ASSIGNMENT AND ASSUMPTION OF LEASE
This Agreement, dated and made effective as of July 1, 2000, by and
between Metropolitan Collection Bureau, Inc., a Massachusetts corporation,
having its principal place of business and post office address at 1352 Beacon
St., Brookline, MA 02446 (hereinafter referred to as the "Assignor") and Andre
Danesh, an individual residing at 188 Mason Terrace, Brookline, MA 02446 with
offices located at 1330 Beacon St., Brookline, MA 02446 (hereinafter referred to
as the "Assignee").
For good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Assignor hereby assigns, transfers, and conveys to the Assignee
(without representation, or warranty by or recourse against the Assignor) all of
the Assignor's right, title and interest as lessee in, to and under the lease
(hereinafter referred to as the "Lease") between the Assignor and Pierce
Building Associates pertaining to Suites 266, 267 and 268 at 1330 Beacon St.,
Brookline Massachusetts (hereinafter referred to as the "Premises") a true copy
of which is annexed hereto as Exhibit A, subject to and with the benefit of the
subleases (hereinafter collectively referred to as the "Subleases") made by
Assignor and William W. Feuer pertaining to Suite 266 and with Affiliated
Healthcare Management pertaining to Suite 267, true copies of which are annexed
hereto as Exhibits B and C, respectively, together with all rents, issues,
profits, revenues and benefits of or from the Subleases (hereinafter referred to
as "Rents") to the extent such Rents accrue on or after the effective date of
this Assignment.
2. Assignee hereby, as of the effective date, (i) accepts the assignment
from Assignor of the Lease and Subleases, and assumes all of the obligations of
Assignor thereunder and (ii) agrees to indemnify and hold Assignor harmless from
and against any and all manner of suits, claims, actions, damages, charges,
liabilities, losses, costs or expenses without limitation, attorneys' fees and
disbursements, which Assignor may sustain or which may arise by reason of
Assignee's failure to observe, perform or comply with any of its obligations
hereunder and the obligations of lessee under the Lease and the obligations of
sublessor under the Subleases or otherwise relating to the leasehold of the
Premises accruing or arising from and after the effective date hereof.
3. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
4. This Agreement may be executed in multiple and separate counterparts,
which shall be deemed one and the same instrument.
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Witness our bands and seals as of the day and year first above written.
Assignor
Metropolitan Collection Bureau, Inc.
/s/ Thelma A. Lee, President
---------------------------------------------
By: Thelma A. Lee, President
Assignee:
/s/ Andre Danesh
---------------------------------------------
Andre Danesh
The undersigned hereby consents to the within assignment.
Pierce Building Associates
By: RDC Development Corporation
its General Partner
Signature /s/ Richard D. Cohen
--------------------------------------
By: Richard D. Cohen, President
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STANDARD FORM COMMERCIAL LEASE
THIS INSTRUMENT IS A LEASE, dated as of 6/7, 1999, in which the LESSOR and
LESSEE are the parties hereinafter named, and which relates to space in
the building (the "Building") located as 1330 Beacon Street, Brookline,
Massachusetts. The parties to this instrument hereby agree with each other
as follows:
1. BASIC LEASE The following set forth basic data and, where
PROVISIONS: appropriate, constitute definitions of the terms
hereinafter listed.
A. BASIC DATA
LESSOR: Pierce Building Associates, a
Massachusetts limited partnership
LESSOR'S Address: c/o Capital Properties
Management, Inc., 31 Saint James Avenue, Boston,
MA 02116
LESSEE: Metropolitan Collection Bureau, Inc. a
Massachusetts corporation
LESSEE'S Original Address: 1330 Beacon Street,
Suite 266/267/268, Brookline, MA 02446
LESSEE'S Notice Address (Section 20): The Premises
Basic Rent: Year 1 $50,799/year $21/psf
Year 2 $53,2l8/year $22/psf
Year 3 $55,637/year $23/psf
Year 4 $58,056/year $24/psf
Year 5 $60,475/year $25/psf
As the same may be adjusted and/or
abated.
Premises Rentable Area: Agreed to be 2,419 square
feet located on the second floor of the Building.
Permitted Uses: General business office use.
Escalation Factor: 3.27%, as computed in
accordance with the Escalation Factor Computation.
Initial Term: Five years commencing on the
Commencement Date and expiring at the close of the day
immediately preceding the fifth anniversary of the
Commencement Date, except that if the Commencement Date
shall be other than the first day of a calendar month,
the expiration of the Initial Term shall be at the
close of the day on the last day of the calendar month
on which such anniversary shall fall.
Security Deposit: None.
2,419 SQUARE FEET OF RENTABLE AREA ON THE SECOND FLOOR
OF THE BUILDING AND SUBSTANTIALLY KNOWN AS SUITE 266 /
267 / 268 on the plan attached hereto as "Exhibit A"
(the "Premises") together with the right to use in
common, with others entitled thereto, the hallways.
stairways, and elevators, necessary for access to said
Premises, and lavatories nearest thereto.
3. TERM The term of this lease shall be for five years
commencing on June 1, 1999 and ending an May 31, 2004.
4. BASIC The LESSEE shall pay to the LESSOR rent at the rate
RENT described in Section 1 of this Lease, payable in advance
on the first day of each month commencing without
deduction or set off in sixty monthly installments.
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5. SECURITY Upon the execution of this lease, the LESSEE shall pay
DEPOSIT to the LESSOR security deposit in the amount of $0.00.
The Security Deposit may be in cash or Letter of credit.
If cash, the Security Deposit shall be maintained in
said amount and held without interest. If a Letter of
Credit, such Letter of Credit shall be self renewing for
the entire Term of the Lease (as the same may be
extended). If, for any reason, the Letter of Credit
shall expire or be terminated for any reason, such
Letter of Credit shall be renewed or replaced thirty
days prior to such expiration or termination. Or, at any
time during that thirty day period, LESSOR may draw the
entire amount and such amount shall be returned to
LESSEE only after a replacement Letter of Credit has
been delivered to LESSOR. The Security Deposit shall be
held as security for LESSEE'S performance as herein
provided and refunded to LESSEE at the end of this lease
subject to LESSEE'S satisfactory compliance with the
conditions thereof
6. ADDITIONAL A. TAX. If, in any tax year, the real estate taxes on
RENT the land and buildings, of which the Premises are a
part, are in excess of the amount of the Base Taxes, as
finally abated (hereinafter called the "Base Year"),
LESSEE will pay to LESSOR, as additional rent hereunder,
when and as designated by notice in writing by LESSOR,
the amount of the excess multiplied by the Escalation
Factor. If the LESSOR obtains an abatement of any such
excess real estate tax, a proportionate share of such
abatement, less the reasonable fees and costs incurred
in obtaining the same, if any, shall be refunded to the
LESSEE.
B. OPERATING. If, in any calendar year, the Operating
Expenses for the Property of which the Premises are a
part, are in excess of the amount of the Base Operating
Expenses, LESSEE will pay to LESSOR, as additional rent
hereunder, when and as designated by notice in writing
by LESSOR, the amount of the excess multiplied by the
Escalation Factor. Operating expenses are defined for
the purposes of this agreement as: The aggregate costs
or expenses reasonably incurred by LESSOR with respect
to the operation, administration, cleaning, repair,
maintenance and management of the premises including,
without limitation, those items enumerated in "Exhibit
C" attached hereto. Any such accounting by LESSOR shall
be binding and conclusive upon LESSEE unless within
thirty (30) days after that giving by LESSOR of such
accounting, LESSEE shall notify LESSOR that LESSEE
disputes the correctness of such accounting, specifying
the particular respects in which the accounting is
claimed to be incorrect.
C. PAYMENT. At LESSOR'S option, payment of Additional
Rent shall be on a monthly basis based on LESSOR'S good
faith estimate of the Tax for the following year.
D. AUDIT. In the event LESSEE elects to audit LESSOR'S
statement of Operating Expenses or statement of Taxes in
accordance with this clause, such audit must be (I)
conducted by an independent nationally recognized
accounting firm that is not being compensated by LESSEE
on a contingency fee basis, and (ii) completed within
sixty (60) days following LESSEE'S notice disputing the
correctness of the statement of Operating Expenses.
Furthermore, all of the information obtained through the
LESSEE'S audit with respect to financial matters
(including, without limitation, costs, expenses, income)
and any other matters pertaining to the LESSOR and/or
the Property as well as any compromise, settlement, or
adjustment reached between LESSOR and LESSEE
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relative to the results of the audit shall be held in
strict confidence by LESSEE and its officers, agents,
and employees; and LESSEE shall cause its auditor and
any of its officers, agents, and employees to be
similarly bound. As a condition precedent to LESSEE'S
exercise of its right to audit, LESSEE must deliver to
LESSOR a signed confidentiality agreement from the
auditor (in form acceptable to LESSOR) reached between
LESSOR and LESSEE shall be held in strict confidence and
shall not be revealed in any manner to any person except
upon the prior written consent of LESSOR. LESSEE
understands and agrees that this provision is of
material importance to the LESSOR and that any violation
of the terms of this provision shall result in immediate
and irreparable harm to the LESSOR. LESSOR shall have
all rights allowed by law or equity if LESSEE, its
officers, agents, or employees and/or the auditor
violate the terms of this provision, including, without
limitation, the right to terminate LESSEE'S right to
audit.
7. UTILITIES The LESSEE shall pay, as they become due, all bills for
electricity and other utilities that are furnished to
the Premises and presently separately metered. The
LESSOR agrees to provide all other utility service and
to furnish reasonably hot and cold water and reasonable
heat and air conditioning to the Premises, the hallways,
stairways, elevators, and lavatories during normal
building business hours on regular business days of the
heating and air conditioning seasons of each year, to
furnish elevator service and to light passageways and
stairways during business hours, and to furnish such
cleaning services as is customary in similar buildings
in Boston, Massachusetts, all subject to interruption
due to any accident, to the making of repairs,
alterations, or improvements, to labor difficulties, to
inability to obtain fuel, electricity, service, or
supplies from the sources from which they are usually
obtained for said building, or to any cause beyond the
LESSOR'S control.
LESSOR shall have no obligation to provide utilities or
equipment other than the utilities and equipment within
the premises as of the commencement date of this lease.
In the event LESSEE requires additional utilities or
equipment, the installation and maintenance thereof
shall be the LESSEE'S sole obligation, provided that
such installation shall be subject to the written
consent of the LESSOR.
8. USE OF The LESSEE agrees to use the Premises in a manner
LEASED consistent with the nature of the building and
PREMISES consistent with the other LESSEES in the building. The
LESSEE shall use the Premises only for the purpose of
listed in Section 1 of this Lease,
9. COMPLIANCE The LESSEE acknowledges that no trade or occupation
WITH LAWS shall be conducted in the Premises or use made thereof
which will be unlawful, improper, noisy or offensive, or
contrary to any Law or any municipal by-law or ordinance
in force in the city or town in which the Premises are
situated. LESSEE agrees to comply with all such laws.
LESSOR makes no representation that uses contemplated by
the LESSEE are permitted by law.
10. FIRE The LESSEE shall not permit any use of the Premises
INSURANCE which will make voidable any insurance on the property
of which the Premises are a part, or on the contents of
said property or which shall be contrary to any law or
regulation from time to time established by the New
England Fire Insurance Rating Association, or any
similar body, succeeding to its powers. Nor shall
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LESSEE cause or permit the storage, use, generation,
release or disposition of any hazardous materials in, on
or about the property by LESSEE, its agents, employees
or contractors. LESSEE will not permit the Premises to
be used or operated in a manner that may cause the
Premises or the Property to be contaminated by any
hazardous materials in violation of any hazardous
materials laws. LESSEE will immediately advise LESSOR in
writing of (1) any and all enforcement, cleanup,
remedial, removal, or other governmental or regulatory
actions instituted, completed, or threatened pursuant to
any hazardous materials laws relating to any hazardous
materials affecting the Premises; and (2) all claims
made or threatened by any third party against LESSEE,
LESSOR, the Premises or the Property relating to damage,
contribution, cost recovery, compensation, loss or
injury resulting from any hazardous materials on or
about the Premises. Without LESSOR'S prior written
consent, LESSEE will not take any remedial action or
enter into any agreement or settlements in response to
the presence of any hazardous materials in, on, or about
the Premises,
LESSEE will be solely responsible for and will defend,
indemnify and hold LESSOR, its agents, and employees
harmless from and against all claims, costs, expenses,
damages, and liabilities, including employees harmless
from and against all claims, costs expenses, damages and
liabilities, including attorneys' fees and costs,
arising out of or in connection with LESSEE'S breach of
its obligations in this Section 10. LESSEE will be
solely responsible for and will defend, indemnify, and
hold LESSOR, its agents, and employees harmless from and
against any and all claims, costs, and liabilities,
including attorneys' fees and costs, arising out of or
in connection with the removal, cleanup and restoration
work and materials necessary to return the Premises and
any other property of whatever nature located on the
Property to their condition existing prior to the
appearance of LESSEE'S hazardous materials on the
Premises. LESSEE'S obligations under this Section 10
will survive the expiration or other termination of this
Lease.
The LESSEE shall not use the Premises in any way which
will cause an extra insurance premium. However, in the
event that LESSEE does so, the LESSEE shall, on demand,
reimburse the LESSOR, and all other lessees, all extra
insurance premiums caused by the LESSEE'S use of the
Premises.
11. MAINTENANCE The LESSEE agrees to maintain the Premises, in good
OBLIGATIONS condition, damage by fire and other casualty only
excepted, and whenever necessary, to replace plate glass
and other glass therein.
A. LESSEE'S OBLIGATIONS. The Premises are now in good
order and the glass whole. The LESSEE shall not permit
the Premises to be overloaded, damaged, stripped, or
defaced, nor suffer any waste. LESSEE shall obtain
written consent of LESSOR before erecting any sign on
the Premises. The LESSEE shall keep and maintain the
Premises in good order and repair at its own expense.
The LESSOR shall at LESSEE'S expense and upon LESSEE'S
request, furnish and install all replacement lamps,
lighting tubes, bulbs and ballast's which may be
required in the Premises during the term hereof.
B. LESSOR'S OBLIGATIONS. The LESSOR agrees to maintain
the structure of the building of which the Premises are
a part in the same condition as it is at the
commencement of the Term or as it may be put in
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during the Term of this Lease, reasonable wear and tear,
damage by fire and other casualty only excepted, unless
such maintenance is required because of the LESSEE or
those for whose conduct the LESSEE is legally
responsible.
LESSOR shall never be liable for any failure to make
repairs unless LESSEE has given notice to LESSOR of the
need to make such repairs and LESSOR has failed to
commence to make such repairs within a reasonable time
after receipt of such notice, or fails to proceed with
reasonable diligence to complete such repairs.
12. ADDITIONS & The LESSEE shall not make structural alterations or
ALTERATIONS additions to the Premises or the building's systems, but
may make non-structural alterations provided the LESSOR
consents thereto in writing, which consent shall not be
unreasonably withheld or delayed. All such allowed
alterations 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 Premises for labor and
material furnished to LESSEE or claimed to have been
furnished to LESSEE in connection with work of any
character performed or claimed to have been performed at
the direction of LESSEE and shall cause any such lien to
be released of record forthwith without cost to LESSOR.
If such lien is not discharged within ten (10) days
after such filing of such lien, LESSEE shall furnish
LESSOR, within such ten (10) day period, security
satisfactory to LESSOR in the amount of 150% of the
claim plus estimated costs to discharge the lien. Any
alterations or improvements made by the LESSEE shall
become the property of the LESSOR at the termination of
occupancy as provided herein.
13. ASSIGNMENT The LESSEE shall not assign or sublet the whole or any
& SUBLEASING part of the Premises without LESSOR'S prior written
consent, such consent shall not be unreasonably
withheld. 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. If SUBLESSEE or ASSIGNEE is paying rent
at an amount greater than in this agreement, the amount
over shall be due to LESSOR. No assignment or sublease
shall release LESSEE from, and LESSEE shall remain fully
liable for, performance of LESSEE'S obligations under
the lease. LESSEE shall not sublease or assign to a
current or prospective tenant of the Building.
Prospective tenants are those tenants who have been
introduced to the Property within thirty (30) days of
the sublease or assignment proposal or any tenant in
negotiation with LESSOR. LESSEE shall not sublease below
Fair Market Value, without LESSOR'S prior written
consent. LESSEE shall not sublease or assign to any
tenant whereby the sublessee or assignees use violates
the exclusive use or is the same as the predominant use
of any tenant at the Property. LESSOR may also elect to
recapture the proposed sublease or assign premises.
14. SUBORDINATION This Lease shall be subject and subordinate to any and
all mortgages, deeds of trust and other instruments in
the nature of a mortgage, now or at any time hereafter,
a lien or liens on the property of which the Premises
are a part and the LESSEE shall, when requested,
promptly execute and deliver such written instruments as
shall be necessary to show the subordination of this
lease to said mortgages, deeds of trust or other such
instruments in the nature of a mortgage. In the event
that LESSEE fails or refuses to execute same, LESSOR may
do so as LESSEE'S Attorney-in-Fact.
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15. LESSOR'S The LESSOR or agents of the LESSOR may, at reasonable
ACCESS times and with reasonable notice, enter to inspect the
Premises; exhibit the Premises to prospective
purchasers, lenders or tenants; determine LESSEE'S
compliance with the Lease; remove placards and signs not
approved and affixed as herein provided, and make
repairs and alterations to the Premises and Property as
LESSOR should elect to do.
16. INDEMNIFICATION LESSEE shall save LESSOR harmless, and shall exonerate
AND LIABILITY and indemnify LESSOR, from and against any and all
claims, liabilities or penalties asserted by or on
behalf of any person, firm, corporation or public
authority:
(i) on account of or based upon any injury to person,
or loss of or damage to property sustained or
occurring or emanating from the Premises on
account of or based upon the act, omission, fault,
negligence or misconduct of any person except
LESSOR;
(ii) on account of or based upon any injury to person,
or loss of or damage to property, sustained on or
occurring elsewhere (other than on the Premises)
in or about the Property (and, in particular,
without limitation, the elevators, stairways,
public corridors, sidewalks, parking areas,
concourses, arcades, approaches, areaways, roof,
or other appurtenances and facilities used in
connection with the Property or the Premises)
arising out of the use or occupancy of the
Property or Premises by the LESSEE or by any
person claiming by, through or under LESSEE,
except where such injury, loss or damage was
caused by the negligence, fault or misconduct of
LESSOR;
and in addition to and not in limitation of either
of the foregoing subdivisions (i) and (ii);
(iii) on account of or based upon (including moneys due
on account of) any work or thing whatsoever done
(other than by LESSOR or its contractors, or
agents or employees or either) on the Leased
Premises; and, in respect of any of the foregoing,
from and against all costs, expenses (including
reasonable attorneys' fees), and liabilities
incurred in or in connection with any such claim,
or any action or proceeding brought thereon; and
in case any action or proceeding be brought
against LESSOR by reason of any such claim. LESSEE
upon notice from LESSOR shall at LESSEE'S expense
resist or defend such action or proceeding and
employ counsel therefore reasonably satisfactory
to LESSOR, it being agreed that such counsel as
may act for insurance underwriters of LESSEE
engaged in such defense shall be deemed
satisfactory.
17. LESSEE'S The LESSEE shall maintain with respect to the Premises
LIABILITY and the Property of which the Premises are a part
INSURANCE commercial general liability insurance in the amount of
$1,000,000 with property damage insurance in limits of
$100,000 and Workers Compensation insurance insuring
against and satisfying LESSEE'S obligations and
liabilities under the Workers Compensation Laws of
Massachusetts, in responsible companies qualified to do
business in Massachusetts and in good standing therein
insuring the LESSOR as well as LESSEE against injury to
persons or damage to property as provided.
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LESSEE agrees to increase limits as LESSOR'S mortgagee
reasonably requires. The LESSEE shall deposit with the
LESSOR certificates for such insurance at or prior to
the commencement of the Term, and thereafter within
thirty (30) days prior to the expiration of any such
policies. All such insurance certificates shall provide
that such policies shall not be canceled without at
least ten (10) days prior written notice to each assured
named therein.
18. FIRE, CASUALTY, Should a substantial portion of the Premises, or of the
EMINENT DOMAIN property of which they are a part, be substantially
damaged by fire or other casualty, or be taken by
eminent domain, the LESSOR may elect to terminate this
lease. When such fire, casualty, or taking renders the
Premises substantially unsuitable for their intended
use, a just and proportionate abatement of rent shall be
made, and the LESSEE may elect to terminate this lease
if:
(a) The LESSOR fails to give written notice within
thirty (30) days of the event of its intention to
restore Premises, or
(b) The LESSOR fails to restore the Premises to a
condition substantially suitable for their
intended use within ninety (90) days of said fire,
casualty or taking, as such date may be extended
ninety (90) days if LESSOR is diligently working
to restore the Premises and extended an additional
ninety (90) days for force majeure. LESSOR
reserves, and the LESSEE grants the LESSOR, all
rights which the LESSEE may have for damages or
injury to the Premises for any taking by eminent
domain, except for damage to the LESSEE'S
fixtures, property, or equipment.
19. DEFAULT A) In the event that:
AND
BANKRUPTCY (i) The LESSEE shall default in the payment of any
installment of rent or other sum herein specified
and such default shall continue for five (5) days
after written notice thereof; or
(ii) The LESSEE shall default in the observance or
performance of any other of the LESSEE'S
covenants, agreements, or obligations hereunder
and such default shall not be corrected within
fifteen (15) days after written notice thereof; or
(iii) The LESSEE or any guarantor of LESSEE'S
obligations under the lease, files or is filed
against in any bankruptcy, insolvency or
reorganization petition; or
(iv) The LESSEE shall be declared bankrupt or insolvent
according to law, or, if any assignment shall be
made of LESSEE'S property for the benefit of
creditors, or
(v) Any attachment is made of the leasehold interest
outlined in this lease; or
(vi) The LESSEE fails to take possession of Premises
within three (3) days of the Commencement Date or
shall abandon the Premises; or
(vii) LESSEE violates the terms of Section 13
"Assignment & Subleasing"; or
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(viii) A receiver is appointed to conduct LESSEE'S
business (whether or not LESSOR has re-entered the
premises) then the LESSOR shall have the right
thereafter, while such default continues, to
re-enter and take complete possession of the
Premises, to terminate this lease, and remove the
LESSEE'S effects 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 of rent and additional
rent and other payments which the LESSOR may incur
by reason of such termination during the residue
of the term. If the LESSEE shall default, after
reasonable notice thereof; in the observance or
performance of any conditions or covenants on
LESSEE'S part to be observed or performed under or
by virtue of any of the provisions in any article
of this lease, 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 in instituting,
prosecuting or defending any action or proceeding,
such sums paid or obligations insured, with
interest at the rate of 18 per cent per annum and
costs, shall be paid to the LESSOR by the LESSEE
as additional rent. Any sums not paid when due
shall bear interest at 18 per cent per annum until
paid. LESSEE shall pay an administrative fee if a
check does not clear.
B) LESSOR'S REMEDIES. If any one or more events of
default set forth above occurs, LESSOR may, at its
election:
(i) Give LESSEE written notice of LESSOR'S intention
to terminate this Lease on the earliest date
permitted by law or on any later date specified in
such notice, in which case LESSEE'S right to
possession of the Premises will cease and this
Lease will be terminated, except as to LESSEE'S
liability, as if the expiration of the term fixed
in such notice were the end of the Term;
(ii) Without further demand or notice, and without
terminating this Lease, reenter and take
possession of the Premises or any part of the
Premises, repossess the same, expel LESSEE and
those claiming through or under LESSEE and remove
the effects of both or either, using such force
for such purposes as may be necessary, without
being liable for prosecution, without being deemed
guilty of any matter of trespass, and without
prejudice to any remedies for arrears of Monthly
Rent or other amounts payable under this Lease or
as a result of any preceding breach of covenants
or conditions; or
(iii) Without further demand or notice to cure any event
of default and charge LESSEE for the cost of
effecting such cure, including without limitation
reasonable attorneys' fees and interest on the
amount of 18 percent per annum, provided that
LESSOR will have no obligation to cure any such
event of default of LESSEE.
If LESSOR elects to reenter as provided in subsection
(ii) or if LESSOR takes possession pursuant to legal
proceedings or pursuant to any notice provided by law,
LESSOR may, from time to time, without terminating this
Lease, relet the
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Premises or any part of the Premises in LESSOR'S or
LESSEE'S name, but for the account of LESSEE, for such
term or terms (which may be greater or less than the
period which would otherwise have constituted the
balance of the Term) and on such conditions and upon
such other terms (which may include concessions of free
rent and alteration and repair of the Premises) as
LESSOR, an its reasonable discretion, may determine, and
LESSOR may collect and receive the rents from such
reletting. LESSOR will in no way be responsible or
liable for any failure to relet the Premises, or any
part of the Premises, or for any failure to collect any
rent due upon such reletting. No such reentry or taking
possession of the Premises by LESSOR will be construed
as an election on LESSOR'S part to terminate this Lease
unless a written notice of such intention is given to
LESSEE. No written notice from LESSOR under this Section
or under a forcible or unlawful entry and detainer
statute or similar law will constitute an election by
LESSOR to terminate this Lease unless such notice
specifically so states. LESSOR reserves the right
following any such reentry or reletting to exercise its
right to terminate this Lease by giving LESSEE such
written notice, in which event this Lease will terminate
as specified in such notice.
20. NOTICE Any Notice from the LESSOR to the LESSEE relating to the
Premises or to the occupancy thereof, shall be in
writing and be deemed duly served, if mailed to the
Notice Address in Section 1 of this Lease, registered to
certified mail, return receipt requested, postage
prepaid or by overnight carrier, addressed to the
LESSEE. Any Notice from the LESSEE to the LESSOR
relating to the Premises or to the occupancy thereof,
shall be deemed duly served, if mailed to the LESSOR by
registered or certified mail, return receipt requested,
postage prepaid or by overnight carrier, addressed to
the LESSOR at the address in Section 1 of this Lease or
such other address as the LESSOR may from time to time
advise in writing. All rent notices shall be paid and
sent to the LESSOR at its notice address or such other
address as may be designated by LESSOR.
21. SURRENDER The LESSEE shall at the expiration or other termination
of this Lease remove all LESSEE'S goods and effects from
the Premises, (including, without hereby limiting the
generality of the foregoing, all signs and lettering
affixed or painted by the LESSEE, either inside or
outside the Premises). LESSEE shall deliver to the
LESSOR the Premises and all keys, locks thereto, and
other fixtures connected therewith and all alterations
and additions made to or upon the Premises, in good
condition, damage by fire or other casualty only
excepted. In the event of the LESSEE'S failure to remove
any of LESSEE'S property from the Premises, LESSOR is
hereby authorized, without liability to LESSEE for loss
or damage thereto, and at the sole risk of LESSEE, to
remove and store any of the property at LESSEE'S
expense, or to retain same under LESSOR'S control or to
sell at public or private sale, without notice any or
all of the property not so removed and to apply the net
proceeds of such sale to the payment of any sum due
hereunder, or to destroy such property. The LESSEE shall
restore all damage to the Premises which may have
occurred during the use of Premises or while vacating
the Premises. Any items which the LESSEE installs, which
replace items on the Premises when LESSEE took occupancy
are deemed to be LESSOR'S property.
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22. BROKERAGE LESSEE warrants and represents that LESSEE has dealt
with no broker other than the broker listed in Section 1
of this lease in connection with the consummation of
this Lease and, in the event of any brokerage claims
against LESSOR predicated upon prior dealings with
LESSEE, LESSEE agrees to defend the same and indemnify
LESSOR against any such claim.
23. LESSOR'S The LESSOR is not personally liable under this Lease.
LIABILITY (a) LESSEE specifically agrees to look solely to the
LESSOR'S then equity in the property of which the
Premises are a part for recovery of any judgment from
LESSOR it being specifically agreed that LESSOR
(original or successor) shall never be personally liable
for any such judgment or for the payment of any monetary
obligation to LESSEE. The provisions contained in the
foregoing sentence are not intended to, and shall not,
limit any right the LESSEE might otherwise have to
obtain injunctive relief against LESSOR or to take any
action not involving the liability of LESSOR to respond
in monetary damages from LESSOR'S assets other than from
such property.
24. WAIVER Failure on the part of the LESSOR or LESSEE to complain
of any action or non-action on the part of the other, no
matter how long the same may continue, shall never be a
waiver by LESSOR or LESSEE, respectively, of its rights
hereunder. Further, no waiver at any time of the
provisions hereof, by LESSOR or LESSEE shall be
construed as a waiver of any of the other provisions
hereof, and a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at
any subsequent time of the same provisions. The consent
or approval of LESSOR or LESSEE to, or of any action by
the other requiring such consent or approval, shall not
be construed to waive or render unnecessary LESSOR'S or
LESSEE'S consent or approval to or of any subsequent
similar act by the other.
25. STATUS Recognizing that both parties may find it necessary to
REPORT establish to third parties, from time to time, the then
current status of performance hereunder, either party
will, within ten (10) days after receipt of a request
therefore, furnish a statement of the status of any
matter pertaining to this Lease, including without
limitation, acknowledgments that (or the extent to
which) each party is in compliance with its obligations
under the terms of the Lease.
26. CONDITION Except as otherwise provided in this Section, the
AND AREA Premises are being delivered strictly in their condition
"as is" and LESSEE acknowledges that it has inspected
the same and found them satisfactory.
27. LESSOR'S LESSOR warrants and represents that it is the owner of
WARRANTY record of the Premises and that it has authority to
grant the leasehold interest conveyed hereby.
28. SEVERABILITY If any term or provision of this Lease, or the
application thereof to any person or circumstance shall,
to the extent the same shall be invalid or
unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or
circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby,
and each term and provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
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29. RECORDING LESSEE agrees not to record this Lease, but, if the Term
of this Lease (including any extended term) is seven (7)
years or longer, each party hereto agrees, on the
request of the other, to execute a so-called Notice of
Lease in recordable form and complying with applicable
law and reasonably satisfactory to LESSOR'S attorneys.
Such document shall expressly state that it is executed
pursuant to the provisions contained in this Lease, and
is not intended to vary the terms and conditions of this
Lease.
30. HOLDING Any Holding Over by LESSEE after the expiration of the
OVER Term of this Lease shall be treated as a tenancy at
sufferance at a rate equal to two times the Basic Rent
then in effect plus Additional Rent and other charges
herein provided. LESSEE shall also pay to LESSOR all
damages, direct and/or indirect, sustained by reason of
any such holding over. Otherwise, such Holding Over
shall be on the terms and conditions set forth in this
Lease as far as applicable.
31. GOVERNING This Lease shall be governed exclusively by the
LAW provisions hereof and by the laws of the Commonwealth of
Massachusetts, as the same may from time to time exist.
No amendment, alteration, modification of, or addition
to the Lease will be valid or binding unless expressed
in writing and signed by LESSOR and LESSEE. LESSEE
agrees to make any modifications of the terms and
provisions of this Lease required and requested by any
leading institution providing financing for the
Building, or Project, as the case may be, provided that
no such modifications will materially adversely affect
LESSEE'S rights and obligations under this Lease.
32. RELOCATION If LESSOR so requests, LESSEE shall vacate the Premises
and relinquish its right with respect to the same
provided that LESSOR shall provide to LESSEE substitute
space in the Building, such space to be reasonably
comparable in size, layout, finish and utility to the
Premises, and further provided that LESSOR shall, at its
sole cost and expense, move LESSEE and its Removable
Property from the Premises to such new space in such
manner as will minimize, to the greatest extent
practicable undue interference with the business or
operations of LESSEE. Any such substitute space shall,
from and after such relocation, be treated as the
Premises demised under this Lease, and shall be occupied
by LESSEE under the same terms, provisions and
conditions as set forth in this Lease. LESSOR shall also
pay all costs incurred by LESSEE on account of such
relocation including, without limitation, telephone
installation expense and computer wiring and
installation expense. LESSOR will, prior to the
effective date of such relocation, at its sole expense,
perform all leasehold improvements needed at the
substitute space to cause the same to be comparable to
the Premises, exclusive of reasonable wear and tear.
33. ENTIRE This Lease and the Exhibits made a part hereof contain
AGREEMENT the entire and only agreement between the parties and
any and all statements and representations, written and
oral, including previous correspondence and agreements
between the parties hereto, are merged herein. LESSEE
acknowledges that all representations and statements
upon which it relied in executing this Lease are
contained herein and that the LESSEE in no way relied
upon any other statements or representations, written or
oral. Any executory agreement hereafter made shall be
ineffective to change, modify, discharge or effect an
abandonment of this Lease in whole or in part unless
such executory agreement
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is in writing and signed by the party against whom
enforcement of the change, modification, discharge or
abandonment is sought.
34. RULES & LESSEE, its employees, agents, licensees, and visitors
REGULATIONS will at all times, observe faithfully, and comply
strictly with, the Rules and Regulations set forth in
Exhibit E. LESSOR may from time to time reasonably
amend, delete, or modify existing Rules and Regulations,
or adopt reasonable new Rules and Regulations for the
use, safety, cleanliness, and care of the Premises and
the Property, and the comfort, quiet, and convenience of
occupants of the Property. Modifications or additions to
the Rules and Regulations will be effective upon thirty
(30) days' prior written notice to LESSEE from LESSOR.
In the event of any breach of any Rules or Regulations
or any amendments or additions to such Rules and
Regulations, LESSOR will have all remedies that this
Lease provides for default by LESSOR, and will in
addition have any remedies available at law or in
equity, including the right to enjoin any breach of such
Rules and Regulations. LESSOR will not be liable to
LESSEE for violation of such Rules and Regulations by
any other tenant, its employees, agents, visitors, or
licensees or any other person. In the event of any
conflict between the provisions of this Lease and the
Rules and Regulations, the provisions of this Lease will
govern.
35. PARKING Exhibit B attached hereto and made a part hereof shows
the area designated as Tenant Parking. So long as LESSEE
is current in the payment and performance of its lease
obligations, LESSOR hereby agrees that LESSEE may, at
its own wish, utilize said area designated as Tenant
Parking for the parking of no more than two (2)
automobiles for the term of this lease. LESSER will be
notified by LESSOR as to the exact location of each
"Parking Space" within the Tenant Parking area which
LESSEE may use. LESSEE may, with thirty days notice to
LESSOR, relinquish its right to park in (and the
expiration of said time period shall cease to park in
and have no further right to park in) said Parking
Space.
Exhibit B attached hereto and made a part hereof details
the rules and regulations "Rules" pertaining to the
Tenant Parking area.
Rent to be paid for the term of this lease by LESSEE is
one hundred ($100.00) dollars per month, for the first
parking space and no charge for the second parking space
payable in the same manner as Base Rent and shall be
deemed additional rent.
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals this
7th day of June, 1999.
LESSEE: Metropolitan Collection LESSOR: Pierce Building Associates
Bureau, Inc. BY: RDC Development Corporation -
its General Partner
BY: Richard D. Cohen - its President
BY: /s/ Charles J. Lee, President
--------------------------------
Charles J. Lee, President
/s/ [ILLEGIBLE]
------------------------------------ -----------------------------------
Hereunto Duly Authorized
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