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Exhibit 10.53.1
STANDARD FORM COMMERCIAL LEASE
1 & 2. PARTIES AND PREMISES. Xxxxx X. Xxxxx and Xxxx X. Xxxxx as
Trustees of Massachusetts 955 Realty Trust for the benefit of 000 Xxxxxxxxxxxxx
Xxxxxx Associates, a Massachusetts limited partnership with a principal place of
business at 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, hereinafter called
the Lessor, which expression shall include its heirs, successors, and assigns
where the context so admits, does hereby lease to Renaissance Cosmetics, Inc., a
Delaware corporation with a principal place of business at 000 Xxxxxxxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, hereinafter called the Lessee, which
expression shall include its successors, executors, administrators, and assigns
where the context so admits, and the Lessee hereby leases the premises (the
"Premises") consisting of approximately 2,055 square feet of rentable space
having an address of 000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000,
located on the third (3) floor of the building (the "Building") situated at and
numbered 000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 together with
the right to use in common, with others entitled thereto, any existing hallways,
stairways, and elevators, necessary for access to said Premises, and any
existing lavatories nearest thereto.
3. TERM. The term of this lease shall be a period of five (5)
years from the Commencement Date, plus the Partial Month (as hereinafter
defined), if any; and the term shall terminate on the "Expiration Date", which
shall be the date which is sixty (60) months (plus the Partial Month, if any)
after the Commencement Date, unless sooner terminated as may be provided
herein. The first lease year shall consist of any partial calendar month
following the Commencement Date (the "Partial Month") and the next twelve (12)
calendar months. Each succeeding lease year shall commence upon the expiration
of the prior lease year and shall consist of twelve (12) calendar months.
The term "Commencement Date" as used herein shall mean the date that
LESSOR delivers possession of the Premises to Lessee. Lessor shall deliver the
Premises to Lessee "as is". The Commencement Date is estimated to be July 1,
1995, provided however, if Lessor fails to deliver possession of the Premises
at the estimated date, the Lessor shall not be liable for any damages caused
thereby, nor shall this lease be void or voidable, but the Commencement Date
shall be delayed by the period of delay in the delivery of possession of the
Premises. If this lease is extended or renewed, all references to "term" herein
shall refer to the extension or renewal terms unless specifically designated
otherwise.
4. RENT. (A) Rent is payable in twelve (12) equal monthly
installments in advance on the first day of each month during each lease year
of the term at the office of The Xxxxxxxx Company, 00 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 (and also at the early termination of this lease, a
proportionate part of rent for any part of a month then unexpired). All rent
checks shall be made payable to 000 XXXX. XXX. If Lessor elects to accept rent
after the seventh (7th) day of the month, interest will accrue on such sum at
the rate of 1 1/2% per month until such time as it is paid.
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(B) The base rent for each year of the term (the "Base Rent") shall be
as follows:
LEASE YEAR PER YEAR PER MONTH
Year One* $41,100.00 $3,425.00
Year Two $41,100.00 $3,425.00
Year Three $41,100.00 $3,425.00
Year Four $41,100.00 $3,425.00
Year Five $41,100.00 $3,425.00
* Base Rent is also due for any Partial Month in Lease Year One, pro-rata based
on the length of said Partial Month.
5. SECURITY DEPOSIT. Upon the execution of this Lease by Lessee, the
Lessee shall deposit with the Lessor the amount of Six Thousand Eight Hundred
Fifty ($6,850.00) Dollars. This deposit shall be held by Lessor as security for
payment of all rent and other sums of money payable for the term and for the
faithful performance by Lessee of all other covenants and agreements; provided,
however, that the Lessee shall have no right to require Lessor to indemnify
itself from this deposit for any particular violation or default of Lessee, the
use of this deposit to indemnify Lessor being within Lessor's sole discretion.
If all or any part of the deposit is applied to an obligation of Lessee
hereunder, Lessee shall immediately upon request by Lessor restore said deposit
to its original amount. No interest shall be payable to Lessee on account of
this deposit and Lessor may commingle the funds from this deposit with other of
its funds. Upon any conveyance by Lessor of its interest under this lease, the
deposit may be delivered by Lessor to Lessor's grantee or transferee (or
accounted for by means of an adjustment between seller and buyer). Upon any such
delivery or accounting, Lessee hereby releases Lessor of any and all liability
with respect to the deposit, its application and return, and Lessee agrees to
look solely to such grantee or transferee.
This deposit, or any part thereof, not previously applied by Lessor,
shall be returned to Lessee only after the Expiration Date or the date on
which any renewal term expires, and only after Lessee has fully vacated the
Premises, notwithstanding that this lease has been terminated by Lessor; it
being the intention of the parties that this deposit shall secure Lessor not
only as to default by Lessee before such termination, but also to secure Lessor
from any deficiency of rent or other charges payable to Lessor by Lessee.
Provided that as of the beginning of the thirteenth (13th) month of the term,
Lessee is not or has not been in default of this Lease beyond any applicable
cure period and has paid installments of rent in a timely manner (on or before
the date on which it is due), Lessor shall apply $3,425.00 of said security
deposit towards Base Rent owed by Lessee for the thirteenth (13th) month of the
original term of this Lease.
6. RENT ADJUSTMENT.
A TAX ESCALATION. For purposes of this Article "fiscal year" means the
twelve (12) months ending on June 30; "fiscal base year" means the fiscal year
ending June 30, 1995; "taxes" means all taxes and assessments levied by
governmental authority against the Building and its associated land and
personalty or taxes in lieu thereof; "Lessee's Share" means two and four
thousand five hundred and seventeen ten-thousands (2.4517%) percent. If the
taxes for any fiscal year (or portion of any fiscal year) occurring within the
term after the fiscal base year exceed taxes for the fiscal base year (or
exceed a pro rata portion of fiscal
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base year taxes in the event of a portion of a fiscal year being included
within the term), then Lessee shall pay to Lessor the Lessee's Share of the
excess as Additional Rent. Lessor will notify Lessee within thirty (30) days of
receipt of tax bills of the amount of taxes and the Lessee's Share of excess
taxes for the current fiscal year; Lessee shall pay Lessee's Share of the
excess within 7 days of such notification. If Lessor later receives a reduction
or refund on taxes resulting from abatement of such taxes by final
determination of legal proceedings, settlement or otherwise, Lessee is entitled
to Lessee's Share of the reduction or refund up to the amount of Additional
Rent paid for such fiscal year less Lessee's share of expenses incurred by
Lessor. If Lessor receives a refund or reduction in taxes for the fiscal base
year, then taxes for the fiscal base year shall be measured by the abated
amount.
On the date this lease expires or is otherwise terminated, the entire
additional rent on account of taxes and a proportionate share of the additional
rent on account of taxes for the fiscal year during which such expiration or
termination occurs shall immediately become due and payable by Lessee to
Lessor. Such proportionate share shall be based upon the length of time this
lease has been in existence during such latter fiscal year, and shall be
estimated by Lessor based upon the most recent applicable data, adjusted when
the actual date is available. Adjustments shall be made if the terms of this
lease begins and/or ends on other than the first or last day of a fiscal year.
In the event of Lessee's default, Lessee's obligation to pay any and all
additional rent under this lease shall continue and shall cover all periods up
to the Expiration Date.
B. ADJUSTED RENT. Intentionally Deleted.
7. UTILITIES. The Lessee shall pay, as they become due, all bills for
electricity and other utilities (whether they are used for hot water or for
other purposes) that are furnished to the Premises and separately metered, and
all bills for fuel furnished to a separate tank servicing the Premises
exclusively. The Lessor agrees to provide and to furnish cold water and
reasonable heat and air conditioning (except to the extent that the same are
furnished through separately metered utilities or separate fuel tanks as set
forth above) to the Premises during normal business hours on regular business
days of the heating and air conditioning seasons of each year, to furnish
elevator service and to light passageways and stairways during business hours,
and to furnish such cleaning service as is customary in similar buildings in
said city or town, all subject to interruption due to any accident, to the
making of repairs, alterations, or improvements, to labor difficulties, to
trouble in obtaining fuel, electricity, service, or supplies from the sources
from which they are usually obtained for said building, or to any cause beyond
the Lessor's control.
Lessor shall have no obligation to provide utilities or equipment other
than the utilities and equipment within the Premises as of the Commencement
Date of this lease. In the event Lessee requires additional utilities or
equipment, the installation and maintenance thereof shall be Lessee's sole
obligation, provided that such installation shall be subject to the written
consent of the Lessor.
8. USE OF LEASED PREMISES. The Lessee shall use the Premises only for
the purpose of a general office used for a business mass marketing and
distributing fragrances, cosmetics, and artificial fingernails, but for no
other purpose. Provided however, Lessee shall not conduct at the Premises any
hazardous or dangerous activities or any activities posing uncommon, unusual or
out of the ordinary level of risk to property or to persons. Moreover, Lessee
shall not utilize at or bring on to the Premises any hazardous, dangerous or
volatile substances.
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LESSOR MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE PREMISES ARE FIT
FOR A PARTICULAR USE OR PURPOSE, INCLUDING WITHOUT LIMITATION THE USE AS
SPECIFIED HEREIN, EXCEPT AS OTHERWISE REQUIRED BY LAW.
9. COMPLIANCE WITH LAWS. The Lessee acknowledges that no trade or
occupation shall be conducted in the Premises or use made thereof which will be
unlawful, improper, noisy or offensive, or contrary to any law or any municipal
by-law or ordinance in force in the city or town in which the Premises are
situated, or which tend to degrade the economic status of the building.
10. FIRE INSURANCE. The Lessee shall not permit any use of the Premises
which will make voidable any insurance on the property of which the Premises
are a part, or on the contents of said property 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. The
Lessee shall on demand reimburse the Lessor, and all other tenants, all extra
insurance premiums caused by the Lessee's use of the Premises.
11. MAINTENANCE.
A. LESSEE'S OBLIGATIONS. The Lessee agrees to maintain the Premises in
good condition, damage by fire and other casualty only excepted, and whenever
necessary, to replace plate glass and other glass therein, acknowledging that
the Premises are now in good order and the glass whole. The Lessee shall not
permit the Premises to be overloaded, damaged, stripped, or defaced, nor suffer
any waste. Lessee shall obtain written consent of Lessor before erecting any
sign on the Premises. Lessee shall be responsible for the maintenance, repair
and replacement of all electrical, plumbing, heating, air conditioning,
ventilation and other mechanical installations located entirely on or serving
only the Premises.
X. XXXXXX'X OBLIGATIONS. The Lessor agrees to maintain the structure
foundation, exterior and roof of the building of which the Premises are a part
in the same condition as it is on the Commencement Date or as it may be put in
during the term of this lease, reasonable wear and tear, damage (subject to
Section 19 of this lease) by fire and other casualty only excepted, unless such
maintenance is required because of the conduct of Lessee or those for whose
conduct the Lessee is legally responsible. Lessor shall be responsible only for
maintaining the building's mechanical and electrical systems which serve more
than one unit.
C. SNOW REMOVAL. The removal of snow and ice from sidewalks bordering
upon the Premises shall be Lessor's responsibility. The preceding
notwithstanding, Lessee shall be responsible for the prompt clean-up and
removal from any common area of the Building or the grounds of any trash,
debris or litter (including accumulation of cigarette butts) deposited by its
employees, agents or contractors.
12. ALTERATIONS - ADDITIONS. The Lessee shall not make structural
alterations or additions to the Premises, but may make non-structural
alterations provided the Lessor consents thereto in writing, which consent
shall not be unreasonably withheld or delayed. All such allowable alterations
shall be at Lessee's expense and shall be in quality at least equal to the
present construction. Lessee shall not permit any mechanic's liens, or similar
liens, to remain upon the leased Premises for labor and material furnished to
Lessee or claimed to have been furnished to Lessee in connection with work of
any character performed or claimed to have been performed at the direction of
Lessee and shall cause any such lien to be released of record forthwith without
cost to Lessor. Any alterations or improvements made by the Lessee shall become
the property of the Lessor at the termination
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of occupancy as provided herein.
13. ASSIGNMENT - SUBLEASING. Lessee shall not assign, sublet, underlet,
mortgage, pledge or encumber (collectively referred to as "Transfer") this
lease without Lessor's prior written consent, which consent shall not be
unreasonably withheld. Lessor's refusal to consent to a Transfer for any use or
purpose other than specifically stated in Paragraph 8 herein shall not be
deemed to be an unreasonable withholding of consent.
In the event the Lessee desires to Transfer this lease to a proposed
Transferee to whom Lessor is required to give its reasonable consent pursuant to
the foregoing paragraph, Lessor shall have the option of either (1) allowing
Lessee to transfer this lease, in which case Lessee shall remain primarily
liable upon all the terms, conditions and covenants hereof, will deliver to
Lessor an instrument executed by the Transferee binding the same to the terms
and provisions of this lease and will pay to Lessor the amount by which the sum
of rent, additional rent due to taxes and all other money or consideration it
received from a Transferee exceeds the sum of all monetary obligations which
Lessee owes to Lessor for the period of such Transfer, or (2) terminating this
lease and relieving Lessee of all its future obligations hereunder provided that
upon receipt of written notice from Lessor of Lessee's intention to terminate
the lease, Lessee may withdraw its request for consent in writing within one
week of receipt of such termination notice, in which event this lease shall
continue in full force and effect without any transfer of the same. In the event
of such termination, Lessee shall be relieved of all future obligations
hereunder as of the date of termination. In the event the lease is terminated,
as hereinafter provided, Lessor shall be free to enter into a new lease with the
proposed new tenant or anyone else on whatever terms and conditions it chooses.
Consent by Lessor, whether express or implied, to any Transfer shall not
constitute a waiver of Lessor's right to prohibit any subsequent Transfer, nor
shall such consent be deemed a waiver of Lessor's right to terminate this lease
upon any subsequent Transfer. Moreover, Lessor's acceptance of any name for
listing on any Building directory will not be deemed, nor will it substitute for
Lessor's consent, as required herein, to any sublease, assignment or other
occupancy of the Premises.
As used herein, the term "assign" or "assignment" shall be deemed to
include, without limitation: (a) any transfer of the Lessee's interest in the
lease by operation of law, the merger or consolidation of the Lessee with or
into any other firm or corporation, or (b) the transfer or sale of a
controlling interest in the Lessee whether by sale of its capital stock or
otherwise.
14. 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, now or at any time hereafter, a lien or liens on the property of
which the Premises are a part and the Lessee shall, when requested, promptly
execute and deliver such written instruments as shall be necessary to show the
subordination of this lease to said mortgages, deeds of trust or other such
instruments in the nature of a mortgage.
15. LESSOR'S ACCESS. The Lessor or agents of the Lessor may, at
reasonable times, enter to view the Premises and remove placards and signs not
approved and affixed as herein provided, and make repairs and alterations as
Lessor should elect to do and may show the Premises to others, and at any time
within three (3) months before expiration of the term, may affix to any
suitable part of the Premises a notice for letting or selling the Premises or
property of which the Premises are a part and keep the same so affixed without
hindrance or molestation.
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16. INDEMNIFICATION. The Lessee will save Lessor harmless, defend and
will exonerate and indemnify Lessor, from and against any and all claims,
liabilities or penalties:
(i) on account of or based upon any injury to person, or loss of or damage to
property sustained on or occurring or emanating from the Premises on account of
or based upon the act, omission, fault, negligence or misconduct of any person
except Lessor, its employees, agents and independent contractors.
(ii) on account of or based upon any injury to person, or loss of or damage to
property, sustained on or occurring elsewhere in or about the Building arising
out of the use or occupancy of the Building or Premises by the Lessee or by any
person claiming by, through or under Lessee, except where caused by the act,
omission, fault, negligence or misconduct of Lessor, its employees, agents and
independent contractors.
and in addition to and not in limitation of either of the foregoing
subdivisions (i) and (ii);
(iii) on account of or based upon any work or thing whatsoever done on the
Premises; except where caused by the negligence, fault or misconduct of Lessor,
its employees, agents or independent contractors.
and, in respect of any of the foregoing, from and against all costs, expenses
(including reasonable attorneys' fees), and liabilities incurred in or in
connection with any such claim, or any action or proceedings; and in case any
action or proceeding is brought against Lessor by reason of any such claim,
Lessee upon notice from Lessor shall at Lessee's expense resist or defend such
action or proceeding and employ counsel reasonably satisfactory to Lessor.
17. LESSEE'S INSURANCE
1. Personal Property. All risk (including that of casualty, theft, and
any other harm, damage or loss) to Lessee's personal property and to the
personal property of others held by Lessee, and the loss of use of the same,
shall be borne solely by Lessee. As used herein, personal property includes,
but is not limited to, all tangible and intangible goods and accounts,
inventory, merchandise, fixtures, equipment and systems. Lessee shall purchase
and maintain insurance in an amount adequate to repair or replace or otherwise
cover its personal property (and the personal property of others held or leased
by it or otherwise on the Premises) and the tenant improvements and interior
finish and build-out to the Premises.
Lessee is responsible for the replacement of any broken plate glass
that is part of the Building covered by this lease.
2. Comprehensive Commercial Liability Insurance. Lessee agrees to
maintain throughout the term of the lease, Comprehensive Commercial Liability
Insurance written on an occurrence basis. Such insurance shall include coverage
for product/completed operations, personal injury, broad form property damage,
host liquor, extended bodily injury and broad form contractual liability. The
minimum limit of liability carried on such insurance shall be $1,000,000
combined single limit for each occurrence with any aggregate limit applying
only to each of the following: products/completed operations, personal injury
and contractual liability. However, if the policy contains a general policy
aggregate or an aggregate which applies to coverages other than the
aforementioned coverages, the Lessee shall purchase minimum limits of
$1,000,000 per occurrence/$2,000,000
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aggregate per location.
3. Automobile Liability. Lessee agrees to maintain automobile liability
insurance for owned, non-owned, and hired vehicles. The minimum limit of
liability carried on such insurance shall be ($1,000,000.00) each accident,
combined single limit for bodily injury and property damage.
4. Workers Compensation. Lessee agrees to maintain workers'
compensation insurance providing statutory limits including employer's
liability insurance with current limits of $100,000.00 for each additional
injury and, with respect to bodily injury by disease, $100,000.00 each employee
and $500,000.00 per policy year.
5. Umbrella Liability. Lessee agrees to maintain umbrella liability
coverage with limits of $2,000,000.00 per occurrence. Umbrella coverage is to
apply excess of the comprehensive commercial liability/automobile liability and
employers liability coverages mentioned in section 2, 3, and 4 above.
All insurance policies required in paragraphs 2, 3 and 5 above shall
designate the Lessor and The Xxxxxxxx Company, as additional insureds. Lessee
agrees that the insurance coverages required under sections number 1 through 5
above shall be written by a company or companies authorized to do business in
the Commonwealth of Massachusetts with an A.M. Best's rating of "A-", VII or
better. The liability coverage of the policies specified above in Paragraphs 2
and 5 shall cover all business activities conducted by Lessee at the Premises.
Lessee agrees to furnish the Lessor with Certificates of Insurance
prior to the beginning of the term of the lease. Renewal Certificates of
Insurance shall be delivered to the Lessor at least fifteen (15) days in
advance of each renewal date. Such certificates shall state that in the event
of cancellation of material change written notification shall be given to the
Lessor at least thirty (30) days in advance of such cancellation or material
change. However, if Lessee, having used all reasonable efforts is unable to
have such certificate so state, then at least such certificate shall state that
in the event of such cancellation or material change in coverage, the insurer
shall endeavor to mail written notice thereof to the Lessor at least ten (10)
days prior to such cancellation or material change, and in such event Lessee
shall promptly notify Lessor of any such cancellation or change upon receipt by
Lessee of written notice from the insurer thereof.
18. EMINENT DOMAIN AND DEMOLITION. If the Premises or any part thereof
or the whole or any substantial part of the Building are taken for any street
or other public use, by action of the City or other authorities, or if Lessor
voluntarily elects to demolish the Building or any substantial part of the
Building, except as a consequence of fire or other casualty damage, then this
lease and the term shall terminate at the election of the Lessor. Lessor may
elect so to terminate this lease even if the entire interest of the Lessee is
divested by such a taking. If, as a result of a taking, the Premisses or any
substantial portion thereof, or substantial access thereto, is taken such that
the Premises is rendered unfit for its use, then Lessee may elect to terminate
this lease (effective upon dispossession of the Premises or such substantial
portion or access), and if not terminated or if less than a substantial portion
of the Premises is taken, the rent shall be abated proportionately according to
the nature and extent of the injury sustained by the Premises until the
Premises and access thereto or, in the case of a taking, what may remain
thereof, shall have been restored to a proper and tenantable condition, which
restoration Lessor shall promptly conduct.
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Except for the Lessor's election voluntarily to demolish the Premises
or Building, any election to terminate shall be made by Lessor or Lessee not
later than thirty (30) days after Lessor receives notice of such taking or
action or the occurrence of such damage. The Lessor reserves and excepts from
this lease all rights to damages resulting from the taking for public use of
the Premises or any portion thereof, or right appurtenant thereto, or privilege
or easement in, through, or over the same, and by way of confirmation of the
foregoing the Lessee hereby grants all rights to such damages previously
accrued or accruing during the term to the Lessor, to have and to hold for the
Lessor forever. Solely, in the case of Lessor's election voluntarily to
demolish the Premises or Building as stated above in this Article, Lessor must
give Lessee at least one (1) year prior to termination notice, after which this
lease shall terminate and be of no further recourse to either party except as
to rights and obligations incurred prior to the termination date.
19. FIRE AND OTHER DAMAGE; SUBROGATION
A. Fire and Other Damage - If the Building or any part thereof is
partially damaged by fire or other casualty such that the Premises and the
Building are not rendered substantially untenantable and Lessee is able to
remain open for business, the damage thereto (except for damage to the
Premise's interior finish and build-out and to Lessee's fixtures, property and
equipment, for which Lessee shall be responsible) shall be restored by and at
the expense of Lessor, and until such restoration shall be made, if the
Premises are rendered substantially unfit for its use and purpose, the rent and
other charges shall be subject to an abatement to the extent fair and
equitable, except if such casualty was a result of the willful fault or
negligence of Lessee, in which event there shall be no abatement of rent. Such
restoration shall be made promptly by Lessor subject to delay which may arise
by reason of adjustment of insurance, and for reasonable delay on account
of "labor troubles" or any other cause beyond Lessor's control (excluding
financial inability). Lessor shall not be liable for any inconvenience or
annoyance to Lessee or for injury to the business of Lessee resulting from such
excused delays.
If the Building or the Premises is substantially damaged so as to be
substantially untenantable by fire or other casualty, the rent and other
charges shall be subject to an abatement to the extent fair and equitable as of
the date of the fire or casualty, and continuing until Lessor completes its
restoration obligations hereunder or until the term expires hereunder, except
if such casualty was a result of the willful fault or negligence of Lessee, in
which event there shall be no abatement of rent, and the Lessor shall promptly
restore the same (excluding Lessee's interior finish and build-out and Lessee's
fixtures, property, and equipment), unless Lessor decides not to restore, in
which event the Lessor may, within sixty (60) days, after such fire or other
cause, give Lessee a notice in writing of such decision and thereupon the term
shall expire upon the thirtieth (30th) day after such notice is given, and the
Lessee shall vacate the Premises and surrender the same to the Lessor. If the
Building (excluding Lessee Improvements and Lessee's fixtures, property and
equipment) is not in fact restored by Lessor within six (6) months after the
fire or other casualty, the Lessee may terminate this Lease by written notice
to Lessor within thirty (30) days after the end of the said six (6) month
period.
The provisions of this Article 19 shall govern in the case of damage or
destruction of the Building or any part thereof and restoration thereof due to
a fire or casualty notwithstanding any inconsistent provisions of this Lease.
Notwithstanding anything to the contrary contained in this Article 19,
the provisions hereof shall be subject and subordinate to the rights of
institutions holding mortgages on the Building including the rights contained
in any of Lessor's mortgage financing documents affecting the Building.
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B. Waiver of Subrogation - Lessor and Lessee hereby release each other
from any and all liability or responsibility to the other or anyone claiming
through or under them by way of subrogation or otherwise for any loss or damage
to property caused by fire or any of the extended coverage or supplementary
contract casualties, even if such fire or other casualty shall have been caused
by the fault or negligence of the other party, or anyone for whom such party
may be responsible, and irrespective of whether the releasor carries property
insurance, provided, however, that this release shall be applicable and in
force and effect only to the extent permitted by law and only with respect to
loss or damage occurring during such time as such release does not adversely
affect releasor's property insurance policies (if any) or prejudice the right
of the releasor to recover thereunder. Lessor and Lessee each agree that it
will request its insurance carriers to include in its policies, whether or not
such policies are required hereunder, a clause or endorsement to the effect
that any such release shall not adversely affect said policies or prejudice the
right of releasor to recover thereunder. If extra cost shall be charged, each
party will bear the amount of its extra cost. In any of Lessee's property
insurance policies with respect to the premises which do not contain or which
do not allow a waiver of subrogation rights, Lessee shall have Lessor
designated thereon as an additional insured, and Lessee hereby agrees to
defend, indemnify and hold Lessor harmless from any liability, loss, damage, or
causes of action to which Lessor is subject due to or resulting from Lessee's
failure to either maintain property insurance with waiver of subrogation rights
or alternatively designate Lessor as an additional insured.
20. DEFAULT AND BANKRUPTCY. The following shall constitute a
default by Lessee under this Lease;
(a) The Lessee shall fail to make payment or any installment of rent or
other sum herein specified and such failure shall continue for seven (7) days
after written notice thereof, or
(b) The Lessee shall fail to observe or perform any other of the Lessee's
covenants, agreements or obligations hereunder and such default shall not be
corrected within thirty (30) days after written notice thereof or, if such
default shall reasonably require longer than thirty (30) days to cure, shall
not within said period commence and diligently proceed to cure such default; or
(c) The Lessee shall be declared bankrupt or insolvent according to law if
a receiver shall be appointed to manage Lessee's affairs, or if any assignment
shall be made of Lessee's property for the benefit of creditors,
In the event of a default, the Lessor shall have the right thereafter,
while such default continues to declare this lease ended without prejudice to
any other remedy it may have. Any notice required to be given by Lessor for any
failure of Lessee to pay rent or other sums (prior to said failure being deemed
a default) shall be deemed satisfied by the serving by Lessor on Lessee at the
Premises of a "notice to quit" so long as the same provides Lessee with the
right to cure within at least five (5) days of service.
21. LESSOR'S DEFAULT. Lessor shall not be deemed to be in default
unless such default remains uncured for more than thirty (30) days following
written notice from Lessee specifying the nature of such default, or such longer
period as may be reasonably required to correct such default. Lessor's
liability for maintenance and repair shall always be limited to the cost of
making such repair or accomplishing such maintenance or repair. In no event
shall Lessor be liable for consequential or any indirect damages. The
provisions of this Section are subject to the provisions of Sections 18 and 19
dealing with eminent domain and fire and other casualty.
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22. LESSOR'S REMEDIES. If this lease is terminated as provided in Section
20, Lessee shall forthwith pay to Lessor all sums which were due prior to the
date of such termination and Lessee shall pay on the days originally fixed
herein for the payment thereof amounts equal to the several installments of
rent, adjusted rent, additional rent and any and all other charges as they
would have become due if this lease had not been terminated.
As a second alternative, at the election of Lessor, Lessee will, at the
time of such termination, pay to Lessor, as liquidated damages, the amount of
the excess, if any, of the present value at the time of termination of the
total rent and other benefits which would have accrued to Lessor under this
lease over and above the fair market rental value (in advance) of the Premises
for the balance of the term. For the purpose of this paragraph, the total rent
shall be computed by assuming that Lessee's Share of real estate taxes,
operating costs and other charges would be the amount thereof (if any) for the
immediately preceding year of the term.
As a third alternative, upon any such termination, at Lessor's
election, Lessor shall have the right to declare all installments of rent,
additional rent and other charges payable hereunder for the next one (1) full
year to be immediately due and payable as liquidated damages and not as a
penalty.
In addition to the foregoing (and whether or not the Lease is
terminated upon a default), Lessee agrees (i) to indemnify and save Lessor
harmless from and against all expenses together with interest at the rate of
1.5% per month which Lessor may incur in collecting such amount or in
obtaining possession of, or in re-letting the Premises, or in defending any
action arising as a result of or in connection with a default, including,
without limitation, legal expenses, attorneys' fees, brokerage fees, and the
cost of putting the Premises in good order or preparing the same for rental;
(ii) that Lessor may re-let the Premises or any part or parts thereof, either
in the name of Lessor or otherwise or a term or terms which may, at Lessor's
option, be less than or exceed the period which would otherwise have
constituted the balance of the term and may grant concessions or free rent for
a reasonable time. The failure of Lessor to re-let the premises or any part
thereof shall not release or affect Lessee's liability for damage. Any suit
brought to collect the amount of deficiency for any month shall not prejudice
the right of Lessor to collect the deficiency for any subsequent month by a
similar proceeding. Lessor may make such alterations, repairs, replacements and
decorations on the Premises which in Lessor's sole judgement are advisable or
necessary for the purpose of re-letting the Premises, and the making of such
alterations or decorations shall not release Lessee from any liability. In the
event the Premises are re-let by Lessor, Lessee shall be entitled to a credit
in the net amount of rent received by Lessor, after deduction of all expenses
incurred in connection with Lessee's default, re-letting the Premises and in
collecting the rent, except in the event Lessor has chosen the second or third
alternative as a remedy in which event Lessee shall not be entitled to any
credit.
Lessee further agrees that, if on the Expiration Date or other
termination date, Lessee does not surrender the Premises or fails to remove any
of its property from the Premises and Lessor obtains an order of eviction then
Lessor may enter the Premises for the purpose of removing Lessee's goods and
effects, without prejudice to any other remedies, and Lessor may remove and
store such goods and effects at Lessee's expense, Lessee hereby granting Lessor
an irrevocable power of attorney to accomplish same.
23. NOTICE. Any notice from the Lessor to the Lessee relating to
the Premises or to the occupancy thereof, shall be deemed duly served if left
at the Premises by constable addressed to the Lessee, or if mailed to the
Premises, registered or certified mail, return receipt requested, postage
prepaid or if delivered by a national
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commercial express delivery service, addressed to the Lessee. Any notice from
the Lessee to the Lessor relating to the Premises or to the occupancy thereof,
shall be deemed duly served, if mailed to the Lessor by registered or certified
mail, return receipt requested, postage prepaid, or if delivered by a national
commercial express delivery service addressed to the Lessor at such address as
the Lessor may from time to time advise in writing. All rent shall be paid and
notices shall be sent to the Lessor at 00 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
24. SURRENDER. The Lessee shall at the expiration or other
termination of this lease remove all Lessee's goods and effects from the
Premises, (including, without hereby limiting the generality of the foregoing,
all signs and lettering affixed or painted by the Lessee, either inside or
outside the Premises). Lessee shall deliver to the Lessor the Premises and all
keys, locks thereto, and other fixtures connected therewith and all alterations
and additions made to or upon the Premises, in good condition, damage by fire
or other casualty only excepted. If the lease term terminates by acceleration
or expiration of time and Lessee does not surrender the Premises and remove his
effects from the Premises, and Lessor obtains an order of eviction from a
court, then Lessor may enter the Premises for the purpose of removing Lessee's
goods and effects, without prejudice to any other remedies, and Lessor may
remove and store such goods and effects at Lessee's expense, Lessee hereby
granting Lessor an irrevocable power of attorney to accomplish the same.
25. BROKERAGE. Lessor and Lessee each warrant and represent that
it has not negotiated with any broker (other than Xxxxxxx Xxxxxxxxxx of X.X.
Xxxxxxx and Xxxxxx Xxxxxxx of The Xxxxxxxx Company) in connection with this
lease and each party agrees to indemnify and hold the other party harmless if
such warranty or representation shall be deemed untrue.
26. HOLDOVER. If the Lessee remains on the Premises beyond the
expiration or earlier termination of this lease, such holding over shall not be
deemed to create any tenancy at will, but the Lessee shall be a tenant at
sufferance only, at a daily rate equal to three (3) times the daily rent and
other charges for the last year under this lease. However, all other conditions
of this lease to be performed by Lessee shall continue in force.
27. LIABILITY. Lessee hereby agrees that any judgment, decree or
award obtaining against the Lessor which is related to this lease, the Premises
or the Lessee's use or occupancy of the Premises or the building, whether at law
or in equity, shall be satisfied out of the Lessor's equity in the land and
building, and further agrees to look only to such assets and to no other assets
of the Lessor for satisfaction. Lessor's liability for maintenance and repair
shall always be limited to the cost of making such repair or accomplishing such
maintenance or repair. In no event shall Lessor be liable for consequential or
any indirect damages.
28. NON-WAIVER PROVISION. No acceptance by Lessor of a lesser sum
than the rent, additional rent or any other charge then due shall be deemed to
be other than on account of the earliest installment of such rent or charge
due, nor shall any endorsement or statement on any check or any charge be
deemed an accord and satisfaction, and Lessor may accept such check or payment
without prejudice to Lessor's right to recover the balance of such installment
or pursue any other remedy provided in this lease.
29. LESSOR'S RULES AND REGULATIONS. Lessee shall abide by any
reasonable rules and regulations as the Lessor may make from time to time,
applicable to all Lessees of the Building and uniformly enforced. The Lessor,
however, may change said rules or waive any or all of said rules in the case of
any one or more Lessees. Nor shall the Lessor be responsible to the Lessee, or
to the Lessee's agents, employees, servants, licensees, invitees, or visitors,
for failure to enforce any of the rules and regulations or for the
non-observance or
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violation of any of said rules and regulations by any other Lessee or by any
other person, or for the nonobservance or violation of or failure to enforce or
to perform the provisions of any other lease of any part of the Building.
Notwithstanding the foregoing, however, Lessor shall use its best efforts to
apply the rules and regulations to all Lessees with reasonable uniformity in
conformity with their tenancies.
30. NO OFFER TO LEASE. The submission of this document for
examination and negotiation does not constitute an offer to lease, or a
reservation of, or option for, the Premises. This document shall become
effective and binding only upon the execution and delivery hereof by Lessor and
by Lessee, and until such execution and delivery, Lessor shall not in any way
be bound to enter into a lease with Lessee for the Premises.
31. PARTIAL INVALIDITY. The invalidity of one or more phrases,
sentences, clauses or articles shall not affect the remaining portions of this
lease, and if any part of this lease should be declared invalid by the final
order, decree or judgment of a court of competent jurisdiction, this lease
shall be construed as if such invalid phrases, sentences, clauses or articles
had not been inserted.
32. ENTIRE AGREEMENT. This lease sets forth the entire agreement
between the parties and cannot be modified or amended except in writing duly
executed by the respective parties.
33. NO RECORDING. This lease shall not be recorded.
34. ADDENDA. The Addenda attached hereto numbered 1 through 4 are
attached and incorporated herein by reference.
35. TRUSTEE AS LESSOR. If the Lessor is a trust or a trustee or
trustees, it is agreed that no trustee nor any beneficiary under any agreement
or declaration of trust under which said trust exists or by virtue of which
such trustees act, shall be personally liable under any of the covenants or
agreements of the parties expressed herein or implied hereunder, or otherwise
because of anything arising from or connected with the use and occupation of
the demised Premises by the Lessee, and the parties agree that any and all
claims arising or accruing to them hereunder shall be enforced and satisfied
only against the assets and property of said trust and not in any case against
said trustees or any of them or their successors in trust individually.
36. AUTHORITY. If Lessee is a corporation, each person executing this
Lease on behalf of the Lessee hereby covenants, represents and warrants that
Lessee is a duly incorporated or duly qualified (if foreign) corporation and is
authorized to do business in the Commonwealth of Massachusetts (a copy of
evidence thereof to be supplied to Lessor upon request); and that each person
executing this Lease on behalf of Lessee is an officer of Lessee and that he or
she is duly authorized to execute, acknowledge and deliver this Lease to Lessor
(a copy of a resolution to that effect to be supplied to Lessor upon request).
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IN WITNESS WHEREOF, the said parties hereunto set their hands and seals
this _________________________ day of _______________________, 19 __.
LESSOR: XXXXX X. XXXXX AND XXXX X. XXXXX AS TRUSTEES
OF MASSACHUSETTS 955 REALTY TRUST FOR THE BENEFIT
OF 955 MASS. AVE. ASSOCIATES
BY: ______________________________________________
Xxxxx X. Xxxxx as Trustee and Not Individually
BY: ______________________________________________
Xxxx X. Xxxxx as Trustee and Not Individually
ADDRESS: 00 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000
LESSEE: RENAISSANCE COSMETICS, INC.
BY: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxx, President
ADDRESS: 000 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
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ADDENDUM #1: RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Lessee or used for any purpose other than for ingress to and egress from
the Premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery
by Lessor. There shall not be used in any space, or in the public hall of the
building, either by a Lessee or by jobbers or others in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
sideguards. If the Premises are situated on the ground floor of the Building,
Lessee thereof shall further, at Lessee's expense, keep the sidewalks and curb
in front of said Premise clean and free from ice, snow, dirt and rubbish.
2. The water and wash closets and plumbing fixtures shall not be used
for any purpose other than those for which they were designed or constructed
and no sweepings, rubbish, rags, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting from
the violation of this rule shall be borne by the Lessee who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No Lessee shall sweep or throw or permit to be swept or thrown from
the Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the Building and
Lessee shall not use, keep or permit to be used or kept any foul or noxious gas
or substance in the Premises or permit or suffer the Premises to be occupied or
used in a manner offensive or objectionable to Lessor or other occupants of the
Building by reason of noise, odors and/or vibrations, or interfere in any way
with other Lessees or those having business therein, nor shall any animals or
birds be kept in or about the Building. Smoking or carrying lighted cigars or
cigarettes in the elevators of the Building is prohibited.
4. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of Lessor.
5. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Lessee on any part of the
outside of the Premises or the Building or on the inside of the Premises if the
same is visible from the outside of the Premises without the prior written
consent of Lessor, except that the name of Lessee may appear on the entrance
door of the Premises. In the event of the violation of the foregoing by any
Lessee, Lessor may remove same without any liability, and may charge the
expense incurred by such removal to Lessee or Lessees violating this rule.
Interior signs on doors and directory tablet shall be inscribed, painted or
affixed for each Lessee by Lessor at the expense of such Lessee, and shall be
of a size, color and style acceptable to Lessor.
6. Except with prior written consent of Lessor and as Lessor may
direct, no Lessee shall xxxx, paint, drill into, or in any way deface any part
of the Premises or the Building of which they form a part or cut or string
wires, lay linoleum, or other similar floor covering, so that the same shall
come in direct contact with the floor of the Premises, and, if linoleum or
other similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive
material being expressly prohibited.
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7. Except with the prior written consent of Lessor, no additional locks
or bolts of any kind shall be placed upon any of the doors or windows by any
Lessee, nor shall any changes be made in existing locks or mechanism thereof.
If requested, Lessee shall provide Lessor with a copy of a key for all new
locks or bolts. Each Lessee shall, upon the termination of his tenancy, restore
to Lessor all keys either furnished to or otherwise procured by, such Lessee. In
the event of the loss of any keys furnished to Lessee, Lessee shall pay to
Lessor the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the Premises only on
the freight elevators and through the service entrances and corridors or in an
alternative way approved by Lessor and only during hours and in a manner
approved by Lessor.
9. Canvassing, soliciting and peddling in the Building is prohibited
and each Lessee shall cooperate to prevent the same.
10. Lessor shall have the right to prohibit any advertising by any
Lessee which, in Lessor's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written notice
from Lessor, Lessee shall refrain from or discontinue such advertising.
11. Except for those items necessary for the cleaning and maintenance
of Lessee's business, including office supplies, which shall be property stored
to minimize the risk of fire and explosion, Lessee shall not bring or permit to
be brought or kept in or on the Premises, any inflammable, combustible or
explosive fluid, material, chemical or substance, or cause or permit any odors
of cooking or other process, or any unusual or other objectionable odors to
permeate in or emanate from the Premises.
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ADDENDUM #2: LESSOR'S IMPROVEMENTS
Prior to the Commencement Date, Lessor shall make renovations and improvements
to the Premises according to the plans and specifications to be attached hereto
as an exhibit and initialed by both Lessor and Lessee. These renovations shall
be made in compliance with all applicable laws and governmental regulations and
at Lessor's expense unless otherwise agreed.
These renovations and improvements shall consist of the following:
(a) See Plans Attached.
Lessor shall provide Lessee with plans for these improvements at its earliest
possible convenience solely for the purpose of Lessee's information.
In the case of any delay in connection with the improvements and renovations,
the Commencement Date shall be extended as provided in Article 3 herein for the
period of such delays as provided in Article 3 herein unless Lessor and Lessee
agree that Lessee can occupy the Premises prior to substantial completion at a
rent to be agreed upon. Provided, however, in such event, Lessee shall not use
the Premises in such manner as will increase the cost of completion and agrees
that it shall pay Lessor an amount equal of 1/365th of the Minimum Rent for any
delay caused by Lessee or anyone employed by it, for each day of such delay.
Under no circumstances whatsoever shall Lessor be liable to Lessee for any
indirect or consequential damage caused by such delay.
Aside from those improvements specifically enumerated above, Lessee accepts
Premises "as is".
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ADDENDUM #3: OPTION TO EXTEND AT MARKET
Lessee, having at all times faithfully performed all of the terms and
conditions of this lease such that Lessor has not sent to Lessee more that one
(1) written notice pursuant to Section 20 of this Lease during any Lease Year
during the original term, and not being in default, shall have the option to
extend this lease under the same terms and conditions of this lease except for
rent, adjustments to rent, and tax clause, and except for this one (1) option,
for five (5) years, provided Lessee complies with the provisions stated below:
The time periods herein set forth are of the essence, and the requirements for
the exercise of this option shall be strictly construed.
a. Upon Lessor's receipt of written notice, sent by certified mail return
receipt requested, from Lessee that Lessee wishes to extend on or before six
(6) months prior to the Expiration Date (which time period is deemed of the
essence), Lessor shall, within (30) days of such notice by the Lessee, notify
the Lessee of the proposed minimum rent, adjusted rent and additional rent due
to taxes for the extension term.
b. Within thirty (30) days after receipt of Lessor's proposed terms, Lessee
will notify Lessor in writing either of its acceptance of the proposed terms,
or of its rejection of the proposed terms. Lessor's failure to receive Lessee's
written notice within the prescribed period shall be deemed a rejection.
c. After Lessee's rejection of Lessor's proposal for an extension term, if
Lessor receives a bona fide offer from a new Lessee for a new lease for the
Premises (which may include additional space in the Building) on rent terms
less favorable to Lessor which Lessor intends to accept, Lessee shall have a
"right of refusal" to enter into an extension with Lessor upon the same rent
terms set forth in the proposed lease with such bona fide new tenant, provided
Lessee executes an extension agreement within five (5) days of Lessee's receipt
of such a proposed extension agreement from Lessor. In the event that Lessor
receives a bona fide offer on rent terms the same or more favorable to Lessor,
Lessor shall not be obligated to offer Lessee a "right of first refusal".
d. If, for whatever reason, Lessee has not in fact extended this lease within
the period ending thirty (30) days before the Expiration Date, this option
shall expire and Lessee shall have no further right to extend its tenancy
beyond the Expiration Date. In this event Lessor shall be free to rent the
Premises to whomever it chooses, on any terms it chooses, free and clear of
this option.
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ADDENDUM #4: OPERATING EXPENSES
Lessee shall pay to Lessor as additional rent Lessee's proportionate share of
any increase in annual Operating Expenses for the Building over the base of the
actual Operating Expenses for calendar year 1995 within ten (10) days of
notification after the end of each calendar year or any portion thereof. Lessor
shall furnish to Lessee a statement showing the total Operating Expenses for the
Premises for the year just ended and Lessee's share thereof. Lessee shall pay to
Lessor the amount of Lessee's share of such expenses within ten (10) days after
receipt of the statement. Lessee's share of Lessor's Operating Expenses for the
Premises is hereby defined to be that proportion of such expenses which rentable
floor space within Lessee's Premises bears to the total rentable floor space of
the Building which is hereby calculated to be two and four thousand five hundred
and seventeen ten-thousandths (2.4517%) percent of the total Operating Expenses.
Lessor's standard "Operating Expenses" at the Building shall include any and all
costs of any kind, paid or incurred by Lessor in connection with the operation
of the property, including without limitation, all expenses incurred in
operating, managing, cleaning, equipping, protecting, lighting, decorating,
repairing, replacing and maintaining the Premises and Building. The costs shall
include, without limitation, insurance, management fees, elevator repairs and
services, janitorial services, rubbish removal, snow plowing of drives and
parking lots, maintenance of roadways, walks and parking and loading areas,
fertilization, mowing and watering of lawns, care of shrubbery and general
grounds upkeep and the cost of utilities for provision of Common Area services
(such as but not limited to parking lot lighting, common area lighting, heating
and air conditioning, security systems and property identification sign).
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