Exhibit
10.35


 


THIS
LEASE, Made this 1st day of March 2004, by and between MIE Properties, Inc. as agent for owner, herein
called “Landlord”, and BBI Biotech Research
Laboratories, Inc., herein called “Tenant”.


 


WITNESSETH, that in consideration of the rental hereinafter agreed upon and the
performance of all the conditions and covenants hereinafter set forth on the
part of Tenant to be performed, Landlord does hereby lease unto said Tenant,
and the latter does lease from the former an agreed upon 65,160 square feet at the following
premises: 8425 Progress Drive, Suites A-Y,
Frederick, Maryland 21701, (herein called the “Premises”) for the
term of Eleven (11) years,
beginning on the Rent  Commencement  Date (as defined below) and ending on the 31st day of July 2015, for the annual
rental of see Rent schedule below,
(herein called “Annual Rent”), subject to Annual Rent increases payable in
advance beginning on the Rent Commencement Date (as defined below) and on the first
day of each and every month thereafter during the term of this Lease in equal
monthly installments of see  rent schedule below (provided that
such installments shall be prorated in the case of any partial month).


 


For the first year of the lease term, Tenant will occupy and use 39,120
square feet of the Premises and commencing on August 1, 2005, Tenant will
occupy and use the entire 65,160 square feet of the Premises.


 


Said installments of Annual Rent shall be paid to MIE Properties. Inc., 5104 Pegasus Court. Suite a, Frederick, Maryland 21704, or at such other
place or to such appointee of Landlord, as  Landlord
may from time to time designate in writing.


 


	
  Lease Year

  	
   

  	
  Annual
  Rent

  	
   

  	
  Monthly
  Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  August 1, 2004 —
  July 31, 2005

  	
   

  	
  $

  	
  483,132.00

  	
   

  	
  $

  	
  40,261.00

  	
   

  
	
  August 1, 2005 —
  July 31, 2006

  	
   

  	
  $

  	
  828,867.78

  	
   

  	
  $

  	
  69,072.32

  	
   

  
	
  August 1, 2006 —
  July 31, 2007

  	
   

  	
  $

  	
  853,733.81

  	
   

  	
  $

  	
  71,144.48

  	
   

  
	
  August 1, 2007 —
  July 31, 2008

  	
   

  	
  $

  	
  879,345.83

  	
   

  	
  $

  	
  73,278.82

  	
   

  
	
  August 1, 2008 —
  July 31, 2009

  	
   

  	
  $

  	
  905,726.20

  	
   

  	
  $

  	
  75,477.18

  	
   

  
	
  August 1, 2009 —
  July 31, 2010

  	
   

  	
  $

  	
  932,897.99

  	
   

  	
  $

  	
  77,741.51

  	
   

  
	
  August 1, 2010 —
  July 31, 2011

  	
   

  	
  $

  	
  960,884.93

  	
   

  	
  $

  	
  80,073.74

  	
   

  
	
  August 1, 2011 —
  July 31, 2012

  	
   

  	
  $

  	
  989,711.48

  	
   

  	
  $

  	
  82,475.96

  	
   

  
	
  August 1, 2012 —
  July 31, 2013

  	
   

  	
  $

  	
  1,019,402.82

  	
   

  	
  $

  	
  84,950.24

  	
   

  
	
  August 1, 2013 —
  July 31,2014

  	
   

  	
  $

  	
  1,049,984.91

  	
   

  	
  $

  	
  87,498.74

  	
   

  
	
  August 1, 2014 —
  July 31, 2015

  	
   

  	
  $

  	
  1,081,484.45

  	
   

  	
  $

  	
  90,123.70

  	
   

  



 


TENANT
COVENANTS AND AGREES WITH LANDLORD AS FOLLOWS:


 


1.             Tenant shall pay said
rent and each installment of Annual Rent thereof as and when due without setoff
or deduction. Installments of Annual Rent and Additional Rent (as defined in
paragraph 4 hereof) shall become due on the earlier of (i) 30 days after Tenant
gives Landlord written notice of substantial completion of the Tenant
Improvements set forth in Exhibit B hereto or (ii) August 1, 2004


 


	
   

  	
   

  	
  mm

  	
  2/27/04

  
	
   

  	
  [SEAL]

  	
   

  	
   

  



 


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(hereafter, the “Rent Commencement Date”). No
rent shall be due or payable prior to the Rent Commencement Date.


 


RENTAL
ESCALATION


 


2.             Beginning
with the first anniversary of the Rent Commencement Date and on each annualanniversary hereafter throughout the
remainder of the lease and renewal term if any, the Annual Rent shall be
increased by an amount equal to three percent
(3%) of the previous year’s rent, which sum shall be payable to
Landlord in equal monthly installments in advance as set forth herein.


 


USE


 


3.             Tenant
shall use and occupy the Premises solely for the following purposes:


Premises shall be used and
occupied by Tenant only as a Biological Specimen Repository, Reagent
Repository, Biotechnology Repository, Biotechnology and Clinical Testing
Laboratory and life science product manufacturing facility, with ancillary
offices.


 


ADDITIONAL RENT


 


4.             All sums of money other than Annual Rent
required to be paid by Tenant to Landlord pursuant to the terms of this Lease, unless otherwise specified herein,
shall be considered additional rent and shall be collectible by Landlord as
additional rent (herein called “Additional Rent”), in accordance with the terms
of this Lease.


 


“Tenant’s Pro Rata Share” shall mean the same percentage that the gross
square foot area of Tenant’s Premises bears to the gross square foot area of
all leasable floor area within the building in which the Premises is located
(the “Building”). Landlord shall notify Tenant of any change in “Tenant’s Pro
Rata Share”. Tenant’s Pro Rata Share is equal to (86.6%).


 


A. UTILITIES:


 


Tenant shall apply for and pay all costs of electricity, gas, telephone
and other utilities used or consumed on the Premises, together with all taxes,
levies or other charges on such utilities. Tenant agrees to pay as Additional
Rent, Tenant’s Pro Rata Share (86.6%)
of the water and sewer service charges chargeable to the total building in
which the Premises are located. However, if in Landlord’s  reasonable judgment, the water and sewer
charges for the Premises are substantially higher than normal due to Tenant’s
water usage, then Tenant agrees that it will, upon written notice from
Landlord, install a water meter at Tenant’s
Expense and thereafter pay all water charges for the Premises based on such
meter readings. Landlord represents and warrants that the supply of electrical
power initially available to the Tenant shall be a minimum of 800 amps. If the
foregoing amount of power is insufficient to adequately meet Tenant’s buildout
requirements for its use and occupancy, Tenant shall have the right to procure
sufficient supplemental power to the Premises.


 


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B. TAXES


 


Tenant shall pay to the Landlord, as Additional Rent, Tenant’s Pro Rata
Share (86.6%) of the Real Estate
Taxes that may be levied or assessed by lawful taxing authorities against the
land, buildings and improvements on the property of which the Premises is a
part. If this Lease shall be in effect for less than a full fiscal year, Tenant
shall pay a proportionate share of the increased taxes based upon the number of
months that this Lease is in effect. Said taxes shall include, but not by way
of limitation, all paving taxes, and any and all benefits or assessments which
may be levied on the Premises hereby leased but shall not include the United
States Income Tax, or any State or other income tax upon the income or rent
payable hereunder. Landlord agrees to appeal the taxes upon  Tenant’s written request, and Tenant shall be
entitled to Tenant’s Pro Rata Share of any refund received by Landlord (less
Tenant’s Pro Rata Share of Landlord’s appeal costs). If any refund attributable
to the Lease term is received after Lease termination, Landlord will forward
Tenant’s Pro Rata Share to Tenant; this obligation shall survive termination of
the Lease.


 


C. COMMON AREA EXPENSES


 


For each full or partial calendar year during the term of the Lease,
Tenant shall pay to Landlord, as Additional Rent. Tenant’s Pro Rata Share (86.6%) of the “Common Area Expenses”. For
the purposes of this section, Common Area Expenses shall be defined as one
hundred percent (100%) of all reasonable costs and expenses incurred by or on
behalf of Landlord in each calendar year in operating, maintaining, and
repairing (which includes replacements, additions, and alterations) of common
areas of the Building. These include, without limitation, a) the cost of
maintaining and repairing all service pipes, electric, gas and water lines and
sewer mains leading to and from the Premises; b) all costs incurred in
painting, resurfacing, and landscaping; c) all costs for repairs and
improvements, line painting and striping, lighting, removal of snow, grass
cutting, cleaning of parking areas; d) all costs incurred in maintaining,
repairing and replacing the paving, parking areas, curbs, gutters, sidewalks,
and steps; e) all costs for repairs and improvements to roof and exterior
walls; and f) management fees, overhead and expenses directly attributable to
management of the Building. Landlord shall cap increases on all controllable
expenses with the exception of snow removal at five (5%) percent per year
cumulative.


 


Exclusions  to the above: a)
commissions or advertising costs; b) costs of sale, financing, and refinancing;
c) legal and accounting expenses not specifically for Tenant; d) costs of
enforcement of Leases; e) ground rents; f) fines or penalties of any kind or
nature, unless directly resulting from a


 


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default by Lease; g) costs of any services
provided to any other Tenant in the project, and not made available to Tenant
on the same basis; h) damage and repairs necessitated by the negligence or
willful misconduct of the Landlord; I) any amount paid to the Landlord, the
management agent or any affiliate of either of them, to the extent in excess of
that negotiable on an arm’s length basis: j) the cost of repairs or work to the
extent reimbursed or paid by insurance proceeds or covered by warranty and (k)
any expense which under generally accepted accounting principals, should be
capitalized, except as specifically permitted.


 


D. INSURANCE


 


Tenant shall not do anything in or about the Premises that will
contravene or affect any policy of insurance against loss by fire or other
hazards, including, but not limited to, public liability now existing or which
Landlord may hereafter place thereon, or that will prevent Landlord from
procuring such policies in companies acceptable to Landlord. Tenant and
Landlord will use commercially reasonable efforts (and Landlord will require
that any other tenant(s) in the Building will use commercially reasonable
efforts) to obtain the greatest possible reduction in the insurance rates on
the Premises hereby leased, or for the Building. Tenant further agrees to pay,
as Additional Rent:


 


1)             Tenant’s Pro Rata Share (86.6%) of the premium of any insurance on
the Premises or for the Building and /or property of which the Premises hereby
leased are apart;


 


2)             any increase in premium on the amount of such
Insurance that may be carried by
Landlord on all or any part of the Premises, Building or property resulting
from the activities carried on by Tenant in or at the Premises, regardless of
whether Landlord has consented to the same.


 


Landlord shall notify Tenant from time to time of the amounts which
Landlord estimates will be payable by Tenant for Tenant’s Pro Rata Share of
Utilities, Taxes, Common Area Expenses and Insurance herein set forth and
Tenant shall pay such amounts to Landlord in equal monthly installments in
advance on or before the first day of each month.


 


Within a reasonable period of time following the end of each calendar
year, or fiscal year (with regard to taxes) Landlord shall submit to Tenant a
line-item statement (the “Expense Statement”) setting forth Landlord’s actual
costs for the Utilities, Taxes, Common Area Expenses and Insurance to be paid
by Tenant with respect to such year and Tenant’s Pro Rata Share thereof; the amount
paid by Tenant, and the amount of the resulting balance due or overpayment.
Landlord’s Expense Statement shall be conclusive and binding upon Tenant
unless, within 90 days after receipt, Tenant notifies Landlord that it disputes
the correctness of the Expense Statement, specifying the element of the Expense
Statement which is claimed to be incorrect. Pending determination of such
dispute by agreement or otherwise, Tenant shall pay Tenant’s Pro Rata Share of
the disputed expense in accordance with the disputed Expense Statement and such
payment shall be without prejudice to either


 


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party’s position. Should the dispute be
determined in Tenant’s favor, any overpayment will be refunded to Tenant within
30 days. If Landlord’s Expense Statement is demonstrated to be correct or
within 5% of the correct amount, Tenant shall pay all fees incurred by Landlord
(including Landlord’s accountants’  and attorneys’ fees, if any) by virtue of such dispute, if Landlord’s
statement is more than 5% greater than the correct amount, Landlord shall pay
all fees incurred by Tenant (including Tenant’s accountants’ and attorney’s
fees, if any) by virtue of such dispute.


 


Notwithstanding the forgoing provisions of the above paragraph,
Landlord shall have the right to require Tenant to pay in arrears Tenant’s Pro
Rata Share of Utilities, Taxes, Common Area Expenses and Insurance in quarterly
or semi-annual payments rather than on a monthly basis as provided above.


 


MUNICIPAL REGULATING


 


5.             Tenant
shall observe, comply with and execute at its expense, all laws, orders, rules,requirements, and regulations of the
United States, State, City or County of the said State, in which the Premises
are located, and of any and all governmental authorities or agencies and of any
board of fire underwriters or other similar organization, respecting the
Premises and the manner in which the Premises are or should be used by Tenant.


 


ASSIGNMENT AND SUBLET


 


6.             Tenant
shall not assign this Lease, in whole or in part, or sublet the Premises, or
any part or portion thereof, or
grant any license or concession for any part of the Premises, without the prior
written consent of Landlord, said consent shall not be unreasonably withheld,
conditioned or delayed. If such assignment or subletting is permitted, Tenant
shall not be relieved from any liability whatsoever under this Lease. Landlord
shall be entitled to fifty percent (50%)
of the “Net Profits” (as hereinafter defined) derived from any sublease and/or
assignment (other than a sublease or assignment to a successor, partner,
affiliate or subsidiary, as provided herein). “Net Profits” shall refer to the
excess of rents and other amounts collected with respect to any assignee,
subtenant or occupant of all or a portion of the Premises, over the sum of (i)
rent payable with respect to the Premises or the applicable portion thereof,
under this Lease plus (ii)  reasonable
legal costs, advertising, leasing commissions, rental abatements, and the value
of fit up concessions, to the extent directly related to the sublease or
assignment, amortized over the term of the sublease or assignment. Except as
otherwise provided herein, no option rights can be assigned or transferred by
Tenant to an assignee or subtenant. Any sublet or assignment of this Lease will
be assessed with processing fees to be paid for by Tenant as Additional Rent.
Such one time fee shall not exceed $250,00.


 


Landlord’s permission shall not be required for any assignment or
sublet to any of Tenant’s successors, partners, affiliates or subsidiaries
resulting from any merger, stock acquisition, asset


 


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acquisition or consolidation. Tenant shall
have the right to retain one hundred percent (100%) of all profits from any
sublease or assignment to a related successor, partner, affiliate or
subsidiary.


 


INSURANCE


 


7.             Tenant covenants and agrees that, from and
after the earlier of the commencement of this Lease or the date of delivery of the Premises from Landlord to
Tenant, Tenant will carry and maintain at its sole cost and expense and in the
amounts specified, a commercial general liability insurance policy covering the
Premises and Tenant’s use thereof against claims for bodily injury or death and
property damage occurring upon, in or about the Premises, such insurance to
afford protection to the limit of not less than Two Million Dollars
($2,000,000) arising out of any one occurrence. The insurance coverage required
under this Section 7 shall, in addition, extend to any liability of Tenant
arising out of Tenant’s indemnities hereinafter provided, as well as
independent contractor’s liability and contractual liability. If such insurance
contains an annual aggregate limit, the annual aggregate limit may not be diminished
by claims occurring at locations other than the Premises.


 


All policies of insurance to be provided by Tenant shall be issued in a
form acceptable to Landlord by insurance companies with general policyholder’s
rating of not less A-XI as rated in the most current available “Best’s
Insurance Reports,” and qualified to do business in the state in which the
Premises are located.  Each such policy
shall be issued in the names of Landlord and Tenant and shall be for the mutual
and joint benefit and protection of each of said parties.  Executed copies of each such policy of
insurance or certificate thereof shall be delivered to Landlord within ten (10)
days after the earlier of the commencement of this Lease or delivery of
possession of the Premises to Tenant and thereafter at least fifteen (15) days
prior to the expiration of each such policy. 
As often as any such policy shall expire or terminate, renewal or
additional policies shall be procured and maintained by Tenant in like manner
and to like extent. All such policies of insurance shall contain a  provision that the company writing said
policy will give to Landlord at least thirty (30) days’ notice in writing in
advance of any cancellations, or lapse, or the effective date of any reduction
in the amounts of insurance.   In the
event Tenant shall fail to promptly furnish any insurance herein required,
Landlord may effect the same and Tenant shall promptly reimburse Landlord upon
demand as Additional Rent, the premium so paid by Landlord.  Such commercial general liability policy
shall contain a provision that Landlord shall nevertheless be entitled to
recover under said policies for any loss occasioned to it, its servants, agents
and employees by reason of the negligence of Tenant or any other named insured.  Any insurance provided for may be affected
by a policy or policies of blanket insurance, covering additional items or
locations; provided, however, that (i) Landlord shall be named as an additional
insured thereunder as its interests may appear; (ii) the coverage afforded
Landlord will not be reduced or diminished by


 


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reason of the use of such blanket policy of
insurance. Any Insurance policies herein required to be procured by Tenant and
all insurance policies procured by Landlord in respect of the Premises and/or
the Building, shall contain an express waiver of any right of subrogation by
the insurance company against the Landlord, Tenant and all other tenants or
occupants of space in the building.


 


ALTERATIONS


 


8.             a)             Tenant shall make no
alterations in addition to original improvements existing in the Premises at
the time of occupancy without the prior written consent of Landlord, which
consent will not be unreasonably withheld, conditioned or delayed. Landlord’s
consent shall not be required for any interior, non-structural cosmetic
alterations.


 


b)            If Tenant shall desire to make any such
alterations, plans for the same shall first be submitted to Landlord for
approval, and upon approval, the same shall be performed by Tenant at its own
expense. Tenant agrees that all such work shall be done in a  good and workmanlike manner, that the
structural integrity of the Building shall not be impaired, that no liens shall
attach to the Building by reason thereof (other than liens which are
discharged or bonded by Tenant within 15 days from the filing thereof), and that all alterations shall be in accordance with
all applicable codes. Tenant agrees to obtain at Tenant’s expense all permits
pertaining to the alterations. Tenant also agrees to obtain, prior to
commencing to make such alterations, and to keep in full force and effect at
all time while such alterations are being made, all at Tenant’s sole cost and
expense, such policies of insurance pertaining to such alterations and/or to
the making thereof as Landlord reasonably may request or require Tenant to
obtain, including, but not limited to, public liability and property damage
insurance, and to furnish Landlord evidence satisfactory to Landlord of the
existence of such insurance prior to Tenant’s beginning to make such
alterations.


 


c)             Any such alterations shall become the
property of Landlord as soon as they are affixed to the Premises and all
rights, title and interest therein of Tenant shall immediately cease, unless
otherwise agreed to by Landlord in writing. Landlord shall elect in writing, at
the time of consent, whether all or part of any alterations installed by Tenant
shell remain, or be removed by Tenant, at its own expense, at the expiration of
its tenancy.  Landlord shall have the
sole right to collect any insurance for any damage of any kind caused by any
alterations or improvements placed upon the Premises by Tenant that become the
property of Landlord as provided herein. 
If the making of any such alterations, or the obtaining of any permits
therefore shall directly or indirectly result in a franchise, minor privilege
or any other tax or increase in tax, assessment or increase in assessment, such
franchise, privilege, tax or assessment shall be paid, immediately upon its
levy and subsequent levy, by Tenant.


 


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d)            Unless Landlord shall consent in writing that
all or part of any alterations installed by Tenant shall remain, the Premises
shall be restored to their original condition by Tenant, at its own expense,
before the expiration of its tenancy.


 


e)             Costs of alterations or modifications (in
addition to the improvements as described
herein in Section 34) Tenant requests Landlord to make on Tenant’s behalf
during the term of this Lease
shall be due and payable as Additional Rent.


 


MAINTENANCE


 


9.             a)             Tenant shall, during the term of this Lease,
keep the Premises and appurtenances
(including, but not limited to, interior and exterior windows, interior and
exterior doors, interior plumbing, heating, ventilating and air conditioning
(HVAC), interior electrical or replacement works thereof) in good order and
condition and will make all necessary repairs or replacement thereof. Landlord
does, however, give a ninety (90) day warranty on all of the above-mentioned
items if installed by Landlord. This warranty does not include the required
annual maintenance contract on the HVAC unit(s) as described below. Tenant will
be responsible for all exterminating services, except termites, required in the
Premises. If Tenant does not make necessary repairs within fifteen (15) days
after receiving written notice from Landlord of the need to make a repair.
Landlord may proceed to make said repair and the cost of said repair will
become part of and in addition to the next due monthly rental. Any repair made
by Landlord at Tenant’s request to Tenant’s Premises shall be invoiced to
Tenant and shall become due and payable as Additional Rent.


 


b)            Tenant agrees to furnish to Landlord, at the
expense of Tenant, prior to occupancy, a copy of an executed and paid for
annual maintenance contract on all heating and air conditioning (HVAC)
equipment with a reputable company reasonably acceptable to Landlord and said
contract will be kept in effect during the term of the Lease at the expense of
Tenant. Should Tenant not provide a satisfactory HVAC Maintenance contract to
Landlord prior to occupancy, Tenant shall be provided a contract through  MIE Properties, Inc. Billings for this
contract shall become due and payable upon receipt of invoice and shall be
considered Additional Rent.


 


c)             Landlord shall make all necessary structural
repairs to the exterior masonry walls and roof of the Premises, after being
notified in writing of the need for such repairs, provided the necessity for
such repairs was not caused by the negligence or misuse of Tenant, its
employees, agents or customers.


 


d)            Tenant shall, at the expiration of the term
or at the sooner termination thereof by forfeiture or otherwise, deliver up the
Premises in the same good order and condition as they were at the beginning of
the tenancy, reasonable wear and tear excepted.


 


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DEFAULT


 


10.           In the event Tenant shall fail to pay said
Installments of Annual Rent, Additional Rent, or any other sum required by this
Lease to be paid by Tenant and such failure shall continue for five (5) days
after written notice thereof to Tenant, Landlord shall have along with any and
all other legal remedies the immediate right to make distress therefore, and
upon such distress, in Landlord’s discretion, this tenancy shall terminate.


 


In the event Tenant shall
fail to comply with any of the provisions, covenants, or  conditions of this Lease, on its part to be kept
and performed, and such default shall continue for a period of thirty (30) days
after written notice thereof shall have been given to Tenant by Landlord
(provided that such 30-day period shall be extended for such additional period
of time as may reasonably be necessary to cure such default, if such default,
by its nature, cannot be cured within such period, and provided, further, that
Tenant commences to cure such default within such 30-day period and is, at all
times thereafter, in the process of diligently curing the same), and/or if
Tenant shall fail to pay said Annual Rent, Additional Rent or any other sum
required by the terms of this Lease to be paid by Tenant, then, upon the
happening of any such event, and in addition to any and all other remedies that
may thereby accrue to Landlord, Landlord may do the following:


 


A)           Landlord’s Election to Retake Possession
Without Termination of Lease


 


Landlord may retake
possession of the Premises, without being deemed to have  accepted a surrender thereof, and without
terminating this Lease. If Landlord retakes possession of the Premises, or if
this Lease is terminated as a result of Tenant’s default and vacated by Tenant,
Landlord shall take commercially reasonable action to relet the Premises in
order to mitigate its damages, provided that that in attempting to mitigate its
damages, as aforesaid, (i) Landlord may, in its sole, absolute and subjective
discretion, relet the Premises, or any portion thereof, for a shorter or longer
period of time than the term of this Lease and may make any reasonable repairs
or alterations necessary to relet the Premises, or any portion thereof
(provided the cost of such repairs and alterations do not unreasonably exceed
the quality of the initial Tenant Alterations), (ii) the terms of any reletting
may include a reasonable amount of free rent, and (iii) if other space in the
Building reasonably equivalent to the Premises is vacant at the time of the
termination of the Lease as a  result
of Tenant’s default, or subsequently becomes vacant before Landlord has relet
the Premises, or any portion thereof,
Landlord shall not be obligated to relet the Premises, or any portion thereof,
before letting such other vacant
space. If the rent received from such reletting does not at least equal the
rent and other sums payable by
Tenant hereunder. Tenant shall pay and satisfy the deficiency between the
amount of rent and other sums so provided in this Lease and the rent received
through reletting the Premises; and, in addition, Tenant shall pay reasonable
expenses in connection with any such reletting, including,


 


9

















 


but not limited to, the cost of renovating,
altering, and decorating for any occupancy, leasing commissions paid to any
real estate broker or agent, and attorney’s fees incurred.


 


B)            Landlord’s
Election to Terminate Lease


 


Landlord may terminate the Lease and forthwith repossess the Premises and be entitled to recover
as damages a sum of money equal to the total of the following amounts:


 


1)             any
unpaid rent or any other outstanding monetary obligation of Tenant to Landlord
under the Lease as of the date of termination;


 


2)             at
the time of Landlord’s reletting of the Premises as set forth in clause (A) above, the balance of the rent and other
sums payable by Tenant through the time of such reletting; provided that if
Landlord has not reletted the Premises within one year of Lease termination
despite commercially reasonable efforts to do so. Landlord shall be entitled to
recover from Tenant the entire balance, discounted to net present value, of
rent and other sums payable by Tenant for the remainder of the Lease term.


 


3)             damages
for the wrongful withholding of the Premises by Tenant


 


4)             all
reasonable legal expenses, including attorney’s fees, expert and witness fees,
court costs and other costs incurred in exercising its rights under the Lease;


 


5)             all
costs incurred in recovering the Premises, restoring the Premises to good order
and condition, and all commissions incurred by Landlord in reletting the
Premises; and


 


6)             any
other reasonable amount necessary to compensate Landlord for all detriment
caused by Tenant’s default.


 


DAMAGE


 


11.           In the case of the total destruction of the Premises by fire, other
casualties, the elements or other cause, or of such damage thereto as shall
render the same totally unfit for occupancy by Tenant for more than sixty (60)
days, this Lease, upon surrender and delivery to Landlord of the Premises,
together with the payment of the Annual Rent and Additional Rent to the date of
such occurrence, shall terminate and be at an end. If the Premises are rendered
partly untenantable by any cause mentioned in the preceding sentence, Landlord
shall, at its own expense, restore the Premises with all reasonable diligence, and
the Annual Rent and Additional Rent shall be abated proportionately for the
period of said partial untenantability and until the Premises shall have been
fully restored by Landlord.


 


BANKRUPTCY


 


12.           In the event of the appointment of a receiver or trustee for Tenant by
any court, Federal and State, in any legal proceedings under any provisions of
the U.S. Bankruptcy Code, if the


 


10

















 


appointment of such receiver or such trustee is not vacated within
sixty (60) days, or if said Tenant be adjudicated bankrupt or insolvent, or
shall make an assignment for the benefit of its creditors, then and in any of
said events. Landlord may, at its option, terminate this tenancy by ten (10)
days written notice, and re-enter upon the Premises.


 


POSSESSION/BENEFICIAL OCCUPANCY


 


13.           Landlord  covenants 
and agrees that possession of the 
Premises  shall  be given 
to Tenant within five (5) days of the execution of this Lease by
Landlord and that the Premises shall be in compliance with all applicable laws,
codes, rules and regulations, including, without limitation, the Americans With
Disabilities Act.  If Tenant occupies
any portion of the Premises prior to lender of possession thereof by Landlord,
such occupancy shall be deemed to be beneficial occupancy and a proportionate
share of the rent shall be due and payable as to that portion of the Premises
so occupied, immediately upon Tenant’s occupancy.  Such occupancy by Tenant and rent thereby due shall not depend on
official governmental approval of such occupancy, state of completion of
building, availability or connection of utilities and services as but not
limited to sewer, water, gas, oil, or electric.  No rent credit shall be given because of lack of utilities or
services  unless caused  by the negligence of Landlord.


 


SIGNS, ETC.


 


14.           Tenant covenants and agrees that;


 


a)             Except
as permitted in paragraph 14(d) below, Tenant shall not place or permit any
signs, lights, awnings or poles on or about the exterior of the Premises
without the prior permission, in writing, of Landlord and in the event such
consent is given, Tenant agrees to pay any minor privileges or other tax.


 


b)            Landlord,
at Landlord’s option, may immediately remove and dispose of any of the
unauthorized aforementioned items at the expense of Tenant and said cost shall
become part of and in addition to the next due monthly rental, as Additional
Rent. Tenant further covenants and agrees that it will not paint or make any
changes in or on the outside of the Premises without the written permission of
Landlord.  Tenant agrees that it will
not do anything on the outside of the Premises to change the uniform
architecture, paint or appearance of said building, without the written consent
of Landlord.


 


c)             Landlord
shall have the right to place a “For Rent” sign on any portion of the Premises
for ninety (90) days prior to termination of this Lease and to place a “For
Sale” sign thereon at any time.


 


d)            Landlord
shall allow Tenant to install exterior signs on the Building’s existing sign
panels and a monument sign in front of the building with Tenant’s logo.
Landlord shall use reasonable


 


11

















 


best efforts to obtain any third-party
consents, waivers or approvals (including, without limitation, a waiver of the
Riverside Technology Park recorded covenants) required for Tenant to display
its color logo on the monument sign. Tenant shall use Landlord standards and
specifications for construction of signs and locations to be approved by
Landlord, which approval shall not be unreasonably withheld. Tenant shall be
responsible for all costs associated with all signs.


 


EXTERIOR OF PREMISES


 


15.           a)  Tenant further covenants and
agrees not to put any items on the sidewalk or parking lot in the front, rear,
or sides of said building or block said sidewalk, and not to do anything that
directly or indirectly takes away any of the rights of ingress or egress of
light from any other tenant of Landlord or do anything which will, in any way,
change the uniform and general design of any property of Landlord of which the
Premises hereby leased shall constitute a part. Tenant will also keep the steps
to the Premises free and clear of ice, snow and debris.


 


b)  Notwithstanding the foregoing, Tenant shall be permitted to place
the following items outside in the immediate vicinity of the Building in
locations mutually agreeable to Landlord and Tenant: two flammable storage
units (approximately 14' X 6" and 20' X 10'); six generators; three diesel
fuel tanks, and two bulk tanks. In addition, if requested by Tenant, Landlord
will use reasonable best efforts to obtain any third-party consents, waivers or
approvals (including, without limitation, a  waiver
of the Riverside Technology Park recorded covenants) necessary for the
installation of a portable biosafety level-3 laboratory (trailer); storage
trailer (for bulk freezer relocations); and walk-in chambers (refrigerator,
freezer and/or environmental test chamber). 


 


WATER DAMAGE


 


16.           Tenant covenants and agrees that Landlord shall not be held responsible
for and Landlord is hereby released and relieved from any liability by reason
of or resulting from damage or injury to person or property of Tenant or of
anyone else, directly or indirectly caused by (a) dampness or water in any part
of the Premises (b) any leak or break in any part of the Premises in the pipes
of the plumbing or heating works thereof, unless the damage is due to
Landlord’s or its employees’, agents’ or servants’ negligence.


 


LIABILITY


 


17.           Landlord shall not be liable to Tenant for any loss or injury to Tenant
or to any other person or to the property of Tenant or of any other person
unless such loss or damage shall be caused by or result from a negligent act or
omission on the part of Landlord or any of its agents, servants, or employees.
Tenant shall, and does hereby, indemnify and hold harmless Landlord and any
other parties in interest from and against any and all liabilities, fines,
claims, damages and actions, costs and expenses of any kind or nature
(including reasonable attorneys’ fees) (i) relating to or arising from the


 


12

















 


use and occupancy of the Premises; (ii) due to
or arising out of any mechanic’s lien filed against the building, or any part
thereof, for labor performed or for materials furnished or claimed to be
furnished to Tenant, or (iii) due to or arising out of any breach, violation or
nonperformance of  any covenant,
condition or agreement in this Lease set forth and contained on the part of
Tenant to be fulfilled, kept, observed or performed.


 


RIGHT OF ENTRY


 


18.           It is understood and agreed that Landlord, and its agents, servants, and
employees, including any builder or contractor employed by Landlord, shall
have, and Tenant hereby gives them and each of them, the absolute, and
unconditional right, license and permission, at any and all reasonable times,
and for any reasonable purpose whatsoever, to enter through, across or upon the
Premises or any part thereof, and, at the option of Landlord, to make such
reasonable repairs to or changes in the Premises as Landlord may deem necessary
or proper. In connection with any non-emergency entry, Landlord shall provide
Tenant with 24 hours prior notice (which may be oral) and shall use
commercially reasonable efforts to minimize the disruption to Tenant’s use of
the Premises. Tenant agrees Landlord and its agents and assigns have the
unconditional right to show the Premises to (i) prospective purchasers at any
reasonable time during the Lease term and (ii) to prospective tenants at any
reasonable time during the last six months of the Lease term.


 


EXPIRATION


 


19.           It is agreed that the term of  this
Lease expires on July 31, 2015,
without the necessity of any notice by or to any of the parties hereto, subject
to Tenant’s option to extend pursuant to Paragraph 37 hereof.  In the event Tenant shall occupy the
Premises after such expiration, it is understood that, in the absence of any
written agreement to the contrary, said Tenant shall hold the Premises as a
“Tenant from month to month”, subject to all the other terms and conditions of
this Lease, at 150% the highest
monthly Installments of Annual Rent reserved inthis Lease; provided that Landlord shall, upon such expiration, be
entitled to the benefit of all public general or public local laws relating to
the speedy recovery of the possession and lands and tenements held over by
Tenant that may be now in force or may hereafter be enacted.


 


Prior to Lease expiration,
Tenant agrees to schedule an inspection with Landlord to confirm that the
Premises will be in proper order at expiration, including, but not limited to,
lighting, mechanical, electrical and plumbing systems. 


 


CONDEMNATION


 


20.           It is agreed that in the event condemnation proceedings are  instituted against the Premises and
possession taken by the condemning authority, then this Lease shall terminate
at the date possession is taken and Tenant shall not be entitled to recover any
part of the award.


 


13

















 


If the entire Premises, or
any portion of the Building required for reasonable access to, or the
reasonable use of, the Premises, are taken by eminent domain, this Lease shall
automatically end on the earlier of:


 


(i)            The date title vests; or


 


(ii)           The date Tenant is dispossessed by the condemning authority.


 


If the taking of a part of the Premises materially
interferes with Tenant’s ability to continue its business operations in substantially the same manner and
space, then Tenant may end this Lease on the earlier of:


 


(i)            The
date when title vests;


 


(ii)           The date Tenant is dispossessed by the condemning authority: or 


 


(iii)          30 days following notice to Tenant of the date when vesting or
dispossession is to occur.


 


If there is a partial taking
and this Lease continues, then the Lease shall end as to the part of the
Premises taken and Annual Rent and Additional Rent shall abate in proportion to
the part of the Premises taken and Tenant’s Pro Rata Share shall be equitably
reduced.


 


If this Lease is not
terminated, then Landlord, at its expense, shall promptly  repair and restore the Premises to the
condition that existed immediately before the taking, except for the part
taken, in order to render the Premises a complete architectural unit, but only
to the extent of the:


 


(i)            Condemnation award received for the damage;
and


 


(ii)           The Initial Leasehold improvements.


 


If part or all of the
Premises are condemned for 60 days or less (a “Temporary Condemnation”), this
Lease shall remain in effect, subject to the terms of this Paragraph 20. If
part or  all of the
Premises are condemned for a period of time exceeding 60 days. Tenant shall
have the right, at its sole election, to terminate this Lease. If Tenant elects
to terminate this Lease, notice of its election shall be given to Landlord within 15 days following the
sixtieth day after such condemnation and this Lease shall end on the date
specified in the termination notice, which date shall be at least 30, but not
more than 45, days after the date notice is given. In the event of a Temporary
Condemnation or in the event Tenant does not elect to terminate this Lease
following a condemnation for a period of time exceeding 60 days, Rent and
Tenant’s obligations for the part of the Premises taken shall abate in
proportion to the part of the Premises that Tenant is unable to use in the
conduct of its business, such abatement to begin on the date the Tenant
determines it is unable to use the portion of the Premises so taken in the
conduct of its business until the date Tenant determines it is again able to
use the portion


 


14

















 


of the Premises so taken in the conduct of its
business, and Landlord shall receive the entire award attributable to such
condemnation.


 


SUBORDINATION


 


21.           It is agreed that Landlord shall have the
right to place a mortgage or deed of trust on the Premises and this Lease shall
be subordinate to any such mortgage or deed of trust whether presently existing
or hereafter placed on the Premises, and Tenant agrees to execute any
reasonable documents assisting the effectuating of said subordination. Landlord
shall obtain from any such lender a non-disturbance agreement, in recordable
form, providing that in the event of foreclosure or other right asserted
pursuant to the respective loan documents. Tenant shall be permitted to remain
in quiet and peaceful possession of the Premises and this Lease and the rights
of Tenant hereunder shall continue in full force and effect and shall not be
terminated or disturbed except in accordance with the provisions of this
Lease.   Furthermore, if any person or
entity shall succeed to all or part of Landlord’s interest in the Premises,
whether by purchase, foreclosure, deed in lieu of foreclosure, power of sale,
termination of lease, or otherwise, Tenant shall automatically attorn to such
successor in interest, which attornment shall be self operative and effective
upon the signing of this Lease, and Tenant shall execute such other agreement
in confirmation of such attornment as such successor in interest shall
reasonably request.


 


NOTICE


 


22.           Any written notices required by this Lease
shall be deemed sufficiently given, if hand delivered, or sent via first class U.S. mail or by overnight courier
service.


 


Any notice required by this Lease is to be sent to Landlord at.


 


5104 Pegasus Court, Suite A


 


Frederick. Maryland 21704


 


Any notice required by this
Lease is to be sent to Tenant at:


 


Attn:  Mark Manak


 


217 Perry Parkway


 


Gaithersburg. MD 20832


 


With a copy to:


 


Kevin W. Quinlan


 


Boston Biomedica, Inc.


 


375 West Street


 


West Bridgewater, MA 02379


 


15

















 


REMEDIES NOT EXCLUSIVE


 


23.           No remedy conferred upon Landlord shall be
considered exclusive of any other remedy, but shall be in addition to every
other remedy available to Landlord under this Lease or as a matter of law.
Every remedy available to Landlord may be exercised concurrently or from time
to time, as often as the occasion may arise. Tenant hereby waives any and all
rights which it may have to request a jury trial in any proceeding at law or in
equity in any court of competent jurisdiction.


 


NON-WAIVER


 


24.           It is agreed that the failure of Landlord to
insist in any one or more instances upon a strict performance of any covenant
of this Lease or to exercise any right herein contained shall not be construed
as a waiver or relinquishment for the future of such covenant or right, but the
same shall remain in full force and effect, unless the contrary is expressed in
writing by Landlord.   The receipt of
Annual Rent or Additional Rent by Landlord, with knowledge of any breach of
this Lease by Tenant or of any default on the part of Tenant hereunder, shall
not be deemed to be a waiver of any provisions of this Lease.  Neither acceptance of the keys nor any other
act or thing done by Landlord or any agent or employee of Landlord shall be
deemed to be an acceptance of a surrender of the Premises, excepting only an
agreement in writing by Landlord accepting or agreeing to accept such
surrender.


 


SECURITY
DEPOSIT AND FINANCIAL STATEMENTS


 


25.           A security deposit of $40,261.00 is required to accompany this
Lease, when submitted for approval by
Landlord, subject to all the conditions of the security deposit agreement
attached. If this Lease is not approved by Landlord within thirty (30) days of
its submission to Landlord, Tenant’s security deposit will be refunded in full.
On the first anniversary of the Rent Commencement Date, Tenant shall deliver an
additional security deposit to Landlord in the amount of $29,072.32; failure to
deliver such additional security deposit shall be an event of default under
this Lease. Landlord shall have the right to require annual financial
statements for Tenant, which Landlord agrees not to disclose to any other
person (other than Landlord’s accountants, attorneys and other representatives,
each of whom shall be advised of the confidential nature of such information).


 


FINAL AGREEMENT


 


26.           This Lease contains the
final and entire agreement between the parties hereto, and neither they nor
their agents shall be bound by any terms, conditions or representations not
herein written.


 


LEGAL EXPENSE


 


27.           In the event, to enforce the terms of this
Lease, either party files legal action against the other, and is successful in
said action, the losing party agrees to pay all reasonable expenses to the
prevailing party, including the attorney’s fees incident to said legal
action.  In the event that Landlord is


 


16

















 


successful in any legal action filed against
Tenant, Landlord’s expenses incident to said legal action shall be due as
Additional Rent.


 


LAND


 


28.           It is agreed that the Premises is the building
area occupied by Tenant and only the land under that area.


 


29.          Intentionally Deleted.


 


ENVIRONMENTAL REQUIREMENTS


 


30.           Tenant hereby represents and warrants to
Landlord that no materials will be located by Tenant on the Premises which,
under federal, state, or local law, statute, ordinance or regulations; or court
or administrative order or decree; or private agreement (hereinafter
collectively known as “Environmental Requirements”), require special handling
in collection, storage, treatment, or disposal (collectively, “Regulated
Materials”). Notwithstanding the foregoing, Landlord acknowledges and agrees
that the repository and/or laboratory may contain material that is biohazardous
and infectious to humans. Landlord further agrees and acknowledges that Tenant
may store and use Regulated Materials used in the ordinary course of business
(e.g., cleaning fluids, photocopier toner and the like), provided same are
stored, used and disposed of in accordance with all applicable Environmental
Requirements.


 


Landlord covenants that there are no Regulated Materials present in, on
or under the Premises, the Building and the land thereunder and that the
Premises, the Building and the land are in compliance  with all Environmental Requirements as of the
date hereof. Landlord shall be responsible for the identification and removal
from the Building and the property, within thirty (30) days after written
notice thereof, of any and all Regulated Materials which are not placed on the
Premises or generated by the Tenant on the Premises during the normal course of
business..


 


Tenant hereby covenants and agrees that if at any time it is determined
that there are Regulated Materials placed on the Premises by Tenant. Tenant
shall, within thirty (30) days after written notice thereof, take or cause to
be taken, at its sole expense, such actions as may be necessary to comply with
all Environmental Requirements. If Tenant shall fail to take such action,
Landlord may make advances or payments towards performance or satisfaction of
the same but shall be under no obligation to do so; and all sums so advanced or
paid, including all sums advanced or paid in connection with any Judicial or
administrative investigation or proceeding relating thereto, including, without
limitation, reasonable attorney’s fees, fines, or other penalty payments, shall
be at once repayable by Tenant as Additional Rent and shall bear interest at
the rate of three percent (3%) per annum above the Prime Rate from time to time
as published by the Wall street Journal, from the date


 


17

















 


the same shall become due and payable until
the date paid.  Failure of Tenant to
comply with all environmental requirements shall constitute and be a default
under this Lease.


 


SEVERABILITY


 


31.           In case any one or more of the provisions
contained in this Lease shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Lease, but this Lease shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein.


 


LATE CHARGE


 


32.           If Tenant shall fail to pay when due, the
Annual Rent, Additional Rent or any other sum required by the terms of this
Lease to be paid by Tenant, then, in addition to any and all other remedies
that may thereby accrue to Landlord, Tenant agrees to pay to Landlord a late
charge of five percent (5%) of the monthly account balance. The late charge on
the base rent accrues after ten (10) days of the due date and said late charges
shall be collectible as Additional Rent.


 


In the event Tenant’s rent
is received fifteen (15) days after due date, Landlord shall have option to
require the rental payment be made with a certified or cashier’s check.


 


QUIET ENJOYMENT


 


33.           Tenant, upon paying the minimum rent,
Additional Rent and other charges herein provided and observing and keeping all
of its covenants, agreements, and conditions in this Lease, shall quietly have
and enjoy the Premises during the term of this Lease without hindrance or molestation
by anyone claiming by or through Landlord; subject, however, to all exceptions,
reservations and conditions of this Lease.


 


LANDLORD’S WORK


 


34.           The Premises shall contain only the following
items at the expense of Landlord:


 


Landlord Shall provide a Tenant Improvement allowance of $1,954 800.00
subject to the terms and conditions of the Tenant Improvement agreement as
attached here to as “Exhibit B”. 


 


WINDOW COVERINGS


 


35.           Tenant shall not install any window covering
other than a one-inch horizontal mini-blind of an off-white color unless
approved in writing by Landlord.


 


PARKING


 


36.           Throughout the Lease term and any renewal
term(s), Landlord shall provide Tenant with free, common parking in the parking
area immediately adjacent to the Premises, at a ratio of 4 parking spaces per
1000 square feet leased.


 


18

















 


OPTIONS


 


37.           Provided Tenant is not then in default
hereunder, Tenant may extend the term of this Lease, as it may be amended from time to time, for two (2)  further successive periods of five
(5) years each, by notifying Landlord in writing of its intention to do so at least six (6) months prior to theexpiration of the then current term.
The annual rental for each succeeding extension shall be at a Lease rate equal
to the then prevailing fair market rental rate for renewal tenants in
comparable industrial buildings in the Frederick sub-market. If Landlord and
Tenant are unable to agree upon “market rate,” then “market rate” shall be
determined as follows: Landlord and Tenant shall each engage a real estate
agent who has at least 10 years’ experience inthe leasing of commercial property in the Frederick, Maryland area
(a “Determining Broker”). Each party shall bear the cost, if any, of its appointed
Determining Broker. If the two Determining Brokers are unable to agree upon
market rate within thirty days of their respective appointments, then the two
Determining Brokers shall choose a third Determining Broker (the “Neutral
Broker”), the cost, if any, of which shall be borne equally by Landlord and
Tenant. The two Determining Brokers engaged by Landlord and Tenant,
respectively, and the Neutral Broker shall deliver to Landlord and Tenant their
respective determinations of the fair market rental rate of the Leased Premises. The market rate for the
Leased Premises shall be the average
of the three rates determined by the Determining Brokers, and shall be binding
upon the parties commencing with the first year of the option term.


 


a.             If the option to extend the term of this
Lease is not timely exercised, the unexercised option to extend shall
automatically become null and void.


 


b.             The right to extend the term of the Lease may
be exercised only by the undersigned Tenant for its continued use and occupancy
of the Premises and only if it is in possession of the Premises and operating a
permitted use when it exercises the right. No such right shall be assignable
even though Landlord may have approved an assignment of the Lease.  However, if Tenant assigns this Lease to any
entity into which or with which Tenant merges or consolidates, or to any
purchaser of Tenant’s capital stock or substantially all of Tenant’s assets
and/or to any parent, subsidiary, or affiliated corporation, the assignee may
exercise such right to renew.


 


c.             If Tenant shall default under the Lease
beyond any applicable grace or cure period, then all unexercised rights to
extend the term of the Lease shall automatically be extinguished and become
null and void.


 


RULES AND REGULATIONS


 


38.           Tenant shall at all times comply with the
Rules and Regulations attached hereto. 
In the event of a
conflict between the Rules and Regulations and the terms of this Lease, the
terms of the


 


19

















 


Lease shall prevail. Landlord shall make a reasonable effort to enforce
the Rules and Regulations equitably against all tenants of the Property.


 


ESTOPPEL
CERTIFICATE


 


39.           Tenant shall, at any time during the term of
this Lease or any renewal thereof, upon request of Landlord, execute,
acknowledge, and deliver to Landlord or its designee, a statement in writing,
certifying that this Lease is unmodified and in full force and effect if such
is the fact that the same is in full force and effect.


 


EXCULPATION CLAUSE


 


40.           Neither Landlord nor any principal, partner,
member, officer, director, trustee,
or affiliate of Landlord (collectively, “Landlord Affiliates”) shall have any
personal liability under any provision of this Lease. In the event Landlord
defaults in performing any of its obligations hereunder, Tenant shall look
solely to Landlord’s equity in the Property to satisfy Tenant’s remedies on
account therefore. If Tenant obtains a money judgment against Landlord, Tenant
shall be entitled to have execution upon such judgment only upon Landlord’s
equity in the Property, and not on Landlord or Landlord Affiliates.


 


INDUSTRIAL USER SURVEY


 


41.           Tenant agrees to complete the attached Exhibit
“A” known as the Frederick County Bureau of Water and Sewer Industrial User
Waste and Slug Potential Survey.


 


RIGHTS OF FIRST OFFERING


 


42.           a) 
Tenant shall have an ongoing right of first offer throughout the primary
Lease term for all or any part of 50,000 net rentable square feet of space in
Landlord’s adjacent proposed Building A at Riverside Technology Park
(“Expansion Space”). Landlord further represents and warrants that it will not
under any circumstances market or lease any portion of said Expansion Space to
any other prospects prior to December 31, 2006. If at any time after December
31, 2006, all or any portion at the Expansion Space becomes available for
leasing, Landlord shall give Tenant a written offer (the “Landlord’s Offer”)
setting forth the amount of space available and the basic economic terms and
conditions upon which the space will be leased. The Landlord’s Offer shall
provide that rent for the space
offered shall be the pro forma rent required by Landlord’s construction lender
for the Expansion Space pursuant to Landlord’s financing documents (provided
that if no such requirement exists, then the rent offered shall be the fair
market value for comparable industrial buildings in the Frederick flex
Industrial sub-market). Tenant will have seven (7) business days after receipt
of Landlord’s Offer to accept or decline the space offered. If Landlord does
not receive written notice from Tenant of acceptance or declining then Landlord
will assume Tenant has declined the Landlord’s Offer and


 


20

















 


Landlord shall be entitled to offer the
portion of the Expansion Space which was offered to Tenant to any other
prospective tenant. If Landlord does not execute a lease for the Expansion
Space (or the portion thereof which was offered to Tenant) after compliance
with the provisions set forth in this Paragraph 42 within six months after the
date of Landlord’s Offer, it shall again be required to give Tenant notice with
respect to any subsequent proposed lease of all or any portion of the Expansion
Space.


 


b)            In addition to the foregoing right of first
offer, Tenant shall have a right of first offer for the remaining space in the
Building. If any other space in Building becomes “Available” (as said term is
hereinafter defined), Tenant shall have a right of first offer to lease all of
the available space (the “Adjacent Space”).


 


Promptly after Landlord becomes aware that the Adjacent Space is, or is
about to become, Available, Landlord shall notify Tenant thereof, which notice
shall specify the amount of the Adjacent Space Available and the basic economic
terms and conditions upon which the Adjacent Space will be leased. Landlord’s
notice shall provide that rent for the space offered shall be a fair market
value for comparable industrial buildings in the Frederick flex industrial
sub-market. Tenant will have seven (7) business days after receipt of
Landlord’s notice to accept or decline the Adjacent Space specified therein. If
Landlord does not receive written notice from Tenant of acceptance or
declining, then Landlord will assume Tenant has declined the Landlord’s offer
and Landlord shall be entitled to offer the portion of the Adjacent Space which
was offered to Tenant to any other prospective tenant. If Landlord does not
execute a lease for the Adjacent Space after compliance with the provisions set
forth in this Paragraph 42(b) within six months of Landlord’s notice, it shall
again be required to give Tenant notice with respect to any subsequent proposed
lease of the Adjacent Space. For purposes of this Paragraph 42(b), “Available”
with respect to Adjacent Space means that the Adjacent Space is not subject to
a lease with a third-party tenant which lease contains any unexercised or
unexpired expansion, renewal or extension right.


 


AS WITNESS THE HANDS AND SEALS OF THE PARTIES HERETO
THE DAY AND YEAR FIRST ABOVE WRITTEN:


 


 


	
  WITNESS:

  	
  TENANT:
  BBI BIOTECH RESEARCH LABORATORIES, INC.

  
	
   

  	
   

  
	
  /s/ Kristin
  Pettit

  	
   

  	
  By:

  	
   

  	
  /s/ Mark Manak

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name:

  	
   

  	
  Mark Manak

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
  General Manager & Sr. Vice President

  	
   

  
											



 


21

















 


	
  WITNESS:

  	
  LANDLORD: 

  	
  MIE
  Properties, Inc.,

  as agent for owner

  
	
   

  	
   

  	
   

  
	
  /s/ Jennifer
  Roschel

  	
   

  	
  By: 

  	
   

  	
  /s/ Julianne A. Wagner

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name:

  	
  Julianne A. Wagner

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Partner

  	
   

  
										



 


22

















 


SECURITY DEPOSIT AGREEMENT


 


This is NOT
a receipt.


 


Date:
3/1/04


 


Received from BBI Biotech Research
Laboratories, Inc., the amount of $40,261.00,
as security deposit for the Premises: 8425
Progress Drive, Suites A-Y, Frederick, Maryland 21701.


 


Landlord agrees to deposit the security deposit in a simple
interest-bearing account. Landlord agrees that, subject to the conditions
listed below, this security deposit (with interest accrued thereon) will be
returned in full within thirty (30) days of vacancy.


 


Tenant agrees that this security deposit may not be applied by Tenant as
rent and that the full monthly rent will be paid on or before the first day of
every month, including the last month of occupancy; provided that in the event
of Landlord’s bankruptcy, or the bankruptcy of the owner of the Building, the
Tenant shall have the right to apply the security deposit to the next
installment(s) of rent. Tenant further agrees that a  mortgagee of the property demised by the Lease to which
this Security Deposit Agreement is appended and/or a mortgagee thereof in  possession of said property and/or a
purchaser of said property at a foreclosure sale shall not have any liability
to Tenant for this security deposit.


 


SECURITY DEPOSIT RELEASE PREREQUISITES


 


1.     Full term of Lease has expired.


2.     No damage to property beyond ordinary wear and tear.


3.     Entire Premises broom clean and in order.


4.     No unpaid late charges or delinquent rents, or other delinquent sums
payable by Tenant.


5.     All keys returned to Landlord.


6.     All debris and rubbish and discards placed in proper rubbish containers.


7.     Forwarding address left with Landlord.


 


AS WITNESS THE HANDS AND SEALS OF THE PARTIES HERETO
THE DAY AND YEAR FIRST ABOVE WRITTEN:


 


	
  WITNESS:

  	
  TENANT:
  BBl BIOTECH RESEARCH LABORATORIES, INC.

  
	
   

  	
   

  
	
  /s/ Kristin Pettit

  	
   

  	
  By: 

  	
   

  	
  /s/ Mark Manak

  	
   

  
	
   

  	
  Printed Name: 

  	
   

  	
  Mark Manak

  	
   

  
	
   

  	
  Title:

  	
  General Manager
  & Senior Vice President

  	
   

  
	
   

  	
   

  
	
   

  
	
  WITNESS:

  	
  LANDLORD:
  MIE Properties, Inc., as agent for owner

  
	
   

  	
   

  
	
  /s/ Jennifer Roschel

  	
   

  	
  By:

  	
  /s/ Julianne A . Wagner

  	
   

  
	
   

  	
  Printed Name: 

  	
  Julianne A. Wagner

  	
   

  
	
   

  	
  Title:

  	
  Partner

  	
   

  
																



 


23

















 


RULES AND REGULATIONS


 


8425 Progress Drive, Suites A-Y, Frederick, Maryland 21701


 


1.             The Common Facilities, and the sidewalks,
driveways, and other public portion of the property (herein “Public Areas”)
shall not be obstructed or encumbered by Tenant or used for any purpose other
than ingress or egress to and from the Premises, and Tenant shall not permit
any of its employees, agents, licensees or invitees to congregate or loiter in
any of the Public Area. Tenant shall not invite to, or permit to visit the
Premises; persons in such numbers or under such conditions as may interfere
with the use and enjoyment by others of the Public Areas. Landlord reserves the
right to control and operate, and to restrict and regulate the use of, the
Public Areas and the public facilities, as well as facilities furnished for the
common use of tenants, in such manner as it deems best for the benefit of
tenants generally.


 


2.             No bicycles, animals (except seeing-eye dogs)
or birds of any kind shall be brought into, or kept in or about any Premises
within the building.


 


3.             No noise, including, but not limited to,
music, the playing of musical instruments, recordings, radio or television, which,
in the judgment of Landlord, might disturb other tenants in the building or
public areas, shall be made or permitted by any tenant.


 


4.             The Premises shall not be used for lodging or
sleeping or for any immoral or illegal purpose.


 


5.             Tenant shall not cause or permit any odors of
cooking or other processes, or any unusual or objectionable odors, to emanate
from the Premises, which would annoy other tenants or create a public or
private nuisance. Smoking is not allowed in the building.


 


6.             Plumbing facilities shall not be used for any
purpose other than those for which they were constructed. No sweepings,
rubbish, ashes, newspapers, objects or other substances of any kind shall be
thrown into the plumbing facilities.


 


7.             Tenant agrees to keep the Premises in a neat,
good and sanitary condition and to place garbage, trash, rubbish and all other
disposables only where Landlord directs.


 


8.             Landlord reserves the right to rescind,
alter, waive or  add, any rule or
Regulation at any time prescribed for the building when, in the reasonable
judgment of Landlord. Landlord deems it necessary or desirable for the
reputation, safety, character, security, care, appearance or interests of the
Building, or the preservation of good order therein, or the operation or maintenance
of the Building, or the equipment thereof, or the comfort of tenants of others
in the Building. No rescission, alteration, waiver or addition of any rule or
regulation in respect of one tenant shall operate as a rescission, alteration
or waiver in respect of any other tenant.


 


9.             Tenant shall have the non-exclusive right to
park in parking spaces in front of and behind Tenant’s Premises. This area
shall be defined by two imaginary lines extending out from Tenant’s demising
walls.


 


10.           Except as otherwise provided in the Lease, Tenant shall not place
storage trailers or other storage containers of any type outside the Premises.


 


11.           Except as otherwise provided in the Lease, Tenant shall not park on a
permanent or semi-permanent basis, any trailer behind dock doors or in any
other location outside the Premises for the purpose of storage.


 


12.           Non-compliance with any of the above rules and regulations may, in
Landlord’s sole judgment, result in a monetary fine not to exceed $25 per day.
Landlord will notify Tenant of such violations and Tenant will have five (5)
days to rectify, after which, daily fine will be applied.


 


24

















 


[GRAPHIC]


 


25

















 


EXHIBIT B


 


Tenant Improvement Agreement


 


THIS TENANT IMPROVEMENT AGREEMENT (this “Agreement”) is made and
entered into as of March 1, 2004, by and between MIE Properties, Inc. (“Landlord”),
and BBI Biotech Research Laboratories, Inc, (“Tenant”).


 


RECITALS


 


This Agreement is attached to and forms a part of that certain Lease
Agreement of even date herewith by and between Landlord and Tenant pursuant to
which Landlord has leased to Tenant certain real property situated at 8425 Progress Drive Ste A-Y Frederick, MD 21701,
consisting primarily of a 65,160 square foot portion of the Building.


 


Landlord and Tenant desire to enter into this Agreement to set forth
their agreements with respect to the improvements to be constructed by Tenant
on the Premises prior to Tenant’s occupancy thereof,


 


NOW, THEREFORE, in consideration of these premises and the covenants
and agreements of Landlord and Tenant set forth in the Lease, the parties agree
as follows;


 


1.             Definitions.  All
capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the
Lease.   When used in this Agreement,
the following terms shall have the meanings set forth in this Paragraph 1:


 


(a)           Completion Date. The date on which all requisite final
certificates of occupancy have been issued by applicable Governmental
Authorities and a certificate of final completion has been issued by the
architect or engineer responsible for preparing the Final Plans.


 


(b)           Governmental Requirements. All laws,
ordinances, statutes, codes, rules, regulations, orders and decrees
of the United States, the state, the county, the city or any other political
subdivision in which the Demised Premises is located, and any other political
subdivision, agency or instrumentality exercising jurisdiction over Landlord,
Tenant or the Demised Premises (collectively, the “Governmental Authorities”).


 


(c)           Improvements.  Those certain
improvements, including without limitation,
the 65,160 square foot portion of the Building as described in the Lease, as
set forth in the Final Plans.


 


(d)           Material Work.  Any
work performed by a single contractor or subcontractor the aggregate cost of
which exceeds $2,000.


 


2.             Plans: Work Schedule.


 


(a)           Within five (5) business days after full
execution of the Lease, Tenant will submit to Landlord a Work Schedule which
specifies the projected dates for commencement and completion of the
Improvements, the dates by which Landlord and/or


 


 

















 


Tenant is required to make filings or
applications to any Governmental Authorities in connection with the construction
and completion of the Improvements, and such other dates as Tenant determines
should be identified for the mutual benefit of Tenant and Landlord to enable
the parties to comply with their respective obligations under the Lease,
including this Agreement.


 


(b)           Whenever any of Tenant’s plans, specifications and drawings identified
on the Work Schedule (“Tenant’s Plans”) are subject to Landlord’s approval (as
set forth on the Work Schedule), Landlord shall review said Tenant’s Plans
within five (5) business days following receipt thereof and shall advise Tenant
within such five (5) day period whether the Tenant’s Plans are acceptable or
whether Landlord requires changes to such Tenant’s Plans. In each case,
Landlord’s approval of Tenant’s Plans shall not be unreasonably withheld,
conditioned or delayed and in no event shall Landlord’s requested changes
substantially alter the scope of Tenant’s Plans. Upon Landlord’s approval of
the working drawings identified on the Work Schedule, such plans shall be the
“Final Plans” for the Improvements. Approval by Landlord of any of Tenant’s
Plans shall not be a representation or warranty of Landlord that such plans are
adequate for any use, purpose or condition, or that such plans comply with any
applicable Governmental Requirement, but shall merely be the consent by
Landlord to the improvements to be constructed pursuant to such plans.


 


3.             Approved Contractors. All work with regard to construction of the
Improvements shall be performed only by contractors and subcontractors licensed
to do business in the state in which the Premises are located. All contractors
and subcontractors shall be required to procure and maintain insurance against
such risks, in such amounts, and with such companies as Landlord may reasonably
require, and those contractors and subcontractors performing Material Work
shall be obligated to obtain payment and performance bonds covering the cost of
their work and certificates of insurance before construction of the
Improvements is commenced. All work shall be performed in a good and
workmanlike manner that is free of defects and is in strict conformance with
the Final Plans and all applicable Governmental Requirements.   Tenant shall obtain warranties on all
Improvements for a minimum of one (1) year.


 


4.             Insurance Requirements. In addition to the insurance to be
maintained by the contractors
and subcontractors for the Improvements, until the Completion Date, Tenant
shall be obligated to maintain or cause to be maintained the following
insurance, in the minimum amounts indicated, naming Landlord as an additional
insured, pursuant to policies issued by companies authorized to do business in
the state where the Premises are located which are satisfactory to Tenant:


 


(a)           Workers’ Compensation with full statutory
limits for employer’s liability;


 


(b)           A standard builder’s risk policy with
extended coverage in the amount of one hundred percent (100%) of the value of
the Improvements, as agreed to by Landlord and Tenant, together with all
standard construction industry clauses and endorsements and such other clauses
and/or endorsements as Landlord may reasonably require;


 

















 


(e)           “All risk” property
insurance covering all risks of direct physical loss to the Improvements in an
amount not less than 100% of the replacement value of the improvemnets; and


 


(d)           Commercial General
Liability Insurance, including direct and contingent liability, in the
aggregate amount of $2,000,000 combined single limit coverage per occurrence
for personal injury, death or property damage.


 


Original policies
or copies of the foregoing insurance, or, in lieu thereof, certificates
evidencing such insurance, shall be delivered to Landlord before Tenant
commences construction of the Improvements.


 


5.             Bidding of Contract. Tenant shall
utilize its own construction manager and competitively bid the actual
construction to three qualified contractors reasonably acceptable to Landlord,
provided that Landlord or a general contractor designated by Landlord shall be
entitled to bid the actual construction as one of the three bidding
contractors. Tenant shall have the sole discretion to select the contractor for
the Tenant Improvements, except that Tenant agrees to use Landlord’s roofing
contractor.


 


6.             Landlord’s Right to Inspect.
Landlord shall designate a representative authorized to act on its behalf for
the purpose of inspecting the Improvements and the status of construction
(“Landlord’s Representative”), Landlord’s Representative shall be entitled to
enter the Premises at reasonable times during the  construction of the Improvements for purposes of such
inspection. Tenant and LandLord will  schedule
mutually convenient progress meetings during the construction of the
Improvements among Landlord’s Representative, Tenant’s construction manager and
the appropriate architects, engineer’s, contractors and/or subcontractors.


 


7.             Costs of Improvements. Landlord shall
provide the Tenant with a  Tenant
improvement allowance of $1,954,800 towards the construction of the
Improvements and related expenses including, without limitation, preparation of
the Tenant’s Plans and the Final Plans, costs of all building permits and other
authorization necessary to commence and continue construction, costs of
construction labor and materials, all related tax and insurance costs, the
costs of obtaining all requisite certificates of occupancy for Tenant’s use of
the Premises, the cost of furniture, fixtures, 
machinery and equipment, and moving expenses associated with Tenant’s
relocation to the Building. Tenant shall submit a budget to Landlord before the
commencement of construction as per the attached form. During the construction
Tenant shall submit a  monthly
draw request, including the budget template for work in place category, all
invoices and executed lien waivers (form attached). Upon receipt of the draw
request, Landlord shall have five (5) calendar days to inspect the completion
of the improvement requisitioned. Landlord shall notify Tenant in writing of
any discrepancies within the 5-day period or Landlord shall fund the draw
within fifteen (15) business days of receipt of the draw request from Tenant.
At Tenant’s option, Landlord shall either pay the invoice(s) attached to the
draw request directly to the vendor(s), or provide Tenant with sufficient funds
to pay such vendor(s).


 


8.             Liability for Improvements. 
Tenant assumes complete responsibility and liability for
construction of the Improvements in accordance with the Final Plans and all
applicable Governmental Requirements and in that regard, to the fullest extent
permitted by


 

















 


applicable law, Tenant shall and does agree
to indemnify, protect, defend and hold harmless Landlord, Landlords’s officers,
directors, shareholders, employees and agents (collectively the “Indemnitees”)
from and against all claims, damages, losses, liens, causes of  action, suits, judgments, and expenses,
including reasonable attorneys fees, of any nature, kind or description
(including personal injury and death), directly or indirectly arising out of,
caused by, or resulting from (in whole or in part) (a) the work performed
hereunder, or any part thereof, (b) the Final Plans, or (c) any act or omission
of Tenant or of any architect, engineer, contractor, or subcontractor, in
anyone directly or indirectly employed by them, or anyone that they control or
exercise  control over in
connection with the construction and completion of the Improvements ((a)
through (c) being herein referred to collectively as the “Liabilities”).
The obligations of Tenant under this indemnification shall not apply to Liabilities
to the extent such Liabilities are caused in whole or in part by the negligence
of any Indemnitee.


 


9.             Incorporation. This Agreement is incorporated into and made
a part of the Lease by  this
reference, and the Lease is hereby incorporated into and made a part of this
Agreement by reference.