exv10w16



 




Exhibit 10.16





LEASE




     THIS LEASE (this “Lease”) dated the 22nd day of March 2005, by and between CROWN
MILFORD LLC, a Delaware limited liability company having an address at c/o Crown Properties, Inc.,
400 Garden City Plaza, Garden City, NY 11530 (“Landlord”) and REPLIDYNE, INC., a Delaware
corporation having an office at 1450 Infinite Drive, Louisville, Colorado 80027 (“Tenant”).



     1. DEFINTIONS. For the purposes of this Lease, the following terms shall be defined
and have the meaning herein below set forth:




	 	(a)	 	“Additional Rent” shall mean Tenant’s Proportionate Share of
increases in Operating Expenses, as provided in Article 7, below, Real Estate
Taxes, as provided in Article 8 below and the Electrical Inclusion Amount as
provided in Article 25, below.
	 
	 	(b)	 	“Base Rent” shall mean the Base Rent payable by Tenant to
Landlord on the rent schedule as set forth on Exhibit “D” annexed
hereto and made a part hereof.
	 
	 	(c)	 	“Broker” shall collectively mean Cushman & Wakefield, Inc. and
Remax Right Choice
	 
	 	(d)	 	“Building” shall mean the building known as 472 Wheelers Farm
Road, Milford, Connecticut known as Building B, Corporate Campus 1.
	 
	 	(e)	 	“Commencement Date” shall mean the earlier of either June 15,
2005 or Substantial Completion of Tenant’s Alterations in the Premises.
	 
	 	(f)	 	“Corporate Campus 1” shall collectively mean the buildings
known as 470 Wheelers Farm Road, 472 Wheelers Farm Road, 476 Wheelers Farm
Road, 478 Wheelers Farm Road, and 488 Wheelers Farm Road.
	 
	 	(g)	 	“Expiration Date” shall mean April 30, 2010, unless sooner
terminated as set forth herein.
	 
	 	(h)	 	“Landlord’s Work” shall mean none.
	 
	 	(i)	 	“Premises” shall mean that certain portion of rentable space
located on the third (3rd) floor of the Building containing
approximately 8,312 rentable square feet as more particularly shown
cross-hatched on Exhibit “A” annexed hereto and made a part hereof.
	 
	 	(j)	 	“Property” shall mean the Building together with the plot of
land upon which such Building stands, as shown on the site plan (the “Site
Plan”) on Exhibit “B” annexed hereto and made a part hereof.




 









 






	 	(k)	 	“Rent Commencement Date” shall mean the Commencement Date.
	 
	 	(l)	 	“Security Deposit” shall mean the sum of $81,042.00.
	 
	 	(m)	 	“Substantial Completion” shall mean Tenant’s Alterations are
fully and finally completed with respect to the Premises and in accordance with
Article 9 herein, subject only to a reasonable punch-list of items which can
reasonably be expected to be completed within 30 days and which will not
materially interfere with Tenant’s use or occupancy of the Premises.
	 
	 	(n)	 	“Term” shall mean five (5) years.





     2. PREMISES. Landlord hereby leases to Tenant, upon the terms and conditions
hereinafter specified, the Premises. The Premises does not include any space located outside of
the Premises and Tenant shall not use the exterior of the Building or the roof for any purpose
without Landlord’s express written consent which may be withheld in Landlord’s sole discretion.



     3. TERM.



          (a) The Term of this Lease shall commence on the Commencement Date, and end on the Expiration
Date, unless the Term shall sooner terminate pursuant to the terms hereof. Tenant shall, at
Landlord’s option, within five (5) days of written request made by Landlord to Tenant, execute the
certificate (the “Landlord’s Certificate”) annexed hereto as Exhibit “C” certifying the
Commencement Date, the Rent Commencement Date and the Expiration Date of this Lease and such dates
shall be deemed conclusive for purposes of this Article and this Lease.




          (b) Notwithstanding the foregoing, Tenant shall be permitted access to the Premises no more
than three (3) weeks prior to the Commencement Date, without charge, for the purposes of installing
wiring for telephone/data communication systems and for installation of any and all furniture and
personal property in the Premises. Tenant is fully responsible at its sole cost and expense and
exclusive of the Allowance (as hereinafter defined), for the installation and maintenance of the
foregoing.




     4. USE OF PREMISES.



          (a) Tenant shall use the Premises only for general office purposes and other related uses
only. No signs of any kind shall be installed or maintained in the Premises, which shall be visible
from outside the Premises.




          (b) Tenant, at its expense, shall comply with all laws, orders and regulations of Federal,
State and municipal authorities and with any direction of any public officer which shall impose any
violation, order or duty upon Landlord or Tenant with respect to the use of the Premises to the
extent that any such law, order, regulation or direction is enacted, or first becomes effective,
after the Commencement Date. Tenant shall have the right to contest any such law, order, regulation
or direction, in good faith, provided that no such contest exposes

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Landlord to any liability, fine, penalty or expense as a result thereof and Tenant shall
defend, indemnify and hold Landlord harmless from and against any such liability, fine, penalty or
expense including reasonable attorneys fees. Landlord shall, at its cost, comply with all laws,
orders, regulations or directions with respect to the Premises except those relating to Tenant’s
use of the Demises Premises. Tenant shall not do or permit to be done any act or thing upon the
Premises, which will invalidate or be in conflict with fire, public liability or other insurance
policies covering the Premises.




          (c) Tenant, at its expense, shall comply with all rules, orders, regulations and requirements
of the Board of Fire Underwriters or other similar body or authority having jurisdiction and shall
not do or permit anything to be done in or upon the Premises, or bring or keep anything therein,
which is prohibited by the applicable fire department, fire marshal or any such Board of Fire
Underwriters or other body or authority, or which would increase the rate of fire insurance
applicable to the Premises over that in effect on the Commencement Date.




     5. RENT.



          (a) Each Lease Year (as hereinafter defined), Tenant shall pay to Landlord Base Rent, without
setoff or deductions of any kind, in equal monthly installments, in advance, on the first day of
each calendar month of the Term at the address of Landlord stated above or such other place as
Landlord may designate in writing from time to time, with payment in advance of appropriate
fractions of a monthly payment for any portion of a month at the commencement and termination of
the Term. The first monthly installment of Base Rent shall, however, be payable on the execution
hereof. Every amount payable by Tenant hereunder in addition to Base Rent shall be deemed
Additional Rent, which shall be paid without setoff or deductions of any kind on demand. Base Rent
and Additional Rent are herein collectively called “Rent”. Any Rent not paid by Tenant within ten
(10) days after its due date shall thereafter be payable with a late charge equal to five (5%)
percent of the unpaid rent installment, as Additional Rent.




          (b) Tenant’s obligation to pay Base Rent under this Lease shall commence on the Rent
Commencement Date.




          (c) The obligation of Tenant to pay all sums of Additional Rent and the Electrical Inclusion
Amount shall commence on the Commencement Date of the Lease and there shall be no abatement
whatsoever of the obligation of Tenant to pay such sums during any period or part of any lease year
during the term of the Lease.




          (d) The term “Lease Year” shall mean a period of twelve (12) consecutive calendar months. The
first “Lease Year” shall commence on the Rent Commencement Date, and shall end with the expiration
of the next succeeding twelve (12) months, plus the number of days, if any, required to have the
period end at the expiration of the calendar month, and each Lease Year shall run consecutively
thereafter.




     6. CONDITION OF PREMISES. Landlord shall deliver the Premises to Tenant in the
condition which the Premises exist as of the date hereof and Tenant shall accept the Premises



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in a strictly “as is” condition. Tenant acknowledges that Tenant has inspected, or been given the
opportunity to inspect the Premises prior to entering into this Lease and Tenant acknowledges that
Landlord has made absolutely no warranties or representations concerning the Premises, or their
condition, except that Landlord represents that all Building systems servicing the Premises shall
be in good working order and condition as of the Commencement Date.



     7. INCREASE IN OPERATING EXPENSES.



          (a) The base year (the “Base Year”) for purposes of this Lease shall be the calendar year
2005. “Operating Expenses” shall mean the expenses incurred by Landlord in the operation,
administration and maintenance of the Premises and of the “Common Areas” of Corporate Campus 1,
other than the Premises and all other demised premises in Corporate Campus 1 designated for
occupancy by tenants, in a first class manner and in accordance with sound and reasonable practices
for facilities of a like kind and character in accordance with (and subject to) Exhibit “E”
hereto. Operating Expenses for the Common Areas shall include, without limitation, all expenses
incurred by Landlord in connection with the Campus Road and sewage pump station and related
equipment serving Corporate Campus I which, in accordance with generally accepted accounting
principles consistently applied, as applied to the operation and maintenance of first-class office
parks, are properly chargeable to the operation and maintenance of Corporate Campus 1. Tenant’s
proportionate share of Operating Expenses for Corporate Campus I is 1.804% (“Tenant’s Proportionate
Share Park”); Tenant’s proportionate share of Operating Expenses of the Building is 8.588%
(“Tenant’s Proportionate Share Building”). (“Tenant’s Proportionate Share Park” and “Tenant’s
Proportionate Share Building” are hereinafter referred to, collectively, as “Tenant’s Proportionate
Shares”). Tenant’s Proportionate Shares shall also apply to Increases in Real Estate Taxes as
provided in Article 8 hereof. Tenant’s Proportionate Shares shall be adjusted, as necessary, to
reflect increases or decreases in the total rentable square feet contained in Corporate Campus 1,
resulting from construction or demolition of space therein, or any other cause, other than
temporary vacancy in Corporate Campus I for which Landlord is willing to accept tenancies.




          (b) After the expiration of the Base Year and of each Operational Year (as hereinafter
defined), Landlord shall furnish Tenant a written statement prepared by Landlord of the Operating
Expenses incurred for such year (“Landlord’s Statement”). Tenants Proportionate Shares of any
increase of Operating Expenses during any Operational Year over the Operating Expenses in the Base
Year shall be referred to herein as the “Cost Increases”. Landlord shall retain and make available
for inspection by Tenant all the records reflected in Landlord’s statement as to each Operational
Year for a period of 180 days after rendering a statement to Tenant (the “Inspection Period”), and
Tenant shall be entitled, on reasonable notice, to inspect same at any time during the Inspection
Period, at Landlord’s office, provided that Landlord shall have the right to change such address on
notice to Tenant. In the event Tenant shall dispute Landlord’s Statement, Tenant shall, within the
Inspection Period, deliver to Landlord a statement (“Tenant’s Statement”) specifying the
inaccuracies in Landlord’s Statement, with reasonable detail. If Landlord and Tenant cannot, within
thirty (30) days of Landlord’s receipt of Tenant’s Statement, resolve their differences, Landlord
and Tenant shall, within fifteen (15) days thereafter, agree on a national certified public
accounting firm to undertake a review thereof and to fix, in writing, the Operating Expenses and
the Cost Increases in accordance with the terms of

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this Lease (the “Review”) which shall be final and binding on Landlord and Tenant. The certified
public accounting firm shall be charged with completion of the Review within a thirty (30) day
period. Where Landlord and Tenant cannot timely agree on a national certified public accounting
firm for the foregoing, Landlord and Tenant shall each select a member of a national certified
public accounting firm who shall be directed to select a national certified public accounting firm
to undertake the Review. Where the result of the Review discloses a variation in Operating Expenses
from that asserted by Landlord of more than seven and one-half percent (7.5%), the charges of the
national certified public accounting firm shall be paid by Landlord; where the variation is more
than five (5%) percent but not in excess of seven and one-half (7.5%) percent, same shall be shared
equally by Landlord and Tenant, and where five (5%) percent or less, by Tenant. Tenant shall pay to
Landlord any amounts in dispute pending resolution in accordance with the above procedure.




          In the event Tenant shall not deliver to Landlord Tenant’s Statement as to any Operational
Year prior to expiration of the applicable Inspection Period, Landlord’s Statement for such
Operational Year shall be deemed accurate in all regards.




          (c) Each calendar year after the Base Year shall be referred to herein as an “Operational
Year”. Commencing with the first Operational Year, Tenant shall pay to Landlord, as Additional
Rent, Tenant’s Projected Shares. Such “Projected Shares” shall be equal to Landlord’s written
estimate of Tenant’s Proportionate Shares of the Cost Increases for the Operational Year. On the
first day of each month of each Operational Year during the Term, and within thirty (30) days after
Tenants receipt of Landlord’s written estimate, Tenant shall pay to Landlord one-twelfth (1/12) of
its Projected Shares of the estimated Cost Increases for such Operational Year. If Landlord’s
statement after the end of an Operational Year shall indicate that Tenant’s Projected Shares exceed
Tenant’s Proportionate Shares of Cost Increases, Landlord shall forthwith credit the amount of such
excess against the subsequent payments of Additional Rent due hereunder. If Landlord’s statement
shall indicate that Tenant’s Proportionate Shares of Cost Increases exceeded Tenant’s Projected
Shares for the completed Operational Year, Tenant shall forthwith pay the amount of such excess to
Landlord.




          (d) Landlord’s failure to render Landlord’s Statement with respect to any Operational Year or
Tax Year (as defined in Article 8 below), or Landlord’s delay in rendering said statement shall not
prejudice Landlord’s right to render a Landlord’s Statement with respect to that or any subsequent
Operational Year or Tax Year. The obligations of Landlord and Tenant under this Article 7 with
respect to any Additional Rent, which obligations have accrued prior to the termination of the
Term, shall survive the termination of the Term.




     8. INCREASE IN REAL ESTATE TAXES. If Real Estate Taxes (as hereinafter defined)
with respect to the Common Areas or the Premises are increased, at any time or from time to time
during the Term hereof over Real Estate Taxes paid by Landlord during the “Tax Base Year” as
defined hereinbelow, then Tenant shall pay to Landlord, as Additional Rent, an amount equal to
Tenant’s Proportionate Shares of such increase (the “Tax Increases”). The Tax Base Year shall be
July 1, 2004 through and including June 30, 2005. Payment of such increases shall be made in the
installments provided by the taxing authority, within fifteen (15) days after Tenant receives from
Landlord notice of such tax increase and a bill for Tenant’s Proportionate



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Shares thereof. Notwithstanding the foregoing, at Landlord’s option, Tenant shall pay to
Landlord, commencing with the first Tax Year after the Base Tax Year, as Additional Rent, Tenant’s
Projected Tax Shares. Such Projected Tax Shares shall be equal to Landlord’s written estimate of
Tenant’s Proportionate Shares of the Tax Increase for each Operational Year. On the first day of
each month of each Operational Year during the Term, and within thirty (30) days after Tenant’s
receipt of Landlord’s written estimate, Tenant shall pay to Landlord one-twelfth (1/12) of its
Projected Shares of the estimated Tax Increases for such Operational Year. If Landlord’s statement
after the end of an Operational Year shall indicate that Tenant’s projected Shares exceeded
Tenant’s Proportionate Shares of the Tax Increases, Landlord shall forthwith credit the amount of
such excess against the subsequent payments of Additional Rent due hereunder. If Landlord’s
statement shall indicate that Tenant’s Proportionate Shares of the Tax Increases exceeded Tenant’s
Projected Tax Shares for the completed Operational Year, Tenant shall forthwith pay the amount of
such excess to Landlord. “Real Estate Taxes” shall mean all taxes or assessments and governmental
charges, whether Federal, State or municipal, which are levied or charged against real estate,
personal property or rents, or on the right or privilege of leasing real estate or collecting rents
thereon and any other taxes and assessments attributable to Corporate Campus 1, the Building or the
Premises or their operation, excluding, however, Federal, State or other general income taxes not
limited to real property. Real Estate Taxes allocable to the Common Areas shall consist of (a) 100%
of the Real Estate Taxes on Corporate Campus I excluding Real Estate Taxes on any portion of the
Building designated for occupancy by tenants; and (b) 100% of the taxes on the main road (Campus
Road) and the sewage treatment plant servicing the Park. “Tax Year” shall mean each fiscal year of
July 1 through June 30 following the Tax Base Year.



     9. ALTERATIONS, IMPROVEMENTS, ALLOWANCE, ETC.



          (a) All alterations, improvements or additions made by Landlord or Tenant upon the Premises,
except furniture, light fixtures, office equipment, or movable partitions or trade fixtures
installed at the expense of Tenant, shall be the property of Landlord and shall remain and be
surrendered with the Premises as a part thereof at the termination of this Lease, without
compensation to Tenant, unless Landlord, at the time that it consents to Tenant’s changes or
alterations, elects to have them removed by Tenant, in which event the same shall be removed from
the Premises by Tenant at Lease expiration, at Tenant’s expense.




          (b) Tenant shall not make any alterations, installations, improvements, additions or other
physical changes in or about the Premises (“Alterations”) without Landlord’s prior consent.
Landlord’s consent shall not be required with regard to any nonstructural Alteration that costs
less than $25,000.00 (provided that Tenant shall notify Landlord of the same and otherwise comply
with the provisions of this Article 9 with respect thereto), and Landlord shall not unreasonably
withhold its consent to any other proposed nonstructural Alteration. Landlord shall not be
responsible for any effect on the Premises systems caused by any such alterations for which Tenant
does not obtain Landlord’s consent. An Alteration shall be deemed nonstructural if the Alteration
(i) is not visible from the outside of the Premises, (ii) does not adversely affect any service
required to be furnished by Landlord to Tenant, (iii) does not adversely affect the proper
functioning of any Premises system, (iv) does not adversely reduce the value or utility of the
Premises, (v) does not affect the certificate of occupancy for the

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Premises, and (vi) does not affect any ceiling slab, floor slab, load-bearing column, load-bearing
wall, exterior wall or exterior window, of the Premises.




          (c) Prior to making any Alterations, Tenant shall: (i) submit to Landlord detailed plans and
specifications (including layout, architectural, mechanical and structural drawings) for each
proposed Alteration, and shall not commence any such Alteration without first obtaining Landlord’s
approval of such plans and specifications, which, in the case of nonstructural Alterations, shall
not be unreasonably withheld; (ii) at Tenant’s expense, obtain all permits, approvals and
certificates required by any governmental authorities; and (iii) furnish to Landlord certificates
evidencing worker’s compensation policies (covering all persons to be employed by Tenant, and by
Tenant’s contractors and subcontractors, in connection with such Alteration) and comprehensive
commercial) public liability (including property damage coverage) insurance in such form, with such
companies, for such periods and in such amounts as Landlord may reasonably approve, naming Landlord
and its agents, any ground lessor and any mortgagee, as additional insureds. Upon completion of all
Alteration, Tenant, at Tenant’s expense, shall obtain certificates of final approval of such
Alteration required by any governmental authority and shall furnish Landlord copies thereof,
together with the “as-built” plans and specifications (“as-built drawings”) for such Alteration, it
being agreed that all filings with governmental authorities to obtain such permits, approvals and
certificates shall be made at Tenants’ expense. Provided that such drawings shall be certified as
correct by Tenant’s architect and satisfy the requirement of any governmental authorities to which
Landlord or Tenant shall be required to submit as-built drawings, Tenant’s obligation to furnish
as-built drawings to Landlord may be satisfied by the furnishing of appropriate marked “MEP”
drawings, architectural drawings and/or Tenant’s contractors “shop” drawings. All Alterations shall
be made and performed substantially in accordance with the plans and specifications therefor as
approved by Landlord, all applicable laws and any construction rules and regulations promulgated by
Landlord from time to time. All materials and equipment to be incorporated in the Premises as a
result of any Alterations or a part thereof shall be of a quality at least equal to the quality of
the Premises, and no such materials or equipment shall be subject to any lien, encumbrance, chattel
mortgage or title retention or security agreement.




          (d) If Landlord shall fail to respond to a request by Tenant to approve Tenant’s plans and
specifications for any nonstructural Alteration within seven (7) business days, or within five (5)
business days with respect to any resubmission of previously disapproved plans, after Landlord’s
receipt thereof (provided in each instance the same shall be of a scope and scale reasonably
susceptible of review in such periods), Landlord shall be deemed to have approved such plans and
specifications. Any disapproval given by Landlord shall be accompanied by a statement of the
reasons for such disapproval. Landlord reserves the right to disapprove any plans and
specifications in part, to reserve approval of items shown thereon (the “Pending Items”) pending
Landlord’s review and approval of other plans and specifications for other items which may impact
the Pending Items, and to condition Landlord’s approval upon Tenant making revisions to the plans
and specifications or supplying additional information. In order for Landlord to be deemed to have
given approval to any plans and specifications submitted (or resubmitted) by Tenant, the same must
be accompanied by a notice which identifies the architect or engineer who prepared said plans and
specifications, and which bears the following legend typed in bold, capital letters at the top: “IF
LANDLORD SHALL FAIL TO APPROVE OR

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DISAPPROVE THE ENCLOSED PLANS AND SPECIFICATIONS WITHIN THE TIME PERIODS SPECIFIED IN ARTICLE
9(d) OF THE LEASE, LANDLORD SHALL BE DEEMED TO HAVE APPROVED SUCH PLANS AND SPECIFICATIONS.” Any
review or approval by Landlord of any plans and/or specifications or any preparation or design of
any plans by Landlord’s architect or engineer (or any architect or engineer designated by Landlord)
with respect to any Alteration shall be solely for Landlord’s benefit, and without any
representation or warranty whatsoever to Tenant or any other person with respect to the compliance
thereof with any laws or to the adequacy, correctness or efficiency thereof or otherwise.




          (e) All Alterations shall be performed at Tenant’s own cost and expense, by Tenant’s
contractors, subcontractors or mechanics approved by Landlord with such approval not to be
unreasonably withheld or delayed. At Tenant’s request, Landlord shall furnish Tenant with a list of
at least three (3) contractors who may perform Alterations to the Premises on behalf of Tenant. If
Tenant engages any contractor set forth on the list, Tenant shall not be required to obtain
Landlord’s consent for such contractor unless, prior to entering into a contract with such
contractor, such contractor has been removed from the list, provided, however, said list shall at
all times contain the names of at least three (3) contractors.




          (f) With respect to any Alteration affecting, any Premises system, the Alteration shall, at
Tenant’s cost and expense, be designed by Tenant’s engineer for the relevant Premises system,
subject to review and approval at Tenant’s cost and expense, by Landlord’s engineer. Within thirty
(30) days after being billed therefor, Tenant shall reimburse Landlord, as additional
rent, for the reasonable and actual expenses incurred by Landlord in connection therewith (the
“Engineering Fee”).




          (g) Any mechanic’s lien filed against the Building or the Premises for work claimed to have
been done for, or materials claimed to have been furnished to, Tenant, shall be discharged by
Tenant, at Tenant’s expense, within thirty (30) days after Tenant shall have received notice
thereof, by payment or filing the bond required by law. Tenant shall not, at any time prior to or
during the Term, directly or indirectly employ, or permit the employment of, any contractor,
mechanic or laborer at the Premises, whether in connection with any Alteration or otherwise, if
such employment would interfere or cause any conflict with other contractors, mechanics or laborers
engaged in the maintenance or operation of the Building by Landlord, Tenant or others, or of any
adjacent property owned by Landlord. In the event of any such interference or conflict, Tenant,
upon demand of Landlord, shall cause all contractors, mechanics or laborers causing such
interference or conflict to leave the Premises immediately.




          (h) In addition to the Engineering Fee, Tenant shall pay to Landlord or to Landlord’s agent
from time to time during the performance of any Alterations, within thirty (30) days after demand
therefor and as additional rent, an amount equal to the out-of-pocket costs incurred by Landlord in
connection with each such Alteration (the “Alteration Fee”).




          (i) Landlord shall provide Tenant with an allowance of up to $15.00 per rentable square foot
allocated to the Premises ($124,680.00) (the “Allowance”) for Tenant’s initial Alterations in the
Premises. The Allowance shall be paid by Landlord to Tenant upon receipt of invoices from Tenant
along with a waiver of lien for the funds to be disbursed under each respective invoice from

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each contractor participating in the initial Alterations. Tenant agrees that the Allowance may not
be used for “soft costs” (i.e. architectural fees and expenses) associated with the initial
Alterations. In the event the Allowance is not fully utilized by Tenant, Landlord shall not be
required to reimburse Tenant the balance of the Allowance.




     10. REPAIRS.



          (a) The Building and the Property and the chillers and related equipment that are part of the
Common HVAC System (as defined in Exhibit “F” attached hereto), which are located within
the Building, and all other parts of the Building systems which are not within the Premises, shall
be maintained in good order and condition and repaired by Landlord at its expense, except to the
extent resulting from the negligence or wrongful act of Tenant, its employees, agents or invitees,
in which event Landlord shall maintain and repair same at Tenant’s expense and Tenant shall
reimburse Landlord for the cost of same upon demand.




          (b) Tenant, at its expense, shall maintain in good order and condition and repair the interior
of the Premises, including without limitation, all Premises systems within the Premises, except as
set forth in Article 10(a) above, provided that any repairs to, or replacements of the Building
systems within the Premises shall be performed by Landlord, at Tenant’s expense. Tenant shall keep
the interior of the Premises clean and orderly in accordance with Landlord’s standards for the
Premises and the Park.




          (c) As used in this Article 10 the term “repair” shall include replacement when required in
Landlord’s reasonable opinion.




     11. PARKING. Parking for the Premises is provided by way of a surface parking area
and a parking deck, which provide parking spaces for the Premises and the Building. Tenant and its
agents, employees and invitees shall have the right to use said surface parking area and parking
deck, on a non-reserved basis and at no additional cost to Tenant, in common with tenants of the
Building and their agents, employees, and invitees. At all times during the term of this Lease,
there shall be at least four (4) parking spaces for every 1,000 rentable square feet attributable
to the Premises in said surface parking area and parking deck, of which four (4) spaces shall be
reserved for Tenant’s executive employees at locations set forth on Exhibit “H” annexed
hereto.



     12. UTILITIES AND SERVICES.



          (a) Mondays through Fridays from 8:00 A.M. to 6:00 P.M. and Saturdays from 8:00 A.M. to 1:00
P.M. (except the days observed by the Federal or State governments as legal holidays), Landlord
shall furnish and distribute to the Premises air conditioning and heat with a system designed in
accordance with Exhibit “F” hereto. If Tenant shall require air conditioning or heat at any
other time (“after-hours”), Landlord shall furnish after-hours air conditioning and heat upon
reasonable advance notice from Tenant, and Tenant shall pay Landlord’s costs (direct and related)
therefor on Landlord’s demand. The current charge for after hours heat is $40.00 per hour and for
after hours air conditioning is $75.00 per hour, which charges are subject to revision.




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          (b) Landlord shall supply reasonably adequate quantities of water to the Premises for ordinary
lavatory and drinking purposes.




          (c) Landlord shall cause the Premises to be cleaned in accordance with Exhibit “G”
hereto; provided that to the extent any area is used for the preparation, dispensing or consumption
of food or for a computer room, data processing or similar equipment and requires additional
cleaning, Tenant shall pay to Landlord the premium charged for same by Landlord’s cleaning
contractor.




          (d) In no event shall Landlord be required to provide any security services to the Premises.
Tenant shall supply such security services to the Premises as Tenant requires and at Tenant’s sole
cost and expense, subject to Landlord’s prior approval of plans, provided that Landlord’s consent
shall not be required to the extent the work is nonstructural, as defined in Article 9(b) hereof.
As of the Commencement Date, Landlord shall provide twenty-five (25) card keys to Tenant for its
employees at Landlord’s sole cost and expense. In the event Tenant requires additional or
replacement card keys during the Term, same shall be provided by Landlord to Tenant at Tenant’s
expense.




          (e) Landlord does not warrant that any of the services referred to above, or any other
services which Landlord may supply, will be free from interruption, Tenant acknowledging that any
or more such services may be suspended by reason of accident or of repairs, alterations or
improvements necessary to be made, or by strikes or lockouts, or by operation of law, or causes
beyond the reasonable control of Landlord. Any such interruption or discontinuance of service shall
not be deemed an eviction or disturbance of Tenants use and possession of the Premises, or any part
thereof, or render Landlord liable to Tenant for damages by abatement of Rent or otherwise, or
relieve Tenant from performance of Tenant’s obligations under this Lease.




     13. LIABILITY INSURANCE.



          (a) Tenant shall obtain and keep in full force and effect (i) an “all risk” insurance policy
for all improvements made by Tenant to the Premises (including, without limitation, Tenant’s
Alterations), to the extent that such improvements are above “Premises standard” (examples of which
are set forth in Article 9(a) hereof) and Tenant’s property at the Premises, and (ii) a policy of
commercial general liability and property damage insurance on an occurrence basis, with a broad
form contractual liability endorsement. Such policies shall provide that Tenant is named as the
insured. Landlord, Landlord’s managing agent, and any ground lessors and any mortgagees (whose
names shall have been furnished to Tenant) shall be named as additional insured, as their
respective interests may appear with respect to the insurance required to be carried pursuant to
clause (i) above, and to the extent of the named insured’s negligence with respect to the insurance
required to be carried pursuant to clause (ii) above. Such policy with respect to clause (ii) above
shall include a provision under which the insurer agrees to indemnify and hold Landlord, Landlord’s
managing agent, Landlord’s agent and such lessors and mortgagees harmless from and against, subject
to the limits of liability set forth in this Article 13(a), all cost, expense and liability arising
out of or based upon, any and all claims, accidents, injuries and damages mentioned in Article
38(c) hereof. In addition, the policy required to be carried pursuant to clause (ii) above shall
contain a provision that (a) no act or

10









 








omission of Tenant shall affect or limit the obligation of the insurer to pay the amount of any
covered loss sustained, and (b) the policy shall provide that Landlord shall receive at least
thirty (30) days’ written notice of any-cancellation thereof. The policy required pursuant to this
Article 13 shall be for a combined single limit with respect to each occurrence in an amount of
$3,000,000 for injury (or death) to personal and damage to property, which amount may be increased
(not more frequently than one (1) time in every three (3) years) to that amount of insurance which
in Landlord’s reasonable judgment is then being customarily required by prudent landlords of first
class demised premises in New Haven County of tenants having substantially similar office or
ancillary uses to those of Tenant. All insurance required to be carried by Tenant pursuant to the
terms of this Lease shall be effected under valid and enforceable policies issued by reputable and
independent insurers licensed to do business in the State of Connecticut, and rated in Best’s
Insurance Guide, or any successor thereto (or if there be none, an organization having a national
reputation) as having a general policy holder rating of “A” and a financial rating of at least
“XIII”. No failure on Tenant’s part to maintain any of the insurance required pursuant to this
Article 13 shall vitiate Tenant’s liability to indemnify Landlord and all other parties named
herein as additional insureds from and against all claims, damages, loss, liability and expense
which would otherwise have been covered by such insurance coverage.




          (b) On or prior to the Commencement Date, Tenant shall deliver to Landlord the appropriate
certificates or insurance, (including evidence of waiver of subrogation required pursuant to
Article 13(d) hereof required to be carried by Tenant pursuant to this Article 13. Evidence of each
renewal or replacement of a policy shall be delivered by Tenant at least twenty (20) days prior to
the expiration of such policy.




          (c) Tenant agrees that Landlord shall not be obligated to carry insurance on, and shall not be
responsible for damage to any improvements made to the Premises (including without limitation,
Alterations or Tenant’s personnel property at the Premises), and that Landlord shall not carry
insurance against, or be responsible for any loss suffered by Tenant due to, interruption of
Tenant’s business.




          (d) The parties hereto shall procure an appropriate clause in, or endorsement on, any fire or
extended coverage insurance covering the Premises and personal property, fixtures and equipment
located thereon or therein, pursuant to which the insurance companies waive subrogation or consent
to a waiver of right of recovery and having obtained such clauses or endorsements of waiver of
subrogation or consent to a waiver of right of recovery, and each party on behalf of itself and all
persons claiming under or through such party by subrogation or otherwise hereby releases the other
party and agrees that it will not make any claim against or seek to recover from the other for any
loss or damage to its property or the property of others resulting from fire or other hazards
covered by such fire and extended coverage insurance, provided, however, that the release,
discharge, exoneration and covenant not to sue herein contained shall be limited by and be
coextensive with the terms and provisions of the waiver of subrogation clause or endorsements or
clauses or endorsements consenting to a waiver of right of recovery. If the payment of an
additional premium is required for the inclusion of such waiver of subrogation provision, each
party shall advise the other of the amount of any such additional premiums and the other party at
its own election may, but shall not be obligated to, pay the same.




11









 







If such other party shall not elect to pay such additional premium, the first party shall not be
required to obtain such waiver of subrogation provision. If either party shall be unable to obtain
the inclusion of such clause even with the payment of an additional premium, then such party shall
attempt to name the other party as an additional insured (but not a loss payee) under the policy.




          (e) Landlord represents to Tenant that during the Term, Landlord shall maintain comprehensive
property, casualty and liability insurance coverage for Corporate Campus 1 in amounts as required
by its current mortgagee. Landlord further represents that said coverage will be in amounts no
less than the coverage to be maintained pursuant to this Article 13.




     14. SUBORDINATION.



          (a) This Lease is and shall be subject and subordinate to (i) any and all mortgages now or
hereafter affecting the fee title of the Property, and to any and all present and future
extensions, modifications, renewals, replacements and amendments thereof; and (ii) any and all
ground or underlying leases now or hereafter affecting the Property or any part thereof and to any
and all extensions, modifications, renewals, replacements and amendments thereof. Such
subordination shall be automatic provided that Tenant shall execute and deliver to any present or
future mortgagee such documentation as shall be required by such mortgagee to confirm such
subordination. Landlord shall request and use its reasonable good faith efforts to obtain for
Tenant a non-disturbance agreement from any present or future or ground lessor provided that
Landlord shall have no liability to Tenant in the event Landlord is unable to obtain such
agreement. Tenant will execute and deliver promptly to Landlord any certificate or instrument which
Landlord, from time to time, may request for confirmation of the provisions of this Article 14.




          (b) If at any time prior to the expiration of the Term, any superior lease shall terminate or
be terminated for any reason or any mortgagee comes into possession of the Property or the estate
created by any superior lease by receiver or otherwise, Tenant agrees, at the election and upon
demand of any owner of the Property, or of the lessor, or of any mortgaged in possession of the
Property, to attorn, from time to time, to any such owner, lessor or mortgagee or any person
acquiring the interest of Landlord as a result of any such termination, or as a result of a
foreclosure of the mortgage or the granting of a deed in lieu of foreclosure, upon the then
executory terms and conditions of this Lease, subject to the provisions of Article 14(a) hereof,
and this Article 14(b) for the remainder of the Term, provided that such owner, lessor or
mortgagee, or receiver caused to be appointed by any of the foregoing, as the case may be, shall
then be entitled to possession of the Premises and provided further that such owner, lessor or
mortgagee, as the case may be, or anyone claiming by, through or under such owner, lessor or
mortgagee, as the case may be, including a purchaser at a foreclosure sale, shall not be:





	 	(i)	 	liable for any act or omission of any prior
landlord (including, without limitation, the then defaulting landlord),
or




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	 	(ii)	 	subject to any defense or offsets which Tenant
may have against any prior landlord (including, without limitation, the
then defaulting landlord), or
	 
	 	(iii)	 	bound by any payment of Rent which Tenant may
have made to any prior landlord (including, without limitation, the
then defaulting landlord) more than one (l) month in advance of the
date upon which such payment was due, or
	 
	 	(iv)	 	bound by any amendment or modification of this
Lease made after the date when such mortgagee acquired its interest as
mortgagee and Tenant received notice of such mortgage, or such lessor
acquired its interest as lessor, as the case may be, without its
consent.





     15. CASUALTY.



          (a) If the Premises shall be partially damaged by fire or other casualty so that the damage
can reasonably be repaired by Landlord within 180 days from the date of the damage (90 days for any
casualty during the last year of the Term), then the damage shall be diligently repaired by and at
the expense of Landlord, and the Rent until such repairs shall be made shall be apportioned
according to the part of the Premises which is tenantable.




          (b) If the Premises is rendered wholly untenantable by fire or other casualty or is partially
damaged so that the damage cannot reasonably be repaired by Landlord within 270 days of the date of
the damage (as determined by an independent architect or contractor selected by Landlord), then in
any of such events Landlord or Tenant may, within 30 days after such casualty (or in Tenant’s case
not sooner than 15 days after receipt of the estimated restoration time from Landlord), give the
other party a notice in writing of intention to terminate this Lease, and thereupon the Term shall
expire, effective the date of the casualty, and Tenant shall vacate the Premises and surrender the
same to Landlord within 30 days after the date of the termination notice, provided that for any
casualty during the last year of the Term, the restoration period shall be 90 days, rather than 270
days. If neither party elects to terminate this Lease, the provisions of Article 15(a) shall
govern.




          (c) Landlord shall not be liable for any damage to, or be required (under any provision of
this Lease or otherwise) to repair, restore or replace, any property in the Premises, nor be liable
to Tenant for damage arising from rain or snow or from the bursting, overflowing or leakage of
water, steam or gas pipes or defect in the plumbing, HVAC, mechanical or electrical systems of the
Premises unless resulting from the gross negligence of Landlord, Tenant not being contributorily
negligent.




     16. EMINENT DOMAIN.



          (a) If the whole of the Premises shall be acquired or condemned by eminent domain for any
public or quasi-public use or purpose, or if any substantial part thereof is so

13









 








acquired or condemned as to render the Premises untenantable, or so that Landlord elects not to
restore the Premises then and in that event, the Term shall cease and terminate from the date of
taking, Tenant shall have no claim against Landlord or the condemning authority for the value of
the unexpired Term, nor a claim to any part of an award in such proceeding, and rent shall be
adjusted and paid to the date of such termination. Tenant shall, however, have the right to claim
compensation for Tenant’s moving expenses and damage to Tenant’s property in the Premises provided
that such claim does not reduce Landlord’s award.




          (b) In the event of any other condemnation of a part of the Premises or the Premises, this
Lease shall remain in effect, but the Rent shall be prorated based on that portion of the Premises
which remains tenantable; provided however, that if 10% or more of the Premises, shall be taken
and, in the reasonable opinion of Tenant, the remainder of the Premises cannot be used for the
operation of Tenant’s business in ordinary course, then Tenant may terminate this Lease by notice
to Landlord within 30 days after, notice of the taking by Landlord to Tenant, under the conditions
described in Article 16(a) above.




     17. ASSIGNMENT AND SUBLETTING.



          (a) Tenant and its subtenants shall not assign, mortgage or encumber this Lease, nor sublease
all or any part of the Premises or suffer or permit the Premises or any part thereof to be used by
others, without the prior written consent of Landlord in each instance, which consent shall not
unreasonably be withheld or delayed. If this Lease be assigned, or if the Premises or any part
thereof be sublet to or occupied by anybody other than Tenant, Landlord may, at Landlord’s option,
collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, subletting, occupancy or collection shall be deemed a
waiver of this covenant, or the acceptance of the assignee, subtenant or occupants, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained.
The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further assignment or subletting.




          (b) If Tenant wishes to assign or sublease the Premises or any part thereof, Tenant must first
offer to return the Premises to Landlord (which offer shall be made in writing). If Landlord elects
to take back the Premises it shall so notify Tenant in writing, within thirty (30) days after
receipt of Tenant’s offer, specifying the date on which this Lease shall terminate. If Landlord
does not accept Tenant’s offer, Tenant may sublease that portion of the Premises offered to
Landlord or assign this Lease, subject to Landlord’s prior written consent described in (a) above,
it being understood and agreed that such consent shall still be required notwithstanding Landlord’s
election not to take back such space.




          (c) Anything in Article 17(a) to the contrary notwithstanding, the prior written consent of
Landlord shall not be required with respect to an assignment of this Lease or a sublease of part or
all of the Premises to an entity controlled by, controlling or under common control with Tenant, or
to any entity which succeeds Tenant by merger or consolidation or by acquisition of all or
substantially all of Tenant’s stock or assets, provided that the successor entity has a net worth,
computed in accordance with GAAP, that is not less than the net worth of

14









 








Tenant prior to such transaction. For this purpose “control” shall mean the possession of the power
to direct or cause the direction of the management and policies of such entity, whether through the
ownership of a sufficient percentage of voting securities, by contract or otherwise. In connection
with any such assignment or sublease, Tenant shall give notice to Landlord at least ten (10) days
prior to the transaction and shall deliver a copy of the documentation to Landlord within ten days
after the execution of the assignment or sublease.




          (d) Tenant shall pay to Landlord as Additional Rent, within ten days after receipt of payments
from a subtenant or assignee, 50% of any “profit” on a subletting or assignment, i.e., the excess
of consideration of any type received by Tenant from the subtenant or assignee (less the reasonable
advertising, legal, brokerage and fit-up expenses incurred by Tenant in connection with such
assignment or subletting), over a pro rata portion of the Rent payable by Tenant hereunder.




          (e) Landlord shall be obligated to consent to any proposed assignment or sublease only if:





	 	(i)	 	the proposed assignee or subtenant, in
Landlord’s reasonable judgment has a business reputation and credit
record and is engaged in a business as are comparable to or compatible
with the standards of the existing tenants in the Park;
	 
	 	(ii)	 	the proposed use of the affected portion of the
Premises is permitted under the terms of this lease;
	 
	 	(iii)	 	the proposed subletting will not result in
more than two unaffiliated occupants (not including Tenant) of any
floor of the Premises.





          (f) In no event shall Landlord be obligated to consent to any proposed assignment or sublease
to any of the following entities or to an entity that intends to occupy the Premises (or portion
thereof) for any of the following purposes (as applicable):





	 	(i)	 	the operation of a bank, trust company, safe
deposit business, savings and loan association or loan company;
	 
	 	(ii)	 	employment or recruitment agency;
	 
	 	(iii)	 	school, college, university or educational
institution, whether or not non-profit;
	 
	 	(iv)	 	a government, governmental or
quasi-governmental organization, or any agency or subdivision thereof;
or
	 
	 	(v)	 	a tenant or subtenant of a tenant of Landlord
or an occupant of the or any other Premises in the Park, or any party
or entity with whom




15









 






	 	 	 	Landlord or its agents or representatives has engaged in active
negotiations for a lease in the Park during the 90-day period
immediately preceding the date of Tenant’s request for consent.





          (g) Tenant shall reimburse Landlord on demand for any out of pocket costs that Landlord may
incur in connection with a proposed assignment or sublease by Tenant, its assignees or subtenants,
including the reasonable costs of investigating the acceptability of the proposed assignee or
subtenant, charges paid to any mortgagee or ground lessor. Tenant shall pay Landlord’s reasonable
attorneys’ fees in the amount of $1,000.00 for preparation or review of documentation evidencing
Landlord’s consent to an assignment or sublease.




          (h) No assignment or subletting shall affect the continuing primary liability of Tenant
(which, following assignment, shall be joint and several with the assignee), and Tenant shall not
be released from performing any of the terms, covenants and conditions of this lease. Every
assignee, including one described in paragraph (b) above, shall in the assignment instrument,
assume all of the obligations of Tenant hereunder from and after the effective date of the
assignment.




     18. RIGHT OF CURE.



          (a) If Tenant shall default in the observance or performance of any term or covenant of this
Lease, Landlord may, after ten (10) business days written notice to Tenant to cure the default and
failure of Tenant to cure the same within such period, or at any time thereafter without notice in
event of emergency, perform the same for the account of Tenant. If Landlord makes any expenditures
or incurs any obligations in connection with a default by Tenant, including, but not limited to,
reasonable attorneys’ fees in instituting, prosecuting or defending any action or proceeding
against Tenant, such sums paid or obligations incurred, with interest (as provided below) and
costs, shall be paid by Tenant to Landlord as Additional Rent hereunder.




          (b) Any Rent not paid by Tenant within ten (10) days after the due date thereof, shall
thereafter be payable with interest at the rate of 3% per annum in excess of the prime or base rate
of Fleet Bank, N.A. (or its successor) in effect as of the due date, from the due date to the date
of payment.




          (c) Cure by Landlord pursuant to this Article 18 shall not vitiate or constitute waiver by
Landlord of the Tenant’s default.




     19. QUIET ENJOYMENT AND HOLDOVER.



          (a) Upon Tenant paying the Rent and observing and performing all the terms,
covenants and conditions on Tenant’s part to be observed and performed hereunder, Tenant may
peaceably and quietly enjoy the Premises, free from any interference, molestation or acts of
Landlord or of anyone claiming by, through or under Landlord, subject, nevertheless, to the terms
and conditions of this Lease and to any ground lease, underlying leases and mortgages as
hereinbefore provided.




16









 








          (b) If Tenant retains possession of the Premises or any part thereof after the Expiration Date
or earlier termination date without the written consent of Landlord, Tenant’s occupancy (the
“Holdover Occupancy”) shall be under all of the terms and conditions of this Lease, except that (i)
the tenancy shall be at will; (ii) the Base Rent for the Holdover Occupancy shall be 200% of that
specified herein for the month preceding the termination; and (iii) Tenant shall indemnify and hold
Landlord harmless for all damages sustained and liabilities incurred by Landlord, including
consequential damages, as a result of Tenant’s continued occupancy beyond sixty (60) days after
Landlord’s notice to Tenant under this Article 19(b) it being understood that the foregoing shall
not be deemed license or permission by Landlord for Tenant to holdover.




     20. DEFAULT.



          (a) If (i) Tenant defaults in the payment when due of any installment of Rent for more than
ten (10) days after written notice that the same is due; (ii) the Premises become abandoned,
provided that failure to occupy, if Tenant initially occupied the Premises, and is thereafter
performing all of its other obligations under this Lease, shall not be a default under this Lease;
or (iii) Tenant defaults in fulfilling any other covenant of this Lease and Tenant fails to remedy
such default within twenty (20) days after written notice by Landlord to Tenant specifying the
nature of such default (or if the said default cannot be completely cured or remedied within said
twenty (20) day period and Tenant shall not have diligently commenced curing such default within
such twenty (20) day period and shall not thereafter in good faith diligently proceed to remedy or
cure such default), then Landlord may, by notice to Tenant, cancel this Lease, and this Lease and
the Term hereunder shall end and expire as fully and completely as if the date of cancellation were
the day herein definitely fixed for the end and expiration of this Lease and the Term hereof.
Tenant shall then quit and surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided.




          (b) If (i) the notice provided for in paragraph (a) above shall have been given and the Term
shall expire as aforesaid, or (ii) any execution shall be issued against Tenant or any of Tenant’s
property, whereupon the Premises shall be taken or occupied or attempted to be taken or occupied by
someone other than Tenant, then and in any of such events; Landlord may, without notice, re-enter
the Premises, and dispossess Tenant and the legal representative of Tenant or other occupant of the
Premises, by summary proceedings or otherwise, and remove their effects and hold the Premises as if
this Lease had not been made. Tenant hereby waives the service of notice of intention to re-enter
or to institute legal proceedings to that end, but Tenant shall remain liable as hereinafter
provided.




     21. REMEDIES OF LANDLORD. In case of any such default, re-entry, expiration
and/or dispossession by summary proceedings or otherwise, (a) the Rent shall become due thereupon
and be paid up to the time of such re-entry, dispossession and/or expiration, together with such
reasonable expenses as Landlord may incur for counsel fees, brokerage and/or putting the Premises
in good order, or for preparing the same for re-rental; (b) Landlord may re-let the Premises or any
part or parts thereof, either in the name of Landlord or otherwise, for a term or terms, which may
at Landlord’s option be less than or exceed the period which would otherwise have constituted the
balance of the Term, and may grant concessions of free rent; and/or (c) Tenant or the legal
representatives of Tenant shall also pay Landlord any deficiency between (i) the Rent hereby
reserved and/or covenanted to be paid, and (ii) the net amount, if any, of the



17









 







rents collected on account of the lease or leases of the Premises for each month of the period
which would otherwise have constituted the balance of the Term. There shall be added to such
deficiency such expenses as Landlord may incur in connection with re-letting the Premises,
including without limitation, counsel fees, brokerage commissions and expenses incurred in
maintaining the Premises in good order and in connection with renovating and preparing the same for
re-letting. Any such Rent deficiency shall be paid in monthly installments by Tenant on the rent
day specified in this Lease, and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Landlord to collect the deficiency for any
subsequent month or months by a similar proceeding. In addition, Landlord shall have the
alternative of commencing suit against Tenant at any time for an amount equal to the Rent reserved
for the balance of the Term less the fair and reasonable rental value of the Premises for the same
period. For this purpose it shall be presumed that the Additional Rent payable under this Lease
shall increase by 5% per annum from the Additional Rent payable in the Lease Year preceding the
default. Landlord, at its option, may make such alterations, repairs, replacements and/or
decorations in the Premises, as Landlord considers advisable for the purpose of re-letting the
Premises; and the making of such alterations and/or decorations shall not operate or be construed
to release Tenant from liability hereunder as aforesaid. The failure of Landlord to re- let the
Premises or any part thereof shall not release or affect Tenant’s liability for continued Rent or
damages hereunder, nor shall Landlord in any event be liable in any way whatsoever for failure to
re-let the Premises. In the event of a breach by Tenant of any of the covenants or provisions
hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity, as if re-entry, summary proceedings and other remedies were not herein provided
for. Mention in this Lease of any particular remedy shall not preclude Landlord from any other
remedy, in law or in equity.



     22. RIGHT TO EXHIBIT PREMISES AND ACCESS TO PREMISES.



          (a) Landlord reserves the right to enter the Premises and the Premises and exhibit same at any
reasonable time upon at least twenty-four (24) hour prior notice, which notice can be, verbal, (i)
to prospective mortgagees, purchasers and ground lessees and (ii) to prospective tenants at any
time within one year prior to the expiration of the Term.




          (b) Landlord reserves the right to have its employees and agents enter the Premises at any
reasonable time on reasonable notice, which can be verbal, (and at any time in case of emergency)
in order to gain access to any utility area, which utility area contains equipment and systems for
the Premises, and in order to effect necessary repairs and replacements. Such agents may bring
necessary tools and equipment with them and may store same within the Premises.




          (c) Landlord shall have the right to enter the Premises, without notice, in the event of an
emergency, and Tenant shall provide Landlord with access through Tenant’s security system for such
purpose.




     23. BROKERAGE. Tenant warrants and represents it has not had or dealt with any
realtor, broker or agent in connection with the negotiations of this Lease, except for the Broker.
Landlord shall pay the commission that is due to the Broker, pursuant to a separate agreement.



18









 




Tenant shall pay and to hold Landlord harmless from any cost, expenses or liability (including
costs of suit and attorneys’ fees) for any compensation, commission or charges claimed by any
realtor, broker or agent with respect to this Lease and the negotiation thereof, other than a claim
of the Broker or a claim based upon any written agreement between such person and Landlord.




     24. FORCE MAJEURE. Landlord and Tenant, respectively, shall not be in default
hereunder if such party is unable to fulfill or is delayed in fulfilling any of its obligations
hereunder, including, without limitation, any, obligations to supply any service hereunder, or any
obligation to make repairs or replacements hereunder, if such party is prevented from fulfilling or
is delayed in fulfilling such obligations by reason of fire or other casualty, strikes or labor
troubles, governmental preemption in connection with a national emergency, shortage of supplies or
materials, or by reason of any rule, order or regulation of any governmental authority, or by
reason of the condition of supply and demand affected by way or other emergency, or any other cause
beyond its reasonable control. Such inability or delay by Landlord or Tenant in fulfilling any of
their respective obligations hereunder shall not affect, impair or excuse the other party hereto
from the performance of any of the terms, covenants, conditions, limitations, provisions or
agreements hereunder on its part to be performed, nor result in any abatement of Rent. Tenant shall
not, however, be excused hereunder from the prompt and full payment of Rent, or the performance of
any obligation under this Lease that can be satisfied with the payment of money, for any cause
specified in this Article 24. Also, nothing in this Article 24 shall in any way limit Landlord’s
rights under Article 18 hereof.



     25. ELECTRICITY.



          (a) During the Term Tenant shall pay to Landlord as Additional Rental electric charges (the
“Electrical Inclusion Amount”) on account of Tenant’s consumption of electrical energy in the
Premises the sum of $14,546.00 per annum payable in equal monthly installments of $1,212.17. The
Electric Inclusion Amount is based upon Landlord’s assumption that Tenant’s initial electrical
installation will not result in a total connected electrical load for lighting, and equipment will
not be in excess of six watts per rentable square foot of the Premises and that Tenant will, except
for the purpose of office cleaning, use electrical energy only during normal weekday operating
hours of the Building. Accordingly, if Tenant’s initial electrical installation exceeds such
criteria, or if from time to time Tenant makes material use of electricity during hours other than
normal weekday operating hours of the Building, or if from time to time Tenant after completion of
its initial installation adds or changes any machinery, appliances or equipment which increases the
aggregate electrical load in the Premises, the Electric Inclusion Amount and the Additional Rent
shall from time to time be equitably adjusted to reflect the resulting increase in such use. In
addition, Landlord shall have the right to conduct a periodic survey of Tenant’s actual electrical
usage and increase the Electric Inclusion Amount if the survey indicates the Tenant’s usage of
electricity exceeds the cost of $1.75 per rentable square feet of the Premises. Landlord shall
furnish a statement of Landlord’s determination as to the amount of the adjustment, and the same
shall become binding upon the parties unless, within thirty (30) days, Tenant notifies Landlord
that it disputes the amount of such adjustment, in which event the parties shall in good faith make
reasonable attempts to come to agreement, and, if Landlord and Tenant cannot agree thereon, the
amount of such adjustment shall be determined, based on standard practices, by an independent
electrical consultant selected by Landlord. Tenant shall permit said consultant to have access to
the Premises and Tenant’s electrical facilities for

19









 








the foregoing purpose at all reasonable times. The fee of such consultant shall be paid by Tenant
unless such consultant finds that Tenant’s use does not justify an increase in Additional Rent, in
which case the fee shall be paid by Landlord. When the amount of such adjustment is so determined,
Landlord and Tenant shall execute a supplementary agreement to reflect such adjustment, which shall
be effective from the date of the increase of such usage as determined by such electrical
consultant and shall be made retroactively if necessary. Any adjustment shall be effective even if
such supplementary agreement (in form reasonably approved by Tenant) is not executed and delivered.
Pending the determination of the adjustment, Tenant shall pay to Landlord the amount of such
adjustment as specified in Landlord’s statement. Thereafter, if it is determined that Tenant has
overpaid, Tenant shall receive a credit against Additional Rent in the amount of the overpayment,
said credit to be applied against the next accruing installment(s) of Additional Rent.




          (b) Landlord reserves the right to discontinue furnishing electric energy to the Premises at
any time upon not less than ninety (90) days notice to Tenant in which event Tenant shall arrange
to obtain electric service directly from the utility providing electric service to the Building. If
Landlord exercises such right of termination, this Lease shall continue in full force and effect
and shall be unaffected thereby, except only that, from and after the effective date of such
discontinuance, Landlord shall not be obligated to furnish electric energy to Tenant, and the
Additional Rent payable under this Lease shall be reduced by the Electric Inclusion Amount then in
effect. If Landlord voluntarily discontinues furnishing electric energy to Tenant, Landlord shall,
prior to the effective date of such discontinuance, at Landlord’s expense, make such changes in
panel boards, feeders, risers, wiring and other conductors and equipment to the extent required to
permit Tenant to obtain electric energy directly from the public utility company. If, on the other
hand, Landlord is required by any legal requirements to discontinue furnishing electric energy to
Tenant, Landlord shall make such changes in panel boards, feeders, risers, wiring and other
conductors and equipment in order to permit Tenant to obtain electric energy directly from the
public utility company.




          (c) If any tax is imposed upon Landlord with respect to electrical energy furnished as a
service to Tenant by any government authority, Tenant agrees that, where permitted by law or
applicable regulations, Tenant’s pro rata share of such taxes shall be reimbursed by Tenant to
Landlord upon demand.




          (d) Landlord shall not in any way be liable or responsible to Tenant for any loss or damage or
expense which Tenant may sustain or incur if either the quantity or character of electric service
is changed or is no longer available or suitable for Tenant’s requirements. Tenant’s use of
electric current in the Premises shall not at any time exceed the capacity of any of the electrical
conductors and facilities in or otherwise serving the Premises. In order to insure that such
capacity is not exceeded and to avert any possible adverse effect upon the building’s electric
service, Tenant shall not, without Landlord’s prior written consent in each instance, connect any
fixtures, appliances or equipment (other than a reasonable number of table or floor lamps,
typewriters, word processors, small computers, photocopy machines and similar small office machines
using comparable electric current) to the Building’s electric distribution system nor make any
alteration or addition to the electric system of the Premises. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by Landlord upon
notice to Tenant, and all costs and expenses in connection therewith, including,

20









 






without limitation, those for filing and supervision, shall be paid by Tenant. As a condition
to granting such consent, Landlord may require Tenant to agree to an increase in the Additional
Rent by an amount which will reflect the value to Tenant of the additional service to be furnished
by Landlord, to wit: the potential additional electrical current to be made available to Tenant
based upon the estimated initial total capacity of such additional risers or other equipment. If
Landlord and Tenant cannot agree on the amount of such Additional Rent increase, the same shall be
determined by a reputable electrical consultant, to be selected by Landlord and paid by Tenant. The
parties shall then execute an agreement prepared by Landlord amending this Lease and setting forth
the new Additional Rent resulting from such increase and confirming the effective date thereof, but
such increase shall be effective from such date even if such agreement is not executed.




     26. LEASE STATUS AND NOTICE.



          (a) Upon twenty (20) days written request of Landlord from time to time, Tenant will execute
and deliver to Landlord an instrument prepared by Landlord and reasonably satisfactory to Tenant
and Tenant’s counsel stating, if the same be true, that this Lease is a true and exact copy of the
Lease between the parties hereto, that there are no amendments hereof (or stating what amendments
there may be), that the same is then in full force and effect and that, to the best of Tenant’s
knowledge, there are then no offsets, defenses or counterclaims with respect to the payment of rent
reserved hereunder or in the performance of the other terms, covenants and conditions hereof on the
part of the Tenant to be performed, and that as of such date no default has been declared hereunder
by either party hereto and that Tenant at the time has no knowledge of any facts of circumstances
which it might reasonably believe would give rise to a default by either party. In the event that
Tenant fails to deliver to Landlord the aforesaid certificate within the time period described
hereinabove, then Tenant herein unconditionally agrees that it shall be liable on demand to pay
Landlord the sum of $500.00 for each day that Tenant is late in delivering the aforesaid
certificate to Landlord, such sum to be as and for Landlord’s full and complete liquidated and
agreed monetary damages suffered by reason of Tenant’s failure to timely deliver an estoppel
certificate to Landlord. In addition to the foregoing, Landlord reserves the right to exercise any
further rights or remedies available to it under the Lease, at law or equity by reason of Tenant’s
default hereunder.




          (b) Except for bills and notices sent in connection with the commencement of any legal
proceeding, any bills, statements, consents, notices, demands, requests or other communications
given or required to be given under this Lease (collectively the “Notice”) shall be in writing and
shall be deemed sufficiently given or rendered if delivered by hand or overnight mail via a
nationally recognized courier (against a signed receipt), or if sent by U.S. registered or
certified mail (return receipt requested) addressed:





	 	(i)	 	if to Tenant, at the Premises, with a copies to
Replidyne, Inc., 1450 Infinite Drive, Louisville, Colorado 80027,
Attention: Jill Clark, and Holland & Hart, LLP, One Boulder Plaza, 1800
Broadway, Suite 300, Boulder, Colorado 80302, Attention: J. Marcus
Painter, Esq.




21









 






	 	(ii)	 	if to Landlord, at Landlord’s address set forth
at the beginning of this Lease, with a copy to Platte, Klarsfeld, Levine
& Lachtman, LLP, 10 East 40th Street, 46th Floor,
New York, New York 10016, Attention: David R. Lachtman, Esq.




or to such other address(es) as Landlord, Tenant or any mortgagee or lessor may designate as its
new address(es) for such purpose by notice given to the other in accordance with the provisions of
this Article 26(b). Any Notice shall be deemed to have been rendered or given on the date when it
shall have been delivered (if by hand or by overnight courier) or on the third (3rd) business day
following the date when it shall have been mailed as provided in this Article 26(b).




     27. SURRENDER OF PREMISES. At the expiration of the Term, Tenant will peacefully
yield up to Landlord the Premises, broom clean, in as good order and repair as when delivered to
Tenant, damage by fire, casualty and ordinary wear and tear excepted. Any property left by Tenant
in the Premises shall be deemed abandoned by Tenant. Tenant further agrees to remove all
Alterations, if applicable, to the Premises as required by Article 9 above and Tenant shall have
the right to remove improvements undertaken and paid for by Tenant, HVAC equipment purchased and
installed by Tenant and the raised floor for the computer room provided same can be accomplished
without damage to the Premises and Tenant restores the Premises as specified hereinabove.



     28. APPURTENANCES. Landlord reserves the right to make changes and alterations to the
Premises, fixtures and equipment thereof, in the street entrances, doors, halls, corridors,
lobbies, passages, elevators, escalators, stairways, toilets and other parts thereof which Landlord
may deem necessary or desirable. Neither this Lease nor any use by the Tenant of the Premises or
any passage, door, tunnel, concourse, plaza or any other area connecting the garages or other
demised premises with the Premises, shall give Tenant any right or easement of such use and the use
thereof may, without notice to Tenant, be regulated or discontinued at any time and from time to
time by Landlord without liability of any kind to Tenant and without affecting the obligations of
Tenant under this Lease.



     29. RULES AND REGULATIONS. Tenant covenants that Tenant, Tenant’s employees, agents
and licensees shall faithfully observe and strictly comply with the rules and regulations annexed
hereto and such reasonable changes therein (whether by modification, elimination or addition) as
Landlord may hereafter adopt, (at any time and from time to time) as being, in the judgment of the
Landlord necessary or desirable for (a) the reputation, safety, care or appearance of the Property
or the preservation of good order therein, or (b) the operation or maintenance of the Premises or
the equipment thereof, provided, however, that in the case of any conflict between the provisions
of this Lease and any such changes the provisions of this Lease shall control. Landlord shall
notify Tenant of the adoption of any changes and they shall be deemed to be reasonable within the
meaning of the foregoing sentence unless Tenant shall assert to the contrary by notifying Landlord
within ten (10) days after such notice to Tenant.



     30. PREJUDGMENT REMEDY, REDEMPTION, COUNTERCLAIM AND JURY TRIAL. Tenant, for itself
and for all persons claiming through or under it, hereby acknowledges that this Lease constitutes a
commercial transaction as such term is used and defined in Section 52-278e of the Connecticut
General Statutes, as amended, and hereby



22









 







expressly waives any and all rights which are or may be conferred upon Tenant by said Act to
any notice or hearing prior to a prejudgment remedy, and by any present or future law to redeem the
Premises, or to any new trial in any action or ejection under any provisions of law, after reentry
thereupon, or upon any part thereof, by Landlord, or after any warrant to dispossess or judgment in
ejection. If Landlord shall acquire possession of the Premises by summary proceedings, or in any
other lawful manner without judicial proceedings, it shall be deemed a reentry within the meaning
of that word as used in this Lease. In the event that Landlord commences any summary proceedings or
action for nonpayment of rent or other charges provided for in this Lease, Tenant shall not
interpose any non-compulsory counterclaim of any nature or description in any such proceeding or
action. Tenant and Landlord both waive a trial by jury of any or all issues arising in any action
or proceeding between the parties hereto or their successors, under or connected with this Lease,
or any of its provisions.



     31. MORTGAGEE PROTECTION. Tenant agrees to give any mortgagees a copy of any notice
of default served upon the Landlord, provided that prior to such notice Tenant has been notified,
in writing (by way of Notice of Assignment of Rents and Leases, or otherwise), of the address of
such mortgagees. Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease, then the mortgagees shall have an additional thirty
(30) days within which to cure such default or if such default cannot be cured within that time,
then such additional time as may be necessary if within such thirty (30) days, any mortgagee has
commenced and is diligently pursuing the remedies necessary to cure such default, (including but
not limited to commencement of foreclosure proceedings, if necessary to effect such cure) in which
event this Lease shall not be terminated while such remedies are being so diligently pursued.



     32. FINANCING. Tenant shall not unreasonably withhold its consent to any
modifications of the terms of this Lease that are requested by Landlord’s mortgagee, provided the
same do not affect the economic terms of this Lease or materially interfere with any of Tenant’s
rights or obligations under this Lease.



     33. SHORING. If any excavation or construction is made adjacent to, upon or within
the Premises, or any part thereof, Tenant shall afford to any and all persons causing or
authorized to cause such excavation or construction license to enter upon the Premises for the
purpose of doing such work as such persons shall deem necessary to preserve the Premises or any
portion thereof from injury or damage and to support the same by proper foundations, braces and
supports, without any claim for damages or indemnity or abatement of rent, or of a constructive
or actual eviction of Tenant.



     34. ENVIRONMENTAL REPRESENTATIONS.



          (a) Tenant shall, at Tenant’s expense, keep and maintain the Premises in compliance with all
local, state and Federal environmental laws, ordinances and regulations, including without
limitation Sections 22a-448 through 22a-457 of the Connecticut General Statutes, 42 U.S.C. Section
9601 et seq 42 U.S.C. Section 6901 et seq., 49 U.S.C. Section 1801 et seq.,
15 U.S.C. Section 2601 et seq., of the United States Code, and the regulations promulgated
thereunder, (all of the foregoing being referred to collectively as the




23









 







“Environmental Laws”). During the Term, Tenant shall permit no spills, discharges, or releases as
defined in the Environmental Laws, in or about the Premises, the Building or Corporate Campus 1, of
any hazardous, radioactive or polluting substances, including without limitation any oil or
petroleum products or any chemical liquids or solids (all of the foregoing, being referred to
collectively as “Hazardous Materials”), it being understood that materials and supplies used in
connection with the operation of Corporate Campus 1, provided same are used and stored in
commercially reasonable quantities in accordance with the Environmental Laws, shall not be deemed
for purposes of this Article 34 to be Hazardous Materials. Failure of Tenant to promptly commence
and diligently pursue remediation or clean up any such spill, discharge or release as required
under the Environmental Laws, at Tenant’s sole cost and expense, shall be a default hereunder.




          (b) Landlord represents and warrants that, to the best of its knowledge after due inquiry, the
Building and the Premises are free of Hazardous Materials as of the Commencement Date. Landlord
shall also be responsible for compliance with all Environmental Laws after the date of this Lease,
and shall indemnify and hold Tenant harmless against any and all claims with respect to any
violation of this Article or the Environmental Laws, unless any violation is caused by Tenant, its
agents, contractors or employees.




     35. SIGNAGE.



          (a) Tenant shall not affix, attach or install (i) on any exterior Building window of the
Premises any sign, display or other visible marking and (ii) on any interior Building window of the
Premises any sign, display or other visible marking without the prior written consent of Landlord.




          (b) Landlord shall, at Landlord’s expense, include Tenant’s name in the tenant directory in
the Building lobby, and will provide standard signage adjacent to the entrance of the Premises.




     36. SECURITY DEPOSIT.



          (a) Tenant shall deposit with Landlord the Security Deposit as security for the faithful
performance and observance by Tenant of the terms, conditions and provisions of this Lease,
including without limitation the surrender of possession of the Premises to Landlord herein
provided. It is agreed that in the event Tenant defaults in respect of any of the terms, provisions
and conditions of this Lease, including, but not limited to, the payment of Rent and/or Additional
Rent, Landlord may apply or retain the whole or any part of the Security Deposit so deposited to
the extent required for the payment of any Rent and additional rent or any other sum as to which
Tenant is in default or for any sum which Landlord may expend or may be required to expend by
reason of Tenant’s default in respect of any of the terms, covenants and conditions of this Lease,
including but not limited to, any damages or deficiency in the reletting of the Premises, whether
such damages or deficiency accrue or accrues before or after summary proceedings or other reentry
by Landlord. If Landlord applies or retains any part of the Security Deposit so deposited, Tenant,
within three (3) days’ after notice from Landlord, shall deposit with Landlord the amount so
applied or retained so that Landlord shall have the full Security

24









 








Deposit on hand at all times during the Term. The failure by Tenant to deposit such additional
amount within the foregoing time period shall be deemed a material default pursuant to this Lease.
If Tenant shall fully and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the Security Deposit shall be returned to Tenant after the Expiration
Date and after delivery of the entire possession of the Premises to Landlord. In the event of a
sale of the Property or the Building or leasing of the Building, Landlord shall have the right to
transfer the Security Deposit to the vendee or lessee and Landlord shall thereupon be released by
Tenant from all liability for the return of the Security Deposit; and Tenant agrees to look solely
to the new Landlord for the return of the Security Deposit; and it is agreed that the provisions
hereof shall apply to every transfer or assignment made of the Security Deposit to a new landlord.
Tenant further covenants that it will not assign or encumber or attempt to assign or encumber the
Security Deposit and that neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance. The Security Deposit shall
be placed in an interest-bearing account and all interest thereon (less the statutory
administrative fee which shall be retained by Landlord) shall be remitted to Tenant annually,
provided Tenant is not then in default in the performance of any of its monetary obligations under
this Lease.




          (b) After the end of the first (1st) year anniversary of the Commencement Date of
this Lease and each successive anniversary thereafter, provided that this Lease remains in full
force and effect, and the original Tenant named herein remains in possession of the Premises and is
not then in default under this Lease after the expiration of any applicable grace periods expressly
stated in this Lease, Landlord acknowledges that upon Tenant’s written request thereto, it shall
permit Tenant to reduce the sum of the Security Deposit by $16,208.40 each year during the Term.
This shall be implemented by Landlord reimbursing Tenant said sum in the form of either a cash
payment or credit against Base Rent, at Landlord’s sole option, within twenty (20) days following
Tenant’s request hereinabove.




     37. FINANCIAL STATEMENTS. During the term of this Lease, Landlord shall have the
right to request in writing, but no more than one (1) time per calendar year, copies of Tenant’s
current financial statements prepared by a certified public accountant in accordance with generally
accepted accounting principles. Landlord acknowledges that such financial statements are not
available until one hundred twenty (120) days following the close of the calendar year and for
purposes of this Article, the term “current financial statements” shall mean the most recent
financial statements Tenant has prepared in accordance with its customary business practice. In
the event Tenant fails to deliver its then current financial statements within twenty (20) days
after Landlord’s written request, same shall constitute a default under this Lease.



     38. MISCELLANEOUS.



          (a) Landlord and Landlord’s agent have made no representations or promises with respect to the
Premises, the Building or Corporate Campus I, including the uses permitted under applicable law,
except for representations herein expressly set forth.




25









 








          (b) Unless found to be grossly negligent, neither Landlord, nor any employee, agent of
contractor of Landlord, shall be liable to Tenant, its employees, agents or contractors, (i) for
any damage to or loss of any property of Tenant or such other person, irrespective of the cause of
such damage or loss; or (ii) for any personal injury to Tenant or such other person from any cause.




          (c) Except where Landlord is found to be negligent in connection therewith, Tenant shall
defend, indemnify and hold harmless Landlord, its employees, agents, mortgagees, and contractors
against and from all liabilities, including reasonable attorneys’ fees, which may be imposed upon
or incurred by or asserted against Landlord or such other persons by reason of any of the following
occurring during the Term or prior thereto when Tenant has been given access of the Premises; (i)
any work or thing done in the Premises by or at the instance of Tenant, its employees or agents;
(ii) any negligence or wrongful act or omission of Tenant, its employees or agents; (iii) any
accident, injury, loss or damage to any person or property occurring in the Premises; and (iv) any
failure on the part of Tenant to comply with the terms of this Lease.




          (d) Any provision of this Lease which requires Landlord not to unreasonably withhold its
consent shall never be the basis for an award of damages or give rise to a right of setoff or
termination to Tenant (unless Landlord is found to have acted in bad faith), but may be the basis
for a declaratory judgment or specific injunction with respect to the matter in question.




          (e) Except for the gross negligence and intentional acts of Landlord, Tenant shall look solely
to the estate and interest of Landlord, its successors and assigns, in Corporate Campus I for the
collection of a judgment in the event of a default by Landlord hereunder, and no other property or
assets of Landlord or any officer, director or partner of Landlord shall be subject to levy,
execution or other enforcement procedure for the satisfaction of ‘Tenant’s remedies.




          (f) The failure of Landlord to insist in any one or more instances upon the strict performance
of any one or more of the agreements, terms, covenants, conditions or obligations of this Lease, or
to exercise any right, remedy or election herein contained, shall not be construed as waiver or
relinquishment for the future of the performance of such one or more obligations to this Lease or
of the right to exercise such election, but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act or omission, whether of a similar nature of
otherwise.




          (g) Tenant’s obligations under this Lease shall survive the Expiration Date or sooner
termination of the Term, as same may be extended hereunder.




          (h) Corporate Campus I may be designated and known by any name(s) Landlord may choose, and
such name or designation may be changed from time to time in Landlord’s sole discretion:




          (i) Tenant shall comply with all applicable federal, state and local environmental laws, rules
and regulations and shall indemnify and hold Landlord, its

26









 






(mortgagees) and every party claiming under and through Landlord harmless from any liability
(including reasonable attorneys’ fees) incurred by Landlord or such other entity as a result of
Tenant’s violation of same.




          (j) Tenant and Tenant’s servants, employees, agents, visitors, invitees and licensees shall
observe faithfully and comply strictly with such reasonable Rules and Regulations as Landlord or
Landlord’s agents may, from time to time, adopt.




          (k) The covenants, conditions and agreements contained in this Lease shall bind and inure to
the benefit of Landlord and Tenant and their respective heirs, distributes executors,
administrators, successors and, except as otherwise provided in this Lease, their assigns. The word
“Landlord” as used in this Lease means only the owner for the time being of Landlord’s interest in
this Lease. In the event of any assignment of Landlord’s interest in this Lease, the assignor in
each case shall no longer be liable for the performance or observance of any agreements or
conditions on the part of the Landlord to be performed or observed.




          (l) Each covenant and agreement in this Lease shall be construed to be a separate and
independent covenant and agreement, and the breach of any such covenant or agreement by Landlord
shall not discharge or relieve Tenant from Tenant’s obligations to perform every covenant and
agreement of this Lease to be performed by Tenant. If any term or provision of this Lease or any
application thereof shall be invalid or unenforceable, the remainder of this Lease and any other
application of such term shall not be affected thereby.




          (m) This Lease shall be governed in all respects by the laws of the State of Connecticut.




          (n) This Lease may be executed in any number of counterparts, each of which shall be deemed an
original and all of which together shall be deemed to be one and the same instrument.




          (o) This Lease is offered for signature by Tenant and it is understood that this Lease shall
not be binding upon Landlord unless and until Landlord shall have executed and delivered a fully
executed copy of this Lease to Tenant.




     39. RENEWAL OPTION.



          (a) Provided Tenant is not in default hereunder beyond the giving of notice and expiration of
applicable grace periods expressly provided for in this Lease and this Lease shall be in full force
and effect, Tenant shall have the right to renew the term of the Lease for an additional five (5)
year term (the “Renewal Option”) provided that Tenant shall have given written notice (the “Renewal
Notice”) to Landlord in accordance with Article 26, which Renewal Notice shall have been received
by Landlord not less than nine (9) months prior to the Expiration Date. Time shall be of the
essence as to the giving of the Renewal Notice. If Tenant shall fail to exercise its Renewal
Option by delivering the Renewal Notice, in strict conformance with the terms of this Article, this
provision shall be deemed deleted from this Lease and of no further force and effect and Tenant
shall have no option to renew or extend the term of this Lease.




27









 








          (b) If Tenant shall exercise the Renewal Option in accordance with the provisions of this
Article, this Lease shall be renewed for such renewal term upon all the terms, covenants, and
conditions contained in the Lease, except that (i) the Base Rent shall be the fair annual market
rental value (the “Fair Market Value”) of the Premises on the last day of the Term of this Lease,
determined as provided in accordance with subparagraphs (c) and (d) of this Article, but in no
event less than the Base Rent in effect on the date preceding the first day of the first or second
renewal term, as the case may be, and (ii) the Expiration Date shall be deemed extended
accordingly. Tenant shall have no further right or option to renew this Lease or the term hereof.




          (c) If Tenant has fully complied with subparagraph (a) of this Article, Landlord shall furnish
Tenant with its initial determination of the Fair Market Value, within forty-five (45) days of
Landlord’s receipt of the Renewal Notice from Tenant.




          (d) If Tenant shall dispute the Fair Market Value proposed by Landlord, Tenant shall give
notice of such dispute within thirty (30) days after receipt of Landlord’s proposal, and any such
dispute, if not resolved between the parties within fifteen (15) days thereafter, shall be settled
by arbitration in accordance with the rules and regulations then obtaining of the American
Arbitration Association or its successor. The cost of such arbitration shall be borne equally by
Landlord and Tenant, and, until finally determined, the Base Rent subsequent to the expiration of
the term of this Lease, shall be equal to the greater of the Fair Market Value proposed by Landlord
or the Base Rent in effect on the last day of the initial term of this Lease. The determination
rendered in accordance with the provisions of this subparagraph (d) shall be final and binding in
fixing the Fair Market Value. If, as a result of such determination, there shall have been an
overpayment in the Base Rent, Landlord shall credit the amount thereof against subsequent payments
of Base Rent. If, as a result of such determination, there shall have been a deficiency, Tenant
shall pay the amount thereof to Landlord within ten (10) days after such determination.




     IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and seal the year and
day first above written.



     [The remainder of this page is left intentionally blank. Signature page to follow.]




28









 







IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and seal the year and day
first above written.




	 	 	 	 	 	 	 
	 	 	LANDLORD	 	 
	 
	 	 	 	 	 	 
	 	 	CROWN MILFORD LLC,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     Crown Milford Associates Limited Partnership,	 	 
	 

	 	 	 	     its Managing Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	     Crown Milford Realty Corp.,	 	 
	 

	 	 	 	     its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/Davar Rad/	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	     Name: Davar Rad	 	 
	 

	 	 	 	     Title: President	 	 
	 
	 	 	 	 	 	 
	 	 	TENANT	 	 
	 
	 	 	 	 	 	 
	 	 	REPLIDYNE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/Jill Clark/
 

     Name: Jill Clark
	 	 
	 

	 	 	 	     Title: Sr. Director, Finance and Administration	 	 







29










 







EXHIBIT “A”




 PREMISES FLOOR PLAN









30









 








EXHIBIT “B”




 SITE PLAN









31









 








EXHIBIT “C”




 LANDLORD’S CERTIFICATE




                    , 2005




Replidyne, Inc.

472 Wheelers Farm Road

Milford, Connecticut




	 	 	 	 	 
	 

	 	Re:
	 	Lease (“Lease”) dated                     , 2005 between Crown Milford LLC, as Landlord, and
Replidyne, Inc., as Tenant, for a portion of the third (3rd) floor in the building
known as 472 Wheelers Farm Road, Milford, Connecticut






Gentlemen:




     All capitalized terms used herein shall have the meanings set forth in the Lease. We are
writing to acknowledge and confirm that the Commencement Date (as such term is defined in
Article 3 of the Lease) under the Lease is                      , the Rent Commencement Date (as such term
is defined in Article 5 of the Lease) is                      and the Expiration Date (as such term is defined
in Article 3 of the Lease) is                      .



     Please sign where indicated on the bottom left-hand corner of this letter to indicate your
assent to the foregoing and deliver a fully-executed duplicate original of this letter to the
undersigned within five (5) days of the date hereof.



	 	 	 	 	 	 	 
	 	 	CROWN MILFORD LLC,	 	 
	 	 	By: Crown Milford Associates	 	 
	 	 	Limited Partnership, its Managing Member	 	 
	 
	 	 	 	 	 	 
	 	 	By: Crown Milford Realty Corp.,	 	 
	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	     Davar Rad, President	 	 






	 	 	 	 	 
	ACCEPTED AND AGREED TO:	 	 
	 
	 	 	 	 
	Replidyne, Inc.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 





32









 





EXHIBIT “D”




RENT SCHEDULE




	 	 	 	 	 	 	 
	Lease Year	 	Rate / r.s.f.	 	Annual Base Rent	 	Monthly Base Rent
	1 – 2*
	 	$19.50 / r.s.f.	 	$162,084.00	 	$13,507.00
	 
	 	 	 	 	 	 
	3
	 	$20.00 / r.s.f.	 	$166,240.00	 	$13,853.33
	 
	 	 	 	 	 	 
	4 – 5
	 	$20.50 / r.s.f.	 	$170,396.00	 	$14,199.67








 




			
	*	 	Landlord and Tenant agree that, notwithstanding the Rent Schedule, during the first
nine (9) months of the first Lease Year, Tenant shall be obligated to pay Monthly Base Rent to
Landlord in accordance with this Lease in the reduced amount of $10,500.75 per month.




33









 










EXHIBIT “E”




OPERATING EXPENSES




     Operating Expenses shall mean all costs and expenses paid or incurred by Landlord or on
Landlord’s behalf in respect of the repair, maintenance or operation of the Premises and of the
Common Areas and the curbs, sidewalks, plazas and other appurtenances adjoining the same,
including, without limitation, the costs and expenses which belong within any one or more of the
following categories:



     1. salaries, wages, medical, surgical, insurance (including group life and disability),
union and general welfare benefits and pension payments of employees engaged in the repair,
operation or maintenance of the Premises, the Building and the Property up to and including
the
level of Property manager;



     2. payroll taxes, workers’ compensation, uniforms and related expenses for
employees;



     3. the cost of painting and the cost of interior and exterior common area landscaping
maintenance;



     4. premiums and other charges for rent, casualty, boiler, sprinkler, plate-glass,
liability, fidelity and any other insurance Landlord maintains or is required to maintain by
any
mortgagee or ground lessor with regard to the Premises, the Building or the Property or the
maintenance or operation thereof;



     5. the cost of all supplies (including, without limitation, cleaning supplies), hand
tools and other materials used in the repair, maintenance or operation of the Premises, the
Building or the Property, and sales and other taxes thereon;



     6. the depreciation for, or the rental cost or value (including all applicable sales
taxes) of all movable equipment used in the repair, maintenance or operation of the Premises,
the Building or the Property;



     7. the cost or value of, or the cost or value of the rental of, together with the cost of
the installation of, any Building or Property security or other system used in connection with
life
or property protection (including the cost of, or the cost or value of the rental of, all
machinery,
electronic systems and other equipment comprising any part thereof) as well as the cost of the
operation and repair of any such system, to the extent same are capital expenses in accordance
with GAAP (defined below) being amortized, with interest at the prime or base rate, from time
to
time, of the Citibank, NA, New York, NY, or its corporate successor, on a straight line basis
over
such item’s useful fife (“Straight Line Useful Life”) as reasonably determined by Landlord,
provided that it any system referred to under this Section is not required by law; then the
costs
thereof shall not be included in Operating Expenses unless the system has been approved by
Tenant;



     8. the cost of all charges for window and other cleaning, janitorial and security
services;



34









 





     9. charges of independent contractors performing services, or supplying labor or
materials, for the Premises, the Building or the Property;



     10. whether or not capitalized under generally accepted accounting principles, the
cost of repairs and the cost of replacements made in connection with repairs of cables, fans,
pumps, boilers, cooling equipment, wiring and electrical fixtures and metering, control and
distribution equipment, component parts of the HVAC, electrical, plumbing, elevator and any
life or property protection systems (including, without limitation, sprinkler systems), window
washing equipment and snow removal equipment, provided, however, that to the extent such
costs are deemed capital expenses in accordance with generally accepted accounting principles
(“GAAP”) then the cost thereof shall be amortized with interest at the prime or base rate,
from
time to time, of the Citibank, NA, New York, NY or its corporate successor, over such item’s
Straight Line Useful Life, provided that Operating Expenses shall only include the Special
Proportionate Share (as defined below) of the costs of repairs and replacements to the Common
HVAC System (as defined below);



     11. whether or not capitalized under generally accepted accounting principles, costs
for alterations and improvements to the Premises, the Building or the Property made by reason
of the laws and requirements of any governmental authorities or the requirements of insurance
bodies or Landlord’s insurer (consistent with the requirements of insurance bodies), provided,
however, that to the extent such costs are deemed capital expenses under GAAP, such costs
shall be amortized, with interest at the prime or base rate, from time to time, of the
Citibank,
NA, New York, NY or its corporate successor, over such items Straight Line Useful Life;



     12. (a) management fees paid to a third party, or (b) if Landlord shall employ a
managing agent that is an affiliate of Landlord, only such portion of the management fees that
shall not be in excess other than market rate for management fees of first class office
Premises
in New Haven County, or (iii) if no managing agent is employed by Landlord, a sum in lieu
thereof which is not in excess of the then market rate for management fees of first class
office
property in New Haven County;



     13. whether or not capitalized under GAAP, the costs of improvements, equipment or
machinery installed for the purpose of reducing energy consumption or reducing other Operating
Expenses; provided, however, that to the extent such costs are deemed capital expenses under
GAAP, such costs shall be amortized, with interest at the prime or base rate, from time to
time,
of the Citibank, NA, New York, NY, or its corporate successor, over such items Straight Life
Useful Life;



     14. legal, accounting and other professional fees incurred in connection with the
operation, maintenance or management of the Premises, the Building or the Property;



     15. water, and sewer charges for which Landlord is not reimbursed by Tenant pursuant
to this Lease (other than pursuant to this Article);



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     16. the cost of all charges for gas, oil, steam, heat ventilation, water and other
utilities
(including without limitation costs of electricity to the extent not paid for by Tenant
pursuant to
Section 12(c) of the Lease), including air conditioning, furnished to the Premises, together
with
any taxes or other impositions imposed with regard to such utilities. Tenant acknowledges that
heat and air conditioning for the Premises are provided by a heating and cooling system that
serves the Premises and the Building, portions of which are within the Premises and portions
of
which are within the Building and 478 Wheelers Farm Road, Building A (the “Common HVAC
System”), and that the component of Operating Expenses attributable to heat and air
conditioning
shall consist of the total cost of heat and air conditioning for the Premises, the Building
and
Building A, minus the cost of overtime heat and air conditioning for the Premises, the
Building
and Building A, multiplied by 4.463% (the “Special Proportionate Share”), which represents the
number of square feet in the Premises (8,312) divided by the total number of square feet in
the
Building and Building A (96,788 + 89,466 = 186,254);



     17. the cost, as amortized by Landlord (in accordance with generally accepted
accounting principles), with interest at the prime or base rent, from time to time, of the
Chase
Manhattan Bank, New York, NY, or its corporate successor, of any capital expenses (excluding
the construction of additional space or floors in the Building) incurred by Landlord in the
prudent operation, maintenance and replacement of the Premises and the Property;



     18. the Special Proportionate Share of all costs otherwise includible in Operating
Expenses;



     19. all other charges property allocable to the repair, operation or maintenance of the
Premises, the Building and the Property in accordance with real estate accounting practices
customarily used in New Haven County.



     Operating Expenses shall exclude Taxes. Operating Expenses shall also exclude general
overhead costs of Landlord or its managing agent that are not incurred at the Building; payments
under service contracts to affiliated entities, to the extent they exceed customary payments for
unaffiliated entities; debt service payments (including principal payments and any other payments)
under any mortgage on the Property or any other Landlord debt; leasing commissions and other
expenses incurred in leasing or procuring tenants (including advertising expenses and legal and
accounting expenses incurred in connection therewith); salaries or fringe benefits of personnel
above the grade of Building manager, rent in any amounts based upon gross revenues, profits,
financing proceeds or sales proceeds payable under any ground leases or any other underlying
leases and any other amounts payable to the lessor thereunder, insurance or condemnation proceeds
of third parties; depreciation or other non-cash costs; costs incurred in connection with a
financing, refinancing or sale of the Building or the Property or any interest therein; legal fees
and disbursements incurred in connection with the enforcement of tenant leases by or against
Landlord; tax and insurance expenses, to the extent separately paid by or billed to Tenant; costs
and expenses incurred for the sole benefit of another tenant or tenants; costs of major
resurfacing (except for annual amounts thereof attributable to such period if such costs are
amortized over its estimated useful life on a straight line basis); costs of initial construction,
landscaping, and any and all other capital improvements, all as determined in accordance with
generally accepted accounting principles consistently applied; any costs to



36









 




correct original construction defects or for improving any tenant’s space; any costs exceeding
those obtainable through competitive bidding; any costs, fines and similar fees arising out of
Landlord’s violation, directly or indirectly, of any governmental rule or authority.




     Operating Expenses shall be net of rebates, credits and similar item of which Landlord
receives the benefit.



     There shall also be excluded from Operating Expenses costs incurred in connection with the
construction of the balance of the Park, including without limitation construction-related
maintenance costs for the Campus Road.



     In determining the amount of Operating Expenses for the Base Year and for any subsequent year
(i) if less than 100% of the Building shall have been occupied by tenants at any time during the
year, Operating Expenses shall be increased to an amount equal to the like Operating Expense which
would normally be expected to be incurred, had such occupancy been 100% during the entire period,
or (ii) if Landlord is not furnishing any particular work or service (the cost of which if
performed by Landlord would constitute an Operating Expense) to Tenant, because Tenant (by mutual
agreement of the parties) has undertaken to perform such work or service in lieu of the performance
thereof by Landlord, Operating Expenses shall be deemed for the purposes of this Section to be
increased by an amount equal to the additional Operating Expenses which would reasonably have been
incurred during such period by Landlord if it had at its own expense furnished such work or service
to such tenant. Similarly, Operating Expenses for the Campus Road and the sewage pump station and
related equipment shall be increased in the Base Year and subsequent expense years for estimated
100% occupancy of Corporate Campus 1, based upon rentable square feet of aggregate office space. In
effecting any such increase in Operating Expenses for 100% occupancy, Landlord shall adjust only
the variable expenses, not the fixed expense components of Operating Expenses, and shall utilize a
consistent formula or shall make equitable adjustments if Landlord changes the formula from time to
time.



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EXHIBIT “F”




 HVAC PERFORMANCE CRITERIA




     (A) Provide heating from October through April, ventilating and air conditioning
from May through September, combining perimeter hot water distribution and a variable air
volume distribution system.



     (B) The HVAC system for the Premises shall provide approximately the following
basic design conditions:




	 	1.	 	In Winter, 68 degrees F minimum interior temperature with the
control
range of 2 degrees when outside conditions are 0 degrees F.
	 
	 	2.	 	In summer, 78 degrees maximum F.D.B. with control range of #2
degrees
when outside conditions are 95 degrees F. dry bulb and 75 degrees F. wet
bulb.





     (C) The above criteria are based on a standard electrical load, including lighting, not to
exceed 4.5 watts per square foot for lighting and general receptacles in any one room or area,
and occupancy of one person per 150 square feet of usable area.



     (D) Concentrated loads beyond stated and/or 24 hour operation will require the
addition of secondary systems.



     (E) The aforesaid temperature performance criteria are an approximation and
Landlord shall have no liability to Tenant in the event Landlord is unable to meet the
aforesaid
specifications.



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EXHIBIT “G” 




CLEANING SPECIFICATIONS




PREMISES




Nightly





Empty all waste receptacles and place for disposal (changing liners as necessary)




Clean and sanitize drinking fountains




General dusting of all office furnishings




Vacuum traffic areas of carpeting, spot check offices




Wash entrance door glass and remove fingerprints from frames




Dust mop all tile floors and damp mop as necessary




General dusting of all lobhy furnishings (excluding plants)




Hand remove spills and marks from carpeting, to the extent possible




Clean counter and sinks in cafeteria and coffee areas




Damp wipe table tops and chairs in cafeteria/lunch areas




Check and clean conference rooms as needed



Weekly





Dust all ledges within reach of average person




Wash table tops and damp wipe chairs in cafeteria/lunch areas




Damp wipe and sanitize telephones




Dust all picture frames, charts and vertical surfaces of office furniture




Vacuum and edge all carpeted areas completely




Remove fingerprints from doors and frames



Monthly





Spray buff composition tile floors




Clean and polish tops of wood furniture




Brush upholstered furniture



Quarterly





Clean all air diffusers and vacuum adjacent
ceilings




High dust all file cabinets, shelves, etc.




Vacuum upholstered furniture




Machine buff all composition tile floors



Semi-Annually





Dust Venetian blinds




Strip and apply finish to composition tile floors




Wash windows inside and out




39









 








COMMON AREA CORRIDORS, LOBBIES. ELEVATORS




Nightly





Clean and sanitize drinking fountains




Vacuum all carpeted traffic lane areas




Wash entrance door glass and remove fingerprints from frames




Vacuum elevator carpeting and polish all brightwork and walls




Hand remove spills and marks from carpeting, to the extent possible




Police, pick up all litter and spot mop stairs in towers




Police areas adjacent to main and rear entrances, pick up litter, etc.




Damp wipe stair handrails in lobbies




Clean cigarette urns, replacing sand as necessary




General dusting of all lobby furnishings (excluding plants)



Weekly





Vacuum and edge all carpeted areas completely




Sweep
and spot mop stairs and dust hand rails in towers




Brush
upholstered furniture in main lobbies




Clean elevator tracks,
plates and grooves



Monthly





Vacuum upholstered furniture in main
lobbies




Wet mop stairs and damp wipe hand rails




Shampoo elevator carpets



LAVATORIES




Nightly





Empty all sanitary receptacles and trash containers and replace liners




Wash and sanitize all sinks, toilets, urinals and counters




Polish all mirrors, brightwork and enamel surfaces




Remove smudges and marks from partitions and walls




Sweep and mop clean floors with disinfectant cleaner




Refill toilet tissue, soap, towel and sanitary napkin dispensers (supplies to be provided by
Landlord)



Quarterly





Wash and polish all ceramic and enameled surfaces in
lavatories




Machine scrub lavatory floors



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EXHIBIT “H”




 RESERVED PARKING SPACES










41