LEASE AGREEMENT

EXHIBIT 10.1

LEASE AGREEMENT

      THIS LEASE AGREEMENT (the “Lease” ) dated as of the 17th day of August, 2007, to be effective on the date last executed below, under the terms and conditions 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” ).

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) Thirty-Thousand (30,000) square feet of rentable space (as determined under applicable BOMA standards) in the area designated on Exhibit A hereto (herein the “Leased Premises”) in the office building being constructed or to be constructed by Landlord and known as “Building C” of the Cool Springs Life Sciences Center (herein “CSLSC” ) located at 389-C Nichol Mill Lane (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.”

      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 earlier of (a) the date in which the Tenant Improvement Work (hereinafter defined) commences; or (b) the date in which the Building Shell has reached Substantial Completion ( the “Commencement Date”). Anticipated start date for the Tenant Improvement Work is on or about March 1, 2008, but the actual start date for the Tenant Improvement Work shall be mutually agreed upon by the parties, in writing. 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. The “Substantial Completion” of the Building shall mean that either (1) the Landlord’s architect shall have delivered its Certificate of Substantial Completion for the Building Shell in which the Leased Premises are located (herein the “Building Shell” ), or (ii) the Landlord shall have obtained a Certificate of Occupancy or the local equivalent for the Building Shell from the appropriate City and/or County authorities. Substantial Completion of the Building shall occur no more than six (6) months after the construction of Tenant Improvement Work within the Building has begun or Tenant will be

entitled to a fifty percent (50%) reduction in the Base Rent for each month or portion thereof beyond such six (6) months until the Substantial Completion of the Building Shell. Tenant shall have the right to extend the term of this Lease for a period of five (5) years ( “First Extension Term” ) upon written notice to Landlord, no later than 12 months prior to the Term Expiration Date of the Initial Term. 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 year prior to the First Extension Term, plus any increase as provided for in Section 3.3 of the Lease and escalating each year thereafter as provided for 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 written notice to Landlord, no later than 12 months prior to the Term Expiration Date of the First Extension Term. 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 3.3 and escalating each year thereafter as provided for 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, including any and all extensions of any kind, whatsoever, allowed for by this Lease, this Lease shall terminate as to the Facility (the “Term Expiration Date” ).

     (b) In accordance with the provisions of Section 1.2 (a) of this Lease, Landlord shall notify Tenant in writing of the exact date of the Commencement Date once the Commencement Date has been determined.

     (c) If condemnation, in whole or in part, or any threat of condemnation or similar taking occurs or if a casualty of any type occurs respecting the Facilities or any part thereof prior to the Commencement Date, Landlord may, either (a) cancel this Lease, in which event this Lease shall become null and void, and the parties hereto shall be released of all obligations to each other, except for any obligations which, by their terms, expressly survive, or (b) rebuild the Leased Premises, or any portion thereof, in which event this Lease shall remain in full force and effect. Under no circumstances prior to the Commencement Date shall Tenant have any interest in insurance or condemnation proceeds payable as a result of either a condemnation or other taking or as a result of casualty.

     (d) The parties hereto hereby acknowledge and agree that the Landlord’s obligations and those of its successors and assigns under this Lease, where applicable, are conditioned on and subject to (a) Landlord’s securing all necessary or desirable regulatory, subdivision, zoning or other permits or approvals for the construction, operation and use of the Building for the purposes to which Landlord desires, all as Landlord may determine in its discretion; (b) the Landlord’s obtaining of financing for construction and/or permanent ownership of the Building; and (c) the construction of the Building and the Common Areas, all as Landlord may determine in its discretion. In the event that the foregoing conditions are not satisfied or the Landlord determines that it is or will be unable to fulfill any of the foregoing conditions, then Landlord may terminate this Lease immediately by delivering in writing notice thereof to the Tenant.

     (e) Tenant understands Landlord cannot guarantee completion of the Building by any certain date. Tenant acknowledges and agrees that (a) Landlord will not be liable for any delays in completion of the Tenant Improvements; (b) Landlord will not have to make for or provide

Tenant with any alternative accommodations or compensate for Tenant’s costs as a result of any delays; and (c) any delays will not permit Tenant to cancel or amend this Lease or otherwise diminish any of Tenant’s obligations under this Lease. Tenant acknowledges and agrees that the granting of any limited right of possession or access by Landlord to Tenant prior to the Commencement Date shall not constitute a waiver by Landlord of any of Landlord’s rights or Tenant’s obligations under this Lease.

     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, and, to the extent this Lease may be extended or renewed, any Renewal Term or Extension Term of this Lease. Nothing in this Lease shall be interpreted or construed to permit Tenant to shorten the Term of this Lease, other than as specifically provided for in Section 13 and Section 14.

ARTICLE 2
GLOSSARY OF TERMS

      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.

“BOMA” means the Building Owners’ and Managers’ Association. References to area measurements which refer to BOMA shall mean and refer to the BOMA publication “Standard Method for Measuring Floor Area in Office Buildings,” ANSL’BOMA Z65.1.

“Building” means the entire building known as Building C of the CSLSC located at 389-C 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.

“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. Common Areas shall not include any area or rentable space that cannot be leased or accessed by other tenants of the Facility due to the layout, design or use of Leased Premises by Tenant.

“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.

“Security Deposit” has the meaning given it in Section 4.6 .

“Event of Default” has the meaning set forth in Section 15.1 .

“Facility” has the meaning set forth in Section 1.1(b) .

“Fast-Track Grant” shall mean the Fast-Track Grant received from the State of Tennessee related to Building C.

“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 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.

“Large Tenant” shall have the meaning set forth in Article 25 .

“Lease” means this Lease Agreement.

“Lease Year” has the meaning set forth in Section 1.2 .

“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 Facility.

“Officer’s Certificate” means a certificate of Tenant signed by the Chief Executive Officer or another officer authorized to so sign by the Board of Directors, or any other person whose power and authority to act has been authorized by delegation in writing by any of the persons holding the foregoing offices.

“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.

“Percentage of Leased Space” shall have the meaning set forth in Section 3.2 .

“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 3.3 and also includes Additional Rent as defined in Section 4.1 .

“Replacement Property” has the meaning set forth in Section 8.1(e) .

“Rentable Square Footage” shall mean the 30,000 square feet of space rentable within the Building C and rented by Tenant herein.

“Security Deposit” has the meaning given it in Section 4.6 .

“Substantial Completion” has the meaning given it in Section 1.2(a) .

“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 Improvement Allowance” 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 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 $25.00 multiplied by the Thirty-Thousand (30,000) 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 Seven-Hundred and Fifty Thousand and 00/100 Dollars ($750,000.00) , shall be due and payable in twelve (12) equal monthly installments in the amount of Sixty-Two Thousand, Five-Hundred and 00/100 Dollars ($62,500.00) 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 Rent Reduction. The Base Rent set forth in Section 3.1 shall be reduced on a monthly basis as the occupancy of the Building increases as defined in this Section 3.2 below. The occupancy of the Building shall be calculated by taking the number of square feet in the Building upon which rent is being received each month by Landlord, divided by the total number of rentable square feet in the Building (x 100), which shall yield the “Percentage of Leased Space.” This rent reduction shall be calculated on a monthly basis, and adjusted quarterly. The rent reduction under this Section 3.2 shall be as follows:

          (a) When the Percentage of Leased Space of the Building is sixty-seven percent (67%) or more, the Base Rent shall be reduced by a total of Two Dollars and 00/100 ($2.00) per square foot;

          (b) When the Percentage of Leased Space of the Building is eighty-three percent (83%) or more, the Base Rent shall be reduced by a total of Three dollars and 00/100 ($3.00) per square foot; and

          (c) When the Percentage of Leased Space of the Building is ninety-five percent (95%) or greater, the Base Rent shall be reduced by a total of Four Dollars ($4.00) per square foot.

      3.3 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 adjustments as set forth in this Section 3.3 . 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 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.

      3.4 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.

     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, 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 to 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 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, 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;

          (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. Simultaneously with Tenant’s execution of this Lease, Tenant shall deliver the Security Deposit of Three-Hundred and Seventy-Five Thousand and No/100 Dollars ($375,000.00) to Landlord. The Security Deposit shall secure the performance of all of Tenant’s obligations and liabilities under this Lease, and shall be in addition to any and all remedies which may be permitted by law or by other provisions of this Lease. To the maximum extent permitted under applicable laws, Landlord may commingle the Security Deposit with its other funds. No interest shall be earned, paid, payable or owing to Tenant with respect to the Security Deposit, and Landlord may retain all interest and other amounts generated thereby. Landlord may, from time to time and without prejudicing any other remedy available under this Lease, at law or in equity, apply the Security Deposit to: (i) pay any past due Rent; (ii) reimburse Landlord for any damages, injuries, expenses or liabilities that it suffers or incurs as a result of Tenant’s default under this Lease; or (iii) cover the cost of curing any Event of Default. Following any application of the Security Deposit by Landlord, Tenant shall pay to Landlord, upon demand, the amount of the Security Deposit so applied in order to restore the Security Deposit to its original amount. Although the Security Deposit shall be deemed the property of Landlord, if Tenant fully and faithfully complies with all of the terms hereof, any remaining balance of the same shall be reduced by One-Hundred and Eighty-Seven Thousand, Five-Hundred and No/100 dollars ($187,500.00) upon the earlier of either (a) Landlord obtaining permanent financing for the Building, or (b) at the end of the 2nd Lease Year, payable to Tenant within thirty (30) days of Tenant’s written request to Landlord following the expiration of the 2 ^nd Lease Year or the Landlord obtaining permanent financing on the Building. Although the Security Deposit shall be deemed the property of Landlord, any remaining balance of the same

shall be returned to Tenant within sixty (60) days after the later of the termination of this Lease, or the date all of Tenant’s obligations and liabilities under this Lease are satisfied. Landlord shall assign the Security Deposit to any person or entity that acquires Landlord’s interest in the Leased Premises, whereupon Landlord shall have no further liability or responsibility for its return to Tenant.

      4.7 Performance Guarantee. BMTI shall guarantee satisfying its obligations under the “Fast-Track Grant” and this Lease.

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.

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” ). 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 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 Landl