Exhibit 10.33
SUBMISSION NOT AN OPTION
THE SUBMISSION OF THIS LEASE FOR EXAMINATION AND NEGOTIATION DOES NOT CONSTITUTE
AN OFFER TO LEASE, A RESERVATION OF, OR OPTION FOR THE PREMISES AND SHALL VEST
NO RIGHT IN ANY PARTY. TENANT OR ANYONE CLAIMING UNDER OR THROUGH TENANT SHALL
HAVE THE RIGHTS TO THE PREMISES AS SET FORTH HEREIN AND THIS LEASE BECOMES
EFFECTIVE AS A LEASE ONLY UPON EXECUTION, ACKNOWLEDGEMENT AND DELIVERY THEREOF
BY LANDLORD AND TENANT, REGARDLESS OF ANY WRITTEN OR VERBAL REPRESENTATION OF
ANY AGENT, MANAGER OR EMPLOYEE OF LANDLORD TO THE CONTRARY.
LANDLORD: Xxxxxxx Xxx Xxxxxx, as he is Trustee of
216-000 Xxxxxxx Xxxxxx Realty Trust,
under Declaration of Trust dated May 24, 1996
recorded with Suffolk County Registry of Deeds
in Book 20592, Page 119.
TENANT: Xxxxxxxxx & Xxxx, Inc.
PREMISES: Approximately 1,420 rentable square feet of
space located on the upper level retail location of the
building located at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx
XXXXXXXXX & XXXX, INC.
TABLE OF CONTENTS
Page
ARTICLE I Basic Lease Provisions and Exhibits............. 1
ARTICLE II Premises........................................ 3
ARTICLE III Term; Landlord's and Xxxxxx's Work.............. 3
ARTICLE IV Rent............................................ 5
ARTICLE V Tenant's Covenants and Landlord's Obligations... 7
ARTICLE VI Condition of Premises........................... 10
ARTICLE VII Insurance....................................... 11
ARTICLE VIII Casualties and Eminent Domain................... 12
ARTICLE IX Defaults and Remedies........................... 13
ARTICLE X Subordination................................... 15
ARTICLE XI Miscellaneous Provisions........................ 15
11.1 Parties Bound................................... 15
11.2 Landlord's Liabilities and Additional Rights.... 16
11.3 Covenants and Conditions........................ 16
11.4 Costs and Expenses.............................. 16
11.5 Holding Over.................................... 16
11.6 Quiet Enjoyment................................. 17
11.7 No Brokerage.................................... 17
11.8 Certificates.................................... 17
11.9 Notices......................................... 17
11.10 No Waiver....................................... 17
11.11 Force Majeure................................... 17
11.12 Recording....................................... 17
11.13 Paragraph Headings.............................. 18
11.14 Governing Law................................... 18
11.15 Separability; Construction and Interpretation... 18
11.16 When Lease Becomes Binding; Entire Agreement.... 18
11.17 Execution....................................... 18
EXHIBITS
EXHIBIT A - Plan of Premises................................. 19
EXHIBIT B - Legal Description of Property.................... 20
EXHIBIT C - Landlord's Work.................................. 21
EXHIBIT D - Tenant's Work.................................... 22
EXHIBIT E - Rules and Regulations............................ 23
ARTICLE 1 - BASIC LEASE PROVISIONS
Each reference in this Lease to titles or terms contained in Article I
shall be deemed to incorporate the applicable definitions or data. The Exhibits
attached to this Lease are incorporated by reference.
Date of Lease: January 20, 1998
Commencement Date: March 20, 1998 (Sixty (60) days from Lease
execution date)
Rent Commencement Date: March 20, 1998 (Same as Commencement Date)
Landlord: Xxxxxxx Xxx Xxxxxx, as he is Trustee of 000-000
Xxxxxxx Xxxxxx Realty Trust, u/d/t dated May 24,
1996 recorded with Suffolk County Registry of
Deeds in Book 20592, Page 119.
Landlord's Mailing Address: 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000
Tenant: Xxxxxxxxx & Xxxx, Inc.
Tenant's Mailing Address: c/o Xxxxx Xxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000
Premises: Approximately 1,420 rentable square feet of space
located on the upper retail floor, as shown on
Exhibit A attached hereto, in the building (the
"Building") currently containing approximately
9,150 rentable square feet of space located in
Boston, Suffolk County, Massachusetts, with an
address of 000-000 Xxxxxxx Xxxxxx, and situated on
the property ("Property") legally described in the
metes and bounds description attached hereto as
Exhibit B.
Term: Thirty-Six (36) months in addition to any partial
month at the commencement of the Term, unless
sooner terminated or extended as provided herein,
with one (1) three (3) year option.
Permitted Use: The sale and retail of wine, beer and wine and
cigar accessories and ancillary office use.
Base Rent: Lease Year Annually Monthly
1 $73,840.00 $6,153.33
2 $76,680.00 $6,390.00
3 $78,327.20 $6,527.27
Lease Year: Twelve (12) month period beginning on the
Commencement Date and each anniversary of the
Commencement Date; provided that if the
Commencement Date is not the first day of the
calendar month, the first Lease Year shall include
the partial calendar month at the beginning of
the Term and subsequent Lease Years shall commence
on the anniversary of the first day of the full
calendar month during the Term.
Option to Extend: Tenant shall have the option to extend this Lease
for an additional three (3) year term upon written
notice to Landlord on or before the first day of
the sixth (6th) calendar month before the end of
the initial Lease Term.
Option Rent: Lease Year Annually Monthly
4 $80,684.40 $6,723.70
5 $83,496.00 $6,958.00
6 $86,847.20 $7,237.27
Additional Rent: All sums, other than Base Rent, due from Tenant
pursuant to the terms of this Lease.
Tax Base: Fiscal Year ending June 30, 1997
Operating Cost Base: Calendar Year 1997
Pro Rata Share: Initially, Fifteen and 52/100 (15.52%) percent.
Tenant's share shall be determined from time to
time during the Term by Xxxxxxxx's architect or
surveyor and shall be based on the ratio between
the rentable square footage of the Premises and
one-hundred (100%) percent of the rentable square
footage of the space in the Building.
Utilities: Tenant shall have the right to use the utilities
which service the Premises as of the Commencement
Date provided all costs relating to the furnishing
and use of utilities shall be paid by Tenant,
including without limitation, electricity and
heating, water, sewer, ventilation and air
conditioning.
Security Deposit: One (1) month's Base Rent, which amount shall
initially be $6,153.33 and shall be adjusted to
reflect changes in Base Rent.
Permit Period: Tenant shall have ninety (90) days following the
date of full execution hereof to obtain any and all
necessary liquor licenses and use permits from the
appropriate authorities (the "Licenses"). If Xxxxxx
is unable to obtain said Licenses within this
ninety (90) day period, Tenant may request and,
upon a showing that all required Licenses have been
applied for and diligently pursued, shall be
granted a thirty (30) days extension. If for any
reason Tenant is unable to obtain the required
Licenses within the ninety (90) day period (or 120
day period if so extended) then Tenant may
terminate this Lease in which event neither party
shall have any further obligation to the other but,
Landlord shall retain the Deposit as a termination
fee. Notwithstanding any provisions hereof,
Xxxxxx's obligation to pay rent hereunder shall
commence on the Rent Commencement Date.
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Broker: To be paid by Xxxxxxxx and to be divided equally
between Xxxxxxxx Realty and The Dartmouth Co. and
to be paid as follows: (i) five (5%) percent of the
Annual Rent for the first year of the Lease, and
(ii) four (4%) percent of the Annual Rent for each
of the second and third years of the Lease. In the
event the Term shall be extended as provided in
Section 3.2 of this Lease, Xxxxxxx Realty and the
Dartmouth Co. shall be paid a brokerage commission
at the time of Tenant's notification of Lease
Extension of two (2%) percent of the Annual Rent
for each of the years of the extended term (the
fourth, fifth, and sixth year of the Term).
Provided, however, such brokerage commission shall
be due and payable as provided herein only, if as
and when Landlord and Tenant have executed this
Lease and provided further no brokerage commission,
fee or other charge shall be due for any year(s) of
the Term (as the same may be extended) following
Xxxxxx's Default.
ARTICLE II - PREMISES
2.1 Premises. On the terms of this lease, Landlord leases to Tenant, and
Xxxxxx accepts from Landlord, the Premises.
2.2 Common Areas. The term "Common Areas" shall mean all areas within the
Property which are available for the common use of tenants of the Property from
time to time, as designated by Landlord, and which are not leased or held for
the exclusive use of Tenant or other tenants including, but not limited to,
sidewalks, loading areas, and corridors. Landlord may, from time to time,
change the size, location, nature and use of any of the Common Areas including,
without limitation, converting Common Areas into leasable area, and increasing
or decreasing Common Areas and/or facilities. Tenant acknowledges that such
activities may result in an inconvenience to Tenant. Xxxxxx further
acknowledges that Landlord may from time to time undertake work and/or repairs
to the Property and or the Premises and that said work and/or repairs may result
in an interruption to Xxxxxx's business. Notwithstanding such inconvenience or
interruption, Tenant shall not be entitled to (a) any reduction in rent, or (b)
damages caused by Landlord, notwithstanding any interference of Xxxxxx's
business upon the Premises or any inconvenience caused by construction work.
Notwithstanding the provisions hereof, (a) Landlord shall not unreasonably
interfere with Xxxxxx's use of the Premises for the Permitted Use hereunder, and
(b) in the event Tenant shall be substantially prevented from undertaking the
Permitted Use hereunder as a result of Landlord's undertaking said work or
repairs to the Premises (other than work or repairs necessitated by Xxxxxx's,
Xxxxxx's employees, licensees or invitees use of the Premises) for a period
exceeding forty eight (48) business hours, Tenant shall be entitled to an
abatement of Base Rent. Landlord acknowledges that Landlord shall exercise best
efforts not to unreasonably interfere with Xxxxxx's use of the Premises for the
Permitted Use hereunder during the months of November and December.
Tenant shall have the non-exclusive right (in common with other tenants,
their employees, agents and invitees, and all others to whom Landlord has
granted or may grant such rights) to use the Common Areas for the intended
purposes, subject to reasonable rules and regulations established
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by Landlord from time to time. Tenant shall abide by such rules and regulations
as are applicable to all tenants within the Building, shall cause others who use
the Common Areas with Tenant's express or implied permission to abide by
Xxxxxxxx's rules and regulations, and shall not interfere with the rights of
Landlord, other tenants or any other person entitled to use the Common Areas. At
any time, Landlord may close any Common Area to perform any acts in the Common
Area as, in Landlord's judgment, are desirable to improve the Property or to
protect Landlord's rights with respect to the Property. Landlord shall maintain
the Common Areas in good order, condition, replacement and repair, subject to
reasonable wear and tear. Notwithstanding the provisions hereof, Landlord shall
not unreasonably interfere with Xxxxxx's use of the Premises for the Permitted
Use hereunder.
ARTICLE III - TERM; LANDLORD'S AND TENANT'S WORK
3.1 Term. This Lease is for the Term beginning on the Commencement Date. If
Xxxxxxxx is unable to deliver possession on the Commencement Date, Xxxxxx's sole
remedy shall be an abatement of rent for a period of time from the Rent
Commencement Date equal to the period of delay from the Commencement Date until
delivery of possession of the Premises to Tenant, provided there shall be no
abatement if Landlord's failure results from Xxxxxx's acts or omissions. In the
event Landlord is unable to deliver possession of the Premises to the Tenant in
or within six (6) months from the Rent Commencement Date, Tenant may terminate
the Lease and Landlord shall thereupon refund to Tenant the Deposit and the
Landlord and Tenant shall have no further recourse to one another at law and in
equity.
3.2 Option to Terminate. Tenant acknowledges and agrees that Tenant at its
sole cost and expense and using an attorney of Landlord's designation, shall
promptly make application for and diligently pursue and obtain any and all
licenses, permits, authorizations, including without limitation appropriate
liquor licenses, (collectively, the "Licenses") from all appropriate authorities
for undertaking the Permitted Use hereunder. Tenant shall have the option to
terminate this lease by written notice to Landlord in the event Tenant shall not
receive the Licenses in or within ninety (90) days from the date of this lease
(the "Licensing Period"), in which event Landlord shall retain the Security
Deposit as a termination fee and neither party hereunder shall have any further
obligation to the other hereunder.
In the event Tenant shall not have received all Licenses in or within the
Licensing Period and provided Tenant has promptly applied for and diligently
pursued obtaining the Licenses, as provided hereinabove, Tenant may so notify
Landlord in writing and request an extension of the Licensing Period for an
additional thirty (30) day period, which additional thirty (30) day period shall
be granted by Landlord, provided Tenant shall not be in default of this Lease.
3.3 Option to Extend. Tenant shall have the option to extend the Term (the
"Extension Option") for one (1) three (3) year period (the "Extension Period")
by giving notice to Landlord of Tenant's exercise of its Extension Option not
later than the first day of the sixth (6th) calendar month prior to the
expiration of the initial Term, provided that, at the time such Extension Option
is exercised and at the commencement of the Extension Period, (i) Tenant shall
not be in default under any of the terms of this Lease, (ii) Tenant shall not
have assigned this Lease or sublet any portion of the Premises, except as
permitted herein, and (iii) Tenant continues to occupy all portions of the
Premises. Any failure by Tenant to give timely notice of the exercise of its
Extension Option shall be deemed to be an irrevocable waiver of all right to
exercise its Extension Option. All of the terms, conditions, covenants and
agreements
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contained herein shall apply during the Extension Period, except that
(i) Base Rent for the Premises during the Extension Period shall be as set forth
above as Option Rent, (ii) Landlord shall not be obligated to undertake any
additional leasehold improvements or to provide any so called "free rent" or
other tenant inducements, and (iii) Tenant shall have no further option to
extend this Lease.
3.4 Landlord's Work. The Premises shall be delivered "AS IS", subject to
all recorded matters, all applicable zoning, and Laws and Insurance Regulations,
as defined in Section 5.1(a), and Landlord shall not be required to make any
repairs or replacements (hereafter jointly "Repairs") or improvements,
installations, physical changes, alterations or additions (hereafter
collectively "Improvements") to the Premises. Xxxxxx acknowledges and agrees
that Xxxxxxxx has no work to perform in or on the Premises. Tenant further
acknowledges that Xxxxxx has inspected (or had the opportunity to inspect) the
Premises, is satisfied with the condition thereof and waives any existing
defects in the condition of the Premises or Property (latent or otherwise).
3.5 Tenant's Work. Upon delivery of possession, Tenant shall (a) promptly
perform Tenant's work, if any, as set forth in Exhibit D attached hereto and
equip the Premises with all necessary trade fixtures and personal property, and
(b) open for business as soon after the Commencement Date as reasonably
practicable. Tenant's Work shall be done in a good and workmanlike manner using
first-class new materials and equipment, and in accordance with the requirements
of all applicable Laws and Insurance Regulations as defined in Section 5.1 (a).
If Tenant fails to commence Tenant's Work within ten (10) days after delivery of
possession or commence use of the Premises for its business purposes within
sixty (60) days after the Commencement Date, Landlord may terminate the Lease.
Tenant shall not make or perform, or permit the making or performance of,
any Improvements by Tenant in or about the Premises except as provided herein or
as provided in Section 6.1 of this Lease. Tenant shall in no event remove, alter
or deface the architectural details within the Premises, including without
limitation, any fireplace mantels, moldings, paneling or carving work.
ARTICLE IV - RENT
4.1 Base Rent. Tenant shall pay Base Rent monthly, in advance, commencing
on the Rent Commencement Date (or for the partial month beginning on the
Commencement Date if the Commencement Date is not the first day of the month)
and thereafter shall pay Base Rent monthly, in advance, on the first day of each
calendar month thereafter to Landlord at Landlord's Mailing Address or at such
other address as Tenant shall be notified by Landlord or Landlord's agent in
writing. Additional Rent, which includes Operating Cost Rent, Tax Rent and all
other sums (except Base Rent) payable by Tenant, shall be paid when due. All
Base Rent and Additional Rent shall be paid in lawful money of the United
States. If (i) Base Rent and/or any Additional Rent is not received by Landlord
within five (5) days of due date or otherwise paid by the due date, or (ii)
Tenant's check is not honored, and because actual damages resulting from late
payments and dishonored checks are difficult to fix, Xxxxxx agrees to pay three
(3%) percent of the amount outstanding as liquidated damages for each late
payment or dishonored check. In addition, Xxxxxxxx may charge interest from the
initial due date at the rate of the lesser of 18% or the maximum legal rate on
all amounts not paid or received by Landlord within ten (10) days of the due
date. If two (2) or more of Tenant's checks are dishonored, Landlord may demand
all future payments be by certified or bank check or money order. The late
charge and interest payments do not modify Tenant's obligation to pay Base Rent
and Additional Rent when due, nor is Landlord precluded from pursuing other
remedies under the Lease or as are otherwise available.
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4.2 Net Lease. Tenant's rent payments shall be completely net to Landlord
so that this Lease yields to Landlord the net annual Base Rent, and Tenant shall
pay all Base Rent, Additional Rent and costs of every kind relating to the
Premises without notice, demand, setoff, deduction, counterclaim, defense or
abatement except as specifically provided in the Lease.
4.3 Tax Rent. Tenant shall pay Tenant's Pro Rata Share of Taxes in excess
of Tax Base ("Tax Rent"). Taxes shall include all real estate taxes,
assessments, sales or use taxes, sewer entrance fees, and other public charges
on or relating to the Property including, without limitation, the Building,
other improvements, land and personalty, taxes or rentals, and taxes in addition
to or in lieu of existing taxes, foreseen and unforeseen ordinary and
extraordinary, and all costs related to attempts to secure a refund or abatement
(together called "Taxes"); provided Taxes shall not include franchise, estate,
inheritance, succession, transfer, income or excess profits taxes assessed on
Landlord. Tenant also shall pay before the due date all taxes attributable to
its signs or personal property, and all Tax increases resulting from Xxxxxx's
Improvements to the Premises.
Tenant's Pro Rata Share shall be based upon Taxes "as abated" provided
Landlord first shall receive from any Tax refund all costs of securing the
refunds and, to the extent Tenant paid Taxes for which the refund was received,
Tenant then shall be entitled to its Pro Rata Share of the balance. Landlord
shall have sole control of all tax abatement proceedings, and the pendency of
abatement proceedings or Xxxxxxxx's withholding of tax payments shall not affect
Tenant's obligation to pay Taxes as provided herein.
If the Property or the Premises is not separately assessed, Landlord shall
reasonably determine Tenant's Pro Rata Share of Taxes based on the assessor's
worksheet and other reasonably available information.
Tax Rent shall be paid to Landlord monthly with Base Rent in the amount
which Landlord estimates, from time to time, will represent Tenant's Tax Rent.
Landlord shall notify Tenant of its actual Pro Rata Share after receipt of a Tax
bill, and any excess paid by Tenant shall be applied to Tenant's next Tax Rent
payment or refunded, at Landlord's election, or Tenant shall pay any deficiency
within 15 days of such notice.
4.4 Operating Cost Rent. Tenant shall pay Operating Cost Rent which shall
consist of Tenant's Pro Rata Share of all of the "Operating Costs" in excess of
the Operating Cost Base provided that the Operating Cost Base shall not include
amounts expended for work which is not performed at least on a annual basis.
(a) "Operating Costs" include all costs and expenses of every kind and
nature, except capital costs (which term shall be defined as costs for
substantial and permanent increase of the value of the Property) incurred by
Landlord in operating, managing, equipping, lighting, cleaning, maintaining,
repairing and replacing the Premises, the Building and the Property including,
without limitation, costs for janitorial service, rubbish removal, HVAC service,
utilities, landscaping and snow removal; service contracts with independent
contractors including, but not limited to, elevator and HVAC maintenance;
management fees, wages, salaries, benefits, payroll taxes and unemployment
compensation insurance for employees of Landlord or any contractor of Landlord
engaged in the cleaning, operating, maintenance of
6
security of the Property; the cost of all of Landlord's insurance, including,
without limitation, casualty, liability and loss of rent insurance; and costs
for work required to comply with Laws and Insurance Regulations. Operating Costs
shall not include leasing commissions, advertising and promotional expenditures,
legal fees and disbursements relating to leasing, and other expenses incurred in
connection with leasing space in the Building; salaries for Landlord's
executives above the grade of building manager; financing or ground lease
expenses; real estate taxes; costs paid directly by individual tenants to
suppliers including tenant electricity and telephone costs; amounts for which
Landlord is otherwise reimbursed through insurance, condemnation awards,
warranties or by payments from other tenants; expenditures for preparing other
tenant space in the Building for occupancy; cost of utilities furnished by
Landlord to other tenants' premises and paid for directly by such tenants for
the premises; and the cost of any special services furnished by Landlord to any
tenants of the Building for which such tenants are charged separately.
(b) Operating Cost Rent shall be paid to Landlord monthly with Base Rent
in the amount which Landlord estimates, from time to time, will represent
Tenant's Operating Cost Rent. Landlord shall notify Tenant of its actual Pro
Rata Share within ninety (90) days of the end of each calendar year (provided
Landlord's failure to so notify Tenant shall not reduce Tenant's liability when
such notice is issued), and any excess paid by Tenant shall be applied to
Tenant's next Operating Cost Rent payment or refunded, at Landlord's election,
or Tenant shall pay any deficiency within fifteen (15) days of such notice.
4.5 Deposit. Tenant will pay upon execution of this Lease, and Landlord
shall hold during the Term, the Deposit as security for Tenant's performance of
all its Lease obligations. Landlord may apply the Deposit, or any part, to
Landlord's damages arising from Xxxxxx's default without prejudice to any other
Landlord remedy. If any part of the Deposit is applied, Tenant immediately shall
restore the Deposit to its original amount. Upon written request, and so long as
Tenant is not then in Default, Landlord shall return the remaining Deposit to
Tenant on the expiration or termination of the Term (hereafter referred to as
the "end of the Term") and Xxxxxx's surrender of possession of the Premises to
Landlord. Xxxxxxxx has no obligation to pay interest on the Deposit and may co-
mingle the Deposit with Xxxxxxxx's funds. If Landlord conveys its interest under
the Lease, the Deposit, or any part not applied previously, may be turned over
to the grantee in which case Tenant shall look solely to the grantee for the
proper application and return of the Deposit.
4.6 First Month's Base Rent. Tenant will pay upon the Rent Commencement
Date of this Lease first month's Base Rent in the amount of $6,153.33 to be
applied by Landlord as payment of Tenant's first installment of Base Rent due
hereunder.
ARTICLE V-TENANT'S COVENANTS AND LANDLORD'S OBLIGATIONS
5.1 General Covenants. In addition to Tenant's other Lease covenants,
Tenant shall, at its expense:
(a) use the Premises solely and continuously for the Permitted Use and
for no other purpose, procure all required licenses and permits, and not use the
Premises or Property in violation of any laws, ordinances, orders or regulations
of any public authority or of any insurer, Board of Fire Underwriters, or
similar insurance rating bureau having jurisdiction over the Premises (hereafter
7
collectively "Laws and Insurance Regulations"), or in a manner which may be
injurious to or adversely affect the general character of the Property and not
conduct any auction, bankruptcy or similar sale thereon;
(b) comply with Landlord's sign criteria, if any, and sign criteria
imposed by applicable governmental authorities (it being Landlord's and Tenant's
agreement that Tenant shall be solely responsible for obtaining any and all
approvals for signage from Landlord and applicable governmental authorities,
installation of said signs and the expense of same);
(c) pay, as they become due, all charges for utilities for the Premises
and contract for same in Tenant's name;
(d) keep the Premises in a neat, clean, sanitary condition and in good
order and repair (making replacements as necessary) including, without
limitation, doors, windows, plumbing, electrical, sewage, mechanical, air
conditioning (including without limitation, the air conditioning compressors;
the Landlord hereby representing that as of the date hereof said air
conditioning compressors are in good working order), ventilating and heating
equipment; and all fixtures and equipment appurtenant to the Premises; replace
broken glass with the same quality glass; paint and refurbish the Premises and
restore or replace the floor covering at reasonable intervals, and in any event
at such times as may reasonably be required to keep the Premises attractive in
appearance; not overload, damage or deface the Premises; and properly store and
dispose of all trash using services (if any) designated by Landlord;
(e) make Improvements and Repairs of whatever nature required by Laws
and Insurance Regulations, except that Tenant shall not be required to make any
structural Improvements, unless required as a result of Tenant's Improvements
(including Tenant's Work) to or use of the Premises;
(f) pay for all repairs and replacements to the Premises, the Building
and the Property required by Xxxxxx's misuse or negligence;
(g) keep and maintain the HVAC System serving the Premises in good
working order, condition and repair (including replacement of parts and
equipment, if necessary) (the Landlord represents as of the date of this lease
that the HVAC unit serving the Premises is in good working condition);
(h) remove snow and ice from the walkways and steps serving the Premises
during Tenant's business hours (or if greater, during hours in which Tenant's
employees, licensees or invitees occupy the Premises);
(i) not act in any manner which prevents Landlord or Tenant from
obtaining, or makes void or voidable, any insurance, or creates extra premiums
for or increases the rate of, insurance, and if Tenant causes extra premiums or
increased rates, Tenant will pay the increased costs to Landlord upon demand
(the Landlord acknowledges to Tenant that the Permitted Use shall not make
Landlord's existing insurance void or voidable or cause extra or increased
premiums or rates for said insurance);
(j) not act in any manner which prevents Landlord or Tenant from
obtaining, or causes the revocation of, any government license, permit, or
authority, and if as a direct or indirect result of Tenant's business an
addition to or change in the same is required by Laws or Insurance Regulations,
Tenant shall pay for the addition or change;
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(k) not assign, sublet, mortgage, license, transfer or encumber this
Lease of the Premises in whole or in part, whether by changes in the ownership
or control of any entity which is Tenant, or any direct or indirect owner of
Tenant, whether at one time or at intervals, by sale or transfer of more than
four (4%) of Tenant's stock, partnership or beneficial interest, operation of
law or otherwise ("Transfer"), except as provided in Section 5.2. hereinbelow,
and any purported Transfer shall be void and confer no rights upon any third
person, provided that if there is a Transfer, Landlord may collect rent from the
transferee without waiving the prohibition against Transfers, accepting the
transferee, or releasing Tenant from full performance under this Lease, and
Landlord shall have the right to terminate this Lease on 30 days written notice
within 60 days after written notice from Tenant to Landlord of any Transfer, or
within 1 year after Xxxxxxxx first learns of the Transfer if no notice is given;
and
(l) abide by reasonable rules and regulations made by Landlord from time
to time. Attached hereto as Exhibit E are rules and regulations currently in
effect.
5.2. Permitted Assignment. Notwithstanding the provisions of Section 5.1 of
this Lease, Tenant may assign or in any manner transfer this Lease or any estate
or interest therein with Landlord's written consent, which written consent shall
not be unreasonably withheld or denied, subject to the following conditions:
(a) Tenant shall no less than thirty (30) days prior to the effective
date of such assignment provide Landlord with written request for consent to
same ("Notice") and deliver to Landlord therewith, the assignee's name, address
and contact person, a description of assignee's business and copies of financial
statements for the proposed assignee in form reasonably satisfactory to
Landlord, and such other documentation reasonably required by Landlord.
(b) Landlord may terminate the Lease by written notice to Tenant within
ten (10) days of Notice in which case the Lease shall terminate automatically
ten (10) days thereafter and thereupon Tenant shall deliver the Premises as
required pursuant to Section 6.2 of this Lease.
(c) The proposed assignee shall be engaged in a business of similar type
and quality to that of Tenant's, shall use the Premises for the Permitted Use
hereunder only and shall be of no less financial condition than Tenant.
(d) Tenant shall reimburse Landlord, any expense (including without
limitation attorneys' fees) incurred by Landlord in connection with the Notice
or any assignment hereunder.
Xxxxxxxx's written consent to any one assignment as provided hereunder,
shall not be a waiver of Xxxxxx's (or any assignee of Tenant's) obligation
thereafter to receive Xxxxxxxx's written consent to same as provided hereunder
for each subsequent assignment.
Following any permitted assignment hereunder and notwithstanding Landlord's
written consent to such assignment, Tenant shall remain liable for all Tenant's
obligations pursuant to this Lease.
5.3. Landlord's Obligations. Landlord agrees to keep the Building and the
Property, including the roof, exterior and structural portions of the Building,
the exterior faces of exterior walls, windows, the common stairways and
stairwells, the elevator and elevator walls, fan rooms, electric and telephone
closets, janitor closets and pipes, ducts, conduits, wires and appurtenant
fixtures and other mechanical equipment serving the Building in common, in good
order serviceable condition and repair, reasonable wear and tear excepted,
subject to fire or other casualty, eminent domain and other events beyond
Landlord's reasonable control.
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5.3(b) Landlord's Waiver. Xxxxxxxx agrees to deliver to Tenant with
delivery of this executed Lease a Landlord's Waiver in form attached
hereto as Exhibit F
5.4. Environmental Covenants.
(a) Definition. As used in this Lease, the term "Hazardous Material"
means any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or including in the definition of "hazardous substances," "hazardous
wastes," "infectious wastes," "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances including, without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCB's and similar compounds,
and including any different products and materials which are subsequently found
to have adverse effects on the environment or the health and safety of persons.
(b) General Prohibition. Tenant shall not cause or permit any Hazardous
Material to be generated, produced, brought upon, used, stored, treated,
discharged, released, spilled or disposed of on, in, under or about the Premises
by Tenant, its affiliates, agents, employees, contractors, sublessee's,
assignees or invitees. Tenant shall indemnify, defend and hold Landlord harmless
from and against any and all actions (including, without limitation, remedial or
enforcement actions of any kind, administrative or judicial proceedings, and
orders or judgements arising out of or resulting therefrom), costs, claims,
damages (including, without limitation, punitive damages), expenses (including,
without limitation attorneys', consultants' and experts' fees, court costs and
amounts paid in settlement of any claims or actions), fines, forfeitures or
other civil, administrative or criminal penalties, injunctive or other relief
(whether or not based upon personal injury, property damage, or contamination
of, or adverse effects upon, the environment, water tables or natural
resources), liabilities or losses arising from a breach of this prohibition by
Tenant, its affiliates, agents, employees, contractors, sublessees, assignees or
invitees.
(c) Notice. In the event that Hazardous Materials are discovered upon,
in, or under the Premises, and any governmental agency or entity having
jurisdiction over the Premises requires the removal of such Hazardous Materials,
Tenant shall be responsible for removing those Hazardous Materials arising out
of or related to the use or occupancy of the Premises by Tenant or its
affiliates, agents, employees, contractors, sublessees, assignees or invitees
but not those of its predecessors. Notwithstanding the foregoing, Tenant shall
not take any remedial action in or about the Premises without first notifying
Landlord of Tenant's intention to do so and affording Landlord the opportunity
to protect Xxxxxxxx's interest with respect thereto. Tenant immediately shall
notify Landlord in writing of: (i) any spill, release, discharge or disposal of
any Hazardous Material in, on or under the Premises, the Property or any portion
thereof, (ii) any enforcement, clean-up, removal or other governmental or
regulatory action instituted, contemplated, or threatened (if Tenant has notice
thereof) pursuant to any Hazardous Material Laws; (iii) any claim made or
threatened by any person against Tenant, the Premises, relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from or
claimed to result from any Hazardous Materials; and (iv) any reports made to any
governmental agency or entity arising out of or in connection with any Hazardous
Materials in, on under or about or removed from the Premises, including any
complaints, notices, warnings reports or asserted violations in connection
therewith. Tenant also shall supply to Landlord as promptly as possible, and in
any event within five (5) business days after Xxxxxx first receives or sends the
same, copies of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Premises, the Property or Xxxxxx's use or
occupancy thereof.
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(d) Survival. The respective rights and obligations of Landlord and
Tenant under this subsection shall survive the expiration or earlier termination
of this Lease.
ARTICLE VI - CONDITION OF PREMISES
6.1 Improvements. Tenant may not make structural or non-structural
Improvements to the Premises without Landlord's prior written consent which
consent may be withheld or denied by Landlord at Landlord's sole discretion with
or without reason. At the end of the Term, except to the extent Tenant is
directed by Xxxxxxxx to remove any Improvements and to repair damage relating to
such removal, the Premises shall remain in the altered condition with all
Improvements.
All work by Xxxxxx shall be done at Tenant's own cost, in a good and
workmanlike manner, using first-class materials and in accordance with all Laws
and Insurance Regulations, and any work which affects the structure of the
Building or the Building systems shall be performed so as not, in Xxxxxxxx's
sole judgment, to adversely affect same. Tenant shall pay when due all charges
for labor and materials in connection with any work on the Premises.
6.2 Fixtures: Yield-Up. Except as Landlord directs in writing, Tenant shall
remove its goods, effects, signs and trade fixtures, and peaceably yield-up the
Premises, broom-clean and in good order, repair and condition at the end of the
Term, with all Repairs, including painting and patching to the Premises required
by such removal, having been made and all utility lines left exposed or
unconnected having been capped. If Tenant fails to remove its property or to
make the Repairs by the end of the Term, Landlord may remove and store Tenant's
property in a public warehouse at Tenant's expense or sell same at public
auction, and make the Repairs, and Tenant promptly shall reimburse Landlord for
its costs.
6.3 Mechanic's Lien. Tenant shall immediately discharge (by payment, filing
of bonds or otherwise) any mechanic's, materialmen's or other lien against the
Premises and/or Landlord's interest therein arising out of any payment due, or
purported to be due, for any labor, services, materials, supplies, or equipment
alleged to have been furnished to or for Tenant.
ARTICLE VII - INSURANCE
7.1 Insurance. Tenant shall maintain, at its sole expense, coverages in the
following amounts, and such additional types and amounts of insurance as
Landlord may reasonably require including the following coverages:
(a) Comprehensive General Liability Insurance covering the insured
against claims of Bodily Injury, Personal Injury and Property Damage arising out
of Tenant's operations, assumed liabilities or use of the Property and the
Premises, including the performance by Tenant of the indemnity agreements set
forth in Section 7.4 of this Lease, for limits of liability not less than: (i)
Bodily Injury and Property Damage Liability $2,000,000 Each Occurrence and
$2,000,000 Annual Aggregate and (ii) Personal Injury Liability $2,000,000 Each
Occurrence and $2,000,000 Annual Aggregate, or combined single limit coverage of
$2,000,000 or in such higher limits as may be reasonably required by Landlord
based upon inflation, increased liability awards, recommendations of Landlord's
professional insurance advisors and other relevant factors or any Mortgagee, as
hereinafter defined. Liability policies obtained should be extended to include
Contractual Liability, Personal Advertising Injury, Products/Completed
Operations, Host or Full Liquor Liability and Fire Legal Liability.
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(b) Property Damage Insurance covering (i) all trade fixtures,
merchandise, furnishings, equipment, plate glass, if any, signs and personal
property and all other items of Tenant's property and Xxxxxx's customer's
property on the Premises installed by, for, or at the expense of Tenant, (ii)
all Tenant improvements, and (iii) all other improvements, alterations and
additions to the Premises. Such insurance shall be written on an "all risks" of
physical loss or damage basis, for the full replacement cost value new without
deduction for depreciation of the covered items and in amounts that meet any co-
insurance clauses of the policies of insurance, and shall include a vandalism
and malicious mischief endorsement, sprinkler leakage coverage and earthquake
coverage.
(c) Worker's Compensation/Employer's Liability Insurance. If the nature
of Tenant's use of the Premises requires that any or all of its employees be
provided coverage under State Worker's Compensation Insurance or similar
statutes, Tenant shall keep in force Worker's Compensation Insurance sufficient
to cover all employees.
Landlord and Tenant acknowledge that insurance markets experience rapid
changes, and that insurance in the form and amounts described in this Lease may
not be available in the future. Therefore, if Tenant is unable to maintain the
insurance required under this Lease, Tenant shall remain obligated to maintain
insurance coverage which is customary and commercially reasonable in the
insurance industry for Tenant's type of business, as that coverage may change
from time to time. Landlord makes no representation as to the adequacy of any
insurance required under this Lease and, as a result, Tenant shall obtain any
such additional insurance which Landlord deems necessary to protect Landlord and
Tenant. The amount and coverage of Tenant's insurance shall not limit Tenant's
liability nor relieve Tenant of any obligation under this Lease.
7.2 Tenant's Risk. Except as modified by statute, all merchandise,
furniture, fixtures and property which may be on or about the Premises, Building
or Property shall be at the sole risk and hazard of Tenant, and if the whole or
any part of the Premises, Building or Property is destroyed or damaged by any
cause whatsoever, no part of such loss or damage will be charged to Landlord.
7.3 General Requirements. All insurance policies shall be with companies
qualified to do business in the state in which the Premises are located and
acceptable to Landlord (or having a Best's Key Rating of A:XII or better), and
shall name Landlord, and if Landlord so requests, Xxxxxxxx's mortgagee(s)
(singlely and collectively, "Mortgagee") and any other party, as insured parties
on casualty policies and additional named insureds on liability policies. In
addition, all liability insurance obtained by Tenant shall be (a) primary
insurance as to all claims thereunder and provide that any insurance carried by
landlord is not excess and is non-contributing with any insurance of Tenant; (b)
contain cross liability endorsements or severability of interest clause
acceptable to Landlord; (c) be written on an occurrence basis; and (d)
specifically cover the liability assumed by Tenant under this Lease including,
but not limited to, Tenant's obligations under Section 7.4. Tenant shall
deliver a copy of the policies or certificates of all insurance to Landlord
prior to the earlier of entry on the Premises or the Commencement Date, and
copies of the new policies or new certificates not later than 30 days prior to
the expiration of each policy. Each policy shall provide (and the certificate
shall evidence) that it will not expire, or be cancelled or modified without 30
days prior written notice to Landlord and, if Landlord requests, to Mortgagee.
If Tenant fails to deliver a policy or certificate to Landlord as required or if
any policy is cancelled or modified during the term without Landlord's consent,
Landlord may obtain such insurance on behalf of Tenant in which case Tenant
shall reimburse Landlord, as additional rent, for the cost of such
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insurance plus interest at the rate set forth in Section 4.1 within fifteen (15)
days after receipt of a statement indicating the cost of such insurance. Tenant
shall have Landlord named as additional insured with respect to the Property.
7.4 Indemnity. Tenant shall save Landlord harmless, and shall exonerate and
indemnify Landlord from all claims, liabilities, penalties and expenses arising
(a) in connection with death, injury and/or property damage on or related to the
Premises which Tenant acknowledges are, subject to the terms of the Lease, under
Xxxxxx's exclusive or substantial control, charge, custody and possession, or
(b) anywhere if caused wholly or in part by any act or omission of Tenant, its
officers, agents, employees, other occupants of the Premises or Xxxxxx's
invitees, except in all cases to the extent that such death, injury and/or
property damage is caused wholly by the willful misconduct or gross negligence
of Landlord, its agents or employees.
7.5 Landlord's Insurance. Landlord acknowledges that Landlord currently
maintains insurance coverage upon the Building and the Property. Landlord shall
continue throughout the lease term to maintain such insurance in coverage
amounts no less than currently existing.
ARTICLE VIII - CASUALTIES AND EMINENT DOMAIN
8.1 Damage. If the Premises become untenantable in whole or part because of
fire or other casualty covered by insurance, or as the result of taking of, or
damage to, the Premises or the Building as a result of the exercise of any power
of eminent domain, condemnation, or purchase under threat or in lieu thereof
("Taking"), then unless the Lease is terminated in accordance with Section 8.2,
Landlord, with reasonable dispatch (but subject to delays for adjustment of
insurance proceeds and causes beyond Landlord's reasonable control), shall
repair the damage so that the Premises are in substantially the same condition
as on delivery of possession subject to rights of Mortgagee, zoning laws, and
building codes then in existence, and provided Landlord shall not be required to
expend more than the net insurance proceeds landlord receives for damage to the
Premises or the net Taking award attributable to the Premises. "Net" means the
insurance proceeds or award less all costs and expenses, including adjustors and
attorney's fees, of obtaining the same. Notwithstanding the foregoing to the
contrary, (a) Tenant shall be required to pay to landlord the amount of any
deductible under Landlord's insurance policy if the casualty is the result of
the acts or omissions of Tenant, its subtenants, assignees or the employee,
agents, or visitors of any such parties and (b) Landlord shall have the right to
require Tenant to perform all or any portion of the non-structural repair which
Landlord would otherwise make and Landlord shall reimburse Tenant for the cost
thereof. Tenant immediately shall give written notice to Landlord of any damage
to the Premises.
8.2 Termination Rights.
(a) If any of the Premises or Building are damaged to the extent of 10%
or more of its insurable value, or by a risk not covered by Landlord's
insurance, or the cost of repair would exceed $100,000.00, or the damage is of a
character that it cannot reasonably be repaired within sixty (60) days of the
date on which repair work commences,
(b) If 25% or more of either (i) the floor area of the Building, or (ii)
the land which constitutes the Premises is taken by a Taking, Landlord may elect
to terminate this Lease by written notice to Tenant within 30 days after the
damage or within 6 months of the date on which the condemning
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authority has the right to possession ("Taking Date") in which case the Lease
shall terminate as of the Taking Date. If the entire Premises are taken by
eminent domain, except for temporary use, this Lease shall terminate
automatically as of the Taking Date.
(c) If 25% or more of the Premises or full access thereto is taken by a
Taking, Tenant may elect to terminate this Lease by written notice to Landlord
within 30 days after the damage or within 6 months of the Taking Date in which
case the Lease shall terminate as of the Taking Date.
8.3 Abatement. If a portion of the Premises is damaged or taken by a
Taking, except for temporary use, and this Lease is not terminated, the Base
Rent and Tenant's Pro Rata Share shall be reduced proportionately based on the
area of the Premises damaged and therefore not used by Tenant or taken by a
Taking until the earlier of when Xxxxxxxx's Repairs to the Premises are
completed or Tenant begins using the damaged area.
8.4 Taking for Temporary Use. If the Premises is taken by a Taking for
temporary use, this Lease and Tenant's obligations shall continue, except to the
extent the Taking renders compliance impossible or impracticable.
8.5 Disposition of Awards. Except for any separate award for Tenant's
movable trade fixtures or relocation expenses which does not reduce Landlord's
award, all Taking awards to Landlord or Tenant shall be Landlord's property
without Tenant's participation. Tenant assigns to Landlord Xxxxxx's share of
such award, waives any rights with respect to the loss of its leasehold interest
and the Premises, and agrees to execute such instruments as may be necessary to
confirm the assignment and to deliver to Landlord any such award recovered by
Xxxxxx except the separate award described above.
ARTICLE IX - DEFAULTS AND REMEDIES
9.1 Tenant's Default. The following conditions shall be considered a
"Default" by Xxxxxx:
(a) failure to pay Base Rent, Additional Rent, or any other charge
within 10 business days of due date; or
(b) Tenant's leasehold estate is taken by execution or other process of
law; or Tenant is liquidated, dissolved, commits an act of bankruptcy, is
declared bankrupt or insolvent according to law or admits in writing its
inability to pay debts generally as they become due, or an assignment of
Tenant's property is made for the benefit of creditors or a receiver, guardian,
conservator, trustee or assignee, or any other similar officer or person is
appointed to take charge of any part of Tenant's property; or any reorganization
or similar proceedings are commenced by or against Tenant under any bankruptcy
or insolvency law and not dismissed within 30 days from its commencement; or any
court enters an order providing for the modification of rights of Xxxxxx's
creditors; or
(c) vacating of the Premises or closing for business for an aggregate
period during the Term exceeding 30 days except for fires and unavoidable
casualties; or
(d) a Transfer without Landlord's prior written consent; or
(e) failure to perform or observe any other Lease term or covenant for a
period of 30 days after notice, or if same shall reasonably take longer than 30
days, if Tenant fails to commence same promptly and to complete same with due
diligence; or
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If Tenant Defaults, Landlord may at any time until the Default is cured
either (1) terminate this Lease by written notice effective on the date of the
notice or on any date specified in the notice, or (2) without demand or notice,
re-enter, take possession and repossess the Premises and, with a court order and
at Tenant's risk, expel Tenant and those claiming under Tenant and remove, store
and sell their effects at public auction, all without prejudice to any remedies
for arrearages or preceding Defaults. The net proceeds of any sale shall be
applied to sums due to Landlord from Tenant and the balance paid to Tenant.
Tenant waives all statutory rights (including rights of redemption) to the
extent such rights may be lawfully waived. With or without terminating this
Lease, Landlord may re-let all or any part of the Premises from time to time for
periods (even if beyond the Term of this Lease), at such rental, and upon the
terms and conditions as Landlord deems advisable, and may make Improvements and
Repairs to the Premises. No re-entry or taking of possession by Landlord shall
terminate this Lease unless Landlord gives a written notice of such intention to
Tenant or a court of competent jurisdiction terminates the Lease, nor shall
Landlord's right to re-let constitute an obligation to re-let or to mitigate
damages. Notwithstanding the Landlord's rights pursuant to the prior sentence
hereof, the Landlord shall not undertake sale of any collateral described in
that certain Security Agreement dated January 4, 1994 by and between Tenant and
The First National Bank of Boston until such time as said Security Agreement
shall no longer be in full force and effect.
9.2 Damages. Tenant's liability and obligations under this Lease shall
survive termination or repossession, and Tenant shall pay as current damages the
Base Rent, Additional Rent, and other sums up to what would have been the end of
the Term in the absence of the termination or repossession, with a credit for
the net proceeds, if any, Landlord receives from any reletting of the Premises,
after deducting all of Landlord's expenses in connection with the reletting
including, without limitation, expenses of preparing the Premises for the
reletting. Tenant shall pay the current damages to Landlord on the days Base
Rent would have been payable if not for the termination or repossession. In
addition, and notwithstanding any Lease provision or the termination of this
Lease, Tenant shall reimburse Landlord for any free rent and construction
allowance, and all expenses and liabilities incurred by Landlord in connection
with Xxxxxx's Default including brokerage commissions, reasonable attorney's
fees and alteration costs.
After any termination or repossession, whether or not Landlord has
collected any current damages, Tenant shall pay to Landlord, at Landlord's
option and on demand, liquidated final damages in lieu of all current damages
beyond the date final damages are paid. The final damages shall be the amount by
which (i) all rent and other charges which would be payable from the date to
which Tenant paid current damages through what would have been the unexpired
Term exceeds (ii) the then fair net rental value of the Premises for the same
period. If any law validly limits the amount of final liquidated damages to less
than described above, Landlord shall be entitled to the maximum amount legally
allowed. For purposes of this Section, the rent is Tenant's highest total Base
Rent and Additional Rent due for any 12 month period preceding the termination
or repossession.
9.3 Landlord's Self Help. If Tenant Defaults, Landlord may, at its option,
without waiving its right to terminate this Lease or its claim for damages, cure
the Default, and Tenant shall reimburse Landlord for any amount paid or
contractual liability incurred by Landlord in doing so; provided Landlord may
immediately cure any Default or failure by Tenant to perform any Lease
obligation if the cure or performance is reasonably necessary to protect the
Premises or Landlord's interests, or to prevent injury or damage to persons or
property. If Xxxxxx fails to reimburse Landlord upon demand, such amount shall
be added to the next payment of rent due without further notice.
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9.4 Landlord's Default. Landlord shall not be deemed to be in default
hereunder unless its default continues for 30 days, or such additional time as
is reasonably required to correct its default, after Tenant has given written
notice to Landlord specifying the nature of the alleged default.
ARTICLE X - SUBORDINATION
10.1 Subordination. Xxxxxx's rights and interests under this Lease shall
be (i) subject and subordinate to any existing or future mortgages, deeds of
trust, xxxxxxxxx, or similar instruments covering the Premises and to all
advances, modifications, renewals, replacements, and extensions ("Mortgages")
provided that Xxxxxx's rights hereunder shall not be disturbed except in the
event of Tenant's Default hereunder, or (ii) if any Mortgagee of Landlord,
Xxxxxxxx's successors and/or assigns, elects, prior to the lien of any present
or future Mortgagee. Tenant further shall attorn to and recognize any successor
landlord, whether through foreclosure or otherwise, as if the successor landlord
were the originally named Landlord. Provided Landlord shall give to Tenant the
name and address of Mortgagee, Tenant concurrently shall give Mortgagee the same
notices given to Landlord, and Mortgagee shall have the same opportunity and
rights to cure as are available to Landlord to cure a default provided Mortgagee
shall have an additional thirty (30) days after the expiration of Landlord's
cure period within which to commence a cure or such longer period as may be
reasonably necessary including, without limitation, any period of time
reasonably required for the Mortgagee to obtain possession of the Property or
the Premises from Landlord. Although this Section shall be self-executing and no
further instrument shall be necessary, Tenant shall execute and deliver any
instruments Landlord reasonably requires for the above purposes. An assignment
of lease or similar document shall not result in the assignee having any
liability until the assignee takes possession.
10.2 Request by Mortgagee. If a Mortgagee or prospective Mortgagee requests
any Lease modifications which do not have a material adverse effect on Tenant's
rights Tenant will enter into a written modification agreement in recordable
form (which shall have the same force as a Lease amendment) if the Mortgagee
forecloses or takes similar action. The modification shall not affect the length
of the Term or the size, use, Base Rent, Additional Rent, or location of the
Premises.
ARTICLE XI - MISCELLANEOUS PROVISIONS
11.1 Parties Bound. Except as otherwise provided, the Lease agreements and
conditions to be performed and observed by Landlord or Tenant shall bind and
inure to the heirs, legal representatives, successors and assigns of each,
provided no reference to Xxxxxx's successors and assigns will constitute a
consent to a Transfer by Xxxxxx. If Tenant consists of more than one person or
entity, or if there is a guarantor, then all such person, entities and
guarantors shall be jointly and severally liable and the word "Tenant," as used
in this Lease, including Article IX, includes such person, entities, and
guarantors. The word "Landlord" means only the owner, or the lessee if this
Lease becomes subject to an xxxxxxxxx, or the Mortgagee in possession of the
Premises, for the time being, so that if the Premises is sold, a Mortgagee takes
possession, or another becomes landlord, all prior landlords, including
Landlord, automatically shall be entirely relieved of all landlord covenants and
obligations accruing thereafter. If the entity which holds Xxxxxxxx's interest
in this Lease is a trust, then the Landlord obligations shall be binding upon
the trustees of said trust, as trustees and not individually, and not upon the
trust estate.
11.2 Landlord's Liabilities and Additional Rights.
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(a) Landlord shall have no obligations or liability with respect to or
in any way connected with the Premises or the Building, or services to be
provided from same, except to the extent, if any, specifically set forth in the
Lease. Landlord shall not be deemed to have committed a breach of any repair
obligations unless it makes repairs negligently or fails to commence repairs
within a reasonable time after Landlord receives notice from Tenant, and
Landlord's liability in any case shall be limited to the cost of making the
required repairs.
(b) Landlord shall not be liable for indirect or consequential damages
for any reason, or for any inconvenience, interruption or consequences resulting
from the failure of utilities or any service, making repairs, improvements or
resulting from leaks of steam, gas, electricity, water, or any other substance
from pipes, wires or other conduits, or from the bursting or stoppage thereof,
or from leaks of water, snow, or rain from the plumbing, roof, or for wetness or
dampness for any reason.
(c) Xxxxxx agrees for itself and each succeeding holder of Xxxxxx's
interest, or any portion thereof, that any judgment, decree or award obtained
against Landlord, or any succeeding owner of Landlord's interest, which is
related to this Lease or the Premises, whether at law or in equity, shall be
satisfied out of Landlord's equity in the Premises, and further agrees to look
only to such assets and to no other assets of Landlord for satisfaction. In no
event shall Tenant have the right to deduct any amount allegedly owed to Tenant
from any rent or other sums payable to Landlord hereunder, Xxxxxx's sole remedy
being an independent action against Landlord for such claim.
(d) Landlord reserves the right at any time or times during the Term and
without charge, abatement or reduction in rent (i) to examine and to show the
Premises at reasonable times; (ii) to put up "For Sale" or "For Rent" signs,
which signs Tenant shall not move, remove, block or otherwise interfere with;
(iii) to perform such work as may be required by this Lease, any public
authority, or to facilitate making repairs or improvements to the Building, the
Property or any portion thereof, provided that unless any such work is of an
emergency nature, Landlord shall give reasonable notice and shall use reasonable
efforts to minimize interference with Tenant's operations; (iv) to make repairs
which Tenant fails to make promptly; and (v) to enter upon, and use portions of,
the Premises for the foregoing purposes.
11.3 Covenants and Conditions. Each term and each provision of this Lease
to be performed by Tenant shall be construed to be both a covenant and a
condition.
11.4 Costs and Expenses. Acts to be done by Tenant pursuant to this Lease
shall be at the cost and expense of Tenant unless a contrary intent is
expressed. In addition, Tenant shall reimburse Landlord for any costs or
expenses incurred in connection with enforcement of this Lease by Landlord.
11.5 Holding Over. If Tenant or anyone claiming under it holds over after
end of the Term, the party shall, prior to Landlord's acceptance of rent, be a
tenant at sufferance, and, after Xxxxxxxx's acceptance of rent and after
Xxxxxxxx's reasonable notice to Tenant of Landlord's intent to change the
holdover rent, be a tenant at will subject to the provisions of this Lease
insofar as the same may be made applicable to a tenancy at will; provided that
Tenant shall pay Base Rent for the period of such tenancy at the greater of
twice the highest rate of Base Rent payable during the Term or market rent,
Landlord shall have the right to extend the Term for up to 1 year by written
notice to Tenant, and, in addition, Tenant shall be liable for all damages
incurred by Landlord (including consequential damages) as a result of the
holding over.
11.6 Quiet Enjoyment. Provided Tenant timely pays all rent and performs and
observe the
17
terms, conditions and covenants of the Lease, Tenant may peaceably and quietly
have, hold and enjoy the Premises as provided in the Lease, without hindrance or
molestation from Landlord or anyone claiming legally under Landlord, subject to
the terms of this Lease and any instruments having priority.
11.7 No Brokerage. Tenant warrants and represents that it has dealt with no
broker in connection with this Lease except the Broker (if any). Xxxxxxxx and
Xxxxxx agree to defend and indemnify the other against any brokerage claims
related to this Lease other than by the Broker.
11.8 Certificates. Within 10 days after Xxxxxxxx's request, Tenant shall
deliver to Landlord or to any prospective Mortgagee or purchaser (a) an estoppel
certificate in recordable form stating such information as Landlord reasonably
requests, and the certificate shall be binding on Tenant, and (b) such financial
statement as Landlord reasonably requires to verify the net worth of Tenant or
any Transferee or Guarantor of Tenant, and Tenant represents and warrants that
each such financial statement shall be true and accurate as of the date thereof.
All financial statements shall be confidential and shall be used only for the
purposes relating to this Lease or the Property.
11.9 Notices. Any notice, consent, or other communication relating to this
Lease shall be given in writing and by hand, by registered or certified mail or
overnight express mail such as "Federal Express," postage or charges prepaid, to
the other party's Notice Address or for Tenant to the Premises, to such other
address or addresses as may be designated by the party by notice, and if to a
Mortgagee, to such address as the Mortgagee shall designate.
11.10 No Waiver. Xxxxxxxx's failure to complain of any Tenant act or
omission, no matter how long it continues, shall not be deemed a waiver of any
of Landlord's rights. Landlord's waiver, express or implied, of any breach of
this Lease shall not be deemed a waiver of a breach of any other provision or a
consent to any subsequent breach of the same or any other provision. Xxxxxxxx's
consent to or approval of any action on one occasion shall not be deemed a
consent to or approval of any other action or to such action on any subsequent
occasion. Tenant's payment or Landlord's acceptance of a lesser amount than is
due from Tenant to Landlord shall not be deemed anything but payment on account
and Landlord's acceptance of a check for a lesser amount with an endorsement of
statement thereon or upon a letter accompanying the check that the lesser amount
is payment in full shall not be deemed an accord and satisfaction, and Landlord
may accept the check without prejudice to recover the balance due or pursue any
other remedy. All of Landlord's rights and remedies under this Lease or by
operation of law, either at law or in equity, for any breach shall be distinct,
separate, cumulative and non-exclusive and shall not be deemed inconsistent with
each other.
11.11 Force Majeure. If Landlord's or Xxxxxx's performance of any act
(other than Xxxxxx's payment of Rent hereunder) is delayed, or prevented because
of strikes, lockouts, labor troubles, inability to procure materials, power
failures, restrictive Laws, riots, insurrection, war, collection of insurance
proceeds or taking awards or other causes beyond Landlord's or Tenant's
reasonable control, then that party's performance shall be excused for the
period of the delay and any time period shall be extended for an equivalent
period.
11.12 Recording. Tenant shall not record this Lease, but may record a
memorandum in form acceptable to Landlord hereof. Any breach of this covenant
shall cause this Lease to terminate automatically, if Landlord so elects in
writing. Notwithstanding the provisions hereof, the Tenant shall be permitted to
file a copy of this Lease with the Securities and Exchange Commission as may be
required by governmental laws or regulations.
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11.13 Paragraph Headings. All paragraph headings are for convenience and
reference only, and shall not be held to explain, modify, amplify or aid in the
construction, interpretation or meaning of the provisions of this Lease.
11.14 Governing Law. This Lease shall be governed by the laws of the state
in which the Premises are located.
11.15 Separability; Construction and Interpretation. If any Lease term or
provision or the application thereof to any person or circumstance is invalid or
unenforceable, the remainder of this Lease, or the application of the term or
provision to other persons or circumstances shall not be affected, and the Lease
shall be valid and be enforced to the fullest extend permitted by law. If any
Lease provision is capable of two constructions, then the provision shall have
the meaning which renders it valid.
11.16 When Lease Becomes Binding; Entire Agreement. Landlord's employees or
agents have no authority to make or agree to make a lease or any other agreement
or undertaking, and the submission of this document for examination and
negotiation does not constitute an offer to lease, or a reservation of, or
option for, the Premises, and this document shall become effective and binding
only upon the execution and delivery by both Landlord and Tenant. All
negotiations, considerations, representations, and understandings between
Landlord and Tenant are incorporated herein, and no oral statements or prior or
contemporaneous written matter, whether by the parties or otherwise, which is
not specifically incorporated herein shall be of any force or effect. In
entering into this Lease, Xxxxxx relies solely upon the representations and
agreements contained herein. This Lease shall not be modified except by writing
executed by both parties and no act or omission of any employee or agent of
Landlord shall alter, change or modify any of the provisions hereof.
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11.17 Execution. This Lease may be executed in any number or original
counterparts. Each fully executed counterpart shall be deemed an original for
all purposes.
EXECUTED AS A SEALED INSTRUMENT
LANDLORD:
Witness Xxxxxxx Xxx Xxxxxx, as he is Trustee as
Print Name:_______________________ aforesaid and not individually
TENANT:
XXXXXXXXX & XXXX, INC.
By:_________________________________
Witness Xxx X. Xxxx, its duly authorized
Print Name:_______________________ President
XXXXXXXXX & XXXX, INC.
By:_________________________________
Witness Xxxxx X. Xxxxxx, its duly authorized
Print Name:_______________________ Treasurer
__________________________________
(attach corporate vote authorizing execution by the above officers)
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EXHIBIT A
DEMISED PREMISES
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EXHIBIT B
LEGAL DESCRIPTION OF THE PROPERTY
Two certain parcels of land with the buildings and improvements thereon
known as and numbered 000 - 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxx,
Xxxxxxxxxxxxx described as follows:
Parcel 1
A certain parcel of land with the buildings thereon in the City of Boston,
County of Suffolk and Commonwealth of Massachusetts, located at what is now
commonly known as 000 Xxxxxxx Xxxxxx, in said Boston, bounded and described as
follows:
Beginning at a point two hundred sixty-one (261) feet Westerly from Exeter
Street, and running thence
WESTERLY by Newbury Street, twenty-three (23) feet; thence
SOUTHERLY by a line running through the brick partition wall, one hundred
twelve (112) feet to a passageway sixteen (16) feet wide; thence
EASTERLY By said passageway twenty-three (23) feet;
and thence
NORTHERLY one hundred twelve (112) feet to the point of beginning
Also that portion of said passageway between the side lines of said lot extended
Southerly eight (8) feet.
Parcel 2
A certain parcel of land with the buildings thereon in the City of Boston,
County of Suffolk and Commonwealth of Massachusetts, located at what is now
commonly known as 000 Xxxxxxx Xxxxxx, in said Boston, bounded and described as
follows:
Beginning on Newbury Street at a point two hundred and eighty-four (284) feet
westerly from Exeter Street and running thence
WESTERLY On Newbury Street twenty-three (23) feet;
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SOUTHERLY through the center of the brick partition wall one hundred
twelve (112) feet to a passageway sixteen (16) feet wide;
thence turning and running
EASTERLY By said passageway twenty-three (23) feet;
NORTHERLY through the center of the brick partition wall, one hundred
twelve (112) feet to the point of beginning.
Also that portion of said passageway between the said lines of said lot extended
Southerly eight feet.
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EXHIBIT C
XXXXXXXX'S WORK
NONE
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EXHIBIT D
TENANT'S WORK
1/19/98
- Interior painting
- Repair and possible replacement of wallpaper
- Installation of security system
- Installation of phones and computers
- Other cosmetic repairs as needed
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EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls of the Building shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the
premises demised to any tenant or occupant.
2. No awnings or other projections shall be attached to the outside walls
or windows of the Building without the prior consent of Landlord. No curtains,
blinds, shades, or screens shall be attached or hung in, or used in connection
with, any window or door of the premises demised to any tenant or occupant,
without the prior consent of Landlord. Any such awnings, projections, curtains,
blinds, shades, screens, or other fixtures permitted by Landlord must be of a
quality type, design and color, and attached in a manner, approved by Landlord.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted or affixed on any part of the outside or inside of
the premises demised to any tenant or occupant or of the Building without the
prior consent of Landlord. Interior signs on doors and directory tables, if
any, shall be of a size, color and style approved by Landlord.
4. The sashes, sash doors, skylights, windows, and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed, nor shall any bottles, parcels, or
other articles be placed on any window xxxxx.
5. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors,
vestibules or other exterior parts of the Building.
6. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein.
7. No tenant or occupant shall mark, paint, drill into, or in any way
deface any part of the Building or the premises demised to such tenant or
occupant. No boring, cutting or stringing of wires shall be permitted, except
with the prior consent of the Landlord, and as Landlord may direct. No tenant or
occupant shall install any resilient title or similar floor covering in the
Premises demised to such tenant or occupant except in a manner approved by
Landlord.
8. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the premises demised to any tenant or occupant. Bicycles may be
stored in racks, if any, furnished for such purpose by Landlord in a common area
of the Building. No cooking shall be done or permitted in the Building by any
tenant without the approval of Landlord. No tenant or occupant shall cause or
permit any unusual or objectionable odors to emanate from the premises demised
to such tenant or occupant.
9. Without the prior consent of Landlord, no space in the Building shall be
used for manufacturing, or for the sale of merchandise, goods or property of any
kind at auction.
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10. No tenant or occupant shall make or permit to be made, any unseemly or
disturbing noises or disturb or interfere with other tenants or occupants of the
Building or neighboring buildings or premises whether by the use of any musical
instrument, radio, television set or other audio device, unmusical noise,
whistling, singing, or in any other way. Nothing shall be thrown out of any
doors or windows.
11. Each tenant or occupant must, upon the termination of its tenancy,
restore to Landlord all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such tenant or occupant.
12. All removal from the Building, or the carrying in or out of the
Building or the premises demised to any tenant or occupant, of any safes,
freight, furniture, or bulky matter of any description (except Tenant's
inventory) must take place at such time and in such manner as Landlord or its
agents may determine, from time to time. Landlord reserves the right to inspect
all freight to be brought into the Building and to exclude from the Building all
freight which violates any of the Building Rules or the provisions of such
tenant's or occupant's lease.
13. No tenant or occupant shall use or occupy, or permit any portion of the
premises demised to such tenant or occupant to be used or occupied, as an office
for a public stenographer or typist, or for a xxxxxx or manicure shop, or as an
employment bureau. No tenant or occupant shall engage or pay any employees in
the Building, except those actually working for such tenant or occupant in the
Building.
14. Landlord shall have the right to prohibit any advertising by any tenant
or occupant which is on the Property or proximate thereto, and which in
Landlord's opinion, tends to impair the reputation of the Building or its
desirability as a building for offices, and upon notice from Landlord, such
tenant or occupant shall refrain from or discontinue such advertising.
15. Except consistent with the Permitted Uses hereunder, no Tenant or
occupant shall purchase spring water, ice, food, beverage, lighting,
maintenance, cleaning towels or other like service, from any company or person
not approved by Landlord, such approval not unreasonably to be withheld,
excluding meal orders in the normal course of business. Landlord acknowledges
and agrees that notwithstanding the foregoing sentence, Tenant is permitted to
engage in the purchase, use and retail sale of the foregoing items in connection
with its Permitted Uses.
16. Landlord reserves the right to exclude from the Building, between the
hours after 11:00 p.m. and before 8:00 a.m. on business days (and after 10:00
p.m. on Saturdays and Sundays ) and at all hours on all other days, all persons
who do not present a pass to the Building signed by the Landlord. Landlord will
furnish passes to persons for whom any tenant or occupant requests such passes.
Each tenant or occupant shall be responsible for all persons for whom it
requests such passes and shall be liable to Landlord for all wrongful acts of
such persons.
17. Each tenant or occupant, before closing and leaving the premises
demised to such tenant or occupant at any time, shall see that all entrance
doors are locked and windows closed.
18. Each tenant or occupant shall, at its expense, provide artificial light
in the premises demised to such tenant or occupant for Landlord's agents,
contractors, and employees while performing janitorial or other cleaning
services and making repairs or alterations in said premises.
19. No premises shall be used, or permitted to be used, for lodging or
sleeping, or for any immoral or illegal purpose.
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20. There shall not be used in the Building, either by any tenant or
occupant or by their agents or contractors, in the delivery or receipt of
merchandise, freight or other matter, any hand trucks or other means of
conveyance except those equipped with rubber tires, rubber side guards and such
other safeguards as Landlord may require.
21. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant and occupant shall cooperate in seeking their prevention.
22. If the premises demised to any tenant or occupant become infested with
vermin (caused by Xxxxxx's activities on the Property), such tenant or occupant,
at its sole cost and expense, shall cause its premises to be exterminated from
time to time, to the satisfaction of Landlord, and shall employ such
exterminators therefore as shall be approved by Landlord.
23. No tenant or occupant shall move, or permit to be moved, into or out of
the Building or the premises demised to such tenant or occupant, any heavy or
bulky matter (except Tenant's inventory), without the specific approval of
Landlord. If any such matter requires special handling, only a person holding a
Master Riggers license shall be employed to perform such special handling. No
tenant or occupant shall place, or permit to be placed, on any part of the floor
or floors of the premises demised to such tenant or occupant, a load exceeding
the floor load per square foot which such floor was designed to carry and which
is allowed by law. Landlord reserves the right to prescribe the weight and
position of safes and other heavy matter, which must be placed so as to
distribute the weight.
24. The requirements of tenants or occupants will be attended to only upon
application at the office of the Building. Building employees shall not be
required to perform, and shall not be requested by any tenant or occupant to
perform, any work outside of their regular duties, unless under specific
instructions from the office of the managing agent of the Building.
25. Tenants or occupants shall prevent the wasteful use of utilities within
the premises demised to them.
26. Locks to premises shall not be changed or added without permission of
the Landlord.
27. There shall be no smoking in the common areas of the Building.
28. The Landlord shall have the right to make such further reasonable rules
and regulations as it deems necessary.
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