LEASE AGREEMENT
DATED: 9/1 , 1995
BETWEEN
O.C. REALTY ASSOCIATES LIMITED PARTNERSHIP
(LANDLORD)
AND
OPTICARE EYE HEALTH CENTER, P.C. - WATERBURY
(TENANT)
PROPERTY:
00 XXXX XXXX XXXX
XXX XXXXXXX, XXXXXXXXXXX
INDEX
PAGE
Demised Premises, Term, Option.................................1
Article I Rent...........................................................2
Article II Taxes, Assessments and Utilities...............................3
Article III Insurance......................................................4
Article IV Condition of Premises..........................................5
Article V Care of Premises...............................................5
Article VI Alterations (With Related Insurance Provisions)................6
Article VII Indemnity to Landlord..........................................7
Article VIII Broker.........................................................8
Article IX Compliance with Governmental Requirements......................8
Article X Assignment, Etc., of Lease.....................................9
Article XI Loss or Destruction by Fire or Otherwise.......................9
Article XII Condemnation..................................................10
Article XIII Termination of Lease for Nonpayment...........................11
Article XIV Termination of Lease Upon Certain Defaults....................12
Article XV Re-Entry......................................................12
Article XVI Reletting and Damages.........................................13
Article XVII Waiver of Right of Redemption.................................14
Article XVIII Recovery of "Additional Rent".................................14
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Article XIX Mechanic's Liens.............................................15
Article XX Remedial Rights..............................................15
Article XXI Non-Waiver Provisions........................................15
Article XXII Title to Improvements........................................16
Article XXIII Non-Liability of Landlord....................................16
Article XXIV Subordination................................................17
Article XXV Surrender at End of Term.....................................18
Article XXVI Covenants and Conditions.....................................18
Article XXVII Quiet Enjoyment..............................................18
Article XXVIII Notices......................................................19
Article XXIX Interpretation of Term "Landlord"............................20
Article XXX Completeness of Instrument...................................20
Article XXXI Binding Successors in Interest...............................20
SCHEDULE A - Description of Premises
THIS INDENTURE, made this 1st day of September 1995, by and between
O.C. REALTY ASSOCIATES LIMITED PARTNERSHIP, a Connecticut limited partnership
having a principal place of business in the City of Waterbury, County of New
Haven and State of Connecticut (hereinafter called "Landlord"), and OPTICARE EYE
HEALTH CENTER, P.C. - WATERBURY, a Connecticut corporation having a principal
place of business in the said City of Waterbury, County of New Haven and State
of Connecticut (hereinafter called "Tenant").
W I T N E S S E T H :
That the Landlord hereby leases and demises to the Tenant, and the
Tenant hereby hires and takes from the Landlord, upon the terms and conditions
hereinafter set forth, the entire building located at 00 Xxxx Xxxx Xxxx, Xxx
Xxxxxxx, Xxxxxxxxxxx, which property is more particularly bounded and described
as set forth in Schedule A attached hereto and made a part hereof;
For the term of fifteen (15) years commencing September 1, 1995, and
terminating on August 31, 2010, to be used and occupied for the practice of
medicine and optometry and incidental activities such as the sale of glasses and
corrective lenses offices and no other uses. Furthermore, it shall be Tenant's
sole obligation to obtain all licenses, permits and franchises required by it
for its use of the Demised Premises and no failure to obtain the same, nor any
revocation thereof by any governmental authority of any such licenses, permits
or franchises heretofore or hereafter granted by any such governmental authority
shall in any manner affect this Lease or diminish the amount of rent or any
other payments or charges payable by Tenant hereunder.
Tenant shall have the option to extend this Lease for two (2)
additional terms of ten (10) years each, on the same terms and conditions as
herein provided. Said option shall be exercised by written notice from Tenant to
Landlord at least twelve (12) months prior to the expiration of the then
existing leasehold term. If Tenant holds over without having exercised said
option, this Lease shall be automatically extended for one (1) year, and
thereafter from year to year upon the same terms, subject in each instance to
adjustment of rental as hereinafter provided, unless and until either party
shall have terminated this Lease by giving to the other party written notice of
termination at least thirty (30) days before the expiration of the first or any
subsequent one year period.
And the Landlord and Tenant hereby agree upon the following terms,
covenants, conditions, restrictions and limitations affecting the said demised
premises, to wit:
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ARTICLE I
RENT
Section 1. During the first five (5) years of the leasehold term, the
Tenant shall pay a minimum annual rental to the Landlord of FIFTY THOUSAND FOUR
HUNDRED & 00/100ths DOLLARS ($50,400.00) payable in equal monthly installments
of FOUR THOUSAND TWO HUNDRED & 00/100ths DOLLARS ($4,200.00) each, on the first
day of each month in advance, and shall pay the "additional rent" hereinafter
provided for at the times and in the manner hereinafter provided for. Said rent,
unless and until further written notice, shall be paid to "O.C. Realty
Associates Limited Partnership", 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
All other charges or obligations of the Tenant hereunder other than the
payment of minimum annual rent shall be considered "additional rent".
Section 2. The 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 percent (15%) increase over the then existing
rent, nor shall the increase be more than thirty percent (30%) over 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, Tenant shall deliver to 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.
If Landlord does not wish to accept said adjusted rent as set forth in
said appraisal report, Landlord shall have thirty (30) days to obtain his own
real estate appraisal prepared by an MAI appraiser on the same basis as set
forth hereinabove.
If the two appraisals are within ten percent (10%), then the appraisals
shall be averaged and the average shall constitute the adjusted rent.
If the two appraisals are not within ten percent (10%), then the two
appraisers shall meet and if such appraisers cannot agree upon a fair rental
value, such appraisers shall appoint a third MAI appraiser who shall have thirty
(30) days to prepare an appraisal report and the fair market
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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 cannot agree upon a third
appraiser, the selection shall be made by the American Arbitration Association.
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.
Notwithstanding anything to the 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.
ARTICLE II
TAXES, ASSESSMENTS AND UTILITIES
Section 1. The Tenant shall bear, pay and discharge punctually as and
when the same shall become due and payable throughout the term of this lease all
such taxes, duties, assessments, governmental impositions and also all such
water rates, rents or charges (whether imposed annually or measured according to
quantity of water consumed, including all charges for installing and repairing
water meters now or hereafter required to be installed in any part of the
demised premises), as shall or may during the terms of this Lease be laid,
levied, assessed or imposed upon, or become due or payable, or liens upon or
chargeable, against the demised premises or any part hereof or the sidewalks or
streets adjoining or in front thereof, or against the owner or occupant of the
demised premises or both, save and except that as to the fiscal tax years of
which part of the first year and part of the last year of the term hereby
granted are parts, the Tenant shall bear and pay only that proportionate part of
the taxes for each of said fiscal tax years which the period of the term
hereunder occurred during each of the said fiscal tax years bears to an entire
year.
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Section 2. The Tenant shall have the right to contest, or review, by
legal proceedings, or in such other manner as it may deem suitable (which, if
instituted, shall be conducted promptly, in its own name or the name of the
Landlord, or both, but at the Tenant's own expense and free of all expense to
the Landlord), any tax, duty, assessment, governmental imposition, water rates,
rent, or charges, above referred to, upon condition that within the time limited
by this Lease for the payment of such tax, assessment, water rents, or other
charges, the same are paid.
Section 3. The Tenant shall be solely responsible for the cost of all
utilities, including heat, air conditioning, light, power, gas, water and the
heating of hot water.
ARTICLE III
INSURANCE
Section 1. The Tenant, at its own expense and cost, will keep all
buildings on the demised premises (exclusive of excavations and foundations) and
all fixtures (except such trade fixtures as the Tenant, pursuant to the terms of
this Lease, has the right to remove) insured against loss or damage from the
perils insured against under a standard policy issued in the State of
Connecticut for fire and extended coverage insurance, for the full insurable
value thereof, except for a deductible amount selected by Tenant for which
amount Tenant shall be responsible directly for payment for repairs not subject
to insurance because of the aforesaid deductible, in companies duly authorized
by the State of Connecticut to do business in said state, and which the Landlord
agrees to approve unless it is reasonable to withhold such approval. All such
insurance shall be in the name of the Landlord and the Tenant, and, if so
required by the Landlord, also in the name of the holder or holders of any
mortgage or mortgages on the demised premises as their respective interests may
appear, and the policies therefor shall be subject to the approval of the
Landlord as to terms hereof (provided, however, that the Landlord shall not be
entitled to object to the inclusion or exclusion of any deductible provision or
other terms or provisions if the inclusion or exclusion of such terms or
provisions be required by the laws of the State of Connecticut). A Certificate
of Insurance shall be delivered to the Landlord, and the loss, if any, shall be
made payable to the Landlord, Tenant, or mortgagee, as their interests may
appear. The Tenant shall pay the premiums upon all such policies and all other
charges incidental to effecting such insurance. Ten (10) days' written notice of
cancellation or reduction of insurance shall be given to the Landlord. On
default in maintaining the aforesaid insurance, the Landlord may procure its own
policies of insurance and pay the premiums thereon, and the amount of such
payment and expense shall be repaid by the Tenant on demand or may be added to
and become additional rent, with the rights and remedies for the collection and
enforcement thereof in this Lease provided.
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Landlord and Tenant waive rights to recover (except as otherwise
provided in this Section regarding the deductible) from each other for any
damage or loss from the perils insured against under a standard fire and
extended coverage policy issued in the State of Connecticut, even though such
damage or loss results from the negligence of either Landlord or Tenant.
ARTICLE IV
CONDITION OF PREMISES
Section 1. The Tenant shall take the premises in "as is" condition.
ARTICLE V
CARE OF PREMISES
Section 1. Throughout the term of this lease, the Tenant shall, at its
own cost and expense, take good care of and keep in good order and repair,
inside and out, all buildings and structures which are now or shall hereafter be
constructed on or appurtenant to the demised premises and the roofs, walls and
foundations thereof, and all fixtures and appurtenances therein and thereto and
all equipment thereof, including, but not being limited to, all HVAC, engines,
boilers, elevators, machinery, pipes, plumbing, wiring, gas, steam and
electrical fittings, sidewalks, asphalt, parking, water, sewer and gas
connections, heating equipment, and all other fixtures, machinery and equipment
now or hereafter belonging to or connected with the demised premises or used in
their operation, and all alterations, additions and improvements thereto, make
all repairs, replacements and renewals, in and about the same, inside and
outside, ordinary and extraordinary, structural or otherwise, necessary to
preserve the demised premises in good order and condition, including such as may
be necessary because of conditions existing at the time of the commencement of
the term of this Lease, which repairs, replacements and renewals shall be in
quality and class at least equal to that of the original work; promptly pay the
expenses of such repairs, replacements and renewals; suffer no waste or injury
and keep the sidewalk and curb in good repair and free from snow, ice, dirt and
rubbish; permit at reasonable intervals during the usual business hours the
Landlord and representatives of the Landlord to enter the demised premises for
the purpose of inspection and to exhibit them for the purpose of sale, rental or
mortgaging; suffer the Landlord to make (in the Landlord's discretion, although
the Landlord shall be under no obligation to do so) repairs or improvements to
any and all parts of any building on the demised premises and to comply with all
orders of governmental authority applicable to said buildings or to any occupant
thereof if the Tenant be in default, after written notice as hereinafter
mentioned, in respect to any of said matters; permit during the year next prior
to the expiration of the term the usual notices of "For Sale" and "To Let" to be
placed and to remain unmolested in a conspicuous place or places upon the
exterior of the demised
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premises, but not on the windows and doors, and repair at or before the end of
the term all injury done by the installation or removal of trade fixtures,
furniture, machinery and other property.
Without intending to limit the generality of the foregoing, it being
agreed that the obligations and undertakings of the Tenant, as provided in this
Section 1 of ARTICLE V, shall be and be deemed to be absolute, it is understood
that if the Tenant, after the use of due diligence and the expenditure of all
reasonable efforts, be delayed in performing any of the obligations set forth in
this Section 1 of ARTICLE V by reason of governmental preemption, prohibition,
limitation or restriction in connection with any national emergency declared by
the President of the United States, or in connection with any rule, order or
regulation published by any department or subdivision thereof of any
governmental agency, then (but only while such governmental preemption,
prohibition, limitation or restriction continues in force) the time for the
Tenant to perform its obligations under this Section 1 of ARTICLE V shall be
extended until a reasonable time after any such reason shall have ceased to
exist.
Section 2. The Tenant shall not obstruct the street or sidewalk
adjacent to the demised premises, nor do or suffer anything to be done upon the
demised premises which will be liable to cause structural injury to any building
then upon the premises; nor permit the accumulation of waste or refuse matter.
ARTICLE VI
ALTERATIONS (WITH RELATED INSURANCE PROVISIONS)
Section 1. The Tenant shall not install or incorporate in any building
existing at any time upon the demised premises any materials, articles or
fixtures purchased under conditional sale or which may be subject to chattel
mortgage. The foregoing shall not apply to such chattels or articles of
personalty which are neither part of the realty nor attached to the freehold.
Section 2. In the event of the Tenant making any construction or
alteration or addition or improvement costing Two Thousand Five Hundred and
00/100ths ($2,500.00) Dollars, or more, the Tenant shall cause plans with
details and specifications covering the proposed construction, alteration,
addition or improvement to be prepared and submitted to the Landlord for its
approval, and the Landlord agrees to approve said plans and specifications
unless it is reasonable to withhold such approval; and the Tenant shall also
cause said plans with details and specifications to be approved by the
governmental authorities having jurisdiction thereof, all of such approvals to
be obtained before any work is commenced and such submission to, and approval
by, the Landlord and public authorities shall likewise be required as to any
amendments to such plans with details and specifications. The Tenant agrees that
it will do and perform all of this work, or cause the same to be done and
performed, in a good and
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workmanlike manner, and will prosecute the said work to completion with due
diligence. Upon the completion of any construction, alterations, additions or
improvements, the Tenant shall furnish to the Landlord certificates of
compliance with all requirements of all governmental authorities having
jurisdiction and of the Board of Fire Underwriters having jurisdiction, if such
certificates are commonly issued.
Section 3. In the event of the Tenant making any construction or
alteration or addition or improvement on the premises, the Tenant shall deliver
to the Landlord a Certificate of Insurance of casualty or liability insurance,
but in which, however, the Landlord may be named as an additional party insured
indemnifying and saving harmless the Landlord from all loss or damage by reason
of any injury or alleged injury to any person or persons or property caused by
or on account of or arising out of ownership, maintenance, or use of the demised
premises or arising out of the risks of such building operations and from any
and all liability in connection therewith, which said policy shall be in the
minimum sum of Five Million Dollars ($5,000,000.00) combined single limit and
property damage in respect to any one occurrence. Such policy of insurance shall
be in a company duly authorized by the State of Connecticut to do business in
the said State, which the Landlord agrees to approve unless it is reasonable to
withhold approval.
ARTICLE VII
INDEMNITY TO LANDLORD
Section 1. The Tenant shall indemnify, defend and save harmless the
Landlord against any and all claims arising from the conduct or management of or
from any work or thing whatsoever done in or about the demised premises or the
equipment therein during said term, or arising out of the occupation of the
demised premises or the streets, vaults, sidewalks and walls adjacent thereto,
or the use or maintenance of boilers and elevators therein, or arising from any
act or negligence of the Tenant or any of its agents, servants or employees, or
arising from any accident, injury or damage whatsoever, however caused, to any
person or persons, or to the property of any person, persons, corporation or
corporations, occurring during said term on, in or about the demised premises,
or the sidewalks, streets, driveways and vaults, if any, adjacent thereto, and
from and against all costs, attorneys' fees, expenses and liabilities incurred
in or about any such claim or any action or proceeding brought thereon, except
for the negligence of the Landlord, his agents, servants or employees, and
Landlord's Workmen's Compensation claims by Landlord's employees. In case any
action or proceeding be brought against the Landlord by reason of any such
claim, except as excluded above, the Tenant, on notice from the Landlord, shall
resist or defend such action or proceeding. It is further agreed and understood
that the Tenant shall at its own cost and expense, for the further protection of
the Landlord, cause to be delivered to the Landlord a Certificate of insurance
(in which, however, the Tenant
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may be named as an additional party insured, provided such policy contains a
provision or an endorsement to the effect that the Landlord's rights and
interests in or under such policy shall in nowise be affected by any acts of
omission or commission by the Tenant) issued by an insurance company, if such
policy is obtainable, satisfactory to the Landlord, and which the Landlord
agrees to approve unless it is reasonable to withhold approval, indemnifying the
Landlord against any and all of the claims and liabilities in this Article
provided for, except as excluded above, in the minimum sum of Five Million
Dollars ($5,000,000.00) combined single limit and property damage in respect to
any one occurrence.
When such policy of liability insurance shall be about to expire and
likewise when each renewal thereof shall be about to expire, the Tenant shall,
at least ten (10) days before the expiration date, cause to be delivered to the
Landlord a new Certificate. In the event of the failure of the Tenant to provide
such liability insurance or any renewal thereof, or to pay the premium thereon
so as to keep the same valid, the Landlord may either provide the insurance
itself, or may itself pay the premium on the insurance effected by the Tenant
and, in either case, all sums paid or the obligation to pay which has been
incurred by the Landlord may be recovered by the Landlord from the Tenant as
"additional rent".
ARTICLE VIII
BROKER
Section 1. Each party acknowledges that it has dealt with no broker or
realtor in connection with this transaction. In the event that said
representation is not correct and a claim is made for a commission, then the
party who has in fact dealt with a real estate broker or realtor in connection
with this transaction shall indemnify the other for any claim for a commission.
ARTICLE IX
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS
Section 1. The Tenant shall at its own cost and expense Promptly
execute and comply with all laws, rules, orders, ordinances, regulations and
notices of violation at any time issued or in force applicable to the demised
premises or to the occupation thereof, made by or emanating from the village,
town, city, county, state and federal governments and each and every department,
bureau and official thereof having jurisdiction, it being the intention of the
parties hereto that the Tenant shall hereby assume the entire responsibility and
also fully relieve the Landlord from the responsibility and expense of executing
and complying with the laws, rules, orders, ordinances, regulations and notices
of violation.
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ARTICLE X
ASSIGNMENT, ETC., OF LEASE
Section 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. If
such request is reasonable, the Landlord, at his option, shall either:
(a) 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.
(b) 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; provided
that the Landlord shall only be entitled to exercise the option described in
this Section (b) in the case of an assignment or subletting of the entire
demised premises for the remaining term of this Lease and all renewals.
Section 2. In the event Landlord consents to an assignment or sublet by
the Tenant as set forth above:
(a) Tenant covenants and agrees that immediately upon entering
into said assignment or sublease, Tenant will deliver to the Landlord a true and
correct copy same;
(b) 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 such 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 XI
LOSS OR DESTRUCTION BY FIRE OR OTHERWISE
Section 1. Partial Destruction. In the event the building in which the
demised premises are located shall, during the term of this Lease, be partially
(but not substantially) destroyed or damaged by fire or other casualty, Tenant
shall give immediate notice thereof, in writing, to Landlord, and the Landlord
shall promptly repair and restore the premises within a reasonable time at his
own costs and expense. If the demised premises, or any part thereof, as a result
of
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said partial destruction of the demised premises or the building in which the
demised premises are located, shall be rendered untenantable for the purposes of
the use by Tenant contemplated in this Lease by fire or other casualty, rent
shall be accordingly abated pro rata from the date of such fire. In the event
that the Landlord fails to proceed with reconstruction of the premises, so that
the same remains unusable by the Tenant for his business purposes, within one
hundred twenty (120) days after such partial destruction, this Lease may be
terminated at Tenant's election.
Section 2. Substantial destruction or total destruction. If the
premises shall, during the term of this Lease, be substantially or totally
destroyed or damaged by fire or other casualty, (which shall be defined as more
than sixty (60%) percent destroyed), whether or not covered by insurance, the
Landlord may elect to repair or rebuild, or not to do so, in which latter event
this Lease shall terminate.
(a) In the event the Landlord elects to rebuild, he shall
notify the Tenant of the same within thirty (30) days after such destruction or
damage, and he shall complete said rebuilding within six (6) months thereafter;
and, during the period until the rebuilding is completed, the rent shall be
adjusted so as to relieve the Tenant from any payment of rent for any portion of
the demised premises of which the Tenant shall have lost the use of as a result
of such damage, during the period of such loss of use.
(b) In the event the Landlord elects not to repair or rebuild,
or fails to notify the Tenant of his election to do so within thirty (30) days
of such damage, this Lease may be terminated by either the Landlord or the
Tenant, upon giving thirty (30) days written notice thereof to the other, and in
the event of such termination, no rent shall be payable hereunder beyond the
date of such extensive damage.
ARTICLE XII
CONDEMNATION
Section 1. If during the term of this Lease there is a total
condemnation (as hereinafter defined) of the demised premises, the Tenant shall
not be entitled to any apportionment of the award for the taking of the fee, but
shall be entitled to damages for moving costs, and personal property loss.
In the event of said total condemnation of the demised premises, or in
the event of a negotiated sale to the condemning authority in lieu of
condemnation, then the term of this lease shall cease and terminate as of the
date of said taking or sale.
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In the event of a partial condemnation (as hereinafter defined) of the
demised premises, the Tenant shall not be entitled to any apportionment of the
award for the taking of the fee, but shall be entitled to damages for moving
costs and personal property loss.
After such partial taking, the yearly minimum rental shall be reduced
by a percentage equal to the percentage of the total building area so taken and
not replaced but all of the terms and covenants of this lease shall remain in
full force and effect.
As used herein, a partial condemnation shall mean a taking of the
demised premises by governmental authority or public or private corporation
authorized to take interests in land by condemnation, which taking diminishes
the square footage of the building of the demised premises by less than thirty
percent (30%).
As used herein, a total condemnation shall mean a taking as described
above, which taking diminishes the square footage of the building of the demised
premises by thirty percent (30%) or more.
ARTICLE XIII
TERMINATION OF LEASE FOR NONPAYMENT
Section 1. If the Tenant shall make default in the payment of any
monthly installment of the annual rent reserved hereunder on any day fixed for
the payment of any such installment or shall make default in the payment of any
item of additional rent herein provided for or in making any other payment
herein provided for, the Landlord may forthwith give to the Tenant ten (10)
days' written notice of intention to end the term of this Lease, specifying the
sums unpaid, and thereupon at the expiration of five (5) days from the date of
receipt by Tenant of said written notice, if said monies shall not meanwhile
have been paid, the term under this Lease the leasehold estate hereby granted
shall expire as fully and completely as if that day were the date herein
definitely fixed for the expiration of the term, and the Tenant shall then and
thereupon quit and surrender the demised premises to the Landlord. Nothing
herein contained, however, shall be construed to prevent the Landlord,
immediately upon a default, from forthwith instituting summary proceedings in
any court having jurisdiction to recover possession of the demised premises upon
the ground of nonpayment of rent, but in any such summary proceedings instituted
for nonpayment of rent, Tenant, at any time prior to the issuance of a warrant
of dispossess, shall be entitled to have such proceedings discontinued upon
payment to the Landlord (or the petitioner in such proceedings) of all rent in
arrears, with interest thereon, together with the costs and disbursements of
such proceedings, provided that at the time of such payment this lease shall not
have terminated or expired in accordance with any of the provisions of said
lease.
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ARTICLE XIV
TERMINATION OF LEASE UPON CERTAIN DEFAULTS
Section 1. If the Tenant should be adjudicated a bankrupt, or make a
general assignment for the benefit of creditors, or file a voluntary petition in
bankruptcy, or for an arrangement or for reorganization, or take the benefit of
any insolvency act or statute, or if a receiver or trustee be appointed for its
property in or under any insolvency, or in connection with the liquidation
(voluntary or involuntary) of the Tenant, and such trustee or receiver be not
dismissed within sixty (60) days after the appointment of such trustee or
receiver, or if an involuntary petition in bankruptcy or for an arrangement or
for reorganization be filed against the Tenant (unless the petition be
thereafter dismissed), or if a warrant of attachment be issued or a judgment
recovered against the Tenant or such owner of the leasehold estate and the same
shall not be discharged by payment or by filing of bond or undertaking within
sixty (60) days after such attachment or judgment shall have been rendered, or
if a receiver be appointed for the property of the Tenant or such owner of the
leasehold estate and such receivership be not vacated within sixty (60) days, or
if this lease of the leasehold estate created hereunder be transferred or pass
to or revolve upon any other person or corporation, except as herein permitted,
and the rent is not paid, or if the Tenant shall make a default in fulfilling
any of the terms, conditions or covenants of this Lease (other than the
covenants for payment of rent, additional rent or other monies as set forth in
the preceding Article), or if the demised premises be abandoned or deserted, the
Landlord may give to the Tenant fifteen (15) days' written notice of intention
to end the term of this Lease, specifying the cause therefor, and thereupon at
the expiration of ten (10) days from the date of the receipt by the Tenant of
said written notice, if said default shall continue or if said cause or
condition which was the basis of said notice shall continue to exist, the term
under this Lease and the leasehold estate hereby granted shall expire as fully
and completely as if that day were the date herein definitely fixed for the
expiration of the term, and the Tenant shall then and thereupon quit and
surrender the demised premises to the Landlord.
ARTICLE XV
RE-ENTRY
Section 1. If the Tenant shall make default in the payment of the rent
reserved hereunder or any item of additional rent herein mentioned, or any part
of either, or in making any other payment herein provided for, as a result of
which default the leasehold estate hereby granted shall expire as provided in
ARTICLE XIII of this lease, or if this lease shall expire as provided in either
of the two preceding Articles hereof, the Landlord may immediately or at any
time thereafter re-enter the demised premises and remove all or any persons and
all or any property therefrom, either by summary proceedings or by any suitable
action or proceeding at law or in
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equity or by force or otherwise, without being liable to indictment, prosecution
or damages therefor, and repossess and enjoy said premises together with all
additions, alterations and improvements. The words "re-enter" and "re-entry" as
used in this lease are not restricted to their technical legal meaning.
ARTICLE XVI
RELETTING AND DAMAGES
Section 1. In the event of the breach of any term, covenant, agreement,
condition or undertaking on the part of the Tenant to be respected, complied
with or performed hereunder, or in the event that the demised premises or any
part hereof becomes vacant or are or is abandoned, or in the event that the
Tenant is evicted by summary proceedings or otherwise, whether the Landlord
re-enters in or for such event or not, or in the event that the relation of
Landlord and Tenant shall cease or terminate by reason of the re-entry of the
Landlord under the terms and conditions contained in this lease or by the
eviction or ejectment of the Tenant by summary proceedings or otherwise, or in
the event that the Landlord terminates this lease by reason of any nonpayment of
rent or other breach of the covenants of said Lease by the Tenant at any time
(whether pursuant to the law or to the provisions of this lease), the Landlord
shall, in addition to any and all other rights and remedies which it may have,
have the rights and remedies following, and the Tenant shall, in addition to all
other obligations and liability, be subject to the obligations, liability and
duties following:
(a) The Tenant shall, nevertheless, remain and be liable to
the Landlord for and on account of all arrearages of rent, including both the
fixed rent and the additional rent, and for the breach of all other agreements
and conditions imposed by force of this lease, and shall also be liable to pay,
and shall pay, to the Landlord, as damages for the breach of this lease on the
days originally fixed in this lease for payment thereof during the remainder of
the term of this lease, sums of money equivalent to what would be the fixed rent
and additional rent and other monies payable by the Tenant if this lease were
still continuing in force, less, however, the net avails (ascertained as
provided in succeeding subparagraph (b) of this ARTICLE XVI), if any, or any
reletting of the premises by the Landlord; and the Landlord shall be entitled to
any and all appropriate actions at law or in equity for the enforcement of
Tenant's liability and obligations hereunder, and shall be entitled to recover
the said damages either in one action or in successive actions from time to
time, each brought to recover one or more installments of damage theretofore
accrued, as the Landlord may desire.
(b) The Landlord shall be entitled, at its option, to repair
the demised premises, as would be reasonable and the product of an arm's length
agreement, the Tenant remaining liable and responsible for the cost and payment
of same; and the Landlord may, at its
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option, with or without causing any such repairs, relet the said demised
premises or portions thereof, from time to time, as opportunity may offer and as
Landlord may deem expedient, to any person or persons, firm or corporation and
for any purpose deemed by it suitable, for such rental as it deems fit, and for
any period equal or greater than or less than the remainder of the demised term,
and to receive and apply the rents so received to the cost of re-entry, repairs,
redecorating, payment of broker's commission in connection with the obtaining of
such new tenant, management, costs and counsel fees incurred by the Landlord in
connection with any of the foregoing; and then to apply the balance ("net
avails"), in the Landlord's discretion, on account of the obligations of the
Tenant for rent theretofore accrued and thereafter to accrue hereunder or for
damages occasioned by breach of any covenants and conditions herein provided to
be performed or observed on the part of the Tenant; provided, however, that in
no case shall the Tenant be entitled to any surplus remaining as the result of
any such reletting, and provided further that the Landlord shall not be required
to relet the same, and that the Tenant's obligations hereunder (including its
obligation to pay the rent herein reserved) shall not be affected or diminished
by reason of any failure on the part of the Landlord to relet said premises.
ARTICLE XVII
WAIVER OF RIGHT OF REDEMPTION
Section 1. The Tenant hereby expressly waives any and all right of
redemption which it may have under statute now in effect or hereafter enacted,
or any rule of law now in effect or hereafter promulgated or otherwise, in case
it shall be dispossessed or removed from the premises by judgment or warranty of
any court or judge, or in the event that the term of this lease shall be
shortened, abbreviated or limited by nonpayment of rent, additional rent or any
other monies, or by notice given by the Landlord as herein authorized.
ARTICLE XVIII
RECOVERY OF "ADDITIONAL RENT"
Section 1. If the Tenant shall make default in performance of any
covenant herein contained, whether calling for the payment of monies or the
doing of an act, the Landlord may immediately or at any time thereafter, after
fifteen (15) days written notice, pay such monies or do such act for account, of
the Tenant. Any amount paid or expense incurred by the Landlord by reason of the
failure of the Tenant to comply with any provision of this lease, shall be
deemed to be "additional rent" for the demised premises and shall be due and
payable by the Tenant to the Landlord on the first day of the next calendar
month, or at the option of the Landlord on the first day of any succeeding
month, or at the further option of the Landlord the same may be recovered by the
Landlord after the expiration of the term.
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ARTICLE XIX
MECHANIC'S LIENS
Section 1. The Tenant shall have no power to do any act, or to make any
contract, that may create, or be the foundation for, any lien upon the present,
or other, estate, or reversion, of the Landlord in the demised premises, or upon
any of the buildings, or improvements thereon.
Section 2. If a notice of mechanic's lien be filed against the demised
premises or the Landlord's interest therein, for, or purporting to be for, labor
or material alleged to have been furnished or to be furnished at the demised
premises to or for the Tenant or to or for someone claiming under the Tenant,
and if the Tenant shall fail to cause such lien to be discharged within
twenty-five (25) days after written notice, the Landlord may discharge or cause
the discharge of such lien by deposit or by bonding proceedings and the Landlord
may require the lienor to prosecute an appropriate claim to enforce such
lienor's claim, and if such lienor be successful the Landlord may, after written
notice to the Tenant, pay the amount of any judgment recovered on such claim.
Any amount paid or expense incurred by the Landlord as in this clause provided
(including surety company premiums on bond to discharge the lien) and any
expense incurred or sum of money paid by the Landlord in connection with the
defense of such action shall be paid by the Tenant to the Landlord and shall be
recoverable by the Landlord as "additional rent".
ARTICLE XX
REMEDIAL RIGHTS
Section 1. All remedies, rights and elections of the Landlord, which
are given by this lease, are in addition to and not in substitution for, nor
exclusive of, the rights of action and causes of action or other remedies that
may be available to it at law or in equity or under any present or future
statutes. In the event of a breach or threatened breach by the Tenant of any of
the covenants hereof, the Landlord shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity, as if specific remedies,
indemnity or reimbursement were not herein provided for.
ARTICLE XXI
NON-WAIVER PROVISIONS
Section 1. The failure of the Landlord to insist, in any one or more
instances, upon a strict performance of any of the covenants of this Lease, or
to exercise any option herein contained, shall not be construed as a waiver or a
relinquishment for the future of such covenant
-16-
or option, but the same shall continue and remain in full force and effect. The
receipt by the Landlord of rent or additional rent or any other sum of money,
with knowledge of the breach of any condition or covenant hereof, shall not be
deemed a waiver of such breach, and no waiver by the Landlord of any provision
hereof shall be deemed to have been made unless in writing and subscribed by the
Landlord.
Section 2. If this Lease be assigned, or if the demised premises or any
part hereof be underlet or occupied by anybody other than the Tenant, and if the
Tenant be in default in respect to any payment to be made by the Tenant
hereunder, the Landlord may collect rent or other monies from the assignee,
undertenant or occupant, and apply the net amount collected to any amounts due
hereunder, and no such collection shall be deemed to be a waiver of the covenant
herein against assignment nor to be an acceptance of the assignee, under tenant
or occupant as tenant, nor to be a release of the Tenant from the performance by
the Tenant of the covenants herein contained on the part of the Tenant.
ARTICLE XXII
TITLE TO IMPROVEMENTS
Section 1. All improvements, additions and alterations made by the
Tenant to or upon the demised premises, (except trade fixtures), shall when
made, at once be deemed to be attached to the freehold and become the property
of the Landlord and at the end or other expiration of the term shall be
surrendered to the Landlord.
Section 2. If after default in payment of rent or violation of any
other provision of this lease, or upon the expiration of this lease for any
cause, the Tenant moves out or is dispossessed than merchandise, prior to such
said removal, expiration of lease, and fails to remove any trade fixtures or
other property, other or prior to the issuance of the final order or execution
of the warrant, then and in that event, the said fixtures and property shall be
deemed abandoned by the said Tenant and shall become the property of the
Landlord.
ARTICLE XXIII
NON-LIABILITY OF LANDLORD
Section 1. The Landlord does not warrant that any governmental license
or licenses or permit or permits which may be required for any business to be
carried on by the Tenant in the demised premises will be granted, or if granted
will be continued in effect or renewed, and any failure to obtain such license
or any revocation thereof or failure to renew the same shall not release the
Tenant from the terms of this lease.
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Section 2. The Tenant has inspected the demised premises and the
surroundings and accepts the demised premises in their present condition without
any warranty or representation of any nature whatsoever on the part of the
Landlord; except that the Landlord warrants that the building has been erected
in accordance with the State and local building code and that the underground
mechanicals are in working condition.
Section 3. The Landlord shall not be liable for any action of the
elements, or any failure of water supply, gas, or electric current, or for
injury or damage to person or property caused by or resulting from steam, gas,
electricity, water, rain or snow, which may leak or flow from any part of the
demised premises, or from any pipes, appliances, or plumbing works of the same,
or from the street or sub-surface, or from any other place, or for interference
with light or other incorporeal hereditaments or easements, however caused,
except as provided in Section 2 and except for the negligence of Landlord, its
agents, servants, or employees; neither shall the Landlord be liable for any
defect in the building on the demised premises, whether latent or otherwise.
ARTICLE XXIV
SUBORDINATION
Section 1. This lease shall be subject 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.
This lease shall also be subject and subordinate at all times to any
and all other mortgages hereafter placed on or against the demised premises, and
to all renewals, modifications, consolidations, replacements and extensions
thereof.
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 request, and the Tenant hereby appoints the
Landlord the attorney-in-fact of the Tenant to execute and deliver any such
instrument or instruments for the Tenant, which said authority is hereby
declared to be coupled with an interest on the part of the Landlord and to be
irrevocable; provided, always, however, that this paragraph 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.
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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.
Section 2. If there shall be a default in the payment of either the
principal, or interest, of any mortgage, or mortgages, hereafter placed against
the demised premises and senior in lien and effect to this lease, the Tenant
shall have the right and privilege to pay such mortgage principal or interest so
in default, and, upon making such payment, the Tenant shall, in addition to any
other rights it may have at law or in equity, be entitled to deduct the amount
so paid from the installment, or installments, of rent then due, or thereafter
falling due, until the amount of such payment shall have been repaid therefrom
to the Tenant.
ARTICLE XXV
SURRENDER AT END OF TERM
Section 1. Upon the expiration of the term hereby demised, the Tenant
shall quit and surrender to the Landlord the demised premises with all
alterations, additions and improvements in good order and condition, reasonable
wear and damage by fire or casualty no matter how occurring and damage by the
elements excepted; except that the Tenant shall have the right to remove his
trade fixtures as described in Article XXII, Section 1.
ARTICLE XXVI
COVENANTS AND CONDITIONS
Section 1. Each and every covenant on the part of the Tenant shall be
deemed and construed to be and the same hereby is made a condition of the
Tenant's leasehold estate, and each and every condition herein contained shall
be deemed and construed to be and the same hereby is made a covenant which the
Tenant promises and agrees to perform.
ARTICLE XXVII
QUIET ENJOYMENT
Section 1. The Landlord covenants and agrees with the Tenant that if
and so long as the Tenant duly pays the rent reserved herein and duly performs
all of the terms, provisions, covenants, agreements and conditions hereof on the
part of the Tenant to be performed, the Tenant shall peaceably enjoy the demised
premises, subject, however, to the terms, provisions, covenants, agreements and
conditions of this lease and to all mortgages and encumbrances on or against the
demised premises prior in lien to this lease; but the Tenant covenants and
agrees that
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the Landlord shall not be liable for any breach of this covenant that may occur
after the Landlord shall have ceased to be the owner of the demised premises.
Said covenants of quiet enjoyment shall then become the responsibility of the
successor in interest to the Landlord herein.
ARTICLE XXVIII
NOTICES
Section 1. Any notice by the Landlord to the Tenant or by the Tenant to
the Landlord shall be given and shall be deemed to have been duly given if
either delivered personally or mailed by certified mail in any general or branch
post office, enclosed in a certified postpaid envelope addressed to the
respective addresses below stated, or (after an address for notices has been
duly changed as below provided) if so enclosed and mailed and addressed to the
changed address below provided for:
To the Landlord at: Attn. Xxxx Xxxxxxxxx
O.C. Realty Associates Limited Partnership
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
To the Tenant at: Attn.: Xxxx Xxxxxxxxx
Opticare Eye Health Center, P.C. - Waterbury
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Either party may at any time change the address for notices to such
party, by delivering or mailing as aforesaid a notice, at least five (5) days
previously, stating the change and setting forth the changed address.
Section 2. As soon as the actual commencement date of this lease has
been determined by the parties hereto, they shall execute a Notice of Lease
document which shall be recorded on the New Milford Land Records, which Notice
shall indicate the initial term and options of this Lease.
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ARTICLE XXIX
INTERPRETATION OF TERM "LANDLORD"
Section 1. The Tenant covenants and agrees that the term "Landlord", as
used in this lease, means only the owner for the time being of the demised
premises so that, in the event of any sale or other transfer of the demised
premises, the owner of said demised premises prior to such sale or other
transfer, shall be and hereby is entirely freed, relieved, released and
discharged of all covenants, agreements, liability and obligations of the
Landlord thereunder, and it shall be deemed and construed without further
agreement between the parties or between the parties and the purchaser or other
transferee of the demised premises that such purchaser or other transferee has
assumed and agreed to carry out any and all covenants, agreements and
obligations of the Landlord hereunder.
ARTICLE XXX
COMPLETENESS OF INSTRUMENT
Section 1. This lease embodies the entire agreement of the parties and
there are no other or collateral agreements or engagements in existence between
them or binding on either of them. The parties hereto agree that this lease
shall not be modified in any manner, except by a written instrument signed by
both parties hereto. The titles or headings of the several articles are inserted
for convenience of references, and this lease and the several parts thereof are
to be construed without reference to said titles or headings.
ARTICLE XXXI
BINDING SUCCESSORS IN INTEREST
Section 1. The terms and provisions of this lease shall be binding upon
and inure to the benefit of the successors and assigns of the respective parties
hereto, provided, however, that no assignment by or through the Tenant in
violation of the provisions hereinbefore contained shall vest any right in any
party claiming under any such assignment, and provided, further, that no
assignment or subletting made by the Tenant with the consent of the Landlord
shall relieve the Tenant from any liability to fulfill any obligation hereunder,
it being the intention of the parties hereto that the Tenant shall assume and be
liable to the Landlord for any and all acts or omissions of any and all
assignees, subtenants or undertenants.
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IN WITNESS WHEREOF, the parties hereto 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:
O.C. REALTY ASSOCIATES LIMITED
PARTNERSHIP
By: Opticare Eye Health Center,
P.C. - Waterbury,
Its General Partner
/s/
____________________________
By /s/ Xxxx Xxxxxxxxx
_________________________________
Xxxx Xxxxxxxxx,
Its President
/s/
_____________________________
TENANT:
OPTI CARE EYE HEALTH CENTER,
P.C. - WATERBURY
/s/
_____________________________
By /s/ Xxxx Xxxxxxxxx
__________________________________
Xxxx Xxxxxxxxx,
Its President
/s/
_____________________________
SCHEDULE A
(DESCRIPTION)
ALL THAT CERTAIN piece or parcel of land, together with the buildings thereon,
situate in the Town of New Milford, County of Litchfield and State of
Connecticut, at or near Park Lane, so-called, bounded and described as follows:
NORTHERLY: By Town Road, leading from New Milford to Washington, 135
feet, more or less;
EASTERLY: By land of Garetta D. and Xxxx X. Xxxxx, and by land of Xxxxx X.
Xxxx, 200 feet, more or less;
SOUTHERLY: By land of Xxxxxxxx X. Xxxxxx and C. Xxxxxx Xxxxxx, 150 feet,
more or less; and,
WESTERLY: By Xxxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx #00, 000 feet, more or less.
The above distances being running feet measured over the land and not intended
to be accurate.
