EX-10.4
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dex104.htm
COMMERICAL LEASE AGREEMENT
Exhibit 10.4
COMMERCIAL LEASE AGREEMENT
This agreement is hereby entered
this the 9th day of August, 2000 by and between Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, (hereinafter collectively “Lessor” ), and Biolex,
Inc., a Delaware corporation (hereinafter “Lessee.”)
WITNESSETH
WHEREAS, Lessor owns that certain real property and improvements as described in Exhibit “A” hereto (hereinafter “Leasehold
Premises”), same having the address of 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx; and
WHEREAS, Lessee is in need
of various office, laboratory, and other business work areas; and
WHEREAS, both Lessor and Lessee will benefit from certain improvements
to be made on the building located on the Leasehold Premises; and
WHEREAS, Lessor is prepared to finance such improvements so long as its
costs in doing so may be recouped and Lessee is prepared to reimburse Lessor for the costs of such improvements,
DEFINITIONS
As used herein, the following definitions will be applicable:
“New Fixtures” shall mean any improvements, additions, or enhancements Lessor has made to the Leasehold Premises subsequent to the execution of this lease, the cost of which has been reimbursed to Lessor by Lessee.
“Lessor” shall mean Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx, their heirs, successors and assigns, as well as then designees.
“Lessee” shall mean the Biolex, Inc. corporation, a Delaware corporation.
“Lessee and/or its affiliates” shall mean Biolex, Inc., a Delaware corporation and/or its agents, affiliates, customers, invitees, employees, officers, directors and contractors, or any other person in or about the Leasehold
Premises other than Lessor or its invitees.
“Leasehold Premises” shall mean all land and the improvements located thereon, at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx as more fully described in Exhibit “A” hereto.
IT IS THEREFORE agreed, for good and valuable
consideration as set out in this agreement, as follows:
GENERAL PROVISIONS, PAYMENTS, TERM
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equipment on the Leasehold Premises. Lessor hereby represents and warrants that to its knowledge, the Leasehold Premises are in compliance with all
applicable laws, including without limitation the Americans With Disabilities Act of 1990. Should it be determined during the term of this agreement that the Leasehold Premises are not in material and substantial compliance with applicable law, such
noncompliance shall not, in and of itself, constitute a breach of this agreement by Lessor. Instead, Lessor warrants that it will, upon reasonable notice of, such noncompliance, take timely and reasonable action to correct such noncompliance, Lessor
further represents ,and warrants that each of the Heating, Ventilating and Air Conditioning (“HVAC”), plumbing and electrical systems located in the office portion of the Leasehold Premises are in good working order and repair and the
Lessor knows of no problem that currently needs repair with respect to any of these systems. Lessor hereby agrees to make any and all repairs necessary to the HVAC system in the office portion of the Leasehold Premises for the first six months of
this agreement.
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MAINTENANCE, INSURANCE, UTILITIES AND TAXES
6. | Maintenance Responsibilities and Utilities. Lessee is to be responsible for all maintenance of the Leasehold Premises, interior walls, underground pipes, roof and building exterior
excluded and shall keep same in good repair during the term of this agreement. Lessor will maintain responsibility for the interior walls, roof, underground pipes, and building exterior, and shall keep the same in good repair during the term of this
agreement, assuming normal wear and tear. Notwithstanding Lessor’s obligation hereunder, should damage be caused to the interior walls, roof, underground pipes or building exterior by the acts of Lessee or its affiliates, normal wear and tear
excluded, Lessee shall be responsible for repair of such damage. Other than maintenance of the interior walls, roof, underground pipes and building exterior, Lessor shall incur no expense nor have any obligations of any kind whatsoever, other than
as set out elsewhere in this agreement or as otherwise provided by applicable law. Lessee is responsible for and shall pay promptly when due all charges for utilities including but not limited to water, sewer, electricity, telephone, and fuel
consumed on the Leasehold Premises, and any and all applicable taxes thereon. |
7. | Notification. Lessee, being present on the Leasehold Premises, shall have an affirmative and continuing reasonable duty to notify Lessor promptly of any problems with,
damage to, or unusual conditions involving the interior walls, roof, underground pipes and building exterior of the Leasehold Premises which require or might require maintenance or repair by Lessor. Failure of Lessee to so notify Lessor, where such
notification would have allowed Lessor to prevent harm or damage related thereto, either to the Leasehold Premises or to the property of Lessee, in addition to any other rights of Lessor under applicable law, shall relieve Lessor of any obligation
under this agreement to reimburse, indemnify or hold harmless Lessee for any costs, damages, claims, causes of action, or attorney’s fees which may arise pursuant to said damage. |
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9. | Liability Insurance. The Lessee, at its sole expense, shall obtain and keep in force during the entire term of this agreement, including any extension hereunder, an
occurrence policy of comprehensive public liability insurance insuring the Lessor and the Lessee against any liability arising out of the ownership, use, occupancy, or maintenance of the Leasehold Premises and any equipment located thereon. Such
insurance shall be in an amount of not less than one million ($1,000,000.00) for any injury to, or death of, more than one person in any one accident or occurrence. Such insurance shall further insure the Lessor and Lessee against liability for
property damage in an amount of one hundred thousand dollars ($100,000.00). In no event shall a “claims-made” liability insurance policy be deemed to meet the requirements of this paragraph unless agreed to, in writing, by the Lessor.
Should Lessee fail to procure said insurance, Lessor may, at its option, procure and maintain said insurance, at the sole expense of Lessee as set out above. |
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IMPROVEMENTS/MODIFICATIONS TO LEASEHOLD PREMISES
13. | Leasehold Premises Improvements/Modifications. Upon commencement of this agreement, Lessee shall retain the services of a competent licensed professional engineer to
formulate a design plan that incorporates all related Heating/Ventilation/Air Conditioning, electrical, plumbing, and similar structural improvements/modifications necessary for Lessee’s intended use of the Leasehold Premises. Upon submission
of those plans to Lessor, and subject to the other provisions contained herein, Lessor will obtain competitive bids from appropriate contractors, negotiate a contract price and award the contract, subsequent to approval by Lessee. Such approval
shall not be unreasonably withheld, conditioned or delayed by Lessee. After award of the contract, Lessee shall designate an internal project manager to supervise the day to day construction. Any changes to the initial plans may be made only after
written approval by Lessor, which approval will not be unreasonably withheld, conditioned or delayed. Lessor and the contractor shall not amend such contract after approval by Lessee unless such amendments are approved by Lessee, such approval not
to be unreasonably withheld, conditioned or delayed. |
15. | Lessor to Pay Initial Cost of Approved Improvements/Modifications. After Lessor enters the contact for the approved modifications to the Leasehold Premises, Lessor
shall be responsible for making all payments due under the contract, notwithstanding that such payments are subject to reimbursement by Lessee as set out elsewhere in this agreement. |
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INDEMNIFICATION
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20. | Lessee to Indemnify Lessor, Civil Liability. During the term of this agreement, Lessee does hereby agree and covenant that it will indemnify and hold Lessor harmless
from and against any and all loss, damage and expense (including but not limited to reasonable attorneys’ fees) arising out of or in connection with or incurred by reason of any negligence, action, inaction or other activity or inactivity
conducted or omitted by Lessee and/or its affiliates that does or may result in any claim or cause of action against, or liability of any kind against Lessor, including but not limited to any claim or liability for Federal, State or local taxes,
whether accrued, contingent, or arising out of or with respect to any transaction, matter or thing or action by Lessee occurring during this leasehold. Lessee shall also indemnify and hold harmless Lessor from and against any and all claims arising
from Lessee and/or its affiliates’ use, possession, maintenance, and improvement of the Leasehold Premises, or from the conduct of Lessee and/or its affiliates’ business or from any activity, work or things done, permitted or suffered by
Lessee and/or its affiliates in or about the Leasehold Premises and shall further indemnify and hold harmless Lessor from and against any and all claims arising form any breach or default in the performance of any obligation on Lessee’s part to
be performed under the terms of this agreement, and from and against all costs, reasonable attorneys’ fees, expenses, and liabilities incurred in the defense of any such claim or any action or. proceeding brought thereon; and in case any action
or proceeding be brought against Lessor by reason of any such claim, Lessee, upon notice of same, shall defend Lessor from same at Lessee’s expense; provided however, that Lessee shall not be required to indemnify Lessor under the provisions of
section nineteen (19) for any costs, claims, causes of action, damages or expenses arising solely from the negligence or willful conduct of Lessor. |
21. | Lessor to Indemnify Lessee. Lessor agrees that it will indemnify and hold Lessee harmless from and against any and all loss, claims, damages, and expenses (including
reasonable attorney’s fees) arising out of or in connection with or incurred by reason of any action, inaction or other activity conducted or omitted by Lessor in connection with the ownership of the Leasehold Premises and any breach or default
of Lessor’s obligations under this agreement, except where such harm, loss, claim, damage or expense occurred as a result of a condition or conditions that Lessee was, or should have been, aware of, and where Lessee had failed to give
reasonable notice of same to Lessor, where such notice would have afforded Lessor an opportunity to correct said condition or conditions prior to the harm, loss, damage or expense to Lessee occurring. |
22. | Exemption of Lessor From Liability. Lessee hereby agrees that except for any matter arising out of Lessor’s willful act or omission, or negligence, Lessor shall
not be liable for injury to Lessee’s business or any loss of income therefrom or for damage to the goods, wares, merchandise or other property of Lessee or to any of Lessee’s employees, contractors, invitees, customers, or any other person
in or about the Leasehold Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or from breakage, leakage, obstruction, or other defects of pipes, sprinkler, wires, appliances,
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plumbing, air conditioning, or lighting fixtures, or from any other cause, whether the said damage or injury results from conditions arising upon the
Leasehold Premises, unless Lessor was responsible for maintaining the item or item that caused such damage under the terms of this lease and had previously been notified by Lessee of a pending problem with said item, and then failed to give
reasonable attention to the repair or maintenance necessary to correct that pending problem within a reasonable time.
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24. | Environmental Provisions. In the event there is a violation of any Environmental Law involving any hazardous substance on the Leasehold Premises or any other violation
of any Environmental Law on the Leasehold Premises during the term of this agreement. Lessee expressly guarantees that it will assume all costs incurred to investigate the nature and severity of the adverse environmental conditions, conduct studies
to determine the impact of the adverse environmental condition upon the public health, eliminate the adverse environmental condition, conduct tests following the cleanup in order to determine whether remedial efforts have been successful, and
indemnify and hold harmless the Lessor from claims of third parties as a result of the adverse environmental condition, including reasonable attorneys fees, unless the costs, claims or liabilities arose solely out of the actions or negligence of
Lessor. As used herein, the term “hazardous substance” shall mean any toxic, radioactive, ignitable, reactive, corrosive, contaminating or polluting substance, waste or material including oil, petroleum products and their derivatives,
solvents, polychlorinated biphenyls (“PCBs”) or asbestos, which is now or may in the future be regulated Xxxxxx any Environmental Law. The term “Environmental Law” shall mean any federal, state or local statute, regulation, rule,
ordinance or order now in effect or becoming effective in the fixture relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), emissions,
discharges or releases of pollutants, contaminants, oil, petroleum products and their derivatives, asbestos, solvents, PCB, chemicals, industrial toxic or hazardous substance or solid or hazardous wastes, or the manufacture, processing,
distribution, use, treatment, handling, storage or disposal and transportation of such materials. The term “Environmental Condition” shall mean the presence, whether discovered or undiscovered, in surface water, groundwater, drinking,
water supply, land surface, subsurface strata, buildings or ambient air of any hazardous substance arising out of or otherwise related to the operations or other activities, (including the disposition of such material or substances, except petroleum
products held for resale in approved containers) concluded or |
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undertaken at the Leasehold Premises, or flowing, diffusing, migrating, percolating into, onto or under the Leasehold Premises but not from off-site. Lessor
represents and warrants that it is aware of no unresolved notice, citation, summons or order having been issued, no complaint having been filed, no penalty having been assessed and no investigation or review pending or threatened by any governmental
agency or other entity or party regarding any alleged violation of the Environmental Laws on or about the Leasehold Premises. Lessor further represents and warrants that it has no knowledge of any facts or circumstances related to environmental
matters concerning the Leasehold Premises that may lead to future environmental claims, liabilities or responsibilities against Lessor or Lessee. Lessor further represents and warrants that it has no knowledge of the presence of ally (a) PCBs
or materials containing asbestos in or on the Leasehold Premises or (b) underground storage tanks, abandoned or active, under the Leasehold Premises. Lessor hereby does state that two (2) USTs have been removed from the premises and
sufficient cleanup has been accomplished to receive a NFA(No Further Action) letter from the State UST Section. Lessor agrees to indemnify and hold harmless Lessee from any and all losses, costs, damages, and expenses (including fines, penalties and
reasonable attorney’s fees) related to events or conditions first existing prior to the date of this Agreement, known and unknown, foreseen and unforeseen, and which arise under any Environmental Law, including without limitation the removal of
any asbestos on the Leasehold Premises.
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DEFAULT/TERMINATION/END OF AGREEMENT
26. | Default. Failure of the Lessee to make any payment hereunder, as and when due, where such failure shall continue for a period of five (5) days shall constitute
default hereunder. The failure of Lessee to observe and perform any covenants, conditions, or provisions of this agreement shall also constitute default where such failure shall continue for fifteen (15) days after it becomes known to Lessee by
written notice form Lessor, provided, however, that if the nature of Lessee’s default such that more than fifteen (15) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such
cure within fifteen (15) days and thereafter diligently prosecutes such cure to completion. Filing of bankruptcy by Lessee, the making by Lessee of any general assignment or arrangement for the benefit of creditors, filing a petition for
reorganization, the appointment of a trustee or receiver to take possession of substantially all of Lessee’s assets located at the Leasehold Premises, or the attachment, execution or other judicial seizure of substantially all of Lessee’s
assets located at the Leasehold Premises shall also constitute default. |
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27. | Termination in Event of Default. Lessor shall have, in the event of default by Lessee, in addition to other rights and remedies at law or equity, the right to either
terminate this agreement or to continue this agreement in full force and effect. Unless otherwise provided herein, this agreement shall be terminated only upon Lessor’s notification of Lessee in writing of Lessor’s termination of the
agreement or upon the institution by Lessor of a judicial proceeding for the primary purpose of termination of the agreement which in fact results in a termination of Lessee’s right of possession of the premises. In no event shall the following
actions by Lessor, either before or after abandonment of the Leasehold Premises by Lessee constitute a termination of this lease: maintenance or preservation of the premises, efforts to relet the premises, or appointment of a receiver to protect
Lessor’s interest hereunder. If Lessor elects to terminate this lease, Lessor shall, without liability to Lessee, have the right to immediately reenter the Leasehold Premises, remove all persons and property therefrom, and store any property so
removed in a public warehouse, or elsewhere, at the cost of and to the account of Lessee; provided that the Lessee shall have the right after reasonable notice to monitor the removal and storage of any lab equipment. |
28. | Remedies upon Default. If Lessor terminates this agreement on account of Lessee’s breach or default, Lessee shall pay to Lessor and be liable for (1) all
rents and other charges due and payable at termination plus twelve percent (12%) interest per annum until payment; (2) all rents and other charges which become due and payable between the time of termination and the time of award, less any
rent Lessor has actually received from reletting the premises; and (3) all costs, expenses and losses Lessor incurs by reason of Lessee’s breach or default of this lease, including but not limited to all expenses for repairing or restoring
the premises, all costs associated with reletting the premises, all expenses incurred in retaking the premises, and reasonable attorneys’ fees and court costs. If, upon breach of this agreement by Lessee, Lessor elects to continue with this
agreement, Lessor may, in addition to enforcing any other rights and remedies, exercise all of its rights and remedies hereunder and Lessee shall remain obligated to perform all of Lessee’s obligations hereunder, including without limitation,
timely payment of all rents and other charges. In addition, Lessee shall be liable for Lessor’s reasonable attorneys’ fees and costs incurred by reason of Lessee’s breach or default. |
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30. | Surrender. On the last day of the term of this agreement, or on any sooner termination, the Lessee shall peaceably and quietly surrender the Leasehold Premises and the
fixtures thereon, including those placed by Lessee, except as may be specifically excluded herein or by some other writing between Lessor and Lessee, to the Lessor in the same condition as when the Leasehold Premises was occupied and the fixtures
were completed, broom clean, ordinary wear and tear, and loss by casualty required to be insured by Lessor excepted. The Lessee shall repair any damage to the premises occasioned by the removal of Lessee’s equipment, furnishings, or fixtures
that the Lessee is obligated to remove pursuant to number sixteen (16) above, which repair shall include the patching and filling of any holes as well as the repair of any damages caused thereby, In no event may Lessee remove any of the
fixtures or other improvements/modifications made pursuant to paragraph twelve (12) above. |
DAMAGE TO OR DESTRUCTION
OF PREMISES
31. | Damage or Destruction. If the Leasehold Premises shall suffer an insured loss, Lessee shall, as soon as the Lessee has collected the full amount of insurance proceeds,
commence repairing or rebuilding the damaged part of the Leasehold Premises. Notwithstanding the obligation to rebuild, if the main building located on the Leasehold Premises shall be damaged to such an extent that the estimated costs of repairs and
restoration shall be greater than sixty percent (60%) of the value of the building immediately before said damage, then either Lessor or Lessee shall have the option of terminating this agreement as of the date of the damage by giving written
notice to the other party within fifteen days of the date of such damage. If the lease be so terminated, the insurance proceeds shall, at the option of Lessor, be applied to the demolition and cleanup or replacement of the damaged structure, or be
divided ratably between Lessor and Lessee based upon the amount of this agreement completed. Upon such termination, except as set forth above, Lessor and Lessee’s respective obligations hereunder shall terminate. |
MISCELLANEOUS PROVISIONS
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35. | Chatham County Venue. Any dispute arising hereunder shall be adjudicated solely in the Courts of Chatham County, North Carolina, so long as jurisdiction may be
obtained over the subject matter and the parties thereto. If and only if it is impossible to adjudicate this matter in Chatham County, North Carolina, may the venue for any adjudication be otherwise. |
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This agreement is hereby entered and executed this the 9th day of August, 2000.
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Lessor by | | | | | | | | |
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/s/ Xxxxxx X. Xxxxxxxx
| | (SEAL) | | | | /s/ Xxxxxxx X. Xxxxxxxx
| | (SEAL) |
Xxxxxx X. Xxxxxxxx | | | | | | Xxxxxxx X. Xxxxxxxx | | |
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Lessee Biolex, Inc. by: | | | | | | | | |
| | | | |
/s/ Xxxx-Xxxxx Stomp
| | (SEAL) | | | | /s/ Xxxxxx Xxxxxx
| | (SEAL) |
Xxxx-Xxxxx Stomp | | | | | | Xxxxxx Xxxxxx | | |
President | | | | | | Secretary, Attest | | |
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SEAL-STAMP | | NORTH CAROLINA, Chatham County. |
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| | I, Xxxx X. Xxxxxxx, a Notary Public of the County and State aforesaid, certify that XXXXXX X. XXXXXXXX personally came before me this day and acknowledged the due execution of the foregoing
instrument. |
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| | Witness my hand and official stamp or seal, this 9th day of August, 2000. |
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| | /s/Xxxx X.
Xxxxxxx , Notary Public |
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| | My commission expires: 3/17/04 |
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SEAL-STAMP | | NORTH CAROLINA, Chatham County. |
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| | I, Xxxx X. Xxxxxxx a Notary Public of the County and State aforesaid, certify that XXXXXXX X. XXXXXXXX personally came before me this day and acknowledged the due execution of the foregoing
instrument. |
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| | Witness my hand and official stamp or seal, this 9th day of August, 2000. |
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| | /s/ Xxxx X.
Xxxxxxx , Notary Public |
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| | My commission expires: 3/17/04 |
00
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XXXX.-XXXXX | | XXXXX XXXXXXXX, Xxxxxxx Xxxxxx. |
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| | I, Xxxx X. Xxxxxxx, a Notary Public of the County and State aforesaid, certify that XXXXXX XXXXXX personally came before me this day and acknowledged the due execution of the foregoing
instrument. |
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| | Witness my hand and official stamp or seal, this 9th day of August, 2000. |
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| | /s/ Xxxx X.
Xxxxxxx , Notary Public |
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| | My commission expires: 3/17/04 |
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COMMERCIAL LEASE AGREEMENT
XXXXXX X. XXXXXXXX AND XXXXXXX X. XXXXXXXX
AND BIOLEX, INC.
EXHIBIT A
The interest rate for the
Improvements/Modifications shall be calculated at an interest rate of 7.5 percent per annum above the prime rate. The rate shall be adjusted annually on the anniversary date of this agreement and annually thereafter for changes in the prime rate.
Xxxxxxxx Properties, LLC
P O Box 688
1220 Xxxxxx Xxxxxxx Xxxx
Xxxxx Xxxx, Xxxxx Xxxxxxxx 00000
Phone 000-000-0000
Fax 000-000-0000
E-Mail xxx@xxxxxxxxxxxxxx.xxx
April 14, 2005
Xx. Xxxx Xxxxxx, CFO and SVP of Finance
Biolex, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Subject: 000 Xxxxxx Xxxxxx. Xxxxxxxxx, XX lease
Dear Xx. Xxxxxx:
We are in receipt of your letter dated April 12, 2005 giving us notice of Biolex, Inc. exercise of the renewal option in the
Commercial Lease Agreement dated August 9, 2000.
Thank you for the notification and continuation of the lease. We at Xxxxxxxx
Properties, LLC look forward to a long and mutually beneficial relationship. When Biolex needs to expand further we would like to be involved.
When you need another facility, Xxxxxxxx Properties, LLC would like to be considered to build and lease or purchase and lease the facility for your needs.
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Best regards, |
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/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx |
Member, Manager |
April 12, 2005
VIA
CERTIFIED U.S. MAIL — RETURN RECEIPT REQUESTED
Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx
0000 Xxxxxx Xxxxxxx Xxxx
Xxxxx Xxxx, Xxxxx Xxxxxxxx 00000
| RE: | 000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX Lease—Notice of Exercise of Renewal Option |
Dear Sirs:
Biolex, Inc. (“Biolex”) and Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx (collectively, the
“Landlord”) are parties to that certain Commercial Lease Agreement dated as of August 9, 2000 (the “Lease”), for premises located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx. This letter serves as formal notice of
Biolex’s election to exercise its renewal option under the Lease, as set forth below.
In accordance with Section 2 of the Lease,
Biolex notifies Landlord that it hereby exercises its option to renew the Lease for an additional five (5) year term (the “renewal term”). Thus, the term of the Lease will now extend uninterrupted through July 31, 2010. We
further understand that, pursuant to Section 4 of the Lease, rental payments during the renewal term will be adjusted as of August 1 for each 12-month period of the renewal term.
The Lease remains in full force and effect until the expiration or termination of the renewal term. Please contact me if you have any questions.
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Sincerely, |
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/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx |
CFO and SVP of Finance |
| | | | |
| | 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
| | tel 000.000.0000
fax 000.000.0000
xxx.xxxxxx.xxx
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