Exhibit 10.1
LEASE AGREEMENT
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TENANT:
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BioVeris Corporation
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PREMISES:
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Approximately 112,318 square feet of a certain
portion of the building located at 16050 Industrial Drive
Gaithersburg,
MD
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LEASE SUMMARY SHEET
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TENANT:
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BioVeris Corporation
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BROKER:
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TSC Realty Services
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PREMISES:
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Approximately 112,318 rentable square feet of a
certain portion of the building located at 16050 Industrial Drive
Gaithersburg, MD
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BASE RENT:
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$9.10 NNN per square foot annually for initial
year, see Section 3 (a)
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SECURITY DEPOSIT: $85,174.00
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PERMITTED USE:
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Light manufacturing, distribution, laboratory,
office and storage facility subject to all applicable laws,
ordinances, codes, regulations, rules, statutes and requirements of
any federal, state, or local governmental body or
agency.
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LANDLORD'S NOTICE ADDRESS:
BT-NEWYO, LLC
c/o UPS Properties
Attn: Larry Hobbs
55 Glenlake Parkway, N.E.
Atlanta, GA 30328
BioVeris Corporation
16020 Industrial Drive
Gaithersburg, MD 20877
Attn: President
ADDRESS FOR RENT PAYMENT:
BT-Newyo, LLC
C/O Nardi Management Services
11800 Baltimore Ave
Suite 11800
Beltsville, MD 20705
ATTN: Rhonda Manser
TABLE OF CONTENTS
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5
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Maintenance and Repairs
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10
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9
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Insurance and Tenant's Indemnity
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13
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12
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Use and Compliance with Law
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17
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13
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Environmental Compliance
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18
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16
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Landlord's Default; Limitation on Landlord's
Liability
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23
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17
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Rights Reserved by Landlord
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23
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22
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Subordination and Estoppel
Certificates
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26
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25
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Right to First Offer
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30
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Exhibits
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A
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Premises
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B
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Intentionally Omitted
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C
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Rules and Regulations
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D
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Industrial Building Sign Criteria
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E
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Alterations
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F
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Intentionally omitted
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G
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Original Condition and Original Condition
Drawing
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H
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BSL-1 and BSL-2 Standards
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COMMERCIAL LEASE AGREEMENT
THIS COMMERCIAL LEASE AGREEMENT
(“Lease”) is made the 1st day of July, 2005, between
BT-Newyo, LLC, a Delaware limited liability company, with an
address at 55 Glenlake Parkway, NE., Atlanta, GA 30328 ("Landlord")
and BioVeris Corporation, with an address at 16020 Industrial
Drive, Gaithersburg, MD 20877 ("Tenant").
W I T N E S S E T H :
1. Premises. (a) Landlord
leases to Tenant, and Tenant hereby takes from Landlord all that
certain space comprising approximately 112,318 rentable square feet
shown on Exhibit A attached hereto and incorporated herein (the
"Premises") in the building (the "Building") situated on the land
described on Exhibit A attached hereto and incorporated herein (the
“Land”) pursuant to this Lease, at 16050 Industrial
Drive, Gaithersburg, MD 20877, all upon the terms and conditions
set forth in this Lease.
(b) Tenant acknowledges that (i) it
has inspected and accepted the Premises, (ii) the Premises are
suitable for the purpose for which they are leased and are in good
and satisfactory condition, (iii) Landlord has made no
representation or warranty concerning the suitability of the
Premises for Tenant's intended use including but not limited to the
zoning of the Premises, or the condition of the Premises, and (iv)
Landlord has not promised to alter, repair, remodel or improve the
Premises.
(c) "Tenant's Proportionate Share"
shall mean thirty eight and 22/100 percent (38.22%), which
represents the ratio of the square footage of the Premises to the
square footage of the Building.
(d) Throughout the Term and to the
extent such property is not removed by the current tenant and to
the extent the same constitutes property of the Landlord, Tenant
shall have the right to use all furniture and equipment listed in
Exhibit G which is attached hereto and made a part hereof existing
in the Premises as of the Commencement Date including but not
limited to cafeteria equipment and Kitchen Area infrastructure, and
internal phone/data wiring equipment and racking. Tenant shall
maintain all such furniture and equipment in good condition and
repair and shall return to the same to Landlord in its Original
Condition , as defined in Exhibit G
hereto, subject to normal wear and tear. Notwithstanding anything
to the contrary herein, Landlord may in its sole and absolute
discretion, notify Tenant prior to the termination of this Lease to
remove all or any portion of such equipment and furniture and if so
notified by Landlord, Tenant shall remove such furniture and
equipment at the termination of the Lease and make all necessary
repairs to the Premises and restore the Premises to the condition
existing prior to the installation of such furniture and equipment.
Landlord makes no representations or warranties whatsoever
regarding such furniture and equipment and shall have no liability
whatsoever to Tenant regarding such furniture and equipment
including but not limited to title to such property or the
condition of such property. Tenant accepts such furniture and
equipment in its “AS-IS, WHERE –IS, WITH ALL
FAULTS” condition.
2. Term . The term of this
Lease shall be for a period of one hundred twenty (120) months (the
"Term"), commencing on the date hereof (the “Commencement
Date”), and ending one hundred twenty (120) months thereafter
unless sooner terminated, as provided
in the Lease. Notwithstanding
anything to the contrary herein, Landlord shall not be in default
hereunder or liable to Tenant in any way if Landlord is unable to
deliver possession of the Premises on the date specified above for
the Commencement Date, and the Commencement Date shall be that date
on which Landlord is able to tender possession and the termination
date specified shall be extended accordingly to include the full
period stated in this paragraph. Landlord and Tenant shall within
ten (10) days after the Commencement Date execute a memorandum
specifying the Commencement Date and the expiration
date.
3. Rent. (a) Tenant shall pay
the “Base Rent” commencing on Commencement Date as
follows.
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Lease
Year
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Rent Per Square Foot
(NNN)
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Monthly Base
Rent
Triple
Net
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1
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$9.10
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$85,174.48
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2
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$9.37
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$87,729.72
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3
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$9.65
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$90,361.61
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4
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$9.94
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$93,072.46
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5
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$10.24
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$95,864.63
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6
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$10.55
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$98,740.57
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7
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$10.87
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$101,702.79
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8
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$11.19
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$104,753.87
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9
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$11.53
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$107,896.49
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10
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$11.87
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$111,133.38
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All Rent (hereinafter defined) shall
begin as of the Commencement Date and shall be adjusted
proportionately for any partial month at the beginning or end of
the Term. All Rent shall be payable without prior notice or demand
except as expressly set forth herein, and without offset, deduction
or counterclaim, in lawful money of the United States of America,
to Landlord at the address set forth on the Lease Summary Sheet or
at such other place as Landlord may from time to time designate by
written notice. The first “Lease Year” shall commence
on the Commencement Date and end on the last day before the first
anniversary of the Commencement Date.
(b) This Lease is what is commonly
called a "Triple Net Lease", it being agreed that Landlord shall
receive the Base Rent set forth in Article 3(a) free and clear of
any and all impositions, taxes, real estate taxes, liens, charges
of any nature whatsoever in connection with the ownership and
operation of the Premises together with the Building and Land.. In
addition to the Base Rent reserved in Article 3(a), Tenant shall
pay as Additional Rent its proportionate share as stipulated below
of all impositions, insurance premiums, operating charges,
maintenance charges, management fees, expenses, construction costs,
and any other costs or expenses which arise or may be contemplated
under any provisions of this Lease during the Term
(“Operating Expenses”).
Notwithstanding anything to the
contrary herein, Operating Expenses shall expressly not include the
following:
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(1)
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Depreciation, amortization, bad debt losses and
reserves thereof;
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(2)
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Interest points, fees and principal payments on
mortgage and other debt costs, if any, or amortization on any
mortgage or mortgages or any other debt instrument encumbering the
Building;
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(3)
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Payments pursuant to any ground lease or master
space lease;
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(4)
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Expenses directly resulting from the breach of
this Lease by Landlord, or the gross negligence of Landlord, its
agents, contractors or employees;
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(5)
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Costs for which the Landlord receives actual
reimbursement by its insurance carrier, and tenant’s carrier,
any tenant, any warrantor or any other third party;
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(6)
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Any bad debt loss, rent loss, or legal fees
incurred in collecting rent or other obligations from Building
tenants excluding the Tenant for which Tenant shall be liable for
100% of the same;
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(7)
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Costs associated with the operation of the
business of the person or entity that constitutes Landlord, as
distinguished from the costs of operation of the Building, costs of
defending any lawsuits with any prospective or actual purchaser,
ground lessor or mortgagee, costs of selling, syndicating,
financing, mortgaging or hypothecating any of the Landlord’s
interest in the Building, costs of any disputes between Landlord
and its employees, disputes of Landlord with Building management,
and outside fees paid in connection with disputes with other
tenants;
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(8)
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The wages of any employee of Landlord to the
extent such time is not attributable to servicing the Building,
Land or tenants Management fees to the extent such fees materially
exceed that amount which a prudent property owner would pay within
a ten mile radius of the Gaithersburg, Maryland area for the
management of a similar property in a similar condition with
similar tenants in a similar manner as Landlord;
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(9)
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Fees for services rendered by an affiliate of
the Landlord to the extent such fees exceed the market rate for
comparable services if rendered by unrelated third parties of
comparable quality as determined by Landlord;
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(10)
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Fines, penalties, late payment charges and
interest arising from the grossly negligent acts of the Landlord or
failure timely to make tax and/or other payments provided that
Tenant has made all payments due hereunder timely and provided that
any such penalties or fines are not attributable to the acts or
omissions of Tenant;
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(11)
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Estate taxes, excise taxes, franchise taxes, and
income taxes;
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(12)
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Salaries and other compensation paid to
executive employees above the grade of building manager(including
profit sharing, bonuses and other employee benefit
plans);
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(13)
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Assessments to the extent paid in fewer than a
maximum number of installments permitted by the taxing authority
provided that Landlord shall not be required to make any changes to
any current payments of assessments, if any;
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(14)
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Rental for items(except when needed in
connection with normal repairs and maintenance of permanent systems
typically rented for such purposes), which if purchased rather than
rented, should be treated as a capital improvement under normal
accounting rules) but in which case such cost shall be amortized
over the useful life of the item as such life is determined by
Landlord;
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(15)
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Costs associated with the leasing of the
Building to other tenants including leasing commission, space
planners’ fees, attorneys’ fees, advertising expenses,
expenses incurred in connection with the negotiation and
preparation of proposals, deal memos, letters of intent, leases,
subleases, and/or assignments, space planning costs and other costs
and expenses incurred in connection with lease, sublease and/or
assignment negotiations and transactions with present or
prospective tenants or other occupants of the Building;
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(16)
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Utilities or other costs paid directly by Tenant
to the extent the same are separately metered to Tenant;
and
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(17)
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Costs of additional services provided by
Landlord to any tenant in the Building that are the sole
responsibility of such tenant or such additional services rendered
to a tenant for the sole benefit of that tenant’s particular
use of such tenant’s premises. In addition to the foregoing,
all Operating Expenses shall be reduced by all cash discounts, to
the extent actually received by Landlord in the purchase of any
goods, utilities or services in connection with the operation of
the Building and the Land.
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All amounts due pursuant to this
Section 3(b) and any amounts due under this Lease shall constitute
additional charges and, upon the failure of Tenant to pay any of
such amounts when due, Landlord shall have the same rights and
remedies as otherwise provided in this Lease for the failure of
Tenant to pay rent. During each month of the term of this Lease, on
the same day that Base Rent is due hereunder, Tenant shall escrow
with Landlord an amount equal to 1/12 of the estimated annual cost
of its proportionate share of such Operating Expenses. Tenant
authorizes Landlord to use the funds deposited with Landlord under
this Paragraph 3(b) to pay Operating Expenses Landlord shall
deliver to Tenant its reasonable estimate of Operating Expenses for
the coming calendar year and Tenant’s proportionate share
thereof. Landlord shall have the right to increase or decrease said
estimate one time during each calendar year to reflect the actual
projected Operating Expenses. If Landlord’s Operating Expense
Statement (as defined in Section 3(g)) indicates that
Tenant’s escrow payments are less than the Tenant’s
actual proportionate share of Operating Expenses, Tenant shall pay
the difference to Landlord within thirty (30) days after receipt of
Landlord’s Operating Expense Statement. If the total escrow
payments of Tenant are more that Tenant’s actual
proportionate share of Operating Expense, Landlord shall retain
such excess and credit it against Tenant’s next monthly
escrow payments; provided, however, that in the event of the
expiration or earlier termination or the Lease, Landlord shall
deliver to Tenant within thirty (30) days after a determination of
the same, any amounts that would otherwise have been credited to
Tenant. The provisions of this Section 3(b) and of Section 3(g)
shall survive the expiration or earlier termination of this lease.
The amount of the estimated initial monthly escrow payments are as
follows:
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(1) Tax Escrow Payment . . . . . . . . . . . . .
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$ 4,605.04
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(2) Insurance Escrow Payment . . . . . . . . . .
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$ 1,137.63
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(3) Utility Charge . . . . . . . . . . . . . . .
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$
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--
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(4) Common Area Charge. . . . . . . . .
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$ 3,886.91
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(5) Other (including ground rent if any
and
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amortization of Tenant Improvement's
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---
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management fees). . . . . . . . . . . . . .
......
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_________
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ESTIMATED INITIAL MONTHLY ESCROW
PAYMENT
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$ 9,739.58
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(c) All Base Rent and Additional
Rent and all other sums payable by Tenant under this Lease are
referred to collectively herein as "Rent", and shall be collectible
by Landlord as rent. If Tenant fails to pay any Rent as required in
this Lease, Landlord shall have the same rights and remedies as for
a failure to pay Base Rent, without prejudice to any other right or
remedy available therefore.
(d) The Rent under this Lease is
intended to be net to Landlord, except that Landlord shall be
responsible for the maintenance obligations in Section
5(a)(i). All other charges and expenses imposed upon the
Premises or in connection with its use, occupancy, and control
shall be paid by Tenant.
(e) Any Rent not paid within ten
(10) days after its due date shall bear interest from the due date
until paid at the rate of eighteen percent (18%) per annum or the
highest interest rate allowed by law, whichever is lesser (the
"Default Rate"). Such interest shall constitute Rent hereunder.
Payment of such interest shall not excuse or cure any default by
Tenant.
(f) No payment by Tenant or receipt
by Landlord of an amount less than the Rent payable hereunder shall
be deemed to be other than a payment on account of unpaid Rent, nor
shall any endorsement or statement on any check or any letter
accompanying any check or payment for Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rent
and pursue any other remedy provided herein or by law.
(g) Landlord will provide Tenant
with a reconciliation statement for the Operating Expenses actually
expended by the Landlord during the applicable previous calendar
year with reasonable detail, Tenant’s proportionate share
thereof and the amount previously delivered by Tenant
(“Operating Expense Statement”) within 90 days of the
end of each calendar year. Provided that Tenant is not in default
of any of the terms of this Lease, Tenant shall have the right, not
later than ninety (90) days following the receipt of such statement
and upon the condition that Tenant shall first deposit with
Landlord the full amount in dispute, to cause Landlord's books and
records maintained by Landlord with respect to such Operating
Expenses of the Premises for such fiscal year to be audited by
certified public accountants selected by Tenant and subject to
Landlord's reasonable right of approval or reviewed by Tenant. In
no event, however, shall such auditor be compensated by Tenant on a
“contingency” basis, or on any other basis tied to the
results of the audit. Tenant shall bear all costs of any such audit
unless the audit reveals included items that should not be included
in excess of 10%, then Landlord shall pay the reasonable cost of
the audit. If Tenant shall not request an audit in accordance with
the provisions of this Paragraph 3(g) within ninety (90) days after
receipt of such Landlord's statement , such statement shall be
final and binding for all purposes hereof. Any failure to deliver
the Operating Expense Statement within such 90 day period shall not
cause any forfeiture by Landlord of any amounts due Landlord or
prejudice to Landlord from exercising any of its rights
hereunder.
As a material consideration of this
right to audit, Tenant shall not disclose any part of its audit
(including any documents received or prepared by Tenant or
Tenant’s employees or agents or others acting on
Tenant’ s behalf) to any party including but not limited to
other tenants, subtenants, occupants or their employees, agents or
consultants, of the Building other than Tenant’s accountant,
lawyer and other professional consultants on a need-to-know basis,
all of whom have executed a confidentiality agreement in favor of
Tenant and which confidentiality agreement is acceptable to Tenant
and except as required by applicable laws, regulations or orders.
Tenant indemnifies, defends and holds Landlord harmless from any
loss (including consequential damages), injury, costs, or
liability
incurred by Seller which results
from Tenant’s failure or the failure of its employees,
agents, attorneys, affiliated companies, contractors, or lenders to
maintain confidentiality.
The right to audit shall be personal
to Tenant and may not be asserted by any assignee or
sublessee.
(h). Tenant shall pay all taxes,
assessments and charges of any kind which shall be levied, assessed
or charged upon Tenant’s leasehold interest in the Premises
or upon personal property owned by the Tenant and at any time
located within the Premises, and any and taxes assessments, and
charges of any kind which shall be levied, assessed or charged upon
any and all improvements, alterations, additions, made within the
Premises by or on behalf of the Tenant. Accordingly, Tenant shall
report such leasehold improvements as personal property in the
statement of assessable property that Tenant is required to file
and shall cooperate with the Landlord in insuring that such
leasehold improvements are not assessed as real
property.
4. Utilities. Tenant shall
pay when due all charges for all utilities and services for every
kind supplied to or imposed against the Premises, including without
limitation water, air conditioning, sewage, heat, gas, sprinkler
charges, light, garbage, electricity, telephone, steam, power, or
other public or private utilities (collectively, "Utilities").
Tenant shall also pay for all Utilities, if any, used by it or its
agents, employees or contractors prior to the Commencement Date.
Tenant shall pay to Landlord as Additional Rent, Tenant's pro rata
share, as determined by Landlord, of all charges for jointly
metered or billed Utilities including the water servicing the
Premises and common areas and such utilities servicing the common
areas. As of the date of this Lease, water and common area lighting
are the only jointly metered Utilities.
In the event electricity, gas, water
or sanitary sewer service to the Premises is interrupted as a
result of the gross negligence or willful misconduct of Landlord,
its employees, agents or contractors and such interruption results
in the Premises being untenantable for five (5) or more consecutive
business days, then as Tenant’s sole remedy, the Base Rent
due under this Lease will abate, beginning on the sixth (6th)
business day after the commencement of such interruption to the
extent that the Premises remains untenantable and continuing until
the date on which the interrupted utility service is
restored.
5. Maintenance and Repairs.
(a) (i) Landlord, at Landlord’s sole cost and expense, shall
maintain the structural soundness of the roof, foundation and
exterior walls of the Building and any utility lines and
transformers that Landlord owns in good condition and repair,
reasonable wear and tear excluded, except that Tenant shall be
responsible for any repairs or replacements necessitated by the
negligence or willful misconduct or other acts of Tenant, its
agents, contractors, employees and invitees. Notwithstanding
anything to the contrary herein, in the event that Tenant shall be
responsible for any repairs or replacements arising from the
negligence or willful misconduct of Tenant, its agents,
contractors, employees and invitees, Landlord shall have the
option, but not the obligation, to make such repair or replacement
at Tenant’s cost and expense. Tenant shall pay to Landlord
within thirty (30) days of receipt of an invoice, the cost of such
repair and replacement The term "walls" as used in this Section
5(a)(i) shall exclude windows, glass or plate glass, floors,
special store fronts or office entries. Tenant shall immediately
give
Landlord written notice of any
defect or need for repairs, after which Landlord shall have
reasonable opportunity to repair or cure such defect.
(ii) Landlord shall also maintain
the landscaping, parking areas including snow removal and other
common facilities on the Land and the pump room, if any, in good
condition, and Tenant shall reimburse Landlord for Tenant's
Proportionate Share of such costs pursuant to Section
3(b).
(b) Tenant shall keep the Premises
and all parts thereof in a clean and sanitary condition and free
from all trash and other objectionable matter. Tenant shall keep
and maintain the Premises, including without limitation, all
floors, subfloors, floor coverings, windows, ceilings, skylights,
air conditioning, and ventilating systems, and loading areas in
good condition and repair in all respects normal wear and tear
excepted. If it is not practical to repair any of the foregoing,
Tenant shall replace them as necessary. All repairs and
replacements made by Tenant shall be at least equal in quality and
class to the original work and materials. Tenant shall enter into
maintenance and service agreements acceptable to Landlord with
contractors approved by Landlord for regular servicing of all
heating, hot water, air conditioning and ventilating systems
provided by the Landlord within the Premises. Tenant shall,
immediately upon breakage, replace all broken glass in the Premises
with glass at least equal to the specification and quality of the
glass so replaced. Notwithstanding the foregoing, Landlord shall
have the option at any time and from time to time for any period or
periods, upon notice to Tenant, to assume any or all of the
foregoing maintenance and repair responsibilities (including the
obligation to enter into maintenance contracts) and to require
Tenant to reimburse Landlord, as Additional Rent, for the cost of
all such services (or contracts, as the case may be) upon thirty
(30) days notice.
(c) Except for the obligations of
Landlord expressly stated in Section 5(a) herein, Landlord
shall have no obligations whatsoever to repair and maintain Land,
Building, Premises or any part thereof or equipment therein,
whether structural or nonstructural.
6. Alterations. (a) Except as
set forth on Exhibit E to this Lease wherein Landlord conceptually
agrees to such alterations subjects to Landlord’s approval of
plans and specifications for the same which to date have not been
delivered to Landlord, Tenant shall not, without Landlord's prior
written approval, make any alterations, additions or improvements
to the Premises, whether interior or exterior, including without
limitation the installation of lighting fixtures, space heaters,
air conditioning, electrical equipment, power panels, plumbing,
ducts, carpeting or window coverings (collectively, "Alterations"),
provided that Tenant may install such trade fixtures as are
reasonably appropriate if (i) such items do not alter the basic
character of the Building; or overload or damage the same; (ii)
such items may be removed without injury to the Premises; and (iii)
the alterations, additions or improvements are made in compliance
with all Requirements, as herein defined and with Landlord's
specifications and requirements. Landlord shall respond to such
request within thirty (30) calendar days after Landlord’s
receipt of all of the requirements set froth herein and Landlord
shall not unreasonably withhold its consent to any Alterations
which (i) such items do not alter the basic character of the
Building; or overload or damage the same; (ii) such items may be
removed without injury to the Premises; (iii) do not affect the
structure or building systems, (iv) Tenant provides Landlord with a
performance bond in favor of Landlord to
guaranty the full payment for such
Alterations and (v) the alterations, additions or improvements are
made in compliance with all Requirements, as herein defined and
with Landlord's specifications and requirements. Landlord may
require that Tenant remove any or all Alterations in a good and
workmanlike manner so as not to cause any damage to the Premises
and/or Building at the termination of this Lease and that Tenant
restore the Premises to its condition prior to installation of the
Alteration. Unless Landlord requires their removal, all Alterations
shall become the property of Landlord and remain upon the Premises
at the expiration or sooner termination of this Lease.
Landlord’s consent to any such Alteration shall not be
construed to mean that such Alterations are in compliance with all
Requirements, as herein defined. If Tenant makes any Alterations
without the prior written approval of Landlord, Landlord may
require that Tenant remove any or all of the same at any time.
Prior to Tenant making final payment to contractors, Tenant shall
deliver to Landlord:
1. Full and unconditional lien
waivers from all Tenant contractors, subcontractors and suppliers
and
2. Two blue line sets of clear,
definable and comprehensive as-built drawings.
Notwithstanding Section 6 (a) but
subject to Landlord’s approval of the plans and
specifications of such Alteration set forth in Exhibit E which
consent is subject to the terms of 6 (a), Tenant shall have the
right to make the improvements to the Premises set forth on Exhibit
E hereto, subject to the requirements regarding lien waivers in
Section 6(a) and the provisions of Section 6(b) through (d),
Section 9(b) herein and subject to the terms and conditions of this
Lease.
(b) Tenant shall make any
Alterations in a good and workmanlike manner, in accordance with
all applicable laws and such other requirements as Landlord may
impose. Tenant shall obtain all licenses and permits required for
any Alterations or repairs by Tenant. Tenant shall remove any
Alterations required to be removed hereunder and restore the
Premises in a good and workmanlike manner and in accordance with
all applicable Requirements, as herein defined, including but not
limited to applicable state, federal and local law and such other
requirements as Landlord and any governmental or quasi-governmental
agency may impose.
(c) Tenant shall promptly pay and
discharge all claims for services, supplies, labor or materials
furnished or alleged to have been furnished to or for Tenant at or
for use in the Premises.
(d) If Tenant shall fail to remove
such Alterations as required herein, Landlord may keep and use them
or remove any of them and cause them to be stored or sold in
accordance with applicable law, at Tenant’s sole
expense.
7. Signs. Tenant shall not
install any signs, decorations, advertising media, blinds,
draperies or other window treatment or bars or other security
installments visible from outside the Premises without Landlord's
prior written consent, which shall not be unreasonably withheld.
Tenant shall comply in all respects with all Requirements, as
herein defined, and the Sign Criteria attached hereto and made a
part hereof and marked Exhibit D. Tenant shall comply with all
applicable Requirements, as herein defined
including but not limited to all
applicable state, federal and local laws and other requirements of
any governmental or quasi-governmental agency.
8. Surrender. (a) Tenant
shall surrender the Premises and all parts thereof at the
expiration or sooner termination of the Lease in the condition
required to be maintained by this Lease and in a "broom-clean"
condition. Tenant shall, without limiting the foregoing, clean all
concrete floors and patch and fill holes within the Premises.
Tenant shall repair any damage to the Premises occasioned by
removal of Tenant's trade fixtures, furnishings, equipment and
machinery, temporary improvements and any Alteration which Landlord
shall require Tenant to remove. Tenant shall also, prior to
vacating the Premises pay to Landlord the amount, as reasonably
estimated by Landlord to be Tenant's proportionate share of
increases in Real Estate Taxes, insurance and other operating
expenses, incurred during the Term but not paid by Tenant.
Provided, however, that if Tenant’s proportionate share of
Real Estate Taxes, insurance, and other operating expenses exceeds
the actual incurred by Landlord, Landlord shall refund the excess
amount to tenant within 30 days of the expiration or termination of
this Lease.
(b) All obligations of Tenant
hereunder not fully performed as of the expiration or termination
of this Lease shall survive such expiration or termination,
including without limitation all payment obligations with respect
to taxes and insurance premiums and other operating expenses and
all obligations concerning the condition and repair of the
Premises.
9. Insurance and Tenant's
Indemnity. (a) Landlord shall maintain solely for the benefit
of Landlord, the following insurance coverage protecting Landlord,
its agents, partners, officers, directors and employees, and any
mortgagee:
(i) Insurance against damage by
fire, extended coverage perils, vandalism, malicious mischief
perils and boiler and machinery accident, if applicable, including,
without limitation, cost of debris removal and demolition, in an
amount not less than one hundred percent (100%) of the replacement
cost of the building and such deductibles as maintained by
Landlord;
(ii) Landlord's comprehensive
general liability insurance with limits as Landlord may reasonably
require from time to time; and
(iii) Such other insurance coverage
in such amounts as Landlord, may from time to time reasonably
require.
All losses paid under the insurance
carried pursuant to this Section 9(a) , shall, subject to
the rights of any mortgagee, be adjusted by Landlord and the
proceeds thereof shall be payable to Landlord.
(b) Tenant shall maintain the
following insurance coverage:
(i) comprehensive general liability
insurance, insuring against loss, damage or liability for personal
injury bodily injury, or death of any person or loss or damage to
property occurring in, upon or about the premises in the amount of
with a combined single limit coverage of $5,000,000;
(ii) insurance against fire, with
extended coverage, vandalism, malicious mischief, perils, and
boiler and machinery accident and all risks, upon all property
owned by Tenant and located at or within the Premises or for which
Tenant is legally liable, or installed by or on behalf of Tenant,
including, without limitation, furniture, fittings, installations,
Tenant improvements and betterments, fixtures and any other
personal property, in an amount not less than the full replacement
cost thereof;
(iii) worker's compensation
insurance covering all Tenant's employees working in the Premises
as required by applicable law;
(iv) Pollution Liability
Insurance with a limit of liability not less than $3,000,000 per
occurrence environmental insurance; and
(v) insurance against such other
hazards and in such amounts as Landlord may reasonably require and
as at the time are commonly insured against with respect to
buildings similar in character, general location and use and
occupancy to the Leased Property, in relative amounts normally
carried with respect thereto.
(c) Tenant shall require any
contractor performing work on the Premises for Tenant to maintain
workers' compensation insurance as required by all applicable laws
covering all contractors' employees working on the Premises, and
comprehensive general liability insurance, including contractor's
liability coverage, contractual liability coverage, completed
operations coverage, broad form property damage endorsement and
contractor's protective liability coverage, with combined single
limit coverage for each occurrence of not less than
$3,000,000.
(d) If, by reason of changed
economic conditions, any insurance amounts referred to in this
Section 9 become inadequate in Landlord’s sole determination,
Landlord may increase the amounts required by notice to Tenant and
Tenant shall promptly increase or cause to be increased those
coverages to the amounts specified by Landlord so long as any
increase is reasonable and consistent with similar types of risk
maintained by prudent landlords for similar buildings with similar
uses in the Gaithersburg, MD area. All insurance shall be subject
to Landlord's reasonable approval. All such insurance shall be
satisfactory in form and substance to Landlord and shall name
Landlord, United Parcel Service, Inc., a Delaware corporation and
Landlord’s related companies and Landlord’s property
manager and mortgagee, if any, as primary additional insured for
(or, with respect to worker's compensation, contain a waiver of
subrogation endorsement in favor of Landlord, Landlord’s
related companies, Landlord’s property manager and mortgagee,
if any), and shall provide that the policy shall not be canceled
nor shall coverage be reduced thereunder until after thirty (30)
days written notice to Landlord. All such policies required to be
maintained by Tenant must be primary policies and not as
contributing with, or in excess of, the coverage that Landlord may
carry. Tenant shall deposit each policy or a certificate thereof
with Landlord fifteen (15) days prior to the commencement of the
Term, or, with respect to the insurance required under Section
9(c) promptly upon commencement of Tenant's obligation to
procure the same, with proof of payment of the premium therefore.
As soon as practicable prior to the expiration date of any policy,
Tenant shall deliver to Landlord a renewal or replacement policy or
certificate evidencing the existence thereof, with proof of payment
of the premium therefore.
Additionally, United Parcel Service,
Inc., a Delaware corporation, and each of its subsidiaries and
affiliated companies shall be named as primary additional insureds
under any such policies that Tenant is required to maintain
pursuant to this Lease. The insurance requirements set forth in
this Section are independent of the waiver, indemnification,
and other obligations under this Lease and will not be construed or
interpreted in any way to restrict, limit or modify the waiver,
indemnification and other obligations or to in any way limit any
party's liability under this Lease
(e) All insurance required under
this Section 9a (i) and 9 (b) shall provide that the insurer
waives all rights of recovery by way of subrogation against
Landlord and its related companies or Tenant in connection with any
loss or damage covered by such policies. Landlord and Tenant,
notwithstanding any provisions of this Lease to the contrary,
mutually waive their respective rights of recovery against each
other for any loss of, or damage to, either parties’ property
to the extent the loss or damage to the other party’s
property located within or constituting a part or all of the
Building to the extent that the loss or damage is covered by (i)
the injured party’s insurance; or (ii) the insurance the
injured party is required to carry pursuant to Section 9(a) (i) and
9(b) herein, whichever is greater. This provision does not apply to
claims caused by a party’s willful misconduct.
(f) Tenant shall indemnify, defend
and save Landlord and Landlord's agents, employees, partners,
officers and directors and United Parcel Service, Inc., a Delaware
corporation, and each of its subsidiaries and related companies and
Landlord’s property manager and mortgagee, if
any(collectively, the "Indemnities") harmless against and from all
liabilities, claims, suits, fines, penalties, damages, loses, fees,
costs and expenses (including reasonable attorneys' fees) which may
be imposed upon, incurred by or asserted against any of the
Indemnities by reason of:
(i) Any work or thing done in, on or
about the Land or Building or any part thereof by or on behalf of
Tenant or Tenant's officers, employees, agents, subtenants,
contractors, licensees, permitees or invitees;
(ii) Any use, occupation or
operation of the Premises;
(iii) Any act or omission on the
part of Tenant or Tenant's officers, employees, agents, subtenants,
contractors, licenses, permittees or invitees;
(iv) Any incident, injury (including
death) or damage to any person or property occurring in, on or
about the Premises or any part thereof; or
(v) Any breach of Tenant's
obligations under this Lease.
The provision of this Section
9(f) shall survive the expiration or termination of this Lease
with respect to any claims or liability occurring prior to such
expiration or termination.
10. Casualty. (a) If the
Premises or any part thereof is damaged or destroyed by fire or
other casualty Tenant shall immediately notify Landlord. If in
Landlord's estimation, which shall be conclusive, the Building
cannot be fully repaired or restored within one hundred eighty
(180) days after the casualty, Landlord shall notify Tenant within
thirty days (30) after the casualty subject to force majeure
, and Landlord and Tenant each may
terminate this lease by written
notice to Tenant within sixty (60) days after the date of the
damage or destruction.
(b) Unless this Lease is terminated
pursuant to Section 10(a) , Landlord shall, to the extent of
the insurance proceeds received restore the Building to
substantially its previous condition, except that Landlord shall
not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions and other improvements construction
or installed in or about the Premises for the benefit of or by
Tenant. If such restoration has not been substantially completed
within 120 days after the casualty (subject to Section 16(b)
, Tenant may as Tenant's sole remedy terminate this Lease by prompt
written notice to Landlord.
(c)
Unless the damage is
caused by Tenant's negligence or willful misconduct or the
negligence or willful misconduct of Tenant’s agents,
employees, contractors, subcontractors, licensees and invitees, the
Base Rent shall abate in proportion to that part of the Premises
that is not usable by Tenant. The abatement shall continue from the
date the damage occurred and Tenant has vacated the Premises until
the earlier of (a) Landlord has substantially completed the repairs
of the part rendered unusable or (b) Tenant partially or totally
resumes business therein. In the event the damage is caused by
Tenant's negligence or willful misconduct or the negligence or
willful misconduct of Tenant’s agents, employees,
contractors, subcontractors, licensees and invitees then Tenant
shall continue to pay Rent without abatement.
(d) If any damage to or destruction
of all or any portion of the Building is not fully covered by
insurance proceeds received by Landlord, Landlord may terminate
this lease by written notice to Tenant, within fifteen (15) days
after notice to Landlord that said damage or destruction is not so
covered. If any present or future mortgagee requires that insurance
proceeds be applied to the indebtedness secured by its mortgage,
Tenant or Landlord may terminate this Lease by written notice to
the other within fifteen (15) days after Landlord receives notice
of such requirement from the mortgagee.
11. Condemnation . (a) If all
or any substantial part of the Land and Building is taken or
condemned by any competent authority for any public or quasi-public
use or purpose (including a deed given in lieu of condemnation),
this Lease shall terminate as of the first to occur of (i) the date
title vests in such authority, or (ii) the date of the taking of
possession by the condemning authority.
(b) If part of the Land and/or
Building is taken or condemned as aforesaid and this Lease is not
terminated, then the Base Rent shall be equitably reduced based on
the amount of the Premises that Tenant can no longer possess or
that Tenant can no longer use as a result of the condemnation. Upon
receipt and to the extent of the award in condemnation or proceeds
of sale, Landlord shall make necessary repairs and restorations
(exclusive of any partitions, fixtures, additions and other
improvements constructed or installed in or about the Premises for
the benefit of or by Tenant) to restore the Premises remaining to
as near its former condition as circumstances permit, and to the
Building to the extent necessary to constitute a complete
architectural unit.
(c) Landlord will be entitled to
receive the entire price or award from any such sale, taking or
condemnation without any payment to Tenant and Tenant hereby
assigns to
Landlord, Tenant's interest, if any,
in such price or award; provided, however, Tenant shall have the
right to separately pursue against the condemning authority an
award in respect of the loss, if any, for its relocation
expense.
(d) If all or any part of the Land
and Building shall be taken by condemnation for temporary use (up
to 60 days) during the Term, this Lease shall remain unaffected by
such condemnation, and Tenant shall continue to pay in full the
Rent payable hereunder. In the event of any such temporary taking,
Tenant shall be entitled to appear, claim, prove and receive the
portion of the award for such taking that represents compensation
for use or occupancy of the Premises during the Term and Landlord
shall be entitled to appear, claim, prove and receive the portion
of the award that represents the use or occupancy of the Premises
after the end of the Term hereof and the use and occupancy of any
other part of the Land and Building
12. Use and Compliance With
Law. (a) Subject to the limitations set forth herein Tenant
shall use the Premises for light manufacturing, BSL-1 and BSL-2
Laboratory activity, distribution, laboratory storage facility,
related office use and ancillary purposes subject to all
Requirements, as herein defined, and for no other use or purpose.
Tenant shall not permit outside storage, other than the orderly
outside staging of trucks and other vehicles used by Tenant in its
day to day operations provided same does not violate any law,
ordinance, rule, covenant or restriction, without Landlord's prior
written approval. Tenant shall not permit any odors, smoke, dust,
gas, substances, noise or vibrations to emanate from the Premises,
nor take any action which would constitute a nuisance or would
disturb, obstruct or endanger any other tenants of the Building or
interfere with their use of their respective premises. Tenant shall
not commit, permit, or suffer the commission of any waste, nor
overload the walls, ceilings, roof, floors or structure, nor
subject the Premises and/or Land, to any use which would tend to
damage any portion thereof, nor permit any nuisance therein such as
offensive sound, light or odor. Tenant will not permit the
Premises, Building, and/or Land to be used for any purpose or in
any manner that would void the insurance thereon, increase the
insurance risk, or cause the disallowance of any sprinkler credits,
including without limitation, use of the Premises, Building, and/or
Land for the receipt, storage or handling of any product, material
or merchandise that is explosive or highly inflammable. Tenant
shall not allow any sale by auction upon the Premises, Building,
and/or Land or place any harmful liquids in the drainage system of
the Building or Land. No waste, materials or refuse shall be dumped
upon or permitted to remain outside the Premises except in trash
containers placed inside exterior enclosures designated for that
purpose by Landlord. Landlord shall not be responsible to Tenant
for the non-compliance by any other tenant or occupant of the
Building with any of the above-referenced rules or any other terms
or provisions of such tenant's or occupant's lease or other
contract. Notwithstanding anything to the contrary contained in
this Section, Tenant shall be permitted to park its trucks in
loading areas located adjacent to the Premises overnight and to use
areas adjacent to the Premises for retrieving, inspection,
removing, and making available storage units to its customers, so
long as the area is not used for non-vehicular overnight
storage.
Notwithstanding anything to the
contrary herein, Tenant may not use the Premises for any purpose
that increases and/or exceeds the environmental risk or insurance
risk of the activities permitted by the current BSL-1 and BSL-2
Standards defined in Section 13(a) below and attached hereto as
Exhibit H and made a part hereof (“Current
Standards”).
Notwithstanding anything to the
contrary herein, in the event of any change to the applicable laws
which expands the scope of a BSL-1 or BSL-2 Laboratory, Tenant
shall be bound by the Current BSL-1 and BSL-2 Standards.
Additionally, in the event that the Current Standards become more
restrictive (e.g. the scope of the activities permitted are reduced
and/or the procedure required to maintain safety or quality
increase), then Tenant shall restrict its activities to comply with
the more restrictive standards.
(b) Tenant, at its cost and expense,
shall comply with all laws, statutes, codes, orders, findings,
ordinances, rules and regulations or other requirements of any
governmental authority or quasi-governmental authority and
requirements of any insurer, now or hereafter in force, pertaining
to Tenant's use of the Premises, and with all restrictive covenants
and other requirements affecting the Premises and recorded in the
public records (collectively, the “Requirements”).
Tenant, at its cost and expense, shall secure and comply with all
necessary permits and certificates of occupancy for the use and
occupancy of the Premises.
13. Environmental compliance.
(a) The following terms shall have the following meanings
herein:
"Environmental Laws" shall mean all
laws, statutes, ordinances orders, executive orders, administrative
rulings, court decisions, rules and regulations of the United
States, the state and municipality in which the Premises are
located, and any other Governmental Authority relating to the
environmental condition of the Property or any part thereof,
including without limitation the Resource Conservation Recovery
Act, 42 U.S.C. Section 6901 et seq. , the
Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Sections 9601 et seq ., and any common
law theory as nuisance or strict liability, as any of the foregoing
may be amended from time to time.
"Governmental Authority" shall mean
any agency, board, bureau, commission, department or body of any
municipal, county, state or federal government unit, or any
subdivision thereof.
"Hazardous Substance" shall mean any
matter now or in the future regulated by any Environmental Law
giving rise to liability or other obligation under any
Environmental Law, and shall also include without limitation
petroleum, petroleum products and oil or used oil, asbestos, PCBs
and similar compounds, lead paint, lead, cyanide, solvents, *DDT,
ammonia compounds and other chemical products.
"Release" shall have the meaning set
forth in 42 U.S.C. Section 9601, as such may be amended or replaced
from time to time.
"Solid Waste" shall have the meaning
set forth in 40 C.F.R. Section 261.2, as such may be amended or
replaced from time to time.
“BSL-1 and BSL-2
Laboratories” are defined by CDC-NIH Biosafety in
Microbiological and Biomedical Laboratories, Fourth Edition, May,
1999, Section III, Laboratory Biosafety Level Criteria which
definitions are attached hereto as Exhibit H and made a part
hereof.
“Current BSL-1 and BSL-2
Standards” means the standards for a BSL-1 or BSL-2
Laboratory which standards are set forth in Exhibit H which is
attached hereto and made a part hereof.
(b) Tenant shall not cause or permit
any Hazardous Substance or other dangerous toxic substances any
Solid Waste to be generated, manufactured, refined, transported,
treated, stored, disposed of, handled, processed, produced or
Released on the Premises and/or Land except in compliance with all
applicable Environmental Laws. Tenant shall provide Landlord in
writing with all annual reports to federal, state or county
government agencies with respect to any Hazardous Substance
permitted in a BSL-1 or BSL-2 Laboratory introduced to the Premises
by Tenant or any party acting on its behalf, Tenant’s
employees, agents, invitees, licensee, or contractors. Tenant shall
immediately notify Landlord of any violation of any Environmental
Law and provide Landlord immediately with a copy of any notice of
violation. Neither the written consent of Landlord to the use,
generation, storage or disposal of Hazardous Substances nor the
strict compliance by Tenant with all Requirements relating to
Hazardous Substances shall excuse Tenant from Tenant’s
obligation of indemnification in this Section 13.
(c) Tenant shall promptly provide
Landlord with copies of all communications, permits or agreements
with any Governmental Authority or any private entity relating in
any way to the generation, manufacture, refining, transportation,
treatment, storage, disposal, handling, processing, production or
Release of any Hazardous Substance or Solid Waste at the Premises
and/or Land.
(d) Landlord and Landlord's agents
and employees shall have the right, at Landlord’s sole cost
and expense, but not the obligation, to enter the Premises and
conduct appropriate tests for the purpose of ascertaining the
Tenant complies with all Environmental Laws. Notwithstanding
anything to the contrary herein, in the event that such testing
indicates the presence of any Hazardous Substances (other than
those Hazardous Substances allowed in a BSL-1 or BSL-2) or a
violation of any applicable Environmental Law regarding any
Hazardous Substance then Tenant shall reimburse Landlord for the
costs of any such testing within ten days after Landlord’s
demand for payment. Upon written request by Landlord, Tenant shall
provide Landlord with copies of the results of appropriate tests of
air, water or soil to demonstrate that Tenant complies with all
applicable Environmental Laws.
(e) If the presence on or about the
Premises and/or Land or any part thereof, or the generation,
manufacture, refining, transportation, treatment, storage,
disposal, handling, processing, production or Release at the
Premises and/or Land of any Hazardous Substance or other dangerous
toxic substances or Solid Waste: (i) gives rise to liability
(including, but not limited to, a response action, remedial action,
or removal action) under any Environmental Law, (ii) causes
a
