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EXHIBIT 10.9
AMENDMENT TO LEASE AGREEMENT
The first amendment to lease agreement ("AGREEMENT") made and entered
into this 20th day of December, 1994 by and between REDGATE III LIMITED
PARTNERSHIP ("LANDLORD") AND MICROBIOLOGICAL ASSOCIATES, INC. ("TENANT").
WITNESSETH:
WHEREAS, the LANDLORD and TENANT entered into a certain lease
("LEASE") dated October 31, 1994 covering 1,243 square feet of space located in
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx ("BUILDING"); and
WHEREAS, the LANDLORD and TENANT desire to enter into an agreement
terminating the LEASE effective December 13, 1994, ("Termination Date")
relating the TENANT of all obligations and burdens under the LEASE and TENANT
hereby discharges the LANDLORD from any and all claims, demands or causes of
action whatsoever out of or in connection with the Leased Premises, arising
prior to, on or after the Termination Date.
IN WITNESS WHEREOF, LANDLORD and TENANT have caused this AGREEMENT to
be executed as of this ___ day of December, 1994 and do hereby declare this
AGREEMENT to be binding on them, their respective successors and assigns.
WITNESS: LANDLORD:
Redgate III Limited Partnership
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Xxxxxxx X. Xxxxxxx, Xx.
ATTEST: TENANT:
Microbiological Associates, Inc.
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Xxxx X. Xxxxxx
Senior Vice President
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 31st day of October, 1994, by and
between REDGATE III LIMITED PARTNERSHIP, hereinafter called "LANDLORD," and
MICROBIOLOGICAL ASSOCIATES, INC., hereinafter called "TENANT."
W I N E S S E T H:
1. LEASED PREMISES
LANDLORD hereby demises unto TENANT, and TENANT hereby leases
from LANDLORD for the terms and upon the conditions set forth in this Lease
1,243 square feet of space in the building located at 0000 Xxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxx, XX (hereinafter referred to as "Building"), as laboratory
facilities, all as set forth on Exhibit A, hereto attached, said space being
referred to as "Premises."
2. TERM
The term of this Lease shall be for a period of One year,
commencing on the 1st day of December, 1994 and terminating on the 30th day of
November, 1995 with an option for an additional year at the same terms and
conditions in this Lease, provided that TENANT shall have given the LANDLORD
written notice of TENANT's intention to do so at least six (6) months prior to
the expiration of this Lease. TENANT shall have the option to terminate this
Lease at any time by giving the LANDLORD 30 days prior written notice.
The date of delivery of the Premises by LANDLORD to TENANT shall be
that date on which all required improvements to be furnished by LANDLORD as
stated in Exhibit "A" have been substantially completed except for punch list
items, the occupancy certificate has been issued, and there are no liens,
suits, or proposed or existing laws or regulations which would interfere with
TENANT's uses or possession of the Premises or the Building. The TENANT shall
be responsible for filing and obtaining any other permits for their equipment
and licenses. Rent shall be pro-rated for any portion of the initial month in
which TENANT is required to commence rental payments hereunder, which does not
commence with the first day thereof. At the time the Premises are delivered to
the TENANT, the TENANT and LANDLORD shall sign a "Lease Commencement Date"
letter, which letter shall become part of this Lease Agreement.
At any time prior to delivery of possession of the Premises, TENANT
shall have the right to enter upon the demised Premises for the purpose of
taking measurements herein, provided, however, that such entry shall not
unreasonably interfere with or obstruct the progress of work being done by the
LANDLORD.
If requested by the TENANT at anytime, LANDLORD shall forthwith join
TENANT in recording a memorandum of this Lease Agreement at Tenant's sole
expense.
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3. RENT
The TENANT shall pay to the LANDLORD an annual rental (herein
called "minimum rent") in the amount of Twenty Thousand Five Hundred Nine &
50/100 DOLLARS ($20,509.50), subject to adjustment as hereinafter set forth,
payable without deduction or set off in equal monthly installments of One
Thousand Seven Hundred Nine & 13/100 DOLLARS ($1,709.13) per month in advance,
the first installment of which is due and payable upon signing of the Lease and
upon commencement all subsequent installments due and payable on the 1st day of
each calendar month thereafter beginning January 1, 1995 until the total rent
provided for herein is paid. No payment by TENANT or receipt of LANDLORD of a
lesser amount than a monthly installment of rent herein stipulated shall be
deemed to be other than on account of such stipulated rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction, and LANDLORD may accept
such check for payment without prejudice to LANDLORD's right to recover the
balance of such rent or pursue any other remedy provided for in this Lease.
4. ADJUSTMENT OF MINIMUM RENT
The minimum rent shall be adjusted at the end of each year
during the term hereof by a 3% increase over the rent then being paid. There
also shall be no additional pass-throughs of increases in operating expenses
except as specifically referenced herein.
5. REAL ESTATE TAXES
N/A.
6. UTILITIES
TENANT shall be responsible for the payment of all utilities
used or consumed by the TENANT in and upon the Premises. Electric and Gas to
be separately metered. Water is to be either separately metered or an
equitable allocation be made between the tenants based on the quality of water
consumed. In the event any utility service to the Premises shall be
interrupted for a period of more than two (2) days due to the negligence or
willful misconduct of LANDLORD, its agents or servants, then the minimum rent
shall xxxxx from the interruption of such services until such services are
fully restored.
LANDLORD shall not be liable to TENANT for any damage or inconvenience
caused by the cessation or interruption of any utility service, or the
elevators in the Building, occasioned by fire, accident, strike or other cause
beyond LANDLORD's control.
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7. EXCLUSIVE USE
TENANT shall have the right to use the demised Premises for
the operation of offices and laboratories consistent with TENANT's business and
for no other purpose, except as approved by the LANDLORD in advance in writing,
such approval not to be unreasonably withheld.
8. LATE CHARGE
If any installment of rent accruing hereunder or any other
sums payable hereunder shall not be paid within fifteen (15) days after written
notice to TENANT, such installment and other sums shall be increased without
affecting the LANDLORD's other rights under this Lease, by a late charge of
five (5%) percent of the delinquent installment. Anything contained herein to
the contrary notwithstanding, LANDLORD shall waive the late charge set forth
herein for the first two (2) late payments during each Lease year of the term
of this Lease, provided that such payments shall be made with 10 days of
written notice to TENANT for such lateness.
9. REPAIRS AND MAINTENANCE
LANDLORD shall be responsible for all structural repairs,
including repairs to the roof and load-bearing walls of the Building, and for
maintaining the parking area. The LANDLORD shall be responsible for walkways,
and all common areas within and around the Building. The TENANT shall be
responsible for the maintenance and repair of the Premises and all fixtures,
appliances and equipment therein, including, but not limited to, the Heating
and Air Conditioning system. LANDLORD will pay for major Heating and Air
Conditioning components replacement and all repairs to the heating and air
conditioning system in excess of Two Hundred Fifty Dollars ($250.00) per
occurrence.
TENANT shall also provide its own char service. LANDLORD will repair
and replace any glass breakage, provided it is not the result of the TENANT's
willful or negligent act.
TENANT, at is sole expense, shall keep all TENANT fixtures and
equipment in the Premises in safe and sanitary condition and good order and
repair, together with related plumbing, electrical or other utility service,
whether installed by TENANT or by the LANDLORD on TENANT's behalf. TENANT
shall pay for all damage to the Building and any fixtures and appurtenances
related thereto due to the malfunction, lack of repair, or improper
installation of the TENANT's fixtures and equipment.
10. LANDLORD'S WORK PRIOR TO COMMENCEMENT OF TERM
LANDLORD shall make the following improvements to the Premises
prior to the commencement of the term of the Lease:
Construction in accordance with Exhibit A.
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11. TENANT ALTERATIONS
All alterations, improvements, or additions to the demised
Premises to be made by TENANT shall be subject to the written consent of the
LANDLORD, which consent shall not be unreasonably withheld, provided such
alterations and improvements do not weaken the structural integrity of the
Building or detract from its dignity and/or uniformity. All alterations and
improvements and/or additions made by TENANT shall remain upon the Premises at
the expiration or earlier termination of this Lease and shall become the
property of the LANDLORD, unless LANDLORD shall, at the time of approval of the
alteration, provide written notice to TENANT to remove the same, in which event
TENANT shall remove such alterations, improvements and/or additions, and
restore the Premises to the same good order and condition in which it was at
the commencement of this Lease, reasonable wear and tear and unavoidable
casualty excepted. Should TENANT fail to do so, LANDLORD may do so,
collecting, at LANDLORD's option, the reasonable and expenses thereof from
TENANT as additional rent.
Notwithstanding the preceding paragraph, if at the time TENANT
proposes any alterations, improvements, or additions, TENANT designates in
writing and the LANDLORD agrees in writing, then TENANT may remove them upon
such expiration or termination.
12. TRADE FIXTURES
All trade fixtures, telephone equipment, and apparatus
installed by TENANT in the leased Premises shall remain the property of TENANT
and shall be removed at the expiration or earlier termination of this Lease,
and provided further that in the event of such removal, TENANT shall promptly
restore the Premises to their good order and condition, reasonable wear and
tear resulting from such removal excepted. Any such trade fixture not removed
prior to such termination shall become the property of the LANDLORD.
13. HAZARDOUS STORAGE
TENANT shall be permitted to store hazardous materials on the
Premises, however, any such storage and use of such materials shall comply with
all Federal, State, County and City regulations relative to such use and
storage of said materials. Any hazardous materials stored or used on the
Premises must not, in any way, prejudice the insurance of the Premises, or
increase the fire hazards to a greater extent than necessarily incident to the
business, for which the Premises are leased, and all such materials must be
completely removed upon expiration of this Lease. TENANT's use or storage of
such materials on the Premises which does not affect the Building's insurance
or its fire rating shall not be a default under this Lease, but TENANT shall be
responsible for any resulting insurance premium increase.
All such materials must be completely removed upon expiration of this
Lease, and any decontamination certificates required by the LANDLORD or any
government authority must be obtained and delivered to the LANDLORD.
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14. SIGNS
TENANT may display appropriate signs inside and on the outside
of the Building but such signs shall be subject to the written approval of the
LANDLORD, which will not unreasonably be withheld, and said signs shall be in
full conformance with any applicable regulations or ordinances of local
governmental authorities having jurisdiction.
15. QUIET ENJOYMENT
LANDLORD covenants that, upon payment of the rent herein
provided and performance by the TENANT of all other covenants herein contained,
TENANT shall and may peaceably and quietly have, hold and enjoy the Premises
for the term hereof and options.
16. SURRENDER OF PREMISES
Upon the expiration or termination of this Lease, TENANT shall
quit and surrender the Premises to the LANDLORD broom clean and shall remove
all of its property therefrom. If the removal of any such property shall
result in damaging the Premises, or leaving any holes in the floors, walls, or
ceiling therein, the TENANT shall make the appropriate repairs with LANDLORD
approved Building materials prior to the expiration of this Lease. The
obligation of this paragraph shall survive the termination of the Lease.
17. FIRE AND LIABILITY INSURANCE
TENANT covenants and agrees to maintain and carry, at all
times during the term of this Lease, in companies qualified and authorized to
transact business in the State of Maryland, extended coverage in the amounts of
$500,000.00 per person, $1,000,000.00 per occurrence and $100,000.00 for damage
to property on the Premises.
TENANT shall indemnify and hold harmless the LANDLORD and name
LANDLORD as additional insured on policy regarding any and all liability,
damage, expense, cause of action, or claims arising out of injury to persons or
to property on the Premises, except for the negligence or willful misconduct of
LANDLORD, its agents, employees, or servants. TENANT shall maintain at all
times during the term of this Lease, in companies qualified and authorized to
transact business in the State of Maryland, public liability insurance with
limits in same coverage as above.
TENANT shall furnish LANDLORD with satisfactory proof that the
insurance herein provided for is at all times in full force and effect.
18. DAMAGE BY FIRE
If the Premises shall be partially damaged by fire, casualty,
or the elements, but are not rendered untenable, in Tenant's reasonable
business judgment, in whole or in part, the LANDLORD shall promptly, at his
expense, cause such damage to be repaired and the rent shall
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not be abated. If by reason of such occurrence the Premises shall be rendered
wholly or partially unfit for occupancy for the uses contemplated hereunder,
LANDLORD shall promptly, at his own expense, cause the damage to be repaired,
and the rent meanwhile shall be abated proportionately as to the proportion of
the Premises rendered unfit. If the Building, or common areas appurtenant
thereto, shall be rendered wholly unfit for the occupancy or for the use
contemplated hereunder, in Tenant's reasonable business judgment, by reason of
such occurrence, whether the Premises have been damaged or not, and if such
damage in the opinion of the LANDLORD cannot be restored to tenantable
occupancy within sixty days of the date of the occurrence, either the LANDLORD
or TENANT may terminate this Lease on thirty (30) days written notice to the
other. In the event LANDLORD determines that the damage can be repaired to
tenantable occupancy within sixty (60) days, but fails for any reason including
reasons beyond the control of LANDLORD to commence such repairs within 30 days
and complete them within 60 days from the time of the occurrence, the TENANT
may terminate this Lease upon 30 days notice to the LANDLORD. In the event the
Premises are rendered wholly untenable during the last two years of the term
hereof, TENANT may terminate this Lease upon thirty (30) days notice to the
LANDLORD.
19. ASSIGNMENT OR SUBLETTING
TENANT acknowledges that the LANDLORD has entered into this
Lease because of TENANT's financial strength, goodwill, ability and expertise
and that accordingly, this Lease is personal to TENANT. Taking this into
consideration, TENANT agrees not to assign, mortgage, sublet, pledge or
encumber this Lease, in whole or in part, except with the written consent of
the LANDLORD, which shall not be unreasonably withheld or delayed. TENANT
agrees that, in the event of any such assignment or subletting, the TENANT
shall nevertheless remain liable for the performance of all terms, covenants,
and conditions of this Lease.
20. SUBORDINATION
This Lease shall be subject to and subordinate at all times to
the lien of any mortgage and/or deeds of trust and all land leases now or
hereafter made on any portion of the demised Premises, and to all advances
thereunder, provided the mortgagee or trustee named in said mortgage or deed of
trust shall agree to recognize this Lease Agreement and agrees, in the event of
foreclosure, not to disturb the TENANT's possession hereunder, provided TENANT
has not committed any event of default as to which the applicable cure period
has not expired under the Lease Agreement. This subordination shall be
self-operative and no further instrument of subordination shall be required.
21. ATTORNMENT
If any proceedings are commenced to foreclose any mortgage or
deed of trust encumbering the Premises. TENANT agrees to attorn the purchaser
at the foreclosure sale, if required to do so by any such purchasers, and to
recognize such purchaser as the LANDLORD under this Lease, provided, purchaser
shall agree that TENANT's rights hereunder shall not be
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disturbed so long as TENANT has not committed any event of default as to which
the applicable cure period has not expired.
22. CONDEMNATION
(a) If the whole of the demised Premises shall be taken
by any governmental or quasi-governmental authority under the power of
condemnation, eminent domain or expropriation, or in the event of conveyance in
lieu thereof, the Lease shall terminate as of the day possession shall be taken
by the governmental authority and the entire award shall be the property of the
LANDLORD, except for the value of (1) any improvements, alterations or
additions made to the Premises at TENANT's sole cost and expense, including but
not limited to, fixtures or equipment installed by TENANT and (2) any unexpired
period of the term of this Lease. TENANT shall have the right to claim and
recover from the condemning authority such compensation as may be separately
awarded or recoverable by TENANT's business by reason of the condemnation and
for or on account of any cost or loss to which TENANT might incur for moving
expenses, including but not limited to TENANT's fixtures, equipment and
furnishings.
(b) In the event there is any taking by governmental or
quasi-governmental authority of a portion of the demised Premises, or the
Building of which the Premises form a part, or the common areas appurtenant
thereto, and which does not result in diminution in value of the Premises,
there shall be no abatement of rent. If any such taking does result in a
diminution in value of the Premises, there shall be an equitable abatement of
rent. If any such condemnation reduces the number of parking spaces to which
TENANT is entitled and which remain available to TENANT after the condemnation,
there shall likewise be an equitable abatement of rent.
(c) In the event of any taking or conveyance of the
Premises or the Building of which the Premises form a part or the common areas
appurtenant thereto, or any portion thereof which shall render the Premises
wholly unfit for the occupancy of TENANT or the uses contemplated hereunder in
TENANT's reasonable business judgment, TENANT may terminate this Lease at any
time upon thirty (30) days written notice to LANDLORD.
(d) In the event of any taking or conveyance of the
Premises of the Building of which the Premises form a part or the common areas
appurtenant thereto, or any portion thereof, TENANT shall pay rent to the day
when possession thereof shall be taken by the governmental authority with an
appropriate refund by LANDLORD of such rent as may have been paid in advance
for a period subsequent to such date. If this Lease shall continue in effect
as to any portion of the demised Premises not so taken or conveyed, the rent
shall be reduced to an amount computed according to the floor space remaining.
If this Lease shall continue, LANDLORD, at its expense, but only to the extent
of any equitable proportion of the award or to other compensation for the
portion taken or conveyed of the improved portion of the Premises and
consequential damages to the remainder hereof not taken (excluding any award or
other compensation for the land), shall make all necessary repair or
alterations so as to constitute the remaining demised Premises a complete
architectural and tenable unit. In the event that Landlord's repairs and
alterations to the Premises, or to the Building of which the Premises form
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a part, or to the common areas appurtenant thereto, do not restore the Premises
to a condition fit for the occupancy of or for the uses contemplated hereunder
in TENANT's reasonable business judgment, TENANT may terminate this Lease at
any time upon thirty (30) days written notice to LANDLORD.
(e) TENANT shall be entitled to such award as may be
given to it by the condemning authority for the value of its fixtures and
equipment (if separate awards are given) or if only one award is given by the
condemning authority for all interests, said award shall be apportioned between
the parties as their respective interest shall appear. In the event LANDLORD
and TENANT are unable to agree as to the amount of rental reduction which may
be required under sub-paragraphs b and c, above, or the apportionment of any
award made by the condemning authority, such matter shall be submitted to
arbitration under the rules of the American Arbitration Association then in
effect.
23. EVENTS OF DEFAULT
The occurrence of any of the following shall constitute an
event of default hereunder:
(a) Failure of TENANT to pay installment of rent
hereunder within ten (10) days after receipt of written notice, or within
twenty (20) days after receipt of written notice any other sum herein required
to be paid by TENANT.
(b) Tenant's failure to perform any other covenant or
condition of this Lease within thirty (30) days after receipt of written notice
and demand, unless the failure is of such a character as to require more than
thirty (30) days to cure in which event TENANT's failure to proceed diligently
to cure such failure shall constitute an event of default.
24. LANDLORD'S REMEDIES
Upon the occurrence of any event of default, LANDLORD may, at
LANDLORD's sole option, exercise any or all of the following remedies, together
with any such other remedies as may be available to LANDLORD at law or in
equity:
(a) LANDLORD may terminate this Lease by giving TENANT
written notice of its election to do so, as of a specified date not less than
thirty (30) days after the date of the giving of such notice and this Lease
shall then expire on the date so specified and LANDLORD shall then be entitled
to immediately regain possession of the demised Premises as if the date had
been originally fixed as the expiration date of the term of this Lease.
LANDLORD may then re-enter upon the leased Premises with due process of law and
remove all persons therefrom. TENANT expressly agrees that the exercise by
LANDLORD of the right or re-entry shall not be a bar to or prejudice in any way
the other legal remedies available to LANDLORD. In that event, LANDLORD shall
be entitled to recover from TENANT as and for liquidated damages an amount
equal to the rent and additional rent reserved in this Lease less any and all
amounts received by LANDLORD from the rental of the Premises to another tenant.
Nothing herein
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contained, however, shall limit or prejudice the right of LANDLORD to prove for
and obtain as liquidated damages, by reason of such termination, an amount
equal to the maximum allowed by any statute or rule of law in effect at the
time when, and governing the proceeding in which, such damages are to be
proved, whether or not such amount may be greater, equal to, or less than the
amount of the difference referred to above, and LANDLORD may in his own name,
but as agent for TENANT, re-let the Premises, and will allow TENANT to find a
new tenant. Any recovery by the LANDLORD shall be limited to the rent
hereunder (plus any cost incurred in re-letting) less any rent actually paid by
the new tenant.
(b) No termination of this Lease nor any taking or
recovery of possession of the demised Premises shall deprive LANDLORD of any of
his remedies or actions against TENANT for past or future rent, nor shall the
bringing of any action for rent or breach of covenant, or the resort to any
other remedy herein provided for the recovery of rent, be construed as a waiver
of the right to obtain possession of the Premises.
(c) In addition to any damages becoming due under
subparagraph (a) hereof, LANDLORD shall be entitled to recover from TENANT and
TENANT shall pay to LANDLORD an amount equal to all expenses, if any, incurred
by the LANDLORD in recovering possession of the demised Premises, and all
reasonable costs and charges for the care of said Premises while vacant, which
damages shall be due and payable by TENANT to LANDLORD at such time or times as
such expenses are incurred by the LANDLORD.
(d) In the event of a default or threatened default by
TENANT of any of the terms or conditions of this Lease, LANDLORD shall have the
right of injunction and the right to invoke any remedy allowed by law or in
equity as if no specific remedies of LANDLORD were set forth in this Lease.
(e) It is further provided that if, under the provisions
of this lease, default be made and a compromise and settlement shall be had
thereupon, it shall not constitute a waiver of any covenant herein contained,
nor of the Lease itself; and it is hereby specifically agreed that this Lease
shall not merge in any judgment prior to termination of Tenant's possession,
the lease in such event to continue by the payment of rent herein reserved, and
the further performance of the covenants herein contained on the part of
TENANT.
25. RIGHTS OF LANDLORD
LANDLORD reserves the following rights with respect to the
demised Premises:
(a) During normal business hours, upon 24 hours notice,
by them or their duly authorized agents, to go upon and inspect the demised
Premises and every part thereof, and at Landlord's option, to make repairs,
alterations and additions to the demised Premises or the Building of which the
demised Premises are a part, provided there is no interference with Tenant's
occupancy. An Agent of the TENANT may be present for inspection, if required
by TENANT.
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(b) To display after notice from either party of
intention to terminate this Lease, a "For Rent" sign, and all of said signs
which shall be placed upon such part of the demised Premises as LANDLORD shall
require, except on display windows or doors leading into the demised Premises.
Prospective purchases or tenants authorized by LANDLORD may inspect the
Premises during normal business hours following adequate notice to TENANT.
(c) To install or place upon, or fix to, the roof and
exterior walls of the demised Premises, equipment, signs, displays, antennae,
and any other object or structure of any kind, providing the same shall not
materially impair the structural integrity of the Building or interfere with
Tenant's occupancy.
(d) In implementing the foregoing rights, Landlord
acknowledges and agrees that Tenant's use of the Premises will involve
sensitive and hazardous materials, procedures, and substances; therefore all
rights of LANDLORD under this section shall be subject to prior coordination
with and approval by and under the reasonable conditions set forth by the
TENANT. LANDLORD shall be liable to TENANT for any costs, damage, or expense
caused by the exercise of any rights of LANDLORD in violation of the conditions
set forth by TENANT as provided under this section 25.
26. HOLDING OVER
Unless otherwise agreed, if TENANT holds possession of the
Premises after the termination of this Lease or any renewal or extension
thereof, TENANT shall become a TENANT from month to month at 125% of the
current escalated rental rate.
27. WAIVER OF CLAIMS
Except as may result from their negligence, LANDLORD and
Landlord's agents, employees and contractors shall not be liable for, and
TENANT hereby releases all claims for damages to persons or property sustained
by TENANT or any person claiming through TENANT resulting from any fire,
accident, occurrence to condition in or upon the demised Premises or Building
of which they are a part, including but not limited to such claims for damage
resulting from (1) any defect in or failure of plumbing, heating or
air-conditioning equipment, electric wiring or installation thereof, water
pipes, stairs, railings or walks; (2) any equipment of apparatus becoming out
of repair; (3) the bursting, leaking or running of any tank, washstand, water
closet, waste pipe, drain or any other pipe or tank in, upon or about such
Building or Premises; (4) the backing up of any sewer pipe or down spout; (5)
the escape of steam or hot water; (6) water, snow or ice being upon or coming
through the roof of any other place upon or near such Building or Premises or
otherwise; (7) the falling of any fixtures, plaster or stucco; (8) broken
glass; and (9) any act or omission of occupants of adjoining or contiguous
property of Buildings.
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28. NOTICE
All notices required under this Lease shall be given in
writing and shall be deemed to be properly serviced if sent by courier,
certified or registered United States Mail, postage prepaid, return receipt
requested as follows:
If to the LANDLORD: REDGATE III LIMITED PARTNERSHIP
00000 XXXXX XXXXX XXXX
XXXXXXXXX, XX 00000
If to the TENANT: MICROBIOLOGICAL ASSOCIATES
0000 XXXXXXXXX XXXX
XXXXXXXXX, XX 00000
Attn.: Chief Financial Officer
or to such other address as either may have designated from time to time by
written notice to the other. The date of service of such notices shall be the
date such notices are received by addressee.
29. COVENANTS OF TENANT
TENANT covenants and agrees:
(a) To give to LANDLORD prompt written notice of any
accident, fire, or damage occurring on or to the demised Premises.
(b) To keep thermostat in the Premises set at a
temperature sufficient to prevent freezing of water pipes, fixtures and HVAC
units.
(c) Except as otherwise provided in Section 9 of this
Lease, to keep the demised Premises clean, orderly, sanitary, and free from all
objectionable odors and from insects, vermin and other pests.
(d) To comply with the requirements of the State, Federal
and County statutes, ordinances, and regulations applicable to TENANT and its
use of the demised Premises, and to save LANDLORD harmless from penalties,
fines, costs, and expenses resulting from failure to do so, provided TENANT
shall not be obligated to make structural repairs or alterations to so comply.
(e) TENANT shall promptly pay all contractors, material
and men it engages to perform work and provide materials for construction work
on the Premises so as to minimize the possibility of a lien attaching to the
Premises, and should any such lien be made or filed, TENANT shall cause the
same to be discharged and released of record by bond or otherwise within 10
days of receipt of written request from LANDLORD.
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(f) Upon request, Tenant shall supply the Landlord with
yearly audited financial statements. Landlord agrees to keep the statements
confidential and not to release the statements to third parties except with the
written consent of the Tenant which shall not be unreasonably withheld.
30. COVENANTS OF LANDLORD
LANDLORD warrants that:
(a) the property containing the Building is presently
zoned to allow as a matter of right Tenant's use of the Premises for
biotechnology testing and laboratory purposes, and LANDLORD has no knowledge or
notice of any proposal, regulation, or other fact which is or may be
inconsistent with such uses;
(b) as of the commencement date of the term under Section
2 of this Lease, and as preconditions to Tenant's obligations:
(i) title to the Building and the land on which
it is located (the "Property") shall be
insurable in favor of Tenant as lessee at
regular rates by a title company of Tenant's
choice and at Tenant's sole cost, showing
Landlord as the current owner or land lessee
of the Property and subject only to
mortgages/deeds of trust/land leases and
other encumbrances ("Liens") which do not as
of the commencement date (in Tenant's
reasonable opinion) materially interfere with
Tenant's uses of the Property as stated in
the Lease, all such Liens being listed in
attached Exhibit B; and
(ii) Landlord shall have delivered to Tenant in
recordable format (any recording charges to
be at Tenant's sole cost) non-disturbance
agreements in reasonable form from Landlord
and from each mortgagee, deed of trust
beneficiary, and land lessor listed in
Exhibit B, agreeing that not withstanding
such other party's interest in the Property,
upon Tenant's paying the rent reserved in
this Lease and performing the other covenants
to be performed by Tenant, no action of such
other party or its successors in interest
will affect or disturb Tenant's possession
and use of the Premises or the Property, and
that any future mortgagee, deed of trust
beneficiary, or land lessor will likewise be
required to provide Tenant with a similar
nondisturbance agreement. Nothing in the
proceeding sentence shall be construed to
prohibit Landlord in the future from
mortgaging, granting a deed of trust for, or
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taking a revised land lease for the Premises
or the Property, to which this Lease will be
subordinate, provided that such future
mortgage, deed of trust, or land lease
recites that upon Tenant's paying the rent
reserved in this Lease and performing the
other covenants to be performed by Tenant, no
action of such other party or its successors
in interest will affect or disturb Tenant's
possession or use of the Premises or the
Property.
31. LANDLORD'S RIGHT TO ALTER SITE PLAN
LANDLORD shall, from time to time, have the right to alter or
modify the site plan of the Building and to rearrange the driveways and parking
areas, as well as the entrance and exits to the Premises, such alterations to
be subject to TENANT approval.
32. PARKING SPACES
LANDLORD agrees to furnish 3 1/3 unreserved parking spaces per
thousand square feet of space occupied by the TENANT.
33. ENTIRE AGREEMENT
This Lease contains the entire agreement of the parties.
There are no oral agreements existing between them.
34. SUCCESSORS AND ASSIGNS
This Lease, and the covenants and conditions herein contained
shall inure to the benefit of and be binding upon the LANDLORD, his heirs and
assigns, and shall insure to the benefit of and be binding upon the TENANT, its
successors and assigns, if permitted.
35. BANKRUPTCY
If TENANT shall make an assignment of its assets for the
benefit of creditors, or if TENANT shall file a voluntary petition in
bankruptcy, or if any involuntary petition in bankruptcy or for receivership be
instituted against the TENANT and the same be not dismissed within one hundred
twenty (120) days of the filing thereof, or if TENANT shall be adjudged
bankrupt, then and in any of said events, this Lease shall immediately cease
and terminate at the option of the LANDLORD with the same force and effect as
though the date of such event was the date herein fixed for expiration of the
term of this Lease.
36. NON-DELIVERY
In the event the LANDLORD shall be unable to give possession
of the Premises because construction of the Building is not complete or for any
other cause reasonable beyond
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the control of the LANDLORD, the LANDLORD shall not be liable to TENANT for any
damage resulting from failure to give possession.
37. PARTIAL INVALIDITY
If any term, covenant, or condition of this Lease or the
application thereof to any person or circumstance shall be held to be invalid
and unenforceable, the remainder of this lease and the application of such
terms, covenants, or conditions shall be valid and enforceable to the fullest
extent permitted by law.
38. FORCE MAJEURE
With the exception of those provisions contained herein
regarding the payment of rent, the inability of either party to perform any of
the terms, covenants or conditions of this Lease shall not be deemed a default
if the same shall be due to any cause beyond the control of that party.
39. WAIVER OF SUBROGATION
If either party hereto is paid any proceeds under any policy
of insurance naming such party as an insured on account of any loss, damage or
liability, then such party hereby releases the other party to (and only to) the
extent of the amount of such proceeds, from any and all liability for such loss
or damage, notwithstanding negligent or intentionally tortuous act or omission
of the other party, its agents or employees; provided, such release shall be
effective only as to a loss or damage occurring while the appropriate policy of
insurance of the releasing party provides that such release shall not impair
the effectiveness of such policy or the insured's ability to recover
thereunder. Each party hereto shall use reasonable efforts to have a clause to
such effect included in its said policies, and shall promptly notify the other
in writing if such a clause cannot be included in any such policy.
40. ESTOPPEL CERTIFICATE
The TENANT shall from time to time, within five (5) business
days after being requested to do so by the LANDLORD or any Mortgagee, execute,
acknowledge and deliver to the LANDLORD (or, at the Landlord's request, to any
existing or prospective purchaser, transferee, assignee or Mortgagee of any or
all of the Premises) an instrument in recordable form, certifying (a) that this
Lease is unmodified and in full force and effect (or, if there has been any
modification thereof, that it is in full force and effect as so modified,
stating therein the nature of such modification); (b) as to the dates to which
the minimum Rent and other charges arising hereunder have been paid; (c) as to
the amount of any prepaid Rent or any credit due to the Tenant hereunder; (d)
that the TENANT has accepted possession of the Premises, and the date on which
the Term commenced; (e) as to whether, to the best knowledge, information and
belief of the signer of such certificate, the LANDLORD or the TENANT is the in
default in performing any of its obligations hereunder (and, if so, specifying
the nature of each such default); and (f) as to any other fact or condition
reasonably requested by the LANDLORD or such other addressee.
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In the event the TENANT fails or refuses to provide such a certificate, TENANT
shall be liable to LANDLORD for any loss or damage (including reasonable
counsel fees) arising out of or in connection with such failure or refusal.
IN WITNESS WHEREOF, the parties have caused this Lease Agreement to be
executed on the year and date first written.
WITNESS: LANDLORD:
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Xxxxxxx X. Xxxxxxx Date
ATTEST: TENANT:
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Xxxx X. Xxxxxx Date
Senior Vice President
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