EXHIBIT 10.27
EXECUTED COPY
LEASE
E & D REALTY TRUST, LESSOR
THE BIG PARTY, INC., LESSEE
PREMISES: A PORTION OF PREMISES SITUATED AT
0000-0000 XXX XXXXXXX, XXXX XXXXXXX, XX
TABLE OF CONTENTS
LEASE DATA EXHIBIT ................................................ 1
ARTICLE 1 ......................................................... 4
Term of Lease
ARTICLE 2 ......................................................... 5
Rent
ARTICLE 3 ......................................................... 6
Appurtenant Rights and Reservations
ARTICLE 4 ......................................................... 6
Use of Premises
ARTICLE 5 ......................................................... 8
Rules and Regulations
ARTICLE 6 ......................................................... 8
Assignment, Subletting and Encumbrances
ARTICLE 7 ......................................................... 9
Maintenance, Repair and Alterations
ARTICLE 8 ......................................................... 10
Utilities
ARTICLE 9 ......................................................... 11
Real Estate Taxes
ARTICLE 10 ........................................................ 12
Indemnification of Lessor and Public Liability Insurance
ARTICLE 11 ........................................................ 14
Casualty Insurance; Destruction
ARTICLE 12 ........................................................ 17
Lessor's Access to Premises
ARTICLE 13 ........................................................ 17
Exhibition of Space to Prospective Tenants
ARTICLE 14 ........................................................ 17
Eminent Domain
ARTICLE 15 ........................................................ 19
Non-Subrogation
ARTICLE 16 ........................................................ 19
Sign Use
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ARTICLE 17 ........................................................ 20
Lessee's Default
ARTICLE 18 ........................................................ 21
Default by Lessor
ARTICLE 19 ........................................................ 21
Waiver
ARTICLE 20 ........................................................ 21
Subordination
ARTICLE 21 ........................................................ 22
Mechanics' and Other Liens
ARTICLE 22 ........................................................ 22
Quiet Enjoyment
ARTICLE 23 ........................................................ 22
Invalidity of Particular Provisions
ARTICLE 24 ........................................................ 23
Provisions Binding, Etc.
ARTICLE 25 ........................................................ 23
Recording
ARTICLE 26 ........................................................ 23
Notices
ARTICLE 27 ........................................................ 24
Paragraph Headings
ARTICLE 28 ........................................................ 24
Surrender of Premises
ARTICLE 29 ........................................................ 24
Self Help
ARTICLE 30 ........................................................ 25
Holding Over
ARTICLE 31 ........................................................ 25
Governing law
ARTICLE 32 ........................................................ 25
Miscellaneous Lessor Obligations
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LEASE DATA EXHIBIT
EXECUTION DATE: October 9, 1992
LESSOR: E & D Realty Trust
and Original c/o Xxxxxx X. Xxxxxx
Address 00 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
LESSEE: The Big Party, Inc.
and Original c/o Xxx X. Xxxxxxxx
Address 000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 (prior to the
Commencement Date)
0000 XXX Xxxxxxx
Xxxx Xxxxxxx, XX (after the Commencement
Date)
PREMISES: Approximately twenty thousand (20,000)
square feet in Buildings 2 and 3 located
at 0000 XXX Xxxxxxx, Xxxx Xxxxxxx, XX as
shown on the plan annexed hereto as
Exhibit A together with the right to use
in common with others entitled thereto
the parking and other common areas shown
on Exhibit A.
TERM: The period commencing October 16, 1992
(the "Commencement Date") and ending on
December 31, 2002.
EXTENSION TERM: One (1) five (5) year option to extend
the Lease to be exercised by notice from
Lessee to Lessor no later than eight (8)
months prior to the expiration of the
Term.
RENT COMMENCEMENT DATE: November 15, 1992.
RENT:
Lease Year 1 & 2 $100,000.00 per annum; payable in equal
monthly installments of $8,333.00 on the
first day of each month, and pro rata at
such rate for any fraction of a month at
the Rent Commencement Date.
Lease Year 3 $105,000.00 per annum; payable in equal
monthly installments of $8,750.00 on the
first day of each month.
Lease Year 4 $110,250.00 per annum; payable in equal
monthly installments of $9,188.00 on the
first day of each month.
Lease Year 5 $115,762.00 per annum; payable in equal
monthly installments of $9,647.00 on the
first day of each month.
Lease Year 6 $121,550.00 per annum; payable in equal
monthly installments of $10,129.00 on
the first day of each month.
Lease Year 7 $127,628.00 per annum; payable in equal
monthly installments of $10,635.00 on
the first day of each month.
Lease Year 8 $134,000.00 per annum; payable in equal
monthly installments of $11,725.00 on
the first day of each month.
Lease Year 9 $140,700.00 per annum; payable in equal
monthly installments of $11,725.00 on the
first day of each month.
Lease Year 10 $147,735.00 per annum; payable in equal
(which Lease Year monthly installments of $12,311.00 on
shall include the the the first day of each month and pro
additional period, rata at such rate for any fraction of a
if any, ending month.
December 31, 2002)
the execution of this Lease, Lessee
shall pay to Lessor (a) the sum of
$8,333.00 which shall be credited toward
the first month's Rent due hereunder,
and (b) the sum of $5,000.00 which shall
be credited toward the last month's Rent
due hereunder. Lessee shall also deliver
to Lessor upon the execution of this
Lease, a personal guaranty from Xxx X.
Xxxxxxxx of Lessee's obligations under
this Lease.
EXTENSION TERM RENT: Rent for the Extension Term shall be
determined by market conditions at such
time for comparable premises but in no
event shall Rent be less than $147,735.00
per annum payable in equal monthly
installments on the first day of each
month. In the event Lessor and Lessee are
unable to agree on Rent for the Premises,
the matter shall be referred for binding
arbitration to the American Arbitration
Association or some other agreed upon
agency or company.
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USE: Lessee agrees that the Premises shall be
used for the purpose of a party goods and
paper goods store, other retail uses, and
uses related thereto, including offices
and storage.
LESSOR: LESSEE:
E & D REALTY TRUST THE BIG PARTY, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxxx
------------------------------ ------------------------------
Xxxxxx X. Xxxxxx, Trustee Xxx X. Xxxxxxxx, its President
and not individually
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INDENTURE OF LEASE
This Indenture of Lease made on the 9th day of October, 1992 by and between
XXXXXX X. XXXXXX, Trustee of E & D Realty Trust, under a Declaration of Trust
filed with the Suffolk County Registry District of the Land Court as Instrument
No. 387181, whose address is 00 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, XX (hereinafter
referred to as "Lessor"), and THE BIG PARTY, INC., a
Massachusetts corporation,
whose address until the Commencement Date is c/o Xxx X. Xxxxxxxx, 000 Xxxxx
Xxxxxx, Xxxxxxxxx, XX and whose address after the Commencement Date will be 0000
XXX Xxxxxxx, Xxxx Xxxxxxx, XX (hereinafter referred to as "Lessee").
W I T N E S S E T H:
BY THIS LEASE, Lessor hereby leases to Lessee, and Lessee hereby accepts
this Lease of the Premises, all upon the terms, covenants and conditions set
forth in this Lease and the Lease Data Exhibit which is hereby incorporated by
reference into and as part of this Lease.
ARTICLE I
Term of Lease
1.1 INITIAL TERM. This Lease will be for the Term as set forth on the
Lease Data Exhibit attached hereto. Lessor agrees to deliver possession of the
Premises to Lessee on or before October 16, 1992. Notwithstanding anything to
the contrary set forth in this Lease, for the period from the date of delivery
of the Premises to Lessee until the Rent Commencement Date, Lessee shall not be
obligated to pay any Rent or other charges under this Lease. In the event that
Lessor fails to complete Lessor's Work by November 15, 1992, then Lessee, at its
option, may either (a) terminate this Lease and receive a full refund of all
payments made hereunder, or (b) treat this Lease as in full force and effect;
provided, however, that the Rent Commencement Date, as otherwise stated herein,
shall be extended by two (2) days for every day that Lessor is delayed in
completing Lessor's Work beyond November 15, 1992.
1.1.1 LESSOR'S WORK. Subject to the provisions of this Lease,
Lessor agrees to perform the work set forth in Exhibit B attached hereto and
made a part hereof ("Lessor's Work") within four (4) weeks after the
Commencement Date. Lessor shall perform Lessor's Work in a good and workmanlike
manner, in compliance with all applicable laws, rules, regulations and
requirements of public authorities having jurisdiction and in accordance with
the specifications therefor set forth in Exhibit X. Xxxxxx agrees that it will
perform Lessor's Work in a manner so as not to unreasonably interfere with the
performance by Lessee of Lessee's Work. Lessor
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shall notify Lessee when Lessor shall have substantially completed Lessor's Work
and promptly thereafter, Lessor and Lessee shall meet to inspect the same and to
agree upon a punch list of items to be completed by Lessor within the following
thirty (30) days. Any such inspection by Lessee pursuant to this Section 1.1.1
shall not relieve Lessor from liability for any latent defects in Lessor's Work.
Lessor warrants Lessor's Work against defects in workmanship for a period of one
(1) year from completion of same.
1.1.2 LESSEE'S WORK. Subject to the provisions of this Lease,
Lessee agrees to perform the work set forth in Exhibit C attached hereto and
made a part hereof ("Lessee's Work") prior to the Rent Commencement Date. In
connection with the performance of Lessee's Work, Lessor shall pay to Lessee no
later than January 2, 1993 a non-refundable construction allowance equal to ten
thousand four hundred (10,400) dollars (the "Construction Allowance"). If Lessor
shall not pay the Construction Allowance to Lessee on or before January 2, 1993,
Lessee may set off the amount of such Construction Allowance against future Rent
and other charges due under this Lease. Lessee agrees to perform Lessee's Work
in a good and workmanlike manner, in compliance with all applicable laws, rules,
regulations and requirements of public authorities having jurisdiction and in
accordance with the specifications therefor set forth in Exhibit C. Any failure
by Lessee to complete Lessee's Work prior to the Rent Commencement Date shall
not relieve Lessor of its obligations under this Lease.
1.2 EXTENSION TERM. On the condition that Lessee is not in default
beyond applicable grace periods of any of its material covenants or obligations
under this Lease, Lessee shall have the option to extend the Term of this Lease
for the Extension Term set forth in the Lease Data Exhibit by giving Lessor
notice as set forth in such Lease Data Exhibit. Upon the receipt of such notice
by Lessor, the Term shall be extended upon all of the terms and conditions of
this Lease, except as herein otherwise specifically provided to the contrary. If
Lessee either fails to exercise such option or exercises such option, Lessee
shall thereafter have no further extension right or option.
ARTICLE 2
Rent
2.1 PAYMENT OF RENT. Rent shall be paid to Lessor in legal tender of
the United States of America at the address of Lessor set forth in the Lease
Data Exhibit, or such other address as Lessor may, from time to time, inform
Lessee in writing. Lessee shall pay Rent as set forth in the Lease Data Exhibit
in monthly installments without prior demand.
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ARTICLE 3
Appurtenant Rights and Reservations
3.1 COMMON AREAS. Lessee, and its employees, agents, contractors,
business invitees, customers and other invitees, shall have, as appurtenant to
the Premises, the non-exclusive right in common with other tenants and their
employees, agents, contractors, business invitees, customers and other invitees
to use parking areas, roadways, and all other common areas shown on Exhibit A,
but such rights shall always be subject to (a) reasonable rules and regulations
from time to time established by Lessor by suitable notice; provided that such
rules and regulations are uniformly applicable to all other tenants and are
enforced in a non-discriminatory manner, and (b) to the right of Lessor to
designate and change from time to time areas and facilities so to be used;
provided that such changes shall not adversely affect access to or egress from
the Premises, the visibility of the Premises or its signs or reduce the number
of parking spaces in the common areas.
Excepted and excluded from the Premises are all perimeter walls (except the
inner surfaces thereof), the roof or ceiling thereof (except the inner surface
thereof) and the floor (except the inner surface thereof), but the store front
and any exits or openings required from time to time by applicable law solely
as a result of Lessee's specific use of the Premises as provided in the Lease
Data Exhibit are not excluded from the Premises and are a part thereof for all
purposes. Lessee agrees that Lessor shall have the right to place in the
building of which the Premises are a part (but in such manner so as to reduce to
a minimum interference with Lessee's use of the Premises) utility lines, pipes
and the like, to serve the Premises or premises other than the Premises, and to
replace and maintain and repair such utility lines, pipes, and the like, in,
over and upon such building. Lessor reserves the right to use the roof and
exterior walls of the Premises to construct above or adjacent to the Premises;
provided that such construction does not materially adversely affect access to
or egress from the Premises, the visibility of the Premises or its signs or
reduce the number of parking spaces in the common areas. Lessee shall install
and maintain proper access panels in any special ceiling installed by Lessee in
the Premises to provide access to any such facilities above the ceiling. Lessee
shall have no right to use the roof for any purpose, except the placement of
signs. The respective responsibilities of the parties for repairs are set forth
in Article 7 hereof.
ARTICLE 4
Use of Premises
4.1 GENERALLY. The Premises shall be used and occupied only (and for
no other purpose) for the use set forth on the Lease Data
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Exhibit, except that Lessee may maintain on the Premises storage facilities and
administrative offices incidental to the conduct of its business.
4.2 COMPLIANCE WITH LAWS. Lessee shall, at its sole cost and expense,
comply with all federal, state and municipal statutes, ordinances and
regulations and all reasonable requirements of Lessor's insurers in force during
the Term and affecting the Premises; provided, however, that Lessee shall not be
responsible for the structural repairs or capital improvements to the Premises
required by such statutes, ordinances, regulations and requirements if the same
shall not be necessitated by Lessee's specific use of the Premises or set forth
in the Lease Data Exhibit. Further, Lessee shall not make, commit or suffer any
waste of or to the Premises.
4.3 LESSOR'S REPRESENTATIONS AND WARRANTIES. Lessor warrants and
represents that it owns the Premises and the common areas free and clear of any
mortgages and all other liens or encumbrances which would materially adversely
interfere with Lessee's conduct of business at the Premises for the uses
permitted herein. Lessor further warrants and represents that (a) the uses set
forth in the Lease Data Exhibit are permitted under applicable building and
zoning laws, (b) to the best of Lessor's knowledge and belief, there is no
asbestos in the Premises, except that there may be asbestos in the floor tiles
of the Premises, and (c) as of the Commencement Date, the Premises and the
buildings in which the Premises are situated are in compliance with all
applicable laws, rules, regulations and requirements of public authorities
having jurisdiction. Lessee acknowledges that except as otherwise set forth in
this Lease, neither Lessor nor any representative or agent thereof has made any
representation or warranty to Lessee as to the suitability of the Premises for
the conduct of Lessee's business.
4.4 FLOOR LOADS. Lessee shall not place any load upon any floor of
the Premises which exceeds the floor load capacity of the Premises calculated on
a square foot basis. If Lessee shall install business machines or mechanical
equipment, such installation shall be at Lessee's sole expense. The moving and
installation of such machines and equipment shall be at the sole risk and hazard
of Lessee, and Lessee agrees to indemnify and save Lessor harmless against and
from all liability, loss, injury, claim or suit resulting directly or indirectly
from the installation or maintenance of such machines and equipment.
4.5 RADIUS RESTRICTIONS. Lessor, from and after the date of execution
and delivery of this Lease, and for so long as this Lease remains in full force
and effect, agrees not to enter into any leases of space within one-half (1/2)
mile of the Premises which grants to any tenant the right to use such leased
space for the primary purpose of selling paper goods or party goods.
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ARTICLE 5
Rules and Regulations
5.1 GENERALLY. Lessee further agrees to conform to the following
provisions during the entire Term of this Lease:
(a) No auction, fire, distress or bankruptcy sales may be
conducted within the Premises without the prior consent of Lessor, such consent
not to be unreasonably withheld, delayed or conditioned;
(b) Until removal is effected, Lessee shall keep all garbage or
refuse in the Premises suitably covered in an exterior container so that the
same is not visible to the public. Lessee shall be responsible for the removal
of all rubbish and similar waste generated at the Premises; and
(c) Except as provided in Section 16.1 and Exhibit C, Lessee
will not place on the exterior of exterior walls (including both interior and
exterior surfaces of windows and doors), or the roof of the Premises, any signs
or any symbol, advertisement, neon light, other light or other object or thing
within public view outside of the Premises without the prior consent of Lessor,
except that Lessee may, without Lessor's consent, place professionally printed
signs and displays on the doors and in the windows of the Premises. Where
Lessor's consent shall be required, such consent shall not be unreasonably
withheld, delayed or conditioned.
ARTICLE 6
Assignment, Subletting and Encumbrances
6.1 GENERALLY. Lessee shall not assign or sublet the Lease or any
portion of the Premises without the express written consent of Lessor, such
consent not to be unreasonably withheld, delayed or conditioned. No such consent
by Lessor or any assignment or subletting pursuant to such consent by Lessor
shall operate to release or discharge the obligations of Lessee under this
Lease.
6.2 EXCEPTIONS. Lessee acknowledges that a transfer of more than a
majority of the stock owned in the Lessee's corporation or the issuance of
additional shares of stock in the corporation which would result in the current
stockholders' interests in the corporation to be reduced to less than fifty (50)
percent, shall be considered to be an assignment of this Lease requiring
Lessor's written consent, such consent not to be unreasonably withheld, delayed
or conditioned. Notwithstanding anything to the contrary set forth herein,
Lessor's consent shall not be required in the event of any assignment or
subletting to any parent, subsidiary or affiliate of Lessee or any successor to
Lessee's business, whether by merger, consolidation or acquisition of
substantially all of the
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assets of Lessee. Furthermore, the provisions of Section 6.2 above shall no
longer be applicable in conjunction with, and from and after, the effective date
of a registration statement filed by Lessee under the Securities Act of 1933 in
conjunction with a public offering of shares of stock of Lessee.
ARTICLE 7
Maintenance, Repair and Alteration
7.1 SURRENDER OF THE PREMISES. Lessee shall, upon the expiration or
sooner termination of this Lease, surrender the Premises to Lessor broom clean
and in good order and condition, ordinary wear and tear, damage by fire or other
casualty not required to be restored by Lessee, eminent domain and the willful
or negligent acts or omissions of Lessor or Lessor's employees, agents or
contractors excepted.
7.2 GENERALLY. Except when the same is the responsibility of Lessor
as elsewhere in this Lease provided (e.g., in the event of fire, casualty,
eminent domain or damage due to the willful or negligent acts or omissions of
Lessor, its employees, agents or contractors), throughout the Term, Lessee
shall, at its sole cost and expense, maintain, the Premises and every part
thereof (including, without limitation, heating, air conditioning and
ventilating systems; lighting; non-structural storefronts; window casements;
plate glass; ceilings; stairways and corridors; doors; glazings; plumbing;
electrical wiring and conduits) in order that the Premises shall at all times
during the Term be in good and sanitary condition and repair. Lessor represents
and warrants to Lessee that on the date of delivery of possession of the
Premises to Lessee, the Premises and every part thereof (including, without
limitation, those items specified in the immediately preceding sentence) shall
be in good and sanitary condition and repair. The Lessor shall replace and/or
repair any such property or fixture in the event the same shall fail to operate
properly due to normal wear and tear or the negligent acts or omissions of
Lessor or Lessor's employees, agents, contractors or invitees. Notwithstanding
the foregoing language, Lessor agrees to perform any and all repairs to the HVAC
system for a period of ninety (90) days after delivery of possession of the
Premises to Lessee.
7.3 ALTERATIONS, ADDITIONS AND IMPROVEMENTS. Lessee may (but shall
not be required to), from time to time during the Term and the Extended Term,
make alterations, additions or improvements to the interior, non-structural
portions of the Premises, including, but not limited to, the relocation of
Lessee's trade fixtures and interior decorating of the Premises (provided the
same do not affect the structural integrity of the Premises). Except as may be
permitted by the terms of Exhibit C, Lessee shall not make any structural
alterations, additions or repairs to the Premises (or which would or might
affect the structure or integrity of the
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Premises or mechanical or electrical systems serving the Premises or which would
void any guarantee or warranty (i.e., roof bond)) without Lessor's prior written
consent, such consent not to be unreasonably withheld, delayed or conditioned.
7.3.1 Except as set forth in Section 1.1.2, each such item of
work, construction, addition or alteration, accomplished by Lessee shall be at
its sole cost and expense.
7.4 LESSOR'S RESPONSIBILITIES. Notwithstanding the provisions above,
Lessor shall maintain and promptly make all necessary repairs to the exterior
walls, foundation, slab floors, utility conduits and roof of the Premises and
all common areas described in Section 3.1, unless such repairs are caused by the
willful or negligent acts or omissions of Lessee, its agents, employees or
contractors, in which case Lessee shall pay to Lessor the reasonable cost of
such maintenance and repair as additional rent.
7.5 SELF-HELP. If any repair, replacement or maintenance is required
to be made by a party hereunder, the other party may demand by written notice
that such defaulting party make the same forthwith; and if such party fails or
neglects to commence such repair, replacement or maintenance and complete the
same within thirty (30) days after such demand, the other party may (but shall
not be required to) make or perform such repairs, replacements, or maintenance
for the account and at the expense of such defaulting party. Lessor or its
representative may enter the Premises (forcibly, if necessary) at any time after
the expiration of such thirty (30) day period to take such measures as may be
needed. The performance by Lessor of any of the same shall not be construed as
an eviction of Lessee, nor work an abatement of rent, nor release Lessee from
prompt fulfillment of any of the covenants under this Lease. Notwithstanding the
foregoing, if a party reasonably believes an emergency to exist, such party may
elect to act hereunder immediately and without notice to the other party or with
expiration of such thirty (30) day period.
7.6 COMMON AREAS. Lessor shall be responsible for repairs and
replacements and all repavings of the parking areas, including striping when
necessary. Lessee shall be responsible, together with any occupant of the
adjacent building, for the removal of snow and ice from the common parking areas
and for keeping the same in clean order. Lessee acknowledges that as of the date
hereof, the parking area is in satisfactory condition.
ARTICLE 8
Utilities
8.1 PAYMENT OF UTILITIES. Lessee shall pay when due all bills for
gas, electricity, water, sewer and other utilities used
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on the Premises on and after the Commencement Date until the expiration of the
Term or the Extension Term, as the case may be. Lessor represents that the
Premises are served by separate meters for the utilities used in said Premises,
in compliance with the outline specifications and requirements of the utility
suppliers.
ARTICLE 9
Real Estate Taxes
9.1 GENERALLY. As additional and further rent, Lessee agrees to pay
all real estate taxes (except all income or profit, franchise, corporate,
personal property, capital levy, capital stock, excess profits, transfer,
revenue, estate, inheritance, gift and devolution or succession taxes) and
future betterment assessments, if any; which may be assessed with respect to the
Premises during the Term and Extension Term (if any) of this Lease with an
appropriate adjustment in the event that the Rent Commencement Date begins on
other than the first day of a tax year, and an appropriate adjustment in the
event that the Term or the Extension Term, as the case may be, ends in other
than the last day of a tax year. All betterments assessments shall be paid over
the longest period allowed by a applicable law.
Lessor and Lessee agree that the pertinent real estate tax xxxx for the
Premises issued by the City of Boston has as a reference Parcel No. 10637-000
(the "Taxed Parcel"). Lessee agrees to pay one-twelfth (1/12) of ninety-five
(95) percent ("Lessee's Portion") of the amount of the current xxxx for said
real estate taxes to Lessor on the first day of each month, together with the
Rent due for such month. Lessor represents and warrants to Lessee on the date
hereof that Lessee's Portion of such taxes equals approximately forty thousand
(40,000) dollars and that Lessor is currently pursuing a tax rebate from the
City of Boston in the amount of ten thousand (10,000) dollars, which rebate will
be credited toward Lessee's Portion of such taxes for the same period as herein
provided. If, during the Term or the Extension Term, as the case may be, the
balance of the Taxed Parcel shall be improved, altered, rehabilitated or in any
other manner changed so as to increase the taxable value of such portion of the
Taxed Parcel, Lessee's Portion shall be equitably adjusted by the parties. All
payments of taxes shall be based upon the most recent tax xxxx and Lessor and
Lessee shall make an appropriate adjustment within thirty (30) days of receipt
by Lessee of a copy of the applicable xxxx for any difference between the
estimated payments made hereunder and the actual taxes due for any such period.
Lessor shall make timely payment of all real estate taxes to the City of Boston.
Lessee's Portion of the proceeds of any abatement received by Lessor, net of
Lessee's pro rata share of reasonable costs and expenses incurred in obtaining
the same, shall be paid to Lessee. Lessee may, in the name of Lessor, seek and
apply for an abatement of taxes for any tax period included in the Term and the
Extension
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Term (if any). Lessor will use reasonable efforts to assist and cooperate with
Lessee in applying for and seeking any such abatement.
If Lessee shall fail to pay Lessee's Portion of such taxes as herein
provided, beyond the applicable grace period therefor, Lessor shall have the
right to pay any and all such unpaid taxes without being obligated to inquire
into the validity thereof, and to treat the sums so paid as additional rent for
said Premises and the same shall become due and payable forthwith from Lessee to
Lessor.
ARTICLE 10
Indemnification and Public Liability Insurance
10.1 INDEMNIFICATION OF LESSOR. Lessee will save Lessor harmless, and
will exonerate and indemnify Lessor, its officers, directors, shareholders,
partners, trustees, beneficiaries, agents and employees from and against (a) any
and all claims, liabilities or penalties asserted by or on behalf of any person,
firm, corporation or public authority arising from Lessee's breach of this Lease
or on account of or based upon any injury to person or loss of or damage to
property sustained, occurring or emanating from the Premises resulting from
willful or negligent acts or omissions by Lessee or Lessee's employees, agents
or contractors, and (b) any and all costs, expenses (including reasonable
attorneys' fees), and liabilities incurred in or in connection with any such
claim, or any action or proceeding brought thereon; and in case any action or
proceeding shall be brought against Lessor by reason of any such claim, Lessee,
upon notice from Lessor, shall, at Lessee's expense, resist or defend such
action or proceeding and employ counsel therefor reasonably satisfactory to
Lessor. Lessee's obligations under this Section 10.1 shall be insured either
under the Comprehensive General Liability Insurance required under Section 10.3
below, or by a contractual insurance rider or other coverage; and certificates
of insurance in respect thereof complying with the provisions of Article 10
shall be provided to Lessor by Lessee.
10.2 INDEMNIFICATION OF LESSEE. Lessor will indemnify, defend and save
Lessee and Lessee's officers, directors, shareholder, partners, trustees,
beneficiaries, employees and agents harmless from and against (a) any and all
claims, liabilities, damages or penalties asserted by or on behalf of any
person, firm corporation, public authority or other entity arising from Lessor's
breach of this Lease or on account of or based upon any injury to person(s) or
loss of or damage to property sustained, or occurring or emanating from the
common areas which are the result of or related to the willful or negligent acts
or omissions of Lessor or Lessor's employees, agents, contractors and, (b) any
and all costs, expenses (including reasonable attorneys' fees) and liabilities
incurred in
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connection with any such claim or action brought with respect to the foregoing;
and in case any action or proceeding shall be brought against Lessee by reason
of any such claim, Lessor, upon notice from Lessee, shall, at Lessor's expense,
resist or defend such action or proceeding and employ counsel therefor
reasonably satisfactory to Lessee.
10.3 INSURANCE. Lessee agrees to maintain in full force from the date
upon which Lessee first enters the Premises as provided in Section 1.1.1
throughout the Term of this Lease, and thereafter so long as Lessee is in
occupancy of any part of the Premises, policies of public liability and property
damage (to third party's property) insurance under which Lessor (and Lessor's
mortgagee and such other persons as are in privity of estate with Lessor as may
be set out by notice from time to time) and Lessee are named as insureds, and
under which the insurer agrees to indemnify and hold Lessor and those in privity
of estate with Lessor harmless from and against all cost, expense and/or
liability arising out of or based upon any and all claims, accidents, injuries
and damages mentioned in Article 10, including, without limitation, those
arising out of the provisions of Section 10.1 hereof, in the broadest form of
such coverage from time to time available in the jurisdiction in which the
Premises are located. Each such policy may be in the form of a blanket policy
and shall be non-cancellable and non-amendable with respect to Lessor and
Lessor's said mortgagee without ten (10) days' prior notice to Lessor, and a
duplicate original or certificate thereof shall be delivered to Lessor. The
minimum limits of liability of such insurance shall be one million (1,000,000)
dollars for bodily injury (or death) to any one person, two million (2,000,000)
dollars for bodily injury (or death) to more than one person, and five hundred
thousand (500,000) dollars with respect to damage to property.
10.4 LESSEE'S RISK. To the maximum extent this agreement may be made
effective according to law, Lessee agrees to use and occupy the Premises at
Lessee's own risk; and Lessor shall have no responsibility or liability for any
loss of or damage to fixtures or other personal property of Lessee except when
caused by the willful or negligent acts or omissions of Lessor or Lessor's
employees, agents, contractors or invitees, or when caused by Lessor's failure
to perform its obligations under this Lease. The provisions of this Section
shall be applicable from and after the execution of this Lease until the end of
the Term of this Lease and during such further period as Lessee may use or be in
occupancy of any part of the Premises, including the Extension Term (if any).
10.5 INJURY CAUSED BY THIRD PARTIES. To the maximum extent this
agreement may be made effective according to law, Lessee agrees that Lessor
shall not be responsible or liable to Lessee, or to those claiming by, through
or under Lessee, for any loss or damage that may be occasioned by or through the
acts or omissions
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of persons occupying adjoining premises or any part of the premises adjacent to
or connecting with the Premises, or otherwise, or for any loss or damage
resulting to Lessor or those claiming by, through or under Lessee, or its or
their property, from the breaking, bursting, stopping or leaking of electric
cables and wires, and water, gas, sewer or steam pipes.
10.6 HAZARDOUS WASTE. Anything in this Lease to the contrary
notwithstanding, Lessee shall not use or occupy, nor permit or suffer the
Premises or any part thereof to be used or occupied for any unlawful or illegal
business, use or purpose, nor in such manner as to constitute a nuisance of any
kind, nor for any use which is noxious or offensive because of emissions of
noise, smoke, dust or odors, nor permit the emission or release of any
objectionable chemical substance in violation of any applicable law or
regulation nor for any purpose or in any way in violation of the certificate of
occupancy or of any applicable laws, ordinances, rules or regulations (the
"Requirements"). Lessee shall not suffer any act to be done by it, or by anyone
claiming by, through or under Lessee, or any condition to exist on the Premises
or any part thereof (other than conditions existing on the Commencement Date or
caused by Lessor, its agents, employers or contractors) or any articles or
substances to be brought, generated, stored or released thereon in a manner
which violates M.G.L. c. 21E, the Comprehensive Environmental Response and
Liability Act of 1980, as amended, or any regulations adopted thereunder.
10.7 INDEMNIFICATION OF LESSEE. Lessor shall indemnify and hold Lessee
harmless from and against (a) any claims for injury to person or property
arising or occurring on the Common Areas, except for claims arising from the
negligent acts or omissions of Lessee or Lessee's employees, agents or
contractors, and (b) any claims or liability relating to existing environmental
conditions at the Premises on the Commencement Date, and (c) any claims for
injury to person or property due any failure of Lessor, its agents, employees or
contractors, to perform any of its obligations set forth in this Lease.
10.8 INDEMNIFICATION OF LESSOR. Lessee shall indemnify and hold Lessor
harmless from and against any claims for injury to person or property arising
from (a) the willful or negligent acts or omissions of Lessee or Lessee's
employees, agents or contractors, and (b) Lessee's failure to perform any of its
obligations set forth in this Lease.
ARTICLE 11
Casualties
11.1 CASUALTY INSURANCE AND EXTENDED COVERAGE. Lessor shall maintain
in full force and effect throughout the term, a policy (or policies) of fire,
casualty and extended coverage insurance
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insuring the premises located at 0000-0000 XXX Xxxxxxx, Xxxx Xxxxxxx, XX,
including the Premises and the buildings in which the Premises are situated,
against loss by or damage due to risks covered by the broad form policy (such
coverage shall include the risks of fire, lighting, extended coverage, vandalism
and malicious mischief and such other risks as Lessor may deem appropriate).
Lessee shall reimburse Lessor for sixty-seven (67) percent ("Lessee's Share") of
the reasonable cost of such insurance.
11.1.1 Nothing herein shall preclude any such policy from
bearing loss payee endorsements in favor of the holders of any mortgage or deed
of trust encumbering the interests of Lessor hereunder; provided that the
proceeds of such insurance shall be available for the restoration of the
Premises and the buildings in which the Premises are situated as provided below.
11.1.2 Proceeds from said fire and casualty insurance policy
shall be payable to Lessor, subject to the prior rights of Lessor's mortgagee to
hold such proceeds subject only to reasonable regulation regarding conditions to
the disbursement and application thereof for restoration of the Premises and the
buildings in which they are situated, or in the case of a termination of this
Lease, to apply such proceeds in accordance with the terms of such mortgage.
11.2 MINOR DAMAGE. If, after commencement of the Term of this Lease,
and prior to the expiration or earlier termination hereof, the Premises shall be
partially damaged (as distinguished from "substantially damaged", as that term
is hereinafter defined) by fire or casualty, Lessor shall promptly proceed to
restore the damaged portion of the Premises to the condition in which that such
portion of the Premises was in at the time of such damage, but Lessor shall not
be responsible for any delay which may result from causes beyond the reasonable
control of Lessor; provided, however, that Lessee may terminate this Lease by
notice to Lessor if such restoration is or cannot be completed within six (6)
months after the occurrence of the fire or casualty.
11.3 SUBSTANTIAL DAMAGE. If, after the commencement of the Term of
this Lease and prior to the expiration or earlier termination hereof, the
Premises or the buildings in which the Premises are situated shall be
substantially damaged (as that term is hereinafter defined) by fire or casualty,
the risk of which is covered by Lessor's insurance, Lessor shall, promptly after
such damage and collection of the insurance proceeds therefor, expend so much as
may be necessary to restore (consistent, however, with zoning laws and building
codes then in existence), the Premises and the buildings in which the Premises
are situated to the condition in which the Premises were in at the time of such
fire or casualty; but Lessor shall not be responsible for any delay which may
result from causes beyond the reasonable control of Lessor; provided, however,
that Lessee may terminate this Lease by notice to Lessor
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if such restoration is not or cannot be completed within six (6) months after
the occurrence of the fire or casualty. In the event that Lessor shall terminate
the Lease as herein provided, Lessor shall, promptly after such termination,
reimburse Lessee for the unamortized value of Lessee's leasehold improvements
and fixtures. If Lessor shall restore the Premises as provided herein or in
Section 11.2 hereof, Lessee shall not be required to open for business and pay
Rent until thirty (30) days after Lessor delivers possession of the restored
Premises to Lessee.
In the event that the Premises are substantially damaged by reason of a
casualty for which insurance is not required to be maintained hereunder, Lessor
shall have the right, at its election, to terminate this Lease by notice to
Lessee given within thirty (30) days after the date of any such damage or
destruction.
Lessor covenants that it shall, in any event, maintain insurance against
fire or other casualties in an amount equal to one hundred (100) percent of the
replacement value of the buildings in which the Premises are situated.
11.4 SUBSTANTIAL DAMAGE DEFINED. The term "substantial damage" and
"substantially damaged", as used herein, shall refer to damage of such a
character that the same cannot, in ordinary course, reasonably be expected to be
repaired within one hundred twenty (120) days from the time that such work would
commence. Such term shall also include a substantial diminution in parking
facilities serving the Premises.
11.5 DAMAGES DURING LAST YEAR OF TERM OR EXTENDED TERM, IF EXERCISED.
If the Premises shall be substantially damaged by fire or casualty within the
last year of the Term of this Lease, or the last year of the Extension Term if
so exercised by Lessee, either party shall have the right, by giving notice to
the other not later than sixty (60) days after such fire or casualty, to
terminate this Lease, whereupon this Lease shall terminate as of the date of
such notice with the same force and effect as if such date were the date
originally established as the expiration date hereof; provided, however, that
Lessor may not terminate this Lease during the last year of the Term of this
Lease if Lessee has then elected, or within thirty (30) days of such damage or
destruction, elects to extend the term hereof, in which event, Lessor shall
proceed diligently to restore the Premises as provided above.
11.6 ABATEMENT OF RENT. If the Premises shall be damaged by fire or
casualty, Rent and other charges payable by Lessee shall xxxxx for the period
during which by reason of such damage, there shall be substantial interference
with the operation of Lessee's business at the Premises or access thereto,
having regard to the extent to which Lessee may be required to discontinue or
limit Lessee's business at the Premises.
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11.7 LESSEE'S SHARE OF INSURANCE PREMIUMS. In addition to all other
payments herein provided to be made by Lessee to Lessor, Lessee shall pay Lessor
Lessee's Share of any insurance premiums payable by Lessor on account of hazard
and liability insurance coverage on the Premises; provided, however, that Lessee
shall not be responsible for paying any portion of such premiums to extent that
the same is increased over the cost of insurance for general retail uses (e.g.,
flammable uses, restaurant use or other more dangerous uses).
The cost of insurance premiums shall be payable by Lessee thirty (30) days
after notice from Lessor of the amount thereof, such notice to be accompanied by
a statement of the amount from the insurer. Lessor shall have the same rights
and remedies for the non-payment by Lessee of insurance premiums as for
non-payment of Rent.
ARTICLE 12
Lessor's Access to Premises
12.1 GENERALLY. Lessor shall have the right to enter the Premises at
all reasonable hours for the purpose of inspecting or of making repairs to the
same, provided that, except in the case of an emergency, Lessor shall give
Lessee reasonable advance written matter of its intent to enter the Premises and
shall not interfere with the conduct of Lessee's business on the Premises.
ARTICLE 13
Exhibition of Space to Prospective Tenants
13.1 GENERALLY. For a period commencing eight (8) months prior to the
expiration of the Term of this Lease, Lessor may have reasonable access to the
Premises at all reasonable hours as provided in Section 12.1 for the purpose of
exhibiting the same to prospective tenants.
ARTICLE 14
Eminent Domain
14.1 RIGHTS OF TERMINATION FOR TAKING. If (a) the Premises, or such
portion thereof as to render the balance (if reconstructed to the maximum extent
practicable under the circumstances) unsuitable for Lessee's purposes, shall be
taken by condemnation or right of eminent domain, then Lessor and Lessee shall
each have the right to terminate this Lease by notice to the other of its desire
to do so, or (b) a substantial portion of the parking facilities servicing the
Premises, or convenient access from a public way to the buildings in which the
Premises are situated, shall be taken by condemnation or right of eminent domain
then Lessee shall have the
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right to terminate this Lease by notice to Lessor, provided that any such notice
shall be given no later than thirty (30) days after the occurrence of such
taking or act of eminent domain.
Should any part of the Premises be so taken or condemned and such taking or
condemnation occurs after the commencement of the Term or Extension Term of this
Lease, and should this Lease not be terminated in accordance with the foregoing
provision, Lessor agrees promptly after such taking or condemnation and the
determination of Lessor's award on account thereof to expend so much as may be
necessary of the net amount which may be awarded to Lessor in such condemnation
proceedings to restore (consistent, however, with zoning laws and building codes
then in existence) the Premises to an architectural unit as nearly like their
condition prior to such taking as shall be practicable or to restore the parking
facilities or access to the buildings in which the Premises are situated, as the
case may be. Should the net amount so awarded to Lessor be insufficient to cover
the cost of such restoration, Lessor or Lessee may, but shall have no obligation
to, supply the amount of such insufficiency and proceed with such restoration
with all reasonable diligence, or Lessor may terminate this Lease by giving
notice to Lessee not later than a reasonable time after Lessor has determined
the estimated net amount which may be awarded to Lessor and the estimated cost
of such restoration.
In the event that Lessor shall terminate the Lease as provided in this
Section 14.1, Lessor shall, promptly after such termination, reimburse Lessee
for the unamortized value of Lessee's leasehold improvements and fixtures. If
Lessor shall restore the Premises as provided in this Section 14.1, Lessee shall
not be required to open for business and pay Rent until thirty (30) days after
Lessor delivers possession of the restored Premises to Lessee.
14.2 PAYMENT OF AWARD. Lessor shall have and hereby reserves and
excepts, and Lessee hereby grants and assigns to Lessor, all rights to recover
for damages to the Premises and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking, damage or
destruction, as aforesaid, and by way of conforming the foregoing, Lessee hereby
grants and assigns and covenants with Lessor to grant and assign, to Lessor all
rights to such damages or compensation. Nothing contained herein shall be
construed to prevent Lessee from prosecuting in any condemnation proceedings a
claim at Lessee's expense for the value of any of Lessee's usual trade fixtures
installed in the Premises by Lessee and for relocation expenses; provided that
such action shall not affect the amount of compensation otherwise recoverable by
Lessor from the taking authority.
14.3 ABATEMENT OF RENT. In the event of any such taking of the
Premises, Rent and all other charges, including Lessee's
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Portion of taxes and Lessee's Share of insurance premiums according to the
nature and extent of the damage sustained, shall be abated in an amount
proportionate to the Lessee's loss in use of the Premises or the parking areas
and means of access thereto.
ARTICLE 15
Non-Subrogation
15.1 GENERALLY. Insofar as, and to the extent that, the following
provisions may be effective without invalidating or making it impossible to
secure insurance coverage from responsible companies doing business in the
locality in which the Premises are located (even though extra premium may result
therefrom), Lessor and Lessee mutually agree that, with respect to any hazard
which is covered by insurance then being carried by them, respectively, the
party carrying such insurance and suffering such loss releases the other of and
from any and all claims with respect to such loss. The parties further mutually
agree that their respective insurance companies shall have no right of
subrogation against the other on account of any such loss. If, at the request of
one party, this release and non-subrogation provision is waived, then the
obligation of reimbursement shall cease for such period of time as such waiver
shall be effective, but nothing contained in this Section 15.1 shall derogate
from or otherwise affect releases elsewhere herein contained of either party for
claims.
ARTICLE 16
Sign Use
16.1 LESSOR'S CONSENT REQUIRED. Lessee shall not affix, attach or
otherwise place any sign on the roof, exterior or interior portions of the
windows (except as may be permitted by Section 5.1(a) and Exhibit C hereof),
exterior walls, corridors or any other area of the Premises without the prior
written consent of Lessor, such consent not to be unreasonably withheld, delayed
or conditioned. Subject to compliance with all applicable legal and reasonable
insurance requirements, Lessee may affix a sign bearing its trade name on the
front of the Premises and on the roof of the Premises where the existing sign is
located.
16.2 PYLON SIGN. Lessor shall also afford Lessee the use of the pylon
sign that identifies the occupants at the entranceway to the area of which the
Premises are a part. Lessee acknowledges that such use is in common with the
other tenants of such area and that the Lessor's decision as to the location of
Lessee's sign thereon shall be final; provided, however, that Lessee's sign
shall be equal in size to that of other tenants and shall be given equal
prominence by Lessor.
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ARTICLE 17
LESSEE'S DEFAULT
17.1 DEFAULTS; REMEDIES. If Lessee shall (a) default in the payment of
rent, monies, or charges required to be paid or caused to be paid to Lessor and
such default shall continue for more than ten (10) days after written notice
from Lessor that such payments are due and payable, (b) default in the
observance and/or performance of any of the other terms, obligations or
conditions this Lease and any such default shall continue for more than thirty
(30) days after Lessor has given Lessee written notice of such default;
provided, however, there shall be no such default if Lessee has, within such
thirty (30) day period, commenced to cure such default and shall thereafter
diligently pursue such cure, or (c) there shall be any execution or other
judicial levy upon the leasehold estate hereunder and the same shall not be
removed within one hundred twenty (120) days, (d) there shall be any assignment
of said leasehold estate for the direct or indirect benefit of creditors of
Lessee, (e) there shall be executed any agreement whereby Lessee loses control
of its business to a committee of its creditors, (f) there shall be judicial
appointment of a receiver or similar officer to take possession of said
leasehold estate or the Premises and such receiver or other officer is not
dismissed within ninety (90) days after appointment, or (g) there shall be a
filing of any petition by, for or against Lessee under any chapter of the
Federal Bankruptcy Act which is not dismissed within ninety (90) days after
filing, Lessor may, at any time thereafter, and without demand or notice, enter
into and upon the Premises or any part thereof in the name of the whole and
repossess the same as of Lessor's former estate, and expel Lessee and those
claiming through or under Lessee and remove its or their effects (forcibly, if
necessary) without being guilty in any manner of trespass, and without prejudice
to any remedies which might otherwise be used for arrears of Rent or preceding
breach of covenant, and upon entry as aforesaid, Lessee shall have the right by
notice to Lessee of Lessor's desire so to do, forthwith to terminate this Lease.
In the event of any such termination, Lessee will indemnify Lessor on a
monthly basis against all loss of Rent and other payments provided herein to be
paid by Lessee to Lessor between the time of termination and the expiration of
the Term of this Lease. It is understood and agreed that (a) at the time of the
termination or at any time thereafter, Lessor may rent the Premises for a term
which may expire after the expiration of the Term of this Lease without
releasing Lessee from any liability whatsoever, (b) Lessee shall be liable for
any reasonable expenses incurred by Lessor in connection with obtaining
possession of the Premises and in connection with any reletting, including, but
without limitation, reasonable attorneys' fees and reasonable brokers' fees, and
(c) any monies collected from reletting shall be applied first to the foregoing
expenses and then to payment of Rent.
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ARTICLE 18
Default by Lessor
18.1 DEFAULTS; REMEDIES. If Lessor shall fail to observe and/or
perform any of the terms, obligations or conditions of this Lease to be observed
and/or performed by Lessor, and such default shall continue for more than thirty
(30) days after written notice of such default by Lessee to Lessor, Lessee may,
at its sole and absolute discretion, (a) perform such obligations and set off
the cost thereof against future Rent, or (b) terminate this Lease upon notice to
Lessor thereof; provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days are required for performance, Lessor shall
not be in default if Lessor has commenced performance within such thirty (30)
day period and thereafter diligently prosecutes the same to completion.
ARTICLE 19
Waiver
19.1 GENERALLY. Failure on the part of Lessor or Lessee to complain of
any action or non-action on the part of the other, no matter how long the same
may continue, shall never constitute a waiver by such party of any of their
respective rights hereunder. Further, no waiver at any time of any of the
provisions hereof by Lessor or Lessee shall be construed as a waiver of any of
the other provisions hereof, and a waiver at any time of any of the provisions
hereof shall not be construed as a waiver of any subsequent time of the same
provisions. The consent or approval of Lessor or Lessee to or of any action by
the other requiring such consent or approval shall not be construed to waive or
render unnecessary such party's consent or approval to or of any subsequent
similar act by the other.
No payment by Lessee, or acceptance by Lessor, of a lesser amount than
shall be due from Lessee to Lessor shall be treated otherwise than as a payment
on account. The acceptance by Lessor of a check for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and Lessor
may accept such check without prejudice to any other rights or remedies which
Lessor may have against Lessee.
ARTICLE 20
Subordination
20.1 GENERALLY. Lessee further covenants and agrees to subordinate its
interest in this Lease to any present or future mortgage which may be placed
against the land of which the Premises are a part and to execute and deliver
upon demand to Lessor, but at
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Lessor's sole cost and expense, such instrument or instruments to effect such
subordination; provided, however, that the holder of each such mortgage to which
this Lease is to be subordinated, shall consent in writing to this Lease and
agree that Lessee shall not be disturbed in the possession of the Premises for
any reason other than one which would entitle Lessor to terminate this Lease in
accordance with the provisions hereof. Lessor shall enter into, and shall cause
the holder of each such mortgagee to enter into, a non-disturbance agreement in
form and substance satisfactory to Lessee.
ARTICLE 21
Mechanic's and Other Liens
21.1 DISCHARGE OF LIENS. Lessor and Lessee each agree immediately to
discharge (either by payment or by filing the necessary bond, or otherwise) any
mechanics' materialmen's or other lien against the Premises and/or Lessee's or
Lessor's interest therein, as the case may be, which liens may arise out of any
payments due for, or purported to be due for, any labor, services, materials,
supplies or equipment alleged to have been furnished to or for Lessor or Lessee
in, upon or about the Premises.
ARTICLE 22
Quiet Enjoyment
22.1 QUIET ENJOYMENT OF THE PREMISES. Provided that Lessee shall not
be in material default of any terms, covenants and conditions on Lessee's part
to be observed and performed under this Lease, Lessee shall peaceably and
quietly have and hold the Premises, without hindrance or molestation by any
person or persons lawfully claiming by, through or under Lessor.
ARTICLE 23
Invalidity of Particular Provisions
23.1 SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstances, shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
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ARTICLE 24
Provisions Binding, Etc.
24.1 SUCCESSORS AND ASSIGNS. Except as herein otherwise expressly
provided, the terms hereof shall be binding upon and shall inure to the benefit
of the successors and assigns, respectively, of Lessor and Lessee and, if Lessee
shall be an individual, upon and to his heirs, executors, administrators,
successors and assigns. Each term and each provision of this Lease to be
performed by Lessee shall be construed to be both a covenant and a condition.
The reference contained to successors and assigns of Lessee is not intended to
constitute a consent to assignment by Lessee, but has reference only to those
instances in which Lessor may later give consent to a particular assignment as
required by those provisions of Article 6 hereof.
ARTICLE 25
Recording
25.1 NOTICE OF LEASE. Lessee agrees not to record this Lease, but each
party hereto agrees upon the execution of this Lease to execute a Notice of
Lease in form recordable and complying with applicable law and reasonably
satisfactory to Lessor's and Lessee's attorneys. In no event shall such document
set forth the rental or other charges payable by Lessee. Any such Notice of
Lease shall expressly state that it is being executed pursuant to the provisions
contained in this Lease, and is not intended to vary the terms and conditions
hereof.
ARTICLE 26
Notices
26.1 ADDRESSES; METHOD OF DELIVERY. Whenever, by the terms of this
Lease, notice shall or may be given either to Lessor or to Lessee, such notice
shall be in writing and shall be sent by registered or certified mail, postage
prepaid, return receipt requested.
If intended for Lessor, addressed to Lessor at the address set forth on the
first page of this Lease, with a copy to Lessor in care of Xxxxxx and Pinta, 00
Xxxxxxxx Xxx, Xxxxxx, XX 00000 (or to such other address or addresses as may
from time to time hereafter be designated by Lessor by like notice).
If intended for Lessee, addressed to Lessee at the address set forth on the
first page of this Lease (or to such other address or addresses as may from time
to time be designated by Lessee) with a copy to Xxxxxx Xxxxxx, P.C., Posternak,
Xxxxxxxxxx & Xxxx, 000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, XX 00000.
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All such notices shall be effective three (3) days after being deposited in
the United States mail within the continental United States and six (6) days if
sent outside the continental United States.
ARTICLE 27
Paragraph Headings
27.1 GENERALLY. The paragraph headings throughout this Lease are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction
or meaning of the provisions of this Lease.
ARTICLE 28
Surrender of Premises
28.1 CONDITION OF THE PREMISES. Upon the expiration or earlier
termination of the Term of this Lease or the Extension Term (if any), Lessee
shall quit and surrender the Premises in neat and clean condition and in good
order and repair, reasonable wear and tear, damage by fire, casualty or eminent
domain or damage resulting from the willful or negligent acts or omissions of
Lessor or Lessor's employees, agents, contractors or invitees excepted, together
with all work, alterations and additions (including, without limitation, all
heating, ventilating, air-conditioning, lighting and plumbing equipment and
fixtures which may have been made or installed in, on or to the Premises prior
to or during the term of this Lease, but excluding trade fixtures, equipment and
furniture brought into the Premises prior to or during the Term or Extension
Term of this Lease, which Tenant may remove upon the expiration of the Term or
Extension Term of this Lease, as the case may be. Lessee agrees to repair any
and all material damages to the Premises resulting from such removal. Further,
any or all of the property to be removed by Lessee from the Premises on or
before the expiration of the Term or Extension Term of this Lease, as the case
may be, which is not so removed shall become the exclusive property of Lessor.
ARTICLE 29
Self Help
29.1 LESSOR'S RIGHT. Lessor shall have the right, but shall not be
required to do so, to pay such sums or do any act which requires the expenditure
of monies which may be necessary or appropriate by reason of the failure or
neglect of Lessee to perform any of the provisions of this Lease (such right
(other than performance requiring the payment of monies) to be exercised upon
the expiration of applicable grace periods, except when caused by
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an emergency), and in the event of the exercise of such right by Lessor, Lessee
agrees to pay to Lessor forthwith upon demand such sums; and if Lessee shall
default in such payment, Lessor shall have the same rights and remedies as
Lessor has hereunder for the failure of Lessee to pay Rent.
ARTICLE 30
Holding Over
30.1 GENERALLY. Any holding-over by Lessee after the expiration of the
term of this Lease shall be treated as a tenancy at sufferance and the Rent and
other charges specified herein shall be on the terms and conditions set forth in
this Lease, so far as applicable.
ARTICLE 31
Governing Law
31.1 CHOICE OF LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of
Massachusetts.
ARTICLE 32
Miscellaneous Lessor Obligations
32.1 SHOWROOM LIGHT CANISTERS. Lessor shall use its best efforts to
obtain from the current lessee of the Premises, for and on behalf of Lessee, at
Lessor's sole cost and expense, light canisters currently installed in the
"showroom" area of the Premises.
32.2 AIR CONDITIONING UNIT. Lessor shall use its best efforts to
obtain from the current lessee of the Premises, for and on behalf of Lessee, at
Lessor's sole cost and expense, the air conditioning unit currently installed on
the roof of the Premises toward the rear thereof.
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IN WITNESS WHEREOF, said Lessor and said Lessee have duly executed this
Lease to take effect as a sealed instrument. This instrument may be executed in
any number of counterpart copies each of which counterpart copies shall be
deemed as an original for all purposes.
LESSOR:
E & D REALTY TRUST
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Trustee and
not individually
LESSEE:
THE BIG PARTY, INC.
By: /s/ Xxx X. Xxxxxxxx
------------------------------
Xxx X. Xxxxxxxx, Its President
-26-
EXHIBIT A
Leased Premises
-27-
[GRAPHIC]
EXHIBIT B
Lessor's Work
Lessor will perform the following, at Lessor's sole cost and expense, in a
manner and using methods reasonable acceptable to Lessee:
1. Construction and equipping of a handicap accessible toilet in the Premises.
2. Repairs and improvements to the canopy over the exterior portion of the
buildings of which the Premises are a part.
3. Repairs or maintenance to and, if necessary, replacement of all heating,
ventilating and air conditioning equipment servicing the Premises in order
to render the same in good working order and condition on and as of the
Rent Commencement Date, including, but not limited to repair or, as
necessary, replacement of the air conditioning unit in the 2,800 square
foot "side room" of the Premises. Lessor shall provide Lessee with a
warranty with respect to the work performed by Lessor thereon and the good
working order and condition of such heating, ventilating and air
conditioning systems for a period of ninety (90) days after the date on
which Lessee opens for business at the Premises.
4. Inspection of and, if necessary, repairs to or replacement of the roof of
the Premises to prevent possible leaks.
5. Removal of refuse from the Premises and cleaning of the same to broom clean
condition by the Rent Commencement Date.
6. Removal of floor platforms in the main "showroom" of the Premises.
-28-
EXHIBIT C
Lessee's Work
Lessee will perform the following in a manner and using methods reasonably
acceptable to Lessor:
1. Construction of a handicap access ramp at the entranceways to the Premises
pursuant to Lessee's plans and specifications therefor.
2. Interior construction installations and improvements to Lessee's
specifications; provided, however, that Lessor shall be responsible for the
installation of a handicap accessible toilet in the Premises as provided in
Exhibit B.
3. Erection and placement of all exterior signs at the Premises, except the
pylon referenced in Section 16.2 of this Lease.
-29-
NOTICE OF LEASE
Notice is hereby given pursuant to
Massachusetts General Laws, Chapter 183,
section 4, of a lease containing, inter alia, the following terms and
conditions:
LANDLORD: Xxxxxx X. Xxxxxx, Trustee of E & D
Realty Trust under Declaration of Trust
filed with the Suffolk County Registry
District of the Land Court as Instrument
No. 387181, having an address c/o Xxxxxx
X. Xxxxxx, 00 Xxxxxxx Xxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxxxx 00000.
TENANT: The Big Party, Inc., a
Massachusetts
corporation, having an address x/x Xxx
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000.
DATE
OF LEASE: October 9, 1992.
DEMISED PREMISES: A portion of the premises situated at
0000-0000 XXX Xxxxxxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxxx being shown as Buildings 2
and 3 on Exhibit A attached to the
Lease, such premises being more
particularly described in Schedule A
attached hereto and made a part hereof.
TERM
OF LEASE: The term commences on October 16, 1992
and expires on December 31, 2002,
subject to the right of Tenant, pursuant
to certain conditions contained in the
lease, to extend such term for an
additional period of five (5) years from
January 1, 2003 to December 31, 2007.
EXECUTED as an instrument under seal this 9th day of October, 1992.
LANDLORD: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx Trustee as
aforesaid and not individually
TENANT: THE BIG PARTY, INC.
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Xxx X. Xxxxxxxx, its President
and Treasurer
[SEAL]
COMMONWEALTH OF
MASSACHUSETTS
Suffolk, ss. October 9, 1992
Then personally appeared the above-named Xxxxxx X. Xxxxxx, Trustee of E & D
Realty Trust, and acknowledged the foregoing instrument to be his free act and
deed, as Trustee as aforesaid, before me,
/s/ [ILLEGIBLE]
----------------------------------------
Notary Public
My commission expires: 1/28/94
COMMONWEALTH OF
MASSACHUSETTS
Suffolk, ss. October 9, 1992
Then personally appeared the above-named Xxx X. Xxxxxxxx, the President and
Treasurer of The Big Party, Inc., and acknowledged the foregoing instrument to
be the free act and deed of said corporation, before me,
/s/ [ILLEGIBLE]
----------------------------------------
Notary Public
My commission expires: 1/28/94
2
SCHEDULE A
Legal Description
That certain parcel of land with the buildings thereon situated in that part of
Boston formerly West Roxbury, in the County of Suffolk and Commonwealth of
Massachusetts, bounded and described as follows:
EASTERLY by the westerly line of Veterans of Foreign Wars Parkway,
eighty five and 19/100 (85.19) feet;
SOUTHWESTERLY by land now or formerly of Xxxxxx X. Xxxxxxxxxx and of
Boston Caledonian Club, ninety-five and 96/100 (95.96) feet;
and
NORTHERLY by lot C-3 as shown on the plan hereinafter mentioned,
forty-four and 16/100 (44.16) feet.
Said land is shown as lots C-4 and C-5 on a subdivision plan No. 5921-F drawn by
X. X. Xxxxxxxx, Surveyor for the Land Court, dated September 11, 1948, as
approved by the Court, filed with certificate of title No. 53490.
The above described land is subject to a sewer easement as set forth in a taking
by the Board of Metropolitan Sewerage Commissioners, dated June 5, 1897 recorded
with Suffolk Deeds Book 2448, Page 6, so far as the same may be applicable.
The above described land is also subject to a taking by the Commonwealth of
Massachusetts, Department of Public Works, for the laying out of a State
Highway, dated December 18, 1934, filed and registered as Document No. 123575,
and subject also to a taking by said Common-wealth of
Massachusetts, Department
of Public Works, for slope easement for state highway dated May 14, 1935, filed
and registered as Document No. 125066, so far as the same may be applicable.
The above described land is also subject to rights in the way as shown on said
plan as set forth in deed from Xxxxxxx X. Xxxxxx, Trustee of the Calgrove Trust
to Xxxxxxx Xxxxxx et al, dated June 11, 1954, filed and registered as Document
No. 212131.
For title see Certificate of Title No. 85468, Book 423, Page 68 for the Registry
District of Suffolk County.
ALSO, another parcel of land with the buildings thereon in that part of Boston,
Suffolk County,
Massachusetts, called West Roxbury, being shown as Lot marked
"22,810 sq. ft." on a plan entitled "Plan of Land, Boston, Mass. (West Roxbury
District)" dated Sept. 11, 1948, X. X. Xxxxxxxx, Sur., duly recorded with
Suffolk Deeds Book 6968, Page 8, and bounded and described as follows:
NORTHEASTERLY by Veterans of Foreign Wars Parkway, as shown on said plan,
ninety-four and 65/100 (94.65) feet more or less;
-2-
SOUTHEASTERLY by other land now or formerly of Xxxxxx X. Xxxxxx, Trustee,
by a straight line running along the outside of the
southeasterly wall of the building now on the mortgaged
premises, so as to include the said building, one hundred
forty (140) feet more or less;
SOUTHWESTERLY by land now or formerly of B. E. Xxxxxx, Xx., thirty-five
(35) feet more or less;
WESTERLY by the Xxxxxxx River, one hundred fifty (150) feet more or
less;
NORTHWESTERLY by the northerly line of a fifteen-foot way, shown on said
plan, sixty (60) feet, more or less; and
NORTHERLY by Lots C-4 and C-5, as shown on said plan, ninety-five and
96/100 (95.96) feet.
Subject to the rights of the Quineboquin Camping Club in and over the parcel
marked "15-foot way" on said plan, for all purposes for which ways may be used
in the City of Boston, in common with all others thereto entitled.
ALSO another parcel of land with the buildings thereon in the West Roxbury
District of said Boston, bounded and described as follows:
EASTERLY by Veterans of Foreign Wars Parkway, Seventy-five (75) feet;
SOUTHERLY by Lot 1A as shown on a plan entitled "Plan of Land, Boston,
Mass. (West Roxbury District)" dated April 7, 1956 and
recorded with Suffolk Deeds in Book 7147, Page 596, Two
Hundred Fifty (250) feet;
NORTHWESTERLY by Xxxxxxx River as shown on said plan, One Hundred Fifty
(150) feet more or less;
EASTERLY by land now or formerly of Xxxxxx X. Xxxxxx, Trustee of
Parkway Trust, Thirty-four and 90/100 (34.90) feet, more or
less;
NORTHERLY by said land now or formerly of Xxxxxx X. Xxxxxx, Trustee,
One Hundred Forty (140) feet.
For the grantors' title to the two preceding parcels see deed of Parkway
Furniture Shops, Inc., dated March 29, 1974, recorded with Suffolk Deeds, Book
8702, Page 576.
FIRST AMENDMENT TO LEASE
Reference is made to a Lease dated October 9, 1992 by and between
Xxxxxx X. Xxxxxx, Trustee of E & D Realty Trust, under a Declaration of Trust
filed with the Suffolk County Registry District of the Land Court as Instrument
No. 387181, whose address is 00 Xxxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxxx
("Lessor") and iParty Retail Stores, Inc., a Delaware corporation having an
address at 0000 XXX Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000 ("iParty").
iParty succeeded to the interest of the original Lessee, The Big Party, Inc.,
pursuant to an Order of the Bankruptcy Court dated August 16, 2000.
For One Dollar ($1.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree to amend the Lease as follows:
1. The Lease Data Exhibit, comprised of pages 1 through 3 of the Lease,
is hereby deleted and replaced with the Amended and Restated Lease Data Exhibit
attached hereto as Schedule A. The parties hereto acknowledge that the guaranty
referenced in the original Lease Data Exhibit is no longer in force or effect.
2. Paragraph 7.2 of the Lease is hereby deleted, and the following new
Paragraph 7.2 is hereby inserted in lieu thereof: "7.2 GENERALLY. Except where
the same is the responsibility of Lessor as elsewhere provided in this Lease,
throughout the term, Lessee shall, at its sole cost and expense, maintain the
Premises including, without limitation, lighting, window casements, plate glass,
ceilings, stairways and corridors, doors, heating, air conditioning and
ventilation systems, in order that the Premises shall at all times during the
term be in good and sanitary condition and repair. The Lessor shall replace
and/or repair any property or fixture otherwise to be maintained by Lessee if
the same shall fail to operate properly due to normal wear and tear or the
negligent acts or omissions of Lessor or Lessor's employees, agents,
contractors, or invitees."
3. The Lease is hereby further amended by inserting the following new
Article 33 at the end of Article 32 thereof:
Article 33. Option on Adjacent Space.
33.1 If during the term of this Lease, the adjacent premises
presently occupied by a furniture store (the "Expansion Space") become available
due to the expiration or termination of the current Lease, the Lessor shall
offer to lease to Lessee said adjoining premises upon the same terms and
conditions set forth herein, for the balance of the term of this Lease, except
that Rent payable by Tenant to Landlord shall be equal to the amount established
by Landlord equal to the then fair market annual rent for leases with a
comparable term in comparable retail buildings in the town or city in which the
building is located. Lessee may accept such offer by written notice to Lessor,
delivered within ten days of Lessee's receipt of Lessor's offer. Upon acceptance
of the offer, Lessor and Lessee shall enter into an amendment of the Lease to
incorporate the additional premises.
33.2 Landlord shall establish the Rent for the Expansion Space (and,
if there is one, for the Extension Term) by giving Tenant prompt written notice
of the amount of Rent. If Tenant disputes the amount of Rent so established by
Landlord, Tenant shall notify Landlord of Tenant's objection to said amount
within ten (10) days from the receipt of Landlord's notice to Tenant. Such
notice shall include the name of an M.A.I. appraiser, selected by Tenant, who
has consented to participate in determination of fair market rent. If Tenant so
notifies Landlord, then the amount of Rent shall be decided by two M.A.I.
appraisers, one selected by Landlord and the one selected by Tenant, based on
the then fair market annual rent for leases with a comparable term in comparable
retail buildings in the town or city in which the Building is located. Within
ten (10) days of Landlord's receipt of Tenant's objection notice, Landlord shall
notify the Tenant of the name of an M.A.I. appraiser, selected by Landlord, who
has consented to participate in determination of fair market rent. Unless the
two appraisers shall have reached a decision with ten (10) days after their
selection and acceptance, they shall select an impartial third M.A.I. appraiser
and notify Landlord and Tenant of such selection. The three appraisers shall
render their decision within ten (10) days following the selection of the third
appraiser and shall notify Landlord and Tenant thereof. The unanimous written
decision of the two first chosen (without selection and participation of a third
appraiser), or otherwise the written decision of a majority of the three
appraisers chosen as herein provided shall be conclusive and binding upon
Landlord and Tenant. Landlord and Tenant shall divide equally all costs of this
appraisal.
4. Each party hereto agrees upon the execution of this Lease Amendment to
execute a Notice of Amendment to Lease in recordable form and complying with
applicable law and reasonably satisfactory to Lessor's and Lessee's attorneys.
In no event shall such document set forth the rental or other charges payable by
Lessee. The Notice of Amended Lease shall expressly state that it is being
executed pursuant to the provisions contained in the Lease, and is not intended
to vary the terms and conditions hereof.
5. Except as hereby amended, the Lease shall remain in full force and
effect as originally written. The agreements of the parties herein shall be
binding upon and enure to the benefit of the parties and their respective
heirs, legal representatives, and assigns. This First Amendment may be executed
in any number of counterparts, each of which shall be deemed an original and all
of which together shall comprise but a single document.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals as of the 5th day of June, 2002.
LESSOR: E & D Realty Trust
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, Trustee and not
Individually
LESSEE: iParty Retail Stores, Inc.
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Xxx X. Xxxxxxxx, its CEO
SCHEDULE A
AMENDED AND RESTATED LEASE DATA EXHIBIT
EXECUTION DATE: As of June 05, 2002
LESSOR: E & D Realty Trust
and Original c/o Xxxxxx X. Xxxxxx
Address 00 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
LESSEE: iParty Retail Stores, Inc.
and Address 0000 XXX Xxxxxxx
Xxxx Xxxxxxx, XX 00000
PREMISES: Approximately 20,521 square feet in
Buildings 2 and 3 located at 0000 XXX
Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxxx as
shown on the plan annexed to the Lease
as Exhibit A together with the right to
use in common with others entitled
thereto the parking and other common
areas shown on Exhibit A.
TERM: The period commencing October 16, 1992
(the "Commencement Date") and ending on
December 31, 2012.
EXTENSION TERM: One (1) five (5) year option to extend
the Lease to be exercised by notice from
Lessee to Lessor no later than eight (8)
months prior to the expiration of the
Term.
RENT:
Lease Year 10 (which Lease Year shall $147,735.00 per annum; payable in equal
include the additional period, if any, monthly installments of $12,311.00 on
ending December 31, 2002) the first day of each month and pro rata
at such rate for any fraction of a
month.
Lease Year 11 $205,210.00 per annum; payable in equal
monthly installments of $17,100.83 on
the first day of each month.
Lease Years 12 through 20 In each Lease Year commencing with Lease
Year 12, annual rent shall equal the
lesser of (i) 1.05 times the prior Lease
Year's annual rent, or (ii) an amount
equal to the prior Lease Year's annual
rent, multiplied by a fraction, the
numerator of which is the Consumer Price
Index for December 1 of the
just completed Lease Year, and the
denominator of which (or "Base CPI") is
the Consumer Price Index for the date
exactly one year prior thereto. The term
"Consumer Price Index" or "CPI" shall
mean the Consumer Price Index for All
Urban Consumers and
Boston-Brockton-Nashua, All Items
(1982-84=100) as published by the Bureau
of Labor Statistics of the United States
Department of Labor. In the event that
the CPI is not then in existence, the
parties shall use such equivalent price
index as is published by any successor
governmental agency then in existence,
or, if none, then by such
non-governmental agency as may then be
publishing such an equivalent price
index, in lieu of and adjusted to the
CPI. If the CPI shall cease to use the
1982-84 average of 100 as the basis of
calculation or if a substantial change
is made in the terms or numbers of items
contained in the CPI, the Base CPI shall
be adjusted to conform to such change,
using such computation thereof, if
available, as shall be employed by the
United States Department of Labor in
computing same.
EXTENSION TERM RENT: In accordance with Article 33.2 of the
Lease, Rent for the Extension Term shall
be determined by market conditions at
such time for comparable premises but in
no event shall Rent be less than the
rent payable in Lease Year 20, payable
in equal monthly installments on the
first day of each month.
USE: Lessee agrees that the Premises shall be
used for the purpose of a party goods
and paper goods store, other retail
uses, and uses related thereto,
including offices and storage.
LESSOR: LESSEE:
E & D Realty Trust iParty Retail Stores, Inc.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxxx
------------------------------- --------------------------------
Xxxxxx X. Xxxxxx, Trustee Xxx X. Xxxxxxxx, its CEO
and not individually
SECOND AMENDMENT TO LEASE
Reference is made to a Lease dated October 9, 1992 by and between Xxxxxx X.
Xxxxxx, Trustee of E & D Realty Trust, under a Declaration of Trust filed with
the Suffolk County Registry District of the Land Court as Instrument No. 387181,
whose address is 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("Lessor") and
iParty Retail Stores Corp., a Delaware corporation having an address at 0000 XXX
Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxxx 00000 ("iParty"). iParty succeeded to the
interest of the original Lessee pursuant to an Order of the Bankruptcy Court
dated August 16, 2000. The Lessor and iParty entered into a First Amendment of
Lease dated June 5, 2002.
For One Dollar ($1.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree to amend the Lease as follows:
1. Article 33, Option on Adjacent Space, as added to the Lease by said
First Amendment of Lease, is hereby deleted in its entirety, thereby terminating
iParty's option to lease the adjacent space as described in said Article.
2. Except as hereby amended, the Lease, as amended, shall remain in full
force and effect as originally written. The agreements of the parties herein
shall be binding upon and enure to the benefit of the parties and their
respective heirs, legal representatives, and assigns. This Second Amendment may
be executed in any number of counterparts, each of which shall be deemed an
original and all of which together shall comprise but a single document.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals as of the 31st day of December, 2002.
LESSOR: E & D Realty Trust
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, Trustee and not
Individually
LESSEE: iParty Retail Stores Corp.
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Xxx X. Xxxxxxxx, its CEO
