This is an electronic filing of the exhibits filed on May 15,
1996, pursuant to a Rule 201 - Temporary Hardship Exemption.
Papers copies of the exhibits were filed with the Securities
and Exchange Commission under the cover of Form SE on May 15,
1996.
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
--------------
[ X ] Quarterly Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the quarterly period ended March 31, 1996
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the transition period from ______ to ______
Commission file number 0-19819
biosys, inc.
(Exact name of registrant as specified in its charter)
Delaware 94-2878645
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10150 Old Columbia Road, Columbia, Maryland 21046
(Address of principal executive offices) (Zip Code)
410-381-3800
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes XX No _____.
Indicate the number of shares outstanding of each of the issuers classes of
common stock, as of the last practicable date: 7,487,298 shares of the Company's
Common Stock (par value $0.001) were outstanding as of April 30, 1996.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
biosys, inc.
Date: May 15, 1996 By: /s/ Michael R.N. Thomas
----------------------------------- Michael R.N. Thomas
Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
<PAGE>
THIS DOCUMENT IS A COPY OF THE EXHIBIT 10.65 FOR THE 10Q FILED ON MAY 15,
1996, PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
As of April 1, 1996
VIA FACSIMILE AND HAND DELIVERY
Crop Genetics International Corporation
10150 Old Columbia Pike
Columbia, Maryland 21046
Attn: Dr. Edwin C. Quattlebaum, President
biosys, inc.
c/o Crop Genetics International Corporation
10150 Old Columbia Pike
Columbia, Maryland 21046
Attn: Dr. Edwin C. Quattlebaum, President
Re: $3,400,000.00 Maryland Industrial Development Financing Authority
Taxable Economic Development Revenue Bond Facility (Crop Genetics
International Corporation Facility)
Gentlemen:
Crop Genetics International Corporation and biosys, inc. (collectively, the
"OBLIGORS") have requested that The First National Bank of Maryland ("BANK")
agree to extend the time period for the OBLIGORS to perform under and fully
satisfy the terms and conditions of Section 8.2 (b) of that certain Second
Modification Agreement, dated October 2, 1995 ("SECOND MODIFICATION AGREEMENT"),
by and among the OBLIGORS, the Maryland Industrial Development Financing
Authority ("MIDFA") and the BANK, Section 2 of that certain Letter Agreement,
dated as of November 30, 1995, by and among the OBLIGORS, MIDFA and the BANK
("NOVEMBER 30 LETTER AGREEMENT"), Section 2 (a) of that certain Letter
Agreement, dated as of December 5, 1995, by and among the OBLIGORS, MIDFA and
the BANK ("DECEMBER 5 LETTER AGREEMENT"), Section 2 of that certain Letter
Agreement, dated as of January 31, 1996, by and among the OBLIGORS, MIDFA and
the BANK ("JANUARY 31 LETTER AGREEMENT"), and Section 2 of that certain LETTER
AGREEMENT dated as of March 15, 1996, by and among the OBLIGORS, MIDFA and the
BANK ("MARCH 15 LETTER AGREEMENT"). The BANK has now had an opportunity to
review the request submitted by the OBLIGORS, and in connection therewith, is
willing to agree as follows:
1. Definitions. All defined terms set forth or used in the SECOND
MODIFICATION AGREEMENT, the NOVEMBER 30 LETTER AGREEMENT, the DECEMBER 5 LETTER
AGREEMENT, the JANUARY 31 LETTER AGREEMENT, that certain Letter Agreement, dated
as of February 6, 1996, by and among the OBLIGORS, MIDFA and the BANK ("FEBRUARY
6 LETTER AGREEMENT"), and the MARCH 15 LETTER AGREEMENT, shall have the same
meaning in the event that such defined terms are used in this Letter Agreement
("LETTER AGREEMENT"). The term "BOND DOCUMENT", as used herein, shall mean and
include the BOND DOCUMENTS referenced in the SECOND MODIFICATION AGREEMENT , the
NOVEMBER 30 LETTER AGREEMENT, the DECEMBER 5 LETTER AGREEMENT, the JANUARY 31
LETTER AGREEMENT, the FEBRUARY 9 LETTER AGREEMENT , the MARCH 15 LETTER
AGREEMENT, this LETTER AGREEMENT, and all other documents evidencing, securing
or otherwise documenting the above-referenced credit facility. The term "MIDFA
INSURANCE AGREEMENT" as used herein, shall mean and include the MIDFA INSURANCE
AGREEMENT referenced in the SECOND MODIFICATION AGREEMENT, as modified and
extended pursuant to the terms and conditions of the NOVEMBER 30 LETTER
AGREEMENT, the DECEMBER 5 LETTER AGREEMENT, the JANUARY 31 LETTER AGREEMENT, the
FEBRUARY 6 LETTER AGREEMENT, the MARCH 15 LETTER AGREEMENT and this LETTER
AGREEMENT.
2. Extension of Deadline; No-Default. Subject to the terms and conditions
set forth herein, and provided no EVENT OF DEFAULT exists under any of the BOND
DOCUMENTS, and further provided that this LETTER AGREEMENT is executed and
delivered by the parties. hereto on or before 5:00 p.m. on Friday, April 5,
1996, the BANK agrees that the time period for the OBLIGORS to perform under and
fully satisfy the terms and conditions of Section 8 .2 (b) of the SECOND
MODIFICATION AGREEMENT, Section 2 of the NOVEMBER 30 LETTER AGREEMENT, Section 2
(a) of the DECEMBER 5 LETTER AGREEMENT, Section 2 of the JANUARY 31 LETTER
AGREEMENT and Section 2 of the MARCH 15 LETTER AGREEMENT shall be extended to
and until the earlier of: (a) 5:00 p.m. on May 1. 1996; or (b) the date when
Imperial Bank establishes and documents financial covenants for its outstanding
loan to biosys, inc. Furthermore, the OBLIGORS shall not be considered in
default under the BOND DOCUMENTS for having failed to satisfy the terms and
conditions of Section 8.2 (b) of the SECOND MODIFICATION AGREEMENT, Section 2 of
the NOVEMBER 30 LETTER AGREEMENT, Section 2 (a) of the DECEMBER 5 LETTER
AGREEMENT, Section 2 of the JANUARY 31 LETTER AGREEMENT and Section 2 of the
MARCH 15 LETTER AGREEMENT within the time periods prescribed therein.
3. Consent and Approval of MIDFA; Acknowledgment of Liability; Other
Agreements. MIDFA consents to and approves the terms and conditions of this
LETTER AGREEMENT and acknowledges and agrees that the MIDFA INSURANCE AGREEMENT
shall remain in place and in full force and effect, notwithstanding the BANK'S
execution of this LETTER AGREEMENT and the various agreements of the BANK as set
forth herein. MIDFA further acknowledges and agrees that as of the date of this
LETTER AGREEMENT, MIDFA has received all notices that it was entitled to receive
from the BANK under and pursuant to the MIDFA INSURANCE AGREEMENT, and that
MIDFA does not have any defense to or set-off or counterclaim against its
liability to the BANK under the MIDFA INSURANCE AGREEMENT. MIDFA also
acknowledges and agrees that pursuant to the terms and conditions of the MIDFA
INSURANCE AGREEMENT, MIDFA maximum liability to the BANK thereunder presently
equals and shall hereafter equal the lesser of: (a) the total amount of the
INDEBTEDNESS due and owing to the BANK under the BOND DOCUMENTS from time to
time, or (b) $3,000,000.00. Except as specifically modified herein, all other
terms, covenants and conditions set forth in the MIDFA INSURANCE AGREEMENT shall
remain unchanged, in full force and effect and are hereby ratified and confirmed
by MIDFA and the BANK in all respects.
4. Other Terms and Conditions; No Novation. Other than the foregoing, all
other terms, covenants and conditions set forth in the BOND DOCUMENTS shall
remain unchanged, in full force and effect and are hereby ratified, acknowledged
and confirmed by the OBLIGORS, MIDFA and the BANK in all respects, and the
OBLIGORS shall hereafter strictly comply with all of the terms, covenants and
conditions set forth in the BOND DOCUMENTS including, without limitation, the
payment terms set forth therein. This LETTER AGREEMENT shall not cause a
novation of any of the BOND DOCUMENTS, nor shall it extinguish, affect or impair
the OBLIGORS' or MIDFA'S respective obligations to the BANK under the BOND
DOCUMENTS. In addition, this LETTER AGREEMENT shall not release, affect or
impair the priority of any security interests or liens held by the BANK against
any assets of the OBLIGORS including, without limitation, the COLLATERAL.
5. Governing Law. The performance and construction of this LETTER AGREEMENT
and the other BOND DOCUMENTS S shall be governed by the laws of the State of
Maryland.
6. Amendment. This LETTER AGREEMENT may only be altered, modified or
amended by a writing executed by all of the parties hereto.
7. Time. Time is of the essence with respect to this LETTER AGREEMENT and
the terms and conditions hereof.
8. Tense Gender, Defined Terms, Captions, Effective Date, Execution in
Counterparts and Via Facsimile: Miscellaneous. As used herein, the plural shall
refer to and include the singular, and the singular the plural, and the use of
any gender shall include and refer to any other gender. All defined terms are
capitalized throughout this LETTER AGREEMENT. All captions are for the purpose
of convenience only. This LETTER AGREEMENT shall be executed and delivered by
the parties hereto on or before 5:00 p.m. on Friday, April 5. 1996, and the
effective date of this LETTER AGREEMENT shall be Monday, April 1, 1996. This
LETTER AGREEMENT may be executed and delivered in counterparts. Signed
counterparts may be delivered via facsimile, with all copies delivered via
facsimile to be deemed to have the same force and effect as if bearing original
signatures. As is indicated in the BOND DOCUMENTS, all costs, expenses and
attorneys' fees incurred or hereafter incurred by the BANK in connection with
the transactions referenced herein or otherwise in connection with the BOND
DOCUMENTS shall be the responsibility of the OBLIGORS and shall be paid for by
the OBLIGORS to the BANK in accordance with the terms and conditions of Section
21 of the FIRST MODIFICATION AGREEMENT referenced in the SECOND MODIFICATION
AGREEMENT.
9. Waiver of Jury Trial. The OBLIGORS, MIDFA and the BANK agree that any
suit, action or proceeding, whether claim or counterclaim, brought or instituted
by or against any of them, or any of their successors or assigns, on or with
respect to this LETTER AGREEMENT, or any other BOND DOCUMENTS, or which in any
way relates, directly or indirectly, to the respective obligations of any of the
parties hereto under any of the BOND DOCUMENTS, or the dealings of the parties
with respect thereto, shall be tried only by a court and not by a jury. THE
OBLIGORS, MIDFA AND THE BANK EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY
SUCH SUIT, ACTION OR PROCEEDING. The parties hereto acknowledge and agree that
this provision is a material aspect of the agreement between the parties and
that the BANK would not enter into this LETTER AGREEMENT if this provision, or
any other provision of this LETTER AGREEMENT were not contained herein.
If the terms and conditions set forth above are acceptable to the OBLIGORS,
the OBLIGORS should execute this LETTER AGREEMENT in the spaces designated,
should have their signatures appropriately attested to and notarized, should
cause this LETTER AGREEMENT to be executed by MIDFA, and also cause MIDFA's
signature to be appropriately attested to and notarized, and should return the
fully executed AGREEMENT, without modification, to my attention, on or before
5:00 p.m. on Friday, April 5, 1996. After 5:00 p.m. on Friday, April 5, 1996,
the offer of the BANK as set forth herein shall be withdrawn and of no further
force or effect, unless before such time, this LETTER AGREEMENT has been
executed by the OBLIGORS and MIDFA and returned to my attention as provided for
above.
Very truly yours,
THE FIRST NATIONAL BANK OF MARYLAND,
a national banking association
By: W. Blake Hampson (SEAL)
Vice President
<PAGE>
AGREED AND CONSENTED TO:
WITNESS/ATTEST: OBLIGORS
CROP GENETICS INTERNATIONAL
CORPORATION,
A Delaware Corporation
Sandra Soroka By: Michael R. N. Thomas
Title: Chief Financial Officer
Date: April 4, 1996
WITNESS/ATTEST: BIOSYS, INC.,
A Delaware Corporation
Sandra Soroka By: Michael R. N. Thomas
Title: Chief Financial Officer
Date: April 4, 1996
<PAGE>
STATE OF MARYLAND CITY/COUNTY OF ANNE ARUNDEL TO WIT:'
I HEREBY CERTIFY, that on this 5th day of April, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
Michael R. N. Thomas, who acknowledged himself to be the Chief Financial Officer
of BIOSYS, INC., a Delaware corporation, and who further acknowledged that he,
as such Chief Financial Officer, being authorized so to do, executed the
foregoing instrument for the purposes therein contained by signing the name of
BIOSYS, INC., by himself as Chief Financial Officer.
IN WITNESS MY Hand and Notarial Seal.
Sandra Soroka (SEAL)
NOTARY PUBLIC
My Commission Expires:
June 24, 1998
STATE OF ________________CITY/COUNTY OF ________________TO WIT:'
I HEREBY CERTIFY, that on this ______ day of __________, 1996, before me,
the undersigned, a Notary Public of the jurisdiction aforesaid, personally
appeared _____________, who acknowledged himself/herself to be the
________________of MARYLAND INDUSTRIAL DEVELOPMENT FINANCING AUTHORITY, a body
politic and corporate, and who further acknowledged that he/she, as such
________________, being authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of MARYLAND INDUSTRIAL
DEVELOPMENT FINANCING AUTHORITY, by himself/herself as MARYLAND INDUSTRIAL
DEVELOPMENT FINANCING AUTHORITY.
IN WITNESS MY Hand and Notarial Seal.
________________ (SEAL)
NOTARY PUBLIC
My Commission Expires:
___________________
<PAGE>
AGREED AND CONSENTED TO:
WITNESS/ATTEST: OBLIGORS
CROP GENETICS INTERNATIONAL
CORPORATION,
A Delaware Corporation
Sandra Soroka By: Edwin C. Quattlebaum
Title: President and Chief Executive Officer
Date: April 12, 1996
WITNESS/ATTEST: BIOSYS, INC.,
A Delaware Corporation
Sandra Soroka By: Edwin C. Quattlebaum
Title: President and Chief Executive Officer
Date: April 12, 1996
<PAGE>
WITNESS/ATTEST. MIDFA:
MARYLAND INDUSTRIAL DEVELOPMENT
FINANCING AUTHORITY,
A Body Politic and Corporate and
a Public instrumentality of the
State of Maryland
By: (SEAL)
Name:
Title:
Date:
ACKNOWLEDGMENTS
STATE OF MARYLAND CITY/COUNTY OF ANNE ARUNDEL TO WIT:'
I HEREBY CERTIFY, that on this 12th day of April, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
Edwin Quattlebaum, who acknowledged himself to be the President of CROP GENETICS
INTERNATIONAL CORPORATION, a Delaware corporation, and who further acknowledged
that he, as such President, being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of CROP
GENETICS INTERNATIONAL CORPORATION, by himself as President.
IN WITNESS MY Hand and Notarial Seal.
Sandra Soroka (SEAL)
NOTARY PUBLIC
My Commission Expires:
June 24, 1998
<PAGE>
STATE OF MARYLAND CITY/COUNTY OF ANNE ARUNDEL TO WIT:'
I HEREBY CERTIFY, that on this 12th day of April, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
Edwin Quattlebaum, who acknowledged himself to be the President of CROP GENETICS
INTERNATIONAL CORPORATION, a Delaware corporation, and who further acknowledged
that he, as such President, being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of CROP
GENETICS INTERNATIONAL CORPORATION, by himself as President.
IN WITNESS MY Hand and Notarial Seal.
Sandra Soroka (SEAL)
NOTARY PUBLIC
My Commission Expires:
June 24, 1998
STATE OF ________________CITY/COUNTY OF ________________TO WIT:'
I HEREBY CERTIFY, that on this ______ day of __________, 1996, before me,
the undersigned, a Notary Public of the jurisdiction aforesaid, personally
appeared _____________, who acknowledged himself/herself to be the
________________of MARYLAND INDUSTRIAL DEVELOPMENT FINANCING AUTHORITY, a body
politic and corporate, and who further acknowledged that he/she, as such
________________, being authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of MARYLAND INDUSTRIAL
DEVELOPMENT FINANCING AUTHORITY, by himself/herself as MARYLAND INDUSTRIAL
DEVELOPMENT FINANCING AUTHORITY.
IN WITNESS MY Hand and Notarial Seal.
________________ (SEAL)
NOTARY PUBLIC
My Commission Expires:
___________________
<PAGE>
WITNESS/ATTEST-. MIDFA:
MARYLAND INDUSTRIAL DEVELOPMENT
FINANCING AUTHORITY,
A Body Politic and Corporate and a
Public instrumentality of the State
of Maryland
By: Stephen J. Lynch (SEAL)
Name: Stephen J. Lynch
Title: Assistant Secretary of
Financing Programs
Date: April 4, 1996
ACKNOWLEDGMENTS
STATE OF ________________ CITY/COUNTY OF ________________ TO WIT:
I HEREBY CERTIFY, that on this ___ day of ______, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
________________, who acknowledged himself to be the ________________ of CROP
GENETICS INTERNATIONAL CORPORATION, a Delaware corporation, and who further
acknowledged that he, as such ________________, being authorized so to do,
executed the foregoing instrument for the purposes therein contained by signing
the name of CROP GENETICS INTERNATIONAL CORPORATION, by himself as President.
IN WITNESS MY Hand and Notarial Seal.
________________ (SEAL)
NOTARY PUBLIC
My Commission Expires:
____________________
<PAGE>
STATE OF _______________ CITY/COUNTY OF _______________ TO WIT:'
I HEREBY CERTIFY, that on this ___ day of _______, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally
____________, who acknowledged himself to be the __________ of BIOSYS, Inc., a
Delaware corporation, and who further acknowledged that he, as such President
and Chief Executive Officer, being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of BIOSYS,
Inc., by himself as President.
IN WITNESS MY Hand and Notarial Seal.
________________ (SEAL)
NOTARY PUBLIC
My Commission Expires:
____________________
STATE OF MARYLAND CITY/COUNTY OF BALTIMORE TO WIT:'
I HEREBY CERTIFY, that on this 4th day of April, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
Stephen J. Lynch, who acknowledged himself/herself to be the Assistant Secretary
of Financing Programs of the MARYLAND INDUSTRIAL DEVELOPMENT FINANCING
AUTHORITY, a body politic and corporate, and who further acknowledged that
he/she, as such Assistant Secretary of Financing Programs, being authorized so
to do, executed the foregoing instrument for the purposes therein contained by
signing the name of the MARYLAND INDUSTRIAL DEVELOPMENT FINANCING AUTHORITY, by
himself/herself as Assistant Secretary of Financing Programs.
IN WITNESS MY Hand and Notarial Seal.
Jane B. Sibez (SEAL)
NOTARY PUBLIC
My Commission Expires:
November 1, 1980
<PAGE>
TEXT>
THIS DOCUMENT IS A COPY OF THE EXHIBIT 10.66 FOR THE 10Q FILED ON MAY 15,
1996, PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
FIRST AMENDMENT TO
CONTRACT MANUFACTURING AGREEMENT
This First Amendment to Contract Manufacturing Agreement ("First
Amendment") is made this 16th day of April, 1996 by and between BIOSYS, a
Delaware corporation ("biosys"), and ARCHER-DANIELS-MIDLAND COMPANY, a Delaware
corporation ("ADM").
W I T N E S S E T H:
WHEREAS, biosys and ADM are parties to that certain Contract Manufacturing
Agreement dated December 2, 1993 (the "Agreement"); and
WHEREAS, biosys and ADM desire to amend the Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, it is agreed as follows:
1. The Agreement is amended, effective March 18, 1996, as follows:
a) Section 3.02 is deleted and, in lieu thereof, the following
is inserted as a new Section 3.02:
Fermentation Capacity. The biosys Facility shall have an
initial capacity of five (5) nominal 22,000 gallon (16,000
W/V) main fermenters, five (5) nominal 2,000 gallon seed
fermenters, and four (4) nominal 50 gallon propagation
fermenters. The biosys fermenters shall be designated
jointly by the parties.
b) In Section 4.02, second line, the words "or Omega 3 Fatty
Acid" are deleted.
c) Section 6.01 is amended by deleting the fees for 1996
through 2006 and beyond and, in lieu thereof, inserting the
following fees for the corresponding periods:
Year Annual Fee
1996 $2.825 million
1997 $3.125 million
1998 $3.750 million
1999 $4.375 million
2000 $4.375 million
2001 $4.375 million
2002 $4.675 million
2003 $4.675 million
2003 $4.675 million
2004 $4.675 million
2005 $5.0 million
2006 and beyond $4.065 million
d) Section 7.02 is deleted and, in lieu thereof, the following
is inserted as a new Section 7.02:
biosys agrees that ADM shall be the exclusive producer of
nematodes and their equivalent products for biosys through
1994, and for the North and South American sales beyond
1994. In the event sales of biosys' own Products during the
period January through June of any year would require an
expansion of the biosys Facility beyond that described in
Section 3.02, ADM shall use its best efforts to make such
expansion and to complete the same within twelve (12) months
after the decision is made that such expansion is required,
unless the existing 22,000 gallon nominal fermenters in
BioChem II are available for and can be used to accomplish
the expansion, in which case it shall be completed within
six (6) months of the decision to make such expansion.
Except at ADM's option, this expanded capacity shall be used
exclusively for the production of biosys' own Products.
biosys shall pay to ADM, on a monthly basis beginning
start-up of the expansion equipment, 1/12 of annual fee
equal to 40 percent of the expansion project cost.
2. Except as specifically modified herein, all provisions of the
Agreement shall remain in full force and effect without
alteration. IN WITNESS WHEREOF, the parties hereto have executed
this First Amendment on the date first written above.
BIOSYS ARCHER-DANIELS-MIDLAND COMPANY
By: Edwin C. Quattlebaum By:
Its: Chief Executive Officer Its: President - ADM BioProducts Division
<PAGE>
THIS DOCUMENT IS A COPY OF THE EXHIBIT 10.67 FOR THE 10Q FILED ON MAY 15,
1996, PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
SUB-LEASE AGREEMENT
BETWEEN
BIOSYS, INC.
CROP GENETICS INTERNATIONAL
CORPORATION
AND
GENE LOGIC, INC.
DATED MAY 2, 1996
<PAGE>
SUB-LEASE AGREEMENT
This Sub-Lease Agreement is executed this 2nd day of May, 1996, by and
between Gene Logic, Inc. (referred to as "Sub-Tenant"), a corporation organized
and conducting business under the laws of the State of Delaware and, Crop
Genetics International Corporation ("Crop"), and biosys, Inc. ("biosys"),
corporations organized and conducting business under the laws of the State of
Delaware, (collectively referred to as "Sub-Landlord"), and registered to
conduct business in the State of Maryland.
RECITALS
I. WHEREAS, M.O.R. XVIII Associates limited Partnership, a limited
partnership formed under the laws of the State of Maryland (referred to as
"Landlord") is the owner of a building containing approximately 75,500 square
feet (the "Building") constructed on land leased by Landlord and designated as
Parcel M-2 (the "Land") on the Plat entitled "Parcels M-2 and M-3, A
Resubdivision of Parcel M-1 Plat No. 5194", which plat is recorded among the
Land Records of Howard County, Maryland as Plat No. 5693. The Land contains
approximately 11 acres, is located at 10150 Old Columbia Road in the Rivers
Corporate Park (the "Park") in Columbia, Howard County, Maryland 21044 (the
"County"), and is more particularly shown on Exhibit A, attached hereto and
incorporated by reference herein and accepted by the parties. The Land, the
Building, the easements and rights appurtenant thereto (including those
established by certain declarations of covenants recorded prior hereto among the
Land Records of the County), and the sidewalks, areaways, parking areas,
driveways, loading areas, gardens and lawns surrounding the building and located
on the Land are collectively referred to as the "Leased Premises; "
II. WHEREAS, Sub-Landlord occupies the Leased Premises pursuant to a
lease between Crop and Landlord dated October 1, 1992 (the "Prime Lease"), a
copy of which is attached hereto as Exhibit B and incorporated by reference
herein and accepted by the parties. biosys has fully assumed with Crop all of
Crop's obligations pursuant to the Prime Lease;
III. WHEREAS, during its leasehold of the Leased Premises, Sub-Landlord
invested in leasehold improvements and equipment (which, to the extent the same
are personal property, are herein referred to as the "Leasehold Improvements")
which together with other assets were financed by a loan (referred to as the
"Loan") in the principal amount of Three Million Four Hundred Thousand Dollars
($3,400,000.00), evidenced by a Promissory Note (referred to as the "Note"),
dated December 7, 1994 payable to the First National Bank of Maryland (referred
to as the "Bank") from funds raised by the sale of bonds by the Maryland
Industrial Development Finance Authority (referred to as "MIDFA");
IV. WHEREAS, the Note is secured by: 1) a Security Agreement (referred to
as the "Security Agreement") dated December 7, 1994, by and between Sub-Landlord
and MIDFA, granting to MIDFA a security interest in certain of the Leasehold
Improvement; and, ii) two Collateral Assignments of Lease, dated December 7,
1994, by Sub-Landlord to and for the benefit of MIDFA assigning to MIDFA the
Sub-Landlord's leasehold interest in the Leased Premises (both collectively
referred to as the "Lease Assignments");
V. WHEREAS, Sub-Landlord, Bank and MIDFA entered into a Modification
Agreement, Guaranty Agreement and Post Closing Agreement in respect to the Loan,
Note, Security Agreement and Lease Assignments dated May 26, 1995, (all three
collectively referred to as the "Modification Documents"). Pursuant to the
Modification Documents, Sub-Landlord has executed an Assignment of Interest in
this Sub-Lease to the Bank and MIDFA, which is attached hereto and incorporated
by reference herein as Exhibit C and accepted by the Parties (all documents
evidencing, securing or governing the Loan, the Note, the Leasehold
Improvements, the Modification Documents, and the rights of the Bank and MIDFA
are referred to collectively as the "Security Documents"); and,
VI. WHEREAS, Sub-Tenant desires to sub-lease from Sub-Landlord a
portion of the Leased Premises (referred to as the "Sub-Leased Premises"), shown
on Exhibit D which is attached hereto and incorporated by reference herein and
accepted by the parties, totaling 9,600 net rentable square feet for a period of
time provided in Section 1 below (referred to as the "Term").
NOW THEREFORE, in consideration of these recitals and the consideration
set forth herein, Sub-Landlord does hereby sub-lease unto Sub-Tenant, and
Sub-Tenant does hereby lease from Sub-Landlord the Sub-Leased Premises pursuant
to the following terms and conditions.
1. Term and Extension. The Term is five (5) years beginning on the 1st day of
May, 1996 (the "Term Commencement Date") and ending on the 30th day of April,
2001 (the "Initial Term Expiration Date"). Sub-Tenant shall have the right to
extend the Term of this lease thereafter for succeeding additional periods of
one (1) year each (each an " Extension Term"), through the Term of the Prime
Lease, based on then current market rental rates for the Sub-Leased Premises, by
giving Sub-Landlord nine (9) months notice prior to the end of the Term or any
Extension Term hereof ("Notice").
Sub-Landlord and Sub-Tenant shall attempt to reach agreement on the then
current fair market rental rates for the Sub-Leased Premises during a period of
Ninety (90) days after SubLandlord receives the Notice. If they agree within
such Ninety (90) day period, they will amend this lease to state the current
market rent for the Extension Term. If they are unable to agree on the initial
monthly rent and rental increases for the Extension Term within such Ninety (90)
day period, the Sub-Lease shall expire at the end of the original Term or any
Extension thereof then in effect.
2. Rent, Space and Payment.
a. Sub-Leased Premises and Base Rent, Sub-Tenant shall make monthly
payments for the use of the Sub-Leased Premises (referred to as the "Monthly
Payments ") at the rate of Twenty-One Dollars and Fifty-Five Cents ($21.55) per
net rentable square foot per annum, full service, which shall be comprised of a
Base Rent of $14.75 ("Base Rent") per net rentable square foot, subject to
increase from time to time as provided in 2.b. below, and an initial rental year
estimate of operating costs of $6.80 per net rentable square foot ("Initial
Estimated Operating Costs"), which estimate shall be subject to increase as
provided in 2.c. below. The Sub-Leased Premises, for all purposes of this
Sub-Lease, shall be deemed by each of the Parties hereto as 9,600 net rentable
square feet measured by and agreed to by the Parties, resulting in an initial
Monthly Payment of Seventeen Thousand Two Hundred Forty Dollars ($17,240.00) for
the first rental year hereunder. Monthly Payments shall be prorated for partial
months; and shall be payable in advance monthly by the first day of each month.
b. Annual Increase in Base Rent. Commencing on May 1, 1998, and continuing
on the anniversary of the Term Commencement Date during each year of the Term,
the Base Rent shall increase annually by Three Percent (3 %).
c. Payment of Operating Costs. For each Operating Year (defined below),
Sub-Tenant shall pay to Sub-Landlord, in the manner provided herein,
Sub-Tenant's Proportionate Share (defined below) of Actual Operating Costs
(defined below), which Sub-Tenant's Proportionate Share shall be computed by
multiplying the Actual Operating Costs for the Operating Year by Sub-Tenant's
Proportionate Share (defined as the total square feet of Sub-Leased Premises
divided by 75,500 square feet of Leased Premises); provided, however, that
Sub-Tenant's Proportionate Share of Actual Operating Costs shall be prorated for
partial Operating Years in the Term, if any.
(1) Actual Costs. Within 120 days following the end of the first Operating
Year, SubLandlord shall provide Sub-Tenant a statement of Actual Operating Costs
incurred during the first Operating Year and Sub-Tenant's Proportionate Share
thereof. Within 30 days of its receipt of said statement of said Actual
Operating Costs, Sub-Tenant will pay to Sub-Landlord its Proportionate Share
thereof, less a credit of the total Initial Estimated Operating Costs for the
first Operating Year (computed at the rate of $6.80 for each square foot of Sub
Leased Premises).
(2) Estimated Payments. During each Operating Year or partial Operating
Year following the first Operating Year in the Term, in addition to the Monthly
Payment , Sub-Tenant will pay to Sub-Landlord on the first day of each month an
amount equal to 1/12 of the product of SubTenant's Proportionate Share
multiplied by Sub-Landlord's Estimated Increased Operating Costs (defined below)
for such Operating Year ("Estimated Increased Operating Costs"). Estimated
Increased Operating Costs for any Operating Year is defined as Sub-Landlord's
reasonable estimate of Actual Operating Costs for such Operating Year less the
Base Operating Costs (which is defined to be the total Operating Costs for the
first Operating Year of the Sub-Lease). Estimates prepared by Sub-Landlord shall
be delivered to Sub-Tenant Thirty (30) Days prior to the commencement of each
Operating Year. If, however, Sub-Landlord fails to furnish any such estimate
prior to the commencement of an Operating Year, then Sub-Tenant will continue to
make payments of Estimated Increased Operating Costs it was making at the end of
the prior Operating Year, if any. Within Thirty days following Sub-Tenant's
receipt of Sub-Landlord's revised Estimated Increased Operating Costs,
Sub-Tenant will pay to Sub-Landlord for each month which has elapsed since the
beginning of the applicable Operating Year, the difference between the amount
payable based upon the revised Estimated Increased Operating Costs and the
amount paid to date by Sub-Tenant.
(3) Annual Settlement. Within 120 days after the end of each Operating
Year, SubLandlord shall deliver to Sub-Tenant a statement of Actual Operating
Costs and of amounts payable under this Section 2c for such Operating Year,
prepared and certified by Sub-Landlord. If such statement shows an amount owing
by Sub-Tenant that is less than the estimated payments previously made by
Sub-Tenant for such Operating Year, the excess at the option of Sub-Tenant shall
be refunded by Sub-Landlord within Thirty (30) days following Sub-Tenant's
election or credited against the next payment of rent; however, if the Term has
ended, Sub-Landlord shall refund the excess to Sub-Tenant. If such statement
shows an amount owing by Sub-Tenant that is more than the estimated payments
previously made by Sub-Tenant for such Operating Year, Sub-Tenant will pay the
deficiency to landlord within Thirty (30) days after the delivery of such
statement.
(4) Verification. Actual Operating Costs shall be calculated using
generally accepted accounting principles consistently applied and the statement
or invoice therefor certified by SubLandlord. Sub-Tenant will be entitled
annually during the Term hereof and upon reasonable notice to Sub-Landlord to
audit and verify, at its sole cost and expense, the operations of the SubLeased
Premises and Building and the related books and records of Sub-Landlord to
assure that the Operating Costs reported by Sub-Landlord are in keeping with the
provisions of this SubLease. In the event of any error, Sub-Landlord shall make
a correcting payment in full to the Sub-Tenant within 30 days after the
determination of the amount of such error.
For purposes of this Sub-Lease, the term "Actual Operating Costs" means all
reasonable costs of maintenance of the Building, wages, salaries and
compensation of employees, janitorial, maintenance, guard and other services
provided for the Building, power, water, waste disposal, and other utilities
provided to the Building, materials, supplies and repairs provided for the
Building and insurance for the Building.
Actual Operating Costs shall not include:
(1) Wages, salaries, fees, and fringe benefits paid to administrative or
executive personnel or officers or partners of Sub-Landlord or
Landlord unless employed at competitive rates as independent
contractors;
(2) Any charge for depreciation of the Building or equipment and any
interest or other financing charge;
(3) Any charge for Sub-Landlord's or Landlord's income taxes, excess
profit taxes, franchise taxes, or similar taxes on landlord's
business;
(4) All costs relating to activities for the solicitation and execution of
leases of space in the Building and leasing costs, including brokerage
commissions, legal fees, vacancy costs, and refurbishment or
improvement expenses relating to the solicitation and execution of
leases;
(5) All costs for which Sub-Tenant or any other tenant in the Building is
being charged other than pursuant to this Actual Operating Cost
clause;
(6) The cost of any repair made by Sub-Landlord or Landlord because of the
total or partial destruction of the building or the condemnation of a
portion of the Building;
(7) The cost of any items for which Sub-Landlord or Landlord is reimbursed
by insurance or otherwise compensated by parties other than tenants of
the building pursuant to clauses similar to this section;
(8) The cost of any additions or capital improvements to the Building
subsequent to the date of original construction;
(9) The cost of any repairs, alterations, additions, changes,
replacements, and other items that under generally accepted accounting
principles are properly classified as capital expenditures to the
extent they upgrade or improve the Building as opposed to replace
existing items that have worn out;
(10) Any operating expense representing an amount paid to a related
corporation, entity, or person that is in excess of the amount that
would be paid in the absence of such relationship;
(11) The cost of tools and equipment used initially in the construction of
the Building;
(12) The cost of any work or service performed for or facilities furnished
to any tenant of the Building to a greater extent or in a manner more
favorable to such tenant than that performed for or furnished to
tenant;
(13) The cost of alterations of space in the Building leased to other
tenants; and
(14) The cost of overtime or other expense to Sub-Landlord in curing its
defaults or performing work expressly provided in this Sub-Lease to be
borne at landlord's expense;
(15) any and all loan payments, principal or interest, or ground lease,
equipment lease, tenant improvement costs or similar payments;
(16) any and all collection costs, including legal fees and bad debt losses
or reserves;
(17) any otherwise permissible fees or costs, to the extent in excess of
prevailing and competitive rates; and
(18) any documentary transfer taxes imposed in connection with the lease or
any other lease.
For purposes of this Section, "Operating Year" means each one year period
beginning on May 1 and ending on April 30 and the term "Base Operating Costs"
means the Actual Operating Costs for the first Operating Year following the
Commencement Date.
d. Payment and Proration of Rent. All payments of Base Rent due hereunder
shall be paid to Sub-Landlord by the first day of each month, and other payments
due hereunder shall be paid within thirty (30) days of Sub-Tenant's receipt of
notice of such from Sub-Landlord, at the address designated for notice to
Sub-Landlord herein, or as otherwise designated by Sub-Landlord. Payments for
Rent shall be adjusted for any period of less than a full month, calculated from
the beginning of said month. Sub-Tenant shall pay, a late charge based on a rate
of eighteen percent (18%) per annum on any amount in arrears.
e. Option to Lease Additional Space). Sub-Tenant shall have an Option to lease
the additional laboratory and office space ("Additional Space") set forth in
Exhibit E hereto, at the then current fair market rent for the Additional Space
determined as of the time it executes said option; provided that such Additional
Space will not be available to Sub-Tenant for occupancy prior to May 1, 1998,
unless earlier provided for by Sub-Landlord, in its sole and unreviewable
discretion, and further provided, that such Option must be exercised on or
before August 1, 1997.
Sub-Landlord and Sub-Tenant shall attempt to reach agreement on the
current fair market rental rates for the Additional Space during a period of
Ninety (90) days after Sub-Landlord receives the Notice. If they agree within
such Ninety (90) day period, they will amend this lease to state the current
market rent for the Extension Term. If they are unable to agree on the initial
monthly rent and rental increases for the Extension Term within such Ninety (90)
day period, then Sub-Tenant's option to lease said Additional Space shall
expire, unless further extended by the Sub-Landlord, in its sole and
unreviewable discretion.
f. Security Deposit. Sub-Tenant shall pay as security deposit for its
occupancy of the SubLeased Premises the sum of Forty-Seven Thousand Three
Hundred Eighty-Seven Dollars and 49 Cents ($47,387.49), representing three (3)
months rent; provided, that Sub-Landlord agrees to deposit said security deposit
into an interest bearing account for the benefit of Sub-Tenant, and further
provided, that one-third (1/3) of the amount so deposited will be returned to
Sub-Tenant, along with any interest accrued thereon, on May 1, 1997, that an
additional one-third (1/3) of the amount so deposited will be returned to
Sub-Tenant, along with any interest accrued thereon, on May 1, 1998, with the
balance of the Security Deposit to remain on deposit for remainder of the Term
or Extension Term hereof, except that Sub-Tenant shall be tendered accrued
interest on the remaining Security Deposit thereafter on each anniversary date
thereof. Upon termination of the Sub-Lease, the security deposit shall be
returned to Sub-Tenant, with all accrued interest thereon, following deductions
for repairs and damage for which Sub-Tenant is responsible under the terms of
this Sub-Lease.
3. Condition and Use of Sub-Leased Premises.
a. Inspection of Sub-Leased Premises. Seventy-Two (72) hours prior to
Sub-Tenant's occupancy of the Sub-Leased Premises, Sub-Landlord and Sub-Tenant
shall inspect the SubLeased Premises for purposes of reviewing the condition of
the Sub-Leased Premises and identifying any of Sub-Landlord's property, if any,
which is to be removed therefrom prior to Sub-Tenant's occupancy.
b. Acceptance of Sub-Leased Premises. Except as otherwise provide herein, Sub-
Tenant shall accept the Sub-Leased Premises "As Is" condition for the purposes
for which Sub-Tenant intends to use and occupy the Sub-Leased Premises.
c. Use. Sub-Tenant shall not use or permit the use of any portion of the Sub-
Leased Premises for any purpose other than stated in Exhibit F hereto.
d. Requirements of Law. Sub-Tenant shall, at the sole cost and expense of
Sub-Tenant, observe and comply with all laws, requirements, rules, orders,
ordinances and regulations of any governmental, quasi-governmental entity or of
the local Board of Fire Underwriters applicable to its particular use of any
portion of the Sub-Leased Premises.
e. Condition of premises. Sub-Tenant shall at all times during the Lease term
take good care of and keep the Sub-Leased Premises in good order and condition.
Sub-Tenant shall not commit or suffer any waste to or of the Sub-Leased Premises
and will assign responsibility for all maintenance and repair, regardless of the
nature, pertaining to the Sub-Leased Premises. SubLandlord shall be responsible
for maintaining the improvements, fixtures, and equipment of the Building
(including, but not limited to, the walls, windows, doors, pipes , plumbing,
water and sewer connections, heating and air conditioning equipment and
machinery, and electrical works of the Building) in good order and condition.
f. Sub-Tenant's Failure to Perform. In the event that Sub-Tenant shall fail, a
(15) days written notice from Sub-Landlord, to keep the Sub-Leased Premises in
the state of condition and repair required by this Sub-Lease, to do any act;
make any payment; this lease, Sub-Landlord may (at its option, but without being
required to do so) immediately, or at any time thereafter and without notice,
perform the same for the account of Sub-Tenant (including, but not limited to,
entering upon the Sub-Leased Premises upon reasonable prior written notice to
Sub-Tenant and in the presence of an employee of Sub-Tenant, unless such entry
is on an emergency basis, to make repairs). All rights given to Sub-Landlord in
this Section shall be in addition to any other right or remedy of Sub-Landlord
herein contained.
g. Environmental Assurances/Obligations.
(1) Sub-Tenant, covenants and warrants, on behalf of itself, its employees,
agents, contractors, and/or invitees:
(a) that it will not cause or keep in, upon, or about the
Sub-Leased Premises any Hazardous Substances (defined below),
except as permitted below, or in a manner which will contravene
Sub-Landlord's or Landlord's policies of insurance insuring
against loss or damage by fire or other hazards (including,
without limitation, public liability), or which, will prevent
Sub-Landlord and/or Landlord from procuring such policies in
companies and at premium rates acceptable to Sub-Landlord and/or
Landlord, in their sole and unreviewable discretion.
(b) to comply with all obligations imposed by any applicable law,
and regulations promulgated thereunder, and all other
restrictions and regulations upon the Generation of Hazardous
Substances by Sub-Tenant at, to or from the Sub-Leased Premises;
(c) to deliver promptly to Sub-Landlord and Landlord true and
complete copies of all notices received by Sub-Tenant from any
governmental authority with respect to the Generation by
Sub-Tenant of Hazardous Substances (whether or not at, to or from
the Leased Premises);
(d) to complete fully, truthfully and promptly any questionnaires
sent by SubLandlord or Landlord with respect to Sub-Tenant's use
of the Sub-Leased Premises and SubTenant's Generation of
Hazardous Substances;
(e) to permit entry onto the Sub-Leased Premises by Sub-Landlord,
Sub-Landlord's representatives, or Landlord at any reasonable
time to verify and monitor Sub-Tenants compliance with its
representations, warranties and covenants set forth in this
Section;
(f) to pay to Sub-Landlord or Landlord, as additional rent, the
costs Incurred by Sub-Landlord or Landlord hereunder, including
the costs ofsuch monitoring and verification; and
(g) to fumish to Sub-Landlord and Landlord, at the expiration of
the Term or at the sooner termination of the Term as herein
provided, a certification to Sub-Landlord and Landlord,
equivalent to that provided by Sub-Landlord below, from an
environmental audit company acceptable to Sub-Landlord and
Landlord to the effect that, based upon an inspection conducted
by such environmental audit company not more than thirty (30)
days prior to the expiration or termination of the Term, the
Sub-Leased Premises are free from Hazardous Substances.
(h) to obtain its own Hazardous Waste Generator Site Number from
the applicable Federal, State or Local authorities and will
provide Sub-Landlord and Landlord with proof of such compliance
as a pre-condition to its commencement of occupancy hereunder.
(i) to obtain its own Radioactive Use Permit from applicable
Federal, State and Local authorities, and will provide
Sub-Landlord and Landlord with proof of such compliance as a
pre-condition to its commencement of occupancy hereunder.
(j) to store any hazardous waste, environmentally sensitive
materials, radioactive waste, or compressed gas in Sub-Landlord
and Landlord approved storage areas within the Sub-Leased
Premises and in no other area. Sub-Tenant will be responsible for
the costs of any tenant improvements associated with the creation
of such storage areas within the Sub-Leased Premises.
(k) to contact the appropriate local government authority for any
necessary sewer discharge permits and, will provide Sub-Landlord
and Landlord with proof of such compliance as a pre-condition to
its commencement of occupancy hereunder.
(1) to designate a company safety director / contact prior
to occupancy of the SubLeased premises. The Sub-Tenant's
safety director will be the primary contact for
SubLandlord's safety director regarding compliance audits
and evacuation drills.
(2) Sub-Tenant's Indemnification. Sub-Tenant agrees to indemnify and hold
harmless SubLandlord and Landlord and their respective assignees, from and
against any and all costs, fees or expenses (including, without limitation,
environmental assessment, investigation and environmental remediation
expenses, third party claims and environmental impairment expenses and
reasonable attomeys' fees and expenses) incurred by Sub-Landlord, Landlord,
or their respective assignees, as a result of any Generation of hazardous
Substances at, to or from the Leased Premises during the term of
Sub-Tenant's use or occupancy thereof or otherwise as a result of any act
or omission), Sub-Tenant, or as a result of any failure by Sub-Tenant to
comply with its representations, warranties and covenants as set forth in
this Section.
(3) Sub-Landlord's Indemnification. Sub-Landlord agrees to indemnify,
defend and hold harmless Sub-Tenant from and all claims (including, without
limitation, environmental assessment, investigation and environmental
remediation expenses, third party claims and environmental impairment
expenses) incurred by Sub-Tenant in connection with Sub-Landlord's
Generation of Hazardous Substances at, to or from the Leased Premises
during or prior to the Commencement date of the Term.
(4) Definition of Hazardous Substance. The term "Hazardous Substance" means
any pollutant, contaminant, toxic or hazardous waste, infectious waste,
oil, petroleum products and their by-products, dangerous substance,
potentially dangerous substance, noxious substance, toxic substance,
flammable, explosive, radioactive material, urea formaldehyde foam
insulation, asbestos, PCB'S, or any other substances the removal of which
is required, or the manufacture, preparation, production, generation, use,
maintenance, treatment, storage, transfer, handling or ownership of which
is restricted, prohibited, regulated, penalized by or subject to any and
all federal, state, county, or municipal statutes or laws now or at any
time hereafter in effect, including but not limited to, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. ss.ss.
9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. ss.ss.
1801 et seq), the Resource Conservation and Recovery Act (42 U.S.C. ss.ss.
6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. ss.ss.
1251 et seq.), the Clean Air Act (42 U.S.C. ss.ss. 7401 et seq.), the Toxic
Substances Control Act, as amended (15 U.S.C. ss.ss. 2601 et seq.), the
Occupational Safety and Health Act (29 U.S.C. ss.ss. 651 et seq.), the
Maryland Environment Code Ann. ss.4-411(3)(i), as amended from time to
time, and regulations promulgated thereunder; the Maryland Environrnent
Code Ann., Title 7, subtitle 2, as amended from time to time, and
regulations promulgated thereunder; the Maryland Environment Code Ann. ss.
9-227, as amended from time to time, and regulations promulgated
thereunder, as these laws have been amended or supplemented The term "To
Generate" means to use, collect, generate, store, transport, treat or
dispose of.
(5) Sub-Landlord Warranties and Representations.
(a) With regard to the Subleased Premises and the rest of the
Building and any adjoining property to which Sub-Landlord has
title or control ("Total Premises") SubLandlord covenants,
represents and warrants to Sub-Tenant that to the best of its
knowledge and understanding:
1. As of the Commencement Date of this Sub-Lease,
Sub-Landlord and the Leased Premises are each in substantial
compliance with all federal, state, county or municipal
environmental, pollution, health, safety, fire, or building
code laws, and Sub-Landlord has no knowledge and has
received no notice of any federal, state, county or
municipal enviromental, pollution, health, safety, fire, or
building code violations or requirements to clean up or
decontaminate the Property.
2. Neither the Sub-Landlord nor any owner of the Property,
have been named as a party in any proceeding or lawsuit for
violation of federal, state, or local environmental laws.
3. The Leased Premises are not currently subject to
investigation for alleged federal, state, county or
municipal environmental, pollution, health, safety, fire, or
building code violations.
(6) Disposal of Hazardous Substance. Upon the termination of this Sub-Lease
and the tenancy created thereby, Sub-Tenant will cease to Generate and/or
store Hazardous Substances, and will make necessary and appropriate
arrangements for the removal of same and their wastes from the Sub-Leased
Premises prior to its surrender of said Sub-Leased Premises to SubLandlord,
in compliance with applicable laws.
(7) Sub-Tenant's obligations regarding Hazardous Substance Generation,
storage and disposal hereunder, shall be limited to those Hazardous
Substances Generated by Sub-Tenant or otherwise Generated at or from the
Subleased Premises from the Commencement Date hereof up to and through the
date of termination or expiration of the Sub-Lease or any Extension thereof
and not thereafter, except as required by law.
(8) Each Party's respective covenants, warranties, representations,
indemnification, defense and hold harmless obligations under this
Subsection (g) shall survive expiration and/or termination of this
Sub-Lease.
h. Restrictions On Use In Prime Lease.
(1) Sub-Tenant acknowledges that it has received and reviewed the Prime
Lease and those covenants and restrictions affecting the use of the Leased
Premises set forth in the Prime Lease and agrees to maintain and use the
Sub-Leased Premises in accordance with those limitations and to be bound in all
respects by the terms, conditions, covenants and restrictions of the Prime
Lease, subject, however, to Sub-Landlord's representation and warranty to
Sub-Tenant that the Sub-Tenant's uses of the Sub-Leased Premises as specified in
Exhibit F of this Sub-Lease do not contravene such Prime Lease. Notwithstanding
anything to the contrary, in no event shall the provisions of the Prime Lease
dealing with Rent (Basic or Additional), insurance, tenant improvements,
security or any other payment, performance or guarantee obligations thereof
apply to this Sub-Lease and it is agreed and understood that Subtenant's payment
and performance obligations are governed solely by the express terms of this
Sub-Lease.
(2) the Sub-landlord covenants and warrants to Sub-Tenant that it has
obtained the all consents from the Landlord, the Bank and MIDFA which are
necessary for Sub-Landlord to enter into this Sub-Lease Agreement.
i. Parking. Sub-Tenant shall be provided surface parking for employee, visitor
and guest parking, at no cost to Sub-Tenant, for up to 40 cars, on a first-come
first-serve use, based on Sub-Tenant's pro-rated share of space under the
Sub-Lease.
j. Signs. Sub-Landlord and Sub-Tenant agree to place an identifying marker on
the existing sign location in the front parking lot which is part of the Leased
Premises ("Joint Sign") and on a small Joint corner marker to be located at the
left front of the building. The Joint Sign shall bear the names "biosys/Gene
Logic, Inc.," or some reasonable facsimile thereof, as agreed to by the Parties,
and Sub-Landlord shall provide Sub-Tenant a $500.00 credit toward the creation
of said Joint Sign, with the expenses above $500.00 to be evenly split by
Sub-Tenant and Sub-Landlord. Sub-Tenant's sign shall comply in all respects to
state, county, HRD and all other regulations or requirements governing such use
and must be approved in advance by Sub-Landlord and Landlord.
k. Services.
Sub-Landlord shall furnish or cause the Sub-Leased Premises to be
furnished with:
(1) electricity for lighting and the operation of the Occupied Premises and
otherwise sufficient electricity for equipment of Lessee installed or allowed
pursuant to this Lease;
(2) heat and air conditioning reasonably required for the comfortable
occupation of the Occupied Premises during Normal Business Hours (8:30 a.m. to
5:30 p.m);
(3) access to the Building and parking facilities at all times;
(4) lighting replacement (for Building standard lights), during Normal
Business Hours;
(5) hot and cold water and restroom supplies and cleaning;
(6) cleaning and char service in the Occupied Premises during the times and
in the manner that
those services are furnished by Sub-Landlord in its own Premises;
Sub-Landlord grants Sub-Tenant, its employees, invitees, licensees and
other visitors the right to use the common areas of the Building and the
property covered by the Prime Lease (including, without limitation, parking
areas, sidewalks, and corridors). Sub-Landlord agrees to maintain and
repair the common areas throughout the term and any extension of the
SubLease; and to maintain public liability insurance for injuries and
damage occurring in the conunon areas in such amounts as required under the
provisions of the Prime Lease. Notwithstanding anything to the contrary,
Sub-Landlord shall not close or change the common areas in a way as to
alter or diminish the quantity, quality, utility or character thereof or
limit Sub-Tenant's ease of access to or use of its Sub-Leased Premises,
except in the event of a bona fide emergency on a temporary basis, and then
in a manner which minimizes any adverse impact on Sub-Tenant.
Any failure by Sub-Landlord to furnish the foregoing services,
resulting from circumstances beyond Sub-Landlord's reasonable control or
from interruption of such services due to repairs or maintenance, shall not
render Sub-Landlord liable in any respect for damages to either person or
property, ilor be construed as an eviction of Sub-Tenant, nor cause an
abatement in rent hereunder, nor relieve Sub-Tenant from any of its
obligations hereunder. If any public uti 'lity or governmental body shall
require Sub-Landlord or Sub-tenant to restrict the consumption of any
utility or reduce any service for the Sub-Lease Premises, Sub-Landlord and
Sub-Tenant shall comply with such requirements, whether or not the
utilities and service referred to in this Section k. are thereby reduced or
otherwise affected, without any liability on the part of SubLandlord to
Sub-Tenant or any other person or any reduction or adjustment in rent
payable hereunder. Notwithstanding the foregoing, if the interruption of
such services shall continue for more than forty (40) consecutive days from
the date of the initial interruption, Sub-Tenant's sole remedy shall be the
right to terminate this Sub-Lease.
4. Insurance. Sub-Tenant shall maintain commercial general liability insurance
in respect to its occupancy and use of the Sub-Leased Premises, naming the
Sub-Landlord and Landlord as additional insureds, which insurance shall be in an
amount not less than $2,000,000.00 per occurrence and $5,000,000.00 in the
aggregate.
Sub-Tenant shall maintain at all times all risk personal property
insurance, written at replacement cost value and with replacement cost
endorsement covering Sub-Tenant's property, the property of Sub-Landlord and the
property of the Landlord located in the Sub-Leased Premises and covering loss of
income resulting from casualty, which insurance shall name Sub-Landlord or
Landlord, as the case may be, as the loss payee with regard to the property of
such entity .
Sub-Tenant shall maintain worker's compensation insurance or similar
insurance policy offering statutory coverage and containing statutory limits,
which policy shall also provide Employer's Liability Coverage of not less than
Five Hundred Thousand Dollars ($500,000.00) per occurrence.
Sub-Tenant shall require any construction contractor retained by it and
approved by SubLandlord and Landlord to perform work on the Sub-Leased Premises
to carry and maintain, at no expense to Sub-Landlord, during such time as
contractor is working in the Sub-Leased Premises, a commercial general liability
insurance policy in an amount not less than $1,000,000 per occurrence and
$2,000,000 in the aggregate and worker's compensation insurance or similar
insurance in form and amounts required by law.
At all times throughout the term of this Lease, Sub-Landlord will maintain
in effect such insurance as required under Section 9 of the Prime Lease.
5. Mechanics' and Materialmen's Liens and Other Liens. Sub-Tenant shall
discharge or bond off, within Ten (10) days after the date it receives notice of
filing, any mechanics' or materialmen's liens filed against the Sub-Leased
Premises (or Sub-Tenant's interest therein), or any part thereof, purporting to
be for work or material furnished or to be furnished to Sub-Tenant, and it will
provide Sub-Landlord notice of any such liens within Five (5) days that notice
of such is received by Sub-Tenant.
6. [Intentionally Omitted]
7 Right of Entry.
a. Access by Sub-Tenant. Sub-Landlord agrees to furnish Sub-Tenant with
keys to the exterior doors on the western-side of the building which will
allow Sub-Tenant direct access to all portions of the Sub-Leased Premises
twenty-four hours a day, seven days a week. Sub-Tenant shall bear any
costs associated with the separate zoning of the currently installed
security system in the building to cover only the Sub-Leased Premises and
upon approval Sub-Tenant shall pay the reasonable costs thereof.
b. Access by Sub-Landlord, Sub-Landlord, Landlord or their respective
agents shall have the right to enter the Sub-Leased Premises at all
reasonable times for the purpose of inspection or by reason of the
requirements of public authorities; provided, however, SubLandlord or
Landlord, as the case may be, shall provide reasonable notice of any such
inspections, to the extent possible.
8. [Intentionally Omitted].
9. Ownership of Improvements to Sub-leased Premises and Equipment Therein.
(1) Sub-Tenant agrees that it will not undertake any structural or
non-structural alterations of any of the improvements erected upon the
Sub-Leased Premises, nor construct any new structures or improvements upon
the Sub-Leased Premises, without the prior written consent of Sub-Landlord
and Landlord following Sub-Tenant's submission to Sub-Landlord of plans and
specifications with respect thereto, which consent shall not be
unreasonably withheld by Sub-Landlord and Landlord so long as such
alterations will not materially change the character of the existing
improvements or weaken or impair the structural integrity or lessen the
value of the existing improvements. In all other cases, Sub-Landlord and
Landlord's consent shall be given solely within Sub-Landlord and Landord's
discretion. Sub-Tenant shall deliver to Sub-Landlord a certificate of
occupancy when required by law, as a condition precedent to the use of the
improvements for their designated purpose. Upon completion of any new
structural improvements, Sub-Tenant shall deliver to Sub-Landlord and
Landlord a set of the "as built" plans.
(2) Sub-Tenant shall maintain the construction site in a neat and
orderly manner and shall be responsible, at its sole cost and expense, for
removing all construction debris.
(3) All such work, other than movable furniture or trade fixtures,
done by SubTenant upon the Sub-Leased Premises, shall be the property of
the Landlord at the termination of this Sub-Lease; provided, however, that
Sub-Landlord or Landlord may require Sub-Tenant to remove all or any part
of said work at the expiration of this Sub-Lease, in which event such
removal shall be done at Sub-Tenant's sole cost and expense. SubTenant
shall, at its sole cost and expense, repair any damage to the Sub-Leased
Premises and/or the Building caused by such removal or by the removal of
this personalty. Notwithstanding the foregoing, Sub-Landlord and Sub-Tenant
hereby agree that SubLandlord and Landlord will make a determination of
whether any such work must be removed by Sub-Tenant at the time
Sub-Landlord and Landlord review the proposed plans and specifications for
such work, and such determination shall be binding on Sub-Landlord,
Landlord and Sub-Tenant. To the extent that Sub-Landlord and Landlord
determine that any offices or laboratories to be constructed by Sub-Tenant
could be used by a subsequent subtenant and would not hinder the Landlord's
ability to re-lease the Building in the general marketplace for offices and
laboratories, Sub-Landlord and Landlord will not require that the same be
removed by Sub-Tenant upon the expiration of the Lease Term, which
determination will be made by Sub-Landlord or Landlord as an exercise of
their unreviewable discretion, as the case may be.
(4) Any and all laboratory equipment, furniture and other personal
property ("Property") contained in the Sub-Leased Premises, and as
reflected in the inventory attached hereto as Exhibit G, is the property of
the Sub-Landlord or the Landlord as appropriate under the Prime Lease, and
while Sub-Tenant is permitted to use such Property during the Term or
Extension hereof, such Property may not be removed from the Sub-Premises or
otherwise modified or disposed of by the Sub-Tenant without the prior
written permission of the Sub-Landlord or the Landlord, as the case may be.
If the Property described on Exhibit G is repossessed at any time during
the term of this SubLease Sub-Tenant shall have the right to terminate this
Sub-Lease Agreement.
(5) Sub-Landlord shall make improvements set forth in Exhibit H to the
SubLeased Premises at its sole cost.
(6) Sub-Tenant shall make improvements set forth in Exhibit I to the
Sub-Leased Premises at its sole cost and expense. Upon substantial
completion of all improvement made by Sub-Tenant to the Sub-Leased
Premises, Sub-Tenant shall provide Sub-Landlord with a complete and
detailed list of all such improvements.
10. Default by Sub-Tenant and Sub-Landlord's Remedies.
a. The following may be deemed events of default: (i) Sub-Tenant shall
breach the covenant to pay rent by failing to pay rent ten (10) or more
days from the date when due; or, (ii) any petition or other proceeding is
filed by or against Sub-Tenant under the Federal Bankruptcy Code, as
amended, or any proceeding provided by the applicable law of Maryland in
the nature of a bankruptcy or for the benefit of creditors which petition
is not dismissed within sixty (60) days; or, (iii) Sub-Tenant shall become
insolvent-, or, (iv) SubTenant shall make an assignment for the benefit of
creditors; or, (v) a rcceiver is appointed for the substantial part of the
assets of Sub-Tenant, which appointment is not dismissed within sixty (60)
days; or, (vi) the leasehold interest is levied under execution, in which
case Sub-Landlord shall have the option to do the following set forth in
this Section 10, in addition to and not in limitation of any other remedy
permitted by law or by this SubLease.
b. With the exception of a failure to timely pay rent as set forth in
Subsection (a) herein for which there shall be no opportunity to cure, in
the event of Sub-Tenant's default and failure to cure said default within
twenty (20) days, Sub-Landlord may terminate this Sub-Lease, in which event
Sub-Tenant shall immediately surrender the Sub-Leased Premises to
Sub-Landlord, but if Sub-Tenant shall fail to do so, Sub-Landlord may,
without further notice and without prejudice to any other remedy
Sub-Landlord may have for possession or arrearage in rent or damages for
breach of contract, enter upon the SubLeased Premises and remove Sub-Tenant
and his effects in accordance with applicable laws, if necessary, without
being liable to prosecution or any claim for damages, and SubTenant agrees
to indemnify Sub-Landlord for all loss and damages which Sub-Landlord may
suffer by reason of such termination, whether through inability to relet
the SubLeased Premises, or through decrease in rent or otherwise,
Sub-Landlord may at his option declare the entire amount of the rent which
would become due and payable during the remainder of the term to be
immediately due and payable, in which event Sub-Tenant agrees to pay the
same at once, together with all rents and additional rents due to
SubLandlord.
c. Such payments shall not constitute a penalty or forfeiture or
liquidated damages, but shall merely constitute payments in advance of the
rent for the remainder of the term.
d. Pursuit of any of the foregoing remedies shall not preclude pursuit
of any of the other remedies provided by this Sub-Lease or by law. If
Sub-Landlord shall incur any expense including, but not limited to,
reasonable attorneys' fees and costs, as the result of Sub-Tenant's breach
of any covenant or term of this Sub-Lease, the amounts so incurred shall be
payable to Sub-Landlord as additional rent by Sub-Tenant.
11. Sub-Tenant's Remedies for Sub-Landlord's Default. In the event of a breach
of this SubLease by Sub-Landlord, and Sub-Landiord's failure to cure such breach
within twenty (20) days, Sub-Tenant shall have the right to file an action for
damages or specific performance at law or equity in a court of competent
jurisdiction in Howard County, Maryland, and if Sub-Tenant prevails, whether in
court or by negotiation or mediation, and Sub-Landlord shall pay all court
costs, litigation and mediation expenses and attorney's fees incurred by
Sub-Tenant.
12. Loss, Damage, Injury.
a. No Liability for Sub-Tenant's Property. Sub-Tenant hereby expressly
agrees that neither Sub-Landlord nor Landlord shall be liable or responsible in
any manner for any damage or destruction to the property of Sub-Tenant or of any
other person or entity and/or for injury or death to the person of Sub-Tenant or
of any other person or entity directly or indirectly due to any cause whatsoever
other than the willful misconduct or negligence of or by Sub-Landlord or
Landlord, as the case may be, or their respective contractors, servants,
employees, agents, licensees and/or invitees.
b. Indemnity. Sub-Tenant, Landlord and Sub-Landlord shall each indemnify
and hold harmless the other from and against all losses, costs and expenses,
settlement payments (if such settlement is approved by the other, which approval
shall not be unreasonably withheld or delayed) and all liabilities, damages
and/or fines paid, incurred or suffered by the other party: (i) by reason of any
breach, violation and/or non-performance by the other or that party's servants,
employees, agents, licensees or invitees, of any covenant or provision of this
Sub-Lease; (ii) by reason of or arising out of the occupancy or use of the Real
Property, or any part thereof, including any claim action, suit or proceeding,
threatened, instituted and/or made against the other arising out of or in
connection therewith; and/or, (iii) from any other cause whatsoever due to the
negligence, or willful misconduct of the other or that party's servants,
employees, agents, licensees and/or invitees. This indemnification shall survive
the termination or expiration of this SubLease, to the extent permitted by law.
13. Destruction By Fire or.Other Casualty. In the event of partial or total
damage or destruction to the Leased Premises by fire, other casualty, or any
other cause whatsoever, the terms and conditions of the Prime Lease shall be
controlling, and Sub-Tenant's rights thereunder shall be the same as
Sub-Landlord's.
14. Recognition of Prime Lease. To the extent not otherwise provided for in
this Sub-Lease, Sub-Tenant agrees that this Sub-Lease shall be subject to and
subordinate to the terms and conditions of the Prime Lease and any existing or
future assignments, liens, mortgages or other encumbrances which Sub-Landlord or
Landlord place upon the Leased Premises or Sub-Lcased Premises.
15. Eminent Domain. If the entire Leased Premises, including the Sub-Leased
Premises, shall be substantially taken (either temporarily or permanently) for
public purposes, or in the event Landlord shall convey or lease the Leased
Premises and/or Real Property to any public authority in settlement of a threat
of condemnation or taking, the terms and conditions of the Prime Lease shall be
controlling, and Sub-Tenant's rights thereunder shall be the same as
Sub-Landlord's.
16. Assignment. Sub-Tenant, for itself, its heirs, distributees, personal
representatives, legal representatives, successors and assigns, expressly
covenants that it shall not further assign, mortgage or encumber this Sub-Lease,
nor Sub-Lease or use or permit the Sub-Leased Premises or any part thereof to be
used by others, without the prior written consent of Sub-Landlord in each
instance, which consent shall not be unreasonably withheld. In the event that
Sub-Landlord shall give such consent, Sub-Tenant shall nevertheless remain
primarily liable for the termss of this SubLease and shall not be relieved from
any liability whatsoever under the Lease. Sub-Tenant shall bear the reasonable
legal review costs incurred by Sub-Landlord in connection with such assignment
or subleasing. Sub-Tenant may assign this Sub-Lease or sublet all or any portion
of the Sub-Leased Premises to another entity which is wholly owned by Sub-Tenant
or Sub-Tenant's parent company (each, an "Affiliate") without any further
consent from Sub-Landlord, so long as Sub-Tenant nevertheless remains fully
liable under this Sub-Lease. In the event that the amount of rent to be paid to
Sub-Tenant by an assignee or sublessee is greater than the rent required to be
paid by SubTenant to Sub-Landlord pursuant to this Sub-Lease, such excess shall
be the property of SubLandlord. Any levy or sale in execution, or any assignment
or sale in bankruptcy or insolvency, or the appointment of a receiver or trustee
of any of the property of Sub-Tenant by a state or federal court, shall be
deemed an assignment within the meaning of this Section.
17. Non-Disturbance. Sub-Landlord agrees not to disturb or in any way interfere
with SubTenant's lawful use and enjoyment of the Sub-Leased Premises during the
Term hereof, or any Extension of the Tenn. The Sub-Landlord covenants and agrees
with the Sub-Tenant that, upon the Sub-Tenant paying the Rent reserved in this
Sub-Lease and observing and performing all the tenus, covenants, and conditions
of this Sub-Lease on the Sub-Tenant's part to be observed and performed, the
Sub-Tenant may peaceably and quietly enjoy the full possession of the Sub-Leased
Premises without molestation or hindrance during the term of this Sub-Lease
(including any Extension period), in accordance with the terms, covenants, and
conditions of this Sub-Lease and Sub-Tenant's use and enjoyment of the Premises
will not be disturbed. Sub-Tenant acknowledges that this agreement by
Sub-Landlord, as set forth in Section 17, in no way limits or affects Landlord's
rights under the Prime Lease, including the right to terminate same and thereby
ten-ninate this Sub-Lease. Sub-Landlord agrees that the foregoing in no way
limits any cause of action Sub-Tenant may have against Sub-Landlord for a breach
of this Section 17.
18. Notices. All notices, demands and requests required under this Sub-Lease
shall be in writing and shall be mailed by United States registered or certified
mail, return receipt requested, postage prepaid, or by Federal Express or other
nationally recognized overnight courier service, or hand-delivered with a
receipt and addressed (1) if to Landlord, c/o Manekin Corporation, 7165 Columbia
Gateway Drive, Columbia, Maryland 21046, Attn.: General Counsel, with a copy to
Ann Clary Gordon, Esquire, c/o Shapiro and Olander, 36 S. Charles Street,
Baltimore, Maryland 21201 or (ii) if to Sub-Landlord, at the Leased Premises, to
Dr. Edwin Quattlebaum, President/CEO, with a copy to William P. Cook, Esquire,
c/o Borinsky; Ramsey & Cook, LLC, Suite 250, 10420 Little Patuxent Parkway,
Columbia, Maryland 21044, and (iii) if to Sub-Tenant to Dr. Michael Brennan,
President/CEO, at the Sub-Leased Premises. All notices delivered in the
foregoing manner shall be deemed delivered on the date the return receipt is
executed or the date the recipient refuses delivery. Notwithstanding the
foregoing, all rental payments and other charge due under this Sub-Lease shall
be delivered to Sub-Landlord at the address of SubLandlord set forth above,
Attn.: Accounting Department. Any of such entities may designate a change of
address by written notice to the others.
19. Estoppel Certificates. Each party agrees to any time and from time to time
upon not less than five (5) business days prior notice by the other party to
execute, acknowledge and deliver to the requesting party a statement in writing
certifying that this Sub-Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications) and the dates to which the Rent and
other charges have been paid in advance, if any, and stating whether or not, to
the best knowledge or the signer of such certificate, the requesting party is in
breach and/or default in performance of any covenant, agreement or condition
contained in the Sub-Lease and, if so, specifying each such breach and/or
default in performance of any covenant, agreement or condition contained in this
Sub-Lease and, if so, specifying each such breach and/or default of which the
signer may have knowledge. Such statement delivered hereunder may be relied upon
by any party not a party to this Sub-Lease.
20. Attornment. Sub-Tenant agrees that upon any termination of Sub-Landlord's
or Landlord's interest in the Leased Premises, Sub-Tenant shall, upon request,
attorn to the holder of the Sub-Landlord's interest in the Leased Premises (the
"Successor") and to all subsequent Successors (provided that such Successor
enters into a non-disturbance agreement in form reasonably acceptable to
Sub-Tenant and the Successor) and shall pay to the Successor all rents and other
monies required to be paid by the Sub-Tenant, hereunder and perform all of the
other covenants, agreements, provisions, conditions, obligations and/or duties
of Sub-Tenant contained in this Sub-Lease.
21. Severability and Enforceability. If any term or provision of this Sub-Lease
or the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Sub-Lease or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Sub-Lease shall be valid and enforceable to the
fullest extent permitted by law.
22. Recordation. Sub-Tenant covenants that if at any time any mortgagee of
Landlord's interest in the Leased Premises, any trustee or beneficiary under a
deed of trust constituting a lien upon the Building of which deed of trust
Landlord is grantor, or a landlord of Landlord in respect of the real property
upon which the Building is situated, shall require the recordation of this
SubLease, or if any recordation is required by Sub-Landlord or its assigns, or
if the recordation of this Lease shall be required by any valid governmental
order, or if any governmental authority having jurisdiction in the matter shall
assess and be entitled to collect transfer taxes or documentary stamp taxes, or
both such taxes on this Sub-Lease, Sub-Tenant shall execute such acknowledgments
as may be necessary to effect such recordation and whichever party requires such
recordation shall pay all recording fees, transfer taxes and documentary stamp
taxes payable on, or in connection with, this Sub-Lease or such recordation.
23. Successors and Assigns. The covenants, conditions and agreements contained
in this Lease shall bind and inure to the benefit of Landlord, Sub-Landlord and
Sub-Tenant and their respective heirs, distributees, executors, administrators,
successors, personal and legal representatives and their permitted assigns. The
Bank and MIDFA shall have no liability under this Sub-Lease unless they
expressly, and in writing, assume Sub-Landlord's agreements under this
Sub-Lease.
24. Commissions and Fees. Except as provided in the Prime Lease, each party
shall be solely responsible for their own commissions and fees, including, but
not limited, to real estate brokers and attomeys, for which that party has
contracted and neither party shall be responsible for any commissions or fees
which arise through or from any third party in respect to this transaction and
the parties agree to hold harmless and indemnify the other in respect to all
such fees and commissions.
25. Termination of Sub-Lease.
a. Termination of Tenancy_- The Sub-Lease created hereunder shall
terminate by its own terms on April 30, 2001, unless extended in writing
and agreed to by the parties as otherwise set forth herein. No act or
thing done by Sub-Landlord shall be deemed to be an acceptance of a
surrender of the Sub Leased Premises unless and until Sub-Landlord shall
execute a written release of Sub-Tenant. Sub-Tenant's liability hereunder
shall not be terminated by the execution of a new sub-lease of the
Sub-Leased Premises by SubLandlord, regardless of the term of such new
lease.
b. Surrender of Premises. Upon termination of the Sub-Lease, Sub-Tenant
shall have the right to remove its personal property and equipment, agreed
to and identified by the parties and Landlord during a pre-surrender
inspection of the Sub-Leased Premises seventy-two (72) hours prior to
surrender of the Sub-Leased Premises by Sub-Tenant. SubTenant shall repair
any surfaces damaged from the removal of any of its said property, and
surrender the Sub-Leased Premises broom clean and ready for occupancy.
c. Holding Over. If Sub-Tenant holds possession of the Sub-Leased Premises
after termination of this Sub-Lease without Sub-Landlord's written
consent, Sub-Tenant shall become a Sub-Landlord from month-to-month at
double the rent payable during the final year of the Term or any Extension
hereof and upon all other terms herein specified and shall continue to be
such Sub-Landlord from month-to-month until such tenancy shall be
terminated by either party giving the other written notice of at least
thirty (30 ) days of its intention to terminate such tenancy. Nothing
contained in this Sub-Lease nor this Subsection c. specifically, shall be
construed as consent by the Sub-Landlord to the occupancy or possession of
the Sub-Leased Premises by Sub-Tenant after termination of this Sub-Lease.
Upon termination of this Sub-Lease, Sub-Landlord shall be entitled to the
benefit of all public general or public local laws relating to the speedy
recovery of the possession of lands and tenements held over by
Sub-Landlords, that may now or hereafter be in force.
26. Governing Law. This Sub-Lease shall be governed by and construed in
accordance with the laws, ordinance and regulations of the state of Maryland.
27. Third Party-Beneficiaries. Nothing contained in this Sub-Lease shall be
construed so as to confer upon any other party the rights of a third party
beneficiary, other than those provided for herein.
28. Complete Agreement.. This writing is intended by the parties as a final
expression of their agreement and is a complete and exclusive statement of its
terms, and all negotiations, considerations, and representations between the
parties are incorporated. No course of prior dealings between the parties or
their affiliates shall be relevant or admissible to supplement, explain, or vary
any of the terms of this Sub-Lease. Acceptance of, or acquiescence to, a course
of performance rendered under this Sub-Lease or any prior agreement between the
parties or their affiliates shall not be relevant or admissible to determine the
meaning of any of the terms or covenants of this Sub-Lease. Other than as
specifically set forth in this Sub-Lease, no representations, understandings, or
agreements have been made or relied upon in the making of this Sub-Lease.
29. Modification. This Sub-Lease can only be modified in writing, signed by
each of the parties or their agents. Copies of any modification(s) to this
Sub-Lease shall be provided to Landlord, Bank and MIDFA.
30. Captions. All headings anywhere contained in this Sub-l,ease are intended
for convenience of reference only and are not to be deemed or taken as a summary
of the provisions to which they pertain or as a construction thereof.
31. Waiver of Jury Trial. Sub-Landlord and Sub-Tenant desire a prompt
resolution of any litigation between them with respect to this Sub-Lease. To
that end, Sub-Landlord and Sub-Tenant waive trial by jury in any action , suit,
proceeding and/or counterclaim brought by either against the other on any
matters whatsoever arising out of or in any way connected with this Sub-Lease,
the relationship of Sub-Landlord and Sub-Tenant, Sub-Tenant's use or occupancy
of the Sub-Leased Premises, any claim of injury or damage and/or any statutory
remedy. This waiver is knowingly, intentionally and voluntarily made by
Sub-Tenant. Sub-Tenant acknowledges that neither Sub-Landlord nor any person
acting on behalf of Sub-Landlord has made any representations of fact to induce
this waiver of trial by jury or in any way to modify or nullify its effect.
Sub-Tenant further acknowledges that it has been represented (or has had the
opportunity to be represented) in the signing of this Sub-Lease and the making
of this waiver by independent legal counsel, selected of its own free will, and
that it has had the opportunity to discuss this waiver with counsel. Sub-Tenant
further acknowledges that it has read and understands the meaning and
ramifications of this waiver of jury trial.
32. Gender. As used in this Lease: (1) the masculine shall be deemed to include
the feminine and neuter and vice-versa; and (2) the singular shall be deemed to
include the plural and vice-versa.
33. Authority. Sub-Tenant warrants to Sub-Landlord that Sub-Tenant is a
corporation organized and validly existing in good standing under the laws of
the State of Delaware and qualified to transact business in the Sate of
Maryland. In addition, Sub-Tenant warrants to Sub-Landlord that this Lease has
been properly authorized and executed by Sub-Tenant and is binding upon
SubTenant in accordance with its terms. Sub-Tenant's resident agent's name and
address in the State of Maryland is: The Corporation Trust, 32 South Street,
Baltimore, Maryland 21202.
34. Force Majeure. In the event that either party hereto shall be delayed or
hindered in or prevented. by reason of weather, strikes, lock-outs, labor
troubles, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection. war, Acts of God or other
reason of a like nature (excluding lack of funds) not the fault of the party
delayed from performing work or doing any act required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period of the performance of any such act shall be extended for a period
equivalent to the period of such delay. The party so delayed shall give prompt
notice thereof to the other party. The provisions of this Section 34 shall not
operate to excuse SubTenant from prompt payment of rent, additional rent or any
otlier payments required by the terms of this Lease.
[SIGNATURES ON NEXT PAGE]
<PAGE>
IN WITNESS WHEREOF, the parties affix their hands and seals on the day and year
first above written.
SUB-TENANT:
GENE LOGIC, INC.
_________________ _________________________(SEAL)
Date By: Michael Brennan, PhD
President and Chief Executive Officer
SUB-LANDLORD:
CROP GENETICS INTERNATIONAL CORPORATION/ biosys, INC.
________________ __________________________(SEAL)
Date By: Michael Thomas
Vice President and Chief Financial Officer
CROP GENETICS INTERNATIONAL CORPORATION
_______________ __________________________(SEAL)
Date By: Michael Thomas
Vice President and Chief Financial Officer
biosys, inc.
Landlord signs below for the sole purpose of acknowledging its consent to the
above SubLease to Gene Logic, Inc. upon the express condition that such consent
shall not be deemed a waiver or relinquishment of the covenant against any
future assignment or subletting of the Prime Lease by Sub-Landlord, or of this
Sub-Lease by Gene Logic, Inc., nor shall such consent in any way be construed as
releasing Sub-Landlord from the full performance of its obligations under the
Prime Lease.
LANDLORD: M.O.R. XVIII ASSOCIATES LIMITED PARTNERSHIP
________________ __________________________(SEAL)
Date By: RA & DM, Inc.
<PAGE>
Site Plan Drawing
Exhibit A
<PAGE>
LEASE AGREEMENT
THIS AGREEMENT OF LEASE is made this 1st day of October, 1992, by and
between M.O.R. XVIII ASSOCIATES LIMITED PARTNERSHIP, a limited partnership
formed under the laws of the State of Maryland (hereinafter referred to as
"Landlord"), and CROP GENETICS INTERNATIONAL CORPORATION, a Delaware corporation
(hereinafter referred to as "Tenant").
WITNESSETH, that the parties hereby covenant, promise and agree as
follows:
1. Leased Premises.
(a) Landlord is the owner of a building containing approximately
75,500 square feet (the 'Building') constructed on land leased by
Landlord and designated as Parcel M-2 (the 'Land') on the Plat
entitled, "Parcels M-2 and M-3, A Resubdivision of Parcel M-1, Plat
No. 5194", which plat is recorded among the Land Records of Howard
County, Maryland as Plat No. 5693. The Land contains approximately 11
acres, is located at 10150 Columbia Road in the Rivers Corporate Park
(the "Park",) in Howard County, Maryland (the "County"), and is more
particularly shown on Exhibit A attached hereto incorporated by
reference herein and initialed by the parties. The Land, the Building,
the easements and rights appurtenant thereto (including those
established by certain declarations of covenants recorded prior hereto
among the Land Records of the County) , and the sidewalks, areaways,
parking areas, driveways, loading. areas, gardens and lawns
surrounding the Building and located on the Land are collectively
hereinafter called 'Leased Premises'. Landlord does hereby lease unto
Tenant, and Tenant does hereby rent from Landlord, the Leased Premises
for the 'Lease Term' (as hereinafter defined). See Rider No. 2
Expansion Option, Rider No. 3 - Right of First Offer, and Rider No. 4
- Right of First Refusal (Expansion Parcel).
(b) The Leased Premises shall be delivered to Tenant in "AS-IS"
condition. The Leased Premises shall include all furniture,
telephones, equipment procedure manuals and all phone, security and
energy management systems now located therein (collectively, the
'Equipment and Furnishings'). Landlord acknowledges that Tenant plans
extensive renovations to the Leased Premises which are being designed
now, all of which shall be performed by Tenant, at Tenant's sole cost
and expense. All improvements to be made by Tenant to the Leased
Premises shall be made in accordance with Section 6 below. Landlord
shall be given the opportunity to submit a bid to Tenant for the
construction of such improvements. If Landlord is awarded the contract
to perform such improvements, the Leased Premises shall be thoroughly
cleaned by Landlord, at Landlord's sole cost and expense, prior to
Tenant's move-in.
2. Term.This Lease shall be for a term (the 'Lease Term") commencing on
September 1, 1992 (the "Comencement Date") and terminating at 11:59 p.m. on
November 30, 2004, unless otherwise extended or terminated in accordance
with the provisions hereof. See Rider No. 5 - Renewal Option and Rider No.
6 Cancellation Option.
Each respective period of twelve (12) successive calendar months
during the _________________of shall be hereinafter referred to-as the
lease year. The first lease year, however, will be comprised of the of the
period from the Commencement Date until November 30, 1993, so that each
lease year thereafter will commence on December 1.
The Occupancy Date, shall be that date on which the first of the
following events occurs: (a) the date on which the Leased Premises are
ready for occupancy' as hereinafter defined, (b) the date on which Tenant
shall take possession or occupy all or any portion of the Leased Premises
(other than occupying the Leased December 1, 1992. The Leased Premises
shall be deemed "ready for occupancy" on that date on which the initial
renovations to be made by Tenant on the Leased Premises (the "Renovations")
shall have been substantially completed and, if required, a use and
occupancy permit shall ha-,e been issued for the Leased Premises by the
County. If the Renovations are performed by Landlord, such use and
occupancy permit, if required, shall be obtained by Landlord.
Not withstanding the provisions of the immediately preceding
paragraph, the parties hereby agree that if Landlord is hired by Tenant to
perform the Renovations and Landlord, for reasons within its reasonable
control, fails to substantially complete the Renovations by the projected
completion date as set forth on a construction schedule to be agreed upon
by Landlord and Tenant in writing (the "Construction Schedule"), then, to
the extent that such delay is attributable to Landlord, the date of
December 1, 1992 set forth above shall be postponed by one (1) day for each
day that elapses between the projected completion date (as set forth on the
Construction Schedule) and the actual date of substantial completion. The
parties hereby specifically acknowledge that no delay caused by Tenant or
by any subcontractor specifically requested by Tenant, or resulting from
any other cause not within Landlord's reasonable control, will be deemed a
delay attributable to Landlord.
On the Occupancy Date or such later date as Landlord may request,
Tenant shall promptly enter into a supplementary written agreement in such
form as is reasonably acceptable to Landlord and Tenant, thereby specifying
such date.
Notwithstanding the Commencement Date of September 1, 1992, Landlord
hereby agrees that Tenant may enter the Leased Premises prior to the
Commencement Date for purposes of inspecting the Leased Premises. Tenant's
entry into the Leased Premises prior to the Commencement Date shall be at
its own risk and subject to the provisions of Section 12 below. Tenant
further agrees that prior to Tenant's entry into the Leased Premises,
Tenant shall provide evidence to Landlord that the insurance described in
Section 9 below is in full force and effect.
3 Use. Landlord and Tenant expressly agree that the Leased Premises
shall be used or occupied by Tenant for any lawful purpose, as the same may
be limited by applicable zoning codes and all covenants and other
restrictions to which the Leased Premises are subject.
Tenant further warrants that it has received and reviewed a copy of
the covenants and restrictions affecting the use of the Leased Premises as
set forth on Exhibit E to this Lease, and agrees to abide by all such
covenants and restrictions.
4. Basic Annual Rent. Commencing ninety (90) days after the occupancy
Date (the "Rent Commencement Date",) it being understood and agreed that
Tenant may use and occupy the Leased Premises until ninety ( 90) days after
the Occupancy Date (the "Free Rent Period") without the obligation to pay
Basic Annual Rent, Tenant shall pay to Landlord during the Lease Term
"Basic Annual Rent" in the amounts and with respect to the time periods set
forth below.
Basic Annual Rent Monthly Installment
Free Rent Period .......... -0- -0-
Rent Commencement Date -
2nd Lease Year .......... $ 517,930.00$ 43,160.83
3rd - 7th Lease Years ..... 653,075.00 54,422.92
8th - 12th Lease Years .... 868,250.00 72,354.17
Basic Annual Rent shall be payable in equal monthly installment, as set forth
above, without any deductions or set-offs, and without demand, in advance on the
twenty-fifth (25th) day of each and every month preceding the month for which
payment is applicable (e.g., April's rent is due on or before March 25) during
the Lease Term provided, however, that if the Rent Commencement Date shall occur
on a day other than the first day of a month, Tenant shall pay on the Rent
Commencement Date for the fractional part of such month, a prorated amount of
one month's rent. Although Tenant may use and enjoy the Leased Premises during
the Free Rent Period without the obligation to pay Basic Annual Rent, Tenant
shall otherwise observe, perform and obey all other provisions of the Lease on
its part to observer perform and obey during such period, including by way of
example, payments of all sums deemed additional rent, except that Landlord shall
pay all Taxes and Insurance applicable to the Leased Premises for the period
prior to the Occupancy Date.
4.1. Definitions - . For purposes of this Lease, the following
meanings or definitions shall apply
(a) "Rentable Area of the Leased Premises: shall, for all
purposes of this Lease, be deemed to be an agreed 75,500 square
feet. Tenant shall have the right to review the square footage
calculation of Landlord's architect or engineer and/or to perform
a field measurement to verify the same, but the Basic Annual Rent
shall in no event be adjusted if Tenant determines the actual
square footage of the Building to be different from 75,500.
(b) "Taxes" shall mean any present or future federal, state,
municipal, local and/or any other taxes (including gross receipts
or business license taxes), assessments, levies, benefit charges
and/or other governmental or private impositions (including
business park charges and dues) , levied, assessed and/or agreed
to be imposed upon the Real Property or any part or parts of said
Real Property, or upon the rent due and payable hereunder,
whether or not now customary or within the contemplation of the
parties hereto and regardless of whether the same shall be
extraordinary or ordinary, general or special, foreseen or
unforeseen, or similar to any of the foregoing but shall not
include any inheritance, estate, succession, income, excise,
capital, profits or franchise tax, provided, however, if at any
time during the Lease Term or any extension thereof the method of
taxation prevailing at the commencement of the term shall be
altered or eliminated so as to cause the whole or any part of the
items listed in the first sentence of this subsection (b) to be
replaced by a levy, assessment or imposition, wholly or partly as
a capital levy, or otherwise, on the rents or income (provided
the tax on such income is not a tax levied on taxable income
generally) received from the Real Property, wholly or partly in
place of an imposition on or as a substitute for, or in place of,
taxes in the nature of real estate taxes issued against the Real
Property, then the charge to Landlord resulting from such altered
or replacement method of taxation shall be deemed to be within
the definition of "Taxes". All reasonable expenses incurred by
Landlord (including attorneys, fees and costs) in contesting any
increase in the assessment of the Real Property shall be included
as an item of Taxes for the purpose of computing additional rent
due hereunder.
(c) "Real Property" shall mean the Land, the Building, and all
fixtures, equipment and _____________ upon said Land, which have
been provided by the Landlord and shall include the sidewalks,
areaways, parking areas, loading areas, gardens and lawns of the
Leased Premises.
(d) "Insurance" shall mean insurance covering the Building, the
Real Property, and the equipment, fixtures and other improvements
installed and/or owned by Landlord and used in connection with
the Building and/or the Real Property and/or all alterations,
rebuilding, replacement and additions thereto, insuring the same
against loss or damage by fire, vandalism, malicious mischief,
sprinkler leakage (if sprinklered) and such other hazards,
casualties, risks and contingencies not covered by or that may
hereafter be considered as included within, the standard
all-perils, casualty insurance policy. Insurance shall include
insurance for loss of rent for one (1) year arising out of any of
the occurrences covered by such insurance. Such casualty
insurance shall be carried in an amount at least equal to the
Full Insurable Value thereof. The term 'Full Insurable Value,
shall mean actual replacement costs of the Building (exclusive of
the costs of excavation, foundations and footings below the
lowest basement floor). It shall be the obligation of Tenant at
Tenant's expense to have such "Full Insurable Value", appraised
annually to the end that the insurance shall be kept current
(e ) "Term" or "Lease Term" shall mean the initial lease term and
a11 renewals or extensions thereof.
(f) "Deed of Trust" shall mean the deed of trust or mortgage
securing Landlord's original, interim, and/or permanent financing
for the Leased Premises.
4.2. Rent Adjustment -Taxes. Tenant shall pay to Landlord as
additional rent the dollar amount of all Taxes levied or assessed
during the Lease Term beginning on the Occupancy Date, against the
Land, the Building, or the Leased Premises. Landlord shall give Tenant
prompt notice of any proposed increase in Taxes and Tenant shall be
entitled, at its on expense, and through its own counsel, to
participate with Landlord or independently to contest or oppose any
such increase. Landlord shall cooperate with Tenant as may be
reasonably required in any such contest. All refunds of Taxes
attributable to the Lease Term and which have been paid by Tenant
shall belong to Tenant. As of the date of this Lease, the tax year is
a fiscal year commencing July 1. If the appropriate authorities shall
hereafter change the tax year to a calendar year, or to a fiscal year
commencing on a date other than July 1, appropriate adjustments shall
be made in the computation of any additional rent due hereunder.
4.3. Insurance. Throughout the Lease Term beginning on the Occupancy
Date, Tenant shall obtain on behalf of Landlord the Insurance
described in Section 4.1(d) and shall promptly furnish a copy or
certificate of same to Landlord. Until the Occupancy Date, the
Insurance described in Section 4.1(d) shall be maintained by Landlord,
at its sole cost and expense.
Tenant covenant s to obtain and keep the Insurance in full force
and effect during the Lease Term, with a duly licensed and reputable
insurance company with a rating at least equal to that customarily
required by reputable institutional type first mortgagees. Both
parties shall be named as insureds under the policy providing the
Insurance as their respective interests may appear. The policy
providing the Insurance shall require payment of the premium therefor
not more frequently than semi-annually and shall provide for at least
thirty (30) days prior written notice to the insureds in the event of
modification or cancellation of such policy. A certificate of
insurance shall be _______ to Landlord at the inception of
___________________ thereof. Landlord and Tenant hereby mutually waive
all claims for recovery from the other for any loss or damage to any
of Landlord's property or Tenant's property insured under valid and
collectible insurance policies to the extent of any recovery for loss
insured thereunder and, to that end, the parties agree to a mutual
subrogation clause to be inserted or endorsed on each policy setting
forth that the insurance shall not be invalidated in the event that
the insured should waive in writing prior to any loss, any or all
right of recovery against the other party for any insured loss.
In the event Tenant shall fail to obtain such Insurance, Tenant
shall pay to Landlord, as additional rent during each lease year of
the Term in which Tenant fails to obtain such Insurance, the dollar
amount of premiums for Insurance on the Leased Premises.
4.4. Utilities. Tenant shall pay on a timely basis to the appropriate
utility or other supplier, all charges for gas, steam, electricity,
light, heat, power, telephone, water, metered or unmetered sprinkler,
sewerage and all other utility and communication services, used,
rendered and/or supplied upon or in connection with the Leased
Premises during the Lease Term. Upon request, Tenant shall promptly
furnish Landlord with copies of all paid receipts for such utilities
charges. Notwithstanding the foregoing, until the Occupancy Date,
Landlord shall be responsible for paying utilities up to a total
amount of Two Thousand one Hundred Dollars ($2,100.00) per month, and
to the extent that the total cost of utilities in any calendar monrkf
(or, with respect to any partial month, the applicable prorata share)
during such period exceeds such amount, Tenant shall be responsible
for paying only such excess amount.
4.5. Payments. All payments or installments of any rent hereunder
other than Basic Annual Rent and all sums whatsoever due under this
Lease (including reasonable attorneys' fees) shall be deemed
additional rent and shall be paid to Landlord at the address
designated for notice to Landlord herein, or as otherwise designated
by Landlord, and if any installment of Basic Annual Rent is not paid
within 5 days of the date when due, it shall bear a late charge equal
to Three Hundred Dollars ($300-00) for each day such sum is in
arrears, and if any installment of additional rent is not paid within
5 days of the date when due, it shall bear interest at the rate of
eighteen percent (18t) per annum, for each day such sum is in arrears,
in consideration of Landlord's additional expense caused by such
failure to pay, which late charge or interest as applicable, shall be
payable without demand simultaneously with the rent arrearage. Time is
of the essence in this Lease with respect to Tenant's monetary
obligations hereunder. Unless otherwise provided, any such additional
rent shall be due within thirty (30) days after the Landlord has
submitted a written statement to Tenant showing the amount due. Such
obligations shall survive the expiration or sooner termination of this
Lease. Any such statements shall be accompanied by a copy of the bill
or other invoice for such charge.
5. Requirements of Law. Tenant shall, at the sole cost and expense of Tenant,
observe and comply with all laws, requirements, rules, orders, ordinances and
regulations of any governmental, quasi-governmental entity or of the local Board
of Fire Underwriters applicable to any portion of the Leased Premises. 6.
Tenant's Improvements.
(a) Tenant agrees that it will not undertake any structural or
non-structural alterations of any of the improvements ___________after
erected upon the Leased Premises,__________ not construct any new
structures or improvements upon the Leased Premises, without the prior
written consent of Landlord following Tenant's submission to Landlord of
plans and specifications with respect thereto, which consent shall not be
unreasonably withheld by Landlord so long as such alterations will not
materially change the character of the existing improvements or weaken or
impair the structural integrity or lessen the value of the existing
improvements. In all other cases, Landlord's consent shall be given solely
within Landlord's discretion. Landlord shall approve or disapprove such
plans within seven (7) business days of the date the same are submitted to
Landlord by Tenant, and, if not approved or disapproved within such time
period, such plans submitted to Landlord by Tenant shall be deemed
approved. With respect to any major improvements to be constructed by
Tenant, including the Renovations, Tenant shall, initially, be required to
submit only preliminary plans to Landlord, and if such preliminary plans
are approved by Landlord as described above, then construction drawings
shall be prepared by Tenant and submitted to Landlord for Landlord's
review. and approval in accordance with the foregoing provisions prior to
Tenant beginning such work. Interior changes which are decorative only
(e.g., repainting and recarpeting) shall not require Landlord's prior
consent. Regardless of -whether Landlord's prior consent for any work is
required, Tenant shall give Landlord notice of any change, alteration,
addition, enlargement or improvement and copies of plans and specifications
therefor prior to commencing any work thereon. All work to be done by
Tenant to or in the Leased Premises shall be done by contractors or
mechanics approved by Landlord. All work with respect to which neither
Landlord nor Manekin Corporation is the general contractor shall be
performed under the general supervision of Landlord for which Landlord
shall be paid a reasonable supervisory fee which, with respect to all major
improvements (including the Renovations) , shall be equal to $80.00 for
each hour of supervision performed by Landlord.
(b) Subject to the limitations contained in the foregoing Section 6(a)
Tenant may, at any time during the term of this Lease, at Tenant's own cost
and expense, make or permit to be made any alteration, change or addition
of, in or to the Leased Premises or any part thereof or any building or
improvement which may hereafter be erected thereon, subject, however, to
the following conditions, each of which must be fully observed and
performed by Tenant before the commencement of any work Whatsoever
(i) That there is no existing and unremedied default on the part of
Tenant, of which Tenant has received notice, under the terms,
covenants and conditions herein on the part of Tenant to be observed
and performed.
(ii) That Tenant shall covenant that the same shall be performed with
diligence and in a first-class, workmanlike manner.
(iii)That neither the interest of the Landlord nor the interest of the
holder of the Deed of Trust nor the Leased Premises nor any building
in or improvement on, under, or above the Leased Premises shall then
be the subject of any charge , liability, claim, or lien of whatsoever
kind or nature by reason of work undertaken by Tenant.
(iv) That if under the provision of any insurance policies required to
be provided and maintained hereunder, any consent to any alteration,
change or addition by the insured therein shall be required to
continue and keep such policies in full force and effect, Tenant shall
obtain such consents and pay any premiums or charges that may be
incurred therefor.
(v) Tenant shall covenant that in the__________ of the then existing
structures ________ construction of any one building, it will comply
wall applicable requirements of the Building Code of the County and
with all other applicable laws, ordinances, rules and regulations of
all governmental authorities having jurisdiction thereof and of the
local Board of Fire Under-o or of any similar body.
(vi) Tenant shall procure all necessary permits for the alteration of
the then existing structures and for the construction of the new
improvements and shall deliver to Landlord a certificate of occupancy
when required by law, as a condition precedent to the use of the
improvements, Tenant shall deliver to Landlord a set of the "as built"
plans.
(vii)Tenant shall maintain the construction site in a neat and orderly
manner and shall be responsible, at its sole cost and expense, for
removing all construction debris.
(c) All such work, other than movable furniture or trade fixtures, done by
Tenant upon the Leased Premises, shall be the property of the Landlord at
the termination of this Lease; provided, however, that Landlord may require
Tenant to remove all or any part of said work at the expiration of this
Lease, in which event such removal shall be done at Tenant's sole cost and
expense. Tenant shall, at its sole cost and expense, repair any damage to
the Leased Premises and/or the Building caused by such removal or by the
removal of its personalty. Notwithstanding the foregoing, Landlord and
Tenant hereby agree that Landlord will make a determination of whether any
such work must be removed by Tenant at the time Landlord reviews the
proposed plans and specifications for such work, and such determination
shall be binding on Landlord and Tenant. To the extent that Landlord
determines that any offices or laboratories to be constructed by Tenant
could be used by a subsequent tenant and would not hinder the Landlord's
ability to re-lease the Building in the general marketplace for offices and
laboratories, Landlord will not require that the same be removed by Tenant
upon the expiration of the Lease Term.
7. Condition of Premises.
(a) Except as specifically set forth in subparagraph( b) below, Tenant
shall at all times during the Lease Term take good care of and keep the
Leased Premises and the improvements, fixtures, equipment and appurtenances
therein (including, but not limited to, walls, windows, doors, pipes,
plumbing, water and sewer connections, heating and air conditioning
equipment and machinery, and electrical works of the Building) , in good
order and condition, and, at Tenant's sole cost and expense, shall make all
necessary repairs thereto, which repairs shall be in quality and class at
least equal to the original work. Tenant shall not commit or suffer any
waste of the Leased Premises and will assume responsibility for all
maintenance and repair, regardless of the nature, pertaining to the heating
and/or air conditioning equipment. Tenant further will obtain and maintain
during the term hereof, and any extension or renewal thereof, a full
service contract on such equipment reasonably acceptable to Landlord
providing at least the services specified on Exhibit B hereto. At the
expiration of the Lease Term, or at the sooner termination of this Lease as
herein provided, Tenant shall deliver up the Leased Premises (including all
Equipment and Furnishings, except as set forth below) in the same good
order and condition, reasonable wear and tear and damage by casualty
excepted, as at the beginning of the tenancy, broom clean and (subject to
the provisions of the preceding Section hereof) Tenant shall remove all of
its property and/or property maintained and/or stored for or on the account
of others therefrom prior to such termination.
(b) Notwithstanding the foregoing, Landlord hereby acknowledges that
during the Lease Term, Tenant may desire to replace certain items of the
Equipment and Furnishings Accordingly, Landlord hereby agrees that if
Tenant's Cancellation Option (as defined in Rider No. 6 below) is not
exercised by Tenant and the time period for such exercise has expired, then
Tenant may replace any of the items comprising the Equipment and
Furnishings, in which event neither the original Equipment and Furnishings
nor their replacements need be returned to Landlord upon the expiration of
the Lease Term; provided however, that prior to any item or the Equipment
and Furnishings being discarded, it shall first be offered to Landlord and
discarded only after Landlord elect. in writing not to require Tenant to
return the same to Landlord. Any items of Tenant's personalty remaining in
the Leased Premises after the termination of the Lease shall be deemed
abandoned by Tenant and become the sole property of Landlord. Tenant shall
also deliver to Landlord a certification from the company which regularly
services the mechanical equipment, which certification shall be based on an
inspection conducted within 30 days preceding the termination date of the
Lease, stating that all such systems are in good operating order and other
wise in substantially the form attached hereto as Exhibit C.
(c) Landlord, at Tenant's sole cost and expense beginning on the Occupancy
Date, shall maintain the grounds and the exterior of the Building
(excluding window washing) , including but not limited to maintaining all
grass and landscaping, maintaining the driveways, sidewalks and parking
areas, keeping the same free of ice, snow and debris, and maintaining the
roof and do-spouts. The cost of the foregoing shall be charged to Tenant at
the actual cost to Landlord, plus ten percent (10%). Landlord, at its sole
cost and expense, shall maintain and, as required, replace the structural
components of the Building (that is, the exterior walls and foundation),
and, as and to the extent required, shall replace the roof and repave the
parking areas.
(d) Except as otherwise set forth in this Lease, Landlord shall not be
required to furnish any serices or facilities to the Leased Premises and
Landlord shall not be required to rebuild any improvements on the Leased
Premises or to make any repairs, replacements or renewals of any nature or
description to the Leased Premises or any improvement thereon, whether
ordinary or extraordinary, foreseen or unforeseen, or to maintain the
Leased Premises in any way.
(e) Notwithstanding the foregoing, Tenant's maintenance obligations under
this Lease shall commence upon Tenant's entry into the Leased Premises to
begin its Renovations.
8. Conduct on Premises. Tenant shall not do, or permit anything to be done in
the Leased Premises, or bring or keep anything therein which will, in any way,
increase the rate of fire or other insurance maintained on the Real Property by
Landlord, or invalidate or conflict with the fire insurance policies on the Real
Property; obstruct or interfere with the rights of Landlord; or interfere with
the good order of the Building. Tenant agrees that any increase in fire or other
insurance premiums on the Real Property and/or the contents thereof caused by
the use or occupancy of Tenant shall, as they occur or accrue, be added to the
rent heretofore reserved and be paid as a part thereof; and Landlord shall have
all the rights and remedies for the collection of same as are conferred upon
Landlord for the collection of rent provided to be paid pursuant to the terms of
this Lease.
9. Insurance. At all times during the Lease Term, Tenant, at its sole cost and
expense, shall provide and keep in full force and effect a policy of public
liability and property damage insurance, naming Landlord and Manekin Coporation,
as their interests may appear, as additional insureds, with respect to the
__________of Tenant in, on, within, from or connected with the Leased Premises,
pursuant to which the limits of liability shall be at least $1,000,000.00 in
respect to any one occurrence, and at least $2,000,000.00 as the combined limit
of liability, or in such amounts as Landlord may reasonably reqire. Said
insurance policy shall contain a clause that the insurer will not cancel or
change the insurance without first giving Landlord thirty (30) days prior
written notice. Said insurance policy shall be carried with an insurance company
approved by Landlord, which approval shall not be unreasonably delayed or
withheld, and a certificate of insurance shall be delivered to Landlord at the
inception of each policy and renewal thereof.
10. Mechanics' and Materialmen's Liens and Other Liens. Tenant shall discharge,
within ten (10) days after the date of filing, any mechanics' or materialmen's
liens filed against the Leased Premises (or Tenant's interest therein), or any
part thereof, purporting to be for work or material furnished or to be furnished
to Tenant. 11. Tenant's Failure to Perform. In the event that Tenant shall fail,
after fifteen (15) days written notice from Landlord, to keep the Leased
Premises in the state of condition and repair required by this Lease; to do any
act; make any payment; and/or perform any term or covenant on Tenant's part
required under this Lease, Landlord may (at its option, but without being
required to do so) immediately, or at any time thereafter and without notice,
perform the same for the account of Tenant (including, but not limited to,
entering upon the Leased Premises upon reasonable prior oral notice to Tenant
and in the presence of an employee of Tenant, unless such entry is on an
emergency basis, to make repairs) . All rights given to Landlord in this Section
shall be in addition to any other right or remedy of Landlord herein contained.
12. Loss, Damage, Iniury.
(a) Tenant hereby expressly agrees that Landlord shall not be liable or
responsible in any manner for any damage or destruction to the property of
Tenant or of any other person or entity and/or for injury or death to the
person of Tenant or of any other person or entity directly or indirectly
due to any cause whatsoever other than the willful misconduct or negligence
of Landlord, its contractors, servants, employees, agents, licensees or
invitees.
(b) Tenant shall indemnify and hold harmless Landlord from and against all
losses, costs and expenses, settlement payments (if such settlement is
approved by Tenant, which approval shall not be unreasonably withheld or
delayed) and all liabilities, damages and/or fines paid, incurred or
suffered by Landlord: (i) by reason of any breach, violation and/or
nonperformance by Tenant and/or Tenant's serants, employees, agents,
licensees or invitees, of any covenant or provision of this Lease; (ii) by
reason of or arising out of the occupancy or use by Tenant of the Real
Property, or any part thereof, including any claim, action, suit or
proceeding, threatened, instituted and/or made against Landlord arising out
of or in connection therewith; and/or (iii) from any other cause whatsoever
due to the negligence, or willful misconduct of Tenant and/or Tenant's
contractors, servants, employees, agents, licensees and/or invitees. This
indemnification by Tenant shall survive the termination or expiration of
this Lease.
13. Destruction--Fire or Other Casualty. In the event of partial or total
damage or destruction to the Leased Premises by fire, other casualty, or any
other cause whatsoever, then Tenant shall give immediate notice thereof to
Landlord and: (a) this Lease shall continue in full force and effect and (b)
Landlord shall thereupon cause such damage or destruction to the Leased Premises
(excluding Tenant's trade fixtures, moveable furniture and other personalty, to
be repaired with reasonable speed at the expense of Landlord, due allowance
being made for reasonable delay which may arise by reason of adjustment of logs
under insurance policies on the part of Landlord and/or Tenant, and for
reasonable delay on account of labor troubles, or any other cause beyond
Landlord's control, and to the extent that the Leased Premises are rendered
untenantable, the rent shall proportionately abate. Notwithstanding the
foregoing, Tenant may terminate this Lease if the rebuilding period, as
estimated by Landlord's architect within 30 days of the date of such
destruction, exceeds 120 days from the date of such notification, provided
Tenant gives Landlord written notice of such election within 10 days of its
receipt of said estimate. If Landlord fails to deliver such estimate to Tenant
within such thirty day period, Tenant may terminate this Lease by giving notice
to Landlord within fifteen days after Tenant's written request to Landlord of
such estimate if either Landlord fails to deliver an estimate during such
fifteen day period, or Landlord delivers an estimate within such time period
which states an estiated rebuilding period in excess of 120 days.
Landlord shall have no obligation to rebuild the Leased Premises if the
reasonably estimated cost of repair and reconstruction exceeds fifty percent
(50%) of the Full Insurable Value of the Leased Premises unless: (i) on the date
of such destruction there shall be four (4) or more years remaining in the Lease
Term or (ii) within thirty (30) days following the date of such destruction,
Tenant, at its option, shall enter into an agreement with Landlord to extend the
Lease Term for a period of at least four (4) years from the date of such
destruction. If Tenant so elects to extend the Lease Term, Landlord covenants to
promptly execute and deliver to Tenant a written agreement evidencing such
extension. In the event Tenant elects not to so extend this Lease, Landlord
shall have the right to either (i) waive the extension requirement and rebuild
the Leased Premises as set forth above, or (ii) terminate the Lease by giving
notice of such election to Tenant on or before forty (40) days after the date of
such destruction, in which event Landlord shall be entitled to retain all
insurance proceeds, except that portion of such insurance proceeds reasonably
attributable to any item on or within the Leased Premises which Tenant had a
right to remove upon expiration of the Lease Term, or which item was paid for by
Tenant rather than Landlord, it being agreed that such portion of the insurance
proceeds shall be paid promptly to Tenant.
Any insurance proceeds made available for reconstruction shall be disbursed
in accordance with the Deed of Trust, and, if not held by the beneficiary
thereof, shall be placed in a trust escrow account for the benefit of Landlord
and Tenant and shall be disbursed as reconstruction proceeds. In the event that
there are proceeds remaining from payments made under insurance policies
insuring against such damage or destruction - as is set forth in this Section
13, the premiums for which are paid by Tenant in accordance with this Lease and
following the application of such proceeds in accordance with the terms of this
Lease and/or the Deed of Trust, such balance of proceeds shall be paid promptly
to Tenant by Landlord.
14. Eminent Domain. If the entire Leased Premise, shall be substantially taken
(either temporarily or permanently) for public purposes, or in the event
Landlord shall convey or lease the Real Property to any public authority in
settlement of a threat of condemnation or taking, the rent shall be adjusted to
the date of such taking or leasing or conveyance, and this Lease shall thereupon
terminate. If only a portion of the Leased Premises shall be so taken, leased or
condemned, and as a result of such partial taking, Tenant is reasonably able to
use the remainder of the Leased Premises for the purposes intended hereunder,
the. this Lease shall not terminate but, effective as of the date of such
taking, leasing or condemnation, the rent hereunder shall be abated in an amount
thereof proportionate to the area of the Leased Premises _______________If
following such partial taking Tenant shall not be reasonably able to use the
remainder of the Leased Premises for the purposes intended hereunder, then this
Lease shall terminate as if the entire Leased Premises had been taken, leased or
condemned. In the event of a taking, leasing or condemnation as described in
this Section, whether or not there is a termination hereunder, Tenant shall have
no claim against Landlord, other than an adjustment of rent, to the.date of
taking, leasing or condemnation, and Tenant shall not be entitled to any portion
of any amount that may be regarded as damages or paid as a result or in
settlement of such proceedings or threat. Not withstanding the foregoing
sentence, Tenant shall be entitled to seek an award for its loss of personalty
and relocation expenses as a result of such taking.
15. Assigrment. Tenant covenants and agrees that the Leased Premises shall be
used and occupied only by Tenant or any permitted sublessees or assigns and only
for the Purpose above mentioned, in a careful, safe and proper manner. Tenant,
for itself, its heirs, distributees, personal representatives, legal
representatives, successors and assigns, expressly covenants that it shall not
assign, mortgage or encumber this Lease, nor sublease, or use or permit the
Leased Premises or any part thereof to be used by others, without the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld. In the event that Landlord shall give such consent,
Tenant shall nevertheless remain primarily liable for the terms of this Lease
and shall not be relieved from any liability Whatsoever under this Lease. Tenant
shall bear the reasonable legal review costs incurred by Landlord in connection
with such assignment or subleasing. Any consent by Landlord to an assignment or
subletting of this Lease shall not constitute a waiver of the necessity of such
consent as to any subsequent assigrment or subletting. Not withstanding the
foregoing, Landlord hereby agrees that Tenant may assign this Lease or sublet
all or any portion of the Leased Premises to Tenant's parent company or to any
company which is wholly owned by Tenant or by Tenant's parent company (each, an
"Affiliate") without any further consent from Landlord, so long as Tenant
nevertheless remains fully liable under this Lease.
In the event that the amount of the rent to be paid to Tenant by an
assignee or sublessee is greater than the rent required to be paid by Tenant to
Landlord pursuant to this Lease, such excess shall be the property of Tenant.
Any levy or sale in execution, or any assignment or sale in bankruptcy or
insolvency, or the appointment of a receiver or trustee of any of the property
of Tenant by a state or federal court, shall be deemed an assignment within the
meaning of this Section.
If this Lease be assigned without Landlord's consent, or if the Leased
Premises or any part thereof be subleased without Landlord's consent, then if
such assignment or subleasing is contrary to the terms of this Lease, (i) all
expenses incurred by Landlord in connection therewith, including but not limited
to, brokerage fees, costs and expenses incurred by Landlord's agents, servants,
independent contractors, and employees, shall be the obligation and shall be
immediately paid by Tenant at its sole cost and expense upon the receipt of a
statement therefor from Landlord, and (ii) Landlord may, after default by
Tenant, collect rent from the assignee, subtenant or occupant and apply the net
amount collected to the rent herein reserved, but no such collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, subtenant,
or occupant as tenant, or a release of Tenant from the further observance and
performance by Tenant of the covenants herein contained.
16. Defaults
(a) _______________ shall be deemed a material default by Tenant under
this Lease and a substantial breach of this Lease, entitling Landlord to
all remedies set forth below or existing at law or in equity:
(1) The filing of a petition by or against Tenant for debtor relief
as defined under the Federal Bankruptcy Code, as now or hereafter
amended or supplemented, or for reorganization, arrangement or other
rehabilitation within the meaning f the Bankruptcy Code, or the
commencement or proceeding for the dissolution or liquidation of
Tenant, whether instituted by or against Tenant, or for the receiver
or trustee of the property of Tenant, in each case filed by a party
other than Tenant, if not bonded or discharged within sixty (60) days
following the date of filing; for purposes of this subsection, the
word "Tenant" shall include any guarantor of Tenant's obligations
under this Lease;
(2) The making by Tenant of an assignment for the benefit of
creditors after notice to Tenant and a ten (10) to day opportunity
cure;
(3) The filing of a tax lien in excess of $50,000 against any
property of Tenant located within the Leased Premises after notice to
Tenant and a ten (10) day opportunity to cure;
(4) Tenant's causing or permitting the Leased Premises to be vacant,
the abandonment of the Leased Premises by Tenant and/or the cessation
by Tenant of active use of the Leased Premises for the purpose
specified herein after notice to Tenant and a ten (10) day opportunity
to cure, unless Tenant continues to observe all of the obligations and
covenants on its part to perform under this Lease (including payment
of Basic Annual Rent), maintains the heat throughout the heating
season at no less than 50 degrees F, and provides adequate security
for the Building;
(6) Failure of Tenant to make payment of the basic Annual Rent herein
reserved, or any part thereof, or any other sum required by the terms
of this Lease (including late charges on the foregoing as provided
herein) for a period of five (5) days after service of notice by
Landlord upon the Tenant that such payment is due (provided, however,
that Tenant shall be entitled to such notice and opportunity to cure
only two times in any twelve month period, and for the remainder of
such 12 month period, Tenant shall be in default for non-payment of
rent if any such payment is not made when due);
(7) A breach by Tenant in the performance of any other term, covenant
agreement or condition of this Lease, on the part of Tenant to be
performed, for a period of thirty (30) days after service of notice by
the Landlord upon the Tenant, unless cure of such default shall
reasonably require a longer period of time and Tenant shall have
commenced such cure during such thirty (30) day period, and shall
thereafter diligently prosecute such cure to completion.
(b) All rights and remedies of Landlord in this Lease enumerated
shall be cumulative, and none shall exclude any other right or
remedy, now or hereafter allowed by or available under any
statute, ordinance, rule of court, or the common law, either at
law or in equity or both. For the purposes of any suit brought or
based hereon, this Lease shall be construed to be a divisible
contract, to the end that successive actions may be maintained on
this Lease as successive periodic sums shall mature hereunder.
The failure of Landlord to insist, in any one or more instances
upon a strict performance of any of the covenants, terms and
conditions of this Lease, or to exercise any right or option
herein contained, shall not be construed as a waiver, or ,
relinquishment for the future, of such covenant, term, condition
right or option, but_____________ remain in full force and effect
unless the contrary is expressed by Landlord in writing. The
receipt by Landlord of rent, with knowledge of the breach of any
covenant hereof, shall not be deemed a -waiver of such breach,
and no waiver by Landlord of any provision hereof shall be deemed
to have been made unless expressed in writing and signed by
Landlord.
(c) In the event of a default of the nature set above, Landlord
may, at any time thereafter, at its forth in 16(a) above
election, without further notice to Tenant, terminate this and
Tenant's right to possession of the Leased Premises, and take
possession of the Leased Premises, and remove Tenant, any
occupant and any property therefrom, without relinquishing any
rights of Landlord against Tenant.
(d) If Tenant breaches this Lease as set forth above, Tenant
shall be obligated to, and shall pay to Landlord a. damages, upon
demand and Landlord shall be entitled to recover of and from
Tenant 'at the election of Landlord, all expenses ,which shall
have been incurred as a result of such breach, including the
costs of any proceedings which shall have been necessary in order
for Landlord to recover possession of the Leased Premises and the
expenses of rerenting the Leased Premises (including, but not
limited to, any commissions paid to any real estate agent in
connection therewith and actual attorneys' fees incurred at the
standard hourly rates for such attorneys); plus, if this Lease is
terminated, either:
(1) liquidated damages, in an amount which, at the time of
such termination is equal to the installments of Basic
Annual Rent and the aggregate of all sums payable hereunder
as additional rental ( the '"Additional Rental") (for such
purpose considering the annual amount of such Additional
Rental to be equal to the amount thereof paid in the lease
year or annualized portion thereof immediately preceding
such default) reserved hereunder, for the period which would
otherwise have constituted the unexpired portion of the then
current term of this Lease, said amount to be discounted at
the rate for U.S. Treasury Bills whose term is approximately
of the same duration as the unexpired term of this Lease; or
(2) damages (payable in monthly installments, in advance,
on the first day of each calendar month following such
termination and continuing until the date originally fixed
herein for the expiration of the then current term of this
Lease) in an amount or amounts equal to the sum of (i) the
aggregate expenses (other than Additional Rental) paid by
LandLord during the month immediately preceding such
calendar month for all such items as, by the terms of this
Lease, are required to be paid by Tenant, plus (ii) an
amount equal to the amount of the installment of Basic
Annual Rent which would have been payable by Tenant
hereunder in respect of such calendar month had this Lease
and the Lease Term not been so terminated, and (iii) the
monthly average of the Additional Rental payable in the
lease year or annualized portion thereof immediately
preceding such default, over the rents, if any, in fact,
collected by Landlord in respect of such calendar month
pursuant to either rerenting, or from any existing permitted
subleases, and any suit, action or proceeding brought to
collect the amount of the deficiency for any calendar month
shall not prejudice in any way the rights of Landlord to
collect the deficiency for any subsequent month by a similar
proceeding.
(e) No act or thing done by Landlord shall be deemed to be an
acceptance of a surrender of the Leased Premises, unless Landlord
shal1 execute a written release of Tenant. Tenant's liability
hereunder sha11 not be terminated by the execution of a new lease of
the Leased Premises by Landlord, regardless of the term of such new
lease. Separate actions may be maintained each ___________________
against Tenant to recover the damages due without waiting until the
end of the Term of his Lease to determine the aggregate amount of such
damages.
17. Acceptance of Leased Premises. Tenant's occupancy of the Leased Premises
shall constitute acceptance thereof as complying with all requirements of Tenant
and Landlord with respect to the condition, order and repair thereof; provided,
however, that if the Renovations are performed by Landlord, then the same shall
be subject to a punch-list to be scheduled by Landlord and Tenant upon
substantial completion of the Renovations, but prior to Tenant's move-in, and
latent defects in such construction of which Tenant gives Landlord written
notice within one (1) year after the date on which the Renovations are
substantially completed.
18. Access to Premises and Change in Services. Landlord and/or the authorized
representative of Landlord or any mortgagee or deed of trust holder shall have
the right without abatement of rent, to enter the Leased Premises at any
reasonable hour (except in emergencies) to examine the examine and/or to make
such repairs improvements and alterations as Landlord and/or such authorized
representative shall deem necessary (but Landlord shall not be obligated to do
so) for the safety and preservation of the Building, or for any other reasonable
purpose whatsoever, including exhibiting the Leased Premises to prospective
tenants or purchasers. Tenant shall have access to the Leased Premises seven (7)
days a week, twenty-four (24) hours a day throughout the Lease Term.
19. Estoppel Certificates. Each party agrees at any time and from time to time
upon not less than five (5) business days prior notice by the other party to
execute, acknowledge and deliver to the requesting party a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications) and the dates to which the rent and
other charges have been paid in advance, if any, and stating whether or not, to
the best knowledge of the signer of such certificate, the requesting party is in
breach and/or default in performance of any covenant, agreement or condition
contained in this Lease and, if so, specifying each such breach and/or default
of which the signer may have knowledge, and any other matters reasonably
requested in such estoppel certificate, it being intended that a such statement
delivered hereunder may be relied upon by any party not a party to this Lease.
20. Subordination. Subject to Tenant's receipt of a so called non-disturbance
agreement, from Landlord's lender, ground lessor, and any other person or entity
having an interest in the Real Property, each in a form reasonably acceptable to
Tenant and Landlord's lender, ground lessor or any other person or entity having
an interest in the Real Property, as the case may be, Tenant accepts this Lease,
and the tenancy created hereunder, subject and subordinate to any ground leases,
security interests, mortgages, deeds of trust or other financing arrangements
now or hereafter a lien upon or affecting the Leased Premises or any part or
parts thereof and to any extensions, modifications or amendments thereof
(collectively, the 'Liens') . As to all Liens existing of the date hereof,
Landlord hereby agrees to obtain such non-disturbance agreement within thirty
(30) days following the date of this Lease, and if Landlord fails to do so,
Tenant may terminate this Lease by so notifying Landlord within five (5) days
after the expiration of such thirty (30) day period. Notwithstanding any
language in this Lease to the contrary, Tenant may not begin its Renovations in
the Leased Premises until the non-disturbance agreement has been obtained, or
the date by which Tenant is entitled to terminate the Lease as aforesaid has
expired. Tenant shall, at any time hereafter, on request, execute any
instruments which may be necessary to subordinate, or render prior Tenant's
interest hereunder to such lien and the failure of Tenant to execute any such
instruments _______ default hereunder.
21. Attornment. Tenant agrees that upon any termination of Landlord's interest
in the Leased Premises Tenant shall, upon request, attorn to the person or
entity then holding title to the reversion of the Leased Premises (the
'Successor') and to all subsequent Successors (provided that such Successor
enters into a non-disturbance agreement in form reasonably acceptable to Tenant
and the Successor) and shall pay to the Successor all rents and other monies
required to be paid by the Tenant, hereunder and perform all of the other
covenants, agreements, provisions, conditions, obligations and/or duties of
Tenant in this Lease contained.
22. Notices. All notices, demands and requests required under this Lease shall
be in writing and shall be mailed by United States registered or certified mail,
return receipt requested, postage prepaid, or by Federal Express or other
nationally recognized overnight courier service, or hand-delivered with a
receipt and addressed (i) if to Landlord, c/o Manekin Corporation, 7165 Columbia
Gateway Drive, Columbia, Maryland 21046, Attn: General Counsel, with a copy to
Ann Clary Gordon, Esquire, c/o Shapiro and Olander, 36 S. Charles Street,
Baltimore, Maryland 21201 or (ii) if to Tenant, at the Leased Premises, with a
copy to Donald P. McPherson, III, c/o Piper and Marbury, 36 South Charles
Street, Baltimore, Maryland 21201. All notices delivered in the foregoing manner
shall be deemed delivered on the date the return receipt is executed or the date
the recipient refuses delivery. Notwithstanding the foregoing, all rental
payments and other charges due under this Lease shall be delivered to Landlord
at the address of Landlord set forth above, Attn: Accounting Department. Either
party may designate a change of address by written notice to the other party.
23. Landlord's Liability. The term 'Landlord, as used in this Lease means only
the owner, the mortgagee, or the trustee or the beneficiary under a deed of
trust, as the case may be, for the time being, of the Building (or the owner of
a lease of the Building), so that in the event of any transfer of title to
Landlord's estate and interest in the Leased Premises, the transferring entity
shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder thereafter accruing. It is understood that
Landlord on the date hereof is a Maryland limiter partnership, and that no
partner, general or limited, of said limited partnership, as it may no- or
hereafter be constituted, shall have any personal liability to Tenant and/or any
person or entity claiming under, by or through Tenant upon any action, claim,
suit or demand brought under or pursuant to the terms and conditions of this
Lease and/or arising out of the use or occupancy by Tenant of the Leased
Premises, other than to the extent of Landlord's interest in the Leased
Premises.
24. Separability, Enforceability. If any term or provision of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law. Notwithstanding any language in this Lease to the contrary, if
the Occupancy Date does not occur on or before July 1, 199 3 for any reason
within Landlord's reasonable control, this Lease shall terminate automatically
and neither party shall have any further liability to the other.
25. Captions. All headings anywhere contained in this Lease are intended for
convenience of reference only and are not to be deemed or taken as a summary of
the provisions to which they pertain or as a construction thereof.
26. Recordation. Tenant covenants that if at any time any mortgagee of
Landlord's interest in the Leased Premises, any trustee or beneficiary under a
deed of trust constituting a lien upon the Building of which deed of trust
Landlord is grantor, or a landlord of Landlord in respect of the real property
upon which the Building is situate, shall require the recordation of this Lease,
or if the recordation of this Lease shall be required by any valid governmental
order, or if any governmental authority having jurisdiction in the matter shall
assess and be entitled collect transfer taxes or documentary stamp taxes, or
both such taxes on this Lease, Tenant shall execute such acknowledgements as may
be necessary to effect such recordation and whichever party requires such
recordation shall pay all recording fees, transfer taxes and documentary stamp
taxes payable on, or in connection with, this Lease or such recordation.
27. Successors and Assigns. The covenants, conditions and agreements contained
in this Lease shall bind and inure to the benefit of Landlord and Tenant, and
their respective heirs, distributes, executors, administrators, successors,
personal and legal representatives and their permitted assigns.
28. Waiver of Jury Trial. Landlord and Tenant desire a prompt resolution of any
litigation between them with respect to this Lease. To that end, Landlord and
Tenant waive trial by jury in any action, suit, proceeding and/or counterclaim
brought by either against the other on any matters whatsoever arising out of or
in any way connected with this Lease, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the Leased Premises, any claim of injury or damage
and/or any statutory remedy. This waiver is knowingly, intentionally and
voluntarily made by Tenant. Tenant acknowledges that neither Landlord nor any
person acting on behalf of Landlord has made any representations of fact to
induce this waiver of trial by jury or in any way to modify or nullify its
effect. Tenant further acknowledges that it has been represented (or has had the
opportunity to be represented) in the signing of this Lease and the making of
this waiver by independent legal counsel, selected of its own free will, and
that it has had the opportunity to discuss this waiver with counsel. Tenant
further acknowledges that it has read and understands the meaning and
ramifications of this waiver of jury trial.
29. Miscellaneous.
(a) As used in this Lease: (1) the masculine shall be deemed to include
the feminine and neuter and vice-versa; and (2) the singular shall be
deemed to include the plural and vice-versa.
(b) This Lease was made in the State of Maryland and shall be governed by
and construed in all respects in accordance with the laws of the State of
Maryland.
(c) Tenant covenants and agrees that it shall not inscribe, affix, or
otherwise display signs, advertisements or notices in, on, upon or behind
any windows or on any door, partition or other part of the interior or
exterior of the Building without the prior written consent of Landlord
which consent shall not be unreasonably withheld or delayed. If such
consent be given by Landlord, any such sign, advertisement, or notice shall
be inscribed, painted or affixed by Landlord, or a company approved by
Landlord, but the cost of the same shall be charged to and be paid by
Tenant, and Tenant agrees to pay the same promptly, on demand.
Notwithstanding the foregoing, Landlord hereby agrees that Tenant will have
the right, at its sole cost and expense, to display an identification sign
on the Building. Such sign shall comply with all applicable building code
and zoning requirements, as well as all covenants and other restrictions
affecting the Leased Premises.
(d) Tenant _________ agree that is shall not attach or place awnings,
antennas or other projections to -he outside walls or any exterior portion
of the Building nor shall any curtains, blinds, shades or screens be
attached to or hung in, or used in connection with, any window or door of
the Leased Premises without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed.
(e) Tenant, Tenant's servants, agents, invitees, employees and/or
licensees shall not park on, store on, or otherwise utilize any parking or
loading areas on the Real Property, except as shown on Exhibit A.
(f) Except as otherwise specifically provided in this Lease, no abatement,
refund, offset, diminution or reduction of rent, charges or other
compensation shall be claimed by or allowed to Tenant, or any person
claiming under it, under any circumstances, whether for inconvenience,
discomfort, interruption of business, or otherwise, arising from the making
of alterations, changes, additions, improvements or repairs to the Building
or the Leased Premises, by virtue or because of any present or future
governmental laws, ordinances, or for any other cause or reason.
(g) Landlord covenants and agrees that, upon the payment of the rent
herein provided and the performance by Tenant of all the covenants,
agreements and provisions hereof on Tenant's part to be kept and performed,
Tenant shall have, hold and enjoy the Leased Premises, free from any
interference whatsoever by, from or through Landlord or anyone claiming by,
from or through Landlord, except as may be otherwise expressly provided
herein.
30. Environmental Assurances.
(a) Covenants. Tenant covenants with Landlord:
(1) that it shall not Generate (as defined below) Hazardous
Substances (as defined below) at, to or from the Leased Premises
except as specifically set forth on the 1991 Hazardous Waste Report to
the U.S. Environmental Protection Agency, a copy of which is attached
to this Lease as Exhibit D, and any other materials used in the
research, development or production of agricultural biologicals or
generated in connection with the normal operations of Tenant's
business and only in compliance with all governmental requirements;
(2) to comply with all obligations imposed by applicable law, and
regulations promulgated thereunder, and all other restrictions and
regulations upon the Generation of Hazardous Substances at, to or from
the Leased Premises;
(3) to deliver promptly to Landlord true and complete copies of all
notices received by Tenant from any governmental authority with
respect to the Generation by Tenant of Hazardous Substances (whether
or not at, to or from the Leased Premises);
(4) to complete fully, truthfully and promptly any questionnaires
sent by Landlord with respect to Tenant's use of the Leased Premises
and Generation of Hazardous Substances;
(5) to permit entry onto the Leased Premises by Landlord or
Landlord's representatives at any reasonable time to verify and
monitor Tenant's compliance with its representations, warranties and
covenants set forth in this Section;
(6) to pay to Landlord, as additional rent, the costs incurred by
Landlord hereunder, including the costs of such monitoring and
verification; and
(7) to furnish to Landlord, at the expiration of the Lease Term or at
the sooner termination of the ease Term as herein provided, a
certification to Landlord, equivalent to that provided by Landlord in
Section 30 (e) , from an environmental - I audit company acceptable to
Landlord to the effect that, based upon an inspection conducted by
such environmental audit company not more than thirty (30) days prior
to the expiration or termination of the Lease Terrn, the Leased
Premises are free from Hazardous Substances.
(b) Tenant's Indemnification. Tenant agrees to indemnify and defend
Landlord (with legal counsel reasonably acceptable to Landlord) from and
against any costs, fees, or expenses (including, without limitation,
environmental assessment, investigation and environmental remediation
expenses, third party claims and environmental impairment expenses and
reasonable attorneys' fees and expenses) incurred by Landlord in connection
with Tenant's Generation of Hazardous Substances at, to or from the Leased
Premises or in connection with Tenant's failure to comply with its
representations, warranties and, covenants set forth in this Section. This
indemnification by Tenant will remain in effect after the termination or
expiration of this Lease.
(c) Definitions. The term "Hazardous Substance" means (i) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act of 1976
(42.U.S.C. 6901 et seq.), as amended from time to time, and regulations
promulgated thereunder; (ii) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. 9601 et seq.), as amended from time to time, and
regulations promulgated thereunder; (iii) any "oil, petroleum products, and
their byproducts" as defined by the Maryland Environment Code Ann. 4411 (3)
(i) , as amended from time to time, and regulations promulgated thereunder;
(iv) any "controlled hazardous substance" or "hazardous substance" as
defined by the Maryland Environment Code Ann., Title 7, subtitle 2, as
amended from time to time, and regulations promulgated thereunder; (v) any
"infectious waste", as defined by the Maryland Environment Code Ann. 9-227,
as amended from time to time, and regulations promulgated thereunder; (vi)
any substance the presence of which on the Real Property is prohibited,
regulated or restricted by any law or regulation similar to those set forth
in this definition; and (vii) any other substance which by law or
regulation requires special handling in its Generation. The term "To
Generate" means to use, collect, generate, store, transport, treat or
dispose of.
(d) Landlord's Indemnification. Landlord agrees to indemnify and defend
Tenant (with legal counsel reasonably acceptable to Tenant) from and
against any costs, fees or expenses (including, without limitation,
environmental assessment, investigation and environmental remediation
expenses, third party claims and environmental impairment expenses and
reasonable attorneys' fees and expenses) incurred by Tenant in connection
with Landlord's Generation of Hazardous Substances at, to or from the
Leased Premises. This indemnification by Landlord will remain in effect
after the termination or expiration of this Lease.
(e) Landlord's Covenant. Landlord hereby agrees to provide to Tenant,
within thirty (30) days following the date hereof, an environmental report
from Law Engineering with respect to the Leased Premises (the 'Audit'), to
be based upon an inspection conducted within thirty (30) days of the date
hereof. If the Audit indicates that the Leased Premises are not free from
Hazardous Substances, then Landlord hereby agrees to perform any required
remediation in a prompt and diligent manner in order for the Leased
Premises to be certified as free from Hazardous Substances. If the Audit
indicates that Hazardous Substances are present in the Leased Premises
which pose a health hazard and render the Leased Premises unsafe for use by
Tenant, then Tenant may terminate this Lease if the same is not remediated
by Landlord within forty-five (45) days after the date of delivery of such
report to Tenant. Such termination shall be effected by delivering written
notice to Landlord of uch _________ five (5) days after the expiration of
such forty-five (45) day period.
31. Intentionally Deleted.
32. Authority. Tenant warrants to Landlord that Tenant is a corporation
organized and -validly existing in good standing under the laws of the State of
Delaware and qualified to transact business in the State of Maryland. In
addition, Tenant warrants to Landlord that this Lease has been properly
authorized and executed by Tenant and is binding upon Tenant in accordance with
its terms. Tenant's resident agent's name and address in the State Of Maryland
are Joseph Lutz, 5526 Hayledge Court, Columbia, Maryland 21045.
33. Force Majeure. In the event that either party hereto shall be delayed or
hindered in or prevented, by reason of weather, strikes, lock-outs, labor
troubles, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war, Acts of God or other
reason of a like nature (excluding lack of funds) not the fault of the party
delayed from performing work or doing any act required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period of the performance of any such act shall be extended for a period
equivalent to the period of such delay. The party so delayed shall give prompt
notice thereof to the other party. The provisions of this Section 33 shall not
operate to excuse Tenant from prompt payment of rent, additional rent or any
other payments required by the terms of this Lease.
34. Real Estate Broker. Landlord and Tenant warrant that no real estate brokers
other than Manekin Corporation and Barnes, Morris, Pardoe & Foster have been
employed, caused to be employed, or otherwise utilized in bringing about this
Lease, and agree to hold harmless and indemnify each other with respect to the
foregoing warranty. All commissions payable to Manekin Corporation and Barnes,
Morris, Pardoe & Foster in connection with this Lease shall be paid by Landlord
in accordance with a separate agreement.
35. Security Deposit. Tenant, contemporaneously with the execution of this
Lease, shall deposit with Landlord the sum of Forty-Three Thousand One Hundred
Sixty Dollars and Eighty-Three Cents ($43,160.83) as a security deposit (which,
along with all interest which may accrue thereon is hereinafter referred to as
the 'Deposit'), which, to the extent the same has not been applied or exhausted
pursuant to the further terms hereof, shall be returned by Landlord to Tenant
following the expiration of the Lease Term. In addition to any and all other
remedies available to Landlord under this Lease, Landlord shall have the right
to apply the Deposit to cure any breach by Tenant of any of Tenant's obligations
or duties pursuant to this Lease, and Landlord shall be entitled upon any such
application of the Deposit to require Tenant immediately to restore the same to
the dollar amount set forth in this Section. Landlord shall be entitled to the
full use of the Deposit, and shall not be required to escrow or otherwise
segregate the Deposit. The Deposit shall be maintained by Landlord in a
federally insured interest bearing account. Tenant's federal income tax
identification number is: 22-2380817.
36. Holding Over. If Tenant holds possession of the Leased Premises after the
termination of this Lease without Landlord's written consent, Tenant shall
become a tenant from month to month at double the rent payable during the final
lease year and upon all other terms herein specified and shall continue to be
such tenant from month to month until such tenancy shall be terminated by either
party giving the other a written notice of at least thirty (30) days of its
intention to terminate such tenancy. Nothing contained in this Lease shall be
construed as a consent by Landlord to the occupancy or possession of the Leased
Premises by Tenant after termination of this Lease. Upon the termination of this
Lease, Landlord shall be entitled to the benefit of all public general or public
local laws relating to the speedy recovery of the possession of lands and
tenements held over by tenants, that may now or hereafter be in force.
37. Net Lease. It is the purpose and intent of Landlord and Tenant that the
Basic Annual Rent shall be net to Landlord, so that this Lease shall yield, net,
to Landlord, the Basic Annual Rent specified in Section 4 hereof in each lease
year during the Term of this Lease, and that all costs, expenses and charges ,
of every kind and nature relating to the Leased Premises (except any income,,
franchise or inheritance taxes of Landlord, or any payments on account of
interest or principal under any Deed of Trust executed by Landlord which shall
be a lien on the Leased Premises and any other costs specifically payable by
Landlord under the terms of this Lease) which may arise or become due during the
Term of this Lease shall be paid by Tenant, except as otherwise provided for
herein and that Landlord shall be indemnified and saved harmless by Tenant from
and against the same.
38. Riders. Six (6) riders consisting of eight (8) pages are attached to this
Lease and made a part of it.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this Lease
under seal as of the day and year first above written.
M.O.R. XVIII ASSOCIATES LIMITED
PARTNERSHIP
WITNESS/ATTEST BY: RK & DM, Inc.
___________________ BY:________________________(SEAL)
Name: Richard M. Alter
Title: President
Landlord
CROP GENETICS INTERNATIONAL
CORPORATION
__________________ By:________________________(SEAL)
Name: Joseph L. Kelly
Title: President
Tenant
STATE OF MARYLAND, CITY/COUNTY OF______________ TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1992, before me, the
subscriber, a Notary Public of the State of Maryland, City/County of Anne
Arundel, personally appeared Richard M. Alter, President of RA & DM, Inc.,
general partner of M.O.R. XVIII Associates Limited Partnership, Landlord, and he
acknowledged the foregoing Lease Agreement to be the act and deed of said
limited partnership.
WITNESS my hand and Notarial Seal.
My Commission Expires:
_________________________________________
11-1-93 Notary Public
<PAGE>
STATE OF MARYLAND CITY/COUNTY OF ANNE ARUNDEL TO WIT:
I HEREBY CERTIFY that on this 28th day of August, 1992, before me, the
subscriber, a Notary Public of the State of Maryland, City/County of Anne
Arundel, personally appeared Joseph Kelly, President of Corp Genetics
International Corporation, Tenant, and he acknowledged the foregoing Lease
Agreement to be the act and deed of said body corporate.
WITNESS my hand and Notarial Seal.
My Commission Expires:
____________________________________ ___________________________
My commission expires October 1, 1994 Notary Public
<PAGE>
RIDER NO. I
Landlord's Consent
Notwithstanding what is otherwise stated herein, whenever Landlord's
consent is required under this Lease, such consent shall not be unreasonably
withheld, conditioned or delayed.
<PAGE>
RIDER NO. 2
Expansion Option
So long as this Lease is then in full force and effect and Tenant is not in
default of any covenant or obligation to be performed by Tenant under this
Lease, Tenant shall have the right, throughout the Lease Term, to expand the
Leased Premises by requesting that Landlord increase the size of the existing
Building, or by requesting that Landlord build a new structure or structures on
the Land. If Tenant's expansion needs cannot reasonably be met by increasing the
size of the existing Building or by building a new structure or structures on
the Land, then Tenant may alternatively request that Landlord build a structure
or structures on the 5.3 acre parcel adjacent to the land known as Parcel M-3,
as more particularly shown on Exhibit A attached hereto (the 'Expansion
Parcel'), if such Expansion Parcel is so available. The Expansion Parcel is
designated as Parcel M-3 on the Plat entitled 'Parcels M-2 and M-3, A
Resubdivision of Parcel M-1, Plat No. 51941, and recorded among the Land Records
of Howard County, Maryland as Plat No. 5698. Tenant's right to have the Leased
Premises expanded as aforesaid is subject to Landlord and Tenant agreeing upon
the terms and conditions upon which such expansion ,ill be effected. In any
event, the construction of any improvements upon the Land or the Expansion
Parcel shall be subject to Landlord's prior written approval. Landlord shall
have the right to withhold such approval if, in Landlord's reasonable judgment,
any such expanded area shall adversely affect the value of the existing
improvements on the Land, or if Landlord determines that such expanded area
would not be leasable in the general market upon the expiration of the Lease
Term. The parties further agree that any and all costs and expenses. arising out
of or payable in connection with any such expansion, including, but not limited
to, architectural, engineering and legal fees, petit and application fees, a
development or supervisory fee to Landlord, and acquisition and/or carrying
costs of the Expansion Parcel (such acquisition and/or carrying costs not to
exceed the fair market rental rate for the Expansion Parcel, determined pursuant
to the agreement and appraisal procedure set forth in Rider No. 5), if
applicable, shall be paid by Tenant, at its sole cost and expense.
Landlord's obligations under this Rider No. 2 shall be subject to Landlord
obtaining the financing for such expansion on terms which are satisfactory to
Landlord.
Tenant's expansion option shall be further subject to compliance with all
applicable la-9, including zoning ordinances and other County, state or local
restrictions, as well as the covenants and restrictions applicable to the Land
and the Expansion Parcel.
<PAGE>
RIDER NO. 3
Right of First Offer
If at any time during the term of this Lease, Landlord shall desire to sell
its leasehold interest in the Real Property, Landlord shall notify Tenant in
writing and such notice (,Landlord's Notice,) shall contain a statement of the
terms and conditions upon which Landlord is willing to sell its leasehold
interest in the Real Property to any third party. For a period of 30 days after
Landlord's Notice is given, Tenant shall have the right and option (the
'Option') to elect to purchase Landlord's leasehold interest in the Real
Property upon the terms and conditions set forth in Landlord's Notice, provided
that Tenant is not in default of the Lease on the date of such Notice of
Exercise, as hereinafter defined. Such option shall be exercised, if at all, by
giving Landlord written notice thereof ('Notice of Exercise') within such 30-day
period and depositing with Landlord a deposit in an amount equal to five percent
(5%) of the purchase price set forth in Landlord's notice. If Tenant fails to
give its Notice of Exercise within such 30-day period, Landlord shall have the
right, for a period of one year after the expiration of such 30-day period, to
sell its leasehold interest in the Real Property at a purchase price which is
not less than ninety percent (90%) of the purchase price set forth in Landlord's
Notice to Tenant. if Landlord does not sell its leasehold interest in the Real
Property to a third party within such one year period, and subsequently desires
to offer its leasehold interest in the Real Property for sale, or if Landlord
desires to offer its leasehold interest in the Real Property at a purchase price
which is less than ninety percent (90%) of the purchase price contained in the
previous Landlord's Notice to Tenant, Landlord shall not sell its leasehold
interest in the Real Property without first giving a new Landlord's Notice
offering to sell its leasehold interest in the Real Property to Tenant and
allowing Tenant thirty (30) days to accept such offer, in accordance with and as
more specifically set forth in the preceding provisions. In the event that
Landlord sells its leasehold interest in the Real Property to a third party
pursuant to the provisions of this Rider No. 3, such sale shall be made subject
to all of the terms and conditions of this Lease, with the exception of this
Rider No. 3. This Option shall not be separated from the Lease or transferred or
assigned by Tenant independently of the leasehold interest without the prior
written consent of Landlord.
The consummation of such purchase by Tenant (the 'Closing') shall be held
in Baltimore, Maryland, at a time and place mutually agreeable to Landlord and
Tenant, but by no later than 90 days after the date of the Notice of Exercise.
Notwithstanding anything in this Rider No. 3 to the contrary, it is
specifically understood and agreed that Tenant's option shall apply only to the
sale of Landlord's leasehold interest in the Real Property and shall have no
application whatsoever to any transfer, sale or assignment of any partnership
interests in Landlord (other than the transfer of all or substantially all of
such interests) or any offer or bid by a purchaser at any sale resulting from a
foreclosure of the lien of any Deed of Trust affecting the Real Property.
Upon the completion of the purchase under this Option but not prior
thereto, this Lease and all obligations hereunder (including the obligation to
pay Rent) shall terminate with respect to the Leased Premises, except with
respect to obligations and liabilities of the parties, actual or contingent,
under this Lease which arose on or prior to such date of purchase, all of which
obligations and liabilities shall survive such purchase.
If Tenant fails or refuses to purchase or pay for Landlord's interest in
the Real Property in accordance with and by the time required by this Rider,
then, Tenant shall have no further rights whatsoever under this Rider and the
Option shall be terminated, null and void. Landlord's only remedy if Tenant
fails to complete the purchase will be to retain the deposit Tenant deposited
with Landlord with the Notice of Exercise.
At the time Landlord offers to sell to Tenant its leasehold interest in the
Real Property, Landlord hereby agrees to request the consent of the owner of the
Real Property's revisionary interest (the 'Fee owner') to sell such reversionary
interest to Tenant in order to effect a simultaneous sale to Tenant of the
leasehold and reversionary interests. In the event the Fee Owner grants its
consent to such sale to Tenant, the sale of the Real Property shall be upon all
of the terms and conditions as are set forth in this Rider No. 3 except that it
shall pertain to the sale of the Real Property in fee simple so that the
purchase price and all other terms and conditions will be adjusted or revised
accordingly.
<PAGE>
RIDER No. 4
Right of First Refusal
(Expansion Parcel)
Tenant shall have the right of first refusal (the 'First Refusal Right') to
lease or purchase the Expansion Parcel on the terms and conditions as the
Expansion Parcel is sought to be leased or purchased, as the case may be, by a
bona fide prospective tenant or purchaser, as the case may be, of the Expansion
Parcel and acceptable to Landlord (the 'Expansion Offer') . Tenant's exercise of
its First Refusal Right shall be effective only upon written notification by
Tenant to Landlord thereof. Such notification must be given to Landlord before
the close of business ten (10) business days after Tenant's receipt of
Landlord's written notification to Tenant of the Expansion Offer.
In the event Tenant fails to so notify Landlord within said 10 day period,
Landlord shall be free to lease or sell, as the case may be, the Expansion
Parcel for a period of one year after the expiration of such 10-day period, at a
rental rate or purchase price, as the case may be, which is not less than ninety
percent (90t) of the rental rate or purchase price, as the case may be, set
forth in the Expansion Offer. If Landlord does not lease or sell the Expansion
Parcel within such one year period and subsequently receives a bona fide offer
to lease or purchase the same on terms acceptable to Landlord, or if Landlord
desires to lease or sell the Expansion Parcel at a rental rate or purchase
price, as the case may be, which is less than ninety percent (90%) of the rental
rate or purchase price contained in the precious Expansion Offer to Tenant, then
Landlord shall not lease or sell the Expansion Parcel without first giving a
new. Expansion Offer to Tenant and allowing Tenant 10 days to accept such offer
in accordance with and as more specifically set forth in the preceding
provisions. In the event that Landlord sells the Expansion Parcel to a third
party pursuant to the provisions of this Rider No. 4, such sale shall be made
subject to all of the terms and conditions of this Lease, with the exception of
this Rider No. 4.
This First Refusal Right shall not be separated from the Lease or
transferred by Tenant independently of the leasehold interest without the prior
written consent of Landlord.
Notwithstanding any other provision hereof, (a) Tenant shall not be
entitled to exercise the rights accorded to Tenant in the first paragraph,
unless at the date of such exercise, Tenant is not in default in the payment of
any sums due hereunder or any other material obligation imposed upon Tenant by
the Lease, and (b) this First Refusal Right shall have no application whatsoever
to any transfer, sale or assignment of any partnership interests in Landlord
(other than a transfer of all or substantially all of such interests) or any
offer or bid by a purchaser at any sale resulting from a foreclosure of the lien
of any deed of trust, mortgage or similar instrument affecting the Expansion
Parcel.
Landlord hereby agrees to execute a Memorandum- for recordation among the
Land Records of Howard County, Maryland for purposes of confirming the rights
granted to Tenant pursuant to this Rider No. 4, and Tenant's expansion rights
respecting the Expansion Parcel pursuant to Rider No. 2, so long as such
Memorandum is prepared by Tenant and acceptable in form and substance to
Landlord and Landlord's counsel, Tenant pays all recording costs and transfer
and documentary taxes, if any, arising out of such recordation, and such
recording is consented to in advance by Landlord's lender.
<PAGE>
RIDER NO. 5
Renewal Option
A. Provided (i) this Lease is then in full force and effect, (ii) Tenant is
not in default of any monetary obligation under this Lease either on the date
Tenant elects to renew or on the date the renewal term commences, then Tenant
shall have the right to renew this Lease with respect to all, and not less than
all, of the space then leased by Tenant under this Lease, for two (2) renewal
terms of five (5)' years each (the 'Renewal Terms') immediately following the
expiration of the original term and the first renewal term, as the case may be,
on the same terms, conditions, and provision. a-, are set forth in this Lease
with the same force and effect as though this Lease had originally provided for
an approximately seventeen (17) or twenty-two (22) year term, save that:
(i) there shall be no further right of renewal, after the second
Renewal Term; and
(ii) the Basic Annual Rent payable during each Renewal Term shall be
increased to ninety-five, percent (95t) of the prevailing 'Fair Market
Rental Rate, (as hereinafter defined) as of the commencement of the
applicable Renewal Term, but in no event shall the Basic Annual Rent
payable by Tenant during each Renewal Term be less than the Basic Annual
Rent payable by Tenant (on a per square foot basis) during the immediately
preceding lease year.
B. 'Fair Market Rental Rate' shall be the amount agreed upon by Landlord
and Tenant as the then prevailing market rent for Class A office space for
comparable buildings in the Columbia, Maryland office market. If the parties
fail to reach agreement as to the Fair Market Rental Rate within thirty (30)
days after Tenant exercises its renewal option, then 'Fair Market Rental Rate'
shall be determined by an appraisal conducted as follows:
Within five (5) business days after the expiration of the aforesaid
thirty (30) day period, Landlord and Tenant shall give written notice to
the other that each, at its own expense, has hired and appointed a
disinterested person of recognized competence and professional experience
as an appraiser of comparable commercial and industrial real estate in the
Baltimore-Washington Metropolitan Area. The two appraisers thus appointed
shall mutually agree upon the appointment of a third appraiser, the cost of
which shall be shared equally by Landlord and Tenant, which appraiser shall
also be a disinterested person of recognized competence and professional
experience as an appraiser of comparable commercial and industrial real
estate in the Baltimore-Washington Metropolitan Area. Each appraiser
appointed pursuant to this Rider shall bear the designation of title "MAI".
In the event that the two appraisers shall be unable to agree, within ten
(10) days after their appointment, on the appointment of the third
appraiser, then Tenant shall choose three appraisers from whom Landlord
shall choose one who shall serve as the third appraiser. Landlord shall
notify Tenant of the selection of the third appraiser within ten (10) days
of Tenant's notice to Landlord of the selection of such three appraisers
from which Landlord is to choose. The third appraiser shall as promptly as
possible, but in no event more than thirty (30) days after the date of his
selection, conduct an appraisal of the Leased Premises for purposes of
__________ the then 'Fair Market Rental Rate'. Landlord and Tenant shall
each be entitled to present evidence and argument to the third appraiser.
Upon completion of his appraisal, the third appraiser shall immediately
give written notice to the parties hereto stating his determination, and
shall furnish to each party hereto a copy of such determination signed by
him which determination shall be final and binding on the parties. Provided
however, that if such determination shall be unsatisfactory to Tenant,
Tenant shall have the right to withdraw Tenant's exercise of the renewal
option by so notifying Landlord within fifteen (15) days following the
arbitrator's determination of the renewal rent, in which event Tenant shall
promptly reimburse Landlord for any and all costs incurred by Landlord in
connection with the appraisal process described above.
C. Tenant shall be deemed to have waived the right to exercise this renewal
option unless not less than one (1) year prior to the expiration of the Initial
Term or the first Renewal Term, as the case may be, Tenant shall have notified
Landlord in writing of Tenant's election to renew (the 'Renewal Notice') . Time
is of the essence with respect to Tenant's rights under this Rider No. 2 and
Tenant acknowledges that Landlord requires strict adherence to the requirement
that the Renewal Notice be timely and in writing, except that the parties do not
intend that the exercise of the renewal option pass by inadvertence. Therefore,
if Tenant does not exercise the option by the required date, Landlord will so
notify Tenant and provide fifteen (15) days from the date of such notice for
Tenant to exercise such option.
<PAGE>
RIDER NO. 6
Right of Cancellation
Tenant shall have the right to terminate this Lease on the last day of the
third (3rd) Lease Year (the "Cancellation Date"), provided that:
(a) Tenant shall have given to Landlord written notice of such
election to terminate at least one (1) year prior to the Cancellation Date
(the "Notice");
(b) Tenant, on the date Tenant gives such Notice and on the
Cancellation Date, shall not be in breach or default of any agreement,
condition or covenant by which Tenant is obligated under this Lease;
(c) Tenant shall have paid to Landlord on or before the Cancellation
Date in addition to any other amounts that may be due under this Lease
prior to the Cancellation Date, the amount of Six Hundred Fifty-three
Thousand Seventy- five Dollars ($653,075.00) . Such amount so payable by
Tenant represents liquidated damages for terminating this Lease prior to
the expiration of the original Lease Term, such damages not other-wise
being susceptible to reasonable calculation; and
(d) On or before the Cancellation Date, Tenant returns the Leased
Premises to the condition to which the Leased Premises would have been
required to have been returned upon the expiration of the Lease Term
pursuant to the provisions of Section 6 of this Lease.
Time is of the essence with respect to Tenant's exercise of its rights
under this Rider, and Tenant acknowledges that Landlord requires strict
adherence to the requirement that the Notice be timely made and in writing.
<PAGE>
Exhibit A
Expansion Parcel (M-3)
Graphic Image
See Appendix
<PAGE>
EXHIBIT B
HVAC SYSTEM
PREVENTATIVE MAINTENANCE
AND
FULL PARTS AND LABOR SERVICING
MINIMUM SERVICE SPECIFICATIONS
I. Full Parts & Labor
A. The services provided are meant to be for full parts and labor on the
installed equipment as detailed on a separate sheet. Such service
shall include all repair. resulting from malfunctions discovered
during inspections and emergency service requests.
B. Components that may be obsolete will be repaired until such parts are
no longer repairable and the equipment must be replaced.
II. Inspections Shall be Provided as follows:
A. General: Performed at all inspections
I. Replace all filters as required
2. Lubricate all motors and bearings
3. Adjust and/or replace all fan belts
4. Clean grills, etc., as required
B. Spring/Summer:
I. Check refrigerant charge and/or temperature difference across
evaporator coil
2. Check refrigerant piping for leaks with electronic leak-detector
3. Check all operating and safety controls for cooling
4. Check system operation - (operating pressures, super heat, compressor
running current, condensate removal, etc.)
5. Clean condenser and/or evaporator coil as required
6. Check and tighten all electrical connections at unit as required
C. Fall/Winter:
1. Check system operation - (operating pressures, etc.)
2. Check all operating and safety controls for heating
3. Check and tighten all electrical connections at unit as required
EXHIBIT B
LANDLORD
TENANT
<PAGE>
EXHIBIT C
CERTIFICATION OF HVAC SYSTEM
BY LICENSED MECHANIC
BUILDING ADDRESS:________________________________________
TO WHOM IT MAY CONCERN:
The heating and cooling equipment which conditions the air in the subject space
has been thoroughly inspected- All necessary repairs, replacements, and service
have been performed to insure that the system operates properly in the following
aspects:
1. All electrical circuitry and all components function properly.
2. Refrigerant charge is correct.
3. Evaporator and condenser coils are clean.
4. Belts are in good condition and all new filters installed.
5 All bearings are in good order and properly greased.
6. All wiring is in order and properly secured.
7. All access panels are in place.
8. All air diffusers include operational dampering devices.
9 All oil-heating appliances are clean and properly adjusted.
10. Components requiring clear and unobstructed condition for proper
operation are in order.
11. All safety devices are operational.
12. Thermostats are operational, calibrated, and in proper condition.
NAME OF CERTIFYING CONTRACTOR:
By: (NAME OF COMPANY REPRESENTATIVE):
LICENSE NO.:
DATE OF CERTIFICATION:
EXHIBIT C
Landlord ______________
<PAGE>
Exhibit D - Page 1 of 4
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 2 of 4
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 3 of 4
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 4 of 4
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 1 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 2 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 3 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 4 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 5 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 6 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 7 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 8 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 9 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 10 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 11 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit D - Page 12 of 12
Graphic Image
See Appendix
<PAGE>
Exhibit E
Covenants and Restrictions
1. Subject to the terms and provisions contained in an instrument entitled
'Deed, Agreement and Declaration' dated December 13, 1966 and recorded among the
Land Records of Howard County in Liber 463, folio 158, between The Columbia Park
and Recreation Association, Inc. and C. Aileen Ames.
2. Subject to the terms and provisions as contained in Corporate Park
Declaration of Covenants, Conditions and Restrictions recorded among the Land
Records of Howard County in Liber 1083, folio 392 by The Howard Research and
Development Corporation.
3. Subject to the terms and conditions of that certain Deed dated December
29, 1982 by and between The Howard Research and Development Corporation and
K.O.R. XVIII Associates Limited Partnership recorded among the Land Records of
Howard County, Maryland in Liber 1135, folio 573.
079JC4 68.txt
41872.017:02
EXHIBIT E
LANDLORD__________________
TENANT ___________________
<PAGE>
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT (this 'Agreement') is made this 2nd day of October, 1992, by
and among New England Life Pension Properties; A Real Estate Limited Partnership
("NELPP"), R. Lawrence Koch, Jr. and Timothy Dell, trustees for NELPP
(collectively referred to herein as the "Trustees") , and Crop Genetics
International Corporation, a Delaware corporation ('Tenant").
Explanatory Statement
A. Pursuant to an Agreement of Lease dated October 1, 1992 (the "Lease'),
as amended by an Amendment of Lease dated October 1, 1992, Tenant has agreed to
lease from M.O.R. XVIII Associates Limited Partnership ('Landlord') the premises
known as Parcel M-2 located in the Rivers Corporate Park in Howard County,
Maryland and all improvements thereon (the 'Leased Premises').
B. NELPP is the owner in fee simple of the "Leased Premises and the
beneficiary under a Purchase Money Deed of Trust dated May 29, 1982 by Landlord
to the trustees named therein, as amended by a First Modification of Deed of
Trust dated July 1, 1983 between Landlord and certain trustees named therein,
and a Second Modification of Deed of Trust dated March 28, 1984 between Landlord
and the Trustees (collectively, the 'Deed of Trust').
C. Landlord is the leaseholder owner of the Leased Premises pursuant to an
unrecorded Ground Lease dated March 28, 1984 between NELPP and Landlord (the
'Ground Lease").
D. Tenant desires to receive certain assurances from NELPP and the Trustees
that Tenant's possession of the Leased Premises will not be disturbed by NELPP
or Trustees, and NELPP and the Trustees are willing to grant certain assurances
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the Explanatory Statement, the
mutual covenants herein contained and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereby agree
as follows:
1. Tenant acknowledges that the Lease and all of the rights of Tenant
thereunder shall be and remain subject and subordinate in all respects to
the Ground Lease, the Deed of Trust and all of the rights of NELPP, the
Trustees and the beneficiary under the Deed of Trust. Tenant further agrees
that in the event NELPP or the purchaser at a foreclosure sale shall obtain
possession of, or acquire title to, Landlord's leasehold interest in the
Leased Premises pursuant to the Deed of Trust, or in the event that the
Ground Lease is terminated, cancelled or surrendered, Tenant shall attorn
to and recognize NELPP or the purchaser at foreclosure sale, as the case
may be, as Tenant's landlord for the balance of the term of the Lease
remaining after such possession of or title to Landlord I a leasehold
interef3t in the Leased Premises is obtained or acquired, or after the
Ground Lease is terminated, cancelled or surrendered, as the case may be,
in accordance with the terms and provisions of the Lease, but subject
nevertheless to the provisions of this Agreement which shall be controlling
in the event of any conflict. Immediately upon any appointment of a
receiver under the Deed of Trust or purchase of Landlord's leasehold
interest in the Leased Premises by NELPP or other person at a foreclosure
sale of the Leased Premises, or upon the termination, cancellation or
surrender of the Ground Lease, a. the case may be, NELPP (or such third
party purchaser, as the case may be) shall be substituted as the landlord
under the Lease, and shall perform with respect to Tenant all of the
Landlord's obligations and duties thereafter arising under the Lease.
2. So long as no event of default exists, nor any event has occurred,
which event of default has continued to exist for such period of time,
after notice, if any, required by the Lease, as would entitle the Landlord
under the Lease to terminate the Lease or would cause, without any further
action of the Landlord thereunder, the termination of the Lease, (a) the
Lease shall not be terminated, (b) the Tenant' use, possession and
enjoyment of the Leased Premises shall not be disturbed or interfered with,
(c) and the leasehold estate granted to Tenant in the Lease shall not be
affected in any manner whatsoever by the termination of the Ground Lease or
Deed of Trust or by any foreclosure sale or by NELPP or the Trustees taking
any action pursuant to their rights set forth in the Ground Lease or Deed
of Trust or by any purchaser at a foreclosure sale.
3. Tenant hereby agrees that NELPP or any purchaser at foreclosure
sale shall not be (a) liable for any act or omission of Landlord under the
Lease, (b) subject to any offsets or defenses which Tenant may have at any
time hereafter against Landlord, (c) bound by any rent which Tenant may
have paid to Landlord for more than the current month, or (d) bound by any
amendment or modification of the Lease subsequent hereto made without the
prior written consent of NELPP; provided that NELPP or any purchaser at
foreclosure sale, as the case may be, shall perform all obligations of
Landlord under the Lease beginning as of the date the Ground Lease is
terminated, cancelled or surrendered, or NELPP or such purchaser at
foreclosure, as the case may be, acquires or obtains possession of the
Leased Premises.
4. Tenant hereby agrees that if NELPP or a purchaser at foreclosure
sale at any time becomes the landlord under the Lease, NELPP or the
purchaser at foreclosure sale shall be liable only for the performance of
the obligations of the Landlord under the Lease which arise and accrue
after the date on which the Ground Lease is terminated, cancelled or
surrendered, or during the period of the possession and/or ownership of
Landlord Is leasehold interest in the Leased Premises by NELPP or the
purchaser at foreclosure sale, as the case may be.
5. Tenant agrees, thirty (30) days before exercising any of its rights
and remedies under the Lease (other than giving required notice to Landlord
pursuant thereto) in the event of Landlord's default thereunder, to send
written notice to NELPP, c/o Copley Properties Company, Inc., 399 Boylston
Street, Boston, Massachusetts 02117, by certified mail, return receipt
requested, of the occurrence of any default by Landlord under the terms and
provisions of said Lease, specifying with reasonable clarity the events
constituting such default, and NELPP shall have the opportunity, but not
the obligation, to cure such default.
6. Tenant hereby acknowledges and warrants to NELPP that it has not
subordinated the Lease or any of its rights under the Lease to any lien or
deed of trust prior to the date hereof, and Tenant shall not subordinate
the Lease or the rights of the Tenant thereunder to any lien or deed of
trust other than the Deed of Trust, without the prior written consent of
NELPP.
7. This Agreement, except as otherwise specifically provided herein,
shall inure to the benefit of and shall be binding upon HELPP and the
Trustees, their successors and assigns, and Tenant, its successors and
permitted sublessees and assigns.
8. This Agreement shall be construed in accordance with the laws of
the State of Maryland.
9. Any reference to "foreclosure" and 'foreclosure sale' in this
Agreement shall include the acquisition of the Landlord's estate in the
Teased Premises by voluntary deed, assignment, or other disposition or
transfer in lieu of foreclosure.
10. This Agreement may be amended by and only by an instrument
executed and delivered by each party hereto.
11. No determination by any court, governmental body or otherwise that
any provisions of this Agreement or any amendment hereof is invalid or
unenforceable in any instance shall affect the validity or enforceability
of (a) any other such provisions, or (b) such provision in any circumstance
not controlled by such determination. Each such provision shall be valid
and enforceable to the full extent allowed by, and shall be construed
wherever possible as being consistent with, applicable laws.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
WITNESS/ATTEST: NEW ENGLAND LIFE PENSION PROPERTIES;
A REAL ESTATE LIMITED PARTNERSHIP
By: Copley Properties Company,
Inc., General Partner
__________________________ BY:____________________________________
Kevin M. Mahony
Vice President LANDLORD
WITNESS/ATTEST: CROP GENETICS INTERNATIONAL
CORPORATION
__________________________ BY:_____________________________________
TENANT
__________________________ ________________________________________
R. Lawrence Koch, Jr.
TRUSTEE
_________________________ ________________________________________
Timothy Dell
TRUSTEE
COMMONWEALTH OF MASSACHUSETTS
CITY/COUNTY OF SUFFOLK, TO WIT:
I HEREBY CERTIFY that on this 17 day of September, 1992, before me, a
Notary Public in and for the aforesaid State and the City/County of Suffolk,
appeared Kevin M. Mahony, who acknowledged himself/herself to be the Vice
President of Copley Properties Company, Inc., general partner to New England
Life Pensio N a lic in and for the aforesaid State and the n Properties; A Real
Estate Limited Partnership, being authorized so do do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself/herself as Vice President.
AS WITNESS my hand and notarial seal.
__________________________________________
Notary Public
My Commission Expires: 11/15/91.
<PAGE>
STATE OF MARYLAND
CITY/COUNTY OF HOWARD, TO WIT:
I HEREBY CERTIFY that on this 28 day of September, 1992, before me, a
Notary Public in and for the aforesaid State and the City/County of Howard,
appeared Joseph W. Kelly, who acknowledged himself/herself to be the Pres & CEO
of Crop Genetics International Corporation, being authorized so to do, executed
the foregoing instrument for the purposes therein contained, by signing the name
of the corporation by himself/herself as Pres. & CEO.
AS WITNESS my hand and notarial seal.
__________________________________________
Notary Public
My Commission Expires: 11/15/91.
STATE OF MARYLAND
CITY/COUNTY OF BALTIMORE, TO WIT:
I HEREBY CERTIFY that on this 2 day of October, 1992, before me, a Notary
Public in and for the aforesaid State and the City/County of Baltimore,
personally appeared R. Lawrence Koch, Jr., Trustee for the benefit of NELPP,
known to me (or satisfactorily proven) to be the person whose name is subscribed
to the within instrument and acknowledge that he/she executed the same for
purposes therein contained as the duly authorized Trustee for NELPP.
AS WITNESS my hand and notarial seal.
__________________________________________
Notary Public
My Commission Expires: 7/1/94
STATE OF MARYLAND
CITY/COUNTY OF BALTIMORE, TO WIT:
I HEREBY CERTIFY that on this 2 day of October, 1992, before me, a Notary
Public in and for the aforesaid State and the City/County of Baltimore,
personally appeared Timothy Dell, Trustee for the benefit of NELPP, known to me
(or satisfactorily proven) to be the person whose name is subscribed to the
within instrument and acknowledge that he/she executed the same for purposes
therein contained as the duly authorized Trustee for NELPP.
AS WITNESS my hand and notarial seal.
__________________________________________
Notary Public
My Commission Expires: 7/1/94.
<PAGE>
AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE (this "Amendment') is made this 1st day of October,
1992 between M.O.R. XVIII ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership ('Landlord'), and CROP GENETICS INTERNATIONAL CORPORATION, a
Delaware corporation ("Tenant').
Explanatory Statement
A. Landlord and Tenant entered into a lease dated October 1, 1992 (the
"Lease') pursuant to which Landlord leased to Tenant a parcel of real property
known as "Parcel M-2 and the building constructed thereon containing
approximately seventy-five thousand five hundred (75,500) square feet, located
in Columbia, Maryland, all as more particularly described in the Lease.
B. Landlord and Tenant wish to modify and amend certain provisions of the
Lease, all as more specifically set forth below.
NOW, THEREFORE, in consideration of the Explanatory Statement which is
incorporated by reference herein and deemed a substantive part hereof, the
covenants of the parties and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, Landlord and Tenant hereby
agree as follows:
1. Section 23 of the Lease is hereby amended by deleting the second
sentence in its entirety and inserting in its place the following:
Landlord's liability under this Lease shall be limited to the extent of
Landlord's interest in the Leased Premises, so that no partner, director,
officer or shareholder of Landlord, as it may now or hereafter be
constituted, or of any successor or assign of Landlord, shall have any
personal liability to Tenant and/or any person or entity claiming under, by
or through Tenant upon any action, claim, suit or demand brought under or
pursuant to the terms and conditions of this Lease and/or arising out of
the use or occupancy by Tenant of the Leased Premises.
2. In the event that any other party (a "Successor") succeeds to the
interest of Landlord under this Lease so that M.O.R. XVIII Associates Limited
Partnership is no longer Landlord, including any succession arising out of a
termination of the Ground Lease on Parcel M-2, a foreclosure of the Deed of
Trust on Parcel M-2, or any other transfer, sale or assignment of Parcel M-2,
then Section 23 of the Lease shall automatically be deemed further amended by
revising the phrase "Landlord's liability under this Lease shall be limited to
the extent of Landlord's interest in the Leased Premises..." to the following:
"Landlord's liability under this Lease shall be limited to the extent of
Landlord's interest in Parcel M-2 .... "
3. Rider No. 2 of the Lease, among other things, grants to Tenant certain
expansion rights with respect to that parcel cf land contiguous to Parcel M-2
known as "Parcel M-3" (the "Expansion Parcel'), and Rider No. 4 of the Lease
grants to Tenant a right of first refusal with respect to the Expansion Parcel.
Landlord and Tenant hereby agree that if any Successor becomes Landlord under
the Lease so that M.O.R. XVIII Associates Limited Partnership is no longer
Landlord, then all of Landlord's obligations under the Lease with respect to the
Expansion Parcel shall be deemed severed from the Lease, so that any such
Successor shall have no obligations whatsoever with respect to the Expansion
Parcel. In such event, however, M.O.R. XVIII Associates Limited Partnership
shall continue to be bound to Tenant with respect to the Expansion Parcel upon
the terms and conditions set forth in the Lease, as amended hereby, but such
obligation is personal to M.O.R. XVIII Associates Limited partnership and will
not run with the Expansion Parcel or bind any successor or assign of M.O.R.
XVIII Associates Limited Partnership.
4. Rider No. 2 of the Lease is hereby amended by adding the following new
paragraph:
Notwithstanding any language in the Lease to the contrary, if (a) Landlord
offers the Expansion Parcel to Tenant pursuant to Rider No. 4 of the Lease
(Tenant's Right of First Refusal) ; (b) the Right of First Refusal is not
accepted or is otherwise rejected by Tenant; and, (c) Landlord sells the
Expansion Parcel to a third party pursuant to Rider No. 4, then Tenant's
Expansion Option with respect to the Expansion Parcel shall be deemed
automatically terminated and of no further force and effect.
5. Rider No. 6 of the Lease, Tenant's Right of Cancellation, is hereby
amended by adding the following:
Notwithstanding any language in the Lease to the contrary, in the event
that Tenant exercises its Expansion option pursuant to Rider No. 2 of the
Lease, then Tenant's Cancellation Option described herein shall be deemed
automatically null and void and of no further force and effect.
6. From and after the date hereof, the Lease shall be amended and in full
force and effect in such respects as are set forth herein, and all other
provisions, terms, conditions and riders of and to the Lease shall remain as set
forth in the Lease, in full force and effect.
7. Unless the context requires a contrary meaning, all capitalized terms
not defined herein shall have the meanings ascribed to them in the Lease.
<PAGE>
ASSIGNMENT OF SUBLEASE
THIS ASSIGNMENT OF SUBLEASE ("Assignment") is dated as of May 1, 1996, by
CROP GENETICS INTERNATIONAL CORPORATION, a Delaware Corporation ("Borrower"),
and biosys, Inc., a Delaware corporation ("biosys"; together with the Borrower,
collectively, the "Obligors"), to and for the benefit of THE FIRST NATIONAL BANK
OF MARYLAND, a national banking association ("Bank"), which is the Lender under
the below-referenced Financing Agreement, as amended, and is the assignee of
Maryland Industrial Development Financing Authority, a body politic and
corporate and a public instrumentality of the State of Maryland ("MIDFA").
RECITALS
Pursuant to and in accordance with the Maryland Economic Development
Revenue Bond Act, as amended, and the Maryland Industrial Development Financing
Authority Act, as amended ("MIDFA Act"), and upon the terms set forth in the
Loan and Financing Agreement dated December 7, 1994 by and among MIDFA, the
Borrower and the Bank ("Financing Agreement"), MIDFA issued and sold to the Bank
MIDFA's Taxable Economic Development Revenue Bond (Crop Genetics International
Corporation Facility), 1994 Issue, in the principal amount of Three Million Four
Hundred Thousand Dollars ($3,400,000.00) ("Bond"). MIDFA loaned the proceeds of
the Bond to the Borrower in order to finance a portion of the costs of the
borrower's acquisition of a certain industrial facility. To evidence its
obligation of repayment, the Borrower executed and delivered to the order of
MIDFA the Promissory Note dated December 7, 1994 in the principal amount of
Three Million Four Hundred Thousand Dollars ($3,400,000.00) ("Note"). In
accordance with the Financing Agreement, MIDFA assigned its interest in the Note
and all security for the Note to the Bank as security for the Bond.
Pursuant to and in accordance with the MIDFA Act, MIDFA provided financial
assistance (within the meaning of the MIDFA Act) by insuring, through its Bond
Insurance Fund, repayment of a portion of the principal of and interest in the
Bond in accordance with the Insurance Agreement dated December 7, 1994 by and
among MIDFA, the Borrower and the Bank. All of the documents described above,
together with all other documents executed in connection with the financing
transaction described above, are collectively referred to as the "Original Bond
Documents.'
The Original Bond Documents have been modified by: (a) the Modification and
Forbearance Agreement dated May 26, 1995 by and among the Borrower, biosys, the
Bank and MIDFA (the 'First Modification Agreement") pursuant to which, among
other things, biosys guaranteed the payment and performance of the Borrower's
obligations under the Original Bond Documents, as the same may be amended from
time to time, in accordance with a Guaranty Agreement made of even date with the
First Modification Agreement; and (b) the Second Modification and Forbearance
Agreement dated as of October 2, 1995 (the "Second Modification Agreement") by
and among the parties to the First Modification Agreement, and various letter
agreements.
The parties hereto have entered into a Third Modification Agreement of even
date herewith (the "Third Modification Agreement") which requires, among other
things, that the Obligors give this Assignment to and for the benefit of the
Bank. The Obligors are willing to give this Assignment for the purposes stated
herein and in the Third Modification Agreement.
As used herein, the term "Bond Documents" means the Original Bond
Documents, as the same have been modified as described in the preceding
paragraphs, together with any and all other documents now existing or hereafter
made to evidence, secure or otherwise set forth the terms of the Obligors'
obligations in connection with the above-described financing.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged the Obligors agree as follows, for the benefit of the Bank and
MIDFA:
Section 1. Certain Definitions: Rules of Construction. (a) As used in this
Assignment:
(i) the term "Obligations" means (A) all amounts now or hereafter
outstanding under the Note, the Financing Agreement and the other Bond
Documents, and (B) the Obligors' duties to perform and comply with all
of the other agreements of the Obligors under the Bond Documents; and
(ii) except where the context clearly requires otherwise, terms
defined in the Recitals above shall have the respective meanings
indicated, and capitalized terms not otherwise defined herein shall
have the respective meanings given in the Third Modification Agreement
(including definitions incorporated into the Third Modification
Agreement by reference to another ]Bond Document).
(b) The singular shall include the plural and the plural may refer to
only the singular; the use of any gender shall be applicable to all
genders; the headings and captions contained herein are for purposes of
convenience only and are not a part of this Assignment. Except where the
context clearly requires otherwise, when used in this Assignment, the words
"herein", 'hereof", and "hereunder' and words of similar import shall refer
to this Agreement as a whole and not only to any particular provision of
this Agreement; the words "Include," "Includes' and "including," as used
herein, shall be deemed to be followed by the words 'without limitation';
and an "agreement" (or another word of similar import) of a person or
entity shall include any applicable promise, representation, warranty or
other undertaking of such person or entity.
Section 2. Assignment Of Interest In Sublease. As security for the
Obligations, the Obligors hereby grant, transfer and assign to the Bank: (a) all
of the Obligors' right, title and interest in and to the Sublease Agreement
dated May 2, 1996 (together with all amendments and supplements thereto and any
replacements, restatements or substitutions thereof, and all including any other
lease by the Obligors or either of them of their interest in the below-defined
Premises or any portion thereof, collectively, the "Sublease") by and among Gene
Logic, Inc., a [Delaware] corporation, as subtenant ("Subtenant"), the Obligors,
as sublandlord, with respect to the real property located at 10150 Old Columbia
Road, Howard County, Maryland ('Premises"), including all of the rights of the
Obligors (or either of them) to receive payments of rent and other amounts which
may become owing to any Obligor thereunder; together with (b) any and all
deposits of Subtenant to secure payment of the same and performance of the terms
and conditions of the Subtenant's obligations under the Sublease; and also
together with (c) the right to collect the aforesaid amounts and to utilize any
collection or enforcement rights or remedies which may be available to, any
Obligor under law or the Sublease, but without any duty or obligation to perform
on behalf of any Obligor any agreement of the Obligors under the Sublease.
Without limiting the foregoing, the rights assigned hereunder shall include (1)
any and all rights of the Obligors (or either of them) to receive fees, charges,
reimbursements, insurance proceeds, option payments, payments made in
consequence of any defaults by Subtenant or in settlement, compromise or
satisfaction of any obligations of Subtenant due the Obligors as a result or in
consequence of the Sublease, (2) all claims and rights to the payment of money
at any time arising in connection with the Sublease or breaches of the Sublease,
or any rejection of the Sublease by Subtenant or a trustee of Subtenant's
bankruptcy estate under Section 365 of the United States Bankruptcy Code, as
amended, all rights to recover damages arising out of any of such breaches or
rejections, and (3) all rights to take or receive charges payable by Subtenant
or trustee of Subtenant with respect to the premises covered by the Sublease
following the entry of an order for relief under the United States Bankruptcy
Code in respect of such Subtenant and all rent and other charges outstanding
under the Sublease as of the date of the entry of the order for relief.
Section 3. Collection of Rent By Obligors. (a) So long as there shall exist
no Event of Default, the Obligors shall have a license to receive, collect and
retain payments of rent and other amounts under the Sublease and otherwise to
exercise the rights and receive the benefits of the Sublandlord under the
Sublease, subject to the provisions of this Assignment.
(b) Upon, or at any time after, any Event of Default (unless such
Event of Default is waived in writing by the Bank), the Bank, without in
any way waiving such default, may at its option, terminate such license and
thereafter the Bank shall be entitled immediately and exclusively to
collect all rent and other amounts payable under the Sublease; provided,
however, that (i) a portion of each Monthly Payment received in respect of
Base Rent shall be applied first to the Obligors' obligations to pay
Commissions (hereafter defined) then due, and (ii) amounts received by the
Bank in respect of estimated Actual Operating Costs (under and as defined
in the Sublease) shall at the Bank's option, (A) be applied against the
outstanding Obligations- in the same manner as amounts received in respect
of ]3ase Rent under the Sublease, (B) be held as a reserve for and applied
to such Actual Operating Costs as the same are incurred, or (C) some
combination of the foregoing in such order or proportion as the Bank
determines, in its sole discretion. As used in this part (b), "Commissions"
means the leasing commission payable by the Obligors to Casey & Associates,
Inc. (together with its successors and assigns, "Broker") in respect of the
Sublease, in accordance with the provisions of the Agreement between biosys
and the Broker dated February 28, 1996. Nothing contained herein shall be
construed as any assumption by the Bank of the Obligors' obligation to pay
any Commission from their separate funds; rather, such amounts shall be
payable solely from Base Rent actually received by the Bank. The Obligors
hereby agree to indemnify the Bank and MIDFA from and ag2anst any and all
liability, loss, or damages which it may or might incur to Broker or any
person claiming by, through or under Broker, and from any and all claims
and demands whatsoever which may be asserted against it by reason of any
alleged obligations or undertakings on the part of the Bank or MIDFA to
perform or discharge any of the obligations of the Obligors to Broker other
than the payment of Commissions then due from amounts actually received by
Bank on account of Base Rent.
(c) The Bank shall not collect or attempt to collect rent or other
payments under the Sublease unless an Event of Default shall have occurred.
(d) The rights and remedies provided hereunder shall be nonexclusive
and shall be in addition to all other remedies and rights available under
the Bond Documents.
Section 4. Termination Of Assignment. All rights of the Bank in and to the
Sublease and the Obligors' rights thereunder, including the right to receive and
collect the moneys payable thereunder, shall end immediately upon full
satisfaction by the Obligors of all of the Obligations.
Section 5. Bank Has All Rights Of Obligors. The Bank shall have all rights
and privileges of the Obligors, either as provided in the Sublease or as
provided by law with respect thereto. The Bank shall have no obligation to
enforce the Bank's rights and remedies with respect to the Sublease in the name
of or on behalf of the Obligors, but may do so directly in the Bank's own name.
Anything contained herein to the contrary notwithstanding, the Bank shall have
no obligation or duty to enforce payment or collection of amounts payable under
the Sublease and shall be accountable only for such amounts as may actually be
received by the Bank.
Section 6. No Modification Of Leases. The Obligors shall have no right to
cancel, materially amend, or materially modify the provisions of the Sublease,
grant any concessions, or agree to an assignment by Subtenant (whether or not
such assignment is in compliance with the terms of the Sublease), without the
Bank's prior written consent (which consent shall not be unreasonably withheld).
For purposes of the preceding sentence, amendments to or modifications of the
term of the Sublease, the amount of rent to be paid thereunder, or the premises
described therein shall be material amendments or modifications. The Obligors
will make all steps which may be required to preserve and maintain Subtenant's
liability under the Sublease and the enforceability thereof and shall promptly
advise the Bank of any defense or claim or alleged defense or claim of
nonliability, whether in whole or in part, by Subtenant coming to the Obligors'
attention. The Obligors shall not collect any rent from Subtenant more than
thirty (30) days in advance of its due date, other than the security deposit
provided for in the Sublease, unless such advance payments are held in a manner
disclosed to and approved by the Bank. The Obligors shall not cancel, terminate,
release, discharge, compromise, or modify in whole or in part Subtenant's duty
or obligation to pay rent without the pnor written consent of the Bank (which
consent shall not be unreasonably withheld).
Section 7. Reliance. The Obligors irrevocably authorize Subtenant to rely
upon and comply with any notice or demand by the Bank for payment to the Bank of
rent or for performance of any obligation and the Obligors release and discharge
Subtenant from any and all liability to the Obligors for so complying. Subtenant
shall have no right or duty to inquire as to whether any Event of Default has
occurred or is existing.
Section 8. Representations And Warranties. The Obligors represent and
warrant as follows:
Section 8. 1. Binding, Obligations. Each Obligor has full power and
authority to execute this Assignment, and upon its execution this
Assignment shall be the binding obligation of the Obligors.
Section 8.2. Sublease. The Sublease is the valid and binding
obligation of the Obligors and the Subtenant, and has been effectively
consented to by the Landlord under the Prime Lease (as defined in the
Sublease). The Sublease is fully enforceable in accordance with its terms,
and neither the Subtenant nor the Obligors are in default under any of the
terms thereof.
Section 9. Notification. The Obligors shall notify the Bank promptly In
writing of any default by the Obligors in the performance of or compliance with
any of their agreements under the Sublease or any notice of default or notice of
termination received by any Obligor. The Obligors shall deliver to the Bank,
promptly after any Obligor's receipt thereof, a copy of each such notice
received by the Obligor.
Section 10. Notice Of Arbitration Or Litigation. The Obligors shall notify
the Bank and MIDFA promptly in writing in the event of initiation of any
arbitration or litigation proceeding under or pursuant to the Sublease and, upon
the request of the Bank, shall exercise all rights of arbitration or litigation
provided by the Sublease. The Bank shall have the right to participate in all
such arbitration or litigation proceedings in association with the Obligors or
on its own behalf as an interested party; provided, that unless an Event of
Default shall have occurred, all expenses of the Bank incurred in connection
therewith shall be paid by the Bank.
Section 11. Assignment Of Interest. The Obligors shall not, without the
prior written consent of the Bank and MIDFA, further assign, transfer or
encumber their interest in the Sublease or permit the assignment, transfer or
encumbrance of its interest in the Sublease.
Section 12. Further Assurances. The Borrower shall execute and deliver on
request of the Bank or MIDFA from time to time such confirmatory assignments or
other instruments as the Bank or MIDFA may reasonably deem useful or necessary
to carry out the purposes of this Agreement.
Section 13. Performance Of Obligations. The Bank shall not be obligated to
perform or discharge, nor does the Bank hereby undertake to perform or
discharge, any obligation, duty or liability under the Sublease or the Prime
Lease, under or by reason of this Assignment, and the Obligors shall and do
hereby agree to indemnify the Bank and MIDFA for, and to hold the Bank and MIDFA
harmless of, and from, any and all liability, loss or damage which it may or
might incur under the Sublease or the Prime or under or by reason of this
Assignment, and from any and all claims and demands whatsoever which may be
asserted against it by reason of any alleged obligations or undertakings on the
part of the Bank or MIDFA to perform or discharge any of the terms, covenants or
agreements contained in the Sublease or the Prime . Should the Bank or MIDFA
incur any such liability, loss or damage under the Sublease or the Prime Lease
or under or by reason of this Assignment or in defense of any such claims or
demands, the amount thereof, including costs, expenses and reasonable attorneys'
fees, shall be secured hereby and the Obligors shall reimburse the Bank or MIDFA
therefore immediately upon demand, and upon the failure of Obligors so to do the
Bank may declare a11 of the Obligations due and payable.
Section 14. No Waiver. Nothing herein contained and no act done or omitted
by the Bank pursuant to the powers and rights granted it herein shall be deemed
to be a waiver by the Bank of its rights and remedies under the Bond Documents,
but this Assignment is made and accepted without prejudice to any of the rights
and remedies possessed by the Bank under the terms thereof. The right of the
Bank to collect the indebtedness and to realize on any other security securing
the Obligations may be exercised by the Bank either prior to, simultaneously
with, or subsequent to any action taken by it hereunder.
Section 15. Assignment of Bond Documents. In the event any or all of the
Bond Documents are assigned and transferred by the Bank, the Borrower covenants
and agrees that all of the provisions herein contained shall be applied to and
inure to the benefit of the transferee in the same manner and to the same extent
as if it was the original assignee of the Sublease herein named.
Section 16. Binding Nature. This Assignment shall inure to the benefit of
the Bank and the Bank's successors and assigns and shall be binding upon the
Borrower and the Borrower's successors and assigns. This Assignment may not be
amended or modified except by a writing executed by both the Bank and the
Borrower.
Section 17. Final Agreement. This Assignment contains the final and entire
agreement of the parties relating to the assignment of the Borrower's interest
in the Sublease.
Section 18. Choice Of Law. The laws of the State of Maryland (excluding,
however, conflict of law principles) shall govern and be applied to determine
all issues relating to this Assignment and the rights and obligations of the
parties hereto, including the validity, construction, interpretation, and
enforceability of this Assignment and its various provisions and the
consequences and legal effect of all transactions and events which resulted in
the execution of this Assignment or which occurred or were to occur as a direct
or indirect result of this Assignment having been executed.
[Signatures and Acknowledgments Follow.]
<PAGE>
IN WITNESS WHEREOF, the Borrower has duly executed this Assignmerit under
seal as of the date first above written.
WITNESS/ATTEST: CROP GENETICS INTERNATIONAL
CORPORATION
A Delaware Corporation
________________________ BY:_________________________________(SEAL)
Name: Edwin C. Quattlebaum
Title: President/CEO
BIOSYS, INC.
A Delaware Corporation
_______________________ BY:_________________________________(SEAL)
Name: Edwin C. Quattlebaum
Title: President/CEO
<PAGE>
ACKNOWLEDGEMENTS
STATE OF MARYLAND, CITY/COUNTY OF ANNE ARUNDEL, TO WIT:
I HEREBY CERTIFY that on this 7th day of May, 1996, before me, the
undersigned Notary Public of the State of Maryland, personally appeared Edwin C.
Quattlebaum, and acknowledged that he is the President & CEO of CROP GENETICS
INTERNATIONAL CORPORATION, a Delaware Corporation, and that he, as such
President and CEO, being authorized to do so, executed the foregoing instrument
for the purposes therein contained by signing the name of the Delaware
corporation by himself as Edwin C. Quattlebaum.
IN WITNESS MY Hand and Notarial Seal.
__________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
6/24/98
STATE OF MARYLAND, CITY/COUNTY OF ANNE ARUNDEL, TO WIT:
I HEREBY CERTIFY that on this 7th day of May, 1996, before me, the
undersigned Notary Public of the State of Maryland, personally appeared Edwin C.
Quattlebaum, and acknowledged that he is the President & CEO of BIOSYS, INC., a
Delaware Corporation, and that he, as such President and CEO, being authorized
to do so, executed the foregoing instrument for the purposes therein contained
by signing the name of the Delaware corporation by himself as Edwin C.
Quattlebaum.
IN WITNESS MY Hand and Notarial Seal.
__________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
6/24/98
<PAGE>
Exhibit of Key Plan Floor Plan
Graphic Image
See Apendix
<PAGE>
Expansion of Floor Plan
Graphic Image
See Appendix
<PAGE>
EXHIBIT F
Gene Logic - biosys Sub-Lease Agreement
Permitted Uses of Sub-Leased Premises
The Sub-Tenant shall not use or permit the use of any portion of the
Sub-Leased Premises for any purpose other than the following:
The office space shall be used for general office and corporate purposes
and the laboratory space shall be used to conduct biomedical research and for
the provision of genomic information and services to clients in the health care
industry. Specifically,, the Sub-Tenant may use the Sub-Leased Premises for the
following:
1. the culture of mammalian cells and other prokaryotic and eukaryotic
organisms; 1
2. extraction and manipulation of nucleic acids from such cells;
3. general molecular biology activities, which includes the use of
low-level radioisotopes (under proper local, stat6 and federal
licensing), and small amounts of organic chemical waste that will be
disposed of properly;
4. capture of information in computer databases; and,
5. to-and-fro transmission of data over Ll or ISDN lines.
Sub-Tenant may use the laboratory space for other laboratory or research
purposes, provided, that Sub-Tenant obtain Sub-Landlord's written consent before
undertaking any such activity. The Sub-Landlord's consent shall not be
unreasonably withheld.
<PAGE>
Exhibit G.
biosys personal property inventory contained in subleased space
QTY ITEMS
2 Cherry wood dry erase cabinets
1 4'x5' wood frame dry erase board
1 4'x7' metal frame dry erase board
4 8'x10' modular cubicles
4 Overhead bins for modular cubicles
42' Desk tops for modular cubicles
1 Labconco "Protector" 5' Laboratory Hood
1 Labconco "Protector" 4' Laboratory Hood
1 Corning "Mega Pure" Distilled water system
All casework and fixtures
All fire extinguishers
<PAGE>
Exhibit H
Graphic Image
See Appendix
<PAGE>
EXHIBIT I
Gene Logic - biosys Sub-Lease Agreement
Improvements To Be Made by Gene Logic, Inc.
The following Improvements to the Sub-Leased Space will be made by Gene
Inc., at its sole cost:
Room B - Analytical Lab: Remove eleven feet of casework and eleven feet of
wall cabinetry. Remove eleven feet of electrical strip along same wall. Add air,
vacuum, and gas connections from main building systems for two locations on
north wall. Repair floor where casework was removed if necessary. Provide and
install eleven feet of vinyl base molding where casework was removed. Add four
feet of kneespace along cabinetry on south wall. Provide and install four foot
standard laboratory sink with HW/CW/Dl faucets on south wall in corner.
Room C - New Lab Area: Install one eleven foot casework section that was
removed from Room B above as half of one island section. Install second half of
this eleven foot sect' ion and sink including HW/CW/DI faucet. Install second
eleven foot island casework section. Install air, gas, vacuum along islands
drawing from main building systems. Vent at least one cabinet area outside using
existing vent tube along north wall.
New Cafeteria: Provide and install new three foot door with glass window in
door. Provide and install new three foot by five foot window in wall facing
atrium. Install new kitchen cabinet with sink including HW/CW.
Open Office Area: Demolish three walls and one door totaling 28.5 linear
feet. Repair ceiling grid and tile if necessary.
<PAGE>
Graphical Image Appendix
Page 25 Sublease Agreement Exhibit A
Description - Site Plan for 10150 Old Columbia Road, Columbia, MD
Page 48 Lease Agreement Exhibit A
Description - Site Plan for 10150 Old Columbia Road, Columbia, MD
Pages 51 - 68 Lease Agreement Exhibit D
Description - United States Environmental Protection Agency
1991 Hazardous Waste Reports Forms 1C and GM-Identification
and Certification - 16 Pages
Page 80 Sublease Agreement Exhibit D
Description - Architectural Drawing of 10150 Old Columbia Rd.,
Columbia, MD - Outline of Leased Premises
Page 81 Sublease Agreement Exhibit E
Description - Architectural Drawing of 10150 Old Columbia Rd.,
Columbia, MD - Outline of future leasable area for expansion
Page 84 Sublease Agreement Exhibit H
Description - Architectural Drawing of 10150 Old Columbia Rd.,
Columbia, MD - Improvements and walls to be constructed as a result
of sublease agreement
TEXT>
THIS DOCUMENT IS A COPY OF THE EXHIBIT 10.68 FOR THE 10Q FILED ON MAY 15,
1996, PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
THIRD MODIFICATION AGREEMENT
THIS THIRD MODIFICATION AGREEMENT ("AGREEMENT") is made as of the 1st day
of May, 1996, by and among CROP GENETICS INTERNATIONAL CORPORATION ("BORROWER"),
biosys, Inc. ("BIOSYS"), THE MARYLAND INDUSTRIAL DEVELOPMENT FINANCING AUTHORITY
("MIDFA"), and THE FIRST NATIONAL BANK OF MARYLAND ("BANK"). The BORROWER and
BIOSYS are hereafter collectively referred to as the "OBLIGORS" .
R E C I T A L S
Reference is made to the Modification Agreement dated May 26, 1995 ("FIRST
MODIFICATION AGREEMENT") and the Second Modification Agreement dated as of
October 2, 1995 ("SECOND MODIFICATION AGREEMENT"), each made by and among the
OBLIGORS, MIDFA and the BANK, the various letter agreements relating thereto
(collectively, the "LETTER AGREEMENTS"). and all of the other "BOND DOCUMENTS,"
as that term is defined in the SECOND MODIFICATION AGREEMENT.
All of the documents described above, together with all other documents
heretofore executed in connection with the financing evidenced by the BOND
DOCUMENTS, are hereafter collectively referred to as the "EXISTING BOND
DOCUMENTS." The EXISTING BOND DOCUMENTS, this AGREEMENT, all documents to be
executed pursuant to this AGREEMENT, and II other documents relating thereto
and/or executed in connection therewith, are hereafter collectively referred to
as the "BOND DOCUMENTS." The OBLIGORS" total indebtedness to the BANK under the
BOND DOCUMENTS including, without limitation, all principal, accrued and unpaid
interest, late charges, costs, expenses and attorneys' fees now or hereafter
owed thereunder, is hereafter referred to as the "INDEBTEDNESS". All assets
which now or hereafter serve as security for the,: INDEBTEDNESS that is owed to
the BANK under the BOND DOCUMENTS are hereafter collectively referred to as the
"COLLATERAL."
Pursuant to the EXISTING BOND DOCUMENTS, upon the entry by the OBLIGORS of
any sublease of the premises at 10150 Old Columbia Road, Columbia, Maryland, the
OBLIGORS shall specifically assign to MIDFA and the BANK, as security for the
INDEBTEDNESS, all of the OBLIGORS' right, title and interest in and to such
sublease, including all rent payable thereunder. The OBLIGORS have proposed to
enter into such a sublease (the "SUBLEASE") with Gene Logic, Inc. ("SUBTENANT"),
substantially in the form attached hereto as Exhibit 1, and have agreed to enter
into an Assignment of Sublease substantially in the form attached hereto as
Exhibit 2 (the "SUBLEASE, ASSIGNMENT").
The SECOND MODIFICATION, as amended, requires that the OBLIGORS enter into
a supplement to such SECOND MODIFICATION establishing financial covenants of
BIOSYS, for the benefit of the BANK, in form and substance satisfactory to the
BANK. BIOSYS has requested that the, BANK agree to modify the requirement that
BIOSYS establish financial covenants. In connection with such request, BIOSYS is
willing to covenant that, upon the entry into any agreement between BIOSYS and
Imperial Bank or any other person whereby BIOSYS agrees to comply with any
financial test or covenant, BIOSYS shall become bound, for the benefit of the
BANK, to comply with substantially the same financial tests or covenants and
shall execute such documentation as the BANK may reasonably require to establish
such obligation.
Pursuant to an agreement dated September 15, 1995 (the "ZENECA AGREEMENT")
between BIOSYS and Zeneca, Ltd. ("ZENECA"), the OBLIGORS have proposed to grant
to ZENECA, under certain circumstances, a conditional right of first refusal
with respect to certain equipment owned by the BORROWER and/or BIOSYS, which is
described on Exhibit 3 hereto, and have requested that the BANK and MIDFA
consent to such right of first refuse and, upon the exercise thereof, permit the
conveyance of such equipment provided that ZENECA pays the BANK the applicable
purchase price. To induce the BANK and MIDFA to give their consent to the
foregoing, the OBLIGORS have offered to grant to MIDFA and the BANK a security
interest in such equipment in accordance with a Supplemental Security Agreement
in the form attached hereto as Exhibit 4 ("SUPPLEMENTAL SECURITY AGREEMENT").
The BANK and MIDFA have now had an opportunity to review the Borrowers'
various requests, and in connection therewith, are willing to agree as follows.
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Recitals. The Recitals set forth above, are true and accurate in
every respect and are hereby incorporated into this AGREEMENT by reference.
2. Definitions: Miscellaneous. The term "EVENT OF DEFAULT" has the
meaning given in Section 10 hereof. Terms defined in the Recitals above or
elsewhere in this AGREEMENT shall have the respective meanings indicated.
Terms set forth herein in all capital letters but not otherwise defined
herein shall have the respective meanings given to those terms in the
SECOND MODIFICATION AGREEMENT (including definitions incorporated therein
by reference to another EXISTING BOND DOCUMENTS).
3. Acknowledgements of outstanding Balance: Transaction Costs:
modification Fee.
(a) The OBLIGORS hereby acknowledge and agree that through May 2,
1996, the outstanding principal and interest balance owing to the BANK
under the BOND DOCUMENTS was as follows:
Principal: .................................. $ 2,550,006.46
Interest through 5/2196: .................... 1,239.58
TOTAL Principal and Interest
Balance Owing to the
BANK under the BOND DOCUMENTS
through 5/2/96: ............................. $ 2,551,246.04
In addition, the OBLIGORS are obligated to pay to the BANK all actual
costs, expenses and attorneys' fees which the BANK has incurred or may
incur in the future under or in connection with the BOND DOCUMENTS,
including, but not limited to all costs, expenses and attorneys' fees which
the BANK has incurred and may incur in the future in preparing, negotiating
and consummating this AGREEMENT, and in preparing, negotiating,
consummating and/or recording any and all other documents called for in
and/or contemplated by this AGREEMENT. All such costs, expenses and
attorneys' fees incurred by the BANK under or in connection with the BOND
DOCUMENTS on or before May 2, 1996 shall be paid by the OBLIGORS to the
BANK simultaneously with the execution of this AGREEMENT by the parties
hereto. All such costs, expenses and attorneys' fees incurred by the BANK
under or in connection with the BOND DOCUMENTS after May 2, 1996 shall be
paid by the OBLIGORS to the BANK in accordance with the terms and
conditions of Section 21 of the FIRST MODIFICATION AGREEMENT.
(b) Upon the execution and delivery of this Agreement, the Borrower
shall pay a non-refundable modification fee of Five Thousand Dollars
($5,000.00). No portion of such modification fee :shall be applied as a
payment of principal, interest or expenses.
4. Confirmation of Obligation. The OBLIGORS acknowledge, ratify and
confirm their respective obligations under the EXISTING BOND DOCUMENTS, and
further acknowledge, ratify and confirm that the OBLIGORS are and shall
remain absolutely and unconditionally obligated to pay the BANK all
INDEBTEDNESS that is owed to the BANK under the BOND DOCUMENTS. The
OBLIGORS acknowledge and agree that there exists no offset against or
defense to the duties of the OBLIGORS to timely pay the INDEBTEDNESS in
accordance with the terms of the EXISTING BOND DOCUMENTS, as modified by
this AGREEMENT, and further agree to perform and comply with the OBLIGORS'
other agreements under the EXISTING BOND DOCUMENTS, as modified by this
AGREEMENT the event that any such offset or defense exists as of the later
of the date hereof or the date on which all conditions precedent set forth
in Section 8 hereof are satisfied, the OBLIGORS hereby irrevocably and
fully waive and release the same.
5. Sublease: Assignment of Sublease. Simultaneously with the execution
of this AGREEMENT by the parties hereto, the OBLIGORS shall execute and
deliver the SUBLEASE ASSIGNMENT to and for the benefit of the BANK and
MIDFA, in the form attached hereto as Exhibit 2.
6. Financial Covenants of Biosys. Until the full and final payment and
satisfaction of the INDEBTEDNESS, in the event that BIOSYS enters into any
agreement (or modification of any agreement) with Imperial Bank or any
other person whereby BIOSYS agrees to comply with one or more financial
covenants or tests with respect to the current loan facility from Imperial
Bank or any replacement thereof, then BIOSYS shall, in each instance,
promptly upon the effectiveness of such agreement, fully disclose to the
BANK and MIDFA the terms of the applicable financial covenants or test and
BIOSYS shall automatically become bound to comply with substantially the
same financial covenants or tests for the benefit of the BANK. If required
by the BANK at any time or from time to time, BIOSYS shall execute such
reasonable documentation as the BANK may. deem necessary or appropriate to
confirm BIOSYS' agreement to comply with such financial covenants or tests.
Further, BIOSYS shall provide the BANK with certificates of the chief
financial officer of BIOSYS, not less frequently than quarterly, setting
forth whether BIOSYS is in compliance with all applicable financial
covenants or tests and calculating the same. Without limiting any other
provision of the BOND DOCUMENTS whereby BIOSYS is bound to provide
financial statements or information to the BANK, BIOSYS shall also provide
the BANK with all other financial statements and information as the BANK
may reasonably require to monitor BIOSYS compliance with the applicable
financial covenants.
7. Supplemental Security Agreement: Consent to Conditional Right of
First Refusal. (a) Simultaneously with the execution of this AGREEMENT by
the parties hereto, the OBLIGORS shall execute and deliver the SUPPLEMENTAL
SECURITY AGREEMENT to and for the benefit of the BANK and MIDFA, in the
form attached hereto as Exhibit 4, and shall also execute and cause to be
recorded financing statements sufficient to perfect the lien and security
interest of the BANK and MIDFA in the collateral described in such
SUPPLEMENTAL SECURITY AGREEMENT (such collateral is referred to herein as
the "ADDITIONAL COLLATERAL").
(b) In accordance with the ZENECA AGREEMENT, the OBLIGORS may
grant to ZENECA a conditional right of first refusal (the "RIGHT OF
FIRST REFUSAL") in the ADDITIONAL COLLATERAL or so much thereof as may
remain, exercisable by ZENECA (i) in the event BIOSYS institutes any
voluntary Insolvency Proceedings( (hereafter defined), or (ii) in the
event involuntary Insolvency Proceedings are instituted against BIOSYS
and such involuntary Insolvency Proceedings are not unconditionally
dismissed within 60 days thereafter; provided, that the exercise of
such right of first refusal shall be subject to the consent of the
BANK, which shall be given only upon the satisfaction of the following
conditions:
(i) the consideration to be paid by ZENECA for the purchase
of the ADDITIONAL COLLATERAL shall be in an amount equal to the
fair market value of the ADDITIONAL COLLATERAL, as of the time of
the exercise of the right of first refusal, as determined by an
appraisal thereof performed at the expense of the OBLIGORS by an
independent appraiser satisfactory to the BANK (in its sole
discretion), and shall be paid in immediately available funds by
wire transfer to the BANK, for the account of the OBLIGORS, to be
applied as a reduction against the INDEBTEDNESS (without limiting
the foregoing, no portion of such consideration may be paid by
application of any set-off or other claim which ZENECA may have
against BIOSYS);
(ii) the financing statements describing the ADDITIONAL
COLLATERAL shall have been filed among the public records where
such filing is necessary or appropriate to perfect the BANK'S
security interest in the ADDITIONAL COLLATERAL, and the BANK
shall have received record search reports or other evidence,
satisfactory to the BANK, that the BANK'S security interest in
the ADDITIONAL COLLATERAL constitutes a perfected, first priority
security interest;
(iii) in the event there exists any interest in the
ADDITIONAL COLLATERAL at the time of the exercise of the RIGHT OF
FIRST REFUSAL (whether consensual or non-consensual) held by a
person or entity other than the BANK or MIDFA, the holder(s) of
such subordinate interest(s) shall have waived any and all rights
such holder(s) may have in the ADDITIONAL COLLATERAL and the
proceeds thereof, or such rights shall have been extinguished
pursuant to an order of the applicable Bankruptcy Court or other
court having jurisdiction;
(iv) the OBLIGORS shall have obtained an order of the
Bankruptcy Court In which the applicable Bankruptcy case is
pending, authorizing the transfer of the ADDITIONAL COLLATERAL to
ZENECA pursuant to the RIGHT OF FIRST REFUSAL and the other terms
referenced herein, and shall have otherwise satisfied all
requirements of applicable law with respect to such transfer; and
(v) the BANK'S rights and claims against BIOSYS, the
BORROWER and the COLLATERAL shall remain unimpaired to the extent
of any INDEBTEDNESS remaining after application of the proceeds
payable on account of the sale of the ADDITIONAL COLLATERAL, and
the BANK shall receive such reasonable further assurances thereof
as it may require.
As used herein, "Insolvency Proceedings" means with respect to any
Person: (a) any case or proceeding commenced by or against such Person,
under any provision of the United States Bankruptcy Code, as amended, or
under any other bankruptcy or insolvency Law; (b) any assignments for the
benefit of creditors, formal or informal moratoriums, compositions or
extensions with some or all creditors with respect to any indebtedness of
such Person; (c) the appointment of a receiver, assignee, custodian,
trustee or similar official under any insolvency or creditors' rights Law
for any property of such Person. 8. Conditions Precedent. The agreements of
the BANK hereunder shall be effective only upon the satisfaction of the
following conditions:
(a) this AGREEMENT shall have been duly authorized, executed and
delivered by all parties hereto;
(b) the SUBLEASE and the SUBLEASE ASSIGNMENT shall have been executed
by all parties thereto;
(c) the SUPPLEMENTAL SECURITY AGREEMENT and the financing statements
made pursuant thereto shall have been "executed and delivered to the BANK
and MIDFA;
(d) all of the representations and warranties of the OBLIGORS under
Section 9 hereof shall be true and correct in all material respects; and
(e) the OBLIGORS shall have paid the modification fee and the expenses
incurred by the BANK through May 2, 1996, as required by Section 3 hereof.
9. Representations and Warranties of the Obligors. The OBLIGORS hereby
severally represent and warrant to the BANK as follows as of the effective
date hereof and as of the date of execution and delivery hereof (if other
than the effective date hereof):
(a) all matters represented and warranted by the OBLIGORS
pursuant to Section 9 of the SECOND MODIFICATION AGREEMENT continue to
be true and correct as of the date of this AGREEMENT;
(b) each OBLIGOR has the power to enter into this AGREEMENT and
the transactions contemplated hereby, and such entry has been duly
authorized by each such OBLIGOR;
(c) each OBLIGOR has duly executed and delivered this AGREEMENT;
(d) this AGREEMENT and the other BOND DOCUMENTS are the valid and
binding obligations of the OBLIGORS, am fully enforceable against the
OBLIGORS in accordance with their respective terms, and as to which
none of the OBLIGORS has any set- off, defense or counterclaim;
(e) the ADDITIONAL COLLATERAL is more particularly described in
the SUPPLEMENTAL SECURITY AGREEMENT, and all such ADDITIONAL
COLLATERAL is owned by the BORROWER free and clear of any lien,
assignment, security interest or other interest of any person or
entity except the first priority duly perfected liens and security
interests of the BANK, pursuant to the terms and conditions of the
SUPPLEMENTAL SECURITY AGREEMENT and the other BOND DOCUMENTS; and
(f) no EVENT OF DEFAULT exists under any of the BOND DOCUMENTS
10. Events of Default. The occurrence of any of the following events
or circumstances shall constitute an event of default (each an "EVENT OF
DEFAULT") hereunder and under the other BOND DOCUMENTS:
(a) any failure by the OBLIGORS to pay any amount due on account
of fees and expenses incurred subsequent to May 2, 1996, as required
by Section 3 hereof, if such failure continues for more than 5 days
after written notice thereof from the BANK to the OBLIGORS;
(b) any failure by the OBLIGORS to make, in a timely manner, any
of the other payments required under the BOND DOCUMENTS, time being of
the essence;
(c) any representation or warranty made by the OBLIGORS under
Section 9 or Section 12 hereof shall fail to be true and correct in
any material respect as of the date made or deemed made;
(d) any failure by BIOSYS to notify the BANK of any agreement
whereby BIOSYS becomes bound to comply with any financial covenants,
as required by Section 6 hereof; or any failure by BIOSYS to execute
and deliver to the BANK any document required to be executed and
delivered by BIOSYS pursuant to Section 6 unless such failure is cured
within 10 days after written notice from the BANK to the OBLIGORS;
(e) any failure of either OBLIGOR to perform or otherwise comply
with any of their other covenants or agreements under the BOND
DOCUMENTS, which failure continues beyond any applicable grace or cure
period;
(f) any event of default under the credit agreement or related
documents between BIOSYS and Imperial Bank, or under any documentation
for any subsequent credit facility provided to BIOSYS by any lender or
lenders, unless the same is cured or waived in accordance with the
applicable documentation; or
(g) any other event or circumstance which constitutes an EVENT OF
DEFAULT or an event of default under any BOND DOCUMENT (provided that
any applicable cure period has expired without such event or
circumstance being cured).
11. Rights and Remedies Upon Default. If, after the date of the
execution of this AGREEMENT by the parties hereto, an EVENT OF DEFAULT
occurs under this AGREEMENT or under any other BOND DOCUMENT, the BANK,
after the expiration of any applicable cure period, shall be entitled,
immediately and without further notice or demand, to (a) accelerate payment
of all INDEBTEDNESS that is owed to the BANK under the BOND DOCUMENTS; (b)
confess judgment against the OBLIGORS pursuant to the terms and conditions
of paragraph 23 of the FIRST MODIFICATION AGREEMENT for all INDEBTEDNESS
that is owed at that time to the BANK under the BOND DOCUMENTS; and (c)
assert and enforce all other rights and remedies which are available to the
BANK under this AGREEMENT, the other BOND DOCUMENTS and applicable law with
respect to the OBLIGORS and their respective assets. 12. Corporate Status
of-Borrower; Franchise Tax Liability. The Secretary of State of the State
of Delaware declined to issue a certificate of good standing for the
BORROWER when requested to do so in connection with this Agreement,
indicating that $148,019.45 in 1995 franchise taxes are owed by the
BORROWER. The BORROWER and BIOSYS have disputed this amount and assert that
the BORROWER'S good standing in the state of Delaware can be restored by
the filing of amended franchise tax returns for the BORROWER and BIOSYS and
the payment of the estimated amount set forth in item (c) below. In
addition to the representations and warranties set forth in Section 9
above, the OBLIGORS hereby represent and warrant that, as of the effective
date of this Agreement and as of the date of execution and delivery of this
Agreement:
(a) the BORROWER is incorporated in the State of Delaware and its
charter has not been revoked, although a good standing certificate is not
presently available from the Delaware Secretary of State, and the BORROWER
remains authorized to exercise Its powers recited in its articles of
incorporation and transact business in the State of Delaware;
(b) the BORROWER is duly authorized to exercise its powers recited in
its articles of incorporation and transact business in the State of
Maryland, as indicated in the Certificate dated May 2, 1996 issued by the
Maryland State Department of Assessments and Taxation;
(c) the liability of the BORROWER for the payment of 1995 franchise
taxes to the State of Delaware is estimated by BORROWER not to exceed
$4,000.00, reflecting an estimated total 1995 franchise Tax liability for
BORROWER of approximately $10,000.00, as against a creditor $3,760.08
currently due to BORROWER from the Delaware Secretary of State for
over-payment of its 1994 franchise tax fees, and an additional $2,436.00
credit due to BIOSYS based on its amended 1995 franchise tax return to be
filed forthwith, which credits the Delaware Secretary of State has
indicated it will apply toward BORROWER's 1995 obligations; and
(d) the only requirements to be satisfied by the BORROWER in restoring
its good standing in the State of Delaware are the payment of 1995
franchise taxes in an amount estimated not to exceed that indicated in item
(c) above and the filing of amended franchise tax returns and related
documentation, as required, in the forms thereof prescribed by applicable
law (provided, that no such documentation shall result in any impairment of
the BORROWER's status described in items (a) and (b) above).
Further, the OBLIGORS covenant that, within 30 days after the date of
this Agreement, they shall provide the Bank and MIDFA with written evidence
that the requirements described in item (d) above have been satisfied,
which evidence shall consist of copies of the franchise tax return and
other applicable documentation, evidence of payment of the applicable
franchise tax, and an original certificate of good standing issued by the
Delaware Secretary of State.
13. Consent and Approval of MIDFA; Acknowledgment of Liability: Other
Agreements. MIDFA consents to and approves the terms and conditions of this
AGREEMENT and the BANK's and OBLIGORS' execution thereof, and acknowledges
and agrees that the MIDFA INSURANCE AGREEMENT, as modified by' the FIRST
MODIFICATION AGREEMENT, the SECOND MODIFICATION AGREEMENT, the LETTER
AGREEMENTS and this AGREEMENT (collectively, the "MIDFA INSURANCE
AGREEMENT"), shall remain in place and in full force and effect,
notwithstanding the BANK's and the OBLIGORS' execution of this AGREEMENT
and the various agreements of the BANK and the OBLIGORS as set forth
herein. MIDFA further acknowledges and agrees that as of the date of this
AGREEMENT, MIDFA has received all notices that it was required to receive
from the BANK under and pursuant to the MIDFA INSURANCE AGREEMENT, and that
MIDFA does not have any defenses, set-offs or counterclaims to its
liability to the BANK under the MIDFA INSURANCE AGREEMENT. MIDFA also
acknowledges and agrees that pursuant to the terms and conditions of the
MIDFA INSURANCE AGREEMENT, MIDFA's maximum liability to the BANK thereunder
presently equals and shall hereafter equal the lesser of: (a) the total
amount of the INDEBTEDNESS due and owing to the BANK under the BOND
DOCUMENTS from time to time, or (b) $3,000,000.00. Except as specifically
modified herein, all other terms, covenants and conditions set forth in the
MIDFA INSURANCE AGREEMENT shall remain unchanged and in full force and
effect and are hereby ratified and confirmed by MIDFA and the BANK in all
respects.
14. Other Terms and Covenants, Conditions: No Novation. Other than the
foregoing, all other terms, covenants and conditions set forth in the BOND
DOCUMENTS shall remain unchanged, in full force and effect and are hereby
ratified, acknowledged and confirmed by the OBLIGORS, MIDFA and the BANK in
all respects, and the OBLIGORS shall hereafter strictly comply with all of
the terms, covenants and conditions set forth in the BOND DOCUMENTS
including, without limitation, the payment terms set forth therein. This
AGREEMENT and the various documents to be executed pursuant to this
AGREEMENT shall not cause a novation of any of the BOND DOCUMENTS, nor
shall they extinguish, affect or impair the OBLIGORS' or MIDFA's respective
obligations to the BANK under the BOND DOCUMENTS. In addition, this
AGREEMENT and the, various documents to be executed pursuant to this
AGREEMENT shall not release, affect or impair the priority of any security
interests or liens held by the BANK against any assets of the OBLIGORS
including, without limitation, the COLLATERAL.
15. Governing Law. The performance and constructions of this AGREEMENT
and the other BOND DOCUMENTS shall be governed by the laws of the State of
Maryland (excluding conflicts of law provisions).
16. Amendment. This AGREEMENT may only be altered, modified or amended
by a writing executed by all of the parties here-to.
17. Time. Time is of the essence with respect to this AGREEMENT and
the terms and conditions hereof.
18. Tense, Gender, Defined Terms, Captions, Effective Dates, Execution
in Counterparts and Via-Facsimile: Miscellaneous. As used herein, the
plural shall refer to and include the singular, and the singular the
plural, and the use of any gender shall include and refer to any other
gender. All defined terms are completely capitalized throughout this
AGREEMENT. All captions are for the purpose of convenience only. This
AGREEMENT shall be executed and delivered by the parties hereto on or
before 5:00 p.m. on May 7, 1996, and the effective date of this AGREEMENT
shall be May 1, 1996. This AGREEMENT may be executed and delivered in
counterparts. Signed counterparts may be delivered via facsimile, with all
copies delivered via facsimile to be deemed to have the same force and
effect as if bearing original Denatures.
19. Waiver of Jury Trial. The OBLIGORS, the BANK and MIDFA agree that
any suit, action, or proceeding, whether claim or counterclaim, brought or
instituted by or against any of them, or any of their successors or
assigns, on or with respect to this AGREEMENT or any other BOND DOCUMENT,
or which In any way relates, directly or indirectly, to the respective
obligations of the parties hereto under any BOND DOCUMENT, or the dealings
of the parties with respect thereto, shall be tried by a court and not by a
Jury. THE OBLIGORS, THE BANK AND MIDFA EXPRESSLY WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDINGS. The parties hereto
acknowledge and agree that this provision is a specific and material aspect
of the agreement between the parties and that the BANK would not enter into
this AGREEMENT if this provision were not contained herein.
20. Release of Bank. The OBLIGORS jointly and severally release,
acquit, exonerate and forever discharge the BANK, all of the BANK's
affiliates, parent corporations and subsidiaries, all of the BANK's past,
present and future directors, officers, employees, agents and attorneys,
and MIDFA (collectively. the "RELEASED PARTIES"), from any and all claims,
causes of action, suits and damages (including claims for attorneys' fees)
which the OBLIGORS jointly or severally ever had or now have against any or
all of the RELEASED PARTIES, Jointly or severally.
(Signature and Acknowledgments Follow.)
<PAGE>
IN WITNESS WHEREOF, the Parties hereto have executed this AGREEMENT as of the
date first written above with the specific intention of creating an instrument
under seal.
WITNESS/ATTEST: OBLIGORS:
CROP GENETICS INTERNATIONAL
CORPORATION,
A Delaware Corporation
Michael R. N. Thomas By: Edwin C. Quattlebaum
Title: President and Chief Executive Officer
Date: May 7, 1996
WITNESS/ATTEST: BIOSYS, INC.,
A Delaware Corporation
Michael R. N. Thomas By: Edwin C. Quattlebaum
Title: President and Chief Executive Officer
Date: May 7, 1996
MIDFA:
MARYLAND INDUSTRIAL DEVELOPMENT
FINANCING AUTHORITY,
A Body Politic and Corporate and a
Public instrumentality of the State
of Maryland
By: Steven J. Lynch (SEAL)
Title: Assistant Secretary of
Financing Programs
Date: May 13, 1996
<PAGE>
BANK:
THE FIRST NATIONAL BANK OF MARYLAND,
A National Baking Association
Barbara Bennett By: W. Blake Hampson (SEAL)
Title: Vice President
Date: May 10, 1996
ACKNOWLEDGMENTS
STATE OF MARYLAND CITY/COUNTY OF ANNE ARUNDEL TO WIT:
I HEREBY CERTIFY, that on this 7th day of May, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
Edwin Quattlebaum, who acknowledged himself to be the President and Chief
Executive Officer of CROP GENETICS INTERNATIONAL CORPORATION, a Delaware
corporation, and who further acknowledged that he, as such President and Chief
Executive Officer, being authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of the Delaware
Corporation, by himself as President and Chief Executive Officer.
IN WITNESS MY Hand and Notarial Seal.
Sandra Soroka (SEAL)
NOTARY PUBLIC
My Commission Expires:
June 24, 1998
<PAGE>
STATE OF MARYLAND CITY/COUNTY OF ANNE ARUNDEL TO WIT:'
I HEREBY CERTIFY, that on this 7th day of May, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
Edwin Quattlebaum, who acknowledged himself to be the President and Chief
Executive Officer of BIOSYS, INC., a Delaware corporation, and who further
acknowledged that he, as such President and Chief Executive Officer, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained by signing the name of the Delaware Corporation, by himself as
President and Chief Executive Officer.
IN WITNESS MY Hand and Notarial Seal.
Sandra Soroka (SEAL)
NOTARY PUBLIC
My Commission Expires:
June 24, 1998
STATE OF MARYLAND CITY/COUNTY OF BALTIMORE TO WIT:
I HEREBY CERTIFY, that on this 13th day of April, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
Stephen J. Lynch, who acknowledged himself/herself to be the Assistant Secretary
of Financing Programs of the MARYLAND INDUSTRIAL DEVELOPMENT FINANCING
AUTHORITY, a body politic and corporate, and who further acknowledged that
he/she, as such Assistant Secretary of Financing Programs, being authorized so
to do, executed the foregoing instrument for the purposes therein contained by
signing the name of the MARYLAND INDUSTRIAL DEVELOPMENT FINANCING AUTHORITY, by
himself/herself as Assistant Secretary of Financing Programs.
IN WITNESS MY Hand and Notarial Seal.
Jane B. Sibez (SEAL)
NOTARY PUBLIC
My Commission Expires:
November 1, 1980
<PAGE>
STATE OF Maryland CITY/COUNTY OF Baltimore TO WIT:'
I HEREBY CERTIFY, that on this 10th day of May, 1996, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally W. Blake
Hampson, who acknowledged that he is a Vice President of First National Bank of
Maryland, a national banking association, and who further acknowledged that he,
as such Vice President, being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name of the
national banking association, by himself as Vice President.
IN WITNESS MY Hand and Notarial Seal.
Barbara Bennett (SEAL)
NOTARY PUBLIC
My Commission Expires:
July 1, 1999
<PAGE>
THIS DOCUMENT IS A COPY OF THE EXHIBIT 10.69 FOR THE 10Q FILED ON MAY 15,
1996, PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
IMPERIAL BANK
Special Markets Group o 2460 Sand Hill Road o Suite 102 o Menlo Park, CA 94025 o
(415) 233-3000
May 13,1996
Mr. Michael Thomas
Vice President and Chief Financial Officer
BIOSYS
10150 Old Columbia Road
Columbia, Md. 21046-1704
Re: Imperial Bank Loan No. 00700005672-3
Dear Mike:
With reference to the Credit Terms and Conditions dated July 26, 1995, with
attached Commitment Letter dated July 18, 1995, (collectively refereed to as the
"Loan Agreement") between Imperial Bank ("Bank") and biosys, Inc. ("Borrower"),
and as amended by letters dated November 14, 1995, December 20, 1995, February
9, 1996, in connection with above referenced loan ("Loan"), Bank, waives all
covenant violations contained in the loan agreement through March 31, 1996 and
to hereby modifies certain existing covenant requirements as follows:
Borrower to maintain on monthly basis unless otherwise noted, to be measured at
April 30, 1996, and May 31, 1996; a Minimum Tangible Net Worth of $4,000,000; a
Maximum Total Liabilities to Tangible Net Worth Ratio of 5.0:1.0; a Minimum
Quick Ratio of 0.5:1.0; and a Maximum Allowed Five-Month Cumulative Operating
Loss (measured from January 1, 1996 to May 31, 1996) of $4,000,000.
Except as modified hereby, the Loan Agreement shall remain unaltered and in full
force and effect. This letter shall not constitute an agreement to future
modification of any covenant or a waiver of any future default or breach of
covenant.
Please sign below to show your agreement with the foregoing and return an
original to me.
Sincerely,
Steven D. Kattner
Vice President
Special Markets Group
Accepted and Agreed:
biosys, lnc.
By: Michael R. N. Thomas
Title Vice President and Chief Financial Officer
Date May 13, 1996
THIS DOCUMENT IS A COPY OF THE EXHIBIT 10.70 FOR THE 10Q FILED ON MAY 15,
1996, PURSUANT TO A RULE 201 TEMPORARY HARDSHIP EXEMPTION.
May 13, 1996
Mr. Michael Thomas
Vice President and Chief Financial Officer
Biosys
10150 Old Columbia Road
Columbia, MD 21046-1704
Re: Lease Agreement Between Biosys and Venture Lending & Leasing, Inc., dated
December 21, 1994
Dear Mike:
VLLLI will waive the financial covenants in Paragraphs 24 (d), (e) and (f) of
the above referenced agreement and any existing amendments to them through June
30, 1996. This waiver is specifically conditioned upon the continued waiver
through the same period by Imperial Bank of its financial covenants with Biosys.
Sincerely
Ronald W. Swenson
2010 North First Street. Suite 310 - San Jose, CA 95131
- (408) 38-8577 - Fax (408) 36-8625
