EXHIBIT 10.13
LEASE
BASIC LEASE PROVISIONS
1.01 Date and Parties. This lease (Lease) is made the 1ST day of September,
1997, between, Xxxxxxx X. Xxxxxxxx as Trustee of Merrimack Realty Trust
(Landlord) and Enterprise Bank and Trust Company (Tenant). Landlord is a Nominee
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 which is located in the office building located at 000 Xxxxxx
Xxxxxx in Lowell. The office building has three addresses, namely 00 Xxxxxx
Xxxxxx, 000 Xxxxxx Xxxxxx and 000 Xxxxxxxxx Xxxxxx. The Leased Premises consists
of 3415 square feet of interior space and is located on the third floor of the
Building.
2.2.1. Appurtenant Rights. The Leased Premises 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, stairways and
elevators, 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 building. The term
Leased Premises wherever used herein, shall include any and all structures,
parking facilities and common facilities built therein.
2.3 Term. TO HAVE AND TO HOLD the Leased Premises for an Initial Term as set
forth below (hereinafter the "Initial Term") subject to the agreements, terms
and conditions herein contained. The Initial Term is to commence on September 1,
1997 (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.
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 thirty
(30) month anniversary of the Commencement Date.
Extension Options Eleven 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.
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
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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.
Tenant shall have the option, at its election, to extend the Seventh
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the ("Eighth Option Term") to commence on the day next following the end
of the Seventh Option Term and to end at the close of the day preceding the
thirty (30) month anniversary of the commencement of the Eighth Option Term.
Tenant shall have the option, at its election, to extend the Eighth
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the ("Ninth Option Term") to commence on the day next following the end of
the Eighth Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Ninth Option Term.
Tenant shall have the option, at its election, to extend the Ninth
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the ("Tenth Option Term") to commence on the day next following the end of
the Ninth Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Tenth Option Term.
Tenant shall have the option, at its election, to extend the Tenth
Option Term for an additional term of thirty (30) months (hereinafter referred
to as the ("Eleventh Option Term") to commence on the day next following the end
of the Tenth Option Term and to end at the close of the day preceding the thirty
month anniversary of the commencement of the Eleventh Option Term.
2.3.2 Automatic Exercise of Extension Options. The extension options shall
automatically be deemed exercised unless Tenant
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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 Tenant 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 10.11 below to rent more space
in the Leased Premises the rental of additional space shall be for a term agreed
to between Landlord and Tenant which agreement shall not be unreasonably delayed
or withheld.
2.3.5 Title Warranty to Defend. Landlord represents and warrants that it owns
the Building in fee simple free from all encumbrances except those specified in
this Lease as noted on Exhibit A. Landlord, to the extent possible, using all
good faith efforts, 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
Building Code of the Commonwealth of Massachusetts (hereinafter the "Code") and
the Zoning Ordinance of the City of Lowell, 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 which will not be fixed or
removed as part of the Tenant's renovations 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 xxxx Landlord its
reasonable and direct costs of repair.
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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 Landlord'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 Landlord at the following rates
and times:
4.1.a. Annual Fixed Rent. For the first thirty (30) months of the Initial Term
as that term is defined in Article 2.3 above, Annual Fixed Rent shall be as
follows: $16,221.25 annually, $1,351.77 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.
4.1.b. Annual Fixed Rent. With respect to months 31 through 60 Annual Rent for
the Leased Premises shall be the sum of (a) the Annual Fixed Rent being paid
during the preceding thirty month period (The Initial Term or any one of the
extended terms) 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 75% 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 CPI shall be the CPI published on
or most recently prior to the Commencement Date and the CPI utilized to
calculate the increase shall be the CPI 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 CPI 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.
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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 CPI used in calculating prospective changes in
subsequent lease extension payments shall be 100% instead of 75%.
4.1.c. Annual Fixed Rent. With respect to months 61 through 90 Annual Fixed Rent
for the Leased Premises shall be the sum of (a) the Annual Fixed Rent being paid
during the preceding thirty month period 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 75% 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 CPI shall be the
CPI published on or most recently prior to the Commencement Date and the CPI
utilized to calculate the increase shall be the CPI 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 CPI 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 CPI used in calculating prospective changes in
subsequent lease extension payments shall be 100% instead of 75%.
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4.1.d The annual rent for the months 91 through 120 month of the original term
of this Lease shall be the market rent of the Premises based on general office
space in Lowell of similar quality and condition as of the end of the ninetieth
(90th) month of the lease and determined as follows: Landlord and Tenant shall
attempt to agree upon such market rent. If the parties have not agreed in
writing as to the rent on or before 85th month of this lease, then the market
rent shall be determined by arbitration as provided herein. 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
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.
Upon the determination of such "market rent" the Landlord shall use
such in the calculation of the Base Rent as set forth in this Lease. If, for any
reason, the decision of the appraiser or the appraisers pursuant to this Exhibit
shall not be determined before the commencement of the extension period, then
the Tenant shall continue to pay Minimum Annual Rent in monthly installments at
the rate in effect immediately prior to the commencement of such extension
period until such decision of the appraiser(s) shall be made, and upon the
decision by the appraiser(s) an appropriate adjustment shall be made,
retroactive to the first day of such extension.
4.1.e. Annual Fixed Rent. With respect to months 121 through 150 and
every succeeding thirty months during the Initial Term and all extension options
as set forth in Article II, 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 and
(b) the product of (I) the Annual Fixed Rent being
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charged during the preceding thirty month period multiplied by (ii) the amount,
expressed as a percentage equal to 75% percent of the increase, if any, in the
index now known as the Consumer 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 CPI shall be the CPI published on or most
recently prior to the Commencement Date and the CPI utilized to calculate the
increase shall be the CPI 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 CPI 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 CPI used in calculating prospective changes in
subsequent lease extension payments shall be 100% instead of 75%.
4.1.f. 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.
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 roof
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and structural elements (meaning those portions of the Building used to support
the Building)and (b) the interior directory signs; (c) the driveways and parking
lot, including plowing and, lighting (d) plumbing, utility, HVAC and/or
electrical services to be furnished by Landlord except as modified by Tenant
during renovations pursuant to this Lease except repairs as are necessitated by
the Tenant's negligence.
5.1.2 Maintenance. Landlord shall maintain the common areas of the Building in
good order and repair and regular cleaning of the common areas.
5.1.3 Snow Removal. Landlord shall remove snow and ice from the Common Areas,
the parking lot, sidewalks and passageways and shall have said areas plowed and
accessible to Tenant's employees, customers and patrons no later than 7:30 a.m.
on all business days, subject to weather conditions.
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, 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 damage occurring upon, in, or about the common areas which form 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.
5.2 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 Premises,
including the interior, but excluding building structural elements, but
including plumbing, utilities, HVAC and/or electrical services 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 condition 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 existing standards
for like office buildings as established from time to time by the National
Association of Building Owners and Managers, furnish such hot water for heat and
hot and cold running water as may be reasonably required for the comfortable use
and occupation thereof; maintain and repair the structure, except as otherwise
specified herein, exterior and Common Areas of the Building; furnish electricity
for lighting and lights for the Common Areas but not for the Leased Premises.
6.2 Utilities and Charges Therefor. Tenant agrees to pay or cause to be paid
directly to the provider of or party charged with the collection of all charges
for electricity, light, 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
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agreements for space within the Building, require each tenant to be responsible
for the payment of all utility charges incurred by it. Landlord however is
responsible to furnish hot water for heating purposes and to pay for all heating
expenses.
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, of
the building or any part thereof as follows:
7.1.1 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 or as may be allowed banking institutions by law
and for general professional office space.
7.1.2 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 with Disabilities 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 Tenant; and to comply with the orders
and regulations of all governmental authorities except as aforesaid, 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
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from any fines, penalties, or other liability arising therefrom. Notwithstanding
anything in this paragraph to the contrary the Tenant shall be responsible to
make all repairs, alterations, additions or replacements to the Leased premises
which are required for compliance with the American with Disabilities Act
applicable to the sole use of the Leased premises by the Tenant and limited to a
service provided by the Tenant and further limited only to the 000 Xxxxxx Xxxxxx
building and 00 Xxxxxx Xxxxxx building.
7.1.3 Payment for Tenant Work. To pay promptly when due the entire cost of any
work to the Leased Premises and undertaken by Tenant and to bond against or
discharge any liens for labor or materials within 10 days after written request
by Landlord; 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.
7.1.4 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 canceled 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
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
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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 canceled 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.
7.1.5 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.
7.1.6 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
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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 Tenant, and Tenant 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.
7.1.7 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.
7.1.8 Yield Up of the Leased Premises. At the Termination Date of the Lease
Term, and 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 xxxx the Tenant for its reasonable and direct costs
of removal and repair. The Tenant shall not be responsible for Landlord's
removal of walls permanently 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 even if affixed to
the Leased Premises, shall be
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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.
The foregoing notwithstanding if the Tenant shall terminate this lease
in or within the first 90 months of the Lease, at the option of the Landlord and
with notice to Tenant, the Tenant shall restore the premises to a condition
where the premises are divided into the same number of offices which existed
prior to the renovation, provided however, that the cost for such restoration
will not exceed $15,000, present valued to the date of the lease or adjusted for
inflation in determining such present value.
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 Landlord's consent, such consent not to be unreasonably
withheld or delayed, 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.
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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
or increase the cost of any of Landlord's insurance.
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 and initially agreed upon
repairs and alterations), without on each occasion obtaining prior written
consent of Landlord excluding initial construction which consent shall not be
unreasonably 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, 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 items as
Landlord chooses. The Landlord shall xxxx the Tenant for its reasonable and
direct costs of removal and repair. 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
16
removals. Landlord agrees that it will cooperate with Tenant 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. Tenant 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. Tenant
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 Tenant's
fixtures, furniture, furnishings, floor coverings and equipment) as nearly as
practicable to the condition they were in immediately prior to such damage,
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,
17
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.
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
Leased Premises shall be restored as aforesaid.
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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 Tenant and other
installations made by Tenant which Tenant 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.
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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, 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 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 7, 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 ____, 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, 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.
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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 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.
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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
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 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.
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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 Enjoyment. Landlord covenants and agrees that upon Tenant's paying
the Annual Fixed Rent, 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.
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)
23
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
loss or damage occurring during such time as the Landlord'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 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.
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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.
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, 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
25
same is in full force and effect as modified 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 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 perform 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, 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 (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. Tenant
agrees on request of Landlord to execute and deliver from time to time any
agreement which may be necessary to implement the provisions of this Article
10.8.1.
26
10.8.2 Tenant agrees at the request of Landlord to subordinate this Lease to any
mortgage placed upon the mortgaged Leased Premises by Landlord, 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
holder agrees not to disturb the possession and other rights of Tenant under
this Lease including all rights of first refusal so long as Tenant continues 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 Tenant
agrees to recognize such holder or any other person acquiring title to the
Leased Premises as Landlord. Tenant and Landlord 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 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. There are no parking spaces in connection with this lease.
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 office building or if Landlord shall offer to sell
the office building to any third party, Landlord shall, if there is no event of
default, promptly transmit to Tenant its offer to sell the
27
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.
10.12. Right of First Refusal(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 space on the third floor or any other space in the
entire building which is adjacent to space leased to Tenant or if Landlord shall
offer to lease the space to any third party, Landlord shall, if there is no
event of default, promptly transmit to Tenant its offer to lease the said space
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.
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If Tenant 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.
Tenant 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.
ARTICLE XI
11.0. Lease as Entire Agreement. This Lease contains the entire and only
agreement between the parties and all prior
29
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.
ARTICLE XII
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.
ARTICLE XIII
13. 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
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
30
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.
ARTICLE XIV
14.0 This instrument shall be binding upon the parties and their respective
successors and assigns
WITNESS the execution hereof in triplicate and under seal on
the day and year first above written.
------------------------- ---------------------------
Witness Witness
LANDLORD:
MERRIMACK REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Trustee as aforesaid and
not individually
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Trustee as aforesaid and
not individually
TENANT:
ENTERPRISE BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxx, Xx.
Senior Vice President
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