Exhibit 10.139
OFFICE LEASE
THIS OFFICE LEASE (this "Lease") is made as of the 31st day of
December, 1996, by and between Continuum Care of Dedham, Inc., having a business
address at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Landlord"), and
CareMatrix Corporation, a Delaware corporation, having a business address at 000
Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Tenant").
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord
the Leased Premises (as defined below). Further, Tenant shall have the right to
use, in common with others entitled thereto, the exterior walkways, parking
areas and driveways, and the hallways, stairways and elevators necessary for
access to the Leased Premises and any and all common facilities, improvements
and services serving the Building, all as more particularly described on the
Site Plan attached hereto as Exhibit A.
1. REFERENCE DATA.
Each of the capitalized terms used in this Lease shall have the meaning
set forth opposite such term below:
1.1 Commencement Date: March 1, 1997.
1.2 Building: The building located at 00 XxxxXxxxxx
Xxxxx xx Xxxxxx, Xxxxxxxxxxxxx,
containing Thirty-Seven Thousand Five
Hundred Eighty-Five (37,585) square feet
of floor space.
1.3 Leased Premises: A portion of the Building at 00
XxxxXxxxxx Xxxxx containing Twelve
Thousand Six Hundred Forty-Three (12,643)
square feet of floor space, located
within the Building on the first floor,
and Six Thousand One Hundred Forty-Nine
(6,149) square feet of floor space,
located within the Building on the second
floor all as shown on Exhibit FP attached
hereto.
1.4 Permitted Use: Medical office, including, without
limitation an ambulatory surgery center
and other general medical office uses,
but only to the extent permitted by
applicable zoning, and no other purpose.
1
1.5 Property: The Building and its common areas and the land on
which the Building is located.
1.6 Landlord's Mailing
Address: 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, III, Esq.
1.7 Tenant's Mailing
Address: 000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
1.8 Broker: None.
1.9 Tenant's Prorata
Share: Fifty (50%) percent.
1.10 Security Deposit: None.
1.11 Guarantor: None.
1.12 Leased Premises
Rentable Area: One Hundred (100%) percent square feet.
1.13 Lease Year: A period of twelve (12) consecutive
calendar months commencing on the
Commencement Date or the first day
of the month in which the
Commencement Date occurs if the
Commencement Date is any day other
than the first day of a month, and
then each consecutive twelve (12)
month period occurring thereafter
during the Term of this Lease.
2. LEASE TERM; EXTENSIONS.
2.1 Term. The term of this Lease shall be for a period of ten (10)
years commencing on the Commencement Date and ending on the last day of the
month immediately prior to the month in which the tenth (l0th) anniversary of
the Commencement Date occurs (the "Term").
2.2 Extension Rights. Provided there is not then an Event of Default
hereunder or at the commencement of the relevant Option Term, Tenant shall have
the right to extend the Term for two (2) five-year extension periods
(collectively, the "Option Terms" and individually, an "Option Term") upon the
following terms and conditions:
2
2.2.1 Tenant must notify Landlord of its election to extend
the Term for each of the Option Terms on or before one hundred eighty (l80) days
prior to (a) the date on which the original Term expires with respect to the
first Option Term and (b) the date on which the first Option Term expires with
respect to the second Option Term.
2.2.2 The annual Base Rent for each of the Option Terms shall
be equal to the Fair Market Rental Value as determined in Exhibit FMRV attached
hereto as determined on the last day of the original Term with respect to the
Base Rent due during the first Option Term and as determined on the last day of
the first Option Term with respect to the Base Rent due during the second option
Term.
2.2.3 All other provisions of this Lease shall also remain in
effect during each of the Option Terms except the right to extend as set forth
in this Section 2.2, it being agreed that there are no further rights of
extension after the second Option Term. Unless expressly stated herein to the
contrary, all references in this Lease to the "Term" shall include the Option
Terms when and if Landlord receives Tenant's notice of election to extend the
Term as herein provided.
3. BASE RENT.
During the Original Term, Tenant shall pay to Landlord rent ("Base
Rent") equal to Five Hundred Sixty-Five Thousand Four Hundred Eighty-Five
($565,485) Dollars per annum.
Payments of Base Rent shall be made by Tenant in equal monthly
installments on the Commencement Date and thereafter on the first day of each
month during the Term in advance, without offset, deduction, demand, or
abatement whatsoever, except as otherwise expressly and specifically provided
herein, in lawful money of the United States. The Base Rent payment for any
fractional month at the commencement, termination or expiration of the Term will
be prorated accordingly.
4. ADDITIONAL RENT.
In addition to the Base Rent, Tenant shall pay to Landlord the
following amounts as additional rent (the "Additional Rent") during the Term:
4.1 Contribution to Taxes. Tenant will pay to Landlord Tenant's Prorata
Share of all Taxes. "Taxes" shall mean the total of all real estate taxes,
charges, and assessments, extraordinary as well as ordinary, levied, imposed, or
assessed for a particular fiscal year during the Term of this Lease by
governmental authorities upon or attributable to the Property, or to any and all
personalty installed in or about the same by Landlord. If Landlord obtains an
abatement of any such Taxes, a proportionate share of
3
such abatement, less the reasonable fees and costs incurred in obtaining the
same, if any, shall be refunded to Tenant. This contribution to Taxes shall be
prorated should this Lease be in effect with respect to only a portion of any
fiscal year to which such Taxes relate. Tenant shall be fully responsible for
any tax assessment or other charge levied by any governmental authority against
any personalty placed upon the Property by Tenant.
4.2 Contribution to Operating Costs. Tenant shall pay to Landlord
Tenant's Prorata Share of the Operating Costs. This contribution to Operating
Costs shall be prorated should this Lease be in effect with respect to only a
portion of any calendar year. For the purposes of this Lease, the term
"Operating Costs" shall mean the items listed in Exhibit OC attached hereto and
made a part hereof.
4.3 Share of Additional Rent. Landlord shall reasonably estimate
Tenant's Prorata Share of Taxes and Operating Costs for the Lease Year in
question and Tenant shall pay with each monthly installment of Base Rent during
that Lease Year, in advance as Additional Rent, an amount equal to one-twelfth
of the total of Tenant's Prorata Share of such Taxes and Operating Costs. If
total payments made by Tenant based upon such estimates exceed actual Taxes and
Operating Costs as finally determined for the Lease Year in question, then any
overpayment shall be credited in full to such payments next coming due under
this Lease. If total payments based upon such estimates are less than the actual
amounts required to pay in full Tenant's Prorata Share, then Tenant shall pay to
Landlord the full amount of the deficiency within thirty (30) days after
receiving written notice from Landlord of the amount of such deficiency. The
Additional Rent payment for any fractional month at the commencement,
termination or expiration of the Term shall be prorated accordingly.
5. INTENTIONALLY DELETED.
6. UTILITIES; TRASH REMOVAL.
6.1 Tenant's Direct Payment to Utility Providers. Tenant shall pay
directly to the relevant provider, as they become due, all bills for utilities
(whether they are used for furnishing heat or other purposes) that are furnished
directly to the Leased Premises. However, with respect to the electricity
provided to the Leased Premises, Tenant shall pay directly to Landlord monthly
(within 10 days after written notice showing the calculation of Tenant's share)
Tenant's share of charges for electricity as established by the sub-meter (the
"Sub-meter") between the main meter (the "Main Meter") for the Building and the
Leased Premises which monitors electricity usage at the Leased Premises.
Tenant's share shall equal the total monthly electric xxxx for the Building
times a fraction of which the denominator is the total kilowatt hours shown on
the Main Meter for the month in question and the
4
numerator of which is the total kilowatt hours shown on the Sub-meter for the
month in question.
6.2 Tenant's Obligations Regarding Additional Utilities. Landlord
warrants and represents to Tenant that the following utilities are presently
available to the Leased Premises: water, sewer, gas, electricity, cable
television and telephone. Landlord shall have no obligation to provide utilities
or equipment other than the utilities and equipment within the Leased Premises
as of the Commencement Date of this Lease. In the event Tenant requires
additional utilities or equipment or utilities of greater capacity, the
installation and maintenance thereof shall be performed at Tenant's sole
obligation and shall be performed at Tenant's sole cost and expense, provided
that such installation shall be subject to the prior written consent of
Landlord.
6.3 Landlord's Right to Install Other Utilities. Landlord shall be
entitled to install in or through the Leased Premises and the Property and
repair, maintain, and replace pipes, conduits, wires, and other utility lines
serving other tenants or portions of the Property provided said installation,
repair, maintenance or replacements do not unreasonably interfere with Tenant's
use of the Leased Premises, other than a reasonable time necessary to complete
such installation, repair, maintenance, or replacement.
6.4 Trash Removal. Trash generated in the ordinary course of business
by Tenant shall be deposited in a dumpster designated by Landlord adjacent to
the Leased Premises and the cost of this dumpster and removal of trash from the
dumpster will be included in Operating Costs. However, it shall be the sole
responsibility of Tenant to segregate any and all hazardous and/or medical waste
from the trash deposited in such dumpster and to have such hazardous and/or
medical waste removed at its own cost and expense from the Leased Premises by a
licensed contractor in accordance with all applicable laws as more fully
detailed in Section 9.6 below.
7. BROKERAGE.
Tenant warrants that it has dealt with no broker in connection with
this Lease other than the Broker or Brokers named in Section 1.8 above and
agrees to defend and indemnify Landlord against any claim, loss, damage, cost or
expense (including, without limitation, reasonable attorney's fees) incurred by
Landlord on account of any breach of such warranty. Landlord warrants that it
has dealt with no broker in connection with the consummation of this Lease
except the Broker or Brokers named in Section 1.8 above, and agrees to indemnify
Tenant against any claim, loss damage, cost or expense (including, without
limitation, reasonable attorney's fees) incurred by Tenant on account of any
breach of such warranty.
8. USE OF LEASED PREMISES; COMPLIANCE WITH LAWS AND FIRE INSURANCE REQUIREMENTS;
HAZARDOUS MATERIALS.
5
8.1 Use of Leased Premises. Tenant acknowledges that no trade or
occupation shall be conducted in the Leased Premises or use made thereof other
than the Permitted Use set forth in Section 1.4 above.
8.2 Compliance with Laws. Tenant, at its sole expense, shall comply
with all laws, rules, orders and regulations of federal, state, county, and
municipal authorities (collectively, "Governmental Regulations"), and with any
direction of any public officers pursuant to law, which impose any duty upon
Landlord or Tenant with respect to the Leased Premises. Conversely, Landlord, at
its sole expense, shall comply with all Governmental Regulations which impose
any duty with respect to the portions of the Building outside of the Leased
Premises, except to the extent that such duty is triggered by the particular use
for which Tenant is utilizing the Leased Premises, in which event the provisions
of the prior sentence shall govern.
8.3 Compliance with Americans with Disabilities Act. Landlord will
complete the Tenant Improvements in compliance with applicable provisions of the
Americans with Disabilities Act and all of the regulations promulgated
thereunder (collectively, the "ADA"). Thereafter, without in any way limiting
the generality of the obligations set forth in Section 8.2 above, Tenant also
shall comply at Tenant's sole cost and expense with all provisions of the ADA as
they apply to Tenant's use and occupancy of the Leased Premises and the
operation of Tenant's business therein and shall be fully responsible for any
modifications or alterations to the Leased Premises or the common areas of the
Property necessary to meet requirements of the ADA which have become applicable
to the Leased Premises or the Property as a result of Tenant's operation of its
business within the Leased Premises.
8.4 No Nuisance or Other Harmful or Disruptive Activity. Tenant shall
not perform any acts or carry on any practices which may injure any part of the
Leased Premises, the Property or common areas, violate any certificate of
occupancy affecting the same, constitute a public or private nuisance or a
menace to other tenants on the Property, produce undue noise, create obnoxious
fumes or other odors or otherwise cause unreasonable interference with other
tenants or occupants of the Property. Further, Tenant agrees not to use the
Leased Premises for any purpose whatsoever which may injure the reputation of
the Leased Premises or the Property.
8.5 Compliance with Fire Insurance Requirements. Tenant shall not
permit any use of the Leased Premises which will make voidable any insurance on
the Property or on the contents of the Building or which shall be contrary to
any law or regulation from time to time established by the New England Fire
Insurance Rating Association or any similar body succeeding to its powers.
Tenant shall on demand reimburse Landlord, and all other tenants to the extent
of insurance carried directly by them, all extra insurance
6
premiums, caused in any way by Tenant's use of the Leased Premises, including,
without limitation, the volume of electricity and electrical equipment used by
Tenant.
8.6 Hazardous Materials. Tenant shall not permit the generation,
storage, transportation, use, emission, disposal release, threat of release or
other escape of any Hazardous Materials on, under or from the Leased Premises or
the Property. Tenant shall not use, generate, store, transport, release, emit or
dispose of Hazardous Materials on, under or from the Leased Premises or the
Property, or dump, flush or in any way introduce Hazardous Materials into sewage
or other waste disposal systems serving the Property (nor shall Tenant permit or
suffer any of the foregoing).
Without limiting any other provision of this Lease, Tenant will
indemnify, defend and hold Landlord harmless from and against all claims, loss,
costs and expenses (including, without limitation, reasonable attorneys' fees
and disbursements, diminution in the value of the Leased Premises or the
Property, costs incurred in connection with any investigation of site conditions
or any clean-up or remedial work required by any federal, state or local
governmental agency) incurred as a result of any breach of Tenant's covenants in
the first paragraph of this Section by Tenant or Tenant's contractors,
licensees, invitees, agents, servants or employees. Without limiting the
foregoing, if the presence of any Hazardous Materials in, on or under the Leased
Premises or the Property caused or permitted by Tenant results in any
contamination of the Leased Premises or the Property, Tenant shall promptly take
all actions at its sole expense as are necessary to return the Leased Premises
or the Property to the condition existing prior to the introduction of any such
Hazardous Material by Tenant, provided that Landlord's approval of such action
shall first be obtained, which approval shall not be unreasonably withheld so
long as such actions would not potentially have any material adverse long-term
or short-term effect on the Leased Premises or the Property.
Landlord will indemnify, defend and hold harmless Tenant from and
against all claims, loss, cost and expenses (including, without limitation,
reasonable attorneys fees and disbursements) incurred by Tenant as a result of
Hazardous Materials existing in, on or under the Property as of the date of this
Lease.
The obligations of Tenant and Landlord in this Section shall survive
the expiration or earlier termination of this Lease and any transfer of title to
the Leased Premises, whether by sale, foreclosure, deed in lieu of foreclosure
or otherwise.
For purposes of this Lease, "Hazardous Materials" means, collectively,
any animal wastes, medical waste, blood, biohazardous materials, hazardous
waste, hazardous substances, pollutants or contaminants, oils, radioactive
materials, radon gas, asbestos in
7
any form or condition, polychlorinated biphenyls, flammable explosives and any
pollutant or contaminant or hazardous, dangerous or toxic chemicals, materials
or substances within the meaning of any applicable federal, state or local law,
regulation, ordinance or requirement relating to or imposing liability or
standards of conduct concerning any such substances or materials on account of
their biological, chemical, radioactive, hazardous or toxic nature, all as now
in effect or hereafter from time to time enacted or amended.
Notwithstanding the foregoing, the term Hazardous Materials as defined
herein shall not include (a) pharmaceuticals and cleaning agents of the types
and in the quantities and concentrations normally stocked by health care
providers in medical office buildings, (b) oil in de minimis amounts typically
associated with the use of certain portions of the Property for driving and
parking motor vehicles or (c) medical wastes generated at the Leased Premises;
provided that the foregoing are used, stored, transported and/or disposed of in
accordance with all applicable federal, state and local statutes, ordinances,
codes, orders, decrees, rules and regulations now or hereafter in effect.
9. RULES AND REGULATIONS; SIGNS.
9.1 Rules and Regulations. Tenant agrees to comply with any and all
rules and regulations for general application to at tenants established by
Landlord for the Property, from time to time, as reasonably determined by
Landlord to be necessary for the orderly and efficient operation of the
Property. However, Landlord shall not be responsible to Tenant for failure to
enforce any of such rules and regulations or for the non-observance or violation
of any of such rules and regulations by any other tenant 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.
9.2 Signs. Landlord and Tenant have agreed upon specifications for
Tenant's sign at the Building as set forth in Exhibit Sign attached hereto.
Tenant shall obtain the prior written consent of Landlord before deviating from
such specifications in any way or erecting any other sign at, on, or about the
Property or the outside of the Building or any exterior door, wall, window, or
portion of the Leased Premises. Any materials or displays approved by Landlord,
shall at all times be maintained by Tenant at its cost and expense in good
condition, good working order and appearance and in compliance with all
applicable laws, codes, ordinances and by-laws; and Tenant hereby
unconditionally and irrevocably authorizes Landlord to enter upon the Leased
Premises at Tenant's expense and without liability or penalty, and to remove any
materials or displays not in accordance with each and all of the foregoing
provisions.
10. MAINTENANCE; REPAIRS.
8
10.1 Tenant's Obligations. Tenant shall, at Tenant's sole cost and
expense, (a) maintain and keep in good repair, good working order and free of
litter and refuse the interior of the Leased Premises and make any and all
repairs and replacements thereto as and when required, ordinary or
extraordinary, foreseeable or unforeseeable, including, but not limited to, the
maintenance, repair and replacement of any and all furnishings, fixtures,
leasehold improvements, exterior entrances, windows, plate glass, electrical
wiring, lighting fixtures, heating or plumbing fixtures, pipes, air conditioning
or heating components contained within the Leased Premises or exclusively
serving the Leased Premises, but specifically excluding any repairs or
replacements required by damage from fire or other casualty (except that Tenant
shall be fully liable and responsible to Landlord for the deductible amount of
any insurance if such damage is caused by Tenant or Tenant's agents, employees
or contractors); (b) keep unclogged and in good repair all drains, traps and
sewer pipes and maintain and leave same in good working order; and (c)
periodically repaint and redecorate the Leased Premises as and when required to
maintain a clean and fresh appearance.
10.2 Landlord's Obligations. Landlord agrees to maintain the structure
the roof, and the building systems (except for portions of those systems
exclusively serving the Leased Premises) of the Building in good working order
and repair, reasonable wear and tear, damage by fire and other casualty only
excepted. Further, if such maintenance is required because of the act or
negligence of Tenant or those for whose conduct Tenant is legally responsible
and such maintenance is not covered by insurance, then Tenant shall be
responsible for such maintenance, and if such maintenance is covered by
insurance, then Tenant shall be fully liable and responsible to Landlord for the
deductible amount of any such insurance.
10.3 Removal of Snow and Ice. Removal of snow and ice from the
sidewalks, driveways and parking areas of the Property shall be the
responsibility of Landlord.
10.4 Tenant's Failure to Make Repairs. If repairs are required to be
made by Tenant pursuant to the terms hereof, Landlord may demand that Tenant
make the same forthwith, and if Tenant refuses or neglects to commence such
repairs and complete the same with reasonable dispatch, after such demand,
Landlord may (but shall not be required to do so) make or cause such repairs to
be made.
11. ALTERATIONS.
11.1 Alterations or Additions by Tenant. Tenant shall not make
structural alterations or additions to the Leased Premises, but may make
non-structural alterations provided that, in cases involving an expenditure in
excess of $10,000, Landlord gives its prior written consent thereto, which
consent shall not be
9
unreasonably withheld or delayed. However, Tenant may not make any alterations
whatsoever to the hallway or any of the walls forming the hallway which runs
through the Leased Premises from the West Street entrance to the Building to the
nursing home facility located within the Building adjacent to the Leased
Premises. All such allowed alterations shall be at Tenant's sole cost and
expense. Tenant shall not permit any mechanics' liens, or similar liens, to
remain upon the Leased Premises for labor and material furnished to Tenant or
claimed to have been furnished to Tenant in connection with work of any
character performed or claimed to have been performed at the direction of Tenant
and shall cause any such lien to be released of record forthwith without cost to
Landlord. Any alterations or improvements made by Tenant shall become the
property of the Landlord at the expiration or earlier termination of the Term.
All alterations or additions made by Tenant shall be performed in a good and
workmanlike manner and in compliance with all the applicable laws, ordinances,
orders, rules, regulations and requirements applicable thereto and shall he
performed only by contractors or mechanics approved by Landlord. All such
contractors and mechanics shall carry adequate liability insurance (which shall
name Landlord and Tenant as an additional insured) and workmen's compensation
insurance and Landlord shall be presented with certificates of same prior to the
commencement of any work.
11.2 Alterations or Additions by Landlord. Landlord hereby reserves the
right at any time to enter upon the Property or the Leased Premises and make
alterations or additions thereto, or to any or all of the common facilities,
improvements or personalty comprising a part thereof, provided such alterations
or additions do not unreasonably interfere with Tenant's use of the Leased
Premises.
12. ASSIGNMENT; SUBLEASING.
Tenant shall not assign this Lease or sublet the whole or any part of
the Leased Premises without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed; it being agreed, however, that
Landlord will give its consent to any sublease or assignment of all or any
portion of the Leased Premises to an affiliate (i.e., an entity in common
ownership with Tenant or wholly owned by Tenant or wholly owning Tenant) of
Tenant for the Permitted Use provided such affiliate of Tenant is not a
competitor of Landlord or any affiliate of Landlord. Notwithstanding such
consent, Tenant shall remain liable to Landlord for the payment of all Base
Rent, Additional Rent, any other charges due hereunder, and for the full
performance of the covenants and conditions of this Lease. Landlord's consent to
any such transfer, assignment or sublease will not be deemed a consent to any
subsequent transfer, assignment or sublease. In the event of a default under the
terms of this Lease, if the Leased Premises or any part thereof are then
assigned or sublet, Landlord, in addition to any other remedies herein provided
or provided by law, may at its option collect directly from assignee or
subtenant all
10
rents becoming due to Tenant under such assignment or sublease and apply such
rent against any sums due it by Tenant hereunder, and no such collection shall
be construed to constitute a novation or a release of Tenant from the further
performance of its obligations hereunder. For purposes of this Lease, (a) any
assignment, transfer or conveyance of any sort of 25% or more of the stock or
other beneficial ownership of Tenant and (b) any merger or consolidation of
Tenant with any other entity shall constitute an "assignment" which is subject
to Landlord's prior reasonable consent under this Section 12.
13. SUBORDINATION TO MORTGAGES: ESTOPPEL CERTIFICATES.
13.1 Subordination. This Lease shall be subject and subordinate to any
and all mortgages, deeds of trust and other instruments in the nature of a
mortgage, easements or rights-of-way (provided no such easement or right of way
shall unreasonably interfere with Tenant's use of the Leased Premises, Tenant's
parking rights or any other rights appurtenant to the Leased Premises under the
terms of this Lease) now or at a time hereafter, constituting a lien or
encumbrance on the Property and Tenant shall, when requested, promptly execute
and deliver such written instruments as shall be necessary to show the
subordination of this Lease to such mortgages, deeds of trust or other such
instruments. Failure to execute any such instruments within twenty (20) days
after request shall constitute a default hereunder. It is the understanding of
the parties hereto that Landlord shall obtain and deliver a non-disturbance
agreement from the current mortgagee of the Premises as of the date of this
Lease and shall use its best efforts to secure a non-disturbance agreement with
any and all subsequent lenders requiring such subordination from Tenant or
grantees under such other instruments, but the effectiveness of the other
provisions of this Section 13.1 shall not be conditioned in any manner upon the
actual receipt of a non-disturbance agreement from such subsequent lenders.
13.2 Estoppel Certificates. Tenant shall, within ten (10) days after
request from Landlord, deliver to any proposed mortgagee or purchaser of all or
any part of the Property, in recordable form, a certificate certifying and
covenanting any and all information requested, including, but not limited to,
the following: (a) the date of this Lease, the date when the Term of this Lease
commenced (the "Commencement Date"), the date of the expiration of the Term, and
the date when Base Rent and Additional Rent commenced to accrue hereunder; (b)
that this Lease is unmodified, not amended, and in full force and effect; or, if
there have been any amendments or modifications, that the Lease is in full force
and effect as so amended or modified and stating the amendments or modifications
and the dates thereof; (c) whether or not there are then existing any setoffs or
defenses against the enforcement of any of the terms and/or conditions of this
Lease and any amendments or modifications hereof on the part of Tenant to be
performed, and, if so, specifying the same; (d) the dates, if any,
11
to which the Base Rent, the Additional Rent and other sums on Tenant's part to
be paid hereunder have been paid and/or paid in advance; and (e) that Tenant has
accepted the Leased Premises, the Tenant Improvements as being complete in
accordance with the Lease, or Tenant will specify any particular items which
Tenant has not accepted. If Landlord shall submit to Tenant a proposed
instrument containing any of the foregoing information, then, if Tenant shall
fail to respond to Landlord's request for confirmation of the information set
forth therein within twenty (20) days after Landlord's request, any information
contained in such proposed instrument shall be deemed to be true, and Tenant
shall be deemed to have waived any rights accruing by reason of any inaccuracy
in such proposed instrument. Further, Tenant's failure or refusal to execute and
deliver such certificate within such (20) day period shall constitute a default
under this Lease.
14. LANDLORD'S ACCESS.
Landlord or agents of Landlord, the holder of any mortgage encumbering
the Property and/or its agents may, upon twenty-four (24) hours prior notice to
Tenant (or at any time without notice in the case of emergency), enter the
Leased Premises to (a) inspect the same, (b) remove placards and signs affixed
thereto and not approved as herein provided, (c) make alterations as provided in
Section 11.2 above or repairs, (d) show the Leased Premises to prospective
lenders at any time and to prospective tenants within one year prior to the
then-scheduled expiration of the Term, and (e) at any time within six (6) months
before the expiration of the Term, affix to any suitable part of the Leased
Premises a notice that the Leased Premises are available for lease and keep the
same so affixed without hindrance or molestation.
15. INDEMNIFICATION AND LIABILITY.
15.1 Damage to Property. Tenant shall and hereby agrees to save
Landlord harmless from all loss and damage to property occurring within the
Leased Premises occasioned by the use or escape of water or by the bursting of
pipes. All personal property or improvements of Tenant at or about the Leased
Premises shall be installed, used, or enjoyed at the sole risk of Tenant, and
Tenant shall defend, indemnify and hold Landlord harmless from and against any
and all claims and/or causes of action pertaining to or arising out of damage to
the same, including but not limited to subrogation claims by Tenant's insurance
carrier, but excepting such claims and/or causes of action resulting from the
actual negligence and/or willful and wanton conduct of Landlord.
15.2 Indemnity Against Liability. In addition, and without limiting any
other provision of this Lease, Tenant shall and hereby agrees to indemnify and
hold Landlord harmless, to the fullest extent permitted by law, from and against
any and all claims, actions, loss, damage, liability and expense (including,
without limitation, attorney's fees and related legal costs incurred by
12
Landlord) in connection with loss of life, personal injury and/or damage to
property arising out of or resulting from (a) any occurrence in, upon or at the
Leased Premises, (b) the occupancy or use of the Leased Premises or any part
thereof by Tenant, its officers, agents, employees, subtenants, licensees,
concessionaires and/or invitees, or (c) on or about the Property if caused
wholly or in part by any act or omission of Tenant, its officers, agents,
employees, subtenants, licensees, concessionaires, invitees and/or others
occupying space in the Leased Premises. However, Tenant shall have no obligation
to indemnify Landlord for that portion of liability which is imposed upon
Landlord as a result of any comparative negligence by Landlord (or its agents,
employees or contractors) which forms part of the basis for any such claim,
action, loss, damage, liability or expense; but only the portion of the claim,
action, loss, damage, liability xxx expense actually attributable to Landlords'
comparative negligence shall be exempted from Tenant's indemnification
obligations hereunder.
16. INSURANCE.
16.1 Insurance to be Maintained by Tenant. At its own cost and expense,
Tenant shall obtain and maintain throughout the Term of this Lease the following
insurance coverage: (a) comprehensive general public liability insurance
covering claims for injury to persons or property occurring in or about the
Leased Premises or the Property, or arising out of ownership, maintenance, use,
or occupancy thereof by the Tenant, in the amount of Three Million Dollars
($3,000,000.00), with property damage insurance with limits of Five Hundred
Thousand Dollars ($500,000.00); (b) all risk hazard insurance including and not
limited to fire, extended coverage, vandalism and malicious mischief insurance,
covering any and all of the Tenant's equipment, trade fixtures, tools,
inventory, and personal property in, at, or about the Leased Premises, in the
full amount of the replacement cost of any and all of the same, and also
including fire legal liability coverage as to the portion of the Building of
which the Leased Premises are a part; (c) Worker's Compensation and all other
insurance coverages for employees, agents, servants, and others at or about the
Leased Premises in compliance with and as required by any and all applicable
governmental regulations and statutes; (d) if and when the Premises include
plate glass, plate glass insurance for the benefit of Landlord in the amount of
replacement cost thereof; and [(e) medical malpractice insurance in the amount
of Three Million Dollars ($3,000,000.00) per occurrence.] Landlord may from time
to time require Tenant to maintain other insurance coverage or may increase the
amount of the foregoing insurance to be maintained by Tenant so as to provide
insurance coverage in forms and amounts consistent with the extent of coverage
maintained by similar tenants in similar buildings located in the vicinity of
the Leased Premises.
16.2 Other Insurance Requirements; Waiver of Subrogation. All such
insurance procured by Tenant as provided herein shall be
13
in responsible companies qualified to do business in Massachusetts and in good
standing therein, insuring Landlord and Landlord's mortgagee (if any) as well as
Tenant against injury to persons or damage to property as herein provided.
Tenant shall deposit with Landlord certificates for such insurance at or prior
to the Commencement Date, and thereafter within thirty (30) days prior to the
expiration of any such policies. All such insurance certificates shall provide
that such policies shall not be cancelled or modified without at least ten (10)
days prior written notice to each insured named therein. Insofar as, and to the
extent that, the following provision may be effective without invalidating or
making it impossible to secure insurance coverage obtainable from responsible
insurance companies doing business in the locality in which the Property is
located (even though an extra premium may result therefrom), Landlord and Tenant
mutually agree that, with respect to any hazard, the loss from which is covered
by insurance then being carried by them, respectively, the party carrying such
insurance and suffering such loss releases the other of and from any and all
claims with respect to such loss to the extent of the insurance proceeds paid
with respect thereto; and they further mutually agree that their respective
insurance companies shall have no right of subrogation against the other on
account thereof.
16.3 Insurance to be Maintained by Landlord. Landlord shall maintain
property and casualty insurance with respect to the Building and other
improvements constituting the Property in such amounts as are required by the
first mortgage lender for the Property, or in the absence of a first mortgage
lender, in amounts which are comparable to those maintained by other reasonably
prudent property owners of facilities of the type of character of the Property.
17. FIRE: CASUALTY; EMINENT DOMAIN.
17.1 Damage by Casualty. Should a substantial portion of the Leased
Premises, or of the Property, be substantially damaged by fire or other
casualty, Landlord may elect to terminate this Lease. When such fire or casualty
renders the Leased Premises substantially unsuitable for its intended use, a
just and proportionate abatement of rent shall be made. Further, within thirty
(30) days after such fire or other casualty, Landlord shall give written notice
to Tenant with respect to whether or not Landlord will restore the Leased
Premises. Tenant may elect to terminate this Lease if either (a) Landlord
notifies Tenant that Landlord has elected not to restore the Leased Premises, or
(b) Landlord elects to restore but fails to restore the Leased Premises to a
condition substantially suitable for its intended use within two hundred seventy
(270) days after such fire or casualty. However, Tenant's failure to give such
notice of termination within five (5) days after the date on which the right to
terminate ripens under either (a) or (b) above shall constitute a waiver of such
right by Tenant. Landlord will seek to have the first mortgagee of
14
the Property, if any, provide for application of hazard insurance loss proceeds
to the repair or reconstruction of the Leased Premises upon any hazard loss.
Subject to the mortgagee (if any) of the Property making the hazard loss
insurance proceeds available for such restoration and to Landlord's receipt of
such proceeds for that purpose, if Landlord elects to repair, reconstruct, or
cause to be repaired or reconstructed, such damage or destruction, Landlord
shall not be required to expend, in connection with such repair or
reconstruction, any amount exceeding the amount of casualty insurance proceeds
actually received by Landlord. Notwithstanding the foregoing, in the event such
mortgagee shall not make the insurance Loss proceeds available for repair or
restoration, Landlord shall not be required to repair or reconstruct the Leased
Premises and shall notify Tenant within thirty (30) days next following such
hazard loss, of its election in this respect and thereupon, Tenant shall have
the termination rights described above in this Section.
17.2 "Complete" Taking of Property or Leased Premises. If, prior to
the Commencement Date or otherwise, the Property shall be taken in its entirety
under any condemnation or eminent domain proceedings (each such occurrence being
hereinafter referred to as a "Taking") by any governmental authority (the
"Taking Authority") during the Term hereof, or in the event twenty-five (25%)
percent or more of the Leased Premises is taken in any such proceedings and the
remaining portion shall not be suitable or adequate (in the reasonable opinion
of Tenant exercised in good faith) for the uses described in this Lease, and
Tenant notifies Landlord of such determination within thirty (30) days next
following the taking of physical possession of such portion of the Leased
Premises by the Taking Authority or the date upon which Tenant receives written
notice that title has vested in the Taking Authority, whichever is first to
occur, then in any such event this Lease and the Term hereof shall terminate as
of the date physical possession of the Property (or a portion thereof) is taken
by the Taking Authority, and Tenant shall be liable for the payment of Base
Rent, Additional Rent and all other charges due from Tenant hereunder, and
performance of the other terms and conditions of this Lease on Tenant's part to
be performed only up to date of such termination, and any Base Rent paid in
advance for periods following such date shall be apportioned and promptly
refunded to Tenant.
17.3 "Partial" Taking of Property or Leased Premises. If less than the
entire Property, or less than twenty-five (25%) percent of the Leased Premises,
shall be acquired or taken by condemnation or eminent domain as aforesaid, and
the mortgagee of the Property shall not make the proceeds of any awards or
damages payable as to the Taking available for restoration and repair of the
balance of the Building, or Landlord shall determine in its reasonable
discretion that the restoration and repair of the balance of the Building shall
be impracticable; or in the event the Taking occurs within the last eighteen
(18) months of the initial Term (or of a renewal term, if any), Landlord shall
be entitled to
15
terminate this Lease without liability by reason of such Taking. If Landlord
does not so terminate this Lease, this Lease shall not cease and terminate and
Landlord shall rebuild and restore the Leased Premises as nearly as possible to
the condition existing next preceding such Taking, with due allowance for the
portion so taken; further, Tenant shall promptly restore or repair any
improvements made by it in the Leased Premises to the extent proceeds from such
awards are made available to Tenant for such purpose and this Lease shall be and
remain in full force and effect and be unaffected by, the Taking, except that
from the date possession of the taken portion of the Leased Premises is acquired
by the Taking Authority, the Base Rent payable under this Lease shall be
diminished by a percentage equal to the percentage of the Leased Premises so
taken. The restoration or repair work to be done by Tenant shall be done subject
to any and all terms and conditions elsewhere set forth in this Lease governing
alterations or work on Tenant's part to be performed.
17.4 Miscellaneous Provisions Regarding Casualty or Taking.
17.4.1 In the event this Lease is terminated or terminates by
reason of a Taking or a Casualty, the provisions of the Lease applicable upon
expiration of the Lease shall govern the parties.
17.4.2 Landlord will seek to have any mortgagee of the
Building provide for application of the proceeds of any Taking awards to
restoration, repair, and reconstruction of the portion of such property
remaining after the Taking. Notwithstanding the amount of land, building, or
improvements taken by condemnation or eminent domain or the termination or
continuance of this Lease with respect thereto, Tenant shall not participate or
share in any recovery, award, or damages payable or paid as to such Taking, nor
have or assert any right, claim, or cause of action against Landlord, the fee
owner, or mortgagee of the Property or, except as expressly provided in Section
17.4.3 below, the Taking Authority whether for the loss of, or diminution in
value of, the unexpired Term of this Lease, or as to the Taking of any such
land, building, and/or improvements or otherwise) and Tenant for itself and its
successors and assigns hereby waives, surrenders, and releases to Landlord any
and all claims or rights to claim or receive all or any portion of any and all
recovery, awards, and/or damages as to such Taking.
17.4.3 If permitted by statute, Tenant may assert a separate
and independent claim for and recover from the Taking Authority, but not from
Landlord, any compensation as may be separately awarded or recoverable by Tenant
in its own name and right for any damage to Tenant's portable fixtures and
equipment, or on account of any expenses which it shall incur in removing its
merchandise, furnishings, and equipment from the Leased Premises, but in no
event shall any such claims or recoveries be claims or asserted in the event the
same would, may, or shall diminish,
16
offset, or bar any damages, recovery, or award to Landlord or the fee owner of
the Leased Premises.
.
18. DEFAULT; REMEDIES; BANKRUPTCY.
18.1 Events of Default. Each of the following shall be an event of
default ("Event of Default") under this Lease:
18.1.1 Tenant shall default in the payment of any installment
of rent or other sum herein specified and such default shall continue for ten
(10) days;
18.1.2 Tenant shall fail to maintain insurance as required by
this Lease;
18.1.3 Tenant shall default in the observance or performance
of any other of Tenant's covenants, agreements, or obligations hereunder and
such default shall not be cured within thirty (30) days after written notice
thereof, or if such default is of a nature that it cannot be reasonably cured
within such thirty (30) day period, Tenant shall not have commenced to cure such
default within said thirty (30) day period and diligently proceed to completion
of said cure within ninety (90) days after written notice thereof, provided such
extended period without a completed cure will not have a material adverse effect
on the value of the Property or the Leased Premises or expose Landlord to any
liability; provided however, that Landlord shall not be required to give more
than two (2) notices during any consecutive twenty-four (24) month period with
regard to Tenant's failure to perform its obligations under a particular Section
of this Lease (a "Previously Defaulted Provision") and in the event that
Landlord has already given two (2) such notices during any consecutive
twenty-four (24) month period, any subsequent failure of Tenant during such
twenty-four (24) month period to fully and punctually observe such Previously
Defaulted Provision shall immediately constitute a default even though no notice
has been given; or
18.1.4 Tenant or any other party shall file a petition or
application under any state or federal bankruptcy, insolvency or debtor's relief
law relating to Tenant or Tenant shall consent to an assignment or composition
for the benefit of Tenant's creditors or consent to the appointment of a
receiver for any of Tenant's property; provided, however, that if such petition,
application or receivership proceedings are instituted against Tenant by a third
party, there shall be no default hereunder unless the same shall remain
undischarged for a period of greater than sixty (60) days from the filing of
such petition or application or the commencement of the receivership
proceedings, as the case may be.
18.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
subject to Section 18.8 hereof, Landlord shall have the following rights and
remedies:
17
18.2.1 Landlord shall have the right at its election, at any
time thereafter, to give Tenant written notice of Landlord's election to
terminate this Lease on a date specified in such notice. Upon the giving of such
notice, this Lease and the estate hereby granted shall expire and terminate on
such date as fully and completely and with the same effect as if such date were
the date hereinbefore fixed for the expiration of the Term, and all rights of
Tenant hereunder shall expire and terminate, but Tenant shall remain liable as
hereinafter provided. Further, Tenant hereby expressly waives any rights of
redemption it may have under M.G.L. c. 186, [sec] 11 or any other applicable
statute now or hereafter in effect.
18.2.2 Landlord shall have the immediate right, whether or
not this Lease shall have been terminated pursuant to Section 18.2.1, to
re-enter and repossess the Leased Premises or any part thereof in the name of
the whole and repossess the same as of its former estate by force, summary
proceedings, ejectment or otherwise and the right to remove all persons and
property therefrom. Landlord shall be under no liability for or by reason of any
such entry, repossession or removal. No such re-entry or taking of possession of
the Leased Premises by Landlord shall be deemed to waive or prejudice any
remedies provided to Landlord hereunder, nor be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such election
be given to Tenant pursuant to Section 19 or unless the termination of this
Lease be decreed by a court of competent jurisdiction.
18.2.3 At any time or from time to time after the repossession
of the Leased Premises or any part thereof pursuant to Section 18.2.2, whether
or not this Lease shall have been terminated pursuant to Section 18.2.1,
Landlord may relet the Leased Premises or any part thereof for the account of
Tenant, in the name of Tenant or Landlord or otherwise, without notice to
Tenant, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Term) and on such
conditions (which may include free rent and any other concessions) and for such
uses as Landlord, in its absolute discretion, may determine; and Landlord may
collect and receive any rents payable by reason of such reletting. Landlord
shall not be responsible or liable for any failure to relet or to collect any
rent due upon such reletting.
18.2.4 In the event of any termination of this Lease or
repossession of the Leased Premises or any part thereof by reason of the
occurrence of an Event of Default, Tenant will pay to Landlord the Base Rent,
and any Additional Rent and other sums required to be paid by Tenant for the
period from the Commencement Date through and including the date of such
termination or repossession.
18.2.5 At any time after any such termination of this Lease
or repossession of the Leased Premises or any part thereof by
18
reason of the occurrence of an Event of Default, Landlord shall be entitled to
recover from Tenant, and Tenant will pay to Landlord on demand, as and for
liquidated and agreed final damages for Tenant's default and in lieu of all
current damages beyond the date of such demand (it being agreed that it would be
impracticable or extremely difficult to fix the actual damages), an amount equal
to the present value of the excess of (a) the Base Rent, any Additional Rent and
other sums which would be payable under this Lease from the date of such demand
(or, if it be earlier, the date to which Tenant shall have satisfied in full its
obligations under Section 18.2.4 to pay current damages) for what would be the
then unexpired Term in the absence of such termination or repossession plus
Landlord's estimate of the aggregate expenses of reletting the Leased Premises,
over (b) the then net fair rental value of the Leased Premises for the same
period (after deducting from such fair rental value the time needed to relet the
Leased Premises in the amount and concessions which would normally be given to a
new tenant). Fair rental value shall be established by reference to the terms
and conditions upon which Landlord relets the Leased Premises if such reletting
is accomplished within a reasonable period of time after such termination or
repossession and otherwise established on the basis of Landlord's estimates and
assumptions of fact regarding market and other relevant circumstances, which
shall govern unless shown to be clearly erroneous.
18.3 Landlord's Cure Rights. If Tenant shall default in the observance
or performance of any conditions or covenants on Tenant's part to be observed or
performed under or by virtue of any of the provisions of this Lease, Landlord,
without being under any obligation to do so and without thereby waiving such
default, may remedy such default for the account and at the expense of Tenant.
18.4 Tenant's Obligation to Reimburse Landlord. If Landlord makes any
expenditures (pursuant to Section 18.3 above or otherwise) or incurs any
obligations for the payment of money in connection with any failure of Tenant to
perform fully all of its obligations under this Lease, such sums paid or
obligations incurred (including but not limited to, reasonable attorney's fees
and court costs in instituting, prosecuting or defending any action or
proceeding), with interest at the rate of one and one half percent (1-1/2%) per
month and costs, shall upon demand be paid to Landlord by Tenant as Additional
Rent.
18.5 No Waiver. Landlord's failure to take action against Tenant with
respect to any default in Tenant's performance of its obligations hereunder
shall not, under any circumstances, constitute a waiver of any of Landlord's
rights under this Lease and, further, no waiver of any of the provisions of this
Lease shall be effective unless given in writing nor shall any waiver be
construed as a waiver of any of the other provisions hereof or as a waiver of
the same provisions for any subsequent time.
19
18.6 Acceptance of Late Payments. No payment by Tenant, or acceptance
by Landlord, of a lesser amount than then due from Tenant to Landlord shall be
treated otherwise than as a payment on account regardless of any letter
accompanying such check or legend entered upon such check. Further, no
acceptance of any payment by Landlord from Tenant shall in any way constitute a
waiver of any default then existing or which would exist with the proper giving
of notice.
18.7 Interest on Late Payments. If Tenant shall fail to pay, when the
same is due and payable, any Base Rent, or Additional Rent or any other charges
or payments required hereunder (excluding the payments described in Section 18.4
above), such unpaid amounts shall bear interest from ten (10) days after the due
date thereof to the date of payment at the annual rate of interest of twelve
percent (12%) per annum, but in no event higher than the maximum rate permitted
by law; and, in addition, Tenant shall pay Landlord a late charge for any Base
Rent, any Additional Rent or any other charges or payments due hereunder which
is paid more than ten (10) days after its due date equal to five percent (5%) of
such payment.
18.8 Remedies Cumulative. Any and all remedies set forth in this Lease
(a) shall be in addition to any and all other remedies Landlord may have at law
or in equity, (b) shall be cumulative, and (c) may be pursued successively or
concurrently as Landlord may elect. The exercise of any remedy by Landlord shall
not be deemed an election of remedies or preclude Landlord from exercising any
other remedies in the future.
18.9 Landlord's Rights in Tenant's Bankruptcy. If this Lease is
assigned to any person or entity pursuant to the provisions of the Bankruptcy
Code, 11 U.S.C. 101 et seq. as now existing or hereafter amended (the
"Bankruptcy Code"), any and all monies or other considerations payable or
otherwise to be delivered in connection with such assignment shall be paid and
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of Landlord and be
promptly paid to or turned over to the Landlord. Notwithstanding anything in
this Lease to the contrary, all amounts payable by Tenant to or on behalf of
Landlord under this Lease, whether or not expressly denominated as rent,
including, without limitation, the Base Rent and Additional Rent specified
herein, shall constitute rent for the purpose of Section 502(b)(7) of the
Bankruptcy Code.
If Tenant assumes this Lease and proposes to assign the same pursuant
to the provisions of the Bankruptcy Code to any person or entity who shall have
made a bona fide offer to accept an assignment of this Lease on terms acceptable
to Tenant, then notice of such proposed assignment, setting forth (a) the name
and address
20
of such person; (b) all of the terms and conditions of such offer, and (c) the
adequate assurance to be provided Landlord to assure such person's future
performance under the Lease, including without limitation, the assurance
referred to in Section 365(b)(3) of the Bankruptcy Code, shall be given to
Landlord by the Tenant no later than twenty (20) days after receipt by the
Tenant, but in any event no later than ten (10) days prior to the date that the
Tenant shall make application to a court of competent jurisdiction for authority
and application to enter into such assignment and assumption, and Landlord shall
thereupon have the prior right and option, to be exercised by notice to the
Tenant given at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer made
by such person, less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment of this Lease. Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code shall be deemed without further act or deed to have assumed
on and after the date of such assignment all of the obligations arising under
this Lease. Any such assignee shall upon demand execute and deliver to Landlord
an instrument confirming such assumption.
19. NOTICES.
Any and all notices, demands, consents or approvals required hereunder
shall be given in writing in accordance with this Section 19. Any notice from
Landlord to Tenant shall be deemed duly served, if left at the Leased Premises
addressed to Tenant or mailed to Tenant's Mailing Address (as defined in Section
1.7 above) by overnight courier, or by registered or certified mail, return
receipt requested, postage prepaid. Any notice from Tenant to Landlord shall be
deemed duly served, if mailed to Landlord by overnight courier, or by registered
or certified mail, return receipt requested, postage prepaid, addressed to
Landlord at Landlord's Mailing Address (as defined in Section 1.6 above) or at
such other address as Landlord may from time to time advise in writing. All rent
payments shall be paid and sent to Landlord at Landlord's Mailing Address.
Any notice from Tenant to Landlord shall concurrently be given by
Tenant to the holder of any mortgage encumbering the Property. Any notice from
Landlord to Tenant shall concurrently be given by Landlord to the holder of any
mortgage encumbering the Property.
20. SURRENDER: HOLDING OVER.
20.1 Surrender of Leased Premise. Tenant shall, at the expiration or
other termination of the Term, (a) remove all of Tenant's goods and effects from
the Leased Premises (including, without hereby limiting the generality of the
foregoing, all signs and lettering affixed or painted by Tenant either inside or
outside the Leased Premises), and (b) deliver to Landlord the Leased
21
Premises, in broom clean condition, and otherwise in the same condition as
existed as of the Commencement Date (normal wear and tear and damage by fire or
other casualty excepted), all keys, locks thereto, other fixtures connected
therewith and all alterations and additions made to or upon the Leased Premises.
Upon Tenant's failure to comply with the preceding sentence, Landlord is hereby
authorized, without liability to Tenant for loss or damage thereto, and at the
sole risk of Tenant, to remove and store any of such property at Tenant's
expense, or to retain same under Landlord's control or to sell, at public or
private sale, without notice, any or all of such property not so removed and to
apply the net proceeds of such sale to the payment of any sum due hereunder, or
to destroy such property.
20.2 Holding Over. If Tenant remains in Possession of the Leased
Premises or any part thereof after the expiration or earlier termination of the
Term of this Lease, Tenant shall be deemed to be in use and Occupancy of the
Leased Premises as a month-to-month tenant at a rate of monthly rent one and
one-half (1-1/2) times the rate of the total monthly installment of Base Rent
then in effect upon the date of expiration or termination of this Lease and
subject to the same terms and conditions (including, without limitation,
provisions concerning the payment of all other charges hereunder) as those set
forth in this Lease other than as to the length of Term. However, nothing in
this Lease provision shall be deemed to extend the Term beyond that set forth in
Section 2 hereof, nor grant any right to Tenant or any other person to use,
occupy, or remain in Possession of all or any part of the Leased Premises beyond
the expiration or earlier termination of the Term of this Lease.
21. LANDLORD'S LIABILITY.
21.1 Limited Recourse. Tenant specifically agrees to look solely to
Landlord's then equity interest in the Property at the time owned, for recovery
of any judgment from Landlord; it being specifically agreed that Landlord
(original or successor) shall never be personally liable for any such judgment,
or for the payment of any monetary obligation to Tenant. The provision contained
in the foregoing sentence is not intended to, and shall not, limit any right
that Tenant might otherwise have to obtain injunctive relief against Landlord or
Landlord's successors in interest, or to take any action not involving the
personal liability of Landlord (original or, successor) to respond in monetary
damages from Landlord's assets other than Landlord's equity interest in the
Property.
21.2 Interruption of Services and Utilities. With respect to services
or utilities, if any, to be furnished by Landlord to Tenant under this Lease,
Landlord shall in no event be liable for failure to furnish the same when
Landlord is prevented from doing so (a) by strike, lockout, breakdown, accident,
order or regulation of or by an governmental authority, or failure of supply,
(b) by
22
reason of the making of repairs or alterations which Landlord is required or is
permitted by this Lease or by law to make or in good xxxxx xxxxx necessary, (c)
by inability after the exercise of reasonable diligence to obtain supplies,
parts or employees necessary to furnish such services, or because of war or
other emergency, (d) by any other cause beyond Landlord's reasonable control
(but not including any lack of available funds on the part of the Landlord), or
(e) by any cause due to any act or neglect of Tenant or Tenant's servants,
agents, employees, licensees or any person's claiming by, through or under
Tenant. Notwithstanding anything to the contrary herein, if any material
services or utilities supplied by Landlord are interrupted then Landlord shall
use its best efforts to cause the restoration of such services and if such
interruption lasts for more than forty-eight (48) hours, then Base Rent shall be
suitably abated to reflect the diminution in value of the Leased Premises
arising from the lack of the utility service in question.
21.3 No Consequential Damages. In no event shall either Landlord or
Tenant ever be liable to the other for any loss of business or any other
indirect or consequential damages suffered by such other party as a result of
the defaulting party's breach of its obligations under this Lease.
21.4 Liability after Conveyance of Property. The term "Landlord", as
used herein, shall mean and refer to the owner of the fee estate in the Property
whosoever such owner may be from time to time or to the person or entity named
as Landlord above or its successors or assigns, as the case may be; and upon any
conveyance or transfer of the interest of such person or entity as Landlord,
such person or entity shall be thereupon released and discharged from any and
all liability under this Lease or otherwise to Tenant and any and all others
whomsoever except for breaches of this Lease occurring prior to such transfer.
22. MISCELLANEOUS.
22.1 Governing Law. This Lease shall be governed by the law of the
Commonwealth of Massachusetts and shall be deemed to have been made, executed,
delivered and accepted by the respective parties in that state.
22.2 Partial Invalidity. If any term or provision of this Lease, or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law. It is the intention of the parties hereto that if any
provision of this Lease is capable of two constructions, one of which would
render the provision valid, then the provision shall have the meaning which
renders it valid.
23
22.3 Captions. The captions of this Lease are for convenience and
reference only and shall not be deemed or construed to bind, modify, increase,
or decrease the terms and conditions of this Lease, or any interpretation or
construction thereof.
22.4 Successors and Assigns. The terms and conditions in this Lease
shall apply to and be binding upon the parties herein and their respective
successors and assigns, except as expressly otherwise provided.
22.5 Recording of Lease. Tenant shall not record this Lease. However,
at the request of either party, Landlord and Tenant shall execute, acknowledge,
deliver, exchange, and record at the requestor's expense a Notice of Lease or
other short-form instrument permitted under applicable state law and prepared by
Landlord.
22.6 Entire Agreement. This Lease and any and all exhibits and riders
attached hereto and made a part of this Lease constitute the entire agreement of
the parties concerning this Lease, and any and all other or prior agreements,
representations, or warranties are hereby terminated, cancelled, and agreed to
be void and of no force or effect.
22.7 Amendments. No change, amendment, deletion, or addition to this
Lease shall be effective unless in writing and signed by the parties.
22.8 Quiet Enjoyment. So long as Tenant is not in default of any of
its obligations under this Lease, beyond any applicable grace period, Tenant
shall peaceably and quietly have, hold and enjoy the Leased Premises free of any
claims by, through or under Landlord.
22.9 No Partnership. Nothing in this Lease shall create or be
construed to create a partnership between Tenant and Landlord, or make them
joint venturers, or bind or make Landlord in any way liable or responsible for
any acts, omissions, negligence, debts or obligations of Tenant.
22.10 Time of Essence. Time is of the essence in this Lease.
22.11 Landlord's Consent In the event that Landlord's consent is
required by the terms hereof for any purpose whatsoever, it is understood and
agreed that (a) Landlord's consent shall be subject to the consent of the holder
of any mortgage encumbering the Property but only to such extent such consent is
required under the applicable financing documents (which consent Landlord shall
seek to obtain) and (b) notwithstanding anything to the contrary set forth
herein, it shall not be deemed unreasonable for Landlord to withhold its consent
in any given circumstance based upon
24
Landlord's inability to obtain any required consent from the holder of any
mortgage encumbering the Property.
22.12 Meditrust Loan Documents. Reference is made to the loans in the
aggregate amount of $18,720,000 made by Meditrust Mortgage Investments, Inc. to
Continuum Care of Dedham, Inc. (the "Loans"). In the event of any conflict
between the provisions hereof and the provisions of any of the documents
evidencing and/or securing the Loans (collectively, the "Meditrust Loan
Documents"), the Meditrust Loan Documents shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed and delivered as a sealed instrument by their respective duly
authorized officers as of the day and year first written above.
LANDLORD: TENANT:
CONTINUUM CARE OF DEDHAM. INC. CAREMATRIX CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Xxxxx X. Leaky Jr.
Name: Xxxxxxxxx X. Xxxxxxxx Name: Xxxxx X. Leaky Jr.
Title: VP Title: EVP
25
List of Exhibits:
Exhibit A - Site Plan
Exhibit FP - Floor Plan of Leaned Premises
Exhibit OC - Operating Costs
Exhibit FMRV - Calculation of Fair Market Rental Value
Exhibit Sign - Sign Specifications
26
EXHIBIT A
SITE PLAN
27
Site Plan of Proposed Parking for Nursing Home, Medical Office & Surgery Center
EXHIBIT FP
FLOOR PLAN OF LEASED PREMISES
28
Demised Premises Dedham Ambulatory Surgical Center
Site Plan
Demised Premises CareMatrix
Site Plan
EXHIBIT OC
OPERATING COSTS
"Operating Costs" shall mean:
(a) all costs and expenses paid or incurred by Landlord in
operating, managing, equipping, insuring, controlling traffic, policing (if and
to the extent provided by Landlord), lighting, cleaning, maintaining, repairing
(including minor replacements associated with such repair) and restoring the
common areas of the Property, including all utility lines, pipes and conduits,
drainage or sewage systems, elevators and escalators, and electricity, steam,
water, fuel, heating, lighting and air conditioning systems serving the Property
and also including the costs and expenses for mail collection and distribution,
sweeping, snowplowing, sanding, refuse removal, planting and replacing
decorations, flowers and landscaping, painting, uniforms, wages, fidelity bonds,
unemployment taxes, social security taxes, workmen's compensation insurance
premiums, fees for required licenses and permits, supplies, repair, maintenance,
operation, replacement and debt service of any equipment associated with the
maintenance or operation of such common areas (but excluding the cost of
equipment properly chargeable to the capital account and depreciation of the
original cost of construction of the parking facilities and other common areas,
buildings and building systems), and any other expense or charge, whether or not
hereinbefore mentioned, which, in accordance with generally accepted accounting
and management principles, would be considered an expense of managing,
operating, maintaining or repairing the common areas of the Property (provided,
however, that the Operating Costs shall not include any capital expenditures as
defined under generally accepted accounting principles); and
(b) all premiums for comprehensive general public liability,
property damage, difference in condition, casualty, rent loss, elevator, and
other insurance maintained by Landlord with respect to all of the Property,
including the common areas and all buildings and improvements.
29
EXHIBIT FNRV
CALCULATION OF FAIR MARKET RENTAL VALUE
For purposes of Section 2.2, "Fair Market Rental Value" shall be as
reasonably determined by Landlord to be the annual rental charge on a so-called
"triple net" basis (including without limitation Base Rent, Additional Rent and
other charges) as of the commencement date of each Option Period, for new leases
then being negotiated or executed for comparable office space in the area
surrounding Dedham, Massachusetts for terms commencing on or about the date of
commencement of the Option Period. In determining Fair Market Rental Value,
Landlord shall take into consideration the size of the premises, location of the
premises, lease term, condition and location of the applicable office building,
services provided by the landlord, rental concessions and other comparable
factors). Bona fide written offers to lease comparable space received by
Landlord from third parties (at arm's length) may be used by Landlord as an
indication of the Fair Market Rental Value.
Landlord shall notify Tenant of its determination of Fair Market
Rental Value within ten (10) days after Landlord's receipt of Tenant's notice
exercising its option to extend and Landlord shall furnish data in support of
such determination. If the Landlord does not receive written notice from Tenant
of Tenant's disagreement with landlord's determination of the Fair Market Rental
Value within ten (10) days after Tenant's receipt of said determination, Tenant
shall be deemed to have accepted said determination by Landlord. If Tenant
disagrees with Landlord's determination of the Fair Market Rental Value, Tenant
shall have the right, by written notice given to Landlord within thirty (30)
days after Tenant has received notice of Landlord's determination, to request
that such Fair Market Value be determined by appraisal in accordance with the
provisions of this Exhibit FMRV. In such event, the Fair Market Rental Value
shall be determined by impartial MAI appraisers, one to be chosen by Landlord,
one to be chosen by Tenant (the "Initial Appraisers"), and, if necessary, a
third to be selected as provided below. Landlord and Tenant shall each notify
the other of its selected appraiser within ten days following giving of Tenant's
request for appraisal as provided above. Each appraiser shall be independent,
have at least five (5) years experience with commercial properties in the area,
and be familiar with office parks and leases and rents in Dedham, Massachusetts
and experienced in making real estate appraisals. The cost of each Initial
Appraiser shall be paid by the party selecting such Appraiser. The appraisers
shall render their written appraisal of the Fair Market Rental Value for the
Option Period within thirty (30) days following the appointment of both such
appraisers. If the appraisals determined by each of the Initial Appraisers are
less than five percent (5%) apart (i.e., the higher appraisal is less than 105%
of the lower appraisal), then the Fair Market Rental Value shall be determined
by taking the average of the two appraisals. In the event Appraisers are five
30
percent (5%) or more apart, the Initial Appraisers shall promptly select a third
appraiser who meets the same criteria as required of the Initial Appraisers
("Third Appraiser"). The Third Appraiser shall submit to Landlord and Tenant,
within twenty-one (21) days after its appointment, its written appraisal of the
Fair Market Rental Value with respect to the Leased Premises as of the
applicable commencement date, which appraisal shall be binding upon Landlord and
Tenant. The cost of the Third Appraiser shall be borne equally by Landlord and
Tenant.
31
EXHIBIT SIGN
To be subsequently attached by Landlord and Tenant (it being agreed
that Landlord and Tenant will cooperate reasonably and in good faith with one
another in developing and agreeing upon such sign specifications).
32
