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EXHIBIT 10(a)(i)
----------------
LEASE
BETWEEN
METROPARK, LTD.
AND
CAPITAL PROPERTIES, INC.
DATED AS OF DECEMBER 1, 1999
(COVERING PARCELS 3W AND 4W)
III-3
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L E A S E
---------
THIS INDENTURE OF LEASE made as of the 1st day of December, 1999, by and
between CAPITAL PROPERTIES, INC., a Rhode Island corporation (hereinafter
referred to as "Landlord"), and METROPARK, LTD., a Rhode Island corporation
(hereinafter referred to as "Tenant").
W I T N E S S E T H T H A T:
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In consideration of the rents, covenants and agreements to be paid, kept
and performed by Tenant, as hereinafter provided, Landlord hereby demises and
leases to Tenant, and Tenant hereby hires and takes from Landlord the real
property known as Parcels 3W and 4W in the Capital Center, in Providence, Rhode
Island, as shown on a plan attached to this Lease as Exhibit A (hereinafter
called the "Premises").
TO HAVE AND TO HOLD the Premises, together with all rights, privileges,
easements and appurtenances thereunto belonging and attaching, unto Tenant for a
term of two (2) years (hereinafter called the "Term") commencing as of December
1, 1999, and ending on November 30, 2001.
This Lease is made upon the covenants and agreements herein set forth on
the part of the respective parties, all of which the parties respectively agree
to observe and comply with during the term hereof.
1. Rental.
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During the period from December 1, 1999 to November 30, 2000, Tenant shall
pay to Landlord an annual rental of One Hundred Fifty Thousand ($150,000)
Dollars payable in monthly installments of Twelve Thousand Five Hundred
($12,500) Dollars on the first day of each month without offset, deduction or
abatement.
During the period from December 1, 2000 to November 30, 2001, Tenant shall
pay to Landlord an annual rental of One Hundred Fifty-six Thousand ($156,000)
Dollars payable in monthly installments of Thirteen Thousand ($13,000) Dollars
on the first day of each month.
2. Utilities and Other Charges.
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Tenant will pay directly before the same become delinquent all charges,
duties, rates, license and permit fees and other amounts of every description to
which the Premises or any part thereof or any improvement thereon erected or
used by Tenant may, during the term hereof, be assessed or become liable for
electricity, refuse collection, telephone or any other utilities or services or
any connection or meters therefor, whether assessed to or payable by Landlord or
Tenant. Tenant will, within ten (10) days after receipt of written demand by
Landlord, furnish Landlord with receipts or other evidence indicating that all
such amounts have been paid. Provided, however, that Tenant shall only be
responsible for those charges and assessments which are for the period of its
occupancy of the Premises.
3. Taxes and Assessments.
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Landlord will pay and keep current the real estate taxes assessed against
the premises.
4. Compliance with Laws and Regulations.
------------------------------------
Tenant will at all times during the term hereof keep the Premises in good
order and a strictly sanitary condition and observe and perform all laws,
ordinances, orders, rules and regulations now or hereafter made by any
governmental authority for the time being applicable to the Premises or any
improvement thereon or use thereof, and with the orders, rules and regulations
of the National Board of Fire Underwriters or similar organization so far as the
same may relate to the use of the Premises, and will indemnify Landlord against
all actions, suits, damages and claims by whomsoever brought or made by reason
of the nonobservance or nonperformance of such laws, ordinances, orders, rules
and regulations, or of this covenant. Nothing herein shall obligate the Tenant
to construct any additional improvements on the Premises.
5. Inspection.
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Tenant will permit Landlord and its agents at all reasonable times during
the term hereof to enter the Premises and examine the state of repair and
condition thereof, and the use being made of the same. Landlord may also enter
upon the Premises to perform any repairs or maintenance which Tenant has failed
to perform hereunder, and to show the premises to prospective purchasers,
tenants and mortgagees. Further, Landlord shall have the right to have test
borings done on the premises, and will use reasonable, good faith effort to
avoid unreasonable interference with the Tenant's business thereon.
6. Repair and Maintenance.
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Tenant will, at its own expense, from time to time and at all times during
the term hereof, well and substantially repair, maintain, amend and keep the
Premises, together with all fixtures and items of personal property used or
useful in connection therewith, with all necessary reparations and amendments
whatsoever in as good order and condition as they now are or may be put in,
reasonable wear and tear and damage by the elements and such unavoidable
casualty against which insurance is not required hereunder excepted. Tenant will
maintain the signs on the Premises and fix all potholes that may develop. Tenant
will have the benefit of all warranties pertaining thereto. Tenant will remove
snow from the Premises and keep the sidewalks clean and free from ice and snow.
Landlord will be responsible for any capital improvements.
7. Use.
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Tenant shall use the Premises only for the operation of a parking lot and
other accessories related to a parking lot which are approved by Landlord.
8. Notices re Premises.
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Landlord will forthwith furnish Tenant copies of any notices it receives
regarding the Premises from any third parties which notices relate to the
Tenant's use and occupancy of the Premises.
9. Cancellation of Lease.
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Either Landlord or Tenant may cancel this Lease upon thirty (30) days'
written notice to the other.
10. Insurance.
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Tenant agrees to maintain at all times public liability insurance on an
occurrence basis against all claims and demands for personal injury liability
(including, without limitation, bodily injury, sickness, disease, and death) and
damage to property which may be claimed to have occurred on the Land or in the
Building in the event of injury to any number of persons or damage to property,
arising out of any one occurrence, which shall, at the beginning of the Term, be
at least equal to $1,000,000, and to name Landlord and any mortgagees and ground
lessors designated by landlord as additional insured and furnish landlord with
the certificates thereof; such insurance shall contain a provision that the
Landlord, and each such mortgagee and ground lessor although named as an
insured, shall nevertheless be entitled to recovery under said policy for any
loss occasioned to it, its servants, agents and employees by reason of the
negligence of the Tenant; all insurance required under the terms of this Lease
shall be effected with insurers having a general policyholders rating of not
less than A in Best's latest rating guide and shall not be canceled or modified
without at least 30 days' prior written notice to each insured named therein.
Tenant shall provide landlord with certificates of all insurance required to be
carried by Tenant under the Lease at or prior to the Commencement Date and prior
to the expiration of each such policy.
11. Landlord's Costs and Expenses.
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If Tenant shall fail to comply with any of its obligations hereunder,
landlord may, upon ten (10) days' prior written notice to Tenant (or without
notice in case of emergency), take any such action as may be reasonably required
to cure any such default by Tenant. Tenant will pay to Landlord, on demand, all
costs and expenses, including reasonable attorneys' fees, incurred by Landlord
in collecting any delinquent rents, or other charges payable by Tenant
hereunder, or in connection with any litigation commenced by or against Tenant
(other than condemnation proceedings) to which Landlord, without any fault on
its part, shall be made a party. All such amounts owing to Landlord shall
constitute additional rent hereunder.
12. Indemnification of Landlord.
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12.1. Tenant shall indemnify and save harmless Landlord (regardless of
Tenant's covenant to insure) against and from any and all claims by or on behalf
of any person or persons, firm or firms, corporation or corporations, arising
from the use, occupancy, conduct or management of the Premises, unless done by
or contributed to Landlord, any of its agents, contractors, servants, employees
or licensees, and shall further indemnify and save Landlord harmless against and
from any and all claims arising during the term hereof from any condition of the
Premises, or arising from any breach or default on the part of Tenant in the
performance of any covenant or agreement on the part of Tenant to be performed
pursuant to the terms of this Lease, or arising from any act of Tenant or any of
its agents, contractors, servants or employees to any person, firm or
corporation occurring
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during the term hereof in or about the Premises or upon or under said areas, and
from and against all costs, counsel fees, expenses or liabilities incurred in or
about any such claim or action or proceeding brought thereon.
12.2. Tenant shall pay and indemnify Landlord against all legal costs
and charges incurred in obtaining possession of the Premises after the default
of Tenant or upon expiration or earlier termination of the term hereof, other
than by reason of any default of Landlord, or in enforcing any covenant or
agreement of Tenant herein contained.
13. Liens.
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13.1. Tenant will not commit, suffer any act or neglect whereby the
Premises or any improvements thereon or the estate of Landlord therein shall at
any time during the term hereof become subject to any attachment, judgment,
lien, charge or encumbrance whatsoever, except as herein expressly provided, and
will indemnify and hold Landlord harmless from and against all loss, costs and
expenses, including reasonable attorneys' fees, with respect thereto.
13.2. If due to any act or neglect of Tenant, any mechanic's,
laborer's or materialmen's lien shall at any time be filed against the premises
or any part hereof, Tenant, within thirty (30) days after notice of the filing
thereof shall cause the same to be discharged of record by payment, bonding or
otherwise, and if Tenant shall fail to cause the same to be discharged, then
Landlord may, in addition to any other right or remedy, cause the same to be
discharged, either by paying the amount claimed to be due, or by procuring the
discharge of such lien by deposit or by bonding proceedings, and all amounts so
paid by landlord, together with all reasonable costs and expenses incurred in
connection therewith, and together with interest thereon at the rate of ten
percent (10%) per annum from the respective dates of payment, shall be paid by
Tenant to Landlord, on demand, as additional rent hereunder.
13.3. Nothing in this lease contained shall be deemed or construed in
any way as constituting the consent or request of Landlord, express or implied
by inference or otherwise, to any contractor, subcontractor, laborer,
materialmen, architect or engineer for the performance of any labor or the
furnishing of any materials or services for or in connection with the Premises
or any part thereof. Notice is hereby given that Landlord shall not be liable
for any labor or materials or services furnished or to be furnished to Tenant
upon credit, and that no mechanic's or other lien for any such labor, materials,
or services shall attach to or affect the fee or reversionary or other estate or
interest of Landlord in the Premises of and in this Lease.
14. Default.
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14.1. In the event that during the term hereof any of the following
events shall occur (each of which shall be an "Event of Default");
(a) Tenant shall default in the payment of any installment of the
Rent for ten (10) days after the same shall become due, during which ten-day
period Tenant may cure the default;
(b) Tenant or any permitted assignee of Tenant shall (i) apply
for or consent to an appointment of a receiver, a trustee or liquidator of it or
of all or a substantial part of its assets; (ii) make a general assignment for
the benefit of creditors; (iii) be adjudicated a bankrupt or insolvent; (iv)
file a voluntary petition in bankruptcy or a petition or an answer seeking
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reorganization or an arrangement with creditors to take advantage of any
insolvency law or an answer admitting the material allegations of a petition
filed against it in any bankruptcy, reorganization or insolvency proceeding or
corporate action shall be taken by it for the purpose of effecting any of the
foregoing;
(c) An order, judgment or decree shall be entered, without the
application, approval or consent of Tenant or any permitted assignee of Tenant
by any court of competent jurisdiction, approving a petition seeking
reorganization of Tenant or such assignee or appointing a receiver, trust or
liquidator of Tenant or such assignee or of all or a substantial part of its
assets and such order, judgment or decree shall continue unstayed and in effect
for any period of sixty (60) consecutive days; or
(d) Any other default by Tenant in performing any of its other
obligations hereunder shall continue uncorrected for ten (10) days after receipt
of written notice thereof from Landlord, during which period Tenant or such
assignee may cure the default; then landlord may, by giving written notice to
Tenant, either (a) terminate this Lease, (b) re-enter the Premises by summary
proceedings or otherwise, expelling Tenant and removing all of Tenant's property
therefrom, and relet the Premises and receive the rent therefrom, or (c)
exercise any other remedies permitted by law. Tenant shall also be liable for
the reasonable cost of obtaining possession of and reletting the Premises and of
any repairs and alterations or other payments necessary to prepare them for
reletting. Any and all such amounts shall be payable to Landlord upon demand.
Notwithstanding anything contained herein to the contrary, no termination of
this Lease prior to the last day of the term hereof, except as provided in
Section 15 hereof, shall relieve Tenant of its liability and obligations under
this Lease, and such liability and obligations shall survive any such
termination.
14.2. In the event of any breach by Tenant of any of the covenants,
agreements, terms or conditions contained in this Lease, Landlord shall be
entitled to enjoin such breach or threatened breach and shall have the right to
invoke any right and remedy allowed at law or in equity, or by statute or
otherwise, as though reentry, summary proceedings and other remedies were not
provided for in this Lease.
14.3. Each right and remedy of Landlord provided for in this Lease
shall be cumulative and shall be in addition to every other right or remedy
provided for in this Lease or now or hereafter existing, at law or in equity, or
by statute or otherwise, and the exercise or beginning of the exercise by
Landlord of any one or more of the rights or remedies provided for in this
Lease, or now or hereafter existing at law or in equity, or by statute or
otherwise, shall not preclude the simultaneous or later exercise by Landlord of
any or all other rights or remedies provided for in this Lease, or now or
hereafter existing at law or in equity, or by statute or otherwise.
15. Eminent Domain.
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If the whole or any part of the demised premises shall be condemned or
acquired 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 vesting of
title in such proceeding and all rentals shall be paid up to the date of the
vacating of the premises by Tenant and Tenant shall have no claim against
Landlord nor the condemning authority for the value of any unexpired term of
this Lease.
In the event of any condemnation or taking as aforesaid, whether whole or
partial, Tenant shall not be entitled to any part of the award paid for such
condemnation and Landlord is to receive
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the full amount of such award, Tenant hereby expressly waiving any right or
claim to any part thereof.
16. Condition of Premises.
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Tenant represents that the Premises, the sidewalks and structures adjoining
the same, and any subsurface conditions thereof, and the present uses and
non-uses thereof, have been examined by Tenant, and Tenant agrees that it will
accept the same in the condition or state in which they, or any of them, now
are, without representation or warranty, express or implied in fact or by law,
by Landlord, and without recourse to Landlord as to the nature, condition or
usability thereof, or the use or uses to which the Premises, or any part
thereof, may be put.
17. Independent Covenants--No Waiver.
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17.1. Each and every of the covenants and agreements contained in this
Lease shall be for all purposes construed to be separate and independent
covenants and the waiver of the breach of any covenant contained hereby by
Landlord shall in no way or manner discharge or relieve Tenant from Tenant's
obligation to perform each and every of the covenants contained herein.
17.2. If any term or provision of this Lease or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and shall be enforced to the fullest extent permitted
by law.
17.3. The failure of Landlord to insist in any one or more cases upon
the strict performance of any of the covenants of this Lease shall not be
construed as a waiver or a relinquishment for the future of such covenant. A
receipt by Landlord of rent with knowledge of the breach of any covenant hereof
shall not be deemed a waiver of such breach, and no waiver by landlord of any
provision of this Lease shall be deemed to have been made unless expressed in
writing and signed by Landlord. All remedies to which landlord may resort under
the terms of this Lease or by law provided shall be cumulative.
18. Subordination.
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This Lease and the rights of Tenant hereunder are subject and subordinate
in all respects to all matters of record, including, without limitation, deeds
and all mortgages which may now or hereafter be placed on or affect the
Premises, or any part thereof, and/or Landlord's interest or estate therein, and
to each advance made and/or hereafter to be made under any such mortgages, and
to all renewals, modifications, consolidations, replacements and extensions
thereof, and all substitutions.
19. Quiet Enjoyment.
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Landlord covenants that Tenant, upon paying the rent and performing the
covenants hereof on the part of Tenant to be performed shall and may peaceably
and quietly have, hold and enjoy the Premises and all related appurtenances,
rights, privileges and easements throughout the term hereof without any lawful
hindrance by landlord and any person claiming by, through or under it.
20. Return of Premises.
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At the expiration or other temination of the term hereof, Tenant will
remove from the Premises its property and that of all claiming under it and will
peaceably yield up to Landlord the Premises in as good condition in all respects
as the same were at the commencement of this Lease, except for ordinary wear and
tear, damage by the elements, by any exercise of the right of eminent domain or
by public or other authority, or damage which Landlord is required herein to
replace, restore or rebuild or damage for which no insurance is required
hereunder.
21. Holdover.
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Tenant agrees to pay to landlord twice the total of all rent then
applicable for each month or portion thereof Tenant shall retain possession of
the Premises or any part thereof after the termination of this Lease (unless and
to the extent such holding over shall be pursuant to a written agreement between
Landlord and Tenant), whether by lapse of time or otherwise, and also to pay all
damages sustained by landlord on account thereof; the provisions of this
subsection shall not operate as a waiver by Landlord of any right of re-entry
provided in this Lease or under law. Tenant shall also pay all reasonable legal
fees and damages incurred by Landlord as a result of such holdover.
22. Limitation of Liability.
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Tenant shall neither assert nor seek to enforce any claim for breach of
this Lease against any of Landlord's assets other than Landlord's interest in
the Premises, and Tenant agrees to look solely to such interest for the
satisfaction of any liability of Landlord under this Lease, it being
specifically agreed that in no event shall landlord (which term shall include,
without limitation, any of the officers, employees, agents, attorneys, trustees,
directors, partners, beneficiaries, joint venturers, members, stockholders or
other principals or representatives, disclosed or undisclosed, thereof) ever be
personally liable for any such liability.
23. No Recording of Lease.
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Tenant hereby acknowledges and agrees that it shall not record this Lease
or any notice or memorandum of this Lease in any land evidence records or any
other public record without the express prior written consent of Landlord. In
the event of any such recording, Tenant shall be in default of this Agreement
and Landlord shall have all rights and remedies available under law or in equity
as a result of such recordation including, without limitation, the right to
terminate this Lease.
24. Assignment and Subletting.
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Tenant will not assign this Lease, in whole or in part, nor sublet all or
any part of the Premises, nor license, nor pledge or encumber by mortgage or
other instruments its interest in this Lease without landlord's prior written
consent, which consent may be withheld by landlord in its sole and absolute
discretion. This prohibition includes any subletting or assignment which would
otherwise occur by operation of law, merger, consolidation, reorganization,
transfer or other change of Tenant's corporate or trustee in any federal or
state bankruptcy, insolvency, or other proceedings. Consent by landlord to any
assignment or subletting shall not constitute a waiver of the foregoing
prohibition with respect to any subsequent assignment or subletting.
25. Use of Hazardous Material.
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Tenant shall not cause or permit any Hazardous Material to be brought upon,
kept or used in or about the Premises by Tenant, its agents, employees,
contractors or invitees without the prior written consent of Landlord. If Tenant
breaches the obligations stated in the preceding sentence, or if contamination
of the Premises by Hazardous Material otherwise occurs, Tenant shall indemnify,
protect, defend and hold Landlord harmless from any and all claims, judgments,
damages, penalties, fines, costs, liabilities or losses (including, without
limitation, diminution in value of the Premises, damages for the loss or
restriction on use of rentable Premises or usable space or of any amenity of the
Premises, damages arising from any adverse impact on marketing of Premises
space, and sums paid in settlement of claims, attorneys' fees, consultant fees
and expert fees) which arise during or after the Term as a result of such
contamination. This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any clean-up, remedial, removal or restoration work required by
any federal, state or local government agency or political subdivision because
of Hazardous Material present in the sole, surface water or groundwater on, near
or under the Premises.
As used herein, the term "Hazardous Material" means any hazardous or toxic
substance, material or waste, including, but not limited to, those substances,
materials, and wastes listed in the United States Department of Transportation
Hazardous materials Table (49 CFR 172.101) or by the Environmental Protection
Agency as hazardous substances (40CFR part 302) and amendments thereto, or such
substances, materials and wastes that are or become regulated under any
applicable local, state or federal law.
Landlord and its agents shall have the right, but not the duty, to inspect
the Premises at any time to determine whether Tenant is complying with the terms
of this Lease.
26. Construction.
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The mention of the parties hereto by name or otherwise shall be construed
as including and referring to their respective successors and assigns as well as
to the parties themselves whenever such construction is required or admitted by
the provisions hereof; and all covenants, agreements, conditions, rights, powers
and privileges hereinbefore contained shall inure to the benefit of and be
binding upon the successors and assigns of such parties, unless otherwise
provided.
27. Permits.
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Tenant, at its cost, shall obtain any necessary permits for the Premises
from the City of Providence.
28. Notices.
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Whenever notice shall be given under this Lease, the same shall be in
writing and shall be sent by certified or registered mail, return receipt
requested as follows:
To the Landlord: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
To the Tenant: c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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To the Tenant's ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Attorney: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address or addresses as each party may from time to time
designate by like notice to the other. Said notice shall be valid and times
begin to run hereunder upon receipt of the party to which said notice is given.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed in duplicate as of the day and year first above written.
CAPITAL PROPERTIES, INC. METROPARK, LTD.
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------- --------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
President
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STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In Providence, in said County on the 14th day of September, 1999, before me
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, President of CAPITAL PROPERTIES,
INC., to me known and known by me to be the person executing the foregoing
instrument on behalf of said corporation, and he acknowledged said instrument by
him executed to be his free act and deed and the free act and deed of said
corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Notary Public
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
My Commission Expires June 23, 2001
STATE OF RHODE ISLAND
COUNTY OF PROVIDENCE
In Providence, in said County on the 15th day of September, 1999, before me
personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President of METROPARK, LTD., to me known
and known by me to be the person executing the foregoing instrument on behalf of
said corporation, and he acknowledged said instrument by him executed to be his
free act and deed and the free act and deed of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Notary Public
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GUARANTEE
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In consideration of the execution of the foregoing lease by the Landlord, the
undersigned (jointly and severally, if more than one) guarantees that the Tenant
will pay all rent thereunder and will perform all other terms, conditions or
agreements on its part to be performed or fulfilled, and agrees that the
foregoing lease may be amended from time to time by the parties thereto without
notice to the undersigned. The undersigned consents that extensions of time of
payment or any other indulgences may be granted to the Tenant without notice to
and without releasing or affecting in any way the liability of the undersigned
and the undersigned waives demand and notice of default. This guarantee is in
addition to any other security which the Landlord may have for the performance
of the Tenant's obligations and the Landlord may have the recourse to this
guarantee without first pursuing the Landlord's remedies against such other
security, if any. The Landlord may release, in whole or in part, any other
security without releasing or affecting in any way the liability of the
undersigned. In addition, the undersigned will pay to the Landlord all costs and
expenses (including attorneys' fees) incurred in connection with the enforcement
of this guarantee. Executed this 15th day of September, 1999.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇