EXHIBIT (o)
LEASE AGREEMENT
(*, Maryland)
This Lease Agreement (the "Lease") is made as of the 6th day of June, 2007
by and between VIF II CEL-SCI Partners, LLC, a Delaware limited liability
company (the "Landlord") and CEL-SCI Corporation, a Colorado corporation (the
"Tenant").
ARTICLE 1. DESCRIPTION OF PROPERTY
1.1 Property. Subject to Article 36, below, Landlord hereby leases to
Tenant and Tenant leases from Landlord, pursuant to the terms, conditions and
uses herein set forth, the Property. As used herein, the "Property" means the
entire building commonly known as * (the "Building") and consisting of
approximately 73,025 rentable square feet (the "Premises"), together with the
Land upon which the Building is located as more particularly described in
Exhibit A attached hereto (the "Land").
ARTICLE 2. TERM
2.1 Lease Term. The term of this Lease (the "Lease Term") will be for a
period of two hundred forty (240) full calendar months (plus the applicable
fraction of a calendar month in the event he Commencement Date falls on a date
other than the first day of a calendar month), commencing on the earlier of the
following dates (the "Commencement Date"): (i) the date on which the Tenant
Improvements have been Mechanically/Electrically Complete or (ii) the date that
is fourteen (14) months following the date on which settlement occurs and
Landlord obtains fee title to the Property. The Lease Term shall end on the last
day of the two hundred fortieth (240th) full calendar month following the
Commencement Date. Tenant shall have two (2) options to extend the Lease Term
for ten (10) years each pursuant to the terms and conditions of Section 34,
below.
ARTICLE 3. RENT
3.1 Base Annual Rental. Beginning on the Commencement Date and payable in
advance on the first day of each calendar month of the Lease Term thereafter,
Tenant shall pay to Landlord, and Landlord shall accept, the Base Annual Rental
as set forth in the Base Annual Rent Schedule attached as Exhibit "E" to this
Lease, which Base Annual Rental shall be paid in equal monthly installments. The
Base Annual Rental shall be paid by Tenant in lawful money of the United States
at the address set forth in Section 34.10, or such other address as Landlord may
advise Tenant in writing, without deduction, offset or prior notice or demand.
Tenant has delivered to Landlord the first monthly installment of Base Annual
Rental for the first month of the Lease Term hereof upon execution and delivery
of this Lease. Notwithstanding the foregoing, if the actual Project Cost after
completion of all Improvements (as those terms are defined in the Work Letter
Agreement) is less than Fifteen Million and 00/100 Dollars ($15,000,000.00),
Base Annual Rental shall be adjusted to equal the product of (i) actual Project
Costs and (ii) ten and 50/100 percent (10.50%). The adjusted Base Annual Rental
described in the immediately preceding sentence will be increased annually
commencing on the first day of
* Confidential treatment requested. Confidential portion has been omitted and
filed separately with the Securities and Exchange Commission.
the calendar month immediately following the first (1st) anniversary of the
Commencement Date, and on each anniversary thereafter, by an amount equal to 3%
of the Base Annual Rental for the preceding year. For purposes of this Lease,
"Rent" will mean the Base Annual Rental plus the Additional Rent plus any other
charges due Landlord by Tenant under this Lease.
3.2 Proration of Rent. Prior to the first day of the first full calendar
month of occupancy, in lieu of the first monthly installment of Base Annual
Rental, Tenant will pay Landlord an amount equal to the first monthly
installment of Base Annual Rental multiplied by a factor having as its numerator
the number of days remaining in the month from, after and including the
Commencement Date and as its denominator the number thirty. Thereafter, Rent
shall be payable in accordance with the terms of Section 3.1. The total
consideration for the term of this Lease shall be increased by the amount of the
installment required by this Section 3.2.
3.3 Additional Rent, Expenses and Costs. Commencing upon the Commencement
Date, Tenant shall pay to Landlord (unless otherwise expressly required
hereunder to pay directly to a third party), as additional rent ("Additional
Rent"), all sums of money of any and every sort required to be paid by Tenant
under this Lease, whether or not the same are designated as Additional Rent. If
such amounts or charges are not paid at the time provided in this Lease, they
shall nevertheless be collectible as Additional Rent with the next installment
of the Base Annual Rental thereafter falling due, but nothing herein contained
shall be deemed to suspend or delay the payment of any amount of money or charge
at the time the same becomes due and payable hereunder, or limit any other
remedy of Landlord. Tenant acknowledges that this is an absolute net lease to
Landlord. As such, Tenant shall pay, as Additional Rent, all costs and expenses
relating to the Property.
3.4 Late Fees. Tenant acknowledges that late payment by Tenant to Landlord
of the Base Annual Rental or other charges incurred under this Lease will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of such
costs being extremely difficult and impracticable to fix. Such costs include,
without limitation, processing, administrative and accounting charges. If any
payment of Base Annual Rental, Additional Rent, or other charges due from Tenant
is not received by Landlord within 5 days of when due, such unpaid amounts shall
bear interest at a rate equal to the Prime Rate plus 200 basis points ("Default
Rate") from the date due to the date of payment. As used herein, "Prime Rate"
means the prime rate of interest defined by The Wall Street Journal as the base
rate on corporate loans posted by at least 75% of the nation's 30 largest banks,
as reported in the Wall Street Journal on the first day of the calendar month in
which such late payment accrued. In addition to interest, Tenant shall pay a sum
of the greater of (i) 5% of the overdue Rent or (ii) $15.00 as a late charge.
Late charges shall constitute Additional Rent. The parties agree that the late
charge represents a fair and reasonable estimate of the costs that Landlord will
incur by reason of late payment by Tenant. Acceptance of any late charge shall
not constitute a waiver of Tenant's default with respect to the overdue amount,
or prevent Landlord from exercising any of the other rights and remedies
available to Landlord hereunder.
3.5 Tenant's TI Contribution. As additional consideration for this Lease,
within two (2) business days after Tenant receives notice of financial partner
investment committee approval of this Lease and the Property purchase, Tenant
shall deliver to Landlord Three Million One Hundred Fifty Thousand and 00/100\
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Dollars ($3,150,000.00) ("Tenant's TI Contribution"), which sum represents
Tenant's initial contribution towards the cost of the Improvements to be
constructed on Tenant's behalf pursuant to the Work Letter Agreement. Provided
Tenant is not then in default under this Lease and provided further that Tenant
has not assigned this Lease, Tenant shall be reimbursed monthly for Tenant's TI
Contribution, which monthly reimbursement shall be amortized over a 180-month
period, together with interest rate at the rate of three percent (3%) per annum,
and which monthly reimbursement shall be applied as follows: beginning on the
first day of the sixty-first (61st) calendar month of the initial Term and
continuing on the first day of each calendar month thereafter until the
expiration of the initial Term (i.e., 240th calendar month), Base Monthly Rent
shall be partially abated to reflect the monthly reimbursement for Tenant's TI
Contribution as set forth in the Base Monthly Rent Schedule described in Section
3.1, above.
3.6 Springing Security Deposit. Within 15 days after the end of each
calendar quarter, Tenant shall provide to Landlord an Officer's Certificate in
the form of Exhibit C attached hereto to the effect that either (a) the value of
Tenant's unrestricted cash and Cash Equivalents at the end of such calendar
quarter are equal to or greater than the Cash Threshold (defined below), or (b)
the value of the Tenant's unrestricted cash and Cash Equivalents at the end of
such calendar quarter are less than the Cash Threshold. As used herein, "Cash
Threshold" means the greater of the following: (1) $6,000,000.00 or (2) an
amount equal to Tenant's current annual cash burn rate, which shall be evidenced
by either (i) a cash flow analysis prepared by Tenant ("Tenant's Cash Flow
Analysis") and delivered to Landlord within fifteen (15) days following the end
of each calendar quarter showing Tenant's net cash in-flow and out-flow for the
immediately preceding twelve (12) month period, or (ii) the Net Cash Used in
Operating Activities for the immediately preceding twelve (12) month period as
shown on Tenant's Consolidated Statements of Cash Flow. For purposes of
calculating the Cash Threshold, Tenant's Cash Flow Analysis and/or Tenant's
Consolidated Statements shall exclude one-time cash contributions made by Tenant
relating to the acquisition of the Property and the initial build-out of the
Improvements per the Work Letter Agreement (i.e., Tenant's TI Contribution,
Excess Costs and Development Management Fees (as each of those terms are defined
in the Work Letter Agreement)) and one-time cash payments made by Tenant
associated with the pay-off or pay-down of its convertible debt. As used herein,
"Tenant's Consolidated Statements of Cash Flow" means those consolidated
statements of Tenant's cash flow as prepared by Tenant in accordance with GAAP
and which are publicly filed with the SEC on a quarterly basis. If the value of
Tenant's unrestricted cash and Cash Equivalents drops below the Cash Threshold,
or if Tenant fails to deliver to Landlord the required Officer's Certificate
within the above 15-day period, Tenant shall, within five (5) days after
delivery of such Officer's Certificate (or failure to deliver such Officer's
Certificate), deposit with Landlord an additional security deposit in an amount
equal to One Million Five Hundred Seventy-Five Thousand and 00/100 Dollars
($1,575,000.00) (i.e., an amount equal to the aggregate sum of Base Annual
Rental payable during the first twelve (12) months of the initial Lease Term, as
the same may be adjusted pursuant to Section 3.1) (payable in cash or in the
form of a letter of credit reasonably acceptable to Landlord in accordance with
the provisions of Section 3.6.1) (the "Springing Security Deposit"); provided,
however, in the event Tenant's unrestricted cash and Cash Equivalents once again
exceeds the Cash Threshold for two consecutive calendar quarters, Landlord shall
promptly return the Springing Security Deposit to Tenant. Failure to timely
provide such Officer's Certificate or such Springing
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Security Deposit, if required, shall be a default under this Lease.
Landlord shall invest the Springing Security Deposit in a Highly Diversified
Money Market Fund or similar yielding investment. As used herein, a "Highly
Diversified Money Market Fund" means a money market fund that is principally
invested in corporate bonds and commercial paper, such as the Evergreen
Institutional Money Market Fund.
For purposes of this Section 3.6.3, "Cash Equivalents" shall mean (a)
marketable securities issued or directly and unconditionally guaranteed by the
United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year
from the date of acquisition thereof; (b) marketable direct obligations issues
by any state of the United States of America or any political subdivision of any
such state or any public instrumentality thereof maturing within one year from
the date of acquisition thereof and, at the time of acquisition, having the
highest rating obtainable from either S&P or Moody's; (c) commercial paper
maturing no later than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least A-1 from S&P or at least P-1
from Moody's; (d) certificates of deposit or banker's acceptances maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having a rating of at least A-1 from S&P or at least P-1 from
Moody's, issued by any commerical bank orgnanized under the laws of the United
States of America or any state thereof; or (e) investment funds with a rating of
a least AAA from S&P investing 95% of their assets in securities of the type
described in clauses (a), (c) and (d) above.
3.6.1 In lieu of depositing cash as the Springing Security Deposit,
Tenant shall have the right to deliver to Landlord an unconditional,
irrevocable, standby letter of credit in the amount of the cash Springing
Security Deposit otherwise required under Section 3.6, above, which letter of
credit shall (i) be in a form reasonably acceptable to Landlord, (ii) be issued
by a financial institution selected by Tenant and reasonably acceptable to
Landlord, (iii) be for the benefit of Landlord, but shall be transferable at
Tenant's sole cost and expense by Landlord to any subsequent purchaser or
encumbrancer of the Building, (iv) be automatically renewable from year to year
throughout the Lease Term, (v) be payable by draft sight in a location
reasonably acceptable to Landlord upon presentation of a certification signed by
an officer of Landlord which states that Tenant has failed to perform any of its
monetary or non-monetary obligations, (v) allow for partial and multiple draws,
up to the face value of the letter of credit and (vi) be payable in the event
such letter of credit is not renewed on or before the date which is thirty (30)
days prior to its expiration. Any amounts of cash drawn on a letter of credit
will thereafter be treated as a cash security deposit hereunder.
3.6.2 If Tenant fails to pay Rent when required or fails to perform
any other covenant contained herein, Landlord may use or retain all or any part
of the Springing Security Deposit, if applicable, for the payment of any sum not
so paid, or for the payment of any amount which Landlord may spend or become
obligated to spend by reason of Tenant's default. If any portion of the
Springing Security Deposit is so applied or used, then Tenant shall, within 5
business days after written notice thereof, deposit an additional amount with
Landlord sufficient to restore each said Springing Security Deposit to the
amount set forth above and Tenant's failure to do so shall constitute a breach
of this Lease.
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3.6.3 If Tenant has performed all of its monetary and other
obligations hereunder at the termination of this Lease, Landlord shall return
the Springing Security Deposit, if applicable, to Tenant within 30 days after
termination of this Lease and the vacation by Tenant of the Premises as required
under this Lease, less any amounts required to restore the Premises to the
condition required in Section 7.1, below, including repairing any damage
resulting from the removal by Tenant of its trade fixtures or equipment.
3.6.4 Landlord's obligation with respect to the Springing Security
Deposit are that of a debtor and not as a trustee. Notwithstanding anything to
the contrary contained herein, Tenant expressly waives the benefits of any
statute now or hereafter in effect which would prevent Landlord from applying
all or any portion of the Springing Security Deposit to offset any future Rent
owing to Landlord at the termination of this Lease prior to the expiration date
of the Lease Term.
3.6.5 In the event of the sale of the Property, or the sale of the
entity owning such Property, Landlord's successor in interest shall assume
Landlord's obligations with respect to the sums held as security or advance rent
and notify Tenant in writing setting forth the particularity of such transfer,
including the successor's name and address. Upon such assumption and written
notification, Tenant shall have no further claim against Landlord with respect
to any such Springing Security Deposit and hereby waives all rights against
Landlord in such regard. Notwithstanding the foregoing, Landlord will remain
personally liable to the extent Landlord's successor in interest fails to assume
the Landlord's obligations with respect to the Springing Security Deposit as
specified above.
ARTICLE 4. POSSESSION
4.1 Possession. Landlord shall not be liable for damages to Tenant for
failure to deliver possession of the Premises to Tenant, except that the
commencement of the Lease Term shall be delayed until Landlord delivers
possession of the Premises to Tenant (so long as Tenant is not responsible for
such failure or delay). Landlord will use commercially reasonable efforts to
deliver possession of the Premises to Tenant by the target date for
Mechanical/Electrical Completion as set forth in the Project Schedule (defined
in the Work Letter Agreement). However, to the extent Landlord's inability to
tender possession of the Premises to Tenant in accordance with (or earlier than
provided for in) the Project Schedule is caused by Tenant's negligence or breach
of this Lease or of the Work Letter Agreement, or by other delays caused by
Tenant or its agents or contractors (collectively, "Tenant Delays"), the
commencement of the Term for all purposes under this Lease shall be accelerated
by the number of days of those Tenant Delays.
4.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS EXPRESSLY
UNDERSTOOD AND AGREED THAT LANDLORD IS LEASING THE PROPERTY TO TENANT "AS IS"
AND "WHERE IS," AND WITH ALL FAULTS AND THAT LANDLORD IS MAKING NO
REPRESENTATIONS AND WARRANTIES WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW
OR OTHERWISE, WITH RESPECT TO THE QUALITY OR PHYSICAL CONDITION OF THE PROPERTY,
THE INCOME OR EXPENSES FROM OR OF THE PROPERTY, OR THE COMPLIANCE WITH THE
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PROPERTY WITH APPLICABLE BUILDING OR FIRE CODES, ENVIRONMENTAL LAWS OR OTHER
LAWS, RULES, ORDERS OR REGULATIONS. WITHOUT LIMITING THE FOREGOING, IT IS
UNDERSTOOD AND AGREED THAT LANDLORD MAKES NO WARRANTY OF THE HABITABILITY,
SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TENANT AGREES
THAT IT ASSUMES FULL RESPONSIBILITY FOR, AND THAT IT HAS PERFORMED EXAMINATIONS
AND INVESTIGATIONS OF THE PROPERTY, INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
EXAMINATIONS AND INVESTIGATIONS FOR THE PRESENCE OF ASBESTOS, PCBS AND OTHER
HAZARDOUS SUBSTANCES, MATERIALS AND WASTES (AS THOSE TERMS MAY BE DEFINED HEREIN
OR BY APPLICABLE FEDERAL OR STATE LAWS, RULES OR REGULATIONS) ON OR IN THE
PROPERTY. WITHOUT LIMITING THE FOREGOING, TENANT IRREVOCABLY WAIVES ALL CLAIMS
AGAINST LANDLORD WITH RESPECT TO ANY ENVIRONMENTAL CONDITION, INCLUDING
CONTRIBUTION AND INDEMNITY CLAIMS, WHETHER STATUTORY OR OTHERWISE. TENANT
ASSUMES FULL RESPONSIBILITY FOR ALL COSTS AND EXPENSES REQUIRED TO CAUSE THE
PROPERTY TO COMPLY WITH ALL APPLICABLE BUILDING AND FIRE CODES, MUNICIPAL
ORDINANCES, ENVIRONMENTAL LAWS AND OTHER LAWS, RULES, ORDERS, AND REGULATIONS.
FOR INFORMATIONAL PURPOSES ONLY, PRIOR TO THE SETTLEMENT DATE IN CONNECTION WITH
LANDLORD'S PURCHASE OF THE PROPERTY, LANDLORD SHALL PROVIDE TENANT WITH COPIES
OF ANY RELEVANT THIRD PARTY REPORTS RELATING TO THE EXPECTED CONDITION OF THE
PROPERTY AT THE TIME OF SETTLEMENT.
4.3 Retail Delivery Sublease. Notwithstanding anything to the contrary
contained in this Lease, Tenant confirms that a portion of the Premises
consisting of approximately 23,600 square feet of space is currently leased and
occupied by Home Delivery Enterprises, Inc., d/b/a Retail Delivery Service, Inc.
("Retail Delivery") pursuant to the terms of that certain Lease, dated September
22, 2006, between Landlord, as successor in interest to San Tomas Properties,
LLC, and Retail Delivery (the "Retail Delivery Lease"). While Tenant will be
leasing the entire Building (i.e., 73,025 rentable square feet) and will be
responsible for paying Rent for the entire Building pursuant to the terms of
this Lease, Tenant will initially only occupy approximately 49,425 rentable
square feet of space. Accordingly, effective as of the Commencement Date, the
Retail Delivery Lease shall be terminated and concurrently with such
termination, Tenant shall enter into a sublease with Retail Delivery in a form
reasonably acceptable to Landlord, Tenant and Retail Delivery pursuant to which
Tenant shall sublease the Retail Delivery Space to Retail Delivery (the "Retail
Delivery Sublease").
4.4 Future Subleasing. Landlord acknowledges that Tenant intends to
sublease an additional portion of the Premises consisting of approximately
15,000 to 20,000 square feet of space. The foregoing is merely an
acknowledgement by Landlord of Tenant's intent to sublease and the foregoing
shall not be construed as Landlord's consent to any such subleasing of space
within the Premises, it being understood by Tenant that any such future
subleasing of space within the Premises shall be subject to the terms and
conditions set forth in Article 15.
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ARTICLE 5. USE
5.1 Permitted Use of Premises. The Premises shall be used and occupied by
Tenant solely for laboratory, administration, pharmaceutical, warehouse and
related health care uses. Landlord acknowledges that in connection with the
foregoing, Tenant will also be operating from the Premises under a radiological
materials license to be obtained by Tenant. The Premises are to be used for no
other purposes without first obtaining the consent of Landlord, which consent
may be withheld in Landlord's sole, subjective discretion.
5.2 Compliance with Laws. Tenant, at Tenant's sole expense, shall promptly
comply, or cause compliance, with all laws, ordinances, zoning restrictions,
rules, regulations, orders and requirements of any duly constituted public
authorities now or hereafter affecting the Premises, including the use, safety,
cleanliness and occupation of the Premises.
5.3 Prohibited Uses. Tenant shall not do, bring or keep anything in or
about the Property that will cause a cancellation of any insurance covering the
Property that is carried by Landlord and in effect as of the date Landlord
acquires fee title to the Property, provided that Tenant will not be deemed to
be in violation of this Section 5.3 if Landlord subsequently modifies or
otherwise obtains new insurance coverage for the Property and as a result of
such modified or new insurance policies (as opposed to any change in use by
Tenant), Tenant's use of the Property causes or will cause a cancellation of
Landlord's modified or new insurance policies. Tenant shall not use the Property
in any manner that will constitute waste, nuisance or unreasonable annoyance to
owners or occupants of nearby properties. Tenant shall not do anything on the
Property that will cause material damage to the Building. Tenant shall place no
loads upon the floors, walls or ceiling of the Building in excess of the maximum
designed load specified by Landlord or which may materially damage the Building.
No machinery, apparatus, or other appliance shall be used or operated in or on
the Property that will vibrate or shake the Property.
5.4 Rules and Regulations. Tenant shall comply with all reasonable
nondiscriminatory rules and regulations (the "Rules and Regulations") from time
to time adopted by Landlord with respect to the Property. Notwithstanding
anything to the contrary contained in this Lease, if any rule or regulation is
in conflict with any term, covenant or condition of this Lease, this Lease shall
prevail. In addition, no such rule or regulation, or any subsequent amendment
thereto adopted by Landlord, shall in any way materially alter, reduce or
adversely affect any of Tenant's rights or enlarge Tenant's obligations under
this Lease.
ARTICLE 6. ALTERATIONS AND ADDITIONS
6.1 Prohibited Alterations. Except for the Improvements specifically
contemplated to be constructed pursuant to the Work Letter Agreement attached
hereto as Exhibit D, Tenant shall not make any alterations, improvements or
additions to the Property, without obtaining Landlord's prior written consent,
except Tenant may make non-structural alterations to the interior of the
Premises (excluding the roof) without such consent but upon notice to Landlord,
as long as they are not visible from the outside, do not involve puncturing,
relocating or removing the roof or any existing walls, will not affect the
electrical, plumbing, HVAC, and/or life safety systems, and the cost thereof
does not exceed $50,000 per occurance or an aggregate amount of $250,000 in any
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12-month period. Landlord shall not unreasonably withhold such consent;
provided, however, in the event such alterations affect the structure of the
Premises or the electrical, plumbing, HVAC and/or life safety systems of the
Premises (collectively, the "Building Systems"), or may be otherwise visible
from the outside of the Premises, Landlord's consent may be granted or withheld
in Landlord's sole and absolute discretion. Notwithstanding the foregoing,
Landlord's consent shall not be unreasonably withheld with regard to any
proposed alterations affecting the Building Systems within Tenant's cGMP suite
to the extent such alterations are required to operate such cGMP suite for
Tenant's proposed use. Any such improvements, excepting movable furniture and
trade fixtures (as that term is limited in Section 6.3, below) but including,
without limitation, any non-trade fixtures and Tenant Funded Improvements
(defined below), shall become part of the realty and belong to Landlord upon the
expiration of the Term unless Landlord notifies Tenant at least thirty (30) days
prior to the expiration of the Term that Tenant must remove such improvements.
If Landlord notifies Tenant of such requirement, Tenant shall cause all such
improvements to be removed prior to the expiration of the Term and shall repair
any and all damage caused to the Premises resulting from such removal and
otherwise surrender the Premises in the condition required under Section 7.1 at
Tenant's sole cost and expense. If Tenant fails to repair any such damage prior
to the expiration of the Term, Landlord may, but shall not be obligated to,
perform such repairs on Tenant's behalf, in which case, Tenant shall reimburse
Landlord for all costs incurred by Landlord within five (5) days after receipt
of written demand from Landlord. All alterations and improvements shall be
properly permitted and installed at Tenant's sole cost, by a licensed
contractor, in a good and workmanlike manner, and in conformity with the laws of
all applicable duly constituted public authorities. Each such licensed
contractor and any subcontractor that performs work with a cost greater than
$50,000 or that will affect the electrical, plumbing, HVAC and/or life safety
systems of the Premises, shall be acceptable to Landlord in its reasonable
discretion. All contractors or subcontractors performing work at the Premises
shall maintain the insurance required under Lease Rider No. 1 and shall provide
Landlord with copies of insurance certificates or other evidence reasonably
acceptable to Landlord evidencing the existence of such insurance coverage. Any
alterations that Tenant shall desire to make and which require the consent of
Landlord shall be presented to Landlord in written form with detailed plans,
which plans shall be subject to Landlord's reasonable approval. Tenant shall:
(i) acquire all applicable governmental permits; (ii) furnish Landlord with
copies of both the permits and the plans and specifications before the
commencement of the work, and (iii) comply with all conditions of said permits
in a prompt and expeditious manner. Any alterations shall be performed in a
workmanlike manner with good and sufficient materials. Tenant shall promptly
upon completion furnish Landlord with as-built plans and specifications,
provided that Landlord shall treat such as-built plans and specifications as
confidential and shall inform all parties to whom Landlord may provide copies
thereof of the confidential nature of such documents.
6.2 Notice of Commencement. At least 20 days prior to commencing any
work relating to any alterations, improvements or additions approved by
Landlord, Tenant shall notify Landlord in writing of the expected date of
commencement. Landlord shall have the right at any time thereafter to post and
maintain on the Premises such notices as Landlord reasonably deems necessary to
protect Landlord and the Premises from mechanics' liens, materialmen's liens or
any other liens. Tenant shall pay, when due, all claims for labor or materials
furnished to or for Tenant for use in improving the Premises. Tenant shall not
permit any mechanics' or materialmen's liens to be levied against the Premises
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arising out of work performed, materials furnished, or obligations to have been
performed on the Premises by or at the request of Tenant. Tenant hereby
indemnifies and holds Landlord harmless against loss, damage, attorneys' fees
and all other expenses on account of claims of lien of laborers or materialmen
or others for work performed or materials or supplies furnished for Tenant or
its contractors, agents or employees. If Tenant fails to remove or bond any
lien(s) filed against the Premises in connection with any work performed or any
work claimed to have been performed by or at the direction of Tenant within 10
days from the date of the lien(s) filing, Landlord may remove such lien(s) at
Tenant's expense and Tenant shall reimburse Landlord for all costs incurred by
Landlord in connection with the removal of the lien(s), which amount shall be
deemed Additional Rent, and shall include, without limitation, all sums
disbursed, incurred or deposited by Landlord, including Landlord's costs,
expenses and actual attorneys' fees, with interest thereon, at the Default Rate
from the date of expenditure. If Tenant shall contest the validity of any such
lien, claim or demand, then Tenant shall, at its sole expense defend and protect
itself, Landlord and the Premises against the same and shall pay and satisfy any
such judgment that may be rendered thereon before the enforcement thereof. If
Landlord shall require, Tenant shall furnish a surety bond in an amount equal to
150% of the amount of such contested lien, claim or demand, indemnifying
Landlord against liability for the same. If Landlord elects to participate in
any such action, Tenant shall pay Landlord's attorneys' fees and costs.
6.3 Trade Fixtures. Tenant may install trade fixtures, machinery or other
trade equipment in conformance with the ordinances of all applicable duly
constituted public authorities. Subject to the terms of this Section 6.3, Tenant
may remove any of such trade fixtures or machinery upon the termination of this
Lease. In the event that Tenant installs improvements, machinery or trade
fixtures, or makes any alterations, Tenant shall, at Landlord's option, return
the Premises on termination of this Lease to the condition required under
Section 7.1, below, including the removal of improvements or alterations
approved by Landlord in Section 6.1 and not otherwise elected to be retained by
Landlord. Tenant shall, in any event, repair any damage resulting from the
removal of machinery or trade fixtures of Tenant. If Tenant fails to repair any
such damage prior to the expiration of the Term, Landlord may, but shall not be
obligated to, perform such repairs on Tenant's behalf, in which case, Tenant
shall reimburse Landlord for all costs incurred by Landlord within five (5) days
after receipt of written demand from Landlord. Notwithstanding anything to the
contrary contained in this Lease, the terms "trade fixtures", "machinery" or
"trade equipment" as used both in Article 6 and otherwise in this Lease shall
mean Tenant's specific trade fixtures, business equipment and personal property
which can be removed without substantial damage to the Premises (including,
without limitation, the "Movable Equipment" listed on page 1 of Schedule 1
(Project Budget) attached to the Work Letter Agreement, which "Movable
Equipment" shall remain the sole property of Tenant), and shall not include,
without limitation and without regard to whether the following can be removed
without substantial damage to the Premises, any fill-finish suites, autoclaves
and other similar items, which items shall become part of the realty and belong
to Landlord upon the expiration of the Term unless Landlord otherwise elects
pursuant to Section 6.1, above.
6.4 Tenant Funded Improvements. Notwithstanding the foregoing, if Tenant
funds 100% of the "phase 2" or "phase 3" improvements (i.e., improvements to the
Premises to be constructed after the thirty-sixth (36th) full calendar month of
the initial Lease Term) (collectively, "Tenant Funded Improvements"), Tenant
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confirms that such Tenant Funded Improvements shall not be included when
calculating the fair market value of the Property in connection with the
Purchase Option set forth in Articles 35 and 37, it being understood that such
calculation shall be conducted as if the Tenant Funded Improvements had not been
made to the Premises.
ARTICLE 7. SURRENDER OF PREMISES
7.1 Conditions upon Surrender. Upon the expiration or earlier termination
of this Lease, Tenant shall surrender the Premises to Landlord in its condition
existing as of the Commencement Date, normal wear and tear, casualty,
condemnation and acts of God excepted, with all interior walls in good repair
and repainted if marked, all carpets shampooed and cleaned, the HVAC equipment,
plumbing, electrical and other mechanical installations in good operating order,
and all floors cleaned and waxed, all to the reasonable satisfaction of
Landlord. Tenant shall remove from Premises all of Tenant's alterations which
Landlord requires Tenant to remove pursuant to Section 6.1 and all Tenant's
personal property, and shall repair any damage and perform any restoration work
caused by such removal. In addition, , Tenant shall, at Landlord's sole option
and at Tenant's sole cost and expense, either (i) remove all cabling and wiring
existing within the Premises and within the common ducts and shafts of the
Building ("Building Cable"), using all necessary care in removing the Building
Cable in order to avoid any damage to the Building, or (ii) not remove all or
any portion of the Building Cable, provided that Tenant shall leave any Building
Cable clearly labeled and in good working order with all connections intact.
Tenant shall be solely liable for any damage or disruption of service caused by
the removal or labeling of any Building Cable by Tenant. Landlord and Tenant
shall each initial and attach a conceptual floor plan of the Premises to this
Lease, to be incorporated herein as Exhibit B. Said floor plan shall describe,
among other things, those interior improvements which are to remain in the
Premises upon expiration, or earlier termination, of this Lease. It is the
intent of the parties that the condition of the Premises, after Tenant's
removal, shall be in the same condition as existed as of the Commencement Date,
together with any alterations that Landlord has approved pursuant to Section 6.1
and which Landlord has elected to retain at the Premises. If Tenant fails to
remove any alterations that Landlord requires Tenant to remove and Tenant's
personal property which Tenant is authorized and obligated to remove pursuant to
the above, and such failure continues after the termination of the Lease,
Landlord may retain such property and all rights of Tenant with respect to it
shall cease, or Landlord may place all or any portion of such property in public
storage for Tenant's account. Tenant shall pay to Landlord upon demand costs of
removal of such alterations and Tenant's personal property and storage and
transportation costs of same, and the cost of repairing and restoring the
Premises, together with attorneys' fees and interest at the Default Rate on said
amounts, from the date of expenditure by Landlord. If the Premises are not so
surrendered at the termination of this Lease, Landlord may, in its sole
discretion, either (a) upon written notice to Tenant, treat Tenant as a
month-to-month tenant at will, subject to all the terms, covenants and
conditions of this Lease, or (b) proceed with an unlawful detainer action and
pursue all other rights and remedies available to Landlord.
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ARTICLE 8. UTILITIES AND SERVICES
8.1 Utilities. Tenant shall make all arrangements for and pay for all
water, sewer, gas, heat, light, power, telephone service and any other service
or utility Tenant requires at the Premises. Landlord shall not be liable for any
failure or interruption of any utility service being furnished to the Premises,
and no such failure or interruption shall entitle Tenant to terminate this
Lease.
8.2 Landlord Service. Tenant confirms that Landlord will not provide any
of the utilities described in Section 8.1, above and that Tenant shall be solely
responsible for such utilities. If, however, Tenant fails to arrange for the
provisions of such utilities and Landlord, at its sole option, elects to furnish
those utilities, Tenant shall pay to Landlord the cost thereof in the manner set
forth in Section 12.9. Tenant's cost shall be the total cost shown on utility
meters servicing the Premises and any extraordinary use which may be made by
Tenant.
ARTICLE 9. INDEMNIFICATION
9.1 Indemnity of Landlord. Tenant hereby agrees to indemnify, defend (with
attorneys approved by Landlord), protect, and hold Landlord and Landlord's
agents, employees, directors, officers, managers, members, partners, affiliates,
independent contracts and property managers ("Landlord's Agents"), harmless from
any and all liabilities, costs, expenses and losses by reason of injury to
person or property ("Losses"), caused by, arising out of, or related to, the
condition of the Property or the use or occupancy of the Property by Tenant, its
agents, directors, officers, managers, members, partners, affiliates,
independent contracts and property managers, or invitees ("Tenant's Agents"),
including without limitation, any liability for injury to the person or property
of Tenant or Tenant's Agents, but excepting any Loss resulting from the willful
breach of the Lease by Landlord or the gross negligence or willful misconduct of
Landlord or Landlord's Agents. Tenant's obligation hereunder shall survive the
termination of this Lease with respect to any claims or liability arising in
connection with any event occurring prior to such termination.
9.2 Waiver of Claims. Tenant, as a material part of the consideration
rendered to Landlord in entering into this Lease, hereby waives all claims
against Landlord for damages to goods, wares, machinery, trade fixtures, or
other property of Tenant, Tenant's Agents or any other person in or about the
Property, whether such damage or injury is caused by or results from Landlord's
negligence, fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, fire sprinklers, wires,
appliances, plumbing, HVAC or lighting fixtures, or from any other cause,
whether the said injury or damage results from conditions arising upon the
Property, or from other sources or places, but excepting any claims resulting
from the gross negligence or willful misconduct of Landlord or Landlord's
Agents. Notwithstanding Landlord's negligence or breach of this Lease, Landlord
shall under no circumstances be liable for loss of profits or special,
incidental or consequential damages arising therefrom.
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9.3 Landlord Indemnification. Landlord agrees to indemnify Tenant and hold
it harmless from any and all loss, cost, damage, expense and liability
(including without limitation court costs and reasonable attorneys' fees)
incurred in connection with or arising from any Losses, caused by the gross
negligence or willful misconduct of Landlord and/or any of Landlord's Agents.
The obligations of Landlord under this Section 9.3 shall survive the termination
of this Lease with respect to any claims or liability arising in connection with
any event occurring prior to such termination.
9.4 Claims for Indemnification. If any indemnitee under Sections 9.2 or
9.3 above (an "Indemnitee") shall believe that such Indemnitee is entitled to
indemnification pursuant to this Article 9 in respect of any Losses, such
Indemnitee shall give the appropriate indemnifying party (each, as applicable,
an "Indemnifying Party") prompt written notice thereof. Any such notice shall
set forth in reasonable detail and to the extent then known the basis for such
claim for indemnification. The failure of such Indemnitee to give notice of any
claim for indemnification promptly shall not adversely affect such Indemnitee's
right to indemnity hereunder except to the extent that such failure adversely
affects the right of the Indemnifying Party to assert any reasonable defense to
such claim.
9.5 Defense of Claims. In connection with any claim which may give rise to
indemnity under this Article 9 resulting from or arising out of any claim or
proceeding against an Indemnitee by a person that is not a party hereto, the
Indemnifying Party shall (unless such Indemnitee elects not to seek indemnity
hereunder for such claim), upon written notice to the relevant Indemnitee,
assume the defense of any such claim or proceeding. The Indemnifying Party shall
select counsel reasonably acceptable to such Indemnitee to conduct the defense
of such claim or proceeding, shall take all steps necessary in the defense or
settlement thereof and shall at all times diligently and promptly perform
resolution thereof. Without the prior written consent of the Indemnitee, which
consent shall not be unreasonably withheld, the Indemnifying Party will not
enter into any settlement of, or any claim or proceeding which would lead to
liability or create any financial or other obligation on the part of the
Indemnitee for which the Indemnitee is not entitled to indemnification
hereunder. Without the prior written consent of the Indemnifying Party, which
consent shall not be unreasonably withheld, the Indemnitee will not enter into
any settlement or any claim or proceeding which would lead to liability or
create any financial or other obligation on the part of the Indemnifying Party
unless the Indemnifying Party has failed or refused to acknowledge
responsibility for or defend such claim or proceeding within a reasonable period
of time after notice is provided pursuant to Section 9.4.
ARTICLE 10. INSURANCE
10.1 Landlord's Insurance. Landlord shall maintain, at Tenant's sole
expense, which Tenant shall pay to Landlord as Additional Rent in the manner set
forth in Section 12.9, a policy or policies of insurance protecting Landlord
against the following:
10.1.1 Fire and other perils normally included within the
classification of fire and extended coverage, together with insurance against
vandalism and malicious mischief, to the extent of the full replacement cost of
the Premises, including earthquake and flood coverage, exclusive of trade
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fixtures, equipment and improvements insured by Tenant, with agreed value, full
replacement and other endorsements which Landlord may reasonably elect to
maintain.
10.1.2 Eighteen (18) months of rental loss insurance and to the
extent of 100% of the gross rentals from the Building of which the Premises
constitute a part.
10.1.3 Public liability and property damage insurance with respect
to common areas in amounts (i) not less than $1,000,000 for injury or death to
any one person in any one accident or occurrence, (ii) not less than $2,000,000
for injury or death to more than one person in any one accident or occurrence,
(iii) not less than $4,000,000 of excess umbrella liability insurance, and, (iv)
not less than $200,000 per occurrence for damage to Premises.
10.1.4 At Landlord's sole option, environmental liability or
environmental clean-up/remediation insurance in such amounts and with such
deductibles and other provisions as Landlord may determine in its reasonable
discretion.
10.2 Payment. Tenant shall pay to Landlord in the manner set forth in
Section 12.9, the cost of insurance required in Section 10.1. To the extent that
any such insurance is maintained pursuant to a blanket or similar policy of
insurance, then the cost thereof shall be equitably allocated to the Property by
Landlord.
10.3 Tenant's Insurance. Tenant shall maintain at its sole cost and
expense, in force the policy or policies of insurance described in Lease Rider
No. 1 attached hereto and incorporated herein by this reference.
10.4 Release of Subrogation Rights. Landlord and Tenant each hereby waive
any and every claim for recovery from the other for any and all loss of or
damage to the Building or Premises or to the contents thereof, which loss or
damage is covered by valid and collectible property insurance policies. Landlord
waives any and every claim against Tenant for any and all loss of or damage to
the Building or the Premises or contents thereof, which would have been covered
had the insurance policies required to be maintained by Landlord by this Lease
been in force, to the extent that such loss or damage would have been
recoverable under such insurance policies. Tenant waives any and every claim
against Landlord for any and all loss of, or damage to, the Building or Premises
or the contents thereof which would have been covered had tenant maintained the
insurance policies required to be maintained by tenant under this Lease been in
force, to the extent that such loss or damage would have been recoverable under
such insurance policies. Inasmuch as this mutual waiver will preclude the
assignment of any such claim by subrogation (or otherwise) to an insurance
company (or any other person), Landlord and Tenant each agree to give to each
insurance company which has issued, or in the future may issue, to it policies
of property insurance, written notice of the terms of this mutual waiver, and to
have said insurance policies properly endorsed, if necessary, to prevent the
invalidation of said insurance coverage by reason of said waiver.
10.5 Failure to Provide Insurance. Tenant acknowledges that any failure on
its part to obtain or maintain the insurance required herein will expose
Landlord to risk and potentially cause Landlord to incur costs not contemplated
by this Lease, the extent of which will be extremely difficult to ascertain.
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Accordingly, for any month or portion thereof the Tenant does not maintain the
required insurance and/or does not provide Landlord with the required binders or
certificates evidencing the existence of the required insurance, the Base Annual
Rental shall be automatically increased, without any requirement for notice to
Tenant, by an amount equal to ten percent (10%) of the then existing Base Annual
Rental; provided, however, that if Tenant thereafter provides Landlord with
evidence of the insurance required by this Lease and such evidence is reasonably
acceptable to Landlord, the Base Annual Rental shall be adjusted to the then
required Base Annual Rental set forth in Section 3.1 of this Lease. The parties
agree that such increase in the Base Annual Rental represents fair and
reasonable compensation for the additional risk costs that Landlord will incur
by reason of Tenant's failure to maintain the required insurance. Such increase
in Base Annual Rental shall in no event constitute a waiver of Tenant's default
or breach with respect of the failure to maintain such insurance, prevent the
exercise of any of the other rights and remedies granted hereunder, nor relieve
Tenant of it's obligations to maintain the insurance specified in this Lease.
ARTICLE 11. TAXES
11.1 Personal Property Taxes. Tenant shall pay prior to delinquency all
taxes, assessments, license fees, and other public charges levied, assessed or
imposed or which become payable during the term of this Lease upon any trade
fixtures, furnishings, equipment and all other personal property of Tenant
installed or located in the Premises. Whenever possible, Tenant shall cause said
trade fixtures, furnishings, equipment and personal property to be separately
assessed. If, however, any or all of said items shall be assessed and taxed with
the real property, Tenant shall pay to Landlord such taxes as are attributable
to Tenant's trade fixtures, furnishings, equipment and personal property within
15 days after receipt of an invoice from Landlord advising Tenant of the taxes
applicable to Tenant's property.
11.2 Real Property Taxes. Tenant shall also pay at least 20 days before
due any and all real estate taxes, as defined in Section 11.3, assessed or
imposed, or which become a lien upon or become chargeable against or payable in
connection with the Property. Within three business days of such payment, Tenant
shall provide Landlord evidence of such payment in a form reasonably acceptable
to Landlord. Notwithstanding the foregoing, Tenant shall have the right to
contest the amount of any real estate taxes assessed against the Property at
Tenant's sole cost and expense, provided that Tenant shall nevertheless timely
pay the disputed amount as required in this Lease and shall otherwise indemnify,
defend and hold Landlord harmless from any claims, losses and liabilities
arising out of such contest. In the event that the Property is not separately
assessed, Tenant shall pay an equitable proportion of the real estate taxes and
assessments for all the land and improvements included within the tax parcel(s)
assessed, such proportion shall be determined by Landlord from the respective
valuations assigned in the assessor's worksheets and such other information as
is reasonably available to Landlord, including the Building and any special
improvements constructed for the benefit of Tenant. Real estate taxes for the
last year of the term of this Lease shall be prorated between Landlord and
Tenant as of the expiration date of the term. With respect to any assessments
which may be levied against or upon the Property, or which under the laws then
in force may be evidenced by improvement or other bonds and may be paid in
annual installments, only the amount of such annual installment, with
appropriate proration for any partial year, and interest thereon, shall be
included within a computation of taxes and assessments levied against the
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Property. In the event that Tenant incurs a late charge on the payment of the
Base Annual Rental or fails to pay the real property taxes within 20 days before
due, in addition to Landlord's remedies set forth in Section 18.1, Landlord may
estimate the current real property taxes, and require that such taxes be paid in
advance to Landlord by Tenant monthly in advance with the payment of the Base
Annual Rental. Such monthly payment shall be equal to the amount of the
estimated installment of taxes divided by the number of months remaining before
the month in which such installment becomes delinquent. When the actual amount
of the applicable tax bill is known, the amount of such equal monthly advance
payments shall be adjusted as required to provide the funds needed to pay the
applicable taxes. If the amount collected by Landlord is insufficient to pay
such real estate taxes when due, Tenant shall pay Landlord, upon demand, such
additional sum as is necessary. Advance payments may be intermingled with other
moneys of Landlord and shall not bear interest. In the event of a breach by
Tenant in the performance of its obligations under this Lease, then any such
advance payments may be treated by Landlord as an additional security deposit.
11.3 Definition of Taxes. For purposes of this Lease, "taxes" shall also
include each of the following:
11.3.1 Any form of assessment, license fee, license tax, bond or
improvement bond, business license tax, commercial rental tax, levy, charge,
penalty, or tax, imposed by any authority having the direct power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement or special district
thereof, as against any legal or equitable interest of Landlord in the Property;
11.3.2 Any tax on Landlord's right to Rent or other income from the
Property or as against Landlord's business of leasing the Property;
11.3.3 Any assessment, tax, fee, levy or charge in substitution,
partially or totally, of any assessment, tax, fee, levy or charge previously
included with the definition of real property tax. It is the intention of Tenant
and Landlord that all such new and increased assessments, taxes, fees, levies
and charges and all similar assessments, taxes, fees, levies and charges be
included within the definition of real property tax for purposes of this Lease;
11.3.4 Any tax allocable to or measured by the area of the Property
or the rental payable hereunder, including without limitation, any gross income
tax or excise tax levied by the State, any political subdivision thereof, city,
or federal government, with respect to the receipt of such rental, or upon or
with respect to the possession, leasing, operating, management, maintenance,
alteration, repair, use of occupancy by Tenant of the Property, or any portion
thereof,
11.3.5 Any tax upon this transaction or any document to which Tenant
is a party, creating or transferring an interest or an estate in the Property;
and
11.3.6 Any tax, fee, levy, assessment or charge, or any increase
therein: (i) imposed by reason of events occurring during the term of this
Lease, including but not limited to, a change in the ownership of the Property,
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and (ii) levied or assessed on machinery or equipment, if any, provided by
Landlord to Tenant pursuant to this Lease.
11.3.7 "Real estate taxes" shall not include Landlord's federal or
state income, franchise, inheritance or estate taxes.
ARTICLE 12. COMMON AREAS
12.1 Common Area. Common areas shall include all areas within the Property
outside the exterior boundaries of the buildings situated thereon, including,
but not limited to, streets, driveways, parking areas, truckways, delivery
passages, loading doors, sidewalks, ramps, open and closed courts, landscaped
and planted areas, exterior stairways, retaining and decorative walls and
planters, and other areas provided for the for the common use of Landlord and
Tenant, their employees and invitees.
12.2 Maintenance. Tenant shall maintain said common areas in a neat, clean
and orderly condition, properly lighted and landscaped as Landlord shall
determine, including, but not limited to, general maintenance, repairs, pest
control, resurfacing, painting, restriping, cleaning, sweeping and trash
removal; maintenance and repair of sidewalks and curbs; sprinkler systems,
planting and landscaping; lighting, water, music and other utilities;
directional signs and other markers and bumpers; maintenance and repair of any
fire protection systems, automatic sprinkler systems, lighting systems, storm
drainage systems and any other utility systems; personnel to implement such
service and to police the common areas; and police and fire protection services.
12.3 Care of Premises. Tenant shall, at its sole cost and expense keep the
Premises and exterior and interior portions of windows, doors, and all other
glass or plate glass fixtures in a working neat, clean, sanitary, safe and good
condition and repair, and shall keep the Premises free from trash, rubbish and
dirt. Tenant shall make all repairs or replacements thereon or thereto, whether
ordinary or extraordinary.
12.4 Maintenance of Equipment. Tenant shall, at its sole cost and expense,
keep and maintain all utilities, fixtures and mechanical equipment used, or
available for use, by Tenant (wherever located) in good working order, condition
and repair. Said items shall include, but are not limited to, all plumbing or
sewage facilities in the Premises, doors, locks and closing devices, windows,
including glass, lights, electric systems and equipment, heating and air
conditioning systems and equipment, and all other appliances and equipment of
every kind.
12.5 Roof, Walls, Foundation and Structural. At its cost and expense,
Tenant will keep in good condition and repair the roof, foundation, load bearing
walls and structural elements of the Premises to keep the Premises in the same
condition and repair existing as of the Commencement Date, normal wear and tear,
casualty and condemnation excepted.
12.6 Compliance with Governmental Regulations. Tenant shall, at its sole
cost and expense, promptly and properly observe and comply with, including the
making by Tenant of any alterations to the Premises, all present and future
orders, regulations, directions, rules, laws ordinances, and requirements of all
governmental authorities (including, without limitation, state, municipal,
county and federal governments and their departments, bureaus, boards and
officials) arising from the use or occupy of, applicable to, the Property.
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12.7 Service Contracts. Tenant shall, at Tenant's sole cost and expense,
maintain in good condition and repair, the following equipment and improvements,
if any, if and when installed on the Premises: (i) HVAC equipment, (ii) boiler,
and pressure vessels, (iii) fire extinguishing systems, including fire alarm
and/or smoke detection, (iv) landscaping and irrigation system, (v) roof
covering and drains, (vi) clarifiers, (vii) basic utility feed to the perimeter
of the Building, and (viii) any other equipment, if reasonably required by
Landlord. To the extent Tenant elects to maintain the foregoing items through
specific service contracts, Tenant shall engage only those contractors
specializing and experienced in the maintenance of the foregoing equipment and
improvements and shall provide Landlord with copies of any and all such service
contracts. If Landlord reasonably determines that the foregoing equipment and
improvements are not being properly maintained, Landlord may, but shall not be
obligated, upon ten (10) days prior written notice to Tenant, to maintain and if
necessary, procure any and all service contracts to maintain the foregoing
equipment and improvements, and if Landlord so elects, Tenant shall reimburse
Landlord, upon demand, for the cost thereof.
12.8 Action by Landlord if Tenant Fails to Maintain. If Tenant refuses or
neglects to repair or maintain the Premises as required by Sections 12.2, 12.3,
12.4, 12.5, 12.6 and 12.7 to the reasonable satisfaction of Landlord, Landlord,
at any time following 10 days from the date on which Landlord shall make written
demand on Tenant to affect such repair or maintenance (or immediately without
notice in the event of an emergency), may, but shall not have the obligation to,
make such repair and/or maintenance (without liability to Tenant for any loss or
damage which may occur to Tenant's merchandise, fixtures or other personal
property, or to Tenant's business by reason thereof) and upon completion
thereof, Tenant shall pay to Landlord as Additional Rent Landlord's costs for
making such repairs, plus interest at the Default Rate upon demand herefore.
Moreover, Tenant's failure to pay any of the charges in connection with the
performance of its maintenance and repair obligations under this Lease will
constitute a material default under the Lease.
12.9 Tenant's Costs. Within 60 days after the Commencement Date (or as
soon as reasonably practicable thereafter), and within 60 days after the
beginning of each calendar year (or as soon as reasonably practicable
thereafter), Landlord shall give Tenant a written estimate, for such calendar
year, of Tenant's share of the cost of utilities, if not separately metered and
paid by Tenant, insurance provided by Landlord and expenses in connection with
maintenance of common areas and any other maintenance Landlord elects to perform
pursuant to the terms of this Lease. Tenant shall pay such estimated amount to
Landlord in equal monthly installments, in advance. Within 90 days after the end
of each calendar year (or as soon as reasonably practicable thereafter),
Landlord shall furnish to Tenant a statement showing in reasonable detail the
costs incurred by Landlord for the operation and maintenance of the Premises
during such year (the "Annual Statement"), and Tenant shall pay to Landlord
Tenant's proportionate share of the cost incurred in excess of the payments made
by Tenant within 10 days of receipt of such statement. In the event that the
payments made by Tenant for the operation and maintenance of the Premises exceed
Tenant's share of the cost of same, such amount shall be credited by Landlord to
the Rent or other charges next due and owing, provided that, if the Lease term
has expired, Landlord shall accompany said statement with the amount due Tenant.
Notwithstanding the foregoing, Landlord's failure to deliver any statement under
this Section 12.9, including any Annual Statement, shall not constitute a waiver
of Landlord's right to collect any sums owed by Tenant pursuant to the terms of
this Section 12.9.
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ARTICLE 13. SIGNS AND ADVERTISING
13.1 Signs. To the extent Tenant elects to place signage at the Premises,
Landlord shall designate the location on the Premises for one or more exterior
Tenant identification sign(s) and Tenant shall not display or erect any other
signs, displays, or other advertising materials that are visible from the
exterior of the building. The size, design, and other physical aspects of the
permitted sign(s) shall be subject to the Landlord's written approval prior to
installation, which approval will not unreasonably be withheld, any covenants,
conditions, or restrictions encumbering the Premises, any applicable municipal
or other governmental permits and approvals. The cost of the sign(s), including
but not limited to the permitting, installation, maintenance and removal thereof
shall be at Tenant's sole cost and expense. If Tenant fails to maintain its
sign(s), or if Tenant fails to remove such sign(s) upon termination of the
Lease, or fails to repair any damage caused by such removal (including without
limitation, painting the building, if required by Landlord), Landlord may do so
at Tenant's expense. Tenant shall on demand reimburse Landlord for all costs
incurred by Landlord to effect such removal, which amounts shall be deemed
Additional Rent and shall include without limitation, all sums disbursed,
incurred or deposited by Landlord, including Landlord's costs, expenses and
actual attorneys' fees with interest thereon. By executing this Lease, Landlord
hereby approves the signage currently existing on the Premises. Tenant's signage
rights set forth in this Section 13.1 are personal to the originally named
Tenant under this Lease and shall not be transferred in the event Tenant assigns
this Lease or subleases the Premises unless Landlord otherwise consents to the
transfer of Tenant signage rights under this Section 13.1, which consent may be
withheld in Landlord's sole, subjective discretion.
ARTICLE 14. ENTRY BY LANDLORD
14.1 Entry by Landlord. Tenant shall permit Landlord and Landlord's
Agents, prospective purchasers, lenders, investors, contractors, and within
eighteen (18) months prior to the expiration of this Lease, prospective tenants,
to enter the Premises at all reasonable times, upon giving Tenant a 24 hour
prior notice, except in the event of an emergency in which case the 24 hour
prior notice is not required: (i) for the purpose of inspecting the same, (ii)
for the purpose of maintenance, repairs, alterations, or additions to any
portion of the Building, including the erection and maintenance of such
scaffolding, canopies, fences, and props as may be required, (iii) for the
purposes of performing any of Tenant's obligations under this Lease, or (iv) for
the purpose of posting notices of non-responsibility for alterations, additions,
or repairs. In connection with the foregoing, Landlord acknowledges that due to
the proprietary and confidential nature of certain portions of the Premises,
Landlord's access pursuant to this Section 14.1 to the cGMP classified space and
other designated areas of the Premises (which Tenant shall designate in writing
delivered to Landlord prior to the Commencement Date) (collectively, the
"Classified Space") may be limited such that Landlord may only access the
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Classified Space when accompanied by certain specified representatives of Tenant
and in accordance with Tenant's standard entry procedures for the Premises,
provided that so long as Landlord complies with the foregoing with regard to the
Classified Space, Tenant shall not otherwise unreasonably deny Landlord access
to the Classified Space. Provided Landlord gives Tenant the above 24-hour prior
notice, Tenant shall make available all necessary Tenant representatives so that
Landlord may access the Classified Space as provided above.
14.2 No Liability. Subject to the provisions of Section 14.1, Landlord
shall be permitted to enter the Premises for any of the purposes stated in and
in accordance with Section 14.1 above without any liability to Tenant for any
loss of occupation of quiet enjoyment of the Premises resulting therefrom.
ARTICLE 15. ASSIGNMENT AND SUBLETTING
15.1 Assignment and Subletting. Tenant shall neither voluntarily nor by
operation of law, assign, sell, encumber, pledge or otherwise transfer all or
any part of Tenant's leasehold estate hereunder, or permit the Premises to be
occupied by anyone other than Tenant or Tenant's employees, or sublet the
Premises or any portion thereof, without Landlord's prior written consent in
each instance, which consent shall not be unreasonably withheld. Any purported
assignment or subletting contrary to these provisions shall be void. It shall
not be unreasonable for Landlord to base its determination as to whether consent
will be granted in any specific instance on, without limitation, the following
factors: (a) whether the assignee's or subtenant's use of the Premises will be
compatible with the provisions of this Lease; (b) the financial capacity of the
assignee or subtenant; (c) the business reputation of the assignee or subtenant;
(d) the quality and type of the business operations of the assignee or
subtenant; (e) the business experience of the proposed assignee or subtenant;
and (f) that each and every applicable covenant, condition or obligation imposed
upon Tenant by this Lease is assumed by such assignee or subtenant and each and
every right, remedy or benefit afforded Landlord by this Lease is not thereby
impaired or diminished. This list of factors is not intended to be exclusive,
and Landlord may rely on such other reasonable basis for judgment as may apply
from time to time. Consent by Landlord to one or more assignments of this Lease
or to one or more sublettings of the Premises shall not operate to exhaust
Landlord's rights under this Section.
15.2 Notice to Landlord. If Tenant desires at any time to assign this
Lease or to sublet the Premises or any portion thereof, it shall first notify
Landlord of its desire to do so and shall submit in writing to Landlord (the
"Transfer Notice"); (i) the size and location of the space Tenant proposes to
assign or sublet; (ii) the name of the proposed assignee; (iii) the date on
which the Tenant proposes that the transfer be effective, which shall not be
earlier than the date which is forty-five (45) days after the Transfer Notice
(iv) the nature of the proposed assignee's business to be carried on in the
Premises; (v) the terms and provisions of the proposed sublease or assignment;
(vi) such reasonable financial information as Landlord may request concerning
the proposed assignee, and (vii) such other information as Landlord may
reasonably require. Tenant agrees to reimburse Landlord for Landlord's actual
costs and attorneys' fees incurred in conjunction with the processing and
documentation of any such requested assignment, subletting, transfer, change or
ownership or hypothecation of this Lease.
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15.3 Notwithstanding Section 15.1 and 15.2, Landlord agrees that Tenant
may assign its interest in this Lease, without Landlord's prior written consent
but with reasonable prior notice to Landlord, (i) to any successor by merger or
sale of substantially all of Tenant's assets to which this Lease relates in a
manner such that the assignee will become liable and responsible for the
performance and observance of all Tenant's duties and obligations hereunder, or
(ii) in connection with any joint venture entered into by Tenant with an
investment grade rated company (each such assignment, a "Specially Permitted
Assignment"). As used herein, the term "investment grade rated" means a senior
unsecured credit rating of "BBB" or higher (or the equivalent) as determined by
Standard & Poor's (or an equivalent national credit rating service). In
addition, Tenant may assign its interest in this Lease, without Landlord's prior
written consent but with reasonable prior written notice to Landlord, to any
corporation or other entity which controls, is controlled by, or is under common
control with Tenant, a corporation or other entity will be regarded as in
control of another corporation or entity if its owns or controls in excess of
50% of the voting stock or other ownership interest of the other corporation or
entity), subject to the prerequisite condition that the corporation or other
entity to which Tenant's interest in this Lease would be assigned must
demonstrate to the satisfaction of Landlord that: (i) it has financial soundness
and capability which is equal to or greater than that of Tenant, (ii) it's net
worth is equal to or greater than that of Tenant's immediately preceding such
assignment, (iii) the assignee's use of the Premises will be compatible with the
provisions of the Lease, and (iv) each and every covenant, condition or
obligation imposed upon Tenant by this Lease is assumed by such assignee and
each and every right, remedy or benefit afforded Landlord by this Lease is not
thereby impaired or diminished.
15.4 No Release of Liability. No subletting or assignment, even with the
consent of Landlord, shall relieve Tenant of its obligation to pay the Rent and
perform all the other obligations to be performed by Tenant hereunder. The
acceptance of Rent by Landlord from any other person shall not be deemed to be a
waiver by Landlord of any provision of this Lease or to be a consent to any
assignment or subletting.
15.5 Transfer Premiums. If Tenant assigns or sublets its rights under this
Lease, Tenant shall pay to Landlord as Additional Rent, after Tenant has
recovered any relevant leasing commissions, costs of tenant improvements and
other expenses of the assignment or sublease, 50% of such excess consideration
due and payable to Tenant from said assignment or sublease to the extent said
consideration exceeds the Base Annual Rental or a pro rata portion of the Base
Annual Rental, in the event only a portion of the Premises is sublet or assigned
("Profits"); provided, however, Landlord will not be entitled to any Profits
derived in connection with a Specially Permitted Assignment.
15.6 Landlord's Option. If Tenant desires at any time to assign or sublet
all or substantially all of the Premises, Landlord, within 15 days after
Landlord's receipt of all of the information required in the Transfer Notice,
may by written notice to Tenant elect to terminate this Lease as to the entire
Premises. In the event the Landlord elects to terminate the Lease, the Lease
shall terminate on the proposed date the transfer would be effective as
specified in the Transfer Notice and Tenant shall have no furhter obligations
with respect to the Premises other than to surrender and vacate the Premises on
or before the effective date of termination. After any such election by
Landlord, Landlord shall be entitled to re-lease the Premises in Landlord's sole
and absolute discretion.
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ARTICLE 16. DISPOSSESSION
16.1 No Dispossession. If Tenant shall surrender the Premises, or be
disposed by process of law, or otherwise, Landlord may terminate this Lease,
retake possession of the Premises, pursue its remedies provided herein, and any
personal property or trade fixtures belonging to Tenant and left on the Premises
shall, at the option of Landlord, be deemed abandoned. In such case, Landlord
may dispose of said personal property at Tenant's sole expense in any manner and
is hereby relieved of all liability for doing so.
ARTICLE 17. BREACH BY TENANT
17.1 Events of Default. The occurrence of any of the following shall
constitute a breach and material default of this Lease by Tenant:
17.1.1 The failure of Tenant to pay or cause to be paid when due any
installment of Base Annual Rental, or any Additional Rent, Rent, taxes, monies,
or charges required by this Lease to be paid by Tenant when such failure
continues for a period of 5 business days after Tenant's receipt of written
notice thereof from Landlord, provided that if Tenant fails to pay any of the
foregoing within the above 5-business day period more than two (2) times in any
twelve (12) month period during the Term, Landlord shall not be required to
provide Tenant with any further notice and Tenant shall be deemed to be in
default of this Section 17.1 if Tenant fails to pay any installment of Base
Annual Rental, or any Additional Rent, Rent, taxes, monies or other charges
required by this Lease to be paid by Tenant as and when due ;
17.1.2 The failure of Tenant to perform any term, covenant or
condition, other than payment of Rent, taxes, monies or charges, required by
this Lease and Tenant shall have failed to cure such failure within 30 days
after written notice from Landlord; provided, however, that where such failure
cannot reasonably be cured within the 30 day period, the Tenant shall not be in
default if it has commenced such cure within the same 30 day period and
diligently thereafter prosecutes the same to completion within thirty (30) days
thereafter;
17.1.3 Subject to the notice and cure provisions of Section 17.1.2
above, Tenant causing, permitting, or suffering, without the prior written
consent of Landlord, any act when this Lease requires Landlord's prior written
consent or prohibits such act; or
17.1.4 To the extent permitted by applicable law, any act of
bankruptcy cause, suffered or permitted by Tenant. For purposes of this Lease,
"act of bankruptcy" shall include any of the following:
17.1.4.1. Any general assignment or general arrangement for
the benefit of creditors;
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17.1.4.2. The filing of any petition by or against Tenant to
have Tenant adjudged a bankrupt or a petition for reorganization or arrangement
under any law relating to bankruptcy, unless such petition is filed against
Tenant and same is dismissed within 60 days;
17.1.4.3. The appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located in the Premises or of
Tenant's interest in this Lease; or,
17.1.4.4. The attachment, execution or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease.
17.2 Three-Day Notice. In the event that Landlord issues a three-day
notice, notice of abandonment or comparable document by reason of Tenant's
breach, and Tenant cures such default, Tenant agrees to pay to Landlord, the
reasonable cost of preparation and delivery of same.
17.3 No Waiver. The acceptance by Landlord of Rent due hereunder after
breach by Tenant or the waiver by Landlord of any other breach or default by
Tenant hereunder will not constitute a waiver of such breach, unless a written
notice to that effect has been delivered to Tenant.
17.4 Replacement of Statutory Notice Requirements. When this Lease
requires service of a notice, that notice shall replace rather than supplement
any equivalent or similar statutory notice, including any notices required by
applicable law. When a statute requires service of a notice in a particular
manner, service of that notice (or a similar notice required by this Lease) in
the manner required by Section 38.10 shall replace and satisfy the statutory
service-of-notice procedures.
ARTICLE 18. REMEDIES UPON BREACH
18.1 Landlord's Remedies. If Tenant fails to perform any of its
affirmative duties or obligations as and when required after expiration of any
cure periods expressly provided in Article 17, above (or in the case of any
facts or circumstances that create an imminent risk of damage to the Property or
injury to, or death of, persons, without written notice), Landlord may, at its
option, perform such duty or obligation on Tenant's behalf, including but not
limited to the payment of property taxes, obtaining of reasonable required
bonds, insurance policies, or governmental licenses, permits or approvals.
Tenant shall pay to Landlord an amount equal to the costs and expenses incurred
by Landlord in such performance upon receipt of an invoice, with interest
thereon, at the Default Rate from the date of expenditure. In the event of any
breach or material default by Tenant under Section 17.1, in addition to other
rights or remedies of Landlord at law or in equity, Landlord shall have the
following remedies:
18.1.1 Landlord shall have the remedy which provides that, when a
tenant has the right to sublet or assign (subject only to reasonable
limitations), the landlord may continue the lease in effect after the tenant's
breach and abandonment and recover Rent as it become due. Accordingly, if
Landlord does not elect to terminate this Lease on account of any default by
Tenant, Landlord may enforce all of Landlord's rights and remedies under this
Lease, including the right to recover all Rent as it becomes due; and
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18.1.2 Landlord, either as an alternative or subsequent to
exercising the remedies set forth in Section 18.1.1, may terminate Tenant's
right to possession of the Property without the delivery to Tenant of any
additional written notice of termination. Landlord may then immediately reenter
the Premises and take possession thereof pursuant to legal proceedings and
remove all persons and property from the Premises; such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the account
of Tenant. No notice of termination shall be necessary in the event that Tenant
has abandoned the Premises. In the event that Landlord elects to terminate
Tenant's right of possession, Landlord may recover the following:
18.1.2.1. The worth at the time of the award of the unpaid
Rent which had been earned at the time of termination. "Worth at the time of
award" shall be computed by allowing interest at the Default Rate from the first
day the breach occurs;
18.1.2.2. The worth at the time of award of the amount by
which the unpaid Rent which would have been earned after termination until the
time of award exceeds the fair market rental value of the Premises, as
determined by Landlord. "Worth at the time of award" shall be determined by
allowing interest at the Default Rate from the first day a breach occurs;
18.1.2.3. The worth at the time of award of the amount by
which the unpaid Rent for the balance of the term after the time of award
exceeds the fair market rental value of the Premises, as determined by Landlord.
"Worth at the time of award" shall be computed by discounting such amount at the
discount rate at the Federal Reserve Bank of San Francisco at the time of award
plus 1%; and
18.1.2.4. Any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom including, but not limited to, commissions and
expenses of reletting, attorneys' fees, costs of alterations and repairs,
recording fees, filing fees and any other expenses customarily resulting from
obtaining possession of leased premises and re-leasing.
18.2 Landlord Default. Tenant shall have no right to terminate
this Lease for any default by Landlord.
ARTICLE 19. DAMAGE OR DESTRUCTION
19.1 Landlord's Obligation to Rebuild. If the Property is damaged or
destroyed, Tenant shall promptly notify Landlord in writing of the damage or
destruction to the Property. Provided Landlord has been given notice of such
damage or destruction, Landlord shall provide Tenant a good faith estimate of
the time it will take to repair the Property and Landlord shall promptly and
diligently repair the Property unless it has the right to terminate this Lease
as provided in Section 19.2 below and it elects to so terminate.
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19.2 Landlord's Right to Terminate. Landlord shall have the right to
terminate this Lease following damage to or destruction of the Property if any
of the following occurs: (i) insurance proceeds together with additional amounts
Tenant agrees to contribute are not confirmed to be available to Landlord,
within 90 days following the date of damage, to pay 100% of the cost to fully
repair the damaged Property, excluding the deductible for which Tenant shall
also be responsible; (ii) the Property cannot, with reasonable diligence, be
fully repaired by Landlord within 12 months after the date of the damage or
destruction; (iii) the Property cannot be safely repaired because of the
presence of hazardous factors, including, but not limited to, earthquake faults,
radiation, chemical waste and other similar dangers; (iv) the Property are
destroyed or damaged during the last 12 months of the Term; or (v) Tenant is in
uncured material default under the terms of this Lease at the time of such
damage or destruction.
19.3 Tenant's Right to Terminate. Tenant shall have the right to terminate
this Lease following damage to or destruction of the Property if any of the
following occurs: (i) the Property cannot, with reasonable diligence, be fully
repaired by Landlord within twelve (12) months after the date of the damage or
destruction; or (ii) the Property is destroyed or damaged during the last 12
months of the Term.
If a party elects to terminate this Lease and has the right to so
terminate, such party will give the other party written notice of its election
to terminate within 30 days after it has knowledge of such damage or
destruction, and this Lease will terminate 15 days after receipt of such notice.
If this Lease is terminated pursuant to Section 19.2, Landlord shall, subject to
the rights of its lender(s), be entitled to receive and retain all the insurance
proceeds resulting from such damage, except for those proceeds payable under
policies obtained by Tenant which specifically insure Tenant's personal
property, trade fixtures and machinery. If neither party elects to terminate the
Lease, Landlord shall, promptly following the date of such damage or destruction
and receipt of amounts required of Tenant pursuant to Section 19.2(i) above,
commence the process of obtaining necessary permits and approvals, and shall
diligently commence repair of the Property as soon as practicable and thereafter
prosecute the same diligently to completion, in which event this Lease will
continue in full force and effect.
19.4 Limited Obligation to Repair. Landlord's obligation, should it elect
or be obligated to repair or rebuild, shall be limited to the Property, and
Tenant shall, at its expense, replace or fully repair all Tenant's personal
property and any alterations installed by Tenant existing at the time of such
damage or destruction. If the Property is to be repaired in accordance with the
foregoing, Landlord shall make available to Tenant any portion of insurance
proceeds it receives which are allocable to the alterations constructed by
Tenant pursuant to this Lease provided Tenant is not then in default.
19.5 Abatement of Rent. Rent shall be temporarily abated in proportion to
the degree to which Tenant's use of the Property is impaired and only to the
extent of any proceeds received by Landlord from the rental abatement insurance
described in Section 10.1 hereof, during any period when, by reason of such
damage or destruction, Landlord and Tenant reasonably determines that there is
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substantial interference with Tenant's use of the Property and Tenant actually
ceases to use such portion of the Property impacted by such damage or
destruction. Such abatement shall commence upon such damage or destruction and
end upon the earlier of (i) substantial completion by Landlord of the repair or
reconstruction which Landlord is obligated or undertakes to do or (ii) the date
on which Tenant commences to use the damaged portion of the Property. Tenant
shall not be entitled to any compensation or damages from Landlord for loss of
the use of the Property, damage to Tenant's personal property or any
inconvenience occasioned by such damage, repair or restoration.
19.6 Replacement Cost. The determination in good faith by Landlord of the
estimated cost of repair of any damage, of the replacement cost, or of the time
period required for repair shall be conclusive for purposes of this Section.
ARTICLE 20. CONDEMNATION
20.1 Total Taking - Termination. If title to all of the Property or so
much thereof is taken for any public or quasi-public use under any statute or by
right of eminent domain so that reconstruction of the Building will not result
in the Property being reasonably suitable (as reasonably determined by Landlord
and Tenant) for Tenant's continued occupancy for the uses and purposes permitted
by this Lease, this Lease shall terminate as of the date possession of the
Property or part thereof be taken.
20.2 Partial Taking. If any part of the Property is taken and Landlord and
Tenant reasonably determine that the remaining portion of the Property will be
reasonably suitable for Tenant's continued occupancy for the purposes and uses
permitted by this Lease after Landlord makes repairs and alterations, this Lease
shall, as to the part so taken terminate as of the date that possession of such
part of the Property is taken and the Base Annual Rental shall be reduced in the
same proportion that the floor area of the portion of the Premises so taken
(less any addition thereto by reason of any reconstruction) bears to the
original floor area of the Premises. Landlord shall, at its sole cost and
expense, make all necessary repairs or alterations to the Property so as to make
the portion of the Property not taken a complete architectural unit. Such work
shall not, however, exceed the scope of the work done by Landlord in originally
constructing the Property. Base Annual Rental due and payable hereunder shall be
temporarily abated based on the percentage of the Property that Tenant is unable
to use and actually does not use. Notwithstanding the foregoing, if more than
twenty-five percent (25%) of the square footage of the Premises is taken or sold
under such threat, Landlord may terminate this Lease as of the date that the
condemning authority takes possession by delivery of written notice of such
election within twenty (20) days after Landlord has been notified of the taking
or, in the absence thereof, within twenty (20) days after the condemning
authority shall have taken possession.
20.3 No Apportionment of Award. No award for any partial or entire taking
shall be apportioned, it being agreed and understood that Landlord shall be
entitled to the entire award for any partial or entire taking. Tenant assigns to
Landlord its interest in any award which may be made in such taking or
condemnation, together with any and all rights of Tenant arising in or to the
same or any part thereof. Nothing contained herein shall be deemed to give
25
Landlord any interest in or require Tenant to assign to Landlord any separate
award made to Tenant for the taking of Tenant's personal property, trade
fixtures or machinery for the interruption of Tenant's business, or its moving
costs, or for the loss of its goodwill. In addition, Tenant will have the right
to make a separate claim in the condemnation proceeding for (a) the taking of
the unamortized or undepreciated value of any leasehold improvements that Tenant
has the right to remove at the end of the Lease Term and that Tenant elects not
to remove, (b) loss of goodwill, and (c) any other amount in addition to the
foregoing, so long as any such claim does not reduce the amount of the award
payable to Landlord.
20.4 Temporary Taking. No temporary taking of the Property shall terminate
this Lease or give Tenant any right to any abatement of Rent, except to the
extent covered by insurance proceeds payable to Landlord. Any award made to
Tenant by reason of such temporary taking shall belong entirely to Tenant and
Landlord shall not be entitled to share therein. Each party agrees to execute
and deliver to the other all instruments that may be required to effectuate the
provisions of this Section.
20.5 Sale Under Threat of Condemnation. A sale made in good faith by
Landlord to any authority having the power of eminent domain, either under
threat of condemnation or while condemnation proceedings are pending, shall be
deemed a taking under the power of eminent domain for all purposes of this
Section.
ARTICLE 21. SURRENDER OF LEASE
21.1 Surrender of Lease. The voluntary or other surrender of its interest
in this Lease by Tenant or a mutual cancellation of this Lease shall not work a
merger, and shall, at the election of Landlord, either terminate all or any
existing subleases or subtenancies or operate as an assignment to Landlord of
any or all of such subleases or subtenancies. Landlord shall exercise its
election within 30 days of any such surrender or cancellation.
ARTICLE 22. ATTORNEYS' FEES
22.1 Attorneys' Fees. If either party institutes or is made a party to any
action or proceeding to enforce or interpret this Lease, the prevailing party in
such action or proceeding shall be entitled to recover all costs and attorneys'
fees incurred in connection with such action or proceeding, or any appeal or
enforcement of such action or proceeding. If Tenant is in default under this
Lease, in addition to all other remedies available to Landlord as a result
thereof, Landlord shall also be entitled to recover all costs and attorneys'
fees incurred by Landlord in connection with such default, including, without
limitation, any court costs and costs relating to the preparation of any default
notices.
ARTICLE 23. SALE OF THE PROPERTY BY LANDLORD.
23.1 Sale of Property. Subject to Tenant's rights under Articles 35 and
37, notwithstanding any provisions of this Lease to the contrary, Landlord may
assign, in whole or in part, Landlord's interest in this Lease and may sell all
or part of either the Property or the entity owning the Property. Should
Landlord elect to sell the entity owning the Property, or the Property, Landlord
26
agrees to notify Tenant of its intent to do so. Landlord's willingness to notify
Tenant is to be considered a courtesy notice only and not an offer to sell, or
an obligation of any form on the part of Landlord to sell the Property to
Tenant. This courtesy notice is not to be construed as an option, an offer to
negotiate, a right of first refusal, or any other form of agreement that would
obligate Landlord to pursue a sale of the Property to Tenant or in any manner
prohibit Landlord from its rights to sell all or part of the Property as it
chooses.
ARTICLE 24. QUIET ENJOYMENT
24.1. Quiet Enjoyment. If Tenant is not in breach under the covenants made
in this Lease, Landlord covenants that Tenant shall have peaceful and quiet
enjoyment of the Property without hindrance on the part of Landlord. Landlord
will defend Tenant in the peaceful and quiet enjoyment of the Property against
claims of all persons claiming through or under Landlord.
ARTICLE 25. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS
25.1 Tenant Estoppel Certificate. Tenant shall at any time during the term
of this Lease, within 5 business days of written notice from Landlord, execute
and deliver to Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect or, if modified, stating the nature of
such modification. Tenant's statement shall include other details requested by
Landlord, such as the date to which Rent and other charges are paid, Tenant's
knowledge concerning any uncured defaults with respect to Landlord's obligations
under this Lease and the nature of such defaults if they are claimed, and such
other matters as Landlord may reasonably request. Any such statement may be
relied upon conclusively by any purchaser or lender having an interest in the
Property. Tenant's failure to deliver such statements within such time shall be
conclusive upon the Tenant that this Lease is in full force and effect, except
as and to the extent any modification has been represented by Landlord, and that
there are no uncured defaults in Landlord's performance, and that not more than
1 month's Rent has been paid in advance.
25.2 Tenant Financial Statements. Within 120 days after the end of each
fiscal year, Tenant shall provide Landlord a copy of the audited financial
statements that have been provided to the SEC or, in the event Tenant is no
longer required to deliver such financial statements to the SEC, year-end
financial statements, including balance sheets and income statements, reflecting
Tenant's current financial condition for such fiscal year that have been audited
by a nationally recognized firm of certified public accountants. Tenant
represents and warrants that all financial statements, records and information
furnished by Tenant to Landlord in connection with this Lease are true, correct
and complete in all respects.
ARTICLE 26. SUBORDINATION AND ATTORNMENT
26.1 Subordination of Lease. This Lease and Tenant's rights under this
Lease are subject and subordinate to any Mortgage, ground lease, and to all
renewals, modifications, consolidations, replacements, or extensions thereof,
now or hereafter affecting the Property. The provisions of this Section shall be
self-operative, and no further instrument of subordination shall be required. In
confirmation of such subordination, however, Tenant shall within five business
27
days execute and deliver any instruments that Landlord, the holder of any
Mortgage, or the Landlord of any ground lease may request to evidence such
subordination. If Tenant fails to execute and deliver any such instruments,
Tenant irrevocably constitutes and appoints Landlord as Tenant's special
attorney-in-fact to execute and deliver such instruments. Landlord shall use
commercially reasonable efforts to obtain a subordination, non-disturbance and
attornment agreement ("SNDA") from Landlord's current lender ("Lender") with
regard to any current mortgage or deed of trust recorded against the Property as
of the date of this Lease, which SNDA shall be based on Lender's form of SNDA.
The SNDA shall provide, among things, that in the event of any foreclosure, sale
under a power of sale, ground or master lease termination, or transfer in lieu
of any of the foregoing, or the exercise of any other remedy under any such
encumbrance, but subject to such holder's form exceptions, or other reasonable
exceptions: (i) Tenant's use, possession, and enjoyment of the Property will not
be disturbed and this Lease will continue in full force and effect so long as
Tenant is not in default; and (ii) this Lease will automatically become a lease
directly between any successor to Landlord's interest, as landlord, and Tenant,
as if that successor were the landlord originally named in the lease. The
subordination of this Lease to the lien of any future mortgage or deed of trust
(i.e., any mortgage or deed of trust that is recorded after the Commencement
Date of this Lease) shall be contingent upon Tenant's receipt of an SNDA from
the holder of any such mortgage or deed of trust recorded against the Property
in substantially the same form as provided above.
26.2 Attornment to Lender. If the holder of any Mortgage, or the Landlord
of any ground lease affecting the Property, shall hereafter succeed, by
foreclosure or otherwise, to the rights of Landlord under this Lease, Tenant
shall attorn to and recognize such successor as Tenant's Landlord under this
Lease, and shall promptly execute and deliver any instruments that may be
necessary to evidence such attornment, and Tenant hereby irrevocably appoints
Landlord as Tenant's special attorney in fact to execute and deliver such
instruments on behalf of Tenant should Tenant refuse or fail to do so. Upon such
attornment, this Lease shall continue in effect as a direct lease between such
successor Landlord and Tenant upon and subject to all of the provisions of this
Lease.
ARTICLE 27. HOLDING OVER
27.1 Holding Over. If Tenant should remain in possession of the Property
after the expiration of the term of this Lease without executing a new lease or
after Landlord has declared a forfeiture by reason of a default by Tenant, the
such holding over shall be construed as a tenancy from month to month, subject
to all the conditions, provisions and obligations of this Lease insofar as they
are applicable to a month to month tenancy, including the provisions of Article
3, except that the Base Annual Rental shall be increased to the greater of (i)
one hundred fifty percent (150%) of the Base Annual Rental last due and (ii) the
fair market rental rate for the Property as of the commencement of such holdover
period, payable monthly in advance. Notwithstanding the foregoing, nothing
contained in this Article 27 shall be construed as consent by Landlord to the
holding over by Tenant, and Landlord expressly reserves the right to require
Tenant to surrender possession of the Property to Landlord as provided in this
Lease upon expiration or other termination of this Lease. Notwithstanding the
foregoing, if Tenant fails to vacate the Property or Tenant fulfills less than
all of its obligations hereunder at the end of the Lease Term, Tenant also shall
be liable for all damages incurred by Landlord (including, without limitation,
consequential damages) by reason of the latter's inability to deliver possession
of the Property or any portion thereof to any other person.
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ARTICLE 28. MORTGAGEE PROTECTION
28.1 Mortgagee Protection. In the event of any default on the part of
Landlord, Tenant agrees to give notice by registered or certified mail to any
beneficiary of a deed of trust or mortgage covering the Property whose address
shall have been furnished to the Tenant and shall offer such beneficiary or
mortgagee a reasonable opportunity to cure such default (such cure period not to
exceed 90 days after receipt of such notice) before Tenant shall attempt to
exercise any other remedy.
ARTICLE 29. LIABILITY OF SUCCESSORS
29.1 Successor's Liability. The covenants and conditions herein contained
shall, subject to the provisions as to assignment, apply to and bind the heir,
successors, executors, administrators, and permitted assigns of all the parties
hereto and all of the parties hereto shall be jointly and severally liable for
the covenants contained herein.
ARTICLE 30. EASEMENTS
30.1. Easements. Landlord reserves the right, from time to time, to grant
such easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of parcel maps and restrictions, so long
as such easements, rights, dedications, maps and restrictions do not
unreasonably interfere with the use of the Property by Tenant. Tenant shall sign
any documents or instruments to accomplish the foregoing upon request of
Landlord, and failure to do so shall constitute a material breach of this Lease.
Tenant irrevocably appoints Landlord as Tenant's special attorney in fact to
execute and deliver such documents or instructions on behalf of Tenant should
Tenant refuse or fail to do so.
ARTICLE 31. RESTRICTIONS
31.1 Compliance with Covenants, Conditions and Restrictions. In addition
to requirements imposed by law, the care of the Property and conduct of business
thereupon, among other things, may be restricted or subject to heightened
requirements pursuant to one or more recorded Covenant, Conditions and
Restrictions ("CC&R's"). The terms of all applicable CC&R's, if any, in their
entirety, are incorporated herein by this reference. Tenant has received a copy
of that certain Declaration of Covenants, Conditions and Restrictions for Route
One Hundred Business Park, dated November 6, 1972 and recorded as Liber 613,
Page 635 in the Official Records of Howard County, Maryland (the "Route One
Hundred CC&Rs"). To the actual knowledge of Landlord, the Route One Hundred
CC&Rs no longer encumber the Property.
31.2 Associations. Tenant shall faithfully observe and comply with the
provisions of all applicable CC&R's, if any, and all modifications and additions
which may from time to time be enacted pursuant to their terms. Tenant shall
similarly observe and comply with all requests, demand and orders otherwise made
29
by any governing associations created under the authority of the CC&R's (the
"Associations"). Any violation by Tenant of the CC&R's or rightful orders of the
Associations created thereby after written notice to Tenant shall be a default
under this Lease, subject to the cure provisions of Section 17.1.2. However,
Landlord will not be responsible to Tenant for the nonperformance of any
provisions of such CC&R's by its tenants occupying neighboring properties, if
any.
31.3 Association Fees. All payments, charge, dues, and assessments imposed
under the authority of the CC&R's and the Associations ("Association Fees"), if
any, shall be the sole responsibility of Tenant, who shall timely pay such
Association Fees to Landlord as Additional Rent. Each payment shall be made
promptly on demand throughout the term of this Lease and shall be paid without
deduction or offset. To the actual knowledge of Landlord, there are no current
Association Fees payable in connection with the Property.
ARTICLE 32. INTENTIONALLY OMITTED
ARTICLE 33. HAZARDOUS MATERIALS
33.1 Definitions:
33.1.1 Hazardous Materials Laws. "Hazardous Materials Laws" means
any and all federal, state or local laws, ordinances, rules, decrees, orders,
regulations or court decisions relating to hazardous substances, hazardous
materials, hazardous waste, toxic substances, environmental conditions on, under
or about the Property, or soil and ground water conditions, including,
amendments to and any regulations promulgated pursuant to the foregoing, and any
similar federal, state or local laws, ordinances, rules, decrees, orders or
regulations.
33.1.2 Hazardous Materials. "Hazardous Materials" means any
chemical, compound, substance or other material, including, without limitation,
gasoline, diesel, aviation fuels, lubricating oils, solvents and chemicals,
that: (i) is defined as a hazardous substance, hazardous material, hazardous
waste or toxic substance under any Hazardous Material Law; (ii) is controlled or
governed by any Hazardous Materials Law, or gives rise to any reporting, notice
or publication requirements thereunder, or gives rise to any liability,
responsibility or duty on the part of Tenant or County with respect to any third
person thereunder; or (iii) is a flammable or explosive material, asbestos,
radioactive material, nuclear medicine material, drug, vaccine, bacterial,
virus, hazardous waste, toxic substance, or related injurious or potentially
injurious material (by itself or in combination with other materials).
33.2 Tenant's Obligations
33.2.1 Compliance with Laws. Tenant shall strictly comply with, and
shall maintain the Property in compliance with, all Hazardous Materials Laws.
Tenant shall obtain and maintain in full force and effect all permits, licenses
and other governmental approvals required for Tenant's operations on the
Property under any Hazardous Materials Laws, including, without limitation, any
radiological materials licenses and shall comply with all terms and conditions
thereof. At Landlord's request, Tenant shall deliver copies of, or allow
Landlord to inspect, all such permits, licenses and approvals. Tenant shall
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perform any monitoring, investigation, clean-up, removal, detoxification,
preparation of closure or other required plans and any other remedial work
(collectively, "Remedial Work") required as a result of any release or discharge
of Hazardous Materials from the Property or any violation of Hazardous Materials
Laws caused by Tenant or any subtenant of Tenant or their respective agents,
contractors, employees, licensees or invitees (but not by Landlord or Landlord's
Agents). Landlord shall have the right to intervene in any governmental action
or proceeding involving any Remedial Work, and to approve performance of the
work, in order to protect Landlord interests. Tenant shall be solely responsible
for paying all fines, damages and penalties imposed by any governmental agency
resulting from Tenant's violation of any Hazardous Materials Laws.
33.2.2 Compliance with Insurance Requirements. Tenant shall comply
with the requirements of Tenant's and Landlord's insurers regarding Hazardous
Materials and with such insurers' recommendations based upon prudent industry
practices regarding management of Hazardous Materials.
33.2.3 Notice; Reporting. Tenant shall notify Landlord in writing
immediately after any of the following: (a) Tenant has knowledge, or has
reasonable cause to believe, that any Hazardous Material has been released or
discharged under or about the Property, whether or not the Hazardous Material is
in quantities that would require reporting to a public agency; (b) Tenant
receives any order of a governmental agency requiring any Remedial Work pursuant
to any Hazardous Materials Laws; (c) Tenant receives any warning, notice of
inspection, notice of violation or alleged violation, or Tenant receives notice
or knowledge of any proceeding, investigation of enforcement action, pursuant to
any Hazardous Materials Laws; or (d) Tenant receives written notice of any
claims made by any third party against Tenant or the Property relating to any
loss or injury resulting from Hazardous Materials. Tenant shall deliver to
Landlord copies of all test results, reports and business management plans
required to be filed with any government agency pursuant to any Hazardous
Materials Laws.
33.2.4 Entry and Inspection; Cure. Landlord and its agents,
employees and contractors, shall have the right to enter the Property at all
reasonable times to inspect the Property and Tenant's compliance with the terms
and conditions of this Section 33, or to conduct investigations and tests. No
prior notice to Tenant shall be required in the event of any emergency, or if
Landlord has reasonable cause to believe that violations by Tenant of this
Section 33 have occurred, or if Tenant consents at the time of entry. In all
other cases, Landlord shall give at least 24 hours' prior notice to Tenant.
Notwithstanding the foregoing, Landlord may only access any Classified Space
when accompanied by certain specified representatives of Tenant and in
accordance with Tenant's standard entry procedures for the Premises, provided
that so long as Landlord complies with the foregoing with regard to the
Classified Space, Tenant shall not otherwise unreasonably deny Landlord access
to the Classified Space. Provided Landlord gives Tenant the above 24-hour prior
notice, Tenant shall make available all necessary Tenant representatives so that
Landlord may access the Classified Space as provided above. Landlord shall have
the right, but not the obligation, to remedy any violation by Tenant of the
provisions of this Section 33, or to perform any Remedial Work necessitated as a
result of any discharge by Tenant of Hazardous Materials on the Property. Tenant
shall pay, upon demand, all costs incurred by Landlord in remedying such
violations or performing all Remedial Work necessitated by the acts or omissions
of Tenant and/or its agents or employees, plus interest thereon at the Default
Rate from the date of demand until the date paid by the Tenant.
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33.2.5 Termination/Expiration. Upon termination or expiration of
this Lease, Tenant shall, at Tenant's cost, remove any equipment, improvements
or storage facilities utilized in connection with any Hazardous Materials and
shall clean up, detoxify, repair and otherwise restore the Property to a
condition in compliance with applicable laws governing Hazardous Materials, to
the extent such condition is caused by Tenant or any subtenant of Tenant or
their respective agents, contractors, employees, licensees or invitees. Upon
termination or expiration of this Lease, Tenant shall, at Tenant's cost, permit
Landlord and Landlord's Agents to enter the Property upon giving Tenant a 24
hour written notice for the purposes of inspecting the environmental condition
of the Property, including an audit of any Hazardous Materials that are located
on the Property, provided that Landlord may only access any Classified Space
when accompanied by certain specified representatives of Tenant and in
accordance with Tenant's standard entry procedures for the Premises, provided
that so long as Landlord complies with the foregoing with regard to the
Classified Space, Tenant shall not otherwise unreasonably deny Landlord access
to the Classified Space.
33.2.6 Indemnification. Tenant shall indemnify, protect, defend and
hold Landlord (and its employees and agents) harmless from and against any and
all claims, costs, expenses, suits, judgments, actions, investigations,
proceedings and liabilities arising out of or in connection with any breach of
any provision of this Lease to the extent arising out of the use, generation,
storage, release, disposal or transportation of Hazardous Materials by Tenant or
any subtenant, or their respective agents, contractors or employees upon the
Property (but not by Landlord or Landlord's Agents), on, under or about the
Property during the Term, including, but not limited to, all foreseeable and
unforeseeable consequential damages and the cost of any Remedial Work, but
excepting any loss or injury resulting from the breach of the Lease by Landlord
or the gross negligence or willful misconduct of Landlord or Landlord's Agents.
Neither the consent by Landlord to the use, generation, storage, release,
disposal or transportation of Hazardous Materials, nor strict compliance with
all Hazardous Materials Laws, shall excuse Tenant from Tenant's indemnification
obligations pursuant to this Section 33.2.6. The foregoing indemnity shall be in
addition to and not a limitation of the indemnification provisions of Section 9
of this Lease. Tenant's obligations pursuant to this Section 33.2.6 shall
survive the termination or expiration of the Lease. The procedures set forth in
Section 9.2 also will apply to this Section.
33.2.7 Default. The release or discharge of any Hazardous Material
or violation of any Hazardous Materials Law by Tenant or any subtenant of Tenant
shall be a material default by Tenant under the Lease, subject to the cure
provisions set forth in 18.1.3. In addition to or in lieu of the remedies
available under the Lease as a result of such default, Landlord shall have the
right, without terminating the Lease, to require Tenant to suspend its
operations and activities on the Property until Landlord is satisfied that
appropriate Remedial Work has been or is being adequately performed; Landlord's
election of this remedy shall not constitute a waiver of Landlord's right
thereafter to declare a default and pursue other remedies set forth in the
Lease.
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ARTICLE 34 Options.
34.1 Options To Extend. Tenant shall have the option to extend the term
of this Lease for two (2) , ten (10) year periods, subject to the following
provisions:
34.1.1 Exercise of Option. Tenant shall have no right to exercise an
option: (i) during the period commencing with the giving of any notice of
default and continuing until said default is cured, (ii) during the period of
time any Rent is due and unpaid, (iii) in the event that Landlord has given
three or more notices of separate monetary or material non-monetary defaults,
whether or not the defaults are cured, during the 12 months immediately
preceding the exercise of the option, or (iv) if Tenant has assigned this Lease
or has subleased more than sixty percent (60%) of the Premises. The period of
time within which an option may be exercised shall not be extended or enlarged
by reason of Tenant's inability to exercise an option because of paragraph
34.1.1. Tenant shall exercise the option by delivery of written notice to
Landlord not less than 12 months nor more than 15 months prior to the expiration
of the initial term and, if exercised, the first option period, of this Lease.
If said notice is not delivered within said time period(s), the options shall
terminate. Notwithstanding anything to the contrary contained in this Lease, if
Landlord assigns, in whole or in part, Landlord's interest in this Lease or
sells, in whole or in part, either the Property or the entity owning the
Property, Tenant's right to exercise the option(s) under this Section 34 shall
not be terminated and shall remain in effect so long as Tenant complies with the
terms and conditions set forth in this Section 34.
34.2 Rent -Option.
34.2.1 Rent--First Option . The Base Annual Rental payable by Tenant
during the first option period shall be 100% of the fair market rent for the
Premises at the commencement date of such option period. The Base Annual Rental
payable by Tenant would continue to be increased as of the expiration of every
year of the option period commencing on the anniversary of the commencement of
such option period by an amount equal to 3.00% of the Base Annual Rental for the
preceding year. Provided Tenant has exercised the first option to extend
pursuant to this Article 34, Landlord and Tenant shall promptly enter into an
amendment to this Lease, amending, among things, the expiration date of this
Lease and the amount of Base Annual Rental to be paid during the option period.
34.2.2 Rent--Second Option . The Base Annual Rental payable by Tenant
during the first year of the second option period shall be 100% of the fair
market rent for the Premises at the commencement date of such option period. The
Base Annual Rental payable by Tenant would continue to be increased as of the
expiration of every year of the option period commencing on the anniversary of
the commencement of such option period by an amount equal to 3.00% of the Base
Annual Rental for the preceding year. Provided Tenant has exercised the second
option to extend pursuant to this Article 34, Landlord and Tenant shall promptly
enter into an amendment to this Lease, amending, among things, the expiration
date of this Lease and the amount of Base Annual Rental to be paid during the
option period.
34.2.3 Fair Market Rent . If Landlord and Tenant cannot agree on the
fair market rent of the Premises for the extension period within 30 days after
the Tenant has notified Landlord of Tenant's exercise of the option, Landlord
33
and Tenant shall each select, within 15 days of such notification, an appraiser
who must be a qualified MAI appraiser with at least 5 years experience
appraising commercial properties in the Elkridge, Maryland area to determine
said fair market rental value. If one party fails to so designate an appraiser
within the time required, the determination of fair market rental value of the
one appraiser who has been designated by the other party within the time
required shall be binding on both parties. The appraisers shall submit their
determinations of fair market rental value to both parties within 30 days after
their selection. If the difference between the two determinations is 10% or less
of the higher appraisal, then the average between the determinations shall be
the fair market rental value of the Premises. If said difference is greater than
10%, then the two appraisers shall within 15 days of the date the second
determination is submitted to the parties designate a third appraiser who must
also be a qualified MAI appraiser. The sole responsibility of the third
appraiser will be to determine which of the determinations made by the first two
appraisers is most accurate. The third appraiser shall have no right to propose
a middle ground or any modification of either of the determinations made by the
first two appraisers. The third appraiser's choice shall be submitted to the
parties within 20 days after his or her selection. Such determination shall bind
both of the parties and shall establish the fair market rental value of the
Premises. Each party shall pay the fees and expenses of its appraiser and shall
pay equal shares of the fees and expenses of the third appraiser. Fair market
rent for the purposes of this Lease shall mean the then prevailing rent for
property comparable in size, quality and location to the demised Premises,
leased on terms comparable to the terms contained in this Lease.
ARTICLE 35. Right to Purchase
35.1 Purchase Option. Landlord hereby grants to Tenant the exclusive option
to purchase the Property for 110% of the fair market value of the Property (the
"Purchase Option "), subject to the following provisions:
35.1.1 No Default. Tenant shall have no right to exercise the Purchase
Option unless the following shall be true or otherwise satisfied as of the date
Tenant exercises the Purchase Option: (i) Tenant has not assigned this Lease or
subleased more than sixty percent (60%) of the Premises, (ii) there has been no
prior Tenant default under this Lease and Tenant is not currently in default
under this Lease, and (iii) Tenant provides Landlord with documentary evidence
demonstrating that Tenant has sufficient financial resources available to be
able to pay the Purchase Price and to close the purchase within the time frame
described below.
35.1.2 Exercise Notice. Such Purchase Option must be exercised, if at
all, by Tenant delivering to Landlord notice thereof (the "Exercise Notice ") no
earlier than 12 months prior to the expiration or termination of the initial
Lease Term, it being understood that Tenant shall not have the right to exercise
the Purchase Option until the last year of the initial Term. If Tenant does not
timely deliver the Exercise Notice, the option herein granted shall terminate;
time being of the essence with respect to the delivering thereof. If Tenant
timely delivers an Exercise Notice, then Landlord shall sell to Tenant, and
Tenant shall purchase from Landlord, the Property for 110% of the fair market
value of the Property (which fair market value shall be determined without the
inclusion of any Tenant Funded Improvements, it being understood that any
34
determination of the fair market value of the Property shall be made as if the
Tenant Funded Improvements had not been constructed at the Property). Landlord
shall provide Tenant with Landlord's form of purchase and sale agreement for the
sale of the Property within five (5) business days after Landlord's receipt of
the Exercise Notice (the "Option PSA"). The Option PSA may provide for the
following: (i) sale of the Property on an "as is" basis, with all faults and
defects and without any representations or warranties of any kind, whether
express or implied; (ii) a fifteen (15)-day due diligence period (the
"Inspection Period") following the date the Purchase and Sale Agreement is
executed by both parties; (iii) a cash deposit equal to ten percent (10%) of the
Purchase Price to be paid by Tenant to Landlord upon execution of the Purchase
and Sale Agreement, which funds shall be held in escrow in an interest bearing
account, shall be non-refundable to Tenant after the Inspection Period for any
reason other than a material default by Landlord, and shall be applicable to the
Purchase Price at the Close of Escrow; (iv) all cash consideration; (v) that the
closing of the sale transaction shall occur upon the expiration of the initial
Lease Term; (vi) that Tenant shall be responsible for all closing costs in
connection with the purchase of the Property, including, without limitation, all
deed stamps and other recording costs, escrow and title fees and transfer taxes;
and (vii) such other terms and conditions as Landlord desires to include.
35.1.3 Termination of Purchase Option. Upon the termination of the
Purchase Option herein granted, (a) Tenant shall execute and deliver such
documents as Landlord may request to evidence the termination thereof,
including, without limitation, a quitclaim deed in recordable form memorializing
the termination of the Purchase Option and (b) Landlord may execute, file and
record an instrument evidencing the termination of the Purchase Option herein
granted. If Tenant fails to execute and deliver such documents, then Landlord
may do so. Tenant hereby appoints Landlord its attorney in fact for such
purpose, which appointment is coupled with an interest and is irrevocable.
35.1.4 Fair Market Value . If Landlord and Tenant cannot agree on the
fair market value of the Property within 30 days after the Tenant has delivered
the Exercise Notice to Landlord, Landlord and Tenant shall each select, within
15 days of such notification, an appraiser who must be a qualified MAI appraiser
with at least 5 years experience appraising commercial properties in the
Elkridge, Maryland area to determine said fair market value. If one party fails
to so designate an appraiser within the time required, the determination of fair
market value of the one appraiser who has been designated by the other party
within the time required shall be binding on both parties. The appraisers shall
submit their determinations of fair market value to both parties within 30 days
after their selection. If the difference between the two determinations is 10%
or less of the higher appraisal, then the average between the determinations
shall be the fair market value of the Property. If said difference is greater
than 10%, then the two appraisers shall within 15 days of the date the second
determination is submitted to the parties designate a third appraiser who must
also be a qualified MAI appraiser. The sole responsibility of the third
appraiser will be to determine which of the determinations made by the first two
appraisers is most accurate. The third appraiser shall have no right to propose
a middle ground or any modification of either of the determinations made by the
first two appraisers. The third appraiser's choice shall be submitted to the
parties within 20 days after his or her selection. Such determination shall bind
both of the parties and shall establish the fair market value of the Property.
Each party shall pay equal shares of the fees and expenses of the third
appraiser. Fair market value for the purposes of this Article 35 shall mean the
then prevailing fair market value for Property comparable in size, quality and
location to the demised Property, and shall be based on the assumption that
Tenant has exercised both of its options to renew the Lease Term in accordance
with Article 34 at the then fair market rental rate.
35
35.1.5 No Recording. Tenant agrees it shall not record any memorandum
referencing its rights with respect to the Purchase Option without the prior
written consent of Landlord, which consent Landlord may withhold in its sole and
absolute discretion.
ARTICLE 36. Property Purchase Condition; Alternate Property Option
Tenant confirms that the effectiveness of this Lease with regard to
Tenant's leasing of the Property is conditioned upon Landlord acquiring fee
title to the Property. If Landlord is unable to acquire fee title to the
Property, then in addition to Tenant's obligations under Section 4.4(a) of the
Work Letter, Landlord shall have the right, at Landlord's sole option (the
"Alternate Property Option"), to be exercised by Landlord on or before November
15, 2007 (the "Alternate Property Period"), to identify and purchase an
alternative property located within the same general geographic location as the
Property for Tenant to lease in lieu of the Property (the "Alternate Property")
by giving Tenant notice of Landlord's election to do so. Notwithstanding the
foregoing, if Landlord enters into a purchase agreement to purchase an Alternate
Property before the expiration of the Alternate Property Period pursuant to the
terms of this Article 36 but Landlord elects not to purchase such Alternate
Property due to the discovery of a particular condition with respect to the
Alternate Property which makes the purchase of the Alternate Property not
feasible, the Alternate Property Period may be extended by Landlord for up to an
additional six (6) months by delivery of written notice to Tenant. Any Alternate
Property shall contain approximately the same rentable square footage as the
Building and shall have a layout sufficient to allow Landlord to build-out the
Alternate Property in accordance with the terms and conditions of the Work
Letter. If Landlord exercises the Alternate Property Option, this Lease and the
obligations of Landlord and Tenant under this Lease shall continue in full
effect during the Alternate Property Period, provided that the Commencement Date
shall not occur until the date of Mechanical/Electrical Completion with respect
to the Alternate Property. Notwithstanding the foregoing, if either (a) the
total cost set forth in the estimated project budget for the Alternate Property
exceeds the total cost set forth in the Project Budget attached to the Work
Letter Agreement, or (b) the Alternate Property requires material deferred
maintenance or other material rehabilitation or remediation work, Landlord shall
give notice thereof to Tenant (the "Alternate Property Notice") and Tenant shall
have the right to approve such Alternate Property within fifteen (15) business
days after receipt of the Alternate Property Notice, which approval shall not be
unreasonably withheld or delayed. If Tenant reasonably disapproves the Alternate
Property within the above 15 business-day period, Landlord shall not purchase
the Alternate Property disapproved by Tenant and Landlord shall either (i) seek
a new Alternate Property to purchase or (ii) terminate this Lease. If Tenant
fails to disapprove the Alternate Property within the above 15 business-day
period, Tenant shall be deemed to have approved the Alternate Property. If
Landlord has elected to not exercise the Alternate Property Option (or otherwise
fails to exercise the Alternate Property Option on or before the expiration of
the Alternate Property Period), or if Landlord exercises the Alternate Property
Option but is unable to acquire fee title to an Alternate Property during the
Alternate Property Period, or if Tenant disapproves of a particular Alternate
Property described in an Alternate Property Notice as provided above, then
Landlord shall have the right to terminate this Lease, in which case, the
Tenant's TI Contribution shall be returned to Tenant (less any Pre-Development
Costs Tenant has not otherwise paid to Landlord) and Landlord and Tenant shall
have no further obligations or liabilities under this Lease except for those
expressly intended to survive, including, without limitation, Tenant's
obligations under Section 4.4(a) of the Work Letter. If Landlord exercises the
Alternate Property Option and acquires fee title to an Alternate Property during
the Alternate Property Period, Tenant shall be obligated to lease the Alternate
Property and Landlord and Tenant shall enter into an amendment to this Lease (i)
modifying the definition of Property, the Base Annual Rental and such other
terms as are necessary to reflect that the Property have been replaced with the
Alternate Property and (ii) otherwise reaffirming the terms and conditions of
this Lease (including all exhibits attached thereto) and Landlord's and Tenant's
obligations hereunder.
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ARTICLE 37. Right of First Offer to Purchase
37.1 Grant of Right of First Offer to Purchase. Subject to the terms and
conditions of this Article 37, commencing on the first day of the one hundred
twenty-first (121st) month of the initial Term and continuing until expiration
of the initial Term (the "ROFO Period"), Tenant shall have the one-time right of
first offer to purchase the Property if at the time Tenant accepts Landlord's
Offer (i) Tenant has not assigned this Lease or subleased more than sixty
percent (60%) of the Premises, (ii) there has been no prior Tenant default under
this Lease and Tenant is not currently in default under this Lease, and (iii)
Tenant provides Landlord with documentary evidence demonstrating that Tenant has
sufficient financial resources available to be able to pay the Purchase Price
and to close the purchase within the time frame described below.
37.2 Landlord's Offer. If Landlord desires to sell the Property during the
ROFO Period, Landlord shall submit to Tenant a written offer ("Landlord's
Offer") identifying the price (the "Purchase Price") and all other terms and
conditions at which Landlord is willing to sell the Building Site. Within *(
business days after receipt of Landlord's Offer, Tenant shall give Landlord
written notice of Tenant's rejection or unqualified and unconditional acceptance
of Landlord's Offer and all of the terms and conditions contained therein,
accompanied by the documentary evidence described in Section 37.1 above. If
Landlord's Offer consists of proposed Purchase and Sale Agreement, Tenant shall
give such written notice by delivering an original of such Purchase and Sale
Agreement executed by Tenant. If Tenant fails to deliver such written notice
within such * business day period, Tenant shall be deemed to have rejected
Landlord's Offer.
37.3 Acceptance by Tenant. At Landlord's sole, subjective discretion,
Landlord's Offer (and any Purchase and Sale Agreement provided in connection
therewith) may provide for the following: (i) sale of the Property on an "as is"
basis without representations or warranties of any kind; (ii) a fifteen (15)-day
inspection and due diligence period (the "Inspection Period") following the date
the Purchase and Sale Agreement is executed by both parties; (iii) a cash
deposit equal to ten percent (10%) of the Purchase Price to be paid by Tenant to
Landlord upon execution of the Purchase and Sale Agreement, which funds shall be
held in escrow in an interest bearing account, shall be non-refundable to Tenant
after the Inspection Period for any reason other than a material default by
Landlord, and shall be applicable to the Purchase Price at the Close of Escrow;
(iv) all cash consideration; (v) closing within forty (40) days after full
execution of the Purchase and Sale Agreement; (vi) allocation of closing costs
(including title and escrow fees) in accordance with Elkridge County custom,
provided that all transfer taxes in connection with the sale of the Property
shall be paid by Tenant; and (vii) such other terms and conditions as Landlord
desires to include.
37.4 Rejection by Tenant. If Tenant rejects (or is deemed to have
rejected) Landlord's Offer, then Landlord shall be free to sell the Property
without regard to Tenant's right of first offer to purchase; provided, however,
that before entering into any agreement to sell the Property after Tenant
37
rejects (or is deemed to have rejected) Landlord's Offer for a price that is
lower than 90% of the Purchase Price, Landlord shall offer to sell the Property
to Tenant at the reduced price Landlord is willing to accept. In such event,
Landlord's written offer to Tenant to sell at the reduced price shall be treated
as a new Landlord's Offer subject to all of the provisions of this Exhibit,
except that if Tenant again rejects (or is deemed to have rejected) Landlord's
Offer (i.e., at the reduced price), then Landlord will have no further
obligation for the remainder of the ROFO Period or otherwise to present a
Landlord's Offer to Tenant with respect to the Property and Landlord shall
thereafter have the right to sell the Property to any party on any terms and
conditions that Landlord may thereafter negotiate without any obligation to
Tenant. Once the Property is sold to a third party after compliance by Landlord
with the terms of this Article 37, each of Tenant's Purchase Option (as
described in Article 35) and Tenant's right of first offer to purchase the
Property (as described in this Article 37) shall be null and void and of no
further force or effect, and Tenant shall execute, acknowledge and deliver to
Landlord a quitclaim deed in recordable form whereby Tenant quitclaims to
Landlord all of its right, title and interest in and to such Purchase Option,
such right of first offer or otherwise to purchase the Property or any portion
thereof (a "Quitclaim Deed"). The failure of Tenant to deliver a Quitclaim Deed
within ten (10) days of Landlord's request therefor shall constitute a material
default under this Lease.
37.5 Effect on Lease. If Tenant purchases the Property, this Lease shall
automatically terminate and be of no further force or effect and neither party
shall have any further rights or obligations under this Lease.
37.6 Termination of Tenant's Right of First Offer. If Tenant rejects (or
is deemed to have rejected) Landlord's Offer as provided above, or if Tenant
accepts Landlord's Offer and a default occurs under this Lease and/or Tenant
fails to close any transaction after accepting Landlord's Offer, then (in any of
those events) the provisions of this Article 37 shall be null and void and
Landlord shall then and at all times thereafter be free to sell the Building
Site to any person or entity upon whatever terms Landlord may find acceptable;
provided, however, that this Lease shall not be terminated as a result of any
default by Tenant or by the termination of the right of first offer unless
Landlord expressly elects to exercise any termination rights available to
Landlord under this Lease as a result of such default.
37.7 Excluded Transactions. Tenant's right of first offer to purchase
shall not apply with respect to any of the following transactions: (i) a sale at
foreclosure (or a deed in lieu of foreclosure) or any sale by a Landlord's
mortgagee following foreclosure (or a deed in lieu of foreclosure); (ii) an
exchange transaction or a tax deferred exchange transaction where the property
Landlord desires to receive in exchange for the property being relinquished by
Landlord cannot for any reason be acquired by Tenant for the purpose of the
exchange; (iii) a sale by one co-owner to another co-owner; (iv) a conveyance to
a corporation, partnership, limited liability company, trust or other form of
entity wholly or partially in exchange for stock, a partnership or membership
interest or other form of beneficial equity interest in such entity; (v) a
conveyance as part of a portfolio sale; or (vi) a conveyance to an affiliate of
Landlord, provided that the right of first offer to purchase shall survive any
transaction of the kind described in this clause (vi).
37.8 No Recording. Tenant agrees it shall not record any memorandum
referencing its rights with respect to the right of first offer without the
prior written consent of Landlord, which consent Landlord may withhold in its
sole and absolute discretion.
38
37.9 Right of First Offer Personal. The right of first offer herein
granted to Tenant is personal to the original named Tenant and may not be
exercised or assigned voluntarily or involuntarily by or to any person or entity
other than the original named Tenant.
ARTICLE 38. Miscellaneous
38.1 Gender. Whenever the singular number is used in this Lease, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders, and the word "person" shall include corporation, firm, or
association, when required by the context.
38.2 Headings. The headings or title to the paragraphs of this Lease are
for convenience only and do not in any way define, limit or construe the
contents of such paragraphs.
38.3 Integration. This instrument contains all of the agreements and
conditions made between the parties with respect to the hiring of the Property
and may not be modified orally or in any other manner other than by a written
instrument signed by all the parties to this Lease.
38.4 Choice of Laws. The laws of the State of Maryland as applied to
contracts entered into between citizens of the State of Maryland and to be
performed within the State of Maryland shall govern the validity, performance
and enforcement of this Lease.
38.5 Severability. If any provision of this Lease is determined to be void
by any court of competent jurisdiction, such determination shall not affect any
other provisions of this Lease and such other provisions shall remain in full
force and effect. If any provision of this Lease is capable of two
constructions, one which would render the provision void and one which would
render the provision valid, the provision shall be interpreted in the manner
which would render it valid.
38.6 Amendment for Financing. Upon written request of Landlord, Tenant
agrees to execute any lease amendments not materially altering the terms of this
Lease, if required by the first mortgagee or beneficiary of a deed of trust
encumbering real property of which the Property constitute a part ("Mortgagee")
incident to the financing of the real property of which the Property constitute
a part. Any change affecting the amount or timing of the consideration to be
paid by Tenant or modifying the term of this Lease shall be deemed as materially
alter the terms hereof.
38.7 Payments. Except as may otherwise be expressly stated, each payment
required to be made by Tenant shall be in addition to and not in substitution
for other payments to be made by Tenant.
38.8 Time of Essence. Time is of the essence in this Lease.
----------------
38.9 Force Majeure. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes thereof, governmental restrictions, regulations, or
controls, enemy or hostile governmental action, civil commotion, fire or other
casualty, and other causes beyond the reasonable control of the party obligated
39
to perform, shall excuse the performance by such party for a period equal to
that resulting from such prevention, delay or stoppage, except those obligations
of Tenant to make payment for rental and other charges pursuant to the terms of
this Lease and those obligations of tenant set forth in the Work Letter
Agreement.
38.10. Notices. All notices to be given by one party to the other under
this Lease shall be in writing, mailed or delivered to the other party at the
following addresses:
To Landlord: VIF II CEL-SCI Partners, LLC
Attn: Stan Wendzel
9811 Irvine Center Drive
Irvine, California 92618
Phone: (949) 498-2391; Fax: (949) 498-2397
with a copy to: VIF II CEL-SCI Partners, LLC
c/o AEW Capital Management
Attn: Asset Manager
World Trade Center East
Two Seaport Lane
Boston, Massachusetts 02210-2021
Phone (617) 261-9000; Fax: (617) 261-9555
To Tenant: Cel-Sci Corporation
Attn: Geert Kersten
8229 Boone Boulevard, Suite 802
Vienna, Virginia 22182
Phone: (703) 506-9460; Fax: (703) 506-9471
Mailed notices shall be sent by United States Postal Service, certified or
registered mail, postage prepaid, or via reputable overnight courier (e.g.,
Federal Express) and shall be deemed to have been given on the date of proof of
delivery.
Either party may, with proper notice, at any time designate a different
address to which notices shall be sent.
38.11. Brokers. Landlord and Tenant each represents to the other that it
has had no dealings with any real estate broker or agent in connection with the
negotiation and/or execution of this Lease and agree to indemnify and defend the
other against all liability, costs, expenses and charges arising from any claims
that may be made against them by any real estate broker, agent, finder, or other
person, alleging to have acted on behalf of Landlord or Tenant.
38.12. Confidentiality. During the course of this Lease the parties may
exchange certain financial statements, accounting records and other documents
that are clearly stamped "confidential" ("Confidential Information"). Landlord
and Tenant hereby acknowledge and agree that the Confidential Information of
40
each party is to be kept strictly confidential. Accordingly, except as may be
required by law or court order, neither Landlord nor Tenant will, without the
prior written consent of the other party, release, publish or otherwise
distribute (and shall not authorize or permit any other person or entity to
release, publish or otherwise distribute) any of the other party's Confidential
Information to any person or entity other than such party's prospective lenders
and purchasers of the Real Property and legal and financial advisors, each of
whom shall agree to hold such information strictly confidential as if such
persons were bound by the provisions of this Section 38.12. The obligations of
this Section 38.12 will not apply to information that the receiving party can
establish by written records (a) was known by it prior to the receipt of the
Confidential Information from the disclosing party; (b) was disclosed to the
receiving party by a third party having the right to do so; (c) was, or
subsequently became, in the public domain through no fault of the receiving
party, its officers, directors, employees or agents; or (d) was disclosed by the
receiving party pursuant to any judicial, governmental or stock exchange
request, requirement or order, so long as the receiving party provides the
disclosing party with sufficient prior notice in order to allow the disclosing
party to contest such request, requirement or order.
38.13 Memorandum of Lease. Tenant shall neither execute nor record a
memorandum of this Lease. Tenant shall execute, acknowledge and deliver at any
time after the date of this Lease, at the request of Landlord, a "memorandum of
lease" suitable for recording. Landlord may record such a memorandum of lease.
38.14 Absolute Net Lease. This Lease shall be deemed and construed to be
an "absolute net lease" and, except as herein expressly provided, the Landlord
shall receive all payments required to be made by Tenant, free from all charges,
assessments, impositions, expenses, deductions of any and every kind or nature
whatsoever. Landlord shall not be required to furnish any services or facilities
or to make any repairs, replacements, or alterations of any kind in or on the
Property. Tenant shall receive all invoices and bills relative to the Property
and, except as otherwise provided herein, shall pay for all expenses directly to
the person or company submitting a bill without first having to forward payment
for the expenses to Landlord. Tenant shall at Tenant's sole cost and expense be
responsible for the management of the Property, shall maintain the landscaping,
parking lot and shall make all additional repairs and alterations as required to
maintain the Property in the condition required under this Lease.
38.15 Waiver of Jury Trial. The parties hereby waive their respective
rights to trial by jury in any action or proceeding involving the Property or
arising out of this Lease.
38.16 Americans with Disabilities Act. Since compliance with the Americans
with Disabilities Act (ADA) is dependent on Tenant's specific use of the
Property, Landlord makes no warranty or representation as to whether or not the
Property comply with the ADA or any similar legislation. In the event that
Tenant's use of the Property requires modifications or additions to the Property
in order to be in ADA compliance, Tenant agrees to make any such necessary
modifications and/or additions at Tenant's expense.
38.17 Execution in Counterparts. This Lease may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of
41
such counterparts shall constitute one agreement. To facilitate execution of
this Lease, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
[Signature Page Follows]
42
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year set forth at the beginning hereof.
LANDLORD: TENANT:
VIF II CEL-SCI Partners, LLC, CEL-SCI CORPORATION,
a Delaware limited liability company a Colorado corporation
By: /s/ Stan Wendzel By: /s/ Geert R. Kersten
Name: Stan Wendzel Name: Geert R. Kersten
Title: Managing Member Title: Chief Executive Officer
43
EXHIBIT A
DESCRIPTION OF PROPERTY
*
EXHIBIT B
CONCEPTUAL FLOOR PLAN
(See Schedule 7 to Work Letter Agreement)
EXHIBIT C
FORM OF OFFICER'S CERTIFICATE
[Date]
[___] LLC
Attn: Stan Wendzel
9811 Irvine Center Drive
Irvine, CA 92618
Re: Lease Agreement: Officer's Certificate
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 3.6.3 of that certain
Lease Agreement dated as of [ ] (the "Lease"), by and between [_____________]
LLC, a [______] limited liability company ("Landlord") and [_____________],
Inc., a [______] corporation ("Tenant"). Tenant hereby represents, warrants and
certifies that:
(a) [Choose one:][(1): The value of Tenant's cash and Cash Equivalents
during the calendar quarter ending [ ] is equal to or greater than the Cash
Threshold as defined in Section 3.6 of the Lease: The value of Tenant's cash and
Cash Equivalents during the calendar quarter ending [ ] is less than the Cash
Threshold as defined in Section 3.6 of the Lease.]
(b) [If Applicable:][The value of Tenant's cash and Cash Equivalents has
been equal to or greater than the Cash Threshold as defined in Section 3.6 of
the Lease for the following two consecutive calendar quarters: [ ] and [ ].]
The Landlord is entitled to rely on each of these representations,
warranties and certifications. Capitalized terms used in this certificate that
are otherwise not defined shall have the meaning assigned in the Lease.
CEL-SCI CORPORATION,(1)
a Colorado corporation.
By:
----------------------------------------
Name:
Title:
EXHIBIT D
WORK LETTER
(See Following Pages)
WORK LETTER AGREEMENT
(Cel-Sci Manufacturing Facility/* Maryland)
THIS WORK LETTER AGREEMENT (this "Work Letter"), made between VIF II
CEL-SCI PARTNERS, LLC, a Delaware limited liability company ("Landlord"), and
CEL-SCI CORPORATION, a Colorado corporation ("Tenant"), as of June 6, 2007,
forms part of the Lease of even date herewith between Landlord and Tenant (the
"Lease"). The terms, conditions and covenants set forth herein shall have the
same force and effect as if set forth verbatim in the body of the Lease. If
there is any conflict between the Lease and this Work Letter with respect to the
construction of the Improvements, this Work Letter shall control.
ARTICLE I
DEFINED TERMS
As used herein, all capitalized terms used in this Work Letter and not
defined herein have the meanings assigned them in the Lease, and:
1.1 "Alternate Property" has the meaning specified in the Lease.
1.2 "Alternate Property Purchase Agreement" means the purchase agreement for the
purchase of the Alternate Property in the event escrow fails to close under the
Purchase Agreement and Landlord elects to purchase the Alternate Property.
1.3 "Architect" means Gaudreau Inc., or such other architectural firm
reasonably acceptable to Landlord and Tenant.
1.4 "Aseptic Fill Suite" means the cGMP compliant fill/finish suite designed and
manufactured by *.
1.5 "Baseline Documents" has the meaning specified in Paragraph 2.1(a) below.
1.6 "Budgeted Project Cost" means the total of Project Cost specified on the
Project Cost Budget to be attached hereto as Schedule 1, adjusted hereafter only
as follows: (A) increased by the aggregate net additions to Project Cost
resulting from Value Engineering Changes, changes required to comply with
applicable Requirements, Tenant Changes, Tenant Delays, Force Majeure or
additional costs due to the Improvements being constructed at the Alternate
Property, if applicable, and (B) decreased by the aggregate net reductions in
Project Cost resulting from Value Engineering Changes, Tenant Changes and
reductions in the "contingency" amount in the Project Budget.
1.7 "Building" means the approximately 73,025 square foot building located on
the Property.
1.8 "Building Permits" means the non-discretionary governmental permits or
approvals legally required to perform actual construction of the Improvements,
expressly excluding (i) any permits or approvals Tenant is required to obtain
pursuant to the Purchase Agreement, (ii) any other permits or approvals
regarding environmental matters and (iii) any FDA validation of the
manufacturing area within the Building.
1
1.9 "Built-Out/Improved Space" means any space that has HVAC, drop ceilings,
demising walls, lighting and flooring and which can be utilized as either
office, lab, manufacturing (biologics), cafeteria or tech space. The total
amount of Built-Out/Improved Space within the Premises shall in no event be less
than 28,000 total square feet, of which, a maximum of (i) 15,000 square feet may
consist of manufacturing (biologics) space and (ii) 4,000 square feet may
consist of [utility/clean room] space.
1.10 "Business Days" means all Days, excepting Saturdays, Sundays and bank
holidays.
1.11 "Commencement Date" means the date on which the Improvements have been
Mechanically/Electrically Completed, as set forth in Section 2.1 of the Lease.
1.12 "Conditional Occupancy Permit" means a conditional occupancy permit, a
temporary certificate of occupancy, or a substantial equivalent, issued by the
applicable Governmental Authority within the jurisdiction in which the Property
is located, legally permitting Tenant's occupancy of the Premises.
1.13 "Construction Contract" means a GMAX contract for construction of the
Improvements between Landlord and the General Contractor or an Other Contractor
as described in Section 3.1.
1.14 "Contractor" means any of the General Contractor, Other Contractors or
Subcontractors.
1.15 "Cost Savings Incentive Fee" means the fee payable to Landlord if the final
Project Cost is less than the amount set forth in the Project Budget (defined
below), whether resulting from scope changes, Value Engineering Changes,
negotiated decreases or otherwise (provided that no Cost Savings Incentive Fee
shall be paid with regard to the "G.C. Contingency (within GMP)" line item set
forth on page 1 of Schedule 1 (Project Budget) attached hereto), which fee shall
be an amount equal to fifty percent (50%) of the difference between such Project
Budget and the final Project Cost.
1.16 "Days" means calendar days.
1.17 "Design Development Plans" means the stage at which the Plans are
approximately sixty percent (60%) complete.
1.18 "Development Management Fees" means an aggregate amount equal to 3.00% of
the total Project Cost payable to Landlord as provided herein, provided that for
purposes of determining the Development Management Fees, total Project Costs
shall not include any Development Management Fees.
1.19 "Direct Costs" means the costs of constructing the Improvements, including,
without limitation, any and all (i) costs of all on-site and off-site
preparation work, (ii) costs of labor and materials, (iii) contractors' and
subcontractors' fees and general conditions, (iv) contractor insurance and bond
2
premiums, (v) sales, use and other taxes on any of the foregoing and (vi) until
allocated or eliminated from the Project Budget, contingency allowances.
1.20 "Engineer" means *.
1.21 "Excess Cost" means the amount, if any, by which the Budgeted Project Cost
(including any revised Budgeted Project Cost) exceeds the sum of Landlord's
Share of Project Cost plus Tenant's TI Contribution (as defined in the Lease).
1.22 "Final Plans" means the construction plans and specifications for the
Improvements (or any part thereof) as certified by the Engineer and stamped by
the relevant Governmental Authority in conjunction with the issuance of the
Building Permits for the Improvements. For confidentiality purposes, any
information provided in the Final Plans for purposes of obtaining the Building
Permits shall be limited to only such information as is necessary to obtain the
Building Permits and shall not require the disclosure of specific room names,
equipment placement or other Tenant business-specific items.
1.23 "Financing Costs" means the following amounts to cover Landlord's cost of
funds: (A) any fees, points, commissions or other compensation payable by
Landlord in connection with any financing secured by Landlord for the Project
Cost, and (B) the 3 month LIBOR rate plus 2.75% per year on each monthly advance
of Landlord's Share of Project Cost, computed and accrued each month on the
basis of a 360-day year comprised of 12 months of 30 days each, from the date
such advance is made until the Commencement Date.
1.24 "Force Majeure" means any cause beyond Landlord's reasonable ability to
avoid or control, including, without limitation: (A) fire, explosion and other
sudden force where due to natural or unknown causes or the fault of others; (B)
earthquake and other earth movement; (C) flood, storm, and other natural
disasters; (D) unusually inclement weather (when compared with the 30 year
normal precipitation figures for Elkridge, Maryland, as compiled by the National
Oceanographic and Atmospheric Administration); (E) hurricanes, tornadoes and
other unusually violent storms; (F) war and civil disturbance; (G) vandalism,
theft and other criminal acts of third parties; and (H) to the extent not
preventable by commercially reasonable measures on the part of Landlord or
Tenant, as applicable, (i) labor unrest or disputes including strikes and
slow-downs, (ii) unavailability of needed equipment, materials, supplies or
services, (iii) interruption of transportation or utilities, (iv) undisclosed
field conditions, and (v) acts or failure to act on the part of Governmental
Authorities (including, without limitation, moratoria on or other delays not due
to the fault of Landlord or its agents in the processing or issuance of any
required license, permit or approval). Without limiting the generality of the
foregoing, for purposes of this Work Letter, "Force Majeure" shall also include
undisclosed field conditions and previously unannounced changes by Governmental
Authorities (such as inspectors) in the interpretation or application of
Requirements, whether formal or informal, written or oral.
1.25 "General Contractor" means BE&K Building Group, Inc., 8000 Towers Crescent
Drive, Vienna, Virgina, or such other firm as Landlord in accordance with
Paragraph 3.1 may engage as the general contractor for Landlord's Work with the
prior reasonable approval of Tenant; provided, however, that Landlord shall not
be required to obtain Tenant's approval of any general contractor or
subcontractor performing exterior improvements to the Property, it being
understood that Landlord may select such general contractor or subcontractor in
Landlord's sole, subjective discretion.
3
1.26 "General Contractor's Estimated Budget" means the estimated budget attached
hereto as Schedule 3 which sets forth the estimated Project Cost based on major
facility components.
1.27 "Governmental Authority" means any governmental or quasi-governmental
agency having jurisdiction over the Land or any portion of the Improvements
and/or exercising approval rights with respect to the issuance of a Building
Permit.
1.28 "Improvements" means the work required to complete construction of a
clinical bio-manufacturing facility in accordance with the Final Plans.
1.29 "Indirect Costs" means the (i) fees and expenses of any engineers and other
design professionals or consultants, (ii) permitting and inspection fees, (iii)
Landlord insurance costs during the period of design and construction of the
Improvements, (iv) legal fees and expenses incurred in connection with the legal
documentation and financing of the Project, and (v) other items identified as
Indirect Costs in the Project Budget to be attached as Schedule 1.
1.30 "Landlord's Representative" means the individual from time to time
designated to act as such by Landlord, in a written notice to Tenant. Initially,
Landlord's Representative shall be Stan Wendzel.
1.31 "Landlord's Share of Project Cost" means the amount contributed by Landlord
to fund the Project Cost, which amount shall not exceed [$11,850,000.00] plus
the amount of fees, points, commissions or other compensation payable by
Landlord in connection with any financing secured by Landlord for the Project
Cost.
1.32 "Landlord's Work" means the construction of the Improvements.
1.33 "Mechanical/Electrical Completion" and variants (such as "Mechanically/
Electrically Complete") means completion of Landlord's Work to the point where
(i) construction is sufficiently complete, in accordance with the Final Plans,
so that Tenant can occupy the Premises and use the Premises for the permitted
use set forth in the Lease, (ii) commissioning (as defined in Tenant's
commissioning plan) and acceptance testing has been completed in order to
satisfy the Installation Qualification (IQ) requirements contained in the
Validation Master Plan and the manufacturers' specifications, and (ii) Landlord
has obtained a Conditional Occupancy Permit for the Improvements and the General
Contractor has certified that the Improvements are ready for start-up, with all
of the foregoing subject only to (A) Punchlist Items and (B) Tenant's completing
its own fitting out and equipping of such space (with improvements, equipment
and installations that are not specifically covered by the Final Plans and thus
are not part of the Improvements).
1.34 "Other Contractor" means any contractor, other than the General Contractor,
engaged directly by Landlord to perform any exterior work to the Building, which
Other Contractors may be selected by Landlord in Landlord's sole, subjective
discretion.
4
1.35 "Outside Date" means the date which is designated as the Outside Date in
the Project Schedule, as extended by Force Majeure but without extension for
Tenant Delays.
1.36 "Plans" means, as of any given time, the current stage of the plans,
drawings, specifications and/or construction documents prepared by the Engineer
and its consultants, or other design specialists engaged by Landlord, for the
Improvements.
1.37 "Pre-Development Costs" means costs incurred by Landlord with respect to
the Improvements prior to acquisition of the Property (or Alternate Property) by
Landlord, including, without limitation, costs for zoning and other entitlement
work, preliminary design and engineering work and related legal work.
1.38 "Preliminary Plans" means the stage at which the Plans are approximately
fifty percent (50%) complete.
1.39 "Project Budget" means the Project Budget to be attached to this Work
Letter as Schedule 1, as adjusted in accordance with this Work Letter.
1.40 "Project Cost" means all of the Property Acquisition Costs, and all costs
of preparing the Premises, Building and Property for the Improvements and
designing, constructing and fixturing the Improvements, as described in the
Project Budget, including, but not limited to, Pre-Development Costs, Direct
Costs, Indirect Costs and Financing Costs.
1.41 "Project Schedule" means the Project Schedule to be attached to this Work
Letter as Schedule 2, as adjusted in accordance with this Work Letter.
1.42 "Property" means the property on which the Premises and Building are
located and which is to be purchased by Landlord under the Purchase Agreement.
1.43 "Property Acquisition Costs" means the actual cost to Landlord of acquiring
the Property, including, without limitation, (i) the Purchase Price, (ii) legal
fees and other expenses of negotiating, documenting and closing under the
Purchase Agreement, (iii) costs of pre-acquisition due diligence with respect to
the Property, (iv) title insurance premiums, survey costs, transfer taxes,
recording fees, escrow charges and other customary closing costs, to the extent
paid by Landlord, (v) to the extent the Property is part of a larger parcel of
land, costs of legally severing the Property from the larger tract of land of
which it is part, including fees and expenses incurred in preparing, filing, and
prosecuting any applications for a lot split, parcel or subdivision map and the
costs of complying with the terms and conditions of any governmental approval
therefor and (vi) the costs of testing for, monitoring and remediating any
existing contamination of the Property by Hazardous Substances.
1.44 "Punch List Items" has the meaning specified in Paragraph 3.6 below.
1.45 "Purchase Agreement" means that certain Purchase and Sale Agreement, dated
March 21, 2007, between San Tomas Properties, LLC and BioProperties, Inc.].
1.46 "Purchase Price" means the purchase price to be paid by Landlord for the
Property under the Purchase Agreement, or if Landlord elects to purchase the
Alternate Property, then the purchase price to be paid by Landlord for the
Alternate Property under the Alternate Property Purchase Agreement.
5
1.47 "Site Plan" means the preliminary site plan attached to this Work Letter as
Schedule 5 for the Building to be located on the Land.
1.48 "Stage of the Plans" means each stage of development of the Plans; namely,
the Preliminary Plans, Design Development Plans and Final Plans.
1.49 "Start of Construction" means the date on which Landlord has obtained the
Building Permits and has actually commenced construction of the Improvements
pursuant to such Building Permits.
1.50 "Subcontract" means a contract between the General Contractor, an Other
Contractor, or a higher-tier Subcontractor, on the one hand, and a
Subcontractor, on the other hand, for the provision of labor, materials and/or
equipment for some portion of the Improvements.
1.51 "Subcontractor" means any firm engaged (but not by Landlord) to provide
labor, materials and/or equipment for some portion of Landlord's Work.
1.52 "Target Completion Date" means the date which is designated as the targeted
date for Mechanical/Electrical Completion in the Project Schedule, as extended
by Force Majeure and Tenant Delays.
1.53 "Tenant Change" means any change in the Plans initiated by Tenant (to the
extent permitted under this Work Letter) and shall include, without limitation,
any (A) change in scope of work, (B) addition or deletion of specified elements
of the Improvements, and/or (C) change in the specified grade or quality,
manufacturer or supplier of materials, fixtures or equipment; but shall not
include (i) Value Engineering Changes, (ii) changes required to comply with
applicable Requirements (unless resulting from a change in Tenant's proposed use
of the Improvements) or (iii) changes required to correct or clarify design,
engineering or construction errors.
1.54 "Tenant Delay" means any delay in the acquisition of the Property or the
design and construction of the Improvements caused by an act or wrongful failure
or delay in acting on the part of Tenant or any of Tenant's employees, agents or
contractors, including, but not limited to, (A) any failure of Tenant to provide
notice of approval or objection within specified time periods, even if such
failure is deemed to be approval, (B) any delays resulting from Tenant's failure
properly to coordinate the work of Tenant's contractors and consultants with
Landlord's Work, (C) Tenant Changes, (D) any interference by Tenant or any of
Tenant's employees, agents or contractors with the construction of the
Improvements, including, without limitation, any interference during the
exercise of any inspection rights pursuant to Paragraphs 3.4, 6.1, 6.2 and/or
6.3, below, and/or (D) any act or failure identified as an occasion of Tenant
Delay in this Work Letter or any provision of the Lease, but excluding the
exercise of Tenant's rights of review, approval and objection with respect to
the Baseline Documents so long as timely and properly exercised hereunder. In
the event of any Tenant Delay(s), the Commencement Date under the Lease shall be
accelerated by the number of days of those Tenant Delays.
6
1.55 "Tenant's Representative" means the individual from time to time designated
to act as such by Tenant, in a written notice to Landlord. Initially, Tenant's
Representative shall be William Brooke Jones.
1.56 "Validation Master Plan" means that certain specific plan prepared by a
third party designated by Tenant and reasonably approved by Landlord setting
forth the minimum Installation Qualification (IQ) and Operational Qualification
(OQ) requirements required to achieve Mechanical/Electrical Completion, which
plan, once finalized and approved, shall be attached to this Work Letter by way
of amendment.
1.57 "Value Engineering Changes" shall mean cost-savings changes proposed by
Landlord or Project Manager (or any of the consultants or contractors engaged by
Landlord or Tenant), excluding material reductions in the size of any of the
Buildings or other material reductions in the scope of Landlord's Work as set
forth in the approved Baseline Documents, except as may be required by Landlord
pursuant to Paragraph 4.2(a) below. In particular, in no event shall any changes
be made to any Tenant specified equipment, utilities or aseptic core design
(e.g., autoclaves, fill machines). Tenant shall approve any proposed Value
Engineering Changes within three (3) days after receipt of such proposed changes
from Landlord, provided that if Tenant reasonably determines that the proposed
Value Engineering Change will require review by an additional engineer or other
consultant, Tenant shall give Landlord written notice of the need for such
additional review within the above 3-day period, in which case, Tenant shall
have an additional ten (10) days from delivery of such notice to Landlord to
approve the proposed Value Engineering Change. If Tenant fails to disapprove the
proposed Value Engineering Changes within the above 3-day period (or additional
10-day period, if applicable), Tenant shall be conclusively deemed to have
approved the proposed Value Engineering Changes. If Tenant disapproves the
proposed Value Engineering Change within the above 3-day period (or additional
10-day period, if applicable), Landlord shall not implement the Value
Engineering Change.
ARTICLE II
DESIGN DEVELOPMENT AND APPROVAL
Landlord and Tenant hereby acknowledge their mutual intent that Landlord
cause the Improvements to be constructed within the Premises and
Mechanically/Electrically Completed by the Target Completion Date, substantially
as contemplated in the Preliminary Plans and more or less in the locations
indicated on the Site Plan attached hereto as Schedule 5, subject to the
Requirements of Governmental Authorities (including, but not limited to, all
applicable local code requirements) and by unanticipated field conditions
(including, but not limited, to conditions requiring remediation or other
corrective or prophylactic measures) or otherwise made in accordance with this
Work Letter. Subject to Force Majeure and Tenant Delay, Landlord shall use all
commercially reasonable efforts to complete Landlord's Work in accordance with
the Final Plans and within the limits of the Project Budget and the Project
Schedule. The Parties shall develop the design of the Improvements in accordance
with the following procedures:
7
2.1 Baseline Documents; Preliminary Plans.
(a) Landlord and Tenant hereby approve the Project Budget, Project Schedule, and
General Contractor's Estimated Budget attached hereto as Schedules 1, 2 and 3,
respectively. As soon as reasonably practicable and, in any event, within
[**sixty (60) days**--subject to verification with consultants and engineers]
after the Landlord has obtained financial partner investment committee approval
of the Lease and the Property purchase ("Committee Approval"), Landlord shall
have the Preliminary Plans prepared and submitted to Tenant for approval
pursuant to the procedure set forth below in this Section 2.1, which together
with the Project Budget, Project Schedule and General Contractor's Estimated
Budget, collectively constitute the "Baseline Documents". Notwithstanding the
foregoing, if Landlord exercises the Alternate Property Option (as defined in
the Lease), the Baseline Documents (i.e., Project Budget, Project Schedule,
General Contractor's Estimated Budget and Preliminary Plans) shall be revised to
reflect the build-out for the Alternate Property (the "Alternate Baseline
Documents") and shall be submitted to Tenant for approval pursuant to the
following procedure:
(b) Within fifteen (15) Business Days after the Preliminary Plans (or Alternate
Baseline Documents, as applicable) are initially submitted to Tenant for
approval, Tenant shall give Landlord's Representative and the Engineer written
notice (in reasonable detail) of each change that Tenant reasonably requires in
such proposed Preliminary Plans (or Alternate Baseline Documents, as applicable)
(an "Objection Notice"). All changes so required by Tenant shall constitute
Tenant Changes.
(c) Upon receiving a timely and proper Objection Notice from Tenant with respect
to the proposed Preliminary Plans (or Alternate Baseline Documents) and subject
to Paragraph 2.1(c), below, Landlord shall cause the Engineer, as promptly as
practicable but in all events within ten (10) business days after receipt of a
timely and proper Objection Notice from Tenant, to have such proposed
Preliminary Plans (or Alternate Baseline Documents) revised to incorporate each
of the changes reasonably required by Tenant and resubmitted to Tenant for
approval. Tenant shall have five (5) Business Days after receiving such revised
Preliminary Plans (or Alternate Baseline Documents) to give Landlord's
Representative and the Engineer any Objection Notice, and Tenant's right to
object to such revised Preliminary Plans (or Alternate Baseline Documents) shall
be limited to changes required to correct any failure of the revised Preliminary
Plans (or Alternate Baseline Documents) properly to reflect the changes in
Tenant's initial Objection Notice to such proposed Preliminary Plans (or
Alternate Baseline Documents). If necessary, this process shall be repeated
(subject to the same five (5) Business Day period in which Tenant may give an
Objection Notice) until the Preliminary Plans (or Alternate Baseline Documents)
have been approved by Tenant.
(d) Notwithstanding the foregoing, if Landlord and/or Engineer reasonably
determine that the changes set forth in any Objection Notice are not consistent
with the overall design of the Improvements or would otherwise impair or
interfere with the functionality of the Improvements or Building or Landlord's
ability to develop the remainder of the Building and Property, Landlord and/or
engineer may notify Tenant in writing thereof, describing in reasonable detail
the basis for Landlord's and/or Engineer's determination (the "Response
Notice"). Tenant shall have five (5) Business Days after receiving such Response
Notice to give Landlord's Representative and the Engineer either (i) a revised
Objection Notice reflecting the comments set forth in the Response Notice, or
(ii) written notice confirming Tenant's withdrawal of the Objection Notice and
8
that Tenant has approved the Preliminary Plans (or Alternate Baseline
Documents). Landlord and Tenant agree to work reasonably with each other to
reach agreement on any Objection Notices delivered by Tenant.
(e) Unless and except to the extent that Tenant gives a timely and proper
Objection Notice to the proposed Preliminary Plans (or Alternate Baseline
Documents) submitted to Tenant for approval (or a revised Objection Notice to
the extent a Response Notice has been given), Tenant shall be deemed to have
approved the same (and all of the elements and details therein).
(f) Once the Preliminary Plans (or Alternate Baseline Documents) have been
approved (or deemed approved) by Tenant in accordance with this Paragraph 2.1,
Landlord and Tenant shall promptly prepare and execute an amendment to this Work
Letter in order to incorporate the components of the approved Baseline Documents
(or Alternate Baseline Documents) herein as follows: (i) the Preliminary Plans
shall be attached and incorporated as a new Schedule 6 to this Work Letter, or
(ii) if the Alternate Property Option has been exercised, the revised Project
Budget, Project Schedule and General Contractor's Estimated Budget comprising
the Alternate Baseline Documents shall be attached and replace the existing
Schedule 1, Schedule 2 and Schedule 3 attached to this Work Letter.
2.2 Subsequent Development of Plans.
(a) Following approval of the Baseline Documents (or Alternate Baseline
Documents), Landlord shall cause the Plans to be further developed consistent
with the Baseline Documents (or Alternate Baseline Documents) (subject to such
changes as any Governmental Authority may require as a condition to the timely
issuance of a Building Permit) until production of the Final Plans, and Tenant
shall have no further approval rights with respect thereto except for any
changes required by any Governmental Authority (which approval for Governmental
Authority required changes shall not be unreasonably withheld or delayed);
however, upon completion of the Design Development Plans, Landlord shall provide
Tenant with a copy of the Design Development Plans and Landlord and Tenant (and
their respective representatives and consultants, as applicable) shall, no
sooner than three (3) business days after Tenant receives a copy of the Design
Development Plans, meet to review and discuss the Design Development Plans for
the limited purposes of confirming that they conform to the approved Baseline
Documents and of keeping Tenant informed with respect to the further development
of the Plans.
(b) Tenant acknowledges that Landlord shall have no obligation to make any
changes to the Baseline Documents or Alternate Baseline Documents (or any
subsequent Stage of the Plans) requested by Tenant following approval of the
Baseline Documents (or Alternate Baseline Documents) other than those changes
correcting any mistakes or omissions of design elements previously agreed to by
Landlord and Tenant; provided, however, that if Landlord agrees to make any such
changes, such changes shall constitute Tenant Changes and all additional costs
related thereto shall constitute increases in the Project Cost, including,
without limitation, costs for re-design work or the incremental cost of the
changed elements, costs for possible delay, and costs for labor and any
materials already ordered on the basis of the approved Baseline Documents.
9
2.3 Revisions to Project Budget and Project Schedule.
(a) After completion of each of the Design Development Plans and the Final
Plans, Landlord shall, as promptly as practicable, prepare and deliver to Tenant
for Tenant's information only a revised Project Budget and revised Project
Schedule, reflecting Landlord's reasonable estimation of the total Project Cost
and the critical path timeline for Mechanical/Electrical Completion of
Landlord's Work, based on each such Stage of the Plans. With such revised
Project Budget and Project Schedule, Landlord shall provide a schedule
detailing, with respect to any Tenant Changes incorporated in such Stage of the
Plans, the increase in cost and/or time (if any) estimated to result from such
change, provided that Tenant shall have no approval rights with respect thereto.
(b) Also, at any other time that Landlord reasonably determines that the Project
Budget or the Project Schedule has been adversely impacted by any Force Majeure
events, Landlord shall, as promptly as practicable, prepare and deliver to
Tenant for Tenant's information a revised Project Budget and revised Project
Schedule, reflecting Landlord's reasonable estimation of the total Project Cost
and the critical path timeline for Mechanical/Electrical Completion of
Landlord's Work as affected by such event(s).
(c) If a revised Project Budget shows an increase in Project Cost (A) over and
above the amount of the Project Cost set forth in the Project Budget initially
approved as part of the Baseline Documents, including any further increase in
the excess of Project Cost over said amount, or (B ) resulting in (or
increasing) Excess Costs, or if a revised Project Schedule shows a delay
(including any further delay) in the scheduled date of Mechanical/Electrical
Completion beyond the Target Completion Date, then Landlord shall, at Tenant's
written request, use reasonable efforts to propose additional Value Engineering
Changes or time-saving changes to eliminate or reduce such increase.
(d) Landlord shall notify Tenant (for Tenant's information only, without any
approval rights) from time to time promptly after Landlord determines that any
Tenant Change or any other unforeseen change not resulting from the negligence
or willful misconduct of Landlord will cause an increase in the Budgeted Project
Cost of more than one hundred thousand dollars ($100,000.00).
2.4 Record Drawings. As soon as practicable following Mechanical/Electrical
Completion, Landlord shall deliver to Tenant two (2) paper copies and one (1)
electronic copy of the record drawings for the electrical and control systems of
the Improvements (and of any other record drawings Landlord may obtain for the
Improvements from the Engineer and/or the General Contractor) for the purpose of
facilitating safe and efficient operation and maintenance of such systems by
Tenant and its contractors or consultants.
ARTICLE III
CONSTRUCTION OF LANDLORD'S WORK
3.1 Selection of Contractors. At such time as Landlord deems appropriate
(estimated to be approximately upon completion of the Design Development
Documents), Landlord shall engage the General Contractor under the Construction
10
Contract (which shall be a guaranteed maximum price ("GMAX") contract consistent
with the Project Budget and Project Schedule as then approved), shall deliver to
Tenant written notification of the amount of the GMAX, and shall cause the
General Contractor, in consultation with Landlord, to select the primary
Subcontractors, for performance of Landlord's Work. Before entering into the
Construction Contract, Landlord shall provide Tenant with a copy of the proposed
final Construction Contract for Tenant's approval, which approval shall not be
unreasonably withheld or delayed. If Tenant fails to disapprove the proposed
Construction Contract within three (3) business days after receipt, Tenant shall
be conclusively deemed to have approved the Construction Contract. If Tenant
timely disapproves the Construction Contract within the above 3-business day
period, Landlord shall attempt to negotiate the changes requested by Tenant with
the General Contractor and shall deliver any revised Construction Contract to
Tenant for review. The above-process shall continue until the Construction
Contract has been approved by Landlord, Tenant and General Contractor. Also, at
such time as Landlord deems appropriate, Landlord shall select and engage any
Other Contractor(s) required for completion of any exterior portion of
Landlord's Work. In selecting the Contractors for Landlord's Work, Landlord
shall be free to employ such methods (and to direct the General Contractor, in
the selection of Subcontractors, to employ such methods), including (but not
limited to) competitive bidding and negotiation of contract price, competitive
bidding and negotiation of fees and general conditions or negotiated contract,
as Landlord deems appropriate in its reasonable judgment.
3.2 Permits. Landlord shall be responsible for obtaining, on a timely basis, any
Building Permits required in connection with Landlord's Work. Fees and other
charges for any such Building Permits (and other costs incurred in obtaining any
such Building Permits) shall be part of Project Cost. Tenant shall be
responsible, at Tenant's sole cost and expense and not as part of Project Cost,
for obtaining any other permits and approvals required in connection with the
Land, the project and/or Tenant's intended use and operation thereof, including,
without limitation, any radiological permits and/or licenses, any permits or
approvals Tenant is required to obtain pursuant to the Purchase Agreement and
any other permits or approvals regarding environmental matters and/or air
clearance.
3.3 Completion of Landlord's Work. Subject to Force Majeure and Tenant Delays,
Landlord shall (A) cause Landlord's Work to be completed in accordance with the
Final Plans subject to all applicable Requirements, and (B) use its commercially
reasonable efforts to cause Landlord's Work to be Mechanically/Electrically
Completed by the Target Completion Date, provided, however, that if Landlord's
Work is not Mechanically/Electrically Completed by the Target Completion Date,
or by the Outside Date, the Lease shall not be void or voidable and Landlord
shall have no liability to Tenant with respect thereto. Landlord shall give
Tenant prompt written notice of Mechanical/Electrical Completion and shall also
give Tenant written notice of the anticipated date of Mechanical/Electrical
Completion at least thirty (30) days in advance of such anticipated date.
3.4 Inspection Rights. Subject to coordination with Landlord's Representative
and Tenant's access rights under Section 6.2, below, upon a minimum twenty-four
(24) hours prior notice, Tenant's Representative shall be permitted access to
the Premises during the construction of Landlord's Work to inspect the progress
of such work and Tenant's Representative may be accompanied by a reasonable
number of Tenant's employees and consultants, not to exceed five (5) without the
express consent of Landlord. Tenant shall cause Tenant's Representative and any
11
other individuals accompanying Tenant's Representative to comply with all
applicable terms and conditions of the Lease and all reasonable rules of the
General Contractor or Landlord regarding access to and activities on the
Premises during construction of Landlord's Work, including, without limitation,
the maintenance by Tenant and its contractors and subcontractors of workers'
compensation and public liability and property damage insurance in amounts and
with companies and on forms satisfactory to Landlord, with certificates of such
insurance being furnished to Landlord prior to their entry onto the Premises and
all other applicable terms and conditions of the Lease.
3.5 Project Meetings; Reports. During construction of Landlord's Work, Landlord
shall conduct meetings every week (or as frequently as Landlord and Tenant may
otherwise elect) with the Tenant Representative (and such other representatives
as Tenant may designate) to discuss the performance and progress of such work.
Further, Tenant's Representative shall be given reasonable advance notice of,
and have the right to attend, weekly (or other regularly scheduled) construction
site meetings between Landlord, the General Contractor and other members of the
design/construction team for the project, and Tenant's Representative shall
timely receive copies of all of the minutes of such meetings. Landlord shall
prepare and submit to Tenant's Representative monthly reports showing the
progress of Landlord's Work to date as compared to the Project Budget and the
Project Schedule. From time to time, Landlord shall also make such formal
presentations to Tenant regarding the project as Tenant may reasonably request.
3.6 Punch List Items. Within fifteen (15) business days following Mechanical/
Electrical Completion, Tenant shall be entitled to inspect the Improvements and
provide Landlord with a written "punch list" setting forth all items not
constructed in substantial accordance with the Final Plans (the "Punch List
Items"). Any items other than the Punch List Items specifically set forth on
such written punch list shall be deemed to be waived by Tenant and not a part of
the Punch List Items. Landlord shall repair (or cause its Contractors to repair)
all Punch List Items, as part of Landlord's Work, within thirty (30) days after
receipt of the punch list, or if repair would take longer than thirty (30) days,
Landlord shall start the repair within this thirty (30) day period and
diligently prosecute the repair to completion. Landlord shall, however, be under
no obligation to repair any items other than the Punch List Items. Landlord
shall also be under no obligation to repair any damage caused by, through or
under Tenant or any of its employees, agents or contractors (excluding Landlord
or its Contractors), and all such damage shall be promptly repaired by Tenant at
Tenant's sole cost and expense. Without limiting the generality of the
foregoing, except for such Punch List Items (a) Landlord shall have no
responsibility for any design, material or construction defects (patent, latent
or otherwise) in the Improvements, and Tenant shall look solely to the
applicable Warranties with respect to such defects, and (b) Landlord shall have
no responsibility with respect to the performance and/or production capacity of
the Improvements, subject, however to the completion of the commissioning and
acceptance testing described in Section 1.33(ii), above.
3.7 Construction and Material Supplier Warranties. Landlord shall require that
each Construction Contract, as well as each material Subcontract, contain
customary warranties wherein the applicable Contractor warrants to Landlord and
Tenant, for a period of at least one (1) year following Mechanical/Electrical
Completion, that (i) all materials and equipment furnished under such
Construction Contract will be of good quality and new, (ii) the Work covered by
such Construction Contract will be free from defects, and (iii) such Work will
12
be consistent with the Final Plans (collectively, the "Warranties"). Duties and
obligations imposed by the Warranties and rights and remedies available
thereunder shall be in addition to and not in limitation of duties, obligations,
rights and remedies otherwise imposed or available by law or in equity or any
other agreement.
ARTICLE IV
PAYMENT OF PROJECT COSTS
4.1 Landlord's Share of Project Cost. So long as Tenant is not in default of any
of its obligations under this Work Letter or the Lease, Landlord shall pay all
Project Costs, as such costs are incurred and become due and payable; provided
that in no event shall Landlord have any obligation to pay any amounts other
than Landlord's Share of Project Costs, including, without limitation, all or
any portion of any Excess Costs.
4.2 Excess Costs. Tenant shall be solely responsible for all Excess Costs.
Initially, the amount of Excess Costs shall be estimated using the Budgeted
Project Cost established as of Committee Approval and Tenant shall deliver one
hundred percent (100%) of such estimated Excess Costs to Landlord within fifteen
(15) days after settlement under the Purchase Agreement (or under any Alternate
Property Purchase Agreement to the extent applicable) has occurred and Landlord
has obtained fee title to the Property (or an Alternate Property to the extent
applicable). At any time thereafter that Landlord reasonably determines that the
Excess Costs will exceed the previously estimated amount of Excess Costs,
Landlord may, in its sole discretion, condition the commencement or continuation
of Landlord's Work on Tenant's either (1) depositing with Landlord some or all
of the additional estimated amount of Excess Costs, or (2) posting a bond or
giving Landlord other assurances or security satisfactory to Landlord for
Tenant's payment of Excess Costs (including, without limitation, an irrevocable
standby letter of credit in form and substance reasonably satisfactory to
Landlord and issued by a bank that is reasonably satisfactory to Landlord), and
(3) paying Tenant's proportionate share (based on the ratio of the estimated
Excess Costs to total Project Cost) of each monthly or other disbursement of
Project Cost, concurrently with Landlord's payment of Landlord's Share of
Project Cost of such disbursement. If Tenant fails to satisfy any of the
conditions set forth in clauses (1), (2) or (3) above within thirty (30) Days of
Landlord's written demand, without limiting any other rights or remedies
available to Landlord at law or in equity, Landlord shall have the following
rights and remedies:
(a) To introduce any Value Engineering Changes which Landlord determines, in
Landlord's sole and absolute discretion, are necessary to eliminate or reduce
such Excess Costs;
(b) To increase the annual Fixed Rent under the Lease based on a rent factor of
eighteen percent (18%) of the amount of such Excess Costs; and/or
(c) To treat such failure as a default under the Lease and proceed under
Paragraph 18 thereof.
4.3 Payments to Landlord. The following fees shall be paid to Landlord as part
of Project Cost:
13
(a) Development Management Fees: Development Management Fees shall be payable
monthly, on the same date as the regular monthly disbursement of Project Cost,
(A) at the rate of $20,000 per month prior to the first full month after Start
of Construction and (B) thereafter, in an amount equal to 3.00% of the prior
month's Project Cost disbursements, until paid in full. The Development
Management Fees shall not exceed in the aggregate 3.00% of total Project Cost
(excluding the Development Management Fees) at final completion.
(b) Cost Savings Incentive Fee: The Cost Savings Incentive Fee, if applicable,
shall be paid to Landlord on or before the first day of the twelfth (12th) month
of the Term of the Lease.
4.4 Reimbursement of Pre-Development Costs; Alternate Property.
(a) Pre-Development Costs. Tenant acknowledges that the Lease and Landlord's
obligations hereunder are conditioned upon Landlord acquiring fee title to the
Property pursuant to the Purchase Agreement. Tenant further acknowledges that in
order to expedite the build-out of the Premises and the construction of the
Improvements, Landlord has incurred, and may incur additional, Pre-Development
Costs. Accordingly and notwithstanding anything to the contrary contained in
this Work Letter, if for any reason other than due to a default by Landlord
under the Purchase Agreement, Landlord is unable to acquire fee title to the
Property, Landlord shall have the right, in Landlord's sole, subjective
discretion to terminate the Lease, subject, however, to the provisions in
Paragraph 4.4(b), below. In such case (and regardless if Landlord elects to
exercise the Alternate Property Option, Tenant shall reimburse Landlord for all
Pre-Development Costs incurred by Landlord within ten (10) Business Days after
receipt of written notice from Landlord together with documentation reasonably
evidencing such Pre-Development Costs. Tenant's obligations under this Paragraph
4.4 shall survive the termination of the Lease and this Work Letter.
(b) Alternate Property. If Landlord is unable to acquire fee title to the
Property, Landlord shall have the right to exercise the Alternate Property
Option (as defined in the Lease) and purchase the Alternate Property pursuant to
the terms set forth in Article 36 of the Lease. If Landlord exercises the
Alternate Property Option, Landlord and Tenant shall enter into an amendment
modifying the definition of the Premises and such other terms as necessary to
reflect the purchase of the Alternate Property and otherwise reaffirming the
terms and conditions of the Lease and this Work Letter, as amended by such
amendment.
4.5 Contingency and Movable Equipment Escrow. Each of the amounts set forth in
the line items of the Project Budget attached hereto as Schedule 1 and titled
"G.C. Contingency (within GMP)" and "Movable Equipment" shall be placed into
separate escrow accounts held with an escrow company reasonably acceptable to
Landlord and Tenant. All amounts held in the escrow accounts for the G.C.
Contingency line item (the "Contingency Escrow") and the Movable Equipment line
item (the "Movable Equipment Escrow") shall be invested in a Highly Diversified
Money Market Fund or similar yielding investment and all interest accrued
thereon shall be payable to Tenant. As used herein, a "Highly Diversified Money
Market Fund" means a money market fund that is principally invested in corporate
bonds and commercial paper, such as the Evergreen Institutional Money Market
Fund. After completion of all Improvements as contemplated under this Work
Letter and the reasonable determination by Landlord that no further amounts from
either the Contingency Escrow or the Movable Equipment Escrow are necessary to
14
complete the Improvements, all unused amounts remaining in the Contingency
Escrow and/or the Movable Equipment Escrow, together with all interest accrued
thereon, shall be returned to Tenant.
ARTICLE V___
INSURANCE
5.1 Construction Insurance. Throughout the prosecution of Landlord's
Work and of any Deferred Tenant Improvement Work, Landlord, at its expense
and as part of Project Cost, shall carry:
(a) Workers, Compensation Insurance with coverage applicable in the State of
Maryland with limits in accordance with the statutory requirements of the State
of Maryland.
(b) Broad Form Comprehensive General Liability Insurance (including Contractor's
Protective Liability) with a minimum combined aggregate total limit of liability
of Five Million Dollars ($5,000,000.00). The Comprehensive General Liability
Insurance shall provide for explosion, collapse and underground coverage.
(c) Complete Value Builder's Risk Material Damage Insurance Coverage. Landlord
shall provide an "All Physical Loss" Builder's Risk Insurance policy with regard
to construction of the Improvements. The policy shall include as named insureds
Landlord, Tenant, Landlord's Contractors, and Landlord's lender (if any),
agents, engineers, representatives, management agents and contractors, as their
interests may appear. The amount of insurance to be provided shall be 100% of
the replacement cost of the Improvements.
(d) Such other liability and hazard insurance as Landlord shall deem advisable
(including, without limitation, errors and omission insurance, which Landlord
may obtain in the form of so-called "project coverage" insuring any or all of
the design and construction team for Landlord's Work).
All such liability and hazard insurance shall name Tenant as an additional
insured and shall insure against any and all claims for bodily injury, including
death resulting therefrom, and damage to or destruction of property of any kind
whatsoever and to whomsoever belonging, and arising from its operations under
this Work Letter whether such operations are performed by Landlord, a Contractor
or anyone directly or indirectly employed or engaged by any of them. Landlord
shall require the Project Manager, the General Contractor, and any or all of the
Other Contractors and Subcontractors, to carry the coverage described in
Paragraph 5.1(a) and, subject to Landlord's right to waive or reduce the
required amount of coverage if in Landlord's reasonable judgment such waiver or
reduction does not materially increase Tenant's exposure to liability, the
coverage described in Paragraph 5.1(b).
ARTICLE VI
TENANT ACCESS FOR FITTING OUT IMPROVEMENTS
6.1 Access Rights. Landlord shall permit Tenant and its contractors access to
each major facility component at the Premises upon completion thereof and, in
any event, at least forty-five (45) days prior to the anticipated date for
15
Mechanical/Electrical Completion of the Improvements, to perform installation
and other fitting out work not specifically included in the Improvements
pursuant to the Final Plans (such as installation of furniture, fixtures,
equipment, computers and network systems), subject to Landlord's reasonable
prior written approval, subject to all of the terms and conditions of the Lease
(excepting payment of Base Annual Rental), subject to any rules and regulations
promulgated by General Contractor, and otherwise in a manner and upon such
additional terms and conditions and at times reasonably satisfactory to
Landlord. Subject to Landlord's approval, which it shall not unreasonably
withhold, condition or delay, upon Tenant's request Landlord will also permit
Tenant's employees and contractors access to the Premises prior to such
forty-five (45)-day period as may be necessary to coordinate and implement such
installation by Tenant; provided, however, that Landlord may withhold or
condition such approval as Landlord determines, in good faith, is required to
avoid delay, material expense or any material risk to safety of Persons on-site
or damage to property. The foregoing license to enter the Premises prior to the
Commencement Date is conditioned upon Tenant's contractors and their
subcontractors and employees working in harmony and not interfering with
Landlord's Work and compliance by Tenant's contractors with all rules and
requirements imposed by Landlord on third party contractors, including, without
limitation, the maintenance by Tenant and its contractors and subcontractors of
workers' compensation and public liability and property damage insurance in
amounts and with companies and on forms satisfactory to Landlord, with
certificates of such insurance being furnished to Landlord prior to their entry
onto the Premises and all other applicable terms and conditions of the Lease.
Landlord shall have the right to revoke the access rights granted under this
Paragraph 6.1 as to any of Tenant's contractors whose presence causes disharmony
or otherwise interferes with Landlord's Work unless, within 24 hours after
Landlord notifies Tenant's Representative of such problem, it is corrected to
the satisfaction of Landlord.
6.2 Specific Access Rights. Notwithstanding the provisions of Paragraph 6.1,
above (other than the last two sentences of Paragraph 6.1), the following
individuals only shall have the right to access the Premises throughout the
build-out process: Geert R. Kersten, Dr. Eyal Talor, Patty Prichep, Todd
Burkhart, and William Brooke Jones (the "Permitted Parties"). Any access by the
Permitted Parties shall be subject to the provisions of the last two sentences
of Paragraph 6.1 and all of the provisions of Paragraph 6.4, below, and any
interference by the Permitted Parties with the construction of the Improvements
shall constitute a Tenant Delay.
6.3 Early Occupancy of Office. William Brooke Jones, the current Tenant
Representative ("Jones") and Todd Burkhart ("Burkhart") (Jones and Burkhart are
collectively referred to herein as the "Early Occupants"), shall have the sole
right to occupy the existing office space in the Premises (the "Office Space"),
which Office Space is depicted on Schedule 7 attached hereto, provided that such
early occupancy shall be subject to the last two sentences of Paragraph 6.1 and
all of the provisions of Paragraph 6.4. In particular and as a condition to any
entry onto the Premises, the Early Occupants (i.e., Jones or Tenant on behalf of
Jones, and Burkhart separately) shall provide Landlord with evidence of
insurance reasonably acceptable to Landlord. Any interference by the Early
Occupants with the construction of the Improvements shall constitute a Tenant
Delay.
6.4 Tenant's Risk. The access rights granted under Paragraphs 3.4, 6.1 and 6.2
shall be exercised solely at Tenant's risk and expense, and neither Landlord nor
any Contractor shall be liable for any injury, loss or damage which may occur to
work being performed by Tenant's contractors or damage to any equipment,
16
materials or other property of Tenant or such contractors brought onto the
Premises except to the extent such injury, loss or damage is caused by such
Person's own gross negligence or willful misconduct. Tenant shall be responsible
for coordinating the access or activities of Tenant's contractors with Landlord
and any interruption, interference or delay in Landlord's Work resulting from
such access and activities shall be a Tenant Delay. Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all claims, losses,
liabilities or damages arising out of the exercise of Tenant's access rights
under Paragraphs 3.4, 6.1 and 6.2, or early occupancy right under Paragraph 6.3,
including, without limitation, any damages arising out of any Tenant Delays.
ARTICLE VII
MISCELLANEOUS
7.1 Landlord and Tenant Representatives. Each of Landlord's Representative and
Tenant's Representative shall have full authority to act on behalf of their
respective Party with respect to the performance of such Party's obligations and
the exercise of such Party's rights under this Work Letter and each Party shall
be entitled to rely upon any approval, consent or other written communication
given by the other's representative with respect to such performance or
exercise. Either Party may, at any time and from time to time, change its
representative or name one or more alternate representatives (each of whom shall
have such full authority, as if the sole representative of such Party) by giving
the other Party at least five (5) Business Days' prior written notice of such
change (except that such a change may be made effective immediately upon written
notice where required by the death, disability or sudden termination of
employment of the prior representative).
7.2 Notices. All notices, demands, consents, approvals and other written
communications from one Party to the other, with respect to this Work Letter
shall be delivered (and deemed received) as provided in Section 34.10 of the
Lease, except that, where pertaining only to the administration of the design
and construction of Landlord's Work, such communications may be delivered only
by fax (with a telephone call to confirm receipt) to Landlord's Representative
or Tenant's Representative, as applicable, to the following address:
If to Landlord's Representative: Attention: Stan Wendzel
- -------------------------------
VIF II CEL-SCI Partners, LLC
9811 Irvine Center Drive
Irvine, California 92618
Fax: 949-498-2397
Tel: 949-498-2391
email: *
If to Tenant's Representative: Attention: William Brooke Jones
- -----------------------------
c/o Cel-Sci Corporation
4820-C Seton Drive
Baltimore, Maryland 21215
Fax: (410) 358-1647
Tel: (410) 358-6866
email: *
17
or to such other address as the recipient Party representative may have last
designated by written notice to the other Party representative.
7.3 Schedule. The following Schedules are attached to and incorporated into this
Work Letter:
Schedule 1 Project Budget
Schedule 2 Project Schedule
Schedule 3 General Contractor's Estimated Budget
Schedule 4 Conceptual Floor Plan
Schedule 5 Site and Parking Plan
Schedule 6 [Reserved]
Schedule 7 Depiction of 2-Story Office Space
7.4 Counterparts; Execution and Delivery by Fax. This Work Letter may be
executed by each Party on a separate counterpart or counterparts (each of which
shall constitute an original, but all of which taken together shall constitute a
single instrument) and may be delivered by electronic facsimile transmission
(but each Party shall also, subsequent to such facsimile transmission, deliver a
true original executed counterpart to the other).
7.5 Other Miscellaneous Provisions. The provisions of Section 34 of the Lease,
to the extent applicable, are hereby incorporated in this Work Letter.
[SIGNATURES ON FOLLOWING PAGE]
18
IN WITNESS WHEREOF, Landlord and Tenant have caused this Work Letter to be
duly executed under seal as of the day and year first above written.
LANDLORD VIF II CEL-SCI PARTNERS, LLC,
a Delaware limited liability
company
By: /s/ Stan Wendzel
--------------------------
Name: Stan Wendzel
Title: Managing Member
TENANT: CEL-SCI CORPORATION,
a Colorado corporation
By:/s/ Geert R. Kersten
---------------------------
Name: Geert R. Kersten
Title: Chief Executive Officer
19
SCHEDULE 1
Project Budget
*
20
SCHEDULE 2
Project Schedule
*
21
SCHEDULE 3
General Contractor's Estimated Budge
*
22
SCHEDULE 4
Conceptual Floor Plan
*
23
SCHEDULE 5
Site and Parking Plan
*
24
SCHEDULE 6
[Reserved]
*
25
SCHEDULE 7
Depiction of 2-Story Office Space
*
26
FIRST AMENDMENT TO LEASE AGREEMENT
AND WORK LETTER AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT AND WORK LETTER AGREEMENT ("First
Amendment"), is made and dated for reference purposes only as of August 7, 2007,
between VIF II CEL-SCI PARTNERS, LLC, a Delaware limited liability company
("Landlord"), and CEL-SCI CORPORATION, a Colorado corporation ("Tenant"), with
reference to the following facts:
A. Landlord and Tenant entered into that certain Lease Agreement, dated June 6,
2007 ("Lease"), together with that certain Work Letter Agreement dated June 6,
2007 (the "Work Letter"), for premises located at * ("Premises"). Except as
otherwise modified in this First Amendment, defined terms used herein shall have
the same meanings given to them in the Lease.
B. Landlord and Tenant now desire to amend the Lease and Work Letter as set
forth in this First Amendment.
THEREFORE, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Landlord and Tenant hereby agree to amend the Lease as
follows:
1. Modifications to Lease.
a. Notices. The following part of Section 38.10 to the Lease is deleted:
" with a copy to: VIF II CEL-SCI Partners, LLC
c/o AEW Capital Management
Attn: Asset Manager
World Trade Center East
Two Seaport Lane
Boston, Massachusetts 02210-2021
Phone (617) 261-9000; Fax: (617) 261-9555"
b. Landlord's Insurance. In addition to the insurance to be carried by Landlord
under Section 10.1 of the Lease, Landlord shall also maintain, as a requirement
of Landlord's lender and at Tenant's sole expense, the insurance described in
Schedule 2 attached hereto. In the event of any conflict between the provisions
set forth in Section 10.1 of the Lease and Schedule 2 attached hereto, the
provisions and requirements of Schedule 2 shall control.
c. Tenant's Insurance. The following provisions of Lease Rider No. 1 attached to
the Lease are hereby modified as follows:
(i) Rating. Notwithstanding the provisions of Section I(a) of
Lease Rider No. 1, Tenant shall maintain the insurance required
under the Lease and Lease Rider No. 1 with insurers having a minimum
A.M. Best rating of A-X.
1
(ii) Employer Liability. Section I(a)(iii) of Lease Rider No.1
is hereby deleted and replaced in its entirety with the following:
"(iii) Workers' Compensation Insurance with statutory
benefits and Employers' Liability Insurance with the following
amounts: Each Accident: $1,000,000; Disease-Policy Limit:
$1,000,000; Disease - Each Employee: $1,000,000."
(iii) Automobile Liability. The following paragraph is hereby
added as Section I(a)(iv) of Lease Rider No. 1:
"(iv) Commercial Automobile Liability Insurance,
including the ownership, maintenance and operation of any
automotive equipment owned, hired and non-owned in the
following minimum amounts: Bodily Injury and Property Damage,
each occurrence, combined single limit of One Million Dollars
($1,000,000)."
(iv) Contractor's and Subcontractor's Insurance - Employer's
Liability. Section III(a) of Lease Rider No. 1 is hereby deleted and
replaced in its entirety with the following:
"(b) Employer's Liability Insurance with the following
amounts: Each Accident: $1,000,000; Disease-Policy Limit:
$1,000,000; Disease - Each Employee: $1,000,000"
(v) Contractor's and Subcontractor's Insurance - Rating.
Notwithstanding the provisions of Section III of Lease Rider No. 1,
all contractors and subcontractors performing work on behalf of
Tenant shall maintain the insurance required under the Lease and
Lease Rider No. 1 with insurers having a minimum A.M. Best rating of
A-X.
2. Modifications to Work Letter.
a. Preliminary Plans. The second sentence of Section 2.1(a) of the Work Letter
is hereby deleted and replaced in its entirety with the following:
"As soon as reasonably practicable and, in any event, no later
than thirty (30) days after signing the design build contract with
Contractor, Landlord shall have the Preliminary Plans prepared and
submitted to Tenant for approval pursuant to the procedure set forth
below in this Section 2.1, which together with the Project Budget,
Project Schedule and General Contractor's Estimated Budget,
collectively constitute the "Baseline Documents".
2
b. Project Budget. Schedule 1 of the Work Letter is hereby deleted
and replaced in its entirety with Schedule 1 attached hereto and
incorporated herein by reference.
c. Roof Work. As part of the Improvements to be constructed at the
Premises pursuant to the Work Letter, Landlord and Tenant confirm that a
new roof or roof overlay shall be installed on the Building (the "New
Roof"). The New Roof shall be installed based on the following
specifications:
(i) a minimum 15-year, written, non-prorated warranty will be
obtained from a major roof membrane manufacturer (e.g., Firestone,
Carlisle), which warranty shall be transferable to subsequent owners of
the Building;
(ii) the New Roof will include one (1) layer of 1/4 inch thick
densdeck mechanically fastened through the existing, built up roof system
and into the metal deck; and
(iii) the New Roof will include 0.060 inch thick EPDM, TPO or
PVC single-ply membrane specified at minimum 10 foot widths installed in
accordance with manufacturer's and FM Global specifications.
Contractor (as defined in the Work Letter) has obtained one or more
bids relating to the New Roof and such amount has been included in the
revised Schedule 1 attached hereto.
3. Environmental Indemnity. Tenant confirms that Landlord is currently in the
process of obtaining financing for the purchase and redevelopment of the
Premises from Nett Funding, LLC, a Delaware limited liability company
("Lender"). In connection with such financing, Lender has required that * and *
enter into an Environmental Indemnity Agreement, a copy of which is attached
hereto as Schedule 3 (the "Environmental Indemnity"). Notwithstanding anything
to the contrary contained in the Lease or Work Letter and except to the extent
caused by the gross negligence or willful misconduct of Landlord, *, Tenant
hereby agrees to be solely responsible for, and shall otherwise indemnify,
defend and hold * harmless from and against, any and all claims, liabilities,
Losses (as that term is defined in the Environmental Indemnity) and the costs of
any Remediation (as that term is defined in the Environmental Indemnity) that
may arise under the Environmental Indemnity for which * may be liable. In
connection therewith, Tenant further agrees to be responsible for all costs
relating to any inspections, testing, or appraisals that Lender may require or
otherwise undertake at the Premises pursuant to its rights under the
Environmental Indemnity. Tenant shall pay such costs within twenty (20) days
after receipt of written demand and copies of invoices evidencing such costs.
4. Broker Representation. Landlord and Tenant represent to one another that
neither party has dealt with any broker nor is any other fee or commission
payable in connection with this First Amendment. Landlord and Tenant shall
indemnify, defend and hold one another harmless from and against any and all
claims, losses and liabilities arising out of, or relating to, a breach by the
indemnifying party of such representation.
3
5. No Other Amendments. The Lease referred to hereinabove and this First
Amendment constitute the entire agreement by and between Landlord and Tenant and
supercede any other agreement or representation, written or oral, that either
party may hereinafter assert or allege exist, and the Lease, as hereby modified,
remains in full force, except as amended by this First Amendment, and is hereby
ratified and reaffirmed as amended by this First Amendment. From and after the
date hereof, all references to the "Lease" shall refer to the Lease as amended
by this First Amendment.
6. Conflicts. If any conflict between this First Amendment and the Lease should
arise, the terms of this First Amendment shall control.
7. Successor and Assigns. This First Amendment shall be binding upon and inure
to the benefit of the successors and assigns of the respective parties hereto.
8. Counterparts. This First Amendment may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which shall together
constitute a single instrument.
[SIGNATURES ON FOLLOWING PAGE]
4
The parties have executed this First Amendment as of the date first
written above.
LANDLORD: TENANT:
VIF II CEL-SCI Partners, LLC, CEL-SCI CORPORATION,
a Delaware limited liability company a Colorado corporation
By: /s/ Stan Wendzel By: /s/ Geert R. Kersten
--------------------------------- -------------------------------
Name: Stan Wendzel Name: Geert R. Kersten
--------------------------------- -------------------------------
Title: Manager Title: Chief Executive Officer
--------------------------------- -------------------------------
5
SCHEDULE 1
Project Budget
[SEE ATTACHED]
*
6
SCHEDULE 2
Additional Landlord Insurance Requirements
I. General Requirements (all policies)
A. Company Rating/Qualification. The insurance company or companies issuing the
policies described below each must be a U.S. domestic insurance standard stock
company or non-participating mutual company which is a primary insurer and has
(i) an investment grade rating or claims paying ability assigned by one or more
credit rating agencies approved by Nett Funding, LLC, a Delaware limited
liability company ("Lender"), and (ii) a general policy rating of A or better
and a financial class of X or better by A.M. Best Company, Inc. (or if a rating
of A.M. Best Company Inc. is no longer available, a similar rating from a
similar or successor service). Foreign insurance companies with a U.S. branch
are not acceptable unless approved in writing by Lender's insurance department.
All insurers must be licensed, registered and in good standing in the state or
states where the property or properties are located.
B. Additional Insured, Mortgagee Endorsements, etc. Each of the insurance
policies must name Lender as an additional named insured. Each of the insurance
policies must also contain: (i) with respect to those policies referred to in
paragraph II below, a primary standard "non-contributory mortgagee" endorsement
or its equivalent relating, inter alia, to recovery by Lender notwithstanding
the negligent or willful acts or omission of Lender; (ii) with respect to those
policies referred to in paragraphs II and III below, a waiver of subrogation
endorsement as to Lender; (iii) with respect to those policies referred to in
paragraphs II and III below, an endorsement providing for a deductible per loss
of an amount not more than that which is customarily maintained by prudent
owners of similar properties in the general vicinity of the subject property,
but in no event in excess of $10,000, and (iv) with respect to those policies
referred to in paragraph II below, coverage shall be provided on an agreed
amount basis with no coinsurance clause. The insurance policy referred to in
paragraph II.A. below must provide coverage for contingent liability from
Operation of Building Laws, Demolition Costs and Increased Cost of Construction.
C. Borrower's/Property Owner's Failure to Maintain Insurance. If VIF II CEL-SCI
Partners, LLC, a Delaware limited liability company ("Borrower/Property Owner")
fails to maintain such insurance or fails to deliver to Lender the certificates
of insurance required by Lender as set forth herein, upon twenty-four (24)
hours' prior notice to Borrowers/Property Owner, Lender may procure such
insurance at Borrowers'/Property Owner's sole cost and expense.
D. Certificates of Renewals, etc. Except in the case of Workmen's Compensation
or Flood insurance, certificates of insurance issued by state or federal
agencies for the required coverage shall not be acceptable for purposes hereof.
Certificates evidencing renewal and replacement insurance policies shall be
delivered to Lender not less than five (5) days after the expiration date of the
applicable insurance policy or policies required to be maintained hereunder.
7
E. Notice of Cancellation. All insurance policies shall contain (i) a provision
that such policies shall not be cancelled (whether for non-payment or otherwise)
or terminated, nor shall they expire, without at least thirty (30) days' prior
written notice to Lender in each instance.
II. Property Insurance Requirements
A. All Risk Property Coverage. Borrower/Property Owner shall maintain property
insurance with respect to the improvements and building equipment insuring
against any peril now or hereafter included within the classification "All Risks
of Physical Loss", including, without limitation, losses from fire, lightning,
debris removal, windstorm, hail, explosion, smoke; aircraft and vehicle damage,
terrorism, riot, vandalism and malicious mischief, falling objects, weight of
snow, ice or sleet; collapse, water damage and sprinkler leakage. In any event
such insurance shall be maintained in an amount which, after application of
deductible, shall be equal to the full insurable value of the improvements and
building equipment, but in no event less than the coverage required pursuant to
the terms of any lease affecting the subject property. The term "full insurable
value" shall mean the actual replacement cost of the improvements and building
equipment (without taking into account any depreciation, and exclusive of
excavations, footings and foundations, landscaping and paving) determined
annually and approved by Lender.
B. Boiler Coverage. Borrower/Property Owner shall maintain broad form boiler and
machinery insurance (without exclusion for explosion) covering all boilers or
other pressure vessels, machinery, equipment and air conditioning or heating
units located in, on or about the subject property and insurance against loss of
occupancy or use arising from any breakdown in such amounts as are generally
required by institutional lenders for properties comparable to the subject
property.
C. Rent Loss/Business Interruption. Borrower/Property Owner shall maintain
business interruption and/or loss of "rental income" insurance in an amount
sufficient to provide proceeds which will cover a period of not less than twelve
(12) months from the date of casualty or loss, the term "rental income" to mean
the sum of (A) the total ascertainable rents then payable under the leases
affecting the subject property and (B) the total ascertainable amount of all
other amounts to be received by Borrower/Property Owner from third parties which
are the legal obligation of the tenants, reduced to the extent such amounts
would not be received because of operating expenses not incurred during a period
of non-occupancy of that portion of the subject property then not being
occupied.
D. Special Coverages. Borrower/Property Owner shall maintain special coverages
such as Flood, Earthquake, Earth Movement, etc., if the subject property is
located in an area prone to these perils.
8
1. Flood Insurance. Flood coverage is required; Borrower/Property Owner to
approve level of coverage and deductible.
2. Earthquake Insurance. Earthquake coverage shall be in broad form and
acceptable to Lender; provided, however, that such coverage shall at minimum
cover the probable maximum loss based on a five hundred year period. California
Quake shall have a deductible of not over five percent (5%) and follow the form
of the property policy including Lender enhancements, and in all other states,
the quake deductible will be 2% or less or as approved by Lender.
3. Windstorm Insurance. With respect to property located in a Tier I zone,
Borrower/Property Owner shall maintain windstorm coverage with a deductible not
to exceed 5% and at full replacement cost.
E. Intentionally Omitted.
III. Liability Insurance Requirements
A. General Liability Insurance. Borrower/Property Owner shall maintain
comprehensive general liability insurance, including bodily injury, death and
property damage liability, insurance against any and all claims, including all
legal liability to the extent insurable and imposed upon Lender and all court
costs and attorneys' fees and expenses, arising out of or connected with the
possession, use, leasing, operation, maintenance or condition of the subject
property in such amounts as are generally available at commercially reasonable
premiums and are generally required by institutional lenders for properties
comparable to the subject property but in any event for a combined single limit
of at least $10,000,000. At least $1,000,000 of such liability coverage shall be
primary, and the balance may be maintained as excess or umbrella coverage. Such
liability insurance must be occurrence based coverage, rather than claims made
coverage. This insurance must stand on its own with no participation or
proration. In the event that the Lender's loan agreement requires a higher
limit, the higher limit shall prevail.
B. Intentionally Omitted.
C. Liquor Liability/Dram Shop. If liquor is sold or served at the Property,
Borrower/Property Owner shall maintain dram shop, host liquor liability or
liquor liability coverage of at least $10,000,000 single and aggregate.
C. Motor Vehicles. Borrower/Property Owner shall maintain auto liability
insurance. The combination of the primary auto liability and excess liability or
umbrella must equal $10,000,000.
D. Worker's Compensation Insurance. Borrower/Property Owner shall maintain
workers' compensation insurance with respect to any work on or about the subject
property.
9
IV. Additional Coverages
Borrower/Property Owner shall maintain such other insurance with respect
to Borrower/Property Owner and the subject property against loss or damage of
the kinds from time to time required by Lender to the extent such additional
insurance is for perils and in amounts customarily required by institutional
lenders for properties comparable to the subject property and to the extent such
other insurance is available at commercially reasonable rates.
10
1
{10124806.1}
SCHEDULE 3
Environmental Indemnity Agreement
[See Attached]
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the "Agreement") is made as of
August __, 2007 by VIF II CEL-SCI PARTNERS, LLC, a Delaware limited liability
company ("Property Owner"), STANLEY WENDZEL, an individual ("Guarantor";
together with Property Owner, "Indemnitor" or "Indemnitors", as applicable), in
favor of NETT FUNDING, LLC, a Delaware limited liability company ("Lender"), and
the other Indemnified Parties (defined below).
RECITALS
A. SAN TOMAS PARTNERS, LLC, a Delaware limited liability company (the
"Borrower") owns, or will own on the Closing Date, the fee interest in certain
real property located in the County of *, State of Maryland, and more
particularly described in Exhibit A attached hereto (said real property being
referred to as the "Land"; the Land, together with all structures, buildings and
improvements now or hereafter located on the Land, being collectively referred
to as the "Property").
B. Lender is making a loan (the "Loan") to Borrower in connection with the
financing of the Property by Property Owner, pursuant to that certain Mezzanine
Loan Agreement ("Loan Agreement"), dated of even date herewith, and which is
evidenced by, among other things, one or more promissory notes of even date
herewith (collectively, the "Note"). Borrower's obligations under the Loan will
be guaranteed by Property Owner pursuant to an indemnity guaranty, dated of even
date herewith (the "Indemnity Guaranty"). The Loan and the Indemnity Guaranty
will be secured by, among other things (i) the Pledge Agreement (as defined in
the Loan Agreement) and (ii) the Indemnity Deed of Trust (as defined in the Loan
Agreement). The Loan Agreement, the Note, the Pledge Agreement, the Indemnity
Guaranty, the Indemnity Deed of Trust, this Agreement and the other documents
evidencing, or securing the Loan, or entered into in connection therewith and
any modifications, renewals and extensions thereof are sometimes referred to
herein collectively as the "Loan Documents".
C. Guarantor has an indirect ownership interest in Borrower, and as a result
will receive benefits from Lender's making the Loan to Borrower.
D. Lender is unwilling to make the Loan unless Indemnitor agrees to provide the
indemnification, representations, warranties, and covenants and other matters
described in this Agreement for the benefit of Indemnified Parties.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Indemnitors jointly and severally hereby agrees and covenants
as follows:
Article 1
Definitions
1.1 Unassigned Definitions: Capitalized terms used herein and not
specifically defined herein shall have the respective meanings ascribed to
such terms in the Loan Agreement.
1.2 Definitions: As used in this Agreement, the following terms shall have
the following meanings:
1.2.1 The term "Environmental Law" means any present and future federal,
state and local laws, statutes, ordinances, rules, regulations, standards, and
other governmental directives or requirements, as well as common law, relating
to protection of human health or the environment, relating to Hazardous
Materials that apply to Borrower, Property Owner, or the Property and relate to
Hazardous Materials.
1.2.2 The term "Hazardous Materials" shall mean petroleum and petroleum
products and compounds containing them, including gasoline, diesel fuel and oil;
explosives, flammable materials; radioactive materials; polychlorinated
biphenyls ("PCBs") and compounds containing them; lead and Lead Based Paint (as
defined below); asbestos or asbestos-containing materials in any form that is or
could become friable; underground or above-ground storage tanks, whether empty
or containing any substance; any pathogen and airborne pathogen (naturally
occurring or otherwise), toxin or other biological agent or condition,
including, but not limited to, any fungus, mold, mycotoxins and microbial matter
("Pathogens"); any substance the presence of which on the Property is prohibited
by any federal, state or local authority (excepting, however, materials used in
the ordinary course of construction, use or management of a life science R&D
manufacturing facility in accordance with all applicable Environmental Law); and
any other material or substance now or in the future defined as a "hazardous
substance," "hazardous material", hazardous waste", toxic substance", "toxic
pollutant", "contaminant", or pollutant" within the meaning of any Environmental
Law. In addition, Lender acknowledges that the Tenant under the Cel-Sci Lease
may use certain radioactive materials and/or biohazardous materials in
connection with the operation of its business from the Property. Lender consents
to the use of such radioactive materials and/or biohazardous materials so long
as Cel-Sci uses such materials in accordance with all required licenses and
otherwise in accordance with applicable Environmental Law and confirms that the
use of such materials by Cel-Sci shall not constitute a breach under this
Agreement so long as such materials are used in accordance with applicable
Environmental Law.
1.2.3 The term "Indemnified Parties" means Lender, any person or entity who
is or will have been involved in the origination of the Loan, any person or
entity who is or will have been involved in the servicing of the Loan, persons
and entities who may hold or acquire or will have held a full or partial
interest in the Loan, as well as custodians, trustees and other fiduciaries who
hold or have held a full or partial interest in the Loan for the benefit of
third parties) as well as the respective directors, officers, shareholders,
partners, members, employees, agents, servants, representatives, contractors,
subcontractors, affiliates, subsidiaries, participants, successors and assigns
of any and all of the foregoing (including but not limited to any other person
or entity who holds or acquires or will have held a participation or other full
or partial interest in the Loan, the collateral for the Loan or the Property,
2
whether during the term of the Loan or as a part of or following a foreclosure
of the Loan and including, but not limited to, any successors by merger,
consolidation or acquisition of all or a substantial portion of Lender's assets
and business).
1.2.4 The term "Legal Action" means any claim, suit or proceeding, whether
administrative or judicial in nature.
1.2.5 The term "Losses" includes any and all losses, damages (excluding,
however, consequential damages), costs, fees, expenses, claims, suits,
judgments, awards, liabilities (including, without limitation, strict
liabilities), obligations, debts, fines, penalties, charges, costs of
Remediation (whether or not performed voluntarily), amounts paid in settlement,
litigation costs, attorneys' fees, engineers' fees, reasonable environmental
consultants' fees, and investigation costs (including, without limitation, costs
for sampling, testing and analysis of soil, water, air, building materials, and
other materials and substances whether solid, liquid or gas), of whatever kind
or nature, and whether or not incurred in connection with any judicial or
administrative proceedings, actions, claim, suits, judgments or awards.
1.2.6 The term "Release" with respect to any Hazardous Materials means any
release, deposit, discharge, emission, leaking, leaching, spilling, seeping,
migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing
or other movement of Hazardous Materials.
1.2.7 The term "Remediation" includes, but is not limited to, any response,
remedial removal, or corrective action, any activity to cleanup, abate,
detoxify, decontaminate, contain or otherwise remediate any Hazardous Material
which in its then-present state and concentration would be required to be
remediated pursuant to any applicable Environmental Law.
1.2.8 The term "Threatened" or "Threat" means that there is a substantial
likelihood of a Release which requires action to prevent or otherwise mitigate
damage to the environment that may result from such Release.
Article 2
Indemnification
2.1 Indemnification. Borrower and Guarantor covenant and agree at their sole
cost and expense, to protect, defend, indemnify, release and hold Indemnified
Parties harmless from and against any and all Losses and costs of Remediation
(whether or not performed voluntarily) imposed upon or incurred by or asserted
against any Indemnified Parties and directly or indirectly arising out of or in
any way relating to any one or more of the following:
(a) any presence of any Hazardous Materials in, on, above, or under the
Property;
3
(b) any past, present or threatened Release of Hazardous Materials in, on,
above, under or from the Property;
(c) any activity by Property Owner, Borrower, any person or entity affiliated
with Borrower, and any tenant or other user of the Property in connection
with any actual, proposed or threatened use, treatment, storage, holding,
existence, disposition or other Release, generation, production,
manufacturing, processing, refining, control, management, abatement,
removal, handling, transfer or transportation to or from the Property of
any Hazardous Materials at any time located in, under, on or above the
Property or any actual or proposed remediation of any Hazardous Materials
at any time located in, under, on or above the Property, whether or not
such remediation is voluntary or pursuant to court or administrative order,
including but not limited to any removal, remedial or corrective action;
(d) any past or present non-compliance or violations of any Environmental Laws
(or permits issued pursuant to any Environmental Law) in connection with
the Property or operations thereon, including but not limited to any
failure by Property Owner, Borrower or any person or entity affiliated with
Borrower and any tenant or other user of the Property to comply with any
order of any governmental authority in connection with any Environmental
Laws;
(e) the imposition, recording or filing of any environmental lien encumbering
the Property;
(f) any acts of Property Owner, Borrower, any person or entity affiliated with
Borrower, and any tenant or other user of the Property in (i) arranging for
disposal or treatment, or arranging with a transporter for transport for
disposal or treatment, of Hazardous Materials from the Property at any
facility or incineration vessel containing such or similar Hazardous
Materials or (ii) accepting any Hazardous Materials from the Property for
transport to disposal or treatment facilities, incineration vessels or
sites from which there is a Release, or a threatened Release of any
Hazardous Material which causes the incurrence of costs for remediation;
(g) any misrepresentation or inaccuracy in any representation or warranty or
material breach or failure to perform any covenants or other obligations
pursuant to this Agreement or the Loan Agreement relating to environmental
matters;
(h) the failure by any Indemnitor to comply fully with the terms and conditions
of this Agreement;
(i) the enforcement of this Agreement;
4
(j) any environmental investigation, assessment, audit or review conducted in
connection with the Property or the operations conducted at any time
thereon pursuant to Lender's rights under this Agreement or any of the Loan
Documents, including, without limitation, the cost of assessment,
investigation, containment, removal and/or Remediation of any and all
Hazardous Materials from all or any portion of the Property, the cost of
any actions taken in response to the presence, release or threat of release
of any Hazardous Materials on, in under or affecting any portion of the
Property to prevent or minimize such release or threat of release so that
it does not migrate or otherwise cause or threaten danger to present or
future public health, safety, welfare or the environment, and cost incurred
to comply with Environmental Laws in connection with all or any portion of
the Property;
(k) any administrative processes or proceedings or judicial proceedings in any
way connected with any matter addressed in this Agreement;
(l) any past, present or threatened injury to, destruction of or loss of
natural resources in any way connected with the Property, including,
without limitation, costs to investigate and assess such injury,
destruction or loss; or
(m) any personal injury, wrongful death, or property or other damage arising
under any statutory or common law or tort law theory, including, without
limitation, damages assessed for a private or public nuisance or for the
conducting of an abnormally dangerous activity on, at or under the Property
in connection with Hazardous Materials.
Except if attributable to the acts or omissions of Property Owner or Borrower,
the foregoing indemnity shall not apply to, and Indemnitors shall have no
responsibility hereunder in connection with, any Hazardous Materials (including
any costs relating thereto, including, without limitation, any Losses or costs f
Remediation) which are initially placed on, in or under the Property after a UCC
sale, foreclosure (or transfer-in-lieu of foreclosure), judicial or non-judicial
sale or other taking of title to the shares in Property Owner or to the Property
by Lender or its successor or assigns, or with respect to any acts of gross
negligence or misconduct by the Lender or its successors or assigns resulting in
the release or placement of Hazardous Materials on or under the Property.
2.2 Subrogation. Each Indemnitor shall, or shall cause Property Owner to, take
any and all reasonable actions, including institution of legal action against
third-parties, necessary or appropriate to obtain reimbursement, payment or
compensation from such persons responsible for the presence of any Hazardous
Materials at, in, on, under or near the Property or otherwise obligated by law
to bear the cost. Indemnified Parties shall be and hereby are subrogated to all
of each Indemnitor's rights now or hereafter in such claims.
5
Article 3
Representations and Warranties and Covenants
3.1 General Representations and Warranties. Each Indemnitor represents and
warrants as follows:
3.1.1 Each Indemnitor that is a corporation, partnership or limited
liability company represents and warrants that (i) it has the full power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder; the execution, delivery and performance of this Agreement by such
Indemnitor has been duly and validly authorized by all requisite organizational
action and (ii) this Agreement is in the ordinary course of business of each
Indemnitor and will not result in the breach of any term or provision of the
charter, by-laws, partnership or trust agreement, articles of organization,
operating agreement or other governing instrument of such Indemnitor;
3.1.2 Compliance with this Agreement will not result in the breach of any
term or provision of, or conflict with or constitute a default under or result
in the acceleration of any obligation under any agreement, indenture or loan or
credit agreement or other instrument to which each Indemnitor or the Property is
subject, or, to the best of such Indemnitor's knowledge, result in the violation
of any law, rule, regulation, order, judgment or decree to which such Indemnitor
or the Property is subject; other than, in each case such conflicts, defaults or
violations that would not result in a material adverse change in the business,
operations, financial condition, properties or assets of such Indemnitor, or in
any material impairment of the right or ability of such Indemnitor to carry on
its business substantially as now conducted, or in any material liability on the
part of such Indemnitor, or draw into question the validity of this Agreement or
of any action taken or to be taken in connection with the obligations of such
Indemnitor contemplated herein, or be likely to impair materially the ability of
such Indemnitor to perform under the terms of this Agreement;
3.1.3 There is no action, suit, proceeding or investigation pending or, to
the best of such Indemnitor's knowledge, threatened against it which, either in
any one instance or in the aggregate, may result in any material adverse change
in the business, operations, financial condition, properties or assets of
Property Owner or any Indemnitor, or in any material impairment of the right or
ability of Property Owner or any Indemnitor to carry on its business
substantially as now conducted, or in any material liability on the part of
Property Owner or any Indemnitor, or which would draw into question the validity
of this Agreement or of any action taken or to be taken in connection with the
obligations of each Indemnitor contemplated herein, or which would be likely to
impair materially the ability of any Indemnitor to perform under the terms of
this Agreement;
3.1.4 No approval, authorization, order, license or consent of, or
registration or filing with, any governmental authority or other person, and no
approval, authorization or consent of any other party is required in connection
with this Agreement; and
3.1.5 This Agreement constitutes a valid, legal and binding obligation of
each Indemnitor, enforceable against it in accordance with the terms hereof
6
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating or affecting creditors' rights and to
general equity principals.
3.2 Environmental Representations and Warranties. Each Indemnitor represents and
warrants, based upon their review of the written report(s) resulting from the
environmental assessment (s) of the Property previously delivered to Lender
(collectively, the "Environmental Reports") and information that any Indemnitor
has actual knowledge of, that:
3.2.1 There are no Hazardous Materials or underground storage tanks in, on,
or under the Property, except those that are both (i) in compliance with
Environmental Laws and, if required, with permits issued pursuant thereto and
(ii) either fully disclosed to Lender in the Environmental Reports or are used
by Borrower or tenants of the Property in the ordinary course of their business,
provided that as disclosed in the Environmental Reports, Lender acknowledges
that (i) underground storage tanks have been previously removed from the
Property and (ii) an above-ground storage tank exists on the Property (which is
scheduled to be removed prior to the occupancy of the Tenant under the Cel-Sci
Lease;
3.2.2 There are no past, present or threatened Releases of Hazardous
Materials in, on, under or from the Property except as described in the
Environmental Reports;
3.2.3 There is no threat of any Release of Hazardous Materials migrating to
the Property except as described in the Environmental Reports;
3.2.4 There are no past or present non-compliance with Environmental Laws,
or with permits issued pursuant thereto, in connection with the Property except
as described in the Environmental Reports;
3.2.5 No Indemnitor knows of, or has received, any written notice from any
Person (including, without limitation, a governmental entity) in connection with
the Property relating to Hazardous Materials or Remediation thereof, or any
actual or threatened administrative or judicial proceedings in connection with
any of the foregoing; and
3.2.6 Each Indemnitor has truthfully and fully provided to Lender, in
writing, any and all information relating to conditions in, on, under or from
the Property that is known to any Indemnitor and that is contained in the files
and records of any Indemnitor, including, without limitation, any reports
relating to Hazardous Materials in, on, under or from the Property and/or to the
environmental condition of the Property.
3.3 Environmental Covenants. Each Indemnitor covenants and agrees as follows:
3.3.1 All uses and operations on or of the Property, whether by Borrower or
any other Person, shall be in compliance in all material respects with all
Environmental Laws and permits issued pursuant thereto;
3.3.2 There shall be no Releases of Hazardous Materials in, on, under or
from the Property, other than in compliance with applicable Environmental Laws;
7
3.3.3 There shall be no Hazardous Materials in, on, or under the Property
except those that are both (i) in compliance with all Environmental Laws and, if
required, with permits issued pursuant thereto, and (ii) fully disclosed to
Lender in writing or are used by Borrower or tenants of the Property in the
ordinary course of their business;
3.3.4 Each Indemnitor shall keep, or cause to be kept, the Property free
and clear of all liens and other encumbrances imposed pursuant to any
Environmental Law, whether due to any act or omission of any Indemnitor or any
other Person (the "Environmental Liens");
3.3.5 Subject to Section 4, each Indemnitor shall, at their sole cost and
expense, perform an environmental site assessment or other investigation of
environmental conditions in connection with the Property as reasonably
determined by Indemnitor, pursuant to any reasonable written request of Lender
if Lender has reason to suspect that (i) a Release of a Hazardous Material has
occurred in violation of Environmental Laws (including, without limitation,
sampling, testing and analysis of soil, water, air, building materials and other
materials and substances whether solid, liquid or gas) or (ii) such
investigation or assessment is required by any applicable law or governmental
authority in connection with any demolition and or construction activity at the
Property. Indemnitors agree to share with Lender the reports and other results
thereof, and Lender and other Indemnified Parties shall be entitled to rely on
such reports and other results thereof;
3.3.6 Each Indemnitor shall, at their sole cost and expense, comply or
cause Borrower to comply with all reasonable written requests of Lender to (i)
reasonably effectuate Remediation of any condition (including, without
limitation, a Release of a Hazardous Material) in, on, under or from the
Property; (ii) comply with any Environmental Law with respect to the Property;
(iii) comply with any directive from any governmental authority with respect to
the Property; and (iv) take any other reasonable action with respect to the
Property necessary or appropriate for protection of human health or the
environment;
3.3.7 Each Indemnitor, promptly upon becoming aware of the same shall
notify Lender in writing of (i) any presence or Release or threatened Release of
Hazardous Materials in, on, under, from or migrating towards the Property, in
violation of applicable Environmental Laws; (ii) any non-compliance in any
material respect with any applicable Environmental Laws related in any way to
the Property; (iii) any actual or potential Environmental Lien; (iv) any
required or proposed Remediation of environmental conditions relating to the
Property; (v) any Legal Action brought against such party or related to the
Property, with respect to which Indemnitors may have liability under this
Agreement; and (vi) any written notice of which any Indemnitor receives relating
to any violation of any applicable Environmental Law with respect to the
Property, other environmental conditions in connection with the Property that
are in violation of applicable Environmental Law, or any actual or threatened
administrative or judicial proceedings relating to any environmental condition
of the Property.
3.3.8 If, at any time hereafter, Lender reasonably suspects any lead-based
paint in its present state and concentration on the Property is in an amount
and/or state in excess of the concentration permitted under applicable
Environmental Laws ("Lead Based Paint"), Indemnitors agree, at their sole cost
and expense and within thirty (30) days thereafter, to cause to be prepared an
assessment report describing the location and condition of the Lead Based Paint
8
(a "Lead Based Paint Report"), prepared by an expert, and in form and scope
acceptable to Lender. If at any time hereafter, Lender reasonably (i) suspects
that the Property contains any asbestos or asbestos containing materials
("Asbestos") in its present state and concentration as would be in violation of
any applicable Environmental Laws or (ii) determines, that pursuant to any
proposed demolition or construction of any improvements at the Property, that
any governmental entity would require an assessment report describing the
location and condition of the Asbestos (the "Asbestos Report"), Indemnitors
agree, at their sole cost and expense and within thirty (30) days thereafter, to
cause to be prepared the Asbestos Report, prepared by an expert, and in form and
scope acceptable to Lender. If at any time hereafter, Lender has reason to
believe that Pathogens in their present state and concentration would be in
violation of applicable Environmental Laws are present on the Property,
Indemnitors agree, at their sole cost and expense, and within thirty (30) days
thereafter, to cause to be prepared an assessment report describing the location
and condition of the Pathogens ("Pathogens Report"), prepared by an expert, and
in form and scope acceptable to Lender.
3.3.9 Each Indemnitor agrees that if it has been, or if at any time
hereafter it is, determined that the Property contains Lead Based
Paint/Asbestos/Pathogens, in their present state and concentration, would be in
violation of any applicable Environmental Laws as noted in 3.3.8, on or before
thirty (30) days following (i) the date hereof, if such determination was made
prior to the date hereof or (ii) such determination, if such determination is
hereafter made, as applicable, Indemnitors shall, at their sole cost and
expense, develop and implement, and thereafter diligently and continuously carry
out (or cause to be developed, implemented and thereafter diligently carried
out), an operations, abatement and maintenance plan for the Lead Based
Paint/Asbestos/Pathogens on the Property, which plan shall be prepared by an
expert, and be in form, scope and substance reasonably acceptable to Lender (the
"O&M Plan"). Indemnitors agree to diligently and continuously carry out (or
cause to be carried out) the provisions thereof. Compliance with the O&M Plan
shall require or be deemed to require, without limitation, the proper
preparation and maintenance all records, papers, and forms required under the
Environmental Laws.
Article 4
Inspection and Testing
Lender may require Borrower (or Borrower shall cause Property Owner to do so, as
appropriate), at its sole cost and expense, from time to time to perform or
cause to be performed, such studies or assessments of the Property, as Lender
may reasonably deem necessary, appropriate or desirable, to determine the status
of environmental conditions on, under and about the Property, which studies and
assessments shall be for the benefit of Lender and shall be prepared in
accordance with the specifications established by Lender. Borrower hereby
confirms the right of Lender (or a receiver appointed by Lender) to enter upon
and inspect all or any portion of the Property for the purpose of determining
the existence, location, nature and magnitude of any past or present release or
threatened release of any hazardous substance into, onto, beneath, or from the
Property in accordance with applicable law. All reasonable costs and expenses
incurred by Lender pursuant to this provision or applicable law, including,
without limitation, costs of consultants and contractors, costs of repair of any
physical injury to the Property normal and customary to the tests and studies,
court costs and attorneys' fees, costs and expenses, whether incurred in
9
litigation or not and whether before or after judgment, shall be payable by
Borrower and, to the extent advanced or incurred by Lender, shall be reimbursed
to Lender by Borrower upon demand. This provision is separate and several, and
shall survive merger into any judgment. Notwithstanding the foregoing, Borrower
shall not be responsible for the cost and expense of any environmental study or
assessment unless one of the following has occurred: (1) an Event of Default,
(2) if required by a federal, state or local regulatory agency, or (3) if Lender
has a reasonable belief that a violation of Environmental Law exists with
respect to the Property.
Article 5
General
5.1 Unimpaired Liability. The liability of Indemnitor under this Agreement shall
in no way be limited or impaired by (i) any extensions of time for performance
required by any of the Loan Documents, (ii) any sale or transfer of all or part
of the Property, (iii) except as provided herein, any exculpatory provision in
any of Loan Documents limiting Lender's recourse to the Property or to any other
security for the Loan, or limiting Lender's rights to a deficiency judgment
against Borrower, (iv) the accuracy or inaccuracy of the representations and
warranties made by or each Indemnitor herein or under any of the Loan Documents,
(v) the release of Borrower or any other Person from performance or observance
of any of the agreements, covenants, terms or condition contained in any of the
other Loan Documents by operation of law, Lender's voluntary act, or otherwise,
(vi) the release or substitution in whole or in part of any security for the
Loan, or (vii) Lender's failure to file any UCC financing statements (or
Lender's improper recording or filing of any thereof) or to otherwise perfect,
protect, secure or insure any security interest or lien given as security for
the Loan; and, in any such case, whether with or without notice to Borrower and
with or without consideration.
5.2 Indemnification Procedures. If any action shall be brought against Lender
based upon any of the matters for which Lender is indemnified hereunder, Lender
shall promptly notify Borrower in writing thereof and Borrower shall promptly
assume the defense thereof, including, without limitation, the employment of
counsel reasonably acceptable to Lender and the negotiation of any settlement;
provided, however, that any failure of Lender to notify Borrower of such matter
shall not impair or reduce the obligations of Borrower hereunder. Lender shall
have the right, at its own expense, to participate in the defense of any such
action using counsel selected by Lender and reasonably approved by Borrower;
provided, however, that Borrower shall pay the expenses of such counsel if the
named parties to any such action include both Borrower and Lender and
representation of both Borrower and Lender by the same counsel would be
inappropriate under applicable standards of professional conduct due to
conflicting interests between them (in which case, such expenses shall be
included in Losses). In the event Borrower shall fail to discharge or undertake
to defend Lender against any claim, Losses or liability for which Lender is
indemnified hereunder and for which Borrower has received written notice from
Lender, Lender may, at its sole option and election, defend or settle such
claim, Losses or liability. The liability of Borrower to Lender hereunder shall
be conclusively established by such settlement, provided such settlement is made
in good faith, the amount of such liability to include both the settlement
consideration and the costs and expenses, including, without limitation
10
reasonable attorney's fees and disbursements, incurred by Lender in effecting
such settlement. In such event, such settlement consideration, costs and
expenses shall be included in Losses and Borrower shall pay the same as
hereinafter provided. Lender's good faith in any such settlement shall be
conclusively established if the settlement is made on the advice of independent
legal counsel for Lender.
5.2.1 Borrower shall not, without the prior written consent of Lender: (i)
settle or compromise or cause to settled or compromised any action, suit,
proceeding or claim or consent to the entry of any judgment that does not
include as an unconditional term thereof the delivery by the claimant or
plaintiff to Lender of a full and complete written release of Lender (in form,
scope and substance satisfactory to Lender in its sole discretion) from all
liability in respect of such action, suit, proceeding or claim and a dismissal
with prejudice of such action, suit, proceeding or claim; or (ii) settle or
compromise any action, suit, proceeding or claim in any manner that may
adversely affect Lender or obligate Lender to pay any sum or perform any
obligation as determined by Lender in its sole discretion.
5.2.2 All Losses shall be immediately reimbursable to Lender when and as
incurred and, in the event of any litigation, claim or other proceeding, without
any requirement of waiting for the ultimate outcome of such litigation, claim or
other proceeding, and Borrower shall pay to Lender any and all Losses within
thirty (30) days after written notice from Lender itemizing the amounts thereof
incurred to the date of such notice. In addition to any other remedy available
for the failure of Borrower to periodically pay such Losses, such Losses, if not
paid within said thirty (30) day period, shall bear interest at the Default Rate
(as defined in the Loan Agreement).
5.2.3 If Borrower or Property Owner obtains any environmental risk
insurance policy or policies in connection with the Property, Lender agrees to
give its reasonable cooperation to the insurance company in connection with its
defense of any third party claims against Property Owner, Borrower or Lender
with respect to Hazardous Materials and to not unreasonably withhold its
approval of the counsel selected to defend Property Owner, Borrower and Lender
against such claims by such insurance company.
5.3 Enforcement. Indemnified Parties may enforce the obligations of Indemnitor
without first resorting to or exhausting any security or collateral or without
first having recourse to the any of the Collateral or the Property, through
foreclosure proceedings, UCC sale or otherwise, provided, however, that nothing
herein shall inhibit or prevent Lender from suing on the Loan Documents,
foreclosing, or exercising any power of sale or UCC sale rights under, the Loan
Documents, or exercising any other rights and remedies thereunder, to the extent
permitted thereunder. This Agreement is not collateral or security for the debt
of Borrower pursuant to the Loan, unless Lender expressly elects in writing to
make this Agreement additional collateral or security for the debt of Borrower
pursuant to the Loan, which Lender is entitled to do in its sole discretion.
Except as otherwise expressly provided under this Agreement, it is not necessary
for an event of default to have occurred pursuant to any Loan Document for
Indemnified Parties to exercise their rights pursuant to this Agreement.
Notwithstanding any provision of the Loan Documents to the contrary, the
obligations pursuant to this Agreement are exceptions to any non-recourse or
exculpation provision of the Loan Documents; Borrower and Guarantor are fully
and personally liable for such obligations, and Borrower's liability is not
limited to the original or amortized principal balance of the Loan or the value
of the Property.
11
5.4 Reinstatement of Obligations. If at any time all or any part of any payment
made by any Indemnitor or received by Lender from such Indemnitor under or with
respect to this Agreement is or must be rescinded or returned for any reason
whatsoever (including, but not limited to, the insolvency, bankruptcy or
reorganization of such Indemnitor), then the obligations of Indemnitors
hereunder shall, to the extent of the payment rescinded or returned, be deemed
to have continued in existence, notwithstanding such previous payment made by
any such Indemnitor, or receipt of payment by Lender, and the obligations of
Indemnitors hereunder shall continue to be effective or be reinstated, as the
case may be, as to such payment, all as though such previous payment by such
Indemnitor had never been made.
Article 6
Waivers
6.1 Waivers by Guarantor. To the extent permitted by law, Guarantor hereby
waives and agrees not to assert or take advantage of the following: (a) any
right to require an Indemnified Party (i) to proceed against Borrower or any
other Person, (ii) to proceed against or exhaust any security held by any
Indemnified Party at any time or (iii) to pursue any other remedy in such
Indemnified Party's power or under any other agreement, in any case, before
proceeding against Guarantor hereunder; (b) any defense that may arise by reason
of the incapacity, lack of authority, death or disability of any other Person of
the failure of an Indemnified Party to file or enforce a claim against the
estate (in administration, bankruptcy or any other proceeding) of any other
Person; (c) any demand, presentment for payment, protest and notice of protest,
demand, dishonor and nonpayment and all other notices, except as expressly
required by the Loan Documents, including, without limitation, notice of new or
additional indebtedness or obligations or of any action or non-action on the
part of Borrower, Lender, any endorser or creditor of Borrower or of Guarantor
or of any other Person whomsoever under this Agreement or any other Loan
Document; (d) any defense based upon an election of remedies, splitting a cause
of action or merger of judgments by any Indemnified Party; (e) any right or
claim of right to cause a marshalling of the assets of Guarantor; (f)
{reserved]; (g) any duty on the part of any Indemnified Party to disclose to
Guarantor any facts such Indemnified Party may now or hereafter know about
Borrower or the Property, regardless of whether such Indemnified Party (i) has
reason to believe that any such facts materially increase the risk beyond that
which Guarantor intends to assume, (ii) has reason to believe that such facts
are unknown to Guarantor or (iii) has a reasonable opportunity to communicate
such facts to Guarantor, it being understood and agreed that Guarantor is fully
responsible for being informed of the financial condition of Borrower, the
condition of the Property and of all other circumstances bearing on the risk
that liability may be incurred by Guarantor hereunder; (h) any invalidity,
irregularity or unenforceability, in whole or in part, of any one or more of the
Loan Documents; (i) any lack of commercial reasonableness in dealing with the
Collateral for the Loan; (j) any deficiencies in the Collateral for the Loan or
any deficiency in the ability of Lender to collect or to obtain performance from
any Persons now or hereafter liable for the payment and performance of any
obligation hereby guaranteed; (k) an assertion or claim that the automatic stay
provided by 11 U.S.C. ss.362 (arising upon the voluntary or involuntary
12
bankruptcy proceeding of Borrower or Guarantor) or any other stay provided under
any other debtor relief law (whether statutory, common law, case law or
otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may
be or become applicable, shall operate or be interpreted to stay, interdict,
condition, reduce or inhibit the ability of Lender to enforce any of its rights,
whether now existing or hereafter acquired, which Lender may have against
Guarantor, Borrower or the Collateral for the Loan; and (l) any modifications of
any of the Loan Documents or any obligation of Borrower or Guarantor relating to
the Loan by operation of law or by action of any court, whether pursuant to the
Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law
(whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, or otherwise.
Borrower and Guarantor covenant and agree that upon the commencement of a
voluntary or involuntary bankruptcy proceeding by or against Borrower or
Guarantor, neither Borrower nor Guarantor shall seek a supplemental stay or
otherwise pursuant to 11 U.S.C. ss.105 or any other provision of the Bankruptcy
Reform Act of 1978, as amended, or any other debtor relief law (whether
statutory, common law, case law, or otherwise) of any jurisdiction whatsoever,
now or hereafter in effect, which may be or become applicable, to stay,
interdict, condition, reduce or inhibit the ability of Lender to enforce any
rights of Lender against Borrower or Guarantor by virtue of this Agreement or
otherwise.
6.2 Waivers by Each Indemnitor. Each Indemnitor hereby waives and agrees to not
assert or take advantage of the following: (a) any right or claim of right to
cause a marshaling of Borrower's assets or to cause Lender or other Indemnified
Parties to proceed against any of the security for the Loan before proceeding
under this Agreement against each Indemnitor; (b) all rights and remedies
accorded by applicable law to each Indemnitor that might constitute a legal
discharge of such Indemnitor as a surety or guarantor, except any rights of
subrogation which such Indemnitor may have, provided that the indemnity provided
for hereunder shall neither be contingent upon the existence of any such rights
of subrogation nor subject to any claims or defenses whatsoever which may be
asserted in connection with the enforcement or attempted enforcement of such
subrogation rights including, without limitation, any claim that such
subrogation rights were abrogated by any acts of Lender or other Indemnified
Parties; (c) the right to assert a counterclaim, other than a mandatory or
compulsory counterclaim, in any action or proceeding brought against or by
Lender or other Indemnified Party; (d) notice of acceptance hereof and of any
action taken or omitted in reliance hereon; (e) presentment for payment, demand
of payment, protest or notice of nonpayment or failure to perform or observe, or
other proof, or notice or demand unless specifically required to be made upon or
delivered to any Indemnitor by this Agreement or the other Loan Documents; and
(f) the benefits of any statutes of limitations.
Notwithstanding anything to the contrary contained herein, each Indemnitor
agrees to postpone the exercise of any rights of subrogation with respect to any
Collateral securing the Loan until the Loan shall have been indefeasibly paid in
full. No delay by any Indemnified Party in exercising any right, power or
privilege under this Agreement shall operate as a waiver of such right, power or
privilege.
13
Article 7
Miscellaneous
7.1 Notices. All notices and other written communication which are required or
called for under any provision of this Agreement shall be effective only if they
are in writing, addressed to the proper party at the applicable address for
notice indicated on the signature page of this Agreement and sent in one of the
following ways: (i) by U.S. Mail; (ii) by a recognized overnight carrier, such
as Federal Express, marked for next day delivery; or (iii) by facsimile
transmission; in each case with delivery charges (if any) prepaid and addressed
to each party at its address for notices. Any party may change its address for
notice by giving notice to the other parties in the manner provided herein. Such
a notice or other communication shall be deemed delivered at the following
times: if sent by U.S. Mail, then upon receipt or refusal to accept delivery; if
sent by a recognized overnight carrier, then one (1) Business Day after the
acceptance by the carrier for next day delivery; and if by facsimile, on the
Business Day it is sent if the sender verifies that the notice was received at
the recipient's facsimile machine during regular business hours on the day sent
- - otherwise, on the next Business Day; provided that any notice or other
communication sent by facsimile must be reasonably legible when received by a
properly operating facsimile receiver.
7.2 Duplicate Originals; Counterparts. This Agreement may be executed in any
number of duplicate originals and each duplicate original shall be deemed to be
an original. This Agreement may be executed in several counterparts, each of
which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Agreement. The failure of any party hereto to
execute this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
7.3 No Oral Change. This Agreement, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally or
by any act or failure to act on the part of Indemnitor or any Indemnified Party,
but only by an agreement in writing signed by the party against whom enforcement
of any modification, amendment, waiver, extension, change, discharge or
termination is sought.
7.4 Headings, etc. The headings and captions of various paragraphs of this
Agreement are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
7.5 Number and Gender/Successors and Assigns. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular or
plural as the identity of the person or persons referred to may require. Without
limiting the effect of specific references in any provision of this Agreement,
the term "Borrower" shall be deemed to refer to each and every person or entity
comprising Borrower from time to time, as the sense of a particular provision
may require, and to include the successors and assigns of Borrower, all of whom
shall be bound by the provisions of this Agreement, provided that no obligation
of Borrower may be assigned except with the written consent of Lender. Without
limiting the effect of specific references in any provision of this Agreement,
the term "Guarantor" shall be deemed to refer to each and every person or entity
14
comprising each such Guarantor from time to time, as the sense of a particular
provision may require, and to include the successors and assigns of such
Guarantor, all of whom shall be bound by the provisions of this Agreement,
provided that no obligation of such Guarantor may be assigned except with the
written consent of Lender. Each reference herein to Lender shall be deemed to
include its successors and assigns. This Agreement shall inure to the benefit of
Indemnified Parties and their respective successors and assigns.
7.6 Joint and Several Liability. The obligations and liabilities of each
Indemnitor hereunder are joint and several.
7.7 Release of Liability. Any one or more parties liable upon or in respect of
this Agreement may be released without affecting the liability of any party not
so released.
7.8 Rights Cumulative. The rights and remedies herein provided are cumulative
and not exclusive of any rights or remedies which Lender has under the other
Loan Documents or would otherwise have at law or in equity.
7.9 Inapplicable Provisions. If any term, condition or covenant of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.
7.10 Governing Law. This Agreement and the obligations arising hereunder shall
be governed by, and construed in accordance with, the laws of the State of
Maryland applicable to contracts made and intended to be performed in such
state, without giving effect to principles of conflicts of laws, and any
applicable law of the United States of America.
7.11 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORROWER AND
LENDER 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 AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF EITHER PARTY OR ANY
EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS HEREUNDER OR IN ANY WAY
RELATING TO THE LOAN OR THE PROPERTY (INCLUDING ANY ACTION TO RESCIND OR CANCEL
THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT WAS
FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A
MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN.
7.12 Approvals. Wherever pursuant to this Agreement (i) Indemnified Parties
exercise any right given to it to approve or disapprove, (ii) any arrangement or
term is to be satisfactory to Indemnified Parties, or (iii) any other decision
or determination is to be made by Indemnified Parties, the decision of
Indemnified Parties to approve or disapprove, all decisions that arrangements or
terms are satisfactory or not satisfactory and all other decisions and
determinations made by Indemnified Parties, shall be in the reasonable
discretion of Indemnified Parties, except as may be otherwise expressly and
specifically provided herein.
15
7.13 Legal Fees. Wherever pursuant to this Agreement it is provided that
Indemnitor pay any costs and expenses, such costs and expenses shall include,
but not be limited to, legal fees and disbursements of Indemnified Parties.
Indemnitor shall reimburse Lender for all reasonable attorneys' fees, costs and
expenses incurred by Lender in connection with the enforcement of Lender's
rights under this Agreement, including, without limitation reasonable attorneys'
fees, costs and expenses for trial, appellate proceedings, out-of-court
negotiations, workouts and settlements, or for enforcement of rights under any
state or federal statute, including without limitation reasonable attorneys'
fees, costs and expenses incurred in bankruptcy and insolvency proceedings, such
as (but not limited to) seeking relief from stay in a bankruptcy proceeding. The
term "expenses" means any expenses incurred by Lender in connection with any of
the out-of-court, or state, federal or bankruptcy proceedings referred to above,
including without limitation the fees and expenses of any appraisers,
consultants and expert witnesses retained or consulted by Lender in connection
with any such proceeding. Lender shall also be entitled to its reasonable
attorneys' fees, costs and expenses incurred in any post-judgment proceedings to
collect and enforce the judgment. This provision is separate and several, shall
survive the termination of this Agreement, and shall survive the merger of this
Agreement into any judgment on this Agreement.
7.14 Loan Amount No Limitation. The amount of Indemnitor's liability under this
Agreement is unrelated to and independent of, the amount of any Losses that
Lender may suffer by reason of the failure of the Loan to be repaid in full, and
shall not be determined by reference to the amount of any Loan loss. The
enforcement of this Agreement by any Indemnified Party shall not be construed as
an indirect attempt to recover any such Loan loss. Indemnitor acknowledges that
they may have liability under this Agreement even if the Loan is repaid in full
by reason of a full credit bid at any foreclosure sale UCC sale, judicial sale
or non-judicial sale under or release of the Pledge Agreement, and that the
amount of Indemnitor's liability hereunder could exceed the entire amount paid
by Property Owner for the Property.
7.15 Survival. The obligations and liabilities of Indemnitor under this
Agreement shall fully survive indefinitely notwithstanding any termination,
satisfaction, assignment, entry of a judgment of foreclosure, exercise of any
power of sale, UCC sale or delivery of an assignment of ownership interests in
Borrower or Property Owner in lieu of foreclosure, UCC sale, judicial sale or
non-judicial sale under the Pledge Agreement or the Deed of Trust, as
applicable, subject to the final sentence of Section 2.1.
7.16 Time. Time is of the essence in this Agreement and all its provisions.
(Signature page follows)
16
This Agreement has been executed by Indemnitor and is effective as of the
day and year first above written.
GUARANTOR:
/s/ Stanley Wendzel
------------------------------
STANLEY WENDZEL
Address for Notices:
c/o BioRealty, Inc.
9811 Irvine Center Drive
Irvine, California 92618
Attention: Stan Wendzel
Fax: *
[signatures continue on next page]
17
PROPERTY OWNER:
VIF II CEL-SCI PARTNERS, LLC,
a Delaware limited liability company
By: /s/ Stan Wendzel
Name: Stan Wendzel
Title: Manager
Address for Notices:
c/o BioRealty, Inc.
9811 Irvine Center Drive
Irvine, California 92618
Attention: Stan Wendzel
Fax: *
Lender's Address for Notices:
c/o American Realty Advisors
801 N. Brand Blvd., Suite 800
Glendale, CA 91203
Attention: Stan Wendzel
Telephone: *
Facsimile: *
18
EXHIBIT A
LEGAL DESCRIPTION
*
19
SECOND AMENDMENT TO LEASE AGREEMENT
AND WORK LETTER AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT AND WORK LETTER AGREEMENT
("Second Amendment"), is made and dated for reference purposes only as of
January 9, 2008, between VIF II CEL-SCI PARTNERS, LLC, a Delaware limited
liability company ("Landlord"), and CEL-SCI CORPORATION, a Colorado corporation
("Tenant"), with reference to the following facts:
A. Landlord and Tenant entered into that certain Lease Agreement, dated
June 6, 2007 ("Original Lease"), together with that certain Work Letter
Agreement dated June 6, 2007 (the "Work Letter"), as amended by that certain
First Amendment to Lease Agreement and Work Letter Agreement dated August 7,
2007 (the "First Amendment"), for premises located at * ("Premises"). The
Original Lease, Work Letter and First Amendment are sometimes collectively
referred to herein as the "Lease". Except as otherwise modified in this Second
Amendment, defined terms used herein shall have the same meanings given to them
in the Lease.
B. Pursuant to Section 3.5 of the Lease, Tenant has delivered to Landlord
Tenant's TI Contribution in the amount of $3,150,000.
C. Pursuant to Section 4.2 of the Work Letter, Tenant has delivered to
Landlord the initial estimated Excess Costs in the amount of $3,954,860.
Tenant's TI Contribution and the initial estimated Excess Costs are collectively
referred to herein as the "Initial Contribution" and equal, in the aggregate,
$7,104,860.
D. In order to facilitate the build-out of the Premises, Landlord has
agreed to move forward with certain tenant improvement work at the Premises
while the building permit for Landlord's Work is being processed (the "Permit"),
subject, however, to the terms and conditions of this Second Amendment.
E. Landlord and Tenant now desire to amend the Lease and Work Letter as
set forth in this Second Amendment.
THEREFORE, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Landlord and Tenant hereby agree to amend the Lease and
Work Letter as follows:
1. Pre-Permit Work; Tenant Indemnity. As soon as reasonably
practicable after the full execution of this Second Amendment, Landlord
hereby agrees to perform certain portions of Landlord's Work (the
"Pre-Permit Work") that do not require the issuance of the Permit from
Howard County, Maryland (the "County"), subject to the following:
1
a. Subject to the provisions of Section 4.2 of the Work Letter,
Landlord shall have the right to use funds from the Initial Contribution
to pay for all costs incurred by Landlord in performing the Pre-Permit
Work.
b. If the County or any other governmental agency with jurisdiction
over the Property requires Landlord to cease the Pre-Permit Work for any
reason, including, without limitation, the failure to obtain the Permit,
Landlord shall have the right to immediately cease such Pre-Permit Work
until such time as the Permit is issued and Landlord shall not be deemed
to be in default under the terms of the Lease or this Second Amendment or
otherwise be subject to any liability as a result thereof. Tenant shall be
responsible for, and shall otherwise indemnify, defend and hold Landlord
harmless from and against any and all claims, losses or liabilities
arising out of the performance of the Pre-Permit Work by Landlord,
including, without limitation, the payment of any fines, penalties or
other fees that may be charged by the County in connection with Landlord's
performance of the Pre-Permit Work. Notwithstanding anything to the
contrary contained in this Second Amendment, Tenant's obligations under
Section 4.2 of the Work Letter shall continue to be applicable and
enforceable in the event Landlord is required to cease the Pre-Permit
Work.
c. If despite good-faith efforts, Landlord is unable to obtain the
Permit by June 30, 2009 for any reason, Landlord may elect, in Landlord's
sole and absolute discretion, to restore all or any portion of the
Premises to the condition existing prior to the Pre-Permit Work. All costs
relating to such restoration (which costs may include, without limitation,
architects', attorneys' and other consultants' fees and construction and
materials fees) (collectively, the "Restoration Costs") shall be paid by
Tenant. In connection with the foregoing, Landlord may apply any remaining
balance of the Initial Contribution towards the Restoration Costs. To the
extent the amount of the Restoration Costs exceed the remaining balance of
the Initial Contribution as reasonably determined by Landlord, Tenant
shall, within twenty (20) days after receipt of written demand from
Landlord (which demand shall include a breakdown of the remaining costs to
restore the Premises or any portion thereof), deliver to Landlord the
total amount of the Restoration Costs. For the purposes hereof, all
invoices, receipts or statements furnished by Landlord's architects,
engineers, contractors, sub-contractors, and agents shall suffice as
documentation establishing any such Restoration Costs. If Tenant fails to
deliver the Restoration Costs to Landlord within such 20-day period, the
Restoration Costs shall accrue interest at the rate of ten percent (10%)
per annum until the Restoration Costs, plus all accrued interest, are paid
in full.
2. Landlord's Work; Improvements. Tenant acknowledges that
notwithstanding the terms and conditions set forth in the Work Letter, Tenant
has been actively involved in the pre-construction phase of the Improvements
(i.e., the design) and that Landlord has implemented such design elements as
Tenant has directed or requested (the "Pre-Construction Elements"), and will
continue to implement, in Landlord's reasonable discretion, such
Pre-Construction Elements as Tenant may request in the future from time to time.
Accordingly, Tenant hereby assumes all risk in connection with any Tenant-based
design elements that have been incorporated into the Pre-Construction Elements
2
and agrees to waive any and all claims that Tenant may have against Landlord in
connection with the implementation of the same. In connection with the
foregoing, Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all claims, losses or liabilities (collectively, "Claims") that
may arise out of the Pre-Construction Elements, including, without limitation,
any Claims relating to design defects arising out of the implementation of any
Pre-Construction Elements. Notwithstanding the foregoing provisions of this
Section 2, Landlord's obligations under Section 3.3 of the Work Letter
(Completion of Landlord's Work) will remain unchanged.
3. Environmental Indemnity. Tenant confirms that Landlord is
currently in the process of negotiating a construction contract with BE&K
Building Group, Inc. ("BE&K"), for the construction of Landlord's Work (the
"Construction Contract"). In connection with such Construction Contract, BE&K is
requiring that Landlord indemnify BE&K from certain claims, losses and
liabilities arising out of the existence of any hazardous materials (including,
without limitation, the existence of any asbestos containing materials ("ACMs")
and polychlorinated biphenyls ("PCBs")) at the Property. Notwithstanding
anything to the contrary contained in the Lease or Work Letter and except to the
extent caused by the gross negligence or willful misconduct of Landlord, Wendzel
or Kornich, Tenant hereby agrees to be solely responsible for, and shall
otherwise indemnify, defend and hold Wendzel or Kornich harmless from and
against, any and all claims, liabilities, losses and the costs of any
remediation required that may arise under the environmental indemnity set forth
in the Construction Contract for which Landlord, Wendzel/Kornich may be liable.
In connection therewith, Tenant further agrees to be responsible for all costs
relating to any inspections, testing, or appraisals that may be required as a
result of the presence of any such hazardous materials, ACMs or PCBs. Tenant
shall pay any costs required to be paid by Tenant under this Section 2 within
twenty (20) days after receipt of written demand and copies of invoices
evidencing such costs.
4. Meetings with BE&K. Provided Tenant is not in default under the
Lease or Work Letter beyond any applicable notice and cure periods, Landlord
shall use reasonable efforts to provide Jones and Burkhart (as defined in the
Work Letter) with reasonable prior notice of any relevant meetings regarding the
Property between Landlord and BE&K Building Group, Inc. ("BE&K") so that Jones
and/or Burkhart may attend and participate in such meetings.
5. Termination of Construction Contract for Convenience. Tenant
acknowledges that the Construction Contract by and between Landlord and BE&K
contains a termination for convenience clause giving Landlord the right to
terminate the Construction Contract. Landlord hereby agrees not to exercise such
termination for convenience unless (i) Tenant is in default under the Lease or
Work Letter beyond any applicable notice and cure periods, or (ii) Tenant has
delivered a written request to Landlord to terminate the Construction Contract
for convenience and Landlord otherwise determines in its sole, subjective
discretion that it is appropriate to terminate the Construction Contract.
6. Construction Contract Line Item Reallocation. Tenant acknowledges
that the Construction Contract by and between Landlord and BE&K requires
Landlord's approval (not to be unreasonably withheld) prior to BE&K reallocating
General Conditions, Corporate Services and Movable Equipment budget line items.
Landlord hereby agrees to authorize any such line item reallocations requested
by Tenant in writing, so long as (i) Tenant is not in default under the Lease or
3
Work Letter beyond any applicable notice and cure periods, (ii) there exists no
unfunded Excess Costs and (iii) the requested reallocation is necessary to
account for an agreed upon line item deficit.
7. Quality Control Supervisor. Without altering Tenant's access
rights contained in Article VI of the Work Letter, Landlord agrees to grant
Jones a temporary, revocable license to enter the Premises and serve as an
on-site quality control inspector (the "QC Inspector") to inspect the delivery
of equipment and materials and inform Landlord of any issues with regard to the
quality of Landlord's Work so long as the QC Inspector's efforts do not
interfere with or otherwise impede the performance of Landlord's Work. The QC
Inspector will communicate any related quality concerns to Landlord by
electronic mail to the attention of Pete McCawley with a copy to Landlord's
Representative (i.e., Stan Wendzel) and Doug Kornich. In the event of any
interference by QC Inspector with the performance of Landlord's Work (e.g.,
disturbance of GC Means and Methods, directing subcontractor(s) to perform work,
causing Project delays), Landlord may immediately terminate QC Inspector's
rights under this Section 7 and such interference may constitute a Tenant Delay
under the Lease and Work Letter.
8. Cost Segregation. Notwithstanding anything to the contrary
contained in the Lease or the Work Letter, with the exception of the Movable
Equipment identified in Schedule 1 of the Lease (as amended by the First
Amendment), Landlord's Share of Project Cost is deemed to have, or will
otherwise be used to pay for the components of the Improvements at the Property
that qualify as Internal Revenue Code Section 1245 Property (the "1245
Property"), which 1245 Property has been previously outlined in the cost
segregation study prepared for the Property.
9. Cost-Savings Incentive Fee. The definition of "Cost Savings
Incentive Fee" as defined in Section 1.15 of the Work Letter is hereby deleted
and replaced in its entirety with the following:
"1.15 "Cost Savings Incentive Fee" means the fee payable to Landlord
and shall be an amount equal to fifty percent (50%) of the
difference between $14,500,000 and the actual Project Cost (but only
if the actual Project Cost is less than $14,500,000) paid to the
General Contractor, excluding additive Change Orders. In no event
will the Cost Savings Incentive Fee be less than zero.
10. Excess Costs. To the extent Tenant is required to pay any
additional Excess Costs based on the revised Project Budget attached
hereto or otherwise during the course of construction of the Improvements,
Tenant shall deliver such Excess Costs to Landlord within ten (10) days
after receipt of written notice from Landlord that such Excess Costs are
due and payable. Excess Costs paid by Tenant will be based on the amended
Project Budget attached hereto as Schedule 1, which amended Project Budget
is based on the interim GMAX Construction Contract dated as of December
21, 2007 (the "Interim GMAX"). On or before February 15, 2008, the Project
Budget will be amended based on a final GMAX Construction Contract (the
"Final GMAX") and Landlord shall promptly refund to Tenant any overage in
Excess Costs funded by Tenant (including any excess Contingency currently
held in Escrow), which overage shall be the difference between the amount
of Excess Costs to be funded by Tenant based on the Interim GMAX and the
amount of Excess Costs to be funded by Tenant based on the Final GMAX.
4
11. Baseline Documents; Design Development Plans.
a. Landlord and Tenant hereby approve those certain Design
Development Plans, delivered to Tenant on December 21, 2007, prepared by
BE&K Engineering, Inc., and dated November 27, 2007 and December 6, 2007,
as amended on December 14, 2007 by Tenant and its representative Todd
Burkhart (the "DD Plans"). Landlord acknowledges that the proposed changes
to the Drawings and Specifications delivered by Todd Burkhart (on behalf
of Tenant) to BE&K Engineering, Inc. on December 14, 2007 (the "December
14 Changes") have not yet been incorporated into the DD Plans. Landlord
agrees that the December 14 Changes will be incorporated into the next set
of DD Plans to be issued by BE&K Engineering, Inc., provided that Tenant
reserves the right to inspect the next set of DD Plans to ensure that the
December 14 Changes have been properly incorporated into the DD Plans.
Landlord and Tenant confirm that the DD Plans and the Preliminary Plans
(as defined in the Work Letter) are the same set of plans and accordingly,
all references to Preliminary Plans in the Work Letter shall mean and
refer to the DD Plans.
b. In connection with the foregoing, Tenant hereby acknowledges that
its approval of the DD Plans constitutes approval of the Preliminary Plans
and that Tenant further confirms that it has approved the revised Project
Budget, Project Schedule and General Contractor's Estimated Budget (as
each of those terms are defined in the Work Letter). Accordingly, Schedule
1 (Project Budget), Schedule 2 (Project Schedule) and Schedule 3 (General
Contractor's Estimated Budget) of the Work Letter are hereby deleted and
replaced in their entirety with the revised Schedules attached to this
Second Amendment as Exhibits "A", "B", and "C". Notwithstanding the
provisions of Section 2.1(f) of the Work Letter, Schedule 6 (Reserved) of
the Work Letter is hereby deleted in its entirety. Notwithstanding the
foregoing, Landlord and Tenant agree that the final Project Budget and the
final Project Schedule will be prepared on or about February 15, 2008, and
once finalized, the Work Letter will be amended to incorporate the final,
approved Project Budget and Project Schedule as revised Schedules 1 and 2,
respectively, and to otherwise reflect the Final GMAX.
13. Broker Representation. Landlord and Tenant represent to one
another that neither party has dealt with any broker nor is any other fee
or commission payable in connection with this Second Amendment. Landlord
and Tenant shall indemnify, defend and hold one another harmless from and
against any and all claims, losses and liabilities arising out of, or
relating to, a breach by the indemnifying party of such representation.
14. No Other Amendments. The Lease referred to hereinabove and this
Second Amendment constitute the entire agreement by and between Landlord
and Tenant and supercede any other agreement or representation, written or
oral, that either party may hereinafter assert or allege exist, and the
Lease, as hereby modified, remains in full force, except as amended by
this Second Amendment, and is hereby ratified and reaffirmed as amended by
this Second Amendment. From and after the date hereof, all references to
the "Lease" shall refer to the Lease as amended by t his Second Amendment.
5
15. Conflicts. If any conflict between this Second Amendment and the
Lease should arise, the terms of this Second Amendment shall control.
16. Successor and Assigns. This Second Amendment shall be binding
upon and inure to the benefit of the successors and assigns of the
respective parties hereto.
17. Counterparts. This Second Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
shall together constitute a single instrument.
18. Time of the Essence. Time shall be the essence with respect to
all matters under this Second Amendment.
[SIGNATURES ON FOLLOWING PAGE]
6
The parties have executed this Second Amendment as of the date first
written above.
LANDLORD: TENANT:
VIF II CEL-SCI Partners, LLC, CEL-SCI CORPORATION,
a Delaware limited liability company a Colorado corporation
By: /s/ Stan Wendzel By: /s/ Geert R. Kersten
-------------------------- ---------------------------
Name: Stan Wendzel Name: Geert R. Kersten
-------------------------- ---------------------------
Title: Manager Title: Chief Executive Officer
-------------------------- ---------------------------
7
EXHIBIT "A"
Schedule 1
[Project Budget]
[See Attached]
***
EXHIBIT "B"
Schedule 2
[Project Schedule]
[See Attached]
***
EXHIBIT "C"
Schedule 3
[General Contractor's Estimated Budget]
[See Attached]
***
THIRD AMENDMENT TO LEASE AGREEMENT
AND WORK LETTER AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT AND WORK LETTER AGREEMENT ("Third
Amendment"), is made and dated for reference purposes only as of April __, 2008,
between VIF II CEL-SCI PARTNERS, LLC, a Delaware limited liability company
("Landlord"), and CEL-SCI CORPORATION, a Colorado corporation ("Tenant"), with
reference to the following facts:
A. Landlord and Tenant entered into that certain Lease Agreement, dated
June 6, 2007 ("Original Lease"), together with that certain Work Letter
Agreement dated June 6, 2007 (the "Work Letter"), as amended by (i) that certain
First Amendment to Lease Agreement and Work Letter Agreement dated August 7,
2007 (the "First Amendment") and (ii) that certain Second Amendment to Lease
Agreement and Work Letter Agreement dated January 24, 2008 (the "Second
Amendment"), for premises located at * ("Premises"). The Original Lease, Work
Letter, First Amendment and Second Amendment are sometimes collectively referred
to herein as the "Lease". Except as otherwise modified in this Third Amendment,
defined terms used herein shall have the same meanings given to them in the
Lease.
B. Landlord and Tenant now desire to amend the Lease and Work Letter as
set forth in this Third Amendment.
THEREFORE, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Landlord and Tenant hereby agree to amend the Lease and
Work Letter as follows:
1. Final Project Budget; Project Schedule; General Contractor's Estimated
Budget.
a. Final Project Budget. Landlord and Tenant hereby confirm that the
final Project Budget, which is based on the Final GMAX, has been approved by
Landlord and Tenant and accordingly, Schedule 1 (Project Budget) of the Work
Letter, as amended by the Second Amendment, is hereby deleted and replaced in
its entirety with Exhibit "A" attached hereto and incorporated herein by this
reference.
b. Project Schedule and General Contractor's Estimated Budget. Schedule
"2" (Project Schedule) and Schedule "3" (General Contractor's Estimated Budget)
of the Work Letter, as amended by the Second Amendment, are hereby deleted and
replaced in their entirety with Exhibits "B" and "C" attached hereto and
incorporated herein by this reference.
2. Excess Costs. Tenant hereby confirms that pursuant to Section 10 of the
Second Amendment, Tenant shall pay any additional Excess Costs based on the
Project Budget (as amended by this Amendment), or otherwise during the course of
construction of the Improvements, within ten (10) days after receipt of written
notice from Landlord that such Excess Costs are due and payable.
1
3. Broker Representation. Landlord and Tenant represent to one another
that neither party has dealt with any broker nor is any other fee or commission
payable in connection with this Third Amendment. Landlord and Tenant shall
indemnify, defend and hold one another harmless from and against any and all
claims, losses and liabilities arising out of, or relating to, a breach by the
indemnifying party of such representation.
4. No Other Amendments. The Lease referred to hereinabove and this Third
Amendment constitute the entire agreement by and between Landlord and Tenant and
supercede any other agreement or representation, written or oral, that either
party may hereinafter assert or allege exist, and the Lease, as hereby modified,
remains in full force, except as amended by this Third Amendment, and is hereby
ratified and reaffirmed as amended by this Third Amendment. From and after the
date hereof, all references to the "Lease" shall refer to the Lease as amended
by this Third Amendment.
5. Conflicts. If any conflict between this Third Amendment and the Lease
should arise, the terms of this Third Amendment shall control.
6. Successor and Assigns. This Third Amendment shall be binding upon and
inure to the benefit of the successors and assigns of the respective parties
hereto.
7. Counterparts. This Third Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
together constitute a single instrument.
8. Time of the Essence. Time shall be the essence with respect to all
matters under this Third Amendment.
[SIGNATURES ON FOLLOWING PAGE]
2
The parties have executed this Third Amendment as of the date first written
above.
LANDLORD: TENANT:
VIF II CEL-SCI Partners, LLC, CEL-SCI CORPORATION,
a Delaware limited liability company a Colorado corporation
By: /s/ Stan Wendzel By: /s/ Geert R. Kersten
--------------------------- ----------------------------
Name: Stan Wendzel Name: Geert R. Kersten
--------------------------- ----------------------------
Title: Manager Title: Chief Executive Officer
--------------------------- ----------------------------
3
EXHIBIT "A"
Schedule 1
[Project Budget]
[See Attached]
***
EXHIBIT "B"
Schedule 2
[Project Schedule]
[See Attached]
***
EXHIBIT "C"
Schedule 3
[General Contractor's Estimated Budget]
[See Attached]
***
FOURTH AMENDMENT TO LEASE AGREEMENT
THIS FOURTH AMENDMENT TO LEASE AGREEMENT ("Fourth Amendment"), is made and
dated for reference purposes only as of January 27, 2009, between VIF II CEL-SCI
PARTNERS, LLC, a Delaware limited liability company ("Landlord"), and CEL-SCI
CORPORATION, a Colorado corporation ("Tenant"), with reference to the following
facts:
A. Landlord and Tenant entered into that certain Lease Agreement, dated
June 6, 2007 ("Original Lease"), together with that certain Work Letter
Agreement dated June 6, 2007 (the "Work Letter"), as amended by (i) that certain
First Amendment to Lease Agreement and Work Letter Agreement dated August 7,
2007 (the "First Amendment"), (ii) that certain Second Amendment to Lease
Agreement and Work Letter Agreement dated January 24, 2008 (the "Second
Amendment"), and (iii) that certain Third Amendment to Lease Agreement and Work
Letter Agreement dated December 5, 2008 (the "Third Amendment"), for premises
located at * ("Premises"). The Original Lease, Work Letter, First Amendment,
Second Amendment and Third Amendment are sometimes collectively referred to
herein as the "Lease". Except as otherwise modified in this Fourth Amendment,
defined terms used herein shall have the same meanings given to them in the
Lease.
B. Landlord and Tenant now desire to amend the Lease as set forth in this
Fourth Amendment.
THEREFORE, for valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Landlord and Tenant hereby agree to amend the Lease as
follows:
1. Base Annual Rent.
a. Deferred Base Annual Rent. Subject to the provisions of Sections
1.b, 1.c and 1.d, below, (i) Tenant's obligation to pay Base Annual Rent for
December 2008 shall be temporarily deferred ("December Deferred Rent"), (ii) the
monthly installments of Base Annual Rent payable by Tenant for January 2009 and
February 2009 shall be temporarily reduced to Thirty-Five Thousand and 00/100
Dollars ($35,000.00) per month (collectively, "January/February Reduced Rent"),
and (iii) the difference between Tenant's obligation to pay Base Annual Rent for
January and February 2009 and the amount actually paid by Tenant under Section
1.a. (ii), above, shall be temporarily deferred (collectively, "January/February
Deferred Rent"). December Deferred Rent and January/February Deferred Rent
(which collectively equal $393,750.00 less the amount of Base Annual Rent
actually paid by Tenant for January and February 2009) shall collectively be
referred to herein as the "Deferred Rent". As partial consideration for
Landlord's agreement to the temporary reduction in monthly Base Annual Rent for
January 2009 and February 2009, Tenant shall deliver to Landlord, via wire
transfer, a sum equal to January/February Reduced Rent (i.e., a total of
$70,000.00) within one (1) business day after Tenant has received the funding
from its next round of financing (which closing is estimated to occur by
February 28, 2009), which sum shall be applied to Deferred Rent or any other sum
due under the Lease, as amended hereby. As used in this Amendment, the term
"financing" means any capital or monies raised or otherwise obtained through (i)
equity financing (including, without limitation, the sale of common or preferred
stock), (ii) convertible debt, (iii) cash payments or distributions made to
1
Tenant in connection with licensing, partnership or other similar agreements,
(iv) the sale of all or any portion of Tenant and/or any affiliated company of
Tenant, (v) a merger or like-kind transaction, (vi) equipment financing, (vii)
state or federal income tax refunds, or (viii) any other equity or convertible
debt financing instrument that provides capital to Tenant.
b. Resumption of Base Annual Rent. Beginning with the monthly
installment of Base Annual Rent for March 2009 and continuing for the remainder
of the Lease Term, Tenant shall pay the full monthly installment of Base Annual
Rent as required under Section 3.1 of the Lease. Tenant's failure to pay the
entire monthly installment of Basic Annual Rent for March 2009 and each
subsequent month during the Lease Term thereafter as and when required under the
Lease shall constitute a material default under this Lease and shall entitle
Landlord to pursue any and all remedies available to Landlord under the Lease,
at law or in equity.
c. Deferred Rent Payback. Within one (1) business day after Tenant has
received the funding from its next round of Qualified Financing (defined below)
and within one (1) business day after Tenant has received the funding from each
subsequent round of Qualified Financing, Tenant shall deliver to Landlord an
amount equal to ten percent (10%) of the Qualified Financing Margin (defined
below) to be applied to Deferred Rent until such time as the Deferred Rent has
been repaid to Landlord in full. As used herein, the term "Qualified Financing"
means any financing (as such term is defined in Section 1.a., above), which
occurs subsequent to the date of this Fourth Amendment. As used herein, the term
"Qualified Financing Margin" means the difference between (i) the total amount
of capital raised under a Qualified Financing or multiple Qualified Financings
less the actual, out-of-pocket expenses incurred by Tenant in connection with
such financing(s) and (ii) $2,000,000.00. By way of example only, if Tenant's
next round of financing results in a Qualified Financing equal to $2,300,000.00
(net of actual, out-of-pocket expenses), the Qualified Financing Margin would be
$300,000.00 and Tenant would deliver to Landlord an amount equal to ten percent
(10%) of the Qualified Financing Margin (i.e., $30,000.00) within one (1)
business day after the Tenant has received the funding from each Qualified
Financing.
d. No Waiver. Provided Tenant pays the entire March 2009 installment of
Base Annual Rent and each subsequent monthly installment of Base Annual Rent as
and when required under the Lease thereafter, and no other default by Tenant
occurs under the Lease, as amended hereby, Landlord shall not declare Tenant to
be in default with regard to the Deferred Rent, provided that such Deferred Rent
(including all applicable interest and late charges) shall immediately become
due and payable upon the occurrence of a default by Tenant under the Lease, as
amended hereby. Notwithstanding anything to the contrary contained in this
Fourth Amendment, Landlord's agreement to temporarily defer portions of Base
Annual Rent payable by Tenant under the Lease shall not constitute Landlord's
waiver of any rights Landlord may have under the Lease, at law or in equity,
including, without limitation, Landlord's right to charge interest and late
charges on the December Deferred Rent and/or the January/February Deferred Rent
pursuant to Section 3.4 of the Lease, and Landlord hereby reserves the right to
enforce any such rights at any time in the event Tenant fails to perform its
obligations under the Lease or this Fourth Amendment.
2
2. Financial Condition Certification. Together with Tenant's delivery of
its signed counterpart of this Fourth Amendment and continuing on the sixteenth
(16th) day of each subsequent calendar month during the Lease Term, Tenant shall
deliver to Landlord a current cash position setting forth the current value of
Tenant's unrestricted cash and cash equivalents, together with a certificate
signed by Geert Kersten, the chief executive officer of Tenant ("Kersten"), in
substantially the same form as the Officer's Certificate attached as Exhibit "C"
to the Lease, certifying that the information and calculations set forth in the
cash flow analysis are true and accurate in all respects. Tenant's failure to
deliver the required cash flow analysis and related certificate pursuant to this
Section 2 shall constitute a material default under the Lease and shall entitle
Landlord to pursue any and all remedies available to Landlord under the Lease,
at law or in equity.
3. Salary Certification. Together with Tenant's delivery of its signed
counterpart of this Fourth Amendment, Tenant shall deliver to Landlord a
certificate signed by Kersten, setting forth the salaries of those employees and
officers of Tenant that have been either reduced or eliminated by Tenant as of
the date of this Fourth Amendment. In addition, until such time as the entire
balance of Deferred Rent has been repaid in full to Landlord, Tenant shall not
increase the salaries, compensation, and/or distributions (does not include
reimbursements to personnel of reasonable business expenses) made to its current
employees and officers without first obtaining the written consent of Landlord,
which consent may be withheld in Landlord's sole and absolute discretion;
provided, however, that Landlord shall not unreasonably withhold its consent to
any requests reasonably made by Tenant to adjust salaries, compensation and/or
distributions of key personnel of Tenant for purposes of maintaining the core of
Tenant's operating team. In addition and notwithstanding the foregoing, in no
event shall Tenant be required to obtain Landlord's consent to any increases in
salary, compensation and/or distributions to Patti Prichep ("Prichep") so long
as the total monthly salary, compensation and/or distributions do not exceed
$8,000/month in the aggregate. Tenant's failure to abide by the terms of this
Section 3 shall constitute a material default under the Lease and shall entitle
Landlord to pursue any and all remedies available to Landlord under the Lease,
at law or in equity.
4. Construction Rent. Section 1.23(B) of the Work Letter is hereby amended
as follows: the term "(`Construction Rent')" shall be added to the end of the
final sentence to Section 1.23(B) of the Work Letter.
5. Exterior Improvements (Allowance). Landlord and Tenant hereby agree
that Landlord shall not be required to commence any improvements relating to the
Exterior Improvement (Allowance) line item set forth in the final Project Budget
attached as Schedule 1 to the Work Letter (as amended by the Third Amendment),
until the later of (i) January 1, 2010, or (ii) the date on which the Deferred
Rent and all other past due Rent payments, if any, due and payable under the
Lease, have been repaid to Landlord in full.
6. Landlord's Property. Tenant hereby confirms that consistent with the
terms, conditions and intent of the Lease and excepting only the property
associated with the Movable Equipment line item set forth in the Project Budget
attached as Schedule 1 to the Work Letter (as amended by the Third
Amendment)(the "Moveable Equipment"), all of the equipment and property listed
on such Project Budget is, and shall continue to be, the sole and exclusive
property of Landlord (collectively, "Landlord's Property"), and Tenant shall
have no right to assign, hypothecate or otherwise transfer any interests in
Landlord's Property or otherwise encumber or cause any liens to be attached to
Landlord's Property.
3
7. Sublease Rental. Notwithstanding anything to the contrary contained in
the Lease, as amended hereby, including, without limitation, Section 15.5 of the
Original Lease, until such time as all Deferred Rent has been repaid in full to
Landlord, one hundred percent (100%) of all rents and other sums paid to Tenant
under any approved sublease (less any leasing commissions, tenant improvements
and other expenses actually incurred by Tenant and that are directly related to
a subtenant's occupancy of all or any portion of the Premises) shall be
immediately delivered to Landlord and applied to Deferred Rent. It is understood
that 1/3 of the utilities are related to occupancy by the sub tenant. Upon the
repayment to Landlord of all Deferred Rent and provided Tenant is not otherwise
in default under the Lease, as amended hereby, Tenant shall be entitled to
retain fifty percent (50%) of any Profits (as defined in Section 15.5 of the
Original Lease) in connection with any approved sublease pursuant to the terms
and conditions of Section 15.5 of the Original Lease.
8. Lease Authorization. Tenant hereby represents and warrants that (i)
each individual that executed the Lease on behalf of Tenant, and (ii) each
individual executing this Fourth Amendment on behalf of Tenant, was and is duly
authorized to execute and deliver the Lease and this Fourth Amendment on behalf
of Tenant in accordance with a duly adopted resolution of the board of directors
of Tenant. Upon Landlord's written request, Tenant will provide to Landlord a
copy of such resolution authorizing the execution of the Lease and this Fourth
Amendment on behalf of Tenant, which copy of resolution will be duly certified
by the secretary or an assistant secretary of Tenant to be a true copy of a
resolution duly adopted by the board of directors of Tenant, and will otherwise
be in a form reasonably acceptable to Landlord.
9. Broker Representation. Landlord and Tenant represent to one another
that neither party has dealt with any broker nor is any other fee or commission
payable in connection with this Fourth Amendment. Landlord and Tenant shall
indemnify, defend and hold one another harmless from and against any and all
claims, losses and liabilities arising out of, or relating to, a breach by the
indemnifying party of such representation.
10. No Other Amendments. The Lease referred to hereinabove and this Fourth
Amendment constitute the entire agreement by and between Landlord and Tenant and
supercede any other agreement or representation, written or oral, that either
party may hereinafter assert or allege exist, and the Lease, as hereby modified,
remains in full force, except as amended by this Fourth Amendment, and is hereby
ratified and reaffirmed as amended by this Fourth Amendment. From and after the
date hereof, all references to the "Lease" shall refer to the Lease as amended
by this Fourth Amendment.
11. Conflicts. If any conflict between this Fourth Amendment and the Lease
should arise, the terms of this Fourth Amendment shall control.
12. Successor and Assigns. This Fourth Amendment shall be binding upon and
inure to the benefit of the successors and assigns of the respective parties
hereto.
4
13. Counterparts. This Fourth Amendment may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
together constitute a single instrument.
14. Time of the Essence. Time shall be the essence with respect to all
matters under this Fourth Amendment.
[SIGNATURES ON FOLLOWING PAGE]
5
The parties have executed this Fourth Amendment as of the date first written
above.
LANDLORD: TENANT:
VIF II CEL-SCI Partners, LLC, CEL-SCI CORPORATION,
a Delaware limited liability company a Colorado corporation
By: /s/ Stan Wendzel By: /s/ Geert R. Kersten
--------------------------- ---------------------------------
Name: Stan Wendzel Name: Geert R. Kersten
--------------------------- -------------------------------
Title: Manager Title: Chief Executive Officer
--------------------------- ---------------------------------
6
EXHIBIT E
SCHEDULE OF BASE ANNUAL RENTAL
Reimbursement
Base of Tenant Net Base %
Rent Contribution Rent Increase
---- -------------- -------- --------
1. 1,575,000 1,575,000 3.0%
2. 1,622,250 1,622,250 3.0%
3. 1,670,918 1,670,918 3.0%
4. 1,721,045 1,721,045 3.0%
5. 1,772,676 1,772,676 3.0%
6. 1,825,857 (303,228) 1,522,628 (14.1%)
7. 1,880,621 (303,228) 1,577,404 3.6%
8. 1,937,051 (303,228) 1,622,823 3.6%
9. 1,995,163 (303,228) 1,691,935 3.6%
10. 2,055,018 (303,228) 1,751,789 3.5%
11. 2,116,668 (303,228) 1,813,440 3.5%
12. 2,180,168 (303,228) 1,876,940 3.5%
13. 2,245,573 (303,228) 1,942,345 3.5%
14. 2,312,941 (303,228) 2,009,712 3.5%
15. 2,382,329 (303,228) 2,079,101 3.5%
16. 2,453,799 (303,228) 2,150,570 3.4%
17. 2,527,413 (303,228) 2,224,184 3.4%
18. 2,603,235 (303,228) 2,300,007 3.4%
19. 2,681,332 (303,228) 2,378,104 3.4%
20. 2,761,772 (303,228) 2,458,544 3.4%
Initial Rent
- ------------
Basis $15,000,000
Cap Rate 10.5%
Escalation % 3.0%
Reimbursement of Tenant Contribution
- ------------------------------------
Basis 3,150,000
Interest Rate 3.0%
FV at end of year 5 3,659,093
Monthly Reimbursement (25,269)
Check --
LEASE RIDER NO. 1
TENANT INSURANCE RIDER
This Rider to Lease is made as of the 6th day of June, 2007 by and between
VIF II CEL-SCI PARTNERS, LLC, a Delaware limited liability company (hereafter
"Landlord") and CEL-SCI CORPORATION, a Colorado corporation (hereafter
"Tenant"), and forms a part of the Lease Agreement dated the 6th day of June,
2007 between the parties, as well as any and all subsequent amendments, riders
or addenda to that lease, hereafter collectively referred to as the "Lease."
The contents of this Rider to Lease are meant to be incorporated into the Lease,
and where terms of this Rider conflict with these terms within the Lease, the
terms of this Rider shall prevail and govern the Lease.
I. INSURANCE
(a)Coverage. Tenant shall purchase and maintain insurance during the entire
Term of the Lease for the benefit of the Tenant and Landlord (as their
interest may appear) with terms and coverages reasonably satisfactory to
Landlord, and with insurers having a minimum A.M. Best rating of A-/VII,
and with such increases in limits as Landlord may from time to time
reasonably request, but initially Tenant shall maintain the following
coverages in the following amounts:
(i) Commercial General Liability Insurance naming Landlord, Landlord's
management, leasing and development agents and any mortgagees
designated by landlord as additional insureds, with coverage for
Property/operations, personal and advertising injury,
products/completed operations and contractual Liability with
combined single limits of liability of not less than $5,000,000 for
bodily injury and property damage per occurrence.
(ii) Property Insurance covering property damage and business
interruption. Covered property shall include tenant improvements in
the Property, office furniture, trade fixtures, office equipment,
merchandise and all other items of Tenant's property on the
Property. Such insurance shall, with respect only to tenant
improvements, name Landlord, and any mortgagees designated by
Landlord, as additional loss payees as their interests may appear.
Such insurance shall be written on an "all risk" of physical loss or
damage basis including but not limited to the perils of fire,
extended coverage, windstorm, vandalism, malicious mischief,
sprinkler leakage, flood and earthquake, for the full replacement
cost value of the covered items and in amounts that meet any
co-insurance clause of the policies of insurance with a deductible
amount not to exceed $5,000.
(iii) Workers' Compensation Insurance with statutory benefits and
Employers Liability Insurance with the following amounts: Each
Accident - $500,000; Disease - Policy Limit - $500,000; Disease -
Each Employee - $500,000.
Tenant shall, prior to the commencement of the Lease Term and on each
anniversary of the Commencement Date and/or renewal date thereof, furnish
to Landlord certificate(s) evidencing such coverage, which certificate(s)
shall state that such insurance coverage may not be changed or canceled
without at least thirty (30) days prior written notice to Landlord and
Tenant. The insurance maintained by Tenant shall be deemed to be primary
insurance and any insurance maintained by Landlord shall be deemed
secondary thereto.
(b)Avoid Action Increasing Rates. Tenant shall comply with all applicable
laws and ordinances, all orders and decrees of court and all requirements
of other governmental authorities, and shall not, directly or indirectly,
make any use of the Premise which may thereby be prohibited or be
dangerous to person or property or which may jeopardize any insurance
coverage or may increase the cost of insurance or require additional
insurance coverage. If tenant fails to comply with the provisions of this
Section Ib and: (i) any insurance coverage is jeopardized and Tenant fails
to correct such dangerous or prohibited use following notice within the
applicable cure period set forth within the Lease hereof; or (ii)
insurance premiums are increased and Tenant fails, following notice, to
cease such use within the applicable cure period set forth within the
Lease, then in each event such failure shall constitute a Default by
Tenant hereunder and Landlord shall have all of its remedies as set forth
in the Lease.
II. FIRE OR CASUALTY
(a)If the Property or the Building (including machinery or equipment used in
its operation) shall be damaged by fire or other casualty and if such
damage does not cause a termination of this Lease as described in the
following sentences, then Landlord shall repair and restore the damage
with reasonable promptness, subject to reasonable delays for insurance
adjustments and delays caused by matters beyond Landlord's reasonable
control, but Landlord shall not be obligated to expend for repairing or
restoring the damage an amount in excess of the proceeds of insurance
recovered with respect to the damage. If in Landlord's estimate the
Property cannot be restored within three hundred sixty-five (365) days
from the date of such fire or casualty, then Landlord shall give notice to
Tenant of such estimate within one hundred twenty (120) days after such
fire or casualty. Tenant may elect in writing sixty (60) days following
the date of such notice from Landlord to terminate this Lease effective as
of the date of Tenant's notice. If any such damage: (i) renders 25% of the
building untenantable; or (ii) renders general Building systems inoperable
and such systems cannot be repaired in Landlord's reasonable estimate
within three hundred sixty five (365) days from the date of such damage,
or (iii) occurs within the last two (2) Lease years, Landlord shall have
the right to terminate this Lease as of the date of such damage upon
giving written notice to the Tenant at any time within one hundred twenty
(120) days after the date of such damage. Landlord shall have no liability
to Tenant, and Tenant shall not be entitled to terminate this Lease, by
virtue of any delays in completion of such repairs and restoration. Rent,
however, shall abate on those portions of the Property as are, from time
to time, untenantable as a result of such damage.
(b)Notwithstanding anything to the contrary herein set forth, Landlord shall
have no duty pursuant to this Section II to repair or restore any portion
of any alterations, additions, installation or improvements in the
Property or the decorations thereto except to the extent that the proceeds
of the insurance carried by Tenant are timely received by Landlord. If
Tenant desires any other additional repairs or restoration, and if
Landlord consents thereto, it shall be done at Tenant's sole cost and
expense subject to all of the applicable provisions of the Lease. Tenant
acknowledges that Landlord shall be entitled to the full proceeds of any
insurance coverage whether carried by Landlord or Tenant, for damage to
any alterations, addition, installation, improvements or decorations which
would become the Landlord's property upon the termination of the Lease.
III. CONTRACTOR'S AND SUBCONTRACTOR'S INSURANCE
Tenant will require that all parties performing work on or with respect to
the Property, including, without limitation, contractors, subcontractors and
service vendors, maintain insurance coverage at such parties' expense, in the
following minimum amounts:
(a) Workers' Compensation - Statutory amount.
(b) Employer's Liability - $500,000 each accident; $500,000
disease-policy limit; $500,000 disease - each employee.
(c) Automobile Liability - $1,000,000 covering losses due to the
insurer's liability for bodily injury or property damage.
Medical Expenses - $5,000 per person per accident.
Uninsured/Underinsured Motorists' Coverage - $1,000,000.
(d) Commercial General Liability: Bodily injury and property damage -
Per Schedule 1 (construction contractors) or per Schedule 2 (service
contractors).
(e) Excess Liability Coverage - Per Schedule 1 (construction
contractors) or per Schedule 2 (service contractors) or such greater
amount as is needed for the specific job.
(f) Transit Coverage - As needed for the specific job.
The minimum A.M. Best's rating of each insurer is A-/VII. Tenant must
obtain Landlord's written permission to waive any of the above
requirements. Higher amounts may be required by Landlord if the work to be
performed is deemed by Landlord to be hazardous. Tenant will obtain and
keep on file a certificate of insurance which shows that each such party
is so insured. Landlord will be named as an additional insured with
respect to Contractors' and Subcontractors' Auto Liability, Commercial
General Liability and Excess Liability policies. Landlord must obtain
indemnification and hold harmless provisions in favor of Landlord,
Property Manager and Tenant.
LANDLORD: TENANT:
VIF II CEL-SCI Partners, LLC, CEL-SCI CORPORATION,
a Delaware limited liability company a Colorado corporation
By: /s/ Stan Wendzel By: /s/ Geert R. Kersten
--------------------------------- -------------------------------
Name: Stan Wendzel Name: Geert R. Kersten
--------------------------------- -------------------------------
Title: Manager Title: Chief Executive Officer
--------------------------------- -------------------------------
SCHEDULE 1 TO LEASE RIDER NO. 1
CONTRACTOR AND SUBCONTRACTOR INSURANCE LIMIT REQUIREMENTS
Division Trade Description Trade Number for Limits
Required (See Attached)
1. Sitework Earthwork 3
Excavation 5
Grading 2
Paving 2
Piling/Caisson 3
Retention 4
2. Concrete Formwork 5
Precasts 5
Structural 5
3. Masonry Masonry 5
4. Metal And Metal Deck 4
Structural Misc. Metals 2
Structural Steel 5
5. Carpentry Millwork 2
Rough Carpentry 2
Wood Doors 2
6. Moisture Caulking 3
Protection Dampproofing 3
Roofing/Sheet Metal 5
Waterproofing 3
7. Doors, Windows Curtainwall 5
And Glass Glass, Glazing & 3
Aluminum
Hardware 1
Hollow Metal Work 1
8. Finishes Acoustic 2
Ceramic & Quarry 2
Covering 2
Lathe, Plaster & 2
Drywall 2
Resilient Floor 2
Paint & Vinyl Wall
SCHEDULE 1 TO LEASE RIDER NO. 1 (CONT'D)
Division Trade Description Trade Number for Limits
Required (See Attached)
9. Specialties Access Flooring 1
Partitions 1
Toilet Accessories 1
10. Equipment Crane Operations 4
11. Furnishings Suppliers 1
12. Special Asbestos Abatement 5
Construction Blasting 5
13. Conveying Elevators 5
Systems Escalators 5
Conveyers 3
Dumbwaiters 3
14. Mechanical Fire Protection 4
System
Plumbing 4
15. HVAC 5
16. Electrical Electrical 5
17. Demolition More Than 3 Stories 10
3 Stories or Less 5
General Contractor Performing Following 10
Work:
New construction Under 4 Stories and Less Than
150,000 Sq. Ft.
Construction Contract Up to $15,000,000
Renovation Less Than 15% of Existing Structure
General Contractor Major Project 50
Any unusual or specialized renovation or repair work undertaken by the General
Contractor under this contract may require other limits of liability than those
listed above. Owner will make any determination of revised liability limits in
consultation with its risk management staff.
SCHEDULE 1 TO LEASE RIDER NO. 1 (CONT'D)
CONTRACTOR AND SUBCONTRACTOR INSURANCE LIMIT REQUIREMENTS
The following are Limits of Liability required depending on the trade number of
the Contractor:
1. $1,000,000 Each Occurrence
$1,000,000 General Aggregate
$1,000,000 Products & Completed Operations Aggregate
2. $1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
3. $2,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$1,000,000 Umbrella Each Occurrence/Aggregate
OR
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$2,000,000 Umbrella Each Occurrence/Aggregate
4. $2,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$2,000,000 Umbrella Each Occurrence/Aggregate
OR
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$3,000,000 Umbrella Each Occurrence/Aggregate
SCHEDULE 1 TO LEASE RIDER NO. 1 (CONT'D)
5. $2,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$3,000,000 Umbrella Each Occurrence/Aggregate
OR
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$4,000,000 Umbrella Each Occurrence/Aggregate
10. $2,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$8,000,000 Umbrella Each Occurrence/Aggregate
OR
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$9,000,000 Umbrella Each Occurrence/Aggregate
50. $ 2,000,000 Each Occurrence
$ 2,000,000 General Aggregate
$ 2,000,000 Products & Completed Operations Aggregate
$49,000,000 Umbrella Each Occurrence/Aggregate
OR
$ 1,000,000 Each Occurrence
$ 2,000,000 General Aggregate
$ 2,000,000 Products & Completed Operations Aggregate
$50,000,000 Umbrella Each Occurrence/Aggregate
SCHEDULE 2 TO LEASE RIDER NO. 1
SERVICE CONTRACTOR INSURANCE LIMITS REQUIREMENTS
TYPE OF SERVICE NUMBER FOR LIMITS REQUIRED
--------------- --------------------------
Garbage Removal and Disposal including dumpster 2
maintained on Property.
Telephone and T.V. Equipment and Master Wiring and 10 (exterior)
Antennas Service 5 (interior)
Snow Removal Service 2
Sprinkler System Service and Repair 3
Alarm Systems Service and Repair 3
Signage and Light Post Maintenance 2
Landscaping and Lawn Maintenance 1
Electrical Maintenance 1
Parking Surface Maintenance and Striping 1
Asbestos Abatement and Hazardous Material Removal 5
Overhead and Revolving Door Services 2
Interior & Exterior Cleaning and Janitorial 2
Fire Extinguishing in Restaurants 2
Elevator/Escalator Service & Maintenance 5
Window Washing and Swing Station Equipment Services 3
Security & Guard Services 2
SCHEDULE 2 TO LEASE RIDER NO. 1 (CONT'D)
NUMBER FOR LIMITS
TYPE OF SERVICE REQUIRED
--------------- -----------------
Special Events and Call Risk Mgmt. Dept.
Exhibition
Heating, Ventilation and 2
Air Conditioning Service
Plumbing Service 2
Metal Cleaners and 3
Refinishers
Roofers 10
Office Equipment Service 1
SCHEDULE 2 TO LEASE RIDER NO. 1 (CONT'D)
SERVICE CONTRACTOR INSURANCE LIMITS REQUIREMENTS
The following are limits of liability required depending on the trade number of
the Contractor:
1. $1,000,000 Each Occurrence
$1,000,000 General Aggregate
2. $1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
3. $2,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$1,000,000 Umbrella Each Occurrence/Aggregate
OR
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$2,000,000 Umbrella Each Occurrence/Aggregate
4. $2,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$2,000,000 Umbrella Each Occurrence/Aggregate
OR
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$3,000,000 Umbrella Each Occurrence/Aggregate
SCHEDULE 2 TO LEASE RIDER NO. 1 (CONT'D)
5. $2,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$3,000,000 Umbrella Each Occurrence/Aggregate
OR
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$4,000,000 Umbrella Each Occurrence/Aggregate
10. $2,000,000 Each Occurrence
$2,000,000 General Aggregate
$2,000,000 Products & Completed Operations Aggregate
$8,000,000 Umbrella Each Occurrence/Aggregate
OR
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
22,000,000 Products & Completed Operations Aggregate
$9,000,000 Umbrella Each Occurrence/Aggregate