EXHIBIT 10.15
LEASE
This Lease Agreement made this eleventh day of February 1997, by and
between AStec Partnership, a Virginia general partnership, Lessor, and Biotage,
Incorporated, a Delaware corporation, Lessee.
W I T N E S S E T H :
That Lessor, for and in consideration of the covenants and agreements
hereinafter set forth and further consideration of the rent which Lessee agrees
to pay, hereby leases and demises unto Lessee, and Lessee hereby takes, accepts
and rents from Lessor. the premises hereinafter set forth for the period, at the
rental, and upon the terms and conditions hereinafter set forth:
1. DEMISED PREMISES: The premises leased hereunder shall consist
of the space currently leased to Lessee in the in AStec Center at 0000 Xxxx
Xxxxxx Extended in Albemarle County, Virginia. Said premises are more
particularly outlined in a diagram attached to this Lease as Exhibit A. Said
premises shall consist of 15,759 square feet. Said premises shall be used by the
Lessee solely as defined in the Special Permit Application and any other related
functions not in conflict with the Special Use Permit application. Any change in
the use of the facility by Lessee must be approved in writing in advance by the
Lessor; Lessor's approval shall not be unreasonably withheld.
2. TERM OF LEASE: This Lease Agreement shall be effective on this
date. The term of this Lease shall begin at 12:01 A.M. on June 5. 1997. (the
Commencement Date) and shall end on June 4,
1
1999.
3. RENT AND DEPOSIT: (a) The total rent due for this lease shall
be $299,421.00 based on a charge of $9.50 per square foot. The rent shall be
payable in twenty-four (24) consecutive monthly installments. The monthly
payments shall be $12,465.88. The first payment of $12,475.88 shall be due and
payable on the Commencement date of this Lease as defined in paragraph 2 above.
Each subsequent payment shall be due on the fifth day of the month. Lessor is
currently holding deposits for $25,205.28, $8,597.34 and $7,564.77 from previous
leases which shall be continued for this Lease. All amounts held by Lessor on
deposit shall be refunded after the termination of this lease provided that the
Lessee fulfills all of the covenants and requirements of the Lease. If Lessee
fails to fulfill any covenants or requirements of this Lease, or damages the
premises in any fashion (excluding normal wear and tear), the damage caused by
Lessee shall be deducted from this deposit. If the damages exceed the amount of
the deposit, Lessor retains the right to avail itself of any other legal
remedies to recover its damages. The deposit shall be refunded within thirty
(30) days of termination of the Lease. The Lessor shall hold the deposit in
trust in a separate federally insured interest bearing account over which the
Lessor alone shall have the power of withdrawal and will not commingle the
deposit with any funds or other property of the Lessor. So long as the Lessee is
not in default under the Lease, the Lessor agrees to pay the Lessee on a
quarterly basis all interest earned on the deposit.
2
4. CORPORATE GUARANTEES: In order to induce the Lessor to accept
this Lease without any individual guarantees, the Lessee agrees to provide the
Lessor with quarterly financial statements.
5. RENEWAL: (a) Lessee shall, provided it is not in default of
any terms and conditions of this Lease, have the option to renew this lease for
one additional period of one year. If Lessee decides to exercise this option,
Lessee shall provide written notice to Lessor of its decision, which notice must
be received by Lessor six months prior to the termination of the original Lease
as set forth in paragraph 2 herein. If Lessee fails to give Lessor the notice
set forth in this paragraph, then Lessee's right to renew in the six months
before expiration of the existing lease term shall be at the exclusive option of
the Lessor only. Thereafter, there shall be no automatic renewal or renewal by
operation of law on this Lease.
(b) Renewal shall be for one twelve month period under
the same terms and conditions contained in this Lease except that during the
renewal lease period Lessee shall pay to the Lessor a base annual rent of
$149,710.50 plus any additional amount as determined in accordance with the
provisions of subparagraph (c), payable in advance in monthly installments on
the fifth day of each month.
(c) As used herein:
(i) "Index" shall mean the national consumer Price
Index for Urban Wage Earners and Clerical Workers (CPI-W) (1982-84 = 100)"
specified for "All Items" and issued by the Bureau of Labor
3
Statistics of the United States Department of Labor. In the event the Index
shall hereafter be converted to a different reference base or otherwise revised,
the determination of the Percentage Increase (defined below) shall be made with
the use of such conversion factor, formula or table for converting the Index as
may be published by the Bureau of Labor Statistics or, if such Bureau shall not
publish the same, then with use of such conversion factor, formula or table as
may be published by Xxxxxxxx-Xxxx, Inc. or, failing such publication, by any
other nationally recognized publisher of similar statistical information. In the
event the Index shall cease to be published, then, for the purposes of this
Lease, there shall be substituted for the Index such other statistics on the
cost of living computed and published by a federal governmental agency or by a
nationally recognized publisher of similar statistical information.
(ii) "Base Index" shall mean the Index in effect on
the Commencement Date.
(iii) "Current Index" shall mean the Index in effect
for the first month of the lease year for which the adjustment in rent is
calculated.
(iv) "Percentage Increase" shall mean the percentage
equal to the fraction, the numerator of which shall be the Current Index less
the Base Index, and the denominator which shall be the Base Index.
If the Current Index shall exceed the Base Index, then the annual rent
payable for the ensuing lease year shall be increased
4
be an amount equal to the "Percentage Increase" multiplied by $149,710.50. As
soon a practicable after the end of the second lease year during the term of
this Lease, Lessor shall send Lessee an index comparative statement setting
forth the Current Index, the Base Index, the Percentage Increase, and the
increase in the annual rent. On the fifth day of the calendar month ("Current
Month") following the month in which the index comparative statement was sent,
Lessee shall pay to Lessor (i) a sum equal to 1/12th of such increase in the
base annual rent multiplied by the number of calendar months of the new lease
year elapsed, and (ii) thereafter. commencing with the Current Month, and
continuing monthly thereafter, the monthly installments shall be increased by an
amount equal to 1/12th of such increase. In no event shall the rent charged be
greater than $158,693.13 per year.
6. LATE FEE: In the event that the Lessor does not receive from
Lessee any installment of rent within ten (10) days of the; date for which such
installment is due, a late fee of five percents (5.00%) off the monthly rent
installment shall be due as additional rent.
7. COST OF ENFORCEMENT OF THE LEASE: The defaulting party hereby
agrees to pay all costs, expenses, fees and charges incurred by the non
defaulting party in enforcing, by legal action or otherwise, any provisions,
covenants and conditions of this Lease including reasonable attorney's fees,
Lessee hereby waives the benefit of any Homestead or similar exemption laws with
respect to the obligations of this Lease.
5
8. REPAIRS AND MAINTENANCE: Lessee shall at its sole expense keep
the interior of the premises in as good order and repair as it is at the
commencement of this Lease Agreement, reasonable wear and tear excepted. A
walk-through of the current Biotage space was made by representatives of Lessee
and Lessor at the commencement of the first Lease and a checklist was prepared
which stated the condition of all leased property. This checklist was signed by
both representatives at the time of the walk-through. Repairs noted as required
to be made were completed by Lessor. A walk-through shall be made no later than
thirty (30) days prior to expiration of this Lease and any repairs noted as
required shall be completed by Lessee, said repairs to be completed to the
reasonable satisfaction of the Lessor. If Lessee fails to complete any such
repairs by the date of the termination of the Lease the cost of performing such
repairs shall be deducted from Lessee's deposit. Lessee's deposit shall be
released upon completion of any such repairs in accordance with the terms of
paragraph 3, above.
Lessee agrees to replace or repair all broken or damaged glass, locks,
plaster and flooring at the sole expense of Lessee and such replacement or
repair shall be to the satisfaction of Lessor. Lessee agrees to use water
closets and other plumbing fixtures only for the purpose for which they were
installed and not to place sweepings, rubbish, rags, chemicals, or other items
in such fixtures. Lessee agrees not to install on the property any heating unit
or antenna of any kind without the consent of the Lessor. Lessee agrees to keep
all doors and windows closed during
6
rain or snow, not to keep any explosive or flammable chemicals in unprotected
areas on the property, and not to affix or suspend any signs, advertisements or
notices upon or from any part of the property without the written consent of the
Lessor. Lessor will provide a directory sign at the entrance to the parking area
identifying the Lessee's business. Lessee further agrees not to place an iron
safe or other heavy articles (defined as being greater than 125 lbs. per square
foot) on the property without the written consent of the Lessor and agrees to
indemnify the Lessor for all damages resulting from the placement or moving of
any such article. Lessee agrees not to use any harsh or abrasive compounds or
solvents on any tile floors and to use only waxes of a water emulsion type.
Notwithstanding any of the above, the Lessee shall not be responsible for any
repairs resulting from the negligence or willful acts of the Lessor or its
agent.
Lessor agrees to maintain and keep in good repair the heating systems,
ventilation systems, air conditioning system, plumbing, sprinklers, electrical
(not including lamp and other light fixture replacement), the roof, the exterior
of the building, the grounds, and the parking areas except for any improvements
made by the Lessee which maintenance shall be the responsibility of the Lessee.
Said maintenance and repair shall be performed at Lessors own expense, except
for (a) any damage exceeding reasonable wear and tear caused by the Lessee, and
(b) any damage which in the reasonable judgement of the Lessor is due to abuse
or improper use of the systems, etc., by Lessee, both of which kinds of damages
7
shall be paid for by Lessee. Lessor shall, at its sole expense, have the
sprinkler system tested annually as required for Lessor's insurance policy.
Lessor shall not be liable to Lessee, its employees, agents or invitees
for any damage or injury to persons or property or for any loss or interruption
of business sustained by Lessee resulting from any occurrence or condition in or
upon the leased Premises, or the land, sidewalks and parking places adjacent
thereto, unless said injury, damage, loss or interruption was caused by the
negligence or willful misconduct or Lessor, its agents or employees.
9. UTILITIES: Lessor agrees to furnish and pay for the water and
sewerage utilities supplied to the leased premises. Lessee agrees to pay all
charges for gas, electricity, telephone, and other utilities or services (except
garbage or standard office type waste disposal and pick-up which shall be the
responsibility of the Lessor), janitorial and cleaning services, etc. used,
rendered or supplied upon or in connection with the premises. Lessee shall
notify the Lessor before signing the lease of any demand or need for water or
sewer other than for toilet, lab or reasonable cleaning of facilities (excluding
any process water usage). Lessor reserves the right to set a meter for any
additional uses and xxxx Lessee for the costs in excess of these normal usages.
Lessor shall provide snow removal within 24 hours of the cessation of snow fall
except when this occurs on Sunday. Lessor shall provide Lessee with 24 parking
spaces in the South parking lot.
8
10. ALTERATIONS: No alterations, additions, improvements, change
in mechanical, plumbing, or electrical systems or exterior decorations to the
premises shall be made by Lessee until after such change shall have been
approved in writing by the Lessor. So long as the Lessee shall not be in default
hereunder any fixtures, additions or improvements installed during this lease
and previous leases shall, at Lessee's option, become the property of the Lessee
upon expiration of the full term of this Lease agreement provided, however, that
(i) the Lessor have the right to require Lessee to remove such fixtures,
additions or improvements and restore the leased premises to their original
condition at Lessee's cost upon the termination of this Lease agreement or (ii)
if the Lessee shall be in default hereunder, such property shall, at the
lessor's option, become the property of the Lessor.
11. CONDEMNATION: If all or a substantial part of the premises
shall be acquired for any public use by right of eminent domain, or private
purchase in lieu of such right, by a public body vested with the right of
eminent domain, this Lease and all the rights of the Lessee under it shall
immediately terminate, and the rent shall be adjusted as of the time of
acquisition Lessee shall have no claim against Lessor for any value of the
unexpired term nor shall Lessee be entitled to any part of the condemnation
award or purchase price in lieu of such award.
12. DESTRUCTION BY CASUALTY:
(a) RESTORATION OF DAMAGED PREMISES. In the event the
premises are damaged or destroyed or rendered partially
9
untenantable for their then use by fire or other casualty insured by Lessor, the
Lessor shall promptly repair from funds provided by Lessee as subrogee or from
insurance proceeds released by the holder of any deed of trust lien upon the
building which contain the premises and restore the same to substantially the
condition in which they were immediately prior to the happening of such
casualty. The Lessor's obligation to repair shall not extend to any improvements
or addition of the Lessee. In the event that the premises are so damaged or
destroyed by fire or other casualty that repairs to the premises required for
Lessee to resume its operations within 90 days of the date of such fire or other
casualty cannot be completed, then either Lessee or Lessor shall have the right
to terminate this lease effective as of the date of the fire or other casualty.
(b) RENT ABATEMENT. During the period from the date of such
casualty until the premises are repaired and restored, Lessee's obligation to
pay any rental due hereunder, shall xxxxx in the proportion that the premises
destroyed or rendered untenantable bears to the total leased premises.
Notwithstanding the foregoing provisions, in the event the leased property shall
be damaged by fire or other insured casualty due to the fault or neglect of the
Lessee, or the Lessee's servants, employees, contractors, agents, visitors, or
licensees, then, without prejudice to any other rights and remedies of the
Lessor, the damage shall be repaired by the Lessee, but there shall be no
apportionment or abatement of rent.
(c) FIRE AND OTHER CASUALTY. Except as herein expressly
10
provided, this Lease shall not terminate nor shall there be any abatement of
rent or other charges of items of additional rent as a result of fire or other
casualty.
(d) LESSEE'S INSURANCE: Consistent with the requirements of
paragraph 14, Lessee shall obtain insurance to cover any damage to the premises
caused by fire or other casualty due to the deliberate or negligent act of the
Lessee or the agents, servants, employees, visitors, or licensees of Lessee.
13. INDEMNIFICATION: Lessee shall indemnify Lessor against all
liabilities, expense (including attorney's fees) and losses incurred by the
Lessor as a result of (a) the failure of Lessee to perform any covenant required
to be performed by Lessee hereunder, (b) any accident, injury or damage which
shall happen in or about the premises or resulting from the condition,
maintenance or operation of the premises, (c) failure to comply with any
requirements of any government authority, and (d) any mechanic's lien or
security agreement or other lien filed against the premises or fixtures and
equipment therein or thereon belonging to the Lessor. Notwithstanding any of the
above, the Lessee shall not be liable to indemnify the Lessor from any accidents
which are caused by the negligence or willful acts of the Lessor or its agents.
14. INSURANCE: Within thirty (30) days of occupancy, the Lessee
shall provide Lessor with written verification from Lessee's insurance company
showing compliance with the requirement that he shall obtain insurance coverage
and shall maintain such insurance as it deems necessary to cover the value of
its property located on
11
or about the demised premises and Lessee agrees that Lessor shall not be
responsible for any damage to the Lessee's property located on or about the
demised premises because of fire, water, or other casualty. Lessee shall
maintain in force insurance against liability for personal injury and/or
property damage with limits of no less than $500,000/$1,000,000 per occurrence.
Lessee shall also keep in force such other insurance that may from time to time
be reasonably required by Lessor against other insurable hazards as are commonly
insured against for the type of business activity that the Lessee will conduct.
All insurance required by this paragraph and paragraph 12 shall be carried in
favor of Lessor and shall require ten (10) days notice to Lessor by registered
mail of any cancellation or change affecting any interest of Lessor.
Any increase in insurance carried by Lessor on the building, which
increase is attributable to the nature of Lessee's business or Lessee's
activities on the premises, shall be reimbursed by the Lessee to the Lessor with
in (60) days of Lessee's receiving written verification of such increase.
15. TAXES: All real property taxes on the real property shall be
paid by the Lessor. In the event Lessor shall fail to pay any such taxes as and
when due, the Lessee shall, upon ten days prior written notice, have the right
to pay such taxes and offset such payments against rental payments otherwise due
hereunder. Lessee shall be responsible for all its own personal property taxes.
16. ACCESS: Upon reasonable notice to Lessee and at
12
reasonable times, Lessor, and their duly designated representatives, may enter
the premises in order to inspect the same make necessary or agreed repairs,
decorations, alterations or improvements, supply needed or agreed services,
exhibit the property to prospective or actual purchasers, mortgagees, lessees,
workmen, or contractors, and place "for rent" signs on the property. It is
understood by Lessor, however, that Lessee's operations on the property are of a
highly proprietary and confidential nature and that the utmost care must be
exerted to avoid contamination of the work area or work in progress, and
unnecessary disturbance of any kind which could be of substantial financial
detriment to Lessee. Accordingly, Lessor agrees to accommodate to the greatest
extent possible, Lessee's requirements that the premises be entered only when an
authorized representative of Lessee is present. In the case of an emergency when
it is impracticable for Lessor to give reasonable notice to Lessee of its intent
to enter the property or if the property has been abandoned or surrendered by
Lessee, the property may be entered by Lessor without notice to Lessee.
17. ASSIGNMENT AND SUBLETTING: Lessee shall not assign this Lease
Agreement nor sublet the premises or any portion thereof, without the prior
written consent of Lessor, which consent shall not be unreasonably withheld.
18. DEFAULT OR BREACH: Each of the following events shall
constitute a default or breach of this Lease by Lessee:
A. If Lessee, or any successor or assignee of Lessee
13
while in possession, shall file a voluntary petition in bankruptcy or insolvency
or for reorganization under any bankruptcy act, or shall voluntarily take
advantage of any such act by answer or otherwise, or shall make an assignment
for the benefit of creditors.
B. If involuntary proceedings under any bankruptcy law
or insolvency act shall be instituted against Lessee, or if a receiver or
trustee shall be appointed of all or substantially all of the property of
Lessee, and such proceedings shall not be dismissed or the receivership vacated
within thirty (30) days after the institution or appointment.
C. If five (5) days shall have elapsed after the Lessor
has given the Lessee written notice that the Lessee has failed to pay any rent
or additional rent when due under this Lease.
D. If Lessee fails to perform or comply with any of the
conditions of this Lease and if the nonperformance shall continue for a period
of ten (10) days after written notice thereof by Lessor to Lessee or if the
performance cannot be reasonably completed within the ten (10) day period,
Lessee shall not in good faith have commenced performance within the ten (10)
day period and shall not diligently proceed to completion of performance.
E. If Lessee shall vacate or abandon the demised
premises.
F. If this Lease shall be transferred to or shall pass
to or devolve on any other person or property, except in the manner herein
permitted.
14
19. EFFECT OF DEFAULT: In the event of any default by the Lessee
hereunder, as set forth in paragraph 18, the rights of Lessor shall be as
follows:
A. Lessor shall have the right to cancel and terminate
this Lease, as well as all of the right, title, and interest of Lessee
hereunder, by giving to Lessee not less than ten (10) days notice of the
cancellation and termination. On expiration of the time fixed in the notice,
this Lease and the right, title, and interest of Lessee hereunder, shall
terminate in the same manner and with the same force and effect, except as to
Lessee's liability, as if the date fixed in the notice of cancellation and
termination were the end of the term herein originally determined.
X. Xxxxxx may elect, but shall not be obligated, to make
any payment required of Lessee herein or comply with any agreement, term, or
condition required hereby to be performed by Lessee, and Lessor shall have the
right to enter the demised premises for the purpose of correcting or remedying
any such default and to remain until the default has been corrected or remedied,
but any expenditure for the correction by Lessor shall not be deemed to waive or
release the default of Lessee or the right of Lessor to take any action as may
be otherwise permissible hereunder in the case of any default.
X. Xxxxxx may re-enter the premises immediately and
remove the property and personnel of Lessee, and store the property in a public
warehouse at the cost of and for the account of Lessee.
20. SUBORDINATION: This Lease and all rights of Lessee
15
hereunder shall be subject and subordinate to the lien of any and all deeds of
trust that may now or hereafter affect the demised premises, or any part
thereof, and to any and all renewals, modifications or extensions of any such
deed of trust. Lessee shall on demand execute, acknowledge, and deliver to
Lessor without expense to Lessor, any and all instruments that may be necessary
or proper to subordinate this lease and all rights therein to the lien of any
such deeds of trust and each renewal, modification, or extension. If Lessee
shall fail at any time to execute, acknowledge, or deliver any such
subordination instrument, Lessor in addition to any other remedies available in
any consequence thereof, may execute, acknowledge, and deliver the same as
Lessee's attorney-in-fact and in Lessee's name. Lessee hereby irrevocably makes,
constitutes, and appoints Lessors, their successors and assigns, its
attorney-in-fact for that purpose.
The Lessor, however, shall exercise its best efforts to arrange with
the holder of any such underlying deed of trust for an agreement that if, by
dispossess, foreclosure, or otherwise such holder, or any successor in interest,
shall come into possession of the premises, or shall become owner of the
premises, or take over the rights of the Lessor in the premises, it will not
disturb the possession, use, or enjoyment of the leased property by the Lessee,
its successors or assigns, nor disaffirm this lease or the Lessee's rights or
estate hereunder, so long as all of the obligations of the Lessee are fully
performed in accordance with the terms of this Lease.
16
21. NOTICE: All notices to be given with respect to this Lease
shall be in writing. Each notice shall be sent by registered or certified mail,
postage prepaid and return receipt requested, to the party to be notified at the
address set forth herein or at such other address as either party may from time
to time designate in writing.
Every notice shall be deemed to have been given at the time it shall be
deposited in the United States mails in the manner prescribed herein. Nothing
contained herein shall be construed to preclude personal service of a summons or
other legal process.
All notices to the Lessor shall be mailed to it at 0000 Xxxx Xxxxxx,
Xxxxxxxxxxxxxxx, XX 00000. All notices to the Lessee shall be mailed to it at
0000 Xxxx Xxxxxx, Xxxxxxxxxxxxxxx, XX 00000, and shall be deemed to have been
sent to Lessee's proper address unless written change of address has been
received by Lessor prior to that date.
22. SURRENDER OF POSSESSION: Lessee shall, on the last day of the
term, or on earlier termination and forfeiture of the Lease, peaceably and
quietly surrender and deliver the demised premises to Lessor free of all
subtenancies, including all buildings, additions, and improvements constructed
or placed thereon by Lessee, except moveable trade fixtures (including fume
hoods and walk-in cooler), all in good condition and repair. Any trade fixtures
or personal property not used in connection with the operation of the demised
premises and belonging to Lessee, if not removed at the termination or default,
and if Lessor shall so
17
select, shall be deemed abandoned and become the property of Lessor without any
payment or offset therefor. Lessor may remove such fixtures or property from the
demised premises and store them at the risk and expense of Lessee if Lessor so
elect. Lessee shall repair and restore all damage to the demised premises caused
by the removal of equipment, trade fixtures, and personal property. The Lessee,
at the direction of the Lessor, pursuant to Paragraph 10, shall remove any
fixtures, additions or improvements and restore the leased premises to its
original condition, ordinary wear and tear excepted. If Lessee shall remain in
possession after termination of this lease, Lessee shall be a tenant at
sufferance, at one and one half (1-1/2) times the rent being charged as of the
last day before said termination, in which event lessee shall become a tenant at
will on a month to month basis.
23. REMEDIES: A. In the event of a breach or threatened breach by
either party of any of the terms or conditions hereof, the party aggrieved shall
have the right of injunction to restrain the other party and the right to invoke
any remedy allowed by law or in equity, as if the specific remedies of indemnity
or reimbursement were not provided herein.
B. The rights and remedies given to the Lessor and
Lessee in this Lease are distinct, separate, and cumulative, and no one of them,
whether or not exercised by either of them, shall be deemed to be in exclusion
of any of the other herein, by law, or by equity provided.
C. No receipt for money by Lessor from Lessee after
18
default or cancellation of this Lease in any lawful manner shall (1) reinstate,
continue, or extend the term or affect any notice given to Lessee, (2) operate
as a waiver of the right of Lessor to enforce the payment then due or falling
due, or (3) operate as a waiver of the right of Lessors to recover possession of
the demised premises by proper suit, action, proceeding or other remedy. After
(1) service of notice of termination and forfeiture as herein provided and the
expiration of the time specified therein, (2) the commencement of any suit,
action, proceeding, or other remedy, or (3) final order or judgement for
possession of the demised premises, Lessor may demand, receive, and collect any
monies due, without in any manner affecting such notice, order, or judgement.
Any and all such monies so collected shall be deemed to be payment on account if
the liability of Lessee hereunder.
24. TOTAL AGREEMENT: APPLICABLE TO SUCCESSORS: This Lease contains
the entire agreement between the parties and cannot be changed or terminated
except by a written instrument subsequently executed by the parties hereto. This
Lease and the terms and conditions hereof apply to and are binding on the heirs,
legal representatives, successors, and assigns of both parties and shall replace
and supersede any prior agreements between Lessor and Lessee.
25. APPLICABLE LAW: This Agreement shall be governed by and
construed in accordance with the laws of the State of Virginia.
26. SURVIVAL OF AGREEMENT: If a court of competent jurisdiction
shall, at any time, hold that a portion of this
19
agreement is invalid, the remainder shall not be affected thereby and shall
continue in full force and effect.
27. WAIVER: No waiver of any breach of default under this
agreement shall be deemed to be a waiver of any subsequent breach or default of
the same or a similar nature.
28. QUIET ENJOYMENT: As long as Lessee is not in default
hereunder, Lessee shall have quiet enjoyment of the leased Premises.
29. DEFAULT BY LESSOR: If the Lessor is in default of any of its
obligations or duties provided for in this Lease, and said default is not cured
within thirty (30) days after written notice of the grounds of default are
delivered to the Lessor, the Lessee may at its option terminate the Lease, or
cure the breach itself and hold the Lessor liable for any reasonable expenses,
losses or liabilities incurred by the Lessee.
30. INITIAL IMPROVEMENTS: Not applicable.
31. ENVIRONMENTAL MATTERS:
(a) "Hazardous Substances" shall mean (i) any "hazardous
substance" as defined in ss.101 (14) of the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. ss.9601 (14);(ii) any
petroleum and petroleum products, methane, natural gas or synthetic gas; (iii)
asbestos or any material containing asbestos; and (iv) any substance, waste or
other material considered hazardous, dangerous or toxic under federal, state or
local laws or regulations, whether now in force or as amended or enacted in the
future.
20
(b) "Release" shall mean any intentional or unintentional
release, spilling, leaking, pumping, emitting, emptying, discharging, escaping,
leaching, dumping or disposing.
(c) To the best of Lessor's knowledge after due inquiry
and investigation, Lessor warrants and represents that (i) any use, storage,
treatment, or transportation of Hazardous Substances that has occurred in or on
the property prior to the date hereof has been in compliance with all applicable
federal, state, and local laws, regulations, and ordinances, and (ii) no Release
of Hazardous Substances has occurred in, on, or under the property, and that the
property is free of Hazardous Substances as of the date hereof.
(d) Lessor agrees to indemnify and hold harmless the
Lessee from any and all claims, damages, fines, judgments, penalties, costs,
liabilities, or losses (including, without limitation, reasonable fees and
expenses of attorneys and environmental experts) arising during or after the
term of this Lease from or in connection with the presence or suspected presence
of Hazardous Substances in or on the property unless the Hazardous Substances
are present solely as a result of negligence, willful misconduct, or other acts
of Lessee, Lessee's agents, employees, contractors, or invitees. Without
limitation of the foregoing this indemnification shall include any and all costs
incurred due to any investigation of the site or any cleanup, removal, or
restoration mandated by a federal, state, or local agency or political
subdivision, unless the Hazardous Substances are present solely as a result of
negligence, willful misconduct, or other acts of
21
Lessee, Lessee's agents,employees, contractors, or invitees. This
indemnification shall specifically include any and all costs due the Hazardous
Substances that flow, diffuse, migrate, or percolate into, onto, or under the
property after the term of this Lease commences.
(e) Prior to the Commencement Date, Lessor shall furnish
to the Lessee, without expense to Lessee, an environmental report of the
condition of the Property in form and substance reasonably satisfactory to the
Lessee.
(f) Lessee shall not use or permit any Hazardous
Substance other than those resulting from, and transported from the property and
disposed off the property in the operation of the property in the ordinary
course of business and in compliance with all applicable laws (collectively,
"Permitted Substances") to be used, stored, generated, or disposed of on or in
the property by Lessee, Lessee's agents, employees, contractors, or invitees
without first obtaining Lessor's written consent, If Hazardous Substances (other
than Permitted Substances) are used, stored, generated, or disposed of on or in
the property except as permitted above, and the property becomes contaminated,
Lessee shall indemnify and hold harmless the Lessor from any and all claims,
damages, fines, judgments, penalties, costs, liabilities, or losses (including
without limitation, reasonable fees and expenses of attorneys and environmental
experts) arising during or after the term of this Lease and arising as a result
of that contamination by Lessee, unless such contamination is a result of the
negligence,
22
willful misconduct, or other acts of Lessor or other tenants of the property or
their agents, employees, contractors, or invitees. This indemnification
includes, without limitation, any and all costs incurred because of any
investigation of the site or any cleanup, removal, or restoration mandated by a
federal, state, or local agency or political subdivision. Without limitation of
the foregoing, if Lessee causes or permits the presence of any Hazardous
Substance on the property land that results in contamination, Lessee shall
promptly, at its sole expense, take any and all necessary actions to return the
property to the condition existing prior to the presence of any such Hazardous
Substance on the property. Lessee shall first obtain Lessor's approval for any
such remedial action.
(g) Each party shall give prompt written notice to the
other of any legal proceedings or any other communications of any nature
whatsoever to or from any party (including any governmental authority) relating
to Hazardous Substances on the property. Each party agrees at the other party's
request to consult with the other party concerning any matter coming within the
scope of this Section 31.
(h) The representations, warranties, agreements and
indemnification contained in this Section 31 shall survive the termination of
the Lease.
(i) Upon the termination of this Lease, Lessee shall
furnish to the Lessor, at the Lessee's expense, an environmental site assessment
report of a recognized environmental expert similar
23
to the one provided to the Lessee at the beginning of the term of this Lease
relating to the environmental condition of the property.
32. AUTHORITY: The Lessee warrants that he/she has appropriate
corporate authority to enter into this Lease. The General Partner executing this
Lease on behalf of Lessor represents and warrants that he has full power and
authority to do so.
WITNESS the following signatures and seals on this 11th day of January,
1998.
Astec Partnership Biotage Incorporated
By: /s/ Xxxxx X. Xxxxxx By: /s/ X. Xxxx
--------------------------------- -------------------------------
Xxxxx X. Xxxxxx Xx. V.P. Operations
General Partner Biotage Division of Dyax
24
