INDENTURE OF LEASE
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EAGLEWOOD SHOPS
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THIS INDENTURE OF LEASE made as of the 24th day of February, 2005, by and
between EAGLEWOOD PROPERTIES, LLC, a Massachusetts limited liability company
having a mailing address X.X. Xxx 000 Xxxxxxxxx, XX 00000 (hereinafter referred
to as the "Landlord"), of the one part, and the tenant named in Section 1.1(a)
below (hereinafter referred to as the "Tenant"), of the other part.
W I T N E S S E T H:
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ARTICLE I.
Basic Data
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Section 1.1. The following sets forth basic data hereinafter referred to
in this lease, and, where appropriate, constitute definitions of the terms
hereinafter listed.
(a) The Tenant: Georgetown Savings Bank, a federally chartered savings
bank with a last and usual place of business of 0 Xxxx Xxxx Xxxxxx, Xxxxxxxxxx,
XX 00000
(b) Present Mailing Address of the Tenant 0 Xxxx Xxxx Xxxxxx,
Xxxxxxxxxx, XX 00000
(c) The Tenant's Trade Name: Georgetown Savings Bank
(d) Lease Term: Commencing on the Commencement Date (as that term is
herein defined) and expiring on January 31, next following the 10th anniversary
of the Commencement Date.
(e) Commencement Date: Such date as is determined pursuant to Section 3.2
hereof.
(f) Minimum Rent Payment:
Year Annual Minimum Rent Monthly Minimum Rent
---- ------------------- --------------------
1-5 $102,200.00 $8,516.67
6-10 $117.530.00 $9,794.17
(g) Intentionally Omitted.
(h) Use: Only as a Savings Bank and related financial services and for
no other purpose, without the express consent of the landlord, which shall not
be unreasonably withheld.
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(i) Security Deposit: None
(j) Guarantor of the Tenant's Obligations: None
(k) Anticipated Delivery Date: May 2005
ARTICLE II.
Premises
Section 2.1. The Landlord hereby leases to the Tenant and the Tenant
hereby leases from the Landlord, upon and subject to the terms and provisions of
this lease, the premises (hereinafter referred to as the "demised premises")
shown on Exhibit "A" hereto annexed and made a part hereof as Georgetown Savings
Bank containing approximately 4,140 square feet of total area and containing
approximately 2,437 square feet of interior floor area, (as may be varied
depending upon the number of approved drive through tellers, not to exceed two),
in the area designated "Eaglewood Shops" on said Exhibit "A". The Eaglewood
Shops includes the shopping center located in the Town of North Andover, County
of Essex, Commonwealth of Massachusetts, the initial boundaries of which are
delineated on said Exhibit "A". For purposes of this lease, the demised premises
shall include the drive through teller areas, driveways and structures as shown
on the attached exhibit "A". Prior to the Commencement Date, the Tenant's
Architect shall measure the premises to determine the actual area of the drive
through, the total area of the interior of the premises and the total combined
area. The interior premises shall be measured from the exterior of the outside
walls and from the center of common demising walls. Subject to Landlord's
consent, these determinations shall be reduced to writing and made an Exhibit to
this original lease and any counterparts. The measurements in said Exhibit shall
control in the determination of the Tenant's share of common area expenses and
additional rent hereunder.
Excepting and reserving to the Landlord the roof and exterior walls of
the building or buildings of which the demised premises are a part; and further
reserving to the Landlord the right to place above the dropped ceiling and/or
below the finished floor in the demised premises (in such manner as to reduce to
a minimum the interference with the Tenant's use of the demised premises)
utility lines, pipes, and the like, to serve premises other than the demised
premises, and to replace and maintain and repair such utility lines, pipes and
the like in, over and upon the demised premises as may have been installed in
said building or buildings. Any such right to install or place utilities and the
like above the ceiling of the demised premises shall take into account Tenant's
requirements and those of its regulators, insurers and consultants regarding the
security of its site as a bank. Except in the case of an emergency, which shall
mean immediate peril of human life or property, in which event Landlord shall
attempt if reasonably possible to give Tenant telephone notice, (Tenant shall
furnish an emergency phone list to Landlord which it shall update as necessary),
any access to said space shall only be on notice to and with the express consent
of the Tenant. The Tenant shall have the right to place such alarms and security
devices in this area as it shall see fit. The Tenant shall not be required to
provide the landlord with any codes or other relevant information in regard to
said security devices, but will cooperate with the landlord to give access on
reasonable request.
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ARTICLE III.
Term of Lease
Section 3.1. TO HAVE AND TO HOLD the demised premises unto the Tenant
for the term specified in Section 1.1(d) hereof, as may be extended, unless
sooner terminated as provided herein.
Section 3.2. The term hereof shall commence on the earlier to occur of
the following dates (the "Commencement Date"): (i) 120 days after delivery of
the Demised Premises by Landlord; or (ii) the date that the Tenant first opens
for business in the demised premises. It shall be a condition of the
Commencement Date that the common areas of the Shopping Center shall be
substantially complete so as to permit Tenant to open its business in the
demised premises. The parties hereto agree, upon demand of the other, to execute
a supplemental instrument expressing the Commencement Date of the term hereof
when the Commencement Date has been determined. Tenant agrees that upon
execution of this Lease, it shall diligently pursue the obtaining of all permits
required for the construction and operation of the demised premises in
accordance with the following schedule:
(a) Tenant shall supply construction drawings, including the Drive
through teller area and related structures for Landlord's
approval no later than March 15, 2005 ;
(b) Landlord shall provide tenant with its written approval or
disapproval of tenant's construction drawings within 10 days.
In the event that the landlord does not approve the drawings
as submitted, the Landlord shall provide the Tenant with a
written explanation of the portions of the drawings that it
does not approve. Any such review shall be at the sole expense
of the Landlord.
(b) Within 10 days following Landlord's approval, Tenant shall
file all documents necessary with the Town of North Andover to
obtain a building permit for the performance of Tenant's work.
In the event that the Tenant discovers any latent defect in the
premises that causes a material delay in Tenant's construction and that is not
of Tenant's creation, Tenant shall be entitled to extend the completion date for
a period of time that the defect causes a delay in Tenant's construction.
The Tenant shall have the right to terminate the provisions of this
lease if the landlord has not delivered the property within twelve months of the
execution of this lease agreement. If the premises are destroyed by fire or
other casualty and are not restored to deliverable condition by a date twelve
months from the date of this lease agreement the tenant shall have a right to
terminate the provisions of this lease. In each case the right to terminate
shall be exercised in writing within 30 days of the date that it accrues and any
such termination shall be without recourse to either party.
Section 3.3. The Tenant, prior to the Commencement Date, shall be
permitted to install fixtures and other equipment, and do other work, provided,
however, that such activities of the Tenant shall not unreasonably interfere
with construction work of the Landlord or the conduct of business or
construction work of other tenants or occupants in the Shopping Center. Should
the Tenant install such fixtures or equipment prior to the commencement date
hereunder nothing contained herein shall create a landlord's lien against said
fixtures or equipment. The Tenant shall be entitled to remove such fixtures or
equipment prior to the Commencement date and the Landlord shall not interfere
with their removal. In connection with the removal of such fixtures and
equipment the Tenant shall repair any damage done to the subject premises.
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Section 3.4. The demised premises shall be deemed to be ready for
occupancy by the Tenant on the date there is sent to the Tenant a certificate by
the Landlord or the Landlord's architect or the Landlord's Representative to the
effect that the Landlord has substantially completed all of the Landlord's work
described in Exhibit "B", hereto annexed and made a part hereof, with respect to
the demised premises, which certificate shall be subject to the reasonable
approval by the Tenant's architect or engineer. "Substantially Completed" as
used in this ARTICLE III being hereby defined to mean completed in such fashion
as to enable the Tenant, upon performance of the work to be done by the Tenant,
to open its facility for business in the normal course.
Section 3.5. Promptly after the demised premises are made ready for
occupancy by the Tenant, the Tenant shall perform at its own cost and expense
all of the Tenant's work set forth in Exhibit "B", hereto annexed and made a
part hereof, shall equip the demised premises with new trade fixtures and all
personal property necessary or proper for the operation of the Tenant's
business, and shall open for business as soon thereafter as possible but in no
event later than the Commencement Date. Except as herein specifically set forth,
in the event the Tenant shall have failed to complete the Tenant's work and to
have opened the demised premises for business on or before the Commencement
Date, then all of the Tenant's charges shall nevertheless commence on the
Commencement Date at the rates specified in this lease, except that from and
after the date that is forty five (45) days after the Commencement Date minimum
rent shall then increase to and be payable at the rate of 1.25 times the monthly
amount of the Tenant's initial minimum rent per day until the Tenant shall open
for business.
ARTICLE IV.
Minimum Rent
Section 4.1. The Tenant covenants and agrees to pay without notice,
demand or offset to the Landlord, at the Landlord's office in Topsfield,
Massachusetts, or at such place as the Landlord shall from time to time
designate in writing, minimum rent for the demised premises at the rate
specified in Section 1.1(f) hereof, and proportionately at such rate for any
partial month, which minimum rent shall be paid monthly, in advance, on the
first day of each and every calendar month during the term hereof, the first
such payment to be made upon the Commencement Date. For and with respect to each
installment of minimum rent that is not paid within ten (10) business days after
the date when due, the Tenant shall pay to the Landlord on demand, as additional
rent, a late charge in an amount equal to five percent (5%) of the past due
amount for the purpose of defraying Landlord's administrative expenses relative
to handling such overdue payment.
ARTICLE V.
Intentionally Omitted
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ARTICLE VI.
Construction
Section 6.1. The Landlord shall construct, at the Landlord's sole cost
and expense, on the site of the Shopping Center, the building in which the
demised premises are to be located, the demised premises to be constructed
substantially in accordance with the specifications set forth in that part of
Exhibit "B" entitled "Description of the Landlord's Work". Said Exhibit "B" is
hereby incorporated herein by reference and made a part hereof with the same
force and effect as if the same were set out herein. Certain details of the
construction of the Shopping Center may change, including the area, height and
number of levels above or below grade, but, subject to other provisions of this
lease. Nothing in Exhibit "A" shall be treated as a representation that any or
all of the buildings for which provision is made thereon shall be constructed,
or that such buildings will be located, precisely within the areas shown on
Exhibit "A", or that such buildings will be of the dimensions or shapes shown,
it being the intention of Exhibit "A" only generally to show diagrammatically,
rather than precisely, the possible development of the Shopping Center as
presently contemplated.
Notwithstanding the provisions of the aforegoing paragraph, the
Landlord represents to the Tenant that the buildings shall conform substantially
to the representation as contained in "Exhibit A". No variation from Exhibit A
shall materially affect the access to or the visibility of the Demised Premises.
ARTICLE VII.
Additional Rent - Taxes
Section 7.1. The term "Taxes" is hereby defined to mean all general and
special taxes, including existing and future assessments for road, sewer,
utility and other local improvements and other governmental charges which may be
lawfully charged, assessed, or imposed upon all or any portion of the Landlord's
Tract (which term shall mean the entire Shopping Center on both land and any or
all improvements contained therein.) Nothing contained herein shall be construed
to include as "Taxes" any income, inheritance, estate, succession, transfer,
gift, franchise, corporation, net profit tax, or capital levy or any other tax
that is measured exclusively in any manner by the income or profit of the
Landlord The Landlord shall pay, or cause to be paid, before the same become
delinquent, all Taxes, provided however, that if authorities having jurisdiction
assess Taxes on the Landlord's Tract and/or the improvements contained therein
which the Landlord deems excessive, the Landlord may defer compliance therewith
to the extent permitted by the laws of The Commonwealth of Massachusetts so long
as the validity or amount thereof is contested by the Landlord in good faith and
so long as the Tenant's occupancy of the demised premises is not disturbed or
threatened.
Section 7.2. The Tenant shall pay all taxes which may be lawfully
charged, assessed, or imposed upon all fixtures and equipment of every type and
also upon all personal property in the demised premises, and the Tenant shall
pay all license fees and other charges which may lawfully be imposed upon the
business of the Tenant conducted upon the demised premises.
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Section 7.3. The Tenant shall, during the term of this lease, pay to
the Landlord that portion of the Taxes (as defined in Section 7.1 hereof) as
shall result from multiplying the same by a fraction, the numerator of which is
the total square footage of floor area of the interior portion of the demised
premises and the denominator of which is the total square footage of leased (but
not less than eighty percent (80%) of the total square footage of leasable)
floor area of all buildings located on the Landlord's Tract as of the first day
of each applicable tax year during the term hereof; provided, however, if any
buildings located on the Landlord's Tract (and any land appurtenant thereto) are
now or hereafter separately owned or assessed, then, at the Landlord's option,
the taxes and assessments relating thereto shall be deemed not to be "Taxes"
hereunder, and in such event, there shall be excluded from the denominator of
such fraction the floor area of such separately owned or assessed building(s).
There shall also be excluded from the denominator of such fraction (i) the floor
area of non-selling mezzanines (if any), malls if any, passageways, service
corridors, shopping center offices, shopping center storage areas, utility
rooms, sprinkler rooms, governmental offices, and other non-selling areas.
The Tenant's fractional share of Taxes shall be equitably adjusted for
and with respect to the first and last partial tax years (if any) of the term of
this lease. Where the applicable tax bills and computations are not available
prior to the end of the term hereof, then a tentative computation shall be made
on the basis of the previous year's Taxes payable by the Tenant, with a final
adjustment to be made between the Landlord and the Tenant promptly after all
bills and computations are available for such period. In connection with any
such abatement or refund the Tenant shall be provided with all relevant
documents by the Landlord, including, but not limited to, copies of the relevant
tax bills.
The Tenant's pro rata share of Taxes shall be due and payable within
ten (10) days after receipt by the Tenant of the Landlord's invoice. However,
the Tenant shall make monthly tax deposits with the Landlord (along with
payments of minimum rent) in an amount equal to one-twelfth (1/12th) of the
Tenant's annual pro rata share of Taxes, with a final adjustment to be made
between the parties as soon as said pro rata share has been determined and the
Tenant is provided with copies of the relevant tax bills an disclosure of the
Landlord's computations. The initial amount of such tax deposits shall be as
reasonably estimated by the Landlord; but thereafter, the monthly tax deposits
shall be predicated upon the last previous full year's share of Taxes payable by
the Tenant.
In every case, Taxes shall be adjusted to take into account any
abatement or refund thereof paid to the Landlord, less all of the Landlord's
reasonable costs of securing such abatement or refund (the Landlord having the
sole right to contest Taxes). If Landlord shall elect to contest such Taxes,
Landlord shall be entitled to xxxx Tenant for its said pro rata share of the
reasonable costs and expenses thus incurred by Landlord as and when the same are
incurred, and the same shall constitute part of such Taxes. To the extent that
Landlord has so billed and received from Tenant payment of such costs and
expenses, the same shall not be deducted as aforesaid from the abatement or
refund, if any, ultimately received with respect thereto.
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Section 7.4. In an attempt to reduce the potential tax burden on the
Shopping Center by controlling costs for off-site improvements which are
required by governmental authorities for the initial development of the Shopping
Center (for example: highway improvements, sewer and water facilities, park
improvements), Landlord may agree with such governmental authorities to be
responsible for the construction of such off-site improvements. The Landlord
shall disclose the existence of any such proposed improvements and the estimated
or actual cost of same prior to the execution of this Lease. In such case upon
notice from Landlord, Tenant shall pay to Landlord, as additional rent and in
substitution, in whole or in part, for any special district real estate taxes or
betterment assessment relating to such improvements which could otherwise be
imposed against the Shopping Center if such improvements were constructed under
governmental responsibility, an annual charge representing Tenant's pro rata
share of the amortized cost of such facilities. Landlord agrees, however, that
the costs of such facilities shall be capitalized or expensed in the same manner
as such costs are capitalized or expensed in the Landlord's tax return for the
applicable year and the Tenant's liability with respect to such improvements
shall accrue only during the term of this lease and not during any period before
or after same. Tenant's pro rata share of such costs shall be computed in the
same manner as used to compute Tenant's pro rata share of real property taxes as
provided in Section 7.3 above. This annual charge shall be paid by Tenant in
equal monthly installments, in advance, on the first day of each calendar month
during the term of this lease. In connection with any such assessment the Tenant
shall be entitled to any and all relevant documents including the actual
contracts, bills or invoices related to the required improvement and supporting
documentation disclosing the computation of the capitalization or expensing of
the cost of the facility.
Section 7.5. The foregoing provisions of this ARTICLE VII are
predicated upon the present system of taxation in The Commonwealth of
Massachusetts. Should any governmental authority having jurisdiction over all or
any portion of the Shopping Center impose a tax and/or assessment of any kind or
nature upon, against, measured by or with respect to the rentals payable by
tenants in the Shopping Center to the Landlord or with respect to the ownership
of the land and buildings comprising the Shopping Center by the Landlord (or any
individual or entity forming the Landlord), either by way of substitution for
all or any part of the present ad valorem real estate taxes or in addition
thereto, then such tax and/or assessment shall be deemed to constitute "Taxes"
for the purposes of this lease and the Tenant shall be obligated to pay its
proportionate share thereof as set forth in Section 7.3 hereof. Further, if
there is any other change in the system of taxation (other than as set out
immediately above) which is in substitution of or in addition to the present
system, the Tenant shall be responsible for its fair and equitable share
thereof, taking into account the proportions provided for in this ARTICLE VII so
long as such tax is not measured exclusively by the income or profit of the
Landlord.
ARTICLE VIII.
Maintenance of
Common Areas; and the Tenant's Contribution
Section 8.1. The Landlord shall cause all existing parking facilities
in the Shopping Center, including lighting thereof, to be maintained in good
repair and clean condition at all times during the term of this lease.
Accumulations of snow will be cleared from said parking areas and will be
deposited or stockpiled in such locations as are reasonably feasible so as to
permit adequate use of the parking areas. Landlord may at any time close
temporarily the common areas (including, without limitation, the parking
facilities and roadways) or any portion thereof to make repairs or changes to
prevent the acquisition of public rights therein, or to discourage non customer
parking, and may do such other acts in and to the common areas as in its
judgment may be desirable to improve the convenience thereof. Landlord agrees
that it shall use reasonable efforts to avoid closing parking areas during
normal business hours and to provide the Tenant with reasonable advance notice
of any such closing.
The Landlord agrees that the Tenant may during the term hereof, with
others, have the non-exclusive right to use the parking facilities of the
Shopping Center for the accommodation and parking of such automobiles of the
Tenant, its officers, agents and employees, and its customers while shopping in
the Shopping Center.
The Tenant agrees to instruct its officers, agents, employees,
contractors and others under its direct control to park in areas reasonably
agreed upon between Landlord and Tenant. The Tenant shall have a right to object
to any designated area which is located an unreasonable distance from the
demised premises or which shall cause the Tenant's employees to be exposed to
unreasonable risk to their person or property. Nothing contained herein shall
require Tenant to so instruct those under its control if such instruction would
violate the provisions of the ADA or any other law which requires the Tenant to
make reasonable accommodation to the identified parties.
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The Tenant shall furnish to the Landlord, within five (5) days
following the request of the Landlord therefor, the automobile license numbers
of the vehicles customarily used by the Tenant and the Tenant's officers,
agents, employees, contractors, licensees and concessionaires. If the Tenant or
any officer, agent, employee, contractor, licensee or concessionaire of the
Tenant shall park his or her car other than in designated employee parking
areas, the Landlord shall have the right and privilege to have any such car
towed away at the Tenant's expense. Landlord agrees to enforce the provisions of
this Section 8.1 in a non-discriminatory manner. In the event that the Landlord
intends to tow any motor vehicle which it knows to belong to a customer, agent
or employee of the Tenant it shall on each occasion, first notify the Tenant of
its intention to tow the motor vehicle and allow the Tenant reasonable time to
have the vehicle moved. In the event that the motor vehicle poses an immediate
threat to public safety, the Landlord shall have no obligation to so inform the
Tenant.
Section 8.2. All costs and expenses of every kind and nature paid or
incurred by the Landlord in cleaning, operating, managing, equipping,
decorating, policing (if and to the extent provided by the Landlord), lighting,
repairing, replacing and maintaining all parking facilities serving the Shopping
Center (including, without limitation, any parking structure now or hereafter
installed in the Shopping Center for the common use of customers and/or
employees of the Shopping Center), enclosed malls, if any, and walkways
(including, without limitation, the heating and air conditioning thereof),
utilities and facilities serving and/or required to be maintained or improved
(or whose maintenance or improvement is required to be contributed to) by the
Shopping Center (including, without limitation, off-site utilities and
facilities and improvements such as retention areas, drainage facilities,
parking facilities, roadways and traffic or park improvements, and all taxes,
assessments, costs and other expenses related thereto), the cost of operating
and maintaining any septic or sewer system, the costs of maintaining and
repairing the sprinkler systems and all other areas of the Shopping Center
(including, but without limitation, all landscaping and gardening) shall be
prorated, and the Tenant shall share therein in the manner hereinafter provided.
Such costs and expenses shall likewise include (but shall not be limited to)
water and sewer charges; utility system installation charges and assessments;
costs of all roof and other maintenance, repairs and replacements performed by
the Landlord; costs of the installation, operation, maintenance, repair and
replacement of any energy management system; costs of the operation,
maintenance, repair and replacement of any escalators and elevators, if any;
premiums for liability, property damage, fire, workers' compensation, and other
insurance (including, without limitation, all insurance, hazard, rent and
otherwise, from time to time carried by the Landlord on any or all structures on
the Shopping Center); wages, unemployment taxes, social security taxes, and
personal property taxes and assessments; fees for required licenses and permits
if directly related to the operation of the Shopping Center; supplies, operation
of loudspeakers and any other equipment supplying music to the common areas if
contiguous to the demised premises; reasonable depreciation of equipment
supplying music to the common areas; reasonable depreciation of equipment used
in the operation of the common areas; and administrative costs equal to fifteen
percent (15%) of the total costs of operating and maintaining the common areas
(except appropriate reserves maintained by the Landlord); any such costs and
expenses whether paid or incurred prior or subsequent to the execution of this
lease, which Landlord has elected to amortize over a period of years shall be
included, until such cost or expense has been fully recovered, in the expenses
to be prorated pursuant to this Section 8.2; but there shall be excluded
depreciation of the original cost of constructing said buildings, parking
facilities, enclosed malls, and other common areas. With respect to those common
area charges which are required to be amortized over a period of years by either
Generally accepted Accounting Principles or the Internal Revenue Code as set
forth above in this Section 8.2, Landlord may add to such charges an interest
charge on the then unamortized balance thereof from time to time at the then
prevailing prime or "base" rate of Fleet Bank. However, if Landlord does so,
then: (a) if the expenditure in question is the purchase of that which may be
termed a "capital asset" for which Landlord actually borrows the sums necessary
to make the purchase, then Landlord actually borrows the sums necessary to make
the purchase, then Landlord may only add to such proratable charges an interest
charge at the lesser of (i) said then prevailing "base" rate, or (ii) the
interest rate actually paid by Landlord; and (b) in any event, the 15%
administrative charge shall not be added to such interest charge.
Notwithstanding the foregoing, the following items shall be excluded
from such costs and expenses
(a) Leasing commissions;
(b) Any ground lease rental;
(c) Costs incurred by Landlord for the repair of damage to the Shopping
Center to the extent that Landlord is reimbursed by insurance proceeds;
(d) Costs, including permit, license and inspection costs, incurred
with respect to the installation of Tenant improvements made for tenants of the
Shopping Center or incurred in renovating or otherwise improving, decorating,
painting or redecorating vacant space for tenants or other occupants of the
Shopping Center;
(e) Attorney fees and other costs and expenses incurred in connection
with negotiations or disputes with present or prospective tenants or other
occupants of the Shopping Center;
(f) Expenses in connection with services or other benefits, which are
not available to Tenant;
(g) Costs incurred by Landlord due to the violation by Landlord or any
tenants of the terms and conditions of any lease for premises in the Shopping
Center;
(h) Overhead and profit paid to Landlord or to subsidiaries or
affiliates of Landlord for services in the Shopping Center to the extent the
same exceed the cost of such services rendered by other first-class unaffiliated
parties on a competitive basis, but not excluding the 15% administrative charge
set forth above;
(i) Interest, principal, points and fees on debts or any mortgage or
mortgages encumbering the Shopping Center or the real property upon which the
Shopping Center is located;
(j) Landlord's general corporate overhead and general and
administrative expenses other than onsite administrative costs and management
fees, but not excluding the 15% administrative charge set forth above;
(k) Any compensation paid to the clerk, attendants or other persons in
commercial concessions operated by Landlord;
(l) Advertising and promotional expenditures in connection with leasing
the Shopping Center;
(m) Any costs incurred in remediating Hazardous Wastes not resulting
from actions of the tenants of the Shopping Center or their agents, servants,
employees, contractors or customers; and
(n) Major structural renovations or additions to the Shopping Center
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The Tenant agrees to pay to the Landlord its pro rata share of the
costs and expenses incurred by Landlord with respect to the common areas of the
Shopping Center, including, without limitation, the costs and expenses set forth
in this Section 8.2, which pro rata share shall be computed by multiplying the
whole of said costs and expenses by a fraction, the numerator of which is the
total square footage of the interior floor area of the demised premises as
certified pursuant to Section 2.1 herein and the denominator of which is the
total square footage of leased (but not less than eighty percent (80%) of total
square footage of leasable) floor area of all buildings located on the
Landlord's Tract, as of the first day of the calendar year to which such costs
and expenses relate. There shall be excluded from the denominator of such
fraction (i) the floor area of non-selling mezzanines (if any), malls, if any,
passageways, service corridors, shopping center offices, shopping center storage
areas, utility rooms, sprinkler rooms, governmental offices, and other
non-selling areas. Landlord agrees that the common area costs and expenses
payable by Tenant under this Section 8.2 shall not include any costs or expenses
reimbursed by Tenant under any other provision of this lease.
The Tenant's share shall be paid in monthly installments, in the amount
estimated from time to time by the Landlord, on the first day of each and every
calendar month, in advance. Within ninety (90) days after the end of each full
calendar year during the term hereof, the Landlord shall furnish to the Tenant a
statement in reasonable detail setting forth the computation of such total costs
and expenses; thereupon there shall be a prompt adjustment between the Landlord
and the Tenant, with payment to, or repayment by, the Landlord, as the case may
require, to the end that the Landlord shall receive the entire amount of the
Tenant's pro rata share of said costs and expenses, computed as aforesaid, and
no more.
The Tenant and its Consultants shall have the right to inspect the
books and records of the Landlord on thirty days written notice to verify the
calculation and assessment of the Landlord for Common Area charges for the
previous two calendar years. Any such inspection shall be at the sole cost and
expense of the Tenant and shall occur at the offices of the Landlord. The
Landlord shall not charge the Tenant for its time in making such books available
to the Tenant. If after such inspection the Tenant determines that it has
overpaid or underpaid the Landlord it shall so inform the Landlord in writing.
The Landlord shall acknowledge the overpayment or underpayment (which
acknowledgment shall not be unreasonably withheld) and refund the overpaid
amount to the Tenant or Tenant shall pay Landlord the underpaid amount, within
thirty days of the notification.
Anything in this lease to the contrary notwithstanding, it is expressly
understood and agreed that the designation or use from time to time of portions
of the Shopping Center as common areas shall not restrict the Landlord's use of
such areas for buildings, structures and/or for retail or such other purposes as
the Landlord shall determine, including, without limitation, the expansion or
remodeling of the Shopping Center to include one or more additional stores, (on
the present and/or additional levels), the Landlord hereby reserving the
unrestricted right to build, add to, subtract from, lease, license, relocate
and/or otherwise use (temporarily and/or permanently) any buildings, kiosks,
other structures, parking areas, roadways or other areas or facilities anywhere
upon the Shopping Center for retail or such other purposes as the Landlord shall
determine provided, however, that the Landlord's exercise of any of the
aforesaid rights shall not materially or adversely interfere with Tenant's
business operations or access to, and shall not materially impair the visibility
of the demised premises as compared with the conditions existing prior to the
Landlord's exercise of such rights.
9
ARTICLE IX.
Utilities
Section 9.1. The Tenant shall pay for all of its requirements for
utilities, including, but not limited to, gas, steam, water, electricity, sewer
charges, and the like, including all utilities necessary for heating and air
conditioning its demised premises (including the Tenant's pro-rata share,
computed in accordance with Section 8.2 hereof, of any premium or guaranteed
payment assessed by any utility company against the Shopping Center). In the
event that the Landlord shall elect to supply any other utilities, then, insofar
as and to the extent that such is permitted pursuant to applicable law and the
regulations of the applicable utility company, the Tenant agrees to purchase the
same from the Landlord, provided the rate does not exceed the rate which the
Tenant would be required to pay to the utility company furnishing the same to
the Shopping Center. Further, the Tenant shall pay for all utilities consumed on
the demised premises from the date of delivery of possession thereof by the
Landlord to the Tenant to the Commencement Date.
10
ARTICLE X.
Use of Premises
Section 10.1. It is understood, and the Tenant so agrees, that the
demised premises during the term of this lease shall be used and occupied by the
Tenant only for the purposes specified as the use thereof in Section 1.1(h) of
this lease, and for no other purpose or purposes.
Section 10.2. The Tenant further agrees to conform to all of the
following provisions during the entire term of this lease:
(a) The Tenant shall conduct its operations in the demised
premises under the trade name "Georgetown Savings Bank" . In
the event that the Tenant shall change its trade name or its
trade name shall change due to the merger or acquisition of
the Tenant by another entity it shall so inform the landlord
and request approval. The Landlord shall not unreasonably
withhold approval of any name change requested by the Tenant.
(b) No sales or promotions may be conducted within the demised
premises other than in the normal course of the Tenant's
continuing business operations therein. Without limiting the
generality of the foregoing, no auction, fire, bankruptcy,
"lost our lease" or going out of business sales (or the like,
howsoever denominated) may be conducted within the demised
premises.
(c) The Tenant shall not use any area outside of the demised
premises, including, without limitation, the malls or
sidewalks adjacent to the demised premises or the recessed
vestibules, if any, of the demised premises for business
purposes (including, without limitation, the sale or display
of merchandise or the distribution of handbills or advertising
of any type).
(d) The Tenant shall keep the display windows of the demised
premises reasonably clean and shall keep the same electrically
lighted during such periods of time as the shopping center
shall be open and, in addition, during such other periods of
time as shall be determined by the Landlord, provided windows
throughout a majority of the shopping center are kept lighted
during such additional periods.
(e) The Tenant shall receive and deliver goods and merchandise
only in the manner, at such times, and in such areas, as may
be reasonably designated by the Landlord; (Tenant shall not
receive deliveries after 11:00 PM or before 6:00 AM.),and all
trash, refuse, and the like, shall be kept in covered trash
receptacles, which trash receptacles shall be kept within the
demised premises at all times, and in no event stored outside
of the same without Landlord's consent. All trash, refuse and
the like shall be separated and otherwise disposed of as
required by applicable law. If provision is made by the
Landlord for trash removal by a contractor, the Tenant agrees
to use said contractor for its trash removal and to pay when
due all charges at the rate established therefor from time to
time. If the Tenant fails so to pay for trash removal, the
Landlord shall have the same remedies (even if such payment is
due to such contractor and not to the Landlord) as the
Landlord has for nonpayment of rent hereunder.
11
(f) The Tenant shall not place on the exterior of the demised
premises (including, but without limitation, windows, doors,
and entrance lobbies) any signs other than those signs
(including the design, number and locations of such signs and
any replacements thereof) which shall first have been approved
by the Landlord. The signs desired by the Tenant shall be
indicated in the Tenant's plans and specifications to be
submitted to the Landlord for approval; all interior signs
must be professionally prepared. Subject to Landlord's
consent, which consent shall not be unreasonably withheld,
delayed or conditioned, Tenant shall be permitted to install
the maximum allowable storefront signage as permitted under
the Town of North Andover by laws.
(g) The Tenant shall not perform any act or carry on any practice
which may materially injure the demised premises or any other
part of the Shopping Center, or cause any offensive odor or
loud noise (including, but without limitation, the use of
loudspeakers), or constitute a nuisance or menace to any other
occupant or other persons in the Shopping Center, and in no
event shall any noises or odors be emitted from the demised
premises.
(h) The demised premises (as well as all doors and entryways
thereto) shall be kept open for business at least during the
following: (i) seven (7) hours per day, five (5) days a week
and on Saturdays at least three (3) hours per day. The Tenant
acknowledges that this obligation is a material inducement to
the Landlord to enter into this lease, and in the event the
Tenant defaults hereunder the Landlord shall have all remedies
available at law or in equity including, without limitation,
the right to terminate this lease.
(i) The Tenant agrees that it and its employees and others
connected with the Tenant's operations at the demised premises
will abide by all reasonable rules and regulations from time
to time established by the Landlord by written notice to the
Tenant with respect to such Shopping Center, provided that
such rules and regulations are enforced in a nondiscriminatory
fashion (except where differing circumstances justify
different treatment).
(j) The Tenant shall employ throughout the term of this lease a
reasonably full staff in the demised premises in order to
properly conduct business, including a qualified bank branch
manager or assistant bank branch manager headquartered and
working full-time at the demised premises to manage and
control the operations of the demised premises. The Tenant
shall furnish the Landlord's shopping center manager with the
name, address and telephone number of such bank branch manager
or assistant branch manager of the demised premises, so that
the Landlord will, at all times, be able to contact the bank
branch manager or assistant branch manager of the demised
premises.
(k) The Tenant shall not use, handle or store or dispose of any
oil, hazardous or toxic materials or hazardous or toxic wastes
(collectively, "hazardous materials") in or about the Shopping
Center. If the transportation, storage, use or disposal of any
hazardous materials anywhere on the Shopping Center in
connection with the Tenant's use of the demised premises
results in (1) contamination of the soil or surface or ground
water or (2) loss or damage to person(s) or property, then
Tenant agrees to respond in accordance with the following
paragraph:
Tenant agrees (i) to notify Landlord immediately of
any contamination, claim of contamination, loss or
damage, (ii) after consultation and approval by
Landlord, to clean up the contamination in full
compliance with all applicable statutes, regulations
and standards, and (iii) to indemnify, defend and
hold Landlord harmless from and against any claims,
suits, causes of action, costs and fees, including
attorneys' fees, arising from or connected with any
such contamination, claim of contamination, loss or
damage. This provision shall survive the termination
of this lease. No consent or approval of Landlord
shall in any way be construed as imposing upon
Landlord any liability for the means, methods, or
manner of removal, containment or other compliance
with applicable law for and with respect to the
foregoing.
12
Tenant shall immediately notify Landlord upon Tenant's receipt
of any inquiry, notice, or threat to give notice by any
governmental authority or any other third party with respect
to any hazardous materials.
(l) Tenant agrees that, within the demised premises, it shall be
responsible for compliance with the Americans with
Disabilities Act (42 U.S.C. ss. 12100 et. seq.) and the
regulations and Accessibility Guidelines for Buildings and
Facilities issued pursuant thereto.
Section 10.3. Notwithstanding any other provisions of this lease, the
Tenant covenants and agrees that it will not assign this lease or sublet (which
term, without limitation, shall include the granting of concessions, licenses,
and the like) the whole or any part of the demised premises without in each
instance having first received the express written consent of the Landlord,
which consent shall not be unreasonably withheld, delayed or conditioned.
In the event the Tenant seeks the Landlord's consent pursuant to this
Section 10.3, the Tenant shall furnish the Landlord with such information
regarding the prospective assignee or sublessee as the Landlord may require,
including without limitation information regarding financial ability and
business experience relating to the uses permitted hereunder. In any case where
the Landlord shall consent to such assignment or subletting, the Tenant named
herein shall remain fully liable for the obligations of the Tenant hereunder,
including, without limitation, the obligation to pay the rent and other amounts
provided under this lease. The provisions of this Section 10.3 shall not,
however, be applicable to an assignment of this Lease by the Tenant to its
wholly owned subsidiary or immediate controlling corporation (for such period of
time as such corporation remains such a subsidiary or such a controlling
corporation, respectively, it being agreed that the subsequent sale or transfer
of stock resulting in a change in voting control, or any other transaction(s)
having the overall effect that such corporation ceases to be such a subsidiary
or such a controlling corporation, respectively, of the Tenant, shall be treated
as if such sale or transfer or transaction(s) were, for all purposes, an
assignment of this lease governed by the provisions of this Section 10.3),
provided (and it shall be a condition of the validity of any such assignment)
that such wholly owned subsidiary or such immediate controlling corporation
first agrees directly with the Landlord to be bound by all of the obligations of
the Tenant hereunder, including, without limitation, the obligation to pay the
rent and other amounts provided for under this lease, the covenant to use the
demised premises only for the purposes specifically permitted under this lease
and the covenant against further assignment; but such assignment shall not
relieve the Tenant herein named of any of its obligations hereunder, and the
Tenant shall remain fully liable therefor.
For the purposes of this lease, the entering into of any management
agreement or any agreement in the nature thereof transferring control or any
substantial percentage of the profits and losses from the business operations of
the Tenant in the demised premises to a person or entity other than the Tenant,
or otherwise having substantially the same effect, shall be treated for all
purposes as an assignment of this lease and shall be governed by the provisions
of this Section 10.3. In addition, for the purposes of this lease, the sale or
transfer (which term shall include, without limitation, the exchange, issuance
and redemption) of forty-nine percent (49%) or more, or such smaller percentage
as would result in a change in the voting control, of the voting stock of the
Tenant (if the Tenant is a corporation), the voting stock of any corporate
guarantor of the Tenant (whether or not specified in Section 1.1(m) hereof), or
the voting stock of any immediate or remote controlling corporation of the
Tenant shall be treated as if such sale or transfer or transaction(s) were, for
all purposes, an assignment of this lease and shall be governed by the
provisions of this Section 10.3; provided, however, that the provisions of this
sentence shall not apply to the transaction by which Tenant becomes, or to the
trading of Tenant's voting stock while Tenant remains, a so-called reporting
public corporation under the provisions of the Securities Exchange Act of 1934,
as amended, the outstanding voting stock of which is registered in accordance
with the provisions of the Securities Act of 1933, as amended, and actively
trading on the New York Stock Exchange or another recognized, national
securities exchange (and for the purposes hereof, the term "voting stock" shall
refer to shares of stock regularly entitled to vote for the election of
directors of the corporation). In addition to the foregoing, Landlord's consent
shall not be required with regard to, and Landlord may not elect to terminate
this lease solely as a result of, any transfer of any shares of stock between
and among the current shareholders of Tenant and their families by gift, bequest
or inheritance to those persons or to any trust for their benefit.
13
In the event the Tenant assigns this lease (which term shall include
the entering into of any management or similar control transferring agreement,
and also shall include the sale or transfer of stock or a change in control, as
aforesaid) or sublets the whole or any part of the demised premises (other than
as expressly herein permitted or with the Landlord's prior written consent), in
addition to and without limiting any of the Landlord's rights and remedies on
account of the resulting default hereunder by the Tenant, the Landlord shall
have the right, without regard to whether the Landlord's withholding its consent
to such assignment or subletting would be construed to be unreasonable, to
terminate this lease by giving the Tenant notice of the Landlord's desire so to
do, in which event this lease shall terminate on the date specified by the
Landlord in such notice all as if such date were the date specified in Section
1.1(d) hereof as the Expiration Date. In the event of any assignment or
subletting (other than as expressly hereinabove permitted to a wholly owned
subsidiary or immediate controlling corporation of the Tenant or with the
Landlord's prior written consent), the minimum rent shall be adjusted for the
balance of the term of this lease such that the minimum rent payable hereunder
shall thereafter be equal to the sum of (i) the greater of (a) the annual
minimum rent specified in Section 1.1(f) of this lease and (b) the annual
minimum rent payable pursuant to such assignment or sublease, and, in addition,
any lump sum or installment payments for the leasehold payable by such assignee
or sublessee shall be payable directly to the Landlord and not to the Tenant.
ARTICLE XI.
Other Banks
Section 11.1. The Tenant covenants and agrees (insofar as and to the
extent that it is lawful so to agree) that for the period commencing with the
execution of this lease and continuing for any an all option terms or extensions
of this lease, none of the Tenant, any partner in the Tenant, any of their
affiliated, parent or subsidiary companies, or any franchisee or licensee of any
of them, will operate, either directly or indirectly, another Savings Bank using
the same or a similar trade name to that under which the demised premises are
then being operated or selling primarily those items or conduction the same or
similar services as permitted hereunder to be sold from the demised premises
(including a department or concession in another store) of any kind, nature or
description within a reasonable area of the demised premises, without the prior
written consent of the Landlord, the Tenant acknowledging that the area within a
circle having as its center the demised premises and having a radius of one (1)
mile is a reasonable area for this purpose.
14
ARTICLE XII.
Maintenance of Building, Etc.
Section 12.1. The Landlord agrees to keep in good order, condition, and
repair the roof, but not the roof of the drive through teller constructed by the
Tenant or the drive through teller area shown on the attached exhibit "A",
exterior portions of exterior walls, foundations and structural portions of the
demised premises and the plumbing, electrical and mechanical systems serving the
demised premises and located outside the demised premises to the extent, but
only to the extent, originally constructed by the Landlord (except glass and
glass windows and doors and the so-called store front, irrespective of which
party installed the same), except for any damage thereto caused by any act or
negligence of the Tenant, its employees, agents, licensees, or contractors. The
Landlord shall not be responsible to make any other improvements or repairs of
any kind upon the demised premises, except as provided in ARTICLES XVI and XVII
hereof.
Section 12.2. Except as specifically herein otherwise provided, the
Tenant agrees that from and after the date that possession of the demised
premises is delivered to the Tenant, and continuously thereafter until the end
of the term hereof, it will keep reasonably neat and clean and maintain in
reasonably good order, condition and repair, the demised premises and every part
thereof, including, without limitation, the store front and the exterior and
interior portions of all doors, windows, plate glass and showcases surrounding
the demised premises, the drive through teller(s), the driveway and area of the
drive through teller as shown on Exhibit A and included as part of the demised
premises for purposes of maintenance and insurance, ( Tenant's duty shall
include the obligation to use reasonable efforts to remove snow and ice from the
drive through teller area), the roof and roof structure over the drive through
teller(s), all plumbing and sewage facilities within the demised premises,
fixtures and interior walls, floors, ceilings, signs (including exterior signs
where permitted), and all wiring, electrical systems, interior building
appliances, HVAC systems and equipment, and similar equipment. With respect to
the HVAC system and equipment, the Tenant specifically agrees to maintain at all
times during the term of this lease the usual service contract with respect
thereto, furnishing evidence thereof (including renewals) to the Landlord. The
Tenant shall, at the Tenant's expense, repaint, refurbish, and remodel the
demised premises and any part and portion thereof from time to time to assure
that the same are kept in a reasonable, first-class, tenantable, and attractive
condition throughout the term of this lease. There is excepted from this
paragraph, however, such damage as the Landlord is required to repair pursuant
to ARTICLE XVI hereof. The Tenant further agrees that the demised premises shall
be kept in a reasonably clean, sanitary and safe condition in accordance and
shall in all respects comply with the laws of The Commonwealth of Massachusetts
and ordinances of the Town of North Andover and in accordance with all
directions, rules, and regulations of the Health Officer, Fire Marshal, Building
Inspector, and other proper officers of the governmental agencies having
jurisdiction thereover. The Tenant shall not permit or commit any waste.
15
Section 12.3. The Tenant shall not make any alterations, improvements
and/or additions to the demised premises (except as initially required by the
terms of ARTICLE VI of this lease) without first obtaining, in each instance,
the written consent of the Landlord, which consent shall not be unreasonably
withheld except that landlord may withhold its consent at its sole discretion as
to any work that may affect the structural elements of the Shopping Center, any
mechanical or utility systems serving the Shopping Center or any portion
thereof, of the storefront of the demised premises, and in any event any such
alterations by the Tenant shall be made in accordance with all applicable laws
and in a good and first-class, workmanlike manner and in accordance with this
lease, including the provisions of Exhibit "B". Notwithstanding the foregoing,
the Tenant may make non-structural alterations to the interior thereof but not
affecting the storefront or any mechanical or utility systems and costing no
more than Twenty Thousand and 00/100 Dollars ($20,000.00), provided that Tenant
shall first give written notice to Landlord specifying the proposed
alternations, the commencement and approximate completion dates thereof. Any and
all alterations, additions, improvements, and fixtures which may be made or
installed by either the Landlord or the Tenant upon the demised premises and
which in any manner are attached to the floors, walls or, above the dropped
ceiling, or below the finished floor, (plumbing, heating, ventilating and/or
air-conditioning systems and equipment) shall remain upon the demised premises,
and at the termination of this lease shall be surrendered with the demised
premises as a part thereof without disturbance, molestation or injury. However,
the usual trade fixtures and furniture which may be installed in the demised
premises prior to or during the term hereof at the cost of the Tenant may be
removed by the Tenant from the demised premises upon the termination of this
lease if, but only if, the Tenant is not then in default hereunder. Further, the
Tenant covenants and agrees, at its own cost and expense, to repair any and all
damage to the demised premises resulting from or caused by such removal. In no
event shall the Tenant be entitled to remove any electrical (including light
fixtures and bulbs other than track lighting fixtures), plumbing, heating,
ventilating, or air conditioning systems, equipment or other components; and, in
any event, any trade fixtures, equipment, furniture and other personal property
which remain in the demised premises following the expiration or earlier
termination of the term hereof, at the Landlord's option, may thereafter be
removed and stored at the cost of the Tenant, or retained as the property of the
Landlord, or sold or otherwise disposed of by the Landlord, in any such case
without any liability to or recourse by the Tenant or anyone claiming by,
through or under the Tenant.
ARTICLE XIII.
Indemnity and Public Liability Insurance
Section 13.1. The Tenant agrees to indemnify and save harmless the
Landlord and the Landlord's managing agent from and against all claims of
whatever nature arising from any act, omission or negligence of the Tenant, or
the Tenant's contractors, licensees, agents, servants, or employees, or arising
from any accident, injury, or damage whatsoever caused to any person, or to the
property of any person, or from any violation, or ordinance concerning trash,
hazardous materials, or other pollutant occurring from and after the date that
possession of the demised premises is delivered to the Tenant and until the end
of the term hereof in or about the Tenant's demised premises including the drive
through teller area shown on the attached Exhibit "A", or arising from any
accident, injury or damage occurring outside of the demised premises but within
the Shopping Center, where such accident, damage or injury results or is claimed
to have resulted from an act or omission on the part of the Tenant or the
Tenant's agents or employees if in the course of their employment, unless such
accident, damage or injury results or is proven in a legal proceeding to have
resulted from any act, omission or negligence on the part of the Landlord or the
Landlord's contractors, licensees, agents, servants or employees. This indemnity
and hold harmless agreement shall include indemnity against all costs, expenses
and liabilities incurred in or in connection with any such claim or proceeding
brought thereon, and the defense thereof. The Landlord agrees to indemnify and
save harmless the Tenant from and against all claims arising from any accidents,
injury or damage occurring in the common areas of the Shopping Center caused to
any person, or to the property of any person resulting from any act, omission or
negligence of the Landlord, of the Landlord's contractors, licensees, agents,
servants or employees if in the course of their employment, from and after the
date that possession of the demised premises is delivered to Tenant and until
the end of the terms hereof, unless such accident, damage or injury results or
is proven in a legal proceeding to have resulted from any act, omission or
negligence on the part of the Tenant or the Tenant's contractors, licensees,
agents, servants or employees. This indemnity and hold harmless agreement shall
include indemnity against all costs, expenses, and liabilities incurred in or in
connection with any such claims or proceeding brought thereon, and the defense
thereof.
16
Section 13.2. In addition to the insurance required to be maintained by
the Tenant pursuant to Exhibit "B", the Tenant agrees to maintain in full force
during the term hereof a broad form policy of comprehensive general liability
and property damage insurance (without any so-called employee exclusion or the
like) with an insurance company duly licensed to do business in The Commonwealth
of Massachusetts that has a fully-capitalized guaranty fund covering those
individuals and entities that it insures that reside, are situated or do
business in The Commonwealth of Massachusetts under which the Landlord and its
Management Agent (and such other persons as are in privity of estate with the
Landlord as may be set out in notice from time to time) is named additional
insured and the Tenant is named primary insured, and under which the insurer
agrees to indemnify and hold the Landlord, its Management Agent and those in
privity of estate with the Landlord harmless from and against all cost, expense
and/or liability arising out of or based upon any and all claims, accidents,
injuries and damages mentioned in Section 13.1 of this ARTICLE XIII. Each such
policy shall be non-cancelable with respect to the Landlord and the Landlord's
said designees without thirty (30) days' prior written notice to the Landlord,
and a duplicate original or certificate thereof shall be delivered to the
Landlord. The minimum limits of liability of such insurance per occurrence shall
be $1,000,000.00 for injury (or death) to any one person, and $3,000,000.00 for
all injury, damage and loss per occurrence, or such higher limits as the
Landlord may from time to time request, provided such higher limits are then
customarily carried on first-class shopping centers.
Landlord agrees that it shall maintain a general comprehensive policy
of liability insurance with minimum limits of liability of such insurance per
occurrence shall be $1,000,000.00 for injury (or death) to any one person, and
$3,000,000.00 for all injury, damage and loss per occurrence covering the common
area of the premises and the actions of the Landlord's agent, servants and
employees in the course their employment. The Landlord agrees to provide
evidence of said insurance to the Tenant on written request.
Section 13.3. The Tenant agrees to use and occupy the demised premises
and to use such other portions of the Shopping Center as it is herein given the
right to use at its own risk; and that the Landlord shall have no responsibility
or liability for any loss of or damage to the Tenant's leasehold improvements or
to fixtures or other personal property of the Tenant or those claiming by,
through or under the Tenant. The provisions of this Section shall apply during
the whole of the term hereof, and in view of the permission given to the Tenant
to install fixtures and do certain work prior to the Commencement Date, shall
also apply at all times prior to the Commencement Date.
17
Section 13.4. The Tenant agrees that the Landlord shall not be
responsible or liable to the Tenant, or to those claiming by, through or under
the Tenant, for any loss or damage that may be occasioned by or through the acts
or omissions of persons occupying adjoining premises or any part of the premises
adjacent to or connecting with the demised premises or any of the buildings on
the Shopping Center, or otherwise, or for any loss or damage resulting to the
Tenant or those claiming by, through or under the Tenant, or its or their
property, from the bursting, stopping or leaking of water, gas, sprinkler, sewer
or steam pipes.
Section 13.5. The foregoing provisions of the ARTICLE XIII (as well as
any other provisions dealing with indemnity and the like by Tenant of Landlord)
shall be deemed to be modified in each case by the insertion in the appropriate
place of the language: "except as other provided in Mass. G.L. Ter. Ed., C. 186,
Section 15".
ARTICLE XIV.
Landlord's Access to Premises
Section 14.1. Except in the case of an emergency, which shall mean
immediate peril of human life or property, in which event Landlord shall attempt
if reasonably possible to give Tenant telephone notice, Landlord shall only have
access to the Tenant's premises on reasonable notice to Tenant. Tenant agrees to
cooperate with the Landlord in providing access at reasonable times. If repairs
are required to be made by the Tenant pursuant to the terms hereof or if the
Tenant is required to perform any other obligation under this lease, the
Landlord may demand that the Tenant make such repairs or perform such obligation
forthwith, and if the Tenant refuses or neglects to commence such repairs or
performance and complete the same with reasonable dispatch, after such demand,
the Landlord may (but shall not be required so to) make or cause such repairs or
performance to be done and shall not be responsible to the Tenant for any loss
or damage that may accrue to its business by reason thereof. If the Landlord
makes or causes such repairs or performance to be done, or endeavors so to do,
the Tenant agrees that it will forthwith, on demand, pay to the Landlord the
cost thus incurred, and if the Tenant shall default in such payment, the
Landlord shall have the remedies provided in ARTICLE XIV hereof.
Section 14.2. For a period commencing six (6) months prior to the
termination of this lease, the Landlord may have reasonable access to the
demised premises for the purpose of exhibiting the same to prospective tenants,
upon reasonable advance notice to Tenant and provided that the same does not
unreasonably interfere with Tenant's business operations in the demised
premises. Tenant shall have the right to have a representative present at all
times during such periods of access.
ARTICLE XV.
Insurance
Section 15.1. The Landlord shall keep the demised premises insured
against loss or damage by fire, with the usual extended coverage endorsements
and such other insurance as from time to time the then holder of the first
mortgage which includes the demised premises shall require or the Landlord
otherwise shall deem advisable, in amounts not less than eighty percent (80%) of
the full insurable value thereof above foundation walls or such greater amounts
as the Landlord shall deem advisable, and with such deductibles as the Landlord
shall deem advisable, but specifically excluding any property or improvements
installed by or belonging to the Tenant.
18
Section 15.2. The Tenant also agrees that it shall continuously keep
its fixtures, merchandise, equipment and other personal property from time to
time located in, on or about the demised premises, and all leasehold
improvements to the demised premises constructed or installed by the Tenant
insured under a policy or policies naming the Landlord (and such other persons
as are in privity of estate with the Landlord as may be set out in notice from
time to time) as an additional insured and the Tenant as primary insured against
loss or damage by fire with the usual extended coverage and all risk
endorsements in amounts equal to the full replacement cost thereof by reputable
insurance companies licensed to do business in The Commonwealth of Massachusetts
that have a fully-capitalized guaranty fund covering those individuals and
entities that they insure that reside, are situated or do business in The
Commonwealth of Massachusetts. Prior to the Commencement Date, no less often
than annually thereafter, and at any other time upon the request of the
Landlord, the Tenant shall furnish to the Landlord evidence of such continuous
insurance coverage satisfactory to the Landlord. It is understood and agreed
that the Tenant assumes all risk of damage to its own property arising from any
cause whatsoever, including, without limitation, loss by theft or otherwise.
Section 15.3. Insofar as and to the extent that the following provision
may be effective without invalidating or making it impossible to secure
insurance coverage obtainable from responsible insurance companies doing
business in The Commonwealth of Massachusetts (even though extra premium may
result therefrom): the Landlord and the Tenant mutually agree that with respect
to any loss which is covered by insurance then being carried by them,
respectively, the one carrying such insurance and suffering said loss releases
the other of and from any and all claims with respect to such loss; and they
further mutually agree that their respective insurance companies shall have no
right of subrogation against the other on account thereof. In the event that an
additional premium is payable by either party as a result of this provision, the
other party shall reimburse the party paying such premium the amount of such
extra premium. If, at the written request of one party, this release and
non-subrogation provision is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this Section shall be deemed to modify or otherwise affect releases
elsewhere herein contained of either party for claims.
Section 15.4. The Tenant covenants and agrees that it will not do or
permit anything to be done in or upon the demised premises or bring in anything
or keep anything therein, which shall increase the rate of insurance on the
demised premises or on the other buildings located on the Shopping Center above
the standard rate on said premises and buildings with a regular savings bank
located in the demised premises; and the Tenant further agrees that in the event
it shall do any of the foregoing, it will promptly pay to the Landlord on demand
any such increase resulting therefrom, which shall be due and payable as
additional rent hereunder.
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ARTICLE XVI.
Damage Clause
Section 16.1. In case during the term hereof the demised premises shall
be partially damaged (as distinguished from "substantially damaged", as that
term is hereinafter defined) by fire or other casualty, the Landlord shall
forthwith proceed to repair such damage and restore the demised premises, or so
much thereof as was originally constructed by the Landlord or any predecessor in
title to the Landlord, to substantially their condition at the time of such
damage, but the Landlord shall not be responsible for any delay which may result
from any cause beyond the Landlord's reasonable control.
Section 16.2. In case during the term hereof the demised premises shall
be substantially damaged or destroyed by fire or other casualty, the risk of
which is covered by the Landlord's insurance, this lease shall, except as
hereinafter provided, remain in full force and effect, and the Landlord shall
promptly after such damage and the determination of the net amount of insurance
proceeds available to the Landlord, expend so much as may be necessary of such
net amount to restore, to the extent originally constructed by the Landlord or
any predecessor in title to the Landlord (consistent, however, with zoning laws
and building codes then in existence to the extent applicable to such
reconstruction), so much of the demised premises as was originally constructed
by the Landlord to substantially the condition in which such portion of the
demised premises was in at the time of such damage, except as hereinafter
provided, but the Landlord shall not be responsible for delay which may result
from any cause beyond the reasonable control of the Landlord. Should the net
amount of insurance proceeds available to the Landlord be insufficient to cover
the cost of restoring the demised premises, in the reasonable estimate of the
Landlord, the Landlord may, but shall have no obligation to, supply the amount
of such insufficiency and restore the demised premises with all reasonable
diligence or the Landlord may terminate this lease by giving notice to the
Tenant not later than a reasonable time after the Landlord has determined the
estimated net amount of insurance proceeds available to the Landlord and the
estimated cost of such restoration. In case of substantial damage or
destruction, as a result of a risk which is not covered by the Landlord's
insurance, the Landlord shall likewise be obligated to rebuild the demised
premises, all as aforesaid, unless the Landlord, within a reasonable time after
the occurrence of such event, gives written notice to the Tenant of the
Landlord's election to terminate this lease. If the Landlord shall elect to
terminate this lease, as aforesaid, this lease and the term hereof shall cease
and come to an end as of the date of said damage or destruction. If the Landlord
has not restored the demised premises to the extent required under this Section
16.2 within eighteen (18) months after the date of such damage or destruction,
such eighteen (18) month period to be extended to the extent of any delays in
the completion of such restoration due to matters beyond the Landlord's
reasonable control, then the Tenant may elect to terminate this lease by giving
written notice of such election to the Landlord within thirty (30) days after
the end of such eighteen (18) month period and before the substantial completion
of such restoration. If the Tenant so elects to terminate this lease, then this
lease and the term hereof shall cease and come to an end on the date that is
sixty (60) days after the date that Landlord receives Tenant's termination
notice, unless on or before such date the Landlord has substantially completed
such restoration.
Section 16.3. However, if the demised premises shall be substantially
damaged or destroyed by fire, windstorm, or otherwise within the last two (2)
years of the term of this lease, either party shall have the right to terminate
this lease, provided that notice thereof is given to the other party not later
than sixty (60) days after such damage or destruction. If said right of
termination is exercised, this lease and the term hereof shall cease and come to
an end as of the date of said damage or destruction.
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Section 16.4. Unless this lease is terminated as provided in Section
16.2, Section 16.3 or Section 16.6 of this ARTICLE XVI, if the demised premises
shall be damaged or destroyed by fire or other casualty, then the Tenant shall:
(1) repair and restore all portions of the demised premises not required to be
restored by the Landlord pursuant to this ARTICLE XVI to substantially the
condition which such portions of the demised premises were in at the time of
such casualty; (ii) equip the demised premises with trade fixtures and all
personal property necessary or proper for the operation of the Tenant's
business; and (iii) open for business in the demised premises - as soon
thereafter as possible.
Section 16.5. In the event that the provisions of Section 16.1 or
Section 16.2 of this ARTICLE XVI shall become applicable, the minimum rent and
all additional rent payable hereunder other than percentage rent shall be abated
or reduced proportionately during any period in which, by reason of such damage
or destruction, there is substantial interference with the operation of the
business of the Tenant in the demised premises, having regard to the extent to
which the Tenant may be required to discontinue its business in the demised
premises, and such abatement or reduction shall continue for the period
commencing with such destruction or damage and ending with the completion by the
Landlord of such work of repair and/or reconstruction as the Landlord is
obligated to do. Nothing in this Section shall be construed to xxxxx or reduce
percentage rent.
Section 16.6. If, however, the Shopping Center shall be substantially
damaged or destroyed by fire or casualty, irrespective of whether or not the
demised premises are damaged or destroyed, the Landlord shall promptly restore,
to the extent originally constructed by the Landlord or any predecessor in title
to the Landlord (consistent, however, with zoning laws and building codes then
in existence to the extent applicable to such reconstruction), so much of such
Shopping Center as was originally constructed by the Landlord or any predecessor
in title to Landlord to substantially the condition thereof at the time of such
damage, unless the Landlord, within a reasonable time after such loss, gives
notice to the Tenant of the Landlord's election to terminate this lease. If the
Landlord shall give such notice, then anything in this ARTICLE XVI to the
contrary notwithstanding this lease shall terminate as of the date of such
notice with the same force and effect as if such date were the date originally
established as the Expiration Date hereof. If such damage shall render the
demised premises untenantable to the extent that Tenant is required to close its
store operations in the demised premises and the store does, in fact, close and
remain closed solely by reason of such damage for more than three (3)
consecutive business days after Tenant gives Landlord notice of such
interference and closing then, as Tenant's remedy therefor, the minimum rent and
other charges payable hereunder other than percentage rent shall be abated from
the date of Tenant's notice until the demised premises shall cease to be
untenantable or Tenant reopens the store, whichever occurs first.
Section 16.7. The terms "substantially damaged" and "substantial
damage", as used in this ARTICLE, shall have reference to damage of such a
character as cannot reasonably be expected to be repaired or the premises
restored within sixty (60) days from the time that such repair or restoration
work would be commenced.
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ARTICLE XVII.
Eminent Domain
Section 17.1. If the demised premises, or such portion thereof as to
render the balance (when reconstructed) unsuitable for the purposes of the
Tenant in the reasonable opinion of the Landlord, shall be taken by condemnation
or right of eminent domain, either party, upon written notice to the other,
shall be entitled to terminate this lease, provided that such notice is given
not later than thirty (30) days after the Tenant has been deprived of
possession. For the purposes of this ARTICLE, any deed or any transfer of title
in lieu of any such taking shall be treated as such a taking. Moreover, for the
purposes of this ARTICLE, such a taking of the Tenant's entire leasehold
interest hereunder in the demised premises (or assignment or termination in lieu
thereof) shall be treated as a taking of the entire demised premises, and in
such event the Tenant shall be treated as having been deprived of possession on
the effective date thereof. Should any part of the demised premises be so taken
or condemned, and should this lease not be terminated in accordance with the
foregoing provision, the Landlord covenants and agrees within a reasonable time
after such taking or condemnation, and the determination of the Landlord's award
therein, to expend so much as may be necessary of the net amount which may be
awarded to the Landlord in such condemnation proceedings in restoring the
demised premises to an architectural unit as nearly like their condition prior
to such taking as shall be practicable. Should the net amount so awarded to the
Landlord be insufficient to cover the cost of restoring the demised premises, as
estimated by the Landlord's architect, the Landlord may, but shall not be
obligated to, supply the amount of such insufficiency and restore said premises
as above provided, with all reasonable diligence, or terminate this lease. Where
the Tenant has not already exercised any right of termination accorded to it
under the foregoing portion of this paragraph, the Landlord shall notify the
Tenant of the Landlord's election not later than ninety (90) days after the
final determination of the amount of the award. Further, if so much of the
Shopping Center shall be so taken that continued operation of the Shopping
Center would be uneconomical in the Landlord's judgment or prohibited by zoning
or other applicable law, the Landlord shall have the right to terminate this
lease by giving notice to the Tenant of the Landlord's desire so to do not later
than thirty (30) days after the effective date of such taking.
Section 17.2. Out of any award for any taking of the demised premises
(including, without limitation, any taking of the Tenant's leasehold interest as
aforesaid ), in condemnation proceedings or by right of eminent domain, the
Landlord shall be entitled to receive and retain the amounts awarded for such
demised premises and for Landlord's business loss. Tenant shall be entitled to
receive and retain only such amounts as may be specifically awarded to it in any
such condemnation proceedings, because of the taking of its trade fixtures,
furniture, and its leasehold improvements, for relocation expenses, and for loss
of business, but all only to the extent the Landlord's award is not thereby
reduced and the Tenant is not otherwise reimbursed for the same by the Landlord.
Section 17.3 In the event of any such taking of the demised premises,
the minimum rent or a fair and just proportion thereof, according to the nature
and extent of the damage sustained, shall be equitably suspended or abated
ARTICLE XVIII.
Bankruptcy or Insolvency
Section 18.1. In the event that the Tenant shall become a Debtor under
the Bankruptcy Code, and the Trustee or the Tenant shall elect to assume this
lease for the purpose of assigning the same or otherwise, such election and
assignment may only be made if all the terms and conditions of Sections 18.2 and
18.3 hereof are satisfied. If such Trustee shall fail to elect to assume this
lease within sixty (60) days after the filing of the Petition, this lease shall
be deemed to have been rejected. The Landlord shall be thereupon immediately
entitled to possession of the demised premises without further obligation to the
Tenant or the Trustee, and this lease shall be terminated, but the Landlord's
right to be compensated for damages both at law and as provided in ARTICLE XIV
hereof in such case shall survive.
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Section 18.2.
A. No election by the Trustee or Debtor-In-Possession to assume this
lease, whether under Chapter 7, 11 or 13, shall be effective unless each of the
following conditions, which the Landlord and the Tenant acknowledge and agree
are commercially reasonable in the context of a bankruptcy case of the Tenant,
have been satisfied, and the Landlord has so acknowledged in writing:
(1) The Trustee or the Debtor-In-Possession has cured, or has
provided the Landlord adequate assurance (as hereinafter
defined) that:
(a) Within ten (10) days from the date of such
assumption, the Trustee will cure all monetary
defaults under this lease; and
(b) Within thirty (30) days from the date of such
assumption, the Trustee will cure all nonmonetary
defaults under this lease.
(2) The Trustee or Debtor-In-Possession has compensated, or has
provided to the Landlord adequate assurance (as hereinafter
defined) that within ten (10) days from the date of
assumption, the Landlord will be compensated for any pecuniary
loss incurred by the Landlord arising from the default of the
Tenant, the Trustee, or the Debtor-In-Possession as recited in
the Landlord's written statement of pecuniary loss sent to the
Trustee or Debtor-In-Possession.
(3) The Trustee or the Debtor-In-Possession has provided the
Landlord with adequate assurance (as hereinafter defined) of
the future performance of each of the Tenant's, the Trustee's
or Debtor-In-Possession's obligations under this lease,
provided, however that:
(a) Whether or not otherwise required by the terms of
this lease, the Trustee or Debtor-In-Possession shall
also pay in advance on the date minimum rent is
payable hereunder, one-twelfth (1/12th) of the
Tenant's annual obligations under this lease for
common area maintenance, Taxes, and any other charges
payable hereunder.
(b) From and after the date of the assumption of this
lease, the Trustee or Debtor-In-Possession shall pay
as annual minimum rent an amount equal to the sum of
the annual minimum rent otherwise payable hereunder,
plus the highest of the amounts of the annual
percentage rent payable hereunder for and with
respect to any of the then last three (3) full
lease-years prior to the date of the Tenant's
Petition under the Bankruptcy Code, which amount
shall be payable in advance in equal monthly
installments on the date minimum rent is payable
hereunder; all as if such amount had originally been
specified in Section 1.1(f) of this lease as the
minimum rent.
(c) The obligations imposed upon the Trustee or
Debtor-In-Possession under this lease shall continue
with respect to the Tenant or any assignee of this
lease after the completion of the bankruptcy case,
subject to any further and/or increased obligations
which thereafter are imposed by any provisions of
this lease.
(4) The assumption of this lease will not:
(a) Breach any provision in this lease or any other
lease, mortgage, financing agreement or other
agreement by which the Landlord is bound relating to
the Shopping Center; or
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(b) Disrupt, in the Landlord's judgment, the tenant mix
of the Shopping Center or any other attempt by the
Landlord to provide a specific variety of retail
stores in the Shopping Center which, in the
Landlord's judgment, would be most beneficial to all
of the tenants of the Shopping Center and would
enhance the image, reputation, and profitability of
the Shopping Center.
(5) The Assumption has been ratified and approved by order of such
court or courts as have jurisdiction under the Bankruptcy
Code.
B. For the purposes of this Section 18.2, the Landlord and the Tenant
acknowledge that, in the context of a bankruptcy proceeding of the
Tenant, at a minimum, "adequate assurance" shall mean:
(1) The Trustee or Debtor-In-Possession has and will continue to
have sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure the
Landlord that the Trustee or Debtor-In-Possession will have
sufficient funds to fulfill the obligations of the Tenant
under this lease, and to keep the demised premises stocked
with merchandise and properly staffed with sufficient
employees to conduct a fully-operational, actively promoted
business on the demised premises; and
(2) The Bankruptcy Court or such court as is exercising
jurisdiction over the Bankruptcy Code shall have entered an
Order segregating sufficient cash payable to the Landlord
and/or the Trustee or Debtor-In-Possession shall have granted
a valid and perfected first lien and security interest and/or
mortgage in property of the Tenant, the Trustee or
Debtor-In-Possession, acceptable as to value and kind to the
Landlord, to secure to the Landlord the obligation of the
Trustee or Debtor-In-Possession to cure any monetary and/or
non monetary defaults under this lease within the time periods
set forth above.
Section 18.3. If the Trustee or Debtor-In Possession has assumed this
lease pursuant to the terms and provisions of Sections 18.1 and 18.2 hereof, for
the purpose of assigning (or elects to assign) the Tenant's interest under this
lease, or the estate created thereby, to any other person, such interest or
estate may be so assigned only if the Landlord shall acknowledge in writing that
the intended assignee has provided adequate assurance of the future performance
(as defined in this Section 18.3) of all of the terms, covenants and conditions
of this lease to be performed by the Tenant.
For the purposes of this Section 18.3, the Landlord and the Tenant
acknowledge that, in the context of a bankruptcy case of the Tenant, at a
minimum, "adequate assurance of future performance" shall mean that each of the
following conditions have been satisfied, and the Landlord has so acknowledged
in writing:
(1) The assignee has submitted a current financial statement
audited by a certified public accountant which shows a net
worth and working capital in amounts (which amounts shall in
no event be less than the greater of those of the Tenant and
any guarantor of the Tenant's obligations hereunder at the
time of the execution of this lease) determined to be
sufficient by the Landlord to assure the future performance by
such assignee of the Tenant's obligations under this lease;
(2) The assignee has submitted in writing evidence, satisfactory
to the Landlord, of substantial banking experience in shopping
centers of comparable size to the Shopping Center and in
services permitted under this lease;
(3) The Landlord has obtained all consents and waivers from any
third party required under any lease, mortgage, financing
arrangement or other agreement by which the Landlord is bound
to permit the Landlord to consent to such assignment;
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(4) The assignee has supplied such additional information required
to be supplied by Section 10.3 hereof and has complied with
any other provisions, conditions and requirements set forth in
said Section 10.3 for an assignment of the Tenant's interest
in this lease or the estate created thereby; and
(5) The Assignee has deposited with the Landlord a security
deposit in such amount as determined by the Landlord to be
appropriate based upon the financial information supplied
under this Section 18.3.
Section 18.4. When, pursuant to the Bankruptcy Code, the Trustee or
Debtor-In-Possession shall be obligated to pay reasonable use and occupancy
charges for the use of the demised premises or any portion thereof, such charges
shall not be less than the minimum rent specified in Section 1.1(f) hereof and
any other charges payable by the Tenant hereunder, including, without
limitation, the Tenant's share of common area maintenance expenses and Taxes.
Section 18.5. The rights and remedies of the Landlord contained in the
provisions of this ARTICLE XVIII are and shall be deemed to be in addition to,
and not in limitation of, applicable provisions of ARTICLE XIV or other
provisions hereof, or any other rights which the Landlord may have under
applicable statutory or case law. Whenever any of the terms or provisions of
this lease, including, without limitation, rental obligations, are modified
pursuant to the provisions of this ARTICLE XVIII, upon the Landlord's request
the parties hereto promptly shall execute, acknowledge and deliver a written
instrument evidencing and confirming the same. In no event shall this lease, if
the term hereof has expired or has been terminated in accordance with the
provisions hereof, be revived, and no stay or other proceeding shall nullify,
postpone or otherwise affect the expiration or earlier termination of the term
of this lease pursuant to the provisions of ARTICLE XIX hereof or prevent the
Landlord from regaining possession of the demised premises thereupon.
ARTICLE XIX.
Landlord's Remedies
Section 19.1. Any one of the following shall be deemed to be an "Event
of Default":
A. Failure on the part of the Tenant to make payment of rent or any
other monetary amount due under this lease within ten (10) days after the
Landlord has sent to the Tenant notice of such default.
However, if: (i) the Landlord shall have sent to the Tenant two notices
of such default, even though the same shall have been cured and this lease not
terminated; and (ii) during the same calendar year in which said notices of
default have been sent by the Landlord to the Tenant, the Tenant thereafter
shall default in any monetary payment, the same shall be deemed to be an Event
of Default upon the Landlord giving the Tenant written notice thereof, without
the ten (10) day grace period set forth above.
B. With respect to a non-monetary default under this lease, failure of
the Tenant to cure the same within thirty (30) days after the Landlord has sent
to the Tenant notice of such default (or, if such default is of a nature that it
is not susceptible of cure within thirty (30) days, then such cure period shall
be extended to equal the minimum time period reasonably required to cure the
default after the Landlord has sent to the Tenant notice of the same, provided
the Tenant shall have commenced such cure in said thirty (30) days and shall
thereafter diligently pursue such cure to completion, and that Tenant shall give
monthly status reports to Landlord of Tenant's progress in curing such default).
The Tenant shall be obligated to commence forthwith and to complete as soon as
possible the curing of such default; and if the Tenant fails so to do, the same
shall be deemed to be an Event of Default.
25
However, if: (i) the Landlord shall have sent to the Tenant two notices
of such default, even though the same shall have been cured and this lease not
terminated; and (ii) during the same calendar year in which said notices of
default had been sent by the Landlord to the Tenant, the Tenant thereafter shall
default in any non-monetary matter, the same shall be deemed to be an Event of
Default upon the Landlord giving the Tenant written notice thereof, and the
Tenant shall have no grace period within which to cure the same.
C. The commencement of any of the following proceedings, with such
proceeding not being dismissed within ninety (90) days after it has begun: (i)
the estate hereby created being taken on execution or by other process of law;
(ii) the Tenant being judicially declared bankrupt or insolvent according to
law; (iii) an assignment being made of the property of the Tenant for the
benefit of creditors; (iv) a receiver, guardian, conservator, trustee in
involuntary bankruptcy or other similar officer being appointed to take charge
of all or any substantial part of the Tenant's property by a court of competent
jurisdiction; or (v) a petition being filed for the reorganization of the Tenant
under any provisions of the Bankruptcy Code or any federal or state law now or
hereafter enacted.
D. The Tenant filing a petition for reorganization or for rearrangement
under, or otherwise availing itself of any provisions of, the Bankruptcy Code or
any federal or state law now or hereafter enacted providing a plan or other
means for a debtor to settle, satisfy or extend the time for the payment of
debts.
E. Excepting only those days on which Tenant is prevented from
remaining open by virtue of strike, fire, unavoidable casualty or other event
beyond the control of Tenant, but financial inability shall never be deemed to
be an event beyond Tenant's control (and Tenant agrees promptly to advise
Landlord of any such event and closing, and further agrees to reopen as soon
thereafter as possible), failure of the Tenant, after the term of this lease
commences, to be open for business to the public for more than two days when
required by this lease to be so open in any one lease-year, or for more than an
aggregate of Five (5) such days during the term hereof, or if the Tenant shall
otherwise abandon or vacate the demised premises. Without limitation, the
failure of the Tenant to have completed its initial alterations and equipping of
the demised premises and to have opened for business on the Commencement Date or
the closing of the demised premises for business after the Tenant has initially
opened for business therein, if such failure or closing continues for more than
three consecutive days on which the Tenant is required pursuant to applicable
provisions of this lease to keep the demised premises open for business, shall
be considered for the purposes hereof to be an abandonment of the demised
premises by the Tenant.
Section 19.2. Should any Event of Default occur then, notwithstanding
any license of any former breach of covenant or waiver of the benefit hereof or
consent in a former instance, the Landlord may in addition to any remedies
available to Landlord under applicable statutes or case law, or otherwise,
immediately or at any time thereafter, and, to the maximum extent permitted by
law, without demand or notice (and the Tenant hereby expressly waives any notice
to quit possession of the demised premises), enter into and upon the demised
premises or any part thereof in the name of the whole and repossess the same as
of the Landlord's former estate, and expel the Tenant and those claiming through
or under it and remove its or their effects (forcibly if necessary) without
being deemed guilty of any manner of trespass, and without prejudice to any
remedies which might otherwise be used for arrears of rent or preceding breach
of covenant and/or the Landlord may send written notice to the Tenant
terminating the term of this lease; and upon the first to occur of: (i) entry as
aforesaid; or (ii) the fifth (5th) day following the sending of such notice of
termination, the term of this lease shall terminate.
26
Section 19.3 The Tenant covenants and agrees, notwithstanding any
termination of this lease as aforesaid or any entry or re-entry by the Landlord,
whether by summary proceedings (and, to the maximum extent permitted by law, the
Tenant hereby expressly waives any notice to quit possession of the demised
premises prior to the institution of such summary proceedings), termination, or
otherwise, to pay and be liable for on the days originally fixed herein for the
payment thereof, amounts equal to the several installments of rent and other
charges reserved as they would, under the terms of this lease, become due if
this lease had not been terminated or if the Landlord had not entered or
re-entered, as aforesaid, and whether the demised premises be relet or remain
vacant, in whole or in part, or for a period less than the remainder of the
term, and for the whole thereof; but in the event the demised premises be relet
by the Landlord, the Tenant shall be entitled to a credit in the net amount of
rent received by the Landlord in reletting, after deduction of all expenses
incurred in reletting the demised premises (including, without limitation,
remodeling costs, brokerage fees, and the like), and in collecting the rent in
connection therewith. It is specifically understood and agreed that the Landlord
shall be entitled to take into account in connections with any reletting of the
demised premises all relevant factors which would be taken into account by a
sophisticated developer in securing a replacement tenant for the demised
premises, such as, but not limited to, the type of shopping center then being
operated on the Shopping Center, matters of tenant mix, the type of operation
proposed to be conducted by any such replacement tenant, and the financial
responsibility of any such replacement tenant. The Landlord agrees to use
reasonable efforts to relet the demised premises in the event of a termination
notice under this Article XIX, provided that such efforts shall not require
Landlord to give priority to the reletting of the demised premises over other
space in the Shopping Center that may be vacant and Landlord may take into
account the factors set forth above and further provided that the Landlord's
obligation to use reasonable efforts as provided herein is independent of
Tenant's obligations under this Article XIX and shall not be construed to
entitle Tenant to set-off against any amounts payable by Tenant hereunder in the
event of a breach or alleged breach by Landlord of such obligation. As an
alternative, at the election of the Landlord, the Tenant will upon such
termination pay to the Landlord, as damages, such a sum as at the time or such
termination represents the amount of the excess, if any, of the then value of
the total rent and other benefits which would have accrued to the Landlord under
this lease for the remainder of the lease term if the lease terms had been fully
complied with by the Tenant over and above the then cash rental value (in
advance) of the premises for the balance of the term. In lieu of such
alternative, at the election of the Landlord, the Tenant will upon such
termination pay to the Landlord as liquidated damages and not as a penalty, the
sum of one (1) full year's minimum rent and other charges. To induce the
Landlord to enter into this lease, (i) the Tenant confirms and agrees that this
transaction is a commercial and not a consumer transaction, (ii) the Tenant
hereby waives any right to trial by jury in any action, proceeding or
counterclaim brought by the Landlord against the Tenant on any matters
whatsoever arising out of or in any way connected with this lease, the
relationship of the Landlord and the Tenant, the Tenant's use or occupancy of
the demised premises, and/or any claim of injury or damage, and (iii) the Tenant
agrees not to interpose any counterclaim of whatever nature or description in
any proceeding commenced by the Landlord for nonpayment of rent, minimum rent,
percentage rent or any other amount due hereunder, unless the law of the
Commonwealth of Massachusetts shall require such counterclaim and provided the
foregoing shall not be construed as a waiver of the right of the Tenant to
assert such claims in any separate action brought by the Tenant.
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ARTICLE XX.
Miscellaneous Provisions
Section 20.1. Waiver.
Failure on the part of the Landlord or Tenant to complain of any action
or non-action on the part of the Tenant or Landlord, no matter how long the same
may continue, shall never be deemed to be a waiver by the Landlord or Tenant of
any of his rights hereunder. Further, it is covenanted and agreed that no waiver
at any time of any of the provisions hereof by the Landlord or Tenant shall be
construed as a waiver of any of the other provisions hereof, and that a waiver
at any time of any of the provisions hereof shall not be construed as a waiver
at any subsequent time of the same provisions. The consent or approval of the
Landlord or Tenant to or of any action by the Tenant or Landlord requiring the
other party's consent or approval shall not be deemed to waive or render
unnecessary in any subsequent similar act. No payment by the Tenant, or
acceptance by the Landlord, of a lesser amount than shall be due from the Tenant
to the Landlord shall be treated otherwise than as a payment on account. The
acceptance by the Landlord of a check for a lesser amount with an endorsement or
statement thereon, or upon any letter accompanying such check, that such lesser
amount is payment in full, shall be given no effect, and the Landlord may accept
such check without prejudice to any other rights or remedies which the Landlord
may have against the Tenant.
Section 20.2. Covenant of Quiet Enjoyment.
The Tenant, subject to the terms and provisions of this lease on
payment of the rent and observing, keeping and performing all of the terms and
provisions of this lease on its part to be observed, kept and performed, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the demised
premises during the term hereof without hindrance or ejection by any persons
lawfully claiming under the Landlord; but it is understood and agreed that this
covenant and any and all other covenants of the Landlord contained in this lease
shall be binding upon the Landlord and the Landlord's successors only with
respect to breaches occurring during the Landlord's and the Landlord's
successors' respective ownership of the Landlord's interest hereunder. In
addition, the Tenant specifically agrees to look solely to the Landlord's
interest in the Shopping Center for recovery of any judgment from the Landlord;
it being specifically agreed that neither the Landlord nor anyone claiming under
the Landlord shall ever be personally liable for any such judgment. It is
further understood and agreed that the Landlord shall in no event be liable for
failure to perform any obligation under this lease in the event the Landlord is
prevented from so performing by strike, lockout, breakdown, accident, order or
regulation of or by any governmental authority, or failure of supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts, or
employees necessary to furnish such services, or because of war or other
emergency, or for any cause beyond the Landlord's reasonable control, or for any
cause due to any act or neglect of the Tenant or its servants, agents,
employees, licensees, or any person claiming by, through or under the Tenant, or
any termination for any reason of the Landlord's occupancy of the premises from
which any service or work is being supplied by the Landlord, and in no event
shall the Landlord ever be liable to the Tenant for any indirect or
consequential damages.
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Section 20.2A Landlord's Default
The occurrence of any one or more of the following events shall
constitute a default and breach of this Lease by Landlord: (a) Landlord's
failure to do, observe, keep and perform any of the terms, covenants,
conditions, agreements or provisions of this Lease required to be done,
observed, kept or performed by Landlord, within thirty (30) days after written
notice by Tenant to Landlord of said failure (except when the nature of
Landlord's obligation is such that more than thirty (30) days are required for
its performance, then Landlord shall not be deemed in default if it commences
performance within the thirty (30) day period and thereafter diligently pursues
the cure to completion). In the event of a default by Landlord, Tenant, at its
option, without further notice or demand, shall have the right to any one or
more of the following remedies in addition to all other rights and remedies
provided at law or in equity or elsewhere herein: (a) to pursue the remedy of
specific performance; (b) to seek money damages for loss arising from Landlord's
failure to discharge its obligations under the Lease; and (c) to terminate the
Lease. Nothing herein contained shall relieve Landlord from its obligations
hereunder, nor shall this Section be construed to obligate Tenant to perform
Landlord's repair obligations.
Section 20.3. Status Report.
Recognizing that both parties may find it necessary to establish to
third parties, such as accountants, banks, mortgagees, or the like, the then
current status of performance hereunder, either party, on the written request of
the other made from time to time, will promptly furnish a written statement of
the status of any matter pertaining to this lease. Without limiting the
generality of the foregoing, the Tenant specifically agrees, promptly upon the
commencement of the term hereof, to notify the Landlord in writing of the
Commencement Date, and acknowledge satisfaction of the requirements with respect
to construction and other matters by the Landlord, save and except for such
matters as the Tenant may wish to set forth specifically in said statement.
Section 20.4. Notice to Mortgagee.
After receiving written notice from any person, firm, or other entity,
that it holds a mortgage (which term shall include a deed of trust) which
includes as part of the mortgaged premises the demised premises, the Tenant
shall, so long as such mortgage is outstanding, be required to give to such
holder the same notice as is required to be given to the Landlord under the
terms of this lease, but such notice may be given by the Tenant to the Landlord
and such holder concurrently. It is further agreed that such holder shall have
the same opportunity to cure any default, and the same time within which to
effect such curing, as is available to the Landlord; and if necessary to cure
such a default, such holder shall have access to the demised premises.
Section 20.5. Assignment of Rents.
With reference to any assignment by the Landlord of the Landlord's
interest in this lease, or the rents payable hereunder, conditional in nature or
otherwise, which assignment is made to the holder of the first mortgage or deed
of trust on the demised premises, the Tenant agrees:
(a) that the execution thereof by the Landlord, and the acceptance
thereof by such holder, shall never be deemed an assumption by
such holder of any of the obligations of the Landlord
hereunder, unless such holder shall, by written notice sent to
the Tenant, specifically otherwise elect; and
29
(b) that, except as aforesaid, such holder shall be treated as
having assumed the Landlord's obligations hereunder only upon
foreclosure of such holder's mortgage or deed of trust and the
taking of possession of the demised premises by such holder.
The Tenant agrees that, in the event of foreclosure of any such
mortgage or deed of trust to which this lease is subordinate (or deed or
assignment in lieu of foreclosure thereof), at the election of the holder, the
Tenant shall attorn to such holder (and its successors and assigns) as the
Landlord's interest hereunder in which case, subject to any applicable terms and
provisions of any written agreement between Tenant and such holder, this lease
shall continue in effect all as if it had been a lease entered into directly
between Tenant and such holder (and its successors and assigns). The Tenant
agrees, upon receipt of written request so to do, to execute such instruments,
if any, as may be required in order to give effect to the foregoing. Any
obligation hereunder shall be subject to reasonable agreement for
non-disturbance on the part of the mortgagee or successor owner.
Section 20.6. Mechanics' Liens.
The Tenant agrees immediately to discharge of record (either by payment
or by filing of the necessary bond, or otherwise) any mechanics', materialmen's,
or other lien or like filing including, without limitation, any notice of
contract against the demised premises and/or the Landlord's interest therein,
which liens may arise out of any payment due for, or purported to be due for,
any labor, services, materials, supplies, or equipment alleged to have been
furnished to or for the Tenant in, upon or about the demised premises.
Section 20.7. No Brokerage.
The Tenant and Landlord warrants and represents that they have dealt
with no broker other than Xxxxxxxx & Grew, Inc. and Coldwell Banker Commercial,
NRT in connection with the consummation of this lease, and in the event of any
other brokerage claims against the Landlord or Tenant predicated upon prior
dealings with the Tenant or Landlord named herein, the Tenant or Landlord agrees
to defend the same and indemnify the other against any such claim.
Section 20.8. Definition of Additional Rent.
Without limiting any other provision of this lease, it is expressly
understood and agreed that the Tenant's participation in Taxes, common area
maintenance expenses, utility charges, trash removal charges and all other
charges which the Tenant is required to pay hereunder, together with all
interest and penalties that may accrue thereon, shall be deemed to be additional
(but not minimum) rent, and in the event of non-payment thereof by the Tenant,
the Landlord shall have all of the rights and remedies with respect thereto as
would accrue to the Landlord for non-payment of minimum rent.
Section 20.9. Landlord's Fees and Expenses.
Unless prohibited by applicable law and subject to the provisions of
the next following sentence, the Tenant agrees to pay to the Landlord the amount
of all reasonable legal fees and expenses incurred by the Landlord arising out
of or resulting from any act or omission by the Tenant with respect to this
lease or the demised premises, including without limitation, any breach by the
Tenant of its obligations hereunder. In the event that Landlord and Tenant are
involved in any litigation regarding the performance of any of their obligations
under this lease, the unsuccessful party by final order, decree or judgment in
such litigation by a court of competent jurisdiction shall reimburse the
successful party for all reasonable legal fees and expenses incurred by such
successful party in connection with obtaining such final order, decree or
judgment.
30
Further, if the Tenant shall request the Landlord's consent or joinder
in any instrument pertaining to this lease, the Tenant agrees promptly to
reimburse the Landlord for the reasonable legal fees incurred by the Landlord in
processing such request, not to exceed $500.00 on any one occasion, whether or
not the Landlord complies therewith; and if the Tenant shall fail promptly so to
reimburse the Landlord, same shall be deemed to be a default in the Tenant's
monetary obligations under this lease.
Whenever the Tenant shall request approval by the Landlord of plans,
drawing, specifications, or otherwise with respect to alterations of remodeling
of the demised premises subsequent to the initial construction thereof,
replacement of or changes to the initially approved and installed signs, or the
like, the Tenant specifically agrees promptly to pay to the Landlord all
reasonable charges involved in the review (and re-review, if necessary) and
approval or disapproval thereof whether or not approval shall ultimately be
given, said fee not to exceed $750.00 on any one occasion.
Section 20.10. Invalidity of Particular Provisions.
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 held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this lease shall be valid and be enforced to the fullest extent permitted by
law.
Section 20.11. Provisions Binding, Etc.
Except as herein otherwise expressly provided, the terms hereof shall
be binding upon and shall inure to the benefit of the successors and assigns,
respectively, of the Landlord and the Tenant. Each term and each provision of
this lease to be performed by the Tenant shall be construed to be both a
covenant and a condition. The reference contained to successors and assigns of
the Tenant is not intended to constitute a consent to assignment by the Tenant,
but has reference only to those instances in which the Landlord may later give
written consent to a particular assignment as required by the provisions of
ARTICLE X hereof.
Section 20.12. Other Agreements.
The Tenant hereby warrants and represents that neither this lease nor
the operation of the demised premises hereunder violates the provisions of any
instrument heretofore executed by the Tenant or any affiliate of the Tenant,
including, without limitation, any so-called radius restriction contained in any
such instrument.
Section 20.13. Governing Law.
This lease shall be governed exclusively by the provisions hereof and
by the laws of The Commonwealth of Massachusetts as the same may from time to
time exist.
Section 20.14. Recording.
The Tenant agrees not to record the within lease, but each party hereto
agrees, on request of the other, to execute a Notice of Lease in recordable form
and complying with applicable Massachusetts laws, and reasonably satisfactory to
the Landlord's attorneys. In no event shall such document set forth the rental
or other charges payable by the Tenant under this lease; and any such document
shall expressly state that it is executed pursuant to the provisions contained
in this lease, and is not intended to vary the terms and conditions of this
lease.
31
Section 20.15. Notices.
Whenever by the terms of this lease notice, demand, or other
communication shall or may be given either to the Landlord or to the Tenant, the
same shall be in writing and shall be sent by registered or certified mail,
postage prepaid, or shall be delivered by private express carrier:
If intended for the Landlord, addressed to it at the address set forth
on the first page of this lease, and copies to the Landlord c/o Xxxxxx
Xxxx, Harnish, Jenney, Xxxxxxxx & Xxxx, 000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 (or to such other address or addresses as may from
time to time hereafter be designated by the Landlord by like notice);
If intended for the Tenant, addressed to it at the address set forth on
the first page of this lease with a copy to Xxxxxx X. Xxxxxxxxx,
Xxxxxxx & Xxxxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (or to
such other address or addresses as may from time to time hereafter be
designated by the Tenant by like notice)
All such notices shall be effective when deposited in the United States mail or
delivered to a private express carrier within the Continental United States,
provided that the same are received in the ordinary course at the address to
which the same were sent.
Any such notice, demand, or communication from an attorney acting or
purporting to act on behalf of a party shall be deemed to be notice from such
party provided that such attorney is authorized to act on behalf of such party.
Section 20.16. When Lease Becomes Binding.
Employees or agents of the Landlord have no authority to make or agree
to make a lease or any other agreement or undertaking in connection herewith.
The submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for, the premises,
and this document shall become effective and binding only upon the execution and
delivery hereof by both the Landlord and the Tenant.
All negotiations, considerations, representations, and understandings
between the Landlord and the Tenant are incorporated herein and may be modified
or altered only by agreement in writing between the Landlord and the Tenant, and
no act or omission of any employee or agent of the Landlord shall alter, change,
or modify any of the provisions hereof. The Tenant specifically confirms and
acknowledges that: (i) before entering into this lease, the Tenant has made its
own observations, studies, determinations and projections with respect to the
Tenant's business in the demised premises and all other factors relevant to the
Tenant's decision to enter into this lease, including, without limitation,
competition, market size, sales volume, profitability and general, so-called
"demographics", both present and prospective; and (ii) neither the Tenant nor
any representative of the Tenant has relied upon any representation by (or any
"conversation" with) the Landlord or any representative of the Landlord with
respect to any of said factors.
Section 20.17. Paragraph Headings.
The paragraph headings throughout this instrument are for convenience
and reference only, and the words contained therein shall in no way be held to
explain, modify, amplify, or aid in the interpretation, construction, or meaning
of the provisions of this lease.
32
Section 20.18. Lease Superior or Subordinate to Mortgage and Sale
Leaseback.
It is agreed that the rights and interest of the Tenant under this
lease shall be subject and subordinate to any mortgages or deeds of trust that
may hereafter be placed upon the Landlord's Tract or any portion thereof
containing the demised premises, and to any and all advances to be made
thereunder, and to the interest thereon, and all renewals, modifications,
replacements and extensions thereof, if the mortgagee or trustee named in said
mortgages or deeds of trust shall elect by written notice delivered to the
Tenant to subject and subordinate the rights and interest of the Tenant under
this lease to the lien of its mortgage or deed of trust; it is further agreed
that any mortgagee or trustee may elect to give the rights and interest of the
Tenant under this lease priority over the lien of its mortgage or deed of trust.
In the event of either such election, and upon notification by such mortgagee or
trustee to the Tenant to that effect, the rights and interest of the Tenant
under this lease shall be deemed to be subordinate to, or to have priority over,
as the case may be, the lien of said mortgage or deed of trust, whether this
lease is dated prior to or subsequent to the date of said mortgage or deed of
trust. The Tenant shall execute and deliver whatever instruments may be required
for such purposes forthwith upon demand, and in the event the Tenant fails so to
do within ten (10) days after demand in writing, without limiting the Landlord's
other rights on account of such failure, the Tenant does hereby make, constitute
and irrevocably appoint the Landlord as its attorney in fact and in its name,
please and stead so to do.
Tenant agrees that it will attorn to and recognize any purchaser at a
foreclosure sale under any mortgage or deed of trust upon the Landlord's Tract
or any portion thereof containing the demised premises and shall recognize any
such purchaser, any transferee that acquires the demised premises by deed in
lieu of foreclosure and the successors and assigns of such
purchasers/transferees as its Landlord for the unexpired balance of the term of
this lease upon the same terms and conditions set forth in this lease.
Notwithstanding the foregoing, the Tenant's agreement to attorn to and
recognize any such purchaser or transferee and their successors and assigns
shall be conditioned upon any such purchaser or transferee and their successors
and assigns recognizing the rights of the Tenant under this lease and further
agreeing that the Tenant will not be disturbed in its possession of the demised
premises for any reason other than one that would entitle the Landlord so to
disturb Tenant's possession. Such agreement shall also be upon such terms and
conditions as such purchaser or transferee may require.
Landlord agrees to use reasonable efforts to have the holder of any
such mortgage or deed of trust which may become prior to this lease, and any
such Primary Lessor, as the case may be, enter into its usual nondisturbance
agreement with Tenant, or in lieu thereof provide Tenant with an agreement by
the terms of which such holder or Primary Lessor agrees to recognize the rights
of Tenant under this lease in the event of foreclosure of such mortgage or deed
of trust or termination of such Primary Lease, respectively, so long as Tenant
is not in default hereunder; provided that the Tenant has paid any reasonable
legal fees and other charges which may be required by such holder or such
Primary Lessor, as the case may be, in order so to obtain such agreement (and
the Landlord shall not be required to pay any such charges).
Section 20.19. Holding-Over.
Any holding-over by the Tenant after the expiration of the term of this
lease shall be treated as a tenancy at sufferance at two times the rent and
other charges specified herein (and if varying rates are specified herein, at
two times the highest such rate), prorated on a daily basis, and shall otherwise
be on the terms and conditions set forth in this lease, so far as applicable.
33
Section 20.20. Interest.
All payments becoming due under this lease and not paid when due shall
bear interest from the applicable due date until received by the Landlord at the
lesser of: (i) three percent (3%) per annum above the prime rate published from
time to time in The Wall Street Journal or its successor; or (ii) the highest
lawful rate of interest permitted at the time in The Commonwealth of
Massachusetts.
Section 20.21. Certificate.
In the event the Tenant and/or the Guarantor of the Tenant's
obligations hereunder is a corporation, the Tenant and/or the Guarantor shall
deliver to the Landlord, upon the execution of this lease, a Clerk's Certificate
or Secretary's Certificate in form reasonably satisfactory to the Landlord,
confirming that the execution of this lease and/or the Guarantee, as applicable,
have been duly authorized.
Section 20.22. Option.
Provided the Tenant is not in default of the terms and covenants of
this Lease, Tenant shall have two (2) five year options to extend the term of
this Lease, exercisable by written notice to Landlord no later than 12 months
before the expiration of the original 10 year term or the first option term as
the case may be. All of the terms, conditions and covenants of this Lease shall
apply to each option term, except that the rent shall be computed as set forth
in Section 20.26. The total term, including all possible option terms is 20
years.
Section 20.23. Landlord's Right of Termination
In the event Landlord, in spite of its reasonable efforts, is unable to
obtain the permits necessary to construct the shopping center, Landlord shall
have the right, in its unfettered discretion, to terminate this lease by giving
the Tenant 30 days prior written notice, whereupon, this Lease shall terminate
without any liability to either party and this Lease shall be of no further
force or effect.
Section 20.24 Tenant's Right of Termination
In the event that the Tenant despite its best efforts cannot obtain
approval from the applicable regulatory agencies or permits from the local
authority to operate a branch bank office on the premises, the Tenant shall have
the right, in its unfettered discretion, to terminate this lease by giving the
Tenant 30 days prior written notice, whereupon, this Lease shall terminate
without any liability to either party and this Lease shall be of no further
force or effect. Tenant's right to terminate this Lease shall expire and be of
no further force or effect as of June 1, 2005. Tenant agrees that it shall,
within 10 days of the execution of this Lease, submit all reasonably necessary
applications and supporting documentation to the applicable regulatory authority
for approval of a branch bank at the demised premises.
Section 20.25 Force Majeure
In any case where either party is required to do any act, the time for
performance thereof shall be extended by a period equal to any delay caused by
or resulting from an act of god, war, civil commotion, fire or other casualty,
labor difficulties, or other causes beyond such party's reasonable control,
whether such times be designated by a fixed time or a "reasonable time".
However, financial inability shall never excuse or permit a delay in
performance. This clause shall not be applicable to any payment of rent or other
charges due from the Tenant to the Landlord.
34
Section 20.26 Option Rent
Minimum rent for the first and second option terms, shall be an amount
equal to the fair market minimum rent (excluding the Common Area Maintenance and
Charge for Real Estate Taxes, which shall continue to be paid in addition to the
fair market minimum rent), for said five year option period, but in no event
less than the minimum rent payable (without abatement) for the last year of the
preceding term. If the parties are unable to agree upon such fair market rent
prior to four (4) months before the commencement of such option term, the matter
shall be referred to appraisal as set forth herein. Wherever the issue of fair
market rent shall be referred to appraisal, such appraisal shall be by three
disinterested appraisers, one to be appointed by the Landlord, one to be
appointed by the Tenant and the third to be appointed by the two appraisers so
named. The appraisers shall meet and discuss their views and vote on a fair
market rent. The decision of a majority vote of such appraisers as to the fair
market rent shall be rendered as promptly as possible and shall be conclusive
and binding upon the parties. The parties shall share equally the cost of such
appraisal procedure. Each individual appraiser shall have at least ten years of
experience in appraising fair market rents of comparable properties and shall
hold one or more of the following designations: MAI of the American Institute of
Real Estate Appraisers, SREA from the Society or Real Estate Appraisers or ASA
from the American Society of Appraisers.
Section 20.27 No Landlord's Lien
Nothing contained herein shall be construed to create a lien against
any assets of the Tenant.
WITNESS the execution hereof under seal in any number of counterpart
copies, each of which shall be deemed an original for all purposes as of the day
and year first above written.
Witness: EAGLEWOOD PROPERTIES, LLC
/s/ Xxxxxx Xxxx By: /s/ Xxxx Xxxxxxx
--------------------------- ---------------------------------
Its
Hereunto duly authorized
[LANDLORD]
Georgetown Savings Bank
Attest:
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------- ---------------------------------
Secretary Xxxxxx X. Xxxxxxxx, Its President
Hereunto duly authorized
[TENANT]
35
COMMONWEALTH OF MASSACHUSETTS
) ss.
COUNTY OF Middlesex )
March 4, 2005
--------------------
On this day, before me, personally appeared Xxxx Xxxxxxx who being by
me duly sworn, did say that he is Manager of Eaglewood Properties, LLC, A
Massachusetts limited liability Xxxxxxx; that said instrument was signed and
sealed on behalf of said company by authority of its Board of Directors; and
said Xxxx Xxxxxx acknowledged said instrument to be the free act and deed of
said corporation and said partnership.
/s Xxxx X. Xxxxxx
-------------------------------------
Notary Public
My Commission Expires: Sept. 12, 0000
XXXXXXXXXXXX XX XXXXXXXXXXXXX )
) ss.
COUNTY OF ESSEX )
February 24, 2005
--------------------
On this day, before me, personally appeared Xxxxxx X. Xxxxxxxx who
being by me duly sworn, did say that he is President of Georgetown Savings Bank;
that said instrument was signed and sealed on behalf of said bank by authority
of its Board of Directors; and said Xxxxxx X. Xxxxxxxx acknowledged said
instrument to be the free act and deed of said bank.
/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Notary Public Xxxxxx X. Xxxxxxxxx
My Commission Expires: June 16, 2005
36
3
ADDENDUM A
----------
This Addendum to Lease dated as of the 24th of February, 2005, by and
between Eaglewood Properties, LLC, a Massachusetts Limited Liability Company
having a mailing address of P. O. Xxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter referred to as the "Landlord") and Georgetown Savings Bank, a
federally charted savings bank with a principal place of business at 0 Xxxx Xxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as the
"Tenant");
WHEREAS, Landlord and Tenant have entered into a Lease of even date for
the rental of premises located at the Eaglewood Shops in North Andover,
Massachusetts ("Lease");
WHEREAS, Tenant desires to lease additional space within the shopping
center for the purpose of operating an ATM machine and night depository;
WHEREAS, the parties intend to incorporate the terms of the Lease into
this Addendum except as otherwise provided herein;
NOW, THEREFORE, the parties agree as follows:
1. The demised premises under the Lease shall include the ATM Space
shown on the attached Exhibit "A" and consisting of approximately 200 square
feet ("ATM Space").
2. The term of the Lease for the ATM Space shall be the same term as
the Lease, and in the event of any early termination or extension of the Lease,
Tenant's rights and obligations to occupy the ATM Space shall similarly be
extended or terminated as the case may be.
3. Tenant shall pay Landlord rent for the ATM Space as follows:
THE YEAR THE ANNUAL RENT THE MONTHLY RENT
-------- --------------- ----------------
1 - 3 $ 9,000.00 $750.00
4 - 6 $ 9,900.00 $825.00
7 -10 $10,800.00 $900.00
Option Rent Years 11 - 15 at Fair Market Value Rent
Option Rent Years 16 - 20 at Fair Market Value Rent
4. Minimum rent for the First and Second option term for the ATM Space
shall be an amount equal to the Fair Market minimum rent for said five-year
option period, but in no event less than the minimum rent payable without
abatement for the last year of the preceding period. If the parties are unable
to agree to such Fair Market Value Rent prior to four (4) months before the
commencement of such option term, the matter shall be referred to appraisal as
set forth herein. Whenever the issue of Fair Market Value Rent shall be referred
to appraisal, such
appraisal shall be by three (3) disinterested appraisers, one to be appointed by
the Landlord, one to be appointed by the Tenant and a third to be appointed by
the two (2) appraisers so named. The appraisers shall meet and discuss their
views and vote on a Fair Market Value Rent. The decision of a majority vote of
such appraisers as to the Fair Market Value Rent shall be rendered as promptly
as possible and shall be conclusive and binding upon the parties. The parties
shall share equally the cost of such appraisal procedure. Each individual
appraiser shall have at least ten (10) years of experience in assessing Fair
Market Value Rent of comparable properties and shall hold one or more of the
following designations: MIA of the American Real Estate Appraisers, SREA from
the Society of Real Estate Appraisers or ASA from the American Society of
Appraisers.
5. The ATM Space shall be used for the operation of an automatic teller
machine and/or night depository and for no other purposes.
6. Except as otherwise expressly provided herein, Tenant's rights and
obligations with regard to the use and occupancy of the ATM Space shall be
controlled by the terms of the Lease, including, but not limited to, the rights
and obligations as set forth in Articles II through XX of the Lease.
Notwithstanding the foregoing, Tenant is relieved of its obligation to pay Real
Estate Tax charges as set forth in Article VII of the Lease and Common Area
Maintenance charges under Article VIII of the Lease, it being the intention of
the parties that this is a gross lease.
7. Landlord shall construct the ATM Space in accordance with the
specifications and obligations as set forth in Exhibit "B" to the Lease, except
as noted below:
(a) Landlord shall have no duty to furnish the ATM Space with water,
sewer or gas;
(b) Landlord will install a one ton HVAC unit without distribution,
stubbed to the ATM Space;
(c) Landlord shall have no duty to install a service door;
(d) Landlord will install a store front with a single-entry door in
accordance with its typical storefront design; and
(e) Tenant shall be responsible for the installation of all signs.
8. Tenant shall be responsible for the completion of the remainder of
the ATM Space in accordance with the obligations imposed by Exhibit "B" of the
Lease.
2
IN WITNESS WHEREOF, the parties have executed this Addendum to the
Lease as to the day and year first written above.
EAGLEWOOD PROPERITES, LLC
GEORGETOWN SAVINGS BANK
By: /s Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- ---------------------------------
Xxxx Xxxxxx, its Manager Xxxxxx X. Xxxxxxxx, its President
