exv10w64



 




Exhibit 10.64


SIXTH AMENDMENT OF LEASE




     THIS
SIXTH AMENDMENT OF LEASE (this “Amendment”) is made
as of this 13th day
of May, 2004 by and between M.O.R. CBC LLC, a Maryland limited liability company
(“Landlord”), and MARTEK BIOSCIENCES CORPORATION, a Delaware corporation
(“Tenant”).



RECITALS




     WHEREAS, Landlord and Tenant are the lessor and the lessee, respectively,
under the Existing Lease (herein defined), pursuant to which Landlord demises
to Tenant, and Tenant leases from Landlord, the Existing Premises (herein
defined) in that certain building known as 6480 Dobbin Road in Columbia,
Howard County, Maryland; and



     WHEREAS, Landlord and Tenant wish to enter into this Amendment to extend
the term of the Existing Lease, expand the size of the premises demised by
Landlord to Tenant pursuant to the Existing Lease, and modify certain of the
other terms and conditions of the Existing Lease, including, without
limitation, the terms and conditions of the Existing Lease governing the
payment of Minimum Monthly Rent (as such term is defined in the Existing Lease
and also sometimes referred to in the Existing Lease as “Basic Annual Rent”)
by Tenant to Landlord.



AGREEMENTS




     NOW, THEREFORE, WITNESSETH, that for and in consideration of the mutual
covenants and agreements herein contained and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree as follows, intending their agreements to be
made under seal:



     Section 1.  Definitions.



     The following defined terms, when and as used in this Amendment, shall
have the meanings herein ascribed to them. To the extent a defined term is
used in this Amendment which is not defined in this Amendment, it shall have
the meaning in this Amendment which is ascribed to such defined term in the
Existing Lease, to the extent that a meaning for such defined term is set
forth in the Existing Lease.



     (a) “Additional Premises” means that certain space adjacent to the
Existing Premises, consisting of approximately 8,663 square feet, as more
particularly shown on Exhibit A attached to and hereby made a part of this
Amendment.



     (b) “Additional Premises Occupancy Date” means the date of this
Amendment.



     (c) “Building” means that certain building located in Columbia, Howard
County, Maryland known as 6480 Dobbin Road.



     (d) “Existing Lease” means that certain Lease (the “Original Lease”) dated
August 15, 1992 between Original Landlord, as lessor, and Tenant, as lessee,
with respect to the Existing Premises, together with all addenda, exhibits,
riders and supplements thereto and all amendments and modifications thereof
made prior to the date of this Amendment (including, without limitation, (i)
that certain Lease Modification Agreement dated October 14, 1993 made between
Original Landlord and Tenant (the “First Amendment”), (ii) that certain Second
Lease Modification Agreement dated September 27, 1994 made between Original
Landlord and Tenant (the “Second Amendment”), (iii) that certain Third
Amendment of Lease dated August 1, 1997 made between First Successor Landlord
and Tenant (the “Third Amendment”), (iv) that certain Fourth Amendment of Lease
dated August 5, 1998 made between First Successor Landlord and Tenant (the
“Fourth Amendment”), and (v) that certain Fifth Amendment of Lease dated as of
November 21, 2002 made between Landlord and Tenant (the “Fifth Amendment”)).
All of the right, title and interest of Original Landlord, as lessor under and
with respect to the Original Lease, as modified by the First Amendment and the
Second Amendment, was assigned and conveyed prior to the date of the Third
Amendment by Original Landlord to First Successor Landlord. Landlord is
successor-in-interest to First Successor Landlord as lessor under and with
respect to the Existing Lease.



     (e) “Existing Premises” means that certain space, as more particularly
described in the Existing Lease, located in the Building and consisting of
approximately 44,662 square feet.



     (f) “Expanded Premises” means, collectively, the Existing Premises and
Additional Premises. The Expanded Premises comprises, collectively, 53,325
square feet and all of the space within the Building.



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     (g) “First Successor Landlord” means M.O.R. Columbia Limited Partnership,
a Maryland limited partnership.



     (h) “Force Majeure” means the occurrence of any of the following events,
as affecting the performance by Landlord of any of the obligations of Landlord
set forth in this Amendment (other than obligations relating thereto to make
payments or to pay money): (i) a strike; (ii) a lockout; (iii) labor disputes;
(iv) acts of God; (v) the ability to obtain labor or materials or reasonable
substitutes therefor; (vi) governmental restrictions, regulations, approvals
or controls; (vii) delays in the issuance of permits; (H) enemy, terrorist or
hostile governmental actions; (viii) civil commotions; (ix) fire or other
casualties; (x) adverse weather conditions; and/or (xi) any other causes
beyond the reasonable control of Landlord.



     (i) “Lease” means the Existing Lease, as amended by this Amendment.



     (j) “Original Landlord” means Aetna Life Insurance Company.



     Section 2. Extension of Original Term of Existing Lease.



     The original term of the Existing Lease (as previously extended and
expiring on November 30, 2004) is hereby further extended through 11:59 p.m.,
local time, on January 31, 2011. That portion of the original term of the
Existing Lease, as so further extended, commencing on December 1, 2004 and
ending on January 31, 2011 is hereinafter sometimes called the “Extended
Term”. That portion of the original term of the Existing Lease occurring prior
to December 1, 2004 is hereinafter sometimes referred to as the “Initial
Term”. From and after the date of this Amendment, the original term of the
Existing Lease shall be deemed to be comprised of the Initial Term and the
Extended Term, as the same may be extended or renewed in accordance with the
terms and conditions of this Amendment and/or any amendments to the Lease made
after the date of this Amendment between Landlord and Tenant.



     Section 3. Leasing of Additional Premises.



     Commencing on the Additional Premises Occupancy Date, Landlord shall
lease the Additional Premises to Tenant, and Tenant shall rent the Additional
Premises from Landlord, for the remainder of the Initial Term and for the
Extended Term (as the same may be extended or renewed in accordance with the
terms and conditions of this Amendment and/or any amendments to the Lease
made after the date of this Amendment between Landlord and Tenant), all in
accordance with the terms and conditions of the Lease. From and after the
Additional Premises Occupancy Date, the defined term “Premises”, as such
defined term is defined and used in the Lease, for all intents and purposes
of the Lease, shall mean and refer to the Expanded Premises. For all intents
and purposes of the Lease, as the context shall require, the defined term
“Premises”, as such defined term is defined and used in the Lease with
respect to all portions of the original term of the Lease occurring prior to
the Additional Premises Occupancy Date, shall refer only to the Existing
Premises.



     Section 4. Minimum Monthly Rent Payable for Expanded Premises With Respect to Certain Portion of Initial Term and Extended Term.




     Notwithstanding anything to the contrary set forth in the Existing
Lease, the Minimum Monthly Rent (as such defined term is defined and used in
the Lease) payable by Tenant to Landlord for the Expanded Premises with
respect to that portion of the Initial Term commencing on the Additional
Premises Occupancy Date and ending on November 30, 2004 and the Extended
Term shall be the following:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Annual	 	Monthly Installment of	 	Annual Minimum
	Period of Time During Certain Portion of	 	Minimum	 	Minimum Monthly	 	Monthly Rent Per
	Initial Term and Extended Term
	 	Monthly Rent
	 	Rent
	 	Square Foot

	Additional Premises Occupancy
Date to November 30, 2004	 	$	613,237.50	 	 	$	51,103.13	 	 	$	11.50	 
	December 1, 2004 to January 31, 2005
	 	$	613,237.50	 	 	$	51,103.13	 	 	$	11.50	 
	February 1, 2005 to January 31, 2006
	 	$	628,568.44	 	 	$	52,380.70	 	 	$	11.79	 
	February 1, 2006 to January 31, 2007
	 	$	644,282.65	 	 	$	53,690.22	 	 	$	12.08	 
	February 1, 2007 to January 31, 2008
	 	$	660,389.72	 	 	$	55,032.48	 	 	$	12.38	 
	February 1, 2008 to January 31, 2009
	 	$	676,899.46	 	 	$	56,408.29	 	 	$	12.69	 
	February 1, 2009 to January 31, 2010
	 	$	693,821.95	 	 	$	57,818.50	 	 	$	13.01	 







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	 	 	Annual	 	Monthly Installment of	 	Annual Minimum
	Period of Time During Certain Portion of	 	Minimum	 	Minimum Monthly	 	Monthly Rent Per
	Initial Term and Extended Term
	 	Monthly Rent
	 	Rent
	 	Square Foot

	February 1, 2010 to January 31, 2011

	 	$	711,167.50	 	 	$	59,263.96	 	 	$	13.34	 







     Section 5. Additional Rent.



     (a) Effective as of the Additional Premises Occupancy Date, the defined
terms “Pro Rata Percentage”, “pro rata share”, and “proportionate share”, as
pertaining to the Premises (and as such defined terms are used in the Existing
Lease), shall be increased to 100.0%. Notwithstanding the foregoing, for all
intents and purposes of the Lease with respect to those portions of the term of
the Lease occurring prior to the Additional Premises Occupancy Date, the
defined terms “Pro Rata Percentage”, “pro rata share”, and “proportionate
share”, as such defined terms are used with respect to the Premises, shall
continue to have the meaning and the values ascribed to such defined term in
the Existing Lease, as the context shall require.



     (b) Subject to the terms and conditions of Section 5(a) of this Amendment,
all of the terms and conditions of the Existing Lease governing the payment by
Tenant to Landlord of “additional rent” (including, without limitation,
payments by Tenant in regard to “Real Property Taxes”, “Taxes”, “Common Area
Expenses” and for Landlord’s insurance costs) for the Existing Premises with
respect to the Initial Term shall also be applicable, as the context shall
require, with respect to the leasing by Landlord to Tenant of the Additional
Premises with respect to that portion of Initial Term commencing on the
Additional Premises Occupancy Date.



     (c) Subject to the terms and conditions of Section 5(a) of this Amendment,
all of the terms and conditions of the Existing Lease governing the payment by
Tenant to Landlord of “additional rent” (including, without limitation,
payments by Tenant in regard to “Real Property Taxes”, “Taxes”, “Common Area
Expenses” and for Landlord’s insurance costs) for the Expanded Premises with
respect to the Initial Term shall remain applicable, as the context shall
require, with respect to the leasing by Landlord to Tenant of the Expanded
Premises with respect to the Extended Term.



     Section 6. Tenant Improvements.



     (a) For purposes of this Amendment, “Tenant Repair HVAC Units” means,
collectively, the heating, ventilating and air conditioning units serving the
Expanded Premises that are as of the date of this Amendment located on the roof
of the Building, as more particularly described in
Exhibit B attached to and
hereby made a part of this Amendment. For purposes of this Amendment, “Tenant HVAC
Improvements” means, collectively, the alterations and improvements to the
heating, ventilating and air conditioning systems serving the Expanded Premises
that are to be constructed and/or installed by Tenant at the Expanded Premises
in accordance with the terms and conditions of Section 6 of this Amendment,
including, without limitation, the installation of new rooftop heating,
ventilating and air conditioning units to serve the Expanded Premises in lieu
of the Tenant Repair HVAC Units. For purposes of this Amendment, “Cost of
Tenant HVAC Improvements” means, collectively, the following, if and as
actually and reasonably incurred and paid by Tenant in connection with the
construction and/or installation by Tenant of the Tenant HVAC Improvements: (i)
all hard or direct costs; (ii) all costs of architectural, engineering and
planning services; and (iii) all costs of building permits and other necessary
governmental approvals. For purposes of this Amendment, “Tenant HVAC
Improvements Allowance” means the sum of $300,219.75.



     (b) For purposes of this Amendment, “Other Tenant Improvements” means,
collectively, (i) certain alterations and improvements other than the Tenant
HVAC Improvements to be constructed and/or installed in the Expanded Premises
by Tenant in accordance with the terms and conditions of Section 6 of this
Amendment, and (ii) certain furniture, furnishings and trade fixtures,
unrelated to the Tenant HVAC Improvements, to be installed, and/or used at the
Expanded Premises by Tenant in accordance with the terms and conditions of
Section 6 of this Amendment. For purposes of this Amendment, “Cost of Other
Tenant Improvements” means, collectively, the following, if and as actually and
reasonably incurred and paid by Tenant in connection with the construction
and/or installation by Tenant of the Other Tenant Improvements: (A) all hard
or direct costs; (B) all costs of architectural, engineering and planning
services; and (C) all costs of building permits and other necessary
governmental approvals. For purposes of this Amendment, “Other Tenant
Improvements Allowance” means the sum of $799,875.00. For purposes of this
Amendment, the Tenant HVAC Improvements and the Other Tenant Improvements are
sometimes referred to, collectively, as the “Tenant Improvements”.



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     (c) Tenant has heretofore advised Landlord that on or before that date
which is eighteen (18) months after the date of this Amendment, Tenant wishes
to construct and/or install the Tenant Improvements in the Expanded Premises.
The Tenant Improvements shall be identified by Tenant and approved by Landlord
(such approval of Landlord not to be unreasonably withheld, conditioned or
delayed) after the date of this Amendment and in accordance with and subject to
the terms and conditions of Section 6 of this Amendment. Landlord hereby
consents to the construction and/or installation by Tenant of the Tenant
Improvements in accordance with the terms and conditions of Section 6 of this
Amendment; provided, however, that Tenant shall not commence the construction
and/or installation of any of the Tenant Improvements unless and until all of
the following shall have occurred: (i) Landlord shall have approved in writing
in all respects (such approval of Landlord not to be unreasonably withheld,
conditioned or delayed), the final scope of the Tenant Improvements and the
final construction drawings, plans and specifications describing the Tenant
Improvements (such final construction drawings, plans and specifications
describing the Tenant Improvements, as approved by Landlord and Tenant, being
sometimes hereinafter referred to, collectively, as the “Tenant Improvements
Plans”); (ii) Landlord shall have approved in writing (such approval of
Landlord not to be unreasonably withheld, conditioned or delayed) the general
contractor to be employed by Tenant in connection with the construction and/or
installation of the Tenant Improvements (the “Tenant Improvements Contractor”)
and the terms and conditions of the construction contract to be entered into
between Tenant and the Tenant Improvements Contractor in connection with the
construction and/or installation of the Tenant Improvements; (iii) Tenant shall
have delivered to Landlord certificates of insurance or other evidence of
insurance satisfactory to Landlord, in Landlord’s reasonable discretion,
showing that Tenant, the Tenant Improvements Contractor and all subcontractors
and materialsmen involved in connection with the construction and/or
installation of the Tenant Improvements shall have in full force and effect
such builder’s risk, commercial general liability and other insurance coverages
as shall be required by Landlord; and (iv) Tenant shall have obtained all
building permits and all other federal, state and/or local governmental
consents, permits and/or approvals, if any, required to be obtained in
connection with the construction and/or installation of the Tenant
Improvements. Landlord hereby approves The Heiserman Group of Bethesda,
Maryland as the architect to be employed by Tenant in connection with the
design, construction and installation of the Tenant Improvements (the “Tenant
Improvements Architect”).



     (d) The Tenant Improvements shall be constructed and/or installed by
Tenant at Tenant’s sole risk and in a first class manner, using new materials
reasonably acceptable to Landlord. Tenant shall not take any action or fail to
take any action, or permit any action to be taken or fail to be taken, as a
result of which a lien shall be filed against or encumber the Expanded Premises
and any such lien filed against or encumbering the Expanded Premises shall be
discharged by Tenant, at Tenant’s sole cost and expense, not later than thirty
(30) days after such filing or encumbrance. Tenant shall indemnify, defend,
protect and hold harmless Landlord from and against any and all liabilities,
losses, damages, costs and expenses (including, without limitation, reasonable
attorneys’ fees) which may be suffered or incurred by Landlord in connection
with, or in any way relating to, the construction and/or installation of the
Tenant Improvements; provided, however, that the indemnification obligations of
Tenant set forth in the preceding portions of this sentence shall not apply to
any liabilities, losses, damages, costs or expenses suffered or incurred by
Landlord, to the extent directly the result of gross negligence or willful
misconduct on the part of Landlord or any of the agents, employees or
contractors of Landlord. For purposes of this Amendment, “Tenant Improvements
Completion Date” means that date as of which Tenant shall have completed the
construction and/or installation of the Tenant Improvements. Tenant shall
give prompt notice to Landlord of the occurrence of the Tenant Improvement
Completion Date. Furthermore, not later than thirty (30) days after the Tenant
Improvements Completion Date, Tenant shall deliver to Landlord, in form and
substance reasonably satisfactory to Landlord in all respects, the following
(collectively, the “Tenant Improvements Completion Items”): (i) a certificate,
signed by the Tenant Improvements Architect and/or the Tenant Improvements
Contractor, certifying to Landlord and Tenant that (A) the Tenant Improvements
have been completed in all material respects in accordance with the Tenant
Improvements Plans and (B) the Tenant Improvements, as so completed, comply in
all respects with all applicable federal, state and local laws, ordinances,
rules and regulations pertaining thereto (including, without limitation, the
Americans With Disabilities Act of 1990 and all regulations promulgated
thereunder and all applicable zoning, planning and building laws, ordinances,
codes, rules and regulations); (ii) a true and complete copy of the temporary
or final certificate of occupancy issued with respect to the Tenant
Improvements by the local governmental authority having jurisdiction with
respect thereto or evidence that such local governmental authority shall have
otherwise evidenced its approval of the Tenant Improvements in a manner
reasonably satisfactory to Landlord; and (iii) true and complete final waivers
and releases of liens with respect to the Tenant Improvements executed and
delivered by the Tenant Improvements Contractor and all subcontractors and
materialmen involved in connection therewith



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stating, among other things, that all monies due and owing to the Tenant
Improvements Contractor or, as applicable, any such subcontractor or
materialmen, in regard to the Tenant Improvements have been paid in full.
Notwithstanding the foregoing, Tenant shall promptly supply to Landlord any
final certificate of occupancy issued with respect to the Tenant Improvements
by the local governmental authority having jurisdiction with respect thereto
if a temporary certificate of occupancy shall have been provided by Tenant to
Landlord in accordance with the preceding sentence of this paragraph as part
of the Tenant Improvements Completion Items.




     (e) (i) Tenant shall pay for all costs and expenses whatsoever
incurred by Tenant in connection
with the construction and/or installation of the Tenant Improvements,
including, without limitation, all of the items includable as parts of the Cost
of Tenant HVAC Improvements and the Cost of Other Tenant Improvements;
provided, however, Landlord shall reimburse Tenant (A) for items includable in
the Cost of Tenant HVAC Improvements, but only in an amount not to exceed the
amount of the Tenant HVAC Improvements Allowance, and (B) for items includable
in the Cost of Other Tenant Improvements, but only in an amount not to exceed
the amount of the Other Tenant Improvements Allowance. From time to time during
the construction and/or installation of the Tenant Improvements (but not more
frequently than once in any calendar month), Tenant shall have the right, at
Tenant’s option, subject to the terms, conditions and limitations set forth in
the preceding provision of Section 6(e)(i) and elsewhere in this Amendment and
provided Tenant shall not be in default with respect to any of the agreements,
covenants, obligations or undertakings of Tenant set forth in the Lease (which
default on the part of Tenant shall have continued after the giving of all
required notices by Landlord to Tenant and the expiration of all applicable
grace periods), to request that Landlord reimburse Tenant (I) for costs and
expenses includable in the Cost of Tenant HVAC Improvements that have actually
been incurred and paid by Tenant in connection with the construction and/or
installation of the Tenant HVAC Improvements, and/or (II) for costs and
expenses includable in the Cost of Other Tenant Improvements that have actually
been incurred and paid by Tenant in connection with the construction and/or
installation of the Other Tenant Improvements.



          (ii) Any request made by Tenant for reimbursement in accordance with the
terms and conditions of Section 6(e) of this Amendment shall be made pursuant
to a written requisition (in the form of an AIA G703 Requisition or another
form of requisition reasonably acceptable to Landlord) signed by Tenant, the
Tenant Improvements Contractor and/or the Tenant Improvements Architect,
certifying, in form and substance satisfactory to Landlord, in Landlord’s
reasonable discretion, that (A) all of the work described in or covered by
such requisition has been performed in accordance with the Tenant Improvements
Plans and all applicable laws, ordinances, statutes, rules and regulations,
(B) all prior advances of the Tenant HVAC Improvements Allowance and the Other
Tenant Improvements Allowance have been used and applied for the purposes
stated in prior requisitions, and (C) all materials covered by such
requisition have been incorporated into the Tenant Improvements or adequately
stored and insured at the Expanded Premises.



          (iii) Any request made by Tenant for reimbursement in accordance with the
terms and conditions of Section 6(e) of this Amendment shall also include a
certification by Tenant to Landlord, in form and substance satisfactory to
Landlord, in Landlord’s reasonable discretion, that: (A) the amount requested
for reimbursement by Tenant with respect to items includable in the Cost of
Tenant HVAC Improvements, plus those amounts (if any) previously disbursed by
Landlord for amounts includable in the Cost of Tenant HVAC Improvements, does
not, as a percentage of the total of funds available to Tenant for payment of
costs and expenses relating to the Tenant HVAC Improvements, exceed the
percentage of completion of the Tenant HVAC Improvements as of the date of
such requisition; (B) the undisbursed portion of the Tenant HVAC Improvements
Allowance, plus such additional funds being made available by Tenant with
respect to the construction and/or installation of the Tenant HVAC
Improvements, is sufficient to achieve final completion of the Tenant HVAC
Improvements in accordance with the Tenant Improvements Plans and the schedule
for completion of the Tenant HVAC Improvements approved by Landlord and
Tenant; (C) the amount requested for reimbursement by Tenant with respect to
items includable in the Cost of Other Tenant Improvements, plus those amounts
(if any) previously disbursed by Landlord for amounts includable in the Cost
of Other Tenant Improvements, does not, as a percentage of the total of funds
available to Tenant for payment of costs and expenses relating to the Other
Tenant Improvements, exceed the percentage of completion of the Other Tenant
Improvements as of the date of such requisition; (D) the undisbursed portion
of the Other Tenant Improvements Allowance, plus such additional funds being
made available by Tenant with respect to the construction and/or installation
of the Other Tenant Improvements, is sufficient to achieve final completion of
the Other Tenant Improvements in accordance with the Tenant Improvements Plans
and the schedule for completion of the Other Tenant Improvements approved by
Landlord and Tenant; and (E) the work and materials for which payment is
requested has been physically



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incorporated into the Expanded Premises free and clear of any security
interests, liens or encumbrances. In the event that a requisition for
reimbursement made by Tenant in accordance with the terms and conditions of
Section 6(e) of this Amendment is submitted in a form complying with the terms
and conditions of Section 6(e) of this Amendment and all of the conditions
precedent to Landlord’s obligation to fund any such reimbursement have been
fulfilled, then and in any such event, Landlord shall fund such requisition
not later than thirty (30) days after the date such requisition and all
related materials shall have been submitted by Tenant to Landlord.



          (iv) Each requisition for reimbursement submitted by Tenant to Landlord
in accordance with the terms and conditions of Section 6(e) of this Amendment
shall be accompanied by: (A) such invoices, contracts, bills, vouchers, change
orders and other statements and information as may be reasonably requested by
Landlord; and (B) lien waivers from the Tenant Improvements Contractor and all
subcontractors and suppliers receiving payments from prior advances of the
Tenant HVAC Improvements Allowance and/or the Other Tenant Improvements
Allowance. The aggregate of all advances made by Landlord from the Tenant HVAC
Improvements Allowance at any time shall not exceed, in the opinion of
Landlord, in its reasonable judgment, the value of the work done to and/or
materials physically incorporated into the Expanded Premises as part of the
construction and/or installation of the Tenant HVAC Improvements. The
aggregate of all advances made by Landlord from the Other Tenant Improvements
Allowance at any time shall not exceed, in the opinion of Landlord, in its
reasonable judgment, the value of the work done to and/or materials physically
incorporated into the Expanded Premises as part of the construction and/or
installation of the Other Tenant Improvements.



          (v) Landlord shall have the right, at any time or times, to inspect the
Tenant Improvements or any portions thereof, whether before or after making
any advance of the Tenant HVAC Improvements Allowance and/or the Other Tenant
Improvements Allowance, and shall have the right to condition funding of any
requisition therefor requested by Tenant upon a satisfactory inspection and/or
examination of the Tenant Improvements (or any portion thereof) by Landlord or
an agent or representative of Landlord. Any such inspection and/or examination
by Landlord or any of the agents or representatives of Landlord shall be for
the sole benefit of Landlord and for ensuring that the Tenant Improvements are
proceeding satisfactorily. In no event shall such inspection and/or
examination be construed as (A) participation by Landlord in the construction
and/or installation of the Tenant Improvements, (B) approval by Landlord of
the quality of the Tenant Improvements, or (C) a warranty by Landlord that the
Tenant Improvements comply with any applicable laws, ordinances, rules or
regulations or the Tenant Improvements Plans.



          (vi) Following substantial completion of the Tenant Improvements, Tenant
shall have the right to submit a “final requisition” to Landlord for funding
with respect to the then remaining balances (if any) of the Tenant HVAC
Improvements Allowance and/or the Other Tenant Improvements Allowance so long
as such requisition shall meet all of the requirements for requisitions
specified in the preceding terms and conditions of Section 6(e) of this
Amendment, and provided further, as a condition to the obligation of Landlord
to fund such final requisition, Tenant shall also supply to Landlord, in form
and substance satisfactory to Landlord in all respects, in Landlord’s
reasonable discretion, the Tenant Improvements Completion Items.



          (vii) If following completion of the Tenant Improvements and the
determination by Landlord of the actual, final amounts of the Cost of Tenant
HVAC Improvements and the Cost of Other Tenant Improvements, the actual, final
Cost of Other Tenant Improvements shall be less than the amount of the Other
Tenant Improvements Allowance (any such remainder of the Other Tenant
Improvements Allowance being sometimes in this Amendment referred to as the
“Other Tenant Improvements Allowance Remainder”), then and in such event, not
later than ten (10) days after written demand shall be made therefor by Tenant
of Landlord, Landlord shall reimburse Tenant, in an amount not to exceed the
amount of the Other Tenant Improvements Allowance Remainder, for costs
includable as part of the actual, final Cost of Tenant HVAC Improvements, if
any, that exceeded the amount of the Tenant HVAC Improvements Allowance.
Notwithstanding anything to the contrary set forth elsewhere in this
Amendment, Landlord shall have no obligation whatsoever to disburse any funds
from the Tenant HVAC Improvements Allowance and/or the Other Tenant
Improvements Allowance with respect to any requisition submitted by Tenant to
Landlord for reimbursement from the same if such requisition shall not have
been submitted by Tenant to Landlord in a form complying with the requirements
of Section 6(e) of this Amendment on or before that date which is the second
(2nd) anniversary of the date of this Amendment.



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     (f) Notwithstanding anything to the contrary set forth elsewhere in this
Amendment, Landlord shall have the right, at Landlord’s sole option and at
Landlord’s sole cost and expense, to employ a construction management
supervisor in connection with the construction and/or installation by
Tenant of the Tenant Improvements. Tenant hereby acknowledges that the
construction management supervisor employed by Landlord pursuant to the terms
and conditions of this paragraph may be an affiliate of Landlord. Tenant shall
cooperate, fully and in all reasonable respects, and shall cause its agents,
employees and contractors to cooperate, fully and in all respects, with the
work of any such construction management supervisor employed by Landlord.



     (g) For purposes of this Amendment, “To Be Removed Tenant Improvements”
means those portions, items or aspects of the Tenant Improvements that Tenant
shall be required to remove from the Expanded Premises in accordance with the
terms and conditions of Section 6(g) of this Amendment on or before the
expiration date of the term of the Lease or any earlier date as of which the
term of the Lease shall terminate. Notwithstanding anything to the contrary set
forth elsewhere in this Amendment, at the time that Landlord shall give its
written consent to Tenant regarding the scope of the Tenant Improvements and
the Tenant Improvements Plans, as more particularly described in Section
6(c)(i) of this Amendment, Landlord and Tenant shall also agree in writing as
to any To Be Removed Tenant Improvements. Except for the To Be Removed
Tenant Improvements, Tenant shall have no right whatsoever pursuant to this
Amendment to remove any of the Tenant Improvements on or before the expiration
date of the term of the Lease or any earlier date as of which the term of the
Lease shall terminate. Effective as of 12:01 a.m., local time, on the day after
the expiration date of the term of this Lease or any earlier date as of which
the term of the Lease shall terminate, all of the Tenant Improvements other
than the To Be Removed Tenant Improvements shall become the property of
Landlord and title thereto shall vest in Landlord fully and in all respects.
Notwithstanding the foregoing, however, on or before the expiration date of the
term of the Lease or any earlier date as of which the term of the Lease shall
terminate, at Tenant’s sole cost and expense, (i) Tenant shall remove from the
Expanded Premises all of the To Be Removed Tenant Improvements, and (ii)
following such removal, Tenant shall restore the Expanded Premises to its
condition as existing prior to the construction and/or installation of such To
Be Removed Tenant Improvements, reasonable wear and tear and damage caused by
casualty excepted. In the event that Tenant shall fail to fulfill any of the
agreements or obligations of Tenant set forth in the preceding terms and
conditions of this paragraph, Landlord shall have the right, at Landlord’s
option, (A) to treat any of the To Be Removed Tenant Improvements not so
removed by Tenant as having been abandoned by Tenant, and/or (B) to remove and
dispose of the same at Tenant’s sole cost and expense, whereupon Tenant shall
reimburse Landlord, not later than ten (10) days after written demand shall be
made therefor by Landlord of Tenant, for all costs and expenses actually and
reasonably incurred by Landlord in connection with any such removal and/or
disposal. All of the agreements, covenants and undertakings of Tenant set forth
in Section 6(g) of this Amendment shall survive the expiration date of the term
of the Lease or any earlier date as of which the Lease shall be terminated.



     (h) Tenant hereby acknowledges and agrees that (i) Landlord has made no
representations or warranties whatsoever to Tenant with respect to the
Additional Premises, the condition of the Additional Premises, or the
condition or suitability for use by Tenant of the Expanded Premises in
connection with the business operations of Tenant during that portion of the
Initial Term commencing on the Additional Premises Occupancy Date or the
Extended Term, and (ii) Landlord has no obligation to Tenant whatsoever,
pursuant to this Amendment or otherwise, with respect to the obtaining or
maintaining during or prior to the Extended Term of any governmental
approvals, consents, licenses, permits or certificates of use or occupancy
(collectively, the “Governmental Authorizations”) other than the Landlord’s
Work Governmental Authorizations (herein defined) that shall or may be a
condition of, required or necessary for, or desired by Tenant in connection
with, the use or occupancy of the Expanded Premises by Tenant pursuant to this
Amendment and that all Governmental Authorizations other than the Landlord’s
Work Governmental Authorizations that shall or may be such a condition of or
so required, necessary or desired in connection with the use or occupancy of
the Expanded Premises by Tenant pursuant to this Amendment shall be obtained
and/or maintained by Tenant, at Tenant’s sole cost and expense. For purposes
of this Amendment, “Landlord’s Work Governmental Authorizations” means all
building permits and any other governmental approvals or certificates that
shall be required by applicable law to be obtained in connection with the
construction and/or installation of the Landlord’s Roof Work (as defined in
Section 7 of this Amendment), the Additional Landlord Work (as defined in
Section 8 of this Amendment), and the Other Work (as defined in Section 9 of
this Amendment). The obtaining of any Governmental Authorizations shall not be
a condition precedent to the commencement on the Additional Premises Occupancy
Date of the leasing of the Additional Premises by Landlord to Tenant pursuant
to this Amendment, the commencement of the Extended Term on December 1, 2004,
or the effectiveness of any of the agreements, covenants or obligations of
Tenant that pursuant to the terms and conditions of this Amendment commence on
or after the Additional Premises Occupancy Date or on or after the first (1st)
day



7









 




of the Extended Term (including, without limitation, the covenants and
obligations of Tenant set forth in this Amendment with respect to the payment
of rent), as applicable. Tenant hereby acknowledges and agrees that (A) the
Additional Premises are being leased to Tenant by Landlord in their “as is,
where is and with all defects” condition as of the Additional Premises
Occupancy Date, (B) the Existing Premises are being leased to Tenant by
Landlord in their “as is, where is and with all defects” condition as of the
first (1st) day of the Extended Term, and (C) subject to the terms and
conditions of Section 7 of this Amendment (entitled “Landlord’s Roof Work”),
Section 8 of this Amendment (entitled “Additional Landlord Work”), and Section
9 of this Amendment (entitled “Other Work”), Landlord shall have no obligation
whatsoever, pursuant to this Amendment or otherwise, to make any alterations
or improvements to or with respect to the Expanded Premises or any portion
thereof.




     Section 7. Landlord’s Roof Work.



     (a) For purposes of this Amendment, “Landlord’s Roof Work” means the
replacement of the entirety of the roof of the Building by Landlord in
accordance with the terms and conditions of Section 7 of this Amendment.
Subject to the occurrence of any event(s) of Force Majeure or any delay caused
by Tenant, Landlord shall “Substantially Complete” the Landlord’s Roof Work not
later than that date (the “Landlord’s Roof Work Substantial Completion Target
Date”) which is one hundred eighty (180) Good Weather Days (herein defined)
after the later to occur of: (i) the date of this Amendment; and (ii) the date
(the “Tenant Roof Improvements Completion Date”) as of which Tenant shall deem
all of the Tenant Improvements affecting the roof of the Building to have been
completed in all respects by Tenant in accordance with the terms and conditions
of this Amendment. For purposes of this Amendment, a “Good Weather Day” means
any day other than a day occurring during the months of January, February or
December. Tenant shall give prompt notice to Landlord of the occurrence of
the Tenant Roof Improvements Completion Date. Landlord shall commence the
construction and/or installation of the Landlord’s Roof Work as soon as
practicable (weather permitting) after receiving notice from Tenant of the
Tenant Roof Improvements Completion Date and shall thereafter diligently
prosecute the completion of the Landlord’s Roof Work (including, without
limitation, to the extent deemed practical and feasible by Landlord, in
Landlord’s reasonable judgment, on days other than Good Weather Days). For
purposes of this Amendment, the Landlord’s Roof Work shall be deemed to be
“Substantially Complete” as of the date on which the general contractor or the
architect employed by Landlord with respect to the construction and/or
installation of the Landlord’s Roof Work shall certify in writing to Landlord
that: (A) the Landlord’s Roof Work has been substantially completed in all
material respects in accordance with the approved plans and specifications
therefor; and (B) a temporary or permanent certificate of occupancy has been
issued by the governmental authority having jurisdiction with respect to the
Landlord’s Roof Work or the governmental authority having jurisdiction with
respect to the Landlord’s Roof Work has otherwise evidenced its approval of the
Landlord’s Roof Work. Landlord shall have no liability to Tenant whatsoever for
any damages that Tenant may suffer as a result thereof or in connection
therewith in the event that Landlord shall fail for any reason whatsoever to
Substantially Complete the Landlord’s Roof Work on or before the Landlord’s
Roof Work Substantial Completion Target Date other than (I) as set forth in
Section 26 of this Amendment and (II) for such damages as Tenant shall suffer
to the extent directly a result of the willful misconduct or negligence of
Landlord; provided, however, in such event, Landlord shall Substantially
Complete the Landlord’s Roof Work as soon as possible thereafter. Landlord
shall complete any portions or aspects of the Landlord’s Roof Work which shall
be incomplete as of the date of Substantial Completion of the Landlord’s Roof
Work as soon as possible thereafter. Notwithstanding anything to the contrary
set forth elsewhere in this Amendment, neither the completion nor the
Substantial Completion of the Landlord’s Roof Work or any portion thereof shall
be deemed to be a condition precedent to the commencement of the Extended Term
on the date for the same set forth in Section 2 of this Amendment, the leasing
of the Additional Premises by Landlord to Tenant commencing on and as of the
Additional Premises Occupancy Date, or to any of the agreements, covenants and
obligations of Tenant set forth in this Amendment that commence, respectively,
on or after the Additional Premises Occupancy Date or on or after the first
(1st) day of the Extended Term (including, without limitation, all such
agreements, covenants and obligations regarding the payment of rent).



     (b) The Landlord’s Roof Work shall be constructed and/or installed by
Landlord using contractors (and subcontractors, if deemed necessary by
Landlord) selected by Landlord, in Landlord’s reasonable discretion, as having
experience in connection with the construction and/or installation of
alterations and improvements similar in nature to the Landlord’s Roof Work.
The Landlord’s Roof Work shall be constructed in accordance with all applicable
federal, state and local laws, ordinances, rules and regulations. The
Landlord’s Roof Work shall be constructed and/or installed by Landlord at
Landlord’s sole risk and in a first class manner, using new materials, and
otherwise upon such terms and conditions, and in such manner, as Landlord, in
Landlord’s reasonable discretion, shall deem necessary and appropriate. All
costs and expenses incurred by Landlord in connection with the



8









 




construction and/or installation of the Landlord’s Roof Work shall be paid by
Landlord, at Landlord’s sole cost and expense.




     Section 8. Additional Landlord Work.



     (a) For purposes of this Amendment, “Additional Landlord Work” means,
collectively, the alterations and improvements to the exterior of the Expanded
Premises to be constructed and/or installed by Landlord in accordance with the
terms and conditions of Section 8 of this Amendment, as more particularly
described in Exhibit C attached to and hereby made a part of this Amendment.
Subject to the occurrence of any event(s) of Force Majeure and any delay caused
by Tenant, Landlord shall “Substantially Complete” the Additional Landlord Work
not later than that date (the “Additional Landlord Work Substantial Completion
Target Date”) which is the later to occur of: (i) that date which is the first
(1st) anniversary of the date of this Amendment; and (ii) that date which is
one hundred eighty (180) days after the Tenant Improvements Completion Date.
Tenant shall give prompt notice of the Tenant Improvements Completion Date to
Landlord. For purposes of this Amendment, the Additional Landlord Work shall be
deemed to be “Substantially Complete” as of the date on which the general
contractor or the architect employed by Landlord with respect to the
construction and/or installation of the Additional Landlord Work shall
reasonably certify in writing to Landlord that: (A) the Additional Landlord
Work has been substantially completed in all material respects and in
accordance with all approved plans and specifications therefor (if any); and
(B) a temporary or permanent certificate of occupancy has been issued by the
governmental authority having jurisdiction with respect to the Additional
Landlord Work or the governmental authority having jurisdiction with respect to
the Additional Landlord Work has otherwise evidenced its approval of the
Additional Landlord Work. Landlord shall have no liability to Tenant whatsoever
for any damages that Tenant may suffer as a result thereof or in connection
therewith in the event that Landlord shall fail for any reason whatsoever to
Substantially Complete the Additional Landlord Work on or before the Additional
Landlord Work Substantial Completion Target Date other than (I) as set forth in
Section 26 of this Amendment and (II) for such damages as Tenant shall suffer
to the extent directly as a result of the willful misconduct or negligence of
Landlord; provided, however, in such event, Landlord shall Substantially
Complete the Additional Landlord Work as soon as possible thereafter. Landlord
shall complete any portions or aspects of the Additional Landlord Work which
shall be incomplete as of the date of Substantial Completion of the Additional
Landlord’s Work as soon as possible thereafter. Notwithstanding anything to
the contrary set forth elsewhere in this Amendment, neither the completion nor
the Substantial Completion of the Additional Landlord Work or any portion
thereof shall be deemed to be a condition precedent to the commencement of the
Extended Term on the date for the same set forth in Section 2 of this
Amendment, the leasing of the Additional Premises by Tenant to Landlord
commencing on and as of the Additional Premises Occupancy Date, or to any of
the agreements, covenants and obligations of Tenant set forth in this Amendment
that commence, respectively, on or after the Additional Premises Occupancy Date
or on or after the first (1st) day of the Extended Term (including, without
limitation, all such agreements, covenants and obligations regarding the
payment of rent).



     (b) The Additional Landlord Work shall be constructed and/or installed by
Landlord using contractors (and subcontractors, if deemed necessary by
Landlord) selected by Landlord, in Landlord’s reasonable discretion, as having
experience in connection with the construction and/or instillation of
alterations and improvements similar in nature to the Additional Landlord Work.
The Additional Landlord Work shall be constructed and/or installed in
accordance with all applicable federal, state and local laws, ordinances, rules
and regulations. The Additional Landlord Work shall be constructed and/or
installed by Landlord at Landlord’s sole risk, in a first class manner, using
new materials, and otherwise upon such terms and conditions, and in such
manner, as Landlord, in Landlord’s reasonable discretion, shall deem necessary
and appropriate. All costs and expenses incurred by Landlord in connection
with the construction and/or installation of the Additional Landlord Work shall
be paid by Landlord, at Landlord’s sole cost and expense.



     (c) Landlord and Tenant hereby acknowledge that some of the Additional
Landlord Work and/or the Other Work (as defined in Section 9 of this Amendment)
may be performed by Landlord within the Expanded Premises at times during which
Tenant shall be in occupancy of the Expanded Premises. Accordingly, Tenant
hereby agrees that subject to Tenant’s Security Requirements (as defined in
Section 8(d) of this Amendment), Landlord and the agents, employees and
contractors of Landlord shall have the right to enter upon the Expanded
Premises at any reasonable time or times (which may include, without
limitation, weekends and hours other than the normal business hours of Tenant),
upon reasonable prior oral or written notice for the purposes of performing the
construction and/or installation of the Additional Landlord Work and/or the
Other Work. In such regard, Landlord shall have no liability whatsoever to
Tenant for any damages Tenant may suffer as a result of such entry and the
performance of the Additional Landlord Work and/or the Other Work by Landlord
or any of its agents, employees or



9









 




contractors or for any interference with, or disruption to, the normal business
operations of Tenant resulting therefrom other than any such damages that
Tenant may suffer to the extent directly due to the negligence or willful
misconduct of Landlord or any of the agents, employees or contractors of
Landlord. Notwithstanding the preceding sentence, Landlord shall cooperate, and
shall cause its agents, employees and contractors, to cooperate with Tenant in
all reasonable respects so as to minimize any interference with or disruption
to the normal business operations of Tenant being conducted at the Expanded
Premises as a result of the construction and/or installation of the Additional
Landlord Work and/or the Other Work within the Expanded Premises. Tenant shall
cooperate, fully and in all respects, and shall cause its agents, employees and
contractors to cooperate, fully and in all respects, with Landlord and the
agents, employees and contractors of Landlord in the Expanded Premises from to
time in order to complete the construction and/or installation of the
Additional Landlord Work and/or the Other Work. In furtherance of the
foregoing, at Tenant’s sole cost and expense, upon reasonable request made by
Landlord or any of the agents, employees or contractors of Landlord at any time
or times so as to facilitate the timely completion by Landlord of the
Additional Landlord Work and/or the Other Work, Tenant shall move, remove or
relocate, or cause to be moved, removed or relocated, to, from or within the
Expanded Premises, any of Tenant’s equipment machinery, furniture, furnishings,
inventory or other personal property that Landlord or any agent, employee or
contractor of Landlord may seek to have so moved, removed or relocated.
Notwithstanding anything to the contrary set forth elsewhere in this Amendment,
in connection with the performance and completion by Landlord and the agents,
employees and contractors of Landlord of the Additional Landlord Work and/or
the Other Work, (i) Landlord, any construction management supervisor of
Landlord, and the employees of Landlord shall comply at all times with all
applicable Tenant’s Security Requirements and (ii) Landlord shall use
commercially reasonable efforts to cause its agents and contractors to comply
at all times with all applicable Tenant’s Security Requirements.




     (d) For purposes of this Amendment, “Tenant’s Security Requirements”
means, collectively, the conditions that shall be imposed upon Landlord and
the agents, employees and contractors of Landlord in the Expanded Premises for
the purposes of performing the Additional Landlord Work and/or the Other Work
so as to address security concerns of Tenant, as approved in writing by
Landlord and Tenant in accordance with the terms and conditions of this
Amendment. Not later than that date which is thirty (30) days after the date
of this Amendment, Landlord and Tenant shall meet with the architect to be
employed by Landlord in connection with the design of the Additional Landlord
Work and/or the Other Work to discuss those conditions which Tenant believes
Tenant will need to impose upon Landlord and the agents, employees, and
contractors of Landlord in the Expanded Premises for the purposes of
performing portions of the Additional Landlord Work and the Other Work that
affect the interior of the Expanded Premises so as to address security
concerns of Tenant. Landlord and Tenant shall use commercially reasonable
efforts, in good faith, to agree in writing in all respects not later than
that date which is sixty (60) days after the date of this Amendment upon the
scope and specifications of the Tenant’s Security Requirements.
Notwithstanding the foregoing, the scope and specifications of the Tenant’s
Security Requirements shall be subject to the prior written approval of
Landlord in all respects (which prior written approval of Landlord shall not
be unreasonably withheld, conditioned or delayed by Landlord). Notwithstanding
anything to the contrary set forth elsewhere in this Amendment: (i) Landlord
shall have no obligation whatsoever to commence the construction and/or
installation of any of the Additional Landlord Work or any of the Other Work
in accordance with the terms and conditions of this Amendment until such time
as Landlord and Tenant shall have agreed, in all respects, upon the final
scope and specifications of the Tenant’s Security Requirements; and (ii) if,
notwithstanding the commercially reasonable efforts of Landlord and Tenant in
such regard, Landlord and Tenant shall fail to agree upon the final scope and
specifications of the Tenant’s Security Requirements on or before that date
which is sixty (60) days after the date of this Amendment, then and in such
event, each of the Additional Landlord’s Work Substantial Completion Target
Date, the Windows/Doors Work Substantial Completion Target Date and the last
date by which Landlord is to complete the installation of the New HVAC Unit in
accordance with the terms and conditions of Section 9(b) of this Amendment
shall be extended by the number of days in that period of time commencing on
that date which is sixty (60) days after the date of this Amendment and ending
on the day before the date as of which Landlord and Tenant shall agree upon
the final scope and specifications of the Tenant’s Security Requirements.
Furthermore, notwithstanding anything to the contrary set forth elsewhere in
this Amendment and the commercially reasonable efforts of Landlord and Tenant
in such regard, in the event that for any reason whatsoever on or before that
date which is the second (2nd) anniversary of the date of this Amendment
Landlord and Tenant shall fail to agree upon the final scope and
specifications of the Tenant’s Security Requirements, then and in such event,
Landlord shall have no further obligation whatsoever pursuant to this
Amendment to construct and/or install the Additional Landlord Work or the
Other Work.



10









 





     Section 9. Other Work.



     (a) For purposes of this Amendment, “Windows/Doors Work” means,
collectively, the alterations and improvements to the Expanded Premises to be
constructed and/or installed by Landlord in accordance with the terms and
conditions of Section 9(a) of this Amendment, as more particularly described in
Exhibit D attached to and hereby made a part of this Amendment. Subject to the
occurrence of any event(s) of Force Majeure and any delay caused by Tenant,
Landlord shall “Substantially Complete” the Windows/Doors Work not later than
that date (the “Windows/Doors Work Substantial Completion Target Date”) which
is the later to occur of (i) that date which is one hundred eighty (180) days
after the date of this Amendment and (ii) the date as of which Landlord and
Tenant shall agree in writing upon the scope and specifications of the Tenant’s
Security Requirements. For purposes of this Amendment, the Windows/Doors Work
shall be deemed to be “Substantially Complete” as of the date on which the
general contractor or the architect employed by Landlord with respect to the
construction and/or installation of the Windows/Doors Work shall certify in
writing to Landlord that: (A) the Windows/Doors Work has been substantially
completed in all material respects in accordance with the approved plans and
specifications therefor, if any; and (B) a temporary or permanent certificate
of occupancy has been issued by the governmental authority having jurisdiction
with respect to the Windows/Doors Work or the governmental authority having
jurisdiction with respect to the Windows/Doors Work has otherwise evidenced its
approval of the Windows/Doors Work. Landlord shall have no liability to Tenant
whatsoever for any damages that Tenant may suffer as a result thereof or in
connection therewith in the event that Landlord shall fail for any reason
whatsoever to Substantially Complete the Windows/Doors Work on or before the
Windows/Doors Work Substantial Completion Target Date other than (I) as set
forth in Section 26 of this Amendment and (II) for such damages as Tenant shall
suffer to the extent directly a result of the willful misconduct or negligence
of Landlord; provided, however, in such event, Landlord shall Substantially
Complete the Windows/Doors Work as soon as possible thereafter. Landlord
shall complete any portions or aspects of the Windows/Doors Work which shall be
incomplete as of the date of Substantial Completion of the Windows/Doors Work
as soon as possible thereafter. The Windows/Doors Work shall be constructed
and/or installed by Landlord using contractors (and subcontractors, if deemed
necessary by Landlord) selected by Landlord, in Landlord’s reasonable
discretion, as having experience in connection with the construction and/or
installation of alterations and improvements similar in nature to the
Windows/Doors Work. The Windows/Doors Work shall be constructed and/or
installed by Landlord, at Landlord’s sole risk, in a first class manner, using
new materials, and otherwise upon such terms and conditions, and in such
manner, as Landlord, in Landlord’s reasonable discretion, shall deem necessary
and appropriate. The Windows/Doors Work shall be constructed and/or
installed in accordance with all applicable federal, state and local laws,
ordinances, rules and regulations. All costs and expenses incurred by
Landlord in connection with the construction and/or installation of the
Windows/Doors Work shall be paid by Landlord, at Landlord’s sole cost and
expense.



     (b) For purposes of this Amendment, “Designated HVAC Unit” means
that certain heating, ventilating and air conditioning unit located within the
Expanded Premises as of the date of this Amendment manufactured by Carrier,
having a model number of 50QD008610QC and a serial number of 3886G89111. For
purposes of this Amendment, “New HVAC Unit” means the new heating, ventilating
and air conditioning unit of comparable quality and capacity to the Designated
HVAC Unit that in accordance with the terms and conditions of Section 9(b) of
this Amendment is purchased by Landlord and installed in the Expanded Premises
to replace the Designated HVAC Unit. Not later than that date which is sixty
(60) days after the date of this Amendment, at Landlord’s sole cost and
expense, Landlord shall purchase a New HVAC Unit and install the same within
the Expanded Premises so as to replace the Designated HVAC Unit.



     (c) For purposes of this Amendment, “Other Work” means, collectively, the
Windows/Doors Work and the replacement of the Designated HVAC Unit with the New
HVAC Unit that is described in Section 9(b) of this Amendment.
Notwithstanding anything to the contrary set forth elsewhere in this Amendment,
neither the completion nor the Substantial Completion of the Other Work or any
portion thereof shall be deemed to be a condition precedent to the commencement
of the Extended Term on the date for the same set forth in Section 2 of this
Amendment, the leasing of the Additional Premises by Landlord to Tenant
commencing on and as of the Additional Premises Occupancy Date, or any of the
agreements, covenants and obligations of Tenant set forth in this Amendment
that commence, respectively, on or after the Additional Premises Occupancy Date
and on or after the first (1st) day of the Extended Term (including, without
limitation, all such agreements, covenants and obligations regarding the
payment of rent).




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     Section 10. Landlord Repair HVAC Units.



     (a) For purposes of this Amendment, “Landlord Repair HVAC Units” means,
collectively, the heating, ventilating and air conditioning units serving the
Expanded Premises located on the roof of the Building that are described in
Exhibit E attached to and hereby made a part of this Amendment. For purposes
of this Amendment, “Landlord Repair HVAC Unit” means, as the context shall
require, one of the Landlord Repair HVAC Units. For purposes of this
Amendment, “Major HVAC Unit Repair” means the repair or replacement, as
applicable, of any of the following components or associated materials
contained in, or being a part of, any Landlord Repair HVAC Unit: (i)
plumbing; (ii) piping (other than refrigerant piping); (iii) switches; (iv)
non-moving parts; (v) structural parts; (vi) insulation; (vii) compressors;
(viii) heat exchangers; (ix) coils; (x) unit housing; (xi) internal framing;
(xii) metal fabrications; (xiii) disconnect switches; and (xiv) circuit
breakers. For purposes of this Amendment, “Landlord Repair HVAC Units
Period” means that period of time commencing on the Additional Premises
Occupancy Date and ending on the last day of the Extended Term.



     (b) If at any time during the Landlord Repair HVAC Units Period Tenant
shall determine that (i) any Landlord Repair HVAC Unit shall require
replacement, in its entirety, or (ii) a Major HVAC Unit Repair shall be
required to be made with respect to any Landlord Repair HVAC Unit, then and in
either of such events, Tenant shall have the right, at Tenant’s option, to give
notice thereof to Landlord (a “Major Repair/Replacement Notice”).
Notwithstanding anything to the contrary set forth elsewhere in this Amendment
or in the Existing Lease (but subject to the terms and conditions of Section 10
of this Amendment), if at any time during the Landlord Repair HVAC Units Period
Landlord shall receive a Major Repair/Replacement Notice and Landlord and
Tenant shall determine, pursuant to mutual written agreement in good faith (or,
if Landlord and Tenant are unable to so agree within thirty (30) days after the
date of Landlord’s receipt of such Major Repair/Replacement Notice, Corporate
Cooling & Controls, LLC or another heating, ventilating and air conditioning
contractor mutually agreeable to Landlord and Tenant shall determine) that (A)
any Landlord Repair HVAC Unit shall require replacement, in its entirety, or
(B) a Major HVAC Unit Repair shall be required to be made with respect to any
Landlord Repair HVAC Unit, then and in any such event, not later than sixty
(60) days after such determination shall have been made, Landlord shall, as
applicable, (I) purchase a new heating, ventilating and air conditioning unit
of comparable quality and capacity to the Landlord Repair HVAC Unit that is to
be replaced and install the same (together with, if and as determined to be
necessary or applicable, new ductwork to serve such Landlord Repair HVAC Unit)
so as to provide service to the Expanded Premises, or (II) promptly undertake,
perform and complete such Major HVAC Unit Repair at Landlord’s sole risk and in
a first class manner consistent with industry standards. Subject to the
penultimate and last sentences of this paragraph, all costs and expenses
incurred by Landlord in connection with the replacement of any Landlord Repair
HVAC Unit or the performance of a Major HVAC Unit Repair in accordance with the
terms and conditions of Section 10 of this Amendment shall be paid by Landlord,
at Landlord’s sole cost and expense. Notwithstanding anything to the contrary
set forth in the preceding terms and conditions of Section 10 of this
Amendment: (1) No repair or replacement made by Landlord with respect to any
Landlord Repair HVAC Unit shall be deemed to be a “Major HVAC Unit Repair” for
purposes of this paragraph unless made by Landlord subsequent to a Major
Repair/Replacement Notice and pursuant to the mutual written agreement of
Landlord and Tenant (or, as provided in the preceding terms and conditions of
this paragraph, the determination of Corporate Cooling & Controls, LLC or
another contractor) that such work is necessary; (2) The terms and conditions
of Section 10 of this Amendment shall obligate Landlord to make only one (1)
Major HVAC Unit Repair or one (1) replacement to each of the Landlord Repair
HVAC Units during the Landlord Repair HVAC Units Period and, in the event that
any Landlord Repair HVAC Unit shall require one or more additional Major HVAC
Unit Repairs or replacements subsequent to the completion by Landlord, with
respect to such Landlord Repair HVAC Unit, of a Major HVAC Unit Repair or a
replacement, all such additional repairs or replacements with respect to the
Landlord Repair HVAC Unit in question shall be governed by the terms and
conditions of the Existing Lease as if the terms and conditions of Section 10
of this Amendment had never been incorporated and made a part of this
Amendment; and (3) The terms and conditions of Section 10 of this Amendment
shall be applicable only during the Landlord Repair HVAC Units Period and shall
not apply to any renewal terms or extension periods of the term of the Lease
occurring after the last day of the Landlord Repair HVAC Units Period.
Notwithstanding the foregoing terms and conditions of this paragraph, in the
event that in accordance with the terms and conditions of this paragraph
Landlord shall become obligated to replace any Landlord Repair HVAC Unit in its
entirety, Tenant shall have the right, at Tenant’s option (to be exercised by
giving notice thereof to Landlord as part of the applicable Major
Repair/Replacement Notice), to require Landlord to purchase and install the new
heating, ventilating and air conditioning unit specified by Tenant in such
notice to be of superior quality and capacity to the Landlord Repair HVAC Unit
that is to be replaced. In the event that in accordance with the terms and
conditions of the preceding sentence Tenant shall require Landlord to



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purchase and install any new heating, ventilating and air conditioning unit of
superior quality and/or capacity, then and in any such event, not later than
ten (10) days after written demand shall be made therefor by Landlord of
Tenant, Tenant shall reimburse Landlord for that portion of the cost of
purchase and installation of such new heating, ventilating and air conditioning
unit as shall exceed the cost that would have been incurred by Landlord in
connection with the purchase and installation of a new heating, ventilating and
air conditioning unit of comparable quality and capacity to the Landlord Repair
HVAC Unit that was replaced.




     Section 11. Additional Security Deposit Funds.



     Not later than that date which is ten (10) days after the date of this
Amendment, Tenant shall deposit with Landlord, in cash, as additional monies
intended to be a part of the Security Deposit (as such term is defined in the
Existing Lease) the sum of $12,144.00.



     Section 12. Reserved Parking.



     Notwithstanding anything to the contrary set forth elsewhere in the
Lease, Tenant shall have the exclusive right to use the two (2) parking spaces
shown on Exhibit F attached to and hereby made a part of this Amendment for
the parking of automobiles owned or leased by visitors to the Premises.



     Section 13. Right of First Offer.



     (a) For purposes of this Amendment, “Buildings” means, collectively, all
of the following buildings located in Columbia, Howard County, Maryland that
are as of the date of this Amendment owned by Landlord — 6410 Dobbin Road, 6420
Dobbin Road, 6430 Dobbin Road, 6440 Dobbin Road, 6450 Dobbin Road, 6460 Dobbin
Road and 6470 Dobbin Road. For purposes of this Amendment, “AV Imports Space”
means all of that space located in the Building known as 6450 Dobbin Road,
comprised of approximately 12,700 square feet of space, in the aggregate, that
is as of the date of this Amendment subject to a pre-existing lease pursuant to
which such space is leased by Landlord to AV Imports, Inc., a Maryland
corporation. For purposes of this Amendment, “Signs by Tomorrow Space” means
all of the space at the Building known as 6460 Dobbin Road, comprising
approximately 7,297 square feet of space, that is as of the date of this
Amendment subject to a pre-existing lease pursuant to which Landlord leases
such space to Signs by Tomorrow, Inc., a Maryland corporation. For purposes of
this Amendment, “Monumental Life Space” means all of that space located in the
Building known as 6460 Dobbin Road, comprising approximately 3,250 square feet
of space, that is as of the date of this Amendment subject to a pre-existing
lease pursuant to which Landlord leases such space to Monumental Life Insurance
Company, a Maryland corporation. For purposes of this Amendment, “Right of
First Offer Period” means that period of time commencing on the date of this
Amendment and ending on January 31, 2008.



     (b) During the Right of First Offer Period, but subject to and in
accordance with, the terms and conditions of Section 13 of this Amendment,
Tenant shall have a continuing right of first offer as to all of the Offer
Space (herein defined). If at any time during the Right of First Offer Period
Landlord shall become aware of the availability, or impending availability, for
lease of space in any of the Buildings (any such space being sometimes
hereinafter referred to as “Offer Space”), Landlord shall notify Tenant thereof
(a “Landlord Notice”).



     (c) The Landlord Notice shall describe such Offer Space, the date as of
which such Offer Space shall be available for lease, and the terms and
conditions under which Landlord is willing to lease such Offer Space to Tenant
for a term (the “Offer Space Lease Term”) expiring on the last day of the
Extended Term; provided, however, but subject to the right of Tenant to have
the Minimum Monthly Rent (and annual escalations thereof) determined in
accordance with the terms and conditions of Section 13(d) of this Amendment,
the Minimum Monthly Rent to be paid by Tenant to Landlord for such Offer Space
with respect to the Offer Space Lease Term shall be paid at the rate
(including, without limitation, annual escalations thereof) determined by
Landlord, in Landlord’s reasonable discretion, to be the “market” Minimum
Monthly Rent paid by tenants similar to Tenant to landlords similar to Landlord
for space similar to such Offer Space in buildings similar to the Buildings in
markets similar to the market in which the Buildings are located and otherwise
on terms and conditions (including, without limitation, terms and conditions as
pertaining to any allowances typically extended by landlords for the
construction of alterations and improvements by tenants of the premises demised
to them) similar to the terms and conditions described in the Landlord Notice.
In the event that Tenant shall desire to lease such Offer Space from Landlord
for the Offer Space Lease Term upon the terms and conditions of set forth in
the Landlord Notice, then and in such event (i) Tenant shall have five (5)
business days from the date of the Landlord Notice to give notice (the “Tenant
Notice”) to Landlord of Tenant’s intention in such regard, and (ii) not later
than twenty (20) days after delivery by Landlord to Tenant of a draft of an
amendment to the Lease (or at the option of Landlord, a new lease pertaining



13









 




only to such Offer Space) pursuant to which, if executed and delivered by
Landlord and Tenant, Tenant would lease such Offer Space from Landlord for the
Offer Space Lease Term upon the terms and conditions set forth in the Landlord
Notice (subject, if applicable, to the determination of the Minimum Monthly
Rent in accordance with the terms and conditions of Section 13(d) of this
Amendment), Tenant shall enter into such amendment to the Lease or such new
lease with Landlord so as to lease such Offer Space from Landlord upon such
terms and conditions. If Tenant shall fail to give a Tenant Notice to Landlord
within such period of five (5) business days or Tenant shall fail to enter into
such an amendment to the Lease or new lease with Landlord within such period of
twenty (20) days, then and in either of such events, the rights granted by
Landlord to Tenant pursuant to Section 13 of this Lease with respect to such
Offer Space shall expire and Landlord shall have the right to enter into a
lease with any third party with regard to such Offer Space on any terms and
conditions upon which Landlord and such third party shall agree (including,
without limitation, any terms and conditions that are similar or dissimilar to
the terms and conditions set forth in the Landlord Notice).




     (d) Subject to, and in accordance with, the terms and conditions of
Section 13(d) of this Amendment, Tenant shall have the right, at Tenant’s
option, to be exercised by giving notice thereof to Landlord as a part of the
Tenant Notice, to have the Minimum Monthly Rent (and all annual escalations
thereof) to be paid by Tenant to Landlord with respect to any such Offer Space
determined by appraisal in the manner set forth in the succeeding terms and
conditions of Section 13(d) of this Amendment if Tenant, in good faith, shall
not agree with the determination of Landlord as to such Minimum Monthly Rent
set forth in the Landlord Notice. If Tenant shall elect to have the Minimum
Monthly Rent (and annual escalations thereof) with respect to such Offer Space
determined by appraisal, then and in such event, during that period of five
(5) days commencing on the date of the Tenant Notice, Landlord and Tenant
shall negotiate in good faith to determine the Minimum Monthly Rent (and all
annual escalations thereof) to be paid by Tenant to Landlord with regard to
such Offer Space. If agreement cannot be reached within such period of five
(5) days, then and no later than ten (10) days after the date of the Tenant
Notice, Tenant shall make a reasonable determination of the monthly fair
market rental for such Offer Space with regard to the period of time in
question (including applicable annual escalations) and shall submit such
determination, in writing, to arbitration (together with the determination of
Landlord in such regard set forth in the Landlord Notice) in accordance with
the following provisions:



          (i) No later than that date which is twelve (12) days after the date of
the Tenant Notice, Landlord and Tenant shall each select an office/flex space
leasing broker to act as an arbitrator and the two arbitrators so appointed
shall no later than fifteen (15) days after the date of the Tenant Notice,
select a third mutually acceptable office/flex space leasing broker to act as
a third arbitrator;



          (ii) The three arbitrators, acting by a majority, shall no later than
twenty-five (25) days after the date of the Tenant Notice, determine the actual
monthly fair market rental for such Offer Space (and all annual escalations
thereof). The decision of a majority of the arbitrators shall be binding on
Landlord and Tenant. Subject to the terms and conditions of the last paragraph
of Section 13(d) of this Amendment, the monthly fair market rental
determination of Landlord (as set forth in the Landlord Notice) or Tenant (as
set forth in the written submission of Tenant described in the preceding terms
and conditions of Section 13(d) of this Amendment) which is closest to the
monthly fair market rental as determined by the arbitrators shall be the
Minimum Monthly Rent with respect to such Offer Space;



          (iii) If either of Landlord or Tenant fails to appoint an arbitrator
within the period of time required in Section 13(d) of this Amendment, then
and in such event (but subject to the terms and conditions of the last
paragraph of Section 13(d) of this Amendment), the arbitrator timely appointed
shall determine the Minimum Monthly Rent with respect to such Offer Space; and



          (iv) The entire cost of such arbitration shall be paid by the party to
this Amendment whose monthly fair market rental submission is not selected.


Notwithstanding anything to the contrary set forth in the preceding terms and
conditions of Section 13(d) of this Amendment, under no circumstances shall
the Minimum Monthly Rent required to be paid Tenant to Landlord from time to
time with respect to any such Offer Space, expressed on a per square foot per
annum basis, be less than the Minimum Monthly Rent required to be paid by
Tenant to Landlord with respect to the Expanded Premises pursuant to this
Lease for corresponding time periods, expressed on a per square foot per annum
basis.




14









 





     (e) Notwithstanding the terms and conditions of Section 13(c) of this
Amendment, in the event that the Offer Space shall be the AV Imports Space,
the Signs by Tomorrow Space, and/or the Monumental Life Space, then and in any
such event:



          (i) The terms and conditions pursuant to which Landlord shall be willing to
lease such Offer
Space to Tenant shall include an offer by Landlord to Tenant to make available
to Tenant an allowance for the making by Tenant of alterations and/or
improvements to such space in that amount equal to the product of (A) the
Applicable AV/Signs/Monumental Allowance Rate (herein defined) and (B) the
number of square feet comprising the Offer Space in question. For purposes of
this Amendment, “Applicable AV/Signs/Monumental Allowance Rate means: (I)
$15.00 per square foot if the Offer Space Lease Term shall be five (5) years
or longer in duration; (II) $12.00 per square foot if the Offer Space Lease
Term shall be four (4) years or longer in duration but less than five (5)
years in duration; (III) $9.00 per square foot if the Offer Space Lease Term
shall be three (3) years or longer in duration but less than four (4) years in
duration; and (IV) $0.00 per square foot if the Offer Space Lease Term shall
be less than three (3) years in duration.



          (ii) The payments of Minimum Monthly Rent that shall be required to be
paid by Tenant to Landlord for each of the AV Imports Space, the Signs by
Tomorrow Space, and/or the Monumental Life Space, as applicable, with respect
to the first (1st) year of the applicable Offer Space Lease Term shall be
equal to 1/12 of the product of (A) the number of square feet comprising such
Offer Space and (B) the rate set forth in the chart below that applies to the
period of time during which the first (1st) day of the applicable Offer Space
Lease Term shall occur.



	 	 	 	 	 
	 	 	Monthly Minimum Rent Per Square
	 	 	Foot Per Annum Payable With Respect
	Period of Time During Which First (1st) Day of	 	to First (1st) Year of Applicable Offer
	Applicable Offer Space Lease Term Occurs
	 	Space Lease Term

	That period of time commencing on
the date of this Amendment and
ending on March 31, 2005
	 	$	12.70	 
	That period of time commencing on
April 1, 2005 and ending on January
31, 2006
	 	$	13.07	 
	That period of time commencing on
February 1, 2006 and ending on
January 31, 2007
	 	$	13.40	 
	That period of time commencing on
February 1, 2007 and ending on
January 31, 2008
	 	$	13.80	 
	That period of time commencing on
February 1, 2008 and ending on
January 31, 2009
	 	$	14.15	 
	That period of time commencing on
February 1, 2009 and ending on
January 31, 2010
	 	$	14.50	 
	That period of time commencing on
February 1, 2010 and ending on
January 31, 2011
	 	$	14.86	 







          (iii) The payments of Minimum Monthly Rent that shall be required to be
paid by Tenant to Landlord for each of the AV Imports Space, the Signs by
Tomorrow Space and/or the Monumental Life Space, as applicable, with respect
to the second (2nd) and each succeeding year of the applicable Offer Space
Lease Term shall be equal to l/12th of the product of (A) the number of square
feet comprising such Offer Space and (B) that rate equal to the product of (I)
1.025 and (II) the Minimum Monthly Rent required to have been paid by Tenant
to Landlord for such Offer Space with respect to the immediately preceding
year of the applicable Offer Space Lease Term, expressed on a per square foot
per annum basis.



          (iv) Except to the extent specified to the contrary in the preceding terms
and conditions of Section 13(e) of this Amendment, all of the terms and
conditions of Section 13 of this Amendment governing the leasing by Landlord to
Tenant of Offer Space shall apply to the leasing by Landlord to Tenant of the
AV Imports Space, the Signs by Tomorrow Space and/or the Monument Life Space in
accordance with this Amendment.



     (f) The rights extended in Section 13 of this Amendment to Tenant by
Landlord are exclusively
granted by Landlord to the original Tenant named under the Lease, Martek
Biosciences Corporation, and shall not



15









 




inure to the benefit of or be exercisable by any assignee of the original
Tenant named under the Lease or any other party. Notwithstanding the foregoing,
Tenant’s rights under Section 13 of this Amendment shall: (i) terminate
automatically as of the date of a default (which continues after the giving of
any required notice and the expiration of any applicable cure period) by Tenant
with respect to any of Tenant’s obligations under the Lease; (ii) be subject
and subordinate, in all respects and at all times, to any and all Preferential
Rights (herein defined) applicable to such Offer Space or any portion thereof,
or to any other space in the Building of which such Offer Space or any portion
thereof shall be a part, extended by Landlord (or any predecessor-in-interest
to Landlord) prior to the date of this Lease for the benefit of any existing or
future tenant or occupant of such Building; and (iii) shall not be effective
following the last day of the Right of First Offer Period and shall not apply
to the Additional Term (as defined in Section 3 of the Third Amendment). For
purposes of Section 13 of this Amendment, “Preferential Rights” means all
rights of renewal, rights of first refusal, rights of first offer, rights to
expansion space or any other rights or agreements similar or dissimilar to the
foregoing concerning the future or potential leasing of Offer Space or any
portion thereof or any other space in the Building of which Offer Space or any
portion thereof shall be a part.




     Section 14. Amendment to Section 51 of Existing Lease Concerning Renewal
Option.



     (a) Effective as of the date of this Amendment, Section 51 of the Existing
Lease (entitled “Renewal Option”), as set forth in Section 3 of the Third
Amendment, is hereby modified as follows: (i) The Additional Term (as therein
defined) shall commence on February 1, 2011 and shall end on January 31, 2016;
(ii) The words “ninety- five percent (95%) of” in clause (ii) are hereby deleted
in their entireties; and (iii) The first (1st) sentence of the second (2nd)
full paragraph is hereby deleted in its entirety and the following shall be
inserted in lieu thereof: “Tenant shall be deemed to have waived the right to
exercise this renewal option unless Tenant shall have notified Landlord in
writing of Tenant’s election to renew (the “Renewal Notice”) on or before July
31, 2010.”



     (b) Subject to the terms and conditions of Section 14(a) of this
Amendment, Landlord and Tenant hereby acknowledge and agree that Section 51 of
the Existing Lease (entitled “Renewal Option”), as reflected in Section 3 of
the Third Amendment, remains in full force and effect in all respects.



     Section 15. Deletion of Certain Terms and Conditions of Existing Lease.



     Effective as of the date of this Amendment, the following terms and
conditions of the Existing Lease are hereby deleted in their entireties and
shall be of no further force or effect whatsoever:



     (a) Section 49 of the Existing Lease (entitled “Expansion Option”), as set
forth in Section 3 of the Third Amendment; and



     (b) Section 50 of the Existing Lease (entitled “Right of First Offer”), as
set forth in Section 3 of the Third Amendment.


Tenant hereby represents and warrants to Landlord that at no time on or before
the date of this Amendment did Tenant exercise any of the rights granted by
Landlord to Tenant pursuant to Section 49 of the Existing Lease (entitled
“Expansion Option”) or Section 50 of the Existing Lease (entitled “Right of
First Offer”).




     Section 16. Inapplicability to Certain Portion of Initial Term and to
Extended Term of Certain Terms and Conditions of Existing Lease.



     The following terms and conditions of the Existing Lease shall be
inapplicable to the leasing by Landlord to Tenant of the Existing Premises with
respect to the Extended Term and of the Additional Premises with respect to
that portion of the Initial Term commencing on the Additional Premises
Occupancy Date and the Extended Term, even though such terms and conditions
shall remain applicable, as the context shall require, to the leasing by
Landlord to Tenant of the Existing Premises pursuant to the Existing Lease with
respect to the Initial Term:



     (a) Sections 5B and 5C of the Original Lease;



     (b) Article 45 of the Original Lease;



     (c) Exhibit C of the Original Lease;



     (d) Section 7 of the First Amendment;



     (e) Section 8 of the Second Amendment;



     (f) Section 8 of the Third Amendment; and



     (g) Sections 2 and 8 of the Fourth Amendment.



16









 





     Section 17. Representations and Warranties of Tenant.



     Tenant hereby represents and warrants to Landlord that on and as of the
date of this Amendment: (a) Tenant is a corporation duly formed and validly
existing, in good standing, under the laws of the State of Delaware; (b) Tenant
is registered and duly authorized to do business in the State of Maryland as a
foreign corporation; (c) The officer of Tenant executing and delivering this
Amendment on behalf of Tenant is authorized to execute and deliver this
Amendment on behalf of Tenant, and when so executed and delivered by such
officer, this Amendment shall be binding upon and enforceable against Tenant in
all respects; (d) Tenant is not in default with respect to any of the
obligations of Tenant set forth in the Existing Lease; (e) To Tenant’s
knowledge, Landlord has fulfilled all of the obligations of Landlord to Tenant
set forth in the Existing Lease that were required to be fulfilled by Landlord
prior to the date of this Amendment; and (f) To Tenant’s knowledge, Landlord is
not in default with respect to any of the obligations of Landlord set forth in
the Existing Lease. Nothing set forth in the preceding terms and conditions of
Section 17 of this Amendment shall be construed so as to relieve Landlord of
any of the agreements, covenants or obligations of Landlord set forth in this
Amendment.



     Section 18. Brokers.



     Landlord hereby represents and warrants to Tenant that it has dealt with
no real estate agents or brokers in connection with the negotiation, execution
and delivery of this Amendment other than Manekin, LLC (the “Broker”) and that
no brokerage fees or commissions are payable to any real estate agent or
broker in connection with the negotiation, execution and delivery of this
Amendment other than to the Broker. Tenant hereby represents and warrants to
Landlord that it has dealt with no real estate agents or brokers in connection
with the negotiation, execution and delivery of this Amendment other than the
Broker and that no brokerage fees or commissions are payable to any real
estate agent or broker in connection with the negotiation, execution and
delivery of this Amendment other than to the Broker. Tenant shall indemnify
and hold Landlord harmless from and against any and all claims, demands,
losses, liabilities, costs or expenses (including, without limitation,
reasonable attorneys’ fees) that Landlord may incur or suffer in connection
with, or in any way relating to, the inaccuracy of any representation or
warranty made by Tenant in this paragraph. Landlord shall indemnify and hold
Tenant harmless from and against any and all claims, demands, losses,
liabilities, costs or expenses (including, without limitation, reasonable
attorneys’ fees) that Tenant may incur or suffer in connection with, or in any
way relating to, the inaccuracy of any representation or warranty made by
Landlord in this paragraph. Landlord shall pay all brokerage fees and/or
commissions due and payable to the Broker in connection with the negotiation,
execution and delivery of this Amendment pursuant to a separate written
agreement entered into prior to the date of this Amendment between Landlord
and the Broker.



     Section 19. Time of Essence.



     Time shall be of the essence with respect to each and every of the
obligations of Tenant and Landlord set forth in this Amendment.



     Section 20. Ratification; Conflicting Provisions.



     Except as and only to the extent explicitly modified by the terms and
provisions of this Amendment, all of the terms and provisions of the Existing
Lease and the exhibits thereto are ratified and confirmed in all respects,
remain in full force and effect. In the event that any of the terms, conditions
or provisions of this Amendment shall conflict with any of the terms,
conditions or provisions of the Existing Lease, then and in any such event, the
terms, conditions and provisions of this Amendment shall be controlling.



     Section 21. Entire Agreement; Amendments.



     This Amendment contains the entire understanding of the parties to this
Amendment with respect to the subject matters covered in this Amendment and no
prior agreements or understandings between the parties to this Amendment, or
in any way relating to the subject matter covered in this Amendment, shall be
effective after the execution of this Amendment, whether or not such
agreements or understandings are similar, broader in scope, more narrow in
scope or in any other way different from the terms and conditions of this
Amendment. This Amendment may be modified only by a written instrument signed
by the parties to this Amendment.



     Section 22. Effectiveness.



     The furnishing to Tenant of the form of this Amendment shall not
constitute an offer by Landlord and this Amendment shall become effective in
accordance with its terms upon and only upon its execution by and delivery by
the parties to this Amendment.



17









 





     Section 23. Recitals; Headings.



     The recitals set forth at the beginning of this Amendment shall be deemed
to be a part of this Amendment. The headings set forth at the beginning of each
of the sections of this Amendment are inserted for convenience of reference
only and shall not be deemed to have any legal significance or meaning
whatsoever.



     Section 24. Governing Law.



     This Amendment and the terms and provisions hereof shall be governed by
and construed in accordance with the laws of the State of Maryland.



     Section 25. Successors and Assigns.



     This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.



     Section 26. Tenant’s Right to Cure.



     Notwithstanding anything to the contrary set forth elsewhere in this
Amendment, in the event that for any reason other than (a) the occurrence of an
event of Force Majeure, (b) any delay or hindrance on the part of Tenant, or
(c) any default by Tenant with respect to any of the agreements, covenants or
obligations of Tenant set forth in the Lease, (i) Landlord shall fail to
Substantially Complete the Landlord’s Roof Work on or before the Landlord’s
Roof Work Substantial Completion Target Date, (ii) Landlord shall fail to
Substantially Complete the Additional Landlord Work on or before the Additional
Landlord Work Substantial Completion Target Date, and/or (iii) Landlord shall
fail to Substantially Complete the Windows/Doors Work on or before the
Windows/Doors Work Substantial Completion Target Date, then and in any such
event (but subject to the terms and conditions of Article 44 of the Original
Lease), Tenant shall have the right (but not the obligation) to complete such
obligation on the part of Landlord in a commercially reasonable manner. If in
accordance with the preceding terms and conditions of Section 26 of this
Amendment, Tenant shall complete any such obligation of Landlord, all
reasonable costs and expenses actually incurred and paid by Tenant in such
regard shall be reimbursed to Tenant by Landlord not later than thirty (30)
days after written demand shall be made therefor by Tenant of Landlord (which
written demand shall be accompanied by copies of invoices or other evidence
reasonably satisfactory to Landlord showing Tenant to have actually incurred
and paid the costs and expenses in question).



     Section 27. Mortgagee Consent



     (a) For purposes of this Amendment, “Mortgagee” means Allstate Life
Insurance Company. For purposes of this Amendment, “Mortgage” means that
certain Indemnity Deed of Trust, Assignment of Leases, Rents and Contracts,
Security Agreement and Fixture Filing dated as of December 21, 1995 made by
Original Landlord to John D. Hagner and Stuart A. Kruger, Trustees, acting on
behalf of Mortgagee, as beneficiary, together with all addenda, exhibits,
riders and supplements thereto and any and all amendments (if any) thereto in
effect as of the date of this Amendment, as recorded prior to the date of this
Amendment among the Land Records of Howard County, Maryland. For purposes of
this Amendment, “Non-Disturbance Agreement” means that certain Agreement of
Subordination, Non-Disturbance and Attornment dated December 21, 1995 made by
Mortgagee in favor of Tenant with respect to the Lease and the Mortgage.



     (b) Notwithstanding anything to the contrary set forth elsewhere in this
Amendment, each and every of the agreements, covenants and obligations of
Landlord and Tenant set forth in this Amendment are expressly contingent upon
the obtaining by Landlord on or before that date which is thirty (30) days
after the date of this Amendment of the written consent of Mortgagee, given
with respect to the Mortgage and the Non-Disturbance Agreement, to the terms
and conditions of (i) this Amendment, (ii) the Fourth Amendment, and (iii) the
Fifth Amendment. Landlord shall use commercially reasonable efforts to obtain
such written consent of Mortgagee as soon as possible after the date of this
Amendment. Landlord represents and warrants to Tenant that as of the date of
this Amendment Landlord has no knowledge, information or belief that Mortgagee
will refuse to give such written consent on or before that date which is thirty
(30) days after the date of this Amendment. In the event that for any reason
whatsoever Mortgagee shall not give such written consent for such purposes with
respect to the terms and conditions of this Amendment, the Fourth Amendment
and/or the Fifth Amendment on or before that date which is thirty (30) days
after the date of this Amendment, then and in any such event, this Amendment
shall terminate automatically as of that date which is thirty (30) days after
the date of this Amendment, without any obligation on the part of any party to
this Amendment to give notice thereof to the other party to this Amendment,
whereupon the Existing Lease shall continue in full force and effect as if this
Amendment had never been executed and delivered by Landlord and Tenant, and
thereupon neither of the parties to this Amendment shall have any further
rights, liabilities



18









 




or obligations to the other party to this Amendment pursuant to this Amendment
except for those rights, liabilities and obligations set forth in this
Amendment which in accordance with the terms and conditions of this Amendment
expressly survive any such termination of this Amendment.




     (c) For purposes of this Amendment, “Early Start Tenant Improvements”
means the alterations and improvements to the Expanded Premises that are more
particularly described in Exhibit G attached to and hereby made a part of this
Amendment. For purposes of this Amendment, “Early Start Tenant Improvements
Costs” means, collectively, the costs and expenses actually and reasonably
incurred by Tenant in connection with the construction and/or installation of
the Early Start Tenant Improvements. Tenant has heretofore advised Landlord
that, at Tenant’s sole option and risk and though not yet approved by Landlord
in accordance with the terms and conditions of Section 6 of this Amendment
(but, as to the Additional Premises only, in accordance with the terms of that
certain indemnity letter dated February 12, 2004 sent by Manekin, LLC, agent of
Landlord, to Tenant (as amended by that certain letter dated May 6, 2004 sent
by Manekin, LLC, agent of Landlord, to Tenant)), Tenant has on or before the
date of this Amendment commenced the construction and/or installation of the
Early Start Tenant Improvements, intending, ultimately, that the Early Start
Tenant Improvements comprise a portion of the Other Tenant Improvements. In the
event that in accordance with the terms and conditions of Section 27(b) of this
Amendment this Amendment shall terminate, then and in such event, not later
than thirty (30) days after written demand shall be made therefor by Tenant of
Landlord, Landlord shall reimburse Tenant, in an amount not to exceed
$325,000.00, in the aggregate, for Early Start Tenant Improvements Costs
actually incurred and paid by Tenant with respect to Early Start Tenant
Improvements that are approved by Landlord as part of the Other Tenant
Improvements in accordance with the terms and conditions of Section 6 of this
Amendment. Nothing set forth in Section 27(c) of this Amendment shall be
construed to be the consent of Landlord to, or the approval by Landlord of, any
of the Early Start Tenant Improvements, it being acknowledged and agreed by
Landlord and Tenant that such consent and/or approval of Landlord shall be
governed by the terms and conditions of Section 6 of this Amendment. Any demand
made by Tenant of Landlord for reimbursement in accordance with the terms and
conditions of Section 27(c) of this Amendment shall be accompanied by copies of
invoices or other evidence reasonably satisfactory to Landlord showing Tenant
to have actually incurred and paid the costs and expenses in question.
Immediately upon any reimbursement made by Landlord to Tenant for Early Start
Tenant Improvements Costs in accordance with the terms and conditions of
Section 27(c) of this Amendment, the Early Start Tenant Improvements shall
become the property of Landlord. Following termination of this Amendment in
accordance with the terms of Section 27(c) of this Amendment, Tenant shall use
commercially reasonable efforts to mitigate the amount of any reimbursement
that Landlord may otherwise become obligated to make to Tenant in accordance
with the terms and conditions of Section 27(c) of this Amendment. In
furtherance of the preceding sentence, if any of the items intended by Tenant
to comprise a portion of the Early Start Tenant Improvements shall not have
been delivered to the Expanded Premises as of the date of termination of this
Amendment, though subject to purchase agreements under which Tenant shall be
the contract purchaser, then and in such event and after consultation in regard
thereto with Landlord, to the extent possible and in order to minimize the
reimbursement obligations of Landlord to Tenant pursuant to Section 27(c) of
this Amendment in connection therewith, Tenant shall promptly cancel all such
purchase agreements that Tenant may cancel (i) without penalty and (ii) upon
payment of a penalty (including, without limitation, the forfeiture of any
prepaid deposit) so long as Landlord shall approve in writing of such penalty.
If, in accordance with the terms and conditions of the preceding sentence of
this paragraph and with the approval of Landlord, Tenant shall incur a penalty
in connection with the cancellation of any purchase agreement, the amount of
such penalty shall be deemed to be includable as part of the Early Start Tenant
Improvements Costs. The obligations of Landlord and Tenant set forth in Section
27(c) of this Amendment shall survive any termination of this Amendment in
accordance with the terms and conditions of Section 27(b) of this Amendment.



     Section 28. Counterparts.



     This Amendment may be executed in counterparts, each of which shall be
deemed to be an original of this Amendment, but all of which, together, shall
constitute one and the same instrument.



19









 





     IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this
Amendment under seal on and as of the date first set forth above.




	 	 	 	 	 	 	 	 	 	 	 
	 	 	LANDLORD:
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS:	 	M.O.R. CBC LLC,
	 	 	a Maryland limited liability limited company
	 	 	By:	 	AMB Property, L.P., a Delaware limited
	 	 	 	 	partnership, its Managing Member
	 	 	 	 	By:	 	AMB Property Corporation, a Maryland
	 	 	 	 	 	 	corporation, its General Partner
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	 	 	 	 	By:
	 	/s/ David G. King	 	(SEAL)
	


	 	 	 	 	 	 	 	
	 	 
	

	 	 	 	 	 	 	 	David G. King, Vice President	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Date of Execution:
May 13, 2004
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	TENANT:
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	MARTEK BIOSCIENCES CORPORATION
	 
	 	 	 	 	 	 	 	 	 	 
	

	 	By:
	 	/s/ George P. Barker	 	(SEAL)
	
	 	 	 	
	 	 
	 	 	 	 	George Barker, Senior Vice President
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Date of Execution:
May 13, 2004







20









 





EXHIBIT A




PLAT SHOWING THE EXPANDED PREMISES

(INCLUDING THE ADDITIONAL PREMISES)





A-1










 





EXHIBIT B




LIST OF TENANT REPAIR HVAC UNITS




The Tenant Repair HVAC Units shall consist solely of the following:



	 
	RTU-6 (12 ton) Carrier Model #50PQ014600, Serial #Z883992

	RTU-7 (12 ton) Carrier Model #50DP014600, Serial #Y884258

	RTU-8 (10 ton) Carrier Model #50DP012600, Serial #W884355

	RTU-11 (3 ton) Carrier Model #50QD006520, Serial #2686G43135

	RTU-14 (7.5 ton) Carrier Model #50QD008610DA, Serial #1788G32253

	RTU-15 (7.5 ton) Carrier Model #50QD008610, Serial #3486G73434

	RTU-16 (7.5 ton) Carrier Model #50QD008610, Serial #3486G73433








B-1









 





EXHIBIT C




DESCRIPTION OF THE ADDITIONAL LANDLORD WORK




     The Additional Landlord Work shall consist solely of the following:



     (a) The replacement of those doors to the exterior of the Expanded
Premises that exist as of the date of this Amendment, but are to be rendered
inactive by Tenant following the completion of the Tenant Improvements, with
windows of similar size (the “Door Replacement Work”). The Door Replacement
Work is more particularly described in Exhibit C-l attached to and hereby made
a part of this Exhibit C.



     (b) The repair of any damaged tiling that as of the date of this Amendment
surrounds any of the exterior doors serving the Expanded Premises.



     (c) The striping or restriping, as applicable, of that portion (the
“Additional Parking Area”) of the rear parking lot serving the Building that is
more particularly shown on Exhibit F, in a commercially reasonable manner
complying with all applicable laws, ordinances, rules and regulations so as to
maximize the number of additional parking spaces for automobiles that may be
located thereon.



     (d) The installation of additional lighting serving the exterior and
parking areas of the Building in a manner and to specifications that are, in
the reasonable opinions of Landlord and Tenant, commercially reasonable.



     (e) The repair of the sidewalks that serve the Expanded Premises as of the
date of this Amendment, as more particularly described on
Exhibit C-2 attached
to and hereby made a part of this Exhibit C (the “Sidewalk Repair Work”).



     (f) The removal of those sidewalks that as of the date of this Amendment
serve the Expanded Premises that Tenant and Landlord agree in writing shall no
longer be necessary following completion of the redesign by Tenant of the
interior of the Expanded Premises and the re-landscaping, in a commercially
reasonable manner, of those areas of the exterior of the Building where such
removed sidewalks were located.



C-1









 





EXHIBIT C-l




DRAWINGS AND/OR SPECIFICATIONS MORE PARTICULARLY DESCRIBING

THE DOOR REPLACEMENT WORK




     The Door Replacement Work shall consist solely of the following:



     (a) Five (5) exterior front doors designated to be inactive by Tenant are
to be replaced with windows of similar size. The color of the glass is to match
the current windows.



     (b) Replacement of doors and frames of the remaining three (3) doors that
are to remain active, including: (i) the current main entrance of the Existing
Premises; (ii) the current employee entrance of the Existing Premises; and
(iii) the current entrance of the Additional Premises. The color of the glass
on these doors is to match the current windows and the doors are to include
like hardware. Tenant reserves the right to have the hardware upgraded at
Tenant’s cost.



     (c) The replacement of nine (9) of the eighteen (18) rear metal doors
(including like hardware). This is to include repair or replacement of the
frames as mutually agreed upon by Landlord and Tenant.



     (d) The remaining nine (9) doors and all bay doors are to be painted to
match the new doors.



     (e) New signage will be added after painting and/or replacement (to be
specified by Tenant at a later date).



C-2









 





EXHIBIT C-2




DESCRIPTION OF THE SIDEWALK REPAIR WORK




     The Sidewalk Repair Work shall consist solely of the following:



     (a) The removal of three (3) sidewalks, entrance pads and connecting
walkways leading to exterior doors of the Expanded Premises that have been
designated by Tenant to be rendered inactive and which doors shall be replaced
with windows of similar size by Landlord (see Exhibit C-l); and



     (b) The repair and/or replacement of uneven remaining sidewalks and
entrance pads.



C-3









 





EXHIBIT D




DESCRIPTION OF THE WINDOWS/DOORS WORK




     The Windows/Doors Work shall consist solely of the following:



     (a) The replacement of all of the green glass panels that as of the date
of this Amendment are part of the windows at the exterior of the Building;



     (b) The application of pre-formed extruded silicon tape boot over all of
the joints between head receptors and head receptor removable stops, as
applicable, at all windows and doors along the exterior of the Building;



     (c) The application of pre-formed extruded silicon tape boot over all of
the head receptors and subsill flashing/joints, as applicable, at all windows
and doors of the exterior of the Building;



     (d) The opening of all sealed weep holes in all of the window sill
assemblies along the exterior of the Building; and



     (e) Satisfactory installation of all installed Windows/Doors Work with
performance confirmed by field hose testing at (i) the start of such work, (ii)
20% completion, (iii) 50% completion, (iv) 75% completion, and (v) 100%
completion.



D-1









 





EXHIBIT E




LIST OF LANDLORD REPAIR HVAC UNITS




The Landlord Repair HVAC Units shall consist solely of the following:




	 
	RTU-1 (7.5 ton) Carrier Model #50D008610DA, Serial #3987G40988 (Existing Premises)

	RTU-2 (5 ton) Carrier Model #50D006620DA, Serial #0688G95216(Existing Premises)

	RTU-3 (3 ton) Carrier Model #50DJ06600, Serial #4588G06263 (Existing Premises)

	RTU-4 (5 ton) Carrier Model#50QJ006600GA, Serial #0489G21159 (Existing Premises)

	RTU-5 (20 ton) York Model #D2CE240E05446ECA, Serial #NCBM015179 (Existing Premises)

	RTU-9 (15 ton) Carrier Model #50TJ016681AA, Serial #N/A (Existing Premises)

	RTU-10 (7.5 ton) Carrier Model #50QD008610, Serial #2188G44864 (Existing Premises)

	RTU-12 (15 ton) York Model #D3CE150A46JSA, Serial #NBBM012744 (Existing Premises)

	RTU-13 (20 ton) York Model #D2CE240E07246ECA, Serial #NCBM014896 (Existing Premises)

	RTU-17 (7.5 ton) Carrier Model #50QD008610, Serial #3486G73430 (Existing Premises)

	RTU-18 (5 ton) Carrier Model #50LJQ06610, Serial #4991G47758 (Existing Premises)

	RTU-19 (5 ton) Carrier Model #50QD006600-20A, Serial #4586G19868 (Existing Premises)

	RTU-20 (5 ton) Carrier Model #50QD006600-20A, Serial #0387G50336 (Existing Premises)

	RTU-1 (7.5 ton) Carrier Model #50TJQ008-601GA, Serial #3598G30553 (Additional Premises)

	RTU-2 (5 ton) York Model #B3CH060A46C, Serial #NDFM038983 (Additional Premises)








E-1









 








EXHIBIT F




PLAT SHOWING RESERVED

PARKING SPACES AND ADDITIONAL PARKING AREA




F-1









 








EXHIBIT G




DESCRIPTION OF THE EARLY START TENANT IMPROVEMENTS




     The Early Start Tenant Improvements shall consist solely of the
following:



     (a) An alarm system serving the Expanded Premises;



     (b) The fit out of a molecular laboratory within the Expanded Premises;



     (c) Carpeting, painting, construction, IT and wiring of Suite A of the
Expanded Premises; and



     (d) Carpeting for that portion of the Expanded Premises other than Suite
A.




F-2