EXHIBIT 10.11
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT ("Lease") is made and entered into this
31st day of March, 1999 by and between JEMAL'S/CAYRE, 6010 EXECUTIVE BLVD L.L.C.
("Landlord"), and INFORMAX, INC. ("Tenant"), upon and in consideration of the
terms, covenants and conditions contained in this Lease and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
W I T N E S S E T H
ARTICLE I - BASIC LEASE INFORMATION AND DEFINITIONS
Section 1.01. The following is a summary of the basic Lease information:
A. Premises: Those portions of the Building located on the tenth floor
as shown on the floor plan attached hereto as Exhibit A.
B. Land: That certain parcel of real property situate, lying and being
in Rockville, Maryland and described on Exhibit B hereto.
C. Project: The Land, Building and all other improvements or other
structures located or constructed, or to be located or constructed, on the Land,
D. Building: The building located on the Land of which the Premises are
a part commonly identified as 6010 Executive Blvd., Rockville, Maryland 20852.
E. Commencement Date: The date on which the Term and the Base Rent and
other amounts payable hereunder shall commence, and which date shall be ninety
(90) days after the Effective Date. The "Effective Date" shall be the date (i)
the Landlord has received a fully executed copy of this Lease and all initial
payments required hereunder from Tenant; and (ii) Landlord has executed and
delivered an executed copy of the Lease to Tenant.
F. Expiration Date: The date which is the last day of the seventh (7th)
Lease Year.
G. Term: The period beginning on the Commencement Date and ending on
the Expiration Date, unless earlier terminated as provided herein.
H. Net Rentable Area of the Premises: Approximately Twelve Thousand Six
Hundred Twenty Four (12,624) square feet, including core factor, on the tenth
floor of the Building, which actual amount will be determined by a measurement
by the Project's Architect using the Washington Commercial Association of
Realtors, Inc. Standard Method of Measurement. The determination of Net Rentable
Area shall be subject to verification by Tenant's architect.
I. Tenant's Pro Rata Share: The percentage representing a fraction, the
numerator of which is the Net Rentable Area of the Premises and the denominator
of which is the Net Rentable Area of the office space located in the Building,
excluding basement areas.
J. Lease Year: The twelve (12) month period following the Commencement
Date if the Commencement Date falls on the first day of a month or, if it does
not, then the twelve (12) month period following the first day of the first full
month after the Commencement Date, and each subsequent twelve (12) month period.
K. Rent: Base Rent and Additional Rent.
L. Base Rent: The initial Base Rent for the first Lease Year shall be
Twenty Four and 25/100 Dollars ($24.25) multiplied by the Net Rentable Area of
the Premises. If the Commencement Date is not the first day of a month, then
additional Base Rent for the period.
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from the Commencement Date to the first day of the first Lease Year shall be
payable on a pro-rata basis for the number of days covered by such period.
M. Permitted Use: General office purposes.
N. Broker: The Bank Companies.
ARTICLE II - PREMISES AND QUIET ENJOYMENT
Section 2.01. Premises. Landlord hereby leases and demises to Tenant, and Tenant
hereby leases and rents from Landlord, the Premises for the Term, together with
the right to use in common with others the Common Areas designated by Landlord,
subject to all of the terms, covenants, and conditions contained herein. The
exterior walls, floor and ceiling and the area above and beneath the Premises
are not demised hereunder, and the use thereof, together with the right to
install, maintain, use, repair and replace pipes, ducts, conduits, wires,
tunnels, sewers and structural elements leading through the Premises in
locations which will not materially interfere with Tenant's use thereof and
serving other parts of the Project are hereby reserved to Landlord.
Section 2.02. Quiet Enjoyment. Provided that Tenant fully and timely performs
all the terms of this Lease on Tenant's part to be performed, including payment
by Tenant of all Rent, Tenant shall peaceably and quietly have, hold and enjoy
the Premises during the Term without hindrance, disturbance or molestation from
or by Landlord.
ARTICLE III - PARKING
Section 3.01. Parking Permits. Landlord agrees to make available to Tenant and
its employees thirty-two (32) parking permits (based on 2.5 permits per 1,000
square feet) for the parking of standard-sized passenger automobiles in the
designated parking areas for the Building (the "Parking Areas"), which spaces
(except as provided below) shall not be designated, unless otherwise determined
by Landlord in its sole discretion. The charge for such permits shall be the
prevailing market rate for such spaces, which rate is now Fifty-Five Dollars
($55.00) per month, per permit, subject to reasonable annual adjustments
("Parking Fees"). All Parking Fees due hereunder shall be deemed Additional
Rent, provided that Parking Fees shall be due and payable with each installment
of Base Rent. If Tenant does not elect at the outset of the Lease to take all
the permits, Landlord shall be free to lease any available spaces to other
tenants. If available, Tenant may thereafter lease additional spaces on a month
to month basis at the rate provided herein. Notwithstanding the foregoing,
Landlord shall designate three (3) spaces in the Parking Area for the exclusive
use of Tenant, and the Parking Fees for three (3) of the thirty-two (32) permits
to be issued hereunder by Landlord shall be $100.00 per month, subject to
reasonable adjustments consistent with any increases for the other Parking Fees.
Section 3.02 Parking Rules. Landlord reserves the right to institute either a
valet parking, self parking, or any other parking system it may deem advisable.
Tenant and its employees shall observe reasonable safety precautions in the use
of the Parking Area and shall at all times abide by all rules and regulations
governing the use of the Parking Areas reasonably promulgated by Landlord or any
operator. The Parking Area will remain open seven (7) days a week, 24 hours per
day. Neither Tenant nor its employees may work on or repair any car or other
vehicle in the parking areas for the Building, nor shall they interfere or
disrupt the traffic flow, or use of common areas with loading or unloading
delivery vans, trucks, carts, or vehicles of any sort. Landlord shall have the
right to tow or have towed any vehicle owned and/or operated by Tenant or its
personnel which violates the parking covenants without written notice to the
owner of such vehicle, and Tenant and/or the owner of such vehicle shall be
responsible for and agree to pay upon demand all towing and storage charges.
Tenant shall not use the parking area for overnight parking or storage of
service vehicles.
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Section 3.03. Injury or Damage on Parking Area. Landlord does not assume any
responsibility, and shall not be held liable, for any damage or loss to any
automobile or personal property in or about the Parking Area, or for any injury
sustained by any person in or about the Parking Area, unless such injury or
damage was caused by the gross negligence or willful misconduct of Landlord, or
its employees.
ARTICLE IV - IMPROVEMENTS
Section 4.01. Allowance for Tenant's Improvements. Landlord will provide Tenant
with a Twenty-Five and 00/100 Dollar ($25.00) per rentable square food build-out
allowance (the "Allowance") above existing conditions at the Premises for the
construction of the improvements to the Premises necessary for Tenant's
occupancy (the "Tenant's Improvements"), and all other related costs relating to
Tenant's tenancy of the Premises, including, but not limited to, architectural
and design fees, wiring and cabling expenses, and the costs of fixtures and
equipment and moving and related expenses. Tenant shall use at least 90% of the
Allowance for the hard costs of construction, to include architectural fees,
equipment and fixtures, and moving related expenses. Tenant shall be wholly
responsible for the payment of all costs in excess of the Allowance, and
Landlord shall have no liability to make any payments in excess of the Allowance
to the "Contractor" or any other party in connection with the Tenant's
Improvements, unless otherwise provided herein. Any savings from the Allowance,
but in no event more than 10% of the Allowance, may be applied to rental
payments due under this Lease, as they accrue.
Section 4.02. Design/Plans. Tenant, at Tenant's expense (subject, as applicable,
to Landlord's obligation to fund the Allowance), will supply all engineering
working drawings including mechanical, electrical, and plumbing working drawings
as required for the permitting and construction of the Premises (the "MEP's").
Tenant shall contract for the preparation of plans and finishes, including
mechanical and architectural drawings required for permitting, with a firm
selected by Tenant. All plans and MEP's shall be subject to the approval of
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed (Landlord shall review and review or reject with reasons all submitted
plans within five (5) business days of submission).
Section 4.03. Construction of Improvements. Tenant will select a contractor to
construct the Tenant's Improvements (the "Contractor"), subject to Landlord's
approval, not to be unreasonably withheld, conditioned or delayed. Tenant shall
contract with the Contractor to complete the Tenant's Improvements, and Tenant
shall be wholly responsible for the payment of all amounts payable to the
Contractor, subject to the payment of the Allowance by Landlord as set forth
above. Tenant shall be responsible for ensuring that all construction is
undertaken in a good and workmanlike manner, and in accordance with applicable
legal requirements and in substantial accordance with approved plans and
specifications. Tenant shall also ensure that its Contractor obtains appropriate
insurance coverages prior to the commencement of the Tenant's Improvements. All
payments shall be subject to Contractor delivering lien releases and invoices
for all completed work and materials in place, and Landlord's inspection of the
work to ensure that the conditions for payment have been fulfilled, which
inspection Landlord shall complete within three (3) business days of request for
payment. Landlord may make payments directly to Contractor, or jointly to
Contractor and Tenant.
Section 4.04. Schedule. To ensure the timely completion of the Tenant's
Improvements, the parties shall use their best efforts to comply with the time
schedule set forth on Exhibit E for the design and construction process.
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ARTICLE V - COMMENCEMENT DATE; DELIVERY OF POSSESSION
Section 5.01. Commencement Date. The Commencement Date shall the earlier of one
hundred twenty (120) days after the Effective Date, or the substantial
completion of the Premises sufficient to permit Tenant to occupy the Premises
for its intended use.
Section 5.02. Commencement Notice. When the Commencement Date has been
determined by Landlord, Landlord and Tenant shall execute a Commencement Notice
in the form of Exhibit C; provided, however, that the failure of Landlord to
prepare and present the Commencement Notice to Tenant, or either party's failure
to execute the same, shall not affect the Commencement Date or the party's
rights and obligations under the terms of this Lease.
Section 5.03. Entry by Tenant. Except for entry in connection with the
completion of the Tenant's Improvements, Tenant may not enter or occupy the
Premises prior to the Commencement Date without Landlord's express written
consent. Tenant shall be permitted access to the Premises twenty (20) days prior
to the Commencement Date for the purpose of installing wiring, cabling,
telecommunications equipment, furniture and other similar items necessary for
Tenant to conduct its business.
Section 5.04. Occupancy. Occupancy of the Premises or any portion thereof by
Tenant for the conduct of Tenant's business therein shall be conclusive evidence
that Tenant has accepted the Premises and the remainder of the Project as
suitable in their then current condition (subject to completion of any punch
list items and latent defects discovered within one year from the Commencement
Date). Entry by the Tenant's contractors and agents for the construction and
installation purposes provided herein shall not be deemed occupancy by Tenant.
ARTICLE VI - RENT
Section 6.01. Base Rent. Tenant hereby covenants and agrees to pay to Landlord
annually during the Term, Base Rent, in equal monthly installments ("Rent
Installments"), in advance, on the first day of each calendar month during the
Term. The Base Rent for the first Lease Year shall be Twenty Four and 25/100
Dollars ($24.25) multiplied by the Net Rentable Area of the Premises, subject to
adjustment as set forth in Section 6.02 below. The first month's Base Rent shall
be due thirty (30) days prior to the anticipated Commencement Date, but in no
event later than ninety (90) days from the Effective Date. If a final
measurement of the Premises has not yet been completed by such date, then for
purposes of making such payment, the first Rent Installment shall be deemed to
be $25,511.00 based upon Twelve Thousand Six Hundred Twenty Four (12,624) square
feet of Net Rentable Area. (If the Net Rentable Area is determined to be less or
more than 12,624 square feet, an appropriate additional payment shall be made,
or credit given, on the due date for the first Rent Installment due after the
Commencement Date). If the Commencement Date is not on the first day of the
month, then Tenant shall pay to Landlord for such month a pro-rata share of the
Rent Installation for the period between the Commencement Date and the first day
of the first Lease Year.
Section 6.02. Base Rent Escalation. On the first (1st) day of each new Lease
Year during the Term of this Lease beginning with and including the second Lease
year (each of such dates being hereinafter referred to as an "Adjustment Date")
the annual Base Rent shall be increased and shall be equal to 1.03 times the
Base Rent in effect during the immediately preceding Lease Year (disregarding
any rental abatement or other reduction in Base Rent during any such preceding
Lease Year, if any). The new monthly Rent Installment of Base Rent, as adjusted,
shall be due and payable as of such Adjustment Date on the first (1st) day of
each month thereafter until the next Adjustment Date or the end of the Term of
this Lease, whichever is applicable.
Section 6.03. Definitions and Payments. All sums of money or charges required to
be paid by Tenant under this Lease other than Base Rent shall be deemed
Additional Rent hereunder and all remedies applicable to the non-payment of Base
Rent shall be applicable thereto. All
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Rent shall be paid without prior notice or demand therefor, and without any
counterclaim, set-off, deduction, recoupment, credit or defense whatsoever, it
being understood and agreed that Tenant's covenant to pay the Rent is hereby
deemed to be, and shall be, independent of the obligations of Landlord
hereunder. Any Additional Rent that relates to any default by Tenant shall be
deemed payable on the first day of the month next following such default except
as otherwise provided in this Lease. No payment by Tenant or receipt by Landlord
of a lesser amount than the amount then due shall be deemed to be other than on
account of the earliest amount of such obligation then due. No endorsement or
statement on any check or letter or other communication accompanying a check for
payment of any Rent shall be deemed an accord and satisfaction. No receipt
and/or acceptance by Landlord of any sums shall be deemed a waiver of any
default by Tenant. All Rent shall be payable at the Landlord's office specified
in Section 21.01 below.
Section 6.04. Late Payment Charges. Tenant shall pay a late charge of five
percent (5%) of the amount of any installment of Rent not paid within seven (7)
days of the due date, provided on the first late payment during each Lease Year
this fee will be waived if the Rent Installment is paid within five (5) days of
written notice that the Rent Installment is past due A $75.00 charge will be
payable by Tenant for each dishonored check received by Landlord from Tenant.
Notwithstanding the foregoing, the Landlord shall waive the late charge on the
first occurrence of a late payment during each Lease Year, provided Tenant makes
the required payment within three (3) days of written notice of non-payment for
such first occurrence.
ARTICLE VII - DEPOSIT
Section 7.01. Security Deposit. Upon execution of this Lease, Tenant shall
deposit with Landlord the sum of Twenty Five Thousand Five Hundred Eleven and
00/100 Dollars ($25,511.00) (the "Deposit") to be held as security for Tenant's
performance of the covenants contained herein. Tenant's obligation to pay
Landlord the Deposit shall be in addition to Tenant's obligation to pay Landlord
the first month's Base Rent, as set forth in subsection 6.01 above. Landlord may
commingle the Deposit with other funds, and will return the Deposit to Tenant,
without interest, within ten (10) days following the Expiration Date; provided
that in the event the Tenant fails to perform any or all of its obligations
under this Lease, Landlord may apply all or any portion of the Deposit against
the damages sustained by Landlord as a result thereof, whereupon, Tenant shall
pay Landlord the amount so applied so that the Deposit shall be restored to its
full amount as specified above.
ARTICLE VIII - SERVICES OF LANDLORD
Section 8.01. Services.
A. Provided Tenant is not in default under the terms of this Lease,
during the Term Landlord shall furnish Tenant with the following services and
facilities: (i) heat and/or air conditioning Monday through Friday, 8:00 a.m. -
6:00 p.m., and Saturday, 9:00 a.m. - 1:00 p.m., exclusive of holidays; (ii)
electric current, water, public lavatory facilities and supplies; and (iii)
janitorial services, including trash removal, after working hours, excepting
weekends and holidays, and (iv) elevator service, seven (7) days a week, 24
hours per day.
B. If Tenant requires air-conditioning, heating or other services,
including cleaning services, routinely supplied by Landlord for hours or days in
addition to the hours and days specified in Section 8.01 A, Landlord, at
Tenant's sole expense, shall make reasonable efforts to provide such additional
service after reasonable prior written request therefor from Tenant, and Tenant
shall reimburse Landlord for all actual direct expenses incurred in connection
with such additional services.
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C. If Tenant's requirements for or consumption of electricity is
excessive, Landlord shall, at Tenant's expense, make reasonable efforts to
supply such service through the then existing feeders and risers serving the
Building and the Premises and shall bill Tenant periodically for such additional
service.
Section 8.02. Utility Suppliers. Landlord's obligation to furnish utility
services shall be subject to the rules and regulations of the supplier of such
utility services and the rules and regulations of any municipal or other
governmental authority regulating the business of providing utility services.
Section 8.03. Abatement. Notwithstanding the other provisions of this Lease, in
the event that electrical, utility or other services to be provided by Landlord
pursuant to this Lease are not provided to the Premises and shall render any
portion of all the Premises inaccessible or unusable for the normal conduct of
Tenant's business for five (5) consecutive business days or more, than all Base
Rent and Additional Rent payable hereunder with respect to such portion of the
Premises which Tenant is not able to occupy shall be abated and such abatement
shall continue until full use of such portion of the Premises is restored to
Tenant. The foregoing provision shall not apply to a cessation of services
associated with a casualty covered by the provisions of Article XIV of this
Lease.
ARTICLE IX - OPERATING CHARGES
Section 9.01. Operating Charge Payment. Tenant shall pay as Additional Rent
Tenant's Pro-Rata Share of the amount by which Operating Charges (as defined
below) during each calendar year (or part thereof) within the Lease Term
(including any extensions) exceed a base amount (the "Operating Charges Base
Amount") equal to the Operating Charges incurred during the Operating Charges
Base Year. The Operating Charges Base Year shall be calendar year 1999.
Section 9.02. Definition of Operating Charges. "Operating Charges" shall mean
the sum of the expenses incurred by Landlord in the ownership and operation of
the Project, including: (1) electricity, gas, water, sewer and other utility
charges of every type and nature; (2) premiums and other charges for insurance
relating to the Project; (3) management fees and personnel costs of the Project;
(4) costs of service and maintenance contracts; (5) maintenance and repair
expenses and supplies which are deducted by Landlord in computing its federal
income tax liability; (6) depreciation for capital expenditures made by Landlord
to reduce operating expenses if Landlord reasonably estimates that the annual
reduction in operating expenses shall exceed such depreciation or to comply with
legal requirements imposed after the Lease Commencement Date; (7) charges for
janitorial, char and other cleaning services and supplies furnished to the
Project, and the tenants at the Project; (8) All Taxes (as hereinafter defined);
(9) any business, professional and occupational license tax payable by Landlord
with respect to the Project; (10) reasonable reserves for replacements, repairs
and contingencies, and (11) any other expense incurred by Landlord in
maintaining, repairing or operating the Project. Notwithstanding anything in
this Lease to the contrary, Operating Charges shall not include: (A) any tenant
work performed or alteration of space leased to Tenant or other tenants or
occupants of the Building; (B) costs incurred by Landlord for alterations which
are considered capital improvements and replacements under generally accepted
accounting principles, except to the extent such cost are included in Operating
Charges pursuant to clause (6) above; (C) interest and amortization of
indebtedness or ground rent with respect to the Project; (D) leasing and
brokerage commissions; (E) any cost or expense for which Landlord receives
reimbursement directly from Tenant or a third party (including any insurance
company), to the extent of the reimbursement received by Landlord; (F) the cost
of any repair made by the Landlord because of the total or partial destruction
of the Building or the condemnation of a portion of the Building; (G) the cost
of marketing and leasing the Building (H) reserves for repairs, maintenance and
replacements; (I) amounts paid to any partners, shareholder, officer or director
of Landlord, for salary or other compensation; (J) expenses for repairs,
replacements or improvements arising from the initial construction of the
building to the extent such expenses are either (i) reimbursed to Landlord by
virtue of
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warranties from contractors or suppliers or (ii) result by reason of
deficiencies in design or workmanship; (K) any amounts paid to any person, firm
or corporation related or otherwise affiliated with Landlord or any general
partner, officer or director of Landlord or any of its general partners, to the
extent same exceeds arms-length competitive prices paid in Washington, D.C. for
the services or goods provided; (L) costs of repairs incurred by reason of fire
or other casualty or condemnation to the extent Landlord receives compensation
therefore through proceeds of insurance or condemnation awards; (M) costs of
renovating or otherwise improving space for new tenants or in renovating space
vacated by any tenant or any other similar work which Landlord performs for any
tenant; (N) costs relating to maintaining Landlord's existence, either as a
corporation, partnership, or other entity, such as trustee's fees, annual fees,
partnership organization or administration expenses, deed recordation expenses,
legal and accounting fees (other than with respect to building operations), (O)
interest or penalties arising by reason of Landlord's failure to timely pay any
Operating Expenses; (P) costs incurred for maintenance of any retail areas of
the building, or compensation paid to clerks, attendants, sales persons or other
persons on or in commercial concessions operated in the building; (Q) costs
incurred to remove any hazardous or toxic wastes, materials or substances from
either the building or land; (R) depreciation of the building or any equipment,
machinery, fixtures or improvements therein; (S) the costs of any "tap fees" or
one time lump sum sewer or water connection fees for the building; (T)
Landlord's general corporate overhead and general and administrative expenses;
(U) costs directly resulting from the negligence or willful misconduct of
Landlord or its agents, contractors or employees; (V) salaries, wages, or other
compensation paid to employees of any property management organization being
paid a fee by Landlord for its services (or to any employees of Landlord who are
not assigned to the operation, management, maintenance or repair of the building
on a full time basis, including accounting or clerical personnel and other
overhead expenses of Landlord); (W) accounting or legal fees other than those
incurred in connection with reducing or attempting to reduce Operating Expenses
or Taxes, or in the normal operation of the Building; (X) costs incurred to
remedy, repair or otherwise correct any defects or violations of the building,
or by reason of any changes in governmental laws, rules or regulations which
were in effect prior to the commencement of the Lease Term; (Y) principal
interest of mortgage payments; (Z) expenses and costs not normally, in
accordance with generally accepted accounting principles, included by landlords
of first-class institutional office buildings, or that are not competitive or
not prudent in view of the goods and services obtained for such expenses or
costs; (AA) The rent for Landlord's on-site management or leasing office, or any
other offices or spaces of Landlord or any related entity; (BB) Increased
insurance premiums caused by Landlord's or any other tenants hazardous acts.
Section 9.03. Adjustments for Occupancy. If the average occupancy rate for the
Building during any calendar year (including 1999) is less than ninety-five
percent (95%), or if any tenant is separately paying for services furnished to
its premises, then Operating Charges for such calendar year shall be deemed to
include all additional expenses, as reasonably estimated by Landlord, which
would have been incurred during such Lease Year if such average occupancy rate
had been ninety five percent (95%) and if Landlord paid for the services
separately paid by such tenant.
Section 9.04. Payment. Tenant shall make estimated monthly payments to Landlord
on account of the amount by which Operating Charges that are expected to be
incurred during each calendar year would exceed the Operating Charges Base
Amount. At the beginning of the Lease Term and at the beginning of each new
calendar year thereafter, Landlord may submit a statement setting forth
Landlord's reasonable estimates of such excess and Tenant's Pro Rata Share
thereof. Tenant shall pay to Landlord on the first day of each month following
receipt of such statement, until Tenant's receipt of the succeeding annual
statement, an amount equal to one-twelfth (1/12) of such share (estimated on an
annual basis). From time to time during any calendar year, Landlord may revise
Landlord's estimate and adjust Tenant's monthly payments to reflect Landlord's
revised estimate. Within approximately one hundred twenty (120) days after the
end of each calendar year, Landlord shall submit a statement showing (1)
Tenant's proportionate share of the amount by which Operating Charges incurred
during the preceding calendar year exceeded the Operating Charges Base Amount,
and (2) the aggregate amount of Tenant's estimated payments during such year. If
such statement indicates that the aggregate amount of such estimated payments
exceeds Tenant's actual liability, then Landlord shall pay the excess to Tenant
prior to Tenant's next due date for installments of Base Rent. If such statement
indicates that Tenant's actual liability exceeds the aggregate amount of such
estimated payments, then Tenant shall pay the amount of such excess as
additional rent."
Section 9.05 Taxes. For purposes hereof, the term "Taxes" shall mean (i) all
taxes, assessments, and other governmental charges, applicable to or assessed
against the Project or any portion thereof, or
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applicable to or assessed against Landlord's personal property used in
connection therewith, whether Federal, state, country, or municipal and whether
assessed by taxing districts or authorities presently taxing the Project or the
operation thereof or by other taxing authorities subsequently created, or
otherwise, and (ii) any reasonable expenses incurred by Landlord in contesting
any taxes or the assessed valuation of all or any part of the Project. If at any
time during the Term Landlord shall be required to pay any charge which is based
upon rents from the Project, or the transactions represented by leases or the
occupancy or use of the Project, such charges shall be deemed to be Taxes,
provided, however, that Taxes shall not include any (i) franchise, corporation,
income or net profits tax, unless substituted for real estate taxes or imposed
as additional charges in connection with the ownership of the Project, which may
be assessed against Landlord or the Project or both, (ii) gift, excise, capital
stock, estate, succession, inheritance or transfer taxes assessed against
Landlord or the Project or both, (iii) personal property taxes of Tenant or
other tenants in the Project, and (iv) penalties or interest for late payment of
Taxes.
Section 9.06. Special Allocations. Notwithstanding anything herein to the
contrary, any costs and expenses in the nature of Operating Charges incurred by
Landlord which relate solely to the Premises, or to the Premises and other
portions of, but not substantially all of the Building, shall be specially
allocated and billed to the Tenant, and or to the Tenant and other tenants of
the Building for whom such services benefit or such costs are incurred,
proportionately based on Net Rentable Area, and shall be paid by Tenant in the
same manner as "Operating Charges". Any amounts specially billed hereunder shall
not be included when computing "Operating Charges" under Section 9.02.
ARTICLE X - ALTERATIONS
Section 10.01. Alterations. Tenant shall have the right to make strictly
decorative alterations or to rearrange trade fixtures without obtaining
Landlord's prior consent. Tenant shall not make or cause to be made any
structural, exterior, mechanical, electrical or plumbing alterations, repairs,
additions or improvements in or to the Premises without Landlord's prior written
consent, which consent may be withheld in Landlord's sole discretion. Tenant
shall have the right to make all other types of alterations upon receipt of
Landlord's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed. All of the foregoing alterations which require
Landlord's prior written consent are hereinafter collectively referred to as
"Improvements."
Section 10.02. Mechanic's Liens. In the event that any mechanic's lien is filed
against the Premises or the Project as a result of any services or labor
provided, or materials furnished, by or on Tenant's behalf, or claimed to have
been provided by or on Tenant's behalf, Tenant shall (i) immediately notify
Landlord of such lien, and (ii) within twenty (20) calendar days after the
filing of any such lien, discharge and cancel such lien of record by payment or
bonding in accordance with the laws of the state of Maryland, all at Tenant's
sole cost and expense; provided that such time period shall be reasonably
extended if Tenant is in good faith a bond or other method of payment.
Section 10.03. Removal. All leasehold improvements (including the Improvements,
if any), alterations and other physical additions made to the Premises shall be
Landlord's property and shall not be removed from the Premises unless Tenant
receives prior written notice from Landlord. Notwithstanding the foregoing, upon
the expiration or earlier termination of this Lease, Tenant shall, at Tenant's
expense, remove any of the foregoing items from the Premises if Landlord gives
Tenant written notice to do so. Tenant shall promptly repair or reimburse
Landlord for the cost of repairing all damage done to the Premises by such
removal.
ARTICLE XI - REPAIRS
Section 11.01. Maintenance and Repair. Tenant, at its sole cost and expense,
shall promptly make all repairs, perform all maintenance, and make all
replacements in and to the Premises that are necessary or desirable to keep the
Premises in first class condition and repair, in a safe and tenantable
condition, and otherwise in accordance with all applicable laws and regulations
and the requirements of this Lease. Tenant shall give Landlord prompt notice of
any defects or damage to the structure of, or equipment or fixtures in, the
Building and the Premises. Tenant shall maintain all fixtures, furnishings and
equipment located in, or exclusively serving, the Premises in clean, safe and
sanitary condition, shall take good care thereof and make all required repairs
and replacements thereto. Tenant shall suffer no waste or injury to any part of
the Premises, and shall, at the expiration or earlier termination of the Lease
Term, surrender the Premises in an order and condition equal to or better than
their order and condition on the Lease Commencement Date, ordinary wear and tear
excepted.
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Except as otherwise provided in Article XIV, all injury, breakage and damage to
the Premises and to any other part of the Building or the Land caused by any act
or omission of any invitee, agent, employee, subtenant, assignee, contractor,
client, family member, licensee, customer or guest of Tenant (collectively,
"Invitees") or Tenant, shall be repaired by and at Tenant's expense, except that
Landlord shall have the right at Landlord's option to make any such repair and
to charge Tenant for all costs and expenses incurred in connection therewith.
Notwithstanding anything herein to the contrary, the cost of
maintaining and repairing the heating, air conditioning and other mechanical and
lighting systems serving the Premises, and the structural components of the
Building, and the common areas of the Project, shall be the responsibility of
Landlord, unless the necessity for repair was caused by the actions of Tenant,
or its Invitees.
ARTICLE XII - CONDUCT OF BUSINESS BY TENANT
Section 12.01. Use of Premises. Tenant shall use and occupy the Premises during
the Term solely for the Permitted Use and for no other purpose. Tenant
specifically agrees that the Premises shall not be used for the storage of
personal property unless expressly permitted by the terms of this Lease, or for
any residential purposes. If any governmental licenses or permits shall be
required for the proper and lawful conduct of Tenant's business in the Building,
then Tenant shall procure and maintain same at Tenant's expense.
Section 12.02 Operation of Business. Tenant shall pay before delinquency, any
and all taxes, assessments and public charges levied, assessed or imposed upon
Tenant's business, Tenant's leasehold interest or upon Tenant's fixtures,
furnishings or equipment in the Premises, and pay when due all such license
fees, permit fees and charges of a similar nature for the conduct by Tenant or
any subtenant. Tenant shall observe the Rules and Regulations attached hereto as
Exhibit D and all other reasonable rules and regulations established by Landlord
from time to time, provided Tenant shall be given reasonable notice thereof.
Section 12.03. Care of Premises. Tenant shall keep the Premises (including the
Tenant's Improvements, if any) in good order and in a safe, neat and clean
condition. Tenant shall not move any safe, heavy machinery, heavy equipment, or
fixtures into or out of Premises without Landlord's prior written consent, which
shall not be unreasonably withheld, delayed or conditioned. Tenant agrees that
it will not place a load on the floor exceeding the floor load per square foot
which such floor was designed to carry.
Section 12.04. Signage. Landlord at its expense shall (i) add Tenant's name to
the Building's lobby directory and (ii) place Tenant's name on the suite entry
to the Premises. Tenant shall not install or maintain any sign on the Project;
provided, however, Tenant may display signs inside the Premises which are not
visible outside the Premises.
Section 12.05. Legal Requirements. Tenant shall, at its own expense, comply with
all laws, orders, ordinances and regulations of Federal, state and local
authorities and with directions of public rules, recommendations, requirements
and regulations respecting all matters of occupancy, condition or maintenance of
the Premises, whether such orders or directions shall be directed to Tenant or
Landlord. Wherever the term "legal requirements" appears in this Lease, such
term shall be deemed to be, and include, the requirements hereinabove set forth.
ARTICLE XIII - INSURANCE AND INDEMNITY
Section 13.01. Insurance to be Procured by Landlord. Landlord agrees, during the
Term hereof, to obtain and maintain in effect at all times, fire and extended
coverage insurance (or broader insurance coverage) insuring the Building. Such
insurance shall be issued by an insurance company licensed to do business in the
state of Maryland.
Section 13.02. Insurance to be Procured by Tenant. Tenant, at Tenant's sole cost
and expense, shall obtain and maintain in effect at all times during the Term of
this Lease, policies providing for the following coverage:
A. Property Insurance. Fire and extended coverage insurance relating to
all improvements, fixtures and personalty of Tenant upon the Demised Premises in
an amount equal to
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ninety percent (90%) of the replacement value of such improvements, in such form
and amount and covering such insurable hazards as Landlord or Landlord's
mortgagee may from time to time require.
B. Liability Insurance. A policy of commercial general liability
insurance, naming Landlord and any mortgagee of the Project as additional
insureds, protecting against any liability occasioned by any occurrence on or
about any part of the Project or the Premises, and containing contractual
liability coverage, with such policies to be in the minimum amount of Two
Million and No/100 Dollars ($2,000,000.00), combined single limit, written on an
occurrence basis. In the event that it becomes customary for a significant
number of tenants of commercial office buildings in the area to be required to
provide liability insurance policies to their landlords with coverage limits
higher than the foregoing limits, then Tenant shall be required on demand of
Landlord to obtain insurance policies the limits of which are not less than the
then customary limits.
C. Tenant's Worker's Compensation Insurance. A policy of worker's
compensation or similar insurance affording statutory coverage and containing
statutory limits as required under the local worker's compensation or similar
statutes.
D. Builder's Risk Insurance. If Tenant undertakes alterations, a policy
of builder's risk insurance on an "All Risk" or "Special Loss" basis (including
collapse) on a completed value (non-reporting) form for full replacement value
covering all work incorporated in the Premises and all materials and equipment
in or about the Premises performed by Tenant for which builder's risk insurance
would customarily be obtained.
E. Contractor's Liability Insurance. If Tenant undertakes any
Improvements, Tenant shall require any contractor performing work on the
Premises to carry and maintain, at no expense to Landlord, a non-deductible (i)
comprehensive general liability insurance policy, which shall include
contractor's liability coverage, contractual liability coverage, completed
operations coverage, a broad form property damage endorsement and contractor's
protective liability coverage to afford protection with limits, for each
occurrence, of not less than One Million Dollars ($1,000,000) combined single
limit, written on an occurrence basis; and (ii) worker's compensation or similar
insurance policy in form and amounts required by law.
Section 13.03. General Provisions. All insurance policies procured by Tenant
shall (i) be issued by good and solvent insurance companies licensed to do
business in the state of Maryland and having a Best's Rating of A.XII or better;
(ii) be written as primary policy coverage and not contributing with or in
excess of any coverage which Landlord may carry; (iii) insure and name Landlord
and any mortgagee of the Project as additional insureds as their respective
interests may appear; all such policies shall contain a provision that although
Landlord and such mortgagees are named insureds, Landlord and such mortgagees
shall nevertheless be entitled to recover under said policies for any loss,
injury or damage to Landlord, such mortgagees or their servants, agents and
employees by reason of the act or negligence of Tenant; and (iv) shall contain
an express waiver of any right of subrogation by the insurance company against
Landlord or Landlord's agents and employees. Neither the issuance of any
insurance policy required hereunder, nor the minimum limits specified herein
with respect to Tenant's insurance coverage, shall be deemed to limit or
restrict in any way Tenant's liability arising under or out of this Lease. With
respect to each and every one of the insurance policies herein required to be
procured by Tenant, on or before the Commencement Date and before any such
insurance policy shall expire, Tenant shall deliver to Landlord a duplicate
original, a certified copy or a certificate of insurance of each such policy or
renewal thereof, as the case may be, together with evidence of payment of all
applicable premiums. Each and every insurance policy required to be carried
hereunder by or on behalf of Tenant shall provide (and any certificate
evidencing the existence of each such insurance policy shall certify) that,
unless Landlord shall first have been given thirty (30) days prior written
notice thereof: (i) such insurance policy shall not be canceled and shall
continue in full force and effect, (ii) the insurance carrier shall not, for any
reason whatsoever, fail to renew such insurance policy, and (iii) no material
changes may be made in such insurance policy. The term "insurance policy" as
used herein shall be deemed to include any extensions or renewals of such
insurance policy. In the event that Tenant shall fail promptly to furnish any
insurance coverage hereunder required to be procured by Tenant, Landlord, at its
sole option, shall have the right to obtain the same and pay the premium
therefor for a period not exceeding one (1) year in each instance, and the
premium so paid by Landlord shall be immediately payable by Tenant to Landlord
as Additional Rent.
Section 13.04. Insurance Requirements. Tenant shall not do or permit to be done
any act or thing upon the Premises that will invalidate or be in conflict with
fire insurance policies covering the Project or any part thereof, or any other
insurance policies or coverage referred to above in this section; and
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Tenant shall promptly comply with all rules, orders, regulations, or
requirements, of the Insurance Services Office having jurisdiction over the
Building, or any similar body, in the case of such fire insurance policies, and
shall not do, or permit anything to be done, in or upon the Premises, or bring
or keep anything therein, which shall increase the rate of fire insurance on the
Project or on any property located therein, or increase the rate or rates of any
other insurance referred to hereinabove applicable to the Project or any portion
thereof. Tenant shall reimburse Landlord on demand as Additional Rent for that
part of all premiums for any insurance coverage that shall have been charged
because of the violation by Tenant of the foregoing provisions, to the extent
not cured by Tenant, during applicable cure periods.
Section 13.05. Indemnification. Tenant hereby waives all claims against Landlord
for damage to any property or injury to, or death of, any person in, upon, or
about the Project, including the Premises, arising at any time and from any
cause other than solely by reason of the gross negligence or willful misconduct
of Landlord, its agents, employees, representatives, or contractors. Such waiver
includes, but is not limited to, any claim arising in connection with a failure
to furnish, or any cessation of the services Landlord has agreed to provide in
this Lease. Tenant shall, and hereby agrees to, indemnify and hold Landlord
harmless from any damage to any property or injury to, or death of, any person
arising from the condition of the Project or the use or occupancy of the
Building and the Premises by Tenant, its agents, employees, representatives,
contractors, successors or assigns, licensees or invitees, unless such damage is
caused solely by the gross negligence or willful misconduct of Landlord, its
agents, employees, representatives or contractors. The provisions of this
Article XIII shall survive the termination of this Lease with respect to any
occurrence prior to such termination and any resulting damage, injury or death.
Notwithstanding anything in this Article XIII to the contrary, Landlord shall
not be liable to Tenant for any claims resulting from the gross negligence or
willful misconduct of Landlord, its agents, employees, representatives or
contractors to the extent such claims are covered by the types of insurance
Tenant is to maintain pursuant to this Lease; and Tenant shall not be liable to
Landlord for any damage to the common areas of the Building resulting from the
negligence or willful misconduct of Tenant, or its agents, employees,
representatives or contractors to the extent such claims are covered by the
types of insurance Landlord is to maintain pursuant to this Lease. In addition
to any other limitations contained herein, any liability of Landlord to Tenant
under this Lease shall be limited to direct damages and shall expressly exclude
indirect, consequential, incidental or punitive damages, including any liability
to Tenant for lost profits or interruption of business.
ARTICLE XIV - DESTRUCTION OF PREMISES
Section 14.01. Destruction of Premises. Tenant shall give prompt notice to
Landlord in case of any casualty to the Premises or the Building. If the
Premises or the Building shall be damaged by fire or other casualty, then
Landlord may terminate this Lease by notice given within ninety (90) days after
such event. In the event this Lease is terminated as provided in this Section
14.01; (i) the entire proceeds of the insurance provided for in Section 13.01
hereof shall be paid by the insurance company or companies directly to Landlord
and shall belong to, and be the sole property of, Landlord, (ii) the portion of
the proceeds of the insurance provided for in Section 13.02 which is insuring
leasehold improvements, equipment, fixtures and other items, which by the terms
of the Lease, rightfully belong to the Landlord upon the termination of the
Lease by whatever cause shall be paid by the insurance company or companies
directly to Landlord, and shall belong to, and be the sole property of,
Landlord, (iii) Tenant shall immediately vacate the Premises in accordance with
this Lease, (iv) all Rent shall be apportioned and paid to the date on which
possession is relinquished or the date of such damage, whichever last occurs,
and (v) Landlord and Tenant shall be relieved from any and all further liability
or obligation hereunder except as expressly provided in this Lease.
Section 14.02. Obligation to Rebuild. If all or any portion of the Premises is
damaged by fire or other casualty and this Lease is not terminated in accordance
with the provisions of Section 14.01 above, then all insurance proceeds under
the policies referred to in Sections 13.01 and 13.02 hereof that are recovered
on account of any such damage by fire or casualty shall be made available for
the payment of the cost of repair, replacing and rebuilding, and as soon as
practicable after such damage occurs Landlord shall, using the proceeds provided
for by Section 13.01 (and, to the extent applicable, proceeds from insurance
policies provided for by Section 13.02) hereof, repair or rebuild the PRemises
or such portion thereof to its condition immediately prior to such occurrence to
the extent the cost therefor is fully funded by insurance proceeds. In no event
shall Landlord be obligated to repair or replace Tenant's movable trade
fixtures, equipment or personalty. In addition, Tenant shall, using the
remaining procees from policies provided for in Section 13.02 hereof, repair,
restore and replace Tenant's movable trade fixtures, personalty and equipment.
If the aforesaid insurance proceeds under the insurance proceeds under the
insurance provided for in Section 13.02 hereof shall be less than the cost
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of repairing or replacing Tenant's movable trade fixtures, equipment and
personalty, or other items required to be insured by Tenant pursuant to Section
13.02 hereof, Tenant shall pay the entire excess cost thereof; and if such
insurance proceeds shall be greater than the cost of such repair, restoration,
replacement or rebuilding, the excess proceeds shall belong to, and be the
property of, Tenant. Notwithstanding anything herein to the contrary, Landlord
shall have no obligation to repair or rebuild the Premises and/or the Building
in the event (a) the holder of any mortgage fails or refuses to make insurance
proceeds available for such repair and restoration, or such proceeds are
insufficient to cover the cost of repair; or (b) zoning or other applicable laws
do not permit such repair and restoration. Notwithstanding the foregoing,
Landlord shall use its best efforts to notify Tenant of its intention to rebuild
within ninety (90) days of the casualty damage, and if it determines not to
rebuild or cannot commence to rebuild within such ninety (90) day period, Tenant
shall have the right to terminate this Lease by written notice to Landlord
delivered within thirty (30) days of notice from Landlord of its intentions.
Section 14.03. Rent Abatement. In the event of any repair or rebuilding pursuant
to the provisions of Section 14.02 hereof, then there shall be abated an
equitable portion of the Base Rent during the existence of such damage, based
upon the portion of the Premises which is rendered untenantable and the duration
thereof. Except as may be specifically set forth in this Article XIV, Landlord
shall not be liable or obligated to Tenant to any extent whatsoever by reason of
any fire or casualty damage to the Premises, or any damages suffered by Tenant
by reason thereof, or the deprivation of Tenant's possession of all or any part
of the Premises.
ARTICLE XV - CONDEMNATION
Section 15.01. Condemnation of Premises or Project. In the event that all or
substantially all of the Premises or the Project is taken or condemned by
condemnation or conveyance in lieu thereof ("condemnation"), or if only a
portion of the Premises is condemned and Tenant is unable to conduct its
business in the remainder of the Premises, as reasonably determined by Landlord,
the Term hereof shall cease and this Lease shall terminate on the earlier of the
date the condemning authority takes possession or the date title vests in the
condemning authority.
Section 15.02. Partial Taking of Project. In the event any portion of the
Project shall be taken by condemnation (whether or not such taking includes any
portion of the Premises), which taking, in Landlord's reasonable judgment,
results in a condition where the Project cannot be restored in an economically
feasible manner for use substantially as originally designed, then Landlord
shall have the right, at Landlord's reasonable option, to terminate this Lease,
effective as of the date specified by Landlord in a written notice of
termination from Landlord to Tenant.
Section 15.03. Partial Taking of Premises. In the event that a portion (defined
as greater than 30% of the Premises), but less than substantially all of the
Premises shall be taken by condemnation, then this Lease shall be terminated as
of the date of condemnation as to the portion of the Premises so taken, and,
unless Landlord exercises its option to terminate this Lease pursuant to Section
15.02, this Lease shall remain in full force and effect as to the remainder of
the Premises.
Section 15.04. Termination. In the event of termination of this Lease pursuant
to the provisions of Section 15.01, 15.02 or 15.03, the Rent shall be
apportioned as of the date of such termination; provided, however, that those
provisions of this Lease which are designated to cover matters of termination
and the period thereafter, or by their very nature cover such matters, shall
survive the termination hereof.
Section 15.05. Condemnation Award. All compensation awarded or paid upon a
condemnation of any portion of the Project shall belong to and be the property
of Landlord without participation by Tenant. Nothing herein shall be construed,
however, to preclude tenant from prosecuting any claim directly against the
condemning authority for loss of business, loss of goodwill, moving expenses,
damage to, and cost of removal of, trade fixtures, furniture and other personal
property belonging to Tenant; provided, however, that Tenant shall make no claim
which shall diminish or adversely affect any award claimed or recovered by
Landlord.
ARTICLE XVI - ASSIGNMENT AND SUBLETTING
Section 16.01. No Assignment Without Consent. Neither Tenant, nor its successors
or permitted assigns, shall: transfer, assign, mortgage or encumber this Lease
or sublet or permit the Premises or any part thereof to be used by others, or
permit the Premises or any part thereof to be used for a use other than the
Permitted Use without the prior written consent of Landlord in each instance,
which
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consent shall not be unreasonably withheld, conditioned or delayed. Any
attempted transfer, assignment, subletting, mortgaging or encumbering of this
Lease in violation of the foregoing shall be void and confer no rights upon any
third person. No assignment or subletting, whether or not consented to by
Landlord, shall relieve Tenant of any obligations hereunder.
Section 16.02. Condition of Consent. If Landlord consents to any such transfer,
assignment or subletting hereunder, the same shall not be effective unless and
until (i) Tenant gives written notice thereof to Landlord and (ii) such
transferee, assignee or sublessee shall deliver to Landlord (A) a written
agreement in form and substance satisfactory to Landlord pursuant to which such
transferee, assignee or sublessee assumes all of the obligations and liabilities
of Tenant hereunder, (B) a certified copy of the assignment agreement or
sublease; and (C) the assignor and any guarantor agree in writing satisfactory
to Landlord in form and substance to remain liable under this Lease, and the
Guaranty, if any, and (iii) fifty percent (50%) of any Rent received by Tenant
in excess of the Rent payable hereunder shall be remitted to Landlord.
Landlord's consent or denial shall be given within fifteen (15) days of delivery
of all materials, and if no determination is given, Landlord's consent shall be
deemed to have been given. If without such prior consent this Lease is
transferred or assigned, as aforesaid, or if the Premises or any part thereof be
sublet or occupied by anybody other than Tenant, Landlord, whether before or
after default by Tenant, may, in addition to, and not in diminution of or
substitution for, any other rights and remedies under this Lease or pursuant to
law which Landlord may be entitled as a result thereof, collect rent from the
transferee, assignee, subtenant or occupant and apply the net amount collected
to the rent herein reserved, but no such transfer, assignment, subletting,
occupancy or collection shall be deemed a waiver of Landlord's right to give or
withhold consent to any transfer, assignment, mortgaging, or encumbering of the
Premises, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained.
Section 16.03. Tenant Remains Obligated. Neither the consent by Landlord
(including the provisions of Section 16.02) to any transfer, assignment,
subletting, mortgaging or encumbering, nor the references in any provision of
the Lease nor any rules and regulations to concessionaires and licensees, shall
in anyway be construed to relieve Tenant and any of its successors from their
obligations under this Lease or from obtaining, in each instance, the express
consent in writing of Landlord to any further transfer, assignment, subletting,
mortgaging or encumbering or to the granting of any concession or license for
the use of any part of the Premises.
Section 16.04. Assignment by Landlord. The term "Landlord", as used in this
Lease, so far as covenants or obligations on the part of Landlord are concerned,
shall be limited to mean and include only the owner or owners, at the time in
question, of the fee title to, or a lessee's interest in a ground lease of, the
Project. In the event of any transfer, assignment or other conveyance or
transfers of any such title or interest, Landlord herein named (an in case of
any subsequent transfers or conveyances, the then grantor) shall be
automatically freed and relieved from and after the date of such transfer,
assignment or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed and, without further agreement, the transferee of
such title or interest shall be deemed to have assumed and agreed to observe and
perform any and all obligations of Landlord hereunder, during its ownership of
the Project. Landlord may transfer its interest in the Lease or the Project
without the consent of Tenant and such transfer or subsequent transfer shall not
be deemed a violation on Landlord's part of any of the terms of this Lease.
ARTICLE XVII - FINANCING AND SUBORDINATION
Section 17.01. Subordination. This Lease and all rights of Tenant hereunder
shall be subordinate to all current and future underlying leases, deeds of
trust, mortgages or other security instruments or encumbrances covering any
portion of the Project or any interest of Landlord therein, as the same may be
amended from time to time, and Tenant shall execute any document reasonably
requested by Landlord to confirm such subordination. At any time, before or
after any transfer of Landlord's interest in the Project, Tenant shall, upon
request of such transferee ("Successor Landlord"), automatically attorn to and
become the Tenant (or if the Premises have been validly subleased, the
subtenant) of the Successor Landlord, without change in the terms or other
provisions of this Lease (or, in the case of a permitted sublease, without
change in this Lease or in the instrument setting for the terms of such
sublease); provided, however, that the Successor Landlord shall not be bound by
any modification to this Lease without the consent of the Successor Landlord or
by any payment made by Tenant of Rent for more than one (1) month in advance.
This agreement of Tenant to attorn to a Successor Landlord shall survive any
foreclosure sale, trustee's sale, conveyance in lieu thereof or termination of
any underlying lease. Tenant shall upon demand at any time, before or after any
such
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foreclosure or termination, execute, acknowledge, and deliver to the Successor
Landlord any written instruments evidencing such attornment as such Successor
Landlord may reasonably require.
B. Upon Tenant's written request in each instance, Landlord shall use
good faith efforts to obtain a non-disturbance agreement from any existing or
future mortgagee or beneficiary of any deed of trust with respect to the
Premises, provided that he same can be obtained at no cost or liability to
Landlord and Tenant provides any additional subordination or attornment that may
be requested. The form of Subordination, Non-Disturbance and Attornment
Agreement currently required by Landlord's mortgagee is attached hereto as
Exhibit F.
C. Following a transfer, the Successor Landlord shall remain liable to
Tenant for the return of the Deposit only to the extent that, a Successor
Landlord acknowledges receipt of all or any part of the Deposit.
ARTICLE XVIII - DEFAULT AND REMEDIES
Section 18.01. Defaults. The following shall constitute "Default(s)" by Tenant
under the Lease:
A. If Tenant shall fail to pay any installment of Rent when the same
shall become due and payable, and such failure shall continue for fifteen (15)
days after written notice from Landlord; provided, however, Landlord shall not
be required to provide such notice more than three (3) times in any twelve (12)
months period, nor more than seven (7) times during the Term;
B. If any execution, levy, attachment or other process of law shall
occur upon Tenant's goods, fixtures or interests in the Premises;
C. If Tenant permits to be done anything which creates a lien upon the
leasehold or the Premises and fails to cause such lien to be discharged, or bond
such lien or post such security with Landlord as is required by the Lease;
D. If Tenant shall fail to perform or observe any other term of this
Lease (not hereinbefore specifically referred to) on the part of Tenant to be
performed or observed, and such failure shall continue for more than thirty (30)
days after written notice from Landlord (except that such thirty (30) day period
shall be extended for such additional period of time as may reasonably be
necessary to cure such Default (subject to a maximum extension of thirty (30)
days), if such Default, by its nature, cannot be cured within such thirty (30)
day period, provided that Tenant commences to cure such Default within such
thirty (30) day period and is, at all times thereafter, in the process of
diligently curing the same and in any event cures such Default prior to the time
a failure to cure could cause the Landlord to be subject to prosecution for
violation of any law, rule, ordinance or regulation or causes, or could cause a
default under any deed of trust, mortgage, underlying lease, tenant lease or
other agreement applicable to the Project); or
Section 18.02. Remedies. Should a Default occur under this Lease, Landlord may
pursue the following:
A. Landlord shall have the right, by written notice to Tenant, to
declare this Lease terminated and the Term ended, in which event (i) Tenant
shall vacate and surrender the Premises; (ii) Tenant shall immediately pay to
Landlord the sum of (a) all Rent accrued through the date of termination or
recovery of possession by Landlord, whichever is later; plus (b) the worth at
the time of such termination of the excess, if any, of the amount of Rent
reserved in this Lease for the remainder of the stated term over the then
reasonable rental value of the Premises for the remainder of the stated term,
all of which amounts shall immediately due and payable from Tenant to Landlord;
and (iii) this Lease shall automatically expire.
B. Landlord shall have the right to bring a proceeding to recover
possession of the Premises from Tenant.
C. Landlord shall have the right, without notice, to reenter the
Premises and dispossess, by summary proceedings, self help or other lawful
means, Tenant and any other occupant(s) of the Premises, and Tenant shall have
no further claim or right hereunder. The words "re-enter" and "re-entry" as used
herein shall not be restricted to their technical legal meaning.
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D. Landlord may exercise its rights under Section 18.02 B or C above
with or without terminating the Lease, and in no event shall any such exercise
be construed as an election to terminate this Lease or operate to release Tenant
from any of its obligations for the remainder of the Term of this Lease, or give
rise to any claim for trespass.
E. If Landlord exercises its rights under Section 18.02 B or C above,
Landlord may remove all persons from the Premises, and Landlord may treat all
property as abandoned and dispose of same in accordance with section 20.02 of
this Lease.
F. If Landlord exercises its rights under Section 18.02 B or C above
and does not affirmatively elect to terminate the Lease, it may from time to
time, make such reasonable alterations and repairs as necessary in order to
relet the Premises, and thereafter relet the Premises or any part thereof for
such rent and upon such other terms and conditions as Landlord may determine
advisable in its sole discretion. Upon each such reletting all rentals and other
sums received by Landlord from such reletting shall be applied, first, to the
payment of any reasonable costs and expenses of such reletting; second, to the
payment of any indebtedness other than Rent due hereunder from Tenant to
Landlord; third, to the payment of Rent due and unpaid hereunder; and the
residue, if any, shall be applied in payment of the current month's rent. If
such rentals and other sums received from such reletting during any month are
less than the amounts due pursuant to the foregoing schedule for application of
proceeds, Tenant shall pay such deficiency to Landlord; if such rentals and
other sums shall be more, Tenant shall have no right to, and shall receive no
credit for, the excess. Such deficiency shall be calculated and paid monthly.
Notwithstanding any such reletting without termination, Landlord may at any time
elect to terminate this Lease for such previous breach. Should Landlord at any
time terminate this Lease or otherwise recover possession as a result of any
Default by Tenant, in addition to any other remedies it may have, it may recover
from Tenant all damages it may incur by reason of such Default, including the
cost of recovering the Premises, reasonable attorneys' fees, and including Rent
for the remainder of the term as calculated in Section 18.02A.
G. Any damage or loss of Rent sustained by Landlord may be recovered by
Landlord, at Landlord's option, in a single action or separate actions, from
time to time, as said loss of rents or damages shall accrue, or in a single
proceeding deferred until the expiration of the Term of this Lease (in which
event Tenant hereby agrees that the cause of action shall not be deemed to have
accrued until the date of expiration of said Term).
H. To the extent permitted by law, Tenant waives notice of re-entry or
institution of legal proceedings. Tenant hereby expressly waives (to the extent
legally permissible), for itself and all persons claiming by, through, or under
it, any right of redemption or for the restoration of the operation of this
Lease under any present or future law, in case Tenant shall ever be in default
hereunder or shall be dispossessed for any cause, or in case Landlord shall
obtain possession of the Premises as herein provided. Notwithstanding anything
to the contrary in the Lease, the Premises shall not be used in whole or in part
for residential purposes.
I. In addition to the other remedies provided in this Lease, and
anything contained herein to the contrary notwithstanding, Landlord shall be
untitled to restraint by injunction of any violation of this Lease.
SECTION 18.03. WAIVER OF TRIAL BY JURY. TENANT AND LANDLORD EACH HEREBY WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS LEASE.
Section 18.04. Additional Remedies and Waivers. With respect to the rights and
remedies and waivers herein, (i) such rights and remedies shall be in addition
to any other right and remedy now or hereafter available at law or in equity;
(ii) all such rights and remedies shall be cumulative and not exclusive of each
other; (iii) such rights and remedies may be exercised at such times, in such
order, to such extent, and multiple times without regard to whether the exercise
of one right or remedy precedes, concurs with or succeeds the exercise of
another; (iv) a single or partial exercise of a right or remedy shall not
preclude (a) a further exercise thereof, or (b) the exercise of another right or
remedy, from time to time, and (v) no waiver of a Default shall be effective
unless acknowledged in writing signed by Landlord.
Section 18.05. Distraint. In addition to all other rights and remedies of
Landlord, if Tenant shall be in Default hereunder, Landlord shall, to the extent
permitted by law, have a right of distraint for Rent and a lien on all of
Tenant's furniture, trade fixtures and equipment in the Premises, as security
for Rent.
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ARTICLE XIX - ACCESS BY LANDLORD
Section 19.01. Access.
A. Landlord may, during any reasonable time or times, upon prior notice
to Tenant, before and after the Commencement Date, enter upon the Premises, any
portion thereof, and any appurtenance thereto (with workers and materials, if
required) for the purpose of: (i) inspecting the same, (ii) making repairs,
replacements or alterations; or (iii) showing the Premises to prospective
purchasers or lessees (provided in the case of lessees, such access to be only
during last six (6) months of the Term. No such entry by Landlord shall
constitute an actual or constructive eviction of Tenant or give rise to any
liability to Tenant.
B. Landlord shall have the right, at its sole option, to immediately
and, in the case of emergency, without notice cure a default by Tenant for the
account and at the expense of Tenant and may access the Premises if necessary to
do so. Tenant agrees to pay, with interest at the Interest Rate on demand, to
Landlord the amount so incurred by Landlord in connection with such default.
ARTICLE XX - SURRENDER: HOLDING OVER
Section 20.01 Surrender. Upon the expiration or earlier termination of this
Lease, or upon re-entry by Landlord without terminating this Lease following a
Default, Tenant shall peacefully vacate and surrender the Premises to Landlord
in good order, broom clean and in the same condition as at the beginning of the
Term, reasonable wear and tear excepted. Tenant shall also remove its trade
fixtures, furniture and other personal property from the Premises along with any
leasehold improvements or other additions which Tenant is required to remove
pursuant to the Lease.
Section 20.02 Personal Property. If Tenant fails to timely remove its property
in accordance with Section 20.01 above, Landlord shall have the right to deem
such property abandoned by Tenant. Tenant shall not be entitled to any further
notice or cure period. Landlord may thereafter remove or otherwise deal with the
abandoned property in a commercially reasonable manner at Tenant's sole cost and
expense and Landlord shall have no liability to Tenant with respect to such
abandoned property. Tenant specifically acknowledges and agrees that in no event
shall Landlord be considered a bailee as to such property. Tenant shall and
hereby agrees to indemnify Landlord against any loss, cost, expense, claim,
cause of action or the like arising in connection with Landlord's proper
exercise of its rights under this Section 20.01 including, without limitation,
any claim by a third party for conversion or trespass as to chartels.
Section 20.03. Holding Over. If Tenant shall hold possession of the Premises
after the expiration or sooner termination of the Term of this Lease, then:
A. If such holding over is with Landlord's written consent, Tenant
shall be deemed to be occupying the Premises as a tenant from month-to-month, at
a monthly rental equal to 1.5 times the monthly installment of Base Rent payable
during the last month of the Term subject to all the other conditions,
provisions and obligations of this Lease insofar as the same are applicable to a
month-to-month tenancy; or
B. If such holding over is without Landlord's written consent, Tenant
shall be treated as a trespasser, and Landlord shall be entitled to the benefit
of all laws relating to the speedy recovery of the possession of the Premises.
Under such continued occupancy, Tenant shall be subject to the terms of the
Lease and the holdover rent in A above.
Section 20.04 Survival. The terms of this Article XX shall survive the
expiration or earlier termination of this Lease.
ARTICLE XXI - NOTICES
Section 21.01. Notices. All notices, consents, demands, requests, documents or
other communications (other than payment of Rent) required or permitted
hereunder (collectively, "notices") shall be deemed given, whether actually
received or not, when dispatched for hand delivery or delivery by air express
courier (with signed receipts) to the other party, or on the third business day
after deposit in the United States Mail, postage prepaid certified or
registered, return receipt requested,
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except for notice of change of address which shall be deemed given only upon
actual receipt. The addresses of the parties for notices shall be as follows:
To Landlord: c/o Douglas Development Corp.
11611 Old Georgetown Road
Rockville, Maryland 20852
with a copy to:
Lane H. Potkin, Esq.
Leibner & Potkin, P.C.
4530 Wisconsin Ave., N.W.
Washington, D.C. 20016
To Tenant At the Premises
Attention: Joe Lehnen
or any such other addresses subsequently specified by each party in notices
given pursuant to this Article.
Section 21.02 Notice to Lender. In the event of any default by Landlord
hereunder, Tenant shall, prior to taking any action to remedy such default or to
cancel this Lease or any other action in connection therewith, send to any
lender of which Tenant has notice) (the "Mortgagee") by certified mail, return
receipt requested, a notice specifying the default by Landlord, whereupon such
Mortgagee shall have the right, but not the obligation, to cure such default on
behalf of Landlord, which cure shall be accepted by Tenant, and such Mortgagee
shall be afforded a reasonable period of time to do so, including time to obtain
possession of the Premises by power of sale or judicial foreclosure, if such
should prove necessary to effect a cure. Tenant shall have no right to take any
other action as a result of Landlord's default unless and until Tenant complies
with the provisions of this paragraph.
ARTICLE XXII - HAZARDOUS MATERIALS
Sections 22.01 HAZARDOUS MATERIALS. The term "Hazardous Materials" as used in
this Lease shall mean any product, substance, chemical, material or waste whose
presence, nature, quantity and/or intensity of existence, use, manufacture,
disposal, transportation, spill, release or effect, either by itself or in
combination with other materials expected to be on the Demised Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment or the Premises, (ii) regulated or monitored by any governmental
authority, or (iii) a basis for liability of Landlord to any governmental agency
or third party under any applicable statute or common law theory. Hazardous
Materials shall include, but not limited to, hydrocarbons, petroleum, gasoline,
crude oil or any products, by-products or fractions thereof. Tenant shall not
engage in any activity in, on or about the Demised Premiises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Materials without the
express prior written consent of Landlord and compliance in a timely manner (at
Tenant's sole cost and expense) with all applicable law. For purposes of this
Lease, "Reportable Use" shall mean (i) the installation or use of any above or
below ground storage tank (ii) the generation, possession, storage, use,
transportation, or disposal of Hazardous Materials that requires a permit from,
or with respect to which a report, notice, registration or business plan is
required to be filed with, any governmental authority. Reportable Use shall also
include Tenant's being responsible for the presence in, on or about the Demised
Premises of Hazardous Materials with respect to which any applicable law
requires that a notice be given to persons entering or occupying the Premises or
neighboring properties.
Notwithstanding the foregoing, Tenant may, without Landlord's prior
consent, but in compliance with all applicable law, use any ordinary and
customary materials reasonably required to be used by Tenant in the normal
course of Tenant's business permitted on the Premises so long as such use is not
a Reportable Use and does not expose the Premises or neighboring properties to
any meaningful risk of contamination or damage or expose Landlord to any
liability therefor. In addition, Landlord may (but without any obligation to do
so) condition its consent to the use or presence of any Hazardous Materials,
activity or storage tank by Tenant upon Tenant's giving Landlord such additional
assurances as Landlord, in its reasonable discretion, deems necessary to protect
itself, the public, the Demised Premises and the environment against damage,
contamination or injury and/or liability therefrom or thereof, including, but
not limited to, the installation (and removal on or before Lease
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expiration or earlier termiation) of reasonably necessary protective
modifications to the Premises (such as concrete encasements). Landlord warrants
that to the best of its knowledge the Building and Premises are free from any
Hazardous Materials.
ARTICLE XXIII - BANKRUPTCY
Section 23.01. Events of Bankruptcy. The following shall be Events of Bankruptcy
under this Lease:
(i) Tenant's becoming insolvent, as that term is defined in Title 11 of
the United States Code (the "Bankruptcy Code"), or under the insolvency laws of
any state, district, commonwealth or territory of the United States (the
"Insolvency Laws");
(ii) The appointment of a receiver or custodian for any or all of
Tenant's property or assets, or the institution of a foreclosure action upon any
of Tenant's real or personal property.
(iii) The filing of a voluntary petition under the provisions of the
Bankruptcy Code or Insolvency Laws:
(iv) The filing of an involuntary petition against Tenant as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which either (i) is
not dismissed within thirty (30) days of filing, or (ii) results in the issuance
of an order for relief against the debtor; or
(v) Tenant's making or consenting to an assignment for the benefit of
creditors or a common law composition of creditors.
Section 23.02. Rights and Remedies.
A. Upon occurrence of an Event of Bankruptcy Landlord shall have all
rights and remedies available to Landlord pursuant to Article 18 provided,
however, that while a case in which Tenant is the subject debtor under the
Bankruptcy Code is pending, Landlord shall not exercise its rights and remedies
pursuant to Section 18 so long as (i) the Bankruptcy Code prohibits the exercise
of such rights and remedies, and (ii) Tenant or its Trustee in Bankruptcy
(hereinafter referred to as "Trustee") is in compliance with the provisions of
subparagraph B below.
B. In the event Tenant becomes the subject debtor in a case pending
under the Bankruptcy Code, Landlord's right to terminate this Lease pursuant to
subparagraph A above shall be subject to any rights of Trustee to assume or
assign this Lease pursuant to the Bankruptcy Code. Trustee shall not have the
right to assume or assign this Lease unless Trustee promptly (i) cures all
defaults under this Lease, (ii) compensates Landlord for monetary damages
incurred as a result of such defaults, (iii) provides adequate assurance of
future performance on the part of Tenant as debtor in possession or on the part
of the assignee tenant, and (iv) complies with all other requirements of the
Bankruptcy Code.
C. In the event Tenant is unable to (i) cure its defaults, (ii)
reimburse the Landlord for its monetary damages, or (iii) pay the rent due under
this Lease and all other payments required of Tenant under this Lease on time
(or within five (5) days of the due date). Tenant agrees in advance that it has
not met its burden to provide adequate assurance of future performance, and this
Lease may be terminated by Landlord in accordance with subparagraph B above.
Year).
ARTICLE XXIV - MISCELLANEOUS
Section 24.01. Professional Fees. Tenant shall after an Event of Default
reimburse Landlord for all reasonable fees incurred by Landlord, including
attorneys fees, in enforcing the provisions of this Lease. Notwithstanding the
foregoing, in any action or proceeding brought by either party against the other
under this Lease, the substantially prevailing party shall be entitled to
recover from the other such prevailing party's reasonable attorneys' fees and
court costs incurred in such action or proceeding.
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Section 24.02. No Partnership. Nothing contained herein shall be deemed or
construed as creating the relationship of principal and agent, partnership,
joint venture or ay other relationship between the parties hereto except
Landlord and Tenant.
Section 24.03. Brokerage. Tenant warrants and represents that except for The
Bank Companies there was no broker or agent on Tenant's behalf instrumental in
consummating this Lease, and that no conversations or prior negotiations were
had by Tenant with any broker or agent on Tenant's behalf concerning the renting
of the Premises other than Broker. Tenant shall indemnify and hold Landlord
harmless against any claims for brokerage or other commissions arising by reason
of a breach of the aforesaid representation and warranty. Landlord shall be
responsible for the payment of The Bank Companies for its services pursuant to
the terms of a separate agreement between The Bank Companies and Landlord.
Section 24.04 Interpretation
A. Every term, condition, agreement or provision contained in this
Lease that imposes an obligation on Tenant or Landlord shall be deemed to be
also a covenant by Tenant or Landlord, as applicable.
B. Wherever it is provided herein that a party "may" perform an act or
do anything, it shall be construed that that party may, but shall not be
obligated to, so perform or so do such act or thing.
C. This Lease may be executed in several counterparts and the
counterparts shall constitute but one and the same instrument.
D. Any party may act under this Lease by its attorney or agent
appointed by an instrument executed by such party.
E. Wherever a requirement is imposed on any party here, it shall be
deemed that such party shall be required to perform such requirement at its sole
cost and expense unless it is specifically otherwise provided herein.
F. Any restriction or or requirement imposed upon Tenant hereunder,
shall be deemed to extend to Tenant's guarantors, Tenant's subleases, Tenant's
assignees and Tenant's invitees, and it shall be Tenant's obligation to cause
the foregoing persons to comply with such restriction or requirement.
Section 24.05. Recording. Neither this Lease nor any memorandum hereof may be
recorded among the land records of the jurisdiction in which the Project is
located without the express written consent of Landlord which consent may be
granted or withheld in Landlord's sole discretion.
Section 24.06. Severability. Every agreement contained in this Lease is, and
shall be construed as, a separate and independent agreement. If any term of this
Lease or the application thereof to any person or circumstance shall be invalid
or unenforceable, the remaining agreements contained in this Lease shall not be
affected.
Section 24.07. Non-Merger. There shall be no merger of this Lease with any
underlying leasehold interest or the fee estate in the Project or any part
thereof by reason of the fact that the same person may acquire or hold, directly
or indirectly, this Lease or any interests in this Lease as well as any
underlying leasehold interest or fee estate in the Project or any interest in
such fee estate.
Section 24.08. Landlord's Liability. Anything contained in this Lease to the
contrary notwithstanding, Tenant agrees that Tenant shall look solely to the
estate and property of Landlord in the Premises for the collection of any
judgment or other judicial process requiring the payment of money by Landlord
for any default or breach by Landlord under this Lease, subject, however, to the
prior rights of any mortgages or lessor of the Premises. No other assets of
Landlord or any partners, shareholders, or other principals of Landlord shall be
subject to levy, executioin or other judicial process for the satisfaction of
Tenant's claim.
Section 24.09. Force Majeure. Whenever a period of time is herein prescribed for
action to be taken by Landlord including, without limitation, time for
construction and repairs in the Project, Landlord shall not be liable or
responsible for, and there shall be excluded from the computation for any such
period of time, any delays due to force majeure, which term shall include
strikes, riots, acts of God,
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shortages of labor or materials, war, governmental approvals, laws, regulations,
or restrictions, or any cause of any kind whatsoever which is beyond the
reasonable control of Landlord.
Section 24.10. Headings. The article headings contained in this Lease are for
convenience only. Words in the singular number shall be held to include the
plural, unless the context otherwise requires.
Section 24.11. Successors and Assigns. If there be more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several, and all
agreements and covenants therein contained shall be binding upon the respective
heirs, personal representatives, and successors and assigns of the parties
hereto. Notwithstanding the foregoing, nothing contained in this Section 24.11
shall be deemed to override restrictions on assignment and subletting contained
in this Lease.
Section 24.12. Entire Agreement Amendments. This Lease and the Exhibits and
Riders attached hereto set forth the entire agreement between the parties. No
amendment or modification of this Lease shall be binding or valid unless
expressed in a writing executed by both parties hereto.
Section 24.13. Governing Law. This Lease shall be governed by and construed
under the laws of the state of Maryland without reference to its conflicts of
laws principles. Should any provision of this Lease require judicial
interpretation, Landlord and Tenant hereby agree and stipulate that the court
interpreting or considering same shall not apply the presumption that the terms
hereof shall be more strictly construed against a party by reason of any rule or
conclusion that a document should be construed more strictly against the party
who itself or through its agents prepared the same, it being agreed that all
parties hereto have participated in the preparation of this Lease and that each
party had full opportunity to consult legal counsel of its choice before the
execution of this Lease.
Section 24.14 Acceptance by Landlord. The submission of this Lease to Tenant
shall not be construed as an offer and Tenant shall not have any rights with
respect thereto unless and until Landlord executes a copy of this Lease and
delivers the same to Tenant.
Section 24.15. Financial Statements. From time to time during the Term of this
Lease (but not more than twice annually), Tenant shall, upon ten (10) days prior
written notice from Landlord, provide Landlord with a current financial
statement and financial statements of the two (2) years prior to the current
financial statement year. Such statements shall be prepared in accordance with
generally accepted accounting principals and, if such is the normal practice of
Tenant, shall be audited by an independent certified public accountant. If it is
not the normal practice of Tenant to prepare audited statements, then the
unaudited statements, shall be certified to by the Tenant's chief financial
officer.
Section 24.16. Estoppel Certificates. Tenant shall at any time upon not less
than fifteen (15) days' prior written notice from Landlord execute, acknowledge
and deliver to Landlord a statement in writing (i) certifying that this Lease is
unmodified an in full force and effect (or, if modified, staring the nature of
such modifications and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the rent, security deposit, and other
charges are paid in advance, if any, and (ii) acknowledging that there are not,
to Tenant's knowledge, any uncured defaults on the part of the Landlord
hereunder or specifying such defaults, if any, which are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser of the
premises. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that no more than one (1)
month's rent has been paid in advance.
Section 24.17. Common Areas. "Common Areas" shall mean those certain areas and
facilities of the Building which are from time to time provided by Landlord for
the general use of substantially all tenants of the Project and their employees,
clients, customers, licensees and invitees or for use by the public.
Section 24.18. Authority. Each individual executing this Lease on behalf of
Landlord and Tenant represents and warrants that is duly authorized to execute
and deliver this Lease on behalf of Landlord or Tenant in accordance with a
partnership agreement or a duly adopted resolution of the Board of Directors or
in accordance with bylaws and that this Lease is binding upon Landlord and
Tenant in accordance with its terms.
Section 24.19. Interest. All past due payments of Rent shall bear interest from
the due date until paid at the rate ("Interest Rate") which is the greater of:
fifteen percent (15%) or four percent (4%) above the prime rate of interest from
time to time publicly announced by Nations Bank, N.A. or any
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successor thereof, provided, however, the interest sought to be imposed shall
not exceed the maximum rate permitted under Federal law or under the laws of the
state of Maryland.
Section 24.20. Survival. Tenant's obligations contained in this Lease shall
survive the termination or expiration of this Lease.
Section 24.21. Tenant Access. Tenant shall have access to the Premises
twenty-four (24) hours a day, seven (7) days a week, three hundred sixty-five
(365) days a year. Landlord shall provide a security system limiting access to
the office portions of the Building during non-business hours, provided it shall
provide Tenant with a reasonable number or cards or access devices for its
employees to obtain access to the Premises at all times. Such system shall
include a key card system limiting elevator access to individual floors after
normal business hours. Absent a casualty or other extraordinary event beyond
Landlord's reasonable control, Landlord shall ensure that at least one (1)
elevator is operational at all times.
Section 24.22. Modifications to Project. Landlord reserves the right at any time
to make alterations or additions to the Project, including the building of
additional stories on the Building and to build adjoining the same. Landlord
also reserves the right to construct other buildings or improvements on the Land
from time to time and to make alterations thereof or additions thereto and to
build additional stories on any such building or buildings, and to reconfigure
or otherwise after the parking areas and other common areas for the Project.
ARTICLE XXV - OPTION/FIRST NEGOTIATION
Section 25.01. Option. Provided Tenant is not in default of any term, condition
or covenant contained in this Lease at the time of exercise of this option or
(at Landlord's discretion) at the time such option period in to commence, Tenant
shall have the option of renewing this Lease for an additional term of five (5)
years (the "Option Period") on the same terms and conditions as provided herein
except for the Base Rent, which Base Rent for the first year of the Option
Period shall be 95% of the "Fair Market Value" of the Premises based on
comparable spaces in the Rockville sub-market, as determined in accordance with
Section 25.02. Tenant shall also pay during the Option Period all other charges
and expertises payable under the terms of the Lease, including its pro-rata
share of increases in Operating Charges as set forth in Article IX. Tenant may
exercise the foregoing option by giving Landlord written notice of such election
at least ten (10) months prior to the expiration of the initial Lease Term.
Failure to provide timely written notice of its election to extend shall
automatically terminate Tenant's right to extend to the Term. The Base Rent for
each Lease Year of the Option Period after the first Lease Year shall be
adjusted annually beginning with the second Lease Year of the Option Period, and
shall be equal to 1.03 times the Base Rent for the immediately preceding Lease
Year (without regard for any abatements or other reductions in Base Rent which
may have been in effect for such prior Lease Year).
Section 25.02 Market Value. For purposes of this Lease, the "Fair Market Value"
of the Premises shall be as reasonably agreed upon by Landlord and Tenant.
However, if Landlord and Tenant are unable to agree on a "Fair Market Value"
prior to one-hundred eighty (180) days from the expiration of the initial Term,
or any then applicable option term, then the Fair Market Value shall be
determined upon notice from either party to the other by the following method:
(i) The initial notice shall include the designation of an broker
qualified with at least seven (7) years experience in office leasing in the
Rockville sub-market. Within ten (10) days of the initial notice, the other
party shall designate a similarly qualified broker. Within ten (10) days after
this second designation, the two brokers shall designate a third broker,
similarly qualified.
(ii) In the event that the two brokers are unable to agree upon a
designation of a third within the time specified, then either party may apply to
the American Arbitration Association or the Circuit Court for Montgomery County,
Maryland Columbia for the appointment of a broker, who shall constitute the
third broker.
(iii) Within 30 days after the designation of the third Broker, each
Broker shall specify his or her respective determination of what Base Rent would
constitute a fair market value for the Demised Premises, with all other
provisions of the Lease applicable thereto.
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(iv) 95% of the average of the two most proximate determinations of
Base Rent shall constitute the annual Base Rent for the first Lease Year of the
Option Period.
(v) The parties shall share equally the reasonable costs of the three
brokers.
ARTICLE XXVI - TEMPORARY SPACE
Section 26.01. Temporary Space. Landlord shall make available to Tenant
approximately 3,000 square feet of space (the "Temporary Space") at the Building
located on the 5th floor when the existing Tenant at such space, Booz, Allen &
Hamilton, Inc. vacates the Temporary Space. The Temporary Space shall be
delivered in "AS IS" condition and Landlord shall have no obligation to make any
repairs, improvements or upgrades to the Temporary Space. Tenant may use the
Temporary Space as temporary offices for the period beginning with the date
Tenant takes occupancy through the date which is five (5) days after the
Commencement Date. During such time period Landlord shall be free to show the
Temporary Space to prospective tenants. Tenant's use and occupancy of the
Temporary Space shall be subject to all the provisions of this Lease as if the
Temporary Space was the Demised Premises, provided Tenant shall have no
obligation for the payment of Base Rent or Additional Rent. Notwithstanding the
foregoing, in the event the Tenant fails to vacate timely the Temporary Space as
required under this Section, Tenant shall thereafter pay Rent to Landlord for
the Temporary Space on at the rate of $24.25 per rentable square foot of the
Temporary Space, payable monthly. Tenant shall provide its own char and
janitorial services for the Temporary Space, provided Tenant may elect to
reimburse Landlord for such expenses. Prior to taking occupancy of the Temporary
Space, Tenant shall procure the insurance required under Article XIII of this
Lease and provide certificates to Landlord. Tenant shall be entitled to 4
parking permits during the Construction Period, at the monthly cost set forth in
Article III above.
IN WITNESS WHEREOF, Landlord and Tenant have set their signatures and
seals as of the date first above written.
LANDLORD:
JEMAL'S/CAYRE EXECUTIVE BLVD 6010 L.L.C.
Witness: By: CJ Maryland/Virginia, Inc. Managing Member
/s/ illegible By: /s/ Douglas Jemal
---------------------------- --------------------------------------
TENANT:
INFORMAX, INC.
ATTEST:
/s/ Joseph E. Lehnen By: /s/ Alexander Titomirov
---------------------------- -----------------------------------------
CFO Title: President/CEO
---------------------------------------
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State of Maryland
--------------------------------
County of Frederick ss
--------------------------------
This instrument was acknowledged before me on this 31st day of March,
1999, by Douglas Jemal in his capacity as Managing Member of CJ
Maryland/Virginia, Inc., Authorized Member of Jemal's\Cayre 6010 Executive Blvd.
L.L.C.
/s/ illegible
-----------------------------------
Notary Public
SEAL
My Commission Expires LESLIE V TRIMBLE
NOTARY PUBLIC STATE OF MARYLAND
My Commission Expires October 31, 2000
---------------------------------------
--------------------------------------- ss
This instrument was acknowledged before me on this 29th day of March, 1999,
by Alexander V. Titomirov in his capacity as President/CEO of InforMax, Inc.
KIMBERLY M. BARONDESS
NOTARY PUBLIC STATE OF MARYLAND
-------------------------------------------
My Commission Expires January 23, 2002
SEAL Notary Public
My Commission Expires
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EXHIBIT B
LAND
Part of Parcel "I" (EVE) as shown on a plat of the "WASHINGTON SCIENCE CENTER"
recorded among the Land Records of Montgomery County, Maryland in Plat Book 110
at plat 12895. Being part of the land conveyed by William Cohen, Trustee for the
Washington Science Center Joint Venture to Richard S. Cohen and Joel S. Meisal,
Trustees for Washington Science Center Joint Venture by Deed dated March 28,
1973 and recorded among the said Land Records in Liber 4403 at folio 750 and
confirmed by Corrective and Confirmatory Deed recorded May 1, 1979 in Liber 5313
at folio 696 among the said Land Records, and also being part of Parcel Three
(3) as described by metes and bounds in a Deed recorded among said Land Records
in Liber 3608 at folio 269, and being more particularly described as follows:
1. Beginning at the northeast corner of aforementioned Parcel Three (3),
said beginning point being on the southerly right of way line of
Executive Boulevard 120 feet wide, and running thence.
2. South 03 degrees ' 50" East 780.00 feet with the easterly line of said
Parcel Three (3) thence
3. South 86 degrees 31' 120" West 295 33 feet, with part of the southerly
line of said Parcel Three (3), thence the three (3) following courses
and distances in, through, over and across said Parcel Three 93) for a
new line of division,
4. North 03 degrees 28' 50" West 515.00 feet, thence
5. South 86 degrees 31' 10" West 18.17 feet, thence
6. North 03 degrees 28' 50" West 265.00 feet, to a point on the northerly
line of said Parcel Three (3), said line being the aforementioned
southerly right of way line of Executive Boulevard, thence
7. North 86 degrees 31' 10" East 315.50 feet, with said line of Executive
Boulevard to the place of beginning of this description CONTAINING a
calculated area of 235,172 square feet of 5.39881 acres of land, more
of less.
The improvements being known, and designated as premises No 6010 Executive
Boulevard, Rockville, Maryland.
Being property conveyed to EXECUTIVE BOULEVARD 6010, L.L.C., by Deed dated
November 14, 1996 and recorded on November 19, 1996 in Liber 14511 at folio 647
among the aforesaid Land Records.
Tax I.D. No. 4-1-2101628
<PAGE>
EXHIBIT C
FORM OF COMMENCEMENT NOTICE
This Commencement Notice is entered into this _____ day of ___________,
199__, by Jemal's/Cayre Executive Blvd., 6010 L.L.C. ("Landlord"), and
______________________ ("Tenant"), pursuant to the provisions of that certain
Lease Agreement (the "Lease") dated ___________, 1999, by and between Landlord
and Tenant covering certain space in the office building identified as 6010
Executive Blvd. Rockville, Maryland (the "Building"). All terms listed herein
with their initial letter capitalized shall have the meaning assigned to such
terms in this Lease.
W I T N E S S E T H :
1. The Building, the Premises, and all other improvements required to
be constructed and furnished by Landlord in accordance with the terms of the
Lease have been satisfactorily completed by the Landlord and accepted by the
Tenant
2. The Premises have been delivered to, and accepted by, the Tenant.
3. The Commencement Date of the Lease is the ___ day of _____________,
199__, and the Expiration Date is the day of _________________, 199__.
4. The Premises consist of _____ square feet of Net Rentable Area.
Tenant's Pro-Rata share is ___%.
5. The Base Rent is $_______ per annum.
6. Remittance of monthly installments and the foregoing payments shall
be made on the first (1st) day of each month in accordance with the terms and
conditions of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have set their hands and seals
hereunto and have caused this Commencement Notice to be executed by dult
authorized officials thereof, the day and year respectively set forth
hereinabove.
LANDLORD
JEMAL'S/CAYRE EXECUTIVE BLVD 6010 L.L.C
BY:
-------------------------------
TENANT:
INFORMAX, INC.
BY:
-------------------------------
<PAGE>
EXHIBIT D
RULES AND REGULATIONS
The following rules and regulations have been formulated for the safety
and well-being of all office tenants of the Building. Strict adherence to these
rules and regulations is necessary to guarantee that every tenant will enjoy a
safe and undisturbed occupancy of its premises. Any violation of these rules and
regulations by Tenant not cured within a reasonable period, at the option of
Landlord, shall constitute a default by Tenant under the Lease.
The following rules shall be applicable to all office tenants of the
Building:
1. Tenant shall not obstruct or encumber or use for any purpose other
than ingress and egress to and from the Premises any sidewalk, entrance,
passage, court, elevator, vestibule, stairway, corridor, hall or other part of
the Building not exclusively occupied by Tenant. No bottles, parcels or other
articles shall be placed, kept or displayed on window ledges, in windows opr in
corridors, stairways or other public parts of the Building. Landlord shall have
the right to control and operate the public portions of the Building and the
facilities furnished for common use of the tenants, in such manner as Landlord
deems best for the benefit of the tenants generally.
2. Tenant shall not attach to, hang on or use in connection with any
window or door of the Premises any drape, blind, shade or screen, without
Landlord's prior written consent, which consent shall not to be unreasonably
withheld or delayed. All awnings, drapes, projections, curtains, blinds, shades,
screens and other fixtures shall be of a quality, type, design and color, and
shall be attached in a reasonable manner, reasonably approved in writing by
Landlord. Any Tenant-supplied window treatments shall be installed behind
Landlord's standard window treatments so that Landlord's standard window
treatments will be what is visible to persons outside the Building.
3. Tenant shall not place any showcase, mat or other article in any
part of the exterior of the Premises.
4. Tenant shall not use the water fountains, water and wash closets,
and plumbing and other fixtures, to the extent provided by Landlord, for any
purpose other than those for which they were constructed, and Tenant shall not
place any debris, rubbish, rag or other substance therein (including, without
limitation, coffee grounds). All damages from misuse of fixtures shall be home
by the tenant causing same.
5. Tenant shall not construct, maintain, use or operate within the
Premises any electrical device, wiring or apparatus in connection with a loud
speaker system or other sound system, in connection with any excessively bright,
changing, flashing, flickering or moving light or lighting device, or in
connection with any similar device or system, without Landlord's prior written
consent. Tenant shall not construct, maintain, use or operate any such device or
system outside of its Premises or within such Premises so that the same can be
heard or seen from outside the Premises. No flashing, neon or search lights
shall be used which can be seen outside the Premises.
6. Tenant shall not, without Landlord's consent, bring any bicycle,
vehicle, animal, bird or pet of any kind into the Building, except seeing-eye or
hearing-ear dogs for handicapped persons visiting the Premises.
7. Tenant shall not cause or permit any unusual or objectionable odor
to be produced upon or emanate from the premises.
8. Tenant shall not make any unseemly or disturbing noise or disturb or
interfere with other occupants of the Building.
9. Tenant shall not place on any floor a load exceeding the floor load
per square foot which such floor as designed to carry. Landlord shall have the
reasonable right to prescribe the weight, position and manner of installation or
safes and other heavy equipment and fixtures. Landlord shall have the right to
repair at Tenant's expense any damage to the Premises or the Building caused by
Tenant's moving property into or out of the Premises or due to the same being in
or upon the Premises or to require Tenant to do the same. Tenant shall not
receive into the Building or carry in the elevators any safes, freight,
furniture, equipment or bulky item except as approved by Landlord, such approval
not to be unreasonably withheld or delayed, and any such furniture, equipment
and bulky item shall be delivered only through the designated delivery entrance
of the Building and the designated freight elevator at designated times. Tenant
shall remove promptly
<PAGE>
from any sidewalk adjacent to the Building any furniture, furnishing, equipment
or other material there delivered or deposited for Tenant.
10. Tenant shall keep doors leading to a corridor or main hall closed
at all times except as such doors may be used for ingress or egress and shall
lock such doors during all times the Premises are unattended.
11. Tenant shall not install any equipment of any type or nature that
will or may necessitate any changes, replacements or additions to, or changes in
the use of, the water system, heating system, plumbing system, air-conditioning
system or electrical system of the Premises or the Building which will adversely
affect the functioning, without obtaining Landlord's prior written consent. In
all other situations Landlord's consent shall not be unreasonably withheld or
delayed. If any machine or equipment of Tenant causes noise or vibration that
may be transmitted to such a degree as to be objectionable to Landlord or any
tenant in the Building, then Landlord shall have the right to install at
Tenant's expense vibration eliminators or other devices sufficient to reduce
such noise and vibration to a level reasonably satisfactory to Landlord or to
require Tenant to do the same.
12. Tenant shall not permit or encourage any loitering in or about the
Premises and shall not use or permit the use of the Premises for lodging,
dwelling or sleeping.
13. Tenant shall not request Landlord's employees to perform any work
or do anything outside of such employees' regular duties without Landlord's
prior written consent. Tenant's special requirements will be attended to only
upon application to Landlord, and any such special requirements will be attended
to only upon application to Landlord, and any such special requirements shall be
billed to Tenant in accordance with the schedule of charges maintained by
Landlord from time to time or as is agreed upon in writing in advance by
Landlord and Tenant. Tenant shall not employ any of Landlord's employees for any
purpose whatsoever without Landlord's prior written consent.
14. Canvassing, soliciting and peddling in the Building are prohibited
and Tenant shall cooperate to prevent the same.
15. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or other sin the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. Tenant shall be responsible for any loss of damage resulting
from any deliveries made by or for Tenant.
16. Drapes (whether installed by Landlord or Tenant) which are visible
from the exterior of the Building, shall be cleaned if reasonably necessary by
Tenant at least once a year, without notice from Landlord, at Tenant's own
expense.
17. Tenant shall not without Landlord's prior consent install or permit
the installation of any wiring for any purpose on the exterior of the Premises.
18. Tenant acknowledges that it is Landlord's intention that the
Building be operated in a manner which is consistent with the highest standards
of cleanliness, decency and morals in the community which it serves. Tenant
shall not use the Premises for any immoral or illegal purpose.
19. Tenant shall not purchase water, ice, coffee, soft drinks, towels,
or other merchandise or services from any company or person whose repeated
violation of Building regulations has caused, in Landlord's opinion, a hazard or
nuisance to the Building and/or its occupants.
20. Tenant shall not pay any employee on the Premises except those
actually employed by the company in the local area; nor shall Tenant use the
Premises as headquarters for large scale employment of workers for other
locations.
21. Landlord shall have the right, upon written notice to Tenant, to
require Tenant to refrain from or discontinue any advertising by Tenant which,
in Landlord's opinion, tends to impair the reputation of the Building or its
desirability for offices.
22. Tenant shall not market, paint or in any manner deface any part of
the Premises or the Building. No stringing of wires, boring or cutting shall be
permitted except with Landlord's prior written consent not to be unreasonably
withheld or delayed; provided Tenant shall be permitted to undertake all cabling
required in connection with its business.
2
<PAGE>
23. Tenant shall not bring or keep, or permit to be brought or kept, in
the Building any flammable, combustible or explosive fluid, chemical or
substance.
24. Tenant shall comply with all work place smoking Laws. There shall
be no smoking in bathrooms, elevator lobbies, elevators, and other common areas.
25. Landlord may, upon request of Tenant, waive Tenant's compliance
with any of the rules, provide that (a) no waiver shall be effective unless
signed by Landlord, (b) no waiver shall relieve Tenant from the obligation to
comply with such rule in the future unless otherwise agreed in writing by
Landlord, (c) no waiver granted to any tenant shall relieve any other tenant
from the obligation of complying with these rules and regulations, and (d) no
waiver shall relieve Tenant from any liability for any loss or damage resulting
from Tenant's failure to comply with any rule.
3
<PAGE>
EXHIBIT E
COMPLETION SCHEDULE
<PAGE>
EXHIBIT F
FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
2
<PAGE>
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made as of the _______ day of ______________, 199____ by and
between _______________ ("Lender") and _________________________ having an
address at _____________________________________________________________________
("Tenant").
RECITALS:
A. Lender is the present owner and holder of a certain mortgage and
security agreement (the "Security Instrument") dated ___________, 199__, given
by Landlord (defined below) to Lender which encumbers the [fee] estate of
Landlord in certain premises described in Exhibit A attached hereto (the
"Property") and which secures the payment of certain indebtedness owed by
Landlord to Lender evidenced by a certain promissory note dated _______________,
199__, given by Landlord to Lender (the "Note").
B. Tenant is the holder of a leasehold estate in a portion of the
Property under and pursuant to the provisions of a certain lease dated
_______________, 19__ between _____________, as landlord ("Landlord") and
Tenant, as tenant (the "Lease"), and
C. Tenant has agreed to subordinate the Lease to the Security
Instrument and to the lien thereof and Lender has agreed to grant
non-disturbance to Tenant under the Lease on the terms and conditions
hereinafter set forth.
AGREEMENT:
For good and valuable consideration, Tenant and Lender agree as
follows:
1. SUBORDINATION. The Lease and all of the terms, covenants and
provisions thereof and all rights, remedies and options of Tenant thereunder are
and shall at all times continue to be subject and subordinate in all respects to
the terms, covenants and provisions of the Security Instrument and to the lien
thereof, including without limitation, all renewals, increases, modifications,
spreaders, consolidations, replacements and extensions thereof and to all sums
secured thereby and advances made thereunder with the same force and effect as
if the Security Instrument had been executed, delivered and recorded prior to
the execution and delivery of the Lease.
2. NON-DISTURBANCE. If any action or proceeding is commenced by Lender
for the foreclosure of the Security Instrument or the sale of the Property,
Tenant shall not be named as a party therein unless such joinder shall be
required by law, provided, however, such joinder shall not result in the
termination of the Lease or disturb the Tenant's possession or use of the
premises demised thereunder, and the sale of the Property in any such action or
proceeding and the exercise by Lender of any of its other rights under the Note
or the Security Instrument shall be made subject to all rights of Tenant under
the Lease, provided that at the time of the commencement of any such action or
proceeding or at the time of any such sale or exercise of any such other rights
(a) the Lease shall be in full force and effect and (b) Tenant shall not be in
default beyond any applicable cure periods under any of the terms, covenants or
conditions of the Lease or of this Agreement on Tenant's part to be observed or
performed.
3. ATTORNMENT. If Lender or any other subsequent purchaser of the
Property shall become the owner of the Property by reason of the foreclosure of
the Security Instrument or the acceptance of a deed or assignment in lieu of
foreclosure or by reason of any other enforcement of the Security Instrument
(Lender on such other purchaser being hereinafter referred as "Purchaser"), and
the conditions set forth in Section 2 above have been met at the time
<PAGE>
Purchaser becomes owner of the Property, the Lease shall not be terminated or
affected thereby but shall continue in full force and effect as a direct lease
between Purchaser and Tenant upon all of the terms, covenants and conditions set
forth in the Lease and in that event, Tenant agrees to attorn to Purchaser and
Purchaser by virtue of such acquisition of the Property shall be deemed to have
agreed to accept such attornment, provided, however, that Purchaser shall not be
(a) liable for the failure of any prior landlord (any such prior landlord,
including Landlord and any successor landlord, being hereinafter referred to as
a "Prior Landlord") to perform any of its obligations under the Lease which have
accrued prior to the date on which Purchaser shall become the owner of the
Property, provided that the foregoing shall not limit Purchaser's obligations
under the Lease to correct any conditions that (i) existed as of the date
Purchaser shall become the owner of the Property and (ii) violate Purchaser's
obligations as landlord under the Lease; provided further, however, that
Purchaser shall have received written notice of such omissions, conditions or
violations and has had a reasonable opportunity to cure the same, all pursuant
to the terms and conditions of the Lease, (b) subject to any offsets, defenses,
abatements or counterclaims which shall have accrued in favor of Tenant against
any Prior Landlord prior to the date upon which Purchaser shall become the owner
of the Property, (c) liable for the return of rental security deposits, if any,
paid by Tenant to any Prior Landlord in accordance with the Lease unless such
sums are actually received by Purchaser, (d) bound by any payment of rents,
additional rents or other sums which Tenant may have paid more than one (1)
month in advance to any Prior Landlord unless (i) such sums are actually
received by Purchaser or (e) bound by any agreement terminating or amending or
modifying the rent, term, commencement date or other material term of the Lease,
or any voluntary surrender of the premises demised under the Lease, made without
Lender's or Purchaser's prior written consent prior to the time Purchaser
succeeded to Landlord's interest, other than with respect to the exercise of any
right, options, or elections presently contained in the Lease, including,
without limitation, options to terminate and options to extend. In the event
that any liability of Purchaser does arise pursuant to this Agreement, such
liability shall be limited and restricted to Purchaser's interest in the
Property and shall in no event exceed such interest.
4. NOTICE TO TENANT. After notice is given to Tenant by Lender that the
Landlord is in default under the Note and the Security Instrument and that the
rentals under the Lease should be paid to Lender pursuant to the terms of the
assignment of leases and rents executed and delivered by Landlord to Lender in
connection therewith, Tenant shall thereafter pay to Lender or as directed by
the Lender, all rentals and all other monies due or to become due to Landlord
under the Lease and Landlord hereby expressly authorizes Tenant to make such
payments to Lender and hereby releases and discharges Tenant from any liability
to Landlord on account of any such payments.
5. NOTICE TO LENDER AND RIGHT TO CURE. Tenant shall notify Lender of
any default by Landlord under the Lease and agrees that, notwithstanding any
provisions of the Lease to the contrary, no notice of cancellation thereof or of
an abatement shall be effective unless Lender shall have received notice of
default giving rise to such cancellation or abatement and shall have failed
within sixty (60) days after receipt of such notice to cure such default, or if
such default, or if such default cannot be cured within sixty (60) days after
receipt of such notice to commence and thereafter diligently pursue any action
necessary to cure such default. Notwithstanding the foregoing, Lender shall have
no obligation to cure any such default.
6. NOTICES. All notices or other written communications hereunder shall
be deemed to have been property given (i) upon delivery, if delivered in person
or by facsimile transmission with
<PAGE>
receipt acknowledged by the recipient thereof and confirmed by telephone by
sender, (ii) one (1) Business Day (hereinafter defined) after having been
deposited for overnight delivery with any reputable overnight courier service,
or (iii) three (3) Business Days after having been deposited in any post office
or mail depository regularly maintained by the U.S. Postal Services and sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to Tenant: ____________________
____________________
If to Lender: ____________________
____________________
____________________
or addressed as such party may from time to time designated by written notice to
the other parties. For purposes of this Section 0, the term "Business Day" shall
mean a day on which commercial banks are not authorized or required by law to
close in the state where the Property is located. Either party by notice to the
other may designated additional or different addresses for subsequent notices or
communications.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of Lender, Tenant and Purchaser and their respective
successors and assigns.
8. GOVERNING LAW. This Agreement shall be deemed to be a contract
entered into pursuant to the laws of the State where the Property is located and
shall in all respects be governed, construed, applied and enforced in accordance
with the laws of the State where the Property is located.
9. MISCELLANEOUS. This Agreement may not be modified in any manner or
terminated except by an instrument in writing executed by the parties hereto. If
any term, covenant or condition of this Agreement is held to be invalid, illegal
or unenforceable in any respect, this Agreement shall be construed without such
provision. 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 part hereto to execute this Agreement, or
any counterpart hereof, shall not relieve the other signatories from their
obligations hereunder. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns and pronouns shall include the plural and vice versa.
IN WITNESS WHEREOF, Lender and Tenant have duly executed this Agreement as
of the date first above written.
LENDER:
By:
--------------------------
Name:
-------------------------
TENANT:
/s/ Alex Titomirdv
------------------------------
By: President/CEO
---------------------------
Name: Alex Titomirdv
------------------------
<PAGE>
ADDENDUM TO LEASE AGREEMENT
This Addendum to Lease Agreement (the "Addendum") is made effective of the
8th day of July, 1999, by and among JEMAL'S/CAYRE 6010 EXECUTIVE BLVD. L.L.C
("Landlord") and INFORMAX, INC. ("Tenant);
Whereas, Landlord and Tenant executed and Office Lease Agreement dated
March 25, 1999 (the "Lease") for Twelve Thousand Six Hundred Twenty Four (12,624
square feet of space (the "Initial Premises") on the tenth floor of the Building
located at 6010 Executive Blvd., Rockville, Maryland (the "Building").
Whereas, Tenant now wishes to lease additional space at the Building
and extend the term of the Lease, and Landlord is willing to rent Tenant such
additional space and extend the term of the Lease all in accordance with the
terms hereinafter set forth;
Now, Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. MODIFICATION TO LEASE. The terms of this Addendum shall be deemed to
modify and supplement the terms of the Lease and in the event of any
inconsistencies the terms of this Addendum shall control. All references herein
and in the future to the "Lease", unless the context is clearly otherwise, shall
be deemed to the Lease as amended by this Addendum. All capitalized terms used
herein shall have the meanings as set forth in the Lease, unless otherwise
expressly defined herein.
2. NEW SPACE. Landlord hereby leases to the Tenant the additional space as
depicted on Exhibit A hereto as the "New Space", being approximately an
additional Five Thousand Six Hundred (5,600) square feet, including core factor,
located on the 5th floor at the Building. The actual Net Rentable Area of the
New Space will be determined in the manner set forth in Section 1.01.H. of the
Lease. Hereafter, the "Net Rentable Area of the Premises" for all purposes of
the Lease shall be the Net Rentable Area of the Initial Premises, as finally
determined in accordance with Section 1.01 H. of the Lease. The Tenant's
Pro-Rata share under the Lease after the date of this Addendum shall be computed
using the actual square footages of the Initial Premises and the New Space. All
references in the Lease, as amended by this Addendum, to "Premises", shall
include both the Initial Premises and the New Space.
3. ANNUAL BASE RENT. Commencing on the Commencement Date (as defined in the
Lease), the Base Rent for the Premises (which includes the New Space and the
Initial Premises) shall be the sum of (i) of the product of $24.25 multiplied by
the Net Rentable Area of the Initial Premises; and (ii) of the product of $24.25
multiplied by the Net Rentable Area of the New Space. Notwithstanding the
foregoing, the portion of the monthly Base Rent attributable to the New Space
shall be abated for the period ending on the earlier of (i) 120
1
<PAGE>
days from the date of final execution of this Addendum; or (ii) the date the New
Space is substantially completed sufficient to permit Tenant to occupy the New
Space.
4. ADDITIONAL SECURITY DEPOSIT. Upon execution of this Addendum, the Tenant
shall pay to Landlord the sum of $11,316.66, such amount to be added to and
become part of the "Deposit" under Section 7.01 of the Lease.
5. ADDITIONAL PARKING PERMITS. The number of parking permits set forth in
Section is hereby increased from "32" to "45", effective upon Tenant taking
occupancy of the New Space.
6. CONDITION OF NEW SPACE. Construction of the New Space shall be undertake
and governed by the provisions of ARTICLE IV of the Lease, including, but not
limited to, the provisions for the payment by Landlord of a $25.00 Allowance per
rentable square foot of the New Premises. Landlord shall allow Tenant to use the
Allowance for the "New Space" for the completion of the improvements for the
Initial Premises, provided (i) the total does not exceed $25.00 multiplied by
the net rentable area of the Initial Premises and New Space, and (ii) no portion
of the Allowance attributable to the New Space shall be payable until after
Tenant has taken occupancy of the New Space.
7. APPLICABILITY OF LEASE. Subsequent to the date of this Addendum, all
references in the Lease to the "Demised Premises" or "Premises" shall include
the Initial Premises as set forth in the Lease and the New Space. It is the
intent of the parties that except as otherwise expressly provided herein
(including the provisions for different rental rates for the Premises), the
continued use and occupancy of the New Space shall be subject to all the terms
and conditions of the Lease, as if the New Space was originally included as part
of the Premises. Except as otherwise expressly provided herein, all the terms of
the Lease shall remain in full force and effect and shall not be modified or
otherwise effected by this Addendum. The parties acknowledge that the Lease
currently is the full force and effect, and that currently no defaults exist
thereunder.
8. ENTIRE AGREEMENT. This Addendum constitutes the entire understanding of
the parties hereto relating to the subject matter hereof, and shall be binding
upon, and inure to the benefit of, the parties hereto, their successors and
assigns. This Addendum may not be amended except by a writing signed by all the
parties hereto.
In Witness Whereof, the parties have signed this Addendum to Lease
Agreement effective this 8 day of July 1999.
2
<PAGE>
JEMAl's/CAYRE 6010 EXECUTIVE BLVD. L.L.C.
By: /s/ Douglas Jemal
-------------------------
Douglas Jemal, Authorized Member
INFORMAX, INC.
BY: /s/ Alex Titomirov
-------------------------
State of Maryland
-----------------------------
County of Frederick , ss
-----------------------------
This instrument was acknowledged before me on this 13th day of July, 1999,
by Douglas Jemal, in his capacity as Authorized Member of Jemal's/Cayre 6010
Executive Blvd. L.L.C.
/s/ Leslie V. Trimble
SEAL ------------------------------
My Commission Expires Notary Public
Leslie V. Trimble
Notary Public State of Marylamd
My Commission Expires October 31, 2000
-----------------------------
, ss
-----------------------------
This instrument was acknowledged before me on this 8th day of July, 1999,
by Kimberly B. Durazo in capacity as Dir. of Operations of Informax,
Inc.
/s/ Kimberly Barondess Durazo
SEAL ------------------------------
My Commission Expires Notary Public
Kimberly M. Barondess
Notary Public State of Maryland
My Commission Expires January 23, 2002
3
<PAGE>
EXHIBIT A
NEW SPACE
4
<PAGE>
EXHIBIT C
FORM OF COMMENCEMENT NOTICE
This Commencement Notice is entered into this 22 day of July, 1999, by
Jemal's/Cayre Executive Blvd 6010 L.L.C. ("Landlord"), and INFORMAX, INC.
("Tenant"), pursuant to the provisions of that certain Lease Agreement (the
"Lease") dated March 31st, 1999, by and between Landlord and Tenant covering
certain space in the office building identified as 6010 Executive Blvd.
Rockville, Maryland (the "building"). All terms used herein with their initial
letter capitalized shall have the meaning assigned to such terms in the Lease.
W I T N E S S E T H
1. The Building, the Premises, and all other improvements required to be
constructed and furnished by Landlord in accordance with the terms of the Lease
have been satisfactorily completed by the Landlord and accepted by the Tenant.
2. The Premises have been delivered to, and accepted by, the Tenant
3. The Commencement Date of the Lease is the 1 day of August, 1999, and the
Expiration Date is the last day of July, 2006.
4. The Premises consist of 18,224 square feet of Net Rentable Area.
Tenant's Pro-Rata share is 15.14%.
5. The Base Rent is $441,932.00 per annum.
6. Remittance of monthly installments and the foregoing payments shall be
made on the first (1st) day of each month in accordance with the terms and
conditions of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have set their hands and seals
hereunto and have caused this Commencement Notice to be executed by duly
authorized officials thereof, the day and year respectively set forth
hereinabove.
LANDLORD:
JEMAL'S/CAYRE EXECUTIVE BLVD. 6010 L.L.C.
BY: /s/ Douglas Jemal
------------------------------
TENANT:
INFORMAX, INC.
BY: /s/ Joseph E. Lehnen
----------------------------
Chief Financial Officer
<PAGE>
SECOND ADDENDUM TO LEASE AGREEMENT
This Second Addendum to Lease Agreement (the "Second Addendum") is made
effective as of the 1st day of February, 2000, by and among JEMAL'S CAYRE 6010
EXECUTIVE BLVD L.L.C. ("Landlord") and INFORMAX, INC. ("Tenant");
Whereas, Landlord and Tenant executed and Office Lease Agreement dated
March 31, 1999 (the "Lease") for Twelve Thousand Six Hundred Twenty Four
(12,624) square feet of space (the "Initial Premises") on the tenth floor of the
Building located at 6010 Executive Blvd., Rockville, Maryland (the "Building");
Whereas, by Addendum to Lease dated July 8, 1999 (the "Addendum"), the
parties amended the Lease by adding an additional 5,600 square feet of space to
the Premises (the "New Space"), increasing the total square footage of the
Premises to 18,224;
Whereas, Tenant now wishes to lease additional space at the Building and
Landlord is willing to rent Tenant such additional space all in accordance with
the terms hereinafter set forth;
Now, Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties as follows:
1. MODIFICATION TO LEASE. The terms of this Second Addendum shall be deemed
to modify and supplement the terms of the Lease as amended by the Addendum and
in the event of an inconsistencies the terms of this Second Addendum shall
control. All references herein and in the future to the "Lease", unless the
context is clearly otherwise, shall be deemed to be the Lease as amended by this
Second Addendum and the Addendum. All capitalized terms used herein shall have
the meanings as set forth in the Lease, unless otherwise expressly defined
herein.
2. EXPANSION SPACE. Landlord hereby leases to the Tenant the additional
space as depicted on Exhibit A hereto as the "Expansion Space" being an
additional Three Thousand Seventy Six (3,076) square feet, including core
factor, located on the fifth (5th) floor at the Building. The Net Rentable Area
of the Expansion Space has been determined in the manner set forth in Section
1.01.H. of the Lease. Hereafter, the "Net Rentable Area of the Premises" for all
purposes of the Lease shall be 21, 300 square feet (being the sum of Net
Rentable Area of (i) the Expansion Space (ii) the New Space; and (iii) the
Initial Premises. The Tenant's Pro-Rata share under the Lease after the date of
this Second Addendum shall be 17.6%. All references to Premises in the Lease,
as amended by this Second Addendum and the Addendum, "Premises", shall include
the InitialPremises, the New Space, and the Expansion Space.
3. ANNUAL BASE RENT. Commencing on the Commencement Date (as defined in the
Lease), the Base Rent for the Premises (which includes the New Space, the
Expansion Space and the Initial Premises) shall be the product of $24.25
multiplied by the Net Rentable Area of
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the Premises, being $516,525.00. Notwithstanding the foregoing, the portion of
the monthly Base Rent attributable to the Expansion Space shall be abated for
the period ending on the earlier of (i) 120 days from the date of final
execution of this Addendum; or (ii) the date the Expansion Space is
substantially completed sufficient to permit Tenant to occupy the Expansion
Space. The Base Rent shall be continued to be adjusted in the manner set forth
in the Lease.
4. ADDITIONAL SECURITY DEPOSIT. Upon execution of this Second Addendum, the
Tenant shall pay to Landlord the sum of $6,216.08, such amount to be added to
and become part of the "Deposit" under Section 7.01 of the Lease, as increased
under Paragraph 4 of the Addendum.
5. ADDITIONAL PARKING PERMITS. The number of parking permits set forth in
Section 3.01 is hereby increased from "45" to "53", effective upon Tenant taking
occupancy of the Expansion Space.
6. CONDITION OF NEW SPACE. Construction of The Expansion Space shall be
undertaken and governed by the provisions of ARTICLE IV of the Lease, including,
but not limited to, the provisions for the payment by Landlord of a $25.00
Allowance per rentable square foot of the Expansion Space. Landlord shall all
Tenant to use the Allowance for the "Expansion Space" for the completion of the
improvements for the Initial Premises and/or the New Space provided no portion
of the Allowance attributable to the Expansion Space shall be payable until
after Tenant has taken occupancy of the Expansion Space.
7. APPLICABILITY OF LEASE. Subsequent to the date of this Second Addendum,
all references in the Lease to the "Demised Premises" or "Premises" shall
include the Initial Premises as set forth in the Lease and the New Space and the
Expansion Space. It is the intent of the parties that except as otherwise
expressly provided herein, the continued use and occupancy of the Expansion
Space shall be subject to all the terms and conditions of the Lease, as if the
Expansion Space was originally included as part of the Premises. Except as
otherwise expressly provided herein, all the terms of the Lease, as previously
amended by the Addendum, shall remain in full force and effect and shall not be
modified or otherwise effected by this Second Addendum. The parties acknowledge
that the Lease currently is in full force and effect, and that currently no
defaults exist thereunder.
8. ENTIRE AGREEMENT. This Second Addendum constitutes the entire
understanding of the parties hereto relating to the subject matter hereof, and
shall be binding upon, and inure to the benefit of, the parties hereto, their
successors and assigns. This Second Addendum may not be amended except by a
writing signed by all the parties hereto.
In Witness Whereof, the parties have signed this Second Addendum to Lease
Agreement effective this 22 day of February 2000.
(signature on next page)
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JEMAL'S/CAYRE 6010 EXECUTIVE BLVD. L.L.C.
By: /s/ Douglas Jemal
------------------------
Douglas Jemal, Authorized Member
INFORMAX, INC.
BY: /s/ Joseph E. Lehnen
------------------------
Chief Financial Officer
State of Maryland
------------------------
County of Frederick, ss
-------------------------
This instrument was acknowledged before me on this 29th day of
February, 2000, by Douglas Jemal, in his capacity as Authorized Member of
Jemal's/Cayre 6010 Executive Blvd. L.L.C.
/s/ Leslie V. Trimble
--------------------------
Notary Public
LESLIE V. TRIMBLE
SEAL NOTARY PUBLIC STATE OF MARYLAND
My Commission Expires My Commission Expires October 31, 2000
_____________________________
_____________________________, ss
This instrument was acknowledged before me on this 22nd day of
February, 2000, by ______________________ in his/her capacity
________________________________________________ of Informax, Inc.
/s/ Kimberly M. Barondess
----------------------------
KIMBERLY M. BARONDESS
SEAL NOTARY PUBLIC STATE OF MARYLAND
My Commission Expires My Commission Expires January 23, 2002
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EXHIBIT A
EXPANSION SPACE
4
<PAGE>
[GRAPHIC OMITTED]
<PAGE>
THIRD ADDENDUM TO LEASE AGREEMENT
This Third Addendum to Lease Agreement (the "Third Addendum") is made effective
as of the 19th day of May, 2000, by and among JEMAL'S/CAYRE 6010 EXECUTIVE BLVD.
L.L.C. ("Landlord") and INFORMAX, INC. ("Tenant");
Whereas, Landlord and Tenant executed an Office Lease Agreement dated March 31,
1999 (the "Lease") for Twelve Thousand Six Hundred Twenty Four (12,624) square
feet of space (the "Initial Premises") on the tenth floor of the Building
located at 6010 Executive Blvd., Rockville, Maryland (the "Building");
Whereas, by Addendum to Lease dated July 8, 1999 (the "Addendum"), the parties
amended the Lease by adding an additional 5,600 square feet of space to the
Premises (the "New Space"), increasing the total square footage of the Premises
to 18,224;
Whereas, by Second Addendum to Lease dated as of February 1, 2000 (the "Second
Addendum"), the parties amended the Lease by adding an additional 3,076 square
feet of space to the Premises (the "Expansion Space"), increasing the total
square footage of the Premises to 21,300 square feet;
Whereas, Tenant now wishes to lease additional space at the Building and
Landlord is willing to rent Tenant such additional space all in accordance with
the terms hereinafter set forth;
Now, Therefore, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. MODIFICATION TO LEASE. The terms of this Third Addendum shall be deemed to
modify and supplement the terms of the Lease as amended by the Addendum and
Second Addendum and in the event of any inconsistencies the terms of this Third
Addendum shall control. All references herein and in the future to the "Lease",
unless the context is clearly otherwise, shall be deemed to be the Lease as
amended by the Addendum, the Second Addendum and this Third Addendum. All
capitalized terms used herein shall have the meanings as set forth in the Lease,
unless otherwise expressly defined herein.
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<PAGE>
2. EXPANSION SPACE. Landlord hereby leases to the Tenant the additional space as
depicted on Exhibit A hereto as the "Third Expansion Space" being an additional
Three Thousand Seventy Six (3,076) square feet, including core factor, located
on the eighth (8th) floor at the Building. The Net Rentable Area of the
Expansion Space has been determined in the manner set forth in Section 1.01. H.
of the Lease. Hereafter, the "Net Rentable Area of the Premises" for all
purposes of the Lease shall be 24,376 square feet (being the sum of the Net
Rentable Area of (i) the Expansion Space; (ii) the New Space; (iii) the Initial
Premises; and the (iv) Third Expansion Space. The Tenant's Pro-Rata share under
the Lease after the date of this Third Addendum shall be 20.14%. All references
to Premises in the Lease, as amended by this Third Addendum, the Second Addendum
and the Addendum, "Premises", shall include the Initial Premises, the New Space,
the Expansion Space and the Third Expansion Space.
3. ANNUAL BASE RENT. Commencing on the first day of the Second Lease Year (as
defined in the Lease), the Base Rent for the Premises (which includes the New
Space, the Expansion Space, the Third Expansion Space and the Initial Premises)
shall be the sum of (i) the product of $24.98 multiplied by 21,300 square feet;
and (ii) the product of $28.50 multiplied by 3,076 (being the Net Rental Area of
the Third Expansion Space. Notwithstanding the foregoing, the portion of the
monthly Base Rent attributable to the Third Expansion Space shall be abated for
the period ending on the earlier of (i) 90 days from the date of final
execution of this Third Addendum; or (ii) the date the Third Expansion Space is
substantially completed sufficient to permit Tenant to occupy the Third
Expansion Space. The Base Rent shall be continued to be adjusted in the manner
set forth in the Lease.
4. ADDITIONAL SECURITY DEPOSIT. Upon execution by this Third Addendum, the
Tenant shall pay to Landlord the sum of $7,305.00, such amount to be added to
and become part of the "Deposit" under Section 7.01 of the Lease, as increased
under Paragraph 4 of the Addendum.
5. ADDITIONAL PARKING PERMITS. The number of parking permits set forth in
Section 3.01, as previously amended, is hereby increased form "53" to "60",
effective upon Tenant taking occupancy of the Third Expansion Space.
6. CONDITION OF THIRD EXPANSION SPACE. Construction of the Third Expansion Space
shall be undertaken and governed by the provisions of ARTICLE IV of the Lease,
including, but not limited to, the provisions for the payment by Landlord of a
$25.00 Allowance per rentable square foot of the Third Expansion Space. Landlord
shall allow Tenant to use the Allowance for the "Third Expansion Space" for the
completion of the improvements for the Initial Premises and/or the New Space or
the Expansion Space provided no portion of the Allowance attributable to the
Third Expansion Space shall be payable until after Tenant has taken occupancy of
the Third Expansion Space.
7. APPLICABILITY OF LEASE. Subsequent to the date of this Third Addendum, all
references in the Lease to the "Demised Premises" or "Premises" shall include
the Initial Premises as set forth in the Lease and the (i) New Space;
(ii) Expansion Space; and (iii) Third Expansion Space. It is the intent of the
parties that except as otherwise expressly provided herein, the use and
occupancy of the Third Expansion Space shall be subject to all the terms and
conditions of the Lease, as if the Third Expansion Space was originally included
as part of the Premises. Except as otherwise expressly provided herein, all the
terms of the Lease, as previously amended by the Addendum, and the Second
Addendum, shall remain in full force and effect and shall not be modified or
otherwise effected by this Third Addendum. The parties acknowledge that the
Lease currently is in full force and effect, and that currently no defaults
exist thereunder.
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<PAGE>
9. ENTIRE AGREEMENT. This Third Addendum constitutes the entire understanding of
the parties hereto relating to the subject matter hereof, and shall be binding
upon, and inure to the benefit of, the parties hereto, and their permitted
successors and assigns. This Third Addendum may not be amended except by a
writing signed by all the parties hereto.
In Witness Whereof, the parties have signed this Third Addendum to Lease
Agreement effective this 26th day of June 2000.
JEMAL'S/CAYRE 6010 EXECUTIVE BLVD. L.L.C.
By: /s/ Douglas Jemal
-----------------
Douglas Jemal, Authorized Member
INFORMAX, INC.
BY: /s/ Joseph E. Lehnen
--------------------
Chief Financial Officer 5/19/00
___________________
___________________ ss
This instrument was acknowledged before me on this 19th day of May, 2000, by
Douglas Jemal, in his capacity as Authorized Member of Jemal's/Cayre 6010
--------------- -------------------
Executive Blvd., L.L.C.
----------------------
/s/ Cecille A. Thorp
------------------
SEAL Notary Public
Cecille A. Thorp, Notary Public
Montgomery County
State of Maryland
My Commission Expires Feb. 18, 2004
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State of Maryland
-------------------
County of Frederick, ss
-------------------
This instrument was acknowledged before me on this 26th day of June, 2000, by
Douglas Jemal in his/her capacity as Managing Member of Informax, Inc.,
---------------- ---------------
Executive Blvd., 6010, LLC.
---------------------------
/s/ Leslie V. Trimble
---------------------
SEAL Notary Public
My Commission Expires
LESLIE V. TRIMBLE
NOTARY PUBLIC STATE OF MARYLAND
My Commission Expires October 31, 2000
EXHIBIT A
THIRD EXPANSION SPACE
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[GRAPHIC]
