Exhibit 99(a)
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AGREEMENT OF PURCHASE AND SALE
This Agreement is made this 18th day of August, 1998, by and between
COASTAL BANK d/b/a COASTAL SAVINGS BANK, a Maine banking corporation ("Seller"),
and SYSCO FOOD SERVICES OF NORTHERN NEW ENGLAND, INC., a Maine corporation
("Buyer").
1. Premises. Seller agrees to sell and Buyer agrees to buy a certain lot or
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parcel of land, with any improvements thereon and all easements and
appurtenances benefitting or belonging thereto, located at 36 Thomas Drive,
Colonial Westbrook Executive Park, in the City of Westbrook, Cumberland
County, Maine, being all property owned by Seller at said location,
containing approximately two (2.0(plus or minus)) acres with an
approximately 12,500(plus or minus) s.f. building, identified on the tax
maps of the City of Westbrook as Map 3, Lot 1-11, and being more
particularly described on the attached Exhibit A (the "Premises"). The
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Premises shall not include personal property or certain trade fixtures and
equipment related to the banking and financial industry, including (without
limitation) the night deposit box, vaults, security systems, the teller
stations, and the rotating file equipment; provided, however, that Seller
shall repair all damage caused by the removal of such personal property,
trade fixtures, or equipment prior to closing.
2. Purchase Price. Buyer agrees to pay to Seller for the Premises the sum of
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One Million Six Hundred Thousand Dollars ($1,600,000.00) (the "Purchase
Price"), payable as follows:
a. One Hundred Thousand Dollars ($100,000.00) upon the execution of this
Agreement (the "Deposit"), to be held in escrow by The Boulos Company
(the "Escrow Agent") in a non-interest-bearing account; and
b. One Million Five Hundred Thousand Dollars ($1,500,000.00) at closing
in cash, certified check, or wire transferred funds.
3. Closing. The closing shall take place at 10:00 a.m. on September 15, 1998,
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at the offices of Verrill & Dana, LLP, One Portland Square, Portland,
Maine, or at such other time and place as may be mutually agreed upon by
Seller and Buyer.
4. Deed, Title. Seller agrees to convey to Buyer good and marketable title to
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the Premises, by quitclaim deed with covenant delivered at closing, free
and clear of liens and encumbrances except (a) real estate taxes assessed
but not due and payable, (b) easements of record for utilities servicing
only the Premises, and (c) easements, restrictions, or other matters of
record that do not, in Buyer's sole discretion, adversely affect Buyer's
intended use of the Premises. Should title to the Premises prove to be
defective at closing for any reason other than one specified as aforesaid,
then, at Seller's option, Seller shall have a reasonable period of time
(not to exceed thirty (30) days) to correct and cure such defects and the
closing shall be extended for such reasonable period. If such defects are
not cured within such a reasonable period or Seller elects not to cure
same, then Buyer shall either: (y) elect to close and accept title "as
is", without reduction in the Purchase Price; or (z) terminate this
Agreement, whereupon the Deposit shall be returned to Buyer and neither
party shall have any further obligations hereunder. Seller hereby agrees
that the description in the deed to be delivered at closing shall, at the
option of Buyer, utilize a description determined by a survey of the
Premises that is reasonably acceptable to Seller; provided, however, that
if Buyer so elects to utilize such a description, then Seller's quitclaim
covenants shall not apply to such description.
5. Collateral Documents. The parties further agree to execute and deliver to
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each other at the closing such title insurance affidavits (concerning
tenants/occupants in possession and mechanics' liens only, with an
exception for occupancies by encroachment that an accurate survey would
disclose), evidences of authority, and further documents as are reasonably
necessary to effect the conveyance of the Premises in accordance with this
Agreement.
6. Prorations. All real estate taxes, service and supply contracts and
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utilities shall be prorated at closing.
7. Inspections. Prior to the closing and upon reasonable written notice to
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Seller, Buyer shall have the right to enter, inspect, survey, and perform
engineering tests and other site analyses on the Premises, and assess the
Premises for the purpose of Buyer's intended acquisition and use of the
Premises, provided that Buyer shall repair damage to the Premises and
indemnify Seller for any harm, damage, or loss suffered by Seller that is
caused by such entry or activities.
8. Risk of Loss. Until the delivery of the deed from Seller to Buyer, the
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risk of loss or damage to the Premises by fire or condemnation shall be on
Seller. If, prior to the closing, any portion of the Premises shall be
taken by eminent domain, then, pursuant to Buyer's election, either (a)
Seller shall pay over and assign to Buyer at closing all amounts recovered
or recoverable on account of such taking, or (b) this Agreement shall
terminate, whereupon the Deposit shall be returned to Buyer, and neither
party shall have any further obligations hereunder.
9. Conditions Precedent to Buyer's Obligation to Close: Notwithstanding
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anything in this Agreement to the contrary, Buyer's obligation to close
under this Agreement is contingent upon satisfaction of the following
conditions:
a. Buyer's review and approval, in Buyer's sole discretion, of
satisfactory evidence that the Premises are not in violation of any
applicable environmental laws, ordinances, regulations, or orders; and
b. Buyer's review and approval, in Buyer's sole discretion, of the status
of the title to the Premises.
If the result of any inspection or search made in connection with the
foregoing conditions is unsatisfactory to Buyer, then Buyer may declare
this Agreement null and void by notifying Seller in writing within 21 days
of the date of this Agreement, in which event the Deposit shall be returned
to Buyer and neither party shall have any further obligations hereunder.
If Buyer does not notify Seller that such inspection or search is
unsatisfactory within the time period set forth above, then this
contingency is waived by Buyer.
10. Possession. Full possession of the Premises, free of all tenants and other
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occupants (other than Seller, which may remain in accordance with the
leaseback terms set forth below), shall be delivered to Buyer at the
closing, with any improvements on the Premises to be in the same condition
as they are now, reasonable use and wear excepted.
11. Default. Upon Buyer's default under this Agreement, Seller shall have the
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option of either retaining the Deposit as full and complete liquidated
damages or employing all available remedies, including monetary damages or
specific performance. Should Seller elect to retain the Deposit, this
Agreement shall terminate and neither party shall be under any further
obligation hereunder. In the event of default by either party, the Escrow
Agent will not return the Deposit to Buyer or turn over the Deposit to
Seller without written releases from both parties.
12. Representations and Warranties of Seller. Seller represents and warrants
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to Buyer that the following are true as of the date of this Agreement and
will be true as of the closing:
a. Seller is a corporation organized under the laws of the State of
Maine, and is authorized to transact the business which it presently
conducts. Seller has the full and unrestricted right, power and
authority to (i) sell the Premises to Buyer in accordance with the
terms and conditions hereof, (ii) execute and deliver this Agreement
and all other documents to be executed and delivered, either
simultaneously
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herewith or at closing, in connection with the transaction
contemplated herein, and (iii) perform all obligations that arise
under this Agreement or under such documents. This Agreement and all
other documents executed and delivered, or to be executed and
delivered, by Seller (contemporaneously herewith or at the closing) in
connection with the transaction contemplated herein have been, or at
the appropriate time will be, duly executed and delivered and
constitute or, upon such execution and delivery will constitute, the
legal, valid and binding obligations of Seller enforceable in
accordance with their respective terms and provisions, subject,
however, to the effect of any bankruptcy, reorganization, moratorium,
insolvency, or other laws affecting the rights of creditors generally.
Seller has taken, or will have taken prior to closing, all action
required to authorize its execution of this Agreement and such other
documents. No consent or approval of any person, firm, corporation or
governmental authority is required to be obtained by Seller in order
for Seller to enter into this Agreement or any such other document or
to fully perform all of Seller's obligations under this Agreement or
any such other document.
b. To the best of Seller's knowledge, there is no underground oil storage
facility located on the Premises as that term is defined under the
provisions of 38 M.R.S.A. (S) 562-A, as amended.
c. There are no leases, tenancies or occupancies with respect to the
Premises; provided, however, that Seller makes no representation or
warranty that there are no occupancies by encroachment that an
accurate survey would disclose.
In the event that Buyer becomes aware of any material breach of any of the
representations or warranties set forth herein, or becomes aware that any
of such representations or warranties are untrue in any material respect,
Buyer shall have the right, in addition to any other remedies available to
Buyer at law or in equity, to terminate this Agreement by written notice to
Seller, and upon the giving of such notice this Agreement shall be
terminated, and the Deposit and interest thereon shall forthwith be
returned to Buyer, whereupon Buyer shall have no further liability
hereunder. Buyer acknowledges that, except as specifically set forth
herein, Seller is making no representations or warranties as to the
condition of the Premises, the presence or absence of any hazardous
materials or substances on the Premises, and/or the suitability for any
intended use of the Premises.
13. Real Estate Broker. Each party represents and warrants that Tony McDonald
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of The Boulos Company is the only real estate broker involved in this
transaction, and Buyer shall be solely responsible for the commission to be
paid. Each party shall indemnify and hold harmless the other for breach of
the representation and warranty in this paragraph, with the indemnifying
party being the party whose actions give rise to the claim asserted. The
indemnifying party shall be responsible for all harm, damages, and costs
(including reasonable attorneys' fees) suffered by the other party as a
result of any such breach.
14. Like-Kind Exchange. Buyer agrees to cooperate with Seller in conducting
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this transaction as a tax deferred exchange in accordance with Section 1031
of the Internal Revenue Code (an "Exchange"). In the event of an Exchange,
Buyer shall be entitled to receive title directly from Seller and to
receive all of the documents, certificates and other instruments required
of Seller by this Agreement directly from Seller. Buyer shall have no
responsibility to take title to or other action with respect to the
replacement property or any other actions whatsoever with respect to the
Exchange after the closing. Buyer shall have no responsibility as to
whether the Exchange contemplated hereby can be accomplished or will
qualify for the tax treatment desired by Seller. The failure of the
Exchange to be accomplished or to so qualify shall in no way affect the
validity of this Agreement or the obligations of the Seller to convey the
Premises to Buyer hereunder or any of Seller's other warranties,
representations, or obligations under this Agreement, and the closing with
respect to the Premises shall be final and conclusive between the parties
notwithstanding any failure of the Exchange to occur or to qualify as a
tax-free exchange.
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15. Leaseback. At the closing, the parties agree to enter into a commercial
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lease of the building on the Premises, in "as is" condition, with Buyer as
landlord and Seller as tenant, in substantially the same form as the
attached Exhibit B. Said lease shall have an eighteen (18) month term,
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with tenant having the right to terminate upon sixty (60) days' written
notice to landlord, and a rent schedule as follows:
Months 1-6: $0.00/month, net, net, net
Months 7-12: $8,333.33/month, net, net, net
Months 13-18: $14,583.33/month, net, net, net
The lease shall be triple net in nature, with the tenant responsible for
all costs, charges, duties, rates, licenses and permit fees, real and
personal property taxes, levies and assessments, insurance premiums, and
expenses relating to the Premises that may arise or become due during the
term of the lease; provided, however, that tenant shall have no obligation
to maintain and repair the roof, exterior walls, and structure of the
building, unless such maintenance or repair is made necessary by fault or
neglect of the tenant or the employees, contractors, agents or invitees of
tenant, in which case such maintenance or repair shall be at the expense of
the tenant and tenant shall pay all costs therefor.
16. Notices. Any notices or other communications under this Agreement shall be
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in writing, delivered in hand or sent by certified mail, return receipt
requested, or by Federal Express or other recognized overnight courier,
addressed as follows:
To Buyer: To Seller:
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SYSCO Food Services of Coastal Bank
Northern New England, Inc. Attn: Greg Caswell
d/b/a Jordan's SYSCO Food Services 36 Thomas Drive
55 Thomas Drive Westbrook, ME 04092
Westbrook, ME 04092
with copies to: with copies to:
SYSCO Corporation Jaimie P. Schwartz, Esq.
Attn: General Counsel Bernstein, Shur, Sawyer
1390 Enclave Parkway & Nelson, P.A.
facsimile: (207) 774-1127
Houston, TX 77077-2099
facsimile: (281) 584-2510
Anthony M. Calcagni, Esq.
Verrill & Dana, LLP
facsimile: (207) 774-7499
17. Merger. This Agreement represents the entire contract between Buyer and
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Seller and shall not be amended except by a writing executed by both
parties.
18. Miscellaneous. This Agreement shall be governed by Maine law, and shall be
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binding upon and inure to the benefit of the parties and their respective
successors and assigns.
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IN WITNESS WHEREOF, BUYER and SELLER have executed this Agreement as of the
date first above written.
WITNESS: SYSCO FOOD SERVICES OF NORTHERN NEW
ENGLAND, INC.
/s/ C. Anthony McDonald By: /s/ Richard A. Giles
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Its: President and Chief Executive Officer
COASTAL BANK
/s/ C. Anthony McDonald By: /s/ Gregory T. Caswell
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Its: President and Chief Executive Officer
SYSCO CORPORATION, a publicly traded corporation (SYY:NYSE), hereby joins
in this Agreement for the purpose of guarantying the performance by Buyer of its
obligations under this Agreement.
WITNESS: SYSCO CORPORATION
/s/ Thomas P. Kurz By: /s/ Diane Day Sanders
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Its: Vice President and Treasurer
The Boulos Company agrees to hold the Deposit in escrow pursuant to the terms of
this Agreement.
THE BOULOS COMPANY
By: /s/ C. Anthony McDonald Date: August 18, 1998
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Its: Vice President
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Exhibit A
A certain lot or parcel of land together with the buildings and improvements now
or hereafter thereon, situated on the northerly side of Thomas Drive, so called,
in the City of Westbrook, County of Cumberland, State of Maine and being more
particularly bounded and described as follows:
Beginning at a set iron pipe at the southeasterly corner of lot 10 as shown on a
Definitive Subdivision Plan for Colonel Westbrook Industrial Park recorded in
the Cumberland County Registry of Deeds in Plan Book 138, Page 56.
Thence N 21(degrees) 29' 32" E 389.39' by and along the easterly sideline of
said Lot 10 to a set iron pipe on the southerly side of the County Road, so
called.
Thence S 76(degrees) 31' E 202.00' by and along the southerly sideline of
said County Road to a set iron pipe at the northwesterly corner of Lot 11 as
shown on a Definitive Plan of Re-Subdivision Lot 11, Colonel Westbrook
Industrial Park dated February 28, 1986, to be recorded in the Cumberland County
Registry of Deeds.
Thence S 19(degrees) 39' 25" W 449.29' by and along the westerly sideline
of said Lot 11 to a set iron pin on the northerly sideline of said Thomas Drive.
Thence by a non tangent curve to the right having a radius of 966.57' and an
arc length of 91.66' by and along the northerly sideline of said Thomas Drive
to a point of tangency to be marked by a granite bound.
Thence N 58(degrees) 59' 51" W 125.16' by and along the northerly
sideline of said Thomas Drive to the point of beginning.
Meaning and intending to describe a parcel of land containing two acres, more or
less, and being designated as Lot 11 on the Definitive Plan of Re-Subdivision,
Lot 11, Colonel Westbrook Industrial Park, Westbrook, Maine, dated February 28,
1986, developed by Allied Properties, Inc., 208 Fore Street, Portland, Maine and
being prepared by Sebago Technics, Inc., 9 Circus Time Road, South Portland,
Maine. Said plan recorded in the Cumberland County Registry of Deeds in Plan
Book 153, Page 46.
Subject to however, a 30' utility easement running along the westerly sideline
of the above described parcel. The easterly 15' of said 30' utility line
lying within Lot 11 as indicated on said Definitive Plan of Re-Subdivision of
Lot 11.
Exhibit B
MAINE COMMERCIAL ASSOCIATION OF REALTORS
COMMERCIAL LEASE (NET LEASE)
1. PARTIES _________________________________________________, with
(fill in) a mailing address of __________________________________
("LANDLORD"), with a mailing address of
______________________________________, ("TENANT"), and
the TENANT hereby leases from LANDLORD the following
described premises:
2. PREMISES The premises are deemed to contain ___________ square
(fill in and feet. The Premises are located at ___________________
include, if ______________________________________________________
applicable, ____________________________ together with the right to
suite number, common, with others entitled thereto, the hallways,
floor number, stairways and elevators necessary for access to said
and square feet) leased premises, and lavatories nearest thereto. The
leased premises are accepted in "as is" condition except
if specifically set forth to the contrary in this lease.
3. TERM The term of this lease shall be for ___________, unless
(fill in) sooner terminated as herein provided, commencing on
_______________, 19 ___ and ending on
_________________, 19 ___.
4. RENT The TENANT shall pay to the LANDLORD the following
(fill in) base rent:
Lease Year(s) Annual Base Rent Monthly Rent
____________ $________________ $_____________
____________ $________________ $_____________
____________ $________________ $_____________
____________ $________________ $_____________
____________ $________________ $_____________
payable in advance in equal monthly installments on the
first day of each month during the term, said rent to be
prorated for portions of a calendar month at the beginning
or end of said term, all payments to be made to LANDLORD
or to such agent and at such place as LANDLORD shall from
time to time in writing designate, the following being now
so designated: ________________________________. If TENANT
does not pay base rent, supplemental and additional rents,
or other fees and charges when due pursuant to the terms
of this Lease, then LANDLORD, in its sole discretion, may
charge, in addition to any other remedies it may have, a
late charge for each month or part thereof that TENANT
fails to pay the amount due after the due date. The late
charge shall be equal to four percent (4%) of the amount
due LANDLORD each month in addition to the rent then due.
5. RENEWAL OPTION So long as TENANT has not been in default of this lease
(fill in or during the term hereof, TENANT shall have the option
delete) to renew this lease for ________________. In order to
exercise TENANT's option, TENANT shall notify LANDLORD in
writing by Certified or Registered Mail of its intention
to exercise its option on or before six (6) months prior
to the end of the then current term, said renewal to be
upon the same terms and conditions set forth in this Lease
except for base rent which shall be as follows:
Lease Year(s) Annual Base Rent Monthly Rent
____________ $________________ $_____________
____________ $________________ $_____________
____________ $________________ $_____________
____________ $________________ $_____________
____________ $________________ $_____________
In the event that TENANT fails to perform its obligations
under this Section, time being of the essence, the option
shall be deemed not to have been exercised.
6. SECURITY Upon the execution of this lease, the TENANT shall
DEPOSIT pay to the LANDLORD the amount of
(fill in) ____________________________ DOLLARS ($_______________),
which shall be held as a security for the TENANT's
performance as herein provided and refunded to the TENANT
without interest at the end of this lease subject to the
TENANT's satisfactory compliance with the conditions
hereof.
7. RENT TENANT will pay to LANDLORD as additional rent hereunder,
ADJUSTMENT in accordance with subparagraph B of this Article, _______
A. TAXES percent of all real estate taxes on the land and
(fill in) buildings of which the leased premises are a part in each
year of the term of this lease or any extension or renewal
thereof and proportionately for any part of a fiscal year
in which this lease commences or ends. If the LANDLORD
obtains an abatement of any such excess real estate tax, a
proportionate share of such abatement, less the reasonable
fees and costs incurred in obtaining the same, if any,
shall be refunded to the TENANT.
B. OPERATING The TENANT shall pay to the LANDLORD as additional rent
COSTS hereunder in accordance with subparagraph B of
(fill in) this Article, _______ percent of all operating expenses.
Operating expenses are defined for the purposes of this
agreement as operating expenses per annum of the building
and its appurtenances and all exterior areas, yards,
plazas, sidewalks, landscaping and the like then (i.e. as
of said last day of the calendar year concerned) located
outside of the building but related thereto and the
parcels of land on which they are located (said building,
appurtenances, exterior areas, and land hereinafter
referred to in total as the "building"). Operating
expenses include, but are not limited to: (i) all costs of
furnishing electricity, heat, air-conditioning, and other
utility services and facilities to the building, (ii) all
costs of any insurance carried by LANDLORD related to the
building, (iii) all cost for common area cleaning and
janitorial services, (iv) all costs of maintaining the
building including the operation and repair of heating and
air-conditioning equipment and any other common building
equipment, non-capital roof repairs and all other repairs,
improvements and replacements required by law or necessary
to keep the building in a well-maintained condition, (v)
all costs of snow and ice removal, landscaping and grounds
care, (vi) all other costs of the management of the
building, including, without limitation, property
management fees, and (vii) all other reasonable costs
relating directly to the ownership, operation, maintenance
and management of the building by LANDLORD. The TENANT's
share of operating expenses shall be prorated should this
lease be in effect with respect to only a portion of any
calendar year.
During each year of the term of this lease TENANT shall
make monthly estimated payments to LANDLORD, as additional
rent, for TENANT's share of real estate taxes and
operating expenses for the then current year. Said
estimated monthly payments shall be made along with base
rent payments and shall be equal to one-twelfth (1/12) of
TENANT's annualized share of LANDLORD's real estate taxes
and operating expenses for the current year. After the end
of each calendar year, LANDLORD shall deliver to TENANT a
statement showing the amount of such real estate taxes and
operating expenses and also showing the TENANT's share of
the same. The TENANT shall, within thirty (30) days after
such delivery, pay the TENANT's share to the LANDLORD, as
additional rent, less any estimated payments. If the
estimated payments exceed TENANT's share, then the excess
shall be applied to the next year's monthly payments for
estimated increases.
8. UTILITIES The TENANT shall pay, as they become due, all bills for
electricity and other utilities (whether they are used for
furnishing heat or other purposes) that are furnished to
the leased premises and presently separately metered, all
bills for fuel furnished to a separate tank servicing the
leased premises exclusively and all charges for telephone
and other communication systems used at, and supplied to,
the leased premises. The LANDLORD agrees to furnish water
for ordinary drinking, cleaning, lavatory and toilet
facilities and reasonable heat and air conditioning, if
installed as part of the structure of the building (except
to the extent that the same are furnished through
separately metered utilities or separate fuel tanks as set
forth above), so as to maintain the leased premises and
common areas of the building at comfortable levels during
normal business hours on regular business days of the
heating and air conditioning seasons of each year, to
furnish elevator service, if installed as part of the
structure of the building, and to light passageways and
stairways during business hours, and to furnish such
cleaning service as is customary in similar buildings in
said city or town, all subject to interruption due to any
accident, to the making of repairs, alterations or
improvements, to labor difficulties, to trouble in
obtaining fuel, electricity, service, or supplies from the
sources from which they are usually obtained for said
building, or to any cause beyond the LANDLORD's control.
LANDLORD shall have no obligation to provide utilities or
equipment other than the utilities and equipment within
the leased premises as of the commencement date of this
lease. In the event TENANT requires additional utilities
or equipment, the installation and maintenance thereof
shall be the TENANT's sole obligation, provided that such
installation shall be subject to the written consent of
the LANDLORD.
9. USE OF LEASED The TENANT shall use the lease premises only for the
PREMISES purpose of ____________________________________________
(fill in) _______________________________________________________
_________________________________.
10. COMPLIANCE TENANT agrees to conform to the following provisions
WITH LAWS during the entire term of this lease: (i) TENANT shall
not injure or deface the leased premises or building: (ii)
No auction sale, inflammable fluids, chemicals, nuisance,
objectionable noise or odor shall be permitted on the
leased premises: (iii) TENANT shall not permit the use of
the leased premises for any purpose other than set forth
herein or any use thereof which is improper, offensive,
contrary to law or ordinance, or liable to invalidate or
increase the premiums for any insurance on the building or
its contents or liable to render necessary any alterations
or additions to the building; and (iv) TENANT shall not
obstruct in any manner any portion of the building not
hereby demised or the sidewalks or approaches to said
building or any inside or outside windows or doors. TENANT
shall observe and comply with all reasonable rules and
security regulations now or hereafter made by LANDLORD for
the care and use of the leased premises, the building, its
facilities and approaches. TENANT agrees to keep the
leased premises equipped with all safety appliances and
make all accessibility alterations, improvements or
installations to the building, and/or accommodations in
TENANT's use thereof required by law or any public
authority as a result of TENANT's use or occupancy of the
premises or TENANT's alterations or additions thereto,
which alterations, improvements and installations shall be
subject to LANDLORD's consent as provided in this lease.
11. MAINTENANCE TENANT acknowledges by entry thereupon that the leased
premises are in good and satisfactory order, repair and
A. TENANT'S condition, and covenants during said term and further time
OBLIGATIONS as the TENANT holds any part of said premises to keep the
leased premises in as good order, repair and condition as
the same are in at the commencement of said term, or may
be put in thereafter, damage by fire or unavoidable
casualty and reasonable use and wear only excepted.
Notwithstanding anything to the contrary herein, if TENANT
has leased ground floor space, TENANT covenants to keep
all plate glass windows in good repair and condition and
to carry adequate insurance to provide for the replacement
of any such plate glass which is damaged or destroyed.
B. LANDLORD'S The LANDLORD agrees to maintain and repair the roof,
OBLIGATIONS exterior walls and structure of the building of which the
leased premises are a part in the same condition as they
are at the commencement of the term or as it may be put in
during the term of this lease, reasonable
wear and tear, damage by fire and other casualty only
excepted, unless such maintenance or repair is made
necessary by fault or neglect of the TENANT or the
employees, contractors, agents or invitees of TENANT, in
which case such maintenance or repair shall be at the
expense of the TENANT and TENANT shall pay all costs
therefor.
12. ALTERATIONS- The TENANT shall not make any alterations or additions,
ADDITIONS or permit the making of any holes in any part of said
building, or paint or place any signs, drapes, curtains,
shades, awnings, aerials or flagpoles or the like, visible
from outside of the leased premises, that is, from
outdoors or from any corridor or other common area within
the building, or permit anyone except the TENANT to use
any part of the leased premises for desk space or for
mailing privileges without on each occasion obtaining
prior written consent of the LANDLORD. TENANT shall not
suffer or permit any lien of any nature or description to
be placed against the building, the premises or any
portion thereof, and in the case of any such lien
attaching by reason of the conduct of the TENANT to
immediately pay and remove the same; this provision shall
not be interpreted as meaning that the TENANT has any
authority or power to permit any lien of any nature or
description to attach to or be placed upon the LANDLORD's
title or interest in the building, the premises, or any
portion thereof.
13. ASSIGNMENT- The TENANT shall not by operation of law or otherwise,
SUBLEASING assign, mortgage or encumber this lease, or sublet or
(revise if permit the demised premises or any part thereof to
applicable) be used by others, without LANDLORD's prior express
written consent in each instance [which consent shall not
be unreasonably withheld] (cross out if not applicable).
In any case where LANDLORD shall consent to such
assignment or subletting, TENANT named herein shall remain
fully liable for the obligations of TENANT hereunder,
including, without limitation, the obligation to pay the
rent and other amounts provided under this lease. For
purposes of this lease, the sale of stock of a corporate
TENANT or the change of a general partner of a partnership
TENANT shall constitute an assignment of this lease.
14. SUBORDINATION This lease shall be subject and subordinate to any and
AND QUIET all mortgages, deeds of trust and other instruments
ENJOYMENT in the nature of a mortgage, now or at any time
hereafter a lien or liens on the property of which the
leased premises are a part and the TENANT shall, when
requested, promptly execute and deliver such written
instruments as shall be necessary to show the
subordination of this lease to said mortgages, deeds of
trust or other such instruments in the nature of a
mortgage. Provided the TENANT performs all of its
obligations under this lease, the TENANT shall be entitled
to the quiet enjoyment of the leased premises.
15. LANDLORD'S The LANDLORD or agents of the LANDLORD may, at all
ACCESS reasonable times during the term of this lease, enter
the leased premises (i) to examine the leased premises
and, if LANDLORD shall so elect, to make any repairs or
additions LANDLORD may deem necessary and, at TENANT's
expense, to remove any alterations, additions, signs,
drapes, curtains, shades, awnings, aerials or flagpoles,
or the like, not consented to in writing, (ii) to show the
leased premises to prospective purchasers and mortgagees,
and (iii) to show the leased premises to prospective
tenants during the six (6) months preceding the expiration
of this lease. LANDLORD also reserves the right at any
time within six (6) months before the expiration of this
lease to affix to any suitable part of the leased premises
a notice for letting or selling the leased premises or
property of which the leased premises are a part and to
keep the same so affixed without hindrance or molestation.
16. INDEMNIFI- TENANT will defend and, except to the extent caused by
CATION AND the gross negligence or willful conduct of LANDLORD, will
LIABILITY indemnify LANDLORD and its employees, agents and
management company, and save them harmless from any and
all injury, loss, claim, damage, liability and expense
(including reasonable attorneys' fees) in connection with
the occupancy or use by TENANT of the leased premises or
any part of LANDLORD's property or the building, or
occasioned wholly or in part by any act or omission of
TENANT, its contractors, subcontractors, subtenants,
licensees or concessionaires, or its or their respective
agents, servants or employees and any person or property
while on or about the leased premises. TENANT shall also
pay LANDLORD's expenses, including reasonable attorneys'
fees, incurred by LANDLORD in enforcing any obligation,
covenant or agreement of this lease. The provisions of
this paragraph shall survive the termination or earlier
expiration of the term of this lease. Without limitation
of any other provision herein, neither the LANDLORD, its
employees, agents nor management company shall be liable
for, and TENANT hereby releases them from all claims for,
any injuries to any person or damages to property or
business sustained by TENANT or any person claiming
through TENANT due to the building or any part thereof
(including the premises), or any appurtenances thereof,
being in need of repair or due to the happening of any
accident in or about the building or the leased premises
or due to any act or neglect of any tenant of the building
or of any employee or visitor of TENANT. Without
limitation, this provision shall apply to injuries and
damage caused by nature, rain, snow, ice, wind, frost,
water, steam, gas or odors in any form or by the bursting
or leaking of windows, doors, walls, ceilings, floors,
pipes, gutters, or other fixtures; and to damage caused to
fixtures, furniture, equipment and the like situated at
the leased premises, whether owned by the TENANT or
others.
17. TENANT'S TENANT shall (i) insure TENANT and LANDLORD, as their
LIABILITY interests appear, with general public liability
INSURANCE coverage on the leased premises, in such amounts and
(fill in) with such companies and against such risks as the
LANDLORD shall reasonably require and approve, but in
amounts not less than _________________________ Dollars
($______________________) combined single limit with
deductibles of not less than $5,000 per occurrence, and
(ii) insure LANDLORD and TENANT, as their interests
appear, against loss of the contents and improvements of
the leased premises under standard Maine form policies,
against fire and
standard extended coverage risks, in such amounts and with
such companies as the LANDLORD shall reasonably require
and approve, with waiver of subrogation if such waiver can
be obtained without charge. The TENANT shall deposit with
the LANDLORD certificates for such insurance at or prior
to the commencement of the term, and thereafter within
thirty (30) days prior to the expiration of any such
policies. All such insurance certificates shall provide
that such policies shall not be canceled without at least
thirty (30) days prior written notice to each assured
named therein.
18. FIRE Should a substantial portion of the leased premises,
CASUALTY- or of the property of which they are a part, be damaged
EMINENT by fire or other casualty, or be taken by eminent
DOMAIN domain, the LANDLORD may elect to terminate this lease.
When such fire, casualty, or taking renders the leased
premises unfit for use and occupation and the LANDLORD
does not so elect to terminate this lease, a just and
proportionate abatement of rent shall be made until the
leased premises, or in the case of a partial taking what
may remain thereof, shall have been put in proper
condition for use and occupation. LANDLORD reserves and
excepts all rights to damages to the leased premises and
building and the leasehold hereby created, accrued or
subsequently accruing by reason of anything lawfully done
in pursuance of any public, or other, authority; and by
way of confirmation, TENANT grants to LANDLORD all
TENANT's rights to such damages and covenants to execute
and deliver such further instruments of assignment thereof
as LANDLORD may from time to time request. LANDLORD shall
give TENANT notice of its decision to terminate this lease
or restore said premises within ninety (90) days after any
occurrence giving rise to LANDLORD's right to so terminate
or restore. Notwithstanding anything to the contrary,
LANDLORD's obligation to put the leased premises or the
building in proper condition for use and occupation shall
be limited to the amount of the proceeds from any
insurance policy or policies or of damages which accrue by
reason of any taking by a public or other authority, which
are available to LANDLORD for such use.
19. DEFAULT In the event that:
AND (a) The TENANT shall default in the payment of any
BANKRUPTCY installment of rent or other sum herein specified
when due which default is not corrected within
seven (7) days after written notice thereof; or
(b) The TENANT shall default in the observance or
performance of any other of the TENANT's covenants,
agreements, or obligations hereunder and such
default shall not be corrected within ten (10) days
after written notice thereof; or
(c) The leasehold hereby created shall be taken on
execution, or by other process of law; or
(d) Any assignment shall be made of TENANT's property
for the benefit of creditors, or a receiver,
guardian, conservator, trustee in bankruptcy
or similar officer shall be appointed by a court of
competent jurisdiction to take charge of all or any
part of TENANT's property, or a petition is filed
by TENANT under any bankruptcy, insolvency or other
debtor relief law,
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 shall be
entitled to all remedies available to LANDLORD at law and
equity, including without limitation, the remedy of
forcible entry and detainer, and LANDLORD lawfully may,
immediately or at any time thereafter, and without demand
or notice, mail a notice of termination to the TENANT, or
enter into and upon the leased premises or any part
thereof in the name of the whole and repossess the same as
of its former estate, and expel TENANT and those claiming
through or under it and remove it 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 such mailing or entry as aforesaid, this lease shall
terminate; and TENANT covenants and agrees,
notwithstanding any entry or re-entry by LANDLORD, whether
by summary proceedings, termination, or otherwise, that
TENANT shall, as of the date of such termination,
immediately be liable for and pay to LANDLORD the entire
unpaid rental and all other balances due under this Lease
for the remainder of the term. In addition, TENANT agrees
to pay to LANDLORD, as damages for any above described
breach, all costs of reletting the Leased Premises
including real estate commissions and costs of renovating
the Premises to suit any new tenant.
20. NOTICE Any notice from the LANDLORD to the TENANT relating to
the leased premises or to the occupancy thereof, shall be
deemed duly served, if left at the leased premises
addressed to the TENANT, or if mailed to the leased
premises, registered or certified mail, return receipt
requested, postage prepaid, addressed to the TENANT. Any
notice from the TENANT to the LANDLORD relating to the
leased premises or to the occupancy thereof, shall be
deemed duly served, if mailed to the LANDLORD by
registered or certified mail, return receipt requested,
postage prepaid, addressed to the LANDLORD at LANDLORD's
address set forth in Article 1, or at such other address
as the LANDLORD may from time to time advise in writing.
21. SURRENDER The TENANT shall at the expiration or other termination
of this lease peaceably yield up the leased premises and
all additions, alterations and improvements thereto in
good order, repair and condition, damage by fire,
unavoidable casualty and reasonable wear and tear only
excepted, first moving all goods and effects not attached
to the leased premises, repairing all damage caused by
such removal, and leaving the leased premises clean and
tenantable. If LANDLORD in writing permits TENANT to leave
any such goods and chattels at the leased premises, and
the TENANT does so, TENANT shall have no further claims
and rights in such goods and chattels as against the
LANDLORD or those claiming by, through or under the
LANDLORD.
22. HAZARDOUS TENANT covenants and agrees that, with respect to any
MATERIALS hazardous, toxic or special wastes, materials or
substances including asbestos, waste oil and petroleum
products (the "Hazardous Materials") which TENANT, its
agent or employees, may use, handle, store or generate in
the conduct of its business at the leased premises TENANT
will: (i) comply with all applicable laws, ordinances and
regulations which relate to the treatment, storage,
transportation and handling of the Hazardous Materials;
(ii) that TENANT will in no event permit or cause any
disposal of Hazardous Materials in, on or about the leased
premises and in particular will not deposit any Hazardous
Materials in, on or about the floor or in any drainage
system or in the trash containers which are customarily
used for the disposal of solid waste; (iii) that with
respect to any off-site disposal, shipment, storage,
recycling or transportation of any Hazardous Materials,
TENANT shall properly package the Hazardous Materials and
shall cause to be executed and duly filed and retain all
records required by federal, state or local law; (iv) that
TENANT will at all reasonable times permit LANDLORD or its
agents or employees to enter the leased premises to
inspect the same for compliance with the terms of this
paragraph and will further provide upon five (5) days
notice from LANDLORD copies of all records which TENANT
may be obligated to obtain and keep in accordance with the
terms of this paragraph; (v) that upon termination of this
lease, TENANT will, at its expense, remove all Hazardous
Materials from the leased premises and comply with
applicable state, local and federal laws as the same may
be amended from time to time; and (vi) TENANT further
agrees to deliver the leased premises to LANDLORD at the
termination of this lease free of all Hazardous Materials.
The terms used in this paragraph shall include, without
limitation, all substances, materials, etc., designated by
such terms under any laws, ordinances or regulations,
whether federal, state or local. TENANT further agrees to
hold harmless and indemnify LANDLORD for and against any
and all claims, loss, costs, damages and expenses,
including attorneys' fees, which may arise in the event
that TENANT fails to comply with any of the provisions
contained in this Article. The terms of this Article shall
expressly survive the expiration or earlier termination of
this lease.
23. LIMITATION TENANT agrees to look solely to LANDLORD's interest in
OF LIABILITY the building for recovery of any judgment from LANDLORD
it being agreed that LANDLORD is not personally liable for
any such judgment. The provision contained in the
foregoing sentence shall not limit any right that TENANT
might otherwise have to obtain an injunctive relief
against LANDLORD or LANDLORD's successors in interest, or
any other action not involving the personal liability of
LANDLORD.
24. LANDLORD LANDLORD shall in no event be in default in the
DEFAULT performance of any of its obligations hereunder unless and
until LANDLORD shall have failed to perform such
obligation within thirty (30) days or such additional time
as is reasonably required to correct any such default
after notice by the TENANT to the LANDLORD properly
specifying wherein the LANDLORD has failed to perform any
such obligation. Further, if the holder of the mortgage on
the building of which the leased premises are a part
notifies TENANT that such holder has taken over the
LANDLORD's rights under this lease, TENANT shall not
assert any right to deduct the cost of repairs or any
monetary claim against LANDLORD from rent thereafter due
and accruing, but shall look solely to the LANDLORD for
satisfaction of such claim.
25. WAIVER OF No consent or waiver, express or implied, by either
RIGHTS party to or of any breach of any covenant, condition or
duty of the other, shall be construed as a consent or
waiver to or of any other breach of the same or other
covenant, condition or duty.
26. SUCCESSORS The covenants and agreements of LANDLORD and TENANT
AND ASSIGNS shall run with the land and be binding upon and
inure to the benefit of them and their respective heirs,
executors, administrators, successors and assigns, but no
covenant or agreement of LANDLORD, express or implied,
shall be binding upon any person except for defaults
occurring during such person's period of ownership nor
binding individually upon any fiduciary, any shareholder
or any beneficiary under any trust.
27. HOLDOVER If TENANT fails to vacate the leased premises at the
termination of this lease, then the terms of this lease
shall be applicable during said holdover period, except
for base rent, which shall be increased to two (2) times
the then current base rent for the period just preceding
such termination; but this provision shall not be
interpreted as consent or permission by the LANDLORD for
TENANT to holdover at the termination of this lease and
terms of this holdover provision shall not preclude
LANDLORD from recovering any other damages which it incurs
as a result of TENANT's failure to vacate the leased
premises at the termination of the lease.
28. MISCELLANEOUS If TENANT is more than one person or party, TENANT's
obligations shall be joint and several. Unless repugnant
to the context, "LANDLORD" and "TENANT" mean the person or
persons, natural or corporate, named above as LANDLORD and
TENANT respectively, and their respective heirs,
executors, administrators, successors and assigns.
LANDLORD and TENANT agree that this lease shall not be
recordable but each party hereto agrees, on request of the
other, to execute a Memorandum of Lease in recordable form
and mutually satisfactory to the parties. If any provision
of this lease or its application to any person or
circumstances shall to any extent be invalid or
unenforceable, the remainder of this lease or the
application of such provision to persons or circumstances
other than those as to which it is invalid or
unenforceable, shall not be affected thereby and
each provision of this lease shall be valid and
enforceable to the fullest extent permitted by law. The
submission of this lease or a summary of some or all of
its provisions for examination by TENANT does not
constitute a reservation of or option for the premises or
an offer to lease said premises, and this document shall
become effective and binding only upon the execution and
delivery hereof by both LANDLORD and TENANT. Employees or
agents of LANDLORD have not authority to make or agree to
make a lease or any other agreement or undertaking in
connection herewith. All negotiations, considerations,
representations and understandings between LANDLORD and
TENANT are incorporated herein and no prior agreements or
understandings, written or oral, shall be effective for
any purpose. No provision of this Lease may be modified or
altered except by agreement in writing between LANDLORD
and TENANT, and not act or omission of any employee or
agent of LANDLORD shall alter, change, or modify any of
the provisions hereof. This lease shall be governed
exclusively by the provisions hereof and by the laws of
the State of Maine. The headings herein contained are for
convenience only, and shall not be considered a part of
this lease.
29. BROKERAGE TENANT warrants and represents to LANDLORD that it has
(fill in) not dealt with any broker, finder or similar person
concerning the leasing of the leased premises, other than
__________________________ ("BROKER"), and in the event
of any brokerage claim against LANDLORD predicated upon
dealings with TENANT other than by the BROKER, TENANT
agrees to defend the same and indemnify LANDLORD against
any such claim. LANDLORD agrees to pay the BROKER its
commission upon execution of this lease.
30. OTHER It is also understood and agreed that:
PROVISIONS
(fill in or
delete)
DISCLAIMER: THIS IS A LEGAL DOCUMENT.
IF NOT FULLY UNDERSTOOD, CONSULT AN ATTORNEY.
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals this
____________ day of ________________, 19 ___.
TENANT: LANDLORD:
__________________________________ __________________________________
Legal Name of Tenant Legal Name of Landlord
__________________________________ __________________________________
Signature Signature
__________________________________ __________________________________
Name/Title Name/Title
__________________________________ __________________________________
Witness to Tenant Witness to Landlord
GUARANTY For value received, and in consideration for, and as an
(fill in inducement to LANDLORD to enter into the foregoing
or delete) lease with TENANT, _______________________ ("GUARANTOR")
does hereby unconditionally guaranty to LANDLORD the
complete and due performance of each and every agreement,
covenant, term and condition of the Lease to be performed
by TENANT, including without limitation the payment of all
sums of money stated in the lease to be payable by TENANT.
The validity of this guaranty and the obligation of the
GUARANTOR hereunder shall not be terminated, affected, or
impaired by reason of the granting by LANDLORD of any
indulgences to TENANT. This guaranty shall remain and
continue in full force and effect as to any renewal,
modification, or extension of the lease, whether or not
GUARANTOR shall have received any notice of or consented
to such renewal, modification or extension. The liability
of GUARANTOR under this guaranty shall be primary, and in
any right of action which shall accrue to LANDLORD under
the lease, LANDLORD may proceed against GUARANTOR and
TENANT, jointly or severally, and may proceed against
GUARANTOR without having commenced any action against or
having obtained any judgment against TENANT. All of the
terms and provisions of this guaranty shall inure to the
benefit of the successors and assigns of LANDLORD and
shall be binding upon the successors and assigns of
GUARANTOR.
IN WITNESS WHEREOF, GUARANTOR has executed this Guaranty this _____________
day of _______________, 19 ___.
GUARANTOR:
___________________________________
Legal Name of Guarantor
___________________________________ ________________________________
Signature Witness to Guarantor
___________________________________
Name/Title