Exhibit 10.4
LEASE
THIS AGREEMENT made as of the 1st day of February, 1990, by and between
Lisa S. Cohen of 33 Reservoir Drive, Newton, Massachusetts 02167 and Mark N.
Spencer of 1600 Villa Street, #212, Mountainview, California 94041 (hereinafter
referred to as the "Landlord") and Uno Restaurants, Inc. a Massachusetts
corporation with a principal place of business at 100 Charles Park Road, West
Roxbury, Massachusetts 02132, (hereinafter referred to as the "Tenant").
WITNESSETH that the Landlord does hereby lease to the Tenant, and the
Tenant does hereby take and hire from the Landlord, upon the terms and
conditions hereinafter set forth, the buildings and land located at and numbered
45 Charles Park Road and 192 and 206 Gardner Street, West Roxbury, Massachusetts
(the "Premises"), together with the right to use in common with others entitled
thereto the sidewalks, walkways, parking areas, driveways, entrances, hallways,
stairways, and elevators, if any. The Premises are let "as is."
Upon reasonable notice to Tenant, the Landlord also reserves the right
of access to any entry on the entire Premises by the Landlord and its agents and
for the purpose of making repairs and alterations to the Premises and to the
buildings thereon if Landlord so elects.
1. TERM: The term of this Lease is for a term of fifteen (15) years
commencing on February 1, 1990 and expiring on January 31, 2005. The term may be
extended by Tenant pursuant to the options to extend set forth in Section 23 of
this Lease.
2. RENT: Tenant agrees to pay to Landlord during the term hereof, in
lawful currency of the United States Government, Base Rent, to be paid in twelve
(12) equal monthly installments in advance on the first day of each and every
month during the term hereof, in accordance with Schedule A annexed hereto
entitled "SCHEDULE OF BASE RENT", and made a part hereof. Base Rent shall be
adjusted proportionately for any partial month hereof. Tenant shall also pay to
Landlord additional rent, as provided herein, which includes amounts designated
as Tax Rent where the context provides, or as otherwise provided.
3. REAL ESTATE TAXES AND OPERATING EXPENSES: Commencing February 1,
1990, Tenant shall pay to Landlord, as additional rent, the entire (100%) real
estate taxes imposed upon the Premises by the municipality in which the Premises
are located ("Tax Rent"). Tenant shall pay Landlord Tax Rent within ten (10)
days of Landlord's presentation to Tenant by Landlord of a statement of actual
taxes due, which statement shall include a copy of .the actual tax bill. In
addition, Tenant shall pay all taxes upon its personal property, fixtures, signs
and equipment in or upon the Premises.
The expression "Real Estate Taxes" shall include betterment
assessments, so-called rent taxes, and other governmental charges which may be
charged, assessed or imposed upon the Premises. The Tenant agrees that if at any
time during the term of this lease the methods of taxation for computing
assessed value and/or tax rates prevailing at the time of the
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commencement of the term hereof shall be altered so as to cause the whole or any
part of the said taxes, assessments, levies, impositions or charges, not or
hereafter levied or assessed or imposed on the real estate and the improvements
thereon, to be levied, assessed and imposed, wholly or partially as a capital
levy or otherwise on the rents received therefrom, or if any tax, corporate
franchise assessment, levy, whether municipal, state or federal, imposition or
charge or any part or portion thereof shall be measured by or based in whole or
in part upon the Premises and shall be imposed upon the Landlord, then all such
taxes, assessments, levies, impositions or charges, or part thereof so measured
or based, shall be deemed to be included within the term "Real Estate Taxes", to
the extent that such impositions would be payable if the Premises were the only
property of the Landlord, subject to such imposition, and the Tenant shall pay
and discharge the same as herein provided in respect to payment of real estate
taxes. Tenant shall not, however, be chargeable hereunder with payment of any
estate or inheritance taxes or income taxes, but shall be chargeable with any
rent taxes as such or any levy, tax or assessment which has the effect of
reducing the method of computing the real estate tax bills applicable to the
demised Premises at the time of commencement hereof.
Tenant shall be responsible for providing and directly paying for all
operating expenses of the Premises and for all utilities (as provided in Section
6) and for all repairs and maintenance to the Premises of whatever nature,
including structural (as provided in Section 7). In the event, however, that
Tenant defaults in its performance or observance of those obligations and
Landlord cures such default pursuant to Section 20, Landlord's expenses and
costs so incurred shall be deemed additional rent payable upon demand as
provided for in Section 20.
4. PERMITTED USE: The Tenant shall use the Premises primarily for the
purposes of general office and other uses incidental-thereto including, but not
limited to, the storage of supplies and material associated with Tenant's
business. The Tenant shall have the use of the parking spaces presently located
on the Premises which shall be used solely for parking by Tenant's employees,
invitees, agents and servants, provided, however, that Landlord reserves to
itself the right to obstruct temporally all or a portion of such spaces
presently located on the Premises, provided, however, that in all events Tenant
shall be able to receive goods and deliveries by truck at the Premises at all
times during regular business hours without obstruction.
5. TENANT'S COVENANTS: Tenant hereby covenants with the Landlord: that
during the term of this lease and for such further time as the Tenant shall hold
or occupy Premises or any part thereof:
(a) Tenant will pay to Landlord, or its agents, Base Rent, Tax
Rent, and additional rent at such place as Landlord shall from time to
time designate.
(b) Tenant will also promptly on demand pay the cost of all
loss or damage caused or occasioned by any nuisance or negligence made
or suffered on said Premises by the Tenant or by the use or escape of
water thereon or therefrom.
(c) Tenant will keep, and will surrender to the Landlord at
the termination of its holding hereunder, however terminated, the
Premises, including all fixtures, furniture, equipment and other
property of the Landlord on Premises, in as good order, repair and
condition as they now are or may be put in hereafter, ordinary wear and
tear and damage
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by fire and other casualty only excepted together with any additions
and/or improvements constructed by Tenant; will keep whole the glass in
the Premises; will suffer no strip or waste hereof; will not make or
suffer any structural alterations or erections to be made in the
Premises except with the written consent of the Landlord provided,
however, that nonstructural alterations and erections shall be
permitted upon prior notice to Landlord, nor any signs or placards to
be placed thereon without first obtaining the consent in writing of the
Landlord, which consent shall not be unreasonably withheld or delayed;
and will comply with all rules and regulations of public authorities
and insurance rating bureaus.
(d) Tenant will hold Landlord harmless and exonerated against
all claims for damages to persons or property on the Premises, however
caused, unless caused by neglect or failure of the Landlord or persons
for whom it is legally responsible, and all property of Tenant of any
kind and nature that may be on the Premises or elsewhere in the
buildings during the continuance of this lease or thereafter shall be
at the sole risk of the Tenant, unless damage to said property is
caused by neglect or failure of the Landlord or persons for whim it is
legally responsible.
(e) The Tenant will use the Premises only for the use
permitted in Section 4 hereof. No trade or occupation shall be
conducted in the Premises or use made thereof which will be unlawful,
improper, noisy or offensive, or contrary to any law or any by-law or
ordinance in force in the municipality in which the Premises are
located, including, without limitation, Chapters 21C and 21E of the
Massachusetts General laws. Nor will Tenant overload the Premises or
permit the use of the Premises in any manner to make void or voidable,
or increase the cost of insurance or the Landlord's property caused by
Tenant's occupancy or use that is likely to cause unreasonable wear to
the buildings of which the Premises are a part, or that may be deemed
to or create a public private nuisance.
(f) Tenant shall also pay, on demand as additional rent,
Landlord's expenses, including reasonable attorneys fees incurred in
enforcing any obligations of Tenant under this Lease with which Tenant
has wrongfully failed to comply.
(g) The following rules and regulations shall be faithfully
kept and performed by the Tenant, its agents, servants or visitors:
(i) No signs shall be permitted on the roof of the
Premises and no projecting signs or signs on the exterior of
any building shall be permitted except as approved in writing
by the Landlord, which approval shall not be unreasonable
withheld or delayed. All approved signs shall meet all
applicable sign ordinances and building code requirements of
all municipal and state authorities.
(ii) All common facilities of the building that are
used by the Tenant, its agents, servants or visitors at any
time other than regular business hours of the building shall
be so used at such person's sole risk.
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(iii) Tenant shall dispose of all its rubbish and
debris in a clean and neat manner and may, at its expense,
place a dumpster on the Premises at a location approved by
Landlord.
6. UTILITIES: The Tenant shall provide, and the Tenant shall pay for,
all utilities serving the Premises including without limitations, water and
sewer use charges, fire pipe charges, electricity, and gas. Tenant also shall
pay for all heat and air conditioning to the Premises. Wherever feasible, at
Tenant's expenses such utilities shall be separately metered and billed to
Tenant. If Tenant requires additional air conditioning for business machines or
other purposes or requires unusual electrical loads, any additional air
conditioning units, chillers, condensers, compressors, ducts, piping and other
equipment shall be installed and maintained by Tenant at its sole cost and
expense but only to the extent that the same are compatible with the building
and its mechanical systems. The Landlord shall. not be reasonable for providing
any utilities.
7. REPAIRS AND MAINTENANCE: The Landlord shall not be responsible for
any repairs or maintenance to the Premises of whatever nature. The Tenant shall
maintain, replace and repair the Premises and all its structural aspects
including, but not limited to the roof, exterior walls, foundation, floor slabs
supporting beams, as may be necessary to keep them in good condition consistent
with the condition of the Premises at the commencement of this Lease. Tenant
shall maintain the Premises in good condition and Tenant shall make all such
repairs to the Premises and to all systems including, but not limited to, the
electrical, heating, air conditioning, ventilating and plumbing systems,
windows, glass and elevators, as may be necessary to keep them in good condition
consistent with the condition of the Premises at the commencement of this lease.
Tenant shall promptly remove show and ice from the Premises including, without
limitation, the grounds, sidewalks, driveways and parking areas. Tenant shall
maintenance and repair in all respects the grounds, parking areas, sidewalks,
driveways and lawns including any landscaped areas.
8. INSURANCE:
(a) Tenant will procure and maintain, at its sole cost and
expense, general public liability insurance with respect to the
Property and its appurtenances, naming the interest of the Landlord as
an additional named insured with companies reasonably satisfactory to
Landlord, which said policy or policies shall contain a non-cancelable
clause without twenty (20) days written notice to the Landlord, in the
amount of $1,000,000.00 for death or injury to two or more persons for
a single occurrence; plus $500,000 for property damage.
(b) At Landlord's election, Tenant shall procure and maintain,
at its sole cost and expense, extended coverage "open perils", fire and
casualty insurance and umbrella liability with respect to the Premises
designating the interest of the Landlord as an additional named insured
in such amounts and with companies reasonably satisfactory to Landlord,
which policies shall contain a non-cancelable clause without twenty
(20) days written notice to Landlord.
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(c) Tenant shall deliver to Landlord certificates of such
insurance at the commencement of the term of' this lease, and each
renewal certificate of such policies, at least twenty days prior to the
expiration of the policy it renews.
9. LANDLORD'S ACCESS TO PREMISES: The Landlord or its agents may] from
time to time, upon reasonable notice to Tenant, enter the Premises to view them,
to show them to prospective purchasers or lenders, and to make repairs on the
same or elsewhere in said buildings. During the last six months of the term if
it so elects, Landlord may attach and keep on any suitable portion of the
Premises a notice for the letting the same, and may show the Premises to
prospective tenants of the Premises-at reasonable times, provided none of the
foregoing shall unreasonably interfere with the normal business operations of
the Tenant.
10. WAIVERS: No waiver by the Landlord and no assent, express or
implied, to any breach on the part of the Tenant of any covenant, agreement,
condition or duty shall ever be held or construed as waiver of or consent to any
breach of the same or of any other covenant, agreement, condition or duty, in
the event of a breach by the Tenant of any covenant, agreement or condition
which is conditioned upon the consent or approval of the Landlord, neither the
acceptance of rent by the Landlord to take action on account of such breach or
to enforce its rights resulting therefrom shall be deemed a waiver, but such
breach shall be continuing breach until the written consent or approval of the
Landlord is obtained.
11. QUIET ENJOYMENT: The Landlord covenants that upon paying the rent
and other charges herein provided and keeping and performing all agreements and
covenants on the part of the Tenant to be performed, the Tenant shall and may
peaceably and quietly hold the Premises for the term as aforesaid, subject to
applicable building and zoning ordinances or such other laws which are or may
become applicable. Tenant acknowledges that this covenant of quiet enjoyment
particularly and this Lease generally, contemplate that Tenant shall bear the
risk to all lawful constraints upon the Premises, the buildings thereon and the
use thereof by all laws, regulations, and judicial or administrative
proceedings, including without limitation, pre-existing and/or subsequent
conflicts with zoning and other requirements, if any.
12. DEFAULT:
(a) DEFAULT BY TENANT: If Tenant shall (1) fail to pay to
Landlord any installment of Base Rent or additional rent as and when
the same shall become due and payable, and such default shall continue
for ten (10) days after written notice thereof; or (2) fail to perform
or observe any covenants or other obligations of Tenant hereunder and
such default shall continue for twenty (20) days after written notice
thereof or, with respect to a default which is not susceptible of a
cure within twenty (20) days, if Tenant. shall not within said period
commence to cure such default and thereafter prosecute the curing of
such default to completion with due diligence; or (3) if Tenant shall
vacate or abandon the Premises for more than twenty (20) days; or (4)
if Tenant 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 Tenant and
is-not dismissed within thirty (30) days, or if Tenant's interest in
this Lease is taken on execution or other process of law in any action
against Tenant, then, in any such event,
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each of which shall constitute an event of default hereunder, Landlord
shall have any of the following separate remedies, without barring
later election of any other remedy:
(i) Landlord lawfully may, in addition to any other
rights for that or any preceding breach, immediately or at any
time thereafter and without demand, notice or process of law,
enter upon any part of the Premises in the name of the whole
(forcibly if necessary), or mail a notice of termination
addressed to Tenant at the Premises, and thereby repossess the
same as of Landlord's former estate. Upon such entry of
mailing, as the case may be, the Term shall terminate, all
executory rights of Tenant and all obligations of Landlord
under this Lease shall immediately cease and Landlord may
expel Tenant and all persons claiming through Tenant and
remove its and their effects (forcibly if necessary) without
being deemed guilty of any trespass and without prejudice to
any other remedies available for arrears of rent or other
breach. Tenant waives any statutory and equitable rights in
the nature of further cure or redemption. Tenant agrees that a
notice by Landlord alleging any default shall, at Landlord's
option (the exercise of such option shall be indicated by the
inclusion of the words "notice to quit" in such notice),
constitute a statutory notice to quit and waives any further
notices to quit or of intention to re-enter. Landlord and
Tenant waive trial by jury in any action which they are
parties. Tenant further agrees that it shall not interpose any
counterclaim or set-off in any summary proceeding or in any
action based in whole or in part on non-payment of rent.
(ii) If Landlord terminates this lease for default,
Tenant shall reimburse Landlord for all expenses arising out
of such termination, including, without limitation, all costs
incurred in collecting amounts due from Tenant under this
Lease (including attorneys' fees, costs of litigation); all
reasonable expenses incurred by Landlord in attempting to
relet the Premises or parts thereof (including advertisements,
brokerage commissions, Tenant's allowances, costs of preparing
space, and the like); and all Landlord's other reasonable
expenditures necessitated by the termination. The
reimbursement from Tenant shall be due and payable immediately
from time to time upon notice from Landlord that an expense
has been incurred, without regard to whether the expense was
incurred before or after the termination.
(iii) Landlord may elect by written notice to Tenant
within four months following such termination to be
indemnified for loss of rent by a lump sum payment
representing the amount of rent which would have been .paid in
accordance with this Lease for the remainder of the Term minus
the aggregate fair market rent payable for the Premises for
the remainder of the Term (if less than the rent payable
hereunder), estimates as of the date of the termination, and
taking into account reasonable projections of vacancy, time
required to lease, etc. (For the purpose of calculating the
rent which would have been paid under for the lump sum
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payment calculation described heroin, the last full year's
additional rent are to be deemed constant for each year
thereafter.) Should the parties be unable to agree on a fair
market rent, the matter shall be submitted upon the demand of
either part, to arbitration as set forth in Section 20 hereof.
If, at the end of the stated Term, the rent which Landlord has
actually received from the Premises is less than the aggregate
fair market rent estimated as aforesaid, Tenant shall
thereupon pay Landlord the amount of such difference. Should
Landlord fail to make the election provided for in this
paragraph, Tenant shall indemnify Landlord for the loss of
rent by a payment at the end of each month which would have
been included in the Term, representing the difference between
the rent which would have been paid in accordance with this
Lease (Base Rent, Tax Rent and additional rent which would
have been payable to be ascertained monthly) and the rent
actually derived from the Premises by Landlord for such month
(the amount of rent deemed derived shall be the actual amount
less any portion thereof attributable to Landlord's relating
expenses which have not been reimbursed by Tenant thereunder).
In lieu of any other damages or indemnity and in lieu of full
recovery by Landlord of all sums payable under all the
foregoing provisions of this paragraph, Landlord may by notice
to Tenant, elect to recover, and Tenant shall thereupon pay,
as liquidated damages, an amount equal to the lesser of (i)
the aggregate of the Base Rent, Tax Rent and additional rent
for the balance of the term had it not been terminated, or
(ii) the aggregate thereof for the 12 months ended next prior
to such termination, plus in either case the amount of Base
Rent, Tax Rent and additional rent of any kind occurred and
unpaid at the time of termination and less the amount of any
recovery by Landlord under the foregoing provisions of this
Section up to the time of payment of such liquidated damages
(but not less any amounts of reimbursement).
13. LATE RENT: If any payment of Base Rent, Tax Rent and additional
rent, or other payment due from Tenant to Landlord is not paid within ten (10)
days of the due date, then Landlord may, at its option, without notice and in
additional to all other remedies hereunder, impose a late charge on tenant equal
to one-twelfth of the annual interest on the amount in .question calculated at
the prime rate of interest announced from time to time to time by the Bank of
New England, plus 5%, for each month and part thereof during which such
delinquency continues. Such late charge shall constitute additional rent
hereunder payable on demand.
14. SUBORDINATION: Tenant agrees that upon the request of Landlord, it
will subordinate this Lease and the lien hereof to the lien of any present or
future mortgage or mortgages upon the Premises or any property of which the
Premises are a part, irrespective of the time of execution or time of recording
of any such mortgage or mortgages, provided however, that the mortgagee shall
agree that for as long as the Tenant duly performs all of its obligations under
this Lease the mortgagee and its successors will not disturb the possession and
other rights of Tenant under this Lease and will accept Tenant as Tenant under
the terms and conditions and for the duration of this Lease. Tenant agrees that
it will upon the request of Landlord execute, acknowledge and deliver any and
all instruments deemed by Landlord necessary desirable to
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give effect to or notice of such subordination. The word "mortgage" as used
herein includes mortgages, deeds of trust or other similar instruments and
modifications, consolidations, extensions, renewals, replacements and
substitutes thereof. Whether the lien of any mortgage upon the demise Premises
of any property of such the demised Premises are a part shall be superior or
subordinate to this Lease and the lien hereof, Tenant agrees that, if requested
by Landlord or by the holder of such mortgage, it will attorn to the holder of
such mortgage or anyone claiming such holder and their respective successors and
assigns in the event of a foreclosure of or similar action taken under such
mortgage.
15. SUBROGATION: Each party will, on request of the other, when it can
be arranged without affecting the requested party's right to settle losses and
receive proceeds and without cost, cause the requested party's fire and casualty
insurance with respect to the demised Premises and property therein to be so
written that the insurer will not have rights of subrogation against the
requesting party. Each party hereby waives any right of recovery against the
other for loss or injury to the extent the waiving party is protected by
insurance so written.
16. DAMAGE BY FIRE OR OTHER CASUALTY: If the Premises or any part
thereof shall be damaged by fire or other insured casualty, then, subject to the
last paragraph of this Section, Landlord shall proceed with diligence, subject
to the then applicable statutes, building codes, zoning ordinances, and
regulations of any governmental authority, and at the expense of Landlord (but
only to the extent of insurance proceeds made available to Landlord by any
mortgagee of the Premises) to repair or cause to be repaired such damage,
provided, however, in respect of such alterations, decorations, additions and
improvements originally made or installed by tenant at Tenant's expense, as
shall have been damaged by such fire or other casualty and which (in the
judgement of Landlord) can more effectively be repaired as an integral part of
the repair work on the Premises, that the repairs to such Tenant's alterations,
decorations, additions and improvements shall be performed by Landlord due at
Tenant's expense. All repairs to and replacements of property which Tenant is
entitled to remove shall be made by and at the expense of Tenant. If the
Premises or any part thereof shall have been rendered unfit for use and
occupation hereunder by reason of such damage the Base Rent, or a just and
proportionate part thereof, according to the nature and extent to which the
Premises shall have been so rendered unfit, shall be suspended or abated until
the Premises (except as to the property which is to be repaired by or at the
expense of Tenant) shall have been restored as nearly as practicable to the
condition in which they were immediately prior to such fire or other casualty,
provided, however, that if such casualty shall able so extensive that the
restoration or repair cannot be effected within nine months from the date upon
which insurance proceeds become available then Tenant may terminate this Lease
by notifying Landlord of such election and provided, further that if Landlord or
any mortgagee of the Premises shall be unable to collect the insurance proceeds
(including rent insurance proceeds) applicable to such damage because of some
action or inaction on the part of Tenant, or the employees, licensees or
invitees of Tenant, the cost of repairing such damage shall be paid by Tenant
and there shall be no abatement of rent and no right to terminate hereunder.
Landlord shall not be liable for delays in the making of any such repairs which
are due to government regulation, casualties and strikes, unavailability of
labor and materials, and other causes beyond the reasonable control of Landlord,
nor shall Landlord be liable for any inconvenience or annoyance to Tenant or
injury to the business of Tenant resulting from delays in repairing such damage.
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If, at any time the Premises is so damaged by fire or other casualty
(whether or not insured) that substantial alteration or reconstruction or
demolition of the Premises shall in Landlord's judgment be required; or if at
any time damage to the Premises occurs by fire or other insured casualty and any
mortgagee shall refuse to permit insurance proceeds to be used for the repair or
replacement thereof and Landlord decides not to repair such damage, then and in
any of such events, this Lease and the Term may be terminated at the election of
Landlord by notice to Tenant within 90 days of such casualty or within such
longer time as may be required by Landlord to complete arrangements with any
mortgagee regarding such casualty, terminating the Term not less than 30 days
after the day on which such termination notice is received by Tenant. In the
event of any termination, this Lease and the Term shall expire as of the date
specified in the notice as though that were the date originally stipulated. in
Section ! for the end of the Tern and the annual Base Rent, Tax Rent and
additional rent shall be proportioned as of such date.
17. EMINENT DOMAIN: In case during the Term all or any substantial part
of the Premises are taken by eminent domain or Landlord receives compensable
damage by reason of anything lawfully done in pursuance of public or other
authority, this Lease shall terminate at Landlord's election, which may be made
notwithstanding that Landlord's entire interest may have been divested, by
notice given to Tenant within 90 days after the election to terminate arises
specifying the effective date of such termination. The effective date of
termination specified by Landlord shall not be less than five (5) nor more than
thirty (30) days after the date of notice of such termination. In case during
the term, fifty percent (50%) or more of the Property is taken by eminent domain
or condemnation, the Tenant may elect to terminate this Lease by notice given to
Landlord with sixty (60) days after the election to terminate arises specifying
the effective date of termination which shall be not less than ten (10) nor more
than thirty days after the notice of such termination unless terminated pursuant
to the foregoing provisions, this Lease shall remain in full force and effect
following any such taking, subject, however, to the following provision. If in
any such case the Premises are rendered unfit for use and occupation and this
Lease is not terminated, Landlord shall use due diligence (following the
expiration of the period in which provision of this section) to put the
Premises, or what may remain thereof, into proper condition for use and
occupation and just portion of the Base Rent, Tax Rent and additional rent
according to the nature and extent of the injury shall be abated until the
Premises or such remainder shall have been put by Landlord in such condition;
and in case of a taking which permanently reduces the are of the Premises, a
just proportion of the Base Rent, Tax Rent and additional rent shall be abated
for the remainder of the Term.
Except for Tenant's relocation expenses (specifically so designated)
Landlord reserves to itself any and all rights to receive awards made for
damages to the Premises and the leasehold hereby created, or any one or more of
them, accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuant of public or other authority. Tenant hereby release
and assigns to Landlord all Tenant's rights to such awards and covenants to
deliver such further assignments and assurances thereof as Landlord may from
time to time request, hereby irrevocably designating and appointing Landlord as
its attorney-in-fact to execute and deliver in Tenant's name and behalf all such
further assignments thereof.
18. ASSIGNMENT, SUBLETTING: Tenant shall not assign this Lease or
sublet or license the Premises or any portion thereof (or advertise the Premises
for assignment or subletting) or permit the occupancy of all or any portion of
the Premises by anybody other than
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Tenant (all or any of the foregoing actions are sometimes collectively referred
to as an "assignment") without obtaining, or each occasion, the prior written
consent of the Landlord which consent shall not be unreasonably withheld or
delayed. Tenant's request for consent to any such assignment shall include (i) a
description of the proposed tenant and the nature of its business and (ii) a
copy of such proposed tenant's most recent profit and loss statement and balance
sheet prepared according to generally accepted accounting principles and
certified by an officer of such proposed tenant, (iii) a description of all of
the terms of the proposed assignment, and (iv) a copy of the proposed instrument
of assignment or sublease.
In the event of the proposed assignment or subletting or licensing of
the whole or any portion of the Premises, Landlord shall have the right in lieu
of consenting to such assignment or subletting or licensing, to terminate the
Lease upon ninety (90) days prior written notice to Tenant, provided that upon
receipt of such notice, Tenant may withdraw its request for consent, in which
event this Lease shall continue in full force and effect. In the event of such
termination Tenant shall be released of all further obligation, hereunder as of
the date of termination.
If Tenant does not make an assignment hereunder, and if the aggregate
rent and other charges payable to Tenant under such assignment less the out
of-pocket costs to Tenant of such transaction exceed the rent and other charges
paid hereunder, Tenant shall pay to Landlord, as additional rent on a monthly
basis one hundred percent (100%) of the amount of such excess.
Tenant shall pay to Landlord, as additional rent, Landlord's reasonable
legal fees and other expenses incurred in connection with any proposed
assignment, including fees for review of documents. Notwithstanding any such
assignment, the original Tenant named herein shall remain directly and primarily
obligated under this Lease.
If an assignment occurs, Landlord may, at any time and from time to
time require that such assignee, subtenant, licensee or occupant (collectively,
an "assignee") agree directly with Landlord to be liable, jointly and severally
with Tenant, for the performance of all. of Tenant's agreements under this lease
(including without limitation payment of rent). Landlord may collect rent and
other charges from the Assignee and apply the net amount collected to the rent
and other charges herein reserved, but no such assignment or collection shall be
deemed a waiver of the provisions of this Section or the acceptance of the
assignee as a Tenant, or a release of Tenant from direct and primary liability
for the further performance of covenants on the part of Tenant herein contained.
The consent by Landlord to an assignment shall not relieve Tenant from obtaining
the express consent of Landlord to any further assignment.
19. NOTICES: All notices and other communications authorized or
required hereunder shall be in writing, and shall be given by mailing the same
by registered or certified mail, postage prepaid, return receipt requested, and
any such notice or other communication shall be deemed given when mailed to the
Landlord or to the Tenant at the address set forth on Page one hereof, or to
such other place as may be designated by written notice given to either party.
alternatively, notices authorized or required hereunder may be given by delivery
in hand, effective on receipt, to the Landlord or Tenant at their addresses set
forth on page one hereof or to such other place as may be designated by written
notice. As to notice intended for Landlord, a copy shall be delivered as
aforesaid to Michael B. Cohen, Esquire at 1148 Centre Street, Suite 305, Newton,
Massachusetts 02159.
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20. FAILURE OF PERFORMANCE: If the Tenant shall default in the
performance or observance of any agreement or condition in this Lease contained
on its part to be performed or observed other than Tenant's obligation to pay
money, and shall not cure such default within fifteen (15) days after notice
from the Landlord specifying the default (or shall not within said period
commence to cure such default and thereafter prosecute the curing of such
default to completion with due diligence), the Landlord may, at its option,
without waiving any claim for damages for breach of agreement, at any time
thereafter cure such default for the account of the Tenant, and any amount paid
or any contractual liability incurred by the Landlord in so doing shall be
deemed paid or incurred for the account of the Tenant who shall reimburse the
Landlord on demand or save the Landlord harmless therefrom; provided that
Landlord may cure any such default as aforesaid prior to the expiration of said
waiting period but after notice to Tenant, if the curing of such default prior
to the expiration of said waiting period is reasonable necessary to protect the
real estate or Landlord's interest therein, or to prevent injury or damage to
persons or property. If the Tenant shall fail to reimburse the Landlord upon
demand for any amount paid or so incurred, such amounts shall bear interest at
the annual rate of fifteen (15%) percent or five percent over the prime rate
announced from time to time by the Bank of New England, whichever is greater;
and such amounts shall be recoverable as additional rent.
21. SUCCESSORS AND ASSIGNS: The words "Landlord" and "Tenant" and the
pronouns referring thereto, as used in this lease, shall mean, where the context
requires or admits, the persons named heroin as Landlord and as Tenant,
respectively, and their respective heirs, legal representatives, successors and
assigns, irrespective of whether singular or plural, masculine, feminine or
neuter. Except as hereinafter provided otherwise, the agreements and conditions
in this Lease contained on the part of the Landlord to be performed and observed
shall be binding upon Landlord and its heirs, legal representatives, successors
and assigns and shall be binding upon Tenant and its heirs, legal
representatives, successors and assigns and shall inure to the benefit of
Landlord and its heirs, legal representatives, successors and assigns. The word
"Landlord", as used heroin, means only the owner for the time being of
Landlord's interest in this Lease, that is, in the event of any transfer of
Landlord's interest in this Lease the transferor shall cease to be liable, and
shall be released from all liability for the performance or observance of any
agreements or conditions on the part of Landlord to be performed or observed
subsequent to the time of said transfer, it being understood and agreed that
from and after and observance of said agreements and conditions.
If all or any part of Landlord's interest in this Lease shall be held
by a trust, no trustee, shareholder or beneficiary of said trust shall be
personally liable for any of the covenants, or agreements, express or implied,
hereunder. Landlord's covenants and agreements shall be binding upon the
trustees of said trust as trustees as aforesaid and not individually and upon
the trust estate. Without limiting the generality of the foregoing, and whether
or not all or any part of Landlord's interest in this Lease shall be held by a
trust, Tenant specifically agrees to look solely to Landlord's interest in the
Premises for recovery of any judgment from Landlord; it being specifically
agreed that Landlord shall never otherwise be personally liable for any such
judgment.
22. SURRENDER: The Tenant shall at the expiration or other termination
of this Lease remove all Tenants goods and effects from the Premises (including
all signs). Tenant shall deliver the Premises and all keys, locks thereto and
other fixtures connected therewith, and all
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alterations and additions made to or upon the Premises, in good condition,
damage by fire or other casualty only excepted. In the event of the Tenant's
failure to remove any of Tenant's property from the Premises, Landlord is hereby
authorized without liability to Tenant for loss or damage thereto, and at the
sole risk of Tenant, to remove and store any of the property at Tenant's
expense, or to retain the same under Landlord's control. Any property not so
removed within thirty (30) days after the expiration or termination hereof may,
at Landlord's election, be deemed to be abandoned by Tenant.
23. TENANT'S OPTION TO EXTEND:
(a) Tenant shall have the right, at its election, to extend
the original term of this Lease for three additional periods, each of
five (5) years, commencing upon the expiration of the original term, or
the subsequent extended term if extended, provided that Tenant shall
give Landlord written notice of the exercise of its election at least
six (6) months prior to the beginning of such period of extension, and
provided further that Tenant shall not, at the time of giving notice or
at the commencement date of any extended term, be in default beyond any
applicable cure period in the performance or observance of an of the
terms and agreements in this Lease to be performed or observed on the
part of Tenant. Tenant shall not have an option for a second or third
extension unless it duly exercises its respective first and second
extension rights and is in possession of the premises throughout such
prior period.
(b) Except as expressly otherwise provided in this Lease, all
agreements and conditions in this Lease shall apply to such additional
periods to which the original term shall be extended as aforesaid
except there shall be no right to extend the Lease beyond the
expiration of the third extended term. If Tenant shall give notice of
the exercise of the election in the manner and within the time provided
aforesaid, the term shall be extended upon the giving of the notice
without the requirement of any action on the part of Landlord.
(c) The Tenant shall pay, as Base Rent, the amount calculated
pursuant to Schedule A hereof during any extended Lease period
hereunder, together with Tax Rent and additional rent.
24. ADDITIONAL COVENANTS: The parties hereto do further covenant and
agree with each other as follows:
(a) All rent shall be deemed due without billing or demand and
without right of set-off counterclaim or deduction for any reason
whatsoever. All payments shall be payable to Landlord at the address
specified on Page one hereof, or to such other entities or at such
other places as Landlord may from time to time designate.
(b) The prevailing party in any litigation shall be entitled
to reasonable attorneys fees incurred in enforcing any obligation under
this Lease or in curing any default under this Lease.
(c) Tenant agrees, upon written request from the Landlord,
from time to time, to execute written certification to Landlord, or any
mortgagee, or any prospective buyer,
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that this Lease is in full force and effect without amendment (or with
such changes as may then be effective, which shall be stated in the
certificate, that Tenant has no defense, offset as counterclaim against
its rent payment or obligations hereunder, the dates to which rent and
other charges have been paid, and that neither Landlord nor tenant is
in default under this Lease (or specifying any default of either party
in detail in the certificate). Landlord agrees upon written request
from Tenant, from time to time to furnish a similar certificate to
Tenant. Any prospective purchaser or mortgagee may rely on such
certifications.
(d) Tenant warrants to Landlord that it has not dealt with any
broker in connection with this Lease, Tenant shall indemnify and hold
Landlord harmless for any claim, loss or damage (including reasonable
legal fees) resulting from the falsity of the aforesaid representation.
(e) Tenant agrees immediately to discharge (either by payment
or by filing of the necessary bond, or otherwise) any mechanic's
materialmen's or other lien against the Premises and/or Landlord's
interest therein, which liens may arise out of any payment due for, or
purported to be due for, any labor, services, materials, supplies or
equipment, alleged to have been furnished to or for the Tenant in, upon
or about the Premises.
(f) Tenant agrees that it will not record this Lease, or any
part thereof. Any recording of this Lease shall ipso facto void the
Lease at Landlord's option. Notwithstanding the above, upon request of
one party, the other party shall sign a Statutory Form on Notice of
Lease which may be duly recorded.
(g) Each term and each provision of this Lease to be performed
by the Tenant shall be construed to be both a covenant and a condition.
Any reference in this Lease to a successor or assign of the Tenant is
not intended to constitute a consent to assign rent by Tenant except if
Landlord has given express written consent to such assignment sublease
or License as provided herein.
(h) The submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of,
or option for, the Premises, and this document shall be effective and
binding only upon the execution and delivery thereof by both the
Landlord and the Tenant. This Lease, when executed by both parties,
shall supersede any previous negotiations or understandings.
(i) This Lease contains the entire agreement between the
parties and shall not be modified in any manner except by an instrument
in writing executed by the Landlord and Tenant.
(j) This Lease is made pursuant to and shall be governed by
and construed in accordance with the laws of the Commonwealth of
Massachusetts.
(k) If any provision of this Lease or portion of such
provision or the application thereof to any person or circumstance is
for any reason held invalid or unenforceable, the remainder of the
Lease (including the remainder of such provisions) and the application
thereof to the persons or circumstances shall not be affected thereby.
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(l) If Landlord receives a bonafide offer by a third party. to
purchase the Premises, and Landlord desires to accept said offer,
Landlord shall submit a true copy of said offer to Tenant with an
appropriate notice to Tenant. If Tenant desires to purchase the
Premises upon the same terms as those set forth in said offer, Tenant
must notify Landlord of Tenant's election to so purchase the Premises
within ten (10) business days after Tenant's receipt of notice from
Landlord, in which event Landlord and Tenant shall proceed in accord
with the terms of said offer.
WITNESS the execution of, under seal, as of the day and year first
above written.
Mark N. Spencer
LANDLORD By: /s/ LISA S. COHEN
---------------------------------------
Lisa S. Cohen, u/p/a dated
January 30, 1990
/s/ LISA S. COHEN
---------------------------------------
Lisa S. Cohen, Individually
TENANT UNO RESTAURANTS, INC.
By: /s/ CRAIG S. MILLER
---------------------------------------
Craig S. Miller, President
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. February 1, 1990
Then personally appeared the above-named Lisa S. Cohen, and
acknowledged the foregoing instrument to be her free act and deed individually
and as attorney in fact for me,
/s/
---------------------------------------
Notary Public
My Commission Expires:
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COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. February 1, 1990
Then appeared the above-named Craig S. Miller, the duly elected and
authorized President of Uno Restaurants, Inc., the Tenant hereinabove, and
acknowledged the above instrument to be the free act and dead of such
corporation, before me,
/s/
---------------------------------------
Notary Public
My Commission Expires:
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SCHEDULE A
SCHEDULE OF BASE RENT
Base Rent shall be as follows:
YEARS ANNUALLY MONTHLY
----- -------- -------
1-5 $106,800.00 $ 8,900.00
6-10 $128,160.00 $10,680.00
11-15 $153,792.00 $12,816.00
During any extended term of this Lease, Base Rent shall be an amount
equal to one hundred and twenty percent (120%) of the Base Rent for the prior
(initial or prior extended) term of this Lease. Tenant shall, as well continue
to pay tax rent, additional rent and all other sums payable consistent with the
terms of this lease.
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