LEASE
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THIS INDENTURE made as of the 27th day of February, 1998, by and between Andrew
B. Rose, Trustee of 89 Pleasant Street Realty Trust, u/d/t dated August 9, 1983
recorded with the Essex South District Registry of Deeds in Book 7347, Page 428,
and Ipswich Savings Bank.
W I T N E S S E T H:
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1. Definitions. As used herein, the following terms shall have the
meanings set' forth below unless the context otherwise requires:
(a) Lessor: Said Andrew B. Rose, Trustee of 89 Pleasant Street Realty
Trust.
(b) Lessee: Said Ipswich Savings Bank.
(c) Premises: The approximately 2,112 square foot premises cross-hatched
on Exhibit A-l, in the Shopping Center shown on Exhibit A.
(d) Shopping Center: The Shopping Center at 89 Pleasant Street in
Marblehead, Massachusetts, shown on Exhibit A and outlined in bold
lines thereon, and described by metes and bounds in Exhibit B.
(e) Original Term: The period commencing on the Commencement Date (as
hereinafter defined) and ending at 12:01 a.m. on fifth (5th)
anniversary of the Commencement Date.
(f) Term: Prior to the exercise by the Lessee of the Options to Extend, if
any, as provided in Section 3.1 hereof, the Original Term; after the
exercise by Lessee of any such Option to Extend, the Original Term as
it may have been then extended.
(g) Commencement Date: The earlier of (i) sixty (60) days after the Lessee
has obtained all regulatory and other governmental Approvals (as
defined in and more particularly set forth in Section 2 hereof)
necessary to locate, construct and operate a branch banking facility
at the Premises; or (ii) the date Lessee opens for business at the
Premises.
(h) Net Minimum Rental: Twenty One Thousand Seven Hundred fifty-three and
60/100 ($21,753.60) Dollars per year during each of the first three
(3) Lease Years of the Original Term hereof, and thereafter Net
Minimum Rental shall be adjusted as provided in Section 4 hereof.
(i) Lease Interest Rate: The lesser of (i) eighteen (18) percent per
annum; or (ii) the maximum rate permissible under applicable law. (i)
(j) Lease Year: The period beginning on each anniversary of the
Commencement Date during the Term.
(k) Permitted Use: Branch banking facility and all uses necessary or
incidental thereto, including, without limitation, drive-in banking
services, maintenance of ATM's and safe deposit facilities and office
and office related uses.
(l) Overage Rent: As defined in Section 4.1.
(m) Common Areas: The parking and common area or areas located adjacent to
the Premises and utilized as a part of the Shopping Center and all
other common areas and facilities in the Shopping Center, all to the
extent that the same may from time to time be provided by the Lessor
for the convenience of all lessees occupying other portions of the
Shopping Center, their customers and invitees, and such other persons
as shall be permitted by the Lessor from time to time to use the same,
subject to all of the express terms and provisions of Section 7.
(n) Lessee's Trade Name: Ipswich Savings Bank or Ipswich Bank.
(o) Lessor's Address: 600 Loring Avenue, Salem, MA 01970-2212;
(p) Lessor's Counsel: Goldstein & Manello, P.C., 265 Franklin Street,
Boston, MA 02110; Attn: Jeffrey L. Musman, Esquire.
(q) Lessee's Address: 23 Market Street, Ipswich, MA 01938-2212; Attn:
President or Chief Executive Officer
(r) Lessee's Counsel: William Tinti, Esq., Tinti, Quinn & Merty, P.C., 222
Essex Street, Salem, MA 09170.
(s) Notice: Shall mean notice as provided in Section 36 hereof.
2. The Shopping Center and the Premises. The Lessor does hereby let to
the Lessee and the Lessee does hereby hire-from the Lessor the Premises
described in Section 1 in the Shopping Center described in Section 1, excepting
and reserving to the Lessor, however, (a) the right to place in, over, upon or
under the Premises (in such manner as to not substantially interfere with the
Lessee's use of the Premises), utility lines, pipes and the like, to serve other
premises in the Shopping Center, and to replace, maintain and repair such
utility lines, pipes and the like, in, over, upon and under the Premises as may
have been installed therein; (b) all other necessary or customary easements,
appurtenances and rights of access to and egress from such other premises; and
(c) all other tights reserved by the Lessor in this lease or otherwise,
including, without limitation, the rights set forth in the third paragraph of
Section 7. In the event of any conflict between the terms and provisions of this
lease and the terms and provisions of Exhibits A or A-l, or both, the terms and
provisions of this lease shall govern. Notwithstanding anything in this lease to
the
contrary, the Lessor reserves the right at any time or from time to time to
change the name of the Shopping Center described in Section l(d).
As soon as reasonably practicable after the execution hereof Lessee shall
make application to (i) the Commissioner of Banks of the Commonwealth of
Massachusetts and any other governmental authority as shall be necessary to
locate and operate a branch banking facility of the Lessee at the Premises, and
(ii) for all other permits and approvals, from all governmental authorities
having jurisdiction necessary to complete construction of the Premises and, to
install Lessee's signage as provided in Section 13 and to operate Lessee's
business at the Premises (collectively, the "Approvals"). Lessee agrees to use
its best efforts to diligently prosecute such applications, including, without
limitation, paying all fees necessary to obtain such Approvals, and providing
such documentation and information as shall be requited by such governmental
authorities in furtherance of such applications. If despite such efforts Lessee
has been unable to obtain such Approvals on or before July 1, 1998, Lessee shall
have the right to terminate this Lease by delivering Notice to the Lessor on or
before such date. Lessor agrees to cooperate with Lessee in Lessee's attempt to
obtain such Approvals and, where required by such governmental authorities,
agrees to permit the use of Lessor's name in connection therewith as owner of
the Shopping Center. Lessor agrees that it will execute such instruments as
shall be reasonably required by such governmental authority of the owner of the
Shopping Center with reference to any application by Lessee therefor, but all
services performed in connection therewith and all costs incurred and the
exercise of rights pursuant to this Paragraph shall be at Lessee's sole expense
and risk.
3. Term. TO HAVE AND TO HOLD the Premises unto the Lessee during the Term
set forth in Section 1.
In the event that Lessee should hold over after the expiration or sooner
termination of the Term, the Term shall continue thereafter until terminated by
either party by not less than thirty (30) days' prior written notice to the
other, which notice may, however, be given prior to the commencement of such
holdover. All of the terms and provisions of this lease u1 effect immediately
prior to such holdover shall be applicable during such holdover and for any
further time following the end of the Term during which the Lessee may continue
to use or occupy the Premises, except that the Lessee shall pay on account of
the Net Minimum Rental an amount equal to one and one-half (1.5) times the Net
Minimum Rental provided in Section 1(b).
3.1 Options-to-Extend. Lessee shall have (3) options to extend the Term
of this Lease for additional periods of five (5) years each, commencing on the
expiration of the Original Term, as it may have been extended, provided that
Lessee shall give Lessor Notice of the exercise of its election not later than
six (6) months prior to the expiration of the then Term; and provided further
that Lessee shall not be--in:default at the time of giving of such Notice in the
performance and observance of any of the terms and agreements in this Lease
.contained on the part of the Lessee. to (b) performed and observed. (The option
rights herein granted to Lessee shall be referred to as the "First Option to
Extend," the "Second Option to Extend", and the "Third Option to Extend", as the
case may be, and, collectively, the "Options to Extend"; and the period by which
the Term may be extended applicable to such Option to Extend shall be referred
to as the "First Option
Period" the "Second Option Period", and the "Third Option Period", as the case
may be and, collectively, the "Option Periods".)
4. Rental. YIELDING AND PAYING therefor the Net Minimum Rental set forth
in Section 1, payable in advance on the first day of each month during the Term
in equal monthly installments. A proportionate part of the Net Minimum Rental
shall be paid for any period of the commencement of the Term which shall be less
than a full month. During each of the first three (3) Lease Years of the
Original Term hereof, the Net Minimum Rental shall be Twenty One Thousand Seven
Hundred fifty-three and 60/100 ($21,753.60) Dollars. Thereafter for the
remaining two (2) years of the Original Term hereof, the Net Minimum Rental will
be Thirty Six Thousand Seven Hundred Forty-Eight Thousand and 80/100
($36,748.80) Dollars. In the event the Lessee exercises the First Option to
Extend, the Net Minimum Rental for each Lease Year of the First Option Period
shall be Forty Thousand Four Hundred Twenty Three and 68/100 ($40,423.68)
Dollars. In the event the Lessee exercises the Second Option to Extend, the Net
Minimum Rental for each Lease Year of the Second Option Period shall be Forty
Four Thousand Four Hundred Sixty Six and 05/100 ($44,466.05) Dollars. In the
event the Lessee exercises the Third Option to Extend, the Net Minimum Rental
for each Lease Year of the Third Option Period shall be Forty Eight Thousand
Nine Hundred Twelve and 65/100 ($48,912.65) Dollars. The Lessee shall pay the
Net Minimum Rental due for the first month of the Term on or before the
Commencement Date.
The Lessee also agrees to pay, as additional rental, when due or
payable, and except as otherwise expressly provided herein, all other
obligations and liabilities which the Lessee assumes and agrees to pay by
express assumption or agreement elsewhere in this lease, together with every
fine, penalty, interest and cost which may be added thereto or become due or be
imposed by operation of law for the non-payment or late payment thereof, and, in
the event of any failure on the part of the Lessee so to pay or discharge any of
the same, the Lessor shall have all rights and remedies as in the case of
non-payment of the Net Minimum Rental. The Lessee also agrees to pay to the
Lessor, on demand, as additional rental, interest at the Lease Interest Rate on
all overdue installments of the Net Minimum Rental and additional rental from
the respective due dates thereof until payment thereof in full. In the event
that the aggregate of all payments (whether denominated as Net Minimum Rental,
additional rental or otherwise) received by or paid to discharge an obligation
of the Lessee as 8 result of any assignment, subletting or permission to use or
occupy the Premises described in Section 11(e), whether or not the Lessor shall
have consented thereto (it being agreed by the Lessee that nothing herein
contained shall in any way affect the covenant herein elsewhere contained
prohibiting an assignment hereof or underletting to or use, occupation or
improvement by, others of the Premises or any part thereof without the Lessor's
prior written consent), shall exceed the aggregate of the Net Minimum Rental,
additional rental and other payments herein payable by or on behalf of the
Lessee, then, and in such event, the Lessee agrees to forthwith pay, as
additional rental, the full amount of any such excess. The Net Minimum Rental
and all items of additional rental shall be paid to the Lessor at the Lessor's
address set forth in Section l(o), except that the Lessor may by written notice
to the Lessee designate another address for purposes of this sentence.
In addition to all of the rights and remedies of the Lessor set forth in
this lease, if the Lessee shall fail to pay any item of rental due hereunder
(whether denominated as Net
Minimum Rental, additional rental or otherwise) within ten (10) days after the
same shall have become due and payable, then and in such event the Lessee shall
also pay to the Lessor a late payment service charge (in order to partially
defray the Lessor's administrative and other overhead expenses) equal to the
greater of Fifty 00/100 ($50.00) Dollars or one-half of one (1/2%) percent of
such unpaid sum per day for each day or part thereof after the due date thereof
during which such payment shall not have been received by the Lessor, but in no
event in excess of any maximum interest rate (if such sum shall be denominated
as interest by any court of competent jurisdiction) permissible under applicable
law, it being understood that nothing herein shall be deemed to extend the due
date for payment of any sums required to be paid by the Lessee hereunder or to
relieve the Lessee of its obligation to pay such sums at any time or times
required by this lease.
4.1 Overage Rent.
In addition to the Net Minimum Rental hereabove reserved, the Lessee
covenants and agrees with the Lessor hat commencing on the first (1st) day of
the month following the "Overage Date" (as hereinafter defined) and on the first
day of each succeeding month during the balance of the first three (3) Lease
Years of the Term, the Lessee will pay to the Lessor an additional rental
(sometimes hereinafter called "Overage Rent') as hereinafter provided.
On or before the fifteenth (15th) day after the close of each and every
calendar quarter (such last day of the quarter shall herein be referred to as
"Quarterly Reporting Date") during the term, the Lessee shall render a true and
correct statement signed by the Chief Financial Officer of Lessee certifying the
total level of "Deposits at the Premises". The last day of the first quarter in
which the level of Deposits at the Premises shall equal or exceed $20 million
shall be deemed to be the Overage Date. If the Overage Date is determined at a
time after the first installments of Overage Rent is payable to Lessor, such
installments shall be paid to Lessor with the installment of Overage Rent next
due after the Overage Date is determined. Overage Rent shall thereafter be due
for each month on. during the first three (3) Lease Years of the Original Term
as follows:
(i) For each month during the calendar quarter immediately following the
Overage Date, the Lessee will pay to the Lessor an additional rental
of One Thousand Two Hundred Forty-Nine and 60/100 ($1,249.60) Dollars
per month;
(ii) For each month during any calendar quarter following a quarter in
which the level of Deposits at the Premises as of the Quarterly
Reporting Date shall equal or exceed $20 million, the Lessee will pay
to the Lessor an additional rental of One Thousand Two Hundred
Forty-Nine and 60/100 ($1,249.60) Dollars per month;
(iii)For each month during any calendar quarter following a quarter in
which the level of Deposits at the Premises as of the Quarterly
Reporting Date shall equal or exceed $19 million but be less than $20
million, the Lessee will pay to the Lessor an additional rental of
Eight Hundred Thirty-Three and 97/100 Dollars ($833.07) per month.
(iv) For each month during any calendar quarter following a quarter in
which the level of Deposits at the Premises as of the Quarterly
Reporting Date shall equal or exceed $18 miLlion but be less than $19
million, the Lessee will pay to the Lessor an additional rental of
Four Hundred Sixteen and 53/100 ($416.53) Dollars per month.
(v) For each month during any calendar quarter following a calendar
quarter in which the level of Deposits at the Premises is less than
$18 million, no Overage Rent will be required.
For purposes hereof Deposits at the Premises shall mean all deposits of
money whether on demand, for a specified term, or otherwise at the Premises as
certified by the Lessee to the Commissioner of Banks, the FDIC, Lessee's
stockholders, Lessee's Board of Directors, or as determined by Lessee's
independent accountants.
5. Net Lease: Non-terminability.
(a) This lease is a net lease and the Net Minimum Rental, additional
rental and all other sums payable hereunder to or on behalf of
the Lessor shall be paid without notice or demand, and without
setoff, counterclaim, defense, abatement, suspension, deferment,
reduction or deduction, except as expressly provided herein.
(b) This lease shall not terminate, nor shall the Lessee have any
right to terminate this lease, nor shall the obligations and
liabilities of the Lessee set forth herein be otherwise affected,
except as expressly provided herein.
(c) The Lessee waives all rights (i) to any abatement, suspension,
deferment, reduction or deduction of or from the Net Minimum
Rental or the additional rental or (ii) to quit, terminate or
surrender this lease or the Premises of any part thereof, except
as expressly provided herein.
(d) It is the intention of the parties hereto that the obligations of
the Lessee hereunder shall be separate and independent covenants
and agreements, that the Net Minimum Rental, the additional
rental and all other sums payable by the Lessee to or on behalf
of the Lessor shall continue to be payable in all events and that
the obligations of the Lessee hereunder shall continue
unaffected, unless the requirement to pay or perform the same
shall have been terminated pursuant to an express provision of
this lease.
(e) The Lessee agrees that it will remain obligated under this lease
in accordance with all of its terms and provisions, and that it
will not take any action to terminate, rescind or avoid this
lease or any portion thereof except as otherwise provided herein,
notwithstanding (i) the bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding-up
or other proceeding affecting the
Lessor or any assignee of the Lessor in any such proceeding; and
(ii) any action with respect to this lease which may be taken by
any trustee or receiver of the Lessor or of any assignee of the
Lessor in any such proceeding or by any court in any such
proceeding.
6. Use of the Premises. The Premises may be used for the Permitted Use
described in Section 1 and for no other purpose whatsoever, without the express
written approval of the Lessor.
7. The Parking and Common Areas. The Lessee, its customers and invitees
shall have the right, during the Term, to use the Common Areas in common
with all other lessees occupying other portions of the Shopping Center, their
customers and invitees, and such other persons as shall be permitted by the
Lessor from time to time to use the Common Areas, subject, however, to such
reasonable rules and regulations as may now be in force or as the Lessor may
establish at any time or from time to time, which rules and regulations shall
nonetheless encompass the provisions of Section 7.1 hereof, including, without
limitation, the designation of the size and location of employee parking areas
even if the same are not located within the Shopping Center. The Lessor shall
have the right to have towed any vehicles which are parked in the Common Areas
by the Lessee's employees in violation of the Lessor's rules and regulations
regarding employee parking from rime to time in effect. The Lessee covenants and
agrees, however, that it will not permit its employees or concerns making
deliveries to or pickups from the Premises to use any portion of the Common
Areas (except as otherwise provided herein) other than such portions or portions
reasonably situated as the Lessor shall from time to time set apart for such
purpose and designate in writing, and that, to the extent there shall be any
sidewalks immediately adjacent to the Premises, it will maintain such sidewalks
in a neat and orderly condition, swept and free from ice and snow. The Lessor
expressly reserves the right to enforce parking charges (by operation of meters
or otherwise), and to temporarily close all, or any portion, of the Common Areas
for the purpose of making repairs or changes thereto, in order to discourage
non customer parking, or otherwise. Notwithstanding the foregoing, Lessor agrees
that it shall not install parking meters in the Shopping Center unless required
by governmental authorities.
Notwithstanding the foregoing, Lessee shall have the right, in order to
maintain proper security for the operation of its business to have pickups or
deliveries made from or to the Premises by Brinks or other similar carriers of
cash, securities, instruments, records or other materials commonly transported
by such carriers and to permit the use of such portions of the Common Areas
adjacent to the Premises as shall be reasonably required for such purposes,
provided, however, that any such use by Lessee of the Common Areas shall be
accomplished, so far as reasonably practicable, in a manner which reduces to a
minimum interference with the use of the Common Areas for the purposes for which
they were intended or the conduct of business of other tenants of the Shopping
Center.
The Lessor may at any time or from time to time construct additional
improvements in all or any part of the Shopping Center, or change the location
or arrangement of any improvement in the Shopping Center or all or any part of
the Common Areas, or add or deduct any land to or from the Shopping Center, or
enlarge, reduce, change, enclose or increase the height of, the Shopping Center,
or any building or other improvement therein, provided, however, no such
construction, addition or change shall materially
reduce the number of parking spaces available to Lessee at the Commencement
Date, access to the Premises or the visibility of the Premises from Pleasant
Street.
Subject to the exclusions hereinafter set forth, the Lessee covenants and
agrees to pay unto the Lessor, as additional rental, the Lessee's Fraction (as
hereinafter defined) of the annual cost of (a) operating, managing, altering,
improving, repairing, restoring, replacing, renovating, cleaning and maintaining
the Common Areas, including, without limitation. the lighting thereof, the
policing thereof, all plate glass therein, the heating ventilating and
air-conditioning thereof, the plumbing, sanitary sewage and electric systems
therein and the sprinkler and other fire protection or other alarm systems
therein, if any (including any main trunk line of any such systems, but
excluding any branch runs and leads); (b) all real estate taxes, personal
property taxes, business and occupation taxes, occupational license taxes, water
charges, sewer charges, assessments, including, without limitation, betterment
assessments or taxes in the nature thereof, and all other similar governmental
taxes, impositions and charges which shall be levied, assessed, or imposed (but
excluding any taxes for which Lessee shall be responsible for the payment of
Lessee's Fraction under Section 8 hereof (i) upon or with respect to the Common
Areas, including, without limitation the land on which the foregoing are
constructed; or (ii) upon or with respect to the operation, maintenance,
alteration, repair, rebuilding, use, occupancy or enjoyment of the Common Areas;
under or by ovirtue of any present or future law, statute, charter, ordinance,
regulation or other requirement of any governmental authority, whether federal,
state, county, city, municipal or otherwise, all whether general, special,
ordinary, extraordinary, foreseen or unforeseen; it being agreed that such
taxes, charges, assessments and impositions Shall include the costs and expenses
incurred, in accordance with the penultimate paragraph of Section 8, in
contesting the amount or validity of any thereof; (c) the premiums on the
liability insurance policies insuring the Lessor against damage to property or
injuries or death to person or persons, in, on or about the Common Areas,
including, without limitation, the roadways leading from and to the Common
Areas, in amounts as shall be determined by the Lessor, and the premiums on the
fire and casualty insurance policies insuring the Lessor including, without
limitation, all insurance described in Section 16, in such amounts as shall be
determined by the Lessor, (d) all administrative costs equal to fifteen (15%)
percent of all additional rental payable to the Lessee pursuant to this Section
7 to help defray the Lessor's indirect cost of so providing, maintaining and
insuring. Notwithstanding anything set forth in this lease to the contrary, the
Lessee will pay to the Lessor monthly, together with the Net Minimum Rental,
one-twelfth (1/12) of the amount estimated by the Lessor from time to time to
reflect the Lessee's Fraction of such annual cost. Promptly after such cost is
determined for each year, the Lessor will advise the Lessee in writing of the
amount of the Lessee's Fraction thereof for such year, and the Lessor and Lessee
will account to each other so that the Lessee shall have paid to the Lessor for
each such year the full amount of the Lessee's Fraction of such cost; any excess
paid by the Lessee shall be credited against future payments required by this
Section 7 next due, except that upon expiration of the Term any such excess
shall be promptly refunded by the Lessor to the Lessee, and, in any event, any
deficiency shall be promptly paid by the Lessee to the Lessor. For purposes of
this Section, Lessee shall have the right to review at reasonable times and upon
reasonable notice any of Lessor's books and records relating to any such cost,
for which Lessor is seeking reimbursement from Lessee. As used in this Section 7
and in Section 8, Lessee's Fraction shall be a fraction in which the numerator
is the number of square feet of floor space in the Premises and the denominator
is the number of square feet of floor space in all premises
located in the Shopping Center, including the Premises then occupied by other
lessees of the Lessor; it being agreed that all floor areas shall be computed
within the exterior surfaces of all walls and any space in non-selling
mezzanines shall not be considered. The cost described in the first sentence of
this paragraph shall be deemed to include, without limitation, all costs and
expenses of every kind and nature paid or incurred by the Lessor (including
reasonable and appropriate reserves) in operating, managing, equipping, policing
(if and to the extent provided by the Lessor), heating, ventilating, air
conditioning, lighting, altering, improving, repairing, restoring, replacing,
renovating, cleaning, maintaining and landscaping all portions of the Common
Areas (including any parking structure subsequently installed in the Shopping
Center), water and sewer or sewage treatment or removal charges, painting and
caulking all exterior surfaces in the Shopping Center, including, without
limitation any canopies in the Shopping Center, maintaining and illuminating any
pylons in the Shopping Center and any signs thereon to be maintained and/or
illuminated by the Lessor, premiums for liability, property damage, casualty,
workmen's compensation, and any other insurance (including all insurance, hazard
and otherwise, carried by the Lessor on any and all buildings and improvementS
in or about the Shopping Center and the Common Areas), the cost of on-site
supervision and personnel, including, without limitation, the property manager,
if any, staff, office rentals, wages, unemployment taxes, social security taxes
and benefits, personal property taxes and assessments, fees for required
licenses and permits, materials, supplies, operation of loudspeakers and any
other equipment supplying music to any Common Areas (if any), or rental charges
for any machinery and equipment, any and all alterations, improvements, repairs,
restoration, replacements and renovation (whether interior, exterior,
structural, non-structural, foreseen or unforeseen), to any portion of the
Shopping Center which the Lessor shall deem necessary or appropriate or which
shall be required of the Lessor by this or any other lease relating to the
Shopping Center or by any law, rule, ordinance, regulation or requirement of any
public authority or the Fire Insurance Rating Association having jurisdiction or
as a result of any fire, casualty, taking by eminent domain or action by any
public or other authority to the extent that the cost thereof shall exceed the
net proceeds, if any, of any insurance or damages paid to the Lessor, including
without limitation, any and all maintenance and repairs by the Lessor to the
structural portions of all buildings and other improvements in the Shopping
Center, the roof, foundations, exterior walls, floors, subfloors, utilities and
other portions of all such buildings and improvements to the extent so required
of the Lessor of this or any other lease or agreement relating to the Shopping
Center, and the costs of furnishing sprinkler protection in the Premises.
Notwithstanding the foregoing, the costs described in this Section shall be
deemed to exclude (a) any costs in altering, improving, repairing, restoring,
replacing, renovating or maintaining leased portions of the Shopping Center; (b)
the original costs of constructing any building, improvement, or the Common
Areas, or additions thereto (c) any costs incurred for the benefit of a
particular Tenant which are to be paid for or by such Tenant as opposed to costs
incurred for the benefit of the Shopping Center and/or a significant number of
tenants thereof; (d) any costs incurred by Lessor in making structural repairs
to any structural portion of the Shopping Center as provided in Section 28
hereof; (e) any costs incurred of a capital nature with respect to the HVAC,
plumbing, electrical and alarm systems; and (f) any costs made necessary by
Lessor's non-compliance with governing codes, by-laws, regulations and
ordinances related to the Shopping Center, but
only if such were in effect are the time of the original construction of such
component of the Shopping Center.
7.1 A. Lessor covenants and agrees that it shall at all times reasonably
repair, maintain and police the Parking Areas and Common Areas of the Shopping
Center, and will Keep the Parking Area well lighted during all normal business
hours of the Shopping Center, all with the intent of maintaining a first class
shopping center.
8. Taxes and Other Charges. The Lessee agrees, except as otherwise
expressly provided herein to the contrary, to pay, as the same become due and
payable, all costs expenses and obligations of every kind and nature for the
operation, maintenance, repair, rebuilding, use, occupancy and enjoyment of the
Premises. The Lessee also agrees, subject as aforesaid, to pay, within fifteen
(15) days after demand, the Lessee's Fraction of all real estate taxes, personal
property taxes, business and occupation taxes, occupational license taxes, water
charges, sewer charges, assessments, including, without limitation, betterment
assessments or taxes in the nature thereof, and all other similar governmental
taxes, impositions and charges which shall be levied, assessed or imposed:
(a) upon or with respect to the land under the buildings comprising the
Shopping Center and such buildings; or
(b) upon or with respect to the operation, maintenance, alteration,
repair, rebuilding, use, occupancy or enjoyment of the buildings
comprising the Shopping Center or any portion thereof.
under or by virtue of any present or future law, statute, charter, ordinance,
regulation or other requirement of any public authority, whether federal, state,
county, city, municipal or otherwise, all whether general, special, ordinary,
extraordinary, foreseen or unforeseen. Such taxes, charges, assessments and
impositions shall include any costs and expenses incurred, in accordance with
the penultimate paragraph of this Section 8, in contesting the amount or
validity of any thereof.
The Lessee agrees, except as aforesaid, to pay as aforesaid all gross receipts,
gross income or similar taxes imposed or levied upon, assessed against or
measured by the Net Minimum Rental, additional rental or any sums payable by the
Lessee to or on behalf of the Lessor hereunder, or any sales or use taxes which
may be levied or assessed against or payable by the Lessor or the Lessee on
account of the acquisition, leasing, use or occupancy of the Premises or any
portion thereof;
Notwithstanding anything contained in this lease to the contrary, the Lessee
will pay to the Lessor monthly, together with the Net Minimum Rental, one
twelfth (1/12) of the amount from time to time estimated by the Lessor to
reflect the Lessee's Fraction of all such taxes, charges, assessments, and
impositions described in this Section 8 which are so levied, assessed or
imposed, or billed to the Lessor by the appropriate public authority or
authorities, if any. Promptly after the exact amount of the Lessee's fraction of
all such taxes, charges, assessments and impositions are determined for each tax
year, the Lessor will advise the Lessee in writing of the amount thereof for
such year and the Lessor and the Lessee will account to each other (as often as
such taxes, charges, assessments or impositions are payable to the proper
authorities) so that the Lessee shall have paid to the
Lessor prior to the expiration of ten (1O) days after the Lessor has so advised
the Lessee of such amount; the full amount of the Lessee's Fraction of all such
taxes, charges, assessments and impositions for such tax year or portion
thereof, any excess paid by the Lessee shall be credited against future payments
required by this Section 8 next due, except that upon expiration of the Term of
any such excess shall be promptly refunded by the Lessor to the Lessee, and any
deficiency shall be promptly paid by the Lessee to the Lessor.
Notwithstanding anything in this lease to the contrary contained, the
Lessee shall not be required to pay or otherwise be responsible for (i) any
local, state or federal capital levy, franchise tax, revenue tax, income tax or
profits tax of the Lessor, or (ii) any estate, inheritance, devolution,
succession or transfer tax which may be imposed upon or with respect to any
transfer of the Lessor's interest in the Shopping Center; provided, however,
that if any time hereafter the methods of taxation prevailing at the date hereof
shall be altered so as to cause the whole or any part of the taxes, charges,
assessments or impositions now or hereafter levied, assessed or imposed on real
estate and the buildings, structures and other improvements thereon to be
levied, assessed and imposed, wholly or partially as a gross receipts, gross
income, capital levy, or other tax, on the rentals received therefrom, or if any
tax, corporation franchise tax, assessment, levy (including but not limited to
any municipal, state or federal levy), imposition or charge, or any part
thereof, shall be measured by or based in whole or in part upon the Shopping
Center and shall be imposed upon the Lessor, then all such taxes, assessments,
levies, impositions or charges, or the pat thereof so measured or based, shall
be deemed to be an imposition levied, assessed or imposed upon or with respect
to the Shopping Center, to the extent that the same would be payable if the
Shopping Center were the only property of the Lessor subject thereto, and the
Lessee shall pay to the Lessor the Lessee's Fraction of the same as and in-the
manner provided herein. [f there are any taxes levied or assessed at the time on
any item of rental payable hereunder, the Lessee further agrees to pay to the
Lessor, as additional rental, the amount thereof.
At the expiration of the Term, all payments for which the Lessee is
responsible as provided in this Section 8, shall be prorated to the date of such
expiration. The amount of any such payments which become due and payable after
the expiration or sooner termination of the Term shall, on or prior to the date
of such expiration or sooner termination, be deposited with the Lessor. If the
Lessee shall not be then in default, the amount of any net refund, abatement,
deduction, reduction, or credit received by the Lessor attributable to any such
payment earlier made by the Lessee shall be credited against future payments
required by this Section 8 next due, except that upon expiration of the Term any
such excess shall be promptly refunded by the Lessor to the Lessee.
In the event that the Lessor or any party authorized by the Lessor shall
contest, by appropriate proceedings, the amount or validity of any such tax,
assessment, imposition or charge the Lessee shall cooperate with the Lessor in
the course thereof and execute any applications, appeals and other documents
which may be required to enable the Lessor to maintain such proceedings, and
there shall be appropriate adjustments by credits against future payments
required by this Section 8, of all such taxes, assessments, impositions and
charges or reflect any abatements, credits and refunds which may be received by
the Lessor and to reflect the costs and expenses (including, without limitation,
attorneys' and appraisal fees and expenses) of contesting the amount or validity
of any such tax, assessment, imposition or charge.
The Lessee agrees to pay, on or before the respective due dates, all such
taxes, charges, assessments, or impositions levied, assessed or imposed at any
time on the Lessee's fixtures, equipment, supplies, merchandise or other
property in, on or about the Premises or Shopping Center.
9. Acceptance of the Premises "As-Is". The Lessee hereby acknowledges
that upon taking occupancy or opening for business, whichever shall first occur,
it shall be deemed to have accepted the Premises "as-is", after due inspection
thereof and without any representation or warranty as to the use or condition
thereof.
10. The Lessee's Construction. Promptly after notification by the Lessor
to do so, the Lessee shall, at the Lessee's expense, do all work to the Premises
necessary or appropriate to permit the Lessee to open for and operate its
business, install an exterior sign in accordance with the requirements of
Section 13 and equip the Premises with all trade fixtures and personal property
necessary or appropriate for the operation of the Lessee's business in the
Premises; provided, however, that none of the foregoing shall in any way hamper
prosecution of any construction being undertaken in or about the Shopping
Center. The Lessee agrees that all plans and specifications for all such work,
equipment and preparation and all alterations, improvements, restorations,
repairs, replacements or renovations which the Lessee may make pursuant to any
term or provision of this lease or any consent by the Lessor will be done by the
Lessee in a good and workmanlike manner, free from material defects in design,
construction, workmanship or materials, in accordance with all laws, ordinances,
rules, regulations and requirements of public authorities and the Fire Insurance
Rating Association having jurisdiction, and that same will not decrease the
value of the Shopping Center. In addition, all of the foregoing will be done in
such manner as will avoid jurisdictional or other labor disputes. All such work,
building mechanicals and equipment, building alterations and improvements,
restorations, repairs, replacements and renovations other than any bank
equipment, ATMs, trade fixtures, signs, merchandise, supplies and other personal
property of the Lessee shall forthwith become the property of the Lessor and
shall be expressly subject to the provisions of Section 11(u). The Lessee may
assign, encumber or otherwise create a security interest in, to or upon any of
the Lessee's property in the Premises without first obtaining the Lessor's prior
written consent provided, however, any such assignment, encumbrance or security
interest shall not encumber any portion of the real estate, including the
Premises, constituting the Shopping Center or any interest in this Lease. Upon
such entry, all of the terms and provisions of this lease shall be-in-full force
and effect except that the Lessee shall have no obligation to pay any Net
Minimum Rental and other rentals until the Commencement Date, but from and after
such entry the Lessee will pay all charges for light, heat, hot and cold water,
electric current and any other services or utilities furnished to the Premises,
including, without limitation, the charge described in Section 11(t).
11. The Lessee's Covenants. The Lessee hereby covenants with the Lessor
that the Lessee until the expiration of the Term and for such further time as
the Lessee, or any other person or persons claiming through or under the Lessee
shall hold the Premises or any part thereof: (a) will pay to the Lessor all
rental at the time and in the manner herein set forth; (b) will at all times
maintain all walls of the Premises (including, without limitation, the so-called
glass or storefront), the floor and subfloor therein (but excluding any
structural portion thereof as provided in Section 28 hereof), and the interior
of the
Premises, (including, without limitation the heating, ventilating, air
conditioning, plumbing, sanitary sewage, electric, sprinkler and lighting
systems and equipment therein (excluding, however any main trunk lines of any
such system, but including any branch runs and leads) and all floor coverings,
doors, door frames and door openers) in as good, clean and safe repair, order
and condition as same were at the Commencement Date or may be put in thereafter,
and all alterations, improvements, restoration, repairs, replacements or
renovations to the Premises required by any and all laws, ordinances, rules, the
regulations or requirements of all public authorities or the fire insurance
rating association having jurisdiction, all whether ordinary or extraordinary
all replacements to be of the same kind and quality as those which are replaced;
provided, however, that the Lessee shall not be responsible for repairs made
necessary by accidental fire or other insured unavoidable casualty; (c) will
make all repairs (whether interior, exterior, structural, nonstructural,
ordinary or extraordinary) made necessary by the negligence or misuse of the
Premises or the fixtures therein or appurtenances thereto by the Lessee, its
agents, employees, customers or invitees, or by any forcible entry, vandalism or
malicious mischief not reimbursable by the Lessor's insurance; (d) will pay all
charges for light, heat, hot and cold water, electric current and any other
services or utilities furnished to the Premises; (e) will not assign this lease
or sublet to any person, firm or corporation the whole or any part of the
Premises, or permit any person, firm or corporation other than (pound)he Lessee
to use or occupy the whole or any part thereof without obtaining on each
occasion the prior written consent of the Lessor, which consent will not be
unreasonably withheld, delayed or conditioned, but no such consent by the Lessor
(i) shall be deemed to be a waiver or release of any of the provisions of this
Clause (e) or a consent or agreement to consent to any such assignment,
subletting, or permission to use or occupy the Premises thereafter, (ii) shall
relate to any other term or provision of this lease including, without
limitation, the provisions of Section 6, and (iii) shall be deemed to permit any
subdivision of the Premises or any use or occupancy of the Premises by more than
one entity at any time; none of the foregoing shall release or discharge the
Lessee from any obligations or liabilities set forth in this lease, which
obligations and liabilities shall continue to be direct and primary in any
event; (f) will not overload or deface the Premises or permit any use of the
Premises which shall increase any insurance rate or create a fire hazard or be
unlawful, improper, noisy or offensive or which constitutes a nuisance or which
is contrary to any law, ordinance, rule, regulation or requirement of any public
authority or the Fire Insurance Rating Association having jurisdiction, or which
is injurious to any person or property, or commit waste, whether voluntary or
involuntary, or permit anyone else to do any of the foregoing; (g) Lessee
may:maintain ATMs for use of its customers at any time (subject, however, to all
applicable laws, rules, regulations or requirements of any public authorities
having jurisdictions thereover; provided, however, if Lessee requires additional
services in connection therewith, Lessee shall pay any additional costs incurred
therefore) (h) will not use any advertising media that might be objectionable to
the Lessor or other occupants of the Shopping Center, such as loud speakers,
phonographs or radio broadcasts that may be heard outside the Premises; (i) will
forthwith obtain and deliver to the Lessor and at all times thereafter maintain
in full force and effect, liability insurance (with completed operations and
contractual liability endorsements with limits acceptable to the Lessor and
insuring both the Lessor and the Lessee against all claims, suits, obligations
liabilities and damages, including attorneys' fees, based upon or arising out of
actual or alleged personal injuries or property damage resulting from, or
occurring in the same course of, or on or about, or otherwise relating to the
use or condition of, the Premises all such insurance to be for the protection
and benefit of, and adjustable with, the Lessor, the
Lessor's mortgagees and the Lessee, as their interests may appear, and shall be
in form and substance, and with additional limits, amounts and coverage, and
such endorsements, in addition to those specified herein, as shall be
satisfactory to the Lessor from time to time, and with insurers having current
Alfred M. Lest Company, Inc. ratings of A or better and financial size ratings
of Class XII or higher, and satisfactory to the Lessor from rime to time; the
Lessee will on demand, as often as reasonably requested by the Lessor, furnish
to the Lessor a complete list, statement and description of all such insurance,
together with certificates from each insurance company issuing any thereof that
same is in full force and effect, all premiums have been paid, and same will not
be canceled except upon ten (1O) days' prior written notice to the Lessor by
registered mail, return receipt requested; such liability insurance to be so
obtained and delivered prior to the Lessee's entry as permitted by Section 10;
(j) will not do or permit to be done anything in or about the Premises which (i)
shall make void or voidable any insurance carried by the Lessor or the Lessee
which is required by any term or provision of this lease or which relates to the
Shopping Center in any manner or way or (ii) shall increase or create extra
premiums therefor and will pay the Lessor on demand, as additional rental, the
amount of any such increase or extra premiums on insurance carried by the
Lessor; (k) will maintain and keep all windows, window frames and plate glass in
the Premises at all times in good repair, order and condition; (l) will always
conduct its operations in &e Premises under the Lessee's Trade Name (or in the
name of one or more affiliates or divisions of Lessee) set forth in Section l
unless the Lessor shall otherwise consent writing, which consent shall not be
unreasonably withheld or delayed; (m) will not use the Common Areas or the
sidewalks adjacent to the Premises, except for access to and from the Premises;
(n) will furnish to the Lessor, promptly after the receipt of a request
therefor, the license numbers of all vehicles of all persons employed on the
Premises by the Lessee; (o) will cooperate with Lessor in the event that the
Lessor notifies the Lessee that one or more of the Lessee's employees have
parked vehicles in violation of the Lessor's rules and regulations regarding
employee parking and has such vehicles towed, in Lessor's attempts to recover
from such employees all of the Lessor's costs and expenses in connection
therewith; (p) will cause all freight to be delivered and/or removed and all
refuse to be removed only in the manner and at such times as shall be designated
by the Lessor from time to time, and never store or maintain any such freight or
refuse outside of the Premises; (q) will not burn any trash, garbage or refuse
of any kind on the Premises or dispose of any of same in any manner other than
as expressly directed by the Lessor in writing from time to time; (r) will
operate the heating, ventilating and air conditioning systems in the Premises to
adequately heat or cool the Premises, as the case may be; (s) will not solicit
business in the parking or common area or areas or distribute handbills or other
advertising media to, in or upon any vehicles parked in the Common Areas; (t)
will pay, as additional rental, any trash charge from time to time determined by
the Lessor as shall be appropriate to help defray the cost of any central
station trash compactor and/or trash removal service in the Shopping Center
provided by the Lessor; and (u) will, at the expiration or sooner termination of
the Term, leave the Premises, including, without limitation, all walls of the
Premises, the floor and sub-floor therein, and the interior of the Premises,
including, without limitation, the heating, ventilating, air conditioning,
plumbing, sanitary sewage electric, sprinkler and lighting systems, and
equipment therein, and all doors, door frames, door openers, windows, window
frames and plate glass, in as good, clean and safe repair, order and condition
as the same were at the Commencement Date or may be put in thereafter,
reasonable wear and tear excepted, all replacements to be of the same kind and
quality as what is replaced, subject to the provision in Clause (b) above, and
provided that the Lessee shall not be responsible for
repairs made necessary by reasonable wear and rear, but the Premises shall be
left clean and tenantable, orderly and free of occupants, in any event, and
provided further the Lessee shall not be responsible for any such repairs made
necessary by any casualty insured against, so long as all insurance proceeds
paid or payable on account of such casualty are paid over or assigned to Lessor
together with the amount of any deductible. The Lessee shall remove from the
Premises at or prior to such expiration or sooner termination all fixtures,
equipment, signs, merchandise, supplies and other property of the Lessee, and
the Lessee shall, at its sole cost and expense, repair any damage caused by such
removal. Upon such expiration or termination, the Lessor may, in addition to all
other rights and remedies, without being guilty of any trespass, tort or breach
of contract, remove from the Premises any or all fixtures, equipment, signs,
merchandise, supplies and other property of the Lessee not removed by the Lessee
as provided in the immediately preceding sentence, and either store same for the
account of the Lessee at its expense, without obligation or liability on account
of any theft, loss, damage or monetary shortage, or deem same to be abandoned
and subject to use; sale or other disposition without obligation or liability to
account to the Lessee for the proceeds thereof. Notwithstanding the expiration
or sooner termination of the Term, the Lessee shall continue to be responsible
for, and shall pay to the Lessor all costs incurred by the Lessor in connection
with any such removal, storage, sale or other disposition.
12. No Alterations or Improvements. Except to the extent permitted by
Section 10 in connection with the original construction of the Premises and the
Lessee's obligations set forth in the last sentence of this Section 12, and
except for reasonable periodic redecoration of the Premises,.the Lessee will
make no alterations, additions or improvements to the Premises without on each
occasion first obtaining the prior written consent of the Lessor, which consent
shall not be unreasonably withheld, delayed or conditioned. Notwithstanding any
such consent by the Lessor, the Lessee will restore the Premises to their former
condition following any such alterations, improvements or additions at the
expiration or sooner termination of the Term unless the Lessor by written notice
to the Lessee at the time of such consent or at any time prior to suck
expiration or termination shall waive its rights to such restoration, in which
event the Lessee shall have no right so to restore the Premises.
13. The Lessee's Signs. The Lessee will not, without the Lessor's prior
written consent, or as otherwise provided herein, maintain, or permit anyone
else to maintain, any interior (except for signs affixed to interior walls of
the leased premises) or exterior sign, placard, lettering, advertising media,
shade, awning, aerial, flagpole or the like anywhere in the Shopping Center, or
any exterior lighting, decorations, painting or any fences. Except as otherwise
herein provided, the Lessee shall not maintain any exterior sign, placard,
lettering or advertising media in violation of the Lessor's established sign
standards from time to time.
Lessee shall have the right, subject to Lessor's design approval as
aforesaid, and the approval of all governmental authorities having jurisdiction,
to install and maintain two (2) approximately 3' x 5' carved wooden placard
signs on the exterior of the Premises identifying the Lessee.
14. Sole Risk and Hazard. All fixtures, equipment, signs, merchandise,
supplies and other property on or about the Premises shall be at the Lessee's
sole risk and hazard, and
if the whole or any part thereof shall be destroyed or damaged by fire, water or
otherwise, or by use or abuse of water, or by leaking or bursting of water
pipes, or in any way or manner, including, without limitation, the acts or
omissions of any other occupant of any portion of the Shopping Center, no part
of said loss or damage is to be charged to or borne by the Lessor in any case
whatsoever, except only to the extent caused by the Lessor's negligence or
willful default. and, except to such extent, the Lessee agrees to exonerate and
indemnify the Lessor from and against any and all claims, suits, obligations,
liabilities and damages, including attorneys' fees based upon or arising out of
any of the foregoing.
15. Fire, Casualty, Taking. PROVIDED, ALWAYS, that in case, after the
execution hereof and before the expiration of the Term, the Premises, or any
part thereof, or more than thirty (30%) percent of the Shopping Center shall be
taken by any exercise of the right of eminent domain or by action of any public
or other authority, or in case, after the execution hereof and before the
expiration of the Term, the Premises, or any part thereof, or more than thirty
(30%) percent of the Shopping Center shall be destroyed or damaged by fire or
casualty, then this lease and the Term shall terminate at the election of the
Lessor, which election must be exercised by written notice to the Lessee within
sixty (60) days after such taking, destruction, damage or action, and such
election may be made in case of any such taking notwithstanding the entire
interest of the Lessor may have been divested by such taking. If the Lessor
shall not elect to terminate this lease, the Lessor shall with reasonable
promptness restore the Premises as nearly as practicable to the condition which
existed immediately prior to such event, or, in the event of any such
destruction or damage by fire or casualty, so much thereof as the Lessee is not
herein elsewhere required to insure against destruction or damage by fire or
casualty, to a single contiguous unit all only to the extent of the Lessor's
insurance proceeds or damages or awards resulting from such taking, destruction,
damage or action allocable to the Premises, as the case may be, after deducting
the Lessor's costs and expenses of collecting same. If the Lessor shall not
elect to terminate this Lease, and commences restoration of the Premises and
such restoration is not completed by the Lessor within twelve (12) months of
such event, Lessee shall have the right to terminate this Lease by Notice to
Lessor given prior to the time the Premises are ready for occupancy, or if
during the last two (2) years of the Term, as the same may have been extended,
there is a taking, fire or other casualty pursuant to which the Lessor could
terminate this Lease as hereinabove set forth, the Lessee similarly shall have
the right to terminate this Lease by delivering to Lessor written notice of
Lessee's election to terminate within sixty (60) days after such taking,
destruction, damage or action. The Lessor will give the Lessee notice of when
the Premises are ready for occupancy, and upon such notice the Lessee will
comply with all of the provisions of Section 10 and Lessee will complete such
restoration required by said Section 10 within ninety (90) days of such Notice.
If the Premises or Shopping Center or any part-of either thereof shall be taken
by eminent domain, all damages from such taking other than that[ which relate
solely to the Lessee's fixtures and equipment, shall vest in the Lessor, the
Lessee having no right to damages for loss of its leasehold interest in any
event, and the Lessee covenants and agrees to execute such assignments or other
documents and to take any steps which may be necessary to vest such damages in
the Lessor, the Lessee hereby irrevocably appoints the Lessor as its agent and
attorney-in-fact to execute and deliver any such assignments and documents which
the Lessor deems necessary or appropriate to carry out the intent and purposes
of this sentence, such appointment being a power coupled with an interest.
16. The Lessor's Insurance. The Lessor will, upon commencement of the
Term, obtain and thereafter maintain in full force and effect (or cause to be so
obtained and maintained), (a) fire and lighting and extended coverage insurance
on such portions of the Premises and Shopping Center as the Lessee is not herein
elsewhere required to insure for not less than the replacement value of such
portions without deduction or adjustment for depreciation, except that an
appropriate deductible clause shall be permitted; and (b) such other insurance
on the Premises and Shopping Center against such insurable hazards, and such
additional limits and amounts on all such insurance as are from time to time
commonly obtained by owners of property similar to the Shopping Center or are
required by the holder of any mortgage on any portion of the Shopping Center, or
the Lessor shall otherwise deem appropriate, including, without limitation, rent
insurance and war risk insurance. Such insurance shall be with insurance
companies qualified to do business in the state in which the Premises are
located; it being understood, however, that any such insurance may be blanket
with other insurance maintained by the Lessor or the Lessor's affiliates.
17. Default By The Lessee. PROVIDED, ALSO, and this lease is upon the
condition, that (a) in the event of any failure by the Lessee to pay any item of
rental (whether the Net Minimum Rental or any item of additional rental)
continuing for ten (10) days after Notice specifying such failure, without its
being waived or cured; or (b) in the event of any failure by the Lessee to
perform, fulfill or observe any other representation, warranty or agreement by
the Lessee set forth herein, continuing for thirty (30) days after Notice from
the Lessor specifying such failure, without its being waived or its effect
cured, or the cure thereof commenced and diligently prosecuted at all times
thereafter; or (c) in the event that the estate created hereby shall be taken on
execution, or by other process of law; or (d) in the event that the Lessee or
any guarantor of the Lessee shall commit any act which would permit the entry of
an order for relief under the Bankruptcy Code (or any successor thereto) or be
declared bankrupt or insolvent according to law; or (e) in the event that any
petition under federal or state law pertaining to bankruptcy or insolvency or
for a reorganization or other relief shall be filed by or against the Lessee or
any guarantor of the Lessee; or (f) in the event that any assignment, trust,
mortgage or other transfer in trust or otherwise shall be made for the benefit
of creditors; or (g) in the event that the Lessee or any such guarantor shall
make or offer a composition of the Lessee's or such guarantor's debts, as the
case may be, with its creditors, or (h) in the event that a receiver, trust or
similar office or creditors' committee shall be appointed take charge of any
property of or to operate or wind up the affairs of the Lessee or such
guarantor; or (i) in the event that the Lessee shall vacate or abandon the
Premises, except Lessee shall not be deemed to have vacated the Premises if it
has closed the Premises for remodeling, and such remodeling is completed within
thirty (30) days; nor shall Lessee be deemed to have vacated or abandoned the
premises so long as it shall continue to pay all Net Minimum Rent and all
additional rent due hereunder, then in any of said cases (notwithstanding any
license of any former breach of covenant or condition. or waiver of the benefit
hereof, or consent in a former instance), the Lessor or the Lessor's agents may
lawfully immediately, or at any time thereafter and without further demand or
notice, enter into and upon the Premises or any part thereof in the name of the
whole and repossess the same as of the Lessor's former estate and expel the
Lessee and those claiming by, through or under the Lessee and remove the
Lessee's or their effects (in any of said cases 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 rental or
preceding breach of covenant or condition, and upon entry as aforesaid this
lease shall terminate, or the Lessor may terminate this lease by written notice
to the Lessee, the Lessee in any event waiving all statutory rights of
redemption, and the Lessee covenants with the Lessor that in case of such
termination, or in case of termination under statute for default of the Lessee,
the Lessee will at the election of the Lessor (which election may be made or
changed at any time or from time to time before the settlement), either (a) pay,
as liquidated damages for so much of the unexpired Term as is covered thereby,
and at the same times and in the same installments as are specified in this
lease, sums equal to the rental and other payments herein named or, if the
Premises shall have been relet, sums equal to the excess of the rental and other
payments last mentioned over the net sums actually received by the Lessor for
the period to which the rental and other payments last mentioned relate; or (b)
pay, as liquidated damages for the then unexpired Term, a sum which at the time
of such termination or at the time to which installments of liquidated damages
shall have been paid represents the excess of the rental and other payments
herein named over the then rental value of the Premises for the residue of the
Term; or (c) indemnify the Lessor against loss of the rental and other payments
herein named at the time of such termination or from the time to which
installments of liquidated damages shall have been paid, during the residue of
the Term each of the foregoing three alternatives being separable. The rental
and other payments named herein shall be deemed to be the Net Minimum Rental
plus all items of additional rental herein named. In addition to the foregoing
and regardless of which of the foregoing alternatives shall have been elected,
the Lessee agrees to pay to the Lessor on demand all expenses incurred by the
Lessor in order to (a) obtain possession of the Premises; (b) make such
alterations, improvements, repairs, replacements, renovation and restoration as
the Lessor deems necessary or advisable to put the Premises in good and rentable
repair, order and condition; and (c) relet the Premises, including without
limitation, the fees of attorneys, brokers, engineers and architects.
Notwithstanding anything elsewhere in this lease contained, however, in the
event that during any twelve (12) month period the Lessor shall have sent two
(2) or more notices of the kind referred to in Clauses (a) or (b) in the first
sentence of this paragraph, even though the Lessee shall have cured the failure
or failures specified in such notices, or waived the cure thereof, or, with
respect to a notice of the kind referred to in Clause (b) in the first sentence
of this Section 17, commenced such cure and diligently prosecuted same at all
times thereafter, and in the event that subsequently the Lessee shall fail to
pay any item of rental or perform, fulfill or observe any other representation,
warranty or agreement of the Lessee set forth herein (all as set forth in
Clauses (a) and (b) in the first sentence of this paragraph), then in any such
event the provisions for notice and grace periods set forth in such Clauses (a)
and (b) shall not be applicable to such subsequent failure or failures and,
therefore, the Lessor shall have the right, without demand or notice, to
exercise all of its rights and remedies set forth in this paragraph or
otherwise.
In the event that any failure by the Lessee to perform, fulfill or observe
any agreement herein to be performed, fulfilled or observed by the Lessee
continues for thirty (30) days, or, in situations involving potential danger to
the health or safety of persons in, or about the Premises or a further material
deterioration of, or damage to, the Premises, after written notice specifying
such failure without its being waived, its effect cured, or the cure thereof
commenced and diligently prosecuted at all times thereafter, the Lessor may at
its election perform, fulfill or observe such agreement for and on behalf of the
Lessee, and any amount which the Lessor shall expend for such purpose, or which
shall
otherwise be due by the Lessee to the Lessor hereunder, shall be deemed to be
additional rental and shall be paid to the Lessor on demand, together with
interest thereon at the Lease Interest Rate, from the date of expenditure or the
date the same shall have become due to the date of payment thereof in full.
Whenever in this lease provision is made that either party shall have the
right to terminate this lease, then, unless in said provision it is expressly
provided otherwise, neither party shall thereafter have any claim against the
other under this lease or on account of the termination thereof.
Whenever in this Lease provision is made for the performance by either
party of any term, covenant, condition or agreement herein contained within a
specified time period, such period shall be extended for the period (not to
exceed ninety (90) days) of any delay in performance caused by acts of God,
material shortages, or other conditions beyond the control of such party.
Nothing herein contained shall in any way be construed to extend the time for
performance of any monetary obligation herein contained
18. Quiet Enjoyment. Lessee, subject to the Terms and provisions of this
Lease, on payment of the Net Minimum Rental and all other rental charges and
observing, keeping and performing all of the other Terms and provisions of this
Lease on Lessee's part to be observed, kept and performed, shall lawfully,
peaceably and quietly have, hold, occupy and enjoy the Premises during the Term
hereof, without hindrance or ejection by Lessor or any party claiming by,
through or under Lessor; the foregoing covenant is in lieu of any other covenant
express or implied.
19. Broker. The Lessee and lessor covenant and agree with each other that
it has not dealt with any broker or any other person who would be entitled to be
paid a fee, commission or any other compensation (the "Broker") in connection
with this lease and the use and occupation of the Premises by the Lessee, and
Lessee and Lessor shall indemnify and hold the other harmless from any loss or
damage caused by such party's misrepresentation herein contained.
20. Subsidiaries or Affiliates of Lessor. The Lessee will not claim or
attempt to enforce any right or remedy against any one or more of the employees,
agents, officers, directors, parents, subsidiaries or affiliates of the Lessor,
arising out of or in any way based upon this lease or any act or omission by the
Lessor with respect to this lease or all or any portion of the Premises or
Shopping Center, except to the extent expressly permitted by any written
instrument signed by any one or more of the foregoing. The Lessor will not claim
or attempt to enforce any right-or remedy against any one or more of the
employees, agents, officers or directors of Lessee for any breach of Lessee's
obligations-hereunder except to the extent expressly permitted by any written
consent signed by one or more of the foregoing.
21. Notice of Default to the Lessor. In no event will the Lessor be deemed
to be in default because of any failure by the Lessor to perform, fulfill or
observe any covenant or agreement set forth herein or because of any breach of
any warranty by the Lessor set forth herein for thirty (30) days after written
notice to the Lessor specifying such failure or breach, without its being
waived, or if its effect is cured, or if the cure thereof is commenced and
diligently prosecuted thereafter.
22. Subordination. (a) The Lessee will on request, any time or from time
to time by any holder of a mortgage on all or any portion of the Shopping Center
(i) subordinate this lease and all of the Lessee's rights and estate hereunder
to such mortgage and to any renewals, extensions, substitutions, refinancings,
modifications or amendments thereof if the holder of such mortgage shall provide
to Lessee a non-disturbance agreement to the effect that in the event of a
foreclosure of such mortgage, Lessee's possession of the Premises and its rights
and privileges under this Lease shall not be disturbed by such holder, or anyone
claiming under such holder so long as Lessee shall not be in default under this
Lease; or (ii) declare this lease to be prior to such mortgage and to any
renewals, extensions, modifications or amendments thereof; and in either such
case, Lessee will on request agree with such holder that the Lessee will attorn
thereto in the event of foreclosure and that the Lessee will not without the
consent of such holder amend this lease or prepay any item of rental hereunder.
(b) If Lessor shall elect to convert the Shopping Center or any portion
thereof to a condominium (which election may be changed from time to time) and
the Premises shall constitute a unit thereof, Lessee agrees that, at Lessor's
request, it shall subordinate this lease to the condominium documents,
including, without limitation, the Master Deed provided such documents do not
materially adversely affect Lessee's rights and interests under this Lease and
that this Lease shall be deemed to refer to the condominium unit constituting or
approximately constituting the Premises, and Lessee shall observe the
obligations imposed upon occupants of units to the extent not inconsistent
herewith; provided, however, that Lessor shall have and retain all rights to
vote or other rights associated with a unit. If Lessor shall intend to sell the
unit, Lessor shall offer such unit to Lessee upon the terms, provisions and
conditions which Lessor would be willing to sell the same to a bona fide third
party; and Lessee shall have thirty (30) days within which to accept such offer
in writing. Such condominium documents shall not be inconsistent with the
provisions of this lease or adversely affect Lessee.
23. No Liens. The Lessee will forthwith cause any mechanics',
materialmen's or other liens which may be recorded or perfected or which may
otherwise attach to all or any portion of the Shopping Center as a result of
work done by or for the Lessee to be discharged or released of record or fully
bonded by a surety satisfactory to the Lessor.
24. Entry and Inspection By The Lessor. The Lessor and its agents shall
have the right to enter into and upon the Premises or any part thereof, at all
reasonable times and upon reasonable notice, only when-accompanied by a bank
officer who will be made available for the purpose, to examine the same and make
repairs or alterations the Lessor is expressly required hereunder or desires to
make thereto. On or before the Commencement Date, Lessee shall provide to Lessor
names and telephone numbers of all bank officers Lessor may contact to respond
in the event of an emergency and alternative procedures Lessor may follow in the
event such persons are not available in such emergency situations. The Lessee
shall permit inspection of the Premises (except for the vault areas)t at all
reasonable times upon reasonable notice, by prospective purchasers or mortgagees
and during the last year of the Term, by prospective lessees and shall permit
the usual "To Let" or "For Sale" signs to be placed on the Premises.
25. Notice to Mortgagee. Upon receipt of a written request by the Lessor
or any holder or a mortgage on all or any part of the Premises or Shopping
Center, the Lessee will thereafter send any such holder copies of all notices of
default or termination or both given by the Lessee to the Lessor in accordance
with any provision of this Lease. In the event of any failure by the Lessor to
perform, fulfill or observe any agreement by the Lessor herein or any breach by
the Lessor of any representation or warranty of the Lessor herein, any such
holder may at its election cure such failure or breach for and on behalf of the
Lessor.
26. Memorandum of Lease. Neither party will record this lease, but each
party will on demand by the other party execute an appropriate memorandum or
notice of this lease in form and substance reasonably satisfactory to the
Lessor, and either party may record same at its expense. Promptly following the
Commencement Date, the parties will execute a document in recordable form and
satisfactory in form and substance to the Lessor setting Forth the commencement
and expiration dates of the Term.
27. Waiver of Subrogation. To the extent available under standard policies
of insurance without extra cost, or if extra cost shall be charged therefor, so
long as the other party pays such extra cost, each party hereby waives all
liability and all rights to recovery and subrogation against, and agrees that
neither it nor its insurers will sue the other party for any loss of or damage
to property arising out of fire or casualty and each party agrees that all
insurance policies relating to the Premises will contain waivers by the insurer
of such liability, recovery, subrogation and suit. If extra cost is chargeable
therefor, each party shall advise the other party of the amount of the extra
cost and the other party, at its election, may pay the same, but shall not be
obligated to do so.
28. Repairs By The Lessor. Except to the extent that the same shall be the
responsibility of the Lessee pursuant to any other term or provision of this
lease, and except for delays caused by or resulting from act of God, war, fire,
casualty; strike, shortage of labor or materials or any other cause beyond the
Lessor's control, the Lessor agrees to maintain and repair all structural
portions of the Premises and the foundations thereof including the structural
portions of the walls, exterior and demising, the floor, and sub-floor and the
roof but specifically excluding any non-structural portion of any of the
foregoing.
29. Estoppel Letter. The Lessee will from time to time, upon not less than
fifteen (15) days' prior written request by the Lessor, deliver to the Lessor,
any actual or prospective purchaser or holder of a mortgage on all or any part
of the Premises a written statement certifying whether or not this lease is in
full force and effect and stating (a) the last date to which the rental and
other payments have been made; (b) the amendments, if any, to this lease; (c)
whether or not the Lessor is in default in the performance, fulfillment or
observance of any representation, warranty or agreement set forth herein or has
any indebtedness to the Lessee for the payment of money; and (d) if so, each
default or indebtedness. The Lessee hereby irrevocably appoints the Lessor as
its agent and attorney-in-fact to execute and deliver any such statement, such
appointment being coupled with an interest, in the event that within such
fifteen (15) day period, the Lessee shall fail so to deliver any such statement
to the Lessor or any such actual or prospective purchaser or holder.
30. Collateral Assignment of Lease. With respect to any assignment by the
Lessor of the Lessor's interest in this lease or the rental and other payments
payable
hereunder, conditional in nature or otherwise, which assignment is made to the
holder of a first mortgage on the Lessor's estate, the Lessee agrees.
(a) that the execution thereof by the Lessor and the acceptance
thereof by the holder of such mortgage shall never be deemed an
assumption by such holder of any of the obligations of the Lessor
hereunder, unless such holder shall, by written notice sent to
the Lessee, expressly otherwise elect; and
(b) that, except as aforesaid, such holder shall be treated as having
assumed the Lessor's obligations hereunder only upon foreclosure
of such holder's mortgage and the taking of possession of the
Premises.
31. No Liability. Anything else in this lease to the contrary
notwithstanding, the Lessee shall look solely to the estate and property of the
Lessor in the Shopping Center for the satisfaction of any claim for the payment
of money by the Lessor by reason of any default or breach by the Lessor of any
of the terms and provisions of this lease to be performed, fulfilled or observed
by the Lessor, and no other property or assets of the Lessor shall be subject to
levy, execution or other enforcement procedure for the satisfaction of the
Lessee's remedies for any such default or breach.
32. The Lessor While An Owner. As used herein "Lessor" shall mean the
owner from time to time of the Lessor's estate and property in the Shopping
Center and if such estate and property be sold or transferred, the seller or
transferor shall thereupon be relieved of all obligations and liabilities
hereunder thereafter arising or occurring, and the purchaser or transferee shall
thereupon be deemed to have assumed and agreed to perform and observe all
obligations and liabilities hereunder thereafter arising or occurring or based
on occurrences or situations thereafter arising or occurring, subject in any
event to the provisions of Section 32.
33. Miscellaneous. All terms and provisions of this lease shall be
independent and shall inure to the benefit of and be binding upon the personal
representatives, successors and assigns of the parties, except as otherwise
expressly provided herein. Every term and provision of this lease shall be
deemed of the essence and every breach thereof material to the Lessor. All
representations, warranties and agreement of the Lessee in this lease shall be
deemed special, unique and extraordinary; any breach of any provision thereof by
the Lessee shall be deemed to cause the Lessor irreparable injury not properly
compensable by damages in an action at law, and the rights and remedies of the
Lessor hereunder may therefore be enforced both at law or in equity, by
injunction or otherwise. All rights and remedies of each party shall be
cumulative and not alternative, in addition to and not exclusive of any other
right or remedy to which such party may be lawfully entitled in case of any
breach or threatened breach of any term or provision herein except as otherwise
expressly provided herein; the rights and remedies of each party shall be
continuing and not exhausted by any one or more uses thereof, and may be
exercised at any time or from time to time and as often as may be expedient; any
option or election to enforce any such right or remedy may be exercised or
changed at any time or from time to time. This lease sets forth the entire
agreement of the parties, and no custom, act, forbearance, or words or silence
at any time, gratuitous or otherwise, shall impose any additional obligation or
liability upon either party or waive or release either party from any
default or the performance of fulfillment of any obligation or liability or
operate as against either party as a supplement, alteration, amendment or change
of any term or provision set forth herein, including this Clause, unless set
forth in a written-instrument duly executed by such party expressly stating that
it is intended to impose such an additional obligation or liability or to
constitute such a waiver or release, or that it is intended 10 operate as such a
supplement, alteration, amendment or change.
34. Notice. All notices and other communications shall be in writing and
deemed given and delivered to the Lessor when mailed, by registered or certified
mail, postage and registration or certification charges prepaid, addressed, in
the case of the Lessor, to the Lessor at the Lessor's Address set forth in
Section 1, with a copy simultaneously so mailed to the Lessor's Counsel set
forth in Section 1, at its address set forth in Section 1; and addressed, in the
case of the Lessee, to the Lessee at the Lessee's Address set forth in Section
1, with a copy simultaneously so marked to the Lessee's counsel set forth in
Section 1, except that either party may, by written notice to the other,
designate another address which shall thereupon become the effective address of
such party for the purposes of this Section.
35. Local Law. This lease shall be construed and enforced in all respects
in accordance with the laws of the state in which the Premises are located:
36. Headings. The Cover Page and Table of Contents preceding this lease
and the captions to the various Sections of this lease have been inserted for
reference only and shall not in any manner be construed as modifying, amending
or affecting in any way the express terms and provisions hereof.
37. Separability, If any term or provision of this lease or the application
thereof to any person, property 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, properties and circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
term and provision of this lease shall be valid and enforced to the fullest
extent permitted by law.
38. Authority. The execution and delivery of this Lease by the party so
executing and delivering this Lease on behalf of the Lessor and Lessee,
respectively, constitutes a warranty and representation by such party that such
party is duly authorized
and empowered for and on behalf of such party to execute and deliver this Lease
and that this Lease constitutes a valid and binding obligation of such party.
WITNESS the execution hereof under seal the day and year first above
written
SEAL
WITNESS: LESSOR:
89 PLEASANT STREET REALTY TRUST
/s/ By: /s/ Andrew B. Rose
- -------------------------- --------------------------
Andrew B. Rose, as Trustee
as aforesaid, and not
individually
WITNESS: LESSEE:
IPSWICH SAVINGS BANK
/s/ By: /s/ David L. Grey
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President not individually
(duly authorized)