Lease Agreement between United Health Care Services, Inc. and Novavax, Inc. for 1 Taft Court, Rockville, Maryland
This lease agreement is between United Health Care Services, Inc. (landlord) and Novavax, Inc. (tenant) for Suite 200 at 1 Taft Court, Rockville, Maryland. The lease covers a 60-month term starting April 1, 2005, and ending March 31, 2010. Novavax will use the space for office and laboratory purposes, paying escalating annual base rent. The agreement outlines responsibilities for rent, security deposit, use of common areas, and maintenance. The landlord provides a construction allowance, and both parties have specified notice addresses. The lease also details insurance requirements and permitted uses.
1. | BASIC LEASE PROVISIONS |
(a) | Execution Date | As of April , 2005. | ||
(b) | Building: | 1 Taft Court, Rockville, Maryland, which is deemed to contain 34,000 RSF | ||
(c) | Premises: | Suite 200 (identified on Exhibit A), located on the 2nd floor of the Building and deemed to contain 11,743 RSF. | ||
(d) | Use: | General administrative non-governmental office use consistent with that of a first-class office building, bench-top medical laboratory purposes and, to the extent permitted by applicable law and zoning codes, light assembly purposes. | ||
(e) | Scheduled Term: | 60 months. | ||
(f) | Commencement Date: | April 1, 2005. | ||
(g) | Expiration Date | March 31, 2010 | ||
(h) | Base Rent: | The following amounts payable in accordance with Article 4 |
Annual Base Rent | Annual Base Rent for | Monthly Base Rent | ||||||||||
Months | Rate per RSF | 11,743 RSF | for 11,743 RSF | |||||||||
Commencement Date until | $ | 0.00 | $ | 0.00 | $ | 0.00 | ||||||
May 30, 2005 | ||||||||||||
June 1, 2005- | $ | 20.00 | $ | 234,860.00 | $ | 19,571.67 | ||||||
March 31, 2006 | ||||||||||||
April 1, 2006- | $ | 20.60 | $ | 241,905.84 | $ | 20,158.82 | ||||||
March 31, 2007 | ($20.00 x 1.03 | ) | ||||||||||
April 1, 2007- | $ | 21.22 | $ | 249,186.46 | $ | 20,765.54 | ||||||
March 31, 2008 | ($20.60 x 1.03) | |||||||||||
April 1, 2008- | $ | 21.86 | $ | 256,701.98 | $ | 21,391.83 | ||||||
March 31, 2009 | ($21.22 x 1.03) |
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April 1, 2009- | $ | 22.52 | $ | 264,452.36 | $ | 22,037.70 | ||||||
February 28, 2010 | ($21.86 x 1.03 | ) | ||||||||||
March 1, 2010 to | $ | 0.00 | $ | 0.00 | $ | 0.00 | ||||||
March 31, 2010 |
(i) | Base Year (Base Year) | Calendar Year 2005 | ||
(j) | Tenants Share: | Thirty-four and five tenths percent (34.5%) which is 11,743 RSF comprising the Premises divided by 34,000 RSF comprising the Building | ||
(k) | Security Deposit: | $19,571.67 | ||
(l) | Notice Address: | For each party, the following address(es): |
To Landlord | To Tenant | |
United HealthCare Services, Inc. | Novavax, Inc. | |
Attention: Lease Administration | Attention: Dennis W. Genge | |
MN008-E305 | 508 Lapp Road | |
9900 Bren Road | Malvern, PA 19355 | |
Minnetonka, MN 55343 | ||
With a copy to: | With a copy to: | |
United HealthCare Services, Inc. | David A. White, Esq. | |
Facility Manager | White White & Van Etten LLP | |
800 Oak Street | 55 Cambridge Parkway | |
Frederick, MD 21703 | Cambridge, MA 02142 |
(m) | Brokers: | Trammell Crow Company (for Landlord); and USI Real Estate Brokerage Services, Inc. (for Tenant). Brokers will be paid by Landlord in accordance with a separate agreement. | ||
(n) | Liability Limit: | $1,000,000.00 for any one accident or occurrence. | ||
(o) | Construction Allowance: | $58,715.00 ($5.00 times 11,743 RSF). | ||
(p) | Business Hours: | From 8:00 a.m. to 6:00 p.m. on Monday through Friday and from 8:00 a.m. to 12:00 noon on Saturday, excepting: New Years Day, Martin Luther King, Jr. Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and the day after Thanksgiving Day, Christmas Day, and other legal holidays commonly observed in similar class office buildings in the locale of the Building (Holidays). |
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2. | PROJECT |
(a) | Building Structure. Building Structure means the foundations, floor/ceiling slabs, roofs, exterior walls, load-bearing interior walls, exterior glass and mullions, columns, beams, shafts, stairs, stairwells, Building mechanical, electrical and telephone closets, Common Areas, public areas, and any other structural components in the Building. The Building Structure excludes the Leasehold Improvements (and similar improvements to other premises) and the Mechanical Systems. | ||
(b) | Mechanical Systems. Mechanical Systems means the mechanical, electronic, physical or informational systems generally serving the Building (including those serving the Premises on a non-exclusive basis) or Common Areas, including the sprinkler, plumbing, heating, ventilating, air conditioning, lighting, communications, security, drainage, sewage, waste disposal, vertical transportation, and fire/life safety systems. |
(a) | Leasehold Improvements. Leasehold improvements means all non-structural improvements in the Premises or, to the extent referenced below, exclusively serving the Premises, and any structural improvements to the Building made to accommodate Tenants particular use of the Premises. The Leasehold Improvements may exist in the Premises as of the Execution Date, or be installed by Landlord or Tenant under this Lease at the cost of either party. The Leasehold Improvements include: (1) interior non-load-bearing walls and partitions (including those surrounding structural columns entirely or partly within the Premises); (2) the interior one-half of walls that separate the Premises from adjacent areas designated for leasing; (3) the interior drywall on exterior structural walls, and walls that separate the Premises from the Common Areas (defined below); (4) stairways and stairwells connecting parts of the Premises on different floors, except those required for emergency exiting; (5) the frames, casements, doors, windows and openings installed in or on the improvements described in (1-4), or that provide entry/exit to/from the Premises; |
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(6) all hardware, fixtures, cabinetry, railings, paneling, woodwork and finishes in the Premises or that are installed in or on the improvements described in (1-5); (7) if any part of the Premises is on the ground floor, the ground floor exterior windows (including mullions, frames and glass); (8) integrated ceiling systems (including grid, panels and lighting); (9) carpeting and other floor finishes; (10) kitchen, rest room, laboratory or other similar facilities that exclusively serve the Premises (including plumbing fixtures, toilets, sinks and built-in appliances); and (11) the sprinkler heads, plumbing fixtures and lighting fixtures. Notwithstanding anything to the contrary contained herein, Leasehold Improvements shall also include the heating, ventilating and air conditioning systems exclusively serving the Premises. | |||
(b) | Exclusions from the Premises. The Premises does not include: (1) any areas above the finished ceiling or integrated ceiling systems, or below the finished floor coverings that are not part of the Leasehold Improvements, (2) janitors closets, (3) stairways and stairwells to be used for emergency exiting or as Common Areas, (4) rooms for Mechanical Systems or connection of telecommunications equipment, (5) vertical transportation shafts, (6) vertical or horizontal shafts, risers, chases, flues or ducts, and (7) any easements or rights to natural light, air or view. |
3. | TERM |
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4. | RENT |
(a) | Taxes. For each calendar year after the Base Year (each, a Comparison Year), Tenant shall pay as in the manner described below the Tenants Share of the amount |
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that Taxes for the Comparison Year exceed Taxes for the Base Year. Taxes means the total costs incurred by Landlord for: (1) real and personal property taxes and assessments (including ad valorem and special assessments) levied on the Project and Landlords personal property used in connection with the Project; (2) taxes on rents or other income derived from the Building; (3) capital and place-of-business taxes; (4) taxes, assessments or fees in lieu of the taxes described in (l) through (3) above; and (5) the reasonable costs incurred to reduce the taxes described in (1) through (4) above. Taxes exclude net income taxes and taxes paid under §4.3. | |||
(b) | Expenses. For each Comparison Year, Tenant shall pay in the manner described below the Tenants Share of the amount that Expenses for the Comparison Year exceed Expenses for the Base Year. Expenses means the total costs incurred by Landlord to operate, manage, administer, equip, secure, protect, repair, replace, refurbish, clean, maintain, decorate and inspect the Project, including a market fee to manage the Project of not more than 4% of the gross revenue of the Project. Expenses that vary with occupancy will be calculated as if the Project is 95% occupied and operating and all such services are provided to all tenants. |
(1) | Expenses include: |
(A) | Standard Services provided under §6.1; | ||
(B) | Repairs and maintenance performed under §7.2; | ||
(C) | Insurance maintained under §9.1 (including deductibles paid); | ||
(D) | Wages, salaries and benefits of personnel up to the level of property manager to the extent they render services to the Project; | ||
(E) | Costs of operating the Project management office (including reasonable rent); | ||
(F) | Costs of operating, repairing or maintaining the parking facilities serving the Project; | ||
(G) | Charges for replacement of electronic key cards; and | ||
(H) | Costs which would, under generally accepted accounting principles, be deemed capital costs or capital expenditures may be included in the definition of Expenses only to the extent that such costs: (i) relate to an expenditure which is required to comply with changes in applicable Laws which occur after the Commencement Date; or (ii) relate to an expenditure which is incurred based upon a reasonable forecast that such expenditure will reduce in future years another cost which would be deemed an Expense; and (iii) are amortized, with interest of eight percent (8%) per annum, on a straight-line basis over the useful life of the improvement to which such cost relates, with only the amortized amount for each year to be included in Expenses for such year. |
(2) | Expenses exclude: |
(A) | Taxes; |
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(B) | Mortgage payments (principal and interest), and ground lease rent; | ||
(C) | Commissions, advertising costs, attorneys fees and costs of improvements in connection with leasing space in the Building; | ||
(D) | Costs reimbursed by insurance proceeds or tenants of the Building (other than as Additional Rent); | ||
(E) | Depreciation; | ||
(F) | Collection costs and legal fees paid in disputes with tenants; | ||
(G) | Costs to maintain and operate the entity that is Landlord (as opposed to operation and maintenance of the Project); and | ||
(H) | In the Base Year, only, installments of costs amortized under subsection (c) of this §4.2. | ||
(U) | Tenant specific costs billed to and paid by specific tenants. |
(c) | Amortization and Accounting Principles. |
(1) | Landlord will use sound real estate accounting and management principles, consistently applied, to determine Additional Rent. | ||
(3) | Any special assessment will only be included in Taxes to the extent it is levied after the Commencement Date and then only based upon that installment thereof (including interest thereon) payable in a particular tax year assuming such special assessment was spread over the longest term available to Landlord by the assessing authority and at the lowest interest rate available from the assessing authority. |
(d) | Estimates. Landlord will reasonably estimate Additional Rent each calendar year that Additional Rent may be payable. Tenant will pay the estimated Additional Rent in advance, in monthly installments, on the first day of each month, until the estimate is revised by Landlord. Landlord may reasonably revise its estimate during a calendar year and the monthly installments after the revision will be paid based on the revised estimate. The aggregate estimates of Additional Rent paid by Tenant in a calendar year is the Estimated Additional Rent. | ||
(e) | Settlement. As soon as reasonably practical after the end of each calendar year that Additional Rent is payable, Landlord will give Tenant a statement of the actual Additional Rent for the calendar year. The statement of Additional Rent is conclusive, binds Tenant, and Tenant waives all rights to contest the statement, except for items of Additional Rent to which Tenant objects by notice to Landlord given within one year after receipt of Landlords statement; however, Tenants objection will not relieve Tenant from its obligation to pay Additional Rent pending resolution of any objection. Upon Tenants request, Landlord shall provide Tenant with a copy of the tax bill or bills evidencing the Taxes included in Additional Rent. If the Additional Rent exceeds the Estimated Additional Rent for the calendar year, then Tenant shall pay the underpayment to Landlord in a lump sum as Rent within 30 days after receipt of Landlords statement of Additional Rent. If the Estimated Additional Rent exceeds the Additional Rent for the calendar year, then Landlord |
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shall credit the overpayment against Rent next due; provided, however, that if the amount of such overpayment exceeds the Rent due for the balance of the Term, Landlord shall promptly refund such excess to Tenant. However, if the Term ends during a calendar year, then Landlords and Tenants obligations under this §4.2(e) shall survive the end of the Term. | |||
(f) | Audit Right. Landlord shall maintain records concerning estimated and actual Expenses for no less than twelve (12) months following the period covered by the statement or statements furnished Tenant, after which time Landlord may dispose of such records. Provided that Tenant is not then in Default of its obligation to pay Base Rent, Additional Rent or other payments required to be made by it under this Lease and provided that Tenant is not otherwise in Default under this Lease, Tenant may, at Tenants sole cost and expense, cause a Qualified Person (defined below) to inspect Landlords Expense records. Within ninety (90) calendar days after receipt of Landlords written statement under Section 4.2(e) of Expenses for the previous year, Tenant must provide Landlord written notice if Tenant elects to cause a Qualified Person to inspect Landlords records. Such inspection, if any, shall be conducted no more than once each year of the Term, during Landlords normal business hours at least twenty (20) calendar days after Tenants written notice of its intent to inspect, but not more than three (3) months after such notice. Any errors disclosed by the review shall be promptly corrected by Landlord; provided, however, that if Landlord disagrees with any such claimed errors, Landlord shall have the right to cause another review to be made by an independent auditor of Landlords choice. In the event the results of the review of records (taking into account, if applicable, the results of any additional review caused by Landlord) reveal that Tenant has overpaid obligations for a preceding period, the amount of such overpayment shall be credited against Tenants subsequent installment(s) of Base Rent, Additional Rent and other payments due to Landlord under the Lease. In the event that such results show that Tenant has underpaid its obligations for a preceding period, the amount of such underpayment shall be paid by Tenant to Landlord with the next succeeding installment obligation of estimated Expenses. If the actual Expenses allocable to the Premises for any given year were improperly computed and if the actual Expenses allocable to the Premises are overstated by more than five percent (5%), Landlord shall reimburse Tenant for the cost of its audit. |
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5. | USE & OCCUPANCY |
(a) | Definition of Laws; Tenants Compliance. Laws are, collectively, all federal, state, local and municipal laws, statutes, rules, regulations, orders, ordinances, codes, orders and directives, including, without limitation, local building and zoning codes, and the Americans with Disabilities Act. Subject to the remaining terms of this Lease, Tenant shall comply at Tenants expense with all directives of Landlords insurers or Laws concerning: |
(1) | The Alterations (subject to the provisions of Article 8 of this Lease), | ||
(2) | Tenants employer/employee obligations, or | ||
(3) | Tenants failure to comply with this Lease. |
(b) | Landlords Compliance. Subject to the remaining terms of this Lease, Landlord shall comply at Landlords cost with all directives of Landlords insurers or Laws concerning the Project other than those that are Tenants obligation under subsection (a). The costs of compliance under this subsection (b) will be included in Expenses to the extent allowed under §4.2. |
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(a) | Hazardous Materials Laws shall mean all federal, state and local laws, statutes, ordinances, orders, regulations, plans, policies and decrees now or hereafter in effect and applicable to the Project which relate to (i) Hazardous Materials; (ii) the use, treatment, storage, generation, manufacture, emission, transportation or disposal of Hazardous Materials or solid waste; or (iii) occupation safety and health, industrial hygiene, land use or the protection of human, plant or animal health, safety or welfare, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §9601 et seq.)(CERCLA); the Hazardous Materials Transportation Act (49 U.S.C. §180 et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136 et seq.); the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.)(RCRA); the Toxic Substances Control Act (42 U.S.C. 7401et seq.); the Clean Air Act (42 U.S.C. §740 et seq.); the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.); the Occupational Safety and Health Act (29 U.S.C. §651 et seq.); the Safe Drinking Water Act (42 U.S.C. 300f et seq.); and the rules, regulations and ordinances of applicable federal, state and local agencies and bureaus, as amended from time to time. |
(b) | Hazardous Materials shall mean (i) any chemical, compound, material, mixture or substance that is now or hereafter defined or listed in, or otherwise classified pursuant to, any applicable Hazardous Materials Laws as a hazardous substance, hazardous material, hazardous waste, extremely hazardous waste, acutely hazardous waste, radioactive waste, infectious waste, biohazardous waste, toxic substance, pollutant, toxic pollutant, contaminant and any other term or terms not mentioned herein intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, EP toxicity or TCLP toxicity; (ii) petroleum, natural gas, natural gas liquids, liquified natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas) and ash produced by a resource recovery facility utilizing a municipal solid waste stream, and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas, or geothermal resources; (iii) asbestos in any form; (iv) urea formaldehyde foam insulation; (v) transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls (PCBs); (vi) radon; (vii) medical or biological substances or wastes including, without limitation, bloodborne pathogens regulated under 29 C.F.R. standard 1910.1030; and (viii) any other chemical, material, or substance that, because of its quantity, concentration, or physical or chemical characteristics, exposure to which is limited or regulated for health and safety reasons by any governmental authority, or which poses a significant present or potential hazard to human health and safety or to the environment if released into the workplace or the environment. |
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(c) | "Hazardous Materials Claims shall mean any and all enforcement, clean-up, abatement, removal or other governmental or regulatory actions, orders or notices of violations threatened, instituted or completed pursuant to any Hazardous Materials Laws, together with all claims, accusations, allegations or other demands made or threatened by any third party against Tenant, Landlord or the Project, including, without limitation, allegations of nuisance, trespass, waste, strict liability for ultrahazardous activity, equitable indemnity, contribution, cost recovery compensation, indemnity, relating to any damage, personal injury (including sickness, disease or death), tangible or intangible property damage, indirect or consequential damages, damage to the environment or natural resources, or relating to fines, penalties or restrictions, in connection with any Hazardous Materials. |
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6. | SERVICES & UTILITIES |
6.1 | Standard Services. | ||
(a) | Standard Services Defined. Standard Services means: |
(1) | Heating, ventilation and air-conditioning (HVAC) during Business Hours as reasonably required to comfortably use and occupy the Premises and interior Common Areas; | ||
(2) | Tempered water from the public utility for use in Common Areas rest rooms and kitchen and laboratory facilities in the Premises; | ||
(3) | Janitorial services to the Common Areas and the Premises to the extent reasonably determined by Landlord; | ||
(4) | Access to the Premises 24 hours a day, 7 days a week, 52 weeks a year; and | ||
(5) | Electricity from Landlords selected provider(s) for Common Areas lighting that require electric light during the day or are open at night, including replacement of tubes and ballasts in lighting fixtures. |
(b) | Standard Services Provided. During the Term, Landlord provides the Standard Services to Tenant. The cost of the Standard Services is included in Expenses. Landlord is not responsible for any inability to provide Standard Services due to either: the concentration of personnel or equipment in the Premises; or Tenants use of equipment in the Premises that is not customary office equipment, has special cooling requirements, or generates heat. |
(a) | Electricity. Electricity for the Premises shall not be furnished by Landlord but shall be furnished by the electric utility company serving the Building as determined by Landlord. Tenant shall make all necessary arrangements with the utility company for metering and paying for electric current furnished by said utility company to the Tenant and Tenant shall pay for all charges for electric current consumed on the |
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Premises during the Term of this Lease. Tenants electrical use in the Premises shall not exceed the capacity of the existing system serving the Premises, nor shall Tenant use more than its proportionate share of the Building electrical riser capacity. Landlord, or its agent, shall provide to Tenant and install in the Premises all lamps, bulbs, ballasts and starters used in the Premises (provided that Tenant may at its sole cost and expense and in its sole discretion purchase, and engage directly a licensed union electrician to change, lamps and bulbs used in the Premises). | |||
(b) | HVAC. If tenant requests HVAC service to the Premises during non-Business Hours, Tenant will pay as Rent Landlords scheduled rate for this service, which shall be a competitive rate. | ||
(c) | Lighting. Subject to Tenants rights under clause (a) above, Landlord will furnish both Building Standard and non-Building Standard lamps, bulbs, ballasts and starters that are part of the Leasehold Improvements. | ||
(d) | Other Utilities and Services. Tenant will pay as Rent the actual cost of utilities or services (other than HVAC and lighting addressed in (a) and (b)) either used by Tenant or provided at Tenants request in excess of that provided as part of the Standard Services. Tenants excess consumption may be estimated by Landlord unless either Landlord requires or Tenant elects to install Building Standard meters to measure Tenants consumption. | ||
(e) | Additional Systems and Metering. Landlord may require Tenant, at Tenants expense, to upgrade or modify existing Mechanical Systems serving the Premises or the Leasehold Improvements to the extent necessary to meet Tenants excess requirements (including installation of Building Standard meters to measure the same). |
(a) | Providers. Each Telecommunications Services provider that does not already provide service to the Building shall be subject to Landlords approval, which Landlord may withhold in Landlords sole discretion. Without liability to Tenant, the license of any Telecommunications Services provider servicing the Building may be terminated under the terms of the license, or not renewed upon the expiration of the license. Landlord hereby consents to Tenants existing Telecommunications Services provider, which is Inter-Tel, and Tenant shall not replace such provider without Landlords prior written consent, which consent will not be unreasonably withheld. | ||
(b) | Tenants Wiring. Landlord may, in its sole discretion, designate the location of all wires, cables, fibers, equipment, and connections (Tenants Wiring) for Tenants Telecommunications Services, and restrict and control access to telephone cabinets and rooms (provided Tenant shall have reasonable access thereto). Tenant may not use or access the Base Building, Common Areas or roof for Tenants Wiring without Landlords prior written consent, which consent shall not be unreasonably withheld, |
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conditioned or delayed. Landlord hereby consents to the existing location of Tenants Wiring. | |||
(c) | This §6.3 is solely for Tenants benefit, and no one else shall be considered a third party beneficiary of these provisions. |
(a) | Without breaching the Lease, Landlord may: |
(1) | Comply with Laws or voluntary government or industry guidelines concerning the services to be provided by Landlord or obtained by Tenant under this Article 6; | ||
(2) | Interrupt, limit or discontinue the services to be provided by Landlord or obtained by Tenant under this Article 6 as may be reasonably required during an emergency or Force Majeure event; or | ||
(3) | If Landlord gives Tenant reasonable prior notice and uses commercially reasonable efforts not to disturb Tenants use of the Premises for the Use, interrupt, limit or discontinue the services to be provided by Landlord or obtained by Tenant under this Article 6 to repair and maintain the Project under §7.2, or make any improvements or changes to the Project. |
(b) | Abatement for Interruption of Standard Services. If due to an interruption in a utility service that prevents Landlord from providing any of the Standard Services for more than five (5) consecutive days, Tenant is actually unable to use all or a part of the Premises for the normal conduct of its business (Untenantable), then from the fifth (5th) consecutive day of interruption until the Standard Services are restored, Landlord shall abate Tenants Base Rent and Additional Rent, subject to the following: |
(1) | Landlord will only abate Base Rent and Additional Rent to the extent the Premises are untenantable and not actually used by Tenant to conduct business; | ||
(2) | Landlord will only abate Base Rent and Additional Rent if the interruption of Standard Services is within Landlords reasonable control to remedy; and | ||
(3) | Landlord will only abate Base Rent and Additional Rent to the extent the interruption in Base Rent and Additional Rent is or would be covered by insurance. Landlord must maintain under §9.2; and |
(c) | No Other Liability. Except as provided under (b), Landlord will not be liable in any manner for any interruption in services to be provided by Landlord or obtained by Tenant under this Article 6 (including damage to Tenants Personal Property, consequential damages, actual or constructive eviction, or abatement of any other item of Rent). |
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(a) | Consent Required. All Alterations require Landlords prior written consent. If a Design Problem exists, Landlord may withhold its consent in Landlords sole discretion; otherwise, Landlord will not unreasonably withhold its consent. In either case, Landlord may condition its consent to any item of Alterations on the requirement that Tenant remove this item of Alterations upon termination of this Lease. Design Problem means a condition that results, or will result, from Alterations that are proposed, being performed or have been completed that either: |
(1) | Does not comply with Laws; | ||
(2) | Would require Landlord to incur costs to comply with Laws, or to incur costs to bring all or any part of the Project into compliance with Laws, unless Tenant agrees in writing to pay for those costs; | ||
(3) | Does not meet or exceed the Building Standard; | ||
(4) | Exceeds the capacity, adversely affects, is incompatible with, or impairs Landlords ability to maintain, operate, alter, modify or improve the Base Building; | ||
(5) | Affects the exterior appearance of the Building or Common Areas; | ||
(6) | Violates any agreement affecting the Project; |
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(7) | Costs more to demolish than Building Standard improvements; | ||
(8) | Violates any insurance regulations or standards for a fire-resistive office building; or | ||
(9) | Locates any equipment, Tenants Wiring or Tenants Personal Property on the roof of the Building, in Common Areas or in telecommunications or electrical closets. |
(b) | Performance of Alterations. Alterations shall be performed by Tenant in a good and workman-like manner according to plans and specifications approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. All Alterations shall comply with Law and insurance requirements. Landlords designated contractors must perform Alterations affecting the Base Building or Mechanical Systems; and, all other work will be performed by qualified contractors that meet Landlords insurance requirements and are otherwise approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. Promptly after completing Alterations, Tenant will deliver to Landlord as-built CADD plans, proof of payment, a copy of the recorded notice of completion, and all unconditional lien releases. Notwithstanding the foregoing, Tenant may make improvements, additions, installations, decorations and changes to the Premises which do not create or cause Design Problems, the cost of any one of which must not exceed $15,000.00, all of which in any twelve-month period must not exceed $45,000.00, and Tenant delivers to Landlord as-built drawings thereof within 30 days after substantial completion of each such improvement, addition, installation, decoration or change. | ||
(c) | Alterations Fee. Tenant shall reimburse Landlord for reasonable, out-of-pocket third party costs incurred in connection with review of Tenants plans and construction coordination and inspection of the completed Alterations. |
9. | INSURANCE |
9.1 | Tenants Insurance. | ||
(a) | Tenants Coverage. Before taking possession of the Premises for any purpose (including construction of Tenant Improvements, if any) and during the Term, Tenant will provide and keep in force the following coverage: |
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(1) | Commercial general liability insurance insuring Tenants use and occupancy of the Premises and Common Areas, and covering personal and bodily injury, death, and damage to others property of not less than the Liability, Limit. Each of these policies shall include cross liability and severability of interests clauses, and be written on an occurrence, and not claims-made, basis. Each of these policies shall name Landlord, the Building property manager, and each secured lender of which Landlord has given Tenant notice as an additional insured (Additional Insured). | ||
(2) | Special risk of loss insurance (including standard extended coverage endorsement perils, leakage from fire protective devices and other water damage) covering the full replacement cost of the Leasehold Improvements and Tenants Personal Property. Each of these policies shall name Landlord and each Additional Insured an additional insured to the extent of their interest in the Leasehold Improvements. Each of these policies shall include a provision or endorsement in which the insurer waives its right of subrogation against Landlord and each Additional Insured. | ||
(3) | Insurance covering the perils described in (2) for Tenants loss of income or insurable gross profits with a limit not less than $1,000,000. Each of these policies shall include a provision or endorsement in which the insurer waives its right of subrogation against Landlord and each Additional Insured. | ||
(4) | If any boiler or machinery is operated in the Premises, boiler and machinery insurance. | ||
(5) | Insurance required by Law, including workers compensation insurance. | ||
(6) | Employers liability insurance with limits not less than $1 million. | ||
(7) | Insurance covering the Leasehold Improvements and Tenants Personal Property against loss or damage due to earthquake or difference in condition. Tenant may elect to self-insure this coverage. If Tenant does not elect to self-insure this coverage, then each of these policies shall name Landlord and each Additional Insured an additional insured to the extent of their interest in the Leasehold Improvements. |
(b) | Insurers and Terms. Each policy required under (a) shall be written with insurance companies licensed to do business in the state in which the Building is located. | ||
(c) | Proof of Insurance. Tenant shall provide Landlord with certificates of insurance or other reasonable proof that the coverage required under (a) is in effect. Tenant will provide reasonable proof at least 30 days before any policy expires that the expiring policy will be replaced. | ||
9.2 | Landlords Insurance. | ||
(a) | Landlords Coverage. During the Term, Landlord will provide and keep in force the following coverage: |
(1) | Commercial general liability insurance. |
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(2) | All risk insurance (including standard extended coverage endorsement perils, leakage from fire protective devices and other water damage) covering the full replacement cost of the Project improvements (excepting the Leasehold Improvements to be insured by Tenant). Each of these policies shall include a provision or endorsement in which the insurer waives its right of subrogation against Tenant. | ||
(3) | Insurance covering the perils described in (2) for Landlords loss of rental income of insurable gross profits. Each of these policies shall include a provision or endorsement in which the insurer waives its right of subrogation against Tenant. | ||
(4) | Boiler and machinery insurance. | ||
(5) | Other insurance that Landlord elects to maintain to the extent consistent with insurance generally maintained with respect to other commercial building complexes comparable to the Project. |
(b) | Terms. Each of the policies required under (a) will have those limits, deductibles, retentions and other terms that Landlord prudently determines. |
10. | DAMAGE OR DESTRUCTION |
(a) | Landlords Estimates. Landlord will assess the damage to the Project (but not the Leasehold Improvements) and notify Tenant of Landlords reasonable estimate of the time required to substantially complete repairs and restoration of the Project (Repair Estimate). Landlord will also estimate the time that the Premises will be untenantable (Interruption Estimate). Within 30 days after the later of the casualty, issuance of the Repair Estimate, issuance of the Interruption Estimate, or receipt of any denial of coverage or reservation of rights from Landlords insurer, each party may terminate the Lease by written notice to the other on the following conditions: |
(1) | Landlord may elect to terminate, this Lease if either: |
(A) | The damage occurs during the last year of the Term and the Repair Estimate exceeds 20% of Rent for the remaining Term. | ||
(B) | The Repair Estimate exceeds 180 days, or | ||
(C) | The repair and restoration is not fully covered by insurance maintained or required to be maintained by Landlord (subject only to those deductibles or retentions Landlord elected to maintain) or Landlords insurer denies coverage or reserves its rights on coverage. |
(2) | Tenant may elect to terminate this Lease if the Interruption Estimate exceeds 180 days. |
(b) | If neither party terminates the Lease under (a), then the Lease shall remain in full force and effect and the parties will proceed as follows: |
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(1) | Landlord will repair and restore the Project (but not Leasehold Improvements) to the condition existing prior to such damage, except for modifications required by Law. Landlord will perform such work reasonably promptly, subject to delay for loss adjustment, Tenant Delay and Force Majeure. Landlord, shall use reasonable efforts to perform such repairs so as to minimize the interference with Tenants business operations. | ||
(2) | Tenant will repair and restore the Leasehold Improvements reasonably promptly to the condition existing prior to such damage, but not less than then current Building Standards, except for modifications required by Law. | ||
(3) | Notwithstanding anything to the contrary contained in this Lease, if Landlord shall fail, either to complete the restoration and repair of the Premises, or to restore the same to their condition immediately prior to the fire or other casualty, within 180 days (regardless of any period of delay due to Force Majeure) from the date of occurrence of the fire or casualty, then, in either such event, Tenant may terminate this Lease by 10 days prior written notice to Landlord given no later than 30 days after the expiration of the aforesaid 180-day period. |
11. | INDEMNITY |
(a) | Landlords Waivers. Landlord waives any Claims against Tenant and its Affiliates for perils insured or required to be insured by Landlord under subsections (2) and (3) of §9.2(a), except to the extent caused by the gross negligence or willful misconduct of Tenant or its Affiliates. | ||
(b) | Claims Against Landlord. Unless waived by Landlord under (a), Tenant will indemnify and defend Landlord and its Affiliates and hold each of them harmless from and against Claims to the extent arising from: |
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(1) | Any accident or occurrence on or about the Premises, except to the extent caused by the negligence or willful misconduct of Landlord or its Affiliates or its agents, representatives or contractors; | ||
(2) | Tenants or its Affiliates negligence or willful misconduct; or | ||
(3) | Any claim for commission or other compensation by any person other than the Brokers for services rendered to Tenant in procuring this Lease. |
(a) | Tenants Waivers. Tenant waives any Claims against Landlord and its Affiliates for: |
(1) | Peril insured or required to be insured by Tenant under subsections (2), (3) and Section (7) of §9.1 (a), except to the extent caused by the gross negligence or willful misconduct of Landlord or its Affiliates, or its agents, representatives or contractors, but in no case including any special or consequential damages (such as interruption of business, loss of income, or loss of opportunity); and | ||
(2) | Damage caused by any public utility, public work, other tenants or occupants of the Project, or persons other than Landlord, its Affiliates, representatives or contractors. |
(b) | Claims against Tenant. Unless waived by Tenant under (a), Landlord will indemnify and defend Tenant and its Affiliates and hold each of them harmless from and against Claims arising from: |
(1) | Any accident or occurrence on or about the Project (excluding the Premises), except to the extent caused by the negligence or willful misconduct of Tenant or its Affiliates or its agents, representatives or contractors; | ||
(2) | Landlords or its Affiliates or its agents, representatives or contractors negligence or willful misconduct; or | ||
(3) | Any claim for commission or other compensation by any person other than the Brokers for services rendered to Landlord in procuring this Lease. |
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12. | CONDEMNATION |
(a) | The Lease will terminate as of the date of a Taking if substantially all of the Premises becomes untenantable for substantially all of the remaining Term because of the Taking. | ||
(b) | If the Lease is not terminated under (a), Landlord shall restore or alter the Premises after the Taking to be tenantable, unless Landlord reasonably determines that it will be uneconomical to do so, in which case Landlord may terminate the Lease upon 60 days prior written notice to Tenant. | ||
(c) | If the Lease is not terminated under (a), more than 20% of the Premises is untenantable because of the Taking, Tenant cannot operate Tenants business for the Use in the Premises after such Taking, and Landlord is unable to provide Tenant with comparable premises in the Project within 30 days after the Taking, then Tenant may terminate the Lease upon 60 days prior written notice to Landlord. | ||
(d) | If the Lease is not terminated under (a), (b) or (c), the Rent payable by Tenant will be reduced for the term of the Taking based upon the rentable area of the Premises made untenantable by the Taking. |
13. | TENANT TRANSFERS |
13.1 | Terms Defined. | ||
(a) | Transfer Defined. Transfer means any: |
(1) | Sublease of all or part of the Premises, or assignment, mortgage, hypothecation or other conveyance of an interest in this Lease; | ||
(2) | Use of the Premises by anyone other than Tenant with Tenants consent; or | ||
(3) | Change in Tenants form of organization (e.g., a change from a partnership to limited liability company). |
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(a) | Either (1) controls, is controlled by, or is under common control with Tenant (for purposes hereof, control shall mean ownership of not less than 50% of all of the voting stock or legal and equitable interest in the entity in question), (2) results from the merger or consolidation of Tenant, or (3) acquires all or substantially all of the stock and/or assets of Tenant as a going concern; | ||
(b) | Has a tangible net worth immediately following the Transfer equal to Tenants tangible net worth immediately before the Transfer; and | ||
(c) | Will not, by occupying the Premises, cause Landlord to breach any other lease or other agreement affecting the Project. |
(a) | Tenants Notice. Tenant shall notify Landlord at least 30 days prior to the proposed Transfer of the name and address of the proposed transferee and the proposed use of the Premises, and include in the notice the Transfer documents and copies of the proposed transferees balance sheets and income statements (both current and for the past 2 years). | ||
(b) | Landlords Rights. Within 30 days after receipt of Tenants complete notice, Landlord may either: |
(1) | If the proposed Transfer is either an assignment of this Lease or sublease of substantially all of the Premises, terminate this Lease as of the proposed Transfer date; | ||
(2) | If the proposed Transfer is a sublease of all of the Premises or any part of the Premises that will be separately demised and have its own entrance from the Common Areas, exercise a right of first refusal to sublease such portion of the Premises at the lesser of (A) the Rent (prorated for subletting part of the Premises), or (B) the rent payable in the proposed Transfer; or | ||
(3) | Consent or deny consent to the proposed Transfer, consent not to be unreasonably withheld if: |
(A) | The proposed transferee, in Landlords reasonable opinion, has the financial capacity to meet its obligations under the proposed Transfer; | ||
(B) | The proposed use is consistent with the Use and will not cause Landlord to be in breach of any lease or other agreement affecting the Project; | ||
(C) | The proposed transferee is typical of tenants that directly lease premises in first-class office buildings; | ||
(D) | The proposed transferee is not an existing tenant or an Affiliate of an existing tenant, or a party with which Landlord is actively negotiating to lease space in the Building (or has, in the last 6 months, been actively negotiating to lease space in the Building); and | ||
(E) | Tenant is not in Default under this Lease. |
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(c) | Compelling Consent. If Landlord does not consent to a Transfer, Tenants sole remedy against Landlord will be an action for specific performance or declaratory relief, and Tenant may not terminate this Lease or seek monetary damages. |
If Landlord notifies Tenant of Landlords election to terminate this Lease pursuant to this Section, Tenant shall have the right, by notice to Landlord given within 10 days after receipt by Tenant of Landlords notice of termination, to withdraw Tenants request to assign or sublet this Lease, in which event Landlords election to terminate shall be rendered null and void. |
14. | LANDLORD TRANSFERS |
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15. | DEFAULT AND REMEDIES |
15.1 | Tenants Default and Remedies. | ||
(a) | Tenant will be in Default of this Lease if Tenant either: |
(1) | Fails to pay Rent when due, and the failure continues for 5 business days after Landlord notifies Tenant of this failure under §17.2 (Tenant waiving any other notice that may be required by Law); | ||
(2) | Fails to perform a non-monetary Lease obligation of Tenant and the failure continues for 30 days after Landlord notifies Tenant of this failure, but: |
(A) | In an emergency Landlord may require Tenant to perform this obligation in a reasonable time of less than 30 days, or | ||
(B) | If it will reasonably take more than 30 days to perform this obligation, then Tenant will have a reasonable time to perform this |
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obligation, but only if Tenant commences performing this obligation within 30 days after Landlord notifies Tenant of this failure and thereafter diligently prosecutes such cure to completion; |
(3) | Consummates a Transfer that violates Article 13; | ||
(4) | Fails, within 20 days after it occurs, to discharge any attachment or levy on Tenants interest in this Lease; | ||
(5) | Fails, within 60 days after it occurs, to have vacated or dismissed any appointment of a receiver or trustee of Tenants assets (or any Lease guarantors assets), or any voluntary or involuntary bankruptcy or assignment for the benefit of Tenants creditors (or any Lease guarantors creditors); or | ||
(6) | Breaches any of the covenants contained in Section 5.4.2 of this Lease. |
(b) | If Tenant is in Default, Landlord may, without prejudice to the exercise of any other remedy, exercise any remedy available under Law, including those described below: |
(1) | Landlord may enter the Premises as reasonably required and cure Tenants Default on Tenants behalf without releasing Tenant from any Lease obligation, and Tenant shall reimburse Landlord on demand for all costs of such cure, plus Landlords standard administration fee. | ||
(2) | Landlord may terminate this Lease upon notice to Tenant (on a date specified in the notice) and recover possession of the Premises from Tenant. At Landlords election, either: |
(A) | Landlord may recover any Rent unpaid as of the termination date, and Tenant will remain liable for the payment when due of Rent for the remaining Term, less the proceeds that Landlord receives in reletting the Premises, but only after Landlord is reimbursed from these proceeds for the expenses Landlord incurs to recover possession of the Premises and relet the Premises. | ||
(B) | To the extent permitted by applicable law, Landlord may recover any Rent unpaid as of the termination date, and further recover the amount by which the present value as of the termination date (calculated using the then current discount rate of the Federal Reserve Bank of New York) of the Rent to be paid for the Term remaining after the termination date (assuming 3% annual increases in Additional Rent) exceeds the proceeds that Landlord receives in reletting the Premises, but only after Landlord is reimbursed from these proceeds for the expenses Landlord incurs to recover possession of the Premises and relet the Premises. |
(3) | Landlord may use reasonably necessary force to enter and take possession of all or any part of the Premises, expel Tenant or any other occupant, and remove their personal property, and the entry will not constitute a trespass or terminate the Lease. After regaining possession of the Premises, Landlord may relet the Premises for Tenants account, but Landlord will not be |
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responsible or liable if Landlord fails to do so or is unable to collect rent due from any reletting. Tenant will continue to pay Rent due, less a credit for the proceeds that Landlord receives in reletting the Premises, but only after Landlord is reimbursed from these proceeds for the expenses Landlord incurs to recover possession of the Premises and relet the Premises. | |||
(4) | For any amounts owed under (1), (2) or (3), Landlord may recover interest at the lesser of the interest rate permitted under Law or 10% (Default Rate) from the date each amount is due until paid by Tenant. |
15.2 | Landlords Default and Remedies. | ||
(a) | Landlord will be in Default of this Lease if Landlord fails to perform any Lease obligation of Landlord and this failure continues for 20 days after Tenant notifies Landlord of such failure, or such longer period of time as is reasonable if more than 20 days is reasonably required to perform this obligation if performance commences within this 20-day period and is diligently prosecuted to completion. | ||
(b) | If Landlord is in Default, then Tenant may exercise any remedy available under Law that is not waived or limited under this Lease, subject to the following: |
(1) | Tenant may not terminate this Lease due to any Landlord Default until Tenant notifies each Encumbrance holder and each Encumbrance holder is provided a reasonable opportunity to gain legal possession of the Project and, after gaining possession, cure the Default. | ||
(2) | Landlords liability under this Lease is limited to Landlords interest in the Building. | ||
(3) | No liability under this Lease is assumed by Landlords Affiliates. |
16. | SECURITY DEPOSIT |
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17. | MISCELLANEOUS |
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LANDLORD United Healthcare Services, Inc.. | ||||
By: | /s/ BETH LEAF | |||
Its: | Beth Leaf, Vice President | |||
United Healthcare Services, Inc. | ||||
TENANT Novavax, inc. | ||||
By: | /s/ ILLEGIBLE | |||
Its: | PRESIDENT & CEO | |||
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A-1
B-1
(a) | Attach any awnings, signs, displays or projections to either the outside walls or windows of the Building, or to any part of the Premises visible from outside the Premises; | ||
(b) | Hang any non-Building Standard curtains, blinds, shades or screens in any window or door of the Premises; | ||
(c) | Coat or sunscreen the interior or exterior of any windows; or | ||
(d) | Place any objects on windowsills. |
B-2
Tenant will cooperate in preventing the same.
B-3
4
B-5