EXHIBIT 10.34
CONDITIONAL LEASE TERMINATION AGREEMENT
This Conditional Lease Termination Agreement is made and entered into this 30th
day of March, 2001 by and between Xxxxxx and Xxxx X. Xxxxxxxxx (collectively
"Landlord") and Hemagen Diagnostics, Inc., a Delaware corporation with an
address at 0000 Xxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx ("Tenant") under the
following circumstances:
A. Tenant leases from Landlord and Landlord leases to Tenant certain
premises located at 00-00 Xxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx,
pursuant to that certain Lease Agreement dated as of May 31, 1997
between Landlord and Tenant ("Lease"); and
B. Tenant desires to sublease the Leased Premises to Beyond
Genomics, Inc., a Delaware corporation, and Landlord may exercise
Landlord's right under Section 12 of the Lease to terminate the
Lease with Tenant and enter into a direct lease with Beyond
Genomics, Inc.; and
C. The parties wish to evidence the early termination of the Lease
and define their respective rights and obligations and provide
for an orderly transfer of the premises should the Landlord
recapture the space and enter into a direct lease with Beyond
Genomics, Inc.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. CONDITIONAL TERMINATION OF LEASE. Effective upon the execution of
a lease agreement between Landlord and Beyond Genomics, Inc. in
form and substance reasonably acceptable to Landlord and Beyond
Genomics, Inc., the Lease between Landlord and Tenant shall be
terminated effective as of the date of execution of the new
lease. If rent payments under the new lease with Beyond Genomics,
Inc. commence during a period for which Tenant has prepaid its
rent under the Lease, Landlord agrees that, not more than
fourteen (14) days after receipt of good funds constituting the
initial monthly rent from Beyond Genomics, Inc., Landlord shall
refund to Tenant the per diem amount of rent paid beyond the
effective date of termination.
2. LEASEHOLD IMPROVEMENTS. Landlord acknowledges that Beyond
Genomics, Inc. has purchased from Tenant the telephone system,
refrigeration rooms, laboratory benches and other contents and
leasehold improvements placed in the Leased Premises by Tenant,
and that, notwithstanding Section 23 of the Lease, said equipment
and personal property shall be left in the Leased Premises as the
property of Beyond Genomics, Inc.
3. CONDITION OF PREMISES. Landlord agrees that the physical
condition of the premises (excluding hidden or environmental
matters) is acceptable to Landlord and that effective on this
execution of the new lease between Landlord and Beyond Genomics,
Inc., Landlord will look only to Beyond Genomics, Inc. at the
termination or expiration of its Lease with Landlord to perform
any duties relative to the physical condition of the premises.
Notwithstanding the foregoing, Tenant will remove its signs
promptly upon the termination of the Lease and will leave the
floor and other surface areas of the Premises in broom clean
condition to the reasonable satisfaction of Beyond Genomics, Inc.
4. STANDARD ELECTRIC PARKING LEASE. Tenant hereby assigns and
releases to Landlord all of Tenant's right, title and interest in
and to that certain written sublease for parking space entered
into by and between Tenant and Standard Electric, Inc. and to any
at will sublease agreement which may exist between Standard
Electric, Inc. and Tenant. On and after the date of this
Agreement, Landlord shall have the sole right, power and
authority to collect rent under said parking sublease agreement.
If Tenant has collected rent from Standard Electric, Inc. for the
month in which the Lease has terminated, then Tenant shall
forthwith pay to Landlord the portion of such rent attributable
to the remainder of the month.
5. PERMITTED SUBLETTING. Landlord acknowledges that Tenant will be a
permitted subtenant under the lease with Beyond Genomics, Inc.
for one individual office, one lab bench and one unit of lab
space on a month-to-month basis, in which subleased space Tenant
will continue to do business on a reduced scale in the same
manner as it currently does business under the Lease with
Landlord. Tenant agrees to be subject to, and abide by, all terms
and conditions of Landlord's lease with Beyond Genomics, Inc.
which provide conditions as to occupancy.
6. CONDITION PRECEDENT. The parties rights and obligations under
this Termination Agreement are expressly conditioned on the
execution by Beyond Genomics, Inc. and commencement of
performance under a lease agreement between Landlord and Beyond
Genomics, Inc. , including but not limited to Beyond Genomics,
Inc. delivering all rent payments required upon the commencement
of the lease term in good funds.
7. MISCELLANEOUS Tenant represents, warrants and covenants to
Landlord that the signatory to this instrument has all right,
power and authority under Delaware law and the Tenant's Articles
of Incorporation and is vested by authority of its Board of
Directors to enter into this Conditional Lease Termination
Agreement and render Tenant's performance hereunder. Tenant and
Landlord respectively represent and warrant to the other that
there are no other agreements, subleases, amendments or addendums
to the Lease except for a Xxxx of Sale for certain leasehold
improvements by and between Tenant and Beyond Genomics, Inc., and
the Parking Sublease referenced in Section 4 above. This
Agreement shall be governed by Massachusetts law.
8. SURVIVAL. The rights, duties and obligations of Landlord and
Tenant respectively, imposed by operation of law or the Lease
survive termination of the Lease unaffected hereby, except as to
the specific matters set forth within this Termination Agreement.
Executed this 30th day of March, 2001 by Landlord and Tenant.
LANDLORD
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
TENANT
HEMAGEN DIAGNOSTICS, INC., a
Delaware Corporation
By /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx Xxxxx, President
LEASE TERM COMMENCEMENT LETTER
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Pursuant to Section 3 of a Lease dated March 30, 2001 between XXXXXX XXXXXXXXX
and XXXX X. XXXXXXXXX as LESSOR and BEYOND GENOMICS, INC. as LESSEE, the parties
hereby agree that all conditions for the effectiveness and commencement of the
Lease have been fulfilled and that, subject only to LESSOR'S receipt of the
initial rent and security deposit in good funds from the LESSEE, the
Commencement Date of the Lease is as of April 1, 2001.
Executed as a sealed instrument this 2nd day of April, 2001.
LESSOR:
LESSEE: BEYOND GENOMICS, INC.
/s/ Xxxxxx Xxxxxxxxx By: /s/ N.Xxxxxxx Xxxx
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Xxxxxx & Xxxx Xxxxxxxxx, by their agent N. Xxxxxxx Xxxx, President
Xxxxxx Xxxxxxxxx
