|
Exhibit 10.1
LEASE AGREEMENT
THIS LEASE AGREEMENT (the
"Lease" ) dated as of the 1 st day of January, 2007, to be
effective as of the Commencement Date hereinafter set forth, is
made and entered into by and between NOBLEGENE DEVELOPMENT,
LLC, a Tennessee limited liability company (the
"Landlord" ), and BIOMIMETIC THERAPEUTICS, INC., a
Delaware corporation (the "Tenant" ).
WHEREAS , Landlord has
leased to the Tenant certain premises in the Building (as defined
hereinafter) as more particularly described in that certain Lease
Agreement dated April 22, 2004, between Landlord and Tenant
(the "First Lease" );
WHEREAS , Landlord and
Tenant had amended the First Lease on July 22, 2005 (the
"First Amendment to First Lease" ) to include additional
space;
WHEREAS ; BioMimetic
Pharmaceuticals, Inc. has changed its name to BioMimetic
Therapeutics, Inc.;
WHEREAS , Tenant desires
to lease the entire Building from Landlord in accordance with the
terms and conditions stated herein;
WHEREAS ; Landlord and
Tenant hereby agree that this Lease shall replace in its entirety
the First Lease and the First Amendment to First
Lease , and that the First Lease , as amended, shall be
terminated as of the Commencement Date of this Lease.
NOW THEREFOR; IT IS AGREED BY AND AMONG
THE
PARTIES AS FOLLOWS:
ARTICLE 1.
LEASED PREMISES; TERM; COMMENCEMENT DATE
1.1 Leased Premises and Common
Areas. Upon and subject to the terms and conditions hereinafter
set forth, Landlord hereby leases, demises and lets to Tenant, and
Tenant hereby leases, rents and hires from Landlord, the following
described property:
(a) The
Building, which contains the Rentable Square Feet (hereinafter
defined) and which sometimes hereinafter is referred to as the
"Leased Premises" or the "Building" ; and
(b) a
non-exclusive right in common with all other tenants and occupants
of CSLSC, if any, to use the Common Areas (as hereinafter defined)
subject to the terms and conditions hereinafter set forth. The
Leased Premises and the Common Areas are sometimes hereinafter
referred to collectively as the " Facility. "
Page 1 of 38
1.2 Term; Commencement Date;
Certain Conditions.
(a) The
initial term of the Lease (the "Initial Term" ) shall be for
a period commencing at 12:01 a.m. on the 1st day of January,
2007 (the "Commencement Date" ). This Lease shall remain in
effect for a period of Ten (10) calendar years, expiring at
midnight on the date that is Ten (10) calendar years from the
Commencement Date. Tenant shall have the right to extend the term
of this Lease for a period of five (5) years (" First
Extension Term ") by written notice to Landlord, no later than
January 1, 2016. The Base Rent for the first year of the First
Extension Term shall be the amount of the non-discounted, annual
base rent paid by Tenant in the tenth year of the Initial Term plus
any increase as provided for in Section 3.2 of the
Lease and escalating each year thereafter as provided in
Article 3. Additional Rent shall be paid as provided for in
Article 4. Thereafter, Tenant shall have the right to extend
the term for an additional five (5) years (" Second
Extension Term "), upon twelve (12) months written notice
to Landlord. The Base Rent for the first year of the Second
Extension Term shall be the amount of the non-discounted annual
base rent paid by Tenant in the fifth year of the First Extension
Term plus any increase as provided for in Section 3.2
and escalating each year thereafter as provided in Article 3.
Additional Rent shall be paid as provided for in Article 4.
Upon the expiration of the Initial Term and all Extension Terms
(the "Term Expiration Date" ), this Lease shall terminate as
to the Facility.
(b) For
purposes of this Lease, "Lease Year" shall mean a period of
twelve (12) successive calendar months commencing on the
Commencement Date and on the same date in each successive year
during the term of this Lease. The terms "Term of this
Lease" , "Lease Term" , or "Term" , when
hereinafter used in this Lease, shall mean and include the Initial
Term of this Lease, as the same may be shortened by any early
termination of this Lease, and, to the extent this Lease may be
extended or renewed, any Extension Term of this Lease.
ARTICLE 2.
GLOSSARY OF
2.1 Definitions. For all
purposes of this Lease, except as otherwise expressly provided or
unless the context otherwise requires, (i) the terms defined
in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular, (ii) all
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles at the time applicable, consistently applied,
(iii) all references in this Lease to designated
"Articles" , "Sections" and other subdivisions are to
the designated Articles, Sections and other subdivisions of this
Lease and (iv) the words "herein" , "hereof" ,
"hereinafter" and "hereunder" and other words of
similar import refer to this Lease as a whole and not to any
particular Article, Section or other subdivision:
"Additional Rent" has the meaning set forth in
Section 4.1 .
"Award" means all compensation, sums or anything of value
awarded, paid or received on a total or partial Condemnation.
Page 2 of 38
"Building" means the entire building known as Building A of the
CSLSC located at 389-A Nichol Mill Lane, Franklin Tennessee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which national banks in
the City of Nashville, Tennessee, are closed.
"Charge" has the meaning set forth in
Article 11.
"CSLSC" shall mean the Cool Springs Life Sciences Center
which consists of the Land, the Leased Premises which are located
on the Land, and all other buildings and other improvements now
existing or which shall exist at any time in the future upon such
Land. (See Exhibit A.)
"CSLSC Total Square Footage" shall mean the total
rentable square footage of all buildings, including the Building
now existing or which shall exist at any time in the future upon
the Land, for which Landlord is receiving rent.
"Commencement Date" has the meaning set forth in
Section 1.2 .
"Common Areas" shall mean the areas of the CSLSC that are
designed for use in common by all tenants of the CSLSC and their
respective employees, agents, customers, invitees and others, and
includes, by way of illustration and not limitation,
(i) entrances and exits, hallways and stairwells, elevators,
and restrooms for any improvement on the Land (unless such
improvement is leased and/or occupied in its entirety by a single
tenant and/or occupant, in which case such areas shall not be
considered part of the Common Areas), (ii) sidewalks,
driveways, parking areas, and landscaped areas, and
(iii) other areas as may be designated by Landlord as part of
the Common Areas of the CSLSC, all of which shall be subject to
such nondiscriminatory rules and regulations as may be adopted from
time to time by Landlord.
"Condemnation" means the exercise of any governmental
power of condemnation or eminent domain, whether by legal
proceedings or otherwise, by a Condemnor or the transfer of all or
any part of the Facility as a result thereof.
"Condemnor" means any public or quasi-public authority,
or private corporation or individual, having the power of
Condemnation or on whose behalf the power of Condemnation is
exercised.
"Event of Default" has the meaning set forth in
Section 15.1 .
"Facility" has the meaning set forth in
Section 1.1(b) .
"GAAP" means generally accepted accounting principles
consistently applied.
"Hazardous Substance" means any hazardous or toxic
substance, material, or waste which is or becomes regulated by any
local governmental authority, the State of Tennessee or the United
States Government, including, without limitation, (i) any
substance, chemical or waste that is or shall be listed or defined
as hazardous, toxic or dangerous under Hazardous Materials Law,
(ii) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated
Page 3 of 38
by any federal, state or local governmental authority pursuant
to any environmental, health and safety or similar law code,
ordinance, rule, regulation, order or decree and which may or could
pose a hazard to the health and safety of occupants or users of the
Facility or any part thereof, any adjoining property or cause
damage to the environment, (iii) any petroleum products,
(iv) PCBs, (v) leaded paint, and (vi) asbestos.
"Hazardous Materials Law" shall include the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. § 9601 et seq., the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., the Federal
Water Pollution Control Act, 33 U.S.C. § 1251 et seq., the
Clean Air Act, 42 U.S.C. § 7401 et seq., the Hazardous
Materials Transportation Act, 49 U.S.C. § 1801 et seq, the
Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., and
the Safe Drinking Water Act, 42 U.S.C. § 300f through 300j26,
as such Acts have been or are hereafter amended from time to time;
any so called superfund or super lien law; and any other federal,
state and local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to or imposing liability or
standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material as now or any time hereafter in
effect.
"Impositions" means, collectively, all taxes, payments in
lieu of taxes, assessments and governmental charges relating to the
Leased Premises and/or the Common Areas as applicable, including
all ad valorem, real or personality, sales and use, gross receipts,
privilege, rent or similar taxes, assessments (including all
assessments for public improvements or benefits), water, sewer or
other rents and charges, excises, tax levies, fees (including
license, permit, inspection, authorization and similar fees), and
all other governmental charges, in each case whether general or
special, ordinary or extraordinary, or foreseen or unforeseen, of
every character in respect of the Leased Premises and/or the Common
Areas as applicable (including all interest and penalties thereon
due to any failure in payment by Tenant), applicable to periods of
time within the Term of this Lease which at any time during or in
respect of the Term hereof may be lawfully assessed or imposed on
or in respect of, or be a lien upon, (a) the Facility or any
part thereof or any estate, right, title or interest therein, or
(b) any occupancy, operation, use or possession of, sales
from, or activity conducted on, or in connection with, the Facility
or use of the Facility or any part thereof, provided that nothing
contained in this Lease shall be construed to require Tenant to pay
(1) any tax based on net income (whether denominated as a
franchise or capital stock or other tax) imposed on Landlord,
(2) any transfer or net revenue tax of Landlord, and
(3) any tax imposed with respect to the sale, exchange or
other disposition by Landlord of any portion of the Leased Premises
or the proceeds thereof.
"Initial Term" has the meaning set forth in
Section 1.2 .
"Insurance Requirements" means all terms of any insurance
policy required by this Lease and all requirements of the issuer of
any such policy.
"Land" means the approximate 9.81 acres upon which the
CSLSC is located.
"Landlord" means Noblegene Development, LLC, a Tennessee
limited liability company, its successors and permitted
assigns.
Page 4 of 38
"Lease" means this Lease Agreement.
"Lease Year" has the meaning set forth in
Section 1.2(b) .
"Leased Premises" has the meaning set forth in
Section 1.1(a) .
"Legal Requirements" means all federal, state, county,
municipal and other governmental statutes, laws, rules, orders,
regulations, ordinances, judgments, decrees and injunctions
affecting the Leased Premises and/or the Facility, as
applicable.
"Operating Costs" has the meaning set forth in
Article 4.
"Overdue Rate" means, as of any date, a rate per annum
equal to the Prime Rate as of such date, plus three
(3) percent, but in no event greater than the maximum interest
rate then permitted under applicable law.
"Payment Date" means any due date for the payment of the
installments of Rent under this Lease.
"Primary Intended Use" has the meaning set forth in
Section 6.1 .
"Rent" has the cumulative meaning as set forth in
Sections 3.1 and 3.2 and also includes
Additional Rent as defined in Section 4.1 .
"Rentable Square Feet" means Thirty-Two Thousand (32,000)
Square Feet of space rentable within the Building and rented by
Tenant herein.
"Replacement Property" has the meaning set forth in
Section 8.1(e) .
"Security Deposit" has the meaning given it in
Section 4.6 .
"Taking" means a taking during the Term hereof of all or
part of the Leased Premises, or any interest therein or right
accruing thereto or use thereof, as the result of, or in settlement
of any Condemnation or other eminent domain proceeding affecting
the Leased Premises, whether or not the same shall actually have
commenced.
"Tenant" means BioMimetic Therapeutics, Inc., a Delaware
corporation, its successors and permitted assigns.
"Tenant Rent Credit" has the meaning set forth in
Section 9.3 .
"Tenant Improvement Work" has the meaning set forth in
Section 9.4 .
"Tenant’s Personal Property" means all machinery,
equipment, furniture, furnishings, computers, signage, trade
fixtures or other personal property and consumable inventory
and
Page 5 of 38
supplies of Tenant used or useful in the operation of the Leased
Premises for its Primary Intended Use, together with all
replacements and substitutions therefor.
"Unavoidable Delay" means delays due to strikes, picket
lines, boycotts, lockouts, power failure, acts of God, governmental
acts or restrictions, war (whether or not declared), enemy action,
revolution, terrorism, riots, insurrections, civil commotion,
fires, floods, freezes, accidents, unavoidable casualty, inability
to obtain materials or labor, scarcity or rationing of gasoline or
other fuel or vital products or personnel, or other causes
reasonably beyond the control of the party responsible for
performing an obligation hereunder, provided that lack of funds
shall not be deemed a cause beyond the control of either party
hereto.
"Unsuitable for Its Primary Intended Use" or
"Unsuitable for Its Primary Intended Uses," as used anywhere
in this Lease, shall mean that, by reason of damage or destruction,
prohibition of use by any governmental entity, or a partial Taking,
in the good faith judgment of Landlord, reasonably exercised, the
Leased Premises cannot be operated on a commercially practicable
basis for its Primary Intended Use, taking into account, among
other relevant factors, such as available parking, the amount of
square footage and the estimated revenue affected by such damage,
destruction, prohibition, or partial Taking.
ARTICLE 3.
RENT
3.1 Base Rent. Tenant
shall pay to Landlord, without notice or demand, in lawful money of
the United States of America, at Landlord’s address set forth
herein or at such other place or to such other person, firm or
corporation as Landlord, from time to time, may designate in
writing, Base Rent for each Lease Year during the Term of this
Lease in an annual amount equal to $18.21 multiplied
by the Thirty-Two Thousand (32,000) rentable square feet within the
Leased Premises, and such amount shall be adjusted from time to
time under the terms of this Lease. The annual Base Rent, which for
the first Lease Year shall be Five-Hundred Eighty-Two
Thousand, Seven-Hundred and Twenty and 00/100 Dollars
($582,720.00) , shall be due and payable in twelve
(12) equal monthly installments in the amount of
Forty-Eight Thousand, Five-Hundred and Sixty and 00/100
Dollars ($48,560.00) each , payable in advance, beginning
on the Commencement Date and continuing on the first day of each
successive calendar month thereafter during the Term of this Lease.
If any payment of Rent owing by Tenant to Landlord after the
Commencement Date shall not be paid within five (5) days of
the date when due, such unpaid amount shall be considered
delinquent, and shall (i) be assessed a late fee in the amount
of five percent (5%) of the unpaid amount, and (ii) bear
interest at the Overdue Rate from the date such Rent payment was
due to the date of actual payment.
3.2 Adjustments to Base
Rent. Landlord and Tenant agree that Base Rent payable under
this Lease in accordance with Section 3.1 shall be
subject to adjustment as set forth in this Section 3.2
. Beginning with the second Lease Year, Base Rent shall be adjusted
to reflect changes year to year in the Consumer Price Index (
"CPI" ) as set forth below. The basis for computing the CPI
adjustment shall be the unadjusted Consumer Price Index for all
Urban Consumers - all Items (1982-84=100) published by the Bureau
of Labor Statistics of the United States Department of Labor (the
"Index" ). The Index for the third calendar month preceding
the
Page 6 of 38
beginning of the second Lease Year shall be the "Base Index
Number." The Index for the same month in the year of the
applicable Adjustment Date shall be the "Current Index
Number." On each anniversary of the Commencement Date during
the Term of this Lease (each such date an "Adjustment Date"
), Base Rent shall be adjusted as follows (a) by an increase
of three percent (3%) of the then current Base Rent or (b) if
larger, by adjustment to reflect the increase in the CPI over the
preceding Lease Year, not to exceed five percent (5%). If Base Rent
is to be increased pursuant to clause (b), the new Base Rent shall
be the product obtained by multiplying the Base Rent then in effect
(the "Initial Base Rent" ) by a fraction the numerator of
which is equal to the Current Index Number and the denominator of
which is equal to the Base Index Number. If the Index is not in
existence at the time of such determination, the parties shall use
an equivalent price index as is published by a comparable
governmental agency in lieu of the Index or a mutually acceptable
similar price index as published by a non-governmental agency.
3.3 Triple Net Lease. This is
a triple net lease, except as expressly modified by the terms and
conditions of this Lease. With the exception of those items in
Section 4.5 of this Lease , the Rent shall be paid
absolutely net to Landlord, so that this Lease shall yield to
Landlord the full amount of the installments of Base Rent and the
payments of Additional Rent, as hereinafter defined, throughout the
entire Term. The covenant to pay Rent as set forth in this Lease is
independent of the covenants of Landlord hereunder. Tenant shall
have no right of offset, deduction, abatement, recoupment or charge
under this Lease and shall pay all Rent as and when due without any
deduction whatsoever.
ARTICLE 4.
COSTS PAID BY TENANT
4.1 Additional Rent; In
addition to the Base Rent as set forth in Article 3 herein,
Tenant shall pay Landlord " Additional Rent ," which term
shall be defined to include, but not be limited to, the
following:
(a) All
Operating Costs (as defined in Section 4.4 ) associated
exclusively with Leased Premises;
(b) Tenant’s
Proportionate Share (as defined in Section 4.2 ) of
Operating Costs for the CSLSC, the Land and the Common Areas, and
which are not exclusively associated with a specific building
within the CSLSC;
(c) any
sum owed for separately metered utilities, if any, including,
without limitation, electricity, gas and telephone and data
services;
(d) to
the extent paid by Landlord, all charges for insurance coverage
required to be maintained pursuant to Article 12 hereof during
the Term of this Lease; and
(e) any
other sums owed by Tenant pursuant to the terms of this Lease or
otherwise arising in connection with Tenant’s occupancy of
the Leased Premises.
Page 7 of 38
Any other operating costs or
expenses related to Tenant’s use and occupancy of the Leased
Premises that are paid directly by Tenant shall not be included in
Additional Rent and Landlord/Building Management shall not be
responsible for any such services or other obligations, of any kind
whatsoever, related to these items.
If Landlord subdivides and legally
partitions the parcel of Land associated with planned building B of
the CSLSC, Tenant’s Proportionate Share of Operating Costs
shall not include any taxes or site maintenance for that subdivided
and legally partitioned unimproved parcel of the Land until such
time improvements commence for the development and construction of
building B.
For purposes of this Lease, Base
Rent and Additional Rent shall hereinafter be collectively referred
to as "Rent."
4.2 Proportionate Share.
"Tenant’s Proportionate Share" shall mean the Rentable
Square Footage divided by the CSLSC Total Square
Footage.
As and when the Building shall
become part of or shall include a complex or group of buildings or
structures collectively owned, leased or managed by or on behalf of
Landlord or any of its affiliates, Landlord may allocate among the
buildings within the complex or group of buildings those categories
of Operating Costs which relate to any facilities which are for the
common use or benefit of the complex or group of buildings, among
such buildings in accordance with sound accounting and management
principles and Section 4.1(b) . Such common use or
benefit facilities shall include, but shall not necessarily be
limited to, parking facilities and driveways, sidewalks, connecting
bridges and corridors, and other public areas that are not part of
a particular building within the complex or group, all of which are
maintained for the common benefit and use of buildings within the
complex or group.
4.3 Payment of Additional
Rent. Tenant shall be responsible for and shall pay the
Additional Rent for all calendar years during the term of this
Lease.
(a) Prior
to the beginning of each calendar year during the Term (or within
thirty days of the execution of this Lease for 2007), Landlord
shall furnish Tenant with a statement of Landlord’s
good-faith estimate of the Additional Rent for such calendar year.
By the first day of each month thereafter during such calendar
year, in addition to Base Rent due hereunder at such time, Tenant
shall pay a monthly installment equal to 1/12th of the Additional
Rent as estimated and set forth in such statement, if any, for such
calendar year. If Landlord fails to deliver such statement prior to
January 1 of the applicable year, Tenant shall pay 1/12th of the
Additional Rent for the prior year, if any, until such statement is
received. If Landlord furnishes Tenant such a statement, to the
extent the new estimate is greater than or less than the estimates
paid to date for such calendar year, a lump sum payment or credit
shall be made in the next monthly payment to adjust for such
differential and, thereafter, Tenant shall pay 1/12th of the
Additional Rent as set forth in the new estimate.
(b) Within
thirty (30) days after the end of each calendar year during
the Term, Landlord shall furnish to Tenant a statement of actual
Additional Rent for the previous
Page 8 of 38
calendar year (provided Landlord’s right to collect the
Additional Rent shall not be affected if Landlord fails to deliver
such statement within such thirty (30) day period). Such
statement of actual Additional Rent shall include a detailed
itemized monthly summary of Additional Rent charges incurred during
each month in sufficient detail to enable Tenant to understand to
what each charge relates. A lump sum payment (which payment shall
be considered a payment of rent for all purposes) will be made by
Tenant, within thirty (30) days of the delivery of that
statement, equal to the excess, if any, of the actual amount of the
Additional Rent over all amounts paid by Tenant hereunder with
respect to the Additional Rent for the preceding calendar year. If
the amount of the Additional Rent is less than the estimated
amounts paid by Tenant hereunder with respect to the Additional
Rent for such calendar year, Landlord shall apply the difference
(the "Overage" ) to the next accruing installment of Rent
due hereunder or, if necessary, subsequently accruing installments
of Rent until the entire Overage amount is credited; provided that
if the term of this Lease has expired at the time Landlord’s
Statement is delivered, Landlord shall refund the amount of any
Overage within 30 days of the issuance of Landlord’s
Statement.
(c) In
the event the amount of Additional Rent for the final calendar year
of the Term is not calculated and submitted until after the
expiration of the Term, then Tenant’s obligation to pay the
same and Landlord’s obligation to refund any Overage shall
survive the expiration or termination of this Lease. Accordingly,
in addition to other remedies available to Landlord hereunder and
provided that Landlord provides Tenant with the statement of actual
Additional Rent within sixty (60) days of the expiration of
the Term, Landlord shall have the right to continue to hold without
interest Tenant’s Security Deposit, if any, following
expiration of the Term until the Additional Rent has been paid in
full, unless an alternative security (letter of credit or
otherwise) is furnished to the satisfaction of Landlord. The
Additional Rent for the calendar years in which the Term commences
and ends, if any, shall be prorated on the basis of the number of
days of the Term within each such calendar year.
(d) Notwithstanding
Sections 4.3(a) — (c), Landlord may alternatively elect
to invoice Tenant on a monthly basis for all actual Additional Rent
as the expenses are incurred. Tenant shall pay such invoices within
thirty (30) days of receipt thereof.
(e) Landlord
shall maintain, and shall ensure that any Management Company
maintains, complete and accurate records sufficient to enable
accurate calculation of Additional Rent due under this Lease. Once
a calendar year, Tenant shall have the right to select a certified
public accountant reasonably acceptable to Landlord to inspect, on
not less than fifteen (15) business days prior written notice
and during regular business hours, the records of Landlord and/or
any Management Company necessary to verify the Additional Rent
payments due pursuant to this Lease. Such accountant must execute a
nondisclosure agreement reasonably satisfactory to Landlord prior
to any access to records. The entire cost for such inspection shall
be borne by Tenant unless there is a discrepancy of greater than,
or equal to, ten percent (10%) in Landlord’s favor, in which
case Landlord shall bear Tenant’s external auditors costs for
the inspection. Records shall be preserved by Landlord and any
Management Company for seven (7) years for inspection by
Tenant.
4.4 Operating Costs Defined.
"Operating Costs" shall mean all amounts paid or payable,
whether by Landlord or by others on behalf of Landlord, arising out
of the ownership,
Page 9 of 38
management, maintenance, operation, repair, replacement and
administration of the CSLSC, including, without limitation:
(a) the
cost of all real estate, personal property and other ad valorem
taxes, payments in lieu of taxes and any other levies, charges,
impact fees and local improvement rates and assessments whatsoever
assessed or charged against the CSLSC and the land upon which the
Building is located, the equipment and improvements contained
therein or thereon, or on or in any part thereof, by any lawful
taxing authority (collectively, "Taxes" ), including all
costs associated with the appeal of any assessment of Taxes;
(b) the
cost of insurance obtained by Landlord, including, but not limited
to, casualty insurance, liability insurance, rent interruption
insurance, and any deductible amount applicable to any claim made
by Landlord under any such insurance;
(c) the
cost of security, landscaping, window cleaning, garbage removal,
trash removal and all of the services provided to Tenant and other
tenants of the Building by Landlord (other than any services which
are separately billed to Tenant or any other tenants);
(d) the
cost of heating, ventilating and air conditioning, all gas, water,
sewer, electricity and any other utilities used in the maintenance,
operation, use and occupancy and administration of the CSLSC;
(e) salaries,
wages and other amounts paid or payable for all personnel involved
in the management, repair, maintenance, operation, leasing,
security, supervision or cleaning of the CSLSC including fringe
benefits, unemployment and workmen’s compensation insurance
premiums, pension plan contributions and other employment costs, as
well as the cost of engaging independent contractors to perform any
of the foregoing services;
(f) auditing,
accounting, legal fees and costs associated with the CSLSC;
(g) the
cost of repairing, replacing, operating and maintaining the
CSLSC;
(h) the
cost of the rental of any equipment and signs (not including
Tenant’s signage);
(i) all
management and administrative costs and fees;
(j) capital
expenditures for improvements and/or equipment which are required
by law and/or which are designed to result in a labor or cost
savings, in which case the capital expenditures shall be amortized
over the useful life of the improvements or equipment as determined
by Landlord, not exceeding ten (10) years and shall be
included on an annual basis in Operating Costs; provided, however,
the amount of such amortization included in Operating Costs during
any lease year shall not exceed the amount by which Operating Costs
were reduced during such lease year as a result of the installation
of such capital investment items;
Page 10 of 38
(k) costs
incurred by Landlord to conduct any environmental tests required by
municipal, county, state or federal law, including administrative
agencies, or by Landlord;
(l) without
duplication of any of the foregoing, if the Building is subject to
the condominium form of ownership, all condominium assessments,
fees and charges levied against or attributable to the condominium
units in the Building; and
(m) all
other expenses, costs and disbursements of every kind and nature
which Landlord shall pay or become obligated to pay in respect to
or in connection with the CSLSC.
4.5 Notwithstanding any
provision contained herein, in no event shall the following be
included in the definition of "Operating Costs:"
(a) Initial costs of the
Building and capital repairs, except as otherwise listed in
subparagraph 4.4(j) above;
(b) Debt service;
(c) Ground lease rental;
(d) Costs reimbursed by
insurance proceeds, condemnation awards, warranties and services
contracts or Tenant;
(e) Salaries of officers,
executives or partners of Landlord above the level of Building
Manager;
(f) Non-cash items
(depreciation), except as otherwise listed in subparagraph 4.4(j)
above;
(g) Capital items of any kind
or nature, except as otherwise listed in subparagraph 4.4(j)
above;
(h) Landlord’s late
payment fees and tax penalties;
(i) Landlord’s bad debt
or rent loss;
(j) In-house legal or
accounting fees; (excludes all third party entities)
(k) Landlord’s general
corporate overhead; (excludes all third party entities)
(l) Voluntary contributions;
or (unless otherwise approved by tenant)
(m) Any costs associated with
hazardous or toxic substances on the Building or Land for which
Landlord is responsible for under Article 6.
Operating Costs shall not include
the cost of any work or service provided to any tenant of the CSLSC
that is in addition to that which Landlord is obligated or
permitted to provide to Tenant under the provisions of this Lease
or the comparable provisions of the other tenant leases of the
CSLSC.
4.6 Security Deposit.
Tenant has deposited with Landlord the sum of Ten Thousand and
No/100 Dollars ($10,000.00) (the "Security Deposit" ) as
security for the full and faithful
Page 11 of 38
performance by Tenant of all of Tenant’s obligations
hereunder. Tenant grants to Landlord a security interest in such
Security Deposit to secure Tenant’s obligations under this
Lease. No interest shall be paid upon the Security Deposit nor
shall Landlord be required to maintain the deposit in a segregated
account, unless required by applicable law in which event Landlord
will comply with such legal requirement. The Security Deposit shall
not be construed as prepaid rent. In the event that Tenant shall
default in the full and faithful performance of any of the terms
hereof, then Landlord may, without notice, either retain the
Security Deposit as liquidated damages, or Landlord may retain the
same and apply it toward any damages sustained by Landlord,
including but not limited to actual, consequential or other direct
or indirect damages sustained by the Landlord by reason of the
default of Tenant, including but not limited to any past due rent.
In the event of bankruptcy or other debtor-creditor proceedings,
either voluntarily or involuntarily instituted by or against
Tenant, the Security Deposit shall be deemed to be applied in the
following order: to damages, obligations and other charges,
including any damages sustained by Landlord, other than unpaid
rent, due to Landlord for all periods prior to the filing of such
proceedings; to accrued and unpaid rent prior to the filing of such
proceeding; and thereafter to actual damages, obligations, other
charges and damages sustained by Landlord and rent due the Landlord
for all periods subsequent to such filing. In the event of a sale
of the Leased Premises or all or any portion of the Building,
Landlord shall have the right to transfer the Security Deposit to
the buyer, and Landlord shall thereupon be relieved of all
obligations to return the Security Deposit to Tenant, and Tenant
agrees to look solely to the buyer for the return of the Security
Deposit. If Tenant fully and faithfully complies with all of the
terms hereof, the Security Deposit or any balance thereof shall be
returned to Tenant within sixty (60) days after expiration of
this Lease, including any renewal thereof.
ARTICLE 5.
OWNERSHIP OF FACILITY AND TENANT’S
PERSONAL PROPERTY
5.1 Ownership of the
Facility. Tenant acknowledges that the Facility is the property
of Landlord, and that Tenant has only the right to the possession
and use of the Facility upon and subject to the terms and
conditions of this Lease.
5.2 Tenant’s Personal
Property. Tenant may, at its expense, install, affix or
assemble or place in the Leased Premises any items of the
Tenant’s Personal Property, and may remove, replace or
substitute for the same, from time to time, in the ordinary course
of Tenant’s business. Tenant shall provide and maintain,
during the entire Term, all such Tenant’s Personal Property
as shall be necessary in order to operate its business or the
business of its subtenants in compliance with all applicable Legal
Requirements and Insurance Requirements and otherwise in accordance
with customary practice in the industry for the Primary Intended
Use.
Page 12 of 38
ARTICLE 6.
USE OF LEASED PREMISES
6.1 Use of the Leased
Premises.
(a) After
the Commencement Date and during the entire Term, Tenant shall use
the Leased Premises or cause the Leased Premises to be used as
offices, light manufacturing and laboratory space for its own use
and for such other uses as may be reasonably necessary in
connection with or incidental to such purposes and uses (together,
the "Primary Intended Use" ). Landlord shall not prohibit
Tenant from using part of the Leased Premises as a vivarium;
however, under no circumstances shall a vivarium be considered as
part of the Primary Intended Use. Tenant shall not use the Leased
Premises or any portion thereof for any other use without the prior
written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed.
(b) Tenant
covenants and agrees that during the Term of this Lease it will
continuously use and operate the Leased Premises in accordance with
its Primary Intended Use.
(c) Tenant
shall not commit or suffer to be committed any waste on the Leased
Premises, nor shall Tenant cause or permit any nuisance
thereon.
(d) Tenant
shall neither suffer nor permit the Leased Premises or any portion
thereof, to be used in such a manner as (i) might reasonably
tend to impair Landlord’s title thereto or to any portion
thereof, or (ii) may reasonably result in a claim or claims of
adverse usage or adverse possession by the public, as such, or of
implied dedication of the Leased Premises or any portion
thereof.
6.2 Environmental Matters
— Tenant Responsibilities. Except in compliance with all
Hazardous Materials Laws, Tenant will not store or dispose of nor
permit any subtenant, licensee, occupant or operator to store or
dispose of any Hazardous Substances, the removal of which is
required or the maintenance of which is prohibited or penalized by
any Hazardous Substances Law, on the Facility. Tenant will not
cause, allow or permit the release or discharge of any Hazardous
Substances from the Facility, and will not directly or indirectly
transport or arrange for the transportation of any Hazardous
Substances from the Facility, or permit or suffer any subtenant,
licensee, occupant or operator of the Facility to do so, except in
strict compliance with applicable Hazardous Materials Laws. Tenant
covenants and agrees to maintain the Leased Premises at all times
free of any Hazardous Substances, except in compliance with all
Hazardous Materials Laws, and to handle and dispose of all "red
bag" or other bio-hazardous wastes in accordance with
applicable Hazardous Materials Laws.
Tenant hereby agrees: (i) to
promptly transmit and to cause any of its subtenants, licensees,
occupants or operators, if any, to transmit to Landlord copies of
any citations, orders, notices or other material governmental
communications received by Tenant or any such subtenant, licensee,
occupant or operator, if any, with respect thereto, (ii) to
observe and comply and to cause any of its subtenants, occupants or
operators to comply with any and all Hazardous Materials Laws or
any other statutes, laws, ordinances, rules and regulations,
licensing
Page 13 of 38
requirements or conditions relating to the use, maintenance,
storage, release, discharge and disposal of any Hazardous
Substances used, maintained, kept or stored on the Leased Premises
by Tenant or such subtenant, licensee occupant or operator, if any,
and to observe and comply with all orders or directives from any
official, court or agency of competent jurisdiction relating to the
use or maintenance or requiring the removal, treatment, containment
or other disposition of any such, Hazardous Substances, and
(iii) to pay or otherwise dispose (or cause any of its
subtenants, licensees, occupants or operators) of any fine, charge
or Imposition related thereto which, if unpaid, would constitute a
lien on the Facility. Any cost, expense, loss or damage incurred or
suffered by Landlord and directly attributable to the failure of
Tenant strictly to observe and perform the foregoing requirements
(including, without limitation, reasonable attorneys’ fees
and expenses), shall be reimbursed to Landlord promptly upon demand
and, until paid, shall bear interest at the Overdue Rate.
In addition to the foregoing
covenants, Tenant further covenants and agrees that it shall
perform all necessary work or cause any of its subtenants,
licensees, occupants or operators, if any, of the Leased Premises
to perform all necessary work to clean up and properly remediate
any and all Hazardous Substances which then may be present in, on
or about the Leased Premises and/or Common Areas (if caused by
Tenant) upon vacating the Leased Premises. All such clean up and
remediation shall be done in strict compliance with Hazardous
Material Laws and Tenant shall vacate the Leased Premises leaving
it in such condition as to be in compliance with all Legal
Requirements and applicable Hazardous Material Laws in all
respects.
Tenant will protect, indemnify and
save harmless Landlord, its principals, officers, directors, agents
and employees from and against all liabilities, obligations,
claims, damages, penalties, costs and expenses (including, without
limitation, reasonable attorneys fees and expenses) which may be
imposed upon or incurred by or asserted against any of them by
reason of any failure on the part of Tenant to perform or comply
with any of the terms of this Section 6 .
6.3 Environmental Matters
— Landlord Responsibilities. Landlord shall require all
contractors, subcontractors, laborers, materialmen or vendors which
Landlord retains to provide services within the CSLSC to comply
with all Hazardous Materials Laws. Landlord shall also include
provisions substantially similar to Section 6.2 in all CSLSC
leases to other tenants.
Except in compliance with all Hazardous Materials Laws, Landlord
will not store or dispose of nor permit any tenant, licensee,
occupant or operator to store or dispose of any Hazardous
Substances, the removal of which is required or the maintenance of
which is prohibited or penalized by any Hazardous Substances Law,
on the CSLSC. Landlord will not cause, allow or permit the release
or discharge of any Hazardous Substances from the CSLSC, except in
strict compliance with applicable Hazardous Materials Laws.
Landlord will protect, indemnify and save harmless Tenant, its
principals, officers, directors, agents and employees from and
against all liabilities, obligations, claims, damages, penalties,
costs and expenses arising from any gross negligence on the part of
the Landlord to perform or comply with any of the terms of this
section 6.3
Page 14 of 38
ARTICLE 7.
LEGAL AND INSURANCE REQUIREMENTS
7.1 Compliance with Legal and
Insurance Requirements. Tenant, at its expense, will and will
cause subtenants, licensees, occupants and operators, if any,
promptly (a) to comply with all Legal Requirements and
Insurance Requirements in respect of the use, operation,
maintenance, repair and restoration of the Leased Premises, whether
or not compliance therewith shall require structural change in any
of the Leased Premises or interfere with the use and enjoyment of
the Leased Premises, and (b) to procure, maintain and comply
with all licenses, permits and other authorizations required for
(i) any use of the Leased Premises then being made, including
but not limited to the Primary Intended Use and for (ii) the
proper erection, installation, operation and maintenance of the
Leased Premises or any part thereof, and any improvements,
additions or alterations thereto.
7.2 Legal Requirement
Covenants. Tenant covenants and agrees that the Leased Premises
shall not be used for any unlawful business, use or purpose or for
any business, use or purpose that is in violation of any laws,
ordinances, orders, regulations, codes or zoning classifications of
any governmental authority having jurisdiction over the Leased
Premises. Tenant shall, directly or indirectly with the cooperation
of Landlord, but at Tenant’s sole cost and expense, acquire
and maintain all licenses, certificates, permits and other
authorizations and approvals needed to operate the Leased Premises
in its customary manner for the Primary Intended Use and any other
use conducted on the Leased Premises as may be permitted from time
to time hereunder. Tenant further covenants and agrees that
Tenant’s use of the Leased Premises and Tenant’s
maintenance, alteration, and operation of the same, and all parts
thereof, shall at all times conform to all applicable Legal
Requirements in all respects. Tenant will protect, indemnify and
save harmless Landlord, its principals, officers, directors, agents
and employees from and against all liabilities, obligations,
claims, damages, penalties, costs and expenses (including, without
limitation, reasonable attorneys fees and expenses) which may be
imposed upon or incurred by or asserted against any of them by
reason of any failure on th
|
