Massachusetts-Westboro-80 Turnpike Road Lease - Otari Manufacturing Corp. and NE Restaurant Co. Inc.
Lease
by and between
OTARI MANUFACTURING CORPORATION
Landlord
and
NE RESTAURANT COMPANY, INC.
Tenant
Dated September 30, 1997
Premises at 80 Turnpike Road, Westboro, Massachusetts
LEASE AGREEMENT
ARTICLE I
REFERENCE DATA
1.1 SUBJECTS REFERRED TO.
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Section 1.1.
Brokers: Peter Elliot LLC ("Peter Elliot") and Parsons Commercial Group,
Inc. ("Parsons").
Commencement Date: The earlier of (a) 45 days after the obtaining of all
permits specified in Section 3.2 hereof or (b) the substantial completion of all
Tenant Improvements and Landlord Improvements as specified in Section 3.1 and
Section 3.2 hereof, respectively (SO AS TO ENABLE TENANT TO OBTAIN CERTIFICATE
OF OCCUPANCY).
Fixed Rent: $73,500 ($5.25 per rentable square foot) per annum payable in
twelve (12) equal monthly installments of $6,125 each, during each of the first
five (5) years of the Initial Term. $87,500 ($6.25 per rentable square foot) per
annum payable in twelve (12) equal monthly installments of $7,291.67 each,
during each of the sixth through the tenth year of the Initial Term. The Fixed
Rent during the Renewal Terms will be negotiated at the end of the Initial Term
of the Lease.
Initial Term: Ten (10) years.
Landlord: Otari Manufacturing Corporation.
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Landlord Improvements: As set forth in Section 3.1.
Lease: Shall mean this Lease.
Original Address of Landlord: Otari Manufacturing Corporation, c/o Otari
Corporation, 378 Vintage Park Drive, Foster City, California 94404.
Original Address of Tenant: NE Restaurant Company, Inc., 300 Pond Street,
Randolph, MA 02368 Attention: Paul V. Hoagland
Permitted Uses: Office space.
Premises: That certain approximately 14,000 square feet of rentable area on
the second floor of a building (the "Building") located on the lot (the "Lot",
together with the Building, the "Property"). The Lot is described on Exhibit A
and the Property is known as 80 Turnpike Road, Westboro, MA.
Public Liability Insurance Limits (per occurrence):
Bodily Injury: $1,000,000, or greater amount reasonably required by
Landlord from time to time.
Property Damage: $1,000,000, or greater amount as reasonably required by
Landlord from time to time.
Renewal Terms: Two (2) consecutive three (3) year optional renewal terms
beginning at the expiration of the Initial Term.
Security Deposit: $6,125.00
Tenant: N.E. Restaurant Company, Inc.
Tenant Improvements: As set forth in Section 3.2.
Term: Shall mean collectively, the Initial Term and the Renewal Terms (if
applicable), or any of them as the context may require.
1.2 EXHIBITS.
The Exhibits listed below in this Section are incorporated in this
Lease by reference and are to be construed as a part of this Lease:
EXHIBIT A: Lot
ARTICLE II
PREMISES AND TERM
2.1 PREMISES. Landlord hereby leases and demises to Tenant and Tenant
hereby leases from Landlord, subject to any and all existing encumbrances,
conditions, covenants, easements, restrictions, rights of way and other matters
of record including, without limitation, driveway easements over the Property
for the benefit of 78, 8OB and 82 Turnpike Road and to such matters as may be
disclosed by inspection or survey and subject to and with the benefit of the
terms, covenants, conditions and provisions of this Lease, the Premises.
2.2 TERM. TO HAVE AND TO HOLD for an Initial Term beginning on the
Commencement Date and terminating on the day prior to the tenth anniversary of
the Commencement Date, unless sooner terminated as hereinafter provided.
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2.3 OPTION TO EXTEND TERM. So long as Tenant is not in default under
Article 7 beyond the applicable grace periods set forth in Article 7, Tenant may
extend the Term of this Lease for two (2) extension periods of three (3) years
each, (each, a "Renewal Term") by giving notice to Landlord of its election to
extend at least six (6) months in advance of the commencement of the applicable
Renewal Term. Except as otherwise hereinafter set forth, all terms and
conditions of this Lease shall remain in full force and effect with respect to
each such Renewal Term, provided, however, that Tenant shall be entitled to no
further right to extend the Term of this Lease. With respect to each such
Renewal Term, Fixed Rent shall be increased to the fair market rent of the
Premises taking into account the Landlord Improvements but not the Tenant
Improvements for such period (further taking into account the fact that the base
amounts applicable to the computation of Additional Rent under Section 4.2 are
not to be modified). In the event that the parties have not mutually agreed upon
said fair market rent in writing within thirty (30) days following Tenant's
exercise of the applicable option, the same shall be determined by appraisers,
one to be chosen by Landlord, one to be chosen by Tenant and a third to be
selected by the two first chosen. All appraisers chosen or selected thereunder
shall be independent of the parties, shall have received the M.A.I. (Member,
Appraisal Institute) designation from the American Institute of Real Estate
Appraisers and shall have had at least five (5) years of experience in
appraising commercial office space comparable to the Premises. The unanimous
written decision of the two first chosen, without selection and participation of
a third appraiser, or otherwise the written decision of a majority of the three
appraisers chosen and selected as aforesaid, shall be conclusive and binding
upon Landlord and Tenant. Landlord and Tenant shall each notify the other of its
chosen appraiser within fifteen (15) days following expiration of the aforesaid
thirty (30) day period and, unless such two appraisers shall have reached a
unanimous decision within forty-five (45) days from said expiration they shall
within a further fifteen (15) days elect a third appraiser and notify Landlord
and Tenant thereof. Landlord and Tenant shall each bear the expense of the
appraiser chosen by it and shall equally bear the expense of the third appraiser
(if any).
If, as contemplated by this Section, Fixed Rent with respect to any Renewal
Term shall not have been determined prior to commencement of such Renewal Term,
then said Renewal Term may commence, and from and after such date until the
amount of such Fixed Rent is determined. Tenant shall make payments of Fixed
Rent at the current rates then applicable, subject to retroactive adjustment in
conformity with and within thirty (30) days of the determination of Fixed Rent
pursuant to this Section. In no event shall the determination of Fixed Rent
pursuant to this Section result in a reduction thereof or any modification of
the base amounts applicable to the computation of Additional Rent under Section
4.2.
ARTICLE III
PREPARATION OF THE PREMISES
3.1 PREMISES LEASED AS-IS; WHERE IS; TENANT IMPROVEMENTS. "Landlord has
leased the Premises to Tenant in their "as-is" and "where is" condition as of
the Commencement Date, and Landlord shall have no further obligations during the
term of this Lease to renovate, repair or maintain the Premises or any portion
thereof. Notwithstanding the foregoing, Landlord agrees to (a) do the following,
at its own expense, prior to the Commencement Date (collectively, "Landlord
Improvements"): (i) remove all Landlord's personal property from the Premises,
(ii) repave and reline the parking area, upgrade the landscaping of the Property
and provide all necessary and sufficient base heating, air conditioning,
electrical, sprinkler, water and sewer systems for the proper use and operation
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of the Premises, (iii) ensure that the building is in compliance with all
applicable provisions of the Americans with Disabilities Act ("ADA") and (iv)
obtain the special permit and/or variance required for Tenant's use of the
Premises, and (b) at its sole cost and expense, during the Term of the Lease, be
responsible for any and all work done on the Building facade. Landlord shall use
reasonable efforts to achieve substantial completion of Landlord Improvements on
or before November 1, 1997. Tenant acknowledges that this Lease is on an
"absolutely net" basis and that all obligations to renovate, repair or maintain
the Premises or any portion thereof shall be performed by Tenant, at its sole
cost and expense, subject to the qualifying provisions of Sections 5.1.3, 5.1.4
and 5.15 of this Lease. Furthermore, and in specific recognition of Tenant's
obligations to so maintain and repair the Premises, Tenant waives the provisions
of any statute or regulation or judicial decision which under the laws of the
Commonwealth of Massachusetts may require Landlord to maintain the Premises in a
tenantable condition and to make repairs for such purpose or which may permit
Tenant to make such repairs and deduct the expenses of such repairs from the
payment of any rent.
3.2 TENANT IMPROVEMENTS. Commencing on the date of execution of this
Agreement and prior to the Commencement Date, Tenant will, at its sole cost and
expense, build-out the Premises per its specific requirements which shall
include, without limitation, the installation of windows on the exterior walls
of the Premises ("Tenant Improvements"). The Tenant Improvements shall be
subject to the prior written approval of the Landlord based on Landlord's review
of Tenant's plans and specifications for the Tenant Improvements, which approval
shall not be unreasonably withheld or delayed. Tenant shall use reasonable
efforts to achieve substantial completion of Tenant Improvements on or before
November 1, 1997. Landlord, where necessary, will join with the Tenant in
applying for all permits required by law, building, occupancy or otherwise
("Permits"); provided, however, that all costs incurred in connection with the
applying for and obtaining the Permits shall be borne solely by the Tenant.
Tenant shall have the right to enter on to the premises, commencing on the date
of execution of this Agreement and prior to the Commencement Date for the
purpose of undertaking the Tenant Improvements. However, prior to doing so,
Tenant shall take out and maintain during such period comprehensive liability
insurance indemnifying Landlord and Tenant against all claims and demands for
any injury to person or property which may be claimed to have occurred on the
Premises, in amounts which shall be at least equal to the limits set forth in
Section 1.1.
3.3 TENANT'S WORK. After the Commencement Date, Tenant may make additional
modifications, installations, alterations or additions in, to or on the Premises
to accommodate the operation of its business thereon all at the sole cost and
expense of Tenant, however, no such modification, installation, alteration or
addition (collectively, the "Modifications") shall be undertaken by Tenant
unless Tenant complies with the following conditions:
(a) Tenant shall receive Landlord's prior written approval before Tenant
undertakes any Modifications that could have an effect on the structure of the
Building or any of the systems in the Building (including, without limitation,
the plumbing and HVAC systems), which approval shall not be unreasonably
withheld or delayed;
(b) All Modifications shall be performed subject to all Requirements for
Tenant's Work set forth in Section 5.1.5 of this Lease; and
(c) Landlord may require the preparation, at Tenant's sole cost and
expense, of architectural plans, construction drawings, written specifications
and any other necessary background materials for any Modifications with a cost
of greater than $25,000 and Landlord shall have sufficient time to review such
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materials prior to approving or disapproving any such Modifications.
ARTICLE IV
RENT
4.1 THE FIXED RENT. Tenant covenants and agrees to pay to Landlord at the
Original Address of Landlord or at such other place or to such other person or
entity as Landlord may by notice to Tenant from time to time direct, the Fixed
Rent, as set forth in Article 1, in advance, on the first day of each calendar
month included in the Term of the Lease, commencing with the payment of the
Fixed Rent for the first month on the Commencement Date.
4.2 ADDITIONAL RENT. In order that the Fixed Rent shall be absolutely net
to Landlord, Tenant covenants and agrees to pay, as Additional Rent, its
pro-rata share of taxes, municipal or state betterment assessments, insurance
costs and utility charges with respect to the Property as follows:
4.2.1 REAL ESTATE TAXES. Tenant shall pay, directly to Landlord: (i)
its pro-rata share of all taxes, assessments (special or otherwise), levies,
fees, water and sewer rents, and all other government levies and charges,
general and special, ordinary and extraordinary, foreseen and unforeseen, which
are, at any time during the Term hereof, imposed or levied upon or assessed
against (A) the Property, (B) any Fixed Rent, Additional Rent or other sum
payable hereunder, provided, however, that Tenant shall not be required to pay
any of Landlord's income taxes, estate, succession or inheritance taxes, or (C)
this Lease, or the leasehold estate hereby created, or which arise in respect of
the operation, possession or use of the Premises; (ii) all gross receipts or
similar taxes imposed or levied upon, assessed against or measured by any Fixed
Rent, Additional Rent or other sum payable hereunder; (iii) all sales, value
added, use and similar taxes at any time levied, assessed or payable on account
of the acquisition, leasing or use of the Premises; and (iv) all charges for
utilities furnished to the Premises which may become a lien on the Property
(collectively "taxes and assessments" or if singular "tax or assessment"). For
each tax or assessment period, or installment period thereof included in the
Term, all such payments shall be made by Tenant not less than fifteen days prior
to the last date on which the same may be paid without interest or penalty. For
any fraction of a tax or assessment period, or installment period thereof,
included in the Term at the beginning or end thereof, Tenant shall pay to
Landlord, within ten (10) days after receipt of invoice therefor, the fraction
of taxes and assessments so levied or assessed or becoming payable which is
allocable to such included period.
Nothing contained in this Lease shall, however, require Tenant to pay any
of Landlord's income taxes, estate, succession or inheritance taxes. Landlord
shall furnish to Tenant a copy of any notice of any public, special or
betterment assessment received by Landlord concerning the Property.
4.2.2 INSURANCE.
4.2.2.1 INSURANCE TAKEN OUT BY TENANT. Tenant shall, as
Additional Rent, take out and maintain throughout the Term the following
insurance:
(a) Comprehensive liability insurance indemnifying Landlord and Tenant
against all claims and demands for any injury to person or property which may be
claimed to have occurred on the Premises, in amounts which shall, at the
beginning of the Term, be at least equal to the limits set forth in Section 1.1,
and, from time to time during the term, shall be for such higher limits, if any,
as are reasonably required by Landlord; and
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(b) Worker's compensation insurance with statutory limits covering all of
Tenant's employees working at the Premises.
4.2.2.2 INSURANCE TAKEN OUT BY LANDLORD. Landlord shall take out
and maintain throughout the Term all risk fire and casualty insurance on a
replacement value, agreed amount basis, comprehensive liability insurance
indemnifying Landlord against all claims and demands for any injury to person or
property which may be claimed to have occurred on the side walk or ways
adjoining the Building and in the common areas of the Building, and boiler
insurance in the so called "broad form", in such amounts as Landlord may
consider appropriate, and insurance against such other hazards and in such
amounts as may from time to time be required by any bank, or other lending
institution holding a mortgage on the Premises.
Landlord shall have no obligation to insure Tenant's personal property or
chattels, including without limitation, Tenant's trade fixtures.
4.2.2.3 TENANT REIMBURSEMENT OF INSURANCE TAKEN OUT BY LANDLORD.
Tenant shall from time to time reimburse Landlord within thirty days of
Landlord's invoice of Landlord's costs incurred in providing the insurance
described in Section 4.2.2.2 of this Lease, equitably prorated in the case of
blanket policies to reflect the insurance coverage reasonably attributable to
the Premises, and Tenant shall also reimburse Landlord for all of Landlord's
costs incurred in providing such insurance which is attributable to any special
endorsement or increase in premium resulting from the business or operations of
Tenant, and any special or extraordinary risks or hazards resulting therefrom.
4.2.2.4 CERTAIN REQUIREMENTS APPLICABLE TO INSURANCE POLICIES.
Policies for insurance provided for under the provisions of Sections 4.2.2.2
shall, in case of loss, be first payable to the holders of any mortgages on the
Premises under a standard mortgagee's clause, and shall be deposited with the
holder of any mortgage or with Landlord, as Landlord may elect. All policies for
insurance required under the provisions of Section 4.2.2.1 shall be obtained
from responsible companies qualified to do business in the Commonwealth of
Massachusetts and in good standing therein, which companies and the amount of
insurance allocated thereto shall be subject to Landlord's approval. Tenant
agrees to furnish Landlord with copies of policies (or insurance company
certificates thereof if the policy has not been issued by the insurer, provided
that a copy of such policy shall be furnished to Landlord as soon as the same is
issued) of all such insurance which Tenant is obligated to obtain pursuant to
Section 4.2.2.1 prior to the beginning of the Term hereof and of each renewal
policy at least thirty (30) days prior to the expiration of the policy it
renews. Each such policy shall be noncancellable with respect to the interest of
Landlord and such mortgagees without at least thirty (30) days' prior written
notice thereto.
If requested by Tenant, Landlord shall provide Tenant with certificates
evidencing Landlord's insurance policies.
4.2.2.5 WAIVER OF SUBROGATION. All insurance which is carried by
either party with respect to the Property or to furniture, furnishings, fixtures
or equipment on the Premises or alterations or improvements thereto, whether or
not required, shall include provisions which either designate the other party as
one of the insured or deny to the insurer acquisition by subrogation of rights
of recovery against the other party to the extent such rights have been waived
by the insured party prior to occurrence of loss or injury, insofar as, and to
the extent that such provisions may be effective without making it impossible to
obtain insurance coverage from responsible companies qualified to do business in
the Commonwealth of Massachusetts (even though extra premium may result
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therefrom) and without voiding the insurance coverage in force between the
insurer and the insured party. Each party shall be entitled to have duplicates
or certificates of any policies containing such provisions. Each party hereby
waives all rights of recovery against the other for loss or injury against which
the waiving party is protected by insurance containing said provisions,
reserving, however, any rights with respect to any excess of loss or injury over
the amount recovered by such insurance.
4.2.3 UTILITIES. Except as otherwise required in Section 4.2.1(iv),
Tenant shall pay to Landlord its pro-rata share of all charges for water, sewer,
gas, electricity, telephone, heating, venting, air conditioning and other
utilities or services used or consumed on the Property, whether called charge,
tax, assessment, fee or otherwise, including, without limitation, water and
sewer use charges and taxes, if any, all such charges to be paid as the same
from time to time become due.
4.2.4 COMMON AREA MAINTENANCE. Tenant shall pay its pro-rata share of
the actual operating costs for the Property on a quarterly basis. Landlord shall
bill Tenant for such pro rata share Operating expenses shall include common area
maintenance (landscaping, snowplowing, trash removal, etc.), insurance and
common area utilities. Any operating expenses paid by the Tenant pursuant to
this Section, other than on an annual basis, shall be reconciled annually by
Landlord and shall be subject to an audit by Tenant for up to 90 days after such
annual reconciliation. Such audit shall be conducted at the sole cost and
expense of the Tenant. However, Landlord agrees, at its own expense, to keep in
good order, condition and repair, and to replace as necessary, the common areas
of the Building, structural portions such as the roof and exterior walls, the
mechanical systems, HVAC, plumbing, electrical, elevator and other building
systems, excluding, however, any windows installed by Tenant. Landlord shall in
no event be responsible to Tenant for any condition in the Premises or the
Building caused by any act or neglect of Tenant or any contractor, agent,
employee or invitee of Tenant, or anyone claiming by, through or under Tenant.
Landlord shall not be responsible to make any improvements or repairs to the
Building or the Premises other than as expressed in this Section unless
otherwise expressly provided in this Lease.
4.3 SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord $6,125 as a Security Deposit for the performance by Tenant of the
provisions of this Lease. If Tenant is in default, Landlord may use the Security
Deposit or any portion of it, to cure the default or to compensate Landlord for
all damage sustained by Landlord resulting from Tenant's default. Tenant shall
immediately on demand pay Landlord a sum equal to the portion of the Security
Deposit expended or applied by Landlord as provided in this Section 4.3 so as to
maintain the Security Deposit in the sum initially deposited with Landlord. As
soon as reasonably practicable upon the expiration or earlier termination of
this Lease, Landlord shall (i) inspect the Premises, (ii) make such payments
from the Security Deposit as may be required to cure any outstanding Event of
Default hereunder, and (iii) if no Event of Default is then continuing and the
Premises are "broom clean" and are in the same condition as at the beginning of
the term or as the same may be put in during the term, reasonable use and wear
only excepted, pay the balance of the Security Deposit to Tenant. Landlord may
maintain the Security Deposit separate and apart from Landlord's general funds
or may commingle the Security Deposit with Landlord's general and other funds.
Landlord shall not be required to pay Tenant interest on the Security Deposit.
Landlord may assign the Security Deposit to any subsequent owner of the Premises
and thereafter Landlord shall have no further liability to Tenant with respect
to the Security Deposit, and Tenant agrees to look solely to such subsequent
owner of the Premises with respect to such Security Deposit.
ARTICLE V
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TENANT'S ADDITIONAL COVENANTS
5.1 AFFIRMATIVE COVENANTS. Tenant covenants at its expense at all times
during the Term and for such further time as Tenant occupies the Premises or any
part thereof:
5.1.1 PERFORM OBLIGATIONS. To perform promptly all of the obligations
of Tenant set forth in this Lease; and to pay when due the Fixed Rent and
Additional Rent and all charges, rates and other sums which by the terms of this
Lease are to be paid by Tenant.
5.1.2 USE. To use the Premises only for the Permitted Uses, and from
time to time to procure all licenses and permits necessary therefor at Tenant's
sole expense. Tenant's use of the Premises shall not violate any current or
future ordinance, law or regulation of any governmental body.
5.1.3 REPAIR AND MAINTENANCE. To keep the Premises in good order,
condition and repair and in at least as good order, condition and repair as they
are in on the Commencement Date or may be put in during the term, fire and other
casualty (which shall be governed by the provisions of Article VI of this Lease)
and reasonable use and wear only excepted; to keep in a safe, secure and
sanitary condition all trash and rubbish temporarily stored at the Premises, to
arrange for and be responsible for all of the costs of a trash and rubbish
removal service in connection with Tenant's use of the Premises; and to make all
repairs and replacements and to do all other work necessary for the foregoing
purposes whether the same may be ordinary or extraordinary, foreseen or
unforeseen. The exception of reasonable use and wear shall not apply so as to
permit Tenant to keep the Premises in anything less than suitable, tenantable,
and efficient and usable condition considering the nature of the Premises and
the use reasonably made thereof, or in less than good and tenantable repair.
5.1.4 COMPLIANCE WITH LAW AND INSURANCE REQUIREMENTS. To make all
repairs, alterations, additions or replacements to the Premises required by any
law or ordinance or any order or regulation of any public authority arising from
Tenant's use of the Premises; to keep the Premises equipped with all safety
appliances so required; to pay all municipal, county, or state taxes assessed
against the leasehold interest hereunder, or against personal property of any
kind on or about the Premises; not to dump, flush, or in any way introduce any
hazardous substances or any other toxic substances into the septic, sewage or
other waste disposal system serving the Premises, not to generate, store or
dispose of hazardous substances in or on the Property or dispose of hazardous
substances from the Premises to any other location without the prior written
consent of Landlord and then only in compliance with all applicable federal,
state and/or local statutes, ordinances, bylaws, codes, rules and/or
regulations, now or hereafter enacted, pertaining to any aspect of the
environment or human health, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. ss.
6901, et seq., the Resource Conservation and Recovery Act of 1976, as amended,
42 U.S.C. ss. 6901, et seq., the Federal Water Pollution Control Act, the
Federal Clean Air Act and the Massachusetts Hazardous Materials Release
Prevention and Response Act, M.G.L. c.21E (collectively, the "Environmental
Laws") and all other applicable codes, regulations, ordinances and laws, and to
comply with the orders and regulations of all governmental authorities with
respect to zoning, building, fire, health and other codes, regulations,
ordinances or laws applicable to the Property. For purposes of this Section,
"hazardous substances" shall mean any oil, "hazardous material", "hazardous
waste" or "hazardous substance" as the foregoing terms are defined in the
Environmental Laws.
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Tenant agrees to protect, indemnify and hold Landlord and its successors
and assigns harmless from and against all loss, cost, liability and damage,
including attorneys' fees and the costs of litigation, arising from the presence
of any hazardous material, hazardous waste or hazardous substance in or on the
Property and arising from any act or omission of Tenant, its agents, servants or
contractors.
Landlord shall have the right, at Tenant's expense, to make such
inspections as Landlord shall reasonably elect from time to time to determine if
Tenant is complying with the preceding paragraph.
Tenant shall comply promptly with the recommendations of any insurer,
foreseen or unforeseen, ordinary as well as extraordinary, which may be
applicable to the Premises, by reason of Tenant's use thereof. In the event
Tenant does not comply with the recommendations of any insurer, Tenant shall be
liable for the payment of any increase in the amount of any insurance premium
caused by any such non-compliance; provided, however, in no event shall any
activity be conducted by Tenant on the Premises which may give rise to any
cancellation of any insurance policy or make any insurance unobtainable.
5.1.5 REQUIREMENTS FOR TENANT'S WORK. To procure at Tenant's sole
expense all necessary permits and licenses before undertaking any work on the
Premises, to do all such work in compliance with the applicable provisions of
Section 3.2 hereof; to do all such work in a good and workmanlike manner
employing materials of good quality and so as to conform with all applicable
zoning, building, fire, health and other codes, regulations, ordinances and laws
and the requirements of any insurers of the Premises; to keep the Premises at
all times free of liens for labor and materials; to require all contractors
employed by Tenant to carry worker's compensation insurance in accordance with
statutory requirements and comprehensive public liability insurance covering
such contractors on or about the Premises in amounts that at least equal the
limits set forth in Section 1.1 and to submit certificates evidencing such
coverage to Landlord prior to the commencement of such work; and to save
Landlord harmless and indemnified from all injury, loss, claims or damage to any
person or property occasioned by or growing out of such work.
5.1.6 INDEMNITY. To defend, with counsel selected by the insurance
company (which insurance company shall have at least an "A" rating) and approved
by Landlord, all actions against Landlord, any partner, trustee, stockholder,
officer, director, employee or beneficiary of Landlord, holders of mortgages
secured by the Property and any other party having interest in the Property
(Indemnified Parties) with respect to, and to pay, protect, indemnify and save
harmless, to the extent permitted by law, all Indemnified Parties from and
against, any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims,
demands or judgments of any nature to which any Indemnified Party is subject
because of its estate or interest in the Property, not caused by the Landlord,
its agents, servants or contractors and arising from (i) injury to or death of
any person, or damage to or loss of property, on the Premises, or connected with
the use, condition or occupancy of the Premises, (ii) any violation of this
Lease, or (iii) any act, fault, omission, or other misconduct of Tenant or its
agents, contractors, licensees, sublessees or invitees.
5.1.7 LANDLORD'S RIGHT TO ENTER. To permit Landlord and its agents to
enter the Premises at reasonable times and upon reasonable notice to examine the
Premises, make such repairs and replacements as Landlord may elect, without
however, any obligation to do so, and show the Premises to prospective
purchasers and lenders, and, during the last year of the term, to show the
Premises to prospective tenants and to keep affixed in suitable places notices
of availability of the Premises; provided, however, that Landlord shall not post
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any signs on the Premises as to the availability of the Premises prior to ninety
(90) days before the expiration of the Term of this Lease.
5.1.8 PERSONAL PROPERTY AT TENANT'S RISK. All of the furnishings,
fixtures, equipment, effects and property of every kind, nature and description
of Tenant and of all persons claiming by, through or under Tenant which, during
the continuance of this Lease or any occupancy of the Premises by Tenant or
anyone claiming under Tenant, may be on the Premises, shall, as between the
parties, be at the sole risk and hazard of Tenant and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by the
leakage or bursting of water pipes, steam pipes, or other pipes, by theft or
from any other cause, no part of said loss or damage is to be charged to or to
be borne by Landlord.
5.1.9 PAYMENT OF LANDLORD'S COST OF ENFORCEMENT. To pay on demand
Landlord's expenses, including reasonable attorney's fees, incurred in enforcing
any obligation of Tenant under this Lease or in curing any default by Tenant
under this Lease as provided in Section 7.4.
5.1.10 YIELD UP. At the expiration of the Term of this Lease, or
earlier termination of this Lease: to surrender all keys to the Premises, to
remove all of its trade fixtures and personal property in the Premises, to
remove such installations and improvements made by Tenant as Landlord may
request and all Tenant's signs wherever located, to repair all damage caused by
such removal and to yield up the Premises (including all installations and
improvements made by Tenant except for trade fixtures and such of said
installations or improvements as Landlord shall request Tenant to remove)
broom-clean and in the same good order and repair in which Tenant is obliged to
keep and maintain the Premises by the provisions of this Lease. Any property not
so removed shall be deemed abandoned and may be removed and disposed of by
Landlord in such manner as Landlord shall determine and Tenant shall pay
Landlord the entire cost and expense incurred by it in effecting such removal
and disposition and in making any incidental repairs and replacements to the
Premises and for use and occupancy during the period after the expiration of the
Term and prior to Tenant's performance of its obligations under this Section
5.1.10. Tenant shall further indemnify Landlord against all loss, cost and
damage resulting from Tenant's failure and delay in surrendering the Premises as
above provided.
5.1.11 ESTOPPEL CERTIFICATE. Within five (5) business days of receipt
of notice from Landlord, to execute, acknowledge and deliver to Landlord a
statement in writing certifying that this Lease is unmodified and in full force
and effect and that except as stated therein Tenant has no knowledge of any
defenses. offsets or counterclaims against its obligations to pay the Fixed Rent
and Additional Rent and any other charges and to perform its other covenants
under this Lease (or, if there have been any modifications that the same is in
full force and effect as modified and stating the modifications and, if there
are any defenses, offsets or counterclaims, setting them forth in reasonable
detail), the dates to which the Fixed Rent and Additional Rent and other charges
have been paid and a statement that Landlord is not in default hereunder (or if
in default, the nature of such default, in reasonable detail). Any such
statement delivered pursuant to this Section 5.1.11 may be relied upon by any
prospective purchaser or mortgagee of the Property, or any prospective assignee
of any such mortgage.
5.1.12 LANDLORD EXPENSES RE CONSENTS. To reimburse Landlord promptly
on demand for all reasonable legal and other expenses incurred by Landlord in
connection with all requests by Tenant for consent or approval hereunder.
5.1.13 HOLDING OVER. Tenant covenants that it will vacate the Premises
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immediately upon the expiration of the Term or sooner termination of this Lease.
If Tenant retains possession of the Premises or any part thereof after the
termination of the Term without Landlord's express consent, Tenant shall pay
Landlord rent at double the Fixed Rent for the time Tenant thus remains in
possession plus all Additional Rent and, in addition thereto, shall pay Landlord
for all damages, consequential as well as direct, sustained by reason of
Tenant's retention of possession. The provisions of this Section do not exclude
Landlord's rights of re-entry or any other right hereunder, including without
limitation, the right to refuse double the monthly rent and instead to remove
Tenant through summary proceedings for holding over beyond the expiration of the
term of this Lease.
5.2 NEGATIVE COVENANTS. Tenant covenants at all times during the Term and
for such further time as Tenant occupies the Premises or any part thereof:
5.2.1 ASSIGNMENT AND SUBLETTING. Except as provided below, not to,
without on each occasion first obtaining the prior written approval of Landlord,
which approval shall not be unreasonably withheld or delayed, assign, transfer,
or pledge this Lease, or sublease all or part of the Premises, or permit the
occupancy of the Premises by anyone other than Tenant. No assignment, transfer,
sublease or other encumbrance, whether or not approved, and no indulgence
granted by Landlord to any assignee or sublessee, shall in any way impair the
continuing primary liability (which after an assignment shall be Joint and
several with the assignee) of Tenant hereunder, and no approval in a particular
instance shall be deemed to be a waiver of the obligation to obtain Landlord's
approval in the case of any other assignment or subletting. The consent by
Landlord shall not constitute a waiver of the necessity for such consent to any
subsequent assignment. Notwithstanding the foregoing provisions, Tenant may,
without Landlord's approval, at any time, and from time to time during the Term
thereof, assign this Lease or sublet the Premises to (i) any corporation or
other entity owned by or under common ownership with Tenant, (ii) any
corporation or entity resulting from the consolidation or merger of Tenant with
any other business or organization, or (iii) any person, entity or corporation
acquiring a majority of Tenant's issued and outstanding capital stock or
partnership interests or substantially all of Tenant's assets; provided that
Tenant shall provide Landlord not less than ninety (90) days prior written
notice of any such sublease or assignment (which notice will describe in detail
the net worth, structure and identity of the assignee) and in each instance the
succeeding person, entity or corporation shall assume all the obligations of the
Tenant hereunder, and Tenant shall provide Landlord with a copy of such
instrument of assignment and assumption. Tenant shall remain fully and primarily
liable hereunder and shall not be released from performing any of the terms of
this Lease including, but not limited to, the payment of Fixed Rent due or to
become due hereunder, unless Tenant ceases to exist as a result of such
consolidation, merger or sale. Further, notwithstanding the foregoing, in the
event that Tenant's voting stock is publicly traded on the New York, American or
Over-the-Counter Stock Exchanges, Tenant shall have the right, without
Landlord's consent, to transfer shares of stock in Tenant. Notwithstanding the
foregoing, Tenant shall have the right to mortgage its leasehold interest in the
Premises.
If for any assignment or sublease so approved by Landlord, Tenant receives
rent or other consideration, either initially or over the term of the assignment
or sublease, in excess of the rent called for hereunder, or in case of sublease
of part, in excess of such rent allocable to the part, after appropriate
adjustments to assure that all other payments called for hereunder are
appropriately taken into account, Tenant shall pay to Landlord as Additional
Rent 100% of such excess of such payment of rent or other consideration received
by Tenant promptly after its receipt.
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Tenant shall reimburse Landlord for any costs or expenses incurred pursuant
to any request by Tenant for consent to any such assignment or subletting.
5.2.2 OVERLOADING AND NUISANCE. Not to injure, overload, deface or
otherwise harm the Premises, nor commit any nuisance, nor permit the emission of
any objectionable noise, vibration or odor; nor make, allow or suffer any waste,
nor make any use of the Premises which is improper, offensive or contrary to any
law or ordinance or which will invalidate any of Landlord's insurance.
ARTICLE VI
LANDLORD'S ADDITIONAL COVENANTS
6.1 AFFIRMATIVE COVENANTS. Landlord covenants at all times during the Term
to:
6.1.1 HVAC: Have in place a heating and air conditioning system that
is sufficient to air condition the Premises to a temperature of 70(degree) on a
100(degree) day and to heat the Premises to a temperature of 70(degree) on a
0(degree) day.
6.1.2 MAINTENANCE. Adequately maintain the parking areas, landscaping,
lighting and other common areas and facilities in good and clean condition
typical of well maintained suburban office conditions.
6.1.3 ADA. If an enforcement action is commenced against Landlord or
Tenant, by any person, for failure to comply with any applicable provision of
the ADA, remedy the situation so as to ensure compliance with the applicable
provisions of the ADA.
ARTICLE VII
CASUALTY OR TAKING
7.1 TERMINATION. In case during the Term greater than fifteen (15%) percent
of the Property shall be taken by any public authority or for any public use or
destroyed by the action of any public authority (hereinafter referred to as
"Taking"), then this Lease may be terminated by Landlord effective on the
effective date of the Taking. Such election by Landlord which may be made
notwithstanding the fact that Landlord's entire interest may have been divested,
shall be made by the giving of notice by Landlord to Tenant within thirty (30)
days after Landlord shall receive notice of the Taking. Landlord shall give
Tenant notice of any Taking. In the case of any Taking of less than or equal to
fifteen (15%) percent of the Property, a just proportion of the Fixed Rent and
other charges payable hereunder shall be abated for the remainder of the Term
according to the nature or extent of the damages (if any) sustained by the
Premises.
7.2 RESTORATION. In case during the Term, the Property shall be
substantially destroyed or damaged by fire or casualty (hereinafter referred to
as "Casualty") then this Lease may be terminated by Landlord effective as of the
date of such Casualty. If Landlord does not exercise the election to terminate
provided in Section 6.1 for a Taking or in this Section 6.2 for a Casualty or in
the event of a Casualty which does not substantially damage the Property, this
Lease shall continue in force and a just proportion of the Fixed Rent and other
charges hereunder, according to the nature and extent of the damages (if any)
sustained by the Premises shall be abated from the date of Casualty or Taking
until the Premises, or what may remain thereof, shall be put by Landlord in
proper condition for use subject to zoning and building laws or ordinances then
in existence, which, unless Landlord has exercised its option to terminate
<PAGE>
pursuant to Section 6.1 or 6.2, Landlord covenants to do with reasonable
diligence at Landlord's expense, provided that Landlord's obligations with
respect to restoration shall not require Landlord to expend more than the net
proceeds of insurance recovered or damages awarded for such Casualty or Taking.
"Net proceeds of insurance recovered or damages awarded" refers to the gross
amount of such insurance or damages less the reasonable expenses of Landlord in
connection with the collection of the same, including without limitation, fees
and expenses for legal and appraisal services.
Within thirty (30) days after any such Casualty or Taking, Landlord shall
notify Tenant of its good faith estimate of the time to complete such
restoration. If such estimated time to complete restoration exceeds ninety (90)
days (sixty (60) days if such Casualty or Taking occurs during the last two (2)
years of the Term of this Lease), upon notice given within the following thirty
(30) days, Tenant may terminate this Lease.
7.3 AWARD. Irrespective of the form in which recovery may be had by law,
all rights to damages or compensation shall belong to Landlord in all cases,
provided, however, that (a) during the first five years of the Initial Term of
the Lease any monetary compensation received by Landlord from a taking of the
Premises shall be apportioned pro rata between the Landlord and the Tenant in
accordance with the ratio (the "Ratio") that the fair market Value of the
Premises (without including Tenant Improvements) bears to the fair market Value
of the Tenant Improvements, both determined as of the date of the award of such
monetary compensation, provided, however, that if the Landlord and the Tenant
have not mutually agreed upon the Ratio in writing within thirty (30) days
following receipt by Landlord of such monetary compensation, the same shall be
determined by appraisers, one to be chosen by Landlord, one to be chosen by
Tenant, and a third to be selected by the two first chosen; all appraisers
chosen or selected thereunder shall be independent of the parties, shall have
received the M.A.I. (Member, Appraisal Institute) designation from the American
Institute of Real Estate Appraisers and shall have had at least five (5) years
of experience in appraising commercial office space comparable to the Premises;
the unanimous written decision of the two first chosen, without selection and
participation of a third appraiser, or otherwise the written decision of a
majority of the three appraisers chosen and selected as aforesaid, shall be
conclusive and binding upon Landlord and Tenant; Landlord and Tenant shall each
notify the other of its chosen appraiser within fifteen (15) days following
expiration of the aforesaid thirty (30) day period and, unless such two
appraisers shall have reached a unanimous decision within forty-five (45) days
from said expiration, they shall within a further fifteen (15) days elect a
third appraiser and notify Landlord and Tenant thereof; Landlord and Tenant
shall each bear the expense of the appraiser chosen by it and shall equally bear
the expense of the third appraiser (if any); and (b) the Tenant shall not be
prevented from pursuing any claim for business damages against the condemning
authority, so long as such claim will not diminish Landlord's award. Subject to
the foregoing sentence, Tenant hereby grants to Landlord all of Tenant's rights
to such damages and compensation and covenants to deliver such further
assignments thereof as Landlord may from time to time request.
ARTICLE VIII
DEFAULTS
8.1 EVENTS OF DEFAULT. (a) If Tenant shall default in the performance of
any of its obligations to pay the Fixed Rent or Additional Rent hereunder and if
such default shall continue for ten (10) days or (b) if any other default or
defaults shall occur on the part of Tenant under this Lease and continue for
thirty (30) days after notice from Landlord to Tenant specifying such default or
defaults, (provided that if Tenant has commenced diligently to correct the
<PAGE>
default or defaults so specified, Tenant shall have an additional thirty (30)
day period within which to effect a cure of such default or defaults), or (c) if
any assignment for the benefit of creditors shall be made by Tenant, or (d) if
Tenant's leasehold interest shall be taken on execution or other process of law
in any action against Tenant, or (e) if a lien or other involuntary encumbrance
is filed against Tenant's leasehold interest, and is not discharged within ten
(10) days thereafter, or (f) if a petition is filed by Tenant for liquidation,
or for reorganization or for any other similar relief under any provision of the
Bankruptcy Code as then in force and effect, or (g) if an involuntary petition
under any of the provisions of said Bankruptcy Code is filed against Tenant or
Guarantor and such involuntary petition is not dismissed within thirty (30) days
thereafter, then, and in any of such cases, Landlord and the agents and servants
of Landlord lawfully may, in addition to and not in derogation of any remedies
for any preceding breach of covenant, immediately or at any time thereafter and
without demand or notice and with or without process of law (forcibly, if
necessary) enter into and upon the Premises or any part thereof in the name of
the whole, or mail a notice of termination addressed to Tenant, and repossess
the same as of Landlord's former estate and expel Tenant and those claiming
through or under Tenant and remove its and their effects (forcibly, if
necessary) without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of rent or
prior breach of covenant, and upon such entry or mailing as aforesaid this Lease
shall terminate, Tenant hereby waiving all statutory rights (including, without
limitation, rights of redemption, if any) to the extent such rights may be
lawfully waived, and Landlord, without notice to Tenant, may store Tenant's
effects, and those of any person claiming through or under Tenant at the expense
and risk of Tenant, and, if Landlord so elects, may sell such effects at public
auction or private sale and apply the net proceeds to the payment of all sums
due to Landlord from Tenant, if any, and pay over the balance, if any, to
Tenant.
8.2 REMEDIES. In the event that this Lease is terminated under any of the
provisions contained in Section 7.1, Tenant covenants to pay forthwith to
Landlord, as compensation, the excess of the total rent reserved for the residue
of the Term over the fair market rental value of the Premises for the residue of
the Term. In calculating the rent reserved there shall be included, in addition
to the Fixed Rent and Additional Rent. the value of all other considerations
agreed to be paid or performed by Tenant during the residue. Tenant further
covenants as additional and cumulative obligations after any such termination to
pay punctually to Landlord all the sums and to perform all the obligations which
Tenant covenants in this Lease to pay and to perform in the same manner and to
the same extent and at the same time as if this Lease had not been terminated,
including, without limitation, the payment of all Fixed Rent and Additional
Rent. In calculating the amounts to be paid by Tenant pursuant to the preceding
sentence, Tenant shall be credited with any amount paid to Landlord as
compensation as provided in this Section 7.2 and also with the net proceeds of
any rent obtained by Landlord by reletting the Premises, after deducting all of
Landlord's reasonable expenses in connection with such reletting, including,
without limitation, all repossession costs, brokerage commissions, fees for
legal services and expenses of preparing the Premises for such reletting, it
being agreed by Tenant that Landlord may (i) relet the Premises or any part or
parts thereof for a term or terms which may at Landlord's option be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the term hereof and may grant such concessions and free rent as
Landlord in its reasonable Judgment considers advisable or necessary to relet
the same and (ii) make such alterations, repairs and decorations in the Premises
as Landlord in its reasonable judgment considers advisable or necessary to relet
the same, and no action of Landlord in accordance with the foregoing or failure
to relet or to collect rent under reletting shall operate or be construed to
release or reduce Tenant's liability as aforesaid. Landlord agrees to reasonably
<PAGE>
cooperate with any efforts by Tenant to relet the Premises.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
8.3 REMEDIES CUMULATIVE. Except as otherwise expressly provided herein, any
and all rights and remedies which Landlord may have under this Lease, and at law
and equity, shall be cumulative and shall not be deemed inconsistent with each
other, and any two or more of all such rights and remedies may be exercised at
the same time insofar as permitted by law.
8.4 LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but shall not be
obligated to, cure, at any time following ten (10) days' prior notice to Tenant
(except in cases of emergency when no notice shall be required), any default by
Tenant under this Lease; and whenever Landlord so elects, all costs and expenses
incurred by Landlord, including reasonable attorneys' fees, in curing a default
shall be paid by Tenant to Landlord as Additional Rent on demand, together with
interest thereon at the rate provided in Section 7.7 from the date of payment by
Landlord to the date of payment by Tenant.
8.5 EFFECT OF WAIVERS OF DEFAULT. Any consent or permission by Landlord to
any act or omission which otherwise would be a breach of any covenant or
condition herein, or any waiver by Landlord of the breach of any covenant or
condition herein, shall not in any way be held or construed (unless expressly so
declared) to operate so as to impair the continuing obligation of any covenant
or condition herein, or otherwise, except as to the specific instance, operate
to permit similar acts or omissions.
The failure of Landlord to seek redress for violation of, or to insist upon
the strict performance of, any covenant or condition of this Lease shall not be
deemed a waiver of such violation nor prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. The receipt by Landlord of rent with knowledge of the breach
of any covenant of this Lease shall not be deemed to have been a waiver of such
breach by Landlord. No consent or waiver, express or implied, by Landlord to or
of any breach of any agreement or duty shall be construed as a waiver or consent
to or of any other breach of the same or any other agreement or duty.
8.6 NO ACCORD AND SATISFACTION. No acceptance by Landlord of a lesser sum
than the Fixed 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, unless Landlord elects by notice to Tenant to credit such sum
against the most recent installment due, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment as rent or other
charge be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such
installment or pursue any other remedy provided in this Lease.
8.7 INTEREST ON OVERDUE SUMS. If Tenant falls to pay Fixed Rent, Additional
Rent and other charges payable by Tenant to Landlord within ten business days
after the due date thereof (without regard to any requirement of notice from
Landlord or any period of grace allowed to Tenant under this Lease before
Landlord is allowed to exercise any remedy on account thereof), the amount so
unpaid shall bear interest at a rate (the "Delinquency Rate") equal to three
percent (3%) in excess of the Base Rate of BankBoston, N.A., so-called, from
<PAGE>
time to time in effect or, if such rate is in excess of any maximum interest
rate permissible under applicable law, the Delinquency Rate shall be the maximum
interest rate permissible under applicable law, commencing with the due date and
continuing through the day preceding the date on which payment of such
delinquent payment with interest thereon is paid.
ARTICLE IX
MORTGAGES
9.1 RIGHTS OF MORTGAGE HOLDERS. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments evidencing other
voluntary liens or encumbrances, and modifications, consolidations, extensions,
renewals, replacements and substitutes thereof. The word "holder" shall mean a
mortgagee, and any subsequent holder or holders of a mortgage.
No Fixed Rent, Additional Rent or any other charge shall be paid more than
thirty (30) days prior to the due dates thereof if, and only if such prohibition
on the earlier payment of rent is required by the terms of any mortgage
affecting the Property. If any mortgage affecting the Property includes such
requirement, then payments made in violation of this provision shall (except to
the extent that such payments are actually received by a mortgagee in possession
or in the process of foreclosing its mortgage) be a nullity as against such
mortgagee and Tenant shall be liable for the amount of such payments to such
mortgagee.
In the event of any act or omission by Landlord which would give Tenant the
right to terminate this Lease or to claim a partial or total eviction, Tenant
shall not exercise any such right (a) until it shall have given notice, by
certified or registered mail, of such act or omission to the holder of any
mortgage encumbering the Property whose name and address shall have been
furnished to Tenant in writing, at the last address so furnished, and (b) until
a reasonable period of time for remedying such act or omission shall have
elapsed following the giving of such notice, provided that following the giving
of such notice, Landlord or such holder shall, with reasonable diligence, have
commenced and continued to remedy such act or omission or to cause the same to
be rendered.
In the event any proceedings are brought for the foreclosure of, or in the
event of exercise of the power of sale under, any mortgage now or hereafter
encumbering the Property, or any part thereof, Tenant shall attorn to the
purchaser upon such foreclosure or sale or upon any grant of a deed in lieu of
foreclosure and recognize such purchaser as Landlord under this Lease if so
requested by such purchaser.
9.2 SUPERIORITY OF LEASE; OPTION TO SUBORDINATE. Unless Landlord exercises
the option set forth below in this Section 8.2, this Lease shall be superior to
and shall not be subordinate to any mortgage placed on the Property after the
date of this Lease. Landlord shall have the option to subordinate this Lease to
any mortgage of the Property provided that the holder of record thereof enters
into an agreement with Tenant, in such holder's customary form, by the terms of
which such holder will agree (a) to recognize the rights of Tenant under this
Lease, (b) to perform Landlord's obligations hereunder arising after the date of
such holder's acquisition of title, and (c) as long as Tenant is not in default
under the terms of the Lease, to accept Tenant as tenant of the Premises under
the terms and conditions of this Lease in the event of acquisition of title by
such holder through foreclosure proceedings or otherwise and Tenant will agree
to recognize the holder of such mortgage as Landlord in such event, which
agreement shall be made expressly to bind and inure to the benefit of the
successors and assigns of Tenant and of the holder and upon anyone purchasing
<PAGE>
said Property at any foreclosure sale. Tenant and Landlord agree to execute and
deliver any appropriate instruments necessary to carry out the agreements
contained in this Section 8.2. Any such mortgage to which this Lease shall be
subordinated may contain such terms, provisions and conditions as the holder
deems usual or customary.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 NOTICES FROM ONE PARTY TO THE OTHER. All notices required or permitted
hereunder shall be in writing and addressed, if to Tenant, at the Original
Address of Tenant or such other address as Tenant shall have last designated by
notice in writing to Landlord and, if to Landlord, at the Original Address of
Landlord or such other address as Landlord shall have last designated by notice
in writing to Tenant. Any notice shall be deemed duly given three days after
mailing to such address, postage prepaid, registered or certified mail, return
receipt requested, or when delivered to such address by hand.
10.2 QUIET ENJOYMENT. Landlord agrees that upon Tenant's paying the rent
and performing and observing the terms, covenants, conditions and provisions on
its part to be performed and observed, Tenant shall and may peaceably and
quietly have, hold and enjoy the Premises during the term without any manner of
hindrance or molestation from Landlord or anyone claiming under Landlord,
subject, however, to the terms of this Lease.
10.3 EASEMENTS. Landlord reserves the right, from time to time, to grant
easements affecting the Property so long as such easements do not unreasonably
interfere with Tenant's use of the Premises. In exercising its rights under this
Section 9.3, Landlord shall make reasonable efforts not to unreasonably
interfere with Tenant's use of the Premises.
10.4 LEASE NOT TO BE RECORDED. Tenant agrees that it will not record this
Lease. Both parties shall, upon the request of either, execute, deliver and
record a notice of this Lease in such form, if any, as may be permitted by
applicable statute. If this Lease is terminated before the originally scheduled
expiration of the Term, the parties shall execute, deliver and record an
instrument acknowledging such fact and the actual date of termination of this
Lease, and Tenant hereby appoints Landlord its attorney-in-fact, coupled with an
interest, with full power of substitution to execute such instrument.
10.5 BIND AND INURE; LIMITATION LANDLORD'S LIABILITY. The obligations of
this Lease shall run with the land, and this Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. No owner of the Property shall be liable under this Lease except for
breaches of Landlord's obligations occurring while owner of the Property. The
obligations of Landlord shall be binding upon the assets of Landlord which
comprise the Property but not upon any other assets of Landlord. No individual
partner, trustee, stockholder, officer, director, employee or beneficiary of
Landlord shall be personally liable under this Lease and Tenant shall look
solely to Landlord's interest in the Property in pursuit of its remedies upon an
event of default hereunder, and the general assets of Landlord and its partners,
trustees, stockholders, officers, employees or beneficiaries of Landlord shall
not be subject to levy, execution or other enforcement procedure for the
satisfaction of the remedies of Tenant; provided that the foregoing provisions
of this sentence shall not constitute a waiver of any obligation evidenced by
this Lease and provided further that the foregoing provisions of this sentence
shall not limit the right of Tenant to name Landlord or any partner or trustee
thereof as party defendant in any action or suit in connection with this Lease
so long as no personal money judgment shall be asked for or taken against any
<PAGE>
partner, trustee, stockholder, officer, employee or beneficiary of Landlord.
10.6 ACTS OF GOD. In any case, where either party hereto is required to do
any act, delays caused by or resulting from acts of God, war, civil commotion,
fire, flood or other casualty, labor difficulties, shortages of labor, materials
or equipment, government regulations, unusually severe weather, or other causes
beyond such party's reasonable control shall not be counted in determining the
time during which such act shall be completed, whether such time be designated
by a fixed date, a fixed time or a "reasonable time", and such time shall be
deemed to be extended by the period of such delay.
10.7 LANDLORD'S DEFAULT. Landlord shall not be deemed to be in default in
the performance of any of its obligations hereunder, unless it shall fail to
perform such obligations and unless within thirty (30) days after notice from
Tenant to Landlord specifying such default, Landlord has not commenced
diligently to correct the default so specified or has not thereafter diligently
pursued such correction to completion. Tenant shall have no right, for any
default by Landlord, to offset or counterclaim against any rent due hereunder.
Subject to Section 9.5, if Tenant recovers a judgment against Landlord in a
court of competent jurisdiction for a breach of Landlord's obligations under
this Lease, Tenant shall be entitled to recover Tenant's reasonable expenses,
including attorneys' fee in recovering such judgment.
10.8 SIGNAGE. Landlord shall provide street signage of which Tenant shall
have a pro-rata share. Tenant may, at Tenant's sole cost and expense, erect or
place identifying signs or logos on the Premises so long as the same comply with
all applicable building and zoning codes and, in the reasonable Judgment of
Landlord, are consistent with the character of the Property.
10.9 BROKERAGE. Each of Tenant and Landlord warrants and represents to the
other that it has had no dealings with any broker or agent in connection with
this Lease other than the Brokers set forth in Article I and covenants to defend
with counsel approved by the other, hold harmless and indemnify the other from
and against any and all cost, expense or liability for any compensation,
commissions and charges claimed by any broker or agent other than the Brokers
set forth in Article I with respect to its dealings in connection with this
Lease or the negotiation thereof. Landlord shall compensate Parsons and Peter
Elliot for their brokerage services.
10.10 APPLICABLE LAW AND CONSTRUCTION. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts. If
any term, covenant, condition or provision of this Lease or the application
thereof to any person or circumstances shall be declared invalid, or
unenforceable by the final ruling of a court of competent jurisdiction having
final review, the remaining terms, covenants, conditions and provisions of this
Lease and their application to persons or circumstances shall not be affected
thereby and shall continue to be enforced and recognized as valid agreements of
the parties, and in the place of such invalid or unenforceable provision, there
shall be substituted a like, but valid and enforceable provision which comports
to the findings of the aforesaid court and most nearly accomplishes the original
intention of the parties.
There are no prior oral or written agreements between Landlord and Tenant
affecting this Lease. This Lease may be amended, and the provisions hereof may
be waived or modified, only by instruments in writing executed by Landlord and
Tenant.
The titles of the several Articles and Sections contained herein are for
convenience only and shall not be considered in construing this Lease.
<PAGE>
Unless repugnant to the context, the words "Landlord" and "Tenant"
appearing in this Lease shall be construed to mean those named above and their
respective heirs, executors, administrators, successors and assigns, and those
claiming through or under them respectively. If there be more than one tenant
the obligations imposed by this Lease upon Tenant shall be joint and several.
10.11 SUBMISSION NOT AN OFFER. The submission of a draft of this Lease or a
summary of some or all of its provisions does not constitute an offer to lease
or demise the Premises, it being understood and agreed that neither Landlord nor
Tenant shall be legally bound with respect to the leasing of the Premises unless
and until this Lease has been executed by both Landlord and Tenant and a fully
executed copy delivered.
10.12 ACCESS. Employees of Tenant shall have access to the premises 24
hours a day, seven days a week, fifty-two weeks a year. The Landlord shall
provide a card key access system and shall not restrict such access by the
employees of Tenant unless otherwise permitted by the provisions of this Lease.
10.13 PARKING. During the Term of the Lease, Landlord shall provide Tenant
with forty (40) reserved parking spaces for sole use by the Tenant in an area to
be designated by Landlord and acceptable to Tenant. Once designated by Landlord
and accepted by Tenant, such parking spaces shall not be substantially relocated
by Landlord or Tenant.
WITNESS the execution hereof under seal as of the 30th day of September,
1997.
Tenant:
NE RESTAURANT COMPANY, INC.
By:/s/ Paul V. Hoagland
-------------------------
Name: Paul V. Hoagland
Title: Vice President
Landlord:
OTARI MANUFACTURING
CORPORATION
By: /s/ Jack Soma
------------------------
Name: Jack Soma
Title: President
EXHIBIT A
Description of the Lot
Parcel C-R containing approximately 64,276 square feet and shown on a plan
entitled "Plan of Land in Westborough, MA Owner: Otari Manufacturing Corp."
dated July 14, 1995, prepared by Guerard Survey Co. & Assoc. and recorded in the
Worcester Registry of Deeds in Plan Book 697, Plan 104.
<PAGE>
AMENDMENT TO LEASE AGREEMENT
Whereas, on September 30, 1997, a certain Lease Agreement was entered
between Otari Manufacturing Corporation, ("Lessor") and New England Restaurant
Company, Inc. ("Lessee") covering certain space being 14,000 square feet on the
second floor at 80 Turnpike Road in Westboro, Massachusetts.
Whereas, it is the desire of the parties to amend the Lease, in certain
particulars.
Now, therefore, for and in consideration of value received, the undersigned
Lessor (Eighty Turnpike, LLC) and Lessee confirm their agreement as follows:
Lessee shall have the right to use in common the loading dock and adjacent
area as per attached plan Exhibit "B". Lessor shall have exclusive right to use
the freight elevator.
In all other respects, the terms and conditions of the Original Lease shall
remain in full force and effect.
Parties hereto, their successors and assigns and is hereby made a part of
the above described Lease Agreement.
EXECUTED AND DELIVERED this 25th day of , 1998.
Lessor: Lessee:
Eighty Turnpike L.L.C. New England Restaurant Co.
By: /S/ JOHN R. PARSONS, JR. By: /S/ PAUL HOAGLAND, VICE PRESIDENT
John R. Parsons, Jr. Duly Authorized, Title
Managing Member