LEASE OF OFFICE SPACE
AGREEMENT OF LEASE, made as of this 5th day of October, 1994, between SC
PROPERTIES, LLC, a _____________________ having its principal office at 70
CASCADE BOULEVARD, MILFORD, CT (the "Landlord"), and CARDIOPULMONARY
CORPORATION, a corporation organized and existing under the laws of the State of
Delaware having its principal at 200 CASCADE BOULEVARD, MILFORD, CT (the
"Tenant").
WITNESSETH:
1. DEMISE OF PREMISES.
1.1 Landlord hereby leases to Tenant and Tenant hereby hires from Landlord
that space consisting of 6,942 rentable square feet ("Rentable Square Feet")
contained in that certain building (the "Building"), as outlined in red on the
plan attached hereto as Exhibit A (said outlined area being hereafter referred
to as the "Demised Premises"), which Building is located on property known as
200 CASCADE BOULEVARD, MILFORD, Connecticut (the "Property"), all of which is a
part of Northbrook Business Park (the "Park"), to commence on AUGUST 1, 1994
(the "Commencement Date") and to expire THREE (3) year(s) and 0 months from the
Commencement Date (the "Expiration Date"), both dates inclusive (or until such
term shall sooner cease and expire as hereinafter provided). The Commencement
Date through the Expiration Date, or such earlier termination date in accordance
herewith, shall hereinafter be referred to as the "Term". The above
notwithstanding, if Landlord is unable to deliver possession of the Demised
Premises to Tenant on the Commencement Date due to holding over or retention of
the Demised Premises by prior tenants, or due to the fact that a certificate of
occupancy or a temporary certificate of occupancy is not available for the
Demised Premises on the Commencement Date, as applicable, or for any other
reason beyond Landlord's control this Lease shall remain in full force and
effect as to all terms and conditions, including the Expiration Date, except
that the Commencement Date shall be deemed to be the date on which possession of
the Demised Premises are delivered to Tenant, in accordance with written notice
from Landlord to Tenant. In such event, so long as Tenant is not responsible for
the delay in obtaining possession, rent shall be pro-rated to commence as of the
date of delivery of possession to Tenant. If the last day of the term of this
Lease, or any renewal thereof falls on a Saturday or Sunday this Lease shall
expire at noon on the preceding Friday.
2. USE OF PREMISES.
Tenant convenience and agrees to use the Demised Premises IN ACCORDANCE
WITH ANY USE THAT IS IN COMPLIANCE WITH ALL ZONING REGULATIONS UNDER THE CITY OF
MILFORD and for no other purpose. No retail sales shall be conducted from
Premises.
2.1 LANDLORD'S WARRANTY. Landlord warrants that it owns the property and
has the lawful right to lease the Leased Premises to Tenant; that they may be
used for
the purposes authorized by Paragraph 2 above, that Landlord will defend Tenant's
right to quiet enjoyment of the Leased Premises from the claim of all persons
during the lease term and any renewal thereof, and that Landlord's insurance
policies are so rated as to provide for the uses by Tenant authorized in
Paragraph 2 above.
3. RENT.
3.1 BASE RENT.
a. Tenant shall pay rent to the Landlord in such amounts as specified in
Paragraph 3.1(c) herein (the "Base Rent"). Tenant agrees to pay the Base Rent in
lawful money of the United States, in equal monthly installments in advance on
the first day of each month during the Term, at the office of Landlord, C/O SC
PROPERTIES, LLC, PO BOX 3010, MILFORD, CT 06460 or such other place as Landlord
may designate, without any set off or deduction whatsoever, except as may be
provided for herein except that Tenant shall pay the first monthly installment
of Base Rent and Additional Rent as set forth in Paragraph 3.2(a), on the
execution hereof (unless this lease be a renewal), which payment shall be
applied to the first month of the Term.
b. In the event that the Commencement Date shall be on a day other than the
first day of the month, then on the first day of the first full calendar month
of the Term, Tenant shall pay to Landlord a pro-rated amount of the monthly
installment of Base Rent adjusted for the proportionate fraction of the
preceding month, from the Commencement Date to the end of such preceding month.
The final monthly installment shall be adjusted for the proportionate fraction
of thee whole month which is part of the Term.
c. Annual Base Rates (in addition to all sums of additional rent due
thereunder) shall be:
1. For the first 1 year(s) of the Term, Forty-Three Thousand, Three
Hundred Eighty-Seven and Fifty Cents ($43,387.50) per annum payable in
monthly installments of Three Thousand, Six Hundred Fifteen DOLLARS and
Sixth-Three Cents ($3,615.63) per month,
2. For the next 1 year(s) of the term, Forty-Five Thousand, One Hundred
Twenty-Three DOLLARS ($45,123) per annum payable in monthly
installments of Three Thousand Seven Hundred Sixty DOLLARS and
Twenty-Five CENTS ($3,760.25),
3. For the next one year(s) of the Term, Forty Six Thousand, Eight Hundred
Fifty-Eight DOLLARS and Fifty CENTS ($46,858.50) per annum payable in
monthly installments of Three Thousand Nine Hundred and Four DOLLARS
($3,904) per month.
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3.2 ADDITIONAL RENT. In addition to the payment of Base Rent in accordance
with Paragraph 3.1 above, Tenant shall make the following payments to Landlord,
which payments shall collectively hereafter be referred to as "Additional Rent".
Notwithstanding anything to the contrary contained in this Lease, the Additional
Rent to be paid by Tenant for the first year of the Lease, from August 1, 1994
through July 31, 1995 (the "Base Year") shall not exceed the sum of $2.66 per
square foot per year ($18,465.72). During the second year (August 1, 1994-July
31,1995) and the third year (August 1, 1996-July 31, 1997) of this Lease, the
Additional Rent to be paid by the Tenant shall not exceed the sum of $2.66 per
square foot per year ($18,465.72), plus the increase in real estate taxes and
snow plowing costs over the Base Year. The increases shall be calculated by
subtracting the total amount of real estate taxes and snow plowing charges due
and payable during the Base Year from the total amount of real estate taxes and
snow plowing charges due and payable for the applicable year of the Lease. The
product of the resulting sum and the Tenant's Proportionate Share shall be the
amount due and payable by Tenant in the applicable Lease Year. As used herein,
Tenant's Pro Rata Share shall mean 15.1% which percentage is computed based upon
the number of Rentable Square Feet hereof divided by 46,000 square feet, which
figure represents the total rentable square footage of the Building.
a. TAXES.
(i) Beginning on September 1, 1995, Tenant shall pay to the Landlord,
Tenant's Pro Rata Share of all increases in real estate taxes, municipal charges
for sewer service and assessments, and each and every installment from the Base
Year which shall or may during the second and third years of this Lease and any
extension hereof be charged, levied, assessed, or become due and payable with
respect to the Building and the Property. With respect to those increases in
real estate taxes, municipal charges for sewer service and assessments from the
Base Year which may be charged, levied or assessed with respect to the Park,
said taxes and assessments shall be considered a Common Area Expense as defined
in paragraph 3.2(c)(i) and the Landlord shall allocate a portion of such expense
to the Property. Tenant shall pay to Landlord all increases in municipal real
estate taxes and assessments in twelve equal monthly installments in advance
along with the regular monthly Base Rent. The final monthly installment shall be
adjusted for Tenant's period of occupancy if necessary. Tenant shall not be
responsible for increases in real property taxes occurring after the base year
which results from Landlord's improvements for another tenant or improvements to
the Building if such improvements are solely decorative in nature unless same as
required by this Lease Agreement.
(ii) If, at any time during the Term, the methods of taxation prevailing at
the Commencement Date shall be altered so that in lieu of, as a supplement to,
or a substitute for the whole or any part of the real estate taxes or
assessments now levied, assessed, or imposed on the Property, the Building, the
Park or the Demised Premises, there shall be levied, assessed, or imposed (1) a
tax, assessment, levy, imposition, or charge, wholly or partially as a capital
levy or otherwise, on the rents received therefrom or (2) a tax, assessment,
levy (including but not limited to any municipal,
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state, or federal levy), imposition, or charge measured by or based in whole or
in part upon the Demised Premises and imposed upon the Landlord, or (3) a
license fee measured by the rent payable under this Lease, then all such taxes,
assessments, levies, impositions, and charges, or the part thereof so measured
or based, shall be deemed to be include in the general real estate taxes and
assessments payable by the Tenant pursuant to the terms of this Lease to the
extent that such taxes, levies, impositions, and charges would be payable if the
Demised Premises were the only property of the Landlord subject thereto, and the
Tenant shall pay and discharge the same as herein provided in respect to the
payment of general estate taxes and assessments. Tenant shall pay to Landlord
all of such substitute real estate tax with the monthly Base Rent in advance in
equal monthly installments throughout the term.
(iii) Tenant agrees to pay to Landlord, Tenant's Pro Rata Share of the
increases in the annual cost of real estate taxes evidenced by tax bills
received by Landlord during the second and third years of this Lease.
(iv) In the event Tenant effects any permanent improvements to the Demised
Premises in accordance with Paragraph 9 below, Tenant agrees, on request, to
furnish to the Landlord a list of the improvements made by Tenant to the Demised
Premises, together with the cost thereof, and Tenant agrees to pay to Landlord,
an amount equal to the taxes assessed on such permanent improvements computed on
the basis of the cost of such improvements (as adjusted by the equalization of
valuation used by such taxing authority) multiplied by the rate of taxation
against real property for each such lease year, or other reasonable method
designed by Landlord to fairly and reasonably reflect the actual taxes on such
improvements. An improvement shall be deemed "permanent" for purposes of this
paragraph unless such improvement shall be assessed against the Tenant by the
taxing authority as personal property.
(v) At Landlord's option, Landlord may at any time and from time to time,
commence an action or proceeding (1) to reduce the real estate taxes, (2) for a
refund of taxes and/or (3) for a reduction in taxes applicable to any tax year.
In the event that any such action is successful in reducing the real estate
taxes and if Landlord shall receive a refund for any tax year, Tenant shall be
entitled to that portion of any refund applicable to the Demised Premises
payment for which shall have been made by Tenant as Additional Rent (including
interest, if any, paid on such refund by the taxing authorities), but not in
excess of the amount of Additional Rent paid by Tenant for such tax year, after
deducting from such refund and interest that portion (or all, as the case may
be) of the cost and expenses (including experts' and attorneys' fees) of
obtaining such refund attributable to such refund or reduction benefiting the
Demised Premises; and Landlord shall be entitled to any remaining refund
(including interest, if any paid on such refund by the taxing authorities),
after deducting from such refund and interest that portion (or all, as the case
may be) of the costs and expenses (including experts' and attorneys' fees)
attributable to any such protest, action or proceeding referred to in this
Paragraph 3.2(a)(ii) which results in a reduction in taxes (other than where
Landlord receives a refund, from which such costs and expenses as Additional
Rent, unless such protest, action or proceeding pertains solely to a reduction
in taxes paid or
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to be paid by Landlord, in which event Landlord shall be responsible for such
costs and expenses.
(vi) Tenant shall bear the sole responsibility for any and all personal
property taxes which may be assessed, or become due and payable, together with
all interest and penalties thereon, with respect to personal property at the
Demised Premises.
b. INSURANCE.
(i) Property Insurance: The Landlord shall at all times during the term of
the Lease maintain at a minimum, standard fire and extended coverage insurance
on a replacement cost basis covering the Building housing the Demised Premises;
inclusive of rental insurance and any other insurance deemed necessary by
Landlord.
(ii) Public Liability Insurance: The Landlord shall obtain public liability
insurance in a minimum amount of $2,000,000 covering the Demised Premises, the
Building, the Property and the Park.
(iii) Subject to the provisions of Article 3.2, Tenant shall pay to
Landlord Tenant's Pro Rata Share of the cost of Insurance. Landlord shall
provide Tenant with notice of the cost of said insurance policies. Tenant's
Pro-Rata Share thereof shall be payable monthly, in advance, along with the
regular monthly Base Rent.
(iv) In the event the operations or activities of the Tenant shall in any
manner result in an increase in the fire and/or liability insurance costs to
Landlord, then Tenant alone shall be responsible for such increased costs.
(v) The parties shall obtain from their respective insurance carriers
waivers of subrogation against the other party, agents, employees and, as to the
Tenant, invitees. Neither party shall be liable to the other for any loss or
damage caused by fire or any of the risks enumerated in a standard fire
insurance policy with an extended coverage endorsement if such insurance was
obtainable at the time of such loss or damage.
c. COMMON AREAS.
(i) Subject to the provisions of Paragraph 3.2, Tenant shall pay to the
Landlord Tenant's Pro Rata Share of the cost of maintenance, repair and
replacement of the common elements appurtenant to the Demised Premises, the
Building, the Property, and the Park, including but not limited to the
following: common lighting and lighting fixtures; common area electrical
service, snow removal and sanding; trash removal (except trash removal from the
Demised Premises which shall be a direct expense of Tenant); landscaped areas,
road, parking areas and common driveways; sprinkler systems; all common
utilities; HVAC maintenance and repair; management, administrative and legal
costs; water for normal lavatory use; and other reasonable expenses paid in
connection with the operation, repair, and maintenance of the
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Building, the Property and the Park (the "Common Area Expenses"). With respect
to those Common Area Expenses attributable to the Park, Landlord shall, fairly
and reasonably allocate a portion of such expenses to the Building. Said
allocation shall be binding upon the parties.
(ii) Subject to the provisions of Paragraph 3.2, Tenant shall pay to
Landlord such additional rent as required to be paid pursuant to this
subparagraph (c), within thirty (30) days after Landlord's submission to Tenant
of a bill therefore which bill statement shall be fully itemized, and shall
include copies of supporting bill, Landlord shall have the right to bill Tenant
hereunder upon the basis of reasonable estimates prepared by Landlord. Tenant
agrees to pay to Landlord, together with the Base Rent, one-twelfth (1/12) of
Tenant's Pro Rata Share of such estimates and if such actual costs shall be more
than the amounts paid by Tenant to Landlord for such period, Tenant agrees to
pay such deficiency to Landlord within thirty (30) days after receipt by Tenant
of such statement, which bill statement shall be fully itemized and shall
include copies of supporting bills. If the amount paid by Tenant for such
preceding calendar year of the estimate annual costs shall be greater than such
annual costs for such period, Landlord agrees to reimburse Tenant within thirty
(30) days for such excess. If this Lease shall terminate prior to an anniversary
date of any year, then the annual costs payable by Tenant in the year of such
termination shall be adjusted on the basis of the number of months of such
calendar year in which this Lease shall be in effect.
(iii) Every bill furnished by Landlord pursuant to Paragraph 3.2(c)(ii)
hereof shall be conclusive and binding upon Tenant unless within thirty (30)
days after the receipt of such statement Tenant shall notify Landlord in writing
that it disputes the correctness of the statement is claimed to be incorrect. In
the event such dispute shall not have been settled by agreement within thirty
(30) days after receipt by Landlord of such notice from Tenant, the dispute
shall immediately be submitted to an independent certified public accountant
chosen by Landlord and Tenant, or failing agreement as to such accountant,
either party may request the Chairman of the Real Estate Section of the New
Haven County Bar Association to choose such accountant, whose decision shall be
made within twenty (20) days of such submission and whose decision shall be
final and binding on the parties. The cost of such accountant shall be shared
equally between the parties. Pending the determination of such dispute Tenant
shall, within ten (10) days after receipt of such bill, pay Additional Rent in
accordance with Landlord's bill, but such payment shall be without prejudice. If
the dispute shall be determined in Tenant's favor, Landlord shall, within five
(5) days after notice of such determination, pay Tenant the amount of Tenant's
overpayment of Common Area Expenses plus interest at Chase Manhattan Bank prime
rate of interest from the date of the overpayment. Landlord shall promptly
submit to Tenant copies of back-up documentation reasonably necessary to confirm
Common Area Expenses and reasonably and specifically requested by Tenant.
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d. ADDITIONAL PAYMENTS.
In addition to the above, and subject to the limitation contained in
this Article 3.2, Tenant shall pay to Landlord as Additional Rent those amounts
as set forth in Paragraphs 5.2, 8.3, 9(a), 13.2(d) and 19.5 of this Lease as
applicable.
3.3 LATE CHARGES. If Tenant shall fail to pay when within ten (10) days of
due any installment or payment of Base Rent or Additional Rent, Tenant shall be
required to pay a late charge of six percent (6%) of such late installment or
payment. Such late charge is not a penalty but is intended to compensate
Landlord for additional expenses incurred by Landlord in processing such late
installment or payment. Nothing herein shall be intended to violate any
applicable laws, codes or regulations, and in all instances all such changes
shall be automatically reduced to any maximum applicable legal rate of charge.
Such charge shall be imposed monthly for each late payment.
4. TENANT'S OBLIGATION TO MAINTAIN AND REPAIR.
Except as provided in Paragraph 6 below, Tenant shall be responsible for
(a) all of the maintenance, repair and replacement of the Demised Premises,
including without limitation the exterior doors and windows, Loading Docks and
all interior and exterior glass of the Demised Premises, (b) the repair or
replacement of any damages caused by Tenant, its agents and employees, to any
part of the Demised Premises, the Building or the Property. Tenant shall keep
the Demised Premises free of refuse and rubbish, and shall return the Demised
Premises to Landlord on the Expiration Date or such earlier termination of this
Lease as provided herein (the "Termination Date"), in as good condition as
received by Tenant, ordinary wear and tear and casualty excepted. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of this Lease. All of Tenant's maintenance and repair shall be
equal in quality to the original work and Tenant shall promptly pay the expense
of such maintenance, repair or replacement. Tenant shall shire a cleaning
service from a list of not less than three (3) services approved by Landlord to
clean the Demised Premises and no other cleaning services other than those
reasonably approved by Landlord shall be permitted.
No articles shall be hung out of the Building or exposed or placed in
the outside walls, doors of the Building or on trees, and no sign, awning,
canopy shutter or antenna shall be affixed to or placed upon the exterior walls
or doors, roof or any part thereof or exposed on or at any window.
5. LANDLORD'S OBLIGATION TO MAINTAIN AND REPAIR.
5.1 Landlord shall be responsible for all structural repairs and necessary
repairs and replacements to the roof, foundation, the outside structure and the
HVAC and all plumbing and mechanical systems of the Demised Premises at
Landlord's expense. Landlord shall keep the Building and the common areas in
good repair and condition.
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5.2 Landlord shall repair and maintain any roads, parking areas and other
common areas appurtenant to the Demised Premises, the Building, the Property and
Park, and the cost thereof shall be a part of the Common Area Expenses and paid
as set forth in Paragraph 3.2(c) hereof. However, if any such maintenance,
repair or replacement is necessitated by the negligence or misconduct of Tenant,
or Tenant's agent, Landlord shall effect said maintenance, repair or replacement
at Tenant's cost and expense. In the event Tenant fails to pay therefor, such
cost and expense shall be payable to Landlord as Additional Rent.
5.3 Landlord, at its sole cost and expense, shall furnish and install
signage for Tenant identification at the entrance to the Demised Premises and
the rear of the Building. Said signage shall be of a size, color, style and type
and at such location. Thereafter, said signage shall be maintained and repaired
by Landlord as necessary during the Term and the expense for said maintenance
and repair shall be a Common Area Expense. No other sign, advertisement, notice
or other lettering shall be exhibited, inscribed, painted or affixed by Tenant
on any part of the exterior of the Demised Premises or the Building, or on the
inside of the Demised Premises if the same is visible from the outside of the
Demised Premises. In the event of the violation of the foregoing by Tenant,
Landlord shall remove same without any liability to Tenant, and shall charge the
cost incurred by such removal to Tenant.
5.4 Except for the negligence or wrongful acts of the Landlord, its
employees, agents or contractors, the Landlord shall not be under any
responsibility or liability in any way for the quality, quantity, impairment,
stoppage, interruption, or other interference with the service involving water,
heat, gas, electric current for light and power, telephone, or any other
services or utilities.
5.5 Notwithstanding anything herein to the contrary, Landlord will not be
responsible for the failure of the HVAC system servicing the Building or the
Demised Premises to adequately service the Demised Premise if such failure
results from the occupancy of the Demised Premises with more than an average of
one person for each two hundred (200) square feet of the Leased Floor Space or
if Tenant installs and operates machines and appliances, the installed
electrical load of which when combined with the load of all lighting fixtures
exceeds five (5) watts per square foot of the Lease Floor Space in any one room
or other area.
6. UTILITIES.
6.1 Electrical energy and/or natural gas consumed by Tenant in the Demised
Premises shall be separately metered and purchased by Tenant from the utility
supplying electricity and/or natural gas to the Building. The electrical and/or
natural gas meters shall be supplied by Landlord at Landlord's expense.
6.2 Tenant convenience and agrees that at all time its use of electrical
current shall not exceed the capacity of existing feeders to the Demised
Premises or Building or the risers, conduits, or wiring installation in the
Demised Premises, and Tenant shall
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not use any electrical equipment which, in Landlord's opinion reasonably
exercised, will overload such installations or interfere with the use thereof by
other tenants of the Building.
6.3 The change at any time of the character of electric service shall in no
way make Landlord liable or responsible to Tenant, for any loss, damages or
expenses which Tenant may sustain, except for the gross negligence or willful
misconduct of the Landlord, in employees, agents or contractors.
6.4 Water shall be supplied to the Demised Premises by Landlord and shall
be a Common Area Expense. However, in the event Tenant uses water for other than
ordinary lavatory purposes, Landlord reserves the right to meter the water
and/or Tenant shall purchase same from the utility supplying water to the
Building.
7. RUBBISH STORAGE AND REMOVAL.
7.1 RUBBISH STORAGE. No storage of trash shall be permitted in or outside
the Demised Premises or the Building in such a manner as to permit the spread of
fire or encouragement of vermin. No garbage cans or trash barrels shall be
placed outside the Demised Premises. No accumulation of rubbish, debris or
unsightly materials shall be permitted in the Park except in designated trash
storage containers.
7.2 RUBBISH REMOVAL. Rubbish container locations shall be designated by the
Landlord. Pickup will be from those locations only and shall be arranged for by
Landlord and the cost thereof shall be a Common Area Expense. Tenant shall be
responsible for removal of rubbish from the Demised Premises to the pickup
locations. Rubbish is to be deposited within that location and the area is to be
kept neat, clean and free of debris. Long term storage of rubbish in the Demised
Premises is forbidden.
8. PARKING.
8.1 Tenant shall, at no additional rent, be entitled to parking for 24
passenger vehicles in the uncovered parking lot adjacent to the Building;
provided, however, that twenty (20) of said parking spaces are unassigned and
Tenant's rights to said parking spaces are in common with other tenants of the
Building, and four (4) spaces are assigned to Tenant and marked for Tenant's
visitors. Said parking spaces shall be used in accordance with the Rules and
Regulations, as defined below. Tenant shall require its employees and invitees
to park their vehicles only in common parking spaces in said lot designated by
Landlord. Parking shall be on a "first come, first served" basis. Landlord
reserves the right at all times to designate common or assigned parking spaces.
Tenant, its employees and invitees, shall not at any time park any trucks or
delivery vehicles in any of the parking areas not so designated.
8.2 Except for the negligence or wrongful acts of the Landlord, its
employees, agents or contractors, all parking spaces and any other parking
areas, roadways, and driveways used by Tenant, its personnel and visitors will
be at their own risk, and
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Landlord shall not be liable for any injury to person or property, or for loss
or damage to any vehicle or its contents or any injury to any person resulting
from theft, collision, vandalism or any other cause whatsoever. Landlord shall
have no obligation whatsoever to provide a guard or any other personnel or
device to patrol, monitor, guard or secure any parking area; if Landlord does so
provide it shall be solely for Landlord's convenience, and Landlord shall in no
way whatsoever be liable for any acts or omissions of such personnel or device
in failing to prevent any such theft, vandalism or loss or damage by other
cause, except for the negligence or wrongful acts of the Landlord, its
employees, agents or contractors.
8.3 There shall be no overnight parking except in that portion, if any, of
the parking area designated by Landlord for overnight parking ("Overnight
Parking Area"), and Tenant shall, and shall cause its employees and invitees to,
remove their vehicles from the parking area except the Overnight Parking Area at
the end of the working day. If any automobile owned by Tenant or by its
employees or invitees remains in the Parking Area overnight, except in the
Overnight Parking Area, and the same interferes with the cleaning or maintenance
of said area (snow or otherwise), any cost or liabilities incurred by Landlord
in removing said vehicle to effectuate cleaning or maintenance, or any damages
resulting to said vehicle or to Landlord's equipment or equipment owned by
others by reason of the presence or of removal of said vehicle during such
cleaning or maintenance shall be paid by Tenant to Landlord, as Additional Rent
on the rent payment date next following the submission of a bill therefor.
8.4 Vehicles may not be parked in such manner as to consume more than one
space, block access to parking spaces, fire hydrants, sidewalks running
perpendicular to drives, pedestrian crossing areas, designated fire lanes, or
clear two lane passage by vehicles on roads and drives. Vehicles in violation
will be towed after reasonable efforts to contact the person to whom the vehicle
is registered. In addition, a $25.00 per day fine may be levied against the
person to whom the vehicle is registered.
9. TENANT ALTERATIONS.
Tenant may not make any alterations, installations, changes, additions or
improvements to the Demised Premises (collectively the "Improvements") without
Landlord's prior written consent, which consent shall not be unreasonably
withheld. Any Improvements as Landlord consents to shall be subject to and
conditional upon the following:
a. Tenant shall provide to Landlord such plans of and specifications
prepared by a licensed architect or engineer for the Improvements which plans
and specifications shall be approved also, at Tenant's sole cost and expense, by
all applicable governmental authorities which have jurisdiction over the
Improvements and/or the Demised Premises. With respect to any such Improvement
which is not performed by Landlord, Tenant shall pay to Landlord as Additional
Rent upon demand ten percent (10%) of the cost of such improvement for
Landlord's supervision, indirect costs and the coordination of the work
performed.
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b. All Improvements shall be con-structural and shall not affect utility
service, plumbing or electrical lines in or to the interior of the Demised
Premises or to any part of the Building or Property.
c. Tenant shall only utilize duly licensed contractors and other related
personnel to perform the Improvements and shall cause such contractors and
subcontractors to carry worker's compensation, general liability and personal
and property damage insurance.
d. The Improvements shall be performed in a first class, workmanlike manner
and shall not weaken nor impair the structural strength nor lessen the value of
the Demised Premises or of the Building.
e. Tenant shall, at its own cost and expense, obtain all permits,
approvals, licenses and certificates required by any governmental or
quasi-governmental agencies, with respect to the Improvements, including without
limitation final certificates of occupancy and shall deliver promptly duplicates
of all such approvals to Landlord.
f. At the Expiration Date, or at the end of the Term, the Improvements and
partitions, except movable trade fixtures, shall become the property of the
Landlord. Tenant shall repair, at its own expense, all damage resulting from the
removal of its movable furniture which are not affixed to the Demised Premises.
g. Landlord, at its option, may require Tenant to remove any Improvement.
In such event, Tenant shall remain liable to restore and repair the Demised
Premises to its former condition prior to the installation of the Improvements.
In the event Tenant fails to restore and repair the Demised Premises to its
former condition prior to the installation of the Improvements, Landlord shall
have the right to perform such restorative and repair work at Tenant's cost.
h. Tenant shall furnish Landlord with waivers of Mechanics' Liens and other
reasonable security to insure Landlord or its mortgagee that all work performed
and material supplied have been paid and all construction will comply with
provisions of this Lease.
10. TENANT'S ACCEPTANCE OF DEMISED PREMISES.
On the Commencement Date, which Date shall not be before issuance of a
Certificate of Occupancy or Temporary Certificate of Occupancy is available for
the Demised Premises, Landlord and Tenant shall execute an agreement
acknowledging the Commencement Date, and execution thereof shall be conclusive
evidence that Tenant has inspected the Demised Premises and the Building and
accepts them as is, except for the latent defects which are not determinable at
the time of the inspection and which may appear during the period beginning on
the Commencement Date and ending nine (9) months thereafter. It is agreed that
on the Commencement Date the Demised Premises shall be substantially complete so
as to allow reasonable conduct of Tenant's
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business. In any event, Landlord makes no representation as to the condition of
the Demised Premises and Tenant agrees to accept the same subject to violations,
whether or not of record. Tenant agrees that the taking of possession is
conclusive evidence that the Demised Premises and the Building area in good and
satisfactory condition. Tenant agrees that Landlord has made no representation
or promises with respect to the Demised Premises, the Building or the Property
except as specifically set forth herein. This Lease may only be modified or
amended in writing signed by the parties hereof.
11. TENANT'S COVENANTS.
11.1 COMPLIANCE WITH LAWS. Tenant, at Tenant's sole cost and expense, shall
promptly comply with all present and future laws, orders, rules and regulations
of all state, federal, municipal and local governments, departments, commissions
and boards and any direction of any public officer pursuant to law, and all
orders, rules and regulations of any body which shall impose any violation,
order or duty upon Tenant with respect to the Demised Premises arising out of
Tenant's use or manner of use thereof. Tenant shall provide Landlord immediately
with any and all notices, violations, orders or the like which it receives with
respect to the Demised Premises or the Building. Tenant may, after securing
Landlord's written consent and providing Landlord with adequate security, to
Landlord's satisfaction to protect Landlord against all damages, interest,
penalties and expenses, including, but not limited to reasonable attorneys'
fees, contest and appeal any such laws, ordinances, orders, rules, regulations
or requirements provided same is done with all reasonable promptness and
provided such appeal shall not subject Landlord to prosecution for a criminal
offense or constitute a default under any lease or mortgage under which Landlord
may be obligated, or cause the Demised Premises or any part thereof to be
condemned or vacated. Notwithstanding anything herein to the contrary, and
without by way of limitation, Tenant shall comply with all environmental laws,
rules and regulations, and, to the extent of any violation thereof by Tenant,
Landlord shall have, at its sole option, the right to immediately terminate this
Lease by ten (10) days' written notice to Tenant, notwithstanding any provision
set forth at Paragraph 20. Tenant shall indemnify Landlord and hold it harmless
from any and all liabilities, obligations, or claim arising out of Tenant's
failure to comply with this provision.
11.2 FIRE INSURANCE RATES. Tenant shall not keep any hazardous, or
flammable material in nor about the Demised Premises except as now or hereafter
specifically permitted by the Fire Department or authority having jurisdiction,
and then only in such quantity so as not to increase the rate for fire or
liability insurance applicable to the Demised Property or the Building, nor use
the Demised Premises in a manner which will increase the insurance rate for the
Building or any portion thereof over that in effect prior to the Commencement
Date. Tenant shall pay all costs, expenses, fines, penalties, or damages, which
may be imposed upon Landlord by reason of Tenant's failure to comply with the
provisions of this paragraph.
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11.3 FLOOR LOADS. Tenant shall not place a live load upon any floor of the
Demised Premises exceeding one hundred fifty (15) pounds per square foot area.
Landlord reserves the right to prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be placed
and maintained by Tenant, at Tenant's expense, in settings sufficient, in
Landlord's judgment, to absorb and prevent vibration, noise and annoyance.
11.4 OBLIGATIONS RE USE OF DEMISED PREMISES. Tenant shall not suffer or
permit the Demised Premises or any part thereof to be used in any manner, or
anything to be done therein, or suffer or permit anything to be brought into or
kept therein, which would in any way (i) violate any of the provisions of any
grant, lease or mortgage to which this Lease is subordinate, (ii) cause or in
Landlord's reasonable opinion, be likely to cause physical damage to the Demised
Premises or the Building or any part thereof, (iii) constitute a public or
private nuisance, (iv) impair in the reasonable opinion of the Landlord the
appearance, character or reputation of the Building, (v) result in members of
the general public loitering in, on or about the Building or the Property, (vi)
discharge objectionable fumes, vapors, or odors into the Building HVAC system or
into Building flues or vents not designated to receive them or otherwise in such
manner as may unreasonably offend other occupants, (vii) impair or interfere
with any of the Building services or the proper and economic heating, cleaning,
air conditioning or other servicing of the Building or the Demised Premises or
impair or interfere with the use of any of the other areas of the Building or
the Property by, or occasion discomfort, annoyance or inconvenience to, Landlord
or any of the other tenants or occupants of the Building, or (viii) cause Tenant
to default in any of its other obligations under this Lease.
12. SUBORDINATION.
This Lease is subject and subordinate to all ground or underlying leases
and to all mortgages which may now or hereafter affect such leases or the
Property and to all renewals, modifications, consolidations, replacements and
extensions of any such underlying leases and mortgages. This clause shall be
self-operative and no further instrument of subordination shall be required by
any ground or underlying lessor or by any mortgagee, affecting any lease or
Property. In confirmation of such subordination, Tenant shall execute promptly
any document that Landlord may request. Landlord shall obtain a Non-Disturbance
agreement for Tenant from Landlord's current lender, The Chase Manhattan Bank,
NA; Landlord shall make all reasonable and diligent effort to obtain a
Non-Disturbance Agreement for Tenant from all future lenders.
13. PROPERTY LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY.
13.1 LIMITATION OF LANDLORD'S LIABILITY. Landlord or its agents shall not
be liable for any damage to property of Tenant nor for loss of or damage to any
property of Tenant by theft or otherwise, nor for any injury or damage to
persons or property resulting from any abuse of whatsoever nature, unless caused
by or due to the negligence of Landlord, its agents, servants or employees and
not otherwise covered by
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insurance as required herein. The Landlord shall further not be responsible for
the loss of or damage to property (including property of the Tenant) or injury
to persons occurring in or about or appurtenant to the Demised Premises (or any
of the Property including all common areas and all parking areas), by reason of
any existing condition, defect, matter or thing in said Demised Premises or the
Property nor for the acts, omissions or negligence of any other persons or
tenants which may occur in or about the said Property.
13.2 TENANT'S INSURANCE.
a. Tenant shall at Tenant's sole cost and expense at all times during the
term of the Lease maintain standard fire and extended coverage insurance on a
replacement cost basis covering Tenant's personal property inclusive of any
Tenant's improvements and betterments to the Demised Premises. Notwithstanding
the foregoing, Tenant may self-insure such risk provided that there shall be no
material adverse change in Tenant's financial condition after the date hereof
and further provided that Tenant shall not be in default with respect to the
terms and conditions of this Lease.
b. The Tenant shall, at Tenant's sole cost and expense, obtain public
liability insurance to protect both the Landlord and the Tenant against any
liability for damages or injuries to persons or property incident to the use or
resulting from any accident in or about the Demised Premises and the Building in
a minimum amount of $2,000,000 on a form of coverage acceptable to Landlord.
c. Tenant shall provide a Certificate of Insurance evidencing the above
required fire insurance, liability insurance and in addition, Worker's
Compensation insurance, to Landlord on a timely basis. The Tenant shall obtain a
written obligation on the part of the insurance carriers to notify the Landlord
in writing at least ten (10) days prior to the cancellation of any said
insurance policies.
d. In the event Tenant shall fail to procure and place any such insurance,
the Landlord may, but shall not be obligated to, procure and place same, in
which event the amount of the premium paid shall be refunded by Tenant to
Landlord, upon demand and shall in each instance be collectible on the first day
of the month or any subsequent month following the date of payment by Landlord,
in the same manner as though said sums were Additional Rent reserved hereunder.
Tenant's failure to provide and keep in force the aforementioned insurance shall
be regarded as a material default hereunder entitling Landlord to exercise any
or all of the remedies as provided in this Lease in the event of Tenant's
default.
14. DESTRUCTION, FIRE AND OTHER CASUALTY.
14.1 NOTICE. If the demised Premises or any part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice thereof to
Landlord and this Lease shall continue in full force and effect at Landlord's
option as hereinafter set
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forth. Landlord shall determine in its sole discretion whether the Demised
Premises are partially or totally damaged or rendered unusable and whether
Landlord elects to repair or restore same.
14.2 PARTIAL DAMAGE. If the Demised Premises are partially damaged or
rendered partially unusable by fire or other casualty, the damages thereto shall
be repaired by and at the expense of Landlord and the rent, until such repair
shall be substantially completed, shall be apportioned from the date following
the casualty according to the part of the Demised Premises which is usable.
The damage to all of Tenant's fixtures, equipment, improvements and other
personal property installed by Tenant shall be promptly repaired by and at
Tenant's expense. The Rent, until such repairs required to be made by Landlord
shall be completed, shall be apportioned according to according to the part of
the Demised Premises which is used by Tenant.
14.3 TOTAL DAMAGE. If the Demised Premises are totally damaged or rendered
wholly unusable by fire or other casualty, and the Landlord elects to restore
same, then the rent shall be proportionately paid up to the time of the casualty
and thenceforth shall cease until the date when the Demised Premises shall have
been repaired and restored by Landlord, subject to Landlord's right to elect not
to restore the same as hereinafter provided. If the Demised Premises are totally
damaged or wholly unusable and the Landlord elects not to restore same, then,
Landlord may elect to terminate this Lease by written notice to Tenant, given
within ninety (90) days after such fire or casualty, specifying a date for the
expiration of the Lease, which date shall not be more than sixty (60) days after
giving of such notice, and upon the date specified in such notice the term of
this Lease shall expire as fully and completely as if such date were the date
set forth above for the termination of this Lease and Tenant shall forthwith
quit, surrender and vacate the Demised Premises. Nothing herein however shall
prejudice Landlord's rights and remedies against Tenant under the lease
provisions in effect prior to such termination, and any rent or other monies
owing by Tenant shall be paid up to such date and any payments of rent made by
Tenant which were on account of any period subsequent to such date shall be
returned to Tenant. Unless Landlord shall serve a termination notice as provided
for herein, Landlord shall make repairs and restorations under the conditions of
13.1 and 13.2 hereof, with all reasonable expedition, subject to delays due to
adjustment of insurance claims, labor troubles and causes beyond Landlord's
control. After any such casualty, Tenant shall cooperate with Landlord's
restoration by removing from the Demised Premises as promptly as reasonably
possible, all of Tenant's salvageable inventory and movable equipment,
furniture, and other property. Tenant's liability for rent shall resume five (5)
days after the Premises are substantially ready for Tenant's occupancy.
15. EMINENT DOMAIN.
If the whole or any part of the Demised Premises shall be acquired or
condemned by Eminent Domain for any public or quasi-public use or purpose, then
and in that
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event, the term of this Lease shall cease and terminate from the date of title
vesting in such proceeding and Tenant shall have no claim for the value of any
unexpired term of said lease and hereby assigns to Landlord Tenant's entire
interest in any such award; provided, however, that nothing contained herein
shall be construed to preclude Tenant from prosecuting any claim directly
against the condemning authority in such condemnation proceedings for loss of
business or depreciation to, damage to, or cost of removal of, or for the value
of stock, trade fixtures, furniture, or other personal property, belonging to
Tenant; provided, however, that no such claim shall adversely affect the
Landlord's award.
16. ASSIGNMENT, MORTGAGE, ETC.
16.1 Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this Lease, nor sublet,
or suffer or permit the Demised Premises or any part thereof to be used by
others without the consent of Landlord, which consent shall not be unreasonably
withheld or delayed.
Notwithstanding anything to the contrary contained in this Lease, Landlord
agrees that Tenant may assign this Lease or sublet or share all or any portion
of the Demised Premises to an "affiliated corporation" (as hereinafter defined),
or a corporation or other entity into or with which Tenant is merged or
consolidated or to which Tenant is sold, or with an entity to which
substantially all of Tenant's assets are transferred, provided such merger,
consolidation or transfer of assets is for a good business purpose and not
principally for the purposes of transferring the leasehold estate created
hereby. Such transfers shall be permitted under this Lease without the consent
of the Landlord as required under this Article 16.1.
For purposes of this Article 16.1 an affiliated corporation means (i) a
corporation controlled by, controlling or under common control with Tenant or
(ii) a partnership or joint venture in which Tenant or an affiliated corporation
is a general partner.
16.2 Tenant shall give written notice to Landlord immediately upon its
intent to assign or sublet, thereafter Tenant shall give written notice to
Landlord at least one hundred twenty (120) days prior to affecting any proposed
assignment or sublet (the "Notice"). Said Notice shall contain the name and
address of the proposed assignee or subtenant, the terms and conditions of the
proposed assignment or sublease, and the nature of the business to be conducted
on the Demised Premises.
The provisions of this Paragraph 16.2 shall apply to each such proposed
subletting, none of which shall be effective until all of the foregoing shall
have been complied with. Notwithstanding any subletting, Tenant and any future
sublessor shall remain liable for the full performance of all the terms and
conditions of this Lease on the part of the Tenant to be performed.
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Landlord's failure to give Tenant consent to the proposed sublet within
fifteen (15) days of the receipt of the Sublet Notice shall be deemed to be
refusal to give said consent. The consent by Landlord of a subletting shall not
in any way be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further subletting.
17. ACCESS TO PREMISES.
17.1 Landlord or Landlord's agents shall have the right (but shall not be
obligated) to enter the Demised Premises in any emergency at any time, and, at
other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Landlord may deem necessary and reasonably
desirable to the Demised Premises, the Building or the Property or which
Landlord may elect to perform as may be necessary for the safety and
preservation thereof, or for any other reasonable purpose. Landlord or
Landlord's agents shall have the right to enter the Demised Premises during
normal business hours to show the Demised Premises to prospective tenants during
the six (6) months preceding the Expiration Date.
17.2 Landlord reserves all necessary rights to enter onto and over the
Demised Premises to repair or maintain any installations sewer, water, electric
and other utility services, or for any other purpose in any way related to or
arising out of the construction by Landlord of any improvements or buildings on
the Property. Landlord shall exercise this right in such a way so as to minimize
interference with Tenant's use of the Demised Premises; however, Tenant shall
not be entitled to any adjustment in rent if Landlord's reasonable exercise of
this interferes with Tenant's use of the Demised Premises.
17.3 The Landlord, the manager or its designated agent, shall retain a pass
key and/or access code for electronic entry devices to the Demised Premises and
the Building for use in emergency situations only. Tenant shall not alter any
lock or install a new lock on any door of the Demised Premises or the Building
without immediately providing the Landlord, the manager or its agent, with a key
and/or access code therefor. Tenant shall, upon the termination of its tenancy,
restore to Landlord all keys, either furnished to, or otherwise procured by
Tenant, and in the event of the loss of any keys so furnished, Tenant shall pay
to Landlord the cost therefor. The Demised Premises may have closets, safes or
vaults not exceeding 50 cubic feet in capacity which can be locked without
access.
18. BANKRUPTCY.
18.1 If at any time during the Term the Tenant shall make any assignment
for the benefit of creditors, file bankruptcy proceedings or have a bankruptcy
proceeding files against it (which Tenant does not have dismissed within
forty-five [45] days from the date of filing), or if a receiver shall be
appointed for the Tenant, then the Landlord may, at its option, terminate this
Lease, the exercise of such option to be evidenced by notice to that effect
served upon the assignee, receiver, trustee or other person in
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charge of the liquidation of the property of the Tenant or the Tenant's estate,
but such termination shall not release or discharge any payment of Base Rent and
Additional Rent or other amounts payable hereunder and then accrued, or any
liability then accrued by Tenant or the Tenant's legal representatives, pursuant
to this Lease.
18.2 In the event of the termination of this Lease pursuant to 18.1 above,
Landlord shall forthwith, notwithstanding any other provisions of this Lease to
the contrary, be entitled to recover from Tenant as liquidated damages an amount
equal to the difference between the rent reserved hereunder for the unexpired
portion of the Term and the fair and reasonable rental value of the Demised
Premises for the same period. In the computation of such damages the difference
between any installment of Base Rent and Additional Rent becoming due hereunder
after the date of termination and the fair and reasonable rental value of the
Demised Premises for the period for which such installment was payable shall be
discounted to the date of termination at the rate of four percent (4%) per
annum. If the Demised Premises or any part thereof be relet by the Landlord for
the unexpired term of the Lease, or any part thereof, before presentation of
proof of such liquidated damages to any court or adjudicator, the amount of rent
reserved upon such relating shall be deemed to be fair and reasonable rental
value for the part or the whole of the Demised Premises so re-let during the
term of the re-letting. Nothing herein contained shall limit or prejudice the
right of the 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 proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
19. DEFAULT; REMEDIES.
19.1 If Tenant (a) defaults in making any payment of Base Rent due
hereunder within seven (7) calendar days of its due date, or defaults in making
any payment of Additional Rent due hereunder within fifteen (15) days of its due
date, and if either such default continues for five (5) days after notice of
said default from Landlord; or (b) defaults in the performance of any
non-monetary obligation or covenant contained herein and said default continues
for thirty (30) days after notice of said default from Landlord; provided,
however, if said default is not subject to cure within said thirty day period,
no Event of Default pursuant hereto shall be claimed so long as Tenant is
diligently pursuing said cure, but in no event shall said default continue for
more than sixty (60) days following said notice; or (c) if the Demised Premises
become deserted; or (d) if any execution or attachment shall be issued against
Tenant or any of Tenant's property and the Demised Premises shall be taken or
occupied by someone other than Tenant; or (e) if this Lease be rejected under $
235 of Title 11 of the US Code (Bankruptcy Code); or (f) if Tenant shall fail to
move into or take possession of the Demised Premises within fifteen (15) days
after the Commencement Date (any of the above being an "Event of Default") then,
in any one or more of such Events of Default, Landlord may serve a written three
(3) days' notice of cancellation of this Lease upon Tenant, and upon the
expiration of said three (3) days this Lease and the Term shall
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end and expire as fully and completely as if the expiration of such three (3)
day period were the day herein definitely fixed for the end and expiration of
this Lease and Tenant shall then quit and surrender the Demised Premises to the
Landlord but Tenant shall remain liable as hereinafter provided.
19.2 Upon the occurrence of any Event of Default Landlord may without
notice, reenter the Demised Premises either by force or otherwise and dispossess
Tenant by summary proceedings or otherwise, and the legal representative of
Tenant or other occupant of the Demised Premises and remove its effects and hold
the Demised Premises as if this Lease had not been made.
19.3 In case of any Event of Default, (a) Tenant shall be obligated to pay
all rent and monies in accordance with the terms and conditions of this Lease;
(b) Landlord may re-let the Demised Premises or any part or parts thereof,
either in the name of Landlord or otherwise, for a term or terms, which may at
Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this Lease and may grant concessions or
free rent or charge a higher rental than in this Lease; and/or (c) Tenant or the
legal representatives of Tenant shall also pay Landlord as liquidated damages
for the failure of Tenant to observe and perform said Tenant's convenience
herein contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the Demised Premises for each month of the
period which would otherwise have constituted the balance of the term of this
Lease. The failure of Landlord to re-let the Demised Premises or any part or
parts thereof shall not release or affect Tenant's liability for damages. In
computing such liquidated damages there shall be added to the said deficiency
such expenses as Landlord may reasonably incur in connection with re-letting,
such as legal expenses, attorneys' fees, brokerage, advertising and for keeping
the Demised Premises in good order or for preparing the same for re-letting. In
no event shall Tenant be entitled to receive any excess, if any, of such net
rents collected in the event of a sublet over the sums payable by Tenant to
Landlord hereunder. Tenant hereby waives any notice to quit which may be
required by statute or otherwise prior to the commencement of an action to
obtain possession of the Demised Premises by summary proceeding or otherwise.
19.4 In the event of an Event of Default or threatened Event of Default by
Tenant, Landlord shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if reentry, summary proceedings and other
remedies were not herein provided. Reference in this Lease of any particular
remedy, shall not preclude Landlord from any other remedy, in law or in equity.
19.5 If Tenant shall default in the observance or performance of any term
or covenant contained herein Landlord may at its sole discretion after
reasonable notice to Tenant perform the obligation of Tenant thereunder. No
notice shall be required for emergency repairs or actions undertaken by
Landlord. In the event that Landlord makes any expenditures or incurs any
obligations for the payment of money hereunder
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including but not limited to attorney's fees in instituting, prosecuting or
defending any action or proceeding then Tenant will reimburse Landlord for such
sums so paid or obligations incurred with interest and costs. If Tenant requests
Landlord to review or execute documents (including without limitation, any
sublease or occupying documents) in connection then Tenant shall reimburse
Landlord, as Additional Rent, for the expense of attorneys' fees and
disbursements thereby incurred by Landlord, so far as the same are reasonable.
The foregoing expenses incurred by reason of Tenant's default or otherwise shall
be deemed to be Additional Rent hereunder and shall be paid by Tenant to
Landlord within five (5) days of rendition of any bill or statement to Tenant
therefor. If Tenant's lease term shall have expired at the time of making of
such expenditures or incurring of such obligations, such sums shall be
recoverable by Landlord as damages.
20. LANDLORD'S CONTROL RE BUILDING.
Landlord shall have the right at any time, without the same constituting an
eviction and without incurring liability to Tenant therefor, to change the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, stairs, or other public parts of the Building and to change the name,
number or designation by which the Building may be known. There shall be no
allowance to Tenant for diminution of rental value and no liability on the part
of Landlord by reason of inconvenience, annoyance or injury to business arising
from Landlord or other tenants making any repairs in the Building or any such
alterations, additions and improvements. Furthermore, Tenant shall not have any
claim against Landlord by reason of Landlord's imposition of such controls of
the manner of access to the Building by Tenant's invitees as the Landlord may
deem necessary for the security of the Building and its occupants.
21. QUIET ENJOYMENT.
Landlord convenience and agrees with Tenant that upon Tenant paying the
Base Rent and Additional Rent and observing and performing all other terms,
convenience and conditions, on Tenant's part to be observed and performed,
Tenant may peaceably and quietly enjoy the Demised Premises subject,
nevertheless, to the terms and conditions of this Lease. Landlord will hold
Tenant harmless from any claim disputing Landlord's right or authority to enter
into this Lease including without limitation, any claims as to Landlord's
ownership of the Property.
22. NO WAIVER.
The failure of Landlord to seek redress for violation of, or to insist upon
the strict performance of any covenant or condition of this Lease or of any of
the Rules or Regulations, set forth or hereafter adopted by Landlord, shall not
prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. Landlord's
receipt of rent with knowledge of the breach of any covenant of this Lease shall
not be deemed a waiver of Landlord's rights
-20-
pursuant to the other terms of this lease unless such waiver be in writing and
signed by Landlord. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly rent herein stipulated shall be deemed to be other than
on account of the earliest stipulated rent, nor shall any endorsement or
statement of any check or any letter accompanying any check or payment as rent
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
rent or pursue any other remedy in this Lease provided. No act or thing done by
Landlord or Landlord's agents during the Term shall be deemed an acceptance of a
surrender of the Demised Premises, and no agreement to accept such surrender
shall be valid unless in writing signed by Landlord. No employee of Landlord or
Landlord's agent shall have any power to accept the keys of the Demised Premises
prior to the termination of the Lease and the delivery of keys to any such agent
or employee shall not operate as a termination of the Lease or a surrender of
the Demised Premises.
23. INABILITY TO PERFORM.
This Lease and the obligation of Tenant to pay rent and perform all of the
other convenience and agreements hereunder shall in no way be affected, impaired
or excused because Landlord is unable to fulfill any of its obligations under
this Lease or is unable to supply or is delayed in supplying any service or is
unable to make, or is delayed in making any repairs, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment of
fixtures if Landlord is prevent or delayed from so doing by reason of strike or
labor troubles or any other cause including, but not limited to, government
preemption in order or regulation of any department or subdivision thereof any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
24. BROKER.
Tenant represents that the only broker with whom it dealt or who was
instrumental in connection with this Lease is CB COMMERCIAL REAL ESTATE GROUP,
INC., and based thereupon Landlord agrees to pay a brokerage commission in
accordance with a separate agreement between Landlord and said broker. Tenant
agrees to and hereby does indemnify and hold Landlord harmless from and against
all cost, expenses (including attorneys' fees and disbursements), losses and
liabilities incurred by Landlord in connection with any such claim with respect
to any broker other than as specifically provided herein.
25. ESTOPPEL CERTIFICATE.
Tenant shall at its own cost and expense, upon not less than ten (10) days
prior notice from Landlord, execute, acknowledge and deliver to Landlord a
statement in writing addressed to Landlord or such other party as Landlord may
designate, setting forth the Commencement Date, the Expiration Date, the Base
Rent, current payments of Additional Rent and certifying (a) that this Lease is
unmodified and in full force and
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effect (or if there has been any modification, that the same is in full force
and effect as modified and stating the modification), (b) the dates to which the
Base Rent and Additional Rent have been paid in advance, if any, (c) whether or
not to Tenant's knowledge Landlord is in default in performance of any of its
obligations under this Lease and, if so, specifying each such default of this
Tenant may have knowledge, (d) whether Tenant has accepted possession of the
Demised Premises, (e) whether Tenant has made any claim against the Landlord
under this Lease and, if so, the nature thereof and the dollar amount, if any,
of such claim, (f) whether there exists any offsets or defenses against
enforcement of any of the terms of this Lease upon the part of Tenant to be
performed, and, if so, specifying the same and (g) such further information with
respect to this Lease or the Demised Premises as Landlord may reasonably
request, it being intended that any such statement delivered pursuant hereto
shall be binding upon Tenant, and may be relied upon by any prospective
purchaser from Landlord, by any mortgagee or prospective mortgagees thereof, by
and lessor or prospective lessor thereof, or by any prospective assignee of any
mortgage thereof.
26. HOLDOVER.
26.1 Tenant hereby indemnifies and agrees to hold Landlord harmless from
and against any loss, cost, liability, claim, damage, fine, penalty, and
expense, including attorneys' fees and disbursements, resulting from delay by
Tenant in surrendering the Demised Premises upon the Termination Date, said
indemnification and hold harmless to attached to any claims made by any
succeeding tenant or prospective tenant founded upon such delay.
26.2 Landlord will attempt to accommodate an extension of this Lease of up
to four (4) months after the scheduled Termination Date on reasonable terms if
no other tenant is requiring delivery of the Demised Premises. However,
notwithstanding the foregoing, in the event Tenant remains in possession of the
Demised Premises after the Termination Date without the execution of a new Lease
or short-term extension, at the option of Landlord, shall be deemed to be
occupying the Demised Premises as a tenant from month to month, at a monthly
rental equal to two times the Base Rent and Additional Rent payable during the
last month of the Term, subject to all of the other terms and conditions of this
Lease insofar as the same are applicable to a month-to-month tenancy.
27. MORTGAGES.
27.1 If, in connection with obtaining, continuing or renewing financing for
which the Building, Property, leasehold or any interest therein represents
collateral in whole or in part, a banking, insurance or other lender shall
request reasonable modifications of this Lease as a condition of such financing,
Tenant shall forthwith consent thereto provided that such modifications do not
increase the obligations of Tenant hereunder or adversely affect to a material
degree the Tenant's leasehold interest hereby created.
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27.2 Tenant agrees to give any mortgagees by registered or certified mail,
return receipt requested, a copy of any notice of default served upon the
Landlord, provided that prior to such notice, Tenant has been notified, in
writing, (by way of notice of assignment of rents and leases, or otherwise) of
the address of such mortgagees. Tenant further agrees that if Landlord shall
have failed to cure such default within the time provided for in this Lease,
then the mortgagees shall have an additional thirty (30) days within which to
cure such default or if such default cannot be cured within that time, then such
additional time as may be necessary if within such thirty (30) days, any
mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure) in which event this Lease shall
not be terminated while such remedies are being so diligently pursued.
28. RULES AND REGULATIONS.
Tenant and Tenant's servants, employees, agents, visitors, and licensees
shall observe faithfully, and comply strictly with, the Rules and Regulations as
set forth on Exhibit C, attached hereto and made a part hereof, and such other
and further reasonable Rules and Regulations as Landlord or Landlord's agents
may from time to time adopt. Notice of any additional rules or regulations shall
be given in such reasonable manner as Landlord may elect. Nothing in this Lease
contained shall be construed to impose upon Landlord any duty or obligation to
enforce the Rules and Regulations or terms, covenants or conditions in any other
lease, as against any other tenant and Landlord shall not be liable to Tenant
for violation of the same by any other tenant, its servants, employees, agents,
visitors or licenses.
29. MISCELLANEOUS.
29.1 BINDING NATURE. The covenants, conditions and agreements contained in
this Lease shall bind and inure to the benefit of Landlord, Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this Lease, their assigns.
29.2 APPLICABLE LAW. This Lease shall be construed and enforced in
accordance with the laws of the State of Connecticut.
29.3 NONRECOURSE. Tenant shall look solely to the estate and interest of
Landlord, it successors and assigns, in the Property for the collection of a
judgment (or other judicial process) requiring the payment of money by Landlord
in the event of any default by Landlord hereunder, and no other property or
assets of Landlord (or if Landlord is a partnership of any partner of Landlord)
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to either this Lease,
the relationship of Landlord and Tenant hereunder or Tenant's use and occupancy
of the Demised Premises.
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29.4 NO RECORDATION. Tenant expressly warrants and represents that it will
not record this Lease, but Landlord will, upon Tenant's request and at Tenant's
sole cost and expense, execute a Notice of Lease (setting forth only the minimum
requirements necessary for recording) which Tenant may record.
29.5 SEPARABILITY. If any of the provisions of this Lease, or the
application thereof to any person or circumstance, shall to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby.
29.6 CAPTIONS. The captions are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
Lease or the intent of any provisions thereof.
29.7 NOTICE PROVISION. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been given if delivered by hand or mailed, certified or
registered mail, with postage prepaid:
a. If to the Tenant, to:
Dr. James W. Biondi
Cardiopulmonary Corp.
200 Cascade
Milford, CT 06460
With a copy to:
Mimi M. Lines, Esq.
Robinson & Cole
One Commercial Plaza
Hartford, CT 06103-3597
or to such other person or address as Tenant shall furnish Owner in writing.
b. If to Landlord, to:
Controller
P.O. Box 3010
Milford, CT 06460
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals the
day and year first written above.
Signed in the presence of: (Landlord)
SC Properties LLC
/s/ By:/s/
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(Tenant)
Cardiopulmonary Corporation
/s/ By:/s/JAMES W. BIONDI, M.D.
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