EXHIBIT 10.26
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LEASE
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1. PARTIES. ROBERT A. JONES and K. GEORGE NAJARIAN, Trustees of OLD
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CAMBRIDGE REALTY TRUST, under a Declaration of Trust dated December, 1992,
recorded with Middlesex South District Registry of Deeds at Book 14828, Page
324, also filed with the Middlesex South Registry District of the Land Court as
Document No. 632431, and not individually, and ROBERT A. JONES and K. GEORGE
NAJARIAN, Trustees of OLD KENDALL REALTY TRUST, under a Declaration of Trust
dated March, 1984, recorded with Middlesex South District Registry of Deeds at
Book 15564, Page 086, also filed with the Middlesex South Registry District of
the Land Court as Document No. 660209, and not individually, (jointly referred
to as "LESSOR"), which expression shall include their successors and assigns
where the context so permits, do hereby lease to TELECONVERSANT, LTD., a
Massachusetts corporation, ("LESSEE"), which expression shall include its
successors and assigns, and the LESSEE hereby leases and shall peaceably hold
and enjoy the following described premises.
1A. LESSEE acknowledges that OLD CAMBRIDGE REALTY TRUST owns the Building
400 (2843 RSF) portion of the Leased Premises described below and that OLD
KENDALL REALTY TRUST owns the Building 600 (1730 RSF) portion of the Leased
Premises. LESSOR (defined as both OLD CAMBRIDGE REALTY TRUST and OLD KENDALL
REALTY TRUST) and LESSEE acknowledge and agree that, although LESSOR shall
endeavor to treat lease and LESSEE as one sole tenancy, (i.e., LESSEE will have
only one (1) lease), the LESSOR entities will keep track of lease separately and
bear responsibility only for their portion of the Leased Premises. Each LESSOR
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will bill LESSEE for its charges due
under Paragraphs 5 and 6 below. LESSEE may at its option pay any amounts due
with one payment to either LESSOR, and LESSOR shall account for the pro-rata
amounts itself. LESSEE acknowledges that OLD CAMBRIDGE REALTY TRUST and OLD
KENDALL REALTY TRUST's obligations under this lease are distinct from each other
and that their obligations pertain solely to their portion of the Leased
Premises on the buildings they own.
2. LEASED PREMISES.
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On the Commencement Date, or such earlier date as LESSEE shall take
occupancy thereof, the "Leased Premises" shall consist of that portion of the
first floor in Building No. 400 and Building No. 600 (the "Building") located at
One Kendall Square, Cambridge, Massachusetts, located in the mixed use retail
and office complex known as "One Kendall Square" (the "Complex") which first
floor space contains four thousand five hundred and seventy-three (4,573)
rentable square feet of space, more or less, and outlined on the sketch
contained in Exhibits A1-1 and A1-2 (herein called the "Leased Premises").
The Leased Premises shall have as appurtenant thereto: (a) the right to
use in common with others entitled thereto, the entrances, lobbies, hallways,
stairways, walkways, sidewalks, driveways, loading docks, elevators and other
common facilities in the building containing any portion of the Leased Premises
and on the land constituting the Lot more particularly described in Exhibit B
hereto (herein called the "Lot") necessary for access to and enjoyment of the
Leased Premises, or portion, and (b) the pipes, conduits, wires, and appurtenant
equipment serving the Leased Premises, or portion thereof, in common with other
portions of the Building containing any part of the Leased Premises, subject,
however, to the following rights which are expressly excepted and reserved by
LESSOR: (i) the right, from time to time, to install, maintain, use, repair,
relocate, place and replace utility lines, pipes, ducts, conduits, wires, gas,
electric, or any
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other meters and fixtures located on or passing through any portion of the
Leased Premises to serve other portions of the LESSOR's property of which the
Leased Premises, or a portion thereof, are a part; (ii) the right to enter into,
upon and across any portion of the Leased Premises to exercise any reserved
right of LESSOR hereunder or to complete LESSOR's construction of the Leased
Premises, or part thereof, and the Building; and (iii) the right from time to
time to make alterations or additions to the Building and to construct other
buildings or improvements on the Lot and to make additions to such buildings or
improvements, and to permit others to do so from time to time all as LESSOR may
determine in its sole discretion, and without LESSEE's consent in any instance;
any such alterations or additions or construction of other buildings or
improvements on the Lot, being performed to the greatest possible extent in a
manner so as not unreasonably to interfere with the LESSEE's use and occupancy
of the Leased Premises, and so as not to obstruct the LESSEE's access to the
Leased Premises.
Subject to LESSOR's reserved rights specified above, there shall be
appurtenant to the Leased Premises the right, but not an obligation to part ten
(10) passenger motor vehicles in the parking garage appurtenant to the Lot, (on
an "as needed" basis with LESSEE giving LESSOR one month's prior notice)
commonly referred to as the OKS Garage. LESSOR reserves the right to designate
the locations of the spaces to be utilized for such parking rights by written
notice to LESSEE, and to change the location of any or all of such spaces by
notice to LESSEE at any time and from time to time as LESSOR shall solely
determine. The parking spaces provided hereunder need not be contiguous.
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3.1 TERM. The term (the "term") of this Lease shall be for a period of
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five (5) years following the "Commencement Date". The "Commencement Date" shall
be the date of the later to occur of:
(a) The date upon which the Leased Premises are "ready for occupancy"
(as defined in Paragraph 3.2 below) or
(b) March 15, 1996.
As soon as may be convenient after the Commencement Date has been
determined, the LESSOR and the LESSEE agree to join with each other in the
execution, in recordable form, of a written declaration in which the
Commencement Date shall be stated.
3.1.1. PHASED OCCUPANCY. In the event a portion of the Leased Premises
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are substantially completed and ready for occupancy, and LESSOR shall have given
notice to LESSEE thereof, then LESSEE shall have the right to commence use and
occupancy of such portion of the Leased Premises subject to the terms and
conditions of this Lease. During the period of such partial use and occupancy,
Base Rent and additional rent payable under Paragraphs 4 and 5 hereof shall be
payable on a pro rata basis in the same proportion as the square footage of the
space being used and occupied bears to the total square footage of the Leased
Premises, and LESSEE shall perform, comply with and abide by all of its
obligations, undertakings and covenants as if, and to the same extent, as though
the term had commenced.
3.2 COMPLETION OF IMPROVEMENTS. The Leased Premises shall be
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considered "ready for occupancy" on the date upon which the improvements
described in Exhibit C hereto to be constructed by LESSOR with respect to the
Leased Premises are substantially completed, and LESSEE is given a copy of a
certificate of occupancy issued by the City of Cambridge Building Department
covering the Leased Premises. The Leased Premises
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shall be deemed substantially completed notwithstanding that completion of work
and adjustment of equipment and fixtures or minor items of uncompleted work (so-
called "punch list" work items) remain to be done, if such work can be completed
after occupancy has been taken without causing unreasonable interference with
LESSEE's use of the Leased Premises. Except for the latent defects and except to
the extent to which the LESSEE shall have given the LESSOR written notice, not
later than thirty (30) days after the Commencement Date, of matters or items as
to which the LESSOR has not properly performed its obligations with respect to
the construction and installation of the improvements called for under the
Lease, the LESSEE shall have no claim that the LESSOR has failed to perform such
obligations, and LESSEE's taking possession shall be conclusive evidence as
against LESSEE that said space and improvements were in good order and
satisfactory condition when LESSEE took possession. The LESSOR shall complete
all items of work not properly performed as to which the LESSEE shall have given
the LESSOR such timely written notice as soon as conditions practicably permit
thereafter in such a manner as not to unreasonably disturb the LESSEE or its
business operations carried out in the Leased Premises.
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4. RENT. LESSEE covenants and agrees to pay to LESSOR annual base rent
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("Base Rent") in the amounts set forth or provided for below, by equal payments
of one-twelfth of such annual rate on the first day of each calendar month in
advance, the first monthly payment to be made on the Commencement Date, and by
payment in advance of a pro-rata portion of a monthly payment for any portion of
a month at the beginning or end of the term; all payments to be made to LESSOR
or such agent, and at such place, as LESSOR shall from time to time in writing
designate, the following being now so designated:
OLD CAMBRIDGE REALTY TRUST
THE ATHENAEUM GROUP
215 First Street
Cambridge, MA 02142-1268
(In the case of all Base Rent, rent adjustment and utility (if applicable)
payments, the designated LESSOR for receipt of such payments shall be Old
Cambridge Realty Trust and both parties hereby agree and acknowledge that if
sufficient payments as due herein shall be paid solely to Old Cambridge Realty
Trust, LESSEE shall not be put into default for failure to pay Old Kendall
Realty Trust.)
The annual Base Rent during the Term is according to the following
schedule.
(i) Year 1 - $59,449.00
Year 2 - 64,022.00
Year 3 - 68,595.00
Year 4 - 73,168.00
Year 5 - 77,741.00
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(ii) the annual fair rental value of LESSEE's parking spaces (currently
$115 per month per space) in the parking garage available to LESSEE,
all to be reasonably determined by LESSOR ("Garage Parking").
5. RENT ADJUSTMENTS.
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5.1 RENT ADJUSTMENTS - COMMON AREA OPERATING EXPENSES FOR THE LOT.
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Commencing as of the Commencement Date and with respect to any calendar year or
any fraction of a calendar year thereafter falling within the Term, the LESSEE
shall pay to the LESSOR as additional rent, the "LESSEE's Proportionate CAO Lot
Share" (defined below) of all costs and expenses incurred by the LESSOR in
connection with the insurance, maintenance, repair, upkeep, and cleaning of
those common areas and facilities of the Lot delineated or described in Exhibit
B hereto, which LESSEE has the right to use in common with others such as but
not limited to common walkways, accessways and parking facilities and the costs
of insurance, heating and electricity, snow-plowing and snow and ice removal,
trash removal services, janitorial and security services, landscaping and lawn
care services, walkway, driveway, parking, and common entryway upkeep and paving
costs, and all other costs reasonably incurred by or for LESSOR in connection
with the insurance, maintenance and operation of the common areas and facilities
of the Lot to keep the same in safe, secure and first-class order and condition
(hereinafter called "CAO Lot"), but specifically excluding all expenses which
would be considered to be "capital expenses" or management fees under generally
accepted accounting principals.
LESSEE's Proportionate CAO Lot Share means that percentage which is equal
to the ratio of the square footage of space constituting the Leased Premises to
the aggregate square footage of space within the Complex which is completed and
as to which a Certificate of
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Occupancy has issued. As additional buildings are completed within the Complex,
LESSEE's Proportionate CAO Lot Share shall be adjusted to that percentage which
is equal to the ratio of the square footage constituting the Leased Premises to
the aggregate square footage of space within the Complex which is completed and
as to which a certificate of occupancy has issued. As of the date hereof, the
parties have agreed that LESSEE's Proportionate CAO Lot Share shall initially be
47/100 (.47%) percent for the space in Building No. 400 and 28/100 (.28%)
percent for the space in Building No. 600.
5.2 RENT ADJUSTMENT - COMMON AREA OPERATING EXPENSES FOR THE BUILDING.
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Commencing as of the Commencement Date and with respect to any calendar year
falling within the Term, or fraction of a calendar year at the beginning or end
of the Term, the LESSEE shall pay to the LESSOR, as additional rent, the
"LESSEE's Proportionate Building Share" (defined below) of operating expenses
attributable to the Building ("CAO Building") CAO Building shall include, but is
not limited to, the following: all costs and expenses incurred by the LESSOR in
connection with the insurance, operation, repair, maintenance and cleaning of or
for the Building and heating, plumbing, elevators, electrical, air-conditioning
and other systems thereof, trash removal, janitorial services, security systems
and general expenses incurred by the LESSOR in connection with the insurance,
operation and maintenance of the Building, to keep the same in safe, secure and
first-class order and condition, but specifically excluding all expenses which
would be considered to be "capital expenses" or management fees under generally
accepted accounting principles.
LESSEE's Proportionate Building Share shall be that percentage, which
is equal to the ratio of the square footage of space constituting the Leased
Premises to the aggregate square footage of space in the Building.
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The LESSEE's Proportionate Building Share with respect to the Leased
Premises is 17 and 65/100 (17.65%) percent for the space in Building No. 400 and
7 and 67/100 (7.67%) percent for the space in Building No. 600.
5.3 MONTHLY PAYMENTS. Beginning on the Commencement Date, and in
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subsequent years during the Term of this Lease, the LESSEE shall pay to the
LESSOR pro rata monthly installments of amounts due under Paragraphs 5.1 and 5.2
on account of projected CAO Lot and CAO Building for such year, calculated by
the LESSOR on the basis of the best and most recent budget or data available.
Appropriate adjustments of estimated amounts shall be made between LESSOR and
LESSEE promptly after the close of each calendar year to account for actual CAO
Lot and CAO Building for such year, except that LESSOR may at its option, credit
any amounts due from it to LESSEE as provided above against any sums then due
from LESSEE to LESSOR under this Lease. The balance of any amounts due shall be
paid within twenty (20) days after written notice thereof.
5.4 RENT ADJUSTMENT - TAXES.
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5.4.1. LESSOR TO PAY TAXES. The LESSOR shall be responsible for the
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payment, before the same becomes delinquent, of all general and special taxes of
every kind and nature, including assessments for local improvements, and other
governmental charges which may be lawfully charged, assessed or imposed (herein
collectively called the "Taxes") upon the Building and the Lot.
If at any time during the Term the present system of ad valorem
taxation of real property shall be changed to that in lieu of the whole or any
part of the ad valorem tax on real property, there shall be assessed on LESSOR a
capital levy or other tax on the gross rents received with respect to the Lot or
the Building or a federal, state, county, municipal, or other local income,
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franchise, excise or similar tax, assessment, levy or charge (distinct from any
now in effect) measured by or based, in whole or in part, upon any such gross
rents, then any and all of such taxes, assessments, levies or charges to the
extent so measured or based, shall be deemed to be included within the term
"Taxes" but only to the extent that the same would be payable if the Lot and the
Building were the only property of LESSOR.
5.4.2. LESSEE's SHARE OF TAXES. The LESSEE shall pay to the LESSOR,
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as additional rent, the LESSEE's Proportionate Building share of that portion of
the Taxes attributable to the Building and LESSEE's Proportionate CAO Lot Share
of that portion of the Taxes attributable to the land which constitutes the Lot.
5.4.3. RENT ADJUSTMENT-PAYMENT. Beginning on the Commencement Date,
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and in subsequent years during the Term of this Lease, LESSEE shall pay to the
LESSOR monthly installments of one-twelfth of the amounts due to LESSOR under
Paragraphs 5.4.1 and 5.4.2 on account of projected Taxes for such year,
calculated by the LESSOR on the basis of the best and most recent data available
as set forth in a statement from LESSOR (and, when available, based upon the
real estate tax bill covering any such period). Appropriate adjustments of
estimated amounts shall be made between LESSOR and LESSEE promptly after LESSOR
shall have received the tax bill covering any such period.
5.4.4. TAX ADJUSTMENT. If the LESSOR or any other tenant (excluding
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LESSEE) in the Building shall construct an addition to the Building, or
construct improvements within the Building of unusual value so as to result in
an increase in Taxes over the Taxes which would have been assessed to that
Building but for such construction, there shall not be included in Taxes for
purposes of this Lease the amount of such increase in Taxes unless such
additions or improvements directly benefit the LESSEE. If the LESSEE, or the
LESSOR at the direction of
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the LESSEE, shall construct improvements within the Leased Premises, or any part
thereof, of unusual value so as to result in an increase in Taxes over the Taxes
which would have been assessed to the Building, or part, but for such unusually
valuable improvements, the LESSEE shall be responsible for the payment of the
full amount of such increase.
6. UTILITIES AND OTHER SERVICES.
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(a) The LESSEE shall pay charges for all gas, heat, air-conditioning
and electricity, and all other utilities separately metered or sub-metered
to the Leased Premises. LESSEE shall be responsible for all utility company
deposits applicable to the supply of such services to the Leased Premises.
LESSEE shall also be responsible for the payment of its proportionate share of
all water and sewer use and utilities not separately metered or sub-metered to
the Leased Premises all as reasonably determined by LESSOR. Upon request by the
LESSOR, the LESSEE shall provide the LESSOR with evidence of any direct payment
of such charges. LESSEE shall defend, indemnify and hold LESSOR harmless from
and against any claim or liability arising for such charges which LESSEE is
responsible for.
(b) LESSOR agrees to furnish reasonable heat to the stairways,
elevators and other common areas in the Building, or portions thereof, as
necessary for comfortable occupancy during and to provide lighting to
passageways and stairways and all parking areas and walkways providing access
from the Building to the parking area in the evening during customary business
hours on regular business days, and to furnish ordinary repairs and cleaning of
the common areas and facilities of the Complex and removal of snow and ice
reasonably promptly after snow fall and ice accumulation have ended to all
walkways, accessways and approaches to the Building and the parking facility as
is customary in or about similar buildings in Cambridge. LESSOR shall not be
liable to LESSEE for any compensation or reduction of rent by reason of
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inconvenience or annoyance or for loss of business arising from the necessity of
LESSOR or its agents entering the Leased Premises, or for LESSEE's repairing the
Leased Premises if such repair is not performed by LESSOR, or for making repairs
or renovations to any portion of the Building, however, the necessity may occur.
In case LESSOR is prevented or delayed from making any such repairs or
alterations, or supplying the utilities or services provided for herein, or
performing any other covenant or duty to be performed on LESSOR's part, by
reason of any cause beyond LESSOR's control, LESSOR shall not be liable to
LESSEE therefor, nor shall LESSEE be entitled to any abatement or reduction of
rent by reason thereof, nor shall the same give rise to a claim in LESSEE's
favor that such failure constitutes actual or constructive, total or partial,
eviction from the Leased Premises, or any portion thereof. LESSOR reserves the
right to stop any service or utility system, when necessary by reason of
accident or emergency, or until necessary repairs have been completed.
(c) To the extent there are separate meters for any utilities including
heat, electricity, water and sewer, and air conditioning, the LESSEE shall pay
its utility charges directly to the suppliers of such utility services and at
least before the same become delinquent. If there are not separate meters, then
LESSEE shall pay its pro rata share of the utility cost, as billed by LESSOR.
The LESSEE and LESSOR shall have the right to audit said charges and payments
upon reasonable notice.
7. USE OF LEASED PREMISES. The LESSEE may use the Leased Premises
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only for the purpose of offices in connection with its communications sales and
services business [including consumer sales use related thereto (/s/ CPS, KGN,
RAJ)].
8. COMPLIANCE WITH LAWS. The LESSEE acknowledges that no trade or
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occupation shall be conducted in the Leased Premises or use made thereof which
shall be
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unlawful, improper, noisy or offensive, or be contrary to any law or
any municipal by-law or ordinance in force in the City of Cambridge. LESSEE
shall keep the Leased Premises equipped with all safety appliances and shall
procure and keep in force all licenses and permits required by law or ordinance
of any public authority because of the uses made of the Leased Premises by
LESSEE and shall maintain in good condition on the Leased Premises all safety
and fire protection devices required by the Board of Fire Underwriters, or other
body having similar functions, and of every insurance company and policy by
which LESSOR or LESSEE is insured. If any use of the Leased Premises results in
the cancellation of any insurances carried by LESSOR, or increases the cost
thereof, the LESSEE shall on demand reimburse the LESSOR all extra insurance
premiums incurred as a result of such use of the Leased Premises by the LESSEE.
9. RISK OF LOSS OF PERSONAL EFFECTS. LESSEE acknowledges and agrees
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that all of the furnishings, equipment, effects and property of LESSEE and of
all persons claiming by, through or under LESSEE which may be on the Leased
Premises or elsewhere in any building in the Complex, shall be at the sole risk
and hazard of LESSEE 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 LESSOR, except that
LESSOR shall in no event be indemnified or held harmless or exonerated from any
liability to LESSEE or to any other person, arising from any injury, loss,
damage or liability caused by LESSOR's negligence.
9A. INSURANCE - WAIVER OF SUBROGATION. LESSOR agrees to keep the
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Building and LESSEE agrees to keep the Leased Premises, and all equipment,
machinery and fixtures therein insured in amounts equal to the actual cash value
of the same, against fire and
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other perils included in a standard extended coverage endorsement, and against
breakdown of boilers and other machinery and equipment, and LESSEE agrees to
procure and keep in force comprehensive general liability insurance indemnifying
LESSOR against all claims and damages for any injury to or death of person or
damage to property which may be claimed to have occurred upon or to have been
caused by activities or conditions within the Leased Premises and indemnifying
LESSOR to the extent any such claims and demands are the responsibility or
obligation of LESSEE pursuant to this lease or as a matter of law, in amounts
not less than One Million ($1,000,000) Dollars for property damage, Five Hundred
Thousand ($500,000) Dollars for injury or death of more than one person in a
single accident.
All insurance required hereunder shall be written by insurance
carriers qualified to do business and in good standing in Massachusetts and
approved by LESSOR, which approval shall not be unreasonably withheld. All
policies of insurance shall name LESSOR and LESSEE as the insured parties. Each
required policy of insurance shall provide that, notwithstanding any act or
omission of LESSEE which might otherwise result in forfeiture of said insurance:
(A) it shall not be canceled nor its coverage reduced without at least ten (10)
days prior written notice to each insured named therein, and (B) any proceeds
(other than for LESSEE's personal property insurance) shall be first payable to
LESSOR or to the holder of any mortgage encumbering the Leased Premises, as
their respective interests may appear.
As of the commencement of the term hereof, and thereafter not less
than fifteen (15) days prior to the expiration dates of the expiring policies,
the original policies to be obtained by LESSEE hereto issued by the respective
insurers or certificates thereof including photocopies of the original policies,
shall be delivered to LESSOR.
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Any insurance carried by either party with respect to the Leased
Premises or property therein or occurrences thereon shall include a clause or
endorsement denying to the insurer rights of subrogation against the other party
to the extent rights have been waived by the insured prior to the occurrence of
injury or loss. Each party, notwithstanding any provisions of this Lease to the
contrary, hereby waives any rights of recovery against the other for injury of
loss due to hazards covered by such insurance to the extent of the
indemnification received thereunder.
10. MAINTENANCE OF LEASED PREMISES. The LESSEE agrees to maintain
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the Leased Premises in the same condition as they are at the commencement of the
Term or as they may be put in during the Term of this Lease, reasonable wear and
tear, damage by fire, other casualty and eminent domain, and matters for which
the LESSOR is responsible hereunder only excepted, to provide its own interior
janitorial service, to install and maintain its own security system as it
considers appropriate and, whenever necessary, to replace plate glass and other
glass therein with that of the same quality as that damaged or injured. LESSOR
shall maintain and LESSEE shall pay its proportionate share of the maintenance
of the HVAC System servicing the Leased Premises, but LESSEE shall be
responsible for all repairs and replacements to said system if the same is
caused by any act or omission of LESSEE or its agents. The LESSEE shall not
permit the Leased Premises to be overloaded, damaged, stripped, or defaced, nor
suffer any waste. LESSEE shall obtain written consent of LESSOR before erecting
any sign on or about the Leased Premises, which consent shall not be
unreasonably withheld or delayed. LESSEE further covenants and agrees: to take
all reasonably necessary actions to insure that smoke, fumes, vapors and odors
will not permeate any building containing the Leased Premises and will be
removed only through the exhaust and ventilating system servicing the Leased
Premises; to keep the Leased Premises free of pests, roaches and vermin; to keep
all trash garbage and debris
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stored on the Leased Premises (and not in any other portions of the Lot or the
Building) in adequate covered containers, approved by LESSOR and placed in
locations or areas approved by LESSOR in writing and to arrange for the regular
removal thereof once each day; to provide for frequent and adequate cleaning of
the Leased Premises and all walls, floors, fixtures and equipment therein
consistent with its use. LESSOR shall maintain in good condition the structural
elements and the roof of the Building, the mechanics equipment and systems in
the Building (other than such equipment and systems which are located within or
exclusively serve the Leased Premises, and other than LESSEE's maintenance
obligations otherwise provided herein), and the common areas of the Building.
LESSEE shall pay its proportionate share for these expenses and services as set
out in Paragraph 5 above.
11. ALTERATIONS - ADDITIONS. The LESSEE shall not make structural
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alterations or additions to the Leased Premises, but may make nonstructural
alterations and improvement, provided the LESSOR consents thereto in advance in
writing in each instance, which consent shall not be unreasonably withheld or
delayed provided that LESSOR is furnished with detailed plans and specifications
reasonably approved by LESSOR. All such allowed alterations or additions shall
be at LESSEE's expense and shall be in quality at least equal to the present
construction. LESSEE shall not permit any mechanics' liens, or similar liens,
to remain upon the Leased Premises for labor and materials furnished to LESSEE
or claimed to have been furnished to LESSEE in connection with the 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, additions or improvements made by the LESSEE,
except for moveable partitions and furnishings, installed at the LESSEE's cost,
shall become the property of the LESSOR at the termination of the Lease as
provided herein.
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With respect to all such LESSEE work, LESSEE further agrees as
follows: that such work shall commence only after all required municipal and
other governmental permits and authorizations have been obtained (the LESSOR
agreeing to join in any application therefor at the LESSEE's expense, whenever
necessary) and all such work shall be done in a good and workmanlike manner in
compliance with building and zoning laws and with all other laws, ordinances,
regulations and requirements of all federal, state and municipal agencies, and
in accordance with the requirements and policies issued by any insurer of LESSOR
or LESSEE; that all such work shall be prosecuted with reasonable dispatch to
completion; that at all times when any such work is in progress, LESSEE shall
maintain or cause to be maintained adequate workers' compensation insurance for
those employed in connection therewith with respect to whom death or injury
claims could be asserted against LESSOR, the LESSEE or the Leased Premises and
comprehensive general liability or builder's risk insurance (for mutual benefit
of LESSEE and LESSOR) in coverages reasonably approved by LESSOR: and that all
such work of LESSEE shall be coordinated with any work being performed by LESSOR
and other tenants of the building in which the work is taking place in such
manner as to maintain harmonious labor relations and not to interfere with the
operation of the Building or the Complex or the construction work of others.
12. ASSIGNMENT - SUBLETTING. The LESSEE shall not assign or sublet
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the whole or any part of the Leased Premises without the LESSOR's prior written
consent, which consent shall not be unreasonably withheld or delayed.
Notwithstanding such consent, LESSEE shall remain liable to LESSOR for the
payment of all rent and for the full performance of the covenants and conditions
of this Lease (which following assignment shall be joint and several with
assignee).
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12A. QUIET ENJOYMENT, COVENANT OF TITLE. The LESSEE, on paying the
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rent and other charges hereunder, as and when the same shall become due and
payable and observing and performing the covenants, conditions and agreements
contained in this Lease on the part of the LESSEE to be observed and performed,
all as herein provided, shall and may lawfully, peaceably and quietly have, hold
and enjoy the Leased Premises during the Term, subject to all of the terms and
provisions hereof, without hindrance, ejection or disturbance by the LESSOR or
by any person or persons claiming by, through or under the LESSOR or by anyone
claiming paramount title.
13. SUBORDINATION. The Lease and LESSEE's interest hereunder,
-------------
subject to the provisions of this Paragraph 13, shall be subordinate to the lien
of any present or future mortgage or mortgages upon the Leased Premises or any
property of which the Leased Premises are a part, irrespective of the time of
execution or the time of recording of any such mortgage or mortgages, and to
each advance made or to be made thereunder and to all renewals, modifications,
consolidations, and extensions thereof, and all substitutions therefor. Any
subordination of this Lease pursuant to the provisions of this Paragraph 13 is
made and granted upon the condition that, in the event of any entry by the
holder of any such mortgage to foreclose, a default under any such mortgage, a
foreclosure of any such mortgage of LESSOR's interest under this Lease or in the
Leased Premises through foreclosure or otherwise, the LESSEE shall (provided the
LESSEE is not then in default beyond any applicable cure period) peaceably hold
and enjoy the Leased Premises as a lessee of such holder, during the term upon
the terms, covenants and conditions as set forth in this Lease without any
hindrance or interruption from such holder. In the event of such entry,
foreclosure, acquisition or other action by such holder, LESSEE shall recognize
the holder of the mortgage with respect to which such action is taken as the
LESSOR
18
under this Lease. As used in this Paragraph 13, the word "holder" includes any
person claiming through or under any such mortgage, including any purchaser at a
foreclosure sale, and the word "LESSEE" shall include LESSEE's successors and
assigns. The word "mortgage" as used in this Paragraph shall mean mortgages,
deeds of trust, and other similar instruments held by any institutional lender
and all modifications, extensions, renewals and replacements thereof. This
Paragraph 13 is self-operative, and no further instrument of subordination shall
be required.
Notwithstanding the self-operative effect of this Paragraph 13, the
LESSEE agrees to execute such further documents in recordable form as the LESSOR
or any lender may reasonably require, consistent with the terms of this
Paragraph 13 and 21. Should the LESSEE fail to execute and deliver to the
LESSOR any such document within ten (10) days of a written notice requesting the
LESSEE to execute and deliver such document, LESSEE shall pay to LESSOR (as
liquidated damages and not as a penalty) the sum of Five Hundred ($500.00)
Dollars per day for each day after such tenth (10th) day during which such
failure to deliver such instrument continues, unless such failure is due to the
neglect of the LESSOR or its lenders.
LESSOR agrees to use its best efforts to cause any holder of any
mortgage or mortgages upon the Leased Premises or any property of which the
Leased Premises are a part to execute and deliver to LESSEE, within thirty (30)
days following the date of the execution of the Lease, a Non-Disturbance
Agreement regarding LESSEE's tenancy under this Lease. In addition LESSOR shall
use its best efforts to cause any future holder of any mortgage or mortgages
upon the Leased Premises or any property of which the Leased Premises are a part
to execute and deliver to LESSEE a Non-Disturbance Agreement regarding LESSEE's
tenancy under this Lease.
19
14. LESSOR'S ACCESS. The LESSOR or agents of the LESSOR may, at
---------------
reasonable times and upon reasonable prior notice to the LESSEE, enter to view
the Leased Premises or any part thereof and may remove placards and signs not
approved and affixed as herein provided, and make repairs and alterations which
LESSOR may deem necessary or desirable and, at LESSEE's expense, to remove any
alterations, additions, signs, or other improvements made by LESSEE, and not
consented to by LESSOR; to show the Leased Premises to others with reasonable
prior notice, in a manner so as not to unreasonably interfere with the normal
conduct of the LESSEE'S business, at any time within the four (4) month period
prior to the expiration of the Term; to affix to any suitable part of the Leased
Premises a notice for letting or selling the Leased Premises or property of
which the Leased Premises are a part and keep the same so affixed without
hindrances or molestation.
15. INDEMNIFICATION AND LIABILITY. The LESSEE shall defend, save
-----------------------------
harmless and indemnify LESSOR from any claims of liability for injury, loss,
accident or damage to any person or property while on the Leased Premises, if
not due to the negligence of LESSOR, or LESSOR's employees or agents, and to any
person or property anywhere occasioned by any omission, fault, negligence or
other misconduct of LESSEE and persons for whose conduct LESSEE is legally
responsible.
16. HOLDING OVER. LESSEE agrees to pay to LESSOR one and one-half
------------
(1 1/2) times the total of the Base Rent set forth in Paragraph 4 in effect for
the period immediately prior to LESSEE's holding over and one and one-half times
the additional rent provided for under this Lease then applicable for each month
or portion thereof LESSEE shall retain possession of the Leased Premises or any
part thereof after the termination of this Lease, whether by lapse of time or
otherwise, and also to pay all damages sustained by LESSOR on account thereof;
the
20
provisions of this Paragraph shall not operate as a waiver by LESSOR of any
right of re-entry provided in this lease.
16A. FURTHER LESSEE COVENANTS. LESSEE further covenants and agrees
------------------------
during the Term and such further time as LESSEE holds any part of the Leased
Premises:
(a) to pay when due all rent and other sums herein specified, without
offset, deduction set off or counterclaim except as otherwise specifically
provided in this Lease;
(b) not to obstruct in any manner any portion of any building not
hereby leased or the sidewalks or approaches to such building or any inside
windows or doors;
(c) that neither the original LESSOR nor any successor LESSOR who or
which is a trustee or a partnership, nor any beneficiary of the original LESSOR
or any successor LESSOR nor any partner, general or limited, of such partnership
shall be personally liable under any term, condition, covenant, obligation or
agreement expressed herein or implied hereunder or for any claim or damage or
cause at law or in equity arising out of the occupancy of the Leased Premises or
the use or maintenance of the Building and LESSEE specifically agrees to look
solely to the LESSOR's interest in the Complex for the recovery of any judgment
against LESSOR; and
(d) if any payment of rent or other sums due hereunder is not paid
when due, LESSEE shall pay to LESSOR a late charge equal to five (5%) percent of
the unpaid amount per month, or part thereof, that such amount remains unpaid.
17. FIRE, CASUALTY.
--------------
17.1 DEFINITION OF "SUBSTANTIAL DAMAGE" AND "PARTIAL DAMAGE". The
-------------------------------------------------------
term "substantial damage", as used herein, shall refer to damage which is of
such a character that the same cannot, in ordinary course, be expected to be
repaired within ninety (90) calendar days from the time that such repair work
would commence. Any damage which is not
21
"substantial damage" is "partial damage." In the event of substantial damage to
the Building, the LESSOR shall notify the LESSEE as soon as is practicable and
in no event later than thirty (30) days after such damage of LESSOR's estimated
time for repair of such damage.
17.2. PARTIAL DAMAGE TO THE BUILDING. If during the Lease Term there
------------------------------
shall be partial damage to The Building by fire or other casualty and if such
damage shall materially interfere with the LESSEE's use of the Leased Premises
as contemplated by this Lease, the LESSOR shall, to the extent insurance
proceeds are available to LESSOR, promptly proceed to restore the Building to
substantially the condition in which it was immediately prior to the occurrence
of such damage. Notwithstanding the foregoing, if there shall be partial damage
to the Building, and if such damage shall materially interfere with the LESSEE's
use of the Leased Premises as contemplated by this Lease occurring during the
last twelve (12) months of the Lease Term of such a character that the same
cannot, in ordinary course, be expected to be repaired within thirty (30) days
from the time such repair work would begin, the LESSOR may, within ten (10) days
of the date of such damage, elect to terminate this Lease. If such election is
not made, the LESSOR shall promptly proceed with such restoration.
17.3. SUBSTANTIAL DAMAGE TO THE BUILDING. If during the Lease Term
----------------------------------
there shall be substantial damage to the Building by fire or other casualty and
if such damage shall materially interfere with the LESSEE's use of the Leased
Premises as contemplated by this Lease, the LESSOR shall, to the extent
insurance proceeds are available to LESSOR, promptly restore the Building to an
architectural until that is not less suitable than that which existed prior to
such fire or casualty, unless the LESSOR or the LESSEE, within forty-five (45)
days after the occurrence of such damage, shall give notice to the other of its
election to terminate this Lease. If at any time during such forty-five - (45)
day period the LESSOR notifies the LESSEE of its
22
intention to restore the Building, the LESSEE must then give notice to the
Lessor, within ten (10) days of its receipt of the LESSOR's notice of intention
to restore the Building, as to whether the LESSEE will elect to terminate the
Lease. Should the LESSEE fail to elect to terminate the Lease within such ten -
(10) day period, the LESSEE's right to terminate under this Paragraph 17.3 shall
expire. If the LESSOR proceeds with the restoration of the Building and if such
damage shall not have been repaired to the extent necessary for the LESSEE to
resume its normal business operations at the Leased Premises by the end of the
180th day following the date of such fire or casualty, or if the LESSOR shall
fail diligently to cause such repair and restoration work to be performed then
the LESSEE may, at any time thereafter while the damage remains unrepaired,
terminate this Lease upon notice to the LESSOR. If the LESSOR or the LESSEE
shall give such notice of termination, then this Lease shall terminate as of the
date of such notice with the same force and effect as if such date were the date
originally established as the expiration date hereof.
17.4. ABATEMENT OF RENT. If during the Lease Term the Building shall
-----------------
be damaged by fire or casualty and if such damage shall materially interfere
with the LESSEE's use of the Leased Premises as contemplated by this Lease, a
just proportionate amount of the rent and other charges payable by the LESSEE
hereunder shall abate proportionately for the period in which, by reason of such
damage, there is such interference with the LESSEE's use of the Leased Premises.
17A. EMINENT DOMAIN. If the Building is totally taken by
--------------
condemnation or right of eminent domain, this Lease shall terminate as of the
date of such taking. If the Building, or such portion thereof as to render the
balance (if reconstructed to the maximum extent practicable in the
circumstances) physically unsuitable in the LESSEE's reasonable judgment for the
23
LESSEE's purposes, shall be taken by condemnation or right of eminent domain
(including a temporary taking in excess of 180 days), the LESSEE or the LESSOR
shall have the right to terminate this Lease by notice to the other of its
desire to do so, provided that such notice is given not later than ten (10) days
after the LESSEE has been deprived of possession.
Should any part of the Building be so taken or condemned or receive
such damage and should this Lease not be terminated in accordance with the
foregoing provisions, the LESSOR shall, to the extent condemnation proceeds are
available to LESSOR, promptly restore the Leased Premises to an architectural
unit that is suitable to the uses of the LESSEE permitted hereunder.
In the event of a taking described in this Paragraph 17A, the rent and
other charges payable hereunder, or a fair and just proportion thereof according
to the nature and extent of the loss of use shall be suspended or abated.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights
which the LESSEE may have for damages or injury to the Leased Premises for any
taking by eminent domain, except for damage to the LESSEE's trade fixtures,
personal property or equipment, if any, the LESSEE's right to relocation
expenses, if any, and the LESSEE's right for business interruption, if any.
18. DEFAULT AND BANKRUPTCY. In the event that:
----------------------
(a) The LESSEE, or any guarantor of LESSEE's obligations
hereunder, shall default in the payment of any installment of rent [within 5
days of the date the same is due (/s/ RAJ KGN CPS) or other sum herein
specified; or
(b) The LESSEE shall default in the observance or performance of
the LESSEE's covenants, agreements, or obligations hereunder (except as provided
in
24
Paragraph 18(a) above) and the LESSEE shall not cure such default within thirty
(30) days after written notice thereof or if such default cannot be cured within
thirty (30) days, then if LESSEE shall not commence to cure the same within
thirty (30) days and diligently pursue the curing of the same; or
(c) LESSEE makes any assignment for the benefit of creditors,
commits any act of bankruptcy or files a petition under any bankruptcy or
insolvency law; or if such a petition is filed against LESSEE and is not
dismissed within ninety (90) days; or if a receiver or similar officer becomes
entitled to LESSEE's leasehold hereunder and it is not returned to LESSEE within
ninety (90) days, or if such leasehold is taken on execution or other process of
law in any action against LESSEE;
then in any such case the LESSOR shall have the right thereafter,
while such default continues, to re-enter and take complete possession of the
Leased Premises, to declare the Term of this Lease ended, and remove the
LESSEE's effects at LESSEE's sole cost and expense, without prejudice to any
remedies which might be otherwise used for arrears of rent or other default.
The LESSEE shall indemnify the LESSOR against all loss and reasonable payment of
rent and other payments which the LESSOR may incur by reason of such termination
during the residue of the Term. In the event of default, LESSOR shall use its
reasonable efforts to re-let the Leased Premises so as to mitigate any damages
to the LESSEE hereunder. If LESSEE re-lets the Leased Premises, LESSEE may
offset its payable rent by the amount of rent received by LESSOR.
If the LESSEE shall default, after written notice thereof as
provided herein, in the observance or performance of any conditions or covenants
on its part to be observed or performed under or by virtue of any of the
provisions of this Lease and after the expiration of any
25
period within which the LESSEE is entitled to cure such default as is provided
above in this Paragraph 18, the LESSOR, without being under any obligation to do
so and without thereby waiving such default, may remedy such default for the
account and at the expense of the LESSEE. If the LESSOR makes any expenditures
or incurs any obligations for the payment of money in connection therewith,
including, but not limited to, reasonable attorney's fees (except for
unsuccessful suits against the LESSEE) in instituting, prosecuting or defending
any action or proceeding, such sums paid or obligations incurred, with interest
at the rate of twelve (12%) percent per annum and costs, shall be paid to the
LESSOR by the LESSEE as additional rent.
Nothing contained in this Lease shall limit or prejudice the right of
LESSOR to claim and obtain in proceedings for bankruptcy, insolvency or like
proceedings 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 claimed or proved,
whether or not the amount be greater, equal to, or less than the amount of the
loss or damages referred to above.
18A. DEFAULT OF LANDLORD AND MORTGAGE RIGHTS. LESSOR shall in no
---------------------------------------
event be in default in the performance of any of LESSOR's obligations hereunder
unless and until LESSOR shall have failed to perform such obligations within
thirty (30) days, or such additional time as is reasonably required to correct
any such default, after receipt of written notice by LESSEE to LESSOR properly
specifying wherein LESSOR has failed to perform any such obligation. LESSEE
agrees to give any mortgagee, by registered mail, a copy of any notice of
default served upon the LESSOR, provided that prior to such notice the LESSEE
has been notified in writing of the identity and address (by way of Notice of
Assignment of Rents and Leases, or otherwise) of the address of such mortgagee.
The LESSEE further agrees that if the
26
LESSOR shall have failed to cure such default within the time provided for in
this Lease, then the mortgagee shall have an additional sixty (60) days within
which to cure such default or if such default cannot be cured within that time,
then such additional time as may be necessary if within sixty (60) days the
mortgagee has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure) in which event this Lease shall
not be terminated while such remedies are being so diligently pursued.
18B. BANKRUPTCY OR INSOLVENCY.
------------------------
(a) LESSEE's INTEREST NOT TRANSFERABLE. Neither LESSEE's
----------------------------------
interest in this Lease nor any estate hereby created in LESSEE nor any interest
herein or therein shall pass to any trustee, except as may specifically be
provided pursuant to the Bankruptcy Code (11 USC Sec. 101, et seq.) or to any
-- ---
receiver or assignee for the benefit of creditors or otherwise by operation of
law.
(b) TERMINATION OF LEASE. Notwithstanding anything to the
--------------------
contrary contained in this Lease, in the event the interest or estate created in
LESSEE hereby shall be taken in execution or by other process of law or if
LESSEE or LESSEE's executors, administrators or assigns, if any, shall be
adjudicated insolvent or bankrupt pursuant to the provisions of any state law or
an order for the relief of such entity shall be entered pursuant to the
Bankruptcy Code, or if a receiver or trustee of the property of LESSEE shall be
appointed by reason of the insolvency or inability of LESSEE to pay its debits
or if any assignment shall be made of the property of LESSEE or LESSEE's
guarantor, if any, for the benefit of creditors, then and in any such events
this Lease and all rights of LESSEE hereunder shall automatically cease and
terminate with the same force and effect as though the date of such event were
the date
27
originally established herein and fixed for the expiration of the Term and
LESSEE shall vacate and surrender the Leased Premises but shall remain liable as
herein provided.
(c) LESSEE's OBLIGATION TO AVOID CREDITORS' PROCEEDINGS. LESSEE shall
---------------------------------------------------
not cause or give cause for the appointment of a trustee or receiver of the
assets of LESSEE and shall not make any assignment for the benefit of creditors
or become or be adjudicated insolvent. The allowance of any petition under any
insolvency law, except under the Bankruptcy Code or the appointment of a trustee
or receiver of LESSEE or LESSEE's guarantor, if any, or of the assets of either
of them, shall be conclusive evidence that LESSEE caused or gave cause therefor,
unless such allowance of the petition or the appointment of a trustee or
receiver is vacated within ninety (90) days after such allowance or appointment.
Any act described in this Paragraph shall be deemed a material breach of
LESSEE's obligations hereunder and this Lease shall thereupon automatically
terminate. LESSEE does, in addition, reserve any and all other remedies
provided in this Lease or in law.
(d) RIGHTS AND OBLIGATIONS UNDER THE BANKRUPTCY CODE. Upon the filing
------------------------------------------------
of a petition by or against LESSEE under the Bankruptcy Code, LESSEE, as debtor
and as debtor-in-possession, and any trustee who may be appointed agree as
follows: (i) to perform each and every obligation of LESSEE under this Lease
including, but not limited to, the manner of operation of this Lease, until such
time as this Lease is either rejected or assumed by order of the United States
Bankruptcy Court; (ii) to pay monthly in advance, on the first day of each
month, as reasonable compensation for use and occupancy of the Leased Premises,
an amount equal to all fixed annual Base Rent, additional rent and other charges
otherwise due pursuant to this Lease; (iii) to reject or assume this Lease
within sixty (60) days of the appointment of such trustee under Chapter 7 of the
Bankruptcy Code or within one hundred
28
twenty (120) days (or such shorter Term as LESSOR, in its sole discretion, may
deem reasonable, so long as notice of such period is given) of the filing of a
petition under any other chapter; (iv) to give LESSOR at lease forty five (45)
days' prior written notice of any proceeding relating to any assumption of this
Lease; (v) to give at least thirty (30) days' prior written notice of any
abandonment of the Leased Premises, with any such abandonment to be deemed a
rejection of this Lease and an abandonment of any property not previously
removed from the Leased Premises; (vi) to do all other things of benefit to
LESSOR otherwise required under the Bankruptcy Code; (vii) to be deemed to have
rejected this Lease in the event of the failure to comply with any of the above;
and (viii) to have consent to the entry of any order by an appropriate United
States Bankruptcy Court providing all of the above, waiving notice and hearing
of the entry of same.
No default of this Lease by LESSEE, either prior to or subsequent to
the filing of such a petition, shall be deemed to have been waived unless
expressly done so in writing by LESSOR.
Included within and in addition to any other conditions or obligations
imposed upon LESSEE or its successor in the event of assumption and/or
assignment are the following: (i) the cure of any monetary defaults and the
reimbursement of pecuniary loss immediately upon entry of a court order
providing for assumption and/or assignment; (ii) the deposit of an additional
sum equal to three (3) months' rent to be held as a security deposit; (iii) the
use of the Leased Premises as set forth in the Paragraph 7 of this Lease; (iv)
the payment of any sums which may then be due or which may thereafter become due
under the provisions of this Lease; (v) the debtor, debtor-in-possession,
trustee or assignee of such entity demonstrates in writing that it has
sufficient background, including but not limited to, substantial commercial
experience in buildings of comparable size and financial ability to operate a
commercial establishment out of
29
the Leased premises in the manner contemplated in this Lease, and meets all
other reasonable criteria of LESSOR as did LESSEE upon execution of this Lease;
(vi) the prior written consent of any mortgagee to which this Lease has been
assigned as collateral security; and (vii) the Leased Premises at all times
remains a single store (if retail) and no physical changes of any kind may be
made to the Leased Premises unless in compliance with the applicable provisions
of this Lease.
Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed without further act or deed to
have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall, upon demand, execute and
deliver to LESSOR an instrument confirming such assumption in accordance with
the terms of Paragraph 21 hereof.
19. RULES AND REGULATIONS. The LESSOR shall have the right to
---------------------
institute and to change from time to time, rules and regulations for the use of
the Building and the Lot by commercial office lessees, and by commercial retail
lessees, which shall be reasonable in all instances and shall be uniformly
applicable to all commercial lessees in the Building and the LESSEE agrees to
abide thereby.
19A. PARAGRAPH HEADINGS. The paragraph headings throughout this
------------------
instrument are for convenience and reference only, and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
20. BROKER. The LESSOR and LESSEE each represent and warrant to the
------
other that each has had no dealings with any Brokers concerning this Lease,
except ROBERT A.
30
JONES AND COMPANY and each party agrees to indemnify and hold the other harmless
for any damages occasioned to the other by reason of a breach of this
representation and warranty.
21. ESTOPPEL CERTIFICATE. LESSOR and LESSEE each agree at any time
--------------------
from time to time, upon not less than ten (10) days prior notice to execute,
acknowledge and deliver to the other, a statement in writing, certifying to the
extent possible that this Lease is unmodified and in full force and effect, or
if there have been modifications, that the same is in full force and effect as
modified and stating such modifications, and otherwise certifying if there
exists any default under the terms of this Lease and such other information as
may be reasonably requested concerning this Lease by the other party or any
other third party with a bona fide interest. Should either party fail to
deliver to the other party any such statement within ten (10) days of receipt of
a written notice requesting any such statement, the party failing to deliver any
such statement shall pay to the requesting party, the sum of Five Hundred
($500.00) Dollars per day (as liquidated damages and not as a penalty), for each
day after such tenth (10th) day during which such failure continues.
22. NOTICE. Any notice from the LESSOR to the LESSEE relating to the
------
Leased Premises or to the occupancy thereof shall be deemed duly served, if in
writing and mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed to the LESSEE,
COURTNEY P. SNYDER, PRESIDENT
TELECONVERSANT, LTD.
One Kendall Square - Building 400
Cambridge, Massachusetts 02139
Any notice from the LESSEE to the LESSOR relating to the Leased Premises or to
the occupancy thereof, shall be deemed duly served, if in writing and mailed to
the LESSOR by registered or certified mail, return receipt requested, postage
prepaid, addressed to the LESSOR
31
at such address as the LESSOR may from time to time advise in writing, the
following now being designated:
OLD CAMBRIDGE REALTY TRUST
The Athenaeum Group
215 First Street
Cambridge, Massachusetts 02142-1268
and
Old Kendall Realty Trust
The Athenaeum Group
215 First Street
Cambridge, Massachusetts 02142-1268
23. SURRENDER. The LESSEE shall at the expiration or other
---------
termination of this Lease yield up and peaceably surrender all portions of the
Leased Premises to LESSOR and shall remove all LESSEE's goods and effects
therefrom (including, without hereby limiting the generality of the foregoing,
all signs and lettering affixed or painted by the LESSEE, either inside or
outside the Leased Premises). LESSEE shall deliver to the LESSOR the Leased
Premises and all keys, locks thereto, and all fixtures, alterations and
additions made to or upon the Leased Premises, except for moveable partitions
and furnishings installed at the LESSEE's expense, in the same condition as they
were at the commencement of the Term, or as they were put in during the Term
hereof, reasonable wear and tear and damage by fire, other casualty or eminent
domain and matters for which the LESSOR is responsible hereunder only excepted.
All moveable partitions and furnishings, installed in the Leased Premises at the
LESSEE's expense prior to or during the Term of the Lease may be removed by the
LESSEE at the expiration or other termination of the Lease. The LESSEE shall,
at its expense, promptly repair any and all damage to the Leased Premises
resulting from such removal. In the event of the LESSEE's failure to remove any
of the LESSEE's property from the Leased Premises, LESSOR is hereby authorized,
upon fifteen (15) days written notice to the LESSEE without liability to LESSEE
for
32
loss or damage thereto, and at the sole risk of LESSEE, to remove and store
and/or sell any of the property at LESSEE's sole cost and expense.
24. OPTION TO EXTEND. If the LESSEE is not then in default, LESSOR
----------------
does hereby grant to LESSEE the option to extend this Lease for one (1)
additional five (5) year term, commencing on the expiration of the Initial Term
upon the same terms and conditions as herein contained except the annual Base
Rent set forth in Paragraph 4 hereof shall be at the rate set forth below. The
option shall be exercised by written notice from LESSEE and received by LESSOR
at least six (6) months prior to the expiration of the Initial Term. The annual
Base Rent for the Extended Term shall be adjusted at the commencement of the
Extended Term and shall be at the annual Base Rent of the Initial Term increased
by One Dollar per rentable square foot per year for each year of the Extended
Term.
25. TERMINATION OF PRIOR LEASE. Upon Commencement of this Lease, or,
--------------------------
if LESSEE has not yet vacated its space in Building 300, upon two (2) weeks
written notice from LESSEE to LESSOR of LESSEE's intent to terminate the
Building 300 Lease, the Prior Lease between TELECONVERSANT, LTD., and OLD
CAMBRIDGE REALTY TRUST dated February 23, 1987 (First Addendum to Lease dated
July 11, 1990, Second Addendum to Lease dated September 21, 1992, Third Addendum
to Lease dated March 29, 1993, Fourth Addendum to lease dated January 24, 1994,
and Fifth Addendum to lease dated June 19, 1995) shall automatically be
terminated. Upon this Termination Date the LESSEE shall vacate the Building 300
space occupied via the Prior Lease and all future obligations on the part of
either party with regard to the Prior Lease shall cease. Any outstanding
charges due as of this date shall be paid simultaneous with the execution of
this Lease.
33
26. MISCELLANEOUS.
-------------
(a) If LESSEE has not provided them to LESSOR prior to the
execution of this Lease, LESSEE shall submit annual financial statements to the
LESSOR containing statements of cash flows. If the LESSEE is a publicly traded
corporation it shall supply LESSOR, on a quarterly basis, with its 10Q filings.
If such information has been heretofore provided, then this annual provision
will not be required.
(b) The LESSOR reserves the right to assign or transfer any and
all of its right, title and interest under the Lease, including but not limited
to the benefit of all covenants of the LESSEE hereunder. Notwithstanding
anything contained in this Lease to the contrary, it is specifically understood
and agreed that the obligations imposed upon the LESSOR hereunder shall be
binding upon the LESSOR and LESSOR's successors in interest only with respect to
breaches occurring during LESSOR's and LESSOR's successors' ownership of
LESSOR's interest hereunder and LESSOR and its successors in interest shall not
be liable for acts and occurrences arising from and after the transfer of their
interest as LESSOR hereunder.
(c) This Lease shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, as the same may from time to
time exist.
(d) This Lease contains all of the agreements of the parties with
respect to the subject matter thereof and supersedes all prior oral and written
negotiations and dealings between them with respect to such subject matter. The
agreement of the parties contained in this Lease shall not be modified or
amended unless such modification or amendment is in writing and signed by the
parties.
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(e) The LESSEE acknowledges that LESSEE has not been influenced
to enter into this Lease nor has it relied upon any warranties or
representations not set forth or incorporated in this Lease or previously made
in writing.
The undersigned Trustees of OLD CAMBRIDGE REALTY TRUST do hereby
certify that they each were authorized by all of the beneficiaries of said Trust
to execute and acknowledge the within Lease on behalf of the Trust.
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IN WITNESS WHEREOF, the LESSOR AND LESSEE have hereunto set their
hands and common seals this 15th day of February 1996.
OLD CAMBRIDGE REALTY TRUST
/s/ Robert A. Jones /s/ Allan R.
- ------------------------------ ------------------------------
ROBERT A. JONES, Trustee WITNESS
/s/ K. George Najarian /s/ Allan P.
- ------------------------------ ------------------------------
K. GEORGE NAJARIAN, Trustee WITNESS
TELECONVERSANT, LTD.
(LESSEE)
By: /s/ CP Snyder /s/ Mark S. Pashow
--------------------------- ------------------------------
President, duly authorized WITNESS
By: /s/ DJ /s/ Paul B
--------------------------- ------------------------------
Treasurer, duly authorized WITNESS
OLD KENDALL REALTY TRUST
/s/ Robert A. Jones /s/ Allan P.
- ------------------------------ ------------------------------
ROBERT A. JONES, TRUSTEE WITNESS
/s/ K. George Najarian /s/ Elaine M. Gilis
- ------------------------------ ------------------------------
K. GEORGE NAJARIAN, TRUSTEE WITNESS
36