LEASE AGREEMENT
1. PARTIES:
---THIS AGREEMENT entered on this 19 day of September, 1996, by and between J &
M, S.E., a special partnership duly organized and existing under the Laws of the
Commonwealth of Puerto Rico (hereinafter referred to as "LESSOR"), represented
in this act by its ADMINISTRATIVE PARTNER, Xx. Xxxx Xxxxxx, of legal age,
married, and resident of Puerto Rico, and Xxxxxx-Field Express (Puerto Rico),
Inc., hereinafter referred to as "LESSEE"), a corporation duly organized and
existing under the Laws of Delaware and authorized to do business in the
Commonwealth of Puerto Rico, represented in this act by its VICE-PRESIDENT OF
FINANCE, Mr. Xxxx Xxxxxx of legal age, married, and resident of New
York----------------------------------------------------------------------------
2. PREMISES:
---LESSOR represents and warrants that it is the sole owner in fee simple
("pleno dominio") of a real property having 2 1 ,600 square feet approximately
of a building located on Puerto Rico Highway # 1, Rio Xxxxx Xxxx, Caguas, Puerto
Rico. The "Premises" have an area of 10,800 square feet in the first level
(approximately 3,600 square feet for office, and approximately 7,200 square feet
for store, laboratory and production area); and an area of 10,800 square feet
approximately in the second level, for office and store. The Premises Leased
hereunder include not less than twenty (20) exclusive parking spaces in front
and adjacent to the Premises.---------------------------------------------------
---The 10,800 square feet area in the first level consists of reception, office,
store, restroom, laboratory and production area. The second level has store
area, rest-room and office.-----------------------------------------------------
---Exhibit 1 is a correct drawing of the Premises and Exhibit 2 is a correct
drawing of the floor plan for both levels of the Premises.----------------------
3. PURPOSE OF LEASE:
---The Premises demised under this lease agreement are to be used by LESSEE for
LESEE's Corporate offices and facilities, store, sale and distribution of
medical equipment. Any change in the proposed use of the Premises will require
the prior written consent of LESSOR, which consent shall not be unreasonably
withheld, denied or delayed.----------------------------------------------------
---LESSEE shall not use the Premises for any illegal, immoral, or
ultra-hazardous activity, whether within of outside the scope of the business of
LESSEE.-------------------------------------------------------------------------
4. OCCUPANCY OF THE PREMISES, COMMENCEMENT OF LEASE TERM AND EXTENSION
OPTION:
---The LESSEE may use and occupy the Premises as of the date hereof. The
commencement of the lease term shall be October 8, 1996 (the "Lease
Commencements Date") and shall extend for a period of three (3) years from such
date (the "Term").--------------------------------------------------------------
---LESSEE shall have the two options to extend the Term of this Lease for (i) a
first option term of three (3) years and (ii) a second option term of four (4)
years (both the "Extended Terms") upon giving LESSOR written notice of its
intention to extend the Lease not later than six (6) months prior to the
expiration of the Term or the first
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Extended Term. In the event LESSEE exercises it option to extend the Lease, all
covenants, terms and conditions of the Lease shall remain unaltered and in full
force and effect, except as otherwise provided under Section 7 hereof.----------
---The LESSEE must pay the rent provided under Section 7 hereof from October 8,
1996 and thereon during the Term and Extended Term of this Lease Agreement,
subject to the terms and conditions contained herein.---------------------------
5. ASSIGNMENT AND SUBLETTING:
---LESSEE may assign this Lease in whole or in part, or sublet the Premises, or
any part thereof, or any right or privilege appurtenant thereto, to its parent
company, affiliates, subsidiaries, or to any entity surviving from a merger,
consolidation or other similar activity, or by operation of law, provided
however, that LESSEE may not assign this Lease or sublet the Premises to any
other third party without LESSOR's prior written consent, which consent shall
not be unreasonably withheld or delayed. Any unauthorized assignment or
subletting of the Premises shall be null and void and shall operate as a
termination of this Lease.------------------------------------------------------
---LESSEE shall not allow any person other than LESSEE, its employees, agents,
clients or invitees to occupy or use the Premises or any part thereof.----------
6. (INTENTIONALLY OMITTED)
7. RENT:
---LESSEE shall pay to LESSOR without notice, demand, or abatement, deduction or
set off, in lawful money of the United States of America, at the office of the
LESSOR, or at such other place in Puerto Rico as LESSOR may designate, fixed
monthly rent of NINE THOUSAND FIVE HUNDRED DOLLARS ($9,500.00) per month,
payable monthly in advance within the first (1st) five (5) days of each month,
during the Term and the first Extended Term of the Lease, commencing on October
8, 1996. The rent for the month of October 1996 shall be $ 7,125.--------------
---The monthly rent payment by LESSEE to LESSOR during the second Extended Term
of the Lease shall be ELEVEN THOUSAND DOLLARS ($11,000) per month, payable as
provided in the above stated paragraph.-----------------------------------------
The rent payment of $9,500 during the Term and first Extended Term, and $11,000
during the second Extended Term, is all the rent payable to LESSOR under this
Lease Agreement, and such rent payment includes any and all taxes and fees
related to the Premises. No additional fees or rent shall be paid by LESSEE
under this Lease Agreement.-----------------------------------------------------
8. ALTERATIONS AND ADDITIONS:
---LESSEE shall not, without LESSOR's prior written consent, which consent shall
not be unreasonably denied or delayed, make any structural alterations,
improvements, additional or utility installations in, on or about the Premises.
The terms "utility installations" shall include bus ducting, power panels,
fluorescent fixtures, conducts and wiring. As a condition to giving such
consent, LESSEE shall provide to LESSOR copies of the drawings or plans of the
proposed structural alterations, improvements, additions or utility
installations to be done; also, LESSOR may require that LESSEE agree to remove
any such alterations, improvements, additions or utility installations at the
expiration of the Term or Extended Terms and to restore the Premises to their
prior conditions and furthermore, may require or prescribe any other reasonable
condition or requirement which shall be set forth in the notice granting the
consent.------------------------------------------------------------------------
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---All alterations, improvements, additions and utility installations, which may
be made to or on Premises, to the extent that such alterations, improvements,
additions or utility installations are not removable by LESSEE, without damaging
the Premises, shall become the property of LESSOR and remain upon and be
surrendered with the Premises at the expiration of the Term. Notwithstanding the
provisions of this Paragraph, LESSEE's machinery and equipment, other than that
which is affixed to the Leased premises so that it cannot be removed without
material damage to the Premises, shall remain the property of LESSEE and may be
removed by LESSEE subject to the provisions of this paragraph.------------------
---Notwithstanding the "as is" nature of the Lease, LESSOR shall remain liable
and responsible for the maintenance and repair of the structure, systems, walls
and roof of the Premises and remedy and repair such defects as arise of become
known during the Term and Extended Term of this Lease.--------------------------
---LESSOR represents and warrants that the Premises are in good order and
condition and ready for their intended use by LESSEE. LESSOR also represents and
warrants that the Premises and all accessory parts thereof are in working
conditions and subject to receive from the appropriate utility company all
necessary utilities, such as water, telephone and electricity. LESSOR also
represents that the air-conditioning unit unit currently installed at the
Premises is in good order and condition; shall be LESSEE's responsibility to
maintain and repair, from time to time, said air-conditioning unit, including
the replacement of the machinery parts of such air-conditioning unit, if
necessary.----------------------------------------------------------------------
---LESSEE shall remain liable and responsible for the maintenance and repair of
the interior walls, ceilings, floors, lights, power, doors, windows, bus
ducting, power panels, fluorescent fixtures, conducts and wiring, machinery and
equipment, and remedy and repair such defects as arise or become known during
the Term of this Lease.---------------------------------------------------------
---LESSEE may install a sign with the name of LESSEE's business name, other
references and logo, in compliance with applicable laws and regulations.--------
---Notwithstanding the above stated LESSEE's responsibilities, LESSOR shall
remain liable and responsible for the structural soundness of all walls, ceiling
and floor of the Premises. Also LESSOR shall paint the exterior walls of the
Premises every two years, in coordination with LESSEE to avoid undue
interruptions on LESSEE's business operations.----------------------------------
9. SECURITY AND SAFETY:
---The security and guard service to the Premises will be provided exclusively
by LESSEE, at its cost. The LESSOR is not obligated to give guard service. The
LESSEE may install an alarm system and close circuit TV cameras in or out the
Premises, at LESSEE expense.----------------------------------------------------
10. UTILITIES:
---LESSEE shall be responsible to request, obtain and pay for all utilities
needed for its operation in the Premises, such as water, telephone and
electricity. The Premises are equipped to receive installation by utilities
companies of such utility services. LESSOR shall have no obligation, nor be
liable, as to the utilities needed by LESSEE, nor in the event of any
interruption in the supply of any of them. If equipment or machinery installed
or used by LESSEE shall require utilities facilities not available at the
Premises, the same shall be installed at LESSEE's cost, expense and risk in
accordance with plans and specifications to be approved in writing by LESSOR.---
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11. CONDITION OF PREMISES:
---LESSEE represents and warrants that it has examined and inspected the
Prcmises and hereby accepts the same in their existing condition, subject to the
previsions of Section 8 hereof, to all applicable zoning, municipal, and
commonwealth laws, ordinances and regulations, governing and regulating the use
of the Premises, and accepts this Lease subject thereto and to all matters
disclosed thereby. LESSEE acknowledges that neither LESSOR nor LESSOR'S agents
have made any representation or warranty as to the suitability of the Leased
premises for the conduct of LESSEE's business.----------------------------------
---The foregoing notwithstanding, LESSOR represents and warrants that the
Premises have a validly issued Use Permit and are in a condition to obtain the
issuance of a valid Use Permit. LESSEE must obtain a Use Permit validly issued
by A.R.P.E. (ADMINISTRACION DE REGLAMENTOS Y PERMISOS).-------------------------
12. LESSEE'S OBLIGATIONS:
---LESSEE shall, during the Term of this LEASE, keep the Premises in good order,
clean condition, free and clear of any and all debris, garbage, or similar
material, subject to normal wear and tear. LESSEE shall repair the Premises and
every non-structural part thereof. Except as otherwise stated in Section 8 of
this Lease, LESSOR shall incur in no expense nor have any obligations of any
kind whatsoever in connection with said maintenance of the Premises.------------
13. SURRENDER:
---On the last day of the Term hereof, or any sooner termination, LESSEE shall
surrender the Leased premises to LESSOR in the same conditions as when received,
broom clean, ordinary wear and tear excepted. LESSEE shall repair any damage to
the leased Premises occasioned by the removal of LESSEE's trade fixtures,
furnishings and equipment, which repair shall include the patching and filling
of holes and repair of structural damage.---------------------------------------
14. INSURANCE AND INDEMNITY:
14:1 INSURANCE
---LESSEE shall, during the entire term of this Lease, keep full force and
effect the following insurance policies with insurers approved by LESSOR and
authorized to do business in the Commonwealth of Puerto Rico:-------------------
---(a) General Public Liability Insurance Policy for an amount of not less than
$300,000.00 per person and for an amount of not less than $1,000,000.00 per
accident, in order to protect, defend and hold harmless the LESSOR from and
against any and all claims or liabilities for death or injury to persons,
including employees, officers and agents of LESSEE.-----------------------------
---(b) Property damage insurance against damages to the Premises. LESSOR must be
included as an additional insured under said insurance policy.------------------
---The Policies shall contain a clause that insurer will not cancel or change
the insurance policy without first giving the LESSOR thirty (30) days prior
written notice. Copies of the policies or certificates of Insurance shall be
delivered to LESSOR at the time this Agreement is signed by the herein appearing
parties. LESSOR may request LESSEE to increase LESSEE's insurance coverage based
on experience, Insurance Companies requirements and or Industry standards.------
14.2 INDEMNITY:
---The parties hereto shall indemnify and hold each other harmless from and
against any an all claims and demands arising from the other's use of the
property or the Premises,
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or from the conduct of their businesses, or from any activity, work or things to
be done, permitted or suffered in or about the Premises or the property, and
shall further indemnify and hold each other harmless from and against any and
all claims arising from any breach or default in the performance of any
obligations to be performed under the terms of this Lease, or arising from any
negligence of the other party, or any of its agents, employees, officers and
invitees and from any and all costs, expenses fees and other liabilities
incurred in the defense of any such claim or of any action or proceeding brought
against the indemnitee by reason of any such claim or demand. The indemnitor
shall, upon notice from the indemnitee, defend against any such claim at its
expense and engage counsel reasonably acceptable to the indemnitee. LESSEE
hereby assumes all risks of damage to property or injury to persons, in, upon or
about the Premises and waives any claim against the LESSOR, except with respect
to such damage, injury or claim arising from LESSOR's negligent acts or those of
its officers, agents, contractors, employees and invitees.----------------------
14.3 ENVIRONMENTAL INDEMNITY FOR PRIOR USES:
---LESSOR shall indemnify, defend, and hold harmless LESSEE and its officers,
directors, constituent owners, agents, employees, and representatives from all
fines, suits, proceedings, claims and actions of every kind, and all losses,
cost and expenses associated therewith, including any and all sums paid for
settlement of claims, attorney's fees, consultant's fees and personal injuries
arising from any violation to federal, local or Commonwealth of Puerto Rico
environmental law or regulation or environmentally related claim, that may have
accrued or occurred on or before the execution of this Lease Agreement.---------
15. RELEASE OF LESSOR FROM LIABILITY:
---LESSEE hereby agrees that LESSOR, except for act or omission of LESSOR or its
agents, contractors or employees, shall not be liable for injury to LESSEE's
business or any loss of income therefrom or for damages to the goods, wares,
merchandise or other property of LESSEE, LESSEE's employees, invites, customers,
or any other person in or about the Premises, nor shall LESSOR be liable for
injury to the person of LESSEE, LESSEE's employer, agents or customers, whether
such damage or injury is caused by or results from fire, steam, electricity,
gas, water or rain, or from breakage, leaking, obstructions of sprinklers,
wires, appliances, air conditioning or fixture or from any other cause whether
said damage or injury results from conditions arising upon the Premises or from
other portions of the building of which the Premises are a part not occupied or
controlled by LESSOR.-----------------------------------------------------------
16. SECURITY AND DEPOSIT.
---LESSEE has deposited with LESSOR as security for the performance by LESSEE of
the terms of this Lease a LEASE BOND for the sum of TWENTY EIGHT THOUSAND FIVE
HUNDRED DOLLARS ($28,500), which has been issued by an Insurance Company,
approved by LESSOR, with offices in Puerto Rico. LESSOR may use or apply that
LEASE BOND for the payment of any rent or other sums as to which LESSOR may be
entitled by reason of LESSEE's default in respect of any of the terms of this
Lease.--------------------------------------------------------------------------
---Under no circumstances shall the amount of the LEASE BOND limit the amount to
which LESSOR may be entitled under this Lease by way of damages or otherwise,
nor is such amount intended to be or represent a liquidated damage amount, but
is merely an amount which may be applied on account towards any amount due
LESSOR and unpaid under this Lease.---------------------------------------------
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---LESSEE access and use to Premises is contingent upon the delivery to LESSOR,
from time to time, of this valid LEASE BOND. Non compliance with this
obligation, will terminate this Lease.------------------------------------------
17. BANKRUPTCY:
---In the event LESSEE shall become insolvent, or admit in writing its inability
to pay its debts as they mature, or make an assignment for the benefit of
creditors, or shall apply for or consent to the appointment of any receiver,
trustee, or similar officer for all or a substantial portion of its assets, or
LESSEE shall apply for or institute any bankruptcy, arrangement for the benefit
of creditors, dissolution, liquidation, or similar proceeding, and such
proceeding remains undischarged for a period of thirty (30) days, LESSOR may, at
its sole option, terminate this lease.------------------------------------------
18. RECORDATION:
---The parties agree that this Lease may be recorded at the request of LESSEE.
The parties hereto agree to execute and deliver such private or public
documents, instruments and deeds as may be reasonably required to achieve
recordation of the Lease. LESSEE shall select the notary and pay corresponding
notarial fees and cost of such recordation.-------------------------------------
19. SUBORDINATION:
---LESSOR represents and warrants to LESSEE that the real property where the
Premises are located is free and clear of all liens and encumbrances. LESSOR
further represents and warrants to LESSEE that there are no unpaid taxes,
assessments or levies against such real property.-------------------------------
---LESSOR acknowledges and agrees that this Lease is and shall remain for the
Term of Extended Term of this Lease, a senior preferred interest in and to the
real property.------------------------------------------------------------------
20. NOTICES:
---All notices to be given under this Lease may be delivered personally or by
certified mail, postage prepaid to the following addresses:---------------------
---To LESSOR: Xx. Xxxx Xxxxxx, J & M, S.E., X.X. Xxx 000, Xxxxxx, Xxxxxx Xxxx,
00000.--------------------------------------------------------------------------
---To LESSEE: Xxxxxxx X. Xxxxxxx, Esq., Vice President & General Counsel,
Xxxxxx-Field Express (Puerto Rico), Inc., Executive Offices, 000 Xxxxx Xxxxx
Xxxx, Xxxxxxxxx, X.X. 11788.----------------------------------------------------
21. GOVERNING LAW:
---This Lease shall be governed; interpreted and construed pursuant to the laws
of the Commonwealth of Puerto Rico.---------------------------------------------
22. MUTUAL REPRESENTATIONS:
22.01 Partnership, corporation standing, etc:
---It is: (i) in the case of LESSOR, a special partnership, duly organized,
validly existing, and in good standing under the laws of the Commonwealth of
Puerto Rico; (ii) in the case of the LESSEE, a corporation duly organized and
validly existing under the laws of Delaware and authorized to do business in
Puerto Rico; and (iii) they are and will be, as to each Party, at all times
fully qualified and capable of performing every obligation and responsibility to
be performed and completed by it in accordance with the terms of this Lease
Agreement.----------------------------------------------------------------------
22.02 NO VIOLATION OF LAW; LITIGATION:
---The Parties are not in violation of any applicable law, which violations
would adversely affect their performance of any obligations under this
Agreement. There are
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no legal or arbitration proceedings or any proceeding by or before any
governmental agency, whether federal, local or Commonwealth, now pending or (to
its best knowledge) threatened against them which, if adversely determined,
could have a material adverse effect upon their ability to perform their
obligations under this Lease Agreement.-----------------------------------------
22.03 NO CONFLICT OR BREACH:
---None of the execution, delivery, and performance by each Party of this Lease
Agreement, the compliance with the terms and provisions hereof, and the carrying
out of the transactions contemplated hereby, conflicts or will conflict with or
will result in a breach or violation of any of the terms, conditions or
provisions of any law, or the charter documents, as amended, or other
organizational documents, as amended, of such Party or any order, writ,
injunction, judgment, or decree of any court or other governmental agency
entered against such Party or by which it or any of its properties are bound, or
any loan agreement, indenture, mortgage, note, resolution, bond, or contract or
other agreement or instrument to which such Party is a party or by which it or
any of its properties are bound, or constitutes or will constitute a default
thereunder or will result in the imposition of any lien upon any of its
properties.---------------------------------------------------------------------
22.04 AUTHORITY, ETC:
---The Parties have all necessary power and authority to execute, deliver, and
perform this Lease Agreement and its obligations hereunder; the execution,
delivery and performance of this Lease Agreement has been duly authorized by all
necessary actions on its part by its governing body; it has duly and validly
executed and delivered this Lease Agreement; and this Lease Agreement
constitutes a legal, valid, and binding obligation of such Party enforceable
against such Party in accordance with the terms hereof.-------------------------
23. MISCELLANEOUS PROVISIONS:
23.01 QUIET ENJOYMENT:
---LESSOR covenants and agrees that LESSEE shall and may peaceably and quietly
have, hold, occupy, use, and enjoy the Premises during the Term and the Extended
Terms, subject to the provisions of this Lease Agreement. The LESSOR agrees to
warrant and forever defend LESSEE's right to occupy, use, and enjoy the Premises
against the claims of any and all Persons whomsoever lawfully claiming the same
or any part thereof, and subject in all respects to the provisions of this Lease
Agreement.----------------------------------------------------------------------
23.02 EXCULPATION OF PARTNERS AND SHAREHOLDERS OF PARTNERS:
---Notwithstanding any other provision in this Lease Agreement to the contrary,
the obligations of the Parties hereunder are recourse only to the assets of each
Party, and neither the partners of LESSOR nor any shareholder, officer,
director, employee, agent or any affiliate of LESSEE thereof shall have any
personal liability for any breach of the performance or observance of any of the
covenants, representations, warranties or obligations of either Party contained
in this Lease Agreement.--------------------------------------------------------
23.03 NO ASSOCIATION, JOINT VENTURE, ETC:
---This Lease Agreement shall not be interpreted or construed to create an
association, joint venture or partnership between the Parties or any other
similar legal relationship. Neither Party shall have any right, power or
authority to enter into any agreement or undertaking for, or act on behalf of,
or to act as or be, an agent or representative of, or to otherwise bind, the
other Party without that Party's written consent.-------------------------------
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23.04 COUNTERPARTS:
---This Lease Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.----------------------------------------------------
23.05 CONSENTS, APPROVALS, AND ACKNOWLEDGMENTS:
---Whenever in this Lease Agreement consents, approvals, or acknowledgments are
called for from a Party it shall be understood that the same will not be
unreasonably denied or delayed; provided, that such consent shall be deemed to
be granted by a Party if the Party fails to respond to any written request for
such consent within thirty (30) days or receipt thereof and; provided, further,
that any denial by such Party of its consent shall set forth in reasonable
detail the basis for such denial.-----------------------------------------------
23.06 AMENDMENTS:
---This Lease Agreement can be amended during its Term and Extended Terms by
mutual written consent of the Parties. No waiver, alteration, or modification of
this Lease Agreement or any agreements entered into in connection with the Lease
Agreement shall be valid unless in writing duly executed by both Parties.-------
23.07 CAPTIONS:
---The captions contained in this Lease Agreement are for convenience and
reference only and in no way define, describe, extend, or limit the scope or
intent of this Lease Agreement or the intent of any provision contained herein.-
23.08 SEVERABILITY:
---The invalidity of one or more phrases, sentences, clauses, Sections, or
Articles contained in this Lease Agreement shall not affect the validity of the
remaining portions of the Lease Agreement so long as the material purposes of
this Lease Agreement can be determined and effectuated.-------------------------
23.09 NO WAIVER:
---Any failure of either Party to enforce any of the provisions of this Lease
Agreement or to require compliance with any of its terms at any time during the
pendency of this Lease Agreement shall in no way affect the validity of this
Lease Agreement, or any part hereof, and shall not be deemed a waiver of the
right of such Party thereafter to enforce any and each of such provisions.------
23.10 FURTHER ASSURANCES:
---Each Party agrees to execute and deliver all further instruments and
documents and to take all further action not inconsistent with the provisions of
this Lease Agreement that may be reasonably necessary to effectuate the purposes
and intent of this Lease Agreement.---------------------------------------------
23.11. THIRD PARTIES:
---Except as otherwise expressly provided in this Lease Agreement, nothing in
this Lease Agreement shall be construed to create any duty to, standard of care
with respect to, or any liability to any person who is not a party to this Lease
Agreement.----------------------------------------------------------------------
[Illegible] /s/ Xxxx X. Xxxxxx VP Finance
------------------------------------- ------------------------------------
LESSOR LESSEE
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Affidavit # 059
---On the 19th day of September 1996, before me personally appeared Xx. Xxxx
Xxxxxx, to me known to me to be a partner of the firm of "J & M, S.E.", executed
the foregoing instrument, and he thereupon acknowledged to me that he executed
the same as and for the act and deed of the said partnership, "J & M, S.E.".
[SEAL]
[Illegible]
------------------------------------
NOTARY PUBLIC
Affidavit #
---On the 19th day of September 1996, before me personally appeared Mr. Xxxx
Xxxxxx, to me known and known to me to be the Vice-President of Finance of
"Xxxxxx-Field Express (Puerto Rico), Inc.", executed the foregoing instrument,
and he thereupon acknowledged to me that he executed the same as and for the act
and deed of the said "Xxxxxx-Field Express (Puerto Rico),
Inc.".
XXXXXXX X. XXXXX
Notary Public, Slate of New York
No 5017870 Suffolk county
commission Expires September 13, 97
/s/ Xxxxxxx X. Xxxxx
------------------------------------
NOTARY PUBLIC
#57171.01
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