EXHIBIT 10.14
LEASE DATE MAY 2, 1997
XXXX XXXXX TRUSTEE 0000 XXXXXXXX XXXXXX
REALTY TRUST TO ENTERPRISE BANK AND TRUST COMPANY
ARTICLE I
Reference Data and Exhibits
1.1 Data.
Date: May 2, 1997
Location of Building: 0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Landlord: 0000 Xxxxxxxx Xxxxxx Realty Trust
Suite No.210
Original Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Tenant: Enterprise Bank and Trust Company
Original Address: 000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Original Rent Payable: First Lakeview Avenue Limited Partnership
The land with the building thereon, located and known as 0000 Xxxxxxxx
Xxxxxx, Xxxxxx, XX and more particularly described in a deed from FMV Realty
Corporation recorded with the Middlesex North district Registry of deeds, Book
4328, Page 274.
Ground Area:
That portion of the Real Estate occupied by the Building and the drive up area
and canopy area appurtenant thereto, and as shown on Exhibit A.
Leased Premises:
4922 square feet of interior space in the Building (as shown as Exhibit B) and
7955 square feet of canopy area and drive-up area (as shown on Exhibit "A") at
0000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
Building:
The office building, of which the Premises are a part at 0000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx and as shown on Exhibit A, and the improvements, repairs,
alterations and additions thereto.
Commencement Date: January 1, 1998
Initial Term: 30 months
Extended Term: Seven (7) options to extend for periods of Thirty (30 ) Months
each as provided in Article 4.1(b)
Annual Fixed Rent: (a) Annual Fixed Rent. For the first thirty (30) months of
the Initial Term as that term is defined for each portion of the Leased Premises
as set forth in Article 2.3.1 Annual Fixed Rent as follows: (I) Interior Space
$59,064.00 annually, $4,922.00 monthly, payable in advance beginning on the
Commencement Date (being pro-rated for any portion of a month) and being payable
on the first day of each month thereafter during the term of this Lease, as
extended. (ii) Drive Up/and Parking Area $13,364.00 annually, $1,113.67 monthly,
payable in advance beginning on the Commencement Date (being prorated for any
portion of a month) and being payable on the first day of each month thereafter
during the term of this Lease, as extended.
Permitted Uses: To use the Leased Premises for banking purposes including all
uses permitted for a federally insured bank or lending institution and other
financial service business uses, including operation of automatic teller
machines, as may be allowed banking institutions by law and for general
professional office space.
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Public Liability Insurance Limits:
Bodily Injury $500,000/$1,000,000
Termination Date:
As defined in Article 2.3.1
Mortgage:
a Mortgage, deed of trust, trust indenture or other security instruments of
record creating an interest in or affecting title to the Real Property, or any
part thereof, including a leasehold mortgage, and any and all renewals,
modifications, consolidations, or extensions of any such instrument.
1.2 Effect of Reference to Data. Each reference in this Lease to any of the
titles contained in Article 1.1 shall be construed to incorporate the data
stated under Article 1.1.
1.3 Exhibits The exhibits listed below in this Article are incorporated in this
Lease by reference and are to be construed as a part of this Lease.
Exhibit A
Site Plan showing the Real Property,the Existing Building, and Ground Area, that
portion of the Real Estate occupied by the Building and the drive up area and
canopy area appurtenant thereto, and 4922 square feet of interior space in the
Building(as shown as Exhibit B) and 7955 square feet of canopy area of drive-up
area (as shown on Exhibit "A") at 0000 Xxxxxxxx Xxxxxx, Xxxxxx, XX.
Exhibit B
Plan showing the Leased Premises.
Exhibit C: Schedule of Personalty
Exhibit D: List of encumbrances
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LEASE
BASIC LEASE PROVISIONS
1.01 Date and Parties. This lease (Lease) is made the 2nd day of May 1997,
between, Xxxx Xxxxx as he is the Trustee of 0000 Xxxxxxxx Xxxxxx Trust
(Landlord) and Enterprise Bank and Trust Company (Tenant). Landlord is a real
estate trust with a principal office at 000 Xxxxxxxxx Xxxxxx ,Xxxxxx,
Xxxxxxxxxxxxx 00000. Tenant is a Massachusetts corporation with a principal
office at 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
ARTICLE II
Leased Premises and Term
2.1 Leased Premises. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, for the term hereinafter set forth and subject to and with the
benefit of the terms, covenants, conditions and provisions of this Lease, the
Leased Premises, free standing building located at 0000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx and the Ground Area as shown on Exhibit A. The Leased Premises
consist of 4,922 square feet of interior space in the Building, and 7,955 square
feet of drive up and canopy area. The Ground Area consists of the land occupied
by the Building.
2.2.1. Appurtenant Rights. The Leased Premises and Ground Area shall also
include all appurtenant rights now or at any time hereafter during the term of
this Lease necessary for the continued use and enjoyment thereof by Tenant and
shall specifically include as appurtenant thereto the right for Tenant and all
his agents, employees, guests and invitees to use (in common with others
entitled to the use thereof) (a) all entrances, lobbies, walkways, corridors,
which now or hereafter afford access to the Leased Premises and the Building of
which it is part and (b) the common pipes, ducts, conduits, wires and
appurtenant equipment serving the Leased Premises and the Existing Building. The
term Leased Premises wherever used herein, shall include any and all structures,
parking facilities and common facilities built therein, or as they may, from
time to time, be reduced by eminent domain takings or dedications to public
authorities.Tenant shall also have the right as appurtenant to the Leased
Premises to the exclusive access as can be reasonably enforced by the Landlord
for motor vehicles to drive around the southerly side of the Building for access
to a driveup facility on the easterly side of the Building and exit on Lakeview
Avenue as shown in Exhibit A. It will be fully understood by all other tenants
that such area shall be for the exclusive use of the Tenant, except that loading
docks or loading operations of other tenants may take place in this area on days
Tenant is closed for business and on days Tenant is open for business, if prior
to 8:00 A.M. or after Tenant's closing for retail business, all such load
operations to be pursuant to such regulations established by Landlord which will
attempt to minimize interference with the normal operation of a banking
facility. Landlord shall inform all subsequent tenants either by lease or
separate letter of Tenant's exclusive use of the drive up access and facility,
subject to loading dock and loading operation rights. Tenant shall also have the
right as appurtenant to the Ground Area to the use of access for motor vehicles
for access to the drive up facility attached to the Existing Building. Tenant
shall also have the nonexclusive right, as appurtenant to the Leased Premises to
use the parking spaces as described in Article 10.10 hereinbelow. Tenant agrees
that it shall cause its employees to use eight of the tandem parking spaces as
shown on Exhibit A and any other parking spaces as may be assigned by Landlord.
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2.2.2. Lobby and ATM Accessibility. Landlord agrees to allow the ATM lobby area
to be accessable through a pass card entry system, designed, maintained and paid
for by Tenant, on a twenty four hour basis. In addition, Xxxxxxxx agrees to keep
the lobby area of the Building open during the tenant's normal business hours.
Should Tenant change its business hours, it shall so notify Landlord so that
Landlord can make the appropriate arrangements to keep the lobby area open
during the Tenant's normal business hours.
2.3 Term. TO HAVE AND TO HOLD for an Initial Term the Leased Premises as set
forth below (hereinafter the "Initial Term") subject to the agreements, terms
and conditions herein contained. The Initial Term is to commence on January 1,
1998 (hereinafter the "Commencement Date") for the Leased Premises and
continuing thereafter for the Lease Term unless sooner terminated as hereinafter
provided. Notwithstanding anything to the contrary herein contained the tenant
may enter upon the Leased Premises on September 1, 1997 and begin to renovate
and remodel the Leased Premises. If the Tenant shall open for business prior to
December 31, 1997, Tenant shall not pay to the Landlord the rent, pro-rata
common charges or real estate taxes prior to January 1, 1998. It shall however
pay in lieu thereof the sum of Five Thousand Dollars ($5,000) on the first day
it commences business prior to January 1, 1998
2.3.1 Initial Term and Extensions. Initial Term. For a term of thirty (30)
months (hereinafter referred to as the "Initial Term"), or until and unless
sooner terminated as provided herein, said Initial Term to commence on the
Commencement Date and terminate at the close of the day preceding the thirtieth
(30th) month anniversary of the Commencement Date.
Extension Options Seven options of thirty months each.
Tenant shall have the option, at its election, to extend the Initial
Term for an additional term of thirty (30) months (hereinafter referred to as
the "First Option Term") to commence on the day next following the end of the
Initial Term and to end at the close of the day preceding the thirty (30) month
anniversary of the commencement of the First Option Term.
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Tenant shall have the option, at its election, to extend the First
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the "Second Option Term") to commence on the day next following the end of
the First Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Second Option Term.
Tenant shall have the option, at its election, to extend the Second
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the "Third Option Term") to commence on the day next following the end of
the Second Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Third Option Term.
Tenant shall have the option, at its election, to extend the Third
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the "Fourth Option Term") to commence on the day next following the end of
the Third Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Fourth Option Term.
Tenant shall have the option, at its election, to extend the Fourth
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the "Fifth Option Term") to commence on the day next following the end of
the Fourth Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Fifth Option Term.
Tenant shall have the option, at its election, to extend the Fifth
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the "Sixth Option Term") to commence on the day next following the end of
the Fifth Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Sixth Option Term.
Tenant shall have the option, at its election, to extend the Sixth
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the "Seventh Option Term") to commence on the day next following the end
of the Sixth Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Seventh Option Term.
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2.3.2 Automatic Exercise of Extension Options. The extension options shall
automatically be deemed exercised unless Tenant notifies the Landlord, in
writing, of its intention not to so exercise an extension option, said notice to
be given not less than 90 days from the end of the then current term. Tenant
shall have no right to exercise future extension options if Tenant chooses not
to exercise an earlier extension option. Any extension option shall not be
automatically deemed exercised if Tenant is notified in writing that it is in
material default or breach of any provisions of this lease.
2.3.3 Commencement Date/Termination Date. When the dates of the beginning and
end of the Initial Term relative to the Leased Premises have been determined
(hereinafter referred to as the Commencement Date and the Termination Date),
such dates shall be evidenced by a document in the form of Notice of Lease for
recording and executed by Landlord and Xxxxxx and delivered each to the other.
2.3.4 First Refusal/Initial Option Terms. In the event Tenant exercises its
rights of first refusal as described in Section 10.12 below to rent more space
in the Leased Premises the rental of additional space shall be for a term
coextant with the then current term and the exercise of any option term shall be
deemed to be for both the Leased Premises and the additional space, they being
considered as part of the initial Leased Premises for all purposes under this
Lease.
2.3.5 Title Warranty to Defend. Landlord represents and warrants that it owns
the Ground Area in fee simple free from all encumbrances except those specified
in this Lease as noted on Exhibit A. Landlord will defend its title at its own
expense and will not suffer any liens to attach to the Building which would
interfere with the Tenant's use hereof.
ARTICLE III Improvements
3.1 Performance of Work and Approval of Landlord's Work. Landlord is delivering
the Leased Premises to Tenant in as is condition. Landlord represents and
warrants that the Building has been constructed in compliance with all laws
applicable at the time of construction, including without limitation the State
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Building Code of the Commonwealth of Massachusetts (hereinafter the "Code") and
the Zoning ByLaws of the Town of Dracut, Massachusetts. Upon discovering that
the Building is not in compliance with the Code, the Tenant shall give prompt
written notice thereof to Landlord, specifying the noncompliance. Landlord
agrees to repair and correct any such noncompliance within a reasonable period
of time. In the event that Landlord fails to correct any noncompliance to the
Leased Premises within a reasonable period but in no event not less.than forty
five days, Tenant may at its option, correct said noncompliance and bill
Landlord its reasonable and direct costs of repair.
ARTICLE IV Rent
4.1 The Rent. Tenant covenants and agrees to pay rent, to Landlord or to such
agent as designated by Landlord, at Xxxxxxxx's Original Address or to such other
address as Landlord may by notice in writing to Tenant from time to time direct,
The Landlord directs that payments be made to First Lakeview Avenue Limited
Partnership at the following rates and times:
(a) Annual Fixed Rent. For the first thirty (30) months of the Initial
Term as that term is defined for each portion of the Leased Premises as set
forth in Article 2.3.1 above, Annual Fixed Rent as follows: (i) Interior Space
$59,064.00 annually, $4,922.00 monthly, payable in advance beginning on the
Commencement Date (being pro-rated for any portion of a month) and being payable
on the first day of each month thereafter during the term of this Lease, as
extended. (ii) Drive Up/and Parking Area $13,364.00 annually, $1,113.67 monthly,
payable in advance beginning on the Commencement Date (being prorated for any
portion of a month) and being payable on the first day of each month thereafter
during the term of this Lease, as extended.
(b) Annual Fixed Rent. With respect to months 31 through 60 and every
succeeding thirty months during the Initial Term and all extension options as
set forth in Article 2.3, and 2.3.1, Annual Fixed Rent during such period and
all extended terms, for each portion of the Leased Premises shall be the sum of
(a) the Annual Fixed Rent being paid during the preceding thirty month period
(whether Initial Term or any one of the extended terms)
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and (b) the product of (i) the Annual Fixed Rent being charged during the
preceding thirty month period multiplied by (ii) the amount, expressed as a
percentage equal to 50 per cent of the increase, if any, in the index now known
as the Consumer's Price Index for All Urban Consumers, All Items, for the Boston
Area as published by the Bureau of Labor Statistics, United States Department of
Labor ("CPI") for the thirty month period next preceding the commencement of the
current extended term or the preceding thirty month period of the Initial Term.
The Initial PPI shall be the PPI published on or most recently prior to the
Commencement Date and the PPI utilized to calculate the increase shall be the
PPI published on or most recently prior to the commencement of the current
extended term or the preceding thirty month period of the Initial Term. If
publication of the PPI shall be discontinued, the Landlord will select a
reasonably comparable index for use thereafter and provide notice thereof to the
Tenant. In no event will Annual Fixed Rent during the Initial Term or any
extended term be less than the Annual Fixed Rent during the preceding thirty
month period.
In the event that Tenant or Tenant's corporate parent is the subject of
a change in control notice or merger or new bank holding company application the
effect of which would be to transfer directly or indirectly control of Tenant,
then the percentage increase in PPI used in calculating prospective changes in
subsequent lease extension payments shall be 100% instead of 50%.
(c) Annual Fixed Rent shall be payable in advance, in equal monthly
installments of 1/12th of the Annual Fixed Rent on the first day of each
calendar month from and after the Commencement Date.
(d) Proration of Annual Fixed Rent for Partial Months. For any period
that the Tenant is in possession of the Leased Premises at the expiration of any
term, Annual Fixed Rent and, Additional Rent and shall be prorated on a per diem
basis for such period.
4.2 (a) Real Estate Taxes. Tenant covenants and agrees to pay, as Additional
Rent, with respect to each calendar or other tax year beginning or ending during
the term hereof, an amount equal to 44.50 per cent the (Tenant's Proportionate
Share), being that portion of the real estate taxes and betterment assessments
which may be assessed, as of the first day of each tax year during this Lease
upon or payable for or in respect of the Building and Real Property, which is
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the result from multiplying the same by a fraction, the numerator of which is
the number of square feet of area of the Leased Premises (the Leased Premises
Square Footage as set forth in Article 1.1), and the denominator of which shall
be the total leaseable square footage of floor area of the Building (the
Building Rentable Area as set forth in Article 1.1). Tenant's share of such real
estate taxes shall be adjusted for and with respect to any partial tax years on
a per diem basis. The real estate taxes for any tax year shall mean such amounts
as shall be finally determined to be the real estate taxes payable for said tax
year; that is, the real estate taxes assessed for said tax year less any
abatements, refunds or rebates made thereof.
(b) Tenant shall pay Additional Rent attributable to real estate taxes
within 30 days of Xxxxxx's receipt of a copy of the tax bill from the Landlord.
If Tenant does not pay the Additional Rent attributable to real estate taxes on
time as set forth above, then Tenant shall be subject to provisions of paragraph
9.1 of this Lease.
(c) If the Landlord does not give the Tenant notice of its intent to
file for an abatement or if the Landlord does not file for an abatement, then
Tenant shall have the right to apply at its sole cost and expense for an
abatement of real estate taxes assessed against the Building, Real Property, at
any time and from time to time, in its own name or the name of the Landlord. If
at least thirty (30) days prior to the last day for filing application for
abatement of real estate taxes for any tax year, Landlord shall give notice to
Tenant that it (Landlord) desires to file an application for abatement of real
estate taxes for said tax year and if within twenty (20) days after the receipt
of said notice Tenant shall not give notice to Landlord that it (Tenant) shall
file such application, Landlord shall have the right, at its own cost and
expense, to file the same prior to the expiration of the time for filing at its
own cost and expense. In any event, notwithstanding the foregoing, if any
abatement of real estate taxes on the Building, or Real Property, by whomever
prosecuted, shall be obtained, the cost and expense of obtaining the abatement
shall be a first charge upon the said abatement. If Landlord shall file an
application for abatement pursuant to this paragraph, Landlord will prosecute it
to final determination with due diligence. If Tenant shall file an application
for abatement for any tax year after having received notice from Landlord that
Landlord desires to file an application for abatement for said tax year, Tenant
shall prosecute the same to final determination with due diligence. If either
party shall prosecute an application for an abatement, the other will cooperate
and furnish any pertinent information in its files reasonably required by the
prosecuting party.
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ARTICLE V
5.1 Landlord's Repair and Maintenance Responsibilities/ Fire Insurance
with respect to the Building.
5.1.1 Repairs. Notwithstanding anything to the contrary herein, Landlord shall
be responsible for the maintenance and/or repair of (a) the exterior of the
Building including the canopy and roof and structural elements (meaning those
portions of the Building used to support the Building) of the Leased Premises,
and the windows for the Leased Premises on the first floor and the large window
for the Leased Premises which is two stories high and the Building and the
directory signs; (b) the driveways and parking lot including plowing, lighting
and landscaping; (c.) plumbing, utility, HVAC and/or electrical services to be
furnished by Landlord pursuant to this Lease excepting such repairs as are
necessitated by the Tenant's negligence and except for normal plumbing
maintenance which shall be the responsibility of the Tenant.
5.1.2 Maintenance. Landlord shall maintain the common areas of the Building in
good order and repair and shall furnish receptacles for trash storage for the
Tenant, (ie, a dumpster) and shall provide regular trash removal to and from the
shopping center and daily cleaning of the common areas.
5.1.3 Snow Removal. Landlord shall remove snow and ice from the Common Areas and
with respect to the parking lot shall have said area plowed and accessible to
Tenant's employees, customers and patrons no later than 7:30 a.m. on all
business days. Should Landlord fail to perform the snow and ice removal Tenant
shall have the right to do the same and bill Landlord for the cost of the
removal. If Landlord does not pay the bill within forty-five days, or send
notice to Tenant that it, in good faith, contests the amount of such bill,
Tenant may offset the amount of the bill from its next rental payment.
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5.1.4 Parking Lot Maintenance. Landlord shall be responsible for maintaining the
parking lot and driveup lanes in good order which shall include the obligation
to clean and sweep the lot, sealing the parking surface at least once every five
years, maintaining lighting, maintaining visible white or yellow lines
designating parking spaces, painting the same at least once every three years,
maintenance of shrubberies, holiday decorations and maintaining the parking lot
drainage system in good working order and repair.
5.1.5 Fire Insurance and Liability Insurance. Landlord shall, throughout the
term of this Lease, at its expense, keep the Building insured against all loss
or damage by fire with extended coverage in such amount as any mortgagee(s) may
require but in no event less than the full replacement value of the Building. In
addition to and not in limitation of the provisions of Section 7.1.6, Landlord
agrees to maintain comprehensive public liability insurance naming Tenant as
insured in an amount not less than $500,000.00 with respect to injuries or
damages to any one person and not less than $1,000,000 with respect to injuries
suffered in any one accident and not less than $1,000,000 with respect to
property damageoccurring upon, in, or about the parking lot which forms a
portion of the Leased Premises. All Liability Insurance shall provide coverage
for all persons who enter the property including but not limited to the Landlord
and the Tenant, their employees, agents, contractors, subcontractors and
employees, and agents of contractors and subcontractors as well as customers and
invitees to the Leased Premises.
5.1.6 Tenant's Obligation to Pay ProRata Share. Tenant shall reimburse Landlord
for a prorata portion which is agreed to be 44.50% of the cost described in
Article V Sections 4.2.b., 5.1.1(b)(c), 5.1.2, 5.1.3, 5.1.4 and 5.1.5, thereof
which is agreed to be based upon the area of the Leased Premises compared with
the total occupied building area of the Building. Landlord shall furnish Tenant
with a breakdown of the costs and if Tenant requests, Tenant may inspect the
bills, invoices or other documents
5.2 Tenant's Repair and Maintenance Responsibilities.
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5.2.1 Repairs. Notwithstanding anything to the contrary herein, Tenant shall be
responsible for the maintenance and/or repair of (a) the leased Leased Premises,
including the interior and exterior thereof, including structural elements,
plumbing, utilities, HVAC and/or electrical services;(b) the drive up windows
exclusively reserved for the use of the Tenant as an appurtenant right to the
Building excepting such repairs as are necessitated by the Landlord's
negligence.
ARTICLE VI Utilities and Services .
.
6.1 Installation of Utilities and Services Provided by Landlord. Landlord has
provided as part of the original installations leading to the Leased Premises
the necessary mains, conduits, facilities and fixtures in order that all utility
services required to satisfy Tenant's specifications and requirements and shall
furnish access to the Tenant to the mains, conduits, facilities and fixtures for
the Tenant's use. The Tenant acknowledges that said installations fulfill its
commercial needs and accept same in as is condiition Landlord will, without
extra charge, except as provided below, during the period the Tenant shall
occupy the Leased Premises under the terms hereof and in accordance with
customary standards for firstclass office buildings as established from time to
time by the National Association of Building Owners and Managers, furnish such
hot and cold running water as may be reasonably required for the comfortable use
and occupation thereof; maintain and repair the structure, exterior and Common
Areas of the Building; furnish electricity for lighting and lights for the
Common Areas but not for the Leased Premises, and remove snow from the parking
area and driveup lanes and from the access to the Building.
6.2 Utilities and Charges Therefor. Tenant shall reimburse Landlord for a
prorata portion of the cost of water/sewer, gas, electricity, light, heat and
power, or other service used, rendered or supplied to or for the Common Areas of
the Building based upon the area of the Leased Premises compared with the total
occupied building area of the Building which its prorata share is agreed to be
44.50%. Tenant agrees to pay or cause to be paid directly to the provider of or
party charged with the collection of all charges for water, gas, electricity,
light, heat, and power, telephone, or other service used, rendered or supplied
to or for the Tenant upon or in connection with the Leased Premises throughout
the term of this Lease, and to indemnify Landlord and save it harmless against
any liability or damages on such account. Landlord has installed separate
utility meters throughout the Building and shall, in any lease or other rental
agreements for space within the Building, require each tenant to be responsible
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for the payment of all utility charges incurred by it. It is understood and
agreed that, notwithstanding the fact that Landlord shall supply and furnish
such utilities to the Leased Premises, Landlord shall not be liable for any
interruption or failure in the supply of any such utilities to the Leased
Premises. If a charge shall be made from time to time by the public authority
having jurisdiction of the Leased Premises for the use of the sanitary sewer
system, Tenant shall pay its Proportionate Share thereof. Tenant shall pay to
Landlord, as billed, Tenant'a Proportionate Share of water bills. In case any
such water rates and sewer charges are not paid by Tenant at the time when the
same are payable, if to city officials, Landlord may nevertheless pay the same
to such officials and charge Tenant the cost thereof, which charge shall become
payable on the first day of the following month as additional rent. For the
purposes of this Article, Xxxxxx's Proportionate Share shall mean of 44.50%
percent of the total common area building charges.
6.3 Tenant's Obligation to Pay ProRata Share. Tenant shall reimburse Landlord
for a prorata portion of the cost thereof based upon the net rentable area of
the Leased Premises compared with the Building rentable area which prorata share
is agreed to be 44.50 per cent.
ARTICLE VII Tenant's Additional Covenants
7.1 Affirmative Covenants. Tenant covenants at its expense, at all times during
the Lease Term and such further time as Tenant occupies the Leased Premises and
Existing Building or any part thereof as follows:
7.1.1 Permitted Uses. To use the leased Leased Premises for banking purposes
including all uses permitted for a federally insured bank or lending institution
and other financial service business uses, including operation of automatic
teller machines, as may be allowed banking institutions by law and for general
professional office space.
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7.1.2 Intentionally omitted.
7.1.3 Compliance with Law. To make all repairs, alterations, additions or
replacements to the Leased Premises and necessitated or required by any law or
ordinance or any order or regulation of any governmental authority except for
environmental and Americans for Disabilty Act which shall be the
responsibilities of landlord applicable on account of Tenant's use of the Leased
Premises and Existing Building; to keep the Leased Premises and Existing
Building equipped with all safety appliances so required because of such use; to
procure any licenses and permits required for any such use; to pay all
municipal, county or state taxes assessed against the leasehold interest
hereunder, or personal property of any kind owned by or placed in, upon or about
the Leased Premises and the Building by Xxxxxx; and to comply with the orders
and regulations of all governmental authorities, except that Tenant may defer
compliance so long as the validity of any such law, ordinance, order or
regulation shall be contested by Tenant in good faith and by appropriate legal
proceedings, if Tenant first gives Landlord written notice thereof. In the event
of such contest, Tenant shall indemnify and hold harmless the Landlord from any
fines, penalties, or other liability arising therefrom. 7.1.4 Payment for Tenant
Work. To pay promptly when due the entire cost of any work to the Leased
Premises and undertaken by Xxxxxx and to bond against or discharge any liens for
labor or materials within 10 days after written request by Xxxxxxxx; to procure
all necessary permits before undertaking such work; and to do all of such work
in a good and workmanlike manner, employing materials of good quality and
complying with all governmental requirements except as are the responsibilities
of landlord.
7.1.5 Liability Insurance. To maintain with responsible companies qualified to
do business in Massachusetts and in good standing therein and workmen's
compensation insurance with statutory limits covering all of Tenant's employees
working in the Leased Premises and Existing Building, and to deposit promptly
with Landlord certificates for such insurance, and all renewals thereof, bearing
the endorsement that the policies will not be cancelled until after 10 days'
written notice to Landlord.
Tenant will maintain general comprehensive public liability insurance
with respect to the Leased Premises naming Landlord and Tenant as insureds on an
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occurrence basis, in amounts not less than $500,000 with respect to injuries or
damages to any one person and not less than $1,000,000 with respect to injuries
suffered in any one accident, and not less than $1,000,000 with respect to
property damage, occurring upon, in or about the Leased Premises or arising out
of the Tenant's use of the Leased Premises. Tenant shall deliver to Landlord the
policies of such insurance, or certificates thereof for the Existing Building,
for the Leased Premises at least fifteen (15) days prior to the Commencement
Date and for each renewal policy or certificate thereof, at least fifteen (15)
days prior to the expiration of the policy it renews. Each such policy shall
provide that it may not be modified or cancelled without at least twenty (20)
days' written notice to Landlord. All policies of insurance to be maintained by
Tenant under this Lease shall be written by responsible insurance companies
authorized to do business in the Commonwealth of Massachusetts and shall name
Landlord and Tenant as insureds as their respective interests may appear. All
Liability Insurance shall provide coverage for all persons who enter the
property including but not limited to Landlord and the Tenant, their employees,
agents, contractors, subcontractors and employees, and agents of contractors and
subcontractors as well as customers and invitees to the Leased Premises.
7.1.6 Tenant Conformance to Property Insurance Requirements. Tenant shall not do
or permit to be done any act or thing upon the Leased Premises or elsewhere in
the Building, or the Real Property which will invalidate or be in conflict with
the Massachusetts standard form of fire, boiler, water damage or other insurance
policies covering the Leased Premises, Building, or Real Property, and will not
bring or keep anything on the Leased Premises, Existing Building or Real
Property which shall increase the rate of any such insurance policy or obstruct
or interfere with the rights of other tenants of the Building or in any way
injure or annoy them or those having business with them. Tenant shall comply, in
the conduct of its business and in the making of any alterations, with all
rules, orders, regulations or requirements of the local Board of Fire
Underwriters and the New England Fire Insurance Rating Association or any other
body having a similar function and exercising jurisdiction over the Real
Property, the Leased Premises, the Building or the Existing Building.
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7.1.7 Landlord's Right to Enter. Landlord shall have the right to enter upon the
Leased Premises or any part of either thereof, without charge, at all reasonable
times while the tenant is open for business and, in case of emergency, at any
time, to examine, inspect or protect the same, to show the Leased Premises to
prospective purchasers or tenants, to make or facilitate any repairs,
alterations, additions or improvements to the Leased Premises, including, but
without limitation, to install and maintain in and remove from the Leased
Premises and the pipes, wires and other conduits, and Tenant shall not be
entitled to any abatement or reduction of rent or damages by reason of any of
the foregoing. Except in case of emergency, any such access shall be performed
in such a manner so as to interfere as little as reasonably possible with the
operation of the business being conducted in the Leased Premises and only upon
reasonable advance written notice. In cases where Landlord shall have the right
to enter the Leased Premises and it is understood that Landlord shall comply
with any security arrangements established from time to time by Xxxxxx, and
Xxxxxx agrees that it will always provide Landlord entry upon the Leased
Premises and Existing Building upon reasonable notice, under general supervision
by an employee of Tenant and, in case of emergency, immediate entry into the
Leased Premises under such supervision.
7.1.8 Insurance of Tenant's Personal Property. All personal property of the
Tenant (including furnishings, fixtures and equipment) in the Leased Premises,
in the Building or shall be at the risk of the Tenant and Tenant shall,
throughout the Term of this Lease, keep the same insured against all loss or
damage by fire or other casualty. Landlord shall furnish and maintain builders
risk insurance while renovating and remodeling under paragraph 2.3 of this
Lease.
7.1.9 Yield Up of the Leased Premises. At the Termination Date of the Lease
Term, and on on surrender, Tenant shall remove from the Leased Premises, its
personal property, trade fixtures and repair any damage to the Leased Premises
caused by the removal. Any items not removed by Tenant as required above, shall
be considered abandoned. Landlord may dispose of abandoned items as Landlord
chooses. The Landlord shall bill the Tenant for its reasonable and direct costs
of removal and repair. The vault shall not be removed and if removed, the Tenant
shall not be billed for its removal or for any repair caused by its removal. The
Tenant shall not be responsible for Landlord's removal of wallspermanently
installed or built into the Leased Premises by Tenant. It is understood that all
personal property and trade fixtures brought onto the Leased Premises or which
are on the Leased Premises and which were acquired from the Landlord as set
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forth in Exhibit C of this Lease by the Tenant even if affixed to the Leased
Premises, including but not limited to vault components, security systems, ATM
machines, night deposit systems, driveup teller components, teller counter and
undercounter equipment furniture, furnishings and the like, shall be considered
personal property for which the Tenant shall have the absolute right to remove
same, subject to its obligations to repair set forth in this paragraph. Prior to
the commencement date the Landlord and the holder of all mortgages shall execute
a landlord's waiver acknowledging and consenting to the contents of this
paragraph.
7.2 Negative Covenants. Tenant covenants at all times during the Lease Term and
Extended Term and such further time as Tenant occupies the Leased Premises or
the Existing Building or any part of either thereof as follows:
7.2.1 Assignment, Subletting, Etc. Tenant shall have absolute and unrestricted
right to assign, transfer, encumber, mortgage or pledge this Lease in whole or
in part all or any part of the Leased Premises, so long as each such assignment
or transfer shall be for a Permitted Use and shall be expressly subject to and
subordinate to the terms, provisions and conditions of this Lease. Tenant shall
have the right with Xxxxxxxx's consent, such consent not to be unreasonably
withheld, to enter into subleases, for all or any portion of the Leased Premises
on terms and conditions to be negotiated by the Tenant above, so long as each
such sublease shall be for a Permitted Use and shall be expressly subject to and
subordinate to the terms, provisions and conditions of this Lease. However, in
no case shall the Tenant be relieved of any liability under this Lease by virtue
of any assignment, transfer, encumbrance, mortgage, pledge or sublease.
7.2.2 Overloading, Nuisance, Etc. Not to injure, overload, deface or otherwise
harm the Leased Premises; nor suffer any waste; nor commit any nuisance; nor
permit the emission of any objectionable noise or odor; nor burn any trash or
refuse within the Building, nor make any use of the Leased Premises which is
improper, offensive or contrary to any law or ordinance or which will invalidate
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or increase the cost of any of Landlord's insurance; nor use any advertising
medium that may constitute a nuisance, such as loudspeakers, sound amplifiers,
phonographs or radio or television broadcasts in a manner to be heard outside
the Leased Premises; nor sell or display merchandise on, or store or dispose of
trash or refuse, on, or otherwise obstruct, the driveways, walks, malls, parking
areas and other common areas in the Building except that four times a year of
each year of the term as extended the Landlord shall be allowed to use the
sidewalks and portions of the parking area for a promotional cookout or like
event and to use in connection therewith loudspeakers, sound amplifiers,
phonographs or radio or television broadcasts in a manner to be heard outside
the Leased Premises; ; nor park trucks or delivery vehicles outside the Leased
Premises so as to interfere unreasonably with the use of any driveways, walks,
malls or parking areas.
7.2.3 Installation, Alteration or Additions. Not to make any structural repairs,
installations, alterations, improvements, or additions (except only the
installation of office furniture dividers, partitions, drapery and rugs or of
fixtures necessary for the conduct of its business), without on each occasion
obtaining prior written consent of Landlord which consent shall not be
unreasonable withheld or delayed, and then only pursuant to plans and
specifications approved by Landlord in advance in each instance, which approval
shall not be unreasonably withheld or delayed.
All such repairs, alterations, installations, improvements and
additions shall become the property of the Landlord, provided, however, all
articles of personal property including office systems, checkwriting desks,
Xxxxx Xxxxxxxxx wall systems and the like, and all business machinery and
equipment and appurtenances thereto and furniture owned or placed by Tenant in
the Leased Premises or Building shall remain the property of Tenant and may be
removed by Tenant at any time, provided that Tenant, at its expense, shall
repair to the reasonable satisfaction of Landlord any damage to the Leased
Premises or Building caused by such removal. Any items not removed by Tenant as
required above, shall be considered abandoned. Landlord may dispose of abandoned
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items as Landlord chooses. The Landlord shall bill the Tenant for its reasonable
and direct costs of removal and repair. The vault shall not be removed and if
removed, the Tenant shall not be billed for its removal or for any repair caused
by its removal. The Tenant shall not be responsible for Landlord's removal of
walls affixed to the Building by the Tenant permanently installed or built into
the Leased Premises by the Tenant.
Tenant will procure all necessary permits before making any repairs,
installations, alterations, additions, improvements or removals. Xxxxxxxx agrees
that it will cooperate with Xxxxxx in obtaining such permits. Tenant agrees that
all repairs, installations, alterations, improvements and removals done by it or
anyone claiming under it shall be done in a good and workmanlike manner, that
the same shall be done in conformity with all laws, ordinances and regulations
of all public authorities and all insurance inspection or rating bureaus having
jurisdiction, that the structure of the Leased Premises, or Building will not be
endangered or impaired and that Tenant will repair any and all damage caused by
or resulting from any such repairs installations, alterations, additions,
improvements or removals, including, but without limitation, the filling of
holes. Xxxxxx agrees to pay promptly when due all charges for labor and
materials in connection with any work done by Tenant or anyone claiming under
Tenant upon the Leased Premises, or Building so that the Leased Premises, and
Building shall at all times be free of liens. Xxxxxx agrees to save Landlord
harmless from, and indemnify Landlord against, any and all claims for injury,
loss or damage to person or property caused by or resulting from the doing of
any such work.
ARTICLE VIII Casualty or Taking
8.1 Landlord to Repair or Rebuild. In case the Leased Premises or any part
thereof shall be damaged or destroyed by fire or other casualty, or ordered to
be demolished by the action of any public authority in consequence of a fire or
other casualty, or taken by any exercise of the right of eminent domain, this
Lease shall, unless it is terminated as provided below in Article 8.2 or Article
8.3, remain in full force and effect and Landlord shall at its expense,
proceeding with all reasonable dispatch, repair or rebuild the Leased Premises,
or what may remain thereof, so as to restore them (not including Xxxxxx's
fixtures, furniture, furnishings, floor coverings and equipment) as nearly as
practicable to the condition they were in immediately prior to such damage,
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destruction, or taking, but Landlord shall not be required to expend in such
repair or rebuilding more than the proceeds of insurance or award of damages, if
any, recovered or recoverable with respect to such damage, destruction or
taking, less Landlord's reasonable expenses incurred in collecting such proceeds
or award, as the case may be. If the Landlord's restoration has not been
completed within one hundred eighty (180 ) days from the date of the casualty,
Tenant shall have the right to terminate this Lease in the manner set forth
below in Article 8.2.
8.2 Right to Terminate in Event of Casualty. In case the Building in which the
Leased Premises are situated is destroyed or so damaged by fire or other
casualty insured under any fire and extended coverage insurance policy carried
by Landlord so as to render the Leased Premises untenantable; then in such case,
Tenant may at its election, exercisable by written notice, given to Landlord 180
days after such destruction or damage, and If the Landlord's restoration has not
been completed within one hundred eighty (180 ) days from the date of the
casualty, terminate this Lease as of the date designated by Tenant in such
notice, which designated date shall be not less than 15 days nor more than 30
days after the date of such notice.
8.3 Termination in Event of Taking. If all the Leased Premises are taken by
eminent domain, this Lease shall terminate when Tenant is required to vacate the
Leased Premises. If by a taking the floor area of the Leased Premises is reduced
by more than 20 percent thereof, this Lease may at the option of the Tenant be
terminated,as of the date when Tenant is required to vacate the portion of the
Leased Premises so taken, by written notice given to the Landlord not more than
thirty (30) days after the date on which the Tenant receives notice of the
taking. Floor area shall not include the loss of more than 25% of the parking
area and parking spaces and material reduction in the traffic flow area for
access to the drive up facility.
8.3.1 Restoration. In the event of a casualty or taking and so long as this
Lease does not terminate as aforesaid, Landlord shall, within a reasonable time,
restore what may remain of the Leased Premises to substantially the same
condition they were in prior thereto, subject to reduction in size thereof,
consistent, however, with zoning laws and building codes then in existence. A
just proportion of the all rent payments, according to the nature and extent of
the injury to the Leased Premises, shall be abated until what may remain of the
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Leased Premises shall be restored as aforesaid. Tenant shall at its own expense
proceed with all reasonable dispatch, and in any event less than one hundred
(120) days after Landlord's restoration shall have been completed, repair or
replace such of its fixtures, furniture, furnishings, floor coverings and
equipment as may be required as a result of such damage, destruction or taking.
8.4 Landlord Reserves Award. Landlord reserves and excepts all rights to awards
for damages to the Leased Premises or Building and the leasehold estate hereby
created now accrued or hereafter accruing (not including awards for damages, to
Tenant's trade fixtures, interior partitions installed by Xxxxxx and other
installations made by Tenant which Xxxxxx is entitled to remove upon termination
of this Lease) by reason of any exercise of the right of eminent domain, or by
reason of anything lawfully done in pursuance of any public or other authority;
and by way of confirmation Tenant grants to Landlord all Tenant's rights to such
awards and covenants to execute and deliver such further instruments of
assignment thereof as Landlord may from time to time request. It is further
agreed and understood, however, that Landlord does not reserve to itself and
Tenant does not assign to Landlord, any damages payable for any special fixtures
installed by Tenant at its own cost and expense, or any damages which are
considered "special damages" to Tenant, including without limitation any moving
or relocation expenses the Tenant may be entitled to by law or damages arising
from the Tenant's loss of its leasehold interest. 8.5 Abatement of Rent. In the
event of any casualty or taking, a just proportion of the all the rent payments
(as defined in Article 4.1) payable hereunder, according to the nature and
extent of the injury, shall be abated until completion of repairs or rebuilding
or termination of this Lease, as the case may be; and in the case of a taking
which permanently reduces the area of the Leased Premises, a just proportion The
Rent (as defined in Article 4.1) shall be abated for the remainder of the Lease
Term or Extended Term, as the case may be.
ARTICLE IX Defaults
9.1 Events of Default. If Tenant shall default in performance of any of its
obligations to pay rent, Annual Fixed Rent, Common Area Rental Charges and Tax
Reimbursements, hereunder, and if such default shall continue for fifteen days
after written notice from Landlord then, and in any such case, Landlord lawfully
may, in addition to and not in derogation of any remedies for any preceding
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breach of covenant, mail a notice of termination addressed to Tenant at Tenant's
Original Address as specified in Article 1.1, and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant without prejudice to any remedies which might otherwise be used for
arrears of rent or preceding breach of covenant, and upon such entry or mailing
as aforesaid this Lease shall terminate.
If within thirty days after written notice from Landlord to Tenant
specifying any other default or defaults, Tenant has not commenced diligently to
correct the default or defaults so specified or has not thereafter diligently
pursued such correction to completion, in either case subject to the provisions
of Article 10.6, then, and in any such case, Landlord lawfully may, in addition
to and not in derogation of any remedies for any preceding breach of covenant,
or mail a notice of termination addressed to Tenant at Tenant's Original Address
as specified in Article 1.1, and repossess the same as of Landlord's former
estate and expel Tenant and those claiming through or under Tenant without
prejudice to any remedies which might otherwise be used for arrears of rent or
preceding breach of covenant, and upon such entry or mailing as aforesaid this
Lease shall terminate. There shall be due to Landlord a late charge for failure
of Tenant to pay rent, annual fixed rent, common area rental charges and tax
reimbursement at the rate of 7% computed until the date the default is cured and
commencing on the date the payment is due.
9.2 Remedies. In the event that this Lease is terminated under any of the
provisions contained in Article 9.1 or shall be otherwise terminated for breach
of any obligation of Tenant, Tenant covenants to pay punctually to Landlord all
sums and perform all the obligations which Tenant covenants in this Lease to pay
and to perform in the same manner and to the same extent and at the same time as
if this Lease had not been terminated. In calculating the amounts to be paid by
Tenant under the next foregoing covenant, Tenant shall be credited with any
amount paid to Landlord as net proceeds of any rent obtained by Landlord by
reletting the Leased Premises, after deducting all Landlord's expenses in
connection with such reletting, including, without limitation, all repossession
costs, brokerage commissions, fees for legal services and expenses of repairing
the Leased Premises for such reletting, it being agreed by Tenant that Landlord
may but is not obligated to (i) relet the Leased Premises or any part or parts
23
thereof, for a term or terms which may, at Landlord's option, be equal to or
less than or exceed the period which would otherwise have constituted the
balance of the Lease Term, and (ii) make such removals and repairs in the Leased
Premises as Landlord in its reasonable judgment considers advisable or necessary
to relet the same, and no action of Landlord in accordance with the foregoing or
failure to relet or to collect rent under any reletting shall operate or be
construed, to the extent permitted by law, to release or reduce the Tenant's
liability as aforesaid.
Nothing contained in this Lease shall, however, limit or prejudice the
right of Landlord to prove for and obtain in proceedings for bankruptcy or
insolvency by reason of the termination of this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater, equal to, or less than the amount of the loss or damages
referred to above. 9.3 Remedies Cumulative. The specific rights or remedies to
which Landlord or Tenant may resort under the terms of this Lease are cumulative
and are not intended to be exclusive of any other remedies or means of redress
to which Landlord or Tenant, as the case may be, may be lawfully entitled to in
case of any breach or threatened breach by either of them of any provisions of
this Lease. No mention in this Lease of any specific right or remedy shall
preclude either party from exercising any other right or from having any other
remedy or from maintaining any other action to which it may otherwise be
entitled either at law or equity.
9.4 Landlord's Right to Cure Defaults. Landlord may, but shall not be obligated
to, cure, at any time, following thirty days' prior written notice to Tenant,
except in cases of emergency when no notice shall be required, any default by
Tenant under this Lease; and whenever Landlord so elects, all costs and expenses
incurred by Landlord, including reasonable attorneys' fees, in curing a default
shall be paid by Tenant to Landlord on demand.
9.5 Effect of Waivers of Default. The failure of either party to seek redress
for violation of, or to insist upon the strict and literal performance of any
term, covenant or condition of this Lease, shall not be deemed a waiver of such
violation or a relinquishment for the future of such covenant, right or option,
nor prevent a subsequent act, which would have originally constituted a
24
violation, from having all the force and effect of an original violation, but
the same shall remain in full force and effect. The receipt by Landlord of rent,
with or without knowledge of the breach of any term, covenant or condition
hereof shall not be deemed a waiver of such breach. No provisions of this Lease
shall be deemed to have been waived by either party unless such waiver be in
writing.
9.6 Landlord's Default. Except for breach by Landlord of the covenant of quiet
enjoyment, Landlord shall not be deemed to be in default in the performance of
any of its obligations hereunder unless it shall fail to perform such
obligations and such failure shall continue for a period of thirty (30) days
after written notice has been given by Tenant to Landlord specifying the nature
of Landlord's default. In the event of any such default which prevents the
Tenant or its subtenant(s) from conducting their usual business, if Landlord has
not commenced to cure any such default on or before the expiration of said
thirty (30) days, Tenant may elect either: (a) to terminate this Lease entirely
or as to any portion of the Leased Premises affected by the default by giving
written notice thereof to Landlord, whereupon this Lease shall be terminated for
those portions of the Leased Premises specified in the notice and the
obligations of Tenant hereunder shall thereupon cease or (b) may cure such
defaults at the Landlord's expense.
ARTICLE X Miscellaneous Provisions
10.1 Notice from One Party to the Other. Any notice from Landlord to Tenant or
from Tenant to Landlord shall be deemed duly served if mailed by registered or
certified mail addressed, if to Tenant, at the Tenant's Original Address or such
other address as Tenant shall have last designated by notice in writing to
Landlord and, if to Landlord, at the Landlord's Original Address or such other
address as Landlord shall have last designated by notice in writing to Tenant.
10.2 Quiet Enioyment. Landlord covenants and agrees that upon Xxxxxx's paying
the Annual Fixed Rent, Additional Rent and Common Area Rental Charges, and
performing and observing the agreements, conditions and other provisions on its
part to be performed and observed, Tenant shall and may peaceably and quietly
have, hold and enjoy the Leased Premises during the Lease Term without any
manner of hindrance or molestation from Landlord or anyone claiming under
Landlord, subject, however, to the terms of this Lease and to any mortgage which
may be superior to this Lease.
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10.3 Notice of Lease Lease not to be Recorded. Both parties shall, upon the
request of either, execute, acknowledge and deliver a notice of this Lease, in
recordable form, setting forth, inter alia the Commencement Date and the
Termination Date for the Leased Premises. If this Lease is terminated before the
Term expires under the terms hereof, the parties shall execute, acknowledge and
deliver and record an instrument acknowledging such fact and the actual date of
termination of this Lease.
10.4 Limitation of Landlord's Liability/Joint and Several Liability. No owner of
the Leased Premises shall be liable under this Lease except for breaches of
Landlord's obligations occurring while owner of the Leased Premises, and, if
Landlord is a trust, Landlord's obligations hereunder shall not be binding upon
the Trustees of said Trust individually nor upon the shareholders or
beneficiaries of said Trust, but only upon the Trustees as trustees and upon
their trust estate. In the event that two or more individuals, corporations,
partnerships or other business associations (or any combination of two or more
thereof) shall sign this Lease as Tenant, the liability of each such individual,
corporation, partnership or other business association to pay rent and perform
all other obligations hereunder shall be deemed to be joint and several. In the
event that the Tenant named in this Lease shall be a partnership or other
business association the members of which are, by virtue of statute or general
law not subject to personal liability then, and in such event, the liability of
each such member shall be deemed to be joint and several notwithstanding such
statute or general law.
10.5 Acts of God. In any case where either party hereto is required to do any
act, delays caused by or resulting from Acts of God, war, civil commotion, fire
or other casualty, labor difficulties, shortages of labor, materials or
equipment, government regulations or other causes, to the extent that any of
which are beyond such party's reasonable control, shall not be counted in
determining the time during which work shall be completed, whether such time be
designated by a fixed date, a fixed time or 'a reasonable time." "Financial
inability" is expressly excluded as a cause for such delay in performance.
10.6 Waiver of Subrogation. The Landlord hereby releases the Tenant, to the
extent of the Landlord's insurance coverage, from any and all liability for any
loss or damage caused by fire or any of the extended coverage casualties or any
other casualty insured against, even if such fire or other casualty shall be
brought about by the fault or negligence of the Tenant or its agents, provided,
however, this release shall be in full force and effect only with respect to
26
loss or damage occurring during such time as the Landlord's policies covering
such loss or amage shall contain a clause to the effect that this release shall
not affect said policies or the right of the Landlord to recover thereunder. The
Landlord agrees that its fire and other casualty insurance policies will include
such a clause so long as the same is includable without extra cost, or if extra
cost is chargeable therefor, so long as the Tenant pays such extra cost. If
extra cost is chargeable therefor, the Landlord will advise the Tenant thereof
and of the amount thereof. The Tenant at its election may pay the same, but
shall not be obligated to do so.
The Tenant hereby releases the Landlord to the extent of the Tenant's
insurance coverage, from any and all liability for any loss or damage caused by
fire or other casualty insured against, even if such fire or other casualty
shall be brought about by the fault or negligence of the Landlord or its agents,
provided, however, this release shall be in force and effect only with respect
to loss or damage occurring during such time as the Tenant's policies covering
such loss or damage shall contain a clause to the effect that this release shall
not affect said policies or the right of Tenant to recover thereunder. The
Tenant agrees that its fire and other casualty insurance policies will include
such a clause so long as same is includable without extra cost, or if extra cost
is chargeable therefor, so long as the Landlord pays such extra cost. If extra
cost is chargeable therefor, the Tenant will advise the Landlord thereof and of
the amount thereof. The Landlord at its election, may pay the same, but shall
not be obligated to do so.
Each party hereby waives all rights of recovery against the other. for
loss or injury against which the waiving party is protected by insurance
containing said provisions, reserving, however, any rights with respect to any
excess of loss of injury over the amount recovered by such insurance. Neither
party shall acquire as insured under any insurance carried by the other any
right to participate in the adjustment of loss or to receive insurance proceeds
and agrees upon request promptly to endorse and deliver to the other party any
checks or other instruments in payment of loss in which it is named a payee.
27
10.7 Status Certificate. Each party agrees from time to time, upon not less than
fifteen (15) days prior written request, to execute, acknowledge and deliver to
each other a statement in writing certifying that this Lease is unmodified and
in full force and effect and that Tenant has no defenses, offsets or
counterclaims against its obligations to pay the Annual Fixed Rent, Common Area
Rental Charges, Ground Rent, Additional Rent and Additional Ground Area Rent,
and any other charges and to perform its other covenants under this Lease and
that there are no uncured defaults of Landlord or Tenant under this Lease (or,
if there have been any modifications that the same is in full force and effect
as odified and stating the modifications and, if there are any defenses,
offsets, counterclaims, or defaults, setting them forth in reasonable detail),
and the dates to which the Annual Fixed Rent, Cormnon Area Rental Charges,
Ground Rent, Additional Rent and Additional Ground Rent and any other charges
have been paid. Any such statement delivered pursuant to this Article 10.7 may
be relied upon by any prospective purchaser or prospective Mortgagee of the
Leased Premises or of the Building or any prospective assignee of any such
Mortgage.
10.8 Rights of Mortgagee and Subordination
10.8.1 Unless Landlord exercises the option set forth in Article 10.8.2 below,
this Lease shall be superior to and shall not be subordinated to any mortgage or
other voluntary lien or other encumbrance on the Leased Premises, Real Property
or the Building, hereinafter in this Article 10.8 referred to as "the mortgaged
Leased Premises." No holder of a mortgage shall be liable either as mortgagee or
as assignee, to perform, or be liable in damages for failure to perfor many of
the obligations of Landlord unless and until such holder shall have entered as
mortgagee in possession or until such holder shall have acquired indefeasible
title to the Real Property and the Building and then only subject to and with
the benefit of the provisions of Article 10.5. No Annual Fixed Rent, Common Area
Rental Charges, Additional Rent or any other charge shall be paid more than ten
days prior to the due dates thereof and payments made in violation of this
provision shall (except to the extent that such payments are actually received
by a mortgagee in possession or in the process of foreclosing its mortgage) be a
nullity as against such mortgagee and Tenant shall be liable for the amount of
such payments to such mortgagee. The covenants and agreements contained in this
Lease with respect to the rights, powers and benefits of a mortgagee
28
(particularly, without limitation thereby, the covenants and agreements
contained in this Article (10.8.1) constitute a continuing offer to any person,
corporation or other entity becoming the mortgagee of the mortgaged Leased
Premises, and such mortgagee is hereby constituted an obligee of Tenant to the
same extent as though its name was written hereon as such; and such mortgagee
shall be entitled to enforce such provisions in its own name. Xxxxxx agrees on
request of Xxxxxxxx to execute and deliver from time to time any agreement which
may be necessary to implement the provisions of this Article 10.8.1.
10.8.2 Tenant agrees at the request of Landlord to subordinate this Lease to any
mortgage placed upon the mortgaged Leased Premises by Xxxxxxxx, provided that
the holder of such mortgage enters into an agreement with Tenant binding upon
the successors and assigns of the parties thereto by the terms of which such
xxxxxx agrees not to disturb the possession and other rights of Tenant under
this Lease including all rights of first refusal so long as Tenantcontinues to
perform its obligations hereunder and in the event of acquisition of title by
said holder through foreclosure proceedings or otherwise, to accept Tenant as
tenant of the Leased Premises under the terms and conditions hereunder or to
sell said Leased Premises and/or the Building subject to this Lease, and Xxxxxx
agrees to recognize such holder or any other person acquiring title to the
Leased Premises as Landlord. Tenant and Xxxxxxxx agree to execute and deliver
any appropriate instruments necessary to carry out the agreements in this
Article 10.8 contained. Any such mortgage to which this Lease shall be
subordinated may contain such terms, provisions and conditions as the mortgagee
deems usual or customary.
10.9 No Accord and Satisfaction. No acceptance by Landlord of a lesser sum than
the Annual Fixed Rent, Common Area Rental Charge, Additional Rent or any other
charge then due shall be deemed to be other than on account of the earliest
installment of such rent or charge due, nor shall any endorsement or statement
on this Lease is capable of two constructions, one of which would render the
provision void and the other of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
10.10 Parking. As of the commencement date and during the remainder of the term
hereof, Landlord shall provide at least 50 unreserved parking spaces for the
Building and will not reserve any parking spaces in the front of the Building
for Tenant, or any other tenant in the Building. In addition, Xxxxxx agrees to
cause its employees to park only in the spaces designated in the rear of the
Building. Landlord agrees that it will, in its leases of the Building with other
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tenants, include a provision requiring their employees to park in the parking
spaces in the rear of the Building. At the option of the Tenant 15 spaces shall
be reserved for the exclusive use of the customers of the Tenant and to be
located in front of the Leased Premises. In addition the Landlord agrees that
Tenant shall, during the term hereof, with others, have the nonexclusive right
to use the parking facilities of ground area for the accommodation and parking
of such automobiles of Tenant, its officers, agents and employees, and its
customers. All parking area shall be designated on Exhibit A attached hereto. At
no time may the parking spaces be reduced below that which is presenly located
on the area designated on Exhibit A, except as provided for in Section 8.3.
10.11 Right of First Refusal Purchase. If at any time during any term of this
lease, Landlord shall receive and be willing to accept the bone fide offer from
a third party to purchase the shopping center or if Landlord shall offer to sell
the property to any third party, Landlord shall, if there is no event of
default, promptly transmit to Tenant its offer to sell the property to Tenant
upon same terms and conditions as those offered by or to the third party,
together with a true copy of such original offer. If Tenant shall not accept
such offer within fortyfive (45) days after it is made, Landlord may, after the
expiration of such fortyfive (45) day period, sell such interest to a third
party upon terms and conditions as those offered to the Tenant. If Tenant
accepts such offer by notice to Landlord within the time permitted, the offer
and acceptance shall constitute a contract for the sale by Landlord and the
purchase by Tenant of the property at a closing to be held within thirty (30)
days following the receipt by Landlord by Tenants notice of acceptance. On the
date of such purchase, the Landlord shall convey the Leased Premises in
consideration of the payment of the purchase price. by quitclaim deed, conveying
good clear record and marketable title to the Leased Premises free of all liens
and encumbrances except this lease and except for easements and restrictions of
record which are listed on Exhibit D attached hereto. The Landlord may use the
purchase price to pay off mortgage liens and like encumbrances. If Landlord
shall be unable to give title, the Landlord shall use reasonable efforts to
remove such defects in title. All remaining conditions of sale shall be as found
in the current Greater Boston Real Estate Board form purchase and sale agreement
as reasonably adjusted for this transaction.
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10.12. Right of First Refusal Adjacent Property Lease. (a.) If at any time
during any term of this lease, the Landlord shall receive and be willing to
accept the bona fide offer from a third party to lease any other building or
portion of a building located in the shopping center, or if Landlord shall offer
to lease the property to any third party, Landlord shall, if there is no event
of default, promptly transmit to Tenant its offer to lease the property to
Tenant upon terms and conditions as those offered by or to the third party,
together with a true copy of such original offer. If Tenant shall not accept
such offer within thirty (30) days after it is made, Landlord may, after the
expiration such thirty (30) day period, lease such interest to a third party
upon terms and conditions as those offered to the Tenant. If Xxxxxx accepts such
offer by notice to Landlord within the time permitted, the offer and acceptance
shall constitute a contract for lease by Landlord and by Tenant of the property
to be executed within thirty (30) days following the receipt by Landlord by
Tenants notice of acceptance. On the date of such leasing, Landlord shall lease
the Leased Premises free of all tenants and occupants. . The Landlord shall have
a continuing obligation to offer the same for lease to the Tenant throughout any
term of this lease before it enters into a lease for same with any other person.
10.13 Intentionally Omitted.
10.14 Signage. Tenant shall be allowed to maintain and erect all signage it
deems to be necessary. The nature and location of any sign to be erected by
Tenant shall be subject to consent of the Landlord which shall not be
unreasonably withheld or delayed. The Landlord shall install and maintain a
building directory sign in the main lobby of the building. Xxxxxx agrees to
obtain any necessary municipal permits for the erection and maintenance of such
signage and to pay the cost thereof. In the event the sign is in violation of
any town of governmental ordinance, Tenant shall immediately correct such
violation at its own cost and expense and indemnify Landlord for any cost,
penalty, loss or damage incurred by Landlord as a result of said sign(s).
10.15 Satellite Dish. Tenant shall be allowed to install and maintain a
satellite dish and antenna on the roof of the Building. All costs of
installation and maintenance shall be borne by the Tenant. The installation
shall be made so as not to damage the Building or Building systems. Tenant shall
indemnify Landlord for any and all damages caused to the building or building
systems by the dish or antenna or the maintenance thereof.
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11.0. Lease as Entire Agreement. This Lease contains the entire and only
agreement between the parties and all prior negotiations, representations,
statements, warranties, understandings and agreements whether written or oral
with respect to the Leased Premises, the Building, the Real Property or this
Lease are merged in this Lease and any such statements, representations,
warranties, understandings or agreements, whether oral or written, not referred
to or contained in this Lease shall have no force or effect. Tenant acknowledges
that all representations, statements, warranties, agreements, and understandings
upon which Tenant relied in executing this Lease are contained herein and that
Tenant in no way relied upon any other representations, statements, warranties,
agreements, or understandings whether written or oral.. This Lease may not be
changed, modified or discharged in any way, and no executory agreement shall be
effective to change, modify or discharge, in whole or in part, this Lease or any
obligations under this Lease, unless such agreement is set forth in a written
instrument signed by the parties.
12.0. Captions. All headings used herein are for convenience only and do not
constitute a part of this Lease and in no way do they limit or amplify the terms
and provisions of this Lease.
13.01 Tenant's Contingency. The Tenant's obligations under this lease shall be
contingent upon its obtaining all approvals from the Commissioner of Banks of
the Commonwealth of Massachusetts and the Federal Deposit Insurance Corporation
so as to enable the Tenant to operate a branch of a commercial bank and trust
company in and upon the Leased Premises. The Tenant agrees to make all the
necessary applications as soon as this lease is executed and to proceed with
such application in a good faith manner. If such approvals are not obtained by
September 1, 1997, Landlord at its option may terminate this lease unless the
Tenant elects to proceed with the Lease without such approvals.. If there is a
termination hereunder, Tenant at its sole cost and expense shall remove any
items of personal property from the Leased Premises and shall repair and restore
the Leased Premises to their previous condition prior to Tenant fit up, in a
timely and expeditious manner.
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13.02 The Tenant shall pay to the Landlord the sum of Two Hundred Fourteen
Thousand Six Hundred-Fifty ($214,650.00) Dollars and the Landlord will deliver
to the Tenant a Bill of Sale for the personal property and Leasehold
Improvements ( "Personalty") listed in Exhibit C conveying the Personalty to the
Tenant free of all liens and encumbrances. One Hundred Seven Thousand, Three
Hundred Twenty Five Dollars ($ 107,325.00) shall be paid in or within ten days
of the date the Tenant shall receive its regulatory approvals and the balance
shall be paid on the earlier of commencement date of the Lease or on the date
the Bank opens for business. If the Drive-Up Equipment is not in good working
order, when delivered to the Tenant, the Tenant will notify Landlord and
thereafter the Tenant will repair the same and will deduct an amount not to
exceed Ten Thousand Dollars ($10,000.00) for the Drive up equipment repair from
the second installment to be paid to the Landlord.
13.03 In the event the Landlord shall lease any portion of the building and or
the ground area to another financial services company that would compete with
Tenant in a line of Tenant's business, then the base rent due to the Landlord
shall be reduced by fifty percent (50) commencing the commencement date of the
other such financial services lease, unless otherwise agreed to by Landlord and
Tenant.
14. Hazardous Waste: Xxxxxxxx agrees to indemnify and hold harmless the Tenant
of and from any damages, including but not limited to reimbursement for mandated
clean-up, costs of litigation and the like, arising from any hazardous waste
which may exist on the Leased Premises, either at the time of the commencement
date of the lease or subsequently, unless such release or threat of release is
due to or caused by Tenant activities or persons or entities under its control.
15. ARBITRATION. Any disagreement between the parties with respect to the
interpretation or application of this lease or the obligations of the parties
hereunder shall be determined by arbitration. Such arbitration shall be
conducted, upon request of either the Landlord or the Tenant, before three
arbitrators (unless the Landlord or the Tenant agree to one arbitrator)
designated by the American Arbitration Association and in accordance with the
rules of such Association. The arbitrators designated and acting under this
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lease shall make their award in strict conformity with such rules and shall have
no power to depart from or change any of the provisions thereof. The expense of
arbitration proceedings conducted hereunder shall be borne equally by the
parties. All arbitration proceedings hereunder shall be conducted in the county
in which the leased property is located. It is agreed that if at any time a
dispute shall arise as to any amount or sum of money to be paid by one party to
the other under the provisions hereof, the party against whom the obligation to
pay the money is asserted shall make payment "under protest" and such payment
shall not be regarded as a voluntary payment and there shall survive the right
on the part of said party to institute suit for the recovery of such sum, and if
it shall be adjudged that there was no legal obligation on the part of said
party to pay such sum or any part thereof, said party shall be entitled to
recover such sum or so much thereof as it was not legally required to pay under
the provisions of this lease; and if at any time a dispute shall arise between
the parties hereto as to any work to be performed by either of them under the
provisions hereof, the party against whom the obligation to perform the work is
asserted may perform such work and pay the cost thereof "under protest" and the
performance of such work shall in no event be regarded as a voluntary
performance, and there shall survive the right on the part of said party to
institute suit for the recovery of the cost of such work, and, if it shall be
adjudged that there was no legal obligation on the part of such party to perform
the same or any part thereof, said party shall be entitled to recover the cost
of such work or the cost of so much thereof as said party was not legally
required to perform under the provisions of this lease. 16.0 This instrument
shall be binding upon the parties and their respective succesors and assigns
WITNESS the execution hereof in triplicate and under seal on the day
and year first above written.
------------------------------ -----------------------------
Witness Witness
LANDLORD:
0000 XXXXXXXX XXXXXX REALTY TRUST
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx
Trustee as aforesaid and notindividually
TENANT:
ENTERPRISE BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Senior Vice President
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