AGREEMENT FOR TERMINATION OF LEASE AND VOLUNTARY SURRENDER OF PREMISES
Exhibit
10.87
AND
VOLUNTARY SURRENDER OF PREMISES
This
Agreement for Termination of Lease and Voluntary Surrender of Premises (this
”Agreement”)
is made
and entered into as of the 28th
day of
September, 2006, by and between ARE-MARYLAND
NO. 23, LLC,
a
Delaware limited liability company (“Landlord”),
and
GENE
LOGIC, INC.,
a
Delaware corporation (“Tenant”)
with
reference to the following:
RECITALS
A. Landlord
and Tenant entered into a Lease dated October 5, 2004, as amended by a letter
agreement dated October 5, 2004 (collectively, the “Lease”),
for
the lease of 16,406 rentable square feet of space (“Premises”)
in the
building located at 0 Xxxx Xxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000.
All
initially capitalized terms not defined specifically herein shall have the
meanings set forth in the Lease.
B. Landlord
is negotiating a lease agreement (“New
Lease”)
with
BioVeris Corporation (“New
Tenant”)
whereby
New Tenant will lease the Premises from Landlord. As a condition of Landlord
entering into the New Lease with New Tenant, the Lease shall be
terminated.
C. Tenant
desires to terminate the Lease, which termination will be earlier than the
date
of expiration set forth in the Lease.
D. Landlord
is willing to agree to the early termination of the Lease as set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing, in further consideration of the
mutual promises made herein, and for other good and valuable consideration,
receipt of which is acknowledged, Landlord and Tenant agree as
follows:
1. Termination
Date.
Landlord
and Tenant hereby agree to terminate the Lease, subject to Tenant’s satisfaction
or Landlord’s waiver of the terms and conditions set forth herein. The
termination of the Lease shall be effective as of September 25, 2006 (the
“Termination
Date”).
If
Tenant has paid any Rent or Additional Rent allocable to the period on or after
the Termination Date, Landlord shall refund such amounts to Tenant within 45
days after the Termination Date.
2. Termination
and Surrender.
Tenant
represents and warrants that it has vacated or will vacate the Premises on
or
before the Termination Date. Tenant voluntarily surrenders all rights of
possession of the Premises as of the Termination Date. After the Termination
Date, Tenant shall have no rights of any kind with respect to the Premises.
Tenant agrees to cooperate with Landlord in all matters, as applicable, relating
to (i) decommissioning of the Premises as a licensed laboratory, which Landlord
acknowledges has been accomplished based on information Landlord has received
from its consultant; and (ii) the surrender, cancellation, or revocation of
all
licenses of Tenant to the extent relating to the Premises and to the extent
permitted by applicable laws, rules, and regulations.
3. No
Further Obligations.
Landlord
and Tenant agree that Landlord and Tenant are excused as of the Termination
Date
from any further obligations with respect to the Lease for the period on or
after the Termination Date, excepting only such obligations to each other under
the Lease which are, by their terms, intended to survive termination of the
Lease, and as otherwise specifically provided herein. In addition, nothing
herein shall be deemed to limit or terminate any common law or statutory rights
Landlord may have with respect to Tenant in connection any Hazardous Material
(as defined in the Lease) brought onto, kept, used, created, released, spilled,
or discharged on the Premises by Tenant or its employees, agents, contractors,
or invitees occurring before the Termination Date, or for violations of any
governmental requirements or any requirements of applicable law occurring before
the Termination Date. Nothing herein shall excuse Tenant from its obligations
arising or accruing under the Lease for that portion of the Term (as defined
in
the Lease) prior to the Termination Date.
4. Removal
of Personal Property.
(a) Transferred
Personal Property.
Except
as provided in this Section 4, Tenant agrees that the Premises shall be
surrendered free of the personal property of Tenant. Any personal property
of
Tenant remaining in the Premises as of the Termination Date shall be deemed
to
be abandoned by Tenant, and may be disposed of by Landlord, in Landlord’s sole
discretion, without obligation or liability to Tenant. Notwithstanding any
contrary provision contained in this Agreement but subject to the satisfaction
of the condition precedent set forth in Section 6 below, effective as of the
Termination Date Tenant hereby grants, conveys, and assigns to New Tenant by
means of the Xxxx of Sale (“Xxxx
of Sale”)
in the
form of Exhibit
A
attached
hereto all of Tenant’s right, title, and interest in and to the personal
property identified on Rider 1 attached to the Xxxx of Sale (“Transferred
Personal Property”),
which
Transferred Personal Property may remain in the Premises for the possession
and
use of New Tenant. Concurrently with the execution and delivery of this
Agreement, Tenant shall execute the Xxxx of Sale and deliver it to Landlord,
who
in turn shall deliver it to New Tenant as part of the New Lease.
(i) Tenant
shall grant, convey, and assign the Transferred Personal Property in its then
current “as is” condition but Tenant hereby covenants that the Transferred
Personal Property shall nonetheless be in good working order and condition
as of
the Termination Date. Tenant represents and warrants that the Transferred
Personal Property is free and clear of all liens and encumbrances of any type
or
kind whatsoever and that Tenant has good and marketable title to the Transferred
Personal Property. Tenant shall have no obligation to clean, decommission,
and
recertify the Transferred Personal Property.
(ii) Tenant
shall be responsible for timely paying any applicable sales tax due and owing
on
the conveyance of the Transferred Personal Property from Tenant to New Tenant
and timely remitting and reporting such payment to the applicable taxing
authority. Tenant shall provide Landlord with written documentation confirming
such payment. Tenant shall indemnify, defend (with counsel reasonably acceptable
to Landlord), and hold Landlord harmless from and against all costs, claims,
damages, expenses (including, without limitation, reasonable attorneys’,
consultants’ and experts’ fees, court costs and amounts paid in settlement of
any claims or actions), fines, forfeitures, or other civil, administrative,
or
criminal penalties, injunctive or other relief, liabilities, or losses that
arise from, or relate to, the nonpayment, underpayment, or delinquent payment
of
any such sales taxes.
(b) Landlord
Personal Property.
Tenant
acknowledges that it (i) shall surrender to Landlord on the Termination Date
the
office furniture (except office chairs) located in the technician’s office
within the Premises and all surgical lighting systems in the storage room on
the
first floor of the Premises (collectively, the “Landlord
Personal Property”)
in the
condition set forth in Section 18.2 of the Lease, and (ii) has no right, title,
or interest in and to the Landlord Personal Property.
5. Release
of Liability.
As
of the Termination Date, Tenant releases Landlord from any liability to Tenant
arising from the Lease, and from the termination of the Lease.
6. Conditioned
Upon New Lease.
The
termination of the Lease shall be subject to the condition precedent that as
of
the Termination Date, Landlord and New Tenant shall have actually entered into
the New Lease. If Landlord and New Tenant have not executed and delivered the
New Lease on or before September 30, 2006, this Agreement shall be null and
void
without the requirement of action by any person, and shall thereafter be of
no
further force of effect.
7. Termination
Fee.
The
termination of the Lease shall be subject to the condition precedent that as
of
the date of this Agreement, Tenant shall have made payment to Landlord in
available funds, in consideration of Landlord’s agreement to terminate the
Lease, a payment which shall be in the amount of $183,593.38 (the “Termination
Fee”).
If
timely payment of the Termination Fee is not made by Tenant, this Agreement
shall be null and void without the requirement of action by any person, and
shall thereafter be of no further force of effect. If this Agreement becomes
null and void for any reason, to the extent that all or any portion of the
Termination Fee has been received by Landlord, Landlord shall promptly return
the Termination Fee to Tenant. That portion of the Termination Fee attributable
to September 2006 is an amount equal to $5,250. Within 45 days after the
Termination Date, Landlord shall adjust that portion of the Termination Fee
allocable to September 2006 so that Tenant will pay its proportionate share
of
such portion (calculated on a per diem basis, i.e., $175/day) for the period
between the Termination Date and September 30, 2006.
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8. No
Assignment or Subletting.
Tenant
represents and warrants that it has not assigned, mortgaged, pledged, encumbered
or otherwise transferred any right, title, or interest of Tenant in the Lease
and that Tenant holds the interest in the Premises as a tenant as set forth
in
the Lease as of the date of this Agreement.
9. No
Further Modification/Counterparts/Authorization.
This
Agreement may not be modified or terminated except in a writing signed by all
parties. This Agreement may be executed in counterparts which, taken together,
will constitute one agreement binding on the parties. The persons signing below
represent and warrant that they are duly authorized to execute and deliver
this
Agreement. This Agreement supersedes any prior agreement between the parties
with regard to termination of the Lease.
10. Successors
and Assigns.
The
covenants and agreements herein contained shall inure to the benefit of and
be
binding upon the parties to this Agreement and their respective successors
and
assigns.
11. Attorneys’
Fees.
In the
event of a dispute between the parties, the prevailing party shall be entitled
to have its reasonable attorneys’ fees and costs paid by the other
party.
12. Conflict
of Laws.
This
Agreement shall be governed by the laws of the state in which the Premises
are
located.
13. Headings.
Section
headings in this Agreement are for convenience of reference only, and shall
not
be construed to affect or modify the substantive meaning of any Section
hereof.
14. Acknowledgments.
Tenant
and Landlord each acknowledges that it has read the foregoing provisions,
understands them, and is bound by them. Time is of the essence in this
Agreement.
SIGNATURES
APPEAR ON FOLLOWING PAGE
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IN
WITNESS
WHEREOF, the parties have executed this Agreement as of the date first written
above.
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LANDLORD:
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ARE-MARYLAND
NO. 23, LLC,
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A
Delaware limited liability company
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By:
Alexandria
Real Estate Equities, L.P.,
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| a Delaware limited partnership | |||
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By:
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ARE-QRS
CORP.,
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| a Delaware corporation | |||
| By: /s/ Xxxx Xxxx | |||
| Name: Xxxx Xxxx | |||
| Title: AVP—Real Estate Legal Affairs | |||
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TENANT:
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GENE
LOGIC, INC.,
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a
Delaware corporation
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By:
/s/
Xxxxxxx X. Xxxxxx, Xx.
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Name:
Xxxxxxx
X. Xxxxxx, Xx.
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Title:
Chief
Financial Officer
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