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Exhibit 10.17
LEASE
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This Lease made between Xxxxxxx Omnibus VII Limited Partnership, a
Massachusetts limited partnership having an address c/o Berkeley Investments,
Inc., 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, hereinafter called the
Lessor ("Lessor") and First New England Dental Centers, Inc., a New Jersey
corporation with a principal place of business at 000 Xxxxxxxxxxxx Xxxxxx,
Xxxxxx, XX ("Lessee").
ARTICLE I - LEASED PREMISES. The Lessor leases to the Lessee the premises
(the "Premises") consisting of approximately 3,500 square feet of rentable space
having an address of 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 located
on the second (2nd) floor of the building (the "Building") situated at and
numbered 85 Devonshire and 262-268 Washington Streets in Boston, Massachusetts,
excluding as part of the Premises perimeter, demising and common walls (except
the interior faces thereof) and all spaces, runs, chases, etc. containing or
used for the installation of pipes, wires, conduits, ducts and Lessor's
fixtures.
ARTICLE II - TERM. The term of this lease shall be a period of five (5)
years from the Commencement Date; plus the Partial Month (as hereinafter
defined), if any; and the term shall terminate on the "Expiration Date", which
shall be the date which is sixty (60) months (plus the Partial Month, if any)
after the Commencement Date, unless sooner terminated as may be provided herein.
The first lease year shall consist of any partial calendar month following the
Commencement Date (the "Partial Month") and the next twelve (12) calendar
months. Each succeeding lease year shall commence upon the expiration of the
prior lease year and shall consist of twelve (12) calendar months.
The term "Commencement Date" as used herein shall mean the date that Lessor
delivers possession of the Premises to Lessee with the work to be performed by
Lessor pursuant to Addendum #3 substantially completed. Lessor shall deliver the
Premises to Lessee "as is". The Commencement Date is estimated to be April 1,
1996; provided however, if Lessor fails to deliver possession of the Premises at
the estimated date, the Lessor shall not be liable for any damages caused
thereby, nor shall this lease be void or voidable, but the Commencement Date
shall be delayed by the period of delay in the delivery of possession of the
Premises. If this lease is extended or renewed, all references to "term" herein
shall refer to the extension or renewal terms unless specifically designated
otherwise.
ARTICLE III.1 - MINIMUM RENT.
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(A) Rent is payable in twelve (12) equal monthly installments in advance on
the first day of each month during each lease year of the term at the office of
The Xxxxxxxx Company, 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (and also
for a Partial Month or at the early termination of this lease, a proportionate
part of rent for any part of a month then unexpired). All rent checks shall be
payable to XXXXXXX - 00 XXXXXXXXXX XXXXXX. If Lessor elects to accept rent after
the seventh (7th) day of the month, interest will accrue on such sum at the
annual rate of five percent over the prime rate of interest announced from time
to time by the First National Bank of Boston, until such time as it is paid.
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(B) The minimum rent for each year of the term (the "Minimum Rent") shall
be as follows:
LEASE YEAR PER YEAR PER MONTH
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Year One* $63,000.00 $5,250.00
Year Two $63,000.00 $5,250.00
Year Three $63,000.00 $5,250.00
Year Four $63,000.00 $5,250.00
Year Five $63,000.00 $5,250.00
* Minimum Rent is also due for any Partial Month in Lease Year One,
pro-rata based on the length of said Partial Month.
Minimum Rent for any Partial Month shall be equal to the product of the
number of calendar days remaining in said Partial Month (commencing on the
Commencement Date and ending on the last calendar day of said Partial Month)
multiplied by the Pro Rata Amount (as hereinafter defined).
As used herein, the "Pro Rata Amount" shall be equal to the product of the
Minimum Rent per month for Lease Year One divided by the number of calendar
days in said Partial Month.
The provisions of this Article III.1 notwithstanding, Lessee shall pay to
Lessor upon Lessee's possession the Premises, the sum of $31,500.00, which sum
represents the installments of Minimum Rent due under the lease for the first
six (6) months of Lease Year One of the Original Lease Term.
Article III.2 - ADJUSTED RENT.
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(1) For purposes of this Article, "Adjustment Date" means the first day of each
lease year after the first lease year of the original term; "CPI" means the
Consumer Price Index of the United States Bureau of Labor Statistics (Urban Wage
Earners and Clerical Workers, U.S. City Average, all items) (on the 1982-84
equals 100 Standard); "Base-Month CPI" means the CPI published in
February, 1996.
(2) Beginning on the first Adjustment Date and on each Adjustment Date
thereafter within the original and extension or renewal terms, in addition to
any increases in Minimum Rent specified in Article III. 1 (B), the Minimum Rent
for the forthcoming lease year, as recited in the schedule above, shall be
increased by fifty (50%) percent of the same percentage that the CPI published
for the February prior to the respective Adjustment Date in question has
increased from the Base-Month CPI. Provided, however, in no event shall the
Minimum Rent for any lease year be (i) less than the Minimum Rent (as it may
have been previously adjusted) for the preceding year, or (ii) increased by more
than $0.50 per rentable square foot over the Minimum Rent for the preceding year
as adjusted by the terms of this Article III.2.
(3) If the publication of the CPI is transferred to any other governmental
department or is discontinued, the Lessor and Lessee shall by agreement fix an
alternate index or method to compute such rent adjustment, but if they cannot
agree the matter shall be settled by arbitration in accordance with the rules of
the American Arbitration Association.
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ARTICLE IV - ADDITIONAL RENT DUE TO TAXES. For purposes of this Article
"fiscal year" means the twelve calendar (12) month period commencing on July l
ending on June 30; "fiscal base year" means the fiscal year ending June 30,
1996; "taxes" means all taxes and assessments levied by governmental authority
against the Building and its associated land and personalty or taxes in lieu
thereof, "Lessee's Share" means four and five tenths (4.5%) percent. If the
taxes for any fiscal year (or portion of any fiscal year) occurring within the
term after the fiscal base year exceed taxes for the fiscal base year (or exceed
a pro rata portion of fiscal base year taxes in the event of a portion of a
fiscal year being included within the term), then Lessee shall pay to Lessor the
Lessee's Share of the excess as Additional Rent. Lessor will notify Lessee after
receipt of tax bills of the amount of taxes and the Lessee's Share of excess
taxes for the current fiscal year; Lessee shall pay Lessee's Share of the excess
within 15 days of such notification. If Lessor later receives a reduction or
refund on taxes resulting from abatement of such taxes by final determination of
legal proceedings, settlement or otherwise, Lessee is entitled to Lessee's Share
of the reduction or refund up to the amount of Additional Rent paid for such
fiscal year less Lessee's Share of expenses incurred by Lessor in obtaining said
reduction or refund, which amount shall, in the sole discretion of Lessor, be
(i) applied in reduction of any Minimum Rent or Additional Rent due or owing by
Lessee to Lessor or (ii) paid to Lessee within sixty (60) days of receipt of
Lessor of said reduction or refund. If Lessor receives a refund or reduction in
taxes for the fiscal base year, then taxes for the fiscal base year shall be
measured by the abated amount. Lessee shall have no right to contest the amount
of any valuation of the Building or any assessment of taxes without the written
consent of Lessor, which may be withheld in Lessor's sole and absolute
discretion.
On the date this lease expires or is otherwise terminated, a proportionate
share of the additional rent on account of taxes for the fiscal year during
which such expiration or termination occurs shall immediately become due and
payable by Lessee to Lessor. Such proportionate share shall be equal to the
product of (i) Lessee's Share of the estimated amount of any excess taxes for
said fiscal year (the estimated amount being based upon the most recent
applicable data reasonably available to Lessor) divided by twelve (12);
multiplied by (ii) the number of calendar months in the period commencing on
July 1 of the fiscal year in which the lease expires or otherwise terminates
and ending on the date of expiration or termination. Lessee shall be liable
to Lessor for any amount by which Lessee's Share of the estimated amount of any
excess taxes for said fiscal year are less than Lessee's Share of actual taxes
for said fiscal year, and shall pay the same to Lessor within fifteen (15) days
of notice from Lessor of said amount of additional excess taxes. Lessor shall
be liable to Lessee for any amount by which Lessee's Share of the estimate
amount of any excess taxes for said fiscal year are more than Lessee's Share of
actual taxes for said fiscal year, and shall, in the sole discretion of Lessor,
either (i) apply said additional amount in reduction of any Minimum Rent or
Additional Rent due or owing by Lessee to Lessor or (ii) pay said additional
amount to Lessee within sixty (60) days of Lessor's receipt of notice of the
amount of actual tax liability for said fiscal year. Adjustments shall be made
if the terms of this lease begins and/or ends on other than the first or last
day of a fiscal year. In the event of Lessee's default, Lessee's obligation to
pay any and all additional rent under this lease shall continue and shall cover
all periods up to the Expiration Date.
ARTICLE V - DEPOSIT. Upon the execution of this Lease by Lessee, the Lessee
shall deposit with the Lessor the amount of Ten Thousand Five Hundred
($10,500.00) Dollars. This deposit shall be held by Lessor as security for
payment of all rent and other sums of money payable for the term and for the
faithful performance by Lessee of all other covenants and agreements; provided,
however, that the Lessee shall have no right to require Lessor to indemnify
itself from this deposit for any particular violation or default of Lessee, the
use of this deposit to indemnify Lessor being within Lessor's sole discretion
and Lessor hereby reserves the right to proceed against the Lessee directly for
any amounts owed by Lessee for any violation or default of Lessee pursuant to
the
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terms of this Lease. If all or any part of the deposit is applied to an
obligation of Lessee hereunder, Lessee shall immediately upon request by Lessor
restore said deposit to its original amount. No interest shall be payable to
Lessee on account of this deposit and Lessor may commingle the funds from this
deposit with other of its funds. Upon any conveyance by Lessor of its interest
under this lease, the deposit may be delivered by Lessor to Lessor's grantee or
transferee (or accounted for by means of an adjustment between seller and
buyer). Upon any such delivery or accounting, Lessee hereby releases Lessor of
any and all liability with respect to the deposit, its application and return,
and Lessee agrees to look solely to such grantee or transferee.
This deposit, or any part thereof, not previously applied by Lessor, shall
be returned to Lessee only after the Expiration Date or the date on which any
renewal term expires, and only after Lessee has fully vacated the Premises,
notwithstanding that this lease has been terminated by Lessor, it being the'
intention of the parties that this deposit shall secure Lessor not only as to
default by Lessee before such termination, but also to secure Lessor from any
deficiency of rent or other charges payable to Lessor by Lessee.
ARTICLE VI - USE. The Premises shall be used and occupied by Lessee solely
for the purpose of administrative offices for a consortium of dental practices
and such other lawful use incidental and related thereto, but for no other
purpose. Provided however, Lessee shall not conduct at the Premises any
hazardous or dangerous activities or any activities posing uncommon, unusual or
out of the ordinary level of risk to property or to persons. Moreover, Lessee
shall not utilize at or bring on to the Premises any hazardous, dangerous or
volatile substances. Lessee shall not use the Premises in such a way as to
interfere with the use of or by, or to constitute a nuisance to Lessor or to
any other tenant or licensee of the Building or to passersby or do or fail to
do other acts which, in Lessor's judgement, may unreasonably affect the
reputation or appearance of the Building, or which, in Lessor's judgement, may
tend to degrade the economic status of the Building or interfere with its most
effective operation.
LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE PREMISES ARE FIT FOR
A PARTICULAR USE OR PURPOSE, INCLUDING WITHOUT LIMITATION THE USE AS SPECIFIED
HEREIN, EXCEPT AS OTHERWISE REQUIRED BY LAW.
ARTICLE VII - INSTALLATION OF EQUIPMENT AND FLOOR CAPACITY. Lessee shall
not place any load upon any floor of the Premises which exceeds the floor load
capacity (calculated on a square foot basis) or which is prohibited by
governmental law, regulation or code. Lessee will not move any safe, heavy
machinery, heavy equipment, freight, bulky matter or fixtures into or out of the
Building without Lessor's prior written consent. The moving and installation of
such machines and equipment shall be at the sole risk and hazard of the Lessee.
ARTICLE VIII - CONDITION OF PREMISES, REMODELING. Lessee accepts the
Premises in its "as is" condition. The Lessee shall not make alterations or
additions, structural or otherwise, to the Premises, without the prior written
consent of Lessor. All such allowed alterations shall be at Lessee's expense and
shall be in quality at least equal to the present construction. Lessee shall not
permit any mechanic's liens, or similar liens, to remain upon the leased
Premises for labor and material furnished to Lessee or claimed to have been
furnished to Lessee in connection with work of any character performed of
claimed to have been performed at the direction of Lessee and shall cause any
such lien to be released of record forthwith without cost to Lessor. Any
alterations or improvements made by the Lessee shall become the property of the
Lessor at the termination of occupancy as provided herein.
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All work, construction activity, modifications, changes, remodeling to the
Premises or the Building by the Lessee pursuant to any rights specifically
granted to it in this Lease or otherwise by Lessor (the "Work") shall be
performed subject to and in compliance with the following conditions:
a. Except as is specifically approved in writing by Lessor, the Work shall not
change, alter, remove or interfere with the structural components of the
Building, and shall not, except to an immaterial degree, restrict access to the
utility systems of the Building.
b. The Work, except to an insignificant degree, shall not interfere with other
tenants or their business operation and shall not affect or limit the storage
and other use of the basement, if any, or other areas of the Building by those
entitled thereto.
c. The Work shall be performed in a workmanlike manner with all governmental
permits in place, pursuant to stamped and professionally prepared plans which
have been approved in writing and in advance by Lessor, said approval not to be
unreasonably withheld.
d. All Work shall be performed by licensed adequately insured contractor who,
prior to the commencement of Work, have deposited a certificate of insurance
with Lessor naming Lessor as an additional insured under said certificates and
evidencing xxxxxxx'x compensation and comprehensive general liability insurance
in the amount of at least $1,000,000. -
e. All damage to the Building (including other tenant spaces) or to the
Premises as a result of said Work shall be the responsibility of the
Lessee, and Lessee hereby indemnifies and holds Lessor harmless for any costs,
causes of: actions or damages resulting from said Work, including costs of
repair.
f. Prior to the commencement of the Work, Lessee shall deliver to Lessor in a
form reasonably satisfactory to Lessor the general contractor's license and
copies of all building permits and applications for permits.
ARTICLE IX - LESSOR'S COVENANTS. Lessor shall be responsible for
maintaining the structure, foundation, exterior and roof of the Building in the
same condition as at the Commencement Date or as it may be put during the term
of this lease, reasonable wear and tear and damage by fire and other casualty
only excepted. Additionally, Lessor shall be responsible for the maintenance,
repair and replacement of the electrical, plumbing, heating, air conditioning,
ventilation and other mechanical installations located entirely on or serving
only the Premises and for maintaining the Building systems which serve more than
one unit and all the common areas in good order and repair, except that Lessor
shall have no responsibility with respect to any obligation hereinabove stated
if caused by the negligence or misuse of Lessee or its employees or agents.
Except as specifically stated herein, Lessor is not responsible for any repairs
or replacements to or maintenance of the Premises or of the equipment, fixtures
or mechanical installations solely serving the same. Lessor is responsible for
maintenance and replacement of only such equipment, fixtures or mechanical
installations servicing the Premises or Building which serve more than one unit
or the common areas of the Building.
Lessor shall furnish to the Premises such cleaning service as is customary
in similar office buildings in Boston, subject to interruption due to any cause
beyond the Lessor's control.
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The Lessor agrees to provide and to furnish reasonably cold water to the
Premises and reasonable heat (except to the extent that the same are furnished
through separately metered utilities or separate fuel tanks) to the Premises
during normal business hours on regular business days of the heating season of
each Lease Year, those being Monday through Friday 8:00 A.M. - 6:00 P.M. and
Saturdays 9:00 A.M. - 5:00 P.M. excluding holidays. Lessor is under no
responsibility or liability for failure or interruption in such service caused
by breakage, accident, strikes, repairs, failure of fuel supply, inability by
exercise of reasonable diligence to obtain fuel, electricity, supplies or other
services or for any other cause or causes beyond the reasonable control of
Lessor, nor in any event for any indirect or consequential damages; and failure
or omission on the part of Lessor for the foregoing reasons to furnish such
service shall not be construed as an eviction of Lessee, nor work an abatement
of rent, nor render Lessor liable in damages, nor release Lessee from prompt
fulfillment of any of the covenants
ARTICLE X - LESSEE'S COVENANTS.
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ARTICLE X.I - UTILITIES. Lessee shall provide and pay for the cost and its
use of all utilities and fuel serving the Premises and separately metered,
including those used to provide heat and air conditioning, as they become due
and payable.
Article X.2 - LESSEE'S INSURANCE.
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1. PERSONAL PROPERTY. All risks (including that of casualty, theft, and any
other harm, damage or loss) to Lessee's personal property and to the personal
property of others held by Lessee, and the loss of use of the same, shall be
borne solely by Lessee. Lessee hereby releases Lessor and its managing agent
(and indemnifies and holds them harmless) from and against any claims or
liability for any casualty, theft, harm, damages or other loss to Lessee's
personal property and to the personal property of others held by Lessee. As
used herein, personal property includes, but is not limited to, all tangible
and intangible goods and accounts, inventory, merchandise, fixtures, equipment
and systems. Lessee shall purchase and maintain insurance in an amount adequate
to repair or replace or otherwise cover its personal property (and the personal
property of others held or leased by it or otherwise on the Premises) and the
tenant improvements and interior finish and build-out to the Premises.
Lessee is responsible for the replacement of any broken plate glass that is
pan of the Building covered by this lease.
2. COMPREHENSIVE COMMERCIAL LIABILITY INSURANCE. Lessee agrees to maintain
throughout the term of the lease, Comprehensive Commercial Liability Insurance
written on an occurrence basis. Such insurance shall include coverage for
products/completed operations, personal injury, broad form property damage,
extended bodily injury and broad form contractual liability. As of the
Commencement Date, the minimum limit of liability carried on such insurance
shall be $1,000,000 combined single limit for each occurrence with any aggregate
limit applying only to each of the following: products/completed operations,
personal injury and contractual liability. However, if the policy contains a
general policy aggregate or an aggregate which applies to coverages other than
the aforementioned coverages, the Lessee shall purchase minimum limits of
$1,000,000 per occurrence/$2,000,000 aggregate per location.
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3. WORKERS COMPENSATION Lessee agrees to maintain workers' compensation
insurance (including employer's liability insurance) at statutory limits.
4. UMBRELLA LIABILITY In addition to the foregoing insurance, Lessee agrees
to maintain umbrella liability coverage with minimum limits, as of the
Commencement Date, of $1,000,000.00 per occurrence. Umbrella coverage is to
apply in excess of the casualty, comprehensive commercial liability and
employers liability coverages mentioned in sections 1, 2 and 3 above.
All policy limits, as of the Commencement Date, shall be at least equal to
those stated above, and from time to time during the term shall be for such
higher limits, if any, as are customarily carried in Boston with respect to
similar properties.
All insurance policies required in paragraphs 1, 2 and 4 above shall
designate the Lessor and The Xxxxxxxx Company, as additional insureds. Lessee
agrees that the insurance coverages required under sections number 1 through
number 4 above shall be written by a company or companies authorized to do
business in the Commonwealth of Massachusetts with an A.M. Best's rating of
"A-", VIII or better. The liability coverage of the policies specified above in
Paragraphs 2 and 4 shall cover all business activities conducted by Lessee at
the Premises.
Lessee agrees to furnish the Lessor with Certificates of Insurance prior to
the beginning of the term of the lease. Renewal Certificates of Insurance shall
be delivered to the Lessor at least fifteen (15) days in advance of each renewal
date. Such certificates shall state that in the event of cancellation or
material change written notification shall be given to the Lessor at least
thirty (30) days in advance of such cancellation or material change.
ARTICLE X.3 - SIGNS. Lessee shall not erect any signs or lettering visible
from the exterior of the Premises or attach any awnings or canopies to the
exterior of the Premises without obtaining Lessor's prior written consent.
ARTICLE X.4 - MAINTENANCE, REPAIR, YIELD-UP. Unless otherwise specifically
provided herein, Lessee shall keep and maintain the Premises and shall be
responsible for the maintenance, repair and replacement of all utility
installations exclusively serving the Premises. Lessor shall be responsible for
the maintenance, repair and replacement of all electrical, plumbing, heating,
air conditioning, ventilation and other mechanical installations exclusively
serving the Premises unless such work is required because of the negligence or
misuse of Lessee or its employees or agents in which event only the maintenance,
repair or replacement of such installations shall be performed by Lessee. Lessee
shall also keep all windows and doors of the Premises in good order and repair,
and shall maintain at its own expense so called plate glass insurance coverage
at all times. At the end of the Term or sooner termination, Lessee shall
peaceably surrender the Premises and all erections, alterations and additions
thereon made to or upon the same, to Lessor, broom clean and in the same repair
and condition as the Premises were in on the Commencement Date and as such
erections, alterations, and additions were when completed, reasonable wear and
tear, fire and other casualty only excepted; and will remove all personal
property, goods and effects, including, without limitation, all of its trade
fixtures, awnings, canopies and signs, and all lettering, if any, painted on any
doors with or without Lessor's consent. Lessee shall be responsible for all
damage or injury to the Premises and the Building caused by Lessee's
installation or removal of furniture, fixtures or equipment. Except as
Lessor, in its sole discretion, may otherwise specifically advise, Lessee shall
remove any erections, additions,
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alterations or fixtures Lessee has installed and restore the Premises to the
condition they were in on the Commencement Date.
ARTICLE X.5, - ASSIGNMENT - SUBLEASING. Lessee shall not assign, sublet,
underlet, mortgage, pledge or encumber (collectively referred to as "Transfer")
this lease without Lessor's prior written consent; which consent may be withheld
in Landlord's sole discretion. Any Transfer made without such consent shall be
void. Moreover, as additional rent, Lessee shall reimburse Lessor promptly for
reasonable legal and other expenses incurred by Lessor in connection with any
request by Lessee for consent to a Transfer. The preceding notwithstanding,
solely in the event Lessee desires to Transfer the Premises to a proposed
transferee which (i) has a good reputation and has previous business experience,
(ii) shall have a net worth sufficient in the discretion of the Lessor to
satisfy all of the obligations of the lessee under this lease, and (iii) shall
continue to use the Premises as stated in Article VI of the lease and in
character with the Building, Lessor agrees that it may either (1) grant its
consent to such Transfer of this lease to such proposed transferee, or (2)
terminate this lease and relieve Lessee of all its future obligations
hereunder. In the event of such termination, Lessee shall be relieved of all
future obligations hereunder as of the date of termination. In the event the
lease is terminated, as hereinafter provided, Lessor shall be free to enter
into a new lease with the proposed new tenant or anyone else on whatever
terms and conditions it chooses.
In the event that Lessor gives its consent pursuant to the foregoing
paragraph, Lessee shall remain primarily liable upon all the terms, conditions
and covenants hereof will deliver to Lessor an instrument executed by the
Transferee binding the same to the terms and provisions of this lease and will
pay to Lessor the amount by which the sum of rent, additional rent due to taxes
and all other money or consideration it receives from a Transferee exceeds the
sum of all monetary obligations which Lessee owes to Lessor for the period of
such Transfer.
Consent by Lessor, whether express or implied, to any Transfer shall not
constitute a waiver of Lessor's right to prohibit any subsequent Transfer; nor
shall such consent be deemed a waiver of Lessor's right to terminate this lease
upon any subsequent Transfer. Moreover, Lessor's acceptance of any name for
listing on any Building directory will not be deemed, nor will it substitute for
Lessor's consent, as required herein, to any sublease, assignment or other
occupancy of the Premises.
As used herein, the term "assign" or "assignment" shall be deemed to
include, without limitation: (a) any transfer of the Lessee's interest in the
lease by operation of law, the merger or consolidation of the Lessee with or
into any other firm or corporation; or (b) the transfer or sale of a controlling
interest in the Lessee or any parent of Lessee whether by sale of its capital
stock or otherwise.
ARTICLE X.6 - LISTINGS. The listing of any name other than that of Lessee
or a trade name of Lessee, whether on the doors of the Premises or in the
Building Directory, or otherwise, shall not vest any right in this lease to such
named person or be deemed to be the consent of Lessor, it being expressly
understood that any such listing is a privilege extended by Lessor revocable at
will by written notice to Lessee.
ARTICLE X.7 - COMPLIANCE WITH LAW AND INSURANCE POLICIES. Lessee, at its
sole expense, shall comply with all laws, orders and regulations of Federal,
State, County and City Authorities relating to the Premises or its operations
therein, Lessee acknowledging that Lessor has made no warranties or
representations about (i) the permissibility of Lessee's proposed use under
applicable zoning, environmental, licensing or other Federal, State, County and
City laws, or (ii) concerning compliance of the Premises or the Building with
any federal, state or
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municipal law, rule, regulation or ordinance, including, without limitation,
compliance of the same with applicable provisions of the Americans with
Disabilities Act, so-called. Lessee shall not do or permit to be done anything
upon the Premises, which will invalidate, or be in conflict with, fire insurance
policies covering the Building and fixtures and property therein and shall not
do, or permit to be done, anything upon the Premises which might subject Lessor
to any liability or responsibility for injury to any person or to property; and
Lessee, at its sole expense, shall comply with all rules, orders, regulations or
requirements of the Board of Fire Underwriters, or any other similar body, and
shall not do or permit anything to be done or kept on the Premises, except as
permitted by the Fire Department, Board of Fire Underwriters, Fire Insurance
Rating Organization, or other authority having jurisdiction. Except for those
items necessary for the cleaning and maintenance of Lessee's business, which
shall be properly stored to minimize the risk of fire and explosion, there shall
not be brought or kept in or on the Premises any inflammable, combustible or
explosive fluid, material, chemical or substance, nor shall any unusual or other
objectionable odors permeate or emanate from the Premises. If the insurance
premiums for the building increase because of anything Lessee does or permits to
be done on the Premises, Lessee shall pay the full amount of such increase. That
the Premises are being used for the purpose set forth in Article VI hereof shall
not relieve Lessee from the foregoing duties.
ARTICLE X.8 - LESSEE'S RISK. Except as modifed by statute, all merchandise,
furniture, fixtures; inventory and property which may be on or about the
Premises and the loss of the use of same shall be at the sole risk and hazard of
Lessee, and if the whole or any part of the Premises is destroyed or damaged by
fire, water or by the leaking or bursting of water pipes, or in any other
manner, no part of such loss or damage or loss of use will be charged to Lessor.
ARTICLE X.9 - INDEMNIFICATION. The Lessee will save Lessor harmless, defend
and will exonerate and indemnify Lessor, from and against any and all claims,
liabilities or penalties:
(i) on account of or based upon any injury to person, or loss of or damage
to property sustained or occurring or emanating from the Premises on
account of or based upon the act, omission, fault, negligence or misconduct
of any person except Lessor, its employees, agents or independent
contractors.
(ii) on account of or based upon any injury to person, or loss of or damage
to property, sustained on or occurring elsewhere in or about the Building
arising out of the use or occupancy of the Building or Premises by the
Lessee or by any person claiming by, through or under Lessee, except where
caused by the negligence, fault or misconduct of Lessor, its employees,
agents or independent contractors.
and in addition to and not in limitation of either of the foregoing subdivisions
(i) and (ii);
(iii) on account of or based upon any work or thing whatsoever done on the
Premises; except where caused by the negligence, fault or misconduct of
Lessor, its employees, agents or independent contractors.
and, in respect of any of the foregoing from and against all costs, expenses
(including reasonable attorneys' fees) and liabilities incurred in or in
connection with any such claim, or any action or proceedings; and in case any
action or proceeding is brought against Lessor by reason of any such claim,
Lessee upon notice from Lessor shall at Lessee's expense resist or defend such
action or proceeding and employ counsel reasonably satisfactory to Lessor.
Notwithstanding anything herein to the contrary, for purposes of this Article
X.9, the term "Lessor" shall include the Lessor's managing agent.
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ARTICLE X.10 - LESSOR'S ACCESS TO PREMISES. Lessor shall have the right
without charge to it and without reduction in rent, at reasonable times and upon
reasonable prior notice (except in the event of an emergency) and in such manner
as not unreasonably to interfere with Lessee's business, to enter to view the
Premises for any business purpose. In case of an emergency on the Premises or in
the Building, Lessor or its representative may enter the Premises (forcibly, if
necessary) at any time to take such measures as may be needed to cope with such
emergency. Without limiting the generality of the foregoing, during the six (6)
months next preceding the Expiration Date, Lessor may show the Premises to
persons wishing to lease or purchase same and may affix to any suitable part of
the Premises a notice for letting or selling the Premises or property of which
the Premises are a part and keep the same so affixed without hindrance. In
addition to the foregoing, the holder of any Mortgage shall have access to the
Premises during normal business hours for the purposes of conducting appraisals,
environmental assessments, structural and other types of inspections of the
Premises that the Mortgagee deems advisable.
ARTICLE X. 11 - MATERIALMEN'S, MECHANIC'S LIEN. Lessee shall not do or
suffer anything to be done whereby the land and Building may be encumbered by
any materialman's or mechanic's lien and shall, whenever and as often as any
such lien is filed purporting to be for labor or material furnished to the
Lessee, discharge the same of record or bond the same within thirty (30) days
alter the date of filing.
ARTICLE X. 12 - WASTE. Lessee shall not overload, damage or deface the
Premises nor suffer or permit same to be done, nor commit waste, nor without
Lessor's prior written consent, permit any hole to be made in the stone or
brickwork of the Building, nor use any equipment (except for window electric air
conditioning if otherwise permitted) that requires outdoor venting.
ARTICLE X.13 - LESSOR'S RULES AND REGULATIONS. Lessee shall abide by any
reasonable rules and regulations as the Lessor may make from time to time,
applicable to all lessees of the Building and uniformly enforced. The Lessor,
however, may change said rules or waive any or all of said rules in the case of
any one or more Lessees. Nor shall the Lessor be responsible to the Lessee, or
to the Lessee's agents, employees, servants, licensees, invitees, or visitors,
for failure to enforce any of the rules and regulations or for the
non-observance or violation of any of said rules and regulations by any other
lessee or by any other person, or for the non-observance or violation of or
failure to enforce or to perform the provisions of any other lease of any part
of the Building. Notwithstanding the foregoing, however, Lessor shall use its
reasonable efforts to apply the rules and regulations to all Lessees with
reasonable uniformity in conformity with their tenancies.
ARTICLE X.14 - CLEANING, SNOW REMOVAL. Lessor is responsible for the
keeping the Building's entrances serving the Premises clear of snow and ice.
EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE IX HEREOF. Lessee shall not be
entitled to any maintenance services from Lessor, and agrees to furnish
maintenance services at its own expense with respect to the Premises. Lessor
shall provide cleaning service to the Premises as specifically stated in Article
IX of this lease. Lessee shall keep the Premises infestation free. The preceding
notwithstanding, Lessee shall be responsible for the prompt clean-up and removal
from any common area of the Building or the grounds of any trash, debris or
litter (including accumulation of cigarette butts) deposited by its employees,
agents or contractors, customers or invitees.
ARTICLE X. 15 - LESSEE'S ESTOPPEL CERTIFICATE. Lessee agrees from time to
time, upon not less than fifteen (15) days prior written request by Landlord, to
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect and that Lessee has
no defenses,
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offsets or counterclaims against its obligations to pay the fixed rent and
additional rent and to perform its other covenants under this Lease and that
there are no uncured defaults of Landlord or Lessee under this Lease (or, if
there have been any modifications that the same is in full force and effect as
modified and stating the modifications and, if there are any defenses, offsets,
counterclaims, or defaults, setting them forth in reasonable detail), and the
dates to which the fixed rent, additional rent and other charges have been paid,
and such other matters as a mortgagee or purchaser of the Premises may request.
Any such statement delivered pursuant to this Section 8.8 may be relied upon by
any current or prospective purchaser or mortgagee or any current or prospective
assignee of any such mortgagee
ARTICLE X.16 - TENANT RELOCATION. Lessee acknowledges that from time to
time Lessor may desire to relocate Lessee to other portions of the Building in
order to incorporate all or a portion of the Premises in portions of the
Building to be leased to tenants other than Lessee. Lessee further acknowledges
that restriction of the right of Lessor to effect such a relocation would cause
substantial damage to Lessor in the leasing of the Building. Accordingly, Lessee
specifically acknowledges that Lessor shall have the right to substitute for the
Premises other space of approximately the same size in the Building provided
that Lessor, at Lessor's sole cost and expense, shall make improvements to the
substitute premises comparable to the improvements made to the Premises as of
the Commencement Date of the Lease and shall pay all moving costs and further
provided that the Minimum Rent and additional rent payable shall be the same as
are payable in respect of the Premises. In the event Lessor desires Lessee to
make such relocation, Lessor shall give written notice thereof to Lessee at
least thirty (30) days prior to the date on which such relocation takes effect.
Lessee agrees that upon notice from the Lessor that the substitute premises have
been substantially completed, Lessee shall relocate to the substitute premises
furnished by Lessor and yield up and deliver occupancy of the Premises to Lessor
within fifteen (15) days thereof and shall, if requested by Lessor, enter into a
suitable confirmatory amendment of this Lease to reflect Lessee's occupancy of
the substitute premises.
Article X.17 - Building Rehabilitation and Repair
-------------------------------------------------
During the term, Lessor may, at its sole discretion, choose to undertake
rehabilitation, renovation, and/or repair of the Premises and Building,
including, without limitation, remodeling the storefronts, installation of new
windows, HVAC systems, stairwells, bathrooms, sprinkler systems, detection
systems, etc.(collectively or singly referred to as "Rehabilitation"). Such
Rehabilitation, which may be minor or major in nature, shall be undertaken
solely at the Lessor's option and expense, and does not in any way constitute
part of the Lessee's consideration under this lease and does not in any way
obligate Lessor to perform the same.
Moreover, Lessor reserves the right from time to time, without unreasonable
interference with Lessee's use: (a) to install, use, maintain, repair, replace
and relocate for service to the Premises and/or other parts of the Building,
pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the
Premises or Building, and (b) to alter or relocate any other common facility,
provided that substitutions are substantially equivalent or better.
Installations, replacements and relocations referred to in clause (a) above
shall be located, so far as practicable, in the central core area of the
Building, above ceiling surfaces, below floor surfaces or within perimeter walls
of the Premises. The work detailed in this paragraph shall be deemed to be
Rehabilitation for purposes of this Addendum
Lessee recognizes and agrees that during the time that any Rehabilitation
is made to the Premises, and during the time that Rehabilitation work is being
done to the Building including the Premises, the Lessee may
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experience interruptions (including interruptions to services) due to such
construction and rehabilitation work and workmen entering the Premises in
connection with such work, and agrees to cooperate fully with the Lessor's
efforts to make such repairs and rehabilitation and further agrees that Lessee
shall have no liability for said interruptions.
Lessee agrees to provide Lessor, his employees and independent contractors
with access to the Premises at all reasonable times during Lessee's regular
business hours or otherwise in order to enable Lessor to complete the
aforementioned improvements to the Premises and rehabilitation work to the
Building. Lessor agrees that it will use its reasonable efforts to have its
employees and independent contractors work so as not substantially to interfere
with Lessee's business. Lessor shall not be responsible for any damages, whether
direct, indirect or consequential, to the Lessee, his business or the Premises
arising out of the aforementioned improvements or rehabilitations.
Article XI Mortgagee Rights
---------------------------
11.1 LEASE SUBORDINATE-SUPERIOR. This Lease shall be subject and
subordinate to any mortgage ("Mortgage") now or hereinafter placed on the
Building or its grounds, or both, or any portion or portions thereof or
interest therein, which are separately and together hereinafter in this
Article XI referred to as "the mortgaged premises", and to each advance made or
hereafter to be made under any Mortgage, and to all renewals, modifications,
consolidations, replacements and extensions thereof and all substitutions
therefor, provided, however, that conditioned upon Lessee not being in default
under any of the terms of this Lease, subsequent to the Commencement Date,
Lessor shall use reasonable efforts to obtain from any such mortgagee on
Lessee's behalf an agreement on the part of such mortgagee to recognize this
Lease and all of Lessee's rights hereunder as though this Lease were prior to
any such mortgage, such agreement to be in form and substance substantially
similar to the Subordination, Non-Disturbance and Attornment Agreement attached
hereto as Exhibit 1 and incorporated herein by reference (the "Non-Disturbance
Agreement"), subject to the execution and delivery by Lessee, at the time of
execution of this lease, of the Non-Disturbance Agreement (and Lessee
acknowledges that the execution of such Non-Disturbance Agreement by Lessor's
mortgagee, shall be at the sole discretion of such mortgagee), provided
further, however, that the mortgagee, or any purchaser at a foreclosure sale or
otherwise shall not be:
(a) liable for any act or omission of a prior Lessor (including the
mortgagor); or
(b) subject to any offset or defenses which the Lessee might have against
any prior Lessor (including the mortgagor); or
(c) bound by any rent or additional rent which the Lessee might have paid
in advance to any prior Lessor (including the mortgagor) for any period
beyond the month in which foreclosure ,or sale occurs; or
(d) bound by any security deposit which Lessee may have paid to any prior
Lessor (including the mortgagor), unless such deposit is in an escrow fund
available to the mortgagee; or
(e) bound by any agreement or modification of the Lease made without the
consent of the
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mortgagee; or
(f) bound by any notice of termination given by any prior Lessor (including
the mortgagor) without the mortgagee's written consent thereto; or
(g) personally liable under this Lease and the mortgagee's liability under
the Lease shall be limited to the ownership interest of the mortgagee in
the Premises; or
(h) liable for any fact or circumstance or condition to the extent existing
or arising prior to the mortgagee's (or such purchaser's) succession to the
interest of the Lessor under the Lease and such mortgagee or such purchaser
further shall not be liable except during that period of time, if any, in
which such mortgagee or purchaser and Lessee are in privity of estate.
In the event that any mortgagee or its successor in title shall succeed to
the interest of Lessor, then, Lessee shall and does hereby agree to attorn to
such mortgagee or successor and to recognize such mortgagee or successor as its
Lessor. Any claim by Lessee under the Lease against the mortgagee or such
successor shall be satisfied solely out of the mortgagee's or such successor's
interest in the Premises and Lessee shall not seek recovery against or out of
any other assets of mortgagee or such successor.
Notwithstanding the foregoing, any mortgagee may at its election
subordinate its Mortgage to this Lease without the consent or approval of
Lessee.
This Section 11.1 shall be self-operative. Lessee agrees to execute and
deliver promptly any appropriate certificates or instruments requested by Lessor
or any mortgagee to carry out the subordination and attornment agreements
contained in this Section 11.1.
11.2 MODIFICATION, TERMINATION OR CANCELLATION. No assignment of the Lease
and no agreement to make or accept any surrender, termination or cancellation of
this Lease and no agreement to modify so as to reduce the rent, change the Term,
or otherwise materially change the rights of Lessor under this Lease, or to
relieve Lessee of any obligations or liability under this Lease, shall be valid
unless consented to by Lessor's mortgagees of record, if any. No fixed rent,
additional rent, or any other charge shall be paid more than ten (10) days prior
to the due date thereof and payments made in violation of this provision shall
(except to the extent that such payments are actually received by a mortgagee)
be a nullity as against any mortgagee and Lessee shall be liable for the amount
of such payments to such mortgagee.
11.3 RIGHTS OF HOLDER OF MORTGAGE. No act or failure to act on the part of
Lessor which would entitle Lessee under the terms of this Lease, or by law, to
be relieved of Lessee's obligations hereunder or to terminate this Lease, shall
result in a release or termination of such obligations or a termination of this
Lease unless (i) Lessee shall have first given written notice of Lessor's act or
failure to act to Lessor's mortgagees of record, if any, specifying the act or
failure to act on the part of Lessor which could or would give basis to Lessee's
rights; and (ii) such mortgagees, after receipt of such notice, have failed or
refused to correct or cure the condition complained of within a reasonable time
thereafter, but nothing contained in this Section 11.3 shall be deemed to impose
any obligation on any such mortgagees to correct or cure any condition.
"Reasonable time" as used
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above means and includes a reasonable time to obtain possession of the mortgaged
premises if the mortgagee elects to do so and a reasonable time to correct or
cure the condition if such condition is determined to exist.
11.4 ASSIGNMENT OF RENTS. With reference to any assignment by Lessor of
Lessor's interest in this Lease, or the rents payable hereunder, conditional in
nature or otherwise, which assignment is made to the holder of a mortgage on
property which includes the Premises, Lessee agrees:
(a) that the execution thereof by Lessor, and the acceptance thereof by the
holder of such mortgage, shall never be treated as an assumption by such holder
of any of the obligations of Lessor hereunder, unless such holder shall, by
notice sent to Lessee, specifically otherwise elect; and
(b) that, except as aforesaid, such holder shall be treated as having
assumed Lessor's obligations hereunder only upon foreclosure of such holder's
mortgage (or the acceptance of a deed in lieu of foreclosure) and the taking of
possession of the Premises.
11.5 IMPLEMENTATION OF ARTICLE XI. Lessee agrees on request of Lessor to
execute and deliver from time to time any agreement which may reasonably be
deemed necessary to implement the provisions of this Article XI.
ARTICLE XII - TRADE FIXTURES AND EQUIPMENT. Any trade fixtures or equipment
installed in or attached to the Premises and all other property of Lessee which
was personal property prior to its installation shall remain the property of
Lessee, and Lessee shall, except as otherwise provided herein or by agreement of
the parties have the right, to remove its trade fixtures, equipment and property
which it may have installed in or attached to the Premises, during the term, or
within five days thereafter or within a reasonable time after any accelerated
termination thereof; Lessee must promptly repair in a workmanlike manner any
damage resulting from such removal, must plug or close in an approved manner any
connection to sources of gas, air, water, electricity or heat or to cooling
ducts and will do whatever is necessary to leave the Premises undefaced.
ARTICLE XIII - EMINENT DOMAIN AND DEMOLITION. If the Premises or any part
thereof or the whole or any part of the Building are taken for any street or
other public use, by action of the City or other authorities, or if the Lessor
or the Lessee are entitled to or receive any direct or consequential damages by
reason of anything lawfully done in pursuance of any public authority, or if
Lessor voluntarily elects to demolish the Building or any part of the Building,
except as a consequence of fire or other casualty damage, then this lease and
the term shall terminate at the election of the Lessor. Lessor may elect so to
terminate this lease even if the entire interest of the Lessor is divested by
such a taking. If, as a result of a taking or damage to or destruction of the
Premises, the Premises or any part thereof are rendered unfit for use and
occupation, the rent shall be abated proportionately according to the nature and
extent of the injury sustained by the Premises until the Premises or, in the
case of a taking, what may remain thereof, shall have been put in proper
condition.
Except for the Lessor's election voluntarily to demolish the Premises or
Building, any election to terminate shall be made by Lessor not later than
thirty (30) days after Lessor receives notice of such taking or action or the
occurrence of such damage. The Lessor reserves and excepts from this lease all
rights to damages resulting from the taking for public use of the Premises or
any portion thereof, or right appurtenant thereto, or privilege or easement in,
through, or over the same, and by way of confirmation of the foregoing the
Lessee hereby grants all rights to such damages previously accrued or
accruing during the term to the Lessor, to have and to hold for the
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Lessor forever. Solely, in the case of Lessor's election voluntarily to demolish
the Premises or Building as stated above in this Article, Lessor must give
Lessee at least one (1) year prior termination notice, after which this lease
shall terminate and be of no further recourse to either party except as to
rights and obligations incurred prior to the termination date.
No award for any partial or entire taking of the Premises shall be
apportioned. Lessor shall receive (subject to the rights of mortgagees of
Lessor) and Lessee hereby assigns to Lessor any award which may be made and any
other proceeds in connection with such taking, together with all rights of
Lessee to such award or proceeds, including, without limitation, any award or
compensation for the value of all or any part of the leasehold estate of Lessee;
provided that nothing contained in this Section shall be deemed to give Lessor
any interest in or to require Lessee to assign to Lessor any separate award made
to Lessee for (i) the taking of Lessee's personal property, or (ii) interruption
of or damage to Lessee's business, or (iii) Lessee's moving and relocation
costs.
Article XIV - Fire and Other Damage Subrogation.
------------------------------------------------
A. Fire and Other Damage - If the Building or any part thereof is partially
damaged by fire or other casualty such that the Premises and the Building are
not rendered substantially untenantable and Lessee is able to remain open for
business, the damage thereto (except for damage to the Premise's interior finish
and build-out and to Lessee's fixtures, property and equipment, for which Lessee
shall be responsible) shall be restored by and at the expense of Lessor, and
until such restoration shall be made, if the Premises are rendered substantially
unfit for its use and purpose, the rent and other charges shall be subject to an
abatement to the extent fair and equitable, except if such casualty was a result
of the willful fault or negligence of Lessee, in which event there shall be no
abatement of rent. Such restoration shall be made promptly by Lessor subject to
delay which may arise by reason of adjustment of insurance, and for reasonable
delay on account of "labor troubles" or any other cause beyond Lessor's control
(excluding financial inability). Lessor shall not be liable for any
inconvenience or annoyance to Lessee or for injury to the business of Lessee
resulting from such excused delays.
If the Building or the Premises is substantially damaged so as to be
substantially untenantable by fire or other casualty, the rent and other charges
shall be subject to an abatement to the extent fair and equitable as of the date
of the fire or casualty, and continuing until Lessor completes its restoration
obligations hereunder or until the term expires hereunder, except if such
casualty was a result of the willful fault or negligence of Lessee, in which
event there shall be no abatement of rent, and the Lessor shall promptly restore
the same (excluding Lessee's interior finish and build-out and Lessee's
fixtures, property, and equipment), unless Lessor decides not to restore, in
which event the Lessor may, within sixty (60) days, after such fire or other
cause, give Lessee a notice in writing of such decision and thereupon the term
shall expire upon the thirtieth (30th) days after such notice is given, and the
Lessee shall vacate the Premises and surrender the same to the Lessor. If the
Building (excluding Lessee Improvements and Lessee's fixtures, property and
equipment) is not in fact restored by Lessor within six (6) months after the
fire or other casualty, the Lessee may terminate this Lease by written notice to
Lessor within thirty (30) days after the end of the said six (6) month period.
The provisions of this Article XIV shall govern in the case of damage or
destruction of the Building or any part thereof and restoration thereof due to a
fire or casualty notwithstanding any inconsistent provisions of this Lease.
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Notwithstanding anything to the contrary contained in this Article XIV, the
provisions hereof shall be subject and subordinate to the rights of institutions
holding mortgages on the Building including the rights contained in any of
Lessor's mortgage financing documents affecting the Building.
B. Waiver of Subrogation - Lessor and Lessee hereby release each other from
any and all liability or responsibility to the other or anyone claiming through
or under them by way of subrogation or otherwise for any loss or damage to
property caused by fire or any of the extended coverage or supplementary
contract casualties, even if such fire or other casualty shall have been caused
by the fault or negligence of the other party, or anyone for whom such party may
be responsible, and irrespective of whether the releasor carries property
insurance. Lessor and Lessee each agree that it will require its insurance
carriers to include in its policies, whether or not such policies are required
hereunder, a clause or endorsement to the effect that any such release shall not
adversely affect said policies or prejudice the right of releasor to recover
thereunder. If extra cost shall be charged, each party will bear the amount of
its extra cost.
ARTICLE XV - DEFAULT AND BANKRUPTCY. The following shall constitute a
default by Lessee under this Lease:
(a) The Lessee shall fail to make any payment or any installment of rent or
other sum herein specified and such failure shall continue for seven (7) days
after written notice thereof; or
(b) The Lessee shall fail to observe or perform any other of the Lessee's
covenants, agreements or obligations hereunder and such default shall not be
corrected within thirty (30) days after written notice thereof or, if such
default shall reasonably require longer than thirty (30) days to cure, shall not
within said period commence and diligently proceed to cure such default within
sixty (60) days or sooner if practicable; or
(c) Lessee becomes insolvent or fails to pay its debts as they fall due; or
if Lessee makes any trust mortgage or assignment for the benefit of creditors;
or if Lessee proposes any composition, arrangement, reorganization or
recapitalization with creditors; or if Lessee's leasehold hereunder or any
substantial part of the property of Lessee is taken on execution or other
process of law or is attached or subjected to any other involuntary
encumbrance; or if a receiver, trustee, custodian, guardian, liquidator or
similar agent is appointed with respect to Lessee, or if any such person or a
mortgagee, secured party or other creditor takes possession of the Premises or
of any substantial part of the property of Lessee, and, in any case, if such
appointment or taking of possession is not terminated within thirty (30) days
after it first occurs; or if a petition is filed by or with the consent of
Lessee under any federal or state law concerning bankruptcy, insolvency,
reorganization, arrangement, or relief from creditors; or if a petition is
filed against Lessee under any federal or state law concerning bankruptcy,
insolvency, reorganization, arrangement, or relief from creditors, and such
petition is not dismissed within thirty (30) days thereafter, or if Lessee
dissolves or is dissolved or liquidated or adopts any plan or commences any
proceeding, the result of which is intended to include dissolution or
liquidation.
In the event of a default, whether or not the Term shall have begun, Lessor
may immediately, or at any time while such default exists and without further
notice, terminate this Lease by notice to Lessee and this Lease shall come to
an end on the date specified in such notice as fully and completely as if such
date were the date herein originally fixed for the expiration of the Term, and
Lessee will then quit and surrender the Premises to Lessor, but Lessee shall
remain liable as hereinafter provided.
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The preceding notwithstanding, any notice required to be given by Lessor
for any failure of Lessee to pay rent or other sums (prior to said failure being
deemed an actionable default) shall be deemed satisfied by the serving by Lessor
on Lessee at the Premises of a "notice to quit" so long as the same provides
Lessee with the right to cure within at least seven (7) days of service.
ARTICLE XVI - LESSOR'S DEFAULT. Lessor shall not be deemed to be in default
unless such default remains uncured for more than thirty (30) days following
written notice from Lessee specifying the nature of such default, or such
longer period as may be reasonably required to correct such default. Lessee
hereby agrees that any judgement, decree or award obtained against the Lessor
which is related to this lease, the Premises or the Lessee's use or occupancy
of the Premises or the building, whether at law or in equity, shall be
satisfied out of the Lessor's equity in the land and building, and further
agrees to look only to such assets and to no other assets of the Lessor for
satisfaction. Lessor's liability for maintenance and repair shall always be
limited to the cost of making such repair or accomplishing such maintenance or
repair. In no event shall Lessor be liable for consequential or any indirect
damages. The provisions of this Section are subject to the provisions of
Articles XIII and XIV dealing with eminent domain and fire and other casualty.
ARTICLE XVII - LESSOR'S REMEDIES. If this lease is terminated as provided
in Article XV, Lessee shall forthwith pay to Lessor all sums which were due
prior to the date of such termination and Lessee shall pay on the days
originally fixed herein for the payment thereof amounts equal to the several
installments of rent, adjusted rent, additional rent and any and all other
charges as they would have become due if this lease had not been terminated.
As a second alternative, at the election of Lessor, Lessee will, at the
time of such termination, pay to Lessor, as liquidated damages, the amount of
the excess, if any, of the present value at the time of termination of the total
rent and other benefits which would have accrued to Lessor under this lease over
and above the fair market rental value (in advance) of the Premises for the
balance of the term. For the purpose of this paragraph, the total rent shall be
computed by assuming that Lessee's Share of real estate taxes and other charges
would be the amount thereof (if any) for the immediately preceding year of the
term.
As a third alternative, upon any such termination, at Lessor's election,
Lessor shall have the right to declare all installments of rent, additional rent
and other charges payable hereunder for the next one (1) full year to be
immediately due and payable as liquidated damages and not as a penalty.
In addition to the foregoing (and whether or not the Lease is terminated
upon a default), Lessee agrees (i) to indemnify and save Lessor harmless from
and against all expenses together with interest at the rate of 1.5% per month
which Lessor may incur in collecting such amount or in obtaining possession of,
or in re-letting the Premises, or in defending any action arising as a result of
or in connection with a default, including, without limitation, legal expenses,
attorneys' fees, brokerage fees, and the cost of putting the Premises in good
order or preparing the same for rental; (ii) that Lessor may re-let the Premises
or any part or parts thereof, either in the name of Lessor or otherwise for a
term or terms which may, at Lessor's option, be less than or exceed the period
which would otherwise have constituted the balance of the term and may grant
concessions or free rent for a reasonable time. The failure of Lessor to re-let
the Premises or any part thereof shall not release or affect Lessee's liability
for damage. Any suit brought to collect the amount of deficiency for any month
shall not prejudice the right of Lessor to collect the deficiency for any
subsequent month by a similar proceeding. Lessor may make such alterations,
repairs, replacements and decorations on the Premises which in Lessor's sole
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judgement are advisable or necessary for the purpose of re-letting the Premises,
and the making of such alterations or decorations shall not release Lessee from
any liability. In the event the Premises are re-let by Lessor, Lessee shall be
entitled to a credit in the net amount of rent received by Lessor, after
deduction of all expenses incurred in connection with Lessee's default,
re-letting the Premises and in collecting the rent, except in the event Lessor
has chosen the second or third alternative as a remedy in which event Lessee
shall not be entitled to any credit.
Lessee further agrees that, if on the Expiration Date or other termination
date, Lessee does not surrender the Premises or fails to remove any of its
property from the Premises and Lessor obtains an order of eviction then Lessor
may enter the Premises for the purpose of removing Lessee's goods and effects,
without prejudice to any other remedies, and Lessor may remove and store such
goods and effects at Lessee's expense, Lessee hereby granting Lessor an
irrevocable power of attorney to accomplish same.
ARTICLE XVIII - LESSOR'S RIGHT TO PERFORM LESSEE'S COVENANTS. Lessee agrees
that, if it fails to make any payment or perform any other act as required in
this lease, Lessor, in its sole discretion, may make any payment or perform any
other act on the part of the Lessee in such manner and to such extent as Lessor
may reasonably deem desirable including paying necessary and incidental costs
and reasonable attorneys' fees. The making of any such payment or the performing
of any other act by the Lessor shall not waive, or release the Lessee from its
obligations. All amounts so paid by Lessor shall be payable to Lessor on demand,
with interest thereon at a rate of one and one-half percent (1-1/2%) per month,
and Lessee covenants to pay such amount promptly. In addition, Lessor shall
have all the rights and remedies provided for in Article XVII or elsewhere in
this lease.
ARTICLE XIX - BROKER. Lessor and Lessee each warrant and represent that it
has not negotiated with any broker (other than Xxxxx Xxxxx of Xxxxx Xxxxxx
Company) in connection with this lease and each party agrees to indemnify and
hold the other party harmless if such warranty or representation is untrue.
ARTICLE XX - QUIET ENJOYMENT. Upon Lessee's observing and performing all of
the terms, covenants and conditions in this lease, Lessee shall peaceably and
quietly have and hold, the Premises, without hindrance or molestation by any
person or persons lawfully claiming by, through or under Lessor, subject to the
terms of this lease.
ARTICLE XXI - NOTICES. Any notice from the Lessor to the Lessee relating to
the Premises or to the occupancy thereof, shall be in writing (except as
otherwise may be permitted in this lease) and shall be deemed duly served if
delivered to the Premises by a recognized delivery service or constable
utilizing a return receipt or return of service addressed to the Lessee; or if
mailed to the Premises, or to such other address as the Lessee may from time to
time advise in writing, by registered or certified mail, return receipt
requested, postage prepaid, addressed to the Lessee. Prior to the Commencement
Date, all notices to Lessee shall be delivered or sent to Lessee at its address
stated in the first paragraph of this lease. Any notice from the Lessee to the
Lessor relating to the Premises or to the occupancy thereof, shall be in writing
and shall be deemed duly served, if delivered to Lessor by a recognized delivery
service utilizing a return receipt or mailed to the Lessor by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
Lessor at such address as the Lessor may from
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time to time advise in writing. All notices to Lessor, unless otherwise directed
in writing by Lessor, shall be delivered or sent to the Lessor at:
x/x Xxxxxxxx Xxxxxxxxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxxxxx.
With a copy to:
Xxxxxx Xxxxx, President and CEO
The Xxxxxxxx Company
00 Xxxxxxxx Xxx
ARTICLE XXII - ENTIRE AGREEMENT. This lease sets forth the entire agreement
between the parties and cannot be modified or amended except in writing duly
executed by the respective parties.
ARTICLE XXIII - PARTIAL INVALIDITY. The invalidity of one or more phrases,
sentences, clauses or articles shall not affect the remaining portions of this
lease, and if any part of this lease should be declared invalid by the final
order, decree or judgment of a court of competent jurisdiction, this lease shall
be construed as if such invalid phrases, sentences, clauses or articles had not
been inserted.
ARTICLE XXIV - HOLDOVER. If the Lessee remains on the Premises beyond the
expiration or earlier termination of this lease, such holding over shall not be
deemed to create any tenancy at will, but the Lessee shall be a Lessee at
sufferance only, at a daily rate equal to three (3) times the rent and other
charges for the last year under this lease and also for all additional rent
otherwise due and payable and all damages sustained by Landlord on account of
such holding over. The provisions of this Section shall not operate as a waiver
of any right of reentry provided in this Lease. However, all other conditions of
this lease to be performed by Lessee shall continue in force.
ARTICLE XXV - NON-WAIVER PROVISION. No assent or waiver, express or
implied, by the Lessor to the breach of any provision of this lease, and no
waiver, express or implied, of any such agreement or condition shall be deemed
to be a waiver of or assent to any succeeding breach. The acceptance by the
Lessor of rent or other payment or silence by the Lessor as to any breach shall
not be construed as waiving any of the Lessor's rights. No payment by the
Lessee or acceptance by the Lessor of a lesser amount than is due the Lessor
from the Lessee shall be deemed to be anything but payment on account, and the
acceptance by the Lessor of a check for a lesser amount with an endorsement or
statement thereon or upon a letter accompanying said check that said lesser
amount is payment in full shall not be deemed an accord and satisfaction, and
the Lessor may accept said check without prejudice to recover the balance due
or pursue any other remedy.
ARTICLE XXVI - PERSONS AND PROPERTY BOUND. The word "Lessor" shall
comprehend and bind the Lessor, and its heirs, legal representatives, successors
and assigns and the word "Lessee" shall comprehend and bind the Lessee, its
heirs, legal representatives, successors and assigns, or those in any manner
claiming through or under
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said Lessee. Lessee hereby agrees for himself and each succeeding holder of the
Lessee's interest, or any portion thereof, that any judgement, decree or award
obtained against the Lessor or any succeeding owner of the Lessor's interest,
which is related to this lease, the Premises or the Lessee's use or occupancy of
the Premises or the Building, whether at law or in equity, shall be satisfied
out of the Lessor's equity in the land and Building, and further agrees to look
only to such assets and to no other assets of the Lessor for satisfaction.
ARTICLE XXVII - COUNTERPARTS AND HEADNOTES. This lease is executed in
duplicate, both copies of which are identical, and either one of which is to be
deemed to be complete in itself and may be introduced in evidence or used for
any purpose without the production of the other copy. The headnotes throughout
this lease and the coversheet are for convenience or reference only, and shall
in no way be held or deemed to define, limit, explain, describe, modify or add
to the interpretation, construction or meaning of any provision of this lease.
ARTICLE XXVIII - NO OFFER TO LEASE. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises. This document shall become
effective and binding only upon the execution and delivery hereof by Lessor and
by Lessee, and until such execution and delivery, Lessor shall not in any way
be bound to enter into a lease with Lessee for the Premises.
ARTICLE XXIX - NO RECORDING. This lease shall not be recorded.
ARTICLE XXX - ADDENDA. The Addenda attached hereto numbered 1 through 4 are
attached and incorporated herein by reference.
ARTICLE XXXI - TRUSTEE AS LESSOR. If the Lessor is a trust or a trustee or
trustees, it is agreed that no trustee nor any beneficiary under any agreement
or declaration of trust under which said trust exists or by virtue of which such
trustees act, shall be personally liable under any of the covenants or
agreements of the parties expressed herein or implied hereunder, or otherwise
because of anything arising from or connected with the use and occupation of the
demised Premises by the Lessee, and the parties agree that any and all claims
arising or accruing to them hereunder shall be enforced and satisfied only
against the assets and property of said trust and not in any case against said
trustees or any of them or their successors in trust individually.
ARTICLE XXXII - AUTHORITY. If Lessee is a corporation, each person
executing this Lease on behalf of the Lessee hereby covenants, represents and
warrants that Lessee is a duly incorporated or duly qualified (if foreign)
corporation and is authorized to do business in the Commonwealth of
Massachusetts (a copy of evidence thereof to be supplied to Lessor upon
request); and that each person executing this Lease on behalf of Lessee is an
officer of Lessee and that he or she is duly authorized to execute, acknowledge
and deliver this Lease to Lessor (a copy of a resolution to that effect to be
supplied to Lessor upon request).
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EXECUTED AS A SEALED INSTRUMENT THIS______________ DAY OF ________________,199_.
LESSOR: XXXXXXX OMNIBUS VII LIMITED PARTNERSHIP
BY: XXXXXXX VII CORPORATION, ITS GENERAL PARTNER
BY:
------------------------------------------
ADDRESS: 00 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000
LESSEE: FIRST NEW ENGLAND DENTAL CENTERS, INC.
BY: /s/ Xxxxxx Xxxxxxx
------------------------------------------
ADDRESS: 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxx, XX
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ADDENDUM #1: RULES AND REGULATIONS
----------------------------------
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Lessee or used for any purpose other than for ingress to and egress from
the Premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Lessor. There shall not be used in any space, or in the public hall of the
building, either by a Lessee or by jobbers or others in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If the Premises are situated on the ground floor of the Building,
Lessee thereof shall further, at Lessee's expense, keep the sidewalks and curb
in front of said Premise clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purpose other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Lessee who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No Lessee shall sweep or throw or permit to be swept or thrown from the
Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the Building and
Lessee shall not use, keep or permit to be used or kept any foul or noxious gas
or substance in the Premises or permit or suffer the Premises to be occupied or
used in a manner offensive or objectionable to Lessor or other occupants of the
Building by reason of noise, odors and/or vibrations, or interfere in any way
with other Lessees or those having business therein, nor shall any animals or
birds be kept in or about the Building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the Building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Lessor.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Lessee on any part of the outside of the
Premises or the Building or on the inside of the Premises if the same is visible
from the outside of the Premises without the prior written consent of Lessor,
except that the name of Lessee may appear on the entrance door of the Premises.
In the event of the violation of the foregoing by any Lessee, Lessor may remove
same without any liability, and may charge the expense incurred by such removal
to Lessee or Lessees violating this rule. Interior signs on doors and directory
tablet shall be inscribed, painted or affixed for each Lessee by Lessor at the
expense of such Lessee, and shall be of a size, color and style acceptable to
Lessor.
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6. Except with prior written consent of Lessor and as Lessor may direct, no
Lessee shall xxxx, paint, drill into, or in any way deface any part of the
Premises or the Building of which they form a part or cut or string wires, lay
linoleum, or other similar floor covering, so that the same shall come in direct
contact with the floor of the Premises, and, if linoleum or other similar floor
covering is desired to be used, an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. Except with the prior written consent of Lessor, no additional locks or
bolts of any kind shall be placed upon any of the doors or windows by any
Lessee, nor shall any changes be made in existing locks or mechanism thereof. If
requested, Lessee shall provide Lessor with a copy of a key for all new locks or
bolts. Each Lessee shall, upon the termination of his tenancy, restore to Lessor
all keys either furnished to or otherwise procured by, such Lessee. In the event
of the loss of any keys furnished to Lessee, Lessee shall pay to Lessor the cost
thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the Premises only on the
freight elevators and through the service entrances and corridors or in an
alternative way approved by Lessor and only during hours and in a manner
approved by Lessor.
9. Canvassing, soliciting and peddling in the Building is prohibited and
each Lessee shall cooperate to prevent the same. -
10. Lessor shall have the right to prohibit any advertising by any Lessee
which, in Lessor's opinion, tends to impair the reputation of the Building or
its desirability as a building for offices, and upon written notice from Lessor,
Lessee shall refrain from or discontinue such advertising.
11. Except for those items necessary for the cleaning and maintenance of
Lessee's business, including office supplies, which shall be properly stored to
minimize the risk of fire and explosion, Lessee shall not bring or permit to be
brought or kept in or on the Premises, any inflammable, combustible or explosive
fluid, material, chemical or substance, or cause or permit any odors of cooking
or other process, or any unusual or other objectionable odors to permeate in or
emanate from the Premises.
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ADDENDUM #2; HAZARDOUS SUBSTANCES
---------------------------------
As used herein, the following definitions shall apply:
1. "Hazardous Substance" means any substance, waste or material which is deemed
hazardous, toxic, a pollutant or contaminant under any federal state or local
statute, law, ordinance, rule, regulation, or judicial or administrative order
or decision, now or hereafter in effect.
2. "Hazardous Substance on the Premises" means any hazardous substance present
in, on, near or emanating from the Premises or at the surface or below the
surface thereof. As used in this Addendum, the term "Premises" includes, in
addition to the leased Premises, the building(s) and grounds of which it is a
part.
3. "Applicable Law" shall mean all federal, state and local statutes, laws,
ordinances, rules and regulations and judicial and administrative orders,
rulings and decisions that are applicable now or in future to the Premises or
any portion thereof or to any activity which shall take place thereon.
Lessee shall not generate, store, release, dispose of or otherwise handle any
Hazardous Substance on the Premises; moreover, Lessee shall not take any action,
conduct any activity or fail to take any action which causes contributes, or is
likely to cause or contribute to, a threat of release of any Hazardous Substance
on the Premises.
Lessee furthermore shall not install or cause to be installed any chemical, oil
or gasoline storage tanks(s) on, under or around the Premises and it shall not
install or cause to be installed on, around or under the Premises any
transformers or other equipment which contain PCBs or other Hazardous
Substances.
Lessee shall defend, indemnify and hold harmless Lessor and any mortgagee of the
Premises from and against any and all liability, loss, suits, claims, actions,
causes of action, proceedings, demands, costs, penalties, fines and expenses,
including without limitation attorneys' fees, consultants' fees, and clean-up
costs, resulting from the presence of, release of, or threat of release of, any
Hazardous Substance on the Premises, or arising from the action or inaction of
Lessee, its employees, invitees, contractors, and agents, or arising out of the
generation, storage, treatment, handling, transportation, disposal or release
(or threat of release) by Lessee its employees, invitees, contractors and agents
of any Hazardous Substance at or near the Premises, or arising out of any
violation(s) by the same of any Applicable Law regarding Hazardous Substances.
Lessee shall remove, clean-up and remedy any Hazardous Substance on the
Premises, or any threat of release of Hazardous Substance on the Premises to
the extent required by Applicable Law, and Lessee shall be obligated to
continue to pay Base Rental, Additional Rents and other sums due under the
Lease until such removal, clean-up or remedy is completed in accordance with
Applicable Laws, whether or not the term of this Lease shall terminate or
expire. Lessee hereby grants Lessor the right to inspect the Premises
throughout the term of this Lease, to determine that Lessee is in compliance
with Applicable Laws and Lessee agrees to provide Lessor with all information
necessary to ascertain that Lessee is in compliance with Applicable Laws.
Lessee shall comply with all provisions of Massachusetts General Laws Chapter
21E, the Massachusetts Oil and Hazardous Material Release Prevention Act (the
"Act"), and in that regard shall comply with all "operator" obligations therein
including the reporting and requirements of Section 7 thereof.
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Any release or threat of release of any Hazardous Substance on the Premises
arising from the action or inaction of Lessee, its employees, invitees,
contractors, or agents, any breach by Lessee of its obligations under this
Addendum, or any violation by Lessee of the provisions of the Act shall
constitute a default by Lessee under the Lease. In the event of such a default,
notwithstanding the provisions of Paragraph 21, Lessor shall have the additional
right, but not the obligation, to take any action or perform any act required by
this Addendum of the Lessee to such extent and in such manner as Lessor deems
appropriate, including paying necessary costs, fees and attorneys' fees. The
making of any such payment or the performing of any such act by the Lessor
shall not waive or release the Lessee from its obligations and agreements
hereunder. All amounts so paid by Lessor shall be immediately due and payable by
Lessee to Lessor on demand, as additional rent with interest thereon at the rate
of three percent over the prime rate of interest announced from time to time by
the First National Bank of Boston.
Lessor, in addition and not in limitation of its rights in the preceding
paragraph, shall have the right to enforce Lessee's obligations under this
Addendum by taking legal action seeking among other things, injunctive relief.
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ADDENDUM # 3: LESSEE'S OPTION TO TERMINATE DURING ORIGINAL TERM
---------------------------------------------------------------
During the Original Term only, Lessee shall have one option to terminate the
Lease prior to the Expiration Date on the last day of the thirty-sixth (36th)
full month of the Lease Term. Lessee's such option as provided in this
Addendum #3 is further subject to the following (which terms shall be deemed of
the essence and are to be strictly construed);
(1) Lessee's election to terminate shall be properly tendered only when received
in accordance with the following:
(a) Lessee shall deliver to Lessor and Lessor must receive from Lessee at least
six (6) months written notice of its intention to terminate the Lease.
Notwithstanding the foregoing, notice shall not be effective other than the last
day of a calendar month ("Date of Cancellation").
(2) Lessee shall not be in material default beyond any applicable periods of
cure at anytime prior to the exercise of this option to terminate, and shall not
be in material default at the exercise hereof.
(3) Lessee shall cure any material default under the Lease existing on the Date
of Cancellation and Lessee's obligation to cure any default within the period of
time specified in the Lease shall survive the Date of Cancellation. In the event
Lessee shall not have cured any defaults within the applicable cure period, this
option to terminate shall be deemed canceled. Provided that the termination of
the Lease shall be perfected according to the terms hereof, Lessee shall
surrender possession of the Premises to Lessor in accordance with the provisions
of the Lease free of all subtenants, if any, as if the Date of Cancellation were
the Expiration Date of the Lease and any and all of Lessee's obligations under
the Lease which are deemed to accrue after the Date of Cancellation shall cease
as of the Date of Cancellation. Lessee shall be liable for all obligations which
shall have accrued or which shall have been deemed to exist prior to the Date of
Cancellation, including but not limited to the covenants to indemnify Lessor and
the obligation to pay prorated real estate taxes and the provisions hereof shall
survive the termination of the Lease.
In addition to any other monies due to Lessor, Lessee shall tender to Lessor
along with the Notice of Cancellation an amount equal to the sum of (i) the
unamortized value as of the Date of Cancellation of the leasehold improvements
performed by Lessor in accordance with Addendum #4, and (ii) the unamortized
value of any and all brokerage commissions incurred by Lessor in connection with
this lease (collectively, "Improvement Buy-out"). In determining the Improvement
Buy-out to be payable hereunder, the value of Lessor's Improvements and the
brokerage commission shall be amortized over a sixty (60) month period.
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ADDENDUM #4: LESSOR'S IMPROVEMENTS - CAP ON COST
-------------------------------------------------
Prior to the Commencement Date, Lessor shall make renovations and improvements
to the Premises ("Landlord's Work"), at Lessor's expense unless otherwise agreed
and shall be made using materials of a similar grade and quality as used by
Lessor throughout the Building..
Landlord's Work shall be performed in accordance with a plan (the "Plan") to be
supplied by Lessee which has been approved by each party as evidenced by its
initialing thereof. As so initialed, the Plan is incorporated herein by
reference.
Lessor shall be responsible for the cost of the Landlord's Work up to a maximum
amount of $40,250.00. If the cost of the Landlord's Work is to exceed
$40,250.00 then Lessor shall obtain Lessee's prior approval for incurring such
costs in excess thereof, whereupon Lessee shall be responsible for paying the
cost thereof in excess of said $40,250.00. Lessee shall pay such excess cost to
Lessor as it is incurred within fifteen (15) days of Xxxxxx'x xxxx therefor to
Lessee, which xxxx shall provide reasonable documentation of such excess costs.
In the event that Lessee fails to approve the expenditure of costs in excess of
$40,250.00 within three (3) days of Lessor's written request, then Lessor shall
have no obligation to perform any Landlord's Work the cost of which is in
excess of $40,250.00, and upon incurring said $40,250.00 amount for Landlord's
Work, Lessor shall be deemed to have fulfilled its obligations hereunder to
perform and complete Landlord's Work.
In the case of any delay in connection with the improvements and renovations,
the Commencement Date shall be extended as provided in Article 3 herein for the
period of such delays as provided in Article 3 herein unless Lessor and Lessee
agree that Lessee can occupy the Premises prior to substantial completion at a
rent to be agreed upon. Provided, however, in such event, Lessee shall not use
the Premises in such manner as will increase the cost of completion and agrees
that it shall pay Lessor an amount equal to 1/365th of the Minimum Rent for any
delay caused by Lessee or anyone employed by it, for each day of such delay.
Under no circumstances whatsoever shall Lessor be liable to Lessee for any
indirect or consequential damage caused by such delay.
Aside from those improvements specifically enumerated above, Lessee accepts
Premises "as is".
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SECRETARY'S CERTIFICATE
-----------------------
I, Xxxxxx X. Xxxxxxxxx, Secretary of First New England Dental Centers,
Inc. hereby certify that the Corporation is authorized as Lessee, to enter into
a Lease with Xxxxxxx Omnibus VII Limited Partnership, as Lessor, for
approximately 3,500 square feet of second (2nd) floor space, at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, with said Lease to be for a term of five
(5) years at a rent of $63,000.00 for the first year, as adjusted by the terms
of this Lease, a copy of which Lease is hereby attached and made a part hereof.
I further certify that Xxxxxx Xxxxxxx, President of the Coporation, has
authority to execute and deliver to the Lessor the Lease on behalf of the
Corporation upon the above terms.
WITNESS my hands and seal of the Corporation, this 1st day of April, 1996.
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------
, Secretary
[Corporate Seal]
(Affix Corporate Seal)
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EXHIBIT 1
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SUBORDINATION. NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
THIS AGREEMENT, dated as of ___________, 1996, is made by and between Fleet
National Bank of Massachusetts (formerly known as Shawmut Bank, N.A.), a
national banking association, for itself and as Agent for other banks
(hereinafter called "Mortgagee"), and First New England Dental Centers, Inc., a
New Jersey corporation with a principal place of business at 000 Xxxxxxxxxxxx
Xxxxxx, Xxxxxx, XX (hereinafter called Tenant").
WITNESSETH:
(a) WHEREAS Tenant has entered into a certain lease dated ____________
(together with all amendments thereto and modifications thereof, hereinafter
called the "Lease") with Xxxxxxx Omnibus VII Limited Partnership, a
Massachusetts Limited Partnership (hereinafter called "Landlord") covering
premises located within the building having an address of 85 Devonshire and
000-000 Xxxxxxxxxx Xxxxxxx in Boston, Massachusetts (the "Property"); and
(b) WHEREAS Mortgagee has made a mortgage loan to Landlord, secured by
a Mortgage and Security Agreement encumbering, INTER ALIA, Landlord's interest
in such premises and the land on which it is situated
NOW THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) by each party in hand paid to the other, the receipt of which is
hereby acknowledged, it is hereby agreed as follows: -
1. Tenant agrees that the Lease is and shall be subject and subordinate to
said Mortgage and Security Agreement and to all renewals, modifications,
consolidations, replacements, increases and extensions thereof (the "Mortgage"),
to the full extent of the principal sum from time to time secured thereby, all
interest and charges thereon, and all payments relating to the Property, said
subordination to be with the same effect as though the Mortgage (including any
such renewals, modifications, consolidations, replacements, increases and
extensions) had been executed, acknowledged, delivered and recorded, and value
secured thereby given, prior to the execution and delivery of the Lease and the
recording thereof or of any notice thereof. If and to the extent that the Lease
shall entitle Tenant to notice of any mortgage, this Agreement shall constitute
notice to Tenant with respect to the Mortgage. Tenant agrees that from and after
the date that Mortgagee, its successors or assigns, or a court-appointed
receiver or trustee or a bona fide third-party purchaser shall have obtained
fee title to the Property pursuant to a foreclosure action or sale,
deed-in-lieu of foreclosure or similar proceeding incident to the Mortgage, any
provision in the Lease providing Tenant with an option to purchase the property
or any part thereof, or with a right of first refusal to purchase the Property
or any part thereof, shall be of no further force and effect and shall
automatically terminate as of such date and, notwithstanding any provision of
this Agreement or the Lease to the contrary, no such provision shall be binding
upon the Mortgagee or its successors and assigns or such receiver, trustee or
purchaser. Without limiting the generality of the foregoing, no such provision
shall apply to a sale of the Property or any portion thereof at foreclosure or
incident to a deed-in-lieu of foreclosure or similar proceeding.
2. Tenant agrees that it will attorn to and recognize Mortgagee, any other
purchaser at a foreclosure sale under the Mortgage, any transferee who acquires
the Property by deed-in-lieu of foreclosure, and their respective successors and
assigns (Mortgage, any such other purchaser or transferee, and their receptive
successors and assigns being referred to herein collectively as the
"Successors"), as Landlord under and for the unexpired balance (and any
extensions, if exercised) of the term of the Lease upon the same terms and
conditions set forth therein.
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3. Mortgagee agrees that in the event the Mortgagee forecloses the
Mortgage, Mortgagee will not terminate the Lease nor join Tenant in summary or
foreclosure proceedings nor in any way disturb Tenant's quiet enjoyment of its
premises so long as no default has occurred with respect to which any applicable
grace period has expired in the payment or performance by Tenant of any of its
obligation under the terms, covenants or conditions of the Lease.
4. Tenant agrees that in the event any Successor succeeds to the interest
of Landlord under the Lease, such Successor shall not be:
(a) liable for any act or omission of any prior landlord (including
Landlord) or any successor landlord; or
(b) liable for the return of any security deposit; or
(c) subject to any offsets or defenses under the Lease or otherwise
which Tenant might have arising in connection with any act or omission
of any prior landlord (including Landlord); or
(d) bound by any rent or additional rent which Tenant might have
prepaid for more than the then current month under the Lease to any
prior landlord (including Landlord); or
(e) bound by any amendment or modification of the Lease made without
its consent; or
(f) bound by any consent by any landlord under the Lease to any
assignment or sublease of the tenant's interest in the Lease made
without also obtaining such Successor's prior written consent; or
(g) personally liable for any default under the Lease or any covenant
or obligation on its part to be performed thereunder as landlord, it
being acknowledged that Tenant's sole remedy in the event of such
default shall be to proceed against such Successor's interest in the
Property; or
(h) liable for breach of any representation or warranty made by any
landlord or for any indemnification obligation of the landlord under
the Lease.
5. Tenant agrees to send to Mortgagee a copy of any notice of default given
to Landlord at the same time as such notice is given to Landlord. Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in the Lease, then Mortgagee 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 to cure such default
including but not limited to, commencement of foreclosure proceedings if
necessary to effect such cure, in which event the Lease shall not be terminated
while such remedies are being so diligently pursued.
6. Any notice, consent or other communication, pursuant to the provisions
of this Agreement shall be in writing and shall be sent by registered or
certified mail, return receipt requested, or by a reputable commercial
overnight carrier that provides a receipt, such as Federal Express or Airborne,
and shall be deemed given three days after it is so
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mailed or one business day after it is delivered to such overnight carrier (as
the case may be) provided it is addressed as follows:
If to Mortgagee: Fleet National Bank of Massachusetts
(formerly known as Shawmut Bank, N.A.)
c/o Fleet National Bank
111 Westminster Street, Suite 800
Providence, Rhode Island 02903
Attn: Real Estate Division
with copy to: Goulston & Storrs, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Jordan X. Xxxxxxx, Esq.
If to Tenant: First New England Dental Centers, Inc.
00 Xxxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or to such other address as shall from time to time have been designated by
written notice by such party to the other party as herein provided.
7. Tenant consents to the assignment to Mortgagee of Landlord's interest in
and to the rents payable by Tenant under the Lease.
IN WITNESS WHEREOF, the parties hereto have executed these presents, which
shall be binding upon and inure to the benefit of their respective successors
and assigns, as of the day and year first above written.
TENANT: FIRST NEW ENGLAND DENTAL CENTERS, INC.
BY: /s/ Xxxxxx Xxxxxxx
------------------
MORTGAGEE: FLEET NATIONAL BANK OF MASSACHUSETTS
(formerly known as Shawmut Bank, N.A.)
By:
------------------------
Name:
Title:
32
33
STATE OF RHODE ISLAND )
) SS.
COUNTY OF )
On this _________ day of ________,1996, personally appeared before me
___________ to me personally known, who, being by me duly sworn, did say that he
is the ________________ of Fleet National Bank of Massachusetts (formerly known
as Shawmut Bank, N.A.) and such officer acknowledged the foregoing to be his
free act and deed and the free act and deed of Fleet National Bank of
Massachusetts.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
----------------------
Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS )
)SS.
COUNTY OF )
On this ___________day of ___________, 1996, personally appeared before me
________________ to me personally known, who, being by me duly sworn, did say
that he is the ___________________ of First New England Dental Centers, Inc. and
such officer acknowledged the foregoing to be his free act and deed and the free
act and deed of First New England Dental Centers, Inc.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year last above written.
----------------------
Notary Public
My Commission Expires:
33
34
AGREEMENT TO VACATE AND AGREEMENT FOR JUDGMENT
Agreement entered into this day of October, 1996 by and between 00 Xxxxxxxxxx
Xxxxxx, X.X.X. ("Xxxxxxxx"), a Massachusetts Limited Liability Company and First
New England Dental Centers, Inc., a Massachusetts corporation with its principal
place of business at 00 Xxxxxxxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxx ("Tenant").
Whereas, Landlord is the owner of those buildings known as 00 Xxxxxxxxxx Xxxxxx
and 258 and 000 Xxxxxxxxxx Xxxxxx in Boston, Massachusetts ("Premises");
Whereas, the Tenant presently occupies a portion of the Premises commonly known
as Suites 601 and 602 thereof and uses the same for office and business
operations of the Tenant;
Whereas, the tenancy agreement which the Tenant had with respect to Suite 601 of
the Premises expired on September 30, 1996, and the Tenant never had and does
not now have any right to occupy or use that portion of the Premises known as
Xxxxx 000 xx 000 Xxxxxxxxxx Xxxxxx;
Whereas, the Tenant has no right of any nature to continue to use and occupy any
part or portion of the Premises, and the Landlord is entitled to possession of
Suites 601 and 602 at this time;
Whereas, the Landlord has previously advised the Tenant in writing that the
Landlord requires the Tenant to vacate all portions of the Premises presently
occupied by the Tenant prior to October 1, 1996, and that the Landlord will
take all necessary and appropriate legal action to obtain possession of the
same;
Whereas, the Tenant has requested that it be permitted to remain in said Suites
601 and 602 until October 31, 1996 at 5:00 p.m.;
Whereas, the parties executed on October 1, 1996 a Letter Agreement detailing
and outlining the terms and conditions upon which the Landlord would allow the
Tenant to continue to use and occupy Suite 601 and 602 (said Letter Agreement
being attached hereto as Exhibit A and being made a part hereof); and
Whereas, as part of that Letter Agreement the parties have agreed to enter into
a comprehensive agreement encompassing all of their respective duties, rights
and obligations with respect to the use and occupancy of the Premises by the
Landlord.
Now therefore, the parties hereto covenant and agree as follows;
1. No later than 5:00 p.m. on October 31, 1996 the Tenant shall deliver
and surrender to the Landlord possession of all suites, units and
portions of the Premises now used and occupied by, or previously used
and occupied by the Tenant at the Premises. Said Premises shall be
in the same state and condition as they were at the time the Tenant
first took possession thereof. No later than such time the Tenant
shall remove all of its property, belongings, books, records, and
the like. Any such items remaining on the Premises after 5:00 p.m. on
October 31, 1996 shall be deemed abandoned by the Tenant, and shall
become the property of the Landlord.
2. In the event that the Tenant does not vacate all suites, units and
portions of the Premises and surrender possession of the same to the
Landlord in accordance with the immediately preceding numbered
paragraph, then the Landlord shall have the immediate and absolute
right, without further notice to the Tenant, to take any and all of
the following actions:
a. File with the appropriate court a Summary Process action with the
requested relief thereof being that a Judgement issue whereby the
Landlord is immediately granted sole and exclusive use and
possession of that portion of the Premises occupied by the
35
Tenant, and that an Execution be issued forthwith. The Tenant
waives any right to appeal from, or object to the issuance
thereof.
b. Have the right to use self help and any means available to it to
immediately obtain and take use and possession of that portion of
the Premises occupied by the Tenant, without need of filing any
pleading. Summary Process action or any other action in any
court.
3. The Tenant shall pay all of the Landlord's costs, damages, expenses
and reasonable attorney's fees incurred in enforcing this Agreement
and obtaining possession of the Premises in the event that the Tenant
fails to vacate the Premises as called for herein.
4. For each day or part thereof that the Tenant occupies all or a portion
of the Premises beyond 5:00 p.m. on October 31, 1996, the Tenant shall
be obligated to pay to the Landlord the sum of $657.00 per day.
5. By executing the within Agreement, the Tenant consents to the filing
of any and all pleadings and documents referred to above, and the
taking of all action by the Landlord referred to above. The within
Agreement shall be and act as the Tenant's express authorization and
consent to the same. The Tenant covenants and agrees that, in
consideration of the Landlord permitting the Tenant to remain at the
Premises until October 31, 1996, the Tenant shall comply with all the
terms hereof, and shall not object to any action which the Landlord
takes as set forth above, should the Tenant fail to vacate the
Premises as called for herein. In the event the Tenant fails to comply
with any or all of the terms of this Agreement the Tenant does hereby
grant to the Landlord Power of Attorney on behalf of the Tenant to
assent to and agree to any Summary Process or other action which the
Landlord may undertake in order to enforce the terms and provisions
hereof.
6. No tenancy shall be or is created by the execution of this Agreement,
or by the Landlord allowing the Tenant to continue to occupy the
Premises as set forth herein.
This Agreement represents the entire understanding of the parties and is
executed by them as their free act and deed. This Agreement shall be binding
upon and benefit the heirs, successors and assigns of the parties hereto. In
the event of any breach hereof by the Tenant, the Tenant shall be liable to pay
to the Landlord all costs, expenses and reasonable legal costs incurred by the
Landlord to enforce the Landlord's rights hereunder, and shall be liable to
the Landlord for all consequential or compensatory damages which the Landlord
may suffer as the result of the Tenant failing to vacate the Premises as called
for herein.
00 Xxxxxxxxxx Xxxxxx, X.X.X.
By: The Cathartes Group, Ltd., Manager
/s/ Xxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxxxx
--------------------------------------- -----------------------------------
Xxxxx X. Xxxxxxxxxx Witness
First New England Dental Centers, Inc.
By:
/s/ Xxxxxx Xxxxxxx
--------------------------------------- -----------------------------------
Witness
36
TENANT ESTOPPEL CERTIFICATE
---------------------------
TO: MetroWest Bank, having an address, 00 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000
together with its successors and assigns ("Lender")
THIS IS TO CERTIFY THAT:
The undersigned has been advised that Lender intends to make a loan secured
by a first leasehold mortgage on those certain premises commonly known as 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxx Xxxxxxxxxxxxx (the "Property"), in
which the undersigned currently occupies 3,500 s.f. of space under a Lease
Agreement dated July 10, 1996 (the "Lease") between the undersigned First New
England Dental ("Tenant") and XXXXXXX OMNIBUS VII LIMITED PARTNERSHIP,
("Landlord"). Incident to Lender's proposed loan and mortgage, and at Lender's
request, Tenant hereby certifies as follows:
1. Tenant is the holder of the lessee's interest under the Lease.
2. The Lease is in full force and effect and has not been modified
changed, altered, amended or supplemented in any respect (except as
may be indicated at the end of this Paragraph 2) and is the only Lease
or agreement between Tenant and Landlord affecting said Premises.
Tenant will not enter into any material modifications of the Lease
without the prior written consent of Lender. If none, state "none".
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. The term of the Lease is currently scheduled to expire on May 31,
2001. If there are any rights of extension or renewal remaining under
the terms of the Lease, the same has not, as of the date of this
Tenant Estoppel Certificate, been exercised.
4. Tenant has made no agreements with Landlord or its agents or employees
concerning, and has no right to, free rent, partial rent, rebate of
rental payments or any other type of rental concession (except as may
be indicated at the end of this Paragraph 4). If none state "none".
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. Tenant is current in payment of all fixed rent and other charges due
to be paid under the Lease, with minimum rent paid in full for the
period ending July, 1996. The monthly minimum (i.e. fixed) rent is
$5,250. No rent or other sum payable under the Lease is being paid in
arrears. No rent or other sum payable under the Lease has been paid in
advance of the due date thereof except for six months prepaid rent of
$31,500.00 which was paid upon possession of the premises and of which
$21,000.00 remains, and Tenant hereby agrees with Lender that it shall
not pay any minimum rent or any other sum due or to be paid under the
Lease more than thirty (30) days in advance of the due date hereof.
37
6. Tenant, as the holder of the lessee's interest under the Lease, is in
occupancy of all the premises covered by the Lease, and is actively
conducting such business therein and had been conducting its business
since June 7, 1996. The conduct of such business falls within the
uses stipulated as being permitted under the terms of the Lease.
7. Should Lender advise Tenant that Landlord is in default in the
indebtedness to Lender and request that payment of all future rentals
be made directly to Lender, Tenant agrees that it shall make all
future rental payments under the Lease directly to Lender until
instructed otherwise by Lender.
8. All of the obligations on the part of Landlord under the Lease,
including any obligation for the performance of any construction work,
or installation of any equipment, have been carried out, and Tenant
has no claim or knowledge of any claim against the holder of
Landlord's interest on account of any default or failure of
performance under the Lease. Tenant is not in default of any of its
obligations to be paid or performed under the Lease. As of the date
hereof, Tenant is entitled to no offset or deduction in rent and has
no claim or defense to the payment of any obligation under the Lease.
9. Tenant has received or will receive payment or credit for tenant
improvement work in the total amount of $___________ (or if other than
cash, describe below). If none, state
None.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
10. The Lease contains and Tenant has no outstanding options or rights of
first refusal to purchase the premises demised by the Lease or any
part thereof or the real property of which such premises are a part.
11. Tenant understands and acknowledges that (a) Landlord shall execute or
has executed an absolute assignment of the Lease and other leases in
favor or Lender; (b) notwithstanding said assignment, all rental,
additional rental and other payments due under the Lease shall
continue to be paid in accordance with the terms of the Lease until
and unless Tenant is notified to the contrary in writing by Lender;
and (c) the interest of Landlord in the Lease shall be or has been
assigned to Lender under the terms provided in said absolute
assignment or the mortgage and assignment of rents and leases securing
the Loan, and Lender assumes no duty, liability or obligation under
the Lease, either by virtue of said absolute assignment, the exercise
thereof or by any subsequent receipt or collection of rental,
additional rental or any other sums due thereunder.
12. No actions, whether voluntary or otherwise, are pending against Tenant
under the bankruptcy or other insolvency laws of the United States or
of any state thereof.
13. This certification is made to induce Lender to make certain fundings,
knowing that Lender shall rely upon the truth of this certificate in
disbursing said funds.
38
DO NOT EXECUTE THIS CERTIFICATE UNLESS A TRUE, CORRECT AND COMPLETE COPY OF YOUR
LEASE AND ALL AMENDMENTS THERETO ARE ATTACHED. LENDER IS RELYING ON YOUR
STATEMENTS AND AGREEMENTS CONTAINED IN THIS CERTIFICATE IN TAKING ACTION
RESPECTING A LOAN REQUEST RELATIVE TO THE PROPERTY.
Dated this 24th day of July, 199_.
TENANT:
/s/ Xxxxxx Xxxxxxx
----------------------------
By: Xxxxxx Xxxxxxx
------------------------
Title: President
---------------------
39
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
THIS AGREEMENT is made and entered into as of this _____ day of __________,
1996, by and among MetroWest Bank (the "Lender"), First New England Dental (the
"Tenant") and The Cathartes Group (the "Landlord").
Reference is made to the following facts:
A. Landlord and Tenant have entered into a lease, dated April 12, 1996,
(the "Lease") with respect to the property owned by the Landlord, known as
the 00 Xxxxxxxxxx Xxxxxx located in Boston, Massachusetts, (hereinafter
referred to as the "Property" or the "Leased Premises").
B. On or about _____________, 1996, Landlord entered into and delivered to
Lender a Mortgage and Security Agreement (the "Mortgage"), relating to the
Property to secure among other things the payment of the indebtedness
described in the Mortgage and assignment of rents and leases. The Mortgage
and assignment of rents and leases is recorded in the _______________
County Registry of Deeds.
C. As a condition to making the loan which is secured by the Mortgage and
assignment of rents and leases, Lender has required that the Landlord
obtain from each Tenant, the within Agreement pursuant to which the Tenant
subordinates the Lease to the lien of the Mortgage and assignment of rents
and leases and the Tenant attorns to Lender in the event Lender obtains
possession of the Property. Tenant has requested that Lender provide Tenant
with certain non-disturbance protections on the terms set forth below.
NOW, THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender, Tenant
and Landlord hereby covenant and agree as follows:
1. SUBORDINATION. Tenant hereby subordinates all of its right, title and
interest as lessee under the Lease to the right, title and interest of
Lender under the Mortgage and assignment of rents and leases; and Tenant
further agrees that the Lease now is and shall at all times continue to be
subject and subordinate in each and every respect to the Mortgage and
assignment of rents and leases and to any and all increases, renewals,
modifications, extensions, substitutions, replacements and/or
consolidations of the Mortgage and assignment of rents and leases.
After recording, please return to:
First New England Dental
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
40
2. NON-DISTURBANCE. So long as no default exists, the Lease shall not be
terminated, nor shall Tenant's use, possession or enjoyment of the Leased
Premises or rights under the Lease be interfered with in any foreclosure or
other action or proceeding in the nature of foreclosure instituted under or
in connection with the Mortgage and assignment of rents and leases or in
case Lender takes possession of the Property pursuant to any provisions of
the Mortgage and assignment of rents and leases, unless the Landlord would
have had such right to interfere if the Mortgage and assignment of rents
and leases had not been made, except that Lender and the person or entity
acquiring the interest of the Landlord as a result of any such action or
proceeding or deed in lieu of any such action or proceeding (the
"Purchaser") shall not be (a) liable for any act or omission of any prior
lessor under the Lease which occurred prior to the date Lender or Purchaser
obtained possession of the Property; or (b) liable for the return of any
security deposit which Tenant has paid to any prior lessor under the Lease
unless such security deposit was actually delivered to Lender; or (c)
subject to any offsets or defenses which the Tenant might have against any
prior lessor under the Lease; provided, however, that the foregoing shall
not limit Tenant's right to exercise against Lender or Purchaser any right
of Tenant to any offset or defense otherwise available to Tenant because of
events occurring after the date Lender takes possession of the Property; or
(d) bound by any base rent, percentage rent or any other payments which
Tenant might have paid more than thirty (30) days in advance of amounts due
for the current month to any prior lessor under the Lease; or (e) bound by
any amendment or modification of the Lease which increases the obligations
or responsibilities of Landlord thereunder or changes the rent or the term
thereof and is made without Lender's prior written consent; or (f) bound by
any consent by any lessor under the Lease to any assignment or sublease of
the Tenant's interest in the Lease made without also obtaining Lender's
prior written consent; or (g) personally liable for any default under the
Lease or any covenant or obligation on its part to be performed thereunder
as lessor, it being acknowledged that Tenant's sole remedy in the event of
such default shall be to proceed against Purchaser's or Lender's interest
in the Property.
3. ATTORNMENT. If the interests of the Landlord shall be transferred by
reason of the exercise of the power of sale contained in the Mortgage and
assignment of rents and leases (if applicable), or by any foreclosure or
other proceeding for enforcement of the Mortgage, or by deed in lieu of
foreclosure or such other proceeding, or if Lender takes possession of the
Property pursuant to any provisions of the Mortgage and assignment of rents
and leases then, unless the Lease is terminated in accordance with the
terms of the Lease or Paragraph 2 hereof, the Tenant thereunder shall be
bound to the Purchaser or Lender, as the case may be, under all of the
terms, covenants and conditions of the Lease for the balance of the term
thereof and any extensions or renewals thereof which may be effected in
accordance with any option therefor in the Lease, with the same force and
effect as if the Purchaser or Lender were the lessor under the Lease, and
Tenant, as lessee under the Lease, does hereby attorn to the Purchaser and
Lender if it takes possession of the Property, as its lessor under the
Lease. Such attornment shall be effective and self-operative without the
execution of any further instruments upon the succession by Purchaser to
the interest of the Landlord or the taking of possession of the Property by
Lender. Nevertheless, Tenant shall, from time to time, execute and deliver
such instruments evidencing such attornment as Purchaser or Lender may
require. The respective rights and obligations of Purchaser, Lender and of
the Tenant upon such attornment, to the extent of the then remaining
balance of the term of the Lease and any such extensions and renewals,
shall be and are the same as now set forth in the Lease except as otherwise
expressly provided in Paragraph 2 hereof.
41
4. ASSIGNMENT OF LESSOR'S INTEREST IN LEASES. Tenant hereby acknowledges
that all of Landlord's right, title and interest as lessor under the Lease
is being duly assigned to Lender pursuant to the terms of the Mortgage and
assignment of rents and leases, and that pursuant to the terms thereof all
rental payments under the Lease shall continue to be paid to Landlord in
accordance with the terms of the Lease unless and until Tenant is otherwise
notified in writing by Lender. Upon receipt of any such written notice from
Lender, Tenant covenants and agrees to make payment of all rental payments
then due or to become due under the Lease directly to Lender or to Lender's
agent designated in such notice and to continue to do so until otherwise
notified in writing by Lender. Landlord hereby irrevocably directs and
authorizes Tenant to make rental payments directly to Lender following
receipt of such notice, and covenants and agrees that Tenant shall have the
right to rely on such notice without any obligation to inquire as to
whether any default exists under the Mortgage and assignment of rents and
leases or the indebtedness secured thereby, and notwithstanding any notice
or claim of Landlord to the contrary, and that Landlord shall have no right
or claim against Tenant for or by reason of any rental payments made by
Tenant to Lender following receipt of such notice. Tenant further
acknowledges and agrees: (a) that under the provisions of the Mortgage and
assignment of rents and leases, the Lease cannot be terminated (nor can
Landlord accept any surrender of the Lease) or modified in any of its
terms, or consent be given to the waiver or release of Tenant from the
performance or observance of any obligation under the Lease, without the
prior written consent of Lender, and no rent may be collected or accepted
by Landlord more than one month in advance without Lender's prior written
consent; and (b) that the interest of Landlord as lessor under the Lease
has been assigned to Lender for the purposes specified in the Mortgage and
assignment of rents and leases, and Lender assumes no duty, liability or
obligation under the Lease, except only under the circumstances, terms and
conditions specifically set forth in the Mortgage and assignment of rents
and leases.
5. NOTICE OF DEFAULT BY LANDLORD. Tenant, as lessee under the Lease, hereby
covenants and agrees to give Lender written notice specifying when the
Landlord has failed to perform any of the covenants or obligations of
Landlord, simultaneously with the giving of any notice of such default to
the lessor under the provisions of the Lease. Tenant agrees that Lender
shall have the right, but not the obligation, within a reasonable time
after receipt by Lender of such notice (or within such additional time as
is reasonably required to obtain possession of the Property if possession
is necessary for the Lender to correct or cure the condition) to correct or
remedy, or cause to be corrected or remedied, each such default before the
lessee under the Lease may take any action under the Lease by reason of
such default. Such notices to Lender shall be delivered to:
METROWEST BANK
00 XXXX XXXXXX
XXXXXXXXXX, XX 00000
ATTN: XXXXX XXXXXXXX
with a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
CUDDY, XXXXX & DENNER
One Financial Center, 43rd Fl.
Xxxxxx, XX 00000
Attention: Esquire
42
or to such other address as the Lender shall have designated to Tenant by
giving written notice to Tenant at:
First New England Dental
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, President
or to such other address as may be designated by written notice from Tenant
to Lender.
6. NO FURTHER SUBORDINATION. Except as expressly provided in Paragraph 1
hereof, Landlord and Tenant covenant and agree with Lender that there shall
be no further subordination of the interest of Tenant under the Lease to
any lender or to any other party without first obtaining the prior written
consent of Lender. Any attempt to effect a further subordination of
Tenant's interest under the Lease without first obtaining the prior written
consent of Lender shall be null and void.
7. AS TO LANDLORD AND TENANT. As between Landlord and Tenant, Landlord and
Tenant covenant and agree that nothing herein contained nor anything done
pursuant to the provisions hereof shall be deemed or construed to modify
the Lease.
8. AS TO LANDLORD AND LENDER. As between Landlord and Lender, Landlord and
Lender covenant and agree that nothing herein contained nor anything done
pursuant to the provisions thereof shall be deemed or construed to modify
the Mortgage and assignment of rents and leases or any of the other
documents executed by the Landlord in connection with the loan from the
Lender.
9. TITLE OF PARAGRAPHS. The titles of the paragraphs of this agreement are
for convenience and reference only, and the words contained therein shall
in no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this agreement.
10. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
11. PROVISIONS BINDING. The terms and provisions hereof shall be binding
upon and shall inure to the benefit of the heirs, executors,
administrators, successors and permitted assigns, respectively, of Lender,
Tenant and Landlord. The reference contained to successors and assigns of
Tenant is not intended to constitute and does not constitute a consent by
Landlord or Lender to an assignment by Tenant, but has reference only to
those instances in which the Landlord and Lender shall have given written
consent to a particular assignment by Tenant thereunder:
43
IN WITNESS WHEREOF, the parties have hereunto set their respective hands and
seals.
"LENDER"
By:
-----------------------
Its:
-----------------------
"TENANT"
By: /s/ Xxxxxx Xxxxxxx
-----------------------
Xxxxxx Xxxxxxx
Its: President
-----------------------
"LANDLORD"
By:
-----------------------
Its:
-----------------------
COMMONWEALTH OF MASSACHUSETTS
Suffolk ,ss July 24, 1996
-------
Then personally appeared the above-named Xxxxxx Xxxxxxx President of First
New England Dental Centers, Inc., and acknowledged the foregoing instrument
to be his/her free act and deed as President of said corporation, before me.
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
---------------------------
Notary Public
My commission expires:
[Stamp XXXXXX X. XXXXXXXXX, XX.
NOTARY PUBLIC
MY COMMISSION EXPIRES JUNE 1, 2001]
44
COMMONWEALTH OF MASSACHUSETTS
___________________,ss _______________, 199_
Then personally appeared the above-named _________________________,
_________________ of ______________________, and acknowledged the foregoing
instrument to be his/her free act and deed as ___________________ of said
____________________, before me.
------------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
___________________,ss _______________, 199_
Then personally appeared the above-named _________________________,
_________________ of ______________________, and acknowledged the foregoing
instrument to be his/her free act and deed as ___________________ of said
____________________, before me.
------------------------------------
Notary Public
My commission expires:
45
TENANT ESTOPPEL CERTIFICATE
---------------------------
TO: MetroWest Bank, having an address, 00 Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000
together with its successors and assigns ("LENDER")
THIS IS TO CERTIFY THAT:
The undersigned has been advised that Lender intends to make a loan secured
by a first leasehold mortgage on those certain premises commonly known as 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxx Xxxxxxxxxxxxx (the "Property"), in
which the undersigned currently occupies 1,700 s.f. of space under a Lease
Agreement dated (the "Lease") between the undersigned First New England Dental
("Tenant") and XXXXXXX OMNIBUS VII LIMITED PARTNERSHIP, ("Landlord"). Incident
to Lender's proposed loan and mortgage, and at Lender's request, Tenant hereby
certifies as follows:
1. Tenant is the holder of the lessee's interest under the Lease.
2. The Lease is in full force and effect and has not been modified
changed, altered, amended or supplemented in any respect (except as
may be indicated at the end of this Paragraph 2) and is the only Lease
or agreement Tenant and Landlord affecting said Premises. Tenant will
not enter into any material modifications of the Lease without the
prior written consent of Lender. If none, state "none".
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. The term of the Lease is currently scheduled to expire on September
30, 1996. If there are any rights of extension or renewal remaining
under the terms of the Lease, the same has not, as of this date of
this Tenant Estoppel Certificate, been exercised.
4. Tenant has made no agreements with Landlord or its agents or employees
concerning and has no right to, free rent, partial rent, rebate of
rental payments or any other type of rental concession (except as may
be indicated at the end of this Paragraph 4). If none state "none".
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. Tenant is current in payment of all fixed rent and other charges due
to be paid under the Lease, with minimum rent paid in full for the
period ending June, 1996 with the exception of $1,480.00 (July, 1996
rent) for a rent increase which occurred June 1, 1996. The monthly
minimum (i.e. fixed) rent is $1,740.00. No rent or other sum payable
under the Lease is being paid in arrears. No rent or other sum payable
under the Lease has been paid in advance of the due date thereof, and
Tenant hereby agrees with Lender that it shall not pay any minimum
rent or any other sum due or to be paid under the Lease more than
thirty (30) days in advance of the due date hereof.
46
6. Tenant, as the holder of the lessee's interest under the Lease, is in
occupancy of all the premises covered by the Lease, and is actively
conducting such business therein and had been conducting its business
since April 3, 1996. The conduct of such business falls within the
uses stipulated as being permitted under the terms of the Lease.
7. Should Lender advise Tenant that Landlord is in default in the
indebtedness to Lender and request that payment of all future rentals
be made directly to Lender, Tenant agrees that it shall make all
future rental payments under the Lease directly to Lender until
instructed otherwise by Lender.
8. All of the obligations on the part of Landlord under the Lease,
including any obligation for the performance of any construction work,
or installation of any equipment, have been carried out, and Tenant
has no claim or knowledge of any claim against the holder of
Landlord's interest on account of any default or failure of
performance under the Lease. Tenant is not in default of any of its
obligations to be paid or performed under the Lease. As of the date
hereof, Tenant is entitled to no offset or deduction in rent and
has no claim or defense to the payment of any obligation under the
Lease.
9. Tenant has received or will receive payment or credit for tenant
improvement work in the total amount of $________ (or if other than
cash, describe below). If none, state "none".
None.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
10. The Lease contains and Tenant has no outstanding options or rights of
first refusal to purchase the premises demised by the Lease or any
part thereof or the real property of which such premises are a part.
11. Tenant understands and acknowledges that (a) Landlord shall execute or
has executed an absolute assignment of the Lease and other leases in
favor or Lender; (b) notwithstanding said assignment, all rental,
additional rental and other payments due under the Lease shall
continue to be paid in accordance with the terms of the Lease until
and unless Tenant is notified to the contrary in writing by Lender;
and (c) the interest of Landlord in the Lease shall be or has been
assigned to Lender under the terms provided in said absolute Lender
assumes no duty, liability or obligation under the Lease, either by
virtue of said absolute assignment, the exercise thereof or by any
subsequent receipt or collection of rental, additional rental or any
other sums due thereunder.
12. No actions, whether voluntary or otherwise, are pending against
tenant under the bankruptcy or other insolvency laws of the United
States or of any state thereof.
13. This certification is made to induce Lender to make certain fundings,
knowing that Lender shall rely upon the truth of this certificate in
disbursing said funds.
47
DO NOT EXECUTE THIS CERTIFICATE UNLESS A TRUE, CORRECT AND COMPLETE COPY OF YOUR
LEASE AND ALL AMENDMENTS THERETO ARE ATTACHED. LENDER IS RELYING ON YOUR
STATEMENTS AND AGREEMENTS CONTAINED IN THIS CERTIFICATE IN TAKING ACTION
RESPECTING A LOAN REQUEST RELATIVE TO THE PROPERTY.
Dated this 24th day of July, 1996.
TENANT:
/s/ Xxxxxx Xxxxxxx
-------------------------
By: Xxxxxx Xxxxxxx
---------------------
Title: President
---------------------
48
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
-------------------------------------------------------
THIS AGREEMENT is made and entered into as of this day of ,
1996, by and among MetroWest Bank (the "Lender"), First New England Dental
(the "Tenant") and The Cathartes Group (the "Landlord").
Reference is made to the following facts:
A. Landlord and Tenant have entered into a lease, dated (the "Lease") with
respect to the property owned by the Landlord, known as 000-000
Xxxxxxxxxx Xxxxxx located in Boston, Massachusetts, (hereinafter referred
to as the "Property" or the "Leased Premises").
B. On or about __________, 1996, Landlord entered into and delivered to
Lender a Mortgage and Security Agreement (the "Mortgage"), relating to the
Property to secure among other things the payment of the indebtedness
described in the Mortgage and assignment of rents and leases. The Mortgage
and assignment of rents and leases is recorded in the _______________
County Registry of Deeds.
C. As a condition to making the loan which is secured by the Mortgage and
assignment of rents and leases, Lender has required that the Landlord
obtain from each Tenant, the within Agreement pursuant to which the Tenant
subordinates the Lease to the lien of the Mortgage and assignment of rents
and leases and the Tenant attorns to Lender in the event Lendor obtains
possession of the Property. Tenant has requested that Lender provide
Tenant with certain non-disturbance protections on the terms set
forth below.
NOW, THEREFORE for and in consideration of the mutual covenants hereinafter
set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender, Tenant and Landlord
hereby covenant and agree as follows:
1. SUBORDINATION. Tenant hereby subordinates all of its right, title and
interest as lessee under the Lease to the right, title and interest of
Lender under the Mortgage and assignment of rents and leases, and Tenant
further agrees that the Lease now is and shall at all times continue to be
subject and subordinate in each and every respect to the Mortgage and
assignment of rents and leases and to any and all increases, renewals,
modifications, extensions, substitutions, replacements and/or
consolidations of the Mortgage and assignment of rents and leases.
After recording, please return to:
First New England Dental
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
49
2. NON-DISTURBANCE. So long as no default exists, the Lease shall not be
terminated, nor shall Tenant's use, possession or enjoyment of the Leased
Premises or rights under the Lease be interfered with in any foreclosure
or other action or proceeding in the nature of foreclosure instituted under
or in connection with the Mortgage and assignment of rents and leases or in
case Lender takes possession of the Property pursuant to any provisions of
the Mortgage and assignment of rents and leases, unless the Landlord would
have had such right to interfere if the Mortgage and assignment of rents
and leases had not been made, except that Lender and the person or entity
acquiring the interest of the Landlord as a result of any such action or
proceeding or deed in lieu of any such action or proceeding (the
"Purchaser") shall not be (a) liable for any act or omission of any prior
lessor under the Lease which occurred prior to the date Lender or
Purchaser obtained possession of the Property; or b) liable for the
return of any security deposit which Tenant has paid to any prior lessor
under the Lease unless such security deposit was actually delivered to
Lender; or (c) subject to any offsets or defenses which the Tenant might
have against any prior lessor under the Lease; provided, however, that the
foregoing shall not limit Tenant's right to exercise against Lender or
Purchaser any right of Tenant to any offset or defense otherwise
available to Tenant because of events occurring after the date Lender
takes possession of the Property; or (d) bound by any base rent,
percentage rent or any other payments which Tenant might have paid more
than thirty (30) days in advance of amounts due for the current month to
any prior lessor under the Lease; or (e) bound by any amendment or
modification of the Lease which increases the obligations or
responsibilities of Landlord thereunder or changes the rent or the term
thereof and is made without Lender's prior written consent; or (f) bound by
any consent, by any lessor under the Lease to any assignment or sublease of
the Tenant's interest in the Lease made without also obtaining Lender's
prior written consent; or (g) personally liable for any default under the
Lease or any covenant or obligation on its part to be performed thereunder
as lessor, it being acknowledged that Tenant's sole remedy in the event of
such default shall be to proceed against Purchaser's or Lender's interest
in the Property.
3. ATTORNMENT. If the interests of the Landlord shall be transferred by
reason of the exercise of the power of sale contained in the Mortgage and
assignment of rents and leases (if applicable), or by any foreclosure or
other proceeding for enforcement of the Mortgage, or by deed in lieu of
foreclosure or such other proceeding, or if Lender takes possession of the
Property pursuant to any provisions of the Mortgage and assignment of rents
and leases then, unless the Lease is terminated in accordance with the
terms of the Lease or Paragraph 2 hereof, the Tenant thereunder shall be
bound to the Purchaser or Lender, as the case may be, under all of the
terms, covenants and conditions of the Lease for the balance of the term
thereof and any extensions or renewals thereof which may be effected in
accordance with any option therefor in the Lease, with the same force
and effect as if the Purchaser or Lender were the lessor under the
Lease, and Tenant, as lessee under the Lease, does hereby attorn to the
Purchaser and Lender if it takes possession of the Property, as its
lessor under the Lease. Such attornment shall be effective and
self-operative without the execution of any further instruments upon the
succession by Purchaser to the interest of the Landlord or the taking of
possession of the Property by Lender. Nevertheless, Tenant shall, from
time to time, execute and deliver such instruments evidencing such
attornment as Purchaser or Lender may require. The respective rights and
obligations of Purchaser, Lender and of the Tenant upon such attornment,
to the extent of the then remaining balance of the term of the Lease and
any such extensions and renewals, shall be and are the same as now set
forth in the Lease except as otherwise expressly provided in Paragraph 2
hereof.
50
4. ASSIGNMENT OF LESSOR'S INTEREST IN LEASES. Tenant hereby acknowledges
that all of Landlord's right, title and interest as lessor under the lease
is being duly assigned to Lender pursuant to the terms of the Mortgage and
assignment of rents and leases, and that pursuant to the terms thereof all
rental payments under the Lease shall continue to be paid to Landlord in
accordance with the terms of the Lease unless and until Tenant is
otherwise notified in writing by Lender. Upon receipt of any such
written notice from Lender, Tenant covenants and agrees to make payment
of all rental payments then due or to become due under the Lease directly
to Lender or to Lender's agent designated in such notice and to continue
to do so until otherwise notified in writing by Lender. Landlord hereby
irrevocably directs and authorizes Tenant to make rental payments
directly to Lender following receipt of such notice, and covenants and
agrees that Tenant shall have the right to rely on such notice without
any obligation to inquire as to whether any default exists under the
Mortgage and assignment of rents and leases or the indebtedness secured
thereby, and nothwithstanding any notice or claim of Landlord to the
contrary, and that Landlord shall have no right or claim against Tenant
for or by reason of any rental payments made by Tenant to Lender following
receipt of such notice. Tenant further acknowledges and agrees: (a) that
under the provisions of the Mortgage and assignment of rents and leases,
the Lease cannot be terminated (nor can Landlord accept any surrender of
the Lease) or modified in any of its terms, or consent be given to the
waiver or release of Tenant from the performance or observance of any
obligation under the Lease, without the prior written consent of Lender,
and no rent may be collected or accepted by Landlord more than one month
in advance without Lender's prior written consent; and (b) that the
interest of Landlord as lessor under the Lease has been assigned to Lender
for the purposes specified in the Mortgage and assignment of rents and
leases, and Lender assumes no duty, liability or obligation under the
Lease, except only under the circumstances, terms and conditions
specifically set forth in the Mortgage and assignment of rents and leases.
5. NOTICE OF DEFAULT BY LANDLORD. Tenant, as lessee under the Lease, hereby
covenants and agrees to give Lender written notice specifying when the
Landlord has failed to perform any of the covenants or obligations of
Landlord, simultaneously with the giving of any notice of such default to
the lessor under the provisions of the Lease. Tenant agrees that Lender
shall have the right, but not the obligation, within a reasonable time
after receipt by Lender of such notice (or within such additional time as
is reasonably required to obtain possession of the Property if possession
is necessary for the Lender to correct or cure the condition) to correct or
remedy, or cause to be corrected or remedied, each such default before the
lessee under the Lease may take any action under the Lease by reason of
such default. Such notices to Lender shall be delivered to:
METROWEST BANK
00 XXXX XXXXXX
XXXXXXXXXX, XX 00000
ATTN: XXXXX XXXXXXXX
with a copy to:
Xxxxxx X. Xxxxxxxxx, Esquire
CUDDY, XXXXX & DENNER
One Financial Center, 43rd Fl.
XXXXXX, XX 00000
Attention: Esquire
51
or to such other address as the Lender shall have designated to Tenant by
giving written notice to Tenant at:
First New England Dental
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx O21O9
Attention: Xxxxxx Xxxxxxx, President
or to such other address as may be designated by written notice from Tenant
to Lender.
6. NO FURTHER SUBORDINATION. Except as expressly provided in Paragraph 1
hereof; Landlord and Tenant covenant and agree with Lender that there shall
be no further subordination of the interest of Tenant under the Lease to
any lender or to any other party without first obtaining the prior written
consent of Lender. Any attempt to effect a further subordination of Tenant
interest under the Lease without first obtaining the prior written
consent of Lender shall be null and void.
7. AS TO LANDLORD AND TENANT. As between Landlord and Tenant, Landlord and
Tenant covenant and agree that nothing herein contained nor anything done
pursuant to the provisions hereof shall be deemed or construed to modify
the Lease.
8. AS TO LANDLORD AND LENDER. As between Landlord and Lender, Landlord and
Lender covenant and agree that nothing herein contained nor anything done
pursuant to the provisions thereof shall be deemed or construed to modify
the Mortgage and assignment of rents and leases or any of the other
documents executed by the Landlord in connection with the loan from the
Lender.
9. TITLE OF PARAGRAPHS, The titles of the paragraphs of this agreement are
for convenience and reference only, and the words contained therein shall
in no way be held to explain, modify, amplify or aid in the interpretation,
construction or meaning of the provisions of this agreement.
10. GOVERNING LAW. This agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts.
11. PROVISIONS BINDING. The terms and provisions hereof shall be binding
upon and shall inure to the benefit of the heirs, executors,
administrators, successors and permitted assigns, respectively, of Lender,
Tenant and Landlord. The reference contained to successors and assigns of
Tenant is not intended to constitute and does not constitute a consent by
Landlord or Lender to an assignment by Tenant, but has reference only to
those instances in which the Landlord and Lender shall have given written
consent to a particular assignment by Tenant thereunder
52
IN WITNESS WHEREOF, the parties have hereunto set their respective hands and
seals.
"LENDER"
By:
------------------------------
Its:
-----------------------------
"TENANT"
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
Its: President
-----------------------------
"LANDLORD"
By:
------------------------------
Its:
-----------------------------
COMMONWEALTH OF MASSACHUSETTS
Suffolk ss July 24, 1996
---------------------, -------------
Then personally appeared the above-named Xxxxxx Xxxxxxx
----------------------------------
President of First New England Dental Centers, Inc., and
-------------------- --------------------------------------------
acknowledged the foregoing instrument to be his/her free act and deed as
President of said corporation, before me.
--------------- -----------------
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
---------------------------------
Notary Public
My commission expires:
[STAMP: XXXXXX X. XXXXXXXXX, XX.
NOTARY PUBLIC
MY COMMISSION EXPIRES JUNE 1, 2001]
53
COMMONWEALTH OF MASSACHUSETTS
ss , 199
---------------------, ------------ --
Then personally appeared the above-named
----------------------------------,
of , and
-------------------- --------------------------------------------
acknowledged the foregoing instrument to be his/her free act and deed as
of said , before me.
--------------- -----------------
---------------------------------
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS
ss , 199
---------------------, ------------ --
Then personally appeared the above-named
----------------------------------,
of , and
-------------------- --------------------------------------------
acknowledged the foregoing instrument to be his/her free act and deed as
of said , before me.
--------------- -----------------
---------------------------------
Notary Public
My commission expires:
54
USE AND OCCUPANCY LICENSE AGREEMENT
-----------------------------------
THIS USE AND OCCUPANCY LICENSE AGREEMENT is made as of the 3rd day of April,
1996 between Xxxxxxx Omnibus VII Limited Partnership, a Massachusetts limited
partnership having an address c/o Berkeley Investments, Inc., 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Owner") and First New England Dental
Centers, Inc., a New Jersey corporation with a principal place of business at
000 Xxxxxxxxxxxx Xxxxxx, Xxxxxx, XX ("Occupant").
WHEREAS, the parties hereto have executed a lease (the "Lease") of the
premises (the "Premises") consisting of approximately 3,500 square feet of
rentable space having an address of 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 located on the second (2nd) floor of the building (the "Building")
situated at and numbered 85 Devonshire and 000-000 Xxxxxxxxxx Xxxxxxx in Boston,
Massachusetts, which Lease was estimated to commence April 1, 1996; and
WHEREAS, Owner has not yet completed its improvements to the Premises in
accordance with Addendum #3 of the Lease; and
WHEREAS, User desires to occupy approximately 1,700 square feet of
rentable sixth (6th) floor space at the Building (the "Licensed Space") for the
period until Owner's improvements to the Premises according to Addendum #3 of
the Lease are substantially completed; and
WHEREAS, Owner is willing to grant a license to Occupant to permit such
occupancy upon the terms and conditions herein.
NOW THEREFOR, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, Owner hereby grants to Occupant a
license which shall be revocable as provided in this Agreement to use and occupy
such Licensed Space on the terms hereinafter set forth.
1. TERM. The term of this Agreement shall commence on April 5, 1996 and shall
end on the "Expiration Date", which shall be the earliest to occur of the
following:
a. The Commencement Date of the aforesaid Lease; or
b. The thirtieth day following the delivery of written notice by either
party to the other of its intent to terminate this agreement.
2. DELIVERY OF THE PREMISES. Occupant acknowledges that it has inspected the
Licensed Space and is fully familiar with the physical condition thereof and
agrees to take the same "as is".
3. FEE. Occupant shall pay owner monthly in advance the amount of One Thousand
($1,000.00) Dollars as a fee for such use and occupancy of the Licensed Space,
and it shall pay a pro-rata share of such amount for any portion of a calendar
month in which it occupies the Licensed Space. Except for all costs and charges
for telephone service, which shall be the sole responsibility of User, Owner
shall be responsible for the cost of all other utilities supplied to the
Licensed Space.
55
4. USE. Occupant shall use and occupy the Licensed Space solely as
administrative offices for a consortium of dental practices and such other
lawful use incidental and related thereto.
5. ASSIGNMENT AND SUBLETTING. Occupant shall not assign, transfer, mortgage or
pledge this Agreement or its rights hereunder, nor enter into any other
occupancy arrangement for the Licensed Space.
6. COMPREHENSIVE COMMERCIAL LIABILITY INSURANCE. User agrees to maintain
throughout the term of this Agreement, Comprehensive Commercial Liability
Insurance written on an occurrence basis. Such insurance shall include coverage
for products/completed operations, personal injury, broad form property damage,
extended bodily injury and broad form contractual liability. The minimum limit
of liability carried on such insurance shall be $1,000,000 combined single limit
for each occurrence with any aggregate limit applying only to each of the
following: products/completed operations, personal injury and contractual
liability. However, if the policy contains a general policy aggregate or an
aggregate which applies to coverages other than the aforementioned coverages,
the Lessee shall purchase minimum limit of $1,000,000 per occurrence/$2,000,000
aggregate per location. Owner and Occupant each waive all claims and rights
against the other with respect to the Licensed Space to the extent of any
casualty for which there is recovery under any insurance policy, and all
property insurance policies carried by either party shall include a waiver of
its rights of subrogation against the other.
7. INDEMNIFICATION. To the fullest extent permitted by law, Occupant shall
defend, indemnify and hold harmless Owner, its agents, and any and all
affiliates of Owner, including, without limitation, any corporations or other
entities controlling, controlled by or under common control with Owner, from and
against any and all claims or liabilities (including injury to persons and
damage to property) arising from Occupant's use or occupancy of the Licensed
Space, the Building or the common areas or arising out of the conduct of its
business, or from any activity, work, or thing done or permitted by Occupant or
its agents, employees, invitees, licensees, contractors or subcontractors in or
about the Licensed Space or Building or the lot or arising from any breach of
default in the performance of any obligation on Occupant's part to be performed
hereunder, or arising from any act or negligence of Occupant, or of its agents,
employees, invitees, contractors or subcontractors or licensees, and from and
against all costs, attorney's fees, expenses and liabilities incurred or any
actions or proceedings brought thereon to the extent not due to the negligence
of Owner or Owner's employees or agents.
8. NO ALTERATIONS. Occupant agrees to make no alterations or additions or
improvements to the Licensed Space or to any portion of the Building, except
that it shall be permitted to install its property and any security or other
equipment necessary for the use and occupancy of the Licensed Space in
accordance with the terms hereof.
9. MAINTENANCE. Occupant shall maintain the Licensed Space in the same condition
as they are in on the date of this Agreement, reasonable wear and tear and
damage by fire or other casualty or by taking only excepted. Owner agrees to
maintain the structure of the Building of which the Licensed Space are a part in
the same condition as it is on the commencement date of this Agreement,
reasonable wear and tear, damage by fire and other casualty only excepted,
unless such maintenance is required because of the conduct of Occupant or those
for whose conduct Occupant is legally
2
56
responsible. Owner shall be responsible for maintaining the Building's HVAC and
electrical systems which serve the Available Space.
10. OWNER'S ACCESS. Upon reasonable prior notice to Occupant (except in the
event of and emergency, in which event no notice shall be required), Owner shall
be permitted to enter the Licensed Space for the purpose of making repairs,
inspecting the Licensed Space or showing it to prospective tenants or to
mortgagees.
11. CASUALTY AND EMINENT DOMAIN. In the event that a portion of the Licensed
Space or the Building is damaged by fire or other casualty, or is taken by
eminent domain, either party hereto may elect to terminate this Agreement by
giving ten (10) days' written notice to the other. All property within the
Licensed Space shall be at the sole risk of Occupant, and Owner shall not be
responsible for loss or damage occasioned by any cause including the use or
escape of water from any source, bursting of pipes, theft or casualty.
12. DEFAULT. The following events shall constitute Events of Default hereunder:
(1) if Occupant fails to observe or perform any covenant, agreement or
obligation of Occupant hereunder, and such failure continues for three (3) days
after written notice thereof, or (2) if Occupant is declared bankrupt or
insolvent or makes an assignment for the benefit or its creditors.
13. TERMINATION. This Agreement shall terminate on the earlier to occur of the
Expiration Date or upon an Event of Default.
14. SURRENDER. Occupant shall remove all of its effects in such manner as it
determines in its sole discretion from the Licensed Space within 24 hours of
termination, and shall quilt, yield up and deliver to Owner the Licensed Space
in the condition as they were in on the date hereof, reasonable wear and tear
and damage by fire or other casualty or taking only excepted. If Occupant shall
fail to remove its effects from the Licensed Space within 24 hours, Owner shall
be permitted to store all such effects at the direction and at the sole cost and
expense of Occupant. If Occupant shall fail to direct Owner as to such storage,
Owner shall be permitted to store or dispose of all such effects at the sole
cost and expense of Occupant.
15. NOTICES. Any notice from Owner to Occupant relating to the Licensed Space or
to the occupancy thereof, shall be deemed duly served if left at the Licensed
Space addressed to Occupant, or if mailed to the Licensed Space, registered or
certified mail, return receipt requested, postage prepaid addressed to Occupant.
Any notice from Occupant to the Owner relating to the Licensed Space or to the
occupancy thereof, shall be deemed duly served if mailed to the Owner by
registered or certified mail, return receipt requested, postage prepaid, or hand
delivered by recognized commercial delivery service, addressed to the Owner at
the address set forth above or at such address as Owner shall notify Occupant in
writing from time to time.
16. MISCELLANEOUS PROVISIONS. This Agreement shall be governed by the laws of
the Commonwealth of Massachusetts. This Agreement contains the entire agreement
of the parties and may not be modified except by a writing signed by both
parties. Failure of either party to complain of any act or omission on the part
of the other party shall not be deemed to be a waiver by said party of
3
57
any its rights hereunder. If any provision of this Agreement shall to any extent
be invalid, the affect the remainder of this Agreement and the application of
such provisions and other circumstances shall not be affected thereby. The
paragraphs headings used herein are for reference and convenience only and shall
not be deemed to construe, limit or modify the terms hereof.
Executed under seal as of the date first above written.
OWNER: XXXXXXX OMNIBUS VII LIMITED PARTNERSHIP
BY: XXXXXXX VII CORPORATION, ITS GENERAL PARTNER
BY:
-----------------------------------------------
OCCUPANT: FIRST NEW ENGLAND DENTAL CENTERS, INC.
BY:
-----------------------------------------------
4
58
SECRETARY'S CERTIFICATE
-----------------------
I, XXXXXX X. XXXXXXXXX, Secretary of First New England Dental Centers, Inc.
hereby certify that the Corporation is authorized, as User, to enter into a Use
and Occupancy License Agreement between the Corporation and Xxxxxxx Omnibus VII
Limited Partnership, as Owner, whereby the Corporation shall have the use of
approximately 1,700 rentable square feet of space having an address of 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 located on the sixth (6th) floor
of the building situated at and number 85 Devonshire and 000-000 Xxxxxxxxxx
Xxxxxx in Boston, Massachusetts, at the monthly fee of $1,000.00.
I further certify that, XXXXXX XXXXXXX, President of the Corporation, has
authority to execute and deliver to the Owner said Use and Occupancy License
Agreement on behalf of the Corporation.
WITNESS my hand and seal of the Corporation, this 3rd day of April, 1996
/s/ XXXXXX X. XXXXXXXXX
-------------------------------------
, Secretary
(Affix Corporate Seal)
5
59
SECRETARY'S CERTIFICATE
-----------------------
I, Xxxxxx X. Xxxxxxxxx, Secretary of First New England Dental Centers, Inc. (the
"Corporation") hereby certify that the Corporation is authorized as the Occupant
of a Use and Occupancy License Agreement between the Corporation and Xxxxxxx
Omnibus VII Limited Partnership as Owner, whereby the Corporation has a License
to use and occupy 1,700 +/- rentable square feet of space at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, (i) to enter into this _____ Amendment of
the Use and Occupancy License Agreement between the Corporation and Xxxxxxx
Omnibus VII Limited Partnership (the "Amendment"), which amendment is dated
________, and (ii) to perform such acts and enter into such agreements as are
necessary or desirable in connection with the execution and delivery of the
Amendment. The terms of said Amendment include, without limitation, the
following:
1. Extending the term of the Use and Occupancy License Agreement at a monthly
fee of $1,740.00.
I further certify that Xxxxx Xxxxxxx, as President of the Corporation, has
authority to execute and deliver to the Owner under the Use and Occupancy
License Agreement said Amendment on behalf of the Corporation.
WITNESS my hand and the seal of the Corporation, this 24th day of July, 1996.
/s/ XXXXXX X. XXXXXXXXX
-------------------------------------
, Secretary
(Affix Corporate Seal)
2
60
COMMENCEMENT-EXPIRATION CONFIRMATION
REFERENCE is hereby made to a lease ("Lease"), dated as of April 12, 1996 by
and between Xxxxxxx Omnibus VII Limited Partnership, a Massachusetts limited
partnership having an address c/o Berkeley Investments, Inc., 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, as lessor and First New England Dental
Centers, Inc., a New Jersey corporation, as lessee, for the premises consisting
of approximately 3,500 square feet of rentable space having an address of 00
Xxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 located on the second (2nd) floor
of the building (the "Building") situated at and numbered 85 Devonshire and
000-000 Xxxxxxxxxx Xxxxxx in Boston, Massachusetts.
Whereas, the parties desire set out and confirm their agreement as to the
Commencement Date and the Expiration Date of the initial term of the Lease, as
those terms are used therein.
NOW THEREFORE, the parties hereby agree and state as follows:
1. The Commencement Date, as that term is utilized in the Lease is "June 1,
1996" and not "April 1, 1996", as stated in the Lease.
2. The Expiration Date, as that term is utilized in the Lease, is May 31, 2001.
3. Base-Month CPI, as that term is utilized in Article III.2 of the Lease
("Adjusted Rent"), means the CPI published in "April, 996) and not "February,
1996". Moreover, all references to the month of "February" in said Article III.2
shall mean "April".
4. All other terms and provisions of the Lease remain the same and are hereby
ratified by the parties.
EXECUTED under seal this 12th day of July, 1996.
LESSOR: XXXXXXX OMNIBUS VII LIMITED PARTNERSHIP
BY: XXXXXXX VII CORPORATION, ITS GENERAL PARTNER
BY:/s/ Illegible
-----------------------------------------------
LESSEE: FIRST NEW ENGLAND DENTAL CENTER, INC.
BY: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Xxxxx Xxxxxxx, Its President
