TABLE OF CONTENTS
TO
LEASE BETWEEN
THE FIVE JAYS REALTY TRUST
AND IPSWICH SAVINGS BANK
Page
ARTICLE I - GRANT AND TERM
Section 1.01 - Leased Premises 1
Section 1.02 - Use of Additional Areas 1
Section 1.03 - Commencement and Ending Date of Term 1
Section 1.04 - Lease Year Defined 1
Section 1.05 - Excuse of Owner's Performance 2
ARTICLE II - RENT
Section 2.01 - Minimum Rent 2
Section 2.02 - Taxes 2
Section 2.03 - Additional Rent 3
Section 2.04 - Past Due Rent and Additional Rent 3
ARTICLE III - CONSTRUCTION, ALTERATION, RELOCATION AND FINANCING
OF IMPROVEMENTS AND ADDITIONS THERETO
Section 3.01 - Parking Facilities 3
Section 3.02 - Changes and Additions to Buildings 3
ARTICLE IV - CONDUCT OF BUSINESS BY TENANT
Section 4.01 - Use of Premises 4
ARTICLE V - PARKING AND COMMON USE AREAS AND FACILITIES
Section 5.01 - Control of Common Areas by Owner 4
ARTICLE VI - COST OF MAINTENANCE OF COMMON AREAS
Section 6.01 - 5
Section 6.02 - 5
ARTICLE VII - SIGNS, AWNINGS, CANOPIES, FIXTURES, ALTERATIONS
Section 7.01 - Installation by Tenant 6
Section 7.02 - Removal and Restoration 6
Section 7.03 - Tenant Shall Discharge All Liens 6
Section 7.04 - Signs, Awnings and Canopies 6
ARTICLE VIII - MAINTENANCE 0F LEASED PREMISES
Section 8.01 - Maintenance by Tenant 6
Section 8.02 - Maintenance by Owner 7
Section 8.03 - Surrender of Premises 7
ARTICLE IX - INSURANCE AND INDEMNITY
Section 9.01 - Public Liability, Property Damage, Plate Glass Insurance
Section 9.02 - Insurance of Tenant's Fixtures 7
Section 9.03 - Hold Harmless 8
Section 9.04 - Fire and Extended Coverage Insurance 8
ARTICLE X - UTILITIES 8
Section 10.01 - Utility Charges 9
ARTICLE XI - OFFSET STATEMENT, ATTORNMENT, SUBORDINATION 9
Section 11.01 - Offset Statement 9
Section 11.02 - Attornment 10
Section 11.03 - Subordination 10
Section 11.04 - Attorney-In-Fact 10
ARTICLE XII - ASSIGNMENT AND SUBLETTING
Section 12.01 - 10
ARTICLE XIII - WASTE, GOVERNMENTAL REGULATIONS
Section 13.01 - Waste or Nuisance 11
Section 13.02 - Governmental Regulations 11
ARTICLE XIV - ADVERTISING, MERCHANTS ASSOCIATION
Section 14.01 - Solicitation of Business 11
ARTICLE XV - EMINENT DOMAIN
Section 15.01 - Total Condemnation of Premises 11
Section 15.02 - Partial Condemnation 11
Section 15.03 - Total Condemnation of Parking Area 12
Section 15.04 - Partial Condemnation of Parking Areas 12
Section 15.05 - Owner's Damages 12
Section 15.06 - Tenant's Damages 12
Section 15.07 - Condemnation of Less Than a Fee 13
ARTICLE XVI - DEFAULT OF THE TENANT
Section 16.01 - Right to Re-Enter 13
Section 16.02 - Right to Re-Let 13
Section 16.03 - Legal Expenses 14
Section 16.04 - Waiver of Jury Trial and Counterclaim 14
Section 16.05 - Waiver of Rights and Redemption 14
ARTICLE XVII - TENANT'S PROPERTY
Section 17.01 - Taxes on Leasehold 15
Section 17.02 - Loss and Damage 15
Section 17.03 - Notice by Tenant 15
ARTICLE XVIII - HOLDING OVER, SUCCESSORS
Section 18.01 - Holding Over 15
Section 18.02 - Successors 15
ARTICLE XIX - QUIET ENJOYMENT
Section 19.01 - Owner's Covenant 16
ARTICLE XX - MISCELLANEOUS
Section 20.01 - Waiver 16
Section 2O.02 - Accord and Satisfaction 16
Section 2O.03 - Entire Agreement 16
Section 20.04 - No Partnership 16
Section 20.05 - Force Majeur 16
Section 20.06 - Notices 17
Section 20.07 - Captions and Section Numbers 17
Section 20.08 - Tenant Defined, Use of Pronouns 17
Section 20.09 - Broker's Commission 17
Section 20.10 - Partial Invalidity 17
Section 20.11 - Condominium Conversion - Right of First Refusal 17
Section 20.12 - Recording 17
Section 20.13 - Outstanding Mortgage Loan on Shopping Center -
Covenant of Quiet Enjoyment in the Event of
Financing 18
THIS INDENTURE OF LEASE, made on the 31st day of July, 1992 by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
TRUSTEE OF FIVE JAYS REALTY TRUST, under declaration of Trust dated January 9,
1985, recorded at Essex South District Registry of Deeds, Book 7635, Page 293,
herein called "Owner", and the IPSWICH SAVINGS BANK, a Massachusetts banking
corporation, having a regular and usual place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, herein called "Tenant."
WITNESSETH:
ARTICLE I
GRANT AND TERM
SECTION 1.01. LEASED PREMISES
In consideration of the rents, covenants and agreements hereinafter reserved and
contained on the part of Tenant to be observed and performed, the Owner demises
and leases to the Tenant, and Tenant rents from Owner, those certain premises,
now or hereafter to be erected in the Rowley Mini Mall Shopping Center (herein
called the "Shopping Center") in Rowley, Essex County, Massachusetts, which
premises consist of a store and basement, each containing an area of
approximately 1,650 square feet, herein called the "leased premises". The
boundaries and location of the leased premises are designated "Unit #2." Owner
agrees not to obstruct or interfere with Tenant's usage of the drive-in lanes
and the canopy attached to the leased premises.
SECTION 1.02. USE OF ADDITIONAL AREAS
The use and occupation by the Tenant of the leased premises shall include the
use in common with others entitled thereto of the common areas, employees'
parking areas, service roads, loading facilities, sidewalks and customer car
parking areas, and other facilities as may be designated from time to time by
the Owner, subject however to the terms and conditions of this agreement and to
reasonable rules and regulations for the use thereof as prescribed from time to
time by the Owner.
SECTION 1.03. COMMENCEMENT AND ENDING DATE OF TERM
The term of this lease and Tenant's obligation to pay rent hereunder shall
commence on August 1, 1992. The term of this lease shall end on the last day of
the eight (8th) consecutive full lease year as said term "lease year" is
hereinafter defined. Tenant shall have the option to renew the within lease for
three five-year terms, each at the then fair market rental value of the Leased
Premises commencing at the end of the term and at the end of each renewal
period. In the event that the Owner and the Tenant can not agree on the "then
fair market rental value" at the end of any term, the following procedure shall
be utilized: the Owner shall select one qualified real estate appraiser; the
Tenant shall select one qualified real estate appraiser, the two appraisers
shall select a third qualified real estate appraiser; the three appraisers so
selected shall, by majority vote, determine the then fair market rental value of
the Leased Premises in accordance with the application of the economic
provisions of this Lease. The Owner and the Tenant shall be bound by the
determination of the appraisers for the duration of the renewal term then
commenced.
SECTION 1.04. LEASE YEAR DEFINED
The term "lease year" as used herein shall mean a period of twelve (12)
consecutive full calendar months. The first lease year shall begin on the date
of commencement of the term hereof if the date of commencement of the term
hereof shall occur on the first day of a calendar month; if not, then the first
lease year shall commence upon the first day of the calendar month next
following the date of commencement of the term hereof. Each succeeding lease
year shall commence upon the anniversary date of the first lease year.
SECTION 1.05. EXCUSE OF OWNER'S PERFORMANCE
Anything 1n this agreement to the contrary notwithstanding, providing such cause
is not due to the willful act or neglect of the Owner, the Owner shall not be
deemed in default with respect to the performance of any of the terms,
covenants, and conditions of this lease if same shall be due to any strike,
lockout, civil commotion, war-like operation, invasion, rebellion, hostilities,
military or usurped power, sabotage, governmental regulations or controls,
inability to obtain any material, service or financing, through Act of God or
other cause beyond the control of the Owner.
ARTICLE II
RENT
SECTION 2.01. MINIMUM RENT
Tenant agrees to pay to Owner at the office of Owner, or at such other place
designated by Owner, without any prior demand therefor and without any deduction
or set-off whatsoever, and as fixed minimum rent: (a) The sum of $1,900.00 in
advance upon the first day of each calendar month for the first four years of
the lease and will then increase to $2,200 per month for the remaining four
years of the lease. If the term shall commence upon a day other than the first
day of a calendar month, then Tenant shall pay, upon the commencement date of
the term, a pro-rata portion of the fixed monthly rent described in the
foregoing clause (a) prorated on a per diem basis with respect to the fractional
calendar month preceding the commencement of the first lease year hereof.
SECTION 2.02. TAXES
(A) For each municipal fiscal year, commencing with Fiscal Year 1993, included
within the term, or renewals, of this Lease, Tenant shall pay Owner as
additional rent the Tenants' actual assessment per the annual tax ▇▇▇▇ assessed
upon the Leased Premises (as described in Section 1.01) are located, within
thirty (30) days of notice from Owner. The expression "real estate taxes" shall
include betterments, assessments, taxes upon gross rents, and any other taxes
which upon assessment or failure of payment become a lien upon the real estate
with respect to which they are assessed. In the event that any interest and/or
penalties are chargeable to Owner by any taxing authority for failure to pay, or
late payment, by Owner, Tenant shall pay Owner the same amounts to Owner if
Tenant does not pay Owner such additional rents before Owner must pay the
applicable taxes to the applicable taxing authority.
(B) The real estate taxes upon the Shopping Center for any tax year shall mean
such amounts as shall be finally determined to be the real estate taxes payable
with respect to the Shopping Center for said tax year, that is, the real estate
taxes assessed against the Shopping Center for said tax year less any
abatements, refunds or rebates made thereof. For the purpose of determining
payments due from Tenant to Owner in accordance with the provisions of this
Article (i) the real estate taxes upon the Shopping Center for any tax year
shall be deemed to be the real estate taxes assessed for said year until such
time as an abatement, refund or rebate shall be made thereof; and (ii) if any
abatement, refund or rebate shall be made for any tax year, an appropriate
adjustment shall be made in the amount payable from or paid by Tenant to Owner
on account of real estate taxes.
(C) Tenant shall pay all taxes allocable to its leasehold interests and its
signs and other property in or upon the demised premises. Tenant shall also pay
all taxes allocable to any improvements made by Tenant to the demised premises.
For the purpose of this Article, such taxes shall not be included within real
estate taxes upon the Shopping Center.
SECTION 2.03. ADDITIONAL RENT
The Tenant shall pay as additional rent any money required to be paid pursuant
to Sections 2.02, 6.02, 8.01, 8.02, 9.03, 9.04 and 10.01, and all other sums of
money or charges required to be paid by Tenant under this lease, whether or not
the same be designated "additional rent". If such amounts are not paid at the
time provided in this lease, they shall nevertheless, if not paid when due, be
collectible as additional rent with the next installment of rent thereafter
falling due hereunder, but nothing herein contained shall be deemed to suspend
or delay the payment of any amount of money or charge at the time the same
becomes due and payable hereunder, or limit any other remedy of the Owner.
SECTION 2.04. PAST DUE RENT AND ADDITIONAL RENT
If Tenant shall fail to pay, when the same is due and payable, any rent or any
additional rent, or amounts or charges of the character described in Section
2.03 hereof, and if such amounts remain unpaid for a fifteen-day period, such
unpaid amounts shall bear interest from the due date thereof to the date of
payment at the rate of eighteen (18%) percent per annum, subject to the
provisions of Section 16.01, and the time periods set forth herein.
ARTICLE III
CONSTUCTION, ALTERATION, RELOCATION, AND FINANCING OF
IMPROVEMENTS AND ADDITIONS THERETO
SECTION 3.01. PARKING FACILITIES
The Owner has constructed upon the Shopping Center site at its own cost access
roads, sidewalks, parking lots, and other facilities. Owner has striped the
parking lot and identified the access roads to the Tenant's drive-in window.
Tenant shall have equal rights with all other tenants of the Shopping Center to
use all of the parking spaces. In the event that Owner exercises its rights
under Section 3.0Z to alter and/or enlarge the Shopping Center, Owner agrees to
continue to provide to Tenant approximately nineteen (19) parking spaces within
the same approximate radium of the Leased Premises as are presently located the
nineteen (19) parking spaces closest to the Leased Premises.
SECTION 3.02. CHANGES AND ADDITIONS TO BUILDINGS
Owner hereby reserves the right at any time to make alterations or additions or
and to build additional stories on the building in which the premises are
contained and to build adjoining the same. Owner also reserves the right to
construct other buildings or improvements in the Shopping Center from time to
time and to make alterations thereof or additions thereto and to build
additional stories on any such building or buildings and to build adjoining the
same and to construct double-deck or elevated parking facilities. In the event
Owner makes such additions to the Shopping Center, Owner agrees that Tenant
shall have the right to reasonably adequate parking facilities, as determined by
Tenant's existing parking facilities.
ARTICLE IV
CONDUCT OF BUSINESS BY TENANT
SECTION 4.01. USE OF PREMISES
Tenant shall use the leased premises solely for the purpose of conducting the
business of retail banking, financing, and related operations and functions,
including, but not limited to, the sale of real estate, securities, data
processing, insurance, general business services, mortgage brokering and
provision of mortgages, and real estate brokerage. Tenant shall occupy the
leased premises within thirty (30) days after the date of the notice provided
for in Section 1.03 hereof, and shall conduct continuously in the leased
premises the business above stated. Tenant will not use or permit, or suffer the
use of, the leased premises for any other business or purpose. Tenant shall not
conduct catalogue sales in or from the leased premises except of merchandise
which Tenant is permitted to sell "over the counter" in or at the leased
premises pursuant to the provisions of this Section 4.01.
ARTICLE V
PARKING AND COMMON USE AREAS AND FACILITIES
SECTION 5.01. CONTROL OF COMMON AREAS BY OWNER
All automobile parking areas, driveways, entrances and exits thereto, and other
facilities furnished by Owner in or near the Shopping Center, including employee
parking areas, the truck way or ways, loading docks, package pick-up stations,
pedestrian sidewalks and ramps, landscaped areas, exterior stairways, first-aid
stations, comfort stations and other areas and improvements provided by Owner
for the general use, in common, of tenants, their officers, agents, employees
and customers, shall at all times be subject to the exclusive control and
management of Owner, and Owner shall have the right from time to time to
establish, modify and enforce reasonable rules and regulations with respect to
all facilities and areas mentioned in this Article. Owner shall have the right
to construct, maintain and operate lighting facilities on all said areas and
improvements; to police the same; from time to time to change the area, level,
location and arrangement of parking areas and other facilities hereinabove
referred to; to restrict parking by tenants, their officers, agents and
employees to employee parking areas; to close all or any portion of said areas
or facilities to such extent as may, in the opinion of Owner's counsel, be
legally sufficient to prevent a dedication thereof or the accrual of any rights
to any person or to the public therein; to discourage non-customer parking and
to do and perform such other acts in and to said areas and improvements as, in
the use of good business judgment, the Owner shall determine to be advisable
with a view to the improvement of the convenience and use thereof by Tenants,
their officers, agents, employees and customers. Owner will operate and maintain
the common facilities referred to above in such manner as Owner, in its sole
discretion, shall determine from time to time. Without limiting the scope of
such discretion, Owner shall have the full right and authority to employ all
personnel and to make all rules and regulations pertaining to and necessary for
the proper operation and maintenance of the common areas and facilities.
ARTICLE VI
COST OF MAINTENANCE OF COMMON AREAS
SECTION 6.01
Owner agrees to hard-surface, ▇▇▇▇, properly drain, adequately light, and
landscape the parking areas, together with the necessary access roads, within
the limits of the property. Owner agrees to operate, manage, and maintain during
the term of this Lease all parking areas, roads, and accommodation areas within
the Center. The manner in which such areas and facilities shall be maintained.
and the expenditures therefor, shall be at the sole discretion of owner, and the
use of such areas and facilities shall be subject to such reasonable regulations
as Owner shall make from time to time.
SECTION 6.02
Commencing on August 1, 1992, Tenant agrees to pay, upon demand, but not more
often than once a year, in addition to the Minimum Rent (as set forth in Section
2.01) Sixteen and 6/10 (16.6) Percentum of any increase in the costs and
expenses of Owner of maintaining and operating the parking areas, accommodations
areas, delivery systems, and all other common areas, in excess of such costs and
expenses for the immediately preceding twelve (12) month period (i.e., August 1,
1991 to July 31, 1992, the first lease year). Such operating and maintenance
costs shall include all reasonable costs and expenses of operating and
maintaining such areas and facilities in such manner as Owner may, from time to
time, deem appropriate and for the best interests of the Tenants of the Shopping
Center, including without limitation, providing private police protection,
security patrol, or night watchmen for the Shopping Center, labor, compensation
insurance, payroll taxes, materials, supplies, and all other costs of operating,
repairing, lighting, heating, air conditioning, cleaning, sweeping, painting,
removing of rubbish or debris, policing, inspecting, and all casualty and such
other insurance in such amounts and covering hazards deemed appropriate by
Owner, and all costs other than those which are properly charged to capital
account under generally accepted accounting principles, of replacement of
paving, curbs, walkways remarking, directional or other signs, landscaping,
drainage, and lighting facilities, and the cost to Owner of obtaining
supervisory services for and maintaining the fire sprinkler system(s). There
shall be excluded the cost of construction of improvements to such common areas
which are properly charged to capital account and depreciation of the original
costs of construction of such common areas. In the event that the Shopping
Center is expanded, appropriate adjustments shall be made in common area charges
to include the expanded area(s). Tenant's share of such costs and expenses of
maintaining and operating such common areas may be estimated by Owner subject to
adjustment in future billing to Tenant. Such operating and maintenance costs
shall be computed on an accrual basis under generally accepted accounting
principles. On or before September 1st of each year, Owner shall determine (and
furnish to Tenant a statement showing in reasonable detail) the costs and
expenses of maintaining such areas referred to in this Section during the
preceding year, ending July 31st. To the extent Tenant's proportionate share of
the increase over the preceding year of such costs and expenses is greater or
less than the sum actually billed to and paid by Tenant therefor, as the case
may be, during said year, the difference shall be billed or refunded to Tenant,
as the case may be.
ARTICLE VII
SIGNS, AWNINGS, CANOPIES, FIXTURES, ALTERATIONS
SECTION 7.01. INSTALLATION BY TENANT
All fixtures installed by Tenant shall be new or completely reconditioned.
Tenant shall not make or cause to be made any alterations, additions or
improvements or install or cause to be installed any trade fixtures, exterior
signs, floor covering, interior or exterior lighting, plumbing fixtures, shades
or awnings or make any changes to the store front without first obtaining
Owner's written approval and consent. Tenant shall present to the Owner plans
and specifications for such work at the time approval is sought. Such approval
and consent shall not be unreasonably withheld by Owner.
SECTION 7.02. REMOVAL AND RESTORATION BY TENANT
All alterations, decorations, additions and improvements made by the Tenant, or
made by the Owner on the Tenant's behalf by agreement under this lease, shall
remain the property of the Tenant for the term of this lease, or any extension
or renewal thereof. Such alterations, decorations, additions and improvements
shall not be removed from the premises prior to the end of the term hereof
without prior consent in writing from the Owner. Upon expiration of this lease,
or any renewal term thereof, the Tenant shall remove all such alterations,
decorations, additions and improvements and restore the leased premises as
provided in Section 8.03 hereof. If the Tenant fails to remove such alterations,
decorations, additions and improvements and restore the leased premises, then
upon the expiration of this lease, or any renewal thereof, and upon the Tenant's
removal from the premises, all such alterations, decorations, additions and
improvements shall become the property of the Owner.
SECTION 7.03. TENANT SHALL DISCHARGE ALL LIENS
Tenant shall promptly pay all contractors and materialmen, so as to minimize the
possibility of a lien attaching to the leased premises, and should any such lien
be made or filed, Tenant shall bond against or discharge the same within ten
(10) days after written request by Owner.
SECTION 7.04. SIGNS, AWNINGS AND CANOPIES
Tenant will not place or suffer to be placed or maintained on any exterior door,
wall or window of the leased premises any sign, awning or canopy, or advertising
matter or other thing of any kind, and will not place or maintain any
decoration, lettering or advertising matter on the glass of any window or door
of the leased premises without first obtaining Owner's written approval and
consent. Tenant further agrees to maintain such sign, awning, canopy,
decoration, lettering, advertising matter or other thing as may be approved in
good condition and repair at all times. Such approval and consent shall not be
unreasonably withheld by Owner.
ARTICLE VIII
MAINTENANCE OF LEASED PREMISES
SECTION 8.01. MAINTENANCE BY TENANT
Tenant shall, at all times, maintain the demised premises (including all
exterior entrances and the inside and outside of all glass in the doors and
windows and show window moldings) and all partitions, doors and window frames,
fixtures, equipment and appurtenances thereto (including, but not limited to,
all electrical plumbing fixtures, heating, air-conditioning and other mechanical
installations therein) in good order, condition, and normal repair at its own
expense. In the event that the heating or air conditioning installation on the
Leased premises require major repairs or entire replacement, the costs of such
repair or replacements shall be paid by the Owner. The Owner shall be
responsible for the plowing of snow and contorl of ice in the parking lot; the
Tenant shll be responsible for the removal of snow and the control of ice on the
sidewalks abutting the Leased Premises.
SECTION 8.02. MAINTENANCE BY OWNER
If Tenant refuses or neglects to repair property as required hereunder and to
the reasonable satisfaction of Owner as soon as reasonably possible after
written demand, Owner may make such repairs without liability to Tenant for any
loss or damage that may accrue to Tenant's merchandise, fixtures, or other
property or to Tenant's business by reason thereof, and upon completion thereof,
Tenant shall pay Owner's costs for making such repairs, upon presentation of
▇▇▇▇ therefor, as additional rent.
SECTION 8.03. SURRENDER OF PREMISES
At the expiration of the tenancy hereby created, Tenant shall surrender the
leased premises in the same condition as the leased premises were in upon
delivery of possession thereto under this lease, reasonable wear and tear
excepted, and damage by unavoidable casualty excepted, and shall surrender all
keys for the leased premises to Owner at the place then fixed for the payment of
rent and shall inform Owner of all combinations on locks, safes, and vaults, if
any, in the leased premises. Tenant shall re!move all of its trade fixtures, and
any alterations or improvements as provided in Section 7.02 hereof, before
surrendering the premises as aforesaid and shall repair any damage to the leased
premises caused thereby. Tenant's obligations to observe or perform this
covenant shall survive the expiration or other termination of the terms of this
lease.
ARTICLE IX
INSURANCE AND INDEMNITY
SECTION 9.01. PUBLIC LIABILITY, PROPERTY DAMAGE, PLATE GLASS INSURANCE
Tenant agrees, at its own expense, to maintain in full force during the leased
term a policy or policies or comprehensive liability insurance, including
property damage, written by one or more responsible insurance companies licensed
to do business in Massachusetts, which will insure Tenant and Owner (and such
other persons, firms or corporations as are designated by Owner) against
liability for injury to persons and/or property and death of any person or
persons occurring in or about the premises. Each such policy shall be approved
as to form and insurance company by Owner. The liability under such insurance
shall not be less than $300,000.00 for any one person injured or killed, and not
less than $500,000.00 for any one accident and not less than $50,000.00 property
damage. If, in the considered opinion of Owner's insurance advisor, the amount
of such coverage is not adequate, Tenant agrees to increase said coverage to
such reasonable amounts as Owner's advisor shall deem adequate. Tenant shall
also maintain and keep in force plate glass insurance coverage on all exterior
plate glass in the premises. The insurance in this subparagraph provided may be
covered by general policies covering all of-Tenant's stores. Tenant shall
provide Owner with copies of certificates of all said policies including an
endorsement which states that such insurance shall not be cancelled after thirty
(3O) days' notice in writing to Owner.
SECTION 9.02. INSURANCE OF TENANT'S FIXTURES
Tenant agrees that 1t will at all times during the leased term maintain in force
on all its fixtures and equipment in the premises a policy or policies of fire
insurance with a standard extended coverage endorsement attached to the extent
of at least eighty per cent (80%) of their insurable value, the proceeds of
which will, so long as this lease is in effect, be used for the repair or
replacement of the fixtures and equipment so insured. It is understood that
Owner shall have no interest in the insurance upon Tenant's equipment and
fixtures, and will sign all documents necessary or proper in connection with the
settlement of any claim or loss by Tenant. Tenant shall have the right, at its
sole option, to self-insure its fixtures and equipment.
SECTION 9.03. HOLD HARMLESS
Tenant will indemnify Owner and save it harmless from and against any and all
claims, actions, damages, liability and expense in connection with loss of life,
personal injury and/or damage to property arising from or out of any occurrence
in, upon or at the demised premises or from the occupancy or use by Tenant of
the demised premises or any part thereof, or occasioned wholly or in any part by
any act or omission of Tenant, its agents, contractors, employees, servants,
lessees, or concessionaires, unless said claims are caused by negligence of the
Owner. In case Owner shall, without fault on its part, be made a party to any
litigation commenced by or against Tenant, then Tenant shall protect and hold
Owner harmless and shall pay all costs, expenses and reasonable attorney fees
incurred or paid by Owner in connection with such litigation. Tenant shall also
pay all costs, expenses and reasonable attorney fees that may be incurred or
paid by Owner in enforcing the covenants and agreements of this lease. Owner
shall indemnify Tenant and save it harmless from and against any and all claims,
actions, damages, etc. arising from or out of any occurrence in or upon the
common areas of the Shopping Center.
SECTION 9.04. FIRE AND EXTENDED COVERAGE INSURANCE
(A) In case the premises shall be partially or totally destroyed by fire or
other casualty insurable under full standard extended risk insurance as to
become partially or totally untenantable, the same shall be repaired as speedily
as possible at the expense of Owner, unless Owner shall not elect to rebuild as
hereinafter provided, and (should there be a substantial interference with
Tenant's business) a just and proportionate part of the fixed rent shall be
abated until so repaired.
(B) If less than Fifty (50%) Percent of the building in which the Leased
Premises (as described in Section 1.01) are located shall be destroyed or
damaged by fire or other casualty as to become wholly untenantable, then, in
such event, Owner must rebuild or put said building in good condition and fit
for occupancy, within a reasonable time after such destruction or damage, unless
Tenant releases in writing Owner from such obligation.
(C) If more than Fifty (50%) Percent of the building in which the premises are
located shall be destroyed or so damaged by fire, or other casualty insurable
under full standard extended risk insurance, as to become wholly untenantable or
in the event the premises shall be partially or totally destroyed by a cause or
casualty other than those covered by fire and extended coverage risk insurance
then, in any such event, Owner may, if it so elects, rebuild or put said
building in good condition and fit for occupancy, within a reasonable time after
such destruction or damage, or may give notice in writing terminating this lease
as of a date not later than ninety (90) days after any such damage or
destruction. If Owner elects to repair or rebuild said building, it shall,
within ninety (90) days after such injury, give the Tenant notice of its
intention to
repair and then to proceed with reasonable speed to make such repairs. Unless
Owner elects to terminate this lease, this lease shall remain in full force and
effect and the parties waive the provisions of any law to the contrary,
(D) Owner's obligation (should it elect or be obligated to repair or rebuild)
shall be limited to the basic building, store front, and interior work as
covered by Description of Owner's Work, attached hereto, and Tenant shall
forthwith replace or fully repair all exterior signs, trade fixtures, equipment,
display cases and other installations originally installed by Tenant at its
expense.
(E) In addition to the insurance which Tenant is required to maintain pursuant
to Article IX of this lease, for each municipal fiscal year commencing with
Fiscal Year 1993, included within the term or renewals of this lease, Tenant
shall pay to Owner as additional rent Sixteen and 6/10 (16.6%) percentum of the
total premium paid by Owner for fire insurance (including the so-called
"extended coverage endorsement") rent insurance, and comprehensive public
liability upon Owner's buildings and improvements in the center in excess of the
premiums paid by Owner during municipal fiscal year 1992. The amount of fire
insurance to be maintained by Owner shall be not less than eighty (80%) percent
and not more than one hundred (100%) percent of the actual cash value of Owner's
buildings and improvements in the center as such value may exist from time to
time. Tenant shall be required to reimburse Owner for Tenant's share of such
insurance not more frequently than quarterly. With respect to any insurance
effective for a term extending beyond the term of Tenant's lease, Tenant shall
be obligated to pay only such proportion of Tenant's share of the premium as
that portion of the term of the policy lapsing prior to the expiration of the
term of Tenant's lease bears to the entire term of the policy.
ARTICLE X
UTILITIES
SECTION 10.1. UTILITY CHARGES
Tenant shall be solely responsible for and promptly pay all charges for heat,
gas, electricity, or any other utility used or consumed in the leased premises.
Should Owner elect to supply the gas, heat, electricity or any other utility
used or consumed in the leased premises, Tenant agrees to purchase and pay for
the same as additional rent at the applicable rates filed by the Owner with the
proper regulatory authority. In no event shall Owner be liable for an
interruption or failure in the supply of any such utilities to the leased
premises.
ARTICLE XI
OFFSET STATEMENT, ATTORNMENT, SUBORDINATION
SECTION 11.01. OFFSET STATEMENT
Within ten days after request therefor by Owner, or in the event that upon any
sale, assignment or hypothecation of the leased premises and/or the land
thereunder by Owner an offset statement shall be required from Tenant; Tenant
agrees to deliver in recordable form a certificate to any proposed mortgagee or
purchaser, or to Owner, certifying (if such be the case) that this lease is in
full force and effect and that there are no defenses or offsets thereto, or
stating those claimed by Tenant.
SECTION 11.02. ATTORNMENT
Tenant shall, in the event any proceedings are brought for the foreclosure of,
or in the event of exercise of the power of sale under any mortgage made by the
Owner covering the leased premises, attorn to the purchaser upon any such
foreclosure or sale and recognize such purchaser as the Owner under this lease.
SECTION 11.03. SUBORDINATION
Upon request of the Owner, Tenant will subordinate its rights hereunder to the
lien of any mortgage or mortgages, or the lien resulting from any other method
of financing or refinancing, now or hereafter in force against the land and/or
buildings of which the leased premises are a part or against any buildings
hereafter placed upon the land of which the leased premises are a part, and to
all advances made or hereafter to be made upon the security thereof. Tenant
shall have the right to record a Notice of Lease, at the Registry of Deeds;
Owner agrees to cooperate in the necessary negotiation, execution, and recording
thereof.
SECTION 11.04. ATTORNEY-IN-FACT
The Tenant, upon request of any party in interest, shall execute promptly such
instruments or certificates to carry out the intent of Sections 11.02 and 11.03
above as shall be requested by the Owner. The Tenant hereby irrevocably appoints
the Owner as attorney-in-fact for the Tenant with full power and authority to
execute and deliver in the name of the Tenant any such instruments or
certificates. If fifteen (15) days after the date of a written request by Owner
to execute such instruments, the Tenant shall not have executed the same, the
Owner may, at its option, cancel this lease without incurring any liability on
account thereof, and the term hereby granted is expressly limited accordingly.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
SECTION 12.01
Tenant will not assign this lease in whole or in part, nor sublet all or any
part of the leased premises, without the prior written consent of Owner in each
instance. The consent by Owner to any assignment or subletting shall not
constitute a waiver of the necessity for such consent to any subsequent
assignment or subletting. This prohibition against assigning or subletting shall
be construed to include a prohibition against any assignment or subletting by
operation of law. If this lease be assigned, or if the leased premises or any
part thereof be underlet or occupied by anybody other than Tenant, Owner may
collect rent from the assignee, under-tenant or occupant, and apply the net
amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this covenant,
or the acceptance of the assignee, under-tenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of covenants on the
part of Tenant herein contained. Notwithstanding any assignment or sublease,
Tenant shall remain fully liable on this lease and shall not be released from
performing any of the terms, covenants and conditions of this lease. Tenant
shall have the right to sublet or assign the within lease to wholly owned
subsidiary as long as the Tenant remains liable. Owner's approval of Tenant's
subletting or assignment shall not be unreasonably withheld. In the event that
Tenant merges or reorganizes, Tenant's successor in interest shall have the
right to assume or be the assignee of the within lease, without the approval of
Owner.
ARTICLE XIII
WASTE, GOVERNMENTAL REGULATIONS
SECTION 13.01. WASTE OR NUISANCE
Tenant shall not commit or suffer to be committed any waste upon the leased
premises or any nuisance or other act or thing which may disturb the quiet
enjoyment of any other tenant in the building in which the leased premises may
be located, or in the Shopping Center, or which may disturb the quiet enjoyment
of any person within hundred feet of the boundaries of the Shopping Center.
SECTION 13.02. GOVERNMENTAL REGULATIONS
Tenant shall, at Tenant's sole cost and expense, comply with all of the
requirements of all county, municipal, state, federal and other governmental
authorities, now in force, or which may hereafter be in force, pertaining to the
said premises, and shall faithfully observe in the use of the premises all
municipal and county ordinances and state and federal statutes now in force or
which may hereafter be in force.
ARTICLE XIV
ADVERTISING, MERCHANTS ASSOCIATION
SECTION 14.01. SOLICITATION OF BUSINESS
Tenant and Tenant's employees and agents shall not solicit business in the
parking or other common areas, nor shall Tenant distribute any handbills or
other advertising matter in automobiles parked in the parking area or other
common areas.
ARTICLE XV
EMINENT DOMAIN
SECTION 15.01. TOTAL CONDEMNATION OF PREMISES
If the whole of the leased premises shall be acquired or condemned by eminent
domain for any public or quasi-public use or purpose, then the term of this
lease shall cease and terminate as of the date of title vesting in such
proceeding and all rents shall be paid up to that date and Tenant shall have any
claim against Owner for the value of any unexpired term of this lease.
SECTION 15.02. PARTIAL CONDEMNATION
If any part of the leased premises shall be acquired or condemned as aforesaid,
and in the event that such partial taking or condemnation shall render the
leased premises unsuitable for the business of the Tenant, then the term of this
lease shall cease and terminate as of the date of title vesting in such
proceeding. Tenant shall have no claim against Owner for the value of any
unexpired term of this lease and rent shall be adjusted to the date of such
termination. In the event of a partial taking or condemnation which is not
extensive enough to render the premises unsuitable for the business of the
Tenant, then Owner shall promptly restore the leased premises to a condition
comparable to its condition at the time of such condemnation less the portion
lost in the taking, and this lease shall continue in full force and effect
without any reduction or abatement of rent.
SECTION 15.03. TOTAL CONDEMNATION OF PARKING AREA
If the whole of the common parking area in the Shopping Center shall be acquired
or condemned as aforesaid, then the term of this lease shall cease and terminate
as of the date of title vesting in such proceeding unless Owner shall take
immediate steps to provide other parking facilities substantially equal to the
previously existing ratio
between the common parking areas and the leased premises, and such substantially
equal parking facilities shall be provided by Owner at its own expense within
ninety (90) days from the date of acquisition. In the event that Owner shall
provide such other substantially equal parking facilities, then this lease shall
continue in full force and effect without any reduction or abatement of rent.
SECTION 15.04. PARTIAL CONDEMNATION OF PARKING AREAS
If any part of the parking area in the Shopping Center shall be acquired or
condemned as aforesaid, and if, as the result thereof the ratio of square feet
of parking field to square feet of the sales area of the entire Shopping Center
buildings Is reduced to a ratio below two to one, then the term of this lease
shall cease and terminate upon the vesting of title in such proceeding, unless
the Owner shall take immediate steps toward increasing the parking ratio to a
ratio in excess of two to one, in which event this lease shall be unaffected and
remain in full force and effect without any reduction or abatement of rent. In
event of termination of this lease aforesaid, Tenant shall have no claim against
Owner for the value of any unexpired term of this lease and rent shall be
adjusted to the date of said termination.
SECTION 15.05. OWNER'S DAMAGES
In the event of any condemnation or taking as aforesaid, whether whole or
partial, the Tenant shall not be entitled to any part of the award paid for such
condemnation and Owner is to receive the full amount of such award, the Tenant
hereby expressly waiving any right or claim to any part thereof.
SECTION 15.06. TENANT'S DAMAGES
Although all damages in the event of any condemnation are to belong to the Owner
whether such damages are awarded as compensation for dimunition in value of the
leasehold or to the fee of the leased premises, Tenant shall have the right to
claim and recover from the condemning authority, but not from Owner, such
compensation as may be separately awarded or recoverable by Tenant in Tenant's
owner right on account of any and all damage to Tenant's business by reason of
the condemnation and for or on account of any cost or loss to which Tenant might
be put in removing Tenant's merchandise, furniture, fixtures, leasehold
improvements and equipment, or for any other claims the Tenant may have.
SECTION 15.07 CONDEMNATION OF LESS THAN A FEE
In the event of a condemnation of a leasehold interest in all or a portion of
the leased premises without the condemnation of the fee simple title also, this
lease shall not terminate and such condemnation shall not excuse Tenant from
full performance of all of its covenants hereunder, but Tenant in such event
shall be entitled to present or pursue against the condemning authority its
claim for and to receive all compensation or damages sustained by it by reason
of such condemnation, and Owner's right to recover compensation or damages shall
be limited to compensation for and damages if any, to its reversionary interest;
it being understood, however, that during such time as Tenant shall be out of
possession of the leased premises by reason of such condemnation, the lease
shall not be subject to forfeiture for failure to observe and perform those
covenants not calling for the payment of money. In the event the condemning
authority shall fail to keep the premises in the state of repair required
hereunder, or to perform any other covenant not calling for the payment of
money, Tenant shall have ninety (90) days after the restoration of possession to
it within which to carry out its obligations under such covenant or covenants.
During such time as Tenant shall be out of possession of the leased premises by
reason of such leasehold condemnation, Tenant shall pay to Owner, in lieu of the
minimum and percentage rents provided for hereunder, and in addition to any
other payments required of Tenant hereunder, an annual rent equal to the average
annual minimum and percentage rents paid by Tenant for the period from the
commencement of the term until the condemning authority shall take possession,
or during the preceding three full calendar years, whichever period is shorter.
At any time after such condemnation proceedings are commenced, Owner shall have
the right, at its option, to require Tenant to assign to Owner all compensation
and damages payable by the condemnor to Tenant, to be held without liability for
interest thereon as security for the full performance of Tenant's covenants
hereunder, such compensation and damages received pursuant to said assignment to
be applied first to the payment of rents and all other sums from time to time
payable by Tenant pursuant to the terms of this lease as such sums fall due, and
the remainder, if any, to be payable to Tenant at the end of the term hereof or
on restoration of possession to Tenant, whichever shall first occur, it being
understood and agreed that such assignment shall not relieve Tenant of any of
its obligations under this lease with respect to such rents, and other sums
except as the same shall be actually received by Owner.
ARTICLE XVI
DEFAULT OF THE TENANT
SECTION 16.01. RIGHT TO RE-ENTER
In the event of any failure of Tenant to pay any rental due hereunder within ten
(10) days after the same shall be due, or any failure to perform any other of
the terms, conditions, or covenants of this lease to be observed or performed by
Tenant for more than thirty (30) days after written notice of such default shall
have been given to Tenant, or if Tenant or an agent of Tenant shall falsify any
report required to be furnished to Owner pursuant to the terms of this lease, or
if Tenant or any guarantor of this lease shall become bankrupt or insolvent, or
file any debtor proceedings or take or have taken against Tenant or any
guarantor of this lease in any court pursuant to any statute either of the
United States or of any state a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of all or a
portion of Tenant's or any such guarantor's property, or if Tenant or any such
guarantor makes an assignment for the benefit of creditors, or petitions for or
enters into an arrangement, or if Tenant shall abandon said premises, or suffer
this lease to be taken under any writ or execution, the Owner besides other
rights or remedies it may have, shall have the immediate right of re-entry and
may remove, all persons and property from the leased premises and such property
may be removed and stored in a public warehouse or elsewhere at the cost of, and
for the account of Tenant, all without service of notice or resort to legal
process and without being deemed guilty of trespass, or becoming liable for any
loss or damage which may be occasioned thereby.
SECTION 16.02. RIGHT TO RELET
Should Owner elect to re-enter, as herein provided, or should it take possession
pursuant to legal proceedings or pursuant to any notice provided for by law, it
may either terminate this lease or it may from time to time without terminating
this lease, make such alterations and repairs as may be necessary in order to
relet the premises, and relet said premises or any part thereof for such term or
terms (which may be for a term extending beyond the term of this lease) and at
such rental or rentals and upon such other terms and conditions as Owner in its
sole discretion may deem advisable; upon each such reletting all rentals
received by the Owner from such reletting shall be applied, first, to the
payment of any indebtedness other than rent due hereunder from Tenant to Owner;
second, to the payment of any costs and expenses of such reletting, including
brokerage fees and attorney's fees and of costs of such alterations and repairs;
third, to the payment of rent due and unpaid hereunder. If such rentals received
from such reletting during any month be less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Owner. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of said premises by Owner shall be construed as an election on its
part to terminate this lease unless a written notice of such intention be given
to Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination, Owner may
at any time thereafter elect to terminate this lease for such previous breach.
Should Owner at any time terminate this lease for any breach, in addition to any
other remedies it may have, it may recover from Tenant all damages it may incur
by reason of such breach, including the cost of recovering the leased premises,
reasonable attorney's fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges equivalent
to rent reserved in this lease for the remainder of the stated term over the
then reasonable rental value of the leased premises for the remainder of the
stated term, all of which amounts shall be immediately due and payable from
Tenant to Owner. In determining the rent which would be payable by Tenant
hereunder, subsequent to default, the annual rent for each year of the unexpired
term shall be equal to the average annual minimum and percentage rents paid by
Tenant from the commencement of the term to the time of default, or during the
preceding three full calendar years, whichever period is shorter. Owner shall
have a good faith obligation to mitigate the damages caused by such failure(s)
of Tenant.
SECTION 16.03. LEGAL EXPENSES
In case suit shall be brought for recovery of possession of the leased premises,
for the recovery of rent or any other amount due under the provisions of this
lease, or because of the breach of any other covenant herein contained on the
part of Tenant to be kept or performed, and a breach shall be established,
Tenant shall pay to Owner all expenses incurred therefor, including a reasonable
attorney's fee.
SECTION 16.04. WAIVER OF JURY TRIAL AND COUNTERCLAIMS
The parties hereto shall and they hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use or occupancy of the
leased premises, and/or any claim of injury or damage.
SECTION 16.05. WAIVER OF RIGHTS OF REDEMPTION
Tenant hereby expressly waives any and all rights of redemption granted by or
under any present or future laws in the event of Tenant being evicted or
dispossessed for any cause, or in the event of Owner obtaining possession of the
leased premises by reason of the violation of Tenant of any of the covenants or
conditions of this lease, or otherwise.
ARTICLE XVII
TENANT'S PROPERTY
SECTION 17.01. TAXES ON LEASEHOLD
Tenant shall be responsible for and shall pay before delinquency all municipal,
county or state taxes assessed during the term of this lease against any
leasehold interest or personal property of any kind, owned by or placed in, upon
or about the leased premises by the Tenant.
SECTION 17.02, LOSS AND DAMAGE
Owner shall not be liable for any damage to property of Tenant or of others
located on the leased premises, nor for the loss of or damage to any property of
Tenant or of others by theft or otherwise. Owner shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain or snow or leaks from any part of
the leased premises or from the pipes, appliances or plumbing works or from the
roof, street or sub-surface or from any other place or by dampness or by any
other cause of whatsoever nature. Owner shall not be liable for any such damage
caused by other tenants or persons in the leased premises, occupants of adjacent
property, of the Shopping Center, or the public, or caused by operations in
construction of any private, public or quasi-public work. Owner shall not be
liable for any latent defect in the leased premises or in the building of which
they form a part except for a period of one (1) year from the date Tenant takes
possession of the leased premises. All property of Tenant kept or stored on the
leased premises shall be so kept or stored at the risk of Tenant only and Tenant
shall hold Owner harmless from any claims arising out of damage to the same,
including subrogation claims by Tenant's insurance carrier, unless such damage
shall be caused by the willful act or gross neglect of Owner. Owner agrees to
name Tenant as a named insured on any and all insurance policies covering the
building; Tenant agrees to name the Owner as a named insured on any and all
insurance policies covering the leased premises.
SECTION 17.03. NOTICE BY TENANT
Tenant shall give immediate notice to Owner in case of fire or accidents in the
leased premises or in the building of which the premises are a part of defects
therein or in any fixture or equipment.
ARTICLE XVIII
HOLDING OVER, SUCCESSORS
SECTION 18.01. HOLDING OVER
Any holding over after the expiration of the term hereof, with the consent of
the Owner, shall be construed to be a tenancy from month to month at the rents
herein specified (pro-rated on a monthly basis) and shall otherwise be on the
terms and conditions herein specified, so far as applicable.
SECTION 18.02. SUCCESSORS
All rights and liabilities herein given to, or imposed upon, the respective
parties hereto shall extend to and bind the several respective heirs, executors,
administrators, successors, and assigns of the said parties; and if there shall
be more than one tenant, they shall all be bound jointly and severally by the
terms, covenants and agreements herein. No rights, however, shall inure to the
benefit of any assignee of Tenant unless the assignment to such assignee shall
have been approved by Owner in writing as provided in Section 12.01 hereof.
ARTICLE XIX
QUIET ENJOYMENT
SECTION 19.01. OWNER'S COVENANT
Upon payment by the Tenant of the rents herein provided, and upon the observance
and performance of all the covenants, terms and conditions on Tenant's part to
be observed and performed, Tenant shall peaceably and quietly hold and enjoy the
leased premises for the term hereby demised without hindrance or interruption by
Owner or any other person or persons lawfully or equitably claiming by, through
or under the Owner, subject, nevertheless, to the terms and conditions of this
lease.
ARTICLE XX
MISCELLANEOUS
SECTION 20.01. WAIVER
The waiver by Owner of any breach :f any term, covenant, or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition
or any subsequent breach of the same or any other term, covenant or condition
herein contained. The subsequent acceptance of rent hereunder by Owner shall not
be deemed to be a waiver of and preceding breach by Tenant of any term, covenant
or condition of this lease, other then the failure of Tenant to pay the
particular rent so accepted, regardless of Owner's knowledge or such preceding
breach at the time of acceptance c such rent. No covenant, term or condition, of
this lease shall be deemed to have been waived by Owner, unless such waiver be
in writing by Owner.
SECTION 2O.02. ACCORD AND SATISFACTION
No payment by Tenant or receipt by Owner of a lesser amount than the monthly
rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement on any check or
any letter accompany any check or payment as rent be deemed an accord and
satisfaction, and Owner may accept such check or payment without prejudice to
Owner's right to recover the balance of such rent or pursue any other remedy in
this lease provided.
SECTION 20.03. ENTIRE AGREEMENT
This lease and the Exhibits, and Rider, if any, attached hereto and forming a
part hereof, set forth all the covenants, promises, agreements, conditions and
understandings between Owner and Tenant concerning the leased premises and there
are no covenants, promises, agreements, conditions, or understandings, either
oral or written, between them other than are herein set forth. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to
this lease shall be binding upon Owner or Tenant unless reduced to writing and
signed by them.
SECTION 20.04. NO PARTNERSHIP
Owner does not, in any way or for any purpose, become a partner of Tenant in the
conduct of its business, or otherwise, or joint adventurer or a member of a
joint enterprise with Tenant. The provisions of this lease relating to the
percentage rent payable hereunder are included solely for the purpose of
providing a method whereby the rent is to be measured and ascertained.
SECTION 20.05. FORCE MAJEURE
In the event that either party hereto shall be delayed or hindered in or
prevented from the performance of any act required hereunder by reason of
strikes,
lockouts, labor troubles, inability to procure materials, failure of power,
restrictive governmental laws or regulations, riots, insurrection, war or other
reason of a like nature not the fault of the party delayed in performing work or
doing acts required under the terms of this lease, then performance of such act
shall be excused for the period of the delay and the period for the performance
of any such act shall be extended for a period equivalent to the period of such
delay. The provisions of this Section 2O.05 shall not operate to excuse Tenant
from prompt payment of rent, percentage rent, additional rent or any other
payments required by the terms of this lease.
SECTION 20.06. NOTICES
Any notice, demand, request or other instrument which may be or are required to
be given under this lease shall be delivered in person or sent by United States
certified mail postage prepaid and shall be addressed (a) if to Owner at the
address first hereinabove given or at such other address as Owner may designate
by written notice and (b) if to Tenant at the leased premises or at such other
address as Tenant shall designate by written notice.
SECTION 20.07. CAPTIONS AND SECTION NUMBERS.
The captions, section numbers, article numbers, and index appearing in this
lease are inserted only as a matter of convenience and in no way define, limit,
construe or describe the scope or intent of such sections or articles in this
lease nor in any way affect this lease.
SECTION 20.08. TENANT DEFINED, USE OF PRONOUNS
The word "Tenant" shall be deemed and taken to mean each and every person or
party mentioned as a Tenant herein, be the same one or more; and if there shall
be more than one Tenant, any notice required or permitted by the terms of this
lease may be given by or to any one thereof, and shall have the same force and
effect as if given by or to all thereof. The use of the neuter singular pronoun
to refer to Owner or Tenant shall be deemed a proper reference even though Owner
or Tenant may be an individual, a partnership, a corporation, or a group of two
or more individuals or corporations. The necessary grammatical changes required
to make the provisions of this lease apply in the plural sense where there is
more than one Owner or Tenant and to either corporations, associations,
partnerships, or individuals, males or females, shall in all instances be
assumed as though in each case fully expressed.
SECTION 2O.09. BROKER'S COMMISSION
Each of the parties represents and warrants that there are no claims for
brokerage commissions or finder's fees in connection with the execution of this
lease, except as listed below, and each of the parties agrees to indemnify the
other against, hold it harmless from, all liabilities arising from any such
claim (including, without limitation, the cost of counsel fees in connection
therewith) except as follows: NONE
SECTION 20.10. PARTIAL INVALIDITY
If any term, covenant or condition of this lease or the application thereof to
any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this lease, or the application of such term, covenant or
condition to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each term, covenant
or condition of this lease shall be valid and be enforced to the fullest extent
permitted by law.
SECTION 20.11. CONDOMINIUM CONVERSION RIGHT OF FIRST REFUSAL
In the event that the Owner converts the shopping center in which the leased
premises are located to condominium ownership and offers the leased premises for
sale, Owner hereby grants to Tenant a right of first refusal to purchase the
leased premises on the identical terms which the Owner is then willing to sell
the leased premises for to any purchaser; Owner also agrees to give the Tenant
forty-five (45) days by giving the Owner written notice, certified mail, return
receipt requested, of Owner's then willingness to sell and all of such terms. If
Tenant does not exercise its right of first refusal within said forty-five (45)
days by giving the Owner written notice, certified mail, return receipt
requested, and actually purchasing the leased premises not more than thirty (30)
days after giving said notice of acceptance, said right of first refusal shall
lapse.
SECTION 20.12. RECORDING
Tenant shall not record this lease without the written consent of Owner;
however, upon the request of either party hereto the other party shall join in
the execution of a m memorandum or so-called "short-form" of this lease for the
purposes of recordation. Said memorandum or short form of this lease shall
describe the parties, the leased premises, and the term of this lease and shall
incorporate this lease by reference,
SECTION 20.13. OUTSTANDING MORTGAGE LOAN ON SHOPPING CENTER COVENANT OF-
QUIET ENJOYMENT IN THE EVENT OF FINANCING
The Owner and Tenant agree that Owner has borrowed from Tenant a large portion
of the funds needed by Owner for the construction of the shopping center in
which the leased premises a-e located, and that a corresponding mortgage loan is
presently outstanding. In the event that the Owner agrees to refinance the
existing mortgage loan on the Shopping Center, Owner shall pay no prepayment
penalty of any nature. In the event that the Owner borrows funds and mortgages
the Shopping Center with another financial institution (i.e. other than the
Tenant) Owner agrees to include in any mortgage and in all related documents a
covenant of quiet enjoyment, guaranteeing the Tenant the right to continue
occupation of the leased premises provided the Tenant is in compliance with the
terms of this lease, regardless of the possible defaults of Owner in regard to
such mortgagee financial institution.
IN WITNESS WHEREOF, Owner and Tenant have signed and sealed this lease as of the
day and year first above written.
/s/ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee of Five Jays
Realty Trust, OWNER
Date
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Ipswich Savings Bank, by its President,
▇▇▇▇▇ ▇. ▇▇▇▇
Date
[GRAPHIC OMITTED: Building Ground Plan]