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EXHIBIT 10(a)(ii)
LEASE
BETWEEN
METROPARK, LTD.
AND
CAPITAL PROPERTIES, INC.
DATED AS OF NOVEMBER 1, 2000
(COVERING PARCELS 3E AND 4E)
III-4
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L E A S E
THIS INDENTURE OF LEASE made as of the 1st day of November, 2000, by
and between CAPITAL PROPERTIES, INC., a Rhode Island corporation (hereinafter
referred to as "Landlord"), and METROPARK, LTD., a Rhode Island corporation
(hereinafter referred to as "Tenant").
W I T N E S S E T H T H A T:
In consideration of the rents, covenants and agreements to be paid,
kept and performed by Tenant, as hereinafter provided, Landlord hereby demises
and leases to Tenant, and Tenant hereby hires and takes from Landlord the real
property known as Parcels 3E and 4E in the Capital Center, in Providence, Rhode
Island, as shown on a plan attached to this Lease as Exhibit A (hereinafter
called the "Premises").
TO HAVE AND TO HOLD the Premises, together with all rights, privileges,
easements and appurtenances thereunto belonging and attaching, unto Tenant for a
term of two (2) years (hereinafter called the "Term") commencing as of November
1, 2000, and ending on October 31, 2002.
This Lease is made upon the covenants and agreements herein set forth
on the part of the respective parties, all of which the parties respectively
agree to observe and comply with during the term hereof.
1. RENTAL.
During the period from November 1, 2000 to October 31, 2001, Tenant
shall pay to Landlord an annual rental of One Hundred Twenty-Nine Thousand Six
Hundred ($129,600) Dollars payable in monthly installments of Ten Thousand Eight
Hundred ($10,800) Dollars on the first day of each month without offset,
deduction or abatement.
During the period from November 1, 2001 to October 31, 2002, Tenant
shall pay to Landlord an annual rental of One Hundred Thirty-Five Thousand Six
Hundred ($135,600) Dollars payable in monthly installments of Eleven Thousand
Three Hundred ($11,300) Dollars on the first day of each month.
2. UTILITIES AND OTHER CHARGES.
Tenant will pay directly before the same become delinquent all
charges, duties, rates, license and permit fees and other amounts of every
description to which the Premises or any part thereof or any improvement thereon
erected or used by Tenant may, during the term hereof, be assessed or become
liable for electricity, refuse collection, telephone or any other utillities or
services or any connection or meters therefor, whether assessed to or payable by
Landlord or Tenant. Tenant will, within ten (10) days after receipt of written
demand by Landlord, furnish Landlord with receipts or other evidence indicating
that all such amounts have been paid. Provided, however, that Tenant shall only
be responsible for those charges and assessments which are for the period of its
occupancy of the Premises.
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3. TAXES AND ASSESSMENTS.
Landlord will pay and keep current the real estate taxes assessed
against the premises.
4. COMPLIANCE WITH LAWS AND REGULATIONS.
Tenant will at all times during the term hereof keep the Premises in
good order and a strictly sanitary condition and observe and perform all laws,
ordinances, orders, rules and regulations now or hereafter made by any
governmental authority for the time being applicable to the Premises or any
improvement thereon or use thereof, and with the orders, rules and regulations
of the National Board of Fire Underwriters or similar organization so far as the
same may relate to the use of the Premises, and will indemnify Landlord against
all actions, suits, damages and claims by whomsoever brought or made by reason
of the nonobservance or nonperformance of such laws, ordinances, orders, rules
and regulations, or of this covenant. Nothing herein shall obligate the Tenant
to construct any additional improvements on the Premises.
5. INSPECTION.
Tenant will permit Landlord and its agents at all reasonable times
during the term hereof to enter the Premises and examine the state of repair and
condition thereof, and the use being made of the same. Landlord may also enter
upon the Premises to perform any repairs or maintenance which Tenant has failed
to perform hereunder, and to show the premises to prospective purchasers,
tenants and mortgagees. Further, Landlord shall have the right to have test
borings done on the premises, and will use reasonable, good faith effort to
avoid unreasonable interference with the Tenant's business thereon.
6. REPAIR AND MAINTENANCE.
Tenant will, at its own expense, from time to time and at all times
during the term hereof, well and substantially repair, maintain, amend and keep
the Premises, together with all fixtures and items of personal property used or
useful in connection therewith, with all necessary reparations and amendments
whatsoever in as good order and condition as they now are or may be put in,
reasonable wear and tear and damage by the elements and such unavoidable
casualty against which insurance is not required hereunder excepted. Tenant will
maintain the signs on the Premises and fix all potholes that may develop. Tenant
will have the benefit of all warranties pertaining thereto. Tenant will remove
snow from the Premises and keep the sidewalks clean and free from ice and snow.
Landlord will be responsible for any capital improvements.
7. USE.
Tenant shall use the Premises only for the operation of a parking lot
and other accessories related to a parking lot which are approved by Landlord.
8. NOTICES RE PREMISES.
Landlord will forthwith furnish Tenant copies of any notices it
receives regarding the Premises from any third parties which notices relate to
the Tenant's use and occupancy of the Premises.
9. CANCELLATION OF LEASE.
Either Landlord or Tenant may cancel this Lease upon thirty (30)
days' written notice to the other.
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10. INSURANCE.
Tenant agrees to maintain at all times public liability insurance on
an occurrence basis against all claims and demands for personal injury liability
(including, without limitation, bodily injury, sickness, disease, and death) and
damage to property which may be claimed to have occurred on the Land or in the
Building in the event of injury to any number of persons or damage to property,
arising out of any one occurrence, which shall, at the beginning of the Term, be
at least equal to $1,000,000, and to name Landlord and any mortgagees and ground
lessors designated by landlord as additional insured and furnish landlord with
the certificates thereof; such insurance shall contain a provision that the
Landlord, and each such mortgagee and ground lessor although named as an
insured, shall nevertheless be entitled to recovery under said policy for any
loss occasioned to it, its servants, agents and employees by reason of the
negligence of the Tenant; all insurance required under the terms of this Lease
shall be effected with insurers having a general policyholders rating of not
less than A in Best's latest rating guide and shall not be canceled or modified
without at least 30 days' prior written notice to each insured named therein.
Tenant shall provide landlord with certificates of all insurance required to be
carried by Tenant under the Lease at or prior to the Commencement Date and prior
to the expiration of each such policy.
11. LANDLORD'S COSTS AND EXPENSES.
If Tenant shall fail to comply with any of its obligations hereunder,
landlord may, upon ten (10) days' prior written notice to Tenant (or without
notice in case of emergency), take any such action as may be reasonably required
to cure any such default by Tenant. Tenant will pay to Landlord, on demand, all
costs and expenses, including reasonable attorneys' fees, incurred by Landlord
in collecting any delinquent rents, or other charges payable by Tenant
hereunder, or in connection with any litigation commenced by or against Tenant
(other than condemnation proceedings) to which Landlord, without any fault on
its part, shall be made a party. All such amounts owing to Landlord shall
constitute additional rent hereunder.
12. INDEMNIFICATION OF LANDLORD.
12.1. Tenant shall indemnify and save harmless Landlord
(regardless of Tenant's covenant to insure) against and from any and all claims
by or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from the use, occupancy, conduct or management of the
Premises, unless done by or contributed to Landlord, any of its agents,
contractors, servants, employees or licensees, and shall further indemnify and
save Landlord harmless against and from any and all claims arising during the
term hereof from any condition of the Premises, or arising from any breach or
default on the part of Tenant in the performance of any covenant or agreement on
the part of Tenant to be performed pursuant to the terms of this Lease, or
arising from any act of Tenant or any of its agents, contractors, servants or
employees to any person, firm or corporation occurring during the term hereof in
or about the Premises or upon or under said areas, and from and against all
costs, counsel fees, expenses or liabilities incurred in or about any such claim
or action or proceeding brought thereon.
12.2. Tenant shall pay and indemnify Landlord against all legal
costs and charges incurred in obtaining possession of the Premises after the
default of Tenant or upon expiration or earlier termination of the term hereof,
other than by reason of any default of Landlord, or in enforcing any covenant or
agreement of Tenant herein contained.
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13. LIENS.
13.1. Tenant will not commit, suffer any act or neglect whereby the
Premises or any improvements thereon or the estate of Landlord therein shall at
any time during the term hereof become subject to any attachment, judgment,
lien, charge or encumbrance whatsoever, except as herein expressly provided, and
will indemnify and hold Landlord harmless from and against all loss, costs and
expenses, including reasonable attorneys' fees, with respect thereto.
13.2. If due to any act or neglect of Tenant, any mechanic's,
laborer's or materialmen's lien shall at any time be filed against the premises
or any part hereof, Tenant, within thirty (30) days after notice of the filing
thereof shall cause the same to be discharged of record by payment, bonding or
otherwise, and if Tenant shall fail to cause the same to be discharged, then
Landlord may, in addition to any other right or remedy, cause the same to be
discharged, either by paying the amount claimed to be due, or by procuring the
discharge of such lien by deposit or by bonding proceedings, and all amounts so
paid by landlord, together with all reasonable costs and expenses incurred in
connection therewith, and together with interest thereon at the rate of ten
percent (10%) per annum from the respective dates of payment, shall be paid by
Tenant to Landlord, on demand, as additional rent hereunder.
13.3. Nothing in this lease contained shall be deemed or construed in
any way as constituting the consent or request of Landlord, express or implied
by inference or otherwise, to any contractor, subcontractor, laborer,
materialmen, architect or engineer for the performance of any labor or the
furnishing of any materials or services for or in connection with the Premises
or any part thereof. Notice is hereby given that Landlord shall not be liable
for any labor or materials or services furnished or to be furnished to Tenant
upon credit, and that no mechanic's or other lien for any such labor, materials,
or services shall attach to or affect the fee or reversionary or other estate or
interest of Landlord in the Premises of and in this Lease.
14. DEFAULT.
14.1. In the event that during the term hereof any of the following
events shall occur (each of which shall be an "Event of Default");
(a) Tenant shall default in the payment of any installment of the
Rent for ten (10) days after the same shall become due, during which ten-day
period Tenant may cure the default;
(b) Tenant or any permitted assignee of Tenant shall (i) apply
for or consent to an appointment of a receiver, a trustee or liquidator of it or
of all or a substantial part of its assets; (ii) make a general assignment for
the benefit of creditors; (iii) be adjudicated a bankrupt or insolvent; (iv)
file a voluntary petition in bankruptcy or a petition or an answer seeking
reorganization or an arrangement with creditors to take advantage of any
insolvency law or an answer admitting the material allegations of a petition
filed against it in any bankruptcy, reorganization or insolvency proceeding or
corporate action shall be taken by it for the purpose of effecting any of the
foregoing;
(c) An order, judgment or decree shall be entered, without the
application, approval or consent of Tenant or any permitted assignee of Tenant
by any court of competent jurisdiction, approving a petition seeking
reorganization of Tenant or such assignee or appointing a receiver, trust or
liquidator of Tenant or such assignee or of all or a substantial part of its
assets and such order, judgment or decree shall continue unstayed and in effect
for any period of sixty (60) consecutive days; or
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(d) Any other default by Tenant in performing any of its other
obligations hereunder shall continue uncorrected for ten (10) days after receipt
of written notice thereof from Landlord, during which period Tenant or such
assignee may cure the default; then landlord may, by giving written notice to
Tenant, either (a) terminate this Lease, (b) re-enter the Premises by summary
proceedings or otherwise, expelling Tenant and removing all of Tenant's property
therefrom, and relet the Premises and receive the rent therefrom, or (c)
exercise any other remedies permitted by law. Tenant shall also be liable for
the reasonable cost of obtaining possession of and reletting the Premises and of
any repairs and alterations or other payments necessary to prepare them for
reletting. Any and all such amounts shall be payable to Landlord upon demand.
Notwithstanding anything contained herein to the contrary, no termination of
this Lease prior to the last day of the term hereof, except as provided in
Section 15 hereof, shall relieve Tenant of its liability and obligations under
this Lease, and such liability and obligations shall survive any such
termination.
14.2. In the event of any breach by Tenant of any of the covenants,
agreements, terms or conditions contained in this Lease, Landlord shall be
entitled to enjoin such breach or threatened breach and shall have the right to
invoke any right and remedy allowed at law or in equity, or by statute or
otherwise, as though reentry, summary proceedings and other remedies were not
provided for in this Lease.
14.3. Each right and remedy of Landlord provided for in this Lease
shall be cumulative and shall be in addition to every other right or remedy
provided for in this Lease or now or hereafter existing, at law or in equity, or
by statute or otherwise, and the exercise or beginning of the exercise by
Landlord of any one or more of the rights or remedies provided for in this
Lease, or now or hereafter existing at law or in equity, or by statute or
otherwise, shall not preclude the simultaneous or later exercise by Landlord of
any or all other rights or remedies provided for in this Lease, or now or
hereafter existing at law or in equity, or by statute or otherwise.
15. EMINENT DOMAIN.
If the whole or any part of the demised premises shall be condemned or
acquired by eminent domain for any public or quasi-public use or purpose, then
the term of this Lease shall cease and terminate as of the date of vesting of
title in such proceeding and all rentals shall be paid up to the date of the
vacating of the premises by Tenant and Tenant shall have no claim against
Landlord nor the condemning authority for the value of any unexpired term of
this Lease.
In the event of any condemnation or taking as aforesaid, whether whole
or partial, Tenant shall not be entitled to any part of the award paid for such
condemnation and Landlord is to receive the full amount of such award, Tenant
hereby expressly waiving any right or claim to any part thereof.
16. CONDITION OF PREMISES.
Tenant represents that the Premises, the sidewalks and structures
adjoining the same, and any subsurface conditions thereof, and the present uses
and non-uses thereof, have been examined by Tenant, and Tenant agrees that it
will accept the same in the condition or state in which they, or any of them,
now are, without representation or warranty, express or implied in fact or by
law, by Landlord, and without recourse to Landlord as to the nature, condition
or usability thereof, or the use or uses to which the Premises, or any part
thereof, may be put.
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17. INDEPENDENT COVENANTS--NO WAIVER.
17.1. Each and every of the covenants and agreements contained
in this Lease shall be for all purposes construed to be separate and independent
covenants and the waiver of the breach of any covenant contained hereby by
Landlord shall in no way or manner discharge or relieve Tenant from Tenant's
obligation to perform each and every of the covenants contained herein.
17.2. If any term or provision of this Lease or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and shall be enforced to the fullest extent permitted
by law.
17.3. The failure of Landlord to insist in any one or more cases
upon the strict performance of any of the covenants of this Lease shall not be
construed as a waiver or a relinquishment for the future of such covenant. A
receipt by Landlord of rent with knowledge of the breach of any covenant hereof
shall not be deemed a waiver of such breach, and no waiver by landlord of any
provision of this Lease shall be deemed to have been made unless expressed in
writing and signed by Landlord. All remedies to which landlord may resort under
the terms of this Lease or by law provided shall be cumulative.
18. SUBORDINATION.
This Lease and the rights of Tenant hereunder are subject and
subordinate in all respects to all matters of record, including, without
limitation, deeds and all mortgages which may now or hereafter be placed on or
affect the Premises, or any part thereof, and/or Landlord's interest or estate
therein, and to each advance made and/or hereafter to be made under any such
mortgages, and to all renewals, modifications, consolidations, replacements and
extensions thereof, and all substitutions.
19. QUIET ENJOYMENT.
Landlord covenants that Tenant, upon paying the rent and performing
the covenants hereof on the part of Tenant to be performed shall and may
peaceably and quietly have, hold and enjoy the Premises and all related
appurtenances, rights, privileges and easements throughout the term hereof
without any lawful hindrance by landlord and any person claiming by, through or
under it.
20. RETURN OF PREMISES.
At the expiration or other temination of the term hereof, Tenant will
remove from the Premises its property and that of all claiming under it and will
peaceably yield up to Landlord the Premises in as good condition in all respects
as the same were at the commencement of this Lease, except for ordinary wear and
tear, damage by the elements, by any exercise of the right of eminent domain or
by public or other authority, or damage which Landlord is required herein to
replace, restore or rebuild or damage for which no insurance is required
hereunder.
21. HOLDOVER.
Tenant agrees to pay to landlord twice the total of all rent then
applicable for each month or portion thereof Tenant shall retain possession of
the Premises or any part thereof after the termination of this Lease (unless and
to the extent such holding over shall be pursuant to a written agreement between
Landlord and Tenant), whether by lapse of time or otherwise, and also to pay all
damages sustained by landlord on account thereof; the provisions of this
subsection shall not operate as a waiver by Landlord of any right of re-entry
provided in this Lease or under law. Tenant shall also pay all
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reasonable legal fees and damages incurred by Landlord as a result of such
holdover.
22. LIMITATION OF LIABILITY.
Tenant shall neither assert nor seek to enforce any claim for breach
of this Lease against any of Landlord's assets other than Landlord's interest in
the Premises, and Tenant agrees to look solely to such interest for the
satisfaction of any liability of Landlord under this Lease, it being
specifically agreed that in no event shall landlord (which term shall include,
without limitation, any of the officers, employees, agents, attorneys, trustees,
directors, partners, beneficiaries, joint venturers, members, stockholders or
other principals or representatives, disclosed or undisclosed, thereof) ever be
personally liable for any such liability.
23. NO RECORDING OF LEASE.
Tenant hereby acknowledges and agrees that it shall not record this
Lease or any notice or memorandum of this Lease in any land evidence records or
any other publics without the express prior written consent of Landlord. In the
event of any such recording, Tenant shall be in default of this Agreement and
Landlord shall have all rights and remedies available under law or in equity as
a result of such recordation including, without limitation, the right to
terminate this Lease.
24. ASSIGNMENT AND SUBLETTING.
Tenant will not assign this Lease, in whole or in part, nor sublet
all or any part of the Premises, nor license, nor pledge or encumber by mortgage
or other instruments its interest in this Lease without landlord's prior written
consent, which consent may be withheld by landlord in its sole and absolute
discretion. This prohibition includes any subletting or assignment which would
otherwise occur by operation of law, merger, consolidation, reorganization,
transfer or other change of Tenant's corporate or trustee in any federal or
state bankruptcy, insolvency, or other proceedings. Consent by landlord to any
assignment or subletting shall not constitute a waiver of the foregoing
prohibition with respect to any subsequent assignment or subletting.
25. USE OF HAZARDOUS MATERIAL.
Tenant shall not cause or permit any Hazardous Material to be brought
upon, kept or used in or about the Premises by Tenant, its agents, employees,
contractors or invitees without the prior written consent of Landlord. If Tenant
breaches the obligations stated in the preceding sentence, or if contamination
of the Premises by Hazardous Material otherwise occurs, Tenant shall indemnify,
protect, defend and hold Landlord harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises, damages for the loss or
restriction on use of rentable Premises or usable space or of any amenity of the
Premises, damages arising from any adverse impact on marketing of Premises
space, and sums paid in settlement of claims, attorneys' fees, consultant fees
and expert fees) which arise during or after the Term as a result of such
contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any clean-up, remedial, removal or restoration work required by
any federal, state or local government agency or political subdivision because
of Hazardous Material present in the sole, surface water or groundwater on, near
or under the Premises.
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As used herein, the term "Hazardous Material" means any hazardous or
toxic substance, material or waste, including, but not limited to, those
substances, materials, and wastes listed in the United States Department of
Transportation Hazardous materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40CFR part 302) and
amendments thereto, or such substances, materials and wastes that are or become
regulated under any applicable local, state or federal law.
Landlord and its agents shall have the right, but not the duty, to
inspect the Premises at any time to determine whether Tenant is complying with
the terms of this Lease.
26. CONSTRUCTION.
The mention of the parties hereto by name or otherwise shall be
construed as including and referring to their respective successors and assigns
as well as to the parties themselves whenever such construction is required or
admitted by the provisions hereof; and all covenants, agreements, conditions,
rights, powers and privileges hereinbefore contained shall inure to the benefit
of and be binding upon the successors and assigns of such parties, unless
otherwise provided.
27. PERMITS.
Tenant, at its cost, shall obtain any necessary permits for the
Premises from the City of Providence.
28. NOTICES.
Whenever notice shall be given under this Lease, the same shall be in
writing and shall be sent by certified or registered mail, return receipt
requested as follows:
To the Landlord: 000 Xxxxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000
To the Tenant: c/o Xxxxxxx Xxxxxx
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
To the Tenant's Xxxxxxx Xxxxxxxxxxx
Attorney: 0 Xxxxx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000
or to such other address or addresses as each party may from time to time
designate by like notice to the other. Said notice shall be valid and times
begin to run hereunder upon receipt of the party to which said notice is given.
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed in duplicate as of the day and year first above written.
CAPITAL PROPERTIES, INC. METROPARK, LTD.
By /s/Xxxxxx X. Xxxxxxxxxxx By /s/Xxxxxxx Xxxxxx, Pres.
---------------------------- ---------------------------------
Xxxxxx X. Xxxxxxxxxxx, President Xxxxxxx Xxxxxx, President
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STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In Providence, in said County on the 2nd day of October, 2000, before
me personally appeared XXXXXX X. XXXXXXXXXXX, President of CAPITAL PROPERTIES,
INC., to me known and known by me to be the person executing the foregoing
instrument on behalf of said corporation, and he acknowledged said instrument by
him executed to be his free act and deed and the free act and deed of said
corporation.
/s/Xxxxxx X. Xxxxxxx
-----------------------------------------
Notary Public
Xxxxxx X. Xxxxxxx
My Commission Expires June 23, 2001
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In Providence, in said County on the 10 day of October, 2000, before me
personally appeared XXXXXXX XXXXXX, President of METROPARK, LTD., to me known
and known by me to be the person executing the foregoing instrument on behalf of
said corporation, and he acknowledged said instrument by him executed to be his
free act and deed and the free act and deed of said corporation.
/s/Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Notary Public
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GUARANTEE
In consideration of the execution of the foregoing lease by the Landlord, the
undersigned (jointly and severally, if more than one) guarantees that the Tenant
will pay all rent thereunder and will perform all other terms, conditions or
agreements on its part to be performed or fulfilled, and agrees that the
foregoing lease may be amended from time to time by the parties thereto without
notice to the undersigned. The undersigned consents that extensions of time of
payment or any other indulgences may be granted to the Tenant without notice to
and without releasing or affecting in any way the liability of the undersigned
and the undersigned waives demand and notice of default. This guarantee is in
addition to any other security which the Landlord may have for the performance
of the Tenant's obligations and the Landlord may have the recourse to this
guarantee without first pursuing the Landlord's remedies against such other
security, if any. The Landlord may release, in whole or in part, any other
security without releasing or affecting in any way the liability of the
undersigned. In addition, the undersigned will pay to the Landlord all costs and
expenses (including attorneys' fees) incurred in connection with the enforcement
of this guarantee.
Executed this 10 day of October, 2000.
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
