Exhibit 10.9
[LOGO] XXXXXX X. XXXXXXXXX, INC. Realtors
XXXXXX X. XXXXXXXXX Industrial Lease Agreement
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0000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
THIS LEASE AGREEMENT, entered into this 24th day of February, 1998, by and
between Xxxxxx X. Xxxxxx thereinafter referred to as "Landlord" or first party,
and Discovery Therapeutics, Inc. a Delaware corporation hereinafter referred to
as "Tenant" or second party, and Xxxxxx X. Xxxxxxxxx, Inc., Agent, hereinafter
referred to as "Agent".
W I T N E S S E T H
For and in consideration of the below stated rent and other terms and conditions
stipulated in this Lease Agreement, hereinafter referred to as the "Lease",
Landlord does hereby lease to Tenant, and Tenant does hereby rent from Landlord,
the following described lot, piece or parcel of land, together with all
improvements thereon (the said land and improvements thereon hereinafter
referred to as the "Leased Premises") to-wit:
0000 Xxxxxx Xxxx, identified by Henrico County tax map as parcel Number
95-A2-046-E-17, containing Approximately 4,050 square feet
TO HAVE AND TO HOLD said land and improvements thereon and the privileges and
appurtenances thereunto belonging unto the Tenant, its permitted successors and
asaigns, for the term hereinafter provided, and upon all of the following terms
and conditions, to which the parties mutually covenant and agree:
1. TERM:
The original term of this lease shall be for one (1) year(s) and shall
commence on the 1st day of May, 1998 (The "Commencement Date"), and shall end on
the 30th day of April, 1999 (The "Expiration Date").
2. POSSESSION:
If the Landlord shall be unable to give possession on The Commencement Date
of the term hereof by reason of the holding over of any tenant or tenants or for
any cause beyond the control of the Landlord (other than extra work undertaken
by the Landlord for the Tenant), then the rent shall not commence until
possession of the Leased Premises is given or is available, and the Tenant
agrees such allowance and abatement of rent, as liquidated damages, in full
satisfaction for the failure of the Landlord to give possession of the Leased
Premises on the said date, and in the exclusion of all claims and rights which
the Tenant might otherwise have by reason of possession of the entire Leased
Premises not being given on the said date. If Landlord is unable to give
possession due to extra work undertaken at Tenant's request then the rent shall
commence as scheduled without abatement or allowance. If Landlord is otherwise
unable to give possession on The Commencement Date, then The Expiration Date
shall be extended from the actual date of occupancy in accordance with the lease
term specified in this Lease.
If Tenant shall occupy the Leased Premises prior to The Commencement Date
of this Lease with Landlord's consent, all the provisions of this Lease shall be
in full force and effect as soon as Tenant occupies the Leased Premises and The
Expiration Date shall not change.
3. RENT:
During the original term of this Lease, Tenant covenants to pay a base
annual rental to Landlord of Thirty Five Thousand One Hundred Eighty Four
Dollars ($35,184.00), payable in equal monthly installments in advance on the
first day of each month in the amount of Two Thousand Nine Hundred Thirty Two
Dollars ($2,932.00). An additional rental may be required by attaching hereto an
addendum executed by all parties to this Lease Agreement.
If the original term does not commence on the first day of the month,
Tenant shall pay, on The Commencement Date, for the period from The Commencement
Date to the first day of the following calendar month a sum equal to
one-thirtieth of the monthly rental due hereunder for each day of such period.
All rents thereafter shall be payable in advance on the first day of each month.
All rents due Landlord shall be paid when due to Xxxxxx X. Xxxxxxxxx, Inc., X.X.
Xxx 000, Xxxxxxxx, Xxxxxxxx 00000-0000, or to such other place as Landlord may
designate in writing to Tenant. If any installment of rent or any additional
rent is not paid within seven (7) days of the due date, in addition to all other
remedies of Landlord, the delinquent rent or additional rent shall be subject to
a charge of ten percent (10%) as liquidated damages.
All monetary obligations of Tenant to Landlord under the terms of this
Lease shall be deemed to be rent.
4. RENT ESCALATION:
Beginning on the first twelve (12) month anniversary of The Commencement
Date of the Lease and on each succeeding anniversary date hereafter for the term
of the Lease and any renewals or extensions thereof, the rental rate for the
Leased Premises shall increase 4% per annum over the rate charged for the
immediately preceding twelve (12) months.
5. SECURITY DEPOSIT:
Tenant has deposited with Landlord, Two Thousand Five Hundred Thirty One
and Twenty Five Cents Dollars ($2,531.25) as security for the faithful
performance by Tenant of its commitments contained herein. Landlord may retain
the security deposit as liquidated damages of Tenant: (1) vacates leaving unpaid
rent or charges owed to the Landlord, or (2) leaves the Leased Premises unclean
or damaged beyond the limits of normal wear and tear. The provisions of this
paragraph shall not limit the amount of any claim by Landlord against Tenant
under any other terms or provisions of this Lease.
6. TAXES AND ASSESSMENTS:
Tenant agrees that as additional rental for the Leased Premises, it will,
during each calendar year of the original and all renewal terms, reimburse
Landlord for such part of the cost of all real estate taxes, charges or
assessments levied or assessed during the original and all renewal terms upon
and against the Leased Premises in excess of the cost of such taxes and
assessmentscharged or assessed upon or against the Leased Premises for the year
Year for Taxes and Assessment; provided however, that for the first and final
calendar years of the original or renewal terms Tenant shall be liable for the
reimbursement of such excess cost only for the proportionate part of such years
that it is in possession of the Leased Premises. The amount of such additional
rents, if any, shall be due and payable thirty (30) days after notification from
Landlord or its agent of the amount due.
7. USE OF LEASED PREMISES:
Tenant shall use the Leased Premises solely for pharmaceutical research and
development and in strict accordance with all applicable laws, ordinances and
regulations of governmental authorities. Tenant shall use the Leased Premises
for no other purpose without prior written consent of the Landlord. Tenant will
not use or permit or suffer the use of the Leased Premises for any unlawful or
offensive business or purpose. Tenant will not, without the prior written
consent of Landlord, use or permit the walls, fences, roof or any other part of
the Leased Premises to be used for advertising purposes.
(8) Conduct expeditiously, to the reasonable satisfaction of Lessor,
and in accordance with any applicable Environmental Law any response action
necessary to remove, remediate, clean up, or xxxxx any Release, threatened
Release, or disposal of a Hazardous Material at Lessee's expense to the extent
such Response Action is attributable to events or conditions which arose on or
after the Lease commencement date;
(9) Upon the written request of the Lessor, timely provide, at Lessee's
expense, a Phase 1 environmental site assessment of reasonable scope, form, and
depth by a consultant reasonably approved by Lessor as to (a) any matter to the
extent such matter arisen during the Lease term and (i) for which notice to
Lessor is required to be provided pursuant to the requirements of this Addendum
or (ii) which may reasonably be believed by Lessee to form the basis of an
Environmental Claim in connection with the Premises. If such a requested
environmental report is not delivered within forty-five (45) days reasonable
cost of which shall be payable by Lessee on demand and shall be treated as
additional rent under the Lease;
(10) allow Lessor and its representatives from time to time, at Lessor's
reasonable discretion and expense, to inspect the Premises and conduct an
environmental assessment, including, without limitation, to facilitate the sale
or leasing of the Premises;
(11) promptly provide or otherwise make available to Lessor any
reasonably requested Environmental Record concerning the Premises which Lessee
possesses or can reasonably obtain;
(12) remove from the Premises, at Lessee's sole expense, by the Lease
termination date any Hazardous Materials or equipment to manufacture, generate,
transport, treat, store, Release, dispose, or handle any Hazardous Material used
by Lessee or in the course of Lessee's business; and
(13) upon vacating the Premises, Lessee shall either (a) certify to
Lessor in writing that the Premises are in compliance with any applicable
Environmental Law, there has been during the term no Release on or in the
Premises, and the Premises are free of all Hazardous Material or (b) Lessee
shall deliver to Lessor within thirty (30) days of the Lease termination date a
phase 1 environmental site assessment of reasonable scope, form and depth by a
consultant reasonably approved by Lessor.
C. Indemnification and Waivers. Lessee shall indemnify, defend, hold
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harmless, and hereby waives any claims for contribution against, Lessor for any
Damages (excluding Damages caused by Lessor and his agents and events or
conditions existing prior to the Lease commencement date) to the extent they
arise from:
(a) events or conditions which existed on or after the Lease
commencement date and relate to:
(i) any Release, threatened Release, or disposal of any Hazardous
Material at the Premises;
(ii) the operation or violation of any Environmental Law at the
Premises; or,
(iii) any Environmental Claim in connection with Premises; or
(b) the inaccuracy or breach of any representation or warranty by
Lessee in this Addendum or the Lease.
D. Defined Terms. Except as set forth below, defined terms used in
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this Addendum shal have the meaning ascribed to them in the Lease. The terms set
forth below shall have the following meaning:
2
[LOGO] 0000 X. Xxxx Xxxxxx
XXXXXX X. XXXXXXXXX Xxxxxxxx, XX 00000
Phone 000.000.0000
Fax 000.000.0000
AGENCY DISCLOSURE
Virginia law and regulations require real estate agents to disclose their agency
relationships to all prospective customers and clients. In addition to meeting
that requirement, this disclosure is intended to inform customers about agency
relationships and the duties of real estate agents, brokers and firms. For
convenience, Xxxxxx X. Xxxxxxxxx, Inc., and all other real estate agents,
brokers and firms are hereinafter collectively referral to as "licensees" since
they are all required to be licensed by the Virginia Real Estate Board.
Agency is the relationship formed when one person works for or represent another
person by express authority. People whom licensees represent are called clients.
People who receive services from licensees without being represented by the
licensees are called customers. A licensee does not necessarily represent the
person who pays him or her. As a result, a licensee can represent the buyer, but
be paid by the seller, or vice versa. Although agency relationships can be
formed without a written agreement, you should not assume that any person
represents you unless you have a written agreement with such person. The
agreement between the licensee and the client creates a brokerage relationship.
Client Status. As a client, you enter into an agreement with a licensee for that
licensee to represent you. This agreement may be called a "listing," a
"managemant agreement," a "buyer broker agreement," or an "agency agreement,"
depending on whether you are a seller, landlord, buyer, or tenant. You are then
the licensee's client. If the agreement is an exclusive agreement, you are
required to work through that licensee. The licensee will generally be entitled
to a commission if you buy, sell, or lease (as appropriate) property, even if
you do not use the services of the licensee. The licensee is required to give
you advice as to price and other matters and to disclose any material
information known to the licensee about the property or the transaction. The
licensee will also help you to negogiate favorable terms. The licensee is also
required not to disclose to other parties any personal of financial information
about you or any other information you ask to be kept confidential.
Customer Status. As a customer, you do not sign an agreement with a licensee
(although the licensee is still required to obtain this Agency Disclosure Form
executed by you). You are then the licensee's customer. The licensee may
represent the other party in the transaction, who will be the licensee's client.
You are not legally required to work through the licensee, and the licensee will
only be entitled to a commission if you buy, sell or lease (as appropriate)
property through the licensee. The licensee can give you general advice and is
required to treat you honestly and disclose material facts known to the licensee
regarding the physical condition of the property, but the licensee generally
cannot give advice regarding price or assistance in negotiating favorable terms.
The licensee is required to disclose to its client any information which it
knows about you which might be helpful to the client. If you will be a customer,
you should be aware that there may be other relevant information concerning the
transaction which may be obtained from other sources.
Additional Duties of Licensees. In addition to the duties that are described
above and any duties included in the agreement between the licensee and the
client, a licensee has certain duties under the Virginia law and the Virginia
Real Estate Board regulations. A licensee must promote the interests of its
client by seeking a buyer or tenant or an appropriate property for its clients,
although a licensee is not required to continue these efforts after a contract
has been signed, and by timely presenting all written offers and counter-offers.
A licensee must account to its clients for all money and property which the
licensees receives in which the client has an interest. Before a licensee enters
into a brokerage relationship, the licensee must advise the prospective client
of the type of relationship which is proposed, the licensee's compensation and
whether the licensee will share that compensation with a licensee who represents
another party to the transaction. A licensee owes its clients a duty of ordinary
cure.
Dual Agency. Dual Agency, or Dual Representation, is the situation which exists
when the same licensee represents both the buyer and the seller or the landlord
and the tenant. This generally occurs where a buyer or a tenant which is a
client of a licensee becomes interested in a property which is listed with the
same real estate company. This leads to conflicts of interest, which Virginia
law permits licenses to handle in two different ways. The first alternative is
Simple Dual Agency. With this alternative, the broker and all salespersons
continue to represent both parties, but they do not share any confidential
information. The other alternative involves the use of Designated
Representatives. With this alternative, the broker is still a dual agent, but
separate agents are named to represent the buyer and the seller or the landlord
and the tenant, and these agents represent their respective clients as if the
agents work for separate companies. Both agents must give their best advice and
keep the confidences of their clients. Licensees are required by law to disclose
to both parties whenever a dual agency relationship arises and any time
designated representatives are used, and all parties must then sign a Disclosure
of Dual Repreentation or Disclosure of Use of Designated Representatives form.
Firm Policies. Xxxxxx X. Xxxxxxxxx, Inc., represents both buyers and sellers and
landlords and tenants. In cases of dual agency, Xxxxxx X. Xxxxxxxxx, Inc., uses
designated representatives whenever possible. When representing sellers,
landlords, and optionors, Xxxxxx X. Xxxxxxxxx, Inc., has a policy of cooperating
with both licensees who work with the other party as customers and licensees who
work with the other party as clients unless otherwise instructed by the Firm's
client. When working with buyers, either as customers or clients, the policy of
Xxxxxx X. Xxxxxxxxx, Inc., is to show properties listed with Xxxxxx X.
Xxxxxxxxx, Inc., and other real estate firms.
This is not an agreement, but only a disclosure form.
DISCLOSURE OF BROKERAGE RELATIONSHIP
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I acknowledge that Xxxxxx X. Xxxxxxxxx, Inc., and Xxxxx X. Xxxx and Xxxxx Xxxx
(Name of Salesperson) have disclosed to me that they represent the following
party in this real estate transaction: Landlord
The commission for the transaction contemplated between the undersigned will be
paid by: Landlord
Property: 0000 Xxxxxx Xxxx, Xxxxxxx XX
3/3/98 Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx Discovery Therapeutics, Inc.
------- ------------------- --------------------- ----------------------------
Date Printed Name Signature Company
Xxxxx X. Xxxx /s/ Xxxxx X. Xxxx
_______ ------------------- ---------------------
Date Printed Name Signature
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ADDENDUM TO INDUSTRIAL LEASE
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This Addendum to Industrial Lease made this ____ day of __________, 1994
("Addendum") is attached to, made a part of and supersedes all inconsistent
provisions of that certain Industrial Lease of even date herewith (the "Lease")
among Xxxxxx X. Xxxxxx, as Lessor, and Discovery Therapeutics, Inc., a Delaware
corporation, as Lessee.
A. Representations and Warranties of Lessee. Lessee represents and
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warrants on the date hereof and throughout the term of the Lease that:
(1) Lessee shall comply with any applicable Environmental Law;
(2) Lessee shall obtain all Governmental Approvals required for its
intended operations at the Premises by any applicable Environmental Law; and
(3) Lessee shall use no material quantity of any Hazardous Material and
conduct no Hazardous Material Activity at the Property, except as set forth on
Schedule A attached hereto.
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B. Covenants and Rights of Lessee. Lessee shall:
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(1) maintain the Property in compliance in all respects with any
applicable Environmental Law and be responsible for making any notification or
report concerning the Premises to any Governmental Authority required to be made
by any applicable Environmental Law;
(2) not assign or sublease any portion of the Premises, except on terms
and conditions concerning environmental, health, and safety matters which are
satisfactory to Lessor, in Lessor's sole discretion;
(3) obtain and maintain in full force and effect all material Governmental
Approvals required by any applicable Environmental Law for operations at the
Premises;
(4) expeditiously sure, to the reasonable satisfaction of Lessor, any
violation of applicable Environmental Laws at the Premises at the expense of
Lessee to the extent such violation is attributable to events or conditions
which arose on or after the Lease commencement date;
(5) not create or operate at the Premises any hazardous waste management
facility or solid waste disposal facility as defined pursuant to RCRA or any
comparable state law;
(6) without the prior written consent of Lessor, not manufacture, use,
generate, transport, treat, store, Release, dispose, or handle any Hazardous
Material at the Premises except as set forth on Schedule A attached hereto;
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(7) within two (2) business days, notify Lessor in writing of and provide
any reasonably requested documents upon learning of any of the following which
arise in connection with the Premises;
(a) any liability for response or corrective action, natural resource
damage, or other harm pursuant to CERCLA, RCRA, or any comparable state law;
(b) any Environmental Claim;
(c) any violation of an Environmental Law or Release, threatened
Release, or disposal of a Hazardous Material;
(d) any restriction on the ownership, occupancy, use, or
transferability arising pursuant to any (i) Release, threatened Release, or
disposal of a Hazardous Substance or (ii) Environmental Law; or
(e) any environmental, natural resource, health, or safety condition
which could materially impair the condition of the Premises or could have a
Material Adverse Effect.
15. RENEWAL:
It is hereby understood and agreed that a written notice of three (3)
months prior to the end of said term or any renewal or continuance thereof from
either party to the other shall be necessary to terminate this Lease as the end
of said term, or at the end of any renewal or continuance thereof, and in the
event that not such notice shall be given, then this Lease shall be continued in
full force and effect from year to year at the rent then in force and subject to
all the covenants, terms and conditions herein contained including this
paragraph and any rental escalation provisions contained in this Lease.
16. HOLDING OVER:
Tenant shall pay to Landlord an amount as base monthly rental equal to
200% of the base monthly rental herein provided during each month of portion
thereof for which Tenant shall retain possession of the Leased Premises or any
part thereof after the expiration of the term or of Tenant's right of
possession, whether by lapse of time or otherwise, and also shall pay all
damages sustained by Landlord, whether direct or consequential, on account
thereof. Such hold over shall be as a tenant at will and all of the terms and
provisions of this Lease shall be applicable during such period. No holding over
by Tenant, whether with or without consent of Landlord, shall operate to extend
this Lease except as may be herein provided. The provisions of this clause shall
not be held as a waiver by Landlord of any right of re-entry, or any other
right of Landlord as provided under this Lease; nor shall the receipt of said
payment or any part thereof, or any other act in apparent affirmance of tenancy,
operate as a waiver of the right to forfeit this Lease and the Term hereby
granted for the period still unexpired, for any breach of any of the covenants
herein or any other of Landlord's rights hereunder.
17. INSPECTION BY LANDLORD:
Tenant shall permit Landlord, its agents, or employees to inspect the
Leased Premises and all parts thereof during business hours and to enforce and
carry out any provision of this Lease Agreement and for the further purpose of
showing the Leased Premises to prospective tenants and purchasers and
representatives of lending institutions. During the last three (3) months of the
original term and all renewals of extensions thereof, Landlord shall have the
right to place "For Rent" signs in conspicuous places on the Leased Premises and
to otherwise advertise the Leased Premises for rent, in addition to having the
rights of entry and inspection set forth herein.
18. DEFAULT BY TENANT:
The happening of any of the following enumerated events shall constitute
a default for which Landlord, in addition to other right or remedies it may
have, shall have the immediate right of re-entry without service of notice or
resort to legal process and without Landlord being guilty of trespass, or
becoming liable for any loss or damage which may by occasioned thereby. (a)
failure of Tenant to pay any rent due hereunder within ten (10) days after
written notice to Tenant of such failure; (b) vacation of the Leased Premises by
Tenant or advertising by Tenant in any manner that would indicate or lead the
public to believe that Tenant was going out of business or intending to vacate
the Leased Premises; (c) the filing by, on behalf of or against Tenant, of any
petition or pleading to declare Tenant insolvent or unable to pay its debts or
meet its obligations under the laws of the United States or any state; or a
receiver of the property of Tenant is appointed; or the levy of execution or
other taking of property, assets or the leasehold interest of Tenant by process
of law or otherwise in satisfaction of any judgment, debt or claim against
Tenant; or (d) failure of Tenant to perform any of the other terms, conditions
or covenants of this Lease agreement for more than ten (10) days after written
notice of such failure shall have been given to Tenant.
Should Landlord elect to re-enter and terminate Tenant's use of the
Leased Premises as herein provided, or should Landlord take possession pursuant
to legal proceedings or pursuant to any provisions under law, Landlord may
either terminate this Lease or it may from time to time without terminating
this Lease, make such alterations and repairs as may be necessary in order to
relet the Leased Premises, and relet the Leased Premises or any part thereof for
such term or terms (which may be for a term extending beyond the original or
renewal terms of this Lease) and at such rent and upon such other terms and
conditions as Landlord, in its sole discretion may deem advisable. Upon each
such reletting all rent received by Landlord from such reletting shall be
applied, first, to the payment of any indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any costs and expenses for
such repossession and reletting, including brokerage fees and attorney's fees
and costs of alterations and/or repairs, third, to the payment of rent due and
unpaid hereunder, and the residue, if any, shall be held by Landlord and applied
in payment of future rent as the same may become due and payable hereunder. If
the Leased Premises are not relet as aforesaid, or if the rent received for such
reletting during any month be less than that to be paid during the month by
Tenant to Landlord hereunder, Tenant shall promptly pay the rental due hereunder
or any such deficiency as the case may be to Landlord. Such deficiency shall be
calculated and paid monthly. No such re-entry or taking possession of the Leased
Premises by Landlord shall be construed as an election on its part to terminate
this Lease unless a written notice of such election be given to Tenant or unless
the termination he decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach. Tenant will
pay Landlord and Agent respectively all expenditures incurred by them in
enforcing the provisions of this Lease including reasonable fees of attorneys
and others employed by Landlord of Agent.
Except as expressly herein provided to the contrary, any amount due to
Landlord not paid when due shall bear simple interest at twelve percent (12%)
per annum.
All of this foregoing remedies shall be in addition to any other rights
Landlord may have at law or in equity, and waiver of one default shall not be
deemed to be a waiver of any subsequent default.
19. SUBORDINATION OF LEASE:
This Lease is made, and accepted by the Tenant, subject to subordinate
in law and in equity to any existing, future and/or new mortgages, and/or
deeds of trust secured by the land and building of which the Leased Premises are
a part, or which may at any future time be placed thereon, and to any
extensions, modifications and renewals thereof, and to the prior right of the
mortgagees or lenders thereunder. If required by the Landlord, the Tenant will
execute, acknowledge and deliver any and all agreements subordinating this Lease
to any deed of trust or mortgage now thereafter executed, secured by the said
land and said buildings. Within ten (10) days after request therefore by
Landlord, Tenant agrees to deliver in recordable form a certificate prepared by
Landlord to any proposed mortgages or purchaser of the Leased Premises or to
Landlord certifying (if such is the case) that this Lease is in full force and
effect, and that there are no defenses or offsets thereto, or stating those
claimed by Tenant, and such other facts related to this Lease, the Leased
Premises or Tenant as Landlord may request. If Tenant does not execute and
return such certificates as required above. Tenant hereby irrevocably appoints
Landlord as its attorney-in-fact to execute such certificate on behalf of
Tenant.
20. HAZARDOUS SUBSTANCE:
Hazardous substance issues are covered in the attached Addendum.
LIMITATION OF LANDLORD'S OBLIGATION:
Landlord shall have no liability in Tenant by reason of any
inconvenience, annoyance or injury to business arising from Landlord, other
Tenants or others in their activities, making repairs, alterations, additions or
improvements in or to a portion of the building or the Leased Premises, to
fixtures, appurtenances, or equipment thereof, and no liability upon Landlord
for failure of Landlord or others to make any repairs, alterations, additions or
improvements in or to a portion of the building or the Leased Premises, or the
building's fixtures, appurtenances, or equipment thereof. As a material part of
the considerations to Landlord. Tenant further assumes all risk of damage to
property or injury to persons of about the Leased Premises arising from any
cause, and Tenant hereby waives all claims in respect thereof against Landlord
and Agent, except any claim arising out of Landlord's gross negligence or
willful misconduct.
AGENT'S COMPENSATION:
In consideration of Agent's services in procuring this Lease and as
a covenant running with the land upon which the Leased Premises is located,
Landlord covenants with, and for the benefit of, Agent, as follows: Agent shall
receive a commission of six percent (6%) of the rent
8. CONDITION OF LEASED PREMISES:
Tenant has examined and is satisfied with the present condition of the
Leased Premises and the equipment thereon, if any. No representation has been
made to Tenant, or Tenant's agents, by Landlord, or Landlord's agents,
concerning the condition of the Leased Premises (and the equipment thereon, if
any) or any particular use that can be made thereof. Neither Landlord nor Agent
shall be under any duty to instruct Tenant or others as to the use of any
equipment on the Leased Premises. Tenant acknowledges that the Leased Premises
are suitable for the proposed business use including being in compliance with
all ordinances, regulations, zoning and municipal or State law as relates to
Tenant's intended use of the Leased Premises.
9. ASSIGNMENT, SUBLETTING AND MORTGAGING:
Tenant shall not assign this Lease or sublet the Leased Premises, in whole
or in part, without Landlord's prior written consent. If consent to assign or
sublease is obtained, no such assignment or sublease shall in any way release or
relieve Tenant or Guarantor from any of its covenants or undertakings contained
in this Lease Agreement, and in all cases under this paragraph, Tenant and
Guarantor shall remain liable on this Lease during the original and all renewal
terms. Tenant's request for consent to any subletting or assignment of this
Lease shall be accompanied by a written statement setting forth the details of
the proposed sublease or assignment and any other information Landlord deems
relevant. Landlord shall have the right to (a) withhold consent, if reasonable;
(b) grant consent; or; (c) terminate this Lease as of the effective date of such
sublease or assignment, in which case Landlord may elect to enter into a direct
lease with the proposed assignee or subtenant. Tenant shall be liable for
reasonable fees incurred by the Landlord in connection with an assignment,
subletting or mortgage of the Leased Premises.
10. UTILITIES
During the term of this Lease, Tenant shall promptly pay all fuel, water,
gas, electricity, sewerage, telephone and other utility bills, as the same
become due, it being understood and agreed that the Tenant shall promptly make
all required deposits for meters and utilities service. Landlord shall not be
liable for any interruption or failure in the supply of any utility to the
Leased Premises.
11. INSURANCE AND INDEMNITY:
Tenant will indemnify and save harmless Landlord and Agent from any and all
liability, damage, loss, expense, cause of action, suits, claims, of judgments
arising from injury to person or property including, without limitation,
environmental liabilities on the Leased Premises, or upon the adjoining
sidewalks, or otherwise resulting from the use of the Leased Premises. Tenant
covenants that it will keep in force at is own expense at all times during the
original and all renewal terms of this Lease in companies and in form acceptable
to Landlord with respect to the Leased Premises insurance covering Landlord and
Tenant and Agent as named insureds with combined minimum limits of One Million
Dollars ($1,000,000.00) per occurrence, and Tenant shall deliver to Landlord or
Agent a certificate of insurance showing the same to be in force and effect.
If Tenant shall not comply with its covenant to maintain insurance as
provided herein, Landlord may, at its option, cause insurance as aforesaid to be
issued, and, in such event, Tenant shall promptly pay when due the premiums for
such insurance as additional rent hereunder.
Tenant will pay, as additional rent hereunder, all excess insurance
premiums (i.e., premiums in excess of the usual premiums for a non-hazardous
risk) required to be paid by Landlord on any buildings on the Leased Premises by
reason of Tenant's use or occupancy thereof within thirty(30) days from
notification from Landlord or its Agent of the amount due.
12. PERSONAL PROPERTY:
In addition to all other remedies provided by law, Landlord shall have a
lien against all personal property on the Leased Premises, and insurance
proceeds, if any collected therefore, as security for the payment of the rent
and default in obligations hereunder. Tenant shall repair or reimburse Landlord
for the cost of repairing any damages to the Leased Premises resulting from the
installation or removal of personal property of Tenant.
13. REPAIRS AND ALTERATIONS:
Tenant shall, at is expense, during the term of this Lease, keep the Leased
Premises in good order and condition, and perform all repairs and maintenance
that become necessary in or about the Leased Premises including, without
limitation, plumbing and electrical systems and procuring and maintaining
service contracts for the heating and/or air conditioning systems. Tenant shall
not make any alterations of, additions to, or changes in, the Leased Premises or
equipment without the prior written consent of Landlord, which consent shall not
be unreasonably withheld, and all alterations, changes, and improvements by
whomsoever made, shall be the property of Landlord. Nothing contained in this
paragraph shall be construed as requiring Landlord to make any repairs except
repairs of a structural nature. Landlord shall maintain and make all necessary
structural repair to the foundations, load bearing walls, and roofs.
Tenant shall comply with all applicable laws and regulations of
governmental authorities with respect to the use of the Leased Premises and to
any work, except repairs of a structural nature, which may be ordered by such
governmental authorities; but if Tenant, after notice ordering the work, fails
to comply with reasonable promptness, Landlord, without notice to Tenant, may do
such work and collect the cost thereof from Tenant as additional rent hereunder.
If Landlord is required to xxxxx any nuisance on the Leased Premises. Landlord
may do so without notice to Tenant and Tenant shall pay all costs thereof as
additional rent hereunder within thirty(30) days from notification from Landlord
or its Agent of the amount due.
Tenant shall, on the last day of the original or renewal term, or upon the
sooner termination of this Lease, peaceably and quietly surrender the Leased
Premises and equipment to Landlord, broom-clean, including all improvements,
alterations, rebuildings, replacements, changes or additions placed by Tenant
thereon, in as good condition and repair as the same were in at the commencement
of the original term, normal wear and tear accepted.
14. DESTRUCTION OF LEASED PREMISES, CONDEMNATION:
If all or any portion of the Leased Premises are damaged or destroyed by
fire or other casualty covered by insurance, or condemned by public authority,
whether by eminent domain or otherwise, notwithstanding any Virginia law to the
contrary, then (1) if totally destroyed or condemned so that the Leased Premises
are rendered untenantable, this Lease shall terminate as of the date of such
destruction or condemnation, and Tenant shall, be liable for the rent only to
the date of such destruction or condemnation, and the entire amount of insurance
proceeds and/or condemnation award for the Leased Premises shall belong to and
be payable to Landlord; or (2) if only partially destroyed or condemned and
still tenantable, Landlord shall, within a reasonable time, repair the Leased
Premises with a reasonable reduction of rent from the date of such partial
destruction or condemnation until there be again premises substantially similar
in value to Tenant as the Leased Premises partially destroyed or condemned.
Landlord's obligation to repair or restore the Leased Premises as stated herein
is conditioned upon (a) all insurance proceeds and/or condemnation award for
the Leased Premises being paid to Landlord, which are sufficient to cover the
cost of said repairs and restorations, and (b) there remaining at least
twenty-four (24) months in the then existing term of this Lease. If Landlord
does not repair the Leased Premises because either conditions (a) or (b) are
not met, Landlord shall so notify Tenant and this Lease shall terminate as of
the date of such partial destruction or condemnation and Tenant shall be liable
for rent only to the date of such partial destruction or condemnation. As used
herein, the date of condemnation shall be the date on which legal title vests
in the condemning authority or the date on which Landlord enters into a
contract for the sale for public use upon the threat of condemnation, whichever
first occurs.
If the improvements shall be damaged or destroyed by any hazard not covered
by insurance, Landlord shall have the option to cancel this lease by giving
written notice of such cancellation to Tenant within thirty(30) days after the
happening of such damage or destruction, but if such option not be exercised,
then Landlord at is own expense shall proceed with due diligence to repair or
restore the improvements to their condition as existed before such damage or
destruction with rent being reduced pro rata in proportion to the decrease in
usefulness of the Leased Premises undergoing repair and restoration; provided,
however, that the cost of repairing any damage or destruction not covered by
insurance which is caused by tenant's fault or negligence shall forthwith be
paid to Landlord by Tenant.
Tenant shall give immediate written notice to Landlord or Agent of any
damage, destruction or condemnation of the Leased Premises, whether in total or
partial.
FIRST ADDENDUM TO LEASE
THIS FIRST ADDENDUM TO LEASE dated January 7, 1999 amends a certain lease dated
February 24, 1998 for an office/warehouse space at 0000 Xxxxxx Xxxx, between
Discovery Therapeutics, Inc. (herein Discovery), Tenant and Xxxxxx X. Xxxxxx,
Landlord.
--------------------------------------------------------------------------------
IT IS COVENANTED and agreed to as follows:
1. The lease for the above referenced property shall be extended until August
31, 1999 at the current monthly rate and terms.
2. Discovery agrees to lease the adjacent suite, currently leased to Vallen
Safety Supply Company (herein Vallen) at 0000 Xxxxxx Xxxx, effective March
1, 1999 through August 31, 1999 at a monthly rate of $1,496.000 through the
term. All the terms and rules of the current lease shall apply to the
tenancy in the Vallen space. This lease extension and lease of additional
space is subject to the execution of a mutual release between Vallen and
Xxxxxx nullifying their current lease.
3. It is understood that Discovery plans to create an opening between the
spaces to connect the areas. Discovery will gain the approval of the design
for the opening prior to the commencement of this work or any other future
alterations. If Discovery fails to extend the lease beyond 8/31/99, then
they will be responsible for restoring the demising wall to it's origanal
condition.
4. Discovery may begin to utilize the Vallen space to stage move in and the
installation of communications equipment beginning on or about February 1,
1999 as Vallen has agreed. Discovery agrees to indemnify and hold Xxxxxx
and Vallen harmless for any activity in the Vallen space prior to March 1,
1999 and name Xxxxxx X. Xxxxxx as additional insured on their liability
policy for this additional risk prior to entering the Vallen space.
IN WITNESS WHEREOF, this Addendum has been executed by the parties hereto
pursuant to valid authority as of the below dates.
LESSOR: /s/ Xxxxxx X. Xxxxxx Date: 1-18-1999
----------------------- ------------
Xxxxxx X. Xxxxxx
LESSEE: DISCOVERY THERAPEUTICS, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
----------------------
Its: V.P., OPERATIONS (Title)
------------------
SECOND ADDENDUM TO LEASE
THIS SECOND ADDENDUM TO LEASE dated July 14th, 1999 amends a certain lease dated
February 24, 1998 for an office/warehouse space at 0000 Xxxxxx Xxxx, between
Discovery Therapeutics, Inc. (herein Discovery), Tenant and Xxxxxx X. Xxxxxx,
Lanlord.
--------------------------------------------------------------------------------
IT IS COVENANTED and agreed to as follows:
1. The lease for the above referenced property (both the original lease
space and the "Vallen" space) shall be extended until August 31, 2001.
This monthly rent shall remain at its current level of $4,428.00 until
August 31, 2000 and will increase to $4,605.00 per month from September
1, 2000 through August 31, 2001.
2. Paragraph 13 of the lease shall be amended as follows: The tenant shall
be responsible for any HVAC repair per occurrence of up to $500.00,
Landlord shall pay any amount over $500.00 per occurrence.
3. All other terms and conditions shall remain unchanged.
IN WITNESS WHEREOF, this Addendum has been executed by the parties
hereto pursuant to valid authority as of the below dates.
LESSOR: /s/ Xxxxxx X. Xxxxxx Date: 7/29/99
----------------------- ----------
Xxxxxx X. Xxxxxx
LESSEE: DISCOVERY THERAPEUTICS, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
---------------------
Its: V.P. OPERATIONS (Title)
----------------
4. The base year with respect to taxes and assessments for paragraph 3 of
the lease shall be 1998.
THIRD ADDENDUM TO LEASE
THIS THIRD ADDENDUM TO LEASE dated September 12th, 2000 amends a certain lease
dated February 24, 1998 for an office/warehouse space at 0000 Xxxxxx Xxxx,
between Discovery Therapeutics, Inc. (herein Discovery), Tenant and Xxxxxx X.
Xxxxxx, Landlord.
--------------------------------------------------------------------------------
IT IS COVENANTED and agreed to as follows:
1. The Landlord agrees to have installed and pay for the cost of the
improvements depicted on Exhibit "A" attached. And further described
on Schedule "A", which is the bid and scope of work prepared by
Xxxxxx & Xxxxxxx, Inc.
2. The term of the above mentioned Lease as was amended in the Second
Addendum, shall be further amended as follows: The Lease shall be
extended for a three year term commencing December 1, 2000 until
November 30, 2003. The rent for the initial 12 month term shall be
$5,851.00 and shall escalate as provided in the lease.
3. Tenant shall have the right to cancel the lease at any time during
the three year extension by giving the Agent written notice 90 days
before the cancellation date. In the event Tenant cancels the lease,
Tenant shall pay a cancellation fee of three months of the current
rent and the remaining additional rent for the improvements being
made by Landlord (i.e., $1,246.00/month multiplied by the number of
months remaining of the three year term).
All other terms and conditions shall remain unchanged.
IN WITNESS WHEREOF, this Addendum has been executed by the parties hereto
pursuant to valid authority as of the below dates.
LESSOR: /s/ Xxxxxx X. Xxxxxx Date: 9/21/00
----------------------- ------------
Xxxxxx X. Xxxxxx
LESSEE: DISCOVERY THERAPEUTICS, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
----------------------
Its: V.P., OPERATIONS (Title)
------------------
EXHIBIT "A"
------------
OFFICE PLAN APPEARS HERE
Lab & office
Expansion
Scale 1/8" = 1"
FRONT EXISTING OFFICE
*Sink roughins
SCHEDULE "A"
------------
XXXXXX & XXXXXXX, INC.
General Contractor
0000-X X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
(000) 000-0000 fax
-----------------------------------------------------------------------------------
ITEM UNITS UNIT UNITS TOTAL $/SF HEADING
REQ'D COST COST COST TOTALS
-----------------------------------------------------------------------------------
HVAC: (Allowance) $ 2,975
Rework Existing 1 2975.00 LS 2,975.00 2.58
PLumbing: (Allowance) $ 5,700
Sink Rough In 2 625.00 EA 1,250.00 1.09
HW Heater 1 750.00 EA 750.00 0.65
ADA Shower 1 3500.00 EA 3,500.00 3.04
ADA Access 1 200.00 EA 200.00 0.17
Doors / Hardware: (Allowance) $ 4,830
Blding Standard 8 525.00 EA 4,200.00 3.66
Hardware 8 50.00 EA 400.00 0.35
Bifolds 2 115.00 EA 230.00 0.20
Wallcovering: (Allowance) $ 2,251
Partitions (Flat) 4554 0.29 SF 1,320.66 1.15
Stain Doors 10 65.00 EA 650.00 0.56
Jambs 8 35.00 EA 280.00 0.24
-----------------------------------------------------------------------------------
SUBTOTAL $31,508
8% General Conditions 2,521
10% Overhead & Profit 3,403
===================================================================================
TOTAL $37,432
NOTES:
This price is for budget purposes only.
No asbestos testing or removal included.
Please note where allowances were used.
Prices does not include low voltage wiring, permit or demo.
No work on warehouse side of new partitions.
Sinks supplied & installed by others.
Price does not include removing warehouse equipment or supplies.
C&D assume HVAC & electrical system is sufficient.
