EXHIBIT 10.7
LEASE AGREEMENT
THIS LEASE is made as of this 30th day of June, 1992, by and between (i)
Cambridge Biotech Corporation, a Delaware corporation qualified to do business
in the State of Maryland (the "Landlord"), with a business and mailing address
of 1500 East Gude Drive, Rockville, MD 20850, and (ii) BTRL Contracts and
Services Inc., a Massachusetts corporation qualified to do business in the State
of Maryland (the "Tenant"), with a business and mailing address of c/o Boston
Biomedica, Inc., 375 West Street, West Bridgewater, Massachusetts 02379.
WITNESSETH:
For and in consideration of the covenants herein contained and upon the
terms and conditions herein set forth, the parties agree as follows:
1. Introductory Provisions.
(a) Fundamental Lease Provisions. Certain Fundamental Lease
provisions are presented in this Section in summary form solely to facilitate
convenient reference by the parties hereto:
(1) Leased Premises 3 Taft Court [See Section 2(a)
Rockville, MD 20850 and Exhibit A]
(2) Floor Space of Leased 20,680 square feet [See Section 2(a)]
Premises (more or less)
(3) Gross Leasable Area of 22,680 square feet [See Section 2(b))
Property
(4) A. Proportionate Share 91% [See Section 2(c)]
B. R.E. Proportionate 67%
Share
C. Insurance Propor- 67%
tionate Share
(5) Rent Commencement Date July 1, 1992 [See Section 3(a)]
(6) Expiration Data June 30, 1997 [See Section 3(a)]
(7) Minimum Annual Rent Lease Year Minimum Annual Rent [See Section 4(a)]
1 $19,200.00
2 $144,760.00
3 $206,800.00
4 $248,160.00
5 $289,520.00
(8) Basic Monthly Rent Lease Year Basic Monthly Rent [See Section 4(a)]
1 $1,600.00
2 $12,063.33
3 $17,233.33
4 $20,680.00
5 $24,126.66
(9) Tenant's Use Clause General office,
research/development, [See Section 6]
and manufacturing
(as allowed by
zoning code) in
biotechnology and
biomedical fields
(10) Security Deposit $12,063.00 [See Section 5]
(11) Leasing Broker None [See Section 35]
(b) References and Conflicts. References appearing in Section
1(a) are intended to designate some of the other places in the Lease where
additional provisions applicable to the particular fundamental Lease provisions
appear. These references are for convenience only and shall not be deemed all
inclusive. Each reference in this Lease to any of the fundamental Lease
provisions contained in Section 1(a) shall be construed to incorporate all of
the terms provided for under such provisions, and such provisions shall be read
in conjunction with all other provisions of this Lease applicable thereto. If
there is any conflict between any of the fundamental Lease provisions set forth
in Section 1(a) and any other provisions of the Lease, the latter shall control.
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(c) Exhibits. The following drawings and special provisions are
attached hereto as exhibits and hereby made a part of this Lease:
Exhibit A. Site Plan of Property including the Leased Premises and Adjacent
Laboratory Building
Exhibit B. List of Landlord Repairs After Rent Commencement Date
Exhibit C. Rules and Regulations
2. Premises.
(a) Leased Premises. Landlord hereby leases to Tenant, and Tenant
hereby rents from Landlord, that certain building (the "Leased Premises") which
is located at 3 Taft Court, Rockville, MD 20850 and is outlined in blue on
Exhibit A, together with the non-exclusive right to use the common areas of the
Property as more fully described in Section 7 hereof. The Leased Premises shall
consist of the agreed square footage of floor space as specified in Section
l(a)(2).
(b) The Property. The Leased Premises is a part of a parcel of
improved real property owned by Landlord which is more fully described as "Lot
5, Block A, in the Redgate Industrial Park Subdivision as shown on a plat
thereof recorded in Plat Book 102, Plat 11503 among the Land Records of
Montgomery County, Maryland" (the "Property"). Landlord represents and warrants
to Tenant that it is the owner in fee simple of the Property, subject to certain
encumbrances, rights of way, easements, and other matters of record. Located on
the Property is the Leased Premises, a laboratory building known as 3 1/2 Taft
Court, Rockville, Maryland 20850 (the "Adjacent Laboratory Building"), and
certain common areas as hereinafter defined in Section 7. Landlord and Tenant
acknowledge that the gross leasable area of both the Leased Premises and the
Adjacent Laboratory Building is specified in Section l(a)(3) ("Gross Leasable
Area" or "GLA"), and shall hereafter be referred to as the GLA of the Property.
The GLA of the Property shall be used hereinafter for purposes of computing
Tenant's "Proportionate Share" (as hereinafter defined) of certain expenses
payable to Landlord as "Additional Rent" (as hereinafter defined). Landlord
reserves the right to modify the GLA of the Property, and shall modify the GLA
of the Property, from time to time during the Lease Term as a result of
construction of new leasable improvements or the demolition of existing leasable
improvements on the Property. Landlord's right to modify the GLA of the Property
shall not be construed to provide Landlord with any right to modify the GLA of
the Leased Premises, or to deprive Tenant of the reasonable use of any portion
of the parking areas allocated to it.
(c) Tenant's Proportionate Share. Tenant's Proportionate Share of
certain expenses hereinafter made payable to Landlord as Additional Rent is
specified in Section l(a)(4). Said computation is based upon the ratio of the
total area of floor space in the Leased Premises to the GLA of the Property. The
Proportionate Share shall be modified during the Lease Term in the event that
the GLA of the Property is modified as described in Section 2(b) above.
3. Term and Acceptance by Tenant.
(a) Lease Term. The term of this Lease (sometimes herein called
the "Lease Term") shall begin as of the date specified in Section 1(a) (5)
("Rent Commencement Date") and, unless sooner terminated as herein provided,
continue thereafter through the date specified in Section l(a)(6) ("Expiration
Date"). The period commencing with the Rent Commencement Date and ending on the
last day of the twelfth (12th) full calendar month thereafter shall constitute
the first "Lease Year" as such
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term is used herein. Each successive full twelve (12) month period during the
Lease Term shall constitute a "Lease Year".
(b) Acceptance of Leased Premises. Tenant accepts possession of
the Leased Premises in "as is" condition, except that Landlord shall be
obligated to complete, or cause to be completed, repairs to the Leased Premises
which are identified in Exhibit B, in a good and workmanlike manner using first
quality materials, on or before the ninetieth (90th) day following the date of
execution of this Lease by both parties hereto. Landlord shall use all
reasonable efforts to cause said repair work to be completed by such independent
contractors in a diligent manner. Tenant expressly acknowledges and agrees that
Landlord has made no representations or warranties with respect to the Leased
Premises, and that no promises to alter, repair or improve the Leased Premises
or the Property have been made by Landlord or its agents or employees, unless
specifically set forth herein.
(c) Permits. Tenant shall be responsible for obtaining the
occupancy permit (if and to the extent required by law) and all other permits or
licenses necessary for its lawful occupancy of the Leased Premises. This
requirement shall not relieve Tenant of its liability for the payment of Minimum
Annual Rent and Additional Rent, and the performance of all other obligations
contained herein, from and after the Rent Commencement Date, in the event that
all of said approvals, permits and licenses have not been acquired prior
thereto.
4. Rent.
(a) Minimum Annual Rent. The Minimum Annual Rent reserved
hereunder in Section 1(a)(7) shall be payable by Tenant to Landlord during each
Lease Year of the Lease Term in equal monthly installments of Basic Monthly Rent
in the amounts set forth in Section 1(a)(8), due in advance, without notice or
demand, and without set-off, deduction, recoupment or abatement of any kind, on
the Rent Commencement Date and the first (1st) day of each and every calendar
month thereafter during the Lease Term. In the event that the Rent Commencement
Date occurs on a day other than the first day of a calendar month or the Lease
Term ends on a day other than the last day of a calendar month, then the Basic
Monthly Rent or Additional Rent for such partial month(s) shall be computed on a
per diem basis by dividing the Basic Monthly Rent or Additional Rent by thirty
(30) and multiplying it by the number of days in the partial calendar month.
Rent shall be paid to Landlord, or to such other person(s), or at such other
address as Landlord may designate to Tenant from time to time.
(b) Additional Rent.
(i) General. Whenever it is provided by the terms of this
Lease that Tenant is required to make any payment to Landlord other than a
payment of Minimum Annual Rent, such payment shall be deemed to be a payment of
additional rent ("Additional Rent"). Unless otherwise expressly specified
herein, Additional Rent shall be paid by Tenant with the next installment of
Basic Monthly Rent thereafter falling due. Additional Rent shall include, but
not be limited to:
(ii) Real Estate Taxes. On or before September 1, 1992,
Tenant shall pay to Landlord its R.E. Proportionate Share of the Real Estate
Taxes to be incurred by Landlord on the Property during the 1992-1993 tax year,
based upon a copy of the 1992-1993 tax bill for the Property delivered to Tenant
by Landlord prior thereto (or if a copy of said tax bill is not delivered to
Tenant until after September 1, 1992, then within five (5) business days of the
receipt thereof). Commencing upon the 1st day of October, 1992, and thereafter
on the first day of each calendar month throughout the Lease Term, Tenant shall
pay to Landlord, without
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notice or demand therefor (other than the annual notice of Landlord's estimate
of Tenant's R.E. Proportionate Share of the Real Estate Taxes and a copy of the
tax bill as described in the following paragraph of this Section), and without
any deduction whatsoever, one-twelfth (1/12) of its R.E. Proportionate Share of
Landlord's good faith estimate of the Real Estate Taxes to be incurred by
Landlord on the Property during the following tax year (prorated, if necessary,
if the remainder of the Lease Term constitutes less than the full tax year).
Tenant's obligation to pay its R.E. Proportionate Share of the Real Estate Taxes
incurred during the Lease Term shall survive the expiration or other termination
of the Lease.
The term "Real Estate Taxes" shall mean all taxes and assessments,
general and special, ordinary and extraordinary, foreseen and unforeseen, now or
hereafter assessed, levied or imposed upon the Property, including both the land
and the improvements which are built thereon, including, without limitation,
front foot benefit charges and adequate public facility costs and assessments,
together with (i) any tax, assessment, or other imposition in the nature of a
real estate tax, (ii) any ad valorem tax on rent or any tax on income if imposed
in lieu of or in addition to real estate taxes and assessments, and (iii) any
taxes and assessments which may hereafter be substituted for real estate taxes,
including by way of illustration only, any tax, assessment or other imposition
(whether a business rental or other tax) now or hereafter levied upon Landlord
for a tenant's use or occupancy of or conduct of business on the Property, or a
tenant's improvements to or furniture, fixtures or equipment on the Property.
Real Estate Taxes shall also include all reasonable costs incurred by Landlord
in contesting the validity or amount of any such taxes. Real Estate Taxes shall
not include transfer, inheritance, capital stock or income taxes or other
similar personal tax of Landlord, nor any late charges, penalties or interest,
incurred due to untimely payments by Landlord in connection with said tax.
Within fifteen (15) days after Landlord's receipt from the taxing
authority of the Real Estate Tax bill for the 1993-1994 tax year and for each
tax year thereafter during the Lease Term, Landlord shall deliver to Tenant a
copy of such tax bill, together with a statement showing Tenant's R.E.
Proportionate Share of the actual Real Estate Taxes due for said tax year and
the amount of payments made by Tenant based upon the estimate thereof. Tenant
shall pay Landlord, within thirty (30) days of Tenant's receipt of such
statement, Tenant's R.E. Proportionate Share of the excess, if any, of the Real
Estate Taxes for such tax year over the estimated costs thereof. If the amount
paid by Tenant as Tenant's R.E. Proportionate Share of the estimated Real Estate
Taxes for such tax year exceeded Tenant's R.E. Proportionate Share of actual
Real Estate Taxes for such tax year, the excess shall be credited toward payment
of the next installment of Basic Monthly Rent to be paid by Tenant after Tenant
receives said statement from Landlord. If the amount paid by Tenant for the last
tax year of the Lease Term exceeds Tenant's R.E. Proportionate Share of actual
Real Estate Taxes for such tax year, Landlord shall pay Tenant the excess amount
within thirty (30) days after Landlord's submission to Tenant of the aforesaid
statement for such tax year.
In the event that the Adjacent Laboratory Building is demolished
during the Lease Term, then, commencing upon the effective date of the
reassessment of the Property and the modification of Real Estate Taxes resulting
from such demolition, and for so long as the Leased Premises constitutes one
hundred percent (100%) of the leasable improvements located on the Property,
Tenant shall be obligated to pay Tenant's R.E. Proportionate Share of the Real
Estate Taxes assessed against the Property land and one hundred percent (100%)
of the Real Estate Taxes assessed against the Property improvements.
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Upon Tenant's written request, Landlord will contest, at Tenant's
expense, the validity or amount of any such Real Estate Tax. Tenant shall be
entitled to its R.E. Proportionate Share of any refund.
Landlord shall deposit and thereafter hold in escrow, until
disbursement, the funds received from Tenant pursuant to this section in an
interest bearing, federally insured account. All interest earned on said account
shall be credited to Tenant and shall be used in the adjustments to Tenant's
payments made hereunder from time to time during the Lease Term so that Landlord
collects only such monies as are necessary to pay Tenant's R.E. Proportionate
Share of said Real Estate Taxes.
In addition to Tenant's obligation for the payment of its R.E.
Proportionate Share of the Real Estate Taxes, Tenant shall be liable for, and
shall pay before delinquency, all taxes levied against any personal property or
trade fixtures placed by Tenant in or about the Leased Premises.
(iii) Insurance. Commencing upon the Rent Commencement Date and
thereafter throughout the Lease Term, Tenant shall pay to Landlord without
notice or demand therefor and without any deduction whatsoever, its Insurance
Proportionate Share of the premium cost of the casualty insurance, liability
insurance, rent loss insurance, and other reasonable and necessary form of
insurance carried by Landlord with respect to the Property ("Insurance Cost")
during any policy year; provided, however, that if the Adjacent Laboratory
Building is demolished during the Lease Term, then commencing upon such
demolition and for so long as the Leased Premises constitutes one hundred
percent (100%) of the leasable improvements on the Property, Tenant shall be
obligated to pay one hundred percent (100%) of the Insurance Cost.
Not less than ten (10) days before the Rent Commencement Date, Landlord
shall deliver to Tenant a written statement of Landlord's estimate of the amount
of the Insurance Cost for the then-current policy year, and Tenant's Insurance
Proportionate Share of such Insurance Cost. On the Rent Commencement Date, and
on the first day of each month thereafter throughout the Lease Term, Tenant
shall pay one-twelfth (1/12) of Tenant's Insurance Proportionate Share of
Landlord's estimate of the Insurance Cost for the then-current policy year, as
shown on Landlord's estimate. Landlord shall submit its estimate of the
Insurance Cost for the forthcoming policy year and Tenant's Insurance
Proportionate Share thereof at the commencement of each such policy year, and
Tenant's monthly payments made after its receipt of such estimate shall be in
the amount of one-twelfth (1/12) of the amount of Tenant's Insurance
Proportionate Share of Insurance Cost as shown on such estimate. Landlord may
revise its estimate of the Insurance Cost at any time during a policy year by
notice to Tenant, setting forth such revised estimate and Tenant's Insurance
Proportionate Share thereof. In such event, all monthly payments made by Tenant
after such notice shall be in an amount calculated on the basis of such revised
estimate. Tenant shall, in all cases, continue to make monthly payments of
Insurance Cost based on the last estimate received from Landlord until it
receives a revised or updated estimate.
After the end of each policy year, Landlord will as soon as practicable
submit to Tenant a statement of the actual Insurance Cost for such policy year
and Tenant's Insurance Proportionate Share thereof. Landlord shall cause its
insurance carrier, whenever practical, to issue policies of insurance covering
the Leased Premises which are separate and apart from the Adjacent Laboratory
Building and all other properties owned by Landlord, in which event Tenant's
Proportionate Share of Insurance Cost shall be the full cost payable pursuant to
said
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separate policy. Where such separate policies cannot be issued practically,
Landlord shall cause its insurance carrier to provide a written statement
identifying the manner in which all premiums paid by Landlord are allocated to
reflect the portion thereof attributable to the insurance carried on the Leased
Premises and the portion thereof attributable to the insurance carried on the
Adjacent Laboratory Building and other properties owned by Landlord. Tenant
shall pay Landlord, within thirty (30) days of Tenant's receipt of such
statement, Tenant's Insurance Proportionate Share of the excess, if any, of
Insurance Cost for such policy year over the projected Insurance Cost. If the
amount paid by Tenant as Tenant's Insurance Proportionate Share of the estimated
Insurance Cost for such policy year exceeded Tenant's Insurance Proportionate
Share of actual Insurance Cost for such policy year, the excess shall be
credited toward payment of the next installment of Basic Monthly Rent to be paid
by Tenant after Tenant receives said statement from Landlord. If the amount paid
by Tenant for the last policy year of the Lease Term exceeds Tenant's Insurance
Proportionate Share of actual Insurance Cost for such year, Landlord shall pay
Tenant the excess amount within thirty (30) days after Landlord's submission to
Tenant of the aforesaid Insurance Cost statement for such policy year.
Landlord shall deposit and thereafter hold in escrow, until
disbursement, the funds received from Tenant pursuant to this section in an
interest bearing, federally insured account. All interest earned on said account
shall be credited to Tenant and shall be used in the adjustments to Tenant's
payments made hereunder from time to time during the Lease Term so that Landlord
collects only such monies as are necessary to pay Tenant's Insurance
Proportionate Share of said Insurance Cost.
Landlord agrees that, at all times during the Lease Term, it shall carry
casualty insurance and liability insurance in such form and in such amounts
which are consistent with and comparable to the coverage of casualty insurance
policies and liability insurance policies carried by landlord's owning
commercial buildings located in Montgomery County, Maryland that are similar to
the Leased Premises.
(iv) Utility Expenses Not Separately Metered.
(aa) Throughout the Lease Term, Tenant agrees to pay to
Landlord, as Additional Rent, Tenant's Proportionate Share of all water usage
charges, exterior electric lighting charges, and any other utility charges
("Shared Charges") not separately metered (and only for so long as each is not
separately metered) for each of the Leased Premises, the Adjacent Laboratory
Building, and the common areas of the Property.
(bb) Upon receipt of each billing for Shared Charges,
Landlord will as soon as practicable submit to Tenant a statement of Shared
Charges incurred for the preceding billing period. Tenant shall pay Landlord,
within thirty (30) days of Tenant's receipt of such statement, Tenant's
Proportionate Share of Shared Charges.
(v) Landlord's Enforcement Costs. Additional Rent shall
include any and all expenses incurred by Landlord, including reasonable
attorneys' fees, for the collection of monies due from Tenant and the
enforcement of Tenant's obligations under the provisions of this Lease. In the
event Minimum Annual Rent or Additional Rent is not paid within fifteen (15)
business days of its due date, Landlord, at its sole option, may assess a late
charge equal to five percent (5%) of the amount of the delinquent Basic Monthly
Rent and Additional Rent as compensation for the additional administrative costs
incurred by Landlord as a result of such late payment.
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(c) Payment of Rent. Any Minimum Annual Rent or
Additional Rent which is not paid within five (5) business days after the same
is due shall bear interest ("Penalty Rate") at one percentage (1%) point above
the prime rate of interest by NationsBank/Maryland existing from time to time
and adjusted each day the prime rate is redetermined to reflect the change in
said prime rate of interest, from the due date until the date received by
Landlord. Any payments of Minimum Annual Rent or Additional Rent by Tenant or
acceptance by Landlord of a lesser amount than shall be due from Tenant to
Landlord shall be treated as a payment on account. The acceptance by Landlord of
a check for a lesser amount with an endorsement or statement thereon, or upon
any letter accompanying such check, that such lesser amount is payment in full,
shall be given no effect, and Landlord may accept such check without prejudice
to any other rights or remedies which Landlord may have against Tenant. If
Landlord receives from Tenant two (2) returned or "bounced" checks in any one
Lease Year, Landlord may require all future Rent by cashier's or certified
check.
5. Security Deposit.
(a) Contemporaneously with the execution of this Lease,
Tenant has deposited with Landlord the sum specified in Section 1(a)(10) as the
security deposit ("Security Deposit"), the receipt of which is hereby
acknowledged. Said Security Deposit shall serve as security for the faithful
performance by Tenant of all the terms, covenants and conditions of this Lease
to be kept and performed by Tenant during the Lease Term. If, at any time during
the Lease Term, any payment of Minimum Annual Rent or Additional Rent herein
reserved shall be overdue and unpaid, then Landlord may, at its option,
appropriate and apply any portion of said Security Deposit to the payment of any
such overdue rent or other sum.
(b) In the event of the failure of Tenant to keep and
perform any of the terms, covenants and conditions of this Lease to be kept and
performed by Tenant, then Landlord, at its option, may appropriate and apply the
entire Security Deposit, or so much thereof as may be necessary, to compensate
Landlord for loss or damage sustained or suffered by Landlord due to such breach
on the part of Tenant. Should the entire Security Deposit, or any portion
thereof, be appropriated and applied by Landlord for the payment of overdue rent
or other sums due and payable to Landlord by Tenant hereunder, then Tenant
shall, upon the written demand of Landlord, forthwith remit to Landlord a
sufficient amount in cash to restore the Security Deposit to the original sum.
Tenant's failure to do so within five (5) days after receipt of such demand
shall constitute a breach of this Lease. Should Tenant comply with all of said
terms, covenants and conditions of this Lease and promptly pay all Minimum
Annual Rent and Additional Rent herein provided as it falls due, then the
Security Deposit (and all accrued interest) shall be returned in full to Tenant
within forty-five (45) days of the Expiration Date or earlier termination of the
Lease Term.
(c) Landlord shall deliver the funds deposited
hereunder by Tenant as a Security Deposit to the purchaser of Landlord's
interest in the Property and/or the Leased Premises in the event that such
interest is sold, and thereupon Landlord shall be discharged from any further
liability with respect to such Security Deposit.
(d) If the Tenant fails to take possession of the
Leased Premises as required by this Lease, the Security Deposit shall not be
deemed liquidated damages, and Landlord's use of the Security Deposit pursuant
to this Section 5 shall not preclude Landlord from recovering from Tenant all
additional damages incurred by Landlord.
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(e) Landlord shall deposit the funds delivered by
Tenant as a Security Deposit in an interest bearing, federally insured account,
and shall hold the Security Deposit in such an account(s) during the entire
Lease Term. For so long as Signet Bank/Maryland holds a first lien security
interest in the Property, the Security Deposit shall be held in an account at
Signet Bank/Maryland which identifies Landlord as the escrow agent or custodian
of the proceeds constituting the Security Deposit for the benefit of Tenant. All
interest earned on said account shall be credited to Tenant, and, so long as
Tenant is not in default of its obligations under this Lease, Landlord shall pay
to Tenant all accrued interest (and shall deliver to Tenant an appropriate
statement showing the accrual of such interest on said account) on or before the
31st day of January of each calendar year during the Lease Term. Tenant
acknowledges that its tax identification number is #04-3152484 for purposes of
reporting to the Internal Revenue Service interest earned on said account.
6. Use.
(a) Use. Tenant shall use the Leased Premises for the
purposes specified in Section 1(a)(9), and for no other purpose.
(b) Compliance With Laws, Fire Insurance, Condition of
Leased Premises. Tenant shall not do, or permit anything to be done in the
Leased Premises or on the Property, or bring or keep anything therein, which
will in any way invalidate or conflict with fire insurance policies on the
Property, including, but not limited to all improvements, the Property's
fixtures and personal property kept therein, or obstruct or interfere with the
rights of the Landlord or of other tenants of the Property, or in any other way
injure or annoy Landlord or such other tenants, or subject Landlord to any
liability for injury to persons or damage to property, or interfere with the
good order of the Property, as determined by Landlord in its sole reasonable
discretion. Tenant shall refrain or discontinue said use immediately upon
receipt of written notice from Landlord requiring such action. Tenant, at its
expense, shall comply with all present and future laws, rules or regulations of
any federal, state or municipal authority, or the Maryland Fire Underwriters
Rating Bureau, or with any notice from any public officer pursuant to law
pertaining to Tenant's occupancy or use of the Leased Premises, whether such
notice shall be served on Landlord or Tenant (including, where necessary, the
construction of capital improvements to the Leased Premises). Tenant agrees to
indemnify, defend, and hold Landlord harmless from all liability, damage, cost,
and expense (including, without limitation, court costs and reasonable attorneys
fees) resulting from any injury to persons or damage to property occurring in or
around the Leased Premises, whether occasioned by any act or omission of Tenant,
Tenant's agents, contractors, servants, employees, invitees or licensees. Tenant
agrees that any increases of fire insurance premiums on the Leased Premises or
contents caused by the occupancy of Tenant and any expenses or costs incurred in
consequence of negligence or carelessness or the willful action of Tenant,
Tenant's employees, agents, contractors, servants, invitees, or licensees shall
be deemed Additional Rent and paid by Tenant to Landlord as they accrue.
7. Common Areas.
(a) Common Areas Defined. In this Lease, "common areas"
means all areas, facilities and improvements provided, from time to time, on the
Property for the mutual convenience and use of all tenants or other occupants of
the Leased Premises and the Adjacent Laboratory Building, their respective
agents, employees, and invitees, and shall include, if provided, but are not
limited to, parking areas and facilities, access roads,
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driveways, retaining walls, sidewalks, walkways, landscaped areas, and exterior
lighting facilities.
(b) Landlord's Control. Landlord shall, as between Landlord and
Tenant, at all times during the Lease Term have the sole and exclusive control,
management and direction of the common areas, and may, at any time and from time
to time during the Lease Term, exclude and restrain any person from use or
occupancy thereof, excepting, however, Tenant and other tenants of Landlord and
bona fide invitees of either who make use of said areas in accordance with the
rules and regulations established by Landlord from time to time with respect
thereto. The rights of Tenant in and to the common areas shall at all times be
subject to the rights of others to use the same in common with Tenant, and it
shall be the duty of Tenant to keep all of said areas free and clear of any
obstructions created or permitted by Tenant or resulting from Tenant's
operation. Landlord may at any time and from time to time (i) close all or any
portion of the common areas to make repairs or changes, (ii) close all or any
portion of the common areas to such extent as may, in the opinion of Landlord,
be necessary to prevent a dedication thereof or the accrual of any rights to any
person or to the public therein, and (iii) do and perform such other acts in and
to said areas as, in the exercise of good business judgment, Landlord shall
determine to be advisable with a view to the improvement of the convenience and
use thereof by tenants, their employees, agents, and invitees. Landlord shall at
all times have the right and privilege of determining the nature and extent of
the common areas, and of making such changes, rearrangements, additions or
reductions therein and thereto from time to time which in its opinion are deemed
to be desirable and for the best interest of all persons using the common areas
or which are as a result of any federal, state or local environmental protection
or other law, rule, regulation, guideline or order. The purpose of the site plan
attached hereto as Exhibit A is to show the approximate locational relationship
of the Leased Premises to the Adjacent Laboratory Building and to the common
areas as of the Rent Commencement Date. Nothing described in Exhibit A shall
limit or prevent Landlord from effecting any change or alteration to the
Property as described in this paragraph. Nothing contained in this Section shall
give Landlord the right to impose restrictions on the use and enjoyment of the
common areas by Tenant, or to make modifications to the common areas, in a way
to cause Tenant to be unable to use the Leased Premises and the common areas in
a reasonable manner for the purposes originally contemplated by this Lease.
(c) Parking Spaces. During the Lease Term, Tenant shall
have the exclusive right to the use of all parking spaces in the common areas of
the Property, except for the six (6) parking spaces which are marked in red on
Exhibit A and are reserved by Landlord for its use.
8. Rules and Regulations. Tenant agrees to comply with and observe any
reasonable rules and regulations promulgated by Landlord as set forth in Exhibit
C, which may be supplemented or amended from time to time by Landlord. Tenant's
failure to keep and observe said rules and regulations shall constitute a breach
of the terms of this Lease in the same manner as if the same were contained
herein as covenants.
9. Utilities. Tenant shall be solely responsible for and shall promptly
pay any and all utility charges including but not limited to electricity, fuel,
gas, and telephone (including equipment and installation charges) used in,
consumed at, or supplied to the Leased Premises. Tenant shall immediately
transfer all separately metered utility accounts for the Leased Premises into
its own name on the Rent Commencement Date. Tenant shall pay to Landlord, as
Additional Rent, its Proportionate Share of any and all bills for utility
charges which are not
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separately metered in the manner described in Section 4(b)(iv) hereof.
10. Landlord's Right of Entry. Landlord, and its agents, shall have the
right, upon prior notice to Tenant and during reasonable business hours during
the Lease Term (except in the case of an emergency involving damage to person or
property), to enter upon the Leased Premises to examine the same, or to make
such repairs, alterations or improvements, as Landlord may deem necessary or
proper, or to remove any alteration or improvement which is in violation of the
provisions of this Lease, provided, however, Landlord shall not adversely
interfere with Tenant's business operations in a material manner. Landlord
reserves the right to show the Leased Premises to prospective tenants or brokers
during the last ninety (90) days of the Lease Term, and to show the Leased
Premises to prospective purchasers at all reasonable times, provided that prior
verbal notice is given to Tenant in each case and that Tenant's use and
occupancy of the Leased Premises shall not be materially inconvenienced by any
such action of Landlord.
11. Condition - Maintenance and Repair.
(a) Tenant's Responsibility. Tenant shall maintain the
Leased Premises in substantially the same good order and condition as it is on
the commencement of the Lease Term and shall return the Leased Premises to
Landlord in such condition at the Expiration Date or at the earlier termination
of this Lease, ordinary wear and tear excepted. Except as obligations to repair
are expressly delegated to Landlord as described in Section 11(b) below, Tenant
shall be responsible for the full cost of all maintenance and repair of (i) the
Leased Premises, including but not limited to the doors, door jambs, windows,
window casings and sills, screens, floor coverings, walls (excluding load
bearing structures), and ceilings located in the Leased Premises, and all pipes,
gutters, downspouts, wires, conduits and other equipment and fixtures located in
the Leased Premises, and (ii) the common areas of the Property (including all
landscaping thereon, except for the landscaping immediately surrounding the
Adjacent Laboratory Building). Tenant, at its expense, shall perform routine
maintenance, repair, and replacement of the plumbing, electrical, heating,
ventilating and air-conditioning systems, and all other systems and equipment,
serving the Leased Premises. Tenant will throughout the Lease Term obtain and
keep in force a maintenance contract with a qualified service company to
regularly inspect and perform maintenance services to the heating, ventilating
and air-conditioning system serving the Leased Premises. Tenant, at its expense,
shall furnish Landlord with a copy of said maintenance contract, and of renewals
or replacements thereof, promptly after the effective date thereof. All repairs
and maintenance required to be performed by Tenant at the Leased Premises shall
be made or performed within a reasonable period of time upon the occurrence of
the necessity therefor, and shall be made or performed in a workmanlike manner,
using first class materials, by a contractor duly licensed in the State of
Maryland, and shall be made or performed in accordance with (i) all applicable
federal, state and county governmental codes and regulations, and (ii) insurance
requirements. Tenant shall also be responsible for keeping all sidewalks and
parking areas on the Property free and clear of dirt, trash, debris, ice, snow,
and any other obstructions; provided, however, that Landlord shall upon request
promptly reimburse Tenant for nine percent (9%) of the cost of any such
services. Tenant shall keep its trash and garbage in enclosed containers in a
trash holding area within the Leased Premises, and shall perform regular trash
removal from such trash holding area. Tenant shall also be responsible for the
performance of regular, periodic pest control services at the Leased Premises.
All glass, both exterior and interior, shall be maintained in the Leased
Premises at the sole
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risk of Tenant, and Tenant agrees to replace any glass promptly at its sole
expense in the event of breakage.
(b) Landlord's Responsibility. Except for any
structural alterations or improvements made by Tenant, Landlord shall maintain
in good order and repair the roof and the structural portions of the foundation,
floors, stairwells, exterior walls, columns and other load bearing elements of
the Leased Premises, and shall perform all non-routine repair and replacement of
the heating, ventilating and air-conditioning system at the Leased Premises,
provided, in each case, that Tenant shall give Landlord notice of the necessity
therefor, whereupon Landlord shall have a reasonable period of time within which
to make such repairs, and provided, further, that any such repairs necessitated
by the acts or omissions of Tenant, its agents, employees, contractors or
invitees, shall be performed at Tenant's expense, and the cost thereof shall be
paid by Tenant to Landlord, as Additional Rent, within twenty (20) days after
Landlord's submission of a bill therefor.
12. Alterations or Improvements by Tenant. Except for incidental
painting and decoration of the interior of the Leased Premises and other minor
alterations and improvements which do not affect the structure or utility
systems of the Leased Premises, Tenant shall not make any alterations,
additions, or improvements, structural or otherwise (collectively,
"Alterations") in, on or to the Leased Premises, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. In connection with Landlord's review of such proposed alterations or
improvements prior to giving its consent thereto, Landlord shall have the right
to require that Tenant supply plans, specifications, working drawings and
similar documents in reasonable detail which show the scope of work to be
performed within the Leased Premises. Landlord's approval of the plans,
specifications and working drawings for Tenant's alterations and improvements
shall create no liability on the part of Landlord for their completeness, design
sufficiency, or compliance with all laws, rules, regulations of governmental
agencies or authorities. Landlord acknowledges that Tenant desires to build a P3
laboratory in the Leased Premises during the Lease Term, and that Landlord shall
not unreasonably withhold or delay its consent to the construction thereof. Any
contractors employed by Tenant to perform Tenant's work (i) shall be qualified
to perform such work and licensed in the State of Maryland and (ii) shall
maintain any insurance which may be reasonably required by Landlord, and (iii)
shall be bonded or otherwise reasonably satisfactory to Landlord. Tenant will
defend, indemnify and hold Landlord harmless from and against any and all
expenses, liens, claims or damages, including attorneys' fees, for injury to
person or property which may or might arise, directly or indirectly, by reason
of the making of any Alterations. If any Alterations are effected without the
prior written consent of Landlord, Landlord may remove or correct the same and
Tenant shall be liable for any and all expenses of this work. All rights given
to Landlord herein shall be in addition to any other right or remedy of Landlord
contained in this Lease. Tenant shall be obligated to make any and all
Alterations and other improvements to the Leased Premises required by applicable
federal, state, and local law, in connection with the use of the Leased Premises
by Tenant during the Leased Term. Tenant hereby agrees that all Alterations made
in, to, or on the Leased Premises shall, unless otherwise provided by written
agreement or by the provisions of Section 13 below, be the property of Landlord
and shall remain upon and be surrendered with the Leased Premises on the
Expiration Date or other termination of this Lease.
13. Surrender. Upon the Expiration Date or other termination of the
Lease Term, Tenant shall quit and surrender the Leased Premises to the Landlord
in good order and condition,
-12-
ordinary wear and tear excepted, and Tenant shall remove all of its personal
property from the Leased Premises on or before the Expiration Date or other
termination of this Lease. Tenant's obligation to observe or perform the
covenants described in this Section 13 shall survive the expiration or other
termination of this Lease. If Tenant does not remove Tenant's furniture, trade
fixtures and all other items of personal property of every kind and description
from the Leased Premises as specified herein, then Landlord shall be permitted
to remove, dispose or otherwise discard such property without further payment or
credit by Landlord to Tenant. Notwithstanding anything to the contrary contained
in this Lease, Tenant shall have the right and the obligation , at the end of
the Lease Term, to remove all built-in desks, cabinets, basins, emergency
showers and other pieces of equipment which are affixed to the Leased Premises
by Tenant. In connection with the removal of said equipment, Tenant shall be
obligated to stub pipes; bundle and cap wires; close ducts; repair and replace
(as appropriate) flooring coverings; repair, replace, finish and repaint (as
appropriate) walls, and perform all other acts which are necessary for the
Leased Premises to be returned to Landlord in same good order and condition as
exists of the Rent Commencement Date.
14. Tenant Holding Over. If Tenant holds possession of the Leased
Premises after the Expiration Date or other termination of this Lease, Landlord
shall have the option, exercisable in writing within thirty (30) days after the
date of termination as aforesaid, to treat Tenant as a trespasser, or as a
tenant by the month. If the Landlord fails to make such election then the Tenant
shall be deemed a tenant by the month, commencing with the first day after the
termination of the Lease at one hundred fifty percent (150%) of the Basic
Monthly Rent paid during the last month of the Lease Term, and upon all the
other terms of this Lease, including the provisions of this Section. Said
holdover term shall terminate upon thirty (30) days notice from one party to the
other. Nothing contained herein shall be construed within said thirty (30) days
after the date of Lease termination as aforesaid as a consent by Landlord to the
occupancy or possession of the Leased Premises by Tenant after the termination
of the Lease, and Landlord, upon said termination, if Landlord elects to treat
Tenant as a trespasser, shall be entitled to the benefit of all general or
public laws relating to the speedy recovery of the possession of land and
tenements held over by Tenant, whether now or hereafter in force and effect. If
Tenant fails to surrender the Leased Premises upon the expiration or other
termination of this Lease despite demand to do so by Landlord, Tenant shall
indemnify, defend, and hold Landlord harmless from all injury, loss, claims,
expenses and liability, including without limitation, any claim made by any
succeeding tenant and any attorneys' fees, founded on or resulting from such
failure to surrender.
15. Assignment and Subletting.
(a) Assignment by Tenant. Tenant shall not assign,
mortgage or encumber this Lease, or any right hereunder, nor sublet the Leased
Premises or any part thereof, nor permit the Leased Premises to be used by
others without the prior written consent of Landlord, which consent shall be at
Landlord's sole discretion. If Tenant is a corporation, unincorporated
association or partnership, then the transfer, assignment or hypothecation of
any stock or interest in such corporation, association or partnership so as to
result in a change of fifty percent (50%) or more in the ownership thereof by
the person, persons or entities owning said entity as of the date of this Lease,
without the prior written consent of Landlord (which consent shall not be
unreasonably withheld or delayed), shall be deemed an assignment made in breach
of this covenant. Landlord's consent in any specific instance to any assignment,
mortgage, encumbrance, subletting or use of the Leased Premises and its
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collection and acceptance of rent from any such approved assignee, subtenant or
other occupant shall neither constitute a waiver of the provisions of this
paragraph, nor be construed as permission of any subsequent assignment,
mortgage, encumbrance, subletting or use without compliance with this paragraph.
Without the prior written consent of Landlord, this Lease and the interest of
Tenant, or any assignee of Tenant, shall not pass by operation of law, nor shall
it be subject to garnishment or sale under execution in any suit or proceeding
which may be brought against or by Tenant, or any assignee of Tenant. No
assignment of this Lease, sublease of all or any portion of the Leased Premises,
or collection of rent from an assignee or subtenant (whether or not permitted by
Landlord) shall relieve Tenant of its obligations hereunder. In the event that
Landlord gives Tenant its written consent to assign, transfer, or sublet all or
a portion of the Leased Premises to a third party which is unrelated to Tenant,
any monthly rent or other payment accruing to Tenant as the result of any such
assignment, transfer or sublease, including any lump sum or periodic payment in
any manner relating to such assignment, transfer or sublease, which is in excess
of the Minimum Annual Rent and Additional Rent then payable by Tenant under the
Lease shall be paid by Tenant to Landlord monthly as Additional Rent, excluding
any reasonable expenses incurred by Tenant in connection with such assignment or
subletting, e.g. legal fees and brokers' commissions. Landlord may require a
certificate from Tenant specifying the full amount of any such payment of
whatsoever nature. Any reasonable costs and expenses, including reasonable
attorneys' fees incurred by Landlord in connection with any proposed or
purported assignment, transfer or sublease shall be borne by Tenant and shall be
payable to Landlord as Additional Rent within five (5) days of demand therefor.
Notwithstanding anything herein to the contrary, Tenant shall have
the right, without Landlord's prior written consent, to assign this Lease or
sublet the Leased Premises to any parent corporation of Tenant, or to any
subsidiary of any parent corporation of Tenant, subject to the following express
conditions:
(i) No such assignment or sublease shall be deemed to release
Tenant from continuing liability for all of Tenant's
covenants and obligations under this Lease, or Boston
Biomedica, Inc. ("Tenant's Guarantor") from its obligations
under its Guaranty; and
(ii)Any assignee or subtenant must expressly assume in writing
all of the covenants and obligations of Tenant under this
Lease, joint and severally with Tenant.
Further, Landlord agrees not to unreasonably withhold its consent
to an assignment of this Lease (or to a sale or transfer of Tenant's stock)
resulting from a merger, consolidation, corporate reorganization (other than
pursuant to the bankruptcy laws), sale of the assets or other transfer of stock
of Tenant, subject to the following conditions:
(i) Such assignee or transferee, as the case may be, shall have a
net worth at least equal to that of Tenant, as of the date
hereof, or the date of such request for consent to an
assignment or transfer, whichever is greater;
(ii) No such assignment shall be deemed to release Tenant's
Guarantor from its obligations under its Guaranty; and
(iii)Such assignee or transferee, as the case may be, must
expressly assume in writing all of the
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covenants and obligations of Tenant under this Lease, jointly
and severally with Tenant.
Further, any issuance by Tenant of its capital stock in a public
offering which is effected in compliance with the registration requirements of
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, shall not be deemed to be a change in control or an assignment of
this Lease requiring Landlord's consent.
(b) Assignment by Landlord. It is expressly understood and
agreed that this Lease and all rights of Landlord hereunder shall be fully and
freely assignable by Landlord without notice to, or consent of, Tenant. In the
event of the transfer and assignment by Landlord of its interest in this Lease,
Landlord shall thereby be released from any responsibility for the performance
of obligations thereafter accruing hereunder, and Tenant agrees to look solely
to such successor in interest of the Landlord for performance of such
obligations. Nothing contained herein shall prevent Tenant from looking to
Landlord for the performance of obligations of which Landlord has actual
knowledge and which predate the effective date of the transfer and assignment by
Landlord of its interest in this Lease. The term "Landlord" as used in this
Lease shall mean the owner of the Leased Premises, at the time in question. In
the event of a transfer (whether voluntary or involuntary) by such owner of its
interest in the Leased Premises, such owner shall thereupon be released and
discharged from all covenants and obligations of the Lease thereafter accruing,
but such covenants and obligations shall be binding during the Lease Term upon
each new owner for the duration of such owner's ownership.
16. Bankruptcy.
(a) The following shall be Events of Bankruptcy under this
Lease: (1) Tenant or any guarantor of Tenant's obligations under this Lease
("Tenant's Guarantor") becoming insolvent, as that term is defined in Title 11
of the United States Code (the "Bankruptcy Code"), or under the insolvency laws
of any state, district, commonwealth or territory of the United States (the
"Insolvency Laws"); (2) the appointment of a receiver or custodian for any or
all of Tenant's or Tenant's Guarantor's property or assets, or the institution
of a foreclosure action upon any of Tenant's or Tenant's Guarantor's real or
personal property; (3) the filing of a voluntary petition under the provisions
of the Bankruptcy Code or Insolvency Laws by Tenant or Tenant's Guarantor; (4)
the filing of an involuntary petition against Tenant or Tenant's Guarantor as
the subject debtor under the Bankruptcy Code or Insolvency Laws, which either
(A) is not dismissed within one hundred twenty (120) days of the date of filing,
or (B) results in the issuance of an order for relief against the debtor; or (5)
Tenant's or Tenant's Guarantor's making or consenting to an assignment for the
benefit of creditors or a common law composition of creditors.
(b) Upon occurrence of an Event of Bankruptcy, Landlord shall
have all rights and remedies available to Landlord pursuant to Section 18;
provided, however, that while a case in which Tenant is the subject debtor under
the Bankruptcy Code is pending, Landlord shall not exercise its rights and
remedies pursuant to Section 20 so long as (1) the Bankruptcy Code prohibits the
exercise of such rights and remedies, and (2) Tenant or its Trustee in
Bankruptcy (hereinafter referred to as "Trustee") (i) cures all defaults under
this Lease, (ii) compensates Landlord for monetary damages incurred as a result
of such defaults, (iii) provides adequate assurance of future performance on the
part of Tenant as debtor in possession or on the part of the assignee tenant,
and (iv) complies with all other requirements of the Bankruptcy Code and this
Lease.
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17. Default. Each of the following shall be deemed a default by Tenant
and a material breach of this Lease:
(a) An Event of Bankruptcy as defined in Section 16;
(b) An assignment or encumbrance of Tenant's interest
in this Lease or the Leased Premises or a
subletting of any part of the Leased Premises in
violation of Section 15;
(c) A failure by Tenant to make any payment of
Minimum Annual Rent or Additional Rent within
five (5) days of receipt of written notice that
such payment was not received on its due date
(provided that Landlord shall not be obligated to
provide Tenant with such written notice more than
twice during any twelve month period during the
Lease Term, and after receipt of such second
notice, Tenant shall be deemed in default,
without further notice, if any such payment is
not received by Landlord on its due date);
(d) Abandonment of the Leased Premises; and
(e) A failure by Tenant in the performance of any
other term, covenant, agreement or condition of
this Lease on the part of Tenant to be performed
after fifteen (15) days notice, or if such
default cannot reasonably be cured within said
fifteen (15) day period and Tenant does not
commence to diligently pursue the same within
said fifteen (15) day period and to continue to
diligently pursue the same until remedied.
Landlord agrees that it shall not exercise any rights or remedies, which are
available to it pursuant to the terms of Section 18, as a result of an event of
default described in Section 17 (b) or (d) above, unless and until Landlord has
provided Tenant with a period of fifteen (15) days after receipt of written
notice thereof within which to cure such default.
18. Landlord's Rights Upon Tenant's Default. Upon default by Tenant of
any of the terms or covenants of this Lease, Landlord shall be entitled to
remedy such default as follows:
(a) Landlord shall have the right, immediately or at any time
after said default, without further notice to Tenant
(unless otherwise provided herein), to enter the Leased
Premises, without terminating this Lease or being guilty of
trespass, and do any and all acts as Landlord may deem
necessary, proper or convenient to cure such default, for
the account and at the expense of Tenant, and Tenant agrees
to pay to Landlord as Additional Rent all damage and/or
expense incurred by Landlord in so doing, including
interest at the Penalty Rate from the due date until the
date payment is received by Landlord. The making of such
payment or the taking of such action by Landlord shall not
be deemed to cure the default or to stop Landlord from the
pursuit of any remedy to which Landlord would otherwise be
entitled.
(b) Landlord shall, following said default, have the right to
terminate this Lease and/or Tenant's right to possession of
the Leased Premises and, with or without legal process,
take possession of the Leased Premises and remove Tenant,
any occupant and any property therefrom, without being
guilty of trespass and without relinquishing any rights of
Landlord against Tenant. Landlord shall be entitled to
recover
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damages from Tenant in an amount equal to the amount herein covenanted to be
paid as Minimum Annual Rent during the remainder of the Lease Term, said Minimum
Annual Rent for the full term then remaining having been fully accelerated at
the option of Landlord, together with (i) all reasonable expenses of any
proceedings (including, but not limited to, legal expenses and attorney's fees)
which may be necessary in order for Landlord to recover possession of the Leased
Premises, (ii) the reasonable expenses of the re-renting of the Leased Premises
(including, but not limited to, any commissions paid to any real estate agent,
advertising expense and the costs of such alterations, repairs, replacements and
decoration or re-decoration as Landlord, in its sole judgment reasonably
exercised, considers advisable and necessary for the purpose of re-renting the
Leased Premises), and (iii) interest computed at the Penalty Rate from the due
date until paid; provided, however, that said damages shall be discounted to
present value using a discount factor of 5%, and further that there shall be
credited against the amount of such damages all amounts received by Landlord
from such re-renting of the Leased Premises and such amounts shall be refunded
to Tenant. No act or thing done by Landlord shall be deemed to be an acceptance
of a surrender of the Leased Premises, unless Landlord shall execute a written
agreement of surrender with Tenant. Tenant's liability hereunder shall not be
terminated by the execution of a new lease of the Leased Premises by Landlord.
In the event Landlord does not exercise its option to accelerate the payment of
Minimum Annual Rent as provided hereinabove, then Tenant agrees to pay to
Landlord, upon demand, the amount of damages herein provided after the amount of
such damages for any month shall have been ascertained; provided, however, that
any expenses incurred by Landlord shall be deemed to be a part of the damages
for the month in which they were incurred. Separate actions may be maintained
each month or at other times by Landlord against Tenant to recover the damages
then due, without waiting until the end of the term of this Lease to determine
the aggregate amount of such damages.
(c) Upon any default by Tenant to pay Minimum Annual Rent or
Additional Rent, Landlord shall have a lien upon the property of Tenant in the
Leased Premises for the amount of any unpaid Minimum Annual Rent or Additional
Rent. In such event, Tenant shall not remove any of Tenant's property from the
Leased Premises except with the prior written consent of Landlord, which consent
shall be granted at Landlord's sole and absolute discretion.
(d) All rights and remedies provided to either Landlord or Tenant
herein as a result of a default by the other party shall be cumulative, and none
shall exclude any other right or remedy allowed by law. For the purposes of any
suit brought or based hereon, this Lease shall be construed to be a divisible
contract, to the end that successive actions may be maintained on this Lease as
successive periodic sums mature hereunder.
19. Lender Requirements.
(a) Subordination. Tenant agrees that this Lease is subject and
subordinate to the lien of any existing mortgage or deed of trust which is a
lien upon the Property or any part thereof on the Rent Commencement Date, and to
all renewals, modifications, consolidations, replacements and extensions
thereof, and to all advances made or hereafter to be made upon the security
thereof. Landlord agrees that it shall use reasonable efforts to acquire from
any such existing mortgagee or holder of an existing deed of trust a
non-disturbance agreement in such lender's usual form for the benefit of Tenant.
Tenant agrees that this Lease is and shall be subject and subordinate to the
lien of any future mortgages or deeds of trust which at any time during the
Lease Term may be made a lien upon the Property or any part thereof, and to all
advances made or hereafter to be
-17-
made upon the security thereof; provided that such subordination shall be
effective only upon the delivery to Tenant of a non-disturbance agreement in
such lender's usual form for the benefit of Tenant by such future mortgagee or
holder of a deed of trust. These subordination provisions shall be
self-operative and no further instrument of subordination shall be required.
Tenant agrees to execute and deliver, upon request, such further instrument or
instruments confirming this subordination as shall be desired by Landlord or by
any mortgagee or proposed mortgagee; and Tenant hereby constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute any such instrument or
instruments. Tenant further agrees that, at the option of the holder of any
mortgage or of the trustee under any deed of trust, this Lease may be made
superior to said mortgage or deed of trust by the insertion therein of a
declaration that this Lease is superior thereto, and to all renewals,
modifications, consolidations, replacements and extensions thereof.
(b) Attornment. In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under, any deed
to secure a debt given by Landlord and covering the Leased Premises, Tenant
shall execute such attornment agreement as shall be reasonably required by said
purchaser, pursuant to the terms of which Tenant recognizes such purchaser as
the owner and landlord under this Lease, and the purchaser recognizes Tenant as
the tenant under this Lease.
(c) Notice to Mortgagee Upon Landlord Default. Tenant agrees to
give any mortgagee by certified mail, return receipt requested, a copy of any
notice of default served upon Landlord, provided that before such notice Tenant
has been notified in writing of the address of such mortgagee. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then mortgagee shall have an additional fifteen (15)
days within which to cure such default; provided, however, that if such default
cannot be reasonably cured within that time, then such mortgagee shall have such
additional time as may be necessary to cure such default so long as mortgagee
has commenced and is diligently pursuing the remedies necessary to cure such
default (including, without limitation, the commencement of foreclosure
proceedings, if necessary), in which event this Lease shall not be terminated
while such remedies are being so diligently pursued. In the event of the sale of
the Property or the Leased Premises, by foreclosure or deed in lieu thereof, the
mortgagee or purchaser at such sale shall be responsible for the return of the
security deposit only to the extent that such mortgagee or purchaser actually
received the security deposit. In addition, Tenant shall not pay any rental
hereunder for more than one (1) month in advance.
20. Estoppel Certificates. Tenant agrees, at any time and from time to
time, upon not less than five (5) business days prior notice by Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing (i)
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications the nature of same), (ii) stating the dates to
which the Minimum Annual Rent and Additional Rent have been paid by Tenant,
(iii) stating whether or not to the best knowledge of Tenant, Landlord is in
default in the performance of any covenant, agreement or condition contained in
this Lease, and, if so, specifying each such default of which Tenant may have
knowledge, (iv) stating the address to which notices to Tenant should be sent,
and (v) certifying such other matters as may be requested by Landlord. Any such
statement delivered pursuant hereto may be relied upon by an owner of the
Property, any prospective purchaser of the Property, any mortgagee or
prospective mortgagee of the Property, or of Landlord's interest therein, or any
prospective assignee of any such mortgage.
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21. Damage by Fire or Other Casualty.
(a) Restoration. If the Leased Premises shall be damaged by fire
or other casualty but such damage does not render the Leased Premises wholly
unfit for Tenant's business operations as shall be determined by Landlord and
Tenant in their reasonable business judgment, Landlord, at Landlord's expense,
shall promptly restore the Leased Premises, and Tenant, at Tenant's sole
expense, shall promptly restore all leasehold improvements installed in the
Leased Premises by Tenant or at Tenant's request and its own furniture,
furnishings, trade fixtures and equipment. No penalty shall accrue for
reasonable delay which may arise by reason of adjustment of insurance on the
part of Landlord, or on account of labor problems, or any other cause beyond
Landlord's reasonable control. Minimum Annual Rent and Additional Rent shall
abate proportionately (based on the proportion of the number of square feet
rendered untenantable to the total number of square feet of the Leased
Premises), from the date of the damage or destruction until the date the
Landlord has substantially completed such restoration. Notwithstanding anything
stated to the contrary herein, in the event that such damage shall occur during
the last year of the Lease Term, Landlord shall not be required to restore the
Leased Premises.
(b) Termination. If the Leased Premises are substantially damaged
or are rendered substantially untenantable by fire or other casualty during the
Lease Term to such an extent that it is rendered substantially unusable by
Tenant for the purposes originally contemplated by this Lease, Landlord shall
restore or repair the same unless expressly not required to do so under Section
21(c). If such damage occurs, however, at any time during the Lease Term, and
(i) Landlord's architect certifies that the Leased Premises cannot be repaired
within one hundred twenty (120) working days of normal working hours, said
period commencing on the casualty date, or (ii) Landlord shall decide to
demolish the Leased Premises or not to rebuild it, then Landlord may, within
ninety (90) days after such fire or other casualty, terminate this Lease by
giving Tenant notice of such decision, and thereupon the Lease Term shall expire
by lapse of time upon the third day after such notice is given, and Tenant shall
thereupon vacate the Leased Premises and surrender the same to Landlord. In the
event that damage to the Leased Premises cannot be repaired sufficiently within
one hundred twenty (120) days after such fire or other casualty so that Tenant
can commence to refixture the Leased Premises for the use thereof as originally
contemplated by this Lease, then Tenant shall have the right to terminate this
Lease by giving Landlord written notice thereof within said one hundred twenty
(120) day period, and thereupon the Lease Term shall expire by lapse of time
upon the third day after such notice is given, and Tenant shall thereupon vacate
the Leased Premises and surrender the same to Landlord. Upon the termination of
this Lease under the conditions hereinbefore provided, Tenant's liability for
Minimum Annual Rent and Additional Rent shall cease as of the day following the
casualty.
(c) Lender's Approval. Notwithstanding anything to the contrary in
this Section or in any other provision of this Lease, any obligation (under this
Lease or otherwise) of Landlord to restore all or any portion of the Leased
Premises shall be subject to Landlord's receipt of approval of the same by the
mortgagee(s) of Landlord (and any other approvals required by applicable laws),
as well as receipt from any such mortgagee(s) of such fire and other hazard
insurance policy proceeds as may have been assigned to any such mortgagee; it
being agreed that if Landlord has not received such approval(s) and proceeds
within one hundred and eighty (180) days after any such casualty, then Landlord
shall have the option to terminate this Lease, at any time thereafter, by notice
to Tenant. Landlord shall diligently
-19-
pursue the receipt of all approvals and insurance policy proceeds which are
described in this Section 21(c).
22. Condemnation. In the event the whole or a "substantial part" (as
hereinafter defined) of the Leased Premises shall be taken for any public or
quasi-public purpose by any lawful power or authority by exercise of the right
of appropriation, condemnation or eminent domain, or sold to said authority to
prevent such taking (collectively referred to herein as a "taking"), this Lease
shall terminate effective as of the date possession is required to be
surrendered to said authority, and the Minimum Annual Rent and Additional Rent
shall be apportioned as of the date. For purposes of this Section, a
"substantial part" of the Leased Premises shall be considered to have been taken
if fifty percent (50%) or more of the Leased Premises is taken or condemned.
Tenant shall not assert any claim against Landlord or the taking authority for
any compensation arising out of or related to such taking and Landlord shall be
entitled to receive the entire amount of any award without deduction for any
estate or interest of Tenant; provided, however, that nothing contained in this
section shall be deemed to give Landlord any interest in any award made to
Tenant for the taking of personal property and fixtures belonging to Tenant or
for Tenant's moving expenses, as long as such award is made in addition to and
separately stated from any award made to Landlord for the Leased Premises and
the Property. If less than fifty percent (50%) of the Leased Premises is so
taken, the Lease shall continue to be in full force and effect, and the Minimum
Annual Rent and Additional Rent shall be adjusted (based on the ratio that the
number of square feet of rentable area taken from the Leased Premises bears to
the number of rentable square feet in the Leased Premises immediately prior to
such taking) as of the date possession is required to be surrendered to said
authority; provided, however, Landlord shall have the right to determine that
the Leased Premises should be demolished and not rebuilt, in which event
Landlord may, within ninety (90) days after such taking, terminate this Lease by
giving Tenant notice of such decision, and thereupon the Lease Term shall expire
by lapse of time upon the third day after such notice is given, and Tenant shall
thereupon vacate the Leased Premises and surrender the same to Landlord. In the
event that the Lease remains in full force and effect in accordance with the
terms described above, Landlord shall be obligated to repair and restore the
Leased Premises to usable condition by Tenant, and such repair shall be a
condition precedent to the continued effectiveness of this Lease. Landlord shall
have no obligation to contest any taking.
23. Landlord's Liability. Landlord, or its agents, shall not be liable
for any injury or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, water, rain, or leaks from any part of
the Leased Premises, or from the pipes, conduits, appliances or plumbing works,
or by dampness or by any other cause of whatsoever nature, unless caused by or
due to the gross negligence of Landlord, its agents, servants, or employees. All
personal property and equipment located in the Leased Premises shall be at the
risk of Tenant.
24. Tenant's and Landlord's Liability. Tenant shall reimburse Landlord
for all expense, damages or fines, incurred or suffered by Landlord by reason of
any breach, violation or nonperformance by Tenant, or its agents, servants, or
employees, of any covenant or provision of this Lease or the Rules and
Regulations promulgated by Landlord hereunder from time to time, or by reason of
damage to persons or property caused by moving property of or for Tenant in or
out of the Property, or by the installation or removal of furniture or other
property of or for Tenant, by reason of or arising out of the carelessness,
negligence or improper conduct of Tenant, or its agents, servants, employees,
invitees or licensees in the use or
-20-
occupancy of the Leased Premises or the common areas of the Property. Landlord
shall reimburse Tenant for all expense, damages or fines, incurred or suffered
by Tenant by reason of any breach, violation or nonperformance by Landlord, or
its agents, servants, or employees, of any covenant or provision of this Lease,
by reason of or arising out of the gross negligence of Landlord, or its agents,
servants, employees, invitees or licensees.
25. Indemnity.
(a) By Tenant. Tenant shall indemnify and defend Landlord and
its agents and employees and save them harmless from and against any and all
claims, actions, damages, liabilities and expense in connection with loss of
life, personal injury and/or damage to property arising from or out of any
occurrence in, upon or at the Leased Premises, or the occupancy or use by Tenant
of the Leased Premises or any part thereof, or occasioned wholly or in part by
any act or omission of the Tenant, its agents, contractors, employees, servants,
invitees or licensees, whether inside the Leased Premises or elsewhere in the
Property.
(b) By Landlord. Landlord shall indemnify and defend Tenant and
its agents and employees and save them harmless from and against any and all
claims, actions, damages, liabilities and expense in connection with loss of
life, personal injury and/or damage to property occasioned wholly or in part by
any act or omission of the Landlord, its agents, contractors, employees,
servants, invitees or licensees, whether inside the Leased Premises or elsewhere
in the Property.
26. Tenant's Insurance.
(a) Coverages. Tenant shall have issued, pay the premiums
therefor, and maintain in full force and effect during the Lease Term and any
option period:
(i) Comprehensive Liability. A
commercial general liability
insurance policy or policies in
which the Landlord and Landlord's
mortgagee(s) (and such additional
persons and/or entities as Landlord
may request) and Tenant shall be the
insured, protecting the Landlord and
Landlord's mortgagee(s) (and such
additional persons and/or entities
as Landlord may request) and Tenant
in the amount of at least Three
Million and No/100 Dollars
($3,000,000.00) combined, single
limit coverage for bodily injury,
including death, or property damage,
which amount may be increased from
time to time by Landlord in its
reasonable determination;
(ii) All-Risk Casualty. All-risk casualty
insurance, naming Landlord (and such
additional persons and/or entities
as Landlord may request) and Tenant
as insureds (as their interests may
appear), written at replacement cost
value and with replacement cost
endorsement, covering all leasehold
improvements installed in the Leased
Premises by Tenant or at Tenant's
request and all of Tenant's personal
property in the Leased Premises
(including, without limitation,
inventory, trade fixtures, floor
coverings, furniture and other
property removable by Tenant under
the provisions of this Lease).
-21-
(iii) Workers' Compensation. If and to the
extent required by law, workers'
compensation and employer's
liability or similar insurance in
form and amounts required by law.
(b) Policy Requirements. Tenant's failure to provide such
insurance or failure to pay the premiums when due, shall be deemed a default
hereunder. Any monies expended by Landlord to cure said default shall be deemed
Additional Rent and shall be due and owing with Tenant's next payment of Basic
Monthly Rent. All such policies shall contain only such reasonable deductible
amounts as may be approved in advance by Landlord and shall contain a provision
that Landlord shall receive not less than thirty (30) days advance notice in
writing from the insurance company of any intention of the insurance company to
cancel such policy or policies. Tenant shall provide written evidence to
Landlord of its acquisition of such policies prior to the commencement of this
Lease and prior to any renewal date of such policies. All policies shall be
carried with a reputable insurance company qualified to do business in the State
of Maryland and rated not lower than A-XII in the A.M. Best Rating Guide.
(c) No Limitation of Liability. Neither the issuance of any
insurance policy required under this Lease nor the minimum limits specified
herein shall be deemed to limit or restrict in any way Tenant's liability
arising under or out of this Lease.
27. Waiver of Subrogation. Landlord and Tenant mutually covenant and
agree that each party, in connection with insurance policies required to be
furnished in accordance with the terms and conditions of this Lease, or in
connection with insurance policies which they obtain insuring such insurable
interest as Landlord or Tenant may have in its own properties, whether personal
or real, shall expressly waive any right of subrogation on the part of the
insurer against the Landlord (and any mortgagee requested by Landlord) or Tenant
as the same may be applicable, which right to the extent not prohibited or
violative of any such policy is hereby expressly waived, and Landlord and Tenant
each mutually waive all right of recovery against each other, their agents, or
employees for any loss, damage or injury of any nature whatsoever to property or
person for which either party carries insurance or is required by this Lease to
carry insurance.
28. No Liens Permitted; Discharged. Tenant will not permit to be created
or to remain undischarged any lien, encumbrance or charge (arising out of any
work done or materials or supplies furnished, or claimed to have been done or
furnished, by any contractor, mechanic, laborer or materialman or any mortgage,
conditional sale, security agreement or chattel mortgage, or otherwise by or for
Tenant) which might be or become a lien or encumbrance or charge upon the
Property or any part thereof or the income therefrom. If any lien, or notice of
lien on account of an alleged debt of Tenant or any notice of contract by a
party engaged by Tenant or Tenant's contractor to work on the Leased Premises
shall be filed against the Property or any part thereof, Tenant, within fifteen
(15) days after notice of the filing thereof, will cause the same to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such lien or notice of
lien to be discharged within the period aforesaid, then, in addition to any
other right or remedy, Landlord may, but shall not be obligated to, discharge
the same either by paying the amounts claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings and in any such
event Landlord shall be entitled, if Landlord so elects, to compel the
prosecution of an action for the
-22-
foreclosure of such lien by the lienor and to pay the amount of the judgment in
favor of the lienor with interest, costs and allowances. Any amount so paid by
Landlord and all reasonable costs and expenses, including attorneys' fees,
incurred by Landlord in connection therewith, shall constitute Additional Rent
payable by Tenant under this Lease and shall be paid by Tenant to Landlord on
demand. Nothing herein contained shall obligate Tenant to pay or discharge any
lien created by Landlord.
29. Signs, Awnings and Canopies. Tenant will not place or suffer to be
placed or maintained on the exterior of the Leased Premises any sign, awning or
canopy, or other written matter of any kind, without first obtaining Landlord's
written approval which shall not be unreasonably withheld or delayed, provided
that any such sign, awning, canopy or written matter is in compliance with the
applicable federal, state and/or county regulations. Tenant further agrees to
maintain in good condition and repair at all times such sign, awning, canopy,
decoration, lettering, or written matter as may be approved. Any of said items
so installed without such written approval and consent may be removed by
Landlord at Tenant's expense.
30. Environmental Protection. Tenant and Tenant's employees and agents
shall not dispose of any oil, petroleum or chemical liquids or solids, liquid or
gaseous products or any hazardous waste or hazardous substance including,
without limitation, asbestos (hereinafter collectively referred to as "hazardous
waste"), as those terms are used in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, or in any other federal, state or local
law governing hazardous substances, as such laws may be amended from time to
time (hereinafter collectively referred to as the "Act"), at, upon, under or
within the Leased Premises or the Property, or into the plumbing or sewer or
water system servicing the Leased Premises and/or the Property, nor shall
Tenant, its agents or employees cause or permit the discharge, spillage,
uncontrolled loss, seepage or filtration of any hazardous waste at, upon, under
or within the Leased Premises or the Property or into the plumbing or sewer or
water system servicing the same. Notwithstanding the foregoing, Landlord
acknowledges that the use which Tenant contemplates for the Leased Premises
involves the use, storage, and disposal of materials which are defined herein as
hazardous waste, and Tenant shall have the right to maintain such materials on
the Leased Premises so long as they are used, stored and disposed of in
accordance with the Act. Tenant shall comply in all respects with the
requirements of the Act and related regulations, and shall notify Landlord
immediately in the event of its discovery of any hazardous waste at, upon, under
or within the Leased Premises or the Property which has not been used, stored or
disposed of in accordance with the Act. Tenant shall advise Landlord, in
writing, of the identities of hazardous wastes being used and stored in the
Leased Premises promptly upon written request from Landlord, but in no event
less frequently than once every twelve (12) months. Tenant shall indemnify
Landlord against all costs, expenses, liabilities, losses, damages, injunctions,
suits, fines, penalties, claims, and demands, including reasonable attorneys'
fees, arising out of any violation of or default by Tenant, and its employees
and agents, in the covenants of this Section. The provisions of this Section
shall survive the expiration of the Lease Term.
31. Notices. All notices to be given under this Lease shall be in
writing and either (i) hand-delivered, (ii) sent by Federal Express (or other
nationally recognized, overnight mail courier service), (iii) or mailed by
United States Certified or Registered Mail, return receipt requested, postage
prepaid. Notices should be delivered as follows:
(a) To Landlord to the attention of the "General Manager"
at the business and mailing address
-23-
stated on page 1 of this Lease, with a copy to
Shulman, Rogers, Gandal, Pordy & Ecker, P.A., 11921
Rockville Pike, Suite 300, Rockville, Maryland 20852,
attn: Karl L. Ecker, Esquire. Pursuant to the terms of
Section 19(a) hereof, for so long as Signet
Bank/Maryland holds a first lien security interest in
the Property, a copy of any notice of default served
on Landlord shall be delivered to Signet Bank/Maryland
at 7700 Wisconsin Avenue, Suite 400, Bethesda,
Maryland 20814, attn: Ms. Susan Benninghoff, Vice
President.
(b) To Tenant to the attention of Richard T. Schumacher,
President, at the business and mailing address stated
on page 1 of this Lease, with a copy to Brown Rudnick
Freed & Gesmer, One Financial Center, Boston,
Massachusetts 02111, attn: Howard L. Levin, Esquire.
Any such notice shall be deemed to be received on the date it is hand-delivered
or delivered by Federal Express (or other nationally recognized, overnight mail
courier service), or on the third day after the date on which it is deposited in
the U.S. mails. Landlord, Tenant and Signet Bank/Maryland shall each have the
right to change the person and/or address to which notices shall be delivered
upon notice thereof to the other parties sent pursuant to the provisions of this
paragraph.
32. Time. Landlord and Tenant acknowledge that time is of the essence in
the performance of any and all obligations, terms, and provisions of this Lease.
33. Postponement of Performance. In the event that either party hereto
shall be delayed or hindered in or prevented from the performance of any act
required hereunder by reason of strikes, labor troubles, inability to procure
labor or materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war, acts of God, fire or other casualty or
other reason of a similar or dissimilar nature beyond the reasonable control of
the party delayed in performing work or doing acts required under the terms of
this Lease, then performance of such act shall be excused for the period of the
delay and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay; provided, however that nothing in
this section shall excuse any delay in the payment of Minimum Annual Rent or
Additional Rent; and provided, further, that delays or failures to perform
resulting from lack of funds shall not be deemed delays beyond the reasonable
control of a party. Nothing contained herein shall be construed to limit the
provisions concerning the abatement of Minimum Annual Rent and Additional Rent
resulting from fire and casualty damage or from condemnation damage to the
Leased Premises as more fully described in Sections 21 and 22 hereof.
34. Brokers. Landlord and Tenant represent and warrant each to the
other that neither has authorized any broker, agent or finder purporting to act
on either's behalf in respect to this Lease transaction except the Leasing
Broker specified in Section l(a)(11), and each hereby agree to indemnify and
hold harmless one from the other from and against any cost, expense, claims,
liability or damage resulting from a breach of the representation and warranty
herein contained.
35. No Waiver. No waiver by Landlord or Tenant of any breach of any of
the terms, covenants, agreements, or conditions of this Lease shall be deemed to
constitute a waiver of any succeeding breach thereof, or a waiver of any breach
of any of the other terms, covenants, agreements, and conditions herein
-24-
contained. No provision of this Lease shall be deemed to have been waived by
Landlord or Tenant, unless such waiver be in writing signed by such party. No
employee of Landlord or of Landlord's agents shall have any authority to accept
the keys of the Leased Premises prior to termination of the Lease, and the
delivery of keys to any employee of Landlord or Landlord's agents shall not
operate as a termination of the Lease or a surrender of the Leased Premises. The
receipt by Landlord of any payment of Minimum Annual Rent or Additional Rent
with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. The failure of Landlord to enforce any of the Rules and
Regulations made a part of this Lease, or hereafter adopted, against Tenant or
any other tenant in the Property shall not be deemed a waiver of any such Rules
and Regulations.
36. Amendments. This Lease and the Exhibits attached hereto, together
with the terms and conditions of that certain Assets for Cash Purchase
Agreement, of even date, entered into by and between Landlord, Tenant and
Tenant's Guarantor, which describe the sale and purchase of certain assets by
Landlord to Tenant and Tenant's Guarantor, contain the entire agreement between
the parties, and any agreement hereafter made shall be ineffective to change,
modify, discharge or effect an abandonment in whole or in part unless such
agreement is in writing and signed by the party against whom enforcement of the
change, modification, discharge or abandonment is sought.
37. Applicable Law. The laws of the State of Maryland shall govern the
validity, performance and enforcement of this Lease.
38. Transfer of the Property. In the event of the sale or other transfer
of Landlord's right, title and interest in the Leased Premises or the Property
(except in the case of a sale- leaseback financing transaction in which Landlord
is the lessee), Landlord shall transfer and assign to such purchaser or
transferee all amounts of pre-paid Minimum Annual Rent and Additional Rent, and
provided that the purchaser or transferee shall assume all of the surviving
liabilities and obligations of Landlord hereunder accruing after the
consummation of such sale or transfer, Landlord thereupon shall be released from
all liability and obligations hereunder derived from this Lease arising out of
any act, occurrence or omission relating to the Leased Premises or this Lease
occurring after the consummation of such sale or transfer. Tenant shall have no
right to terminate this Lease, to abate Minimum Annual Rent or Additional Rent,
nor to deduct from, nor set-off, nor counterclaim against Minimum Annual Rent or
Additional Rent because of any sale or transfer (including, without limitation,
any sale-leaseback) by Landlord or its successors or assigns.
39. Extension Option. Provided (i) that this Lease shall be in full
force and effect; (ii) that BTRL Contracts and Services, Inc. (or a permitted
assignee of Tenant [which is a related party to Tenant] pursuant to the
provisions of Section 15 hereof) shall be the tenant hereunder; and (iii) that
Tenant shall not be in default under any of the terms, provisions, covenants or
condition of this Lease, then, and only in such event, Tenant shall have the
right, at Tenant's sole option, to extend the term of this Lease for two (2)
additional periods of five (5) years each ("Extension Terms"). Each such
extension option shall be exercisable by Tenant giving written notice of the
exercise of such extension option to Landlord no sooner than three hundred
sixty-five (365) days and no later than one hundred eighty (180) days prior to
the expiration date of the then-current term; provided, however, in the event
Tenant fails to exercise any option to extend during the aforesaid period such
extension option shall become null and void and all rights with respect thereto
and with respect to any subsequent extension option shall become null and void
and all rights with respect
-25-
thereto and with respect to any subsequent extension option shall automatically
terminate and expire. Each Extension Term shall be upon the same terms,
covenants and conditions as set forth herein with respect to the Lease Term,
except that Minimum Annual Rent payable during each Lease Year of each Extension
Term shall be computed in the following manner. On the first day of the first
Lease Year of the first Extension Term, and on the first day of each Lease Year
thereafter during the remainder of the first Extension Term and during the
Second Extension Term, the Minimum Annual Rent (then in effect) shall be
adjusted by [Language Deleted Due To Confidential Treatment Request.] of any
change in the Index now known as "United States Bureau of Labor Statistics,
Consumer Price Index for All Urban Consumers, All Items (1982-1984=100)"
("Index"), provided, however, that the amount of Minimum Annual Rent payable by
Tenant during any Lease Year of an Extension Term pursuant to this provision
shall not be less than [Language Deleted Due To Confidential Treatment
Request.]of the Minimum Annual Rent paid during the previous Lease Year. Subject
to the foregoing, each such adjustment shall be accomplished (and shall be
effective for the entire then- operative Lease Year) by adding to the Minimum
Annual Rent (then in effect) the amount created by multiplying the Minimum
Annual Rent then in effect by the amount created by subtracting one (1) from a
fraction, the numerator of which shall be the most recently published monthly
Index figure prior to the date of the adjustment, and the denominator of which
shall be the published monthly Index figure for the same month of the previous
year. Landlord shall give Tenant written notice of each such adjustment and the
amount of Minimum Annual Rent payable during the forthcoming Lease Year. Should
said Index cease to be published, then the closest similar published Index by an
agency of the United States Government shall be substituted. Should there be no
such substitute, then the parties hereto shall, under rules of the American
Arbitration Association, agree to a substitute formula, or source, designed to
accomplish the same original purpose of this provision. This extension option is
personal to Tenant, and shall not be available to any other subtenant or
assignee of the Lease (other than a party which is related to Tenant),
regardless of whether such sublease or assignment was approved by Landlord in
the manner described herein.
40. Right of First Offer. In the event that, during the Lease Term,
Landlord determines to sell the Property to any party which is unrelated to
Landlord, then, provided that (i) this Lease shall be in full force and effect;
(ii) that BTRL Contracts and Services, Inc. (or a permitted assignee of Tenant
[which is a related party to Tenant] pursuant to the provisions of Section 15
hereof) shall be the tenant hereunder; and (iii) Tenant shall not be in default
under any of the terms, provisions, covenants or conditions of this Lease, then,
and only in such event, Tenant shall have the first right to purchase the
Property upon the following terms and conditions. Promptly after determining the
terms and conditions upon which the Property shall be sold to a third party,
Landlord shall give Tenant written notice of its opportunity to purchase same,
by presenting Tenant with an execution copy of a Contract of Sale for the
Property containing all material terms and conditions as determined by Landlord
to be appropriate for the sale of the Property. Tenant shall exercise its right
of first offer by executing the copy of the Contract of Sale tendered by
Landlord and returning it to Landlord (together with any required earnest money
deposit) within thirty (30) calendar days of the date on which Landlord
delivered the proposed Contract of Sale to Tenant. The failure of Tenant to
execute and deliver the Contract of Sale (and required earnest money deposit) to
Landlord within the aforesaid thirty (30) calendar day period shall
automatically extinguish Tenant's right to exercise such right of first offer
with regard to the Property, and further shall relieve Landlord of any and all
liability with respect to same; provided that such right of first offer shall be
reinstated, without further act required by any party, in the event that
Landlord has not settled on the sale of the Property within three hundred
sixty-five (365) days of the expiration date of Tenant's right of first offer as
described
-26-
herein. Notwithstanding the foregoing, Landlord shall not thereafter offer to
sell the Property to any third party for a purchase price which is less than
that offered to Tenant or upon such other material terms and conditions which
are substantially less advantageous to the purchaser, without first renewing its
offer to Tenant to purchase same at the lesser amount of purchase price (and
affording Tenant the right to exercise its first right of offer in the manner
described herein). Should Tenant fail to exercise properly its right of first
offer as described above, Landlord shall be free to proceed with the sale of the
Property to any third party, free and clear of all rights of Tenant; provided
that such right of first offer shall be reinstated, without further act required
by any party, in the event that Landlord has not settled on the sale of the
Property within three hundred sixty-five (365) days of the expiration date of
Tenant's right of first offer as described herein. In the event that Tenant
exercises its right of first offer as provided herein, then Landlord and Tenant
shall proceed to settlement thereunder in accordance with the terms and
conditions of the Contract of Sale. In the event that Tenant thereafter fails to
settle on its purchase of the Property in accordance with the terms and
conditions of the Contract of Sale, then Landlord shall have the right (but not
the obligation), as determined in its sole and absolute discretion, to terminate
this Lease, in addition to exercising any and all rights available to it
pursuant to the terms and conditions of the Contract of Sale. Landlord shall
exercise its right to terminate this Lease by giving written notice thereof to
Tenant, in which event this Lease shall terminate on the third day after the
giving of such notice, and Tenant shall deliver possession of the Leased
Premises to Landlord. This right of first offer is personal to Tenant, and shall
not be available to any other subtenant or assignee of the Lease (other than a
party which is related to Tenant), regardless of whether such sublease or
assignment was approved by Landlord in the manner described herein.
41. Right of First Refusal. Provided (i) that Landlord has not
offered Tenant the right to purchase the Property for a purchase price which is
equal to or less than the offer described below and is upon such material terms
and conditions which are substantially the same or more advantageous to the
purchaser than are contained in the offer described below, and that Tenant's
right of first offer has not expired (and Tenant's right under Section 40 has
not been reinstated), all pursuant to the terms and conditions of Section 40
hereof; (ii) that this Lease shall be in full force and effect; (iii) that BTRL
Contracts and Services, Inc. (or a permitted assignee of Tenant [which is a
related party to Tenant] pursuant to the provisions of Section 15 hereof) shall
be the tenant hereunder; and (iv) that Tenant shall not be in default under any
of the terms, provisions, covenants or condition of this Lease, then, and only
in such event, Tenant shall have the right of first refusal to purchase the
Property (the "Right of First Refusal") upon the following terms: If at any time
during the Lease Term, Landlord shall receive a bona fide offer from a third
party for the purchase of the Property, which offer Landlord desires to accept,
Landlord promptly shall deliver to Tenant a copy of such offer. Tenant may,
within thirty (30) days after receipt of such offer, elect to purchase the
Property on the same terms and conditions as set forth in such offer, by
delivering to Landlord written notice of said exercise within the aforesaid
thirty (30) day period. In the event that Landlord shall receive an offer for
the purchase of the Property which is not consummated by delivering a deed to
the offeror, Tenant's Right of First Refusal as set forth herein shall remain
applicable to subsequent offers made to Landlord. In the event that Landlord
shall sell the Property after Tenant fails to exercise its Right of First
Refusal, such sale shall be subject to the terms of this Lease, provided,
however, the Right of First Offer and the Right of First Refusal as set forth in
this Lease shall expire upon the date of conveyance of the Property to said
third party, and said rights shall not continue in force or effect, nor shall
they be applicable to any
-27-
subsequent sale or ownership of the Property by successive parties. In the event
that any mortgagee or holder of a deed of trust or other security interest in
the Property shall foreclose on the Property or accept a deed in lieu of
foreclosure as a result of the failure of Landlord to pay any debt secured by
the Property, the Right of First Offer and the Right of First Refusal as set
forth in this Lease shall expire automatically upon the date of conveyance of
the Property to said mortgagee or holder of a security interest therein (or to
any third party assignee of said mortgagee or holder of a security interest
therein), and said Right of First Offer and the Right of First Refusal shall not
continue in force or effect, nor shall they be applicable to any subsequent sale
or ownership of the Property by successive parties.
42. Waiver of Counterclaim and Trial by Jury/Attorneys Fees. Landlord
and Tenant waive their right to trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other (except
for personal injury or property damage) on any matters whatsoever arising out of
or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use of or occupancy of the Leased Premises, and any emergency
statutory or any other statutory remedy. Tenant shall not interpose any
counterclaim(s) or claim(s) for set-off, recoupment or deduction of Minimum
Annual Rent or Additional Rent in a summary proceeding for nonpayment of Minimum
Annual Rent or Additional Rent, unless such counterclaim is mandatory in nature
and must be interposed in such summary proceeding initiated by Landlord or
otherwise be deemed waived. In the event either Landlord or Tenant institute an
action or proceeding against the other to enforce the terms and conditions of
this Lease, the prevailing party shall be entitled to recover all reasonable
attorneys fees and costs incurred as a result thereof.
43. Separability. If any term or provision of this Lease or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby and each other term
and provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
44. Corporate Authority. Concurrently with the execution of this Lease,
Tenant has delivered to Landlord a certified copy of a resolution of Tenant's
Board of Directors (or other evidence reasonably satisfactory to Landlord)
approving the leasing of the Leased Premises by Tenant pursuant to the terms and
conditions contained herein, stating that this Lease is fully binding upon
Tenant, and authorizing the execution of this Lease by each person signing this
Lease on behalf of Tenant.
45. Interpretation.
(a) Captions. The captions, marginal references, General
Information sheet, and table of contents appearing in this Lease are inserted
only as a matter of convenience and in no way amplify, define, limit, construe,
or described the scope or intent of this Lease nor in any way affect this Lease.
(b) Gender. The neuter, feminine or masculine pronoun when used
herein shall each include each of the other genders and the use of the singular
shall include the plural.
(c) Covenants. The parties hereto agree that all the provisions of
this Lease are to be construed as covenants and agreements as though the words
importing such covenants and agreements were used in each separate provision
hereof.
(d) Interpretation. Although the printed provisions of this Lease
were drawn by Landlord, this Lease shall
-28-
not be construed for or against Landlord or Tenant, but this Lease shall be
interpreted in accordance with the general tenor of the language in an effort to
reach the intended result.
46. Landlord's Agreement re: Contract of Sale of the Property. Landlord
agrees that, during the Lease Term and prior to its execution of any contract
for the sale of the Property to a prospective purchaser, it shall give written
notice of the existence of this Lease and Tenant's occupancy rights in and to
the Leased Premises (together with a copy of this Lease), to any such
prospective purchaser of the Property.
47. Reasonableness of Expenses. Wherever it is required by the terms of
this Lease that one party reimburse the other party for costs and expenses
incurred in connection with the performance of an obligation or the exercise of
a right described herein, unless expressly stated otherwise, all costs and
expenses for which such reimbursement is sought shall be reasonable in amount
and nature, as determined in accordance with local standards of commercial
reasonableness in the District of Columbia metropolitan area.
48. Limits of Landlord's Liability. In the event that any mortgagee or
holder of a deed of trust or other security interest in the Property shall
foreclose on the Property or accept a deed in lieu of foreclosure as a result of
the failure of Landlord to pay any debt secured by the Property, then,
thereafter, neither the owner of the Property, as Landlord, nor its agents,
employees or officers, whether disclosed or undisclosed, shall have any personal
liability under any provision of this Lease, and if such a subsequent owner of
the Property, as Landlord, defaults in the performance of any of its obligations
hereunder or otherwise, Tenant shall look solely to Landlord's equity, interest
and rights in the Property for satisfaction of Tenant's remedies on account
thereof.
49. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, and the heirs, personal representatives,
successors and assigns of said parties.
IN WITNESS WHEREOF, the parties hereto have duly executed, sealed, and
delivered this Lease, or have caused same to be executed, sealed and delivered
by their duly authorized attorney-in-fact, as of the day and year above written.
WITNESS LANDLORD:
Cambridge Biotech Corporation,
a Delaware corporation
By: /s/ signature unreadable (SEAL)
- --------------------------- ---------------------------------
/s/ signature unreadable
---------------------------------
Date of Execution: July 14, 1992
---------
WITNESS/ATTEST: TENANT:
BTRL Contracts and Services, Inc.,
a Massachusetts corporation
/s/ signature unreadable By: /s/ signature unreadable (SEAL)
---------------------------------
/s/ signature unreadable , President
--------------------------
Date of Execution: July 14, 1992
--------
EXHIBIT C
RULES AND REGULATIONS
Tenant agrees as follows:
1. Tenant will keep the Leased Premises and approaches thereto clean
and free from rubbish; will remove snow, ice and debris from the adjacent
sidewalks; will keep all windows and any sign neat, clean and in good order;
will not erect any screen or fence; and will not perform any acts or carry on
any practices which may damage the Leased Premises or the Property or be a
nuisance or menace to other tenants.
2. Tenant shall not obstruct or interfere with the rights of others to
use any Property driveways, parking facilities, sidewalks, exits, entrances, if
any.
3. Tenant shall not store any material, supplies, equipment, wooden
pallets, vehicles or anything whatsoever outside of the Leased Premises. If any
such items are not removed within forty-eight (48) hours Landlord shall have the
right to remove the same, with prior notice to Tenant, and with no
responsibility to Tenant for loss or damage to such items, and the cost to
Landlord of such removal shall be deemed to be Additional Rent under the Lease
and will be immediately paid by Tenant to Landlord upon demand.
4. Business and mechanical equipment which cause noise or vibration that
may be transmitted to the structure of the Leased Premises or to any space
therein to such a degree as to be objectionable to Landlord or any other tenant
of the Property, shall be placed and maintained by Tenant, at Tenant's expense,
on vibration eliminators or other devices sufficient to eliminate noise or
vibration.
5. Tenant shall comply with any governmental energy-saving rules, laws
or regulations of which Tenant has notice.
6. The sewage system shall not be used for any purpose other than that
for which it was constructed and no foreign substance of any kind whatsoever
shall be thrown therein. The expense of any breakage, stoppage or damage
resulting from the violation of this rule shall be borne by the Tenant who, or
whose employees or invitees, shall have caused it.
7. Should the Tenant, its agents or invitees, activate its sprinkler
system (if there is one in the Leased Premises), Tenant agrees that it will pay,
as Additional Rent to Landlord, any damage to the Leased Premises and to
property of other Property tenants.
8. All trash and garbage shall be kept within the Leased Premises (or in
a dumpster placed on the common areas of the Property at a location reasonably
satisfactory to Landlord) and collected on a regular basis. Tenant shall not
place in any trash box or receptacle any material which cannot be disposed of in
the ordinary and customary manner of trash and garbage disposal.
9. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by or any governmental agency having
jurisdiction.
10. Tenant assumes any and all responsibility for protecting the Leased
Premises from theft, robbery and pilferage which includes keeping doors locked
and other means of entry to the Leased Premises closed.
11. Tenant shall keep the inside and the outside of all glass in the
doors and windows within the Leased Premises clean, keep all exterior surfaces
of the Leased Premises clean, replace
promptly any cracked or broken glass of the Leased Premises with glass of like
kind, color, and quality.
12. Tenant shall be responsible for the observance of all the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and guests.
13. Tenant shall give Landlord immediate notice in case of fire or
accidents in the Leased Premises, and in case of fire or accidents on the
Property involving Tenant, its agents, employees or invitees.
GUARANTY
In consideration of, and as a material inducement to Cambridge Biotech
Corporation, a Delaware corporation qualified to do business in the State of
Maryland, with a business and mailing address at 1500 East Gude Drive,
Rockville, MD 20850 (the "Landlord"), executing and delivering simultaneously
herewith, in reliance upon this Guaranty, that certain Lease (the "Lease"),
dated as of June 30, 1992, between Landlord and BTRL Contracts and Services,
Inc., a Massachusetts corporation qualified to do business in the State of
Maryland ("Tenant"), the undersigned, Boston Biomedica, Inc., a Massachusetts
corporation (the "Guarantor"), with a business and mailing address at 375 West
Street, West Bridgewater, Massachusetts 02379, hereby unconditionally and
absolutely guarantees unto Landlord, its successors and assigns, the full,
prompt and complete payment by Tenant of the Minimum Annual Rent and Additional
Rent provided in the Lease, and the prompt, faithful and complete performance
and observance by Tenant of all of the terms, covenants and conditions of the
Lease on the Tenant's part to be performed and/or observed. Upon the failure of
Tenant to make any such payment of Minimum Annual Rent or Additional Rent
provided in the Lease, or to perform or observe any such term, covenant or
condition of the Lease on the Tenant's part to be performed and/or observed,
Guarantor shall, promptly upon demand, pay such required sum to Landlord, or
perform or observe the required term, covenant or condition of the Lease.
Guarantor does hereby waive notice of any and all defaults on the part
of the Tenant, waives acceptance and notice of acceptance of this Guaranty, and
waives all demand for payment and/or performance; and Guarantor agrees that no
delay on the part of Landlord in enforcing any of its rights or remedies or
insisting thereupon, nor any extension of time nor any changes or modifications
in or to, or in connection with the Lease, shall in any way limit, affect or
impair the liability of Guarantor hereunder; and Guarantor hereby expressly
consents to and approves thereof with the same force and effect as though its
written consent had been given to each of such delays, extensions, changes and
modifications.
This Guaranty is independent of and in addition to any security or other
remedies which Landlord has or may have for the performance of any of the
obligations on the part of Tenant; and Guarantor agrees that Landlord shall not
be required to resort to any other security or other remedies before proceeding
upon this Guaranty, but that Landlord may proceed hereunder against Guarantor at
any time it sees fit, independently of or concurrently with any other remedies
it may have.
This Guaranty shall remain in full force and effect notwithstanding the
institution by or against Tenant, of bankruptcy, reorganization, readjustment,
receivership or insolvency proceedings of any nature, or the disaffirmance of
the Lease in any such proceedings or otherwise.
If Guarantor is a corporation and is merged into or with any other
company, firm or corporation, the resulting merged company, firm or corporation
shall become liable as Guarantor under this Guaranty to the same extent as the
original named Guarantor hereunder.
Concurrently with the execution of this Guaranty, Guarantor has
delivered to Landlord a certified copy of a resolution of its Board of Directors
(or other evidence reasonably satisfactory to Landlord) approving the guaranty
by Guarantor of Tenant's obligations contained in the Lease pursuant to the
terms and conditions contained herein, stating that this Guaranty is fully
binding upon Guarantor, and authorizing the execution of this Guaranty by each
person signing this Lease on behalf of Guarantor.
This Guaranty shall be binding upon the undersigned, the undersigned's
successors and assigns, and shall inure to the benefit of Landlord, its
successors and assigns, and to the benefit of any successors to the interest of
Landlord under the Lease and/or to the Leased Premises.
IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty
under seal as of the 30th day of June, 1992.
WITNESS/ATTEST: GUARANTOR:
Boston Biomedica, Inc.
/s/ signature unreadable By: /s/ signature unreadable (SEAL)
- ---------------------------- --------------------------------
Secretary Name: /s/ signature unreadable
---------------------------
Title: President
--------------------------
State of UNREADABLE
------------------
County of UNREADABLE
------------------
On this the 14th day of July, 1992, before me, the subscriber, a Notary Public
in and for the jurisdiction aforesaid, personally appeared UNREADABLE who
acknowledged himself/herself to be the President of Boston Biomedica, Inc., a
Massachusetts corporation, and that he/she, as such President, being authorized
so to do, executed the foregoing and annexed Guaranty for the purposes contained
therein, by signing the name of the corporation by himself/herself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ signature unreadable
-----------------------------
Notary Public
My Commission Expires 11/6/92
-------
BTRL Contracts and Services, Inc.
375 West Street
West Bridgewater, Massachusetts 02379
Re: Lease Agreement Dated as of June 30, 1992 between Cambridge
Biotech Corporation and BTRL Contracts and Services, Inc.,
covering certain premises known as 3 Taft Court, Rockville,
Maryland 20850
Gentlemen:
Reference is made to the above-reference Lease Agreement (the "Lease"),
pursuant to which Cambridge Biotech Corporation ("Landlord") has leased certain
premises known as 3 Taft Court, Rockville, Maryland, to be BTRL Contracts and
Services, Inc. ("Tenant").
In mutual consideration of Landlord and Tenant entering into the
above-referenced Lease, this will confirm that Landlord and Tenant have agreed
to supplement the provisions of the Lease as follows:
1. Landlord and Tenant have agreed to clarify the provisions of
Section 4(b)(iii), relating to insurance, so as to clarify in
the third paragraph thereof that in the event that Landlord
causes its insurance carrier to provide a written statement
reflecting the allocation of premiums paid by Landlord
attributable to the Leased Premises (as defined therein) and
the premiums attributable to the insurance carried on other
properties owned by Landlord, the premiums attributable to the
Leased Premises shall be Tenant's Proportionate Share of
insurance costs payable under the Lease.
2. Landlord has agreed to provide to Tenant, on a quarterly basis,
true and complete copies of bank statements reflecting the
status of accounts in which monies have been deposited in
escrow on account of real estate taxes pursuant to Section
4(b)(ii) of the Lease, insurance premiums pursuant to Section
4(b)(iii) of the Lease, and the Security Deposit pursuant to
Section 5 of the Lease.
3. In the event that Landlord refinances the real property of
which the Leased Premises constitute a part, Landlord agrees to
modify and amend the Lease so as to eliminate the limitations
on the Landlord's (and any subsequent owner's) liability
pursuant to Section 48 of the Lease, unless Landlord's
prospective new mortgage lender, if any, refuses (in its sole
discretion) to finance the property if such modification or
amendment is made.
EXECUTED as a sealed instrument as of the 30th day of June, 1992.
TENANT: LANDLORD:
BTRL CONTRACTS SERVICES, INC. CAMBRIDGE BIOTECH CORPORATION
BY: /s/ signature unreadable BY: /s/ signature unreadable
---------------------------- ----------------------------
Vice President