LEASE
THIS Lease is between XXXXXX X. XXXXXXX, TRUSTEE OF NORTHERNEDGE/PLANT ONE
REALTY TRUST, under Declaration of Trust dated December 20, 1988, recorded with
the Hampden County Registry of Deeds at Book 7065, Page 1, with a usual place of
business at 00 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx, hereinafter
referred to as the "Lessor," and PHYSICIANS QUALITY CARE, INC., a Massachusetts
corporation with a usual place of business at 000 Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxxxxxxx, hereinafter referred to as the "Lessee."
The Lessor and the Lessee agree as follows:
1. Leased Premises.
(a) The Lessor hereby leases to the Lessee, and the Lessee hereby
leases from the Lessor, for the term and upon the conditions contained in this
Lease, that portion of the second floor of the building located at 000 Xxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx (the "Building") outlined in blue and labeled
as "Area #2" on Exhibit A, which is attached hereto and made a part hereof (the
"Leased Premises"). The Leased Premises consist of approximately 2,410 rentable
square feet of space. The Building is located within and comprises part of
NorthernEdge Condominium (the "Project").
(b) The Lessor leases the Leased premises to the Lessee together with
the following:
(i) The nonexclusive right in favor of the Lessee, its agents,
servants, employees and invitees, to park their automobiles within the
common areas of the project which are identified as "Permitted Parking
Areas" on Exhibit B. All such parking rights are granted by the
Lessor to the Lessee in common with all others entitled thereto and
only to the extent available and on an equitable basis. The Lessor
agrees that it shall not change the Permitted Parking Areas in any
manner that materially reduces the number of parking spaces available
to the Lessee or in any manner that materially interferes with access
to the Leased
Premises from the Permitted Parking Areas or results in a substantial
variation in the location of the Permitted Parking Areas; and
(ii) The right of access, in common with all others entitled
thereto, to the Leased Premises through the common areas located
within the Buildings and the entrances to the Buildings, as more
particularly described on Exhibit A.
(c) Except as otherwise expressly provided in this Lease, the Lessor
hereby reserves to itself (i) the right to maintain, use, repair and replace
pipes, ducts, wires, meters and any other equipment, machinery, apparatus, and
fixtures located within or without the Leased Premises which service other parts
of the Building; (ii) the right to make changes, alterations, and additions to
the Building, common areas, and common facilities provided that any such
changes, alterations or additions do not unreasonably structurally change the
interior of the Leased Premises and provided that reasonable access and service
to the Leased Premises is provided; and (iii) the right to enter the Leased
Premises for repair and maintenance purposes upon reasonable prior notice to
Lessee, and for emergency purposes at any time, without notice. The Lessor and
the Lessee agree that the requirement that the Lessor provide the Lessee with
reasonable prior notice in connection with the exercise by the Lessor of its
right of entry with respect to the Leased Premises shall be satisfied if the
Lessor provides the Lessee with prior notice at least twenty-four (24) hours
prior to the exercise by the Lessor of its right of entry, except in the event
of an emergency.
2. Use by Lessee.
The Lessee agrees that it will use the Leased Premises only for general
office purposes. The Lessee shall not use or occupy the Leased Premises for any
other purpose or business without the prior written consent of the Lessor. The
Lessee shall observe and comply with the Lessor's reasonable Rules and
Regulations as promulgated from time to time
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by the Lessor with respect to the Buildings and/or the Project. The Rules and
Regulations shall be generally applicable to all tenants or other occupants of
the Buildings and/or the Project.
3. Commencement Date; Tenant Improvement Allowance.
(a) The term of this Lease and the Lessee's obligation to pay rent
hereunder shall commence upon December 1, 1996 (the "Commencement Date"). The
Lessee agrees to accept possession of the Leased Premises on the Commencement
Date "AS IS, WHERE IS," without any requirement that the Lessor perform any work
or make any alterations with respect to the Leased Premises or any portion
thereof, subject to the Lessor's obligations pursuant to Paragraph 3(b) below.
(b) The Lessor and the Lessee acknowledge that the Lessee intends to
make certain improvements to the Leased Premises (the "Lessee's Improvements").
The Lessee's Improvements shall be subject to the prior approval of the Lessor,
which shall not be unreasonably withheld or delayed. The Lessor agrees to
reimburse the Lessee for the cost of the Lessee's Improvements, up to a total
reimbursement amount of Sixteen Thousand Eight Hundred Seventy ($16,870.00)
Dollars (the "Allowance"). The Allowance shall be paid by the Lessor to the
Lessee upon presentation by the Lessee to the Lessor of invoices confirming the
payment by the Lessee of costs and expenses incurred in connection with the
performance of the work required to complete the Lessee's Improvements. The
Lessee shall make such payments to the Lessor within five (5) days from the date
of receipt by the Lessor of a request for payment from the Lessee, provided that
the Lessee shall not make any such request more frequently than every two (2)
weeks.
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4. Term.
The Lessee shall hold the Leased Premises for a term of five (5) lease
years, beginning upon the Commencement Date and ending on November 30, 2001.
The phrase "lease year" as used herein shall mean a period of twelve (12)
consecutive calendar months.
5. Rent.
(a) The Lessor and the Lessee agree that the annual rent payable by
the Lessee during the term of this Lease shall be Thirty-Two Thousand Five
Hundred Sixty-Five ($32,565.00) Dollars, which is an amount equal to the product
of Thirteen ($13.00) Dollars times 2,505, the total number of rentable square
feet of space included within the Leased Premises.
(b) The annual rent payable by the Lessee to the Lessor pursuant to
Paragraph 5(a) above shall be payable in equal monthly installments at the
office of the Lessor or of the Lessor's agent, in advance, upon the first day of
each calendar month during the term of this Lease.
(c) The Lessee agrees to pay the rent provided for in this Lease as
and when due including any additional rent, as well as all sums of money,
charges or other amounts required to be paid by the Lessee to the Lessor or to
another person designated by the Lessor under this Lease, all of which shall be
deemed to be "rent" in addition to the rent expressly provided for herein. All
payments of rent and additional rent shall be due and payable without demand
therefor unless otherwise expressly provided in this Lease. Nonpayment of
additional rent when due shall constitute a default under this Lease to the same
extent, and shall entitle the Lessor to the same remedies, as nonpayment of
rent.
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6. Additional Rent.
(a) The Lessee shall pay to the Lessor as additional rent its
Proportionate Share, as hereinafter defined, of any increase in "operating
expenses" for the Building and the common areas of the Project attributable to
the Building, as identified on Exhibit B (the "Building Common Areas") over the
Lessor's actual operating expenses for Calendar Year 1996. The Lessor and the
Lessee agree that the Lessee's proportionate share of operating expenses for
purposes of this Paragraph 6(a) and real estate taxes for purposes of Paragraph
6(b) below shall be 12.91 percent. Operating expenses shall include all
charges, costs and expenses incurred by the Lessor in connection with the
operation, maintenance and repair of the Building and the Building Common Areas,
including without limitation (i) the cost of maintenance, electricity and heat
for the common areas of the Building and the Building Common Areas; (ii) the
cost of property management for the Building and the Building Common Areas;
(iii) the cost of insurance for the Building and the Building Common Areas; (iv)
the cost of sewer and water charges for the Building; and (v) the cost of
furnishing utilities to the Leased Premises, all other rentable areas of the
Building, the common areas of the Building and the Building Common Areas.
Operating expenses shall not, however, include (A) the cost of equipment,
repairs or improvements properly treated as capital expenditures under generally
accepted accounting principles, (B) any charges for depreciation of the cost of
construction at the Building and any improvements, equipment or repairs thereto,
(C) any interest paid on any debt of the Lessor, (D) any cost resulting to the
Lessor as a result of alterations, upgrades or installations in the Building or
any mechanical or other system in or servicing the Building to the extent
required by statute, regulation, ordinance adopted or other implemented after
the Commencement Date, (E) any rental commissions or brokerage fees paid or
payable by the Lessor, (F) any costs or expenses incurred by the
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Lessor solely for the benefit of other tenants of the Building, and (G) any
salaries, compensation, fringe benefits or other personnel costs of the Lessor,
its partners or other direct or indirect holders of any equity interest in the
Lessor, except for the cost of property management for the Building and the
Building Common Areas. Within ninety (90) days following the end of each
calendar year during the term of this Lease the Lessor shall furnish to the
Lessee the Lessor's calculation of the amount of operating expenses during the
immediately preceding calendar year and the Lessee's share of such operating
expenses. The Lessor's calculations shall be conclusive and binding upon the
Lessee in the event that the Lessee fails to object to such calculations within
one hundred eighty (180) days following the receipt by the Lessee of the
Lessor's calculations, specifying with reasonable specificity in any such
objection the reason or reasons why the Lessee objects to the Lessor's
calculations. The Lessor and the Lessee agree that during the one hundred eighty
(180) day period following the date of delivery by the Lessor to the Lessee of
the Lessor's calculation of the amount of operating expenses during the
immediately preceding calendar year and the Lessee's share of such operating
expenses, the Lessee and its authorized representatives shall have the right to
review the Lessor's books and records relating to the calculation of the
Lessor's operating expenses at any reasonable time upon reasonable prior notice
thereof.
(b) The Lessee shall pay to the Lessor as additional rent the Lessee's
Proportionate Share of any increase in real estate taxes levied against the
Building over the real estate taxes payable during the 1996 fiscal tax year
ending June 30, 1996.
(c) The Lessee shall pay to the Lessor as additional rent monthly in
advance, an amount equal to one-twelfth (1/12) of Lessee's proportionate share
of increases in operating expenses and real estate taxes as reasonably estimated
by the Lessor in accordance with Paragraphs 6(a) and (b) above. In the event
that the additional rent paid by
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the Lessee as the Lessee's proportionate share of operating expenses and real
estate taxes based on the Lessor's estimates is greater or less than the amount
actually due (the "Difference") either the Lessor shall pay the Lessee the
Difference, or the Lessee shall pay the Lessor the Difference, each within
thirty (30) days after the receipt of a request therefor, as appropriate.
(d) The additional rent payments described in this Paragraph 6 shall
be prorated in the event that this Lease commences or terminates before the end
of any calendar year or fiscal tax year.
7. Condition of Leased Premises, Improvements, Maintenance and Repairs;
Surrender.
(a) The Lessor has not made and the Lessee has not relied upon any
representations or warranties, whether express or implied, as to the condition
of the Leased Premises or their suitability for the Lessee's use other than
those which may be specifically set forth in this Lease. The Lessee accepts the
Leased Premises in the condition existing upon the date of execution of this
Lease except for latent defects.
(b) The Lessor agrees that during the term of this Lease it shall, at
its own expense, make all necessary structural repairs and replacements to the
Leased Premises and the Building and it shall maintain the concealed plumbing,
concealed electrical and air conditioning and heating systems which are
installed or furnished by the Lessor except as otherwise expressly provided
herein or unless necessitated by the negligent or tortious acts of the Lessee,
its agents, servants, employees, invitees or licensees, with damage by fire or
other casualty excepted. The Lessor assumes limited responsibility for the
replacement of mechanical equipment when, in its reasonable judgment, repairs
cannot be made in a reasonable manner or at a reasonable cost. The Lessor shall
not be obligated to make any
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such repairs until the expiration of a reasonable period of time after its
receipt of verbal or written notice from the Lessee that such repairs are
required. Notwithstanding the foregoing, however, the Lessor shall use
reasonable efforts to repair immediately any equipment or other condition that
the Lessor is required to repair pursuant to this Lease to the extent that the
Lessor's failure to repair any such equipment or other condition substantially
impairs the use and enjoyment by the Lessee of the Leased Premises. The Lessor
shall be responsible for the reasonable removal of snow and ice and shall clean
and maintain the Project's common areas, including all landscaped areas and all
parking areas, and shall keep them reasonably illuminated throughout all periods
of darkness.
(c) The Lessee agrees that during the term of this Lease it shall, at
all times, keep the Leased Premises in a good, clean condition and in good order
and repair and it shall make all necessary repairs and perform all necessary
maintenance for such purposes, except to the extent that the Lessor is required
to make any such repairs or provide any maintenance as described in this
Paragraph 7 and in Paragraphs 8, 16 and 17 of this Lease. The Lessee shall be
responsible for all necessary repairs, replacements and maintenance of all
interior glass, floors and walls within or part of the Leased Premises. If the
Lessee fails, refuses or neglects to make such repairs or fails to prosecute
diligently such repairs to completion within thirty (30) days after written
notice from the Lessor of the necessity therefor, the Lessor may make such
repairs at the expense of the Lessee, and such expenses shall be collectible as
additional rent. The Lessee shall not permit the Leased Premises to be
overloaded, damaged, stripped or defaced, nor suffer any waste.
(d) The Lessor shall not be liable for any injury to or interference
with the Lessee's business arising from or caused by the Lessor's reasonably
making any repairs, alterations, additions or improvements in or to the Leased
Premises or the Building or to any
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appurtenances thereto or equipment therein. The Lessor agrees to use reasonable
efforts to minimize any interference with the Lessee's business in connection
with the making of any such repairs, alterations, additions or improvements in
or to the Leased Premises or the Building. There shall be no abatement of rent
because of such repairs, alterations, additions or improvements, except as
otherwise expressly provided herein. The Lessor agrees that if the Leased
Premises are rendered substantially untenantable as a result of or in connection
with the making of any such repairs, alterations, additions or improvements by
the Lessor for a period of five (5) consecutive business days the rent payable
by the Lessee shall be abated for the remainder of any such period during which
the Leased Premises are rendered substantially untenantable.
(e) The Lessee shall, at the end of the term of this Lease or upon the
earlier termination of this Lease, surrender the Leased Premises to the Lessor,
together with all signs and all alterations, additions and improvements thereto,
in broom clean condition and in good order and repair except for ordinary wear
and tear and damage for which the Lessee is not obligated to make repairs under
this Lease. The Lessee shall have the right at the end of the term hereof to
remove any equipment, furniture, trade fixtures, telephone system and security
systems or other personal property placed in the Leased Premises by the Lessee,
and the Lessee shall promptly repair any damage to the Leased Premises caused by
such removal and restore the Leased Premises to the condition existing upon the
date of execution of this Lease, reasonable wear and tear excepted. In the
event that the Lessee fails to repair and restore the Leased Premises as
provided herein, the Lessor may perform or cause such repairs and restoration to
be performed at the Lessee's expense. In the event of the Lessee's failure to
remove any of the Lessee's property from the Leased Premises, the Lessor is
hereby authorized, without liability to the Lessee for loss or damage thereto,
and at the sole risk of
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the Lessee, to remove and store any of the property at the Lessee's expense, or
to retain same under the Lessor's control or to sell at public or private sale,
any or all of the 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. The
Lessor shall provide the Lessee with written or verbal notice twenty-four (24)
hours prior to taking any of the actions described in this Paragraph 7(e) with
respect to the Lessee's property.
8. Building Services.
(a) The Lessor shall provide the following services and facilities:
(i) Air conditioning, ventilation and heating, through the air
conditioning and heating systems of the Building, in
amounts generally agreed upon as sufficient in first class
office Building, on business days Monday through Friday
from 8:00 a.m. to 8:00 p.m., and on Saturdays from 8:00
a.m. to 1:00 p.m. The Lessee agrees to cooperate fully with
the Lessor and to abide by all the regulations and
requirements which the Lessor may reasonably prescribe for
the proper functioning and protection of the air
conditioning and heating systems;
(ii) Electric current for Building standard level of
illumination using fixtures acceptable to the Lessor and
all other purposes requiring electricity. The Lessee agrees
that the Lessee shall be responsible for the replacement of
all light bulbs, globes, fluorescent tubes and ballast with
respect to all light fixtures located within the Leased
Premises, regardless of whether or not such light fixtures
are installed by the Lessor or the Lessee. The Lessor's
obligation to furnish electricity for lighting does not,
however, include electricity for reproduction machinery,
other than normal 110 volt, 30 amp circuits. Such
additional electrical service will be furnished, if
reasonably available, upon the payment by the Lessee of all
costs of installation, including wiring and separate
metering, and agreeing in writing to pay the costs of
current as additional rent;
(iii) Maintenance and service of the public lavatories in the
Building;
(iv) Cleaning and maintenance of the Leased Premises and the
common areas in the Building. The cleaning and maintenance
services to be provided by the Lessor with respect to the
Leased
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Premises are more particularly described upon Exhibit C,
which is attached hereto and made a part hereof. The Lessor
agrees to maintain the common areas in the Building in a
condition consistent with a first class office building;
(v) Hot and cold water for lavatories, air conditioning and
sinks within the Leased Premises. If the Lessee requires
water for additional purposes the Lessee shall pay the cost
thereof as shown on a meter to be installed and maintained
at the Lessee's expense to measure such consumption;
(vi) Elevator service and maintenance; and
(vii) Parking lot and landscape maintenance, including snow
removal from the Permitted Parking Areas and related
walkways.
(b) The Lessor shall not be liable in damages or otherwise for any delay
or failure in furnishing any of the foregoing services or facilities where such
delay or failure is excusable pursuant to the provision of Paragraph 27 hereof.
In no event shall such delay or failure, regardless of cause, constitute an
eviction of the Lessee, termination of this Lease or other interference with the
Lessee's use and enjoyment of the Leased Premises, provided that such delay or
failure is excusable pursuant to Paragraph 27 below.
9. Indemnity and Liability Insurance.
(a) The Lessee agrees that, unless caused by the negligent or tortious
acts or omissions of the Lessor, its agents, servants or employees, it will:
(1) indemnify the Lessor against any injury, loss, claim or damage to any person
or property, wherever located, if caused by the negligent or tortious acts or
omissions of the Lessee or its agents or servants; and (2) without limiting the
generality of the foregoing, the Lessee specifically agrees that it will not
make any claims against the Lessor based on the leakage of water, gas or other
substance from any pipes, sprinklers or equipment, or by reason of the
existence, use or misuse of water or plumbing, heating, electrical, gas or other
fixtures or equipment, unless due to the negligence of the Lessor.
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If the Lessor shall, without fault on its part, be made a party to any
litigation commenced by or against the Lessee, the Lessee shall protect and hold
the Lessor harmless and indemnified from and against any loss or damage
sustained by the Lessor as a result thereof, and the Lessee shall pay all costs
and expenses, including reasonable attorneys' fees, incurred or paid by the
Lessor in connection with such litigation. The Lessor agrees that the Lessee
shall have the right to select counsel to defend the Lessor for purposes of this
paragraph, provided that any such counsel is reasonably acceptable to the
Lessor. The Lessor agrees that counsel approved by the Lessee's insurer shall
be acceptable to the Lessor for purposes of this Paragraph.
(b) The Lessee shall procure and maintain in full force a "Comprehensive
Commercial Liability" insurance policy under which the Lessor shall be named as
an Additional Insured. Under such policy Bodily Injury limits shall not be less
than $2,000,000 per person, per occurrence and property damage limits shall not
be less than $500,000 each occurrence. Certificates of the insurance affected
under this paragraph, and certificates of any and all renewals or replacements
of this policy, shall be delivered to the Lessor as soon as possible after the
effective date of this Lease. The policy or certificate shall provide that the
insurance shall not be cancelled or reduced in amounts of limits, or reduced in
breadth of coverage without ten (10) days' prior written notice to the Lessor,
and that no act or omission on the part of the Lessee shall invalidate such
policies as they apply to the Lessor.
10. Compliance with Law.
The Lessee agrees that it shall, at its own expense, comply with all state
and federal statutes, municipal regulations, and all regulations and orders of
any public authority (the "Governmental Requirements") with respect to the use
and occupancy of the Leased Premises or with respect to such improvements,
alterations or repairs of the Leased Premises by the
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Lessee as may be required to comply therewith. The Lessee specifically agrees
that if any improvements, alterations or repairs are required by the
Governmental Requirements as a direct result of the Lessee's use of the Leased
Premises the Lessee shall make all such improvements, alterations or repairs, at
its sole cost and expense. The Lessor represents and warrants to the Lessee that
to the best knowledge of the Lessor the Leased Premises and the use of the
Leased Premises by the Lessee comply with the Governmental Requirements as of
the date of this Lease. The Lessor agrees that the Lessee shall not have any
obligation pursuant to this Lease with respect to the compliance of the Building
Common Areas with the Governmental Requirements.
11. Assignment and Sublease.
The Lessee shall not assign this Lease or make any sublease for the whole
or any part of the Leased Premises to any entity, without the prior written
consent of the Lessor, which shall not be unreasonably withheld or delayed. The
Lessee agrees to give the Lessor written notice of any such assignment or
sublease within thirty (30) days after the effective date thereof. The Lessor
and the Lessee agree that in the event of any assignment or sublease to a
person, firm or entity that is approved by the Lessor pursuant to Paragraph 11
of this Lease, the Lessor shall be entitled to collect and the Lessee shall pay
to the Lessor promptly following its receipt from any such assignee or subtenant
fifty (50%) percent of all payments of rent, additional rent or other charges
payable by any such assignee or subtenant in excess of the rent, additional rent
and other charges payable by the Lessee pursuant to the terms of this Lease.
The Lessee shall include in its request for the Lessor's consent to any proposed
assignment or sublease a reasonably detailed summary of the terms of any such
proposed assignment or sublease. If this Lease is assigned or if the Leased
Premises or any part thereof are occupied by anybody other than the Lessee, the
Lessor may collect rent from the
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assignee or occupant and apply the net amount collected to the rent reserved,
but no such assignment, underletting, occupancy or collection shall be deemed a
waiver of this provision or the acceptance of the assignee, undertenant or
occupant as lessee. Nothing herein contained shall relieve the Lessee from its
covenants and obligations for the term of this Lease. The Lessee agrees to
reimburse the Lessor for the Lessor's reasonable attorneys' fees incurred in
conjunction with the processing and documentation of any such requested
transfer, assignment, subletting, license or concession agreement, change of
ownership, mortgage or hypothecation of this Lease or the Lessee's interest in
and to the Leased Premises, excluding any attorneys' fees incurred by the Lessor
in connection with the review by the Lessor of the form of any proposed sublease
by the Lessee.
12. Alterations and Additions.
The Lessee shall not make any alterations or additions to the Leased
Premises without the prior written consent of the Lessor, which shall not be
unreasonably withheld or delayed. Notwithstanding anything contained herein to
the contrary, the Lessor's prior consent shall not be required with respect to
any nonstructural alteration which does not affect the Building systems or any
other part of the Building (other than the Leased Premises), provided that the
estimated cost of the labor and materials for any such alteration or alterations
shall not exceed Ten Thousand ($10,000.00) Dollars in the aggregate within any
twelve (12) month period during the term of this Lease. The Lessor and the
Lessee agree that the Lessor may, in its discretion, condition its approval of
any alterations or additions proposed to be made by the Lessee to the Leased
Premises upon the Lessee agreeing to restore the Leased Premises to the
condition existing prior to the installation of any alterations or additions, at
the Lessee's sole cost and expense, upon the expiration of the term
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of this Lease. The Lessor expressly reserves the right to make its own
alterations, additions or improvements to the Building.
13. Fire Insurance.
The Lessor shall carry fire insurance with extended coverage on the
Building in an amount not less than the full insurable value of the Building,
exclusive of the foundations. The Lessee shall carry fire insurance with
extended coverage on all of the Lessee's fixtures, furniture, furnishings,
equipment and stock in trade to the extent of their full replacement value. Fire
insurance will be carried with companies qualified to do business in
Massachusetts, and the Lessee agrees to furnish the Lessor with certificates
evidencing such insurance upon the request of the Lessor therefor. The Lessee
also agrees that all such insurance policies shall provide that they shall not
be cancelled or materially changed without at least ten (10) days' prior written
notice thereof to the Lessor and that no act or omission by the Lessee shall
invalidate such policies as they apply to the Lessor.
14. Access by Lessor.
The Lessor shall have the right to enter the Leased Premises at reasonable
times during the Lessee's business hours for the purpose of inspection, making
such repairs as the Lessor may be obligated to make or may reasonably deem
necessary for curing any default of the Lessee. The Lessor agrees that, except
in the event of an emergency, it shall provide the Lessor with twenty-four (24)
hours' prior notice of any exercise by the Lessor of the right of entry reserved
hereby. The Lessor shall have the right of access to the Leased Premises at any
time in the event of an emergency, without prior notice, without liability to
the Lessee and without such entry constituting an eviction of the Lessee or
termination of the Lease. The Lessor agrees to use reasonable efforts to
minimize any interference with the Lessee's business in connection with the
exercise by the Lessor of the right of access reserved hereby.
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15. Utilities.
The Lessor agrees to provide and pay for electricity, heat and air
conditioning used or consumed by the Lessee in connection with its use and
occupancy of the Leased Premises during the entire term of this Lease, subject
to the Lessee's obligation to pay additional rent for increases in Operating
Expenses pursuant to Paragraph 6(a) above. The Lessee agrees to take reasonable
steps to conserve energy during the entire term of this Lease.
16. Destruction of Leased Premises.
(a) If the Leased Premises are damaged by fire, the elements,
unavoidable accident or other casualty, but are not thereby rendered
untenantable in whole or in part, the Lessor shall at its own expense cause such
damage to be repaired within one hundred fifty (150) days from the occurrence
thereof, or within such longer period of time as may be required exercising due
diligence, and the rent shall not be abated. If by reason of such occurrence,
the Leased Premises are rendered untenantable only in part, the Lessor shall at
its own expense cause the damage to be repaired within one hundred fifty (150)
days from the occurrence thereof, and the rent shall be abated proportionately
as to the portion of the Leased Premises rendered untenantable. If the Leased
Premises are rendered wholly untenantable, the Lessor shall at its own expense
cause such damage to be repaired as soon as practicable and the rent shall xxxxx
until the Leased Premises have been restored and rendered tenantable, or the
Lessor or the Lessee may, at their election, terminate this Lease and the
tenancy hereby created by giving to the other, within the thirty (30) days
following the date of such occurrence, written notice of their election to
terminate this Lease and in that event the rent shall be adjusted as of the date
of such occurrence.
(b) In the event that fifty (50%) percent or more of the rentable area
of the Leased Premises is damaged or destroyed the Lessor may terminate this
Lease and the
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tenancy hereby created by giving the Lessee ninety (90) days' prior written
notice of the Lessor's election to so terminate this Lease, with such notice
given, if at all, within the ninety (90) days following the date of said
occurrence. Rent shall be adjusted as of the effective date of such termination.
In the event that the Lessor does not exercise the right of termination set
forth herein the Lessor shall cause the damage to be repaired and rent shall be
abated as provided in Paragraph 16(a) above.
17. Eminent Domain.
(a) If the whole of the Leased Premises or the Building are acquired
or condemned by eminent domain for any public or quasi-public use or purpose,
then the term of this Lease shall cease and terminate as of the date of title
vesting in such proceeding, all rentals shall be paid up to that date and the
Lessee shall have no claim against the Lessor or the condemning authority for
the value of any unexpired term of this Lease.
(b) If any part of the Leased Premises or the Building is acquired or
condemned as aforesaid, and in the event that such partial taking or
condemnation shall render the Leased Premises unsuitable for the business of the
Lessee, as reasonably determined by the Lessee, then the term of this Lease
shall cease and terminate as of the date of title vesting in such proceeding.
The Lessee shall have no claim against the Lessor or the condemning authority
for the value of any unexpired term of this Lease and rent shall be adjusted to
the date of such termination. In the event of a partial taking or condemnation
which is not extensive enough to render the Leased Premises unsuitable for the
business of the Lessee, as reasonably determined by the Lessee, then the Lessor
shall promptly restore the Leased Premises to a condition comparable to its
condition at the time of such condemnation less the portion lost in the taking,
and this Lease shall continue in full force
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and effect with a proportionate reduction in rent and additional rent based upon
the nature and extent of any such taking.
(c) In the event of any condemnation or taking as aforesaid, whether
whole or partial, the Lessee shall not be entitled to any part of the award paid
for such condemnation and the Lessor shall receive the full amount of such
award. The Lessee hereby expressly waives any right to claim any part thereof.
(d) Although all damages in the event of any condemnation are to
belong to the Lessor regardless of whether such damages are awarded as
compensation for diminution in value of the leasehold or to the fee of the
Leased Premises, the Lessee shall have the right to claim and recover from the
condemning authority, but not from the Lessor, such compensation as may be
separately awarded or recoverable by the Lessee in the Lessee's own right on
account of any and all damage to the Lessee's business by reason of the
condemnation and for or on account of any relocation allowance or any other cost
or loss to which the Lessee might be put in removing the Lessee's merchandise,
furniture, fixtures, leasehold improvements and equipment.
18. Lessee's Default.
The occurrence of any of the following shall constitute an event of default
and breach of this Lease by the Lessee:
(a) The vacation or abandonment of the Leased Premises by the Lessee
or the failure of the Lessee to continue in its regular business on a day-to-day
basis during the term of this Lease, subject to the Lessee's rights pursuant to
Paragraph 33(c) below;
(b) The failure of the Lessee to pay, within ten (10) days of the date
when due, any installment of rent or any recurring payment of additional rent
due hereunder, any other sum required to be paid by the Lessee or any part of
any of the foregoing.
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(c) The failure of the Lessee to observe or perform any other
provisions, covenants or obligations of this Lease to be observed or performed
by the Lessee, where such failure continues for thirty (30) days after the
receipt by the Lessee of written notice thereof from the Lessor, unless the
Lessee begins promptly after the receipt of written notice thereof from the
Lessor to cure any such default and proceeds diligently and conscientiously to
cure such default; or
(d) The making by the Lessee of any assignment for the benefit of
creditors; the adjudication that the Lessee is bankrupt, insolvent or unable to
pay its debts; the filing by or against the Lessee of a petition to have the
Lessee adjudged a bankrupt or a petition for reorganization or arrangement under
any law relating to bankruptcy unless, in the case of a petition filed against
the Lessee, such petition is dismissed within sixty (60) days after the filing
thereof; the appointment of a trustee or receiver to take possession of
substantially all of the Lessee's assets located in the Leased Premises or of
the Lessee's interest in this Lease, unless possession is restored to the Lessee
within thirty (30) days after such appointment; or the attachment, execution or
levy against, or other judicial seizure of, substantially all of the Lessee's
assets located in the Leased Premises or of the Lessee's interest in this Lease,
unless discharged within thirty (30) days after issuance thereof.
19. Lessor's Remedies.
Upon the occurrence of any event of default as described in Paragraph 18:
(a) The Lessor may perform for the account of the Lessee any
obligation with respect to which the Lessee is in default and immediately
recover as additional rent any expenditures made and the amount of any
obligations incurred in connection therewith plus interest at the Prime Rate
published in The Wall Street Journal plus three (3%) percent per
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annum for such expenditures from the date of any such expenditures, together
with a late charge for payments of rent past due at the same rate of interest;
(b) The Lessor may accelerate all rent and additional rent due for the
balance of the term of this Lease and declare all such rent to be immediately
due and payable;
(c) The Lessor, at its option, may serve notice upon the Lessee that
this Lease and the then unexpired term hereof shall cease and expire and become
absolutely void on the date specified in such notice, which shall be not less
than five (5) days after the date of such notice without any right on the part
of the Lessee to save forfeiture by payment of any sum due or by the performance
of any term, provision, covenant, agreement or condition broken. This Lease and
the term hereof, as well as the right, title and interest of the Lessee
hereunder shall, upon the effective date of such notice, wholly cease and expire
and become void in the same manner and with the same force and effect, except as
to the Lessee's liability, as if the date fixed in such notice were the date
provided herein for the expiration of the term of this Lease. Thereupon the
Lessee shall immediately quit and surrender to the Lessor the Leased Premises
and in any event, the Lessor may forcefully remove the property of the Lessee
without being liable either in damages or in a criminal prosecution. No such
expiration or termination of this Lease shall relieve the Lessee of its
liability and obligations under this Lease, whether or not the Leased Premises
shall be relet. If the Lessee fails to remove any equipment, furniture, trade
fixtures or other property prior to any such repossession by the Lessor such
equipment, furniture, fixtures and other property shall be deemed abandoned by
the Lessee and shall become the property of the Lessor;
(d) The Lessor may, at any time after written notice of the occurrence
of any event of default and the expiration of any applicable cure and/or notice
periods, re-enter
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and repossess the Leased Premises or any part thereof and attempt, in its own
name as agent for the Lessee if this Lease has not been terminated or on its own
behalf if this Lease has been terminated, to relet all or any part of such
Leased Premises for and upon such terms and to such persons, firm or corporation
and for such period or periods as the Lessor, in its sole discretion, shall
determine, including a term beyond the termination of this Lease. The Lessor
shall not be required to accept any tenant offered by the Lessee or observe any
instruction given by the Lessee with respect to such reletting. The cost of
reasonable brokerage and legal fees expended by the Lessor in connection with
the reletting of the Leased Premises as well as the reasonable cost of repairing
or restoring the Leased Premises arising out of damage caused by the Lessee or
improvements made by the Lessee to the Leased Premises that the Lessee is
required to remove pursuant to this Lease and failed to remove shall be charged
to and be payable by the Lessee as additional rent hereunder, and any sums
collected by the Lessor from any new tenant shall be credited against the
balance of the rent due hereunder for the remainder of the term of this Lease.
The Lessee shall pay to the Lessor monthly, on the date when the rent would have
been payable under this Lease, the amount of rent and additional rent due
hereunder less the amount obtained by the Lessor from any such new tenant; and
(e) The rights and remedies given to the Lessor in this Lease are
distinct, separate and cumulative remedies, and no one of them, whether or not
exercised by the Lessor, shall be deemed in exclusion of any of the others.
20. Signs and Advertising.
The Lessee agrees that it shall not erect, install or otherwise display any
signs, displays, advertisements or other means of identifying the Leased
Premises and the products and services available therein to the public on the
Leased Premises, or the Building without
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the prior written consent of the Lessor, which shall not be unreasonably
withheld or delayed. All signs erected or installed by the Lessee in accordance
with this Paragraph 20 shall be removed by the Lessee at its expense upon the
expiration of the initial or any extended term of this Lease and the Lessee
shall repair any damage caused by any such removal at the time that the Lessee
removes any such sign or signs.
21. Rules and Regulations.
The Lessor shall have the right to make such reasonable rules and
regulations as, in the judgment of the Lessor are advisable for the safety, care
and preservation of the Leased Premises, the Building and the Project (the
"Rules and Regulations"). The Rules and Regulations shall be deemed to be
covenants of this Lease running with the land and any breach or violation
thereof shall be deemed a breach or default hereunder, subject to the thirty
(30) day notice required pursuant to Paragraph 18(c) above and subject to the
requirement that the Lessor deliver to the Lessee a written copy of the Rules
and Regulations at least fifteen (15) days prior to the date when the Rules and
Regulations shall be applicable to the Lessee's use and occupancy of the Leased
Premises. The Lessor agree to enforce the Rules and Regulations in a non-
discriminatory manner with respect to all tenants occupying any portion of the
Project.
22. Mutual Subrogation Waiver.
The Lessor and the Lessee agree that any claim by either of them against
the other for damages arising out of any peril, insured under any property
damage or earnings policy carried by either shall not be assignable, nor the
subject of a subrogation action by any third party. Each of the parties agrees
to release the other party from any and all liability for damages for any claim
or claims arising out of any peril insured under any property damage or earnings
policy carried by either the Lessor or the Lessee.
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23. Notice of Claims.
In the event that any claim, cause of action or suit is made or brought
against the Lessee, or the Lessor, of which the Lessee shall have knowledge,
arising from the occupancy of the Lessee of or pertaining to the Leased
Premises, the Lessee shall immediately notify the Lessor thereof in writing. In
the event that any claim, cause of action or suit is made or brought against the
Lessor, or the Lessee, of which the Lessor shall have knowledge, arising from
the occupancy of the Lessee of or pertaining to the Leased Premises, the Lessor
shall immediately notify the Lessee thereof in writing.
24. Quiet Enjoyment.
The Lessor covenants and agrees that upon the Lessee's paying the rent
herein reserved and performing and observing all the other covenants to be
performed and observed on the part of the Lessee, the Lessee may use and occupy
the Leased Premises throughout the full term of this Lease and any renewals or
extensions thereof without any disturbance by any person whatsoever.
25. Subordination and Attornment.
The Lessee accepts this Lease subject and subordinate to any mortgage or
mortgages, including without limitation the notes or other obligations secured
thereby and any and all renewals, modifications, consolidations, replacements or
extensions of any such mortgages or the notes or other obligations secured
thereby, any easement or restriction of record now in existence or hereafter
made from time to time, affecting the fee title or the leasehold estate to the
Building or premises which the Leased Premises are a part or any part thereof of
the Lessor's interest therein. The Lessee also accepts this Lease subject and
subordinate to all instruments in the chain of fee title, including any and all
renewals, modifications, consolidations, replacements or extensions of such
instruments. The Lessee shall execute,
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acknowledge and deliver to the holder of any such mortgage or to any of the
parties to such instruments, at any time upon demand by such holder or by any
such party, any release, certificates or other documents that may be required by
such holder or by any such party, for the purpose of evidencing the
subordination of this Lease to such mortgages or other instruments or to any
renewals, modifications, consolidations, replacements or extensions thereof. The
Lessor is authorized to execute any such documents as the Lessee's attorney-in-
fact if the Lessee fails or refuses to execute any such instruments or documents
within ten (10) days following the request of the Lessor therefor unless the
Lessee's failure or refusal is reasonable taking into account the circumstances
that exist at the time of any such request. In the event of a sale under any
mortgage or any note or other obligations secured thereby, to which this Lease
is subordinate, or a taking of possession of the Leased Premises by the
Mortgagee or other person acting for or through the Mortgagee under any mortgage
to which this Lease is subordinate, the Lessee agrees that it shall attorn to
and recognize as the Lessor hereunder the party who, but for this Lease, would
be entitled to possession of the Leased Premises, provided that any such party
recognizes this Lease and the Lessee's rights hereunder.
26. Estoppel Certificates.
The Lessee and the Lessor shall, at any time and from time to time, within
twenty (20) days following its receipt of a written request from the other party
or any mortgagee, execute, acknowledge and deliver to such other party or
mortgagee a written statement certifying that this Lease is in full force and
effect and unmodified or, if modified, stating the nature of such modification,
certifying the date to which the rent reserved hereunder has been paid, and
certifying that there are not, to the knowledge of the party signing such
statement, any uncured defaults on the part of the other party or specifying
such defaults if
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any are claimed. Any such statement may be relied upon by any prospective
purchaser or mortgagee of all or any part of the Building or real property on
which the Building is located. The failure of the Lessor or the Lessee to
deliver such statement within such twenty (20) day period shall be conclusive
upon the other party that this Lease is in full force and effect and unmodified,
and that there have not been made any advance payments of rent except that may
have been made as security hereunder and that there are no uncured defaults with
respect to the other party's performance hereunder.
27. Unforeseen Delay.
The provisions of this paragraph shall be applicable if there shall occur,
during the term hereof, or any renewal or extension thereof, any strike,
lockout, or labor dispute; inability to obtain labor or materials or reasonable
substitute thereof; inability in obtaining fuel, electricity, services or
supplies from the sources from which they are normally obtained or from
reasonably comparable substitute sources; or act of God, governmental
restriction, regulation, or control, enemy or hostile governmental action, civil
commotion, insurrection, revolution, sabotage, or fire or other casualty or any
other condition or cause beyond the reasonable control of the Lessor. If the
Lessor shall, as the result of any such event, fail reasonably to perform any
obligation required hereunder, then such obligation shall be reasonably
performed as soon as practicable after such event abates. If the Lessor shall,
as a result of such event, be unable to exercise any right or option within any
time limit provided thereof or in this Lease, such time limit shall be deemed
extended for a period equal to the duration of such event.
28. Holding Over.
If the Lessee retains possession of the Leased Premises or any part thereof
after the termination of the term, the Lessee shall pay the Lessor rent at one
and one-half (1 1/2) times
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the monthly rate specified herein as the last month of the term hereof for the
time the Lessee remains in possession. The provisions of this paragraph do not
exclude the Lessor's right to summary process or any other rights hereunder. The
Lessee shall indemnify and hold the Lessor harmless from and against any and all
loss or liability resulting from the failure of the Lessee to surrender
possession of the Leased Premises in accordance with the term and conditions of
this Lease.
29. Brokers.
The Lessor and the Lessee hereby represent and warrant to each other that
no broker's commission or finder's fee is due in connection with the
consummation of this transaction except a broker's fee due to Colebrook Realty
Services, Inc. and X. X. Xxxxxxx & Company, L.L.C. (collectively, the "Broker"),
and that no real estate broker, agent or other third party has or will be
engaged to represent it in this transaction except the Broker. The Lessor shall
be responsible for the payment of all fees due the Broker arising out of this
transaction.
30. Waiver, Notices.
No consent or waiver, express or implied by the Lessor to or of any breach
of any covenant, condition or duty of the Lessee shall be construed as a consent
or waiver to or of any other breach of the same or any other covenant, condition
or duty. All notices, statements, demands, requests, consents, communications
and certificates from either party hereto to the other shall be made in writing
unless specified to the contrary herein and sent by certified mail, return
receipt requested, hand delivered or by Federal Express or similar overnight
delivery service for which a receipt is made to the parties, addressed as
follows:
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(a) If intended for the Lessor:
Xxxxxx X. Xxxxxxx, Trustee
NorthernEdge/Plant One Realty Trust
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
With a copy to:
A. Xxxxx Xxxxx, Esquire
Doherty, Wallace, Pillsbury and Xxxxxx, P.C.
Xxx Xxxxxxx Xxxxx - 00xx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
(b) If intended for the Lessee:
Physicians Quality Care, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
With a copy to:
or such other addresses as either party hereto may from time to time direct by
service of notice to the other party as provided above. Any such notices,
statements, demands, requests, consents, communications or certificates shall be
deemed given on the date if the same are sent in accordance with this
Paragraph 30.
31. Notice of Lease.
The Lessor and the Lessee agree to execute and record a Notice of Lease in
statutory form upon the request of either the Lessor or the Lessee. The Notice
of Lease shall be recorded in the Hampden County Registry of Deeds, and the cost
of recording shall be paid for by the requesting party.
32. Expressions.
The expressions "Lessor" and "Lessee" or the pronoun "it," referring either
to the Lessor or the Lessee, shall be deemed to refer to the actual Lessor or
Lessee for the time
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being as the case may be, and the context hereof may admit or require,
regardless of whether such Lessor or Lessee is a natural person, a corporation,
the trustees of a trust or some other firm or entity.
33. Miscellaneous.
(a) Authority to Sign. The Lessor and the Lessee represent and
warrant to each other that they have full right, power and authority to enter
into this Lease without the consent or approval of any other entity or person.
The Lessor and the Lessee make this representation and warranty knowing that the
other party will rely thereon. The individuals signing on behalf of the Lessor
and the Lessee each represent and warrant that they have full right, power and
authority to act for and on behalf of the Lessor and the Lessee in entering into
this Lease.
(b) Limitation on Lessor's Liability. The Lessee agrees that neither
the individual trustees of the Lessor nor the individual beneficiaries of the
Lessor shall have any personal liability pursuant to this Lease, and the sole
recourse of the Lessee against the Lessor shall be against the Project and any
insurance proceeds paid to the Lessor. The Lessee agrees that in the event that
it obtains any judgment against the Lessor, neither the individual trustees of
the Lessor nor the individual beneficiaries of the Lessor shall have any
personal liability with respect to any such judgment.
34. Entire Agreement, Construction.
This Lease contains the entire agreement of the parties hereto with respect
to the subject matter hereof, and no change or modifications hereof shall be
valid unless made in writing, signed by all of the parties hereto. This Lease
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, and it shall be binding
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upon the parties hereto and their respective heirs, legal representatives,
successors and assigns.
IN WITNESS WHEREOF, the Lessor and the Lessee have signed this Lease as a
sealed instrument as of this 9th day of December, 1996.
LESSOR
NORTHERNEDGE/PLANT ONE REALTY TRUST
By /s/
_______________________________
Its Partner
LESSEE
PHYSICIANS QUALITY CARE, INC.
By /s/ Xxxxxx X. Xxxxxxxx
_______________________________
Its Vice President-Finance
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SCHEDULE OF EXHIBITS
Exhibit A - Outline of Leased Premises
Exhibit B - Site Plan of Project and Permitted Parking Areas
Exhibit C - Janitorial and Cleaning Specifications
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