Exhibit 10.19
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 8th day of October, 2001, is by and
between HIGH TECHNOLOGY OF ROCHESTER, INC. ("Landlord"), and Biophan
Technologies, Inc.("Tenant").
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord,
the leased premises described below on the following terms and conditions:
1. Leased Premises. The leased premises contains approximately 4,000
square feet of rentable space as shown on the floor plan attached as Exhibit
"A" (the "Leased Premises"), and is located in Suite 215 on the 2nd floor of
the building (the "Building") shown on the site plans described in Exhibit
"B" ("Site Plan") and located at 150 Xxxxxx Xxxxxx Drive (Tax Map No. 174.02-
1-035) in the Town of Xxxxxxxxx, Monroe County, New York, together with the
right to use, in common with Landlord and the other tenants of the "Property"
(as defined below), the parking area shown on the Site Plan and the hallways,
stairs, elevators, lunchroom, lobby and public restrooms within the Building
(collectively the "Common Areas"). The Common Areas and all other land and
improvements located at 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx (Tax Map
No. 174.02-1-035), including the Building and the Leased Premises, shall be
referred to in the aggregate as the "Property". The rentable space of the
Leased Premises is measured pursuant to the Standard Method for Measuring
Floor Area in Office Buildings published by Building Owners and Managers
Association International.
2. Term. Subject to the provisions of Section 4 below, the term of
this Lease ("Lease Term") shall commence on October 1, 2001 (the
"Commencement Date"), and shall terminate on September 30, 2004. Tenant may
choose to terminate Lease prior to September 30, 2004 after one full year of
occupancy. At any time after September 30, 2002, Tenant may terminate this
Lease upon ninety (90) days prior written notice to Landlord. In the event
Tenant exercises this right to terminate, this Lease shall terminate ninety
(90) days after receipt by Landlord of such written notice.
3. Possession. On the Commencement Date, Tenant shall have the right
to enter into sole possession of the Leased Premises. Upon the expiration or
other termination of this Lease, Tenant shall remove all of its personal
property and quit and surrender the Leased Premises to the Landlord, broom
clean.
4. Leasehold Improvements.
a. Landlord has, at its sole expense, constructed the Building
pursuant to the Site Plan and has built out the Leased Premises pursuant to
the plans and specifications attached as Exhibit "D" ("Plans and
Specifications"). Landlord shall perform the work described in the Plans and
Specifications at Landlord's sole expense, except for those specific items of
work and/or improvements described in Exhibit "E" which shall be paid for by
Tenant at the time or times specified in Exhibit "E". Tenant shall also be
responsible for any additional costs caused by changes to the Plans and
Specifications which are requested by Tenant and agreed to by Landlord, in
Landlord's sole discretion. Landlord may modify the Plans and Specifications
to comply with the requirements or recommendations of any governmental
authority or public utility, provided such changes do not cause a substantial
deviation from those attached to this Lease. All work shall be performed in
a good and workmanlike manner and in compliance with all applicable laws.
b. Does not apply.
c. Tenant's initial occupancy of the Leased Premises shall be deemed
an acknowledgement that the Leased Premises are in good and tenantable
condition.
5. Rent.
a. Beginning on the Commencement Date, Tenant shall pay to Landlord,
without offset or deduction, an annual rental ("Base Rent") payable in equal
monthly installments to be made in advance on the first day of each and every
month during the Lease Term and pro rata, in advance, for any partial month
as set forth below:
Months Annual Base Rent Monthly Installments
1 - 12 $35,200.00 $2,933.33
13 - 24 $39,200.00 $3,266.66
25 - 36 $43,000.00 $3,583.33
b. All costs and expenses which Tenant agrees to pay to Landlord
pursuant to this Lease other than Base Rent shall be deemed "Additional Rent"
and, in the event of non-payment thereof, Landlord shall have all the rights
and remedies available in case of non-payment of Base Rent. As used herein,
the term "Rent" shall mean, collectively, Base Rent and Additional Rent.
c. Any payment of Rent which is not received by Landlord within five
(5) days after it is due shall be accompanied by a "late charge" equal to
five percent (5%) of such payment.
6. Real Estate Taxes and Operating Expenses.
a. During the Lease Term, Tenant shall pay Landlord as Additional Rent
"Tenant's Pro Rata Share" of (i) the "Operating Expenses" allocable to the
Property from July 1 to June 30 during each year of the Lease Term and (ii)
the amount by which "Real Estate Taxes" allocable to the Property from July 1
to June 30 during each year of the Lease Term increase over the "Real Estate
Taxes" allocable to the Property during July 1, 1998 to June 30, 1999 (the
"Tax Base Year"). For the purposes of this Section 6:
(i) Real Estate Taxes shall mean the aggregate amount of taxes and
assessments levied, assessed or imposed upon the Property
including, without limitation, water charges, pure waters charges
and other governmental charges, general, special, ordinary and
extraordinary, and including any tax which shall be in
substitution of or in addition to taxes now levied, assessed or
imposed on the Property. In the event the Property or the
Building are granted any real estate tax exemption or abatement
but payments in lieu of taxes are made to the taxing authority
pursuant to a written agreement, such payments in lieu of taxes
shall be deemed Real Estate Taxes.
(ii) Operating Expenses shall consist of all expenses incurred by
Landlord relating to the operation, repair and maintenance of the
Property computed on the accrual basis and determined in
accordance with generally accepted accounting principles
consistently applied, including, without limitation, premiums for
all insurance carried by Landlord in connection with the
Property; wages, salaries and related expenses of all personnel
engaged in the operation, maintenance and repair of the Property;
all supplies and materials used in the operation, maintenance and
repair of the Property; cost of utilities; cost of all
maintenance and service agreements; accounting costs; any and all
Common Area maintenance and repair costs; and amortization of the
costs, together with reasonable financing charges, of capital
investment items which are primarily for the purpose of reducing
operating expenses or which may be required by a governmental
authority. The Operating Expenses shall not include any of the
expenses associated with High Technology of Rochester's venture
development program.
(iii) Tenant's Pro Rata Share shall be a fraction, the numerator
of which shall be the number of rentable square feet of the Leased
Premises, and the denominator of which shall be the total number
of rentable square feet contained in the Building.
b. The payment of Additional Rent required by this Section 6 shall
be administrated as follows:
(i) In June of each year, Landlord shall estimate for its next
July 1 to June 30 fiscal year ("Annual Estimate") the annual
increase in Operating Expenses and increase in Real Estate Taxes
over the Base Year ("Real Estate Tax Increase"). Landlord has
notified Tenant of the current Annual Estimate and shall notify
Tenant of every other Annual Estimate on or before June 16 of
each year during the Lease Term. Throughout the Lease Term,
Tenant shall pay Tenant's Pro Rata Share of the then current
Annual Estimate in equal monthly installments, along with the
monthly Base Rent payment, all without setoff or deduction.
(ii) In September of each year during the Lease Term, Landlord
shall determine the actual Operating Expenses and the actual Real
Estate Tax Increase. On or before September 15 of each year
during the Lease Term, Landlord shall deliver to Tenant the
annual statement of Operating Expenses and the Real Estate Tax
Increase accompanied by a detailed written breakdown of the
Operating Expenses incurred for the previous July 1 to June 30
fiscal year. If the actual Operating Expenses and Real Estate
Tax Increase exceeds the Annual Estimate, Tenant shall pay with
the next monthly Base Rent payment due, Tenant's Pro Rata Share
of such excess to Landlord, except if this Lease has terminated,
Tenant's payment shall be due within fourteen (14) days after
Tenant receives the Landlord's statement. If the actual
Operating Expenses and Real Estate Tax Increase are less than the
Annual Estimate, then Landlord shall either (1) credit the
overpayment to Tenant against future Additional Rent payments due
under this Section 6 or (2) return such overpayment within 30
days after Tenant receives the Landlord's written statement.
(iii) Any liability of Landlord or Tenant relating to the
reconciliation of Additional Rent payments under this Section 6
shall survive the termination of this Lease.
7. Use.
a. Tenant shall use the Leased Premises for general office use and for
no other purpose.
b. Tenant shall not use or permit anything to be done in or about the
Leased Premises which will violate any applicable law, statute, ordinance or
governmental rule or regulation or requirement now in force or hereafter in
effect during the Lease Term, including, but not limited to, the Americans
with Disabilities Act and all environmental laws and regulations
(collectively "Governmental Regulations"). Tenant at its sole expense, will
comply with all Governmental Regulations relating to or affecting the
condition, use or occupancy of the Leased Premises during the Lease Term.
Landlord represents and warrants that the Leased Premises currently complies
with all applicable Government Regulations.
c. Tenant shall not cause or permit any hazardous materials to be
released, brought upon, stored, produced, emitted, disposed of or used upon,
about or beneath the Premises by Tenant, its agents, employees, contractors
or invitees except those hazardous materials customarily used in the conduct
of general administrative office activities (e.g. copier fluids and cleaning
supplies), provided that such use and storage is in full compliance with all
applicable Governmental Regulations. Tenant shall defend, indemnify and hold
Landlord harmless from and against any and all damage, loss, claim,
obligation, liability, cost (including attorneys' fees and expenses),
expense, deficiency and interest charges (collectively "Loss and Expense")
which arise from the presence upon, about or beneath the Premises of any
hazardous materials which are released, brought upon, stored, produced,
emitted, disposed of or used upon, about or beneath the Leased Premises by
Tenant, its employees, servants, customers, invitees, subtenants, licensees
or contractors.
8. Alterations. Tenant shall not make any alterations, repairs,
additions, improvements or other changes to the Leased Premises or the
Property or install any signs thereon ("Alterations") without the advance
written consent of Landlord in each and every instance. Before any work is
performed or materials are delivered on the Leased Premises or the Property,
Tenant shall comply with Landlord's request for plans, specifications, names
of contractors, necessary permits and indemnifications against liens, costs,
damages and expenses of any kind and shall submit to Landlord's supervision
of operations during construction. Any Alterations shall be completed at
Tenant's sole expense and shall belong to Landlord when this Lease ends,
unless Landlord elects to require Tenant to remove the Alterations and repair
any damage caused by their removal. Tenant may remove its trade fixtures,
furniture, equipment and other personal property that does not constitute
Alterations if Tenant promptly repairs any damage caused by the removal.
9. Repairs.
a. Landlord shall (subject to the charge for Additional Rent contained
in Section 6) make all required structural repairs and replacements to the
Property.
b. Tenant shall take good care of the Leased Premises, including the
performance of all necessary nonstructural repairs to the Leased Premises,
and shall be responsible for the maintenance, repair and replacement of its
trade fixtures, including wallpaper, painting and other items of a cosmetic
nature.
10. Services.
a. Subject to the charge for Additional Rent contained in Section 6,
Landlord shall provide a dumpster on the Property for trash disposal, and
shall provide to the Property the following services:
(i) water, gas and electricity;
(ii) exterior window cleaning;
(iii) cleaning and maintenance of Common Areas;
(iv) snow plowing of the parking area and maintenance of the
grounds surrounding the Building, including normal snow and ice
removal from walkways; and
(v) security, maintenance, and operating personnel as
determined necessary by the Landlord for the safe and efficient
operation of the Building.
b. Tenant shall pay the cost of all other services and utilities
necessary for its use and maintenance of the Leased Premises. If Tenant
installs any machinery, equipment, or apparatus which consumes inordinate
amounts of water, gas or electricity, Tenant shall pay as Additional Rent the
excess cost related to such use as reasonably determined by Landlord, which
payment shall be due at the same time regular Base Rent payments are due.
11. Liability.
a. Landlord shall not be liable for any damage to the person or
property of Tenant by theft or from any other cause whatsoever, or for any
injury or damage to persons or property or loss or interruption to business
resulting from fire, explosion, falling plaster, steam, gas, electricity,
water, rain or snow, or leaks from any part of the Building or from the
pipes, appliances, or plumbing works or from the roof, street, or subsurface,
or from any other place, or dampness or by any other cause unless caused by
or due to the negligence of Landlord.
b. To the extent permitted by law, Tenant covenants and agrees to
defend, indemnify and hold Landlord harmless from and against all Loss and
Expense incurred or suffered by Landlord for personal injury, disease, death,
property damage, or otherwise arising out of (i) Tenant's failure to comply
with its obligations under this Lease and/or (ii) the occupancy by Tenant or
any person or entity claiming under Tenant of the Property or any part
thereof. Tenant's obligations pursuant to this Subsection 11.b shall survive
the termination of this Lease.
12. Insurance.
a. Landlord shall (subject to the charge for Additional Rent contained
in Section 6), procure and maintain during the Lease Term, fire and hazard
insurance, and comprehensive general liability insurance policies covering
the Property in amounts deemed appropriate by Landlord.
b. Tenant shall, at its expense, procure and maintain all risk
personal property insurance covering all personal property owned or leased by
Tenant and located on the Property, in an amount not less than the full
replacement value of the personal property. The policy shall contain an
agreed value clause, shall have a deductible not greater than $1000.
c. To the extent permitted by law, the parties hereto waive on behalf
of the insurers of each parties' property, any and all claims or rights of
subrogation of any such insurer against the other party hereto for loss or
damage to the party so insured other than for loss or damage resulting from
the willful act of such other party. The parties agree to obtain from each
of their insurance carriers a waiver of subrogation prior to or
simultaneously with the execution of this Lease.
d. Tenant shall maintain comprehensive general liability insurance,
including public liability and property damage, with premises, contractual
and operations coverage on an occurrence basis (and not on a "claims made"
basis) with a minimum combined single limit of liability equal to $1,000,000
per occurrence and $2,000,000 aggregate for property damage, bodily and
personal injuries or deaths of persons occurring on or about the Property.
The liability policy shall name Landlord as additional insured and shall have
no deductible amount.
e. Tenant's insurance policies shall (i) be issued by insurance
companies acceptable to Landlord; (ii) provide that the insurance not be
cancelled or materially changed in the scope or amount of coverage unless ten
(10) days' prior written notice is given to Landlord; and (iii) be primary
policies, and not contributing with, or in excess of, the coverage that
Landlord may carry.
f. On or before the Commencement Date and upon each renewal of its
insurance policies, Tenant shall give copies of certificates or policies of
insurance to Landlord with proof of payment of premiums. The policies shall
be renewed or replaced and maintained by Tenant at its sole expense. If
Tenant fails to give Landlord a copy of any required certificate or policy of
insurance within ten (10) days after written notice and demand for it is
given by Landlord to Tenant, in addition to the remedies provided in
Section 16, Landlord may obtain and pay for that insurance coverage, in which
event the cost of such insurance coverage paid by Landlord shall be due and
payable by Tenant as Additional Rent immediately on demand.
13. Assignment and Subletting.
a. The Tenant shall not assign this Lease or sublet or permit the
Leased Premises or any part thereof to be used by others without the prior
written consent of the Landlord, which consent shall be in the absolute
discretion of Landlord.
b. If, with the consent of Landlord, this Lease is assigned, or the
Leased Premises or any part thereof is sublet or occupied by anyone other
than Tenant, Landlord may, after default by Tenant, collect rent directly
from the assignee, subtenant or occupant, and apply the "Net Amount
Collected" to the Rent. If, without consent of Landlord, this Lease is
assigned, or the Premises or any part thereof is sublet or occupied by anyone
other than Tenant, Landlord may collect rent from such assignee, subtenant or
occupant and apply the "Net Amount Collected" to the Rent, but no such
collection by Landlord shall be deemed a waiver of any of Tenant's
obligations contained in this Lease, or an acceptance by Landlord of the
assignee, subtenant or occupant. In no circumstances shall Tenant be
relieved from its obligations under this Lease or from further performance by
Tenant of obligations on the part of Tenant herein contained. As used herein
the term Net Amount Collected means all rentals and other amounts
(collectively the "Gross Rent") collected by Landlord from the assignee,
subtenant or occupant less all expenses and costs incurred or paid by
Landlord in collecting the Gross Rent.
14. Destruction.
(a) If the Leased Premises is damaged in part or whole from fire or
other casualty, Landlord shall, within thirty (30) days after the date of the
damage, notify Tenant in writing as to whether the Landlord will restore the
Leased Premises ("Casualty Notice"). If Landlord determines to restore the
Premises, Landlord shall, at its expense, promptly and diligently repair and
restore the Leased Premises to substantially the same condition as existed
before the damage. If Landlord determines that it will not restore the
Leased Premises, this Lease will terminate on the date specified in the
Casualty Notice.
(b) Unless the damage is caused by Tenant's negligent or willful
misconduct, the Rent shall xxxxx in proportion to that part of the Premises
that is unfit for use in Tenant's business. The abatement shall continue
from the date the damage occurred until Landlord completes the repairs and
restoration to the Premises or the part rendered unusable.
(c) Notwithstanding anything else in this Section 14, Landlord is not
obligated to repair or restore damage to Tenant's trade fixtures, furniture,
equipment, or other personal property, or any Tenant improvements.
(d) If Landlord cancels this Lease as permitted by this Section 14,
the Rent and other charges shall be payable up to the cancellation date.
Landlord shall promptly refund to Tenant any prepaid, unaccrued Rent,
accounting for any abatement, plus security deposit, if any, less any sum
then owing by Tenant to Landlord.
15. Eminent Domain.
a. If all of the Leased Premised shall be taken by a condemning
authority, then the term of this Lease shall expire upon the date that the
condemning authority takes possession of the Leased Premises and Rent shall
be apportioned as of that date.
b. If a portion of the Property shall be condemned, without which
Tenant cannot conduct its established operations as intended under this
Lease, Landlord and Tenant shall each have the option of terminating this
Lease as of the date that the condemning authority takes possession of such
portion, or of continuing this Lease and apportioning the Rent.
c. Any award for the Property and damage to the residue shall belong
to the Landlord. Any award for Tenant's fixtures, personal property,
improvements installed by Tenant and moving expenses shall belong to the
Tenant. Rent shall be apportioned as of the date the condemning authority
takes possession of the Leased Premises.
16. Default.
a. Any one or more of the following events shall each constitute an
"Event of Default":
(i) If Tenant fails to pay any Rent or any other sum payable by
Tenant under this Lease when and as the same shall be due and
payable, and such failure continues for five (5) days after such
payment is due; or
(ii) If Tenant fails to maintain the insurance coverage required
by Section 12 or fails to timely deliver a copy of any
certificate or policy of insurance required thereunder and such
failure continues for a ten (10) days after written notice is
given to Tenant; or if Tenant assigns this Lease or Subleases the
Leased Premises in violation of Section 13; or
(iii) If Tenant fails to perform or comply with any of the
provisions of this Lease, other than those specified in
Paragraphs (i) and (ii) above, for thirty (30) days after written
notice is given to Tenant; or
(iv) If Tenant files a voluntary petition in bankruptcy or is
adjudicated a bankrupt or insolvent, or files any petition or
answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
the present or future applicable federal or state law, or seeks
or consents to or acquiesces in the appointment of any bankruptcy
or insolvency trustee, receiver or liquidator of Tenant or of all
or any substantial part of its properties or of Tenant's interest
in the Leased Premises; or
(v) If within sixty (60) days after the commencement of any
proceeding against Tenant seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future federal
bankruptcy act or any other present or future federal, state or
other bankruptcy or insolvency statute or law, such proceeding
shall not have been dismissed or if, within sixty (60) days after
the appointment, without the consent or acquiescence of Tenant,
of any trustee, receiver or liquidator of Tenant or of all or
substantially all of its properties or of the Leased Premises
such appointment shall not have been vacated or stayed on appeal
or otherwise, or if, within sixty (60) days after the expiration
of any such stay, such appointment shall not have been vacated
b. If any of the foregoing Events of Default should occur, Landlord at
any time thereafter may give written notice to Tenant specifying such Event
of Default or Events of Default and stating that this Lease shall terminate
on the date specified in such notice, which shall be at least five (5) days
after the giving of such notice, and this Lease shall terminate, expire and
come to an end on the date fixed in such notice, as if such date were the
date originally fixed in this Lease for the expiration thereof and Tenant
shall then quit and surrender the Premises to Landlord, but Tenant shall
remain liable as hereinafter provided. Upon any such termination of this
Lease, Landlord, may without further notice enter upon and re-enter and
possess and repossess the Leased Premises, by any lawful means, and may
dispossess Tenant and remove Tenant and all other persons and property from
the Leased Premises and may have, hold and enjoy the Leased Premises and the
right to receive all rental income derived therefrom.
c. In case of any such termination, the Rent and all other charges
required to be paid up to the time of such termination, shall be paid by
Tenant and Tenant shall also pay to Landlord all expenses which Landlord may
then or thereafter incur for legal expenses and reasonable attorney's fees,
brokerage commissions and all other reasonable costs paid or incurred by
Landlord. Landlord may relet the Leased Premises, in whole or in part, for
any rental then obtainable either in its own name or as agent of Tenant, for
a term or terms which, at Landlord's option, may be for the remainder of the
term of this Lease Term or for any longer or shorter period.
d. If this Lease is terminated as described above, Tenant covenants
and agrees to pay and be liable for as damages, on the days originally fixed
herein for the payment thereof, amounts equal to the installments of Rent and
other charges reserved as they would, under the terms of this Lease, become
due if this Lease had not been terminated. However, in the event the Leased
Premises be relet by the Landlord, Tenant shall be entitled to a credit (but
not in excess of the Rent and other charges reserved under the terms of this
Lease) equal to the net amount of rent received by Landlord in reletting the
Premises, after deduction of all expenses and costs incurred by Landlord in
reletting the Leased Premises and in collecting any rent in connection
therewith. To the fullest extent permitted by law, suit or suits for the
recovery of damages or for any installments of Rent, or for a sum equal to
any such installments, may be brought by Landlord at once or from time to
time at Landlord's election. Nothing in this Lease shall be deemed to
require Landlord to await the date whereon this Lease would have expired had
there been no default or termination.
e. Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided
for in this Lease or now or hereafter existing at law or in equity or by
statute or otherwise, and the exercise or beginning of the exercise by
Landlord of any one or more of the rights or remedies provided for in this
Lease, or now or hereafter existing at law or in equity, shall not preclude
the simultaneous or later exercise by Landlord of any or all other available
rights or remedies Landlord may elect.
f. No receipt of moneys by Landlord from Tenant after the termination
of this Lease shall reinstate, continue or extend the Lease Term, or affect
any notice given to the Tenant prior to the receipt of such money, it being
agreed that after the service of notice or the commencement of a suit, or
after final judgment for possession of the Leased Premises, Landlord may
receive and collect any Rent due, and the payment of Rent shall not waive or
affect such notice, suit or judgment.
g. It is mutually agreed by and between Landlord and Tenant that they
hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Leased
Premises, and any emergency statutory or any other statutory remedy.
h. No waiver of any condition or legal right or remedy shall be
implied by the failure of Landlord to declare a default, and no waiver of any
condition or covenant shall be valid unless it be in writing signed by the
Landlord, and no waiver by the Landlord in respect to one tenant shall
constitute a waiver in favor of any other tenants.
17. Subordination to Lease. The rights of Tenant under this Lease
shall be subject and subordinate at all times to all ground leases, and/or
underlying leases, if any, now or hereafter in force against the Property,
and to the lien of any mortgage or mortgages now or hereafter in force
against such leases and or the Property, and to all advances made or
hereafter to be made upon the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. This
Section is self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination Tenant shall promptly
execute such further instruments with regard to subordination as may be
reasonably requested by Landlord. Tenant, at the option of any mortgagee,
agrees to attorn to such mortgagee in the event of a foreclosure sale or deed
in lieu thereof.
18. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or three (3)
days after mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice; provided, however,
that notices of a change of address shall be effective only upon receipt
thereof):
a. if to Landlord, to:
Xxxxx X. XxXxxxxx
High Technology of Rochester
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
X. Xxxxxxxxx, XX 00000
b. if to Tenant, to:
Xxxx Xxxxxx
Biophan Technologies, Inc.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
X. Xxxxxxxxx, XX 00000
19. Landlord's Right of Entry. Landlord and its authorized agents
shall have the right to enter the Leased Premises, on reasonable prior notice
to Tenant, to exhibit the Leased Premises to prospective tenants and to
prospective purchasers, mortgagees, or assignees of any mortgage on the
Property and to others having a legitimate interest during the Lease Term.
At any time and without notice in the event of an emergency, and otherwise
upon reasonable notice and at reasonable times, Landlord shall have the right
to take any and all measures, including inspections, repairs, alterations,
additions and improvements to the Leased Premises, the Building or the
Property, as may be necessary or desirable for the safety, protection or
preservation of the Leased Premises, the Building or the Property, or as may
be necessary or desirable in the operation or improvement of the Leased
Premises, the Building or the Property or in order to comply with
Governmental Regulations.
20. Security Deposit. Tenant has deposited with Landlord the sum of
TWO THOUSAND NINE HUNDRED THIRTY-THREE AND 33/100 DOLLARS ($2,933.33) as
security for the full and faithful performance of every provision of this
Lease to be performed by Tenant. Landlord will be entitled to use the
security deposit if an event of default occurs under Section 16. If any
portion of the deposit is to used or applied by Landlord, Tenant shall,
within five (5) days after written demand therefor, deposit cash with
Landlord in an amount sufficient to restore the security deposit to its
original amount. Landlord shall not be required to keep this security
deposit separate from its general funds nor pay interest to Tenant.
21. Business Incubator Program. Tenant acknowledges that Landlord
intends to use the Property as a facility designed to help entrepreneurs
start their businesses. In that regard, Landlord and Tenant have entered
into a Business Incubator Program Agreement which is attached as Exhibit "F".
22. Miscellaneous Provisions.
a. Transfer of Property. The term "Landlord" as used in this lease, so
far as covenants or agreements on the part of Landlord are concerned, shall
be limited to mean and include only the owner or owners of Landlord's
interest in this Lease at the time in question, and in the event of any
transfer or transfers of such interest, Landlord herein named (and in case of
any subsequent transfer, the then transferor) shall be automatically freed
and relieved from and after the date of such transfer of all personal
liability from events which occur after the date of transfer. Any such
release of Landlord under this Section 22.a shall become effective only at
such time as Landlord's transferee is deemed to be bound to the terms and
provisions of this Lease. It is understood, however, that Landlord shall
reimburse Tenant for any overpayments of Rent made by Tenant prior to the
assignment and any prepayment of Rent for months subsequent to the
assignment.
b. Landlord's Occupancy. It is understood that Landlord may occupy
portions of the Building in the conduct of Landlord's business. In such
event, all references herein to other tenants of the Building shall be deemed
to include Landlord as an occupant.
c. Broker's Commission. The parties represent that neither party has
had any dealings with any realtor, broker, or agent in connection with the
negotiation of this Lease and that no broker, agent or such other person
brought about this transaction. Tenant and Landlord agree to indemnify and
hold each other harmless from and against any claims by any broker, agent or
other real estate sales person claiming a commission or other form of
compensation by virtue of this Lease or of having dealt with Tenant or
Landlord with regard to this leasing transaction and should a claim for such
commission or other compensation be made it shall be promptly paid or bonded
by the party who has dealt with the person or entity making such claim. The
provisions of this Section shall survive the termination of this Lease.
d. Successors and Assigns. Subject to the provisions of Sections 13
and 22.a, the covenants and agreements contained herein shall bind and inure
to the benefit of the Landlord, its successors, and assigns, and the Tenant,
its successors, and assigns subject in the case of the Tenant, to the
restriction on assignment and subletting contained in this Lease.
e. Unavoidable Delay. In the event that either Landlord or Tenant
shall be delayed or hindered in or prevented from the performance of any act
required hereunder by reason of Act of God, strikes, lock-outs, labor
troubles, inability to procure materials (including energy) power, casualty,
inclement weather restrictive governmental laws, orders, or regulations,
riots, insurrection, war or other reason of a like nature not the fault of
the party delayed in performing work or doing acts required under the terms
of this Lease, then performance of any such act shall be extended for a
period equivalent to the period of such delay. The provisions of this
paragraph shall not operate to excuse Tenant from prompt payment of Rent or
any other payments required by the term of this Lease.
f. Quiet Enjoyment. Landlord covenants that provided Tenant pays the
Rent and performs all the covenants terms, conditions and agreements of this
Lease to be performed by Tenant, Tenant shall, during the Lease Term, quietly
occupy and enjoy possession of the Leased Premises without molestation or
hindrance by Landlord, or any party claiming through or under Landlord,
subject to the provisions of this Lease, including Section 15.
g. Relocation. Prior to the Commencement Date and throughout the
Lease Term, Landlord may request to relocate Tenant to alternative space in
the Building. Any such relocation shall be to premises of comparable size
and quality as the Leased Premises, and Landlord shall bear the full cost of
providing Tenant with comparable improvements to those in place within the
Leased Premises. Landlord shall provide Tenant with sixty (60) days prior
written notice of such relocation, and Landlord shall pay all reasonable
moving costs incurred by Tenant as a result of such relocation, including the
cost of telephone service relocation, the reprinting of stationary and
business cards and such other reasonable expenses that directly result from
Tenant's relocation. In the event of any such relocation, the alternative
space shall for all purposes be deemed the Leased Premises hereunder and this
Lease shall continue in full force and effect without any change in the other
terms or conditions hereof.
h. Right of Landlord to Perform. All covenants and agreements to be
kept or performed by Tenant under any of the terms of this Lease shall be
performed by Tenant at Tenant's sole cost and expense and without any
abatement of Rent. If Tenant shall fail to pay any sum of money other than
Rent required to be paid by it hereunder, or shall fail to perform any other
act in its part to be formed hereunder, and such failure should continue to
ten (10) days after notice thereof by Landlord, then without waiving any
default of Tenant or releasing Tenant from any obligations of Tenant
hereunder, Landlord may make, but shall not be obliged to make, any such
payment or perform any such other act on Tenant's part to be made or
performed hereunder. All sums so paid by Landlord and all necessary
incidental costs together with interest thereon at the maximum rate allowable
by law from the date of such payment by Landlord shall be deemed additional
Rent and should be paid by Tenant to Landlord immediately upon demand, and
Landlord shall have, in addition to any other right or remedy of Landlord
under this Lease, the same rights and remedies in the event of nonpayment
thereof by Tenant as in the case of default by Tenant in the payment of Rent.
i. Attorneys' Fees. If either Landlord or Tenant shall bring an
action against the other by reason of the breach of any provision of this
Lease, the unsuccessful party shall pay to the prevailing party its costs and
reasonable attorneys' fees.
j. Building Rules. Tenant agrees to comply with such Building rules
with respect parking, signs, tenants' committees, security matters and
efficient management of the Building and Common Areas as shall be established
by Landlord for all tenants from time to time.
k. Estoppel Certificate. Upon request of Landlord in connection with
any proposed sale, mortgaging or other financing of the Property, Tenant
agrees to provide, within five (5) days of Landlord's written request, a duly
executed estoppel certificate acknowledging the date of this Lease, whether
there have been any extensions, modifications or renewals thereof, the amount
of monthly rent, the date through which rent has been paid, the amount of any
security deposit held by Landlord, and whether any default exists under the
Lease.
l. Holding Over. If Tenant fails to vacate the Leased Premises at the
expiration of this Lease, then Tenant shall pay Landlord Base Rent at two
times the monthly rate specified in Section 4 for the time Tenant remains in
possession and, in addition thereto, shall be responsible for and reimburse
Landlord for all direct and consequential damages sustained by Landlord by
reason of Tenant's retention of possession. The provisions of this Section
do not exclude Landlord's rights of re-entry or any other right or remedy of
Landlord hereunder.
m. Entire Agreement. Upon the execution and delivery hereof, this
instrument shall constitute the entire agreement between the Landlord and
Tenant for the Leased Premises. This Lease cannot be changed orally, but
only by an agreement in writing and signed by the party against whom
enforcement of any waiver, change, modification, or discharge is sought.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year above first written.
LANDLORD:
HIGH TECHNOLOGY OF ROCHESTER, INC.
By _______________________________
Its ______________________________
TENANT:
BIOPHAN TECHNOLOGIES, INC.
By _______________________________
Its ______________________________
EXHIBIT A
Leased Premises
EXHIBIT B
Site Plans
Site Plans prepared by Xxxxxxxx Associates dated September 25, 1996,
entitled "High Technology of Rochester Proposed Office Building", Drawing
Nos. SP-1, UP-1, XX-0, XX-0, XX-0, XX-0, XX-0, XX-0 and CD-2, all of which
drawings are on file with the Town of Xxxxxxxxx
EXHIBIT C
Does not apply.
EXHIBIT D
Plans and Specifications
Your suite is wired with category 5 cable from telecomm room to 2 port (voice
and data) outlets, above the building's standard of 1 per 277 square feet.
Dual 110v electrical outlets are provided above the building standard outlet
frequency.
Your suite is equipped with 2 sinks with counter-space and cabinets located
in a coffee area and lab space.
All furniture, office equipment, modular dividers, wall hangings and
additional electrical outlets and voice/data drops shall be the
responsibility of the Tenant.
EXHIBIT E
Improvements and/or work
to be paid by Tenant
EXHIBIT F
Business Incubator Program Agreement
High Technology of Rochester, through its staff or volunteer resources, will
provide support services to the Tenant. The extent and specific nature of
these services will be negotiated with the Tenant periodically. These
services may include:
* Business plan review
* Connection with technical, professional, marketing, and advisory
resources
* Management coaching
* Assistance identifying and applying for government funding such as SBIRs
* Programs offered to increase Tenant knowledge about topics relevant to
tech entrepreneurial success
* Other services mutually agreed
Participation in the monthly InfoBytes series that meets the first Thursday
of the month is expected.
