section l(I), unless sooner
terminated as otherwise provided elsewhere in this Sublease.
5. UNDEMISED
PREMISES. Landlord and Tenant agree and acknowledge that the Premises
are not separately demised from the remainder of the Prime Lease Premises.
Landlord and Tenant have agreed that it is not necessary to separately demise
the Building but that each shall use its best efforts to prevent its employees,
contractors, agents, guests and invitees (collectively, the “Agents”) from
accessing the other party’s premises in the Building and causing damage, death,
injury or destruction to the other party’s premises, property, or
Agents or from improperly obtaining, using or disclosing the other party's
trade
secrets that may be observed or learned during the Term as a result of the
Building not being demised. Each party agrees to indemnify the other and hold
the other harmless from all losses, damages, liabilities and expenses which
a
party may incur as a result of the such party’s Agents entering into the other
party’s premises in the Building, or improperly obtaining, using or disclosing
the other party's trade secrets in violation hereof.
6. PERMITTED
USE. The Premises shall be used and occupied only for the Permitted
Use set forth in Section 1(Q).
7. BASE
RENT. Beginning on the Commencement Date, Xxxxxx agrees to pay the
Base Rent specified in Section 1(J) to the Landlord at the address
specified in Section 1(K), or to such other payee or at such other
address as may be designated by notice in writing from Landlord to Tenant,
without prior demand therefor and without any deduction
whatsoever. Base Rent shall be paid in equal monthly installments in
advance on the first day of each month of the Term. In the event that
Base Rent payable under the Prime Lease increases at any time prior to December
31, 2008, Landlord shall provide Tenant with written notice of such increased
Base Rent and Tenant shall not be in default hereunder as a result of not paying
the increased Base Rent until thirty (30) days after receiving such notice
from
Landlord. Base Rent shall be pro-rated for partial months at the beginning
and
end of the Term, if applicable. All charges, costs and sums required
to be paid by Tenant to Landlord under this Sublease in addition to Base Rent
shall be deemed “Additional Rent,” and Base Rent and Additional Rent shall
hereinafter collectively be referred to as “Rent.” Tenant’s covenant
to pay Rent shall be independent of every other covenant in this
Lease. If Rent is not paid when due, Tenant shall pay, relative to
the delinquent payment, an amount equal to the sum which would be payable by
Landlord to Prime Landlord for an equivalent default under the Prime Lease
(subject to the same notice and cure periods provided Landlord under the Prime
Lease).
8. ADDITIONAL
RENT.
(a)
To the
extent that Landlord is obligated to pay additional rent under the Prime Lease,
whether such additional rent is to reimburse Prime Landlord for taxes, operating
expenses, common area maintenance charges or other expenses incurred by the
Prime Landlord in connection with the Building (collectively, the Prime Landlord
Additional Rent"), Tenant shall pay to Landlord, fifty percent (50%) of such
Prime Landlord Additional Rent (to the extent such additional rent is
attributable to events occurring during the term of this
Sublease). Tenant shall also be responsible for any additional rent
Landlord is required to pay to Prime Landlord solely as a result of the acts,
omissions or negligence of Tenant or its agents, employees, representatives,
contractors or invitees (including, without limitation, any sub-sublessees).
If
Landlord makes estimated payments of Prime Landlord Additional Rent under the
Prime Lease and provides Tenant with notice of such amounts payable to the
Prime
Landlord, Tenant shall pay fifty percent (50%) of such estimated Prime Landlord
Additional Rent in accordance with this Section. In the event that
Landlord receives a refund or is required to pay a shortfall based on the
difference between Prime Landlord’s estimate and the actual Prime Landlord
Additional Rent payable for any year, Tenant will be entitled to receive fifty
percent (50%) of any such refund, and will be obligated to pay fifty percent
(50%) of any such shortfall. Such payment shall be due from Tenant to
Landlord prior to the date upon which Xxxxxxxx’s payment of such Prime Landlord
Additional Rent is due to the Prime Landlord, provided that Tenant shall have
been billed therefor at least ten (10) days prior to such due date (which bill
shall be accompanied by a copy of Prime Landlord’s bill and other material
furnished to Landlord in connection therewith).
(b)
In
addition to the Prime Landlord Additional Rent described above, Landlord may
incur other operating and maintenance expenses for the Building that it is
required to pay to parties other than the Prime Landlord, including but not
limited to expenses for building maintenance, repairs to equipment and fixtures
necessary for the operation, use and occupancy of the Building, utilities
servicing the Building, and snow and ice removal ("Landlord Additional
Rent")(Prime Landlord Additional Rent and Landlord Additional Rent shall
hereinafter collectively be referred to as "Additional Rent"). To the extent
that Landlord incurs such costs due to the negligent or wrongful acts of Tenant,
then Tenant shall reimburse Landlord upon demand for all such costs incurred
by
Landlord. To the extent that such costs are normal and routine operating costs
that are incurred by Landlord as a result of Landlord’s operation, use and
occupancy of the Building and to the extent such other expenses are reasonably
attributable in whole or in part to the Premises and are incurred for
the benefit of both Landlord and Tenant, Tenant shall pay Landlord the Sublease
Share of Landlord Additional Rent within thirty (30) days after receipt of
an
invoice for the same, including backup documentation and itemization of all
expenses incurred for such period of time and the calculation of the Sublease
Share
9. LANDLORD’S
OBLIGATIONS. Landlord shall be responsible for and shall pay for (to
the extent Landlord is obligated to pay the same under the terms of the Prime
Lease) all reasonable and necessary utilities, services, maintenance, repairs
and replacements as to the Building and its equipment, to the extent Landlord
is
obligated to perform the same under the Prime Lease. Landlord shall use
commercially reasonably efforts to procure any such services or products at
costs that are considered reasonable and competitive in the applicable industry,
in reasonable timeframes.
10. QUIET
ENJOYMENT. Subject to Section 25 of the Prime Lease, Landlord
represents that it has full power and authority to enter into this Sublease.
So
long as Landlord has obtained Prime Landlord’s consent to this Sublease,
Landlord has the right of occupancy under the Prime Lease, and Tenant is not
in
default in the performance of its covenants and agreements in this Sublease
(beyond applicable cure periods), Tenant’s quiet and peaceable enjoyment of the
Premises shall not be disturbed or interfered with by Landlord, or by any person
claiming by, through, or under Landlord.
11. TENANT’S
INSURANCE. Tenant shall procure and maintain, at its own cost and
expense, such liability insurance as is required to be carried by Landlord
under
the Prime Lease, naming Landlord, as well as Prime Landlord, in the manner
required therein and such property insurance as is required to be carried by
Landlord under the Prime Lease to the extent such property insurance pertains
to
the Premises. Tenant shall, upon the request of Landlord, furnish to
Landlord a certificate of Xxxxxx’s insurance required hereunder.
12. RELEASE
AND WAIVER OF SUBROGATION. Each party hereby waives claims against
the other for property damage. Landlord shall have no liability to Tenant with
respect to (a) representations and warranties made by Prime Landlord under
the
Prime Lease, and (b) any indemnification obligations of Prime Landlord under
the
Prime Lease or other obligations or liabilities of Prime Landlord with respect
to compliance with laws, condition of the Premises or Hazardous Materials,
except as caused by the negligence or willful misconduct of Landlord or
Landlord's employees, agents, contractors, licensees, invitees, successors
and
assigns. The obligations of Landlord and Tenant shall not constitute the
personal obligations of the officers, directors, trustees, partners, joint
venturers, members, owners, stockholders or other principals or representatives
of each business entity.
Each
party
shall attempt to obtain from its insurance carrier a waiver of its right of
subrogation. Tenant hereby waives claims against Prime Landlord for
property damage to the Premises or its contents or the
Building. Xxxxxx also agrees to use reasonable efforts to obtain, for
the benefit of Prime Landlord, such waivers of subrogation rights from its
insurer as are required of Landlord under the Prime Lease. Xxxxxxxx
agrees to use reasonable efforts in good faith to obtain for Tenant from Prime
Landlord a waiver of claims for insurable property damage losses and an
agreement from Prime Landlord to obtain a waiver of subrogation rights in Prime
Landlord’s property insurance, if and to the extent that Prime Landlord waives
such claims against Landlord under the Prime Lease or is required under the
Prime Lease to obtain such waiver of subrogation rights.
13. ASSIGNMENT
OR SUBLETTING.
A. Tenant
may only assign this Sublease and the Premises, or sublet all or any part
thereof, to any assignee or transferee acquiring Tenant’s Diagnostic Development
Business or to an acquirer of all of substantially all of Tenant's business,
whether by merger, sale of stock, sale of assets or any similar transaction.
Notwithstanding the foregoing, if such assignee or transferee is a direct
competitor of Landlord, Tenant shall request Landlord's prior consent to such
assignment or sublease, which consent may be withheld by Landlord in its sole
and absolute discretion.
B. No
assignment shall be effective and no sublease shall commence unless and until
any default by Tenant hereunder shall have been cured. Tenant shall
not be released from liability under this Sublease in the event of any sublease
of the Premises or assignment by Xxxxxx.
C. In
the event of any assignment or subletting of this Premises by Tenant, Tenant
shall pay to Landlord (i) in the case of a sub-sublease, after deducting
reasonable out-of-pocket expenses incurred by Tenant in subleasing the space
fifty percent (50%) of the balance of any base rent (or amounts paid in lieu
of
base rent) actually paid on a monthly basis by such sub-subtenant to Tenant
in
excess of Base Rent, and (ii) in the case of an assignment of this Sublease,
after deducting reasonable out-of-pocket expenses incurred by Tenant in
assigning this sublease, fifty percent (50%) of the balance of any fees or
payments made by the assignee in consideration of such assignment, such amounts
to be paid to Landlord within ten (10) business days following receipt thereof
by Tenant, unless the Prime Lease requires Landlord to pay Prime Landlord a
higher percentage of base rent from Tenant's sublease of the Premises to a
sub-tenant in which case Tenant shall pay to Landlord such higher
percentage.
14. RULES. Xxxxxx
agrees to comply with all rules and regulations that Prime Landlord has made
or
may hereafter from time to time make for the Building. Landlord shall
not be liable in any way for damage caused by the non-observance by any of
the
other tenants of the Building of such similar covenants in their leases or
of
such rules and regulations, but will upon Xxxxxx’s request cooperate
in asking the Prime Landlord to enforce such rules and regulations against
other
tenants.
15. REPAIRS
AND COMPLIANCE. Tenant shall, at Tenant’s own expense, comply with:
(i) all laws and ordinances and (ii) all orders, rules and regulations of all
governmental authorities and of all insurance bodies and their fire prevention
engineers at any time in force, applicable to Tenant’s particular use or manner
of use thereof, except that Tenant shall not hereby be under any obligation
to
comply with any law, ordinance, rule or regulation requiring any alteration
of
or in connection with the Building or the Premises or if the same relates to
other premises in the Building, unless such alteration is required by reason
of
Tenant’s particular use or manner of use of the Premises or to the extent such
obligation would be Landlord’s under the Prime Lease.
16. FIRE
OR CASUALTY OR EMINENT DOMAIN. In the event of a fire or other
casualty affecting the Building or the Premises which gives rise to a right
of
Landlord to terminate the Prime Lease, or of a taking of all or a part of the
Building or Premises under the power of eminent domain, Landlord or Tenant
may
terminate this Sublease by written notice to the other. In the event that
neither party terminates this Sublease, the parties shall equitably adjust
the
abatement provided under the Prime Lease as between themselves, based on the
relative impact of the fire or other casualty, or the taking, as the case may
be, but only to the extent such casualty or taking affects the Premises, the
Common Areas, the Building, or Tenant's use or occupancy of the Premises, the
Common Areas and/or the Building.
17. ALTERATIONS. Tenant
may make such alterations in or additions to the Premises (“Alterations”) as it
deems necessary for the operation of its intended use of the Premises without
the consent of Landlord; provided, however, that Tenant shall provide Landlord
at least fifteen (15) days notice before commencing any
Alterations. If Prime Landlord’s consent under the Prime Lease is
necessary for any such alterations, Landlord shall use reasonable efforts to
obtain the consent of Prime Landlord. If Alterations by Tenant are
consented to by the Prime Landlord (if necessary) as aforesaid, Tenant shall
comply with all of the covenants of Landlord contained in the Prime Lease and
in
the Prime Landlord’s consent notice pertaining to the performance of such
Alterations.
18. SURRENDER. Upon
the expiration of this Sublease, or upon the termination of the Sublease or
of
the Tenant’s right to possession of the Premises or as Tenant reduces the size
of the Premises, Tenant will at once surrender and deliver up the all or, as
applicable, the appropriate part of the Premises, together with all improvements
thereon, to Landlord in good condition and repair, free of Hazardous Materials
(other than routine office cleaning supplies) except as caused by Landlord
or
Landlord's employees, agents, contractors, invitees and/or licensees, reasonable
wear and tear (and damage by Landlord or Prime Landlord), casualty or
condemnation excepted. Said improvements shall include all plumbing,
lighting, electrical, heating, cooling and ventilating fixtures and equipment
used in the operation of the Premises (as distinguished from operations incident
to the business of Tenant). Tenant shall surrender to Landlord all
keys to the Premises and make known to Landlord the explanation of all
combination locks which Tenant is permitted to leave on the
Premises.
All
Alterations in or upon the Premises made by Tenant shall become a part of and
shall remain upon the Premises upon such termination without compensation,
allowance or credit to Tenant. Tenant shall remove any Alterations
made by Tenant, or portion thereof, which Prime Landlord requires Landlord
(or
Tenant if there is a direct obligation of Tenant to Prime Landlord) to remove,
pursuant to the terms of the Prime Lease. In any such event, Tenant
shall restore the Premises to their condition prior to the making of such
Alteration, repairing any damage occasioned by such removal or
restoration. If Prime Landlord requires removal of any Alteration
made by Tenant, or a portion thereof as set forth above, and Tenant does not
make such removal in accordance with this Section, Landlord may remove the
same
(and repair any damage occasioned thereby), and dispose thereof, or at its
election, deliver the same to any other place of business of Tenant, or
warehouse the same. Tenant shall pay the costs of such removal,
repair, delivery and warehousing on demand. Tenant shall not be
required to remove any Alterations performed by Landlord or to restore the
Premises to their condition prior to the making of such
Alterations.
19. REMOVAL
OF TENANT’S PROPERTY. Upon the expiration of this Sublease or as
Tenant reduces the size of the Premises, Tenant shall remove Tenant’s furniture,
equipment and other articles of personal property incident to Tenant’s business
including all Retained Assets as defined in the Purchase Agreement (collectively
“Trade Fixtures”); provided, however, that Tenant shall repair any injury or
damage to the Premises which may result from such removal, and shall restore
the
Premises to the same condition as prior to the later of the Commencement Date
or
the installation thereof.. In removing such Trade Fixtures, Tenant may, as
needed, access and use the shipping and receiving dock at the back of the
Building. If Tenant does not remove Tenant’s Trade Fixtures from the Premises
prior to the expiration or earlier termination of the Term or as Tenant reduces
the size of the Premises, Landlord may, at its option, remove the same from
any
part of the Premises surrendered (and repair any damage occasioned thereby
and
restore the Premises as aforesaid) and dispose thereof or deliver the same
to
any other place of business of Tenant, or warehouse the same, and Tenant shall
pay the cost of such removal, repair, restoration, delivery or warehousing
to
Landlord on demand, or Landlord may treat said Trade Fixtures as having been
conveyed to Landlord with this Lease as a Bill of Sale, without further payment
or credit by Landlord to Tenant.
20. HOLDING
OVER. Tenant shall have no right to occupy the Premises or any
portion thereof after the expiration of this Sublease or after termination
of
this Sublease or of Tenant’s right to possession as a result of an Event of
Default hereunder beyond any applicable grace and cure periods. In
the event Tenant or any party claiming by, through or under Xxxxxx holds over,
Landlord may exercise any and all remedies available to it at law or in equity
to recover possession of the Premises, and to recover damages including, without
limitation, damages payable by Landlord to Prime Landlord by reason of such
holdover. For each and every month or partial month that Tenant or
any party claiming by, through or under Tenant remains in occupancy of all
or
any portion of the Premises after the expiration of this Sublease or after
termination of this Sublease or Tenant’s right to possession, Tenant shall pay,
as liquidated damages and not as a penalty, monthly rental at a rate equal
to
150% of the rate of Base Rent payable by Landlord for the entirety of the Prime
Lease Premises immediately prior to the expiration or other termination of
this
Sublease or of Tenant’s right to possession, but only to the extent that Prime
Landlord requires Landlord to pay such holdover rent under the terms of the
Prime Lease. The acceptance by Landlord of any lesser sum shall be
construed as payment on account and not in satisfaction of damages for such
holding over.
21. ENCUMBERING
TITLE. Tenant shall not do any act which shall in any way encumber
the title of Prime Landlord in and to the Building, nor shall the interest
or
estate of Prime Landlord or Landlord be in any way subject to any claim by
way
of lien or encumbrance, whether by operation of law by virtue of any express
or
implied contract by Xxxxxx, or by reason of any other act or omission of Tenant
except as to this Sublease. Except as to this Sublease, any claim to,
or lien upon, the Premises or the Building arising from any act or omission
of
Tenant shall be subject and subordinate to the paramount title and rights of
Prime Landlord in and to the Building and the interest of Landlord in the Prime
Lease Premises. Without limiting the generality of the foregoing, Tenant shall
not permit the Premises or the Building to become subject to any mechanics’,
laborers’ or materialmen’s lien on account of labor or material furnished to
Tenant or claimed to have been furnished to Tenant in connection with work
of
any character performed or claimed to have been performed on the Premises by,
or
at the direction or sufferance of, Tenant; provided, however, that if so
permitted under the Prime Lease, Tenant shall have the right to contest in
good
faith and with reasonable diligence, the validity of any such lien or claimed
lien if Tenant shall give to Prime Landlord and Landlord such security as may
be
deemed satisfactory to them to assure payment thereof and to prevent any sale,
foreclosure, or forfeiture of the Premises or the Building by reason of
non-payment thereof, provided further, however, that on final determination
of
the lien or claim of lien, Tenant shall immediately pay any judgment rendered,
with all proper costs and charges, and shall have the lien released and any
judgment satisfied.
22. INDEMNITY. Tenant
and Landlord agree to indemnify the other and hold the other harmless from
all
losses, damages, liabilities and expenses which a party may incur, or for which
a party may be liable to Prime Landlord, arising from the wrongful acts or
omissions of the other party.
23. LANDLORD’S
RESERVED RIGHTS. Landlord reserves the right, on reasonable prior
written notice, to inspect the Premises, or to exhibit the Premises to persons
having a legitimate interest at any time during the Term.
24. DEFAULTS. Tenant
further agrees that any one or more of the following events shall be considered
Events of Default as said term is used herein:
A. Tenant
fails to pay any rent or any other charges due and payable by Tenant under
this
Lease when due and such failure continues for more than five (5) business days
following Xxxxxx’s receipt of written notice thereof from Landlord;
X. Xxxxxx’s
estate created by this Lease is taken by execution or other legal
process;
C. Tenant
is adjudicated bankrupt or insolvent according to law; or any assignment is
made
of the property of Tenant for the benefit of creditors; or a receiver, guardian,
conservator, trustee in voluntary bankruptcy or other similar officer is
appointed to take charge of all or any substantial part of Tenant’s property by
a court of competent jurisdiction; or a petition is filed for the reorganization
of Tenant or any guarantor of Tenant’s obligations hereunder under any
provisions of the Bankruptcy Act now or hereafter enacted, and such proceeding
is not dismissed within 60 days after it is begun; or Tenant files a petition
for reorganization, or for arrangements under any provisions of the Bankruptcy
Act now or hereafter enacted and providing a plan for a debtor to settle,
satisfy or extend the time for the payment of debts; or
X. Xxxxxx
fails to perform or observe any of its other obligations under this Lease within
thirty (30) days after written notice from Landlord to Tenant specifying the
failure, provided, however, if such obligation(s) cannot reasonably be performed
or observed within said thirty (30) day period, Tenant shall not be in default
so long as Tenant has commenced curative action and is continuously and
diligently prosecuting such curative action to completion and same is capable
of
completion within sixty (60) days.
25. REMEDIES. Upon
the occurrence of any one or more Events of Default, Landlord may exercise
any
remedy against Tenant with respect to the Premises that Prime Landlord may
exercise for default by Landlord under the Prime Lease.
26. NOTICES
AND CONSENTS. All notices, demands, requests, consents or approvals
which may or are required to be given by either party to the other shall be
in
writing and shall be deemed given when received or refused if sent by United
States registered or certified mail, postage prepaid, return receipt requested
or if sent by overnight commercial courier service (a) if to Tenant, addressed
to Tenant at the address specified in Section 1(B) or at such other place
as Tenant may from time to time designate by notice in writing to Landlord;
or
(b) if for Landlord, addressed to Landlord at the address specified in
Section 1(C) or at such other place as Landlord may from time to time
designate by notice in writing to Tenant. Each party agrees promptly
to deliver a copy of each notice, demand, request, consent or approval from
such
party to Prime Landlord and promptly to deliver to the other party a copy of
any
notice, demand, request, consent or approval received from Prime
Landlord. Such copies shall be delivered by overnight commercial
courier.
27. PROVISIONS
REGARDING SUBLEASE. This Sublease and all the rights of parties
hereunder are subject and subordinate to the Prime Lease. In
furtherance of the foregoing, the parties hereby confirm, each to the other,
that it is not practical in this Sublease agreement to enumerate all of the
rights and obligations of the various parties under the Prime Lease and
specifically to allocate those rights and obligations in this Sublease
agreement. Accordingly, in order to afford to Tenant the benefits of
this Sublease and of those provisions of the Prime Lease which by their nature
are intended to benefit the party in possession of the Premises, and in order
to
protect Landlord against a default by Tenant which might cause a default or
event of default by Landlord under the Prime Lease:
A. Provided
Tenant shall timely pay all Rent when and as due under this Sublease, Landlord
shall pay, when and as due, all base rent, additional rent and other charges
payable by Landlord to Prime Landlord under the Prime Lease.
B. Landlord
shall comply with its covenants and obligations under the Prime Lease that
do
not require for their performance possession of the Premises and which are
not
otherwise to be performed hereunder by Xxxxxx on behalf of
Landlord. For example, Landlord shall at all times keep in full force
and effect all insurance required of Landlord as tenant under the Prime Lease.
Landlord shall, upon the request of Xxxxxx, furnish to Tenant a certificate
of
Landlord’s insurance required hereunder.
C. Tenant
shall perform all affirmative covenants and shall refrain from performing any
act which is prohibited by the negative covenants of the Prime Lease, where
the
obligation to perform or refrain from performing is by its nature imposed upon
the party in possession of the Premises, but only to the extent applicable
to
the Premises and are practicable for Tenant to perform as a subtenant of part
of
the Building and excluding work on Building systems or structural components
of
the Building. If practicable, Tenant shall perform affirmative
covenants which are also covenants of Landlord under the Prime Lease at least
five (5) days prior to the date when Landlord’s performance is required under
the Prime Lease. Landlord shall have the right to enter the Premises
to cure any default by Tenant under this Section after providing Tenant written
notice thereof and a reasonable opportunity to cure, not to exceed
ten (10) business days, except in the case of an emergency, in which case
Landlord shall not be required to provide Tenant with prior notice and a
reasonable opportunity to cure.
D. Landlord
shall not agree to an amendment to the Prime Lease which might have material
and
adverse effect on Tenant’s occupancy of the Premises or its use of the Premises
for their intended purpose, unless Landlord shall first obtain Tenant’s prior
written approval thereof, which approval shall not be unreasonably withheld
or
delayed.
X. Xxxxxxxx
hereby grants to Tenant the right to receive all of the services and benefits
with respect to the Premises which are to be provided by Prime Landlord under
the Prime Lease. Landlord shall have no duty to perform any
obligations of Prime Landlord which are, by their nature, the obligation of
an
owner or manager of real property. For example, Landlord shall not be
required to provide the services or repairs which the Prime Landlord is required
to provide under the Prime Lease. Landlord shall have no
responsibility for or be liable to Tenant for any default, failure or delay
on
the part of Prime Landlord in the performance or observance by Prime Landlord
of
any of its obligations under the Prime Lease, nor shall such default by Prime
Landlord affect this Sublease or waive or defer the performance of any of
Tenant’s obligations hereunder except to the extent that such default by Prime
Landlord excuses performance by Xxxxxxxx, under the Prime
Lease. Notwithstanding the foregoing, the parties contemplate that
Prime Landlord shall, in fact, perform its obligations under the Prime Lease
and
in the event of any default or failure of such performance by Prime Landlord,
Landlord agrees that it will cooperate with Xxxxxx, and upon notice from Tenant:
(i) make demand upon Prime Landlord to perform its obligations under the Prime
Lease at no costs or expense to Landlord; and (ii) permit Tenant to commence
a
lawsuit or other action in Landlord’s name (and Landlord shall join such lawsuit
if required as a necessary party) to obtain the performance required from Prime
Landlord under the Prime Lease; provided, however, that if Xxxxxx commences
a
lawsuit or other action, Tenant shall pay all costs and expenses incurred in
connection therewith, and Tenant shall indemnify Landlord against, and hold
Landlord harmless from, all reasonable costs and expenses incurred by Landlord
in connection therewith.
F. In
the event that Landlord fails to perform any of its repair, replacement or
maintenance obligations under this Sublease or the Prime Lease, Tenant shall
provide Landlord notice of such failure and Landlord shall have five (5)
business days from receipt of such notice from Tenant to cure the failure,
provided, however, if such obligation(s) cannot reasonably be performed or
observed with said five (5) business day period, Landlord shall not be in
default so long as Landlord has commenced curative action to completion and
the
same is capable of completion within ten (10) business days, except in the
case
of except an emergency, in which case Tenant shall not be required to provide
Landlord with prior notice and a reasonable opportunity to cure. In the event
that Landlord fails to cure such failure within the period referenced in the
immediately preceding sentence, Tenant shall be permitted to cure such failure
and Landlord shall be responsible for paying to Tenant, within ten (10) days
of
Landlord's receipt of an invoice from Tenant, all actual costs and expenses
incurred by Tenant in curing such failure.
28. ADDITIONAL
SERVICES. Upon Tenant’s request, Landlord shall cooperate with Tenant
to cause Prime Landlord to provide services required by Tenant in addition
to
those otherwise required to be provided by Prime Landlord under the Prime
Lease. Tenant shall pay Prime Landlord’s charge for such services
promptly after having been billed therefor by Prime Landlord or by
Landlord. If at any time a charge for such additional services is
attributable to the use of such services both by Landlord and by Tenant, the
cost thereof shall be equitably divided between Landlord and
Tenant.
29. BROKERAGE. Each
party warrants to the other that it has had no dealings with any broker or
agent
in connection with this Sublease. Each party covenants to pay, hold
harmless and indemnify the other party from and against any and all costs
(including reasonable attorneys’ fees), expense or liability for any
compensation, commissions and charges claimed by any broker or other agent
with
respect to this Sublease.
30. PRIME
LANDLORD. Landlord and Tenant hereby agree, for the benefit of Prime
Landlord, that this Sublease shall not (a) create privity of contract between
Prime Landlord and Tenant; (b) be deemed to have amended the Prime Lease in
any
regard; or (c) be construed as a waiver of Prime Landlord’s right to consent to
any assignment of the Prime Lease by Landlord or any further subletting of
premises leased pursuant to the Prime Lease, or as a waiver of Prime Landlord’s
right to consent to any assignment by Tenant of this Sublease or any sub-letting
of the Premises or any part thereof.
31. FORCE
MAJEURE. Neither Landlord nor Tenant shall be deemed in default with
respect to any of the terms, covenants and conditions of this Lease (other
than
the payment of money), if such party’s failure to timely perform is due in whole
or in part to any strike, lockout, labor trouble (whether legal or illegal),
civil disorder, failure of power, restrictive governmental laws and regulations,
riots, insurrections, war, shortages, accidents, casualties, acts of God, delays
caused directly by the other party or its agents, employees and invitees, or
any
other cause beyond the reasonable control of such party and such party provides
notice within a reasonable time to the other party of such matter and acts
in a
commercially reasonable manner to resume performance as
soon as reasonably possible.
32. SIGNAGE. Subject
to the Prime Landlord's approval rights under the Prime Lease, Tenant shall
be
permitted to install entry suite signage and an appropriate sign on the rear
entryway to the Building for itself and any subtenant without Landlord’s
consent. If required under the Prime Lease, Xxxxxxxx agrees to
cooperate with Xxxxxx and work with Prime Landlord to secure the approval of
Prime Landlord to the installation of signage at the entry of Tenant’s suite and
on or adjacent to the rear entryway door, and to request a listing or listings,
in the name and/or any subtenant, in the Building directory. Xxxxxx
agrees to pay the costs for such signage and acknowledges that all such signage
must be approved by Prime Landlord.
33. ROOFTOP
EQUIPMENT. Subject to the Prime Landlord's approval rights under the
Prime Lease, Tenant shall be permitted to install, at its sole cost and expense,
a satellite dish/antenna or other rooftop equipment, and cables necessary to
connect such equipment to the Premises, as it deems necessary for the operation
of the Premises (“Rooftop Equipment”) without Landlord’s
consent. Xxxxxxxx agrees to work with Prime Landlord to
secure the right for Tenant to the Rooftop Equipment. The Rooftop
Equipment and the installation thereof shall be subject to all federal, state
and local government regulations affecting the Building and all Building Rules
and Regulations, and may be subject to Prime Landlord’s prior written
approval. Tenant shall be responsible for any damage to the roof of
the Building caused by the installation of the Rooftop Equipment. At
the Expiration of the Term or upon the earlier removal of the Rooftop Equipment,
Tenant will restore the roof to the condition existing prior to the installation
of the Rooftop Equipment, normal wear and tear excepted.
34. ESTOPPEL
CERTIFICATES. Within ten (10) business days after receipt of written
demand by either party, the other party shall execute and deliver to the
requesting party an estoppel certificate (i) certifying that this Sublease
is
unmodified and in full force and effect or, if modified, the nature of such
modification; (ii) stating the date to which Rent and other charges are paid
in
advance; (iii) acknowledging, to the best of the responding party’s knowledge,
that there are no uncured defaults on the part of the requesting party; and
(iv)
certifying such other information as may be reasonably required by the
requesting party.
35. CHOICE
OF LAW; SEVERABILITY. This Sublease shall in all respects be governed
by and construed in accordance with the laws of the State of
Maryland. If any term of this Sublease is held to be invalid or
unenforceable by any court of competent jurisdiction, then the remainder of
this
Sublease shall remain in full force and effect to the fullest extent possible
under the law, and shall not be affected or impaired.
36. AMENDMENT. This
Sublease may not be amended except by the written agreement of all parties
hereto.
37. ATTORNEYS’
FEES. If either party brings any action or legal proceeding with
respect to this Sublease, the prevailing party shall be entitled to recover
reasonable attorneys’ fees, experts’ fees, and court costs. If either
party becomes the subject of any bankruptcy or insolvency proceeding, then
the
other party shall be entitled to recover all attorneys’ fees, experts’ fees, and
other costs incurred by that party in protecting its rights hereunder and in
obtaining any other relief as a consequence of such proceeding.
38. HAZARDOUS
MATERIALS. Tenant shall comply with all Hazardous Materials
requirements of the Prime Lease as applicable to the Premises.
39. SUCCESSORS. This
Sublease shall be binding on and inure to the benefit of the parties hereto
and
their respective successors and permitted assigns.
40. COUNTERPARTS. This
Sublease may be executed in one or more counterparts each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument. Signature copies may be detached from the counterparts
and attached to a single copy of this Sublease physically to form one
document. A facsimile counterpart signature delivered to each party
shall be deemed an original for the purpose of the execution of this
Sublease.
41. ENTIRE
AGREEMENT. This Sublease constitutes the complete and exclusive
agreement among the parties with respect to the matters contained herein and
supersede all prior written or oral agreements or statements by and among the
parties hereto, provided that this Sublease shall be at all times subject to
all
of the terms and conditions of the Prime Lease. Nothing contained in this
Sublease shall be construed to grant Tenant rights which are not granted to
Landlord under the Prime Lease. In the event that any terms of this Sublease
and
the Prime Lease conflict, the terms of the Prime Lease shall govern, except
with
respect to the financial terms contained herein.
(Signatures
on following page)
The
parties have executed this Sublease under Seal the day and year first above
written.
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WITNESS:
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LANDLORD:
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OCIMUM
BIOSOLUTIONS, INC., a Delaware corporation
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/s/
Xxxx X. Xxxxxxx
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By:
/s/ X.X. Xxxxxx
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(SEAL)
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Name:
Xxxxxx Xxxxxxxxxx
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Title:
President and Chief Financial Officer
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WITNESS:
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TENANT:
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a
Delaware corporation
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By:
/s/ Xxxxxxx X. Xxxxxxx
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(SEAL)
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Name:
Xxxxxxx X. Xxxxxxx, III
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Title:
Chief Executive Officer and
President
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