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LEASE
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The Science and Technology
Park at Johns
Hopkins
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Baltimore, Maryland
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855 N. WOLFE STREET, LLC,
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a Delaware limited liability company
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CHAMPIONS BIOTECHNOLOGY, INC.,
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a Delaware corporation
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Dated: As of January 30, 2009
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Page
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ARTICLE 1
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RECITALS, DEFINITIONS AND BASE
LEASE TERMS
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1
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Section
1.1
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Recitals
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1
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Section
1.2
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Definitions
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1
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Section
1.3
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Base
Lease Terms
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3
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ARTICLE 2
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PREMISES AND TERM
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3
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Section
2.1
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Premises
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3
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Section
2.2
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Appurtenant
Rights
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4
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Section
2.3
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Landlord’s
Reservations
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4
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Section
2.4
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Parking
Passes.
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5
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ARTICLE 3
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RENT AND OTHER
PAYMENTS
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6
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Section
3.1
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Annual
Fixed Rent
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6
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Section
3.2
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Utility
Charges
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6
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Section
3.3
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Above
Standard Services
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6
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Section
3.4
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No
Offsets
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6
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ARTICLE 4
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ALTERATIONS
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7
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Section
4.1
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Consent
Required for Tenant’s Alterations
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7
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Section
4.2
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Ownership
of Alterations
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7
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ARTICLE 5
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RESPONSIBILITY FOR CONDITION OF
BUILDING AND PREMISES
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8
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Section
5.1
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Maintenance
of Building and Common Areas by Landlord
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8
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Section
5.2
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Maintenance
of Premises by Tenant
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8
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Section
5.3
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Delays
in Landlord’s Services
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9
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Section
5.4
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Tenant’s
Responsibilities Regarding Hazardous Materials
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9
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ARTICLE 6
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TENANT COVENANTS
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12
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Section
6.1
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Permitted
Uses
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12
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Section
6.2
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Laws
and Regulations
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12
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Section
6.3
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Rules
and Regulations
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12
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Section
6.4
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Safety
Compliance
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13
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Section
6.5
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Landlord’s
Entry
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13
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Section
6.6
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Floor
Load
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13
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Section
6.7
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Personal
Property Tax
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13
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Section
6.8
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Assignment
and Subleases
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14
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ARTICLE 7
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INDEMNITY AND
INSURANCE
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14
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Section
7.1
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Indemnity
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14
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Section
7.2
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Tenant’s
Insurance
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14
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Section
7.3
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Personal
Property at Risk
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15
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Section
7.4
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Waiver
of Subrogation
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15
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Section
7.5
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Policy
Requirements
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16
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ARTICLE 8
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CASUALTY AND EMINENT
DOMAIN
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16
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Section
8.1
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Restoration
Following Casualties
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16
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Section
8.2
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Eminent
Domain
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16
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Section
8.3
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Temporary
Taking
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17
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ARTICLE 9
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DEFAULT
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17
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Section
9.1
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Tenant’s
Default
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Section
9.2
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Damages
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Section
9.3
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Cumulative
Rights
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19
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Section
9.4
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Landlord’s
Self help
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Section
9.5
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Enforcement
Expenses; Litigation
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20
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Section
9.6
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Late
Charges; Interest on Overdue Payments
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20
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Section
9.7
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Landlord’s
Right to Notice and Cure
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20
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ARTICLE 10
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MORTGAGEES’
RIGHTS
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21
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Section
10.1
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Subordination;
Estoppel Certificate
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21
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Section
10.2
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Assignment
of Rents
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21
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ARTICLE 11
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[Intentionally
Omitted]
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ARTICLE 12
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MISCELLANEOUS
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22
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Section
12.1
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Notice
of Lease
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Section
12.2
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Notices
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Section
12.3
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Successors
and Limitation on Liability
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22
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Section
12.4
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Waivers
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Section
12.5
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Acceptance
of Partial Payments of Rent
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23
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Section
12.6
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Interpretation
and Partial Invalidity
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23
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Section
12.7
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Quiet
Enjoyment
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Section
12.8
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Brokerage
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Section
12.9
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Surrender
of Premises and Holding Over
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23
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Section
12.10
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Financial
Reporting
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25
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Section
12.11
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No
Consequential Damages
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25
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Section
12.12
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Governing
Law
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25
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Section
12.13
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Signage
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26
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Section
12.14
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Future
Construction
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26
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Section
12.15
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Measurement
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26
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Section
12.16
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Relocation
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26
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EXHIBIT A
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Base Lease Terms
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EXHIBIT B
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Legal Description
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EXHIBIT C - 1
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Location of Premises
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EXHIBIT C - 2
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Map of the Park - Showing
Initial Location of Parking
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EXHIBIT C - 3
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Location of Parking
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EXHIBIT D
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Work Letter
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EXHIBIT E
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Standard Services
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EXHIBIT F
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Rules and Regulations
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EXHIBIT G
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Dang Letter
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RECITALS, DEFINITIONS AND BASE LEASE
TERMS
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Recitals.
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This
Lease (this ““Lease”“) is entered into as
of this 30th day of January, 2009 by and between 855 N. Wolfe
Street, LLC, a Delaware limited liability company (the
““Landlord”“) and Champions Biotechnology,
Inc., a Delaware corporation (the
““Tenant”“).
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In
consideration of the mutual covenants herein set forth, the
Landlord and the Tenant do hereby agree to the terms and conditions
set forth in this Lease.
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Definitions.
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Certain
terms used in this Lease shall have the meanings set forth
below:
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"Additional
Rent" means all charges payable by the Tenant pursuant to this
Lease other than Annual Fixed Rent, including without implied
limitation any amounts payable to Landlord for separately
submetered utilities and services pursuant to Section 3, any
Excess Costs payable to Landlord pursuant to Exhibit D and any
amounts payable for Parking Passes as set forth in Section
2.4.
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"Annual
Fixed Rent" - See Exhibit A and 3.1.
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"Broker"
- Colliers Pinkard/ROC Realty , See Section
12.8.
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““Building”“
- See Exhibit A .
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"Commencement
Date: - See Exhibit A .
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"Common
Areas" - See Section 2.2.
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““Declaration
of Covenants”“ - See Section 2.3(c)
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"Default
Interest Rate" - see Section 9.6.
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““Excusable
Delay”“ means any delay in the satisfaction of the
conditions in question to the extent the same is a consequence of
External Causes including, without limitation, any governmental
embargo restrictions, or actions or inactions of local, state or
federal governments (such as, without limitation, any delays in
issuing building permits, certificates of occupancy or other
similar permits or certificates without the fault of either
party).
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"External
Causes" means, when referring to a party’s responsibilities
under this Lease, collectively Acts of God, war, civil commotion,
terrorism, fire, flood or other casualty, strikes or other
extraordinary labor difficulties or shortages of labor or materials
or equipment in the ordinary course of trade, extraordinary weather
conditions, government order or regulations or other cause not
reasonably within the control of such party, and not due to the
fault or neglect of such party. In no event shall financial
inability be deemed to be an External Cause.
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"Landlord’s
Work" - See Exhibit D .
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"Land"
means the parcel of land situated in Baltimore, Maryland, described
in Exhibit B .
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"Landlord’s
Address for Notices"
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855 N. Wolfe Street,
LLC
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c/o Forest City
Development
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1130 Terminal Tower
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50 Public Square
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Cleveland, Ohio 44113 -
2203
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Attention: James
Ratner
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with copies to:
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855 N. Wolfe Street,
LLC
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c/o Forest City
Development
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38 Sidney Street
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Cambridge, Massachusetts 02139
- 4234
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Attention: President
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and:
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Forest City Commercial
Management, Inc.
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38 Sidney Street
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Cambridge, Massachusetts 02139
- 4234
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Attention: General
Manager
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"Lease
Year" - A one - year period commencing on the
Commencement Date (provided, however, that if the Commencement Date
does not occur on the first day of a month, the first Lease Year
shall end on the last of the month in which the anniversary of the
Commencement Date occurs); each subsequent Lease Year shall consist
of one calendar year beginning on the day immediately following the
expiration of the prior Lease Year.
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"Park"
- The buildings and associated land located from time to
time within the Science and Technology Park at Johns Hopkins, as
such area is depicted on Exhibit C-2 .
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"Parking
Passes" - See Exhibit A
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"Permitted
Uses: - See Exhibit A .
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"Premises:
- See Exhibit A .
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"Property"
- The Land and the Building.
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"Rules
and Regulations" - See Section 6.3 and Exhibit F
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"Substantial
Completion" - See Exhibit D .
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"Tenant’s
Original Address" -
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Champions Biotechnology,
Inc.
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1820 East Ray Road
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Chandler, Arizona
85225
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Attn: ______________
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““Initial
Term”“ - See Exhibit A .
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Base
Lease Terms.
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The
Base Lease Terms are set forth on Exhibit A ,
attached.
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PREMISES AND TERM
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Premises.
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The
Landlord hereby leases to the Tenant, and the Tenant hereby leases
from the Landlord, for the Initial Term, the Premises, which shall
be comprised of the space illustrated on Exhibit C-1 ,
subject to the exclusion herein below set forth in this Section
2.1, Landlord’s reservations set forth in Section 2.3, such
easements, covenants and restrictions as may affect the Property
and the terms and conditions of this Lease. Tenant shall further be
subject to any easements, covenants and/or restrictions or other
matters of record encumbering the Park provided that such any such
matters of record arising after the date hereof does not prohibit
Tenant’s use and occupancy of the Premises for the Permitted
Use or materially and adversely affect Tenant’s rights under
this Lease. The Tenant acknowledges that, except as expressly set
forth in this Lease, there have been no representations or
warranties made by or on behalf of the Landlord with respect to the
Premises, the Building or the Property or with respect to the
suitability of any of them for the conduct of the Tenant’s
business or activities. The Premises shall exclude common areas and
facilities of the Property, including without limitation exterior
faces of exterior walls, the entry, vestibules and main lobby of
the Building, first floor elevator lobby and lavatories, the common
stairways and stairwells, elevators and elevator wells, boiler
room, sprinklers, sprinkler rooms, elevator rooms, mechanical
rooms, loading and receiving areas, electric and telephone closets,
janitor closets, and pipes, ducts, conduits, wires and appurtenant
fixtures and equipment serving exclusively or in common other parts
of the Building. If the Premises at any time includes less than the
entire rentable floor area of any floor of the Building, the
Premises shall also exclude the common corridors, vestibules,
elevator lobby, lavatories, and freight elevator vestibule located
on such floor.
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Appurtenant
Rights.
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The
Tenant shall have, as appurtenant to the Premises, the nonexclusive
right to use in common with others, subject to the Rules and
Regulations (as defined in Section 6.3): (i) the entry, vestibules
and main lobby of the Building, the common stairways, elevators,
sprinkler rooms, mechanical rooms, electric and telephone closets,
and the pipes, sprinklers, ducts, conduits, wires and appurtenant
fixtures and equipment serving the Premises in common with others,
(ii) common walkways and driveways situated upon the Land that are
necessary or reasonably convenient for access to the Building,
(iii) access to, and use of in common with other tenants of,
loading and receiving areas and freight elevators, and electrical
and telephone closets, all subject to Rules and Regulations then in
effect, and (iv) if the Premises at any time includes less than the
entire rentable floor area of any floor, the common corridors,
vestibules, elevator lobby, lavatories, and freight elevator
vestibule located on such floor (collectively, the "Common
Areas").
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The
Tenant shall have, as appurtenant to the Premises, the parking
rights set forth in Section 2.4.
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The
Tenant shall have, as appurtenant to the Premises, the nonexclusive
right to use for up to 20 hours per month, subject to reasonable
rules and regulations promulgated by Landlord from time to time,
the conference rooms in Landlord’s development offices and
the kitchenette adjacent thereto (but only in connection with
Tenant’s use of the conference rooms) that are made available
to certain other tenants in the Building on a ““first
come, first served”“ basis, provided that Tenant shall
be responsible for the payment, as Additional Rent, of any
incidental third party costs incurred by Landlord in connection
with Tenant’s use of such spaces (excluding any costs of
janitorial services, electricity or other services that are
provided by Landlord to the conference rooms regardless of whether
or not they are utilized).
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The
Tenant shall have, as appurtenant to the Premises, the nonexclusive
right to use the facilities (the "Facilities") located on the
medical campus of The Johns Hopkins University (the
““University”“) as set forth in the letter
dated January 23, 2009 from Chi V. Dang, M.D., Ph.D., Vice Dean of
Research for the University (the ““Dang
Letter”“), such Facilities shall include but not be
limited to: (i) microarray core; (ii) molecular imaging core;
(iii) microscopy; (iv) mass spectrometry and proteomics; (v) high
throughput biology center, including chemical library cleaning and
peptide/protein sequencing; (vi) flow cytometry core; (vii)
specialized tools for large - scale analysis; (viii)
minimally invasive surgical training center; (ix) biomedical
imaging; and (x) Vivarium and Medical Library access including
access to a Vivarium by an indoor route. A copy of the Dang
Letter is attached hereto as Exhibit G. The Tenant and the
University will individually negotiate any service
agreements. Landlord shall have no obligation to Tenant with
respect to the use of the Facilities. If Tenant is denied access to
the Facilities for a period exceeding thirty (30) consecutive days,
and such denial of access to the Facilities is within the
University’s reasonable control and not due to causes beyond
the University’s control such as force majeure or national or
state emergencies, Tenant shall have the right to terminate the
Lease within thirty (30) days after providing Landlord a written
termination notice, and Tenant shall surrender the
Premises on the termination date provided in the notice as
required under Section 12.9 of the Lease. As of the
termination date, Landlord and Tenant shall be relieved from all
obligations under the Lease, except Landlord’s obligation to
return any unused portion of the Security Deposit and any other
obligations that expressly survive the early termination of this
Lease.
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Landlord’s
Reservations.
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The
Landlord reserves the right from time to time, without unreasonable
interference with the Tenant’s use to alter or modify the
Common Areas, provided that (i) the Landlord gives the Tenant
reasonable advance notice of the Landlord’s contemplated
alterations or modifications where they are reasonably likely to
impact Tenant’s use and enjoyment of the Premises, (ii) any
such actions are effected in a good and workmanlike manner, and
(iii) such alterations or modifications do not permanently impair
Tenant’s access to the Premises or its practical use and
enjoyment thereof.
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In
addition to other rights reserved herein or by law, Landlord
reserves the right from time to time, without unreasonable
interruption of Tenant’s use and access to the Premises (and
in any event during the existence of an emergency) (i) to make
additions to or reconstructions of the Building and to install,
use, maintain, repair, replace and relocate for service to the
Premises and other parts of the Building, or either, pipes, ducts,
conduits, wires and appurtenant fixtures, wherever located in the
Premises, the Building, or elsewhere in the Property, provided
that, to the extent practicable such installations, replacements or
relocations in the Premises shall be placed above ceiling surfaces,
below floor surfaces, or to the outside of the interior face of
perimeter walls; (ii) to name or change the name of the Building,
and (iii) to grant easements and other rights with respect to the
Property.
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Parking
Passes.
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The
Landlord shall provide Parking Passes (as defined in Exhibit
A ) for use by the Tenant’s employees in accordance with
the provisions of this Section 2.4, and in the locations designated
on Exhibit C-2 or such other locations within the Park as
Landlord reasonably designates by notice to Tenant from time to
time. The Tenant agrees that it and all persons claiming by,
through and under it, shall at all times abide by the Rules and
Regulations with respect to the use of the parking facilities
provided by the Landlord pursuant to this Lease. The Landlord
acknowledges that it is the Landlord’s responsibility to
assure Tenant that holders of Parking Passes who comply with the
Rules and Regulations are able to park their motor vehicles in the
designated parking facilities within the Park. The Tenant
acknowledges that the parking facilities within the Park may be
owned by an entity other than Landlord. In no event are Parking
Passes transferable other than to the holder, from time to time, of
the Tenant’s interest under this Lease or a subtenant that
has been demised all or a portion of the Premises in conformity
with the requirements of this Lease. Parking Passes are limited to
use by employees of Tenant or Tenant’s permitted subtenants.
Landlord, or the entity that owns the parking facilities, shall
provide security for the parking facilities twenty - four (24) hours a day, seven (7) days a
week.
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Tenant
shall pay for all of its allocated Parking Passes at
Landlord’s then current prevailing monthly rate for Parking
Passes. The cost of the Parking Passes will be subject to an upward
adjustment based on market conditions and may change from time to
time; however, all Parking Passes and any additional parking passes
that Tenant may secure on a month - to - month basis
from Landlord, will be available at the lowest rate offered to
other tenants of the Park in a fair and reasonable manner. Such
payments shall constitute Additional Rent for purposes of the
Lease. Payments under this Section shall be made at the places and
times and subject to the conditions specified for payments of
Annual Fixed Rent, or at such other places and times as Landlord
shall specify in writing. Without limiting Landlord’s other
remedies under the Lease, if Tenant shall fail to pay the amounts
due for such Parking Passes for more than ten (10) days after
notice of such failure, then Landlord may terminate Tenant’s
rights to such Parking Passes immediately upon notice by
Landlord.
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On the
Commencement Date, Tenant’s Parking Passes will enable the
holders of the Parking Passes to park in the surface parking lots
located in the Park. The initial rate for the Parking Passes for
the surface parking lots is $120.00 per month per Parking Pass.
When structured parking has been completed, the Landlord may
require the holders of the Parking Passes to park in the structure
parking facilities.
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Section
2.5 Commencement Date and Term.
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(a)
Commencement Date . The Commencement Date
shall be as set forth on Exhibit A . If the Commencement
Date has not occurred on or before May 1, 2009, then Tenant shall
have the right to immediately terminate this Lease by providing
written notice to the Landlord. Landlord shall return the Security
Deposit, as defined herein, to Tenant within ten (10) days of such
termination, and both parties shall be released from all
obligations hereunder, except those that expressly survive the
earlier termination of this Lease.
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(b)
Initial Term. The Initial Term of this Lease
shall be as set forth on Exhibit A. The Initial Term of this Lease
shall automatically extend at the end of Initial Term for five (5)
additional periods of one (1) year each unless Tenant gives the
Landlord written notice by certified mail, return receipt
requested, of its intention not to renew this Lease at least ninety
(90) days prior to the expiration of the Initial Term, or the
applicable renewal term. The renewal term(s) shall be upon the same
terms, covenants and conditions set forth herein with respect to
the Initial Term, including inter alia, Tenant’s liability
for increased rent as described in Exhibit A. All references in
this Lease to the ““Term”“ shall be
construed to mean the Initial Term and the renewal period(s) unless
the context clearly indicates that another meaning is
intended.
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RENT AND OTHER PAYMENTS
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Annual
Fixed Rent.
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The
Annual Fixed Rent applicable to the Premises during the Term shall
be as set forth on Exhibit A . On the Commencement Date and
on the first day of each month thereafter, the Tenant shall pay,
without notice or demand, monthly installments of one twelfth
(1/12) of the Annual Fixed Rent in effect in advance for each full
calendar month of the Term following the Commencement Date and a
corresponding fraction of said one twelfth (1/12) for any fraction
of a calendar month in which the Commencement Date
occurs.
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Utility
Charges.
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During
the Term, the Tenant shall pay for the cost of all electricity
furnished to the Premises. Tenant shall purchase electricity from
the utility service providing electricity to the Building from time
to time. Tenant’s usage and billing shall depend upon
Landlord’s reading of the check meters (or, if not check
metered, upon the reasonable estimate of Tenant’s usage as
determined by Landlord’s engineer) for such service or, if,
Tenant’s usage is non-determinable, based on the proportion
of Tenant’s rentable square footage compared to other tenants
having use of the same utility service. Unless separately metered
and paid directly by Tenant, Additional Rent for utilities in the
Premises may be estimated monthly by Landlord, based upon the
estimate set forth in the preceding sentence, and shall be paid
monthly by Tenant as billed with a final accounting based upon
actual bills following the conclusion of the fiscal year of the
Building.
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Above
Standard Services.
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If the
Tenant requests and the Landlord elects to provide any services to
the Tenant in addition to those described in Exhibit E , the
Tenant shall pay to the Landlord, as Additional Rent, the amount
billed by Landlord for such services at Landlord’s standard
rates as from time to time in effect. If the Tenant has requested
that such services be provided on a regular basis, the Tenant
shall, if requested by the Landlord, pay for such services at their
actual cost to Landlord, including, without limitation, a
reasonable overhead component, at the time and in the fashion in
which Annual Fixed Rent under this Lease is payable. Otherwise, the
Tenant shall pay for such additional services within thirty (30)
days after receipt of an invoice from the Landlord.
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No
Offsets.
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Annual
Fixed Rent and Additional Rent shall be paid by the Tenant without
offset, abatement or deduction except as provided herein. Without
limiting the foregoing, Tenant’s obligation to pay rent shall
be absolute, unconditional, and independent and shall not be
discharged or otherwise affected by any law or regulation now or
hereafter applicable to the Premises, or any other restriction on
Tenant’s use, or, except as provided in Article 8, any
casualty or taking, or any failure by Landlord to perform or other
occurrence; except as expressly set forth in this Lease, Tenant
waives all rights now or hereafter existing to terminate, quit or
surrender this Lease or the Premises or any part thereof, or to
assert any defense in the nature of constructive eviction to any
action seeking to recover rent. Nothing in this Section 3.4 shall
be deemed to prohibit Tenant from bringing a claim for injunctive
relief against Landlord or seeking monetary damages in a separate
proceeding against Landlord.
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ALTERATIONS
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Consent
Required for Tenant’s Alterations.
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The
Tenant shall not make alterations or additions to the Premises
except in accordance with complete, coordinated construction plans
and specifications therefor first approved by the Landlord in
Landlord’s sole discretion. The Tenant shall give reasonable
prior notice to the Landlord of the presence of Tenant’s
contractors in the Building and any alterations and changes in and
to the Premises which the Tenant intends to undertake, together
with a reasonable description of the proposed work and such plans
and specifications as the Tenant has therefor. Neither the
Landlord’s failure to object to any proposed alterations or
additions, nor the Landlord’s approval of any plans and
specifications furnished by Tenant to Landlord, shall be construed
as superseding in any respect, or as a waiver of Landlord’s
right to enforce, the Tenant’s obligation to fulfill all of
the terms and conditions of this Lease applicable to any work
contemplated thereby. All alterations and additions to the Premises
shall be designed in reasonable accordance with the Building design
standards promulgated by Landlord from time to time.
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Ownership
of Alterations.
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All
alterations and additions shall be part of the Building and owned
by the Landlord; provided, however, that the Landlord may require
removal by the Tenant of all or any portion of any alterations and
additions made to the Premises by the Tenant. Upon Tenant’s
written request given simultaneously with its request for consent
to any alterations or additions, Landlord will advise the Tenant of
such requirement for removal prior to the installation of the
alteration or addition by the Tenant. All movable equipment, trade
fixtures and furnishings not attached to the Premises shall remain
the personal property of the Tenant and shall be removed by the
Tenant upon expiration or earlier termination of this Lease.
Notwithstanding anything to the contrary contained in this
Section 4.2, any alterations and additions, equipment, trade
fixtures, and furnishings installed by Landlord, whether or not
attached to the Premises, shall be part of the Building and owned
by the Landlord, and shall in no event constitute the
Tenant’s personal property.
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Any
alterations and additions, if required to be removed upon the
termination or expiration of this Lease as hereinabove provided,
shall be removed by the Tenant with reasonable care and diligence;
however Tenant shall not be required to cap off of all utility
connections behind the adjacent interior finish, or restore
such interior finish to the extent necessary so that
the Premises are left with complete wall, ceiling and floor
finishes.
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RESPONSIBILITY FOR CONDITION OF BUILDING AND
PREMISES
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Maintenance
of Building and Common Areas by Landlord.
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Except
as otherwise provided in Article 8, the Landlord shall make such
repairs to the foundation, roof, exterior walls (including exterior
glass), floor slabs, elevators, base building mechanical and life
safety systems (to the extent serving more than one tenant), and
any other base structural elements of the Building as may be
necessary to keep them in compliance with applicable laws
(including, but not limited to, the Baltimore City Building Code
and the Americans with Disabilities Act (the
““ADA”“)), in good order, condition and
repair, and make such repairs to the mechanical systems and
equipment serving the Building, except for any mechanical systems
and equipment that serve the Premises exclusively
(““Tenant’s Dedicated Mechanical Systems and
Equipment”“), and other Common Areas as are necessary
to keep them in good order, condition and repair. The Landlord
shall further perform the services designated as Landlord’s
Services on Exhibit E . Subject to Section 7.4, the Tenant
shall be responsible for 100% of the cost of any repair to the
Premises, the Building, or the Land caused by the negligence or
misconduct of the Tenant, or any agent, employee or contractor of
the Tenant.
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Landlord
will provide either manned or monitored security of the Building
twenty-four (24) hours a day, seven (7) days a week, three hundred
sixty-five (365) days a year. Landlord shall install and be solely
responsible for the maintenance and operation of a Building-wide
security system for monitoring and access control at Building
entrances and the loading dock(s), with card access controls at the
Building main entrances, stairwells and service doors. Tenant shall
be provided with similar access to the Premises, Building and
parking areas. Tenant shall comply with all rules and regulations
relating to security and access to the Building imposed by
Landlord, including use of key cards security systems installed in
the elevators and lobby entrances to the Building.
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Subject
to Section 7.4, the Tenant shall be responsible for 100% of the
cost of any repair to the Premises, the Building, or the Land
caused by the negligence or misconduct of the Tenant, or any agent,
employee or contractor of the Tenant.
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Maintenance
of Premises by Tenant.
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The
Tenant shall keep and maintain in good order, condition and repair
the Premises and every part thereof and all of Tenant’s
Dedicated Mechanical Systems and Equipment, reasonable wear and
tear and damage by fire or other casualty excepted (provided that
subject to Section 7.4, the Landlord shall be responsible for
damage caused by the fault or neglect of the Landlord, or the
Landlord’s agents, employees or contractors), excluding those
repairs for which the Landlord is responsible pursuant to Sections
5.1, 8.1 and 8.5. The Tenant shall not permit or commit any damage
(waste), and the Tenant shall, subject to Section 7.4, be
responsible for the cost of repairs which may be made necessary by
reason of damage to the Property caused by the negligence or
misconduct of the Tenant, or any of the contractors, employees, or
agents of the Tenant. Tenant’s Dedicated Mechanical Systems
and Equipment, and all other systems and equipment, shall be
maintained in good order, condition and repair consistent with
prevailing standards at comparable first class leased biotechnology
facilities, reasonable wear and tear, damage by fire or other
casualty, and subject to Section 7.4, damage caused by the fault or
neglect of the Landlord, or the Landlord’s agents, employees,
or contractors excepted.
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Delays
in Landlord’s Services.
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The
Landlord shall not be liable to the Tenant for any compensation or
reduction of rent by reason of inconvenience or annoyance or for
loss of business arising from the necessity of the Landlord or its
agents entering the Premises for any purposes authorized in this
Lease, or for repairing the Premises or any portion of the
Building. In case the Landlord is prevented or delayed from making
any repairs, alterations or improvements, or furnishing any
services or performing any other covenant or duty to be performed
on the Landlord’s part, by reason of any External Cause, the
Landlord shall not be liable to the Tenant therefor, nor, except as
expressly otherwise provided in this Lease, shall the Tenant be
entitled to any abatement or reduction of rent by reason thereof,
nor shall the same give rise to a claim in the Tenant’s favor
that such failure constitutes actual or constructive, total or
partial, eviction from the Premises.
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The
Landlord reserves the right to stop any service or utility system
the Landlord provides or causes to be provided under this Lease
when necessary by reason of accident or emergency or exercise of
Landlord’s rights pursuant to Section 2.3 hereof, or
until necessary repairs have been completed; provided, however,
that in each instance of stoppage, the Landlord shall exercise
reasonable diligence to eliminate the cause thereof. Except in case
of emergency repairs, the Landlord will give the Tenant reasonable
advance notice of the contemplated stoppage and will use reasonable
efforts to avoid unnecessary inconvenience to the Tenant by reason
thereof. To the extent that the Landlord is providing or causing to
be provided heat, light or any utility or service, in no event
shall the Landlord have any liability to the Tenant for the
unavailability of the same to the extent that such unavailability
is caused by External Causes, provided, however, that the Landlord
is obligated to exercise reasonable efforts to restore such
services or utility systems’ operation. The Landlord agrees
to carry rent interruption insurance in commercially reasonable
amounts which permits recovery within, to the extent reasonably
available, five (5) days after the insured peril.
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If the
unavailability of heat, light or any utility or service provided or
caused to be provided by the Landlord, other than the
unavailability of the same due to the Tenant’s acts or
omissions, renders all or any portion of the Premises untenantable
for the Tenant’s use as permitted under this Lease for a
period of five (5) days or more, and the Tenant ceases to occupy
the same for the conduct of its business during such period, the
Tenant shall receive an equitable abatement of rent, taking into
account the extent of the Tenant’s loss of use of the
Premises, following the condition of untenantability on and after
the day following the expiration of the deductible period provided
in the Landlord’s rent interruption insurance policy. For all
purposes of this Lease, if Tenant has responsibility for
maintenance and repair of any aspect of the Building or any
equipment or system therein, the functioning and performance of the
same shall be the responsibility of the Tenant under this Lease,
and shall in no event constitute a service or utility system that
the Landlord provides or causes to be provided under this
Lease.
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Tenant’s
Responsibilities Regarding Hazardous Materials.
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The
Tenant covenants and agrees that the Tenant shall not use,
generate, store or dispose, nor shall the Tenant suffer or permit
the use, generation, storing or disposal in the Premises or
otherwise by any of Tenant’s contractors, licensees,
invitees, agents or employees, of any oil, toxic substances,
hazardous wastes or hazardous materials (collectively,
““Hazardous Materials”“) in, on or about
the Premises, the Building or the Land, except for Hazardous
Materials that are necessary and customary for Tenant’s
operation of Tenant’s Permitted Use (which Permitted Use is
set forth on Exhibit A) and that are consistent with the use
and operation of a biotechnology laboratory at so-called BL-2 level
or below in a mixed-use setting, and in all cases such Hazardous
Materials must be used, generated, stored and disposed of in
compliance with all applicable law and regulations. The Tenant
covenants and agrees that the Tenant shall comply with all
applicable laws and regulations in handling and disposing of
materials used in its research and other uses of the Premises,
whether or not considered Hazardous Materials, and no dumping,
flushing or other introduction of Hazardous Materials or such other
inappropriate materials into the septic, sewage or other waste
disposal systems serving the Premises shall occur, except as
specifically permitted by law or regulation and subject to the
conditions and qualifications imposed by any governmental license
or permit. The Tenant shall provide to the Landlord copies of all
licenses and permits that the Tenant has been required to obtain
prior to the handling of any such Hazardous Materials, and the
Tenant must obtain all of such licenses and permits prior to the
commencement of operations in the Premises requiring the same. Any
use or storage of Hazardous Materials by Tenant permitted pursuant
to this Section 5.04 shall not exceed Tenant’s proportionate
share (measured on a per floor basis) of similarly classed
Hazardous Materials. From time to time during the Term of this
Lease, and thereafter during which the Tenant occupies any portion
of the Premises, the Tenant shall provide the Landlord with such
reasonable substantiation of the Tenant’s compliance with the
requirements of this Section 5.4 and any additional
requirements set forth in Section 6.2 as the Landlord may
reasonably request. The Tenant covenants and agrees that the Tenant
shall, at its sole cost, promptly remove or remediate all Hazardous
Materials that are found upon the Premises, the Building or the
Land by virtue of the failure of the foregoing covenants and
agreements to have been fulfilled, or otherwise as the result of
the act or omission of Tenant or its contractors, licensees, agents
or employees, in a manner complying with all applicable laws and
regulations and the provisions of this Lease. If the Tenant should
have any responsibility under this Section 5.4 to remove or
remediate Hazardous Materials, the Tenant shall keep the Landlord
reasonably informed as to the status of the environmental condition
at issue, promptly furnish to the Landlord copies of all regulatory
filings with any governmental regulatory agencies in connection
therewith, and substantiate the performance of its obligations
under this Section 5.4. At the expiration or earlier
termination of the Term, the Tenant shall promptly remove or
remediate any Hazardous Materials from the Premises in a manner
consistent with accepted "best practices" and in compliance with
all legal requirements relating to the closure of laboratory
facilities and disposal of equipment and supplies
therein.
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Tenant
acknowledges that areas of the Property are used for food service
and other non-laboratory uses and Tenant covenants to use best
industry practices in the conduct of all laboratory operations and
the storage, use, treatment, and disposal of Hazardous Materials at
the Premises. In all events Tenant shall comply with all applicable
provisions of the standards of the U.S. Department of Health and
Human Services as further described in the USDHHS publication
Biosafety in Microbiological and Biomedical Laboratories (4th
Edition, May 1999) as it may be further revised, or such nationally
recognized new or replacement standards as may be reasonably
selected by Landlord. Any Hazardous Materials permitted to be
stored on the Premises pursuant to this Section 5.4 of the
Lease shall be stored in areas of the Premises exclusively
designated by Tenant for such purpose. Furthermore, within thirty
(30) days after Landlord’s request (which request shall not
be made more than one (1) time in any 12 month period unless
required in connection with a sale, financing or ground lease of
the Property or Landlord has reasonable grounds to believe that
Tenant is in breach of its obligations under this Section 5.4),
Tenant shall make available to Landlord at Tenant’s offices
in the Baltimore area all of Tenant’s books and records
relating to the types and amounts of all Hazardous Materials being
generated, produced, brought upon, used, stored or treated by or on
behalf of Tenant on the Premises and, upon Landlord’s request
which request shall not be made more than one (1) time in any
twelve (12) month period unless required in connection with a sale,
financing or ground lease of the Property or Landlord has
reasonable grounds to believe that Tenant is in breach of its
obligations under this Section 5.4, copies of any federal, state or
municipal filings or compliance reports made by Tenant with respect
to such Hazardous Materials that are required by applicable law and
to the extent relating to the Premises, all of which Landlord shall
have the right to audit and review. Tenant agrees to pay the cost
of any environmental inspection or assessment requested by any
governmental agencies, mortgagees of the Property, or by any
insurance carrier, to the extent that such inspection or assessment
pertains to any release, threat of release, contamination, claim of
contamination, loss or damage or determination of condition in the
Premises after the date Tenant first occupies the Premises for the
conduct of its operations or is the result of any act or omission
by Tenant, its officers, employees, contractors, or agents around
the Property (together, ““Environmental
Incidents”“), provided that Tenant shall not be
responsible to pay for any such costs to the extent that the
conditions of concern existed in the Premises at the time that the
Premises was delivered to Tenant.
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If
Tenant’s transportation, storage or use of Hazardous
Materials on the Premises results in the release onto or other
contamination of any portion of the Property or adjacent areas,
including building or parking areas, soil or surface or ground
water, or loss or damage to person(s) or property, without
limitation, Tenant agrees to: (a) notify Landlord immediately of
any release, threat of release, contamination, claim of
contamination, loss or damage and (b) after consultation with
Landlord, clean up the release, threat of release, or contamination
as required by all applicable statutes, regulations and standards.
In the event of such contamination, Tenant agrees to cooperate with
Landlord, as Landlord may reasonably request, and provide such
documents, affidavits and information as may be reasonably
requested by Landlord (1) to comply with any applicable laws, (2)
to comply with the request of any lender, purchaser or tenant,
and/or (3) for any other reason deemed necessary by Landlord in its
reasonable discretion. Tenant shall notify Landlord promptly in the
event of any spill or other release of any Hazardous Materials at,
in, on, under or about the Premises that is required to be reported
to a governmental authority under any applicable laws, shall
promptly forward to Landlord copies of any notices received by
Tenant relating to alleged violations of any applicable laws and
shall promptly pay when due any fine or assessment against
Landlord, Tenant, or the Premises relating to any violation during
the Term of any applicable laws by Tenant, its employees, agents,
or independent contractors, or with respect to the Premises or the
remainder of the Property. If any governmental authority files a
lien against the Premises or the remainder of the Property due to
any act or omission, intentional or unintentional, of Tenant, its
agents, or employees, or for which Tenant is responsible, resulting
in the releasing, spilling, leaking, leaching, pumping, emitting,
pouring, emptying or dumping of any Hazardous Materials, Tenant
shall, within fifteen (15) days from the date that Tenant is first
given notice of such lien (or within such shorter period of time as
may be specified by Landlord if such governmental authority takes
steps to cause the Premises to be sold pursuant to such lien)
either (A) pay the claim and remove the lien or (B) furnish a cash
deposit, bond or such other security as is reasonably satisfactory
in all respects to Landlord and sufficient to discharge the lien
completely. Tenant shall defend, indemnify Landlord and hold
Landlord harmless from and against any damages, liability or
expense associated with claims by governmental or other third
parties arising out of the presence, removal or remediation of
Hazardous Materials for which Tenant is responsible for removal or
remediation under this Section 5.4.
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Landlord’s
Responsibilities Regarding Hazardous Materials.
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During
the Term of this Lease, if the removal or remediation of Hazardous
Materials from the Premises, Building or Land is required to be
undertaken by any governmental regulatory body, then except to the
extent such obligation is the responsibility of the Tenant under
Section 5.4 hereof, the Landlord covenants and agrees to undertake
the same without charge to the Tenant. Without limitation of the
foregoing, if necessary to comply with any applicable legal
requirements, should any existing environmental condition of the
Land require the removal or remediation of Hazardous Materials, the
Landlord shall perform such removal or remediation, without charge
to the Tenant, when and if required by applicable legal
requirements. The Landlord shall keep the Tenant reasonably
informed as to the status of the environmental condition at issue,
promptly furnish to the Tenant copies of all regulatory filings
with any governmental regulatory agencies in connection therewith,
and substantiate the performance of its obligations under this
Section 5.5.
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TENANT COVENANTS
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The Tenant covenants during the
Term and for such further time as the Tenant occupies any part of
the Premises:
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Permitted
Uses.
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The
Tenant shall occupy the Premises only for the Permitted Uses, and
shall not injure or deface the Premises or the Property, nor permit
in the Premises any auction sale. The Tenant shall give written
notice to the Landlord, within twenty (20) days prior to the
Commencement Date and thereafter once annually within twenty (20)
days of each anniversary of the Commencement Date, of any materials
on OSHA’s right to know list or which are subject to
regulation by any other federal, state, municipal or other
governmental authority and which the Tenant intends to have present
at the Premises. The Tenant shall comply with all requirements of
public authorities and of the Board of Fire Underwriters in
connection with methods of storage, use and disposal of such
materials. The Tenant shall not permit in the Premises any
nuisance, or the emission from the Premises of any reasonably
objectionable noise, odor or vibration, nor use or devote the
Premises or any part thereof for any purpose which is contrary to
law or ordinance, or liable to invalidate or increase premiums
(above those normally incurred for Permitted Uses) for any
insurance on the Building or its contents (unless the Tenant pays
for any such increase in premiums and provided such actions do not
interfere with the use and enjoyment of the Land by the Landlord,
other tenants, visitors or invitees of the Building) or liable to
render necessary any alteration or addition to the Building, nor
commit or permit any waste in or with respect to the Premises, nor
shall Tenant overload existing electrical or other Building
systems.
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Laws
and Regulations.
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The
Tenant shall comply with all federal, state and local laws,
regulations, ordinances. executive orders, guidelines, policies and
similar requirements in effect from time to time, including,
without limitation, all such requirements relating to (a)
Tenant’s occupancy and use of the Premises, (b) employment,
employment opportunity, discrimination and affirmative action, (c)
Hazardous Materials, (d) animal c
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