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BF.LVEDF.RE ASSOCIATES, IN THE COURT OF COMMONS PLEAS
Plaintiff, CUMBERLAND COUNTYnn, PENNSYLVANIA
~. No. 13 - 73a l~ iv ~ 1 Trw
CAPITAL REGION SLEEP CNIL ACTION -LAW
DISORDERS CENTER, INC., .
Defendant. JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or. objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the Court
without further notice for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. BEDFORD STREET ~`?
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CARLISLE, PA 17013 .
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BELVEDERE ASSOCIATES IN THE COURT OF COMMONS PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
v. NO.
CAPITAL REGION SLEEP CIVIL ACTION -LAW
DISORDERS CENTER, INC.,
Defendant. JURY TRIAL DEMANDED
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los
proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte
de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin
usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion
o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso
adicional. Usted puede perder dinero o propiedad a otros derechos importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE
CUALIFICAN.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
32 S. BEDFORD STREET
CARLISLE, PA 17013
(800) 990-9108
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Caldwell & Kearns, P.C.
3631 North Front Street
1-Iarrisburg, P'~ 17110
(717) 232-7661 (phone)
(717) 232-2766 (fax)
pgood@cklegal.net
jmercy@cklegal.net
Attorneys for Plaint~Belvedere Associates
Peter M. Good, Esq.
LD. No. 64316
Jessica E. Mercy, Esq.
I.D. No. 206405
BELVEDERE ASSOCIATES IN THE COURT OF COMMONS PLEAS
Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA
v. NO.
CAPI'Ii~1L REGION SLEEP CIVIL ACTION -LAW
DISORDERS CENTF,R, INC.,
Defendant. JURY TRIAL DEMANDED
COMPLAINT
AND NOW COMES, Plaintiff Belvedere Associates, by and through its attorneys, Caldwell
& Kearns, P.C., to file the within Complaint against Defendant Capital Region Sleep Disorders
Center, Inc. by averring as follows:
Parties:
1. Plaintiff Belvedere Associates (hereinafter "Plaintiffl') is a Pennsylvania general
partnership with a principal place of business located at 850 Walnut Bottom Road, Carlisle,
Cumberland County, Pennsylvania 17013.
2. Defendant Capital Region Sleep Disorders Center, Inc. (hereinafter "Defendant") is
an Ohio business corporation with a principal place of business located at 3450 West Central
Avenue, Toledo, Lucas County, Ohio 43606 and a registered agent located 2727 N. Holland Sylvania
Road, Suite K, Toledo, Lucas County, Ohio 43615.
Turisdiction and Venue:
3. This Court has jurisdiction over the parties and the subject matter of the instant
dispute.
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4. Venue is appropriate in Cumberland County, Pennsylvania under Pennsylvania Rule
of Civil Procedure 1006, as the contract that is the subject matter of this Complaint was made and
entered into in Cumberland County.
Facts:
5. On or about May 9, 2002, Plaintiff and Defendant entered into a written Lease
Agreement (hereinafter the "Lease"), whereby Defendant leased the real property located at 850
Walnut Bottom Road, Suite LL Blue 105, Carlisle, Cumberland County, Pennsylvania 17013
(hereinafter the "Premises") from Plaintiff in exchange for the payment of basic monthly rent in the
amount of $4,044.29 and additional monthly rent in the amount of $869.90 for a total. monthly rent
in the amount of $4,914.19, as more particularly set forth in the Lease. A true and correct copy of
the Lease is attached hereto as Exhibit "A."
6. Under the terms and conditions of the Lease, Plaintiff is entitled to collect and
Defendant is required to pay a late fee in the amount of five percent (5%) of the monthly rental
amount for all monthly rental payments more than ten (10) days past due. See Ex. A at Article 4.
?. The initial term of the Lease was for a period of ten (10) years beginning on May 1,
2002 (hereinafter the "Commencement Date") and ending on April 30, 2012. See Ex. A at Basic
Lease Information and Article 2; and Letter dated May 7, 2002 from Samuel Osnowitz, Esquire to
April L. McClaine, Esquire, a true and correct copy of which is attached hereto as Exhibit "B."
8. Following the initial term of the Lease, the Lease would automatically renew for
consecutive five (5) year terms unless either party gave notice at least nine (9) months prior to the
expiration of the preceding term. See Ex. A at Exhibit E -Renewal Terms.
9. Following the expiration of the initial term on Apri130, 2012, Defendant remained in
possession of the Premises and continued to pay monthly rent.
10. As a result, the Lease automatically renewed for a five (5) year term beginning on
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May 1, 2012 and ending on Apri130, 2017.
11. Although the Lease permitted Plaintiff to increase the monthly rental amount on
each fifth (5``') anniversary of the Commencement Date, Plaintiff has never increased the monthly
rental amount and the amount of the monthly rental payments remains $4,914.19.
12. On or before September 30, 2012, Defendant abandoned the Premises, thereby
defaulting under the terms and conditions of the Lease. See Ex. A at Article 21.
13. Since abandoning the Premises, Defendant has failed to make monthly rental
payments as required under the terms and conditions of the Lease.
14. Upon an event of default during a renewal period, Plaintiff has the option to
accelerate and declare six (6) months' rent immediately due and payable. See Ex. A at Article 21.
15. As of the date hereof and based on Plaintiffs acceleration of rent, Defendant owes
Plaintiff $29,485.14 in unpaid rent and $1,474.26 in late fees from October 1, 2012 through March
31, 2013.
COUNT I
Breach of Contract
.Belvedere Asrociate~~ v. Capital Region Sleep Disorders Center, Inc.
16. Plaintiff hereby incorporates by reference paragraphs 1 through 15 of this Complaint
as if set forth fully herein.
17. Plaintiff and Defendant entered into the Lease, whereby Plaintiff leased the Premises
to Defendant in exchange for the payment of rent.
18. Under the terms and conditions of the Lease, Plaintiff is entitled to collect and
Defendant is required to pay a late fee in the amount of five percent (5%) of the monthly rental
amount for all monthly rental payments more than ten (10) days past due.
19. Defendant breached the Lease by (1) abandoning the Premises on or before
September 30, 2012, prior to the expiration of the first renewal term of the Lease and (2) failing to
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make monthly rental payments as required by the terms and conditions of the Lease.
20. Upon an event of default during a renewal period, Plaintiff has the option to
accelerate and declare six (6) months' rent immediately due and payable.
21. Plaintiff exercised its right to accelerate and declare six (6) months' rent immediately
due and payable.
22. As of the date hereof, as a direct and proximate result of Defendant's breach of the
Lease, Plaintiff has been damaged in the amount of $30,959.40, which amount represents unpaid
rent and late fees from October 1, 2012 through March 30, 2013.
23. As a direct and proximate result of Defendant's breach of the Lease, Plaintiff will
continue to be damaged in the amount of $5,159.90 per month from April 1, 2013 through Apri130,
2017, which amount represents ongoing unpaid monthly rent and late fees.
WHEREFORE, Plaintiff Belvedere Associates respectfully requests that this Honorable
Court enter judgment in its favor and against Defendant Capital Region Sleep Disorders Center, Inc.
in the amount of $30,959.40 plus $5,159.90 per month from April 1, 2013 through April 30, 2017,
together with interest, the costs of this action, attorneys' fees and such other relief that this Court
may deem reasonable and just.
Respectfully Submitted,
CALDWELL & KEARNS, P.C.
Dated: February 8, 2013 By: ~/ "
Peter M. Good, squire - I.D. No. 64316
Jessica E. Mercy, Esquire - I.D. No. 206405
3631 North Front Street
Harrisburg, PA 17110
(717) 232-7661
(717) 232-2766
pgood@cklegal.net
jmercy@cklegal.net
Attorneyf for Plain@Belvedere Associates
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04/05/2008 06:09 7172452384 SPIVAK DENTISTRY PAGE 02102
V~RIFTCATI4iY
Z, $ruce H. Spivak, DMD, managing Paxtoer of $elvedere Associates, verify that tkxe
statements contained iui the foxegoiuxg Cozxiplaint ate true and coLtect to the best o£ ~y lulawledge,
info:tznation and belief. Z understand that False statements therein axe tmadc subject to the penalties
of 18 Pa. C.S. section 4904, relating to unsworn falsiftcatiora to authorities.
Datc:
Bruce H. Spivak, D)VLU, l~az~sgi~t~,g Partner of
Belvedere .c~ssvciates
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BELVEDERE ASSOCIATES
BASIC LEASE INFORMATION
Date: ~~(
2. Landlord: Belvedere Associates
3. Tenant: Capital Rion Sleep Disorders Center, Inc.
4. Building: Belvedere Medical Center
5. Premises: Suite LL Blue 105 (located on the lower level)
6. Commencement Date: upon completion of tenant improvements and availability
for occupancy
7. Expiration Date: Ten (10) years from Commencement Date
8. Total Area of the Building: 44,158 Square Feet
9. Tenant's Rental Area of Premises: 2,694 Square Feet
10. Tenant's Proportionate Share of Common Area Expenses: 7.58 % of 8,611 Square Feet
11. Tenant's Total Proportionate Share of Renovation Costs: $69.559.75
12. Initial Basic Monthly Rental Amount: $4,044.29
13. Additional Monthly Rental Amount: $ 869.90
14. Total Initial Monthly Rental Amount: $4,914.19
15 . Total Initial Term Rental Amount: $626,101.80 (includes maximum allowable
basic rental increase after five years)
16. Initial Rental Rate: $14.50 per Rentable Square Foot
17. Basic Rental Increases: An increase in the Basic Rental Amount shall occur on the
fifth anniversary of the commencement date of the Lease and on successive fifth
anniversaries thereafter based on the cumulative percenta e~ change in the Consumer
Price Index for Urban Consumers in the Northeast of the United States (CPI-U) for
each year of the precedin five years of the Lease term. Provided that, a Basic Rental
Increase for each five-year period of the Lease term shall not exceed 15 % of the Basic
Rental Amount for the immediatel~precedin five-wear period.
18. Base Term: Ten (10) nears beginning with Commencement Date
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19. First Rent Check of 914 19 Sprorated as applicable in accordance with Article 4)
payable upon Lease commencement.
20. Landlord's Address for Notices: 850 Walnut Bottom Road. Carlisle, PA 17013,
Attention• Sonia Fle eg al-Kipp
21. Tenant's Address for Notices: Sleep Network Inc. 3450 W. Central Avenue.
Toledo OH 43606 Attention: Robert Draper
22. Restrictions on Use of Premises: Tenant shall use the Premises only for the purposes
described in Article 7 (relating to Use) and for no other purpose
EXHIBITS A-E are part of this Lease, identified as follows:
Exhibit A -Floor Plan
Exhibit B -Services Provided by Landlord
Exhibit C -Rules and Regulations
Exhibit D -Description of Parking Rights
Exhibit E -Renewal Options
The foregoing Basic Lease Information is hereby incorporated into and made a part of the
Office Lease Agreement which is described herein and attached. Each reference in the Lease
to any information and definitions contained in the Basic Lease Information shall mean and
refer to the information and definitions hereinabove set forth. In the event of any conflict
between any Basic Lease Information and the Lease, the Lease shall control.
Landlord:
BELVEDERE ASSOCIATES
By: etc! a..
J. ig Jurgense ., naging Partner
Tenant:
CAPITAL REGION SLEEP DISOR~RS CENTER, INC.
By:
eph
LEASE AGREEMENT
THIS LEASE, dated as of the date specified in the Basic Lease Information which is attached
hereto and incorporated herein for all purposes, is made between Landlord and Tenant.
ARTICLE 1
Premises
Section 1.01. Landlord leases to Tenant, and Tenant leases from Landlord for the Term (as
defined below) and subject to the provisions hereof, to each of which Landlord and Tenant
mutually agree, the Premises, which Premises is more particularly described in the floor plan
in Exhibit A hereto, together with its appurtenances, including the right to use, in common
with others, (a) the lobbies, entrances, stairs, elevators, wheelchair lifts and other public
portions of the Building, which Building is situated on the real property located at 850 Walnut
Bottom Road, Carlisle, Cumberland County, Pennsylvania 17013. The Premises shall
constitute part of the "Total Area. " For purposes of this Lease, the Total Area of the Building
and the Tenant's Rental Area of the Premises are as provided in the foregoing Basic Lease
Information. The term "Common Areas" shall mean all of the common facilities now or
hereafter under, over, in or adjacent to the Building designed and intended for use by all
Tenants in the Building in common with Landlord and each other.
Section 1.02. The parties agree that the Tenant's Rental Area of the Premises is as stated on
the foregoing Basic Lease Information.
ARTICLE 2
Term
Section 2.01. The term of this Lease (the "Term") shall begin on the Commencement Date
specified in the Basic Lease Information. Unless sooner terminated, the Term shall end at
midnight on the Expiration Date specified in the Basic Lease Information.
Section 2.02. Provided Tenant performs all of Tenant's obligations under this Lease, including
Tenant's covenant for the payment of Rental (as defined below), Tenant shall, during the
Term, peaceably and quietly enjoy the Premises without disturbance from Landlord; subject,
however, to the terms of this Lease and the mortgages, restrictive covenants, ground leases,
easements, and other encumbrances to which this Lease is subject, or may become subject, and
subordinate.
ARTICLE 3
Acceptance of the Premises and Building by Tenant
Section 3.01. Taking possession of the Premises by Tenant shall be conclusive evidence that
Tenant accepts the Premises as suitable for the purposes for which they are leased. Landlord
shall not be liable, except for negligence or willful misconduct, to Tenant or any of its agents,
employees, licensees, or invitees for any injury or damage to persons or property due to the
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condition of or any defect in the Premises or the Building or its mechanical systems and
equipment which may exist or occur, and Tenant, for itself and its agents, employees,
licensees, and invitees, expressly assumes all risks of injury or damage to person or property,
either proximate or remote, resulting from the condition of the Premises or the Building.
ARTICLE 4
Rental
Section 4.01. Tenant covenants and agrees to pay to Landlord as Rental for the Premises, in
lawful money of the United States, the Total Monthly Rental Amount specified in the Basic
Lease Information, payable in advance, without notice or demand, on the first day of each
calendar month. In the event of any late payment (ten (10) days or more following the date
payment was due), Tenant agrees to pay a late charge equal to five percent (5%) of the Rental
due. Rental shall be paid to Landlord, without deduction or offset, at the address of Landlord
specified in the Basic Lease Information or such other place as Landlord may designate. The
first monthly installment of Rental shall be paid on the Commencement Date, except that if the
Commencement Date is a date other than the first day of a calendar month, then the monthly
Rental for the first and last fractional months of the Term shall be appropriately prorated. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly installment due
under this Lease shall be deemed to be other than on account of the earliest Rental due
hereunder, nor shall any endorsement or statement on any check or payment as Rental be
deemed an accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Rental. or pursue any other remedy
provided for in this Lease or by law.
Section 4.02. Upon the fifth anniversary of the Commencement Date of this Lease, and upon
each and every fifth anniversary date thereafter, the then current Basic Rental may be
increased in accordance with the Basic Lease Information.
ARTICLE 5
Services by Landlord
Section 5.01. While Tenant is occupying the Premises and is not in default under this Lease,
Landlord shall, at its expense, but subject to the provisions of Article 6 hereof, maintain the
Building and Common Areas in first class condition, and shall furnish the Premises with
services listed in Exhibit B, attached hereto.
ARTICLE 6
Utilities
Section 6.01. While Tenant is occupying the Premises and is not in default under this Lease,
Landlord shall furnish Tenant with the following services:
(a) potable water;
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{b) heating, ventilating, and/or air conditioning in season on business
days, and
(c) electric lighting for public areas of the Building,
all of which services shall be provided to Tenant and included in the Rental. If Tenant requires
air conditioning or heating outside business days, Landlord shall furnish it only at Tenant's
request. Provided Tenant's use is more than incidental or occasional, Tenant shall bear the
entire charge therefor, which will be an amount equal to the rate charged to Landlord, at that
time. Further provided, Tenant shall be responsible for all costs associated with the use of
water, heating, ventilating, air conditioning or electricity within the Premises, which exceeds
Tenant's proportionate share of such utility usage in the Building based on the proportion
Tenant's Rental Area bears to the Total Area of the Building. All such charges to Tenant shall
be invoiced within ninety (90) days following the end of the Fiscal Year or shall be deemed
waived by Landlord.
Section 6.02. While Tenant is occupying the Premises and is not in default under this Lease,
Landlord will furnish sufficient power for lighting, typewriters, dictaphones, calculating
machines, and other normal office machines of similar low electrical consumption, all of which
power shall be paid for by Landlord. Tenant acknowledges that Landlord's aforesaid
obligation does not include the provision of power for:
(a) special mainframe type computers and/or electronic data
processing equipment;
(b) special lighting which has electrical consumption in excess of the
Building standard lighting; or
(c) any item which consumes more than 0.5 kilowatts at rated
capacity or requires voltage other than 110-120 volt single phase,
and such consumption by Tenant shall be deemed excessive usage for which Tenant shall pay
Landlord upon receipt of an invoice from Landlord. Notwithstanding the aforementioned,
Tenant acknowledges that the Building electrical feeders have normal design limitations, such
that;
(a) in no event shall lighting have a design load greater than an
average of 2.00 watts per useable square foot; and
(b) collectively, Tenant's equipment and lighting shall not have an
electrical design load greater than an average of 3.75 watts per
useable square foot.
Section 5.03. Landlord will not be liable in any way to Tenant for failure or defect in the
supply or character of electric energy or any other utility service furnished to the Premises
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because of any requirement, act or omission of the public utility servicing the Building. All
installations of electrical fixtures, appliances and equipment within the Premises shall be
subject to Landlord's prior approval. Landlord's obligation to furnish utility services shall be
subject to the rules and regulations of any municipal or other governmental authority regulating
the business of providing utility services. When Tenant's use of the Premises consumes
utilities in excess of Tenant's proportionate share of utility usage in the Building, Landlord
may elect to have installed a separate meter in the Premises to be installed and maintained by
Tenant at Tenant's sole expense.
Section 6.04. Failure to furnish, or any stoppage of the services provided for in Article 5
above and in this Article 6, resulting from any cause other than Landlord's gross negligence or
willful misconduct shall not make Landlord liable in any respect for damages to either person,
property or business, nor be construed as an eviction of Tenant, nor entitle Tenant to any
abatement of Rental, nor relieve Tenant from its obligations under this Lease. Landlord will,
with reasonable diligence, repair any malfunction of the Building improvements or facilities.
ARTICLE 7
Use
Section 7.01. The Premises shall be used for a diagnostic center for patients with suspected
sleep disorders, and related medical and administrative uses, and for no other purpose, and
Tenant agrees to use and maintain the Premises in a clean, careful, safe, lawful, and proper
manner.
ARTICLE 8
Laws, Ordinances and RecLuirements of Public Authorities
Section 8.01. Tenant shall, at its sole expense:
(a) comply with all laws, orders, ordinances, and regulations of
federal, state, county and municipal authorities having
jurisdiction over the Premises, which are unique to Tenant's
actual use of the Premises, including without limitation federal
and state laws and regulations related to the practice of medicine
or other health care professions, clinical laboratories, durable
medical equipment providers, pharmaceuticals, and
reimbursement by federal, state and commercial third party
payors;
(b) comply with any direction made pursuant to law of any public
officer or officers requiring abatement of any nuisance, or
imposing any obligation, order or duty upon Landlord or Tenant
arising from Tenant's actual use of the Premises or from
conditions which have been created by or at the insistence of
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Tenant or required by reason of a breach of any of Tenant's
obligations hereunder;
(c) indemnify Landlord and hold Landlord harmless from any loss,
cost, claim or expense which Landlord may incur or suffer by
reason of Tenant's failure to comply with its obligations under
clauses (a) or (b) above. If Tenant receives written notice of
violation of any such law, order, ordinance or regulation, it shall
properly notify Landlord thereof.
Tenant acknowledges that Landlord shall have no responsibility for, or liability in connection
with, the conduct of Tenant's health care practice or related business in the Premises.
ARTICLE 9
Observance of Rules and Regulations
Section 9.01. Tenant and its employees, agents, visitors and licensees shall observe faithfully
and comply with all Rules and Regulations attached to this Lease as Exhibit C. Landlord shall
at all times have the right to make reasonable exchanges in and additions to such Rules and
Regulations. Any failure by Landlord to enforce any of the Rules and Regulations, now or
hereafter in effect, either against Tenant or any other tenant in the Building, shall not constitute
a waiver of any such Rules and Regulations. Landlord shall not be liable to Tenant for the
failure or refusal by any other tenant, guest, invitee, visitor or occupant of the Building to
comply with any of the Rules and Regulations, but Landlord shall, after receipt of notice, take
reasonable action to assure compliance.
ARTICLE 10
Alterations
Section 10.01. Tenant may not, at any time during the Term, without Landlord's prior written
consent (which shall not be unreasonably withheld or delayed), make any structural alterations
to the Premises. All alterations shall be made at Tenant's expense, either by Tenant's
contractors which have been approved in writing by Landlord, or at Landlord's option, by
Landlord's contractors on terms reasonably satisfactory to Tenant. Tenant must provide
Landlord with "as-built" plans for all renovations.
Section 10.02. All alterations and other physical additions made or installed by or for Tenant in
or to the Premises shall be and remain Landlord's property and shall not be removed without
Landlord's written consent, except Tenant's furniture, furnishings, equipment, personal
property and moveable trade fixtures (all regardless of whether attached).
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ARTICLE 11
Liens
Section 11.01. Tenant shall keep the Premises, the Building and the property on which the
Building is located, free from any liens arising from any work performed, materials furnished
or obligations incurred by or at the request of Tenant.
ARTICLE 12
Ordinary Repairs
Section 12.01. Tenant shall maintain the Rental Premises in good, attractive, safe and operating
condition. Tenant's responsibility shall include, without limitation, relamping and ballasts;
paper products and supplies; janitorial services; security locks; Tenant's furniture and business
equipment (computers, office equipment, medical equipment, telephones and the like, and
special lighting, special equipment and special fixtures). Landlord shall maintain the structural
components {roof, steel, masonry and the like), plumbing, electrical and HVAC systems of the
Building in good, attractive, safe and operating condition. The term "maintain" as used in this
Lease shall include normal and customary repairs, replacements, servicing and cleaning. Upon
expiration or termination of the Term of this Lease, Tenant shall surrender the Premises to
Landlord in as good condition and repair as existed on the Commencement Date, ordinary
wear and tear alone excepted. Tenant shall, at all times, maintain and repair such portion of
Premises as are required whether or not due to the negligence or willful misconduct of Tenant
or any of its agents, employees, licensees or invitees and Tenant shall pay Landlord, on
demand, Landlord's actual costs in making such repairs.
ARTICLE 13
Insurance
Section 13.01. Tenant shall, during the Term, at its sole expense, keep in force, with Tenant,
Landlord, its agents, employees, representatives, or contractors and the mortgagees and
ground lessors of Landlord named as additional insured thereunder (except with respect to
Worker's Compensation coverage} all as their respective interests may appear, the following
insurance:
(a} All Risk Insurance (including fire, extended coverage, vandalism,
malicious mischief, extended perils, sprinkler leakage and debris
removal) upon property of every description and kind owned by
Tenant and located in the Building or for which Tenant is legally
liable, or installed by or on behalf of Tenant, including, without
limitation, fittings, installations, fixtures, removable trade
fixtures and alterations not made by Landlord or not as part of
Tenant's original Improvements, in an amount not less than the
full replacement cost thereof. If there is a dispute as to the
amount which comprises full replacement cost, the decision of
Tenant's insurance company shall be conclusive and binding.
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(b) Comprehensive public liability insurance to include death,
personal injury, bodily injury (not less than $3,000,000 limits),
broad form property damage (not less than $1,000,000 limits),
fire sprinkler hazard, operations hazard, owner's protective
coverage, contractual liability, and products and completed
operations liability, with combined single liability limits not less
than $3,000,000. Such coverage shall insure against all liability
of Tenant and its authorized representatives and visitors arising
out of, and in connection with, Tenant's use or occupancy of the
Premises.
(c) Worker's Compensation and Employer's Liability Insurance, with
a waiver of subrogation endorsement, in form and amount
satisfactory to Landlord and similar to that customarily in force
for, or with respect to, similar Premises.
(d) Any other form or forms of insurance customarily in force for or
with respect to similar Premises as Tenant or Landlord or the
mortgagees of Landlord may reasonably require from time to
time in form, in amounts, and for insurance risks against which a
prudent Tenant of a comparable size and in a comparable
business would protect itself.
Section 13.02. All policies shall be issued by reputable insurers and shall be in form
satisfactory to Landlord. Tenant agrees that certificates of insurance on the insurance
company's standard form, or certified copies of each such insurance policy, naming Landlord
and its mortgagees as additional insured, will be delivered to Landlord no later than five (5)
days prior to the date that Tenant takes possession of any part of the Premises. All policies
shall contain an undertaking by the insurers to notify Landlord and the mortgagees of
Landlord, in writing, by registered U.S. mail, not less than thirty (30) days before any material
change, reduction in coverage, cancellation, or other termination thereof. So long as Tenant is
not in default, proceeds of Tenant's insurance shall be immediately available to repair or
replace the insured fixtures and equipment.
Section 13.03. During the Term, Landlord shall insure the Building (but excluding any
property which Tenant is obligated to insure under Section 13.01 hereof) against damage by
fire, flood and standard extended coverage perils in an amount equal to the full replacement
cost thereof, and shall provide public liability insurance in such amounts and with such
deductions as Landlord considers appropriate. Landlord may, but shall not be obligated to,
take out and carry any other form or forms of insurance as it or Landlord's mortgagees may
reasonably determine advisable. Tenant acknowledges that it has no right to receive any
proceeds from any insurance policies carried by Landlord. Landlord will not be required to
carry insurance of any kind on Tenant's furniture or furnishings, or on any of Tenant's
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fixtures, equipment, improvements or appurtenances under this Lease; and Landlord shall not
be obligated to repair or replace same.
Section 13.04. Tenant shall not keep in the Premises any article which may be prohibited by
any insurance policy periodically in force covering the Building which is not necessary for
Tenant's permitted use. If Tenant's occupancy results in any increase in premiums for the
insurance carried by Landlord, Tenant shall pay any such increase in premiums as additional
Rent within ten (10) days after being billed therefor. Tenant shall promptly comply with all
reasonable requirements of the insurance authority or any present or future insurer relating to
the Premises and the Building.
Section 13.05. If any of Landlord's insurance policies shall be cancelled or cancellation shall be
threatened or the coverage thereunder reduced or threatened to be reduced, or if the premiums
on any of Landlord's insurance policies are increased or threatened to be increased, in any way
because of Tenant's use of the Premises for other than its permitted uses, and if Tenant fails to
remedy the cause thereof within forty eight (48) hours after notice, Landlord may, at its
option, exercise any of its Remedies set forth in Article 21, or peaceably enter upon the
Premises and attempt to remedy such condition, and Tenant shall promptly pay the cost thereof
to Landlord as additional Rental. Landlord shall not be liable for any damage or injury caused
to any property of Tenant or of others located on the Premises resulting from such entry. If
Landlord is unable to remedy such condition, then Landlord shall have all of the remedies
provided for in this Lease as if a default has occurred.
Section 13.06. All policies covering real or personal property which either party obtains
affecting the Premises shall, to the extent reasonably available, include a clause or
endorsement denying the insurer any rights of subrogation against the other party to the extent
rights have been waived by the insured before the occurrence of injury or loss. Landlord and
Tenant hereby mutually waive any rights of recovery against the other for injury or loss due to
hazards covered by insurance containing such a waiver of subrogation clause or endorsement to
the extent of the injury or loss covered thereby.
ARTICLE 14
Damage by Fire or Other Cause
Section 14.01. Subject to Section 14.02 hereof, if the Building is damaged by fire or other
casualty so as to affect the Premises, Tenant shall immediately notify Landlord, who shall (but
only if the proceeds from Landlord's insurance available to Landlord
(a) are free from collection by Landlord's mortgagee, ground or
primary lessor, and
(b) are sufficient)
have the damage repaired with reasonable speed at the expense of Landlord, subject to delays
which may arise by reason of adjustment of loss under insurance policies and to other delays
8
beyond Landlord's reasonable control. An abatement in the Rental hereunder shall be allowed
as to that portion of the Premises rendered untenantable by such damage until such time as
Landlord determines that such damaged portion of the Premises has been made tenantable,
provided such damage was not the result of the negligence or willful misconduct of Tenant, or
Tenant's employees or invitees, which is not otherwise covered by insurance.
Section 14.02. If the Building or the Premises are damaged or destroyed by any cause
whatsoever, and if, in Landlord's reasonable opinion, the Premises cannot be rebuilt or made
fit for Tenant's purposes within six (6) months of the damage or destruction, or if the proceeds
from insurance remaining after payment of any such proceeds to Landlord's mortgagee,
ground, or Primary lessor, are insufficient to repair or restore the damage by destruction,
either party may, at its option, terminate the Lease by giving the other party, within sixty (60)
days after such damage or destruction, notice of termination, and thereupon Rental and any
other payments for which Tenant is liable under this Lease shall be apportioned and paid to the
date of such damage, and Tenant shall immediately vacate the Premises; provided, however,
that those provisions of this Lease which are designated to cover matters of termination and the
period thereafter shall survive the termination hereof.
Section 14.03. No damages shall be payable by Landlord for inconvenience, loss of business,
or annoyance arising from any repair or restoration of any portion of the Premises, or the
Building. Landlord shall use its best efforts to have such repairs made promptly so as not to
unnecessarily and unreasonably interfere with Tenant's occupancy.
ARTICLE 15
Condemnation
Section 15.O1.If, during the Term, the Premises are totally taken by condemnation, this Lease
shall terminate on the date of taking, but the Tenant shall be entitled to damages as set forth in
Section 15.04 below as though the Lease continued and, at Tenant's option, as though the
renewal options were exercised.
Section 15.02. If any portion of the Premises is taken by condemnation, this Lease shall remain
in effect, except that Tenant can elect to terminate this Lease if the remaining portion of the
Building or other improvements or the parking area that are a part of the Premises is rendered
unsuitable for Tenant's continued use of the Premises, or materially adversely affects the
continued use or economic vitality of Tenant's business on the Premises. Landlord can elect to
terminate this Lease if, in Landlord's judgment, the taking materially adversely affects the
continued use or economic vitality of the Building or the Property. If Landlord or Tenant elect
to terminate this Lease, such party must exercise its right to terminate pursuant to this
paragraph by giving notice to the other party within thirty (30) days after the last to occur of
(a) the nature of the extent of taking have been determined, or
(b) the date of taking.
9
The party electing to terminate this Lease as provided in this paragraph shall specify the date
of termination, which date shall not be earlier than sixty (60) days, nor later than one hundred
eighty (180) days after the date of delivery of the notice of termination; except that this Lease
shall terminate on the date of taking, i.e. possession by the condemner, if the date of taking
falls on a date before the date of termination notice. If neither party terminates this Lease
within the thirty (30) day period, this Lease shall continue in full force and effect, except that
the monthly rent shall be reduced pursuant to this paragraph.
Section 15.03. Effect on Rent - If any portion of the Premises is taken by condemnation and
this Lease remains in full force and effect, on the date of taking the monthly rent shall be
reduced by an amount that is in the same ratio to monthly rent as the value of the area of the
portion of the Premises taken bears to the total value of the Premises immediately before the
date of taking.
Section 15.04. The entire award shall belong to and be paid to Landlord, except that Tenant
shall receive for the award the following:
(a) The sum attributable to the unamortized portion of Tenant's
Leasehold interest; and
(b) A sum attributable to Tenant's improvements or alterations made
to the Premises by Tenant in accordance with this Lease, which
Tenant improvements or alterations Tenant has the right to
remove from the Premises pursuant to the provisions of this
Lease, but elects not to remove; and
(c) A sum attributable to that portion of the award constituting
Tenant's relocation costs, if included in the award; and
(d) Any special damages which by their nature are awardable only to
the Tenant and would not, under any circumstances, nor under
any provision of this Lease, be awardable to Landlord.
ARTICLE 16
Assignment and Subletting
Section 16.O1.If Tenant should desire to assign this Lease or sublet the Premises (or any part
thereof), Tenant shall give Landlord written notice at least thirty (30) days in advance thereof.
Landlord shall then have a period of thirty (30) days following receipt of such notice within
which to notify Tenant in writing that Landlord elects either
(a) to permit Tenant to assign or sublet such space, subject to
Landlord's timely approval of the prospective subtenant;
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(b) to refuse to consent to Tenant's assignment or subleasing of such
space and to continue this Lease in full force and effect as to the
entire Premises, specifying the reasons therefor. Provided that,
Landlord shall not unreasonably refuse consent to such
assignment or subleasing if the proposed assignee or sublessee is
legally engaged in the practice of health care and is otherwise
financially creditworthy.
No assignment or subletting by Tenant shall relieve Tenant of Tenant's obligations under this
Lease. Any attempted assignment or sublease by Tenant in violation of the terms and
provisions of this Section 16.01 shall be void. In no event shall Tenant solicit assignees or
subleases at less than the Fair Market Value Rate.
Section 16.02. Landlord may sell, transfer, assign, and convey all or any part of the Building
and any and all of its rights under this Lease, provided Landlord's successor in interest
assumes Landlord's obligations hereunder, and in the event Landlord assigns its rights under
this Lease, Landlord shall be released from any further obligations hereunder (after the
effective date of such assignment) and Tenant agrees to look solely to Landlord's successor in
interest for performance of such obligations.
ARTICLE 17
Indemnification
Section 17.01. Tenant waives all claims against Landlord for damage to any property or injury
to, or death of, any person in, upon, or about the Building, the Premises or Parking Facilities
arising at any time and from any and all causes whatsoever other than by reason of negligence
or willful misconduct of Landlord, its agents, employees, representatives, or contractors, and
Tenant agrees that it will defend, indemnify, save and hold harmless Landlord from and
against all claims, demands, actions, damages, loss, cost, liabilities, expenses and judgments
suffered by, recovered from, or asserted against Landlord on account of any damage to any
property or injury to, or death of, any person arising from the use of the Building, the
Premises, or the Parking Facilities by Tenant or its employees or invitees, except such as is
caused by the negligence or willful misconduct of Landlord, its agents, employees,
representatives, or contractors. Tenant's foregoing indemnity obligation shall include
reasonable attorneys' fees and all other reasonable costs and expenses incurred by Landlord.
The provisions of this Article 17 shall survive the termination of this Lease with respect to any
damage, injury or death occurring before such termination. If Landlord is made a party to any
litigation commenced by or against Tenant or relating to this Lease or to the Premises, and
provided that in any such litigation, or as part of any settlement Landlord is not finally
adjudicated or determined to be at fault, then Tenant shall pay all costs and expenses, including
attorneys' fees and court costs, incurred by or imposed upon Landlord because of any such
litigation, and the amount of all such costs and expenses, including attorneys' fees and court
costs, shall be a demand obligation owing by Tenant to Landlord, and shall be considered as
additional Rental.
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Section 17.02. Landlord waives all claims against Tenant for damage to any property or injury
to, or death of, any person in, upon,. or about the Building, the Premises or Parking Facilities
arising at any time and from any and all causes whatsoever other than by reason of negligence
or willful misconduct of Tenant, its agents, employees, representatives, or contractors, and
Landlord agrees that it will defend, indemnify, save and hold harmless Tenant from and
against all claims, demands, actions, damages, loss, cost, liabilities, expenses and judgments
suffered by, recovered from, or asserted against Tenant on account of any damage to any
property or injury to, or death of, any person arising from the use of the Building, the
Premises, or the Parking Facilities by Tenant or its employees or invitees, except such as is
caused by the negligence or willful misconduct of Tenant, its agents, employees,
representatives, or contractors. Landlord's foregoing indemnity obligation shall include
reasonable attorneys' fees and all other reasonable costs and expenses incurred by Tenant. The
provisions of this Article 17 shall survive the termination of this Lease with respect to any
damage, injury or death occurring before such termination. If Tenant is made a party to any
litigation commenced by or against Landlord or relating to this Lease or to the Premises, and
provided that in any such litigation, or as part of any settlement Tenant is not finally
adjudicated or determined to be at fault, then Landlord shall pay all costs and expenses,
including attorneys' fees and court costs, incurred by or imposed upon Tenant because of any
such litigation, and the amount of all such costs and expenses, including attorneys' fees and
court costs, shall be a demand obligation owing by Landlord to Tenant, and shall be considered
as additional Rental.
ARTICLE 18
Surrender of the Premises
Section 18.01. Upon the expiration or other termination of this Lease, for any cause
whatsoever, Tenant shall peacefully vacate the Premises in as good order and condition as the
same were at the beginning of the Term or may thereafter have been improved by Landlord or
Tenant, subject only to reasonable use and wear thereof, and repairs which are Landlord's
obligations hereunder.
Section 18.02. Landlord may require Tenant to remove any alterations and physical additions
installed in the Premises other than the original Improvements, upon termination of this Lease.
In the event Landlord so elects, and Tenant fails to remove the aforementioned items, Landlord
may remove and store same at Tenant's cost, and Tenant shall pay Landlord, on demand, the
cost of restoring the Premises to Building Standard. Tenant agrees to remove, at Tenant's
expense, all of its furniture, furnishings, personal property, and moveable trade fixtures by the
Expiration Date, and shall promptly reimburse Landlord for the cost of repairing all damage
done to the Premises or the Building by such removal.
Section 18.03. Should Tenant continue to hold the Premises after the termination of this Lease,
whether the termination occurs by lapse of time or otherwise, such holding over shall, unless
otherwise agreed to by Landlord in writing, constitute and be construed as a tenancy at will at
a daily rental equal to one thirtieth (1/30th) of an amount equal to two times the monthly
Rental Rate for the Premises as of the date of termination, and subject to all of the other terms
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set forth herein, except any right to renew or expand this Lease. Tenant shall be liable to
Landlord for all damage which Landlord suffers because of any holding over by Tenant, and
Tenant shall indemnify Landlord against all claims made by any other Tenant or prospective
Tenant against Landlord resulting from delay by Landlord in delivering possession of the
Premises to such other Tenant or prospective Tenant.
ARTICLE 19
Subordination
Section 19.01. This Lease is subject and subordinate to any mortgages or other security
instruments, and any other supplements or amendments thereto, which presently or may in the
future cover the Building and the Premises or any interest of Landlord therein, and to any
increases, renewals, modifications, consolidations, replacements, and extensions of any of such
mortgages, or security instruments, from the holder or beneficiary of any mortgages or other
security instruments that now or in the future may cover the Building and the Premises or any
interest of Landlord therein which provides to Tenant a nondisturbance agreement providing
that so long as Tenant pays its rent and otherwise complies with the Terms of this Lease, its
possession shall not be disturbed. This provision is declared by Landlord and Tenant to be
self-operative and no further instrument shall be required to effect such subordination of this
Lease. Tenant shall, however, upon demand, execute, acknowledge, and deliver to Landlord
any further instruments and certificates evidencing such subordination as Landlord may
reasonably require. This Lease is further subject and subordinate to
(a) all ground or primary Leases in existence at the date hereof and
to any supplements, modifications, and extensions thereof
heretofore or hereafter made, and
(b) utility easements and agreements, covenants, restrictions, and
other encumbrances, both existing and future, which do not
interfere with Tenant's permitted use of the Premises.
ARTICLE 20
P
Section 20.01. Landlord will provide adequate parking for Tenant's patients, principals,
employees, customers and suppliers, sufficient to meet all governmental requirements and will
permit Tenant to use the areas designated by Landlord ("Parking Facilities") for parking of
vehicles in common with other Tenants in the Building during the Term as more fully provided
for in Exhibit D hereto.
ARTICLE 21
Default and Remedies
Section 21.01. The occurrence of any one or more of the following events shall, at Landlord's
option, constitute an event of default of this Lease:
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(a) if Tenant shall fail to pay any Rental or other sum payable by
Tenant hereunder within ten (10) days of written notice thereof
from Landlord (provided, however, if such event of default shall
occur more than once in a six (6) month period, Landlord shall
not be required to provide any written notice and an event of
default shall occur as and when such Rental or other sums
become due and payable);
(b) if Tenant shall fail to perform or observe any other term hereof
or any of the Rules and Regulations and such failure shall
continue for more than thirty (30) days after notice thereof from
Landlord; provided, however, that if the default is not capable of
cure within thirty (30) days, but Tenant commences and diligently
proceeds with cure, then Tenant shall have a reasonable time to
cure, not to exceed sixty (60) days, unless approved by Landlord
(Tenant shall provide weekly progress reports to Landlord);
(c) if Tenant deserts or vacates any substantial portion of the
Premises;
(d) if any petition is filed by or against Tenant under this Lease under
any section or chapter of the present or any future Federal
Bankruptcy Code or under any similar law or statute of the
United States or any state thereof, which is not discharged within
sixty (60} days;
(e) if Tenant becomes insolvent or makes a transfer in fraud of
creditors;
(f} if Tenant makes an assignment for the benefit of creditors; or
(g) if a receiver, custodian, or trustee is appointed for Tenant or for
any of the assets of Tenant which appointment is not vacated
within thirty (30) days of the date of such appointment.
Section 21.02. If an event of default occurs, at any time thereafter Landlord may do one or
more of the following without any additional notice or demand:
(a) (i) If an event of default occurs during the initial term of this
Lease, whether or not Landlord has exercised any other remedy,
accelerate and declare immediately due and payable, and Tenant
shall then pay, the whole or any part of the rent for the entire
unexpired balance of the term of this Lease, as well as all other
14
charges, payments, costs and expenses herein agreed to be paid
by Tenant.
(ii) If an event of default occurs during any renewal term of
this Lease, whether or not Landlord has exercised any other
remedy, accelerate and declare immediately due and payable, and
Tenant shall then pay, six (6) months' -then-applicable Basic
Monthly Rental, as well as all other charges, payments, costs and
expenses herein agreed to be paid by Tenant for such period of
time.
(b) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to do so,
Landlord may, without notice and without prejudice to any other
remedy Landlord may have, peaceably enter upon and take
possession of the Premises and expel or remove Tenant and its
effects without being liable to prosecution or any claim for
damages therefor; and Tenant shall be liable to Landlord for all
loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises or
otherwise, including any loss of Rental for the remainder of the
Term. Any such loss of Rental shall be offset by any Rental.
received by Landlord as a result of reletting the Premises during
the remainder of the Term.
(c) Terminate this Lease, in which event Tenant's event of default
shall be considered a total breach of Tenant's obligations under
this Lease and Tenant immediately shall become liable for such
damages for such breach amount, equal to the total of:
(i) the cost of recovering the Premises;
(ii) the unpaid Rental due as of the date of termination,
plus interest thereon at a rate per annum, computed
monthly, from the due date equal to three (3%)
percent over the Prime Rate as reported in the
Wall Street Journal on the date of termination;
provided, however, that such interest shall never
exceed the Highest Lawful Rate;
(iii) the amount of excess of
(1) the total rental and other benefits which
Landlord would have received under the
Lease for the remainder of the Term, at
15
the rental rates then in effect or to be
effective, together with all other expenses
incurred by Landlord in connection with
Tenant's default, over
(2) the Fair Market Value Rate of the balance
of the Term as of the time of such breach,
which excess shall be discounted at the
rate of five (5 %) percent per annum to
the then-present value; and
(iv) all other sums of money and damages owing by
Tenant to Landlord.
(d) Enter upon and take possession of the Premises as Tenant's agent
without terminating this Lease and without being liable to
prosecution or any claim for damages therefor, and Landlord may
relet the Premises as Tenant's agent and receive the Rental
therefor, in which event Tenant shall pay to Landlord on demand
the cost of renovating, repairing, and altering the Premises for a
new tenant or tenants and any deficiency that may arise by reason
of such reletting; provided, however, that Landlord shall have no
duty to relet the Premises and Landlord's failure to relet the
Premises shall not release or affect Tenant's liability for Rental
due at the time Landlord enters the Premises, or for damages, or
rent reserved herein for the balance of the term hereof.
Section 21.03. Landlord's acceptance of Rental following an event of default hereunder shall
not be construed as a waiver of such event of default. No waiver by Landlord of any breach of
this Lease shall constitute a waiver of any other violation or breach of any kind of the terms
hereof. Forbearance by Landlord to enforce one or more of the remedies herein provided
upon a breach hereof shall not constitute a waiver of any other breach of this Lease.
Section 21.04. No provision of this Lease shall be deemed to have been waived by Landlord or
Tenant unless such waiver is in writing and signed by Landlord or Tenant, as appropriate.
Nor shall any custom or practice which may evolve between the parties in the administration of
the terms of this Lease be construed to waive or lessen Landlord's right to insist upon strict
performance of the terms of this Lease. The rights granted to Landlord in this Lease shall be
cumulative of ever other right or remedy which Landlord may otherwise have at law or in
equity or by statute, and the exercise of one or more rights or remedies shall not prejudice or
impair the concurrent or subsequent exercise of other rights or remedies.
Section 21.OS.If rent and/or charges hereby reserved as rent shall remain beyond the day when
the same ought to be paid, ten (10) business days after written notice thereof, Tenant hereby
empowers any Prothonotary or Attorney of any court of record to appear for Tenant in any and
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all actions which may be brought for rent and/or the charges, payments, costs and expenses
reserved as rent, or agreed to be paid by Tenant and/or to sign for Tenant an agreement for
entering into any competent court an amicable action or actions for the recovery of rent or
other charges or expenses, or actions for the recovery of rent or other charges of expenses, and
in said suit(s) or in said amicable action or action to confess judgment against Tenant for all or
any part of the rent specified in this Lease and then unpaid including the rent for the entire
unexpired balance of the term of this Lease, and/or other charges, payments, costs and
expenses reserved as rent or agreed to be paid by Tenant, and for interest and costs together
with reasonable attorneys' fees; and judgment in ejectment as herein provided may be entered
concurrently therewith, or separately, as provided below. Judgment may be confessed
repeatedly until any deficiency is collected.
Section 21.06. At the end of said term, whether the same shall be determined by forfeiture or
expiration of the term, or upon the breach of any of the conditions of this Lease, Tenant
authorizes any attorney of a court of record in Pennsylvania to appear for Tenant in an
amicable action in ejectment and confess judgment for possession against Tenant in such
action, and Tenant in such event further authorizes the immediate issuance of a Writ of
Possession for the same, with Writ of Execution for the costs, and with reasonable attorneys'
fees for prosecution of such action.
Section 21.07.In case suit shall be brought or Landlord confesses judgment for recovery of
possession of the Demised Premises, for the recovery of rent, or any other amount due under
the provisions of this Lease, or because of any default by Tenant, Tenant shall pay to Landlord
all expenses incurred therefor, including reasonable attorneys' fees.
ARTICLE 22
Waiver by Tenant
Section 22.01. To the extent permitted by applicable law, Tenant waives for itself and all
claiming by, through, and under it, including creditors of all kinds
(a) the benefits of any present or future constitution, statute or rule of
law which exempts property from liability for debt or for distress
for rent, and
(b) the provisions of law relating to notice and/or delay in levy of
execution in case of eviction of a Tenant for non-payment of rent,
and
(c) notice to quit.
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ARTICLE 23
Notices
Section 23.01. Any notice or document required to be delivered hereunder shall be considered
delivered, whether actually received or not, when hand delivered to the address of the other
party during normal business hours, or two {2) business days after deposited in the United
States Mail, postage prepaid, registered or certified mail, return receipt requested, or one (1)
business day after depositing with a national overnight delivery service requiring receipt (such
as UPS, Federal Express, etc.), all addressed to the parties hereto at the respective addresses
specified in the Basic Lease Information, or at such other address as they have subsequently
specified by written notice.
ARTICLE 24
Miscellaneous
Section 24.01. Where this Lease requires Tenant to reimburse Landlord the cost of any item, if
no such cost has been stipulated, such cost will be the reasonable and customary charge
therefor reasonably established by Landlord subject to Tenant's right to audit and/or contest the
reasonableness thereof. Failure to pay any such reasonable cost shall be considered as a failure
to pay Rental.
Section 24.02. Tenant represents and warrants that it has had no dealings with any broker or
agent in connection with the negotiation or execution of this Lease.
Section 24.03. Every agreement contained in this Lease is, and shall be construed as, a separate
and independent agreement. If any term of this Lease or the application thereof to any person
or circumstances shall be invalid and unenforceable, the remainder of this Lease, or the
application of such term to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected.
Section 24.04.In the event of a voluntary or other surrender of this Lease, or a mutual
cancellation hereof, Landlord may, at its option, terminate all subleases, or treat such
surrender or cancellation as an assignment of such subleases.
Section 24.05 . The article headings contained in this Lease are for convenience only and shall
not enlarge or limit the scope or meaning of the various and several articles hereof. Words of
any gender used in this Lease shall include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
Section 24.06.If there be more than one Tenant, the obligations hereunder imposed Tenant
shall be joint and several, and all agreements and covenants herein contained shall be binding
upon the respective heirs, personal representatives, successors, and to the extent permitted
under this Lease, assigns of the parties hereto.
18
Section 24.07. Neither Landlord nor Landlord's agents have made any representations or
promises with respect to the Premises or the Building except as herein expressly set forth and
all reliance with respect to any representations or promises is based solely on those contained
herein.
Section 24.08. This Lease sets forth the entire agreement between the parties regarding the
subject matter hereof and cancels all prior negotiations, arrangements, brochures, agreements
and understandings, if any, between Landlord and Tenant regarding the subject matter of this
Lease. No amendment or modification of this Lease shall be binding or valid unless expressly
in a writing executed by the party sought to be bound thereby.
Section 24.09. If Tenant signs as a corporation, each of the persons executing this Lease on
behalf of Tenant represents and warrants that Tenant is a duly organized and existing
corporation, that Tenant has and is qualified to do business in the Commonwealth of
Pennsylvania, that the corporation has full right and authority to enter into this Lease, and that
all persons signing on behalf of the corporation were authorized to do so by appropriate
corporate actions.
Section 24.10. This Lease shall be governed by and construed under the laws of the
Commonwealth of Pennsylvania.
Section 24.11. Landlord may, upon reasonable notice (except in the case of emergencies in
Landlord's discretion) enter upon the Premises at reasonable hours to inspect same or make
repairs or alterations (but without any obligation to do so, except as expressly provided for
herein) and to show the Premises to prospective lenders, purchasers or tenants at reasonable
hours and, if they are vacated, to prepare them for re-occupancy. Landlord shall cause its
officers, agents and representatives to exercise care with any such entry not to unreasonably
interfere with the operation and normal office routine of Tenant (except in the case of
emergency).
Section 24.12. Whenever any action taken or to be taken by Tenant requires the approval of
Landlord, Landlord shall not unreasonably withhold, delay or condition such approval as
determined by reasonable commercial standards then prevailing.
Section 24.13. The exhibits attached to this Lease are, by this reference, incorporated fully
herein. The term "this Lease" shall be considered to include all such exhibits.
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Section 24.14. No delay or omission in the exercise of any right or remedy of Landlord on any
default by Tenant or otherwise shall impair such right or remedy or be construed as a waiver.
The receipt and acceptance by Landlord of any late rent payment shall not constitute a waiver
of any default; it shall constitute only a waiver of timely payment for the particular rent
payment involved.
Any waiver by Landlord of any default must be in writing and shall not be a waiver of any
other default concerning the same or any other provision of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound hereby,
have set their hands and seals to this Lease Agreement the day and year first above written.
WITNESS:
LANDLORD:
BELVEDERE ASSOCIATES
By: .-c.
J. Craig Jur n, IvI.D.
Managing Pa r
ATTEST:
~Secr ry
TENANT:
CAPITAL REGION SLEEP DISORDERS
CENTER, INC.
By
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EXHIBIT B
SERVICES PROVIDED BY LANDLORD
While Tenant is occupying the Premises and is not in default under the Lease, Landlord shall,
at its expense, but subject to the provisions of Article 6 of the Lease, maintain the Building and
Common Areas in first class condition, and shall furnish the Premises with:
(a) the utility services provided for in Article 6 of the Lease;
(b) maintenance and repairs of the Building and Common
Areas, including, without limitation, landscaping,
gardening, lawn mowing, snow and ice removal; and
(c) maintenance of the same insurance coverage, for
Landlord, as required for Tenant in Article 13 of the
Lease .
EXHIBIT C
RULES AND REGULATIONS
1. Definitions. Wherever in these Rules and Regulations the word "Tenant" is used, it
shall be taken to apply to and include the Tenant, and its agents, employees, invitees,
licensees, subtenants and contractors, and is to be deemed of such number and gender
as the circumstances require. The word "Landlord" shall be taken to include the
employees and agents of Landlord.
2. Obstructions. The streets, sidewalks, entrances, halls, passages, stairways and other
common areas shall not be obstructed by Tenant, or used for any other purpose than for
ingress and egress, and Tenant shall keep the same in a safe condition.
3. Washrooms. Toilet rooms, water closets and other water apparatus shall not be used
for any purpose other than those for which they were constructed.
4. Insurance Regulations. Tenant shall not do anything in the Premises, or bring or keep
anything therein, which will in any way increase or tend to increase the risk of fire or
the rate of fire insurance, or which will conflict with the regulations of the Fire
Department or the fire laws, or with any insurance policy on the building or any part
thereof, or with any law, ordinance, rule or regulation affecting the occupancy and use
of the Premises, now existing or hereafter enacted or promulgated by the public
authority or by the Board of Fire Underwriters.
5. General Prohibitions. In order to insure proper use and care of the Premises, Tenant
shall not:
(a) Keep animals or birds in the Premises.
(b) Use the Premises as sleeping apartments.
(c) Allow any sign, advertisement or notice to be fixed to the
building, inside or outside, without Landlord's consent, which
consent shall not be unreasonably withheld, except that Tenant
will be listed on any directories or signs of Landlord.
(d) Make improper noises or disturbances of any kind, or otherwise
do anything that tends to injure the reputation or character of the
building.
(e) Mark or defile water closets, toilet rooms, walls, windows, doors
and any other part of the building.
(fj Place anything on the outside of the building, including roof set-
backs, window ledges and other projections, or drop anything
from the windows, stairways or parapets, or place trash or other
matter in the halls of the building.
(g) Cover or obstruct any window, skylight, door or transom that
admits light in such a manner as to injure the reputation or
character of the building.
(h) Operate any machinery other than small office equipment and
computers without consent of the Landlord.
(i) Interfere with the heating or cooling apparatus.
(j) Install any shades, blinds or awnings that would in any way tend
to injure or change the character of the building.
(k) Use any electric heating device without the permission of
Landlord.
(1) Install call boxes or any kind of wire in or on the building
without Landlord's permission and direction.
(m) Give Tenant's employees or other persons permission to go upon
the roof of the building without the written consent of Landlord,
for any purpose other than inspection, maintenance and repair.
6. Publicity. Landlord shall have the right to reasonably prohibit or require modification
of any advertising by Tenant which, in its opinion, tends to impair the reputation of the
building or its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising. Signs on interior
glass doors will be painted only by persons designated by Landlord, the cost of the
painting to be paid by Tenant.
7. Weieht. Tenant shall not place a load upon any floor of the Premises exceeding the
floor load per square foot allowed by law. Landlord reserves the right to prescribe the
installations which must be placed so as to distribute the weight. Business machines
and mechanical equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient in Landlord's judgment to absorb and prevent vibration,
noise and annoyance.
8. Regulation Changes. Landlord shall have the right to make such other and further
reasonable rules and regulations as, in the judgment of Landlord, may from time to
time be necessary for the safety, appearance, care and cleanliness of the building and
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for preservation of good order therein. Landlord shall not be responsible to Tenant for
any violation of Rules and Regulations by other tenants.
9. Water. No water fountain, air conditioning unit or system or other apparatus shall be
installed or used by Tenant without written consent of Landlord.
10. Walls. Tenant shall not mark, paint, drill into, use adhesives on or in any way deface
any partitions or walls in the Premises.
11. Parkin. Tenant, Tenant's agents, servants, employees, contractors, licensees or
visitors, shall not park any vehicles in driveways, service entrances or areas posted as
"No Parking." Violators will be towed away.
EXHIBIT D
DESCRIPTION OF PARKING RIGHTS
While Tenant is occupying the Premises and is not in default under this Lease, Tenant shall
have the right to use parking spaces in the Parking Facility adjacent to the Building. Such
parking spaces shall be used in common with other Tenants in the Building and shall not be
separately designated or marked. Within the Parking Facilities, Landlord shall provide
sufficient handicap and special use spaces to meet govemmental requirements.
Non-physician employees shall be required to park in the rear parking lot, it being understood
that parking spaces to the side and front of the Building are for physician, patient and customer
parking.
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EXHIBIT E
RENEWAL OPTIONS
Provided Tenant performs all of Tenant's obligations under this Lease, including Tenant's
covenant for the payment of Rental, and has not defaulted beyond any applicable cure period,
this Lease shall renew for consecutive five-year terms, subject to Basic Rental Increases as
provided in the Basic Lease Information, unless either party shall give notice to the other party
at least nine (9) months prior to the expiration of the preceding Lease term of the party's
intention not to renew.
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• G2/0~72013 11 , 03 Wa I nut Bottom Rad i o I ogy
H I RSCW $ USNOW ITZ
ATTORNlYS
2T17 N. ?It7lLAND SYlVANIA It0. SUITE K
74LED0, OH10 43615.1800
CORDON H, HISLSCN
SAMUEL, OSN01v1TZ
AssOCLAres May 7, 2002
April L, McClaine, Esq.
Charles I. Artz & Associates
207 State Street
Harrisburg, PA 17101
{FAX}7172450180 P , pp2
Tt:lEPHONE (41St) 531.1021
PAX fa19) 331•IOae
Fllrahoslawaaol.wm
VIA UPS pVERNIGHT MAIL
Re: Capital Region Sleep Disorders Center, Inc. -Belvedere Associates
Dear April:
Enclosed please find two copies of the captioned-lease which hove been executed by my
client, along with a check in the amount of $4,914. I9 representing the total first month's rental
amount, This letter will also serve to confirm the following matters:
1. The reference to "business days" in Section 6.01 (b) refers to the Tenant's
business days which can include weekends.
2. Far purposes of Sectian 6.02, the Landlord acknowledges that the Tenant's
premises wilt include a refrigerator, microwave and approximately eleven
personal computers,
3. The requirement that the Tenant shall keep the streets, sidewalks, etc, in a safe
condition, set forth in Paragraph 2 of the Rules and Regulations (Exhibit C)
means that the Tenant may not directly cause an unsafe condition. Damage to
those areas described in Paragraph 2 of Exhibit C which are not caused by the
Tenant are the responsibility of the Landlord pursuant to Article ~ of the Lease.
4. The commencement date of the Lease, as defined in item 6 of the Basic Lease
Information is mutually agreed to be May I, 2002,
lrf the above correctly incorporates your client's understanding, please obtain Dr.
Jurgensen's signature on the enclosed extra copy of this letter and return it to me.
Yaurs very truly,
S muel Osnowitz
SOldn
Tltc trrn~5 nrtd conclitians set forth shave arc agreed to and necerted thin q~ d1y of May, 2002,
Belvedere Associates by:
raig Jurg s M.D., anaging pa er