EXHIBIT 10.23b
PUERTO RICO INDUSTRIAL DEVELOPMENT COMPANY
P. O. Xxx 000000, Xxx Xxxx, Xxxxxx Xxxx 000000-0000
CONSTRUCTION AND LEASE CONTRACT
PROJECT NO: Extension to building
T-0810-0-68 of approximately 6,513 sq. ft.
and Xxx 0 xx X-000-0-00
XXXXXXXX: Xxxxxx, Xxxxxx Xxxx
THIS AGREEMENT ENTERED into on April 11, 2003 by AS "LANDLORD", THE PUERTO
RICO INDUSTRIAL DEVELOPMENT COMPANY, AND AS "TENANT", INTEGRA NEUROSCIENCES
P.R., INC. (INTEGRA P.R.).
WITNESSETH:
WHEREAS, LANDLORD is the owner of certain landsites, identified in the
Epigraph, described in Schedule "A" annexed hereto and made a part hereof
(hereinafter referred to as the Premises). The Premises are subject to the
encumbrances, liens and/or restrictions, if any, that may appear from said
Schedule "A". Furthermore, the air rights of the Premises, are excepted and
reserved to LANDLORD.
WHEREAS, LANDLORD has agreed to lease to TENANT, and TENANT has agreed to
hire from LANDLORD the Premises and an industrial building of approximately
6,513 square feet of gross building area to be constructed by LANDLORD on the
Premises.
NOW THEREFORE, in consideration of the foregoing premises, the parties
herein agree on this Lease subject to the following:
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TERMS AND CONDITIONS
One: TENANT hereby agrees and undertakes to construct a building at the
Premises of approximately 6,513 square feet of floor space (hereinafter referred
to as the "Building" or "Project").
Upon completion of the construction of the extension, LANDLORD shall
describe said extension and said description shall be included and made part of
the Supplement and Amendment to Lease Contract.
Two: The Building shall be used and occupied exclusively in the
manufacture of medical products and medical devices (SIC #3841). Lot number 6
will be use for parking.
Three: Tenant shall hold the Premises for a period of fifteen (15) years
to commence on the first day of the following month after the termination of the
building.
Four: Commencing on the first day of the following month after the
delivery of the new construction extension TENANT shall pay to LANDLORD annual
rental of the following manner:
Rent Per Sq. Ft. Monthly Basic Rent Annua Basic Rent
(a) T-0810-0-68 and
180 months $3.85 $7,487.71 $89,852.46
(b) Lot 6 $958.34
The monthly installments for rent specified herein, shall be paid in
advance on the first day of each month at LANDLORD'S office, or at any office
place that LANDLORD may notify. In the event that the date of commencement does
not fall on the first of the month, TENANT further agrees to pay the first
partial monthly installments, prior to, or on the date of commencement.
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Five: TENANT shall deposit with LANDLORD the amount of $10,782.30
distributed as follows:
a) $3,016.28 previously deposited by TENANT as a
reservation fee of Project Num T-0810-0-68, on June 30,
1994.
b) $7,766.02 will be paid upon delivery of the building to
TENANT in a Certified or Manager's Check.
This deposit shall guarantee the compliance by TENANT of its obligations,
under this Contract particularly, but not limited to, the payment of rent, the
compliance of the environmental clauses herein included and the return of the
Premises in proper condition at the termination of this Lease. On said
termination, if TENANT is not in default of any of the terms and conditions of
this Contract, LANDLORD will return to TENANT the sum of money, if any, held
pursuant to this provision, after LANDLORD's Environmental Office certifies that
there are no environmental deficiencies as a result of TENANT'S manufacturing
operation on the demised Premises.
Six: TENANT agrees to have on the date of commencement of the term of this
Lease a capitalization of $500,000.00. Likewise, TENANT agrees to install within
six (6) months from the same date manufacturing machinery and equipment with a
value of at least $900,899.00. This shall not include the cost of transportation
and installation thereof, nor its ordinary depreciation after installation; and
within eighteen (18) months from the date of commencement of the term, to employ
a minimum of eighty-five (85) production workers. The aforementioned levels,
shall be maintained throughout the term of this Lease or any extension thereof.
Seven: All notices, demands, approvals, consents and/or communications
herein required or permitted shall be in writing If by mail should be certified
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and to the following addresses, to LANDLORD: P0 XXX 000000, XXX XXXX, XXXXXX
XXXX 00000-0000. To TENANT:
Xx. Xxxxxx Xxxxxxx, General Manager Parent Company: Integra LifeSciences X.X.
Xxx 000, Xxxxxx, X.X. 00000 000 Xxxxxxxxxx Xxxxx
Phone (000) 000-0000 Xxxxxxxxxx, XX 00000
Att: Senior VP-Operations and Law Department
Eight: Net Lease - This Lease shall be interpreted as a net lease; it
being the exclusive responsibility of TENANT to pay for all operating expenses,
utilities, maintenance, expenses, insurance, taxes or any other costs, expenses
or charges of any nature not specifically assumed by LANDLORD hereunder.
Nine: Warranty as to use - LANDLORD does hereby warrant that at the time
of the commencement of the term of this Lease, the Premises may be used by
TENANT for the manufacturing purposes herein intended which are deemed
consistent with the design and construction in accordance with the corresponding
plans and specifications.
Ten: Alterations - TENANT shall make no alterations, additions or
improvements to the Premises without the prior consent of LANDLORD and all such
alterations, additions or improvements made by or for TENANT, shall be at
TENANT'S own cost and expenses and shall, when made, be the property of LANDLORD
without additional consideration and shall remain upon and be surrendered with
the Premises as a part thereof at the expiration or earlier termination of this
Lease, subject to any right of LANDLORD to require removal or to remove as
provided for hereinafter.
In the event TENANT asks for LANDLORD'S consent or any alteration,
LANDLORD may at its option, require from TENANT to submit plans and
specifications for said alteration. Before commencing any such work, said plans
and specifications,
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if required, shall be filed with and approved by all governmental agencies
having jurisdiction thereof, and the consent of any mortgagee having any
interest in or lien upon this Lease shall be procured by TENANT and delivered to
LANDLORD if required by the term of the mortgage.
Before commencing any such work, TENANT shall at TENANT'S own cost and
expense, deliver to LANDLORD a General Accident Liability Policy more
particularly described in Article THIRTY (30) hereof, but said policy shall
recite and refer to such work, and in addition thereto, if the estimated cost of
such work is more than FIVE THOUSAND DOLLARS ($5,000.00), TENANT shall, at
TENANT'S own cost and expense, deliver to LANDLORD a surety bond, or a
performance bond from a Company acceptable to LANDLORD, or a similar bond or
other security satisfactory to LANDLORD in an amount equal to the estimated cost
of such work, guaranteeing the completion of such work within a reasonable time,
due regard being had to conditions, free and clear of materialmen liens,
mechanics liens or any other kind of lien, encumbrances, chattel mortgages and
conditional bills of sale and in accordance with said plans and specifications
submitted to and approved by LANDLORD. At LANDLORD'S option TENANT shall provide
a blanket written guarantee in an amount sufficient to satisfy LANDLORD as to
all alterations, changes, additions and improvements to the Premises in lieu of
separate guarantee for each such project.
TENANT shall pay the increased premium, if any, charged by the insurance
companies carrying insurance policies on said building, to cover the additional
risk during the course of such work.
Eleven: Power Substation - If required by TENANT'S operations, TENANT
shall, at its own cost and expense, construct and/or install a power substation
and connect it to the PUERTO RICO ELECTRICAL POWER AUTHORITY (PREPA)
distribution lines, for voltages up to 13.2 KV; and to PREPA transmission lines
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for voltages of 38 KV, all in conformity to PREPA'S requirements. Such
construction shall, in no event, be undertaken by TENANT until after LANDLORD
has approved the location thereof, as well as the routing of the power line
extension.
Twelve: Repairs and Maintenance - TENANT shall, at its own cost and
expense, put, keep and maintain in thorough repair and good order and safe
condition of the building and improvements standing upon the Premises at the
commencement of the term hereon or thereafter erected upon the premises, or
forming part of the Premises, and their full equipment and appurtenances, the
side walks areas, sidewalk hoists, railings, gutters, curbs and the like in from
of the adjacent to the Premises, and each and every part thereof, both inside
and outside, extraordinary and ordinary, and shall repair the whole and each and
every part thereof in order to keep the same at all times during the term hereof
in through repair and good order and sale conditions, whenever the necessity or
desirability therefor may occur, and whether or not the same shall occur, in
whole or in part, by wear, tear, obsolescence or defects, and shall use all
reasonable precautions to prevent waste, damage or injury, except as provided
hereinafter.
LANDLORD and not TENANT, shall be responsible for and shall promptly
correct any defects in the building on the Premises which are due to faulty
design, or to errors of construction not apparent at the time the Premises were
inspected by TENANT for purposes of occupancy by TENANT; this shall not be
interpreted to relieve TENANT of any responsibility or liability herein
otherwise provided, including among others, for structural failure due to the
fault or negligence of TENANT.
TENANT shall also, at TENANT'S own cost and expense, maintain the landsite
in thoroughly clean condition; free from solid waste (which includes liquid and
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gaseous as defined by the Resource Conservation and Recovery Act), and the
Regulation on Hazardous and Non-Hazardous Waste of the Environmental Quality
Board, as amended, rubbish, garbage and other obstructions. Specifically, TENANT
shall not use said landsite, nor permit it to be used, as a deposit or as dump
for raw materials, waste materials, hazardous, toxic or non-toxic substances, or
substances of whichever nature. TENANT shall neither make any excavation for the
purpose of storing, putting away and/or concealing raw materials or waste
materials of any kind. Underground storage of hazardous and/or toxic substances
is specifically prohibited.
TENANT shall not do or cause to be done, nor permit on the Premises
anything deemed extra hazardous, nor shall it store in the Premises flammable or
toxic products of and class or kind without taking the proper precautions and
complying with applicable federal and Commonwealth laws and regulations.
In case TENANT needs to store in the landsite raw materials of a hazardous
and/or toxic nature or hazardous and/or toxic wastes, TENANT shall notify
LANDLORD and secure its prior authorization. LANDLORD shall he furnished with a
copy of any permit issued for such storage.
Although it is not intended that TENANT shall be responsible for any
decrease in value of the Premises due to the mere passing of time, or for
ordinary wear and tear of surfaces and other structural members of the building,
nevertheless TENANT shall: (i) replace, with like kind and quality, doors,
windows; electrical, sanitary and plumbing, fixtures; building equipment and/or
other facilities or fixtures in the Premises which through TENANT'S use, fault
or negligence, become too worn out to repair during the life of this Lease, (ii)
paint the property inside and outside as required.
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In addition to the foregoing, TENANT shall indemnify and safe harmless
LANDLORD from and against any and all cost, expenses claims, losses, damages, or
penalties, including counsel fees, because of or due to TENANT'S failure to
comply with the foregoing, and TENANT shall not call upon LANDLORD for any
disbursement or outlay of money whatsoever and hereby expressly releases and
discharges LANDLORD of and from any liability or responsibility whatsoever in
connection therewith.
Thirteen: Roof Care - TENANT, without the prior consent of LANDLORD, shall
not: (i) erect or cause to be erected on the roof any xxxx board, aerial sign,
or structure of any kind, (ii) place any fixture, equipment or any other load
over the roof, (iii) drill any hole on the roof for whichever purpose, (iv) use
the roof for storage, nor (v) correct any leaks whatsoever, this being
LANDLORD'S sole responsibility. Furthermore, TENANT shall take all reasonable
precautions to insure that the drainage facilities of the roof are not clogged
and are in good and operable conditions at all times.
Fourteen: Floor Loads - TENANT hereby acknowledges that it has been
informed by LANDLORD that the maximum floor load of the Premises herein demised
is 150 pounds per sq. ft. Therefore, TENANT hereby agrees that in the event the
load of the machinery and equipment to be installed thereat exceeds such maximum
load, it shall, at its own cost and expense, carry out any improvements to the
floor of the Premises which may be necessary to support such additional load; it
being further agreed and understood that construction and/or installation of
such improvements shall not be commenced until after LANDLORD'S approval of the
plans to be prepared therefor by TENANT and thereafter, after completion of
construction and/or installation of said facilities, they shall be deemed
covered by and subject to the applicable provisions of this Contract; it being
further specifically agreed and understood that upon termination of this Lease,
such facilities shall be removed by TENANT, at its own cost and expense, or in
the alternative, and upon request by LANDLORD, they shall remain as part of the
Premises with no right whatsoever on the part of TENANT to be reimbursed and/or
compensated therefor.
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Fifteen: Fixtures - TENANT shall not affix to the ceiling, nor to its
supporting joists or columns, nor to any unit, walls, any air conditioning unit,
nor any other fixture, without the prior consent of LANDLORD.
Sixteen: Environment of Protection and Compliance - TENANT agrees, as a
condition hereof, that it will not discharge its solid, liquid or gaseous
industrial and/or sanitary effluent or discharges, either into the sewer system
and/or any other place until after required authorization therefor has been
obtained from the Puerto Rico Aqueduct and Sewer Authority and/or the Department
of Health of Puerto Rico and/or Environmental Quality Board, and/or any other
governmental agency having jurisdiction therefore and TENANT further agrees and
undertakes to pre-treat any such effluent, prior to discharge thereof as
required by the said Authority, Department and/or governmental agency with
jurisdiction, and/or to install any equipment or system required, and to fully
abide by and comply with any and all requisites imposed thereby, and upon
request by LANDLORD to submit evidence of such compliance; it being agreed that
non-compliance thereof by TENANT for a period of ninety (90) days after notice,
shall be deemed an additional event of default under the provisions hereof.
Provided, that no construction and/or installation shall be made until LANDLORD
has approved of it.
TENANT shall also, at TENANT'S own cost and expense, construct and
maintain Premises, processes and/or operating procedures in compliance with the
terms, conditions and commitments specified in any Environmental Impact
Statement, Environmental Assessment or any other analogous document produced by
the Commonwealth of Puerto Rico, Economic Development Administration/ LANDLORD
as lead agency/ or by any other governmental agency in connection with the
approval or operation of the project.
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TENANT shall also serve LANDLORD with a copy of any lawsuit, notice of
violation, order to show cause or any other regulatory or legal action against
TENANT in any environmental-related case or issue.
TENANT shall also serve LANDLORD with a copy of any permit granted to
TENANT for air emissions, water discharge, solid waste generation, storage,
treatment and/or disposal, and for any hazardous and/or toxic waste raw
materials or by-products used or generated, stored, treated and/or disposed or
any other endorsement, authorization or permit required to be obtained by
TENANT.
TENANT shall also serve LANDLORD with a copy of any filing or notification
to be filed by TENANT with any regulatory agency or any environmentally related
case or issue, especially in any situation involving underground or surface
water pollution, hazardous and/or toxic waste spillage and ground contamination.
The notification to LANDLORD shall take place not later than the actual filing
of the pertinent documents with the regulatory agency.
Seventeen: Improper Use - TENANT, during the term of this Lease and of any
renewal or extension thereof, agrees not to use or keep or allow the leased
Premises or any portion thereof to be used or occupied for any unlawful purpose
or in violation of this lease or of any certificate of occupancy or certificate
of compliance covering or affecting the use of the Premises or any portion
thereof, and will not suffer any act to be done or any condition to exist on the
Premises or any portion thereof or any article to be brought thereon, which may
be dangerous, unless safeguarded as required by law, or which may in law,
constitute a nuisance, public or private, or which may made void or voidable any
insurance lien in force on the leased Premises.
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Eighteen: Government Regulation - TENANT agrees and undertakes to abide by
and comply with any and all rules, regulations and requirements of the Planning
Board of Puerto Rico, the Department of Health, the Environmental Quality Board,
the Environmental Protection Agency (EPA), where applicable and/or of any other
governmental agency, having jurisdiction thereon applicable to TENANT operations
at the Premises and/or products to be manufactured thereat, and if requested by
LANDLORD, TENANT shall submit evidence of such compliance; it being agreed and
understood that noncompliance with any and all such rules, regulations and
requisites shall be deemed an additional event of default under the provisions
of this Contract, unless remedied within thirty (30) days after receipt of
notice hereof.
Any and all improvements to the Premises required by any governmental
agency, having jurisdiction thereon so as to carry TENANT'S operations in
accordance with the regulations and requisites thereof, shall be at TENANT'S own
cost and expense, except for any improvements that may be required as a result
of any violation by LANDLORD that may exist at the effective date hereof other
than violations caused by TENANT or TENANT'S agents.
TENANT further agrees and undertakes to install in the Premises, at its
own costs and expense, such devices as may be necessary to prevent any hazard,
which may be caused or created by its operations from affecting the
environmental integrity of the landsite or causing any nuisance to adjacent
TENANTS and/or the community in general, it being agreed and understood that
creating or causing any such nuisance, shall be deemed an additional event of
default under the provisions of this Contract.
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TENANT further agrees and undertakes to abide by and comply with any and
all rules, regulations and requisites of the Fire Department relative to the use
and storage of raw materials, finished products and/or inflammable materials,
and/or of any other governmental agency, having jurisdiction thereon applicable
to TENANT'S operations at the Premises, and if requested by LANDLORD, TENANT
shall submit evidence of such compliance; it being agreed and understood that
noncompliance by TENANT with any of the aforementioned rules, regulations and
requisites shall be deemed, in each of such cases, an additional event of
default under the provision of this Contract, unless remedied within thirty (30)
days after receipt of notice thereof.
If as a consequence of the foregoing dispositions, TENANT need to make
alterations to the Premises, the same shall be done subject to the dispositions
of Article TEN hereof.
Nineteen: Use Permit - TENANT agrees to abide by and comply with any and
all conditions and requisites included in the Use Permit which may be issued by
the Puerto Rico Permits and Regulations Administration (ARPE), and if requested
by LANDLORD, shall submit evidence of such compliance; it being agreed and
understood that non-compliance by TENANT with any and all such conditions and
requisites and/or the cancellation of the said Use Permit shall, in each of such
cases, be deemed an additional event of default under the provisions of this
Contract.
Twenty: Inspection - TENANT shall permit LANDLORD or LANDLORD'S agents to
enter the Premises at all reasonable time for the purpose of inspecting the
same, or of making repairs that TENANT has neglected or refused to make as
required by the terms, covenants and conditions of this Lease, and also for the
purpose of showing the Premises to persons wishing to purchase the same, and
during the year next preceding the expiration of this Lease, shall permit
inspection thereof by or on behalf of prospective TENANT. If, at a reasonable
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time, admission to the Premises for the purposes aforesaid cannot be obtained,
or if at any time an entry shall be deemed necessary for the inspection or
protection of the property, or for making any repairs, whether for the benefit
of TENANT or LANDLORD, LANDLORD'S agents or representatives may enter the
Premises by force, or otherwise, without rendering LANDLORD, or LANDLORD'S
agents or representative liable to any claim or cause of action or damage by
reason thereof, and accomplish such purpose.
The provisions contained in this Article are not to be construed as an
increase of LANDLORD'S obligations under this Lease; it being expressly agreed
that the right and authority hereby reserved does not impose, nor does LANDLORD
assume, by reason thereof, any responsibility or liability whatsoever for the
repair, care of supervision of the Premises, or any building, equipment or
appurtenance on the Premises.
Twenty-one: LANDLORD'S entry for repairs and alterations - LANDLORD
reserves the right to make such repairs, changes alterations, additions or
improvements in or to any portion of the building and the fixtures and equipment
which are reputed part thereof as it may deem necessary or desirable and for the
purpose of making the same, to use the street entrances, halls, stairs and
elevators of the building provided that there be no unnecessary obstruction of
"TENANT'S" right of entry to and peaceful enjoyment of the Premises, and TENANT
shall make no claim or rent abatement compensation or damages against LANDLORD
by reason of any inconvenience or annoyance arising therefrom.
Twenty-two: LANDLORD excused in certain instances - If, by reason of
inability to obtain and utilized labor, materials or supplies, or by reason of
circumstances directly or indirectly the result of any state of war, or of
emergency duly proclaimed by the corresponding governmental authority, or by
reason (if any laws, rules orders, regulations or requirements of any
governmental now or hereafter in force or by reason of strikes or riots, or by
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reason of accidents, in damage to or the making of repairs, replacements or
improvements to the building or any of the equipment thereof, or by reason of
any other cause reasonable beyond the control of LANDLORD, LANDLORD shall be
unable to perform or shall be delayed in the performance of any covenant to
supply any service, such non-performance or delay in performance shall not be
ground to any claim against LANDLORD for damages or constitute a total or
partial eviction, constructive or otherwise. It being agreed and understood that
the time for completion of any such construction, shall be extended for a period
of time equal to the number of days of any such delay.
Twenty-three: Quiet Enjoyment - TENANT on paying the full rent and keeping
and performing the conditions and covenants herein contained, shall and may
peaceably and quietly enjoy the Premises for the term aforesaid, subject,
however, to the terms of this Lease and to the mortgages hereinafter mentioned.
Twenty-four: Leasehold Improvements - If leasehold improvements made by or
for the benefit of TENANT in the Premises at his request or other personal
property to TENANT are assessable or taxable and a tax liability is imposed to
TENANT or LANDLORD, it is understood that it shall be the sole responsibility of
TENANT to pay such taxes and in no event shall such taxes be the liability or be
transferable to LANDLORD. In the event that by operation of law, such taxes
became a liability of LANDLORD, TENANT shall pay such taxes as they become due
and payable and shall promptly reimburse LANDLORD for any payments or expenses
incurred or disbursed by LANDLORD by reasons of any such assessment. Said amount
shall be due and payable, as additional rent, with the next installment of rent.
In the event that TENANT fails to make this payment when due, it shall be
subject to the dispositions of Article THIRTY-SEVEN hereof.
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Twenty-five: Stoppage of Operations - It is understood by the parties
hereto that this Lease is made by LANDLORD in furtherance of the
industrialization plans of the Commonwealth of Puerto Pico, and it is
accordingly understood that TENANT will use all reasonable efforts while this
Lease is in effect to maintain a manufacturing operation upon the Premises, but
nothing contained in this paragraph shall be deemed to require TENANT to
maintain such an operation otherwise than in accordance with sound principles of
business management, or (without limiting the generality of the foregoing) to
prevent TENANT from curtailing such operation or from shutting it down, whenever
and as often as TENANT may, in the exercise of sound business judgment, deem
such action advisable. However, TENANT shall give to LANDLORD notice of any
necessary or convenient curtailment and/or shut-down, at least seven (7) days
prior to the date fixed therefor except in cases of an emergency shut-down, in
which case such notice shall be given at the earliest possible time. No
curtailment of operations or shut-down in accordance with the provisions of this
paragraph shall constitute a default under the provisions of this Contract which
will enable LANDLORD to terminate it, unless such plants shall have been
shut-down for a period of six (6) consecutive months. A shut-down on account of
unforeseeable event or events which although foreseeable could not be prevented,
shall not constitute a breach of this agreement. Nothing in this paragraph
contained shall relieve TENANT from the payment of rent during the period of any
shut-down or curtailments of operations.
Twenty-six: Assignment and Subletting - TENANT shall not assign, this
Lease nor let or sublet the Premised or any part thereof except to its parent
company, to a wholly owned subsidiary, to an affiliate of TENANT, wholly owned
by TENANT's parent company or to a corporation to be organized by TENANT. In any
of these cases, TENANT shall properly notify LANDLORD of said assignment or
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subletting, it being agreed and understood that no such assignment or subletting
shall: (i) reduce or, in any way, affect the obligations of TENANT under this
Lease, nor (ii) release TENANT from liability under this Lease.
Twenty-seven: Successors in Interest - This Lease Contract and every
provision thereof, shall bind and inure to the benefit of the legal
representatives, successors and assigns on the parties. However, the term
"LANDLORD", as used in this Contract, so far as any covenants or obligations on
the part of LANDLORD under this Lease are concerned, shall be limited to mean
and include only the owner or lessor, at the time in question, of the Premises,
so that in the event hereafter of a transfer of the title to the Premises,
whether any such transfer be voluntary or by operation of law or otherwise, the
person, natural or juridical, by whom any such transfer is made, shall be and
hereby is entirely freed and relieved of all personal liability as respects the
performance of the covenants and obligations of LANDLORD under this Lease from
and after the date of such transfer.
Twenty-eight: No Representation by LANDLORD - LANDLORD, LANDLORD'S agents,
executives or employees, have made no representations or promises with respect
to the Premises except as herein expressly set forth and no rights, easements or
licenses are acquired by TENANT by implication or otherwise except as expressly
set forth in the provisions of this Contract. The taking possession of the
Premises by TENANT, shall be conclusive evidence, as against TENANT, that TENANT
accepts same "AS IS" and that said Premises, particularly the building which
forms a part of the same, were in good and satisfactory conditions at the time
such possession was so taken.
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Twenty-nine: Damages - LANDLORD shall not be responsible for any latent
defect or change of conditions in the Premises resulting in damage to the same,
or the property or person therein, except to the extent of LANDLORD'S gross
negligence, and provided such claims or loss is not covered by insurances herein
required from TENANT. TENANT shall promptly notify LANDLORD of any damage to or
defects in the Premises, particularly in any part of the building's sanitary,
electrical, air conditioning or other systems located in our passing through the
Premises, and the damage or defective conditions, subject to the provisions of
Article TWENTY-ONE (21) hereof, shall be remedied by LANDLORD with reasonable
diligence.
Thirty: General Liability Insurance - TENANT shall indemnify, have
harmless and defend LANDLORD and agents, servants and employees of LANDLORD
against and from any and all liability, fines, suits, claims, demands, expenses,
including attorneys' fees, and actions of any kind or nature arising by reason
of injury to person or property including the loss of use resulting thereof or,
violation of law occurring in the Premises occasioned in whole or in part by any
negligent act or omission on the part of TENANT or an employee (whether or not
acting within the scope of his employment), servant, agent, licensee, visitor,
assignor or undertenant of TENANT, or by any neglectful use or occupancy of the
Premises or any breach, violation or non-performance of any covenant in this
Lease on the part of TENANT to be observed or performed.
Pursuant to the foregoing, TENANT shall, maintain during the term of this
lease, at its own cost and expense, a Comprehensive General Liability Policy.
Said policy shall: (i) be for a combined single limit of no less than
$1,000,000.00 per accident, (ii) hold LANDLORD harmless against any and all
liability as hereinbefore stated, and (iii) the care, custody & control
exclusion shall be deleted from this coverage. LANDLORD may require additional
reasonable limits of public liability insurance and coverages, when changing
circumstances so required.
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Thirty-one: Property Insurance - TENANT recognizes that the rent provided
for herein does not include any element to indemnify, repair, replace or make
whole TENANT, his employees servants, agents, licensees, visitors, assignees, or
undertenant for any loss or damage to any property or injury to any person in
the Premises.
Accordingly, during the term of this Lease, TENANT shall keep the building
standing upon the Premises at the commencement of the term hereof or thereafter
erected upon the Premises, including all equipment appurtenant to the Premises
and all alterations, changes, additions and improvements, insured for the
benefit of LANDLORD and TENANT, as their respective interest may appear, in an
amount at least equal to the percentages stated below (as LANDLORD may from time
to time determine). The basis of the Property Insurance shall be Replacement
Cost and the coverage an "All Risks" Property Insurance Policy. Coverages
included in the All Risks Form:
1. Fire - "Building & Contents Form"
(a) Building - 100% of insurable value exclusive of foundations
(b) Contents - All equipment appurtenant to the Premises (State
value of Policy)
2. Additional Coverages under the Fire Policy
(a) Extended Coverage Endorsement - 100% of insurable value
exclusive of foundations
(b) Earthquake - 100% of insurable value including foundations
(c) Vandalism and Malicious Mischief Endorsement
(d) Improvements and Betterments - For all alterations, changes,
additions and improvements
Page 18
3. Landsite and Flood whenever applicable and/or necessary
4. Boiler and Machinery (if any) - 100% of insurable value
5. Pollution Liability Policy - if necessary.
6. Insurance. During the Term of this Lease Agreement, Tenant shall
maintain in force the following insurance policies:
(a) commercial general liability, including contractual liability,
with limits of not less than $1,000,000 for bodily injury (including
death) and $1,000,000 for property damage, per occurrence, which will
insure Tenant against any claim for accidents in or around the Leased
Premises due to use or occupation of the Leased Premises by Tenant. This
Insurance shall include Landlord and its agents, officers, directors and
employees as additional insures, and said policy shall include a "fire
legal liability" endorsement;
(b) property insurance with "All Risk" coverage, for one hundred
percent (100%) real property replacement cost, including foundations, with
an extended coverage endorsement, which names Landlord as beneficiary in
case of loss. This insurance shall include coverage for fire, hurricanes,
floods, earthquakes and other events of a similar nature, vandalism and
malicious mischief, boilers and machinery (if applicable) in building
format and content, including all changes, alterations, extensions and
improvements made by Tenant to the Leased Premises;
(c) pollution liability if required by Landlord because of the type
of the operations carried on by Tenant; and,
(d) any other insurance over the Leased Premises which provides
adequate coverage for those insurable risks that are common for property
similar to the Leased Premises.
The deductibles of the insurance policies herein required shall be
Tenant's responsibility and should Landlord undertake any repairs after
any loss or damage to the Leased Premises, Tenant shall reimburse Landlord
the deductible payable under the insurance policy, together with any
amount paid by any insurance provider.
Insurance During Construction. During any construction period at the
Leased Premises, including the work to be performed by Tenant described in
Attachment E, if any, Tenant must have in force the following insurance
policies:
(i) "builders risk" insurance which provides coverage for all
improvements that are being constructed, equivalent to one hundred percent
(100%) of their replacement value;
(ii) if the estimated cost of construction is over five thousand
dollars ($5,000), Tenant must, at Tenant's own cost and expense, provide
Landlord with a performance bond from a surety company recognized and
Page 19
approved by Landlord, or other satisfactory guarantee acceptable to
Landlord, in a sum equal to the estimated cost of said construction to
guarantee completion of any construction within a reasonable time. At
Landlord's option, instead of Tenant's obtention of a separate bond or
guarantee for each project that may be in process at any given time,
Tenant shall provide Landlord with one bond or guarantee that covers all
alterations, changes, additions or improvements and other construction
occurring at the same time; and,
(iii) Workers' Compensation from the State Insurance Fund
Corporation in such coverage amounts as required by law.
Insurance Policy Increase. Tenant will pay any premium increase required
by an insurance company to cover additional risks resulting from any
alteration, change, addition or improvement made by Tenant to the Leased
Premises.
General Requirements. All insurance policies required of Tenant under this
Article XV must comply in form and substance to Landlord's requirements,
and must provide the following: (i) that the insurance coverage may not be
reduced, canceled or not renewed by the insurance company without written
notice to Landlord and Tenant at least sixty (60) days in advance (unless
said cancellation is due to failure to pay premium, in which case notice
must be sent at least thirty (30) days in advance); and (ii) that the
policy shall be immediately renewed by Tenant on or before its expiration
date. Tenant must obtain said policies from insurance companies duly
authorized to do business in Puerto Rico, and acceptable to Landlord. Said
insurance companies shall have a classification of not less than "A" and a
financial rating of "IV" or better, as rated by A.M. Best and Company.
Insurance Certificates. Before the Date of Delivery of Possession Tenant
shall submit to Landlord the policies (or certified copies) of same
required under this Article XV with all the mentioned endorsements, and
certificates of insurance which evidence the required coverage by Sections
15.01 and 15.02 of this Lease Agreement. Tenant expressly recognizes
Landlord's right not to deliver the Leased Premises to Tenant until two
(2) days after the policies (or certified copies) and the insurance
certificates have been submitted to Landlord, as required in this section.
Evidence of Payment; Renewal of Policies. Tenant must deliver to Landlord
satisfactory evidence of payment of the insurance premiums within fifteen
(15) days of the respective renewal dates of the respective policies and
at the same time submit the corresponding insurance certificate or
certified copy of each renewed policy.
Claims. Tenant shall cooperate with Landlord in the collection of claims
against the corresponding insurance companies in those cases where
Landlord handles such claims, including the preparation of damage reports
and other documents required to process the claim. In the event Tenant
does not provide said documents, Landlord, as Tenant's agent and
attorney-in-fact, shall, in addition to any other remedy available to
Landlord, execute and submit any evidence of loss and/or any other
document necessary for collection of the claim.
Page 20
Periodic Reviews. Landlord reserves the right to review and demand
periodically increases in the limits of the coverages required in this
Lease Agreement as results from the effects of inflation.
Penalties. Notwithstanding the provisions of Section 22.08, and without
affecting the general terms of the matters stipulated therein, should
Tenant breach its duty to obtain any of the policies required in Article
XV, which as a result renders it necessary for Landlord to obtain said
policies, in addition to reimbursement for the premium paid for said
policies, Tenant shall pay Landlord a sum equal to twelve percent (12%) of
the cost of the policies obtained by Landlord to cover Landlord's
administrative costs.
Waiver of Subrogation. (a) Landlord and Tenant agree that all fire and
extended coverage and other property damage insurance carried by either of
them in relation to the Leased Premises shall be endorsed with a clause
providing that any release from liability or waiver of claim for recovery
from the other party entered into in writing by the insured thereunder
prior to any loss or damage shall not affect the validity of said policy
or the right of the insured to recover thereunder, provided that the
insurer waives all rights of subrogation which such insurer might have
against the other party. Any release or any waiver of claim shall not be
operative in any case where the effect of such release or waiver is to
invalidate any insurance coverage or invalidate the right of the insured
to recover thereunder. Should any waiver of subrogation result in a
premium increase, Tenant shall, within ten (10) days of notice, pay said
increase in order to maintain the effectiveness said release or waiver.
(b) Neither Landlord nor Tenant shall be liable to the other or the
insurance company that provided the coverage for any loss or damage to any
building or structure of the Leased Premises for the loss of income either
through subrogation or any other form, regardless if such loss or damage
be, in whole or in part, caused by a negligent act or omission of the
other party, its agents, officers, directors or employees, to the extent
that such loss or damage is covered by insurance policy in favor of the
affected party.
Thirty-two: Multifactory Building Specific Dispositions - In the event
that the Premises constitute a section or sections of an industrial building and
landsite in which other operations are conducted by other TENANT'S: (i) the
insurance coverage herein required, shall be acquired by LANDLORD for the whole
of the industrial building and TENANT shall reimburse LANDLORD, for its
proportionate share in the total cost of said policies, (ii) if, because of
anything done, caused or permitted to be done, permitted or omitted by TENANT,
the premium rate for any kind of insurance affecting the Premises shall be
increased, TENANT shall pay to LANDLORD the additional amount which LANDLORD may
Page 21
be thereby obligated to pay for such insurance, and if LANDLORD shall demand
that TENANT remedy the condition which cause the increase in the insurance
premiums rate, TENANT will remedy such conditions within five (5) days after
such demand, and (iii) the insurance policies required in the preceding Articles
THIRTY (30) & THIRTY-ONE (31) shall be endorsed to include a waiver of
subrogation against TENANT. All amounts to be reimbursed by TENANT under this
Article, shall be due and payable, as additional rent, with the next installment
of rent. In the event that TENANT fails to make this payment, when due, it shall
be subject to the dispositions of Article THIRTY-SEVEN (37) hereof.
Thirty-three: Additional Dispositions about Insurance - All the Insurance
policies herein required from TENANT, shall be taken in form and substance
acceptable to LANDLORD with insurance companies duly authorized to do business
in Puerto Rico, having a "A" and a higher financial rating according to Best's
Insurance Report; and shall include LANDLORD as additional insured. TENANT shall
instruct the corresponding insurer to deliver such policies or certified copies
of Certificates of Insurance, in lieu of, directly to LANDLORD. LANDLORD
reserves the right not to deliver possession of the Premises to TENANT, unless,
and until two (2) days after such original policies, or certified copies or
certificates have been deposited with LANDLORD.
Furthermore, said policies, shall (i) provide that they may not be
cancelled by the insurer for nonpayment of premium or otherwise, until at least
thirty (30) days after services of notice by registered or certified mail of the
proposed cancellation upon LANDLORD, and (ii) be promptly renewed by TENANT upon
expiration and TENANT shall, within thirty (30) days after such renewal, deliver
to LANDLORD adequate evidence of the payment of premiums thereon. If such
Page 22
premiums or any of them shall not be so paid, LANDLORD may procure the same in
the manner set forth for governmental agencies, and TENANT shall reimburse
LANDLORD any amount so paid. This reimbursement being due and payable with the
next installment of rent. In the event that TENANT fails to make this payment
when due, it shall be subject to the dispositions of Article THIRTY-SEVEN (37)
hereof. It is expressly agreed and understood, that payment by LANDLORD of any
such premiums shall not be deemed to waive or release the default in the payment
thereof by TENANT nor the right of LANDLORD to take such action as may be
available hereunder as in the case of default in the payment of rent.
Upon the commencement of the term hereof, TENANT shall pay to LANDLORD the
apportioned unearned premiums on all such policies of insurance then carried by
LANDLORD in respect of the Premises in the event TENANT continues with the
insurance policies placed in LANDLORD.
TENANT shall not violate nor permit to be violated any of the conditions
or provisions of any of said policies, and TENANT shall so perform and satisfy
the requirements of the companies writing such policies that at all times
companies of good standing and acceptable to LANDLORD shall be willing to write
and continue such insurance.
TENANT shall cooperate with LANDLORD in connection with the collection of
any insurance monies that may be due in the event of loss and shall execute and
deliver to LANDLORD such proofs of loss and other instruments that may be
required for the purpose of facilitating the recovery of any such insurance
monies, and in the event that TENANT shall fail or neglect so to cooperate or to
execute, acknowledge and deliver any such instrument, LANDLORD, in addition to
any other remedies, may as the agent or attorney-in-fact of TENANT, execute and
deliver any proof of loss or any other instruments as may seem desirable to
Page 23
LANDLORD and any mortgagee for the collection of such insurance monies. This
shall not be interpreted as any waiver of the obligations of TENANT under
Articles THIRTY, THIRTY-ONE, THIRTY-TWO and THIRTY-THREE hereof or exclusively
in favor of LANDLORD under Article THIRTY NINE hereof.
Thirty-four: Waivers - The receipt by LANDLORD of the rent, additional
rent, or any other sum or charges payable by TENANT with or without knowledge of
the breach of any covenant of this Contact, shall not be deemed a waiver of such
breach. No act or omission of LANDLORD or its agent during the term of this
Lease shall be deemed an acceptance of a surrender of the Premises and no
agreement to accept a surrender of the Premises shall be valid unless it be made
in writing and subscribed by LANDLORD. This Contract contains all the agreements
and conditions made between the parties hereto with respect to the Premises and
it cannot be changed orally. Any additions to, or charges in this Lease must be
in writing, signed by the party to be charged.
Failure on the part of LANDLORD to act or complain of any action or
nonaction on the part of TENANT shall not be deemed to be a waiver of any of its
respective rights hereunder nor constitute a waiver at any subsequent time of
the same provision. The consent or approval by LANDLORD to, or of any action by
the other requiring consent or approval, shall not be deemed to waive or render
unnecessary the consent or approval by LANDLORD of any subsequent similar act.
Thirty-five: Reinstatement - No receipt of monies by LANDLORD for TENANT
after the termination or cancellation hereof in any lawful manner shall
reinstate, continue or extend the term hereof, or affect any notice theretofore
given to TENANT, or operate as a waiver of the right of LANDLORD to enforce the
payment of rent, additional rent, or other charges then due or thereafter
falling due, or operate as a waiver of the right of by LANDLORD to recover
possession of the Premises proper suit, action, proceeding or remedy; it being
Page 24
agreed that, after the service of notice to terminate or cancel this Lease, and
the expiration of the time therein specified, if the default has not been cured
in the meantime, or after the commencement of suit, action or summary
proceedings or of any other remedy, or after a final order, warrant of judgment
of the possession of the Premises, LANDLORD may demand, receive and collect any
monies then due, or hereafter becoming due, without in any manner affecting such
notice, proceeding, suit, action, order, warrant or judgment; and any and all
such monies so collected shall be deemed to be payments for the use and
occupation of the Premises, or at the election of LANDLORD, on account of
TENANT'S liability hereunder. Delivery or acceptance of the keys to the
Premises, or any similar act, by the LANDLORD, or its agents or employees,
during the term hereof, shall not be deemed to be a delivery or an acceptance of
a surrender of the Premises unless LANDLORD shall explicitly consent to it, in
the manner set forth hereinbefore.
Thirty-six: Subordination and Attornment - This Lease is and shall be
subject and subordinate to all liens, or mortgages which may now or hereafter
affect the Premises and to all renewals, modifications, consolidations,
replacements and extensions thereof and, although this subordination provision
shall be deemed for all purposes to be automatic and effective without any
further instrument on the part of TENANT, TENANT shall execute any further
instrument requested by LANDLORD to confirm such subordination.
TENANT further covenants and agrees that it by reason of a default upon
the part of LANDLORD of any mortgage affecting the Premises, the mortgage is
terminated or foreclosed by summary proceedings or otherwise, TENANT will attorn
to the mortgagee or the purchaser in foreclosure proceedings, as the case may
be, and will recognize such mortgage or purchaser, as the TENANT'S landlord
under this Lease. TENANT agrees to execute and deliver, at any time and from
Page 25
time to time, upon the request of LANDLORD or of the mortgagee or the purchaser
in foreclosure proceedings, as the case may be, any reasonable instrument which
may be necessary or appropriate to evidence such attornment. TENANT further
waives the provision of any statute or rule of law now or hereafter in effect
which may give or purport to give TENANT any right of election to terminate this
lease or to surrender possession of the Premises demised hereby in the event any
such proceeding is brought by the holder of any such mortgage, and TENANT'S
obligations hereunder shall not be affected in any way whatsoever by any such
proceeding.
TENANT, covenants and agrees, upon demand of the holder of any mortgage
duly recorded or recordable in the corresponding Registry of the Property or of
any receiver duly appointed by the foreclose any such mortgage, to pay to the
holder of any such mortgage or to such receiver, as the case may be, all rent
becoming due under this Lease after such demand, provided such holder of any
such mortgage or any such receiver complies with the obligations of LANDLORD
under this Lease.
TENANT, upon request of LANDLORD or any holder of any mortgage or lien
affecting the Premises, shall from time to time, deliver or cause to be
delivered to LANDLORD or such lien holder or mortgagee, within ten (10) working
days from date of demand a certificate duly executed and acknowledged in form
for recording, without charges, certifying, if true, or to extent true, that
this Lease is valid and subsisting and in full force and effect and LANDLORD is
not in default under any of the terms of this Lease.
Thirty-seven: Late Payments and Payment by LANDLORD - In the event that
(i) TENANT makes late payment, or fails to make payments to LANDLORD, in whole
or in part, of the rent, or of the additional rent, or of any of the other
payments of money required to be paid by TENANT to LANDLORD, as stipulated in
this Lease, when and as due and payable; or if (ii) LANDLORD, without assuming
any obligation to do so, after any notice or grace period provided hereunder,
performs or causes to be performed, at the cost and expense of TENANT, any of
Page 26
the acts or obligations agreed to be performed by TENANT, as stipulated in this
Lease, and TENANT fails to refund LANDLORD any amounts of money paid or incurred
by LANDLORD in performing of causing the performance of such acts or
obligations, when and as due and payable, TENANT undertakes and agrees to pay
LANDLORD as additional rent, interest on such lately paid or unpaid rents,
additional rent, and/or on such other payments of money required to be paid,
and/or on any such amounts of money required to be refunded, from and after the
date when payment thereof matured or became due and payable, until full payment,
at the rate of twelve (12%) per cent per annum, or if such 12% interest, is
unlawful, then and in such event, at the highest maximum prevailing rate of
interest on commercial unsecured loans as fixed by the Board of Regulatory Rates
of Interest and Financial Charges, created under Law #1, approved October 15,
1973 (10 LPRA 998), as amended, or by any successor statute or regulation
thereof.
Thirty-eight: Abatement - If any substantial service or facility to be
provided by LANDLORD is unavailable for a period exceeding thirty (30) days and
LANDLORD has been notified of the same, should time unavailability of such
service render all or any portion of the Premises untenable, TENANT after the
aforesaid thirty (30) days, shall be entitled to an abatement of a portion of
the rent that shall reflect that portion of the Premises which is untenable,
provided the damage to the service or facility is not attributable to the act or
neglect of TENANT or the employees, servants, licensees, visitors, assigns or
undertenants of TENANT.
Page 27
Thirty-nine: Fire or other Casualty - If before or during the term of this
Lease, the Premises shall be damaged by fire or other casualty, LANDLORD after
written notice thereof is given by TENANT, shall repair the same with reasonable
dispatch after notice to it of the damage, due allowances being made for any
delay due to causes beyond the LANDLORD'S reasonable control, provided, however,
that LANDLORD shall not be required to repair or replace any furniture,
furnishings or other personal property which TENANT may have placed or installed
or which it may be entitled or required to remove from the Premises. LANDLORD
shall proceed with due diligence to obtain the corresponding insurance
adjustment of the loss and TENANT shall fully cooperate with LANDLORD and assist
in the adjustment of the loss. Until such repairs are completed, and provided
such damage or other casualty is not attributable to the act or neglect of
TENANT or the employees, servants, licensees, visitors, assigns or undertenants
of TENANT, the rent required to be paid pursuant to Article FOUR hereof, shall
be abated in proportion to the part of the Premises which are untenable. If the
building, be so damaged that LANDLORD shall decide to demolish and/or to
reconstruct the building, in whole or in part, LANDLORD may terminate this Lease
by notifying TENANT within a reasonable time after such damage of LANDLORD'S
election to terminate this Lease, such termination to be effective immediately
if the term shall not have commenced or on a date to be specified in such notice
if given during the term. In the event of the giving of such notice during the
term of this Lease, the rent shall be apportioned and paid up to the time of
such fire or other casualty if the Premises are damaged, or up to the specified
date of termination if the Premises are not damaged and LANDLORD shall not be
otherwise liable to TENANT for the value of the unexpired term of this Lease.
Page 28
Forty: Default Provisions - If, during the term of this Lease, TENANT
shall: (i) apply for or consent in writing to, the appointment of a receiver,
trustee or liquidator of TENANT or of all or substantially all of its assets or
(ii) seek relief under the Bankruptcy Act, or admit in writing its inability to
pay its debts as they become due, or (iii) make a general assignment for the
benefit of this creditors, or (iv) file a petition case or an answer seeking
relief (other than a reorganization not involving the liabilities of TENANT) or
arrangement with creditors, or take advantage of any insolvency law, or (v) file
an answer admitting the material allegations of a case filed against it in any
bankruptcy, reorganization or insolvency proceeding or, if an order, judgment or
decree shall be entered by any court of competent jurisdiction on the
application of TENANT or creditor adjudicating TENANT a bankrupt or insolvent,
or approving a petition seeking reorganization of TENANT (other than a
reorganization not involving the liabilities of TENANT) or appointment of a
receiver, trustee or liquidator of TENANT or of all or substantially all its
assets, and such order, judgment or decree, shall continue stayed and in effect
for any period of sixty (60) consecutive days, the term of this Lease and all
right, title and interest of TENANT hereunder shall expire as fully and
completely as if that day were the date herein specifically fixed for the
expiration of the term, and TENANT will then, quit and surrender the Premises to
LANDLORD, but TENANT shall remain liable as hereinafter provided.
If, during the term of this Lease: (i) TENANT shall default in fulfilling
any of the covenants of this Lease (other than the covenants for the payment of
rent or additional rent), or of any other standing contract with LANDLORD or
(ii) if, during the term of this Lease TENANT shall abandon, vacate, or remove
from the Premises the major portion of the goods, wares, equipment, or
furnishings usually kept on said premises, of (iii) this Lease, without the
Page 29
prior consent of LANDLORD, shall be encumbered, assigned or transferred in any
manner in whole or in part or shall, by operation of law, pass to or devolve
upon any third party, except as herein provided, or (iv) if TENANT is in
violation of laws, rules and regulations regarding minimum wages of its
employees, or of any other law, rules and regulations applicable to his
operations, but which have not been specifically mentioned in this Lease,
LANDLORD may give to TENANT notice of any such default or the happening of any
event referred to above and if at the expiration of thirty (30) days after the
service of such a notice the default or event upon which said notice was based
shall continue to exist, or in the case of a default which cannot with due
diligence be cured within a period of thirty (30) days, if TENANT fails to
proceed promptly after the service of such notice and with all due diligence to
cure the same and thereafter to prosecute the curing of such default with all
due diligence (it being intended that in connection with a default not
susceptible of being cured with due diligence within thirty (30) days that the
time of TENANT within which to cure the same shall be extended for such period
as may be necessary to complete the same with all due diligence), LANDLORD may
give to TENANT a notice of expiration of the term of this Lease as of the date
of the service of such second notice, and upon the giving of said notice of
expiration the term of this Lease and all right, title and interest of TENANT
hereunder shall expire as full and completely as if that day were the date
herein specifically fixed in the expiration of the term, and TENANT or any party
holding under his will then quit and surrender the Premises to LANDLORD, but
TENANT shall remain liable as hereinafter provided.
If, (i) TENANT shall default in the payment of the rent, the additional
rent, or of any other payment as required under this Lease and such default
shall continue for ten (10) working day's after notice thereof by LANDLORD, of
(ii) if the default of the payment of the rent, continues for thirty (30) days
Page 30
from the date any such payment became due and payable (AUTOMATIC DEFAULT
TERMINATION), or (iii) if this Lease shall terminate as in Paragraph one and two
of this Article provided, this Lease shall terminate and TENANT will then quit
and surrender the Premises to LANDLORD, but TENANT shall remain liable as
hereinafter provided, LANDLORD or LANDLORD's agents and servants may immediately
or at any time thereafter re-enter the Premises and remove all persons and all
or any property therefrom, whether by summary dispossess proceedings or by any
suitable action or proceeding at law, or with the license and permission of
TENANT which shall under this Contract be deemed given upon expiration of the
strict thirty (30) days notice period of subdivision of paragraph Two of this
Article, without LANDLORD being liable to indictment, prosecution or damages
therefor and repossess and enjoy the Premises with all additions, alterations
and improvements.
If TENANT shall fail to take possession of the Premises within ten (10)
days after the commencement of the term of this Lease, or if TENANT shall vacate
and abandon the Premises, LANDLORD shall have the right, at LANDLORD'S option,
to terminate this Lease and the term hereof, as well as all the right, title and
interest of TENANT hereunder, by giving TENANT five (5) days notice in writing
of such intention, and upon the expiration of the time fixed in such latter
notice, if such default be not cured prior thereto, this lease and the term
hereof, as well as all the right, title and interest of TENANT hereunder, shall
wholly cease and expire in the same manner and with the same force and effect
(except as to TENANT'S liability) as if the date fixed by such latter notice
were the expiration of the herein originally granted; and TENANT shall
immediately quit and surrender to LANDLORD the Premises and each and every part
thereof and LANDLORD may enter into or repossess the Premises, either by force,
summary proceedings or otherwise. The right granted to LANDLORD in this Article
Page 31
or any other Article of this Lease to terminate this Lease, shall apply to any
extension or renewal of the term hereby granted, and the exercise of any such
right by LANDLORD during the term hereby granted, shall terminate any extension
or renewal of the term hereby granted and any right on the part of TENANT
thereto.
Upon the termination of this Lease by reason of any of the foregoing
event, or in the event of the termination of this Lease by summary dispossess
proceedings or under any provisions of law, now or at any time hereafter, in
force by reason of, or based upon, or arising out of a default under or breach
of this Lease on the part of "TENANT", or upon LANDLORD recovering possession of
the Premises in the manner or in any of the circumstances hereinbefore
mentioned, or in any other manner or circumstances whatsoever, whether with or
without legal proceedings, by reason of, or based upon, or arising out of a
default under or breach of this Lease on the part of TENANT, LANDLORD, at its
option, but without assuming any obligation to do so in any case, may at any
time, and from time to time, relet the Premises or any part or parts thereof for
the account of TENANT or otherwise on such terms as LANDLORD may elect,
including the granting of concessions, and receive and collect the rents
therefor, applying the same at a rental not higher than the one stipulated in
this Contract, first to the payment of such reasonable expenses as LANDLORD may
have incurred in recovering possession of the Premises, including reasonable
legal expenses, and for putting the same into good order or condition or
preparing or altering the same for re-rental, and expenses, commissions and
charges paid, assumed, or incurred by LANDLORD in and about the reletting of the
Premises or any portion thereof and then to the fulfillment of the covenants of
TENANT hereunder. Any such reletting herein provided for, may be for the
Page 32
remainder of the term of this Lease or for a longer or shorter period or at a
higher or lower rental. In any such case, whether or not, the Premises or any
part thereof be relet, TENANT shall pay to LANDLORD the rent required to be paid
by TENANT up to the time of such termination of this Lease, and/or the full rent
provided for in the agreement for any holdover of such period after termination
and up to the surrender or recovery of possession of the Premises by LANDLORD,
as the case may be, and thereafter TENANT covenants and agrees, to pay to
LANDLORD until the end of the term of this Lease as originally demised the
equivalent of any deficiency amount of all the rent reserved herein, less the
net avails of reletting, if any, as specified hereinabove in this Article and
the same shall be due and payable by TENANT to LANDLORD as provided herein, that
is to say, TENANT shall pay to LANDLORD the amount of any deficiency then
existing.
Forty-one: LANDLORD'S Remedies - In the event TENANT shall default in the
performance of any of the terms, covenants or provisions herein contained,
LANDLORD may, but without the obligation to do so, perform the same for the
account of TENANT and any amount paid or expense incurred by LANDLORD in the
performance of the same shall be repaid by TENANT on demand. In the event of a
breach or threatened breach by TENANT or any subtenant or other person holding
or claiming under TENANT of any of the covenants, conditions or provisions
hereof, LANDLORD shall have the right of injunction to restrain the same, and
the right to invoke any remedy allowed by law or in equity as if specific
remedies, indemnity or reimbursement were not herein provided for. The rights
and remedies given to LANDLORD in this Lease are distinct, separate and
cumulative, and no one of them, whether or not exercised by LANDLORD, shall be
deemed to be a waiver, or an exclusion of any of the others.
Page 33
Forty-two: Notice if Default - Anything in this Lease to the contrary
notwithstanding, it is specifically agreed that there shall be no enforceable
default against LANDLORD under any provisions of this Lease, unless notice of
such default be given by TENANT to LANDLORD in which TENANT shall specify the
default or omission complained of, and LANDLORD shall have thirty (30) days
after receipt of such notice in which to remedy such default, or if said default
or omission shall be of such a nature that the same cannot be cured within said
period, then the same shall not be an enforceable default if LANDLORD shall have
commenced taking the necessary steps to cure or remedy said default within the
said thirty (30) days and diligently proceeds with the correction thereof.
Forty-three: Capitalization - For the purpose of this Contract,
specifically of Article SIX, Capitalization includes the total of owners equity
sources (preferred stock, common stock and surplus accounts) plus long-term
debts, it being agreed and understood that the amortization of any such debt
shall in no way diminish the amount originally determined as capitalization.
Forty-four: Disclosure of Information - TENANT agrees to furnish to
LANDLORD within ninety (90) days after the expiration of each fiscal year of
TENANT, an annual statement certified by an independent Certified Public
Accountant showing as of the end of each such fiscal year: (i) TENANT'S paid-in
capital, (ii) long-term debts and capitalization as required by Articles SIX and
FORTY-THREE hereof, (iii) investment in machinery and its capacity to provide
employment, (iv) taxes (including Social Security taxes) paid, and (v) any other
information as required by this Lease.
In the event such statement is not filed with LANDLORD as herein provided,
LANDLORD may obtain such information from TENANT at TENANT'S expense, and for
such purpose TENANT shall make available to LANDLORD'S designated
Page 34
representatives, its books of accounts and other necessary data and facilities,
all of which shall be provided and made available at TENANT'S principal office
in Puerto Rico.
Forty-five: Automatic Renewal - In the event TENANT does not vacate the
Premises in the manner and under the conditions hereinbefore provided, within
ninety (90) days after the normal expiration of the term hereof, LANDLORD shall
have the option to be exercised at any time thereafter, to notify TENANT that
the lease herein has been renewed for an additional term of five (5) years from
the date of the last normal expiration of the term hereof and, in such event,
the parties agree that this Contract shall be held to have been renewed and to
continue in full force and effect for such additional term of five (5) years
upon the mere mailing of such notice by LANDLORD to TENANT. This provision shall
in no way prejudice, affect or deny any right which LANDLORD may otherwise have
because, or at the time, of any such termination of the term hereof,
particularly whenever LANDLORD does not exercise such option; it being agreed
and understood that such renewal shall be upon the same terms and conditions
contained herein except that the rental rate to be charged shall be the rate
then currently being charged by LANDLORD for similar building in the area, but
in no event shall it be less than the rate herein stipulated.
Forty-six: Partial Invalidity and Applicable Law - If any term or
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 and the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Lease shall
Page 35
be valid and be enforceable to the fullest extent permitted by law. This
Contract is entered into and shall be interpreted in accordance with the laws of
the Commonwealth of Puerto Rico.
Forty-seven: Lease Termination and Holding Over - Upon the expiration or
termination of this Lease:
(i) TENANT shall inform LANDLORD in writing of TENANT activities
affecting each or any environmental area of concern during the period of
TENANT'S operation, including a description from an environmental
standpoint of the physical conditions of the premises and landsite. TENANT
shall also inform to LANDLORD in writing of any environmental regulatory
violations, compliance plans, permits, closure plans, clear-up actions or
any other regulatory procedures related to the operation In the extent
that the information reveals TENANT'S noncompliance of any of the above,
or in the event that a physical inspection of the Premises and adjacent
areas by LANDLORD, or any other source of information reveal the
possibility of contamination, in that event, TENANT shall, at LANDLORD'S
request submit a plan of action with the appropriate financial provisions
to execute it. LANDLORD shall hold TENANT responsible for any and all
environmental damage, or any damage to third parties as a result in any
environmental damage, or any remedial action (including monitoring) to be
performed at landsite or otherwise as a result of TENANT'S operations
after termination of Leases until such a time as complete remediation or
fulfillment of TENANT'S obligations is effected. In case TENANT fails to
comply with the foregoing provisions, LANDLORD may elect to effect them at
TENANT'S expense and responsibility.
(ii) TENANT shall remove all hazardous and toxic substances
belonging to TENANT or to a third party. TENANT shall also remove all
other property of TENANT and that of any third party and failing so to do,
TENANT hereby appoints LANDLORD its agent so that LANDLORD may cause all
of the said
Page 36
property to be removed at the expense and risk of TENANT. TENANT covenants
and agrees to give full and timely observance and compliance to this
covenant to remove all its property and surrender the Premises broom
clean. TENANT hereby agrees to pay all reasonable necessary cost and
expenses thereby incurred by LANDLORD. If, as the sole result of the
removal of TENANT'S property any portion of the Additional Premises or of
the building of which they are a part, are damaged, TENANT shall pay to
LANDLORD the reasonable cost of repairing such damages unless due to the
negligence of LANDLORD, its agents, servants, employees and contractors.
TENANT'S obligation to observe or perform this covenant shall survive the
expiration or other termination of the term of this Lease.
Forty-eight: Change of Address - TENANT shall promptly notify LANDLORD of
any change in the addresses other than those required from it in Article SEVEN
hereof.
Forty-nine: TENANT will indemnify LANDLORD for any and all liability,
loss, damages, expenses, penalties and/or fines, and any additional expenses
including any attorney fees LANDLORD may suffer as a result of claims, lawsuits,
demands, administrative orders, costs, resolutions or judgments against it
arising out of negligence and/or failure of TENANT or those acting under TENANT
to conform to the statutes, ordinances, or other regulations or requirements of
any governmental authority, be it Federal, of the Commonwealth of Puerto Rico,
its instrumentalities or public corporations, in connection with the performance
of this Lease.
Fifty: Inasmuch as TENANT is currently in possession of Project No.
T-0810-0-68 pursuant to a Lease Contract dated June 30, 1994 entered into
between LANDLORD and TENANT, TENANT accepts Project No. T-0810-0-68 in its
present condition.
Page 37
Fifty-one: Construction Clauses:
(a) A definite manufacturing project must be submitted to LANDLORD
through LANDLORD's Continental and International Industrial Promotions
Area or the proper evaluation and approval.
(b) The project must be favorably recommended by LANDLORD's Planning
and Environmental Division and Office of Economic Research and by the
Puerto Rico Aqueducts and Sewers Authority and the Puerto Rico Planning
Board. (
(c) The building extension with an area of approximately 5,400
square feet built by Xxxxx Xxxxxxx del Caribe, Inc., in 1993 will be
included as part of the leased premises and will be identified as Project
No. 1-0810-1-02.
(d) LANDLORD will obtain the necessary permits from all concerned
government agencies for the construction of the new building extension.
The Use Permit shall be TENANT'S responsibility. LANDLORD and TENANT will
enter into a new Lease Contract covering Projects Nos. 1-0810-0-68 and
1-0810-1-02.
(e) The rental payments for Project No. 1-0810-1-02 shall not
commence until the first day of the month following the date of delivery
to TENANT of the new building extension to be built by LANDLORD. The
rental payments for Project No. 1-0810-0-68 shall remain at the current
rate of $2.75 per square foot per annum until June 30, 2004 or the date of
commencement of rental payments for the new building extension, whichever
comes first. The rental rate for Projects Nos. 1-0810-0-68 and
1-0810-1-02, and for the new building extension shall at the rate of $3.85
per square foot per annum
Page 38
during a period of fifteen (15) years commencing on the first day of the
month following the date of delivery of the new building extension of
TENANT
(f) The new rental rate for Project Nos. 1-0810-0-68 and
1-0810-1-02, and for the new building extension, is based on the estimated
construction cost of the new building extension, plus other expenses
related to the construction which have already been incurred by LANDLORD.
In the event that after completion of the construction project, any change
order are implemented which may increase the estimated construction costs,
LANDLORD will adjust the rental rate of $3.85 per square foot per annual
on the basis of the actual construction costs incurred to complete the
construction of the new building extension. Any and all change orders for
this construction project shall be subject to the approval in writing of
the director of Operations of TENANT and of LANDLORD.
(g) Completion of minor details of construction or the correction of
construction defects which do not impede occupancy or other activities
related to the installation of machinery and equipment, and the
commencement of industrial operations in the new building extension, shall
in no way affect the date of completion of the construction project.
(h) In the event TENANT should decide to cease manufacturing
operations in Puerto Rico prior to the expiration of the fifteen-year
lease term under the new Lease Contract, TENANT shall reimburse LANDLORD
for the unamortized portion of the construction portion of the
construction costs for the new building extension. The construction
portion of the
Page 39
construction costs for the new building extension is estimated to the
$526,500.00, which amount shall be amortized on a straight-line basis over
a period of fifteen (15) years. In the event of an early cessation of
manufacturing operations by TENANT, both LANDLORD and TENANT shall
exercise their best efforts to identify and secure a new tenant for the
leased premises.
(i) Should this construction project be cancelled prior to its
completion, TENANT shall reimburse LANDLORD for the design fees and other
construction costs incurred by LANDLORD, subject to the presentation by
LANDLORD to TENANT of adequate evidence that such expenditures relating to
this construction project were made.
(j) Any special facilities required for the new building extension,
including, but not limited to, landscaping, shall be at TENANT sole cost
and expense.
Fifty-two: Anything contained in this Contract to the contrary
notwithstanding, in the event that TENANT requires additional volume of water
and/or pressure as is now available within the area wherein the demised premises
are located, it shall be at its own cost and expense the construction and/or
installation of such improvements and/or facilities as may be necessary to or
Page 40
convenient and/or required by the Puerto Rico Aqueduct and Sewer Authority to
increase such volume and/or pressure; it being agreed and understood, however,
that such construction and/or installation shall in no event be commenced until
after LANDLORD'S written approval has first been requested and obtained.
Fifty-three: TENANT hereby acknowledges that in the industrial park there
are other industries; theretofore TENANT hereby specifically agrees and
undertakes to take such steps and install such equipment as may be necessary to
prevent that any hazard and/or noise which may be created by its operations may
in any way or manner unduly affect the operations of the other industries and
therefore TENANT hereby releases and saves LANDLORD harmless from any and all
claims or demands arising therefrom or in connection therewith.
Fifty-four: TENANT shall, at its own cost and expense, install a fire
protection system and shall obtain the endorsement and approval from said Fire
Department for such installation. TENANT must also provide security measures to
prevent or reduce fire hazard due to the storage of inflammable materials and
products.
Fifty-five: TENANT shall procure and obtain a permit for the operation of
a solid waste emission source from the Environmental Quality Board and
authorization for the Office of Solid Waste and/or from the Municipality of
Aoasco for the final disposition of wastes.
Fifty-six: TENANT, at its own cost and expense, shall implement the
necessary measures and install the control equipment to maintain the atmospheric
air quality levels in compliance with the environmental laws and regulations of
the Environmental Quality Board and the Environmental Protection Agency, as
promulgated by any succeeding law or regulations.
Fifty-seven: It is hereby agreed and understood that TENANT shall take the
necessary steps to comply with the regulations and law requirements of the
PUERTO RICO OCCUPATIONAL SAFETY AND HEALTH OFFICE (PROSHO).
Page 41
Fifty-eight: TENANT shall, at is own cost and expense, construct and/or
install all necessary equipment required to connect the buildings electrical
system to the Puerto Rico Electrical Power Authority's electrical distribution
lines, such connection to be made in compliance with the requirement of PREPA.
Fifty-nine: TENANT must comply with the rules and regulations of
pre-treatment established by the Puerto Rico Aqueduct and Sewer Authority, the
Environmental Quality Board and the Environmental Protection Agency related to
the effluent industrial discharge in the sanitary sewer system and their final
disposition. Also, any improvement necessary to provide pre-treatment facilities
for the above mentioned effluents shall be at TENANT'S own cost and expense and
in coordination and with the approval of LANDLORD's Engineering and Maintenance
Departments.
Sixty: It is hereby agreed and understood that TENANT at its own cost and
expense, shall install an air conditioning system in the demised premises, in
the event TENANT needs to use and/or install it in his process. Such air
conditioning system shall be considered as a special facility from LANDLORD, and
it shall be installed in coordination with LANDLORD'S Engineering and
Maintenance Departments.
Sixty-one: TENANT agrees to submit to LANDLORD within thirty (30) days
from the date of execution of this Contract: (a) evidence of its registration in
the Department of State of the Commonwealth of Puerto Rico and the name and
address of its resident agent; and (b) a certificate of a resolution of its
Board of Directors either authorizing or ratifying the execution of this
Contract.
Sixty-two: TENANT certifies and guarantees that at the date of subscribing
this Contract it has submitted the Corporate Tax Returns Forms during the last
five (5) years and does not have any tax debt pending with the Commonwealth of
Puerto Rico, or is complying with the terms of a payment plan duly approved.
Page 42
TENANT also certifies and guarantees that at the date of execution of this
contract it has paid unemployment insurance compensation, temporary disability
insurance, and the driver's social security (as applicable); or is complying
with a payment plan duly approved.
TENANT acknowledges that this is an essential condition of the Contract
and if the above certification is incorrect in any of its parts, LANDLORD may
cancel this contract.
Sixty-three: LANDLORD reserves the right to audit the leased premises from
time to time during the term of this contract, as LANDLORD may deem necessary,
in order to assess all aspects of the environmental condition of said premises
and TENANT'S compliance with all environmental legislation and regulations,
under Commonwealth and federal law; TENANT hereby agrees to provide access to
all areas and structures of the premises for these purposes, upon LANDLORD's
request, and to also provide access to all books, records, documents and
instruments which LANDLORD may deem necessary in order to fully audit the
premises as herein stated.
Sixty-four: TENANT shall furnish to LANDLORD, in addition to any other
information, documents or instruments that may be required in this contract:
(a) Prompt written notice of the occurrence of any event that by law
or regulation would require any oral, telephonic or written notice or
communication to the US Environmental Protection Agency and/or to the
Puerto Rico Environmental Quality Board, or any successor agency, and
copies of all orders, notices or other communications and reports
received, made or given in connection with any such event, and any
enforcement action taken against TENANT or against any property owned,
occupied or used by TENANT;
Page 43
(b) Quarterly certifications subscribed by an authorized
representative designated by TENANT, as to the environmental condition of
the leased premises, containing the information required by LANDLORD,
which is specified in the form included as Schedule "B" of this contract,
or any subsequent modification thereto;
(c) Any other information and documents relating to TENANT's
compliance with environmental legislation and regulations under federal
and commonwealth laws.
Sixty-five: TENANT hereby guarantees to LANDLORD that, neither he, or any
of its stockholders, in case of a corporation, owes any money to LANDLORD under
its corporate name or any other corporate name and/or person.
Sixty-six: TENANT shall not transfer, lease, burden or dispose of in any
way of the equipment used on its operations without the previous written notice
of LANDLORD.
Sixty-seven: TENANT shall not sell, lease or transfer in any way its
operations to any other tenant without the previous written consent of LANDLORD,
except as established on clause Twenty-Six.
Sixty-eight: TENANT recognizes and accepts that this Contract is subject
to the endorsement of the Puerto Rico Aqueduct and Sewer Authority (PRASA). Said
endorsement have been requested by LANDLORD and is under evaluation at this
moment.
Page 44
Sixty-nine: LANDLORD agrees to indemnify and save harmless TENANT,
TENANT'S successors and assigns and TENANT'S present and future officers,
directors, employees and agents (collectively "Indemnitees") from and against
any and all liabilities, penalties, fines, forfeitures, demands, damages,
losses, claims, causes of action, suits, judgments, and costs and expenses
incidental thereto (including cost of defense, settlement, reasonable attorney's
fees, reasonable consultant's fees and reasonable expert fees), which TENANT or
any or all of the Indemnitees may hereafter suffer, incur, be responsible for or
disburse as a result of Environmental Liabilities directly or indirectly cause
by LANDLORD when the premises were in its control (collectively "Environmental
Liabilities") directly or indirectly caused by or arising out of any
Environmental Hazards existing on or about the premises except to the extent
that any such existence is caused by TENANT'S activities on the premises. The
term "Environmental Hazardous" shall be defined as hazardous substances,
hazardous wastes, pollutants, asbestos, polychlorinated biphenyls (PCBs),
petroleum or other fuels (including crude oil or any faction or derivative
thereof) and underground storage tanks. The term "hazardous substances" shall be
as defined in the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C Section 9601 et seq) (CERCLA), and any regulations
promulgated pursuant thereto. The term "hazardous wastes" shall be as defined in
the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq)
(RCRA), and any regulations promulgated pursuant thereto. The term "pollutants"
shall be as defined in the Clean Water Act (33 U.S.C. Section 1251 et seq), and
any regulations promulgated pursuant thereto This provision shall survive
termination of the lease.
TENANT agrees to indemnify and save harmless LANDLORD, LANDLORD's
successors and assigns and LANDLORD'S present and future officers, directors,
employees and agents (collectively "Indemnities") from and against any and all
Page 45
liabilities, penalties, fines forfeitures, demands, damages, losses, claims,
causes of action, suits, judgments, and costs and expenses incidental thereto
(including cost of defense, settlement, reasonable attorney's fees, reasonable
consultant fees and reasonable expert fees), which LANDLORD or any or all of the
Indemnitees may hereafter suffer, incur, be responsible for or disburse as a
result of any Environmental Liabilities directly or indirectly caused by or
arising out of Environmental Hazardous existing on or about the premises but
only to the extent that any such existence is caused by TENANT's activities on
the premises. This provision shall survive termination of the Lease.
In the event any Environmental Hazards are found at any time to be in
existence or about the premises other than any Environmental Hazards whose
existence is caused by TENANT's activities on the premises, TENANT shall have
the right to terminate this Lease by so notifying LANDLORD in writing.
Notwithstanding anything to the contrary contained herein, TENANT shall not be
required to pay for any environmental Liability as operating expenses,
additional rental or otherwise if TENANT is not responsible for such expenses
pursuant to this paragraph.
IN WITNESS WHEROF, LANDLORD and TENANT have respectfully signed upon
proper authority this Construction and Lease Contract, this 11 day of April
2003.
PUERTO RICO INDUSTRIAL DEVELOPMENT COMPANY
SSP# 00-0000000
BY:[Signature Unreadable]
--------------------
INTEGRA NEUROSCIENCES P.R., INC. (INTEGRA P.R.)
SSP# ###-##-####
BY:/s/ Xxxx X. Xxxxxxxx, III
-------------------------
Vice President
Page 46
SCHEDULE "A"
DESCRIPTION OF PARCEL OF LAND
LOT NO. 6 LOCATED AT URBAN ZONE INDUSTRIAL AREA
ANASCO, PUERTO RICO
SITE FOR PROJECT NO. L-154-2-62
Parcel of land, Lot No 6, located at urban Zone Industrial Area,
Aoasco, Puerto Rico.
It bounds: by the North with Street "A" of the same industrial area,
by the south with Lot No. 6-1 of the same industrial area, by the East with
Xxxxx Xxxx Xx. 000; and by the West with Lot No. 8 of the same industrial area.
It has an approximate surface area of 2,518.59 square meters
equivalent to 0.6408 cuerdas.
It is affected by a 5.0 feet wide strip in favor of PREPA, running
along the western boundary.
Page 47
SCHEDULE `B'
COMPLIANCE REPORT OF WITH
ENVIRONMENTAL REQUIREMENTS
In the period of __________ to __________
I. PERMITS
PERMITS NUMBER EXPIRATION RENEWAL DATE
DATE
(IF APPLY)
II. COMPLIANCE ACTIONS
REFERENCE/CASE NUMBER DATE RESPONSE OF
DATE OF
III. CERTIFICATION
I certify, under penalty of law, that this document was prepared under my
supervision and direction; and that was based in my investigation by the persons
directly responsible of gathering the information, that the information here
submitted is, according to my best judgment, certain, complete and precise.
Page 48
