LEASE dated 9/30 ,1997, by and between FRENCH'S MILL ASSOCIATES II,
LLP, a Connecticut general partnership having a principal place of business in
the City of Waterbury, County of New Haven and State of Connecticut (hereinafter
referred to as "Landlord") and OPTICARE EYE HEALTH CENTERS, INC., having a
principal place of business in the said City of Waterbury, County of New Haven
and State of Connecticut (hereinafter referred to as "Tenant")
W I T N E S S E T H:
ARTICLE I
DEMISE, PREMISES, TERM, OPTION, RENTS
1.1. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, space in tie Building (hereinafter defined) owned by Landlord and
located at 000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxxxx. The building is
hereinafter referred to as "Building"; and the land and upon which the Building
is located is hereinafter referred to as Land" said Building and Land being more
particularly bounded and described on Exhibit A, and shown on Exhibit B both
being attached hereto and hereby made a part hereof. The Building, Land and any
other improvements thereon are hereinafter collectively referred to as the
"project".
1.2. The space hereby leased to Tenant is situated on the upper level
of the building and consists of 4,922 square feet and is shown on Exhibit C
attached hereto and hereby made a part hereof. Said space, together with all
fixtures and equipment which at the commencement or during the term of this
Lease are thereto attached (except items not deemed to be included therein and
removable by Tenant as provided in Article XIII), constitute and are hereinafter
called the "Demised Premises". In addition, Tenant shall have, as appurtenant to
the Demised premises, the non-exclusive right to use, and permit its invitees to
use in common with others, public or common lobbies, hallways, stairways, and
passenger elevators in the Building, subject however, to all reasonable rules
and regulations from time to time established by Landlord.
1.3. This Lease shall be for a term of fifteen (15) years, commencing
October 1, 1997.
1.4. During the first five (5) of the leasehold term, the Tenant agrees
to pay to the Landlord a fixed minimum annual rental of the sum of Seventy Six
Thousand Seven Hundred Eighty Three dollars & 20/l00ths Dollars ($76,783.20),
payable in equal monthly installments of Six Thousand Three Hundred Ninety Eight
dollars & 60/100ths Dollars ($6,398.60) each, on the first day of each month, in
advance. Thereafter, the fixed minimum annual rental shall be adjusted every
five years (5) in accordance with Rider I attached hereto and made a part
hereof.
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1.5. Tenant shall have the option to extend this Lease for one (2)
additional term of ten (10) years each on the same terms and conditions, as
herein provided, except rental rate shall be according to Rider I; said option
shall be exercised by written notice from Tenant to Landlord at least six (6)
months prior to the expiration of the then existing leasehold term. If Tenant
holds over without having or exercising said option to extend, it shall be
considered a month-to-month Tenant and shall pay the adjusted rental as set
forth in Rider I herein, plus twenty-five percent (25%) of the adjusted rental.,
as a privilege for holding over.
1.6. Tenant agrees to pay to Landlord the fixed rent and additional
rent herein reserved promptly as and when the same shall become due and payable
without demand therefor and without any abatement, deduction or set off, except
as specifically provided for herein.
1.7. If the date Tenant is obligated to commence payment of rent falls
on a day other than the first day of a calendar month, the fixed rent for such
calendar month shall be prorated (on a thirty day basis) so that all future
rental payments shall be made on the first day of a calendar month and the
leasehold term shall be extended accordingly.
1.8 Tenant agrees that it, its permitted assignees or sub-lessees shall
use the Demised premises for the sole and exclusive purpose of conducting
therein all office uses, and all activities reasonably associated therewith.
ARTICLE II
USE AND CONDITION
2.1. If any governmental license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised premises, or any part thereof, and if failure to secure
such license or permit would in any way affect Landlord, Tenant, at its
expenses, shall duly procure and thereafter maintain such license or permit and
submit the same to inspection by Landlord. Tenant shall at all times comply with
the terms and conditions of each such license or permit.
2.2. Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Demised Premises, in violation of the certificate
of Occupancy for the Demised Premises, or for the Building or in violation of
any rules and/or regulations prescribed in Exhibit D, annexed hereto.
ARTICLE III
CONSTRUCTION OF THE DEMISED PREMISES
3.1. The Demised Premises shall be delivered by Landlord to Tenant
as-is.
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ARTICLE IV
UTILITIES
41. The Tenant shall be responsible for 25.36% of all charges for
electric, light and power, heating of hot water and the cost for the operation
of heating and air conditioning to the Demised Premises which is its share of
commonly metered space occupied by Opticare Eye Health Centers, Inc., Urology
Specialists, P.C., and Rehab Health, P.C.
ARTICLE V
ADJUSTMENTS OF RENT
5.1. "Taxes" shall mean the real estate taxes imposed upon the Project
by any governmental bodies or authorities having power to tax the Project. If at
any time during the term of this Lease the methods of taxation prevailing at the
commencement of the term hereof shall be altered so that in lieu of, or as an
addition to or as a substitute for the whole or any part of the taxes,
assessments, levies, impositions, or charges, now levied, there shall be levied,
assessed and imposed, (i) a tax assessment, levy, imposition, or charge wholly
or partially as a capital levy or otherwise on the rents received therefrom or
(ii) a license fee measured by the rent payable by Tenant to Landlord, or (iii)
any other such additional or substitute tax, assessment, levy, imposition or
charges as the part thereof so measured or based shall he deemed to be included
within the term "Tax" for the purpose thereof Tenant shall have no obligation to
pay income, estate or franchise taxes of the Landlord.
5.2. "Base Tax" imposed upon the Project shall mean the amount of the
taxes payable on the Grand List of October 1, 1986, in the amount of
$122,791.46.
5.3. "Excess Tax" or "Excess Taxes" shall mean any amount of Taxes
payable by Landlord upon the Project in any Tax Year in excess of the Base Tax.
5.4. "Tax Year" shall mean a twelve (12) month period beginning on
October 1st of one year and ending on September 30th of the following year.
5.5 "Tenant's Proportionate Share" of the Excess Tax shall be 10.1%
percent.
5.6. "Permanent Improvements" shall mean any leasehold improvement made
by Tenant, unless such improvement shall be assessed against the Tenant by the
taxing authority as personal property.
5.7. Tenant agrees throughout the term of this Lease to pay to
Landlord, Tenant's Proportionate Share of any Excess Taxes. (That amount payable
by Tenant is hereinafter called
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the "Tax Payment"). In the event this Lease shall commence or terminate during
any Tax Year, then Tenant's Tax Payment for that Tax Year shall be prorated on a
twelve (12) month basis. Tenant agrees to pay the amount of such Tax Payment to
the Landlord within thirty (30) days after submission of a xxxx therefor, which
shall be paid in two installments: July 1 and February 1 of each year.
5.8. If Landlord shall receive a refund for any Tax Year of any Excess
Tax in which a Tax Payment shall have been made by Tenant. Landlord shall repay
to Tenant, is proportionate Share of such refund after deducting therefore
Tenant's Proportionate Share of the costs and expenses (including but not
limited to attorney's fees and appraiser's fees) of obtaining such refund.
5.9. "Operating Expense Charges" shall include the following:
(i) cleaning of all common areas which are not in the
exclusive possession and control of any one tenant, i.e., bathrooms, stairways,
elevator, hallways, lobby, garage, storage areas, all parking areas;
(ii) cost of all common area utilities including common area
lighting, common area electrical, water and elevator maintenance;
(iii) maintenance and repair of all interior and exterior
structural and mechanical components of building including heating system,
electrical system, plumbing system, sprinkler system and air-conditioning
system;
(iv) trash removal, landscape maintenance and parking lot
maintenance;
(v) cost of fire, liability and extended coverage insurance
for the Project;
(vi) management fees and any miscellaneous charges and
expenses which legitimately relate to the maintenance, repair and operation of
the building and parking areas.
5.10. "Base Operating Expense Charges" shall mean the amount of said
charges as defined herein incurred by the Landlord during the twelve (12) month
period beginning January 1, 1987, and ending on December 31, 1987, in the amount
of Twenty-Seven Thousand Three Hundred Thirty-Four and 45/l00ths Dollars
($27,334.45).
5.11. "Excess Operating Expense Charges" shall mean any increase in the
amount of said charges incurred by the Landlord over the Base Operating Expense
Charges, as herein above defined.
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5.12. Tenant's proportionate share of the "Excess Operating Expense
Charges" shall be 6.3%. Tenant agrees throughout the term of this Lease to pay
to Landlord Tenant's proportionate share of any Excess Operating Expense charges
as defined herein in accordance with tenant's proportionate share as defined
herein, which is 10.1%.
5.14. Tenant agrees to pay the amount of Excess Operating Expense
charges to the Landlord within thirty (30) days after the submission of a xxxx
therefor.
5.15. Said xxxx for Excess Operating Expense charges shall be sent
annually to the Tenant and shall be accompanied by a detailed statement from the
Landlord outlining the Operating Expense Charges.
5.16. The Excess Operating Expense Charges allocated to the Tenant each
year shall also serve as an estimate of said charges for the next calendar year.
Each calendar year said charge shall be divided by twelve (12) and shall be
payable in twelve (12) equal monthly installments commencing January 1 of each
year. At the end of each calendar year, when the above described Excess
Operating Expense Charges accounting is made, the Tenant shall receive credit
for said estimated portion already paid during the year and the Tenant shall be
liable only for the remainder of its actual allocated charge. If the portion
already paid exceeds the allocated charge, then the Tenant shall receive a
reimbursement for any amount over-paid. The intent hereof is that the Tenant
will be paying on a monthly basis an estimate of the Tenant's share of the
current year's Excess Operating Expense charges based upon the previous year's
actual operating charges.
5.17. Tenant shall have the right, at any reasonable time, to examine
the books of the Landlord to verify these charges.
ARTICLE VI
SUBORDINATION. NOTICE TO MORTGAGEES
6.1. This Lease shall be subject to and subordinate at all times to any
and all mortgage or mortgages hereafter placed on or against the Demised
Premises and to all renewals, modifications, consolidations, replacements and
extensions thereof, which said mortgage or mortgages may be in any principal
amount or amounts, provided that the mortgagee or mortgagees is or are a lending
institution or institutions and/or an insurance company or companies duly
authorized to do business in the State of Connecticut.
6.2 In confirmation of such subordination, the Tenant shall execute and
deliver promptly any certificate or instruments subordinating this Lease and the
leasehold estate hereby granted to any such mortgage or mortgages, and to the
lien thereof, that the Landlord may
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request; provided, always however, that this Article VI is and shall be
self-executing, and that this Lease Is and shall be subject and subordinate to
all such mortgage or mortgages, without the execution by the Tenant of any
instrument or instruments whatsoever
Notwithstanding said subordination, this Lease shall continue
in full force and effect, and the Tenant's rights hereunder shall not be
disturbed except as in this Lease provided and such nondisturbance status shall
be acknowledged by the mortgagee to whom the subordination runs.
ARTICLE VII
QUIET ENJOYMENT
7.1. So long as Tenant pays all of the fixed rent and additional rent
due hereunder and performs all of Tenant's other obligations hereunder, Tenant
shall peaceably and quietly have, hold and enjoy the Demised Premises. This
covenant shall be binding upon the Landlord only so long as Landlord is in
possession and collecting rent from Tenant and all liability of Landlord
hereunder shall cease upon a transfer of Landlord's interest in the Building but
shall thereafter be binding upon the transferee of Landlord's interest.
ARTICLE VIII
ASSIGNMENT
8.1. The Tenant shall have no right to assign this Lease, or sublet the
premises, unless it shall first, in writing, request the Landlord for permission
to do so, which permission shall not be unreasonably withheld or delayed. If
such request is reasonable, the Landlord, at his option, shall either.
(i) give the Tenant such permission, and thereafter upon such
assignment or subletting, the Tenant shall continue to be as fully responsible
for all the obligations under this Lease, as though it continued to occupy the
Demised Premises;
(ii) terminate this Lease, in which case it shall notify the
Tenant of such election, and this Lease shall, by virtue of such notice,
terminate on the last day of the month in which such notice is given.
8.2. In the event Landlord consents to an assignment or sublet by the
Tenant as set forth above:
(i) Tenant covenants and agrees that immediately upon entering
into said assignment or sublease, Tenant will deliver to the Landlord a true and
correct copy of same;
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(ii) In the event that the Tenant shall default in the performance
of any of the terms, provisions, covenants, agreements or conditions of this
Lease on the part of the Tenant to be performed, and should default continue for
the respective periods in this Lease set forth, the Landlord shall have the
right, at its option, forthwith and without notice, to collect the rentals and
other charges from the subtenant or assignee, and apply them to curing the
default or defaults of the Tenant hereunder until such default or defaults have
been cured.
ARTICLE XX
COMPLIANCE WITH LAWS AND REQUIREMENTS OF PUBLIC AUTHORITIES
9.1. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of public authority, and at
its expense shall comply with all laws and requirements of public authorities
which shall, with respect to the Demised Premises or the use and occupancy
thereof, or the abatement of any nuisance, impose any violation, order or duty
on Landlord or Tenant arising from (i) Tenant's use of the Demised Premises,
(ii) the manner of conduct of Tenant's business or operation of its
installations, equipment or other property therein, (iii) any cause or condition
created by the Tenant, or (iv) breach of any of Tenant's obligations hereunder.
However, Tenant shall not be required to make any structural or other
substantial change in the Demised Premises unless the requirement arises from a
cause or condition referred to in clauses (i), (ii), (iii), or (iv) above.
Furthermore, Tenant need not comply with any such law or requirement of public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Article 9.2.
Landlord, at its expense, shall comply with all other such laws; and
requirements of public authorities as shall affect the Demised Premises, but may
similarly contest the same. Said contest shall not affect Tenant's ability to
operate its business.
9.2. Tenant may, at its expense, (and if necessary, in the name of but
without expense to Landlord) contest by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings, provided that:
(i) Landlord shall not be subject to criminal penalty or to
prosecution for a crime nor shall the Demised Premises or any part thereof be
subject to being condemned or vacated, by reason of non-compliance or otherwise
by reason of such contest;
(ii) Such noncompliance or contest shall not constitute or result
in any violation of any superior mortgage, or if such superior mortgage shall
permit such noncompliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be furnished at the
expense of Tenant; and
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(iii) Tenant shall keep Landlord advised as to the status of such
proceedings.
ARTICLE X
FIRE INSURANCE COMPLIANCE - WAIVER OF SUBROGATION
10.1. Tenant shall not violate, or permit the violation of, any
condition imposed by the fire insurance policies carried by Landlord with
respect to the Project and shall not do, or permit anything to be done, or keep
or permit anything to be kept in the Demised Premises which would subject
Landlord to any liability or responsibility for personal injury or death or
property damage, or which would increase the fire or other casualty insurance
rate on the Building or the property therein over the rate which would otherwise
then be in effect (unless Tenant pays the resulting premium as provided in
Section 10.3) or which would result in insurance companies of good standing
refusing to insure the Building or any of such property in amounts reasonably
satisfactory to Landlord.
10.2. Tenant agrees to carry fire insurance polices with extended
coverage, with respect to Tenant's fixtures, and any leasehold improvements made
by Tenant, in an amount equal to their replacement value. Landlord shall be
named as an additional insured upon each such policy. Said policies shall
contain a provision whereby the insurer agrees not to cancel such insurance
without ten (10) days prior notice to Landlord. On or before the commencement
date of this Lease, Tenant shall furnish Landlord with a certificate evidencing
the aforesaid insurance coverage and renewals shall be furnished to Landlord
within ten (10) days of the expiration date of such policy for which a policy
was to have been furnished. In case a tire loss occurs, then and in such event
if there is no loss to Landlord, the Landlord agrees to endorse any and all
drafts in connection with such loss.
10.3. Landlord and Tenant shall each endeavor to secure an appropriate
clause in, or an endorsement upon, each fire or extended coverage or rent
insurance policy obtained by it and covering the Building, the Demised Premises
or the personal property, fixtures and equipment located therein or thereon,
pursuant to which the respective insurance companies waiver subrogation or
permit the insured, prior to any loss, to agree with a third party to waive any
claim it might have against said third party. The waiver of subrogation or
permission for waiver of any claim hereinbefore referred to shall extend to the
agents of each party and its employees and, in the case of Tenant, shall also
extend to all other persons and entities occupying or using the Demised Premises
in accordance with the terms of this Lease.
In the event that Tenant shall be unable at any time to obtain any
of the provisions referred to above in any of its insurance policies, Tenant
shall cause Landlord to be named in such policy or policies as one of the
assured.
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Each party hereby releases the other with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage or destruction with respect to its property by fire
or other casualty (including rental value or business interest, as the case may
be) occurring during the term of this Lease.
This Paragraph shall not apply if it violates or invalidates the
terms of any insurance coverage carried by either party.
10.4. Tenant hereby agrees that in the event that the premium charged
to Landlord for any and all insurance policies carried by Landlord and covering
the Project, of which the Demised Premises are a part, shall increase as a
result of any activity in the use of the Demised Premises by Tenant, whether or
not consented to by Landlord, Tenant shall pay the cost of any such increase and
such increase shall be paid within fifteen (15) days next following Landlord's
billing of same.
10.5. It is understood and agreed by Tenant that Tenant will comply at
Tenant's sole cost and expense with all rules, regulations, ordinances or
requirements of the Connecticut Board of Fire Underwriters or any other similar
body having jurisdiction over the Building of which the Demised Premises are a
part, with respect to the Demised Premises. Tenant shall not be responsible for
any structural repairs or alterations unless such are required as a result of
Tenant's use.
10.6 Landlord shall maintain during the term of this Lease fire
insurance policies with extended coverage in an amount equal to at least eighty
percent (80%) of the replacement cost of the Building. Landlord shall also
maintain liability insurance with respect to the Building and the Land in an
amount of at least One Million Dollars ($1,000,000.00) on a flat limit basis.
ARTICLE XI
RULES AND REGULATIONS
11.1 Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit D, and such
reasonable and lawful changes therein (whether by modification, elimination or
addition) as Landlord at any time or times hereafter may make and communicate in
writing to Tenant, which do not unreasonably affect the conduct of Tenant's
business in the Demised Premises and which do not derogate the Tenant's use of
the space.
11.2. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations
or the terms covenant, or
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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 or its
employees, agents or visitors.
ARTICLE XII
TENANT'S ALTERATIONS
12.1. Tenant may from time to time during the term of this Lease, at
its expense, make such alterations, installations, substitutions, improvements
and decorations (hereinafter collectively called "changes" and, as applied to
changes provided for in this Article, "Tenant's Alterations") in and to the
Demised Premises, excluding structural changes, as Tenant may reasonably
consider necessary for the conduct of its business in the Demised Premises on
the following conditions:
(i) The outside appearance or the strength of the Building or the
Demised Premises or of any of their structural parts shall not be affected.
(ii) No part of the Building outside of the Demised Premises shall
be physically affected.
(iii) The proper functioning of any of the air-conditioning,
heating, or other mechanical, electrical, sanitary and other service systems of
the Demised Premises and Building shall not be adversely affected by Tenant.
(iv) In performing the work involved in making such alterations,
Tenant shall be bound by and observe all of the conditions and covenants
contained in the following Sections of this Article.
(v) Before proceeding with any Tenant Alterations, including but
not being limited to any change to the plumbing, air-conditioning, electrical,
or ventilating Systems, Tenant shall submit to Landlord plans and specifications
for the work to be done, for Landlord's written approval, which shall not be
unreasonably withheld or delayed.
12.2. Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Tenant's
Alterations to be performed in compliance therewith and with all applicable laws
and requirements of public authorities, and with all applicable requirements of
insurance bodies, and in good and workmanlike manner, using new materials and
equipment at least equal in quality and grade to the original installations of
the Building. Tenant's Alterations shall be performed in such manner as not to
interfere unreasonably with or delay and (unless Tenant shall indemnify Landlord
therefor) as not to impose any additional expense upon Landlord in the
construction, maintenance or operation of
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the Building. Throughout the performance of Tenant's Alterations, Tenant, at its
expense, shall carry, or cause to be carried, worker's compensation insurance
and general liability insurance for any occurrence in or about the Building, of
which Landlord and its agents shall be named as parties insured, in such limits
as Landlord may reasonably prescribe, with insurers reasonably satisfactory to
Landlord. Tenant shall furnish Landlord with reasonably satisfactory evidence
that such insurance is in effect at or before the commencement of Tenant's
Alterations and, on request, at reasonable intervals thereafter during the
continuance of Tenant's Alterations. If any of Tenant's Alterations shall
involve the removal of any fixtures, equipment or other property in the Demised
Premises which are not Tenant's Property (as defined in Article XIII), such
fixtures, equipment or other property shall be promptly replaced at Tenant's
expense, with new fixtures, equipment or other property (as the case may be) of
like utility and at least equal value unless Landlord shall otherwise expressly
consent in writing.
12.3. Tenant, at its expense and with diligence and dispatch shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Alterations which shall be issued by the
then public authority having or asserting jurisdiction. Tenant shall defend,
indemnify and save harmless Landlord against any and all mechanics' and other
liens filed in connection with Tenant's Alterations, including the liens of any
conditional sales, or chattel mortgages upon or financing statements or security
agreement: affecting any materials, fixtures, or articles so installed in and
constituting part of the Demised Premises and against all costs, expenses and
liabilities incurred in connection with any such lien, conditional sale or
chattel mortgage or financing statement or security agreement or any action or
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within fifteen (15) days after
Landlord makes written demand therefor.
ARTICLE XIII
TENANT'S PROPERTY
1 3.1. All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the term
of this Lease, including but not limited to non-portable heating, plumbing,
electrical, ventilating and air-conditioning equipment, whether or not by or at
the expense of Tenant, shall be and remain a part of the Demised Premises, shall
be deemed the property of Landlord and shall not be removed by Tenant, except as
hereinafter in this Article expressly provided.
13.2. All moveable partitions, other business and trade fixtures, and
other machinery and equipment (excluding heating, air-conditioning and
ventilating), communications equipment, sound, stereo or other electrical
equipment and office equipment, which are installed in the Demised Premises by
or for the account of Tenant, without expense to Landlord, and can be removed
without structural damage to the Building and all furniture, furnishings and
other
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articles of moveable personal property owned by Tenant and located in the
Demised Premises (all of which are sometimes called "Tenant's Property") shall
be and shall remain the property of the Tenant and may be removed by it at any
tine during the term of this Lease; provided, that if any of Tenant's Property
is removed, Tenant shall repair or pay the cost of repairing any damage to the
Demised Premises or to the Building resulting from such removal.
13.3. At or before the Expiration Date, or the date of any earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant's Property, except such items thereof as Tenant shall
have expressly agreed in writing with Landlord were to remain to become the
property of Landlord shall be removed by Tenant and Tenant shall repair any
damage to the Demised Premises or the Building resulting from such removal.
13.4. Any other items of Tenant's Property (except money, securities,
and other like valuables, including computers or related equipment), which shall
remain in the Demised Premises after the Expiration Date or after a period of
fifteen (15) days following an earlier termination date, may, at the option of
the Landlord, be deemed to have been abandoned, and in such case either may be
retained by Landlord as its property or may be disposed of, without
accountability, in such manner as Landlord may see fit at Tenant's expense.
13.5. Tenant shall be responsible for and shall pay before delinquency
all municipal, county or state taxes assessed during the term of this Lease
against any personal property of any kind, owned by or placed in, upon or about
the Demised Premises by the Tenant.
13.6 Landlord shall not be liable for any damages to property of Tenant
or of others located on the Demised Premises, nor for the loss of or damage to
any property of Tenant or of others by theft or otherwise, except it caused by a
negligent act of Landlord or his agents. Landlord shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain, or snow or leaks from any part of
the Demised Premises or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatsoever nature, except if caused by a negligent act of
Landlord or his agents. Landlord shall not be liable for any such damage caused
by other tenants or persons in the Demised Premises, occupants or adjacent
property to the Project or the public, or caused by operation in construction of
any private, public or quasi-public work. All property of Tenant kept or stored
in the Demised Premises shall be so kept or stored at the risk of Tenant only.
ARTICLE XIV
REPAIRS AND MAINTENANCE
14.1. Tenant shall take good care of the Demised Premises.
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14.2. Tenant shall not place a load upon any floor of the Demised
Premises which exceeds the load per square foot which such floor was designed to
carry and which is allowed by law.
14.3. Business machines and electronic, sound and mechanical equipment
belonging to Tenant which cause noise or vibration that may be transmitted to
the structure of the Building or to the Demised Premises to such a degree as to
be reasonably objectionable to Landlord shall be placed and maintained by the
party owning the machines or equipment at such party's expense, in settings of
cork, rubber or spring type vibration eliminators sufficient to eliminate noise
or vibration. In the event of any violation, Tenant shall be obligated to make
such repairs to the Demised Premises and Building, resulting therefrom and to
take all steps reasonably necessary to eliminate such noise or vibration.
14.4. Tenant shall not move any safe, heavy equipment or bulky matter
in or out of the Building without the Landlord's prior written consent, which
consent Landlord agrees not to unreasonably withhold or delay. All such moving
shall be made during hours which will least interfere with the normal operations
of the Building and all damage caused by such movement shall be promptly
repaired by Tenant at Tenant's expense.
14.5. Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's making any repairs or changes which Landlord is required or permitted
by this Lease, or required by Law, to make in or to any portion of the Building
or the Demised premises, or in or to the fixtures, equipment or appurtenances of
the Building of the Demised Premises. Landlord agrees to use due diligence with
respect thereto and shall perform work, except in case of emergency, at times
reasonably convenient to Tenant and otherwise in such manner as will not
materially interfere with Tenant's use of the Demised Premises.
14.6. Tenant shall receive deliveries of goods and merchandise only in
such manner, at such times and in such areas as will not unreasonably interfere
with the operation of the Building or the tenants thereof.
ARTICLE XV
INTERRUPTION OF SERVICES
15.1. Landlord reserves the right; without any liability to Tenant
therefor, to stop service of any of the heating, ventilating, air-conditioning,
electric, sanitary, elevator, or any of the other services required of Landlord
under this Lease, whenever and for so long as may be necessary, by reason of
accident, emergencies, strikes or the making of repairs or changes which
Landlord is required by this Lease or by law to make or in good xxxxx xxxxx
necessary, by
14
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond
Landlord's reasonable control.
ARTICLE XVI
ACCESS, CHANGES IN BUILDING FACILITY, NAME
16.1 Except for inside surfaces of the Demised Premises any access to
the lobby and to elevators of the Building, including exterior Building walls,
core corridor walls and doors and any core corridor entrance, any terraces or
roofs adjacent to the Demised Premises, and any space in or adjacent to the
Demised Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other Building facilities, and the use
thereof, as well as access thereto through the Demised Premises for the purpose
of operation, maintenance, decoration and repair, are reserved to Landlord.
16.2. Tenant shall permit Landlord to install, use and maintain pipes,
ducts and conduits within the demised walls, bearing columns and ceilings of the
Demised Premises.
16.3. Landlord or Landlord's agent shall have the right, upon request,
to enter and/or pass through the Demised Premises or any part thereof, after
notice and at reasonable times during reasonable hours, (i) to examine the
Demised Premises and to show them to the fee owners, holders of mortgagee's, or
prospective purchasers, mortgagees, or lessees of the Building as an entirety,
and (ii) for the purpose of making such repairs or changes or doing such
repainting in or to the Building or its facilities as may be provided for by
this Lease or as Landlord may be required to make by law or in order to repair
and maintain the Building or its fixtures or facilities. Landlord shall be
allowed to take all materials into and upon the Demised Premises that may be
required for such repairs, changes, repainting or maintenance, without liability
to Tenant. Landlord shall also have the right to enter on and/or pass through
the Demised Premises, or any part thereof, at such times as such entry shall be
required by circumstances or emergency affecting the Demised Premises or the
Building.
16.4. During the period of six (6) months prior to the expiration date
of this Lease, Landlord may exhibit the Demised Premises to prospective tenants.
16.5. Landlord reserves the right, at any time after completion of the
building, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof, as well as
in or to the street entrances, halls, passages, elevators, and stairways
thereof, as it may deem necessary or desirable except that such changes will not
interfere with Tenant's access to the Demised Premises, or use thereof.
15
ARTICLE XVII
NOTICE OF ACCIDENTS
17.1. Tenant shall give notice to Landlord, promptly after Tenant
learns thereof, of (i) any accident in or about the Demised Premises for which
Landlord might be liable, (ii) all fires in the Demised Premises, (iii) all
damages to or defects in the Demised Premises, including the fixtures, equipment
and appurtenances thereof, for the repair of which Landlord might be
responsible, and (iv) all damage to or defects in any parts or appurtenances of
the Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator and other systems indicated in or passing through the Demised Premises
or any part thereof.
ARTICLE XVIII
INSURANCE, NON-LIABILITY AND lNDEMNIFICATION
18.1. Landlord shall not be liable to Tenant for any injury or damage
to Tenant or to any other person or for any damage to or loss (by theft or
otherwise) of, any property of Tenant or of any other person, irrespective of
the cause of such injury, damage, or loss, unless caused by or due to the
negligent act or omission of Landlord, provided, however, that with respect to
injury, damage or loss resulting from causes set forth in Article 10.3, the
waiver by Tenant provided in Article 10.3 shall govern. No property, other than
such as might normally be brought upon or kept in the Demised Premises as an
incident to the reasonable use of the Demised Premises for the purposes herein
permitted will be brought upon or be kept in the Demised Premises.
18.2. Tenant shall indemnify and save harmless Landlord and its agents
against and from (a) any and all claims (i) arising from the conduct or
management of the Demised Premises by Tenant, or of any business therein by
Tenant, or any work or thing whatsoever done or any condition created by Tenant
in or about the Demised Premises, or (ii) arising from any negligent or
otherwise wrongful act or omission of Tenant or any of its subtenants or
licensees or its or their employees, agents or contractors, and (b) all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon. In case any action or proceeding be
brought against Landlord, by reason of any such claim, Tenant, upon notice from
Landlord, shall resist and defend such action or proceeding.
18.3. In addition to the foregoing indemnification, Tenant agrees that
Tenant will, at its own costs and expense, maintain insurance protection and
indemnity Landlord and Tenant against any and all claims for injury and damage
to persons or property or for the loss of life or property occurring on, in or
about the Demised Premises, and arising out of the act, negligence, omission,
non-feasance, or malfeasance, of Tenant, its employees, agents, contractors,
customers, licensees and invitees. Such insurance shall be carried in a minimum
amount of not
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less than $1,000,000.00 in respect to bodily injury or death to any one person
or in respect to any one occurrence or accident and not less than $500,000 for
property damage. All such insurance shall be issued by insurers of recognized
responsibility authorized to do business in the State of Connecticut and shall
name Landlord" as an additional insured and contain a provision whereby the
insurer agrees not to cancel such insurance without ten (10) days prior notice
to Landlord. On or before the commencement date of this Lease, Tenant shall
furnish Landlord with a certificate evidencing the aforesaid insurance coverage
and renewals shall be furnished to Landlord within ten (10) days of the
expiration date of such policy for which a policy was to have been furnished.
18.4. This Lease and the obligations' of either party hereunder (except
for payment of money) shall be in no wise affected, impaired or excused because
Landlord is unable to fulfill, or is delayed in fulfilling, any of it's
obligations under this Lease by reason of strike, other labor trouble,
governmental pre-emption or priorities or other controls or shortages of fuel,
supplies or labor resulting therefrom, or other like causes beyond Landlord's
reasonable control.
ARTICLE XIX
DESTRUCTION OR DAMAGE
19.1. If the Building or the Demised Premises shall be damaged or
destroyed by tire or other casualty, and this Lease shall not have been
terminated as provided in Paragraph 19.3., Landlord shall repair the damage and
restore and rebuild the Building and/or the Demised Premises, at his expense,
with reasonable dispatch after notice to it of the damage or destruction;
provided, however, that Landlord shall not be required to repair or replace any
of Tenant's Property or any alteration or leasehold improvements made by Tenant.
19.2. If the Demised Premises shall be partially damaged or partially
destroyed by tire or other casualty, the rents payable hereunder shall be abated
to the extent that the Demised Premises shall have been rendered untenantable
and for the period from the date of such damage or destruction to the date the
damage shall be repaired or restored.
19.3. If the Building or the Demised Premises shall be substantially
damaged or destroyed by fire or other casualty, then in either such case,
Landlord may terminate this Lease by giving Tenant notice to such effect within
ninety (90) days after the date of the casualty, which notice shall be given as
in this Lease provided, and thereupon the term of this Lease shall expire by
lapse of time upon the thirtieth (30th) day after notice is given and Tenant
shall vacate the Demised Premises and surrender the same to Landlord. The
Demised Premises and/or Building (whether or not the Demised Premises are
damaged), shall be deemed substantially damaged or destroyed if Landlord is
required by expend thirty (30%) percent or more of the full
17
replacement value of (a) the Building or (b) thirty (30%) percent or more of the
full replacement value of the Demised Premises immediately prior to such damage
and destruction.
ARTICLE XX
EMINENT DOMAIN
20.1. If the whole of the Building or any part of the Demised Premises
shall be lawfully taken by condemnation or in any other manner for any public or
quasi-public use or purpose, this Lease and the term and estate hereby granted
shall forthwith terminate as of the date of vesting of title in such condemning
authority (which date is hereinafter also referred to as the date of taking),
and the rents shall be prorated and adjusted as of such date.
20.2. If any part of the Building, not including any part of the
Demised Premises, shall be taken by condemnation or in any other manner for any
public or quasi-public use or purpose, then at the Landlord's sole option to be
exercised within thirty (30) days after the effective date of such taking, this
Lease shall terminate as of the date of taking and the rents shall be prorated
and adjusted as of such date.
20.3 In the event of any taking, partial or whole, provided for in this
Article, all of the proceeds of any award, judgment or settlement payable by the
condemning authority Shall be and remain the sole and exclusive property of the
Landlord, and Tenant shall not be entitled to any portion of such award,
judgment or settlement received by Landlord from such condemning authority.
Tenant, however, may pursue its own claim against the condemning authority for
any damage or award permitted under the laws of the State of Connecticut to be
paid to the Tenant without diminishing or reducing the award, judgment or
settlement receivable by Landlord.
ARTICLE XXI
SURRENDER
21.1. On the last day of the term of this lease, or upon any earlier
termination of this Lease, or upon any re-entry by landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord in
good order, condition, and repair, except for ordinary wear and tear and such
damage or destruction as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of Tenant's Property therefrom except as
otherwise expressly provided in this Lease.
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ARTICLE XXII
TENANT'S DEFAULT
22.1 If Tenant shall make an assignment for the benefit of creditors,
or shall file a voluntary petition under any bankruptcy or insolvency law, or
any involuntary petition alleging an act of bankruptcy or insolvency shall be
filed against Tenant under any bankruptcy or insolvency law, or if a petition
shall be filed by or against Tenant under the organization provisions of the
United States Bankruptcy Act or under the provisions of any law of like import,
or if a petition shall be filed by Tenant under the arrangement provisions of
the United States Bankruptcy Act or under the provisions of any law of like
import, or Whenever a permanent receiver of Tenant or of or for the property of
Tenant shall be appointed, then, Landlord, (a) at any time after receipt of
notice of the occurrence of any such event, or (b) if such event occurs without
the acquiescence of Tenant, at any time after the event continues for sixty (60)
days, may give Tenant a notice of intention to end the term of this Lease at the
expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effects as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Section 22.3.
22.2. If Tenant shall default in the payment of any installment of
fixed rent, or in the payment of any additional rent or any other charge payable
by Tenant to Landlord, on any day upon which the same ought to be paid, and such
default shall continue for ten (10) days after notice or if Tenant shall do or
permit anything to be done, whether by action or inaction, contrary to any of
Tenant's obligations hereunder, and if such situation shall continue and shall
not be remedied by Tenant within thirty (30) days after Landlord shall have
given to Tenant a notice specifying the same, or, in the case of a happening or
default which cannot with due diligence be cured within a period of thirty (30)
days if Tenant shall not (i) within said thirty (30) day period advise Landlord
of Tenant's intention to institute all steps necessary to remedy such situation,
(ii) duly institute within said thirty (30) day period, and thereafter
diligently prosecute to completion all steps necessary to remedy the same and
(iii) complete such remedy within such time after the date of the giving of said
notice of Landlord as shall reasonably be necessary, or if any event shall occur
or any contingency shall arise whereby this Lease or the estate hereby granted
or the unexpired balance of the term hereof would by operation of law or
otherwise, devolve upon or pass to any person, firm or corporation other than
Tenant, except as expressly permitted by Article VIII, or if Tenant shall
abandon the Demised Premises (unless as a result of a casualty), therein any of
said cases set forth above, Landlord may (in addition to any and all rights at
law or in equity) re-enter and remove all persons and property from the Demised
Premises and such property may be removed and stored in a public warehouse or
elsewhere at
19
the cost of, and for the account of Tenant, all without being deemed guilty of
trespass, or becoming liable for any loss or damage which may be occasioned
thereby.
22.3. Should Landlord elect to re-enter, as herein provided, or should
it take possession pursuant to legal proceedings or pursuant to any notice
provided for by law, it may either terminate this Lease, or make such
alterations and repairs as may be necessary in order to relet the premises, and
relet said premises or any part hereof for such term or terms (which may be for
a term extending beyond the term of this Lease) and at such rental or rentals
and upon such other terms and condition; as Landlord in its discretion may deem
advisable; and, upon each such reletting, all rentals received by the Landlord
from such reletting shall be applied first, to the payment of any indebtedness
other than rent due hereunder from Tenant to Landlord; second, to the payment of
any costs and expenses of such reletting, including brokerage fees and
attorney's fees and of costs of such alterations and repairs; third, to the
payment of rent due and unpaid hereunder, and the residue, of any, shall be held
by Landlord and applied in payment of future rent as the same may become due and
payable hereunder. If such rentals received from such reletting during any month
be less than that to be paid during that month by Tenant hereunder, Tenant shall
pay any deficiency to Landlord. Such deficiency shall be calculated and paid
monthly. No such re-entry or taking Possession of said premises by Landlord
shall be construed as an election on its part to terminate this Lease unless a
written notice of such intention be given to Tenant or unless the termination
thereof be decreed by a court of competent jurisdiction. Notwithstanding any
such reletting without termination, Landlord may at any time thereafter elect to
terminate this Lease for such previous breach. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur, by reason of such
breach, including the cost of recovering the Demised Premises, reasonable
attorney's fees, and including the worth at the time of such termination of the
excess, if any, of the amount of rent and charges equivalent to rent reserved in
this Lease for the remainder of the stated term over the then reasonable rental
value of the Demised Premises for the remainder of the stated term, all of which
amounts shall be immediately due and payable from Tenant to Landlord. In
determining the rent which would be payable by Tenant hereunder, subsequent to
default, the annual rent for each year of the unexpired term shall be equal to
the average annual fixed rental and additional rents paid by Tenant from the
commencement of the term to the time of default.
22.4. The parties hereto shall and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the Demised Premises, and/or claim of injury or damage.
20
22.5 Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the Demised Premises by reason of the violation by Tenant of any
of the covenants or conditions of this Lease.
ARTICLE XXIII
WAIVERS
23.1. Without limiting the generality of any of the foregoing
provisions of this Lease, Tenant hereby waives any and all claims of any kind,
nature, or description against Landlord arising out of a failure of Landlord
from time to time to furnish any of the services required to be furnished by
Landlord under this Lease, including specifically, but without limitation,
air-conditioning, heat, electricity, elevator service and toilet facilities, so
long as the causes of any such failure are beyond the control of the Landlord
and not due to his negligence.
23.2. If Tenant is in arrears in payment of fixed rent or additional
rent hereunder, Tenant waives Tenant's right, if any, to designate the items
against which any payments made by Tenant are to be credited, and Tenant agrees
that Landlord may apply any payments made by Tenant to any items it sees fit,
irrespective of and notwithstanding any designation or request by Tenant as to
the items against which any such payments shall be credited.
23.3. Tenant hereby acknowledges that this Lease constitutes a
commercial transaction, as such term is used and defined in Section 52-278a of
the Connecticut General Statutes, as amended.
ARTICLE XXIV
NO OTHER WAIVERS OR MODIFICATION'S
24.1. The waiver by either party of any breach by Tenant of any term,
covenant or condition herein contained shall not be deemed to be a waiver of
such term, covenant or condition or any subsequent breach of the same or any
other term covenant or condition herein contained. The subsequent acceptance of
rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent. No covenant, term or condition of this Lease shall be deemed to have been
waived by Landlord unless such waiver be in writing by Landlord.
21
24.2. No executory agreement hereafter made between Landlord and Tenant
shall be effective to change, modify waive, release, discharge, terminate or
effect an abandonment of this Lease, in whole or in part, unless such executory
agreement is in writing, refers expressly to this Lease and is signed by the
party against whom enforcement of the change, modification, waiver, release,
discharge or termination or effectuation of the abandonment is sought.
24.3. The following specific provisions of this section shall not be
deemed to limit the generality of any of any of the foregoing provisions of this
Article.
(a) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing and signed by Landlord. The
delivery of keys to an employee of Landlord or of its agents shall not operate a
termination of this Lease or a surrender of the Demised Premises. If Tenant
shall at any time request Landlord to sublet the Demised Premises for Tenant's
account Landlord or its agent is authorized to receive said keys for such
purposes without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord of any liability for loss or damage to any
of Tenant's property in connection with such subletting.
(b) The receipt by Landlord of rent with knowledge of breach of
any obligation of this Lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount
than the correct fixed rent or additional rent due hereunder shall be deemed to
be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease or at law provided.
ARTICLE XXV
CURING TENANT'S DEFAULTS, ADDITIONAL, RENT
25.1. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice, in a case of emergency and in any other case
only if such default continues after the expiration of (i) ten (10) days from
the date Landlord gives Tenant notice of intention so to do, or (ii) the
applicable grace period provided in Section 22.2 or elsewhere in this Lease for
cure of such default, whichever occurs later.
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25.2. Bills for any expenses incurred by Landlord in connection with
any such performance by it for the account of Tenant, and bills for all costs,
expenses, arid disbursements of every kind and nature whatsoever, including
reasonable counsel fees, involved in collection or endeavoring to collect the
fixed rent or additional rent or any part hereof or enforcing or endeavoring to
enforce any rights against Tenant, under or in connection with this Lease, or
pursuant to law, including any such cost, expense and disbursement involved in
instituting and prosecuting summary proceedings, as well as bills for any
property, material, labor or services provided, furnished, or rendered, by
Landlord to Tenant monthly, or immediately, at Landlord's option, and, shall be
due and payable in accordance with the terms of such bills, as additional rent.
ARTICLE XXVI
BROKER
26.1. Tenant covenants, warrants and represents that there was no
broker involved in this Lease.
ARTICLE XXVII
NOTICES
27.1. Any notice, statement, demand or other communication required or
permitted to be given, rendered or made by either party to the other, pursuant
to this Lease or pursuant to any applicable law or requirement of public
authority, shall be in writing, (whether or not so stated elsewhere in this
Lease) and shall be deemed to have been properly given, rendered or made, if
sent by certified mail, return receipt requested, addressed to the other party
at the address hereinafter set forth, and shall be deemed to have been given,
rendered or made on the day so mailed, unless mailed outside of the State of
Connecticut, in which case it shall be deemed to have been given, rendered or
made on the expiration of the normal period of time for delivery of mail from
The post office of origin to the post office of destination. Either party may,
by notice as aforesaid, designate a different address or addresses for notice,
statements, demand or other communications intended for it.
27.2. Address of Tenant to which notices shall be sent:
Attn: Xxxx Xxxxxxxxx
President
OPTICARE EYE HEALTH CENTERS, INC.
00 Xxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
27.3. Address of Landlord to which notices shall be sent:
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Attn: W. Xxxxx Xxxxxxxx
Managing Director
FRENCH'S MILL ASSOCIATES II, LLP
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
ARTICLE XXVIII
ESTOPPEL CERTIFICATE MEMORANDUM OF LEASE
28.1. Each party agrees, at any time and from time to time, as
requested by the other party, upon not less than ten (10) day's prior notice, to
execute and deliver to the other, a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), certifying the dates to which the fixed rent and additional rent
have been paid, and stating whether or not, to the best knowledge of the signer,
the other party is in default in performance of any its obligations under this
Lease, and, if so, specifying each such default of which the signer may have
knowledge, it being intended that any such statement delivered pursuant hereto
may be relied upon by others with whom the party requesting such certificate may
be dealing.
28.2. At the request of either party, Landlord and Tenant shall
promptly execute, acknowledge and deliver a memorandum with respect to this
Lease sufficient for recording in accordance with the statutes of the State of
Connecticut, which shall contain the commencement date of this Lease. Such
memorandum shall not in any circumstances be deemed to change or otherwise
affect any of the obligations or provisions of this Lease. In no event shall
this Lease be recorded and if Tenant records this Lease in violation of the
terms hereof, Landlord shall have the option to terminate this Lease upon notice
to Tenant.
ARTICLE XXIX
REPRESENTATIONS
29.1. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon any warranties, representations, promises or statements, except
to the extent that the same are expressly set forth in this Lease or in any
other written agreement which may be made between the parties concurrently with
the execution and delivery of this Lease and shall expressly refer to this
Lease. This Lease and said other written agreements made concurrently herewith
are hereinafter referred to as the Lease Documents. It is understood and agreed
that all understandings and agreements heretofore had between the parties are
merged in the Lease Documents, which alone
24
fully and completely express their agreement and that the same are entered into
after full investigation, neither party relying upon any statement or
representation not embodied in the Lease Documents, made by the other.
29.2. If any of the provisions of this Lease, or the application
thereof to any person or circumstances, 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, and every
provision of this Lease shall be valid and Enforceable to the fullest extent
permitted by law.
29.3. This Lease shall be governed in all respects by the laws of the
State of Connecticut.
ARTICLE XXX
LIMITATIONS OF OBLIGATIONS
30.1. The obligation of this Lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to except that the provisions
of this Article shall not be construed as modifying the conditions of limitation
contained in Article XXII. However, the obligations of Landlord under this Lease
shall not be binding upon Landlord herein named with respect to any period
subsequent to the transfer of its interest in the Building, and/or Land as owner
or lessee thereof and in the event of such transfer said obligations shall
thereafter be binding upon each transferee of the interest of Landlord herein
named as such owner or lessee of the Building, but only with respect to the
period ending with a subsequent transfer within the meaning of this Article.
30.2. If Landlord shall be an individual, joint venture, tenancy in
common, co partnership, unincorporated association or other unincorporated
aggregate of individuals and/or entitled or a corporation, Tenant shall look
only to such Landlord's estate and property in the Building, and/or Land (or the
proceeds thereof) for the satisfaction of Tenant's remedies 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 such Landlord shall be subject to levy, execution or other
enforcement procedure for the satisfaction of Tenant's remedies under or with
respect to this Lease, the relationship of Landlord and Tenant hereunder to
Tenant's use or occupancy of the Demised Premises.
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ARTICLE XXXI
CONSTRUCTION OF LEASE
31.1. The various terms which are defined in other Articles of this
Lease or are defined in Exhibits annexed hereto, shall have the meanings
specified in such other Article and such Exhibits for all purposes of this Lease
and all agreements supplemental thereto, unless the context shall otherwise
require.
31.2. The Article headings in this Lease and the Index prefixed to this
Lease are inserted only as a matter of convenience in reference and are not to
be given any effect whatsoever in construing this Lease.
31.3. The rule of eiusdem generis shall not be applicable to limit a
general statement following or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned.
ARTICLE XXXII
WASTE
32.1. Tenant shall not commit or suffer to be committed any waste upon
the Demised Premises or any nuisance or other act or thing which may disturb the
quiet enjoyment of any other tenant in the Building in which the Demised
Premises may be located.
32.2. Tenant shall, at Tenant's sole cost and expense, comply with all
of the requirements of all county, municipal, state, federal and other
applicable governmental authorities, now in force, or which may hereafter be in
force, pertaining to the said premises, and shall faithfully observe in the use
of the premises all municipal and county ordinances and state and federal
statutes now in force or which may hereafter be in force.
ARTICLE XXXIII
JANITORIAL SERVICES AND TRASH REMOVAL
33.1. Tenant shall be solely responsible for keeping the Demised
Premises clean by the use of its own janitorial service, and it is understood
and agreed that no part of said janitorial cost shall be borne by the Landlord.
Any and all personnel employed by Tenant to perform janitorial services shall be
bonded, and at Landlord's request, Tenant will furnish Landlord with
satisfactory evidence of its compliance with this provision.
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ARTICLE XXXIV
PARKING
34.1. The Tenant shall have the right to use in common with others the
parking areas adjacent to the Demised Premises as shown on Exhibit B.
The Landlord shall have the right to designate employee parking areas in which
the employees of this Tenant shall be required to park, as shown on Exhibit B.
The Tenant, its employees and agents, shall be prohibited from parking on the
area shown as "Patient/Customer Parking" on Exhibit B.
ARTICLE XXXV
SIGNAGE
35.1. The Tenant shall have the right to add its name to the signage on
Xxxxxxx Street and shall contract Xxxx Xxxxxxxxxxx Signs to do so. The Tenant
shall also have the right to place a sign on the outside of the Building next to
the entrance and in the lobby of the Building. Such signage will conform to the
architectural decor of the Building and will comply to all local sign
ordinances, and is subject to the Landlord's written approval. Tenant will be
fully responsible for all costs and liability pertaining to its erection,
maintenance and removal of such signs.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day and year first above written.
Signed, sealed and delivered in the presence of:
LANDLORD:
FRENCH'S MILL ASSOCIATES II, LLP
By: /s/ W. Xxxxx Xxxxxxxx
---------------------
W. XXXXX XXXXXXXX
Managing Partner
TENANT:
OPTICARE EYE HEALTH CENTERS, INC.
By: /s/ Xxxx Xxxxxxxxx
----------------------
XXXX XXXXXXXXX
President
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Rider I
ADJUSTMENT OF FIXED MINIMUM RENT
The fixed minimum annual rental shall be adjusted after the first five
(5) years of the leasehold term and every five (5) years thereafter, including
any option term exercised by Tenant, based upon the fair market value appraisal
of the rent on each adjustment date in accordance with the procedure hereinafter
set forth. In no case shall the increase in rent for each adjustment period be
less than a fifteen (15%) percent increase over the then existing rent, nor
shall the increase be more than thirty (30%) percent of the then existing rent.
Said adjustment shall be determined as follows:
Prior to the expiration of ninety (90) days from the commencement of
each adjustment period, the Tenant shall deliver to the Landlord a short form
appraisal report prepared by a recognized real estate appraiser who shall have
the designation MAI (Member American Institute of Real Estate Appraisers) Said
report shall contain the fair market value rent for the demised premises,
reduced to a square footage rental which shall be multiplied by 3,216 square
feet to arrive at the adjusted annual rent
If the Landlord does not wish to accept said adjusted rent as set forth
in said appraisal report, the Landlord shall have thirty (30) days to obtain his
own real estate appraisal prepared by an MAI on the same basis as set forth
hereinabove.
If the two appraisals are within ten (10%) percent, then they shall be
averaged and that figure shall constitute the adjusted rent. If the two
appraisals are not within ten (10%) percent, then the two appraisers shall meet
and if they can not agree upon a fair rental value, they shall appoint a third
appraiser who shall have thirty (30) days to prepare an appraisal report and the
fair market value in said report shall be binding upon the parties thereto and
shall constitute the adjusted rent, unless said third appraisal is less than the
lower appraisal or higher than the higher appraisal. In such event, it shall be
added to the other two and the adjusted rent shall be the average of all three.
In the event that the two appraisers can not agree upon a third
appraiser, the selection shall be made by the then current President of the
Connecticut Chapter of the Society of Real Estate Appraisers.
In the event that said appraisal procedure shall not be complete, for
any reason, prior to the commencement of any adjustment period, then, in that
event, the pre-existing rent shall be paid until the procedure is complete and
the adjusted portion of the rent shall be paid retroactively to the commencement
of the adjustment period. Said retroactive payment shall be made within ten (10)
days of the resolution of the rent adjustment procedure.
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Notwithstanding anything to be contrary, in the event that either party
does not provide an appraisal report within the time periods set forth, then, in
that event, the rent. for the adjustment period for which the reports are
required shall be as set forth in whichever appraisal report has been provided.
it is understood that time is of the essence in providing said reports.
It is agreed that each party shall pay for: its own appraisal report
and in the event a third appraisal is necessary, the costs thereof shall be
borne equally.
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EXHIBIT D
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, and elevators of
the Building are limited to ingress to and egress from the tenants' premises for
the tenants and their employees, licensees and invitees, and no tenant shall
use, or permit the use of, the entrances, corridors or elevators for any other
purpose. No tenant shall invite to the tenant's premises, or permit the visit
of, persons in such numbers or under such conditions as to interfere with the
use and enjoyment of any of the plazas, entrances, corridors, elevators and
other facilities of the Building by other tenants. Fire exits and stairways are
for emergency use only, and they shall not be used for any other purpose by the
tenants, their employees, licensees or invitees. No tenant shall encumber or
obstruct or permit the encumbrance or obstruction of any of the sidewalks,
plazas, entrances, corridors, elevators, tire exits or stairways of the
Building. The Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally.
2. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or the employees, licensees or invitees of the
tenant, shall be paid by such tenant.
3. No awning or other projection over or around the windows and doors
shall be installed by any tenant, and only such window blinds as are permitted
by the Landlord shall be used in a tenant's premises. Any floor covering shall
be laid in tenant's premises only in a manner approved by the Landlord.
4. No machinery or mechanical equipment other than ordinary portable
business machines, may be installed or operated in any tenant's premises without
Landlord's prior written consent, and in no case (even where the same are of a
type so accepted or as so consented to by the Landlord) shall any machines or
mechanical equipment be so placed or operated as to disturb other tenants; but
machines and mechanical equipment which may be permitted to be installed and
used in a tenant's premises shall be so equipped, installed and maintained by
such tenant as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
5. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building services or the proper and economic
heating, cleaning or other servicing of the Building or the premises, or the use
or enjoyment by any other tenant of any of the premises, nor shall there be
installed by any tenant any ventilating, air conditioning, electrical or other
equipment of any kind, which, in the judgment of the Landlord, might cause any
such
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impairment or interference. No dangerous, inflammable, combustible or
explosive object or material shall be brought into the Building by any tenant or
with the permission of any tenant
6. Hand trucks not equipped with rubber tires and side guards shall not
be used within the Building.
7. There shall be no smoking permitted within the Building.
8. The Landlord reserves the right to rescind, alter or waiver any rule
or regulation at any time prescribed for the Building, when in its judgment it
deems it necessary, desirable or proper for its best interest and for the best
interest of the tenant, and no alteration or waiver of any rule or regulation in
favor of one tenant shall operate as an alteration or waiver in favor of any
other tenant. The Landlord shall not be responsible to any tenant for the
nonobservance or violation by any other tenant of any of the rules and
regulations at any time prescribed for the Building.
