Exhibit 10.87
LEASE
BY AND BETWEEN
ARE-MARYLAND NO. 23, LLC
and
GENE LOGIC INC.
TABLE OF CONTENTS
EXHIBITS
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A
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Legal
Description and Site Plan
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B
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Rules and
Regulations
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C
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Estoppel
Certificate
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D
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Form of
Acknowledgment
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E
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Form of
Non-Disturbance Agreement
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LEASE
THIS
LEASE is made as of October 5, 2004, by and between ARE-MARYLAND
NO. 23, LLC , a Delaware limited liability company (hereinafter
called “ Landlord ”) and GENE LOGIC INC
., a Delaware corporation (hereinafter called “ Tenant
”).
1.
Lease of Premises .
1.1
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, a portion of that certain building located at the address
set forth below (hereinafter called the “ Demised
Premises ”). The Demised Premises are part of the
building located at and commonly known as 9 West Watkins Mill Road,
Gaithersburg, Maryland (the “ Building ”). The
real property upon which the Building is located, and all
landscaping, parking facilities, and other improvements and
appurtenances related thereto, are hereinafter collectively
referred to as the “ Project ”, the site plan
and legal description for which are attached hereto as Exhibit
“A.”All portions of the Project which are for the
non-exclusive use of tenants of the Building, including, without
limitation, driveways, sidewalks, parking areas, landscaped areas,
service corridors, stairways, elevators, public restrooms (if any)
and Building lobbies, are hereinafter referred to as “
Common Area ”. During the period between the Term
Commencement Date and the Rent Commencement Date, as defined below,
Tenant may cause, at Tenant’s cost, a licensed architect (the
“ Tenant’s Architect ”) to measure the
rentable square footage of the Demised Premises, such measurement
to be certified to Landlord and Tenant in accordance with the
Building Owners and Managers Association method of measurement
(ANSI 265.1 1996). In the event that the measurement by the
Tenant’s Architect discloses that the rentable square footage
of the Demised Premises is more than two percent (2%) larger or
smaller than 16,406, appropriate adjustments shall be made by way
of an amendment to this Lease. Tenant shall furnish to Landlord a
complete copy of the Tenant’s Architect’s measurement
report. In the event that any of the other floors of the Building
are multi-tenanted (or partitioned to be multi-tenanted), then
Tenant shall have the non-exclusive right to use the Common Area of
such floors, in common with other tenants of the Building. Tenant
shall also be given reasonable access to any mechanical,
electrical, telephone and other similar rooms and/or closets
(collectively, “ Mechanical Systems ”) on floors
other than on which the Demised Premises are located to the extent
necessary to accommodate Tenant’s use of systems passing
through or distributed from such rooms and/or closets (provided
Tenant shall not have the unilateral right to enter the premises of
any other tenant of the Building, and shall only enter the premises
of any other tenant accompanied by Landlord). Tenant shall not be
required to relocate any existing panels, nor to install any new
panels, so as to confine the placement thereof to the Demised
Premises. If any of the Mechanical Systems is inaccessible from the
Common Area, Landlord shall arrange for Tenant to have reasonable
access to such Mechanical Systems as reasonably necessary, and
Landlord shall be responsible for coordinating access to such
Mechanical Systems with any other tenant whose premises may be
affected by Tenant’s access to such Mechanical Systems. The
Demised Premises (and the stairs leading thereto from the first
floor) shall be for Tenant’s exclusive use and shall be
secured by Tenant from entry by persons not authorized by Tenant,
at Tenant’s sole cost, except for Landlord’s
obligations specifically provided in Section 14.2(c) with respect
to the elevator servicing the Demised Premises.
2.
Basic Lease Provisions .
2.1
For convenience of the parties, certain basic provisions of this
Lease are set forth herein. The provisions set forth herein are
subject to the remaining terms and conditions of this Lease and are
to be interpreted in light of such remaining terms and
conditions.
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2.1.1
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Address of the
Building:
9 West Watkins Mill Road
Gaithersburg, MD 20878
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2.1.2
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Designation of
Tenant’s Demised Premises:
A portion of the cellar level of the Building including the break
room and vending area next to the mechanical area of the Building,
the Chemical Waste Storage Room on the first floor of the Building,
and a portion of the Stockroom on the first floor of the Building,
all as shown more particularly on Exhibit “A” attached
hereto.
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2.1.3
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(a)
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Rentable Area
of Demised Premises:
16,406 sq. ft.
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(b)
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Rentable Area
of Building/Project:
92,449 sq. ft.
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2.1.4
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Initial Basic
Annual Rent: $28.00 per rentable sq. ft.
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2.1.5
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Initial Monthly
Rental Installments of Basic Annual Rent:
$38,280.67.
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2.1.6
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Tenant’s
Pro Rata Share: 17.75% of the Building
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2.1.7
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(a)
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Term
Commencement Date:
Date of Delivery of the Demised Premises.
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(b)
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Term Expiration
Date:
60 months from the first day of the month following the month in
which the Rent Commencement Date occurs.
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2.1.8
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Security
Deposit:
None (See Section 9 hereof).
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2.1.9
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Permitted Use:
General office use, bio-medical/bio-chemical laboratory use,
storage
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and other
incidental uses consistent with the foregoing named uses, or as
otherwise agreed to between Landlord and Tenant in a side letter
agreement concerning the use of the Demised Premises.
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-2-
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2.1.10
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Address for
Rent Payment:
Alexandria Real Estate Equities, Inc.
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: Accounts Receivable
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Address for
Notices to Landlord:
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Alexandria Real
Estate Equities, Inc.
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: Corporate Secretary
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Address for
Notices to Tenant:
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Gene Logic
Inc.
610 Professional Drive
Gaithersburg, Maryland 20879
Attention: Chief Financial Officer
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With, in each
case, a copy to:
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Buchanan
Ingersoll PC
1776 K Street, N.W.
Washington, D.C. 20006
Attention: Gary K. Bahena, Esq.
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2.1.11
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The following
Exhibits are attached hereto and incorporated herein: A, B, C, D
and E.
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3.
Term .
3.1
This Lease shall take effect upon the date of execution and
delivery hereof by all parties hereto and, except as specifically
otherwise provided within this Lease, each of the provisions hereof
shall be binding upon and inure to the benefit of Landlord and
Tenant from the date of execution and delivery hereof by all
parties hereto.
3.2
The term of this Lease (the “ Term ”) shall
commence on the Term Commencement Date and shall expire on the Term
Expiration Date subject to earlier termination of this Lease as
provided herein.
4.
Possession and Commencement Date .
4.1
Landlord shall deliver two fully executed copies of the Lease and
tender to Tenant possession of the Demised Premises as soon as
reasonably practicable following receipt by Landlord from Tenant of
four (4) copies of this Lease executed by Tenant, which date is
intended to be the Term Commencement Date set forth in Section
2.1.7. The actual Term Commencement Date shall be the actual date
of delivery of the Demised Premises (also known as the “
Delivery Date ”). In the event that the Demised
Premises have not been delivered to Tenant by October 10, 2004,
then Tenant shall have the right to terminate this Lease by written
notice received by Landlord within ten (10) business days
thereafter.
-3-
4.2
Notwithstanding anything to the contrary set forth elsewhere in
this Lease, Tenant shall not have any obligation to pay to Landlord
Basic Annual Rent in respect of the Demised Premises until (the
“ Rent Commencement Date ”) the date that is
three (3) months after the Delivery Date (such date, however, being
extended by one day for each day following October 10, 2004 that
the Delivery Date has not occurred).
4.3
From and after the date hereof, Tenant shall be permitted to enter
upon the Demised Premises for the purposes of measurement and
inspection.
4.4
Landlord and Tenant, upon request of either party, shall execute
and deliver written acknowledgment of the actual Term Commencement
Date, the Delivery Date and the Rent Commencement Date in the form
of Exhibit “D”.
4.5
There shall be no charge to Tenant for Landlord’s personnel
or engineer in connection with Tenant moving in and moving out of
the Building.
4.6
The provisions governing the preparation of plans and the
performance of Tenant’s Work are set forth in Section 39
below.
5.
Rent .
5.1
Tenant agrees, commencing on the Rent Commencement Date, to pay
Landlord as Basic Annual Rent for the Demised Premises the sum set
forth in Section 2.1.4 subject to the rental adjustments provided
in Article 6 hereof. Basic Annual Rent shall be paid in the equal
monthly installments set forth in Section 2.1.5, subject to the
adjustments to Basic Annual Rent provided in Article 6
hereof.
5.2
In addition to Basic Annual Rent, Tenant agrees to pay to Landlord
as additional rent (“ Additional Rent”) at times
hereinafter specified in this Lease (i) Tenant’s Pro Rata
Share, as set forth in Section 2.1.6 (“ Tenant’s Pro
Rata Share ”) of Operating Expenses as provided in
Article 7 and (ii) any other amounts that Tenant assumes or agrees
to pay under the provisions of this Lease that are owed to
Landlord, including, without limitation, any and all other sums
that may become due by reason of any default of Tenant or failure
on Tenant’s part to comply with the agreements, terms,
covenants and conditions of this Lease to be performed by Tenant,
after notice and lapse of applicable cure period.
5.3
Basic Annual Rent and Additional Rent shall together be denominated
“ Rent ”. Rent shall be paid to Landlord,
without abatement, deduction or offset in lawful money of the
United States of America, at the office of Landlord as set forth in
Section 2.1.10 or to such other person or at such other place as
Landlord may from time designate in writing. In the event the Term
commences or ends on a day other than the first day of a calendar
month, then the Rent for such fraction of a month shall be prorated
for such period on the basis of a thirty (30) day month and shall
be paid at the then current rate for such fractional
month.
-4-
6.
Rent Adjustments .
6.1 Commencing
with the monthly installment of Basic Annual Rent which is due on
the first anniversary of the first day of the first full month
following the Rent Commencement Date, and on the same day of every
calendar year thereafter for so long as this Lease continues in
effect, Basic Annual Rent shall be increased by 3.0%.
7.
Operating Expenses .
7.1 As
used herein, the term “ Operating Expenses ”
shall include:
(a) Government
impositions including, without limitation, property tax costs
consisting of real and personal property taxes and assessments
constituting a lien upon the Project, including amounts due under
any improvement bond upon the Building and/or Project including the
parcel or parcels of real property upon which the Building and
areas serving such Building are located or assessments levied in
lieu thereof imposed by any governmental authority or agency, any
tax on or measured by gross rentals received from the rental of
space in the Building (i.e., made without regard to or allowance
for any expense or other deductions, allowances or the like), or
tax based on the square footage of the Demised Premises, Building,
or Project as well as any parking charges, utilities, surcharges,
or any other costs levied, assessed or imposed by, or at the
direction of, or resulting from statutes or regulations, or
interpretations thereof, promulgated by any federal, state,
regional, municipal or local government authority in connection
with the use or occupancy of the Building or the parking facilities
serving the Building, any tax on this transaction or any document
to which Tenant is a party creating or transferring an interest in
the Demised Premises, any fee for a business license to operate an
office building, and any expenses, including the reasonable cost of
attorneys or experts, reasonably incurred by Landlord in seeking
reduction by the taxing authority of the applicable taxes, less tax
refunds obtained as a result of an application for review thereof.
Operating Expenses shall not include any net income, franchise,
capital stock, estate or inheritance taxes, or taxes which are the
personal obligation of Landlord or of another tenant of the
Project, or taxes on or in respect of personal property (or the
value or cost thereof) not permanently located at and used in
connection with the Building or Project, or any “rent”
or similar tax unless applicable solely to landlords of real
property or to real property rental receipts, or any “gross
receipts”, “receipts” or other similar tax unless
measured, assessed and paid without regard to any deductions or
offsets against receipts, including without deduction for operating
expenses, or any income, transfer, business, unincorporated
business or gains tax or any real estate tax or other sum, charge,
levy or tax attributable to any land or improvements other than the
Building and the land described in Exhibit “A”. If
any assessments are payable in installments, then for the purpose
hereof (regardless of whether Landlord elects to pay same in
installments) Operating Expenses for any calendar year occurring
during the Term shall include only those installments, together
with interest, that would have become due if Landlord opted to pay
same in the maximum number of installments permitted. All real
estate taxes and similar charges includible in Operating Expenses
pursuant to this Section 7.1(a) shall be computed as if the
Building and Project were the only asset of Landlord. Upon request
by Tenant, Landlord shall furnish Tenant with copies of all
proposed assessments, assessments, real estate tax bills and the
like. Landlord shall also notify Tenant promptly following the
filing or commencement of, and again following any decision in or
conclusion or settlement of, any tax or assessment appeal, contest,
reduction or challenge. On or before the 40th day before the last
day to file an application to contest any such tax or assessment,
Tenant may request Landlord to notify Tenant whether Landlord
intends to file such application and within ten (10) days after
such request Landlord shall notify Tenant whether or not Landlord
will do so. If within such ten (10) day period Landlord either does
not so notify Tenant or notifies Tenant that Landlord does not
intend to file such an application, Tenant, at its sole cost and
expense, shall have the right (and Landlord hereby constitutes
Tenant as Landlord’s attorney-in-fact to the extent required
by law to enable Tenant) to challenge and/or appeal any tax,
assessment or other item included in Operating Expenses pursuant to
this Section 7.1(a), and Landlord shall cooperate with Tenant
as requested by Tenant in any such challenge and/or appeal. Tenant
hereby agrees to save Landlord harmless from and against all costs,
expenses, loss or damage resulting from any such contest or
appeal.
-5-
(b)
All other reasonable costs of any kind paid or incurred by Landlord
in connection with the operation and maintenance of the Building
and the Project including, by way of examples and not as a
limitation upon the generality of the foregoing, costs of repairs
and replacements to improvements within the Project as appropriate
to maintain the Project as required hereunder, sewer fees, cable
T.V., when applicable, trash collection, cleaning, including
windows, heating, ventilation, air-conditioning, maintenance of
landscape and grounds, maintenance of drives and parking areas,
security services and devices, building supplies, maintenance and
replacement to equipment utilized for operation and maintenance of
the Project, license, permit and inspection fees, sales, use and
excise taxes on goods and services purchased by Landlord in
connection with the operation, maintenance or repair of the Project
and Building systems and equipment, telephone, postage, stationary
supplies and other expenses incurred in connection with the
operation, maintenance, or repair of the Project, accounting, legal
and other professional fees and expenses incurred in connection
with the Project, dues and assessments under the Bennington
Corporate Center Covenants, Conditions and Restrictions which apply
to the Project, capital expenditures, costs of complying with any
applicable laws, hazardous waste remediation, rules or regulations,
insurance premiums including premiums for public liability,
property casualty, earthquake and environmental coverages, portions
of insured losses paid by Landlord as part of deductible portion of
loss (not to exceed $50,000.00 for any single loss) by reason of
insurance policy terms, service contracts, costs of services of
independent contractors retained to do work of the nature before
referenced, and costs of compensation (including employment taxes
and fringe benefits) of all persons who perform regular and
recurring on-site duties connected with the day-to-day operation
and maintenance of the Project, its equipment, the adjacent walks,
landscaped areas, drives, and parking areas, including without
limitation, janitors, floor waxers, window-washers, watchmen,
gardeners, sweepers, and handymen and costs of management services,
which costs of management services shall not exceed four percent
(4%) of the Basic Annual Rent. In the event that any capital
expenditure by Landlord is in excess of Seventy-Five Thousand
Dollars ($75,000) there shall be included each calendar year as an
Operating Expense in respect of such expenditure only the amortized
cost of such item for that year (using the shorter of seven (7)
years or the useful life determined in accordance with the U.S.
Internal Revenue Code regulations in effect at the time the
expenditure was made).
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(c) The
foregoing notwithstanding, term “ Operating Expenses
” shall not include (1) depreciation; (2) interest
on and amortization of debts; (3) leasehold improvements,
alterations, decorations and painting done for particular tenants
or occupants of the Building; (4) leasing and brokerage
commissions; (5) refinancing costs; (6) the cost or
repairs or replacements incurred by reason of fire or other
casualty to the extent covered by insurance proceeds; (7) the
cost of items, work, services or overtime heating, ventilation or
air conditioning for which Landlord is or may be entitled to be
compensated by payments by tenants or occupants, including Tenant
which are not fixed annual rent; (8) amounts received by
Landlord through proceeds of insurance, to the extent the proceeds
are compensation for expenses which would be includible in
Operating Expenses; (9) advertising and promotional
expenditures; (10) ground rents; (11) legal fees
(provided, however, that Landlord may be entitled to collect legal
fees pursuant to Section 24.2.5 hereof); (12) auditing or
accounting fees other than those reasonably incurred in the
preparation of statements and calculations pursuant to this
Section 7.1; (13) wages, benefits or other compensation
or payments to or in respect of employees or other persons not
providing on-site services to the Project or to executives or other
persons above (or performing functions typically assigned to or
performed by persons above) the grade of building manager;
(14) wages, benefits or other compensation or payments to or
in respect of any person owning or controlling, directly or
indirectly, any right, title, interest or estate, legal,
beneficial, equitable or otherwise, in or to all or any part of
Landlord, the Building and/or the Project and/or in or to any
management agent or company for either or both of the same;
(15) management fees or other markups of any kind or
description other than for the management fee expressly provided
for in Section 7.1(b) above; (16) costs of
Landlord’s general overhead and general administrative
expenses (individual, partnership or corporate, as the case may
be); (17) charitable contributions; (18) any wages,
benefits or other compensation or payments paid clerks, attendants
or other persons in commercial concessions (such as snack bar or
restaurant), if any, operated by Landlord or in the Building;
(19) costs attributable to the gross negligence of Landlord,
its agents, contractors or employees; (20) costs and expenses
paid to non-arms length contractors in excess of fair market value;
(21) when operated as a commercial concession or by a
commercial parking operator, parking lot garage maintenance or
other costs in connection with any parking lot or garage;
(22) costs (including, but not limited to, rent) incurred in
connection with or otherwise attributable to office or other space
used for or in connection with the Building (including any
management office space, but excluding any ordinary, customary and
reasonable amounts of space or area used solely for Building
mechanical, electrical, telephone, storage and/or engineering
rooms); (23) costs or expenses associated with leasing other
space in the Building and/or in connection with any sale, financing
and/or refinancing of the Building, the Project or any interest of
Landlord; (24) reserves; and (25) in the case of dues and
assessments under any corporate center or similar covenants,
conditions and/or restrictions, any amounts thereof for or
representing items which would not be Operating Expenses under the
terms of this Section 7.1, including without limitation reserves or
capital expenditures to the extent not permitted to be included in
Operating Expenses of the Building under the terms of this Lease.
In addition, Operating Expenses shall not include any costs
incurred by Landlord to test, survey, clean-up, contain, abate,
remove or otherwise remediate Hazardous Materials (as hereinafter
defined) in the Project unless such costs were incurred as a result
of the acts or omissions of Tenant.
7.2 Tenant
shall pay to Landlord on the first day of each calendar month of
the Term, as Additional Rent, Landlord’s reasonable estimate
of Tenant’s Pro Rata Share (as set forth in
Section 2.1.6) of Operating Expenses with respect to the
Project for such month. On or before December 15th of each year,
Landlord shall submit to Tenant Landlord’s good faith
estimate of the Operating Expenses for the succeeding calendar
year. Landlord shall be permitted to submit revised estimates at
any time and from time to time. In the event that Landlord revises
its estimate of Operating Expenses, payments by Tenant in respect
of Operating Expenses pursuant to the revised estimate shall
commence on the first payment date that is at least thirty (30)
days following Tenant’s receipt of such estimate.
-7-
(a) Within
ninety (90) days after the conclusion of each calendar year (or
such longer period as may be reasonably required), Landlord shall
furnish to Tenant a statement showing in reasonable detail the
actual Operating Expenses and Tenant’s Pro Rata Share of
Operating Expenses for the previous calendar year. Any additional
sum due from Tenant to Landlord shall be due and payable within
thirty (30) days following delivery of such written statement. If
the aggregate amount paid by Tenant pursuant to Section 7.2
exceeds Tenant’s Pro Rata Share of Operating Expenses for the
previous calendar year, the difference shall be credited by
Landlord against the Rent next due and owing from Tenant; provided
that if the Lease term has expired, Landlord shall accompany said
statement with payment for the amount of such
difference.
(b) Any
amount due under Section 7.2 for any period which is less than
a full month shall be prorated (based on a 30-day month) for such
fractional month.
(c) Landlord
’s annual statement, except as otherwise provided in
Section 7.3 below, shall constitute a final statement as to
such year, Anything to the contrary contained herein
notwithstanding, in the event that such statement is not received
by Tenant on or prior to August 31 of any calendar year for the
immediately preceding calendar year then Landlord may not
thereafter request payment of any deficiency on account of such
prior year. Landlord shall keep true and accurate books and records
with respect to all Operating Expenses in accordance with generally
accepted accounting principals consistently applied.
7.3 Landlord
’s annual statement shall be final and binding upon Tenant
unless Tenant, within ninety (90) days after Tenant’s receipt
thereof, shall contest any item therein by giving written notice to
Landlord, specifying each item contested and the reason therefor.
If, during such 90 day period, Tenant reasonably and in good faith
questions or contests the correctness of Landlord’s statement
of Tenant’s Pro Rata Share of Operating Expenses, (provided
that Tenant shall have paid to Landlord any additional sum due
pursuant to Section 7.2(a)) Landlord will provide Tenant
and/or Tenant’s designated representative with access to
Landlord’s books and records and such information as Landlord
reasonably determines to be responsive to Tenant’s questions.
Tenant’s designated representative shall be an independent
public accounting firm working pursuant to a fee arrangement other
than a contingent fee basis. In the event that after Tenant’s
review of such information, Landlord and Tenant cannot agree upon
the amount of Tenant’s Pro Rata Share of Operating Expenses,
then Tenant shall have the right to have an independent public
accounting firm working pursuant to a fee arrangement other than a
contingent fee basis hired by Tenant (at Tenant’s sole cost
and expense) and approved by Landlord (which approval shall not be
unreasonably withheld or delayed) audit and/or review such
Landlord’s books and records for the year in question (the
“ Independent Review ”). The results of any such
Independent Review shall be binding on Landlord and Tenant. If the
Independent Review shows that Tenant s Pro Rata Share of Operating
Expenses actually paid for the calendar year in question exceeded
Tenant’s obligations for such calendar year, Landlord shall
at Tenant’s option either (1) credit the excess to the
next succeeding installments of estimated Additional Rent or
(2) pay the excess to Tenant within thirty (30) days after
delivery of such statement (provided, however, that in the event
that the Independent Review indicates that the amount of Operating
Expenses paid by Tenant with respect to a calendar year exceeded by
more than five percent (5%) the amount actually due from Tenant
(exclusive of any difference between the amount included in
Operating Expenses in respect of insurance premiums and the amount
that should have been included in Operating Expenses in respect of
insurance premiums), then Landlord shall reimburse Tenant for the
cost of such Independent Review). If the Independent Review shows
that Tenant’s payments of Tenant’s Pro Rata Share of
Operating Expenses for such calendar year were less than
Tenant’s obligation for the calendar year, Tenant shall pay
the deficiency to the Landlord within thirty (30) days after
delivery of such statement.
-8-
7.4 Tenant
shall not be responsible for Operating Expenses attributable to the
time period prior to the Rent Commencement Date. The responsibility
of Tenant for Tenant’s Pro Rata Share of Operating Expenses
shall continue to the later of (i) the date of termination of
the Lease, or (ii) the date Tenant has fully vacated the
Demised Premises. Tenant shall not be deemed to have fully vacated
the Demised Premises until Tenant shall have removed all items
required to be removed and shall have completed all procedures
necessary to fully release and terminate any permits or licenses
restricting the use of the Demised Premises in any
manner.
7.5 Operating
Expenses for the calendar year in which Tenant’s obligation
to share therein commences and in the calendar year in which such
obligation ceases, shall be prorated on the basis of the number of
days in such calendar year as are included within the Term over
360. Expenses such as taxes, assessments and insurance premiums
which are incurred for an extended time period shall be prorated
based upon time periods to which applicable so that the amounts
attributed to the Demised Premises relate in a reasonable manner to
the time period wherein Tenant has an obligation to share in
operating Expenses.
8.
Intentionally omitted .
9.
Security Deposit .
Provided
that Gene Logic Inc. is the Tenant under the Lease (including any
subsidiary or affiliate pursuant to Section 25.11), Landlord
will not require that Tenant post a security deposit as security
for Tenant’s performance under the Lease.
10.
Use .
10.1 Tenant
shall use the Demised Premises for the purpose set forth in
Section 2.1.9 and shall not use the Demised Premises, or
permit or suffer the Demised Premises to be used, for any other
purpose without the prior written consent of Landlord which may be
withheld in Landlord’s sole discretion, (provided, however,
that Landlord’s approval of a change in use shall not be
unreasonably withheld, conditioned or delayed in the case of a
change proposed in connection with an assignment or subletting of
the Lease and/or the Demised Premises under circumstances where,
pursuant to the terms of Section 25 below, Landlord’s
consent to such assignment or subletting may not be unreasonably
withheld, conditioned or delayed, or is not required). In no event
shall Landlord be deemed to have acted unreasonably in the event
that Landlord does not approve a change in use which would reduce
the number of square feet of the Demised Premises maintained as
laboratories (including vivarium rooms) below the level as of the
Delivery Date unless Tenant as a condition to Landlord’s
consent agrees, upon expiration or earlier termination of this
Lease, either (i) to restore such laboratory space or
(ii) to pay Landlord the amount Landlord reasonably estimates
it will cost to cause such restoration and, in either case,
provides such security for such restoration obligation as Landlord
shall reasonably require.
-9-
10.2 Tenant
shall not use or occupy the Demised Premises in violation of any
federal, state and local laws and regulations, zoning ordinances,
or of the certificate of occupancy issued for the Building, and
shall, upon five (5) days’ written notice from Landlord,
discontinue any use of the Demised Premises which is declared or
claimed by any governmental authority having jurisdiction to be a
violation of law, regulation or zoning ordinance or of said
certificate of occupancy. Tenant shall comply with any direction of
any governmental authority having jurisdiction which shall, by
reason of the nature of Tenant’s use or occupancy of the
Demised Premises, impose any duty upon Tenant or Landlord with
respect to the Demised Premises or with respect to the use or
occupation thereof. Provided noncompliance therewith shall not
constitute a crime or an offense punishable by imprisonment of
Landlord and provided non-compliance will not endanger the Demised
Premises, Tenant may, at its sole cost and expense, contest the
application or validity of any such law and such non-compliance
shall not be deemed a breach of this Lease during such contest
provided such contest shall be diligently prosecuted.
10.3 Tenant
shall not do or permit to be done anything which will invalidate or
increase the cost of any fire, environmental, extended coverage or
any other insurance policy covering the Building and Project and
shall comply with all rules, orders, regulations, and requirements
of the insurers of the Building and Project and Tenant shall within
thirty (30) days following written demand reimburse Landlord for
any additional premium charged for such policy by reason of
Tenant’s failure to comply with the provisions of this
Section.
10.4
Intentionally omitted .
10.5 No
additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Tenant nor shall any changes be made in
existing locks or the mechanism thereof without the prior written
consent of Landlord (or, alternatively, without furnishing to
Landlord one or more master keys therefor). Tenant must, upon
termination of this Lease return to Landlord all keys to offices
and restrooms, either furnished to, or otherwise procured by
Tenant. The foregoing notwithstanding, Tenant shall have the right
to designate certain areas as “secure” areas and,
subject to the provisions of Section 32.3 hereof, to limit
access thereto (including, but not limited to, by installing locks
or other apparatus to which Landlord is not provided keys or other
means of entry).
10.6 No
awnings or other projection shall be attached to any outside wall
of the building. Neither the interior nor exterior of any windows
shall be coated or otherwise sunscreened without the express
written consent of Landlord.
No sign, advertisement or notice
shall be exhibited, painted or affixed by Tenant on the exterior of
the Building without the prior written consent of
Landlord.
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10.7 Tenant
shall cause any office equipment or machinery to be installed in
the Demised Premises so as to reasonably prevent sounds or
vibrations therefrom from extending outside of the Building or, if
other tenants are occupying any part of the Building, from
extending into Common Areas as defined in Section 1.1 or other
tenant offices in the Building. Tenant shall not place a load on
any floor of the Demised Premises exceeding a floor load of one
hundred (100) pounds per square foot (one hundred twenty five (125)
pounds per square foot with respect to the loading docks) without
advance notice to and reasonable approval by Landlord.
10.8 Tenant
shall not do or permit anything to be done in or about the Demised
Premises which shall in any way obstruct or interfere with the
rights of other tenants or occupants of the Building, or injure or
annoy them, or use or allow the Demised Premises to be used for
immoral or unlawful purposes, nor shall Tenant knowingly cause,
maintain or permit any nuisance or waste in, on, or about the
Demised Premises, Building or Project.
10.9 Notwithstanding
any other provision herein to the contrary, Tenant shall be
responsible for all liabilities, costs and expense arising out of
or in connection with the compliance of the Demised Premises with
the Americans With Disabilities Act, 42 U.S.C. § 12101, et
seq. (together with regulations promulgated pursuant thereto,
“ ADA ”) and Tenant shall indemnify, defend and
hold harmless from and against any loss, cost, liability or expense
(including reasonable attorneys’ fees and disbursements)
arising out of any failure of the Demised Premises to comply with
the ADA.
10.10 Landlord
hereby covenants not to lease any portion of the Building to any
person or organization which is known to Landlord to openly oppose
laboratory research on live animals, or to have as a principal part
of its business the advocacy of rights of animals which may be used
in laboratory research.
10.11 Tenant
shall have the right, subject to the reasonable approval of
Landlord, to a portion of the roof top of the Building to place
telecommunications equipment. Such telecommunications equipment
shall be used solely by Tenant. Tenant shall not drill, bore, or
cut any surface of the Building to install its telecommunications
equipment, or use any conduit or raceway of the Building in
connection therewith without Landlord’s prior approval.
Tenant shall not interfere unreasonably with any other person to
whom Landlord grants the right to use the roof top of the Building.
If Landlord delivers to Tenant written notice that Tenant is
interfering with the rights of another person who is rightfully
attempting to use the roof top of the Building, Tenant shall cause
such interference to cease within five business days, or
thereafter, Tenant shall be in default under this Lease. Tenant
shall be responsible for the cost of repair of any damage to the
roof top caused by the installation, maintenance or removal of
Tenant’s telecommunications equipment, which repair work
shall be performed by Landlord’s contractor in order to
preserve Landlord’s roof warranty. At the end of the term of
the Lease, Tenant shall remove Tenant’s telecommunications
equipment from the Building.
11.
Brokers .
11.1 Landlord
and Tenant represent and warrant that they have had no dealings
with any real estate broker or agent in connection with the
negotiation of this Lease other than Scheer Partners and that they
know of no other real estate broker or agent who is or might be
entitled to a commission in connection with this Lease.
-11-
11.2 Tenant
represents and warrants that no broker or agent has made any
representation or warranty relied upon by Tenant in Tenant’s
decision to enter into this Lease other than as contained in this
Lease.
11.3 Tenant
acknowledges and agrees that the employment of brokers by Landlord
is for the purpose of solicitation of offers of lease from
prospective tenants and no authority is granted to any broker to
furnish any representation (written or oral) or warranty from
Landlord unless expressly contained within this Lease. Landlord in
executing this Lease does so in reliance upon Tenant’s
representations and warranties contained within Sections 11.1
and 11.2 herein.
12.
Holding Over .
12.1 If,
with Landlord’s express written consent, Tenant holds
possession of all or any part of the Demised Premises after the
Term, Tenant shall become a tenant from month-to-month upon the
date of such expiration or earlier termination, and in such case
Tenant shall continue to pay in accordance with Article 5 the
Basic Annual Rent as adjusted from the Rent Commencement Date in
accordance with Article 6, and Tenant’s Pro Rata Share
of Operating Expenses, and such month-to-month tenancy shall be
subject to every other term, covenant and agreement contained
herein.
12.2 Notwithstanding
the foregoing, if Tenant remains in possession of the Demised
Premises after the expiration or earlier termination of the Term
without the express written consent of Landlord, Tenant shall
become a tenant at sufferance upon the terms of this Lease except
that the monthly Basic Annual Rent shall be equal to one hundred
fifty percent (150%) of the Basic Annual Rent in effect during the
last thirty (30) days of the Term.
12.3 Acceptance
by Landlord of Rent after such expiration or earlier termination
shall not result in a renewal or reinstatement of this
Lease.
12.4 The
foregoing provisions of this Article 12 are in addition to and
do not affect Landlord’s right to re-entry or any other
rights of Landlord hereunder or as otherwise provided by
law.
12.5 If
pursuant to the operation of Section 40.5 or the last sentence
of Section 7.4 Tenant shall not be deemed to have fully
vacated the Demised Premises, Tenant shall continue to pay in
accordance with Article 5 the Basic Annual Rent as adjusted in
accordance with Article 6 and Tenant’s Pro Rata Share of
Operating Expenses until such time as Tenant shall have complied
with its obligations pursuant to Section 40.5 or the last
sentence of 7.4, as applicable.
13.
Taxes on Tenant’s Property .
13.1 Tenant
shall pay, prior to delinquency, any and all taxes levied against
any personal property or trade fixtures placed by Tenant in or
about the Demised Premises.
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13.2 If
any such taxes on Tenant’s personal property or trade
fixtures are levied against Landlord or Landlord’s property
or, if the assessed valuation of the Building is increased by the
inclusion therein of a value attributable to Tenant’s
personal property or trade fixtures, and if Landlord after written
notice to Tenant pays the taxes based upon such increase in the
assessed valued, then Tenant shall within thirty (30) days
following Tenant’s receipt of written demand by Landlord
repay to Landlord the taxes so levied against Landlord (Landlord,
however, agreeing to give Tenant written notice upon first learning
of any such tax or other charge and Tenant reserving the right to
contest same whether in the name of Landlord or Tenant).
14.
Condition of Demised Premises .
14.1 Tenant
acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty with respect to the condition
of the Demised Premises or the Building or Project, or with respect
to the suitability for the conduct of Tenant’s business.
Except for Landlord Work, the Landlord Payment and the Allowance,
Tenant agrees to take possession of the Demised Premises in its
current “as-is” condition. Landlord shall deliver the
Demised Premises to Tenant on the Delivery Date with all Building
systems in proper working order.
14.2 Landlord
agrees at Landlord’s sole cost to do the following as
“Landlord’s Work”:
(a) Landlord
shall install a sign similar to the sign at Tenant’s former
address (22 Firstfield Road) at the drive-entrance from West
Watkins Mill Road identifying the tenants in the
Building.
(b) Landlord
shall leave in place for Tenant’s use, and at no extra charge
to Tenant, all furniture, fixtures, equipment and other things
(collectively, the “ Furniture ”) which were in
the Demised Premises as of August 26, 2004. Anything to the
contrary contained herein notwithstanding, Tenant shall not be
required to remove any of the Furniture from the Demised Premise at
the expiration or other termination of the Term. Landlord makes
absolutely no representation or warranty about the Furniture, all
of which Tenant may use at Tenant’s sole risk. No part of the
rent paid under this Lease is attributable to the use of such
furniture fixtures and equipment. If Tenant no longer wants any of
the Furniture, Tenant may so notify Landlord in writing, and if
Landlord does not remove such Furniture within ten (10) business
days, Tenant may dispose of such Furniture at Tenant’s
cost.
(c) Landlord
shall at no cost to Tenant program the data card reader in the
elevator servicing the Demised Premises to restrict access from the
elevator to the Demised Premises, and shall provide Tenant with
access cards.
(d) Upon
possession of space in the Building by other tenants, Landlord
shall install the monitoring systems to verify compliance by
tenants with the limitations imposed by Section 16.9 on the use of
electrical power from the Generator.
15.
Common Areas and Parking Facilities .
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15.1 Tenant
shall have the non-exclusive night, in common with other Building
tenants, if any, to use the Common Areas, subject to the rules and
regulations adopted by Landlord and attached hereto as
Exhibit “B” together with such other reasonable
and nondiscriminatory modifications thereof and additions thereto
as are hereafter promulgated by Landlord in its reasonable
discretion (the “ Rules and Regulations ”).
Tenant shall observe and comply with the Rules and Regulations. In
the event of any conflict or inconsistency between any Rule or
Regulation and any other term or provision of this Lease, such
other term or provision of this Lease shall control.
15.2 Tenant
shall have the right to use twenty (20) of the parking spaces
in the parking area of the Project designated for non-reserved
parking, subject in each case to Landlord’s reasonable rules
and regulations. Landlord may allocate parking spaces among Tenant
and other tenants in the Project pro rata as described above if
Landlord determines that such parking facilities are becoming
crowded, but Tenant shall at all times be assured of at least
twenty (20) spaces. Landlord shall not be responsible for
enforcing Tenant’s parking rights against any third parties,
including other tenants of the Project. Landlord shall make a
commercially reasonable effort to enforce all rules relating to
parking at the Building on a non-discriminatory basis. Tenant shall
use the parking area at its own risk, and Landlord shall have no
liability to Tenant or Tenant’s employees or invitees for any
damage to property or injury to persons occurring in or about the
parking area of the Project.
15.3 Landlord
reserves the right to modify Common Areas including the right to
add or remove exterior and interior landscaping provided that the
same shall not unreasonably interfere with Tenant’s use and
enjoyment of the Demised Premises, of the Building and/or of the
Project (including, but not limited to, the Common Areas) or reduce
the amount of parking except by reason of any taking in eminent
domain or similar governmental or quasi-governmental
action.
16.
Utilities and Services .
16.1 Tenant
shall pay for all water (including the cost to service, repair and
replace reverse osmosis, deionized and other treated water
facilities serving only the Demised Premises), gas, heat, light,
power, telephone and other utilities supplied to the Demised
Premises, together with any fees, surcharges and taxes thereon. If
any such utility is not separately metered to Tenant, Tenant shall
pay a reasonable proportion to be determined by Landlord of all
charges jointly metered with other premises as part of
Tenant’s Pro Rata Share of Operating Expenses.
16.2 Landlord
shall not be liable for nor shall any eviction of Tenant result
from the failure to furnish any such utility or service whether or
not such failure is caused by accident, breakage, repairs, strikes,
lockouts or other labor disturbances or labor disputes of any
character, governmental regulation, moratorium or other
governmental action, inability despite the exercise of reasonable
diligence or by any other cause, including the negligence of
Landlord. In the event of such failure, Tenant shall not be
entitled to any abatement or reduction of Rent, nor be relieved
from the operation of any covenant or agreement of this Lease. In
the event that Landlord fails to make a repair that Landlord is
obligated to make pursuant to the terms of this Lease and as a
result Tenant is substantially interfered with or interrupted in
conducting its business in the Demised Premises, or if such failure
might adversely affect the health or safety of any animals being
used in the Demised Premises or the integrity of any experiments or
studies being conducted on any such animals, Tenant, at its sole
cost and expense (unless such repair was an obligation of Landlord
pursuant to Section 18.1 that was not includible as an
Operating Expense, or unless such repair was a capital expenditure
in excess of $75,000.00 that would have been amortized as an
Operating Expense pursuant to Section 7.1(b), in either of
which events Landlord shall reimburse Tenant in an amount equal to
the reasonable costs paid by Tenant to make such repair promptly
following a request by Tenant for reimbursement accompanied by
copies of all invoices paid by Tenant), shall have the right to
make such repair. In the event that Tenant makes any such repair
Tenant shall give Landlord prompt notice of Tenant’s repair
and Tenant shall deliver to Landlord copies of all invoices paid by
Tenant to effect any such repair.
-14-
16.3 Tenant
shall pay for, prior to delinquency, any utilities and services
which may be furnished to the Demised Premises during the
Term.
16.4 Tenant
shall not, without the prior written consent of Landlord, use any
device in the Demised Premises, including, but without limitation,
data processing machines, which will in any way increase the amount
of ventilation, air exchange, gas, steam, electricity or water
beyond the existing capacity of the Building (as such capacity may
be increased based upon improvements by Landlord or Tenant).
Landlord acknowledges that Tenant shall be entitled to install an
additional tunnel/cage washer in the Demised Premises.
16.5 Landlord
shall make a commercially reasonable effort to require that other
tenants of the Building do not make any unreasonable noise or
vibrations which may unreasonably disturb Tenant’s use of the
Demised Premises for the Permitted Use, provided, however, that
Landlord shall not be liable to Tenant for damages for the failure
of any other tenant to comply with the requirements of such
tenant’s lease or with applicable laws.
16.6 Utilities
and services which are separately metered to the Demised Premises
shall be paid by Tenant directly to the supplier of such utility or
service.
16.7 Intentionally
omitted.
16.8 Subject
in all cases to the terms of Section 16.2 hereof, Landlord
reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electric systems, when necessary,
by reason of accident or emergency or for repairs, alterations or
improvements, in the judgment of Landlord desirable or necessary to
be made, until said repairs, alterations or improvements shall have
been completed, and Landlord shall further have no responsibility
or liability for failure to supply elevator facilities, plumbing,
ventilation, air conditioning or electric service, when prevented
from doing so by strike or accident, or by laws, rules, order,
ordinances, directions, regulations or requirements of any federal,
state, country or municipal authority or failure to deliver gas,
oil or other suitable fuel supply or inability by exercise of
reasonable diligence to obtain gas, oil or other suitable fuel. It
is expressly understood and agreed that any covenants on
Landlord’s part to furnish any service pursuant to any of the
terms, covenants, conditions, provisions or agreements of this
Lease, or to perform any act or thing for the benefit of Tenant,
shall not be deemed breached if Landlord is unable to finish or
perform the same by virtue of a strike or labor trouble or any
other cause whatsoever. The foregoing notwithstanding, Landlord
shall use its best efforts to minimize any interference with
Tenant’s use and enjoyment of the Demised Premises in
connection with any action by Landlord under this Section 16.8
and, in particular, shall coordinate and schedule all such
activities (except in case of emergency) with Tenant.
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16.9 Landlord
and Tenant acknowledge that there is an emergency power generator
(the “ Generator ”) at the Building, which
supports the heating, air conditioning and ventilation systems, the
water pumps, and the fire detection, life and safety systems of the
Building as of the Term Commencement Date (the “Building
Systems”). Landlord shall contract with a third party
contractor to maintain the Generator according to the
manufacturer’s standard maintenance guidelines. Landlord may
permit any tenant of the Building to draw electrical power from the
Generator, provided that no tenant draws more electrical power from
the Generator than the amount set forth in the following table (in
addition to that power used to support Building
Systems):
|
Basement lever
(Demised Premises)
|
2
watts/rentable square foot
|
|
First
Floor
|
1.2
watts/rentable square foot
|
|
Second
Floor
|
1.8
watts/rentable square foot
|
Tenant
shall have the right to draw electrical power from the Generator in
accordance with the foregoing table. Landlord shall be responsible
for requiring that each tenant lease at the Building limit the
right of the tenant under any such lease to draw electrical power
from the Generator to the amounts set forth in the foregoing table.
Landlord shall install and monitor systems to verify that no tenant
of the Building draws from the Generator more electrical power than
permitted according to the foregoing table. Landlord shall provide
Tenant with reasonable access to such systems at all times so that
Tenant may verify such compliance by other tenants of the Building.
If Landlord has actual knowledge of any tenant’s failure to
comply with the limitations on use of power from the Generator as
set forth in the foregoing table, Landlord shall make a
commercially reasonable effort to cause such tenant to comply.
Landlord shall not be liable to Tenant for damages arising from the
failure of the Generator to operate properly, or arising from any
tenant in the Building drawing from the Generator more electrical
power than such tenant is entitled to use, provided Landlord has
exercised reasonable diligence in meeting its obligations under
this Section 16.9. During any period of replacement, repair or
maintenance of the Generator or when the Generator is not
operational, including any delays due to the inability to obtain
parts or replacement equipment, Landlord shall have no obligation
to provide Tenant with an alternative back-up generator or
generators or alternative sources of back-up power. Except in case
of emergency, Landlord shall provide Tenant with reasonable prior
notice of any planned period of shut-down for replacement, repair
or maintenance of the Generator, and make a commercially reasonable
effort to minimize any interference with Tenant’s use of the
Premises in shutting down the Generator for replacement, repair or
maintenance. Tenant shall have the right at Tenant’s sole
cost to install its own temporary or permanent emergency generator
solely for the use of Tenant (“ Tenant’s
Generator ”), in a location selected by Landlord, and in
accordance with such reasonable requirements as Landlord may impose
on the installation of Tenant’s Generator. Upon the
expiration or earlier termination of this Lease, Tenant may remove
Tenant’s Generator as provided in Section 17.8.
-16-
17.
Alterations .
17.1 Except
as otherwise specifically provided herein, Tenant shall make no
alterations, additions or improvements in or to the Demised
Promises without Landlord’s prior written consent, which
approval shall not be unreasonably withheld, conditioned or delayed
(provided, however, that in the event any proposed alteration,
addition or improvement (i) affects any structural portions of
the Building including exterior walls, roof, foundation and core of
the Building, (ii) affects the exterior of the Building or
(iii) materially and adversely affects any Building systems,
including elevator, plumbing, air conditioning, heating,
electrical, security, life safety and power, then, except as
otherwise specifically provided in this Lease, Landlord may
withhold its consent with respect thereto in its sole and absolute
discretion), and then only by architects, contractors, suppliers or
mechanics reasonably approved by Landlord. In seeking
Landlord’s approval, Tenant shall provide Landlord, at least
five (5) business days in advance of any proposed construction,
with plans, specifications, bid proposals, work contracts and such
other information concerning the nature and cost of the alterations
as may be reasonably requested by Landlord (to the extent the same
exist). The foregoing notwithstanding, Tenant shall have the right
without Landlord’s prior written consent or approval to make
interior, non-structural alterations, additions and/or improvements
not materially and adversely affecting the Building systems or the
Common Areas and not, as to any particular project, exceeding
$30,000.00 in hard costs; provided, however, that Tenant shall
nevertheless furnish Landlord with prior written notice thereof in
accordance with Section 17.5 below and with a copy of any
preliminary plans and specifications, working drawings and final
“as-built” drawings obtained therefor. In all events
Tenant shall deliver to Landlord a copy of all documents, plans and
drawings submitted to governmental authorities in connection with
any alteration, addition or improvement.
17.2 Tenant
agrees that there shall be no construction of partitions or other
obstructions which might interfere with free access to mechanical
installation or service facilities of the Building or interfere
with the moving of Landlord’s equipment to or from the
enclosures containing said installations or facilities. The
foregoing shall not prohibit Tenant from constructing corridors or
other internal security partitions closing off such areas from
general public access, provided, however, that in such event Tenant
shall ensure that Landlord is given a copy of all keys and the like
needed for Landlord to have access to all Building mechanical
systems and service facilities and provided, further, however, that
in no event shall any such construction interfere with the moving
of Landlord’s equipment to and from the subject
enclosures.
17.3 Tenant
agrees to use its best efforts to ensure that any work by Tenant
shall be accomplished in such a manner as to permit any fire
sprinkler system and fire water supply lines to remain fully
operable at all times.
17.4 If
at the time such work is to be performed Tenant is not the only
tenant in the Building, all such work shall be done at such times
and in such manner as Landlord may from time to time reasonably
designate. Tenant covenants and agrees that all work done by Tenant
shall be performed in full compliance with all laws, rules, orders,
ordinances, directions, regulations, and requirements of all
governmental agencies, offices, departments, bureaus and boards
having jurisdiction, and in full compliance with the rules, orders,
directions, regulations, and requirements of any applicable fire
rating bureau. Tenant shall provide Landlord with copies of
“as-built” plans, if obtained, showing any change in
the Demised Premises. In all events Tenant shall deliver to
Landlord a copy of all documents, plans and drawings submitted to
governmental authorities in connection with any alteration,
addition or improvement.
-17-
17.5 Before
commencing any work, Tenant shall give Landlord prior written
notice of the proposed commencement of such work and shall, if
required by Landlord (in the event that the total projected hard
costs of such work exceed $100,000,00), secure at Tenant’s
own cost and expense a completion and lien indemnity bond (in
industry standard form) for said work. Such notice shall be
received by Landlord at least five (5) business days prior to the
commencement of such work.
17.6 All
alterations, attached equipment, decorations, fixtures, trade
fixtures, additions and improvements, subject to Section 17.8,
attached to or built into the Demised Premises, made by either of
the parties, including (without limiting the generality of the
foregoing) all floor and wall covering, built-in cabinet work and
paneling, sinks and related plumbing fixtures, exterior venting
fume hoods and non-modular walk-in-freezers and refrigerators,
ductwork, conduits, electrical panels and circuits, shall, unless
prior to such construction or installation, Landlord elects
otherwise, become the property of Landlord upon the expiration or
earlier termination of the term of this Lease, and shall remain
upon and be surrendered with the Demised Premises as a part
thereof.
17.7 Tenant
shall repair any damage to the Demised Premises caused by
Tenant’s removal of any property from the Demised Premises.
During any such restoration period, Tenant shall pay Rent to
Landlord as provided herein as if said space were otherwise
occupied by Tenant.
17.8 Notwithstanding
anything to the contrary set forth elsewhere in this Lease,
(a) if any such item was not in the Premises as of the
Delivery Date, and if no part of any such item was paid for in
whole or in part from Landlord’s Contribution (as defined in
Section 39), Tenant shall have the right to remove the following
items: backdraft table, tunnel/cage washers in connection with
animals maintained in the Demised Premises, modular chillers,
modular walk-in freezers, modular refrigerators,
emergency/uninterrupted power generators/systems (including related
electrical panels and transfer switches), modular casework,
countertops for modular casework, wireless LAN, audiovisual
equipment not built into the Demised Premises, modular furniture
and equipment, security systems not built into the Demised Premises
and self-contained air conditioning units and /or fire suppression
units not built into the Demised Premises; provided, however, that
Tenant shall repair any damage caused by the removal thereof and
(b) Tenant shall not have the right to remove piping,
ductwork, exhaust vents, wiring, cabling, electrical panels or
transfer switches (except as provided above), transformers,
circuits, conduits, gas and vacuum distribution systems,
specialized water systems (reverse osmosis and deionized), exterior
exhausting fume hoods and air conditioners, non-modular casework
and bench tops, built-in cabinets, wall and floor coverings, pumps,
Building boilers, airhandlers, steam coils, heat exchangers,
non-modular chillers, waste disposal systems, steam generators,
light fixtures, life and safety systems (i.e., fire alarms, eye
wash stations and fire sprinklers), drop ceiling structure and
tiles, sinks and hot water heaters. In any event Tenant shall not
be permitted to remove (i) any part of the Building’s
basic operating systems (as distinguished from specialized
laboratory items permitted to be removed pursuant to clause (a)
above), (ii) anything purchased or paid for by Landlord
directly or through the payment by Landlord to Tenant of any
construction or improvement allowance, or (iii) anything that
could result in significant damage to the Building. If Tenant shall
fail to remove all of its effects from the Demised Premises prior
to termination of this Lease, then Landlord may, at its option,
remove the same in any manner that Landlord shall choose, and store
said effects without liability to Tenant for loss thereof or damage
thereto, and Tenant agrees to pay Landlord upon demand any expenses
incurred for such removal and storage or Landlord may, at its
option, without notice, sell said property or any of the same, at
private sale and without legal process, for such price as Landlord
may obtain and apply the proceeds of such sale against any amounts
due under this Lease from Tenant to Landlord and against any
expenses incident to the removal, storage and sale of said personal
property.
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17.9 Notwithstanding
any other provision of this Article 17 to the contrary, in no
event may Tenant remove any improvement from the Demised Premises
as to which Landlord contributed payment, including, without
limitation, the Tenant Improvements made pursuant to Section 39 of
this Lease, without Landlord’s prior written consent, which
may be withheld in Landlord’s sole discretion.
17.10 Tenant
shall pay to Landlord an amount equal to five percent (5%) of the
cost to Tenant of all changes installed by Tenant or its
contractors or agents to cover Landlord’s overhead and
expenses for plan review, coordination, scheduling and supervision
thereof.
17.11 Tenant
shall be permitted to install, at its sole cost, a telephone in the
loading dock area of the Building so that arrivals can so notify
Tenant.
18.
Repairs and Maintenance .
18.1 Landlord
shall repair and maintain the structural and exterior portions and
Common Areas of the Building (including water tightness thereof)
and Project, including, without limitations, roofing and covering
materials, foundations, exterior walls, the plumbing, fire
sprinkler system (if any), heating, ventilating, air conditioning,
elevator, and electrical systems thereof (and the full cost thereof
shall be included as a part of Operating Expenses as provided in
Article 7), unless such maintenance or repairs are required in
whole or in part because of any act, neglect, fault of or omissions
of any duty by Tenant, its agents, servants, employees or invitees,
in which case Tenant shall pay to Landlord the cost of such
maintenance and repairs. Notwithstanding anything to the contrary
set forth elsewhere in this Lease, Landlord, at its sole cost and
expense and not as an Operating Expense, shall be responsible for
maintaining the structural integrity of the roof, the exterior
walls and the floor slabs of the Building. In the event that Tenant
desires to independently arrange for certain services otherwise
furnished by Landlord (other than landscaping), Tenant shall give
notice to Landlord of such desire and, subject to Landlord’s
approval, which approval shall not be unreasonably withheld, Tenant
may make such arrangements in which event Tenant shall pay the
entire cost therefor directly to the provider thereof and no costs
associated with any such service shall be included in Operating
Expenses. In the event Landlord approves of any such arrangement,
Landlord reserves the right to monitor the work or services
provided by any such provider. Upon request by Landlord in the
event that Landlord is dissatisfied with a provider or with the
work or services provided, Tenant shall terminate any such
arrangements provided that Tenant shall have no less than forty
five (45) days following receipt of Landlord’s request to
effect such termination. In addition, upon request by Landlord
Tenant shall promptly furnish to Landlord copies of all documents,
contracts, work orders and other instruments executed in connection
with any such arrangement.
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18.2 Except
for services of Landlord, if any, required by this Lease, Tenant
shall at Tenant’s sole cost and expense keep the Demised
Premises and every part thereof in good condition and repair,
damage thereto from ordinary wear and tear excepted. Tenant shall,
upon the expiration or sooner termination of the Term, surrender
the Demised Premises to Landlord in as good condition as when
received, ordinary wear and tear and damage by casualty excepted.
Except as otherwise specifically provided herein, Landlord shall
have no obligation to alter, remodel, improve, repair, decorate or
paint the Demised Premises or any part thereof. By way of example
and not limitation, Tenant shall be fully responsible, at
Tenant’s cost, for the maintenance of the vivarium, the
computer for the vivarium, any autoclave, cage washer, and
specialty water systems.
18.3 Except
as provided in Section 16.2, Lan
