EXHIBIT (1O)(c)(4)
LEASE
THIS LEASE made this 2nd day of August, 1996, between SUPERIOR REALTY CO.,
INC., a Massachusetts corporation with a place of business at 000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Landlord") and THE HIBERNIA
SAVINGS BANK, a Massachusetts banking corporation with a principal office at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Tenant").
ARTICLE I
DEMISED PREMISES
Section 1.1. Landlord, in consideration for the rents to be paid and the
covenants and agreements to be performed and observed by Tenant, does hereby
lease unto Tenant and Tenant does hereby lease and take from Landlord those
certain parcels of land, containing approximately 38,857 square feet of land,
together with the building (the "Building") thereon, containing approximately
32,736 square feet of gross leasable area, all situated in the South Boston
district of Boston, Suffolk County, Massachusetts, more particularly described
in Exhibit A attached hereto and made a part hereof (the "Demised Premises").
(The term "Demised Premises" may include the land or the Building or both, as
the context may require or admit.)
ARTICLE II
Section 2.1 (a). Term of Lease. The term of this Lease shall be for a
period of twenty (20) years beginning on the earlier to occur of: (i) one
hundred twenty (120) days following the date upon which Landlord delivers
possession of the Demised Premises to Tenant; or (ii) the date upon which Tenant
opens the Demised Premises for business to the public. Landlord shall deliver
the Demised Premises to Tenant, in "as is" condition (subject to normal wear and
tear following the date of this Lease but "broom clean"), upon surrender and
yield up of the Demised Premises to Landlord by the current tenant thereof, the
term of whose lease expires on December 31, 1996.
Section 2.1(b). Lease Year. The term "lease year" shall mean each of the
successive calendar years which fall entirely in the term of this Lease, as it
may be extended. The last lease year shall be coterminous with the term, and may
therefore be less than twelve months long.
Section 2.2. Notice of Lease. Upon request of the other party, Landlord
and Tenant shall execute a recordable instrument containing a description of the
Demised Premises, a statement of the commencement and expiration dates of the
term, and a statement of Tenant's extension rights, if any.
Section 2.3. Extensions. Tenant shall have the right to extend the term of
this Lease, upon all of the terms, covenants and conditions contained in this
Lease, for a total of two (2) extension periods, each to be ten (10) years in
duration, by written notice sent to Landlord not less than one (1) year prior to
the expiration of the then current part of the term. [Once exercised, an
extension right shall be deemed to have been exhausted and shall not be
susceptible of revival as one of the "terms" contained in the Lease, to be
carried forward, unmodified, into the extended term.] Notwithstanding the
foregoing, in the event that Tenant shall not have given such notice at least
one (1) year prior to the expiration of the then current part of the term,
Tenant shall continue to have the ability to exercise such right of extension
until the earlier to occur of: (i) ten (10) months prior to the expiration of
the then current part of the term; or (ii) thirty (30) days following its
receipt of a reminder notice from Landlord of its failure to so extend, Landlord
representing that it shall endeavor (but
shall not be obligated) to send such reminder notice. Notwithstanding the above,
any extension right exercised by Tenant shall be void if, either at the time of
exercise or on the first day of a putative extension period, Tenant is in
default of any of its obligations hereunder beyond any applicable cure period or
has been served with a notice of default and the default in question then
remains uncured after expiration of the applicable grace period.
ARTICLE III
Section 3.1. Minimum Rent. Throughout the term of this Lease, and any
extension thereof, Tenant shall pay Minimum Rent for the Demised Premises to
Landlord without any abatement, deduction, counterclaim, or setoff, at the
yearly and monthly rates set forth below:
ANNUAL
MINIMUM MONTHLY
PERIOD RENT INSTALLATIONS
------------ ----------- -------------
Years 1-5 $170,000.00 $14,166.67
6-10 $187,000.00 $15,583.33
11-15 $205,700.00 $17,141.67
16-20 $226,270.00 $18,855.83
Minimum Rent, during each five year interval of any extension period set forth
in Section 2.3, shall reflect Current Market Rent, as hereafter defined, at the
beginning of the applicable five year interval. The phrase "Current Market Rent"
shall mean the rental and all other monetary payments and escalations that
Landlord could obtain from a third party desiring to lease space in the South
Boston area as of the applicable period, taking into account the type of
Building, the size, location and floor levels and then condition of the Demised
Premises, the quality of construction of the Building and of the Demised
Premises, the services provided under the terms of this Lease, including without
limitation any special rights hereunder and the rental then being attained for
new leases of space comparable to the demised premises in the South Boston area
but in no event less than the Minimum Rent for the year preceding such
extension. Landlord shall designate "Current Market Rent" by written notice to
Tenant within ninety (90) days following Landlord's receipt of Tenant's election
to extend the term of the Lease which notice may include data which Landlord
considers to support such designation ("Designation"). If Tenant disagrees with
the Designation, Tenant shall, by written notice sent to Landlord within fifteen
(15) days after such Designation, advise Landlord of such disagreement;
otherwise Tenant shall conclusively be deemed to have agreed to the Designation
of Current Market Rent. In the event that within sixty (60) days prior to the
applicable Adjustment Date the parties hereto shall not have agreed in writing
(or to be deemed to have agreed pursuant to the immediately preceding sentence)
as to the Current Market Rent, each party shall, within thirty (30) days
thereafter appoint an appraiser. Each appraiser so appointed shall be instructed
to determine independently the Current Market Rent. If the difference between
the amounts so determined by such appraisers shall not exceed ten percent (10%)
of the lesser of such amounts, then the Current Market Rent shall be an amount
equal to fifty percent (50%) of the total of the amounts so determined. If the
difference between the amounts so determined shall exceed ten percent (10%) of
the lesser of such amounts, then such two (2) appraisers shall have ten (10)
days thereafter to appoint a third appraiser, but if such appraisers fail to do
so within such ten (10) day period, then either Landlord or Tenant may request
the American Arbitration Association or any successor organization thereto to
appoint an appraiser within ten (10) days of such request, and both Landlord and
Tenant shall be bound by any appointment so made within such ten (10) day
period. If no such appraiser shall
2
have been appointed within such ten (10) days either Landlord or Tenant may
apply to any court having jurisdiction to have such appointment made by such
court. Any appraiser appointed by the original appraisers, by the American
Arbitration Association or by such court shall be instructed to determine the
Current Market Rent in accordance with the definition of such term contained
herein and within twenty (20) days after its appointment. If the third appraisal
shall exceed the higher of the first two appraisals, the Current Market Rent
shall be the higher of the first two appraisals; if the third appraisal is less
than the lower of the first two appraisals, the Current Market Rent shall be the
lower of the first two appraisals. In all other cases, the Current Market Rent
shall be equal to the third appraisal. All such determinations of the Current
Market Rent shall be final and binding upon Landlord and Tenant as the Current
Market Rent for the applicable Adjustment Date. Notwithstanding the foregoing,
if either party shall fail to appoint its appraiser within the 30 day period
specified above (such party being referred to herein as the "failing party"),
the other party may serve notice on the failing party requiring the failing
party to appoint its appraiser within ten (10) days of the giving of such
notice. If the failing party shall not respond by appointment of its appraiser
within said ten day period, then the appraiser appointed by the other party
shall be the sole appraiser whose determination of the Current Market Rent shall
be binding and conclusive upon Tenant and Landlord. This provision for
determination by appraisal shall be specifically enforceable to the extent such
remedy is available under applicable law, and any determination hereunder shall
be final and binding upon the parties except as otherwise provided by applicable
law. Each party shall pay for the fees and expenses of the appraiser appointed
by it, but the fees and expenses of the third appraiser shall be shared equally
by the parties. All appraisers appointed hereunder shall be MAI appraisers,
so-called.
The monthly rent installments shall be paid in advance on the first day of each
calendar month, and shall be prorated for any partial month on the basis of a
thirty (30) day month. The Minimum Rent shall be over and above all other
additional payments to be made by Tenant as hereinafter provided, and shall be
absolutely net to Landlord, so that this Lease shall yield, net, to Landlord
such net basic rental as aforesaid.
Section 3.2.1. Interest. If any amount payable to Landlord under this
Lease (including, without limitation, any monthly rent installment) is not
received by Landlord within ten (10) days after receipt by Tenant of written
notice of such neglect or failure, Tenant shall, promptly upon receipt of
Landlord's xxxx therefor, pay Landlord interest on the unpaid amount, calculated
from the original due date thereof, at the rate of (i) 12% per year or (ii) an
annual rate which is two percentage points greater than the "discount rate",
so-called, charged by the Federal Reserve Bank of Boston for loans to member
banks, which discount rate is in effect on the due date for the payment in
question, whichever of those two stated rates [that in (i) or that in (ii)]
shall be the higher, except that (iii) if the highest annual interest rate
permitted by applicable law (the "legal rate") is lower than a stated rate
appearing in (i) or (ii), the legal rate shall be substituted for each higher
stated rate before determining which interest rate is to be applied in computing
Tenant's liability hereunder. Notwithstanding the foregoing, it is expressly
agreed and understood that interest shall begin to accrue from the original due
date of any such obligation, without either notice from Landlord or a ten (10)
day grace period within which Tenant may pay without the imposition of interest,
in the event that Tenant fails to pay any obligation when due in accordance with
the terms and provisions of this Lease more than two (2) times in any twelve
(12) month period.
3
Section 3.2.2. Late Charge. Tenant acknowledges that any default in the
timely payment of any sum due to Landlord, including, without limitation, the
monthly rent installments, will result in additional expense to Landlord, to
verify the default and collect the defaulted payment. Tenant acknowledges
further that the actual cost to Landlord in each particular case will vary
according to the circumstances of the case and that the determination of the
precise cost would, in itself, result in considerable expense. Accordingly, if
any amount payable to Landlord under this Lease (including, without limitation,
any monthly rent installment) is not received by Landlord within ten (10) days
after receipt by Tenant of written notice of such neglect or failure, promptly
upon receipt of Landlord's xxxx therefor, shall pay Landlord a late charge of
Two Hundred ($200.00) Dollars with respect to the delayed or defaulted payment,
as liquidated damages in lieu of the actual amount of expense and other damages
[other than the defaulted payment(s)] incurred and suffered by Landlord by
reason of the delay or default in payment, and not as a penalty or as additional
interest. Notwithstanding the foregoing, it is expressly agreed and understood
that a late charge shall begin to accrue from the original due date of any such
obligation, without either notice from Landlord or a ten (10) day grace period
within which Tenant may pay without the imposition of a late charge, in the
event that Tenant fails to pay any obligation when due in accordance with the
terms and provisions of this Lease more than two (2) times in any twelve (12)
month period.
Section 3.3. Other Payments. Each payment or expenditure which Tenant must
make to Landlord under any provision of this Lease shall be deemed to be
Additional Rent, and Landlord's rights in the event Tenant defaults in making
any such payment or expenditure shall be the same as in the case of a default in
paying the Minimum Rent.
Section 3.4. Address of Payments. All rents and other charges payable to
Landlord pursuant to the provisions of this Lease shall be sent to Landlord, at
000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 unless Landlord
otherwise directs by written notice to Tenant.
Section 3.5. Net Lease. This Lease shall be deemed and construed to be an
absolutely net lease and, except as herein otherwise expressly provided,
Landlord shall receive Minimum Rent and Additional Rent absolutely free from any
charges, assessments, impositions, setoffs, expenses or deductions of any and
every kind or nature whatsoever.
ARTICLE IV
Section 4.1. Contingency. This Lease is subject to Tenant's obtaining,
within one hundred and twenty (120) days following the date of execution of this
Lease, all authorizations and consents from the appropriate officials, boards or
other governmental bodies necessary to allow Tenant to maintain and use the
Demised Premises for a branch banking facility of the Tenant by the Office of
the Controller of the Currency and by all other banking regulatory authorities
(all of the same being hereinafter referred to collectively as
"Authorizations"). Tenant warrants to Landlord that it shall file applications
for all such Authorizations as soon as possible, but in no event later than
thirty (30) days following the complete execution of this Lease, and Tenant
shall proceed with all due diligence in order to obtain such Authorizations. No
Authorization shall be deemed obtained until all appeal periods from the
issuance thereof have elapsed without any appeal being taken or if any appeal
has been taken, the appeal has been resolved in favor of the Tenant. In the
event the Authorizations have not been obtained by such date, Landlord and
Tenant shall each have the right to terminate this
4
Lease, upon written notice to the other received within ten (10) days following
such contingency date.
ARTICLE V
Section 5.1(a). Real Estate Taxes. Tenant shall pay directly to the
applicable taxing authority within fifteen (15) days after receipt of a xxxx
therefor, the entire amount of any real estate tax imposed with respect to or
attributable to, any improvement to the Demised Premises or the Building made by
Tenant (including without limitation, Tenant's exterior signs).
Section 5.1(b). Tenant shall be liable for and shall pay all taxes levied
against personal property and trade fixtures owned or placed by Tenant in or
upon the Demised Premises.
Section 5.2. As Additional Rent, Tenant shall pay directly to the
applicable taxing authority an amount equal to all real estate taxes and other
governmental charges or impositions which shall or may be assessed upon the said
Demised Premises after the commencement of and during the term hereof, payable
upon being billed therefor. Tenant may, in good faith and diligently, contest
the validity or amount of any tax or betterment assessment which, under the
terms hereof, it is required to pay, and Landlord agrees that Tenant may, if it
shall so elect, commence in the name of Landlord, or in its own name, but at the
sole expense; and for the sole benefit of Tenant, any legal proceedings to
contest the validity or amount of any such tax or betterment assessment, or for
a refund or a rebate, and execute any instruments that may be reasonably
required therefor by Tenant. Nothing herein contained shall be construed to
permit postponement of any payments required hereunder.
Section 5.3. The term "real estate taxes" as used in this Lease shall mean
regular taxes, betterments and other special assessments, flat-rate water and
sewer charges, and all other governmental levies made with respect to real
property and payable by owners of such property, without regard to the identity
of the authority making the impost, but no other governmental imposition shall
be deemed a part of the "real estate taxes" unless the system of taxation is
changed with the result that the whole or a determinable part of the taxes
defined above as "real estate taxes" will be replaced by a tax or taxes imposed
on owners of real property with respect to that property in a form not included
in the foregoing definition, or with the result that a tax in a form not
included above as a part of "real estate taxes" is imposed in addition to "real
estate taxes" as defined above and presently imposed on owners of real property
with respect to that property. If any such change in the tax system takes place,
each such alternative tax and each such additional tax (as well as any other
taxes which were already considered a part of "real estate taxes" for the
purposes of this Lease and which continue to be imposed) shall be considered a
part of "real estate taxes" for the purposes of this Lease, subject only to the
requirements that (a) such alternative or additional taxes have materially
different applicability to the owners of real property, or to real property, or
to the income derived from real property than they do to owners of other kinds
of property, to other kinds of property or to other kinds of income, and (b) the
amount includable in real estate taxes attributable to the demised premises for
a tax year on account of any such alternative or additional tax shall be no
greater than would be the case if the demised premises were the only property of
Landlord subject to such alternative or additional tax.
Section 5.4. Tenant's liability to Landlord under the provisions of
Section 5.2 for any tax year not falling entirely within the term shall be
prorated, on the basis of a 365-day year, to reflect the portion of the tax year
which falls within the term.
5
Section 5.5. Tenant shall, with respect to all payments of real estate
taxes in accordance with the provisions of this Article V, provide evidence of
payment of such taxes to Landlord as soon as possible following payment thereof,
but in no event later than thirty (30) days thereafter.
ARTICLE VI
Section 6.1. Common Facilities Maintenance. During the entire term of this
Lease and any extensions thereof, Tenant shall keep the parking areas,
sidewalks, driveways, entrances, exits and other like areas (together the
"Common Facilities") in a reasonably neat, clean and orderly condition. Tenant
shall also keep the parking areas, driveways, entrances, exits and other like
areas in reasonable repair. These obligations on the part of Tenant shall,
without limiting the generality thereof, include the following:
(i) maintaining the surfaces of the parking areas, driveways, entrances,
exits and other like areas in a reasonably level and smooth
condition (Landlord and Tenant recognize that the sidewalks
surrounding the Demised Premises are maintained by the City of
Boston and, accordingly, neither Landlord nor Tenant has the
obligation to make repairs thereto);
(ii) clearing snow, ice and debris and sweeping the sidewalks, parking
areas, driveways, entrances, exits and other like areas to the
extent necessary to keep said areas in a reasonably clean and
orderly condition; and
(iii) placing, keeping in repair, and replacing any necessary appropriate
direction signs, markers and lines; and operating, keeping in repair
and replacing when necessary such artificial lighting facilities as
shall be reasonably required during the hours which the Demised
Premises (or any portion thereof) may be open for business.
Notwithstanding the foregoing, it is expressly agreed and understood that
Landlord shall pay to Tenant, within fifteen (15) days following Landlord's
receipt of fully executed mechanic's lien waivers and substantiating bills
marked "paid", a sum not to exceed Ten Thousand ($10,000.00) Dollars as
consideration for either: (i) repaving the parking areas, driveways, entrances,
exits and other like areas; or (ii) filling any potholes and placing the parking
areas, driveways, entrances, exits and other like areas in a reasonably level
and smooth condition.
Section 6.2. It is specifically understood and agreed that Landlord shall
have no obligation or liability whatsoever in connection with the maintenance or
management of the Common Facilities. Tenant, and not Landlord, shall have care,
custody and control of the Demised Premises, including, without limitation, the
Common Facilities, and Tenant shall manage, operate and maintain the Common
Facilities or cause the same to be done on its behalf.
Section 6.3. Liability Insurance. Throughout the term of this Lease,
Tenant, at its own expense, shall maintain with respect to the Demised Premises,
including without limitation, the Common Facilities, comprehensive general
liability insurance with a single limit of at least $2,000,000.00 with respect
to bodily injury and property damage, all in companies qualified to do business
in Massachusetts. Landlord shall have the right to require Tenant to increase
said coverage limit; provided however, such limit of liability shall not be
increased more frequently than annually and shall be in accordance with good
property
6
management practice. All such liability insurance maintained by Tenant shall
name Landlord as an additional named insured.
Section 6.4. Intentionally omitted.
Section 6.5. Tenant's Certificates. Tenant shall deliver to Landlord on or
before the first day of the term [and thereafter at least thirty (30) days prior
to the expiration of each such policy] a certificate of each policy of insurance
required to be maintained by Tenant under the provisions of Section 6.3. No such
policy of insurance shall be cancelled or changed nor shall the coverage of any
such policy be reduced without at least thirty (30) days' prior written notice
to Landlord, and each policy shall so provide.
ARTICLE VII
Section 7.1. Casualty Insurance. Tenant shall, throughout the term of this
Lease:
A. Keep all buildings on the Demised Premises insured under an all-risk
policy, so called, insuring against loss or damage by at least fire, lightning,
windstorm, hail, explosion, riot, riot attending a strike, and civil commotion,
damage from aircraft and vehicles, and smoke damage, and such other risks and
perils as Landlord may reasonably determine, in amounts at least sufficient to
prevent Landlord or Tenant from becoming a coinsurer within the terms of the
applicable policies and in any event equal to the full insurable value thereof;
B. Keep all buildings on the Demised Premises insured against war risks as
and when such insurance is obtainable and a state of war or national or public
emergency exists in the maximum amount then available;
C. Keep all buildings on the Demised Premises insured against loss or
damage (i) from leakage of sprinkler systems, if and so long as installed in
said buildings, and (ii) by explosion of steam boilers, pressure vessels or
similar apparatus, each in such amount and in such form as Landlord may deem
reasonable;
The term "full insurable value" shall mean the actual replacement cost
(excluding foundation and excavation costs) without deduction for physical
depreciation and said "full insurable value" shall be determined from time to
time at the request of either Landlord or Tenant (but not more frequently than
once in every twelve (12) months' period) by an architect, contractor,
appraiser, appraisal company, or one of the insurers, in any such case selected
and paid by the requesting party and acceptable to Landlord and the holder of
any mortgage on the Demised Premises.
Section 7.2. Subrogation Waiver - Tenant. Each policy of insurance
maintained by Tenant (whether or not required under the provisions of this
Lease) with respect to Tenant's business or property therein shall include
provisions by which the insurance carrier(s) [a] waive(s) all rights of
subrogation against Landlord (and against all persons for whose actions Landlord
may be legally responsible) on account of any loss payable under the policy and
[b] agree(s) that the policy will not be invalidated because the insured (in
writing and prior to the occurrence of any loss under the policy) has waived
part or all of its right(s) of recovery against any party on account of any loss
or damage covered by the policy, or because of the act or negligence of Tenant
or anyone for whom Tenant may be legally responsible, or because of the prior
agreement of the parties regarding the application of the proceeds of the
insurance. If Tenant is unable to procure the inclusion of all of the provisions
described in subdivisions [a] and [b] of the next-preceding
7
sentence, Tenant shall name Landlord as an additional insured in the policy.
Section 7.2.1. Waiver of Tenant's Claims. Tenant hereby waives any and all
rights of recovery which it might otherwise have against Landlord, its agents,
employees, contractors and all other persons for whose actions Landlord may be
legally responsible, for any loss or damage to Tenant's business or property in
the Demised Premises or the Building, which business or property are either
required to be insured under the terms of this Lease or which Tenant, in the
absence of any such requirement, elects to insure, notwithstanding that the loss
or damage may result from the negligence, willful act or default under the terms
of this Lease of Landlord, its agents, employees, contractors, or other persons
for whose actions Landlord may be legally responsible.
Section 7.2.2. Landlord's Waiver of Claims. Landlord hereby waives any and
all rights of recovery which it might otherwise have against Tenant, its agents,
employees, contractors and all other persons for whose action Tenant may be
legally responsible, for any loss or damage to the Demised Premises, the
Building or Landlord's business or property therein, which are covered by any
policy of insurance maintained by Landlord, even though that loss or damage
results from the negligence, willful act or default under the terms of this
Lease of Tenant, its agents, employees, contractors or other persons for whose
actions Tenant may be legally responsible.
Section 7.2.3. Subrogation Waiver - Landlord. Landlord agrees that the
insurance policies maintained by it with respect to the Demised Premises or the
Building and Landlord's business and property therein, if any, shall contain
provisions or endorsements substantially similar to those described in
subdivisions [a] and [b] of the first sentence of Section 7.2, so that Tenant's
liabilities shall be limited in the same manner as Landlord's liabilities are to
be limited pursuant to the provisions of Section 7.2 and its several subsections
and subdivisions.
Section 7.3. All insurance provided for in this Article shall be effected
with insurers, authorized to do business in Massachusetts under valid and
enforceable policies, and such policies shall name Landlord as an additional
insured, and contain a standard loss payable endorsement to a mortgagee, if any.
All policies of insurance provided for in this Article shall provide (a) that
such policies shall not be cancelled without at least fifteen (15) days' prior
written notice to each assured named therein and to the holder of any mortgage
to whom loss thereunder may be payable, and (b) that any loss shall be payable
to Landlord or to the holder of any mortgage, notwithstanding any act or
negligence of Tenant (or of the Landlord), in case of any loss payable to the
holder of any mortgage) which might otherwise result in forfeiture of said
insurance.
Section 7.4. Insured Parties - Tenant's Insurance. Each policy of
insurance maintained by Tenant with respect to the Demised Premises or the
Building or its business or property, whether or not required by this Lease,
shall name Landlord an additional named insured, except for insurance policies
containing the endorsements provided for in Section 7.2[a] and 7.2[b]. It is
understood and agreed that the designation of the additional insured parties is
intended to afford to those parties the same protection against claims as is
normally afforded to the insured person procuring the policy by the usual terms
of the customary casualty and liability insurance policies Tenant is required to
maintain or provide for under the terms of this Lease. It is not intended that
any person named as insured by any such policy shall, by virtue of such
designation alone, be entitled to share in any payments made under that policy,
and
8
(except in the event that Tenant does not restore the property covered thereby)
Landlord agrees to endorse (without recourse) and deliver to Tenant any check or
draft for any payment under any such policy, which check or draft was made
payable to Landlord solely by virtue of a designation as an additional insured
in accordance with the requirements of this Section or of Section 7.2.
Section 7.5. Tenant's Reports. From time to time, as Landlord may
reasonably require, but not more often than annually, Tenant shall deliver to
Landlord a complete and accurate list of all insurance coverage maintained by
Tenant with respect to the Demised Premises, the Building, or the property or
business of Tenant or Landlord, whether or not the insurance coverage is
required. That list shall include for each policy (a) the policy number, (b) the
name of the carrier, (c) the amount and (in detail) the type of coverage, (d)
the expiration date and the date to which the premium has been paid, (e) the
names of those persons designated as insured, and a reasonably detailed
description of each endorsement on each policy.
Section 7.6. Payment By Tenant. Tenant warrants to Landlord that Tenant
shall pay, on or before the due date(s) thereof, the entire cost of the premiums
for all of the insurance required to be maintained by Tenant pursuant to the
provisions of this Article VII.
ARTICLE VIII
Section 8.1. Condition of Premises. The Demised Premises are demised to
Tenant "broom clean" but in "as is" condition (subject to normal wear and tear
following the date of this Lease), without warranty of fitness for use or
occupation whatsoever, express or implied, Tenant expressly (i) acknowledging
that it has inspected the Demised Premises to the extent desired by Tenant; and
(ii) waiving any rights it may have under any warranty which is created by
statute or otherwise. Tenant agrees that Landlord shall have no obligation to
perform any work of construction or repair to render the Demised Premises fit
for use or occupation, or for Tenant's particular purposes or to make them
acceptable to Tenant.
ARTICLE IX
Section 9.1. Use. Tenant shall have the right to use or occupy the Demised
Premises for any lawful purpose or purposes. Notwithstanding the foregoing,
Tenant shall not have the right to use or occupy the Demised Premises: (i)
during the first lease year, as a food market; or (ii) at any time during the
Lease term, as a pinball, video game, or any other form of entertainment arcade;
a gambling or betting office, other than for the sale of governmentally issued
lottery tickets; a massage parlor; a cinema, video store or bookstore selling,
renting or exhibiting primarily material of a pornographic or adult nature; an
adult entertainment bar or club; a facility offering live entertainment of any
kind; a billiards parlor or pool hall; a flea market; or any purpose or business
which is obnoxious or offensive because of the emission of noise, smoke, dust or
odors.
Section 9.2. Trash Removal. Throughout the term hereof, Tenant agrees to
store all trash and refuse in closed containers at locations as may be agreed to
by Landlord and Tenant (which agreement shall not be unreasonably withheld or
delayed), and to dispose of the trash and refuse as is customary in well-run
businesses of the type operated by Tenant, and to keep the Demised Premises and
all appointments therein reasonably neat and clean.
Section 9.3. Exterior Signs. Subject to applicable laws and regulations,
Tenant may erect at such locations as Tenant may
9
request and as Landlord may agree, which agreement shall not be unreasonably
withheld or delayed by Landlord, exterior signs advertising only the business
conducted upon the Demised Premises.
ARTICLE X
Section 10.1. Landlord's Repairs. Landlord has, and shall have, no
repair or replacement obligations whatsoever under this Lease, except as
provided in Section 10.2(b).
Section 10.2(a). Tenant's Repairs. Subject to the provisions of Section
10.2(b) of this Lease, and except for reasonable wear and tear, Tenant shall, at
its cost and expense, make all structural and nonstructural repairs, exterior or
interior, ordinary as well as extraordinary, foreseen and well as unforeseen,
reasonably required to keep the interior and exterior of the Building, the
Common Facilities and lighting facilities, in good order, repair and condition.
Tenant shall also keep in good order and repair the mechanical systems, utility
lines, pipes and conduits which serve the Demised Premises. Tenant may be
self-insured with respect to damage to glass, but shall make all repairs
necessary to keep the glass whole.
Section 10.2(b). If the Building roof, any of the structural portions of
the Building shall be in need of repair to put them in good order, repair and
condition (or shall require replacement because repairs are no longer
effective), and the repair or replacement become necessary during the first
twenty (20) years of the Lease term except in the event of: (i) the act, default
or negligence of Tenant, or of its agents, invitees, licensees or contractors;
or (ii) casualty or accident, then, after receipt of notice from Tenant of the
necessity therefor, Landlord, and not Tenant, shall make the needed repair or
replacement.
Section 10.3. Alterations; Additions. Except for Tenant's initial work
prior to its opening for business, Tenant shall not make any alterations,
additions, or improvements without Landlord's prior written approval therefor in
or to the Demised Premises, except for "permitted changes," which are hereby
defined as improvements which do not change the perimeter of the Demised
Premises, which do not involve or affect the roof or structure or any structural
members of the Demised Premises. Tenant shall give Landlord prior written notice
of any proposed permitted change which is anticipated by Tenant to cost more
than Fifty Thousand ($50,000.00) Dollars, describing it in reasonable detail.
All permitted changes and other improvements shall become a part of the realty
unless Landlord requires their removal at the end of the term.
Section 10.4. Work by Tenant. With respect to any repairs, construction,
restoration, replacement or alterations performed upon the Demised Premises by
Tenant during the term hereof under this Lease, Tenant agrees that:
A. No work in connection therewith shall be undertaken until Tenant
shall have procured and paid for, so far as the same may be
required, from time to time, all municipal and other governmental
permits and authorizations of the various municipal departments and
governmental subdivisions having jurisdiction, and Landlord agrees
to join in and execute the application of such permits or
authorizations whenever such action is necessary;
B. (1) All work in connection therewith shall be done promptly and in
good and workmanlike manner and in compliance with the building,
zoning and all laws and regulations of the municipality or other
governmental
10
subdivisions having jurisdiction, and in accordance with orders,
rules and regulations of any company or association insuring the
premises; the cost of any such work shall be paid when due so that
the Demised Premises and Tenant's leasehold shall at all times be
free of liens for labor and materials supplied or claimed to have
been supplied to the Demised Premises; the work shall be prosecuted
with reasonable dispatch, unavoidable delays excepted; (2) Worker's
compensation insurance covering all persons employed in connection
with the work and with respect to whom death or bodily injury claims
could be asserted against Landlord, Tenant or the Demised Premises,
and general liability ("builder's risk") insurance (specifically
covering this class of risk) naming Tenant as insured and Landlord
as additional named insured for the mutual benefit of Landlord and
Tenant, and also, if Landlord so requires, for the benefit of any
holder of any first mortgage, with a single limit not less than One
Million ($1,000,000.00) Dollars for bodily injury and for property
damage, shall be maintained by Tenant at Tenant's cost and expense
at all times when any substantial work is in process. The general
liability insurance provided for in this subsection may be effected
by an appropriate endorsement, if obtainable, upon the insurance
referred to in Section.6.3. All such insurance shall be effected
with insurers authorized to do business in Massachusetts, and all
policies or certificates therefor issued by the respective insurers
shall be delivered to Landlord endorsed "premium paid" by the
company or agency issuing the same or with other evidence of payment
of the premiums satisfactory to Landlord, and further provide that
such policy may not be cancelled or changed without at least ten
(10) days' prior notice in writing to Landlord.
Section 10.5. Tenant shall not suffer or permit any mechanics' liens to be
filed or exist against the fee of the Demised Premises nor against Tenant's
leasehold interest by reason of work, labor, services or materials supplied or
claimed to have been supplied to Tenant or anyone holding the Demised Premises
or any part thereof through or under Tenant. If any such mechanics lien shall at
any time be filed or arise against the Demised Premises, Tenant shall, within
thirty (30) days after notice of the filing thereof, cause the same to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such lien to be
discharged within the period aforesaid, then, in addition to any other right or
remedy of Landlord, Landlord may, but shall not be obligated to, discharge the
same by procuring the discharge of such lien by deposit or by bonding
proceedings, and in any such event Landlord shall be entitled, if Landlord so
elects, to compel the prosecution of an action for the foreclosure of such
mechanics' lien by the lienor and to pay the amount of the judgment for and in
favor of the lienor with interest, costs and allowances. Any amount paid by
Landlord for any of the aforesaid purposes with interest thereon at the rate of
two (2) points greater than the then prime rate of the Bank of Boston from the
date of payment shall be repaid by Tenant to Landlord on demand, and if unpaid
may be treated as additional rent as provided hereunder. Nothing in this Lease
contained shall be deemed or construed in any way as constituting the consent or
request of the Landlord, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific improvement,
alteration or repair of or to the Demised Premises or any part thereof, nor as
giving Tenant a right, power or authority to contract for or permit the
rendering of any services or the furnishing of any
11
materials that would give rise to the filing of any mechanics liens against the
fee of the Demised Premises.
Section 10.6. All non-removable improvements and alterations and all
building service equipment made or installed by or on behalf of Tenant (but not
trade fixtures and equipment) shall immediately upon completion or installation
thereof be subject to this Lease and, upon the expiration or earlier termination
thereof, become the property of Landlord without payment therefor by Landlord.
ARTICLE XI
Section 11.1. Rent Payments. Tenant shall pay the Minimum Rent and all
other charges payable by it hereunder, without deduction or set-off of any kind
except as may be specifically set forth herein, at the times and in the manner
provided herein to Landlord at 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000 or to such other address as Landlord may direct.
Section 11.2. Utilities. Tenant shall pay for all utility service charges
as well as all sewer, fire-pipe, water, water stand-by and other charges which
are attributable to the Demised Premises, without regard to the standards by
which the charges are measured, except to the extent any such charge is included
as part of the "real estate taxes" on the Demised Premises. From and after the
delivery of the Demised Premises to Tenant, Tenant shall be responsible for
maintaining sufficient heat in the Demised Premises to preclude the freezing of
water in the pipes and fixtures.
Section 11.3. Condition of Premises. Tenant shall keep and maintain the
interior of the Demised Premises and the show windows in neat and clean
condition. Tenant shall keep the Demised Premises equipped with all safety
appliances which, because of Tenant's use, may be required by any governmental
authority, and Tenant shall keep the drains empty and clean. Tenant shall comply
with the orders and regulations of all governmental authorities having
jurisdiction and conform to all rules and regulations of the local Board of Fire
Underwriters and similar bodies. Tenant shall install all fire-fighting and
fire-prevention equipment required by any such authority, Board or body. Tenant
shall procure and keep in good standing any licenses and permits required for
any use made of the Demised Premises. Tenant shall, at Tenant's sole cost and
expense, comply with all of the requirements of all county, municipal, state,
federal and other applicable governmental authorities, now in force, or which
may hereafter be in force, pertaining to the Demised Premises and shall
faithfully observe in the Demised Premises all municipal and county ordinances
and state and federal statutes now in force or which may hereafter be in force.
Section 11.3.1. Yield Up. At the end of the term, Tenant shall peaceably
yield up to Landlord the Demised Premises and all alterations, additions and
changes made to or upon the same in good order, repair and condition in all
respects, except for damage resulting from fire, casualty, taking by eminent
domain, or act of or pursuant to public authority, and reasonable wear and tear.
Section 11.3.2. Tenant's Fixtures. All counters, shelving and other
equipment and all other trade fixtures installed by or at the expense of Tenant
and all erections, additions and/or improvements not affixed to the Building and
not used in the operation of the Building, made to, in or on the Demised
Premises by and at the expense of Tenant and susceptible of being removed from
the Demised Premises or the Building without damaging in any manner the
structure of such Building, shall remain the property of Tenant and Tenant shall
(unless authorized by Landlord to abandon the same) remove the same or any part
thereof at any time
12
or times during the term hereof, provided that Tenant, at its sole cost and
expense, shall make all repairs occasioned by such removal. Notwithstanding the
foregoing provisions of this Section, however, Landlord shall have the right to
dispose of Tenant's goods and effects in the manner set forth in Section
13.4.
Section 11.3.3. Landlord's Fixtures. Notwithstanding' anything in Section
11.3.2 contained, the following fixtures shall be and remain the property of
Landlord as part of the Demised Premises: HVAC systems; boiler system; light
fixtures; and any other equipment affixed to the Building and parking areas
which is necessary to the physical operation of the Demised Premises. Landlord's
fixtures shall not be deemed to include Tenant's (or any subtenant's) trade
fixtures and equipment.
Section 11.4. Improper Use. Tenant shall not conduct any auction sale or
"going out of business" sale on the Demised Premises unless it is, in fact,
going out of business; nor injure, overload, or deface the Demised Premises; nor
make any use thereof which is improper, offensive or contrary to any law or
ordinance; or any act or thing which shall constitute a nuisance or which may
make void or voidable any insurance covering the Demised Premises; nor cause or
permit the emission of any noise or odor from the Demised Premises by the
operation of any instrument, apparatus or equipment thereon.
Section 11.4.1. If Tenant violates the prohibition against auction sales
or going out of business sales or any of the prohibitions against any of the
several forms of objectionable behavior referred to in Section 11.4, (including,
without limitation, the emission of noise or objectionable odors), or if Tenant
shall fail to terminate the objectionable behavior immediately upon Landlord's
notice to do so, Landlord shall be entitled, then or at any time thereafter, to
pursue the remedies provided in Article XIII for a Condition of Default.
Section 11.5. Intentionally omitted.
Section 11.6. Landlord's Entry. Tenant shall permit Landlord to examine
the Demised Premises at reasonable times and to show the same to prospective
purchasers, lenders, tenants and occupants. Landlord may also enter the Demised
Premises, without charge, to make such repairs, improvements, alterations or
additions as may be necessary in order to comply with the requirements imposed
on Landlord by this Lease, if any, or by any public authority having
jurisdiction of the premises, and to facilitate making repairs required of
Tenant which Tenant has failed to make promptly, and to exercise any of
Landlord's rights under this Lease, and for any of such purposes Landlord shall
have the right to use or occupy without charge such portion of the Demised
Premises as may be reasonably necessary therefor. Landlord shall not, in the
course of any such entry, unreasonably interfere with the conduct of business in
the Demised Premises. In exercising its rights set forth in this Section 11.6,
it is expressly agreed and understood that (except in the event of an emergency)
Landlord shall provide forty-eight (48) hours' prior notice to Tenant and, for
so long as Tenant uses the Demised Premises for the operation of a bank
facility, shall comply with Tenant's security requirements.
Section 11.7. Tenant's Property and Leasehold Improvements. Tenant
covenants and agrees that all personal property and leasehold improvements of
Tenant (and of those claiming under Tenant), which is on the Demised Premises
shall be so at Tenant's sole risk, and Landlord shall not be liable for any
damage thereto unless caused by the act, negligence, or default under this Lease
by Landlord or its agents, licensees or contractors. Without limiting the
foregoing, Tenant agrees that Landlord shall not be responsible or liable to
Tenant, or to those claiming by,
13
through or under Tenant, for any loss or damage that may be occasioned by or
through the acts or omissions of other persons, or for any loss or damage
resulting to Tenant or those claiming by, through or under Tenant, or to its or
their property, from the bursting, stopping, leaking or breaking of electric
cables or wires, or water, gas, sewer or steam pipes or other utility lines,
fixtures, facilities or components.
Section 11.8. Tenant's Indemnity. Subject to any limitation imposed by law
and excepting any loss or damage caused by the act, negligence or default under
this Lease by Landlord or its agents, licenses or contractors, Tenant covenants
and agrees to defend Landlord and to save Landlord harmless and indemnified from
and against any and all claims, actions, loss, damages, liability and expense in
connection with loss of life, personal injury and damage to property, whether
arising out of or resulting from any occurrence in the Demised Premises, or out
of or from the occupancy or use by Tenant (or anyone claiming under or through
Tenant) of the Demised Premises or any part thereof, or out of or from any work
undertaken by Tenant (or on Tenant's direct or indirect authority) under this
Lease, or out of or from any occurrence elsewhere which is occasioned wholly or
partly by or which is in any way connected with (a) any failure to perform any
obligation imposed on Tenant by this Lease or any breach of any such obligation,
or (b) any act, neglect, or omission of Tenant, its agents, contractors,
employees, licensees or concessionaires, or of any other person occupying space
in the Demised Premises; and from and against all costs, expenses and
liabilities incurred in connection with any claim or action or proceeding
brought thereon; and in case any action or proceeding be brought against
Landlord or against the holder of any first mortgage covering the Demised
Premises by reason of any such claim, Tenant upon notice from Landlord or such
holder covenants to resist or defend such action or proceeding, and to employ
counsel selected by the insurance companies carrying the risk, or other counsel
reasonably satisfactory to Landlord.
Section 11.9.1. Assignment. Tenant shall have the right to assign this
Lease in accordance with the requirements of Section 11.10.
Section 11.9.2. Tenant shall have the right to sublet the whole or any
part of the Demised Premises; provided that, as a condition thereto, Tenant
shall notify Landlord, promptly upon receipt of a written request therefor, of
the identity of all such subtenants within the Demised Premises. Notwithstanding
any assignment or subletting, in any event, Tenant shall remain primarily liable
on this Lease, and not as a guarantor or surety.
Section 11.10. Tenant shall send to Landlord a notice of assignment which
shall contain (i) the identity and address of the proposed assignee and of any
proposed guarantor, and (ii) a detailed description of the use of the Demised
Premises to be made by the proposed assignee.
Section 11.11. Tenant acknowledges and agrees that, in any event, each
assignee of Tenant shall be required to execute an assignment, assumption and
attornment instrument reasonably satisfactory to Landlord.
ARTICLE XII
Section 12.1. Insurance. The casualty insurance which Tenant is required
to maintain hereunder is set forth in Article VII.
Section 12.2. Termination Rights; Fire. Tenant shall have the right to
terminate this Lease, if the Building is destroyed or damaged by fire or other
insured casualty to the extent of at least twenty five (25%) percent or fifteen
(15%) percent of the
14
total cost of replacing it, during the second-last or last year, respectively,
of the original term or of an extension period. Such termination right under
this Section shall be exercised by written notice to the Landlord received
within thirty (30) days after the occurrence of the destruction or damage. Any
termination notice sent by Tenant shall take effect thirty (30) days after
mailing thereof.
Section 12.3(a). Taking. If, after the execution of this Lease, the whole
of the Demised Premises, or the whole (or an undetermined portion) of the
remainder of the original term or of the then current extension period is taken
by eminent domain by any public, quasi public or private authority, or is
otherwise appropriated (without a formal taking) pursuant to public authority,
this Lease shall terminate on the date Landlord is divested of its title to the
Demised Premises, or the date Tenant is divested of the lessee interest herein.
Section 12.3(b). If, as the direct or indirect result of any such taking
by eminent domain or any act of or pursuant to public authority, any of the
conditions described below shall come into existence after the execution of this
Lease, Tenant shall have the right to terminate this Lease by written notice to
Landlord, as provided below. Such termination shall take effect as of the date
on which the event giving rise to the termination right occurred.
(i) The aggregate of all reductions in the ground floor of the Building
resulting from all such takings and acts equals or exceeds fifteen
(15%) percent of the original ground floor area of the Building;
(ii) The aggregate of all reductions in the paved parking areas of the
Demised Premises resulting from all such takings and acts equals or
exceeds forty (40%) percent of the original capacity thereof,
measured by the number of parking stalls.
Section 12.3(c). Notices. The termination right under Section 12.3(b)
shall be exercised by written notice to Landlord received within thirty (30)
days after date of the relevant taking.
Section 12.4. Restoration. If the Building or the parking areas shall be
damaged or destroyed by fire or other casualty or damaged, destroyed or
appropriated by any such taking or act, and if this Lease is not terminated by
or because of such damage, destruction or appropriation, Tenant, within sixty
(60) days after the occurrence of such damage, destruction or appropriation
shall commence to repair and restore the Building and the parking areas (or so
much as shall remain thereof in the case of any such appropriation). Tenant
shall diligently prosecute the work of repair and restoration, in a good and
workmanlike manner, using good materials to its completion.
Section 12.5. No Rent Abatement. If the Demised Premises are taken,
damaged or destroyed by a taking by eminent domain or by act of or pursuant to
public authority and if, as the result of such taking, damage, destruction, the
Demised Premises are rendered wholly or partly untenantable, then, in any such
case, the Minimum Rent and all items of Additional Rent payable by Tenant to
Landlord shall not xxxxx.
Section 12.6. Taking Damages. Landlord reserves, and Tenant hereby assigns
to Landlord, all rights to any award or compensation accruing on account of any
damage, destruction or other "adverse effect" (which latter term shall include
both the termination and the appropriation of intangible rights, such as
easements, as well as other forms of limitation adversely affecting the
interests of any party) suffered by the leasehold
15
hereby created, the Demised Premises, the Building or any improvement or
appurtenance in, on or to any of these as a result of any act of, or pursuant
to, public authority. Tenant shall execute and deliver to Landlord such
confirmatory instruments of this assignment as Landlord may from time to time
request.
Section 12.7. The foregoing reservation and assignment do not include any
award payable to Tenant for physical damage to or appropriation of Tenant's
tangible personal property or for moving expenses, on condition, however, that
such award shall be payable to Tenant by the taking authority and not by
Landlord, and on the further condition that no award to Tenant shall result in
any reduction in the amount recoverable from the taking authority by Landlord,
or by the holder of any mortgage.
Section 12.8. In the event of any termination of this Lease as the result
of the provisions of this Article XII, Tenant shall assign to Landlord the
proceeds of all insurance coverages maintained by Tenant therefor and shall,
within fifteen (15) days following Tenant's notification to Landlord of its
election to terminate the Lease, pay to Landlord the sum of all so-called
"deductibles" which are part of any such policy maintained by Tenant. In the
event of any termination of this Lease as the result of the provisions of this
Article XII, the parties, effective as of such termination, shall be released,
each to the other, from all liability and obligations thereafter arising under
this Lease.
ARTICLE XIII
Section 13.1. Each of the following contingencies shall be a Condition of
Default:
Section 13.1.1. Condition of Default. If (i) Tenant shall neglect or fail
to pay any rent or other charge due and payable by Tenant, and such neglect or
failure shall continue for a period of ten (10) days after receipt by Tenant of
written notice of such neglect or failure, subject to the provisions of Section
3.2.1; or (ii) Tenant shall neglect or fail to perform or observe any other
terms, provisions, conditions or covenants herein contained and on Tenant's part
to be performed or observed, and if (a) such neglect or failure shall continue
for a period of thirty (30) days after receipt by Tenant of written notice of
such neglect or failure; or if (b) more than thirty (30) days are required to
cure such default (because of the nature of the default and of the necessary
cure), and Tenant fails, or, having begun to cure such default within the
thirty (30) day period, Tenant thereafter does not diligently and continuously
proceed to cure the default to completion; or
Section 13.1.2. If the estate hereby created shall be taken on
execution or by other process of law; or
Section 13.1.3. If Tenant or any person or legal entity occupying the
Demised Premises through or under Tenant (save and except Tenant's subtenants or
concessionaires) shall commit an act of bankruptcy or be declared bankrupt or
insolvent according to law, or if any assignment shall be made of the property
of any of them, for the benefit of creditors, or if any proceedings, including
without limitation, proceedings for reorganization or for an arrangement with
creditors, shall be commenced under any bankruptcy or insolvency law by or
against Tenant or any person or legal entity occupying the Demised Premises
through or under Tenant, (save and except Tenant's subtenants and
concessionaires) and the same shall not be discharged within ninety (90) days of
its filing; or
Section 13.1.4. Except in the event that Tenant is operating a banking
facility in the Demised Premises and a regulatory order is issued by a
governmental authority having
16
jurisdiction therefor, if a receiver, guardian, conservator, trustee, assignee
or any other or similar officer or person shall be appointed to take charge of
all or substantially all of Tenant's property or the property of any person or
legal entity occupying the Demised Premises through or under Tenant (save and
except Tenant's subtenants or concessionaires); or
Section 13.1.5. If any court shall enter an order with respect to Tenant
or with respect to any person or legal entity occupying the Demised Premises
through or under Tenant (save and except Tenant's subtenants and
concessionaires) providing for the modification or alteration of the rights of
creditors.
Section 13.2. Landlord's Remedies. In the event any Condition of Default
shall occur (notwithstanding any waiver, license or indulgence granted by
Landlord with respect to the same or any other Condition of Default in any
former instance) Landlord, then or at any time thereafter, but prior to the
removal of such Condition of Default, if the Condition of Default is susceptible
of being cured, shall have the right at its sole election, either
Section 13.2.1. (Termination). to terminate this Lease by written notice
to Tenant, which shall take effect on the date of Tenant's receipt of said
notice or on any later date (on or prior to the expiration of the
then-current portion of the term) specified in Landlord's termination
notice; or
Section 13.2.2. (Possession). to enter upon and take possession of the
Demised Premises (or any part thereof in the name of the whole) without
demand or notice, and repossess the same as of the Landlord's former
estate, expelling Tenant and those claiming under Tenant (except to the
extent as Landlord may have otherwise agreed pursuant to the terms of
Section 11.11 above), without being deemed guilty of any manner of
trespass and without prejudice to any remedy for arrears of rent or
preceding breach of covenant.
Section 13.2.3. Landlord's repossession of the Demised Premises under
Section 13.2.2 shall not be construed to effect a termination of this
Lease, unless Landlord sends Tenant a written notice of termination under
Section 13.2.1.
Section 13.3. Reletting. Landlord shall make reasonable efforts (whether
or not this Lease shall be terminated pursuant to Section 13.2.2) to relet
the Demised Premises or any part thereof for such period or periods (which
may extend beyond the term of this Lease) and at such rent or rents and
upon such other terms and conditions as Landlord may deem advisable, and
in connection with any such reletting, Landlord may make or cause to be
made such additions, alterations and improvements to the Demised Premises
as Landlord shall deem advisable.
Section 13.4. Removal of Goods. If Landlord shall terminate this Lease or
take possession of the Demised Premises, Tenant, and those claiming under
Tenant, shall forthwith remove their goods and effects from the Demised
Premises. If Tenant or any other claimant shall fail to effect such removal
forthwith, Landlord may, without liability to Tenant or to those claiming under
Tenant, remove such goods and effects and may store the same for the account of
Tenant or of the owner thereof in any place selected by Landlord or, at
Landlord's election, Landlord may sell the same at public auction or private
sale on such terms and conditions as to price, payment and otherwise as
Landlord, in its sole judgment, may deem advisable. Tenant shall be responsible
for all costs of removal, storage and sale, and Landlord shall have the right to
reimburse itself from the proceeds of any such sale for all such costs paid or
incurred by
17
Landlord. If any surplus sale proceeds shall remain after such reimbursement
Landlord may deduct from such surplus any other sum due to Landlord hereunder
and shall pay over to Tenant the remaining balance of such surplus sale proceeds
if any.
Section 13.5. No termination or repossession provided above shall relieve
Tenant of its liabilities and obligations hereunder, all of which shall survive
such termination or repossession. In the event of any such termination or
repossession, Tenant shall pay Landlord, in advance, on the first day of each
month (and pro rata for the fraction of any month) for what would have been the
entire balance of the term of this Lease (or the current extension period)
one-twelfth (1/12th) of the annual rental for the Demised Premises, as defined
in Section 13.5.1, after applying the proceeds (if any) of the reletting of the
Demised Premises which remain after deducting Landlord's expenses in connection
with such reletting, termination or repossession. Such expenses shall include,
without limitation, removal, storage and attorneys' and brokers' fees.
Section 13.5.1. The annual rental for the Demised Premises shall be the
total of (i) the Minimum Rent, and all other charges payable by Tenant (whether
or not to Landlord) for the portion of the term immediately preceding such
termination or repossession; and (ii) the cost of heating the Demised Premises
to prevent the freezing of pipes, while the Demised Premises remain vacant,
(iii) any increase in the premiums payable by Landlord for any insurance
coverage maintained with respect to the Demised Premises, while the Demised
Premises remain vacant, if the increases are attributable to the vacancy of the
Demised Premises and which would have been required of Tenant under the Lease if
the Lease had not been terminated, and (iv) the cost of any repairs to the
Demised Premises, which, notwithstanding they become necessary because of the
acts of some other person(s) would not have become necessary if the Demised
Premises had not been vacant.
Section 13.6. At any time after any such termination or repossession,
whether or not Landlord has collected any current damages, Landlord shall be
entitled to recover from Tenant and Tenant shall pay to Landlord, on demand, as
liquidated final damages in lieu of all accrued, unpaid current damages and all
current damages accruing beyond the date of the demand (or, if earlier, the date
to which Tenant shall have paid current damages) a sum equal to the amount by
which the annual rent (as defined in Section 13.5.1) payable from the date of
such demand for what would have been the balance of the term shall exceed the
fair net rental value of the Demised Premises for the same period, determined as
of the beginning of that period.
Section 13.7. Not more than seven (7) days after receipt of Landlord's
xxxx therefor, Tenant shall pay Landlord all actual costs and expenses
(including, without limitation, reasonable amounts for attorneys' fees) incurred
by Landlord in enforcing Tenant's obligations or Landlord's rights under this
Lease.
ARTICLE XIV
Section 14.1. Miscellaneous - Landlord Self-Help. If Tenant shall default
in the performance of any obligation imposed on it by this Lease and shall not
cure such default within the applicable time period set forth in Section 13.1.1,
Landlord, without waiving or prejudicing any other right or remedy Landlord may
have, shall have the right at any time thereafter to cure such default for the
account of Tenant, and Tenant shall forthwith reimburse Landlord for any amount
paid and any expense or contractual liability so incurred. Tenant's failure to
reimburse Landlord shall be deemed a failure to pay the minimum rent.
18
Section 14.1.1. If it shall be necessary to do so to protect the real
estate or Landlord's interest therein, or to prevent injury to persons or damage
to property, Landlord may cure a default by Tenant, as provided in Section 14.1,
before the expiration of the waiting period but only after written notice to
Tenant. If Tenant's defaulted obligation under this Lease consists of a payment
of money to a person or legal entity other than Landlord (e.g., an insurance
premium), Landlord may cure the default under this Section 14.1.1.
Section 14.1.2. Tenant Self-Help. If Landlord shall neglect or fail to
perform or observe any of the terms, provisions, conditions or covenants herein
contained and on Landlord's part to be performed or observed, and if such
neglect or failure shall continue for a period of thirty (30) days after receipt
by Landlord of written notice of such neglect or failure, or if more than thirty
(30) days are required to cure such default (because of the nature of the
default and of the necessary cure), and Landlord fails, within such thirty (30)
day period to begin to cure the default or, having begun to cure such default
within the thirty (30) day period, Landlord thereafter is not diligently and
continuously proceeding to cure the default to completion, Tenant shall have the
right to exercise self-help in order to cure such default. Landlord shall
reimburse Tenant for the reasonable cost of such cure, within thirty (30) days
following Landlord's receipt of fully executed mechanics' lien waivers and bills
marked "paid". In the event that Landlord does not reimburse Tenant in
accordance with the terms and provisions of the preceding sentence, interest
shall accrue, from the date of Tenant's presentation to Landlord of such fully
executed mechanics' lien waivers and receipted bills, at the interest rate set
forth in Section 3.2.1 of this Lease. In the event that Landlord has not
reimbursed Tenant within sixty (60) days following Tenant's presentation to
Landlord of fully executed mechanics' lien waivers and receipted bills, Tenant
shall have the right to deduct such reasonable costs of cure from payment(s) of
Minimum Rent until such sum has been fully recouped.
Section 14.2. Mortgages, Overleases. This Lease shall be subordinate to
any future mortgage or other pledge of the Demised Premises to which Landlord's
interest in the Demised Premises is subordinated and to any xxxxxxxxx by or
under which Landlord holds its interest therein which is, as a matter of record,
superior to the lien of this Lease provided that, Landlord obtains for Tenant a
"mortgagee's nondisturbance agreement," so-called, to be executed by Tenant and
the holder of such mortgage. Such nondisturbance agreement shall be in a form as
Tenant shall approve, which approval shall not be unreasonably withheld or
delayed. Subsequent to Tenant and such holder executing such agreement, then, in
the event such mortgage shall be foreclosed, this Lease shall not terminate, but
shall continue in force in accordance with its terms and in accordance with the
terms of such non-disturbance agreement.
Section 14.2.1. The provisions of Section 14.2 shall be self-operative,
but Tenant hereby designates Landlord as Tenant's attorney-in-fact irrevocable
to execute and deliver such confirmatory instruments of subordination as any
mortgagee or overlessor of the Building require, as well as any instrument of
attornment providing for the continued efficacy of this Lease notwithstanding
the foreclosure of any such mortgage or the termination of any such xxxxxxxxx.
Section 14.2.2. Offset Statements. Within ten (10) days after receipt of
Landlord's written request therefor, Tenant shall execute and deliver to any
such mortgagee a statement acknowledging (if such be the case) that Landlord's
obligations hereunder have been fully performed to the date of such statement
(or, alternatively, specifying those matters as to which Tenant claims Landlord
is in default) and stating, also, the date or
19
dates to which (or the periods with respect to which) the payments required of
Tenant hereunder have been made.
Section 14.3. Waiver. Neither Landlord's nor Tenant's failure to complain
of any act or omission on the part of the other, or to complain of any
deficiency in any payment or performance (however long the same may continue)
nor the payment or acceptance of all or a part of the rent (nor the performance,
either complete or partial, or acceptance of performance, either complete or
partial of any other obligation), regardless of any accompanying statement,
assertion or qualification at the time the payment or performance is tendered,
shall never be deemed to waive or to preclude the exercise of any of its rights
hereunder. No waiver shall be effective except by written instrument describing
the waiver explicitly and signed by such party. No waiver of any breach of any
provision of this Lease shall be deemed a waiver of a breach of any other
provision of this Lease or a consent to any subsequent breach of the same or any
other provision. If any action shall require consent or approval, the grant of
such consent or approval on any one occasion shall not be deemed a consent to or
approval of any other action on the same occasion or the grant of such consent
or approval of the same or any other action on any subsequent occasion. Each
right and remedy under this Lease or by operation of law shall be distinct and
separate from every other right and remedy; all such rights and remedies shall
be cumulative, and none of them shall be deemed inconsistent with or exclusive
of any other, whether or not exercised; and any two or more or all such rights
and remedies may be exercised at the same time or successively.
Section 14.4(a). Notices. Any notice hereunder shall be in writing and may
be served in any lawful manner selected by the notifying party but it is agreed
that a written notice, mailed by registered or certified mail in accordance with
the requirements of the United States Postal Service and directed to the party
to be notified at the address most recently furnished by that party to the party
sending the notice ("an incontestable notice") shall be conclusively deemed to
have been served. An incontestable notice shall be deemed conclusively to have
been delivered on the Postal Service's delivery date, shown on the certified or
registered mail return receipt for such notice, except that if any such notice
is returned to the sender by the Postal Service for any reason, the
incontestable notice shall nevertheless be deemed conclusively to have been
delivered on the earliest date on which delivery by the Postal Service was
attempted, as indicated by the Postal Service endorsement on the cover of the
returned notice. Any incontestable notice sent by registered mail shall be
deemed conclusively to have been mailed on the mailing date endorsed on the
mailing receipt furnished to the notifying party by the Postal Service. During
the period of any postal strike or other interference with the mails, commercial
delivery such as Federal Express shall be substituted for registered or
certified mail. Except for a written notice specifically declared to take effect
on its dispatch by the lease provision requiring or permitting the notice, every
written notice hereunder shall take effect when delivered.
Tenant agrees to give any mortgagee of the Demised Premises a duplicate notice
of any letter to Landlord alleging a default by Landlord under this Lease and
Tenant agrees that such mortgagee shall thereafter have thirty (30) days to
correct or cure such default, as well as Landlord, either such performance to be
accepted by Tenant or in the event that such cure cannot be completed within
such thirty (30) day period, such reasonable period of time as is required to
diligently prosecute such cure to its completion.
Section 14.4(b). Addresses. Initially, notices for the parties shall be
directed to them at their respective addresses, stated at the beginning of this
Lease. Any change in the
20
address(es) to which notices for a party shall be sent shall be effected by
written notice from that party to the other. Written notice sent to Tenant at
the Demised Premises shall conclusively be deemed to have been sent to Tenant's
most current address for notices. Each party may, by written notice, require
that additional copies [but not more than two (2)] of each notice directed to it
be sent to the address(ees) at the address(es) designated in the requesting
party's notice.
Section 14.5. Quiet Enjoyment. If Tenant shall pay the Minimum Rent and
all Additional Rent and other charges reserved and imposed by the terms of this
Lease and shall fully and promptly discharge all of the other obligations
imposed on Tenant by the terms of this Lease (whether requiring Tenant to act or
to refrain from doing so), then Tenant shall peaceably and quietly have, hold,
occupy and enjoy the Demised Premises during the term without hindrance or
ejection by Landlord or by any person lawfully claiming under Landlord, subject
only to the provisions of applicable law and to the terms of this Lease.
Section 14.6. Delays. In any case where either party hereto is required to
do any act, the date (or the period) by (or in which) the act is to be performed
shall be postponed (or enlarged) by a period equal to any delay caused by or
resulting from Act of God; war, civil commotion; fire or other casualty;
weather, labor difficulties, shortages of labor, materials, fuel, electricity
(or other relevant form of energy) or equipment; or resulting from government
regulations or other causes (not including financial inability to perform)
beyond such party's reasonable control, whether such date (or time period) be
designated specifically (e.g. "July 4, 1986"; "within 120 days after such
filing") or described as (or with reference to) a "reasonable time."
Section 14.7(a). "Tenant" Defined, Successors. The term "Named Tenant" (as
well as the term "Tenant") and the pronouns referring thereto shall mean the
party (or parties) named originally in this Lease as such. When the context
permits or requires it, the term "Tenant" shall also mean any party or parties
succeeding by operation of law to the interest of the Named Tenant, any assignee
of Tenant, and any party or parties responsible for Tenant's obligations under
this Lease by operation of the provisions of Section 11.11 or otherwise. If
there is more than one party named (or responsible) as Tenant at any time, the
covenants of Tenant shall be the joint and several obligations of each of those
parties, and if Tenant is a partnership, the covenants of Tenant shall be the
joint and several obligations of each of the partners and the obligations of the
firm.
Section 14.7(b). If the Named Tenant or any of its successors is a group
or combination (such as, for example, a group of tenants in common), rather
than a single person or a single corporation, the covenants and liabilities of
Tenant may be enforced against the group or corporation, in a proceeding brought
against one or more of the members of the group or combination, with the same
effect as if each member had been made a party thereto and duly served with
process.
Section 14.7(c). Except as expressly otherwise provided by any provision
of this Lease, the terms and provisions of this Lease shall be binding upon and
inure to the benefit of the heirs, devisees, personal representatives,
successors and assigns, respectively, of the Landlord and Tenant.
Section 14.8. Limitation of Landlord's Liability. If at any time during
the term of this Lease, the Landlord's interest hereunder shall be held by
anyone acting in a fiduciary capacity, then notwithstanding any other provision
of this Lease, the Landlord's obligations hereunder shall not be binding upon
such
21
fiduciary individually or upon any beneficiary or shareholder for whom such
fiduciary acts, but only upon such fiduciary in that capacity and upon the trust
estate.
Section 14.8.1. The covenants of Landlord contained in this Lease shall be
binding upon each party holding the Landlord's interest herein only with respect
to breaches occurring during the time of that party's ownership of the
Landlord's interest hereunder. In addition, Tenant specifically agrees to look
solely to Landlord's interest in the Demised Premises for the satisfaction of
any claim or judgment against Landlord, it being specifically agreed that
neither the Landlord nor anyone claiming under the Landlord shall ever be
personally liable for any such judgment. The provisions contained in the
foregoing sentence are not intended to limit any right that the Tenant might
otherwise have to obtain injunctive relief against Landlord or Landlord's
successor in interest, or to prevent Tenant from taking or prosecuting any other
action which does not result in the personal liability of any person holding the
Landlord's interest in this Lease to respond in monetary damages in excess of
the value of that person's interest in the Demised Premises. It is further
understood and agreed that with respect to any services to be furnished by
Landlord to Tenant, Landlord shall in no event be liable for failure to furnish
the same when prevented from doing by strike or lockout, by equipment breakdown,
by accident, by order or regulation of or by any governmental authority, by
failure (for any cause) of supply, supplies, parts, or labor necessary to
furnish such services, by war or other public emergency, by any cause beyond the
Landlord's reasonable control, by any cause due to any act or neglect of the
Tenant or its servants, agents, employees, or licensees or due to any act or
neglect of any person claiming by, through or under the Tenant, or by the
termination for any reason of Landlord's occupancy of the premises from which
the services is being supplied by Landlord; and in no event shall the Landlord
ever be liable to Tenant for any indirect or consequential damages.
Section 14.9. Brokers. Tenant warrants and represents to Landlord, upon
which warranty and representation Landlord has relied in the execution of this
Lease, that Tenant has had no dealings of any kind with any broker in connection
with the Demised Premises, or in connection with the transaction represented by
this Lease. Tenant shall indemnify and save Landlord harmless from and against
any and all claims, loss, cost, damage and expense (including reasonable amounts
for attorneys' fees) arising out of or in connection with the claim of any
person or legal entity, for any fee, commission or payment on account of any
interest in the Demised Premises on account of this Lease or the transaction
represented hereby.
Section 14.10. Assignment by Landlord. If Landlord assigns Landlord's
interest in this Lease or the rents payable hereunder (conditionally or
otherwise) to the holder of a mortgage or deed of trust of the Demised Premises,
Tenant agrees that neither the assignment by Landlord nor the acceptance thereof
by such holder shall be deemed an assumption by such holder of any of the
obligations of Landlord hereunder, unless such holder shall (a) specifically
elect to do so by written notice sent to Tenant, or (b) take possession of the
Demised Premises, with or without the foreclosure of such holder's mortgage or
deed of trust.
Section 14.10.1. Tenant shall execute such instruments as may be required
to assure such holder that without the written consent of such holder (i) no
rent or other charge shall be prepaid hereunder other than in accordance with
the express provisions of this Lease, (ii) no modification shall be made in the
provisions of this Lease nor shall the term be extended or renewed, except as
provided herein, (iii) this Lease shall not be terminated except as provided
herein nor shall Tenant tender or effect a surrender of the Lease except
incident to a termination
22
provided for herein, and (iv) this Lease shall not be subordinated to any lien
subordinate to such first mortgage.
Section 14.11. Every provision of this Lease obligating Tenant shall be
construed to be both a covenant and a condition.
Section 14.12. The rights of the parties are governed by the terms of this
Lease which is to be interpreted in accordance with Federal law (where
applicable), and in accordance with the laws of the Commonwealth of
Massachusetts with respect to all other provisions.
Section 14.13. If Tenant continues in occupancy of the Demised Premises
after the end of the term, such occupancy shall be deemed a tenancy at
sufferance, terminable at Landlord's election without notice to Tenant or anyone
claiming under Tenant, whether or not Landlord receives any payments for use and
occupancy of the Demised Premises during such tenancy. Tenant's liability for
such use and occupancy after the term of this Lease ends shall be calculated:
(i) for the first sixty (60) days after the end of the lease term, at one
hundred twenty-five (125%) percent of the rate payable by Tenant hereunder
immediately prior to the end of the term; and (ii) after sixty (60) days
following the end of the lease term, at double the rate payable by Tenant
hereunder immediately prior to the end of the term. Tenant shall pay any amount
due under this Section within five (5) days after receipt of Landlord's xxxx
therefor.
Section 14.14. The term "person," except when qualified in some limiting
way (as in the phrase "natural person") shall mean and include not only all
natural persons but all other "legal entities," such as corporations and
partnerships, which are or may be recognized by law as acceptable organizational
forms for use in operating a business or conducting any other lawful activity,
whether private, governmental or mixed.
Section 14.15. The terms "business day" and "business days" shall not
include or refer to Saturday, Sunday or any "legal holiday," which latter term
shall mean and include those days for which employees who are paid on an hourly
basis are entitled to receive premium pay from their employers, by operation of
the laws of the United States or of the state in which the Demised Premises are
located.
Section 14.16. Any pronoun shall be read in the singular or plural number
and in such gender as the context may require.
Section 14.17. If any restrictive provision set forth (or incorporated by
adoption or reference) in this Lease shall be deemed, by a court of competent
jurisdiction, to be excessive in scope, duration or geographic extent, the
provision shall be effective to such extent, for such period of time and over
such geographic area as such court, after evidentiary hearing, shall deem is
reasonable. If any other provision of this Lease shall be determined to be void
or unenforceable by a court of competent jurisdiction, the remaining provisions
shall not thereby be affected.
Section 14.18. Any reference made in this Lease to an Article, Section,
subsection or other type of subdivision of this Lease shall be construed as a
reference to the entire Article (including all of its Sections, sections and
other subdivisions) to the entire Section (including all of its subsections and
other subdivisions) or to the entire subdivision (including all of its further
subdivisions), as the case may be, and shall be construed as a reference to any
appendix provision or Exhibit which complements, supplements or modifies the
provision referred to.
Section 14.19. The parties acknowledge that in the course of negotiating
this Lease their respective representatives have
23
gradually reached preliminary agreement on the several terms set forth in this
instrument. The parties acknowledge and agree that at all times they have
intended that none of such preliminary agreements (either singly or in
combination) shall be binding on either party, and that they shall be bound to
each other only by a single, formal, comprehensive document containing all of
the agreements of the parties, in final form, which has been executed by a duly
authorized officer of Landlord and by Tenant or a duly authorized representative
of Tenant. The parties acknowledge that none of the prior oral and written
agreements between them (and none of the representations on which either of them
has relied) relating to the subject matter of this Lease shall have any force or
effect whatever, except as and to the extent that such agreements and
representations have been incorporated in this Lease. The submission of this
instrument for examination does not constitute a reservation of or option for
the Demised Premises but shall become effective as a lease only upon said
execution and delivery by both Landlord and Tenant.
Section 14.20. Any schedule, exhibit, table of contents, index or appendix
attached to this Lease shall be deemed a part of the Lease.
Section 14.21. Right of First Refusal to Purchase. Should Landlord at any
time during the term of this Lease or any extension, receive an offer to
purchase the Demised Premises, the entire building or any part of the building
(collectively referred to as the Subject Property) and Landlord decides to
accept such offer, or should Landlord during any such time make an offer to sell
the Subject Property, Landlord shall give Tenant thirty (30) days notice in
writing of such offer. Tenant shall then have the first option to purchase the
Subject Property by giving written notice to Landlord of its intention to
purchase within such thirty (30) day period at the same price and on the same
terms as any such offer. In the event that Tenant does not elect to purchase the
Subject Property in accordance with such offer, Landlord shall have the right to
sell the Subject Property, in accordance with terms materially similar to such
offer, at any time within which six (6) months following the date of Landlord's
receipt of Tenant's rejection of such offer. In the event that Landlord shall
not consummate such sale in accordance with the provisions of the preceding
sentence, then the provisions of this Section 14.21 shall continue in force and
effect.
Section 14.22. Hazardous Substances. Tenant shall not cause or permit the
release of any hazardous substance/material or oil into the septic, sewage or
other waste disposal system serving the Demised Premises and/or the Building,
nor cause or permit the use, generation, release, disposal or storage of any
hazardous substance/material or oil (except only the use and storage of fuel oil
used for heating the Building, provided the same is used and stored in
compliance with any and all federal, state, and local laws, ordinances and
regulations governing the same) nor commit or suffer to be committed in or on
the Demised Premises any act which would require the filing of notice pursuant
to applicable law. In addition, Tenant shall not cause or permit the
transportation of any hazardous substance/material or oil to or from the Demised
Premises without the prior written consent of Landlord, and then only in
compliance with any and all federal, state and local laws, ordinances and
regulations governing such transportation. The phrase "hazardous
substance/material or oil" as used in this Section shall have the same meaning
as defined and used in 42 USC ss. 9601, et seq., as the same may be amended from
time to time, or as defined in any other federal, state or local laws,
ordinances and regulations applicable to the Demised Premises and/or the
Building. Tenant shall forthwith give Landlord notice of the accidental or other
introduction of any such hazardous substance/material or oil, or
24
the release or threat of release from the Demised Premises of any such hazardous
substance/material or oil.
Section 14.22.1. Tenant's Indemnity. Tenant shall indemnify, defend, and
hold Landlord, any parent, subsidiary and affiliate of Landlord, any overlessor,
and their respective officers, directors, beneficiaries, shareholders, partners,
agents, and employees harmless from all fines, suits, procedures, claims, and
actions of every kind, and all costs associated therewith (including attorneys'
and consultants' fees) arising out of or in any way connected with any deposit,
spill, discharge, or other release (or the threat of release) of any hazardous
substance/material or oil that occurs during the term of this Lease, or which
arises at any time from Tenant's use or occupancy of the Demised Premises, or
from Tenant's failure to provide all information, make all submissions, and take
all actions required by all governmental authorities under all applicable laws,
ordinances and regulations. In addition, in connection with Tenant's
indemnifications pursuant to this Section 14.22.1, Tenant shall be responsible
for the cost of any remediation required to be performed in, on or to the
Demised Premises and/or the Building as a result of any deposit, spill,
discharge, or other release (or the threat of release) of any hazardous
substance/material or oil that occurs during the term of this Lease.
Section 14.22.2. Tenant will not cause or permit any asbestos or asbestos
containing materials to be installed or otherwise introduced into the Demised
Premises or the Building. Tenant shall be solely responsible (at its sole cost
and expense) for any removal or remediation required in connection with any
existing asbestos or asbestos containing materials contained in the Building or
on the Demised Premises as of the date of this Lease if such removal or
remediation shall be required because of (i) any demolition, renovation,
alteration, refurbishing, refixturing or other work performed in or to the
Demised Premises by or on behalf of Tenant or anyone claiming under Tenant, or
(ii) any damage or deterioration of such existing asbestos or asbestos
containing materials arising out of or resulting from any act, omission or
negligence of Tenant or of Tenant's employees, agents, licensees, invitees or
contractors, or arising out of or resulting from any demolition, renovation,
alteration, refurbishing, refixturing or other work performed in or to the
Demised Premises by or on behalf of Tenant or anyone claiming under Tenant.
Section 14.22.3. Tenant's obligations and liabilities under Section 14.22,
Section 14.22.1 and Section 14.22.2 shall survive the expiration or earlier
termination of this Lease.
[HERE ENDS THIS PAGE]
25
IN WITNESS WHEREOF, the parties hereto have executed this Lease as a
sealed instrument on the date first specified above.
LANDLORD:
SUPERIOR REALTY CO., INC.
By: [Illegible]
-------------------------------
Its Treasurer hereunto
duly authorized
TENANT:
THE HIBERNIA SAVINGS BANK
By:________________________________
Its ________________ hereunto
duly authorized
26
IN WITNESS WHEREOF, the parties hereto have executed this Lease as a
sealed instrument on the date first specified above.
LANDLORD:
SUPERIOR REALTY CO., INC.
By:________________________________
Its Treasurer hereunto
duly authorized
TENANT:
THE HIBERNIA SAVINGS BANK
By: [Illegible]
-------------------------------
Its Chairman hereunto
duly authorized
26A
EXHIBIT A
Twelve (12) certain parcels of land, with the buildings thereon, situate
in that part of said Boston known as South Boston, and bounded and described as
follows:
PARCEL ONE - Registered Land
NORTHEASTERLY by West Third Street, fifty-four (54) feet;
SOUTHEASTERLY by land now or formerly of Xxxxxx XxXxx et al,
ninety-five (95) feet;
SOUTHWESTERLY by lands now or formerly of Xxxxxxx X. Xxxx, and of
Ignas Kibilda, fifty-four (54) feet; and
NORTHWESTERLY by lands now or formerly of Xxxxxxx X. Thoemmel, Jr.
and of Xxxxxx X. X'Xxxxxx et al, ninety-five (95) feet.
All of said boundaries are determined by the Land Court to be located as shown
on a plan drawn by X.X. Xxxx, Engineer & Surveyor, dated September 21, 1925, as
modified and approved by said Court, filed in the Land Registration Office as
plan No. 11061-A, a copy of a portion of which is filed with Certificate of
Title No. 19532 and said land is shown thereon as lots A and B.
Being the premises described in Certificate of Title No. 64672 Suffolk Deeds,
Registered Land Division.
PARCEL TWO
A certain parcel of land with the buildings thereon formerly numbered 000-000
XxxX Xxxxxxxx and 000-000 Xxxxxx Xxxxxx, xx that part of said Boston called
South Boston, bounded and described as follows:
SOUTHWESTERLY by West Broadway, seventy-five (75) feet;
NORTHWESTERLY by land of the Xxxxxxxx Church and Society,
one hundred forty-five and 5/10 (145.5) feet;
NORTHEASTERLY by Athens Street, seventy-five (75) feet; and
SOUTHEASTERLY by land now or formerly of Rifchin, one hundred
forty-five and 5/10 (145.5) feet.
PARCEL THREE
A parcel of land with the buildings thereon situated at numbers 388 and 388 on
Athens Street, in South Boston, Massachusetts, bounded and described as follows:
SOUTHWESTERLY by Athens Street, forty-five (45) feet;
NORTHWESTERLY by land of Xxxxxxx, now or formerly, sixty--six (66)
feet;
NORTHEASTERLY on land now or formerly of Bowdoin & Xxxxxxx,
forty-five (45) feet; and
SOUTHEASTERLY on land now or formerly of Xxxxx, sixty-six (66) feet.
Be said measurements more or less or however otherwise bounded and
described.
27
PARCEL FOUR
A certain parcel of land with the buildings thereon situated and numbered 345 on
Third Street in that part of said Boston called South Boston and bounded and
described as follows:
NORTHEASTERLY on Third Street, twenty-seven (27) feet;
SOUTHEASTERLY on land formerly of Xxxx Xxxxxxxxx, now or late of
Xxxxxx, eighty-five and 6/12 (85 6/12) feet;
SOUTHWESTERLY by land now or late of Grenwald, twenty-seven feet;
and
NORTHWESTERLY on land now or late of Xxxxx, eighty-five and 6/12
(85 6/12) feet.
Parcels Two and Three hereinabove described are conveyed herewith subject to,
and with the benefit of, a certain license agreement dated December 6, 1948,
between The South Boston Savings Bank and the Grantee herein, recorded with said
Deeds, Book 6867, Page 83.
PARCEL FIVE
About sixteen hundred twenty (1620) square feet of land on the northeasterly
side of Athens Street formerly numbered three hundred seventy-six (376) in the
numbering of said Athens Street, between an estate now or formerly of Xxxxxxxx
X. Xxxxxx (numbered 374) and an estate now or formerly of Xxxxxxxx X. Xxxxxx
(numbered 378).
Said land is situated in Block 112A, in the South Boston District shown on the
Boston Assessors' Plans of said City, filed in the office of the Board of
Assessors.
PARCEL SIX
A certain parcel of land with the buildings thereon being known and numbered as
000-000 Xxxx Xxxxx Xxxxxx, in the South Boston District of said Boston, and
bounded and described as follows:
NORTHEASTERLY by Third Street, twenty-six (26) feet, nine (9)
inches;
NORTHWESTERLY on land now or late of Xxxxxxxx, eighty (80) feet;
SOUTHWESTERLY on land now or late of E. Dana, twenty-six (26)
feet, nine (9) inches;
SOUTHEASTERLY on land now or late of Xxxxxxx X. Xxxx, eighty (80)
feet.
PARCEL SEVEN
A certain parcel of land with the building and improvements thereon situated at
000 Xxxx Xxxxx Xxxxxx, in the South Boston District of said Boston, and bounded
and described as follows:
NORTHEASTERLY by said West Third Street, twenty-seven feet;
NORTHWESTERLY by land now or late of Xxxx X. Xxxx, eighty-five (85)
feet, six (6) inches;
SOUTHWESTERLY by land now or late of Weston, twenty-seven (27)
feet; and
SOUTHEASTERLY by land now or late of Xxxxx X. Xxxxxxx, eighty-five
(85) feet, six (6) inches.
28
PARCEL EIGHT - Registered Land
The land with the buildings thereon in said South Boston District of Boston,
bounded and described as follows:
SOUTHWESTERLY by Athens Street, twenty-seven (27) feet;
SOUTHEASTERLY by land now or formerly of the Xxxxxx Association,
sixty (60) feet;
NORTHEASTERLY by land now or formerly of the heirs of X. Xxxxxxxx,
deceased, twenty-seven (27) feet;
NORTHWESTERLY by land conveyed by Xxxx X. Xxxx to Xxxxxxx X. Xxxxxx,
sixty (60) feet.
All of said boundaries are determined by the Land Court to be located as shown
on a plan drawn by Xxxxxxxxx Brothers, Civil Engineers, dated January 29, 1959,
as modified and approved by the Court, filed in the Land Registration Office, a
copy of a portion of which will be filed with the original certificate of title
issued on the decree. For title see Certificate of Title No. 65871.
PARCEL NINE
A certain parcel of land with the buildings thereon in that part Boston called
South Boston, bounded and described as follows:
NORTHEASTERLY on Third Street, twenty-seven (27) feet, three (3) inches;
SOUTHEASTERLY on land now or formerly of Blake, eighty (80) feet;
SOUTHWESTERLY in part by land now or formerly of Xxxxxxx, in part by a
passageway, and in part by land now or formerly of Xxxx,
measuring on this line in the whole twenty-seven (27) feet,
three (3) inches;
NORTHWESTERLY and by land now or formerly of Xxxxxxx X. Xxxxxx, eighty
(80) feet.
PARCEL TEN
The land in that part of said Boston called South Boston, with the buildings
thereon and bounded and described as follows:
Beginning on the northeasterly side of Athens Street at land now or
formerly of Xxxxxxxx and thence running northeasterly on said land of
Xxxxxxxx, sixty-six (66) feet; thence turning at a right angle and running
southeasterly on land formerly of the Xxxxxx Association, thirty-six and
one-half (36 1/2) feet; thence turning at a right angle and running
southwesterly on land now or late of Xxxxxxx Xxxx, sixty-six (66) feet to
said Athens Street; thence turning at a right angle and running
northwesterly on said Athens Street, thirty-six and one-half, (36 1/2)
feet to the point of beginning.
Said ten (10) parcels of land are the same parcels conveyed to Grantors by
deed of Grantee dated December 1, 1958 and duly recorded with Suffolk Deeds,
Book ____, Page ____
All of said parcels of land are conveyed herewith subject to and with the
benefit of all rights, easements, encumbrances, leases, and other matters of
record insofar as now in force and applicable.
29
PARCEL ELEVEN
Land, with the buildings thereon, if any, on the northwesterly side of
Dorchester Street numbered seventy-three (73) in the numbering of said
Dorchester Street, between an estate now or formerly of Xxxxxxxx Bognana and
another (numbered 75) and an estate now or formerly of Xxxxxx X. Xxxxxxxx and
another (number 71) and supposed to contain about fifteen hundred forty (1540)
square feet.
Said land is situated in Block 112 a, in the South Boston District shown
on the Boston Assessors' Plans of said City, filed in the office of the Board of
Assessors.
PARCEL TWELVE
A certain parcel of land with the buildings thereon now known as and
numbered 00 Xxxxxxxxxx Xxxxxx situated in that part of said Boston called South
Boston, being Lot 8 on a plan dated October 19, 1870, recorded with Suffolk
Deeds in Book 1021, Page 190 bounded and described as follows:
Beginning at the southerly corner of the granted premises at the corner of
Dorchester Street and Athens Street, thence running North-easterly on Dorchester
Street twenty-three feet, thence Northwesterly on said Lot 7 in a line parallel
with Athens Street, seventy-seven feet to a passageway four feet in width,
thence Southwesterly on said passageway in a line parallel to said Dorchester
Street twenty-three feet to Athens Street, thence Southeasterly on Athens Street
seventy-seven feet to Dorchester Street and the point of beginning, containing
1771 square feet of land; together with the right to use said passageway in
common with other lawfully entitled thereto.
Being the same premises conveyed by deed of Xxxxxxx and Xxxxxx Xxxxxxxx,
dated January 10, 1961.
30
