LEASE
THIS INDENTURE OF LEASE dated this 14th day of February, 1995 by
and between the Landlord and the Tenant named below.
WITNESSETH that Landlord, for and in consideration of the rents
herein reserved and the covenants and agreement herein contained and
expressed on the part of the Tenant to be kept, performed and fulfilled,
hereby demises and lets unto the Tenant, and the Tenant hereby leases from
the Landlord the Leased Premises described below.
Section 1 -- Definitions and Certain Basic Provisions.
1.1 Landlord: Duffy Wall Street L.L.C.
1.2 Landlord's Address: 411 Waverley Oaks Drive,
Waltham, Massachusetts 02154
1.3 Tenant: CFX Bank
1.4 Tenant's Address: P. O. Box 746, Keene New Hampshire
1.5 Leased Premises: The Leased Premises are (a) approxi-
mately 6,000 square feet located on the first floor at One Wall Street,
Manchester, New Hampshire, said premises being shown as outlined on the
plan attached hereto as Exhibit A (the "Interior Leased Premises") and (b)
approximately 8,750 square feet of land with four (4) drive-through
teller stations (the "Exterior Leased Premises") located on the westerly
side of the property on which the Leased Premises are located. The Leased
Premises are located on the property described in Exhibit B attached
hereto (the "Landlord's Premises"). Landlord shall also assign to Tenant
four (4) parking spaces for Tenant's exclusive use in the parking area
under the building during the term or any extended term of this Lease.
Landlord and Tenant acknowledge that the exact area of the Interior Leased
Premises will not be determined until the completion of the Fit-up work
provided for in Section 6 and agree to execute an Addendum in
substantially the form attached hereto upon completion of the Fit-up
work. The area of the Interior Leased Premises shall be measured from
interior surface of the exterior windows and the center line of interior
petitions.
1.6 Occupancy and Lease Term. Tenant may commence occupancy as of
the date that this Lease has been executed by both Landlord and Tenant
(the "Occupancy Date") for the purpose of refurbishing the Leased
Premises. Rental payments shall commence on the Rent Commencement Date,
which shall be (a) 90 days from the date that Landlord has completed the
interior renovations set forth on Exhibit C attached hereto and made a
part hereof, or (b) the date the Landlord has completed the interior
renovations set forth on Exhibit C--1, whichever date is last to occur,
or, if earlier, (c) the date upon which the Tenant has opened for business
to the public and the Landlord has completed the interior renovations set
forth on Exhibit C--1. The term of this Lease (the "Lease Term") shall
continue for 60 months from the Rent Commencement Date, unless the Rent
Commencement Date falls on a date other than the first of the month. In
such case, the Lease Term shall be extended by the number of days
remaining in the calendar month containing the Rent Commencement Date. In
addition, rent shall be prorated for that portion of the month in which
the Rent Commencement Date falls, if it does not fall on the first day of
a month.
1.7 Base Rent. The base rent shall be payable monthly in advance.
The parties acknowledge that the Base Rent is calculated at the following
rates: (a) $10.20 per square foot per year of Interior Leased Premises
and (b) $3.00 per square foot per year of Exterior Leased Premises and
agree that the exact amount of the base rent shall be determined upon
completion of the Fit-up work.
1.8 Initial Common Area Maintenance and Services Charge per month:
$1,500.00 per month, which the parties acknowledge is based upon $3.00
per square foot of Interior Leased Space per year, subject to adjustment
upon determination of the exact area of the Interior Leased Premises.
1.9 Initial Tax Payment per month: $900.00, which the parties
acknowledge is based upon $1.80 per square foot of Interior Leased Space
per year, subject to adjustment upon determination of the exact area of
the Interior Leased Premises.
1.10 Permitted Use: Financial institution including commercial and
retail banking operations.
Section 2 -- Rent and Additional Rent.
2.1 The Tenant shall pay to the Landlord in advance, on the first
day of each calendar month, the Base Rent set forth in Section 1.7. If
the first and/or last month is less than a full calendar month, the Base
Rent shall be pro-rated for such month(s).
2.2 If any Payment Obligation is not received within five (5)
business days of the due date the Tenant shall pay to the Landlord a "late
charge" equal to 5% of the past due Payment Obligation. As used in this
Lease, the term "Payment Obligation" means and includes any and all
financial liabilities of Tenant to Landlord whatsoever, including, without
limitation, Base Rent, tax, common area charges, and any amount paid by
Landlord on behalf of Tenant.
2.3 Unless and until otherwise directed in writing by the Landlord,
Tenant shall make all payments due hereunder to the Landlord at the
address stated in Section 1.2.
Section 2A -- Option to Renew.
Provided that no default be existing at the time of exercise,
Landlord grants Tenant two options to renew this Lease for additional
consecutive five year terms. The option for the first five year renewal
term must be exercised by Tenant giving Landlord written notice of
Tenant's election to do so at least 180 days prior to the expiration of
the Lease Term and, in the case of the second five year renewal option,
Tenant must give Landlord written notice at least 180 days prior to the
expiration of the first five year renewal term. All of the terms and
conditions set forth in this Lease shall remain in effect throughout the
extended term.
Section 2B -- Option for Additional Space.
Tenant shall have the right upon written notice, to lease the space
shown on Exhibit A as "Additional Space." Upon the exercise of such right
and the commencement of occupancy of the Additional Space, the Base Rent,
CAM Charges and Taxes shall be increased based upon the additional square
footage contained within the Additional Space and Landlord and Tenant
agree to execute an Addendum setting forth the revised rental charges and
square footage.
Section 3 -- Security Deposit.
Simultaneously with the execution of this Lease, the Tenant has
deposited the sum of $9,687.50(the "Deposit") with the Landlord as
security for the full and faithful performance by the Tenant of all of the
terms and conditions of this Lease required to be paid or performed by the
Tenant. The Landlord may apply any portion of the Deposit toward any
payment due hereunder for which the Tenant is in default and for any
damages to the Leased Premises (excluding reasonable wear and tear) caused
by any affirmative or negligent act by the Tenant, its employees, servants
or invitees. Upon the expiration of this Lease, Landlord shall return the
Deposit to the Tenant less any amounts applied by Landlord to said
payments or damages.
Section 4 -- Quiet Enjoyment and Acceptance.
The Landlord shall put the Tenant in possession of the Leased
Premises at the beginning of the term hereof, and the Tenant, upon paying
the rent and observing the other covenants and conditions herein upon its
part to be observed, shall peaceably and quietly hold and enjoy the Leased
Premises. The Landlord warrants to the Tenant that the Landlord's title
to the Leased Premises is free and clear of all encumbrances except for
mortgages of record and easements and restrictions of record which will
not unreasonably interfere with Tenant's intended use of the Leased
Premises. In the event that the Leased Premises are subject to any
mortgages of record, Landlord shall provide Tenant with Subordination and
Attornment Agreements, pursuant to Section 20 below, on or before the Rent
Commencement Date.
Section 5 -- Common Area and Common Area Maintenance Changes.
5.1 The term "Common Area" means that part of the Landlord's
Premises intended for the common use of all tenants, including among other
facilities, lobbies, rest rooms, parking areas, private streets and
allies, landscaping, loading area, sidewalks, walkways, elevators,
lighting facilities, drinking fountains, plumbing, public toilets and the
like, but excluding leasable commercial space and the structural
components of the Landlord's Premises. Landlord reserves the right to
change from time to time the dimensions and location of the Common Area,
excluding, however, the first floor lobby area shown on Exhibit A and the
hallways providing access to the Interior Leased Premises. The Tenant and
its employees and customers shall have the non-exclusive right to use the
Common Area subject to such reasonable rules and regulations governing use
as the Landlord may from time to time prescribe.
5.2 The Landlord shall be responsible for the operation, management,
maintenance and repair of the Common Area, including but not limited to
cleaning of all Common Areas, landscaping of the exterior of the building
located on Landlord's Premises, snow removal from all sidewalks, walkways,
driveways, parking areas and the Exterior Leased Premises and the washing
of all exterior windows no less often than two (2) times per year.
5.3 The Tenant shall pay to Landlord on the first day of every month
the Initial Common Area and Services Maintenance charge set forth in
Section 1.8 as Tenant's share of Common Area Maintenance and Services (the
"CAM Charge"). The CAM Charge shall be deemed to include Tenant's share
of the cost of the Common Area Maintenance set forth in Section 5.2
hereof, the cost of utilities set forth in Section 11 hereof and the cost
of insurance set forth in Section 17.2 and 18.1 hereof. During any year
after calendar year 1995 during which the total CAM Charges divided by the
total number of square feet of interior floor area of the building of
which the Interior Leased Premises are a part, is less than or greater
than Three Dollars ($3.00) then, if the actual CAM Charges exceeds Three
Dollars ($3.00) Tenant shall pay to Landlord the difference between the
actual CAM Charges and the CAM Charge payments made by Tenant within
fifteen (15) days of the receipt of the itemization of CAM Charges by
Tenant. In the event that Tenant's estimated CAM Charge payments exceed
the actual CAM Charges, Landlord shall credit Tenant with the difference
on Tenant's next estimated CAM Charge payment. The amount of the CAM
Charge payment to be made by Tenant on a monthly basis during the ensuring
year shall be adjusted annually to reflect the actual CAM Charge expenses
incurred during the preceding year. At Tenant's request, Landlord will
furnish to Tenant evidence (such as bills or invoices) of the actual costs
and expenses which comprise the CAM Charges.
Section 6 -- Fit-up, Repairs and Cleaning by Landlord.
6.1 The Landlord shall perform in a good and workmenlike manner, the
fit-up work set forth on Schedules C and C--1
attached hereto and made a part hereof. All such work shall be performed
by Landlord at Landlord's expense with the exception that the Tenant shall
reimburse Landlord for the cost of constructing the interior vertical
demising walls. All such work shall be done with first class materials in
a good and workmenlike manner, in accordance with all applicable
governmental laws, rules and regulations and to a standard appropriate for
first class professional offices and banking facilities. The work set
forth in Schedule C shall be completed no later than six (6) weeks from
the date of execution of this Lease and the work set forth in Schedule C--
1 shall be completed no later than three (3) months from the date of
execution of this Lease, subject to any reasonable delays caused for force
majeure, such as strikes, casualty or inability to obtain materials.
6.2 The Landlord shall, at its own expense, make any and all repairs
to the Leased Premises and the remainder of Landlord's Premises including
but not limited to any and all roof and other structural repairs, repairs
to the heating, ventilation and air conditioning systems and replacement
of broken glass, except to the extent that such repairs are necessitated
by any affirmative or negligent act by the Tenant, its employees, servants
or invitees and except to the extent such repairs are made Tenant's
responsibility in Section 7. With respect to any repairs that the
Landlord is required to make the Landlord shall use best efforts to
accomplish such repairs as promptly as possible, with no disruption to
Tenant's business operations unless reasonably necessary
Section 7 -- Repairs by Tenant.
The Tenant shall, at its own expense (i) maintain in good repair
all doors, hardware, locks, and lighting, servicing the Leased Premises
(ii) be responsible for repairs to the Leased Premises to the extent such
repairs are necessitated by any affirmative or negligent act by the
Tenant, its employees, servants or invitees, and (iii) be responsible for
any interior painting and carpeting desired by the Tenant. The Tenant
shall also promptly make any repairs or alterations lawfully required by
any public authority as a result of changes in statutes or regulations
which become effective subsequent to the beginning of the term of this
Lease and which repairs are required because of the nature of the
occupancy of the Leased Premises by the Tenant or the manner in which it
conducts its business therein. At the expiration of this Lease or earlier
termination hereof for any cause herein provided for, the Tenant shall deliver
up the Leased Premises to the Landlord in the same condition and state of
repairs as at the beginning of the term hereof, reasonable wear and tear,
taking by eminent domain and damage due to fire or other casualty insured
against and Landlord's obligations excepted.
Section 8 -- Alterations, Conduits, Signs.
8.1 Tenant shall not make any alterations, additions or improvements
to the Leased Premises with a cost in excess of $10,000 in the aggregate
without the prior written consent of Landlord, except for the installation
of unattached, movable trade fixtures which may be installed without
drilling, cutting or otherwise defacing the premises, and except for the
initial Tenant fit-up work being performed prior to the Rent Commencment
Date as shown/described n Exhibit D.
8.2 All construction work done by Tenant or by Landlord shall be
performed in a good and workmanlike manner, and in compliance with all
governmental requirements.
8.3 In the event of the filing of any notice of a builder's,
supplier's or mechanic's lien on the Leased Premises
arising out of any work performed by or on behalf of the Tenant (other
than work performed by the Landlord hereunder) the Tenant shall cause
without delay proper proceedings to be instituted to test the validity of
the lien claims, and to discharge immediately the same by the posting of
bond or otherwise; and the Tenant shall completely indemnify the Landlord
against any such claim or lien and all costs of such proceedings wherein
the validity of such lien is contested by the Tenant.
8.4 The Tenant shall pay the increased premiums, if any, for the
regular insurance coverage of the Leased Premises resulting from any
additional risk during the course of construction or installation of any
such alteration, addition or improvement and or the increased cost of fire
and extended coverage insurance resulting from the increased value of the
building of which the Leased Premises are a part. This Section shall not
apply to any increased premiums resulting from work being performed by
Landlord at the Leased Premises prior to the Rent Commencement Date.
8.5 Tenant shall have the right to install, maintain, repair and
replace wires, lines, cables, conduits and pneumatic tubing necessary for
the connection of the ATM location as shown on Exhibit A and the drive-up
teller facilities as shown on Exhibit A--1 to the Interior Leased
Premises. In connection therewith, Tenant shall have the right to remove
such flooring, ceiling panels and such other nonstructural components of
the building within which the Leased Premises are located and to excavate
and trench between the exterior of said building and the drive-up teller
facilities in order to install, maintain and repair the necessary wires,
lines, cables, conduits and pneumatic tubing; provided, however, that in
all such cases the Tenant shall restore Landlord's Premises as nearly as
is practical to its condition immediately prior to the commencement of any
such work.
8.6 Tenant is hereby given the sole and exclusive right to place,
keep and maintain such signs as Tenant may from time to time desire on
both sides of the upper most twelve (12) feet of the exterior standalone
sign located on the easterly side of the Landlord's Premises; provided,
however, that all such signage shall be in conformance with the City of
Manchester Zoning Ordinance. Tenant shall have the further right to
install such signage in the lobby area of the building and within the
Exterior Leased Premises as may be reasonably necessary to indicate to the
general public the location of the Tenant's business premises and drive-
up teller locations. All such signage shall be submitted to Landlord for
Landlord's approval prior to its placement, which approval shall not be
unreasonably withheld.
Section 9 -- Redelivery at End of Lease Term; Holding Over.
9.1 At the expiration of this Lease or upon the earlier termination
of this Lease for any cause herein provided for, the Tenant shall
peaceably and quietly quit the Leased Premises and deliver possession of
the same to the Landlord.
9.2 In the event Tenant remains in possession of the Leased Premises
after the expiration or earlier termination of this Lease and without the
execution of a new Lease, Tenant shall be deemed to be a Tenant at will.
Section 10 -- Trade Fixtures, Landlord's Lien.
The Landlord agrees that all furniture, furnishings and trade
fixtures installed in the Leased Premises shall be deemed to remain
personal property and that all such furniture, furnishings and trade
fixtures of the Tenant or of any employee, agent or subcontractor or
sub-tenant of the Tenant may be removed prior to the expiration of this Lease
or earlier termination for any cause herein provided for; but the Tenant
shall repair any damage occasioned by such removal and shall restore the
Leased Premises to their condition as at the beginning of the term hereof,
reasonable wear and tear, taking by eminent domain, and damage due to fire or
other casualty insured against and Landlord' obligations excepted. Any such
property which may be removed pursuant to the preceding sentence and which is
not so removed prior to the expiration or earlier termination of this Lease
may be removed from the Leased Premises by the Landlord and stored for the
account of the Tenant; and if the Tenant shall fail to reclaim such
property within ninety (90) days following such expiration or earlier
termination of this Lease, such property shall be deemed to have been
abandoned by the Tenant, and may be appropriated, sold, destroyed or
otherwise disposed of by the Landlord without notice to the Tenant and
without obligation to account therefor.
Section 11 -- Utilities.
The Tenant shall pay for all electricity and telephone service
supplied to it at the Leased Premises. Landlord shall provide at its
cost, separate electric meters for the Leased Premises. Landlord shall
provide and be responsible for payment of all other utilities to the
Leased Premises and the Common Area, including but not limited to water,
sewer, heating, ventilating and air conditioning. During the heating
season, the heat provided by landlord shall be such as to maintain the
temperature within the Interior Leased Premises at no less than 68 and
during the air conditioning season, air conditioning shall be provided so
as to maintain the temperature within the Interior leased Premises at no
greater than 75 . Heat and air conditioning shall be provided at the
foregoing minimum and maximum temperatures during normal business hours
which shall be 7:00 a.m. to 6:00 p.m. on weekdays and 7:00 a.m. to 12:00
noon on Saturdays. Landlord shall not be liable for any interruption
whatsoever in utility services, unless such interruption is the result of
an affirmative or negligent act by the Landlord, its employees, servants
or invitees.
Section 12 -- Use of Premises.
12.1 The Tenant covenants and agrees to use and occupy the demised
premises only for the use set forth in Section 1.13.
12.2 The Tenant shall procure any licenses or permits required by
any use of the Leased Premises by the Tenant.
12.3 The Tenant shall not permit any employee or visitor of the
Tenant to violate the covenants or obligations of the Tenant hereunder.
Section 13 -- Subleasing -- Assignment.
The Tenant shall not, without the prior written consent of the
Landlord, assign this Lease in whole or in part, or sublet the Leased
Premises or any portion thereof; provided, however, that this Lease may
be assigned without such consent in the event of a merger by Tenant or
acquisition of Tenant to the Tenant's successor upon merger or the
Tenant's purchaser and Tenant shall have the right to assign this Lease or
sublet all or a portion of the Premises to any parent, subsidiary or
affiliated corporation without the prior written consent of the Landlord.
In the event of such assignment or sublease the Tenant shall remain
liable to the Landlord for all the Payment Obligations under the terms of
this Lease and for the performance of all covenants herein to be performed
by the Tenant.
Section 14 -- Taxes and Assessments.
As set forth in Section 1.9, Tenant shall pay Landlord a tax payment
each month of $900.00, based upon $1.80 per square foot of Interior
Leased Premises per year (the "Tax Base"). In the event, during any tax
year, commencing with the tax year effective on April 1, 1996, the total
tax bill for the Landlord's Premises, divided by the total number of
square feet located in the building located on Landlord's Premises, if
greater than or less than $1.80 per square foot, then, if such amount is
greater than $1.80 per square foot the Tenant shall pay to the Landlord as
additional rent, the amount by which the per square foot tax computation
for such year exceeds $1.80, multiplied by the number of square feet
within the Interior Leased Premises. Such payment shall be made by the
Tenant to the Landlord within fifteen (15) days of receipt of the invoice
for such payment. In the event that such calculation results in a number
less than $1.80 per square foot, then the Landlord shall credit such
amount multiplied by the number of square feet within the Interior Leased
Premises to the next ensuing monthly tax payment or payments due from
Tenant.
Section 15 -- Eminent Domain.
In the event that the Leased Premises shall be lawfully condemned or
taken by any public authority either in their entirety or in such
proportion that they are no longer suitable for the intended use by the
Tenant, this Lease shall automatically terminate without further act of
either party on the date when possession of the Leased Premises is
surrendered and shall be relieved of any further obligation to the other,
except that the Tenant shall be liable for and shall promptly pay to the
Landlord any rent then in arrears, or the Landlord shall promptly rebate
to the Tenant a pro rata portion of any rent paid in advance. In the
event the proportion of the Leased Premises so condemned or taken is such
that they are still suitable for use by the Tenant (it being agreed that
any taking which eliminates or significantly reduces the Exterior Leased
Premises may, at Tenant's option, be deemed to render the entire Leased
Premises unsuitable for Tenant's purposes), this Lease shall continue in
effect in accordance with its terms and a portion of the rent shall abate
equal to the proportion of the rental value of the Leased Premises so
condemned or taken. In either of the above events, the award for the
property so condemned or taken shall be payable solely to the Landlord,
excluding, however, any payments for business relocation, business
interruption, or other awards relating directly to Tenant's business
operations.
Section 16 -- Liability.
Except for injury or damage caused by the willful or grossly
negligent act or failure to act of the Landlord, its servants or agents,
the Landlord shall not be liable for any injury or damage to any person
happening on or about the Leased Premises or for any injury or damage to
the Leased Premises or to any property of the Tenant or to any property of
any third person, firm, association or corporation on or about the Leased
Premises. The Tenant shall, except for injury or damage caused as
aforesaid, indemnify and save the Landlord harmless from and against any
and all liability and damages, costs and expenses, including reasonable
counsel fees, and from and against any and all suits, claims and demands
of any kind or nature, by and on behalf of any person, firm association or
corporation, arising out of or based upon any incident, occurrence, injury
or damage which shall or may happen on or about the Leased Premises and
from and against any matter or thing growing out of the condition,
maintenance, repair, alteration, use, occupation or operation of the
Leased Premises or the Common Area or the installation of any property
therein or the removal of any property therefrom.
Section 17 -- Liability Insurance.
17.1 The Tenant shall, throughout the term hereof, procure and
carry, at its expense, comprehensive liability insurance on the Leased
Premises with a responsible insurance company authorized to do business in
New Hampshire. Such insurance shall be carried in the name of and for the
benefit of the Tenant and the Landlord; shall be written on an
"occurrence" basis; and shall provide coverage of at least One Million
Dollars ($1,000,000.00) in case of death of or injury to one person; at
least Two Million Dollars ($2,000,000.00) in case of death of or injury to
more than one person in the same occurrence, and at least Five Hundred
Thousand Dollars ($500,000.00) in case of loss, destruction or damage to
property. A single limit policy or policies in the total amount of Two
Million Dollars ($2,000,000.00) shall be deemed compliance with the
preceding sentence. The Tenant shall furnish to the Landlord a
certificate of such insurance which shall provide that the insurance
indicated therein shall not be cancelled without at least ten (10) days'
written notice to the Landlord.
17.2 The Landlord shall maintain general public liability insurance
coverage on the Common Area.
Section 18 -- Fire and Extended Coverage Insurance.
18.1 The Landlord shall procure and continue in force during the
term hereof fire and extended coverage insurance on the Leased Premises.
18.2 Without prejudice to any rights of the Landlord under the
applicable insurance policies, the Tenant shall be held free and harmless
from liability for loss or damage to the Leased Premises by fire, the
extended coverage perils, sprinkler leakage, vandalism and malicious
mischief if and to the extent actually insured against, whether or not
such loss or damage be the result of the negligence of the Tenant, its
employees or agents. This subsection does not impose any added obligation
or expense upon the Landlord and is to be construed only as a limitation
upon the rights of the insurance carriers to subrogation.
18.3 Without prejudice to any rights of the Tenant under the
applicable insurance policies, the Landlord shall be held free and
harmless from liability for loss or damage to personal property of the
Tenant in the Leased Premises by fire, the extended coverage perils,
sprinkler leakage, vandalism and malicious mischief if and to the extent
actually insured against, whether or not such loss or damage be the result
of the negligence of the Landlord, its employees or agents. This
subsection does not impose any added obligation or expense upon the Tenant
and is to be construed only as a limitation upon the rights of the
insurance carriers to subrogation.
Section 19 -- Destruction or Damage.
In the event the Leased Premises shall be totally destroyed by fire
or other casualty insured against, or shall be so damaged that repairs and
restoration cannot be accomplished within a period of one hundred twenty
(120) days from the date of such destruction or damage, this Lease shall
automatically terminate without further act of either party, and each
party shall be relieved of any further obligation to the other, except
that the Tenant shall be liable for and shall promptly pay the Landlord
any rent then in arrears or the Landlord shall promptly rebate to the
Tenant a pro rata portion of any rent paid in advance. In the event the
Leased Premises shall be so damaged that repairs and restoration can be
accomplished within a period of one hundred twenty (120) days from the
date of such destruction or damage, this Lease shall continue in effect in
accordance with its terms; such repairs and restoration shall, unless otherwise
agreed by the Landlord and the Tenant, be performed promptly by the
Landlord as closely as practicable to the original specifications
(utilizing therefor the proceeds of the insurance applicable thereto
without any apportionment thereof for damages to the leasehold interest
created by this Lease), and until such repairs and restoration have been
accomplished, a portion of the rent shall abate equal to the proportion of
the Leased Premises rendered unusable by the damage. The Tenant agrees to
execute and deliver to the Landlord all instruments and documents
necessary to evidence the fact that the right to such insurance proceeds
is vested in the Landlord.
Section 20 -- Mortgage Lien.
The Tenant agrees to execute subordination agreements providing that
this Lease shall be subject and subordinate to the lien of (1) any
mortgage or deed of trust constituting a first lien of the Leased
Premises, or any part thereof, at the date hereof, (2) the lien of any
mortgage or deed of trust hereafter executed to a bank, trust company or
other recognized lending institution to provide permanent financing or
refinancing of the Landlord's Premises or any part thereof, and (3) any
renewal, modification, consolidation or extension of any mortgage or deed
of trust referred to in clause (1) and (2) provided that it will be a
condition of any such subordination agreement that this Lease and Tenant's
rights hereunder shall survive any foreclosure sale so long as Tenant is
not in default hereunder.
Section 21 -- Landlord's Right to Cure.
In the event Tenant fails to make timely payment of any insurance
premium, tax or other amount which Tenant is obligated to pay hereunder,
Landlord may, at Landlord's sole discretion, pay such amount on behalf of
Tenant, and any amount paid by Landlord hereunder shall become an
immediately due obligation of Tenant to Landlord without notice or demand.
Section 22 -- Default.
In the event (i) any Payment Obligation hereunder shall not be
paid within fifteen (15) days after notice of failure to make payment; or
(ii) the Tenant defaults in the performance or observance of any other
covenant or condition in this Lease and such default remains unremedied
for thirty (30) days after written notice thereof has been given to the
Tenant by the Landlord; provided, however, that said period shall be
extended during such time as the Tenant is making bona fide diligent and
reasonably continuous efforts to cure such default; or (iii) the Tenant
makes an assignment for the benefit of creditors, files a voluntary
petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions or
applies to any tribunal for any receiver or any trustee of or for the
Tenant of any substantial part of its property, commences any proceeding
relating to the Tenant or any substantial part of its property under any
reorganization, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, whether now or hereafter
in effect, or there is commenced against the Tenant any such proceeding
which remains undismissed for a period of sixty (60) days, or any order
approving the petition in any such proceeding is entered, or the Tenant by
any act indicates its consent to, or acquiescence in, any such proceeding
or the appointment of any receiver of or trustee for the Tenant of any
substantial part of its property, or suffers any such receivership or
trusteeship to continue undischarged for a period of sixty (60) days, then
in any of such events, the Landlord may, immediately
or at any time thereafter and at Landlord's option, pursue any of the
following remedies:
A. Without notice or demand, Landlord may take any action
permissible at law to ensure performance by Tenant of Tenant's covenants
and obligations under this Lease. If Tenant vacates the Leased Premises,
Landlord may enter upon and take possession of the Leased Premises in
order to protect them from deterioration.
B. The Landlord may terminate this Lease and obtain possession of
the Leased Premises by any summary or other procedure available to a
landlord at law or in equity.
C. Landlord may terminate this Lease by written notice to Tenant
stating that the Lease has been terminated as a result of a breach of
condition of this Lease, in which event Tenant shall immediately surrender
the Leased Premises to the Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy Landlord may have for
possession or arrearages in rent, enter upon the Leased Premises or any
part thereof in the name of the whole and repossess the same as of the
Landlord's former estate and expel the Tenant and those claiming through
or under the Tenant and remove their effects forcibly, if necessary,
without being deemed guilty of any manner of trespass and without
prejudice to any remedies which might otherwise be used for arrears of
rent or preceding breach of covenant.
22.2 The Tenant covenants that, in case of termination either under
the provisions of statute or after written notice by reason of the default
of the Tenant, the Tenant shall remain and continue liable to the Landlord
in an amount equal to the total Payment Obligations reserved for the
balance of the term hereof less the net amounts (after deducting the
expenses of repair, renovation, demolition or broker's fees) which the
Landlord realizes, or with due diligence should have realized, from the
reletting of the Leased Premises. Tenant further agrees to pay all
reasonable attorney's fees and costs of collection incurred by Landlord as
a result of any default hereunder. The Landlord shall have the right from
time to time to relet the Leased Premises upon such terms as it may deem
fit, and if a sufficient sum shall not be thus realized to yield the net
rent required under this Lease, the Tenant agrees to satisfy and pay all
deficiencies as they may become due during each month of the remaining
term of this Lease. Nothing herein contained shall be deemed to require
the Landlord to await the date whereon this Lease, or the term hereof,
would have expired had there been no default by the Tenant. The Tenant
expressly waives service of any notice of intention to reenter and waives
any and all right to recover or regain possession of the Leased Premises,
or to reinstate or redeem this Lease as may be permitted or provided for
by or under any statute or law now or hereafter in force and effect. The
rights and remedies given to the Landlord in this Lease are distinct,
separate and cumulative remedies, and no one of them, whether or not
exercised by the Landlord, shall be deemed to be in exclusion of any of
the others herein or by law or equity provided. Nothing contained in this
Section shall limit or prejudice the right of the Landlord to prove and
obtain, in proceedings involving the bankruptcy or insolvency of, or a
composition with creditors by, the Tenant the maximum allowed by any
statute or rule of law at the time in effect.
Section 23 -- Access to Premises.
The Landlord or its representatives shall have free access to the
Leased Premises at reasonable intervals upon reasonable notice during
normal business hours for the purpose of inspection, or for the purpose of
showing the premises to prospective purchasers, or for the purpose of making
repairs which the Landlord is obligated to make hereunder.
Section 24 -- Notices.
Any written notice, request or demand required or permitted by this
Lease shall, until either party shall notify the other in writing of a
different address, be properly given if sent by certified or registered
first class mail, postage prepaid, and if to Landlord, addressed as set
forth in Section 1.2, and if to Tenant, addressed either as set forth in
Section 1.4 or to the Leased Premises.
Section 25 -- Short Form Recording.
The parties covenant and agree that, at the request of either party,
there shall be recorded in the Registry of Deeds for the county in which
the Leased Premises are situated only a Notice of this Lease and that they
will execute and deliver a Notice of Lease in the statutory form for such
purpose. The parties further covenant and agree that, in the event of
termination, cancellation or assignment of this Lease prior to the
expiration of the term hereof, they will execute and deliver, in
recordable form, an instrument setting forth such termination,
cancellation or assignment.
Section 26 -- Succession.
This Lease shall be binding upon and inure to the benefit of the
heirs, executors, administrators, successors and assigns of the parties
hereto.
Section 27 -- Waiver.
Any consent, express or implied, by the Landlord to any breach by
the Tenant of any covenant or condition of this Lease shall not constitute
a waiver by the Landlord of any prior or succeeding breach by the Tenant
of the same or any other covenant or condition of this Lease. Acceptance
by the Landlord of rent or other payment with knowledge of a breach of or
default under any term hereof by the Tenant shall not constitute a waiver
by the Landlord of such breach or default.
Section 28 -- Governing Law.
This Lease shall be construed and interpreted in accordance with the
laws of the State of New Hampshire.
Section 29 -- Counterparts.
This Lease may be executed in two (2) or more counterparts, each of
which shall be deemed an original and all collectively but one and the
same instrument.
Section 30 -- Entire Agreement.
This Lease contains the entire agreement between the parties and
supersedes and terminates all prior or contemporaneous arrangements,
undertakings, understanding and agreements, whether oral or written.
Section 31 -- Early Termination.
Landlord and Tenant acknowledge that the Tenant must first obtain
approval from the Comptroller of the Currency in order to operate a branch
bank at the Leased Premises. Tenant covenants and agrees to immediately
upon the execution hereof make application for such approval. In the
event that the Tenant fails to receive such approval from the Comptroller
of the Currency, then the Tenant may, within ten (10) business
days from the receipt of such notice, terminate the Lease by giving
written notice thereof to the Landlord, together with a copy of the
Comptroller's disapproval, and thereupon this Lease shall terminate and
neither party shall have any further obligations to the other hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed and delivered as of the day and year first above written.
Witness: LANDLORD:
DUFFY WALL STREET L.L.C.
By: /s/ ROBERT L. DUFFY, JR.
Robert L. Duffy, Jr.
Managing Member
TENANT:
CFX BANK
By: /s/ PAUL D. SPEISS
Paul D.Speiss
Vice President
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
Appeared on this 14th day of February, l995,
Robert L. Duffy, Jr., duly authorized manager of Duffy Wall Street
L.L.C., and acknowledged this instrument for the purposes therein
contained. Before me,
/s/ DONALD J. CASEY, JR.
Notary Public
My Commission Expires 4/27/01
STATE OF NEW HAMPSHIRE
COUNTY OF HILLSBOROUGH
Appeared on this 15th day of February, l995,
Paul D. Speiss, duly authorized Vice President
of CFX Bank, a New Hampshire Bank and acknowledged this instrument for
the purposes therein contained, on behalf of the Bank. Before me,
/s/ WILLIAM TUCKER
Justice of the Peace
EXHIBIT A
PLAN OF INTERIOR PREMISES
EXHIBIT A--1
PLAN SHOWING EXTERIOR LEASED PREMISES
EXHIBIT B
LEGAL DESCRIPTION OF LANDLORD'S PREMISES
EXHIBIT C
INITIAL WORK TO BE PERFORMED
BY LANDLORD
EXHIBIT C--1
WORK TO BE COMPLETED BY LANDLORD PRIOR
TO RENT COMMENCEMENT DATE
EXHIBIT D
TENANT'S FIT-UP WORK
ADDENDUM
THIS ADDENDUM to that certain Indenture of Lease dated as of this
day of , 1995 by and between Duffy Wall Street L.L.C. and
CFX Bank, is made pursuant to the provisions set forth in Section 1.5 of
said Lease and is executed by the Landlord and Tenant in order to confirm
the following:
1. Interior Leased Premises. The exact amount of square footage
contained within the Interior Leased Premises in square feet.
2. Rent and Other Payments. The monthly Base Rent payment during
the Initial Term of the Lease is $ and the Initial Common
Area Maintenance Service Charge payment is $
per month and the intitial tax payment is
$ per month.
3. Rent Commencement Date. The Rent Commencment Date is
, 1995 and the Termination Date of the Initial
Term of the Lease is , 2000.
4. The final Exhibits A and A--1 are attached hereto.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Addendum
on this, the day of , 1995.
Witness: LANDLORD:
DUFFY WALL STREET L.L.C.
By: /s/ NORMAN J. DUFFY
TENANT:
CFX BANK
By:
STATE OF NEW HAMPSHIRE
COUNTY OF
Appeared on this day of , l995,
, duly authorized manager of Duffy Wall Street
L.L.C., and acknowledged this instrument for the purposes therein
contained. Before me,
Justice of the Peace
Notary Public
STATE OF NEW HAMPSHIRE
COUNTY OF
Appeared on this day of , l995
, duly authorized
of CFX Bank, a and acknowledged this instrument for
the purposes therein contained, on behalf of the Bank. Before me,
Justice of the Peace
Notary Public
EXHIBIT B
Legal Description
That certain tract or parcel of land situated in Manchester
Hillsborough County, New Hampshire, bounded and described as follows:
Beginning at a drill hole at the intersection of Elm and Spring
Streets, said point being the southeast corner of the herein described
parcel; thence
1. S 89[Degrees] 53'46" W, 291.21 feet along the northerly side of
Spring Street to a drill hole at land now or formerly of BankEast; thence
2. N 08[Degrees] 35'22" W, 34.31 feet to a point; thence
3. N 07[Degrees] 34'36" W, 37.30 feet to a nail at an angle point in a
retaining wall; thence
4. N 79[Degrees] 16'58" W, 3.83 feet to a nail at an angle point in a
retaining wall; thence
5. N 07[Degrees] 57'03" W, 106.24 feet all by land of BankEast to a nail
in the retaining wall; thence
6. N 81[Degrees] 21'54" E, 300.90 feet by land of 2 Wall Street Ltd. to
an iron pin on the westerly side of Elm Street; thence
7. S 07[Degrees] 48'01" E, 165.09 feet to a drill hole on the westerly
side of Elm Street; thence
8. S 00[Degrees] 08'22" E, 58.55 feet by the westerly side of Elm
Street to the point of beginning. Containing 1.380 acres or 60,125 square
feet.
EXHIBIT C
Initial work to be Performed by Landlord
DIVISION OF THE PREMISES
Landlord will erect structural members, enclose one half the
existing atrium above the Leased Premises, enclose the Leased Premises
with a demising wall, as shown on the layout of Exhibit A, all in
substantial conformance with the illustrations in Exhibit A--1.
EXHIBIT C--1
Work to be Completed by Landlord Prior
to Rent Commencment Date
FIT-OUT OF LOBBY AREA
Landlord will complete fit-out of the existing lobby in substantial
conformance with the illustration in Exhibit A including a finished
staircase to the third level, in a design and with materials compatible
with the Tenant's Leased Premises, in a manner suitable for professinal
uses.
EXHIBIT D
Tenant's Fit-up Work
Tenant shall complete the work within Tenant's Interior Leased
Premises as outlined and shown on Exhibit A including the removal of
existing interior petitions and the construction of new interior petitions
where applicable. Finish work and finish materials shall be appropriate
for first class professional banking offices.