HomeMy WebLinkAbout0540 Main Street - PLANS (3) r HYANNIS FACTORY OUTLET CENTER
25 NEW CHARDON STREET e _
BOSTON, MASSACHUSETTS 02114
May 10, 1993
VIA CERTIFIED MAIL RETURN �RE�EIPT
L�1.
REQUESTED P406 743 THONE 617 523-3775
Dean Vernon Beuke, Ph.D.
Cape Cod Community College
Route 132
West Barnstable, MA 02668
RE: Lease for Premises at Hyannis Factory Outlet Center Hyannis MA
Dear Dean Beuke:
At your request, enclosed please find two original executed copies of
the above-referenced Lease, together with two original counterparts of
the Assignment of Lease, and one original photocopy of a Promissory
Note.
In accordance with the terms of your Lease, monthly rental payments
should be made payable to Hyannis Factory Outlet Center, and mailed on
or before the first day of each month in advance, to Hyannis Factory
Outlet Center, Penthouse Suite Two, 25 New Chardon Street, Boston, MA,
02114-4771, in a sufficient amount of time so as to be received in our
offices on or before the first day of each month in advance.
A breakdown of your monthly charges, effective June 1, 1993, is as
follows:
Fixed Minimum Rent: $ 2,266.67
Additional Rent-CAM/Taxes: 1, 124.70
Note Receivable: 1,776.98
TOTAL: $ 5,168.35
Please provide us with copies of your onstruction plans and
specifications as soon as they are available, as well as a drawing of
your proposed signage.
Should you have any questions, please feel free to contact me. The
keys may be obtained directly from our maintenance superintendent, Mr.
Paul Finlay, at (508) 771-2322.
We wish you the very best.
Sincerely,
HY IS FACTORY OUTLET CENTER
o ert A. lager, CPA"(_
RAS/es
cc: C. Gerard Drucker (w/original)
File (w/original)
Eric R. Allon, Esquire (w/copy)
R-04/29/93
r
6233
RETAIL LEASE
OF PREMISES IN THE HYANNIS FACTORY OUTLET CENTER
TO
CAPE COD COMMUNITY COLLEGE
EDUCATIONAL FOUNDATION, INC.
r
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE ("Assignment" or "Assignment of Lease") is
made as of the 22nd day of April, 1993, by and among CAPE COD COMMUNITY
COLLEGE EDUCATIONAL FOUNDATION, INC., a Massachusetts nonprofit
corporation, of Barnstable, Massachusetts (hereinafter "Tenant"), CAPE COD
COMMUNITY COLLEGE DIVISION OF CONTINUING EDUCATION, a political
subdivision of the Commonwealth of Massachusetts, of West Barnstable,
Massachusetts (hereinafter "Assignee"), and BASSETT LIMITED PARTNERSHIP, a
Massachusetts limited partnership, acting by and through Wilston Corp., a
Massachusetts corporation, its sole general partner, and C. Gerard Drucker, as he is
Trustee of the D & C TRUST under a Declaration of Trust dated November 28, 1983,
filed with the Barnstable County Registry District of the Land Court as Document No.
326659 and not individually ("Trustee of D&C Trust") (Bassett Limited Partnership and
Trustee of D&C Trust are hereinafter collectively called "Landlord").
RECITALS:
WHEREAS, Landlord and Tenant entered into a lease of even date (the
"Lease") for premises known as Store No. H-7 (the "Premises") in the Outlet Building in
the Hyannis Factory Outlet Center, Hyannis, Massachusetts; and
WHEREAS, Tenant desires to assign the Lease to Assignee; and
WHEREAS, Landlord agrees to consent to the assignment of the Lease
to Assignee subject to and conditioned upon the terms and conditions of this
Assignment;
NOW, THEREFORE, for good and valuable consideration, and in
consideration of the terms, conditions and covenants herein contained, Tenant,
Assignee, and Landlord agree to the following:
1. Tenant does hereby assign to Assignee the Lease, the Premises
and all of its right and interest in and under the same and Assignee hereby accepts the
assignment of the Lease, the Premises and all of Tenant's rights and interests in and
under the same.
2. Tenant hereby covenants with Assignee to Landlord that the Lease
is good and effectual at law, has not been surrendered, forfeited or rendered void or
voidable, and that this Assignment is valid and effectual to transfer all of Tenant's rights
under the Lease subject to the terms and provisions of this Assignment.
3. Conditioned upon the other terms hereof, Landlord consents to the
foregoing Assignment of Lease, provided that this consent is upon the express
condition that no further assignment of the Lease shall be made without the written
consent of Landlord. Landlord further agrees that in,consideration of the terms and
conditions of this Assignment, Tenant is relieved of its obligations and liabilities under
the Lease. Landlord will consent to Assignee's subletting of the Premises solely upon
the following conditions: (1) that Assignee and the subtenant enter into an Agreement
of Subletting in form acceptable to Landlord and that Landlord's expenses in reviewing
the form will be paid by Assignee; (2) that the subtenant be a Commonwealth of
Massachusetts college or other educational political subdivision of the Commonwealth
of Massachusetts; (3) that the subtenant be bound jointly and severally with Assignee
and Tenant for the obligations under the Lease, including without implied limitation the
use provisions; and (4) that the provisions of Section 7.12 of the Lease be complied
with in connection with the subletting.
4. In consideration of the foregoing Assignment and in consideration
of the consent by Landlord to the Assignment, Assignee represents, warrants and
covenants to Landlord to pay all Fixed Minimum Rent, Additional Rent, and all charges
and amounts due and payable under the Lease at the time the same shall be due
under the Lease and to perform all agreements, covenants and conditions in the Lease
which are to be performed and observed on the part of Tenant.
5. In consideration of Landlord entering into this Assignment and
releasing Tenant of all obligations and liabilities under the Lease, Tenant releases
Landlord of all obligations and liabilities under the Lease to Tenant and agrees that
Tenant shall have no rights under the Lease.
6. Assignee represents, warrants and covenants to Landlord that: (a)
Assignee's obligations under the Lease are fully authorized and the binding obligations
of the Assignee, (b) the execution and delivery of this Assignment is in compliance with
all applicable laws, (c) the obligations of Assignee under the Lease pursuant to this
Assignment do not constitute a pledging of the credit of the Commonwealth of
Massachusetts, and (d) no legislatively appropriated funds shall be used by Assignee
to pay obligations under the Lease.
EXECUTED as a sealed instrument the day and year first above written.
CAPE COD COMMUNITY COLLEGE
EDUCATIONAL FOUNDATION, INC.
By: 11 4 qal�z —
Witness onald Earnshaw, Chairman
Duly Authorized
[SIGNATURES CONTINUED ON NEXT PAGE.]
_ 2
.... . ...._..
}
CAPE COD COMMUNITY COLLEGE
DIVISION OF CONTINUING EDUCATION
PJ' By: i
Witness Richard Kraus, President
Duly Authorized
BASSETT LIMITED PARTNERSHIP,
a Massachusetts limited partnership
acting by and through Wilston Corp.,
its sole General Partner
Witness S. Lawrence Schlager
Its President
D&C TRUST
2� By: C Y .e
ness C. Ger rd Drucker, Trustee as
aforesaid and not individually
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CLERK'S CERTIFICATE
The undersigned hereby certifies that he/she is the Clerk of Cape Cod
Community College Educational Foundation, Inc., a Massachusetts nonprofit
corporation and that the execution and delivery of the foregoing Assignment of Lease
by Donald Earnshaw, the Chairman of the corporation, has been duly authorized by a
vote of the directors and shareholders of the Corporation which is in full force and
effect as of this day and that Donald Earnshaw has in fact signed the foregoing
Assignment of Lease.
Seal ATTEST:
-Sterk
Date: --G , 19f�
CLERK'S CERTIFICATE
The undersigned hereby certifies that he/she is the Clerk of Cape Cod
Community College Division of Continuing Education, a political subdivision of the
Commonwealth of Massachusetts, and that the execution and delivery of the foregoing
Assignment of Lease by Richard Kraus, the President of the corporation, has been duly
authorized by a vote of the directors and shareholders of the Corporation which is in
full force and effect as of this day and that Richard Kraus has in fact signed the
foregoing Assignment of Lease.
Seal ATTEST:
Date: c/ ,� / 9 7 , 1993
L
35823✓4
6245: 04/29/93 04:17 PM
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SUMMARY OF BASIC TERMS
RETAIL LEASE
OF PREMISES IN THE HYANNIS FACTORY OUTLET
TO
CAPE COD COMMUNITY COLLEGE
EDUCATIONAL FOUNDATION, INC.
DATED: AS OF APRIL 22, 1993
The following is a summary of certain basic terms of this Lease which is
intended for the convenience and reference of the parties. In addition, some of the
following items or terms are incorporated into the Lease by reference to the item or
term or to this "Summary of Basic Terms".
1. Premises: The store designated as No. H-7 located in the "Outlet Building° in
the "Hyannis Factory Outlet Center" located in Hyannis, Massachusetts as
depicted on Exhibit "A".
2. Agproximate Square Footage in the Premises: An agreed upon 6,520 square
feet (40 feet front and 163 feet depth).
2.A. Delivery Date: As of April 22, 1993.
2.8. Completion Date: June 22, 1993
2.C. Landlord's Work: None.
2.D. Tenant's Work: As set forth in Section 2.4 of the Lease and on Exhibits "C" and
"C-1."
3. Initial Lease Term: From the Commencement Date until May 31, 1996.
3.A. Commencement Date: May 1, 1993.
3.8. Extended Term(s): One successive period of two years at Tenant's election,
provided notice of extension is given to Landlord at least one (1) year prior to the
expiration of the Initial Lease Term.
Page 1 of 3 Pages
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2 .
4. Fixed Minimum Rent:
A. During the Initial Term, from the Commencement Date through May 31,
1994, at the annual rate of $27,200 ($2,266.67 per month); from June 1,
1994, through May 31, 1995, at the annual rate of $28,900 ($2,408.33 per
month); and from June 1, 1995, through May 31, 1996, at the annual rate
of $30,000 ($2,500.00 per month); and
B. During the Extended Term at the annual rate of $31,800 ($2,650.00 per
month).
5. Additional Rent:
A. Percentage Rent equal to n/a percent ( %) of Gross Sales
in each Lease Year in excess of the applicable Floor of Gross Sales for
such Lease Year; the Floor of Gross Sales during the Initial Term shall be
n/a ; during the Extended Term the floor of Gross Sales
shall be n/a ;
B. Tenant's Percentage of Outlet Center Real Estate Taxes; payable
Monthly;
C. Tenant's Percentage of Outlet Center Operating Costs; Payable Monthly;
D. Tenant's Percentage of Outlet Building Operating Costs; Payable
Monthly;
E. Grand Opening Charge: n/a.
F. Promotional Fund Charge: n/a.
G. Other Additional Rent: Includes all fees, charges, expenses, fines,
assessments or other sums due under this Lease other than those speci-
fied in Sections 5.A through 5.17 above.
H. Notwithstanding anything to the contrary contained herein, during each
lease year of the Initial Lease Term only, Tenant shall pay an amount not
in excess of $13,496.40 per annum ($1,124.70 per month) ("Outlet Cap")
for Tenant's Percentage of Outlet Center Real Estate Taxes, Tenants
Percentage of Outlet Building Operating Costs and Tenant's Percentage
of Outlet Center Operating Costs, but the Outlet Cap shall not apply to
any other amounts due under the Lease and shall not apply to the
Extended Term.
Page 2 of 3 Pages
5 _
6. Use: Only for education, training, counseling and administrative activities, and
for no other u§e.
7. Tenant's Trade Style: Cape Cod Community College - Hyannis Campus
8. Security Deposit: None.
9. Guarantor: None.
10. Broker: Grant and Lee Real Estate, Hyannis, Massachusetts
11. Hours of Operation: 8:00 A.M. to 10:00 P.M. daily, except Saturdays and
Sundays, closings due to inclement weather, and such state, federal or colle-
giate holidays as are recognized by Cape Cod Community College Division of
Continuing Education, a political subdivision of the Commonwealth of
Massachusetts.
12. Tenant's Address For Notices and Telephone Number:
Cape Cod Community College
Educational Foundation, Inc.
Route 132
West Barnstable, Massachusetts 02668
Telephone No.: (508) 362-8050
Page 3 of 3 Pages
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7
TABLE OF CONTENTS
Pa9.�
ARTICLE i
Section 1.1 The Hyannis Factory Outlet Center; The Outlet
Building; Common Area; Common Facilities and
Premises ............................................................................ 1
Section 1.2 Lease of the Premises........................................................ 1
Section 1.3 Common Rights.................................................................. 1
ARTICLE 11
Section2.1 Lease Term ........................................................................ 2
Section 2.2 Commencement Date.........................................
Section 2.3 Tenant's Right to Extend.................................................... 2
Section 2.4 Tenant's Work.................................................................... 2
Section 2.5 Approval of Plans and Specifications................................. 3
Section 2.6 Signs and Sign Criteria...................................................... 3
ARTICLE III
Section 3.1 Fixed Minimum Rent...........................
Section 3.2 Certain Additional Rent.....................................
ARTICLE 1V
Section 4.1 Percentage Rent................................................................ 4
Section 4.2 Gross Sales Defined .......................................................... 4
Section 4.3 Tenant's Records............................................................... 4
Section 4.4 Tenant's Reports................................................................ 4
Section 4.5 Inspections and Audits....................................................... 4
Section 4.6 Failure to do Business..........................:.:........................... 4
Section 4.7 Inclusion of Other Locations............................................... 4
Section 4.8 Certain Definitions Applicable to Tenant"**'********''*"*'*"****
of Outlet Center Real Estate Taxes and Outlet Center
OperatingCosts................................................................. 4
Section 4.9 Payment of Percentage of Outlet Center Real Estate
Taxes.................................. 5
Section 4.10 Common Area and Other Center Operating Costs............. 5
Section 4.11 Tenant's Percentage of Outlet Building Costs ................... 6
Section 4.12 Grand Opening Charge; Promotional Fund Charge........... 7
i
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ARTICLE V
Section5.1 Use..................................................................................... 7
Section 5.2 Prohibited and Required Uses........................................... 7
Section 5.3 Tenant's Additional Responsibilities .................................. 8
ARTICLE VI
Section 6.1 Landlord's Common Area Services.................................... 8
Section 6.2 Repair Services to Premises....................................
Section 6.3 Interruption; Delay.............................................................. 8
ARTICLE VII
Section7.1 Rent.................................................................................... 9
Section 7.2 Utilities if Separately Metered ............................................ 9
Section7.3 No Waste ........................................................................... 9
Section 7.4 Maintenance; Repairs, and Yield-Up ................................. 9
Section 7.5 Trade Fixtures and Equipment........................................... 10
Section 7.6 Compliance with Laws and Insurance Requirements......... 10
Section 7.7 Contents at Tenant's Risk.................................................. 11
Section 7.8 Indemnity............................................................................ 11
Section 7.9 Landlord's Access.............................................................. 12
Section 7.10 No Liens............................................................................. 13
Section 7.11 Compliance with Regulations............................................. 13
Section 7.12 Subletting and Assignment................................................. 13
Section 7.13 Keep Open......................................................................... 13
Section 7.14 Relocation of Premises ...................................................... 14
ARTICLE Vill
Section 8.1 Subordination to Mortgages............................................... 14
Section 8.2 Lease Superior at Mortgagee's Election ........................... 14
Section 8.3 Notice to Mortgagee........................................................... 14
Section 8.4 Estoppel Certificate By Tenant and Other Documents....... 15
ARTICLE IX
Section 9.1 Eminent Domain; Right to Terminate and Abatement
inRent.............................................. ............................... 15
Section 9.2 Restoration......................................................................... 16
Section 9.3 Landlord to Control Eminent Domain Action ...................... 16
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ARTICLE X
Section 10.1 Damage From Casualty...................................................... 17
Section 10.2 Abatement of Rent ............................................................. 17
Section 10.3 Limitation on Landlord's and Tenant's Obligations ............ 17
Section 10.4 Landlord's Right to Terminate............................................ 17
Section 10.5 Tenant's Right to Terminate............................................... 18
ARTICLE XI
Section 11.1 Tenant's Default................................................................. 18
Section 11.2 Landlord's Remedies.......................................................... 19
Section 11.3 Reimbursement of Landlord............................................... 20
Section 11.4 Landlord's Right to Perform Tenant's Covenants............... 20
Section 11.5 Cumulative Remedies ........................................................ 21
Section 11.6 Expenses of Enforcement .................................................. 21
Section 11.7 Landlord's Default.............................................................. 21
Section 11.8 Limitation of Landlord's Liability......................................... 21
Section 11.9 Security Deposit................................................................. 22
ARTICLE XII
Section 12.1 Broker...........................................
Section 12.2 Quiet Enjoyment................................................................. 22
Section12.3 Notices ............................................................................... 22
Section 12.4 Waiver of Subrogation ....................................................... 22
Section 12.5 Entire Agreement; Execution, Headnotes and Authority.... 23
Section 12.6 Partial Invalidity.................................................................. 23
Section12.7 No Waiver.......................................................................... 23
Section12.8 Holdover............................................................................. 24
Section 12.9 Summary of Basic Terms ................................................... 24
Section 12.10 Grand Opening and Promotional Fund ............................:. 24
Section 12.11 When Lease Becomes Binding.......................................... 24
Section 12.12 "AS IS" Condition ............................................................... 25
Section 12.13 No Recordation .................................................................. 25
Section 12.14 Tenant's Request for Landlord's Action ............................. 25
Section 12.15 Additional Provisions.......................................................... 25
Section12.16 No Guaranty....................................................................... 25
SIGNATUREPAGE ........................................................................................... 25
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s
EXHIBITS
Exhibit "A": Plan Depicting Outlet Center, Outlet Building and Premises
Exhibit "B": Landlord's Work
Exhibits "C"
and "C-1": Tenant's Work
Exhibit "D": Sign Criteria
Exhibit "E": Copy of $20,000 Note
2654
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RETAIL LEASE
LEASE made as of the 22nd day of April, 1,993,. between BASSETT LIMITED
PARTNERSHIP, a Massachusetts limited partnership, acting by and through Wilston
Corp., a Massachusetts corporation, its sole general partner, and C. Gerard Drucker,
as he is Trustee of the D & C TRUST under a Declaration of Trust dated November 28,
1983, filed with the Barnstable County Registry District of the Land Court as Document
No. 326659 and not individually ("Trustee of D&C Trust") (Bassett Limited Partnership
and Trustee of D&C Trust are hereinafter collectively called "Landlord") and CAPE
COD COMMUNITY COLLEGE EDUCATIONAL FOUNDATION, INC., a Massachusetts
corporation having a place of business at Route 132, West Barnstable, Massachusetts
02668 (hereinafter called "Tenant").
WITNESSETH:
ARTICLE
Section 1.1 The Hyannis Factory Outlet Center: The Outlet Building: Common
Areas: Common Facilities and Premises. Exhibit "A" which is annexed hereto and
made a part hereof depicts the present perimeter and approximate size and layout of
Landlord's Hyannis Factory Outlet Center in Hyannis, Massachusetts ("Shopping
Center" or "Outlet Center") which includes the "Outlet Building" which is adjacent to
Bassett Lane (a free standing building having approximately 40,000 square feet of
leasable space), "Strip Stores" which front on Main Street (free standing building hav-
ing approximately 12,000 square feet of leasable space) and "Center Common Areas"
consisting of parking areas, driveways, walks and open areas. There are also Outlet
Building "Common Facilities" consisting of an electrical system, a sprinkler system,
lavatories, hallways, entrances and exits serving the Outlet Building. The "Premises"
leased hereunder are designated as Store No. H-7 in the Outlet Building as depicted
on Exhibit "A".
Section 1.2 Lease of the Premises. The Landlord does hereby lease the
Premises to the Tenant, and the Tenant hereby leases the Premises from the Landlord,
upon and subject to the terms and provisions of this Lease.
Section 1.3 Common Rights. The Premises are leased subject to, and with the
benefit of, the non-exclusive right to use in common with others at any time entitled
thereto the Center Common Areas and the Outlet Building Common Facilities for all
such purposes as such areas maybe reasonably designated, but only in connection
with business in the Shopping Center and the Outlet Building. Landlord shall have the
right from time to time to designate or change the locations, size or configuration of the
Center Common Areas including, without limitation, the parking areas, approaches,
exits, entrances, and roadways, and to permit expansion of construction and new con-
struction therein so long as such changes do not materially and adversely affect the
business operations of the Tenant in the Premises or the Outlet Building or reduce the
parking area to less than 5 spaces per 1 ,000 square feet of retail selling space in the
Outlet Center. Landlord shall have the right to designate specific areas for parking by
employees of Tenant.
ARTICLE 11
Section 2.1 Lease Term. TO HAVE AND TO HOLD for the term beginning with
"the Commencement Date of Lease Term", as set forth in Item 3. of the Summary of
Basic Terms and ending May 31, 1996 ("the Initial Lease Term").
Section 2.2 Commencement Date. The "Commencement Date of the Lease
Term" shall be the date set forth in Item 3.A of the Summary of Basic Terms.
Section 2.3 Tenant's Right to Extend. Provided the Tenant is not in default
beyond any applicable grace period provided for herein, Tenant shall have the right to
extend the term of this Lease for the successive periods set forth in Item 3.A. of the
Summary of Basic Terms by giving the Landlord written notice so specifying at least
one (1) year prior to the expiration date of the Initial Lease Term or the then effective
Extended Term. If such extension becomes effective, the Term of the Lease shall be
automatically so extended upon the same terms and conditions except that (i) Fixed
Minimum Rent and Percentage Rent shall be payable as set forth in items 4.B. and 5.A.
of the Summary of Basic Terms; and (ii) there shall be no further right to extend or
renew beyond the periods expressly set forth herein.
Section 2.4 Tenant's Work. Landlord has delivered the Premises to Tenant and
Tenant has accepted the Premises from Landlord as of the Delivery Date for Tenant's
Work as set forth on and subject to the conditions of Exhibits "C" and "C-1." (Exhibits
"C" and "C-1" are sometimes referred to herein as Exhibit "Cu.) There is no Landlord's
Work. Tenant agrees to complete Tenant's Work at Tenant's sole cost and expense by
the Completion Date subject only to delays caused by reasons beyond Tenant's
reasonable control ("Excusable Delay"); and if such work is not so completed as a
result of an Excusable Delay, the Completion Date shall be extended for a reasonable
period of time. All of Tenant's Work shall be done, at Tenant's sole cost and expense,
in a good and workmanlike manner using new and high quality materials and in
accordance with the provisions of all laws, rules, regulations and insurance
requirements applicable thereto and in such a manner so as not to interfere with the
use and occupancy of other tenants of the Shopping Center. Tenant may occupy the
Premises as of the Delivery Date for the purpose of performing Tenant's Work (which
shall include, whether or not so specified on Exhibit C, the fixturing and equipping of
the Premises so as to enable Tenant to open for and conduct business at the
Premises) subject to all of the terms and conditions of this Lease except that Tenant
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shall not be obligated to pay rent prior to the Commencement Date. Tenant shall be
responsible for the cost of all utilities and shall obtain such utilities in Tenant's name
from the Delivery Date through the term of this Lease, or any extension thereof.
Notwithstanding the status of Tenant's Work or any other contrary provision of this
Lease, Tenant shall commence paying Fixed Minimum Rent and Additional Rent on the
Commencement Date and continue to pay such amounts and all other amounts due
hereunder on and after the Commencement Date as provided herein.
Section 2.5 Approval of Plans and Specifications. If Tenant's Work as set forth
on Exhibit "C" does not refer to complete plans and specifications approved by Land-
lord, then Tenant shall promptly following execution of this Lease cause such complete
plans and specifications to be prepared at Tenant's cost and submitted to Landlord for
Landlord's prior written approval before Tenant's Work is commenced. Landlord shall
not unreasonably withhold or delay such approval.
Section 2.6 Signs and Sign Criteria. Tenant shall erect only such signs on the
exterior of the Premises as shall comply with legal requirements and the "Sign Criteria"
annexed hereto as Exhibit "D" and made a part hereof. Tenant shall maintain all of its
signs in good repair and condition.
ARTICLE III
Section 3.1 Fixed Minimum Rent. YIELDING AND PAYING therefor Fixed
Minimum Rent in the amount set forth in Items 4.A. and 4.B., respectively, of the
Summary of Basic Terms ("Fixed Minimum Rent") payable in equal monthly install-
ments of one-twelfth of the annual Fixed Minimum Rent which shall be paid without
offset for any reason, in advance, on the first day of each calendar month during the
term hereof following the Commencement Date, and also on the Commencement Date
and at the legal termination of this Lease, a proportionate part of the Fixed Minimum
Rent shall be paid for any part of a month. Rent shall be paid at Landlord's office at
25 New Chardon Street, Penthouse Suite Two, Boston, Massachusetts 02114, or at
such other place as Landlord shall from time to time designate in writing. Rent checks
shall be made payable to Hyannis Factory Outlet Center or to such other entity or
tradestyle as Landlord may designate from time to time in writing.
Section 3.2 Certain Additional Rent. The Tenant shall pay as Additional Rent
on account of Percentage Rent, Outlet Building Operating Costs, Outlet Center Operat-
ing Costs, Outlet Center Real Estate Taxes, Grand Opening Charge and Promotional
Fund Charge, the amounts more particularly set forth in Article IV hereof.
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ARTICLE 1V
Certain Additional Rent
Section 4.1 Percentage Rent. Not Applicable.
Section 4.2 Gross Sales Defined. Not Applicable.
Section 4.3 Tenant's Records. Not Applicable.
Section 4.4 Tenant's Reports. Not Applicable.
Section 4.5 Inspections and Audits. Not Applicable.
Section 4.6 Failure to do Business. If the Tenant should vacate, abandon, or
desert the Premises, or any portion thereof, or cease operating for a period of three (3)
consecutive business days, or five (5) business days within any thirty (30) day period,
except when prevented from doing so during any period of time when the Premises are
untenantable by reason of fire, casualty or other causes beyond the Tenant's reason-
able control, the Landlord shall have, in addition to all remedies herein provided, the
right to collect not only the Fixed Minimum Rent but also additional rent, including, but
not limited to, an amount equal to the annual Percentage Rent (pro rated) paid by the
Tenant in the lease year prior to such occurrence until such time as the Tenant shall
commence operating its business again; and such additional rent shall be deemed to
be liquidated damages in lieu of any Percentage Rent that might have been earned
during such period.
Section 4.7 Inclusion of Other Locations. Not applicable.
Section 4.8 Certain Definitions Applicable to Tenant's Payment of Outlet Center
Real Estate Taxes and Outlet Center Operating Costs. For the purpose of this
Article IV, Sections 4.8. through 4.10., inclusive, the following definitions shall apply:
(a) as used herein the term "Percentage" shall mean a fraction, expressed as a per-
centage, the denominator of which is the leased and occupied square footage of
premises in the Shopping Center on January 1st in each year and the numerator of
which is the Approximate Square Footage in the Premises as set forth in Item 2. of the
Summary of Basic Terms; (b) the term "Taxes" shall mean all taxes, assessments,
betterments, sewer entrance fees and public charges (including charges for the use of
municipal services if billed separately from other taxes), levied, assessed or imposed at
any time by any governmental authority upon or against the land with buildings, fix-
tures, signs and improvements thereon then comprising the Shopping Center. This
definition of Taxes is based upon the present system of real estate taxation in the
Commonwealth of Massachusetts; if taxes upon rentals or any other basis shall be
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substituted, in whole or in part, for the present ad valorem real estate taxes, the term
Taxes shall be deemed changed to the extent to which there is such a substitution for
the present ad valorem real estate taxes; (c) the term "Fiscal Year" shall mean July 1st
to the June 30th next following, or such other tax period as may be established by law
for the payment of Taxes; and (d) the term "Outlet Center Operating Costs" shall mean
the items set forth in Section 4.10. Notwithstanding anything to the contrary contained
herein, during each lease year of the Initial Lease Term only, Tenant shall pay an
amount not in excess of $13,496.40 per annum ($1,124.70 per month) ("Outlet Cap")
for Tenant's Percentage of Outlet Center Real Estate Taxes, Tenant's Percentage of
Outlet Building Operating Costs and Tenant's Percentage of Outlet Center Operating
Costs, but the Outlet Cap shall not apply to any other amounts due hereunder and shall
not apply to the Extended Term.
Section 4.9 Pavment of Percentage of Outlet Center Real Estate Taxes.
(a) Tenant shall pay to the Landlord as Additional Rent an amount equal to
Tenant's Percentage of the Taxes. Landlord shall furnish to Tenant a statement of the
Taxes payable during each Fiscal Year on or before October 1 and April 1 of each
Fiscal Year, or within thirty (30) days of the receipt of the tax bill for each semi-annual
installment of Taxes for such Fiscal Year, whichever is later. Tenant's Percentage of
the Taxes shall be payable to Landlord in equal monthly installments together with the
Fixed Minimum Rent (based upon the prior Fiscal Year's bill for Taxes) subject to
readjustment when the actual bill for Taxes is rendered.
(b) If, after Tenant shall have made any payment under this Section 4.9,
Landlord shall receive a refund of any portion of the Taxes paid on account of any
Fiscal Year in which such payments shall have been made as a result of an abatement
of such Taxes, by final determination of legal proceedings, settlement or otherwise
("Proceedings"), Landlord shall, within thirty (30) days after receiving the refund, pay to
Tenant the Percentage of the refund, which shall be adjusted if Tenant's original pay-
ment covered a shorter period than covered by the refund, less the expense (including,
but not limited to, reasonable attorneys' fees and appraisers' fees) allocable to Tenant's
share and incurred by Landlord in connection with any such application or proceeding.
Landlord shall have sole control of all tax abatement proceedings.
(c) If the Commencement Date of this Lease is not on July 1, or the expiration or
termination of this Lease is not on June 30th, the Tenant's obligation in respect of
Taxes shall be prorated. If the tax bill for the Fiscal Year in which such expiration or
termination occurs shall not have been received by Landlord, then within thirty (30)
days after the receipt of the tax bill for such Fiscal Year, Landlord and Tenant shall
make appropriate adjustments of estimated payments.
Section 4.10 Common Area and Other Center O grating Costs. Tenant shall
pay as Additional Rent its Percentage of Outlet Center Operating Costs in monthly
installments together with the Fixed Minimum Rent. Initially estimated payments
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thereof shall be at the rate set forth in Item 5.C. of the Summary of Basic Terms; at the
end of each lease year proper readjustment shall be made; and thereafter the esti-
mated monthly charge shall be based upon the actual charges for the prior lease year.
Landlord shall provide Tenant upon request with reasonable supporting documenta-
tion for the Outlet Center Operating Costs. "Outlet Center Operating Costs" shall
include those costs of operating and maintaining, or of causing the operation and
maintenance of, the Outlet Center Common Areas, and also of insuring the buildings,
improvements and other items then comprising the entire Shopping Center. The
amounts to be so expended shall be those which the Landlord deems to be reasonable
and appropriate including, but not limited to, all costs and expenses whether expended
or incurred of repairing, lighting, cleaning, painting, and maintaining (including, but not
limited to, preventive maintenance) plowing and removing snow, sanding ice, and
removing rubbish and debris; inspecting, policing, providing security and regulating
traffic; rental and depreciation (over a period not exceeding sixty (60) months) of
machinery and equipment and other non real estate assets used in the operation and
maintenance of the Shopping Center; repairing and/or replacing of paving, curbs,
walkways, sidewalks, traffic islands, traffic lights, landscaping, landscape watering
systems, drainage, on-site water lines, sanitary sewer lines, storm water lines, electrical
lines and other equipment serving the property on which Shopping Center or any part
thereof is constructed or is to be constructed; graffiti removing; uniforms and replace-
ment of uniforms; all parking surcharges or other costs that may result from any envi-
ronmental or other laws, rules regulations, guidelines or orders; the cost of obtaining
and operating public transportation or shuttle bus systems used in connection with
bringing customers to the Shopping Center; the gross compensation of all personnel
required to supervise and accomplish the foregoing and an administrative charge equal
to fifteen percent (15%) of the total of all Outlet Center Operating Costs (exclusive of
such administrative charge and exclusive of insurance costs). Such Outlet Center
Operating Costs shall also include the cost of insuring the entire Shopping Center
together with the buildings and improvements now or hereafter situated thereon with
such policies and companies and in such limits as may be selected by Landlord, includ-
ing, but not limited to, fire insurance with extended or with all-risk coverage, liability
insurance covering personal injury, deaths and property damage with a personal injury
endorsement covering false arrest, detention or imprisonment, malicious prosecution,
libel and slander, and wrongful entry or eviction, umbrella liability coverage, difference
in conditions, workman's compensation insurance, plate glass insurance, contractual
liability insurance and fidelity bonds. Outlet Center Operating Costs shall not include
depreciation other than as specifically referred to above.
Section 4.11 Tenant's Percentage of Outlet Building Costs. As used in this
Section 4.11, "Tenant's Percentage" shall mean a fraction, expressed as a percentage,
the denominator of which shall be the leasable area in the Outlet Building and the
numerator of which shall be the Approximate Square Footage in the Premises set forth
in Item 2. of the Summary of Basic Terms. Tenant shall pay as Additional Rent
Tenant's Percentage of Outlet Building Costs in monthly installments together with the
Fixed Minimum Rent. Initially estimated payments shall be at the rate set forth in Item
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5.D. of the Summary of Basic Terms; at the end of each lease year proper readjust-
ments shall be made; and thereafter the estimated monthly charge shall be based upon
the actual charges for the prior lease year. Landlord shall provide Tenant upon request
with reasonable supporting documentation for the Outlet Building Operating Costs.
"Outlet Building Operating Costs" shall include the costs of operating and maintaining,
or of causing the operation and maintenance of, the Outlet Building Common Facilities.
The amounts to be so expended shall be those which the Landlord deems to be rea-
sonable and appropriate [or, in the case of utilities, the amounts actually billed by the
provider thereof to the Outlet Building as evidenced by billings from the public utility or
from the town] including, but not limited to, all costs and expenses whether expended
or incurred, in connection with providing heat, ventilation, air-conditioning, electricity,
gas, water, sprinkler systems, common lavatories, hallways, entrances and exits and
repairing, replacing, lighting, cleaning and maintaining the same (including, but not
limited to, preventive maintenance); rental and depreciation (over a period not exceed-
ing sixty (60) months) of machinery and equipment and other non-real estate assets
used to provide the same; repairs of and replacements to lights, lightbulbs and HVAC
equipment and of and to pipes, conduits, drains and meters serving the Outlet Building
[excluding any such items which are the responsibility of a specific tenant]; the gross
compensation of all personnel required to supervise and accomplish the foregoing and
an administrative charge equal to fifteen percent (15%) of the total of all such Outlet
Building Operating Costs (exclusive of such administrative charge). Outlet Building
Operating Costs shall not include depreciation other than as specifically referred to
above.
Section 412 Grand Opening Charge: Promotional Fund Charge. Not
Applicable.
ARTICLE V
Section 5.1 Use. The Premises shall be used and occupied by Tenant solely
for the retail purposes set forth in Item 6. of the Summary of Basic Terms, but subject to
the obligation of Tenant to obtain and keep in full force and effect all necessary
licenses required therefor from the Town of Barnstable and the Commonwealth of
Massachusetts.
Section 5.2 Prohibited and Required Uses. Tenant agrees that during the term
of this Lease all of the Premises will be used for the operation of its business; no
auction, fire, bankruptcy, going out of business or similar sale will be conducted or be
advertised as being conducted in the Premises without the prior written consent of
Landlord; no products, merchandise or equipment will be stored or displayed outside
the Premises; there shall be no sale or distribution of tobacco "papers," pipes of the
type and nature commonly associated with the smoking of marijuana (e.g. "water
pipes"), "roach clips," cocaine "spoons" and other types of novelty items, materials or
paraphernalia which are, or may be reasonably construed to be, intended for use in
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connection with narcotics, unlawful substances or controlled substances. Tenant will
procure and maintain in full force and effect all licenses and permits which may be
required for any use made of the Premises. No paper or other types of signs will be
installed on the interior or exterior of the storefront glass and aluminum system or on
the doors.
Section 5.3 Tenant's Additional Responsibilities. Tenant agrees that Tenant will
diligently keep the areas adjacent to the Premises free of all refuse and debris includ-
ing but not limited to the daily sweeping of the sidewalks and weekly cleaning of interior
and exterior of glass.
ARTICLE VI
Section 6.1 Landlord's Common Area Services. Landlord will furnish to the
outside Outlet Center Common Areas of the Shopping Center, grounds maintenance,
snow plowing and sanding, general maintenance repair services and replacements (to
the extent required in the reasonable opinion of the Landlord), including those referred
to in Section 4.110., but traffic control and security services shall be provided only at
Landlord's option. Landlord shall also provide to the Outlet Building the services and
facilities referred to in Section 4.11 above.
Section 6.2 Repair Services to Premises. Within a reasonable period of time
following receipt of notice of the need therefor, during the term of this Lease Landlord
will make necessary structural repairs in or to the Outlet Building with regard to: the
roof; common and bearing walls; structural columns and foundations (but not floors);
and the Outlet Building Common Facilities. Provided, however: (a) the cost for any
such repairs made necessary by any act, default or negligence of Tenant, its invitees,
employees, agents, licensees, or contractors may be charged entirely to the Tenant
who shall pay for the same as Additional Rent promptly upon billing therefor; (b) the
Tenant shall be solely responsible for its obligations under Section 7.4 with respect to
the Premises; (c) the Landlord's obligation to repair shall not extend to reasonable wear
and tear; and (d) damage from fire or other casualty, or taking by eminent domain shall
be governed by Articles IX and X of this Lease.
Section 6.3 Interruption: Delay. The Landlord shall be under no responsibility
or liability for failure or interruption of any such repairs or services referred to in this
Article VI, or for any interruption in utility services, caused by breakage, accident,
strikes, repairs, inability after exercise of reasonable diligence to obtain supplies or
otherwise furnish services, or for any cause or causes beyond the reasonable control of
Landlord (but Landlord, in respect of those matters for which Landlord is responsible,
will use reasonable efforts to restore such services or make such repairs as soon as
possible), nor in any event for any indirect or consequential damages; and failure or
omission on the part of the Landlord to furnish such service or make such repair shall
not be construed as an eviction of the Tenant, nor render the Landlord liable in
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damages, nor entitle Tenant to an abatement of rent, nor release the Tenant from the
obligation to fulfill any of the covenants under this Lease, except as provided in Articles
IX and X hereof with respect to eminent domain and damage by fire or other casualty.
ARTICLE VII
Section 7.1 Rent. Tenant will promptly pay the Fixed Minimum Rent, Additional
Rent, and any and all other charges payable by Tenant to Landlord (or to the appli-
cable provider of utilities) at the time and in the manner provided for in this Lease, all of
which shall be deemed to be obligations to pay Rent or Additional Rent.
Section 7.2 Utilities if Separately Metered. If Landlord installs separate meters
and connections for gas, electricity or other utilities, to be consumed only in the
Premises, then Tenant shall contract for in its own name and pay, as they become due
and payable, all charges for electricity, gas, water, sewer and power used or consumed
at the Premises and so separately metered and supplied.
Section 7.3 No Waste. Tenant shall not overload, damage or deface the
Premises nor shall it suffer or permit the same to be done, nor shall it commit any
waste.
Section 7.4 Maintenance: Repairs: and Yield-Up. Tenant agrees that, except
for and subject to completion of Landlord's Work, from and after the Delivery Date and
until the end of the term hereof, and during any holdover, it will keep the Premises neat
and clean and maintain the same in good repair and condition; the Tenant's obligation
to so maintain and repair the Premises shall apply to all of the Premises, including,
without limitation, all doors, plate glass and other glass, fixtures, interior walls, floors
and ceilings. There is excepted from Tenant's obligations under this section only dam-
age to such portions of the Premises originally constructed by Landlord as is caused by
those hazards which are covered by the policies of fire insurance with all risk or
extended coverage endorsements carried by Landlord with respect to the Shopping
Center ("Casualty") and repairs and Work which are otherwise the responsibility of the
Landlord hereunder. Tenant shall remove snow and ice and provide sanding and daily
sweeping of sidewalks adjacent to the Premises. At the end of the term or sooner ter-
mination, Tenant shall peaceably surrender or deliver up the 'Premises and all
erections, alterations and additions made to or upon the same (unless Landlord at its
option requests that Tenant remove any or all of such erections, alterations and addi-
tions as provided below), to Landlord, broom clean, with all utilities safely capped, and
in good repair and condition, damage by Casualty and obligations and defaults of
Landlord and reasonable wear and tear only excepted, and will remove all signs and
lettering and all personal property, goods and effects belonging to Tenant or anyone
claiming through or under Tenant. Tenant will not make any structural change in, or
addition to, the Premises without first obtaining, on each occasion, Landlord's consent
in writing, and then only at Tenant's expense, and in a lawful manner and upon such
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reasonable terms and conditions as Landlord, by such writing, shall approve. Any such
alteration or addition shall be consistent in appearance with the rest of the Premises,
the Outlet Building and the Shopping Center and shall be made only after duly obtain-
ing all required permits and licenses. Landlord, upon expiration of the term, shall retain
as its property, without cost to it, any erections, alterations or additions so made to the
Premises, unless at Landlord's option Landlord requests that Tenant remove any or all
of such erections, alterations or additions to the Premises (whether the same were
constructed by Landlord or Tenant), in which event, Tenant shall, at Tenant's sole cost
and expense, remove such erections, alterations and/or additions and repair the
Premises to as good condition as or better than existing upon the execution of this
Lease. Tenant will, upon the request of Landlord, deliver to Landlord in writing a
schedule setting forth the details and location of all such alterations or additions.
Tenant shall maintain a service contract for an HVAC system with Andrew's Refrigera-
tion & Heating, Inc. of Walpole, Massachusetts, or another HVAC contractor approved
in writing in advance by Landlord. Tenant shall supply Landlord with evidence of such
contract on the Commencement Date and deliver a copy of the renewal to the contract
ten (10) days prior to the expiration date of the contract. Such contract shall provide for
at least quarterly maintenance inspection and Tenant shall provide Landlord with writ-
ten evidence from the contractor that such inspection has occurred, that any repairs or
replacements which are necessary have been made, and that the HVAC system is in
good repair and condition.
Section 7.5 Trade Fixtures and Equipment. Any trade fixtures installed in, or
attached to, the Premises by, and at the expense of, Tenant shall remain the property
of Tenant if the same may be removed without damage to, or destruction of, the
Premises. Tenant shall have the right, at any time and from time to time during the
term of this Lease, to remove any and all of its trade fixtures, which it may have
installed in, or attached to, the Premises, during the term.
Section 7.6 Compliance with Laws and Insurance Requirements. Tenant, in its
use of the Premises and at its sole expense, shall comply with all laws, orders and
regulations of Federal, State, County and City authorities, and with any direction of any
public officer or officers, pursuant to law, which shall impose any violation, order or duty
upon Landlord or Tenant with respect to the use of the Premises, if the failure to so
comply would place the Landlord or Tenant in jeopardy of civil or criminal liability:
Tenant agrees that the Premises shall be kept in a sanitary and safe condition in
accordance with Federal and State laws and the by-laws, rules, regulations and ordi-
nances of the Town of Barnstable and Village of Hyannis, and in accordance with all
directions, rules and regulations of the Health Officer, Fire Marshall, Building Inspector
and other proper officers of the governmental agencies having jurisdiction thereover.
Tenant shall not do or permit to be done any actor thing upon the Premises which will
invalidate, or be in conflict with, fire insurance policies covering the Shopping Center,
or the Premises, and fixtures and property therein. Tenant, at its sole expense, shall
comply with all rules, orders, regulations or requirements of the Board of Fire
Underwriters, or any other similar body relating to Tenant's use of the Premises, and
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shall not do or permit anything to be done, in or upon the Premises, or bring or keep
anything therein, except as now or hereafter permitted by the Fire Department, Board
of Fire Underwriters, Fire Insurance Rating Bureau, or other authority having jurisdic-
tion and then only in such quantity and manner of storage as not to increase the rate
for the fire insurance applicable to the Shopping Center, or the Premises, or use the
Premises in a manner which shall increase the rate of fire insurance on the Shopping
Center, or on property located therein over the rate in effect at the commencement of
this Lease. If by reason of failure of Tenant to comply with the provisions of this
Section including, but not limited to, the use to which Tenant puts the Premises, the fire
insurance rate shall at the beginning of this Lease or any time thereafter be higher than
it otherwise would be, then Tenant shall reimburse Landlord, as Additional Rent here-
under, for that part of all fire insurance premiums thereafter paid by Landlord which
shall have been charged because of such failure or use by Tenant, and shall make
such reimbursement upon billing therefor by Landlord.
Section 7.7 Contents at Tenant's Risk. All inventory, equipment, goods,
merchandise, furniture, fixtures and property of every kind which may be on or about
the Premises shall be at the sole risk and hazard of Tenant, and if the whole or any part
thereof shall be destroyed or damaged by fire, water or otherwise, or by the use or
abuse of water or by the leaking or bursting of water pipes, or by rising water, or by roof
or other structural leak, or in any other way or manner, no part of such loss or damage
shall be charged to or borne by Landlord in any case whatsoever, except that to the
extent required by applicable Massachusetts law, the foregoing shall not exculpate the
Landlord from acts of its own negligence. Tenant agrees to maintain full and adequate
insurance coverage on all of its property at the Premises and in the Shopping Center,
including physical damage, theft and business interruption insurance, or Tenant shall
be a self-insurer thereof. Such insurance on Tenant's property shall contain a waiver
of subrogation clause in favor of Landlord, or shall name Landlord as an additional
insured for the sole purpose of preventing a subrogation claim against Landlord. If
Tenant is a self-insurer, in whole or in part, Landlord shall be entitled to the same
benefits it would have enjoyed had insurance covering the loss in full with a waiver of
subrogation clause been in effect, or as if the Landlord had been named on insurance
covering the loss in full as an additional insured for the purpose of preventing a sub-
rogation claim.
Section 7.8 Indemnity. Tenant agrees to indemnify and save harmless the
Landlord from and against all claims of whatever nature arising from any act, omission
or negligence of the Tenant, or Tenant's contractors or licensees, or of the agents, ser-
vants, employees or business invitees of Tenant, or Tenant's contractors or licensees,
or persons coming into the Premises for the purpose of visiting or dealing with any one
or one or more of the foregoing, or arising from any accident, injury or damage occur-
ring outside of the Premises but, in, on or about the Shopping Center, which such
accident, damage or injury results or is claimed to have resulted from the negligence or
misconduct on the part of Tenant or Tenant's contractors or licensees, or of the agents,
servants, employees or business invitees of Tenant, or Tenant's contractors or liven-
sees. This indemnity and hold harmless agreement shall include indemnity against all
costs, expenses and liabilities (including attorneys' fees) incurred in or in connection
with any such claim or proceeding brought thereon, and the defense thereof.
Tenant agrees to maintain in full force during the term hereof a policy of public
liability and property damage insurance under which the Landlord and the Tenant are
named as insureds. Each such policy shall be non-cancellable with respect to the
Landlord without thirty (30) days' prior written notice to Landlord and a duplicate origi-
nal or certificate thereof shall be delivered to Landlord. The minimum limits of liability
of such insurance shall be Five Hundred Thousand Dollars ($500,000.00) for injury (or
death) to any one person, and One Million Dollars ($1,000,000.00) for injury (or death)
to more than one person, and One Hundred Thousand Dollars ($100,000.00) with
respect to damage to property, together with an overall umbrella coverage of an .
additional Two Million Dollars ($2,000,000.00).
Tenant shall also provide and pay for window and plate glass insurance with
respect to the Premises in amounts and with companies satisfactory to Landlord, and
Tenant shall provide Landlord with a certificate evidencing such insurance and contain-
ing a provision that the same may not be cancelled without thirty (30) days' prior written
notice to Landlord; with the Landlord's prior written approval, Tenant may be a
self-insurer with respect to window and plate glass, but only while the Premises are
actually occupied by the Tenant and are generally open for business. Tenant shall
notify Landlord in writing prior to the Lease Commencement if Tenant self-insures plate
glass.
Tenant agrees that Landlord shall not be responsible or liable to the Tenant, or
to those claiming by, through or under Tenant, for any loss or damage that may be
occasioned by or through the acts or omissions of persons occupying or using adjoin-
ing premises or any part of the Shopping Center, or otherwise, or for any loss or
damage resulting to the Tenant or those claiming by, through or under Tenant, or its or
their property, except that to the extent required by applicable Massachusetts law, the
foregoing shall not exculpate the Landlord from acts of its own negligence.
Section 7.9 Landlord's Access. Landlord or its representatives shall have the
right without charge to it and without reduction in rent, at reasonable times and in such
manner as shall not unreasonably interfere with Tenant's business, to enter to view the
Premises for any reasonable purpose (including, without limitation, showing the
Premises to prospective purchasers, tenants and lenders) and, if Landlord so elects, to
make entry for the purpose of investigating repair or maintenance problems and to
make such repairs or changes as Landlord deems advisable, and to maintain use,
repair, replace, relocate or introduce pipes, ducts, wires, meters and any other Land-
lord's fixtures serving or to serve the Premises or other parts of the Shopping Center, or
to maintain or repair any portion of the Shopping Center, and, in case of an emergency,
whether resulting from circumstances in the Premises or elsewhere in the Shopping
Center, Landlord or its representative may enter the Premises (forcibly, if necessary) at
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any time to take such measures as may be needed to cope with such emergency.
Such access shall include, but not be limited to, the right to open floors, walls, ceilings,
and building systems for the foregoing purposes. Landlord may, during the twelve (12)
months next preceding the expiration of the Lease Term, show the Premises to parties
wishing to lease or purchase the same and to place a "For Lease" or "For Rent" sign in
the window or on the Premises.
Section 7.10 No Liens. Tenant shall not permit any mechanics', laborers' or
materialmen's liens to stand against the Shopping Center for any labor or materials
furnished to Tenant or claimed to have been furnished to Tenant in connection with
work of any character performed or claimed to have been performed in or on the
Premises by or at the direction or sufferance of the Tenant.
Section 7.11 Compliance with Regulations. Tenant covenants that Tenant, its
agents, employees, servants, licensees, invitees, and visitors will comply with all such
reasonable rules and regulations as Landlord may from time to time hereafter promul-
gate to regulate the conduct generally of all the tenants of the Shopping Center or of
the Outlet Building. Landlord, however, shall have the reasonable right to change said
rules and regulations and to waive any one or more of them in the case of any one or
more tenants.
Section 7.12 Subletting and Assignment. Tenant shall not assign, mortgage,
pledge or encumber this Lease nor underlet all or any part of the Premises without, on
each occasion, obtaining Landlord's written consent thereto, which consent may be
granted, conditionally granted, or withheld in Landlord's sole and absolute discretion for
any reason or for no reason. As used herein, the term "assign" or "assignment" shall
be deemed to include, without limitation: (a) any transfer of the Tenant's interest in the
Lease by operation of law, the merger or consolidation of the Tenant with or into any
other firm or corporation; or (b) the transfer or sale of a controlling interest in the
Tenant whether by sale of its capital stock or otherwise. In the event of the assignment
or subletting by the Tenant for which Landlord's written approval has been obtained,
Tenant shall remain primarily liable with the new tenant for the payment of any and all
rent and additional rent which may become due by the terms of this Lease and for the
performance of all covenants, agreements and conditions on the part of Tenant to be
performed hereunder. No such assignment or sublease shall be valid or effective
unless it is approved in advance in writing by Landlord and the assignee, or sublessee,
by a document satisfactory to Landlord, shall covenant in writing to be bound directly to
the Landlord. No modification of the terms of this Lease or any course of dealing
between Landlord and any assignee or sublessee of the Tenant's interest herein shall
operate to release or impair Tenant's obligations hereunder or the obligation of any
Guarantor.
Section 7.13 Keep Open. Tenant shall keep open the entire Premises for
business during all Hours of Operation on all days during the Lease Term (including
any exercised extensions thereof) except for: (i) legal holidays, college holidays, and
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days on which classes are cancelled due to inclement weather; (ii) hours or days when
Tenant is prevented from being open for reasons beyond its reasonable control; and
(iii) days and hours when less than fifty percent of the other premises (measured by
relative square footage] in the Outlet Building are open for business. If Tenant fails to
so keep open on more than ten days in any calendar year unless otherwise excused
hereunder, Landlord may, at its option, terminate this Lease.
Section 7.14 Relocation of Premises. Landlord reserves the unrestricted and
unconditional right, at Landlord's option, to relocate the Premises to substantially com-
parable space within the Shopping Center constructed at Landlord's cost. Landlord will
give Tenant written notice of its intention to relocate the Premises, and Tenant will
complete such relocation within thirty (30) days after receipt of such written notice. If
Tenant is relocated within the Shopping Center as provided in this Section 7.14, then
effective on the date of such relocation, this Lease will be amended by deleting the
description of the original Premises and substituting for it a description of such com-
parable space. Landlord agrees to reimburse Tenant for its actual moving costs to
such other space within the Shopping Center, to the extent such costs are reasonable.
ARTICLE VIII
Section 8.1 ,.Subordination to Mortgages. Tenant agrees that this Lease is and
shall be and remain subordinate to the lien of any present or future mortgage or mort-
gages, or ground lease, upon all or any part of the Shopping Center, irrespective of the
time of execution or time of recording of any such mortgage or mortgages,or ground
lease, and to all renewals, 'extensions, and modifications therefor or amendments
thereto. Tenant agrees that it will, upon request of Landlord, execute, acknowledge,
and deliver any and all instruments reasonably deemed necessary or desirable by
Landlord to give effect to, or notice of, such subordination. Upon the request of Land-
lord or any holder of a mortgage or ground lease on the Shopping Center, Tenant shall
enter into an attornment agreement with such mortgagee or ground lessee. Landlord
agrees to use reasonable efforts to obtain a non-disturbance of possession agreement
from all such mortgagees and ground lessors.
Section 8.2 Lease Superior at Mortgagee's Election: At the request in writing of
any mortgagee, or ground lessor, of the Shopping Center, this Lease shall be deemed
superior to such mortgage, or ground lease, whether this Lease was executed before or
after such mortgage, or ground lease, and Tenant shall execute such documents in
recordable form as such mortgagee, or ground lessor, shall request.
Section 8.3 Notice to Mortgagee. Upon receipt of a written request from the
Landlord or any holder of a mortgage, on all or any part of the Shopping Center, or the
ground lessor thereof, the Tenant will thereafter send any such holder copies of all
notices of default or termination or both given by the Tenant to the Landlord in accor-
dance with any provision of this Lease. In the event of any failure by the Landlord to
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perform, fulfill or observe any agreement by the Landlord herein or any breach by the
Landlord of any representation or warranty of the Landlord herein, any such holder may
at its election cure such failure or breach for and on behalf of the Landlord.
Section 8.4 Estoppel Certificate By Tenant and Other Documents. Tenant
agrees, at any time and from time to time, upon not less than ten (10) days' prior written
request by Landlord, (1) to execute, acknowledge and deliver to Landlord a statement
in writing certifying that (except as may be otherwise specified by Tenant): (a) this
Lease is presently in full force and effect and unmodified; (b) the Tenant has accepted
possession of the Premises; (c) any improvements required by the terms of this lease
to be made by the Landlord have been completed to the satisfaction of the Tenant; (d)
no rent under the Lease has been paid more than 30 days in advance of its due date;
(e) the addresses for notices to be sent to the Tenant is as set forth in the Lease or as
specified in such certificate; and (f) the Tenant as of the date of executing the certifi-
cate has no charge, lien or claim of offset under the Lease, or otherwise, against rents
or other charges due or to become due thereunder; and (2) to deliver information in
form satisfactory to Landlord concerning Tenant's operations, including but not limited
to historic and current financial statements of Tenant. Landlord shall, upon like request
by Tenant, give like certificates to Tenant. In addition, in the event the Tenant receives
written notice from the Landlord and the holder of a mortgage or ground lease on the
Shopping Center so requesting, the Tenant shall enter into a written agreement with
the holder of such mortgage or ground lease providing that: (1) the Tenant will not pay
any rent under the Lease more than thirty (30) days in advance of its due date; (2)
Tenant will not consent to the modification of any of the terms of this Lease nor to the
termination thereof by the Landlord; (3) Tenant will not seek to terminate this Lease by
reason of any act or omission of the Landlord until the Tenant shall have given written
notice of such act or omission to the holder of such mortgage or ground lease (at such
holder's last address furnished the Tenant) concurrently with giving such notice to
Landlord and following the giving of such notice such holder shall have the right, but
shall not be obligated, to remedy such act or omission within the time period provided
for in this Lease. Such agreement shall be of no effect unless the Tenant is furnished
by the mortgagee,or ground lessor, with a copy of an assignment to it of the Landlord's
interest in this Lease, and this agreement shall terminate upon the subsequent termi-
nation of such assignment.
ARTICLE IX
Section 9.1 Eminent Domain: Right to Terminate and Abatement in Rent. If the
Premises or any part thereof, or the whole or any substantial part of the Outlet Building
or of the Shopping Center, including, without limitation, any substantial part of the
parking areas, or access roads to the Shopping Center, shall be taken, or if a convey-
ance shall be made in anticipation thereof, for any street or other public use, by action
of the municipal, state, federal or other authorities, or shall receive any substantial
direct or consequential damage for which Landlord or Tenant shall be entitled to com-
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pensation by reason of anything lawfully done in pursuance of any public authority,
after the execution hereof and before the expiration of the term hereof, then this Lease
and the term hereof shall terminate at the election of Landlord (given by written notice
to the Tenant within 90 days of the taking or within 90 days of notice of the taking to
Landlord), and such election may be made in case of any such taking notwithstanding
the entire interest of Landlord may have been divested by such taking; and if the
Landlord does not so elect, then in case of any such taking or destruction of, or dam-
age to, the Premises, rendering the same or any part thereof unfit for use and occupa-
tion, a just proportion of the Fixed Minimum Rent hereinbefore reserved according to
the nature and extent of the injury sustained by the Premises, shall be suspended or
abated until the Premises or, in case of such taking, what may remain thereof, shall
have been put in proper condition for use and occupation. To the extent that the
Premises, upon having been put in proper condition for use and occupation are
smaller, the Fixed Minimum Rent hereinbefore reserved and Tenant's Percentage of
Taxes and Operating Costs shall be reduced for the balance of the lease term in the
same proportion which the reduction in space bears to the original square footage of
the Premises and/or in relation to the remaining leasable area in the Outlet Center and
the Outlet Building. In addition, if thirty percent (30%) or more of the Premises are so
taken, or if any substantial portion of the Outlet Building is so taken, or if any substan-
tial portion of the parking areas or access thereto are so taken, the Tenant may also
terminate this Lease upon written notice given within thirty days after the taking, or
within thirty days following notice thereof to Tenant, whichever is later.
Section 9.2 Restoration. If this Lease is not terminated as provided in Section
9.1, Landlord shall apply so much of the available proceeds of the eminent domain
award as are required to restore the Shopping Center and the Premises to a condition,
to the extent practical, substantially the same as that immediately preceding the taking,
but subject to zoning laws and building codes then in existence. If the available pro-
ceeds of the eminent domain award are insufficient for that purpose, Landlord shall
have no obligation to expend funds in excess of said proceeds and the Landlord shall
have the right to select which portions of the Shopping Center, if any, shall be restored.
The term "available proceeds" shall mean the amount of the award paid to Landlord,
less cost of obtaining the same (including attorneys' fees and appraisal fees) and less
that amount thereof required to be paid to a mortgagee or ground lessor.
Section 9.3 Landlord to Control Eminent Domain Action. Landlord reserves all
rights to compensation for damage to the Premises or any part thereof, or the leasehold
hereby created, heretofore accrued or hereafter to accrue, by reason of any taking for
public use of said Premises or any portion thereof, or right appurtenant thereto, or
privilege or easement in, through, under or over the same, and by way of confirmation
of the foregoing the Tenant hereby assigns all rights to such damages heretofore
accrued or hereafter accruing during the term or any extension hereof to the Landlord.
Provided, however, nothing herein contained shall limit the Tenant's right to any sepa-
rate award for the taking of personal property, moving expenses, or other items the
payment of which shall not reduce the award payable to Landlord.
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ARTICLE X
Section 10.1 Damage From Casuafty. In case following the execution hereof
and prior to the expiration of the term hereof the Premises shall be damaged or
destroyed in whole or in part by fire or other casualty, this Lease shall, except as here-
inafter provided in this Article X, remain in full force and effect and Landlord shall, upon
notice of such damage from Tenant and proceeding with reasonable dispatch, repair or
rebuild so much of the Premises as were originally constructed by Landlord to substan-
tially their condition at the time of such damage or destruction (subject, however, to
zoning laws and building codes then in existence), but Landlord shall not be responsi-
ble for any delay which may result by reason of adjustment of insurance claims, collec-
tion of insurance proceeds, labor troubles, or from any cause beyond Landlord's
reasonable control. Tenant shall concurrently repair or restore so much of the
Premises as was constructed by Tenant and shall repair and restore its fixtures and
personal property.
Section 10.2 Abatement of Rent. In the event that the provisions of
Section 10.1 of this ARTICLE X shall become applicable, the Fixed Minimum Rent shall
be abated or reduced proportionately during any period in which, by reason of any such
damage or destruction, there is substantial interference with the operation of the busi-
ness of Tenant in the Premises, having regard to the extent to which Tenant may be
required to discontinue its business in the Premises, and such abatement or reduction
shall continue for the period commencing with such destruction or damage and ending
with the substantial completion by Landlord of such work, repair and/or reconstruction
as Landlord may do. Nothing in this Section shall be construed to abate or reduce any
Additional Rent.
Section 10.3 Limitation on Landlord's and Tenant's Obligation. Landlord and
Tenant shall not be obligated to do any repair or restoration work if Landlord or Tenant
elects to terminate this Lease as provided for in this ARTICLE X.
Section 10.4 Landlord's Right to Terminate. Notwithstanding the foregoing, the
Landlord may terminate this Lease following: (i) damage or destruction to the Outlet
Building or to the Shopping Center (whether or not the Premises have suffered any
damage or destruction) if the Outlet Building or the Shopping Center shall be damaged
to the extent of thirty percent (30%) or more of the cost of replacement thereof; or (ii)
damage or destruction to the Premises to the extent of thirty percent (30%) or more or
the replacement cost thereof. Landlord may exercise the right to so terminate this
Lease by written notice to Tenant given within sixty (60) days of the date of the dam-
age, or sixty (60) days from the date Landlord receives written notice of such damage,
whichever is later. Such notice of termination shall be effective on the date thereof.
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Section 10.5 Tenant's Right to Terminate. If the Premises or the Outlet Building
are damaged by fire or other casualty and the Landlord does not substantially repair or
restore the same to their former condition [but only as to portions constructed by Land-
lord] within 180 days following Tenant's notice thereof to Landlord, Tenant may
thereafter terminate this Lease upon thirty (30) days prior written notice to Landlord
unless such repair or restoration is completed within such thirty-day period.
ARTICLE XI
Section 11.1 Tenant's Default. Subject to applicable provisions of law and the
provisions of Section 12.6 hereof, this Lease is upon the condition that: (a)(i) if Tenant
shall neglect or fail to pay when due any installment of rent, Fixed Minimum Rent,
Percentage Rent or other Additional Rent, or any other charges payable by Tenant,
and such neglect or failure shall continue for five (5) days after the due date thereof, or
(a)(ii) if there is a default or Event of Default under the terms of a $20,000 Note of even
date by Cape Cod Community College Division of Continuing Education ("College"); or
(b) if Tenant shall neglect or fail to perform or observe any of the other covenants or
undertakings herein on its part to be performed or observed and such neglect or failure
shall continue for ten (10) days after notice to it from Landlord; or (c) if the default is
other than a default under clause (a) above, or clauses (d) through 0) below, and is
such that it cannot be cured within ten (10) days, but is capable of being cured, and
Tenant does not within a thirty (30) day period commence to cure such default, con-
tinue to do so diligently, and thereafter complete such cure within not more than sixty
(60) days following notice of default; or (d) if proceedings for reorganization or
arrangement under the bankruptcy laws of the United States, or any laws amendatory
thereof or supplemental thereto, shall be filed by Tenant, or any guarantor of Tenant's
obligations ("Guarantor"); or (e) if any other proceedings are instituted by the Tenant or
any Guarantor under the Bankruptcy Act, or any laws amendatory thereof or supple-
mental thereto; or (f) if any other proceedings shall be instituted against the Tenant or
any Guarantor under the Bankruptcy Act or any Insolvency Law and not be dismissed
within sixty (60) days, or Tenant or Guarantor shall be unable to pay its or his financial
obligations when they become due, or if there is a material adverse change from the
date of this Lease in the financial condition of either Tenant or Guarantor as reflected
in financial statements delivered to Landlord; or (g) if the Tenant or any Guarantor shall
execute an assignment of its property for the benefit of its creditors, or if, at any time
the Guarantor would be financially unable to honor the obligations of the Guaranty in
the event a default were to exist at such time; or (h) if a receiver or other similar officer
for Tenant or any Guarantor shall be appointed and not be discharged within sixty (60)
days; or (i) if the estate hereby credited shall be taken by execution or by other process
of law and is not redeemed by Tenant within thirty (30) days thereafter; or 0) in the
event of Landlord's election to terminate under Section 4.5 or 7.13; then, except in the
case of a default under clauses (d) or (e) above in which event this Lease (to the fullest
extent now or hereafter permitted by law) shall terminate automatically, Landlord may,
immediately or at any time thereafter (notwithstanding any license or waiver of any
former breach or waiver of the benefit hereof, or consent in a former instance), and
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without demand or notice, in person or by agent or attorney, enter the Premises or any
part thereof and repossess the same as of its former estate, or terminate this Lease by
written notice to Tenant, and in either event expel Tenant and those claiming through
or under it and remove their effects (forcibly, if necessary) without being deemed guilty
of any manner of trespass and without prejudice to any remedy which might otherwise
be used for arrears of rent or breach of covenant, and upon entry or written notice of
termination, or automatic termination, both as aforesaid, this Lease shall terminate and
the Landlord, in addition to ail other remedies which it may have at law, and not in
limitation thereof, shall have the remedies provided in ARTICLE XI hereof.
Section 11.2 Landlord's Remedies. If this Lease shall be terminated as
provided in Section 11.1 hereof, Tenant shall forthwith pay to Landlord as damages, in
addition to all sums which were due prior to the date of such termination, a sum equal
to the amount by which the rent for the remainder of the term hereof and of any exer-
cised extension thereof exceeds the fair rental value of the Premises for the remainder
of the term and of any exercised extensions of this Lease, and in addition thereto will
further indemnify Landlord during the remainder of said term and of any exercised
extension thereof against all loss and damage suffered by reason of such termination,
however caused, first deducting any damages paid as provided above, the loss and
damage, if any, for each month during the remainder of the term and of any extension
thereof to be paid at the beginning of each month. For the purposes of computing
damages payable pursuant to this Section 11.2, it is agreed that there shall be payable
to Landlord as part of such damages at the time of such termination the product of the
Additional Rent due with respect to Outlet Center Taxes, Outlet Center Operation Costs
Outlet Building Operating Costs, Promotional Fund and Percentage Rent, if any, for the
most recently ended fiscal, calendar or lease year, as the case may be, times the
number of years remaining of the term hereof, it being assumed that the amount of
such Additional Rent payments so payable for the most recently ended fiscal, calendar j
year or lease year would have remained constant for each subsequent year of the full
term hereby granted and any exercised extension hereof. Tenant also agrees (i) to
indemnify and save Landlord harmless from and against all expenses which Landlord
may incur, including, without limitation, legal expenses, attorneys' fees, brokerage fees,
and the cost of putting the Premises in good order or preparing the same for rental; and
(ii) that Landlord may re-let the Premises or any part or parts thereof, either in the
name of Landlord or otherwise for a term or terms which may, at Landlord's option, be
less than or exceed the period which would otherwise have constituted the balance of
the term and of any extension thereof and may grant concessions or free rent. The
good faith failure or refusal of Landlord to re-let the Premises or any part or parts
thereof shall not release or affect Tenant's liability for damage so long as Landlord
does not act arbitrarily or capriciously. Any suit brought to collect the amount of defi-
ciency for any month or other period shall not prejudice in any way the right of Landlord
to collect the deficiency for any subsequent month or period by a similar proceeding.
Landlord at Landlord's option may make such alterations, repairs, replacements and
decorations on the Premises as Landlord in Landlord's sole judgment considers advis-
able and necessary for the purpose of re-letting the Premises, and the making of such
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alterations or decorations shall not operate or be construed to release Tenant from
liability hereunder. Landlord shall in no event be liable in any way for the good faith
failure to re-let the Premises, or, if the Premises are re-let, for the good faith failure to
collect the rents due under such re-letting, provided always that Landlord does not act
arbitrarily or capriciously.
Section 11.3 Reimbursement of Landlord. In the event of any default by Tenant
in the payment of any Rent, or Additional Rent, Tenant will, in addition, reimburse
Landlord for all reasonable expenses incurred by Landlord in collecting such rent or in
obtaining possession of, or in re-letting the Premises, or in defending any action,
including expenses for reasonable counsel fees and reasonable commissions. Tenant
further agrees that, if on termination of this Lease by expiration or otherwise, Tenant
shall fail to remove any of its property from the Premises as provided for herein, Land-
lord shall be authorized, in its sole option, and in Tenant's name and on its behalf,
either (i) to cause such property to be removed and placed in storage for the account
and at the expense of Tenant; or (ii) to sell such property at public or private sale, with
or without notice, and to apply the proceeds thereof, after the payment of all expenses
of removal, storage and sale, to the indebtedness, if any, of Tenant to Landlord, the
surplus, if any, to be paid to Tenant; prior to the removal of such property the Landlord
may charge the Tenant a fair rental amount for the storage of such property. All sums
payable by Tenant under this ARTICLE XI shall be deemed Additional Rent.
Section 11.4 Landlord's Right to Perform Tenant's Covenants. Tenant
covenants and agrees that, if it shall at any time fail to make any payment or perform
any other act on its part to be made or performed as in this Lease provided, Landlord,
in its sole discretion may after due notice to, or demand upon, Tenant, make any pay-
ment or perform any other act on the part of the Tenant to be made and performed as
in this Lease provided, in such manner and to such extent as Landlord may reasonably
deem desirable, and in exercising any such rights, Landlord may pay necessary and
incidental costs and expenses, employ counsel, and incur and pay reasonable attor-
neys' fees. The making of any such payment or the performing of any other act by the
Landlord pursuant to this Article shall not waive, or release the Tenant from, any obli-
gations of the Tenant in this Lease contained. All sums so paid by Landlord and all
reasonably necessary and incidental costs and expenses in connection with the per-
formance of any such act by Landlord shall, except as otherwise in this Lease
expressly provided, be payable to Landlord on demand, and Tenant covenants to pay
any such sum or sums promptly, and Landlord shall have (in addition to any other right
or remedy of Landlord) the same rights and remedies in the event of the nonpayment
thereof by Tenant as in the case of default by Tenant in the payment of the Fixed
Minimum Rent. Whenever practicable, Landlord, before proceeding as provided in this
Section 11.4, shall give Tenant notice in writing of the failure of Tenant which Landlord
proposes to remedy, and shall allow Tenant such length of time as may be reasonable
in the circumstances, consistent with any grace periods contained herein, but not
exceeding thirty (30) days from the giving of notice, to remedy the failure itself and, if
Tenant shall not remedy the failure in the time so allowed, Landlord shall be deemed to
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have given "due notice" and may proceed as provided in this Section 11.4; provided,
however, that nothing in this Section shall prevent Landlord from acting without notice
to Tenant in case of any emergency wherein there is danger to property or person, in
which event no notice shall be required.
Section 11.5 Cumulative Remedies. The specified remedies to which Landlord
may resort under the terms of this Lease, or under the provisions of applicable law, are
cumulative and not intended to be exclusive of any other remedies or means of redress
to which Landlord may be lawfully entitled in case of any breach or threatened breach
by Tenant of any provisions of this Lease. The failure of Landlord to insist in any one
or more cases upon the strict performance of any of the covenants of this Lease or to
exercise any option contained herein shall not be construed as a waiver or a relin-
quishment for the future of such covenant or option. Receipt by Landlord of any rent
payment with knowledge of the breach of any covenants hereof shall not be deemed a
waiver of such breach. No waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless expressed in writing and signed by it. In addition to
the other remedies provided in this Lease, Landlord shall be entitled to restraint by
injunction of any violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease.
Section 11.6 Expenses of Enforcement. Tenant agrees to pay all reasonable
expenses and reasonable attorneys' fees incurred by Landlord in enforcing any obliga-
tion or any remedies hereunder including collection of Rent, Additional Rent, recovery
by Landlord of the Premises, or in any litigation in which Landlord shall become
involved by reason of any act or negligence of the Tenant.
Section 11.7 Landlord's Default. Landlord shall not be deemed to be in default
hereunder unless such default shall remain uncured for more than thirty (30) days fol-
lowing written notice from Tenant specifying the nature of such default, or such longer
period as may be reasonably required to correct such default. Landlord's liability to
keep, maintain, and repair shall always be limited to the cost of making such repair or
accomplishing such maintenance or repair. In no event whatsoever shall Landlord be
liable for consequential or any indirect damages. Notwithstanding anything to the con-
trary contained herein, so long -as Tenant shall be in default under any term or provi-
sion of this Lease, Tenant shall not be entitled to enforce any obligation from Landlord
or seek any cure of Landlord's defaults under this Lease. The provisions of this
Section 11.7 are further subject to the provisions of ARTICLES IX and X dealing with
eminent domain and fire and other casualty.
Section 11.8 Limitation of Landlord's Liabili . The obligations of the Landlord
hereunder shall be binding upon Landlord and each succeeding owner of the
Landlord's interest hereunder only during the period of such ownership and Landlord
and each succeeding owner shall have no liability whatsoever except for its obligations
during each such respective period. Tenant hereby agrees for itself and each succeed-
ing holder of the Tenant's interest, or any portion thereof, hereunder, that any judg-
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ment, decree or award obtained against the Landlord or any succeeding owner of the
Landlord's interest, which is in any manner related to this Lease, the Premises or the
Tenant's use and occupancy of the Premises or the common areas of the Shopping
Center, whether at law or in equity, shall be satisfied out of the Landlord's equity in the
land and buildings then comprising the Shopping Center owned by the Landlord to the
extent then owned by the Landlord and such succeeding owner, and further agrees to
look only to such assets and to no other assets of the Landlord, or such succeeding
owner, for satisfaction. Neither Landlord nor any party executing this Lease on behalf
of Landlord, nor any trustee or beneficiary of the D&C Trust, nor any partner, limited or
general, of Bassett Investors Limited Partnership, nor any subsequent Landlord shall
have any personal liability hereunder. The remedies provided to Tenant in this Lease
are exclusive, and Landlord will not be liable under any theory of recovery, whether
based on contract, tort or otherwise.
Section 11.9 Security Deposit. Not Applicable.
ARTICLE XII
Miscellaneous Provisions
Section 12.1 Broker. Tenant represents that it has not dealt with any person in
connection with the Premises or the negotiation or execution of this Lease other than
officers or employees of Landlord and the Broker, if any, designated in Item 10. of the
summary of Basic Terms. Tenant shall indemnify and save harmless the Landlord from
and against all claims, liabilities, costs and expenses incurred as a result of any breach
of the foregoing representation by Tenant.
Section 12.2 Quiet Enjoyment. Tenant shall, upon paying the rent reserved
hereunder and observing and performing all of the terms, covenants and conditions on
Tenant's part to be observed and performed, peaceably and quietly have and hold the
Premises without hindrance or molestation by any person or persons lawfully claiming
by, through or under, Landlord, subject, however, to the terms of this Lease.
Section 12.3 Notices. All notices shall be in writing and be given by delivery in
hand or by certified mail, return receipt requested, and all notices for the Landlord shall
be addressed to the Landlord, 25 New Chardon Street, Boston, Massachusetts 02114,
Attention: Mr. S. Lawrence Schlager, with a copy by regular mail to Eric R. Allon, Esq.,
Bernkopf, Goodman & Baseman, 125 Summer Street, Boston, Massachusetts 02110,
or to such other place as may be designated by written notice to the Tenant; and to the
Tenant at its address specified in Item 12. of the Summary of Basic Terms or to such
other place as may be designated by written notice to the Landlord.
Section 12.4 Waiver of Subrogation. Landlord and Tenant hereby release each
other, to the extent of their respective insurance coverages, from any and all liability for
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any loss or damage caused by fire, any of the extended coverage casualties, or other
casualties insured against, even if such fire or other casualty shall be brought about by
the fault or negligence of the party benefited by the release or its agents, provided,
however, this release shall be in force and effect only with respect to loss or damage
occurring during such time as the policies of fire, extended coverage and other
insurance, maintained by the releasing party shall contain a clause, or be subject to a
statutory provision to the effect that such release shall not affect said policies or the
right of the releasing party to recover thereunder. Landlord and Tenant each agree
that their respective fire, extended coverage, and other insurance policies will include
such a clause so long as the same is obtainable and includible without extra cost, or if
extra cost is chargeable therefor, so long as the party benefited by such clause pays
such extra cost. If cost is chargeable therefor, the party maintaining such insurance will
so advise the other party and the amount thereof. The other party, at its election, may
pay the same, but shall not be obligated to do so. To the extent that Tenant is a
self-insurer with respect to personal property, the last sentence of Section 7.7 hereof
shall be applicable.
Section 12.5 Entire Agreement: Execution Headnotes and Author. This
Lease, together with all Exhibits referred to herein and the Summary of Basic Terms,
sets forth the entire agreement between the parties hereto and cannot be modified or
amended, except in a writing duly executed by the respective parties. This Lease is
executed as a sealed instrument and in multiple counterparts, all copies of which are
identical, and any one of which is to be deemed to be complete in itself and may be
introduced in evidence or used for any purpose without the production of any other
copy. The headnotes throughout this Lease are for convenience of reference only, and
shall in no way be held or deemed to define, limit, explain, describe, modify or add to
the interpretation, construction or meaning of any provision of this Lease. Tenant rep-
resents and warrants to Landlord that the party executing this Lease on behalf of
Tenant is duly authorized to execute and deliver this Lease to Landlord, that the Lease
is the binding obligation of Tenant, duly enforceable in accordance with its terms, and
that the necessary votes, consents, authorizations and other approvals have been
secured and are in full force and effect regarding the execution and enforceability of
this Lease against Tenant.
Section 12.6 Partial Invaliditv. The invalidity of one or more phrases,
sentences, clauses, Sections or Articles contained in this Lease shall not'affect the
remaining portions of this Lease or any part thereof, and if any one or more of the
phrases, clauses, sentences, Sections or Articles contained in this Lease should be
declared invalid by the final order, decree or judgment of a court of competent jurisdic-
tion, including all appeals therefrom, this Lease shall be construed as if such invalid
phrases, clauses, sentences, sections or articles had not been inserted in this Lease.
Section 12.7 No Waiver. No assent, express or implied, by the Landlord to any
breach of any agreement or condition herein contained on the part of the Tenant to be
performed or observed, and no waiver, express or implied, of any such agreement or
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condition shall be deemed to be a waiver of or an assent to any succeeding breach of
the same or any other agreement or condition; the acceptance by the Landlord of rent
or other payment hereunder, or silence by the Landlord as to any breach, shall not be
construed as waiving any of the Landlord's rights hereunder unless such waiver shall
be in writing. No payment by the Tenant or acceptance by the Landlord of a lesser
amount than shall be due the Landlord from the Tenant shall be deemed to be anything
but payment on account, and the acceptance by the Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon a letter accompanying said
check, that said lesser amount is payment in full shall not be deemed an accord and
satisfaction, and the Landlord may accept said check without prejudice to recover the
balance due or pursue any other remedy.
Section 12.8 Holdover. If the Tenant remains in the Premises beyond the
expiration of this Lease at the end of the Term, or sooner following an early termination
as provided for herein, such holding over shall not be deemed to create any tenancy,
but the Tenant shall be a Tenant at Sufferance only subject to all of the Tenant obliga-
tions set forth herein, but at a daily rate equal to two times the Fixed Minimum Rent and
Additional Rent and other charges provided for under this Lease. The acceptance of a
purported rent check following termination shall not constitute the creation of a tenancy
at will, it being agreed that Tenant's status shall remain that of a Tenant at Sufferance,
at the aforesaid daily rate. Tenant shall also pay to Landlord all damages, direct and/or
indirect, sustained by reason of any such holding over. Otherwise, such holding over
shall be on the terms and conditions set forth in this Lease as far as applicable. Land-
lord may, but shall not be required to, and only on written notice to Tenant after the
expiration of the Term hereof, elect to treat such holding over as a renewal of one (1)
year, to be on the terms and conditions set forth in this Paragraph 12.8.
Section 12.9 Summary of Basic Terms. The Summary of Basic Terms which is
affixed to this Lease sets forth certain basic terms and information which is thereafter
referred to in the main text of this Lease. Every reference to the Summary of Basic
Terms, or to a particular item thereon, shall have the effect of incorporating the
Summary, or the particular item thereof, into the main text of the Lease.
Section 12.10 Grand Opening and Promotional Fund. Intentionally Deleted.
Section 12.11 When Lease Becomes Binding. The submission of this
document for examination and negotiation does not constitute an offer to lease or a
reservation or an option for the Premises, and this document shall become effective
and binding only upon the execution and delivery hereof by both the Landlord and the
Tenant. All negotiations, considerations, representations and understandings between
the Landlord and the Tenant are incorporated herein and may be modified or altered
only by agreement in writing between the Landlord and Tenant,.and no act or omission
of any employee or agent of the Landlord shall alter, change or modify any of the pro-
visions hereof.
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Section 12.12 "AS IS" Condition. The Tenant shall accept the Premises in "AS
IS" Condition, including the condition and adequacy of the heating, air conditioning,
electrical and plumbing equipment and related systems.
Section 12.13 No Recordation. Tenant shall not record,this Lease with any
registry of deeds, and any recordation of this Lease or any memorandum, short form or
notice of this Lease will be void and a default under this Lease.
Section 12.14 Tenant's Request for Landlord's Action. In the event that at
Tenant's request Landlord takes any action pursuant to this Lease, with the exception
of Landlord's work under Section 6.1, Tenant agrees to pay as Additional Rent all
Landlord's legal fees, expenses and disbursements in connection with such action, with
payment to be delivered to Landlord immediately upon billing.
Section 12.15 Additional Provisions.
A. Late Charae. If Tenant shall fail to pay Fixed Minimum Rent, Additional
Rent or other charges after the same become due and payable under this Lease, such
unpaid amounts shall bear interest from the due date thereof to the date of payment at
the rate of eighteen percent (18%) per annum ("Interest Payment"). In addition, if
Tenant shall fail to pay any Fixed Minimum Rent, Additional Rent or other charges after
the same become due and payable, then Tenant also shall pay to Landlord a late pay-
ment administrative expense charge ("Administrative Expense") of Seventy-Five Dollars
($75.00) for each calendar month or part thereof after the due date of such payment
until such payment is received by Landlord. The provisions herein for Interest Payment
and Administrative Expense shall not be construed to relieve Tenant of the obligation to
pay Fixed Minimum Rent, Additional Rent and all other charges when due and shall be
in addition to and not in limitation of Landlord's other remedies as provided for in this
Lease.
Section 12.16 No Guaranty. There is no guaranty executed in connection with
this Lease. The individuals signing this Lease on behalf of Tenant and Landlord do so
only to bind the applicable entity.
TENANT:
CAPE COD COMMUNITY COLLEGE
EDUCATIONAL FOUNDATION, INC.
By: CQ G C�GG u�
Donald Earnshaw, Chairman
Duly Authorized
[SIGNATURES CONTINUED ON NEXT PAGE.]
- 25 -
a
................__..
LANDLORD:
BASSETT LIMITED PARTNERSHIP,
a Massachusetts limited partnership
acting by and through Wilston Corp. ,
its sole General Partner
By:
S. Lawrence Schlager
Its President
D&C TRUST
By:
C. G rd Drucker, Trustee as
afores id and not individually
-26-
CLERK'S CERTIFICATE
The undersigned hereby certifies that he/she is the Clerk of Cape Cod
Community College Educational Foundation, Inc., a Massachusetts nonprofit corpora-
tion and that the execution and delivery of the foregoing lease by Donald Earnshaw,
the Chairman of the Corporation, has been duly authorized by a vote of the directors
and shareholders of the Corporation which is in full force and effect as of this day and
that Donald Earnshaw has in fact signed the foregoing lease.
Seal ATTEST:
tLtiuc i)ir��llz-, sW
Date: -3 , 1993
3582314
6233: 04/29/93 12:01 PM
- 27 -
0 .
ti
EXHIBIT A
?'an Outlet Center.
'•et a ana Rrerrisec
r
�S.LJC�i,i<
(� head smw
32 Pad dim Am=
FB Dmw AL
® atrailat
H6 HS "Sb �
\4,4W sF'� �� 1
` n CllRls
? Fit ( -}J/C(1DJ�{. � CL
F �
410W1�d111 C 'a 1
KZ
C3 Fir EmLnf.
Hi ,,I�1u ` C6 Swim scut
iN 4.a. :oanc.r■�. I
,►t rtP0 r
-
.. ....... ....... ......_. .
EXHIBIT B
Landlord's Work
None.
EXHIBIT C
Tenant's Work
I
At Tenant's sole cost and expense, Tenant shall do the following:
(1) Tenant will be required to obtain any and all permits necessary to
complete its work, including without limitation and as applicable, building and electrical
permits associated with its work to be performed hereunder. Copies of all permits will
be submitted to Landlord, together with Certificates of Insurance for Tenant's contrac-
tors. At the completion of Tenant's Work, Tenant will obtain a Certificate of Occupancy
and provide a copy of same to Landlord prior to opening for business. Prior to the
commencement of Tenant's Work (including any and all work contemplated by this
Exhibit C and/or the attached Exhibit C-1), Tenant shall (i) provide Landlord with all
insurance as required by this Lease and insurance for Tenant's Work and the general
contractor performing Tenant's Work, in form and substance acceptable to Landlord,
(ii) deliver for approval three copies of final plans and specifications and related
construction materials (collectively, "Final Plans and Specifications") to Landlord's
construction consultant, Michael. C. Lesburg, AIA, 14 South Russell Street, Boston,
Massachusetts 02114, and one copy of the same to Landlord, and (iii) secure
Landlord's approval for such Final Plans and Specifications. If Tenant has not received
notice from Landlord or Landlord's construction consultant within ten (10) days of
submission of the Final Plans and Specifications, the same shall be deemed approved.
If Landlord or Landlord's construction consultant objects to the same in writing within
such 10 days, Tenant shall make the requested revisions and resubmit revised Final
Plans and Specifications for approval as provided herein. If Tenant's Work for any
reason shall require Landlord to perform work in any part of or related to the Shopping
Center, Tenant shall pay all such costs and expenses, which costs and expenses shall
be paid promptly upon billing from Landlord to Tenant.
(2) Tenant shall install furnishings and trade fixtures as required by
programs being offered at the Premises pursuant to the permitted uses under this
Lease. Subject to prior approval by Landlord pursuant to plans and specifications
provided to Landlord as required above, Tenant may install telephones, computer lines
and additional electric circuits, which shall not interfere with presently existing uses at
the Shopping Center.
(3) Tenant agrees to make the improvements substantially in
accordance with the preliminary plans and specifications set forth in the attached
Exhibit C-1 and to make the Premises accessible for the handicapped pursuant to
requirements of M.G.L. Chapter 22, Section 13A, and the Americans with Disabilities
Act.
0
E,{?._ul., -0 LEASE
S_C�1 C:ITERIA AND PROCEDURES
1 E C:t tar-ant shall to allowed rot 'cre than tea (7) signs.
2. Total cf sign area in ac=rezate shall net e cce�d dimensions as stnwn
on Drawir.Q Kl fcr•tie res_ ctZ.-e t-nant space.
3. Tenant slcn Munted below donee_v soffit :rust be 9" high and 4'0" long,
double_fa ced, secure at ._-offlt mn-ij j. Id=tir=
internally, conS�-►icte3
of non-deterieratj= irate =n
rials, dispiayirlg re of tenant space vs. item sold.
4. 1- . tenant sign nrn ted cn ve.*tical metal canopy cover shall
contain individual- Ietters, be internally i1.ju7*ated, shall be of
color at red errs of color sped.tan, shall have individual. letters
secured to the cane=., cover, shall be m=mted within the area designates
on the Drawing ys, �l display the name of the tenant space vs.
item sold.
5. No internally illumiz=ted sig
or aniratew type. n shall be flashing .type, revolving type
6. All fastenings shall !D-- concealed where possible.
7. A?1 eiea`kcal dwics, wiring and the like s:'�al l be contained within
the horizontal elect=c31 �c��, }�� sign lettering.
8. Race�ray s�a71 znt e�_.. d beyond Tmst Mctrmne lettering. .
9. RaceIray wiring shall inter_'ace with junction box and wiring furnished .and installed at proposed general location of tenant sicnace.
10. P.avide all required blocking, cleating, bolsters an3 the like to supeott
the proposed sign.
11. Provide all rem,;re scaffol
12. Provide a scaled and = fo ding, staging and the like to install the signs.
the drawing si
sigrage, proposed s�stural s nes czz�posei tenant
*mports, =Putatizns, certification and
regi Strat=n of a s..= . tural engineer licensed in EtA attesti*ig to the
design of the sign support.
13. Provide color chips of actual color(s) prc=sed.
14. Each sign shall be pzrrrided with a timeclocK at the
tenant, operable within e...ch a te.*�ant s ea�ense of the
pace.
15. Each t=rant shall be resporsible fc yr a=l it,.c to ttm Town of Barnstable
for zc � sign apz�vQl and obtaining such aapzQval.
16. All signage shall also require the prior written apo
of the landlord, which consent s;-�ail not unr = roval and consent
so long as the above it- are called 'unreaso�ly be withheld,
MIBIT E
PROMISSORY NOTE
$20,000.00 Boston, Massachusetts
Funding Date: May 1, 1993 Date of this Note: As of April 22, 1993
FOR VALUE RECEIVED and pursuant to the terms of this Promissory
Note ("Note"), the undersigned, CAPE COD COMMUNITY COLLEGE DIVISION OF
CONTINUING EDUCATION, a political subdivision of the Commonwealth of
Massachusetts ("Maker") promises to pay to the order of BASSETT LIMITED
PARTNERSHIP, a Massachusetts limited partnership, acting by and through Wilston
Corp., a Massachusetts corporation, its sole general partner, and C. GERARD
DRUCKER, as he is Trustee of the D&C TRUST under written Declaration of Trust
dated November 28, 1983, filed with the Barnstable County Registry District of the
Land Court as Document No. 326659, and not individually (collectively, "Lender")
(Lender and all subsequent holders of this Note are sometimes hereinafter referred to
as "Holder"), at 25 New Chardon Street, Penthouse Suite Two, Boston, Massachusetts
02114, or at such other place as Holder hereof may designate in writing, the principal
sum of TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) (the "Loan"),
together with interest from the Funding Date on the unpaid principal balance of the
Loan from time to time outstanding, at the rate or rates hereinafter set forth.
1. Interest Rate. On and after the Funding Date (until maturity or an
Event of Default as hereinafter defined), interest ("Interest Rate") shall accrue and be
due monthly in advance at the rate of twelve percent (12%) per annum .
2. Payments. Payments of the amounts due under this Note shall be
made in good funds with checks made payable to Hyannis Factory Outlet Center (or
such other entity or trade style as Holder may designate from time to time in writing, at
the address set forth in the first paragraph of this Note, in consecutive monthly install-
ments as follows:
(a) Monthly Payments. Principal and interest at the Interest Rate shall
be payable in monthly installments of One Thousand Seven
Hundred Seventy-Six and 98/100 ($1,776.98) Dollars on the basis
of a one-year direct reduction amortization schedule, commencing
on the 1 st day of May, 1993, and continuing on the 1 st day of each
month thereafter.
(b) Repayment on Maturity. April 1, 1994 (the "Maturity Date"), or on
such earlier date as this Note becomes due and payable, whether
by acceleration or otherwise, the entire outstanding principal
balance hereof, together with accrued but unpaid interest thereon,
and all other sums owing to Holder hereunder shall be due and
payable in full.
_r
3. Application of Payment. All principal, interest and any other
amounts due under this Note shall be payable in lawful money of the United States of
America at the place or places stated in the first paragraph of this Note unless Maker is
otherwise notified by Holder. All payments received by Holder shall be applied by
Holder in such manner and in such order as Holder may determine in Holder's sole and
absolute discretion to payments due hereunder, whether to payments of interest,
principal, costs of collection or otherwise.
4. Advances. The undersigned acknowledge that principal under this
Note shall be advanced solely as payment toward the cost of Tenant's Work, as
defined in the Lease, as hereinafter defined. Accordingly, Maker directs Lender to pay
any amount advanced hereunder directly to the general contractor of Maker only after
Landlord has received, in form and substance satisfactory to Landlord, (1) a requisition
for payment from the general contractor of Tenant's Work, (2) lien waivers evidencing
that upon payment of the amount requested, there will be no outstanding payments due
through the date of the payment for Tenant's Work, and (3) an architect's certificate
from Maker's architect supervising Tenant's Work that all Tenant's Work covered by the
requisition has been completed pursuant to the requirements of the Lease.
5. Late Payment Charges. In the event that any monthly payment is
not received by Lender at the address set forth in the first paragraph of this Note (or at
such other place as is designated pursuant to the terms hereof) within five (5) days of
the date that such payment is due and payable, in addition to any other permitted
charges hereunder, a late payment fee ("Late Charges") shall be due and owing to
Holder in the amount of five percent (5%) of the amount past due plus an additional five
percent (5%) for each and every subsequent calendar month or portion thereof that
such payment remains outstanding; however, if applicable law requires a lesser
charge, a late payment fee shall be due Holder for the maximum charge allowed by
such law. Holder shall have no obligation to accept any payments hereunder not
accompanied by all outstanding Late Charges. Notwithstanding anything contained
herein, this paragraph is not intended to, and shall not, create any grace period or
indulgence by Holder with respect to the punctual payment by Maker of all sums owed
Holder, nor shall this paragraph in any way hinder, prevent or delay Holder from
exercising any remedy which it may have hereunder, or at law or in equity, with respect
to Maker's failure timely to make any payment when due. Maker acknowledges that the
Late Charges are not imposed as a charge for the use of money, but rather are
imposed to permit Holder to recoup its administrative charges and other costs in
dealing with the delinquent payment, and Late Charges shall in no way be deemed an
interest charge.
6. Events of Default and Interest Upon Default. In the event that (i)
any payment of principal or interest, or any other charge or payment due hereunder is
not paid within five (5) days of the date that such payment is due and payable, and/or
(ii) there is a termination for any reason of the Lease, as hereinafter defined, or a
- 2 -
default occurs pursuant to Section 11.1 of a certain lease dated of even date ("Lease")
by and between Lender as Landlord and Cape Cod Community College Foundation,
Inc. ("Foundation") as Tenant for premises ("Premises") known as No. H-7, located in
the Outlet Building in the Hyannis Factory Outlet Center in Hyannis, Massachusetts, as
depicted on Exhibit A to the Lease (which Lease has been assigned to Maker and
Maker has agreed to pay all charges and amounts due and to perform all obligations
under the Lease pursuant to an Assignment of Lease by and among Maker, Foundation
and Lender), or there occurs a default in or under any other document or instrument
evidencing, securing, or otherwise relating to the indebtedness evidenced hereby,
which default is not cured within the applicable notice and/or grace period, if any,
expressly provided therefor, such failure shall constitute a default hereunder ("Event of
Default" or "default"). From and after an Event of Default, the principal and any
accrued interest not paid when due, whether at the Maturity Date or resulting from
acceleration and any other amounts advanced by Holder pursuant to this Note, but
excluding Late Charges, shall bear interest until paid at the maximum rate allowable
under law or, if no such maximum rate is established, eighteen percent (18%) per
annum (the "Default Rate").
7. Acceleration. Upon the occurrence of an Event of Default, Holder
may at its option, in addition to any other remedies to which it may be entitled, declare
the total unpaid principal balance of the indebtedness evidenced hereby, together with' ,
all accrued but unpaid interest thereon, any applicable prepayment premium and all
other sums owing under this Note, immediately due and payable and all such amounts
shall thereafter bear interest at the Default Rate; provided, however, the Default Rate
shall not accrue on any Late Charges. All such interest shall be paid at the time of and
as a condition precedent to the curing of any Event of Default should Holder, in its sole
and absolute discretion, allow such Event of Default to be cured. Time is of the
essence in this Note.
8. Prepayment. This Note may be prepaid at any time, in whole or in
part, upon thirty (30) days prior written notice to Holder and upon payment of (i) such
outstanding principal amount, (ii) all accrued and unpaid interest, and (iii) all other
amounts due hereunder.
9. Limit of Validity. All agreements between the Maker and Holder
hereof are expressly limited so that in no contingency or event whatsoever, whether by
reason of advancement of the proceeds hereof, acceleration of maturity of the unpaid
principal balance hereof, or otherwise, shall the amount paid or agreed to be paid to
Holder hereof for the use, forbearance or detention of the money to be advanced here-
under exceed the highest lawful rate permissible under applicable usury laws. If, from
any circumstances whatsoever fulfillment of any provision hereof shall involve
transcending the limit of validity prescribed by any law which a court of competent
jurisdiction may deem applicable hereto, then, ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity, and, if from any circumstance Holder
hereof shall ever receive as interest an amount which would exceed the highest lawful
- 3 -
l
rate, such amount which would be excessive interest shall be applied to the reduction
of the unpaid principal balance due hereunder and not to the payment of interest. This
provision shall control every other provision of all agreements between the Maker and
Holder hereof.
10. Participations. Lender reserves the right, from time to time during
the term of the Loan, to (A) enter into participation agreements with respect to the Loan
or (B) assign, directly or as collateral, all or any portion of the obligations evidenced or
secured by this Note and any or all of the Lender's rights therein; and Maker and any
endorser, surety or guarantor of this Note shall each cooperate with Lender in
connection with the execution of any documents requested by Lender in connection
with such participation agreements or the transfer of any such assignments.
11. Waiver Of Subrogation. If more than one Maker becomes liable on
this Note, each Maker hereby unconditionally and irrevocably waives any "claim" (as
defined in the United States Bankruptcy Code, Title 11 of the United States Code)
he/she/it has or hereafter acquires against any other Maker and further agrees that
he/she/it will not at any time assert or exercise against any other Maker, and does
hereby waive and release, any right of or claim to subrogation, reimbursement,
indemnity, contribution or payment (including any right to proceed upon any collateral)
for or with respect to any amounts which such Maker may pay or be obligated to pay to
Lender hereunder, or in any other connection to the Loan.
12. Authorily. Maker represents, warrants and covenants to Lender
that each parry executing this Note on behalf of Maker has full authority and power to
bind Maker to the terms of this Note and has been duly authorized and directed by
Maker to execute and deliver this Note to Lender, and that all votes, consents, and
other approvals have been secured to bind Maker to the obligations contained in this
Note.
13. Miscellaneous.
(a) If interest, principal or other sum owing under this Note is not paid
when due, whether at maturity or by acceleration, Maker promises to pay all costs of
collection, including but not limited to, attorneys' fees and all expenses incurred by
Holder hereof in connection with the protection or realization of the collateral and
enforcement of any guaranty on account of such collection, whether or not suit is filed
hereon. Such fees shall include, without limitation, costs and attorneys' fees incurred
in any appeal.
(b) Maker and any endorsers hereof and all others who may become
liable for all or any part of this obligation, severally waive presentment for payment,
demand and protest and notice of protest, acceleration in or dishonor and non-payment
of this Note, and expressly consent to any extension of time of payment hereof or of
any installment hereof, to the release of any party liable for this obligation, to the
- 4 -
release, change or modification of any collateral posted as security for the payment of
this Note, and any such extension, modification or release may be made without notice
to any of said parties and without in any way affecting or discharging this liability.
(c) No single or partial exercise of any power hereunder shall preclude
other or further exercise thereof or the exercise of any other power. Holder hereof shall
at all times have the right to proceed against any portions of security held therefore in
such order and in such manner as Holder may deem fit, without waiving any rights with
respect to any other security. No delay or omission on the part of Holder hereof in
exercising any right or remedy hereunder or the acceptance of one or more install-
ments from any person after an Event of Default hereunder shall operate as a waiver of
such right or remedy or of any other right or remedy under this Note nor as a waiver of
such right or remedy in connection with any future default.
(d) If more than one person has executed this Note or becomes obli-
gated under this Note, the obligations and covenants of each such person shall be joint
and several. The release by Holder of any party liable on this Note shall not operate to
release any other party liable hereon.
(e) In the event any one or more of the provisions contained in this
Note shalt,for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provision of this
Note, but this Note shall be construed as if such invalid, illegal or unenforceable provi-
sion had never been contained herein; provided, however, Maker agrees to cooperate
with Holder to negotiate in good faith to replace any provision so held invalid or
unenforceable with a valid provision which is as similar as possible to the invalid or
unenforceable provision.
(f) This Note is to be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts; provided, however, that if the conflict
or choice of law rules would choose the law of another State, Maker hereby waives
such rules and agrees that Massachusetts' substantive, procedural and constitutional
law shall nonetheless govern.
(g) All notices required or permitted to be given hereunder shall be in
writing and delivered by Federal Express or similar overnight carrier or by daytime
courier or mailed postage prepaid by certified mail, return receipt requested, addressed
as follows:
if to Lender, to Hyannis Factory Outlet Center
25 New Chardon Street
Penthouse Suite Two
Boston, Massachusetts 02114
Attn: Robert A. Schlager
- 5 -
with a copy to: Eric R. Allon, Esq.
Bernkopf, Goodman & Baseman
125 Summer Street
Boston, Massachusetts 02110
if to Maker, to Cape Cod Community College Division
of Continuing Education
Route 132
West Barnstable, Massachusetts 02668
or to such other additional or different address or addresses as 30 days advance
written notice thereof is given to the other parry. Notice shall be deemed delivered on
the date received in the return receipt or on the date delivered by courier or overnight
carrier. The date of rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given shall be deemed to be the
date of receipt of the notice, demand or request sent.
(i) This Note may not be waived, changed, modified or discharged
orally, except by an agreement in writing signed the parry against whom the enforce-
mentof waiver, change, modification or discharge is sought.
(j) The underlined words appearing at the commencement of the
paragraphs are included only as a guide to the contents thereof and are not to be con-
sidered as controlling, enlarging or restructuring the language or meaning of those
paragraphs.
(k) As used herein, the terms "Maker and "Holder" shall be deemed to
include their respective heirs, successors, legal representatives and assigns, whether
voluntary by action of the parties or involuntary by operation of law.
(1) Maker hereby consents to the non-exclusive personal jurisdiction
of the federal and state courts located in Boston, Massachusetts in any and all actions
between Maker and Holder arising under or in connection with this Note or the Loan.
(m) Maker represents, warrants and covenants to Holder that (1) all of
the<proceeds of this Note will be used for payment of costs and expenses associated
with construction of improvements at the Premises pursuant to Tenant's Work as
defined in the Lease,(2) no part of the Loan has been or will be used for personal,
family, household or agricultural purposes, and (3) that no legislatively appropriated
funds of the Commonwealth of Massachusetts shall be used in connection with the
payment of all obligations due under this Note or the Lease and that such payments
and the execution and delivery of this Note and the Lease are in compliance with all
applicable laws and do not constitute a pledging of the credit of the Commonwealth of
Massachusetts.
- 6 -
For and in consideration of Holder's entering into the loan, each Maker,
being an experienced participant in commercial transactions, and having consulted with
counsel of its/his/her choosing, hereby waives any right to trial by jury with respect to
any action or proceeding (i) brought by maker, holder or any other person relating to (a)
the loan or (b) this note, or (ii) to which holder is a party. Each Maker hereby agrees
that this Note constitutes a written consent to waiver of trial by jury, and each Maker
does hereby constitute and appoint holder its/his/her true and lawful attorney-in-fact,
which appointment is coupled with an interest, and each Maker does hereby authorize
and empower Holder, in the name, place and stead of each maker, to file this note with
the clerk or judge of any court of competent jurisdiction as a statutory written consent to
waiver of trial by jury. Each Maker acknowledges that its waiver of trial by jury has
j been made knowingly, intentionally and willingly by each maker, and only after
consultation with sophisticated legal counsel of its/his/her own choosing, as part of a
I
bargained-for loan transaction.
EXECUTED as a sealed instrument as of April 22, 1993.
MAKER:
CAPE COD COMMUNITY COLLEGE
DIVISION OF CONTINUING EDUCATION
By:
Witness Richard Kraus, President
Duly Authorized
35832/4
6181: 04/29/93 03:57 PM
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- 7 -
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ADULT LEARNING CTR-
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540 MAIN STRE
1. All existing carpet to remain shall be professionall shampooed
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2.:-,t.,, Remove,all existin' shelf,standards and spackle holes E X N 6 10 P,L/A/--,J N
3. New partition layout shall be adi us'ted to accommodate existing acoustic tile suspension s stem. Any change in dimensions in excess of
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4. New partitions shall be constructed of 6" metal studs @ 16" o.c. with 5/8" F.C. gypsum board, taped and spackled
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