EXHIBIT 10.9
COMMERCIAL LEASE AGREEMENT
THIS LEASE DATED THIS 8TH DAY OF JANUARY, 2004
BETWEEN:
FIELD AFAR PROPERTIES, LLC
Address: 0 Xxxxx Xxxxxx Xxxxx, XX
Telephone: 000 000-0000 Fax: 000 000-0000
(the "Landlord")
OF THE FIRST PART
- AND -
BIOLIFE SOLUTIONS, INC.
Address: Xxxxx 000, XXXX Xxxx, Xxxxxxxxxx. XX 00000
(the "Tenant")
OF THE SECOND PART
IN CONSIDERATION OF the Landlord leasing certain premises to the Tenant, the
Tenant leasing those premises from the Landlord and the mutual benefits and
obligations set forth in this Lease, the receipt and sufficiency of which
consideration is hereby acknowledged, the parties to this Lease agree as
follows:
BASIC TERMS
1. The following basic terms are hereby approved by the parties and each
reference in this Lease to any of the basic terms will be construed to
include the provisions set forth below as well as all of the additional
terms and conditions of the applicable sections of this Lease where
such basic terms are more fully set forth:
a. Landlord: Field Afar Properties, LLC
b. Address of Landlord: 0 Xxxxx Xxxxxx Xxxxx, XX
c. Tenant: BioLife Solutions, Inc.
d. Address of Tenant: Xxxxx 000, XXXX Xxxx, Xxxxxxxxxx. XX 00000
e. Operating Name of Tenant: BioLife Solutions, Inc.
f. Leasable Area of Premises: 6161 square feet
g. Term of Lease:
h. The term of the Lease is for 3 years to commence at 12:00 noon on
January 15th, 2004.
i. Commencement Date of Lease: January 15th, 2004
j. Base Rent: $6,200.00 per month
k. Permitted Use of Premises: Office and Laboratory Use
l. Advance rent: None
m. Security/Damage Deposit: None
DEFINITIONS
2. When used in this Lease, the following expressions will have the meanings
indicated:
a. "Additional Rent" means all amounts payable by the Tenant under this
Lease except Base Rent, whether or not specifically designated as
Additional Rent elsewhere in this Lease;
b. "Building" means all buildings, improvements, equipment, fixtures,
property and facilities from time to time located at 000 Xxxxx Xxxxxx,
Xxxxx, XX, as from time to time altered, expanded or reduced by the
Landlord in its sole discretion;
c. "Common Areas and Facilities" mean:
i. those portions of the Building areas, buildings, improvements,
facilities, utilities, equipment and installations in or forming
part of the Building which from time to time are not designated or
intended by the Landlord to be leased to tenants of the Building
including, without limitation, exterior weather walls, roofs,
entrances and exits, parking areas, driveways, loading docks and
area, storage, mechanical and electrical rooms, areas above and
below leasable premises and not included within leasable premises,
security and alarm equipment, grassed and landscaped areas,
retaining walls and maintenance, cleaning and operating equipment
serving the Building; and
ii. those lands, areas, buildings, improvements, facilities,
utilities, equipment and installations which serve or are for the
useful benefit of the Building, the tenants thereof or the
Landlord and those having business with them, whether or not
located within, adjacent to or near the Building and which are
designated form time to time by the Landlord as part of the Common
Areas and Facilities;
d. "Leasable Area" means with respect to any rentable premises, the area
expressed in square feet of all floor space including floor space of
mezzanines, if any, determined, calculated and certified by the
Landlord and measured from the exterior face of all exterior walls,
doors and windows, including walls, doors and windows separating the
rentable premises from enclosed Common Areas and Facilities, if any,
and from the centre line of all interior walls separating the rentable
premises from adjoining rentable premises. There will be no deduction
or exclusion for any space occupied by or used for columns, ducts or
other structural elements;
e. "Premises" means the office space at 000 Xxxxx Xxxxxx, Xxxxx, XX which
is located approximately as shown in red on Schedule 'A' attached to
and incorporated in the Lease and comprises a Leasable Area of 6161
square feet;
LEASED PREMISES
3. The Landlord agrees to rent to the Tenant the Premises for only the
permitted use (the "Permitted Use") of a Office and Laboratory Use. Neither
the Premises nor any part of the Premises will be used at any time during
the term of this Lease by Tenant for any purpose other than the Permitted
Use.
4. Subject to the provisions of this Lease, the Tenant is entitled to the
exclusive use of the following parking (the "Parking") on or about the
Premises: six indoor spaces. Only properly insured motor vehicles may be
parked in the Tenant's space.
5. The Landlord agrees to supply and the Tenant agrees to use and maintain in
reasonable condition, normal wear and tear excepted, the following fixtures
and leasehold improvements: 12 furnished office suites included in monthly
rental. Laboratory leasehold improvements to be paid by tenant.
6. The Landlord reserves the right in its reasonable discretion to alter,
reconstruct, expand, withdraw from or add to the Building from time to
time. In the exercise of those rights, the Landlord undertakes to use
reasonable efforts to minimize any interference with the visibility of the
Premises and to use reasonable efforts to ensure that direct entrance to
and exit from the Premises is maintained.
7. The Landlord reserves the right for itself and for all persons authorized
by it, to erect, use and maintain wiring, mains, pipes and conduits and
other means of distributing services in and through the Premises, and at
all reasonable times to enter upon the Premises for the purpose of
installation, maintenance or repair, and such entry will not be an
interference with the Tenant's possession under this Lease.
8. The Landlord reserves the right, when necessary by reason of accident or in
order to make repairs, alterations or improvements relating to the Premises
or to other portions of the Building to cause temporary obstruction to the
Common Areas and Facilities as reasonably necessary and to interrupt or
suspend the supply of electricity, water and other services to the Premises
until the repairs, alterations or improvements have been completed. There
will be no abatement in rent because of such obstruction, interruption or
suspension provided that the repairs, alterations or improvements are made
expeditiously as is reasonably possible.
9. Subject to this Lease, the Tenant and its employees, customers and invitees
will have the non-exclusive right to use for their proper and intended
purposes, during business hours in common with all others entitled thereto
those parts of the Common Areas and Facilities from time to time permitted
by the Landlord. The Common Areas and Facilities and the Building will at
all times be subject to the exclusive control and management of the
Landlord. The Landlord will operate and maintain the Common Areas and
Facilities and the Building in such manner as the Landlord determines from
time to time.
10. The Tenant agrees that the areas and boundaries described in Schedule "A"
are:
a. subject to alteration by acquisition or conveyance of lands for any
purpose including the dedication, expropriation or conveyance of lands
for municipal lands; and
b. may, upon the sole discretion of the Landlord, be relocated to another
area within the Building which area would, where possible, be of
similar size and character to the original Premises.
The Landlord agrees to reimburse the Tenant for any reasonable moving
expenses incurred in any such relocation. The Tenant covenants that at the
request of the Landlord, it will enter into such further assurances,
releases, amending agreements, or other documents as may be required by the
Landlord to give effect to such alteration, variation, diminution,
enlargement, supplementation or relocation.
TERM
11. The term of the Lease is for 3 years to commence at 12:00 noon on January
15th, 2004.
12. Notwithstanding that the term of this Lease commences on January 15th,
2004, the Tenant is entitled to possession of the Premises at 12:00 noon on
January 14th, 2004.
RENT
13. Subject to the provisions of this Lease, the Tenant will pay a base rent
(the "Base Rent") of $6,200.00 per month for the Premises, which includes a
monthly charge for the Parking (collectively the "Base Rent"). In addition
to the Base Rent, the Tenant will pay the following taxes to the Landlord:
Village and County Property and School Taxes.
14. The Tenant will pay the Base Rent on or before the fifteenth of each and
every month of the term of this Lease to the Landlord.
15. The Tenant will be charged an additional amount of $10.00 per day for any
rental payments that are received after the due date.
16. In the event that this Lease commences, expires or is terminated before the
end of the period for which any item of Additional Rent or Base Rent would
otherwise be payable or other than at the commencement or end of a calendar
month, the amount thereof payable by the Tenant will be apportioned and
adjusted pro rata on the basis of a thirty (30) day month in order to
calculate the amount payable for such irregular period.
USE AND OCCUPATION
17. The Tenant will use and occupy the Premises only for the Permitted Use
and for no other purpose whatsoever. The Tenant will carry on business
under the name of BioLife Solutions, Inc. and will not change such name
without the prior written consent of the Landlord, such consent not to
be unreasonably withheld. The Tenant will open the whole of the
Premises for business to the public fully fixtured, stocked and staffed
on the date of commencement of the term and throughout the term, will
continuously occupy and utilize the entire Premises in the active
conduct of its business in a reputable manner on such days and during
such hours of business as may be determined from time to time by the
Landlord.
18. The Tenant covenants that the Tenant will carry on and conduct its
business from time to time carried on upon the Premises in such manner
as to comply with all statutes, bylaws, rules and regulations of any
federal, provincial, municipal or other competent authority and will
not do anything on or in the Premises in contravention of any of them.
ADVANCE RENT
19. On execution of this Lease, The Tenant will pay the Landlord advance
rent (the "Advance Rent") to be held by the Landlord without interest
and to be applied on account of the first and last installments of Base
Rent as they fall due and to be held to the extent not so applied as
security for and which may be applied by the Landlord to the
performance of the covenants and obligations of the Tenant under this
Lease.
QUIET ENJOYMENT
20. The Landlord covenants that on paying the Rent and performing the
covenants contained in this Lease, the Tenant will peacefully and
quietly have, hold, and enjoy the Premises for the agreed term.
DEFAULT
21. If the Tenant is in default in the payment of any money, whether hereby
expressly reserved or deemed as rent, or any part thereof, and such default
continues following any specific due date on which the Tenant is to make
such payment, or in the absence of such specific due date, for the 10 days
following written notice by the Landlord requiring the Tenant to pay the
same then, at the option of the Landlord, this Lease may be terminated upon
10 days notice and the term will then immediately become forfeited and
void, and the Landlord may without further notice or any form of legal
process whatever forthwith reenter the Premises or any part thereof and in
the name of the whole repossess and enjoy the same as of its former state
anything contained herein or in any statute or law to the contrary
notwithstanding.
22. Unless otherwise provided for in this Lease, if the Tenant does not
observe, perform and keep each and every of the non-monetary covenants,
agreements, stipulations, obligations, conditions and other provisions of
this Lease to be observed, performed and kept by the Tenant and persists in
such default, after 15 days following written notice from the Landlord
requiring that the Tenant remedy, correct or comply or, in the case of such
default which would reasonably require more than 15 days to rectify, unless
the Tenant will commence rectification within the said 15 days notice
period and thereafter promptly and diligently and continuously proceed with
the rectification of any such defaults then, at the option of the Landlord,
this Lease may be terminated upon 15 days notice and the term will then
immediately become forfeited and void, and the Landlord may without further
notice or any form of legal process whatever forthwith reenter the Premises
or any part thereof and in the name of the whole repossess and enjoy the
same as of its former state anything contained herein or in any statute or
law to the contrary notwithstanding.
23. If and whenever:
a. the Tenant's leasehold interest hereunder, or any goods, chattels or
equipment of the Tenant located in the Premises will be taken or seized
in execution or attachment, or if any writ of execution will issue
against the Tenant or the Tenant will become insolvent or commit an act
of bankruptcy or become bankrupt or take the benefit of any legislation
that may be in force for bankrupt or insolvent debtor or become
involved in voluntary or involuntary winding up, dissolution or
liquidation proceedings, or if a receiver will be appointed for the
affairs, business, property or revenues of the Tenant; or
b. the Tenant fails to commence, diligently pursue and complete the
Tenant's work to be performed pursuant to any agreement to lease
pertaining to the Premises or vacate or abandon the Premises, or fail
or cease to operate or otherwise cease to conduct business form the
Premises, or use or permit or suffer the use of the Premises for any
purpose other than as permitted herein, or make a bulk sale of its
goods and assets which has not been consented to by the Landlord, or
move or commence, attempt or threaten to move its goods, chattels and
equipment out of the Premises other than in the routine course of its
business; or
then, and in each such case, at the option of the Landlord, this Lease may
be terminated without notice and the term will then immediately become
forfeited and void, and the Landlord may without notice or any form of
legal process whatever forthwith reenter the Premises or any part thereof
and in the name of the whole repossess and enjoy the same as of its former
state anything contained herein or in any statute or law to the contrary
notwithstanding.
24. In the event that the Landlord has terminated the Lease pursuant to this
section, on the expiration of the time fixed in the notice, if any, this
Lease and the right, title, and interest of the Tenant under this Lease
will terminate in the same manner and with the same force and effect,
except as to the Tenant's liability, as if the date fixed in the notice of
cancellation and termination were the end of the Lease.
DISTRESS
25. If and whenever the Tenant is in default in payment of any money, whether
hereby expressly reserved or deemed as rent, or any part thereof, the
Landlord may, without notice or any form of legal process whatsoever, enter
upon the Premises and seize, remove and sell the Tenant's goods, chattels
and equipment therefrom or seize, remove and sell any goods, chattels and
equipment at any place to which the Tenant or any other person may have
removed them, in the same manner as if they had remained and been
distrained upon the Premises, all notwithstanding any rule of law or equity
to the contrary, and the Tenant hereby waives and renounces the benefit of
any present or future statute or law limiting or eliminating the Landlord's
right of distress.
OVERHOLDING
26. If the Tenant continues to occupy the Premises with the written consent of
the Landlord after the expiration or other termination of the term, then,
without any further written agreement, the Tenant will be a month-to-month
tenant at a minimum monthly rental equal to twice the Base Rent and subject
always to all of the other provisions of this Lease insofar as the same are
applicable to a month-to-month tenancy and a tenancy from year to year will
not be created by implication of law.
27. If the Tenant continues to occupy the Premises without the written consent
of the Landlord at the expiration or other termination of the term, then
the Tenant will be a tenant at will and will pay to the Landlord, as
liquidated damages and not as rent, an amount equal to twice the Base Rent
plus any Additional Rent during the period of such occupancy, accruing from
day to day and adjusted pro rata accordingly, and subject always to all the
other provisions of this Lease insofar as they are applicable to a tenancy
at will and a tenancy from month to month or from year to year will not be
created by implication of law; provided that nothing herein contained will
preclude the Landlord from taking action for recovery of possession of the
Premises.
ADDITIONAL RIGHTS ON REENTRY
28. If the Landlord reenters the Premises or terminates this Lease, then:
a. notwithstanding any such termination or the term thereby becoming
forfeited and void, the provisions of this Lease relating to the
consequences of termination will survive;
b. the Landlord may use such reasonable force as it may deem necessary for
the purpose of gaining admittance to and retaking possession of the
Premises and the Tenant hereby releases the Landlord from all actions,
proceedings, claims and demands whatsoever for and in respect of any
such forcible entry or any loss or damage in connection therewith or
consequential thereupon;
c. the Landlord may expel and remove, forcibly, if necessary, the Tenant,
those claiming under the Tenant and their effects, as allowed by law,
without being taken or deemed to be guilty of any manner of trespass;
d. in the event that the Landlord has removed the property of the Tenant,
the Landlord may store such property in a public warehouse or at a
place selected by the Landlord, at the expense of the Tenant. If the
Landlord feels that it is not worth storing such property given its
value and the cost to store it, then the Landlord may dispose of such
property in its sole discretion and use such funds, if any, towards any
indebtedness of the Tenant to the Landlord. The Landlord will not be
responsible to the Tenant for the disposal of such property other than
to provide any balance of the proceeds to the Tenant after paying any
storage costs and any amounts owed by the Tenant to the Landlord;
e. the Landlord may relet the Premises or any part thereof for a term or
terms which may be less or greater than the balance of the term of this
Lease remaining and may grant reasonable concessions in connection
therewith including any alterations and improvements to the Premises;
and
f. after reentry, the Landlord may procure the appointment of a receiver
to take possession and collect rents and profits of the business of the
Tenant, and, if necessary to collect the rents and profits the receiver
may carry on the business of the Tenant and take possession of the
personal property used in the business of the Tenant, including
inventory, trade fixtures, and furnishings, and use them in the
business without compensating the Tenant;
g. after reentry, the Landlord may terminate the Lease on giving 5 days
written notice of termination to the Tenant. Without this notice,
reentry of the Premises by the Landlord or its agents will not
terminate this Lease;
h. the Tenant will pay to the Landlord on demand:
i. all rent, Additional Rent and other amounts payable under this
Lease up to the time of reentry or termination, whichever is
later;
ii. reasonable expenses as the Landlord incurs or has incurred in
connection with the reentering, terminating, reletting, collecting
sums due or payable by the Tenant, realizing upon assets seized;
including without limitation, brokerage, fees and expenses and
legal fees and disbursements and the expenses of keeping the
Premises in good order, repairing the same and preparing them for
reletting; and
iii. as liquidated damages for the loss of rent and other income of the
Landlord expected to be derived from this Lease during the period
which would have constituted the unexpired portion of the term had
it not been terminated, at the option of the Landlord, either:
i. an amount determined by reducing to present worth at an
assumed interest rate of twelve percent (12%) per annum all
Minimum Rent and estimated Additional Rent to become payable
during the period which would have constituted the unexpired
portion of the term, such determination to be made by the
Landlord, who may make reasonable estimates of when any such
other amounts would have become payable and may make such
other assumptions of the facts as may be reasonable in the
circumstances; or
ii. an amount equal to the Base Rent and estimated Additional Rent
for a period of six (6) months.
INSPECTIONS
29. At all reasonable times during the term of this Lease and any renewal of
this Lease, the Landlord and its agents may enter the Premises to make
inspections or repairs, or to show the Premises to prospective tenants or
purchasers .
30. For so long as the Tenant, or an assignee or subtenant approved by the
Landlord, is using and occupying the Premises for the Permitted Use and is
not in default under the Lease, the Landlord agrees not to Lease space in
the Building to any tenant who will be conducting in such premises as its
principal business, the services of Office and Laboratory Use.
RENEWAL OF LEASE
31. Upon giving written notice no later than 60 days before the expiration of
the term of this Lease, the Tenant may renew this Lease for an additional
term. All terms of the renewed lease will be the same except for this
renewal clause and the amount of the rent. If the Landlord and the Tenant
can not agree as to the amount of the Rent, the amount of the Rent will be
determined by mediation.
TENANT IMPROVEMENTS
32. The Tenant will obtain written permission from the Landlord before doing
any of the following:
a. applying adhesive materials, or inserting nails or hooks in walls or
ceilings other than two small picture hooks per wall;
b. painting, wallpapering, redecorating or in any way significantly
altering the appearance of the Premises;
c. removing or adding walls, or performing any structural alterations;
d. installing a waterbed(s);
e. changing the amount of heat or power normally used on the Premises as
well as installing additional electrical wiring or heating units;
f. placing or exposing or allowing to be placed or exposed anywhere inside
or outside the Premises any placard, notice or sign for advertising or
any other purpose; or
g. affixing to or erecting upon or near the Premises any radio or TV
antenna or tower.
UTILITIES AND OTHER CHARGES
33. The Tenant is responsible for the payment of the following utilities and
other charges in relation to the Premises: electricity, natural gas, water,
sewer, telephone and cable fees.
SIGNS
34. The Tenant may erect, install and maintain a sign of a kind and size in a
location, all in accordance with the Landlord's design criteria for the
Building and as first approved in writing by the Landlord. All other signs,
as well as the advertising practices of the Tenant, will comply with all
applicable rules and regulations of the Landlord. The Tenant will not
erect, install or maintain any sign other than in accordance with this
section.
TENANT'S INSURANCE
35. The Tenant will, during the whole of the term and during such other time as
the Tenant occupies the Premises, take out and maintain the following
insurance, at the Tenant's sole expense, in such form as used by solvent
insurance companies in the State of New York:
a. Comprehensive general liability insurance against claims for bodily
injury, including death, and property damage or loss arising out of the
use or occupation of the Premises, or the Tenant's business on or about
the Premises; such insurance to be in the joint name of the Tenant and
the Landlord so as to indemnify and protect both the Tenant and the
Landlord and to contain a "cross liability" and "severability of
interest" clause so that the Landlord and the Tenant may be insured in
the same manner and to the same extent as if individual policies had
been issued to each, and will be for the amount of not less than
$1,000,000.00 combined single limit or such other amount as may be
reasonably required by the Landlord from time to time; such
comprehensive general liability insurance will for the Tenant's benefit
only include contractual liability insurance in a form and of a nature
broad enough to insure the obligations imposed upon the Tenant under
the terms of this Lease.
b. All risks insurance upon its merchandise, stock-in-trade, furniture,
fixtures and improvements and upon all other property in the Premises
owned by the Tenant or for which the Tenant is legally liable, and
insurance upon all glass and plate glass in the Premises against
breakage and damage from any cause, all in an amount equal to the full
replacement value thereof, which amount in the event of a dispute will
be determined by the decision of the Landlord. In the event the Tenant
does not obtain such insurance, it is liable for the full costs of
repair or replacement of such damage or breakage.
c. Boiler and machinery insurance on such boilers and pressure vessels as
may be installed by, or under the exclusive control of, the Tenant in
the Premises.
d. Owned automobile insurance with respect to all motor vehicles owned by
the Tenant and operated in its business.
36. The Tenant's policies of insurance hereinbefore referred to will contain
the following:
a. provisions that the Landlord is protected notwithstanding any act,
neglect or misrepresentation of the Tenant which might otherwise result
in the avoidance of claim under such policies will not be affected or
invalidated by any act, omission or negligence of any third party which
is not within the knowledge or control of the insured(s);
b. provisions that such policies and the coverage evidenced thereby will
be primary and noncontributing with respect to any policies carried by
the Landlord and that any coverage carried by the Landlord will be
excess coverage;
c. all insurance referred to above will provide for waiver of the
insurer's rights of subrogation as against the Landlord; and
d. provisions that such policies of insurance will not be cancelled
without the insurer providing the Landlord thirty (30) days written
notice stating when such cancellation will be effective.
37. The Tenant will further during the whole of the term maintain such other
insurance in such amounts and in such sums as the Landlord may reasonably
determine from time to time. Evidence satisfactory to the Landlord of all
such policies of insurance will be provided to the Landlord upon request.
38. The Tenant will not do, omit or permit to be done or omitted upon the
Premises anything which will cause any rate of insurance upon the Building
or any part thereof to be increased or cause such insurance to be
cancelled. If any such rate of insurance will be increased as aforesaid,
the Tenant will pay to the Landlord the amount of the increase as
Additional Rent. If any insurance policy upon the Building or any part
thereof is cancelled or threatened to be cancelled by reason of the use or
occupancy by the Tenant or any act or omission as aforesaid, the Tenant
will immediately remedy or rectify such use, occupation, act or omission
upon being requested to do so by the Landlord, and if the tenant fails to
so remedy or rectify, the Landlord may at its option terminate this Lease
and the Tenant will immediately deliver up possession of the Premises to
the Landlord.
39. The Tenant will not at any time during the term hereof use, exercise, carry
on or permit or suffer to be used, exercised, carried on, in or upon the
Premises or any part thereof, any noxious, noisome or offence act, trade
business occupation or calling, and no act, matter or thing whatsoever will
at any time during the said term be done in or upon the Premises, or any
part thereof, which will or may be or grow to the annoyance, nuisance,
grievance, damage or disturbance of the occupiers or owners of the
Building, or adjoining lands or premises.
LANDLORD'S INSURANCE
40. The Landlord will take out or cause to be taken out and keep or cause to be
kept in full force and effect during the whole of the term:
a. extended fire and extended coverage insurance on the building, except
foundations, on a replacement cost basis, subject to such deductions
and exceptions as the Landlord may determine; such insurance will be in
a form or forms normally in use from time to time for buildings and
improvements of a similar nature similarly situate, including, should
the Landlord so elect, insurance to cover any loss of rental income
which may be sustained by the Landlord;
b. boiler and machinery insurance of such boilers and pressure vessels as
may be installed by, or under the exclusive control of, the Landlord in
the building (other than such boilers and pressure vessels to be
insured by the Tenant hereunder);
c. comprehensive general liability insurance against claims for bodily
injury, including death and property damage in such form and subject to
such deductions and exceptions as the Landlord may determine; provided
that nothing herein will prevent the Landlord from providing or
maintaining such lesser, additional or broader coverage as the Landlord
may elect in its discretion.
41. The Landlord agrees to request its insurers, upon written request of the
Tenant, to have all insurance taken out and maintained by the Landlord
provide for waiver of the Landlord's insurers' rights of subrogation as
against the Tenant when and to the extent permitted from time to time by
its insurers.
ABANDONMENT
42. If at any time during the term of this Lease, the Tenant abandons the
Premises or any part of the Premises, the Landlord may, at its option,
enter the Premises by any means without being liable for any prosecution
for such entering, and without becoming liable to the Tenant for damages or
for any payment of any kind whatever, and may, at the Landlord's
discretion, as agent for the Tenant, relet the Premises, or any part of the
Premises, for the whole or any part of the then unexpired term, and may
receive and collect all rent payable by virtue of such reletting, and, at
the Landlord's option, hold the Tenant liable for any difference between
the Rent that would have been payable under this Lease during the balance
of the unexpired term, if this Lease had continued in force, and the net
rent for such period realized by the Landlord by means of the reletting. If
the Landlord's right of reentry is exercised following abandonment of the
premises by the Tenant, then the Landlord may consider any personal
property belonging to the Tenant and left on the Premises to also have been
abandoned, in which case the Landlord may dispose of all such personal
property in any manner the Landlord will deem proper and is relieved of all
liability for doing so.
SUBORDINATION AND ATTORNMENT
43. This Lease and the Tenant's rights hereunder will automatically be
subordinate to any mortgage or mortgages, or encumbrance resulting from any
other method of financing or refinancing, now or hereafter in force against
the Lands or Building or any part thereof, as now or hereinafter
constituted, and to all advances made or hereafter to be made upon the
security thereof; and, upon the request of the Landlord, the Tenant will
execute such documentation as may be required by the Landlord in order to
confirm and evidence such subordination.
44. The Tenant will, in the event any proceedings are brought, whether in
foreclosure or by way of the exercise of the power of sale or otherwise,
under any other mortgage or other method of financing or refinancing made
by the Landlord in respect of the Building, or any portion thereof, attorn
to the encumbrancer upon any such foreclosure or sale and recognize such
encumbrancer as the Landlord under this Lease, but only if such
encumbrancer should so elect and require.
45. Upon the written request of the Tenant, the Landlord agrees to request any
mortgagee or encumbrancer of the Lands (present or future) to enter into a
non-disturbance covenant in favor of the Tenant, whereby such mortgagee or
encumbrancer will agree not to disturb the Tenant in its possession and
enjoyment of the Premises for so long as the Tenant is not in default under
this Lease.
REGISTRATION OF CAVEAT
46. The Tenant will not register this Lease, provided, however, that:
a. The Tenant may file a caveat respecting this Lease but will not be
entitled to attach this Lease, and, in any event, will not file such
caveat prior to the commencement date of the term. The caveat will not
state the Base Rent or any other financial provisions contained in this
Lease.
b. If the Landlord's permanent financing has not been fully advanced, the
Tenant covenants and agrees not to file a caveat until such time as the
Landlord's permanent financing has been fully advanced.
ESTOPPEL CERTIFICATE AND ACKNOWLEDGEMENT
47. Whenever requested by the Landlord, a mortgagee or any other encumbrance
holder or other third party having an interest in the Building or any part
thereof, the Tenant will, within ten (10) days of the request, execute and
deliver an estoppel certificate or other form of certified acknowledgement
as to the Commencement Date, the status and the validity of this Lease, the
state of the rental account hereunder, any incurred defaults on the part of
the Landlord alleged by the Tenant, and such other information as may
reasonably be required.
SALE BY LANDLORD
48. In the event of any sale, transfer or lease by the Landlord of the Building
or any interest therein or portion thereof containing the Premises or
assignment by the Landlord of this Lease or any interest of the Landlord
therein to the extent that the purchaser, transferee, tenant or assignee
assumes the covenants and obligations of the Landlord under this Lease, the
Landlord will without further written agreement be freed and relieved of
liability under such covenants and obligations. This Lease may be assigned
by the Landlord to any mortgagee or encumbrancee of the Building as
security.
TENANT'S INDEMNITY
49. The Tenant will and does hereby indemnify and save harmless the Landlord of
and from all loss and damage and all actions, claims, costs, demands,
expenses, fines, liabilities and suits of any nature whatsoever for which
the Landlord will or may become liable, incur or suffer by reason of a
breach, violation or nonperformance by the Tenant of any covenant, term or
provision hereof or by reason of any builders' or other liens for any work
done or materials provided or services rendered for alterations,
improvements or repairs, made by or on behalf of the Tenant to the
Premises, or by reason of any injury occasioned to or suffered by any
person or damage to any property, or by reason of any wrongful act or
omission, default or negligence on the part of the Tenant or any of its
agents, concessionaires, contractors, customers, employees, invitees or
licensees in or about the Building.
50. It is agreed between the Landlord and the Tenant that the Landlord will not
be liable for any loss, injury, or damage to persons or property resulting
from falling plaster, steam, electricity, water, rain, snow or dampness, or
from any other cause.
51. It is agreed between the Landlord and the Tenant that the Landlord will not
be liable for any loss or damage caused by acts or omissions of other
tenants or occupants, their employees or agents or any persons not the
employees or agents of the Landlord, or for any damage caused by the
construction of any public or quasi-public works, and in no event will the
Landlord be liable for any consequential or indirect damages suffered by
the Tenant.
52. It is agreed between the Landlord and the Tenant that the Landlord will not
be liable for any loss, injury or damage caused to persons using the Common
Areas and Facilities or to vehicles or their contents or any other property
on them, or for any damage to property entrusted to its or their employees,
or for the loss of any property by theft or otherwise, and all property
kept or stored in the Premises will be at the sole risk of the Tenant.
LIENS
53. The Tenant will immediately upon demand by the Landlord remove or cause to
be removed and thereafter institute and diligently prosecute any action
pertinent thereto, any builders' or other lien or claim of lien noted or
filed against or otherwise constituting an encumbrance on any title of the
Landlord. Without limiting the foregoing obligations of the Tenant, the
Landlord may cause the same to be removed, in which case the Tenant will
pay to the Landlord as Additional Rent, the cost thereof including the
Landlord's legal costs.
GOVERNING LAW
54. It is the intention of the parties to this Lease that the tenancy created
by this Lease and the performance under this Lease, and all suits and
special proceedings under this Lease, be construed in accordance with and
governed, to the exclusion of the law of any other forum, by the laws of
the State of New York, without regard to the jurisdiction in which any
action or special proceeding may be instituted.
SEVERABILITY
55. If there is a conflict between any provision of this Lease and the
applicable legislation of the State of New York (the "Act"), the Act will
prevail and such provisions of the Lease will be amended or deleted as
necessary in order to comply with the Act. Further, any provisions that are
required by the Act are incorporated into this Lease.
56. If there is a conflict between any provision of this Lease and any form of
lease prescribed by the Act, that prescribed form will prevail and such
provisions of the lease will be amended or deleted as necessary in order to
comply with that prescribed form. Further, any provisions that are required
by that prescribed form are incorporated into this Lease.
AMENDMENT OF LEASE
57. Any amendment or modification of this Lease or additional obligation
assumed by either party in connection with this Lease will only be binding
if evidenced in writing signed by each party or an authorized
representative of each party.
ASSIGNMENT AND SUBLETTING
58. Without the prior, express, and written consent of the Landlord, the Tenant
will not assign this Lease, or sublet or grant any concession or license to
use the Premises or any part of the Premises. A consent by Landlord to one
assignment, subletting, concession, or license will not be deemed to be a
consent to any subsequent assignment, subletting, concession, or license.
An assignment, subletting, concession, or license without the prior written
consent of Landlord, or an assignment or subletting by operation of law,
will be void and will, at Landlord's option, terminate this Lease.
DAMAGE TO PREMISES
59. If the Premises, or any part of the Premises, will be partially damaged by
fire or other casualty not due to the Tenant's negligence or willful act or
that of the Tenant's employee, family, agent, or visitor, the Premises will
be promptly repaired by the Landlord and there will be an abatement of rent
corresponding with the time during which, and the extent to which, the
Premises may have been untenantable. However, if the Premises should be
damaged other than by the Tenant's negligence or willful act or that of the
Tenant's employee, family, agent, or visitor to the extent that the
Landlord will decide not to rebuild or repair, the term of this Lease will
end and the Rent will be prorated up to the time of the damage.
EMINENT DOMAIN AND EXPROPRIATION
60. If during the term of this Lease, title is taken to the whole or any part
of the Building by any competent authority under the power of eminent
domain or by expropriation, which taking, in the reasonable opinion of the
Landlord, does not leave a sufficient remainder to constitute an
economically viable building, the Landlord may at its option, terminate
this Lease on the date possession is taken by or on behalf of such
authority. Upon such termination, the Tenant will immediately deliver up
possession of the Premises, Base Rent and any Additional Rent will be
payable up to the date of such termination, and the Tenant will be entitled
to be repaid by the Landlord any rent paid in advance and unearned or an
appropriate portion thereof. In the event of any such taking, the Tenant
will have no claim upon the Landlord for the value of its property or the
unexpired portion of the term hereof, but the parties will each be entitled
to separately advance their claims for compensation for the loss of their
respective interests and to receive and retain such compensation as may be
awarded to each respectively. If an award of compensation made to the
Landlord specifically includes an award for the Tenant, the Landlord will
account therefor to the Tenant and vice versa.
CONDEMNATION
61. A condemnation of the Building or any portion of the Premises will result
in termination of this Lease. The Landlord will receive the total of any
consequential damages awarded as a result of the condemnation proceedings.
All future rent installments to be paid by the Tenant under this Lease will
be terminated.
TENANT'S REPAIRS AND ALTERATIONS
62. The Tenant covenants with the Landlord to occupy the Premises in a
tenant-like manner and not to permit waste. The Tenant will at all times
and at its sole expense, subject to the Landlord's repair, maintain and
keep the Premises, reasonable wear and tear, damage by fire, lightning,
tempest, structural repairs, and repairs necessitated from hazards and
perils against which the Landlord is required to insure excepted. Without
limiting the generality of the foregoing, the Tenant will keep, repair,
replace and maintain all glass, wiring, pipes and mechanical apparatus in,
upon or serving the Premises in good and tenantable repair at its sole
expense. When it becomes (or, acting reasonably, should have become) aware
of same, the Tenant will notify the Landlord of any damage to or deficiency
or defect in any part of the Premises or the Building. The Tenant will not
use or keep any device which might overload the capacity of any floor,
wall, utility, electrical or mechanical facility or service in the Premises
or the Building.
63. The Tenant covenants with the Landlord that the Landlord, its servants,
agents and workmen may enter and view the state of repair of the Premises
and that the Tenant will repair the Premises according to notice in writing
received from the Landlord, subject to the Landlord's repair obligations.
If the Tenant refuses or neglects to repair as soon as reasonably possible
after written demand, the Landlord may, but will not be obligated to,
undertake such repairs without liability to the Tenant for any loss or
damage that may occur to the Tenant's merchandise, fixtures or other
property or to the Tenant's business by reason thereof, and upon completion
thereof, the Tenant will pay, upon demand, as Additional Rent, the
Landlord's cost of making such repairs plus fifteen percent (15%) thereof
for overhead and supervision.
64. The Tenant will not make or have others make alterations, additions or
improvements or erect or have others erect any partitions or install or
have others install any trade fixtures, exterior signs, floor covering,
interior or exterior lighting, plumbing fixtures, shades, awnings, exterior
decorations or make any changes to the Premises or otherwise without first
obtaining the Landlord's written approval thereto, such written approval
not to be unreasonably withheld in the case of alterations, additions or
improvements to the interior of the Premises.
65. The Tenant will not install in or for the Premises any special locks, safes
or apparatus for air-conditioning, cooling, heating, illuminating,
refrigerating or ventilating the Premises without first obtaining the
Landlord's written approval thereto. Locks may not be added or changed
without the prior written agreement of both the Landlord and the Tenant.
66. When seeking any approval of the Landlord for Tenant repairs as required in
this Lease, the Tenant will present to the Landlord plans and
specifications of the proposed work which will be subject to the prior
approval of the Landlord, not to be unreasonably withheld or delayed.
67. The Tenant will promptly pay all contractors, material suppliers and
workmen so as to minimize the possibility of a lien attaching to the
Premises or the Building. Should any claim of lien be made or filed the
Tenant will promptly cause the same to be discharged.
68. The Tenant will be responsible at its own expense to replace all electric
light bulbs, tubes, ballasts or fixtures serving the Premises.
69. The Tenant will professionally steam clean any carpets on a yearly basis
and at the termination of this Lease or the Landlord may charge the Tenant
or deduct the cost of having the carpets professionally steam cleaned from
the security deposit.
LANDLORD'S REPAIRS
70. The Landlord covenants and agrees to effect at its expense repairs of a
structural nature to the structural elements of the roof, foundation and
outside walls of the Building, whether occasioned or necessitated by faulty
workmanship, materials, improper installation, construction defects or
settling, or otherwise, unless such repair is necessitated by the
negligence of the Tenant, its servants, agents, employees or invitees, in
which event the cost of such repairs will be paid by the Tenant together
with an administration fee of fifteen percent (15%) for the Landlord's
overhead and supervision.
CARE AND USE OF PREMISES
71. The Tenant will promptly notify the Landlord of any damage, or of any
situation that may significantly interfere with the normal use of the
Premises or to any furnishings supplied by the Landlord.
72. Vehicles which the Landlord reasonably considers unsightly, noisy,
dangerous, improperly insured, inoperable or unlicensed are not permitted
in the Tenant's parking stall(s), and such vehicles may be towed away at
the Tenant's expense. Parking facilities are provided at the Tenant's own
risk. The Tenant is required to park in only the space allotted to them.
73. The Tenant will not make (or allow to be made) any noise or nuisance which,
in the reasonable opinion of the Landlord, disturbs the comfort or
convenience of other tenants.
74. The Tenant will dispose of its trash in a timely, tidy, proper and sanitary
manner.
75. The Tenant will not engage in any illegal trade or activity on or about the
Premises.
76. The Landlord and Tenant will comply with standards of health, sanitation,
fire, housing and safety as required by law.
77. The hallways, passages and stairs of the building in which the Premises are
situated will be used for no purpose other than going to and from the
Premises and the Tenant will not in any way encumber those areas with
boxes, furniture or other material or place or leave rubbish in those areas
and other areas used in common with any other tenant.
SURRENDER OF PREMISES
78. The Tenant covenants to surrender the Premises, at the expiration of the
tenancy created in this Lease, in the same condition as the Premises were
in upon delivery of possession under this Lease, reasonable wear and tear,
damage by fire or the elements, and unavoidable casualty excepted, and
agrees to surrender all keys for the Premises to the Landlord at the place
then fixed for payment of rent and will inform the Landlord of all
combinations to locks, safes and vaults, if any. All alterations, additions
and improvements constructed or installed in the Premises and attached in
any manner to the floor, walls or ceiling, including any leasehold
improvements, equipment, floor covering or fixtures (including trade
fixtures), will remain upon and be surrendered with the Premises and will
become the absolute property of the Landlord except to the extent that the
Landlord requires removal thereof. Should the Tenant abandon the Premises
or should this Lease be terminated before the proper expiration of the term
due to a default on the part of the Tenant then, in such event, as of the
moment of default of the Tenant all trade fixtures and furnishings of the
Tenant (whether or not attached in any manner to the Premises) will, except
to the extent the Landlord requires the removal thereof become and be
deemed to be the property of the Landlord without indemnity to the Tenant
and as liquidated damages in respect of such default but without prejudice
to any other xxxxxxx remedy of the Landlord. Notwithstanding that any trade
fixtures, furnishings, alterations, additions, improvements or fixtures are
or may become the property of the Landlord, the Tenant will forthwith
remove all or part of the same and will make good any damage caused to the
Premises resulting from the installation or removal thereof, all at the
Tenant's expense, should the Landlord so require by notice to the Tenant.
If the Tenant, after receipt of such notice from the Landlord, fails to
promptly remove any trade fixtures, furnishings, alterations, improvements
and fixtures in accordance with such notice, the Landlord may enter into
the Premises and remove therefrom all or part of such trade fixtures,
furnishings, alterations, additions, improvements and fixtures without any
liability and at the expense of the Tenant, which expense will forthwith be
paid by the Tenant to the Landlord. The Tenant's obligation to observe or
perform the covenants contained herein will survive the expiration or other
termination of the term of this Lease.
HAZARDOUS MATERIALS
79. The Tenant will not keep or have on the Premises any article or thing of a
dangerous, inflammable, or explosive character that might unreasonably
increase the danger of fire on the Premises or that might be considered
hazardous by any responsible insurance company.
RULES AND REGULATIONS
80. The Tenant will obey all rules and regulations posted by the Landlord
regarding the use and care of the building, parking lot, laundry room and
other common facilities that are provided for the use of the Tenant in and
around the building containing the Premises.
ADDRESS FOR NOTICE
81. For any matter relating to this tenancy, whether during or after this
tenancy has been terminated:
a. the address of the Tenant is the Premises during this tenancy, and
Xxxxx 000, XXXX Xxxx, Xxxxxxxxxx. XX 00000 after this tenancy is
terminated, and
b. the address of the Landlord is 0 Xxxxx Xxxxxx Xxxxx, XX, both during
this tenancy and after it is terminated.
The Landlord or the Tenant may, on written notice to each other, change
their respective addresses for notice under this Lease.
RIGHT TO SHOW PREMISES
82. The Tenant acknowledged that the Landlord or its agent will have the right
to enter the Premises at all reasonable times to show them to prospective
purchasers, encumbrancers, lessees or assignees, and may also during the
ninety days preceding the termination of the terms of this Lease, place
upon the Premises the usual type of notice to the effect that the Premises
are for rent, which notice the Tenant will permit to remain on them.
NO WAIVER
83. No provision of this Lease will be deemed to have been waived by the
Landlord unless a written waiver from the Landlord has first been obtained
and, without limiting the generality of the foregoing, no acceptance of
rent subsequent to any default and no condoning, excusing or overlooking by
the Landlord on previous occasions of any default nor any earlier written
waiver will be taken to operate as a waiver by the Landlord or in any way
to defeat or affect the rights and remedies of the Landlord.
LANDLORD'S PERFORMANCE
84. Notwithstanding anything to the contrary contained in this Lease, if the
Landlord is delayed or hindered or prevented from the performance of any
term, covenant or act required under this Lease by reason of strikes, labor
troubles, inability to procure materials or services, power failure,
restrictive governmental laws or regulations, riots, insurrection,
sabotage, rebellion, war, act of God or other reason, whether of a like
nature or not, which is not the fault of the Landlord, then performance of
such term, covenant or act will be excused for the period of the delay and
the Landlord will be entitled to perform such term, covenant or act within
the appropriate time period after the expiration of the period of such
delay.
REMEDIES CUMULATIVE
85. No reference to or exercise of any specific right or remedy by the Landlord
will prejudice or preclude the Landlord from any other remedy whether
allowed at law or in equity or expressly provided for in this Lease. No
such remedy will be exclusive or dependent upon any other such remedy, but
the Landlord may from time to time exercise any one or more of such
remedies independently or in combination.
LANDLORD MAY PERFORM
86. If the Tenant fails to observe, perform or keep any of the provisions of
this Lease to be observed, performed or kept by it and such failure is not
rectified within the time limits specified in this Lease, the Landlord may,
but will not be obliged to, at its discretion and without prejudice,
rectify the default of the Tenant. The Landlord will have the right to
enter the Premises for the purpose of correcting or remedying any default
of the Tenant and to remain until the default has been corrected or
remedied. However, any expenditure by the Landlord incurred in any
correction of a default of the Tenant will not be deemed to waive or
release the Tenant's default or the Landlord's right to take any action as
may be otherwise permissible under this Lease in the case of any default.
GENERAL PROVISIONS
87. This Lease will extend to and be binding upon and inure to the benefit of
the respective heirs, executors, administrators, successors and assigns, as
the case may be, of each party to this Lease. All covenants are to be
construed as conditions of this Lease.
88. All sums payable by the Tenant to the Landlord pursuant to any provision of
this Lease will be deemed to be additional rent and will be recovered by
the Landlord as rental arrears.
89. Where there is more than one Tenant executing this Lease, all Tenants are
jointly and severally liable for each other's acts, omissions and
liabilities pursuant to this Lease.
90. The Tenant will be charged an additional amount of $25.00 for each N.S.F.
check or check returned by the Tenant's financial institution.
91. All schedules to this Lease are incorporated into and form an integral part
of this Lease.
92. Headings are inserted for the convenience of the parties only and are not
to be considered when interpreting this Agreement. Words in the singular
mean and include the plural and vice versa. Words in the masculine mean and
include the feminine and vice versa.
93. This Agreement may be executed in counterpart.
94. Time will be of the essence of this Agreement.
95. This Lease will constitute the entire agreement between the Landlord and
the Tenant. Any prior understanding or representation of any kind preceding
the date of this Lease will not be binding on either party except to the
extent incorporated in this Lease. In particular, no warranties of the
Landlord not expressed in this Lease are to be implied.
IN WITNESS WHEREOF Field Afar Properties, LLC and BioLife Solutions, Inc.
have duly affixed their signatures by duly authorized officers under seal on
this 8th day of January, 2004.
Field Afar Properties, LLC
per: /s/ Xxxxxx Xxxxx (SEAL)
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BioLife Solutions, Inc.
per: /s/ Xxxx X. Xxxxx (SEAL)
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