EXHIBIT (10)(c)(1)
INDEX TO LEASE
FROM
ETHEL V. SLAWSBY
to
THE HIBERNIA SAVINGS BANK
ARTICLE NUMBER CAPTION Page
ARTICLE I Basic Lease Provisions - Exhibits ..................... 1
ARTICLE II Demise - Premises - Term ............................... 5
ARTICLE III Yearly Rent ........................................... 6
ARTICLE IV Taxes ................................................. 6
ARTICLE V Maintenance of Common Areas and Tenant's Contributions . 7
ARTICLE VI Utilities; Parking .................................... 8
ARTICLE VII Condition of Premises ................................. 9
ARTICLE VIII Use of Premises ....................................... 10
ARTICLE IX Subletting and Assignment ............................. 11
ARTICLE X Maintenance of Building ............................. 13
ARTICLE XI Indemnity and Public Liability Insurance .............. 15
ARTICLE XII Landlord's Access to Premises ......................... 16
ARTICLE XIII Insurance ............................................. 17
ARTICLE XIV Damage Clause ......................................... 18
ARTICLE XV Eminent Domain ........................................ 19
ARTICLE XVI Other Stores .......................................... 21
ARTICLE XVII Landlord's Remedies ................................... 21
ARTICLE XVIII Miscellaneous Provisions .............................. 22
Section 1 Waiver ............................................ 22
Section 2 Covenant of Quiet Enjoyment, Etc. ................. 23
Section 3 Status Report. ................................... 23
Section 4 Notice to Mortgagee .............................. 24
Section 5 Assignment of Rents .............................. 24
Section 6 Mechanic's Liens. ................................. 24
Section 7 No Brokerage. ..................................... 25
Section 8 Invalidity of Particular Provisions. .............. 25
Section 9 Provisions Binding .......................... 25
Section 10 Governing Law. ................................... 25
Section 11 Recording. ....................................... 25
Section 12 Notices. ......................................... 26
Section 13 When Lease Becomes Binding. ...................... 26
Section 14 Paragraph Headings. .............................. 26
Section 15 Lease Superior or Subordinate to Mortgagee ....... 26
LEASE
This Lease is made this tenth day of November, 1986 by and between
ETHEL V. SLAWSBY of Duxbury, Massachusetts, having a mailing address at c/o
Ben's Liquors, 551 Washington Street, Weymouth, Massachusetts 02188
("Landlord") and The Hibernia Savings Bank, a Massachusetts banking
corporation, having a mailing address at 263 Washington Street, Boston,
Massachusetts ("Tenant").
This instrument is an Indenture of Lease in which the Landlord and the
Tenant are the parties hereinabove named and which relates to retail
street-level store-front property in the Building, as shown on Exhibit A,
commonly known as Capitol Market Center, located at 731 Hancock Street,
Quincy, Massachusetts. The parties to this instrument hereby agree with each
other as follows:
ARTICLE I
Basic Lease Provisions - Exhibits
Section 1.1. Introduction.
The following sets forth basic data and identifying Exhibits, elsewhere
hereinafter referred to in this Lease, and where appropriate, constitute
definitions of the terms hereinafter listed.
Section 1.2. Basic Data.
Date: November 10, 1986
Landlord: Ethel V. Slawsby
551 Washington Street
Weymouth, Massachusetts 02188
For Notices to Landlord, add:
M. Bordwin, Esquire
Rubin & Rudman
Three Center Plaza
Boston, MA 02108
Tenant: The Hibernia Savings Bank,
a Massachusetts banking corporation
263 Washington Street
Boston, Massachusetts
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For Notices to Tenant, add:
Thomas J. Carens, Esq.
Roche, Carens & DeGiacomo
One Post Office Square
Boston, MA 02109
Lease Term: Commencing on the Commencement Date and expiring on
the fifteenth (15th) anniversary of the last day of
the calendar month in which the Rent Commencement
Date shall have occurred ("Term Expiration Date").
Commencement Date: The execution date hereof.
Rent Commencement Date: The earlier of (x) May 1, 1987 or (y)
the date Tenant opens the premises for
business with the public.
Premises Area: Street-level - 5,006 sq. ft. (plus auxiliary
mechanical equipment basement area of 2,396
sq. ft.) Basement-level - 2,629 sq. ft.
finished
Yearly Rent in respect
of Street-Level Premises:
Lease Year*
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1: $30,036.00 (i.e., a monthly payment of
$2,503.00)
2: $35,042.00 (i.e., a monthly payment of
$2,920.17)
3-8: $40,048.00 (i.e., a monthly payment of
$3,337.33)
9: $45,054.00 (i.e., a monthly payment of
$3,754.50)
10: $50,060.00 (i.e., a monthly payment of
$4,171.67)
11 through the
Term Expiration
Date: Fair Market Rental Value, as defined
in the Rider as Exhibit B, of the
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* For the purposes hereof, "Lease Year" shall be defined as any
twelve-(12)-month period commencing as of the Rent Commencement Date or as of
any anniversary of the Rent Commencement Date.
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premises, but in no event, however, shall
the Yearly Rent payable in respect of the
street-level portion of the premises be
less than the Yearly Rent for and in
respect of the Tenth (10th) Lease Year, nor
shall it exceed Twenty ($20.00) Dollars per
square foot of floor area.
Yearly Rent in respect
of Basement-Level Premises:
Lease Year*
-----------
1 through the
Term Expiration
Date $6,000.00 (i.e., a monthly payment
of $500.00)
Tenant's Tax and CAM Portion: 37.09%
Initial Monthly Payment on Account
of Tenant's Pro Rata Share of Shopping
Center Common Area Charges (Computed
at the rate of $.50 per sq. ft.
of premises area per annum): $210.00 per calendar month
Use: Retail bank branch facility and such other uses
as are permitted by the state banking regulatory
authorities to be carried on by a bank in the
nature of the herein Tenant and for no other
purpose.
Landlord shall not lease the adjoining premises (presently a CVS retail
store) to any occupant providing financial services that are offered in whole or
in part by the tenant.
Section 1.3. Option Periods.
Tenant's Option to Extend the Term of Lease
A. On the condition, which condition Landlord may waive, at its election,
by written notice to Tenant at any time, that Tenant is not in default of its
covenants and obligations under the Lease, Tenant shall have the option to
extend the term of this Lease for three (3) additional and consecutive
five-(5)-year terms, the first such additional term commencing as of the day
after the expiration of the initial term of the Lease, the second
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* For the purposes hereof, "Lease Year" shall be defined as any
twelve-(12)-month period commencing as of the Rent Commencement Date or as of
any anniversary of the Rent Commencement Date.
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such additional term commencing as of the day after the expiration of the first
such additional term, and the third such additional term commencing as of the
day after the expiration of the second such additional term. Tenant may exercise
such options to extend by giving Landlord written notice on or before the date
nine (9) months prior to the expiration date of the then current term of the
Lease. Upon the timely giving of such notice, the term of this Lease shall be
deemed extended upon all of the terms and conditions of this Lease, except that
the Yearly Rent shall be as hereinafter set forth. If Tenant fails to give
timely notice, as aforesaid, Tenant shall have no further right to extend the
term of this Lease, time being of the essence of this Section 1.3.
B. Yearly Rent
The Yearly Rent during each such additional term shall be the Fair Market
Rental Value, as defined in Exhibit B (which together with the other exhibits
and schedules hereto, are attached hereto and incorporated by reference as a
part hereof as though stated verbatim herein), as of the commencement of such
additional terms, of the premises then demised to Tenant; provided, however,
that in no event shall the Yearly Rent payable during each such additional term
be less than the Yearly Rent payable for the twelve-month period immediately
preceding the commencement of each such additional term. The Fair Market Rental
Value for each such additional term shall be designated by Landlord as of the
first day of each such additional term.
If the Fair Market Rental Value of the demised premises shall be
unacceptable to Tenant, then Tenant may elect, by notice given to Landlord
within thirty (30) days after Tenant is notified of such Fair Market Rental
Value by Landlord, to terminate this Lease, such termination to be and become
effective on the 270th day next following the giving of such notice of election
of termination. And upon the giving of such timely notice of termination, this
Lease and the term hereof shall terminate on such effective date, as aforesaid,
with the same force and effect as if such effective date were stated herein as
the date set for the expiration of the term hereof.
C. Tenant shall have no further option to extend the term of the Lease
other than the three (3) additional five (5) year terms herein provided.
Section 1.4. Tenant's Termination Right.
Notwithstanding anything to the contrary herein contained, Tenant, at its
sole cost and expense, shall procure all governmental regulatory approvals
necessary to locate its premises in the Building. Tenant shall apply for such
approvals promptly after the Commencement Date, and Tenant shall use its best
efforts to obtain such approvals. If Tenant, despite such efforts, shall be
denied such approvals or shall fail to obtain such approvals on or before
February 15, 1987, ("Banking Approval Date") then Tenant
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shall have the right to terminate this Lease exercisable by a written
thirty-(30)-day termination notice given on or after the Banking Approval Date.
If Tenant shall have obtained such approvals on or before the thirtieth (30th)
day after Landlord receives such termination notice, Tenant shall have no
termination right under this Section 1.4 and Tenant's termination notice shall
be deemed void and of no further force or effect. If Tenant shall have failed to
obtain such approvals on or before March 15, 1987, then Landlord may elect to
terminate this Lease by giving Tenant written notice at any time after such
date, stating an effective termination date; and if such approval shall not have
been obtained by such effective date, then this Lease shall terminate in
accordance with such notice and shall thereupon cease to be of any further force
and effect.
ARTICLE II
Demise -Premises - Term
Section 2.1. The Landlord hereby leases to the Tenant, and the Tenant
hereby leases from the Landlord, upon and subject to the terms and provisions of
this Lease, the portion of the building (which portion is sometimes hereinafter
referred to as the "demised premises") shown as outlined or hatched on Exhibit
"A" hereto annexed and made a part hereof and containing approximately the floor
area as shown in Article I - Basic Lease Provisions.
Section 2.2. Excepting and reserving to the Landlord the roof, structural
members and exterior walls of the building of which the demised premises are a
part; and further reserving to the Landlord the right to place in the demised
premises (in such manner as to reduce to a minimum the interference with
Tenant's use of the demised premises) utility lines, pipes, ducts, vents and the
like, to serve the demised premises and/or premises other than the demised
premises, and to replace, maintain and repair such utility lines, pipes, ducts,
vents and the like, in, over and upon the demised premises as may have been
installed in the building from time to time provided however that any such
lines, pipes or the like shall be concealed above Tenant's ceiling or in boxed
bus ducts when installed.
Section 2.3. To have and to hold the demised premises unto the Tenant for
the term as stated in Article I, Basic Lease Provisions.
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ARTICLE III
Yearly Rent
Section 3.1. Tenant covenants and agrees to pay to Landlord during the
initial term hereof Yearly Rent for said premises at the rates stated in Article
I - Basic Lease Provisions.
Section 3.2. Such Yearly Rent shall be payable in equal monthly
installments on the first day of each and every month in advance and
proportionately for any partial month.
ARTICLE IV
Taxes
Section 4.1. Landlord shall pay, or cause to be paid, before the same
become delinquent, all general and special taxes, including assessments for
local improvements and other governmental charges which may be lawfully charged,
assessed or imposed upon the entire development of which the demised premises
are a part including the entire building and land area, provided however, that
if authorities having jurisdiction assess such real estate taxes, assessments,
or other charges which Landlord deems excessive, Landlord may defer compliance
therewith to the extent permitted by the laws of Massachusetts, so long as the
validity or amount thereof is contested by Landlord in good faith, and so long
as Tenant's occupancy of the demised premises is not disturbed.
Section 4.2. Tenant shall pay all such taxes which may be lawfully
charged, assessed, or imposed upon all Tenant's fixtures and equipment of every
type, and also upon all personal property in said demised premises, and Tenant
shall pay all license fees which may be lawfully imposed upon the business of
Tenant conducted upon the demised premises.
Section 4.3. (a) With respect to the taxes payable by the Landlord
pursuant to Section 4.1 hereof, it is agreed that Tenant shall pay to Landlord
that portion thereof determined by multiplying said taxes by a fraction, the
numerator of which is the total leasable square footage of the street-level
floor area of the demised premises, and the denominator of which is the total
square footage of the street-level floor area of the entire said Building
("Tenant's Tax and CAM Portion"), as stated in Article I - Basic Lease
Provisions. There shall be excluded from the denominator of such fraction the
floor area of non-selling mezzanines and basement (if any), malls, passageways,
public stairs, service corridors, elevators, and the like.
(b) Tenant's fractional share of such taxes shall be equitably adjusted
for and with respect to the first and last partial tax years (if any) of the
term of this Lease. Where applicable tax bills and computations are not
available prior to
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the end of the term hereof, then a tentative computation shall be made on the
basis of the previous year's taxes payable by Tenant, with a final adjustment to
be made between Landlord and Tenant promptly after all bills and computations
are available for such period.
(c) Tenant's pro rata share of said taxes shall be due and payable within
ten (10) days after receipt by Tenant of Landlord's invoice plus a copy of the
tax bills involved. However, if the holder of the first mortgage which shall
encumber the demised premises shall require monthly tax deposits, Tenant agrees
to make monthly deposits with Landlord of its pro rata share of such taxes, with
a final adjustment to be made as soon as the amount of said pro rata share has
been determined.
(d) In every case, said taxes shall be adjusted to take into account any
abatement or refund thereof allocable to Landlord, and paid during the term
hereof less all of Landlord's costs of securing such abatement or refund.
Section 4.4. The foregoing provisions of this ARTICLE IV are predicated
upon the present system of taxation in the Commonwealth of Massachusetts. If
taxes upon rentals or other taxes based upon Landlord's ownership of the
building or shopping center of which the demised premises are a part other than
income taxes levied upon Landlord or Landlord's partners shall be substituted,
in whole or in part, for the present ad valorem real estate taxes, then
Tenant's pro rata share of taxes (as set forth in Section 4.3 immediately above)
shall be based upon such taxes on rentals to the extent to which the same shall
be a substitute for or in addition to present ad valorem real estate taxes but
only to the extent such taxes would apply were the building or shopping center
the only property of Landlord.
ARTICLE V
Maintenance of Common Areas and Tenant's Contribution
Section 5.1. The shopping center parking lot shall be maintained
(including lighting) by Landlord in a reasonably good and serviceable condition
throughout the term of this Lease.
Section 5.2. (a) All costs and expenses of every kind and nature paid or
incurred by Landlord in operating, managing, equipping, policing (if and to the
extent provided by Landlord), lighting, repairing, replacing, repairing and
maintaining (including cleaning, snow removal, landscaping and gardening),
building (but not Tenant) signs, utility conduits and pipes, elevators
(including service contracts therefor) and all other interior and exterior
common areas ("Common Area Maintenance" Charges or "CAM") shall be prorated,
and Tenant shall share therein in the manner hereinafter provided. Such costs
and expenses shall likewise include (but shall not be limited to)
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water and sewer charges; premiums for liability, property damage, fire,
workman's compensation, and other insurance (including all insurance, hazard and
otherwise, carried by Landlord on the entire building of which the demised
premises are a part); wages, unemployment taxes, social security taxes, costs of
waste removal; amounts paid to outside contractors for matters to be performed
hereunder; personal property taxes and assessments; fees for required licenses
and permits, supplies, repairing and restriping when required of the parking
areas, the maintenance and repair of all curbing and directional markers,
security, and adequate lighting during all hours of darkness that Tenant shall
be open for business. With the sole exception of a ten (10%) percent
administrative fee, Common Area Maintenance Charges will not include any
additional management, administrative or audit fees.
(b) Tenant shall pay all CAM charges in respect of the "Wentworth Lot"
(see Sec. 6.3, below) and its pro rata share of CAM charges in respect of the
Building and other parking areas, such share to be computed by multiplying the
whole of said costs and expenses by the Tenant's Tax and CAM Portion as stated
in Article I - Basic Lease Provisions.
(c) Tenant's pro rata share shall be paid in monthly installments,
(initially estimated as stated in Article I - Basic Lease Provisions) in the
amount established by Landlord, based on the previous year's actual amounts, on
the first day of each and every calendar month, in advance. Within ninety (90)
days after the end of each calendar year during the term hereof, Landlord shall
furnish to Tenant a statement in reasonable detail setting forth the computation
of such total costs and expenses; thereupon there shall be a prompt adjustment
between Landlord and Tenant, with payment to, or repayment by Landlord, as the
case may require, to the end that Landlord shall receive the entire amount of
Tenant's pro rata share of said costs and expenses and no more.
ARTICLE VI
Utilities; Parking
Section 6.1. Tenant shall pay for all of its requirements for utilities to
the extent the same are separately metered, including, but not limited to, gas,
steam, water, electricity, and the like. In the event that Landlord shall elect
to supply any of such utilities, Tenant agrees to purchase the same from
Landlord, provided the rate does not exceed the rate which Tenant would be
required to pay to the utility company furnishing the same to the said
development.
Section 6.2. Tenant shall itself provide and install a system to supply
heating, ventilating, and air-conditioning to the demised premises at Tenant's
own sole cost and expense.
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Section 6.3. Tenant shall have the non-exclusive right, together with the
adjoining Tenant of the Building of which the demised premises are a part and
any others lawfully entitled thereto, to use the parking areas adjacent to and
serving the Building. Tenant acknowledges that Landlord's rights to the parking
area adjacent to the said Building derive from a short- term, at-will
arrangement with the Church which owns the parking area. In addition, Tenant
shall have the exclusive right to utilize Landlord's vacant parcel located
across Wentworth Road (called "Wentworth Lot"), opposite the curb-cut entrance
to the parking areas lying behind and adjacent to the said Building, provided,
however, said Wentworth Road parking lot area shall be used only for the parking
of motor vehicles by Tenant's employees and customers for their convenience
while at the Tenant's banking offices, and for no other purpose whatsoever,
except as in Section 6.4 described.
Section 6.4. Landlord acknowledges that Tenant may wish to install, to
whatever extent, if any, permitted by applicable law and regulations, a facility
to house an automatic teller machine or drive-through window, so-called on the
Wentworth Lot. Landlord agrees to cooperate with such effort, at no cost or
expense, however (all of which shall be borne by Tenant), provided that Landlord
shall have the right of prior approval of Tenant's plans and specifications for
any such Wentworth Lot facillity. Landlord shall not unreasonably withhold or
delay such approval.
ARTICLE VII
Condition of Premises
Section 7.1. Landlord shall provide and install a gas, roof-mounted HVAC
unit on the roof of the Building and stub in the piping to the premises.
Landlord shall assign to Tenant the vendor's/installer's warranty on such
equipment, it being understood that from and after such installation, Tenant
shall be responsible for the repair, maintenance, replacement, etc. thereof
pursuant to Article X, below. In addition, Landlord shall remove the fixtures,
equipment, etc., as set forth in Exhibit C - Premises Clean-Up Details, in order
to prepare the premises for Tenant's construction. Tenant shall, at the earliest
practicable date, deliver to Landlord a schematic plan setting forth the
alterations, renovations, additions, etc. which Tenant desires to perform in the
demised premises, including, without limitation, the removal of the projection
structure located on Wentworth Street which serves as an entrance to the
basement ("Tenant's Work") which plan shall be subject to Landlord's approval,
such approval not to be unreasonably withheld or delayed. Tenant shall then
perform Tenant's Work in accordance with plans and specifications to be
developed by Tenant based upon such schematic plan. Tenant shall deliver to
Landlord a complete set of final working drawings and construction plans prior
to the commencement of any of Tenant's Work. Tenant shall also provide to
Landlord a copy of any "as-built" plans as soon as the same are available.
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Section 7.2. Tenant's Work shall meet the following requirements: (i) same
shall be done in a good and first-class workmanlike manner; (ii) same shall not
adversely affect the structural strength or common services or utilities of the
demised premises or the Building of which they are a part; (iii) Tenant shall
abide by all applicable laws, ordinances, and insurance requirements; and
Tenant's Work shall be done in full conformity with plans and specifications
which shall first have been approved by Landlord.
ARTICLE VIII
Use of Premises
Section 8.1. It is understood, and the Tenant so agrees, that the demised
premises during the term of this Lease shall be used and occupied by the Tenant
solely for the use stated in Article I - Basic Lease Provisions, and no other
use.
Section 8.2. Tenant shall strictly comply with the restrictive provisions
in the lease(s) of other premises in the Building as described in Exhibit D.
Section 8.2. Tenant further agrees to conform to the following provisions
during the entire term of this Lease:
(a) Tenant shall always conduct its operations in the demised premises
under its present trade name, unless Landlord shall otherwise consent in
writing, which consent shall not be unreasonably withheld;
(b) No auction, fire or bankruptcy sales may be conducted within the
demised premises without the previous written consent of the Landlord;
(c) Intentionally deleted;
(d) Tenant shall keep any display windows of the demised premises clean
and shall keep the same electrically lighted during such reasonable after-hours
periods of time; ;
(e) All trash, refuse, and the like, shall be kept within the demised
premises at all times, and in no event stored outside of the same;
(f) Tenant shall not place on the exterior of the demised premises
(including, but without limitation, windows, doors and entrance lobbies) any
signs other than those which shall first have been approved by Landlord,
including replacements thereof. The signs desired by Tenant shall be indicated
in Tenant's plans and specifications to be submitted to Landlord for approval;
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(g) Tenant shall not perform any act or carry on any practice which may
injure the demised premises or any other part of the Building, or cause any
offensive odors or loud noise (including, but without limitation, the use of
loudspeakers), or constitute a nuisance or menace to any other occupant or other
persons in the Building or shopping center, and in no event shall any noises or
odors be emitted from the demised premises;
(h) Subject to applicable laws and regulation, the demised premises will
be kept open for business at least during the usual business days and hours for
a business of the type of Tenant's in the city or town where the Building is
located. Tenant agrees that it is an affirmative covenant and obligation of
Tenant under this Lease to maintain the demised premises open for business and
that it is of material importance and a material inducement to Landlord in
making this Lease that the demised premises will be so open for transacting
business and further that Landlord and other tenants of the Building acting in
reliance upon Tenant's covenants to maintain the demised premises open for
business; and
Section 8.3. Landlord shall use reasonable efforts to enforce similar
provisions of the leases of other tenants, but Landlord shall have no liability
to Tenant for failure to do so.
ARTICLE IX
Subletting and Assignment
Section 9.1. In the event that Tenant desires to sublet or assign all or
substantially all of the street-level premises demised to Tenant:
A. Provided that Tenant shall first have notified Landlord in writing of a
proposed assignment of Tenant's interest in this Lease or of the term of a
proposed sublease and offered to terminate the Lease and Landlord shall not,
within sixty (60) days of receipt of such offer have accepted the same, Landlord
agrees to not unreasonably withhold its consent to a subletting of the demised
premises or to an assignment of Tenant's interest in this Lease, as the case may
be, by Tenant to a person, firm or corporation which, in Landlord's reasonable
opinion, is (i) financially responsible and of good reputation, and (ii) is
engaged in a business, the functional aspects of which, with respect to the
premises, are substantially similar to the use of other premises made by other
retail tenant(s) in the Building. Notwithstanding anything to the contrary in
the foregoing contained:
1. If Tenant is in default of its obligations under the Lease
at the time that it makes the aforesaid offer to Landlord,
such default shall be deemed to be a "reasonable" reason
for Landlord withholding
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its consent to any proposed subletting or assignment; and
2. If Tenant does not enter into a sublease with a subtenant (or
an assignment to an assignee, as the case may be) approved by
Landlord, as aforesaid, on or before the date which is one
hundred (100) days after the earlier of: (x) the expiration of
said thirty-(30)-day period, or (y) the date that Landlord
notifies Tenant that Landlord will not accept Tenant's offer
to terminate or suspend the Lease, then Landlord shall have
the right arbitrarily to withhold its consent to any
subletting or assignment proposed to be entered into by Tenant
after the expiration of said one hundred (100) day period
unless Tenant again offers, in accordance with this Paragraph
A, to terminate the Lease. If Tenant shall make any subsequent
offers to terminate the Lease pursuant to this Paragraph A any
such subsequent offer shall be treated in all respects as if
it is Tenant's first offer to suspend or terminate the Lease
pursuant to this Paragraph A, provided that the period of time
Landlord shall have in which to accept or reject such
subsequent offer shall be thirty (30) days.
B. Notwithstanding anything to the contrary herein contained, Tenant shall
have no rights, under Paragraph A of this ARTICLE IX prior to the date
thirty-six (36) months after the Commencement Date. Without limiting the
foregoing, Tenant shall have no right to give Landlord a written notice offering
to terminate or suspend the term of the Lease pursuant to this ARTICLE IX prior
to the date thirty-six (36) months after the Commencement Date.
C. No subletting or assignment shall ever relieve Tenant of its primary
obligation as party-Tenant hereunder.
D. If the rent and other sums and all considerations received by Tenant on
account of a sublease or assignment of the demised premises or of Tenant's
interest therein, as the case may be, exceed the Yearly Rent and other charges
allocable to the space subject to the sublease, Tenant shall pay to Landlord, as
an additional charge, fifty (50%) percent of such excess, monthly as received by
Tenant, less Tenant's reasonable expense incurred in respect of such sublease or
assignment including brokerage commissions to a licensed real estate broker,
advertising and reasonable attorneys fees.
Section 9.2. In the event that Tenant desires to sublet or assign less
than all or substantially all of the premises demised to Tenant, Tenant shall
have the right, with Landlord's prior consent, which consent shall not be
unreasonably withheld or
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delayed, but without offering to terminate or suspend the Lease, in accordance
with Section 9.2 of this ARTICLE IX, to sublet such portion of the premises to a
person, firm or corporation which, in Landlord's reasonable opinion, satisfies
the requirements of clauses (i) and (ii) of Paragraph A of Section 9.2 of this
ARTICLE IX.
Section 9.3. Tenant shall have the right, without obtaining Landlord's
consent, to allow an Affiliated Entity, as hereinafter defined, to utilize the
premises in accordance with ARTICLE VIII, so long as such entity remains in such
relationship to Tenant. For the purposes hereof, an "Affiliated Entity" shall be
defined as any entity which is controlled by, is under common control with, or
which controls Tenant. For the purposes hereof, control shall mean the direct or
indirect ownership of more than fifty (50%) percent of the beneficial interest
of the entity in question.
Section 9.4. Tenant shall have the right, without obtaining Landlord's
consent, to allow a stockbroker, mutual fund sales agent, insurance or real
estate broker, or the like to utilize desk space for activities which have been
approved by the state and/or federal regulatory agencies for a regulated banking
corporation.
ARTICLE X
Maintenance of Building, Etc.
Section 10.1.
(a) Other than as provided below in this Section, Landlord agrees to keep
in good order, condition, and repair, the exterior (except glass and glass
windows and the so-called store front, irrespective of which party installed the
same), roof, foundations, and structural portions of the Building, except for
any damage thereto caused by any act or negligence of Tenant, its employees,
agents, licensees, or contractors. Landlord shall not be responsible to make any
other improvements or repairs of any kind upon the demised premises, but this
paragraph is not intended to refer to damage by fire or other insured risk to
the demised premises, provision for which is hereafter made.
(b) If Landlord shall fail to comply with any of its repair and
maintenance obligations under this Article X for ten (10) business days after
notice from Tenant of the need therefor, then Tenant shall have the right, at
its option, to cure such breach at Landlord's expense, provided, however, that
prior to taking such action Tenant shall have given Landlord notice of its
intention so to proceed, which notice shall be received by Landlord at least 72
hours before Tenant begins such cure. Landlord agrees to reimburse Tenant for
all reasonable costs and expenses incurred as a result thereof together with
interest at the highest rate
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legally permitted in Massachusetts, upon demand. Landlord shall have similar
rights in the event that Tenant shall fail to comply with its repair and
maintenance obligations under this Lease, but Tenant shall grant Landlord
similar time periods to cure any such defaults.
Section 10.2. Except as specifically herein otherwise provided, Tenant
agrees that from and after the date that possession of the demised premises is
delivered to Tenant and until the end of the term hereof, it will keep neat and
clean and maintain in good order, condition and repair, the demised premises and
every part thereof, including, without limitation, the store front and the
exterior and interior portions of all doors, windows, plate glass and showcases
surrounding the demised premises, all plumbing and sewage facilities within the
demised premises, fixtures and interior walls, floors, ceilings, signs
(including exterior signs where permitted), and all wiring, electrical systems,
mechanical systems, interior building appliances, and similar equipment serving
the premises. Tenant shall, at Tenant's expense, repaint, refurbish, and remodel
the demised premises and any part and portion thereof from time to time to
assure that the same are kept in a first-class, tenantable, and attractive
condition throughout the term of this Lease. There is excepted from this
paragraph, however, damage to such portions of the demised premises originally
constructed by Landlord as is caused by those hazards which are covered by the
policies of fire insurance with extended coverage endorsements carried by
Landlord and described in ARTICLE XIII hereof. Tenant further agrees that the
demised premises shall be kept in a clean, sanitary and safe condition in
accordance with the laws of the Commonwealth of Massachusetts and ordinances of
the County and Municipality wherein the demised premises are located, and in
accordance with all directions, rules and regulations of the Health Officer,
Fire Marshall, Building Inspector, and other proper officers of the governmental
agencies having jurisdiction thereover. Tenant shall not permit or commit any
waste.
Section 10.3. Tenant shall not make any alterations, improvements and/or
additions to the demised premises without first obtaining, in each instance, the
written consent of the Landlord, which consent Landlord agrees will not be
unreasonably withheld, except that Tenant may make non-structural alterations to
the interior costing not more than Ten Thousand ($10,000.00) Dollars, upon
condition that such alterations shall be made in accordance with all applicable
laws and in a good and first-class, workmanlike manner and provided that such
alterations, improvements and/or additions shall not, upon completion thereof,
materially, adversely affect any of the Building's systems. Any and all
alterations, additions, improvements, and fixtures which may be made or
installed by either Landlord or Tenant upon the demised premises and which in
any manner are attached to the floors, walls or ceilings (including, without
limitation, any linoleum or other floor covering of similar character which may
be cemented or otherwise adhesively affixed to the floor) shall
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remain upon the demised premises, and at the termination of this Lease shall be
surrendered with the premises as a part thereof without disturbance, molestation
or injury. However, the usual trade fixtures and furniture which may be
installed in the demised premises prior to or during the term hereof at the cost
of Tenant may be removed by Tenant from the demised premises upon the
termination of this Lease if, but only if, Tenant is not then in default
hereunder. Further, Tenant covenants and agrees, at its own cost and expense, to
repair any and all damage to the demised premises resulting from or caused by
such removal. In no event shall Tenant be entitled to remove any heating,
ventilating, or air-conditioning equipment.
ARTICLE XI
Indemnity and Public Liability Insurance
Section 11.1. Tenant agrees to indemnify and save harmless the Landlord
from and against all claims of whatever nature arising from any act, omission or
negligence of the Tenant, or Tenant's contractors, invitees, licensees, agents,
servants, or employees, or arising from any accident, injury, or damage
whatsoever caused to any person, or to the property of any person occurring
during the term hereof in or about the Tenant's demised premises, or arising
from any accident, injury or damage occurring outside of the demised premises
but within the Building or shopping center, where such accident, damage or
injury results or is claimed to have resulted from an act or omission on the
part of Tenant or Tenant's licensees, invitees, agents or employees. This
indemnity and hold-harmless agreement shall include indemnity against all costs,
expenses and liabilities incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof.
Section 11.2. Tenant agrees to maintain in full force during the term
hereof and during any fixturing period prior to the term hereof a policy of
public liability and property damage insurance under which the Landlord and
Tenant are named as insureds, and under which the insurer agrees to indemnify
and hold Landlord harmless from and against all costs, expense and/or liability
arising out of or based upon any and all claims, accidents, injuries, and
damages mentioned in Section 11.1 of this ARTICLE XI. Each such policy shall be
noncancellable with respect to the Landlord without ten (10) days' prior written
notice to Landlord, and a duplicate original or certificate thereof shall be
delivered to Landlord. The minimum limits of liability of such insurance shall
be One Million ($1,000,000.00) Dollars single limit for injury or death and
damage to property.
Section 11.3. Tenant agrees to use and occupy the demised premises and to
use such other portions of the development as it is herein given the right to
use at its own risk; and that Landlord shall have no responsibility or liability
for any loss of
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or damage to fixtures or other personal property of Tenant. The provisions of
this Section shall apply during the whole of the term hereof and, if permission
is given to Tenant to install fixtures prior to the commencement of the term
hereof, then prior to such commencement as well.
Section 11.4. Tenant agrees that Landlord shall not be responsible or
liable to the Tenant, or to those claiming by, through or under the Tenant, for
any loss or damage that may be occasioned by or through the acts or omissions of
persons occupying adjoining premises or any part of the premises adjacent to or
connecting with the premises demised hereunder or any other part of the
Building, shopping center, or otherwise, or for any loss or damage resulting to
the Tenant or those claiming by, through or under Tenant, or its or their
property, from the bursting, stopping or leaking of water, gas, sewer or steam
pipes.
Section 11.5. The foregoing provisions of this ARTICLE XI (as well as any
other provisions dealing with indemnity and the like by the Tenant of the
Landlord) shall be deemed to be modified in each case by the insertion in the
appropriate place of the ", to the extent permitted by applicable law;"
language: "except as otherwise provided in Mass. G.L. Ter. Ed., but in no event
shall Landlord at any time ever be liable for consequential damages.
ARTICLE XII
Landlord's Access to Premises
Section 12.1. Landlord and his designees shall have the right to enter
upon the demised premises at all reasonable hours for the purpose of inspecting
or making repairs to the same. If repairs are required to be made by Tenant
pursuant to the terms hereof, Landlord may demand that Tenant make the same
forthwith, and if Tenant refuses or neglects to commence such repairs and
complete the same with reasonable dispatch, after such demand, Landlord may (but
shall not be required so to do) make or cause such repairs to be made and shall
not be responsible to Tenant for any loss or damage that may accrue to its stock
or business by reason thereof. If Landlord makes or causes such repairs to be
made, Tenant agrees that it will forthwith, on demand, pay to Landlord as rent
the cost thereof, and if it shall default in such payment, Landlord shall have
the remedies provided in ARTICLE XVII hereof for the non-payment of rent.
Section 12.2. For a period commencing nine (9) months prior to the
termination of this Lease, Landlord may have reasonable access to the premises
herein demised for the purpose of exhibiting the same to prospective tenants.
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ARTICLE XIII
Insurance
Section 13.1. Landlord shall keep the structural portions of the Building
(i.e., excluding Tenant's leasehold improvements and betterments, installations,
work, equipment, contents, etc.) insured against loss or damage by fire, with
the usual so-called "replacement value" extended coverage endorsements and such
other insurance as the then holder of the first mortgage which includes the
structural portions of the Building shall require, in amounts not less than
eighty (80%) percent of the full insurable value thereof above foundation walls.
Section 13.2. Tenant agrees that it shall keep the demised premises
including, without limitation, its installations, work, contents, fixtures,
merchandise, equipment, leasehold betterments and improvements, insured to total
replacement cost against loss or damage by fire with the usual extended coverage
endorsements. It is understood and agreed that Tenant assumes all risk of damage
to its own property arising from any cause whatsoever, including, without
limitation, loss by theft or otherwise.
Section 13.3. Insofar as and to the extent that the following provision
may be effective without invalidating or making it impossible to secure
insurance coverage obtainable from responsible insurance companies doing
business in the Commonwealth of Massachusetts (even though extra premium may
result therefrom) Landlord and Tenant mutually agree that with respect to any
loss which is covered by insurance then being carried by them, respectively, the
one carrying such insurance and suffering said loss releases the other of and
from any and all claims with respect to such loss; and they further mutually
agree that their respective insurance companies shall have no right of
subrogation against the other on account thereof. In the event that extra
premium is payable by either party as a result of this provision, the other
party shall reimburse the party paying such premium the amount of such extra
premium. If, at the written request of one party, this release and
non-subrogation provision is waived, then the obligation of reimbursement shall
cease for such period of time as such waiver shall be effective, but nothing
contained in this Section shall be deemed to modify or otherwise effect releases
elsewhere herein contained of either party for claims.
Section 13.4. Tenant covenants and agrees that it will not do or permit
anything to be done in or upon the demised premises or bring in anything or keep
anything therein, which shall increase the rate of insurance on the demised
premises or on any other portion of the shopping center or Building above the
standard rate on said premises and Building with a store of the type described
in Section 8.1 of ARTICLE VIII located in the demised premises; and Tenant
further agrees that in the event it shall do any of the foregoing, it will
promptly pay to Landlord on
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demand any such increase resulting therefrom, which shall be due and payable as
additional rent hereunder.
ARTICLE XIV
Damage Clause
Section 14.1. In case during the term hereof the demised premises shall be
partially damaged (as distinguished from "substantially damaged", as that term
is hereinafter defined) by fire or other casualty, Landlord shall forthwith
proceed to repair such damage and restore the Building structure and exterior
walls, to substantially their condition at the time of such damage, but Landlord
shall not be responsible for any delay which may result from any cause beyond
Landlord's reasonable control, and Tenant shall forthwith proceed to restore all
interior portions of the premises and all systems serving the same (i.e.,
Tenant's leasehold improvements and betterments) and replace its own equipment,
etc.
Section 14.2. In case during the term hereof the demised premises shall be
substantially damaged or destroyed by fire or other casualty, the risk of which
is covered by Landlord's insurance and the cost of which is wholly paid by
Landlord's insurance, this Lease shall, except as hereinafter provided, remain
in full force and effect, and Landlord shall, proceeding with all reasonable
dispatch, repair or rebuild the Building structure and exterior walls, to
substantially their condition at the time of such damage or destruction
(subject, however, to zoning laws and building codes then in existence), but
Landlord shall not be responsible for any delay which may result from any cause
beyond Landlord's reasonable control. In case of substantial damage or
destruction, as a result of a risk which is not covered by Landlord's insurance
or which is otherwise not wholly paid for less a usual deductible by Landlord's
insurance, Landlord shall likewise be obligated to rebuild the demised premises,
all as aforesaid, unless Landlord within sixty (60) days after the occurrence of
such event gives written notice to Tenant of Landlord's election to terminate
this Lease; and upon the giving of such notice this Lease shall terminate in
accordance with the terms thereof. Tenant shall insure and repair and replace
all interior portions of the premises and all systems serving the same (i.e.,
Tenant's Leasehold improvements and betterments) and replace its own equipment,
etc.
Section 14.3. However, if the demised premises shall be substantially
damaged or destroyed by fire, windstorm, or otherwise within the last thirty-six
(36) months of the term of this Lease and Tenant shall not exercise its option
to extend the term hereof within thirty (30) days after such damage or
destruction, then either party shall have the right to terminate this Lease,
provided that notice thereof is given to the other party not sooner than thirty
(30) nor later than sixty (60) days
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after such damange or destruction. If said right of termination is exercised,
this Lease and the term hereof shall cease and come to an end as of the date of
said damage or destruction.
Section 14.4. In the event that the provisions of Section 14.1 or Section
14.2 of this ARTICLE XIV shall become applicable, the Yearly Rent, and the pro
rata charges specified in Section 5.2 of ARTICLE V of this Lease, shall be
abated or reduced proportionately during any period in which, by reason of such
damage or destruction, there is substantial interference with the operation of
the business of Tenant in the demised premises, having regard to the extent to
which Tenant may be required to discontinue its business in the demised
premises, and such abatement or reduction shall continue for the period
commencing with such destruction or damage and ending with the completion by
Landlord of such work of repair and/or reconstruction as Landlord is obligated
to do. In the event of termination of this lease pursuant to this ARTICLE XIV,
this Lease and the term hereof shall cease and come to an end as of the date of
notice of such termination.
Section 14.5. The terms "substantially damaged" and "substantial damage",
as used in this Article, shall have reference to damage of such a character as
cannot reasonably be expected to be repaired or the premises restored within
ninety (90) days from the time that such repair or restoration work would be
commenced.
ARTICLE XV
Eminent Domain
Section 15.1.
A. In the event that during the term of this Lease the premises or any
part thereof, or the use or possession thereof, is taken in condemnation
proceedings or by any right of eminent domain or for any public or quasi-public
use, this Lease and the term hereby granted shall terminate and expire on the
date when possession shall be taken by the condemnor, and rent and all other
charges payable hereunder shall be apportioned and paid in full up to that date
and all prepaid unearned rent and all other charges payable hereunder shall
forthwith be repaid by Landlord to the Tenant and neither the Landlord, nor the
Tenant shall be liable to the other for rent and all other charges payable
hereunder, damage or otherwise, for, or by reason of any matter or thing
occurring thereafter; provided, however, that if a part only of the premises
shall be so taken or condemned, and, in Tenant's reasonable opinion, the
remaining portion of the premises shall be adequate and suitable for use by it
or its subtenant for the purposes of its business, then this Lease shall
continue in full force and effect except that the fixed rent and all other
charges payable hereunder shall be reduced in the proportion that the gross
floor
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area of the part so taken or condemned shall bear to the total gross floor area
of the premises immediately prior to such taking. In such case, the Landlord
shall, at the Landlord's own expense, as speedily as circumstances permit,
repair all damage to the structural portions of the Building, as shall have been
caused by such partial condemnation and taking. The fixed rent and other charges
payable hereunder shall abate until the Building shall have been restored to a
tenantable condition including a reasonable period for Tenant to refixture and
restock the premises. The Tenant hereby waives all rights in condemnation
awards, except separate awards for Tenant's fixtures and equipment and separate
awards which may be made for Tenant's relocation expenses and the like and
hereby assigns to Landlord any other condemnation awards, compensation and
damages in respect of a taking of the shopping center or premises.
B. Notwithstanding the foregoing, in order to provide for the recapture by
Tenant of a portion of its costs of renovating its premises for use as a retail
banking facility, the parties have agreed and do hereby agree as follows:
"Award Balance" shall be the amount, if any, by which the total
compensation and damages awarded in respect of a taking exceed the sum of the
portion allocable to the land on which the Building is situated and all amounts
payable in the event of any such taking (to other than Landlord, or entities or
persons controlled by or controlling Landlord) to institutional lessors of
ground leases and holders of institutional mortgages which may now or hereafter
be placed on, encumber or affect the real property of which the premises are a
part, or any part of such real property.
"Area Ratio" shall be a fraction having as numerator the number of square
feet of Total Rentable Area of the premises as of the date of such taking and as
denominator the Total Rentable Area of the Building as of such date, namely
37.09%.
"Premises Award Balance" shall be that amount of the Award Balance
allocable to the premises determined by multiplying the Award Balance by the
Area Ratio.
"Tenant's Improvements" shall be the unamortized (i.e., undepreciated)
portion of the cost of Tenant's alterations, additions, installations and
improvements which Tenant has no right to remove under this Lease as shown on
Tenant's Federal income tax returns.
"Building Value" shall be the fair market value of the Building at the
time of such taking.
"Premises Value" shall be the product of Area Ratio multiplied by Building
Value.
Tenant shall be entitled to receive out of the Award Balance the amount of
Tenant's Improvements, provided, however, that if
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the sum of Tenant's Improvements and Premises Value exceeds the Premises Award
Balance, then Tenant's Improvements and Premises Value shall each be
proportionately reduced to an amount which, when added together, shall equal the
Premises Award Balance; and, in such event, Tenant shall be entitled to receive
out of the Award Balance the amount of Tenant's Improvements as so reduced.
ARTICLE XVI
Other Stores
[Intentionally Omitted]
ARTICLE XVII
Landlord's Remedies
Section 17.1. It is covenanted and agreed that if the Tenant shall neglect
or fail to perform or observe any of the covenants, terms, provisions or
conditions contained in this Lease and on its part to be performed or observed
within thirty (30) days after notice of default, or such additional time as is
reasonably required to correct any such default (except for payment of Yearly
Rent or other charges in which case said period of notice shall be ten (10)
days), or if the estate hereby created shall be taken on execution or by other
process of law, or if any assignment shall be made of the property of the Tenant
for the benefit of creditors, then, and in any of said cases (notwithstanding
any license of any former breach of covenant or waiver of the benefit hereof or
consent in a former instance), Landlord lawfully may, immediately or at any time
thereafter, terminate this Lease by notice to Tenant or, and without demand or
notice, enter into and upon the demised premises or any part thereof in the name
of the whole and repossess the same as of his former estate, and expel the
Tenant and those claiming through or under it and remove its or their effects
without being deemed guilty of any manner of trespass, and without prejudice to
any remedies which might otherwise be used for arrears of rent or preceding
breach of covenant, and upon entry as aforesaid, this Lease shall terminate; and
Tenant covenants and agrees, notwithstanding any entry or reentry by Landlord,
whether by summary proceedings, termination, or otherwise, to pay and be liable
for on the days originally fixed herein for the payment thereof, amounts equal
to the several installments of rent and other charges reserved as they would,
under the terms of this Lease, become due if this Lease had not been terminated
or if the Landlord had not entered or re-entered, as aforesaid, and whether the
demised premises be relet or remain vacant, in whole or in part, or for a period
less than the remainder of the term, and for the whole thereof, but in the event
the demised premises be relet by Landlord, Tenant shall be entitled to a credit
in the net amount of rent received by Landlord in reletting, after deduction of
all expenses incurred in
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reletting the demised premises (including, without limitation, remodelling
costs, brokerage and legal fees, and the like), and in collecting the rent in
connection therewith. As an alternative, at the election of Landlord, Tenant
will, upon such termination, pay to Landlord, as damages, such a sum as at the
time of such termination represents the amount of excess, if any, of the then
value of the total rent and other benefits which would have accrued to Landlord
under this Lease for the remainder of the lease term if the lease terms had been
fully complied with by Tenant over and above the then cash rental value (in
advance) of the premises for the balance of the term.
If this Lease shall be guaranteed on behalf of the Tenant, all of the
foregoing provisions with respect to the Tenant, etc. shall be deemed to read:
"the Tenant or the guarantor hereof".
Section 17.2. The Landlord shall in no event be in default in the
performance of any of his obligations hereunder unless and until the Landlord
shall have failed to perform such obligations within thirty (30) days or such
additional time as is reasonably required to correct or to commence and
diligently pursue connection of any such default after notice by Tenant to
Landlord properly specifying wherein the Landlord has failed to perform any such
obligation.
Further, if the holder of a mortgage which includes the demised premises,
notifies the Tenant that such holder has taken over the Landlord's rights under
this Lease, Tenant shall not assert any prior rights or any monetary claim
against such mortgagee but shall look solely to the Landlord for satisfaction of
such claim.
ARTICLE XVIII
Miscellaneous Provisions
Section 18.1. Waiver
(a) Failure on the part of the Landlord to complain of any action or
non-action on the part of the Tenant, no matter how long the same may continue,
shall never be deemed to be a waiver by the Landlord of any of his rights
hereunder. Further, it is covenanted and agreed that no waiver at any time of
any of the provisions hereof by Landlord shall be construed as a waiver at any
subsequent time of the same provisions. The consent or approval of Landlord to
or of any action by the Tenant requiring Landlord's consent or approval shall
not be deemed to waive or render unnecessary Landlord's consent or approval to
or of any subsequent similar act by Tenant.
(b) No payment by Tenant, or acceptance by Landlord, of a lesser amount
than shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account. The acceptance by
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Landlord of a check for a lesser amount with an endorsement or statement
thereon, or upon any letter accompanying such check, that such lesser amount is
payment in full, shall be given no effect, and Landlord may accept such check
without prejudice to any other rights or remedies which Landlord may have
against Tenant.
Section 18.2. Covenant of Quiet Enjoyment, Etc.
Tenant, subject to the terms and provisions of this Lease on payment of
the rent and observing, keeping and performing all of the terms and provisions
of this Lease on its part to be observed, kept and performed, and subject to
encumbrances of record shall lawfully, peaceably and quietly have, hold, occupy
and enjoy the demised premises during the term hereof without hindrance or
ejection by any persons lawfully claiming under Landlord; but it is understood
and agreed that this covenant and all other covenants of Landlord contained in
this Lease shall be binding upon Landlord and Landlord's successors only with
respect to breaches occurring during Landlord's and Landlord's successors'
respective ownership of the Landlord's interest hereunder. In addition, Tenant
specifically agrees to look solely to Landlord's interest in the Building for
recovery of any judgment from 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 provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that the
Tenant might otherwise have to obtain injunctive relief against the Landlord or
Landlord's successors in interest, or any other action not involving the
personal liability of the Landlord or anyone claiming under Landlord, to respond
in monetary damages from their assets other than their interest in this shopping
center. 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 so doing by strike, lockout,
breakdown, accident, order or regulation of or by any governmental authority, of
failure to supply, or inability by the exercise of reasonable diligence to
obtain supplies, parts, or employees necessary to furnish such services, or
unavailability of fuel or because of war or other emergency, or for any cause
beyond the Landlord's reasonable control, or for any cause due to any act or
neglect of the Tenant or its servants, agents, employees, invitees, licensees,
or any person claiming by, through or under the Tenant, or any termination for
any reason of Landlord's occupancy of the premises from which the service is
being supplied by Landlord, and in no event shall the Landlord ever be liable to
Tenant for any indirect or consequential damages.
Section 18.3. Status Report.
Recognizing that both parties may find it necessary to establish to third
parties, such as accountants, banks, mortgagees, ground lessors, or the like,
the then current status
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of performance hereunder, either party, on the request of the other made from
time to time, will promptly furnish to Landlord, or the holder of any mortgage
or ground lease encumbering the demised premises or the Building, or to Tenant,
as the case may be, a statement on the status of any matter pertaining to this
Lease, without limitation, acknowledgments that (or the extent to which) each
party is in compliance with its obligations under the terms of this Lease.
Section 18.4. Notice to Mortgagee.
After receiving written notice from any person, firm, or other entity,
that it holds a mortgage (which term shall include a deed of trust) which
includes as part of the mortgaged premises the demised premises, Tenant shall,
so long as such mortgage is outstanding, be required to give to such holder the
same notice as is required to be given to Landlord under the terms of this
Lease, but such notice may be given by Tenant to Landlord and such holder
concurrently. It is further agreed that such holder shall have the same
opportunity to cure any default, and the same time within which to effect such
curing, as is available to Landlord; and if necessary to cure such a default,
such holder shall have access to the demised premises.
Section 18.5. Assignment of Rents.
With reference to any assignment by Landlord of Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of the first mortgage or deed of trust on
the demised premises, Tenant agrees:
(a) that the execution thereof by Landlord, and the acceptance thereof by
such holder, shall never be deemed an assumption by such holder of any of the
obligations of the Landlord hereunder, unless such holder shall, by written
notice sent to Tenant specifically otherwise elect; and
(b) that, except as aforesaid, such holder shall be treated as having
assumed Landlord's obligations hereunder only upon foreclosure of such holder's
mortgage or deed of trust and the taking of possession of the demised premises
by such holder.
Section 18.6. Mechanic's Liens.
Tenant agrees immediately to discharge (either by payment or by filing of
the necessary bond, or otherwise) any mechanic's, materialmen's, or other lien
against the demised premises and/or Landlord's interest therein, which liens may
arise out of any payment due for, or purported to be due for, any labor,
services, materials, supplies, or equipment alleged to have been furnished to or
for the Tenant in, upon or about the demised premises.
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Section 18.7. No Brokerage.
Tenant warrants and represents that it has dealt with no broker in
connection with the consummation of this Lease other than Richard P. Quincy; and
in the event of any brokerage claims against Landlord predicated upon prior
dealings with the Tenant named herein, Tenant agrees to defend the same and
indemnify the Landlord against any such claim other than by said Richard P.
Quincy.
Section 18.8. Invalidity of Particular Provisions.
If any term or provision of this Lease, or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such term or provision to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
Section 18.9. Provisions Binding, Etc.
Except as herein otherwise expressly provided, the terms hereof shall be
binding upon and shall inure to the benefit of the successors and assigns,
respectively, of the Landlord and the Tenant. Each term and each provision of
this Lease to be performed by Tenant shall be construed to be both a covenant
and a condition. The reference contained to successors and assigns of Tenant is
not intended to qualify, negate or diminish the prohibition against assignment
by Tenant under the provisions of ARTICLE IX hereof.
Section 18.10. Governing Law.
This Lease shall be governed exclusively by the provisions hereof and by
the laws of the Commonwealth of Massachusetts, as the same may from time to time
exist.
Section 18.11. Recording.
Tenant agrees not to record the within Lease, but each party hereto
agrees, on request of the other, to execute a Notice of Lease in recordable form
and complying with applicable Massachusetts laws, and reasonably satisfactory to
Landlord's attorney. In no event shall such document set forth the rental or
other charges payable by Tenant under this Lease, and any such document shall
expressly state that it is executed pursuant to the provisions contained in this
Lease, and is not intended to vary the terms and conditions of this Lease.
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Section 18.12. Notices.
Whenever by the terms of this Lease notice, demand, or other communication
shall or may be given either to Landlord or to Tenant, the same shall be in
writing and shall be sent by registered or certified mail, postage prepaid to
the addresses shown in Article I - Basic Lease Provisions, or to such other
address or addresses as may from time to time hereafter be designated by
Landlord or Tenant.
Section 18.13. When Lease Becomes Binding.
Employees or agents of Landlord have no authority to make or agree to make
a lease or any other agreement or undertaking in Connection herewith. The
submission of this document for examination and negotiation does not constitute
an offer to lease, or a reservation of, or option for, the demised premises, and
this document shall become effective and binding only upon the execution and
delivery hereof by both Landlord and Tenant. All negotiations, considerations,
representations, and understandings between Landlord and Tenant are incorporated
herein and may be modified or altered only by agreement in writing between
Landlord and Tenant, and no act or omission of any employee or agent of Landlord
shall alter, change, or modify any of the provisions hereof,
Section 18.14. Paragraph Headings.
The paragraph headings throughout this instrument are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify, or aid in the interpretation, construction, or meaning
of the provisions of this Lease.
Section 18.15. Lease Superior or Subordinate to Mortgage.
It is agreed that the rights and interest of Tenant under this Lease shall
be subject and subordinate to any mortgages or deeds of trust that may hereafter
be placed upon the development, and to any and all advances to be made
thereunder, and to the interest thereon, and all renewals, modifications,
replacements and extensions thereof, if the mortgagee or trustee named in said
mortgages or deeds of trust shall elect by written notice delivered to Tenant to
subject and subordinate the rights and interest of the Tenant under this Lease
to the lien of its mortgage or deed of trust and shall agree to recognize this
Lease of Tenant in the event of foreclosure if Tenant is not in default, that
any mortgagee or trustee may elect to give the rights and interest of the Tenant
under this Lease priority over the lien of its mortgage or deed of trust. In the
event of either such election, and upon notification by such mortgagee or
trustee to Tenant to that effect, the rights and interest of the Tenant under
this lease shall be deemed to be subordinate to, or to have priority over, as
the case may be, the lien of said mortgage or
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deed of trust, whether this Lease is dated prior to or subsequent to the date of
said mortgage or deed of trust. Tenant shall execute and deliver whatever
instruments may be required for such purposes, and in the event Tenant fails so
to do within ten (10) days after demand in writing, Tenant does hereby make,
constitute and irrevocably appoint Landlord as its attorney in fact and in its
name, place and stead so to do.
WITNESS the execution hereof under seal in any number of counterpart
copies, each of which counterpart copies shall be deemed an original for all
purposes as of the day and year first above written.
(LANDLORD)
/s/ Ethel V. Slawsby
------------------------------
Ethel V. Slawsby
Date Signed: 1/9/87
-----------------
(TENANT)
THE HIBERNIA SAVINGS BANK
BY: Mark A. Osborne President
--------------------------
(Name) (Title)
Hereunto Duly Authorized
Date Signed: 12/27/86
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EXHIBIT "A"
Lease Plan
[MAP]
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A. Fair Market Rental Value
A. "Fair Market Rental Value" shall be computed as of the date in question
at the then current annual rental charge (i.e., the sum of Yearly Rent plus
escalation and other charges), including provisions for subsequent increases and
other adjustments for new leases then currently being negotiated or executed in
comparable space located in the Building is a part or if no new leases are then
currently being negotiated or executed in such Building, the Fair Market Rental
Value shall be determined by reference to new leases then currently being
negotiated or executed for comparable space located elsewhere in similar retail
street-level store-front properties in the general trading area of the demised
premises. In determining Fair Market Rental Value, the following factors, among
others, shall be taken into account and given effect: size, location of
premises, lease term, condition of Building, and services provided by the
Landlord.
B. Dispute as to Fair Market Rental Value
Landlord shall initially designate Fair Market Rental Value and Landlord
shall furnish data in support of such designation. If Tenant disagrees with
Landlord's designation of a Fair Market Rental Value, Tenant shall have the
right, by written notice given within thirty (30) days after Tenant has been
notified of Landlord's designation, to submit such Fair Market Rental Value to
arbitration. Fair Market Rental Value shall be submitted to arbitration as
follows: Fair Market Rental Value shall be determined by impartial arbitrators,
one to be chosen by the Landlord, one to be chosen by Tenant, and a third to be
selected, if necessary, as below provided. The unanimous written decision of the
two first chosen, without selection and participation of a third arbitrator, or
otherwise, the written decision of a majority of three arbitrators chosen and
selected as aforesaid, shall be conclusive and binding upon Landlord and Tenant.
Landlord and Tenant shall each notify the other of its chosen arbitrator within
ten (10) days following the call for arbitration and, unless such two
arbitrators shall have reached a unanimous decision within thirty (30)days after
their designation, they shall so notify the President of the Boston Bar
Association (or such organization as may succeed to said Boston Bar Association)
and request him to select an impartial third arbitrator, who shall be an office
building owner, a real estate counsellor or a broker dealing with like types of
properties, to determine Fair Market Rental Value as herein defined. Such third
arbitrator and the first two chosen shall, subject to commercial real estate
arbitration rules of the American Arbitration Association, hear the parties and
their evidence and render their decision within thirty (30) days following the
conclusion of such hearing and notify Landlord and Tenant thereof. Landlord and
Tenant shall bear the expense of the third arbitrator (if any) equally. The
costs and expenses of such arbitration hereunder and
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its apportionment between the parties shall be determined by the arbitrator in
his award or decision. If the dispute between the parties as to a Fair Market
Rental Value has not been resolved before the commencement of Tenant's
obligation to pay rent based upon such Fair Market Rental Value, then Tenant
shall pay Yearly Rent and other charges under the Lease in respect of the
premises in question based upon the Fair Market Rental Value designated by
Landlord until either the agreement of the parties as to the Fair Market Rental
Value, or the decision of the arbitrators, as the case may be, at which time
Tenant shall pay any underpayment of rent and other charges to Landlord, or
Landlord shall refund any overpayment of rent and other charges to Tenant.
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EXHIBIT "C"
Premises Clean-up Details
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The Landlord covenants and agrees that, throughout the term of this Lease
and any renewal thereof, it will not lease any space in the Building or in the
shopping center, as now constructed or as enlarged or altered at any time in the
future, or permit the use or occupancy of any such space, for a health and
beauty aid store, a drug store, and/or a pharmacy prescription department,
except the premises hereby demised.
It is understood and agreed that the provisions of this Exhibit D shall
not affect any other tenants in the Building or in the shopping center who may
sell health and beauty aids as an incidental part of their business, provided,
however in no event shall any other tenant in the Building or in the shopping
center be permitted to operate a health and beauty aids store (being defined as
a store which devotes a third or more of its retail selling space to the display
and sale of health and beauty aids, cosmetics, vitamins and over-the-counter
pharmaceuticals) or to operate a drug store and/or a pharmacy prescription
department.
Landlord further warrants and agrees that in no event shall it lease or
permit the use or occupancy of any space in the Building or in the shopping
center for the primary purpose of (i) a greeting card store, or (ii) a candy
store, however, nothing in this paragraph shall be deemed to affect other
tenants in the Building or in the shopping center who may sell candy or greeting
cards as an incidental part of their business.
Should the Landlord or any of its officers, directors/trustees, individual
members or partners, as the case may be, acquire any interest in any land
immediately adjacent to the shopping center, during the term of this Lease and
any renewals thereof, the Landlord warrants and agrees that it shall not allow
any of the premises on such land to be leased or to be used for the purpose of a
health and beauty aids store, a drug store, and/or a pharmacy prescription
department.
USE RESTRICTIONS -
Landlord warrants that throughout the term of this Lease and any renewals
thereof, it will not lease any space in the Building or in the shopping center
or allow any such space to be used for the purpose of (i) a pinball, video game
or any form of entertainment arcade (ii) a gambling or betting office (iii) a
massage parlor (iv) a cinema or bookstore selling or exhibiting material of a
pornographic or adult nature. Tenant warrants and agrees that in no event and
notwithstanding anything in this Lease to the contrary, shall its premises be
used for the purposes enumerated above.
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