1
EXHIBIT 10.16
* * * * * * * * * * * *
LEASE AGREEMENT
Between
FP ROCKLEDGE, L.L.C.,
a Maryland limited liability company
("Landlord")
And
MA BIOSERVICES, INC.
a Delaware corporation
("Tenant")
* * * * * * * * * * * *
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EXHIBIT 10.16
LEASE AGREEMENT
BASIC LEASE INFORMATION
Landlord: FP ROCKLEDGE, L.L.C., its successors and assigns
Tenant: MA BIOSERVICES, INC., a Delaware corporation
Guarantor: BIORELIANCE CORP., a Delaware corporation
Building: The building (the "Building") to be constructed on
the land (the "Land") described on Exhibit B
hereto and known as Lot Z in the Shady Grove Life
Sciences Center, Montgomery County, Maryland, as
more particularly outlined and labeled in Exhibit
"A" to the Lease, as the same may be modified from
time to time during the term of the Lease.
Premises: The premises located on the 1st, 2nd and 3rd
floors of the Building, as more fully described in
Section 1.2 of the Lease, and shown in the floor
plans attached as Exhibit A-1 to the Lease.
Expansion Space: Approximately 8,500 square feet on the third floor
of the Building and shown on the plan attached as
Exhibit A-2 to the Lease subject to adjustment in
accordance with Section 1.2.
Rent Commencement Date: The earlier of (i) Tenant's beneficial occupancy
of all of the Premises or of the 1st and 2nd
floors of the Premises (Tenant shall not take
occupancy of less than the entire 1st and 2nd
floors); and (ii) the date of Substantial
Completion of the Building for purposes of rent
commencement (as set forth in the Work Agreement
attached hereto as Exhibit "D") ("Substantial
Completion"); provided, however, if Substantial
Completion under (ii) above occurs prior to
Tenant's beneficial occupancy under (i) above,
then in such event the Rent Commencement Date
shall be the later of (A) Substantial Completion
of the Building; or (B) August 31, 1998.
Term: From the Rent Commencement Date through the last
day of the 180th full month following the month in
which the Rent
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EXHIBIT 10.16
Commencement Date occurs.
Rentable Area of the 48,500 square feet, subject to adjustment pursuant
Building: to Section 1.2 of the Lease.
Rentable Area of the 40,000 square feet, subject to adjustment pursuant
Premises: to Section 1.2 of the Lease.
Tenant's Proportionate 82.47%, (computed by dividing the Rentable Area of
Share: the Premises by the Rentable Area of the Building
and multiplying the resulting quotient to the
second decimal place by one hundred), subject to
adjustment pursuant to Sections 1.2 and 6.4 of the
Lease. In the event that prior to the date of
Substantial Completion Tenant occupies the 1st and
2nd floors only of the Premises, Tenant's
Proportionate Share shall be 64.95% until the date
of Substantial Completion whereupon it shall be
82.47%, in each case subject to adjustment
pursuant to Sections 1.2 and 6.4 of the Lease.
Annual Base Rental: $540,000 per year ($45,000 per month) subject to
adjustment pursuant to Sections 1.2 and 5.2 of the
Lease, which amount for the initial Lease Year
shall be the product of $13.50 multiplied by the
Rentable Area of the Premises. In the event that
prior to the date of Substantial Completion Tenant
occupies the 1st and 2nd floors only of the
Premises, the Annual Base Rental shall be
$425,250.00 per year ($35,437.50 per month) until
the date of Substantial Completion, whereupon
Annual Base Rental shall be in the amount first
set forth in this paragraph, subject to adjustment
pursuant to Sections 1.2 and 5.2 of the Lease.
Security Deposit: $70,000.00
Lease Year: The 12-month period beginning on the first day of
the first full month following the Rent
Commencement Date, and each anniversary thereof.
Landlord's Address for FP Rockledge, L.L.C.
Notices: c/o The Foulger Pratt Companies
1335 Piccard Drive, Suite 400
Rockville, Maryland 20850
Attention: Clayton F. Foulger
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EXHIBIT 10.16
With a copy to:
Michael Abrams
Rockledge Realty Partners
Three Bethesda Metro Center
Suite 700
Bethesda, MD 20814
With a copy to:
Linowes and Blocher LLP
1010 Wayne Avenue
Suite 1000
Silver Spring, Maryland 20910
Attention: Richard M. Zeidman, Esquire
Tenant's Address for MA BioServices, Inc.
Notices: 9900 Blackwell Road
Rockville, Maryland 20850
Attention: Chief Financial Officer
With a copy to:
Shulman, Rogers, Gandal, Pordy & Ecker, P.A.
11921 Rockville Pike
Suite 300
Rockville, Maryland 20852
Attention: Lawrence A. Shulman, Esquire
Broker(s): The Carey Winston Company, representing Landlord.
Cooperating Broker:
None
Exhibits:
Exhibit A Plat of the Land
Exhibit A-1 Floor Plan of the Premises
Exhibit A-2 Expansion Space
Exhibit B Legal Description of the Land
Exhibit C Cleaning Specifications
Exhibit D Work Agreement
Exhibit D-1 Method of Measurement
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EXHIBIT 10.16
Exhibit E Rules and Regulations
Exhibit F Certification of Rent Commencement Date
Exhibit G Form of Subordination, Attornment and Non-Disturbance
Agreement
Exhibit H Restrictive Covenant
Exhibit I Terms and Conditions for Equipment Installed on Roof
Exhibit J Tenant's Exterior Sign Specifications
Exhibit K Guaranty of Lease
The foregoing Basic Lease Information is hereby incorporated into and made a
part of the Lease Agreement ("the Lease"). Each reference in the Lease to
any information and definitions contained in the Basic Lease Information
shall mean and refer to the information and definitions hereinabove set
forth. If there is any conflict between the terms of the Lease and the
foregoing Basic Lease Information, the terms of the Lease shall prevail.
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EXHIBIT 10.16
TABLE OF CONTENTS
LEASE AGREEMENT
BASIC LEASE INFORMATION......................................................i
ARTICLE 1 PREMISES....................................................1
ARTICLE 2 TERM........................................................2
ARTICLE 3 LEASEHOLD IMPROVEMENTS......................................5
ARTICLE 4 ACCEPTANCE OF THE PREMISES AND BUILDING BY TENANT...........5
ARTICLE 5 RENTAL......................................................5
ARTICLE 6 OPERATING COSTS.............................................7
ARTICLE 7 SERVICES BY LANDLORD.......................................12
ARTICLE 8 UTILITIES..................................................13
ARTICLE 9 USE........................................................15
ARTICLE 10 LAWS, ORDINANCES, AND REQUIREMENTS OF PUBLIC...............15
ARTICLE 11 OBSERVANCE OF RULES AND REGULATIONS........................20
ARTICLE 12 ALTERATIONS; EQUIPMENT.....................................20
ARTICLE 13 LIENS......................................................22
ARTICLE 14 REPAIRS; DAMAGE BY TENANT..................................22
ARTICLE 15 INSURANCE..................................................23
ARTICLE 16 DAMAGE BY FIRE OR OTHER CASUALTY...........................26
ARTICLE 17 CONDEMNATION...............................................28
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EXHIBIT 10.16
ARTICLE 18 ASSIGNMENT AND SUBLETTING..................................30
ARTICLE 19 WAIVER OF CLAIMS; INDEMNIFICATION..........................34
ARTICLE 20 SURRENDER OF THE PREMISES..................................35
ARTICLE 21 ESTOPPEL CERTIFICATES......................................37
ARTICLE 22 SUBORDINATION..............................................37
ARTICLE 23 DEFAULT AND REMEDIES.......................................39
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EXHIBIT 10.16
TABLE OF CONTENTS
LEASE AGREEMENT
ARTICLE 24 WAIVER BY TENANT...........................................42
ARTICLE 25 SECURITY DEPOSIT/REPAYMENT OF ADVANCES.....................42
ARTICLE 26 [INTENTIONALLY OMITTED]....................................42
ARTICLE 27 ATTORNEYS' FEES AND LEGAL EXPENSES.........................43
ARTICLE 28 NOTICES....................................................43
ARTICLE 29 PARKING....................................................43
ARTICLE 30 EXPANSION OPTION...........................................44
ARTICLE 31 MISCELLANEOUS..............................................46
ARTICLE 32 RESTRICTIVE COVENANT.......................................49
ARTICLE 33 BUILDING SIGNAGE...........................................50
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EXHIBIT 10.16
LEASE AGREEMENT BETWEEN
FP ROCKLEDGE, L.L.C., ("LANDLORD")
and
MA BIOSERVICES, INC., (TENANT")
THIS LEASE, dated and effective this _____ day of October, 1997, is
made between Landlord and Tenant.
ARTICLE 1
PREMISES
Section 1.1 Landlord leases to Tenant, and Tenant leases from
Landlord, for the Term (as defined below) and subject to the provisions
hereof, to each of which Landlord and Tenant mutually agree, the Premises,
together with the right to use, in common with others, the lobby, entrances,
stairs, elevators, and other public areas of the Building (the "Common
Areas").
(a) The Rentable Area of the Premises is approximately as stated in
the Basic Lease Information; provided, however that Landlord shall, upon
completion of the Premises, cause precise measurements of the Building and
the Premises to be made by the Building architect, in accordance with the
Washington D.C. Association of Realtors Standard Method of Measurement
attached as Exhibit D-1 hereto, except as otherwise provided in the first
paragraph of Exhibit D-1. The Building architect shall promptly deliver a
certificate of the precise Rentable Area of the Building and the precise
Rentable Area of the Premises to Landlord and Tenant, and the Rentable Area
of the Premises and Tenant's Proportionate Share shall be adjusted upward or
downward accordingly. The Rentable Area of the Building and the Rentable
Area of the Premises, as finally determined pursuant to this Section 1.2, and
the Annual Base Rental and Tenant's Proportionate Share based thereon, shall
be set forth in the Certification of Rent Commencement Date to be executed by
the parties pursuant to Section 2.3 hereof.
(b) The Rentable Area of the Premises determined pursuant to this
Section 1.2 shall be used as the basis for the computation of all items of
Rental (as hereinafter defined), including Annual Base Rental, Tenant's Basic
Costs (as hereinafter defined) and Tenant's Utility Costs (as hereinafter
defined), and each such item shall be recomputed, if necessary, based on such
Rentable Area of the Premises.
(c) The Rentable Area of the Building is subject to change from time
to time in connection with changes to the Building and/or to the premises of
other tenants thereof. At the request of Landlord, accompanied by a
certificate from the Building architect of the Rentable Area of the Premises
and the Rentable Area of the Building, Tenant shall, from time to time,
execute instruments confirming the Rentable Area of the Premises and the
Rentable Area of the Building.
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EXHIBIT 10.16
ARTICLE 2
TERM
Section 2.1 The term of this Lease (the "Term") shall begin on
the Rent Commencement Date and, unless sooner terminated, the Term shall end
at one minute prior to midnight (i.e., at 11:59 p.m.) on the last day of the
180th full month following the Rent Commencement Date.
Section 2.2 Provided that Tenant performs all of Tenant's
obligations under this Lease, including the payment of Rental, Tenant shall,
during the Term, enjoy the Premises without disturbance from Landlord or any
other persons claiming under or acting by or through Landlord, subject,
however, to the terms of this Lease.
Section 2.3 Landlord shall notify Tenant of the Rent Commencement
Date, as such date is determined in accordance with the terms set forth in
the Basic Lease Information, and within fifteen (15) days after delivery of
such notice Landlord and Tenant shall execute a written instrument
substantially in the form of Exhibit F, attached hereto, confirming such date
as the Rent Commencement Date. Any failure of the parties to execute such
written instrument shall not affect the validity of the Rent Commencement
Date as determined as aforesaid.
Section 2.4 Subject to the provisions of Section 2.4(d), Tenant
shall have the right (the "Renewal Option") to renew or extend the Term for
one (1) additional period of five (5) years (the "First Renewal Period") and
at the end of the First Renewal Period, for one (1) additional period of five
(5) years (the Second Renewal Period) (collectively, the First Renewal Period
and the Second Renewal Period are hereinafter called the "Renewal
Period[s]"). The Renewal Option shall be exercisable by Tenant by giving
written notice of the exercise thereof to Landlord at least nine (9) months
prior to the expiration of the initial Term or the First Renewal Period, as
the case may be. The Renewal Option may not be exercised for any Renewal
Period for less than all space in the Building then leased by Tenant,
including Expansion Space.
(a) In the event that Tenant exercises the Renewal Option in
accordance with the provisions hereof, then the Term shall be extended for
the First Renewal Period or the Second Renewal Period, as the case may be.
Except as otherwise expressly provided herein, the Renewal Periods shall be
upon the same terms, covenants and conditions as set forth herein with
respect to the immediately preceding Term. All references in this Lease to
the Term shall be construed to mean the initial Term and the Renewal Periods
unless the context clearly indicates that another meaning is intended. For
purposes of this Lease, no distinction is made between the terms "extend" and
"renew," or any variations thereof.
(b) The Annual Base Rental for the Premises payable pursuant to
Article 5 hereof for the first Lease Year during each of the Renewal Periods
shall be ninety-five percent (95%) of the Fair Market Rental Rate (as defined
below) of the Premises as of the commencement of the applicable Renewal
Period.
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EXHIBIT 10.16
(c) Landlord and Tenant shall employ the procedure and timetable
described below for the purpose of computing the Fair Market Rental Rate of
the Demised Premises and the Base Annual Rental properly payable during the
first lease year of each Renewal Period:
(i) Not later than the one hundred seventieth (170th) day
prior to the expiration of the initial Term or the First Renewal Period, as
applicable (the "Expiration"), Landlord shall deliver to Tenant notice of its
proposed Annual Base Rental for the Premises during the first Lease Year of
the forthcoming Renewal Period.
(ii) Not later than the one hundred sixty-fifth (165th) day
prior to Expiration. Tenant shall send to Landlord notice of its proposed
Annual Base Rental for the Premises.
(iii) In the event the parties negotiate and agree to an Annual
Base Rental and have executed a written agreement establishing same on or
before the one hundred fifty-fifth (155th) day prior to Expiration, then said
Annual Base Rental shall be binding upon the parties commencing with the
first Lease Year of the forthcoming Renewal Period.
(iv) In the event the parties have failed to execute such an
agreement by said date, then Tenant shall engage an appraiser, who is a
member of the American Institute of Real Estate Appraisers (a "MAI
Appraiser"), on or before the one hundred thirty-fifth (135th) day prior to
Expiration, and shall notify the Landlord thereof. In the event Tenant does
not engage a MAI Appraiser as required above, then the Annual Base Rental
last proposed by the Landlord shall be deemed the Annual Base Rental for the
first Lease Year of the forthcoming Renewal Period.
(v) Not later than the one hundred fifteenth (115th) day prior
to Expiration, Tenant shall deliver to Landlord a copy of its appraiser's
determination of the Fair Market Rental Rate as aforesaid. In the event
Tenant does not deliver a copy as aforesaid, then the Annual Base Rental last
proposed by Landlord shall be deemed the Annual Base Rental for the first
Lease Year of the forthcoming Renewal Period.
(vi) In the event the parties negotiate and agree to an Annual
Base Rental, and have executed a written agreement establishing same on or
before the one hundredth (100th) day prior to Expiration, then said Annual
Base Rental shall be binding upon the parties commencing with the first Lease
Year of the forthcoming Renewal Period.
(vii) In the event the parties have failed to execute such an
agreement by said date, then Landlord shall engage a MAI Appraiser, on or
before the ninety-fifth (95th) day prior to Expiration, and shall notify the
Tenant thereof. In the event Landlord does not engage a MAI appraiser as
required above, then the Annual Base Rental proposed by Tenant's appraiser
shall be deemed the Annual Base Rental for the first Lease Year of the
forthcoming Renewal Period.
(viii) No later than seventy-fifth (75th) day prior to
Expiration, Landlord shall deliver to Tenant a copy of its appraiser's
determination of the Fair Market Rental Rate as aforesaid. In the event
Landlord does not deliver a copy as aforesaid, then the Annual Base Rental
last proposed by Tenant's appraiser shall be deemed the Annual Base Rental
for the first Lease Year of the forthcoming Renewal Period.
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EXHIBIT 10.16
(ix) In the event the parties negotiate and agree to an Annual
Base Rental, and have executed a written agreement establishing same on or
before the seventieth (70th) day prior to Expiration, then said Annual Base
Rental shall be binding upon the parties commencing with the first Lease Year
of the forthcoming Renewal Period.
(x) In the event the parties have failed to execute such an
agreement by said date, then the two (2) MAI Appraisers shall choose a third
MAI Appraiser and notify Landlord and Tenant of such choice. Each party
shall bear the cost of its appointed MAI Appraiser and shall share equally
the cost of the third MAI Appraiser. In the event that said two (2) MAI
Appraisers cannot agree on the choice of a third MAI Appraiser and notify the
parties thereof by the sixty-fifth (65th) day prior to Expiration, then the
President of the Montgomery County Board of Realtors shall chose a third MAI
Appraiser on or before the fifty-fifth (55th) day prior to Expiration.
(xi) Not later than the forty-fifth (45th) day prior to
Expiration, the third appraiser shall determine the Fair Market Rental Rate
of the Premises, by selecting as such Fair Market Rental Rate either (i) the
Fair Market Rental Rate proposed by Tenant's MAI Appraiser or (ii) the Fair
Market Rental Rate proposed by Landlord's MAI Appraiser and submitting such
determination to each party in writing. Based on said third MAI Appraiser's
determination, Landlord and Tenant shall promptly thereafter execute a
written agreement establishing the aforesaid Annual Base Rental, which rent
shall be binding upon the parties commencing with the first Lease Year of the
forthcoming Renewal Period.
(xii) During each of the second, third, fourth and fifth Lease
Years of each Renewal Period, the Annual Base Rental shall be adjusted in the
same manner as described in Section 5.2 of this Lease.
(d) The Renewal Option referred to in this Section 2.4 may not be
exercised by Tenant if, at the time specified in Section 2.4(a) for
exercising such option and at commencement of the applicable Renewal Period,
(i) this Lease shall not be in full force and effect, or (ii) an event of
default (as described in Article 23) shall have occurred and shall be
continuing, or (iii) Tenant occupies less than fifty percent (50%) of the
Rentable Area of the Premises and does not demonstrate to the reasonable
satisfaction of Landlord an intent to occupy at least fifty percent (50%) of
the Rentable Area of the Premises within two (2) years following the
commencement of such Renewal Period and for the remainder of such Renewal
Period, unless such requirement is waived in writing by Landlord. If Tenant
shall fail to exercise the Renewal Option during the time or in the manner
provided in this Section 2.4 for the exercise thereof, or if at the time
specified for the exercise of such Renewal Option Tenant shall not be
entitled to exercise such option because of the provisions of this Section
2.4, then, and in either event, such Renewal Option shall be absolutely void
and of no force and effect.
(e) For purposes of this Lease, the term "Fair Market Rental Rate"
means the fair market rental rate of the Premises that would be agreed upon
between a landlord and a tenant entering into a new Lease in a comparable
Building of comparable age, assuming the following: (i) the landlord and
tenant are typically motivated; (ii) the landlord and tenant are well
informed
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EXHIBIT 10.16
and well advised and each is acting in what it considers its own best interest;
(iii) the Premises are not improved with any Project Upgrades in excess of the
Improvement Allowance, or any Tenant Specialty Items (all as defined in the Work
Agreement attached hereto as Exhibit D); (iv) the Premises will be used as
office and laboratory space; (v) in the event the Premises have been destroyed
or damaged by fire or other casualty, the Base Building Improvements, and the
Project Upgrades up to the amount of the Improvement Allowance (all as defined
in Exhibit D) have been fully restored; (v) the Premises are to be let with
vacant possession and subject to the provisions of this Lease for a five-year
term (taking into account the provisions of this Lease, including the Tenant's
obligation to pay for Tenant's Basic Costs and Tenant's Utility Costs); and (vi)
taking into account market rents then being charged for comparable space in
other similar buildings in comparable locations and in the North Rockville,
Shady Grove area.
ARTICLE 3
LEASEHOLD IMPROVEMENTS
The terms and provisions of Exhibit D (the "Work Agreement") shall
govern the construction and installation of all Base Building Improvements,
Project Upgrades and Tenant Specialty Items (as such terms are defined in
Exhibit D).
ARTICLE 4
ACCEPTANCE OF THE PREMISES AND
BUILDING BY TENANT
Taking possession of the Premises by Tenant, for beneficial use and
occupancy, shall be conclusive evidence that Tenant: (a) accepts the
Premises as suitable for the purposes for which they are leased; (b) accepts
the Building and every part and appurtenance thereof as being in a good and
satisfactory condition, except for punch list items; and (c) accepts the
Premises in "As Is" condition and waives any defects in the Premises or the
Building, except punch list items and latent defects. Tenant shall not
occupy or use the Premises prior to the Rent Commencement Date without
Landlord's prior consent and, unless all provisions of the Lease shall be in
full force and effect
ARTICLE 5
RENTAL
Section 5.1 Commencing on the Rent Commencement Date, Tenant
shall pay to Landlord monthly, in advance, without demand, on the first day
of each calendar month during each Lease Year, an annual rental in an amount
equal to one-twelfth (1/12) of the Annual Base Rental specified in the Basic
Lease Information, subject to adjustment as provided in Sections 1.2 and 5.2
hereof (the "Annual Base Rental"). The first monthly installment of Annual
Base Rental shall be payable in advance by Tenant on the date of execution of
this Lease. If the Rent
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EXHIBIT 10.16
Commencement Date is a date other than the first day of a calendar month, then
the monthly installment of Rental (defined below) for the period from the Rent
Commencement Date to the first day of the next month for the first month for
which rent is owing, being a fractional month, shall be appropriately prorated.
If the Lease terminates on a date other than the last day of a calendar month,
then the monthly installment of Rental for the last month for which rent is
owing, being a fractional month, shall be appropriately prorated. The
installment of Annual Base Rental due for the first month of the Term has been
deposited with Landlord by Tenant contemporaneously with the execution hereof.
Section 5.2 Beginning the first day of the second (2nd) Lease
Year and continuing each Lease Year thereafter, the Annual Base Rental
payable by Tenant shall be increased to an amount equal to the product
obtained by multiplying (i) the Annual Base Rental for the previous Lease
Year by (ii) one hundred three percent (103%).
Section 5.3 All Rental shall be paid to Landlord by Tenant when
due, without abatement (except as otherwise set forth in this Lease),
deduction, offset, recoupment or counterclaims, in lawful money of the United
States, at Landlord's Address for Notices as specified in the Basic Lease
Information, or such other place as Landlord may from time to time
designate. The term "Rental" or "rent" as used herein means the then
applicable Annual Base Rental, Tenant's Basic Costs, Tenant's Utility Costs,
any charges for special services, and all other rent and other sums,
including without limitation all sums to be paid by Tenant to Landlord
pursuant to the Work Agreement (whether characterized as rent or otherwise)
payable by Tenant under this Lease, (including, without limitation, any sums,
whether characterized as rent or otherwise, payable by any assignee or
subtenant of Tenant pursuant to the terms of Article 18). All past due
amounts of Rental, including, without limitation, any and all payments to be
made by Tenant pursuant to this Article 5 and Articles 6 and 8 which are not
paid within ten (10) days after the due date thereof, shall bear interest
from the date due until paid at a rate per annum equal to five percent (5%)
above the prime rate (the "Prime Rate") publicly announced by NationsBank,
N.A., from time to time, and all such interest shall be payable to Landlord
on demand; provided, however, that any interest payable pursuant to this
Section 5.3 shall never exceed the Highest Lawful Rate. The term "Highest
Lawful Rate" as used herein shall mean the maximum rate of interest from time
to time permitted to be charged under applicable law to Tenant with respect
to the indebtedness for which such interest is charged under this Lease. In
addition to such interest charge, if Tenant fails to pay in full any amount
of Annual Base Rental within ten (10) days after the due date thereof (except
that such ten (10) days shall commence on the date notice is sent to Tenant
no more than two (2) times in any twelve (12) month period) or any amount of
Rental other than Annual Base Rental within three (3) days after receipt of
written notice from Landlord that the same is overdue, Tenant shall also pay
to Landlord on demand a late payment service charge (to cover Landlord's
administrative and overhead expenses of processing late payments) equal to
five percent (5%) of such unpaid amount for each and every calendar month or
part thereof after the due date that such amount has not been paid to
Landlord.
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EXHIBIT 10.16
ARTICLE 6
OPERATING COSTS
Section 6.1 Throughout the Term, Tenant shall pay to Landlord
Tenant's Proportionate Share of the Basic Costs (as defined in Section 6.2)
incurred by Landlord during such Lease Year ("Tenant's Basic Costs").
Tenant's obligation to pay Tenant's Basic Costs shall be determined as
follows:
(a) Before the beginning of the first Lease Year and thereafter
before the beginning of each Lease Year during the Term, Landlord shall
furnish Tenant with Landlord's estimate of the amount of Tenant's Basic Costs
for such Lease Year. By the first day of each month during each Lease Year,
commencing with the first Lease Year following the Rent Commencement Date,
Tenant shall pay 1/12 of Landlord's estimate of Tenant's Basic Costs for such
Lease Year.
(b) (i) Within the first sixty (60) days of each Lease Year during
the Term (beginning with the second Lease Year), or as soon thereafter as is
reasonably practical, Landlord shall furnish to Tenant a detailed statement,
certified by Landlord to be correct ("Expense Statement ") of the actual amount
of Tenant's Basic Costs for the previous Lease Year.
(i) Within thirty (30) days after the delivery of the Expense
Statement, Tenant shall make a lump sum payment to Landlord equal to the
amount, if any, by which the actual amount of Tenant's Basic Costs exceeds
the amount that Tenant has paid toward the estimated amount of Tenant's Basic
Costs for such previous Lease Year. Tenant's obligation under this
subsection shall survive the expiration or sooner termination of this Lease.
(ii) If the actual amount of Tenant's Basic Costs is less than
the amount Tenant has paid toward the estimated amount of Tenant's Basic
Costs for such previous Lease Year, Landlord shall refund the excess to
Tenant within thirty (30) days after the issuance of the Expense Statement
or, at Landlord's option, Landlord shall apply such amount to the next
payments of Rental due hereunder. Landlord's obligation under this
subsection shall survive the expiration or sooner termination of this Lease.
(iii) The effect of the reconciliation payment or adjustment
pursuant to (ii) or (iii) above is that Tenant shall pay the actual amount of
Tenant's Basic Costs for each Lease Year during the Term.
(c) If the Rent Commencement Date occurs on a date other than the
first day of a Lease Year, or the Term ends on a date other than the last day
of a Lease Year, then the actual amount of Tenant's Basic Costs incurred
during the Lease Year in which the Rent Commencement Date or the last day of
the Term, as applicable, occurs (as the same may be adjusted pursuant to the
penultimate paragraph of Section 6.2) shall be computed and an appropriate
proration shall be made so that Tenant pays that portion of Tenant's Basic
Costs incurred during such Lease Year determined by reference to a fraction,
the numerator of which is the number of days during such Lease Year that are
included in the Term, and the denominator of which is the number of days in
such Lease Year.
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EXHIBIT 10.16
(d) Within sixty (60) days after delivery of an Expense Statement,
Tenant shall have the right to notify Landlord if it intends to examine
Landlord's books and records with respect to such Expense Statement. If
Tenant so notifies Landlord, then Tenant and its representatives shall have
the right, at Tenant's expense, during normal business hours for a period of
30 days after Tenant's notice, to examine Landlord's books and records
relating to Basic Costs for the previous Lease Year. Tenant shall notify
Landlord within such 30-day period if it disputes such Expense Statement
setting forth the reasons therefor (a "Notice of Dispute"). If Tenant either
(i) fails to notify Landlord of its intention to examine Landlord's books and
records within sixty (60) days after delivery of an Expense Statement, or
(ii) fails to give Landlord a Notice of Dispute within the 30-day period of
examination hereinabove referred to, then Tenant shall be deemed to have
accepted such Expense Statement for all purposes hereunder. If Landlord
shall have overstated Tenant's obligation for Tenant's Basic Costs for any
Lease Year, Landlord shall promptly refund such excess. If Landlord shall
have overstated Tenant's obligation for Tenant's Basic Costs for any Lease
Year by more than four percent (4%), then Landlord shall reimburse Tenant for
the reasonable costs of Tenant's examination of Landlord's books and records.
Section 6.2 As used herein, "Basic Costs" means all expenses,
costs, and disbursements of every kind which Landlord incurs in connection
with the operation, repair, and maintenance of the Building, computed on an
accrual basis. All Basic Costs shall be determined according to generally
accepted accounting principles. Basic Costs shall include, but are not
limited to, the following:
(a) Wages, salaries, and fees of all personnel or entities
(exclusive of any of Landlord's personnel above the rank of Building Manager)
directly engaged in the operation, repair, maintenance, or security of the
Building, including taxes, insurance, and benefits relating thereto.
(b) The cost of all supplies and materials used in the operation,
repair, security, and maintenance of the Building.
(c) The cost of all maintenance, janitorial, security, and service
agreements for the Building and the equipment therein, including, without
limitation, alarm service, sprinkler service, water treatment services,
janitorial services, window cleaning, service of electrical and mechanical
components, rubbish removal, elevator maintenance, extermination service,
plumbing service, and landscaping.
(d) The cost of all insurance relating to the Building for which
Landlord is responsible hereunder or which Landlord reasonably considers
necessary or appropriate for the operation of the Building, including,
without limitation, the cost of property, casualty and liability insurance
applicable to the Building and personal property used in the maintenance,
operation, repair, and security of the Building, and the cost of rental
insurance in such amounts as will reimburse Landlord for all losses of
earnings and other income attributable to such perils as are insured against
by Landlord.
(e) Taxes (as defined in and in accordance with the terms of Section
6.6).
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EXHIBIT 10.16
(f) The cost of repairs and maintenance of the Building.
(g) The cost of capital improvement items (i) which partially reduce
operating costs for the general benefit of the Building's tenants, or (ii)
which are necessary to comply with a statute, rule, regulation, or directive
promulgated by any governmental authority after the date of this Lease,
together with interest on the unamortized cost at the actual rate financed or
at the rate which would have been payable to a lender had the capital
improvement item been financed, as the case may be. All such costs shall be
amortized over the reasonable life of the capital investment items, with the
reasonable life and amortization schedule being determined by Landlord in
accordance with generally accepted accounting principles in accordance with
the reasonable life and amortization or depreciation schedule permitted under
the Internal Revenue Code.
(h) Landlord's central accounting costs, together with all
accountants' salaries and fees incurred for the preparation of Expense
Statements or to reduce Basic Costs.
(i) A three percent (3%) management fee (based on gross rental
income) fee by personnel or entities selected by Landlord to manage the
Building which may be an affiliate of Landlord (whether or not paid) to
manage the Building.
(j) Legal and appraisal fees relating to the operation, repair, or
maintenance of the Building, including legal fees incurred in order to reduce
Basic Costs and, without limitation, expert witness fees incurred by Landlord
and the costs of the filing, institution, and/or prosecution of any
application or proceeding filed or instituted by Landlord in order to reduce
the taxes included in Basic Costs.
(k) The aggregate of all utility costs incurred by Landlord,
including without limitation the amount of credits not attributable to usage
by other tenants of the Building, given to Tenant in accordance with Section
8.1(a) hereof, in connection with the operation, maintenance and repair of
the Building and the Land including, without limitation, costs of water,
power, fuel, heating, lighting, air conditioning, and ventilating and fees of
engineers or electrical consulting firms engaged to do work relating to such
utility costs or the determination thereof (collectively, "Utility Costs").
Section 6.3 Notwithstanding anything in Section 6.2 to the
contrary, Basic Costs shall not include:
(a) any of the Project Upgrades or any tenant work, painting or
decorating for space leased to other tenants of the Building, and any
alterations, painting or decorating performed for Tenant or other tenants of
the Building after the initial occupancy thereby;
(b) legal and other professional fees incurred in connection with
disputes with tenants and preparation and negotiation of leases and other
agreements with other tenants, prospective tenants, mortgagees, purchasers
and other parties that are unrelated to the operation, repair or maintenance
of the Building;
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EXHIBIT 10.16
(c) interest and amortization of indebtedness or any costs of
financing or refinancing, depreciation, or ground rent (other than any amount
payable by Landlord for real estate taxes, insurance, or repairs or other
items of Basic Costs under any ground lease, to the extent such amounts are
otherwise included in Basic Costs under Sections 6.2 and 6.3 hereunder) or
any costs incurred in connection with a transfer, sale or other disposition
of the Building, the Land, or any interest of the Landlord therein;
(d) compensation paid to any employees of Landlord above the rank of
Building Manager (other than the management fee referred to in Section 6.2);
(e) leasing commissions and marketing, advertising and promotional
expenses;
(f) costs of improving, painting or decorating any space occupied by
Landlord or any of its employees or affiliates in the Building;
(g) The cost of any work performed for, or service or utility
furnished to, any tenant at such tenant's cost, for which a specified charge
is made by Landlord;
(h) any dues or subscriptions to any entities or organizations;
(i) costs of any special services or repairs provided or rendered to
a tenant of the Building which are not provided or rendered generally to the
other tenants thereof;
(j) expenses of a capital nature, including without limitation
capital improvements, capital repairs, capital equipment and capital tools,
all as determined in accordance with generally accepted accounting
principles, consistently applied, in each case except as are expressly
included in Basic Costs under Section 6.2(g);
(k) costs of replacing or otherwise correcting defects in the
initial construction of the Building or the Building's parking facilities;
(l) any expenses for repairs or maintenance which are recovered
under warranties or service contracts;
(m) the cost of any item paid to any entity or person related to or
affiliated with Landlord to the extent such cost exceeds the amount payable
for such services at the then-existing market rates to unrelated parties or
entities;
(n) costs of additional insurance premiums for the Building due to
any tenant's operations in such tenant's premises;
(o) the cost of repairs or replacements incurred by reason of fire
or other casualty;
(p) any other costs or expenses for which Landlord actually receives
reimbursement from any source (other than amounts paid by tenants of the
Building for their proportionate shares of Basic Costs), including, without
limitation, insurance proceeds and condemnation awards.
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EXHIBIT 10.16
Section 6.4 In the event of any increase or decrease in the
Rentable Area of the Building and/or the Premises, then, effective as of the
date of any such change (the "Rentable Area Change Date"), Tenant's
Proportionate Share shall be recalculated in accordance with Section 1.2
hereof. In the event Tenant's Proportionate Share is recalculated pursuant
to this Section 6.4, the computation of Basic Costs as provided in Section
6.2 of this Lease shall not be altered; rather, the reconciliation payments
for Tenant's Basic Costs pursuant to Section 6.1(b) for the Lease Year in
which such change occurs shall be computed to reflect the recalculation of
Tenant's Proportionate Share effective as of the Rentable Area Change Date.
Section 6.5 Notwithstanding anything to the contrary herein, the
Basic Costs (exclusive of Utility Costs, Taxes and insurance premiums) in any
Lease Year, commencing with the second Lease Year, shall not exceed one
hundred five percent (105%) of the Basic Costs (exclusive of Utility Costs,
Taxes and insurance premiums) for the immediately preceding Lease Year.
Section 6.6
(a) The term "Taxes" means the total of all taxes, assessments and
governmental charges, general and special, ordinary and extraordinary,
foreseen and unforeseen, including assessments for public improvements and
betterments, assessed, levied or imposed with respect to the Land , the
Building or any part thereof, including any assessments pending or proposed
as of the Rent Commencement Date and any other taxes, fees, charges and
governmental impositions, duties and charges of every kind and nature which
are or may during the Lease Term and any Renewal Period, be charged, levied,
assessed or imposed upon, or become a lien or liens upon the Lease, the
Building or any part thereof under or as a result of any present or future
laws, ordinances, or regulations of the state, county or city government or
of any other municipal agencies or lawful authority whatsoever. The
foregoing and following provisions notwithstanding, Taxes shall not include
any liens established in connection with Landlord's construction of the
Building or any part thereof, or any income, inheritance, franchise, transfer
or recordation taxes.
(b) If, at any time during the Lease Term, the present method of
taxation shall be changed so that in lieu of the whole or any part of any
taxes, assessments or governmental charges levied, assessed or imposed on
real estate and the improvements thereon, there shall be levied, assessed or
imposed on Landlord a capital levy or other tax directly on the rents
received therefrom and/or a tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents for the Premises, then all such
taxes, assessments, levies or charges, or the part thereof so measured or
based, shall be deemed to be included within the term "Taxes" for the
purposes hereof.
(c) In addition to Taxes, Tenant shall pay, during the Lease Term
and any Renewal Period, all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to Tenant.
Tenant shall have its personal property taxed separately from the Premises.
If any such personal property taxes for which Tenant is liable are levied or
assessed against Landlord or the Premises and if Landlord elects to pay the
same or if the assessed value
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EXHIBIT 10.16
of the Lease is increased by inclusion of such personal property, and Landlord
elects to pay such taxes based on such increase, Tenant shall pay Landlord on
demand such taxes or such increased part of such taxes, as Rental.
(d) Upon the written request of Tenant, Landlord shall contest any
Taxes of which Tenant is obligated to pay its Proportionate Share. In such
event, except as provided below, all reasonable out-of-pocket expenses
incurred by Landlord in attempting to obtain a reduction in Taxes shall be
included in the Basic Costs; provided, however, that Tenant shall be entitled
to instruct Landlord to retain a professional to prosecute such appeal only
on a contingent fee basis, such fee to be subject to Tenant's reasonable
approval. Taxes which are being contested shall nevertheless be included in
Basic Costs. If Landlord shall receive a refund of any part of the Taxes,
Landlord shall promptly pay Tenant its Proportionate Share of such refund,
less any such contingent fee, which fee shall not be included in the Basic
Costs or Taxes.
ARTICLE 7
SERVICES BY LANDLORD
Section 7.1 While Tenant is occupying the Premises, Landlord
shall furnish the Premises with: (a) passenger elevator service in common
with other tenants of the Building, which currently includes: passenger
elevators serving the Building's three floors; provided, however, that, so
long as Landlord maintains at least one elevator operating at all times,
Landlord may reasonably limit the number of elevators to be operated after
Normal Business Hours (as defined below), on Saturdays, Sundays, and
holidays, and during periods of construction or for safety or maintenance
purposes; (b) janitorial cleaning services substantially as set forth in
Exhibit C, attached hereto and made a part hereof; (c) replacement, as
necessary, of all building standard lamps and ballasts and light fixtures
within the Premises; and (d) the services provided for in Sections 7.2 and
8.3. If Tenant requires services which are not specified herein and Landlord
provides such services to Tenant, Tenant will pay to Landlord upon demand, as
additional Rental, Landlord's charges for providing such services as
described in Section 31.1 hereof.
Section 7.2 Landlord shall:
(i) provide Tenant, its employees and invitees prompt access (in a
manner consistent with a first-class building in the State of Maryland) into
the Building and the Premises twenty-four (24) hours each day, seven (7) days
per week;
(ii) furnish a directory of the names and locations of its tenants in
the lobby of the Building. The initial listing of the name and suite number
of Tenant and as many other listings as Tenant reasonably requires shall be
furnished without charge. The subsequent listings of additional names or
room numbers and changes or revisions of listings shall be made by Landlord
at the cost of Tenant; and
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EXHIBIT 10.16
(iii) provide limited access control in the form of an electronic card
key system for the Building during other than Normal Business Hours.
Landlord, however, shall have no liability to Tenant, its employees, agents,
invitees or licensees for losses due to theft or burglary, or for damages
done by unauthorized persons on the Premises, and neither shall Landlord be
required to insure against any such losses.
Section 7.3 Nothing contained in this Article 7 shall preclude
Landlord from including in Basic Costs (pursuant to Section 6.2) any of the
costs and expenses referred to in this Article 7 to the extent the same are
within the definition of Basic Costs.
ARTICLE 8
UTILITIES
Section 8.1
(a) All Building utilities shall be metered to Tenant and Landlord
shall credit Tenant monthly in an amount to be determined for utility costs
which are not attributable to Tenant's usage (the "Credit"). In the case of
electricity and the "Building HVAC" (hereinafter defined), such mutual
agreement shall be based upon the following procedure: (i) "check meters"
shall be installed by Landlord for each space under lease to tenants other
than Tenant, and (ii) an estimate shall be prepared by Landlord concerning
the consumption of electricity attributable to the Common Areas; and (iii) in
the event that Tenant disagrees with such determination of consumption not
attributable to Tenant's usage, Tenant shall have the right to have Landlord
conduct or have conducted a survey of electricity consumption by Tenant, by
other tenants of the Building and with respect to the Common Areas. The
results of such survey shall be determinative in computing such monthly
credit. If the results of such survey indicate a plus or minus variance from
Landlord's determination of consumption of less than ten percent (10%),
Tenant shall pay all of the costs and expenses related to the conduct of such
survey. The amount of the Credit for all other utilities shall be as
determined by survey. Tenant shall not install or operate in the Premises
any equipment or other machinery that, in the aggregate, will cause Tenant to
use more than 2235 amps of electricity (the "Premises' Standard Electrical
Capacity"), without: (i) obtaining the prior written consent of Landlord,
who shall not unreasonably withhold its consent but may condition its consent
upon the payment by Tenant of additional Rental for additional wiring or
other expenses resulting therefrom, (ii) securing all necessary permits from
governmental authorities and utility companies and furnishing copies thereof
to Landlord, and (iii) complying with all other requirements reasonably
imposed by Landlord.
(b) If Tenant's equipment shall result in electrical demand in
excess of the Premises' Standard Electrical Capacity, Landlord shall have the
right, in its sole discretion, to install additional transformers,
distribution panels, wiring and other applicable equipment at the expense of
Tenant. None of the equipment so installed shall be deemed to be Tenant's
personal property.
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EXHIBIT 10.16
Section 8.2 While Tenant is occupying the Premises and is not in
default under this Lease, Landlord shall make available to Tenant the
following services: (a) potable water at those points of supply provided for
normal lavatory use by tenants in the Building, and in the executive suite
bathrooms, lunchroom and laboratory sinks in the Premises; (b) heating,
ventilating, and/or air conditioning in the Premises on business days from
8:00 a.m. to 7:00 p.m. (except holidays), at temperatures no less than 67
degrees Fahrenheit and no more than 77 degrees Fahrenheit in the office space
in the Premises, and not less than 69 degrees Fahrenheit and no more than 75
degrees Fahrenheit in the laboratory space in the Premises (the "Building
HVAC"); and (c) electricity to the first (1st) and second (2nd) floors of the
Premises and electric lighting for such floors and for common and public
areas and special service areas of the Building in the manner and to the
extent customarily provided in first-class buildings in Washington, D.C., all
of which services shall be provided to Tenant by Landlord and paid for by
Tenant as part of Tenant's Utility Costs. With respect to heating and/or air
conditioning, if Tenant requires air conditioning or heating in the Premises
outside the hours and days specified above, Landlord shall be obligated to
furnish such additional services only upon prior written notice from Tenant
given prior to noon of the previous business day. Tenant shall pay for any
such additional services requested by Tenant and furnished by Landlord at the
rate and in an amount equal to Landlord's actual cost of providing such
additional services, which amount shall include the expenses and costs
incurred by Landlord for any engineer and similar personnel engaged to
provide, and/or engaged during the period Landlord provides, such additional
services. Whenever machines or equipment that generate an increase in heat
or otherwise affect the air conditioning system are used in the Premises by
Tenant which affect the temperature or humidity otherwise maintained by the
air conditioning system, Landlord will have the right to install supplemental
air conditioning units in the Premises, and the full cost thereof, including
the cost of installation, operation, use, and maintenance, will be paid by
Tenant to Landlord on demand. Landlord shall have the right during the Term,
upon reasonable notice to Tenant, to enter the Premises to install meters and
conduct other tests and inspections to determine Tenant's use of water,
heating, ventilation, and/or air conditioning.
Section 8.3 Failure to furnish, or any stoppage of, the services
provided for in Article 7 above and this Article 8 resulting from any cause
will not make Landlord liable in any respect for damages to either person,
property, or business, nor be construed as an eviction of Tenant, nor entitle
Tenant to any abatement of rent, nor relieve Tenant from its obligations
under this Lease, except as hereinafter set forth in this Section 8.3.
Should any malfunction of the Building improvements or facilities occur,
Landlord will repair such malfunction promptly with reasonable diligence, but
Tenant will have no claim for rebate, abatement of rent, or damages because
of malfunctions or any interruptions in service, except as follows. In the
event that (i) electricity and/or heating or air conditioning (in season) of
the Premises, shall not be furnished for more than three (3) consecutive
business days, and (ii) Tenant, in its reasonable business judgment,
determines that it is unable to use and occupy the Premises (or any part
thereof) as a result thereof, then the Annual Base Rent Tenant is obligated
to pay hereunder shall abate with respect to that part of the Premises which
Tenant does not use and occupy, commencing on the fourth (4th) such day until
the date on which such services and utilities are restored, unless the
failure to furnish such services and utilities is caused by Tenant's acts or
omissions.
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EXHIBIT 10.16
Section 8.4 Tenant shall pay, during the Lease Term and any
Renewal Periods, for Tenant's consumption of any separately metered utilities
to the Premises directly to the utility companies when and as such charges
and costs become due. Tenant shall promptly change the name of the account
with each utility company having a meter separately serving the Premises, to
Tenant's name, so that Tenant shall be solely liable for all costs, charges
and meters for the Premises for utility consumption during the Lease Term and
any Renewal Period. Tenant shall pay Landlord for any submetered utilities,
at the rate charged by the local utility company, within fifteen (15) days
after receipt of an invoice therefor from Landlord, which invoice shall be
accompanied by a copy of the bill for the Building from the local utility
company. As used herein, "utilities" shall mean the electric current, gas,
water, sewer, cable and telephone and other utilities serving the Premises.
If Tenant defaults in payment of any charges for utilities, and such failure
continues for more than ten (10) days after Tenant's receipt of written
notice thereof from Landlord, Landlord may, at its option pay the same on
Tenant's account, and Tenant shall promptly reimburse Landlord together with
interest on such amount from the date of Landlord's invoice in accordance
with Section 5.3 hereof.
Section 8.5 It is understood and agreed that Tenant will have a
supplemental heating, ventilating and air conditioning system serving the
computer room in the Premises. Tenant shall have the right to install a
generator outside of the Building, in a location approved by Montgomery
County, as shown on the Plans for the Project Upgrades. It is understood and
agreed that Tenant will install air handling equipment on the roof of the
Building and in connection therewith shall comply with all of the provisions
of Exhibit I attached hereto. Throughout the Term of this Lease and any
Renewal Periods, Tenant shall have the right, in common with Landlord, to the
use of the roof of the Building for such air handling equipment. In
addition, Landlord shall provide Tenant with adequate space in the Building's
mechanical room for Tenant's air handling equipment.
ARTICLE 9
USE
The Premises shall be used only for general office use, and laboratory
space not to exceed 8,100 square feet, except with Landlord's prior written
consent, which consent shall not be unreasonably withheld, in accordance with
all applicable laws, rules, and regulations and for no other purpose. Tenant
agrees to use and maintain the Premises in a clean, safe, lawful, and proper
manner.
ARTICLE 10
LAWS, ORDINANCES, AND REQUIREMENTS OF PUBLIC
AUTHORITIES AND ENVIRONMENTAL COMPLIANCE
Section 10.1 Tenant shall, at its sole expense, (i) comply
with all laws, orders, ordinances, and regulations of Federal, state, county,
municipal, and other authorities having
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EXHIBIT 10.16
jurisdiction over the Premises ("Legal Requirements") relating to Tenant's use
and occupancy of the Premises, (ii) comply with any direction made pursuant to
law by any public officers requiring abatement of any nuisance or which imposes
upon Landlord or Tenant any duty or obligation arising from Tenant's occupancy
or use of the Premises or from conditions which have been created by or at the
insistence of Tenant (hereinafter "Legal Directive"), and (iii) indemnify
Landlord and hold Landlord harmless from any loss, cost, claim, or expense which
Landlord may incur or suffer by reason of Tenant's failure to comply with its
obligations under clauses (i) or (ii) above. If Tenant receives notice of any
such direction or of violation of any such law, order, ordinance, or regulation,
it shall promptly notify Landlord thereof and provide Landlord with a copy of
each written Legal Directive and each written response thereto. Landlord shall,
at its sole expense, comply with all Legal Requirements which are unrelated to
Tenant's use and occupancy of the Premises, and shall indemnify Tenant and hold
Tenant harmless from any loss, cost, claim or expense which Tenant may incur or
suffer by reason of Landlord's failure to comply with any such Legal
Requirement.
Section 10.2 Tenant shall not do, or permit anything to be
done in the Premises, or keep or suffer to be kept anything therein which
will in any way obstruct or interfere with the rights of the Landlord or of
the other occupants of the Building, or in any other way injure or annoy the
Landlord or the other occupants, or subject the Landlord to any liability for
injury to persons or damage to property. Tenant shall, at Tenant's sole cost
and expense, promptly comply with (i) all rules, regulations, and
requirements of the local Board of Fire Underwriters Rating Bureau or other
fire insurance rating organization for the area in which the Premises are
situated and of the Landlord's insurers, pertaining to the Premises, or to
fire preventive, warning and extinguishing apparatus and (ii) all directives,
rules and regulations of the fire marshal, health officer, building inspector
and other proper officers of the governmental agencies having jurisdiction
over the Premises. In the event that Tenant shall fail to comply with any of
the aforesaid laws, rules, regulations, requirements and recommendations,
Landlord or its agents may, after thirty (30) days prior written notice (or
sooner in an emergency) to Tenant and an opportunity to cure, enter the
Premises and take all such action and perform all such work as may be
necessary in order to cause compliance under this Section 10.2 and Tenant
agrees to reimburse Landlord promptly upon demand for any expense incurred by
Landlord in taking such action or performing such work together with interest
from the date of Landlord's invoice in accordance with Section 5.3 hereof.
Section 10.3 Hazardous Materials
(a) Landlord has heretofore delivered to Tenant, and Tenant has
reviewed, that certain Report of Phase I Environmental Site Assessment dated
September 4, 1997, prepared by Law Engineering and Environmental Services,
Inc. with respect to the Land (the "First Report"). Within one hundred
twenty (120) days prior to the Rent Commencement Date, Landlord shall employ
an independent engineer or engineering firm, which engineer or firm shall be
mutually acceptable to Landlord and Tenant, specializing in testing for the
presence of Hazardous Materials (as defined in Section 10.3(f) hereof)
contamination (the "Engineer") and Landlord shall authorize the Engineer to
conduct all necessary tests, including without limitation testing of
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EXHIBIT 10.16
all underground tanks (if any), to determine if any Hazardous Materials
contamination other than as disclosed by the First Report exists on or about the
Building or the Land. The cost of the testing described in the preceding
sentence shall be paid by Landlord. Landlord shall cause the Engineer to deliver
a copy of the Engineer's report concerning the results of tests performed
pursuant hereto (the "Second Report") to Landlord and Tenant no later than
ninety (90) days prior to the Rent Commencement Date. If the Engineer's report
states that no Hazardous Materials contamination other than as disclosed by the
First Report exists, then the Landlord shall cause the Engineer to execute and
deliver to Landlord and Tenant a certificate in form and substance customarily
utilized in the industry for similar purposes, which certifies to both Landlord
and Tenant that no Hazardous Materials contamination other than as disclosed by
the First Report exists. If the Engineer's report states that any Hazardous
Materials contamination other than as disclosed by the First Report exists, then
Landlord shall, within thirty (30) days after receipt of the Engineer's report,
commence, or cause the commencement of, the removal, treatment and disposal of
all such previously undisclosed hazardous wastes, hazardous substances or
hazardous materials which shall be the sole responsibility of Landlord, provided
that Landlord shall employ environmental consultants and contractors reasonably
acceptable to Tenant. Landlord shall diligently prosecute the removal, treatment
and disposal of all such Hazardous Materials and shall complete the same prior
to the Rent Commencement Date. If the removal of such contamination is not
complete by the Rent Commencement Date set forth in the Basic Lease Information,
then the Rent Commencement Date shall be postponed until completion of the
removal of such contamination, unless otherwise agreed in writing by Tenant.
Upon completion of the removal of such contamination, Landlord shall cause the
Engineer to certify, at Landlord's sole expense (including without limitation
the need for additional testing), that no Hazardous Materials contamination
other than as disclosed by the First Report exists.
(b) During the term of this Lease, Tenant shall comply with all
Environmental Laws and Environmental Permits (each as defined in Section
10.3(f) hereof) applicable to the operation or use of the Premises, will
cause all other persons occupying or using the Premises to comply with all
such Environmental Laws and Environmental Permits, and will immediately pay
or cause to be paid all costs and expenses incurred by reason of such
compliance.
(c) Tenant shall not generate, use, treat, store, handle, release or
dispose of, or permit the generation, use, treatment, storage, handling,
release or disposal of Hazardous Materials (as defined in Section 10.3(f)
hereof) on the Premises, or transport or permit the transportation of
Hazardous Materials to or from the Premises except for limited quantities
used or stored at the Premises and required in connection with Tenant's
business operations or the routine operation and maintenance of the Premises,
and then only in compliance with all applicable Environmental Laws and
Environmental Permits.
(d) Tenant agrees to defend, indemnify and hold harmless Landlord,
its members, agents, employees, contractors, successors and assigns
(collectively, the "Landlord Indemnitees") from and against all obligations
(including removal and remedial actions), losses, claims, suits, judgments,
liabilities, penalties, damages, costs and expenses (including reasonable
attorneys' and consultants' fees and expenses) of any kind or nature
whatsoever that may at any time be incurred by, imposed on or asserted
against such Landlord Indemnitees directly or indirectly
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EXHIBIT 10.16
based on, or arising or resulting from (a) the alleged (by parties other than
Landlord) or actual presence of Hazardous Materials on the Building or the Land
which is caused by Tenant's business operations in the Premises and (b) any
Environmental Claim relating to Hazardous Materials brought into or produced in
the Premises by Tenant as part of Tenant's business operations. Landlord agrees
to defend, indemnify and hold harmless Tenant, its agents, employees,
contractors, successors and assigns (collectively, the "Tenant Indemnitiees")
from and against all obligations (including removal and remedial actions),
losses, claims, suits, judgments, liabilities, penalties, damages), costs and
expenses including reasonable attorneys' and consultants' fees and expenses of
any kind or nature whatsoever that may at any time be incurred by, imposed on or
asserted against such Tenant Indemnitiees directly or indirectly based on, or
arising or resulting from (a) the actual or alleged presence of Hazardous
Materials not disclosed in the First Report and by the Second Report if not
remediated on the Building or the Land on the Rent Commencement Date or which is
caused by Landlord, and (b) any Environmental Claim relating in any way to
Landlord's operation or use of the Building or the Land unless relating to
matters disclosed in the First Report and by the Second Report if not
remediated. If Landlord and Tenant are unable to agree upon whether the presence
of any Hazardous Materials on the Land or the Building was caused by Tenant's
business operations in the Premises, or relates to Landlord's operation or use
of the Building or Land, as the case may be, then Landlord and Tenant shall
jointly employ a mutually acceptable independent engineer or engineering firm,
specializing in testing for the presence of Hazardous Materials contamination,
to determine the cause of such Hazardous Materials contamination, which
determination shall be binding on the parties. The parties shall share equally
the fees of such engineer or engineering firm. In the event it shall be
determined that the presence of such Hazardous Materials on the Land or Building
which had been alleged to have been caused by Tenant's business operations in
the Premises was in fact primarily caused by the actions of Landlord or another
tenant in the Building, then as to such particular Hazardous Materials incident,
Tenant's indemnity obligations shall cease and Landlord shall reimburse Tenant
its out-of-pocket costs and expenses incurred with respect to such incident
under this Section 10.3(d).
(e) Upon written notice from Landlord to Tenant, not later than
ninety (90) days prior to (i) the expiration or termination of this Lease; or
(ii) such other time as Tenant may vacate the Premises, whichever is earlier
(the "Termination Date"), Tenant shall employ an independent engineer or
engineering firm, which engineer or firm shall be mutually acceptable to
Landlord and Tenant, specializing in testing for the presence of Hazardous
Materials contamination (the "Engineer") and Tenant shall authorize the
Engineer to conduct all necessary tests, including without limitation testing
of all underground tanks (if any), to determine if any Hazardous Materials
contamination other than as disclosed by the First Report, and by the Second
Report if not remediated, exists on or about the Premises. The cost of the
testing described in the preceding sentence shall be paid by Tenant. Tenant
shall cause the Engineer to deliver a copy of the Engineer's report
concerning the results of tests performed pursuant hereto to Landlord and
Tenant no later than thirty (30) days prior to the Termination Date. If the
Engineer's report states that no Hazardous Materials contamination other than as
disclosed by the First Report, and by the Second Report if not remediated,
exists, then the Tenant shall cause the Engineer to execute and deliver to
Landlord and Tenant a certificate in form and substance customarily utilized in
the industry for similar purposes, which certifies to both Landlord and Tenant
that no Hazardous
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EXHIBIT 10.16
Materials contamination other than as disclosed by the First Report, and by the
Second Report if not remediated, exists. If the Engineer's report states that
any Hazardous Materials contamination other than as disclosed by the First
Report, and by the Second Report if not remediated, exists, then Tenant shall,
within thirty (30) days after receipt of the Engineer's report, commence, or
cause the commencement of, the removal, treatment and disposal of all hazardous
wastes, hazardous substances or hazardous materials not disclosed by the First
Report, and by the Second Report if not remediated, which shall be the sole
responsibility of Tenant, provided that Tenant shall employ environmental
consultants and contractors reasonably acceptable to Landlord. Tenant shall
diligently prosecute the removal, treatment and disposal of all Hazardous
Materials not disclosed by the First Report, and by the Second Report if not
remediated, and upon completion of the removal of such contamination, Tenant
shall cause the Engineer to certify, at Tenant's sole expense (including without
limitation the need for additional testing), that no Hazardous Materials
contamination other than as disclosed by the First Report, and by the Second
Report, if not remediated, exists; provided however, that unless Engineer
determines that such Hazardous Materials contamination originated primarily from
Tenant's business operations in the Premises or from Hazardous Materials brought
into or produced in the Premises by Tenant as part of Tenant's business
operations, Tenant shall have no obligation to prosecute the removal, treatment
and disposal of any such Hazardous Materials.
(f) As used herein, the following terms shall have the following
meanings: "Hazardous Materials" means (i) petroleum or petroleum products,
natural or synthetic gas; (ii) any substances defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous wastes," "restricted hazardous wastes,"
"toxic substances," "toxic pollutants," "contaminants" or "pollutants," or
words of similar import, under any applicable Environmental Law; and (iii)
any other substance exposure which is now or may hereafter be regulated by
any governmental authority. "Environmental Law" means any federal, state or
local statute, law, rule, regulation, ordinance, code, policy or rule of common
law now or hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or Hazardous Materials, including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C.
Sections 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
Sections 1801 et seq.; the Clean Water Act, 33 U.S.C. Sections 1251 et seq.; the
Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the Clean Air
Act, 42 U.S.C. Sections 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C.
Sections 300f et seq.; the Atomic Energy Act, 42 U.S.C. Sections 2011 et seq.;
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et
seq.; the Occupational Safety and Health Act, 29 U.S.C. Sections 651 et seq.
"Environmental Claims" means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations, proceedings, consent orders or
consent agreements relating in any way to any Environmental Law or any
Environmental Permit, including without limitation (i) any and all Environmental
Claims by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law and (ii) any and all Environmental Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief
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EXHIBIT 10.16
resulting from Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment. "Environmental Permits" means all
permits, approvals, identification numbers, licenses and other authorizations
required under any applicable Environmental Law.
(g) The provisions of this Section 10.3 shall survive the expiration
or sooner termination of this Lease for a period of twelve (12) months except
for the provisions of Section 10.3(d), which shall survive indefinitely.
ARTICLE 11
OBSERVANCE OF RULES AND REGULATIONS
Tenant and its servants, employees, agents, visitors, and licensees
shall observe faithfully and comply with the rules and regulations attached
to this Lease as Exhibit E ("Rules and Regulations"). Landlord shall at all
times have the right to make reasonable changes in and additions to such
Rules and Regulations. Provided that Landlord shall enforce the Rules and
Regulations in a non-discriminatory manner, any failure by Landlord to
enforce any of the Rules and Regulations now or hereafter in effect, either
against Tenant or any other tenant in the Building, shall not constitute a
waiver of any such Rules and Regulations. Landlord shall not be liable to
Tenant for the failure or refusal by any other tenant, guest, invitee,
visitor, or occupant of the Building to comply with any of the Rules and
Regulations.
ARTICLE 12
ALTERATIONS; EQUIPMENT
Section 12.1 Tenant shall not make or permit to be made to
the Premises any structural alterations, or any alterations which materially
affect Building utility systems, or alterations which cost more than
Twenty-five Thousand Dollars ($25,000.00) (collectively, "Substantial
Alterations"), without the prior written consent of Landlord both as to
whether the alterations may be made and as to how and when they will be made,
which consent shall not be unreasonably withheld, conditioned or delayed.
Any alterations shall be made at Tenant's expense, by its contractors and
subcontractors. Any Substantial Alterations shall be made in accordance with
complete plans and specifications approved in advance in writing by Landlord,
and only after Tenant: (i) has obtained all necessary permits from
governmental authorities having jurisdiction and has furnished copies thereof
to Landlord, (ii) has submitted to Landlord an architect's certificate that
such alterations will conform to all Legal Requirements, and (iii) has
complied with all other requirements reasonably imposed by Landlord,
including without limitation any requirements due to the underwriting
guidelines of Landlord's insurance carriers. At Tenant's expense, Landlord
shall join in submitting Tenant's plans for any necessary governmental
approval, if required by applicable law. Landlord's consent to any
alterations and approval of any plans and specifications constitutes approval
of no more than the concept of these alterations and not a representation or
warranty with respect to the quality or functioning of
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EXHIBIT 10.16
such alterations, plans and specifications. Tenant shall promptly provide
Landlord with "as built" drawings for all such alterations not requiring
Landlord's prior written consent.
Section 12.2 In the event Landlord approves Tenant alterations pursuant
to the terms of this Article 12, or in the event such approval is not required,
Tenant shall be and is solely responsible for such alterations and for the
proper integration thereof with the Building, the Building's systems and
existing conditions. All alterations shall be made at Tenant's expense by
contractors which have been approved by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed. All such construction,
alterations, and maintenance work done by or for Tenant shall (i) be performed
in a such manner as to maintain harmonious labor relations, (ii) not alter the
exterior appearance of the Building or the common and public areas thereof,
(iii) not affect the structure or the safety of the Building, (iv) comply with
all building, safety, fire, plumbing, electrical, and other codes and
governmental and insurance requirements, (v) not result in any usage more than
ten percent (10%) in excess of building standard of water, electricity, gas,
heating, ventilating, or air conditioning (either during or after such work),
unless prior written arrangements reasonably satisfactory to Landlord are made
with respect thereto, (vi) be completed promptly and in a good and workerlike
manner, (vii) be performed in compliance with Article 13 hereof, and (viii) not
unreasonably interfere with the use and occupancy of the Building by any other
tenant or occupant.
Section 12.3 Following completion of any Substantial Alterations, at
Landlord's request, Tenant (i) shall deliver to Landlord a certificate signed by
Tenant stating that such alterations have been completed in accordance with the
plans and specifications previously delivered to Landlord and (ii) either shall
deliver to Landlord a complete set of "as built" plans showing such alterations
or shall reimburse Landlord for any expense incurred by Landlord in causing the
Building plans to be modified to reflect the alterations. Tenant hereby agrees
to indemnify and hold Landlord harmless against and from any and all claims,
damages, costs, and fines arising out of or connected with such alterations.
Section 12.4 Tenant shall take all necessary steps to insure
that no mechanic's or materialmen's liens are filed against the Premises, the
Building or the Land as a result of any alterations made by the Tenant. If
any mechanic's lien is filed, Tenant shall discharge the lien within ten (10)
days after receipt of written notice thereof, at Tenant's expense, by paying
off or bonding the lien.
Section 12.5 If any Substantial Alterations are made without
the prior written consent of Landlord, or which do not conform to plans and
specifications approved by Landlord or to other conditions imposed by
Landlord pursuant to this Article, Landlord may, in its sole discretion,
correct or remove such alterations at Tenant's expense.
Section 12.6 No alterations or Project Upgrades (as defined
in Exhibit D), or installed by or for Tenant in or to the Premises shall be
removed by Tenant during the Term except in accordance with Section 20.2.
Section 12.7 Business machines and equipment belonging to
Tenant, which cause noise or vibration that may be transmitted to any part of
the Building to such a degree as to be
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EXHIBIT 10.16
objectionable to Landlord or to any tenant or occupant of the Building, shall be
installed and maintained by Tenant at Tenant's expense on devices that eliminate
the noise and vibration. Tenant shall not place any load upon the floor of the
Premises which exceeds the per square foot load the floor was designed to carry.
ARTICLE 13
LIENS
Tenant shall keep the Premises and the Building free from any liens
arising from any work performed, materials furnished, or obligations incurred
by or at the request of Tenant. All persons either contracting with Tenant
or furnishing or rendering labor and materials to Tenant shall be notified in
writing by Tenant that they must look only to Tenant for payment, and a copy
of every such writing shall be promptly provided by Tenant to Landlord upon
Landlord's request. Nothing contained in this Lease shall be construed as
Landlord's consent to any contractor, subcontractor, laborer, or materialman
for the performance of any labor or the furnishing of any materials for any
specific improvement, alteration, or repair of or to the Premises or the
Building, nor as giving Tenant any right to contract for, or permit the
performance of, any services or the furnishing of any materials that would
result in any liens against the Premises or the Building. If any lien is
filed against the Premises or Tenant's leasehold interest therein or if any
lien is filed against the Building which arises out of any purported act or
agreement of Tenant, Tenant shall discharge the same within ten (10) days
after receipt of written notice thereof by payment, filing of the bond
required by law, or otherwise. If Tenant fails to discharge such lien within
such period, then, in addition to any other right or remedy of Landlord,
Landlord may, at its election, discharge the lien by paying the amount
claimed to be due, by obtaining the discharge by deposit with a court or a
title company, or by bonding. Tenant shall pay on demand any amount paid by
Landlord for the discharge or satisfaction of any such lien and all
reasonable attorneys' fees and other reasonable costs and expenses of
Landlord incurred in defending any such action or in obtaining the discharge
of such lien, together with all necessary disbursements in connection
therewith.
ARTICLE 14
REPAIRS; DAMAGE BY TENANT
Section 14.1 Except for those parts of the Premises which
Landlord is obligated to maintain under Section 14.2, Tenant shall keep the
Premises and every part thereof in good condition and repair at all times
during the Term and at Tenant's sole cost and expense. If Tenant fails to
commence such repairs within fifteen (15) days after receipt of written
notice of the necessity therefor from Landlord, and thereafter diligently
pursue the same to completion, Landlord, at its option, may make such
repairs, and Tenant shall pay Landlord on demand Landlord's actual costs in
making such repairs plus fifteen percent (15%) for Landlord's overhead.
Notwithstanding the foregoing, Tenant shall have no obligation to maintain or
repair any portion of the Building which is not part of the Premises;
provided, however, that Tenant
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EXHIBIT 10.16
shall reimburse Landlord for any actual costs incurred for maintenance or repair
of any such portion of the Building if such maintenance or repair is
necessitated by the acts or omissions of Tenant plus fifteen percent (15%) for
Landlord's overhead. At the end of the Term, Tenant shall surrender to Landlord
the Premises and all alterations, additions, and improvements thereto subject to
the provisions of Article 20 hereof. Landlord has no obligation and has made no
promise to alter, remodel, improve, repair, redecorate, or paint the Premises or
any part thereof except as specifically set forth in this Lease, including the
Exhibits hereto. No representations respecting the condition of the Premises or
the Building have been made by Landlord to Tenant except as specifically set
forth in this Lease, including the Exhibits hereto.
Section 14.2
(a) Subject to the other provisions of this Lease imposing
obligations in this respect upon Tenant and subject to the provisions of
Articles 16 and 17 hereof, Landlord shall repair, replace, and maintain in
good condition (i) the external and structural parts of the Building,
including the roof and the foundations, (ii) all Common Areas, and (iii) the
HVAC, mechanical, electrical, and plumbing systems of the Building, exclusive
of systems, if any, specially installed by or on behalf of Tenant.
(b) Nothing contained in this Section 14.2 shall preclude Landlord
from including in Basic Costs (pursuant to Sections 6.2 and 6.3) any of the
costs and expenses referred to herein to the extent the same are within the
definition of Basic Costs.
(c) If Landlord refuses or neglects to promptly commence and
complete repairs or maintenance to the Building necessary to satisfy the
provisions of this Section 14.2, Tenant may, after fifteen (15) days written
notice to Landlord (or such longer period as may be reasonably required to
complete such repairs, provided that Landlord commences the same promptly
after receipt of Tenant's notice and thereafter diligently proceeds with the
same), but shall not be required to, make and complete such repairs or
maintenance and Landlord shall pay the cost therefor to Tenant upon demand.
Section 14.3 Except as otherwise expressly provided in this
Lease, all injury, breakage and damage to the Land, the Building or the
Premises, caused by any act or omission of Tenant shall be repaired by and at
the sole expense of Tenant, except Landlord shall have the right, at its
option, to make any such repairs to any portions of the Building except the
third (3rd) floor of the Premises, and to charge Tenant for all costs and
expenses incurred in connection therewith as additional Rental payable within
ten (10) days after the rendering of a bill therefor. Tenant shall notify
Landlord promptly of any injury, breakage or damage to the Land, the
Building, or the Premises caused by Tenant.
ARTICLE 15
INSURANCE
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EXHIBIT 10.16
Section 15.1 During the Term, Tenant, at its sole cost and expense,
shall obtain and keep in force the following insurance:
(a) All-Risk (Special Perils) Insurance upon property of every
description and kind located in the Premises and owned by Tenant or for which
Tenant is legally liable or which is installed by or on behalf of Tenant,
including, without limitation, furniture, fittings, installations,
furnishings, movable trade fixtures, and personal property, but excluding
Project Upgrades (as defined in Exhibit D) and alterations installed by
Tenant pursuant to Article 12, in an amount equal to the full replacement
cost thereof.. Landlord will not be required to carry insurance of any kind
on any Tenant's fixtures, equipment, or improvements (other than the Project
Upgrades and alterations installed by Tenant pursuant to Article 12) under
this Lease, and Landlord shall not be obligated to repair any damage thereto
or replace the same.
(b) Commercial general liability insurance coverage, including
personal injury, bodily injury, property damage, operations hazard,
contractual liability coverage, in limits not less than $3,000,000 inclusive;
limits may be purchased in a combination of commercial general liability and
excess liability and/or umbrella liability policies. All such insurance
policies shall name Tenant as named insured thereunder and shall name
Landlord and, if requested by Landlord, Landlord's mortgagees and/or ground
or primary lessors as additional insureds thereunder, all as their respective
interests may appear.
(c) Worker's Compensation and Employer's Liability insurance as
required by law and business interruption insurance, all in form and amount
satisfactory to Landlord.
(d) Any other form or forms of insurance that Landlord or Landlord's
mortgagee, may reasonably require from time to time in form, in amounts, and
for insurance risks against which a prudent tenant of comparable size and in
a comparable business would protect itself including, without limitation,
biotechnology professional liability insurance and pollution liability
insurance coverages.
Section 15.2 All insurance policies required to be maintained by
Tenant under this Lease must: (i) be issued by insurance companies approved by
Landlord, in its reasonable discretion; (ii) be in form and have content
satisfactory to Landlord; (iii) be written as primary policy coverage; (iv)
contain an express waiver of any right of subrogation in the property and
general liability policies, by the insurance company against Landlord, the
Mortgagees and the Landlord's and the Mortgagees' employees and agents; (v)
contain an undertaking by the insurers to notify Landlord and Landlord's
mortgagees (and, if applicable, Landlord's ground or primary lessors) in
writing, not less than fifteen (15) days before any material adverse change,
reduction in coverage, cancellation, non-renewal or other termination thereof.
Tenant shall deliver to Landlord certificates of each such policy and any
renewal policy, together with evidence of payment of all applicable premiums, at
least ten (10) days before the Rent Commencement Date and at least ten (10) days
before the renewal of any policies.
Section 15.3 During the Term, Landlord shall insure the Building,
including the Project Upgrades and alterations installed by Tenant pursuant to
Article 12 (but excluding any property Tenant is obligated to insure under
Section 15.1 hereof), with a reputable insurance company
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EXHIBIT 10.16
authorized to do business in the State of Maryland against damage with All-Risk
(Special Perils) insurance in an amount not less than 90% of the then
replacement cost and commercial general liability insurance with limits of not
less than $3,000,000; limits may be purchased in a combination of commercial
general liability and excess liability and/or umbrella liability policies.
Landlord may, but shall not be obligated to, obtain and carry any other form or
forms of insurance as it or Landlord's mortgagees may reasonably determine
advisable. All insurance policies required to be maintained by Landlord under
this Lease must (i) name Tenant as an additional insured; (ii) be written as
primary policy coverage; (iii) contain an express waiver of any right of
subrogation in the property and general liability policies, by the insurance
company against Tenant and its employees and agents; and (iv) contain an
undertaking by the insurers to notify Tenant in writing, not less than fifteen
(15) days before any material adverse change, reduction in coverage,
cancellation, non-renewal or other termination thereof. Landlord shall deliver
to Tenant certificates of each such policy and any renewal policy, together with
evidence of payment of all applicable premiums, at least ten (10) days before
the Rent Commencement Date and at least ten (10) days before the renewal of any
policies. Notwithstanding any contribution by Tenant to the cost of insurance
premiums as provided herein, Tenant acknowledges that it has no right to receive
any proceeds from any insurance policies carried by Landlord, except as follows.
In the event that this Lease is terminated pursuant to Article 16, then Tenant
shall be entitled to receive, from Landlord's insurance proceeds, an amount
equal to the replacement cost of the Project Upgrades (as defined in Exhibit D)
in excess of Ten Dollars ($10.00) per square foot of Rentable Area of the
Premises, and the replacement cost of any alterations made by Tenant to the
Premises. This provision shall survive the expiration or sooner termination of
this Lease pursuant to Article 16.
Section 15.4 If Tenant's occupancy or business in or on the Premises,
whether or not Landlord has consented to the same, results in any increase in
premiums for the insurance carried by Landlord with respect to the Building,
Tenant shall pay any such increase in premiums as additional Rental within ten
(10) days after being billed therefor by Landlord, provided that all other
building tenants are also required to pay any insurance premium increases
resulting from their use of their premises. In determining whether increased
premiums are a result of Tenant's use of the Premises, a schedule issued by the
organization computing the insurance rate on the Building or the Project
Upgrades showing the various components of such rate shall be conclusive
evidence of the several items and charges which make up such increased premiums.
Tenant shall promptly comply with all reasonable requirements of the insurance
authority or any present or future insurer relating to the Premises. If any of
Landlord's insurance policies shall be cancelled or cancellation shall be
threatened (in writing by the insurance company) or the coverage thereunder
reduced or threatened (in writing by the insurance company) to be reduced in any
way because of the use of the Premises or any part thereof by Tenant or any
assignee or subtenant of Tenant or by anyone Tenant permits on the Premises and
if Tenant fails to remedy the condition giving rise to such cancellation,
threatened (in writing by the insurance company) cancellation, reduction of
coverage, or threatened (in writing by the insurance company) reduction of
coverage within 48 hours after notice thereof, Landlord may, at its option,
enter upon the Premises and attempt to remedy such condition, and Tenant shall
promptly pay the cost thereof to Landlord as additional Rental; provided,
however, that in lieu of remedying such condition, Tenant may, at its option,
obtain another insurance policy for Landlord from an
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EXHIBIT 10.16
insurance company reasonably acceptable to Landlord (the premiums for which
shall be paid by Landlord and included in Basic Costs), so long as Tenant
reimburses Landlord directly for any premiums for such policy in excess of the
premiums for Landlord's cancelled policy. In the event Tenant is unable to
obtain replacement insurance at least ten (10) days prior to the cancellation or
reduction of Landlord's insurance, then in that event Tenant will immediately
cease and desist from keeping, using, selling, or offering for sale in or upon
the Premises any article which may be prohibited by any insurance policy in
force covering the Building and the Project Upgrades. Landlord shall not be
liable for any damage or injury caused to any property of Tenant or of others
located on the Premises resulting from such entry, unless such damage or injury
is caused by the willful or wanton acts or omissions of Landlord, its agents,
employees or contractors. If Landlord is unable, or elects not, to remedy such
condition or if Tenant fails to maintain any insurance required by this Lease,
then in either such event Landlord shall have all of the remedies provided for
in this Lease in the event of a default by Tenant.
Section 15.5 Landlord and Tenant shall not be liable or responsible for,
and each hereby releases the other, the partners, employees, officers, directors
and agents of the other from any and all liability and responsibility to the
other, or any person claiming by, through or under the Landlord or Tenant, by
way of subrogation or otherwise, any damage or loss to their respective property
due to hazards covered (or which should be covered) by policies of insurance
obtained (or which should be or have been obtained) pursuant to this Lease to
the extent of the damage or loss covered (or which should have been covered)
thereby, assuming that any deductible shall be deemed to be insurance coverage.
ARTICLE 16
DAMAGE BY FIRE OR OTHER CASUALTY
Section 16.1 Tenant shall immediately notify Landlord of any
damage by any casualty to the Premises or Building. If the Building or the
Premises shall be damaged by any casualty, and if this Lease shall not have
been terminated pursuant to this Article 16, Landlord shall repair said
damage and restore and rebuild the Building and/or the Premises (including
the Project Upgrades, as defined in Exhibit D) as soon as reasonably
practicable after said damage occurs, subject to Landlord's receipt of
available insurance proceeds and the consent of any mortgagee of Landlord to
the application of such insurance proceeds to the restoration of such damage,
and the Rental payable hereunder shall be abated from the date of such
casualty until said damage has been restored in proportion to the extent that
the Premises are rendered unusable for the normal conduct of the business
then conducted on the Premises. Landlord covenants to use best efforts to
obtain the agreement of its mortgagee from time to time, such agreement to be
contained in the loan documents evidencing and securing its loan, to allow
the application of insurance proceeds to the restoration of Promises or
Building in accordance with the terms hereof, subject however, to such
mortgagees conditions and requirements for the disbursement of proceeds,
including, without limitation, the implementation of customary construction,
and disbursement procedures.
Section 16.2 [INTENTIONALLY OMITTED]
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EXHIBIT 10.16
Section 16.3 If (i) the Building and/or the Premises shall
be so damaged by casualty to such extent that the Premises are rendered
unusable for the normal conduct of Tenant's business then conducted on the
Premises and the Landlord estimates that the Building and/or Premises
(including the Project Upgrades) cannot be substantially repaired within
eighteen (18) months after the date of the casualty or (ii) Landlord, despite
its best efforts is unable , within ninety (90) days after the date of the
casualty, to obtain the use of the insurance proceeds for restoration of
damage and the consent of its mortgagee, (and Landlord does not nevertheless
agree to fully repair and restore the Building and/or the Premises), Tenant
or Landlord may terminate this Lease by notice to the other given within
thirty (30) days of Tenant's receipt of a copy of Landlord's notice and this
Lease shall terminate; provided, however, that the provisions of this Lease
which are designated to cover matters of termination and the period
thereafter shall survive the termination of this Lease. Additionally, if the
repairs which are estimated to be substantially completed by the end of such
eighteen (18) months are in fact not completed within eighteen (18) months,
then Tenant or Landlord may terminate this Lease from and after the end of
such eighteen (18) months period by written notice to the other within thirty
(30) days after the expiration of such eighteen (18) month period. The
foregoing and notwithstanding, in the event Landlord or Tenant exercises its
right of termination pursuant to the terms of this Section 16.3, Tenant shall
have the one time right, exercisable by written notice to Landlord within
thirty (30) days after receipt of Landlord or Tenant's notice of termination,
to purchase Land and the Building at a purchase price equal to the greater of
(i) the fair market value of the Land and the Building as determined in
accordance with the appraisal procedure set forth in Section 2.4(c) hereof,
for the determination of fair market rental rate and modifying such
procedures to apply to the determination of the fair market value of the Land
and the Building; or (ii) the outstanding principal balance of any loan that
encumbers the Premises together with any accrued unpaid interest, penalties,
costs and expenses due and owing to such mortgagee as of the date of
settlement of such purchase. Landlord shall use commercially reasonable
efforts to cause its mortgagee from time to time to provide Tenant with
notice of any material default, and Landlord shall provide Tenant with notice
of any material default by Landlord under its mortgage loan documents.
Settlement under such purchase option, shall be consummated within thirty
(30) days after determination of the fair market value of the land and the
building, the parties shall prorate all customary adjustment as of the date
of settlement; provided that Tenant shall be responsible for the payment of
100% of any State and/or County transfer and recordation taxes applicable to
such sale and title shall be conveyed without encumbrances by special
warranty deed. If the Purchase Price is the outstanding balance of any loan
that encumbers the Premises, Landlord at settlement shall assign to Tenant
all insurance proceeds payable in connection with such casualty to the extent
of the positive difference between the fair market value determination above
and the balance paid to Landlord's mortgagee, with any excess proceeds being
paid to Landlord. In the event Tenant fails to timely provide written notice
of its exercise of such purchase option or if settlement is not consummated
within the aforesaid thirty (30) day period, time being of the essence, this
purchase option shall lapse and shall be of no further force and effect and
this Lease shall be deemed terminated as otherwise provided in this Section
16.3.
Section 16.4 If Landlord is obligated to repair the Premises
or Building after any casualty pursuant to this Article 16, following receipt
of available insurance proceeds and any required mortgagee approval Landlord
shall diligently commence and continuously prosecute
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EXHIBIT 10.16
such repair to completion and shall provide Tenant with monthly progress reports
concerning such repairs.
Section 16.5 If the Building or the Premises, or any substantial
portion thereof, is substantially destroyed by fire or other cause at any time
during the last twelve (12) months of the Term (as the same may have been
extended), either Landlord or Tenant may terminate this Lease upon written
notice to the other given within sixty (60) days after the date of such
destruction; provided, however, that those provisions of this Lease which are
designated to cover matters of termination and the period thereafter shall
survive the termination hereof. For purposes of this Section 16.5, the Building
or Premises shall be deemed "substantially destroyed" if at least twenty-five
percent (25%) of the Rentable Area of the Building or the Rentable Area of the
Premises, as the case may be, is rendered unusable by such fire or other cause.
Section 16.6 Except for any abatement of Rental expressly
set forth in this Article 16, no damages, compensation, or claim shall be
payable by Landlord for inconvenience, loss of business, or annoyance arising
from any repair or restoration of any portion of the Premises, the Project
Upgrades, or the Building. Landlord shall use reasonable efforts to have
such repairs made promptly so as not to unnecessarily interfere with Tenant's
occupancy.
Section 16.7 The provisions of this Article shall be
considered an express agreement governing any case of damage or destruction
of the Building, the Project Upgrades or the Premises by fire or other
casualty.
Section 16.8 In the event of the termination of this Lease
pursuant to the provisions of Sections 16.2, 16.3, or 16.5, this Lease, the
Term, and the estate hereby granted shall expire as of the date of such
termination in the same manner and with the same effect as if it were the
date set for the normal expiration of the Term, and Rental shall be abated as
of the date of termination.
ARTICLE 17
CONDEMNATION
Section 17.1 In the event the whole or substantially the whole of the
Building and/or the Premises is taken or condemned for any public purpose, this
Lease shall terminate as of the date of such taking; provided, however, that
those provisions of this Lease which are designated to cover matters of
termination and the period thereafter shall survive the termination hereof.
Section 17.2 In the event that more than twenty-five percent (25%) of
the Building shall be taken or condemned for any public purpose (whether or not
such taking includes any portion of the Premises), which taking, in Landlord's
reasonable judgment, shall interfere materially with Landlord's use and
operation of the Building or is such that Landlord reasonably determines that
the Building cannot be restored to usefulness in an economically feasible
manner, then Landlord shall have the option to terminate this Lease effective as
of the date specified by Landlord in its notice of termination; provided,
however, that those provisions of this Lease which are
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EXHIBIT 10.16
designated to cover matters of termination and the period thereafter shall
survive the termination hereof. In the event that more than twenty-five
percent (25%) of the Premises shall be taken or condemned for any public
purpose, which taking, in Tenant's reasonable judgment, shall interfere
materially with Tenant's use of the Premises for its business operations,
then Tenant shall have the option to terminate this Lease effective as of the
date specified by Tenant in its notice of termination; provided however, that
those provisions of this Lease which are designated to cover matters of
termination and the period thereafter shall survive the termination hereof.
Section 17.3 In the event that a portion, but less than
substantially the whole, of the Premises should be taken or condemned for any
public purpose, then this Lease shall terminate as of the date of such taking
as to the portion of the Premises so taken, and, unless Landlord or Tenant
exercises its option to terminate this Lease pursuant to Section 17.2, this
Lease shall remain in full force and effect as to the remainder of the
Premises. In such event, the Annual Base Rental attributable to the Premises
will be diminished by an amount representing the part of such amount properly
applicable to the portion of the Premises so taken. Further, in such event,
Tenant's Proportionate Share shall be recomputed based upon the remaining
Rentable Area in the Premises and in the Building.
Section 17.4 In the event of the termination of this Lease
pursuant to the provisions of Sections 17.1, 17.2, or 17.3, this Lease, the
Term, and the estate hereby granted shall expire as of the date of such
termination in the same manner and with the same effect as if that were the
date set for the normal expiration of the Term, and Rental shall be abated as
of the date of termination. The provisions of this Section 17.4 shall apply
in the same manner to any partial termination of this Lease pursuant to the
provisions of this Article 17.
Section 17.5 If Landlord is obligated to repair the Premises
or the Building after any taking or condemnation pursuant to this Article 17,
subject to receipt of adequate condemnation proceeds, Landlord shall
diligently and continuously prosecute such repair to completion.
Section 17.6 Except as otherwise provided in this Section
17.6 and Section 17.7 below, Landlord shall be entitled to receive the entire
award in any condemnation proceeding or action for taking, without deduction
therefrom for any estate vested in Tenant by this Lease, provided that
nothing herein contained shall prohibit Tenant from seeking severance damages
or moving expenses or the value of its fixtures in the Premises, so long as
such awards do not in any manner reduce the award payable to Landlord.
Landlord shall pay to Tenant, from Landlord's award, the portion of such
award which is attributable to the unamortized value (based upon
straight-line amortization over fifteen (15) years), if any, of the Project
Upgrades (as defined in Exhibit D) in excess of Ten Dollars ($10.00) per
square foot of Rentable Area of the Premises, and to the unamortized value
(based upon straight-line amortization over a life equal to the period from
the date such alterations were made to the end of the then current Term), if
any, of any alterations made by Tenant to the Premises. This provision shall
survive the expiration or sooner termination of this Lease.
Section 17.7 If the temporary use or occupancy of all or any
part of the Premises shall be condemned or taken for any public or
quasi-public use during the Term, this Lease shall be
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EXHIBIT 10.16
and remain unaffected by such condemnation or taking, and Tenant shall
continue to pay in full the Rental payable hereunder for any period during
such temporary use or occupancy during the Term (less any amount paid to
Landlord from any escrow fund described in the last sentence of this Section
17.7). In the event of any such condemnation or taking, Tenant shall be
entitled to appear, claim, prove, and receive the portion of the award for
such taking that represents compensation for use or occupancy of the Premises
during the Term, and Landlord shall be entitled to appear, claim, prove, and
receive the portions of the award that represent the cost of restoration of
the Premises and the use or occupancy of the Premises after the end of the
Term. Any award to which Tenant is entitled under this Section 17.7 shall be
deposited in escrow with a bank or other institution approved by Landlord and
Tenant and held as security for the performance of all obligations of Tenant
hereunder. Except as modified by this Section 17.7, such deposit shall be
treated as a Security Deposit hereunder to which the provisions of Article 25
hereof shall apply. Such deposit shall be invested in an interest-bearing
account, money market fund, or other liquid investment approved by Landlord
and Tenant, and any interest or earnings thereon shall be paid to Tenant so
long as Tenant is not in default under this Lease. Such escrow fund shall be
disbursed in equal monthly installments over the period of months during the
Term which has been taken by the condemning authority: first, to Landlord
towards the payment of any Rental due for such month and the excess, if any,
to Tenant.
ARTICLE 18
ASSIGNMENT AND SUBLETTING
Section 18.1 Tenant shall not assign this Lease, or sublease
or transfer all or any portion of the Premises without the prior written
consent of Landlord, which consent shall not be unreasonably withheld as to
subletting or assignment; provided, however, that Landlord shall not be
deemed to have unreasonably withheld its consent to a proposed assignment,
sublease or transfer of any or all of the Premises if such consent is
withheld because: (i) Tenant is then in default of this Lease, following
applicable notice and the expiration of applicable cure periods, or an event
has occurred which, with the giving of notice or passage of time, or both,
would constitute a default hereunder (unless such occurrence shall be cured
prior to the commencement date of the proposed sublease or assignment); or
(ii) any notice of termination of this Lease or termination of Tenant's
rights under this Lease shall have been validly given; or (iii)(a) either the
portion of the Premises which Tenant proposed to sublease, or the remaining
portion of the Premises, or the means of ingress and egress to either the
portion of the Premises which Tenant proposed to sublease or the remaining
portion of the Premises, or (iii)(b) the proposed use of the Premises or any
portion thereof by the proposed assignee or subtenant will violate any Legal
Requirement or would not conform with the use provisions set forth in Article
9 of this Lease; or (iv) in the reasonable judgment of Landlord, the proposed
assignee or subtenant is of a character or reputation or is engaged in a
business which would be harmful to the image and reputation of the Building
or Landlord, or the proposed assignee is not financially capable of
performing its obligations under the terms of this Lease; or (v) the proposed
assignee or subtenant is a governmental entity (or subdivision or agency
thereof) or is an occupant of the Building for whom Landlord has available
for lease space similar in size and otherwise reasonably
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EXHIBIT 10.16
comparable to that which Tenant is proposing to assign or sublease to such
occupant of the Building and such occupant of the Building would accept the
space being offered by Landlord if the space which Tenant is offering were
not available; or (vi) notwithstanding Tenant's continuing primary liability
under this Lease, as set forth in this Section 18.1, the assignee fails to
assume all of the obligations of Tenant under this Lease, or the sublessee
fails to agree to be subject to all the terms and conditions of this Lease.
Tenant understands and acknowledges that the foregoing are merely examples of
reasons for which Landlord may withhold its consent and shall not be deemed
exclusive of any permitted reasons for Landlord to withhold its consent,
whether similar or dissimilar to the foregoing examples. Tenant agrees that
all advertising by Tenant or on Tenant's behalf with respect to the
assignment of this Lease or the subletting of all or any part of the Premises
must be approved in writing by Landlord prior to publication. In the event
of any such assignment or subletting consented to by Landlord or any
assignment, sublease or transfer not requiring Landlord's consent, Tenant
shall remain fully and primarily liable for the payment of rent due under
this Lease and for the performance of all the covenants, agreements, terms,
conditions and provisions under this Lease.
Section 18.2 The term "assign" or "assignment" shall mean and refer to:
(a) an assignment by Tenant of its rights and obligations under this
Lease;
(b) an imposition (whether or not consensual) of a lien, mortgage or
encumbrance upon Tenant's interest in this Lease;
(c) an arrangement which allows the use and occupancy of the
Premises by any person or entity other than Tenant;
Section 18.3 In addition to the restrictions set forth in
Section 18.1, Tenant may not assign this Lease, nor sublet or transfer (or
permit occupancy or use of) all or any portion of the Premises for a term of
more than four (4) years or for the balance of the final Renewal Period if
less than four (4) years, without giving Landlord thirty (30) days prior
written notice thereof, which notice shall contain in reasonably sufficient
detail the terms on which Tenant seeks to assign or sublet. For thirty (30)
days following receipt of said notice, Landlord shall have the right,
exercisable by sending notice to Tenant, to recapture from Tenant for the
balance of the Term of this Lease (i) all of the Premises in the event Tenant
notified Landlord of its desire to assign this Lease, or (ii) so much of the
Premises as Tenant intends to sublet or transfer in the event Tenant notified
Landlord of its desire to sublet or transfer the Premises or permit another
to make use thereof. In the event Landlord does not exercise the aforesaid
right within said thirty (30) days, Tenant may attempt for a period of one
hundred eighty (180) days from the last day of said thirty (30)-day period to
sublet or transfer or permit use of this Lease or such space on the terms set
forth in the aforementioned notice and in accordance with the terms of
Sections 18.1 and 18.4. Upon the termination of said one hundred eighty
(180)-day period, Tenant may not assign this Lease, nor sublet or transfer
(or permit occupancy or use of) all or any portion of the Premises, except in
accordance with the terms of this Section 18.3, including Tenant's notice
obligation and Landlord's right of recapture. In the event that Tenant
defaults hereunder, Tenant
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EXHIBIT 10.16
hereby assigns to Landlord the Rental due from any assignee or subtenant and
hereby authorizes each such party to pay said Rental to Landlord.
Section 18.4 In addition to the requirements set forth in
Section 18.3, no subletting or transfer or assignment of all or a portion of
the Premises requiring Landlord's consent shall be effective unless and until
Landlord shall have received, at least thirty (30) days prior to the proposed
commencement date of such subletting, transfer or assignment (i) a written
request from Tenant for the proposed subletting, transfer or assignment, (ii)
full and complete information concerning the identity and business activities
of the proposed sublessee or assignee, (iii) such financial information
concerning the proposed sublessee or assignee as Landlord shall reasonably
request after notification by Tenant of the proposed subletting or transfer
or assignment, and (iv) a copy of the proposed sublease or assignment, which
shall be in form and substance acceptable to Landlord in its reasonable
discretion. No consent by Landlord to a subletting or transfer or assignment
shall be effective unless such consent shall be in writing. Landlord agrees
to respond to any request by Tenant for subletting or assignment within
fifteen (15) days following receipt of a request therefor, which period may
be extended by Landlord to twenty (20) days if Landlord is not reasonably
able to respond within the original fifteen (15)-day period and so notifies
Tenant within such original fifteen (15)-day period. A failure by Landlord
to respond to any such request within such fifteen (15) or, if extended,
twenty (20) day period shall be deemed written consent by Landlord to such
request for subletting, transfer or assignment, as the case may be.
Section 18.5 In the event Tenant assigns or transfers or
sublets all or a portion of the Premises to a third party, then (i) fifty
percent (50%) of any "Excess Rents" (hereinafter defined) that are paid by
such third party for the right to occupy the Premises shall be paid by Tenant
to Landlord on a monthly basis as additional Rental and (ii) Tenant shall be
responsible for all reasonable costs and expenses, including reasonable
attorneys' fees, incurred by Landlord in connection with any proposed or
purported assignment or sublease. As used herein, the term "Excess Rents"
means the rental amounts paid by the assignee or subtenant for the right to
occupy the Premises, reduced by (i) the Rental then in effect for the portion
of the Premises assigned or sublet, (ii) the aforesaid Landlord expenses and,
(iii) the reasonable expenses incurred by Tenant in connection with such
assignment or subletting, including without limitation, leasing commissions,
attorneys' fees and costs of improving the assigned or sublet space for the
assignee or subtenant, the portion of the cost of any alterations or
improvements made, at Tenant's expense, to the portion of the Premises
assigned or sublet, which is attributable to the period of the assignee's or
Subtenant's occupancy. With respect to an assignment "rental amounts paid by
the assignee for the right to occupy the Premises" shall mean any rental
amounts plus (whether in addition thereto or in substitution thereof) any and
all consideration received for the assignment of this Lease (but not for any
personal property or other assets which may be transferred by Tenant to the
assignee). The failure of Tenant to remit fifty percent (50%) of any such
Excess Rents to Landlord shall be a default hereunder.
Section 18.6 The consent by Landlord to any assignment or
subletting shall neither be construed as a waiver release of Tenant from any
covenant or obligation of Tenant under this Lease, nor as relieving Tenant
from giving Landlord the aforesaid thirty (30) days notice of, or
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EXHIBIT 10.16
from obtaining the consent of Landlord to, any further assignment or
subletting. The collection or acceptance of Rental from any such assignee or
subtenant shall not constitute a waiver or release of Tenant from any
covenant or obligation of Tenant under this Lease, except as expressly agreed
by Landlord in writing.
Section 18.7 Landlord (and any successor or affiliate of
Landlord) may freely sell, assign or transfer all or any portion of its
interest in this Lease or the Premises, the Building or the Land and, in the
event of any such sale, assignment or transfer, shall be relieved of any and
all obligations under this Lease from and after the date of the sale,
assignment or transfer, provided that the purchaser, assignee or transferee
agrees to assume the obligations of Landlord hereunder. From and after said
date, Tenant shall be bound to such purchaser, assignee or other transferee,
as the case may be, as though the latter had been the original Landlord
hereunder.
Section 18.8 Notwithstanding anything to the contrary
contained herein, and without prejudice to Landlord's right to require a
written assumption from each assignee, any person or entity to whom this
Lease is assigned including, without limitation, assignees pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Paragraph 101 et seq. (the
"Bankruptcy Code") shall automatically be deemed, by acceptance of such
assignment or by taking actual or constructive possession of the Premises,
to have assumed all obligations of Tenant arising under this Lease effective
as of the earlier of the date of such assignment or the date on which the
assignee obtains possession of the Premises. In the event this Lease is
assigned to any person or entity pursuant to the provisions of the Bankruptcy
Code, any and all monies or other consideration payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord and shall remain the exclusive property of Landlord and not
constitute the property of Tenant or Tenant's estate within the meaning of
the Bankruptcy Code. In the event of any default described in subsection
23(a)(iv) below, in order to provide Landlord with the assurances
contemplated by the Bankruptcy Code, in connection with any assignment and
assumption of this Lease Tenant must fulfill the following obligations, in
addition to any other reasonable obligations that Landlord may require,
before any assumption of this Lease is effective: (i) all defaults under
subsection (a) of Section 23 of this Lease must be cured within ten (10) days
after the date of assumption; (ii) all other defaults under Section 28 of
this Lease other than under subsection (a)(iv) of Section 28 must be cured
within fifteen (15) days after the date of assumption; (iii) all actual
monetary losses incurred by Landlord (including, but not limited to,
reasonable attorneys' fees) must be paid to Landlord within ten (10) days
after the date of assumption; and (iv) Landlord must receive within ten (10)
days after the date of assumption a security deposit in the amount of six (6)
months Annual Base Rental (using the Annual Base Rental in effect for the
first full month immediately following the assumption) and an advance
prepayment of Annual Base Rental in the amount of three (3) months Annual
Base Rental (using the Annual Base Rental in effect for the first full month
immediately following the assumption), both sums to be held by Landlord and
deemed to be rent under this Lease for the purposes of the Bankruptcy Code as
amended and from time to time in effect. In the event this Lease is assumed
in accordance with the requirements of the Bankruptcy Code and this Lease,
and is subsequently assigned, then, in addition to any other reasonable
obligations that Landlord may require and in order to provide Landlord with
the assurances contemplated by the Bankruptcy Code, Landlord shall be
provided with (i) a financial statement of the proposed
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EXHIBIT 10.16
assignee prepared in accordance with generally accepted accounting principles
consistently applied, though on a cash basis, which reveals a net worth in an
amount sufficient, in Landlord's reasonable judgment, to assure the future
performance by the proposed assignee of Tenant's obligations under this Lease;
or (ii) a written guaranty by one or more guarantors with financial ability
sufficient to assure the future performance of Tenant's obligations under this
Lease, such guaranty to be in form and content satisfactory to Landlord and to
cover the performance of all of Tenant's obligations under this Lease.
Section 18.9 Notwithstanding any other provision of this
Article 18 to the contrary, (i) Tenant shall have the right to assign this
Lease, or sublease or transfer all or any portion of the Premises to an
"Affiliate" provided none of the conditions set forth in Section 18.1 (i),
(ii), (iii)(b) and (vi) then exist (as used herein, "Affiliate" means an
entity controlling, controlled by or under common control with Tenant);
(ii) Landlord's consent shall not be required in the event that Tenant merges
into or consolidates with another entity, or upon the sale of all of the
stock or substantially all of the stock or assets of Tenant to a party who
expressly assumes the obligations of Tenant under this Lease, provided that
Tenant shall give Landlord prompt written notice of any such assignment. The
provisions of Sections 18.3 and 18.5 shall not apply in the case of either of
the foregoing.
ARTICLE 19
WAIVER OF CLAIMS; INDEMNIFICATION
Section 19.1 Tenant waives all claims against Landlord for
damage to any property or injury to, or death of, any person in, upon, or
about the Premises arising at any time and from any cause other than by
reason of the willful or wanton acts or omissions of Landlord, its agents,
employees or contractors. Tenant shall indemnify Landlord and shall hold
Landlord harmless from any damage to any property or injury to, or death of,
any person arising from (i) any occurrence in or at the Premises, or the use
and/or occupancy of the Premises, and/or the operations in or at the Premises
of and by the Tenant and/or Guarantor, their respective agents, employees,
representatives, contractors, or invitees, (ii) the business conducted by
Tenant and/or by Guarantor, in the Premises, (iii) any act or omission of
Tenant and/or by Guarantor, or their respective employees, agents,
contractors or invitees, and (iv) any breach or default by Tenant in the
observance or performance of its covenants and obligations under this Lease,
in each case except such as is caused by the willful or wanton acts or
omissions of Landlord, its agents, employees or contractors. Without
limiting the generality of the foregoing, Landlord shall not be liable for
any injury or damage to persons or property in the Premises resulting from
fire, explosion, falling plaster, steam, gas, electricity, water, rain,
flood, snow, or leaks from any part of the Premises or from the pipes,
appliances, equipment, plumbing works, roof, or subsurface of any floor or
ceiling, or from the street or any other place, or by dampness, or by any
other cause whatsoever, unless caused by the willful or wanton acts or
omissions of Landlord, its agents, employees or contractors. Landlord shall
not be liable for any such damage to persons or property in the Premises
caused by other tenants or persons in the Building or by occupants of
adjacent property thereto or by the public, or caused by any private, public,
or quasi-public
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EXHIBIT 10.16
construction or other work, including, but not limited to, any construction,
modification, or operation of underground, ground-level, or pedestrian
tunnels, bridges, walkways, or similar items. Tenant's foregoing indemnity
obligation shall include reasonable attorneys' fees, investigation costs, and
all other reasonable costs and expenses incurred by Landlord from the first
notice that any claim or demand has been made or may be made.
Section 19.2 Landlord shall indemnify Tenant and shall hold
Tenant harmless from any damage to any property or injury to, or death of,
any person arising from (i) any occurrence in or at the Building or the
Building's parking facilities, or the use of the Building or the parking
facilities by Landlord or its agents, employees, representatives, contractors
or invitees, (ii) any act or omission of Landlord or its employees, agents,
contractors or invitees, and (iii) any breach or default by Landlord in the
observance or performance of its covenants and obligations under this Lease,
in each case except such as is caused by the willful or wanton acts or
omissions of Tenant, its agents, employees or contractors.
Section 19.3 The provisions of this Article 19 shall survive
the termination of this Lease with respect to any damage, injury, or death
occurring before such termination. If Landlord is made a party to any
litigation commenced by Tenant or because of any act or omission by Tenant or
relating to this Lease or to the Premises, and provided that in any such
litigation Landlord is not finally adjudicated to be at fault, then Tenant
shall pay all costs and expenses, including reasonable attorneys' fees and
court costs, incurred by or imposed upon Landlord because of any such
litigation, and the amount of all such costs and expenses, including
reasonable attorneys' fees and court costs, shall be a demand obligation
owing by Tenant to Landlord. Tenant shall have the right, at Tenant's sole
cost and expense, to participate in the defense of any such action or
proceeding brought in connection with any claim against Landlord by a third
party. Tenant may retain attorneys for such purposes. If Tenant is made a
party to any litigation commenced by Landlord or because of any act or
omission by Landlord or relating to this Lease or to the Premises, the
Building or the Parking Facilities (hereinafter defined), and provided that
in any such litigation Tenant is not finally adjudicated to be at fault, then
Landlord shall pay all costs and expenses, including reasonable attorneys'
fees and court costs, incurred by or imposed upon Tenant because of any such
litigation, and the amount of all such costs and expenses, including
reasonable attorneys' fees and court costs, shall be a demand obligation
owing by Landlord to Tenant. Landlord shall have the right, at Landlord's
sole cost and expense, to participate in the defense of any such action or
proceeding brought in connection with any claim against Tenant by a third
party. Landlord may retain attorneys for such purposes.
ARTICLE 20
SURRENDER OF THE PREMISES
Section 20.1 Upon the expiration of the Term or other termination
of this Lease for any cause whatsoever, Tenant shall peacefully vacate the
Premises in as good order and condition as the same were at the beginning of the
Term or may thereafter have been improved by Landlord or Tenant, reasonable use
and wear thereof and damage to the Premises or the Project Upgrades
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EXHIBIT 10.16
by fire or other casualty or condemnation only excepted. In the event that
Tenant continues in possession of the Premises after the termination of this
Lease, whether the termination occurs by lapse of time or otherwise, such
holding over, unless otherwise agreed to by Landlord in writing, shall
constitute and be construed as a tenancy at will at a monthly Rental (for each
month or partial month Tenant holds over) equal to 125% of the monthly Rental
payable by Tenant during the immediately prior calendar month of the Term and
shall be subject to all of the other terms set forth herein except any right to
renew this Lease, but the foregoing shall not constitute a consent by Landlord
to such holding over and shall not prevent Landlord from exercising any of its
remedies under this Lease or applicable law by reason of such holding over.
Tenant shall be liable to Landlord for all damage which Landlord suffers because
of any holding over by Tenant, and Tenant shall indemnify Landlord against all
claims made by any other tenant or prospective tenant against Landlord resulting
from delay by Landlord in delivering possession of the Premises to such other
tenant or prospective tenant.
Section 20.2
(a) Tenant shall remove, at Tenant's expense, all of its furniture,
furnishings, personal property, and movable equipment and trade fixtures by
the last day of the Term and shall promptly repair all damage done to the
Premises or the Building by such removal. Any items not so removed by the
last day of the Term shall be deemed abandoned and shall thereupon, at
Landlord's election, become the property of Landlord.
(b) Except as provided in Section 20.2(a), Tenant shall not remove
any alteration made by Tenant or any of the Project Upgrades at the
expiration of the Term without Landlord's consent. Any and all Project
Upgrades and alterations to the Premises shall become the property of
Landlord upon termination of this Lease (except for movable equipment or
furniture owned by Tenant and removed pursuant to the terms of Section
20.2(a)).
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EXHIBIT 10.16
ARTICLE 21
ESTOPPEL CERTIFICATES
Tenant agrees to furnish no later than fifteen (15) days after a
request therefor by Landlord, or the holder or proposed or prospective holder
of any deed of trust or mortgage covering the Building, the Land, or any
interest of Landlord therein or any purchaser of Landlord's interest in the
Building, a certificate signed by Tenant certifying (to the extent same is
true) that this Lease is in full force and effect and unmodified; that the
Term has commenced and the full Rental is then accruing hereunder; that
Tenant has accepted possession of the Premises and that any improvements
required by the terms of this Lease to be made by Landlord have been
completed to the satisfaction of Tenant; that no Rental under this Lease has
been paid more than thirty (30) days in advance of its due date; that the
address for notices to be sent to Tenant is as set forth in this Lease (or
has been changed by notice duly given and is as set forth in the
certificate); that Tenant, as of the date of such certificate, has no
knowledge of any charge, lien, or claim of offset under this Lease or
otherwise against Rentals or other charges due or to become due hereunder;
that Tenant has no knowledge of any default by Landlord then existing under
this Lease; and such other matters as may be reasonably requested by Landlord
or any such holder or proposed or prospective holder of such deed of trust,
or mortgage or purchaser. If Tenant is unable to so certify as to one or
more of the foregoing items, Tenant shall specify its reason therefor in the
certificate. Any such certificate may be relied upon by any prospective
purchaser, mortgagee, or any beneficiary or proposed or prospective holder
under any deed of trust on the Building or the Land or any part thereof.
Landlord agrees to furnish periodically, when reasonably requested in writing
by Tenant or a prospective assignee of Tenant's interest in this Lease,
certificates signed by Landlord containing substantially the same information
as described above. Any such certificate may be relied upon by any
prospective assignee of Tenant's interest in this Lease.
ARTICLE 22
SUBORDINATION
Section 22.1 Subject to Tenant's receipt of a Subordination,
Attornment and Non-Disturbance Agreement, substantially in the form of
Exhibit G hereto from the holder of each such Superior Instrument, this Lease
shall be subject and subordinate to all present and future deeds of trust,
mortgages, or other security instruments (collectively, "Superior
Instruments") which may from time to time during the Term cover the Building
and/or the Land, or any interest of Landlord therein, and to any advances
made on the security thereof, and to any refinancings, increases, renewals,
modifications, consolidations, replacements, and extensions of any such
future Superior Instruments. Subject to Tenant's receipt of a Subordination,
Attornment and Non-Disturbance Agreement as hereinabove set forth, upon
demand, Tenant shall execute, acknowledge, and deliver to Landlord any
further instruments and certificates evidencing such subordination as
Landlord or the holder of any Superior Instrument may reasonably request.
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EXHIBIT 10.16
Section 22.2 Notwithstanding the generality of the foregoing provisions
of Section 22.1 hereof, any holder of a Superior Instrument shall have the
right, unilaterally, at any time, to subordinate fully or partially any such
Superior Instrument to this Lease on such terms and subject to such conditions
as such holder of a Superior Instrument may consider appropriate. Upon request,
Tenant shall execute an instrument confirming any such full or partial
subordination by any holder of a Superior Instrument. At any time, before or
after the institution of any proceedings for the foreclosure of any Superior
Instrument, and/or sale of the Building under any Superior Instrument, or upon
the termination of any ground lease, Tenant shall attorn to such purchaser upon
any such sale or the grantee under any deed in lieu of such foreclosure or to
any ground lessor in the event of a termination of a ground lease, as the case
may be, and shall recognize each such purchaser, grantee, or ground lessor, as
the case may be, as Landlord under this Lease. Tenant hereby waives the right,
if any, to elect to terminate this Lease or to surrender possession of the
Premises in the event of the judicial or non-judicial foreclosure of any deed of
trust, mortgage, or security agreement (or any transfer in lieu thereof) or
termination of a ground lease. The foregoing agreement of Tenant to attorn shall
survive any such foreclosure sale, trustee's sale, or conveyance in lieu
thereof. Tenant shall, upon demand at any time, before or after any such
foreclosure sale, trustee's sale, or conveyance in lieu thereof, or termination
of a ground lease, execute, acknowledge, and deliver to Landlord's mortgagee or
holder of any Superior Instrument or any successor thereof or any then owner of
the Building or to the ground lessor (as the case may be) any written
instruments and certificates evidencing such attornment as such mortgagee,
successor, owner, or ground lessor may reasonably require.
Section 22.3 Should any ground lease be terminated, or any
Superior Instrument be foreclosed, the liability of the mortgagee, trustee,
or purchaser, as the case may be, as "Landlord" hereunder, shall exist only
with respect to the acts or omissions of such person or entity occurring
while it was the owner of the Land and/or Building. Further, Tenant agrees
that any mortgagee, trustee, or purchaser shall not be liable for (i) any
Rental paid more than thirty (30) days in advance of its due date; (ii) any
amendment or modification of this Lease without the prior written approval of
mortgagee, trustee, or purchaser unless such amendment or modification shall
not materially impair the security of such mortgagee, trustee or purchaser or
the value of the Property; or (iii) any default by or any claim against any
prior Landlord.
Section 22.4 If there is ever a ground lease, Landlord shall
provide to Tenant an agreement from the holder of each ground lease on the
Land and/or the Building a non-disturbance agreement, providing that so long
as Tenant is not in default beyond any applicable cure period in the payment
of Rental or any other material covenant or condition of this Lease, (i) its
rights as Tenant hereunder shall not be affected or terminated, (ii) its
possession of the Premises shall not be disturbed, (iii) no action or
proceeding shall be commenced to remove or evict Tenant, and (iv) the Lease
shall at all times continue in full force and effect notwithstanding the
termination or expiration of such ground lease prior to the expiration or
termination of this Lease.
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EXHIBIT 10.16
ARTICLE 23
DEFAULT AND REMEDIES
Section 23.1 The occurrence of any one or more of the
following events shall constitute an event of default under this Lease: (a)
if Tenant shall fail to pay any Rental or other sums payable by Tenant
hereunder, including without limitation all sums to be paid to Landlord
pursuant to the Work Agreement, as and when such Rental or other sums become
due and payable and such failure shall continue for more than five (5) days
after notice; (b) if Tenant shall fail to perform or observe any covenant or
obligation hereunder or any of the Rules and Regulations and such failure
shall continue for more than ten (10) days after notice; or, if such failure
cannot be corrected within such 10-day period, if Tenant does not commence to
correct same within said 10-day period and thereafter diligently prosecute
the correction of same to completion; (c) if any petition is filed by or
against Tenant or any guarantor of Tenant's obligations under this Lease
under any section or chapter of the present or any future Federal Bankruptcy
Code or under any similar law or statute of the United States or any state
thereof (which, in the case of an involuntary proceeding, is not permanently
discharged, dismissed, stayed, or vacated, as the case may be, within sixty
(60) days of its commencement), or if any order for relief shall be entered
against Tenant or any guarantor of Tenant's obligations under this Lease in
proceedings filed under any section or chapter of the present or any future
Federal Bankruptcy Code or under any similar law or statute of the United
States or any state thereof; (d) if Tenant or any guarantor of Tenant's
obligations under this Lease becomes insolvent or makes a transfer in fraud
of creditors; (e) if Tenant or any guarantor of Tenant's obligations under
this Lease makes an assignment for the benefit of creditors; (f) if a
receiver, custodian, or trustee is appointed for Tenant or any guarantor of
Tenant's obligations under this Lease or for any of the assets of Tenant or
any guarantor of Tenant's obligations under this Lease, which appointment is
not vacated within sixty (60) days of the date of such appointment; or (g) if
Tenant shall fail or refuse to move into or take possession of the Premises
within thirty (30) days after the Rent Commencement Date.
Section 23.2
(a) If an event of default occurs, Landlord shall have the right to
pursue any one or more of the following remedies in addition to all other
rights or remedies provided herein or at law or in equity:
(i) Landlord may terminate this Lease or without terminating
this Lease, terminate Tenant's right of possession and forthwith repossess
the Premises by peaceable entry, detainer suit or other legal process without
liability for trespass or conversion and be entitled to recover as damages a
sum of money equal to the total of (A) the cost of recovering the Premises,
(B) the unpaid Rental due and payable at the time of termination, plus
interest thereon at the rate hereinafter specified from the due date, and any
other sum of money owed by Tenant to Landlord; and (C) the balance of the
Rental payable by Tenant pursuant to this Lease for the remainder of the
Term, as such may have been extended, if at all, such balance to be payable
without discount to present value as follows: (i) In the event such
termination of this Lease or of Tenant's right of possession, as the case may
be ("Termination") occurs between the effective
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EXHIBIT 10.16
date of this Lease and the end of the one hundred twentieth (120th) month
following the Rent Commencement Date, Tenant shall be obligated to pay to
Landlord promptly upon Termination an amount equal to the Rental payable by
Tenant for and with respect to the twenty-four (24)-month period following
the date of Termination. Additionally, (1) in the event Termination occurs
within the first sixty (60) months following the Rent Commencement Date then,
on the first day of the thirteenth (13th) month immediately following the
Termination, and on each anniversary thereof during the Term (collectively,
"Payment Dates"), respectively, Tenant shall pay to Landlord a lump sum
amount equal to the Rental payable by Tenant for and with respect to the
twelve (12)-month period commencing twelve (12) months following such Payment
Date; or (2) in the event that such Termination occurs subsequent to the
sixtieth (60th) month following the Rent Commencement Date and prior to the
end of the one hundred twentieth (120th) month following the Rent
Commencement Date, on the first day of the twenty-fifth (25th) month
immediately following the Termination, and on each anniversary thereof during
the Term (collectively, "Alternative Payment Dates"), respectively, Tenant
shall pay to Landlord a lump sum amount equal to the Rental payable by Tenant
for and with respect to the twelve (12)-month period commencing on such
Alternative Payment Date; or (ii) In the event that such Termination occurs
subsequent to the one hundred twentieth (120th) month following the Rent
Commencement Date, Tenant shall be obligated to pay to Landlord promptly upon
the Termination and every twelve (12) months thereafter during the Term
(collectively, "Later Payment Dates"), respectively, a lump sum amount equal
to the Rental payable by Tenant for and with respect to the twelve (12)-month
period immediately following such Later Payment Date. Landlord shall use
commercially reasonable efforts to relet the Premises for such rent and upon
such terms as shall be satisfactory to Landlord following such an event of
default, during the remainder of the Term as such may have been extended, if
at all. In the event Landlord relets all or any portion of the Premises for
all or any portion of the remainder of the Term, the rentals and other sums
actually received by Landlord from any such reletting, less the costs and
expenses of decorations, repairs, changes, improvements, alterations and
additions of and to the Premises that may be necessary or convenient, and the
expense of such reletting, including but not limited to brokerage and/or
finder commissions, and the expense of the collection of the rent accruing
therefrom ("Net Rental", since the last payment made by Tenant to Landlord
pursuant to this Section 23.2(a)(i)(C), shall be credited to the next such
payment required to be made by Tenant to Landlord pursuant to this Section
23.2(a)(i); provided, however, that in the event Termination occurs between
the sixtieth (60th) and one hundred twentieth (120th) month following the
Rent Commencement Date, and thereafter, during the first twelve months
following the Termination, Landlord relets all or any part of the Premises,
the Net Rental received by Landlord by reason of such reletting with respect
to periods during the first twenty-four months following Termination shall be
credited against the payment to be made hereunder by Tenant on the first
Alternative Payment Date, and the portion of such Net Rental for such period
in excess of the amount of such credit, if any, shall promptly thereafter be
refunded to Tenant up to the amount previously paid by Tenant.
(ii) Landlord may terminate this Lease or, without termination
this Lease, terminate Tenant's right of possession and forthwith repossess
the Premises by peaceable entry and detainer suit or other legal process
without liability for trespass or conversion, without demand or notice of any
kind to Tenant and without terminating this Lease, in which event
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EXHIBIT 10.16
Landlord shall use commercially reasonable efforts to relet the same for the
account of Tenant for such rent and upon such terms as shall be satisfactory
to Landlord. For the purpose of such reletting, Landlord is authorized to
decorate or to make any repairs, changes, alterations, or additions in or to
the Premises that may be necessary or convenient. If Landlord exercises the
remedies provided in this subparagraph, Tenant shall pay to Landlord, and
Landlord shall be entitled to recover from Tenant, an amount equal to the
total of the following: (A) unpaid Rental, plus interest at the rate
hereinafter provided, owing under this Lease for all periods of time that the
Premises are not relet; plus (B) the cost of recovering possession, and all
of the costs and expenses of such decorations, repairs, changes, alterations,
and additions, and the expense of such reletting and of the collection of the
rent accruing therefrom to satisfy the rent provided for in this Lease to be
paid; plus (C) any deficiency in the rentals and other sums actually received
by Landlord from any such reletting from the Rental required to be paid under
this Lease with respect to the periods the Premises are so relet, and Tenant
shall satisfy and pay any such deficiency upon demand therefor from time to
time. Tenant agrees that Landlord may file suit to recover any sums falling
due under the terms of this subparagraph from time to time; and that no
delivery or recovery of any portion due Landlord hereunder shall be a defense
in any action to recover any amount not theretofore reduced to judgment in
favor of Landlord, nor shall such reletting be construed as an election on
the part of Landlord to terminate this Lease unless a written notice of such
intention be given to Tenant by Landlord. Notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate
this Lease for such previous default.
(iii) Apply to any rents, damages, or other sums of money owed
by Tenant any security deposit and/or any advance rent applicable to any time
period after the occurrence of the default and any sums which would then or
thereafter otherwise be due from Landlord to Tenant.
Section 23.3 No act or thing done by Landlord or its agents
during the Term shall constitute an acceptance of an attempted surrender of
the Premises, and no agreement to accept a surrender of the Premises shall be
valid unless made in writing and signed by Landlord. No re-entry or taking
possession of the Premises by Landlord shall constitute an election by
Landlord to terminate this Lease, unless a written notice of such intention
is given to Tenant. Notwithstanding any such reletting or re-entry or taking
possession, Landlord may at any time thereafter terminate this Lease for a
previous default. Landlord's acceptance of Rental following an event of
default hereunder shall not be construed as a waiver of such event of
default. No waiver by Landlord or Tenant of any breach of this Lease shall
constitute a waiver of any other violation or breach of any of the terms
hereof. Forbearance by Landlord or Tenant to enforce one or more of the
remedies herein provided upon a breach hereof shall not constitute a waiver
of any other breach of the Lease.
Section 23.4 No provision of this Lease shall be deemed to
have been waived by Landlord or Tenant unless such waiver is in writing and
signed by such party. Nor shall any custom or practice which may evolve
between the parties in the administration of the terms of this Lease be
construed to waive or lessen Landlord's or Tenant's right to insist upon
strict performance of the terms of this Lease. The rights granted to
Landlord and Tenant in this Lease shall be cumulative of every other right or
remedy which Landlord or Tenant may otherwise have
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EXHIBIT 10.16
at law or in equity or by statute, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
ARTICLE 24
WAIVER BY TENANT
To the extent permitted by applicable law, Tenant for itself and all
claiming by, through, and under it, including creditors of all kinds, waives
each and every right and privilege which it or any of them may have under any
present or future constitution, statute, or rule of law to receive a notice
to quit or other similar notice or to redeem the Premises or to continue to
occupy the Premises under this Lease or otherwise after termination of
Tenant's right of occupancy by either an order or judgment of any court, any
legal process or writ, under the terms of this Lease, or after the
termination of the Term as herein provided.
ARTICLE 25
SECURITY DEPOSIT/REPAYMENT OF ADVANCES
On the date hereof, Tenant shall pay Landlord in cash the Security
Deposit as set forth in the Basic Lease Information as security for the
performance of Tenant's obligations under this Lease. The Security Deposit
shall not constitute an advance payment of Rental or a measure of Landlord's
damages upon a breach of this Lease by Tenant or upon termination of this
Lease. Landlord may, without prejudice to any other remedy, use the Security
Deposit to the extent necessary to remedy any default in the payment of
Rental or to satisfy any other obligation of Tenant hereunder, and Tenant
shall promptly, on demand, restore the Security Deposit to its original
amount. If Landlord transfers its interest in the Premises during the Term,
Landlord may assign the Security Deposit to the transferee who shall then
become obligated to Tenant for its return pursuant to the terms of this
Lease, and thereafter Landlord shall have no further liability for its
return. The Security Deposit shall bear interest at NationsBank, N.A.'s
passbook savings rate. Provided that an event of default by Tenant has not
theretofore occurred, Landlord shall apply the Security Deposit to the
monthly installments of Annual Base Rental due on the first day of the
thirty-seventh (37th) and thirty-eight (38th) months following the
Commencement Date. Tenant shall pay the balance of such monthly installment
for such thirty-eight (38th) month. Provided that Tenant is not then in
default, Landlord shall return the then balance, if any, of the Security
Deposit, and any accrued interest thereon, to Tenant within thirty (30) days
after the expiration or sooner termination of the Term of this Lease. On the
date hereof, Landlord shall refund to Tenant $104,919.60, being the aggregate
amount of funds advanced by Tenant for certain construction soft costs.
ARTICLE 26
[INTENTIONALLY OMITTED]
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EXHIBIT 10.16
ARTICLE 27
ATTORNEYS' FEES AND LEGAL EXPENSES
In any action or proceeding brought by either party against the other
under this Lease, the prevailing party shall be entitled to recover from the
other party reasonable attorneys' fees, investigation costs, fees of experts,
and other reasonable legal expenses and court costs incurred by such party in
such action or proceeding.
ARTICLE 28
NOTICES
Section 28.1 Any notice or demand, consent, approval or
disapproval, or statement (collectively called "Notices") required or
permitted to be given by the terms and provisions of this Lease, or by any
law or governmental regulation, shall be in writing (unless otherwise
specified herein) and, unless otherwise required by such law or regulation,
shall be personally delivered or sent by United States mail postage prepaid
as registered or certified mail, return receipt requested, or sent by a
nationally recognized reputable overnight courier. Any Notice shall be
addressed to Landlord or Tenant, as applicable, at its address specified in
the Basic Lease Information, as said address may be changed from time to time
as hereinafter provided. By giving the other party at least ten (10) days'
prior written notice, either party may, by Notice given as above provided,
designate a different address or addresses for Notices.
Section 28.2 Any Notice shall be deemed given (i) as of the
date of delivery as indicated by affidavit in case of personal delivery or by
the return receipt in the case of mailing or by a signed or initialed receipt
in the case of delivery by overnight courier or (ii) in the event of failure
to deliver by reason of changed address of which no Notice had been given or
refusal to accept delivery, as of the date of such failure as indicated by
affidavit or on the return receipt or by notice of the postal service, as the
case may be.
ARTICLE 29
PARKING
Section 29.1 Landlord shall provide the Tenant 2.9 parking
spaces for each 1,000 square feet of space leased and occupied to Tenant;
such parking spaces to be located in the surface parking lot adjacent to the
Building ("Parking Facilities").
Section 29.2 If all or any portion of the Parking Facilities
shall be damaged or rendered unusable by fire or other casualty or any taking
pursuant to eminent domain proceeding (or deed in lieu thereof), and as a
result thereof Landlord is unable to make available to Tenant the parking
provided for herein, then the number of cars which Tenant shall be entitled
to park
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EXHIBIT 10.16
hereunder shall be proportionately reduced so that the number of cars which
Tenant may park in the Parking Facilities after the casualty or condemnation
in question shall bear the same ratio to the total number of cars which can
be parked at such time as the number of cars Tenant had the right to park
prior to such casualty or condemnation bore to the aggregate number of cars
which could be parked at that time. If more than ten percent (10%) of the
Parking Facilities (i) shall be damaged or rendered unusable by fire or other
casualty or (ii) shall be rendered unusable by any taking pursuant to eminent
domain proceeding (or deed in lieu thereof) and such damaged or condemned
parking spaces cannot be restored or replaced on the Land or land adjacent to
the Land and/or by the "Center Spaces" (hereinafter defined) within one
hundred eighty (180) days of such fire or other casualty or such taking, then
Tenant, at its option, may terminate this Lease by not less than sixty (60)
days written notice to Landlord. In seeking to replace any such destroyed or
condemned parking spaces, Landlord may replace such parking spaces with any
parking spaces contained within the Shady Grove Life Sciences Center,
including any property owned or occupied by Tenant, to the extent that it can
locate or create parking spaces in addition to the number of spaces otherwise
required by applicable code requirements (the "Center Spaces"). Landlord
shall provide van service to and from the parking facilities not on or
adjacent to the Premises which are being utilized by Tenant's employees.
Upon Landlord's request, Tenant shall grant an easement to Landlord to
construct parking facilities on Tenant's land immediately adjacent to the
Premises and Landlord shall have the right to construct parking facilities on
any other land immediately adjacent to the Premises provided it obtains
appropriate easements from the owner(s) of such property. Such parking
facilities constructed by Landlord on adjacent land shall be deemed to be
"Parking Facilities" for purposes of this Section 29.2.
ARTICLE 30
EXPANSION OPTION
(a) If at any time during the term of the Lease and any applicable
Renewal Period ("Refusal Period"), Landlord prepares a proposal pertaining to
all or a portion of the Expansion Space which Landlord is prepared to offer
as a lease proposal to a third party, then Landlord, prior to sending the
proposal to the prospective tenant, shall send a written notice (the "Offer
Notice") to Tenant of such proposal. The Offer Notice shall set forth in
reasonable detail the size or portion of the Expansion Space subject to the
proposal and shall contain (or be deemed to contain) an offer to Tenant to
lease the portion of the Expansion Space subject to the proposal, for the
then-remaining Term of this Lease (including any optional Renewal Periods, on
the terms and conditions set forth in this Article 30. Tenant may elect to
accept the Offer Notice, by giving written notice to Landlord of its election
not more than ten (10) business days after receipt by Tenant of the Offer
Notice. Any election by Tenant shall be irrevocable.
(b) In the event Tenant responds within the ten (10) business day
period and elects the proposal set forth in the Offer Notice, then this Lease
shall automatically be amended to include within the Premises the portion of
the Expansion Space subject to the Offer Notice. Within thirty (30) days
after Tenant's exercise of its option as to all or any part of the Expansion
Space, Landlord and Tenant shall execute an amendment to this Lease
confirming such exercise and
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EXHIBIT 10.16
demise of such Expansion Space. The Tenant's obligation to pay rent for the
Expansion Space shall commence on the date on which Landlord delivers
possession of such Expansion Space to Tenant, with all improvements thereto
substantially complete.
(c) A failure by Tenant to respond within such ten (10) business day
period, or Tenant's election not to accept an Offer Notice, shall extinguish
Tenant's expansion option in that (but not any subsequent) instance, so that
Landlord shall not be required to reoffer to Tenant the Expansion Space
described in Landlord's Offer Notice until such space becomes available for
reletting after Landlord has leased such space. The expansion option granted
by this Article 30 shall continue throughout the Refusal Period
notwithstanding any failure by Tenant to exercise such expansion option in
any one or more instances.
(d) Any Expansion Space leased by Tenant pursuant to this Article 30
shall be leased for the same per-square-foot Annual Base Rent as is then
payable hereunder for the Premises (and subject to the same 3% annual
increases in such Annual Base Rent, which annual increase shall also be made
at the commencement of each Lease Year), and upon all of the terms and
conditions set forth in this Lease applicable to the Premises except as
otherwise set forth in this Section 30(d). Landlord shall improve such space
in accordance with plans and specifications prepared by Tenant and approved
by Landlord (which approval shall not be unreasonably withheld, conditioned
or delayed), in accordance with the requirements applicable to Project
Upgrades in the Work Agreement attached hereto as Exhibit D; provided,
however, that the Improvement Allowance provided by Landlord for such space
shall be the unamortized portion, as of the lease commencement date for such
space, of the Ten Dollar ($10.00) per square foot of Rentable Area
Improvement Allowance provided in such Work Agreement, amortized on a
straight-line basis over the fifteen (15) year Lease Term. There shall be no
Improvement Allowance for any Expansion Space leased by Tenant during any
Renewal Period.
(e) The foregoing notwithstanding, in no event shall Landlord enter
into a lease with any party other than Tenant for more than 3,500 square feet
of the Expansion Space (the "Short Term Space") which is adjacent to the
Premises, for a term in excess of five (5) calendar years (inclusive of
renewal options) commencing on the commencement date of such lease, or for
any other Expansion Space for a term in excess of seven (7) calendar years
(inclusive of renewal options) commencing on the commencement date of such
lease. The Short Term Space shall be contiguous to the Premises and shall be
outlined as an exhibit to this Lease to be attached hereto by amendment as of
the Rent Commencement Date.
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EXHIBIT 10.16
ARTICLE 31
MISCELLANEOUS
Section 31.1 Where this Lease requires Tenant to pay or to
reimburse directly Landlord for any item, unless otherwise expressly provided
in this Lease, such payment or reimbursement will be the actual costs
incurred therefor by Landlord, including a reasonable allocation of
Landlord's overhead, administrative and related costs, and a reasonable fee
to Landlord associated with the service in question. Failure to pay any such
amounts shall be considered as a failure to pay Rental, and, as a result,
Landlord shall be entitled to all applicable rights and remedies. Where this
Lease requires Landlord to pay or to reimburse directly Tenant for any item,
unless otherwise expressly provided in this Lease, such payment or
reimbursement will be the amount of the actual costs incurred therefor by
Tenant, including a reasonable allocation of Tenant's overhead,
administrative and related costs.
Section 31.2 Landlord recognizes the Broker (as set forth in
the Basic Lease Information) as the sole broker procuring this Lease and
shall pay the Broker a commission therefor in accordance with a separate
written agreement. Landlord and Tenant each represent and warrant to the
other that, except for the Broker set forth in the Basic Lease Information,
neither of them has employed any broker in carrying on the negotiations
relative to this Lease. Landlord and Tenant shall each indemnify and hold
harmless the other from and against any claim or claims for brokerage or
other commissions arising from or out of any breach of the foregoing
representation and warranty. Landlord and Tenant recognize that the
exclusive leasing representative is entitled to the payment of a commission
under certain circumstances for services rendered in that negotiation and
obtaining of this Lease, and Landlord has agreed to pay such commission
pursuant to separate agreement by and between Landlord and the Broker.
Section 31.3 As used herein, "business days" means Monday
through Friday (except holidays); "Normal Business Hours" means 8:00 a.m. to
6:00 p.m. on business days; and "holidays" means January 1st, Martin Luther
King, Jr. Day, Presidents' Day, Memorial Day, July 4th, Labor Day,
Thanksgiving and the Friday after Thanksgiving, and Christmas.
Section 31.4 Every agreement contained in this Lease is, and
shall be construed as, a separate and independent agreement. If any term of
this Lease or the application thereof to any person or circumstances shall be
invalid and unenforceable, the remainder of this Lease, or the application of
such term to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected.
Section 31.5 There shall be no merger of this Lease or of
the leasehold estate hereby created with the fee estate in the Premises or
any part thereof by reason of the fact that the same person may acquire or
hold, directly or indirectly, this Lease or the leasehold estate hereby
created or any interest in this Lease or in such leasehold estate as well as
the fee estate in the Premises or any interest in such fee estate. In the
event of a voluntary or other surrender of this
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EXHIBIT 10.16
Lease or a mutual cancellation hereof, Landlord may, at its option, terminate
all subleases or treat such surrender or cancellation as an assignment of
such subleases.
Section 31.6 Any and all covenants, undertakings, and
agreements herein made on the part of Landlord are made and intended not as
personal covenants, undertakings, and agreements of any member, director,
officer, employee, shareholder, or holder or owner of any interest in
Landlord or any affiliate of Landlord (collectively "Landlord's Affiliates")
or for the purpose of binding Landlord's Affiliates personally or the assets
of Landlord's Affiliates except their interest in the Land, Building, and
Premises and Landlord's equity in any insurance proceeds or condemnation
awards with respect to the Land, Building and/or Premises, but are made and
intended for the purpose of binding only the Landlord's interest from time to
time in the Land, Building, and Premises. No personal liability or personal
responsibility is assumed by, nor shall at any time be asserted or
enforceable against, Landlord's Affiliates or their agent or agents,
beneficiaries, partners, or their respective heirs, legal representatives,
successors, and assigns on account of this Lease or on account of any
covenant, undertaking, or agreement of Landlord in this Lease contained, all
such liability being specifically waived by Tenant.
Section 31.7 Whenever a period of time is herein prescribed
for action to be taken by Landlord or Tenant, such party shall not be liable
or responsible for, and there shall be excluded from the computation for any
such period of time, any delays due to strikes, riots, acts of God, shortages
of labor or materials, war, governmental laws, regulations, or restrictions,
or any other cause of any kind whatsoever which is beyond the reasonable
control of such party.
Section 31.8 The article headings contained in this Lease
are for convenience only and shall not enlarge or limit the scope or meaning
of the various and several articles hereof. Words of any gender used in this
Lease shall include any other gender, and words in the singular number shall
be held to include the plural, unless the context otherwise requires.
Section 31.9 If there is more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several, and all
agreements and covenants herein contained shall be binding upon the
respective heirs, personal representatives, successors, and, to the extent
permitted under this Lease, assigns of the parties hereto.
Section 31.10 Neither Landlord nor Landlord's agents or
brokers have made any representations or promises with respect to the
Premises or the Building except as herein expressly set forth, and all
reliance with respect to any representations or promises is based solely on
those contained herein. No rights, easements, or licenses are acquired by
Tenant under this Lease by implication or otherwise except as expressly set
forth in this Lease.
Section 31.11 This Lease sets forth the entire agreement
between the parties and cancels all prior negotiations, arrangements,
brochures, agreements, and understandings, if any, between Landlord and
Tenant regarding the subject matter of this Lease. No amendment or
modification of this Lease shall be binding or valid unless expressed in a
writing executed by both parties hereto.
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EXHIBIT 10.16
Section 31.12 The submission of this Lease to Tenant shall
not be construed as an offer, nor shall Tenant have any rights with respect
thereto unless Landlord executes a copy of this Lease and delivers the same
to Tenant.
Section 31.13 Each of the persons executing this Lease on
behalf of Tenant represents and warrants that he or she is an officer or
partner of Tenant, that Tenant has complied with all applicable laws, rules,
and governmental regulations relative to its right to do business in the
State of Maryland, that Tenant has the full right and authority to enter into
this Lease, and that all persons signing on behalf of the Tenant were
authorized to do so by any and all necessary or appropriate corporate or
partnership actions.
Section 31.14 Each of the persons executing this Lease on
behalf of Landlord represents and warrants that Landlord has complied with
all applicable laws, rules, and governmental regulations relative to its
right to do business in the State of Maryland, that such entity has the full
right and authority to enter into this Lease, and that all persons signing on
behalf of Landlord were authorized to do so by any and all necessary or
appropriate corporate or partnership actions.
Section 31.15 If, in connection with obtaining debt or equity
financing for the Building (including a sale/leaseback), any lender, investor
shall request reasonable modifications to this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay, or defer its consent
thereto, provided that such modifications do not materially increase the
obligations of Tenant hereunder or materially adversely affect either the
leasehold interest hereby created or Tenant's use and enjoyment of the
Premises or materially reduce Tenant's rights under this Lease.
Section 31.16 This Lease shall be governed by and construed
under the laws of the State of Maryland. Any action brought to enforce or
interpret this Lease shall be brought in the court of appropriate
jurisdiction in the State of Maryland. Should any provision of this Lease
require judicial interpretation, it is agreed that the court interpreting or
considering same shall not apply the presumption that the terms hereof shall
be more strictly construed against a party by reason of the rule or
conclusion that a document should be construed more strictly against the
party who itself or through its agent prepared the same, it being agreed that
all parties hereto have participated in the preparation of this Lease and
that legal counsel was consulted by each party hereto before the execution of
this Lease.
Section 31.17 Any elimination or shutting off of light, air,
or view by any structure which may be erected on lands adjacent to the
Building shall in no way affect this Lease or impose any liability on
Landlord.
Section 31.18 Upon reasonable notice to Tenant, except in the
case of an emergency, Landlord, its agents or employees, shall have the right
to enter the Premises at all reasonable times (a) to make inspections or to
make repairs to the Premises or repairs to other premises as Landlord may
deem necessary, (b) to exhibit the Premises to prospective tenants,
prospective purchasers of the Building and/or the Land, and any existing or
prospective lender or holder of (or beneficiary under) security interest in
the Building or Land or any Superior Instrument, and (c) for any purpose
whatsoever relating to the safety, protection, or preservation of the
Building,
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EXHIBIT 10.16
provided, in each case, that Landlord shall use reasonable efforts to
minimize interference with Tenant's business operations in the Premises.
Section 31.19 The exhibits referred to in the Basic Lease
Information are by this reference incorporated fully herein. The term "this
Lease" shall be considered to include all such exhibits.
Section 31.20 LANDLORD AND TENANT HEREBY WAIVE TRIAL BY JURY
IN AND IN RESPECT OF IN ANY AND EVERY ACTION, PROCEEDING, CLAIM (WHETHER OR
NOT DENOMINATED, A CLAIM, COUNTERCLAIM, CROSS-CLAIM, OFF-SET OR THE LIKE)
BROUGHT OR ASSERTED BY EITHER AGAINST THE OTHER WITH RESPECT TO ANY MATTER
ARISING OUT OF, UNDER, OR CONNECTED WITH THIS LEASE.
Section 31.21 Nothing contained in this Lease shall be deemed
to create a partnership or joint venture between Landlord and Tenant or to
create any other relationship between the parties other than that of Landlord
and Tenant.
Section 31.22 The provisions of this Lease shall inure to the
benefit of and are binding upon Landlord, Tenant, and the successors and
assigns of each.
Section 31.23 Tenant hereby waives any and all rights of
redemption or restoration of the operation of this Lease conferred by any
present or future law, statute or otherwise upon the expiration or sooner
termination of the Term, the entry of final unappealable judgment for
recovery of possession through any action or proceeding, or Landlord's
obtaining possession of the Premises under the terms of this Lease.
Section 31.24 The term "Landlord," as used in this Lease,
means only the owner for the time being of the Building, so that, in the
event of any sale of the Building, the seller shall be, and hereby is,
entirely freed and relieved of all covenants and obligations of the Landlord
hereunder, not theretofore accrued, and it shall be deemed and construed,
without further agreement between the parties or between the parties and the
purchaser of the Building, that such purchaser has assumed and agreed to
carry out any and all covenants and obligations of the Landlord hereunder.
ARTICLE 32
RESTRICTIVE COVENANT
Tenant is the ground lessee of a certain parcel of land located
adjacent to Land and which is leased from Montgomery County, Maryland
pursuant to a certain Ground Lease dated December 20, 1983 ("Lot H/H-1").
Tenant acknowledges that approximately 21,000 square feet of commercial floor
area ratio density ("FAR Density") required for the development and
construction of the Building is required to be transferred from Lot H/H-1 to
Lot Z and therefor
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EXHIBIT 10.16
cannot be developed on Lot H/H-1. In furtherance of the foregoing, Tenant
acknowledges and agrees:
(i) that from and after the date of Lease, the density
development on Lot H/H-1 shall be restricted to not more than 77,000; and
(ii) to join in and support the transfer of such density from
Lot H/H-1 to Lot Z and upon request to execute any and all applications,
plats, permits and other instruments as may be necessary to implement the
permanent irrevocable transfer of such density from Lot H/H-1 to Lot Z; and
(iii) that simultaneously with the execution this Lease,
Landlord and Tenant and any mortgagees of Tenant's interest in Lot H/H-1,
shall execute and record a restrictive covenant against Lot H/H-1 in the form
of Exhibit "H" to this Lease (the "Restrictive Covenant") to limit the
density on Lot H/H-1 as aforesaid. Montgomery County shall join in execution
of the Restrictive Covenant for the purposes of subjecting its fee interest
in Lot H/H-1 to the operation and effect of Restrictive Covenant. Tenant
agrees to grant, execute or join in any and all instruments that may be
required to further evidence, confirm or clarify the terms of the Restrictive
Covenant.
ARTICLE 33
BUILDING SIGNAGE
(a) Subject to the requirements of this Section 33, Tenant, at
Tenant's sole cost and expense, shall have the right to install signage to
display Tenant's name on the exterior of the third (3rd) floor of the
Building, in a location selected by Tenant facing Blackwell Road or
Broschart, and to cause electricity to be brought to said signage. The plans
and specifications for such sign and any other signs Tenant intends to
install in or on the Building (at Tenant's sole cost and expense) are
attached hereto as Exhibit J and made a part hereof. After construction and
prior to installation of said signs, Tenant shall present the same to
Landlord for its written approval, which approval shall not be withheld so
long as the signs conform fully to the plans and specifications set forth in
Exhibit J. Tenant shall install its approved signs at a time mutually agreed
upon by Landlord and Tenant, it being understood and agreed that Landlord
shall have the right to supervise such installation. Tenant, at Tenant's
sole cost and expense, shall obtain all necessary permits for such signage
and otherwise ensure that all such signage complies with all requirements of
applicable laws, ordinances and regulations.
(b) Throughout the term of this Lease, Tenant shall pay for all
electricity consumed by said sign, and shall maintain said sign in good
condition and repair. Upon the expiration or termination of the Term of this
Lease, Tenant, at its expense, shall remove such sign and repair any damage
to the Building resulting therefrom.
EXECUTED under seal as of the date first written above in the Basic
Lease Information.
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EXHIBIT 10.16
[SIGNATURE PAGE FOLLOWS]
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EXHIBIT 10.16
LANDLORD
WITNESS/ATTEST: FP ROCKLEDGE, L.L.C.
By
- -------------------------------- --------------------------------------
Name: Name:
--------------------------- --------------------------------
Title: [Assistant] Secretary Title:
--------------------------------
[Corporate Seal]
TENANT
WITNESS/ATTEST: MA BIOSERVICES, INC.
By
- -------------------------------- --------------------------------------
Name: Name:
--------------------------- --------------------------------
Title: [Assistant] Secretary Title:
--------------------------------
[Corporate Seal]
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EXHIBIT 10.16
EXHIBIT A
PLAT OF THE LAND
A-1
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EXHIBIT A-1
FLOOR PLAN OF THE PREMISES
A-1-1
63
EXHIBIT 10.16
EXHIBIT A-2
EXPANSION SPACE
A-2-1
64
EXHIBIT 10.16
EXHIBIT B
LEGAL DESCRIPTION OF THE LAND
B-1
65
EXHIBIT 10.16
EXHIBIT C
CLEANING SPECIFICATIONS
C-1
66
EXHIBIT 10.16
EXHIBIT D
WORK AGREEMENT
D-1
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EXHIBIT D-1
METHOD OF MEASUREMENT
The Rentable Area of the Premises and the Rentable Area of the Building
are to be determined based upon The Washington, D.C. Association of Realtors,
Inc. Standard Method of Measurement dated January 1, 1989, a copy of which is
attached hereto, except that any shafts necessitated by the buildout of the
Premises shall be included in both the Rentable of the Premises and the
Rentable Area of the Building.
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EXHIBIT 10.16
EXHIBIT E
RULES AND REGULATIONS
1. Sidewalks, doorways, entrances, vestibules, halls, stairways,
courts, elevators, and similar areas shall not be obstructed or encumbered by
tenants or their officers, agents, servants, or employees or used for any
purpose other than ingress and egress to and from the Premises and for going
from one part of the Building to another part of the Building. Landlord
shall have reasonable control over the use and operation of 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. Landlord reserves the right to control, operate,
restrict, and regulate the use of the Common Areas, public facilities, and
any facilities furnished for the common use of the tenants in such manner as
it reasonably deems best for the benefit of the tenants, including but not
limited to the allocation of elevators for delivery service and the right to
designate which Building entrances shall be used for deliveries.
2. Plumbing fixtures and appliances shall be used only for the
purposes for which constructed, and no sweepings, rubbish, rags, or other
unsuitable material shall be thrown or placed therein. The cost of repairing
any stoppage or damage resulting to any such fixtures or appliances from
misuse on the part of a tenant or such tenant's officers, agents, servants,
employees, visitors, or licensees shall be paid by such tenant.
3. Landlord shall have the right to prohibit any advertising or
identifying sign by Tenant which, in the reasonable judgment of Landlord,
impairs the appearance, reputation, or desirability of the Building as a
first-class Building. No signs, posters, advertisements, or notices shall be
inscribed, painted, affixed, or displayed on any exterior window, exterior
door, or other exterior part of the Building, except of such color, size, and
style and in such places as shall be first approved in writing by Landlord.
Further, approved signs shall be inscribed, painted, or affixed at Tenant's
sole cost. If any such sign, poster, advertisement, or notice is exhibited
without the required approval, Landlord or the Building manager shall have
the right to remove the same and the tenant exhibiting the same shall be
liable for any and all expenses incurred by Landlord or the Building manager
by said removal.
4. The Premises shall not be used for conducting any barter, trade,
or exchange of goods or sale through promotional give-away gimmicks or by any
business involving the sale of second-hand goods, insurance salvage stock, or
fire sale stock, and the Premises shall not be used for any auction or
pawnshop business, fire sale, bankruptcy sale, going-out-of-business sale,
moving sale, bulk sale, or any other business which, because of merchandising
methods or otherwise, would tend to lower the first-class character of the
Building. The use of its premises by any tenant shall not be changed without
the prior written approval of Landlord.
5. Tenants shall not place a load upon any floor of the Premises
which exceeds the floor load per square foot which such floor was designed to
carry or which is allowed by applicable building codes. Landlord may
prescribe the weight and position of all safes and heavy
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EXHIBIT 10.16
installations which any tenant desires to place in the Building so as to
properly distribute the weight thereof. All damage done to the Building by
the improper placing of heavy items which overstress the floor will be
repaired at the sole expense of the tenant responsible.
6. If Tenant shall request Landlord to perform any work on the
Premises or the Property, Tenant shall make such request at the management
office for the Building. Tenant shall not request employees of Landlord to
perform any work or do anything outside of their regular duties, unless under
special instructions from Landlord.
7. The doors leading to the corridor or main halls shall be kept
closed during business hours except as they may be used for ingress or
egress. All entrance doors in Tenant's Premises shall be kept locked when
not in use.
8. Tenant, before closing and leaving its Premises at any time,
shall see that all lights are turned off.
9. Each tenant shall cooperate with Building employees in keeping
its premises neat and clean.
10. Nothing, including mats and trash, shall be placed, swept, or
thrown into the corridors, halls, elevator shafts, stairways, or other common
or public areas. No tenant shall throw anything out of the doors or windows
or down the corridors or stairs of the Building.
11. No birds, animals (except seeing eye dogs), reptiles or small
fish shall be brought into or kept in or about the Premises or the Building.
12. No tenant shall make, or permit to be made, any disturbing
noises nor disturb or interfere with occupants of this or neighboring
buildings or premises, whether by the use of any musical instrument, radio,
or in any other way.
13. Tenant shall not cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to be produced upon or to
emanate from its Premises which would annoy other tenants or create a public
or private nuisance. No cooking shall be done in Tenant's Premises except
for a household microwave oven or as is expressly permitted in the Lease or
otherwise consented to in writing by Landlord.
14. Tenants, employees, agents, or anyone else who desires to enter
or leave the Building after Normal Business Hours may be required to provide
appropriate identification and to sign in upon entry and departure, giving
such person's destination within the Building and such person's time of
arrival and departure. Landlord reserves the right to exclude from the
Building at all times any person who is not known or does not properly
identify himself or herself to the Building management or watchman on duty.
15. Nothing shall be done or permitted in the Premises, and nothing
shall be brought into, installed, or kept in or about the Premises, which
would impair or interfere with any of the HVAC, plumbing, electrical, or
structural components of the Building or the services of the
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EXHIBIT 10.16
Building or the proper and economic heating, cleaning, or other services of
the Building or the Premises. No inflammable, combustible, or explosive
fluid, chemical, or substance shall be brought or kept in the Building except
those that are routinely used for standard office equipment or are otherwise
used in Tenant's normal business operations.
16. Landlord has the right to evacuate the Building in the event of
emergency or catastrophe or for the purpose of holding a reasonable number of
fire drills.
17. Landlord reserves the right to rescind, alter, waive, or add any
rule or regulation at any time prescribed for the Building when Landlord
reasonably deems it necessary or desirable for the reputation, safety,
character, security, care, appearance, or interests of the Building; the
preservation of good order therein; the operation or maintenance of the
Building or the equipment thereof; or the comfort of tenants or others in the
Building. No rescission, alteration, waiver, or addition of any rule or
regulation with respect to one tenant shall operate as a rescission,
alteration, or waiver in respect of any other tenant. Landlord may, upon
request by any tenant, waive compliance by such tenant with 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; and (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.
18. No bicycles or vehicles of any kind shall be brought into or
kept in or about the Premises.
19. Except for locks and bolts and similar security devices
installed by Tenant and approved by Landlord, which approval shall not be
unreasonably withheld, to control access to and from the Premises, or
installed by Tenant to control access to specific areas of the Premises, no
locks or bolts of any kind shall be placed upon any of the entrances to the
Premises, nor shall any changes be made in existing locks or the mechanisms
thereof, and Tenant shall at all times provide Landlord a key and other means
required to gain access to any system and/or facility of the Building located
within the Premises. Landlord shall not enter the Premises except in an
emergency unless accompanied by one of Tenant's employees. Tenant shall
provide the other tenants of the Building with security cards and readers,
integrated with Tenant's security system, at Tenant's actual cost, including
maintenance charges. Each tenant shall, upon the termination of its tenancy,
return to Tenant all keys or security system cards and readers either
furnished to or otherwise procured by such tenant, and in the event of the
loss of any such items, such tenant shall pay to Tenant the cost of replacing
the same.
20. Any contract of any kind with any supplier of water, waxing, rug
shampooing, lamp servicing, cleaning of electrical fixtures, removal of waste
papers, rubbish, or garbage, or any other cleaning, janitorial, or like
service entered into by Tenant, shall be terminated by Tenant upon the
written request of Landlord based upon Landlord's reasonable determination
that such contractor is disruptive or otherwise detrimental to the Building.
Further, no vending machine of any kind shall be installed in the Building or
on or about the Premises without the
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EXHIBIT 10.16
prior written consent of Landlord, which consent shall not be unreasonably
withheld. Tenant shall notify Landlord or the Building manager of any person
employed by it to do janitorial work within the Premises, except for
full-time employees of Tenant, prior to such person's commencing work, and
such person shall, while in the Building and outside of the Premises, comply
with all instructions issued by Landlord or its representatives. No tenant
shall pay any employees of Landlord or Landlord's agent to perform any work
or services in the Premises or the Building.
21. Canvassing, soliciting, and peddling in the Building is
prohibited and each tenant shall cooperate to prevent the same.
22. No hand truck or similar vehicle except those equipped with
rubber tires and rubber side guards shall be used in the public or common
areas of the Building, either by any tenant or by others, in the delivery or
receipt of merchandise.
23. Except while loading and unloading vehicles, there shall be no
parking of vehicles or other obstructions placed in the loading dock area.
24. Landlord hereby reserves to itself any and all rights not
granted to Tenant hereunder, including but not limited to the following
rights which are reserved to Landlord for its purposes in operating the
Building:
a. the exclusive right to use of the name of the Building for
all purposes, except that Tenant may use the name as its business address and
for no other purposes;
b. the right to change the address of the Building without
incurring any liability to Tenant for so doing; provided, however, that
Landlord shall reimburse Tenant for the cost of replacing any unused
stationery and business cards;
26. A directory will be placed by Landlord, at Landlord's own
expense, in the Building. No other directories shall be permitted.
27. Tenants shall not do anything, or permit anything to be done, in
or about the Building, or bring or keep anything therein, that will in any
way obstruct or interfere with the rights of, or otherwise injure or annoy,
other tenants.
28. Should a tenant require telegraphic, telephonic, annunciator, or
any other communication service, Landlord will direct the electricians and
installers where and how the wires are to be introduced and placed, and none
shall be introduced or placed except as Landlord shall direct.
29. Business machines and mechanical equipment belonging to a tenant
which cause noise and/or vibration that may be transmitted to the structure
of the Building or to any leased space so as to be objectionable to Landlord
or any tenants in or occupants of the Building shall be placed and maintained
by such tenant, at such tenant's expense, in settings of cork, rubber, or
spring-type noise and/or vibration eliminators sufficient to eliminate
vibration and/or noise.
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EXHIBIT 10.16
30. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business, Tenant, before occupying the
Premises, shall procure and maintain such license or permit and submit it for
Landlord's inspection. Tenant shall at all times comply with the terms of
any such license or permit.
31. In order that the Building can and will maintain a uniform
appearance to those persons outside of the Building, each tenant occupying
the perimeter area of the Building shall (a) use only building-standard
lighting in areas where lighting is visible from the outside of the Building
and (b) use only building-standard blinds in window areas which are visible
from the outside of the Building. Tenant shall not install or maintain any
blinds, curtains, or any other window covering on windows of the Premises
unless approved in advance by Landlord.
32. Tenant shall keep all portions of the Premises which are visible
from outside the Premises in a tasteful, neat, and orderly condition
characteristic of first-class professional offices. No desks, bookcases, file
cabinets, or other furniture shall be placed against the windows of the
Premises.
33. In the event of any conflict or inconsistency between the terms
and provisions of these Rules and Regulations, as now or hereafter in effect,
and the terms and provisions of the Lease to which these Rules and
Regulations are attached, the terms and provisions of such Lease shall
prevail.
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EXHIBIT 10.16
EXHIBIT F
DECLARATION BY LANDLORD AND TENANT
AS TO LEASE COMMENCEMENT DATE
THIS DECLARATION is hereby attached to and made a part of the Lease
dated the ___ day of ___________, 19__, entered into by and between FP
Rockledge, L.L.C., as Landlord, and MA BioServices, Inc., as Tenant. All
terms used in this Declaration have the same meaning as they have in the
Lease.
1. Landlord and Tenant do hereby declare that possession of the
Premises was accepted by Tenant on the _____ of _____________, 19__;
2. As of the date hereof, the Lease is in full force and effect,
and Landlord has fulfilled all of its obligations under the Lease required to
be fulfilled by Landlord on or prior to said date; and
3. The Lease Commencement Date is hereby established to be
_____________, 19___.
4. The Rentable Area of the Building is _______ square feet.
5. The Rentable Area of the Premises is _____ square feet.
6. The Annual Base Rental for the first Lease Year is $_______ per
year ($______ per month).
7. Tenant's initial Proportionate Share is _______%.
WITNESS/ATTEST: LANDLORD:
FP ROCKLEDGE, L.L.C.
By
- -------------------------------- --------------------------------------
Name: Name:
--------------------------- --------------------------------
Title: Title:
-------------------------- --------------------------------
WITNESS/ATTEST: TENANT:
MA BIOSERVICES, INC.
F-1
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EXHIBIT 10.16
By
- -------------------------------- --------------------------------------
Name: Name:
--------------------------- --------------------------------
Title: Title:
-------------------------- -------------------------------
F-2
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EXHIBIT 10.16
EXHIBIT G
FORM OF SUBORDINATION, ATTORNMENT,
AND NON-DISTURBANCE AGREEMENT
THIS SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
(hereinafter referred to as this "Agreement"), made this ___ day of
_____________, 19__, by and among ___________ ___________________________, a
____________________ organized and existing under the law of the State of
_________________, having an address at c/o
___________________________________ (hereinafter referred to as the
"Lender"), _________________, Trustee and _____________________________,
Trustee, both having a business address at ______________________________
(hereinafter referred to collectively as the "Trustees"), a
______________________ organized and existing under the law of the State of
_____________________, having an address at
____________________________________ (hereinafter referred to as the
"Landlord"), and ___________________________________, a ___________________
organized and existing under the law of the State of ______________, having
an address at _______________________________________________ (hereinafter
referred to as the "Tenant"),
WITNESSETH, THAT WHEREAS the Landlord and the Tenant have entered into
a lease (hereinafter referred to as the "Lease") dated ____________, 19__, by
which the Landlord has leased to the Tenant certain premises (hereinafter
referred to as the "Leased Premises") as further described in the Lease and
located on a portion of that land, situate and lying in ____________ County,
_____________________ which is described in Exhibit A attached hereto and
made a part hereof (hereinafter referred to as the "Property"); and
WHEREAS, the Trustees are trustees under a Deed of Trust and Security
Agreement (hereinafter referred to as the "Deed of Trust") of even date
herewith intended to be recorded among the Land Records of the said County
from the Landlord to the Trustees, securing a loan made by the Lender to the
Landlord, covering the Property (including the Leased Premises); and
WHEREAS, the Tenant has agreed that the Lease shall be and is subject
and subordinate to the lien of the Deed of Trust, provided that the Tenant is
assured that the Lease and the Tenant's rights thereunder will not be
terminated by any foreclosure proceeding brought under the provisions of the
Deed of Trust.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual entry into this
Agreement by the parties hereto, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged by
each party hereto, and anything contained in the provisions of the Lease to
the contrary notwithstanding, the parties hereto hereby agree as follows:
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EXHIBIT 10.16
Section . Subordination. The Lease is and shall be subject and
subordinate to the lien, operation and effect of the Deed of Trust and all
renewals, modifications, consolidations, replacements, increases and
extensions thereof.
Section . Effect of Foreclosure.
2.1. Foreclosure under Deed of Trust. If any foreclosure
proceeding is brought under the provisions of the Deed of Trust,
2.1.1. (a) provided that the Tenant is not then in
default under the Lease beyond any applicable cure period, such proceeding
shall not operate to terminate the Lease or the Tenant's rights thereunder,
and (b) the Lender, for itself and its heirs, personal representatives,
successors and assigns shall not terminate the Lease or the Tenant's rights
thereunder, or disturb the Tenant in its possession of the Leased Premises,
provided that the Tenant is not then in default beyond any applicable cure
period under the Lease and continues to pay the rent and otherwise to perform
its obligations hereunder and under the provisions of the Lease; but
2.1.2. neither the Lender nor any purchaser at such
foreclosure shall be
(a) liable for any breach, act or omission of the
Landlord or any other person under the Lease,
(b) subject to any offset or defense which the Tenant may
have against the Landlord or any other person under the Lease,
(c) bound by any payment of rent made by the Tenant to
the Landlord or any other person for a period beyond the month during which
such foreclosure proceeding is ratified,
(d) bound by any amendment or modification of the Lease
made without the Lender's express, written consent thereto, unless such
amendment or modification shall not materially impair the Lender's security
or the value of the Property,
(e) bound by any notice given by the Tenant to the
Landlord pursuant to the provisions of the Lease or otherwise, unless and
until a copy of it is given to the Lender, or
(f) liable for any security deposit or other payment made
under the Lease, unless both (i) the Landlord has actually delivered it in
cash to the Lender or such purchaser, as the case may be, and (ii) it has
been specifically identified, and accepted by the Lender or such purchaser,
as the case may be, as such and for such purpose.
2.1.3. in such event, the Lender shall cause the
Trustees to sell the Leased Premises subject to the operation and effect of
the Lease.
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2.2. Foreclosure under other instruments or liens.
2.2.1. The Tenant shall not, without first obtaining
the Lender's express, written consent thereto, subordinate the Lease or any
of the Tenant's right, title and interest in and to the Leased Premises
thereunder to the lien of any mortgage, deed of trust, other security
agreement or other instrument other than the Deed of Trust.
2.2.2. If any foreclosure proceeding is brought by any
person under any instrument or lien (other than that of the Deed of Trust)
against the Landlord's estate in the Leased Premises (whether or not (a) the
Lender has consented to such instrument or lien, or (b) the Lease is
subordinate thereto), the Tenant shall promptly attorn to the purchaser in
such foreclosure proceeding, upon all of the terms, covenants and conditions
of the Lease, provided that such purchaser agrees with the Tenant in writing
to recognize the Tenant's rights under the Lease for the original term and
the term of any renewal thereof permitted the Tenant by the provisions of the
Lease, so long as the Tenant continues to pay the rent and otherwise to
perform its obligations hereunder and under the provisions of the Lease.
2.3. Attornment to persons owning or controlling Leased
Premises. The Tenant shall
2.3.1. attorn to (a) the Lender whenever the Lender is
in possession of the Leased Premises; (b) any receiver appointed by or for
the Lender in any action to take possession of the Leased Premises; and (c)
any party hereafter acquiring title to the Leased Premises while the Lease
remains in effect, and
2.3.2. execute and deliver to the Lender, promptly on
its receipt of a written request therefor from the Lender or the Trustees, an
appropriate agreement of attornment thereunder confirming that the Tenant is
and then remains bound under all of the terms, covenants and conditions of
the Lease.
2.4. Deed in Lieu of Foreclosure. If the Lender elects to
accept from the Landlord a deed in lieu of foreclosure, the provisions of
Section 2.1.1 and 2.1.2 hereof shall apply.
Section 3. Election by Lender. If the Lender, pursuant to the
provisions of an Assignment of Leases and Rents of even date herewith, from
the Landlord to the Lender, and covering the Property (a copy of which will
be furnished to the Tenant by the Landlord within ten (10) days from the date
hereof), elects to require the Tenant to pay to the Lender the rent and other
charges payable by the Tenant under the provisions of the Lease, then (unless
and until the Lender cancels such election by written notice to the Tenant).
3.1. the Tenant shall be similarly bound to the Lender and shall
similarly attorn to the Lender as its landlord, and
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EXHIBIT 10.16
3.2. the Lender shall accept such attornment, upon the terms set
forth in the provisions of paragraphs 2.1.1 and 2.1.2, and provided that the
conditions precedent set forth therein are satisfied at the time of such
election.
Section 4. Landlord's Defaults.
4.1. Notices to Landlord. Anything contained in the provisions
of the Lease to the contrary notwithstanding, the Tenant shall provide to the
Lender a copy of each notice of default or termination (or other matters
which would materially impair the Lender's security) which the Tenant may
from time to time serve upon the Landlord pursuant to the provisions of the
Lease or otherwise in connection therewith, and no such notice given to the
Landlord as to such matters shall be effective unless such copy is provided
to the Lender.
4.2. Opportunity to Cure. Before the Lease is terminated or any
of the Landlord's rights thereunder or in connection therewith are forfeited
or adversely affected because of any default by the Landlord thereunder, the
Tenant shall give express, written notice of such default to the Lender. The
Lender, following such notice, shall have the right, but not the obligation,
to cure any such default within (a) fifteen (15) days if such default may be
cured upon the payment of money, or (b) thirty (30) days for any other
default, unless the cure requires the Lender to obtain possession of the
Leased Premises. If Lender's cure of the default requires the Lender to
obtain possession of the Leased Premises, the thirty (30) day period shall
not commence until Lender acquires possession of the Leased Premises, so long
as the Lender proceeds promptly to acquire possession of the Leased Premises
with due diligence, by foreclosure or otherwise. All payments so made, and
all things so done and performed, by the Lender shall be as effective to
prevent the Landlord's rights from being forfeited or adversely affected
because of such default as if it had been done and performed by the Landlord.
Section 5. Amendment of Lease. The Landlord and the Tenant hereby
agree that the provisions of the Lease are hereby amended by the insertion
therein of the following sentence:
The Tenant shall not, without the prior
written consent of [Lender] or its successors and
assigns, as beneficiary under a Deed of Trust and
Security Agreement covering the leased premises,
subordinate this Lease to the lien of any mortgage,
deed of trust or encumbrance other than the said
Deed of Trust and Security Agreement.
Section 6. Acknowledgment of assignment of Lease. The Tenant hereby
acknowledges that the Lease has been or will be assigned by the Landlord to
the Lender by the Assignment of Leases and Rents, and agrees that from and
after the date hereof, unless the Lender has first consented thereto
expressly and in writing, the Tenant will (a) pay no rent under the Lease
more than thirty (30) days before its due date, (b) except as may be
expressly permitted by the provisions of the Lease, pay such rent when due,
without any deduction, set off or counterclaim whatsoever, and (c) not
surrender its leasehold estate or consent to the modification of the terms of
the Lease or to the Landlord's termination thereof.
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EXHIBIT 10.16
Section 7. General.
7.1. Effectiveness. This Agreement shall become effective upon
and only upon its execution and delivery by each party hereto. Nothing
contained in this Agreement shall in any way impair or affect the lien
created by the Deed of Trust, except as specifically set forth herein.
7.2. Complete understanding. This Agreement represents the
complete understanding among the parties hereto as to the subject matter
hereof, and supersedes all prior negotiations, representations, guaranties,
warranties, promises, statements or agreements, either written or oral, among
them as to the same.
7.3. Amendment. This Agreement may be amended by and only by an
instrument executed and delivered by each party hereto.
7.4. Waiver. No party hereto shall be deemed to have waived the
exercise of any right which it holds hereunder unless such waiver is made
expressly and in writing (and no delay or omission by any party hereto in
exercising any such right shall be deemed a waiver of its future exercise).
No such waiver made as to any instance involving the exercise of any such
right shall be deemed a waiver as to any other such instance, or any other
such right.
7.5. Applicable Law. This Agreement shall be given effect and
construed by application of the law of the State of Maryland.
7.6. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns hereunder; provided,
however, that in the event of the assignment or transfer of the interest of
the Lender hereunder, under the Deed of Trust, and under that certain Deed of
Trust Note by and between the Lender and the Landlord of even date therewith,
all obligations and liabilities of the Lender under this Agreement shall
terminate and thereupon all such obligations and liabilities shall be the
responsibility of the party to whom the Lender's interest is assigned or
transferred; and provided further that the interest of the Tenant under this
Agreement may not be assigned or transferred.
7.7. Satisfaction of Lease Terms. The Tenant agrees that this
Agreement satisfies any condition or requirement in the Lease relating to the
granting of a non-disturbance agreement.
7.8. Limitation of Liability. Anything herein or in the Lease
to the contrary notwithstanding, in the event that the Lender shall acquire
title to the Leased Premises or the Property, the Lender shall have no
obligation, nor incur any liability, beyond the Lender's then interest, if
any, in the Leased Premises and the Tenant shall look exclusively to such
interest of the Lender, if any, in the Leased Premises for the payment and
discharge of any obligations imposed upon the Lender hereunder or under the
Lease, and the Lender is hereby released or relieved of any other obligations
hereunder and under the Lease. The Tenant agrees that with respect to any
money judgment which may be obtained or secured by Tenant against the Lender,
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EXHIBIT 10.16
the Tenant shall look solely to the estate or interest owned by the Lender in
the Leased Premises or the Property, or any portion thereof, or interest
therein, and Landlord's equity in any insurance proceeds or condemnation
awards received by Lender with respect to the Property, and will not collect
or attempt to collect any such judgment out of any other assets of the Lender.
7.9. Landlord's Agreement. The Landlord, as the grantor under
the Deed of Trust, agrees for itself and its successors and assigns, that (i)
the within Agreement does not (a) constitute a waiver by the Landlord of any
of its rights under the Deed of Trust and/or (b) in any way release the
Lender from its obligation to comply with the terms, provisions, conditions,
covenants, agreements and clauses of the Deed of Trust, (ii) the provisions
of the Deed of Trust remain in full force and effect and must be complied
with by the Landlord, and (iii) in the event of a default under the Deed of
Trust, the Tenant may pay all rent and all other sums due under the Lease to
the Lender as provided in the within Agreement.
IN WITNESS WHEREOF, each party hereto has executed and ensealed this
Agreement or caused it to be executed and ensealed on its behalf by its duly
authorized representatives, the day and year first above written.
[SIGNATURES TO BE ADDED]
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EXHIBIT 10.16
EXHIBIT H
RESTRICTIVE COVENANT
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EXHIBIT 10.16
EXHIBIT I
TERMS AND CONDITIONS FOR EQUIPMENT INSTALLED ON ROOF
The following are the terms and conditions under which Tenant shall
have the right, during the term of the Lease, to install, maintain and
operate air handling equipment (the "Equipment") on the roof of the Building.
1. TERMS AND CONDITIONS TO ROOF ACCESS.
Tenant's right to install, maintain and operate the Equipment on the
roof of the Building is subject to the following terms and conditions:
a. Tenant has provided, and Landlord has approved, the plans and
specifications of the Equipment and the proposed installation and
placement of the Equipment. The approved plans and specifications of
the Equipment and the installation and placement thereof are
attached hereto as Exhibit I-A.
b. Landlord hereby agrees to install the Equipment on the roof of the
Building, at Tenant's expense in accordance with the plans and
specifications attached hereto as Exhibit "I-A" and the terms and
conditions of this Agreement.
c. The roof of the Building shall be a twenty (20)-year bonded roof.
Landlord, at Tenant's expense, shall seal any roof penetration
caused by the installation of the Equipment. Tenant, at its expense,
shall seal any roof penetration caused by the maintenance, or
removal of the Equipment. Landlord and Tenant shall use Landlord's
roof contractor to seal such penetrations, provided that such
contractor charges a reasonable market price for such work. Landlord
shall be responsible for all roof repairs necessitated by the
installation of the Equipment, including any roof repairs which
would have been covered by a warranty lost by reason of the same.
Tenant shall be responsible for all roof repairs necessitated by the
maintenance or removal of the Equipment, including any roof repairs
which would have been covered by a warranty lost by reason of the
same. Landlord shall inspect any maintenance of the Equipment, and
shall give Tenant written notice of any deficiencies in the same.
d. Subject to subparagraph 1.i, Landlord shall have the right to cause
Tenant to relocate the Equipment if required by applicable law.
Landlord shall have the right to perform maintenance and repairs on
the roof and shall use reasonable efforts to avoid disrupting
Tenant's operation of the Equipment. In the event Landlord causes
damage to the Equipment as a result of its performing maintenance
and/or repairs on the roof, Tenant shall cause the Equipment to be
repaired at Landlord's expense. Landlord shall pay the cost of such
repairs within fifteen (15) days after receipt of an invoice
therefor. Landlord shall give Tenant
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EXHIBIT 10.16
reasonable written notice of any repairs, maintenance or other
activities which may affect the operation of the Equipment, and
shall comply with Tenant's reasonable requirements in performing any
such repairs, maintenance or other activities.
e. Tenant shall be responsible for compliance of the Equipment with all
applicable laws and regulations and ordinances, zoning laws, and
Building insurance requirements. Tenant acknowledges that Landlord
has made no representations or warranties to Tenant that the
Equipment is permitted under applicable zoning ordinances. Tenant
shall furnish evidence to Landlord of the compliance of the
Equipment with the applicable zoning ordinances and laws and
regulations prior to and following installation.
f. In the event the installation or maintenance of the Equipment
affects other portions of the Building, including common areas and
space leased to other tenants, Landlord shall have the right to
approve all such work.
g. At the expiration or earlier termination of the Lease, Tenant may,
at its option, remove the Equipment at its expense, provided that
Tenant shall repair any resulting damage to the roof in a manner
reasonably satisfactory to Landlord. If at any other time Tenant
desires to remove the Equipment from the roof, Tenant shall hire a
contractor approved in advance in writing by Landlord, which
approval shall not be unreasonably withheld, to remove the
Equipment. Tenant shall be responsible for repairing all damages
that may occur to the roof and/or the Building and/or to the
property of other tenants due to such removal, at its own cost and
expense.
h. The plans and specifications attached hereto as Exhibit I-A show all
equipment and structures anticipated to be placed on the roof of the
Building as of the date of this Lease. Tenant shall have the right
to place antennas, satellite dishes and other communications
equipment (collectively, "Antennas") on the roof of the Building,
provided that Tenant complies with the provisions of subparagraphs
1.a through 1.g and paragraph 2 of this Exhibit I, as modified by
this subparagraph 1.h, in the installation, use, maintenance and
removal of such Antennas. The requirements of subparagraphs 1.a.
through 1.g of this Exhibit I shall be modified as follows with
respect to the installation, use, maintenance and removal of the
Antennas:
(i) Tenant, at its expense, shall install the Antennas on the roof
of the Building, in accordance with the plans and
specifications approved in advance by Landlord, which approval
shall not be unreasonably withheld, conditioned or delayed.
(ii) The Antennas shall be installed by a contractor approved in
advance by Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed. Such contractor must obtain
such insurance as may be reasonably required by Landlord. Upon
Landlord's approval of a contractor, Tenant shall present
Landlord with such contractor's insurance
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EXHIBIT 10.16
coverages for Landlord's reasonable approval. Such contractor
shall then obtain and maintain any additional insurance
coverages that may be reasonably required by Landlord. Failure
of the contractor to obtain and maintain such insurance after
reasonable notice shall be an event of default under the
Lease. Landlord shall inspect the installation and any
maintenance of the Antennas, and shall give Tenant written
notice of any deficiencies in the same.
(iii) Tenant, at its expense, shall seal any roof penetration caused
by the installation, maintenance or removal of the Antennas.
Tenant shall be responsible for all roof repairs necessitated
by the installation, maintenance or removal of the Antennas,
including any roof repairs which would have been covered by a
warranty lost by reason of the same.
(iv) At the expiration or earlier termination of the Lease, Tenant
shall remove the Antennas at its expense, and shall repair any
resulting damage to the roof in a manner reasonably
satisfactory to Landlord.
i. Landlord shall not install, or permit the installation of, any
satellite dishes or antennas, on the roof of the Building (other
than the equipment and structures shown on the attached Exhibit I-A
and any Antennas installed by Tenant) without Tenant's reasonable
prior written consent. The location of any such equipment on the
roof shall be subject to Tenant's reasonable approval. Tenant shall
have the right to cause Landlord to relocate any such equipment, at
Tenant's expense, in the event that in Tenant's reasonable
determination, the operation of such equipment interferes with the
use of the Equipment, the Antennas or any other equipment now or
hereafter installed by Tenant on the roof of the Building.
j. Landlord shall restrict access to the roof of the Building to
maintenance personnel and other individuals with a legitimate
purpose for being on the roof.
2. INDEMNIFICATION
Tenant hereby agrees to indemnify, defend and hold harmless Landlord
and any subsidiary or affiliate of Landlord and the officers, directors,
members, shareholders, partners, employees, managers, independent
contractors, attorneys and agents of any of the foregoing (collectively, the
"Indemnitees") from and against any and all claims, demands, causes of
action, judgments, losses, damages, costs and expenses (including reasonable
attorneys' fees and costs and litigation expenses) arising from or relating
to the Tenant's maintenance and/or operation of the Equipment or Tenant's
breach of any of the provisions of this Exhibit I. Upon notice from
Landlord, Tenant shall defend any such claim, demand, action or proceeding at
Tenant's sole cost and expense by counsel satisfactory to Landlord at its
sole discretion. The provisions of this paragraph are in addition to any
other indemnification provisions contained in the Lease and shall survive the
expiration or sooner termination of the Lease.
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EXHIBIT 10.16
EXHIBIT I-A
PLANS AND SPECIFICATIONS FOR EQUIPMENT ON ROOF
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EXHIBIT 10.16
EXHIBIT A
INSURANCE REQUIREMENTS
Prior to the commencement of any work by a contractor or agent of Tenant,
Tenant shall deliver to Landlord a Certificate of Insurance evidencing that
the following insurances are in full force and effect:
1. All worker's compensation or similar insurance required with
respect to employees who are employed in connection with the
performance of such work;
2. General Liability insurance, including bodily injury, personal
injury, and property damage liability, in connection with such
contractor's or agent's business and operations in the amount of
not less than Three Million Dollars ($3,000,000.00) for injury or
death of one or more persons arising out of any one accident or
occurrence;
3. Comprehensive automobile liability insurance for all owned, hired
and non-owned vehicles, with minimum limits of One Million
Dollars ($1,000,000.00) combined single limits per occurrence for
bodily injury and property damage liability; and
4. Such other or additional insurance as Landlord may reasonably
deem appropriate;
5. Each policy shall:
a. provide thirty (30) days written notice of cancellation to
Landlord;
b. include Landlord as an additional insured;
c. waive subrogation against Landlord; and
d. provide that the policy is primary and non-contributory
with any policy of Landlord.
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EXHIBIT 10.16
EXHIBIT J
TENANT'S EXTERIOR SIGN SPECIFICATIONS
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EXHIBIT 10.16
EXHIBIT K
GUARANTY OF LEASE
FOR VALUE RECEIVED, and in consideration for, and as an inducement
to FP ROCKLEDGE, L.L.C. to enter into a lease (the "Lease") as "Landlord"
with MA BIOSERVICES, INC. as "Tenant," the undersigned, whether one or more,
jointly and severally do hereby unconditionally guarantee to Landlord (i) the
punctual and full payment of all rents of every kind, additional rents and
all other charges, including without limitation all sums to be paid by Tenant
to Landlord pursuant to the Work Agreement which is a part of the Lease, to
be paid by Tenant under the Lease and (ii) the full and timely performance
and observance of all the covenants, conditions, and agreements to be
performed and observed by Tenant under the Lease. The undersigned shall
indemnify, defend and hold harmless Landlord and its affiliates from any
loss, damages or costs (including, without limitation, the fees of Landlord's
attorneys and court costs) arising out of any failure to pay the aforesaid
rents and other charges or the failure to perform any of the aforesaid
covenants, conditions and agreements under the Lease. The undersigned
further expressly agree that the validity of this Guaranty of Lease and the
obligations of the undersigned hereunder shall in no way be terminated,
affected or impaired by reason of any forbearances, settlements or
compromises between Landlord and Tenant or the invalidity or unenforceability
of the Lease for any reason whatsoever or by the relief of Tenant from any of
Tenant's obligations under the Lease by operation of law or otherwise,
including, without limitation of the generality of the foregoing, the
rejection or assignment of the Lease in connection with proceedings under any
present or future provision of the federal Bankruptcy Act, or any similar law
or statute of the United States or any state thereof.
The undersigned further covenant and agree that this Guaranty of Lease
shall be and remain in full force and effect as to any renewal, modification
or extension of the Lease, whether or not known to or approved by the
undersigned, and that no subletting, assignment or other transfer of the
Lease, or any interest therein, or any such renewal, modification, or
extension, shall operate to extinguish or diminish the liability of the
undersigned hereunder. In the event of any termination of the Lease by
Landlord, the undersigned's liability hereunder shall not be terminated, but
the undersigned shall be and remain fully liable for all damages, costs,
expenses and other claims which may arise under or in connection with the
Lease. If the undersigned shall, directly or indirectly, advance any sums to
Tenant, such sums and indebtedness shall be subordinate in all respects to
the amounts then and thereafter due and owing by the Tenant under the Lease.
Wherever reference is made to the liability of Tenant in the Lease, such
reference shall be deemed likewise to refer to the undersigned, jointly and
severally, with Tenant. The liability of the undersigned for the obligations
of Tenant under the Lease shall be primary, absolute and unconditional. In
any right of action which shall accrue to Landlord under the Lease, Landlord
may, at Landlord's option, proceed against any one or more of the undersigned
and/or Tenant, jointly or severally, and may proceed against any one or more
of the undersigned without having demanded performance of, commenced any
action against or having obtained any judgment
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EXHIBIT 10.16
against Tenant. The undersigned hereby waive any obligation on the part of
Landlord to enforce or seek to enforce the terms of the Lease against Tenant
as a condition to Landlord's right to proceed against the undersigned
hereunder. The undersigned hereby expressly waive: (i) notice of acceptance
of this Guaranty of Lease and of presentment, demand and protest; (ii) notice
of any default hereunder or under the Lease and all indulgences; (iii) demand
for observance, performance or enforcement of any terms or provisions of this
Guaranty of Lease or of the Lease; and (iv) all other notices and demands
otherwise required by law which the undersigned may lawfully waive. This
Guaranty of Lease is a guaranty of payment and not a guaranty of collection.
The undersigned agree that in the event this Guaranty of Lease shall be
enforced by suit or otherwise, the undersigned will reimburse the Landlord,
upon demand, for all expenses incurred in connection therewith, including,
without limitation, reasonable attorneys' fees.
The undersigned hereby waive, to the maximum extent permitted by law,
all defenses available to a guarantor or surety, whether the waiver is
specifically herein enumerated or not, including, without limitation, any
statute of limitations affecting the enforcement of this Guaranty of Lease,
and any right of set-off or compensation against amounts due under this
Guaranty of Lease.
THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS GUARANTY OF LEASE OR ANY
DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS
OF THE UNDERSIGNED OR LANDLORD ARISING OUT OF OR RELATED IN ANY MANNER WITH
THIS GUARANTY OF LEASE (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND
OR CANCEL THIS GUARANTY OF LEASE OR ANY CLAIMS OR DEFENSES ASSERTING THAT
THIS GUARANTY OF LEASE WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR
VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR LANDLORD TO ENTER AND
ACCEPT THE LEASE.
The undersigned hereby assign to Landlord any rights the undersigned may have
to file a claim and proof of claim in any bankruptcy or similar proceeding of
Tenant and any awards or payments thereon to which the undersigned would
otherwise be entitled.
It is further agreed that all of the terms and provisions hereof shall
inure to the benefit of and may be enforced by the respective heirs,
executors, successors and assigns of Landlord and the holder of any mortgage
to which the Lease may be subject and subordinate from time to time, and
shall be binding upon the respective heirs, executors, successors and assigns
of the undersigned. Landlord may, without notice, assign this Guaranty of
Lease, and no such assignment shall diminish the undersigned's liability
under this Guaranty of Lease.
In the event more than one person or entity executes this Guaranty of
Lease, the liability of such signatories hereunder shall be joint and
several. In the event only one person or entity executes this Guaranty of
Lease, all provisions hereof which refer to more than one guarantor
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EXHIBIT 10.16
shall be automatically modified to refer to only one guarantor, and otherwise
this Guaranty of Lease shall remain unmodified and in full force and effect.
It is understood that other agreements similar to this Guaranty of Lease
may, at Landlord's sole option and discretion, be executed by other persons
with respect to the Lease. This Guaranty of Lease shall be cumulative of any
such agreements and the liabilities and obligations of the undersigned
hereunder shall in no event be affected or diminished by reason of such other
agreements. Moreover, in the event Landlord obtains the signature of more
than one guarantor on this Guaranty of Lease or obtains additional guarantee
agreements, or both, the undersigned agree that Landlord, in Landlord's sole
discretion, may (i) compound or settle with any one or more of the guarantors
for such consideration as Landlord may deem proper, and (ii) release one or
more of the guarantors from liability. The undersigned further agree that no
such action shall impair the rights of Landlord to enforce the Lease against
any remaining guarantor or guarantors, including the undersigned.
The undersigned agree to execute and deliver to Landlord, from time to
time, upon five (5) days notice from Landlord, a certificate addressed to
Landlord, any mortgagee or prospective mortgagee, or any prospective
purchaser, certifying (i) that this Guaranty of Lease is unmodified and in
full force and effect and (ii) to such other matters as Landlord may
reasonably request. The undersigned further agree that upon request by
Landlord from time to time, the undersigned shall furnish Landlord, within
five (5) days of receipt of such request, with a copy of the undersigned's
most recent annual financial statements. The undersigned represents and
warrants that all financial statements, records and information furnished by
the undersigned to Landlord in connection with this Guaranty of Lease are
true, correct and complete in all respects.
If any provision of this Guaranty of Lease or the application thereof to
any person or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, the remainder of this Guaranty of Lease and the
application of that provision to other provisions or circumstances shall not
be affected but rather shall be enforced to the fullest extent permitted by
law.
If the undersigned is a corporation (including any form of professional
association), then each individual executing or attesting this Guaranty of
Lease on behalf of such corporation covenants, warrants and represents that
he or she is duly authorized to execute or attest and deliver this Guaranty
of Lease on behalf of such corporation. If the undersigned is a partnership
(general or limited) or limited liability company, then each individual
executing this Guaranty of Lease on behalf of the partnership or company
hereby covenants, warrants and represents that he or she is duly authorized
to execute and deliver this Guaranty of Lease on behalf of the partnership or
company in accordance with the partnership agreement or membership agreement,
as the case may be, or an amendment thereto, now in effect.
This Guaranty of Lease shall be governed by the laws of the State of
Maryland, and shall be performed in all respects in Montgomery County,
Maryland.
EXECUTED UNDER SEAL as of the ______ day of August, 1997.
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EXHIBIT 10.16
GUARANTOR:
BIORELIANCE CORP., a Delaware corporation
By: [SEAL]
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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